text:
    BETH SWIERKOSZ, Plaintiff-Appellant, v. STARVED ROCK STABLES, Defendant-Appellee.
    Third District
    No. 3-92-0301
    Opinion filed January 5, 1993.
    R.J. Lannon, Jr., of Herbolsheimer, Lannon, Henson, Duncan & Reagan, of La Salle, and Herbolsheimer, Lannon, Henson, Duncan & Reagan, of Ottawa (Michael C. Jansz, of counsel), for appellant.
    Myers, Daugherity, Berry & O’Conor, Ltd., of Ottawa (Eugene P. Daugherity, of counsel), for appellee.
   PRESIDING JUSTICE McCUSKEY

delivered the opinion of the court:

Plaintiff, Beth Swierkosz, brought an action to recover damages for injuries she received when thrown from a horse rented from defendant, Starved Rock Stables. Plaintiff appeals the dismissal of two counts in her complaint which alleged negligence and a violation of the Animal Control Act (Ill. Rev. Stat. 1989, ch. 8, par. 351 et seq.). We affirm the dismissal of both counts of the complaint.

We conclude (1) plaintiff failed to state a cause of action under the Animal Control Act, and (2) the exculpatory agreement signed by the plaintiff released defendant from liability for its alleged negligence.

Plaintiff was injured in July 1991 when she fell from a horse rented from defendant. Count I of plaintiff’s three-count complaint was premised on common law negligence. Count III was brought pursuant to section 16 of the Animal Control Act, which provides:

“If a dog or other animal, without provocation, attacks or injures any person who is peaceably conducting himself in any place where he may lawfully be, the owner of such dog or other animal is liable in damages to such person for the full amount of the injury sustained.” Ill. Rev. Stat. 1989, ch. 8, par. 366.

Defendant filed a motion to dismiss counts I and III of the complaint. (Ill. Rev. Stat. 1989, ch. 110, par. 2-619(9).) Defendant argued that an exculpatory agreement signed by the plaintiff released the defendant from liability for the negligence alleged in count I. Defendant further argued that the plaintiff was precluded from recovery in count III under the Animal Control Act pursuant to our supreme court’s decision in Harris v. Walker (1988), 119 Ill. 2d 542, 519 N.E.2d 917.

Plaintiff filed counteraffidavits in response to the defendant’s motion to dismiss. Plaintiff stated that in the months preceding the accident, she had ridden on two other occasions at Starved Rock Stables. She had no other “contact or familiarity” with horses. She knew horses would “buck and rear up as well as kick out with their hind legs.” However, she was unaware that horses would suddenly jump to the side when spooked or startled. She “expected and anticipated that the horse she was riding would walk or trot in a straight line following the horse in front of it.” She read and signed the exculpatory agreement on her first visit to the stables that summer. Thereafter, during her next two visits, she simply signed the exculpatory agreement without ever reading it.

The trial court granted defendant’s motion to dismiss, and plaintiff appeals. Based upon our supreme court’s decision in Harris, we first conclude that the trial court properly determined that the plaintiff failed to state a cause of action under the Animal Control Act.

“[W]here a person rents a horse and understands and expressly accepts the risks of using the horse, he cannot recover damages from the person who rented the horse to him under section 16 of the Animal Control Act.” Harris v. Walker (1988), 119 Ill. 2d 542, 548, 519 N.E.2d 917, 919.

The plaintiff in Harris was injured in a fall from a horse which he rented from defendant’s riding stable. The plaintiff signed an exculpatory agreement relieving the defendant from liability that might be incurred “while on the premises or for any injury which may result from horseback riding.” Ill. 2d at 548-49, 519 N.E.2d at 919.

The plaintiff in Harris, like the plaintiff in the instant appeal, filed an action based on section 16 of the Animal Control Act and on a common law negligence theory. (Harris, 119 Ill. 2d at 545, 519 N.E.2d at 918.) In Harris, the supreme court reversed the appellate court and affirmed the trial court’s grant of summary judgment for the defendant. Our supreme court determined that

“the legislature intended only to provide coverage under the statute for plaintiffs who, by virtue of their relationship to the owner of the dog or other animal or the lack of any such relationship, may not have any way of knowing or avoiding the risk that the animal poses to them.” (Harris, 119 Ill. 2d at 547, 519 N.E.2d at 919.)

The supreme court concluded that the plaintiff’s act of contracting with the defendant to rent a horse established a relationship with the owner of the horse such that the plaintiff removed himself from the class of persons the legislature intended to protect. Harris, 119 Ill. 2d at 547-48, 519 N.E.2d at 919.

We recognize that our supreme court’s holding in Harris may be premised in part on the fact that the plaintiff evidenced his understanding and acceptance of the risks of horseback riding by executing an exculpatory agreement prior to riding, and later confirmed his understanding in deposition testimony. (Harris, 119 Ill. 2d at 547-48, 519 N.E.2d at 919.) Assuming, then, as the instant plaintiff maintains, that her inexperience prevented her from a meaningful understanding of the risks of horseback riding and, further, that the exculpatory agreement she signed was ambiguous and unclear, we still conclude that no claim exists under the Act when a rider is thrown from a horse she has voluntarily mounted. Ennen v. White (1992), 232 Ill. App. 3d 1061, 598 N.E.2d 416.

The plaintiff in Ennen brought an action under the Animal Control Act for compensation for injuries she sustained when the defendants’ horse threw her while she was riding the horse on defendants’ property. The plaintiff in Ennen had not signed an exculpatory agreement. The appellate court affirmed the dismissal of her amended complaint for failure to state a cause of action under the Act. The Ennen court reasoned that the plaintiff

“should have recognized her conduct involved a risk, she should have known the qualities and habits of animals, and capacities of things and forces insofar as they are matters of common knowledge in the community. This applies even if she was ignorant of the possibility Coke might throw her. See Restatement (Second) of Torts §290, Comment g, at 50 (1965).” (Emphasis added.) (Ennen, 232 Ill. App. 3d at 1065, 598 N.E.2d at 419.)

The Ennen court concluded:

“There is no legal or policy justification for extending the protections of the Act to a rider of a horse. Once the rider mounts the horse, the rider is no longer a bystander or observer but is someone who has asserted dominion over the animal and is an active partner with the animal in recreational activity. The rider assumes control and responsibility for the horse. While a cause of action may be stated under other theories of liability, there is none under the Act.” (Emphasis in original.) (Ennen, 232 Ill. App. 3d at 1066, 598 N.E.2d at 419.)

Accordingly, following the analysis and reasoning of Harris and Ennen, respectively, we conclude that the trial court did not err in dismissing count III of plaintiff’s complaint under the Animal Control Act.

Plaintiff next contends that the trial court erred in dismissing her common law negligence count based upon her execution of an exculpatory agreement. We disagree.

The supreme court in Harris “reaffirmed] that under certain circumstances exculpatory contracts may act as a total bar to a plaintiff’s negligence claim.” (Harris, 119 Ill. 2d at 548, 519 N.E.2d at 919. ) The supreme court cited the general rule of enforcing exculpatory contracts “ ‘unless (1) it would be against a settled public policy of the State to do so, or (2) there is something in the social relationship of the parties militating against upholding the agreement.’ [Citations.]” Harris, 119 Ill. 2d at 548, 519 N.E.2d at 919.

Our supreme court in Harris found the broad language of the release before it sufficient to encompass the plaintiff’s injury. The court explained that the parties’ failure to have considered the precise occurrence which resulted in the plaintiff’s injury did not invalidate the exculpatory agreement. (Harris, 119 Ill. 2d at 549, 519 N.E.2d at 920. ) The supreme court observed that “horseback riding involves various risks of injury that are plain to experienced riders.” (Harris, 119 Ill. 2d at 549, 519 N.E.2d at 919-20.) The court concluded:

“We believe that only the most inexperienced of horseback riders would not understand that under certain circumstances a horse may become spooked or ‘side-shocked’ and cause a rider to fall from the horse.” Harris, 119 Ill. 2d at 549, 519 N.E.2d at 920.

We note that our supreme court in Harris did not find any public policy conflicting with its holding that the exculpatory agreement released the defendant from any negligence liability. The court also noted that the plaintiff voluntarily entered into the relationship with the defendant. Harris, 119 Ill. 2d at 549-50, 519 N.E.2d at 920.

Plaintiff concedes that our supreme court in Harris held an exculpatory agreement could be effective to relieve a defendant from liability. Plaintiff argues, however, that the release she signed was unclear and ambiguous, and therefore ineffective to release the defendant from liability. We find the plaintiff’s focus is misplaced. The plaintiff dwells only upon certain individual phrases and sentences contained in the exculpatory agreement without focusing on the entire document. The obvious meaning of the release is derived from reading the entire agreement. We find that the release is clear and unambiguous. Accordingly, we hold that it is enforceable.

The release provided in pertinent part:

“Section II. Warnings and Assumption of Risk Agreement
A. I/We understand that horse back riding is classified as ADVENTURE RECREATIONAL SPORT ACTIVITY and that there are inherent elements of risk always present in any such activity despite all safety precautions. I fully accept such risk, some examples of which are listed as follows:
1. *** [I]t is not possible for any person or establishment to predict exactly how a horse will behave when it is frightened, angry or under stress; it may react according to its natural instincts which are to jump sideways, forward or backward ***.
2. Upon mounting a horse and taking up the reins the rider is in primary control of the horse ***. If a rider falls from a horse to the ground it will be a fall of from ZMz to 5 feet and impact will be according to physical law, possibly resulting in injury to a rider.
Section III. Release Agreement
A. I/We understand and agree that except in event of THIS STABLE’S gross negligence, I/We accept full responsibility for bodily injury *** which [is] sustained by any member of my group so listed above, on or in relationship to the premises and operations of THIS STABLE and/or while riding or handling horses or other animals owned by same; and that I/We hereby, for myself ***, do hereby release and discharge the owners, operators, sponsors of the premises and their respective servants, agents, officers and all other participants of and from all claims, demands, actions and causes of action for same injuries *** ff

We first note that the cause — and even the effect — of the plaintiff’s fall were precisely enumerated in the release as the risks which the plaintiff assumed when she rented the horse:

“[I]t is not possible *** to predict exactly how a horse will behave ***; it may react according to its natural instincts which are to jump sideways ***. *** If a rider falls from a horse to the ground it will be a fall of from 3V2 to 5 feet and impact will be according to physical law, possibly resulting in injury to a rider.”

Therefore, we hold in the instant appeal that the plaintiff accepted the risk with full knowledge and appreciation of the danger.

