text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHARLES HARRIS, Defendant-Appellant.
    First District (5th Division)
    No. 1—91—3952
    Opinion filed November 13, 1992.

      Rita A. Fry, Public Defender, of Chicago (Robert D. Click, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and Kenneth T. McCurry, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE GORDON

delivered the opinion of the court:

Following a bench trial, defendant Charles Harris was convicted of robbery and theft. (Ill. Rev. Stat. 1989, ch. 38, pars. 18—1(a), 16—1(a)(1).) He was sentenced to four years’ probation for robbery on the condition that he absent himself from the State of Illinois. On appeal, defendant challenges his conviction and sentence, contending that: (1) he was not proven guilty of robbery beyond a reasonable doubt; and (2) the condition of his probation that he leave this State is invalid.

At trial, the victim, Lucille White, testified that about 11:30 a.m. on February 26, 1990, she was walking to work on Addison Street in Chicago. As she approached 5340 West Addison, she observed defendant come out of a gangway and approach her. When defendant was close to the victim, he pushed her, took her purse and ran. She chased defendant into another gangway and through a yard. As defendant ran, she also noticed the name “Interstate” in gold or yellow letters on the back of his jacket. After following him for awhile, she did not continue because she feared for her safety. The victim described her assailant to police as a black man with either a mustache or a beard who was wearing a dark blue or black jacket and a baseball cap.

The following morning, the victim took her car to a car wash located at Belmont and Long. As her car was being washed, she noted that one of the four car wash employees drying off a car was defendant. Upon identifying defendant, the victim moved to a corner of the car wash where she continued watching him until her car was ready. When her car was brought out to her, she left and drove to her father-in-law’s home, where she told her husband that she had just seen the man who robbed her the day before. The next time the victim saw defendant was after he was arrested about 10 days later.

Kurt Koziol, the owner of the car wash, testified that defendant was employed by him since the summer of 1988 or 1989. Koziol maintained time cards for each of his employees. Defendant’s time card indicated that on the day of the robbery, defendant punched in at 8:16 a.m. and punched out at 6:08 p.m. Since Koziol was “in and out” of the car wash on that date, he did not know whether defendant ate his lunch at work, although it was customary for the employees to do so. He also stated that since the car wash was busy that day, he wondered how defendant could have left. In addition, he could not remember whether defendant owned or ever wore a jacket with the word “Interstate” on the back.

Defendant denied taking the victim’s purse. He stated that on the date in question, he ate his lunch at work and did not leave the car wash at any time that day. He also denied owning a jacket as described by the victim. Defendant had several prior convictions, including one for theft.

At the close of all of the evidence, the court found defendant guilty of robbery and sentenced him to four years’ probation on the condition that he absent himself from Illinois.

Defendant first contends that he was not proven guilty of robbery beyond a reasonable doubt and that his conviction was the product of the victim’s mistaken identification of him as the man who robbed her. At issue, therefore, is whether the identification of defendant as the robber was proven beyond a reasonable doubt.

In a bench trial, it is the function of the trial court, as the trier of fact, to assess the credibility of the witnesses, to determine the weight that should be accorded their testimony and to resolve any inconsistencies and conflicts within that testimony. (People v. Bradford (1989), 187 Ill. App. 3d 903, 917, 543 N.E.2d 918.) On review, a criminal conviction will not be set aside unless the evidence is so unsatisfactory, improbable or implausible that it creates a reasonable doubt as to defendant’s guilt. (People v. Slim (1989), 127 Ill. 2d 302, 307, 537 N.E.2d 317.) When presented with a challenge to the sufficiency of the evidence, it is not the reviewing court’s function to retry the defendant (People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267), or to substitute its judgment for that of the trier of fact (People v. Snulligan (1990), 204 Ill. App. 3d 110, 118, 561 N.E.2d 1125). Rather, the reviewing court must determine, after viewing all of the evidence in the light most favorable to the prosecution, whether any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. People v. Collins, 106 Ill. 2d at 261.

The burden is on the prosecution to prove beyond a reasonable doubt the identity of the person who committed the offense. (Ill. Rev. Stat. 1989, ch. 38, par. 3—1.) The testimony of a single eyewitness is sufficient to support a conviction provided that the witness had the opportunity to view the accused under circumstances which would permit a positive identification. (People v. Slim, 127 Ill. 2d at 307.) This is so even in the presence of contradictory alibi testimony, provided that the witness’ in-court identification is positive and credible. People v. Slim, 127 Ill. 2d at 307.

In evaluating a victim’s identification testimony, the circumstances to be considered include: (1) the opportunity the victim had to view the accused during the incident; (2) the victim’s degree of attention; (3) the accuracy of the victim’s prior description of the accused; (4) the certainty with which the victim identifies the accused; and (5) the length of time between the commission of the crime and the victim’s identification of the accused. (People v. Slim, 127 Ill. 2d at 307-08.) It is not required that a witness distinguish individual features when identifying a suspect. (People v. Slim, 127 Ill. 2d at 308-09.) A positive identification has been held to be sufficient where the witness provides a general description of the accused, one which is based on the total impression the accused’s appearance made on the witness. People v. Slim, 127 Ill. 2d at 309.

In the instant case, the victim was a credible identification witness for the prosecution. She had a good opportunity to observe defendant in broad daylight during the incident. Her view of him was clear and unobstructed. As defendant emerged from the gangway and approached her, she had ample time to focus on his face. In addition, her identification of defendant was certain at the time of his arrest and at trial. When she saw defendant at the car wash, the day after the robbery, she was so frightened that she hid from him. Although the defense presented alibi testimony, the trier of fact was not obligated to accept this testimony over victim’s positive identification of defendant. (People v. Slim, 127 Ill. 2d at 315.) The weight to be accorded such alibi evidence is a credibility question for the trier of fact. (People v. Slim, 127 Ill. 2d at 315.) Defendant questions the length of time between the date of the robbery and the date of his arrest, but we find, as the court did in Slim, that the time period of a week and a half was not significant considering the nature of the incident and the surrounding circumstances. (People v. Slim, 127 Ill. 2d at 313.) Based on our review of the record and the application of the above principles to the instant case, we find that the evidence is sufficient to support the trial court’s finding that defendant was guilty of robbery beyond a reasonable doubt.

Defendant also contests the condition of probation requiring that he leave Illinois. Section 5—5—3(b) of the Unified Code of Corrections (Code) delineates the appropriate dispositions which a trial court can use alone or in combination for felonies such as defendant was convicted of in this case. These options include a period of probation, a term of periodic imprisonment, a term of conditional discharge, a term of imprisonment and a fine. (Ill. Rev. Stat. 1989, ch. 38, par. 1005—5—3(b).) In addition, there is legal precedent which indicates that a trial court can offer the defendant the choice between imprisonment or probation. People v. Harris (1985), 105 Ill. 2d 290, 294, 473 N.E.2d 1291; People v. Vettese (1978), 61 Ill. App. 3d 279, 280, 377 N.E.2d 1168.

