author: JUSTICE McNAMARA

text:
    ROBERT JONES, d/b/a Advance Steel Company, and B-K Partners, Plaintiff-Appellee, v. MELROSE PARK NATIONAL BANK, as Trustee, et al., Defendants-Appellants.
    First District (6th Division)
    No. 1—91—0205
    Opinion filed April 10, 1992.

      Robert S. Fritzshall, of Fritzshall & Gleason, of Chicago, for appellants.
    Melanie Grabavoy, of Chicago, for appellee.
   JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiff, Robert Jones, doing business as Advance Steel Company and B-K Partners, brought suit alleging breach of a real estate contract against defendants Melrose Park National Bank, as trustee, and Earl M. Greene, as beneficiary (collectively defendant). Defendant filed a counterclaim against plaintiff seeking damages for past-due rental payments, utilities and damage to the property. Following a bench trial, the trial judge found defendant in breach of the agreement and awarded plaintiff reimbursement of earnest money, improvements to the real and personal property, and moving expenses. The trial court also granted defendant’s counterclaim against plaintiff for past-due rent payments and utilities.

Defendant appeals, contending that the trial court erred in concluding that defendant breached the real estate sales contract by failing to provide merchantable title, and that plaintiff should not have been awarded consequential damages. (Defendant does not contest the trial court’s judgment ordering the return of plaintiff's earnest money. Additionally, the past-due rent payments and utilities awarded to defendant pursuant to the counterclaim are not at issue in this appeal.)

We adduce the following relevant facts from the record. On November 28, 1984, the parties entered into a written agreement whereby plaintiff, who operated a structural steel fabricating company, agreed to pay $265,000 for certain real estate and industrial property owned by defendant at 2755 West Lake Street, Melrose Park, Illinois. Paragraph 8 of the real estate sales contract provided in relevant part:

“Seller warrants that Seller, its beneficiaries or agents of Seller *** have received no notices from any city, village or other governmental authority of zoning, building, fire or health code violations in respect to the real estate that have not been heretofore corrected.”

On September 17, 1984, the United States Environmental Protection Agency (EPA) filed a complaint and notice of opportunity for hearing against defendant for failure to fully comply with regulations regarding the disposal of polychlorinated biphenyls (PCB) in a 490-square-foot area located on defendant’s property.

Plaintiff testified that he met with defendant Greene and a real estate agent in October 1984 and held several discussions concerning the purchase price and occupancy of the property. Plaintiff did not observe dirt being moved or any construction on the premises prior to the time he signed the contract. Defendant did not mention that he had been contacted by the EPA, or that a soil contamination problem existed. There was no agreement to pay any rent at the time plaintiff began occupying a portion of the premises because both parties expected to proceed to closing the sale shortly.

Plaintiff testified that he first discovered soil contamination on the premises in May 1985 after moving into the property. Defendant informed plaintiff that there were transformers on the property leaking PCB and that the EPA was giving him a hard time. Defendant contracted with an environmental company to perform the clean-up operation, which began in June 1985. The transformer and the capacitors were removed from the premises in September 1985. After that time, defendant repeatedly stated that the resolution of the problem was “imminent.”

Karl Irwinski, plaintiff’s partner, similarly testified that he first became aware of the soil contamination problem during the first week of May 1985. Irwinski noticed defendant’s employees filling 55-gallon drums with dirt. According to Irwinski, defendant denied that any problem existed; however, Sue Semenec, defendant’s office manager, informed Irwinski the following day that a transformer on the property was leaking PCB.

In his evidence deposition, defendant Greene stated that he first became aware of the PCB problem in July or August 1984, when the EPA told him that a transformer on the property was leaking. Semenec also testified that in July 1984 the EPA visited the premises and made some general inquiries; however, defendant did not receive any civil complaints until December 1984. Semenec stated that defendant first learned of the specific EPA violation at the end of February or early March 1985, and that defendant advised plaintiff of the soil contamination problem at that time.

The agreement provided that defendant could use all of the warehouse building space for a period of six months after the closing, but that 10,000 square feet of warehouse space would be available to plaintiff prior to closing. Within 90 days of the sale, the parties agreed that defendant would provide plaintiff with one-half of the remaining warehouse space, and the remainder within six months after closing. Defendant also had the option to retain possession of the last 7,500 square feet for 90 days. There was no charge to defendant for the use of this space for nine months after the date of closing.

The sales contract contained a mortgage contingency which provided that purchaser would secure a firm commitment for a conventional loan in the amount of $173,500. In paragraph 5 of the supplemental amendment, plaintiff was also given access to the premises to make any and all necessary improvements, as set forth below:

“[Beginning January 1, 1985, buyer will have access to the entire premises to make any and all necessary improvements. *** In the event the sale is not closed due to Buyer’s failure to obtain a mortgage or for any other reason due to Buyer’s fault, Buyer will not be entitled to reimbursement for the reasonable value of the expenditures made to said premises.
In the event the sale is not closed due to Seller’s fault, Seller will reimburse Buyer for all expenditures made by Buyer in improving said premises after Buyer receives his mortgage commitment; any expenditures made by Buyer prior to the time he receives his mortgage commitment will not be reimbursed regardless of whether the sale is closed due to Seller’s fault or Buyer’s fault.”

Plaintiff received a mortgage commitment from Colonial National Bank on January 18, 1985, in the amount of $200,000 which expired on February 6, 1985. Subsequently, on February 9, 1985, plaintiff received a second commitment from Colonial Bank which extended through February 25, 1985. The original closing date of December 14, 1984, was rescheduled to February 1, 1985, and later to March 8, 1985, pursuant to a contractual rider.

On February 27, 1985, plaintiff obtained a mortgage commitment from Melrose Park National Bank for $200,000, which expired on April 26, 1985. Melrose Park Bank issued another mortgage commitment on November 29, 1985, which extended through January 28, 1986. In that mortgage commitment, a provision was included that the $200,000 loan was contingent upon satisfactory evidence of a complete release from any further action by the EPA due to the PCB problem.

James Addington, vice-president of the loan department of Melrose Park Bank, testified that he had a series of discussions with defendant beginning in late May or early June 1984, wherein defendant told him that his son had installed a transformer on the property which presented some ground contamination problems. After the property had been sold to plaintiff, defendant informed Addington that he had contracted with an engineering firm for removal of the transformer and that soil borings were going to be performed in spring 1985 to determine if there was any PCB leakage. At the time, it was the usual and customary practice of the banking industry to demand that the property be cleaned up prior to the time that the closing would take place so that the bank did not acquire a piece of collateral it would not be able to use. Addington never received clearance from the EPA that the contaminated soil had been removed. Aside from the EPA violation, there was no other reason why Addington did not disburse the mortgage loan to defendant.

In June 1985, the parties entered into an oral lease agreement, retroactive to April 1985, which provided that plaintiff would occupy 10,000 square feet of warehouse space, 5,000 square feet of yard space, and 1,500 square feet of office space. (Prior to that time, plaintiff had access to 6,000 square feet of warehouse space only.) Plaintiff rented the premises on a month-to-month basis at a rental rate of $3,000 per month plus utilities. Plaintiff paid only the first month’s rent and a certain portion of the utilities.

Plaintiff made numerous improvements to the property, including the installation of electrical lines, gas piping, infrared heating, masonry, and the replacement of approximately 800 to 900 windows in the warehouse facility. Plaintiff stated that in August 1985, defendant allowed him to proceed with the extensive improvements required in the property in lieu of paying rent. From May 1985 through June 1986, plaintiff inquired approximately two or three times a month if the EPA releases were forthcoming and about the progress of the soil testing.

On May 19, 1986, defendant sent plaintiff a five-day notice to vacate the premises. Plaintiff inquired whether defendant would agree to a long-term lease with an option to buy if defendant could produce an EPA release at some later time. Defendant refused plaintiff’s request and stated that he wanted to sell the building and proceed with the original deal.

The parties agreed that plaintiff had to pay the rent or move. Plaintiff testified that he moved out of the premises in June 1986 because defendant did not deliver the EPA release as promised; never provided the amount of space required by plaintiff’s business; demanded full payment of the rent, and would not acknowledge the improvements made by plaintiff as an offset against rent owed. Irwinski testified that he wanted a long-term lease because plaintiff wanted defendant to vacate the property and lease the entire facility to plaintiff. (The EPA did not issue its final consent decree approving the removal of the contaminated soil until January 1987.)

The trial court ordered the return of plaintiff’s earnest money in the amount of $26,500 and awarded consequential damages in the amount of $115,445.11, which included $45,548.64 as moving expenses, $67,896.47 for improvements made to the property, and $2,000 as a mortgage commitment fee. The trial court did not allow plaintiff recovery for lost profits. With respect to the counterclaim, the trial judge found that plaintiff owed defendant $40,742 for past-due rent and utilities pursuant to the counterclaim, and ordered that amount as a setoff against the sum defendant owed to plaintiff.

On appeal, defendant first asserts that plaintiff waived the provisions of paragraph 8, which warrants that defendant had no notice from any governmental authority of any health code violation, because he failed to rescind the contract upon first learning of the alleged breach. In essence, defendant argues that as soon as the buyer learned of the contaminants and alleged misrepresentations, he should have rescinded the contract and not relied upon the seller’s promises to clean up the contaminants.

As support, defendant relies upon Madison Associates v. Bass (1987), 158 Ill. App. 3d 526, 511 N.E.2d 690, for the proposition that as soon as an individual learns of fraud, he is required to disaffirm or abandon the transaction with all reasonable diligence and, if he acts as though the transaction is still binding, he waives all benefits or relief from the misrepresentations. (See also Eisenberg v. Goldstein (1963), 29 Ill. 2d 617, 195 N.E.2d 184.) In Madison Associates, a tenant entered into a rental agreement for commercial office space and later withheld rent payments because of roof leakage and heating problems. After extensive negotiations, the parties entered into a settlement agreement for the back rent, which also released the landlord from any claims or losses incurred as a result of water infiltration. Tenant later filed a counterclaim seeking damages for water infiltration that occurred after the agreement was signed.

This court held that the tenant waived any claim that the landlord fraudulently induced him to sign the agreement because he was aware of the alleged fraud within four weeks after signing the agreement. Nevertheless, the tenant retained possession of the premises, made payments of back rents, and did not allege fraudulent inducement until the counterclaim was filed after the case was on trial.