The plaintiff further argues that she is not covered by the holding in Harris because she was an inexperienced rider. Even if we accept plaintiff’s argument that she was inexperienced, we believe the supreme court’s discussion of the plaintiff’s experience in Harris was necessary because the release language there was broad and general. However, the plaintiff’s experience here is less of a factor because the release specifically enumerated the risks of horseback riding. Also, we cannot ignore the fact that the plaintiff has admitted this was her third visit to the defendant’s stables.

We conclude that the plaintiff’s execution of the exculpatory agreemént bars her recovery of damages under a negligence theory. The risks of horseback riding were clearly delineated in the release agreement. We find the trial court properly dismissed count III of the plaintiff’s complaint.

For the reasons indicated, the judgment of the circuit court of La Salle County is affirmed.

Affirmed.

SLATER and STOUDER, JJ., concur.


source: Caselaw Access Project

author: JUSTICE BARRY

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANDRE D. GAY, Defendant-Appellant.
    Third District
    No. 3-91-0865
    Opinion filed January 8, 1993.
    Charles L. Jones, of State Appellate Defender’s Office, of Springfield, for appellant.
    Marshall E. Douglas, State’s Attorney, of Rock Island (John X. Breslin and Terry A. Mertel, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE BARRY

delivered the opinion of the court:

The defendant, Andre D. Gay, appeals his convictions for disarming a peace officer and resisting a peace officer (Ill. Rev. Stat. 1991, ch. 38, pars. 31-1a, 31-1). The issues on appeal concern whether his actions constituted disarming an officer, and whether he established a compulsion defense. We find that he was properly convicted and affirm.

According to the record, Moline police officer Timothy Krakovec testified that on March 11, 1991, he and Officer Bruce Kauzlarich were instructed to find the defendant and bring him to the police station. They did not have a warrant for his arrest. After they found him at a local residence, he agreed to accompany them back to the station. When they approached the door of the home, however, he began running.

The officers gave chase, and Krakovec eventually found him in another yard. He told the defendant that he must stop, that he was under arrest, and that he was to get down on the ground. The defendant continued walking. Krakovec then hit the defendant several times in the thigh with his nightstick. When those blows had no effect, he grabbed the defendant’s right shoulder and chin. The defendant bit the officer’s hand, and the two began struggling. The defendant gained the upper hand and punched the officer four times in the face. Krakovec fought back by jabbing his nightstick into the defendant’s stomach and ribs. When the defendant reached down to Krakovec’s gun belt, Krakovec grabbed the gun and covered the trigger with his first two fingers so it could not be fired.

Krakovec said that he heard the snap on his holster release. Using both hands, the defendant pulled the gun out of the holster. The officer dropped his nightstick and grabbed the gun with both hands. The defendant pushed Krakovec’s wrist back and twisted Krakovec’s fingers off the trigger guard. At this point, the gun was pointed directly at Krakovec’s face, and Krakovec was only holding it with his thumb and last two fingers. As he was losing his grip, he tried to hold the hammer to prevent a shot from being fired. When the defendant said, “I’m going to kill you,” Krakovec pushed the defendant’s hand from the top of the weapon to the end of it. As Krakovec pushed the gun away from his face and the defendant pulled it, the weapon fired into the defendant’s right hand.

The officer testified that they continued struggling over the gun. Krakovec was able to keep a hand on the gun at all times. The defendant kept his left hand on the gun, and later used his right hand as well. As each man attempted to pull the gun toward himself, the weapon fired a second time, striking the defendant in the thigh and the officer in the foot. The defendant then took his hands off the gun and followed Krakovec’s instruction to get down on the ground. Soon thereafter, Kauzlarich arrived and handcuffed the defendant.

Officer Kauzlarich testified that when the defendant began running, he chased him. However, he soon lost sight of him. He then heard two shots being fired. The second shot sounded louder than the first. When he came upon Krakovec and the defendant, Krakovec was holding a gun. He saw that Krakovec had cuts and blood on his face, and that his hands and gun were bloody.

The defendant testified that he ran from the officers to go to a friend’s house and get bail money. Krakovec caught the defendant and grabbed him by the neck. Krakovec never told him to stop running or that he was under arrest. He also did not take out his nightstick, although he was holding his gun in his left hand.

The defendant said that as he struggled against the officer, the gun discharged into his thigh. When the defendant fell to the ground, Krakovec kneeled over him and pointed the gun in his face. The defendant thought that Krakovec was going to shoot him, so he placed his right hand over the gun barrel. The officer then shot the defendant in his hand.

The defendant said that he never intended to disarm or injure the officer. He also denied striking Krakovec in the face. He admitted that he had been previously convicted of residential burglary.

Dr. Forrest King testified that he examined Krakovec and the defendant following the shooting. He believed that the defendant could have used his hand after it had been shot. He noted that although using it would have been painful, all of the fingers were functioning except the index finger. He also said that Krakovec had sustained an abrasion to the inside of his lower lip.

A nearby resident, David Wolfe, testified that he heard the shots fired that evening. The second shot was louder than the first.

On appeal, the defendant first argues that he was not proven guilty of disarming a peace officer. Essentially, the defendant contends that since the officer admitted he was able to keep a hand on his gun throughout the struggle, the defendant did not take a gun from his person.

In deciding this question, we note that the statute states that a person commits the offense “by taking a firearm from the person of the peace officer.” (Ill. Rev. Stat. 1991, ch. 38, par. 31-1a.) As a court of review, we must give effect to the legislature’s intent in passing this statute. People v. Scott (1974), 57 Ill. 2d 353, 312 N.E.2d 596.

Here, the obvious intent of the legislature was to prevent the disarming of police officers and the seizing of weapons by dangerous citizens. According to the officer’s testimony, which the jury apparently accepted, the defendant removed the officer’s gun from his holster. Although the officer kept a hand on his gun, the defendant managed to twist it around so that it was pointing in the officer’s face. The defendant then said that he was going to kill him. His testimony therefore shows that at one point during the fight, Krakovec had effectively lost control of the weapon and the defendant had gained almost complete control of it.

Based on these facts, we find that the defendant could be convicted of disarming an officer. We do not believe that the legislature intended that an officer must be completely separated from his weapon in order for the statute to apply. Instead, we find that where the defendant has caused the officer to lose control of his weapon, the defendant may be convicted of the offense.

The defendant next argues that he was not proved guilty of disarming an officer because the evidence showed that he was compelled to grasp the gun to avoid death or great bodily harm. Although he acknowledges that Krakovec’s testimony tended to refute his compulsion defense, he contends that the testimony was unbelievable. He notes, inter alia, that he would not have shot himself in the hand while struggling over the gun, and that he would not have used his hand after it had been shot.

On review, the relevant question is whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found that the elements of the crime had been proved beyond a reasonable doubt. (People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267.) It is the jury’s function as the trier of fact to resolve any conflicts in the evidence, and it is not the reviewing court’s function to retry the defendant. (People v. Sanchez (1986), 115 Ill. 2d 238, 503 N.E.2d 277.) Thus, when the evidence is merely conflicting, a reviewing court will not substitute its judgment for that of the trier of fact. People v. Miller (1991), 222 Ill. App. 3d 1081, 584 N.E.2d 551.

We find that the officer’s testimony was clearly credible enough to serve as a basis for the conviction. First, contrary to the defendant’s assertion, it is not unlikely that the defendant would have shot his hand while he struggled over the gun. Krakovec explained that the first shot was fired as he pushed the gun away from his face and the defendant tried to pull the gun toward himself. Under these circumstances, it is quite possible that the trigger could have been pulled with sufficient force to fire the gun.

Second, we disagree with the defendant’s assertion that he could not have used his right hand after it had been shot. Dr. King testified that the defendant could have used his hand after it had been wounded. He noted that although using it would have been painful, all of the fingers on the hand were functioning except the index finger. We do not find it implausible that the defendant would have temporarily ignored the pain in his hand as he struggled with the officer for control of a lethal weapon.

We also note that Krakovec’s testimony was corroborated by the other witnesses. Wolfe and Kauzlarich testified that the second shot was louder than the first. Their testimony tended to support the officer’s assertion that the first shot was fired as the defendant’s hand was over the gun barrel, thereby muffling the sound. Additionally, Kauzlarich testified that Krakovec had cuts and blood on his face, and Dr. King noted that Krakovec had an abrasion on his lower lip. This testimony supported Krakovec’s assertion that he had been punched in the face. Lastly, we note that the defendant’s credibility had been impeached by his prior conviction for residential burglary.

In sum, the evidence concerning the compulsion defense was merely conflicting. We find nothing in the record leading us to conclude that the jury’s determination must be overturned. We therefore affirm the judgment of the circuit court of Rock Island County.

Affirmed.

McCUSKEY and SLATER, JJ., concur.


author: JUSTICE SLATER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DONNA L. CROWDER, Defendant-Appellant.
    Third District
    No. 3-91-0735
    Opinion filed January 5, 1993.

      Kenneth D. Brown, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Kevin W. Lyons, State’s Attorney, of Peoria (John X. Breslin and Judith Z. Kelly, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE SLATER

delivered the opinion of the court:

A jury found the defendant, Donna L. Crowder, guilty of attempted murder, aggravated battery with a firearm, and aggravated discharge of a firearm (Ill. Rev. Stat. 1991, ch. 38, pars. 8-4, 9-1, 12-4.2, 24-1.2). She was sentenced to a 10-year term of imprisonment. She appeals, and we reverse and remand for a new trial.

The victim, Jerry Gray, testified that the defendant shot him. He explained that the day before the shooting, the defendant had given him five bags of crack cocaine to sell. He, in turn, gave the crack to a man named Mookie to sell.

The next day, the defendant asked Gray for the money from the sale of the crack. Gray told her that Mookie had her money. Thereafter, the defendant yelled that she was going to shoot him in the head if she did not get her money or drugs back. The defendant then told him to find Mookie. When they could not find Mookie in the immediate area, the defendant told him to get in a car that was being driven by Norvail Noland.

After Gray and the defendant got into the car, Noland drove to his own home and went into the house to get a gun. Gray testified that when Noland returned to the car, he gave a .38 caliber revolver to the defendant. The defendant checked to see if it was loaded and told Gray that she was going to shoot him. Noland then drove to a nearby alley and stopped the car.

The defendant told Gray to get out of the car and to start running. He got out of the car, and after going about five feet, looked back and saw the defendant pointing a gun at him. She then pulled the trigger, firing a shot that hit him in the lower back.

On cross-examination it was determined that Gray told the police several different versions of the event. He only told the police that the defendant shot him after he received a threatening telephone call from Noland.

