author: JUSTICE STOUDER PRESIDING JUSTICE HEIPLE,

text:
    KEVIN WINTER et al., Plaintiffs-Appellees, v. HENRY SERVICE COMPANY, Defendant-Appellant (Mayrath Industries, Inc., Defendant).
    Third District
    No. 3—89—0651
    Opinion filed July 13, 1990.

      HEIPLE, P.J., dissenting.
    John V. Patton, of Bozeman, Neighbour, Patton & Noe, of Moline, for appellant.
    Don J. McRae, of Kewanee, of appellees.
   JUSTICE STOUDER

delivered the opinion of the court:

The plaintiffs, Kevin and Debra Winter, brought suit against the defendants, Henry Service Company (Henry) and Mayrath Industries, Inc. (Mayrath), seeking to recover damages for personal injuries Kevin suffered when his hand became caught in a Mayrath bottom drive auger. The trial court denied the defendants’ subsequent motion to join Kevin’s father, Wilhelm Winter, as a third-party defendant. A jury found Henry 25% liable for Kevin’s injury. Henry appeals the trial court’s denial of its motion to join Wilhelm.

The record reveals that Kevin lost his right hand on October 30, 1979, when it became entangled in the intake end of a bottom drive auger he and Wilhelm were using to unload corn. The auger had been manufactured by Mayrath, and Wilhelm had purchased it in September of 1976 from Henry. Kevin, Wilhelm, and Kevin’s brother, Rodney, each testified that the auger was delivered by Henry without a screen or guard over the intake end. It was then used by the Winters without a screen or guard until Kevin’s injury.

The plaintiffs brought suit against the defendants on July 24, 1981. The pretrial depositions of Kevin and Wilhelm were taken on January 26, 1986, and September 29, 1986, respectively. Those depositions indicated that the auger was delivered to Wilhelm by Arlo Morey, a salesman for Henry. According to Kevin’s deposition, Wilhelm and Rodney had a conversation with Morey about the lack of a guard over the intake end of the auger, and Morey informed them that no guard was available and one was not needed. Wilhelm in his deposition also noted the conversation with Morey and agreed that Rodney was present during it.

At the start of trial on April 18, 1989, Rodney testified that when he first observed the auger after it was delivered, he thought it was unusual that it did not have a screen over the auger screw at the intake end. He further testified that he knew the purpose of the screen was to keep hands and feet out of the intake end. He therefore advised Wilhelm that a screen guard for the intake end should be procured.

After the first trial ended in a mistrial, the defendants took Rodney’s deposition. In his deposition, Rodney reiterated that he had told Wilhelm he should obtain a guard for the intake end. According to Rodney, Wilhelm then talked to Morey about it. Morey told Wilhelm that no guard was needed since it would just plug the auger and it would not feed properly. After being advised of this conversation, Rodney told Wilhelm that he should obtain the intake guard anyway. Thereafter, the auger was used without a guard until the accident.

Roughly two weeks after Rodney’s deposition was taken, both defendants filed motions requesting leave to file third-party complaints against Wilhelm for contribution, alleging that he had negligently used the auger without a screen over the intake end. The trial court denied the motions.

At a second trial, which began on July 26, 1989, Wilhelm testified about the conversation he had had with Morey. Wilhelm stated that Morey told him that guards were not available and that he would not want one. On cross-examination, however, Wilhelm admitted that sometime before Kevin’s injury he had seen other bottom drive augers with a screen over the intake end. Wilhelm also stated that he had only asked about a screen for the drive shaft above the intake end, not about a screen over the intake end itself.

Arlo Morey testified that he did not recall any conversation with the Winters concerning a guard or screen over the intake end or the drive shaft of the auger. He stated that subsequent to the delivery of the auger to the Winter farm, but before Kevin’s injury, he observed the bottom drive auger with the intake guard in place.

The jury returned a verdict finding that Kevin was 75% at fault and Henry was 25% at fault. It did not find any fault on the part of Mayrath. Under this computation, the plaintiffs received $125,000 in damages.

On appeal, Henry contends that the trial court abused its discretion in refusing to allow it to file a third-party complaint for contribution against Wilhelm. It argues that Rodney’s testimony evinced that it had a valid claim against Wilhelm for contribution. Henry characterizes Rodney’s testimony as a surprise, contending that it was unanticipated because of the close familial relationship between Rodney and Wilhelm.

Section 2—406(b) of the Code of Civil Procedure (the Code) (Ill. Rev. Stat. 1987, ch. 110, par. 2—406(b)) provides that within the time for filing its answer or thereafter by leave of court, the defendant may by third-party complaint bring in as a defendant a nonparty to the action who is or may be liable to it for all or part of the plaintiff’s claim against it. Furthermore, section 2—616(a) of the Code (Ill. Rev. Stat. 1987, ch. 110, par. 2—616(a)) provides that any time before final judgment, amendments may be allowed on just and reasonable terms, introducing any party who ought to have been joined as a plaintiff or defendant.

We note that the power to allow amendment should be freely exercised so that litigants may fully present their alleged cause or causes of action. (Roscoe Co. v. Lewis University, College of Law (1979), 79 Ill. App. 3d 1098, 398 N.E.2d 1083.) Despite this liberal policy, however, parties do not have an absolute right to amend their pleadings and the decision of whether to allow an amendment rests within the sound discretion of the trial court, considering the peculiar facts and circumstances of the case and the impact upon all the parties. Harris v. Algonquin Ready Mix, Inc. (1973), 13 Ill. App. 3d 559, 300 N.E.2d 824.

In the instant case, Henry first became aware during cross-examination of Rodney at the first trial that Wilhelm may have been advised to obtain a screen for the auger. Rodney’s testimony differed in key respects from the deposition testimony of his brother and father and tended to show that Wilhelm had knowledge that screen guards were available and should have been used. After discovering this information, the defendants acted promptly in moving for leave to file a third-party complaint against Wilhelm. Although Henry’s claim alleged a new theory, it ostensibly did not involve any additional evidence or witnesses. Moreover, we note that even though eight years had elapsed since the filing of the suit, nothing in the record indicates that the delay was chargeable to Henry. Under the circumstances, we find that the trial court abused its discretion in denying Henry’s motion to file a third-party complaint against Wilhelm for contribution.

Accordingly, while we affirm the jury’s verdict, we reverse the trial court’s decision denying Henry leave to file its third-party complaint. The cause is remanded for the limited purpose of allowing Henry to proceed against Wilhelm.

The judgment of the circuit court of Henry County is affirmed in part and reversed in part, and the cause is remanded for further proceedings consistent with this opinion.

Affirmed in part and reversed in part and remanded.

SCOTT, J., concurs.

PRESIDING JUSTICE HEIPLE,

dissenting:

Plaintiffs, Kevin and Debra Winter, filed a complaint on July 24, 1981, against defendants, Henry Service Company (Henry) and Mayrath Industries, Inc. (Mayrath), seeking damages for injuries Kevin suffered when his hand became caught in a bottom drive auger. The subject auger was manufactured by Mayrath and distributed by Henry. On June 23, 1989, following nearly eight years of discovery and a mistrial, defendants filed motions for leave to file a third-party complaint for contribution against Wilhelm Winter, Kevin’s father. The trial court denied defendants’ motions and the matter proceeded to trial. A jury subsequently found Henry 25% liable for Kevin’s injuries. Henry appeals the trial court’s denial of its motion to join Wilhelm Winter as a third-party defendant. The majority opinion reverses the trial court’s decision denying defendants’ motion. I dissent.

Section 2—406 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—406(b)) provides in pertinent part:

“(b) Within the time for filing his or her answer or thereafter by leave of court, a defendant may by third-party complaint bring in as a defendant a person not a party to the action who is or may be liable to him or her for all or part of the plaintiff’s claim against him or her.”

Section 2—616(a) of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—616(a)) further provides, in part, that “[a]t any time before final judgment amendments may be allowed on just and reasonable terms.” Although Illinois authority encourages liberal construction of the statute (Bloom v. Landy (1979), 72 Ill. App. 3d 383), parties have no absolute right to amend their pleadings. The decision to allow amendments is within the sound discretion of the trial court considering the facts and circumstances of a case and the impact on the parties involved, and such a decision will not be disturbed absent a clear abuse of that discretion. Ennis v. Illinois State Bank (1969), 111 Ill. App. 2d 71.

Henry contends that its motion was made in a timely fashion in response to the surprise testimony of Rodney Winter, Kevin’s brother. At the first trial in April 1989, Rodney testified that he advised his father, Wilhelm, that he should procure a screen guard for the auger intake screw. This testimony apparently contradicted the testimony of Kevin and Wilhelm, whose depositions had previously been taken, by indicating that Wilhelm knew or should have known a guard was available prior to Kevin’s accident and that he failed to obtain same. Rodney’s deposition was taken on June 7, 1989, after which time Henry requested leave to join Wilhelm. Henry maintains that it could not have anticipated Rodney’s contradictory testimony, especially considering the close family relationship among Kevin, Wilhelm and Rodney, and that it moved to join Wilhelm in a timely manner upon learning of Rodney’s story. The majority agrees, reasoning that defendants acted promptly in filing their motions after “discovering” the information revealed in Rodney’s deposition testimony, and determining that the trial court abused its discretion in denying Henry’s motion.

I do not agree that Henry acted in timely fashion. Depositions of Kevin and Wilhelm were taken in 1986, at which time both men testified that Rodney was present for conversations concerning the auger guard with Arlo Morley, a Henry Service Company representative. More than three years elapsed between the time Rodney was identified as a participant in discussions about obtaining a guard and the first trial. The essential facts regarding Rodney’s involvement were available to Henry no later than 1986, yet no effort was made to depose him prior to April 18, 1989. Such inattentiveness on Henry’s part cannot be attributed to “surprise” testimony on the date of trial. The trial court did not abuse its discretion in refusing to allow Henry to file its third-party pleading when Henry failed to adequately demonstrate an inability to obtain Rodney’s testimony and amend its pleadings at an earlier date. Accordingly, I dissent.


source: Caselaw Access Project

author: JUSTICE STOUDER

license: Public Domain

text:
      In re M.W. et al., Minors (Michael Walker et al., Appellants, v. The State of Illinois, Appellee).
    Third District
    No. 3—88—0089
    Opinion filed July 13, 1990.

