author: Mr. JUSTICE ALLOY

text:
    ARNOLD N. MAY BUILDERS, INC., Plaintiff and Counterdefendant-Appellant, v. NICK S. BRUKETTA, Defendant and Counterplaintiff-Appellee.
    Third District
    No. 80-619
    Opinion filed September 30,1981.

      Charles E. Covey, of Barash, Stoerzbach & Henson, of Galesburg, for appellant.
    Kent F. Slater, of Lucie, Heiser & Slater, of Macomb, for appellee.
   Mr. JUSTICE ALLOY

delivered the opinion of the court:

Counterdefendant Arnold N. May Builders, Inc. (hereinafter May Builders) appeals from the judgment entered in favor of counterplaintiff Nick S. Bruketta, in Bruketta’s counterclaim in negligence against May Builders. The jury returned a verdict for Bruketta in the amount of $38,641.68. The original action was filed by May Builders, and in it they sought recovery against Bruketta, on a contract with him for their construction of a cattle confinement building. Bruketta then counterclaimed against May Builders arguing he was entitled to a credit as against any amount due under the contract, based upon labor supplied by him, and also asserting a claim for damages to his cattle ás a result of May Builders’ negligence in failing to complete the confinement building in time for the winter of 1972-1973.

In the first action, the jury returned a verdict granting Bruketta a $4,575.61 credit for his labor, and it also assessed damages to him, as a result of May Builders’ negligence, in the amount of $19,907.90. May Builders appealed the latter damage award (Arnold N. May Builders, Inc. v. Bruketta (1978), 60 Ill. App. 3d 926, 377 N.E.2d 579), and we reversed that jury award, finding that opinion evidence on the ultimate issue was improperly admitted on the question of causation. (60 Ill. App. 3d 926, 933.) We remanded for a new trial on Bruketta’s claim for damages to his cattle from May Builders’ negligence.

The cause was then retried before a jury and the jury returned a verdict in favor of Bruketta in the amount of $38,641.68. May Builders appeals that verdict and judgment, and it argues (1) that Bruketta was guilty of contributory negligence as a matter of law; (2) that no causal connection was established between the acts of May Builders and the injury suffered by Bruketta; and (3) that the damages awarded were speculative, conjectural and argumentative. It seeks entry of a judgment n.o.v. on the first two issues, or alternatively, a new trial on the issue of damages.

The - record discloses the following pertinent facts. The contract between May Builders and Bruketta was entered into in May 1972, and it called for the construction of a cattle confinement building on Bruketta’s farm m Fulton County. As part of the contract, Bruketta agreed to construct the foundation for the building and to install the slats, or flooring, over the confinement pit. While the foundation for the building was completed by Bruketta in early September, there was a problem in obtaining the slats. Carl Johnson, an agent for May Builders, informed Bruketta in early October that his company and the supplier of the slats were engaged in a dispute which prevented them from getting delivery of the slats for Bruketta’s building. Bruketta then arranged for direct delivery and payment between himself and the supplier. The slats arrived in October and were in place by the first part of November 1972.

Although May Builders had told Bruketta that the building would be completed before the winter, Bruketta, at this time, was worried about the approaching winter. He told Carl Johnson about this time that he wanted to purchase his feeder cattle for the coming year. Johnson told him to “go ahead and buy them.” Johnson further told him that he need not take his normal steps to winterize the feed lot, as he had in the past, since the confinement building would be ready before winter to house the cattle.

In years past, Bruketta had hauled in large quantities of corn cobs for the open feed lot, the purpose of which was to prevent the cattle from bogging down and suffering exposure in the open lot during the bad winter months. Relying upon Johnson’s representations, Bruketta purchased 322 head of cattle around the first of November, putting them in the open lot without benefit of corn cob mounds. Representations had been made to Bruketta that the building would be completed four to five weeks after the start of construction. Work on the confinement building, by a subcontractor of May Builders, began in November. However, when mid-December arrived, the building was still incomplete, and unsatisfactory progress was being made by May Builders’ subcontractor. Work continued to progress slowly through December and January. In the first week of February 1973, the subcontractor in charge of the construction was dismissed by May Builders and their own crew took over the job. The cattle confinement building was finally completed around the first of April 1973.

During the entire period of construction, that is, during the winter months of ’72-’73, Bruketta’s cattle remained in the open, exposed feed lot, without benefit of the cob mound or other protection. Bruketta’s claim for damages was premised upon the death rate among his herd over the winter and on the reduced rate of weight gain by the surviving herd. Both of these factors were alleged by Bruketta to have been caused by failure to winterize the feed lot, which failure resulted from his reliance upon the representations of May Builders. Bruketta claimed damages for the cost of feeding the cattle an additional 123 days, which was required to bring them up to normal selling weight. Bruketta placed his additional costs at $38,641.68, and the jury returned a verdict in his favor for that amount. Additional facts will be set forth as necessary within our treatment of the issues on appeal.

The first issue raised by May Builders is whether the evidence established Bruketta’s contributory negligence as a matter of law. May Builders argues that Bruketta knew the building was behind schedule when he purchased the cattle, and that when it became evident to him that it was not going to be completed before winter, he nevertheless made no effort to winterize the open lot so as to protect his cattle. The applicable standard on this issue was stated by us in Atchley v. Berlen (1980), 87 Ill. App. 3d 61, 64-65, 408 N.E.2d 1177, quoting from Swenson v. City of Rockford (1956), 9 Ill. 2d 122, 127-28:

“ ‘To be guilty of contributory negligence as a matter of law it must appear that all reasonable minds would agree that assuming the facts as presented by the plaintiff and all reasonable inferences that may be drawn therefrom in her favor, plaintiff is nevertheless guilty of contributory negligence. [Citations.]
Whether a plaintiff is guilty of contributory negligence is ordinarily * * * a question of law only when the evidence is so clearly insufficient to establish due care that all reasonable minds would reach the conclusion that there was contributory negligence.’ ”

In examining the evidence in this case we do not find that it was so clearly insufficient so as to take the question away from the jury.

The evidence in the record, viewed, as it must be, most favorably to Bruketta, indicates that he relied upon the representations of May Builders’ agents in purchasing the cattle in early November. There is no dispute that he was informed the building would be done by winter and that he need not winterize his open feed lot. Based upon these representations, one from a man found reliable in the past, Carl Johnson, Bruketta reasonably proceeded without taking precautions to provide winterizing material for the feed lot. Once the winter had begun in earnest, and the work on the building still lagged behind, there was little Bruketta could do to adequately provide the necessary protection, according to his own testimony. Bruketta testified that the necessary amount of corn cobs (100 to 150 truck loads) was unavailable to him after November, as the corn processors from whom he bought, sold them around that time. Two of defendant’s witnesses testified that in an open feed lot situation, corncobs, dirt or rock can be used to build up a feed lot. Yet, Bruketta’s testimony was that rock was not a feasible alternative for him, and neither was dirt or pasturing at that time. The reasonableness of these allegedly alternative methods was a question for the jury to assess. Questions of credibility and the weight of the evidence are for the jury to decide. (McCommons v. Moorman Manufacturing (1980), 81 Ill. App. 3d 708, 401 N.E.2d 1354.) May argues that this is a case where Bruketta was presented with two alternative ways of proceeding, one dangerous and the other safe, and that he consciously chose the dangerous route of not doing anything to protect his herd, in the face of the winter conditions in the open feed lot. However, in the instant case, we conclude that the evidence, viewed most favorably to Bruketta, does not establish that he had available to him the alternatives posited, under all the circumstances. Nor can we discern a basis for finding contributory negligence as a matter of law in the manner in which Bruketta finished putting the slats in place. The slats were in place as of November 1972, which gave May Builders enough time, by their own reckoning, to finish the building before the winter. The issue of contributory negligence properly went to the jury.

The next issue raised is whether the evidence supported a conclusion that the injury to Bruketta’s cattle was causally connected to May Builders’ negligence. May Builders argues that no sufficient causal connection was established. The evidence, with reasonable inferences therefrom in favor of Bruketta, indicated that the cattle he purchased in November 1972 were similar to those he had purchased in previous years. They were purchased at the same weight and from the same source as his cattle purchased in previous years. They were of similar breed, quality, and type as those purchased in the prior nine years. They were kept in the same feed lot facilities, and the management techniques employed were the same as in prior years. The feed ration was the same, and testimony indicated that for the severe winter months weather conditions did not significantly differ from the norm. The principal difference, according to Bruketta, was that during the winter of ’72-’73 his open feed lot was not winterized with corn cob mounds, as it was in the past. This lack of winterization, as noted, was the result of the representations made by May Builders to him concerning the completion of the confinement building and the need for other protection in the open lot. Bruketta further testified that while in prior years his cattle gained an average of 2.25 to 2.5 pounds per day, in ’72-’73 they gained only 1.53 pounds per day. The death rate for ’72-’73 was 14 head, while the normal annual death loss was one or two. An animal nutritionist, testifying for Bruketta, stated that the effective temperature of feeder cattle in an open lot is controlled by mounding of dirt or cobs to afford the cattle a place to lay in wintertime, to keep them out of the mud. The cobs provide insulation when the cattle lie down and also protection from the wind and a gathering place for the herd. He further stated that without such protection from mounds, the animals are subjected to much greater and more severe exposure to the cold. If required to stand in the mud and water, their feed efficiency is reduced, and thermal stress results. Stress from the cold and wet conditions requires the cattle to use more energy in order to maintain internal temperatures. The obvious inference from the nutritionist’s testimony is that exposure to the winter in an unwinterized feed lot results in reduced feed efficiency which results in an impeded and reduced rate of weight gain. When energy from the feed is being used to maintain body temperature, in the face of severe cold, it is not available for weight gain to the same extent as if the animal were protected from the severe winter. Plaintiff’s evidence, and reasonable inferences therefrom, is sufficient to support the jury’s conclusion that the reduced rate of weight gain encountered by Bruketta’s cattle during that winter was caused by the failure to winterize the feed lot, as had been done in previous years by him.