The defendant testified that she did not shoot Gray or threaten him. She stated that he did not owe her any money and that she had never given him any drugs to sell. She explained that on the day Gray was shot, she was with him and Noland. They had all gone to No-land’s home. However, she did not know why Noland went to his house. She stated that Noland went inside, and when he came out, he was not carrying anything.

Noland got back into the car, drove to an alley, and told Gray to get out of the car. When Gray did so, Noland shot him. The defendant testified that she did not see Noland with a gun prior to his shooting Gray.

Noland testified that he shot Gray with a .38 caliber revolver. He stated that Gray had lost some drugs which belonged to him. Noland said that he had been wearing a jacket and had the gun in the waistband of his pants when he met with the defendant and Gray. When the three got into his car, he did not drive to his home. Instead, he drove straight to an alley and told Gray to get out of the car. Noland also stated that after he had shot Gray, the defendant started crying and asked him why he had shot her friend.

Noland also testified that he pled guilty to the shooting of Gray about six weeks prior to the defendant’s trial. On the day of his plea, he also pled guilty to a separate charge of aggravated battery with a firearm involving another victim.

Following the presentation of evidence, a conference on jury instructions was held. The court agreed to give a State-tendered jury instruction on the theory of accountability. Although the defendant did not object to the giving of this instruction at trial, she raised the issue in her post-trial motion. In ruling on the issue, the trial court found that the evidence was closely balanced and it would review the issue under the plain error rule. The court then held that there was sufficient evidence presented for the jury to be instructed on the theory of accountability. Accordingly, it denied the defendant’s motion for a new trial.

On appeal, the defendant first argues that the court erred in giving an accountability jury instruction. Specifically, she states that it is improper to give an accountability instruction where the evidence shows that the defendant, if guilty, was guilty as a principal and not an accessory.

Generally, a defendant waives any error contained in jury instructions if she does not object. However, if the interests of justice require, substantial defects in jury instructions in criminal cases may be considered. This exception will be invoked to correct errors in cases so closely balanced that fundamental fairness requires that the jury be properly instructed. People v. Reddick (1988), 123 Ill. 2d 184, 526 N.E.2d 141.

We find that the instant case involves such error. An accountability instruction should not be given when the evidence establishes that the defendant was a principal and not an accessory. Guilt predicated on an accountability theory is proper only if the other evidence is inconclusive as to the defendant’s direct participation in the crime. People v. Lusietto (1976), 41 Ill. App. 3d 205, 353 N.E.2d 385.

In the case at hand, the evidence clearly showed that the defendant was either a principal in the shooting of Gray, or that she played no part whatsoever. Gray testified that the defendant shot him. As such, under his testimony the defendant was guilty as the principal.

On the other hand, defense testimony showed that Noland was the principal and that the defendant did not participate in any manner in the shooting. Noland testified that he shot Gray and that he had •hidden the gun underneath his jacket in the waistband of his pants. Nothing in the defense’s evidence showed that the defendant knew Noland had a gun or that he intended to shoot Gray. As such, no evidence was presented showing that the defendant intended to promote or facilitate the commission of the shooting. Accordingly, we find that the instruction was improper, and we reverse the defendant’s convictions and remand for a new trial.

Although the defendant’s remaining issues raised on appeal are now moot due to our disposition of this case, we nonetheless will briefly address the improper remarks made by the prosecutor in closing argument.

During closing arguments, the prosecutor made the following remarks:

“Donna Crowder, what’s her interest, bias or prejudice? Well, she’s the Defendant here, she stands a chance of getting convicted. That’s one very large reason she should have of trying to slant her testimony, of trying to shift the blame away. It’s not pleasant to be convicted, especially at her age.”

We find these remarks to be improper. (See People v. Watts (1992), 225 Ill. App. 3d 604, 588 N.E.2d 405.) We condemn the prosecutor for making such comments since they clearly imply that a defendant is presumed to lie simply because of her status as a defendant. In addition, they diminish the defendant’s fundamental right to the presumption of innocence. As such, the prosecutor must refrain from making such comments in the future.

The judgment of the circuit court of Peoria County is reversed and this cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

McCUSKEY, P.J., and BARRY, J., concur.


author: PRESIDING JUSTICE McCUSKEY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LISA K. TACKETT, Defendant-Appellant.
    Third District
    No. 3-91-0930
    Opinion filed January 5, 1993.

      Thomas A. Karalis, of State Appellate Defender’s Office, of Ottawa, for appellant.
    William Herzog, State’s Attorney, of Kankakee (John X. Breslin and Lawrence Michael Kaschak, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE McCUSKEY

delivered the opinion of the court:

Following a bench trial, the defendant, Lisa K. Tackett, was found guilty of unlawful possession of more than 30 but less than 500 grams of a substance containing cannabis (Ill. Rev. Stat. 1991, ch. 56½, par. 704(d)). She was sentenced to one year of conditional discharge. Tackett appeals and we affirm.

The only facts necessary for purposes of this opinion are as follows. Tackett’s conviction was based on a police officer’s discovery of four marijuana plants in her car. An analysis of the plants by a forensic scientist revealed that the plants consisted of 99.5 grams of cannabis plant material.

On appeal, Tackett contends she was denied due process and equal protection of the laws because the prosecutor charged her with possession of more than 30 but less than 500 grams of a substance containing cannabis, rather than possession of less than five Cannabis sativa plants in violation of section 8(a) of the Cannabis Control Act (Act) (Ill. Rev. Stat. 1991, ch. 56½, par. 708(a)). Tackett argues that by charging her as he did, the prosecutor improperly rendered her ineligible to be sentenced to first-offender probation under section 10 of the Act. Tackett notes that such probation is available to all offenders convicted of possessing Cannabis sativa plants.

When an act violates more than one criminal statute, the State may prosecute under either statute, as long as it does not discriminate against any class of defendants. The prosecutorial decisions involving whether to prosecute or not and what charge to file or bring before a grand jury are decisions that generally rest in the prosecutor’s discretion. Just as a defendant has no constitutional right to elect which of two applicable statutes shall be the basis of his indictment and prosecution, neither is the defendant entitled to choose the penalty scheme under which he will be sentenced. United States v. Batchelder (1979), 442 U.S. 114, 60 L. Ed. 2d 755, 99 S. Ct. 2198; see also People v. Capsel (1986), 144 Ill. App. 3d 1057, 496 N.E.2d 10 (wherein this court held that it is not a violation of the separation of powers doctrine for a prosecutor to charge a defendant with a Class 3 felony of unlawful use or possession of weapons by a felon, rather than the Class A misdemeanor of unlawful possession of firearm ammunition); People v. Taylor (1986), 147 Ill. App. 3d 129, 497 N.E.2d 861.

In People v. O’Mahoney (1988), 169 Ill. App. 3d 194, 523 N.E.2d 635, the Fifth District Appellate Court noted that the offenses proscribed by sections 4 and 8 of the Act are different offenses. Section 8 pertains to the production or possession of sativa plants, and section 4, which is more inclusive, pertains to any substance containing cannabis. The court reasoned that a defendant could be prosecuted under both sections since they are different offenses. The court determined that a defendant could be convicted and sentenced for whichever offense was greater under the circumstances of the case. The court in O’Mahoney held that where a prosecutor has exercised his discretion and proceeded only on the greater offense, the trial court may not defeat that choice by allowing a defendant to elect to be sentenced for the lesser, uncharged offense. We find the reasoning of O’Mahoney applicable to the instant appeal.

Based upon the above-cited case law, we conclude that the prosecutor properly exercised his discretion in choosing to prosecute Tackett under section 4(d) of the Act. The fact that the legislature has provided two different sentencing schemes for the two offenses does not entitle Tackett to elect the scheme under which she shall be sentenced. We also find no basis for requiring that she be eligible for the same minimum sentence under each sentencing scheme. If Tackett is dissatisfied with the statutory sentencing schemes, in the words of the trial judge, she should “talk to the legislature.”

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

Affirmed.

SLATER and STOUDER, JJ., concur.


author: JUSTICE SCARIANO

text:
    ANGELA SARNO et al., Plaintiffs-Appellants, v. PAUL THERMEN et al., Defendants-Appellees.
    First District (2nd Division)
    No. 1-90-3365
    Opinion filed November 17, 1992.
    Rehearing denied January 22, 1993.

      Bixby, Lechner & Potratz, P.C., of Chicago (Gary P. Hollander and Gregory Oltman, of counsel), for appellants.
    Rudnick & Wolfe, of Chicago (William M. McErlean and Fredric A. Cohen, of counsel), for appellees.
   JUSTICE SCARIANO

delivered the opinion of the court:

Plaintiffs appeal from the judgment of the circuit court dismissing their action on the ground that it was barred by a prior judgment of the bankruptcy court.

Plaintiff Angela Sarno, a physical therapist, and Dr. Alfred Akkeron, an orthopedic specialist, formed a physical and occupational therapy service which they conducted under the name of Better Care, Ltd., and attorney Albert L. Grasso incorporated the enterprise for them. Originally, Sarno and Akkeron each owned 50% of the issued shares; however, Sarno became the sole officer, director and shareholder when it was discovered that Akkeron was prohibited from having any part in the corporation because he was not a licensed therapist. After a dispute arose between Sarno and Akkeron over the control of the business, Akkeron, Broadway Land Development Company (owned by Akkeron), and defendant Evans, Marshall & Pease, P.C. (EMP), filed an involuntary bankruptcy petition against Better Care. Defendants Paul Thermen (Thermen) and Larry Beller (Beller) are principals of EMP. The bankruptcy judge granted a “directed verdict” for the debtor and dismissed the petition for involuntary bankruptcy because of “a total lack of evidence that Better Care was generally not paying its debts as such debts became due.” However, the bankruptcy court reserved jurisdiction on the issue of bad faith under section 303(i)(2) of the Bankruptcy Code (11 U.S.C. §303(i)(2) (1988)), and in a subsequent ruling it found that each of the petitioning creditors had acted in bad faith in bringing the involuntary petition. After a further hearing on the issue of damages (In re Better Care, Ltd. (N.D. Ill. 1989), 97 Bankr. 405, 407), the court awarded Better Care almost all of the actual damages it sought and punitive damages as well. Better Care, 97 Bankr. at 414.

Thereafter, Samo and Better Care filed a “Complaint for Constructive Trust and Other Relief” in circuit court against Akkeron, Broadway Real Estate Corporation (BRE), Broadway Orthopedics, Ltd. (BOL), Grasso, EMP, Thermen and Beller. Specifically, in count III of their complaint plaintiffs alleged that “Grasso and Akkeron engaged in a combination and conspiracy designed to damage and ultimately destroy the Better Care business and Sarno’s interest therein.” They alleged further that “Thermen, Beller and EMP *** knowingly participated in and furthered the aforesaid combination and conspiracy by joining in the Involuntary Bankruptcy Petition.”

