text:
      In re ESTATE OF EDA M. ASCHAUER, Deceased (Edith Aschauer, Objector-Appellee and Cross-Appellant, v. Joseph H. Aschauer, Ex’r of the Will of Eda M. Aschauer, Deceased, Respondent-Appellant and Cross-Appellee).
    Fourth District
    No. 4 — 88—0545
    Opinion filed August 31, 1989.

      John G. Hayes, of Springfield, for appellant.
    Robert T. Lawley, of Routman & Lawley, Ltd., of Springfield, for appellee.
   JUSTICE KNECHT

delivered the opinion of the court:

This appeal is taken from the circuit court of Sangamon County. The circuit court found the estate executor had acted imprudently and surcharged the executor for interest costs incurred during his administration of the estate. We agree the executor was imprudent but find the objector is precluded from raising objections on appeal which were not raised in the circuit court at the time each account was approved.

The decedent Eda M. Aschauer died on April 30, 1978, in Springfield, Illinois. She died testate leaving among her heirs her son Joseph, the executor of her will, and her daughter Edith, the objector in this case. Edith lived with her mother all of her life and during the last years of her mother’s life was responsible for the care of her mother and the running of her mother’s household and financial affairs.

Eda made several specific bequests to Edith. Among them were (1) $10,000, (2) approximately 70 acres of land in Sangamon County, (3) a life estate until Edith’s marriage on approximately 150 acres in Sangamon County, including the family residence, and (4) a life estate until Edith’s marriage in a one-third interest in the access road to the Sangamon County property. The remainder of the estate was to be divided among the children and grandchildren of Eda. This property included an undivided one-half interest in a 640-acre tract of land in Louisiana. The other one-half interest in the Louisiana property was already owned by Eda’s heirs as beneficiaries of her husband’s estate.

On May 29, 1978, letters testamentary were issued appointing Joseph as the executor of Eda’s estate by the circuit court of Sangamon County.

THE LOUISIANA REAL ESTATE

On January 5, 1979, the executor and objector, as well as all other heirs, filed a petition in Louisiana to be put in possession of the one-half of the Louisiana property included in the estate. On that same day the judicial court of St. Landry Parish, Louisiana, granted the petition. This effectively distributed the Louisiana real estate to the heirs. Subsequent income from this property went to the individual heirs as owners, rather than to the estate. This income would have amounted to approximately $40,000 for the period the land was outside the estate.

Edith later brought an action in Louisiana to recover the lands that had been distributed. The executor refused to join in the suit and was named as the defendant. The land then passed back into the estate and was sold on September 15, 1985. Net proceeds to the estate were $66,539.34.

THE ESTATE TAXES

On January 23, 1979, the executor filed Federal estate and Illinois inheritance tax returns. In the Federal estate tax return the executor exercised an option provided by section 2032A of the Internal Revenue Code (Code) (26 U.S.C. §2032A (1976)). This section provides inter alia, that where farm real estate meets certain use and other requirements, it may be valued at a level much lower than its market value for the purposes of determining the estate tax. Had the election here been successful, the result would have been a greatly reduced tax burden on the estate. However, one of the requirements under this section is that in the eight years prior to the death of the decedent there must have been five years during which there was material participation by the decedent or a member of the decedent’s family in the operation of the farm. 26 U.S.C. §2032A(b)(1)(C)(ii) (1976).

The executor would have reduced the tax burden on the estate by approximately $147,000 by this election had it been accepted by the Internal Revenue Service (IRS). Under this election, the farmland located in Illinois was valued at $135,000 instead of the anticipated $547,000. In addition, the executor made an election under section 6166 of the Code (26 U.S.C. §6166 (1982)). This allowed the Federal estate taxes to be paid over a period of 14 years at an interest rate of 4% per year. Tax payments were deferred for five years and then the tax was paid in 10 equal yearly installments. Interest payments were to be made throughout the entire 14-year period.

The IRS disallowed the section 2032A election and raised the estate tax obligation to the Federal government from $31,435.96 to $165,787.55. It allowed the section 6166 election. The IRS issued its closing letter on November 12, 1981. A supplemental Illinois inheritance tax return was filed on December 2,1981.

