author: JUSTICE GEIGER PRESIDING JUSTICE REINHARD,

text:
    LAURIE BURGHARDT, Plaintiff-Appellant, v. CLIFF REMIYAC et al., Defendants-Appellees.
    Second District
    No. 2—89—1115
    Opinion filed January 18, 1991.

      REINHARD, P.J., specially concurring.
    G. Williams Richards and George G. Weber, both of Law Office of G. Williams Richards, of Aurora, for appellant.
    E. Jude Duffy III, Robert G. Black, and Thomas A. Brabec, all of Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Lisle, and Daniel M. Purdom and Stephen R. Swofford, both of Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago, for appellees.
   JUSTICE GEIGER

delivered the opinion of the court:

The plaintiff, Laurie Burghardt, appeals from the trial court’s order in her action for malicious prosecution granting summary judgment to the defendants, Cliff Remiyac, Gwen MacPhail, and Swanson True Value Hardware (Swanson). The sole issue that the plaintiff raises in this appeal is whether a nolle prosequi dismissal of the underlying criminal action can support the action for malicious prosecution. The defendants argue that the trial court should be affirmed, regardless of the resolution of the issue raised by the plaintiff, because there clearly was probable cause to support the criminal charges.

On September 17, 1986, Remiyac, Swanson’s office manager, accused the plaintiff, a Swanson employee, of falsifying refund slips to steal money from Swanson. On October 3, 1986, Remiyac signed and verified a criminal complaint. The plaintiff was subsequently arrested.

On February 19, 1987, MacPhail testified at the preliminary hearing on the criminal charge against the plaintiff. After the hearing, the court found that probable cause existed to charge the plaintiff with theft. On September 24, 1987, the case was dismissed upon the State’s motion to nol-pros; the order stated, “m/s — nolle pros/insufficient evidence to convict.”

The plaintiff filed a two-count complaint against the defendants alleging false imprisonment and malicious prosecution arising out of the facts surrounding the criminal charge. The defendants brought a motion for summary judgment as to both counts which was granted by the trial court. The false imprisonment count is not at issue in this appeal.

In their motion for summary judgment, the defendants argued that the plaintiff could not prove a prima facie case on two of the five elements necessary to prove malicious prosecution, i.e., want of probable cause to institute the criminal proceedings and a bona fide termination of the proceedings in the plaintiff’s favor. Although the trial court granted the defendants’ motion, the record included no specific findings as to the basis for the court’s ruling. The plaintiff brought a motion for reconsideration which the trial court denied. When questioned as to the basis for his ruling, the trial judge stated, “I don’t believe that a nolle prosse is an acquittal or finding of innocence as to a named criminal defendant.” The plaintiff brought this appeal.

The first issue presented to this court is whether the plaintiff’s showing that the underlying criminal proceedings were dismissed by a nolle prosequi order was sufficient to raise a question of fact as to the required element of a termination of the proceeding in favor of the plaintiff.

To state a cause of action for malicious prosecution, the plaintiff must allege facts showing (1) the commencement or continuance of a criminal or civil judicial proceeding by the defendant; (2) a termination of that proceeding in favor of the plaintiff, (3) the absence of probable cause for the proceeding; (4) the presence of malice; and (5) damages to the plaintiff resulting from the commencement or continuance of that proceeding. (Joiner v. Benton Community Bank (1980), 82 Ill. 2d 40, 45.) While the plaintiff in a malicious prosecution case must allege facts which show that the underlying judicial proceeding was terminated in his favor, where the underlying proceeding was criminal in nature, it is not essential that there have been a trial and verdict of acquittal upon the charge involved. (Rich v. Baldwin (1985), 133 Ill. App. 3d 712, 714.) Rather, the underlying criminal proceeding must have been terminated in a manner indicative of the innocence of the accused. Joiner, 82 Ill. 2d at 45; Rich, 133 Ill. App. 3d at 714.

We note that plaintiffs have been permitted to maintain actions for malicious prosecution where the underlying criminal proceedings did not reach an acquittal on the merits. See Gilbert v. Emmons (1866), 42 Ill. 143, 146-47 (dismissal of underlying criminal charge upon failure of the grand jury to return a true bill); Rich, 133 Ill. App. 3d at 719 (dismissal of underlying criminal charge on speedy-trial grounds); Reell v. Petritz (1922), 224 Ill. App. 65, 76 (dismissal of underlying criminal charge on the motion of the prosecutor); Farris v. Messimore (1920), 219 Ill. App. 582, 587 (dismissal of underlying criminal charge by justice of the peace upon failure of the complaining witness to appear).

In the case of Hess v. Missouri Pacific R.R. Co. (S.D. Ill. 1987), 657 F. Supp. 1066, the Federal court, interpreting Illinois law, held that a nolle prosequi termination of prosecution is a bona fide termination in the plaintiffs favor; it also held that the only exception to this rule is where the prosecution files the nolle prosequi motion as a compromise to benefit the accused. (657 F. Supp. at 1068; see also Restatement (Second) of Torts §§659(c), 660(a) (1977).) We adopt the holding in Hess and find that the trial court erred in finding that the nolle prosequi order could not prove that the plaintiff’s underlying criminal case had terminated in her favor.

The defendants argue that, even if the plaintiff was correct that the underlying criminal proceeding had terminated in her favor, summary judgment must be affirmed here, where the plaintiff has not argued in her appeal that the defendants lacked probable cause for their actions. They also argue that summary judgment was appropriate merely because nothing of record evidences a lack of probable cause. They find support for their latter argument in the fact that, at the preliminary hearing on the plaintiff’s criminal charge, the court found that the State had probable cause to charge the plaintiff with theft.

Probable cause has been defined as a state of facts that would lead a man of ordinary caution and prudence to believe, or to entertain an honest and strong suspicion, that the person arrested committed the offense charged. (See Mack v. First Security Bank (1987), 158 Ill. App. 3d 497, 502.) It is the state of mind of the one commencing the prosecution, and not the actual facts of the case or the guilt or innocence of the accused, which is at issue. (See Robinson v. Econ-O-Corporation, Inc. (1978), 62 Ill. App. 3d 958, 960.) The existence of probable cause is a complete defense to a malicious prosecution cause of action. Shaw-Stabler v. Tilgner (1988), 173 Ill. App. 3d 843, 846.

An arrest under a judicially issued arrest warrant cannot give rise to a false imprisonment claim. (Weimann v. County of Kane (1986), 150 Ill. App. 3d 962, 968.) However, under a 1918 Illinois Supreme Court decision, a criminal court’s preliminary hearing finding of probable cause is not determinative on the question of whether there existed a probable cause defense to support summary judgment for a malicious prosecution defendant. Lyons v. Kanter (1918), 285 Ill. 336, 341; see also Restatement (Second) of Torts §663(2) (1977).

Summary judgment is appropriate only when the pleadings, depositions, admissions on file, and affidavits present no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1005(c).) Furthermore, in determining whether the moving party is entitled to summary judgment, the court must construe the pleadings, depositions, admissions and affidavits strictly against the movant. (In re Estate of Whittington (1985), 107 Ill. 2d 169, 177.) Where a movant for summary judgment supports his motion with evidence, such evidence is taken as true if the respondent offers no counterevidentiary material. See Fooden v. Board of Governors of State Colleges & Universities (1971), 48 Ill. 2d 580, 587.

We choose not to rely on the waiver analysis suggested by the defendants’ first argument on this issue. However, we examine the defendants’ second argument on the merits. Although the defendants misplace reliance on the court’s preliminary hearing finding of probable cause, we agree with their conclusion that nothing of record defeats their demonstration of probable cause.

According to the transcript of the preliminary hearing on the plaintiff’s criminal charge, filed as an attachment to the plaintiff’s memorandum in opposition to the defendants’ motion for summary judgment, prior to seeking criminal charges against the plaintiff, the defendants systematically reviewed suspicious Swanson customer refund receipts from a SW-month period. As a result of that review, they found that during the period that she was employed at Swanson, the plaintiff had been working at each of the times one of the suspicious receipts was made. Apparently she was the only employee for whom that was true. As a follow-up, the defendants checked with one of the customers named on a suspicious refund receipt; he told them that on the day noted on the receipt, he had been at Swanson and made a purchase, but he had not returned any merchandise. Additionally, the defendants had asked all current store employees, apparently all employees during the relevant period except the plaintiff and one man, whether they had signed the questioned refund receipts; all had denied signing.

