author: JUSTICE GORMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RONALD HAMMOND, Defendant-Appellant.
    Third District
    No. 3—90—0397
    Opinion filed May 31, 1991.

      Robinson & Skelnik, of Elgin (Josette Skelnik, of counsel), for appellant.
    Gary L. Spencer, State’s Attorney, of Morrison (Judith Z. Kelly, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GORMAN

delivered the opinion of the court:

Defendant Ronald Hammond was charged with making a false report of a theft, disorderly conduct and fraud on an insurance company. Tried before a jury, the defendant was found not guilty of falsely reporting a theft and disorderly conduct but guilty of fraud on an insurance company. Defendant was sentenced to probation conditioned upon serving 90 days of work release, ordered to make restitution and pay a fine and costs. Defendant appeals. We reverse.

The defendant was charged by indictment with three offenses. Count I charged that on July 19, 1989, the defendant committed the offense of fraud on an insurance company by falsely representing that he had suffered a loss by reason of a theft during the course of a burglary and, in so doing, had falsely obtained from the insurance company a sum of money in excess of $25. Count II charged that on July 2, 1989, the defendant had committed the offense of making a false report of a theft by knowingly making a false report of a theft to the police with the intent to defraud an insurer. Count III charged that on July 2, 1989, the defendant had committed the offense of disorderly conduct by knowingly transmitting to a police officer a false report that the offense of burglary had been committed. The defendant pleaded not guilty to the charges and demanded a jury trial.

At trial it was undisputed that the defendant’s son, Michael Hammond, together with Michael’s roommates, Chris Buikema and Steve Prins, had engaged in a scheme to defraud Michael’s insurance company by staging a burglary at the house the three men shared and then submitting a false claim for property allegedly stolen in the burglary. It was also undisputed that as a result of his claim to the insurance company, Michael received a check from the insurance company of $5,381.65.

The defendant was not named as an insured on the policy and no evidence was presented that he sought or obtained any proceeds of the insurance money. The defendant was prosecuted on a theory of accountability, with the prosecution contending that he was aware of the scheme to defraud the insurance company from the outset and had assisted in planning and executing that scheme.

A police officer testified that on July 2, 1989, he received a call of a burglary at 1101 Avenue I in Sterling. Upon arriving at the address, he met with the defendant, who indicated that he had been watching the house while his son and his son’s roommates were in Wisconsin. The defendant told the officer that when he came to the house, he observed a window on the storm door broken out. When he unlocked the door and entered the residence, he found that it had been ransacked and called the police. The defendant took the officer through the house, pointing out items that were missing. The defendant estimated the value of the items missing at over $2,000. While examining the house, the officer observed that the door leading into the house from the garage had been kicked open and the lock on it was broken. After speaking to the defendant, the officer reported that a burglary to the residence had occurred.

Cara Nelson, a claims investigator for Ohio Casualty Insurance Company, testified that she received a loss report relating to the burglary and contacted the insured, Michael Hammond, to investigate the claim. Michael had taken out a one-year renter’s insurance policy in April 1989. After receiving the loss report, Nelson met with Michael at his home, inspected the premises and took a signed statement from him on July 12, 1989. Michael also provided Nelson with a list of items he claimed were either lost or damaged because of the burglary and photographs of some items he claimed were missing, including a photograph of a large television. Nelson further testified that on July 19, 1989, she drafted and delivered to Michael a check in the amount of $5,381.65 to cover the claimed loss. Michael and Chris Buikema were present at the house when she delivered the check, and the defendant arrived shortly thereafter.

Chris Buikema testified that he and Michael formulated a scheme to stage a burglary at the house and defraud the insurer. In furtherance of the scheme, Buikema rented a storage unit in Clinton, Iowa, under the name Chris Stevens where the allegedly stolen property would be stored. Buikema was the only one who had a key to the storage unit. He subsequently received the refund from the manager when he terminated the lease in August 1989.

Buikema testified that he, Michael and Prins carried out the staged burglary on the weekend prior to July 4, 1989. On June 30, 1989, the three loaded several items of property into the defendant’s van, which Michael had use of, and then he and Michael took the property to the storage unit in Clinton. After unloading the property in Clinton, they returned to their residence and messed up the house to make it look as though the house had been burglarized. The following morning he, Michael, Prins, Allen Carter and Michael’s cousin Bobby left for Lake Geneva, Wisconsin, to go camping. The group returned to Sterling on Monday afternoon.

Buikema testified that approximately two weeks prior to the staged burglary, he awoke to find the defendant in the living room of their house. A 26-inch television and a Panasonic VCR from the defendant’s house were in the spot in the living room where Michael usually kept his own television and VCR. Initially, Buikema testified that Michael and the defendant were taking photographs of the two items. He later acknowledged that he had not actually seen Michael and the defendant taking these photographs. While the defendant was present at the house, a real estate agent arrived and asked for permission to take interior and exterior photographs of the house, as it was for sale. Michael and Buikema agreed to this, and one of the photographs taken was of the living room containing the defendant’s television and VCR. After the real estate agent left, he, Michael and the defendant were “all kind of glad and happy that the guy happened to show up,” and the defendant, according to Buikema, told the other two that “it had proof towards the case that we had a 26-inch TV and VCR in our house.”

Buikema further testified to several conversations the defendant had with him, Michael and Prins. One conversation supposedly took place three to four weeks prior to the staged burglary, when the defendant told the others about the time there had been a break-in at his home and he had padded the list of stolen items in order to get a bigger check from his insurance company.

Another conversation took place two to three weeks before the staged burglary. The defendant, a minister, related the time the church burned down and the insurance company wanted to settle for $25,000. The defendant claimed to have called an independent adjuster and ended up receiving $75,000 for the loss.

A third conversation took place two weeks prior to the staged burglary. During that conversation, the defendant brought up the idea of the defendant discovering the burglary while the others were in Wisconsin rather than have them discover it after returning home. According to Buikema, the defendant stated “it would look real good having a reverend [sic] discover the robbery [sic],” that he (defendant) would just stop in and discover it accidentally and would report it, and that maybe he would bring another preacher with him as a witness.

Buikema also related another conversation which he claimed took place a few days after July 4, 1989, in which the defendant indicated that after entering the house on July 2, 1989, he put some “finishing touches” on it before he reported the burglary and took with him his camera, which he discovered sitting on Michael’s bed.

Buikema testified that he was present when Cara Nelson delivered the insurance check to Michael and that the defendant arrived while Nelson was there. Both Michael and the defendant left the house together and were “kind of ticked off” when they returned because the bank would not cash the full amount of the insurance check for Michael.

The insurance scam was eventually uncovered when Buikema and Prins began taking Michael’s property out of the storage unit without his knowledge and selling it to their friends. Some of this property was recovered by the police, who then took statements from Buikema and Prins. Buikema testified that for his part in staging the burglary he was to receive between $500 and $700 from Michael but had only received a total of $320. He had been charged with the same offenses as the defendant and those charges were still pending.

Steve Prins testified next. He, too, had also been charged with the same offenses as the defendant. His testimony concerning the staged burglary was similar to Buikema’s testimony. Prins testified that although he had talked to the defendant three or four times prior to the staged burglary, these conversations were just generalized conversations about how to get money from insurance companies because “I wasn’t suppose [sic] to know he knew what was going on.” Although at one point Prins indicated to the police that the defendant was not aware of what was going on, he later changed his story and informed the police that the defendant had also been involved in the scam.

At trial the State’s Attorney was allowed to read into evidence the entire transcript of the defendant’s testimony before the grand jury. In that testimony, the defendant denied that he knew prior to arriving at his son’s house that he would find a burglary there and stated that he had only gone there because his son had asked him to put the mail in the house while he was gone to Wisconsin. The defendant testified that he had taken his television and VCR to his son’s house about a week before the burglary because his son told him that his own television and VCR were not working properly. His son kept the television overnight because he told his father that he wanted to watch a movie that night with his friends. The defendant was unaware that any pictures had been taken of his equipment.

The defendant stated that he first suspected something was amiss perhaps 7 to 12 days after he discovered the burglary when he went to pick up his son for work and heard his son and Buikema saying something about the insurance settlement. He heard Buikema say “did they go for it?” The defendant then called his son out to the garage and asked him, “[D]id you boys have anything to do with this?” Tears came to his son’s eyes and he responded “Dad, whatever you think you musn’t [sic] say anything to anyone.” His son did not give him any details then or at any time thereafter. The prosecutor continued to question the defendant about his knowledge and whether it was right to do what he had done. The defendant ultimately conceded that, in hindsight, he displayed bad judgment in failing to take any sort of action after he suspected the scam.

Both the defendant’s wife, Jean, and his son, Michael, testified for the defense. Jean and the defendant had been married for 25 years and had two children in addition to Michael, who was 19 at the time of the staged burglary. The Hammonds had asked Michael to leave their home about two years earlier because they did not approve of his lifestyle and felt they no longer had control over his behavior. Jean testified that in addition to his work as pastor of Gospel Tabernacle Church, her husband had been employed in cleaning chimneys and laying carpets. During 1989, Michael had assisted his father in carpet-laying jobs and also did some carpet-laying jobs on his own. He had use of the defendant’s van for that purpose.