      William Mack Anderson IV, of Peoria, and Joseph O’Donnell, of Ma-comb, for appellants.
    John R. Clerkin, State’s Attorney, of Macomb (Gary F. Gnidovec, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE STOUDER

delivered the opinion of the court:

Following hearings in the circuit court of McDonough County, the trial court entered a judgment terminating the parental rights of Virgil Zapplin, and appellants Michael and Sandra Walker. Michael Walker is the natural father of S.W. and'lJü.W Sandra Walker is the natural mother of S.W., M.W., and W.I. Virgil Harris Zapplin, the natural father of W.I., has never appeared in this case, was served by publication, and the termination of his parental rights is not at issue in the instant case. The trial court found inter alia that:

(1) the Walkers have exhibited extreme and repeated cruelty to the minors;
(2) the Walkers have failed to protect the minors from conditions within their environment injurious to the minor’s welfare; and
(3) the Walkers have shown an inability to discharge their parental responsibilities due to their mental retardation and mental impairment, respectively, and there is sufficient justification to believe their inability to discharge their parental responsibilities, particularly in light of the special needs of the minors, will extend indefinitely.

Based on these findings, the court appointed a guardian for the minors with the authority to consent to their adoption. The Walkers appeal.

On appeal, the issue is whether the State established by clear and convincing evidence that the Walkers are unfit to be parents. A trial court may appoint a guardian with the authority to consent to the adoption of a minor under section 2—29 of the Juvenile Court Act of 1987 (the Act) (Ill. Rev. Stat. 1989, ch. 37, par. 802—29), whenever it finds by clear and convincing evidence that a nonconsenting parent is unfit as defined in section 1(D) of the Adoption Act (Ill. Rev. Stat. 1989, ch. 40, par. 1501(1)(D)). The Adoption Act defines an “unfit person” as:

“[A]ny person whom the court shall find to be unfit to have a child, without regard to the likelihood that the child will be placed for adoption ***.” (Ill. Rev. Stat. 1989, ch. 40, par. 1501(1)(D).)

Section 1(D) of the Adoption Act then lists various specific grounds of unfitness. Those alleged in the instant case were: (1) extreme and repeated cruelty to the minors; (2) failure to protect the minors from conditions within their environment injurious to their welfare; (3) continuous and substantial neglect of the minors; and (4) that the Walkers are incapable of discharging their responsibilities as parents due to mental illness, mental retardation, or mental impairment.

It has been recognized that cases of this nature are sui generis; each must be decided in accordance with the particular facts of each individual and varying situation. (Perkins v. Breitbarth (1981), 99 Ill. App. 3d 135, 424 N.E.2d 1361.) Hence, in matters involving children and the possible permanent severance of parental rights, the facts must be reviewed with careful scrutiny. (Perkins v. Breitbarth (1981), 99 Ill. App. 3d 135, 424 N.E.2d 1361.) In addition, it is the settled law of this State that to justify termination of the rights of natural parents, their unfitness for the exercise of their parental rights must be established by clear and convincing evidence. (In re Drescher (1980), 91 Ill. App. 3d 658, 415 N.E.2d 636.) The reason for such a heavy burden of proof is obvious. “Termination of parental rights is as drastic and permanent an action as can be taken.” (Blakey v. Blakey (1979), 72 Ill. App. 3d 946, 947, 391 N.E.2d 222, 223.) While reviewing courts will not substitute their judgment for those of the trial court when the trial court’s judgment is clearly supported in the record, reversal is required where the trial court’s decision is contrary to the manifest weight of the evidence. (Peyla v. Martin (1976), 40 Ill. App. 3d 373, 352 N.E.2d 407.) After a meticulous scrutiny of the record, we find that the evidence presented by the State in the instant case fails to meet the heavy burden of proof. Accordingly, the trial court’s findings were against the manifest weight of the evidence.

The State initially filed petitions for adjudication of wardship of the minors, without requesting a. termination of parental rights. The petitions alleged that the minors were abused, their environment was injurious, the minors were possibly sexually abused, and that M.W. needed further medical evaluation of her physical and mental condition. These petitions were filed after M.W. exhibited unusual behavior in school and after the Department of Children and Family Services (DCFS) found the Walker home to be inadequately cleaned and the meals to be inadequately prepared. Following a hearing, the trial court found the minors to be abused and placed the minors in the temporary custody of DCFS. In addition, the court directed the Child Development Clinic at the University of Iowa Hospital to perform a developmental assessment of the family (the Iowa Report).

On November 26, 1986, following the filing of the Iowa Report, a supplemental petition to terminate the Walkers’ parental rights was filed. The petition’s allegations mirrored the allegations in the earlier petitions for adjudication of wardship. A hearing was held and the trial court entered an order terminating the Walkers’ parental rights.

We initially address the sexual abuse charge. The State presented the testimony of Dr. Randell Alexander of the University of Iowa. Dr. Alexander noted that his job is to determine if a child has been sexually abused and that in 99% of the cases he reviews he finds sexual abuse. However, Dr. Alexander testified that he could reach no definite conclusion of child abuse in the instant case. He stated that in his examination of these children, six months after they were removed from the Walker household, he found the abnormal scarring in the children’s vaginal areas to be consistent with a case of sexual abuse or other circumstance. Dr. Alexander, however, could not determine the cause of the scars.

The Walkers presented the testimony of their family pediatrician and a pediatrician who examined the children at the request of DCFS. The family pediatrician, Dr. An-Shin Lin, testified that he has attended to the children since 1984. Dr. Lin stated that the scarring around M.W.’s vagina was due to a severe diaper rash, complicated by a secondary staph infection. He also stated that the children did not exhibit unusual behavior in his examinations of them, and that if he had observed any unusual physical symptoms or behavior on the part of the children which would lead him to believe there was possible physical or sexual abuse, he would have contacted DCFS. In addition, the Walkers called to testify Dr. Jeffrey Hemp, a pediatrician who examined the children at the request of DCFS shortly after their removal from the Walker home. Dr. Hemp testified that M.W. was suffering from petit mall seizures which led to her unusual behavior in school. Dr. Hemp also noted that he found no evidence of sexual abuse and that the children did not react unusually during his examination of them.

The Iowa Report also contained allegations of sexual abuse. However, Marcia Heitz, a DCFS investigator who worked in conjunction with the University of Iowa doctors, testified that the only way she was able to obtain evidence of sexual abuse from the children was to ask leading questions. The record contains a dialogue between attorney William Anderson and W.I. illustrating the inability of W.I. to answer truthfully. During this dialogue, in response to completely fictitious questions, W.I. states that she remembered when the court reporter gave her baths and the time that attorney Anderson spanked her for fighting with her sister. The trial court recognized that the children were incapable of giving a truthful statement. Thus, it appears the trial court found Dr. Alexander’s testimony to sufficiently support the sexual abuse charge.

After carefully reviewing Dr. Alexander’s testimony, however, we find it to be inconclusive. Dr. Alexander indicated that the vaginal scars may have been the result of sexual abuse, but he could not reach a conclusion. Moreover, in opposition to Dr. Alexander’s inconclusive testimony, the Walkers presented the definite testimony of two physicians. These two physicians, Dr. Lin and Dr. Hemp, similarly concluded that the vaginal scarring was not caused by sexual abuse. Given this finding, coupled with the fact that the children did not demonstrate the ability to testify truthfully, we find the evidence in the record to be insufficient to support the sexual abuse charge.

We also find the evidence to be insufficient to support the other charges brought against the Walkers. We note that the children were initially removed from the Walker household after the trial court found the home to constitute an environment injurious to their welfare. The trial court found the home to be unclean and nutritious meals to be inadequately prepared. Since that time, however, Sandra Walker has enrolled in parenting classes in order to improve her homemaking skills. The record also indicates that Sandra has made significant improvements in her homemaking skills and that her in-home counselor recommends the return of the children into the home. Accordingly, we find that the State failed to prove that the home constitutes an environment injurious to the children’s welfare by clear and convincing evidence.

The State also failed to prove by clear and convincing evidence that the Walkers’ alleged mental condition was such that it would extend beyond a reasonable time. Section l(D)(p) of the Adoption Act provides the standard for finding a parent unfit based upon mental disabilities:

“[Ijnability to discharge parental responsibilities supported by competent evidence from a psychiatrist or clinical psychologist of mental impairment, mental illness or mental retardation *** and there is sufficient justification to believe that such inability to discharge parental responsibilities shall extend beyond a reasonable time period.” Ill. Rev. Stat. 1989, ch. 40, par. 1501(D)(p).

The Iowa Report indicates that Sandra had a full scale IQ of 75 and that Michael had a full scale IQ of 68. According to the Iowa report, Sandra is of low average intelligence and Michael is slightly retarded. Dr. Alexander predicted that it would be impossible for Michael to improve his reading ability. However, Ms. Charlotte Fayhee, Michael’s reading teacher, testified that in the year between the production of the Iowa Report and the dispositional hearing Michael had attained a second-grade reading level and that, in her opinion, he has not shown any indication of reaching the limit of his learning ability. In addition, little evidence was adduced showing that either Sandra or Michael Walker had a medically diagnosed mental impairment which would extend beyond a reasonable time period.

Dr. James Tiller testified for the State to the effect that the Walkers’ low IQ and lack of parenting skills were so great that they necessitated the termination of parental rights. Dr. Tiller further noted that he has recommended in the past that parental rights not be terminated and the children be returned to the parents. In the instant case, however, Dr. Tiller stated that the difference here is Michael’s alleged alcohol problem. We note, significantly, that the trial court found this alcoholism charge against Michael Walker to be baseless.

Therefore, because there was no proof of an alcoholism problem, and little evidence of the Walkers’ having mental impairments, we find that the State failed again to meet its burden of proving by clear and convincing evidence that the parents had mental inabilities sufficient to prevent them from discharging a parent’s normal responsibilities.

