text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PAUL L. JACKSON, Defendant-Appellant.
    Third District
    No. 3—88—0545
    Opinion filed April 17, 1989.

      Verlin R. Meinz, of State Appellate Defender’s Office, of Ottawa, for appellant.
    John A. Barra, State’s Attorney, of Peoria (Judith Z. Kelly, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE SCOTT

delivered the opinion of the court:

A jury found the defendant, Paul L. Jackson, guilty of residential burglary (Ill. Rev. Stat. 1987, ch. 38, par. 19 — 3(a)). The trial court sentenced him to the minimum four-year term of imprisonment required by law. (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8—l(a)(4).) He appeals, asking this court to reduce the degree of his offense.

The evidence showed that on the evening of June 2, 1986, Gail Scholl discovered that $5 to $6 in change, some cans of soup, and some candy bars were missing from her kitchen cabinet. Upon discovering that the items were missing, she called the police. Crime scene technician Gary Siebenthal responded to the call. Siebenthal was able to lift from the change jar a fingerprint matching the defendant’s right ring finger.

The evidence also showed that the defendant lived in an apartment adjacent to the victim’s apartment. The defendant testified at trial that he worked for the landlord and had keys to all of the apartments. He claimed that he was working for the landlord on the day in question and entered the Scholl apartment to complete some work on her toilet. He admitted that while he was in her apartment he took money from a jar.

Gail Scholl testified that her landlord had explained to her that the defendant was his handyman. She noted that the defendant had a key to her apartment and stated that approximately one or two weeks before the items were stolen she had asked the defendant to come into her apartment to fix her toilet. Scholl testified that the defendant did not have permission to be in her apartment at any other time.

Detective John Mingus of the Peoria police department testified that he spoke with the defendant on March 4, 1988, almost a year and a half after the incident. Mingus stated that he asked the defendant about the time he entered the Scholl apartment without permission. Detective Mingus recalled that the defendant told him that he was doing some odd jobs at the apartment complex on the day in question. Mingus stated that the defendant further told him that he became hungry, entered the Scholl apartment, took $5 or $6 in change from a jar in the apartment, and went to a convenience store to buy food.

Following closing arguments, jury instructions were given on the offense of residential burglary, but not on any lesser included offenses of that crime. After the jury returned a guilty verdict, a hearing was held on the defendant’s post-trial motion. One of the defendant’s allegations in the motion was that he had not understood the concept of lesser included offenses. The defendant’s motion was denied.

At the defendant’s sentencing hearing, the court noted that the mandatory minimum sentence for residential burglary was four years (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8—1(a)(4)), and that under the laws of Illinois neither a period of probation, nor a term of periodic imprisonment, nor a conditional discharge was an appropriate disposition for the offense (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 5— 3(c)(2XG)). The judge then stated that “the court has no choice in pronouncing a sentence in this case other than the penitentiary, and no less than four years. If the law were otherwise, the court would seriously consider some sentence less than that which is required.”

On appeal, the defendant asks this court to mitigate his unduly harsh sentence by reducing the degree of his offense from residential burglary to theft. In support of his argument, the defendant contends that the evidence was weak on the element of whether he intended to commit a felony when he entered the apartment. He also notes that the trial court reluctantly imposed the mandatory sentence.

Illinois Supreme Court Rule 615(b)(3) (107 Ill. 2d R. 615(b)(3)) authorizes a reviewing court to reduce the degree of an appellant’s offense. The power granted by Supreme Court Rule 615(b)(3) should be exercised with caution and circumspection, but the fact that such powers have been granted to a reviewing court is indicative of the fact that situations arise where an appellate court must in the interest of the fair and uniform administration of justice exercise the powers granted by the rule; among the relevant factors in assessing whether a reduction of an offense is warranted are whether an evidentiary weakness exists and whether the trial judge expressed dissatisfaction with imposing the mandatory sentence. (People v. Coleman (1979), 78 Ill. App. 3d 989, 398 N.E.2d 185.) However, an expression of dissatisfaction by the trial judge regarding the sentence to be imposed will not by itself mandate that the degree of the offense be reduced, and we will not reduce the degree of the offense solely out of merciful benevolence since there must be some evidentiary weakness before a reviewing court will act. People v. Meadows (1981), 92 Ill. App. 3d 1028, 416 N.E.2d 404.

An analysis of the evidence in the instant case discloses evi-dentiary weaknesses regarding whether the defendant possessed the requisite intent. In order to sustain a residential burglary conviction, the State must prove that the defendant possessed the intent to commit a theft at the time of his unauthorized entry into the victim’s dwelling. (People v. Morrison (1983), 114 Ill. App. 3d 828, 449 N.E.2d 859.) In the instant case the evidence revealed that the defendant had periodically done maintenance work at the apartment building. The victim testified that she had asked the defendant to do some work for her on her toilet about a week or two before the crime. Although she stated that the defendant did not have permission to enter her apartment or to take any items, she did not indicate whether the defendant had started working at the time of her request or whether any further work was needed.

The State also elicited testimony from Detective Mingus, who stated that the defendant told him that he was working at the apartment complex and that he became hungry, entered the apartment, looked in the refrigerator and kitchen cabinet, then took $5 or $6, which he used to buy food. However, Mingus admitted on redirect examination that he could not recall whether the defendant had told him that he was doing the work outside or inside the apartment on the day in question.

The evidence at issue here is not fatally weak to the State’s case, since intent may be proved circumstantially by inferences drawn from the defendant’s conduct (People v. Fisher (1980), 83 Ill. App. 3d 619, 404 N.E.2d 859), and since the issue of whether the requisite intent existed is a question for the trier of fact (People v. Morrison (1983), 114 Ill. App. 3d 828, 449 N.E.2d 859). We note, however, that the evidence is nevertheless weak. Furthermore, the evidentiary weakness is not the result of conflicting accounts of the incident by the State’s witnesses on the one side and the defendant on the other. In other words, we are not dealing with a mere issue of credibility. Rather, the State’s evidence showed little inconsistency with the defendant’s testimony that he formulated the requisite intent after he entered the apartment to perform maintenance work.

Having examined the evidence and evaluated it in light of the trial judge’s statement that he would have seriously considered a lighter sentence had it been available, we conclude that this is one of those rare instances which calls for the invoking of Supreme Court Rule 615(b)(3). In reaching this conclusion, we also note that the defendant had no prior criminal record, that he apparently entered the apartment in the afternoon hours when the victim was not home, that he had a key to the apartment, that he took just a small amount of money and food, and that he had been asked by the victim a week prior to the incident to do some maintenance work for her.

The defendant has asked this court to reduce the degree of the offense from residential burglary to theft. However, our power to reduce the degree of an offense is only available when a lesser included offense is involved. (People v. Pettit (1983), 114 Ill. App. 3d 876, 449 N.E.2d 1044.) Theft is not a lesser included offense of residential burglary. (People v. Schmidt (1988), 126 Ill. 2d 179.) We therefore reduce the degree of the defendant’s offense to criminal trespass to a residence (Ill. Rev. Stat. 1987, ch. 38, par. 19—4) and remand the cause for resentencing.

The defendant, in his other issue on appeal, raises certain alleged errors occurring at his trial. Since the defendant did not object to these alleged errors at trial, nor did he raise them in a post-trial motion, we find that he has waived any errors. People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.

Accordingly, we reduce the degree of the defendant’s offense to criminal trespass to a residence and remand the cause for resenten-cing based on that offense. The remainder of the judgment of the circuit court of Peoria County is affirmed.

Reduced and remanded in part; affirmed in part.

STOUDER and BARRY, JJ., concur.


source: Caselaw Access Project

author: JUSTICE STOUDER,

license: Public Domain

text:
    THE HERGET NATIONAL BANK OF PEKIN, Plaintiff-Appellee, v. SCOTT THEEDE, Defendant-Appellant (Barbara Theede, Defendant).
    Third District
    No. 3—88—0543
    Opinion filed April 20, 1989.

      Harold N. O’Hara, of Peoria (David L. Cover, of counsel), for appellant.
    Bágley, Atherton, Clark & Miller, of Pekin (Louis E. Miller, of counsel), for appellee.
   JUSTICE STOUDER,

delivered the opinion of the court:

Scott Theede appeals from the judgment of the circuit court of Tazewell County, denying his motion to open a judgment by confession. Theede’s affidavit and supplemental affidavit in support of his motion indicate that Theede held a business account with Herget National Bank and was given a $30,000 line of credit. In September of 1986, the bank dishonored a $15,000 check drawn on Theede’s business account. When Theede contacted Jerry Towle, a commercial loan officer for the bank, to determine the bank’s reason for dishonoring the check, Towle informed Theede that his line of credit was depleted. Thinking that the bank had made a clerical error since he had not used his line of credit, Theede, along with his wife, Barbara, and a friend, Harold O’Hara, met with Towle on September 19,1986, to discuss the problem.