Jean did not recall any conversation at her house approximately two weeks before the staged burglary concerning the church fire. However, Jean indicated that the fire had been a very traumatic event in their lives and therefore had probably been discussed many times. Jean explained that the fire had been started when lightning struck a wire which then caused an electrical surge into the church. The day after the fire a man from Chicago called and indicated a willingness to help the Hammonds settle their insurance claim. Prior to receiving the call, the Hammonds were not even aware that persons such as adjustors existed. Although they were initially offered $24,000, through the adjustor the amount finally received in settlement of the claim was $74,000.

During cross-examination the prosecutor questioned Jean about how the $74,000 had been spent. The prosecutor asked what additions and improvements the Hammonds had made to the church and whether the Hammonds had made any improvements or additions to their house. Jean denied that they had made any improvements or additions to their house. The prosecutor then inquired about the person who had investigated the church fire, asking “Is he the only person you saw investigate the arson?” Jean replied “The arson?” and the prosecutor stated “I’m sorry, the fire, is he the only person who investigated the fire?”

Michael Hammond testified that the idea to defraud the insurance company originated with Chris Buikema, but that he quickly agreed to it. Michael testified that no one, at any time, had any discussions with the defendant as to how to defraud the insurance company and that the defendant was in no way involved in the scheme. Michael testified that Buikema had commented that the defendant’s discovery of the burglary was the best part of their plan because the defendant did not know about the scheme and therefore his reaction when he saw the house would be genuine.

Michael indicated that, after he received the settlement check, the defendant drove him to the bank and waited while he cashed his check. The defendant then drove him home. Michael gave some of the money to Buikema and Prins and to his girlfriend. He also took a trip to Las Vegas with some of the money.

During closing arguments, the prosecutor advised the jury that if they believed the defendant first found out about the insurance scam after July 2, 1989, they had to find him not guilty of disorderly conduct and false report of a theft. During his closing argument, defense counsel commented that the defendant did not have an obligation to report a crime he was not a party to and asked what parent would turn his own son in for a crime based only on the slightest information. During her rebuttal, the prosecutor advised the jury that this was not an accurate statement of the law.

One of the instructions given was Illinois Pattern Jury Instructions, Criminal, No. 5.03 (2d ed. 1981) (hereinafter IPI Criminal 2d) (accountability) and IPI Criminal 2d No. 5.04 (defining “withdrawal”). The jury returned verdicts finding the defendant not guilty of false report of a theft and disorderly conduct and guilty of fraud on an insurance company. No post-trial motion was filed by defense counsel.

The defendant contends that the State failed to prove him guilty of the offense of fraud on an insurance company beyond a reasonable doubt. Although this issue was not raised in a post-trial motion, we will review this issue under the plain-error rule. 107 Ill. 2d R. 615(a).

In People v. Herrett (1990), 137 Ill. 2d 195, 561 N.E.2d 1, our supreme court stated:

“The plain error rule permits a reviewing court to consider a trial error not properly preserved for review in two circumstances. First, where the evidence in a criminal case is closely balanced, a reviewing court may consider a claimed error not properly preserved so as to preclude argument of the possibility that an innocent man may have been wrongly convicted. [Citation.] A court will examine the record only to see if the evidence is ‘closely balanced.’ If it is not, there is no need to consider an error which was not properly preserved for review. [Citation.]
***
The plain error rule also may be invoked where the error is so fundamental and of such magnitude that the accused was denied a fair trial. The rule is invoked where it is necessary to preserve the integrity of the judicial process and provide a fair trial.” 137 Ill. 2d at 209-10, 561 N.E.2d at 7-8.

“When presented with a challenge to the sufficiency of the evidence, it is not the function of [the reviewing court] to retry the defendant.” (People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, 277.) “ ‘[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” (Emphasis in original.) (106 Ill. 2d at 261, 478 N.E.2d at 277, quoting Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789.) “‘Once a defendant has been found guilty of the crime charged, the factfinder’s role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution.’ (Emphasis in original.)” 106 Ill. 2d at 261, 478 N.E.2d at 277, quoting 443 U.S. at 319, 61 L. Ed. 2d at 573, 99 S. Ct. at 2789.

The prosecution’s theory of the case was that the defendant knew about the scam from the outset, that he assisted his son and the others in planning it and that he agreed to be the one to discover the burglary and report it to the police. During closing arguments, the prosecutor directed the jury that if they believed the defendant first found out about the scam after July 2, 1989, then they should find him not guilty of the false report of a theft and disorderly conduct charges. The jury followed the prosecutor’s direction. Apparently they did not accept the State’s theory that the defendant had knowledge of the scam prior to reporting it and, thus, found the defendant not guilty on the false report and disorderly conduct charges. We believe that the prosecutor’s direction, combined with the not guilty verdicts, constitutes a conclusive determination that the defendant did not have knowledge of the scam prior to July 2, 1989.

As the State points out, the jury verdicts are not legally inconsistent. The jury could have found that the defendant did something after July 2, 1989, but before July 19, 1989, to assist Michael in the commission of the crime. This court must examine the evidence to determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

There seem to be two actions taken by the defendant after July 2, 1989, which the State seized upon to establish his guilt on the insurance fraud charge. When the defendant overheard his son and Buikema talking, he questioned his son and failed to tell anyone about his suspicions. The second is the defendant’s act on July 19, 1989, of driving Michael to the bank to cash the insurance check.

To prove a defendant guilty of an offense by accountability, the State must prove beyond a reasonable doubt: (1) that the defendant solicited, ordered, abetted, agreed or attempted to aid another in the commission of an offense; (2) that the defendant’s participation took place before or during the offense; and (3) that the defendant had the concurrent, specific intent to promote or facilitate the commission of an offense. (People v. Deatherage (1984), 122 Ill. App. 3d 620, 461 N.E.2d 631.) None of these factors are present in the case at bar.

Assuming the defendant became aware that his son was engaged in an insurance fraud prior to his receipt of the check from the insurance company, defendant’s awareness alone does not render him accountable. Neither is the defendant accountable for his son’s offense by virtue of his failure to prevent his son from completing the offense or to report his son to the police.

Regardless of the relationship between an offender and a person with knowledge of the offender’s commission of an offense, one is not accountable for failing to furnish information to the police about the commission of an offense. Rather, an affirmative act, beyond the mere failure to come forward with information, and beyond even an affirmative denial of knowledge of any information, is required to render one liable. (People v. Donelson (1977), 45 Ill. App. 3d 609, 359 N.E.2d 1225; People v. Thomas (1990), 198 Ill. App. 3d 1035, 556 N.E.2d 721.) Thus, Illinois imposes no obligation on an individual who has knowledge that an offense has been committed to report the offender to the police.

Moreover, even assuming the defendant suspected or knew that his son had committed an illegal act when he drove him to the bank, that additional fact does not render him accountable for his son’s offense. He did nothing to promote or facilitate his son’s commission of the offense before its completion. The offense itself was complete when Michael received the check from his insurance company.

The offense of fraud on an insurance company, insofar as it relates to the allegations in this case, is defined as follows:

“If any person shall obtain or cause to be obtained *** from any insurance company, any sum of money on any policy of insurance issued by any company doing business in this state, *** or shall falsely obtain, cause to be obtained, or attempt to obtain from such insurance company any sum of money upon any policy of such company, by means of false and fraudulent written representations or affidavits *** that the person insured suffered a financial loss by reason of the loss, theft, damage or destruction of the property insured, every person on conviction thereof, if the sum so obtained, attempted or caused to be obtained shall be equal to or exceed the sum of $25, shall be guilty of a Class 4 felony.” Ill. Rev. Stat. 1989, ch. 73, par. 1101.

By the terms of this statute, Michael’s commission of the offense of fraud on an insurance company was complete when he obtained the check from his insurance company’s representative on July 19. The fact that his father thereafter provided him with transportation which enabled him to cash that check does not render the defendant accountable for the offense where, by that point in time, the offense was already completed. Cf. People v. Blitstein (1989), 192 Ill. App. 3d 281, 548 N.E.2d 664 (offense of theft by deception which alleged that defendant obtained by deception control over property of another, to wit, checks or orders for payment of money in excess of $300, was complete when defendant obtained control over a check from the victim, and not when he later cashed the check).

In her closing argument at trial, the prosecutor contended that the defendant was guilty because, after becoming suspicious of his son’s conduct, he “did nothing.” The prosecutor also told the jury, contrary to the law, that they would not be told that an individual has no duty to report a crime. Moreover, she caused an instruction to be given to the jury which suggested that the defendant did have such a duty which he failed to obey. Thus, the jury were given People’s instruction No. 4 (IPI Criminal 2d No. 5.04), which reads as follows:

“A person is not legally responsible for the conduct of another person, if, before the commission of the offense charged, he terminates his effort to promote or facilitate the commission of the offense charged, and wholly deprives his prior efforts of effectiveness in the commission of that offense or gives timely warning to the proper law enforcement authorities or makes proper effort to prevent the commission of that offense.”

This instruction effectively advised the jury that an accused can be held legally responsible for the conduct of another person if he fails to give timely warning to the proper law enforcement authorities or make an effort to prevent the commission of the offense. However, the IPI Committee Notes to this instruction direct that the instruction is to be given in conjunction with the instruction defining accountability “when there is evidence of withdrawal.” (IPI Criminal 2d No. 5.04, Committee Note.) This instruction, therefore, should be given only where the defendant’s defense is that, even though he was initially involved in the offense, he thereafter took steps to terminate his involvement. (See People v. Lykins (1978), 65 Ill. App. 3d 808, 382 N.E.2d 1242, aff'd (1979), 77 Ill. 2d 35, 394 N.E.2d 1182.) Such an instruction is wholly inappropriate in the case at bar, where the defendant’s position was that he was never involved in the offenses charged.