THE ESTATE ACCOUNTING

The executor filed a series of seven accounts covering the period from May 29, 1978, through March 15, 1986. The first four accounts, encompassing the period up to June 30, 1983, were filed and approved by the court with only minor objections. Appropriate notice was given to the relevant parties in each case. Included in these accounts were $21,467.77 in interest to the IRS, loans of $36,500 to the estate from the Illinois National Bank (INB), and interest payments of $1,184.74 to service this debt.

On November 21, 1984, the executor filed the fifth account for July 1, 1983, through June 30, 1984. He sought to be credited in amount of $2,308.26 for interest on the INB loans and $5,164.36 for interest on the Federal taxes. No immediate approval was sought for this account.

On November 1, 1985, the executor filed his sixth account for July 1, 1984, through July 30, 1985. This account included interest to INB for $5,067.09 and to the IRS for $4,834.43. An additional $17,088.90 had been borrowed from INB at this point. The executor did not seek immediate approval of the account at the time it was filed.

On July 1, 1986, the executor filed his seventh and final account for the period July 1, 1985, through March 15, 1986. This account asked for approval of $5,653.25 to INB for interest. It reported the completion of partition proceedings of the Illinois farmland. The net proceeds of the sale after the payment of Federal estate taxes of $108,322 was $82,154.52.

On July 1, 1986, the executor set the fifth, sixth, and seventh accounts for hearing. On September 18, 1986, the objector filed objections to these three accounts. The objector alleged the executor had improperly borrowed money and paid interest to INB, had unnecessarily paid interest to the IRS, the final account showed appraisals at far less than at the time of decedent’s death and the executor’s formula for computing the value of the objector’s life estate was incorrect.

On October 15, 1987, after a hearing on the objections, the court entered its order disapproving the fifth, sixth, and seventh accounts. The court found the executor’s attempt to qualify the estate under section 2032A of the Code was not a reasonably prudent act, the estate was unnecessarily kept open, and the computation of the life estate value was properly made from the date of closing of the estate, not the date of the decedent’s death. As a result, it disallowed the payment of the Louisiana property taxes by the estate on behalf of the individual heirs and interest payments to the Illinois National Bank and IRS as unnecessary expenses.

The finding of the circuit court that it was not reasonably prudent for the executor to attempt the section 2032A election was not against the manifest weight of the evidence. The evidence showed the decedent was an elderly woman in poor health who took little interest in the operation of the family farm. Prior to attempting the election, the executor did not make an adequate investigation of the decedent’s circumstances. While we are cognizant of the complexity which often attends the application of the Federal tax code, section 2032A clearly requires the material participation of the decedent in five of the eight years prior to death. Given the circumstances revealed in the evidence here, we cannot say the circuit court erred in finding as it did.

The trial court surcharged the executor the interest payments made to the IRS and the Illinois National Bank for the period after November 21, 1981. The interest cost to the estate came to a total of $50,391.17. However, of this amount, $25,648.51 was made during the time covered by the first four accounts presented to and approved by the court. This included $448.33 in taxes paid on the Louisiana real estate while it was in the hands of the individual heirs. The objector had notice of all these hearings but objected to only one of the Louisiana tax payments.

The executor argues the approval by the court of each account closes that period from further review and is res judicata for the matters contained in each account. If accepted, the executor’s argument would foreclose the circuit court from surcharging interest paid during those periods where an accounting had been made and approved by the court. The question before us is the effect of the periodic accounts made in a probate administration as opposed to the final account.

Under the 1939 Probate Act interim accounts could be set aside or modified at the final accounting. (Ill. Rev. Stat. 1975, ch. 3, par. 1 et seq.; In re Estate of Ekiss (1963), 40 Ill. App. 2d 1, 188 N.E.2d 348.) This question has arisen here for the first time under the new Probate Act of 1975 and specifically under section 24 — 2, which went into effect on January 1, 1976.

