author: JUSTICE LUND

text:
    WENDY PACENTA, Plaintiff-Appellant, v. AMERICAN SAVINGS BANK, f/k/a Champaign Loan and Building Association, Defendant-Appellee.
    Fourth District
    No. 4—89—0561
    Opinion filed March 29, 1990.
    Rehearing denied May 3, 1990.
    James A. Martinkus, of Erwin, Martinkus, Cole & Ansel, Ltd., of Champaign, for appellant.
    James W. Evans, of Evans & Froelich, of Champaign, for appellee.
   JUSTICE LUND

delivered the opinion of the court:

The plaintiff appeals from the trial court’s order granting summary judgment for the defendant bank pursuant to article 4 of the Uniform Commercial Code — Bank Deposits and Collections (Code) (Ill. Rev. Stat. 1987, ch. 26, pars. 4—101 through 4—504). The trial court held that the defendant bank had the lawful right to charge back against plaintiff’s individual account the amount of an overdraft created in a joint checking account to which her husband and the plaintiff were cosignatories. We affirm.

On July 20, 1982, the plaintiff opened a private bank account, No. W7—1232—9, with the defendant bank, American Savings Bank, f/k/a Champaign Loan and Building Association. Plaintiff had a previous savings account, No. W7—135—5, but that account was closed by July 22, 1982. On July 26, 1983, plaintiff and her “then husband,” Keith Smilie (Smilie), opened a “NOW” joint checking account in the defendant bank, No. 9—01—0—001297—1. The record does not indicate whether plaintiff and Smilie were divorced at the time of the complaint, but paragraph 4 of the complaint states: “4. That during June of 1984, she additionally had a checking account jointly with her then-husband, Keith Smilie, bearing the account number 9—01—0—001—297—1 [sic].”

On June 5, 1984, Smilie deposited a check from Compunet into the joint checking account in the amount of $3,436.65. Prior to this date, Smilie had written two checks, one for $3,088.18 on May 31 payable to Compunet (check No. 358), and another for $348.48 on June 1 payable to Resource Management Services (check No. 360), with the combined amount being exactly $3,436.66. Subsequent to the deposit of the June 5 check, eight checks were presented for payment to the bank, including the two checks mentioned previously, with the remaining six checks written by either the plaintiff or Smilie. In total, these eight checks amounted to $3,874.16, and were paid by the defendant bank. It is not clear in the record which of these checks were presented and paid for after the June 5 check, but the record does show the plaintiff wrote two checks after June 5, amounting to $324.82. The facts which are not disputed by either party are these: on June 22, the June 5 check was returned from the payor bank (First National Bank of Sullivan) for the second time without payment, and this resulted in an overdraft in the joint checking account of $3,436.65, almost the exact amount of the two checks written by Smilie discussed previously.

The defendant bank then proceeded, without prior notice, to cash in a certificate of deposit (CD), No. 7—07—70012329, held by plaintiff individually in defendant bank, debited this account for the $3,436.65, closed this account and sent the remainder of the CD ($602.13) to the plaintiff by check on June 25, 1984. The defendant also sent another check ($22.39) for the balance of the now closed joint checking account. The bank account held individually by the plaintiff was also closed on June 24, 1984.

In count I of her complaint, the plaintiff sued the bank in trover and conversion for the return of this money, plus interest she should have earned on the money in the savings account, plus interest on the money wrongfully withheld. Count II asked for punitive damages for defendant’s wilfully and wantonly withholding of such money. The court, in its memorandum opinion and order on December 21, 1987, held that count I sufficiently alleged a cause of action for conversion, but dismissed the portions of count I that dealt with interest and also dismissed all of count II. The court then allowed the plaintiff 21 days to amend her complaint. Rather than amending, the plaintiff brought a motion for summary judgment on August 19, 1988, alleging defendant wrongfully converted funds from the plaintiff’s individual bank account No. W7—135—5. Defendant, in its motion for summary judgment, while pointing out that plaintiff’s W7—135—5 account had been closed since 1982, admitted plaintiff had a personal account No. W7—1232—9 with it; and admitted to the facts concerning the existence of a joint checking account, the amount of Smilie’s June 5 check, and the checks Smilie wrote, the amount of which equalled almost exactly the size of the June 5 check. Neither side referred in either motion to the account number of the CD or the fact that the CD was cashed out and closed to satisfy the overdraft.

The trial court in its order of January 11, 1989, granted the defendant’s motion for summary judgment with prejudice, in that the defendant was entitled to judgment as a matter of law. The motion by the plaintiff to reconsider was denied on June 21, 1989, and plaintiff brought this appeal.

The Code, as adopted by Illinois, provides rules for bank deposits and collections under article IV. (Ill. Rev. Stat. 1987, ch. 26, pars. 4—101 through 4—504.) It is well settled under the Code that when a depositor creates an overdraft, the bank may recover against the individual who made such an overdraft. (First National Bank v. Lambert (1982), 109 Ill. App. 3d 177, 182, 440 N.E.2d 306, 310; Ill. Rev. Stat. 1987, ch. 26, par. 4—401.) Section 4 — 401 of the Code mandates that banks have the right to charge a customer’s account, even though such charges create an overdraft. (Ill. Rev. Stat. 1987, ch. 26, par. 4 — 401(1).) By paying off presented checks based on checks already received but not yet accepted by the payor bank, the collecting bank makes a provisional settlement of such checks. (Ill. Rev. Stat. 1987, ch. 26, par. 4—211(1)(a).) If such checks fail for reason of dishonor, the bank may “charge back the amount of any credit given for the item [check] to its customer’s account or obtain refund from its customer.” (Ill. Rev. Stat. 1987, ch. 26, par. 4—212(1).) “Account” is defined as “any account with a bank and includes a checking, time, interest or savings account.” (Ill. Rev. Stat. 1987, ch. 26, par. 4—104(1)(a).) “Item” is defined as “any instrument for the payment of money” (Ill. Rev. Stat. 1987, ch. 26, par. 4—104(l)(g)), which would include a check (Ill. Rev. Stat. 1987, ch. 26, par. 3—104(2)(b)). “Customer” is defined as “any person having an account with a bank or for whom a bank has agreed to collect items.” Ill. Rev. Stat. 1987, ch. 26, par. 4—104(1)(e).

Thus, the law under the Code is well settled that a payment for an overdraft is, in effect, a loan by the bank to the drawer, its customer, who, by the act of drawing a check against nonexistent funds, promises to repay the loan, a loan for which the drawer is liable. (United States Trust Co. v. McSweeney (1982), 91 A.D.2d 7, 9, 457 N.Y.S.2d 276, 278.) This is the primary argument of the defendant, i.e., the plaintiff was a customer of its bank, an overdraft was created against the account of plaintiff, and this was a provisional settlement creating a loan against the plaintiff’s account. When the check was dishonored and the loan not paid, the plaintiff was liable, and the bank had the right to collect this loan from any account the plaintiff held, including the CD account plaintiff held in her own name.

While the language of the Code clearly permits this process against the drawer of the overdraft, it is not clear from this language whether such a process is permitted against any and all signers of the overdraft. (Note, Overdraft Liability of Joint Account Cosignatories, 36 La. L. Rev. 1083, 1084 (1975-76) (authored by Malcolm S. Murchison).) There are no Illinois cases which speak to such a fact situation under the Code. To support her position, the plaintiff cites Nielson v. Suburban Trust & Savings Bank (1962), 37 Ill. App. 2d 224, 185 N.E.2d 404. Yet Nielson is distinguishable in fact pattern and holding in two important respects: (1) the Nielson court specifically found the bank was negligent in its handling of the matter, whereas there is no evidence or finding of such negligence in this case; and (2) the Nielson case was decided prior to Illinois’ adoption of the Code, and therefore, its holding was not based on the Code in any way. (Nielson, 37 Ill. App. 2d at 234-35, 185 N.E.2d at 409.) Because of this, Nielson is inapplicable, and this is a case of first impression.

As stated previously, liability of cosigners of a joint account is not clearly dealt with in the Code. Commentary and case law across the country considering the Code are divided on this particular issue. (Note, Banking Law — Overdrafts—Liability for Overdrafts of a Joint Bank Account under the UCC—Cambridge Trust Co. v. Carney, 333 A.2d 442 (N.H. 1975), 1976 B.Y.U. L. Rev. 499, 502-03 (hereinafter Liability for Overdrafts).) Some commentators argue that to impose such liability would establish an implied-partnership type of liability. They further argue that since doubt exists as to whether the problem was fully examined by the drafters of the Code, the courts should not necessarily conclude that the drafters intended to imply a partnership in such an account. Therefore, the courts should not hold all cosigners liable in the event of an overdraft by one of the signers. (Note, Overdraft Liability of Joint Account Cosignatories, 36 La. L. Rev. at 1086-87.) We are unpersuaded by this view.

We find more persuasive the view that the Code language is very broad in this area, and the Code should be liberally construed. The Code’s purpose is to permit and promote continued expansion of commercial practice in that it encourages banks to pay overdrafts by allowing the banks to recover from their makers, and this policy would be undermined if all cosignatories could not be held liable. (See, e.g., Liability for Overdrafts, 1976 B.Y.U. L. Rev. at 507-08.) Further, since section 4 — 401 of the Code “ ‘speaks in terms of charging the account rather than *** the actual drawer of the check, *** the subsection authorizes the bank to charge the payment on overdraft to all members of an overdrawn joint account.’ ” Williams v. Cullen Center Bank & Trust (Tex. 1985), 685 S.W.2d 311, 314, quoting 1 W. Hawkland, A Transactional Guide to the Uniform Commercial Code 385 (1964).

Examining the Code definitions set forth above, the plaintiff is clearly the customer of the defendant bank, and the Code allows the bank to charge against plaintiff’s accounts, including any account the plaintiff has with the bank, including her individual savings account, an overdraft of an account to which the plaintiff is a cosignatory. Thus, the Code permits the defendant bank to lawfully remove the funds from the plaintiff’s individual account.