Nevertheless, this instruction, while inapplicable to the case at bar, allowed the prosecutor to argue that the defendant was accountable for his son’s conduct because he suspected his son had done something wrong after July 2, but prior to July 19, and did nothing to report his son or to prevent successful completion of his son’s scheme to defraud his insurance company. It is highly probable that this instruction, combined with the improper argument of the prosecutor, led the jury to convict the defendant of the offense of fraud on an insurance company even though the evidence did not support such a verdict under the law.

In sum, the only evidence the prosecution presented in this case upon which the jury could have convicted the defendant of fraud on an insurance company was that the defendant did not report his son or otherwise prevent commission of the offense after he became suspicious of his son’s involvement in the offense and, that after the offense was committed, he allowed his son to cash the insurance check he had received. This evidence does not render the defendant guilty of the offense charged, and, accordingly, we reverse the defendant’s conviction.

The decision of the circuit court of Whiteside County is reversed.

Reversed.

STOUDER, P.J., and SLATER, J., concur.


source: Caselaw Access Project

author: JUSTICE GORMAN PRESIDING JUSTICE STOUDER,

license: Public Domain

text:
    TESS M. LEE, Plaintiff-Appellant, v. DEANN CANUTESON et al., Defendants-Appellees.
    Third District
    No. 3—90—0543
    Opinion filed May 31, 1991.

      STOUDER, P.J., dissenting.
    Steven D. Rittenmeyer, of Macomb, for appellant.
    Flack, McRaven & Stephens, of Macomb (A. Anthony Ashenhurst, of counsel), for appellees.
   JUSTICE GORMAN

delivered the opinion of the court:

The plaintiff, Tess M. Lee, brought this -action in the circuit court against defendants Bethphage Community Services, Inc. (Bethphage), Deann Canuteson, Kris Hennig, and Robert Rose. This action arises out of the termination of the plaintiff’s employment with Bethphage. The complaint contains three counts: breach of contract, intentional interference with contractual relations, and defamation. The circuit court granted defendants’ motion for summary judgment on the first two of these counts. The circuit court later made a finding permitting immediate appeal from the summary judgment, and it is that appeal the plaintiff is now bringing. We affirm.

In June 1987 the plaintiff was hired by Bethphage. Shortly after the plaintiff was hired, a supervisor gave the plaintiff an informal overview of the policies and procedures of Bethphage, in the course of which the plaintiff was presented with several documents to sign. One such document was entitled “Bethphage Community Services — Employment Agreement” (employment agreement). Some of its significant provisions are as follows:

“The purpose of this agreement is to ensure that both employer and employee are clear about the terms of employment. * * *
* * *
*** In dealing with applicants and staff, a spirit of cooperation and mutual responsibility will be fostered. ***
* * *
*** If you have concerns or suggestions, please bring them to the attention of your supervisor. *** If, after bringing your concern to the attention of your supervisor, you are not satisfied, talk to the next person up in the chain of command. If you remain unsatisfied, follow the formal grievance procedure as outlined in the Personnel Policies and Procedures.”

At the end of this document, just above a line on which the plaintiff signed her name, was this statement:

“I understand the above are general management guidelines and may be changed as business necessity requires. The above does not constitute a written contract and I understand my employment is for no definite period and may be terminated at will.
I acknowledge that we have discussed all the above.”

In her complaint the plaintiff alleges that she “executed documents acknowledging receipt, understanding and willingness to abide by defendant Bethphage’s employment policies and accepted the terms thereof by continuing to work for defendant.”

In March 1988 the plaintiff was promoted to a new position at Bethphage. Also in March 1988, Bethphage distributed an employee handbook to its employees, including the plaintiff. Significant provisions of that handbook include the following:

“This handbook has been prepared to familiarize you with Bethphage’s Personnel Policies and Procedures, as well as a general description of your benefits. ***
* * *
*** In dealing with applicants and staff, a spirit of cooperation and mutual responsibility will be fostered. ***
EMPLOYEE HANDBOOK STATEMENT
*** The Handbook is meant to give you information regarding agency rules, regulations, policies, procedures, and benefits. For more specific information, refer to the Bethphage Policy and Procedure Manual.
Nothing in this Handbook is intended to create an employment contract between Bethphage and an employee either for employment or for the providing of any benefit. If an employment relationship is established, the employee has the right to terminate his/her employment at any time and Bethphage Mission has the same right. *** This Handbook does not constitute a contract of employment, nor does it contain all of the information you will need during the course of your employment. *** [T]he policies, procedures, and benefits outlined in this Handbook are subject to review and change at any time. Changes may only be authorized by the Vice President of Human Resources. ***
* * *
A violation of any of Bethphage’s general work guidelines or policies set forth in this handbook shall be cause for disciplinary action including discharge. ***
* * *
4.3 Disciplinary Measures
To communicate to employees what work habits and skills are expected of them to perform their job satisfactorily, a progressive discipline approach may be used.
When an employee violates a Bethphage work guideline or policy, or job performance is unsatisfactory, the Supervisor will make an evaluation as to what disciplinary measures should be taken. Disciplinary measures include a staff conference, disciplinary probation, suspension or termination. 4.4 Staff Conference
When a disciplinary problem exists, a staff conference will be requested in writing by the Supervisor and held at a mutually agreeable time no later than five working days after the initial request. *** At the staff conference, the Supervisor will follow the format of the Bethphage staff conference form and complete all sections of the form.
* * *
Salaried employees are asked to give at least one month advance written notice of resignation. *** If proper notice is given, employees may receive up to 80 hours [of] accumulated [Paid Days OfQ. ***
* * *
It is the sincere intent of Bethphage to be fair and reasonable with all employees at all times. However, in relationships, problems may develop. *** If an employee *** feels that they [sic] have been treated unfairly, *** the following procedure for solution of such problems may be used without fear of recrimination. Failure to comply with any of the time limits listed below shall constitute a waiver of the grievance:
A. Staff Conference — ***
B. Appeal Process — ***.” (Emphasis in original.)

The plaintiff alleges in her complaint that she read the handbook and accepted its terms by continuing to work for Bethphage.

In November 1988 Rose and Hennig, two managerial employees of Bethphage, without prior notice called the plaintiff into a meeting with them. At this meeting Rose explained some problems in the plaintiff’s work performance as related in a written report by defendant Canuteson (another managerial employee of Bethphage), who was not present at the meeting. According to the plaintiff’s amended affidavit, at this meeting “the terms and conditions of section 4.4 of the Bethphage Employee Handbook were adhered to by defendants and the prescribed form completed.” Rose put the plaintiff on a 30-day disciplinary probation. In response, the plaintiff gave a four-week notice of resignation. In response to that, Rose ordered the plaintiff to clean out her desk and to be gone by the end of the day. A few days later the plaintiff returned to the office to request that she be permitted to work until the end of the four-week period. Rose ordered the plaintiff from the building, but commented that the plaintiff knew the procedure for filing a grievance. The record is silent on whether the plaintiff ever filed such a grievance.

On April 18, 1989, the plaintiff filed her complaint in this case. It consists of three counts. The first seeks recovery for breach of contract. The second seeks recovery for intentional interference with contractual relations. The third seeks recovery for defamation. On June 27, 1990, the circuit court granted defendants’ motion for summary judgment as to the first two counts. On July 17, 1990, the circuit court entered a special finding to permit plaintiff to appeal from the summary judgment under Supreme Court Rule 304 (134 Ill. 2d R. 304). On August 3,1990, plaintiff timely filed her notice of appeal.

The issue on review is whether the circuit court erred in granting summary judgment in defendants’ favor on the first two counts of the plaintiff’s complaint. Summary judgment is proper only where the pleadings, depositions, and admissions on file, together with any affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. See Ill. Rev. Stat. 1989, ch. 110, par. 2— 1005(c).

Essential to the employer-employee relationship is the existence of an employment contract, express or implied. (See A.J. Johnson Paving Co. v. Industrial Comm'n (1980), 82 Ill. 2d 341, 350, 412 N.E.2d 477, 481.) In the construction of an employment contract, the court is seeking to ascertain the intention of the parties. (See Susmano v. Associated Internists of Chicago, Ltd. (1981), 97 Ill. App. 3d 215, 219, 422 N.E.2d 879, 882.) An employment relationship without a fixed duration is presumed to be terminable at will by either party, but this presumption can be overcome by demonstrating that the parties contracted otherwise. (See Duldulao v. Saint Mary of Nazareth Hospital Center (1987), 115 Ill. 2d 482, 489, 505 N.E.2d 314, 317-18.) The nub of this case is determining whether the parties had “contracted otherwise” than that the employment relationship would be terminable at will by either party.

