author: JUSTICE EGAN PRESIDING JUSTICE RAKOWSKI,

text:
    OHANNES KOROGLUYAN, Plaintiff-Appellee, v. CHICAGO TITLE AND TRUST COMPANY, as Trustee, et al., Defendants-Appellants.
    First District (6th Division)
    No. 1—89—3149
    Opinion filed May 10, 1991.

      RAKOWSKI, P.J., dissenting.
    Howard C. Goode, of Northbrook, for appellants.
    Greenberg, Keele, Lunn & Aronberg, of Chicago (Nathan H. Lichtenstein and Kevin S. Besetzny, of counsel), for appellee.
   JUSTICE EGAN

delivered the opinion of the court:

The plaintiff, Ohannes Korogluyan, filed an action to confirm a sale of property held as security for a loan in default. The judge granted summary judgment to the plaintiff. The defendants, John, Dimitra, Peter and Patricia Saltouros, contend that factual questions existed that could not be properly decided in a summary judgment.

The defendants were the owners of the beneficial interest in a land trust. The corpus of the trust was a single-family residence located at 7216 East Prairie, Lincolnwood, Illinois.

On January 24, 1983, Peter Saltouros executed a note in favor of Washington National Bank (the Bank) in the amount of $40,000. As security for the note, all four of the defendants executed and delivered to the Bank an assignment of the beneficial interest under the trust.

The note was renewed periodically, and as of March 6, 1984, Peter Saltouros was indebted to the Bank in the sum of $37,000. The entire principal and accrued interest on the note became due and payable on September 4, 1984. Peter Saltouros failed to pay any part of this indebtedness.

The Bank was subsequently liquidated, and the Federal Deposit Insurance Corporation (FDIC) acquired the note, which was then in default. On July 14,1988, the FDIC assigned the note to the plaintiff.

On July 26, 1988, the plaintiff notified Peter Saltouros that he was in default on the note and demanded full and immediate payment of the outstanding balance of principal and interest, which the plaintiff calculated at $67,631.44, plus $26.30 per diem interest thereafter.

The plaintiff subsequently gave notice, in accordance with section 9 — 504 of the Illinois Commercial Code (Ill. Rev. Stat. 1987, ch. 26, par. 9—504), that the beneficial interest would be sold on August 30, 1988. The notice was sent by registered mail to the defendants at their last known address, and by regular mail to the trustee. Notice of the sale was also published on three different dates in the Chicago Daily Law Bulletin.

The sale was held on August 30, 1988, at the offices of the plaintiff’s attorney. The plaintiff was the sole bidder at the sale, and he purchased the property for $69,993.18. The plaintiff sent a letter to Peter Saltouros, demanding payment of the entire purchase price plus $2,000 for an alleged deficiency. The entire claimed amount was broken down as follows:

Reasonable expenses of preparing for sale $ 941.24
Reasonable attorney fees $ 2,500.00
Satisfaction of indebtedness secured by the security interest $ 68,551.94

The plaintiff’s attorney prepared a report of the sale and gave it to the trustee. The trustee informed the plaintiff that, in order for the trustee to recognize a successful bidder at a sale held pursuant to section 9 — 504, the trustee required a judicial confirmation of the sale. The plaintiff filed this action in the circuit court of Cook County on October 13,1988, seeking confirmation of the sale.

All the defendants appeared; an answer and two affirmative defenses were filed on behalf of all defendants except Peter Saltouros. On February 9, 1989, the attorney for the defendants was granted leave to withdraw. On April 6, 1989, the plaintiff filed a motion for summary judgment supported by two affidavits, asserting that the answer and affirmative defenses filed on behalf of the defendants failed to raise a genuine issue of material fact. The plaintiff also filed a motion for default judgment against Peter Saltouros for his failure to file an answer or other responsive pleading. A default judgment was entered on April 14, 1989, against Peter Saltouros. Shortly later, Howard C. Goode was granted leave to file his appearance on behalf of the defendants, and the default judgment against Peter Saltouros was vacated. On June 16, 1989, Peter Saltouros filed his answer to the complaint, admitting that the defendants executed an assignment of the beneficial interest under the trust to secure payment of the loans made to him by the Bank, and denying all other allegations of the complaint.

The defendants filed their response to the plaintiff’s motion for summary judgment, alleging that the plaintiff’s demand letter sought an amount in excess of the amount due under the note, and that, therefore, the collateral sale was unfair and not in compliance with the Uniform Commercial Code.

The plaintiff’s motion for summary judgment was granted, and the sale was confirmed. On October 25, 1989, the defendants filed a motion to reconsider, claiming that the plaintiff’s demand for payment in excess of the amount due prevented the defendants from exercising their right of redemption. The motion to reconsider was denied.

The plaintiff has not seen fit to answer the defendants’ argument that a question of fact existed over whether the amount demanded was in excess of the amount of the indebtedness and, therefore, that summary judgment should not have been granted. Instead, he contends that the defendants have not properly appealed from the order granting summary judgment, that the absence of a report of proceedings requires affirmance of the judge’s order and that the defendants’ response to the motion for summary judgment did not contain counter-affidavits that rebutted the allegations of the affidavits he filed.

The defendants have filed a reply brief in which they point out that the plaintiff has not responded to their arguments on the merits of the case. The defendants, however, have not responded to the arguments made by the plaintiff.

The procedural posture of the case is this: Although the plaintiff has not answered the defendants’ argument on the merits, his position should be no less favorable than if he had not filed a brief at all. Under First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493, we would be entitled to pass on the defendants’ claim even if the plaintiff had not answered. Therefore, we will decide the defendants’ arguments on the merits. (See Cohn v. Receivables Finance Co. (1972), 7 Ill. App. 3d 869, 288 N.E.2d 894; People ex rel. City of Chicago v. Commercial Union Fire Insurance Co. (1926), 322 Ill. 326, 153 N.E. 488.) On the other hand, the defendants have not responded in their reply brief to the points raised by the plaintiff. But, what is fair for one should be fair for both. Therefore, we will address the arguments raised by the plaintiff, even though the defendants have not answered them, and we will address them first.

The defendants filed a notice of appeal from the order denying their motion to reconsider; they did not specify in the notice that they were appealing from the order granting summary judgment. The plaintiff’s argument is twofold: he maintains that we are restricted to reviewing the propriety of the judge’s ruling on the motion to reconsider and that the ruling on the motion to reconsider is judged on review under an abuse-of-discretion standard. He argues further that no abuse of discretion has been shown. We do not agree with either of the plaintiff’s arguments.

The purpose of a motion to reconsider is to bring to the court’s attention newly discovered evidence which was not available at the time of the hearing, changes in the law or errors in the court’s previous application of existing law. (Kaiser v. MEPC American Properties, Inc. (1987), 164 Ill. App. 3d 978, 518 N.E.2d 424.) As a general rule a motion to reconsider is addressed to the trial court’s sound discretion. (In re Marriage of Hopkins (1982), 106 Ill. App. 3d 135, 435 N.E.2d 897.) But a motion to reconsider an order granting summary judgment raises the question of whether the judge erred in his previous application of existing law. Whether a court has erred in the application of existing law is not reviewed under an abuse-of-discretion standard.

The purpose of a notice of appeal is to inform the party in whose favor a judgment has been rendered that the unsuccessful party desires review. The notice is jurisdictional, but where a defect in the notice is one of form rather than substance, the appellate court is not necessarily deprived of jurisdiction. Ebert v. Dr. Scholl’s Foot Comfort Shops, Inc. (1985), 137 Ill. App. 3d 550, 484 N.E.2d 1178.

In Pickle v. Curns (1982), 106 Ill. App. 3d 734, 435 N.E.2d 877, the plaintiff’s notice of appeal stated that he was appealing from the order denying his motion to reconsider the dismissal of his third amended complaint. The appellate court stated that the notice of appeal clearly implied a request for reversal of the underlying order dismissing the complaint and held that the plaintiff’s failure to specify the underlying order was merely an error of form. (Pickle, 106 Ill. App. 3d at 737.) Similarly, in this case, the plaintiff had adequate notice that the defendants were appealing the order granting summary judgment, especially since the motion for reconsideration was virtually identical to the response to the plaintiff’s motion for summary judgment.

The defendants did not include in the record on appeal a transcript of the proceedings at which the judge heard arguments and granted summary judgment. The plaintiff contends that this court, therefore, does not have a sufficient basis upon which to review the judge’s decision. We disagree. Where the trial judge’s decision is based solely upon the pleadings and affidavits, and no evidence has been heard, the appellate court may review the issues of law without a report of proceedings. (Flannery v. Marathon Oil Co. (1979), 75 Ill. App. 3d 690, 394 N.E.2d 706.) The issue before this court is one of law. (See McNames v. Rockford Park District (1989), 185 Ill. App. 3d 291, 540 N.E.2d 1119.) Because the issue on appeal is solely .a question of law and does not involve evidentiary issues, the absence of a transcript of the proceedings in the trial court does not bar review by this court. McNames, 185 Ill. App. 3d at 293. See also Woodfield Ford, Inc. v. Akins Ford Corp. (1979), 77 Ill. App. 3d 343, 395 N.E.2d 1131; Kuhlman v. Cotter (1968), 92 Ill. App. 2d 475, 234 N.E.2d 815.