In addition, we find the evidence of the parents’ willingness to partake in the parenting and counseling programs significant. Although the State did not allege in its petition that the Walkers’ parental rights should be terminated due to their failure to make reasonable efforts to correct the conditions which were the basis of the removal of the children from them (see Ill. Rev. Stat. 1989, ch. 40, par. 1501(1)(D)(m)), it is readily apparent that the legislature considers this to be a significant factor in cases such as this. The efforts of the parents to carry out their responsibilities, rather than the success of such efforts, should be considered in determining the correctness of a finding that a parent is unfit to exercise parental rights. (In re Drescher (1980), 91 Ill. App. 3d 658, 415 N.E.2d 636.) Indeed, it has been held that the statute requires proof of a failure to make reasonable progress in order to support a finding of unfitness. (In re Austin (1978), 61 Ill. App. 3d 344, 378 N.E.2d 538.) Whether or not a parent has made “reasonable progress” toward the return of the children during the time the children are removed from the parental home, and in order to determine whether reasonable progress has been made, the court should consider the situation which triggered the children’s initial removal as a bench mark for measuring such reasonable progress. In re Bennett (1980), 80 Ill. App. 3d 207, 399 N.E.2d 735.

In the instant case, since March of 1986, the Walkers have attended the STEP (Systematic Training for Effective Parenting) program. Jean Whitehead, a counselor hired through DCFS, stated that she had rendered services in the Walker household over many months and that in that period of time the home had been transformed into a neat and clean home which would provide a good home for the minors. Whitehead further recommends that the minors be returned home. The Walkers also attended counseling as recommended by DCFS until the counselor cancelled the remaining counseling sessions against the wishes of the Walkers. More importantly, since the time the initial charges were brought, the Walkers have made reasonable and arguably significant progress. In addition, Michael’s co-workers and supervisor at work testified as to his concern for the children. They essentially related that Michael took substantial amounts of time off of work in order to be present at the scheduled visitations with his children and that Michael always expressed his concern for their well-being. We believe it would further the legislature’s intent by rewarding those who willingly partake in such programs. Accordingly, we find the evidence of the parents’ willingness to partake in the aforementioned programs to constitute a sufficient refutation of the State’s grounds for a finding of unfitness.

For these reasons, we reverse the judgment of the circuit court of McDonough County terminating the parental rights of Michael and Sandra Walker and remand this case for proceedings consistent with this opinion.

Reversed and remanded.

BARRY and SCOTT, JJ., concur.


text:
    CYNTHIA CRYSTAL DALLINGER, a Minor, by David Dallinger, Parent and Next of Kin, Plaintiff-Appellant, v. MARTHA C. ABEL, as Trustee, Defendant-Appellee.
    Third District
    No. 3—89—0545
    Opinion filed July 6, 1990.

      Kerry R. Cordis, of Princeville, and Michael E. Brandt, of Peoria, for appellant.
    Black, Black & Brown, of Washington (Kenneth L. Black, of counsel), for appellee.
   JUSTICE STOUDER

delivered the opinion of the court:

The plaintiff, Cynthia Crystal Dallinger, a minor, by her parent and next of kin David E Dallinger, brought this action against the defendant, Martha C. Abel, as trustee of a certain trust established by Paul R. Dallinger. The plaintiff sought a declaratory judgment and an accounting. The circuit court denied the plaintiff’s motion for summary judgment, granted the defendant’s motion for summary judgment on the count of the complaint seeking a declaratory judgment, and dismissed the count of the complaint seeking an accounting. The plaintiff appeals all these rulings. We reverse and remand.

Paul R. Dallinger (settlor) executed a declaration of trust on November 15, 1978. The eleventh and final article of that instrument stated:

“I reserve the right from time to time during my life so long as I own the entire interest in the trust to amend or revoke this agreement; but in the event a Participating Trust Certificate is held by anyone other than myself, any amendment of this agreement shall require the unanimous consent of each beneficiary.”

On November 30, 1978, before any participating trust certificates had been issued, the settlor executed an amendment to the declaration of trust. That amendment changed only the fourth article of the declaration of trust, explicitly leaving all other provisions in full force and effect. As amended, the fourth article in relevant part stated:

“Upon my death:
A. The trustee shall make the payments provided in subparagraph B of this paragraph and shall divide the remaining principal and any accrued or undistributed income of the trust into equal shares, one share for each grandchild of mine who survives me and one share for the descendants who survive me of each grandchild of mine who predecease [sic] me.”

From time to time starting in December 1978, the settlor distributed participating trust certificates to the three daughters of the settlor’s daughter, Martha C. Abel. On October 9, 1981, the plaintiff was bom, the fourth grandchild of the settlor. In January 1982, the settlor distributed more participating trust certificates to his three granddaughters by his daughter (hereinafter the favored grandchildren).

On March 26, 1982, the settlor executed an instrument entitled “Second Amendment to Declaration of Trust,” which purported to amend the settlor’s declaration of trust of November 15, 1978, as amended November 30, 1978. That instrument purported to amend only the fourth article, by substituting the names of the favored grandchildren in place of the more general language, “each grandchild of mine,” and making slight changes in language to accommodate the new arrangement. The settlor at no time obtained the consent of any of his grandchildren to amend the terms of the trust.

From time to time from January 1983 to January 1986 the settlor continued giving participating trust certificates to the favored grandchildren, and also gave some to Martha C. Abel. At no time did the settlor give any participating trust certificates to the plaintiff. The settlor died on May 6,1986.

The circuit court construed the word “beneficiary” in the eleventh article of the declaration of trust to mean any holder of a participating trust certificate. While the plaintiff disputed this issue in the circuit court, she has conceded the point on appeal. The issue left for us to resolve is whether the instrument executed by the settlor on March 26, 1982, validly amended the terms of the trust, despite the fact that the holders of the participating trust certificates outstanding at that time did not consent to that amendment.

It is elementary that if the method of exercising a power of modification is described in the trust instrument, the power can be asserted only in that manner. (Parish v. Parish (1963), 29 Ill. 2d 141, 149, 193 N.E.2d 761, 766.) In Williams v. Springfield Marine Bank (1985), 131 Ill. App. 3d 417, 475 N.E.2d 1122, this rule was applied where the trust instrument permitted amendment by the settlors, the appellate court holding that an attempted amendment by only one settlor, after the other had died, was invalid. In Northwestern University v. McLoraine (1982), 108 Ill. App. 3d 310, 438 N.E.2d 1369, this rule was applied where the settlor had neglected to follow the terms of the trust which required for an amendment only that the settlor put the amendment in writing, sign it, and deliver it to the trustees during the settlor’s lifetime. The Restatement (Second) of Trusts contains the following comment that is on point:

“If the settlor reserves a power to modify the trust only with the consent of one or more of the beneficiaries, or of the trustee, or of a third person, he cannot modify the trust without such consent.” Restatement (Second) of Trusts §331, Explanatory Notes, comment e, at 144 (1959).

The defendant argues that this rule of law must “yield to reason,” and that this court ought to fashion an exception to it in this case. The defendant seeks to distinguish cases employing this rule of law as involving some measure of uncertainty as to the settlor’s intent, whereas the intent of the settlor in this case was clearly to have the trust benefit only the favored grandchildren, to the exclusion of the plaintiff. The defendant argues that since the instrument of March 26, 1982, would have amended the terms of the trust in a manner clearly beneficial to the favored grandchildren, the only holders of participating trust certificates at that time, their act of consenting to the proposed amendment would have been a mere technicality and a ceremonial act, and so should not be required.

Both the defendant and the circuit court cited Bieley v. Bieley (Fla. Dist. Ct. App. 1981), 398 So. 2d 932, for the reasoning therein. However, that case differed from the instant case in significant respects. It involved the question of whether in a divorce proceeding a trial court could amend the terms of an irrevocable trust, the income beneficiary of which was a child of the divorcing couple, where the amendment diminished the couple’s reversionary interest in the corpus of the trust in order to provide for the child’s educational expenses. The district court of appeal of Florida stated in that opinion that since the child was to be benefited by the amendment ordered by the lower court, the child’s consent to the amendment was not required. The instant case does not involve any court action to amend the terms of the trust. The instant case does not involve the settlor giving up privileges or rights in the trust. The instant case involves a party, other than the settlor, whose interest in the trust would be diminished by the amendment. The two cases are simply not comparable.

The defendant cites a number of other cases from other States to bolster her position. None of those cases is sufficiently similar to the instant case to be of help here. Almost all of those cases involve situations where the settlors of trusts sought to relinquish reversionary interests or other rights or privileges they had under the trusts. Against the charge that the settlors could not do that without the consent of the beneficiaries, the courts upheld the settlors’ actions. Such cases are easily distinguishable from the instant case.

Where the terms of a trust require someone to consent to amendment of those terms, to excuse the lack of that consent simply on the basis that the person whose consent is required would derive benefit from the amendment would create enormous potential for abuse. We shall not inquire into a settlor’s purpose in requiring someone’s consent to a trust’s amendment. Whatever might have been the settlor’s purpose in requiring such consent is beside the point: so long as the settlor required such consent, such consent will be required by the law. Therefore, we hold that the instrument of March 26, 1982, was ineffective in amending the trust since the holders of the participating trust certificates never consented to the amendment.

Accordingly, we reverse the summary judgment in favor of the defendant, we reverse the dismissal of the accounting count of the complaint, we reverse the denial of the plaintiff’s motion for summary judgment as regards the declaratory judgment count of the complaint, we vacate the denial of the plaintiff’s motion for summary judgment as regards the accounting count of the complaint, and we remand this cause for further proceedings not inconsistent with this disposition.

Reversed and remanded.

HEIPLE, P.J., and SCOTT, J., concur.


author: JUSTICE STOUDER JUSTICE BARRY,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KEVIN ROUSER, Defendant-Appellant.
    Third District
    No. 3—89—0609
    Opinion filed July 5, 1990.

      BARRY, J., dissenting.
    Peter A. Carusona, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Edward Burmila, State’s Attorney, of Joliet (Michael C. Rolinski and John X. Breslin, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE STOUDER

delivered the opinion of the court:

Following a bench trial, the court convicted the defendant, Kevin Rouser, of unlawful possession of a controlled substance with the intent to deliver (Ill. Rev. Stat. 1987, ch. 56½, par. 1401(c)). The court thereafter sentenced him to six years’ imprisonment. The defendant appeals.

The record shows that on August 8, 1988, undercover police officer Robert Glynn went to a residence at 1032 Charlesworth in Joliet with another man. Glynn gave the man $250 in marked money and the man went into the residence to purchase cocaine. The man subsequently came out with a bag containing a substance appearing to be cocaine.

