text:
      In re ESTATE OF DOROTHY L. HICKMAN, a Disabled Person (Dorothy M. Jones et al., Temporary Guardians of the Estate of Dorothy L. Hickman, a Disabled Person, Petitioners-Appellants, v. Dorothy L. Hickman, Respondent-Appellant (Palmer American National Bank, Plenary Guardian of the Estate of Dorothy L. Hickman, a Disabled Person, Respondent-Appellee; John T. White, Intervenor)).
    Fourth District
    No. 4—90—0572
    Opinion filed January 31, 1991.

      William A. Young, of Young & Young, of Danville, for appellants.
    Kenneth R. Watson, of Williamsport, Indiana, for appellee.
    Mark S. Goodwin, of Dougherty, Hofmann & Goodwin, of Danville, guardian ad litem.

   PRESIDING JUSTICE LUND

delivered the opinion of the court:

Petitioners Dorothy Jones and James Burton appeal from the portion of the order of the circuit court of Vermilion County denying their petition to appoint a personal guardian for their aunt, the respondent. We affirm in part and reverse in part.

On December 26, 1989, petitioners filed a petition seeking the appointment of a guardian of the person and estate of the respondent. The court entered an order appointing petitioners temporary guardians of respondent’s person and estate. Respondent subsequently filed a counterpetition requesting the appointment of the Palmer Bank of Danville as her estate guardian.

An evidentiary hearing was held on February 28, 1990. Larry Kaufmann, a tenant farmer of respondent’s farmland in Cissna Park, Illinois, testified that in the past year he has sent the respondent at least two statements for expenses incurred. Respondent told him that she never received the statements and asked Kaufmann to help her locate them. While looking through respondent’s papers, Kaufmann found a payment-in-kind certificate issued by the Agricultural Stabilization and Conservation Service (ASCS) which had expired. Kaufmann also found a delinquency notice for unpaid property taxes and an unpaid fertilizer bill. Kaufmann additionally recalled being informed that the grain elevator had sent respondent a check for $10,000 to $12,000 for grain sold in March, which respondent did not cash for several months. Respondent asked Kaufmann to help her with the bills because her deceased husband took care of such things and she was unfamiliar with them.

Debra Jean Burton, a cosmetologist who is married to the respondent’s nephew, testified that the respondent visited her beauty shop in December 1989. When the respondent arrived, Dorothy Jones, respondent’s niece, was also there receiving a permanent. Respondent did not recognize Jones and told her that she had a sister who looked just like her. Debra Jean stated that respondent smelled like she had not bathed recently. When she shampooed respondent’s hair, Burton had to “wash in behind her ears to get the cakiness behind her ears.” After Debra Jean - finished the permanent, she and the respondent went to lunch. Although respondent had paid for her permanent at the beauty shop, she attempted to pay Debra Jean two more times during lunch. When respondent opened her purse to pay for lunch, Debra Jean noticed that respondent had taken items from the table, including the salt and pepper shakers.

Debra Jean’s husband James was appointed respondent’s temporary guardian. Since this appointment, Debra Jean has helped to pay respondent’s bills for her. She stated that the respondent had a 1988 radiology bill that had not been paid and a telephone bill that had not been paid for two months.

Clarence Burton, the respondent’s brother-in-law, described himself as a “tax man.” He stated that the respondent, who has had difficulty “keeping her bills paid,” asked him to assist her. In November 1989, he found numerous overdue bills in respondent’s home, as well as an uncashed check for $12,093.99 for grain which had been sold in early March. Clarence also stated that when he prepared respondent’s 1988 income tax returns, he had to apply for an extension because respondent kept no records. Clarence concluded that respondent is unable to manage her own financial affairs.

Lucille Conway, respondent’s sister-in-law, testified that she has known respondent for approximately 50 years. Conway stated that in the past year respondent would sometimes call her four or five times in one day, continually contradicting herself and forgetting that she had called previously.

Dorothy Jones, respondent’s niece and copetitioner in this action, testified that she lived with the respondent until age 12 and thereafter spent weekends and summers with her. Jones stated that respondent drove her car without insurance or a valid driver’s license until she took respondent’s car and put it in storage at her home. Jones has three daughters, two of whom respondent does not recognize. Respondent recognizes one of Jones’ daughters “once in awhile.” The last time respondent attempted to visit Jones’ home, she got lost.

Jones also described the condition of respondent’s health. She stated that respondent has a pacemaker and must take medication and wear a nitroglycerine patch every day. Jones added that respondent will refill her medication, “but she never takes it.” She later noted that respondent was once hospitalized for failing to take her heart medication. Jones also stated that respondent has to be taken to the hospital three or four times a year for chest pains.

When asked about respondent’s eating habits, Jones explained that respondent no longer cooks at home and does not eat properly. She goes out to eat when she is hungry. Jones also described respondent’s home at 110 Urban Drive in Westville. She said there is a big ball of bird seed on respondent’s dining room table. There are bugs in the bird seed. The respondent’s bird flies freely, and its droppings are all over the house.

James Burton, copetitioner in this case and nephew of the respondent, testified that he resided with the respondent from the time he was 13 months old until he reached 12 or 13 years of age. He also lived with the respondent and his uncle in Florida for approximately three years. James stated that the respondent is very forgetful. She locks herself out of her home and calls his home frequently, often repeating what she had just said in a prior call.

Respondent testified she is 80 years old, that no medication has been prescribed by her doctor, and that she has not been to a doctor for a long while. She stated she has not seen Dr. Alnaqib, her physician, for several years. When asked when she was last in the hospital, she responded “three or four months or something like that.” When asked whether she saw a doctor while she was in the hospital, she replied that she saw Dr. Alnaqib. Although respondent recalled that Dr. Alnaqib prescribed medication during her last visit to the hospital, she could not recall what he prescribed.

Counsel questioned the respondent about her relationship with John White. Respondent stated she was a housekeeper for White. She explained that she lived in Indiana with White part of the time because she did not want to be home. Respondent told her sister-in-law that she was married to White in order to avoid criticism.

Counsel then questioned the respondent regarding her personal and financial affairs. Respondent stated she had money in the Palmer and Cissna Park banks, although she did not know how much money was in either account. She said she has an automobile, but does not drive it. She explained that she does not have a driver’s license or insurance and that the car is now at Dorothy Jones’ house. Counsel also asked respondent if she remembered receiving a check for $12,093 for her crops last year. Respondent replied that she still has the check in her lock box at the Palmer Bank. When questioned about her farmland, respondent stated that she owns 110 acres of farmland in Cissna Park, Illinois, which is farmed by Larry Kaufmann. When asked about the petitioners Dorothy Jones and Jim Burton, respondent stated that she helped raise them. She said “Jimmy” lived with her and her now deceased husband until he was two or three years old, and that Dorothy lived with her until she was about five or six. Respondent further explained that she does not do any cooking at home and eats her meals out.

Counsel asked respondent whether she knew Jean Burton. Respondent replied that Jean is married to her nephew and is a beautician by trade. Although respondent admitted that she needs someone to take care of her financial affairs, she contended that she is capable of feeding, clothing, and bathing herself, as well as taking care of household chores. At the conclusion of respondent’s testimony, the court ordered an independent evaluation of the respondent by a physician and continued the matter until the results of the evaluation would become available.

Respondent and John White were married on March 5, 1990. White subsequently requested and was granted permission to intervene in the proceedings. White also filed a petition to terminate the temporary guardianship of his spouse.

The court heard additional testimony on May 22, 1990. Dr. Suhail Alnaqib, a physician specializing in internal medicine and gastroenterology, testified that the respondent has been his patient for approximately 10 years. He used to see respondent on a regular basis but, in later years, her visits have been infrequent. From 1987 through 1989, he saw the respondent nine times. On August 14, 1989, respondent was admitted to the hospital through the emergency room with chest pain. Alnaqib stated that during her stay at the hospital, respondent “had periods of confusion and disorientation, and her memory was not adequate.” During this visit, Alnaqib advised that respondent would “need to be supervised on an almost continuous basis.” Alnaqib again saw respondent in March 1990, when she was admitted to a psychiatric wing. He observed that although she was “quiet” and “very pleasant,” her memory was still impaired. He concluded that respondent’s “memory has been failing her progressively.” Alnaqib added that, “my record [indicates] lack of compliance with treatment, and in retrospect I find out that this is really something related to her memory rather than her intention not to take medication.”