While May Builders is correct in stating that its testimony indicated that many factors may affect rate of weight gain, including weather conditions, feed rations, and type of cattle, the evidence in the instant case indicates that those other factors, for the most part, were substantially similar to conditions as existed in previous years wherein a more average rate of weight gain was achieved. The primary difference in ’72-’73, and one shown to have a direct effect on rate of gain, was the lack of winterization in the feed lot. The jury had before it the evidence, contradictory as it was, and it made a determination based upon that evidence. We find the issue of causation was properly submitted to the jury and that the evidence in the record supports its conclusion on that issue.

The final issue raised by May Builders is whether the damage award by the jury was purely speculative, conjectural and argumentative. The evidence, as indicated previously, showed that while in previous years Bruketta’s cattle gained at the rate of 2.25 to 2.5 pounds per day, in ’72-73, under the adverse conditions in the unwinterized feed lot, they gained at the rate of only 1.53 pounds per day. While there was some contradiction in the evidence on a normal weight gain, Bruketta’s figures found ample support in the testimony. Bruketta’s basis for computation for the damages was the extra costs of feeding the cattle in August, September, and October of 1973, in order to bring them up to salable weight. It was his contention that he had to feed 308 head of cattle an extra 123 days in order to ready them for market. The daily cost of feed was set at $1.02 per head. The costs of feed was stipulated to by defendant at trial. However, there was considerable contradictory testimony concerning the proper feed ration, both as to amount and mixture. We need not enter into an examination of that testimony, except to note that it was contradictory and that such matters are for resolution by the jury. The evidence presented by Bruketta was sufficient to show a substantial departure from rate of weight gain in prior years and from normal rate of weight gain for feed cattle.

As stated in Schatz v. Abbott Laboratories, Inc. (1972), 51 Ill. 2d 143, 147-48, 281 N.E.2d 323:

“ ‘It is perhaps true that absolute certainty as to the amount of loss or damage in such cases is unattainable, but that is not required to justify a recovery. All the law requires is that it be approximated by competent proof. That proof of the exact amount of loss is impossible will not justify refusing compensation.’ ”

It is well established that the ascertainment and assessment of damages is a question of fact peculiarly within the province of the jury. (Werner’s Furniture, Inc. v. Commercial Union Insurance Co. (1976), 39 Ill. App. 3d 59, 70, 349 N.E.2d 616.) In the instant case the jury determined that Bruketta’s cattle did not sustain normal weight gain during the winter months due to the lack of proper winterization of the open feed lot. The evidence before the jury indicated that as a result of the lack of normal weight gain during the winter, Bruketta was forced to feed the cattle an extra 123 days in order to bring them to market weight. Bruketta indicated the amount of extra feed he fed them during that time and also the costs for that feed. We find that such evidence provided an adequate and competent basis upon which to make an award of damages.

At trial the thrust of defendant’s objections and argument on the damage question focused upon the reasonableness of the rations, their amounts and mixture. No issue or argument was presented to the jury that the damages should be based upon a comparison between rations at the end of the growing cycle versus rations at the beginning or in the middle of the growing cycle. Neither was objection made to Bruketta’s basing his figures on feeding rations at the end of the feeding cycle. Having failed to make such objection, or otherwise raise the issue before the jury in the trial court, May Builders may not now, for the first time on appeal, bring forth the issue and argument. (In re Estate of Kime (1976), 42 Ill. App. 3d 505, 356 N.E.2d 350.) It is an elementary principle of appellate review that issues, contentions and arguments not presented to the court below will not be heard for the first time on appeal. There have been two trials already in this cause and counsel for defendant had ample time in which to prepare their case. Arguments and contentions as to the proper measure of damages should have been brought forth below, in order to preserve them for appeal. As to the question of mitigation, the jury was properly instructed on the question and found that May Builders had not proven Bruketta’s failure to mitigate under the circumstances. This question is directly related to the question of contributory negligence and the evidence in the record supports the jury’s conclusions on both questions. We find no basis to conclude that, as a matter of law, Bruketta failed to mitigate his damages.

The judgment of the Circuit Court of Fulton County is affirmed.

Affirmed.

SCOTT, P. J., and STOUDER, J., concur.


source: Caselaw Access Project

author: Mr. JUSTICE STOUDER

license: Public Domain

text:
    THE ENVIRONMENTAL PROTECTION AGENCY, Petitioner, v. THE POLLUTION CONTROL BOARD et al., Respondents.
    Third District
    No. 81-32
    Opinion filed September 30,1981.
    Tyrone C. Fahner, Attorney General, of Chicago (John Van Vranken, Assistant Attorney General, of counsel), for petitioner.
    Percy Lee Angelo and James W. Gladden, Jr., both of Mayer, Brown & Platt, of Chicago, for respondents.
   Mr. JUSTICE STOUDER

delivered the opinion of the court:

This is a petition for direct review, pursuant to section 41 of the Environmental Protection Act (Ill. Rev. Stat. 1977, ch. lllJé, par. 1041), of a decision of the Illinois Pollution Control Board (hereinafter the Board). That decision reversed the Environmental Protection Agency’s (hereinafter the Agency) denial of an application for renewal of an operating permit and for a construction permit submitted by Sherex Chemical Company (hereinafter Sherex).

Sherex owns and operates a chemical manufacturing plant in Maple-ton. The plant includes two coal-fired boilers and a 100-foot boilerhouse stack. The application at bar sought approval of the continued use of the boilers and construction of a 40-foot extension of the stack.

A brief history lends perspective to this litigation. Sherex is the successor to Ashland Chemical Company (hereinafter Ashland). Ashland’s original application for an operating permit was denied in June 1975 as the company failed to meet the particulate emission standards of Air Pollution Rule 203(g)(1)(B) (Ill. P.C.B. Rules and Regs., ch. 2, Rule 203(g)(1)(B)) (hereinafter Rule 203) and the sulfur dioxide emission standards of Air Pollution Rule 204(c)(1)(A) (Ill. P.C.B. Rules and Regs., ch. 2, Rule 204(c)(1)(A)) (hereinafter Rule 204). Thereafter a variance was granted upon the conditions that baghouse fabric filters would be installed, low sulfur coal would be used, and stack tests would be performed. (See Ashland Chemical Co. v. Pollution Control Board (1978), 57 Ill. App. 3d 1052, 1053-54, 373 N.E.2d 826, 827, appeal denied (1978), 71 Ill. 2d 606 (hereinafter Ashland I).) After Rules 203 and 204 were invalidated in Commonwealth Edison Co. v. Pollution Control Board (1974), 25 Ill. App. 3d 271, 323 N.E.2d 84, affd in relevant part (1976), 62 Ill. 2d 494, 343 N.E.2d 459, Ashland again applied for an operating permit, indicating it would install the filters but postpone use of low sulfur coal. In lieu of submitting technical data, Ashland relied on the Board’s previous finding that its boilers effected no ambient air standard violations (See Ashland I, 57 Ill. App. 3d 1052, 1054, 373 N.E.2d 826, 827.) The Agency and Board then denied the permit as Ashland failed to show compliance with the ambient air quality standard of Air Pollution Rule 102 (Ill. P.C.B. Rules and Regs., ch. 2, Rule 102) (hereinafter Rule 102). (See Ashland I, 57 Ill. App. 3d 1052, 1054, 373 N.E.2d 826, 827.) On appeal, the court disagreed, stating:

“While the Board’s earlier finding would not necessarily be binding on the Board in the face of contradictory evidence, we believe it was prima facie evidence of compliance with Rule 102. Furthermore, Ashland introduced evidence that its Mapleton plant was located within the significant impact área of a supplemental control system (SCS) whereby two power companies agreed to switch fuels or curtail loads when atmospheric conditions for dispersion of contaminants are poor. According to the testimony of an Agency engineer, there should be no air quality violations within the area where Ashland’s plant is located if SCS is working as intended. Since the Agency offered no contrary data, the record affords no basis for the denial of a permit and the Board’s ruling must be reversed.” Ashland I, 57 Ill. App. 3d 1052, 1056, 373 N.E.2d 827, 828-29.

The Board had meanwhile “revalidated” the stricken Rules 203 and 204. Ashland sought review of the regulations and they were vacated. (Ashland Chemical Co. v. Pollution Control Board (1978), 64 Ill. App. 3d 169, 381 N.E.2d 56 (hereinafter Ashland II).) Other challenges were similarly successful. (Illinois State Chamber of Commerce v. Pollution Control Board (1978), 67 Ill. App. 3d 839, 384 N.E.2d 922, appeal dismissed (1979), 78 Ill. 2d 1, 398 N.E.2d 9.) Beginning in 1978, Ashland and Sherex submitted and resubmitted their application for an operating permit, and, ultimately, for the construction permit as well. Each time this was done, the companies attempted to respond to whatever objections the Agency presented. When both permits were again denied in 1980, Sherex appealed to the Board, which reversed the Agency and granted the permits. That reversal is the subject of these proceedings.

Two issues are presented for our review. The first is whether the Agency properly denied the permit applications for lack of information; the second, whether the permits were properly denied on the basis of violation of Rule 204.

Turning to the first issue, the Agency contends that the information submitted by Sherex was insufficient to verify compliance with the sulfur dioxide ambient air quality standards of Air Pollution Rule 308 (Ill. P.C.B. Rules and Regs., ch. 2, Rule 308 (hereinafter Rule 308)). Specifically the Agency stated in its denial letter that “[o]nly the conclusions of the modeling study conducted for Sherex by Dames and Moore were submitted with the permit application.”

Air quality simulation modeling is a method of using data processing techniques to predict hypothetical ambient air quality concentrations based on information about emission rates from particular sources and weather data. After Rule 204 was again invalidated in Ashland II and a malfunction in Ashland’s baghouse was corrected, compliance with Rule 308 remained at issue. While Ashland and Sherex approached this matter in a number of ways, the company ultimately decided to raise its boiler-house stack 40 feet to “GEP”. (“GEP” or “good engineering practice” is used to describe a stack height which, for any particular plant, is superior in effecting emission dispersion and preventing excessive concentrations of pollutants due to downwash or eddy effects.) Using the Agency’s CDM and a QSTM models and the CRSTER model approved by the United States Environmental Protection Agency (hereinafter USEPA), the Dames and Moore study concluded no Rule 308 violations would occur with or without the stack extension. The extension would, however, apparently effect lower sulfur dioxide concentrations and eliminate a down-wash problem. The Agency offered no contrary data.