The plaintiff argues since she did not present the check which was dishonored, she should not be held liable for this amount. In other jurisdictions which have had occasion to consider cases involving cosignatory liability, the courts have arrived at differing results. In Williams, the Texas Supreme Court established a test for such alleged indirect cosignatory liability. In this test, the burden is on the bank to prove (1) plaintiff’s participation in the transaction which created the overdraft; (2) plaintiff’s enrichment by the overdraft; or (3) that plaintiff in some way ratified the transaction creating the overdraft. (Williams, 685 S.W.2d at 315.) In Williams, the trial court granted summary judgment for the bank, but the appellate court reversed, ordering a new trial to determine whether the cosignatory was liable according to this test.

In Cambridge Trust Co. v. Carney (1975), 115 N.H. 94, 333 A.2d 442, which held the cosignatory not liable, the facts are readily distinguishable from this case. In Cambridge Trust, the evidence directly showed the wife did not participate in the overdraft, she never wrote any checks on this joint account, and there was a finding of negligence on the part of the bank, since the husband had previously overdrawn the account on six separate occasions. (Cambridge Trust, 115 N.H. at 98, 333 A.2d at 445.) Unlike Cambridge Trust, this case involves no evidence of negligence, but does involve evidence of direct participation by the plaintiff in the account which was overdrawn by the joint tenant.

In McSweeney, both husband and wife participated equally in a joint account, upon which numerous overdrafts were written. While the court did not hold the wife liable for the entire amount of the overdraft total, she was held liable for the total amount of the checks she personally had written as a member of the account ($16,811.43), irrespective of whether those checks directly caused the overdraft. (McSweeney, 91 A.D.2d at 11, 457 N.Y.S.2d at 279.) Although cited by plaintiff as supporting her argument, McSweeney, in fact, demonstrates that the plaintiff is liable for any checks she wrote in the account, and may be liable for more than her “share” of the total overdrafts.

In Yoder v. Cromwell State Bank (Ind. App. 1985), 478 N.E.2d 131, the husband presented several checks to the bank from a dairy company, which later stopped payment, resulting in a very large overdraft, a small part of which was set off against what remained of the Yoders’ joint checking account held by both husband and wife. The trial court granted summary judgment against the Yoders for the balance of the overdraft debt. (Yoder, 478 N.E.2d at 132.) The defendant wife in Yoder argued she should not be held liable, since she did not personally write or present these checks to the bank. The Yoder court rejected this argument, since the wife had the right to draw on the provisional credit established in the account upon the husband’s presentment of the checks, thus providing her with consideration and liability for these checks. Yoder, 478 N.E.2d at 136.

As in Yoder, it was on the plaintiff’s account which the provisional credit was made. As holder of the account in joint tenancy, she had the right at all times to withdraw any sums under this account. The record shows the plaintiff wrote two checks in this account after the presentment of the June 5 check. Therefore, according to the test in Williams, there is evidence in the record that she participated in the writing of checks on the account after provisional credit was made, and when plaintiff received this provisional credit, she was enriched by the virtue of her ability to draw on such funds while they remained in the account, thus imparting to the plaintiff consideration for the check, whether or not she actually participated in the transaction. As in Yoder, therefore, plaintiff is liable upon the dishonor of the June 5 check and the revocation of the provisional credit.

Furthermore, section 4 — 103 of the Code states, “The effect of the provisions of this Article may be varied by agreement except that no agreement can disclaim a bank’s responsibility for its own lack of good faith ***.” (Ill. Rev. Stat. 1987, ch. 26, par. 4 — 103(1).) The signatory card in this case, while having no specific language regarding indemnification or permitting the bank to set off against the individual accounts of the plaintiff, did state the plaintiff and Smilie signed the account “as joint tenants with the right of survivorship, and not as tenants in common.” As such, both members of this joint account had the right to draw on and deposit funds in this account. Therefore, this is affirmative and clear language that enabled the plaintiff to draw on and benefit from the provisional credit. Since there is no evidence of bad faith on the part of the bank, such language regarding joint tenancy is further evidence that the plaintiff fits the Williams test and is liable for the amount of the overdraft.

Therefore, it is the holding of this court that it was proper under the Code for the bank to hold the plaintiff, as its customer, liable for funds resulting from the provisional credit revoked as a result of the dishonored check of June 5. It is common commercial practice for the bank to make such provisional loans, and public policy requires that one who has established a joint account be held liable, to the extent of his funds held in other accounts in that bank, for the amount of credit the bank gives the joint account, and for any overdrafts which result from this credit, regardless of who personally presents the check on that account. Such a bank has the right, under the Code, to unilaterally charge this debt against any account the plaintiff customer may have with the bank, including plaintiff’s individual account or CD, regardless of whether the account card has a specific indemnification clause for the bank.

For the foregoing reasons, the decision of the trial court is affirmed.

Affirmed.

SPITZ and GREEN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE REINHARD JUSTICE GEIGER,

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TIMOTHY CONDON, Defendant-Appellant.
    Second District
    No. 2—88—1069
    Opinion filed March 27, 1990.
    Rehearing denied April 27, 1990.

      GEIGER, J., dissenting.
    George Patrick Lynch, Ltd., of Chicago (George P. Lynch, of counsel), for appellant.
    James E. Ryan, State’s Attorney, of Wheaton (William L. Browers and

      Mary Beth Burns, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE REINHARD

delivered the opinion of the court:

Defendant, Timothy Condon, was indicted in the circuit court of Du Page County on one count of armed violence (Ill. Rev. Stat. 1987, ch. 38, par. 33A—2), one count of unlawful delivery of more than 15 grams of a substance containing cocaine (Ill. Rev. Stat. 1987, ch. 56½, par. 1401(a)(2)), one count of unlawful possession with the intent to deliver more than 15 grams of a substance containing cocaine (Ill. Rev. Stat. 1987, ch. 56½, par. 1401(a)(2)), one count of unlawful possession with the intent to deliver more than 30 grams but not more than 500 grams of a substance containing cannabis (Ill. Rev. Stat. 1987, ch. 56½, par. 705(d)), one count of conspiracy to deliver 15 grams or more of a substance containing cocaine (Ill. Rev. Stat. 1987, ch. 56½, par. 1405(a)), one count of narcotics racketeering (Ill. Rev. Stat. 1987, ch. 56½, par. 1654(a)), and one count of unlawful delivery of 30 grams or more of a substance containing cocaine (Ill. Rev. Stat. 1987, ch. 56½, par. 1401(a)(2)). Following a bench trial, defendant was found guilty of the first four counts and not guilty of the latter three. He was sentenced to 12 years’ imprisonment on the armed violence conviction, 12 years’ imprisonment on the possession with intent to deliver cocaine conviction, 12 years on the delivery of cocaine conviction, and 3 years on the possession with intent to deliver marijuana conviction, with all sentences to run concurrently.

The following issues are raised on appeal: (1) whether the failure of the police to knock and announce prior to executing the search warrant for defendant’s residence renders the search of defendant’s residence unreasonable; (2) whether defendant was proved guilty beyond a reasonable doubt of the two counts charging possession with intent to deliver cocaine and possession with intent to deliver marijuana; (3) whether defendant was proved guilty beyond a reasonable doubt of armed violence; (4) whether defendant was proved guilty beyond a reasonable doubt of unlawful delivery of more than 15 grams of a substance containing cocaine; (5) whether the trial court erred in denying defendant a Franks hearing; (6) whether the trial court erred in denying defendant’s motion to dismiss and his motion in arrest of judgment as to the armed violence count; and (7) whether the trial court erred in admitting testimony of unrelated criminal conduct.

On November 6, 1987, at approximately 6:45 p.m., agents of the Du Page County Metropolitan Enforcement Group (DuMEG) executed a search warrant on a residence located at 1 N. 535 Swift Road, Lombard, Illinois. Defendant resided at that address, but the home was owned by defendant’s brother, Bernard J. Condon. Bernard Con-don was a codefendant with defendant, but was a fugitive at the time of defendant’s trial.

According to the complaint for search warrant, prepared by DuMEG agent Barbara Durnil, Agent Charles Dvorak was informed by Roger Trenton that Trenton had purchased cocaine on several occasions from Bernard Condon and defendant at the 1 N. 535 Swift Road residence. Trenton also told Dvorak that defendant and his brother would distribute cocaine at the residence between 6 p.m. and 9 p.m. According to Trenton, there were two closed circuit television cameras and a police scanner to monitor traffic near the residence and there were several weapons located in the residence to protect the cocaine and currency.

The complaint further states that on June 10, 1987, Dvorak completed a purchase of cocaine by sending Trenton into the residence, where he purchased cocaine from defendant. Trenton told Dvorak that the sale occurred in the second-floor office of the residence. According to Dvorak, while at defendant’s residence on June 10, 1987, he observed two surveillance cameras, one at the front door and one at the rear door. Dvorak also observed a police radio scanner on the kitchen counter as he was sitting in his vehicle in the driveway.

The complaint for search warrant also stated that an individual named Ben Adams, who sold cocaine to Agent Durnil, had indicated that his source was located at 1 N. 535 Swift Road, defendant’s residence.

The defendant’s evidence, adduced at the hearing on defendant’s motion to suppress evidence, indicates that defendant was in the kitchen of the residence at the time the police executed the warrant. According to defendant, the police did not knock, use the doorbell, or announce themselves. Defendant heard two loud bangs, and at least a dozen police officers, whom defendant described as S"WAT officers, forcibly entered the house.

Defendant admitted in cross-examination that there is a surveillance camera at both the front and back doors of the house and a monitor in the kitchen capable of switching from one camera to the other. According to defendant, the surveillance cameras were on at the time the police entered his home, but it was too dark to see anything. Defendant further admitted that he had 13 guns in the house, including a loaded revolver in his bedroom. Most of the weapons were shotguns that defendant said he used for hunting.

The State only offered the complaint for search warrant at the suppression hearing. The trial court denied defendant’s motion to suppress, finding that there were exigent circumstances which justified the officers’ failure to knock and announce prior to entering the home.