A report submitted by Alnaqib states that respondent is totally incapable of making personal and financial decisions due to disorientation and impaired memory.

Faye Scripter, an acquaintance of the respondent for the last 8 to 10 years, testified that the petitioners brought the respondent to her home on Merrill Street in Gatlin on March 19, 1990, so that Scripter could take care of her. Scripter observed that the respondent was not clean and smelled badly. She removed respondent’s coat from her home because it “smelled terrible.” Respondent’s underwear was so dirty that Scripter burned it. She put respondent in the bathtub. Respondent emerged from the bathroom wearing the same dirty clothes she had on when she arrived. Scripter noticed that respondent had not washed her head. When respondent prepared for bed, Scripter put her dirty clothes in the washing machine.

During dinner that evening, respondent spoke to Scripter and her husband. Scripter stated that “she would talk for 15 minutes maybe her mind was pretty good; and then it would go where she wasn’t talking sensible. But as long as she kept her mind just on that, why, she did real good.”

At approximately 2:30 a.m., Scripter heard respondent moving in her bedroom. Respondent, who was in the closet, asked Scripter whether the clothes in the closet were hers. As Scripter explained that the petitioners brought some clothes for her to wear, she noticed that respondent had just put on make up. Respondent told Scripter that she always likes to look nice. At approximately 6:30 a.m., Scripter found respondent in her kitchen trying to make a phone call. After Scripter told respondent that she was not supposed to use the phone, respondent returned to her bedroom. Respondent later ran out of Scripter’s home to a neighbor’s house. Scripter then called the police.

Frederick Reddy, chief of the Gatlin police department, responded to a call regarding a mental subject in a house on Merrill Street on March 20, 1990. Reddy, who has known the respondent for approximately 35 years, transported her to an emergency room “due to her mental state.” Respondent told Reddy that she had been held against her will. Reddy stated that, “[s]he appeared to be very confused as to where she was at as well as what was going on around her or why she was even at that location.” He remained with the respondent while she waited for a doctor to examine her. Reddy asked the respondent if she was married, and she replied that she thought she was, although she could not tell him where or when she was married or if she was married by a preacher or a judge.

William Blue, a friend of John White, respondent’s husband, stated that he has been with the respondent and White on numerous occasions since he first met respondent in July 1989. Blue described White’s home as “about as clean as they can keep it.” He stated he has observed the respondent “wash” dishes by wiping them off with a paper towel and putting them on the shelf. When asked about respondent’s condition, Blue stated, “When she’s nervous, she’s kind of off — you have to repeat twice to her to let her know what’s going on.” He also stated that respondent “should have a woman with her to kind of see after her, give her medicine and stuff that she needs.”

Lucille Conway, respondent’s sister-in-law, described the house in Coal Hollow, Indiana, where the respondent resided with John White. On May 10, 1989, Conway visited the home at approximately 10:30 a.m. John White had moved out, and the house was furnished only with a few chairs, a couch, and a coffee table. There was no stove, refrigerator, bed, fan, or air conditioner in the house. Conway recalled it was an 85-or 90-degree day. Respondent had closed all the windows and doors. Although respondent had not eaten that day, she drank a can of warm beer from the cupboard. The respondent appeared unclean and kept repeating herself. Conway stated that respondent was unable to make necessary decisions regarding her personal care and hygiene.

James Burton, respondent’s nephew and copetitioner in this case, described petitioners’ exhibit Nos. 3 through 24, which are pictures of respondent’s home in Westville, Illinois. All the pictures are dated April 28, 1990. Exhibit No. 3 is a photograph of the northwest bedroom of respondent’s home. A pile of stuffed toys reaches almost to the ceiling. Exhibit Nos. 5 and 6 depict a garbage bag full of empty beer cans and a bucket containing empty liquor bottles, which James stated he found in respondent’s home. Exhibit Nos. 8 and 9 are pictures of respondent’s bathtub and toilet, both of which contain dark rings. Exhibit No. 10 is a picture of respondent’s southeast bedroom, which contains stacks of boxes and old clothes. Exhibit No. 12 is a picture of respondent’s parakeet lying dead on the floor of her front room. Exhibit No. 13 is a picture of respondent’s kitchen table. The table contains a bowl of birdseed and is littered with birdseed and bird droppings. James testified that respondent always kept an immaculate house when he resided with her.

James then described respondent’s behavior during a period of hospitalization from March 20 to March 30, 1990. During her first day at the hospital, respondent told James that she had been there for four days and had not seen a doctor. Respondent thought she was at a “mission” rather than a hospital. The next day, respondent told him that she had been there for nine days.

Respondent testified that she resides in West Lebanon, Indiana, and owns a home at 110 Urban Drive in Westville, Illinois. She stated that she was single when she last testified, but is now married. When asked her age, respondent said that she is 71 years old and was born in 1910. Counsel asked respondent if she was related to James Burton and Dorothy Jones. She replied that they are her nephew and niece, and that they lived with her and her husband when they were children. Respondent was shown petitioners’ exhibit No. 24, a photograph of her Westville home, which she properly identified. She recognized all of petitioners’ pictures of the Westville home which were shown to her, and she identified every room in the house. When questioned about her bird, she responded, “Someone’s taking care of him.” Respondent did not recall leaving a large bag of beer cans and two empty liquor bottles in her home.

Dr. Buymong Lee, a psychiatrist, examined the respondent on March 20, 1990. Lee stated that when respondent entered the hospital, she was grossly confused and disoriented. He also stated that respondent’s memory was noticeably impaired and that “she wasn’t quite aware [of] her immediate surroundings and the reason why she was in the hospital.” The next day, Lee asked the respondent how long she had been in the hospital, and she answered “two or three weeks.” By March 22, 1990, Lee observed no noticeable change in respondent’s condition. He began to administer small doses of the anti-psychotic medication Navane. Respondent’s overall condition improved by March 27. On March 30, 1990, respondent was discharged. On that date, Lee observed no gross confusion or agitation, and noted an improvement in respondent’s sleeping and appetite. Although respondent’s mood was stable, her memory remained impaired. Lee diagnosed respondent as having “organic mental disorder/dementia’' and coronary artery disease.

During his testimony, Lee was shown a letter from a Dr. Fabrizio, which stated that respondent has “organic brain syndrome, Alzheimer’s disease.” The letter stated that “this is only likely to become worse.” Lee agreed with Dr. Fabrizio’s diagnosis and concluded that respondent is incapable of taking care of her basic needs.

A report submitted to the court by Lee notes that respondent suffers from impaired memory, judgment, and self-care ability, and states that respondent is totally incapable of making personal and financial decisions.

The letter from Dr. Fabrizio to which Dr. Lee referred is dated March 28, 1990, and is addressed to the trial court judge who presided over this case. The letterhead indicates that Fabrizio is a physician specializing in cardiology and internal medicine. The letter states that physically, the respondent appears to be “quite well” and notes that her heart function appears to be “remarkably good.” With regard to respondent’s neurological function, Fabrizio wrote that “the patient is disoriented as to time and date and has absolutely no recall for manipulation of simple numbers.” He also observed that respondent has “no idea she takes any medications” and “no recall of why her cardiac pacemaker was implanted.” Fabrizio concluded that the “management of an estate with financial decisions” and even day-today accounting “is and will become impossible” for the respondent. Although Fabrizio recommended that respondent’s interests would be “best served by a guardian,” he made no statement regarding her ability to take care of her person on a day-to-day basis. Fabrizio advised consultation with Dr. Tazudeen, a neurologist.

Phyllis Cadle, who lives across the street from the Scripter residence, testified that respondent knocked on her door at approximately 6:15 a.m. on March 20, 1990, and asked her if she could use her phone to call her husband. Respondent informed Cadle that the people across the street were trying to say that she was incompetent. She told Cadle her name, her husband’s name, and where she lived, but said, “I’m so nervous I can’t remember the number.” After receiving John White’s phone number from directory assistance, Cadle called him and asked him to pick up his wife. The chief of the Gatlin police department came to Cadle’s home and left with the respondent before John White arrived. Cadle stated that respondent appeared “nervous.”