However, the present case is distinguishable from Madison Associates because defendant was aware that a soil contamination problem existed in July or August 1984 when the EPA informed him that a transformer on the property was leaking. The EPA consent agreement indicates that a complaint and notice of opportunity for hearing was filed on September 17, 1984, alleging that defendant failed to comply with regulations regarding the disposal of PCB. Nonetheless, defendant entered the contract a few months later and represented that he had received no notices from any governmental authority of any health code violation that had not been corrected.

Semenec testified that she informed plaintiff of the existence of the soil contamination problem in February 1985 upon learning of the specific violation; however, plaintiff and Irwinski both testified that they did not learn of the problem until May 1985, after moving into the premises. Addington also testified that in May or June 1984, defendant informed him that ground contamination problems existed on the property.

More importantly, plaintiff asked Greene two or three times a month from May 1985 through June 1986 about the status of the EPA releases and soil testing. The record indicates that defendant gave continual assurances to plaintiff and Irwinski that the EPA release was “imminent,” and that the soil contamination problem would soon be cured. Indeed, the parties did not enter into a rental agreement prior to moving into the premises because both parties expected to close the transaction shortly. As such, we cannot fault plaintiff for relying upon defendant’s promise that the soil contamination problem would be corrected and not abandoning the property. As indicated by the record, plaintiff had already expended considerable sums of money in improvements to the premises.

Waiver is the purposeful relinquishment of a known right and can arise either expressly or by conduct inconsistent with intent to enforce a right. (Bailey v. Petroff (1988), 170 Ill. App. 3d 791, 525 N.E.2d 278.) To establish an implied waiver, there must be a clear, unequivocal, and decisive act of a party showing such a purpose. (Washburn v. Union National Bank & Trust Co. (1986), 151 Ill. App. 3d 21, 502 N.E.2d 739.) In light of plaintiff’s continual inquiries about the status of the EPA releases from the time he first became aware of the soil contamination problem, we find no evidence that plaintiff intended to waive seller’s express warranty set forth in paragraph 8 that no health code violations existed.

Alternatively, defendant argues that plaintiff ratified the agreement by remaining on the premises for approximately 18 months after learning of the existence of contamination on the property. We find defendant’s argument to be without merit because in order for a sale of land to be valid, it must comply with the Statute of Frauds. (Ill. Rev. Stat. 1983, ch. 59, par. 2.) The law is clear that “ ‘the same formality is required for ratification as for original authorization.’ ” (George F. Mueller & Sons, Inc. v. Northern Illinois Gas Co. (1973), 12 Ill. App. 3d 362, 365, 299 N.E.2d 601, quoting F. Mechem, Law of Agency §205 (4th Ed. 1952).) Thus, where a writing is expressly required by the Statute of Frauds, a writing is also essential to effect a valid ratification. Mueller & Sons, 12 Ill. App. 3d 362, 299 N.E.2d 601.

Defendant next contends that plaintiff’s discovery of an encroachment and judgment upon the land, back taxes, and the presence of hazardous waste materials does not constitute a failure by seller to provide merchantable title. Merchantable title is characterized as:

“ ‘[A] title not subject to such reasonable doubt as would create a just apprehension of its validity in the mind of a reasonable, prudent and intelligent person; one that persons of reasonable prudence and intelligence, guided by competent legal advice, would be willing to take and pay the fair value of the land for.’ ” Sinks v. Karleskint (1985), 130 Ill. App. 3d 527, 529, 474 N.E.2d 767, quoting Wilfong v. W.A. Schickedanz Agency, Inc. (1980), 85 Ill. App. 3d 333, 337, 406 N.E.2d 828, 831.

It is further defined as “not perfect title, but rather title reasonably secure against litigation or flaws decreasing market value.” (Stevens v. Wilson (1980), 86 Ill. App. 3d 1047, 1053, 408 N.E.2d 496.) Merchantability of real estate can and must be decided by the court as a matter of law when sufficient evidence concerning surrounding facts is determinable from the record. Sinks v. Karleskint, 130 Ill. App. 3d 527, 474 N.E.2d 767.

Applying these principles to the present case, we find that in paragraph 8, defendant specifically warranted that he received no notice from any governmental authority of any health code violations that had not been corrected; however, it is undisputed that the EPA contacted defendant several months prior to the sale of the property to discuss defendant’s failure to comply with regulations regarding the disposal of the PCB. The record also indicates that defendant expended $100,000 in excavation and removal of contaminated soil, and that the proposed EPA penalty was in the amount of $28,500. In view of the fact that plaintiff contracted to purchase the property at $265,000, it is reasonable to infer that the presence of the soil contamination upon the premises, in conjunction with the imposition of severe EPA sanctions, had a profound impact upon the merchantability of the title. Accordingly, we find that the presence of hazardous waste materials, in itself, is sufficient to preclude defendant from tendering merchantable title to plaintiff. As such, we need not reach the merits of whether the encroachment, judgment and back tax issues posed potential merchantability of title problems.

Defendant also argues that he was not required to tender merchantable title prior to tender of performance by plaintiff. Essentially, defendant contends that his only obligation was to provide a title commitment five days before closing. Consequently, because a closing date was never set, defendant was not required to tender merchantable title.

Review of the facts in this case reveals that plaintiff procured four mortgage commitments. Colonial Bank and Melrose Park Bank each issued two commitments in excess of the contract requirement for purchase of the property. Melrose Park Bank’s second commitment extended through January 28, 1986, and was conditioned upon a release from any further action by the EPA due to the soil contamination problem. Addington testified that aside from the EPA violation, there was no other reason why the mortgage loan was not disbursed to defendant. Thus, it appears that plaintiff was able to tender performance once the soil contamination problem was solved.

In Christopher v. West (1951), 409 Ill. 131, 98 N.E.2d 722, our supreme court held that if any claimed defect affected the merchantability of the title and was not cured or curable within a reasonable time as provided in the contract, no tender of the purchase price was necessary. In this case, the parties entered into the agreement on November 28, 1984, and the EPA final release was not issued until January 1987. During that time, two closing dates were set and postponed. The record also demonstrates that plaintiff continually queried defendant about the progress of the soil contamination removal. We find, therefore, that plaintiff’s failure to set a closing date, in light of his awareness that the EPA release was not forthcoming, is of no effect.

Defendant further argues that plaintiff cannot recover for repairs made to enhance his leasehold interest. Defendant cites Johnston v. SucJcow (1977), 55 Ill. App. 3d 277, 370 N.E.2d 650, for the proposition that a landlord is generally not liable to a tenant for the value of improvements voluntarily made by tenant in the absence of an agreement imposing such liability. However, paragraph 5 of the supplemental amendment here specifically provides:

“In the event the sale is not closed due to Seller’s fault, Seller will reimburse Buyer for all expenditures made by Buyer in improving said premises after Buyer receives his mortgage commitment.”

As previously discussed, plaintiff received mortgage commitments from two banks. The improvements at issue were made after the commitments were procured. While it is true that a mortgage commitment was not continuously in effect, we note that Addington testified the mortgage proceeds would have been released upon clearance from the EPA of the soil contamination problem. Thus, we find that the trial court properly concluded that paragraph 5 requires defendant to reimburse buyer for improvements made to the premises.

We turn now to the issue of whether plaintiff is entitled to consequential damages for moving expenses. It is well established that a person breaching a contract can be held liable for such damages as may fairly and reasonably be considered as naturally arising from the breach thereof, in light of the facts known or which should have been known, or such as may reasonably be supposed to have been within the contemplation of the parties as a probable result of a breach thereof. (Case Prestressing Corp. v. Chicago College of Osteopathic Medicine (1983), 118 Ill. App. 3d 782, 455 N.E.2d 811, citing Sheppard v. Fagan (1981), 94 Ill. App. 3d 290, 418 N.E.2d 876; Carlson v. Collander (1970), 126 Ill. App. 2d 236, 261 N.E.2d 817; 15 Ill. L. & Prac. Damages §33 (1968).) Speculative damages or damages not the proximate result of a breach of contract will not be allowed. Feldstein v. Guinan (1986), 148 Ill. App. 3d 610, 499 N.E.2d 535.

We hold that plaintiff was not entitled to consequential damages for the expense of moving. After it became apparent that the soil contamination problem prevented the parties from closing the transaction, the parties entered into an oral lease which provided that plaintiff would lease a portion of the premises at a rental rate of $3,000 per month plus utilities. Although the lease extended from April 1985 through June 1986, plaintiff paid only the first month’s rent, and some utilities. Thus, plaintiff accumulated approximately $40,000 in arrears for past-due rent and utilities. Plaintiff insisted that defendant enter into a long-term lease, which defendant refused to consider. At that point, the parties agreed that plaintiff had to either pay the past-due rent or move from the premises.

According to plaintiff, he moved from the premises because defendant did not deliver the EPA release. Also, plaintiff complained that defendant did not provide sufficient space for plaintiff’s business; demanded full payment of the rent, and would not acknowledge the improvements made by plaintiff as an offset against rent owed. Irwinski stated that he wanted a long-term lease because plaintiff wanted defendant to move out of the property and lease the entire facility to plaintiff. The real estate sales agreement, however, provided defendant with access to varying amounts of commercial space on the premises at no charge for approximately nine months after closing.

We do not believe that plaintiff’s expenses in moving from the facility should be awarded as consequential damages, for plaintiff chose to move from the facility rather than pay the past-due rent. Such an action was not within the contemplation of the parties at the time the parties entered into the agreement. Accordingly, we reverse that portion of the judgment ordering defendant to pay plaintiff’s moving expenses in the amount of $45,548.64.

For the foregoing reasons, the order of the circuit court of Cook County finding that defendant breached the real estate agreement by failing to deliver merchantable title is affirmed. That portion of the judgment awarding to plaintiff consequential damages in the amount of $69,896.47 is affirmed, and the award of $45,548.64 for moving expenses is reversed.

Judgment affirmed in part, reversed in part.

LaPORTA and RAKOWSKI, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE EGAN

license: Public Domain

text:
    PATRICIA HENDERSON et al., Plaintiffs-Appellants, v. JESSE L. MILLER, JR., Defendant-Appellee.
    First District (6th Division)
    No. 1—91—1379
    Opinion filed April 10, 1992.