While the denial letter failed to apprise Sherex of the specific information the Agency deemed necessary, three items were proffered to the Board. Given that Sherex offered to supply additional information repeatedly during these proceedings and further offered to discuss the modeling with the Agency, the better practice would have been to request the additional information. The Agency accurately contends it has no statutory mandate to make such a request, a position the Board characterizes as “a somewhat capricious exercise of its powers under the Act * * (Sherex Chemical Co. v. Illinois Environmental Protection Agency, No. PCB 80-66, slip op. at 3 (P.C.B. Oct. 2, 1980).) Sherex accurately contends that under section 39(a) of the Environmental Protection Act (Ill. Rev. Stat. 1977, ch. 111/2, par. 1039(a)), the Agency, when denying a permit application, must state “the specific type of information, if any, which the Agency deems the applicant did not provide * ° While the failure to do so in its denial letter presents an opportunity for remand of this cause, this would be a circuitous continuation of the litigants’ and privy’s six-year dispute. Rather than require the parties to resubmit the same alleged informational deficiency in another proceeding, we shall briefly address this issue on its merits.

The three types and specific items of information which the Agency claims were needed to determine compliance with Rule 308 are meteorological data, an explanation of how receptor points were selected, and an indication that the model monitor was representative of the air quality near the Sherex plant. We shall discuss each in turn.

At the hearing before the Board, the Agency accurately stated that Sherex had failed to indicate whether hourly or three-hourly meteorological data were utilized in the modeling. From this, it concluded Sherex failed to meet its burden of proof regarding the data. The Agency apparently elected to ignore the fact that the CRSTER model specifically calls for hourly data, and its own review documents indicate the modeling was consistent with USEPA guidelines requiring hourly data. Dennis Lawler, testifying for the Agency, said that it was familiar with, and respected, the work of Dames and Moore and was aware they always used hourly meteorological data in their modeling. Under these circumstances, we do not find the failure to submit the information was fatal to the application.

The Agency’s second point at the hearing was that Sherex had not explained how receptor sites were selected to insure they reflected the point of maximum sulfur dioxide concentration. Interestingly, Lawler admitted that in the Agency’s own recent modeling of the Peoria area, it had taken no special steps to determine such maximum receptor points. Lawler further admitted that Dames and Moore had used twice the number of points that are commonly considered acceptable and therefore would be more likely to have identified the appropriate maximum location. Sherex made an offer of proof that a model, recommended in the CRSTER manual, was used to determine the receptor points, but the Board did not deal with this question. Again, we do not find this lack of information fatal to the application.

Finally, the Agency contended that Sherex gave no indication that the model monitor was representative of the air quality near the plant. This overlooks the fact that Sherex, in its application, stated that it selected the Bowell monitoring site as it was closest of the 17 possible locations. Sherex’s point of maximum concentration occurred within 2.0 kilometers of its operation. The site chosen was located 1.9 kilometers from the plant and in the direction of the most frequently prevailing wind. As Sherex has given an indication that the model monitor was representative of the air quality near the plant, we fail to find this information lacking.

While the Board did not specifically consider the above three points, it did find that the modeling showed no violations of the ambient air quality standards for sulfur dioxide. It accepted the validity of the modeling, as the Agency had done when its results supported an earlier permit denial. The Board further found no relationship between extending the stack height 40 feet and causing or contributing to violations of the above standards. The record suggests no reason to disagree with the Board’s conclusions. The Agency improperly denied the permit application for lack of information.

The second issue presented for our review is whether the permits were properly denied on the basis of violation of Rule 204. The Agency does not contend that the permits were properly denied under the provisions of the Environmental Protection Act (Ill. Rev. Stat. 1977, ch. 111M, par. 1001 et seq.); rather, it contends it was required to deny the permits under the provisions of the Clean Air Act (42 U.S.C.S. §7401 et seq. (1981 Supp.)). Sherex responds that the Agency is barred from now raising this issue under principles of res judicata, citing its relationship as privy to Ashland.

We need not consider whether the Agency is so barred as this issue has been recently addressed in Celotex Corp. v. Illinois Pollution Control Board (1981), 100 Ill. App. 3d 520. In Celotex, as in this cause, the Agency argued that, while Rule 204 has been invalidated by the Illinois courts, it remáins a viable part of the Illinois State implementation plan. The Agency views its mandate as to enforce the plan, and hence, Rule 204.

Without reaching the question of whether the rule is enforceable in the Federal courts, Celotex reiterated the fact that it is not enforceable in the courts of this State (see also Illinois v. United States Environmental Protection Agency (7th Cir. 1980), 621 F.2d 259, 262) and will not be enforceable until the mandates of the Illinois courts are heeded. Given this specific holding, the permits were not properly denied on the basis of violation of Rule 204.

Accordingly, the order of the Pollution Control Board reversing the denial of the permits at bar and its order directing the issuance of the permits are affirmed.

Affirmed.

ALLOY and HEIPLE, JJ„ concur.


text:
    THE ENVIRONMENTAL PROTECTION AGENCY, Petitioner, v. THE POLLUTION CONTROL BOARD et al, Respondents.
    Third District
    No. 81-81
    Opinion filed September 30,1981.
    Tyrone C. Fahner, Attorney General, of Chicago (John Van Vranken, Assistant Attorney General, of counsel), for petitioner.
    Roy M. Harsch, Richard J. Kissel, and Jeffrey C. Fort, all of Martin, Craig, Chester & Sonnenschein, of Chicago, for respondents.
   Mr. JUSTICE ALLOY

delivered the opinion of the court:

Another chapter in the continuing saga of the Environmental Protection Agency’s attempts to enforce invalid Air Pollution Control Rule 204 is before us on this appeal.

Bemis Company, Inc. (hereinafter Bemis) on April 22, 1980, sought from the Illinois EPA an operating permit for its coal-fired boilers at the company’s paper manufacturing plant in Peoria. The application for a permit was made pursuant to the requirements of the Illinois Environmental Protection Act (Ill. Rev. Stat. 1977, ch. 111M, par. 1001 etseq.) and applicable regulations. The Illinois EPA denied Bemis’ application for an operating permit, basing that denial, in pertinent part, upon an alleged violation of Rule 204(c)(1)(A) of the Pollution Control Board’s Rules and Regulations. Rule 204 (c) (1) (A) set limitations on sulfur dioxide emissions from existing sources in the Peoria area. Rule 204(c)(1)(A) had been declared invalid by the State courts on several occasions, as being arbitrary and capricious. Commonwealth Edison Co. v. Pollution Control Board (1974), 25 Ill. App. 3d 271, 323 N.E.2d 84, affd in relevant part (1976), 62 Ill. 2d 494, 343 N.E.2d 459; Ashland Chemical Co. v. Pollution Control Board (1978), 64 Ill. App. 3d 169, 381 N.E.2d 56; Illinois State Chamber of Commerce v. Pollution Control Board (1978), 67 Ill. App. 3d 839, 384 N.E.2d 922, appeal dismissed (1979), 78 Ill. 2d 1, 398 N.E.2d 9.

As a result of the action respecting Rule 204 taken by the State courts, the United States EPA issued notices of deficiency in 1976 and again in 1979 (41 Fed. Reg. 32,302,32,303-04; 44 Fed. Reg. 40,723-24) with respect to Illinois’ State Implementation Plan (hereinafter SIP). The United States EPA in those notices found that because of the action by the State courts vacating Rule 204, the SIP for Illinois was deficient in that it did not contain enforceable regulations governing S02 emissions. The United States EPA in the notices requested that a revision of the Illinois SIP be submitted, so as to correct the deficiencies. No action submitting a revision of the vacated regulation was taken. Despite the fact that the Illinois courts had vacated Rule 204 under the State law which provided for its promulgation, and despite the fact that the United States EPA had twice made findings that the SIP for Illinois was deficient for failing to have a validated rule governing S02 emissions, the Illinois EPA based its denial of the Bemis permit on Rule 204(c) (1) (A). The Illinois EPA position in this administrative action was that, even though the Rule has been invalidated by the State courts, it remained, nevertheless, a part of the SIP, which itself had the force of Federal regulation by virtue of the approval of the Illinois SIP in 1972 by the administrator of the United States EPA. Therefore, the EPA argued, Rule 204(c)(1)(A) remains valid and enforceable, by it, in permit proceedings such as those present in the instant case.

Bemis appealed the denial of the permit to the Illinois PCB, and the PCB reversed the denial by the EPA, finding that it had only to make the determination based upon State law, and not upon the SIP, whatever its status was with respect to Rule 204. The Illinois EPA has appealed the decision of the PCB granting the permit to Bemis, and the EPA argues that Federal law prohibits the permit to issue, and that the PCB must follow that Federal law. Before addressing the EPA argument, it is necessary to set forth the history behind Rule 204 and its treatment by the administrative agencies and the courts.

The Clean Air Act Amendments of 1970 “represented a drastic revision of earlier Federal air quality standards.” (Appalachian Power Co. v. Environmental Protection Agency (4th Cir. 1973), 477 F.2d 495, 497, cited in Indiana & Michigan Electric Co. v. Environmental Protection Agency (7th Cir. 1975), 509 F.2d 839,841.) Both in 1970, and again in 1977, when the Act was amended, Congress recognized “that the prevention and control of air pollution at its source is the primary responsibility of the States and local governments.” (42 U.S.C.S. §7401(a)(3) (1981 Supp.).) To achieve this goal, each State was required to develop and submit to the United States EPA a State implementation plan which provided for the implementation, maintenance, and enforcement of national primary and secondary ambient air quality standards. (42 U.S.C.S. §7410(a) (1981 Supp.).) Illinois developed and submitted its plan, included in which was Rule 204 of the Air Pollution Rules and Regulations, and Illinois’ SIP was approved by the United States EPA on May 31, 1972. Approval by the United States EPA was challenged, but it was upheld by the Seventh Circuit Court of Appeals in Indiana & Michigan Electric Co. v. Environmental Protection Agency (7th Cir. 1975), 509 F.2d 839. The challengers in that case, among other things, argued that to the extent that the Clean Air Act permitted approval of SIPs without considering challenges based upon technological feasibility and economic impact, the Act violated due process. The Seventh Circuit rejected the due process argument, concluding that challenges on that basis could be made in enforcement proceedings or through the State courts. It stated:

“In addition, petitioners have a right to challenge the reasonableness of state plans in the state courts, and as the respondent concedes, if ‘part of a state implementation plan is held invalid by a state court, the state would have to revise that part. Should the state fail to do so, the Administrator must propose and promulgate a revision * ° V ” (509 F.2d 839,847.)