In the instant case, although defendant has a criminal background, he has had no prior felony convictions. Therefore, based on section 5—5—3(b) of the Code, the trial court in this case was free to impose a sentence of probation or imprisonment or both. In actuality, as in Harris and Vettese, the trial court gave defendant the choice between a sentence consisting of imprisonment or probation. Defendant chose the latter.

In determining the conditions of probation to be imposed upon a defendant, a trial court generally is given wide discretion. (People v. Pickens (1989), 186 Ill. App. 3d 456, 461, 542 N.E.2d 1253.) In Pick-ens, apparently the only Illinois case to date involving banishment as a condition of probation, defendant, who was convicted of the misdemeanor offense of prostitution, was sentenced to one year’s probation. As a condition of that probation, she was ordered by the trial court to stay out of a 50-block area of downtown Champaign where the majority of the city’s prostitution arrests were made. (People v. Pickens, 186 Ill. App. 3d at 459.) The trial court believed that the travel restriction “would maximize defendant’s chance of staying away from prostitution activity and concluded [that] it was a reasonable and necessary condition to assist defendant in avoiding future criminal conduct.” (People v. Pickens, 186 Ill. App. 3d at 459.) The court emphasized that there were no legitimate activities in which the defendant might have engaged in that restricted area. (People v. Pickens, 186 Ill. App. 3d at 459.) The defendant in Pickens contended on appeal that the order was an abuse of the trial court’s discretion because it was not reasonable as required by statute (Ill. Rev. Stat. 1987, ch. 38, par. 1005—6—3(b)) and was unconstitutionally overbroad. People v. Pickens, 186 Ill. App. 3d at 459.

The appellate court found that a trial court was permitted by statute to restrict the liberty of a probationer. (People v. Pickens, 186 Ill. App. 3d at 461.) A trial court can impose a term of imprisonment, periodic imprisonment, or home confinement, “ ‘in addition to other reasonable conditions.’ ” (People v. Pickens, 186 Ill. App. 3d at 461, quoting Ill. Rev. Stat. 1987, ch. 38, pars. 1005—6—3(b)(1), (b)(10), (d).) The appellate court noted that any of these conditions would impose a far greater restriction on travel than the one imposed by the trial court in Pickens. (People v. Pickens, 186 Ill. App. 3d at 461.) In addition, the court observed that since probation already contains the condition that the probationer “ ‘not leave the State without *** consent,’ ” the probation statute itself provided for a travel restriction with a proviso. (People v. Pickens, 186 Ill. App. 3d at 461, quoting Ill. Rev. Stat. 1987, ch. 38, par. 1005—6—3(a)(4).) Therefore, in affirming the trial court’s decision, the appellate court held that “[a] court may, as a condition of probation or other sentence short of incarceration, bar a defendant from certain areas if the penalty is reasonably related to the offense, provided that, if the defendant has a legitimate and compelling reason to go to that area or place, he may apply to a specified authority for specific permission.” (Emphasis omitted.) (People v. Pickens, 186 Ill. App. 3d at 461.) The appellate court found that the proviso to the defendant’s condition of probation, which permitted her to obtain written permission to enter the restricted area from her probation officer provided she had a legitimate reason, removed the “taint of banishment” from the restrictive condition and provided for supervised entry into the area. People v. Pickens, 186 Ill. App. 3d at 461-62.

As noted in Pickens, courts in other jurisdictions have also imposed geographic travel restrictions as a condition of probation to achieve rehabilitation and accomplish deterrence goals. (People v. Pickens, 186 Ill. App. 3d at 459.) In some cases, these geographical restrictions have been found to be unreasonable or unconstitutional. (People v. Pickens, 186 Ill. App. 3d at 460-61.) Although banishment cases are, for the most part, uncommon, those which have held banishment to be an invalid condition, as imposed, exemplify the fact that, while trial courts have a great deal of latitude in setting the conditions of a defendant’s probation, their discretion is not boundless. (People v. Beach (1983), 147 Cal. App. 3d 612, 620, 195 Cal. Rptr. 381, 386.) It is important, therefore, to briefly examine some of these cases in our effort to determine whether the trial court in the instant case reached the proper conclusion.

In People v. Beach, defendant was convicted of involuntary manslaughter and was granted probation for five years on certain terms and conditions, one being that she absent herself from her community. (People v. Beach, 147 Cal. App. 3d at 618, 195 Cal. Rptr. at 384.) On appeal, the court agreed with the defendant that her banishment from the community where she had lived in her own home for 24 years was both an unconstitutional and unreasonable condition of probation. People v. Beach, 147 Cal. App. 3d at 620-22, 195 Cal. Rptr. at 385-87.

The defendant in In re White, who was convicted of soliciting an act of prostitution, brought habeas corpus proceedings contending, inter alia, that her banishment from three urban areas as a condition of her two-year probation was improper because it violated a variety of her constitutional rights and did not comport with State probation law. (In re White (1979), 97 Cal. App. 3d 141, 143-45, 158 Cal. Rptr. 562, 563-65.) The appellate court held that her banishment from the specified map area was unnecessarily broad. In re White, 97 Cal. App. 3d at 147, 158 Cal. Rptr. at 566.

Similarly, in State ex rel. Halverson v. Young (1967), 278 Minn. 381, 382, 154 N.W.2d 699, 702, and People v. Blakeman (1959), 170 Cal. App. 2d 596, 597, 339 P.2d 202, 203, two significantly older cases, the defendants were directed to absent themselves from the State for the crime of burglary (Young, 278 Minn. 381, 154 N.W.2d 699) and from the community for the crime of assault and battery (Blakeman, 170 Cal. App. 2d 596, 339 P.2d 202) as a condition of their probations. On appeal, the courts in Young and Blakeman held that it was beyond the power of the trial court to impose banishment as a condition of probation and found that the imposition of such a condition is a void and separable part of the order granting probation. State ex rel. Halverson v. Young, 278 Minn, at 385, 154 N.W.2d at 702; People v. Blakeman, 170 Cal. App. 2d at 597, 339 P.2d at 202-03.