      Holstein, Mack & Klein, of Chicago (Anthony B. Bass and Thayer C. Torgerson, of counsel), for appellants.
    Ahern, Butler & Glover, of Chicago (Maurice R. Glover and Cecil C. Butler, of counsel), for appellee.
   PRESIDING JUSTICE EGAN

delivered the opinion of the court:

The defendant, Jesse L. Miller, Jr., is presently the alderman of the 24th ward in the City of Chicago. The plaintiffs, Patricia Henderson and Diane Logan, appeal from an order denying their petition for leave to file a complaint in quo warranto in which they sought the removal of the defendant from the office of alderman. The trial judge held that the plaintiffs lacked standing to bring the action, that the action was time barred and that the circuit court lacked original jurisdiction. The defendant contends that the trial judge correctly denied leave to file the complaint on the grounds he ascribed; the defendant also maintains that the judge’s order should be affirmed on the additional ground that the complaint failed to state a cause of action.

On December 10, 1990, the defendant filed his sworn statement of candidacy with the Board of Election Commissioners for the City of Chicago, requesting that his name be placed on the election ballot for alderman of the 24th ward. The statement of candidacy included the following sworn statement of the defendant:

“I, JESSE L. MILLER, JR., being first duly sworn, say that I reside at 1109 SOUTH AYE. [sic] Street, in the CITY of CHICAGO Zip Code 60612 in the county of COOK State of Illinois; that ! am a qualified voter therein, that I am a candidate for ELECTION to the office of ALDERMAN in the 24TH WARD CITY OF CHICAGO to be voted upon at the ELECTION to be held on the 26TH day of FEBRUARY, A.D. 1991 and that I am legally qualified to hold such office and that I have filed (or I will file before the close of the petition filing period) a Statement of Economic Interests as required by the Illinois Governmental Ethics Act and I hereby request that my name be printed upon the official ballot for ELECTION for such office.”

The statement was signed by the defendant and notarized. At the top of the statement is a box for an address; in the box is “1109 South Troy Avenue, Chicago, IL 60612.” The plaintiffs make no issue of the discrepancy in the address that is contained in the body of the sworn portion of the statement of candidacy.

The preliminary election for alderman of the 24th ward was held on February 26, 1991. The defendant did not receive a majority of the votes cast; therefore, his name was placed on the supplementary aldermanic ballot for the election to be held on April 2, 1991. On March 26, 1991, the plaintiffs, residents of the 24th ward, filed a quo warranto complaint in the circuit court of Cook County seeking to have the defendant’s candidacy declared unlawful. The complaint alleged that the defendant fraudulently represented on his statement of candidacy that he was a registered voter at 1109 South Troy Avenue in Chicago, when he was in fact a registered voter at 1647 South Springfield in Chicago; that he did not become a registered voter at 1109 South Troy until February 28, 1991; and that the defendant had violated the campaign disclosure act (Ill. Rev. Stat. 1989, ch. 46, par. 9 — 1 et seq.) by failing to account for his campaign contributions and expenditures.

In accordance with section 18 — 103 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 18 — 103), before filing the complaint, the plaintiffs had requested the State’s Attorney of Cook County and the Illinois Attorney General to investigate and prosecute the defendant’s alleged fraud and violations of the campaign disclosure act. Neither office answered the plaintiffs’ request.

Some time before the quo warranto complaint was filed in the chancery division of the circuit court, the plaintiffs had filed a complaint against the defendant with the State Board of Elections alleging that the defendant had not filed forms required by the campaign disclosure act and had failed to report contributions and expenditures for his campaigns for alderman and the water reclamation district.

On February 25, 1991, the State Board of Elections (Board) entered a “Final Determination and Order” in which the Board found that the defendant had violated the act by failing to file the required forms and by failing to report contributions and expenditures. The Board ordered the defendant to create a committee to file the appropriate forms within 10 days of receipt of the order. The order further provided that any failure or refusal by the committee to comply with the terms of the order would result in the automatic imposition upon the committee and its officers a civil penalty not to exceed $1,000. A copy of the order was attached to the quo warranto complaint.

On April 2, 1991, the defendant defeated his opponent in the runoff election and was elected alderman of the 24th ward. The chancery division judge granted the plaintiffs leave to file an “Emergency Motion for Temporary Restraining Order and Declaratory Judgment” on April 5, 1991, requesting that the defendant be enjoined from taking the oath of office. The plaintiffs’ motion alleged that the defendant “knowingly circulated petitions stating he was registered to vote at 1109 South Troy Avenue, Chicago, when, in fact, he was not a registered voter therein.” Attached to the plaintiffs’ motion was their “First Amended Complaint In Quo Warranto, Declaratory Judgment and Injunctive Relief.” The matter was transferred from the chancery division to the county division on April 5,1991.

On April 18, 1991, the county division judge entered an order enjoining the defendant from taking the oath of office for alderman of the 24th ward and from performing any of the duties of the office of alderman.

On April 23, 1991, the defendant filed a motion requesting that the judge dissolve the temporary restraining order, dismiss the complaint in quo warranto and dismiss the petition for declaratory judgment and injunctive relief. After a hearing, the judge dissolved the temporary restraining order and continued the motion to dismiss.

On May 1, 1991, the judge dismissed the complaint for declaratory judgment on the ground that the plaintiffs lacked standing. Relying on Thurston v. State Board of Elections (1979), 76 Ill. 2d 385, 392 N.E.2d 1349, he held that the plaintiffs’ claim was barred by laches. Relying on People ex rel. Klingelmueller v. Haas (1982), 111 Ill. App. 3d 88, 443 N.E.2d 782, he held that the circuit court had power only to review the decision of an electoral board but had no original jurisdiction to determine the validity of the defendant’s nominating papers. His order dismissed both the plaintiffs’ complaint for declaratory judgment and their petition for leave to file a complaint in quo warranto.

We note that the notice of appeal refers only to the order denying the plaintiffs leave to file a complaint in quo warranto; it makes no reference to the dismissal of the complaint for declaratory judgment. The plaintiffs’ attorney informed us in oral argument that we need not address the propriety of the order dismissing the declaratory judgment complaint.

The quo warranto complaint alleged two acts of wrongdoing on the part of the defendant: (1) he “fraudulently misrepresented that he was a registered voter at 1109 South Troy Avenue,” (2) he “is currently in violation of the Campaign Disclosure Act *** in that he has failed to account for contributions and expenditures for the campaign for Alderman for the 24th Ward.” The issues of laches and jurisdiction apply only to the allegation of fraudulent misrepresentation in the nominating papers. Because resolution of those issues would not resolve the entire case, we need not discuss them. The issues of standing and sufficiency of the complaint apply to both allegations of wrongdoing. Because we conclude that the judgment should be affirmed for both lack of standing and the insufficiency of the complaint, we address only those issues.

Stated briefly, the allegation of the complaint that the defendant “fraudulently misrepresented that he was a registered voter at 1109 South Troy Avenue” is mistaken. In the statement of candidacy the defendant said, “I reside at 1109 South [Troy Avenue] in the City of Chicago Zip Code 60612 in the county of Cook State of Illinois” and “I am a qualified voter therein.” (Emphasis added.) Our reading of the exhibit shows that the defendant did not swear that he was a voter at 1109 South Troy; he swore only that he resided there. When facts alleged in a complaint differ from those shown by an exhibit attached to the complaint, the exhibit controls. (Friedman v. Gingiss (1989), 182 Ill. App. 3d 293, 537 N.E.2d 1067.) The plaintiffs now ask us to infer that when the defendant swore he was a “voter therein,” he was swearing that he was a voter at 1109 South Troy and not in the City of Chicago. We must decline to do so.

The Municipal Code requires only that a candidate for alderman “reside within the ward for which he is elected” and be “a qualified elector of the municipality.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 24, pars. 3 — 4—15, 3 — 14—1.) The act does not require that a candidate be a voter at his place of residence. The defendant’s statement of candidacy is on a form provided by the Board of Election Commissioners of the City of Chicago. If the plaintiffs’ argument is correct, the form provided by the board requires a candidate to swear to something which the statute itself does not require. The illogic of the plaintiffs’ argument is apparent. We agree with the defendant’s contention that his statement of candidacy did not fraudulently misrepresent that he was a “voter at 1109 South Troy.” Consequently, removing the defendant from office based on that allegation would not be justified.

The plaintiffs correctly point out that the judge did not address the allegation that the defendant had violated the campaign disclosure act. We can understand the judge’s abstention from deciding that question, since he held that the plaintiffs lacked standing to maintain any quo warranto complaint. The plaintiffs also correctly point out that the defendant has not answered their argument that violation of the campaign disclosure act would justify the defendant’s removal from office. Although the defendant has not answered the argument, we will address it. See Korogluyan v. Chicago Title & Trust Co. (1991), 213 Ill. App. 3d 622, 572 N.E.2d 1154.

The quo warranto act provides that “[a] proceeding in quo warranto may be brought in case: *** (3) any public officer has done, or allowed any act which by the provisions of law, works a forfeiture of his or her office.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 110, par. 18 — 101(3).) The campaign disclosure act provides that, where the Board directs a person in violation of its provisions to cease or correct the violation and such person fails or refuses to comply with the order, the Board may impose a civil penalty on such person in an amount not to exceed $1,000. The Board may petition the circuit court for an order to enforce collection of the penalty and the Board may report the violation and any failure to comply with the order to the Attorney General or the appropriate State’s Attorney. (Ill. Rev. Stat. 1989, ch. 46, par. 9 — 23.) The Board may also petition the circuit court for an order compelling compliance with an order or enjoining a person from violating the act. (Ill. Rev. Stat. 1989, ch. 46, par. 9 — 24.) Willful failure to file or willful filing of false or incomplete information shall constitute a Class B misdemeanor and prosecution shall be brought by the appropriate State’s Attorney or the Attorney General. (Ill. Rev. Stat. 1989, ch. 46, par. 9 — 26.) There is no provision in the act for removal from office for any violation of its requirements. In contradistinction, the Election Code expressly provides that a statement of economic interests shall be filed within a prescribed time (Ill. Rev. Stat. 1989, ch. 46, par. 10 — 5), and the Illinois Governmental Ethics Act provides that failure to file a statement of economic interests within the time prescribed shall result in ineligibility for, or forfeiture of, office. Ill. Rev. Stat. 1989, ch. 127, par. 604A — 107; see also Welch v. Johnson (1992), 147 Ill. 2d 40.