At this time the principal case in Illinois dealing with whether and to what extent an employee handbook or similar statement by an employer creates enforceable contract rights is Duldulao v. Saint Mary of Nazareth Hospital Center (1987), 115 Ill. 2d 482, 505 N.E.2d 314. The Illinois Supreme Court in that case stated:

“[W]e hold that an employee handbook or other policy statement creates enforceable contractual rights if the traditional requirements for contract formation are present. First, the language of the policy statement must contain a promise clear enough that an employee would reasonably believe that an offer has been made. Second, the statement must be disseminated to the employee in such a manner that the employee is aware of its contents and reasonably believes it to be an offer. Third, the employee must accept the offer by commencing or continuing to work after learning of the policy statement. When these conditions are present, then the employee’s continued work constitutes consideration for the promises contained in the statement, and under traditional principles a valid contract is formed.” (Duldulao, 115 Ill. 2d at 490, 505 N.E.2d at 318.)

All three conditions set forth in Duldulao must be present in order for an employee handbook or other policy statement to create enforceable contract rights. See Koch v. Illinois Power Co. (1988), 175 Ill. App. 3d 248, 529 N.E.2d 281.

By way of her complaint, the plaintiff took the position that certain of the defendants breached obligations

(a) “to act fairly and reasonably in disciplinary situations”;
(b) “to act in a manner of mutual responsibility [sic] by communicating expectations and employing a progressive discipline approach”;
(c) “to give plaintiff adequate written notice of a staff conference”; and
(d) “to allow plaintiff to give at least one month written notice of resignation.”

However, for any of the defendants to be so obligated Bethphage must have promised the plaintiff that it would do these things.

There was no enforceable promise “to act fairly and reasonably in disciplinary situations.” The only statement in the employment agreement or the employee handbook that is close to this statement is in the section of the employee handbook on the procedure for grievances and appeals, and it reads: “It is the sincere intent of Bethphage to be fair and reasonable with all employees at all times.” An employee could not reasonably believe that this statement constituted a promise clear enough and certain enough to become a part of an offer of continued employment.

Regarding progressive discipline, the employee handbook states, “To communicate to employees what work habits and skills are expected of them to perform their job satisfactorily, a progressive discipline approach may be used.” (Emphasis added.) This language clearly gave discretion to Bethphage management to use progressive discipline or not in any given case as it saw fit, and so could not be construed as a promise to always use progressive discipline.

With regard to the staff conference, the employee handbook states in relevant part: “When a disciplinary problem exists, a staff conference will be requested in writing by the Supervisor and held at a mutually agreeable time no later than five working days after the initial request.” (Emphasis added.) This statement does not promise any particular form of written request or any minimum period of time an employee would have to prepare for a staff conference, and so it cannot be said that by it Bethphage promised “to give plaintiff adequate written notice of a staff conference.”

The resignation provision in the employee handbook could not possibly be construed as promising anything on the part of Bethphage: “Salaried employees are asked to give at least one month advance written notice of resignation. *** If proper notice is given, employees may receive up to 80 hours [of] accumulated [Paid Days Off].” (Emphasis added.)

The presence of a disclaimer will not always prevent a particular statement in an employee handbook from becoming a term of a contract of employment (see Perman v. ArcVentures, Inc. (1990), 196 Ill. App. 3d 758, 554 N.E.2d 982). In this case, however, the combination of the clarity of the disclaimers in the employment agreement and the employee handbook and the uncertainty of the relevant statements in those documents was such that an employee could not have reasonably believed that the employer intended those statements to be promises that were part of an offer of new or continued employment. Therefore, the circuit court did not err in entering summary judgment for the defendants on the count of the complaint seeking recovery for breach of contract.

No argument has been presented to show any error by the circuit court in granting summary judgment on the count of the complaint claiming intentional interference with contractual relations. Points not argued are waived. (134 Ill. 2d R. 341(e)(7).) Therefore, we need not consider whether summary judgment in defendants’ favor was proper as to count II.

Affirmed.

McCUSKEY, J., concurs.

PRESIDING JUSTICE STOUDER,

dissenting:

After reviewing the majority opinion in the above-captioned case, I must respectfully dissent.

The record reveals that at the November 1988 meeting, the defendants acted as though they were abiding by section 4.4 of the employee handbook. The defendants did not operate as though the employee handbook was rendered a virtually meaningless document by the much emphasized disclaimers. Rather, the defendants’ contemporaneous construction of the employee handbook found the plaintiff to be entitled to a hearing. Indeed, the defendants must have believed they were bound by the requirements of the employee handbook or else they wouldn’t have subscribed to what they thought were the appropriate procedures. The majority opinion, however, unlike the defendants, considers the employee handbook a meaningless document.

The majority opinion significantly limits the holding in Duldulao v. Saint Mary of Nazareth Hospital Center (1987), 115 Ill. 2d 482, 505 N.E.2d 314. It is true that the language in the employee handbook at issue in Duldulao contained specific language such as “always” and “never.” However, the language of the employee handbook in Pine River State Bank v. Mettille (Minn. 1983), 333 N.W.2d 622, which our supreme court relied on in Duldulao, did not contain specific language and yet was found to constitute a valid offer to the employee.

Whether any particular personnel manual modifies any particular employment-at-will relationship and becomes part of the particular employment contract is a question of fact. Evidence relevant to this factual decision includes the language used in the personnel manual as well as the employer’s course of conduct and oral representations regarding it. In addition, if an employer chooses to issue a policy statement or handbook, and by language or action encourages reliance thereon by the employee, the employer cannot then treat the policy as illusory and only selectively abide by it. See Leikvold v. Valley View Community Hospital (1984), 141 Ariz. 544, 688 P.2d 170.

Furthermore, the majority opinion emphasizes the supposed clarity of the disclaimers. This court, however, is not limited to analyzing only the language found in the employee handbook. Indeed, the majority here points out that the presence of a disclaimer will not always prevent a particular statement in an employee handbook from becoming a term of a contract of employment. (See Perman v. ArcVentures, Inc. (1990), 196 Ill. App. 3d 758, 554 N.E.2d 982.) In the instant case, the defendants acted as though they were complying with the terms of the employee handbook. They gave no indication that the disclaimers applied or prevailed over the plaintiff’s claims. The majority opinion here, however, seems to reward the ambiguous language found in the employee handbook and ignores the defendants’ own attempt to abide by the terms of the employee handbook. Surely, our supreme court in Duldulao did not wish to convey a message encouraging illusory employee handbooks.

In any case, I believe a fact question exists whether the terms of the employee handbook combined with the defendants’ actions created contractual rights for the plaintiff. The trial court’s granting summary judgment for the defendants should be reversed.

For these reasons, I must respectfully dissent.


author: PRESIDING JUSTICE STOUDER

text:
    TYLER ENTERPRISES OF ELWOOD, INC., Plaintiff-Appellee, v. WARREN C. SHAFER et al., Defendants-Appellants.
    Third District
    No. 3—91—0180
    Opinion filed June 12, 1991.

      Connolly, Ekl & Williams, P.C., of Clarendon Hills (Patrick J. Williams, of counsel), for appellants.
    Herschbach, Tracy, Johnson, Bertani & Wilson, of Joliet (Kenneth A. Carlson and Roger D. Rickmon, of counsel), for appellee.
   PRESIDING JUSTICE STOUDER

delivered the opinion of the court:

Plaintiff, Tyler Enterprises of Elwood (Tyler), brought an action in the circuit court of Will County against the defendants, Warren Shafer, James Lutz, and Shafer Enterprises. Tyler sought injunctive relief and damages from the defendants based on the following theories: (1) breach of a restrictive covenant; (2) tortious interference with business relations; (3) breach of fiduciary duty; and (4) defamation. The trial court granted the preliminary injunction and the defendants’ petition for this interlocutory appeal pursuant to Supreme Court Rule 307(a)(1) (134 Ill. 2d R. 307(a)(1)).

Tyler develops, markets, and sells various fertilizers and lawn care products. In early 1980, Tyler hired Shafer as its general sales manager. Shafer’s responsibilities included the development and production of products, advertising, the creation of a sales force, management of personnel, building a market base, customer relations, financial matters, and he was responsible for the day-to-day operations of the business. Lutz was hired by Tyler in 1984 as a sales representative.

A short time after beginning to work for Tyler, Shafer executed a stock option agreement which provided him with an option to purchase 200 shares of Tyler stock. The agreement also contained a restrictive covenant, which provides:

“4. As an inducement to the CORPORATION to enter into this Stock Option Agreement, SHAFER shall not for a period of three (3) years after his voluntary termination of employment with the CORPORATION or after the termination of his employment by the CORPORATION for cause, directly or indirectly, own, manage, operate, join, control or participate in the ownership, management, operation, or control of, or be employed or otherwise connected in any manner, with any business which directly or indirectly competes with the business of the CORPORATION within a radius of fifty (50) miles of Elwood, Illinois.”

In November 1988, while still employed by Tyler, Shafer and Lutz, along with Mark Remke, created a corporation known as Remke Enterprises (Remke). Shafer, Lutz, and Mark Remke each owned S8y3% of Remke. Remke was created to market fertilizers to nurseries, garden centers, and landscapers. At no time after creating Remke did Shafer or Lutz ever advise Jim Tyler, the president of Tyler, or any of the officers of Tyler of their ownership interest in Remke.

Shortly thereafter, an audit of Tyler uncovered Shafer’s dealings with Remke. A meeting was held at which Jim Tyler told Shafer and Lutz to cease all involvement with Remke and that they were to devote full time to Tyler. Shafer also was to provide an accounting for all of his dealings with Remke. As it turns out, Shafer never provided the accounting. On August 31, 1990, Tyler terminated Shafer’s employment.