Although the trial court has wide discretion in selecting the conditions of a defendant’s probation which will foster rehabilitation while protecting the public, the exercise of this discretion must be reasonable and is limited by certain constitutional safeguards. (People v. Beach, 147 Cal. App. 3d at 620, 195 Cal. Rptr. at 385.) To be considered reasonable, a condition of probation must not be overly broad when viewed in the light of the desired goal or the means to that end. (People v. Beach, 147 Cal. App. 3d at 621, 195 Cal. Rptr. at 386.) The constitutional safeguards, which circumscribe a trial court’s exercise of its discretion to impose conditions, are the basic constitutional rights of the probationer. (People v. Beach, 147 Cal. App. 3d at 621, 195 Cal. Rptr. at 386.) These rights, however, are not absolute and may, in a reasonable manner, be restricted if in the public interest. (People v. Beach, 147 Cal. App. 3d at 622, 195 Cal. Rptr. at 387.) In evaluating whether a probationer’s rights should be restricted, courts determine whether: (1) the condition of probation reasonably relates to the intended purpose of the legislation, to foster rehabilitation; (2) the value to the public of the imposition of this condition manifestly outweighs any impairment of a probationer’s constitutional rights; and (3) there are any alternative means that are less subversive to the probationer’s constitutional rights which would still comport with the purposes of the legislation conferring the benefit of probation. People v. Beach, 147 Cal. App. 3d at 622, 195 Cal. Rptr. at 387.

Turning to the instant case, we find that close scrutiny of the unusual and severe condition of defendant’s probation is warranted. (In re White, 97 Cal. App. 3d at 146, 158 Cal. Rptr. at 565.) This is apparently a case of first impression in Illinois. Although Pickens is an Illinois case involving a sentence of probation with banishment as a condition of that probation, it is unlike the case at bar in that the trial court in the instant case gave defendant the choice between a sentence consisting of imprisonment or probation with a banishment condition. The fact that defendant chose his sentence in this case does not serve to preclude him from appealing an improper condition of his probation. In re White, 97 Cal. App. 3d at 146, 158 Cal. Rptr. at 565.

Based on our discussion of the above principles, we find that the condition of defendant’s probation that he leave the State of Illinois is unreasonable. A review of the record does not reveal any justifiable basis for the imposition of such an overly broad condition. Furthermore, we perceive no valid purpose to be served in banishing defendant from this State.

The State contends that should this court find that the banishment condition of probation is unlawful, then defendant’s entire sentence is void, and the case must be remanded for resentencing where the full range of sentencing options, including imprisonment, would be available to the trial court. We disagree. The single condition of banishment, which we have found to be unlawful, does not vitiate the basic sentence of probation so as to permit sentence enhancement contrary to the provisions of section 5—5—4 of the Unified Code of Corrections. (Ill. Rev. Stat. 1989, ch. 38, par. 1005—5—4.) We also reject the State’s argument on constitutional grounds. North Carolina v. Pearce (1969), 395 U.S. 711, 23 L. Ed. 2d 656, 89 S. Ct. 2072.

Therefore, for all of the foregoing reasons, we affirm defendant’s conviction, reverse the banishment condition of his probation and remand this cause for reconsideration of appropriate conditions of probation in compliance with section 5 — 5—4 of the Unified Code of Corrections. Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 5—4.

Affirmed in part; reversed in part; and cause remanded with directions.

McNULTY, P.J., and LORENZ, J., concur.


source: Caselaw Access Project

author: JUSTICE SCARIANO

license: Public Domain

text:
    RAYVON LOLLIS, Plaintiff-Appellant, v. CHICAGO TRANSIT AUTHORITY et al., Defendants-Appellees.
    First District (2nd Division)
    No. 1—91—4096
    Opinion filed November 17, 1992.

      Benjamin & Shapiro, Ltd., of Chicago (Fred I. Benjamin and Stephen C. Zollman, of counsel), for appellant.
    William H. Farley, Jr., of Chicago Transit Authority, of Chicago (Timothy Fair, of counsel), for appellees.
   JUSTICE SCARIANO

delivered the opinion of the court:

Plaintiff Rayvon Lollis appeals from the trial court’s entry of judgment on an arbitration award in favor of defendants, the Chicago Transit Authority (CTA) and its employee, Robert L. Ferguson, contending that in view of his rejection of the award, the judgment was unsupported by case law or statute and, presumably, supreme court rules.

Plaintiff filed an action against the CTA and Ferguson in November 1985, alleging that he suffered personal injuries when the bus which was driven by Ferguson, and on which plaintiff was a passen-. ger, stopped suddenly. Plaintiff originally sought damages in excess of $15,000, but ultimately agreed to transfer the action to the mandatory arbitration calendar pursuant to Supreme Court Rule 86(d). (134 Ill. 2d R. 86(d).) The three-member arbitration panel handed down its award in favor of defendants on July 1, 1991.

On July 11, 1991, plaintiff, pursuant to Supreme Court Rule 93(a) (134 Ill. 2d R. 93(a)), filed his rejection of the award, paid the requisite $200, and mailed defendants notice of his rejection of the award.

The parties then prepared for trial. The trial court held a conference on August 1, 1991, and ordered a status report for October 16, 1991; the trial was set for a week later, October 23, 1991. At the status call on October 16, 1991, the court held another conference with the parties, at which counsel for plaintiff informed the court and defendants’ counsel that plaintiff was then in the custody of the Illinois Department of Corrections.

On October 23, 1991, the cause was called for trial and defendants answered “ready” but, because plaintiff remained incarcerated, his counsel answered “not ready” and requested a short continuance. The court denied the request, finding that plaintiff had not adequately preserved his right to reject the arbitration award for defendants, given plaintiff’s inability to proceed to trial. It therefore entered judgment on the arbitrators’ award in favor of defendants and ordered plaintiff’s $200 arbitration refusal fee refunded.

On October 31, 1991, plaintiff filed a motion seeking to vacate the court’s order of October 23, 1991; he also sought the court’s approval of a voluntary dismissal of his action. The court denied the motion. Plaintiff thereupon filed an amended motion to vacate and voluntarily dismiss, but the court, on December 9, 1991, denied this motion as well. This appeal followed.

Plaintiff argues that the trial court erred when it determined that because he was not prepared to go to trial when his case was called, he had inadequately preserved his rejection of the arbitration award; consequently, the court’s rendering judgment on the award amounted to an impermissible disposition of the action with prejudice.

Since the trial court was operating under the recently promulgated supreme court rules on mandatory arbitration, our inquiry must begin by examining those rules. Supreme Court Rule 92(c), which governs the entry of judgments on an arbitrator’s award, states: “In the event none of the parties files a notice of rejection of the award and requests to proceed to trial within the time required herein [(30 days from the filing of the award)], any party thereafter may move the court to enter judgment on the award.” (134 Ill. 2d R. 92(c).) After parsing this rule, it becomes apparent that the trial court erred twice in entering judgment on the arbitration award. Its first error was to do so sua sponte. Rule 92(c) places the obligation on the parties to bring the motion; it makes no provision for the court to enter judgment on its own motion. 134 Ill. 2d R. 92(c); see also Ill. Ann. Stat., ch. 110A, R. 92(c), Committee Comments, at 69 (Smith-Hurd Supp. 1992) (“Unless the parties stipulate to dismiss the cause after the hearing and award, it is incumbent on a party to move the court to enter judgment after the 30-day period allowed for rejection at Rule 93 herein”).