In ruling on defendants’ motion to dismiss plaintiffs’ original complaint, the court stated:

“I think collateral estoppel applies in this case because the claim that I read in the complaint is the same claim that Judge Katz tried in the Bankruptcy Court, I believe. And this turns on the interpretation of Paragraphs 35 and 36.
Basically, I see the claim that EMP, Thermen and Beller joined in the involuntary bankruptcy petition. And if there is something more to it, I do not believe it’ has been clearly pled.
The Bankruptcy Court is competent to hear the matters under Section 303 of 11 U.S. Code, but the complaint here charges the Defendants with no other wrongdoing than the wrongful bringing of the petition, the involuntary petition.
Accordingly, I think that the pleading here must be dismissed. And I will allow the Plaintiff the opportunity to replead the provisions.”

Later, in count IV of their first amended complaint, plaintiffs alleged:

“33. Thereafter, Grasso, Akkeron, BRE, BOL, Thermen, Beller and EMP engaged in a combination and conspiracy designed to damage and ultimately destroy the Better Care business and to terminate and destroy Sarno’s interest therein. These acts included the following:
a. Akkeron demanded that Samo release all of her interest in Better Care;
b. Akkeron and BOL caused Better Care’s computer system to be disconnected;
c. Akkeron and BRE locked Better Care out of its offices;
d. Akkeron stopped referring patients to Better Care for therapy and began providing therapy services through BOL through former Better Care employees;
e. Akkeron, as a purported creditor, EMP, as purported creditor, and Grasso’s law firm, as attorneys, in bad faith filed an involuntary bankruptcy petition in the United States Bankruptcy Court for the Northern District of Illinois.
34. As a result of the foregoing actions, the Better Care business has been destroyed. Akkeron and BOL have wrongfully and fraudulently kept for themselves profits which rightfully belonged to Better Care and Samo. Samo has lost the salary and perquisites associated with her position at Better Care, and the value of Sarno’s stock interest in Better Care has been destroyed.
35. The improper motives, bad faith and malicious conduct of Akkeron, BRE, Thermen and EMP has been determined in the cause styled In re Better Care, Ltd., 88 B 2658. The opinion in said case is reported at 97 B.R. 405, and a copy is attached hereto as Exhibit T and incorporated by reference herein.”

In dismissing plaintiffs’ first amended complaint, the court reasoned:

“Looking at Count 4 of the First Amended Complaint, it seems to me there’s [sic] only two things stated against EMP, Evans, Marshall and Pease, and that comes in Paragraph 33(e), where it says: ‘Akkeron, a purported creditor, EMP as purported creditor, and Grasso’s law firm of attorneys, in bad faith filed an involuntary bankruptcy petition in the United States Bankruptcy Court,’ et cetera.
Then in Paragraph 35, it says: The improper motives, bad faith and malicious conduct, of Akkeron, BRE, Thermen and EMP, have been determined to be — determined in the cause styled in re Better Care Limited, 88 B 2658, which I take it that’s the bankruptcy action.
So I don’t see that the complaint, Count 4, alleges that EMP did anything except those two acts.
Now there is — let’s see; I read that 33(e) — and I take it that the activities insofar as filing the involuntary bankruptcy petition in the court, was the subject of Judge Katz’s ruling in the Bankruptcy Court; and whatever improper motives, bad faith and malicious conduct of EMP there might have been, was deterimined in that hearing.”

At which point the following discussion ensued:

“MR. HOLLANDER: We agree. ***
Again, our point in all of this is Judge Katz could say to EMP: ‘You did something wrong. You shouldn’t have joined in the involuntary petition. My only jurisdiction is to award damages for the filing of the petition; those have proximately resulted from the filing of the petition.’
In this case we allege that that was an act in furtherance of the conspiracy with Dr. Akkeron and his companies, and with the law firm, and that the damages resulting from that are far beyond anything Judge Katz ever could have entertained.
THE COURT: Why? Is there some limit on the damages that he could order?
MR. HOLLANDER: Yes. He was limited to damages proximately resulting from the filing of the bankruptcy petition in favor of Better Care.
Now to just stand and say Miss Sarno is in privy [sic] with Better Care, I think begs the question, because in some regard she probably was; but there’s no commonality of interest when you’re talking about Miss Sarno’s personal damages such as the conversion of her stock.
That was never before the Court. We couldn’t implead her into the bankruptcy action, this individual into this corporate, involuntary bankruptcy, to try and recover the damages.
We also could not recover the damages for the destruction of the Better Care business that did not relate solely to the filing of the involuntary bankruptcy petition as was set forth.
THE COURT: As to those claims you have not charged EMP with doing those things.
MR. HOLLANDER: We claim them with legal responsibility for them under a conspiracy theory.
THE COURT: Paragraph 33: ‘You’re bound by a careful and strict reading of your complaint.’
33 charges conspiracy, but only 33(e) charges EMP.
I see no limitations insofar as the Bankruptcy Court’s range of remedies or amount of judgment that limited the Bankruptcy Court in any way.”

Plaintiffs assert that the bankruptcy court has no jurisdiction to adjudicate the State law issues raised in this case and that “[e]ven if the Bankruptcy Court had jurisdiction *** [it] exercised its discretion to abstain from hearing a dispute which raised only state law issues.” In declining to determine Akkeron’s setoff claim the bankruptcy court stated:

“This Court observes that Akkeron has raised numerous claims for set-off in his petition in addition to the one based upon the $51,000 initial funding referred to in the March Opinion. These claims raise a plethora of state law issues, including a guarantor’s right to subrogation and reimbursement and the duty to pay rent after a constructive eviction, just to name a few. These additional legal issues also raise additional factual issues for which there is no foundation in the record, unlike the $51,000 initial funding claim for which there is a foundation in the present record. Additionally, Better Care correctly points out that, once state law claims can be made, Better Care may have a few of its own. This Court can think of trade disparagement and intentional interference with business relationships, just to name a few, although this Court expresses no opinion as to the existence and/or merits of either party’s claims, as pointed out on Page 25 of the March Opinion.
In view of this Pandora’s box Akkeron has decided to open, this Court is convinced that this is an appropriate occasion for this Court to abstain from any further adjudication of Akkeron’s set-off claims. This Court has previously discussed the principles of abstention as they apply to this case in its original Findings of Fact and Conclusions of law, dated May 27, 1988, at Page 9. This Court believes those principles to be all the more applicable at this juncture because all that is left in this case are conflicting claims based solely upon state law issues. ***
As a result this Court will deny Akkeron’s Petition for Set-Off and will leave the parties to their state law remedies, if any.” Memorandum Opinion, April 12,1989.

Similarly, in declining to condition an award of damages under section 303(i) upon Better Care’s delivering a general release to the petitioning creditors, who had requested it, the bankruptcy court stated, “Better Care may have numerous other state or federal causes of action against the petitioning creditors, none of which would be preempted or discharged by this judgment.” (Better Care, 97 Bankr. at 415.) However, the court “expresse[d] no opinion regarding the existence or merits of any additional claims of Sarno or Better Care or as to the application of the principle of res judicata or collateral estoppel to any such claim or claims.” Better Care, 97 Bankr. at 416.

Defendants respond that plaintiffs’ State law conspiracy claim against them is based solely on the wrongful filing of the involuntary petition and is therefore barred by the bankruptcy court’s final judgment under the doctrines of res judicata, collateral estoppel, and election of remedies. In addition, they assert that section 303(i) of the Bankruptcy Code preempts a State law remedy.

We address first the issue of preemption. In connection with the filing of an involuntary petition for bankruptcy, section 303(i) of the Bankruptcy Code provides:

“If the court dismisses a petition under this section other than on consent of all petitioners and the debtor, and if the debtor does not waive the right to judgment under this subsection, the court may grant judgment—
(1) against the petitioner and in favor of the debtor for—
(A) costs; or
(B) a reasonable attorney’s fee; or
(2) against any petitioner that filed the petition in bad faith, for—
(A) any damages proximately caused by such filing; or
(B) punitive damages.” 11 U.S.C. §303(i) (1988).

It is clear then that since section 303(i) awards damages to the debtor, and that Better Care was the alleged debtor in the bankruptcy proceeding (Better Care, 97 Bankr. at 406), only that corporation and not Sarno would be subject to the preemptive effect of section 303(i). As previously noted, in declining to condition an award of damages under section 303(i) upon Better Care’s delivering a general release to the petitioning creditors, the bankruptcy judge stated, “Better Care may have numerous other state or federal causes of action against the petitioning creditors, none of which would be. preempted or discharged by this judgment” (Better Care, 97 Bankr. at 415); but the judge “expresse[d] no opinion regarding the existence or merits of any additional claims of Sarno or Better Care or as to the application of the principle of res judicata or collateral estoppel to any such claim or claims.” (Better Care, 97 Bankr. at 416.) In support of this latter statement, the judge cited Paradise Hotel Corp. v. Bank of Nova Scotia (3d Cir. 1988), 842 F.2d 47, for the proposition that a “debtor aggrieved by [an] involuntary petition may pursue remedies outside bankruptcy court.” Better Care, 97 Bankr. at 416 n.5.

In Paradise Hotel, the bank filed an involuntary chapter 7 petition for bankruptcy against the hotel, and the hotel responded by filing a voluntary petition under chapter 11. (Paradise Hotel, 842 F.2d at 48.) The hotel requested and was granted a stay of the involuntary chapter 7 petition in order to preserve its potential claims for damages caused by the wrongful filing of the petition until they could be determined with more certainty. After the completion of the chapter 11 proceeding, the hotel brought an action in district court for malicious prosecution, abuse of process, racketeering, false representation, intentional interference with business relationships and breach of trust against the bank for its bad-faith filing of the involuntary petition. The bank moved to dismiss for failure to state a claim. The district court granted the motion, which it treated as a request for summary judgment, in favor of the bank, concluding that the bank was entitled to participate in the chapter 7 filing, despite its fully secured status, and that the hotel’s chapter 11 petition constituted an admission that it was generally unable to pay its debts as they became due. The court also held that the hotel waived its right to object to any defect in the filing of the involuntary petition by failing to contest its validity. (Paradise Hotel, 842 F.2d at 48-49.) With respect to the issue of waiver, the bank argued on appeal that the chapter 7 proceeding should be given res judicata effect, and that the remedy provided by section 303(i)(2) was exclusive. (Paradise Hotel, 842 F.2d at 51.) The court of appeals reversed.