“Notice of accounting — Effect. Notice of the hearing on any account of a representative of a decedent’s estate shall be given as the court directs to unpaid creditors and to every person entitled to a share of the estate who has not received that share in full. If the account is approved by the court upon the hearing, in the absence of fraud, accident or mistake, the account as approved is binding upon all persons to whom the notice was given. No notice need be given to any person from whom a receipt in full is exhibited to the court or who waives notice.” (Ill. Rev. Stat. 1977, ch. 110½, par. 24 — 2.)

The clear language of the statute requires us to overturn earlier authority based on the prior act and to hold the approval of an account by the court is binding on all parties who had notice and is res judicata for that period. In this case, the objector had notice of all the hearings for presentation of the accounts. The objector raises no allegations of fraud, accident, or mistake in the accounting. The accounts for the periods approved by the circuit court cannot be reopened under- these circumstances. For this reason the circuit court erred when it surcharged the executor for interest costs in the accounts which it had already approved. As we reverse on these grounds, we need not consider whether the objector is estopped by her consent to the section 2032A election to objecting to the IRS interest payments. Interest directly attributable to this election was accrued only until the IRS issued its closing letter and was part of the accounts approved by the court.

Having held the first four accounts cannot be reopened, we turn next to the surcharge for the interest payments made in the fifth, sixth, and final accounting periods. These accounts were presented but not approved by the court until the final account was made and there are objections raised to the interest payments in each of them. Illinois law provides an executor can be surcharged for diminution of an estate caused by his failure to liquidate the estate’s assets within a reasonable time. (In re Estate of Lindberg (1981), 98 Ill. App. 3d 212, 424 N.E.2d 1161.) It is the duty of an administrator or executor to close an estate promptly and he has no right to continue a decedent’s business without incurring personal liability except in compliance with statute with respect thereto. In re Estate of Connors (1959), 23 Ill. App. 2d 240, 161 N.E.2d 871.

In this case, it was not the executor’s section 2032A election that caused a diminution in the estate but rather his failure to close the estate promptly. The circuit court’s memorandum of opinion and final order both reflect the executor was surcharged not for poor judgment in attempting the election but for keeping the estate open long after the section 2032A election had been denied and incurring substantial interest costs as a result. The executor’s testimony showed he was aware the Illinois farmland was capable of producing an income of only about $6,000 a year. He knew the financial condition of the estate continued to decline from the opening of his administration with a $30,000 cash surplus to the closing with the estate in considerable debt. Clearly there was a diminution of the estate for which the executor should be held responsible. He should be surcharged for the interest expenses incurred in the fifth, sixth, and final accounting periods when the estate should have been closed and the objector properly objected in a timely fashion. However, the estate also realized income from the Illinois farmland during this period and the surcharge to the executor should be offset by the amount of income received.

In his final account, the executor apportioned $108,322.71 of the Federal estate tax among the three parcels of Illinois farmland. Because the value of the objector’s life estate was based on the net value of the life estate property after subtraction of the proportioned estate taxes, she argues her tax burden is disproportionate in comparison with those of the other beneficiaries. The objector has cited Roe v. Estate of Farrell (1978), 69 Ill. 2d 525, 372 N.E.2d 662, for the proposition the Federal estate tax must be assessed on the property as a whole and cannot be apportioned. The executor responds this is a misapplication of Roe and it is distinguishable on its facts in that it involved a distinction between probate and nonprobate assets. However, the language of Roe does not limit its application to a situation involving nonprobate assets. The supreme court wrote: “Unlike our inheritance tax, which is a tax on the right of succession to the beneficial interest in the property of a decedent [citations], the Federal estate tax is imposed on the transfer of the taxable estate as a whole [citation].” (Roe, 69 Ill. 2d at 529, 372 N.E.2d at 664.) The burden of the Federal estate tax falls directly upon the corpus of the estate as a whole and is payable by the executors. Lawless v. Lawless (1958), 17 Ill. App. 2d 481, 150 N.E.2d 646.

The trial court erred in allowing apportionment of the Federal taxes. The Federal estate tax must be paid from the whole of the estate. The net proceeds to the objector will necessarily be diminished by the estate tax whether the tax is apportioned to the individual properties or laid upon the estate as a whole. The calculation of the objector’s life estate should, however, be based on the portion of the property representing the life estate taken from the whole estate diminished by the Federal estate taxes, not apportioned among the individual properties. The objector is entitled to whatever benefit she may derive from the recalculation.