Thereafter, in Illinois, Rules 203 and 204 of the Air Pollution Rules and Regulations were challenged in the State courts, based upon the PCB’s failure to take into account technical feasibility and economic reasonableness in the promulgation of the rules. (Ill. Rev. Stat. 1977, ch. lllM, par. 1027(a).) The State court challenges were successful, and the rules were vacated as being arbitrary and capricious. (Commonwealth Edison Co. v. Pollution Control Board (1974), 25 Ill. App. 3d 271, 323 N.E.2d 84, affd in relevant part (1976), 62 Ill. 2d 494, 343 N.E.2d 459.) As a result, as previously mentioned, the United States EPA issued a notice of deficiency (41 Fed. Reg. 32,302 (Aug. 2, 1976)), based upon the lack of valid rules in the SIP.

The PCB, on July 7,1977, attempted to revalidate the stricken rules by order, without complying with the Illinois Supreme Court’s directive in the previous case. This attempted revalidation was challenged and the rules were again vacated. (Ashland Chemical Co. v. Pollution Control Board (1978), 64 Ill. App. 3d 169, 381 N.E.2d 56; Illinois State Chamber of Commerce v. Pollution Control Board (1978), 67 Ill. App. 3d 839, 384 N.E.2d 922, appeal dismissed (1979), 78 Ill. 2d 1, 398 N.E.2d 9.) Again a notice of deficiency was issued by the United States EPA (44 Fed. Reg. 40,723 (July 12, 1979), which stated:

“The cumulative effect of these actions [State court decisions] is that at the present time the Illinois SIP does not contain validated rules for the following:
(1) • • °
(2) * 6 e
(3) Sulfur Dioxide Emission Rates for Existing Fuel Combustion Sources Located in the Chicago, St. Louis (Illinois), and Peoria Major Metropolitan Areas, Solid Fuel Burned Exclusively.”

The notice further stated:

“We are requesting that within 60 days from the date of this Notice the Governor submit a schedule to the Regional Administrator, EPA Region V, detailing the actions necessary for the validation of Rules 203(g)(1), 204(a)(1) and 204(c)(1)(A) according to the instructions of the Illinois Supreme Court in Commonwealth Edison Co., supra. The schedule should identify the agencies that are responsible for the plan revisions and the dates that action will be completed by the various agencies.”

At the time of oral argument in this case, no rules had been repromulgated and no revision made of the Illinois SIP.

Thus, at the time Bemis was denied an operating permit by the Illinois EPA, being April 1980, on the basis of Rule 204(c) (1) (A), that Rule had been vacated by the Illinois courts. Furthermore, the United States EPA, charged with overseeing and administering the Clean Air Act, had twice determined that the Illinois SIP was deficient because it did not contain validated rules governing SO2 emissions.

The Illinois EPA’s argument for its action is based upon two provisions of the Clean Air Act (42 U.S.C.S. §7410 et seq. (1981 Supp.)):

“Section 110(i)
(i) Except for a primary nonferrous smelter order under Section 119, a suspension under section 110(f) or (g) (relating to emergency suspensions), an exemption under section 118 (relating to certain Federal facilities), an order under section 113(d) (relating to compliance orders), a plan promulgation under section (c) of this section, or a plan revision under subsection (a) (3) of this section, no order, suspension, plan revision, or other action modifying any requirement of an applicable implementation plan may be taken with respect to any stationary source by the State or by the Administrator.”
“Section 116
Except as otherwise provided in sections 119(c) (e), and (f) (as in effect before the date of the enactment of the Clean Air Act Amendments of 1977), 209, 211(c)(4), and 233 (Preempting certain State regulation of moving sources) nothing in this Act shall preelude or deny the right of any State or political subdivision thereof to adopt or enforce (1) any standard of limitation respecting emissions of air pollutants or (2) any requirement respecting control or abatement of air pollution; except that if an emission standard or limitation is in effect under an applicable implementation plan or under section 111 or 112, such State or political subdivision may not adopt or enforce any emission standard or limitation which is less stringent than the standard or limitation under such plan or section.”

The Illinois EPA argument is that Rule 204(c)(1)(A) of the SIP has never been revised pursuant to the Clean Air Act’s stringent provisions for revision, and that therefore Rule 204(c) (1) (A) remains a valid and enforceable part of the Illinois SIP. It reads section 110(i) as preventing any action by Illinois, either by its legislative, executive or judicial branches, to modify the SIP, unless such action conforms to the procedure for revision set out in the Clean Air Act. The core of the argument is that the State court decision vacating Rule 204(c)(1)(A), on the basis that its promulgation was not in accord with State law, has no effect at all upon the SIP, as approved by the administrator of the United States EPA. From that point, it argues that section 116, which prevents any State from enforcing or adopting an emission standard or limitation less stringent than that in effect under an SIP, acts to prevent the PCB from granting Bemis its operating permit, since Bemis does not meet the emission standard for S02 set forth in Rule 204(c)(1)(A) of the SIP.

We cannot read these sections of the Act to reach the result argued' for by the Illinois EPA. We find that when Congress, in section 110(i), stated that no action suspending, revising or modifying a requirement of an applicable implementation plan could be taken by the “Stale,” it did not intend to preclude legitimate action, taken by State courts, acting in review over the underlying State legislation upon which a State’s SIP was based. We cannot conclude that Congress’ intention in section 110 (i) was to nullify a lawful and legitimate decision by the highest court of a State, which decision struck down part of the plan under State law. Yet, were we to adopt the Illinois EPA’s construction of section 110(i), the result would be just that, for those State court decisions would be rendered essentially meaningless, in that despite them, the Illinois EPA could continue to enforce an invalid rule in the State courts. Therefore, we conclude that the actions by the courts of Illinois in vacating Rule 204(c) (1) (A) were not plan revisions, suspensions or modifications “by the State” of its applicable implementation plan, within the meaning of section 110(i). The effect of the State court decisions vacating the rule was to leave the SIP without a valid rule governing S02 emissions from existing stationary sources. Rule 204(c)(1)(A), as a result of the State decisions, was no longer a valid and enforceable part of the SIP. This was recognized and stated by the United States EPA in its notices of deficiency issued as a result of those State court decisions. The State court decisions, while materially affecting the SIP, by rendering a portion invalid and unenforceable, were not modifications or revisions such as were contemplated in section 110(i).

Furthermore, since, by virtue of the State court decisions, Rule 204(c)(1)(A) was invalid and unenforceable under either State law or within the SIP, therefore section 116 did not apply, since by its terms it prevents the enforcement of emissions standards or limitations in effect under an applicable implementation plan. To read these sections so as to arrive at a contrary conclusion, which would nullify and render meaningless the State court decisions, even as they affect State agencies charged (under State agencies charged) under State law, would be to reach an absurd and illogical result. It is a long-established principle of statutory construction that constructions and interpretations of statutory language which lead to absurd results are to be avoided, even if they be supported by the literal language of a provision. Huidekoper’s Lessee v. Douglass (1805), 7 U.S. (3 Cranch) 1, 66, 72, 2 L. Ed. 347, 368, 370; Perry v. Commerce Loan Co. (1966), 383 U.S. 392, 400, 15 L. Ed. 2d 827, 833-34, 86 S. Ct. 852, 857.

We would note also that the result we reach on this issue is in accord with decisions by two Federal District Courts (Illinois v. Celotex Corp. (C.D. Ill., No. 80-1531, filed May 26, 1981); Sierra Club v. Indiana & Michigan Electric Co. (S.D. Ind., No. W.D. 81-8-C, filed June 5,1981) and with dicta expressed by the Seventh Circuit (Illinois v. United States Environmental Protection Agency (7th Cir. 1980), 621 F.2d 259). (But see Illinois v. Commonwealth Edison Co. (N.D. Ill. 1980), 490 F. Supp. 1145.) In the Celotex case, Federal Judge Robert Morgan, dismissing an enforcement action based on Rules 203(g)(1)(B) and 204(c)(1)(A), stated:

“It would be an anomoly, if not a denial of defendant’s due process rights, to allow, at this point, full enforcement of those invalid regulations, especially by the State of Illinois, which is totally barred in its own courts. Plaintiffs have argued that unless the regulations can be enforced in federal court, polluters are totally free to continue to pollute, and the enforcers have no protection until the State of Illinois acts to repromulgate the rules. It is apparently not true, however, that a suit of this kind is the only alternative open to plaintiffs.”

In Illinois v. Commonwealth Edison Co., the Seventh Circuit, in dicta, commented:

“Counsel for the state argues that we should remove the ‘cloud’ over state enforcement efforts caused by the notice [of deficiency]. The decisions of the Supreme Court of Illinois create more than a ‘cloud.’ The decisions are an absolute bar to enforcement in the state courts until the mandate of the court in Commonwealth Edison is satisfied by the Pollution Control Board. The Notice of Deficiency only reflects the state court decisions. The SIP by reason of the state court decisions cannot be enforced by the state in its own courts as contemplated by the Act. It appears that satisfying the Supreme Court of Illinois will also satisfy the Administrator of the EPA.” (621 F.2d 259, 262.)

For the reasons stated in this opinion, we affirm the decision of the Pollution Control Board, overturning the denial of a permit by the EPA, and ordering that an operating permit be issued to Bemis.

Affirmed.