In her memorandum opposing summary judgment, the plaintiff disputed the defendants’ allegation of no probable cause merely by stating: “[A]n examination of the transcript of [the preliminary] hearing does not reveal any connection between the alleged shortage and any criminal act with which the [plaintiff] was charged.” However, that mere conclusory assertion does not raise a question of fact. See Kaminski v. Missionary Sisters of the Sacred Heart (1965), 62 Ill. App. 2d 216, 219-20; 107 Ill. 2d R. 191.

Considering this record, we find that the defendants were entitled to summary judgment as a matter of law. Even construing the proper materials to favor the plaintiff, this record can lead only to the conclusion that the defendants’ action of signing a theft complaint against the plaintiff was based upon facts that would lead a man of ordinary caution and prudence to believe or to entertain an honest and strong suspicion that the plaintiff had committed the offense of theft. Our review of the record reveals only a conclusory response by the plaintiff to the evidence in the record showing probable cause, and, thus, no question of fact on probable cause exists. Therefore, summary judgment would have been proper on this issue. Since we can affirm the trial court for any reason supported in the record (see B.T. Explorations, Inc. v. Stanley (1989), 187 Ill. App. 3d 23, 25), we affirm the trial court's grant of summary judgment.

For the foregoing reasons, the decision of the circuit court of Kane County to dismiss the plaintiff’s complaint is affirmed.

Affirmed.

DUNN, J., concurs.

PRESIDING JUSTICE REINHARD,

specially concurring:

I agree with the majority’s opinion insofar as it holds that the nolle prosequi order in the criminal proceedings is not necessarily fatal to a showing of termination of those proceedings in plaintiff’s favor. I further agree that the preliminary hearing finding of probable cause in the underlying criminal proceedings is, at most, evidence of probable cause in the civil proceedings. (Lyons v. Kanter (1918), 285 Ill. 336, 341.) Finally, while I agree with the majority that probable cause was demonstrated here and that defendants were entitled to judgment in their favor as a matter of law, I write separately to set forth what I consider to be the proper analysis of this issue.

Here, both parties submitted to the trial court copies of the transcript of the preliminary hearing in the criminal proceeding in support of their respective positions with regard to the entry of summary judgment. While both parties apparently agreed below upon the underlying factual circumstances as detailed in the transcript, they disagreed as to whether such circumstances were sufficient to establish probable cause as a matter of law. The majority cites the statement made in plaintiff’s memorandum in opposition to the motion for summary judgment that “an examination of the transcript of [the preliminary] hearing does not reveal any connection between the alleged shortage and any criminal act with which the [plaintiff] was charged.” (See 207 Ill. App. 3d at 407.) The majority mistakenly dismisses this statement as a “mere conclusory assertion [which] does not raise a question of fact.” (207 Ill. App. 3d at 407.) This statement was not purported to be a fact, but was advanced as an argument regarding the inferences which could be drawn from the undisputed facts.

Normally, an issue of fact should be determined by the jury and not on summary judgment where reasonable persons could draw different inferences from the facts which are not in dispute. (Pyne v. Witmer (1989), 129 Ill. 2d 351, 358.) The issue of probable cause in an action for malicious prosecution, however, presents a mixed question of law and fact. Whether the circumstances proved to show probable cause are true is a question of fact, but, if true, whether they amount to probable cause is a question of law to be decided by the court. Angelo v. Faul (1877), 85 Ill. 106, 108; Ely v. National Super Markets, Inc. (1986), 149 Ill. App. 3d 752, 758; see also Restatement (Second) of Torts §673 (1977).

Here, there is no dispute presented regarding the facts which purport to show probable cause, so the issue is one of law. I agree with the majority that the undisputed facts presented would lead a man of ordinary caution and prudence to believe, or entertain an honest and strong suspicion, that plaintiff committed the offense charged. (See Freides v. Sani-Mode Manufacturing Co. (1965), 33 Ill. 2d 291, 295-96.) Defendants’ actions showed a careful attempt to determine which of their employees was responsible for the falsified return slips. Accordingly, I agree that the trial court’s entry of summary judgment in favor of defendants should be affirmed, but upon a basis different from that articulated by the trial court.


source: Caselaw Access Project

author: PRESIDING JUSTICE REINHARD

license: Public Domain

text:
    MICHAEL NERI, Plaintiff-Appellee, v. J.I. CASE COMPANY, d/b/a Case Power and Equipment Company, Defendant-Appellant (Des Plaines National Bank, Defendant).
    Second District
    No. 2—90—0525
    Opinion filed January 15, 1991.

      Michelle T. Miller, of Woodridge, for appellant.
    Steven C. Carbon, of Kupisch, Hunt, Carbon & Kaiser, of Bensenville, and Jerome Marvin Kaplan, of Batler & Schwartz, of Buffalo Grove, for appellee.
   PRESIDING JUSTICE REINHARD

delivered the opinion of the court:

Defendant, J.I. Case Co., appeals from a judgment entered in favor of plaintiff, Michael Neri, on a small claims complaint alleging wrongful garnishment. Following a bench trial, the trial court entered judgment in favor of plaintiff in the amount of $6,152.30 for attorney fees and costs: $1,642.80 for defending against an initial garnishment proceeding and $4,509.50 for litigating the small-claims action.

Defendant raises five issues: (1) whether it had a statutory right to garnish under the circumstances; (2) whether plaintiff was prejudiced by defendant’s failure to include the last known address of the judgment debtor; (3) whether plaintiff’s remedy is governed by statute; (4) whether plaintiff has proved wrongful garnishment; and (5) whether plaintiff was properly awarded his attorney fees expended to recover under the wrongful garnishment cause of action.

On April 14, 1987, judgment was entered in a prior action in favor of J.I. Case, defendant herein, against an individual named Michael Neri in the amount of $6,404. The judgment in this first action was and remains unpaid. The same attorneys who represented J.I. Case in the instant action also represented another party plaintiff in a second, unrelated action in which the defendant’s name was also Michael Neri. The attorneys sent a demand letter to a Michael Neri for payment in the second case. In response, that Michael Neri purchased a cashier’s check in the amount of $1,000 payable to the plaintiff in the second case, drawn from the Des Plaines National Bank, and sent it to the attorneys. The attorneys assumed that the Michael Neri in the first action was the same as the Michael Neri in the second action and that he had an account at Des Plaines National Bank. The attorneys then garnished an account belonging to Michael Neri at Des Plaines National Bank. The account garnished was plaintiff’s, and he was not the same Michael Neri who was the party defendant in either of the two cases.

On May 17, 1988, plaintiff’s account was garnished, thereby freezing the $3,240.51 in the account. Plaintiff hired an attorney, August Pilati, to defend this garnishment. On June 17, 1988, defendant’s attorneys determined that the signatures of the two Michael Neris, the correct judgment debtor and the plaintiff, were so dissimilar that the two could not have been from the same person, and they agreed to the entry of an order quashing the garnishment.

On February 16, 1989, plaintiff filed a small claims complaint against defendant for “an unwarranted seizure and garnishment of funds” and against Des Plaines National Bank, now known as Plains-bank, for “unreasonably seizpng] and garnishpng] funds of plaintiff *** without legal justification.”

On March 13, 1990, following a bench trial, the trial court found defendant “guilty of wrongful garnishment under statute and common law standard of care,” entered judgment in favor of plaintiff in the amount of $1,625.30 for his attorney fees and $17.50 for costs expended in the garnishment proceedings and reserved awarding plaintiff his attorney fees for the small claims complaint. The trial court had previously granted Plainsbank’s motion for a directed finding at the close of plaintiff’s evidence. Plaintiff has not appealed from this order. On March 21, 1990, after a hearing on the issues of attorney fees, the trial court entered judgment in favor of plaintiff in the amount of $4,509.50, of which $4,360 was for attorney fees and $149.50 was for costs in the small claims action.

A cause of action for wrongful garnishment exists in Illinois. (Foley Brokerage Co. v. Feldman Brothers Comm’n, Inc. (1947), 330 Ill. App. 372, 375, 71 N.E.2d 354.) No real distinction exists between wrongful garnishment and wrongful attachment. (Gundermann v. Buschner (1897), 73 Ill. App. 180, 184.) It has also been held that a wrongful garnishment can be the basis of a malicious prosecution suit, but all the elements of malicious prosecution must still be alleged for a complaint to state a cause of action. (Kurek v. Kavanagh, Scully, Sudow, White & Frederick (1977), 50 Ill. App. 3d 1033, 1038, 365 N.E.2d 1191.) Therefore, although malicious prosecution based on wrongful garnishment requires that malice and want of probable cause be shown (Gundermann, 73 Ill. App. at 184), such are not required elements for a cause of action for wrongful garnishment or attachment. (See First State Bank v. Clark (1916), 202 Ill. App. 283, 285.) The quashing of the garnishment or attachment establishes that such procedure was wrongful. (See Gale v. Transamerica Corp. (1978), 65 Ill. App. 3d 553, 557, 382 N.E.2d 412.) It has been stated that a garnishment is wrongful when the plaintiff has no cause of action or no indebtedness exists. 6 Am. Jur. 2d Attachment & Garnishment §601 (1963).