The State did not contend below nor does it on appeal that the police officers knocked and announced in this case. The evidence at the suppression hearing and the trial establishes that they did not knock and announce, but, rather, gained entrance by using a battering ram against the front door.

At trial, Officer Michael Sullivan testified that on November 6, 1987, while conducting surveillance on the Condon residence, he observed Agent Durnil and Ben Adams arrive at the residence. Adams exited the vehicle, entered the residence, exited the residence, and reentered Durnil’s vehicle. Durnil then drove away, and Sullivan was advised by radio shortly thereafter that Adams was arrested with cocaine in his possession. He then observed the team of officers execute the search warrant of defendant’s premises. They wore bulletproof vests, had special weapons, and used a ram and access equipment.

Ben Adams testified that he went with Durnil to the house on November 6, 1987, to purchase an ounce of cocaine. He met defendant and gave him $1,900 in prerecorded money. Defendant counted the money, and his brother, Bernard Condon, went upstairs. About 5 to 10 minutes later, defendant’s brother returned to the kitchen and handed what Adams assumed to be an ounce of cocaine to defendant. Defendant in turn placed the substance on the counter and said “[tjhere you go.” The substance was later determined by laboratory analysis to contain cocaine. Defendant placed the $1,900 in his front pocket after counting it. At the time of defendant’s arrest in the kitchen, the prerecorded money was found on the floor near defendant. A search of the house revealed cocaine and marijuana in the second-floor office.

Joseph Nebren, testifying for the State, stated that on at least one occasion in 1987 he had purchased a white, powdery substance he believed to be cocaine from defendant and that the transaction occurred in an office located on the second floor of the Condon residence. On cross-examination, Nebren admitted lying to the grand jury when he testified that he had never purchased cocaine from defendant and that he was now testifying pursuant to a grant of immunity.

Karen Schaeffer, defendant’s fiancee, testified for defendant that she lived with defendant at 1 N. 535 Swift Road for about three months and that Bernard Condon owned the house. According to Schaeffer, there are four bedrooms upstairs, one of which was Bernard Condon’s office, and that the office was kept locked all the time. Bernard Condon had the only key to the door and to the lock-box which contained the cocaine. According to Schaeffer, defendant did not have a key to either the office or the lockbox. She never saw defendant open the office door or the lockbox, and Bernard Condon was the only person to open the office door or open the lockbox. Defendant did not testify or offer any other witnesses.

We first address defendant’s contention that the unannounced entry by the law enforcement officers was constitutionally unreasonable under the circumstances. Although the failure of law enforcement officers to announce their authority and purpose prior to entering a dwelling is not a per se constitutional violation, the presence or absence of such an announcement is an important consideration in determining whether a subsequent entry to arrest or search is constitutionally reasonable. (People v. Saechao (1989), 129 Ill. 2d 522, 531, 544 N.E.2d 745; People v. Wolgemuth (1977), 69 Ill. 2d 154, 156, 370 N.E.2d 1067.) The purpose of the knock-and-announce rule is to notify the person inside of the presence of the police and of the impending intrusion, give that person time to respond, avoid violence and protect privacy as much as possible. (People v. Ouellette (1979), 78 Ill. 2d 511, 518, 401 N.E.2d 507.) Exigent circumstances may, in a proper case, excuse the failure of officers to knock and announce before entering a dwelling to execute a warrant. (Saechao, 129 Ill. 2d at 531, 544 N.E.2d at 749; Ouellette, 78 Ill. 2d at 518, 401 N.E.2d at 510.) Exigent circumstances may encompass such considerations as danger to the police executing the warrant, the uselessness of the announcement, or the ease with which the evidence may be destroyed. Ouellette, 78 Ill. 2d at 518-19, 401 N.E.2d at 510.

The State contends that there were exigent circumstances here sufficient to excuse the law enforcement officers’ failure to knock and announce. Specifically, it argues that the presence of cocaine, the existence of surveillance cameras and a police radio scanner, the presence of weapons in the house, and the fact that defendant’s brother was arrested in 1985 with cocaine and a loaded .22 caliber semiautomatic pistol in his possession constitute exigent circumstances justifying the failure to knock and announce. The State relied solely on the statements in the complaint for search warrant to show exigent circumstances and did not present any testimony by the law enforcement officers to support their failure to knock and announce their presence.

Existence of narcotics alone is not an exigent circumstance, but rather the police must have particular reasons to believe reasonably in a particular case that evidence will be destroyed. (Ouellette, 78 Ill. 2d at 520, 401 N.E.2d at 511; People v. Clark (1986), 144 Ill. App. 3d 7, 11, 494 N.E.2d 166.) Here, there is no evidence that the cocaine was situated so as to be readily disposed of, and the State has not contended otherwise. Thus, the mere fact that cocaine was the object of the search does not constitute an exigent circumstance.

The informant’s general statement that there were several weapons in the house to protect the cocaine and currency does not comprise an exigent circumstance either. The existence of a weapon should excuse the knock-and-announce rule only where the officers reasonably believe the weapon will be used against them if they proceed with the ordinary announcements. (Ouellette, 78 Ill. 2d at 520, 401 N.E.2d at 511.) The presence of weapons alone does not create an exigent circumstance. (People v. Marinez (1987), 160 Ill. App. 3d 349, 352, 513 N.E.2d 607.) Furthermore, the informant’s statement that the weapons were to protect cocaine and currency is conclusory at best. It does not identify the type of weapons or any facts which support the conclusion that the weapons located in the house would be used against law enforcement officers for the purpose of protecting cocaine and currency. There are no references to any statements by defendant or any other occupant of the house indicating the purpose of the weapons or any reference to other facts which would support that conclusion. Accordingly, the bare statement that there were weapons in the house to protect cocaine and currency does not constitute an exigent circumstance. In so holding, we note the lack of evidence as to whether the weapons were loaded, what type of weapons were involved, the ready accessibility of the weapons, the likelihood that any of the weapons would be used by the occupants of the home against police, or that any of the occupants had ever used the guns against law enforcement officers or anyone else. Moreover, giving notice of the presence of the police seems compelling in the face of startling someone with a weapon, absent evidence that the weapon will be used against the police. Ouellette, 78 Ill. 2d at 520, 401 N.E.2d at 511.

The police were also aware that approximately two years earlier defendant’s brother, the owner of the house, had been arrested for possession of cocaine and had a loaded .22 caliber semiautomatic pistol in his possession at the time of his arrest. Although such a fact is particularly relevant to the question of the necessity of knocking and announcing, it is insufficient to justify the unannounced entry in this case. Again, the knock-and-announce rule should only be excused where the officers reasonably believe that a weapon will be used against them if they do announce. Ouellette, 78 Ill. 2d at 520, 401 N.E.2d at 511; People v. Hardin (1989), 179 Ill. App. 3d 1072, 1076-77, 535 N.E.2d 1044.

In this case, defendant’s brother had a loaded semiautomatic pistol in his possession two years prior to execution of the warrant. There is no evidence that he used, attempted to use, or was inclined to use the pistol against police at the time he was arrested (see Hardin, 179 Ill. App. 3d at 1077, 535 N.E.2d at 1046 (where defendant told officers at the time of his prior arrest that they were fortunate that he did not get to his gun)), that he had violent propensities, that he had ever used force against a police officer, or that he had ever been convicted of a violent crime involving the use of weapons. Nor is there any evidence that he would be carrying or have ready access to a loaded weapon at the time the warrant was to be executed, or that he was likely to use the weapon against the police. The mere fact that he had possessed a loaded weapon when arrested two years before does not, alone, constitute an exigent circumstance, particularly where there is no other evidence of his likelihood to use the weapon.

The last fact asserted as an exigent circumstance was the presence of a surveillance camera at the front and back of defendant’s residence and a police radio scanner in the kitchen. We do not believe, under these particular circumstances, that the existence of surveillance equipment constitutes an exigent circumstance justifying an unannounced entry. The mere presence of surveillance cameras and a police scanner does not constitute a threat to police safety absent some evidence that the occupants are likely to use violence against the police or are likely to destroy evidence. The mere fact that the occupants are able to observe the approach or presence of the public, including the police, does not create an exigency where there is no evidence that the occupants will utilize their observations to cause violence or dispose of evidence. Nor do we believe that all these various circumstances viewed in their totality constitute an exigency sufficient to justify the unannounced entry in this case. Accordingly, we find the trial court’s denial of the motion to suppress to be manifestly erroneous under the facts of this case.

In so holding, we are particularly mindful of the potentially dangerous and volatile situation faced by law enforcement officers who execute warrants on suspected drug traffickers; however, we must not lose sight of one of the purposes of the knock-and-announce rule which is to avoid violence. Because of the violent and competitive nature of the drug trade, there is the risk that drug traffickers may resort to violence if confronted with an unannounced and unidentified violent entry by unknown persons. Absent specific, particularized evidence that the suspected traffickers will likely use force against an announced police entry, the police are generally less likely to encounter a violent situation by announcing their authority and purpose. See Ouellette, 78 Ill. 2d at 520, 401 N.E.2d at 511.

The State alternatively contends that we abandon the knock- and-announce requirement, particularly in narcotics cases, and follow the dissent in Ouellette. We are disinclined to do so for several reasons. First, as an intermediate appellate court, we are bound to follow the decisions of our supreme court. (Agricultural Transportation Association v. Carpentier (1953), 2 Ill. 2d 19, 27, 116 N.E.2d 863; People v. Palmer (1986), 141 Ill. App. 3d 234, 238, 490 N.E.2d 154.) Second, we believe the knock-and-announce rule has continued vitality as it was recently reaffirmed by our supreme court in People v. Saechao (1989), 129 Ill. 2d 522, 531, 544 N.E.2d 745. Finally, we believe the knock-and-announce rule, with its exigent circumstances exception, strikes the proper balance between an individual’s privacy interests in his home and the State’s interest in safe and effective law enforcement.

