{ "id": 2475990, "name": "THE CITY OF NAPERVILLE, Plaintiff-Appellee, v. WILLIAM G. LERCH, Defendant-Appellant", "name_abbreviation": "City of Naperville v. Lerch", "decision_date": "1990-06-08", "docket_number": "Nos. 2\u201489\u20140539, 2\u201489\u20140840 cons.", "first_page": "578", "last_page": "584", "citations": [ { "type": "official", "cite": "198 Ill. App. 3d 578" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "64 Ill. 2d 434", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5429683 ], "pin_cites": [ { "page": "437" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/64/0434-01" ] }, { "cite": "175 Ill. App. 3d 725", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3553502 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/175/0725-01" ] }, { "cite": "150 Ill. App. 3d 283", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3501497 ], "year": 1988, "pin_cites": [ { "page": "286" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/150/0283-01" ] }, { "cite": "82 Ill. 2d 177", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5474664 ], "pin_cites": [ { "page": "180" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/82/0177-01" ] }, { "cite": "176 Ill. App. 3d 293", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3588045 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/176/0293-01" ] }, { "cite": "175 Ill. App. 3d 676", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3554041 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/ill-app-3d/175/0676-01" ] }, { "cite": "133 Ill. App. 3d 553", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3530121 ], "pin_cites": [ { "page": "559" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/133/0553-01" ] } ], "analysis": { "cardinality": 628, "char_count": 11267, "ocr_confidence": 0.754, "pagerank": { "raw": 8.230637948596371e-08, "percentile": 0.4773347789774616 }, "sha256": "e3824d37a9b17a837fe65efc46452ecb0ff9a397ad44a2efc076a7b7cd79eae9", "simhash": "1:970d01e3561f35f1", "word_count": 1910 }, "last_updated": "2023-07-14T19:49:28.995518+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE CITY OF NAPERVILLE, Plaintiff-Appellee, v. WILLIAM G. LERCH, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE McLAREN\ndelivered the opinion of the court:\nDefendant appeals from two orders of the circuit court of Du Page County imposing one year\u2019s court supervision on defendant and awarding attorney fees to the plaintiff. We affirm in part and reverse in part.\nDefendant, William G. Lerch, was charged with driving under the influence of alcohol (Naperville, Ill., Municipal Code, title 11, ch. 1, \u00a711\u20141\u20146, par. 1, subpar. 1.4) and driving with a blood-alcohol content of .10% or greater (Naperville, Ill., Municipal Code, title 11, ch. 1, \u00a711\u20141\u20146, par. 1, subpar. 1.3) on March 6, 1987. Plaintiff, City of Naperville, later moved for, and was granted, leave to amend the complaints to charge defendant with being in actual physical control of a motor vehicle while under the influence of alcohol and being in actual physical control of a motor vehicle while having a blood-alcohol content of .10% or more in his body, under the same code sections initially charged.\nAfter receiving a confirmation of statutory summary suspension, defendant petitioned the court for a hearing to rescind the suspension. Following a hearing, the court found in favor of defendant and rescinded the suspension because the arrest did not occur on a public highway. Defendant then moved to suppress evidence obtained in his allegedly illegal arrest. The record does not reveal the disposition of this motion. Defendant next filed a motion in limine to exclude the breath test result. This motion was granted in part and denied in part.\nA jury was selected on February 21, 1989. On February 22, after the jury was sworn in, defendant moved for a mistrial based on a venireman\u2019s statement that he believed that he knew defendant from their common membership in Alcoholics Anonymous. The court reserved ruling on this oral motion. Trial by jury followed, and defendant was found guilty of both charges on February 23. Defendant\u2019s motion for a mistrial was then denied.\nOn March 2, plaintiff filed a motion seeking attorney fees pursuant to title 1, chapter 4, section 1\u20144\u20141, paragraph 2, subparagraph 2.3 of the Municipal Code of the City of Naperville. On March 23, defendant filed various post-trial motions for a new trial and a motion for judgment notwithstanding the verdict. Defendant\u2019s motions were denied on April 28. On that same date, the court ordered defendant to serve a period of one year under court supervision. On May 30, defendant filed a notice of appeal from this order. After written and oral arguments, the court on August 21 granted the city\u2019s petition for attorney fees and ordered payment of $1,120 by defendant. On August 22, defendant filed a notice of appeal from this award of fees. These two appeals are now consolidated in the case before us.