We need only briefly discuss defendant’s first three contentions. First, defendant contends that it had a statutory right to garnish plaintiff’s account because it had a valid judgment and believed Des Plaines National Bank had in its control property belonging to the judgment debtor, which is all that section 12 — 701 of the Code of Civil Procedure (the Code) (Ill. Rev. Stat. 1987, ch. 110, par. 12 — 701) requires before filing an affidavit for garnishment. Although defendant may have believed that plaintiff was the judgment debtor and that it possessed a valid judgment against plaintiff, this argument avoids the basic issue of whether defendant had a right to garnish an innocent third party with the same name as the judgment debtor who, in fact, was not the judgment debtor. There is no statutory right to garnish property of one who is not a judgment debtor.

Second, defendant contends that its failure to include the last known address of the judgment debtor, as required by section 12 — 701 of the Code, did not prejudice plaintiff. Plaintiff contends that if the address had been included in the affidavit, Des Plaines National Bank would have known that plaintiff was not the judgment debtor and would, therefore, not have garnished plaintiff’s account. Defendant’s failure to include the last known address of the judgment debtor does not resolve the issue of whether defendant wrongfully garnished plaintiff’s account.

Third, defendant contends that plaintiff has a statutory remedy under section 12 — 710 of the Code which allows any person making a claim on the property garnished to maintain an action as an adverse claimant. Defendant contends that because there is no statutory authority to award attorney fees to such adverse claimants, the trial court erred in granting attorney fees. Although the trial court found that plaintiff had successfully proved wrongful garnishment “under statute and under common law standard of care,” plaintiff argues that its cause of action was based solely on the common law. Thus, even assuming plaintiff falls within the class of persons intended in section 12 — 701, defendant’s contention does not prevent an award of attorney fees under the common-law cause of action of wrongful garnishment. Although defendant is correct that no attorney fees can be awarded for garnishment actions pursuant to the garnishment provisions of section 12 — 701 et seq. of the Code, as contrasted to the statutory provisions for attorney fees for wrongful issuance of wage deductions under section 12 — 817 of the Code, the trial court’s judgment based on both the Code and the common law does not preclude recovery because a reviewing court may affirm on any basis appearing in the record. Kravis v. Smith Marine, Inc. (1975), 60 Ill. 2d 141, 147, 324 N.E.2d 417.

In this case, defendant garnished the wrong person’s account. Plaintiff was an innocent party, and although defendant, as judgment creditor, had a valid judgment against a person named Michael Neri, defendant had no right to garnish plaintiff’s account simply because he had the same name as the judgment debtor. The effect of garnishing the wrong Michael Neri’s account was to deprive plaintiff of the use and enjoyment of his money. (See First State Bank, 202 Ill. App. at 288.) Therefore, plaintiff proved a common-law cause of action for wrongful garnishment.

Defendant attempts to distinguish Foley Brokerage Co. v. Feldman Brothers Comm’n, Inc. (1947), 330 Ill. App. 372, 71 N.E.2d 354 (wrongful garnishment), and Baird v. Liepelt (1965), 62 Ill. App. 2d 154, 210 N.E.2d 1 (wrongful attachment), from this case on the basis that those cases involved attempts to garnish or attach based on void judgments. This distinction is unpersuasive. In both those cases and this case, the defendants had no right to garnish or attach. Basing a garnishment on a void judgment can result in a wrongful garnishment action because the judgment creditor has no right to the property garnished. Similarly, basing a garnishment on a judgment against a person who has the same name can result in a wrongful garnishment action because, again, the judgment creditor has no right to the property garnished. Although defendant has a right to garnish the account of Michael Neri, the judgment debtor, defendant has no right to garnish plaintiff Michael Neri’s account merely because the names are the same.

In its reply brief, defendant contends that, because there was no expert testimony regarding the standard of care, there could be no finding of a deviation of that standard. This contention is waived because defendant failed to argue this in its initial brief and cannot now argue it for the first time in its reply brief. (113 Ill. 2d R 341(e)(7); Village of Crainville v. Argonaut Insurance Co. (1980), 81 Ill. 2d 399, 405, 410 N.E.2d 5.) In any event, no authority is cited for this proposition, and we find it has no merit.

Because plaintiff has successfully proved a cause of action for wrongful garnishment, it must be determined what damages are recoverable. Defendant contends that plaintiff should not be entitled to his attorney fees in the small claims action. Plaintiff contends that attorney fees for both defending against the initial garnishment action and for litigating the small claims action are recoverable.

In a wrongful garnishment action, attorney fees incurred in establishing the right to the funds in question are recoverable as damages. (Foley Brokerage Co., 330 Ill. App. at 375, 71 N.E.2d at 355; Baird, 62 Ill. App. 2d at 156-57, 210 N.E.2d at 2.) The extent of liability for a wrongful garnishment closely parallels the measure of damages for attachment (Foley Brokerage Co., 330 Ill. App. at 375, 71 N.E.2d at 355), and damages may include attorney fees as well as personal expenses incurred in setting aside the attachment. Gale, 65 Ill. App. 3d at 557 n.2, 382 N.E.2d at 415 n.2.

Clearly, the attorney fees of $1,625.30 expended in defending the initial garnishment action and the $17.50 for costs are recoverable. Defendant does not contend otherwise. However, the attorney fees expended in bringing the small claims action are not recoverable because they were not incurred in setting aside the garnishment or establishing a right to the account. Those objectives were accomplished in the initial garnishment proceeding in which the garnishment was quashed. Although plaintiff expended $4,360 in attorney fees in the small claims proceeding, generally, absent a statute or agreement, a successful litigant in a civil action may not recover attorney fees or the ordinary expenses of litigation. Saltiel v. Olsen (1981), 85 Ill. 2d 484, 488, 426 N.E.2d 1204. .

Therefore, the order of the circuit court of • Du Page County awarding attorney fees and costs of $1,642.80 in the garnishment proceeding is affirmed. However, the order awarding $4,360 for attorney fees incurred in the small claims action is reversed.

Affirmed in part; reversed in part.

UNVERZAGT and DUNN, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. STALLIOS KALIVAS, Defendant-Appellee.
    Second District
    No. 2—89—1150
    Opinion filed January 15, 1991.
    James E. Ryan, State’s Attorney, of Wheaton (Barbara A. Preiner, Assistant State’s Attorney, and William L. Browers and Lawrence M. Bauer, both of State’s Attorneys Appellate Prosescutor’s Office, of counsel), for the People.
    Allan J. Marco, of Marco & Stefanos, of Downers Grove, for appellee.
   PRESIDING JUSTICE REINHARD

delivered the opinion of the court:

The State appeals pursuant to Supreme Court Rule 604(a)(1) (107 Ill. 2d R. 604(a)(1)) from an order of the circuit court of Du Page County granting the motion of defendant, Stallios Kalivas, to suppress certain evidence seized during a warrantless search of his car following his arrest for a traffic offense.

Defendant was charged with the offenses of driving while his license was revoked (Ill. Rev. Stat. 1989, ch. 95V2, par. 6 — 303), improper use of a vehicle registration (Ill. Rev. Stat. 1989, ch. 95V2, par. 3 — 703), unlawful possession of less than 15 grams of a controlled substance containing cocaine (Ill. Rev. Stat. 1989, ch. 56V2, par. 1402(b)), and unlawful possession of more than 2.5 but not more than 10 grams of a substance containing cannabis (Ill. Rev. Stat. 1989, ch. SGVa, par. 704(b)). Defendant filed a pretrial motion seeking to suppress the cocaine and cannabis seized pursuant to a search of defendant’s car following his arrest for driving while his license was revoked.

The evidence offered at the hearing on defendant’s motion to suppress established the following. Defendant testified that on July 26, 1989, at approximately 1:40 a.m., he and a passenger were pulled over while driving on Route 59 in Naperville, Illinois, by two officers of the Naperville police department. When defendant was pulled over, he stepped out of the car. Defendant was asked to produce his driver’s license, and he told the officer it was revoked. He was then handcuffed and placed into the backseat of the squad car. Defendant was driving a Buick. He admitted that the license plates on the vehicle were registered for a Ford vehicle, but he had just purchased the Buick and put the plates on until he “transferred them over.” Another officer checked the passenger’s driver’s license. Investigation established that the passenger was wanted on an outstanding warrant. The passenger was arrested and placed in another police car. The two officers then searched defendant’s vehicle.