The plaintiff’s last contention is that an unauthenticated copy of a letter from the FDIC, which was attached to the defendants’ response to the motion for summary judgment, was legally insufficient and may not be considered. The plaintiff did not raise that argument in the trial court. Again we must disagree with the plaintiff’s position. The sufficiency of an affidavit in support of or in opposition to a motion for summary judgment cannot be challenged for the first time on appeal. (Peltz v. Chicago Transit Authority (1975), 31 Ill. App. 3d 948, 335 N.E.2d 74.) Although the FDIC letter is not an affidavit, it was submitted to the court in support of the defendants’ response to the plaintiff’s summary judgment motion; therefore, the letter is properly before this court. See In re Application of County Collector of Cook County, for Judgment and Order of Sale Against Certain Real Estate (1974), 23 Ill. App. 3d 923, 320 N.E.2d 456. See also Miller v. St. Charles Condominium Association (1986), 141 Ill. App. 3d 834, 491 N.E.2d 125; Healy v. Owens-Corning Fiberglas (1989), 187 Ill. App. 3d 182, 543 N.E.2d 110.

We turn now to the defendants’ argument that a factual question remained unresolved that could not be decided on summary judgment. We repeat that the plaintiff did not respond to this argument.

The proceedings are governed by the Uniform Commercial Code (the Code) (Ill. Rev. Stat. 1987, ch. 26, par. 1—101 et seq.). After default on any obligation, a secured party may dispose of collateral to satisfy the indebtedness, but “every aspect of the disposition including the method, manner, time, place and terms must be commercially reasonable.” (Ill. Rev. Stat. 1987, ch. 26, par. 9—504(3).) Before the secured party has disposed of the collateral, the debtor may “redeem the collateral by tendering fulfillment of all obligations secured by the collateral as well as the expenses reasonably incurred by the secured party *** and to the extent provided in the agreement and not prohibited by law, his reasonable attorneys’ fees and legal expenses.” Ill. Rev. Stat. 1987, ch. 26, par. 9—506.

In support of his motion for summary judgment, the plaintiff introduced the affidavit of his attorney which alleged that the plaintiff had made the only bid on the property at a public auction (which was attended by two other apparently prospective bidders); that the bid was $69,913.18; and that the attorney delivered the certificate of sale to the plaintiff. Disbursements listed in the affidavit included $941.24 for “reasonable” expenses; $2,500 for “reasonable” attorney fees and legal expenses and $68,551.94 for satisfaction of the indebtedness, leaving a deficiency of $2,000.

In their answers, the defendants denied that $68,551.94 represented the amount of the indebtedness. Attached to the response to the motion for summary judgment was a letter from the FDIC to its attorney dated February 3, 1988, which showed the principal balance due the FDIC to be $37,000, accrued interest of $19,100.59 for a total of $56,100.59 and per diem interest of $12.9247. The response also included the letter from the attorney for the plaintiff dated July 26, 1988, which demanded payment of $67,631.44 with per diem interest of $26.30. In the motion to reconsider, the defendants also argued that the claimed costs and attorney fees were excessive and that those amounts should be evaluated.

It is necessary to pinpoint the precise issue raised by the defendants’ arguments. The position taken by the defendants in the trial court and in this court may be summarized: The judgment creditor made an excessive demand for payment before the sale. Therefore, the subsequent public sale was not commercially reasonable, the notice of sale was not reasonable and the sale was not made in good faith. The defendants do not maintain that the plaintiff failed to follow the requirements of the Code as to notice. The defendants did not claim in the trial court, nor do they in this court, that the purchase price was too low or was the result of fraud or collusion. The defendants have not cited, nor has our research discovered, any case which holds that an excessive demand for payment by a secured creditor before the sale vitiates the subsequent sale or renders the sale or notice commercially unreasonable. The case cited by the defendants, Henderson v. Lemna (1979), 76 Ill. App. 3d 168, 394 N.E.2d 1070, involved a breach of contract action.

To sum up, the Code provides for notice of sale of collateral. The purpose of that notice is to enable the debtor to protect his interest in the secured property by paying the debt, finding a buyer or being present at the sale to bid on the property. (Lake Shore National Bank v. McCann (1979), 78 Ill. App. 3d 580, 396 N.E.2d 1301.) The Code also provides that, if the secured party is not complying with the statute, the debtor may seek judicial relief before the sale takes place. Ill. Rev. Stat. 1987, ch. 26, par. 9—507(1).

The defendants received the plaintiff's demand on or about July 26, 1988. They expressed no objection to the amount of indebtedness claimed. They received the notice of sale on or about August 4. They did not appear at the sale or seek any judicial relief. In our judgment they should not now be permitted to complain of the legality of the sale itself. The fact that the secured party was the purchaser does not require any different conclusion in this case. The Code expressly provides that the secured party may buy the collateral at a public sale. (Ill. Rev. Stat. 1987, ch. 26, par. 9—504(3).) The Code does distinguish between a third-party purchaser and a secured party purchaser to the extent that the third-party purchaser takes the property free of any of the debtor’s rights, even though the secured party did not comply with the requirements of the Code, if the third-party purchaser did not buy in collusion with the secured party or, in any case, if the third-party purchaser acted in good faith. (Ill. Rev. Stat. 1987, ch. 26, par. 9—504(4).) In this case the secured party notified the defendants of the amount of the indebtedness. Having received no response either to the demand or to the notice of sale, he had no reason to believe at the time he bid that the defendants would contest the amount of the indebtedness. Significantly, he bid an amount greater than the claimed indebtedness.

Acceptance of the defendants’ argument that proof that a secured party demanded an amount in excess of the actual debt invalidates a sale would gut the orderly procedures contemplated by the Code. Any-secured party would be foolhardy to bid at a public sale unless he first was assured that there was no dispute over the amount due. If the debtor expressed disagreement over the amount, the only safe recourse for the secured party would be an adjudication of the due amount before the sale. As we have pointed out, a third-party purchaser takes free of any interest of the debtor if the purchaser is unaware of any deviation from the requirements of the Code. To put the third-party purchaser on notice, however, the debtor would need only appear at the public sale and announce to all present that the secured party had demanded an amount in excess of the actual debt. The looming specter of a lawsuit which could render any sale a useless act would have a pronounced chilling effect on any prospective bidder. Rejection of the defendants’ argument is even more compelled under the facts of this case — the defendants did nothing until after the action to confirm the sale was filed.

The defendants also maintain that they did not have a reasonable opportunity to redeem the collateral as provided under the Code. We disagree. The debtor’s right to redeem collateral is restricted to “any time befare the secured party has disposed of collateral or entered into a contract for its disposition under Section 9 — 504 or before the obligation has been discharged under Section 9 — 505(2).” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 26, par. 9—506.) The first suggestion that the defendants wished to redeem the collateral came in their motion to reconsider the order granting summary judgment. Any claim of the right to redeem, therefore, came too late. (See Old Colony Trust Co. v. Penrose Industries Corp. (3d Cir. 1968), 398 E2d 310.) The case cited by the defendants, Interstate Electric Supply Co. v. Contractors & Engineers, Inc. (1987), 161 Ill. App. 3d 676, 515 N.E.2d 182, does not assist their position. That case involved an action to enjoin the sale of collateral.

The defendant’s last claim is that the sale should be set aside because the plaintiff allegedly violated the provision of the Code that “[e]very contract or duty within this Act imposes an obligation of good faith in its performance or enforcement.” Ill. Rev. Stat. 1987, ch. 26, par. 1—203.

Allegations of failure to act in good faith in the performance of duties arising under section 1—203 of the Code do not state a claim for relief. (Washburn v. Union National Bank & Trust Co. (1986), 151 Ill. App. 3d 21, 502 N.E.2d 739.) In Washburn the court spoke as follows:

“[Sjection 1 — 203 is directive, rather than remedial, and is implemented by such provisions as the ‘commercially reasonable’ requirement of section 9 — 507(2). Having found that the sale of collateral here was commercially reasonable within the meaning of the Code, we cannot say that, nonetheless, the sale violated the [secured party’s] duty of good faith. [Citation.] There is no lack of good faith in acting as authorized by the Code. [Citation.]” (151 Ill. App. 3d at 27.)

Similarly, because we find that the defendants have failed to establish that the sale was not “commercially reasonable,” we necessarily conclude that there is a failure to show that the plaintiff did not act in good faith.

We believe the defendants have misdirected their arguments. Their arguments would be proper as a defense to any action brought by the plaintiff to recover any alleged deficiency and in any action brought by the defendants against the plaintiff to recover any surplus or to recover in damages. (Ill. Rev. Stat. 1987, ch. 26, pars. 9—504(2), 9—507(1).) Consequently, they are not without a remedy. Assuming no time limitation bar, they may maintain an action for any surplus or any other damages, and at that time they may raise the argument that their indebtedness was several thousand dollars less than the amount claimed, and they would be entitled to a hearing on the reasonableness of the attorney fees and costs. (See Interstate Electric Supply Co. v. Contractors & Engineers, Inc. (1987), 161 Ill. App. 3d 676, 515 N.E.2d 182.) Indeed, there is no reason why the defendants could not have filed a counterclaim in these proceedings seeking reimbursement for any surplus paid by the plaintiff over the amount of the actual indebtedness and an adjudication on the reasonableness of the attorney fees and costs.

The plaintiff’s complaint did not contain a prayer for a deficiency judgment. However, the notice of sale recited that the plaintiff reserved the right to and intended to seek any deficiency judgment from the debtor after the sale. The judgment order recited, in part, that “the report of sale and distribution is confirmed.” We disagree with any holding that the order constituted a judgment that the amount of indebtedness claimed by the plaintiff was correct or that the attorney fees and costs were reasonable. To be valid, a judgment must show distinctly, and not inferentially, that the matters in the record have been finally disposed of in favor of one of the litigants, or that the rights of the parties have been finally adjudicated. (Kaybill Corp. v. Cherne (1974), 24 Ill. App. 3d 309, 320 N.E.2d 598.) In order to render a judgment a bar to further proceedings on the same cause of action, it is essential that it should be so specific and definite and free from ambiguity as to show clearly what was the claim or cause of action adjudicated. (23A Ill. L. & Prac. Judgments §293 (1979).) We repeat that the pleadings did not ask for the findings that would be required to support a deficiency judgment. We add that any conclusion that the order recited such findings would be unreasonably strained. In short, we hold that the order was not res judicata on the amount of the indebtedness or the reasonableness of attorney fees and costs.