As to the issue of waiver, the court found that the hotel responded to the involuntary petition, specified defects in the petition and requested a stay. The court also found that there was no adverse adjudication barring the hotel from asserting that the petition was defective. Accordingly, the court found that the hotel did not waive its claims. The court also noted that the absence of an adverse adjudication was fatal to the bank’s contention that the chapter 7 proceeding should be given res judicata effect. (Paradise Hotel, 842 F.2d at 51-52.) As to the exclusive remedy issue, the court stated that although section 303(i)(2) was intended to permit a bankruptcy court to adjudicate claims in a chapter 7 proceeding like those asserted by the hotel, it does not require that all such claims be so adjudicated. Moreover, the court believed “it would be inconsistent with the overall scheme of the Code to find that §303(i)(2) is an exclusive remedy for such claims.” (Paradise Hotel, 842 F.2d at 52.) The court reasoned that a debtor should not be forced to forego its right to convert a chapter 7 proceeding to a chapter 11 proceeding in order to pursue his or her bad-faith claims. (Paradise Hotel, 842 F.2d at 52.) “Accordingly, [the court] decline[d] to hold that §303(i)(2) [was] an exclusive remedy in a situation of this kind.” (Paradise Hotel, 842 F.2d at 52.) Because the court concluded that the hotel was free to contend that it was generally paying its debts as they became due and that the bank maliciously represented to the contrary, it remanded the case for further proceedings on the hotel’s claims for malicious prosecution, abuse of process, false representation and intentional interference with business relationships. Paradise Hotel, 842 F.2d at 53.

In contrast, Collier’s treatise on bankruptcy suggests that section 303(i) may be an exclusive remedy. Collier reports that the court in Paradise Hotel “decided, without citation to authority, that section 303(i) of the Code is not an exclusive remedy for an aggrieved debtor seeking damages from a petitioner who filed in bad faith.” However, Collier’s continues, “[t]he damages allowable under section 303(i) will include all damages proximately caused by the filing. The damage claim may include the torts of malicious prosecution or defamation and all business losses. *** Petitioning creditors who are liable for damages may request that the judgment for damages include a provision for obtaining a general release from the debtor. This should avoid a subsequent claim by the debtor for additional damages, or the assertion of a separate cause of action in a state court proceeding, if such a claim exists with the remedy now available under section 303(i).” 2 L. King, Collier on Bankruptcy §303.39 (15th ed. 1992).

In addition, as defendants point out, two California State court cases have held that section 303(i) is an exclusive remedy. (Gene R. Smith Corp. v. Terry’s Tractor, Inc. (1989), 209 Cal. App. 3d 951, 257 Cal. Rptr. 598, cert. denied (1990), 494 U.S. 1016, 108 L. Ed. 2d 493, 110 S. Ct. 1318; Idell v. Goodman (Cal. Ct. App. 1990), 224 Cal. App. 3d 262, 273 Cal. Rptr. 605.) In Gene R. Smith Corp., Terry’s Tractor petitioned that Smith be adjudged an involuntary bankrupt. Smith successfully moved to dismiss the petition and then filed an action for malicious prosecution and abuse of process in State court against Terry’s Tractor. The court dismissed the complaint on the grounds that it was preempted by Federal law and that the State court had no subject matter jurisdiction over those claims. The court relied on dicta in Gonzales v. Parks (9th Cir. 1987), 830 F.2d 1033, in reaching its decision, and found the following policy reasons outlined there to be persuasive.

“ ‘Congress’ authorization of certain sanctions for the filing of frivolous bankruptcy petitions should be read as an implicit rejection of other penalties, including the kind of substantial damage awards that might be available in state court tort suits. Even the mere possibility of being sued in tort in state court could in some instances deter persons from exercising their rights in bankruptcy. In any event it is for Congress and the federal courts, not the state courts, to decide what incentives and penalties are appropriate for use in connection with the bankruptcy process and when those incentives or penalties shall be utilized.’ ” (Emphasis omitted.) Gene R. Smith Corp., 209 Cal. App. 3d at 954, 257 Cal. Rptr. at 599-600, quoting Gonzales, 830 F.2d at 1035-36.

We find particularly appealing the court’s further statement that section 303(i) “reflects Congress’ intent that the case by case development of the law relating to ‘bad faith’ in this context should be accomplished in federal courts and not in state courts,” and that it would be “inconsistent with this legislative intent, for state courts to develop a different, more liberal definition of ‘bad faith’ for malicious prosecution purposes than that developed in the federal system. Different standards defining identical conduct adds an unnecessary and confusing component to the uniform law to be applied in bankruptcy proceedings.” (209 Cal. App. 3d at 954-55, 257 Cal. Rptr. at 600.) The court also found that limiting Smith to a remedy under section 303(i) did not deprive him of his right to a jury trial. (Gene R. Smith Corp., 209 Cal. App. 3d at 955-56, 257 Cal. Rptr. at 600-01.) We find the reasoning expressed in the California cases exceedingly convincing. (See also In re Reid (7th Cir. 1988), 854 F.2d 156, 162 (in which the court held that a common law claim for attorney fees based on the wrongful appointment of an interim trustee was preempted by section 303(i)).) Therefore, we decline to follow Paradise Hotel and hold that Better Care’s State law conspiracy claim against EMP, Thermen and Beller is preempted by the exclusive remedy provided to it as a debtor under section 303(i) of the Bankruptcy Code.

As previously noted, only the State law claim of Better Care, the debtor, and not Sarno, is preempted by section 303(i). We must now examine whether Sarno’s State law claim for conspiracy is barred by the doctrines of res judicata, collateral estopppel or election of remedies. “The doctrine of res judicata provides that ‘a final judgment rendered by a court of competent jurisdiction on the merits is conclusive as to the rights of the parties and their privies, and, as to them, constitutes an absolute bar to a subsequent action involving the same claim, demand or cause of action.’ (Emphasis added.) [Citation.] When res judicata is established ‘as a bar against the prosecution of a second action between the same parties upon the same claim or demand *** it is conclusive not only as to every matter which was offered to sustain or defeat the claim or demand, but as to any other matter which might have been offered for that purpose. [Citations.]’ [Citation.]” (Housing Authority v. YMCA (1984), 101 Ill. 2d 246, 251-52.) Here, the circuit court declined to apply the doctrine of res judicata “because the Bankruptcy Court may not have been a competent Court to hear all manner of causes of action or claims for damages herein.”

At this juncture a review of jurisdiction over bankruptcy matters would be helpful. In response to the Supreme Court’s decision in Northern Pipeline Construction Co. v. Marathon Pipe Line Co. (1982), 458 U.S. 50, 73 L. Ed. 2d 598, 102 S. Ct. 2858, which held that the Bankruptcy Reform Act of 1978 unconstitutionally conferred Article III judicial power on non-Article III judges, Congress enacted the Bankruptcy Amendments and Federal Judgeship Act of 1984. As a result, jurisdiction over bankruptcy matters is vested in the Federal district courts. Section 1334(a) of the Judicial Code provides that “the district courts shall have original and exclusive jurisdiction of all cases under title 11.” (28 U.S.C. §1334(a) (1988).) Section 1334(b) provides that “the district courts shall have original but not exclusive jurisdiction of all civil proceedings arising under title 11, or arising in or related to cases under title 11.” (28 U.S.C. §1334(b) (1988).) Section 1334(c)(1) permits a district court to abstain “in the interest of comity with State courts or respect for State law *** from hearing a particular proceeding arising under title 11 or arising in or related to a case under title 11.” (28 U.S.C. §1334(c)(1) (1988).) Section 1334(c)(2) mandates that the district court abstain “[u]pon timely motion of a party in a proceeding based upon a State law claim or State law cause of action, related to a case under title 11 but not arising under title 11 or arising in a case under title 11, with respect to which an action could not have been commenced in a court of the United States absent jurisdiction under this section, *** if an action is commenced, and can be timely adjudicated, in a State forum of appropriate jurisdiction.” 28 U.S.C. § 1334(c)(2) (1988).

Pursuant to section 157 of the Judicial Code, “[e]ach district court may provide that any or all cases under title 11 and any or all proceedings arising under title 11 or arising in or related to a case under title 11 shall be referred to the bankruptcy judges for the district[ ]” (28 U.S.C. §157(a) (1988)), who function as a unit of the district court (28 U.S.C. §151 (1988)). “Bankruptcy judges may hear and determine all cases under title 11 and all core proceedings arising under title 11, or arising in a case under title 11, referred under subsection (a) of this section, and may enter appropriate orders and judgments, subject to review under section 158 of this title.” (28 U.S.C. §157(b)(1) (1988).) However, although “[a] bankruptcy judge may hear a proceeding that is not a core proceeding but that is otherwise related to a case under title 11[,] [i]n such proceeding, the bankruptcy judge shall submit proposed findings of fact and conclusions of law to the district court, and any final order or judgment shall be entered by the district judge.” (28 U.S.C. §157(c)(1) (1988).) This is true “whether or not an appeal has been taken by the parties.” In re K. & L. Limited (7th Cir. 1984), 741 F.2d 1023, 1028.

Accordingly, previously unasserted claims can be barred by res judicata only if they would have been core proceedings in bankruptcy court. (Barnett v. Stern (7th Cir. 1990), 909 F.2d 973, 979, citing Howell Hydrocarbons, Inc. v. Adams (5th Cir. 1990), 897 F.2d 183, 189-90. Contra Sanders Confectionery Products Inc. v. Heller Financial, Inc. (6th Cir. August 17, 1992), No. 90-2039/2040; Sure-Snap Corp. v. State Street Bank & Trust Co. (2d Cir. 1991), 948 F.2d 869.) Core proceedings generally concern the administration and liquidation of the bankrupt’s estate (28 U.S.C. §§157(2)(A) through (2)(0) (1988)) and “include most matters which are integral to the adjudication of bankruptcy or were traditionally before the bankruptcy court.” (In re Watson-Mahaney, Inc. (N.D. Ill. 1987), 70 Bankr. 578, 581.) A proceeding is considered a core proceeding if it invokes a substantive right provided by title 11 or if it could arise only in the context of a bankruptcy case. (Barnett, 909 F.2d at 981, citing In re Wood (5th Cir. 1987), 825 F.2d 90, 97.) In addition, a core proceeding must involve a decision that ultimately affects the distribution of the debtor’s assets. (Howell, 897 F.2d at 190.) Although “the mere fact that [a] claim raises issues of state law does not preclude a holding that the adversary proceeding is core[ ]” (In re Manville Forest Products Corp. (2d Cir. 1990), 896 F.2d 1384, 1389), “core proceedings exclude claims that are essentially state common law actions. *** Non-core ‘related’ proceedings, on the other hand, are those matters that are traditional state law actions, not made subject to a federal rule of decision, but that are related, though only peripherally, to a pending bankruptcy case.” (In re Hudson Oil Co. (D. Kan. 1986), 68 Bankr. 735, 739.) “Related matters are those non-core proceedings ‘that, in the absence of bankruptcy, could have been brought in a district court or state court.’ ” (Hudson, 68 Bankr. at 741, quoting In re Colorado Energy Supply (10th Cir. 1984), 728 F.2d 1283, 1286; Interconnect Telephone Services, Inc. v. Farren (S.D.N.Y. 1986), 59 Bankr. 397, 400.) “Moreover, the proceeding must be such that ‘the outcome of that proceeding could conceivably have [an] effect on the estate being administered in bankruptcy.” Hudson, 68 Bankr. at 741, quoting Pacor, Inc. v. Higgins (3d Cir. 1984), 743 F.2d 984, 994.