Officer Thomas Sheehan of the Naperville police department testified that he stopped defendant’s vehicle because the license plate was for a Ford automobile and was on a Buick. When defendant said he did not have a driver’s license, Sheehan checked by radio and learned defendant’s license was revoked. He placed defendant under arrest, handcuffed him, and put him in the backseat of the squad car. Another officer determined that the passenger in defendant’s vehicle was wanted on an outstanding warrant for failing to appear in court on another charge. He was taken into custody and removed from defendant’s vehicle.

Both officers then searched defendant’s vehicle incident to defendant’s arrest. When Officer Sheehan entered the vehicle to begin the search, he observed a plastic bag containing a green leafy substance on the console between the driver’s seat and the passenger’s seat. He believed the substance to be cannabis. Sheehan’s partner went through the cassette tapes on the console. In one of the empty cassette cases the officer discovered a plastic bag containing a white powdery substance which Sheehan believed to be cocaine. The officers seized the items. Sheehan returned to his squad car, read defendant the Miranda warnings, and then talked with defendant about what was found in the car.

The trial court granted the motion to suppress, concluding that (1) the marijuana was not in plain view before the officers entered the vehicle; (2) the officers did not have probable cause to believe there was any drug violation in order to search the car; and (3) the search was not incident to the arrest because defendant had been “disabled” and was no longer in or at the approximate area of the car that was being searched. The State filed a timely notice of appeal and a certificate of impairment.

On appeal, the State contends, as it did in the trial court, that the search was permissible as incident to defendant’s arrest. The State does not raise the issue of whether the marijuana was in plain view. Defendant does not challenge the initial traffic stop or his subsequent arrest on the traffic charges, and they are not at issue. Defendant essentially argues that this was not a valid search incident to an arrest because he was away from the vehicle; he did not have access to weapons nor was he able to interfere with evidence; all of the evidence necessary to prosecute him for the traffic violations had been acquired; and there was no cause to believe he was committing another crime.

It is well settled that a search incident to a lawful arrest is a traditional exception to the warrant requirement of the fourth amendment. (United States v. Robinson (1973), 414 U.S. 218, 224, 38 L. Ed. 2d 427, 434, 94 S. Ct. 467, 471.) The only issue on appeal is the legality of the search of the passenger compartment of defendant’s car incident to defendant’s arrest. The State contends that the case of New York v. Belton (1981), 453 U.S. 454, 69 L. Ed. 2d 768, 101 S. Ct. 2860, controls. In Belton, the Supreme Court held that “when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.” (453 U.S. at 460, 69 L. Ed. 2d at 775, 101 S. Ct. at 2864.) The court expressly included a search of any containers found within the passenger compartment because “if the passenger compartment is within reach of the arrestee, so also will containers in it be within [the arrestee’s] reach.” (453 U.S. at 460, 69 L. Ed. 2d at 775, 101 S. Ct. at 2864.) It is of no importance that the container holds neither a weapon nor evidence of the criminal conduct for which the suspect was arrested. 453 U.S. at 461, 69 L. Ed. 2d at 775,101 S. Ct. at 2864.

Defendant argues that he was handcuffed and in the squad car during the search, and, therefore, nothing in the car was “within his reach” when it was searched, and Belton does not apply. We disagree.

In People v. Loftus (1983), 111 Ill. App. 3d 978, 444 N.E.2d 834, the appellate court, relying on Belton and the respected authority of Professor Wayne LaFave, upheld a search of the defendant’s automobile while he was under arrest, handcuffed, and in the backseat of a squad car as a valid search incident to a lawful arrest. (111 Ill. App. 3d at 983-84, 444 N.E.2d at 838.) The court in Loftus noted that Belton represents an amplification of Chimel v. California (1969), 395 U.S. 752, 23 L. Ed. 2d 685, 89 S. Ct. 2034, in order to establish a straightforward rule for the police in dealing with cases of this variety. (Loftus, 111 Ill. App. 3d at 982, 444 N.E.2d at 837.) As stated by Professor LaFave in concluding the suspect need not be standing in close proximity to the car when the search is conducted, “under Belton, a search of the vehicle is allowed even after the defendant was removed from it, handcuffed, and placed in the squad car.” (3 W. La-Fave, Search & Seizure §7.1(c), at 15 (2d ed.1987).) Similarly, the United States Court of Appeals for the Seventh Circuit has recognized that, under Belton, a search of an automobile incident to a lawful arrest may be validly made without regard to the nature of the offense supporting the arrest and even though the arrestee was both handcuffed and secured in the backseat of a squad car. United States v. Arango (7th Cir. 1989), 879 F.2d 1501, 1505-06.

In the case at bar, defendant was validly under arrest, the search followed immediately after the arrest so as to be deemed contemporaneous with the arrest, and the console and cassette cases searched were within the passenger compartment of the vehicle defendant was driving just before his arrest. This factual situation falls within the rule allowing such a search incident to arrest set forth in Belton and the above-cited authorities.

For the above reasons, we find the circuit court’s order suppressing the evidence to be manifestly erroneous, and we reverse the order and remand for further proceedings.

Reversed and remanded.

UNVERZAGT and DUNN, JJ., concur.


author: JUSTICE McLAREN PRESIDING JUSTICE REINHARD,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. PETER L. LAHR, Defendant-Appellee.
    Second District
    No. 2—89—1233
    Opinion filed January 15, 1991.
    REINHARD, P.J., dissenting.
    Gary V. Johnson, State’s Attorney, of Geneva (William L. Browers and Cynthia N. Schneider, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    No brief filed for appellee.
   JUSTICE McLAREN

delivered the opinion of the court:

The State appeals from the trial court’s granting of defendant’s motion to quash arrest and suppress evidence. We affirm.

We first note that defendant has not filed a brief. We will, therefore, consider this appeal under the guidelines set out in First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128.

Defendant, Peter L. Lahr, was charged with the offense of speeding (Ill. Rev. Stat. 1989, ch. 95V2, par. 11 — 601(b)), based on a radar reading procured by Officer Beyer of the Sleepy Hollow police department. Before trial, defendant filed several motions to strike the complaint and dismiss the charge against him, including a motion which based its prayer for relief on the fact that the offense and the radar surveillance took place in unincorporated Kane County, seven-tenths of a mile outside the boundaries of the Village of Sleepy Hollow. The trial court construed the motion as one to quash arrest and suppress evidence and granted it. In granting the motion, the court found that, because the radar surveillance took place outside the village boundaries, the arresting officer lacked official authority to arrest defendant. The State does not contest this aspect of the court’s ruling. However, the court further found that, by reason of the use of radar surveillance equipment, the officer was acting within his official capacity and not as a private citizen; therefore, the arrest was not legitimized by section 107 — 3 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1989, ch. 38, par. 107 — 3 (arrest by private person)). It is this aspect of the trial court’s order which the State now appeals.

A reviewing court will not disturb a trial court’s decision on a motion to quash arrest and suppress evidence unless that decision is clearly erroneous. (People v. Foskey (1990), 136 Ill. 2d 66, 76.) We conclude that the trial court’s findings of fact were not against the manifest weight of the evidence, nor was its decision manifestly erroneous.

Section 107 — 3 of the Code of Criminal Procedure states:

“Any person may arrest another when he has reasonable grounds to believe that an .offense other than an ordinance violation is being committed.” (Ill. Rev. Stat. 1989, ch. 38, par. 107— 3.)

An extensive line of cases in Illinois has upheld the validity of extraterritorial arrests made by police officers who, lacking official authority, were found to have been authorized to make “citizen’s arrests.” (See, e.g., People v. O’Connor (1988), 167 Ill. App. 3d 42; People v. Gupton (1985), 139 Ill. App. 3d 530; People v. Rowe (1984), 128 Ill. App. 3d 721; People v. Marino (1980), 80 Ill. App. 3d 657.) Such arrests have been upheld even when the officers asserted official authority which they did not in fact possess. (See Marino, 80 Ill. App. 3d at 665; Gupton, 139 Ill. App. 3d at 533.) While the general rules promulgated in these cases are applicable to the case before us, the cases are factually distinguishable and provide only general guidance to us. We consider here whether the method used by the officer to gather information projected the arrest beyond the bounds of a citizen’s arrest and into the arena of official action which was not warranted or permitted in this case.