At the meeting, Theede was shown a computer printout of multiple loans made to his wife secured by promissory notes which bore the signatures of both Theede and his wife. Theede explained that his signatures were not authorized, and he could not get an explanation for the situation from his wife, who “could only cry.” Though his friend, O’Hara, was an attorney, he gave Theede no legal advice at the time. -

Thereafter, Theede arranged to meet with Towle on September 23, 1986. Theede was concerned about his financial reputation and wanted to convince the bank to honor his check. Towle told Theede that the bank would honor his check if he would sign a promissory note for $60,800, which would consolidate all of the loans made to his wife. Because Theede thought and was led to believe by the bank that he was liable for his wife’s debts, and because he was desperate to stay in the livestock business, he signed the $60,800 consolidation note.

When the note became due on March 23, 1987, Theede met with Towle and paid $800 on the principal plus $3,367.32 in interest. Thereafter, Theede sought legal advice and learned that he was not responsible for the debts of his wife. Accordingly, he ceased payment on the note.

In response, the bank, pursuant to a clause in the note, obtained a judgment by confession against Theede on August 4, 1987. Theede first learned of the judgment when he was served by a citation to discover his assets on November 25, 1987. He then filed his motion to open the judgment by confession. When the court denied his motion, he brought this appeal.

The first issue presented by this case is whether the circuit court erred in concluding that the cognovit note was not used in a consumer transaction. Section 2 — 1301(c) of the Illinois Code of Civil Procedure (the Code) (Ill. Rev. Stat. 1987, ch. 110, par. 1 — 101 et seq.) provides that any power to confess judgment in an instrument used in a consumer transaction “is null and void and any judgment entered by a court based on such power shall be unenforceable.” (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1301(c).) The Code further provides that a loan is a “consumer transaction” if it was made “to an individual for purposes that are primarily personal, family, or household.” Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1301(c).

The pleadings and affidavits filed by both parties indicate that the purpose of the loan at issue was to consolidate prior loans made to Barbara Theede, who allegedly forged her husband’s name as comaker on notes evidencing the prior loans. The prior loans are all either renewal notes or consolidation notes or both. While Theede asserts that the purpose of his .signing for the loan at issue was personal in nature, he does not deny that most of the proceeds from such prior loans are traceable to deposits made to his business account at the bank. Moreover, Theede admits that one reason for his signing the note was to assure that the bank would honor a check which was drawn on his business account.

While he also asserts that he signed because of his concern for his personal financial reputation, he does not deny that his personal financial reputation is indistinct from his financial reputation as a sole proprietor of Theede Livestock. Thus, other than Theede’s bald assertion that the purpose for his signing the note was personal, there is nothing to indicate that the loan was made for any reason other than to maintain his business. Therefore, we agree with the circuit court and conclude that as a matter of law the confession of judgment clause in this promissory note was not used in a consumer transaction such as to render the clause void or the judgment entered thereon unenforceable.

The next issue is whether the circuit court erred in concluding that Theede failed to allege sufficient facts to support his asserted defenses. A trial court’s review of a motion to open a judgment by confession examines the legal sufficiency of the well-pleaded allegations of the motion as filed with its accompanying affidavits. (Gleneke v. Lesny (1970), 130 Ill. App. 2d 116, 119, 264 N.E.2d 803, 804-05.) If such allegations disclose a cognizable defense to a judgment by confession, the defendant’s motion will be granted and the cause will proceed to a hearing on the defense. (87 Ill. 2d R. 276; Harris Bank Argo v. Midpack Corp. (1986), 151 Ill. App. 3d 293, 294, 502 N.E.2d 1127, 1128.) The plaintiff may file counteraffidavits; however, its allegations are considered only to the extent that they are consistent with the allegations of the defendant. 87 Ill. 2d R. 276; First National Bank v. Achilli (1973), 14 Ill. App. 3d 1, 4, 301 N.E.2d 739, 741.

In this case Theede first asserts that he alleged sufficient facts to support his defense of economic or moral duress. The defense of economic duress is also known as “business compulsion” (Kewanee Production Credit Association v. G. Larson & Sons Farms, Inc. (1986), 146 Ill. App. 3d 301, 305, 496 N.E.2d 531, 534) and is similar to “moral duress.” (See People ex rel. Buell v. Bell (1959), 20 Ill. App. 2d 82, 95, 155 N.E.2d 104, 111.) The defense of economic duress differs from moral duress primarily in the theoretical basis for recovery, which in both cases is release from obligation under the contract. Economic duress permits release on the theory that the party is deemed to have lacked the mental capacity requisite to the making of a contract. (See Kaplan v. Kaplan (1962), 25 Ill. 2d 181, 186-87, 182 N.E.2d 706, 709.) Moral duress permits release on the theory that “the party benefiting thereby has received money, property, or other advantage which in equity and good conscience he should not be permitted to retain.” (Bell, 20 Ill. App. 2d at 95, 155 N.E.2d at 111.) To sustain a claim under either theory sufficient to render a contract unenforceable, the party must show that he was induced to enter into a contract by some wrongful act of the other contracting parly. (J.D. Alexander v. Standard Oil Co. (1981), 97 Ill. App. 3d 809, 815, 423 N.E.2d 578, 582.) Duress is not shown by the fact that one was subjected to mere annoyance, vexation, personal embarrassment (Kaplan, 25 Ill. 2d at 186, 182 N.E.2d at 710), a difficult bargaining position or the pressure of financial circumstances (Kewanee, 146 Ill. App. 3d at 305, 496 N.E.2d at 534). There must have been some “imposition, oppression, undue influence, or the taking of undue advantage of the business or financial stress or extreme necessities or weaknesses] of another.” Bell, 20 Ill. App. 2d at 95, 155 N.E.2d at 111.

In this case Theede alleges that he was financially stressed and that the bank, taking advantage of his situation, induced him to sign the note. Theede states that he was desperate to save his financial reputation because of the dishonored check. He told Towle that he was willing to do anything to have the check honored by the bank, which would save his reputation. He also asserts that Towle led him to believe that he was responsible for the loans executed by his wife. Further, Towle told him that if he would sign a note for the $60,800, consolidating all of the loans made to his wife, the bank would honor his check and they would later discuss the issues relating to his wife’s forging his signature on the other notes. We conclude that these allegations are sufficient to sustain a claim for economic duress. The circuit court erred, therefore, in denying Theede’s motion to open the judgment by confession on this basis.

Theede also asserts the defense of unilateral mistake of law. To be entitled to equitable relief for one’s unilateral mistake of law, the mistaken party must show, in addition to his mistake as to his legal rights or responsibilities prior to entering the transaction, some wrongful conduct by the nonmistaken parly that induced the mistaken party to act in favor of the nonmistaken party. (Bayne v. Cinak (1925), 320 Ill. 23, 28, 150 N.E. 344, 346.) In this case Theede asserts that he was mistaken as to his legal rights regarding the note. The bank does not deny Theede’s assertion, but it argues that Theede failed to allege any wrongful conduct on its part that induced Theede to sign the note. However, in his affidavits, Theede alleges that he signed the note because Towle led him to believe that he was liable for the loans executed by his wife. He further asserts that Towle knew that Theede was not liable for those loans. We conclude that these allegations are sufficient to establish wrongful conduct on the part of the bank and are, therefore, sufficient to sustain a claim for unilateral mistake of law. Thus, the circuit court erred in denying Theede’s motion to open the judgment by confession on this basis as well.

Theede argues, finally, that he alleged sufficient facts to support his defense of lack of consideration. While he asserts that no consideration was given for his signing the promissory note, Theede admits that he signed partly because he wanted the bank to honor his dishonored cheek. Theede does not deny that the formerly dishonored check was honored by the bank after he signed the promissory note. Thus, it appears that Theede received some benefit, which is sufficient consideration for his signing the note. Theede’s asserted defense of lack of consideration is, therefore, without factual support, and the circuit court was correct in denying his motion as to that defense.

We are not holding that the defendant is entitled to judgment in his favor on the merits of his claimed defenses of duress and mistake. We hold only that he has established prima facie defenses of duress and mistake and that he is, therefore, entitled to a hearing on the merits of those defenses.

For these reasons, we affirm that part of the judgment of the circuit court which holds the confession of judgment clause to be valid, which holds the judgment entered thereon enforceable, and which holds that Theede failed to sufficiently allege his defense of lack of consideration. All other aspects of the circuit court’s judgment are reversed, and the cause is remanded for proceedings consistent with this opinion.

Affirmed in part; reversed in part and remanded.