On May 31, 1990, respondent filed a motion to withdraw her counterpetition, contending that she did not desire a guardian of her person or estate.

The court heard further testimony on June 11, 1990. Respondent again identified the location of her farm, as well as her current residence and her home in Westville, Illinois. She stated that she was married to Carl Hickman for 52 years, until he passed away approximately eight years ago. She also described her relationship to the petitioners. When questioned about her bank accounts, respondent stated that she has money at the Palmer, Gatlin, Westville, and Cissna Park banks, although she did not know the amounts in each account. Respondent additionally stated that she withdrew her prior request to have the Palmer Bank appointed guardian of her estate.

Respondent was again shown petitioners’ exhibit No. 6 and asked if she ever had beer, vodka, or whiskey in her house in Westville. She stated there was some beer and a bottle of liquor in the house, but it was not hers. She explained that she has not been in her home in Westville since Christmas. Respondent was then asked the year and date, and she stated it was 1989. Respondent did not know the precise date or why she was in court. She did, however, recall the testimony of her sister-in-law, Lucille Conway, regarding her home in Coal Hollow, Indiana. Respondent stated she was not living alone, and that her home was furnished when Conway visited her. Respondent explained that she and her husband moved out of the house because of her husband’s “respiratory trouble.” She now lives in her husband’s home in West Lebanon, Indiana. When questioned about her age, she replied that she is 70 years old and was born in 1910.

An inventory of respondent’s assets filed on May 22, 1990, reveals that respondent has deposits at the First National Bank of Gatlin, the Palmer American National Bank, and the Cissna Park State Bank, with a total value of over $314,000. The inventory makes no mention of an account at the Westville bank.

Dr. Vathiar Tazudeen, a neurologist, testified that he first saw the respondent on May 16, 1990, and has seen her approximately three times in the last three weeks. Tazudeen stated that the respondent has “a very mild early type of dementing process, memory impairment.” A CAT scan ordered by Tazudeen revealed no serious problem except mild atrophy of the brain. A brain-wave test, as well as a check on the circulation to respondent’s brain, produced normal results. Tazudeen sent respondent to Indiana University for further evaluation of her memory functions.

Dr. Hendrie, the director of the center for Alzheimer’s disease and related disorders, wrote Tazudeen a letter informing him that respondent scored a 20 out of 30 in the minimum-mental-state examination. Hendrie advised Tazudeen that a score of 24 or more would be considered normal, and characterized respondent’s score as “a mild dementing range.” Hendrie concluded that respondent suffered from early Alzheimer’s disease. Tazudeen agreed that respondent could be suffering from mild Alzheimer’s disease. He stated that respondent “still has a lot of faculties intact” and is able to care for herself in the activities of daily living. Tazudeen added that respondent need not be taken from her home environment and placed in a nursing home for ongoing care.

On cross-examination, Tazudeen stated that if he had known that respondent was not able to maintain her cleanliness, he might have changed his diagnosis.

John White, respondent’s husband, testified that he and the respondent have not been to respondent’s Westville home in two or three months. He stated that the locks had been changed and they could not get in. White also described his home life with the respondent. He explained that respondent does the cooking, both he and the respondent clean the house, and White’s daughter does their laundry. In regard to the respondent’s health, White stated that she has not had any heart trouble in the years he has known her. White admitted that respondent takes medication, although he does not know its name or what it is for. When questioned regarding respondent’s Coal Hollow, Indiana, home, White stated that he never left her there alone.

The trial court adopted the recommendation of the guardian ad litem, and entered an order denying the petition to appoint a guardian of respondent’s person and granting the petition to appoint a guardian of respondent’s estate. The court found that respondent’s memory impairment and dementia make her incapable of managing her estate and financial affairs, but do not render her unable to make or communicate responsible decisions concerning the care of her person.

On appeal, petitioners contend that the trial court erred in refusing to appoint a personal guardian for respondent. We agree. Sections 11a — 2 and 11a — 3 of the Probate Act of 1975 (Ill. Rev. Stat. 1989, ch. IIOV2, pars. 11a — 2, 11a — 3) set forth the standards for determining whether a guardian may be appointed for an individual and provide, in relevant part, as follows:

“ ‘Disabled person’ defined. ‘Disabled person’ means a person 18 years or older who (a) because of mental deterioration or physical incapacity is not fully able to manage his person or estate, or (b) is mentally ill or developmentally disabled and who because of his mental illness or developmental disability is not fully able to manage his person or estate, or (c) because of gambling, idleness, debauchery or excessive use of intoxicants or drugs, so spends or wastes his estate as to expose himself or his family to want or suffering.” Ill. Rev. Stat. 1989, ch. 110½, par. 11a — 2.
“Adjudication of disability — Power to appoint guardian, (a) Upon the filing of a petition by a reputable person or by the alleged disabled person himself or on its own motion, the court may adjudge a person to be a disabled person and may appoint (1) a guardian of his person, if because of his disability he lacks sufficient understanding or capacity to make or communicate responsible decisions concerning the care of his person ***.
(b) Guardianship shall be utilized only as is necessary to promote the well-being of the disabled person, to protect him from neglect, exploitation, or abuse, and to encourage development of his maximum self-reliance and independence. Guardianship shall be ordered only to the extent necessitated by the individual’s actual mental, physical and adaptive limitations.” Ill. Rev. Stat. 1989, ch. 110½, par. 11a — 3.

The foregoing provisions indicate that although a person may be disabled in the statutory sense of not being fully able to manage her person, a guardian is not permissible or appropriate if that person is capable of making and communicating responsible decisions concerning the care of her person. (In re Estate of Galvin (1983), 112 Ill. App. 3d 677, 681, 445 N.E.2d 1223, 1225; In re Estate of Mackey (1980), 85 Ill. A.pp. 3d 235, 238, 406 N.E.2d 226, 229-30.) We recognize that the adjudication of disability is a uniquely factual determination which is to be made by the trial court and is not to be disturbed upon review unless the trial court’s findings are against the manifest weight of the evidence. (In re Estate of Barr (1986), 142 Ill. App. 3d 428, 433, 491 N.E.2d 1241, 1245; Galvin, 112 Ill. App. 3d at 681-82, 445 N.E.2d at 1225-26.) However, after careful review of the record, we conclude that the trial court’s finding that respondent has the capacity to make or communicate responsible decisions concerning the care of her person is against the manifest weight of the evidence.

The evidence strongly indicates that respondent suffers from an impaired memory and is prone to confusion and disorientation. On at least one occasion, respondent was uncertain why she was in court. On more than one occasion, she was not certain of her age. Without being reminded, she appears to have no independent knowledge of her medical condition or history. The testimony of numerous witnesses indicates that respondent is unable to make personal grooming decisions in a manner which would assure good health. This evidence is particularly disturbing in light of the fact that respondent is an elderly woman with a heart condition who wears a pacemaker and must take medication regularly.

Perhaps the most convincing evidence indicating respondent’s need for a personal guardian comes from the physicians who have examined her. Of the four physicians who provided opinions to the court on respondent’s ability to make responsible decisions concerning the care of her person and estate, only Dr. Tazudeen stated that respondent is capable of caring for herself. Tazudeen, who saw the respondent only three times, admitted that he was unaware that respondent was having difficulty maintaining her finances and personal hygiene. He stated that he might have changed his diagnosis had he known that respondent was unable to maintain her cleanliness.

Dr. Alnaqib, respondent’s primary physician for the last 10 years, has examined respondent on numerous occasions in the last three years. He stated that respondent has a history of lack of compliance with treatment due to progressive memory failure. He concluded that respondent is totally incapable of making personal and financial decisions.

Dr. Lee, a psychiatrist who had the opportunity to observe respondent continually over a 10-day period of hospitalization, also concluded that respondent’s impaired memory and judgment render her totally incapable of making personal and financial decisions.

While Dr. Fabrizio’s report to the trial court states that management of an estate is “impossible” for the respondent, the report does not advance an opinion on respondent’s ability to make decisions concerning her personal care. However, Fabrizio’s observation that respondent “has no idea she takes any medications” and “no recall of why her cardiac pacemaker was implanted” suggests that responsible health-care decisions would be equally impossible for the respondent.