On September 5, 1990, Shafer was given notice of Tyler’s intent to enforce the restrictive covenant. In spite of this, Shafer continued to organize his own fertilizer/lawn care products company, Shafer Enterprises, and continued soliciting the salesmen, material suppliers, and customers of Tyler. Tyler subsequently filed the instant action.

The trial court granted Tyler’s motion for an injunction restraining Shafer from violating the terms of the stock option agreement. This interlocutory appeal followed.

A preliminary injunction is an extraordinary remedy used only in situations where an extreme emergency exists and serious harm would result in the absence of the injunction. (Carbonic Fire Extinguishers, Inc. v. Heath (1989), 190 Ill. App. 3d 948, 547 N.E.2d 675.) The decision to grant or deny injunctive relief rests within the sound discretion of the trial court. (Southern Illinois Medical Business Associates v. Camillo (1989), 190 Ill. App. 3d 664, 546 N.E.2d 1059.) In order for a preliminary injunction to issue, the plaintiff must establish that: (1) he possesses a clear right or interest needing protection; (2) no adequate remedy at law exists; (3) irreparable harm will result if an injunction is not granted; and (4) there is likelihood of success on the merits of the case. Southern Illinois, 190 Ill. App. 3d 664, 546 N.E.2d 1059.

We find that under these circumstances the trial court did not abuse its discretion in determining that Tyler had met its burden of proof, and in granting the preliminary injunction.

The propriety of injunctive relief in the instant case depends upon the enforceability of the restrictive covenant contained in the stock option agreement signed by Shafer, and that determination is a question of law. (Reinhardt Printing Co. v. Feld (1986), 142 Ill. App. 3d 9, 490 N.E.2d 1302.) Covenants not to compete are, in effect, restraints on trade and will be carefully scrutinized to ensure that their intended effect is not to prevent competition per se. (Capsonic Group v. Swick (1989), 181 Ill. App. 3d 988, 537 N.E.2d 1378.) A restrictive covenant may be held enforceable only if the time and territorial limitations are reasonably necessary to protect a legitimate business interest of the employer, a determination which necessarily turns on the facts and circumstances of each case. Southern Illinois, 190 Ill. App. 3d at 672, 546 N.E.2d at 1059.

There are two general situations in which an employer’s legitimate business interests may be found for purposes of enforcing a covenant not to compete: (1) where, by the nature of the business, plaintiff has a near-permanent relationship with its customers and but for his employment, defendant would not have had contact with them; or (2) where the former employee learned trade secrets or acquired other confidential information through his employment with plaintiff and subsequently attempted to use it for his own benefit. (Shapiro v. Regent Printing Co. (1989), 192 Ill. App. 3d 1005, 549 N.E.2d 793.) In the instant case, the record shows that Tyler had a protectable business interest due to the near-permanent relationship it had with its customers.

Under Illinois law, a court may consider many objective factors when determining whether a near-permanent relationship exists between an employer and its customers. The number of years it takes the employer to develop the clientele indicates the parties’ intention to remain affiliated with the employer indefinitely. (McRand, Inc. v. van Beelen (1985), 138 Ill. App. 3d 1045, 486 N.E.2d 1306.) In the instant case, Shafer testified that in the fertilizer/lawn care products industry, it is particularly important to cultivate the loyalty of the customers. According to Shafer, Tyler’s customers were developed over a 10-year period and not merely by the ring of a doorbell. Shafer also testified that his contact with the customers was a direct result of his association with Tyler.

Further, in a highly competitive business, personal customer contact by the employee is important in maintaining customer relationships. (Donald McElroy, Inc. v. Delaney (1979), 72 Ill. App. 3d 285, 389 N.E.2d 1300.) In the instant case, Shafer worked closely with the customers. Because of this extensive customer contact, Shafer received invaluable information including the knowledge of the customer’s individualized needs. As a matter of policy, Tyler put a premium on developing extremely close working relationships between its employees, like Shafer and Lutz, and its customers. In order to foster the relationship between itself and its customers, Tyler offered technical support services in order to tailor the products to the particular needs of its customers.

In addition, after Shafer’s employment was terminated by Tyler, Shafer held numerous meetings with Tyler’s present and former salesmen in order to induce them into joining his company. Shafer did this because he needed not only a sales force to compete, but, more importantly, a sales force that had cultivated a clientele in the particular business that could bring its established clientele to Shafer’s new venture. In fact, Shafer succeeded in luring nearly all of Tyler’s salesmen to his company. This is further evidence that Tyler enjoyed a near-permanent and unique relationship with its customers.

The interest of the employer that needs to be protected here is the interest the employer has in his customers. More specifically, it is the interest the employer has in preventing an employee, like Shafer, from taking over its customers through the contacts that he has made with those customers while working for the employer. See House of Vision, Inc. v. Hiyane (1967), 37 Ill. 2d 32, 225 N.E.2d 21.

A showing of irreparable harm is related to proof of a protectable interest. (Morrison Metalweld Process Corp. v. Valent (1981), 97 Ill. App. 3d 373, 422 N.E.2d 1034.) In the instant case, by directly competing against Tyler, Shafer is injuring his former employer and its established customer relations. Shafer’s position as former head of Tyler’s sales representatives gives him an enormous advantage in his attempt to lure away Tyler’s customer base after it had spent 10 years cultivating their loyalty and trust. Given Tyler’s protectable interest in the clientele with which it had established long-term individual relationships, irreparable injury caused by Shafer’s establishment of a competing business to solicit and serve Tyler clients is presumed. See McRand, Inc. v. van Beelen (1985), 138 Ill. App. 3d 1045, 486 N.E.2d 1306.

The trial court also found that Tyler established irreparable injury and that it did not have an adequate remedy at law to resort to. The record here shows that while still employed by Tyler, Shafer established a corporation (Remke) that competed with Tyler. Shafer owns a one-third interest in Remke from which he received royalties. Shafer later solicited Tyler’s customers and employees thereby creating a situation threatening great and immediate harm to Tyler.

These actions are in direct violation of the language of the restrictive covenant. The above facts show that Shafer has violated the agreement’s prohibition against “being employed or *** connected in any manner with a business which directly or indirectly competes with Tyler.” Thus, an irreparable injury does exist and Tyler does not have an adequate remedy at law.

Finally, Tyler had to prove a likelihood of success on the merits. It is not necessary that Tyler’s proof at this stage be incontrovertible or complete in every detail. The issuance of the injunction does not determine the ultimate rights of the parties nor does it finally decide the merits of the case. All that is necessary is that Tyler raise a fair question as to the existence of the right claimed and lead the court to believe it probably will be entitled to the relief prayed for if the proof should sustain its allegations. (See Office Electronics, Inc. v. Grafic Forms, Inc. (1978), 56 Ill. App. 3d 395, 372 N.E.2d 125.) The record shows a great likelihood that Shafer will succeed on the theories set forth in his complaint. We determine, therefore, that Tyler has presented sufficient evidence to establish a reasonable likelihood of success on the merits of the controversy.

For the foregoing reasons, we affirm the judgment of the circuit court of Will County granting a preliminary injunction against the defendant Shafer.

Affirmed.

BARRY and HAASE, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. DONALD PURCHASE, Defendant-Appellee.
    Third District
    No. 3—90—0568
    Opinion filed April 4, 1991.
    Raymond Kimbell III, State’s Attorney, of Galesburg (Gary F. Gnidovec, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Thomas C. Maas, of Baudino, Potter & Maas, of Farmington, for appellee.
   PRESIDING JUSTICE STOUDER

delivered the opinion of the court:

The defendant, Donald Purchase, was charged with five counts of theft (Ill. Rev. Stat. 1989, ch. 38, par. 16—1(a)). The trial court thereafter granted the defendant’s motion to suppress all evidence seized during a search of his residence. The State appeals, arguing that the trial court erred in determining that the consents obtained from the defendant and his wife were not voluntarily given.

At the hearing on the motion to suppress, the defendant’s wife, Luanna Purchase, testified that around 9:30 a.m. on March 7, 1990, she was home alone when two police officers came to her door. With her permission, they entered the house and told her they were investigating thefts which had occurred at a Farm King store. When Luanna denied knowing anything about the thefts, one of the officers noted that she was pregnant and told her that if she did not cooperate they would put her in jail and take custody of her baby. The officer then asked her to sign a piece of paper. When she asked what it was, he merely stated that it showed her cooperation. Believing the police could take her baby, Luanna signed the paper. The officer covered the top part of the document so she could not read it.

Luanna also testified that the officers led her to believe that they had a valid search warrant. After being joined by three other officers and Luanna’s ex-stepfather, the police searched the house until 6 or 6:30 that evening. Luanna noted that she did not know she could call an attorney or withdraw her consent. She further stated that had she understood her rights, she would not have signed the consent to search form at least until her husband got home.

Luanna’s mother testified that on March 7 she arrived at the defendant’s home around 11 a.m. Upon entering the house, she saw two men in the laundry room and another man in the kitchen. Luanna appeared very upset. When her mother learned what was occurring, she asked whether Luanna had called a lawyer. Luanna said she had not, explaining that the officers had told her that if she cooperated everything would be fine, but if she did not they would take her to jail and make the baby a ward of the court. Luanna’s mother further testified that, when she asked to see a search warrant, the officer in the kitchen told her the other officers had it. She thereafter left. When she returned around 4 p.m., the police were still searching the house and Luanna was still upset.