Later that day, police officers returned to the residence with a search warrant. They knocked on the door, identified themselves, and announced their intentions. After waiting one minute, they entered the house and observed two men in a bathroom, with a third exiting the bathroom. When the third man saw the officers, he ran back into the bathroom and attempted to close the door. As the officers struggled to open the door, they heard the toilet flush. After forcing their way in, they saw the men shuffling around. They thereafter recovered .3 grams of cocaine from an open clothes hamper in the bathroom, along with another packet, the contents of which were not analyzed. They also found a pipe used for smoking marijuana or cocaine. In the kitchen, they found a bottle of grain alcohol, two steel rods, and a test tube, all of which were items used in free-basing cocaine. Items used in cutting and packaging cocaine for sale were also found in the kitchen. Small amounts of cannabis were found in the kitchen and a bedroom.

Although numerous documents, including the rental agreement for the residence, were in another party’s name, documents belonging to the defendant were also recovered in the house. Among these was a social security card application on which the defendant had listed 1032 Charlesworth as his mailing address. $850 in cash, including the marked $250 Officer Glynn had used in the earlier purchase, was found in the unemployed defendant’s pocket.

On appeal, the defendant initially argues that the State failed to prove beyond a reasonable doubt that he possessed the cocaine found in the clothes hamper.

To support a conviction for unlawful possession of a controlled substance, the State must prove that the defendant had knowledge of the substance and that it was under his immediate and exclusive control. (People v. Strong (1986), 151 Ill. App. 3d 28, 502 N.E.2d 744.) The possession may be constructive, and the rule that possession must be exclusive does not mean that possession may not be joint. (People v. Burke (1985), 136 Ill. App. 3d 593, 483 N.E.2d 674.) When narcotics are found in an area under the defendant’s control, that fact gives rise to an inference that the defendant had knowledge and control of the narcotics, absent other facts and circumstances which might leave a reasonable doubt as to the defendant’s guilt. (People v. Wiley (1988), 174 Ill. App. 3d 444, 528 N.E.2d 26.) Knowledge and control of narcotics are questions of fact for determination by the trier of fact, and its decision will not be disturbed unless the evidence is so palpably contrary to the verdict, or so unreasonable, improbable, or unsatisfactory, as to create a reasonable doubt of guilt. (People v. Strong (1986), 151 Ill. App. 3d 28, 502 N.E.2d 744.) In making this determination, the reviewing court will examine the evidence in the light most favorable to the prosecution, and the relevant question is whether any rational trier of fact could have found the defendant guilty beyond a reasonable doubt of the charged crime. People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267.

In the instant case, the defendant was in the bathroom, only IV2 feet from the open hamper containing the cocaine. The activities in the bathroom were such that a reasonable person could conclude that the defendant and the other men were disposing of illegal drugs. Despite having flushed the toilet, the men in the bathroom were still shuffling about as the police entered. Again, a reasonable person could conclude that their actions were due to their knowledge that they had not disposed of all the illegal drugs. In sum, we find that a rational trier of fact could have concluded that the defendant was proved guilty beyond a reasonable doubt of possessing the cocaine.

The defendant next argues that the State failed to prove beyond a reasonable doubt that he possessed the cocaine with the intent to deliver.

Whether an individual possesses a controlled substance with the intent to deliver is not always subject to direct proof. (People v. LeCour (1988), 172 Ill. App. 3d 878, 527 N.E.2d 125.) A reasonable inference of intent is permitted when the amount of the contraband possessed could not be viewed as designed for personal consumption. (People v. Marshall (1988), 165 Ill. App. 3d 968, 521 N.E.2d 538.) Other factors may also support or enhance the inference that narcotics were possessed with the intent to deliver, namely, the possession of a combination of drugs, the manner in which they were kept, the presence of paraphernalia used in the sale of drugs, the discovery of a large amount of cash, and the existence of weapons. (People v. Schaefer (1985), 133 Ill. App. 3d 697, 479 N.E.2d 428; People v. Friend (1988), 177 Ill. App. 3d 1002, 533 N.E.2d 409.) A reviewing court will not substitute its judgment for that of the trial court unless the inference of the trier of fact is inherently unreasonable. People v. Schaefer (1985), 133 Ill. App. 3d 697, 479 N.E.2d 428.

Here, the trial court’s statements in finding the defendant guilty indicated that it believed the defendant did not have constructive possession of the house, but only of the bathroom. Accordingly, the drugs and drug paraphernalia found in other parts of the house were largely irrelevant in determining whether the defendant was proved guilty beyond a reasonable doubt of possession with intent to deliver. Further, the pipe found in the bathroom would indicate the drugs were for personal consumption rather than for sale. While the defendant possessed the $250 in marked money, the State never presented any evidence that the substance purchased earlier in the day actually was an illegal drug. Additionally, no evidence was presented that the defendant had anything to do with the sale of that substance. In fact, the only thing the State directly proved was that the defendant possessed a large amount of cash and a tiny amount of cocaine. Under these circumstances, we find that the trial court stretched the limited circumstantial evidence beyond a reasonable inference.

Accordingly, pursuant to our authority under Supreme Court Rule 615(b)(3) (107 Ill. 2d R. 615(b)(3)), we reduce the degree of the defendant’s offense to unlawful possession of a controlled substance (Ill. Rev. Stat. 1987, ch. 56½, par. 1402(b)). We remand the cause to the circuit court of Will County for resentencing based on that offense.

Reduced and remanded.

SCOTT, J., concurs.

JUSTICE BARRY,

dissenting:

In my opinion, the majority gives lip service to the appropriate standard of review and the law respecting the factors that support or enhance the inference that narcotics áre possessed with the intent to deliver. But, in reversing defendant’s conviction, the majority does a disservice to those principles recited.

The trial court found the residence at 1032 Charlesworth to be a “drug house” — that is, a residence in which the unlawful procurement, delivery and/or use of controlled substances is tolerated by the owner(s), tenant(s), resident(s) and/or their agents or guests. The record on appeal certainly supports that determination.

Shortly after an undercover officer purchased a white powdery substance alleged to be cocaine at 1032 Charlesworth, police officers returned to the house with a search warrant and found defendant and others busy in and about the bathroom near a flushing toilet and a hamper containing a packet of cocaine. Defendant had $850 in his jeans pocket, and- testimony at trial indicated that defendant was neither currently nor recently employed. $250 of this money was the marked money used by the undercover officer for the earlier purchase. A further search of the house revealed documentation of defendant’s relationship with the residence and its leaseholder, Kim Cherry. It also revealed drug paraphernalia in plain view. To hold under these circumstances that the evidence of defendant’s intent to deliver was so unreasonable, improbable or unsatisfactory as to create a reasonable doubt is blinking reality.

It appears that the majority has chosen to reject as circumstantial evidence of defendant’s “intent to deliver” all evidence beyond the area of the flushing toilet where defendant was found “shuffling” around when the police gained entry into the house. I am aware of no rule of law that requires a finding that defendant possessed, constructively or otherwise, every item of circumstantial evidence of his guilt. The trial court was satisfied on the basis of evidence properly admitted-including two packets of white powdery substance in the hamper, $250 in marked bills and $550 more in unexplained cash in defendant’s jeans, paraphernalia for free-basing cocaine in the bathroom and in plain view in the kitchen, defendant’s furtive activity near the flushing toilet, the prior drug transaction at the house, and documentation of defendant’s relationship to the residence and its lessee — that defendant was guilty of the offense of possession with the intent to deliver. While another trier of fact may have found otherwise, it bears repeating that it is not our purview to retry defendant, but rather to determine whether, after viewing all of the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia (1979), 443 U.S. 307, 319,, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789; People v. Young (1989), 128 Ill. 2d 1, 538 N.E.2d 453; People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267.

In this case, as the trial court stated, circumstantial evidence of defendant’s guilt was “overwhelming.” Applying the appropriate standards to our review of the evidence, a reasonable inference is that defendant did, indeed, possess cocaine with the intent to deliver, and not as a mere casual user. I would affirm the judgment of the circuit court of Will County.


author: JUSTICE SCOTT

text:
    THE DEPARTMENT OF TRANSPORTATION ex rel. MOLINE CONSUMERS COMPANY, Plaintiff-Appellant and Cross-Appellee, v. AMERICAN INSURANCE COMPANY, Defendant-Appellee and Cross-Appellant.
    Third District
    No. 3—89—0390
    Opinion filed July 6, 1990.

      Joseph F. Fackel, of Van Hooreweghe, Fackel & Thuline, of Moline, and Linn C. Goldsmith, of Boyle, Goldsmith, Shore & Bolin, of Hennepin (Walter Durley Boyle, of counsel), for appellant.
    Mohan, Alewelt, Prillaman & Adami, of Springfield (Paul E. Adami, of counsel), for appellee.
   JUSTICE SCOTT

delivered the opinion of the court:

Plaintiff, Moline Consumers Company, is a partially unpaid ($51,678.24) supplier of a subcontractor on a public project. Defendant, the American Insurance Company, is the surety upon the performance and payment bond. After a bench trial, judgment was entered for plaintiff in the amount of $16,024.62, without interest. The trial judge disallowed $35,653.62 of the amount admittedly due plaintiff from the subcontractor on the theory that plaintiff had prejudiced the surety, passing up an opportunity to intercept that amount out of the stream of payments from the contractor to the subcontractor. Plaintiff appeals. We reverse this determination, as well as that part of the judgment below denying interest. Defendant, as assignee of the subcontractor, cross-appeals from the judgment below denying its counterclaim based upon a brief delay by plaintiff in having material available for the project. That part of the judgment below is affirmed. The facts follow.

In March of 1984, S.J. Groves & Sons Company (Groves) was awarded a contract by the Illinois Department of Transportation (IDOT) to prepare a road bed in advance of paving work on State Route 34 between Galesburg and Monmouth in Warren County, Illinois. The American Insurance Company (American) was surety on the bond ($6,944,147.23) required by section 1 of the contracts for public works statute (Ill. Rev. Stat. 1987, ch. 29, par. 15). That statute requires the principal (Groves) and the surety (American) to agree, among other things, that the just claims of suppliers to subcontractors will be paid. For an extensive discussion of this statutory-provision, see Housing Authority ex rel. Smith-Alsop Paint & Varnish Co. v. Holtzman (1970), 120 Ill. App. 2d 226, 235-40, 256 N.E.2d 873, 877-80; see also Decatur Housing Authority v. ChristyFoltz, Inc. (1983), 117 Ill. App. 3d 1077, 1079, 454 N.E.2d 379, 383.