There are a number of other statutes which expressly provide that a violation of their provisions results in forfeiture of office. (See, e.g., Ill. Rev. Stat. 1989, ch. 38, par. 33 — 3 (official misconduct); Ill. Rev. Stat. 1989, ch. 24, par. 4 — 8—2 (bribery by a nominee or candidate); Ill. Rev. Stat. 1989, ch. 34, par. 5 — 36009 (conflict of interest of county officers and employees).) It is apparent that, when the legislature intends that an office shall be forfeited for violation of a statute, the legislature will say so.

Before a statute may be construed to include a penalty, including forfeiture of office, it must be clear that the legislature intended to include it. It is a fundamental rule of statutory construction that any ambiguity in a statute must be resolved against the inclusion of a penalty. (Saskill v. 4-B Acceptance (1985), 139 Ill. App. 3d 143, 487 N.E.2d 97.) Invoking that rule of construction, we conclude that the legislature did not intend that a violation of the campaign disclosure act constituted a ground for removal from office. Therefore, the conduct of the defendant did not come within the provisions of the quo warranto act. Ill. Rev. Stat. 1989, ch. 110, par. 18 — 101(3).

For these reasons, we conclude that the two allegations of wrongdoing are not sufficient to support the complaint and that the trial judge properly denied leave to file the complaint in quo warranto.

We also conclude that the trial judge correctly denied leave to file the quo warranto complaint on the ground that the plaintiffs lacked standing. The right to institute an action in quo warranto belongs to the State; thus, originally only the State’s Attorney or the Attorney General could bring the action. Over time, the law evolved to allow a private person having a distinct private interest in the subject matter to apply to the Attorney General or the State’s Attorney to institute the proceeding on his behalf. If the petition met certain requirements, the authorities were required to institute the action, and if they refused to do so, a court could compel them by mandamus to file the action. See People ex rel. Miller v. Fullenwider (1928), 329 Ill. 65, 160 N.E. 175.

In cases involving matters of public interest, however, Illinois courts have consistently held that only the Attorney General or the State’s Attorney, as representatives of the people, have standing to institute quo warranto proceedings. (See People ex rel. Raster v. Healy (1907), 230 Ill. 280, 82 N.E. 599.) Moreover, in matters of purely public interest, these officials have complete, arbitrary and unfettered discretion as to whether they shall institute the action. People v. Wood (1952), 411 Ill. 514, 104 N.E.2d 800.

Under current Illinois law, a private citizen seeking to bring an action in quo warranto on his own behalf must first request the Attorney General or the State’s Attorney to file the action. (Ill. Rev. Stat. 1989, ch. 110, par. 18 — 103.) If those officers refuse or fail to act, the individual may petition the court for leave to file the action. In order to obtain leave, an individual must demonstrate that he has standing by showing that he has a private interest which is directly, substantially and adversely affected by the challenged act, which is either then occurring or certain to occur, and which is distinct from the interests of the general public, even though some members of the public might be affected in the same manner. (People ex rel. Turner v. Lewis (1982), 104 Ill. App. 3d 75, 432 N.E.2d 665.) Filing a complaint in quo warranto is not a matter of right, and whether leave to institute the action should be granted lies within the sound discretion of the trial court. (People ex rel. Nelson v. Village of Long Grove (1988), 169 Ill. App. 3d 866, 523 N.E.2d 656.) The court should consider all the circumstances of the case, including whether the proceeding will benefit the public. See, e.g., People ex rel. Hanrahan v. Village of Wheeling (1976), 42 Ill. App. 3d 825, 356 N.E.2d 806.

In People ex rel. Turner v. Lewis (1982), 104 Ill. App. 3d 75, 432 N.E.2d 665, a case relied upon by the trial judge, the plaintiff was denied leave to file an action in quo warranto against the appointed State’s Attorney. The plaintiff argued that he had standing because he was a taxpayer in the county, relying on People ex rel. McCarthy v. Firek (1955), 5 Ill. 2d 317, 125 N.E.2d 637. The appellate court distinguished Firek, noting that in that case standing was premised on direct adverse tax consequences certain to be suffered by the plaintiffs. The Turner plaintiff alternatively argued that he had standing as a citizen and voter in the county. The appellate court dismissed this argument, holding that the defendant’s occupation of the office of State’s Attorney had not harmed the plaintiff as a citizen or voter in any respect which was distinct from the harm suffered by every other citizen and voter in the county.

In Allen v. Love (1983), 112 Ill. App. 3d 338, 445 N.E.2d 514, another case relied upon by the trial judge, the plaintiffs argued that they had standing to bring a quo warranto and declaratory judgment action against the chief financial officer of the Chicago Board of Education because they were residents and taxpayers in the city, and because they had children enrolled in the Chicago pub-lie school system. The appellate court held that taxpayer status alone was insufficient to give the plaintiffs standing, as they had not alleged that the defendant’s failure to timely file a statement of economic interests would result in financial loss or other injury to them. Similarly, the court held that the interest of the parents of Chicago public school students in assuring compliance with the ethics act was not a personal interest sufficient to confer standing to maintain a quo warranto action. Accordingly, the court held that only the Attorney General or the State’s Attorney would have standing to bring a quo warranto action against the defendant.

The plaintiffs allege that as residents and voters of the 24th ward, their interests are distinct from those of persons residing outside the 24th ward. However, in Turner, the plaintiff’s interest was distinct from that of persons residing outside his county, and in Allen, the interest of the parents of Chicago public school students was distinct from that of other persons. Nonetheless, their interests were not sufficiently personal and distinct from the interests of the general public to give them standing. The plaintiffs further allege that their alderman represents each one of them individually, and each of them expects any alderman to be honest, truthful and mindful of his duty as a public official. This interest, however, is not personal to these two plaintiffs; rather, it is shared by all residents of the 24th ward. (See People ex rel. Hiller v. Bevirt (1938), 297 Ill. App. 335, 17 N.E.2d 629.) We conclude that the trial judge properly relied on Turner and Allen and held that the plaintiffs lacked standing to bring the quo warranto action.

The plaintiffs rely principally on Kluk v. Lang (1988), 125 Ill. 2d 306, 531 N.E.2d 790. We do not believe that Kluk supports standing of the plaintiffs here. In Kluk the supreme court emphasized that the plaintiffs were challenging the constitutionality of a statute which, in effect, denied their right to vote to fill a vacancy in the State legislature. The court also emphasized the fact that Kluk involved a complaint for declaratory judgment and that the standing requirements for quo warranto were “stricter than those for declaratory judgment standing.” 125 Ill. 2d at 320.

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

Judgment affirmed.

RAKOWSKI and LaPORTA, JJ., concur.


author: JUSTICE HAASE

text:
      In re MARRIAGE OF DANIEL E. WESSELHOFT, Plaintiff-Appellant, and JOANN M. WESSELHOFT, Defendant-Appellee.
    Third District
    No. 3—91—0497
    Opinion filed April 30, 1992.
    James W. Springer, of Kavanagh, Scully, Sudow, White & Frederick, P.C., of Peoria (Julian E. Cannell, of counsel), for appellant.
    Frederick W. Allen, of Frederick W. Allen, Ltd., of Peoria (Gary L. Clark, of counsel), for appellee.
   JUSTICE HAASE

delivered the opinion of the court:

The plaintiff, Daniel Wesselhoft, and the defendant, Joann Wesselhoft, were married in 1954. The parties filed for dissolution of marriage in 1988. The sole issue of dispute between the parties is the status of the husband’s interest in the Model Wallpaper and Paint Company. The husband claims the property is a nonmarital asset. According to the husband, he obtained his interest in the company as a gift from his father, Oscar Wesselhoft. The wife claims the husband’s interest is marital property. According to the wife, the husband’s interest was purchased from Oscar Wesselhoft during the parties’ marriage. At trial, the court ruled that the husband’s interest was acquired by purchase and ordered the property evenly divided. The husband appeals. We affirm.

The Model Wallpaper and Paint Company was founded in 1899 by Ernst Wesselhoft. In 1952, Ernst Wesselhoft transferred ownership of the company to his two sons, Walter and Oscar Wesselhoft. Eventually, Walter and Oscar each passed their interest in the company to their two sons, Daniel (plaintiff) and Robert. It is the nature of this transfer that is the subject of the present dispute.

In the early 1960’s, Oscar and Walter informed their sons that each parent was transferring his respective oiie-half interest in the business to his son. The total book value of the company at that time was $100,000. In his evidence deposition, Robert Wesselhoft explained that the transaction was part sale, part gift. Each son agreed to pay $20,000 out of the profits of the business to their respective fathers and $30,000 was “gifted” to each of them.

The plaintiff also characterized the transaction as part sale, part gift.

“Q. All right. Let me ask you this: about 1965 did you and Bob agree to make payments to your father and Walter for the business?
A. Yes, we did.
Q. And you did make payments commencing that time until the business was paid for?
A. Yes. That’s not the whole story, though.”

The plaintiff went on to explain that the company was run as a family partnership and was quite profitable for many years. During this time, he and Robert would draw only enough money to meet their necessary expenses and the excess profit was evenly divided between their parents. In return for this forbearance, the parents agreed to gradually relinquish ownership of the company. Each year, the plaintiff and Robert received an additional interest in the company from their parents. In addition, the plaintiff testified that the parents gifted part of the company to them. These transactions were not documented nor were specific transfers designated as “gift” or “purchase” transfers.

Section 503 of the Illinois Marriage and Dissolution of Marriage Act (the Act) (Ill. Rev. Stat. 1989, ch. 40, par. 503) governs the classification of properf^The Act creates a presumption that property acquired during the marriage is marital property, and the party seeking to rebut the presumption bears the burden of showing the property was acquired in a manner that makes it nonmarital, such as a gift. (Hofmann v. Hofmann (1983), 94 Ill. 2d 205, 446 N.E.2d 499.) Illinois law also presumes that a transfer from a parent to a child constitutes a gift, and the party seeking to rebut this presumption also bears the burden of producing evidence to the contrary. (In re Marriage of Rosen (1984), 126 Ill. App. 3d 766, 467 N.E.2d 962.) When a court is faced with inconsistent presumptions, as in the case at bar, the presumptions are canceled and the trier of fact is to determine the facts of the case solely on the evidence presented. Rosen, 126 Ill. App. 3d at 772; Cleary & Graham, Handbook of Illinois Evidence §302.9, at 76 (3d ed. 1979).