For these reasons, we judge that no triable issue of fact was before the judge for his determination of whether the sale should be confirmed. The judgment of the circuit court is affirmed.

Judgment affirmed.

LaPORTA, J., concurs.

PRESIDING JUSTICE RAKOWSKI,

dissenting:

Defendants’ position on appeal is that the secured party’s balance due exceeded the actual amount due pursuant to the FDIC letter. The difference amounted to $9,139.77. Plaintiff’s brief does not dispute this fact. Rather, it argues that the FDIC letter was “unauthenticated” and therefore it was proper for the trial court to enter judgment in accordance with plaintiff’s affidavit. Given the majority position that the FDIC letter was properly before the trial court, it becomes clear that a material issue of fact was present to preclude the entry of summary judgment.

The majority affirms entry of summary judgment which confirmed the report of sale and distribution because defendants failed to object to the improper demand prior to sale and instead waited until the confirmation hearing to raise the issue. The majority opinion finds support for this position in section 9 — 507(1) (Ill. Rev. Stat. 1987, ch. 26, par. 9—507(1)). The statute, however, does not mandate action be taken prior to the sale. Rather, it states “[i]f it is established that the secured party is not proceeding in accordance with the provision of this Part disposition may be ordered or restrained on appropriate terms and conditions.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 26, par. 9—507(1).

The majority further suggests that the defendants have misdirected their arguments and have a remedy by way of an action to recover any surplus. Again I must disagree. The order granting summary judgment confirmed the report of sale and distribution which reflects sale proceeds of $69,993.18, total disbursements of $71,993.18 and a resulting deficiency in the amount of $2,000. Insomuch as the secured party’s amount due was disputed, litigated and decided by the trial judge, any attempt to relitigate the same issues would be barred by the doctrine of res judicata. I respectfully submit that the majority attempts to confirm the sale as being “commercially reasonable” but does not confirm that part of the report of sale and distribution reflecting receipts, disbursements and a $2,000 deficiency. As a result of the foregoing reasons, I would reverse the trial court’s entry of summary judgment and remand the cause to the circuit court for further proceedings.


source: Caselaw Access Project

author: JUSTICE GREEN

license: Public Domain

text:
    ALPINE ACRES HOMEOWNERS ASSOCIATION, Plaintiff and Counterdefendant-Appellee, v. OLEN LEONARD et al., Defendants and Counterplaintiffs-Appellants.
    Fourth District
    No. 4—90—0514
    Opinion filed May 9, 1991.

      Stuart Dobbs, of Stratton, Dobbs, Nardulli & Lestikow, of Springfield, for appellants.
    Thomas R Burns, of Phelps, Kasten, Verticchio & Ruyle, of Carlinville, for appellee.
   JUSTICE GREEN

delivered the opinion of the court:

In this case, we must decide whether landowners of property adjacent to a subdivision have a right of passage over a privately maintained road which is located within that subdivision. We affirm the circuit court orders which held that the disputed road is a private road and enjoined the owners of adjacent land from using it.

The road at issue lies entirely within the Alpine Acres Subdivision (Alpine Acres), as illustrated on the appended map. The road’s right-of-way begins at a point where it intersects with a public road and proceeds through the subdivision in a northerly direction. The road’s right-of-way then turns west and extends to the subdivision’s western border. The improved portion of the road does not, however, extend to the western end of its right-of-way; the improvements end a few feet west of the westernmost driveway which abuts the road.

On November 15, 1989, plaintiff Alpine Acres Homeowners Association (Association) filed a complaint for a permanent injunction against defendants Olen Leonard and Ronald P. Baron in the Macoupin County circuit court. The Association alleged it owns the private roads in Alpine Acres, which are private property and may be used only by Alpine Acres residents and their invitees. The complaint further alleged (1) the roads in Alpine Acres are not maintained by the township road commissioner or the Macoupin County superintendent of highways, (2) the roads in Alpine Acres have not been accepted as public roads by the highway commissioner, (3) the roads in Alpine Acres have not been incorporated into the Brighton Township road system, and (4) the roads in Alpine Acres have not been dedicated to public use.

The Association further alleged that without permission or acquiescence of it or of the Alpine Acres residents, defendants recently commenced using the private roads in Alpine Acres to gain ingress to and egress from their real estate which borders on Alpine Acres. The Association alleged defendants’ continuing use of the Alpine Acres roads was a continuing trespass and was contrary to directions of it and the Alpine Acres residents. The Association asserted that as a result of defendants’ continued use of the Alpine Acres roads, “the plaintiff has suffered and will be unable to control access to their premises, unable to maintain and regulate the same, and continue to suffer irreparable harm, damage and injury unless the acts and conduct of the defendant [sic] complained of above are enjoined.” The Association alleged it has no adequate remedy at law and requested defendants be permanently enjoined from using the Alpine Acres roads for ingress to and egress from their properties.

In their answer filed January 31, 1990, defendants admitted the road at issue has not been incorporated into the Macoupin County or Brighton Township systems of publicly maintained roads, but denied the road has not been dedicated to public use, as well as all other salient allegations of plaintiff’s complaint.

In a counterclaim which they also filed on January 31, 1990, defendants alleged (1) on April 18, 1972, the road in question was removed from the Macoupin County tax rolls; (2) immediately upon the road being laid out, defendants and other members of the general public began using it for ingress to and egress from real estate owned by one or more of defendants which borders and abuts the westernmost boundary of the roadway; (3) beginning on April 18, 1972, defendants openly and notoriously used the road without interference, until, at an unspecified time, certain landowners in Alpine Acres began interfering with said use; (4) from the inception of the Alpine Acres subdivision in 1972, defendant Leonard has contributed funds to help defray the expenses of maintaining the road and has contributed labor and equipment in furtherance of its maintenance whenever asked to do so; (5) the road in question directly connects with the Macoupin County highway system onto a Macoupin County highway; (6) the road at issue is a public highway within the meaning of section 2 — 202 of the Illinois Highway Code (Code) (Ill. Rev. Stat. 1989, ch. 121, par. 2—202); and (7) defendants have no adequate remedy at law. Defendants requested (1) a declaratory judgment finding that the disputed road is a highway within the meaning of the Code, and (2) an injunction in aid of the declaratory judgment prohibiting plaintiff from interfering with the quiet use and enjoyment of the road by defendants and other members of the general public.

At a trial held April 30, 1990, Thomas Gazda, the Macoupin County superintendent of highways, testified that in his opinion the roads within Alpine Acres are not public roadways. He also stated that to his knowledge, the county has never assumed any responsibility for maintenance of the roadway within the subdivision. However, he stated that the road on the subdivision’s southern border is a public highway which is at least in part maintained by Brighton Township. On cross-examination, Gazda testified that to his knowledge, no formal attempt has been made to have the road within Alpine Acres made a public road.

Alan Lobbig testified that during or about 1972, he created the Alpine Acres subdivision and filed the subdivision plat. Lobbig stated that he made inquiries concerning the road within the subdivision becoming a public road, but received negative responses from both the township road commissioner and the Macoupin County highway superintendent. Lobbig testified that he informed purchasers of lots in Alpine Acres that in the event maintenance of the road within the subdivision was not assumed by the township, each homeowner in the subdivision was to bear a proportionate share of the cost of maintaining it.

Lobbig stated that probably 10 years previously, he had informed defendant Leonard that the road within Alpine Acres was a private road. He further testified that the improved portion of the road within Alpine Acres ends 50 feet east of the western border of the subdivision, or, in other words, a few feet west of the last residential driveway on the road. Lobbig subsequently suggested he may have informed defendant Leonard that the road was a private road only three or four years previously. Lobbig further testified he recently deeded the real estate occupied by the disputed road to the Association, and that he had taken no affirmative steps to have the real estate containing the road removed from the tax rolls.

On cross-examination, Lobbig indicated that when the road within Alpine Acres was established, he intended that it be available for use by Alpine Acres residents and their invitees. Also, Lobbig stated that at one time defendant Leonard owned the real estate immediately to the west and north of Alpine Acres, and that after the road through the subdivision became available, Leonard began using it to get his machinery on and off his property to the west, which he owned when the subdivision was platted. Lobbig testified that he and some of the subdivision residents hauled in rock and otherwise maintained the disputed road. He acknowledged that defendant Leonard plowed snow on the road. Lobbig further stated that he did not file a petition or do anything else of a formal nature to have the road declared a public highway

The Association’s next witness was Glenn Linder, who resides at the west end of Alpine Acres, on the south side of the disputed road. Linder testified that at one time, defendant Leonard levelled and filled the unimproved portion of the road. Linder also stated that on two occasions, Leonard removed barricades and obstructions which had been placed at the end of the road. Linder further testified that on occasion, Leonard “bladed” the improved portion of the road. Linder stated that he once told Leonard that he “wanted to keep it [the disputed road] as a private road.” Linder indicated the reason for his feeling this way was the possibility of increased traffic which would result from construction of a new subdivision adjacent to the west side of Alpine Acres.