The defendant testified that his wife called him at work on March 7. He returned her call between 10:30 and 11 a.m. Upon learning what was happening, he drove home, arriving there between 11 and 11:30 a.m. The defendant talked with three officers, noting that they were polite and accommodating. His wife appeared nervous and scared, and told him that the police had said they could take her to jail and make the baby a ward of the court. The officers then explained to him why they could do that. Though he asked to see their search warrant, they never showed him one, even though one officer claimed they had a warrant. Throughout this time, the search continued and did not terminate until around 7 p.m. At some points, the defendant helped the police move seized items into a truck.

The defendant further testified that approximately two or three hours after he arrived home, the police asked him to sign a form. He initially said he would not sign it without reading it. The officers nonetheless kept the top part covered and told him that it merely showed he was cooperating. At one point during the conversation, his wife interrupted and said that she was not given a choice but was told that she could either sign the form or be taken to jail and lose her baby. The defendant testified that he eventually signed the form after being told he had to and being led to believe it merely showed he was cooperating. The form indicated that it was signed at 1:55 p.m.

The defendant and the State stipulated that the police officers did not possess a search warrant. Further, they did not have an arrest warrant for the defendant or his wife.

Illinois State Police special agent Kenneth Kedzior testified that the defendant was a suspect in thefts from a Farm King store. On March 7, he and two other officers went to the defendant’s home around 10 a.m. They told Luanna why they were there and, after being let in the house, advised her of her constitutional rights. After Luanna told them that none of the stolen items would be found in her house, they asked her for consent to search the house. When she agreed orally, Agent Kedzior completed a consent to search form and asked her to sign it. Before she signed it, Luanna was told that it was a consent to search form and that she did not have to sign it. Further, she read the document before signing it. Agent Kedzior stated that neither he nor either of the other two officers ever told Luanna that if she refused to sign the form they could make her baby a ward of the court. He noted that she did not appear to be upset at any time. He further noted that she was never told that the officers had a search warrant.

According to Agent Kedzior, the defendant arrived at the residence around 1:30 p.m. He thereafter denied any involvement in the thefts and signed a consent to search form. Before the defendant signed the form, Kedzior told him it was a consent to search form and left the document in full view. Agent Kedzior testified that the search ended around 6 p.m.

Agent Lance Adams, who also participated in the search, testified to essentially the same facts as Agent Kedzior.

The trial court found that Luanna was in a very coercive and duressful environment when she signed the consent form. It further found that the police created the impression they had a search warrant and that Luanna had no choice but to sign the form. The court concluded that Luanna had not understood the nature of the consent form when she signed it and had not done so voluntarily. Similarly, the court found the defendant’s testimony more credible than the officers.’ Of particular importance, the court concluded that the defendant was home for a couple of hours before the officers thought about getting his consent for the search. The court therefore found that since Luanna’s consent was invalid and the defendant’s consent was not gained until hours into the search, the search was tainted and that taint continued throughout the entire search. Finally, the court specifically found that under the circumstances the defendant’s consent was also involuntary.

On appeal, the State argues that the trial court erred in determining that the consents obtained from the defendant and his wife were not voluntarily given.

For a consent to have been voluntarily given, the consentor must have been under no duress or coercion, actual or implied, and the consent must have been unequivocal, specific, and freely and intelligently given. (People v. Lee (1981), 93 Ill. App. 3d 894, 417 N.E.2d 1090.) In determining the voluntariness of the consent, questions involving the witnesses’ credibility and the weight to be given their testimony are left largely to the discretion of the trial court. (People v. Branham (1985), 137 Ill. App. 3d 896, 484 N.E.2d 1226.) Since the voluntariness of a consent is a factual question, the trial court’s finding will be upheld unless it is found to be manifestly erroneous. People v. Koniecki (1985), 135 Ill. App. 3d 394, 481 N.E.2d 973.

In its brief, the State presents a lengthy, piece-by-piece analysis of the witnesses’ testimony and the trial judge’s findings. By taking statements out of context and exaggerating the importance of minor discrepancies, it attempts to show that the judge’s findings were contradictory and his decision was unreasonable. We find its position unpersuasive. This case presents a simple issue of whether the defendant’s or the State’s witnesses were more credible. Based on considerable evidence from the defense that the two consents were obtained through coercion and trickery, the court found that the consents were not voluntary. Under these circumstances, we find that its decision was not manifestly erroneous.

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

Affirmed.

BARRY and GORMAN, JJ., concur.


author: JUSTICE UNVERZAGT

text:
      In re MARRIAGE OF SANDRA O. DOWD, Petitioner-Appellee, and THOMAS DOWD, Respondent-Appellant.
    Second District
    No. 2—90—0903
    Opinion filed May 31, 1991.
    Robert A. Chapski and Randy K. Johnson, both of Law Office of Robert A. Chapski, Ltd., of Elgin, for appellant.
    Harry Schaffner, of Schaffner & Van Der Snick, P.C., of Geneva, for appellee.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

Respondent, Thomas Dowd, appeals from a judgment of dissolution of marriage entered by the circuit court of Kane County based on irreconcilable differences. Respondent maintains that the proof presented at trial did not establish that the parties lived “separate and apart” for a period in excess of two years or that the marriage was irretrievably broken down, as required by section 401(a)(2) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1987, ch. 40, par. 401(a)(2)).

Petitioner has filed a motion to dismiss the appeal on the ground that the appeal is frivolous because the issue presented therein is moot. Respondent has filed objections to petitioner’s motion. This court ordered the motion and the objections thereto be taken with the case, and at the outset we direct our consideration to this preliminary question.

Petitioner asserts in her motion and accompanying affidavits that a woman with whom respondent is romantically involved and the woman’s two children have been living with respondent since June 1990. Petitioner further states that the two children refer to respondent as “Dad” and are using his surname, that the woman represents that she is respondent’s wife, and that respondent and the woman are living on a resident, continuing, conjugal basis. By these averments, petitioner is apparently attempting to establish that respondent’s conjugal relationship with this woman indicates that he has accepted the benefits of the dissolution decree and is now estopped from subsequently challenging its validity.

In his objections, respondent does not address or deny petitioner’s assertions, nor has he filed any counteraffidavits. While, generally, well-alleged facts within an affidavit must be taken as true when not contradicted by counteraffidavit, that rule is typically applied, by virtue of Supreme Court Rule 191(a) (134 Ill. 2d R. 191(a)), only to affidavits in proceedings under sections 2—1005, 2—619, and 2—301(b) of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, pars. 2—1005, 2—619, 2—301) and does not apply to affidavits filed in conjunction with all other types of civil proceedings. (Marquette National Bank v. B.J. Dodge Fiat, Inc. (1985), 131 Ill. App. 3d 356, 362.) As there is no issue, here, as to summary judgment, involuntary dismissal, or jurisdiction over the person, the requirements of Rule 191(a) need not be invoked. Nevertheless, an examination of the affidavits accompanying petitioner’s motion shows that the specific facts set forth therein are not declared to be made on the personal knowledge of the affiants but on information relayed to the affiants by others. As petitioner has failed to attach any other material to her motion to support her contention of mootness, although matters dehors the record can be considered insofar as they concern the question of mootness (Unity Ventures v. Pollution Control Board (1985), 132 Ill. App. 3d 421, 430), petitioner’s motion to dismiss this appeal is denied, and we move on to consideration of the issue raised on appeal by respondent.

Respondent contends that the trial court erred in determining that the marriage between the parties should be dissolved on the basis of irreconcilable differences because the proof was insufficient to show that the parties lived separate and apart in excess of two years or that the marriage was irretrievably broken down, as required by the “no-fault” provision of the Illinois Marriage and Dissolution of Marriage Act (the Act) (Ill. Rev. Stat. 1987, ch. 40, par. 401(a)(2)). It is respondent’s position that the “living separate and apart” ground for dissolution set forth in section 401(a)(2) of the Act requires that spouses live physically separate and apart for two years. Respondent urges this court to reject the holding in In re Marriage of Kenik (1989), 181 Ill. App. 3d 266, that the state of “living separate and apart” can be realized without a physical distance between the parties. We, however, are in agreement with the Kenik court’s interpretation of the no-fault provision.

As pointed out in Kenik, the legislative debates surrounding the enactment of the no-fault provision disclose its sponsors intended an expansive reading of the statute and that it was not necessary for individuals in a marriage to live apart to make the provision applicable. State Senator William A. Marovitz, the senate sponsor of the bill, declared that it was up to the discretion of the trial court to determine whether parties exist “separate and apart.” Marovitz explained:

“If the judge determines that living separate and apart they have to be living in separate households, so be it. If the judge determines that living ... apart ... they can be living under the same roof but there is [sic] no conjugal visits, they ... are living in separate bedrooms, they are doing *** their own laundry, their own meals, whatever, that’s up to the judge and that’s ... what the case law is today.” 83d Ill. Gen. Assem., Senate Proceedings, November 3, 1983, at 60.

Testimony adduced in the Kenik case revealed that, although the parties resided in the same house until August or September of 1986, they had ended all marital relations a year before the husband filed for dissolution in May 1985. They used separate bedrooms, had no meaningful communication with each other, and shared the family’s fundamental financial obligations. The Kenik court determined that under the no-fault statute, “dissolution is predicated upon a finding of ‘irretrievable breakdown’ of the marriage due to ‘irreconcilable differences’ ” and that “this is a state which can be realized without physical distance between the parties.” (Kenik, 181 Ill. App. 3d at 274.) Based on the facts before it, the Kenik court found that no error arose from the trial court’s finding that the parties lived “separate and apart” while residing in the same house.