In the case at bar, the evidence showed that the husband reimbursed his father for at least part of the interest he acquired in the company. The evidence also indicated that the transaction involved a “bargain” distribution of property that would rarely occur in a transaction among strangers. Based on this evidence, the trial court held the entirety of the husband’s interest in the company marital in nature. The husband claims the trial court erred. In determining whether the trial court erred, we must deal with one final presumption.

In an appeal, all reasonable presumptions are in favor of the judgment or decree of the trial court, and it is the duty of the appellant to overcome these presumptions by affirmatively showing the errors charged. (Davis v. Davis (1970), 128 Ill. App. 2d 427, 429, 262 N.E.2d 788.) In the case at bar the husband has failed to make such a showing. Although reasonable minds may differ as to whether the transaction at issue was marital or nonmarital, the evidence presented certainly supports the trial court’s ruling. The trial court could have reasonably concluded, based on the evidence, that the transfer at issue was simply a bargain sale.

Accordingly, the decision of the circuit court of Peoria County is hereby affirmed.

Affirmed.

GORMAN and STOUDER, JJ., concur.


author: PRESIDING JUSTICE BARRY

text:
      In re A.D., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. A.D., Respondent-Appellant).
    Third District
    No. 3—91—0610
    Opinion filed May 1, 1992.
    Mark D. Fisher, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Kevin W. Lyons, State’s Attorney, of Peoria (John X. Breslin and Rita Kennedy Mertel, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE BARRY

delivered the opinion of the court:

The respondent minor, A.D., was charged by juvenile petition with unlawful use of weapons, unlawful possession of firearms, criminal damage to property, disorderly conduct, and two counts of battery (Ill. Rev. Stat. 1989, ch. 38, pars. 24-1(a)(4), 24-3.1(a)(1), 21-1(1)(a), 26 — 1(a)(1), 12 — 3(a)(1)). Subsequently, a supplemental petition was filed adding two counts of robbery. At the adjudicatory hearing, the State dismissed the two robbery counts in exchange for the respondent’s guilty plea to the other charges. At a dispositional hearing, the court committed the respondent to the juvenile division of the Department of Corrections for a period not to exceed his 21st birthday. The respondent appeals.

The factual basis for the respondent’s plea established that the respondent had knowingly concealed an automatic pistol on his person while walking through a park. He threatened Deborah Ginn and threw a soda bottle through the windshield of her truck, shattering the windshield and thereby causing pieces of glass to cut Alexis Tilton’s forehead. Deborah Ginn’s three-year-old son was in the truck at the time. The respondent also struck Amy Bricker in the face.

At the dispositional hearing, the respondent’s dispositional social history indicated that he was 14 years old and he had no prior history of delinquency. The report included the recommendation of Joseph Johnson, Director of Juvenile Court Services, that the respondent be committed to the Department of Corrections juvenile division for a 90-day evaluation and that he then be considered for probation.

Ten-year-old Ashley Westhaver testified that the respondent had threatened to have the respondent’s younger brother, Marcus, beat him up unless Westhaver paid the respondent’s admission to a swimming pool.

The respondent’s mother testified that prior to his arrest, he had run away from home for about two months. She had tried to locate him but did not know where he was staying.

Thirteen-year-old Amy Bricker testified that the respondent had beat her up by punching her in the face about three times. This caused her nose to bleed.

The respondent testified and denied threatening Ashley Westhaver. He claimed that Westhaver had offered to pay for everyone that day, including the respondent. The respondent also stated that he had stayed with his younger brother’s aunt during the two-month period he was away from home.

Following the above-noted testimony, the State recommended that upon completion of a 120-day evaluation at “Gift,” the respondent be placed on intensive probation. The respondent’s counsel recommended a 30- to 60-day evaluation and the respondent’s mother agreed. The trial court found that the respondent was a serious threat to society and committed him to the Department of Corrections’ juvenile division.

On appeal, the respondent first argues that his admission to the petition was not voluntary and intelligent because the record does not indicate that he was aware of the consequences of his admissions.

Initially, we address the State’s argument that we do not have jurisdiction to entertain this appeal because the respondent failed to make a motion to withdraw the admission in the trial court. We disagree. We will follow the decision in In re J.G. (1989), 182 Ill. App. 3d 234, 537 N.E.2d 1360, wherein the First District Appellate Court assumed jurisdiction over the appeal because, as in the case at bar, the trial court failed to properly admonish the minor of the need to file a motion to withdraw his admission. Under these circumstances, this court -will likewise exercise jurisdiction and examine the merits of the respondent’s argument.

The respondent specifically complains that the record does not indicate that he understood the potential dispositions or knew that he was waiving his rights to confront his accusers and against self-incrimination. We disagree.

In determining whether a plea or admission is intelligently made, the entire record may be examined. (In re Haggins (1977), 67 Ill. 2d 102, 364 N.E.2d 54.) When the record is incomplete or silent, this court should presume that the trial court ruled or acted correctly. (People v. Hamilton (1978), 64 Ill. App. 3d 276, 381 N.E.2d 74.) It is not necessary that a minor be told by the trial judge that his admission waived his right against self-incrimination and his right to confront his accusers. (In re Beasley (1977), 66 Ill. 2d 385, 362 N.E.2d 1024.) Furthermore, the omission of an admonishment outlining the various dispositional orders which the court may render under the Juvenile Court Act (Ill. Rev. Stat. 1989, ch. 37, par. 801 — 1 et seq.) does not deprive the minor of due process of law. In re Tingle (1977), 52 Ill. App. 3d 251, 367 N.E.2d 287.

The instant common law record contains the arraignment order, which indicates that the trial judge advised the respondent and his mother of “the nature of the allegations, their rights in the proceedings, and the possible dispositions.” While the respondent argues that this is merely “boilerplate language” which does not insure that he was so advised, we believe we must respect the trial judge’s signature on the order which, in effect, attests that he did so advise the respondent. Similarly, the adjudication order, also signed by the trial judge, indicates that the respondent understood “the possible consequences of his admission.”

Furthermore, when the respondent indicated at the adjudicatory hearing that he had not understood what his counsel had just said, the trial judge engaged in the following exchange with him:

“THE COURT: Miss Lucas [defense counsel] tells me you want to admit that you committed the crime of unlawful use of weapons, unlawful possession of firearms, battery on a Deborah — I’m sorry, upon an Alexis Tilton by throwing a bottle through a windshield of Deborah Ginn’s car, disorderly conduct by threatening Deborah Ginn, and also with striking Amy Bricker with your open hand. Is that what you wish to do?
THE MINOR: Yes.
THE COURT: Now, if you plead guilty today to these crimes, you’ll be giving up your right to a trial. Do you understand that?
* * *
THE MINOR: Yes.
THE COURT: Has anybody including Miss Lucas or your mother or anybody at Gift or anybody at all forced or coerced you in any way to plead guilty?
THE MINOR: No.”

The judge then questioned the respondent’s mother, who indicated that she had no objection to him pleading guilty. The respondent’s attorney indicated that she was satisfied that there was a factual basis for the admissions. The trial judge personally questioned the respondent about each count in the petition. The judge then concluded that the respondent’s plea was voluntary, that there was a factual basis for the plea, that he had waived his rights and that he understood the possible consequences of his plea. Based on the entire record, we find that the respondent’s admissions were intelligently made.

The respondent also argues that the trial judge abused his discretion in committing him to the juvenile division of the Department of Corrections, because of his age, lack of prior delinquencies, the misdemeanor nature of the charges and the recommendations of all concerned that he be placed in a juvenile home for a short duration.

It is well settled that the disposition of a juvenile rests within the sound discretion of the trial judge and will not be overturned unless it is contrary to the manifest weight of the evidence. (In re T.M. (1984), 125 Ill. App. 3d 859, 466 N.E.2d 1328.) In determining whether a minor should be committed to the juvenile division of the Department of Corrections, a trial judge may properly consider the protection of the public and inadequate parental or guardian supervision. In re V.B. (1989), 178 Ill. App. 3d 842, 533 N.E.2d 1150.

In the instant case, the respondent committed several violent and potentially very dangerous acts, regardless of their classification as misdemeanors. Clearly, the trial judge was impressed with the danger the respondent posed to society. The trial judge’s following remarks are instructive in this regard:

“THE COURT: Boy, if I ever saw a more dangerous situation, I can’t recall. You are something. You are a one-man little crime wave. You don’t respect people. You threaten and beat people and scare them, and then you get guns and you run away.
You are not in control of your parent. You are a definite number one serious threat to this community, not to mention being out of the control of your parent.
Ms. Lucas is free to call this a bunch of misdemeanors. That may be technically true, but this is the kind — these are the kind of offenses that cause the citizens of this community not to be able to sleep safely.
What is this attacking a woman and a child in a car, screaming racial epithets at them, beating up girls because you want to have sex with them, and then getting possession of a weapon. At the same time, you are just running the streets, out of the control of your mother.
Number one, I find [your mother] has no control over you.
Number two, I find you are a danger to the citizens of Peoria.”

We find that there was ample evidence in the record to support the trial judge’s remarks and to support the order committing respondent to the Department of Corrections.

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

Affirmed.

STOUDER and GORMAN, JJ., concur.


author: JUSTICE McCUSKEY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. ROBERT AYRES et al., Defendants-Appellees.
    Third District
    Nos. 3—91—0450, 3—91—0537 cons.
    Opinion filed April 30, 1992.
    Edward Burmila, Jr., State’s Attorney, of Joliet (John X. Breslin, Robert M. Hansen, and Nancy Rink Carter, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Joseph C. Polito, of Joseph C. Polito, Ltd., of Joliet, for appellee Robert W. Ayres.

      James R. Brumund, of Brumund, Belom, Jacobs & Singer, of Joliet, for appellee Robert Brockett.
   JUSTICE McCUSKEY

delivered the opinion of the court:

The defendants, Robert Ayres and Robert Brockett, were charged with driving under the influence of alcohol (DUI) (Ill. Rev. Stat. 1989, ch. 951/2, par. 11 — 501). Both defendants took breathalyzer tests and thereafter filed motions to suppress the test results in their separate DUI proceedings. The trial court granted the motions, finding in each case that the defendant’s consent to the breathalyzer test was involuntary. The State appeals both cases. This court ordered the consolidation of these appeals because they raise a common claim. We now reverse the trial court’s suppression orders.