Moreover, in view of plaintiff’s rejection of the award, the court also erred when it entered judgment on the award. Rule 92(c) permits entry of judgment on the arbitrators’ award only if no party rejects it. (134 Ill. 2d R. 92(c); see also Campbell v. Washington (1991), 223 Ill. App. 3d 283, 285, 585 N.E.2d 187, 188 (“Supreme Court Rule 92(c) [citation] permits the trial court to enter judgment on the award only in the event that no party files a notice of the rejection of the award.”) (Emphasis added).) Plaintiff not only filed the notice of rejection of the award on time, but he also employed the prescribed form.

The trial court implicitly held that a party who rejects arbitration must be prepared to go to trial when called to perfect his rejection of the arbitration award. However, because such an interpretation of the rule is inconsistent with the language thereof, it cannot be sustained. Supreme Court Rule 93(a) (134 Ill. 2d R. 93(a)) mandates the procedure with which the parties to an arbitration must comply in order to reject an arbitrator’s award. It provides in pertinent part:

“(a) Rejection of Award and Request for Trial. Within 30 days after the filing of an [arbitration] award with the clerk of the court, and upon payment of the sum of $200 to the clerk of the court, any party who was present at the arbitration hearing, either in person or by counsel, may file with the clerk a written notice of rejection of the award and request to proceed to trial, together with a certificate of service on all other parties.” 134 Ill. 2d R. 93(a).

Plaintiff complied with all of the procedural dictates of Rule 93(a): He filed his notice of rejection on July 11, 1991, which was only 10 days after the arbitrators filed their award, and 20 days prior to the 30-day deadline of the rule; he paid the $200 filing fee; and he served notice on the parties by mail. These are the only three requirements mentioned in the rule with which he needed to comply in order to register a rejection of the award. The trial court impermissibly imposed a fourth requirement: that plaintiff be ready to proceed to trial when called. It is readily apparent that the trial court misconstrued Supreme Court Rules 92 and 93 in this case.

However, “it is well settled that the judgment of the court below will be affirmed if it is justified in the law for any reason or ground appearing in the record regardless of whether the particular reasons given by the trial judge *** are correct or sound.” (Thornton v. Williams (1980), 89 Ill. App. 3d 544, 549, 412 N.E.2d 157, 161; see also Material Service Corp. v. Department of Revenue (1983), 98 Ill. 2d 382, 387, 457 N.E.2d 9, 12.) In consonance with that well-established rule, defendants advance two arguments in support of the trial court’s decision here. First, they suggest that the trial court acted within its discretion by dismissing this action with prejudice given plaintiff’s failure to “present a proper motion for a trial continuance.” (Defendant’s Brief, at 8, citing Cook County Circuit Court Rule 5.2.) Alternatively, they ask this court to construe “proceed to trial,” as used in Supreme Court Rule 93(a) (134 Ill. 2d R. 93(a)), to ensure only an opportunity to go to trial.

We find defendants’ first suggestion to be irredeemably without merit. Circuit Court Rule 5.2 deals only with continuances if an attorney is engaged in another trial or hearing; it also precludes continuances “upon the ground of substitution or addition of attorneys,” and forbids renewal of motions for continuances before the trial judge if the motion has been previously denied by a “central assignment judge.” (Circuit Court of Cook County R. 5.2.) There is nothing in this rule that has any relevance to the issue in this case.

Defendants’ other proposal by which they suggest that we may sustain the trial court’s ruling calls for our construing the phrase “proceed to trial,” for the purposes of Supreme Court Rule 93, as ensuring only an opportunity to go to trial. If we adopt this proposed construction of the phrase, defendants argue, the lower court would not have erred, as it did afford plaintiff “an opportunity to go to trial,” and any prejudice suffered by plaintiff would have resulted from his failure to seize the opportunity on October 23,1991.

This argument, however, is off the mark as well. It is conceivable, when viewing Supreme Court Rule 93(a) in isolation, to read it as defendants suggest. However, Rule 93(a) is only part of a comprehensive package of rules promulgated by the court to create a system of mandatory arbitration in Illinois. To give full effect to the overall legislative scheme, we cannot read the arbitration rules in a vacuum; we must attempt to harmonize the rules as a unified body of law. See Weisenburn v. Smith (1991), 214 Ill. App. 3d 160, 573 N.E.2d 240, citing Castaneda v. Illinois Human Rights Comm’n (1989), 132 Ill. 2d 304, 547 N.E.2d 437.

When the arbitration rules are viewed as a whole, it quickly becomes clear that defendants’ proposed construction of Rule 93(a) is untenable. Rule 86(e) states: “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).) In addition, the Committee’s comment on the rule explains that sub-paragraph (e) was added to the rules to allay the fears of some that the arbitration procedure would be sui generis. (Ill. Ann. Stat., ch. 110A, R. 86(e), Committee Comments, at 60 (Smith-Hurd Supp. 1992).) The comments emphatically deny that the arbitration procedures would be separate and distinct from the rules of procedure normally followed in civil cases.

The rules on arbitration exhibit no intent to strip from a participant in arbitration the right to refile after an involuntary dismissal. Consequently, pursuant to Rule 86(e), section 13 — 217 of the Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 13 — 217) applies with equal force to actions that come before the court after arbitration awards have been rejected; and since section 13 — 217 (Ill. Rev. Stat. 1991, ch. 110, par. 13 — 217) applies to arbitration cases, this court cannot construe Rule 93(a) in the manner suggested by defendants.

Moreover, we find that the applicability of section 13—217 (Ill. Rev. Stat. 1991, ch. 110, par. 13—217) to this action unequivocally establishes that the trial court erred and that its judgment cannot be upheld under any rationale. The trial court, in effect, dismissed plaintiff’s action for want of prosecution. The cases construing section 13—217 make it clear that a dismissal for want of prosecution in Illinois is not considered an adjudication on the merits; it does not prejudice the action of the party against whom it is entered; nor does it bar a subsequent suit. (Franzese v. Trinko (1977), 66 Ill. 2d 136, 140, 361 N.E.2d 585, 587.) This is true even where the party is not diligent in the prosecution of his claim. (Wold v. Bull Valley Management Co. (1983), 96 Ill. 2d 110, 449 N.E.2d 112; Aranda v. Hobart Manufacturing Corp. (1977), 66 Ill. 2d 616, 363 N.E.2d 796 (holding that a plaintiff whose action was dismissed for want of prosecution after being on the “no progress” calendar for two years was still entitled to refile under the predecessor of today’s section 13—217); Franzese v. Trinko (1977), 66 Ill. 2d 136, 140, 361 N.E.2d 585, 587 (rejecting defendant’s suggestion to engraft a “diligent suitor” requirement on what is now section 13—217 (Ill. Rev. Stat. 1991, ch. 110, par. 13—217)).) Section 13—217 evinces a State policy which values the notion that cases should be decided on their merits and that plaintiffs, both the diligent and the dilatory, have their day in court. The trial court’s judgment ignores this policy and therefore cannot be sustained.