WOMBACHER, P.J., and SCOTT, J., concur.


author: JUSTICE STOUDER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LUIS SEGOVIA, Defendant-Appellant.
    Third District
    No. 3—88—0446
    Opinion filed April 26, 1989.
    Robert Agostinelli, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Edward F. Masters, State’s Attorney, of Joliet (Rita Kennedy Mertel, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE STOUDER

delivered the opinion of the court:

The defendant, Luis Segovia, pleaded guilty to one count of felony retail theft (Ill. Rev. Stat. 1987, ch. 38, pars. 16A—3, 16A—10(3)) and one count of misdemeanor retail theft (Ill. Rev. Stat. 1987, ch. 38, pars. 16A—3, 16A—10(1)). On December 22, 1987, the defendant was sentenced to concurrent terms of four years’ imprisonment on the felony retail theft conviction and one year of imprisonment on the misdemeanor retail theft conviction.

The defendant appealed the length of his sentence without filing a motion to withdraw his guilty plea as required by Supreme Court Rule 604(d) (107 Ill. 2d R. 604(d)). This court remanded the case on April 14, 1988, to the trial court to allow the defendant to file a motion to withdraw his guilty plea.

Upon remand, the defendant filed his motion to vacate the guilty plea, alleging among other matters that the plea was not knowingly and voluntarily entered and that the sentence was excessive. The defendant also filed a motion for a new trial. Following a hearing, the trial court denied both of the defendant’s motions.

On appeal the defendant’s sole complaint concerns the severity of the sentence imposed. The State has filed a motion to dismiss the appeal, contending that the recent Illinois Supreme Court case of People v. Wilk (1988), 124 Ill. 2d 93, 529 N.E.2d 218, requires dismissal because the defendant did not comply with the supreme court rules governing motions to withdraw guilty pleas. We took the State’s motion with the case and now address it.

After we remanded the instant case to allow the defendant to file his motion to vacate his guilty plea, the Illinois Supreme Court decided People v. Wilk (1988), 124 Ill. 2d 93, 529 N.E.2d 218. In Wilk, the supreme court declared that Rule 604(d)’s (107 Ill. 2d R. 604(d)) requirement that the defendant file a motion to vacate his guilty plea before filing a notice of appeal is mandatory. The Wilk court noted that the defendants in the four cases consolidated on appeal were all properly admonished by the trial court pursuant to Rule 605(b) (107 Ill. 2d R. 605(b)). The court further noted that an attorney who hears the Rule 605(b) admonishments of the trial court and fails to adhere to Rule 604(d) by moving to withdraw the plea prior to filing a notice of appeal has fallen short of providing competent representation. The court concluded that the appropriate remedy for a defendant whose counsel is properly admonished and yet does not comply with Rule 604(d) lies in the Post-Conviction Hearing Act (Ill. Rev. Stat. 1987, ch. 38, par. 122—1 et seq.). However, the court recognized an exception to the rule by finding that a defendant appealing only his sentence after pleading guilty is not required to move to withdraw his guilty plea if he filed a motion to reconsider in the trial court.

In the instant case, the record reveals that following the pronouncement of the defendant’s sentence defense counsel informed the trial judge that the defendant wanted to appeal only the severity of his sentence. The trial judge then had a discussion with the prosecutor regarding what was necessary to perfect such an appeal. The prosecutor responded that Rule 604(d)’s procedure “doesn’t make a lot of sense.” The trial judge then directed the clerk to file a notice of appeal on behalf of the defendant showing that the defendant requested only an appeal of the severity of his sentence, not of his guilty plea.

The defendant in the instant case, unlike the defendants in Wilk, was not adequately admonished in accordance with Supreme Court Rule 605(b). This left the defendant believing that he could appeal his sentence without first filing a motion to withdraw. Furthermore, since defense counsel did not hear the proper admonishment required by Rule 605(b), the defendant probably would not succeed on an ineffective assistance of counsel claim under the Post-Conviction Hearing Act. (See People v. Wilk (1988), 124 Ill. 2d 93, 529 N.E.2d 218.) Additionally, we note that the defendant notified the trial court of his desire to appeal, thereby giving it a chance to correct any errors it might have made in considering the defendant’s sentence. Accordingly, this court will consider the merits of the defendant’s appeal.

The defendant contends that the four-year sentence he received for his conviction of felony retail theft was excessive. He asks this court to reduce his sentence to the minimum term of two years.

We note that the sentence imposed by the court was within the permissible range of two to five years for the offense. (Ill. Rev. Stat. 1987, ch. 38, pars. 16A—10(3), 1005—8—1(a)(6).) It is axiomatic that sentencing is a matter within the trial court’s sound discretion. (People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.) It is also well established that the trial court can consider as an aggravating factor the defendant’s criminal history. People v. Tompkins (1987), 155 Ill. App. 3d 380, 508 N.E.2d 481.

According to the presentence report, the instant defendant had five prior convictions for petty theft and one for attempted burglary of an automobile. In view of the defendant’s criminal history, we find that the sentence was not an abuse of discretion.

Accordingly, the judgment of the circuit court of Will County is affirmed.

Affirmed.

HEIPLE and SCOTT, JJ., concur.


author: JUSTICE STOUDER JUSTICE SCOTT,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DANIEL R. RAMOS, Defendant-Appellant.
    Third District
    No. 3—88—0452
    Opinion filed April 20, 1989.
    Stephen Omolecki and Shari D. Goggs-Ward, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    James T. Teros, State’s Attorney, of Rock Island (Gary E Gnidovec, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE STOUDER

delivered the opinion of the court:

Daniel Ramos appeals from the judgment of the circuit court of Rock Island County denying his motion for additional sentence credit. Ramos was charged by information with residential burglary (Ill. Rev. Stat. 1987, ch. 38, par. 19—3) and theft (Ill. Rev. Stat. 1987, ch. 38, par. 16—1(d)(l)). On November 17, 1987, Ramos was placed under a $50,000 recognizance home detention bond and was assigned to an adult probation officer. As a condition of the bond, Ramos was not to leave the home of his mother and stepfather without the prior consent of his probation officer or the court. He was not permitted to go to school or work. During the period of his home detention, Ramos was permitted to leave on only three occasions: to appear in court for his arraignment, to go to his attorney’s office for consultation, and to attend the birth of his daughter to Melissa Reese. The probation officer denied Ramos’ request to go to the dentist. Following a negotiated guilty plea, the court convicted Ramos of residential burglary and sentenced him to a term of four years in the Department of Corrections. The court denied Ramos’ request that he be given sentence credit for the 168 days of home detention. When his motion to withdraw his plea of guilty was denied, he brought this appeal, arguing that the trial court erred in denying his request for sentence credit for the period of his home detention.

Section 5—8—7(b) of the Unified Code of Corrections (Ill. Rev. Stat. 1987, ch. 38, par. 1001—1—1 et seq.) provides that an offender shall be given sentence credit for time spent in custody as a result of an offense for which the offender received a term of imprisonment. (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8—7(b).) The issue Ramos raises in this case is whether his detention at home amounted to being “in custody” within the meaning of section 5 — 8—7(b) such that he is entitled to sentence credit for that time. Faced with a similar issue, the supreme court of Illinois concluded that “custody” does not include the period of time during which a defendant is released on bail. (People ex rel. Morrison v. Sielaff (1974), 58 Ill. 2d 91, 94, 316 N.E.2d 769, 771.) While the court indicated that “custody” is predicated upon a defendant’s “confinement,” the court did not say that a defendant’s “confinement” had to be imposed through a penal institution. Thus, assuming that the court left open the question of whether something less than imprisonment would suffice for “custody,” defendants in several cases after Sielaff have argued that the restrictive nature of their individual releases amounts to “confinement” such as to entitle them to sentencing credit. See, e.g., People v. Thompson (1988), 174 Ill. App. 3d 496, 528 N.E.2d 1016; People v. Tillery (1986), 141 Ill. App. 3d 610, 490 N.E.2d 967; People v. Willer (1985), 132 Ill. App. 3d 63, 476 N.E.2d 1385; People v. Freeman (1981), 95 Ill. App. 3d 297, 420 N.E.2d 163.

In Freeman, for example, the defendant, whose probation had been revoked, appealed from a judgment denying her sentence credit for the period during which she resided in a drug rehabilitation facility. The court noted that the rehabilitation program was voluntary, that post-orientation residents were free to come and go as they chose while new residents were permitted to leave if accompanied by another resident, that the doors to the facility were never locked, and that the residents were never physically restrained. (95 Ill. App. 3d at 299-300, 420 N.E.2d at 165.) Reasoning that her “limitations appeared less burdensome than those of a student subject to the compulsory school attendance law,” the court concluded that the defendant was not in custody for purposes of sentence credit. 95 Ill. App. 3d at 300, 420 N.E.2d at 166.