Both cases involve situations where the defendants were driving vehicles on a private parking lot when they struck other automobiles. In both cases, they were given the standard motorist’s warning (Ill. Rev. Stat. 1989, ch. 951/2, par. 11 — 501.1(c)) and each consented to a breathalyzer test. The tests disclosed blood-alcohol concentrations of .23 in Ayres and .10 in Brockett.

The statutory summary suspensions of defendants’ driver’s licenses were rescinded by the trial court following hearings based on the fact that the implied consent statute is inapplicable to individuals who drive on private property. See People v. Kissel (1986), 150 Ill. App. 3d 283, 501 N.E.2d 963.

In Kissel, the court held that the legislature has limited the application of the implied consent statute solely to persons who drive or have physical control of motor vehicles upon public highways. The court found the implied consent statute was not applicable to cases where the evidence was undisputed that the accused was only observed driving upon a privately owned parking lot. However, in Kissel, the court noted that DUI could be committed upon private property because the legislature had not limited the DUI statute solely to public highways.

In the instant appeals, it was undisputed that both defendants were only observed driving on privately owned parking lots. Therefore, based on these facts, we find the trial court was correct in rescinding the summary suspension orders because the implied consent statute did not apply to either defendant.

Thereafter, during the DUI proceedings, the defendants filed motions to suppress evidence. The trial court granted the defendants’ motions and suppressed the breathalyzer results. The trial court, in granting the motions, found that the defendants had been misadvised by the police concerning the legal consequences of their refusal to take the breathalyzer tests. The trial court noted the defendants were not advised by the police: (1) that the implied consent statute did not apply to driving on private property, and (2) if they refused to take the breathalyzer test, there would be no adverse consequences resulting from the refusal.

On appeal, the State contends that the trial court erred in suppressing the breathalyzer test results. The State argues that in a DUI prosecution the trial court is not required to determine whether the defendant voluntarily consented to the test. We agree.

Voluntary consent is not a prerequisite to the admissibility of breathalyzer results in a DUI prosecution. A reviewing court need only determine whether the administration of a breath test without the defendant’s informed consent ran afoul of constitutional safeguards. A warrantless and involuntary test of an individual’s bodily substances does not violate any constitutional right so long as the search was supported by probable cause, the evidence was of an evanescent nature, and the means and procedures employed in taking the substance were reasonable. People v. Byrd (1991), 215 Ill. App. 3d 468, 574 N.E.2d 1269. See also People v. Franciskovich (1990), 202 Ill. App. 3d 693, 560 N.E.2d 19; People v. Giere (1989), 192 Ill. App. 3d 520, 548 N.E.2d 1104; People v. Todd (1975), 59 Ill. 2d 534, 322 N.E.2d 447.

In Byrd, the court observed that “[p]rior to 1982, section 11— 501(c)(3) of the Illinois Vehicle Code (Vehicle Code), provided that ‘[e]vidence based upon a chemical analysis of blood, urine, breath or other bodily substance shall not be admitted unless such substance was procured and such analysis made with the consent of the person as provided by this Chapter.’ ” (Byrd, 215 Ill. App. 3d at 470, 574 N.E.2d at 1270, quoting Ill. Rev. Stat. 1981, ch. 951/2, par. 11— 501(c)(3).) The court further observed that the consent requirement of section 11 — 501 was abolished by the General Assembly effective January 1, 1982. Therefore, the court reasoned that the statute no longer provided a restriction on compulsory tests of bodily substances. Finally, the Byrd court concluded that while the current codification of section 11 — 501.1(c) articulates the civil consequences of a refusal to submit to testing, it in no way suggests that consent is a necessary requirement for the admissibility of the test results in a DUI prosecution.

We are aware that our adoption of the law and reasoning in the cases cited above may conflict with some of our prior decisions, specifically, People v. Monckton (1989), 191 Ill. App. 3d 106, 547 N.E.2d 673.

In Monckton, this court found that the legislature’s enactment of section 11 — 501.1(c) reflected its desire to prohibit involuntary blood and breath tests in DUI proceedings as well as in statutory summary suspension proceedings. We note, however, as was correctly pointed out in Byrd, that section 11 — 501.1(c) is separate and distinct from section 11 — 501. Therefore, we find the consent necessary for a proceeding under section 11 — 501.1(c) is irrelevant to proceedings conducted pursuant to section 11 — 501. To the extent that Monckton can be read to the contrary, it is hereby overruled.

We find, based on our review of the record, that sufficient probable cause exists to support the use at trial of the breathalyzer tests. The police officers in each case determined that the defendants had caused accidents while driving under the influence of alcohol. We note that the evidence was evanescent in nature because alcohol in a DUI suspect’s blood begins to dissipate shortly after the individual stops consuming alcohol. There is no time to seek out a magistrate to obtain a search warrant. (Schmerber v. California (1966), 384 U.S. 757, 16 L. Ed. 2d 908, 86 S. Ct. 1826.) Finally, we conclude that the breathalyzer tests required by Illinois law are minimally intrusive and a reasonable means to measure a suspect’s blood-alcohol level. Just as the court concluded in Byrd, we find “that defendant’s consent, informed or otherwise, was not statutorily or constitutionally required for the arresting officer to administer a breath test.” (Byrd, 215 Ill. App. 3d at 471-72, 574 N.E.2d at 1271.) Accordingly, we hold the trial court erred in suppressing the use of the breathalyzer tests in the DUI proceedings.

For the reasons indicated, the judgments of the circuit court of Will County are reversed.

Reversed.

GORMAN and HAASE, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RONALD W. UPPOLE, Defendant-Appellant.
    Third District
    No. 3—91—0280
    Opinion filed April 9, 1992.
    Rehearing denied June 2, 1992.

      Thomas W. Funk, of Lincoln, for appellant.
    Erik I. Blanc, State’s Attorney, of Pekin (John X. Breslin and Gary F. Gnidovec, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE HAASE

delivered the opinion of the court:

The defendant was convicted of the murder of his wife and sentenced to 50 years in the Department of Corrections. The defendant appeals. He claims the trial court erred in conducting voir dire, failed to provide him reasonable access to a law library, and the court’s sentence was excessive. We affirm.

On August 2, 1978, the defendant shot and killed his estranged wife, Norma Uppole. The defendant entered the couple’s former marital residence with a gun and waited for his wife to return. When the wife returned home, the defendant shot her three times. The defendant then brought his daughter into the room and shot the wife seven more times. The defendant then handed the gun to his daughter and asked her to take his life. The daughter refused. The defendant was ultimately arrested and indicted for the murder of his wife. Pursuant to a stipulation by the parties, the defendant was held unfit to stand trial and was committed to the Illinois Department of Mental Health and Developmental Disabilities. After numerous hearings over a span of 12 years, the defendant was finally found fit to stand trial. The defendant was reindicted for the murder of his wife and pled not guilty.

On May 22, 1990, the defendant filed a motion to proceed pro se. The court granted the defendant’s motion, but ordered the office of the Tazewell County public defender to be available and ready as standby counsel to assist the defendant at his trial. The court admonished the defendant that the charges he faced were serious and he would be given no special treatment. The defendant stated he understood and stated he still wished to proceed pro se. During the course of the proceedings, the court admonished the defendant several times that standby counsel was available to take over his defense and that he would receive no special treatment from the court. The defendant persisted in defending himself.

On June 14, 1990, the defendant filed a motion requesting the court to order standby counsel to bring him legal materials for his defense at the Tazewell County jail. The court denied the motion, stating “no public defender will ever be appointed by this court to be a go-fer.” Instead, the court informed the defendant that he could file a list of books he desired and the books would be delivered to him at the jail. The defendant then requested a copy of the entire six-volume set of the Illinois revised statutes. The court refused the defendant’s request, but ordered that “any specific area that he feels he needs will be provided and always has been provided within 24 hours.”

On September 10, 1990, the case was called for jury trial. The court ruled that it would conduct all questioning of prospective jurors, but would allow the parties to submit written questions they wished the court to ask. The defendant submitted two pages of written questions. The first page the judge agreed to cover. The second page the court refused to ask as proffered. The court ruled these questions were “clearly outside of what normally is asked in a criminal case.” The second page of the defendant’s proffered questions read as follows:

(1) “Do you believe that the Bible is true in its entirety or all of its words?”
(2) “Do you believe there is a spirit world completely alive and active at this time?”
(3) “Do you believe a spirit can manipulate a person to do its desires?”
(4) “Do you believe there is a spirit world that is completely evil in its actions?”

Instead, the court asked prospective jurors about the general subject matter presented by the defendant’s questions:

(1) “Do you consider yourself a religious person?”
(2) “Are you familiar with the Bible?”
(3) “And do you believe that regardless of what your religious background or training has been, whatever your familiarity with the Bible, that you can follow the law even if it might conflict with what you believe the Bible says?”

At trial, the defendant testified that he saw the face of a pernicious spirit and that he was turned over to the control of the spirit. It was this spirit, the defendant stated, that made him fire the first three shots at his wife; the seven shots he fired after bringing his daughter into the room, however, were fired as a voluntary act according to the defendant. On cross-examination, the defendant also admitted that the summer of 1990 was the first time he had mentioned the pernicious spirits because he could not find a Christian psychiatrist to help him bring it out before that time.

The defendant called Virgil Hartstock, who holds an associate’s degree in theology, to read certain passages from the Bible regarding pernicious spirits and their ability to take control of humans. The defendant then called Rev. Bobbie Lounsberry, the defendant’s pastor at the time of the murder, who testified that the defendant felt helpless in his marital situation and that he had sought help from Lounsberry. The defense then rested. The jury was instructed as to the law. The jury returned a verdict of guilty.

At sentencing, the State requested the court to take judicial notice that at the time of the murder, a criminal complaint was pending against the defendant charging the defendant with aggravated assault and battery against his wife. The court took notice of the pending charges and found that this was an aggravating factor. The court also found there were other aggravating factors, including the serious harm caused to the defendant’s daughter, the defendant’s history of criminal activity, the necessity to deter others from committing this type of crime, and that the offense was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty. The court sentenced the defendant to 50 years in the Department of Corrections. The defendant raises several contentions of error.