Because of our conclusion that all the evidence seized as a result of the search of defendant’s residence should be suppressed, there is little likelihood that the State will have sufficient evidence to retry defendant on the possession of marijuana, possession of cocaine, and armed violence counts. We are compelled, however, to consider the reasonable doubt issue, raised by defendant on appeal as to those three counts, pursuant to People v. Taylor (1979), 76 Ill. 2d 289, 309, 391 N.E.2d 366. In doing so, we must consider the suppressed evidence as well. Lockhart v. Nelson (1988), 488 U.S. _, 102 L. Ed. 2d 265, 109 S. Ct. 285.

As to the possession of marijuana and possession of cocaine counts, an examination of the evidence reveals that defendant resided in the home with his fiancee. Where narcotics are found on the premises under the control of the defendant, this fact, in and of itself, gives rise to an inference of knowledge and possession by the defendant which may be sufficient to sustain a conviction of unlawful possession, absent other facts and circumstances which might create a reasonable doubt as to his guilt. (People v. Galloway (1963), 28 Ill. 2d 355, 358, 192 N.E.2d 370; People v. Trask (1988), 167 Ill. App. 3d 694, 707, 521 N.E.2d 1222.) Whether there is possession and knowledge is a question of fact, the determination of which will not be disturbed on review unless the evidence is so palpably contrary to the verdict, or so unreasonable, improbable or unsatisfactory as to create a reasonable doubt of guilt. (Galloway, 28 Ill. 2d at 358, 192 N.E.2d at 372; Trask, 167 Ill. App. 3d at 707, 521 N.E.2d at 1231.) In examining all of the evidence, we believe the State proved defendant guilty beyond a reasonable doubt of possession with the intent to deliver cocaine and possession with intent to deliver marijuana. Accordingly, because the evidence obtained pursuant to the illegal search was improperly admitted, we reverse defendant’s convictions of these two counts and remand for a new trial.

We address next defendant’s conviction of armed violence. Defendant contends, relying on People v. King (1987), 155 Ill. App. 3d 363, 507 N.E.2d 1285, that he was not proved guilty of the offense of armed violence because the evidence fails to establish that he “carried on or about his person or was otherwise armed” with a deadly or dangerous weapon pursuant to the statutory definition contained in section 33A — 1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, par. 33A—1). The State responds that defendant had knowledge of and control over the various weapons located in the house, particularly the loaded pistol in the headboard of his second-floor bedroom and the loaded pistol in the second-floor office where the cocaine was located, and therefore he was “otherwise armed” within the meaning of the armed violence statute. In essence, as the State further elaborated in oral argument, defendant constructively possessed the weapons because the weapons were found in a home occupied by him and therefore he was “otherwise armed.”

The armed violence statute makes it a felony to commit, while armed with a dangerous weapon, any felony under Illinois law. (People v. Alejos (1983), 97 Ill. 2d 502, 508, 455 N.E.2d 48.) The mere presence of a weapon and not its actual use is sufficient to meet the requirements of the armed violence statute. (Alejos, 97 Ill. 2d at 507, 455 N.E.2d at 50.) Although the statute does not require use of the weapon, it does require that the person carry the weapon on or about his person or be otherwise armed. (People v. King (1987), 155 Ill. App. 3d 363, 369, 507 N.E.2d 1285.) The mere physical existence of the weapon, without knowledge or control, including immediate access to the weapon, is not within the meaning of the armed violence statute. King, 155 Ill. App. 3d at 369, 507 N.E.2d at 1288.

Here, although there is ample evidence that various weapons, including two loaded pistols, were present in the house, there is no evidence that defendant possessed or had immediate access to any of them while committing a felony, either during the delivery of cocaine to Ben Adams or at the time the law enforcement officers entered defendant’s residence, found the cocaine and marijuana, and arrested him. Defendant was found in the kitchen of his house, and the loaded pistols and numerous unloaded weapons were located on the second floor. The only weapons on the first floor were an unloaded shotgun and unloaded .22 caliber rifle found in the downstairs bedroom. Thus, defendant was not “otherwise armed” within the meaning of the armed violence statute, and his conviction of that offense must be reversed without remandment for a new trial.

We would note that the question of whether defendant constructively possessed the various weapons might be relevant to other offenses where possession is an element; however, it is not dispositive of the question of whether defendant was otherwise armed for purposes of the armed violence statute. As noted in People v. King (1987), 155 Ill. App. 3d 363, 507 N.E.2d 1285, the basic legal concepts are different between an armed violence situation and an unlawful possession scenario. (155 Ill. App. 3d at 369, 507 N.E.2d at 1289.) We agree with the reasoning of King.

We next consider defendant’s contention that he was not proved guilty beyond a reasonable doubt of unlawful delivery of cocaine to Ben Adams. We note that the trial court expressly considered corroborative evidence along with the admissible testimony of Ben Adams. The corroborative evidence included $1,900 in prerecorded money from Adams found on the floor near defendant, cocaine, and a ledger book recording the transaction with Adams for which he was charged, all recovered as a result of the unconstitutional entry into the residence. Consideration of the illegally obtained evidence in corroboration of Adams’ testimony prejudiced defendant to the extent we must reverse the trial court’s finding of guilt as to the unlawful delivery count. We remand for a new trial, however, as all of the evidence was sufficient to prove defendant guilty beyond a reasonable doubt of unlawful delivery of cocaine.

Due to our disposition of the foregoing issues, we need not address the remaining issues raised by defendant.

We therefore reverse the order of the circuit court of Du Page County denying defendant’s motion to suppress the evidence discovered in his residence. We also reverse and remand for a new trial on the possession with intent to deliver cocaine, possession with intent to deliver marijuana, and unlawful delivery of cocaine counts. We reverse defendant’s armed violence conviction.

The judgment of the circuit court of Du Page County is reversed in part and reversed and remanded in part.

Reversed in part; reversed and remanded in part.

WOODWARD, J., concurs.

JUSTICE GEIGER,

dissenting:

I respectfully dissent.

As my colleagues have stated, we must be particularly mindful of the potentially dangerous and volatile situation faced by law enforcement officers who execute warrants on suspected drug traffickers. While the majority may be correct that the police are generally less likely to encounter violence if they announce their authority and purpose before entering a building to execute a warrant, the elevation of that general principle to a rule of law under facts as extreme as these may result in tragic consequences. Law enforcement officers, in attempting to conform their entry tactics to the majority’s opinion, may well face unnecessary danger.

When viewed as a totality, the complaint for a search warrant in this case established that the residence was protected by television monitors and a police scanner and that several weapons were available to the occupants. The police were also aware that one of the residents of the house had been arrested with cocaine and a loaded pistol on his person and that he was facing charges of armed violence, a forcible felony, and unlawful delivery of a controlled substance. The combination of these factors, in my opinion, satisfies the test of exigent circumstances set out in People v. Ouellette (1979), 78 Ill. 2d 511, 401 N.E.2d 507, and restated by this court in People v. Hardin (1989), 179 Ill. App. 3d 1072, 535 N.E.2d 1044.

The distinction between the facts in this case and those in Hardin is too fine. We are by this decision, as Justice Ward said in his dissent in Ouellette, “calling upon officers whose lives may be at stake to make nice judgments as to whether decisions that their lives are imperiled are reasonable” (Ouellette, 78 Ill. 2d at 525, 401 N.E.2d at 513). I would find that the police acted properly and would affirm the trial court.


author: JUSTICE REINHARD

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOSE SOSA, JR., Defendant-Appellant.
    Second District
    Nos. 2—88—1105, 2—88—1268 cons.
    Opinion filed March 30, 1990.

      Robinson & Skelnik, of Elgin, and Frank J. Giampoli, of Self & Giampoli, of Aurora (Mary Robinson, of counsel), for appellant.
    Gary V. Johnson, State’s Attorney, of Geneva, and James E. Ryan, State’s Attorney, of Wheaton (William L. Browers' and Colleen M. Griffin, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE REINHARD

delivered the opinion of the court:

In appeal No. 2—88—1105, defendant, Jose Sosa, Jr., was indicted in the circuit court of Kane County on two counts of attempted first-degree murder (Ill. Rev. Stat. 1987, ch. 38, par. 8—4) and two counts of armed violence (Ill. Rev. Stat. 1987, ch. 38, par. 33A—2). Following a bench trial, he was found guilty of one count of attempted first-degree murder and one count of armed violence, which was subsequently vacated, and sentenced to 10 years’ imprisonment and fined $5,000 on the attempted murder conviction.

In appeal No. 2—88—1268, the State filed a petition to revoke defendant’s probation on a separate aggravated battery conviction based on the attempted murder conviction, which was granted, and he was sentenced to a five-year concurrent term of imprisonment.

Defendant raises the following issues in the consolidated appeals: (1) whether he was denied his right to a jury trial because he was compelled to waive his right to a jury after the trial court denied his motion for a mistrial based upon the State’s failure to disclose a statement made by defendant to the arresting officer; (2) whether the trial judge misapplied the law and failed to find defendant had the intent to kill in finding defendant guilty of attempted murder; (3) whether the trial court abused its discretion in imposing a $5,000 fine; and (4) whether the revocation of defendant’s probation, premised upon his attempted murder conviction, must be reversed.

The victim, Victor Barrera, testified that on July 26, 1987, at about 5 to 6 p.m., he was a passenger in a car driven by a friend named Juan Anaya. As they drove down a street in Aurora, Illinois, he observed defendant, who was sitting on a bicycle talking to a couple of girls and blocking their path. Juan asked defendant to move, and defendant started using profanity towards Barrera and Juan. Defendant then kicked Juan’s vehicle and grabbed Barrera by the hair.

Barrera observed what appeared to be a screwdriver in defendant’s hand and took a small screwdriver with him as he left the vehicle. As Barrera exited, he heard something go by his ear, felt a buzzing in his ear, and felt blood running down his neck. He then ran down a side street, observed a car with its trunk lid open, and grabbed a tire iron from the trunk.

Barrera then began chasing defendant on foot. As Barrera chased defendant, defendant turned and, at a distance of about eight steps, fired a pistol at him, striking him in the groin area. After Barrera was shot in the groin, he continued to chase defendant. Defendant got into a vehicle driven by a female and drove away.