In Tillery, the defendant, convicted for an alcohol-related offense, appealed from a judgment denying him sentence credit for time spent in a residential treatment center for alcoholics which was a condition of his bond pending trial. At the facility, the defendant was closely supervised but was permitted to work three mornings a week at a nearby State hospital. Additionally, the defendant was permitted to spend 15 minutes each day to go to a nearby store. Reasoning that the defendant was in a facility less restrictive than that of the defendant in Freeman, the court concluded that the defendant was not in custody for purposes of sentencing credit. Tillery, 141 Ill. App. 3d at 614, 490 N.E.2d at 970.

In Wilier, the defendant, charged with indecent liberties with a child, procured a bond modification permitting him to be released from jail and confined to a hotel which was apart from his spouse and stepchildren and only three blocks from his place of employment. The “no-contact” provisions of his work release bond were continued, and he was permitted to leave the hotel only for employment or medical reasons. Following his conviction and sentencing, the defendant sought to have the 68 days of hotel confinement credited to his sentence. The trial court denied his request, and he appealed. Affirming the judgment of the trial court, the appellate court concluded that, notwithstanding the defendant’s having been restricted, his hotel detention could not be equated with custody or confinement for purposes of sentencing credit under section 5—8—7(b). Willer, 132 Ill. App. 3d at 70, 476 N.E.2d at 1390.

In Thompson, the defendant appealed from a judgment denying him sentence credit for the period in which he was under an electronic monitoring program on a recognizance bond. The court indicated that the defendant was to follow the rules and regulations of the monitoring program, but it did not explain either the nature of those rules or whether the defendant violated any of the rules. The court also did not discuss the motivation for electronic monitoring to serve as a substitute for imprisonment. Rather, the appellate court simply noted the trial court’s finding that during the monitoring period the defendant went to a hospital, the doctor’s office, his attorney’s office, the employment office, the Public Aid office, job hunting, work, the store, his girlfriend’s house, a friend's house, a fireworks display, out with friends, driving around with a friend and drinking beer. (Thompson, 174 Ill. App. 3d at 498-99, 528 N.E.2d at 1017.) Then, reasoning that the defendant “was out of touch with the monitoring system and free to go where he chose,” the court concluded that he was not in custody for purposes of sentence credit. 174 Ill. App. 3d at 500, 528 N.E.2d at 1018.

Notwithstanding these holdings, the defendant argues that in terms of degree of restriction, he was more confined than the defendants in Freeman, Tillery, Wilier, and Thompson and that he is, therefore, entitled to credit. We agree. Unlike the defendants in the above-cited cases, Ramos was permitted to leave his confinement only with the consent of the court or his probation officer. The three times that he was actually permitted to leave were occasions of necessity and not of convenience. Moreover, Ramos was not permitted to work or to attend school. Though it may not have amounted to imprisonment, Ramos’ home detention was not far from it. We conclude, therefore, that during his home detention the defendant was in custody for purposes of sentence credit, and the circuit court erred in holding otherwise. Accordingly, we reverse the judgment of the circuit court of Rock Island County.

Reversed.

WOMBACHER, P.J., concurs.

JUSTICE SCOTT,

dissenting:

I disagree with and dissent from the result and reasoning contained in the majority opinion. The majority cites cases where the reviewing courts have considered what constitutes “custody,” which would give to a defendant credit against the sentence imposed upon the defendant. None of the cited cases determined that the confinement of the defendant, while on bail, was of such a restrictive nature as to constitute the custody requirement set forth in section 5 — 8— 7(b) of the Unified Code of Corrections (Ill. Rev. Stat. 1987, ch. 38, par. 1001 — 1—1 et seq.).

Granting that in the instant case the defendant’s confinement was restrictive, I deem it material that the confinement was in his home. Confinement in one’s own home is a far cry from institutional confinement. I am sure that the defendant was grateful that, pending disposition of his case, he would remain in the privacy and I presume comfort of his home rather than be regimented by the rules and regulations of a penal institution.

To my knowledge, there are no Illinois cases determinative of the issue presented in this appeal. However, I find it difficult to conclude that it was the intent of our legislature to give credit against a later sentence for time spent at home while on bail.


author: PRESIDING JUSTICE STOUDER

text:
      In re MARRIAGE OF JANICE E. HART, Petitioner and Counterrespondent-Appellant, and JAMES MICHAEL HART, Respondent and Counterpetitioner-Appellee.
    Third District
    No. 3—88—0290
    Opinion filed February 3, 1989.

      K. Edward Copeland, of Sacks, Albrecht & Copeland, of Kankakee, for appellant.
    Louise B. Bigott, of Kankakee, for appellee.
   PRESIDING JUSTICE STOUDER

delivered the opinion of the court:

As part of the judgment of dissolution of the parties’ marriage, the trial court ordered the respondent and counterpetitioner, James Michael Hart, to pay the petitioner and counterrespondent, Janice E. Hart, maintenance of $200 per month for three months. Janice appeals.

The record shows that the parties were married on September 6, 1969. On June 14, 1986, Janice filed a petition for legal separation, along with a petition for temporary maintenance and child support. On July 14, 1986, the trial judge ordered James to pay $550 per month in child support for the couple’s two minor children and $200 per month in temporary maintenance.

James subsequently filed a counterpetition for dissolution of the parties’ marriage. Following a hearing on the matter, grounds for the dissolution were established on the counterpetition. The parties entered stipulations on the issues of custody, visitation, personal property and insurance. On March 25, 1988, the trial court entered its judgment dissolving the marriage and ordering James to pay maintenance of $200 per month until June 1, 1988.

On appeal, Janice argues that the trial court erred in limiting the maintenance award to three months, thereby speculating about her future employment.

Section 504(b) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1987, ch. 40, par. 504(b)) provides that once the trial court determines that maintenance is appropriate, the court can exercise its discretion in making an award of a limited duration. (In re Marriage of Wilder (1984), 122 Ill. App. 3d 338, 461 N.E.2d 447.) One relevant factor in assessing whether limited maintenance is warranted is the time necessary to acquire sufficient education to enable a party seeking maintenance to find appropriate employment. (Ill. Rev. Stat. 1987, ch. 40, par. 504(b)(2).) Limited maintenance awards have been upheld in cases in which the award was intended to maintain a party for a period during which such party’s income-producing potential might be folly realized. (In re Marriage of Rothbardt (1981), 99 Ill. App. 3d 561, 425 N.E.2d 1146.) If the wife is employable at an income not overly disproportionate from the standard of living she enjoyed during marriage, then generally speaking, limited maintenance is appropriate. (In re Marriage of Pieper (1979), 79 Ill. App. 3d 835, 398 N.E.2d 868.) The decision to grant limited maintenance will not be disturbed on review unless it amounts to an abuse of discretion or it is against the manifest weight of the evidence. In re Marriage of Wilder (1984), 122 Ill. App. 3d 338, 461 N.E.2d 447.

In the instant case, the judge’s docket sheet states in regard to the maintenance award that the “counterrespondent [is] found to be a highly intelligent and well educated person capable of securing employment and maintaining herself upon receiving her teaching certificate within the next 60 to 90 days. Counterpetitioner [is] ordered to pay maintenance of $200 per month until June 1, 1988, at which time it shall cease.”

The evidence at the dissolution hearing revealed that Janice was 36 years old at the time of the divorce. In the two years prior to the divorce, she had pursued her education at Governor’s State University, where she obtained a degree in elementary education. As a result, she incurred a debt of $5,100 on an educational loan. Her 1987 income was $14,000, coming partly from her $7-per-hour job as a secretary at Kankakee Community College. James worked as a golf course manager, earning approximately $22,500 in 1987. He apparently lived in a home supplied by his employer at no cost. The couple had acquired little or no marital assets and both were of normal health, except that James suffered from hypertension.

We find that the trial court did not abuse its discretion in awarding limited maintenance. However, by limiting the maintenance award to three months, at which time it was to automatically terminate, the trial court was in fact engaging in speculation that Janice would have obtained employment as a teacher and thus gained self-sufficiency. Limited awards should not be based on speculation as to the future conditions of the parties, but rather on the circumstances disclosed by the evidence. In re Marriage of Wilder (1984), 122 Ill. App. 3d 338, 461 N.E.2d 447.

The record reveals no evidence to support the trial court’s assumption that Janice would necessarily be able to support herself at the end of the three-month period at a reasonable approximation of the standard of living enjoyed during the marriage. At the dissolution hearing, Janice testified that she had completed all the requirements for teacher certification. However, she further testified that she was not reasonably sure she would be able to secure employment in the public school system in the fall of 1988.

Under the circumstances, we find that the most appropriate solution is for the trial court to retain jurisdiction so that it can reevaluate the relevant circumstances of the parties and make such modifications in the award of maintenance as may be appropriate in the future. Time-limited maintenance which is reviewable at a certain date in the future has been widely accepted by Illinois courts as a logical, practical and fair way to handle maintenance awards. (See In re Marriage of Albiani (1987), 159 Ill. App. 3d 519, 512 N.E.2d 30; In re Marriage of Asch (1981), 100 Ill. App. 3d 293, 426 N.E.2d 1066.) In addition to there being no guarantee that Janice will have found employment by the fall of 1988, we also recognize that she would probably not be employed as a teacher for the summer months of 1988. If that is found to be the case, the trial court should continue maintenance for the period in which Janice is without appropriate employment.