STOUDER and BARRY, JJ., concur.


author: Mr. JUSTICE DOWNING

text:
      In re LOREN MARQUARDT.—(THE PEOPLE OF THE STATE OF ILLINOIS, Petitioner-Appellant, v. LOREN MARQUARDT, Respondent-Appellee.)
    First District (2nd Division)
    No. 80-2582
    Opinion filed October 6,1981.

      Richard M. Daley, State’s Attorney, of Chicago (Glenn E. Carr and Mark R. Davis, Assistant State’s Attorneys, of counsel), for the People.
    James J. Doherty, Public Defender, of Chicago (Ina S. Marks, Assistant Public Defender, of counsel), for appellee.
   Mr. JUSTICE DOWNING

delivered the opinion of the court:

Does drug dependence constitute a mental illness under the Mental Health and Developmental Disabilities Code of 1979 (hereinafter referred to as MHDD Code) (Ill. Rev. Stat. 1979, ch. 91/2, par. 1 — 100 etseq.)? A petition was filed in the circuit court alleging that respondent Loren Marquardt was a person subject to involuntary admission under section 1 — 119 of the MHDD Code. After a bench trial, the court entered a finding that respondent was not subject to involuntary admission. The State appeals.

On August 22, 1980, Deloris Mochizuki filed a petition alleging that her son, respondent, was mentally ill and reasonably expected to harm himself in the near future. At a hearing the only witnesses were Mrs. Mochizuki and Dr. Carlos M. Deeb, M.D., the treating psychiatrist. Mrs. Mochizuki testified that her son had been hospitalized on three occasions during 1980 for drug overdoses, prior to his current stay at Madden Mental Health Center.

Respondent was at the time Dr. Deeb’s patient at Madden and had been for three weeks. Respondent had also been his patient during a previous stay at Madden. Respondent refused to talk to Dr. Deeb during his current hospitalization, except to say that he wanted methadone. However, respondent had talked to Dr. Deeb during his previous, voluntary hospitalization. Dr. Deeb thus formed an evaluation of respondent based on the following: personal observation, the progress notes written by staff on respondent’s chart, information gathered by a staff member who talked to respondent’s family, and the conversations with respondent during his previous hospitalization.

Dr. Deeb’s evaluation was that respondent could take care of himself, was not subject to mental depression, was not psychotic, but was a drug abuser. Respondent was addicted to methadone, a synthetic heroin substitute, and used a drug named Placidyl for its euphoriant effect. The combination of these drugs was harmful and could be lethal. The doctor predicted that there was a 100-percent probability that respondent would continue his pattern of drug abuse if released, and that it was probable he would give himself a lethal dose or cause serious harm to himself.

Finally, Dr. Deeb testified that drug abuse was recognized as a mental illness by the psychiatric profession. He based this opinion on the categorization of drug abuse in the Diagnostic and Statistical Manual of Mental Disorders (both 2d ed. 1968 and 3d ed. 1980), published by the American Psychiatric Association (hereinafter DSM-II and DSM-III).

Respondent did not present any evidence. The trial court entered a finding that respondent was not a person subject to involuntary admission and should be discharged. The court found that, although respondent was clearly dangerous to himself in that he could take a lethal combination of drugs, the term “mental illness” in the MHDD Code was not intended to include those persons who use drugs.

I

Initially, we deal with respondent’s contention that this appeal is moot because even if this court finds that he was subject to involuntary admission at the time of the circuit court hearing on August 29, 1980, it would not necessarily follow that he is currently subject to involuntary admission. Section 1 — 119(1) of the MHDD Code refers to a person “e * ° who because of his illness is reasonably expected to inflict serious physical harm upon himself or another in the near future-, * * (Emphasis added.) (Ill. Rev. Stat. 1979, ch. 91%, par. 1 — 119.) Even if this court reversed the circuit court, it would be necessary to remand for a determination of respondent’s present condition.

Under the traditional mootness principle, this appeal would be moot. The courts, however, have traditionally applied an exception to the mootness doctrine in mental health cases. (In re Garcia (1978), 59 Ill. App. 3d 500, 502 — 03, 375 N.E.2d 557.) The mootness doctrine should not be applied where it would prevent issues capable of repetition from ever being susceptible to appellate review. If respondent’s position prevailed, appellate review could never be obtained in mental health commitment cases. Thus, there would be no development of a body of case law to provide guidance to the circuit court. Appellate review will aid in considering the MHDD Code. See also In re Phillips (1978), 62 Ill. App. 3d 408, 410-11, 379 N.E.2d 97; In re Fields (1978), 60 Ill. App. 3d 869, 871-72, 377 N.E.2d 301.

II

To sustain its burden in this involuntary admission proceeding, the State must show that respondent is mentally ill, and that he is reasonably expected to inflict serious physical harm upon himself or another in the near future. (Ill. Rev. Stat. 1979, ch. 91%, par. 1 — 119(1).) The standard of proof is clear and convincing evidence. (People v. Sansone (1974), 18 Ill. App. 3d 315, 325-26, 309 N.E.2d 733, now codified at Ill. Rev. Stat. 1979, ch. 91%, par. 3 — 808.) The State contends that respondent’s drug abuse constitutes a “mental illness” within section 1 — 119, and that he could be reasonably expected to harm himself in the near future. The trial court, although finding respondent dangerous to himself, held that voluntary drug abuse is not a mental illness.

The issue of whether drug abuse constitutes a “mental illness” under section 1 — 119 of the MHDD Code appears to be a question of first impression. The term “mental illness,” which replaces the term “mental disorder” in the old Code, is deliberately not defined in the new Code. The drafters stated:

“That term is left undefined as in prior codes, largely because any definition which could be made legally explicit would necessarily be so broad or circular as to preclude accurate application. By not providing an explicit statutory definition, a common-law definition fashioned by the courts on a case-by-case basis is deemed to be preferable as it has been in the past.” Governor’s Commission For Revision of the Mental Health Code of Illinois, Report 14 (1976).

The State cites cases in which drug or alcohol abuse was a contributing factor to a finding of involuntary admission. The State concedes, however, that in each of these cases, an existing condition of mental illness was aggravated by drug or alcohol abuse. In In re Evans (1980), 86 Ill. App. 3d 263, 408 N.E.2d 33, a finding of involuntary admission was sustained when respondent had been diagnosed as a schizophrenic and also mixed alcohol and phenobarbital. Similar results were reached in People v. Gerich (1974), 22 Ill. App. 3d 575, 317 N.E.2d 724, and In re Spain (1977), 54 Ill. App. 3d 26, 369 N.E.2d 305. No cases have been found in which a finding of involuntary admission was based solely on drug abuse.

The State places heavy reliance on the classification of drug dependence as a mental illness by DSM-II and DSM-III. Dr. Deeb testified at the hearing to this classification, and the State relies heavily on the classification in its briefs. Dr. Deeb also testified at the hearing that respondent was not psychotic.

Reliance on DSM-II and DSM-III misapprehends the nature of these publications. The various editions of DSM are simply outlines of diagnostic categories. Their purpose is to attempt to achieve a uniform nomenclature in psychiatry to facilitate statistic-gathering and information exchange. In addition to drug abuse, the following are classified as mental disorders in various editions of DSM: sexual deviations, including homosexuality, fetishism, pedophilia, voyeurism, sadism; alcoholism, including episodic excessive drinking and habitual excessive drinking; speech disturbance; sleep disorders; social maladjustments, including marital maladjustment, social maladjustment and occupational maladjustment; transient situational disturbance, including adjustment reaction of infancy, adjustment reaction of childhood, adjustment reaction of adolescence, adjustment reaction of adult life and adjustment reaction of late life.

The State has failed to sustain its burden of proof in this case. That burden was described in People v. Sansone (1974), 18 Ill. App. 3d 315, 326: (1) the facts upon which the medical opinion (of mental illness) is based must be established by clear and convincing evidence; and (2) the medical opinion, itself, must be clear and convincing.

The medical evidence in this case is insufficient. The only evidence that drug abuse is a mental illness is the classification of DSM-II and DSM-III and Dr. Deeb’s brief statement of his opinion that drug abuse is recognized as a mental illness by the psychiatric profession. Dr. Deeb’s opinion appears to be based on the inclusion of drug abuse in the various editions of DSM. Considering the other conditions that are classified as mental disorders by DSM, this evidence is patently insufficient. Respondent’s attorney characterized the issue as an epistemological problem, and that respondent’s problem is physiological, not psychological. This court is being called upon to make a judgment as to whether drug dependence constitutes a mental illness on the basis of a record that barely addresses the medical issue. “Clear and convincing evidence” is a constitutional standard in involuntary commitment cases (Addington v. Texas (1979), 441 U.S. 418, 431-33, 60 L. Ed. 2d 323, 334-35, 99 S. Ct. 1804, 1812-13; In re Stephenson (1977), 67 Ill. 2d 544, 556, 367 N.E.2d 1273), and that burden was not met in the instant case.

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

Affirmed.

HARTMAN, P. J., and STAMOS, J., concur.

       Section 1 — 119 reads:
      “ ‘Person subject to involuntary admission’ or ‘subject to involuntary admission’ means:
      (1) A person who is mentally ill and who because of his illness is reasonably expected to inflict serious physical harm upon himself or another in the near future; or
      (2) A person who is mentally ill and who because of his illness is unable to provide for his basic physical needs so as to guard himself from serious harm. 0 * ®” Ill. Rev. Stat. 1979, ch. 911s, par. 1 — 119.


author: Mr. PRESIDING JUSTICE SEIDENFELD

text:
    HINSDALE FEDERAL SAVINGS & LOAN ASSOCIATION, Plaintiff-Appellee, v. GARY-WHEATON BANK, Trustee, et al., Defendants-Appellees.—(GEORGE R. MYERS et al., Defendants-Appellants.)
    Second District
    No. 80-840
    Opinion filed October 2,1981.