Dr. Abraham Steinberg, the physician who treated Barrera in the emergency room, stated that the bullet entered Barrera where his penis joins his scrotum, which means the bullet entered from the front of his scrotum. There were no other signs of damage to Barrera’s body possibly caused by a bullet except the injury to his ear.

Juan Anaya, who was driving the vehicle in which Barrera was a passenger, essentially corroborated Barrera’s testimony up to the point Barrera exited the vehicle. Anaya did not observe the subsequent encounter between Barrera and defendant but did hear a shot fired.

Salvador Gallegos, who was present at the time of the encounter, stated that he observed a group of people gathered together as though there was going to be a fight. He observed Barrera running after another person, saw the other person gesture as if shooting a gun, and heard a shot. He did not see a gun in the other person’s hand, and both Barrera and the other individual continued running after the shot was fired. He did not observe Barrera with anything in his hands. He also heard a second shot.

Officer Virgil Null of the Aurora police department observed a tire iron lying next to Barrera, who was lying in the street when Null arrived.

Officer Joseph Ramos of the Aurora police department testified regarding a photographic array displayed to Barrera when he was in the hospital. Barrera quickly pointed to defendant as the man he chased on the date in question and indicated that he was positive of his identification.

Officer Kevin Baxter, another Aurora police officer, testified regarding his arrest of defendant four days after the occurrence pursuant to an arrest warrant issued as a result of this incident. According to Baxter, he observed defendant riding his bicycle, and defendant, who knew Baxter was a police officer, looked at him and began peddling faster. Baxter gave chase in his squad car, and defendant entered a home. After back up officers arrived, Baxter and several officers went and knocked on the door of the home, and one of its occupants answered. Baxter explained that they were going to search for defendant, and the occupant went into the home and returned with defendant.

The prosecutor then asked Baxter, “What, if anything, happened at that time?” Baxter responded, “At that time, I advised him we had a warrant for attempted murder, handcuffed him, and he told me [he] would have shot me if he had his chance.” Defendant objected and moved for a mistrial. In doing so, he argued that the State’s failure to reveal the statement prior to trial constituted a discovery violation and that the statement was irrelevant and inadmissible. The trial court sustained the objection but refused to grant a mistrial. Rather, it struck the testimony and instructed the jury to disregard it.

The following morning defendant renewed his motion for mistrial. The assistant State’s Attorney stipulated that she became aware of the statement defendant made to Baxter about one hour before Baxter testified and that she forgot to advise defense counsel of the statement. The trial court again denied defendant’s motion for a mistrial. Defendant then asked to waive his right to a jury trial. The trial court, after admonishing defendant of his right to a jury trial, granted defendant’s request and dismissed the jury.

Robert Hunton, a forensic scientist employed by the State of Illinois, testified that the bullet recovered from Barrera’s scrotum was partially flattened. According to Hunton, a bullet would have to have hit a hard surface to have flattened and striking soft flesh would not cause it to flatten. Hunton further elaborated that the bullet could be flattened by striking bone, a tire iron, or upon being removed from the body.

At the conclusion of the State’s case, defendant moved for a direeled finding on all four counts, and the trial judge granted the motion as to the armed violence count premised upon Barrera being shot in the ear.

Officer Ramos, testifying for defendant, stated that he interviewed Barrera at the hospital on the date of the incident and that Barrera told him that defendant shot him in the ear as he exited the vehicle and that he reached in and grabbed a tire iron and chased defendant. According to Ramos, Barrera told him that defendant shot at him several times, hitting him once in the groin.

Defendant testified that he was blocking traffic while talking to his girlfriend’s sister and that he and the occupants of a vehicle began cussing at each other. Defendant denied kicking the car and stated that Barrera came out of the car carrying a screwdriver. According to defendant, Barrera was swinging the screwdriver at him, and defendant picked up a rock, threw it, and hit Barrera in the left ear.

Barrera then got back in the car, and the car drove off. Defendant went over to the corner because he was angry. Defendant then conversed with his girlfriend, who indicated that several guys were grabbing tire irons from the trunk of a car. Defendant then observed Barrera running towards him with a tire iron. Defendant began running, and Barrera chased him. As Barrera was catching up to him, defendant heard two shots fired. Defendant kept running, got into a car driven by his girlfriend’s friend, and took off. Defendant denied ever firing a gun at Barrera.

Defendant’s girlfriend, Martha Jimenez, testified that she told defendant that she observed three men grab a tire iron and screwdriver from the trunk of a car. She then observed defendant running. Jimenez and her girlfriend followed defendant in their car as he was being chased by one of the men whom she had seen removing the tire iron and screwdriver from the trunk of a car. As they were driving along, she heard a shot fired from the right side of the street, but defendant was running along the left side of the street. Defendant continued running and jumped into the car. Jimenez did not observe defendant carrying any weapon or gun. Nor did she observe him turn and shoot at the person chasing him. Nancy Olvera, Jimenez’s girlfriend, and the driver of the vehicle that defendant entered after being chased, essentially corroborated Jimenez’s testimony.

The trial court found defendant not guilty of attempted first-degree murder based on the alleged shooting of Barrera in the ear. The court further found defendant guilty of attempted first-degree murder and armed violence based on the shooting of Barrera in the groin.

At the sentencing hearing, defense witnesses testified that defendant lived with his parents and had been unemployed for about two years. Defendant had three children with his girlfriend and contributed some money for their support when he was working. The trial judge sentenced defendant to 10 years’ imprisonment and a $5,000 fine. With respect to the fine, the trial judge commented, “I just took your bond is what I did. You posted bond. I just took it for the fine.”

Defendant filed a motion to reconsider the sentence, contending, inter alia, that the trial court had imposed a fine without considering defendant’s financial resources or future ability to pay. At a hearing on this motion, defendant’s mother testified that she posted bail of $5,000 for defendant taken from her own bank account. The trial court denied the motion to reconsider.

Defendant’s first contention essentially is that he was denied his right to a jury trial because of Officer Baxter’s testimony that defendant told Baxter that he would have shot Baxter if he had the chance, a statement which the State failed to disclose to defendant. In this regard, he argues that the trial court erred in refusing to grant a mistrial requested by him and he was given no choice but to waive a jury rather than continue the jury trial before jurors who were tainted by Officer Baxter’s testimony. The State, while not addressing the compelled waiver of jury trial theory, apparently concedes that it violated discovery by not advising defendant of the statement, but responds that any prejudice which resulted from Baxter’s testimony was alleviated when the trial court sustained defendant’s objection, struck the testimony, and instructed the jury to disregard it.

Defendant, after having his motion for a mistrial denied a second time, waived his right to a jury trial, and the trial was completed before the judge only. As the trial court noted, this is a highly unusual procedure. The State, however, has not raised any issue in its appellate brief addressing the merits of defendant’s claim that the trial court’s denial of a mistrial under the circumstances here prevented defendant from having a jury trial. It is nevertheless arguable that defendant waived a jury and no act of the court prevented the defendant from having a jury trial. (Cf. People v. Brownell (1980), 79 Ill. 2d 508, 522, 404 N.E.2d 181.) Obviously, defendant’s waiver of a jury trial would obviate any argument he might have on appeal based solely on the erroneous denial of the mistrial for failure to disclose defendant’s statement to Officer Baxter, as there would be no prejudice from that statement in a bench trial where the trial court excluded the statement from evidence. Since the State does not challenge the foundation on which defendant premises the issue on appeal, we shall not resolve this question on a basis not briefed by either party and will only determine whether, under the circumstances in this record, the trial court’s actions in admonishing the jury to disregard the evidence adequately eliminated any prejudice such that defendant was not compelled to waive his right to a jury trial to avoid a speculative, prejudiced jury’s verdict of guilty against him.

Supreme Court Rule 415 (107 Ill. 2d R. 415) provides several sanctions for the violation of a discovery rule. (People v. Morgan (1986), 112 Ill. 2d 111, 135, 492 N.E.2d 1303.) A trial court may order disclosure of the material, grant a continuance, exclude the evidence, or enter such order as seems just under the circumstances. (107 Ill. 2d R. 415(g); Morgan, 112 Ill. 2d at 135, 492 N.E.2d at 1312.) Declaring a mistrial is a drastic sanction, and the court can, by sustaining an objection and instructing the jury to disregard an improper remark, usually correct any error. (Morgan, 112 Ill. 2d at 135, 492 N.E.2d at 1312; see also People v. Miller (1983), 96 Ill. 2d 385, 395, 450 N.E.2d 322.) The correct sanction to be applied is left to the trial court’s discretion, and the judgment of the trial court is given great weight. Morgan, 112 Ill. 2d at 135, 492 N.E.2d at 1312.

Whether a new trial is warranted by the discovery violation depends on several factors. (Morgan, 112 Ill. 2d at 135, 492 N.E.2d at 1312.) The closeness of the evidence, the strength of the undisclosed evidence, the likelihood that prior notice could have helped the defense discredit the evidence, the feasibility of a continuance, and the willfulness of the State’s failure to disclose are all factors which must be considered in deciding what discovery sanction to impose. People v. Weaver (1982), 92 Ill. 2d 545, 560, 442 N.E.2d 255.

Although the evidence in this case was not overwhelming as to defendant’s guilt, it was not so close as to require the granting of defendant’s motion for mistrial. The evidence establishes that defendant was chased by Barrera, that a shot was fired, and that Barrera was struck by a bullet during the chase. Although defendant and his witnesses testified that he did not shoot Barrera, their testimony that the shot came from the right of Barrera and defendant is inconsistent with the treating doctor’s testimony that the bullet entered Barrera’s scrotum from the front and there were no other bullet wounds. Barrera, on the other hand, testified that defendant turned and shot him as he was chasing defendant. We note, too, that the undisclosed statement does not strengthen the State’s case as it was unrelated to the events surrounding the shooting.

Furthermore, there is no evidence that the State wilfully failed to disclose the statement to defendant. According to the stipulation of the assistant State’s Attorney, she found out about the statement only one hour prior to Baxter testifying and simply forgot to advise defendant. There is no evidence that she intentionally withheld the statement. Although a witness testified in post-trial proceedings that Baxter stated after leaving court that he got it in, we do not find that to be evidence that the prosecutor herself intentionally elicited the statement.