In this case, it is clear that Sarno’s State law conspiracy claim, although based in part on the wrongful filing, would not have been a core proceeding in bankruptcy. Therefore, we hold that Sarno’s State law conspiracy claim is not barred by res judicata.

“The doctrine of collateral estoppel applies when a party or someone in privity with a party participates in two separate and consecutive cases arising on different causes of action and some controlling fact or question material to the determination of both causes has been adjudicated against that party in the former suit by a court of competent jurisdiction. [Citation.] The adjudication of the fact or question ‘in the first cause will, if properly presented, be conclusive of the same question in the later suit’ [citation], but ‘the judgment in the first suit operates as an estoppel only as to the point or question actually litigated and determined and not as to other matters which might have been determined.’ (Emphasis added). [Citations.]” (Housing Authority, 101 Ill. 2d at 252.) “This doctrine may be invoked if (1) the issue decided in the prior adjudication is identical with the one presented in the current suit; (2) the prior suit was terminated with a final judgment on the merits; and (3) the party against whom estoppel is asserted was a party or in privity with a party in the prior suit. [Citations.]” In re Nau (1991), 209 Ill. App. 3d 805, 811.

In Kennedy v. First National Bank (1985), 129 Ill. App. 3d 633, 638, the court held that collateral estoppel did not bar the issue of whether the president and majority shareholder of a corporation was injured in his other business affairs and individually in his capacity as guarantor of the corporation’s indebtedness “because (1) such issue was not actually or necessarily decided in the bankruptcy proceeding, and (2) the Bankruptcy Court expressly determined that it had no jurisdiction over such issue.” Similarly, in Telegraph Savings & Loan Association v. Schilling (1984), 105 Ill. 2d 166, cert. denied (1986), 474 U.S. 1069, 88 L. Ed. 2d 801, 106 S. Ct. 829, the court determined that collateral estoppel did not preclude the resolution of a State law claim where the Federal district and appellate courts recognized that the State law claims were distinct and declined to address them. See also Sweeney v. Citicorp Person-to-Person Financial Center, Inc. (1987), 157 Ill. App. 3d 47, 51, appeal denied (1987), 116 Ill. 2d 576 (in which plaintiff was allowed to bring State law usury claims in State court after the bankruptcy court had ruled for the plaintiff on the plaintiff’s motion requesting that it abstain from exercising its jurisdiction over those claims). But see Union Federal Savings & Loan Association, 199 Ill. App. 3d at 1040; Payne v. Country Mutual Insurance Co. (1990), 195 Ill. App. 3d 995; Johnson v. Nationwide Business Forms, Inc. (1981), 103 Ill. App. 3d 631.

As previously noted, the bankruptcy court awarded damages resulting from the filing of the involuntary petition only to Better Care, and although the court also awarded it damages for the value of Sarno’s time of which Better Care was deprived while she was defending the involuntary petition (Better Care, 97 Bankr. at 414), the issue of Sarno’s individual damages was not actually or necessarily litigated in bankruptcy court. Therefore, Sarno’s State law claim for conspiracy is not barred by collateral estoppel.

However, Sarno is not entitled to all the relief she is seeking. In their amended complaint plaintiffs prayed for judgment against each defendant as follows:

“a. That the defendants be required to account for all funds received by Akkeron and BOL from therapy services on their own behalf after the date Better Care was established;
b. That a constructive trust be imposed on all funds received by Akkeron and BOL from rendering therapy services on their own behalf after the date Better Care was established;
c. That Better Care be awarded damages for its lost business;
d. That Sarno be awarded damages for her salary and perquisites, and for the value of her Better Care shares;
e. That punitive damages be awarded in favor of Sarno and Better Care;
f. That the court grant any further relief that is just.”

A “stockholder of a corporation has no personal or individual right of action against third persons for damages that result indirectly to the stockholder because of an injury to the corporation.” (Twohy v. First National Bank (7th Cir. 1985), 758 F.2d 1185, 1194, citing Poliquin v. Sapp (1979), 72 Ill. App. 3d 477, 480.) In Kennedy, the court held that where all of the alleged wrongful acts of the bank were directed at the corporation, which in turn caused damage to the shareholder in his individual capacity, the injury to the shareholder was derivative of the injury to the corporation. (Kennedy, 129 Ill. App. 3d at 637.) Here, the conspiracy is alleged to have injured the corporation and Sarno’s interests therein. Any injury to Sarno in her capacity as a shareholder is derivative of the injury to the corporation. (Kennedy, 129 Ill. App. 3d at 637, citing Stein v. United Artists Corp. (9th Cir. 1982), 691 F.2d 885.) However, shareholders “injured by virtue of the diminution in value of their shares may not recover directly for their losses, but are compensated indirectly if the corporation recovers because its assets are replenished.” (Kennedy, 129 Ill. App. 3d at 637, citing Stein, 691 F.2d 885.) Therefore, Sarno may not recover for the lost value of her stock.

However, Sarno is also claiming damages based on her lost salary and perquisites.

“Where there is no showing that plaintiff himself had been injured in any capacity other than in common with his fellow stockholders, the cause of action belongs to the corporation [citation], and a stockholder may not seek relief on his own behalf. However, this general principle has no application where the wrongful acts are not only against the corporation but are also violations of a duty arising from a contract or otherwise, and owed directly by the wrongdoer to the stockholders. [Citation.] A suit brought by a stockholder upon a personal claim is by its nature distinguishable from a proceeding to recover damages or other relief for the corporation. [Citation.] Not every allegation of wrongdoing is a Simon-pure charge of individual injury, but a court must preliminarily determine if the ‘gravamen’ of the pleadings states injury to the plaintiff upon an individual claim as distinguished from an injury which indirectly affects the shareholders or affects them as a whole. [Citation.]” Zokoych v. Spalding (1976), 36 Ill. App. 3d 654, 663.

Therefore, if Sarno is successful in proving her charge of conspiracy, she would be entitled to recover only those personal damages that she might be able to prove. In addition, we note that “[i]f a civil conspiracy is found to exist, punitive damages may be had in an appropriate case under the normal standards pertaining to the imposition of punitive damages.” M. Polelle & B. Ottley, Illinois Tort Law 390 (1985).

“The doctrine of election of remedies provides that the adoption of one or more coexisting remedies precludes a resort to the other remedies.” (Builders Plumbing Supply Co. v. Zambetta (1986), 143 Ill. App. 3d 188, 190.) The doctrine applies “where (1) double compensation is threatened, (2) defendant has been misled by plaintiff’s conduct and has changed his position in reliance upon it, or (3) the doctrine of res judicata can be applied. [Citations.]” (Zambetta, 143 Ill. App. 3d at 191.) In addition, contrary to the court’s pronouncement in Zambetta, the remedies sought by the plaintiff must be inconsistent. (Streams Condominium No. 3 Association v. Bosgraf (1991), 219 Ill. App. 3d 1010, 1015, citing Harris v. Manor Health- current remedies that are not inconsistent with each other ***.’ ” (Harris, 111 Ill. 2d at 366, quoting Jackson v. Industrial Board (1917), 280 Ill. 526, 531.) Here, given the limitations we have imposed on recoverable damages, double compensation is not threatened. In addition, there is no evidence of detrimental reliance. Finally, as we have noted above, res judicata does not apply. Therefore, the doctrine of election of remedies does not prevent Sarno from recovery.

For the above-stated reasons, we affirm the circuit court’s dismissal of the State law conspiracy claim as it applies to Better Care, the debtor, but we do so on the ground that section 303(i) is the exclusive remedy for a debtor aggrieved by the bad-faith filing of an involuntary petition in bankruptcy. We reverse the circuit court’s dismissal on the basis of collateral estoppel of the State law conspiracy claim as it applies to Sarno, since the issue of her damages was not actually or necessarily litigated by the bankruptcy court, and we remand for further proceedings consistent with the views expressed herein.

Affirmed in part; reversed in part, and remanded.

DiVITO and McCORMICK, JJ., concur.

       Broadway Realty was later substituted for Broadway Land. In re Better Care, Ltd. (N.D. Ill. 1989), 97 Bankr. 405, 407 n.1.

       The rather quaint practice of granting “directed verdicts” in cases where the court sits without a jury is not explained in the briefs or in the record.


author: JUSTICE RIZZI

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FRANK C. ALERTE, JR., Defendant-Appellant.
    First District (3rd Division)
    No. 1-90-2003
    Opinion filed January 22, 1992.
    Rehearing denied February 19, 1993.

      Randolph N. Stone, Public Defender, of Chicago (Evelyn G. Baniewicz, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and Rebecca Davidson, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE RIZZI

delivered the opinion of the court:

Following a jury trial in 1980, defendant, Frank C. Alerte, Jr., was convicted of murder and sentenced to 30 years’ imprisonment in the Hlinois Department of Corrections. (Ill. Rev. Stat. 1979, ch. 38, par. 9-1.) Defendant’s conviction was affirmed on appeal. After defendant exhausted his State court remedies, he petitioned the United States District Court for a writ of habeas corpus. The district court granted a writ, but stayed its execution for 120 days in order to allow the State to retry defendant. The United States Court of Appeals affirmed the district court’s order. Defendant received a bench trial in 1990. Defendant was convicted of murder again and sentenced to 25 years’ incarceration.

The following issues are before this court for review: (1) whether the trial court erred when it denied defendant’s motion to dismiss; and (2) whether defendant was proven guilty beyond a reasonable doubt. We affirm.

On January 12, 1980, defendant stabbed Paul Kelly to death. Kelly was a student at DePaul University in Chicago, Illinois. Kelly lived in a dormitory named Corcoran Hall. Defendant was coach of the DePaul tennis team of which the victim was a member.