      Leigh R. Pietsch, of Nelson, Jerz, Pietsch, O’Leary, Walters and Schroeder, of Wheaton, for appellants.
    Dominic J. Mancini, of Palmer, Blackman, Mancini and Riebandt, of Hinsdale, for appellees.
   Mr. PRESIDING JUSTICE SEIDENFELD

delivered the opinion of the court:

The relationship between a party who claims an equitable title to real estate under a contract with a builder for the purchase of a home to be erected on the builder’s lot, and the lending institution which seeks to foreclose an interim construction loan made to the builder, creates the issues in this appeal.

George M. Myers and Rosemarie E. Myers, his wife (Vendees), entered into a contract on January 26, 1976, with Warner-Dutzi, Inc. (Vendor), for the purchase of a lot on which the Vendor was to construct a dwelling for the total sum of $46,100. The sum of $2,000 was deposited as earnest money, and the contract further provided that construction was to proceed after the Vendees had received a commitment for financing and was to be completed and closed on May 28, 1976. The Vendees received a commitment for a mortgage loan from Hinsdale Federal Savings & Loan Association (Lender) in March of 1976, and signed the note and the mortgage, which the Lender recorded. The home was under roof by October of 1976 at which time the Vendor applied for a loan from the Lender to complete construction. Vendor executed mortgage documents on November 3, 1976, which were recorded on November 5. Vendees did not join in this mortgage nor were they asked to subordinate their purchase contract. Although that contract was not recorded a copy was on file with the Lender. The Lender claims that it subsequently disbursed $33,315.52 under the construction mortgage to the Vendor and subcontractors.

The Vendees on September 14, 1978, being dissatisfied with the progress of the construction, sued the Vendor to specifically enforce their initial contract of purchase and construction. The Lender was not named as a party defendant in that suit. An order was entered on April 19, 1978, which reflected a settlement between defendants and the Vendor under which the Vendor agreed to complete construction on or before July 1, 1978, and the Vendees agreed to pay the balance of the purchase price. On September 14, 1978, a second agreed order was entered in the circuit court of Du Page County which provided the Vendor an additional 30 days in which to complete construction and further provided that if construction was not completed by that date the Vendees could take possession and complete construction, deducting any reasonable costs from the balance of the purchase price. The Vendees subsequently took possession of the premises and claimed to have expended between $22,000 and $24,000 in the completion of the home.

By letter dated June 30, 1977, the Lender advised Vendees that because they had failed to close the loan in accordance with the commitment “we will have to cancel” the commitment. It further appears that the Lender recorded a release of the mortgage on August 3, 1977, which the Vendees claim was without their knowledge or consent.

The Vendor defaulted on the construction loan, and the Lender instituted a suit for foreclosure on May 24,1979, naming as defendants all parties with a recorded interest and “Unknown Owners.” An order of default was entered against “Unknown Owners” on December 4, 1979. On December 19, 1979, a decree of foreclosure and sale was entered.

The Vendees, on January 19,1980, filed a motion to vacate the decree of foreclosure and sale, asserting their interest under the January 26,1976, contract with the Vendor. The motion was granted. The Vendees’ further motion to dismiss the complaint for foreclosure, however, was denied. Vendees subsequently answered the complaint and advanced as affirmative defenses, that they were entitled to the equity of redemption and further that only $15,000 of the construction loan was used on the subject property. They claimed to have no knowledge of the construction loan until learning of the foreclosure action. The trial court struck both defenses and entered summary judgment for the Lender from which Vendees appeal.

The principal issues are whether the Vendees have shown an ownership interest in the property under the doctrine of equitable conversion; and, if so, whether their equitable interest is superior to the Lender’s subsequent mortgage.

We first conclude that the Vendees are the equitable owners of the subject property. Generally, a contract buyer becomes the equitable owner of the property upon execution of the installment contract. (Rosewood Corp. v. Fisher (1970), 46 Ill. 2d 249, 257.) The doctrine will not be applied if the contract of sale is not enforceable because a condition precedent, the occurrence of which is not governed by either party to the contract, is unfulfilled (Dodson v. Nink (1979), 72 Ill. App. 3d 59, 65); or if the party who claims the benefit of the doctrine is in breach of contract through his own failure to perform. Illinois Fair Plan Association v. Astirs, Inc. (1980), 89 Ill. App. 3d 422, 425.

The purchase and construction contract placed two initial conditions upon the Vendees. They were initially to tender an earnest money deposit of $2,000 and provide proof of financing prior to any performance on the part of the Vendor. Each of these conditions was fulfilled. It was then encumbent upon the Vendor to complete construction of the premises by May 28,1976. Although the Vendees pursued their remedies for breach of contract, the result was a settlement in which there was a written modification extending the contract for 30 days from September 14,1978. The construction was not completed as agreed by the extended date. Thereupon the Vendees took possession and completed construction pursuant to the order of the Du Page County court.

A party who has fulfilled all outstanding conditions is entitled to the remedy of equitable conversion. (See Lombard v. Chicago Sinai Congregation (1872), 64 Ill. 477, 486.) Thus, the Vendees were, in equity, the owners of the subject property prior to the execution of the mortgage being foreclosed.

We further conclude that, under the particular circumstances of this case, the Vendees’ equitable interest under their unrecorded contract was superior to the interest of the Lender evidenced by the mortgage subsequently recorded.

As previously noted, the equitable interest of the Vendees accrued prior to execution of the construction loan. The Lender, at the time of the execution of that loan, admittedly had actual knowledge of the unrecorded purchase and construction contract. The Lender explains that it did not ask the Vendees to subordinate their interest to that of the Lender because it concluded that the purchase and construction agreement had come to an end upon the Vendor’s failure to complete the dwelling as specified in the contract. However, the conclusion was unwarranted and offers no support to the Lender’s argument.

The conclusion that the Lender is charged with knowledge of the prior equitable conversion and must take subject to it does not completely dispose of the issues. The Vendees argue that the Lender merely stands in the position of the Vendor and is only entitled to the balance of the purchase price as that is all the Vendor could have received. We do not agree. The fact that the mortgagee must take into account, under our disposition, the priority of the interests of the Vendees as equitable owners of the property does not affect the validity of the mortgage. The mortgage remains a lien on the property which may be foreclosed. But we also cannot agree with the argument of the Lender that, at best, the Vendees have only a right to redeem by paying off the Lender’s mortgage.

We have not encountered a comparable case among the Illinois authorities but find some instruction in authorities from other jurisdictions.

In Tucson Federal Savings & Loan Association v. Sundell (1970), 106 Ariz. 137, 472 P.2d 6, the Supreme Court of Arizona addressed a somewhat similar situation. There, the vendee entered into a contract to purchase a lot with a home to be built by the vendor. The contract was contingent upon the vendee obtaining an F.H.A. loan, which he did. The vendor was a large developer with a relationship with the bank that permitted him to make out his own loan and mortgage forms, which he did. The bank and the vendor knew the loans were only to be extended to lots that had been sold. The lender loaned $11,400 on the property. Thereafter the vendor became insolvent and defaulted on the lender’s mortgage. The evidence showed that the lender had seen the contract for purchase before it loaned the money to the developer. The court held that the vendee had an equitable interest in the land and that the lender was not a bona fide purchaser since it had knowledge of this. To the extent that payments were made by the vendee before the vendee had actual knowledge of the mortgage interest of the lender, the vendee was held to have a lien priority on the proceeds of the land which was being sold.

In Fikes v. First Federal Savings & Loan Association (Alas. 1975), 533 P.2d 251, a contractor was contacted by a prospective purchaser in order that the builder might obtain a lot and erect a duplex home. The vendee signed a contract for the lot with the vendor through the builder’s efforts, and the builder paid the earnest money out of a fund paid to him by the vendee. The vendee and the builder then went to the lender to obtain a construction loan, the application listing the vendee as mortgagor. The builder obtained a development loan for this and other property. The builder took title to the subject property. The lender paid out money under the loan, which the builder diverted to other property. The money was fully paid out, but the duplex was not finished. The lender instituted foreclosure proceedings. The vendee sued to declare his interest prior to the lender and to limit the lender to the amount actually spent on the subject property. The court held that the vendee obtained an equitable interest in the lot when the earnest money agreement was signed with the vendor. The earnest money agreement was not recorded, but the court found that the lender had knowledge since the record showed that both the vendee and the builder participated in the loan procedures; and, thus, that the lender’s interest was subordinate to that of the vendee. The court further concluded that the lender permitted misapplication of loan proceeds and therefore could only recover the amount properly disbursed. 533 P.2d 251, 258-61. See also Wayne Building & Loan Co. v. Yarborough (1967), 11 Ohio St. 2d 195, 228 N.E.2d 841.

In Wayne, the Ohio Supreme Court held that the vendee acquired an equitable interest under its purchase contract which was prior to the interest of a lender charged with actual knowledge. (11 Ohio St. 2d 195, 202-03, 228 N.E.2d 841, 847.) It further concluded that the vendee was entitled to recover, as against the mortgagee, payments made by him prior to his knowledge of the construction loan. 11 Ohio St. 2d 195, 204, 228 N.E.2d 841, 848.

In this case, the Vendees sought to show payments to complete the construction in the amount of $22,000-$24,000. It is not entirely clear, however, as to when the Vendees first had actual knowledge of the construction loan. We conclude that the Vendees are entitled to an equitable lien on the property for all money they have expended toward the fulfillment of the contract without actual knowledge of Hinsdale Federal’s mortgage.

The briefs of the parties relate only to the propriety of the order of September 23,1980, striking the affirmative defenses and granting a summary judgment for foreclosure. The record, however, includes further proceedings resulting in a foreclosure suit. The lender acquired title, by its bid of $48,094.31, the Vendees’ motion for a stay having been previously denied.

We therefore reverse that portion of the judgment of the trial court which struck the Myers’ first affirmative defense and remand the cause for further proceedings. On remand, the trial court is directed to hear evidence and determine how much the Myers expended on the contract and for improvements prior to actual knowledge of the Hinsdale Federal’s mortgage. The amount so determined shall be an equitable lien prior to the Lender’s interest in the proceeds of the foreclosure sale.

The request of the Vendees for specific performance is denied. We find no authority for that position. The Lenders do not stand in the position of the Vendor. Their mortgage is a valid lien, although not prior to the proven equitable lien of the Vendees.