In the instant case, the testimony established that the parties were married in 1970 and had one child, Adam, born in 1971. In November 1985 petitioner moved out of the marital home. She returned in May 1986 based on respondent’s agreement to seek marital counseling with her. The parties, however, never went to counseling although, according to respondent, the parties had attended many marital counseling sessions in the past.

Following her return home in May 1986, petitioner returned to the marital bed for about two weeks. Thereafter, until she moved out again in July 1988, petitioner slept on the couch. In fact, by respondent’s testimony, petitioner began sleeping on the couch in 1984 when the parties first moved into their house in St. Charles. By both parties’ testimony the last time petitioner expressed her love for respondent was in 1986 and the last time the couple had sexual relations was during an attempted reconciliation trip to Jamaica in August 1987. Respondent stated that this was one of many reconciliation trips.

Petitioner filed for dissolution in June 1988; it was the third time during their marriage that she had begun dissolution proceedings. By the time petitioner again moved out of the marital home in July 1988, little conversation occurred between the parties. For the most part, the parties still did take dinner together, but it was done apparently for the sake of their son, and any dinner conversation was usually directed toward the son or about the son.

Based on these facts, it is apparent that irreconcilable differences existed in this case and that an irretrievable breakdown of the marriage occurred long ago. The evidence established that the legitimate objects of matrimony had been destroyed over the years, that the parties were unable to live together as husband and wife, and that no prospects of reconciliation existed. Although no physical separation of two years had occurred prior to the dissolution, the parties had been living “separate and apart” for more than two years. We conclude, therefore, that the trial court did not err in determining that the marriage between the parties should be dissolved under the no-fault provision of the Act.

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

Affirmed.

REINHARD, P.J., and DUNN, J., concur.


author: JUSTICE DUNN

text:
    WENDY K. WEISENBURN, Plaintiff-Appellee, v. CHARLES E. SMITH, Defendant-Appellant.
    Second District
    No. 2—90—0438
    Opinion filed May 24, 1991.

      Keely Howe Truax, of Parrillo, Weiss & Moss, of Chicago, for appellant.
    No brief filed for appellee.
   JUSTICE DUNN

delivered the opinion of the court:

This cause was arbitrated pursuant to Supreme Court Rule 86 requiring mandatory arbitration. (134 Ill. 2d R. 86.) Defendant, Charles E. Smith, appeals the judgment entered on the arbitration award in favor of the plaintiff, Wendy Weisenbum. Defendant claims the trial court erroneously entered judgment in favor of the plaintiff, despite the fact that defendant had rejected the award pursuant to Supreme Court Rule 93 (134 Ill. 2d R. 93). We agree.

Plaintiff brought suit to recover damages to her automobile resulting from a collision with the defendant’s automobile. In her complaint, plaintiff alleged the accident was the result of the defendant’s negligence. Defendant denied the accident was caused by his negligence. Because this cause was a civil action for money not exceeding $15,000, the matter was subject to mandatory arbitration pursuant to Supreme Court Rule 86. (134 Ill. 2d R. 86.) As such, the matter was set for hearing on February 14, 1990.

On December 8, 1989, plaintiff filed a notice to produce at trial requesting the defendant be available to testify as an adverse witness at both the arbitration hearing and trial pursuant to Supreme Court Rule 237. (134 Ill. 2d R. 237.) Defendant failed to appear in person at the arbitration hearing on February 14, 1990, but his counsel was present. The arbitration panel awarded the plaintiff damages in the amount of $5,452.23, plus costs. On February 28, 1990, defendant filed his notice of rejection of award and request for a trial in accordance with Supreme Court Rule 93. 134 Ill. 2d R. 93.

The plaintiff objected to this request stating defendant’s failure to appear personally at the arbitration hearing pursuant to Supreme Court Rules 91 and 237 resulted in the waiver of defendant’s right to reject the award. Defendant filed a response to the plaintiff’s objection stating he had complied with Rule 91 requiring his presence at the arbitration proceeding, either in person or through counsel, and that Rule 237 was irrelevant to the issue. The trial court entered judgment on the arbitration award stating the defendant’s notice of rejection was deemed waived due to the defendant’s failure to appear at the arbitration hearing.

On appeal, defendant contends he was not required to appear in person at the arbitration hearing and that he preserved his right to reject the arbitration award by having his counsel present at the hearing. We agree. Because the plaintiff, as appellee, failed to file a brief on appeal, we will decide this case in accordance with our supreme court’s decision in First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128.

At issue in this case is the relationship between the supreme court rules governing mandatory arbitration and the Code of Civil Procedure, as well as other supreme court rules. Defendant asserts Rule 237 cannot be used to require a party be present at the arbitration hearing because Rule 91 provides that attendance by counsel is sufficient. The plaintiff disagrees.

The supreme court rules governing mandatory arbitration provide a framework for alternative dispute resolution in civil actions for money not exceeding $15,000, excluding interest or costs. (134 Ill. 2d R. 86.) Rule 91 pertains to the presence of the parties at the hearing. It provides:

“The arbitration hearing shall proceed in the absence of any party who, after due notice, fails to be present. *** The failure of a party to be present, either in person or by counsel, at an arbitration hearing shall constitute a waiver of the right to reject the award and a consent to the entry by the court of a judgment on the award.” 134 Ill. 2d R. 91.

Rule 93 allows any party who was present at the hearing, either in person or by counsel, to file a notice of rejection and a request for trial. (134 Ill. 2d R. 93.) Defendant asserts that because Rule 91 provides for attendance at the hearing either in person or by counsel, he abided by terms of the rule and therefore preserved his right to reject the award. However, the trial court concluded that, because the defendant failed to attend the hearing after being requested to do so pursuant to Supreme Court Rule 237, he waived his right to reject the award.

Rule 86 discusses the applicability of the Code of Civil Procedure and the rules of the supreme court to arbitration proceedings. It states in pertinent part:

“Notwithstanding that any action, upon filing, is initially placed in an arbitration track or is thereafter so designated for hearing, the provisions of the Code of Civil Procedure and the rules of the Supreme Court shall be applicable to its proceedings except insofar as these rules otherwise provide.” 134 Ill. 2d R. 86(e).

The committee comments regarding Rule 86 specifically state that the committee added Rule 86(e) to dispel any belief that the arbitration procedure was sui generis and to avoid any misconception that the Code of Civil Procedure or the rules of the supreme court were not applicable to arbitration proceedings. Furthermore, Rule 90, governing the conduct of the hearings, specifically provides the provisions of Rule 237 shall be equally applicable to arbitration hearings as they are to trials.

Defendant argues that Rule 237, which allows the appearance of witnesses to be compelled at trial, does not apply to the parties of an arbitration proceeding because the rules pertaining to arbitration provide otherwise. Specifically, defendant claims that, because Rule 91 provides for a party to be present either in person or by counsel at the hearing, a notice to produce a party at the arbitration proceeding as an adverse witness pursuant to Supreme Court Rule 237 is inconsistent and, as such, has no effect. We disagree with this interpretation.

Defendant would have us read Rule 91 in isolation, ignoring the other rules pertaining to mandatory arbitration because he believes they are inconsistent. Clearly, the committee did not intend such a reading. The defendant is correct when he states that a party to the arbitration proceeding has the option of attending in person or by counsel. However, it is not inconsistent to require a party’s presence at the hearing when so requested pursuant to Supreme Court Rule 237, which has been specifically incorporated into the arbitration procedure pursuant to Rule 90(g), nor is it inconsistent to impose sanctions for the failure to appear.

In construing statutes, our supreme court has held that the intent of the legislature in enacting a statute must be determined by examining the entire statute and by construing each material part of the legislation together. (Castaneda v. Illinois Human Rights Comm'n (1989), 132 Ill. 2d 304, 318; People ex rel. Tuohy v. Barrington Consolidated High School District No. 224 (1947), 396 Ill. 129, 138; see also Beiermann v. Edwards (1990), 193 Ill. App. 3d 968, 979.) A court should consider each part or section of a legislative act in connection with every other part or section, and not each part alone, in determining the purpose or intent of the legislature. Castaneda, 132 Ill. 2d at 318; People v. Handzik (1951), 410 Ill. 295, 302.

In addition, this court has held that parts of a comprehensive statutory scheme should be read in pari materia in order to ascertain the legislature’s intent and to avoid injustice. Statutory provisions related to the same subject matter should be construed harmoniously where possible. Rawles v. Hartman (1988), 172 Ill. App. 3d 931, 935.

Accordingly, in construing Rules 86, 90, 91, 93 and 237 harmoniously, we conclude a party may be required to attend an arbitration proceeding pursuant to Supreme Court Rule 237. Because the rules of the supreme court governing arbitration specifically provide for the application of Rule 237 to arbitration proceedings, and because Rule 237 provides for sanctions under Rule 219(c) for failure to comply with an order or a rule, sanctions may be imposed for the failure to appear. Rule 237 provides for sanctions under Rule 219(c), which includes barring a defense relating to that issue, barring witnesses from testifying concerning that issue, or entering judgment by default.