Reversed and remanded.

HARTMAN, P.J., and DiVITO, J., concur.


author: PRESIDING JUSTICE GREIMAN JUSTICE TULLY,

text:
    LAKE COUNTY TRUST COMPANY, as Trustee, et al., Plaintiffs-Appellees, v. TWO BAR B, INC., a/k/a Two-Bar-B Ranch, Inc., et al., Defendants-Appellants.
    First District (3rd Division)
    No. 1—91—0928
    Opinion filed November 4, 1992.

      TULLY, J., dissenting.
    David Jaffe and Duane J. O’Connor, both of Kankakee, for appellants.
    Michael D. Richman, of Dardick & Denlow, and Richard Kleinman, of Bernard Kleinman, Ltd., both of Chicago, for appellees.
   PRESIDING JUSTICE GREIMAN

delivered the opinion of the court:

Defendant Two Bar B, Inc. (Two Bar B), appeals from an order entered on February 8, 1991, granting summary judgment to plaintiff Holland Farms, Inc. (Holland Farms), and awarding certain crop share proceeds to Holland Farms.

On appeal Two Bar B raises three issues: (1) the trial court erred in granting summary judgment to Holland Farms on February 8, 1991; (2) the trial court erred in denying Two Bar B’s motion to strike an affidavit filed on behalf of Holland Farms; and (3) plaintiffs’ failure to sign its motion for summary judgment renders the trial court’s order void.

We affirm the summary judgment order in favor of Holland Farms because the assignment of rents upon which Two Bar B relied required the holder to be in possession of the realty before exercising rights under the assignment. The denial of Two Bar B’s motion to strike an affidavit was appropriate where any defect in the instrument was cured by a supplemental affidavit later filed. We also find that Two Bar B failed to raise objections in a timely manner regarding the lack of a signature on plaintiffs’ motion for summary judgment and thus waived this issue.

The basic controversy is whether Two Bar B or Holland Farms is entitled to money received in 1985 from the sale of certain farm crops. The underlying facts are not in dispute.

On June 13, 1983, plaintiff Lake County Trust Company (the Trust), as the buyer, executed a real estate contract with Two Bar B, as the seller, for the purchase of certain farmland in Jasper County, Indiana. On July 6, 1983, three documents were executed by the Trust relating to this purchase: (1) an installment note; (2) a purchase money mortgage (Trust Deed) to secure payment of the installment note; and (3) an assignment of rents.

The installment note provided that “the sole remedy of the holder hereof shall be by foreclosure of the said trust deed given to secure the indebtedness evidenced by this note, in accordance with the terms and provisions in said trust deed.” The installment note also makes reference to “the assignment of rentals.”

The assignment of rents states that it further secures the installment note (“on order to further secure said indebtedness and a part of consideration of said transaction”) and also that it was intended “to establish an absolute transfer and assignment.” The assignment of rents further allows the assignee to have the power to use the rentals to apply to any present or future liability exercisable only after default in the payment of the mortgage, although it does not particularize the mechanics of the exercise of such power granted.

The mortgage was held by defendant City National Bank of Kankakee (the Bank), which was acting as the agent of Two Bar B.

Holland Farms is the sole beneficiary of the Trust. On September 28, 1983, Holland Farms entered into a crop share lease with the Koebcke brothers (Ronald, James, and Douglas Koebcke) involving farmland which was included in the Jasper County farmland purchased by the Trust. Under the lease, the Trust delegated its right to Holland Farms to act as the farm's manager. As the manager, Holland Farms rented the land to the Koebcke brothers on a 50/50 crop share basis, meaning that the Koebcke brothers agreed to pay Holland Farms as annual rent 50% of the crop proceeds from the sale of farm crops.

On September 16, 1985, the Bank sent a notice to the Trust stating that the installment note was in default.

In October 1985, several checks totaling about $67,000 were made payable to the order of “Jasper Farms c/o Lake Co. Trust Co. & City National Bank of Kankakee.” “Jasper Farms” is the assumed business name of Holland Farms. These checks, issued by Cargill, Inc. (Cargill), represented a 50% share of the farm crops which had already been harvested and sold. It is these proceeds which are the subject of this litigation.

On December 2, 1985, since the Cargill checks were made payable to two parties, the Trust and Holland Farms filed an interpleader and declaratory judgment action in Illinois to claim their right to the funds. Thereafter, Two Bar B filed a first amended counterclaim seeking entitlement to the same funds.

On January 14, 1986, while the Illinois declaratory judgment action was still pending, Two Bar B filed a mortgage foreclosure action in Indiana against both the Trust and Holland Farms seeking to foreclose the mortgage on the property to which the Holland Farms-Koebeke brothers’ lease related and to collect the same monies (Cargill checks) based on the assignment of rents. In this Indiana mortgage foreclosure action, Two Bar B sought and obtained, on March 10, 1986, a court-appointed receiver to farm and manage the farmland in Jasper County.

In 1987, the trial court in the Illinois declaratory judgment action, granted the Trust and Holland Farms’ motion to dismiss Two Bar B’s amended counterclaim.

On appeal from this 1987 order, this court in Lake County Trust Co. v. Two Bar B, Inc. (1989), 182 Ill. App. 3d 186, 537 N.E.2d 1015, found, among other things, that the language of two documents (the installment note and assignment of rents) was ambiguous, reversed the order granting the motion to dismiss Two Bar B’s amended counterclaim, and remanded the case to allow the parties to present extrinsic evidence regarding their intent as to the remedy provisions in the instruments.

Upon remand, the parties filed cross-motions for summary judgment. On December 4, 1990, following a hearing, the trial court denied Two Bar B’s motion to strike an affidavit filed by Holland Farms and also granted summary judgment in favor of Two Bar B. Holland Farms then moved for reconsideration of the trial court’s December 4, 1990, order.

On February 8, 1991, at a hearing on Holland Farms’ motion for reconsideration, the trial court vacated its December 4 order in favor of Two Bar B and entered summary judgment for Holland Farms. In short, the trial court found the assignment of rents was simply additional security for the trust deed and installment note which it secured and that all three instruments must be construed together. Moreover, the assignment of rents could not be considered as a separate instrument. Two Bar B’s right under the note and mortgage were that of a mortgagee and as such mortgagee, Two Bar B had no entitlement to the proceeds or the sale of crops until it actually took possession of the subject real estate. Thus, the trial court found that Holland Farms was entitied to the crop proceeds because the money had been tendered (October 1985) months before Two Bar B took possession (March 1986).

Initially, we note, contrary to Holland Farms’ assertion that the applicable standard of review is abuse of discretion, the de novo standard of review must be applied in reviewing summary judgments. Demos v. National Bank (1991), 209 Ill. App. 3d 655, 567 N.E.2d 1083.