The closest case factually to the case before us is O’Connor (167 Ill. App. 3d 42). In O’Connor, the police officer conducted a stationary radar surveillance from a position just outside the boundary of his jurisdiction. However, in O’Connor, the road under surveillance was within the officer’s jurisdiction; in the case before us, both the officer’s position and the area under surveillance were outside the officer’s jurisdiction. The O’Connor court held:

“[T]he extraterritorial assertion of authority may be viewed as tainting the use of information gathered. However, the surveillance done here was of a roadway within Officer Taylor’s jurisdiction. The use of radar equipment under such circumstances *** does not, in our opinion, constitute an impermissible assertion of extraterritorial power which could preclude the use of the information gathered.” O’Connor, 167 Ill. App. 3d at 47.

Here, we conclude that the position of the officer outside of his jurisdiction and the use of the radar on a stretch of road outside the jurisdiction combine to constitute an impermissible assertion of extraterritorial power. By using the radar gun to clock defendant’s speed while on duty and in a patrol car, Officer Beyer was acting in his official capacity as a police officer of the Village of Sleepy Hollow. The use of such equipment, in our view, taints the gathering of the information and its later use (see O’Connor, 167 Ill. App. 3d at 47) because the officer used the power of his office to gain access to evidence not available to private citizens. The trial court’s findings, that the use of the radar was an official act by Officer Beyer and that Beyer had no authority to commit that act outside his jurisdiction, were not against the manifest weight of the evidence.

We are unpersuaded by the State’s attempt to read the O’Connor case as supportive of the State’s position. The State argues that Officer Beyer was monitoring a road that passed through his jurisdiction and that, because the area of surveillance was such a short distance from the boundary of that jurisdiction, it is apparent that defendant was also speeding within the jurisdiction. At a minimum, the record contains no information as to where defendant entered the road upon which he was caught speeding; we cannot assume that he even drove through the Village of Sleepy Hollow. Moreover, we cannot assume that, if defendant did drive through Sleepy Hollow, he drove at an illegal speed, or at what speed he drove. Finally, it requires a leap of logic to attempt to equate, as the State does, the surveillance of a road inside the jurisdiction and that of a road that happens to pass through the jurisdiction. Such purported logic would also allow an officer to arrest a motorist speeding the opposite direction down the road into town where, the State would argue, the motorist might continue to speed. Pursued to its logical extreme, the State’s logic would allow a municipality to carry out radar surveillance almost anywhere in the State. While we encourage the prevention of crime in Sleepy Hollow, we cannot condone the projection of Sleepy Hollow’s authority beyond its borders. The fact that the road being monitored passed through the officer’s jurisdiction has no bearing on whether the officer had authority to monitor the road outside his jurisdiction.

We are similarly unpersuaded by the State’s reliance on Gupton (139 Ill. App. 3d 530) and Rowe (128 Ill. App. 3d 721). Both Gupton and Rowe involved extraterritorial arrests for driving under the influence (Ill. Rev. Stat. 1989, ch. 951/2, par. 11 — 501.1) and other traffic violations. The officers in both cases were found to have made the arrests as private citizens despite the fact that blood and urine samples (Gupton) and a breathalyzer test (Rowe) were required of the defendants. The State now argues that the taking of the tests in Gupton and Rowe was more within the province of official police action than is use of a radar device; therefore, if those tests did not transform the arrests in Gupton and Rowe into official acts, neither should the use of radar. This argument ignores the rationale set forth in Gupton and Rowe, a rationale which we find inapplicable to the case before us. In both Gupton and Rowe, the tests were given after the arrests were made; the defendants were arrested based on conduct and other factors (such as the odor of alcohol and slurred speech) that were observed by the police. Once the legitimate arrests were made, the officers could act as law enforcement officers and request the defendants to submit to the tests pursuant to section 11 — 501.1 of the Illinois Vehicle Code (Ill. Rev. Stat. 1989, ch. 95V2, par. 11 — 501.1). Gupton, 139 Ill. App. 3d at 534.

In the case before us, Officer Beyer was acting in his official capacity before he made the arrest. Whereas Officer Beyer used the radar gun to gather evidence before making the arrest, the officers in Gupton and Rowe used the powers of their offices after legitimate arrests had been made. This distinction makes Gupton and Rowe inapplicable to this case.

We conclude that the trial court’s finding that Officer Beyer acted in his official capacity in arresting defendant was not against the manifest weight of the evidence and that the order granting defendant’s motion to quash arrest and suppress evidence was not manifestly erroneous. Therefore, the judgment of the circuit court of Kane County is affirmed.

Affirmed.

GEIGER, J., concurs.

PRESIDING JUSTICE REINHARD,

dissenting:

The majority and I are in agreement that extraterritorial arrests made by police officers who lack official authority to arrest may nonetheless be authorized as a citizen’s arrest pursuant to section 107 — 3 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1989, ch. 38, par. 107 — 3) and that a police officer may assert the authority of his office in effecting such an arrest (People v. Marino (1980), 80 Ill. App. 3d 657, 664). However, I disagree with the majority’s holding that, in the instant case, the officer’s use of a radar gun outside his municipal jurisdiction constitutes an impermissible extraterritorial assertion of authority which thereby “taints the gathering of the information and its later use *** because the officer used the power of his office to gain access to evidence not available to private citizens.” 207 Ill. App. 3d at 421.

The court in People v. O’Connor (1988), 167 Ill. App. 3d 42, generally explored the issue of whether the extraterritorial assertion of authority by a police officer during pre-arrest investigation can invalidate an otherwise lawful citizen’s arrest. In examining this question, the court reviewed the law in two other jurisdictions which abide by the general principle that a police officer cannot effect an extraterritorial citizen’s arrest based on information which was obtained through the extraterritorial assertion of official authority. (O’Connor, 167 Ill. App. 3d at 46-47.) Without defining the overall parameters of the “extraterritorial assertion of authority” doctrine, the court in O’Connor held that, in that case, the use of a radar gun by an officer positioned outside of his jurisdiction to detect speeding by persons inside the jurisdiction was not an impermissible extraterritorial assertion of authority which would invalidate an otherwise lawful citizen’s arrest. O’Connor, 167 Ill. App. 3d at 47.

Because it does not define the general applicability of the “extraterritorial assertion of authority” doctrine, O’Connor does not provide an answer to the precise question presented here: whether a police officer’s extraterritorial use of a radar gun to detect speeders outside of his jurisdiction constitutes an impermissible assertion of authority to gain access to information not available to private persons. However, I believe the answer to this question can be found with reference to the same authority relied upon by the court in O’Connor.

In Phoenix v. State (Fla. 1984), 455 So. 2d 1024, the Florida Supreme Court examined the question of whether there was an improper pre-arrest assertion of investigative authority which would invalidate an otherwise lawful extraterritorial arrest by the police. This concept is referred to in Florida as the “under color of office” doctrine. (Phoenix, 455 So. 2d at 1025.) The court held that the extraterritorial use of police vehicles, including aircraft, to observe the occupants of a vehicle outside of the jurisdiction did not constitute action under color of office. The court noted with approval the district court of appeal’s statement that “[t]he evidence upon which the arrests were based was obtained before confronting any persons [outside the jurisdiction] and without any unlawful assertion of authority vis-a-vis the occupants or a third party.” (Emphasis added.) (Phoenix, 455 So. 2d at 1026.) This is consistent with prior decisions under Florida law holding that the “under color of office” doctrine only applies where an officer actually holds himself out as a police officer or openly asserts his official position in order to observe the unlawful activity. United States v. Ible (5th Cir. 1980), 630 F.2d 389, 393.

I believe that here, as in O’Connor, Phoenix provides a sound basis for decision. The law of Florida is in accord with other jurisdictions in this regard. (See, e.g., United States v. Hernandez (11th Cir. 1983), 715 F.2d 548, 551 (extraterritorial use of ship’s radar held not to invalidate subsequent extraterritorial arrest under Federal common law’s “under color of office” doctrine); State v. Sunford (Mont. 1990), 796 P.2d 1084, 1086 (officer’s extraterritorial use of a radar gun, combined with clearly observable speeding, supported extraterritorial arrest for speeding). See generally Annot., 12 A.L.R.4th 318, 358 — 61 (1982).

The reason for disallowing the extraterritorial assertion of police authority leading to an otherwise valid citizen’s arrest is, in my judgment, to prevent law enforcement officials from obtaining information through the assertion of official authority not available to a private citizen. The use of a radar gun is not the assertion of authority against someone, but only a means to investigate crime. Moreover, the use or possession of a radar gun is not restricted to law enforcement officers as opposed to private citizens.