Marsha Wilson, another Alpine Acres resident, indicated her concerns about the disputed road becoming available for public use were the same as those voiced by Linder. On cross-examination, Wilson stated barricades were placed at the end of the road for the first time in 1986. Wilson also testified that she had engaged in fruitless discussions with defendant Leonard concerning her possible purchase of some of his adjoining property. Wilson stated the Association was incorporated on June 14, 1989.

Testifying in his own behalf, defendant Leonard indicated he owns or has owned property which lies to the west and north of Alpine Acres, and that some of this property has been sold to defendant Baron. He further stated that before the disputed road was platted “there was a field road that went through a part of this road.” He testified that since the disputed road was platted, he used it for “[a]ny purpose I needed to go to plant my crops, check my crops, check cattle, haul cattle, visitors come down, hunt, trap, picked berries, mushrooms, whatever is necessary, anybody that wants to use it is welcome, never, never no stoppage until recently.”

Leonard stated that he first sold property adjacent to Alpine Acres to Baron “[p]robably about 3 years ago,” and that Baron has an option to purchase additional property. If Baron exercises this option, he will own everything to the west of Alpine Acres that is now owned by Leonard. Leonard also stated that church groups, hunters, and people participating in hayrides use the road in question for access to his property. Furthermore, he testified that he has “bladed” the disputed road on numerous occasions, “[f]rom day one up until [a] couple [of] years ago when they built the blockade.” Leonard also stated that he had previously paid maintenance expenses with respect to the road.

Leonard testified that his access to the disputed road was first interfered with about six to eight years ago, when about a half-dozen short steel posts were placed in the road. Leonard removed these posts. Leonard’s use of the road was subsequently obstructed in approximately August 1988, when a fence and posts were placed across the west end of road. He likewise removed this barricade. Leonard stated there was no change in his use of the road after it was barricaded for the first time.

On cross-examination, Leonard testified that Lobbig had never asked him not to use the disputed road, but had told him that it was a private road.

Several witnesses, including defendant Baron, testified on behalf of defendants that they and others had used the disputed road on numerous occasions since 1972 to gain access to land adjacent to the western boundary of Alpine Acres. Defendant Baron testified on cross-examination that before purchasing property west of Alpine Acres in the spring of 1988, he reviewed a legal opinion prepared by defendant Leonard’s attorney concerning the status of the disputed road. Baron further stated that traffic on the road has probably increased as a result of his purchase of land west of Alpine Acres.

In a judgment order entered June 28, 1990, the circuit court (1) held that the road through Alpine Acres is a private road and is not a public highway, (2) ordered that a permanent injunction be entered in the Association’s favor, and (3) ordered that defendants take nothing by their counterclaim. A permanent injunction order entered July 5, 1990, enjoined defendants, their agents, attorneys, and all persons in active concert and participation with them from using the road through Alpine Acres. This order was stayed pending appeal.

In appealing the circuit court’s injunction order and denial of relief on their counterclaim, defendants argue that the evidence establishes that the road through Alpine Acres became a public highway by virtue of both “An Act to revise the law in relation to plats” (Ill. Rev. Stat. 1989, ch. 109, pars. 1 through 10.1) (hereinafter the Plat Act) and the Code (Ill. Rev. Stat. 1989, ch. 121, par. 1—101 et seq.). The portion of defendants’ argument premised on the Code relies exclusively on sections 2—202 (listed under “Division 2. Definitions”) and 6 — 325 of that Code, which provide:

“Highway — any public way for vehicular travel which has been laid out in pursuance of any law of this State, or of the Territory of Illinois, or which has been established by dedication, or used by the public as a highway for 15 years, or which has been or may be laid out and connect a subdivision or platted land with a public highway and which has been dedicated for the use of the owners of the land included in the subdivision or platted land where there has been an acceptance and use under such dedication by such owners, and which has not been vacated in pursuance of law. The term ‘highway’ includes rights of way, bridges, drainage structures, signs, guard rails, protective structures and all other structures and appurtenances necessary or convenient for vehicular traffic. A highway in a rural area may be called a ‘road’, while a highway in a municipal area may be called a ‘street’.” Ill. Rev. Stat. 1989, ch. 121, par. 2—202.
“In counties having less than 3,000,000 inhabitants, roads or streets in platted subdivisions and dedicated to public use shall be included in and incorporated into the township or district road system without any hearing or petition therefor required by the preceding Sections of this Division, when and if such roads or streets conform to the rules, specifications and regulations regarding location, width, grades, surface and drainage structures prepared by the county superintendent of highways and adopted by the county board. The highway commissioner shall determine when such dedicated roads and streets so conform and shall thereupon make an order to incorporate them into the township or district road system and file one copy of such order in the office of the district clerk and one copy with the county superintendent of highways. If the highway commissioner refuses or fails to make such an order, any 3 interested persons may appeal to the county superintendent of highways to determine if such roads and streets so conform, and if his finding is favorable, he shall make an order to incorporate them into the township or district road system and shall file such order in the office of the district clerk.” (Ill. Rev. Stat. 1989, ch. 121, par. 6-325.)

Defendants argue that since the road in issue connects a platted subdivision to a public highway, and has been dedicated to the use of residents of the subdivision and accepted by them, it is a public road by virtue of section 2 — 202. Defendants assert that the facts thát the road has not been accepted by the township road commissioner and is not publicly maintained are of no consequence in determining whether the public has a right to use it. Defendants further contend that section 6 — 325 recognizes the road as public.

In order for a road to constitute a “highway” within the meaning of section 2 — 202, it must fall within one of the alternative definitions of a highway set forth in that section. As we wiH later discuss, no portion of the disputed road within Alpine Acres has been dedicated to public use by means of either a statutory or a common law dedication. Moreover, there is no evidence that the road was otherwise laid out in pursuance of any State or territorial law. Thus, the disputed road is not a highway within the meaning of the first two definitions of that term contained in section 2 — 202.

For purposes of addressing the remaining definitions of a highway contained in section 2 — 202, the question crucial to the outcome of this appeal is the status of the unimproved portion of the disputed road, which commences a few feet west of the westernmost driveway abutting the road and extends to the western boundary of Alpine Acres. If this portion of the road is not a highway, it necessarily follows that section 2 — 202 does not confer upon defendants a right to use the disputed road as a means of ingress to and egress from their property adjacent to the west side of Alpine Acres.

For a road to be deemed a highway under the 15-year provision of section 2 — 202, a road must be “shown *** [to have] been openly and notoriously used as an open and public highway in common by the public continuously without interruption” for a 15-year period. (Swinford v. Roper (1945), 389 Ill. 340, 343-44, 59 N.E.2d 863, 864-65; see also Zacny v. Sasyk (1975), 30 Ill. App. 3d 93, 332 N.E.2d 568.) The evidence in this case does not establish that defendants used the westernmost portion of the disputed road without interruption for a period of 15 years. The evidence establishes that Leonard’s use of the road through Alpine Acres began, at its earliest, in 1972. Leonard testified that his use of the road was first interfered with six to eight years previously, which would have been during the years 1982 through 1984. Thus, Leonard’s testimony itself, disproves the proposition that the public enjoyed uninterrupted use of the disputed road for a 15-year period.

We further conclude that the westernmost portion of the disputed road is not a highway within the meaning of the final definition of that term contained in section 2 — 202. As previously indicated, no driveways abut the westernmost portion of the road through Alpine Acres, which is nevertheless the most important part of the road for purposes of our decision regarding the applicability of section 2 — 202. Because of the lack of any evidence that Alpine Acres residents use the westernmost portion of the disputed road as a means of access to their properties, it cannot be said that that portion of the road connects a subdivision or platted land with a public highway. For the foregoing reasons, we hold that at least the westernmost portion of the disputed road within Alpine Acres is not a highway within the meaning of section 2 — 202 of the Code.

We further conclude that section 6 — 325 of the Code affords no basis for holding that the public has a right to use the road at issue. That section merely prescribes procedures for inclusion in public road systems of roads which have been dedicated to public use. It says nothing about what factors confer upon the public the right to use a particular road.

In addition to relying on provisions of the Code, defendants contend that the public has a right to use the disputed road as a result of it being dedicated to public use. This argument is in part premised on the Plat Act, which provides that when land is subdivided into two or more plots, any one of which is less than five acres, the owner must have the land platted. The plat:

“[MJust particularly describe and set forth all public streets, alleys, ways for public service facilities, ways for utility services and community antenna television systems, parks, playgrounds, school grounds or other public grounds, and all the tracts, parcels, lots or blocks, and [number] all such lots, blocks or parcels by progressive numbers, giving their precise dimensions.” (Ill. Rev. Stat. 1989, ch. 109, par. 1(a).)

Upon the acknowledgment and recording of a plat, it:

“[S]haII be held in all courts to be a conveyance in fee simple of such portions of the premises platted as are marked or noted on such plat as donated or granted to the public, or any person, religious society, corporation or body politic, and as a general warranty against the donor, his or her heirs and representatives, to such donee or grantee, for their use or for the use and purposes therein named or intended, and for no other use or purpose; and the premises intended for any street, alley, way, common or other public use in any city, village or town, or addition thereto, shall be held in the corporate name thereof in trust to and for the uses and purposes set forth or intended.” (Ill. Rev. Stat. 1989, ch. 109, par. 3.)

Defendants assert that the road through Alpine Acres was dedicated to public use by means of (1) its being marked on the subdivision plat, (2) the language of the plat, and (3) the acceptance of the plat by the county. Defendants further argue that use of the road by them and others constituted public acceptance of the dedication. Defendants maintain that the actions of the Association and Alpine Acres residents years after the road was platted and made available for public use cannot diminish the rights of the public to use the road, and that the Association acquired no rights in the road which are incompatible with the right of the public to use it.