In light of the evidence adduced at trial, we conclude the trial court’s finding that respondent does not require a personal guardian was against the manifest weight of the evidence. Accordingly, we reverse the portion of the trial court’s order denying petitioners’ request to appoint a personal guardian and remand the cause for the appointment of a personal guardian for the respondent. The portion of the trial court’s order appointing a guardian for respondent’s estate is affirmed.

Affirmed in part; reversed in part and remanded.

GREEN and STEIGMANN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE STEIGMANN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. RODERICK HEARD, Defendant-Appellee.
    Fourth District
    No. 4—90—0504
    Opinion filed January 31, 1991.
    Thomas J. Difanis, State’s Attorney, of Urbana (Kenneth R. Boyle, Robert J. Biderman, and Linda Susan McClain, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Daniel D. Yuhas and Arden J. Lang, both of State Appellate Defender’s Office, of Springfield, for appellee.
   JUSTICE STEIGMANN

delivered the opinion of the court:

On June 18, 1990, Marcell Patterson, Herbert Heard, and Christopher Heard were charged in Champaign County with five felony offenses. On that same day, Christopher Heard and Marcell Patterson made their initial appearance before the Champaign County circuit court and various orders were entered regarding their cases. When Herbert Heard’s case was called, Roderick Heard, the defendant in the present case, appeared and represented himself to be his brother, Herbert Heard. This ruse was unsuccessful, however, and the court entered the following orders:

“Court finds that Mr. Roderick Heard approached this Court in an attempt [to] have the Court believe that he was Herbert Heard. Court finds that this was done in *** disrepute [sic] for the Court and to hinder the administration of justice by this Court. Court finds that Roderick Heard is in direct criminal contempt of Court and is sentenced to serve a period of incarceration in the Champaign County Correctional Center of thirty (30) days beginning this date. Written order of direct criminal contempt to be entered.”

The next day, June 19, 1990, defendant was charged by information with obstructing justice when, “with the intent to prevent the prosecution of Herbert Heard,” he knowingly presented himself before the court and identified himself as Herbert Heard. (See Ill. Rev. Stat. 1989, ch. 38, par. 31 — 4.) Defendant filed a motion to dismiss the information on the ground that if it were allowed to stand, he would be subjected to double jeopardy in violation of the fifth amendment to the United States Constitution and article I, section 10, of the Illinois Constitution. On June 29, 1990, defendant’s motion to dismiss was granted by the trial court. The State appeals the order dismissing the information.

We reverse.

People v. Totten (1987), 118 Ill. 2d 124, 514 N.E.2d 959, is determinative of the issue before this court. In Totten, defendant was summarily found in direct criminal contempt and sentenced to six months’ imprisonment for striking the assistant State’s Attorney at defendant’s sentencing hearing following his conviction on charges unrelated to his appeal. (Totten, 118 Ill. 2d at 127-28, 514 N.E.2d at 960.) He was subsequently charged by indictment with four counts of aggravated battery. (Totten, 118 Ill. 2d at 128, 514 N.E.2d at 960.) The circuit court granted defendant’s motion to dismiss the indictment on the basis of double jeopardy, and the State appealed. (Totten, 118 Ill. 2d at 128, 514 N.E.2d at 960.) The appellate court reversed and remanded, and the supreme court affirmed the judgment of the appellate court. Totten, 118 Ill. 2d at 128, 514 N.E.2d at 960.

In agreeing with the appellate court that the dismissal of the aggravated battery indictment was improper, the supreme court cited with approval two Federal cases, United States v. Rollerson (D.C. Cir. 1971), 449 F.2d 1000, 1004, and United States v. Mirra (S.D. N.Y. 1963), 220 F. Supp. 361, 365, as well as the following language from Justice Brennan’s separate opinion in Abbate v. United States (1959), 359 U.S. 187, 198-99, 3 L. Ed. 2d 729, 736, 79 S. Ct. 666, 673 (Brennan, J., separate opinion): “The basis of the Fifth Amendment protection against double jeopardy is that a person shall not be harassed by successive trials; that an accused shall not have to marshal the resources and energies necessary to his defense more than once for the same alleged criminal acts.” (See Totten, 118 Ill. 2d at 132-33, 514 N.E.2d at 962.) The court in Totten further wrote the following:

“Summary proceedings for direct contempt *** do not implicate this consideration because the contemnor does not face an adversary proceeding for his contempt. Instead, the first and only trial-type harassment the contemnor faces is the subsequent criminal prosecution.
*** Accordingly, we hold that a prosecution for aggravated battery following and arising out of an adjudication of direct criminal contempt does not offend the double jeopardy clause of either the United States Constitution or of the Illinois Constitution.” Totten, 118 Ill. 2d at 133-34, 514 N.E.2d at 962-63.

On appeal, defendant argues that the trial court’s dismissal of the obstructing justice charge was proper because the same conduct of the defendant would be used to prove both criminal contempt and obstructing justice, thus violating the double jeopardy clauses of the United States and Illinois Constitutions. The trial court apparently agreed with this argument and stated the following: “It would seem to me here that it would be very difficult to distinguish between what Mr. Heard was being punished for contempt for and what he is now being charged with as a criminal offense.” We disagree and find that this argument misconstrues the holding of the supreme court in Tot-ten.

When a defendant who has been found to be in criminal contempt of court and punished therefor is subsequently charged with committing a criminal offense based upon the same conduct, Totten requires that a court, when presented with a motion to dismiss on double jeopardy grounds, first determine whether the defendant’s criminal contempt was direct or indirect. (For an extensive discussion of the differences between direct and indirect contempt, see In re Marriage of Betts (1990), 200 Ill. App. 3d 26, 47-48, 558 N.E.2d 404, 418-19.) If the defendant was found in indirect criminal contempt of court, then a traditional examination under People v. Mueller (1985), 109 Ill. 2d 378, 488 N.E.2d 523, should be employed to determine whether the indirect criminal contempt and the new charge filed against the defendant constitute the same or separate offenses for double jeopardy purposes. However, if the court determines that defendant was found in direct criminal contempt of court, application of the Mueller test is inappropriate.

We hold that Totten stands for the proposition that any criminal charge “following and arising out of an adjudication of direct criminal contempt does not offend the double jeopardy clause of either the United States Constitution or of the Illinois Constitution.” (Totten, 118 Ill. 2d at 134, 514 N.E.2d at 963.) In the present case, the record makes clear that defendant was found to be in direct criminal contempt for falsely representing himself before the trial court to be his brother; accordingly, the trial court’s granting of defendant’s motion to dismiss the information on double jeopardy grounds was in error.

For the reasons stated, the order of the circuit court dismissing the information is reversed, and this cause is remanded for further proceedings.

Reversed and remanded.

GREEN and KNECHT, JJ., concur.


author: PRESIDING JUSTICE LUND

text:
    AMERICAN FAMILY MUTUAL INSURANCE COMPANY, Plaintiff-Appellee, v. KATHY S. (JOHNSON) BLACKBURN, Indiv. and as Adm’r of the Estate of Phillip M. Johnson, and as Mother and Next Friend of Phillip M. Johnson, Jr., et al., Minors, Defendant-Appellant (Betty Louise Johnson, Indiv. and as Adm’r of the Estate of Wendell O. Johnson, Deceased, Defendant).
    Fourth District
    No. 4—90—0029
    Opinion filed January 31, 1991.

      Carl W. Telford, of Law Offices of Carl William Telford, Ltd., of La Salle, and Josette Skelnik, of Robinson & Skelnik, of Elgin, for appellant.
    David A. Novoselsky & Associates, of Chicago (David A. Novoselsky and Linda A. Bryceland, of counsel), for appellee.
    James E. Tueth, of Decatur, guardian ad litem.