I perceive the “extraterritorial assertion of authority” doctrine to preclude an officer outside his jurisdiction from asserting the authority of his office in the process of pre-arrest investigation while not requiring him to close his eyes to that which could be observed by a private citizen. For example, it would be impermissible for an officer acting as a private citizen outside of his jurisdiction to assert the authority of his office in order to stop an individual for questioning, to gain access to a private place, or to otherwise exercise other powers available only to law enforcement officials by statute, ordinance, or case law.

I further note that, while the record does not disclose whether the positioning of the radar gun outside of the jurisdiction was accidental or intentional, this fact is irrelevant to the analysis. Extraterritorial investigation without assertion of authority may occur not infrequently in situations where a suspect under surveillance may leave the municipal boundaries. See, e.g., Marino, 80 Ill. App. 3d at 660.

As the only complained-of procedure found improper by the majority was the extraterritorial use of a radar gun, the use or possession of which is not restricted to authorized law enforcement officers, I would not find this to be an impermissible assertion of police authority which would invalidate a lawful citizen’s arrest. Consequently, I would reverse the decision of the circuit court.


author: JUSTICE KNECHT JUSTICE McCULLOUGH,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RYAN HOLLINSHEAD, Defendant-Appellant.
    Fourth District
    No. 4—90—0198
    Opinion filed January 10, 1991.

      McCULLOUGH, J., concurring in part and dissenting in part.
    Daniel D. Yuhas and John J. Hanlon, both of State Appellate Defender’s Office, of Springfield, for appellant.

      Donald M. Cadagin, State’s Attorney, of Springfield (Kenneth R. Boyle, Robert J. Biderman, and Beth McGann, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE KNECHT

delivered the opinion of the court:

After a jury trial, defendant was convicted of burglary, a Class 2 felony (Ill. Rev. Stat. 1989, ch. 38, par. 19 — 1), and was sentenced to three years’ probation with conditions including 100 hours of public service work, a $500 fine, restitution, and 60 days’ incarceration to be served at the end of the probation period, with the possibility of remission. Defendant appeals, arguing the circuit court abused its discretion in ordering a 60-day jail term to be served at the end of the probation period since the record suggests no particular reason, such as employment, family, or educational concerns, to make such a period appropriate here; and the failure to set a specific date for a remission hearing requires vacatur of this condition.

The record shows the probation officer recommended probation with conditions, including 60 days’ incarceration at the end of the probation period with the possibility of remission. At the time of sentencing on March 12, 1990, defendant was attending high school in the morning and working at a grocery store in the afternoon. He anticipated graduating from high school in June. The State argued for 90 days’ incarceration to be served during the summer when the defendant was not in school. The court granted probation and, in enunciating this condition of probation, the judge stated that in the event defendant desired remission of the 60-day jail term, he must file an application with the court between the end of the 32nd and 33rd months of probation, so as to permit a hearing during the month immediately before the 60-day period at the end of the probationary term.

A 60-day term of incarceration is a permissible condition of probation. (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 6—3(b)(1).) While the supreme court has questioned the advisability of imposing such incarceration at or near the end of the probation period absent unusual circumstances or a request by the defendant, it has recognized the authority of the trial judge to impose such a condition. (People v. Tipton (1981), 88 Ill. 2d 256, 262, 430 N.E.2d 1023, 1026.) Educational and employment considerations supported delay in any term of incarceration here, both matters raised generally by defendant at sentencing. Although the trial judge did not state his reasons for imposing this condition of probation, he also ordered as a special condition that defendant finish high school.

This court has held that conditions of probation will not be reversed solely because the circuit court failed to provide an explanation for each, as long as the record does not show a clear abuse of discretion; and the time for seeking explanation is at the sentencing hearing, when the trial judge may be afforded an opportunity to respond. For this reason, a defendant’s failure to seek an explanation for the conditions of probation at the time of sentencing may be deemed to waive the issue for purposes of review. (See People v. Burke (1985), 136 Ill. App. 3d 593, 608, 483 N.E.2d 674, 685 (and cases cited therein).) On the merits, there was no abuse of discretion in imposing the condition.

Defendant next argues neither Burke nor Tipton makes any reference to requiring the defendant to file a motion for a remission. In Burke, this court suggested it is better practice for the trial court to specify a date when it will consider remitting all or part of the detention imposed as a condition of probation. The instruction on remand there— that the trial court set a date certain for a remission hearing — was, however, given as an aside, as the cause vras already being remanded to remedy an erroneous sentence in excess of the statutory maximum. Although not cited by the parties, this court more recently addressed this issue in In re V.L.F. (1988), 174 Ill. App. 3d 930, 938, 529 N.E.2d 312, 317, stating: “While it is not necessary or practical for the trial court to anticipate the exact date so far in advance of a remission hearing, the court should designate a reasonable time frame in which a hearing will be held, rather than placing the burden on the respondent to file a motion to vacate the condition of probation.” (Emphasis added.) We deem V.L.F. controlling.

Additionally, on our examination of the record we found that while the probation order correctly specifies burglary as the underlying offense, the form mittimus documenting judgment and sentence, as filled out, contains several errors in the following passage: “neither the defendant nor defendant’s counsel saying anything further why the Judgment or [sic] the Court should not now be pronounced against the defendant on the PLEA of guilty heretofore entered to the charge of Burglary & Crim Damage Property, as charged in the complaint, information, or indictment returned in this cause on August 10, 1989. THEREFORE, IT IS ORDERED AND ADJUDGED by the Court that the said defendant is guilty of the crime of Burglary.” Defendant was charged on August 10, 1989, by complaint with two counts, one of burglary and one of criminal damage to property. (Ill. Rev. Stat. 1989, ch. 38, pars. 19 — 1, 21 — 1.) On August 24, 1989, defendant and codefendant Craig Piper were charged by information with the offense of burglary, framed in the same language as used in count I of the earlier complaint. On December 27, 1989, the information was amended as to codefendant Piper to allege criminal trespass to a motor vehicle (Ill. Rev. Stat. 1989, ch. 38, par. 21 — 2), and Piper entered a plea of guilty. Thereafter, defendant had a jury trial on the charge of burglary, and the jury returned a verdict of guilty on that charge, on which sentence was imposed. In view of possible confusion which may flow from the errors on the face of the mittimus, and since we are remanding on the issue raised by defendant, on our own motion we recognize these defects as plain error (107 Ill. 2d R. 615(a)). An amended mittimus should be issued showing judgment entered on the verdict of guilty heretofore entered to the charge of burglary (only) as charged in the information returned in this cause on August 24, 1989.

Accordingly, the judgment of the circuit court of Sangamon County is affirmed, and cause remanded with directions to set a time frame for hearing at which remission of the detention will be considered, and for issuance of an amended mittimus.

Affirmed and cause remanded.

STEIGMANN, J., concurs.

JUSTICE McCULLOUGH,

concurring in part and dissenting in part:

I agree the judgment of the circuit court of Sangamon County should be affirmed. I do not agree the cause should be remanded with directions to set a time frame for hearing at which remission of the detention will be considered.

Tipton involved a consolidated case of defendant Tipton and defendant Richardson. With respect to defendant Tipton, he was sentenced to a period of two years' probation subject to several conditions, including that he serve the last 60 days of his probation period in the county jail. No provision was made for a remission hearing. The supreme court indicated in Tipton that he, Tipton, could have asked for a modification as to the jail sentence under the provision of 5 — 6—4(f) of the Unified Code of Corrections (Code) (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 6—4(f)). Nothing in Tipton requires the trial judge to set a specific date for a remission hearing. In V.L.F., referring to Burke, this court stated:

“The instruction on remand, that the trial court set a date certain for a remission hearing, was given as an aside where the cause was already being remanded to remedy an erroneous sentence in excess of the statutory maximum. While it is not necessary or practical for a trial court to anticipate the exact date so far in advance of a remission hearing, the court should designate a reasonable time frame in which a hearing will be held, rather than placing the burden on the respondent to file a motion to vacate the condition of probation.” (V.L.F., 174 Ill. App. 3d at 938, 529 N.E.2d at 317.)

In Burke (136 Ill. App. 3d at 609, 483 N.E.2d at 687), we said “it would be the better practice when such an order is entered *** to specify a date of hearing” in the order of probation. We did not make it mandatory. In Tipton the supreme court stated if the defendant desired to have the probation order modified, he could under the provisions of section 5 — 6—4(f) of the Code file a petition with the court. This is not an onerous burden against the defendant, especially when he is asking for the mercy of the court as to a modification.