The portion of the judgment of the trial court which struck the second affirmative defense (improper allocation of Lender’s funds) is moot. As the Vendees have a prior interest in the foreclosure sale proceeds, they cannot be injured by a failure, if any, to reduce the subsequent lien on the proceeds.

Reversed and remanded with directions.

LINDBERG and UNVERZAGT, JJ., concur.


text:
    MARIAN COOK et al., Plaintiffs-Appellants, v. UNIVERSITY PLAZA et al., Defendants-Appellees.
    Second District
    No. 81-111
    Opinion filed October 6,1981.
    Charles L. Fierz, of Sycamore, for appellants.
    Russell E. Burns and Robert P. Carlson, both of Burns and Carlson, of De Kalb, for appellees.
   Mr. PRESIDING JUSTICE SEIDENFELD

delivered the opinion of the court:

In this appeal we consider the applicability of the statute providing payment of interest on security deposits to a tenant (Ill. Rev. Stat. 1979, ch. 74, pars. 91-93), to particular contracts. The parties to the agreements are the plaintiffs, the residents of University Plaza as a class, who entered into residence hall contracts with University Plaza and its general partners, defendants, a privately owned university dormitory which serves students of Northern Illinois University in DeKalb. Plaintiffs appeal from the dismissal of their class-action suit. The defendants’ motion was sustained on the basis that the statute is inapplicable because no tenant-landlord relationship has been created by the contracts and thus that no cause of action was stated.

The individual contracts with the students are entitled “Residence Hall Contract Agreement.” The introductory paragraph states that the agreement governs the use of the University Plaza facilities and services by the resident. In clause I the dormitory agrees to furnish accommodations and services, including basic furniture, carpeting and draperies, local telephone service, cleaning service, social and recreational facilities, and parking facilities. Clause III requires a $50 security deposit and spells out the rights that the resident has in that deposit. University Plaza reserves the right to cancel the contract for default, although the resident has no right to cancel once it has accepted the agreement. If the resident has not vacated the premises at the end of seven days following a written notice of intent to cancel the contract, University Plaza may take possession of the premises and remove the resident. University Plaza provides meal service for the residents. It also reserves the right to make assignments of space, to authorize or deny room and roommate changes and to require the resident to move from one room to another. There is also a provision that the dormitory is closed and meals are not served during Thanksgiving and spring recess as well as during semester breaks; and that no one is allowed to remain in the residence hall during these stated periods or beyond the established academic year closing date.

Clause IV states:

“Notwithstanding anything to the contrary which may herein be contained, expressly, impliedly or otherwise, it is specifically understood and agreed by and between the parties hereto, that it is not the intention of the parties hereto to create a landlord-tenant relationship, and that the intention hereof is strictly contractual in nature; for bed and board, ancillary service, the use of certain recreational facilities, and participation in student social programs promoted at University Plaza, all of which are for the most part in concert with others. The resident may not assign any rights hereunder and may not sublet the room assigned.”

Whether a contract is a lease or a license is not to be determined from the language that the parties choose to call it but from the legal effect of its provisions. Illinois Central R.R. Co. v. Michigan Central R.R. Co. (1958), 18 Ill. App. 2d 462, 473-74. See also Holladay v. Chicago Arc Light & Power Co. (1894), 55 Ill. App. 463, 466.

In Holladay, a contract, referred throughout as a lease of the right to run electric wires under the sidewalks of certain buildings, was held not to be a lease but a mere license. In reaching that conclusion, the court reasoned that an instrument which merely gives to another the right to “use premises for a specific purpose, the owner of the premises retaining the possession and control of the premises, confers no interest in the land and is not a lease, but a mere license.” (55 Ill. App. 463, 466-67.) In Illinois Central R.R. Co., the court held that an agreement between two railroads to share their track and railroad station rights was a license, not a lease, and concluded that where the railroad shared the use of the tracks and terminal areas there was no transfer of exclusive possession sufficient to create a lease. It noted that “a leasehold requires that the lessee’s possession be more than merely coextensive with the lessor; it must be exclusive against the world and the lessor.” (18 Ill. App. 2d 462, 482.) However, “there may be a reservation of a right to possession by the landlord for purposes not inconsistent with the privileges granted to the tenant.” 18 Ill. App. 2d 462, 477. See also Urban Investment & Development Co. v. Rothschild & Co. (1975), 25 Ill. App. 3d 546, 550.

In In re Application of Rosewell (1979), 69 Ill. App. 3d 996, the court considered whether agreements between the City of Chicago and certain individuals under which the individuals were permitted to operate city owned parking garages or lots constituted leases or licenses. The court held that the essence of a lease was transfer of possession (69 Ill. App. 3d 996, 1000-01), while a license is “an agreement which merely entitles one party to use property subject to the management and control of the other party” (69 Ill. App. 3d 996, 1001). Thus, it concluded that since the city retained the right to control how the parking lots were operated the agreement constituted a license, even though the city surrendered exclusive possession of the lots to the parking lot operators. In People v. Chicago Metro Car Rentals, Inc. (1979), 72 Ill. App. 3d 626, the issue was whether an agreement between the City of Chicago and a car rental agency, which permitted the agency to operate a rent-a-car business at O’Hare airport, constituted a lease or a license. In finding that the agreement constituted a lease the court noted that the document was written using traditional terms; that it contained all of the essential requirements of a lease, including a definite agreement as to the extent and bounds of the leased property; and that the agreement granted Metro exclusive possession of a designated service area and designated counter space amounting to a particular number of square feet, legally described and diagramed in the agreement. 72 Ill. App. 3d 626, 629.

While the agreement before us contains certain aspects normally associated with leases, a definite and agreed term and a definite and agreed price of rental and manner of payment (see Metro, at 629), we conclude that it lacks the essential requirement of being a definite agreement as to the extent and bounds of the property to be used. The fact that the students may be moved during the term from room to room at the will of the contracting party is the principal feature of the agreement which we find persuasive in our determination that the parties did not intend to enter into a landlord and tenant relationship since the agreement failed to pass a possessory interest in specific property.

The question remains as to whether the legislature intended the statute on security deposits to apply to dormitories which provide bed and board to students. Section 3 of the statute excludes only public housing units from the application of the act. (Ill. Rev. Stat. 1979, ch. 74, par. 93.) However, parties are only covered by the statute if the agreement between the residents and the dormitory can be considered a lease. We find nothing in either the legislative history of the act or in its terms which would support the view that the legislature intended to include security deposits paid by students in dormitories in which they reside without reference to whether their agreement is a license or a lease.

We would note that there appears to be no public policy which would prevent the legislature from enacting a statute which would require that interest be paid on deposits made by persons in the class of the plaintiffs or others similarly situated. However, we conclude that the legislature has not done so and that the remedy in these circumstances is within the legislative domain.

The judgment is therefore affirmed.

Affirmed.

REINHARD and HOPE, JJ., concur.


author: Mr. JUSTICE STOUDER Mr. JUSTICE HEIPLE,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. GREG P. LEVENDOSKI, Defendant-Appellee.
    Third District
    No. 80-553
    Opinion filed September 30,1981.
    Rehearing denied October 30,1981.

      HEIPLE, J., concurring and dissenting.
    Edward F. Petka, State’s Attorney, of Joliet (John X. Breslin and Rita F. Kennedy, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
    Robert Agostinelli and Michael Filipovic, both of State Appellate Defender’s Office, of Ottawa, for appellee.
   Mr. JUSTICE STOUDER

delivered the opinion of the court:

This is an appeal by the State from a judgment of the circuit court of Will County suppressing confessions of the defendant, Greg Levendoski. On June 4, 1980, the defendant was indicted for armed robbery. On September 8, 1980, the defendant moved to suppress his confession. Following a hearing, the defendant’s motion was granted and the State appeals.

At the hearing three witnesses testified for the State. James Montesanto, a detective employed by the Du Page County sheriff, was the State’s first witness. Montesanto testified that on the morning of May 14, 1980, a Du Page County jailer came to the detective bureau and said that an inmate wished to talk to a detective. Montesanto went to the prisoner section of the jail complex and the defendant was brought to him. Montesanto asked what the defendant wished to talk about and the defendant said an armed robbery. Montesanto asked for more details, and the defendant replied that it took place at the Kentucky Fried Chicken in Bolingbrook. Montesanto determined that it was outside his jurisdiction and told the defendant that he would contact the Bolingbrook police department. The defendant agreed that Montesanto should do so. When Montesanto asked the defendant why he was disclosing the information, the defendant replied that he had a drug problem that he wanted to straighten out and that he wanted to get back in the army. Following the conversation, the defendant was returned to his cell. Montesanto denied that he had any conversation with the defendant regarding a “deal.” The defendant returned to his cell and Montesanto called the Bolingbrook police department and requested the two officers for whom the defendant had asked.

One of the two officers was Detective Wilkerson, who was the second witness for the State. Wilkerson testified as follows. On May 14, he and Detective Ranum went to the Du Page County jail. Prior to speaking with the defendant, they talked with Montesanto. Montesanto told them he had spoken with the defendant earlier and that, in his opinion, the defendant wanted to make a deal. Montesanto also told them that he had not discussed any deals with the defendant nor made any promises to him.

Wilkerson, Ranum and Montesanto then went to see the defendant. The defendant was taken to a small interview room, and Montesanto left. Wilkerson told the defendant that he understood the defendant wanted to talk to them, and the defendant replied that he did. Wilkerson then read the defendant his Miranda rights, and the defendant said that he understood these rights. The defendant then was asked if he had been promised anything prior to talking to Wilkerson and the defendant stated he had not. The defendant’s replies to these questions were written on a form, and the defendant initialed his responses on the form.

After completing the form, Wilkerson told the defendant that he understood that the defendant wanted to discuss the armed robbery. The defendant replied that he did and proceeded to state the part he had played in it. The defendant also discussed his drug problem with Wilkerson. He told Wilkerson he was not addicted but was afraid he might become addicted. The defendant asked what was going to happen to him, and Wilkerson informed him that armed robbery was a nonprobationable, Class X felony with a minimum sentence of six years and a maximum sentence of 30 years. The defendant stated he might be able to get drug treatment in prison, and Wilkerson told him the adult program did not have the same programs available as the juvenile system.