   PRESIDING JUSTICE LUND

delivered the opinion of the court:

This appeal is from a summary judgment entered in favor of plaintiff, American Family Mutual Insurance Company (American Family), a corporation, in a declaratory judgment action brought against Kathy S. (Johnson) Blackburn, individually and as administrator of the estate of Phillip M. Johnson, and as mother and next friend of Phillip M. Johnson, Jr., and Bradley Johnson, minors (Blackburn), and Betty Louise Johnson, individually, and as administrator of the estate of Wendell O. Johnson, deceased (Johnson). The occurrence from which this action commenced was the killing of Phillip M. Johnson on July 4, 1981, by his father, Wendell O. Johnson, during a fight at a campground near Lake Shelbyville. On September 23, 1988, defendant Blackburn obtained a judgment based on an allegation of a negligent act against the estate of Wendell O. Johnson, deceased. Wendell died in 1982 during the pendency of Blackburn’s action. See Blackburn v. Johnson (1989), 187 Ill. App. 3d 557, 543 N.E.2d 583.

Wendell Johnson carried a homeowner’s policy with American Family which would have provided coverage for negligent (but not intentional) acts. A condition of the policy provided that in the event of an occurrence, the insured must “give prompt notice to [American Family] or our agent,” and required the insured to “promptly forward to us any notice, demand and legal paper relating to the accident or occurrence.”

The wrongful-death action was filed on July 6, 1982, and the service on Wendell was at a time when he was near death with cancer. American Family was not made aware of the occurrence until September 20, 1985, well after Wendell’s death. On October 9, 1985, American Family sent a letter to Betty Johnson, acknowledging it had received notice of the wrongful-death litigation. The letter pointed out that Betty Johnson had been served on July 6, 1982, and that there had been a failure to forward notice to American Family. The prompt-notice provision in the the required notice “seriously prejudiced this company in handling of this lawsuit. We disclaim any liability under the aforementioned policy” due to the breach. The letter further pointed out that the policy expressly excluded coverage for intentional acts and set forth the provision in the policy so providing. The letter then concluded with the following provisions:

“[1] It is the position of American Family Mutual Insurance that it is not obligated under the terms and provisions of the aforesaid policy to pay any judgment entered in this case based on liability for an intentional act. However, it cannot be determined from the four comers of the complaint whether the incident complained of arose from an intentional act or an act of negligence. We are aware that the firm of Burger Fombelle and Devorak of Decatur, Illinois is defending you on this action.
It must [be] understood and agreed that by proceeding with the investigation of this lawsuit, American Family Insurance Company does not assume any liability, does not waive the denial of its liability, does not waive its right to rely upon the policy provisions, terms, conditions and exclusions and does not agree to pay any settlements that may be negotiated or judgments that might be rendered against you, hereby reserving all of its rights under the policy. It is further understood, of course, that you do not waive your right to contest the validity of our position.
Unless you send us written notice to the contrary by Certified Mail within ten days, we shall assume that you agree to our handling of this matter, subject to the full reservation of all of our rights. If you do not agree with this, please notify us in writing immediately.”

On March 11, 1986, American Family filed the declaratory judgment action. Apparently the only significant asset available to pay any part of the $599,000 wrongful-death judgment is the homeowner’s policy coverage. American Family’s complaint sought a determination that it had no duty to defend or provide coverage because of the failure to provide prompt notice of the underlying occurrence. Subsequently, the complaint was amended to include the defense of the insured’s act being an intentional tort which would not be covered by the policy.

Blackburn filed a motion for summary judgment in this action on October 17, 1988, contending American Family was estopped from asserting noncoverage because American Family had failed to provide a defense for the wrongful-death action and had failed to bring the declaratory judgment to resolution prior to the completion of the wrongful-death trial. The wrongful-death case resulted in a verdict returned on September 23, 1988. Blackburn’s motion for summary judgment was denied, and defendant now contends the trial court erred in so ruling.

American Family initially contends Blackburn and Johnson waived any error relating to the denial of the summary judgment because their notice of appeal did not refer to the court’s adverse ruling against them. The notice of appeal did ask for reversal of the trial court’s later summary judgment in favor of American Family. We find Burtell v. First Charter Service Corp. (1979), 76 Ill. 2d 427, 394 N.E.2d 380, controlling. In Burtell, the supreme court observed that an appeal from a subsequent final order draws in question all prior nonfinal orders and rulings which preceded the judgment. (Burtell, 76 Ill. 2d at 433, 394 N.E.2d at 382.) The prior denial of defendant’s motion for summary judgment, absent a Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)) finding, was not an appealable order and falls within the Burtell rule. See also Lakeview Trust & Savings Bank v. Estrada (1985), 134 Ill. App. 3d 792, 804-05, 480 N.E.2d 1312, 1321-22.

American Family would not have owed a duty to defend or to pay if the wrongful-death action had alleged only an intentional act. However, both intent and negligence were alleged. As indicated by previous decisions of Illinois courts, defending both claims, intentional and negligent acts, would have put American Family in a position of conflict, since a verdict based on an intentional act would free American Family from coverage, while a verdict based upon negligence would result in coverage. When such conflicts arise, insurance companies must be freed from the responsibility to defend, but are generally responsible for paying the expenses incurred by the insured in defending. Thornton v. Paul (1978), 74 Ill. 2d 132, 384 N.E.2d 335.

In the present case, the defense of the wrongful-death action was undertaken on behalf of the estate by private counsel who had previously accepted a $20,000 retainer fee in the criminal case against Wendell. Wendell’s prosecution obviously terminated upon his death, and his widow requested a refund for a portion of the $20,000. The attorney refused a refund, but offered instead to defend the wrongful-death action without additional cost. At no time did American Family offer to defend or to pay for the defense. At no time was American Family requested to defend or pay for the defense. The actual defense- had proceeded from July 6, 1982, for a period of three years prior to American Family having received notice of the occurrence. Deposition evidence indicated that Johnson, individually and as administrator, indicated no interest in American Family’s providing or paying for the defense.

The confusion in the present case arises because Wendell and subsequently his estate were already being defended at the time American Family received notice of the occurrence. The attorney fees were paid as a result of the refusal to refund part of the criminal charges. There also does not appear to have been any demand on American Family to defend, and we have not found a case indicating an insurance company has a responsibility to notify the insured of its duty to defend or pay for the defense. Considering the factors which existed in this case, we conclude the trial court was correct in holding against Blackburn and Johnson on this argument.

Blackburn next contends that American Family is estopped from raising policy defenses due to its failure to resolve the declaratory judgment prior to the resolution of the underlying tort action. We do not agree.

The declaratory judgment initially sought only to litigate the failure of the notice issue, which alone could have been determined prior to the tort action. That issue did not necessarily involve the question of whether Wendell’s acts were negligent or intentional. However, the negligent versus intentional issue was made a part of the declaratory judgment action after the jury verdict on September 23, 1988, and, in reality, was recognized by all parties once American Family was notified of the occurrence. As we have stated, it was specifically mentioned in the initial letter to Johnson.

We recognize that in many cases it would be best to litigate the question of coverage before trial of the negligence issue. However, problems arise when the coverage issue is “closely and directly connected with the issue” of liability to an injured party. (See Great American Insurance Co. v. Ratliff (E.D. Ark. 1965), 242 F. Supp. 983, 990; Thornton, 74 Ill. 2d at 157, 384 N.E.2d at 345-46.) The Thornton opinion explains that an injured party should not be forced, by a declaratory judgment action, to litigate the liability issue in a different forum than that of his choice, at a different time, and with a different order of proof. Thornton, 74 Ill. 2d at 158, 384 N.E.2d at 346.

While we have not found a declaratory judgment case similar to the present one which initially only alleged insufficient notice and then amended the complaint, after the underlying case verdict, to include the negligent versus intentional issue, we conclude under these facts it would be improper to bar American Family from the policy defense because of the timing of the declaratory judgment decision. We acknowledge our reasoning is based in part upon our earlier determination that American Family could not, because of the conflict, defend; and, because Wendell’s estate was already defending at the time, American Family would have received notice of the occurrence.

We next dispense with the claim that American Family had effective notice of the occurrence because its local agent read of the death of Phillip M. Johnson and the resulting criminal action against Wendell. The complexity of the criminal action, which would indicate an intentional act, negates this contention. The policy does not cover intentional acts, and to place a burden on all insurance agents to infer possible policy coverage whenever they read of an act of violence is unreasonable.