The judgment of the circuit court of Kankakee County is reversed as to the automatic termination of Janice’s maintenance on June 1, 1988. The cause is remanded for the limited purpose of allowing the trial court to review the maintenance award in light of our findings in this opinion. The remainder of the trial court’s judgment is affirmed.

Affirmed in part; reversed in part and remanded.

WOMBACHER and HEIPLE, JJ., concur.


author: JUSTICE SCOTT

text:
    GREGORY ALEXANDER et al., Plaintiffs-Appellants, v. THE COUNTY OF TAZEWELL et al., Defendants-Appellees (East Peoria Elementary School District No. 86 et al., Intervenors-Appellees).
    Third District
    No. 3—88—0663
    Opinion filed April 26, 1989.

      Frings, Bagley, Atherton & Clark, of Pekin (Thomas M. Atherton, of counsel), for appellants.
    Eric I. Blanc, State’s Attorney, of Pekin (Stewart J. Umholtz, Assistant State’s Attorney, of counsel), for appellees County of Tazewell, Duane Gray, and Russell Strauman.
    Laurie M. Judd, Phillip B. Lenzini, and David J. Walvoord, all of Kavanagh, Scully, Sudow, White & Frederick, P.C., of Peoria, for appellees East Peoria Elementary School District No. 86 and Central-Columbia Grade School District No. 51.
    S. Jeff Funk, of Miller, Tracy, Braun & Wilson, Ltd., of Monticello, for appellee Delavan School District No. 703.
   JUSTICE SCOTT

delivered the opinion of the court:

This action was brought by the residents of four school districts on behalf of themselves and others similarly situated to enjoin the Tazewell County treasurer from distributing a portion of the real estate taxes held by him and to ultimately obtain a refund of the taxes. A motion for preliminary injunction requesting the court to order the disputed taxes held pending further order of the court was denied by the trial court, and this interlocutory appeal by plaintiffs pursuant to Supreme Court Rule 307(a)(1) followed. No questions are raised on the pleadings.

The essential facts are generally undisputed and were stipulated by plaintiffs and defendants at the trial level. On March 15, 1988, four school districts in Tazewell County passed referenda, pursuant to section 162a of the Revenue Act of 1939 (Ill. Rev. Stat. 1987, ch. 120, par. 643a) to increase the maximum tax rate limit for their educational funds. The tax levies for the 1987 taxes, payable in 1988, prior to the referenda, had been certified by all four school districts. In April of 1988, the Tazewell County clerk computed the taxes to be extended on the previously certified tax levies passed by the respective school districts and extended the new tax rate approved at the March 15, 1988, election. The county treasurer then prepared tax bills based on the county clerk’s computations using the increased education fund rate. The tax bills were mailed on April 29, 1988, and payment of the first installment was due June 1, 1988. Sixteen taxpayers in the four districts paid their taxes under protest, alleging that the county clerk improperly extended the new tax rate to the school district levies. None of the plaintiffs herein, however, paid under protest. Plaintiffs’ suit for preliminary and permanent injunction followed on September 16, 1988, contending that the county clerk and treasurer had applied the incorrect tax rate to the tax bills. Three of the affected school districts intervened, and hearings were had on plaintiffs’ motions for temporary injunction and certification of class. The trial court determined that the requested injunctive relief must be denied for two reasons: (1) that plaintiffs had an adequate remedy at law, i.e., tax objections, and (2) that a balancing of the competing public interests required the injunction to be denied. Plaintiffs’ motion for certification of class was also denied. Plaintiffs residing in three of the districts have appealed to this court. The procedural issue is whether the trial court erred in denying plaintiffs’ motion for preliminary injunction. The trial court’s denial of plaintiffs’ motion for certification has not been raised as an issue on appeal.

Section 162a of the Revenue Act of 1939 specifies that if a higher tax rate referendum is approved by the voters in a given district, “the tax rate limit so established shall become effective with the levy next following the referendum.” (Ill. Rev. Stat. 1987, ch. 120, par. 643a.) The trial court, as well as defendants, acknowledged that the tax rate used by the county clerk was not proper. Basically, the tax rate approved by referendum in March of 1988 was implemented one year early. Intervenors, East Peoria Elementary School District No. 86 (East Peoria), Central-Columbia Grade School District No. 51 (Central-Columbia) and Delavan Community Unit School District No. 703 (Delavan), however, argue that implementation of the new tax rate was not clearly improper. Nonetheless, we agree with the trial court that the statutory language clearly mandates that the tax rate approved by the voters of the respective school districts, in March~of 1988, should not have been used to compute the tax bills issued in April of 1988.

The Revenue Act of 1939 also prescribes a taxpayer’s legal remedy for objective to improper taxes. Sections 194 and 235 provide that if any taxpayer desires to object to all or part of a real property tax, the taxpayer must pay both installments of the tax due under protest (Ill. Rev. Stat. 1987, ch. 120, par. 675), and file objections to the application for judgment (Ill. Rev. Stat. 1987, ch. 120, par. 716). Although the above-described procedure is generally considered a taxpayer’s exclusive remedy in tax cases, our supreme court has prescribed certain exceptions wherein equitable remedies become available to a taxpayer without first following the statutory remedy. In Clarendon Associates v. Korzen (1973), 56 Ill. 2d 101, 306 N.E.2d 299, the court reiterated a long-standing doctrine that “[a] taxpayer need not look to the remedy at law but may seek relief by way of injunction where the tax is unauthorized by law or where it is levied upon property exempt from taxation.” (Clarendon, 56 Ill. 2d 101, 105, 306 N.E.2d 299, 301.) The parties acknowledge that neither of these exceptions is applicable to the case at hand. The court further observed, however, that equitable jurisdiction will also arise where special grounds exist, such as fraudulently excessive assessment and the unavailability of an adequate remedy of law. Clarendon, 56 Ill. 2d 101, 306 N.E.2d 299.) In Hoyne Savings & Loan Association v. Hare (1974), 60 Ill. 2d 84, 322 N.E.2d 833, the court considered its prior discussion in Clarendon and held that a taxpayer was entitled to equitable relief despite the availability of a remedy at law. Plaintiffs herein principally rely on Hoyne as authority for reversal of the trial court. In Hoyne, the plaintiff, whose place of business was in Cook County, owned a tract of land in McHenry County which was zoned residential. A portion of the land was subdivided into 200 lots, 19 of which were improved with sewer lines, and 40% of the land was swampy and unusable. The total assessed value of the property in 1970 was $9,510. In 1971, the defendant, a newly elected township assessor, reassessed the property at an assessed value of $246,810 on the belief that the best use for the property would be partially commercial and partially multiple-dwelling apartments, but without consideration of how the property was already zoned. Defendant further made the assessment on the basis that all 200 lots were improved with sewer lines and that the swampy area could be improved by creating a lake, thereby enhancing the value of the entire tract. An independent real estate appraiser opined that the value of the property was $75,000. The assessment for 1971 was not completed by defendant until December of 1971 and was approved by the county board of supervisors in January of 1972. Publication of the increased assessment was had on March 14, 1972, and no other notice of the increased assessment was mailed to plaintiff. Plaintiff’s first notice of the increased assessment was upon receipt of the tax bill, approximately November 5, 1972, with the 1971 taxes due and payable on November 24, 1972. At this time, the board of review for McHenry County had completed its hearings on objections to the assessments forming the basis for the 1971 taxes. Plaintiff thus sought no relief from the board of review, did not pay the increased taxes under protest and file tax objections, but, instead, filed a suit for declaratory judgment and equitable relief. Plaintiff’s 1972 taxes were based upon the same assessment as were the 1971 taxes and it again elected to forgo any statutory remedies and filed an action in equity on the same grounds and upon substantially the same evidence as its action based on the 1971 taxes. In 1973, the assessed value of the subject property was revised to $55,000 by the county board of review. The trial court ruled in plaintiffs favor and the assessments were reduced as to both tax years.

On direct appeal pursuant to Rule 302(b), our supreme court determined that the unusual facts as applied to the 1971 taxes fell within the exception to the general rule announced in Clarendon, that equity will grant relief upon special grounds and where an adequate remedy at law is unavailable. (Hoyne, 60 Ill. 2d 84, 322 N.E.2d 837.) The circumstances upon which the court hinged its decision were the defendant’s admission that the 1971 assessment was excessive; the dramatic increase in assessed valuation from 1970 to 1971 without improvements so justifying the increase; the incorrect assumption that all of the property was improved with water and sewer services; the late date of the assessment and subsequent publication; the board of review’s procedure for objecting to assessments was not available upon plaintiff’s receipt of the tax bills; and that the 1973 tax assessment was substantially reduced by the county board of review. All of these circumstances, the court stated, contributed in “the formation of the total picture requiring equitable intervention.” (Hoyne, 60 Ill. 2d 84, 90, 322 N.E.2d 833, 836.) As to the 1972 taxes, however, the court determined, based on Clarendon, that plaintiff’s remedy at law was adequate. Hoyne, 60 Ill. 2d 84, 322 N.E.2d 833.