\nDefendant first contends that he was denied a fair and impartial jury. During voir dire, the following colloquy took place amongst the court, both counsel, and Mr. Kafka, a venireman in the last chair of the final panel of jurors selected:\n\u201cQ. [THE COURT]: Mr. Kafka?\nA. [MR. KAFKA]: Your Honor, may I speak?\nQ. What is it you wish to say, sir?\nA. I did not recognize Mr. Lerch by name but having studied his face, I believe I know him from a community organization.\nQ. Do you know that you do in fact know him?\nA. I believe it. We haven\u2019t had close contact in several years but previous to that we were in a community organization together I believe.\nTHE COURT: Any objection to either side if I excuse Mr. Kafka?\nMR. CUNEO: What organization was it?\nTHE COURT: I don\u2019t know.\nMR. THOMAS: Judge, I don\u2019t know that that\u2019s necessarily relevant.\nTHE COURT: All right. Let me ask you Mr. Kafka if this is only a casual acquaintanceship from several years ago and you are not sure until looking at the gentleman even closely that you know him, would it be fair to say that your knowledge will not interfere with your ability to decide this case?\nMR. KAFKA: I might be impartial. The group I am speaking of is Alcoholics Anonymous to which I have belonged for 12 years and I have been a sober member for the past seven years.\nTHE COURT: Again, it would be my feeling that maybe the gentleman should be excused. Any strong objection from either side?\nMR. THOMAS: None.\nTHE COURT: Mr. Cuneo?\nMR. CUNEO: No, Your Honor.\nTHE COURT: You will be excused.\u201d\nThe other three veniremen on that panel heard the proceedings and were sworn in as jurors. Defendant did not object to the proceedings or move for a mistrial at that point. The next day, however, defendant moved for a mistrial after the jury was sworn but before opening statements. The court reserved ruling on the motion until the verdict was returned, at which time the motion was denied.\nDefendant accepted the three jurors he now alleges were tainted by exposure to the venireman\u2019s statement. Failure to exercise a peremptory challenge or to challenge a juror for cause waives any objection to that juror. (People v. Davenport (1985), 133 Ill. App. 3d 553, 559.) Defendant\u2019s window of opportunity to challenge the three allegedly tainted jurors closed when defendant accepted them for service on the jury. He cannot later charge that they should have been dismissed. Any objection to their presence on the jury has been waived.\nDefendant next contends that he was denied a fair trial by a jury instruction given by the court. Plaintiff\u2019s tendered instruction No. 20, given by the court, stated:\n\u201c \u2018Actual physical control\u2019 does not require evidence that defendant drove or even attempted to drive.\u201d\nDefendant objected to this instruction, arguing that it was surplusage and that the content of the instruction was covered elsewhere. He did not, however, tender a different instruction.\nThe instruction in question here was a non-Illinois Pattern Jury Instruction and was based on the case of People v. Brown (1988), 175 Ill. App. 3d 676. Defendant, in his motion for a new trial and here on appeal, argues that the holding in Brown should be superseded by the reasoning in People v. Cummings (1988), 176 Ill. App. 3d 293. Whether this court chooses to adopt the reasoning set forth in Cummings, however, is irrelevant to this case. While defendant did object to the instruction given, he failed to tender an instruction which would have cured the alleged defect in the instruction given. Such a failure precludes a party from raising the issue on appeal. (People v. Tannenbaum (1980), 82 Ill. 2d 177, 180; 107 Ill. 2d R. 366 (b)(2)(i).) This issue is, therefore, waived.\nDefendant next contends that the court erred in admitting evidence of the results of defendant\u2019s breathalyzer test. Defendant maintains that he was coerced into submitting to the test when the arresting officer allegedly incorrectly informed him that his driving privileges would be suspended if he did not take the test. The trial court granted in part defendant\u2019s motion in limine, excluding evidence of the admonition given to defendant but allowing evidence of the test and its result.