Here, the trial court stated:

“I’m going to impose a jail sentence of 60 days at the end of the three-year probation period, subject to review, but I’m going to require that the Defendant, in the event that he desires that that 60 days jail sentence be remitted, file an application with the Court at the end of the — if he — desires to — between the end of the thirty-second month, the end of the thirty-second month of this probation and before the end of the thirty-third month of probation, which will enable a hearing to be held as to whether the 60 days jail sentence should be remitted during the month immediately preceding the 60 day period at the end of the thirty-six month probation period.
So that there may be no misunderstanding, Mr. Hollinshead, it will be your duty to file a Petition with the Court if you desire to have that 60-day jail period eliminated from your probation within the time, within the one-month period that I’ve described. That is between the end of the thirty-second month of probation and the end of the thirty-third month of probation.”

This is a hybrid factual situation between that in Tipton of defendant Tipton and defendant Richardson. It is clear, however, that pursuant to the supreme court’s rulings in Tipton, the procedures set forth by the trial court in this case were correct. The trial court set a reasonable time frame as required by V.L.F. Requiring defendant to ask for hearing within a certain time frame will only benefit him and is certainly not a burden.

An additional basis for not requiring remand to the trial court are our statements in Burke, stating:

“Just as the trial court’s failure to state reasons for the sentence is waived unless the defendant asks for a fuller statement at the sentencing hearing [citations], so also may the opportunity for an explanation of the conditions for probation be waived if a defendant fails to avail himself of it at that time.” Burke, 136 Ill. App. 3d at 608, 483 N.E.2d at 685.

The defendant did not seek an explanation of the conditions attached to his term of probation during the sentencing hearing and, certainly, the defendant has waived this issue on appeal.


author: JUSTICE GREEN

text:
    RUSSELL E. SINCLAIR et al., Plaintiffs-Appellees, v. STATE BANK OF JERSEYVILLE, Defendant-Appellant.
    Fourth District
    No. 4—90—0468
    Opinion filed January 23, 1991.

      Joel A. Kunin and Steven M. Wallace, both of Carr, Korein, Tillery, Kunin, Montroy, Glass & Bogard, of East St. Louis, for appellant.
    J. Thomas Long and Steven D. Griffin, both of Farrell & Long, P.C., of Edwardsville, for appellee Russell E. Sinclair.
   JUSTICE GREEN

delivered the opinion of the court:

The appeal before us arises under Supreme Court Rule 308(a), which states:

“When the trial court, in making an interlocutory order not otherwise appealable, finds that the order involves a question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, the court shall so state in writing, identifying the question of law involved. Such a statement may be made at the time of the entry of the order or thereafter on the court’s own motion or on motion of any party. The Appellate Court may thereupon in its discretion allow an appeal from the order.” 107 Ill. 2d R. 308(a).

The legal questions involved as stated by the circuit court are:

“a. Whether performance of a pre-existing legal obligation as the result of an alleged intentional misrepresentation can constitute legally cognizable damages in an action predicated on fraud?
b. Whether a [pjlaintiff can state an action for breach of the obligation of good faith absent allegations of a contractual relationship and without reference to a specific contractual provision under which the [defendant failed to perform in good faith?”

We hold (1) performance of a preexisting legal obligation cannot constitute such damage; and (2) plaintiff cannot state such a cause of action without reference to such a specific contractual provision.

On July 9, 1990, plaintiffs Russell E. Sinclair and M. Marguerite Sinclair brought suit in the circuit court of Jersey County against defendant State Bank of Jerseyville in a two-count complaint seeking monetary damages. The complaint contended (1) on March 31, 1983, plaintiffs gave defendant their promissory note for $450,000 secured by two mortgages; (2) after plaintiffs became delinquent on the note, defendant initiated foreclosure proceedings in the county where the mortgaged land was located; (3) then an official of defendant promised plaintiffs defendant would dismiss the foreclosure proceedings if plaintiff paid the interest due on the notes; (4) that “representation was false at the time it was made and was known to be false” by defendant and its agents and board of directors and was made for the purpose of inducing plaintiffs to rely on it and “to pay large sums of money to defendant”; (5) in reliance thereon, plaintiff paid $46,870.61 (no statement was made concerning the amount due on the loans); and (6) defendant then foreclosed shortly after plaintiffs had filed a chapter 11 bankruptcy proceeding (11 U.S.C. §1101 et seq. (1988)).

Count I of the complaint was based upon the tort of fraud and deceit. Count II was founded upon a theory that defendant had breached a duty of good faith. No direct reference was made as to what, if any, contract defendant’s duty of good faith arose from. On November 9, 1989, defendant moved to dismiss the complaint on the basis it failed to state a cause of action. After hearing arguments, the circuit court entered an order on March 6, 1990, denying the motion, and on July 9, 1990, that court made findings pursuant to Supreme Court Rule 308(a) making the order denying dismissal subject to discretionary interlocutory appeal to this court. The questions of law as to which substantial grounds for difference of opinion were stated to exist were those described in the second paragraph of this opinion. We granted defendant’s petition for leave to appeal. We now reverse.

In regard to plaintiffs’ allegations of fraud and deceit contained in count I of the complaint, no Illinois cases are directly on point. However, an examination of secondary authorities indicates that, generally, where as a result of a misrepresentation one is induced to perform a preexisting legal obligation, there can be no injury compensable by law. Here, at the time of the alleged misrepresentation, plaintiff had a legal obligation to pay defendant the amount of interest due on the promissory note; therefore, he could not have suffered a detriment by paying an amount of interest that he was already required to pay, regardless of any misrepresentation.

On the subject of damages, Prosser and Keeton on Torts states:

“Since the modern action of deceit is a descendant of the older action on the case, it carries over the requirement that the plaintiff must have suffered substantial damage before the cause of action can arise. Nominal damages are not awarded in deceit, and there can be no recovery if the plaintiff is none the worse off for the misrepresentation, however flagrant it may have been, as where for example he receives all the value that he has been promised and has paid for, or is induced to do only what his legal duty would require him to do in any event.” (Emphasis added.) (W. Keeton, Prosser & Keeton on Torts §110, at 765 (5th ed. 1984).)

The defendant cites the following decisions of other jurisdictions that have held that an action for fraud cannot be based on an alleged misrepresentation that induced one to perform a preexisting legal obligation: Shortridge v. Platis (Ind. Ct. App. 1984), 458 N.E.2d 301; Bridgers v. Investors America, Inc. (1980), 154 Ga. App. 206, 267 S.E.2d 801.

The Indiana Court of Appeals in Shortridge, affirmed that trial court’s order granting summary judgment in favor of those defendants. There, that plaintiff complained she was induced by fraud to transfer stock in accordance with the terms of an existing legally enforceable contract. In finding that the plaintiff did not state a cause of action for fraud, the court of appeals stated “[t]here can be no recovery in fraud for a deception by which a person is induced to do something which he is already bound to do.” (Shortridge, 458 N.E.2d at 304.) The court of appeals found that, even assuming the truth of that plaintiff’s allegations, she had not sustained any compensable injury.

Likewise, in Bridgers, the court of appeals of Georgia reversed judgment on jury verdicts which, in part, awarded that defendant damages based on a counterclaim for fraud. There, the court of appeals held that false representations made subsequent to the execution of a real estate contract were not actionable. The court stated:

“Generally, a party may recover for fraud where he has sustained some pecuniary damage or injury whereby he is put in a position worse than he would have occupied had there been no fraud. However, fraud inducing a party to perform his legal obligations, such as the performance of a binding contract, is nonactionable as not causing damage.” (Emphasis added.) Bridgers, 154 Ga. App. at 208, 267 S.E.2d at 803.

American Jurisprudence 2d on Fraud and Deceit states the following:

“It is said to be immaterial that one is induced by false representations to do what he is bound to do. A person who has been induced to do that which the law would have otherwise required him to do cannot claim to have been defrauded. In other words, one suffers no damage where he is fraudulently induced to do something which he is under legal obligation to do, such as pay a just debt, pay delinquent taxes he has agreed to assume, execute a deed which he has contracted to execute, assume individual liability for a debt due from a solvent decedent’s estate, of which he who assumes the debt is sole legatee, or perform a valid contract. The fact that, to the indorsee’s knowledge, a note is obtained from the payee by false representations, is no defense to an action by the indorsee against the maker, since the maker is called upon to pay only what he has undertaken to pay, and payment to the plaintiff will be a good discharge. The contrary is true, however, where one is induced to perform a contract which he has the legal right to rescind, and suffers loss thereby.” (37 Am. Jur. 2d Fraud and Deceit §295, at 392-93 (1968).)