Simply stated, the parties disagree as to the nature of the assignment of rents instrument and the effect of the exercise of powers seemingly granted by the terms of that instrument.

Two Bar B characterizes the assignment of rents as a collateral, free-standing instrument that created rights separate from the rights reserved to the holder of the mortgage. With this understanding, Two Bar B maintains that the common law of assignments and the statutory law for security interests under article 9 of the Uniform Commercial Code (UCC) (Ill. Rev. Stat. 1989, ch. 26, par. 9—101 et seq.) apply and that Two Bar B’s rights under the assignment of rents vested at the time the default occurred.

Holland Farms maintains that the assignment of rents was not independent of the mortgage and the installment note but rather was only additional security for the indebtedness in the event of a default and thus primarily asserts that the law applicable to mortgages controls. Applying the principles of mortgage law, Holland Farms argues that Two Bar B must take actual possession or obtain a court-appointed receiver to assert the power under the assignment of rents and that notice of demand alone was not sufficient.

When this court first considered this case, we noted that parties to a contract are free to limit their rights, duties and obligations by express agreement. (Lake County Trust, 182 Ill. App. 3d at 192.) However, we found that the agreement between the parties, consisting of the installment note and the assignment of rents, was ambiguous due to the apparent conflict between the exclusive remedy language in the installment note and the language allowing for a remedy under an assignment of rents. Accordingly, we remanded to allow the trial court to consider extrinsic evidence regarding this issue. Lake County Trust, 182 Ill. App. 3d at 193.

As a preliminary matter, we consider sua sponte the applicability of Illinois law to the present case.

“[A] conflict of laws problem is presented whenever a legal controversy arises in which there is a foreign element.” (11 Ill. L. & Prac. Confict of Laws §2, at 117 (1981).) In the present case, the controversy stems from the crops grown and harvested on the farmland in Indiana and the construction to be given certain security instruments executed in connection with the sale and financing of Indiana real estate.

Illinois courts rely on the principles enunciated in the Restatement (Second) of Conflict of Laws in resolving conflict-of-law questions. In re Marriage of Adams (1990), 133 Ill. 2d 437, 446, 551 N.E.2d 635; International Surplus Lines Insurance Co. v. Pioneer Life Insurance Co. (1990), 209 Ill. App. 3d 144, 152, 568 N.E.2d 9.

The Restatement (Second) of Conflict of Laws regarding property provides that “it is a firmly established principle that questions involving interests in immovables are governed by the law of the situs.” (Restatement (Second) of Conflict of Laws §222, Introductory Note (1971).) The Restatement (Second) explains that the “term ‘immovables’ *** refers to land and to things that are so attached, or otherwise related, to the land as legally to be regarded a part of it.” Restatement (Second) of Conflict of Laws §222, Introductory Note (1971).

This principle is consonant with the traditional legal doctrine that the law of the State where the real estate is situated governs the rights of the parties. Dibble v. Winter (1910), 247 Ill. 243, 252, 93 N.E. 145; Smith v. Smith (1898), 174 Ill. 52, 58, 50 N.E. 1083.

The subject matter of the documents at issue was the farmland in Indiana and accordingly, we find that Indiana law controls.

In Indiana, and Illinois, “[i]t is commonly accepted that where other instruments are executed contemporaneously with a mortgage and are part of the same transaction, a mortgage may be modified by other instruments and all the documents are to be read together to determine and give effect to the intention of the parties.” (Merchants National Bank & Trust Co. v. H.L.C. Enterprises, Inc. (Ind. App. 1982), 441 N.E.2d 509; accord Tepfer v. Deerfield Savings & Loan Association (1983), 118 Ill. App. 3d 77, 80, 454 N.E.2d 676; 59 C.J.S. Mortgages §156, at 208 (1949).) The general rules employed to construe contracts are applicable to the construction of a mortgage. See Gilbert v. Lusk (1952), 123 Ind. App. 167, 106 N.E.2d 404.

The purpose of the subject instruments was to allow the Trust to buy the land from Two Bar B. To effectuate this purchase, the Trust and Two Bar B, among other defendants, contemporaneously executed three documents: (1) the installment note; (2) the purchase money mortgage (trust deed); and (3) an assignment of rents. Thus, in the present case, since all three instruments were executed for the same transaction, they are thereby interdependent and should be read together.

The express language of the assignment of rents provides two seemingly inconsistent intentions: (1) that it was intended only as additional security to assure repayment of the installment note (“in order to further secure said indebtedness, and as a part of the consideration of said transaction”); and (2) that it was intended “to establish an absolute transfer and assignment.” The assignment of rents did not contain a remedy provision but rather provided that upon default, the payee (Two Bar B) could exercise its rights. In the absence of a remedy provision in the assignment of rents and in light of the ambiguity found in the installment note, we would reasonably look to the mortgage instrument which in the instant case contains a standard “rents and profits” clause.

Absent a contrary provision in the mortgage, the mortgagor is entitled to the rents, profits and crops of the mortgaged property as long as he lawfully remains in possession of the premises. White v. Redenbaugh (1907), 41 Ind. App. 580, 82 N.E. 110; Favorite v. Deardorff (1882), 84 Ind. 555; accord Anna National Bank v. Prater (1987), 154 Ill. App. 3d 6, 17, 506 N.E.2d 769 (“[ujntil the mortgagee takes possession *** the mortgagor is entitled to the growing crops, and if the crops are severed from the land prior to the mortgagee’s taking possession, the mortgagor has an absolute right to them without liability to account to the mortgagee”).

In the present case, there is no dispute that the crops were harvested and sold prior to the initiation of a mortgage foreclosure action by Two Bar B and the appointment of receiver by a court. Accordingly, under the circumstances of this case, upon default, the initial remedy lies in the land, i.e., foreclosure.

To support its position that the law of assignments, not mortgages, applies, Two Bar B submits that the only relevant case is De Kalb Bank v. Purdy (1988), 166 Ill. App. 3d 709, 520 N.E.2d 957, and yet acknowledges that the DeKalb Bank case involves a “classic mortgage/trust deed instrument which included a standard assignment of rents provision.”

Since Illinois law is consistent with Indiana law in this matter, the DeKalb Bank case can be considered but we find that it is distinguishable. Unlike Two Bar B in the present case, when the mortgagors defaulted on their debt in DeKalb Bank, the mortgagee bank procured an injunction which restrained the mortgagors from disposing of any future rents that would be generated from a corn crop which had not yet been harvested or sold. However, the De Kalb Bank court noted that the mortgagee was not entitled to rent payments which had been paid to the mortgagors before the injunction order was entered. The court reasoned that, consistent with the principles of mortgage law, the injunction served to accomplish the same objective as the appointment of a receiver, i.e., placing the disputed funds in the court’s custody pending a final determination of the parties’ rights to the rents and profits. De Kalb Bank, 166 Ill. App. 3d at 716-17.