In its argument on appeal, the Association first questions whether there can be a statutory dedication to public use of a road located outside of a municipality. The Association asserts that assuming arguendo this can be done, the Alpine Acres plat does not contain sufficient indicia of a donative intent to effect a dedication to public use of the disputed road, and it is questionable whether the plat was properly accepted by the Macoupin County board. The Association also argues that based on the evidence presented at trial, the circuit court could properly have concluded that there was insufficient proof of do-native intent to establish a common law dedication to public use of the disputed road.

In their reply argument, defendants acknowledge that a county is incapable of accepting a fee dedication of a road for public use and, thus, the Association owns the fee of the road which runs through Alpine Acres. They maintain that there has nevertheless been compliance with all of the prerequisites for granting the public a right to use the disputed road. In support of this argument, defendants assert that the Plat Act does not on its face require the use of words of dedication in order for a dedication to public use to be effective, and that there is nothing on the Alpine Acres plat which is inconsistent with an intent to dedicate the road within the subdivision to public use. Defendants further argue that section 6 — 325 of the Code does not require that all rural public roads be maintained at public expense. Also, defendants note that the road’s right-of-way is not included in the individual lots in Alpine Acres. Finally, defendants assert that there is clear evidence that the Macoupin County board accepted the Alpine Acres plat.

In order to effect a statutory dedication, the provisions of the Plat Act must be fully complied with, and the plat must clearly indicate a donation to the public of the real estate in question. (Sundstrom v. Village of Oak Park (1940), 374 Ill. 632, 30 N.E.2d 58; Reiman v. Kale (1980), 83 Ill. App. 3d 773, 403 N.E.2d 1275.) Under the Plat Act, a court is limited to an examination of the plat and the marks and notations appearing on it in determining whether there was a valid statutory dedication of land to a public use. Wooded Shores Property Owners Association, Inc. v. Mathews (1976), 37 Ill. App. 3d 334, 345 N.E.2d 186.

The plat of the Alpine Acres subdivision indicates that a strip of land at the south end of Alpine Acres is dedicated to road purposes, and this strip is clearly marked “Dedicated to Roadway.” By contrast, one segment of the disputed road within the subdivision is marked “Access Road,” while another segment of this road is simply marked “Roadway.” The use of the word “dedicated” with respect to the road on the south side of the subdivision, and the failure to use this word in the description of the road within the subdivision, indicates an intent not to donate or dedicate the latter road to public use. The Alpine Acres plat does not establish that there was a statutory dedication of the road within the subdivision to public use.

If there has been no statutory dedication of real estate to a public use, the facts nevertheless may be sufficient to establish a common law dedication. Two factors must be present to support a finding of a common law dedication: (1) an owner of real estate must intend to donate it for a public use, and (2) the public must accept the dedication. The most important requirement is donative intent, which may be manifested by a formal dedication or by acts of the donor from which the intent may be so fairly presumed as to equitably estop the donor from denying a donative intent. Proof of acts relied upon to establish a common law dedication must be clear, unequivocal, and unambiguous. (People ex rel. Markgraff v. Rosenfield (1943), 383 Ill. 468, 50 N.E.2d 479.) The evidence presented at trial supports the conclusion that there has been no common law dedication to public use of the road within Alpine Acres.

Alan Lobbig, who was responsible for the creation of Alpine Acres and recorded the subdivision plat, stated that when the subdivision was laid out, there was an existing public road at its south end, which was still there at the time of trial. He stated that the subdivision plat reflected this public road and made a distinction between it and the internal road. Lobbig also stated he did not tell any of the purchasers of lots in the subdivision that the internal road would be a public road. Lobbig further testified that probably 10 years before the trial of the cause, he informed defendant Leonard that the disputed road was a private road and that perhaps six years prior to the trial he first placed obstacles at the end of the road, and he subsequently replaced them several times after Leonard removed them.

On cross-examination, Lobbig stated that when he caused the disputed road to be laid out, he intended that it be available for use by all those who had homes in Alpine Acres, as well as by persons doing business with and making deliveries to subdivision residents, and by persons who were interested in purchasing property in the subdivision.

Lobbig’s testimony unequivocally establishes that he intended the disputed road to be a private road available only for the use of Alpine Acres residents and their invitees. In view of the strong evidence of lack of intent to effect a common law dedication, the evidence of frequent use of the road as a means of ingress to and egress from defendants’ adjacent property is insufficient to establish that a common law dedication occurred. The Markgraff court stated the following with regard to the effect of use of roads by those unauthorized to do so:

“Acquiescence with the knowledge of use by the public, and without objection, is not conclusive evidence of intent to dedicate, for such evidence may be rebutted. (Kyle v. Town of Logan, 87 Ill. 64.) Acquiescence in a permissive use can never be said to show an intent to dedicate land to public use. (Leonard v. Pearce, 348 Ill. 518[, 181 N.E. 399].)” Markgraff, 383 Ill. at 474, 50 N.E .2d at 482.

Nor is the removal from the tax rolls of the land containing the road within Alpine Acres determinative with regard to whether it was dedicated to public use. The removal of real estate from the tax rolls is an evidentiary fact which may be considered in determining whether a dedication to public use has occurred, but it may not be conclusive as to this matter. (Village of Benld v. Dorsey (1924), 311 Ill. 192, 142 N.E. 563.) Here, the evidentiary force of the removal of the disputed road’s right-of-way from the tax rolls is outweighed by Lobbig’s clear testimony which establishes he did not intend to dedicate this land to public use.

None of the cases relied upon by defendants support their position that the road here at issue has been dedicated to public use. In Village of Benld, there was, unlike in the present case, a clear manifestation of intent to donate a parcel of land for use by the public at large, rather than for use only by adjoining landowners and their invitees. The court in Road District No. 4 v. Frailey (1924), 313 Ill. 568, 145 N.E. 195, did hold that designation of a road as a private road does not affect its character, if in fact it is a public road or highway. However, the evidence in this case strongly supports the conclusion that the road within Alpine Acres is, in fact, a private road rather than a public road. Finally, in McCue v, Berge (1944), 385 Ill. 292, 52 N.E.2d 789, a deed specifically reserved the land containing the road in issue either “ ‘for the purposes of a public street’ ” or “ ‘for a public street.’ ” (McCue, 385 Ill. at 294-95, 52 N.E.2d at 791.) In the present case, there is no document containing similar language.

The westernmost portion of the disputed road through the Alpine Acres subdivision is not a highway within the meaning of the Code, and the evidence establishes that the road has not been dedicated to public use by means of either a statutory or a common law dedication. For these reasons, we affirm the circuit court’s decision.

Affirmed.

SPITZ and KNECHT, JJ., concur.


author: JUDGE HAASE

text:
    BOYD REAL ESTATE, INC., et al., Plaintiffs-Appellants, v. SHISSLER SEED COMPANY, INC., et al., Defendants-Appellees.
    Third District
    Nos. 3—90—0432, 3—90—0433 cons.
    Opinion filed May 10, 1991.
    William K. Richardson and Terry Sharp, both of Law Office of Terry Sharp, P.C., of Mt. Vernon, for appellants.
    Sutkowski & Washkuhn Associates, of Peoria (Gregory S. Bell, of counsel), for appellee Shissler Seed Company.

      John C. Mulgrew, Jr., of Heyl, Royster, Voelker & Allen, of Peoria, for other appellees.
   JUDGE HAASE

delivered the opinion of the court:

The plaintiffs, Boyd Real Estate, Inc. (Boyd), and Allen and Cupi Real Estate, Inc. (Allen), filed suit against the defendants, Shissler Seed Co., Inc., Robert L. Potts, and Whitney and Potts, Ltd., to recover a real estate brokerage commission. The trial court granted the defendants’ motions to dismiss Boyd and Allen’s complaints. Boyd and Allen appeal.

The record reveals that on July 18, 1988, Shissler entered into a written uniform listing contract with Boyd which authorized Boyd to act as a real estate broker for Shissler. The exclusive six-month listing agreement gave Boyd the right to sell Shissler’s 3,170-acre farm for $2,775,000. The agreement provided for a 5% commission if the deal was co-brokered. It further provided that the commission was to become due upon Boyd procuring a ready, willing and able buyer at the terms stated in the listing agreement or at any other price and terms agreed upon.

Thereafter, Boyd and Allen entered into a co-brokerage agreement regarding the property in question. They then located a prospective purchaser, Kambray Corp. (Kambray). On July 31, 1988, Kambray submitted a purchase agreement to Shissler.

Kambray representative James Hoffman stated in his deposition that after he and the representatives of Shissler had engaged in extensive negotiations regarding the terms of the proposed purchase agreement, Shissler orally agreed to a $3,050,000 purchase price. Shissler, however, wanted to discuss the legal language with its attorney before signing the document. Hoffman further stated that he had increased his original offer of $3 million by $50,000 because Shissler requested additional compensation for crops growing on the property.

It is undisputed that Shissler did not sign the proposed purchase agreement. According to Shissler representative Gene Shissler, he told Kambray at least twice that there would be no deal until he had a chance to discuss it with his attorney.

Thereafter, Shissler consulted its attorney, Robert L. Potts, who advised Shissler not to consummate the deal because the proposed agreement did not adequately reflect the value of the growing crops. Based on that advice, Shissler decided not to execute the purchase agreement.