In early May of 1984, Groves employed Robert Harris, d/b/a Harris Construction (Harris), to furnish rock and porous granular material for the project. Harris, as a disadvantaged, or minority, enterprise, met certain State of Illinois requirements enabling Groves to go forward with the work. About this same time, Groves loaned Harris $15,500 for start-up expenses.

In late May of 1984, Harris issued a purchase order to plaintiff, Moline Consumers Company (Moline), of a little over $1 million for the purchase of rock and porous granular material.

The work began. Moline had a stockpile of stone, rock, and granular material. Harris supplied trucks and drivers. Each week Groves, Harris and Moline would reconcile the amount of material that had been delivered to the jobsite. Each month Moline would bill Harris, Harris would bill Groves, who, in turn, would bill IDOT. Moline expected its invoices to be paid within 30 days of the date of billing. There was no written agreement between Harris and Moline other than a description on the purchase order of price and quantities. The billing statements from Moline to Harris included advice that interest at the rate of 18% per annum was payable on past-due accounts.

There was a period of a little over two weeks’ around October 1984 when IDOT representatives halted delivery of rock for having too many “fines,” small pieces. Moline took steps to cure this problem and deliveries resumed. During this time, Harris had a separate subcontract to put up fence along the right-of-way on the interstate that was being built.

Later in 1984, and more acutely in 1985, the Harris payments to Moline were delayed and past-due invoices accumulated. Groves responded to a Moline complaint by setting up a meeting between Groves, Harris and Moline for Saturday morning, September 21, 1985, in Monmouth. Harris had been assisted throughout the project by James Schuster, an attorney -with expertise in the representation of minority business enterprises, and he attended the meeting on behalf of Harris. No other lawyers were present. Groves came to the meeting with a check payable to Harris for about $129,000, the amount Groves then owed Harris, and sought to have Harris and Moline agree on how it would be divided. Harris suggested that Moline have $50,000, at the most, $60,000. Moline responded that it was owed about $94,000 by Harris via past-due invoices and should be paid at least that amount. Additionally, about a week before this meeting, Moline had billed Harris $111,696.14, due October 13, 1985, for rock furnished in August and through September 5.

Groves advised the other parties that the amount it owed Harris by reason of the last Moline billing ($111,696.14) would only be a little over $68,000, hence there would be a shortfall of over $43,000, even if Moline took the whole $129,000. Apparently, at this time Harris needed some $20,000 to keep its workers’ compensation insurance in force and, absent a substantial payment, would go out of business entirely.

At trial, the Moline representative denied ever actually seeing the check. A Groves witness stated it had been exhibited to all parties. The Groves representative viewed his obligation as only to make payments to Harris because Groves had no contractual relationship with Moline. A memorandum of what happened at this meeting prepared by Groves, dated September 23, 1985, states that the check for a little over $129,000 payable to Harris was given to the Harris accountant with an understanding that Harris would issue a check for about $94,000 to Moline the following Monday, September 23, 1985; that, in fact, was done.

The Groves representative testified at trial that he urged Moline to take the whole check although that version of the meeting does not appear in the above Groves memorandum prepared contemporaneously with the transaction. Moline’s position is that it could not have insisted on taking more than the approximate $94,000 paid after the meeting because the above invoice for $111,696.14 recited on its face that it wasn’t due until October 13.

The Groves memorandum of September 23, 1985, includes a statement that everyone understood that Groves would closely monitor future payments to insure that all monies due from Harris to Moline would be paid. Other sources of funds that might be available to Harris discussed on September 21, 1985, included the fence-building project and utilization of Harris’ equity in the trucks for bank financing. It is unclear whether Moline knew in the fall of 1985 that Groves had loaned Harris over $15,000 for start-up expenses and that the sum would be deducted at the end from amounts paid by Groves to Harris.

By December of 1985, it was apparent that Harris would lose money on the whole project, including the fence work; further, there would be no bank financing. On December 20, 1985, the Harris attorney wrote to Moline advising that they would continue to try and arrange financing in order to pay Moline “the money that is currently owed.” Harris also directed Groves to make future checks due Harris payable to both Harris and Moline.

Harris did not mention in the September meeting, or at any other time prior to litigation, any claim of offset, or counterclaim, against Moline attributable to the approximate two-week stoppage of rock hauling in October 1984.

Groves next cancelled the subcontract with Harris, Moline attempted to enforce a mechanic’s lien and Harris went through a chapter 7 bankruptcy. Moline’s mechanic’s lien action failed because by then Groves owed no money to Harris. Moline then filed the instant action against American based upon the bond described above.

American asserted as an affirmative defense that the failure of Moline to take the whole $129,113.43 on September 21, 1985, was prejudicial to it, that it should be given a credit for the $35,653.62 difference ($129,113.43 less $93,459.81 equals $35,653.62). Additionally, after obtaining an assignment of a claim of damages for the work stoppage in October 1984 from Harris, American counterclaimed for a setoff of about $17,000. The trial judge disallowed American’s counterclaim but allowed its affirmative defense. Judgment was entered for Moline in the amount of $16,024.62, without interest.

The issue is whether Moline’s conduct at the September 21, 1985, meeting may be treated as “affirmative action” operating to the prejudice of American. In People v. Whittemore (1912), 253 Ill. 378, the court stated:

“All that a surety has a right to require of his creditor *** is, that no affirmative act shall be done that will operate to his prejudice.” (People v. Whittemore (1912), 253 Ill. 378, 382.)

In Griffin Wellpoint Corp. v. Engelhardt, Inc. (1980), 92 Ill. App. 3d 252, 414 N.E.2d 941, a supplier did not insist on or demand prompt payment of invoices; it accepted a note and extended the time of payment, the note reciting a reservation of rights in favor of the supplier. The surety had no notice of any of these matters; its argument that it should be released pro rata was rejected.

The law is well settled that a supplier in Moline’s position who gives a lien waiver is later precluded, to the extent of the waiver, from being paid by the surety on the bond obligation. (William Aupperle & Sons, Inc. v. American Indemnity Co. (1979), 75 Ill. App. 3d 722, 394 N.E.2d 725.) In Alexander Lumber Co. v. Aetna Accident & Liability Co. (1921), 296 Ill. 500, the principal issue was whether a lumber company seeking to recover on the bond of the building contractor could apply payments received on earlier indebtedness involving other projects. However, as an additional basis for its decision, the court pointed out that the lumber company, having gone to Springfield for the purpose of filing a lien, refrained for a time from doing so at the request of a bank. This “affirmative” action by the creditor resulted in a pro rata credit in favor of the surety. The statement made by the court:

“[Wjhere a creditor releases or permits to be lost a security for a debt, other sureties are thereby released to that extent.” Alexander Lumber Co. v. Aetna Accident & Liability Co. (1921), 296 Ill. 500, 509.

The argument of Moline is that it only achieved payment of almost $94,000 through hard bargaining during the September 21, 1985 conference. Groves made no unconditional offer of the $129,000 to Moline. It is of some significance that in December of 1985, Harris agreed to the inclusion of Moline’s name on any future checks from Groves to Harris. It is also apparent that even if Moline had been given the whole $129,000, there would still have been a shortfall of about $43,000 attributable to Moline’s invoice of $111,696.14, due October 13, 1985. Accordingly, the maximum “credit” that might have been given American was only about $8,000. We are unable to fault Moline’s conduct at the September 21, 1985, meeting.

We turn next to American’s counterclaim. All of the rock and porous granular material supplied by Moline to Harris was accepted. Although an IDOT inspection resulted in a delay in rock hauling for about two weeks, IDOT didn’t require that rock previously delivered be removed or not utilized. The initial purchase order by Harris to Moline is silent as to what might happen if there were a delay in the availability of rock. Nothing in the conduct of these parties in 1984 and 1985 suggests that Moline had any inkling that Harris might assert any offset against Moline attributable to the October 1984 delay. Only after litigation did Harris counterclaim on the theory that Harris drivers and equipment sat idle for over two weeks. The only significant evidence offered on the counterclaim was deposition testimony of the Harris attorney that he did an earlier computation respecting losses in gross revenue attributable to the idle time based on telephone reports to him by his client. Notes of the attorney and the records of Harris had been lost at the time of the trial. The trial judge was of the view that Harris had been damaged but he had no way of ascertaining how much. Equally important is the circumstance that in September and December of 1985, Harris unconditionally acknowledged its obligation to Moline without any reference to offset or counterclaim. The judgment of the court below dismissing American’s counterclaim must be affirmed.

Section 2 of the Interest Act (Ill. Rev. Stat. 1987, ch. 17, par. 6402) states that creditors shall be allowed interest at 5% per annum for all monies due on any bond or other writing or on a settlement of accounts. The statute is clearly applicable. Here the amount due, $51,678.24, was never in dispute except for the above affirmative defense and counterclaim. It is sufficient that this is a suit on a bond and that the money is due. (County of Will v. Woodhill Enterprises, Inc. (1971), 4 Ill. App. 3d 68, 274 N.E.2d 476; Capital Development Board ex rel. P.J. Gallas Electrical Contractors, Inc. v. G.A. Rafel & Co. (1986), 143 Ill. App. 3d 553, 493 N.E.2d 348.) In Griffin Wellpoint Corp. v. Engelhardt, Inc. (1980), 92 Ill. App. 3d 252, 414 N.E.2d 941, the court required that prejudgment interest accrue only from the date the action was commenced. Here that would be July 1, 1986. See also Bigelow-Liptak Corp. v. Mazzucco Construction Co. (1972), 4 Ill. App. 3d 90, 280 N.E.2d 276.

Moline is entitled to interest at 5% per annum on $51,678.24 computed from July 1, 1986, until the entry of judgment. This cause is remanded with instructions to enter a judgment for the correct amount owing, namely $51,678.24, plus interest. The judgment below draws interest at the rate required by section 2—1303 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2—1303). Interest on the judgment as increased will be computed from the date of filing this opinion. Owens v. Stokoe (1988), 170 Ill. App. 3d 179, 524 N.E.2d 755.