We also believe that it is necessary, in determining what degree of prejudice, if any, defendant suffered as a result of the State’s failure to disclose defendant’s statement to Baxter, to consider whether the statement was admissible or inadmissible. If the statement was inadmissible, the prejudice suffered by defendant in being precluded the opportunity to keep the evidence out would necessarily be greater than if the evidence was admissible and would have otherwise been presented to the jury absent the discovery violation.

At oral argument, defendant maintained that the statement at issue was inadmissible because its probative value was outweighed by its prejudicial impact. The statement that defendant would have shot Baxter if he had the chance is prejudicial as it shows a violent propensity on the part of defendant as well as a willingness to resist police authority.

On the other hand, the statement is not relevant to the issue of defendant’s guilt. The statement by itself does not show any consciousness of guilt, as urged by the State. Accordingly, there is no proper basis for admission of the statement in this case.

Additionally, prior notice of the statement would likely have helped defendant discredit the evidence. Defendant could have moved in limine to keep the inadmissible evidence out or, at the very least, could have anticipated its introduction and entered a timely objection.

Nevertheless, when we consider all of the factors relevant to the question of what prejudice defendant suffered as a result of the State’s failure to disclose the statement, we do not consider the denial of a mistrial to be an abuse of discretion under these' circumstances, particularly where the trial court promptly and thoroughly instructed the jury to disregard the statement.

We next address defendant’s conténtion that the trial judge misapplied the law in finding him guilty of attempted murder. The trial judge stated, inter alia:

“Now, as to Count 2, attempt murder, where he’s charged to have performed a substantial step toward the commission of the offense, in that he fired a firearm at Victor Barrera striking him in or about the groin. We know somebody fired a shot, we know it struck him in or about the groin, we know that if anybody fires a weapon at somebody, that there’s a strong possibility of great bodily harm or death, certainly is a substantial step toward the commission of a murder. The only issue here is who fired that shot.”

Defendant argues that this language indicates that the court failed to find that he had the requisite intent to kill, a necessary element of attempted murder.

While we agree with defendant that intent to kill is necessary to establish the offense of attempted murder (see People v. Mitchell (1984), 105 Ill. 2d 1, 9, 473 N.E.2d 1270), we do not interpret the trial judge’s comments to indicate a contrary understanding. The trial judge appears to have commented regarding the factual issue of whether defendant fired the shot. His comments do not explicitly state that he did not make a finding as to whether defendant had the intent to kill Barrera at the time he shot him.

Furthermore, the fact that the trial judge did not specifically mention his finding as to defendant’s intent to kill does not establish that he made no finding in that regard. (Cf. People v. Lerch (1985), 134 Ill. App. 3d 643, 651-52, 480 N.E.2d 1253.) Moreover, the trial judge is presumed to know the law, and such presumption is rebutted only when the record affirmatively shows the contrary. (People v. Smith (1989), 178 Ill. App. 3d 976, 984, 533 N.E.2d 1169; see People v. Gilbert (1977), 68 Ill. 2d 252, 258-59, 369 N.E.2d 849.) Here, there is no affirmative evidence that the trial judge did not make a finding that defendant had the intent to kill. As we are not permitted to draw negative inferences from the record (People v. Roberson (1980), 83 Ill. App. 3d 45, 49, 403 N.E.2d 490), it cannot be said on this record that the trial judge misapplied the law and failed to find that defendant had the intent to kill.

Defendant next contends that the trial judge erred in imposing a fine without considering defendant’s own financial resources and future ability to pay as required by section 5 — 9—1(d)(1) of the Unified Code of Corrections (Ill. Rev. Stat. 1987, ch. 38, par. 1005—9—1(d)(1)). Defendant maintains that the trial judge merely considered that a bail deposit was posted and could be forfeited to satisfy the fine, and because bail was posted by his mother, it does not represent his financial resources or future ability to pay the fine. Defendant does not dispute the proposition that the bail deposit may be used to satisfy a properly imposed fine regardless of who posted bail. However, he maintains that the availability of bond money is not determinative of whether the fine is proper in the first place.

The State responds that the trial court heard evidence of defendant’s financial resources and that the record supports the imposition of a fine. The only evidence the State points to in this respect is testimony that defendant supported his children and that he did not have any debts. The record shows, however, that defendant had been unemployed for two years and lived with his parents and does not show that the support he provided his children was substantial during this period. The State notes that the trial court suggested that defendant might have given his mother the money she used for his bail. There is no support for this supposition. The record must show sufficient facts available to the trial court to determine the issue of imposition of a fine and the amount thereof. (People v. Bergman (1984), 121 Ill. App. 3d 100, 112, 458 N.E.2d 1370.) The $5,000 fine is not supported by the record, and we do not believe the trial court properly considered defendant’s financial resources. Accordingly, the $5,000 fine is vacated, and this cause is remanded for the limited purpose of conducting a hearing to determine defendant’s ability to pay a fine and, if so, the amount of the fine. See People v. Echols (1986), 146 Ill. App. 3d 965, 977-78, 497 N.E.2d 321; People v. Waters (1985), 136 Ill. App. 3d 858, 862, 483 N.E.2d 1061.

For the foregoing reasons, we affirm that part of the judgment of the circuit court of Kane County finding defendant guilty of attempted murder and sentencing him to 10 years’ imprisonment, vacate the fine, and remand. We affirm the separate judgment revoking his probation.

No. 2—88—1105, Affirmed in part; vacated in part and remanded.

No. 2—88—1268, Affirmed.

GEIGER and INGLIS, JJ., concur.


author: JUSTICE INGLIS

text:
    VITO MASOTTI, Plaintiff-Appellant, v. PETER T. CONSOLE et al., Defendants-Appellees.
    Second District
    No. 2—89—0784
    Opinion filed March 29, 1990.

      Richard C. Gleason, of Edmund J. Scanlan, Ltd., of Chicago, for appellant.
    D. Kendall Griffith, Richard W. Sandrok, Stephen R. Swofford, and Robert G. Black, all of Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago, for appellees.
   JUSTICE INGLIS

delivered the opinion of the court:

Plaintiff, Vito Masotti, appeals from an order of the circuit court granting summary judgment for defendants, Peter Console and Ganna Construction Company. Plaintiff raises two issues on appeal: whether Peter, as the driver of a car, owed plaintiff a duty; and whether plaintiffs actions put his injury beyond the scope of that duty.

On November 13, 1987, plaintiff filed a negligence action against defendant Peter Console. Since both parties were minors, the suit was filed by plaintiff’s mother, Anna Masotti, against Anna Console, Peter’s mother. For convenience we refer to the real parties in interest simply as plaintiff and defendant. In the complaint, plaintiff alleged that in July 1986 plaintiff and Peter were in a parking lot, and Peter was the driver of a car in the lot. While the car was parked, plaintiff climbed on the hood of the car. Peter then started the car and accelerated and decelerated while plaintiff was still on the hood. Plaintiff alleged that Peter negligently started the car with plaintiff on it; operated the car at an unreasonable speed; failed to exercise due care to avoid a collision with plaintiff; increased the speed of the car when Peter knew that plaintiff was hanging onto the outside of the car; and applied the brakes while plaintiff was on the hood of the car. Plaintiff allegedly was injured as a result of these acts.

On January 9, 1989, plaintiff filed a second amended complaint adding an additional count naming Ganna Construction Company (Ganna) as party defendant. Plaintiff alleged that defendant Peter was employed by codefendant Ganna and was acting within the scope of his employment with Ganna at the time the alleged acts occurred.

Defendant Peter filed a motion for summary judgment. The motion itself was presented prior to the time the trial court granted plaintiff leave to file a second amended complaint; however, by order, the court allowed the motion to stand as to both defendants. In the motion, it was argued that plaintiff was injured when he engaged in “horseplay” and that under Gould v. Spreitzer (1986), 145 Ill. App. 3d 938, plaintiff could not recover because his injury, was the foreseeable result of the horseplay. According to defendants, plaintiff’s horseplay was the sole proximate cause of his injury and, therefore, defendants were entitled to judgment as a matter of law.

At the hearing on the motion for summary judgment, the parties introduced the deposition testimony of plaintiff, Peter, and three occurrence witnesses. Daniel Gravina, who was 11 years old at the time of the accident, testified that he, plaintiff, Peter and three other boys went rafting behind a shopping center. After they finished rafting, one of the boys, Mike Lombardo, went into the Butera food store to buy a can of pop. Plaintiff, Dan Console (Peter’s brother), and Frank Lombardo (Mike’s brother), went into the K mart to get a drink of water. Peter and Daniel got in the car. Mike came out of Butera, while the other boys were still in K mart, and got into the car. Then, as a joke, Peter started driving the car away while plaintiff, Dan Console, and Frank came running towards it.

Frank reached the car first and while it was still moving, jumped up on the roof and hung onto the open sun roof. Peter stopped the car for a few seconds, and Dan Console and plaintiff caught up with the car. Plaintiff got on the hood of the car, and Dan Console climbed on the trunk. Peter closed the sun roof, so Frank got off the car, and Peter started driving. Daniel was unsure whether the car was completely stopped or was moving very slowly when Frank jumped off. The car then started to accelerate, and Daniel saw Frank and Dan Console standing off to the side. Plaintiff was still hanging onto the hood of the car on the passenger side. Plaintiff was smiling and “goofing off.” Peter slowed and accelerated the car six to seven times, but did not hit the brakes. Peter drove in a straight line at approximately 15 miles per hour. After about two minutes, plaintiff got off; then Peter “slammed” on the brakes, and the car skidded.