On the evening of January 12, defendant visited Kelly at Corcoran Hall. The two men were observed playing ping-pong there at approximately 6 p.m. Shortly thereafter, they left the dormitory.

At approximately 7 p.m., Sharon Smith, who was looking through a window in the lobby of Corcoran Hall, observed two men running across the yard towards the dormitory. Smith’s view of the men was obstructed when they moved closer to the door. Several seconds later, she heard the sound of a key scraping against the lock on the door. Smith remained in the lobby for a few minutes and then went to her room.

Jeff Amier saw two men standing close together in the doorway of Corcoran Hall around 7 p.m. Amier noticed that the taller of the two men had his back to the wall of the dormitory, and the shorter man was facing him. Amier heard grunting noises as he walked by the men.

Carol Stusaitis was also in the yard outside of Corcoran Hall around 7 p.m. Stusaitis noticed that the shorter man was supporting the taller man, who was slouched against the wall of the building. As she approached Corcoran Hall, she observed that the taller man tried to move closer to the dormitory door but defendant moved with him in order to “block him” so that Stusaitis “couldn’t see him.” Stusaitis asked defendant what was going on, and defendant told her that the taller man was intoxicated and that he would be fine. As Stusaitis turned to walk into the building, she saw defendant’s left arm move backward, and she observed a shiny object in his hand. She saw the taller man clasp his hand to his throat, and she observed that his neck was red. Stusaitis then put her key in the door and asked the men again if they wanted to come inside. The shorter man said no. Stusaitis then entered the building. Stusaitis later identified defendant as the shorter man whom she saw near the dormitory that evening.

Dan Lyons approached Corcoran Hall shortly after Stusaitis went inside. Lyons observed defendant holding Kelly by the back of his jacket. Lyons noticed that defendant was wearing light-colored pants and a dark blue coat. Lyons saw the shorter man pull Kelly toward the bushes. When Lyons reached the doorway of Corcoran Hall, he asked defendant what was going on. Defendant told Lyons that Kelly was “just drunk,” that he would “get over it,” and that he would “be alright.” Lyons bent down next to Kelly and noticed that Kelly’s neck was cut. Lyons told defendant that the victim appeared to be bleeding. Lyons then entered Corcoran Hall and telephoned the authorities. While making the call, he saw David Sinkus and asked Sinkus to bring the victim inside because of the cold weather.

Sinkus, who knew both Kelly and defendant, ran outside and observed Kelly lying in the bushes, and defendant standing nearby. When Sinkus asked defendant to help him carry the victim inside, defendant declined to assist Sinkus and told him not to move the victim. Sinkus described defendant as being calm. Sinkus then went inside to tell the resident advisor what had occurred. When Sinkus went back outside several minutes later, defendant was gone.

Ivanhoe Hall observed defendant leave the crime scene. As Hall approached defendant, he saw defendant push a knife into his pocket.

Detectives Lee Epplen and Lawrence Flood were assigned to investigate Kelly’s death. After speaking to several people in Corcoran Hall, the detectives obtained defendant’s address from the resident advisor. Detectives Flood and Epplen then drove to 8018 South Peoria in Chicago, Hlinois, where they were admitted by defendant. They asked defendant to accompany them to the police station. Detective Epplen went upstairs with defendant to allow him to change his clothes. Detective Epplen also asked defendant to bring the clothing that he was wearing earlier in the day. Defendant gave Epplen his blue top coat and told him that he was wearing the same pants. Defendant also pointed to a grey sweater. At that time Detective Epplen noticed reddish-brown stains on the sweater, and he took the sweater. The detectives then placed defendant under arrest and drove him to the Chicago Police Area 6 station.

During the drive, defendant was advised of his Miranda rights. Defendant thereafter admitted that he had been with the victim that day at Corcoran Hall until 7 p.m.

The detectives and defendant arrived at the police station around 11 p.m. At that time, defendant was again advised of his Miranda rights. Defendant then gave Detective Flood a detailed account of his activities that day. Defendant told Detective Flood that he and Kelly were walking towards the train station, when Kelly stated that he had forgotten something. Defendant maintained that Kelly then walked back to Corcoran Hall in order to obtain what he had forgotten. Defendant claimed to have waited 15 minutes before he went to look for Kelly, whom he found leaning against the door. Defendant stated that he then attempted to lift Kelly up. Defendant admitted to Detective Flood that he told a man that Kelly was drunk, and he stated that although he did not see any blood on the victim, other people told him that Kelly was bleeding. In this initial conversation, defendant denied ever speaking to a woman, and he claimed that he left the scene because the victim was in good hands.

Defendant was then interviewed by Assistant State’s Attorney Howard Regenbogen between 12:30 and 1 a.m. on the morning of January 13, 1980. Defendant told Regenbogen that he saw Kelly leaning against the door of the dormitory and that the victim’s coat was zipped up to his neck. Defendant admitted to Regenbogen that he told both a man and a woman that Kelly was intoxicated.

Later that morning, Detective Flood spoke to defendant again. During this interview, defendant admitted that he had seen and spoken to a woman, and that he assured her that Kelly was drunk and that he would take care of Kelly. At that time, Detective Flood noticed a cut on the back of defendant’s right thumb and a second cut on defendant’s right index finger.

At defendant’s first trial, Dr. Euphil Choi testified that he conducted an autopsy on the victim’s body. Dr. Choi stated that the victim was stabbed 26 times leaving wounds in his torso, legs, and neck. Dr. Choi told the court that the victim’s death was caused by multiple stab wounds which penetrated his heart and lungs. Dr. Choi also testified that the toxicology test conducted on the victim revealed that the victim had not consumed alcohol. In addition, Arnier, Hall, Lyons, Sinkus, Smith, and Stusaitis all testified on behalf of the State. Defendant was found guilty of murder and his conviction was affirmed on appeal. See People v. Alerte (1983), 120 Ill. App. 3d 962, 458 N.E.2d 1106.

Defendant then petitioned the United States District Court for the Northern District of Illinois for a writ of habeas corpus. Defendant alleged that he was denied due process of law because the State’s summation to the jury was inaccurate. On August 30, 1989, the district court granted the writ but stayed its execution for 120 days in order to allow the State to retry defendant. (See United States of America ex rel. Alerte v. Lane (N.D. Ill. 1989), 725 F. Supp. 936.) This order was docketed on September 1, 1989. On September 9, 1989, the Attorney General of Illinois (Attorney General) appealed to the United States Court of Appeals for the Seventh Circuit. In addition, the Attorney General moved to alter or amend the judgment issuing the writ on September 12, 1989. (Fed. R. Civ. P. 59(e).) On October 23, 1989, the district court .denied the State’s motion to alter or amend. The order dated October 23, 1989, was docketed on November 13, 1989. In December of 1989, the Attorney General made an emergency motion for stay pending an appeal before the Seventh Circuit. This motion was granted on December 29, 1989. On March 13, 1990, the Seventh Circuit affirmed the district court’s stay of the writ. (See Alerte v. McGinnis (7th Cir. 1990), 898 F.2d 69.) Defendant then made a motion to dismiss in the circuit court of Cook County on March 15, 1990, on the basis that the State violated section 103-5(a) of the Code of Criminal Procedure of 1963 (Speedy Trial Act) (Ill. Rev. Stat. 1989, ch. 38, par. 103-5(a)). The trial court denied defendant’s motion. Defendant was tried again for murder in 1990.

At defendant’s second trial, the testimony of most of the witnesses at the first trial was entered into the record by way of stipulation that the testimony of those witnesses, if called again, would be substantially the same as it was when they testified against defendant in 1980. In addition, Mary Ann Caporusso, chief serologist for the Chicago police department, testified on behalf of the State. Caporusso was the only witness to testify in court at defendant’s second trial.

Caporusso testified that she examined several samples of the victim’s blood, the victim’s clothing, and defendant’s clothing. First, Caporusso tested a sample of the victim’s blood obtained during the autopsy. Caporusso determined that the victim had type O blood. She also found that the clothing the victim was wearing when he was killed was saturated with type O blood. Caporusso classified the blood on defendant’s clothing as type B. She also found that there was a negligible amount of type A blood on defendant’s sweater and jacket. Caporusso also observed an “H reaction” when she tested one of the stains on defendant’s jacket. An “H reaction” indicates the presence of type O blood. Caporusso concluded that the blood found on defendant’s clothing was type B. During cross-examination, Caporusso explained that her finding of type B blood was not inconsistent with defendant’s actual blood type AB. At the close of all the evidence, defendant was convicted of murder again and sentenced to 25 years’ imprisonment in the Dlinois Department of Corrections.

On appeal, defendant first contends that the trial court erred when it denied his motion to dismiss because the State violated section 103-5(a) of the Speedy Trial Act (Ill. Rev. Stat. 1989, ch. 38, par. 103-5(a)) when it failed to commence his trial within 120 days after the district court ordered a retrial. Defendant argues that his second trial began 195 days after the district court’s order. Defendant contends that the 120-day term commenced when the district court’s grant of habeas corpus was docketed on September 1, 1989, and that it ran therefrom until the Seventh Circuit Court of Appeals ruled to stay the writ on March 13, 1990.

The State maintains that defendant was properly granted a new trial when the State courts regained jurisdiction over defendant after a final judgment was issued by the Seventh Circuit affirming the district court’s denial of the State’s motion to alter and amend. We agree.

The People have correctly noted that there is no precedent which defines exactly when the 120-day term begins to run where a defendant is brought from the Federal court system back into the State judicial system. The Speedy Trial Act provides that “[e]very person in custody in this State for an alleged offense shall be tried by the court having jurisdiction within 120 days from the date he was taken into custody.” (Ill. Rev. Stat. 1989, ch. 38, par. 103-5(a).) When a defendant prevails in an Illinois court of review, a mandate issues which, when properly docketed, commences the running of the 120-day term. (People v. Worley (1970), 45 Ill. 2d 96, 98, 256 N.E.2d 751, 752.) However, Supreme Court Rule 604(a)(4) provides that “[t]he time during which an appeal by the State is pending is not counted for the purpose of determining whether an accused is entitled to discharge under section 103-5 of the Code of Criminal Procedure.” 134 Ill. 2d R. 604(a)(4); see People v. O’Malley (1982), 108 Ill. App. 3d 823, 827, 439 N.E.2d 998, 1000.