Reversed in part; affirmed in part and remanded.

BARRY and STOUDER, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LEVI Q. BLAKE, Defendant-Appellant.
    Third District
    No. 3—89—0301
    Opinion filed June 25, 1990.
    Modified on denial of rehearing August 8, 1990.
    HEIPLE, P.J., dissenting.
    Thomas A. Lilien, of State Appellate Defender’s Office, of Elgin, for appellant.

      Kevin W. Lyons, State’s Attorney, of Peoria (Rita Kennedy Mertel, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE STOUDER

delivered the opinion of the court:

The defendant, Levi Q. Blake, appeals from his conviction for armed robbery (Ill. Rev. Stat. 1987, ch. 38, pars. 18— 1, 18—2).

At the defendant’s first trial, the jury found the defendant guilty of home invasion, armed robbery and residential burglary. The trial court entered a judgment of conviction for home invasion. On appeal, this court reversed and remanded the cause for a new trial, finding that the trial court erred in refusing to give the defendant’s tendered instruction on necessity. People v. Blake (1988), 168 Ill. App. 3d 581, 522 N.E.2d 822.

On retrial, the jury acquitted the defendant of home invasion and convicted him of armed robbery and residential burglary. The trial court entered judgment on the verdicts. Following denial of post-trial motions, the trial court vacated the judgment of conviction for residential burglary. The defendant was sentenced to 12 years in prison on the armed robbery conviction.

On appeal, the defendant contends his conviction must be reversed because the State failed to prove all the elements of armed robbery beyond a reasonable doubt. The facts are adequately set forth in the disposition of the defendant’s first appeal, and only those facts necessary to reach our decision will be presented.

Armed robbery is the taking of property from the person or presence of another by the use of force or by threatening the imminent use of force while armed with a deadly weapon. (Ill. Rev. Stat. 1987, ch. 38, pars. 18—1, 18—2.) To sustain a charge of armed robbery, it is essential that the robber use violence or fear of violence as the means to take property in the control of the victim. (People v. Tiller (1982), 94 Ill. 2d 303, 447 N.E.2d 174.) The presence requirement of the robbery statute relates to the property taken; it must have been in the presence or control of the victim. (People v. Smith (1980), 78 Ill. 2d 298, 399 N.E.2d 1289.) The test for “presence” is whether the victim’s proximity or control over the property was so close that he could have prevented the taking if he had not been subjected to force or the threat of force by the robber. People v. Braverman (1930), 340 Ill. 525, 173 N.E. 55.

In the instant case, the defendant’s conviction is premised on accountability for the actions of others. The defendant was charged with taking several items from the first floor of the house, including a television, microwave oven and a clock. However, it was the defendant’s coperpetrators, Anthony and Willie Dixon, who entered the home and held the victims in a second-floor bedroom. During the incident, the women were never on the first floor, from which the items of property were taken. At one point, the defendant went to the top of the stairs; however, it appears he was never in the presence of the Dixons and the victims. The State points to no threat or use of violence by the Dixons to force the victims to relinquish the property the defendant is charged with taking.

The cases cited by the State are all distinguishable from the facts in the instant case. The victims were never in the “presence” of the property that was taken, and there is no showing that the victims were forced to direct the Dixons to the property taken. We find no merit to the State’s argument that the victims had control over the property on the first floor of the house. They were held upstairs throughout the entire incident. To find armed robbery based on the facts of this case, the robbery statute would have to be stretched beyond recognition.

In light of our disposition of the instant case, it is necessary that we address one of the defendant’s alternative arguments. The defendant argues that he is entitled to a new trial because the trial court erred in failing to give additional instructions to the jury following an inquiry by the jury in the course of their deliberations.

At trial the defendant raised the affirmative defense of necessity and compulsion. The court gave the pattern jury instruction defining compulsion: “It is a defense to the charge made against the defendant that he acted under compulsion of threat or menace of the imminent infliction of death or great bodily harm, if he reasonably believed death or great bodily harm would be inflicted upon him if he did not perform the conduct with which he is charged.” (Illinois Pattern Jury Instructions, Criminal, No. 24—25.21 (2d ed. 1981).) During deliberations the jury submitted the following question to the trial court: “Explain under the compulsion of threat. Expand on this, for the individual to be acting under compulsion, does the threat have to be continuous, or can it be a single or (one time) act[?]” The trial court responded that the instructions given the jury, when considered as a whole, were the complete set of instructions which should be given to the jury, and that it would be inappropriate for the trial court to further instruct the jury. The trial court found no gaps in the instructions given and ordered the jury to continue their deliberations.

On review, we find the trial court acted properly. The instructions given fully covered the issues to be decided by the jury. The presence and extent of compulsion were questions of fact to be determined by the jury. No further clarification was necessary.

Therefore, the defendant’s conviction for armed robbery is reversed and the cause remanded to the circuit court of Peoria County with directions to enter judgment on the residential burglary conviction and sentence accordingly.

Reversed and remanded with directions.

SCOTT, J., concurs.

PRESIDING JUSTICE HEIPLE,

dissenting:

Defendant, Levi Quincy Blake, was charged with home invasion, armed robbery and residential burglary. Following a jury trial, defendant was acquitted of home invasion, but convicted of armed robbery and residential burglary. The trial court entered judgment only on the armed robbery conviction and sentenced defendant to 12 years’ imprisonment. The majority opinion reverses the trial court’s decision. I dissent.

In the early morning hours of February 1, 1987, defendant and two acquaintances, Anthony and Willie Dixon, entered the home of Mabel Schadt, age 77. Mrs. Schadt lived alone and, having recently undergone eye surgery, had a neighbor, Rosemary Maloney, who ate dinner with her and slept in the extra bedroom. Schadt and Maloney were asleep upstairs when the Dixons entered through a first-floor door. Initially, the unarmed defendant remained outside while the Dixons, armed with weapons, went upstairs and confronted the elderly occupants. Eventually defendant entered the home, remaining on the first floor, and helped the Dixons remove property, including a microwave, antique clock, television and stereo. Defendant alerted his coperpetrators when he realized the police were approaching, and upon their arrival, defendant hid in the third-floor attic, where he was discovered several hours later. Defendant was convicted on the basis of his accountability for the actions of the Dixons.

Illinois defines armed robbery as the taking of property from the person or presence of another by the use of force or by threatening the imminent use of force while armed with a deadly weapon. (Ill. Rev. Stat. 1987, ch. 38, pars. 18 — 1, 18 — 2.) Defendant maintains that the State failed to adequately establish the presence or threat of force requirements associated with armed robbery. The test for presence is whether the complainant’s proximity to or control over the property was so close that she could have prevented the taking if not subjected to the use or threat of force. (People v. Braverman (1930), 340 Ill. 525.) The majority opines that because defendant removed only first-floor property and the victims were held on the second floor, the presence requirement was not met. Additionally, the majority holds that the State failed to show threat or use of violence by the Dixons to force Schadt and Maloney to relinquish the property. I disagree.

The Illinois Supreme Court has determined that the “requirement that there be a taking ‘from the person or presence’ is not *** limited to *** the immediate presence of the owner *** or custodian.” (People v. Smith (1980), 78 Ill. 2d 298, 302.) This language was directly applied in a case wherein the victim upstairs heard a noise downstairs, went down to investigate and confronted defendants in another room. After defendants left, the victim discovered items missing from the downstairs room. Although the victim was not present in the room during the taking, the property was under his care and control. (People v. Ortiz (1987), 156 Ill. App. 3d 170.) This interpretation has also been used in similar situations, including a case where one defendant held the victim at gunpoint while his co-defendant took a television from a back room (People v. Tiller (1982), 94 Ill. 2d 303), and it applies in the instant case. Although the property may not have been taken before the victims’ eyes, it was in their presence.

Additionally, the majority ascertains that the State failed to prove that threats or violence was used by the Dixons to force the victims to relinquish the property. While Illinois generally refuses to recognize initial force directed at another crime as sufficient for robbery when robbery is committed as an afterthought, such is not the case here. The record reveals nothing to support any conclusion other than that the Dixons entered the home with the intent to commit theft and their force toward the victims was to secure accomplishment of same. Accordingly, I dissent.


author: JUSTICE BARRY

text:
      In re MARRIAGE OF BRAD RAYMOND KAMP, Petitioner-Appellant, and LISA DIANE KAMP, Respondent-Appellee.
    Third District
    No. 3—89—0649
    Opinion filed July 18, 1990.

      Strodel, Kingery & Durree, Associates, of Peoria (Christopher P. Ryan, of counsel), for appellant.
    Edmonds & Lauktiis, of Chillicothe (John P. Edmonds, of counsel), for appellee.
   JUSTICE BARRY

delivered the opinion of the court:

The six-year marriage of Brad Raymond Kamp and Lisa Diane Kamp was dissolved on May 13, 1987. At issue in this appeal is the trial court’s classification and distribution of Brad’s interest in certain farm property.

The record on appeal reveals the following facts relevant to the inquiry before us. The parties were married on February 14, 1981. At that time Brad and his twin brother, Bruce, were farming a 240-acre parcel owned by Bill Dietrich. The brothers also helped their father, Raymond, farm about 500 acres of land. They used their father’s machinery and equipment in both operations. Brad and Bruce maintained a joint bank account and had business accounts with grain elevators and fertilizer dealers in the name “Kamp Brothers.” Brad and Bruce kept a record book of their accounts and shared all farm profits and expenses on a 50/50 basis. Their agreement between 1975 and 1986 was oral. When the brothers weren’t farming, Brad took seasonal employment in other businesses.

In 1982, Raymond picked up another 240 acres to farm. Then he and the twins farmed all 980 acres together, sharing expenses and profits equally — a third for Raymond and two thirds for the twins. For bookkeeping purposes, the brothers continued to maintain their own records in a book separate from their father’s.

Raymond retired effective February 1984, and Brad and Bruce purchased his farm equipment and machinery for $100,000. According to the testimony of record, the value of the tools and equipment owned by the brothers prior to their father’s retirement was minimal. The brothers continued to purchase farm equipment and increased the acreage that they farmed.