Plaintiffs argue that the facts of this case warrant equitable intervention under authority of Hoyne. In particular, plaintiffs argue that the lack of time between receiving the tax bill and payment of taxes due was inadequate to give plaintiffs reasonable notice of the improper school district rates; therefore, the remedy at law of paying under protest was impractical. Plaintiffs’ first notice of the increased tax rate was by the tax bills mailed April 29, 1988, with the first installment due June 1, 1988. Plaintiffs further suggest that the information contained within the tax bills was so vague and imprecise that it was ineffectual in giving notice of the increased rate. We do not discount the validity of plaintiffs’ arguments; however, in Hoyne, the court determined that an accumulation of factors created a basic unfairness that required equitable intervention. (Hoyne, 60 Ill. 2d 84, 322 N.E.2d 833.) To the contrary, there is not a sufficient accumulation of inequities in this case to warrant a finding that plaintiffs’ remedy at law was inadequate. Although plaintiffs apparently received something less than 30 days’ notice, there has been no showing that this amount of notice was because of some delay by the county clerk or treasurer in preparing and mailing the tax bills; nor is there any claim that the information provided within the tax bills was legally insufficient. Moreover, in Hoyne, the amount of additional tax to be paid by the plaintiff because of the grossly excessive assessment was thousands of dollars. While acknowledging that a determination of whether an increased tax burden on a taxpayer because of some error is relative to the particular taxpayer affected, plaintiffs herein have not been subjected to such a grossly excessive tax so as to render the remedy at law inadequate.

The standard for governing the issuance of a preliminary injunction has been succinctly stated in Levitt Homes, Inc. v. Old Farm Homeowners’ Association (1982), 111 Ill. App. 3d 300, 307, 444 N.E.2d 194, 198:

“In order for a preliminary injunction to issue, a plaintiff must establish (1) that he possesses a clearly ascertained right which needs protection, (2) that he will suffer irreparable harm without the injunction, (3) that there is no adequate remedy at law for his injury, and (4) that he is likely to be successful on the merits of his actions.” Levitt Homes, Inc., 111 Ill. App. 3d at 307, 444 N.E.2d at 198.

See also Buzz Barton & Associates, Inc. v. Giannone (1985), 108 Ill. 2d 373, 483 N.E.2d 1271.

As we have determined above that plaintiffs’ remedy at law was adequate, the decision of the trial court denying plaintiffs’ motion for preliminary injunction is affirmed.

Finally, a number of motions have been filed with this court, some of which have previously been determined. Those motions requiring comment herein are: (1) appellants’ motion for stay seeking to enjoin the Tazewell County treasurer from disbursing the final portion of the 1987 real estate taxes to all of the affected school districts except Central-Columbia and which was previously granted by order entered November 28, 1988, is now lifted; (2) appellants’ motion to strike portions of intervenors-appellees East Peoria and Central-Columbia’s brief is denied as we have disregarded any information not contained in the record; (3) intervenors-appellees East Peoria and Central-Columbia also filed a motion to amend the record on appeal by submitting all of the documentation regarding those taxpayers in the four school districts that paid their taxes under protest; we consider this documentation relevant, although not determinative, and therefore allow the motion; and (5) intervenor-appellee Central-Columbia moved to dismiss the pending appeal and case with respect to it because this court’s order granting appellants’ motion to stay was not directed to it and therefore the Tazewell County treasurer disbursed the remaining portions of the 1987 real estate taxes to the district. Because the stay was not directed to Central-Columbia, on the basis that the plaintiffs residing in the Central-Columbia district chose not to pursue an appeal, the motion is granted.

Affirmed.

WOMBACHER, P.J., and STOUDER, J., concur.


author: JUSTICE HEIPLE

text:
    ROBBIE ALAN NOVANDER, Plaintiff-Appellant and Cross-Appellee, v. THE CITY OF MORRIS et al., Defendants-Appellees (Morris Hospital et al., Defendants; The City of Morris, Defendant-Counterplaintiff; Timm Pearson et al., Defendants-Appellees).
    Third District
    No. 3—88—0463
    Opinion filed April 25, 1989.

      Peacock, McFarland & Gordon, of Morris (Wayne W. McFarland, Jr., of counsel), for appellant.
    John A. Yasko, of Tressler, Soderstrom, Maloney & Priess, of Wheaton (Francis A. Spina, of counsel), for appellee City of Morris.
    Michael T. Reagan, of Ottawa, for appellee Continental Grain Company.
    Bradley W. Hayes and Susan K. Wallitsch, both of Dunn, Hayes & Con-don, of Morris, for appellees Timm Pearson and Charles Pearson.
   JUSTICE HEIPLE

delivered the opinion of the court:

The plaintiff, Robbie Novander, brought suit for personal injuries sustained by him as a result of a motorcycle accident that occurred on June 26, 1984. The circuit court of Grundy County dismissed counts I and II of the plaintiffs fourth amended complaint, which were brought against the City of Morris (the City) and Continental Grain Company (Continental), on the grounds that proximate cause was not established. The plaintiff appeals the dismissal of counts I and II. Additionally, the City cross-appeals the dismissal of its contribution counterclaim. We affirm.

Robbie Novander was driving his motorcycle westbound on Griggs Drive in the City of Morris while the defendant, Timm Pearson, was driving his father’s grain truck eastbound on Griggs Drive. Pearson was delivering a load of grain to the Continental Grain facility located on Griggs Drive near the accident site. Pearson drove his truck into Novander’s westbound lane, apparently to avoid large potholes in the roadway and driveway entrance to Continental Grain. Allegedly, the vision of both drivers was obscured by foliage along the northerly edge of Griggs Drive. A collision occurred and the plaintiff’s leg was seriously injured.

Initially' the plaintiff filed an action against Timm Pearson, Pearson’s father, and the City, but eventually added claims against Continental, Morris Hospital, and Dr. Douglas Adelmann. The Pearsons and Novander reached a settlement on Novander’s negligence claims in the amount of $406,000. Based on the trial court’s determination that the settlement agreement was reached in good faith, the City’s counterclaim for contribution against the Pearsons was dismissed. The claims against Morris Hospital and Dr. Douglas Adelmann are not involved in this appeal.

On appeal the plaintiff argues that it was reasonably foreseeable that Timm Pearson, to avoid potholes, would alter his pattern of travel as a result of the negligent acts or omissions of the City and Continental. While we agree that it is foreseeable that a driver might choose to avoid potholes by altering the path of his vehicle, we do not find that the potholes or other conditions on the roadway were the proximate cause of the collision.

What constitutes the proximate cause of an injury in a particular case is ordinarily a question of fact to be presented to the jury, and it can only be a question of law where there can be no reasonable differences in the inferences to be drawn by reasonable men from the undisputed facts. (Lindenmier v. City of Rockford (1987), 156 Ill. App. 3d 76.) Proximate cause is one which produces the injury through a natural and continuous sequence of events unbroken by any effective intervening cause. (Kemp v. Sisters of the Third Order of St. Francis (1986), 143 Ill. App. 3d 360.) As was discussed by the Illinois Supreme Court, a “cause vs. condition” analysis has evolved in examining whether proximate cause exists in certain situations:

“[IJf the negligence charged does nothing more than furnish a condition by which the injury is made possible and that condition causes an injury by the subsequent, independent act of a third person, the creation of the condition is not the proximate cause of the injury where the subsequent act is an intervening efficient cause which breaks the causal connection between the original wrong and the injury, and itself becomes the proximate or immediate cause.” Merlo v. Public Service Co. (1942), 381 Ill. 300, 316.

In Lindenmier v. City of Rockford (1987), 156 Ill. App. 3d 76, the appellate court was called upon to apply the “condition vs. cause” doctrine. In that case, a negligence claim was brought for injuries sustained in an automobile accident allegedly caused by malfunctioning left-turn traffic arrow signals. The driver apparently believed she had time to safely make the turn before an oncoming vehicle entered the intersection. The court stated:

“[The driver’s] decision to turn was based strictly on her own assumption that it was safe to do so when, in fact, she admitted she had no way of knowing whether oncoming traffic actually had a red light and in spite of the fact she knew a full green light meant she had to yield the right-of-way. No condition of the traffic signals directed or permitted her to make that left-hand turn.
*** We do not believe the defendants reasonably could have anticipated that [driver] would disregard the acknowledged, statutorily prescribed response to the display of full, circular green traffic lights in favor of the utterly ambiguous meaning of the presence of a single stopped car on the opposite side of the intersection in deciding to turn left in front of another oncoming car.” (Lindenmier, 156 Ill. App. 3d at 90, 91-92.)