Mike Lombardo was 13 years old at the time of the accident. He testified that when he returned to the car from Butera, he helped Peter and Daniel deflate the raft. Then he sat in the front passenger seat. Mike was reading a magazine when he heard the boys jumping on the car. Mike did not see plaintiff get on the car, but he did see plaintiff hanging onto the hood by the rim near the windshield wipers. Mike assumed that Dan Console jumped on the trunk of the car because he heard a bang there. According to Mike, when he heard the bang, the car was moving. Mike estimated that the car was going five miles per hour. Mike also testified that when Peter saw plaintiff on the hood, he stopped the car. Mike did not see plaintiff fall off the car, but he thought plaintiff fell when Peter slammed on the brakes suddenly, and Mike then saw plaintiff on the ground. Mike believed that Peter slammed on the brakes to get plaintiff off the car because plaintiff would not get off.

Frank Lombardo, who was 15 years old at the time of the accident, testified that when they left K mart, defendant Peter and the other boys began hurriedly packing up the rafts when they saw Frank, plaintiff and Dan Console coming. Frank believed that defendant was going to leave without them. The three boys ran to the car. Frank was unsure whether the car was moving when they reached it. Because the doors were locked, Frank jumped onto the side of the car and held onto the sun roof. Dan Console jumped on the trunk, and plaintiff jumped on the hood of the car. Frank thought the car was moving when they jumped on. Frank got off the car when Peter shut the sun roof. Dan Console got off the trunk, but plaintiff remained lying on the hood. Frank testified that plaintiff was showing off by hanging onto the hood of the car, and Frank thought that plaintiff slid off when Peter hit the brakes, but he did not see plaintiff fall. Frank estimated that plaintiff was on the hood of the car for about 10 seconds and the car was moving at approximately five miles per hour.

Plaintiff, who was also 15 years old at the time of the accident, testified that he thought Peter was going to leave without him, Dan Console and Frank. According to plaintiff, the car was not moving when they jumped on it. After he, Frank, and Dan Console jumped on, Peter started the car and began to drive rather fast. Dan Console jumped off the trunk, but plaintiff held onto the rim by the windshield wipers because he did not want to fall off. Plaintiff testified that he did not think Peter would start driving while he was on the hood of the car. Peter then started swerving the car “back and forth,” and plaintiff lost his balance and fell off, landing on his hands and one foot. Peter hit the brakes when plaintiff fell, but the car skidded and ran over his foot. Plaintiff estimated that from the time the car started moving to when he fell off, he had been on the hood for about 10 seconds.

Peter was 16 years old at the time of the accident. He testified that when he saw the boys running toward the car, he started driving it towards the west. Peter wanted the boys to catch up with the car, and they did. He stopped the car before the boys reached it. While it was stopped for a few seconds, Frank grabbed onto the sun roof; Dan Console jumped on the trunk, and plaintiff jumped onto the hood of the car. The doors were locked and all the windows were up. Peter believed that his brother slid off the trunk while the car was stationary because the trunk was slanted. Peter told Frank to get off the car or he would close the sun roof. When Peter closed the sun roof, Frank got off the car. Plaintiff was still on the hood when Peter began to drive. Peter’s testimony was contradictory concerning whether he turned the car around to the east while plaintiff was on the hood, or whether he turned the car around before the boys reached it. In either case, Peter testified that the car was stopped when the boys got on it, and he had it in park. Peter stated that he did not turn the car while plaintiff was on it. Peter estimated that he was driving between 5 and 10 miles per hour when plaintiff was hanging onto the hood. Peter believed that plaintiff jumped off the car. As soon as plaintiff got off, Peter hit the brakes, but the car skidded on gravel for about five feet.

The trial court, in its memorandum opinion, quoted plaintiff’s deposition testimony in which plaintiff stated that he “jumped on top of the hood of the car,” then fell off and his foot was run over, despite defendant hitting the brakes. The court stated:

“The threshold question in a negligence action is whether there is a duty of care owed by defendant to plaintiff. *** The existence and scope of a duty is an issue of law that must be decided by the court. Under the facts of this case, the relationship that existed between plaintiff and defendant and the conduct of the plaintiff raise[d] no duty upon defendant toward plaintiff.”

The court accordingly entered summary judgment for defendants. Plaintiff filed a motion to reconsider the order of summary judgment, which the court denied. Plaintiff then filed this appeal.

Plaintiff contends that the trial court erred in entering summary judgment based on its conclusion that Peter did not owe plaintiff a duty. Summary judgment is appropriate only if the pleadings, depositions, admissions on file, and affidavits show that there are no genuine issues of material fact. (Ill. Rev. Stat. 1987, ch. 110, par. 2—1005(c).) When determining whether to grant summary judgment, the court must construe the pleadings, depositions and affidavits strictly against the moving party. (Rowe v. State Bank (1988), 125 Ill. 2d 203, 214.) In addition, the court must draw all reasonable inferences in favor of the opponent of the motion. (Knief v. Sotos (1989), 181 Ill. App. 3d 959, 963.) Summary judgment is a drastic remedy which should be granted only when the right of the moving party is free from doubt. Purtill v. Hess (1986), 111 Ill. 2d 229, 240.

Plaintiff argues that drivers of vehicles owe a common-law duty of reasonable care to pedestrians. (See W. Prosser, Torts §53, at 326 (4th ed. 1971).) Plaintiff also refers to the sections of the Illinois Vehicle Code (Code) as establishing duties of drivers. In particular, plaintiff cites section 11 — 803 of the Code, which requires that a driver not start a vehicle unless it is safe to do so (Ill. Rev. Stat. 1987, ch. 95½, par. 11—803); section 11 — 1003.1, which imposes a duty to exercise due care to avoid hitting pedestrians (Ill. Rev. Stat. 1987, ch. 95½, par. 11—1003.1); and section 11 — 601(a), which provides that drivers must not drive at a speed which endangers the safety of others (Ill. Rev. Stat. 1987, ch. 95½, par. 11—601(a)). Defendant argues that the last of these sections is inapplicable because there was no evidence of unreasonable speed. While the deposition testimony indicates that Peter was driving between 5 and 10 miles per hour, this is not dispositive of whether defendant Peter’s speed was reasonable. Figarelli v. Ihde (1976), 39 Ill. App. 3d 1023, 1028 (a person can be driving under the speed limit and still be driving too fast for conditions).

As for the other two cited sections, defendants argue that they are inapplicable because the accident occurred in a parking lot and not on the highway and because plaintiff was not a pedestrian. While the statute may be directed toward those driving on the highways, we see no reason why a driver’s duty of reasonable care should dissolve upon entering a parking lot. In addition, defendants have cited no authority for the proposition that plaintiff was not a pedestrian, and defendants fail to explain why he should not be considered as such.

Defendants argue that Peter did not owe plaintiff a duty because Peter could not have reasonably foreseen that plaintiff would jump on the car while it was moving. This argument is flawed in two respects. First, it assumes that the car was moving when plaintiff jumped on it. Yet Peter, in his deposition testimony, admitted that the car was stopped when the boys jumped on it and that he started to drive with plaintiff on the hood. Second, this argument is based on the assumption that foreseeability is the most important element in determining whether there was a duty. However, we have held that “the imposition and scope of a legal duty is dependent not only on the factor of foreseeability but includes consideration of the likelihood of injury, the magnitude of the burden of guarding against it, and the consequences of placing that burden upon the defendant.” Duncan v. Rzonca (1985), 133 Ill. App. 3d 184, 192.

Further, the injury in this case was not, as defendants argue, totally unforeseeable. Teenagers frequently engage in horseplay in and around vehicles, jumping on the trunk or sitting on the hood of ears. Peter started the horseplay by pretending to drive off without the other boys, then waited for them to catch up to the car but had the doors locked and the windows up. Even if we assume that the car was moving when plaintiff jumped on it, defendant Peter could have foreseen that plaintiff would do so when Peter slowed the car. Moreover, if we believe plaintiff’s version of the events, that the car was stopped when plaintiff jumped on and Peter began to drive after plaintiff was on the car, it is certainly foreseeable that plaintiff could fall off the car and sustain injuries if Peter moved the car.

Defendants argue that they are entitled to summary judgment because plaintiff’s act of jumping on the car was the sole proximate cause of his injury, citing Gould v. Spreitzer (1986), 145 Ill. App. 3d 938. In Gould, the plaintiff and a friend rode in the bed of the defendant’s truck while the defendant and another boy rode in the cab. On the way to pick up another friend, the plaintiff began slapping or banging on the roof and side windows of the truck. The defendant responded to this “horsing around” by quickly turning the wheel of the truck back and forth several times. The plaintiff then fell from the truck and was injured. At the close of all the evidence, the plaintiff moved for a directed verdict, which the trial court denied. The case was submitted to the jury, and a verdict for the defendant was returned. The court denied the plaintiff’s post-trial motions, and he appealed. Gould, 145 Ill. App. 3d at 939.

On appeal, we affirmed the trial court’s finding that the jury’s verdict for the defendant was supported by evidence that plaintiff’s own negligent conduct was the proximate cause of his injury. (Gould, 145 Ill. App. 3d at 941.) We explained:

“It was foreseeable, even considering plaintiff’s young age [15], that the initiating of ‘horseplay’ with the defendant [age 17] might provoke some reaction by the latter. It was certainly foreseeable to plaintiff that standing in the bed of a moving truck without attempting to secure himself by holding onto some part of the truck might result in his being thrown off if the truck veered sharply for some reason.” Gould, 145 Ill. App. 3d at 940.

Gould was an appeal after a jury’s verdict, and the present appeal is from a summary judgment. The jury in Gould decided the issues of fact whereas, here, we must determine whether there are any issues of fact for the trier of fact to decide.

Unless the plaintiff fails to present any facts to support the assertion that the defendant proximately caused the plaintiff’s injury (see Carter v. Dunlop (1985), 138 Ill. App. 3d 58, 69), the determination of proximate cause is a factual question which is decided by the trier of fact (Scott & Fetzer Co. v. Montgomery Ward & Co. (1986), 112 Ill. 2d 378, 393). Proximate cause is essentially a question of foreseeability: a negligent act is a proximate cause of an injury if the injury is of a type which a reasonable man would see as a likely result of his conduct. (Gould, 145 Ill. App. 3d at 940.) Thus, an injury will be found not to be within the scope of the defendant’s duty if it appears “highly extraordinary” that the breach of the duty should have caused the particular injury. (Restatement (Second) of Torts §435 (1965).) The question then becomes whether the duty imposed was designed to protect that plaintiff from that particular injury. (Restatement (Second) of Torts §435, comment c, at 452 (1965).) If so, the injury is within the scope of the duty.