Then in January 1986, they entered into a written partnership agreement with John Dietrich. Because of Dietrich’s relative inexperience in the farm business, the partners agreed to include approximately $60,000 of “good will” in valuating the Kamp Brothers’ machinery and equipment, which they fixed at approximately $288,000. At the time of trial, the Kamp Brothers partnership farmed in excess of 1,800 acres on a tenant basis.

Based on the evidence presented at trial, the court determined that Brad’s individual interest in Kamp Brothers partnership was worth $93,578 at the time the parties’ marriage was dissolved. The court determined that Brad’s interest was marital property and awarded Lisa $31,192.66 as her share of the asset.

In this appeal, Brad argues first that the court erred in finding that his interest in the Kamp Brothers partnership was a marital asset. Brad further contends that in the event this court should determine that the classification of the property was erroneous, then we should resolve as well the parties’ dispute over whether the marital estate is entitled to reimbursement from the partnership interest qua nonmarital asset.

Central to Brad’s argument that the partnership was non-marital property is the fact that the evidence strongly indicates that a partnership known as Kamp Brothers was in existence several years before 1981, when the parties were married. Brad correctly states that in this State a partnership may be formed when two or more persons join forces “to carry on a trade or venture for their common benefit, each contributing property or services, and having a community of interest in the profits. As between the [partners], the existence of a partnership relation is a question of intention to be gathered from all the facts and circumstances. Factors to consider are profit sharing, written articles of agreement, the mode in which the parties have dealt with each other and others, and the use of the firm name.” Hoover v. Crippen (1987), 163 Ill. App. 3d 858, 862, 516 N.E.2d 722, 725, citing Rizzo v. Rizzo (1954), 3 Ill. 2d 291, 120 N.E.2d 546.

Notwithstanding Lisa’s suggestion to the contrary, we agree with Brad that the mere fact that the brothers had not entered into a formal written partnership agreement or filed Federal partnership tax returns prior to 1981 does not defeat a finding that a farming partnership existed prior to the parties’ marriage.

We further agree with Brad that the partnership interest is non-marital property. Our analysis of the issue is guided by the court’s decision in In re Marriage of Wilder (1983), 122 Ill. App. 3d 338, 461 N.E.2d 447, and section 503(a) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1987, ch. 40, par. 503(a)).

Section 503(a) recites that nonmarital property includes “(2) property acquired in exchange for property acquired before the marriage or in exchange for property acquired by gift, legacy or descent; *** (6) property acquired before the marriage; [and] (7) the increase in value of property acquired by a method listed in [the foregoing] paragraphs ***, irrespective of whether the increase results from a contribution of marital property, non-marital property, the personal effort of a spouse, or otherwise, subject to the right of reimbursement provided in subsection (c) of this Section.” (Ill. Rev. Stat. 1987, ch. 40, pars. 503(a)(2), (a)(6), (a)(7).) This statute leaves no doubt but that a business property interest owned by one spouse prior to the parties’ marriage, such as the partnership here at issue, is nonmarital property and retains its nonmarital classification despite the addition of a third partner and a significant increase in its value during the marriage.

In an analogous situation, the court in Wilder found that stock in a professional corporation was nonmarital property. There, the husband had developed a sole proprietorship practice of retinal surgery over a 10-year period prior to the parties’ marriage. Two years after the marriage, the form of the business was changed to that of a professional corporation. The instrument of conveyance executed at the time of the conversion recited that the husband was to receive 50% of the stock of the new corporation and a note for $5,000 in exchange for his office equipment and furniture. As in this case, the wife in Wilder argued that the value of the husband’s business had increased significantly during the parties’ marriage. Nonetheless, both the trial court and the court on review rejected the wife’s position that the husband’s business property interest had lost its identity as nonmarital property. Wilder, 122 Ill. App. 3d at 343-44, 461 N.E.2d at 452, citing Ill. Rev. Stat. 1981, ch. 40, par. 503(a)(2); In re Marriage of Smith (1981), 86 Ill. 2d 518, 427 N.E.2d 1239.

For purposes of the instant appeal, Wilder is further instructive in that the court there observed that in some cases the trial court’s classification, even if in error, will not require a reversal if no prejudice is shown, i.e., where the outcome would be no different had the error not occurred. (Wilder, 122 Ill. App. 3d at 345, 461 N.E.2d at 451-52.) It is with this proposition in mind that we pursue our analysis of Brad’s second issue concerning possible reimbursement from the nonmarital asset.

Subsection (c)(2) of section 503 recites:

“When one estate of property makes a contribution to another estate of property, or when a spouse contributes personal effort to non-marital property, the contributing estate shall be reimbursed from the estate receiving the contribution notwithstanding any transmutation; provided, that no such reimbursement shall be made with respect to a contribution which is not retraceable by clear and convincing evidence, or was a gift, or, in the case of a contribution of personal effort of a spouse to non-marital property, unless the effort is significant and results in substantial appreciation of the non-marital property. Personal effort of a spouse shall be deemed a contribution by the marital estate. The court may provide for reimbursement out of the marital property to be divided or by imposing a lien against the non-marital property which received the contribution.” (Ill. Rev. Stat. 1987, ch. 40, par. 503(c)(2).)

Brad contends that Lisa’s efforts on the farm were insignificant and did not contribute to any increase in the value of the partnership. Lisa virtually concedes this point. In fact, during the entire marriage she was occupied with endeavors unrelated to the farming enterprise — either furthering her education or working elsewhere. Lisa’s personal contributions to the farm enterprise were, indeed, negligible.

Brad further contends that any appreciation in the farming enterprise during the marriage was due to external factors, rather than his own efforts. The “external factors” he alludes to are: (1) his father’s decision approaching retirement to include Brad and Bruce as equal partners to the full extent of his farming operation in 1982-83; (2) his father’s retirement and sale of equipment and machinery to Kamp Brothers in 1984; (3) the acquisition of additional acreage by John Dietrich’s father after 1983, which was then leased to Kamp Brothers in anticipation of John’s joining the partnership; and (4) John’s substantial financial contribution to the partnership in 1986 together with the Kamp Brothers’ decreased farm expenditures during the previous spring. In support of this argument, Brad cites In re Marriage of Morse (1986), 143 Ill. App. 3d 849, 493 N.E.2d 1088.

Morse provides relevant authority for determining reimbursement from nonmarital property to the marital estate under section 503(c)(2). The court there states:

“[T]he correct procedure to be applied under section 503(c)(2) is to determine whether either spouse, petitioner or respondent, contributed significant personal effort toward the [non-marital business interest] which resulted in substantial appreciation of that business. [Citations.] Because personal effort of a spouse is deemed a contribution by the marital estate, respondent’s contribution of personal effort toward his nonmarital property may entitle the marital estate, not petitioner, to reimbursement from the nonmarital estate receiving the contribution. [Citation.] However, it is the appreciation resulting from significant personal effort, not inflation or other factors external to the marriage which entitles the marital estate to reimbursement. [Citations.] Additionally, in valuing the right to reimbursement, if respondent’s salary is found to be reasonable compensation for his efforts, the nonmarital business need ' not reimburse the marital estate because respondent’s salary during the marriage is marital property and, thus, the marital estate has already been compensated. [Citation.]” (143 Ill. App. 3d at 854-55, 493 N.E.2d at 1092.)

Morse is analogous to this case in that the husband there owned a nonmarital insurance agency for which the wife performed minimal services during the marriage. On appeal, the court rejected the wife’s contention that she, as opposed to the marital estate, was entitled to reimbursement for her contribution to the business during the parties’ marriage. In remanding the case for consideration of reimbursement to the marital estate, the court suggested that if the husband’s salary during the marriage did not reasonably compensate for his services to the agency, then that portion of the $62,000 appreciation in the business that did not result from “factors external to the marriage” would be available for reimbursing the marital estate under section 503(c)(2).

More recently, the appellate court in In re Marriage of Tatham (1988), 173 Ill. App. 3d 1072, 527 N.E.2d 1351, considered a farming operation where the husband managed a 1,006-acre farm prior to and throughout the parties’ 19V2-year marriage but received no salary from the farm operation during the marriage. Prior to the marriage, the husband had received $800 per month for his managerial efforts. The circuit court had ruled that the farm operation was nonmarital property and ordered reimbursement in the amount of $65,600 to the marital estate, one-half of which was awarded to the wife in the court’s property distribution order. On appeal, the husband argued that either the farm was nonowned property not subject to classification as either marital or nonmarital property, or that his efforts did not result in substantial appreciation of the farm. The appellate court disagreed, finding that the husband had maintained the farm and kept it from deteriorating by his personal managerial efforts, and that the property had in fact substantially increased in value despite numerical values introduced to the contrary. Accordingly, the court on appeal affirmed the circuit court’s award to wife of $32,800 from the farm.

Lisa argues that neither Morse nor Tatham supports Brad’s position. Lisa points out that Morse is distinguishable because, unlike the wife in Morse, Lisa earned her own salary, applied it to the couple’s support during the marriage and enabled Brad to use their joint account to help finance the farming operation from year to year. She suggests that, like the husband in Tatham, Brad’s compensation from the farm was primarily reinvested in farm equipment and supplies and did not substantially contribute to the couple’s support. Lisa posits that even if this court reverses the trial court’s classification of the partnership interest as marital property, the amount due the marital estate from the nonmarital property interest supports the trial court’s award to her of $31,192.66; thus, the erroneous classification must be considered harmless error.

Having duly considered both parties’ arguments, we find them sufficiently meritorious to justify remandment for a further hearing in the trial court. We are not persuaded that the “external factors” cited by Brad are such that the reimbursement provision of section 503(c)(2) would not apply. From the record on appeal it appears that the only assets of the partnership considered in its valuation of roughly $280,000 are equipment and machinery that were purchased, not given to Kamp Brothers. The fortuities of gaining more leased acreage and a third partner provided opportunities to expand the farming operation and increase profits, but it is clear to us that it was solely through significant personal efforts of the partners that the enterprise in fact increased in value during the parties’ marriage from practically nothing to $280,000.

Likewise, we are not convinced based on the record before us that the amount to which Lisa is entitled when the marital estate is properly reimbursed by Brad’s share of the partnership would equal the amount the trial court originally awarded her. It does not appear that the court considered Brad’s yearly compensation from the farming operation, although there is testimony that the partners periodically drew substantial sums out of the partnership account for their personal use. Clearly, the marital estate has already been compensated to the extent that Brad’s personal income represented reasonable compensation for his efforts in the farm operation. The actual amount of Brad’s compensation during the marriage, however, cannot be determined on the basis of the record on appeal. Accordingly, we must reject Lisa’s “harmless error” argument.