The listing agreement and the proposed purchase agreement differed in several significant aspects. The purchase agreement contained additional terms which required Shissler to sell certain personal property, provide a title commitment, sell blueprints and other specifications regarding the personal and real property, pay all the sales tax due, and provide standard contracts for the farm crops. The purchase agreement provided for an October 5, 1988, possession date, while the listing agreement provided for a March 1, 1988, possession date. The purchase agreement further provided that Kambray’s obligations were contingent upon a document review, property inspection, and the obtaining of financing. It also provided that Kambray could terminate the deal if the property was damaged by fire or other casualty prior to closing.

Boyd and Allen filed two separate complaints in an attempt to recover a commission. Their first complaint was brought against Shissler. The first count of that complaint alleged that Boyd and Allen procured a ready, willing, and able buyer as contemplated by the listing agreement. The second count alleged that Boyd and Allen earned their commission when Shissler and Kambray negotiated and agreed upon terms for the sale of the property. The second complaint was brought against attorney Potts. Count I of the second complaint alleged that Potts tortiously interfered with a contractual relationship. Count II alleged that Potts tortiously interfered with a prospective economic advantage.

The trial court granted the defendants’ motions to dismiss Boyd and Allen’s second amended complaint against Shissler. The court also denied Boyd and Allen’s motion to reconsider. In so doing, the court found that the outcome of the first count of the complaint against Shissler was controlled by Sharky v. Snow (1973), 13 Ill. App. 3d 448, 300 N.E.2d 279, which provides that a broker, to state a cause of action based on a listing agreement, must allege that he procured a ready, willing, and able buyer under the terms of the listing agreement and no others. The court further found that the second count failed to state a cause of action, citing D.M. Kaufman Associates, Inc. v. Lake County Trust Co. (1987), 157 Ill. App. 3d 926, 510 N.E.2d 919.

On appeal, Boyd and Allen first argue that the trial court erred in granting Shissler’s motion to dismiss. They contend that they stated a cause of action when they alleged that they procured a prospective buyer, who proposed a written purchase contract and entered into negotiations vis-a-vis the seller regarding the terms of that contract, and the seller orally agreed to the terms.

In Sharkey v. Snow (1973), 13 Ill. App. 3d 448, 300 N.E.2d 279, the court held that a broker failed to earn a commission where he produced a buyer who proposed a purchase agreement with terms that differed from the listing agreement. The differences included additional terms in the listing agreement for the sale of personal property and a requirement that the seller purchase title insurance.

In the instant case, the terms of the listing agreement and the purchase agreement differed in ways similar to the differences in Sharkey. Moreover, we note that Boyd and Allen failed to allege that they procured a purchaser under the terms of the listing agreement. Appellants, in oral argument, requested that this court overrule the holding in Sharkey v. Snow. We decline to do so. No adequate reason has been put forth to overrule the long-standing law of Illinois on this subject. Accordingly, the trial court properly dismissed the first count of the complaint against Shissler.

We next turn to the trial court’s dismissal of the second count of the complaint against Shissler. Boyd and Allen contend that even though Kambray’s terms differed from the listing agreement, they nevertheless stated a cause of action by alleging that Shissler orally agreed to the terms of Kambray’s proposed purchase agreement.

In response, Shissler contends that where the terms of the listing agreement and the proposed contract differ, the buyer and seller must enter into an enforceable contract for the broker to earn a commission. (Wilson v. Mason (1895), 158 Ill. 304.) It argues that since it declined to sign the document and enter into an enforceable contract, the broker did not earn a commission.

We note that Illinois courts have, held that it is not essential that an executed written agreement actually be entered into for a broker to earn a commission, since the seller becomes bound at the moment his terms have been met. (Wolfenberger v. Madison (1976), 43 Ill. App. 3d 813, 357 N.E.2d 656; Garret v. Babb (1975), 24 Ill. App. 3d 941, 322 N.E.2d 217.) In Wolfenberger, the court stated that the rule announced in Wilson, requiring an enforceable contract, was dicta. The Wolfenberger court further stated that the Wilson rule was inapplicable when the seller was at fault.

We further note that in the cases cited by the appellant, holding that enforceable contracts were not required, the brokers procured ready, willing, and able purchasers under the terms of the listing agreements. In both Wolfenberger and Garrett the sellers’ terms were clearly stated in the listing agreements (in Wolfenberger a written listing agreement and in Garrett an oral listing agreement) and the purchasers were ready, willing, and able to meet those terms, yet the sellers refused to execute purchase contracts. Thus, the brokers earned their commissions in those two cases under the rule in Sharkey regardless of whether purchase contracts were executed. In the present case, however, the terms orally agreed upon by Shissler and Kambray were not the same as the terms specified in the listing agreement. Accordingly, Wolfenberger and Garrett are inapposite.

In D.M. Kaufman Associates, Inc. v. Lake County Trust Co. (1987), 157 Ill. App. 3d 926, 510 N.E.2d 919, relied upon by the trial court, the seller sent a letter of intent to the buyer’s attorney. The letter of intent included the seller’s terms and stated that a formal contract was to be prepared by the purchaser. It further provided that if-the seller rejected the agreement, the letter of intent was to have no legal effect. Thereafter,, the purchaser “accepted” the letter of intent, drafted a contract, and sent the contract to the seller. The seller rejected the agreement because two additional terms were unacceptable. The Kaufman court noted that if the parties under the facts of the case sufficiently defined their dealings as to amount to an enforceable contract, the broker would be entitled to a commission. The court reversed and remanded the cause for further proceedings to determine whether the terms the seller objected to were essential or incidental. If they were essential, then there was not an enforceable contract.

Under the circumstances of the present case, we find that Sharkey, Wilson, and Kaufman are controlling and require that the purchaser and seller must have actually entered into an enforceable contract for the broker to earn a commission. In Kaufman, the seller submitted a signed writing with his terms to the purchaser. Here, we do not have a signed agreement purporting to bind the seller. Boyd and Allen failed to cite any case law holding that a broker is entitled to a commission where he procured a prospective purchaser under terms different than the listing agreement and thereafter the seller and purchaser orally agreed to terms, but the seller refused to enter into an enforceable contract. Since it is undisputed that the seller and purchaser did not enter into an enforceable contract, the trial court properly granted Shissler’s motion to dismiss.

Boyd and Allen next argue that the trial court improperly dismissed their complaint against attorney Potts because they failed to state a cause of action.

We disagree. Attorney Potts’ communication to Shissler advising it not to execute the contract was privileged. Public policy requires that an attorney, when acting in his professional capacity, be free to advise his client without fear of personal liability to third persons. (Schott v. Glover (1982), 109 Ill. App. 3d 230, 440 N.E.2d 376.) An unqualified privilege can be overcome by showing actual malice to harm a third party. (Schott v. Glover (1982), 109 Ill. App. 3d 230, 440 N.E.2d 376.) Here, however, the plaintiffs did not allege actual malice and nothing in the pleadings or depositions indicates actual malice. Accordingly, the trial court properly dismissed the complaint against Potts for failure to state a cause of action.

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

Affirmed.

BARRY and STOUDER, JJ., concur.


author: PRESIDING JUSTICE REINHARD

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CURTIS ISHMON, Defendant-Appellant.
    Second District
    No. 2—90—0407
    Opinion filed May 15, 1991.
    Rehearing denied June 13, 1991.

      G. Joseph Weller and Patrick M. Carmody, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Charles R. Hartman, State’s Attorney, of Freeport (William L. Browers and Lawrence M. Bauer, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE REINHARD

delivered the opinion of the court:

Pursuant to a negotiated plea agreement, defendant, Curtis Ishmon, pleaded guilty to two informations charging him with the unlawful delivery of a controlled substance pursuant to section 401(c) of the Illinois Controlled, Substances Act (Ill. Rev. Stat. 1989, ch. 56½, par. 1401(c)). Defendant was sentenced to concurrent terms of three years’ imprisonment and assessed a $50 “street value” fine (Ill. Rev. Stat. 1989, ch. 38, par. 1005—9—1.1) for each offense.

Defendant appeals from his sentence only and raises two issues: (1) whether the trial court improperly considered an. element inherent in the offense as an aggravating factor in imposing sentence; and (2) whether the trial court should have considered defendant’s admission of involvement in other criminal activities as a mitigating rather than an aggravating factor in sentencing.

On November 21, 1989, defendant was charged in two informations with the offense of unlawful delivery of a controlled substance under section 401(c) of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1989, ch. 56½, par. 1401(d)). At a hearing held February 27, 1990, the parties presented a limited plea agreement to the trial court. In return for defendant’s plea of guilty, the State agreed to recommend concurrent sentences of three years’ imprisonment and a “street value” fine of $50 for each offense. Defendant retained the opportunity to argue for a lesser sentence. After advising defendant of the rights he was waiving by pleading guilty, the trial court received a factual basis for the pleas. Defendant then pleaded guilty to the charges, and the trial court accepted his pleas.

At a sentencing hearing conducted March 23, 1990, defendant argued for a sentence of probation. The trial court, however, accepted the State’s recommendation and sentenced defendant to concurrent terms of three years’ imprisonment and a $50 fine for each offense.

Defendant filed a timely motion to withdraw his guilty plea and vacate the judgments pursuant to Supreme Court Rule 604(d) (134 Ill. 2d R. 604(d)) raising therein the single contention that his plea was “defective in that it was not intelligently and voluntarily given by the Defendant in that Defendant did not understand the consequences of his plea.” On April 19, 1990, a hearing was held during which defendant testified that his defense counsel had told him he would probably receive probation if he pleaded guilty. After hearing arguments by counsel, the trial court noted that it had correctly informed defendant that he could be sentenced to a term of imprisonment and that defendant understood this possibility. The court denied defendant’s motion.