The final issue is whether notice to American Family was reasonable under the circumstances and, therefore, complied with the policy requirements. Provisions in policies stating when the insurer must be notified of a covered occurrence have generally been interpreted to require notification of the company within a reasonable time, considering all the facts and circumstances of the particular case. (Barrington Consolidated High School v. American Insurance Co. (1974), 58 Ill. 2d 278, 281, 319 N.E.2d 25, 27.) While an absence of actual prejudice to the insurer may be a factor to be considered in determining the propriety of the notice, it does not conclusively establish the timeliness of the notice. (Mitchell Buick & Oldsmobile Sales, Inc. v. National Dealer Services, Inc. (1985), 138 Ill. App. 3d 574, 581, 485 N.E.2d 1281, 1286; United States Fidelity & Guaranty Co. v. Maren Engineering Corp. (1980), 82 Ill. App. 3d 894, 898, 403 N.E.2d 508, 511.) Thus, where the notice is late, the issue is not whether the insurer has been prejudiced but rather whether reasonable notice has been given. Mitchell Buick & Oldsmobile, 138 Ill. App. 3d at 581, 485 N.E.2d at 1286; Maren Engineering, 82 Ill. App. 3d at 898, 403 N.E.2d at 511.

Among factors to be considered in determining if an insured acted within a reasonable time in giving notice are (1) the presence or absence of the insured’s sophistication in the world of commerce and insurance; (2) awareness on the part of the insured that an occurrence as defined by the policy has taken place; and (3) once aware of an occurrence, the diligence with which the insured ascertains whether policy coverage is available. (Brownlee v. Western Chain Co. (1979), 74 Ill. App. 3d 804, 808-09, 393 N.E.2d 515, 518.) Generally, the question of what is reasonable notice is a question of fact but, if there is no controversy as to the facts, the question of reasonableness is a question of law. Olivieri v. Coronet Insurance Co. (1987), 173 Ill. App. 3d 867, 871, 528 N.E.2d 986, 989.

Blackburn maintains that a review of the circumstances establishes, as a matter of law, that notice in this case was reasonable. She acknowledges the incident happened on July 4, 1981, and that American Family did not find out about it until Blackburn served a subpoena on it in September 1985. However, she believes there are circumstances which explain the delay.

First, she observes the lawsuit was not filed until July 6, 1982. Johnson testified that neither she nor Wendell anticipated being sued because Blackburn had only spoken of suing certain dramshops. When the papers were received in 1982, Wendell was near death from cancer and had deteriorated physically, emotionally, and mentally. Johnson admitted reading the papers, but stated she could not understand half of it. She also stated that she left all insurance matters to Wendell and she had never been involved in a lawsuit. Blackburn also points out Johnson had only a high school education and had no knowledge that an incident of this type would be covered by her homeowner’s insurance. Thus, Black-bum maintains that, due to Johnson’s education, experience, and the circumstances surrounding the incident, it is perfectly reasonable she did not notify American Family immediately.

Blackburn cites several cases she believes support her position. One is Farmers Automobile Insurance Association v. Hamilton (1975), 31 Ill. App. 3d 730, 335 N.E.2d 178, in which the insured shot another person on February 7, 1970. On February 12, 1971, the insured notified insurance company that he had been served with summons on a personal injury suit. The court found that because this was the type of incident which a reasonably prudent person would not believe to be covered by the homeowner’s policy, it cannot be concluded as a matter of law that the notice was late and a question of material fact had been raised concerning the propriety of the notice.

In Barrington Consolidated High School, the victim was allegedly injured in 1965. However, suit was not filed until 1969, at which time the insurance company was notified. The supreme court concluded this notice was timely. It observed that until the suit was filed in 1969, there was no ground for the insured to reasonably believe that a claim was likely to be made.

Blackburn also relies on Allstate Insurance Co. v. Carioto (1990), 194 Ill. App. 3d 767, 551 N.E.2d 382. There, the insured, a psychologically disturbed 19-year-old, attacked and injured the victim on the streets of Chicago in 1982 and was criminally prosecuted. Approximately 31 months later, he was served with summons for a civil suit which his criminal defense attorney turned over to the insurance company. The court found the notice proper because, under the circumstances, the insured cannot be expected to know that a tort claim arising out of this incident would be covered by his mother’s homeowner’s insurance policy, and because the insurer suffered no prejudice by the delay.

Blackburn argues that similarly in the present case Johnson cannot be expected to know that her homeowner’s insurance would cover a knifing incident which occurred at a campground far from her home. We note that notices were given in the three cited cases soon after the tort actions commenced.

Blackburn also observes that notice by the injured party is as effective as notice supplied by the insured for the purpose of fulfilling the insured’s obligation, and is measured by the same standards as if it had been conveyed by the insured. (Olivieri, 173 Ill. App. 3d at 871, 528 N.E.2d at 989.) She observes that due to Johnson’s confusion about the existence of a policy potentially covering the incident, Blackburn could not have learned about existence of the policy through due diligence. She observes that in April 1984 Johnson was still saying under oath that no such insurance existed, and that it was not until October 1984 that the possibility of the existence of coverage was recognized. Thus, Blackburn believes she acted reasonably.

Furthermore, Blackburn argues that American Family suffered no prejudice. First, she observes that American Family did not attempt to undertake any investigation. Thus, she maintains American Family cannot complain of prejudice. Second, she argues that all the witnesses had given statements and their names are contained in police reports and reports for the civil trial. She maintains no further investigation need be done. She observes American Family argued at trial that it was prejudiced because it did not have an opportunity to interview Wendell, because Wendell died before American Family knew of the incident. She suggests this position is misleading. She notes that Wendell was charged with a serious criminal offense up to the date of his death and that American Family’s counsel, Van Horn, acknowledged Wendell’s criminal defense attorney most likely would have instructed Wendell not to speak with American Family about the incident. Thus, she maintains American Family suffered no prejudice in this regard.

American Family responds that a delay of over four years from the time of the incident and over three years from the time of the suit being filed is unreasonable. It makes the argument that Johnson was sophisticated, an argument that is not substantiated in the record.

American Family does argue that Johnson was represented by counsel throughout the proceeding. It maintains that the court must not only look at the insured but also at the sophistication of persons acting on her behalf. It insists the fact Johnson was represented the entire time indicates she should have had knowledge of the possible coverage much earlier and, therefore, that delay is not excusable.

American Family also argues that even if it is accepted that Johnson did not become aware of the possibility of coverage until October 1984, she still did not notify American Family. American Family did not receive notice until it received a subpoena from Blackburn almost one year later. American Family observes there is no explanation for this failure.

As a general rule, most time delays in giving a notice of this sort would result in relief for the insurer, and American Family cites a number of cases in which that happened. Blackburn cites cases she believes create exceptions and support her position. However, as we have said, it appears from reviewing the facts of those cases (Carioto, 194 Ill. App. 3d 767, 551 N.E.2d 382; Barrington Consolidated High School, 58 Ill. 2d 278, 319 N.E.2d 25; Hamilton, 31 Ill. App. 3d 730, 335 N.E.2d 178) that the delay was between the occurrence and the insured becoming aware of a lawsuit through the service of papers. In each case, the insurer appeared to be promptly notified once the insured was served with the papers. This is not what happened in the current case. The incident occurred in July 1981, and the insured were served with papers in July 1982. It was not until over three years later that the insurer was notified. Even if the conduct of Johnson and counsel can be excused until October 1984 when Johnson became aware of possible coverage, there is no explanation for the failure to notify the insured at that time. This further delay itself is unreasonable and, without any explanation, could defeat coverage.

We consider Blackburn’s argument that American Family was not prejudiced by the delay in receiving notice to be speculative. Assuming notice immediately after the wrongful-death action was commenced, American Family would have had the opportunity to investigate while the occurrence was much fresher in the minds of the various witnesses. Perhaps Wendell could have been deposed, perhaps not. Perhaps settlement would have been discouraged, and perhaps not. In our view, having the right to so act is part of the benefit of the prompt-notice provision. We conclude, based upon the facts in this case, that there was a violation of the prompt-notice condition, and that the trial court’s summary judgment order in favor of American Family was correct. Any other decision would cast doubts on the enforceability of any prompt-notice insurance policy provision.

Affirmed.