In contrast, Two Bar B in the present case took no court action to secure the crop proceeds at issue before the crops were harvested and sold in October 1985. Instead, the first time Two Bar B claimed a right to the proceeds was in a counterclaim filed in response to the declaratory judgment action filed by the Trust and Holland Farms in December 1985. Thereafter, Two Bar B filed a mortgage foreclosure action in January 1986. In accordance with the findings in DeKalb Bank, Two Bar B would not be entitled to past rents and profits, but only future proceeds.

Two Bar B also argues that the assignment of rents is enforceable under article 9 (secured transactions) of the Uniform Commercial Code. Ill. Rev. Stat. 1989, ch. 26, par. 9—101 et seq.

Two Bar B never raised this argument in either its motion for summary judgment, its objection to the motion for reconsideration filed by the Trust and Holland Farms, or in the hearing on the motion for reconsideration. Accordingly, we find that Two Bar B has waived this argument since an appellate court will not consider on review theories which were not presented to the trial court. Hux v. Raben (1967), 38 Ill. 2d 223, 225, 230 N.E.2d 831; Cosentino v. Price (1985), 136 Ill. App. 3d 490, 494, 483 N.E.2d 297.

Two Bar B next contends that the trial court erred in denying its motion to strike an affidavit by Bernard Kleinman on behalf of Holland Farms which was filed with the Trust and Holland Farms’ motion for summary judgment on October 19,1990.

As a threshold question, the Trust and Holland Farms contend that this court lacks jurisdiction to address the December 4, 1990, order because jurisdiction in this appeal is based on the trial court’s Supreme Court Rule 304(a) finding from the February 8, 1991, order only. 107 Ill. 2d R. 304(a).

The trial court’s order entered on March 5, 1991, granted the motion of the Trust and Holland Farms for the entry of a Rule 304(a) finding and specifically stated that “Pursuant to Supreme Court Rule 304(a), this Court finds no just reason to delay enforcement of or appeal from the Order entered by this Court on February 8, 1991.” This order also referred to the motion of reconsideration and the vacation of the order of December 4,1990.

The Trust and Holland Farms also assert that only the February 8, 1991, order is properly before this court on appeal because Two Bar B never identified the December 4, 1990, order in its notice of appeal as required by Supreme Court Rule 303(c)(2). 107 Ill. 2d R. 303(c)(2).

Two Bar B’s notice of appeal clearly identified the February 8, 1991, order and then stated that it “further Appeal[s] from the Court’s denial of Defendant-Appellant’s Motion to Strike Plaintiff-Appellee’s Affidavit of Bernard Kleinman in Support for Summary Judgment, dated October 17,1990.”

A notice of appeal is to be liberally construed and considered as a whole. (Burtell v. First Charter Service Corp. (1979), 76 Ill. 2d 427, 433, 394 N.E.2d 380; Jewel Cos. v. Serfecz (1991), 220 Ill. App. 3d 543, 547, 581 N.E.2d 186.) The appellate court is not deprived of jurisdiction where a deficiency is one of form only, not substance. (Burtell, 76 Ill. 2d at 434; Jewel Cos., 220 Ill. App. 3d at 547.) The purpose of the notice of appeal is to advise the prevailing party of the nature of the appeal and the briefs, not the notice of appeal itself, specify the precise points to be relied upon for reversal. Burtell, 76 Ill. 2d at 433-34; Korogluyan v. Chicago Title & Trust Co. (1991), 213 Ill. App. 3d 622, 572 N.E.2d 1154; Lakeview Trust & Savings Bank v. Estrada (1985), 134 Ill. App. 3d 792, 480 N.E.2d 1312.

We find that Two Bar B’s notice of appeal was sufficient to confer appellate jurisdiction to review the trial court’s denial of its motion to strike the Kleinman affidavit as this finding was made in the same order (December 4, 1990) which was the subject of the Trust and Holland Farms’ motion for reconsideration. Moreover, even though the notice of appeal did not expressly provide the date of the December 4, 1990, order, the matter was adequately conveyed to inform opposing parties of the nature of the appeal.

We now consider the merits of the trial court’s order which denied Two Bar B’s motion to strike the Kleinman affidavit.

The granting of a motion to strike is within the sound discretion of the trial court. (Knox College v. Celotex Corp. (1981), 88 Ill. 2d 407, 422, 430 N.E.2d 976.) The sufficiency of an affidavit in support of a motion for summary judgment is governed by Supreme Court Rule 191 (107 Ill. 2d R. 191). Rule 191 is satisfied “if from the document as a whole it appears the affidavit is based on the personal knowledge of the affiant and there is a reasonable inference that the affiant could competently testify to its contents.” Allied American Insurance Co. v. Mickiewicz (1984), 124 Ill. App. 3d 705, 708, 464 N.E.2d 1112, quoting Burks Drywall, Inc. v. Washington Bank & Trust Co. (1982), 110 Ill. App. 3d 569, 576, 442 N.E.2d 648; see also Purtill v. Hess (1986), 111 Ill. 2d 229, 241, 489 N.E.2d 867.

In the present case, the original affidavit by Bernard Klein-man, the sole surviving officer of Holland Farms, was filed with the Trust and Holland Farms’ motion for summary judgment on October 19, 1990. On November 26, 1990, Two Bar B filed its motion to strike the Kleinman affidavit, alleging certain deficiencies under Rule 191. On the same day (November 26, 1990), a supplemental affidavit was filed by Mr. Kleinman in response to Two Bar B’s motion to strike. Two Bar B never moved to strike Kleinman’s supplemental affidavit.

From our review of the record, we find that the contents of the original Kleinman affidavit sufficiently satisfied the requirements of Rule 191. Moreover, to the extent, if any, that the original affidavit was lacking, we believe the supplemental affidavit filed by Mr. Klein-man remedied the alleged deficiencies. Thus, we find that the trial court did not err in denying Two Bar B’s motion to strike the Klein-man affidavit.

Two Bar B next claims that the absence of a signature on the motion for summary judgment filed by the Trust and Holland Farms on October 19, 1990, renders the trial court’s February 8, 1991, order void. However, until the instant appeal, Two Bar B never contested the validity of the form or requisites of the summary judgment motion, but rather responded, without objection, to that motion and all subsequent pleadings. Two Bar B raises this issue for the first time on appeal. Accordingly, we find that Two Bar B has waived this issue.

For all the reasons stated, we affirm the trial court’s order granting summary judgment in favor of the Trust and Holland Farms.

Judgment affirmed.

CERDA, J., concurs.