First, the defendant claims the trial court erred in conducting voir dire by failing to ask prospective jurors their feelings about the spirit world. As the defendant points out, if a prospective juror were to indicate he did not believe in pernicious spirits, “[T]hen clearly that juror would be predisposed against his defense — if there is no spirit world then certainly there are no spirits who could have taken control of the defendant’s actions.” Although logically correct, the defendant’s argument is utterly without legal merit.

It is well established that the purpose of voir dire is to select a fair and impartial jury; it is not to be used as a means of preeducating or indoctrinating a jury or as a means of impaneling a jury with particular predispositions. (People v. Teague (1982), 108 Ill. App. 3d 891, 439 N.E.2d 1066.) In the case at bar, the defendant argues he had a right to a jury predisposed to believe in the spirit world. No such right exists. The trial court inquired as to the venire’s general feelings about religion and the Bible. The questions posed by the court were fairly worded and sufficiently thorough to uncover any possible biases or prejudices of the venire. In sum, the trial court did not err in conducting voir dire.

Next, the defendant claims he was denied the opportunity to effectively represent himself because he had limited access to a law library and legal materials. The defendant bases this claim on the court’s refusal to provide him with all six bound volumes of the Illinois revised statutes.

In People v. Heildelberg (1975), 33 Ill. App. 3d 574, 338 N.E.2d 56, this court noted that an incarcerated pro se defendant does not possess a right of access to a complete jail library:

“Where a prisoner in custody knowingly and voluntarily elects to manage his own defense, he relinquishes many of the traditional benefits associated with the right to counsel. The constitution does not require in the case of a prisoner who elects to represent himself pro se that he be exempted from regular jail procedures and searches, and no duty exists, where such facilities are not commonly available in a common jail, to provide him law books, or private telephones, or unlimited access to witnesses, investigators or other items he may feel necessary. By electing to represent himself, a prisoner in custody may not expect favored and privileged treatment even though the result may be that he is less effective as his own attorney.” 33 Ill. App. 3d at 591.

See also People v. George (1980), 85 Ill. App. 3d 443, 406 N.E.2d 939.

In the case at bar, the court entered a standing order that the defendant need only write down the area or areas of the law he wished to research, or specific citations to the materials he desired, and the materials would be delivered to the jail within 24 hours. The only request that was not honored was for the entire six-volume set of the Illinois revised statutes. The trial judge gave the defendant a copy of West’s Illinois Criminal Law and Procedure (West Publishing Co., 1991). This gave the defendant access to the Criminal Code of 1961 (Ill. Rev. Stat. 1991, ch. 38, par. 1 — 1 et seq.), and the Illinois Supreme Court rules on criminal proceedings (134 Ill. 2d Rules 401 through 663). In addition, the trial judge gave the defendant his own personal copy of E. Cleary & M. Graham, Handbook of Illinois Evidence (3d ed. 1979). The defendant made requests for copies of certain criminal cases and these cases were provided to him within 24 hours. Although we decline to set specific guidelines for exactly what type of access to legal materials an incarcerated pro se defendant must be afforded, we find that the access the trial court afforded the defendant in the case at bar was well within constitutional requirements.

In making this ruling, we feel it is important to note that the trial court ordered standby counsel to be ready to take over the defendant’s defense at any point in the proceedings. The defendant was repeatedly admonished that the charges he faced were serious and that standby counsel was ready to conduct his defense. Nonetheless, the defendant rejected the services of the Tazewell County public defender and insisted on proceeding pro se. In Faretta v. California (1975), 422 U.S. 806, 45 L. Ed. 2d 562, 95 S. Ct. 2525, the United States Supreme Court ruled that defendants have a constitutional right to proceed pro se. The Court also recognized that without the aid of counsel, the ability of a defendant to present his case may also suffer; “When an accused manages his own defense, he relinquishes, as a purely factual matter, many of the traditional benefits associated with the right to counsel.” 422 U.S. at 835, 45 L. Ed. 2d at 581, 95 S. Ct. at 2541.

In a similar vein, the United States Supreme Court in Bounds v. Smith (1977), 430 U.S. 817, 52 L. Ed. 2d 72, 97 S. Ct. 1491, ruled that an incarcerated defendant must be provided with either an adequate law library or adequate assistance from a person trained in the law. In the case at bar, the defendant was repeatedly offered the services of a person trained in the law. The defendant makes no claim that the person appointed was incompetent or otherwise unable to defend him properly. Instead, the defendant claims he possessed the right to reject the services of counsel and also to have access to a wide range of legal materials. As the Supreme Court noted in Faretta and Bounds, and as this court noted in Heildelberg, no such right exists.

The defendant also claims the court erred in not ordering standby counsel to deliver law books to him at the county jail. The defendant has failed to support this contention with argument or citation to authorities as required by Supreme Court Rule 341(e)(7) (134 Ill. 2d R. 341(e)(7)), and this contention, therefore, is deemed waived. People v. Sanford (1983), 116 Ill. App. 3d 834, 842.

Even if we were to consider this argument on the merits, the defendant would not prevail. A trial court possesses broad discretion in relation to the appointment of counsel for advisory or other limited purposes. (People v. Partee (1987), 157 Ill. App. 3d 231, 247, 511 N.E.2d 1165, 1177.) In Partee for example, the defendant decided to proceed pro se, but requested the court to appoint standby counsel to act as his legal advisor. The court refused, noting that the defendant had the right either to be represented by counsel or proceed pro se, but not both. (See McKaskle v. Wiggins (1984), 465 U.S. 168, 177, 79 L. Ed. 2d 122, 132-33, 104 S. Ct. 944, 950.) On appeal, the First District Appellate Court affirmed the trial court's ruling and noted that a trial court’s rulings regarding duties and functions of standby counsel will not be disturbed on appeal unless they constitute an abuse of discretion. (Partee, 157 Ill. App. 3d at 247, 511 N.E.2d at 1176.) In the case at bar, the trial court did not abuse its discretion in refusing to order standby counsel to deliver books to the defendant in the Tazewell County jail. Standby counsel was an attorney licensed to practice law, not a delivery boy.

Finally, the defendant claims the trial court erred in relying on improper factors in sentencing the defendant to an extended term. Specifically, the defendant claims the court erred in considering (1) the fact his wife was the complaining witness against him in a pending criminal case; (2) the fact the defendant shot the wife seven times while his daughter looked on; and (3) the fact the defendant had a history of violent criminal behavior towards his wife. The defendant’s contentions are without merit.

Sentencing is a matter of judicial discretion, and absent an abuse of discretion on the part of the trial judge, a sentence will not be altered upon review. (People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541.) In the case at bar, the trial court found that the defendant murdered his wife in a heinous, cold-blooded and shocking manner. A review of the record reveals that the court was particularly disturbed by the fact that after the defendant shot the wife in an upstairs bedroom, he went downstairs and dragged his young daughter to the bedroom, held her there against her will, and then shot the wife seven more times while the daughter looked on. When combined with the other factors noted by the trial court, the court's sentence was entirely proper.

Accordingly, the judgment of the circuit court of Tazewell County is hereby affirmed.

Affirmed.

BARRY, P.J., and McCUSKEY, J., concur.


author: JUSTICE RAKOWSKI

text:
    CATERPILLAR, INC., Appellant, v. THE INDUSTRIAL COMMISSION et al. (David C. Hankins et al., Appellees).
    Third District (Industrial Commission Division)
    No. 3—91—0154WC
    Opinion filed March 27, 1992.
    Rehearing denied June 2, 1992.

      Robert F. Fahey, of Peoria, for appellant.
    Roland W. Burris, Attorney General, of Springfield (Robert J. Malooly, Assistant Attorney General, of Chicago, of counsel), for appellee Jerry Cosentino.
    Arthur R. Kingery, of Strodel, Kingery & Duree, Associated, of Peoria, for appellee David C. Hankins.
   JUSTICE RAKOWSKI

delivered the opinion of the court:

The employer, Caterpillar, Inc. (employer), appeals from an order of the circuit court of Marshall County confirming an Illinois Industrial Commission (Commission) decision finding that David C. Hankins (claimant) had sustained a permanent 100% loss of the use of his right hand. The Commission’s decision awarded claimant temporary total disability (486/7 weeks), permanent partial disability (190 weeks) and interest pursuant to section 19(n) of the Workers’ Compensation Act (Ill. Rev. Stat. 1989, ch. 48, par. 138.19(n)). We affirm.

Claimant testified that while working at Caterpillar on September 13, 1982, he sustained a crush-type injury to his right hand when it was caught between a jig-mill and a 2,000-pound engine block which was hanging from a hoist. Claimant reported the injury to his foreman, Paul Amet, but did not go to first aid until two days later.

On September 19, 1982, claimant went to Methodist Hospital, where X rays were taken and he was told to “see an orthopedic right away.” The following Monday, claimant returned to Caterpillar and was treated by Dr. Cooper, who casted claimant’s right hand and referred him to Drs. Wood, Russo and Puentes. Dr. Puentes subsequently referred claimant to the Mayo Clinic in Rochester, Minnesota, where claimant was treated by Dr. Beckenbaugh. Dr. Beckenbaugh diagnosed plaintiff’s condition as Secretan’s disease and performed surgery on claimant’s right hand. On cross-examination, claimant denied injuring his right hand while operating a potato digger the Saturday before the accident at work but stated “I probably told them I was sore. My whole body was sore.”

Two co-employees, Robert Wilkins and Bill Traver, testified that they were present when claimant sustained the injury and neither noticed him having any problems with his right hand prior thereto.

Merle Jenkins, claimant’s neighbor and co-employee at Caterpillar, testified that he saw claimant on Saturday, September 11, 1982. According to Jenkins, claimant said “he had hurt his hand digging potatoes that day.” Jenkins also stated that claimant told him “he was going to go to first aid Monday.”

Patrick Richmond, another neighbor, testified that he also saw claimant on Saturday, September 11, 1982. According to Richmond, claimant stopped by his house at about 4 p.m., showed Richmond a knot on the back of his right hand and said that while he was plowing potatoes he “pulled something or something stung me in there.” Richmond also stated that approximately one week after this conversation claimant told him that he went to Caterpillar medical and told them that he had hit his hand at work. When Richmond questioned claimant as to whether that was not the same injury that had occurred last week when he was digging potatoes, claimant said “No, I hurt it at work. *** I turned it into Caterpillar. *** [T]hey will take care of it.”