GREEN and McCULLOUGH, JJ., concur.


author: JUSTICE KNECHT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES ROBERT LAWRENCE, Defendant-Appellant.
    Fourth District
    No. 4—90—0317
    Opinion filed January 31, 1991.
    Daniel D. Yuhas and Judith L. Libby, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Thomas J. Difanis, State’s Attorney, of Urbana (Kenneth R. Boyle, Robert J. Biderman, and Monroe D. McWard, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE KNECHT

delivered the opinion of the court:

Defendant James R. Lawrence was charged and convicted of the offense of unlawful possession with intent to deliver more than 100 grams of a substance containing cocaine, a Class X felony (Ill. Rev. Stat. 1989, ch. 56½, par. 1401), and was sentenced to nine years’ imprisonment. Defendant appeals, contending the conduct of the law enforcement officers involved was so outrageous his due process rights were violated. Defendant contends the police sold him a large quantity of cocaine in order to ensure a mandatory minimum penalty of nine years. We affirm.

At the jury trial, James Smith testified he was arrested on August 4, 1989, for possession of nine grams of cocaine. He later agreed to assist the Champaign County Interagency Task Force (Task Force) and provided the name of his supplier, Juan Brown. On September 13, 1989, Smith went to Brown’s residence twice with undercover Officer Davis from the Task Force. Brown was not at home either time. On one of these occasions, Smith inadvertently encountered defendant, who was also approaching Brown’s home. Defendant told Smith if he was not able to contact Brown, Smith could contact him to be supplied with cocaine. To facilitate the transaction, defendant gave Smith his telephone pager number. Defendant indicated to Smith he sold quite a bit of cocaine but also tried to keep a low profile.

Later on the evening of September 13, Smith went to defendant’s residence with Officers Davis and Daniels. Smith’s purpose now was to make a controlled buy of cocaine from defendant, and he had been supplied with $120 from the Task Force. When Smith first arrived at defendant’s residence, defendant was not home. Smith later returned to the residence and purchased 1.6 grams of cocaine. Smith entered the residence alone while the officers waited in the car.

Two days later, on September 15, Smith again met with members of the Task Force for the purpose of making another controlled buy of cocaine from defendant. However, when contacted, defendant stated he did not have any cocaine to sell, as he was waiting to obtain cocaine himself. The Task Force then changed its plan and decided to see if defendant would be interested in buying cocaine from them.

Smith, again with Officers Davis and Daniels, went to defendant’s home. Smith and Davis went to the door while Daniels waited in the car with the cocaine. Jeff Schumacher answered the door and stated defendant was not home. Smith and Davis indicated they would return later. When Smith and Davis returned for the second time, defendant was still not home. They decided to abandon their plan, and the group dispersed. Smith later inadvertently encountered defendant in his car at the intersection of Prospect and Kirby Streets in Champaign. Both cars pulled into a parking lot so the men could converse. Defendant expressed his willingness to purchase five ounces of cocaine for $3,000.

Smith contacted the members of the Task Force, and Smith and Davis again approached defendant’s residence. Defendant admitted them into his apartment. After defendant displayed the $3,000 in cash, Davis agreed to go to the car to get the cocaine. Davis came back with the cocaine and handed it to defendant, who gave Davis the currency. Defendant and Schumacher tasted the cocaine and Schumacher went to a back room to weigh it. Davis counted the money and conversed with defendant until the Task Force arrived to place defendant and Schumacher under arrest. During these transactions, Smith was equipped with a sound-recording device, and a tape and transcript were produced of Smith’s conversations.

Rantoul police officer Randy Davis testified he was a member of the Task Force. He confirmed his agency was investigating Juan Brown as a suspected drug supplier and James Smith was assisting them in this investigation. Davis corroborated Smith’s account of the September 13 cocaine buy from defendant. Davis also corroborated Smith’s testimony concerning the events of September 15. Davis admitted defendant had not asked Smith to assist him in obtaining any cocaine.

The testimony of Smith and Davis was corroborated by Officer Troy Daniels and Lieutenant Walter Wolfe. Daniels also executed the search warrant of defendant’s home and cataloged the items seized. Wolfe assisted in the execution of the search warrant and also testified regarding his post-arrest conversation with defendant. After advising defendant of his Miranda rights, Wolfe informed defendant he was interested in obtaining information about other cocaine sellers. Defendant offered the name of Juan Brown and indicated he had dealings with Brown over the previous six months. Defendant stated he bought an average of six ounces of cocaine per week from Brown. Defendant also told Wolfe he could name other of his own customers.

The defense presented no evidence. Defendant asserted a defense of entrapment. Intertwined with this defense was the argument the government’s conduct in selling him a large quantity of cocaine was so outrageous it violated his right to due process. For the purposes of appeal, defendant raises only the due process argument.

The United States Supreme Court acknowledged the potential validity of an outrageousness defense in United States v. Russell (1973), 411 U.S. 423, 36 L. Ed. 2d 366, 93 S. Ct. 1637. In Russell, the defendant was convicted of having unlawfully manufactured and processed methamphetamine and having sold and delivered the drug. His defense was entrapment. Before the Supreme Court, the defendant also argued the level of the government agent’s involvement in the manufacture of methamphetamine was so high that the prosecution of the drug’s manufacture was a violation of due process. The Supreme Court disagreed, and stated:

“While we may some day be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction, cf. Rochin v. California, 342 U.S. 165[, 96 L. Ed. 183, 72 S. Ct. 205, 25 A.L.R.2d 1396] (1952), the instant case is distinctly not of that breed.” Russell, 411 U.S. at 431-32, 36 L. Ed. 2d at 373, 93 S. Ct. at 1643.

While Illinois case law has not reversed or barred a conviction based upon this theory, other jurisdictions have. Defendant cites People v. Isaacson (1978), 44 N.Y.2d 511, 378 N.E.2d 78, 406 N.Y.S.2d 714, in support of his argument. In Isaacson, the Court of Appeals of New York held police misconduct warranted dismissal of the defendant’s indictment for the sale of cocaine. The police misconduct in Isaacson was the direction from the police to the informant that the transaction must take place in New York even though the defendant feared New York’s drug laws and did not want to enter the State, and to purchase two ounces of cocaine in order to obtain a conviction for a more serious crime. To cause the defendant to sell drugs in New York, the informant kept changing the destination of the sale progressively northward toward the Pennsylvania-New York border, at a spot where it would be difficult for the defendant to ascertain his exact location. On appeal, the court of appeals stated even though the defendant failed to make out. an affirmative defense of entrapment because of his predisposition to commit the crime, the police conduct when tested by due process standards was so egregious and deprivative as to bar the prosecution.

Authority from other jurisdictions is not binding upon Illinois courts. (People v. Chandler (1980), 88 Ill. App. 3d 644, 411 N.E.2d 283.) Further, this authority is not applicable here, because the police conduct in this case is not egregious. Defendant contends it is outrageous for police to select a specific amount of cocaine for a controlled sale and thereby determine the degree of felony and the mandatory minimum penalty. Defendant is also offended the cocaine was offered at a “bargain-basement” price, thereby enticing defendant to accept an offer too good to refuse. We do not share defendant’s sense of outrage.

Here, defendant was not even the initial target of the police investigation. According to the record, the police kept “tripping over the defendant” in their investigation of Juan Brown. The only testimony in the record regarding the determination of the amount and price of the cocaine sold to defendant was by Officer Davis. His testimony was the five ounces was the amount of cocaine the Task Force had available to it in the type of packaging which would generally be considered a higher-quality cocaine. Davis also testified the price of $3,000 for the five-ounce amount of cocaine would be at the lower end of the market price, but a larger quantity sale would often result in some sort of discounted or cheaper price per ounce. Davis also testified the final determination regarding the price of $3,000 was made by Lieutenant Wolfe. No questions were asked of Wolfe regarding this topic.

Based upon the evidence, neither the amount nor the price at which the cocaine was sold violated any due process rights. The judgment of the trial court is affirmed.

Affirmed.

LUND, P.J., and McCULLOUGH, J., concur.


author: JUSTICE GREEN

text:
    BRUCE SIDWELL, a Minor, by Luanna Sidwell, his Mother and Next Friend, Plaintiff-Appellant, v. GRIGGSVILLE COMMUNITY SCHOOL DISTRICT 4, Defendant-Appellee.
    Fourth District
    No. 4—90—0404
    Opinion filed January 29, 1991.