JUSTICE TULLY,

dissenting:

I must respectfully dissent from the majority’s opinion as I believe the assignment of rents involved in this case is enforceable under article 9 of the Uniform Commercial Code (UCC) (Ill. Rev. Stat. 1989, ch. 26, par. 9—101 et seq.; Ind. Code Ann. §26—1—9—101 et seq. (West 1980)). Accordingly, I would reverse the trial court’s order of February 8,1991, granting summary judgment in favor of Holland Farms.

As the majority points out, Two Bar B failed to present to the trial court the issue of the applicability of article 9 of the UCC to this case; nevertheless, this court has the power to consider this argument and is not limited by the proceedings at the trial court level. (Hux v. Raben (1967), 38 Ill. 2d 223, 230 N.E.2d 831; In re Application of the County Treasurer (1975), 25 Ill. App. 3d 717, 323 N.E.2d 803.) I believe in order to effectuate an equitable and just resolution of this case we must examine this argument.

Section 9—102 of the UCC makes the UCC applicable to any business transaction which is intended to create a security interest in personal property, including crops. (Ill. Rev. Stat. 1989, ch. 26, par. 9—102; Ind. Code Ann. §26—1—9—102 (West 1980).) An assignment of rents is not excluded under section 9—104 of the UCC and, thus, an assignment of rents is covered by provisions of article 9. (Ill. Rev. Stat. 1989, ch. 26, par. 9—104; Ind. Code Ann. §26—1—9—104 (West 1980).) Therefore, in the present case, the assignment of rents would clearly fall within the ambit of article 9.

Section 9—503 of the UCC (Ill. Rev. Stat. 1989, ch. 26, par. 9—503; Ind. Code Ann. §26—1—9—503 (West 1980)) states that unless there is an exclusionary clause within a security agreement, a secured party, upon default, can take possession of the collateral, i.e., in this case, the monies received from the sale of the crops to Cargill, Inc., without judicial process.

The majority believes that the case of Anna National Bank v. Prater, 154 Ill. App. 3d 6, 506 N.E.2d 769, is dispositive of this issue. However, I believe Anna is distinguishable from the case sub judice and, in fact, suggests a resolution inapposite of that contained in the majority’s opinion. Anna dealt only with a “rents and profits” clause under a mortgage document, not a transaction involving a separate chattel mortgage as in the case here. The quote given by the majority in footnote 2 of its opinion unfortunately truncates the following from the Anna opinion:

“There is no question that growing crops may be the subject of an article 9 security interest before they have been severed from the land. Indeed, ANB, the mortgagee here, could have chosen to secure its loan to the [mortgagors] with an article 9 security interest on crops ‘growing or to be grown’ on the mortgaged property in addition to a mortgage on the real estate itself. Since ANB had no such security interest, ANB could claim the crops on the mortgaged premises only by foreclosing on its real estate mortgages and taking possession of the property before the crops were severed from the real estate. Thus, ANB’s interest in the crops was not an article 9 security interest and should not be so considered.” (Emphasis added.) Anna, 154 Ill. App. 3d at 18.

Thus, Anna quite correctly concludes that a mortgagee can choose to secure its loan with a collateral article 9 security interest on crops growing or to be grown on the mortgaged property, in addition to a mortgage instrument on the land itself.

It is my belief that the majority’s decision creates an additional burden upon secured creditors to file a lawsuit in the event of a relatively minor default, rather than simply executing on the assignment of rents: a ridiculous concept to behold. This holding creates yet another legal hurdle for individuals to surmount in a society already overburdened by litigation.

Consequently, the judgment of the circuit court of Cook County should be reversed.

       At least one Illinois court has held that conflict-of-law rules are resorted to only when a difference in the law would be determinative of the outcome of the litigation. (The Hartford v. Burns International Security Services, Inc. (1988), 172 Ill. App. 3d 184, 526 N.E.2d 463.) Where the circuit court determined its decision under the inappropriate law, reversal and remandment for further proceedings is proper when the law that was applied and the law that should have been applied are different. Adams, 133 Ill. 2d 437, 551 N.E.2d 635.

       Without a single citation, the dissent declares that the assignment of rents is secured by growing crops under article 9 of the Uniform Commercial Code (Ill. Rev. Stat. 1989, ch. 26, par. 9—101 et seq.) although a recent Illinois case has clearly decided this issue to the contrary. In Anna National Bank v. Prater (1987), 154 Ill. App. 3d 6, 17, 506 N.E.2d 769, the court stated:
      “A consideration of the nature of a mortgagee’s right to crops as rents and profits of mortgaged property under Illinois law leads us to conclude that this right constitutes, not a personal property interest subject to the UCC, but an interest that derives from and is incident to the mortgagee’s right to the real estate and that is thus governed by non-UCC law. Under well-established Illinois law, a clause in a real estate mortgage pledging rents and profits creates an equitable lien upon such rents and profits of the land, which may be enforced by the mortgagee upon default by taking possession of the mortgaged property. [(Emphasis added.)] [Citations.] *** Until the mortgagee takes possession, however, the mortgagor is entitled to the growing crops, and if the crops are severed from the land prior to the mortgagee’s taking possession, the mortgagor has an absolute right to them without liability to account to the mortgagee. [Citations.] *** Because, under Illinois law, a ‘rents and profits’ clause in a real estate mortgage conveys no separate right to the crops growing on the land, as would a chattel mortgage or article 9 security agreement, and because the real estate mortgagee’s right to such rents and profits arises only as an incident of foreclosure of the real estate involved, we find that such a clause does not create a security interest in personal property so as to be subject to the provisions of the UCC.”

        One can hardly imagine a clearer and more definitive statement. The dissent weakly attempts to distinguish Anna. It simply ignores Anna and other Illinois cases that have set out the requirements of a security agreement and the determination that a UCC security interest cannot exist in the absence of such a security agreement. Allis-Chalmers Corp. v. Staggs (1983), 117 Ill. App. 3d 428, 432, 453 N.E.2d 145.
      In voicing its concern over a “rents and profits” or “growing crops” litigation explosion, the dissent chooses to ignore our observation that an assignment of rents could have been drafted with an appropriate remedy provision to allow more direct action and further ignores the fact that although a proper security agreement encumbering growing crops could have been fashioned under the provisions of article 9 of the UCC, the parties failed to avail themselves of that opportunity in the instant case.

       Even assuming the UCC argument had not been waived, it is doubtful that the UCC applies in the present case because by its own terms, the UCC does not apply “to the creation or transfer of an interest in or lien on real estate, including a lease or rents thereunder.” Ill. Rev. Stat. 1989, ch. 26, par. 9—104(j); see also Anna National Bank, 154 Ill. App. 3d at 17(a “rents and profits” clause in a mortgage does not create a security interest in personal property for purposes of the UCC); Allis-Chalmers Corp. v. Staggs (1983), 117 Ill. App. 3d 428, 432, 453 N.E.2d 145 (a security interest cannot exist in the absence of a security agreement).