Wilkerson then said he wished to return to the facts of the robbery, and the defendant consented to let Wilkerson tape record his statement about the armed robbery. The tape was admitted into evidence and was played. On the tape, the defendant stated that he understood his Miranda warnings, repeated the story of the armed robbery, and denied that anyone had promised him anything. The defendant also stated his confession was voluntary, without coercion, threats or promises.

Detective Ranum of the Bolingbrook Police Department was the State’s final witness. He testified that on May 14, 1980, he accompanied Wilkerson to interview the defendant. His testimony was substantially the same as Wilkerson’s.

After Ranum’s testimony, defense counsel orally expanded his motion to suppress to include the defendant’s statement to Montesanto on the basis that the defendant was not advised of his Miranda warnings prior to talking to Montesanto. The defendant then testified on his own behalf. He testified that on May 14,1980, he was incarcerated at the Du Page County jail. He told the jailer he would like to turn State’s evidence on an armed robbery. The jailer took him to see Montesanto, and the defendant told Montesanto he would like to turn State’s evidence in the armed robbery. The defendant testified he told Montesanto he would like immunity or probation, and Montesanto told him it was not his jurisdiction but that he would contact the Bolingbrook Police Department.

Approximately 45 minutes later Wilkerson and Ranum came to the jail. The defendant testified that he was taken to an interrogation room where Wilkerson agreed to try to work a deal out for the defendant. Defendant testified that he signed the questionnaire indicating no promises had been made because Wilkerson told him it would be best to do so. He further testified he was never told that armed robbery was a Class X felony with a minimum mandatory sentence of six years. He thought he would get probation and drug treatment.

Five days later the defendant’s custody was transferred to the Bolingbrook Police Department. The next day he was brought to the Will County courthouse by Wilkerson. When he appeared in court, he told the judge he wanted to plead guilty and get it over with, meaning get probation and drug treatment. The judge to whom the case was referred refused to accept the defendant’s plea without counsel. Thereafter, a suppression motion was filed and heard by a different judge.

After the testimony of another witness, the defense rested. The State had two rebuttal witnesses. Following lengthy oral arguments by counsel, the judge held that both the confession to Montesanto and the confession to Wilkerson should be suppressed.

On appeal, the State raises two issues: (1) whether or not the judge erred in suppressing the defendant’s statement to Montesanto; and (2) whether or not the judge erred in suppressing the defendant’s confession to Wilkerson. We affirm in part and reverse in part.

The first issue with which we deal is whether or not the defendant’s statement to Montesanto should have been suppressed. In granting the defendant’s motion to suppress, the trial judge ruled that the defendant should have been advised of his Miranda rights. The trial judge held that it was irrelevant that the defendant was in custody on unrelated charges since it was clear that he was in custody at the time of the interview.

The State concedes that the defendant was in custody. However, they contend that the Miranda rights need not have been given because Montesanto did not initiate a custodial interrogation of the defendant. The State claims that the defendant’s statement was voluntary and that under such circumstances the defendant need not be informed of his Miranda rights.

While it is true that Miranda does not require the police to interrupt a voluntary statement, we do not believe the instant case falls in that category. Montesanto knew the defendant wanted to talk to him and proceeded to ask questions which elicited information. Under the circumstances, Montesanto could reasonably have expected the defendant to implicate himself. Miranda applies “not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.” (Rhode Island v. Innis (1980), 446 U.S. 291, 301, 64 L. Ed. 2d 297, 307-08, 100 S. Ct. 1682, 1689-91.) Since there was express questioning which the officer could have reasonably expected the defendant to incriminate himself in answering, the Miranda rights should have been read. We therefore affirm the portion of the trial court’s judgment suppressing the statement.

The second issue is whether the defendant’s confession to Wilkerson should have been suppressed. The first question that must be resolved is whether the discussion between the defendant and Wilkerson was a direct product of the conversation between the defendant and Montesanto and thus must be suppressed as the “fruit of the poisonous tree.” The defendant contends that the later statements were the direct consequence of the statement to Montesanto and must therefore be suppressed. We disagree.

It is well established that a prior inadmissible confession does not, in and of itself, render any later confession inadmissible. We believe that in the instant case, the defendant’s confession to Wilkerson was not a direct consequence of his talk with Montesanto. It is clear that the defendant wished to confess. He tried to confess to Montesanto, but Montesanto told him to talk to the Bolingbrook police. The defendant specifically requested that he be able to talk to Wilkerson and Ranum, police officers with whom he had dealt before. The defendant thus clearly was willing to confess to Wilkerson and this confession had nothing to do with his statements to Montesanto.

The defendant’s reliance on People v. Raddatz (1968), 91 Ill. App. 2d 425, 235 N.E.2d 353, is misplaced. In Raddatz, the defendant was interrogated and as a result of this interrogation, finally confessed. This occurred without the defendant having been given his Miranda rights. The defendant was then allowed to call his lawyer, who told him not to talk. The defendant was transferred to the State’s Attorney’s office, where he was read his Miranda rights. He then repeated his confession. The confession was suppressed as fruit of the prior confession. On appeal, the holding was affirmed. The court believed the defendant might have confessed the second time because he believed all was lost as a result of the first confession. The situation in Raddatz is markedly different from the instant case. In the instant case, the confession resulted from the defendant volunteering the information. He was clearly willing to repeat the confession to Wilkerson independent of his comments to Montesanto. Therefore, the confession to Wilkerson was not fruit of the poisonous tree and need not be suppressed on that basis.

The issue thus becomes whether or not the trial judge erred in finding that the statement was not voluntary because the defendant had been tricked into giving the statement by a false promise of leniency. We believe the trial judge’s finding was contrary to the manifest weight of the evidence and accordingly reverse. The trial judge’s opinion specifically stated that he did not believe the defendant’s testimony except where it was corroborated by the police. The judge found that based on the detectives’ testimony, there had been a promise of leniency which lured the defendant into confessing.

We believe the evidence established that there was no promise of leniency made or implied. Wilkerson testified that he had made no promises or deals with the defendant. The defendant signed a form attesting to the fact that no promise or deal had been made. On that tape the defendant stated that his statement was voluntary and that no deals or promises had been made.

The only testimony to rebut this evidence was the defendant’s statements that he had received specific promises of probation and drug treatment from Wilkerson. When asked why he signed the form saying he had received no promises he said that Wilkerson had told him it would go better for him if he signed. However, the trial judge specifically found the defendant’s testimony unreliable and stated his decision was based only on the detectives’ testimony.

The detectives’ testimony is internally consistent in denying the making of any deals or promises. It is also corroborated by the defendant’s taped statements denying any promises and his signing of the form saying no promises had been made. The defendant has had prior dealings with the police and is acquainted with police procedure. There is no evidence to suggest that the procedure of denying promises had been made when they had in fact been made was ever employed before. Due to his familiarity with police procedure, the defendant surely would have been suspicious if told to do so in the instant case. We therefore believe no deals were made and the defendant’s statements were voluntary. Accordingly, we reverse the trial court’s judgment with respect to the confessions made to Wilkerson.

For the above mentioned reasons, the judgment of the circuit court of Will County is affirmed in part and reversed in part.

Affirmed in part and reversed in part.

BARRY, J., concurs.

Mr. JUSTICE HEIPLE,

concurring and dissenting:

I agree that Levendoski’s confession should not have been suppressed. I would also reverse the trial court’s order which suppressed the statement defendant made to Detective Montesanto.

My disagreement stems from the majority’s interpretation of what constitutes “interrogation” as announced in Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602. My colleagues conclude the police interrogated Levendoski without affording him the procedural safeguards Miranda warnings are designed to promote. I do not think Levendoski was interrogated. Therefore, I do not believe a rendition of Miranda warnings was required.

Levendoski sought out a jailer and told him he wanted to talk to an officer. Detective Montesanto was called to the cellblock area. Defendant said he wanted to talk about an armed robbery. The police officer then asked what armed robbery, and defendant indicated a holdup of a fast-food restaurant. Montesanto said he needed more details. Levendoski confessed, indicating his participation in the offense and implicating two others. The conversation lasted 10 minutes.

Defendant’s decision to speak with police is the very act he now claims violated his right to silence. He ignores the fact that he initiated that conversation. Custodial interrogation means “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” (Miranda v. Arizona (1966), 384 U.S. 436, 444, 16 L. Ed. 2d 694, 706, 86 S. Ct. 1602, 1612.) The questioning complained of was the product of defendant’s own voluntary act. Motivated for whatever reason, it was independent of any police conduct to elicit such a statement. Defendant was not subjugated to questioning which exploited the custodial setting. No psychological ploys (accord, Brewer v. Williams (1977), 430 U.S. 487, 51 L. Ed. 2d 424, 97 S. Ct. 1232) were used by the police to encroach upon Levendoski’s right to remain silent, or compel him to talk. Nor in the record is any reference that Officer Montesanto, by talking with Levendoski, did so with the design to make him admit his complicity in any armed robbery. (Rhode Island v. Innis (1980), 446 U.S. 291, 303 n.9, 64 L. Ed. 2d 297, 305-06 n.9, 100 S. Ct. 1682, 1690 n.9.) Clearly, before the conversation occurred, Montesanto had no indication whatsoever that Levendoski was involved in any armed robbery.

Every time the police talk to a prison inmate does not mean each such dialogue must be prefaced by Miranda warnings. Many conversations require it. This one does not. As Miranda notes:

“Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence. The fundamental import of the privilege while an individual is in custody is not whether he is allowed to talk with the police without benefit of warnings and counsel but whether he can be interrogated.” 384 U.S. 436, 478,16 L. Ed. 2d 694, 726, 86 S. Ct. 1602,1630.

Because I believe Levendoski was not interrogated, Miranda warnings were not required. Accordingly, I cannot concur with the affirmance which suppresses Levendoski’s statement to Detective Montesanto. As to that portion of the majority’s opinion, then, I respectfully dissent.