As discussed previously, the injury here was not so highly extraordinary that it should not be within the scope of Peter’s duty to plaintiff. Peter’s duty to operate his vehicle safely was designed to protect others from collision or injury because of his driving. Plaintiff’s foot was run over after he fell from the moving car. Peter’s duty was designed to protect plaintiff from being hit, run over, or otherwise injured as a result of Peter’s operation of the vehicle.

Defendants next argue that plaintiff’s act of jumping on the car “removed any duty” from Peter. What defendants apparently are arguing is that since plaintiff was negligent, he cannot recover from defendants. If Illinois still adhered to the theory of contributory negligence, defendants would be correct. However, our supreme court in Alvis v. Ribar (1981), 85 Ill. 2d 1, discarded the theory of contributory negligence and adopted the theory of comparative negligence. Thus, if plaintiff’s conduct was negligent, the trier of fact will determine what percentage of fault, if any, is attributable to plaintiff and reduce the award accordingly. See Diaz v. Chicago Transit Authority (1988), 174 Ill. App. 3d 396, 400.

The question of recovery and damages is, of course, dependent on a finding that Peter breached his duty to plaintiff and that breach was the cause in fact of plaintiff’s injury. Such questions are matters for the trier of fact to determine. (Kaplan v. Berger (1989), 184 Ill. App. 3d 224, 233.) The testimony conflicted on the issue of whether the car was stationary or moving when plaintiff jumped on it. In addition, whether Peter deliberately slowed and accelerated the car to get plaintiff off the hood is also in dispute. These issues of fact relate directly to the determination of whether Peter breached his duty and whether plaintiff was negligent. We therefore conclude that the trial court erred in entering summary judgment for defendants.

The judgment of the circuit court is reversed, and the cause is remanded.

Reversed and remanded.

REINHARD and DUNN, JJ., concur.


text:
    TIN CUP PASS LIMITED PARTNERSHIP, Plaintiff-Appellant, v. PAT DANIELS et al., Defendants-Appellees (Pat Daniels et al., d/b/a The Lodge at Tin Cup Pass and d/b/a D&M, Inc., Defendants).
    Second District
    No. 2—89—0752
    Opinion filed March 29, 1990.

      Jerome Marvin Kaplan and Marc K. Schwartz, both of Batler & Schwartz, of Buffalo Grove, for appellant.
    Richard G. Larsen, of Myler, Ruddy & McTavish, of Aurora, for appellees.
   JUSTICE REINHARD

delivered the opinion of the court:

Plaintiff, Tin Cup Pass, Ltd. (Tin Cup Pass), appeals from an order of the circuit court of Kane County vacating a portion of a prior order assessing liability against defendants, Pat Daniels and William Mandell, individually for past-due rent and expenses under a written lease.

Plaintiff raises three issues on appeal: (1) whether defendants are personally liable under section 3.20 of the Business Corporation Act of 1983 (Ill. Rev. Stat. 1987, ch. 32, par. 3.20), which imposes personal liability on those who assume to exercise corporate powers without the authority to do so; (2) whether plaintiff is estopped from asserting liability against defendants as individuals; and (3) whether defendants demonstrated a bona fide attempt to incorporate thereby creating a defacto corporation.

The facts of this case are not in dispute. In their memorandum of law to the trial court on the issue of personal liability, defendants stated that the parties agreed to the facts in this case. Further, plaintiff’s reply memorandum does not dispute the factual portion of defendant’s memorandum. We further note that the parties do not disagree as to the facts on appeal.

Defendants’ memorandum states that in December 1986 Pat Daniels, John Daniels and William Mandell began negotiations to purchase a tavern and restaurant business in St. Charles, Illinois. Pat Daniels was to provide the capital for the venture, and John Daniels was to be the general manager of the business. The landlord of the premises was a land trust, with the Howard Realty Group, Inc. (Howard), plaintiff’s predecessor, as agent for the owner of the land trust. Jeff Howard of Howard and John Daniels negotiated the lease terms.

While the sale of the business and negotiation of the lease were proceeding, neither the seller of the business nor the landlord contemplated personal guarantees from Pat Daniels and William Mandell. Defendants intended to file articles of incorporation under the name “D&M, Inc.” (D&M). Although D&M had not yet been incorporated on January 18, 1987, and the articles of incorporation had not been filed, defendants signed the lease on behalf of D&M as follows:

“Tenant: D&M, Inc.
By:_IS/_
President Pat Daniels
By:_IS/_
Secretary Bill Mandell”

Jeff Howard knew that D&M had not yet been incorporated when they signed the lease. Defendant Mandell never became involved in the business and merely signed at the request of Jeff Howard.

On February 11, 1987, defendants’ attorney filed the articles of incorporation for D&M with the Secretary of State. An initial investigation by defendants’ attorney indicated that there was not another Illinois corporation with a name similar to D&M which would prevent incorporation under that name. However, the Secretary of State’s office returned the articles of incorporation because the name “D&M, Inc.,” was already in use by another Illinois corporation. Immediately thereafter new articles of incorporation were filed under the name of The Lodge at Tin Cup Pass, Inc. (Lodge). Defendants checked with the landlord to see if they could use that name because it is similar to the name of the property, Tin Cup Pass. The Lodge was duly incorporated on March 5, 1987. Although defendants had taken possession of the property on February 17, 1987, they did not open for business until after the Lodge was incorporated. In August 1987, Howard assigned the lease to plaintiff.

On December 6, 1988, plaintiff filed the instant complaint against the defendants, d/b/a The Lodge at Tin Cup Pass and d/b/a D&M, Inc., alleging that defendants failed to pay $12,389.48 in rent. Plaintiff subsequently amended its complaint to include a count for forcible entry and detainer. It later sought an addendum in the amount of $35,518.89, which was granted. On May 10, 1989, the court entered an agreed order assessing liability in the amount of $35,515.89 against the Lodge and D&M, and against defendants individually. The agreed order further stayed execution of the judgment against defendants until the court could determine whether they were personally liable.

In their written memorandum of law, defendants argued that they should not be held personally liable because they were unaware of defects in the articles of incorporation for D&M; plaintiff should be estopped from denying the corporation’s existence when Howard knew that D&M had not been incorporated when the lease was signed; and as defendants made a good-faith effort to incorporate, they were acting as agents of a de facto corporation. Plaintiff argued that defendants were personally liable because the D&M corporation was never formed and defendants signed the lease. Plaintiff also argued that it was not estopped to deny the existence of the corporation and that defendants never made a good-faith effort to incorporate. Although the reasons for the decision are not contained in the record, the trial court found that defendants were not personally liable for the debt and vacated the judgments against them.

On appeal, plaintiff contends that the trial court erred in vacating the judgments against defendants as individuals. In support of this contention, plaintiff cites section 3.20 of the Business Corporation Act (Act), which states:

“All persons who assume to exercise corporate powers without authority so to do [sic] shall be jointly and severally liable for all debts and liabilities incurred or arising as a result thereof.” (Ill. Rev. Stat. 1987, ch. 32, par. 3.20.)

Plaintiff argues that the plain language of the statute clearly imposes personal liability on those who assume to exercise corporate powers. According to plaintiff, because D&M was never incorporated, defendants acted without authority when they signed the lease and should therefore be held personally liable for the debts incurred as a result of the lease.

Our supreme court has held that the previous version of section 3.2 renders an individual who conducts the ordinary affairs of a business in the name of a nonexistent corporation personally liable on a contract made in connection with the business. (H.F. Philipsborn & Co. v. Suson (1974), 59 Ill. 2d 465, 470, 322 N.E.2d 45.) However, whether personal liability will be imposed upon a promoter who makes a contract for the benefit of a proposed corporation depends upon the intent of the parties. (Suson, 59 Ill. 2d at 470-71, 322 N.E.2d at 49.) A promoter of a corporation is one who actively assists in creating, projecting and organizing a corporation. Geving v. Fitzpatrick (1978), 56 Ill. App. 3d 206, 209, 371 N.E.2d 1228; see Stap v. Chicago Aces Tennis Team, Inc. (1978), 63 Ill. App. 3d 23, 26, 379 N.E.2d 1298.

It is clear that defendants were promoters of the corporation. There can be no doubt that they were involved in the creation and organization of the corporation. Consequently, as they entered into the lease with plaintiff as promoters, we must look to the intent of the parties in determining whether defendants are to be held individually liable under the lease.

The parties agree that Jeff Howard, who signed the lease on behalf of plaintiff’s predecessor, knew that a corporation was to be formed, albeit under the name of D&M, Inc., and not the Lodge at Tin Cup Pass, Inc., the corporation’s ultimate name. The lease itself names D&M, Inc., as the lessee, and defendants signed in their capacities as corporate officers and not as individuals. No individual guarantees were sought by the lessor. It was clearly the intent of the parties to the lease to create a lease with a corporation as the lessee.

While it is true that the corporation was not ultimately named D&M, Inc., as stated in the lease, such a minor discrepancy does not affect our determination that the parties intended to make the proposed corporation the lessee. There is no evidence that the corporate entity contemplated by the parties changed in any significant respect other than its name. As such, we find the fact that the corporation was eventually incorporated under a name other than that identified in the lease to be of no significant consequence in this case.

We are further persuaded that the parties intended to create a lease agreement with the corporation as the lessee as plaintiff subsequently treated the lease as though the corporation, the Lodge, was the lessee. Furthermore, the corporation ratified the lease by recognizing and treating it as valid. (See Suson, 59 Ill. 2d at 472, 322 N.E.2d at 49.) The actions of the parties rendered the lease as valid as if the requisite corporate authority had existed when it was entered into. As our resolution on this basis is dispositive of the case, we need not examine the remaining issues addressed by the parties.

For these reasons, we affirm the judgment of the circuit court of Kane County.

Affirmed.

INGLIS and GEIGER, JJ., concur.