\nDefendant was admonished pursuant to section 11\u2014501.1(a) of the Illinois Vehicle Code (Ill. Rev. Stat. 1987, ch. 95\u00bd, par. 11-501.1(a)) (implied-consent statute) that a refusal to submit to testing to determine blood-alcohol content would result in suspension of his driver\u2019s license. However, defendant was arrested in a private parking lot; the implied-consent statute applies only to persons who drive or have physical control of motor vehicles upon the public highways. (Ill. Rev. Stat. 1987, ch. 95\u00bd, par. 11\u2014501.1(a); see also People v. Kissel (1986), 150 Ill. App. 3d 283, 286, overruled on other grounds sub nom. People v. Brown (1988), 175 Ill. App. 3d 725.) According to defendant, this improper admonition coerced him into submitting to the test and the involuntary nature of his submission should have precluded the admissibility of evidence of the test.\nDefendant has failed to cite a single case in Support of his position. The mere assertion that defendant\u2019s submission to the test was coerced is not an adequate argument. This issue is inadequately briefed and is considered waived.\nDefendant next contends that the court erred in awarding plaintiff attorney fees. Defendant raises six arguments as to why the award of fees was error, including: (1) the court has no power to assess attorney fees in the absence of statutory authority; (2) the issue of fees is preempted by the legislature; (3) the power to assess attorney fees as costs is not within the scope of home rule powers; (4) the ordinance under which the fees were awarded impermissibly interferes with the State\u2019s judicial system; (5) the ordinance is unconstitutionally vague; and (6) the ordinance has a chilling effect on the right to a jury trial. Because of our ruling, we need not address each of these arguments. We conclude that the award of attorney fees was error, and we reverse the order awarding fees.\nIn general, the absence of a statute or an agreement of the parties precludes the recovery of attorney fees or the costs of litigation. (Hamer v. Kirk (1976), 64 Ill. 2d 434, 437.) In the case before us, there is obviously no agreement between the parties to assess fees. Neither is there a statute which would authorize the award of fees. However, plaintiff argues that its ordinance is sufficient authority to award fees. According to plaintiff, an ordinance is synonymous with a statute, in meaning and effect, because both are legislative acts. We find this argument unpersuasive. The terms \u201cstatute\u201d and \u201cordinance\u201d are defined in several places throughout the laws of this State. In the Municipal Code of 1961, \u201cordinance\u201d is defined as \u201can ordinance adopted and approved by the corporate authorities of a municipality.\u201d (Ill. Rev. Stat. 1989, ch. 24, par. 11-74.5-2(l).) \u201cStatute\u201d is defined as \u201cthe Constitution or an Act of the General Assembly of this State\u201d in the Criminal Code of 1961 (Ill. Rev. Stat. 1989, ch. 38, par. 2\u201422) and as \u201can act adopted by the General Assembly of this State or by the Congress of the United States\u201d in the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1989, ch. 85, par. 1\u2014209). These definitions clearly do not equate an ordinance with a statute. In addition, we have found no case law, nor has plaintiff provided any, that raises an ordinance of a municipality, even a home rule municipality such as plaintiff, to the level of a statute of the General Assembly. It is true, as maintained by plaintiff, that both statutes and ordinances are legislative acts. However, it does not of necessity follow that they are the same. Neither the legislature, nor the courts, have so held. Therefore, we conclude that, in the absence of a statute passed by the General Assembly, the court had no authority to award attorney fees to the city. The order granting such fees is reversed.\nThe judgment of the circuit court of Du Page County is affirmed in part and reversed in part.\nAffirmed in part; reversed in part.\nUNVERZAGT, P.J., and WOODWARD, J., concur.", "type": "majority", "author": "JUSTICE McLAREN" } ], "attorneys": [ "George A. Thomas, of Thomas & Konewko, Ltd., of Glen Ellyn, for appellant.", "Francis J. Cuneo, Jr., of Naperville, for appellee." ], "corrections": "", "head_matter": "THE CITY OF NAPERVILLE, Plaintiff-Appellee, v. WILLIAM G. LERCH, Defendant-Appellant.\nSecond District\nNos. 2\u201489\u20140539, 2\u201489\u20140840 cons.\nOpinion filed June 8, 1990.\nGeorge A. Thomas, of Thomas & Konewko, Ltd., of Glen Ellyn, for appellant.\nFrancis J. Cuneo, Jr., of Naperville, for appellee." }, "file_name": "0578-01", "first_page_order": 600, "last_page_order": 606 }