Before addressing the issues raised by defendant, we first inquire whether we have jurisdiction over this appeal. Although no party has raised this issue, a reviewing court has a duty to consider its jurisdiction and to dismiss the appeal if jurisdiction is wanting. (Ferguson v. Riverside Medical Center (1985), 111 Ill. 2d 436, 440, 490 N.E.2d 1252.) Our inquiry here is prompted by the fact that, although defendant is appealing the propriety of the sentence imposed upon his plea of guilty, he did not file a motion in the trial court seeking reconsideration of the sentence.

In People v. Wallace (1991), 143 Ill. 2d 59, the Illinois Supreme Court held that the filing of a motion to reconsider sentence is “a prerequisite” to an appeal from a sentence imposed upon a plea of guilty. Although Supreme Court Rule 604(d) does not, by its own terms, apply to sentencing issues, Wallace held that the supreme court’s prior

opinion in People v. Wilk (1988), 124 Ill. 2d 93, 529 N.E.2d 218, “effectively broadened” Rule 604(d). (Wallace, 143 Ill. 2d at 61.) Wilk established that, for a defendant complaining only about his sentence, it is sufficient to file a motion for reconsideration, rather than a Rule 604(d) motion to withdraw the guilty plea, in order to appeal from the sentence. (Wilk, 124 Ill. 2d at 109-10, 529 N.E.2d at 224.) Wallace clarified Wilk in this regard by holding that a motion to reconsider sentence is not only sufficient, but “a prerequisite to an appeal from that sentence.” Wallace, 143 Ill. 2d at 60.

It is important to note that the defendant’s failure to file a motion to reconsider his sentence in Wallace resulted in dismissal of his appeal, not just a waiver of sentencing issues. (Wallace, 143 Ill. 2d at 60-61.) Dismissal is the proper disposition of the appeal where jurisdiction is lacking. (Ferguson, 111 Ill. 2d at 436, 490 N.E.2d at 1253.) Therefore, we conclude that the motion to reconsider a sentence imposed on a guilty plea required by Wallace is a jurisdictional prerequisite to an appeal from that sentence.

What remains to be determined here is whether defendant’s Rule 604(d) motion to withdraw his guilty plea, which did not raise any sentencing issues, satisfies Wallace’s jurisdictional requirement of a motion to reconsider the sentence. We believe it does not.

We are mindful of the supreme court’s admonition in Wilk that, “the rules adopted by this court concerning criminal defendants and guilty pleas are in fact rules of procedure and not suggestions.” (Wilk, 124 Ill. 2d at 103, 529 N.E.2d at 221.) While the supreme court has held that the requirement of a motion to reconsider a sentence imposed on a guilty plea is an effective broadening of Rule 604(d) (Wallace, 143 Ill. 2d at 61), it is clear that the text of Supreme Court Rule 604(d) in its current form bears no relation to sentencing issues. The purpose of a motion to reconsider a sentence is to allow the trial court an opportunity to review the appropriateness of the sentence imposed and to correct any errors. (Wallace, 143 Ill. 2d at 61.) The filing of a Rule 604(d) motion to withdraw a guilty plea which does not also raise sentencing issues falls short of meeting this purpose.

Additionally, our supreme court’s decision in People v. Stacey (1977), 68 Ill. 2d 261, 369 N.E.2d 1254, held that, where the defendant sought review of his sentence only, the filing of a motion to withdraw the plea of guilty and vacate the judgment was a condition precedent to an appeal. (Stacey, 68 Ill. 2d at 265-66, 369 N.E.2d at 1256-57.) In Wilk, however, the supreme court specifically disavowed this holding, stating that, with regard to defendants appealing only the sentence imposed and not their guilty pleas, it is “not necessary *** to file a Rule 604(d) motion.” (Wilk, 124 Ill. 2d at 110, 529 N.E.2d at 224.) This bolsters our conclusion that a Rule 604(d) motion is separate and distinct from the motion to reconsider sentence required by Wallace.

We conclude, therefore, that defendant’s filing of a Rule 604(d) motion to withdraw his guilty plea, which did not raise any sentencing issues, cannot act to meet the jurisdictional requirement of a motion to reconsider sentence. While we believe the dimensions, requirements and nature of the motion required by Wallace are in need of clarification, this task is more appropriately accomplished through the supreme court’s rule-making authority.

Because we have no jurisdiction to hear the instant appeal, it must be dismissed.

Appeal dismissed.

INGLIS and UNVERZAGT, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ADOLPH ERBY, JR., Defendant-Appellant.
    Second District
    No. 2—89—0694
    Opinion filed May 10, 1991.

      G. Joseph Weller and Sherry R. Engelstad, both of State Appellate Defender’s Office, of Elgin, for appellant.
    James E. Ryan, State’s Attorney, of Wheaton, and Michael L. Shevick, of Chicago (William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE REINHARD

delivered the opinion of the court:

Following a bench trial conducted in the circuit court of Du Page County, defendant, Adolph Erby, Jr., was convicted of the offense of forgery based on his illegal use of a credit card (Ill. Rev. Stat. 1989, ch. 38, par. 17—3(a)(1)), and an extended-term sentence of eight years’ imprisonment was imposed.

On appeal, defendant contends that the circuit court improperly denied his motion to suppress evidence for. two reasons: (1) the investigative stop of defendant was conducted by police without a reasonable and articulable suspicion that defendant had engaged in criminal activity; and (2) there was not probable cause to arrest defendant.

The original charge against defendant was filed on February 9, 1989, and alleged that, on February 8, 1989, defendant used a credit card belonging to Dora J. Barnes with the purpose and intent to defraud. Defendant filed a motion to suppress the evidence gathered as a result of the allegedly illegal stop and arrest of defendant. A hearing on the motion was conducted on June 2,1989.

The only witness testifying at the hearing was Officer Bradley Bloom, a seven-year veteran and a sergeant of the Hinsdale police department. Officer Bloom testified that, at approximately 10:16 p.m. on February 8, 1989, he was travelling in his squad car in the vicinity of Ogden Avenue and York Road when he observed a Buick automobile in “beater condition” in the parking lot of the Shell Mini-Mart located at the intersection of York and Ogden. The Buick was parked in the northeast portion of the lot next to the pay telephone and approximately 25 feet east of the station’s gas pumps. Officer Bloom did not see anyone inside the Buick until he pulled his squad car into the Shell Mini-Mart lot. Officer Bloom then saw a person kneeling on the front seat of the Buick placing three cartons of cigarettes into the backseat. The person in the car,- whom Officer Bloom identified as defendant, was a black man wearing a red baseball cap. Officer Bloom felt the situation “looked like something out of the ordinary” and determined that he would investigate.

Officer Bloom parked his squad car immediately adjacent to the Buick but did not park in front of the Buick or otherwise block its path. Prior to getting out of his car, Officer Bloom turned on his alley light to illuminate the interior of the Buick. As Officer Bloom approached the Buick, defendant slid from the driver’s side to the passenger side of the car’s front seat and, without being asked, rolled down the window. Officer Bloom observed a white plastic bag in the backseat which appeared to be stuffed with cartons of cigarettes.

Officer Bloom asked defendant where he obtained the cigarettes, and defendant replied, “from a friend in Aurora.” When Officer Bloom asked the name of this friend, defendant said he could not remember it, nor could defendant remember where in Aurora his friend lived. Defendant could not remember his friend’s telephone number but stated that he had the number written down at home. Officer Bloom described defendant’s response when defendant was asked where in Aurora he had gotten the cigarettes:

“He just said, ‘In Aurora.’
I said, ‘Well, exactly where?’
He just said, ‘In Aurora.’ ”

Defendant told Officer Bloom that the cigarettes were for a pool hall he owned in Chicago. Officer Bloom then asked defendant if he could examine the cigarettes, to which defendant replied, “[s]ure.” Defendant then got out of the passenger side door of the two-door Buick, and Officer Bloom pushed the passenger seat forward and removed the bag of cigarette cartons from the backseat. After examining the bag of cigarette cartons while standing outside the car, Officer Bloom saw that there were approximately 24 cartons in the bag displaying tax stamps from a variety of locations, including some from Cook County. On the top of the bag were one carton of Pall Mall cigarettes and two cartons of Kool cigarettes. Officer Bloom was able to read a tax stamp on one of the cartons which read, “ACA Management, Store No. 17, 149 East Ogden Avenue, Hinsdale.” Officer Bloom recognized the address as that of an Amoco station directly across the street from the Shell Mini-Mart. Defendant stated that he had not been to the Amoco station.

At this point, Officer Bloom returned to his car and summoned another officer to the scene. Defendant returned to his car and remained there. Officer Bloom did not tell defendant to stay, and defendant did not ask to leave. Approximately one minute later, the other officer arrived. Officer Bloom directed the officer to proceed to the Amoco station across the street to see whether anyone had just purchased three cartons of cigarettes. Less than five minutes later, the officer radioed back to Officer Bloom that, according to the clerk at the Amoco station, a black man wearing a red baseball cap had just purchased one carton of Pall Mall cigarettes and two cartons of Kool cigarettes using an Amoco credit card issued to Dora A. Barnes. The man signed the receipt, “D. Barnes.”

Officer Bloom then placed defendant under arrest for the following reasons:

“Number one, that Mr. Erby had told me he had never been in the Amoco Station; that the cigarettes had had a stamp on the marked ‘ACA Amoco’ or ‘ACA Management, 149 East Ogden Avenue, Hinsdale,’ and the fact that the credit card was used with the name of Dora A. Barns [sic],
Mr. Erby had already identified himself *** with the name Adolph Erby, and at that point he was still in possession of the cigarettes.”