      F. Donald Heck, Jr., of Pollock, Ennis & Heck, of Quincy, for appellant.
    Larry D. Kuster and H. Allen Yow, both of Rammelkamp, Bradney, Dahman, Kuster, Keaton & Fritsche, P.C., of Jacksonville, for appellee.
   JUSTICE GREEN

delivered the opinion of the court:

On May 23, 1989, plaintiff Bruce Sidwell, a minor, by his mother, Luanna Sidwell, brought suit in the circuit court of Pike County against defendant Griggsville Community School District 4 seeking damages in tort for personal injuries. On defendant’s motion, that court dismissed an amended complaint in bar of action on May 14, 1990. Plaintiff has appealed. We reverse and remand.

The amended complaint alleged that on August 30, 1988, while a student in a physical education class conducted on property owned by defendant and used by defendant “as a school and playground for its students,” plaintiff fell because of a rut in the ground and was injured. The complaint charged that defendant was negligent because it “(a) [allowed [the] rut to continue to be formed and deepened in the playground, [and] (b) [flailed to fill in the rut to make the playground level.” In dismissing the amended complaint, the circuit court ruled the defendant was immune from liability for negligence under the facts alleged in that complaint.

Article XIII, section 4, of the Illinois Constitution of 1970 provides that “[e]xcept as the General Assembly may provide by law, sovereign immunity in this State is abolished.” (Ill. Const. 1970, art. XIII, §4.) Sections 24 — 24 and 34 — 84a of the School Code (Code), which apply to districts of less than 500,000 population and those with a greater population, respectively, both state:

“Teachers and other certificated educational employees shall maintain discipline in the schools, including school grounds which are owned or leased by the board and used for school purposes and activities. In all matters relating to the discipline in and conduct of the schools and the school children, they stand in the relation of parents and guardians to the pupils. This relationship shall extend to all activities connected with the school program, including all athletic and extracurricular programs, and may be exercised at any time for the safety and supervision of the pupils in the absence of their parents or guardians.” (Emphasis added.) Ill. Rev. Stat. 1987, ch. 122, pars. 24 — 24, 34 — 84a.

Because of the language in sections 24 — 24 and 34 — 84a of the Code in regard to educational employees standing in loco parentis to school pupils, in Kobylanski v. Chicago Board of Education (1976), 63 Ill. 2d 165, 347 N.E.2d 705, the court held that such educational employees and their employing school districts should have the same immunity for their actions as parents have. That immunity was stated as immunity from liability to a child for injuries resulting from conduct which was merely negligent. (Mroczynski v. McGrath (1966), 34 Ill. 2d 451, 216 N.E.2d 137.) The scope of that immunity was described as corresponding to the language of sections 24 — 24 and 34— 84a which refers to “ ‘all matters relating to the discipline in and conduct of the schools and the school children.’ ” (Kobylanski, 63 Ill. 2d at 172, 347 N.E.2d at 708, quoting Ill. Rev. Stat. 1967, ch. 122, pars. 24 — 24, 34 — 84a.) The alleged negligence in Kobylanski and its companion case concerned the supervision given to pupils in physical education classes while they were performing gymnastic maneuvers.

In Gerrity v. Beatty (1978), 71 Ill. 2d 47, 373 N.E.2d 1323, the Kobylanski rule of immunity was deemed inapplicable to conduct of a school district’s agents in negligently providing inadequate athletic equipment for a high school football player. The court reasoned that the furnishing of equipment did not involve the close teacher or coach relationship with pupils nor the providing of supervision which existed in Kobylanski. In Prest v. Sparta Community Unit School District No. 140 (1987), 157 Ill. App. 3d 569, 510 N.E.2d 595, the Fifth District Appellate Court extended the rule in Gerrity to the situation where a school district was alleged to have negligently erected and permitted to remain, without protective padding, a concrete riser near the playing area of a school gymnasium causing injury to a student who fell against it. In a split decision, the court concluded the conduct of the district in regard to the premises was like that in Gerrity in regard to equipment and did not involve the close teacher-pupil relationship involved in Kobylanski.

Subsequent to these cases, in Brock v. Rockridge Community Unit District No. 300 (1989), 183 Ill. App. 3d 447, 539 N.E.2d 445, the Third District Appellate Court dealt with the question of alleged negligence of a school district in failing to properly maintain the condition of a playing field used for playing touch football in a supervised physical education class. A divided court held these allegations, even if properly pleaded, would not set forth a cause of action because of the precedent of Kobylanski. The fact the class was alleged to be under the supervision of a teacher was deemed to make the situation analogous to that in Kobylanski. The Prest analysis was rejected on the basis that the court had extended the Gerrity precedent more than the supreme court had intended. The court noted that Kobylanski had referred to the portion of section 24 — 24 of the Code which refers to the loco parentis doctrine as applying to all activities of a school program and involving not only the supervision but also the safety of pupils.

The circuit court rendered its decision on the basis that the precedent of Brock was controlling. It acted properly under the Illinois rule of stare decisis between the various districts of the appellate court. (Garcia v. Hynes & Howes Real Estate, Inc. (1975), 29 Ill. App. 3d 479, 331 N.E.2d 634.) Under that rule, in the absence of a supreme court decision directly in point, a circuit court should follow the precedent of the appellate court of its district, if such precedent exists. If not, it is to follow the precedent of other districts if there is such precedent. If that of other districts is in disagreement, the cir-cult court may then choose which precedent it considers to be most nearly correct.

Here, the circuit court recognized the existence of this court’s decision in Holsapple v. Casey Community Unit School District C-1 (1987), 157 Ill. App. 3d 391, 510 N.E.2d 499. There, this court examined the sufficiency of a count of a complaint in tort against a school district. The complaint charged the district with negligence in permitting the existence of a defective door on a school building thereby causing injuries to a pupil attending a district school. We noted that plaintiff relied on a duty set forth in section 3 — 102 of the Local Governmental and Governmental Employees Tort Immunity Act (Act) (Ill. Rev. Stat. 1985, ch. 85, par. 3 — 102). Then, as now, that section stated, in part:

“Except as otherwise provided in this Article, a local public entity has the duty to exercise ordinary care to maintain its property in a reasonably safe condition for the use in the exercise of ordinary care of people whom the entity intended and permitted to use the property in a manner in which and at such times as it was reasonably foreseeable that it would be used ***.” (Ill. Rev. Stat. 1985, ch. 85, par. 3-102(a).)

This court upheld the dismissal of that count on the basis the complaint did not adequately plead negligence. We did not pass on the question of whether governmental immunity was involved. Here, the circuit court properly rejected the Holsapple decision as precedent in regard to governmental immunity and properly accepted Brock as the most analogous case and, thus, the appropriate precedent.

While the circuit court was bound by the precedent of Brock, we are not. (Garcia, 29 Ill. App. 3d at 481, 331 N.E.2d at 636.) The special concurrence of Justice Barry in Brock points out that the Gerrity opinion emphasizes the difference between the close teacher-pupil relationship in regard to discipline, instruction, and safety which was involved in Kobylanski and the furnishing of equipment which was involved in Gerrity. (Brock, 183 Ill. App. 3d at 451, 452, 539 N.E.2d at 448, 449 (Barry, J., specially concurring).) We recognize the broad language of Kobylanski relied upon by the majority opinion in Brock, but Gerrity is a later decision than Kobylanski. The function of maintaining the grounds is much more like the furnishing of equipment than the supervision of the type of gymnastic exercise which pupils are performing. We conclude Gerrity, rather than Kobylanski, controls here.

We have previously referred to section 3 — 102 of the Act. Plaintiff did not plead that section of the Act as a basis for a duty on the defendant, but argues on appeal that recovery is being sought on the basis of the duty in regard to premises as set forth therein. As its title implies, the Act primarily sets forth various types of immunity granted to local units of governments, including school districts. At this stage of the proceedings, defendant has not raised an issue of immunity arising from the Act. Thus, we are not passing upon whether any provision of the Act is applicable here. However, as the immunity arising from the KobylansM doctrine is all that has been raised against the amended complaint, we hold the complaint withstands that attack.

Accordingly, we reverse the judgment dismissing the amended complaint and remand the cause to the circuit court of Pike County for further proceedings.

Reversed and remanded.

STEIGMANN and KNECHT, JJ., concur.