Here, the trial court recognized that plaintiffs had a preexisting legal duty to pay defendant the amount of interest due on the note, regardless of the alleged misrepresentation. However, the court found that under the circumstances, it was no “benefit” for plaintiffs to pay defendant the amount due on the note at the time of the foreclosure. The court then concluded plaintiffs were damaged by the alleged misrepresentation because they were deprived of the use of that money for other purposes.

The cited authority does not indicate the rule — deeming a party is not damaged by performing an act which that party is required to perform — is inapplicable when that party might gain by nonperformance. In Shortridge, the plaintiff would, undoubtedly, have received some benefit from retaining her corporate stock. In Bridgers, the plaintiffs were also required to make monetary payment.

Plaintiffs rely, in part, upon Alaska Statebank v. Fairco (Alaska 1983), 674 P.2d 288. There, a merchant debtor was delinquent on a loan from a bank. The trial court found that conversations between the parties had affected a modification of the loan agreement thus misleading the merchant debtor into believing the loan was not in default. The Alaska Supreme Court upheld a judgment in favor of the debtor and against the bank for compensatory and punitive damages because of the injury to the debtor merchant when the bank took possession of collateral consisting of personal property pledged to secure the loan. Notably, there the alleged extension agreement involved an increase in the interest rate of the loan and, thus, involved further consideration being given by the debtor.

Next, plaintiffs claim defendant breached a duty of good faith. It is clear that in Illinois there is an implied covenant of fair dealing and good faith in every contract. (Washburn v. Union National Bank & Trust Co. (1986), 151 Ill. App. 3d 21, 27, 502 N.E.2d 739, 743.) “Good faith between contracting parties requires the party vested with contractual discretion to exercise it reasonably, and he may not do so arbitrarily, capriciously, or in a manner inconsistent with the reasonable expectations of the parties.” Carrico v. Delp (1986), 141 Ill. App. 3d 684, 690, 490 N.E.2d 972, 976.

The problem with plaintiffs’ complaint is that it fails to plead the existence of a contract which defendant was performing at the time of the alleged misdeeds. The plaintiffs merely claimed that defendant had a duty of good faith in its “business dealings.” Plaintiffs have not cited any cases that would establish a duty of good faith upon a defendant when that defendant was not under a contractual obligation of performance.

Aside from the insufficient pleadings, plaintiffs would have difficulty establishing that a contract was formed when defendant allegedly promised to forbear from proceeding on the foreclosure if plaintiffs paid the interest due on the note. Plaintiffs gave no consideration for the promise as “[a] promise to do that which one is already legally obligated to do is no consideration and does not create a new obligation.” Trisko v. Vignola Furniture Co. (1973), 12 Ill. App. 3d 1030, 1035, 299 N.E.2d 421, 425.

Accordingly, in the absence of an allegation of a contractual relationship, plaintiffs failed to state a cause of action for breach of duty of good faith.

Accordingly, for the foregoing reasons we reverse the circuit court’s denial of defendant’s motion to dismiss.

Reversed.

STEIGMANN and KNECHT, JJ., concur.


author: JUSTICE KNECHT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICHARD LEE BRADFORD, Defendant-Appellant.
    Fourth District
    No. 4—90—0164
    Opinion filed January 23, 1991.
    Daniel D. Yuhas and Gary R. Peterson, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Charles G. Reynard, State’s Attorney, of Bloomington, (Kenneth R. Boyle, Robert J. Biderman, and Rebecca L. White, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE KNECHT

delivered the opinion of the court:

The defendant appeals his sentence for forgery (Ill. Rev. Stat. 1987, ch. 38, par. 17 — 3) and the order requiring payment of $1,353.78 as restitution. We affirm the sentence but vacate the restitution order and remand with instructions.

A McLean County grand jury indicted the defendant on two counts of forgery (Ill. Rev. Stat. 1987, ch. 38, par. 17 — 3). The first count was based on a VISA credit card charge slip totaling $424.94. The credit card had been issued to Wayne Thornton. The second count was based on a $400 check. The defendant pleaded not guilty to each charge, but later tendered a blind guilty plea to the first count. The State nol-prossed the second forgery charge.

The trial court sentenced the defendant to an extended term of six years’ imprisonment in the Department of Corrections and ordered him to pay $1,353.78 as restitution. The presentence investigation report indicated the defendant used Thornton’s VISA card to purchase goods totaling $798.31 from eight merchants and to rent a hotel room at the Comfort Inn. The hotel charges totaled $155.47. The defendant also forged Thornton’s signature and cashed a $400 check.

The defendant then filed a motion to withdraw his plea and vacate the judgment, alleging the court failed to admonish him a guilty plea would subject him to an extended term. The court reduced the defendant’s sentence to five years, concluding this was the maximum term for which the defendant could be incarcerated. The court let stand the restitution order. The defendant filed a timely notice of appeal.

The first issue on appeal is whether the court erred in ordering restitution in excess of the amount charged in the indictment. The defendant contends People v. Mahle (1974), 57 Ill. 2d 279, 312 N.E.2d 267, applies and precludes the restitution ordered here. In Mahle, the court ordered restitution of $1,138.86, though the informations indicated the total amount stolen was $387. The balance of the restitution ordered was for other checks the defendant allegedly wrote. The court stated: “We do not believe that the conditions of restitution may extend to matters unrelated to the charges before the court. The trial court was not empowered to order restitution of sums extraneous to the informations before it.” Mahle, 57 Ill. 2d at 284, 312 N.E.2d at 271.

Mahle preceded the legislature’s 1984 amendment to section 5— 5 — 6 of the Unified Code of Corrections. (Pub. Act 83 — 1061, §1, eff. July 1, 1984; Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 5—6(b).) The statute reads, in pertinent part:

“[T]he court shall assess the actual out-of-pocket expenses, losses, damages, and injuries suffered by the victim named in the charge and such other victims who may also have suffered out-of-pocket expenses, losses, damages, and injuries proximately caused by the same criminal conduct of the defendant ***.” Ill. Rev. Stat. 1987, ch. 38, par. 1005-5-6(b).

Several cases have interpreted the amendment. The defendant in People v. Ensley (1985), 132 Ill. App. 3d 842, 477 N.E.2d 760, appealed an order requiring him to pay restitution for items he was not charged with stealing. The appellate court held this was proper, because under the restitution statute a victim is entitled to recover for losses proximately caused by the defendant’s conduct. The court distinguished Mahle, stating:

“There the court stated that the restitution order was improper because it included payment for matters unrelated to the charges before the court. Unlike Mahle, the trial court in the instant case ordered restitution only for the value of the property related to the conduct set forth in the charges and to the victim named in the charging instrument.” Ensley, 132 Ill. App. 3d at 844, 477 N.E.2d at 762.

Similarly, in People v. Duff (1987), 152 Ill. App. 3d 896, 505 N.E.2d 36, the court approved restitution to a victim not identified in the indictment. The defendant was charged with and convicted of aggravated battery, for pouring bleach on Thomley. Finesilver was not mentioned in the indictment and did not testify at trial. Thomley, however, testified Finesilver was hit by the bleach and both received medical treatment for injuries. Thomley testified to his medical expenses and to his estimate of Finesilver’s medical expenses. The court ordered the defendant to pay restitution to both Thomley and Fine-silver and the appellate court affirmed, concluding section 5 — 5—6(b) (Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 5—6(b)) applied, because the same criminal conduct caused injuries to both victims.

This case is distinguishable, however, because the same act of forgery did not result in the total restitution amount. Instead, eight separate acts of forgery totaled $1,353.78. The State could have charged the defendant with eight acts of forgery. These acts involved different merchants at different locations at different times, and involved more than one victim. The amount ordered here required restitution for separate acts of criminal conduct, and unlike Ensley, was not limited to the conduct set forth in the indictment.

We conclude the trial court erred in ordering restitution in excess of the amount appearing in the indictment. The trial court does not have authority to order restitution for damages resulting from criminal conduct other than that charged in the indictment unless an exception, such as present in Ensley or Duff, exists. To the extent the restitution ordered exceeds the amount appearing in the charges, the order here is erroneous as to the excess. Mahle, 57 Ill. 2d at 284, 312 N.E.2d at 271.

The second issue on appeal is whether the circuit court erred in considering unsworn hearsay from the presentence report in ordering the defendant to pay $1,353.78 in restitution. Given our resolution of the first issue, we need not address this question.

The defendant’s sentence is affirmed, but the case is remanded for reduction of restitution.

Affirmed in part, vacated in part and remanded with directions.

LUND, P.J., and STEIGMANN, J., concur.