In addition to claimant, those present during the potato harvest were his wife, Orla, his father-in-law, Larry Stroup, and his daughter, Denise Salisbury. They all testified that claimant did not hurt his hand while digging potatoes. Orla Hankins, who was also present with her husband when they visited the Jenkinses on September 11, 1982, denied that there was any conversation about claimant injuring his hand while digging potatoes.

The only medical testimony in this case was the deposition of Dr. Robert Beckenbaugh of the Mayo Clinic. Dr. Beckenbaugh testified that he surgically removed a fibrous growth from the tendon of claimant’s right hand which was compatible with Secretan’s disease. Dr. Beckenbaugh described Secretan’s disease as a process initiated by a single traumatic injury to the hand which is perpetuated by minor trauma. He explained:

“In Secretan’s disease, there is classically an injury of either minor or major nature to the backside or top of the hand, which results in some bleeding and swelling. Now, in an uncomplicated situation, the blood in the swollen tissues would normally be absorbed and the swelling would go down and the wound would heal. In Secretan’s disease, for reasons which are unclear, but thought to be related to repetitive minor trauma, the swelling, rather than clearing, persists, and bleeding continually recurs, which results then in the formation of a scar tissue mass, rather than the normal process of healing, which would simply clear the extra tissues in the bloodstream out of the area.”

According to Dr. Beckenbaugh, while the crushing injury claimant sustained at work was not, in and of itself, the cause of Secretan’s disease, it was, to a reasonable degree of medical certainty, the initial injury which gave rise to the condition. He further stated that the repetitive trauma, which in conjunction with the initial injury is the cause of Secretan’s disease, may be minor in nature, such as banging a hand against a door or even bumping it against a book. Finally, Dr. Beckenbaugh said there was nothing in claimant’s case history that would suggest that the repetitive trauma was self-induced.

On appeal, the employer contends that the manifest weight of the evidence in this case does not support a finding that claimant’s Secretan’s disease was proximately caused by a work-related injury. We disagree.

The employer first argues that the manifest weight of the evidence does not support a finding that claimant’s injury occurred at work or that it was accidental. Rather, the employer postulates that claimant’s initial injury did not occur at work but while he was digging potatoes. The employer further argues that even if the initial injury did occur at work, the repetitive trauma leading to Secretan’s disease did not, and/or it was intentionally inflicted.

As was explained O’Dette v. Industrial Comm’n (1980), 79 Ill. 2d 249, 253, 403 N.E.2d 221:

“In a work[er’s] compensation proceeding the claimant has the burden of proving by a preponderance of the evidence the elements of his claim and, in particular, that his injury arose out of and in the course of his employment. [Citations.] It is the function of the Industrial Commission to determine questions of fact and causation [citations], to judge the credibility of witnesses [citations], and to resolve conflicting medical evidence [citations]. Though a court might draw different inferences from the evidence, it is axiomatic that findings of the Industrial Commission will not be reversed unless they are against the manifest weight of the evidence.” (O’Dette, 79 Ill. 2d at 253, citing Phelps v. Industrial Comm’n (1979), 77 Ill. 2d 72.)

The manifest weight of the evidence is that which is the clearly evident, plain and indisputable weight of the evidence. In order for a finding to be contrary to the manifest weight of the evidence, an opposite conclusion must be clearly apparent. Drogos v. Village of Bensenville (1981), 100 Ill. App. 3d 48, 53, 426 N.E.2d 1276.

In applying these well-established principles to the case sub judice, we are in agreement with the trial court. While the employer points to substantial evidence in the record which would support a finding that claimant’s initial injury was a result of the potato-harvesting incident (the testimony of Merle Jenkins and Patrick Richmond), the record also contains substantial evidence that it was not (testimony of claimant, Orla Hankins, Larry Strub and Denise Salisbury). While the employer notes that claimant’s witnesses are all related to him, their credibility, along with that of Merle Jenkins and Patrick Richmond, was for the trier of fact to determine. Similarly, despite certain inconsistencies, we are of the opinion that the record contains ample evidence to support a finding that the initial injury to claimant’s hand occurred on September 13, 1982, while he was working at Caterpillar (the testimony of claimant, Robert Wilkins and Bill Traver).

Further, despite the employer’s arguments to the contrary, the record does not contain any credible evidence which would support a finding that the repetitive trauma giving rise to Secretan’s disease was self-inflicted. The only testimony in the record regarding whether the repetitive trauma was self-inflicted is that of Dr. Beckenbaugh where he states “[tjhere is nothing in our history to suggest that they were consciously self-induced.” In sum, the opposite conclusions suggested by the employer are not clearly evident.

Having found that the manifest weight of the evidence is sufficient to support findings that claimant’s initial injury occurred at Caterpillar and was not intentional, we turn to the employer’s contention that claimant’s disability was not work-related. The argument is that because Secretan’s syndrome is a disease caused by repetitive trauma and because it is undisputed that the repetitive trauma occurred at a time when claimant was not employed, then it follows that claimant’s disability did not arise as a result of his employment at Caterpillar. In support of this argument, employer relies on a statement made by Dr. Beckenbaugh to the effect that the cause of the bleeding which led to the formation of scar tissue was not the accident of September 13, 1982. It must be remembered, however, that Dr. Beckenbaugh also stated that this same injury gave rise to the condition which made Secretan’s disease possible. We do not find any inconsistency in these two statements. While Secretan’s disease is caused by repetitive trauma, it is the initial injury that gives rise to a condition that allows minor repetitive trauma to cause scar tissue. As we view Dr. Beckenbaugh’s testimony, he is saying that Secretan’s disease is a result of an initial injury followed by minor, repetitive trauma. Both must be present. There must be an initial blow of sufficient magnitude to cause swelling and bleeding followed by minor, repetitive trauma. While the repetitive trauma, in and of itself, may be insufficient to cause swelling or bleeding, it is sufficient to perpetuate the swelling and bleeding caused by the initial injury.

This being the case, it becomes clear that claimant’s disability is compensable, even though it was caused by non-work-related repetitive trauma. In order to constitute an accidental injury within the meaning of the Workers’ Compensation Act (Ill. Rev. Stat. 1989, ch. 48, par. 138.1 et seq.), the claimant need only show that some act or phase of the employment was a causative factor of the resulting injury. (County of Cook v. Industrial Comm’n (1977), 69 Ill. 2d 10, 370 N.E.2d 520.) This is a fact question to be determined by the Industrial Commission, and we will not substitute our judgment for that of the Commission on the question of causation unless the Commission’s decision is against the manifest weight of the evidence. Illinois Valley Irrigation, Inc. v. Industrial Comm’n (1977), 66 Ill. 2d 234, 362 N.E.2d 339. According to Professor Larson:

“When the primary injury is shown to have arisen out of and in the course of employment, every natural consequence that flows from the injury likewise arises out of the employment, unless it is the result of an independent, intervening cause attributable to claimant’s own intentional conduct.” 1 A. Larson, Workmen’s Compensation §13.00, at 3 — 502 (1990).

In explaining this principle, Professor Larson cites to a Utah case, Perchelli v. Utah State Industrial Comm’n (1970), 25 Utah 2d 58, 475 P.2d 835, where claimant hurt his back at work and several years later suffered a herniated disc triggered by sneezing. The trial court’s finding that the sneezing episode was an independent cause of claimant’s disability was held to be error on appeal. Professor Larson explains that an injury is compensable:

“[I]f the triggering episode is some nonemployment exertion like raising a window or hanging up a suit, so long as it is clear that the real operative factor is the progression of a compensable injury, associated with an exertion that in and of itself would not be unreasonable in the circumstances.” 1 A. Larson, Workmen’s Compensation, §13.11(a), at 3 — 516 through 3 — 517 (1990).

While employer strongly relies on Oseo Drug, Inc. v. Industrial Comm’n (1967), 36 Ill. 2d 361, 223 N.E.2d 105, we find it distinguishable. In Oseo Drug, Inc., the claimant contended that while working she received a blow to her hand which caused a hematoma which developed into cáncer. The employer produced four experts, all with considerable experience, who testified that there was no causal connection between the blow suffered by claimant and the tumor. While Dr. Keenan did testify on claimant’s behalf, he had no connection with the diagnosis or treatment of claimant and could only express the opinion that “there might or could be a cause or relationship between the injury and the cancer.” (Emphasis added.)

In Osco Drug, Inc., the supreme court found that Dr. Keenan’s testimony was not credible as a matter of law. Importantly, in Osco Drug, Inc., there was ample testimony that the blow received by claimant could not have caused the cancer. In the case sub judice, the sole and undisputed medical testimony is that, to a reasonable degree of medical certainty, the injury claimant sustained at work gave rise to the condition which caused Secretan’s disease.

The employer’s final contention is that claimant’s position must fail because the record does not contain any evidence regarding the repetitive trauma which caused the claimant’s Secretan’s disease. While this is true, it does not obtain a different result. The employer does not dispute that the only medical evidence in the record diagnosed claimant’s disability to be a result of Secretan’s disease. Also undisputed is the fact that Secretan’s disease is caused by repetitive trauma following an initial injury. The fact that claimant sustained repetitive trauma is therefore axiomatic and in no need of proof. Given that the record sub judice does not contain any evidence that the repetitive trauma was self-induced or associated with an exertion that, in and of itself, would be unreasonable under the circumstances (1 A. Larson, Workmen’s Compensation §13.11(a), at 3 — 516 through 3 — 517 (1990)), we fail to see how the lack of evidence concerning the cause, nature and extent of claimant’s repetitive trauma could defeat his claim.

We also find unpersuasive the employer’s argument that because the repetitive trauma suffered by claimant caused swelling and bleeding, it could not have been minor or insignificant. It must be remembered, however, that Dr. Beckenbaugh never stated that it was the repetitive trauma that caused the swelling or bleeding. What Dr. Beckenbaugh did say was that minor, repetitive trauma such as banging the hand against a door or even a book was sufficient to perpetuate the swelling and bleeding caused by the initial injury. While employer cites Gallego v. Industrial Comm’n (1988), 168 Ill. App. 3d 259, 522 N.E.2d 692, we do not find it to be of any assistance. In Gallego, the only Illinois case we have been able to find involving Secretan’s disease, the record contains substantial credible evidence to the effect that the claimant’s injury was self-induced.

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

Affirmed.

McCULLOUGH, P.J., and WOODWARD, STOUDER, and LEWIS, JJ., concur.