The trial court found that Officer Bloom had probable cause to arrest defendant and denied the motion to suppress evidence.

The case proceeded to a bench trial. The parties stipulated to Officer Bloom’s testimony at the suppression hearing as well as the testimony of the officer who went to the Amoco station and Dora Barnes. Defendant offered no evidence. Defendant was found guilty.

Defendant’s first contention on appeal is that Officer Bloom effected an investigatory stop of defendant without a reasonable and articulable basis to believe he may have committed a crime. We note that, in reviewing a ruling on a motion to quash arrest and suppress evidence, a reviewing court will not reverse the trial court’s denial of the motion unless it was clearly erroneous. People v. Henderson (1990), 142 Ill. 2d 258, 293.

Pursuant to Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868, a police officer may make a valid investigatory stop, absent probable cause for an arrest, provided that the officer’s decision is based on specific, articulable facts which warrant the investigative intrusion. (Terry, 392 U.S. at 21, 20 L. Ed. 2d at 906, 88 S. Ct. at 1879-80.) Before reaching the reasonableness of the officer’s investigative intrusion, however, we must first determine the point at which a seizure occurred. It is only at the point a seizure occurs that the fourth amendment is implicated (People v. Clark (1989), 185 Ill. App. 3d 231, 235-36, 541 N.E.2d 199) and when the police officer is required to have a particularized and objective basis for suspecting the person of criminal activity (Michigan v. Chesternut (1988), 486 U.S. 567, 576, 100 L. Ed. 2d 565, 573, 108 S. Ct. 1975, 1981). The objective test to determine whether there is a seizure is that an individual is seized only if, in view of all the circumstances surrounding the incident, a reasonable person would believe he was not free to leave. (Chesternut, 486 U.S. at 573-74, 100 L. Ed. 2d at 572, 108 S. Ct. at 1979.) This test states a necessary, but not a sufficient, condition for seizure. California v. Hodari D. (1991), 499 U.S___, 113 L. Ed. 2d 690, 111 S. Ct. 1547.

Defendant contends, citing People v. Hunt (1989), 188 Ill. App. 3d 359, 544 N.E.2d 118, that, in the instant case, a seizure took place once Officer Bloom shined his alley light into defendant’s vehicle and approached the vehicle for purposes of investigation. We disagree with this argument and the decision in Hunt. Merely approaching a parked vehicle and asking questions of the occupants does not constitute a seizure, and it is also permissible to request that the occupant roll down the window. (Clark, 185 Ill. App. 3d at 237, 541 N.E.2d at 203; see also People v. Long (1983), 99 Ill. 2d 219, 230-31, 457 N.E.2d 1252.) Additionally, shining a light into a vehicle, especially a parked vehicle as is the case here, does not constitute a stop absent coercion or a threat of coercion by police officers. (See People v. Holdman (1978), 73 Ill. 2d 213, 220-21, 383 N.E.2d 155.) We note that this is not a situation where, for example, the officer utilized his flashing police lights as a show of authority. (See 3 W. LaFave, Search & Seizure §9.2(h), at 417 (2d ed. 1987).) Under the particular circumstances here, we conclude that the shining of the alley light onto defendant’s vehicle was not coercive and did not constitute a seizure.

We similarly do not believe that a seizure occurred at the point Officer Bloom asked defendant if he could examine the bag of cigarette cartons resting in the backseat of defendant’s car. In the present context, a request to search, standing alone, is not conclusive on the question of whether a seizure has occurred. (3 W. LaFave, Search & Seizure §9.2(h), at 413 (2d ed. 1987 & Supp. 1991).) A person voluntarily cooperating with the police is not seized for fourth amendment purposes. (See People v. Mata (1988), 178 Ill. App. 3d 155, 160, 533 N.E.2d 370.) The objective test focuses on the coercive effect of police conduct as a whole, not on particular details of that conduct in isolation. (Chesternut, 486 U.S. at 573-74, 100 L. Ed. 2d at 572, 108 S. Ct. at 1979-80.) Here, we do not find that Officer Bloom’s conduct rose to the level of a seizure merely because he asked, and received permission, to look at defendant’s bag of cigarette cartons. A reasonable person would not necessarily feel that he was not free to leave at this point.

The investigation became more intrusive when Officer Bloom summoned another police officer to the scene to assist in further investigation and when Bloom remained at the Shell Mini-Mart with defendant. Although Officer Bloom never told defendant he could not leave, a reasonable person might well have felt that he was not free to leave at that point in time. However, even if we assume, arguendo, that a seizure occurred at this point, we believe that Officer Bloom was possessed of sufficiently specific and articulable facts justifying the brief detention of defendant at that time.

In the instant case, it was defendant’s own responses to Officer Bloom’s questioning which provided specific and articulable facts supporting a subsequent brief detention. Defendant had in his possession 24 cartons of cigarettes, an amount greater than would normally be carried for personal use. Defendant explained that he obtained the cigarettes from a friend in Aurora, but the cartons, as evidenced by tax stamps from various locations, appeared to be of diverse origin. Moreover, the fact that defendant was initially observed placing three cartons into the bag suggests that his statement that the cigarettes came from Aurora was untrue. Defendant denied going to the Amoco station across the street, yet one of the tax stamps bore the address of the station. Finally, defendant’s inability to recall the name, address, or telephone number of the person in Aurora from whom he purportedly obtained the cigarettes created more doubt as to the veracity of his statements.

If a suspect’s explanation of suspicious activity is known to be false in some respects, there is reason to continue the detention to investigate the explanation. (Mata, 178 Ill. App. 3d at 160, 533 N.E.2d at 374; 3 W. LaFave, Search & Seizure §9.2(f), at 382 (2d ed. 1987).) Here, we believe that Officer Bloom properly detained defendant for the few minutes necessary for another officer to cross the street to the Amoco station and investigate defendant’s explanation of the suspicious activity described above.

Defendant’s next contention is that Officer Bloom did not have probable cause to arrest him. Defendant notes that, at the time of the arrest, Officer Bloom knew only that a man matching defendant’s description had been in the Amoco station and had purchased cigarettes with a credit card belonging to Dora A. Barnes. Placing great emphasis on the fact that Officer Bloom did not know that the credit card was stolen or that Barnes had not given defendant permission to use the card, defendant contends that Officer Bloom’s arrest was “nothing more than a hunch based on ambiguous conduct and inconsistent answers to interrogation.”

Probable cause to arrest exists where the police have knowledge of facts which would lead a reasonable person to believe a crime has been committed by the person arrested. (People v. Foster (1987), 119 Ill. 2d 69, 83, 518 N.E.2d 82.) Although a mere suspicion that the person has committed the offense is an insufficient basis for arrest, evidence sufficient to convict is not required. (Foster, 119 Ill. 2d at 83, 518 N.E.2d at 87.) A trial court’s finding of probable cause to arrest will not be set aside on review unless it is manifestly erroneous. Foster, 119 Ill. 2d at 83, 518 N.E.2d at 87.

Here, Officer Bloom knew that a black man wearing a red baseball cap had just purchased one carton of Pall Mall cigarettes and two cartons of Kool cigarettes at the Amoco station across the street from where defendant’s car was parked. Defendant, a black man who was wearing a red baseball cap, was seen placing three cartons of cigarettes, later found to be one carton of Pall Malls and two cartons of Kools, into a bag in the backseat of his car, and one of the cartons bore a tax stamp with the address of the Amoco station. Thus, Officer Bloom was aware of facts strongly indicating that defendant was the man who purchased the cigarettes using the credit card issued to Dora A. Barnes.

Although Officer Bloom did not know at that time that Barnes’ credit card was stolen or that defendant used it without her permission, defendant’s conduct was inconsistent with an innocent, authorized use of the card. An arrestee’s answers to police questioning may properly be taken into account in examining probable cause (United States v. Ortiz (1975), 422 U.S. 891, 897, 45 L. Ed. 2d 623, 629, 95 S. Ct. 2585, 2589), and responses which are false, implausible or conflicting may well constitute probable cause when considered together with prior suspicions (2 W. LaFave, Search & Seizure §3.6(f), at 65-66 (2d ed. 1987); see also Mata, 178 Ill. App. 3d at 162, 533 N.E.2d at 375-76). Although it was apparent that defendant had purchased the cigarettes at the Amoco station, he denied ever being at the station. By signing the credit card with the name, “D. Barnes,” rather than with his own name, defendant gave Officer Bloom further reason to believe that his use of the card was unauthorized.

Defendant correctly notes that the probable cause test is a compromise for accommodating the often opposing interests of privacy and law enforcement and that “there is good reason for striking the compromise somewhat on the side of privacy where it is uncertain whether any crime has occurred.” (People v. Reynolds (1983), 94 Ill. 2d 160, 166, 445 N.E.2d 766.) In striking this balance, however, courts are also sensitive to the fact that policemen must often make the decision to arrest under ambiguous circumstances. (People v. Cabrera (1987), 116 Ill. 2d 474, 485, 508 N.E.2d 708.) It is not always essential that the police officer have actual knowledge that a crime has been committed so long as the facts give rise to a reasonable belief that a crime has been committed. (Mata, 178 Ill. App. 3d at 161-62, 533 N.E.2d at 375.) We believe that the circumstances here were sufficient to lead a reasonable person to believe that a crime had been committed by defendant.

We conclude that the trial court’s findings that the investigatory detention and subsequent arrest of defendant were permissible are not manifestly erroneous. Therefore, we reject defendant’s contention that the evidence produced from the detention and arrest should have been suppressed.

The judgment of the circuit court is affirmed.

Affirmed.

INGLIS and UNVERZAGT, JJ., concur.