Upon remand, Brad’s compensation from the farm partnership should be determined and evaluated in relation to the reasonable value of his personal efforts in increasing the value of the partnership during the marriage. To the extent that Brad’s contributions to the farm partnership are found to have been inadequately compensated, the marital estate is entitled to reimbursement from Brad’s share of Kamp Brothers, which reimbursement in turn is to be equitably apportioned between the parties.

The judgment of the circuit court is reversed, and the cause is remanded for further proceedings.

Reversed and remanded.

HEIPLE, P.J., and SCOTT, J., concur.


author: JUSTICE BARRY JUSTICE STOUDER,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DOUG W. WOZNIAK, Defendant-Appellant.
    Third District
    No. 3—89—0054
    Opinion filed July 17, 1990.
    STOUDER, J., specially concurring.
    Marc Bernabei, State’s Attorney, of Princeton (John X. Breslin, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Douglas B. Olivero, of Peru, for appellee.
   JUSTICE BARRY

delivered the opinion of the court:

Defendant Doug W. Wozniak was charged with driving under the influence of alcohol (Ill. Rev. Stat. 1987, ch. 95½, par. 11—501(a)(2)). The trial court granted defendant’s motion to suppress the result of defendant’s breath test. The State appeals the suppression order.

The record shows that on October 9, 1988, defendant was charged with driving under the influence of alcohol and his license was summarily suspended. Defendant subsequently filed a petition to rescind (Ill. Rev. Stat. 1987, ch. 95½, par. 11—501.1), alleging that he had not been properly arrested.

At the hearing on the petition, Spring Valley police officer Thomas Sment testified that on October 9 he had investigated a traffic accident involving vehicles driven by defendant and Mrs. McNally. The officer asked for both drivers’ licenses and issued a citation to Mrs. McNally for failure to yield. While talking with defendant, Sment noted that defendant had difficulty speaking and that he staggered and swayed as he walked. Sment also detected the odor of alcohol on defendant’s breath. The officer had defendant perform some field sobriety tests, which defendant failed. Sment then told defendant to accompany him to the police station for a breath test. He did not tell defendant that he was under arrest at that time.

Officer Sment further stated that he had known defendant for four years and did not think it necessary to handcuff him. Defendant sat in the front seat of the squad car en route to the police station. There, the officer gave defendant the standard motorist’s warning (Ill. Rev. Stat. 1987, ch. 95½, par. 11—501.1(c)) and administered the breath test. Defendant registered a .20 breath-alcohol content. Then, defendant lost his balance and disturbed the breathalyzer keyboard. Consequently, a second test was administered in which defendant registered a .19 breath-alcohol content. At that point the officer issued defendant a citation for driving under the influence of alcohol. Defendant’s license was not returned to him that evening.

Defendant testified that he had been drinking beer that evening. He claimed, however, that he satisfactorily performed the field sobriety tests. He also denied that he staggered or swayed as he walked. Defendant agreed that he was not handcuffed, but stated that he rode in the back seat of the police car to the station.

The trial court found that defendant had not been arrested prior to the breath test. Accordingly, the court rescinded the statutory summary suspension.

Defendant subsequently filed a motion to suppress the breath-test result in the DUI prosecution, again arguing that he had not been properly arrested prior to the breath test. The parties rested on the evidence presented at the summary suspension hearing. The trial court suppressed the breath-test result on the ground that defendant had not been arrested prior to the test.

In this appeal, the State argues only that the trial court erred in suppressing the breath-test result in the DUI prosecution. The State acknowledges that the statutory summary suspension provisions are triggered by an arrest for driving under the influence of alcohol (Ill. Rev. Stat. 1987, ch. 95½, par. 11—501.1(a)). There is no language, however, in that section or in section 11—501 (Ill. Rev. Stat. 1987, ch. 95½, par. 11—501)—the section defining the offense of driving under the influence of alcohol — stating that an arrest must precede a breath test in order for the result to be admissible in a DUI prosecution. The State concludes that as long as the test is supported by probable cause to believe that the motorist was driving under the influence of alcohol, the result is admissible in a DUI prosecution regardless of whether defendant was under arrest at the time the test was administered.

The initial question to be resolved is a question of law, i.e., whether sections 11—501 and 11—501.1 of the Illinois Vehicle Code (Ill. Rev. Stat. 1987, ch. 95½, pars. 11—501, 11—501.1) are so interrelated as to require suppression of evidence in a DUI prosecution solely because such evidence was statutorily invalidated for purposes of the summary suspension proceedings.

In another context, that question was recently answered in the negative by the Second District of the Illinois Appellate Court (People v. Giere (2d Dist. 1989), 192 Ill. App. 3d 520, 548 N.E.2d 1104, appeal denied (1990), 131 Ill. 2d 562) and in the affirmative by this district (People v. Monckton (3d Dist. 1989), 191 Ill. App. 3d 106, 547 N.E.2d 673, appeal denied (1990), 131 Ill. 2d 564). At issue in Monckton and Giere was whether a breath test taken without defendant’s voluntary consent as required for purposes of the summary suspension provision tainted the test result for purposes of a subsequent DUI prosecution. In Monckton this court rejected its own precedent in People v. Eaves (3d Dist. 1988), 174 Ill. App. 3d 911, 529 N.E.2d 277, ruling that “[ajdmission of the result in either the summary suspension hearing or the DUI trial would defeat the legislature’s objective of allowing a defendant to make a knowing and voluntary decision regarding the test.” Monckton, 191 Ill. App. 3d at 109, 547 N.E.2d at 674.

By contrast, in Giere, the court, relying on precedent in People v. Brawn (2d Dist. 1988), 175 Ill. App. 3d 725, 530 N.E.2d 71, Village of Algonquin v. Ford (2d Dist. 1986), 145 Ill. App. 3d 19, 495 N.E.2d 595, and Eaves, stated, “There is nothing *** in either section 11—501 or section 11—501.1 that requires consent before a blood test may be taken in a DUI or reckless homicide prosecution.” (Giere, 192 Ill. App. 3d at 524-25, 548 N.E.2d at 1107.) To the extent that Giere was convicted only of reckless homicide (the DUI charge having been dismissed prior to trial), the court’s statement relative to DUI is obiter dictum. Nonetheless, the rationales of the two decisions cannot be reconciled. Giere rejects the precedents of People v. Frazier (4th Dist. 1984), 123 Ill. App. 3d 563, 463 N.E.2d 165, and People v. Romano (2nd Dist. 1985), 139 Ill. App. 3d 999, 487 N.E.2d 785, decided under a prior version of section 11—501.1(c), which had held that consent under the statute then in effect was required before blood tests could be administered.

In Monckton, Frazier and Romano were relied upon as support for the court’s statement that “[t]he Code reflects the legislature’s desire to prohibit involuntary blood and breath tests and to allow a driver to make a knowing withdrawal of his implied consent, so long as he is willing to bear the penalty.” (Monckton, 191 Ill. App. 3d at 109, 547 N.E.2d at 674.) Monckton fails, however, to consider statutory amendments subsequent to Frazier and Romano and makes no reference to either Ford or Brown. Although Monckton derives its finding of legislative intent from section 11—501.1(c), it does not purport to engraft that provision onto section 11—501.

Given the substantive differences between civil implied consent proceedings and a criminal DUI prosecution (see People v. Golden (5th Dist. 1983), 117 Ill. App. 3d 150, 453 N.E.2d 15), any further extent of the civil protections would, we believe, only confuse already muddy waters. Suffice to say, we find no expression of legislative intent to extend the predicate arrest provision of the summary suspension statute to DUI prosecutions. We hold that for purposes of DUI prosecutions, admissibility of blood-alcohol test results is subject to fourth amendment constraints and those specific provisions of the Illinois Vehicle Code relating, to the administration of such tests (Ill. Rev. Stat. 1987, ch. 95½, pars. 11—501.2 through 11—501.4).

Moreover, even were we to extend the protections of the summary suspension statute to DUI prosecutions, we would find the court’s conclusion in this case that defendant had not been timely arrested contrary to the manifest weight of the evidence. From the record on appeal, it is clear that the trial court placed undue emphasis upon the arresting officer’s failure to tell defendant that he was under arrest. The court’s analysis is thus flawed because it focuses upon the officer’s conduct instead of on the arrestee’s reasonable perception of his situation.

As this court recently stated in People v. Jones (1990), 198 Ill. App. 3d 572, 575, “the standard for determining if and when an arrest has occurred is whether a reasonable man, innocent of any crime, would have concluded that he was not free to leave considering the surrounding circumstances. (People v. Wright (1985), 111 Ill. 2d 128, 490 N.E.2d 640.) Such circumstances include the continuing possession of the individual’s driver’s license by a police officer, the placing of an individual in a squad car, and the duration of the individual’s detention. (People v. Goodman (1988), 173 Ill. App. 3d 559, 527 N.E.2d 1055.)”

In Jones, as here, defendant’s appearance and conduct at the scene of his encounter with the police officer gave the officer probable cause to believe defendant was under the influence of alcohol. At the officer’s request, defendant relinquished his license, performed field sobriety tests, and was invited to accompany the officer in a squad car to the police station for further testing. Even accepting as credible defendant’s version of the events preceding his breathalyzer tests, a reasonable person under these circumstances would have believed he was not free to leave despite the fact that the officer did not issue a citation for DUI until after administering the breathalyzer test. In sum, we find that defendant was “arrested” for purposes of the DUI prosecution before he arrived at the police station.

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

Reversed and cause remanded.

SCOTT, J., concurs.

JUSTICE STOUDER,

specially concurring:

I agree with the result reached by the majority in this case but I do not agree with all of the findings or conclusions of the majority.

In particular I agree with the majority the defendant was under arrest before the blood-alcohol test was administered. Having so decided, the issue discussed at length in the majority opinion concerning the consequences of administering a test if the defendant was under arrest is obiter dictum, unnecessary to the opinion. In the interest of judicial restraint I see no special reason for considering an issue unnecessary to the resolution of the case in the circumstances presented by this appeal. I do not join with the majority in the reasoning or resolution of this issue.