Consequently, the court, adhering to the “condition vs. cause” analysis, affirmed summary judgment for the defendant city.

Similarly, in the instant case, it is undisputed that the grain truck was being operated substantially in the wrong lane of traffic at the time of the accident. Like the defendant in Lindenmier, Timm Pearson chose to disregard the Illinois Vehicle Code when the collision occurred. (Ill. Rev. Stat. 1985, ch. 951/2, par. 11—701.) Further, Pearson testified that he had driven to the Continental Grain facility approximately 100 times and that he had driven over the potholes on Griggs Drive without knowingly sustaining any damage to the truck. Thus, Pearson was not forced to drive in the wrong lane, but chose to drive in the wrong lane. While it is commonplace that drivers often dodge potholes, neither the City nor Continental could reasonably anticipate that Pearson would take such evasive actions in the face of oncoming traffic. Timm Pearson’s acts constitute the type of subsequent, independent act which becomes an effective intervening cause, breaking any causal connection between the City’s and Continental’s alleged negligence and the accident. The surface of the roadway and the foliage surrounding the roadway, at most, furnished a condition by which Novander’s injuries were made possible. The condition of the roadway was not the legal or proximate cause of the accident. Accordingly, the trial court properly dismissed counts I and II of the fourth amended complaint since proximate cause was not established as a matter of law.

Moreover, this court notes that some reasonable limitations must be imposed before the City and Continental can be held legally responsible for the injuries sustained in the present action. As stated by Professor Prosser in his treatise on torts:

“ ‘Proximate cause’ — -in itself an unfortunate term — is merely the limitation which the courts have placed upon the actor’s responsibility for the consequences of his conduct. In a philosophical sense, the consequences of an act go forward to eternity, and the causes of an event go back to the discovery of America and beyond. ‘The fatal trespass done by Eve was cause of all our woe.’ But any attempt to impose responsibility upon such a basis would result in infinite liability for all wrongful acts, and would ‘set society on edge and fill the courts with endless litigation.’ As a practical matter, legal responsibility must be limited to those causes which are so closely connected with the result and of such significance that the law is justified in imposing liability. Some boundary must be set to liability for the consequences of any act, upon the basis of some social idea of justice or policy.” (W. Prosser, Handbook of the Law of Torts, §41 at 236 (4th ed. 1971).)

Here, the City and Continental cannot be held legally responsible for the remote risk that someone, in response to the condition of the roadway, will drive in the wrong lane of traffic while an oncoming vehicle is in the other lane.

Finally, this court need not address the issues presented by the City’s cross-appeal since this court affirms the order dismissing Nov-ander’s claims against the City. For the reasons stated, we affirm the decision of the circuit court of Grundy County.

Affirmed.

WOMBACHER, P.J., and STOUDER, J., concur.


author: JUSTICE GREEN JUSTICE LUND,

text:
    STATE STREET BANK AND TRUST COMPANY OF QUINCY, Plaintiff-Appellant, v. UNITED STATES FIDELITY AND GUARANTY COMPANY, Defendant-Appellee.
    Fourth District
    No. 4—88—0311
    Opinion filed May 17, 1989.
    Jerry L. Brennan, of Keefe, Gorman & Brennan, of Quincy, for appellant.
    Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (D. Kendall Griffith, Lawrence Moelmann, and Peter D. Sullivan, of counsel), for appellee.
   JUSTICE GREEN

delivered the opinion of the court:

This action was brought in the circuit court of Adams County by plaintiff State Street Bank and Trust Company (Bank) against defendant United States Fidelity and Guaranty Company (USF&G) for attorney fees and costs incurred by the Bank in defending an action against it. On April 21, 1988, the trial court entered an order granting USF&G’s motion for summary judgment and denying a similar motion by the Bank. The plaintiff Bank appeals from that order. We affirm.

The Bank’s second-amended complaint alleged: (1) in count I, that defendant breached its duty to defend the plaintiff in an action in the same court entitled O’Brien v. State Street Bank & Trust Co. (case No. 75—L— 57); and (2) in count II, that defendant breached its duty to indemnify plaintiff for its attorney fees, costs, and other incidental expenses incurred by the Bank in defending in case No. 75—L—57. The alleged breach of duty in each of counts I and II is based upon a contract of insurance issued by defendant insuring plaintiff pursuant to a “Banker’s Blanket Bond,” commonly known as a fidelity bond.

The “INSURING AGREEMENTS” of the bond provide that the underwriter (USF&G) agrees to indemnify and hold harmless the insured (Bank) from that which in paragraph (A) thereof is described under the heading “FIDELITY” as:

“Loss through any dishonest or fraudulent act of any of the Employees, committed anywhere and whether committed alone or in collusion with others, including loss, through any such act of any of the Employees, of Property held by the Insured for any purpose or in any capacity and whether so held gratuitously or not and whether or not the Insured is liable therefor.”

The policy also provides, under General Agreement D:

“The Underwriters will indemnify the Insured against’court costs and reasonable attorney’s fees incurred and paid by the Insured in defending any suit or legal proceeding brought against the Insured to enforce the Insured’s liability or alleged liability on account of any loss, claim or damage which, if established against the Insured, would constitute a valid and collectible loss sustained by the Insured under the terms of this Bond.” (Emphasis added.)

General Agreement D also gives USF&G the right to defend “at the underwriter’s election.”

In case No. 75 — L—57, John O’Brien filed a two-count complaint wherein he alleged the Bank (1) intentionally and (2) negligently interfered with his existing and prospective business relationships. He alleged the Bank (1) by and through its agent, David Carey, an assistant vice-president of the Bank, made certain representations to him concerning a debt he owed the Bank; (2) later, contrary to Carey’s representations, accelerated the due dates of debts which O’Brien owed it; (3) offset and seized O’Brien’s bank accounts; (4) seized, repossessed and sold certain property belonging to O’Brien; and (5) confessed judgments against O’Brien as to various debts. O’Brien’s complaint alleged these acts were (1) as to count I, wilful, wanton, intentional, malicious, reckless, and in bad faith; and (2) as to count II, negligent and careless and in bad faith. The trial court dismissed the complaint. On appeal, this court affirmed the dismissal of count II but reversed the dismissal of count I. This court held the additional assertion that the interference was wilful and intentional provided count I with necessary allegations to state a cause of action. (O’Brien v. State Street Bank & Trust Co. (1980), 82 Ill. App. 3d 83, 401 N.E.2d 1356 (O’Brien I).) Upon remand, summary judgment was entered in favor of the Bank and affirmed by this court on appeal. O’Brien v. State Street Bank & Trust Co. (1986), 140 Ill. App. 3d 1151 (order under Supreme Court Rule 23) (O’Brien II).

The Bank does not indicate it disputes the propriety of the summary judgment against it as to count I. In any event, we agree the court ruled properly. The instrument upon which plaintiff sought recovery was an indemnity bond and not a liability policy. The only provision in regard to defendant defending the plaintiff was the statement in General Agreement D giving defendant the right to defend “at the underwriter’s election.” In a case concerning the duty of an underwriter to defend an indemnitee under a similarly worded bond, the court held the underwriter had no duty to defend under the bond. Mortell v. Insurance Co. of North America (1983), 120 Ill. App. 3d 1016, 458 N.E.2d 922.

In count II, the Bank sought indemnity for court costs and attorney fees in its defense of the O’Brien suit. As we have indicated, under General Agreement D, USF&G agreed to indemnify the Bank for “court costs and reasonable attorney’s fees incurred *** in defending any suit *** brought against the [Bank] to enforce the [Bank’s] liability or alleged liability on account of any *** claim *** which, if established *** would constitute a valid and collectible loss *** under the terms of this Bond.” (Emphasis added.) Under the provision of paragraph (A) of the “INSURING AGREEMENTS” the bond indemnified the Bank for “[l]oss through any dishonest or fraudulent act of any of the Employees.”

The Bank contends the complaint in case No. 75 — L—57 alleged the Bank’s employees were dishonest in the conduct upon which the cause of action purportedly arose. The Bank maintains that, accordingly, the complaint in case No. 75 — L—57 set forth a claim recovery upon which would constitute a “valid and collectible loss” under paragraph (A), thus triggering the operation of General Agreement D and entitling the Bank to indemnity for attorney fees and court costs for its defense in case No. 75 — L—57.