However, such a failure to appear cannot be deemed a waiver of the defendant’s right to reject the award. Such a conclusion would effectively read parts of Rules 91 and 93 out of the arbitration scheme. In this case, the defendant was served with a notice to appear at the arbitration proceeding and chose not to attend. However, his counsel was present as required by Rule 91. We cannot say the trial court’s order deeming his failure to appear a waiver of his right to reject the arbitration award was proper. Defendant preserved his right to reject the award by having counsel present at the proceeding despite the plaintiff’s request under Rule 237 that he appear at trial.

Accordingly, the judgment of the circuit court of Du Page County in favor of the plaintiff is reversed, and the cause is remanded for further proceedings.

Reversed and remanded.

REINHARD, P.J., and UNVERZAGT, J., concur.


author: PRESIDING JUSTICE REINHARD

text:
      In re PHILLIP ROBINSON, a Person Found Subject to Involuntary Admission (The People of the State of Illinois, Petitioner-Appellee, v. Phillip Robinson, Respondent-Appellant).
    Second District
    No. 2—90—0482
    Opinion filed May 24, 1991.
    Guardianship & Advocacy Commission, of Elgin (William E. Coffin, of counsel), for appellant.
    Gary V. Johnson, State’s Attorney, of Geneva (William L. Browers and Marshall M. Stevens, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE REINHARD

delivered the opinion of the court:

Following a hearing in the circuit court of Kane County, respondent, Phillip Robinson, was declared to be a person subject to involuntary admission to a mental health facility pursuant to the Mental Health and Development Disabilities Code (Code) (Ill. Rev. Stat. 1989, ch. 91½, pars. 1—100 through 6—107).

Respondent appeals and raises the following issues: (1) whether respondent was served with notice of the hearing as required by statute pursuant to valid court direction; (2) whether, contrary to the statutory requirement, the facility director did not prepare and the trial court did not consider a dispositional report; (3) whether, contrary to the statutory requirement, the trial court failed to specify the least restrictive, determinative period of respondent’s involuntary hospitalization; and (4) whether there was clear and convincing evidence that respondent was a person subject to involuntary admission.

On April 6, 1990, respondent was involuntarily admitted to the Elgin Mental Health Center. On that day, a doctor completed a certificate for respondent’s admission. A second certificate was completed and filed later that day. On May 6, 1990, a medical records assistant, Phyllis Malone, filed an affidavit of proof of service of a notice of a hearing which was served on J. Mackeben, R.N. On the same day, Phyllis Malone served a notice of hearing on Phillip Robinson and J. Mackeben, R.N. The notice of hearing stated that the hearing was to be held on April 12, 1990. The hearing was set pursuant to the procedures provided in section 3 of Kane County general order 90 — 1. At 1:02 p.m. on April 6, 1990, the petition, certificate, affidavits, notices of hearing and rights of recipients were filed in the circuit court of Kane County. The second certificate was filed on April 9, 1990.

On April 12, 1990, the Kane County circuit court held a hearing on the petition to involuntarily admit respondent. The trial judge prefaced the hearing by noting that “[t]he ordering of service, the setting of the matter for hearing, and the appointment of the Public Defender [were] done pursuant to Kane County Administrative Order 90 — 1.” Section 6 of general order 90 — 1 states the following:

“Section 6. Pursuant to Chapter 91½ sections: 3—509, 3—611, 3—901, 4—307 and 4—407 it is hereby ordered that the Department of Mental Health and Developmental Disabilities through the Facility Director at the facility where the respondent is residing shall be responsible for insuring that notice is sent as required under the relevant statutes (to those persons entitled to notice) and shall provide actual notice until such time as pursuant to §3—201 a form is developed with permits sufficiently reasonable generation of the notice with the Circuit Clerk.”

The court then asked the public defender the following questions, and she gave the following answers:

“Q. Ms. Soule, is there any issue here as to the validity of the service?
A. No, Judge.
Q. Is there any issue as to the timeliness of this hearing?
A. No.
Q. Have you had an adequate opportunity to prepare?
A. Yes.”

The only witness to testify for the State was Dr. Teresita Arcinas. The parties stipulated to her qualifications as an expert in the field of psychiatry. Dr. Arcinas’ opinion was that respondent was suffering from mental illness, specifically, an adjustment disorder with disturbance of conduct and emotion. She defined “adjustment disorders” as a maladaptive reaction to psychosocial “stressors” which in this case were family, business and alcohol problems. Respondent’s symptoms included irritability, impulsivity, threats and mild depression. Dr. Arcinas also stated that respondent told her that, when he becomes angry, he verbally threatens the family, leaves, and then becomes intoxicated. He told her that he thought about suicide and ran into a busy street prior to his admission. She also said that respondent had been in two fights recently and had bruises and contusions on his head. She also testified that respondent had repeatedly threatened his wife who, being afraid of him, obtained a restraining order for protection. Dr. Arcinas opined that she reasonably expected respondent to inflict serious physical harm upon himself or another in the near future. Although no treatment plan was filed with the court, Dr. Arcinas stated there was a written plan “spelling out our goals.” She outlined a treatment plan in which she would, first, get respondent and his wife together to talk about their problems and, second, treat respondent for his alcohol problem. She thought it would take three weeks to attain the goals in the treatment plan.

On cross-examination, Dr. Arcinas admitted that respondent denied that he attempted to commit suicide and stated that, to her knowledge, he has never attempted to commit suicide. She was also unaware of any criminal charges against respondent. Respondent physically abused his wife a year before and continues to verbally threaten his wife, who is afraid of him. According to Dr. Arcinas, respondent had not done anything physical to anybody in respondent’s unit at the Elgin Mental Health Center and was capable of taking care of himself. She also admitted that any injuries respondent may have received in the fight were not major and that respondent was only involved in one fight.

John Robinson, respondent’s brother, testified that both he and his father were willing to help respondent, that his family wants him home, and that respondent would be living with their father. Robinson also stated that respondent had never been violent towards him.

Respondent testified that he planned to start counseling at the McHenry Family Mental Health Center and to move in with his father. He recognized that he had a drinking problem, but he wanted to “get away from this problem.” Respondent stated that he was not suicidal and had never attempted to commit suicide. According to respondent, he planned to go to Alcoholics Anonymous meetings, make appointments at the Mental Health Center, and work things out with the family. Respondent called his wife every day, and she was willing to attend counseling with him. There were no criminal charges pending against him. Respondent stated that prior to his recent drinking problem he had gone seven years without drinking and could “go the rest of [his] life after this experience.”

On cross-examination, respondent said he never told Dr. Arcinas that he walked in front of trucks. He also said he went to a bar after leaving the Elgin Mental Health Center because he felt drugged.

The trial court found that respondent suffered from a mental illness and could be expected to inflict serious physical harm on himself or another. The court further noted that it considered the testimony of the treatment plan and found the Department of Mental Health to be the least restrictive environment for respondent.

We need only address respondent’s contention that the trial court failed to comply with the statutory requirements in section 3—810 of the Code that the facility director, or such other person as the court may direct, prepare a report “including information on the appropriateness and availability of alternative treatment settings, a social investigation of the respondent, a preliminary treatment plan, and any other information which the court may order” and that “if the respondent is found subject to involuntary admission, the court shall consider the report in determining an appropriate disposition.” In this regard, respondent contends that the record does not show that a dis-positional report in compliance with section 3—810 was prepared by the facility director or considered by the trial judge. Respondent relies on this court’s decision in In re Blume (1990), 197 Ill. App. 3d 552, 554 N.E.2d 1100, requiring strict compliance with section 3—810. Ill. Rev. Stat. 1989, ch. 91½, par. 3—810.

The State responds that, because the record shows that there was testimony concerning the treatment plan and that the trial judge took notice of the testimony of the treatment plan in his dispositional findings, there was sufficient compliance with the statute. The State urges us to overrule our decision in In re Blume and follow the reasoning of the Appellate Court, Fourth District, in In re James (1990), 199 Ill. App. 3d 316, 556 N.E.2d 839, wherein the court found compliance with section 3—810 through testimonial evidence even though the dispositional report was not contained in the record at the time of the hearing and, alternatively, found a waiver of the issue by the respondent’s failure to object to the sufficiency of the report in the lower court.

We note that since In re Blume was filed our supreme court in In re Splett (1991), 143 Ill. 2d 225, held that the purposes of section 3—706, a different section of the Code regarding notice of the hearing, were satisfied where there was no challenge at trial and no prejudice was alleged. Splett, 143 Ill. 2d at 232.

Nevertheless, we feel bound by stare decisis to follow the dictates of In re Blume, which requires strict compliance with section 3—810, until the apparent conflict between our decision in In re Blume and that of the Appellate Court, Fourth District, in In re James is resolved by our supreme court.

In In re Blume this court held that section 3—810 “does not suggest that substantial compliance would be sufficient, and we cannot condone the failure to prepare and present a formal report which was intended to assist the trial court in making a disposition.” (In re Blume, 197 Ill. App. 3d at 559, 554 N.E.2d at 1104.) Despite considerable testimony in this record concerning the treatment plan and the trial judge’s reliance on the testimony of the treatment plan, because the record does not show that a formal dispositional report was prepared and presented to the trial judge in strict compliance with the statutory provision as required in In re Blume, the order of involuntary commitment must be reversed. Our resolution of the case on this basis makes it unnecessary to address the remaining issues on appeal advanced by respondent.

The judgment of the circuit court of Kane County is reversed.

Reversed.

NICKELS and DUNN, JJ., concur.