Accordingly, we find in the present case that the time during which the State’s appeal was pending in Federal court may not be counted for purposes of section 103-5(a) of the Speedy Trial Act. The State is not obligated to commence a retrial in State court until all relevant matters pending in Federal court are disposed of. To rule to the contrary places both the Illinois courts and the prosecution in the untenable position of having to commence retrials while appeals are pending in the Federal courts which may render the retrials unnecessary or moot. In the present case, a mandate issued which commenced the running of the 120-day term on September 2, 1989, the day after the writ was docketed. (Ill. Rev. Stat. 1989, ch. 1, par. 1012.) The term was suspended on September 9, 1989, when the Attorney General filed a notice of appeal in the Seventh Circuit. As of November 9, 1989, 69 days had expired on the term. On November 13, 1989, the notice of appeal was invalidated by the docketing of the district court’s order denying the Attorney General’s motion to alter and amend. (Fed. R. App. P. 4(a)(4).) The appeal was in effect during the four-day period from the time the notice of appeal was filed until the day the order denying the motion to alter and amend was docketed. On December 29, 1989, the Seventh Circuit granted the State’s emergency motion for stay pending appeal and ordered that the appeal should be expedited. The grant of this motion validated the Attorney General’s original notice of appeal filed on November 9, 1989, and suspended the term as of December 29, 1989. Forty-six more days expired on the term between November 14, 1989, and December 29, 1989. December 29, 1989, was the 115th day of the term. The term began to run again on March 13, 1990. Defendant’s second trial commenced on March 15, 1990. Therefore, 118 days in custody are attributable to defendant for purposes of the Speedy Trial Act. Accordingly, we rule that the trial court did not err when it denied defendant’s motion to dismiss.

Next, defendant alleges that the State failed to meet its burden of proving him guilty of murder beyond a reasonable doubt because the State’s case was based solely on circumstantial evidence. The State maintains that defendant was proven guilty beyond a reasonable doubt because the evidence, viewed in its entirety, proved that defendant stabbed Kelly 26 times causing his death. We agree.

The relevant inquiry on review is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Emphasis in original.) (Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789; People v. Trimble (1991), 220 Ill. App. 3d 338, 350; People v. Schorle (1990), 206 Ill. App. 3d 748, 759, 565 N.E.2d 84, 91.) The reasonable doubt standard must be applied when reviewing the sufficiency of the evidence in a criminal case even where the defendant’s conviction was based solely upon circumstantial evidence. (People v. Pintos (1989), 133 Ill. 2d 286, 291, 549 N.E.2d 344, 346.) Once a defendant has been found guilty, a reviewing court must consider all of the evidence in the light most favorable to the prosecution. Jackson, 443 U.S. at 319, 61 L. Ed. 2d at 573, 99 S. Ct. at 2789; Trimble, 220 Ill. App. 3d at 350; Schorle, 206 Ill. App. 3d at 759, 565 N.E.2d at 91.

Upon viewing the evidence in the light most favorable to the prosecution, we find that the trial court could have found the essential elements of murder and concluded that defendant was guilty of murder beyond a reasonable doubt. Several witnesses testified that defendant was with the victim immediately before, during and after the stabbing. Smith testified that she saw defendant chase the victim across the yard towards Corcoran Hall. Stusaitis stated that she saw defendant and the victim together outside of the door to Corcoran Hall and she observed that the victim was slouched against the wall of the dormitory. Stusaitis also told the court that she saw defendant’s left arm move backward, and she observed a shiny object in his hand. Stusaitis’ testimony was corroborated by Lyons, Sinkus, and Hall. Hall testified that he observed defendant put a knife in his pocket as he left the scene of the crime. In addition, Caporusso testified that defendant’s and Kelly’s blood types match the blood types found on their clothing.

A guilty verdict will not be reversed by a court of review unless it is “ ‘inconclusive, improbable, unconvincing, or contrary to human experience.’ ” (People v. Trimble (1991), 220 Ill. App. 3d 338, 350, quoting People v. Schorle (1990), 206 Ill. App. 3d 749, 758, 565 N.E.2d 84, 90.) The trial court’s finding in the present case is neither inconclusive, improbable, unconvincing nor contrary to human experience.

Accordingly, we affirm the judgment of the circuit court.

Affirmed.

GREIMAN, P.J., and CERDA, J., concur.


author: JUSTICE O’CONNOR

text:
      In re ESTATE OF MARY YOUNGQUIST, a Disabled Person (Elmhurst Extended Care, Inc., Petitioner-Appellee, v. Joseph Falzone, Guardian of the Estate of Mary Youngquist, a Disabled Person, Respondent-Appellant).
    First District (1st Division)
    No. 1-91-1514
    Opinion filed September 8, 1992.
    Rehearing denied February 5, 1993.

      Corcoran & Corcoran, P.C., of Chicago (James M. Corcoran, Jr., of counsel), for appellant.
    Sigel, Albin, Landau & Rubin, of Chicago (Maurice Albin, of counsel), for appellee.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Respondent, Joseph Falzone, the guardian of the estate of Mary Youngquist, a disabled adult, appeals from an order of the circuit court which allowed petitioner Elmhurst Extended Care Center, Inc.’s claim against the estate.

We hold that the issue is moot and, as a result, dismiss the appeal.

On December 8, 1988, the circuit court appointed Joseph J. Orlando as the guardian of Youngquist, his sister. Youngquist, at that time, was a resident in petitioner’s nursing home. Orlando died on June 15,1990.

Following Orlando’s death, Youngquist remained in petitioner’s facility. Prior to September 17, 1990, petitioner apparently telephoned Corcoran and Corcoran, one of the guardian’s law firms, and informed the attorneys that Youngquist was subject to involuntary removal due to outstanding bills. On September 17, 1990, attorney James M. Corcoran responded, by letter, to the call and explained that no extension of a care contract could be entered into without the approval of the circuit court and that a successor guardian had to be appointed. Corcoran asked for “patience until we have someone who can sign checks, as well as the contract.” Petitioner responded by letter dated September 20, 1990, saying that “[the] explanation of the situation [was] completely understandable” and that the request for “patience” could be “honor[ed].” Petitioner advised Corcoran that it would “continue to care for [Youngquist] *** without threat of involuntary discharge.” Apparently no further action was taken on the account because, on January 31, 1991, petitioner again wrote to Corcoran, this time giving him 21 days to make other arrangements for Youngquist’s care since her bill, now with a balance of $21,437.65, remained unpaid.

On February 20, 1991, petitioner sent a notice of motion and petition for the appointment of a guardian ad litem for Youngquist so that her bill could be paid and involuntary discharge proceedings could be avoided. Corcoran then filed a suggestion of death with the court with respect to Orlando. At the same time, respondent, a step-grandson of Orlando, petitioned the court for appointment as Youngquist’s successor guardian. In his petition, respondent stated that Youngquist resided at petitioner’s facility, that the current value of the estate was $21,701.35, and that the anticipated gross annual income was $10,215.30. Respondent also stated that upon appointment, he would “need to petition this court as to payment of expenses, including *** the nursing home expenses where Mrs. Youngquist resides [which] ha[d] not been paid since May 30, 1990.” The circuit court subsequently appointed respondent as Youngquist’s successor guardian on February 28,1991.

At the hearing before the court on the various other motions pending, petitioner requested that a substantial payment be made on Youngquist’s account so that all action regarding involuntary removal could be suspended. Respondent argued that, since no inventory had been taken on the estate and no final account of the original guardian had ever been filed, additional time was needed so that those procedures could be undertaken and that the proper documents could be filed with the court. Respondent admitted that, at the time of the hearing, Youngquist was receiving social security payments of $715 per month, which were deposited into the estate bank account. The court then ordered respondent to pay petitioner $10,000 “forthwith as a payment on account for past services rendered to the ward.” The court further ordered that respondent “pay all social security payments payable to the ward to Elmhurst Extended Care Center each month while she is a resident” at the facility. Respondent’s motion for reconsideration of the order was denied, and this appeal followed.

Respondent argues that the circuit court failed to follow the provisions of the Hlinois Probate Act of 1975 (Ill. Rev. Stat. 1989, ch. 11½, par. 1-1 et seq.) in allowing petitioner’s claim against the estate.

We, however, initially must address several developments, occurring after this appeal was filed, which, in our opinion, render the issue moot. Youngquist continued to reside at petitioner’s facility until a few days before her death in May 1991. On April 23, 1991, petitioner filed a claim in the circuit court for “nursing home services rendered from June 1, 1990 to April 22, 1991.” On May 8, 1991, petitioner filed a petition, seeking a finding, judgment and order as to the payment of Youngquist’s bill. The petition sought in excess of $27,762.57 for services rendered to Youngquist until April 22, 1991. Accordingly, this new claim and petition seeks a total payment on the account and subsumes the action now under appeal, as the record reveals that petitioner currently is seeking redress by utilizing the provisions of the Probate Act which deal expressly with claims against a decedent’s estate. See Ill. Rev. Stat. 1989, ch. 110½, pars. 18-1, 18-2.

An issue is moot when no actual rights or interests of the parties remain or where events occur which render it impossible for the reviewing court to grant effectual relief to either party. (Hightower v. Duffy (1989), 192 Ill. App. 3d 65, 548 N.E.2d 495, appeal denied (1990), 131 Ill. 2d 559, 553 N.E.2d 396.) Here, the order of the circuit court appealed from provided that respondent pay $10,000 to petitioner for past services rendered and that respondent turn over Youngquist’s monthly social security payments to petitioner for Youngquist’s subsequent care. If this court were to affirm the order, respondent, in effect, now would be required to make payments for future care which can no longer be received because Youngquist has died. Although an argument could be made that the payment of $10,000, ordered by the circuit court, could be used to repay petitioner for services rendered, new proceedings should be undertaken to pursue those monies as Youngquist’s death significantly has changed the nature of both the estate and the controversy.

Petitioner also seeks attorney fees for defending the “frivolous” appeal taken by respondent. We do not find the appeal frivolous as respondent was seeking review of an order which granted a claim against an estate of a ward without a claim ever having been filed. In view of that fact, each party should be responsible for its own attorney fees incurred during the pendency of this appeal.

Based on the foregoing, the appeal is dismissed as moot.

Appeal dismissed.

BUCKLEY, P.J., and MANNING, J., concur.

       Subsequent to the filing of the briefing materials in this case, respondent filed a motion in this court seeking to strike matters in petitioner’s brief which are “improper, misleading and outside the record,” arguing that petitioner’s brief violates Supreme Court Rule 341(f). (134 Ill. 2d R. 341(f).) We find respondent’s motion to be specious because petitioner’s brief in no way violates Rule 341(f). (134 Ill. 2d R. 341(f).) Moreover, after reviewing the record, we are satisfied that petitioner did not, in any way, mislead this court or misrepresent the proceedings which occurred before the circuit court.

       Indeed, petitioner’s counsel, during oral arguments before this court, conceded that the prior action had, in effect, been subsumed by the current claim now in the circuit court.