USF&G makes no contention that because the O’Brien complaint’s charge of misconduct against Bank employees concerns misconduct directed against O’Brien rather than against the Bank, paragraph (A) of the “INSURING AGREEMENT” is not applicable to the Bank’s exposure to liability in case No. 75 — L—57. Rather, USF&G first asserts the Bank is precluded from recovery on count II because the allegations in the O’Brien lawsuit, if proved, would not constitute “fraud” or “dishonesty” within the meaning of the bond. This issue focuses upon the wording of the complaint and not upon evidence. USF&G points out that count II of the instant complaint mentions neither “fraud” nor “dishonesty.” The second contention of USF&G is that the Bank’s officers, directors, and attorneys authorized or acquiesced in Carey’s acts, which were alleged to have been fraudulent or dishonest.

The Bank makes no contention that the O’Brien complaint alleged its employees acted fraudulently. Rather it contends the allegations were sufficient to charge them with being “dishonest” within the meaning of the bond. We need not decide whether the allegations of the O’Brien complaint were sufficient to charge employees of the Bank with being “dishonest.” We agree with USF&G that the participation of high level officers of the Bank in a course of action determined at a high level to be in the best interests of the Bank prevents the Bank from obtaining indemnity for attorney fees and court costs under the “Fidelity” provisions of the bond.

The Illinois cases upon which USF&G relies are Mortell and Home Indemnity Co. v. Reynolds & Co. (1962), 38 Ill. App. 2d 358, 187 N.E.2d 274. In Mortell, a bond somewhat similar to that here contained an express provision excluding from coverage losses of the insured “attributable to acts of its ‘managing body.’ ” (Mortell, 120 Ill. App. 3d at 1026, 458 N.E.2d at 929.) Accordingly, the court held no indemnity for attorney fees and costs arose when an insured defended against allegations charging the indemnitees’ partners with fraud. (Mortell, 120 Ill. App. 3d at 1027, 458 N.E.2d at 930.) In Home Indemnity, reference is made to a rule of law whereby partners in a firm selling securities would not be able to obtain indemnity for attorney fees incurred in defending litigation resulting from fraud of the firm’s sales force, if the partners had acquiesced in the fraud. The court held that to allow indemnity would permit the partnership to profit from its own wrong. Home Indemnity, 38 Ill. App. 2d at 375, 187 N.E.2d at 283.

Of the cases cited by USF&G precluding coverage because of participation of officers or directors in the transaction giving rise to the loss, the most nearly applicable is Farmers & Merchants State Bank v. St. Paul Fire & Marine Insurance Co. (1976), 309 Minn. 14, 242 N.W.2d 840. There, the reviewing court held that a bonding company was not required to indemnify an indemnitee for attorney fees incurred in defending an action against the indemnitee arising from a transaction in which active directors of the indemnitee took part. That court stated that indemnification would have been required absent the participation of the directors. The opinion indicated that the bond there contained provisions very similar to those here.

The Bank presents no case authority for holding the issuer of a fidelity bond to indemnify the obligee on the bond for expenses incurred in defending a suit against the obligee for conduct of employees resulting from a high level decision as to the policy to be followed by the obligee. Rather, the Bank cites First National Bank v. Fidelity & Casualty Co. (5th Cir. 1981), 634 F.2d 1000. There, a suit was brought against a bank alleging damages resulting from a forgery and check-kiting scheme engaged in by a director of the bank assisted by the president and chair of the board of directors. That bank prevailed in that action and then brought suit against the obligor on its fiduciary bond for indemnity for expenses of defending the suit. The obligor defended on the basis that the bank had continually maintained the bank president had not participated in the fraud. The circuit court of appeals held subsequent conduct of the bank in upholding the conduct of its president did not negate a duty on the obligor to indemnify the bank. However, there, unlike here, the record did not indicate a high level decision by the bank had approved the conduct of its president which was alleged to be fraudulent.

For the purpose of making our decision here in regard to coverage for indemnification for attorney fees, we consider not only the allegations of the complaint, but also the evidence of the conduct of the Bank’s officers as shown by the evidence of record at the time of the hearing on the motion for summary judgment. (Maryland Casualty Co. v. Chicago & North Western Transportation Co. (1984), 126 Ill. App. 3d 150, 156, 466 N.E.2d 1091, 1095; Farmers & Merchants State Bank v. St. Paul Fire & Marine Insurance Co. (1976), 309 Minn. 14, 242 N.W.2d 840.) That evidence shows that not only Carey, but also the president of the Bank, who was a director, and an attorney for the Bank, participated in the various transactions which O’Brien unsuccessfully attempted to prove constituted the tort of unlawful interference with a contractual relationship.

Unlike in Farmers & Merchants State Bank, we do not have a participation by a majority of the governing board of the Bank. We do not deem participation of directors to be determinative. As individuals, directors do not act on behalf of their corporation. Such a board can act only as a group and by resolution. However, where, as here, a high level decision is made to enhance the position of the corporate body involved, to require the obligor on the fiduciary bond to indemnify the corporation for expenses incurred in defending the action would make the bond a liability policy (without obligation to defend) for high level corporate acts deemed to be dishonest or in fraud of customers. A fiduciary bond is not intended to have such coverage.

Accordingly, we affirm.

Affirmed.

KNECHT, J., concurs.

JUSTICE LUND,

specially concurring:

THE ISSUE

It is my opinion that the plaintiff seeks to extend coverage of the “Bankers Blanket Bond” beyond what it clearly intended. After providing for the losses covered by the bond, there is a provision allowing indemnity for attorney fees incurred “on account of any loss, claim or damage which, if established against the insured would constitute a valid and collectible loss sustained by the insured under the terms of this bond, in event of such loss.” The issue is whether case No. 75 — L—57 stated a cause of action which, if established, would result in a loss covered by the terms of the bond.

RULES OF CONSTRUCTION

The rules of construction applicable to bonds are generally consistent with those applying to insurance contracts. (10 Am. Jur. 2d Banks §84 (1963).) Generally, an insurance contract, in case of doubt as to meaning thereof, shall be interpreted against the party who has drawn it, which, as in this case, is usually the insurance company. (43 Am. Jur. 2d Insurance §283 (1982).) This rule does not conflict with the rule that insurance contracts should be construed to carry out the true intention of the parties. (43 Am. Jur. 2d Insurance §285 (1982).) Where the policy is specific as to subject matter or coverage, it cannot be extended by implication. 43 Am. Jur. 2d Insurance §281 (1982).

THE BOND LOSS COVERAGE

A careful examination of the bond indicates the specific coverage intended. The loss coverage is described under the heading “INSURING AGREEMENTS.” Paragraph (A) is entitled “FIDELITY” and refers to the “[l]oss through any dishonest or fraudulent act of any of the Employees.” Paragraph (B) covers “[l]oss of Property *** through robbery, burglary *** larceny *** misplacement, mysterious unexplained disappearance.” Paragraph (C) covers those losses listed in paragraph (B) happening when property is in transit. Paragraph (D) covers “Moss through FORGERY OR ALTERATION.” Paragraph (E) covers loss of securities. Paragraph (F) covers loss related to redeeming forged United States savings bonds. Paragraph (G) covers loss to the bank resulting from counterfeit currency. None of the coverage relates, in any way, to bank business decisions or taking action relating to loan collections.

PROPER INTERPRETATION OF THE COVERAGE

Paragraph (A), as stated, is entitled “FIDELITY.”

“Fidelity insurance is that form of insurance in which the insurer undertakes to guaranty the fidelity of an officer, agent, or employee of the assured, or rather to indemnity the latter for losses caused by dishonesty or a want of fidelity on the part of such a person. People v. Rose, 147 Ill. 310, 51 N.E. 246, 44 L.R.A. 124.” Black’s Law Dictionary 943 (4th ed. rev. 1968).

The case No. 75 — L—57 complaint used terms such as “wilful,” “wanton,” “intentional,” “malicious,” “reckless,” “negligent,” “careless,” and “bad faith,” but the action was based on a bank employee calling and collecting loans on behalf of the bank. This cause of action is somewhat similar to those in Wait v. First Midwest Bank/Danville (1986), 142 Ill. App. 3d 703, 491 N.E.2d 795, McClellan v. Banc Midwest (1987), 164 Ill. App. 3d 304, 517 N.E.2d 762, and Champaign National Bank v. Landers Seed (1988), 165 Ill. App. 3d 1090, 519 N.E.2d 957. The conduct alleged necessarily involved business decisions on behalf of the banks, were not alleged to be ultra vires, and had no relationship to direct losses to the bank caused by an employee’s dishonest or fraudulent action.

The plaintiff would extend coverage of the bond to alleged wrongful actions of employees performing their duties for the bank. These alleged actions could even financially benefit the banks, i.e., preventing greater loan losses. The bond’s “INSURING AGREEMENTS” read, as a whole, leave no doubt as to the intended coverage. It does not include business decisions made on behalf of the bank by the bank’s agents, regardless of approval by high level officials of the bank. Any other decision improperly allows coverage implications and conflicts with the obvious intention of the parties. The policy is specific as to the subject matter and coverage.