Finally, the objector claims the executor should have used her age at the time of the death of the decedent to calculate her life estate value rather than her age at the time of the final accounting. The objector apparently wishes to recover the income of the life estate which she did not receive during the executor’s administration.

In Illinois, the sale of a life estate is governed by section 17 — 120 of the Code of Civil Procedure. (Ill. Rev. Stat. 1985, ch. 110, par. 17 — 120.) This section provides in part:

“When [a life estate] is sold, the value thereof may be ascertained and paid over in gross, or the proper proportion of the funds invested, and the income paid over to the party entitled thereto, during the continuance of the estate.” (Ill. Rev. Stat. 1985, ch. 110, par. 17-120.)

The statutory language indicates the proper time for the valuation of a life estate is the time of sale. The valuation of the life estate was made on the closing of the estate shortly after the sale of the life estate property. It was proper for the trial court to use the objector’s age at that time for the calculation. The objector may not use the calculations of the life estate value as a vehicle to recover income which she should have claimed directly from the estate. For this reason there is no ground on which to disturb the findings of the trial court on this issue.

For the reasons discussed above, we affirm the circuit court’s finding that the section 2032A election was not reasonably prudent. However, we reverse the circuit court’s calculation of the surcharge and remand so the court may recalculate the surcharge in conformity with this opinion. We also remand so the circuit court may recalculate the value of the life estate with the Federal estate tax on the estate as a whole, rather than apportioned among the Illinois properties only.

Affirmed in part; reversed in part and remanded for further proceedings not inconsistent with this opinion.

SPITZ and GREEN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE STEIGMANN JUSTICE GREEN,

license: Public Domain

text:
    THOMAS L. REYNOLDS, Plaintiff-Appellee, v. JIM EDGAR, Secretary of State, Defendant-Appellant.
    Fourth District
    No. 4 — 89—0299
    Opinion filed August 31, 1989.

      GREEN, J., specially concurring.
    Neil E Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Ann Plunkett-Sheldon, Assistant Attorney General, of Chicago, of counsel), for appellant.
    Jeffrey S. Geisler, of Geisler Law Offices, of Decatur, for appellee.
   JUSTICE STEIGMANN

delivered the opinion of the court:

The defendant Secretary of State (Secretary) appeals from an order of the circuit court of Sangamon County which, upon administrative review, reversed an order of the Secretary denying plaintiff reinstatement of his driver’s license or, in the alternative, a restricted driving permit.

We reverse.

Plaintiff was convicted of 10 traffic offenses from July of 1977 to April of 1981. His driver’s license was twice suspended, the first time for two months and the second time for one year. Both suspensions were as a result of his multiple speeding convictions. In April of 1981, plaintiff was convicted of driving a motor vehicle while under the influence of intoxicating liquor or a narcotic drug (DUI). Plaintiff was also convicted that same month of illegal transportation of alcohol. As a result of the DUI conviction, his license was revoked in May of 1981. (Ill. Rev. Stat. 1981, ch. 95½, pars. 6 — 206(a), 11 — 501.) In April of 1987, plaintiff was convicted of driving while his license was revoked (DWR).

In July of 1988, plaintiff petitioned the Secretary for reinstatement of his driver’s license or, in the alternative, a restricted driving permit to commute to work. After a hearing in August of 1988, the Secretary adopted the findings, conclusions, and recommendations of the hearing officer and denied all relief requested by the plaintiff.

Plaintiff sought administrative review before the circuit court, arguing that the Secretary’s denial was arbitrary and capricious, contrary to the manifest weight of the evidence, and constituted an abuse of discretion. The circuit court agreed and directed the Secretary to take all necessary steps to enable plaintiff to have his driving privileges restored.

Recently, this court dealt with a similar case that also involved the Secretary. In Craig v. Edgar (1988), 165 Ill. App. 3d 270, 272, 519 N.E.2d 112, 114, we stated the following:

“The findings and conclusions of an administrative agency on questions of fact are considered prima facie true and correct. (Ill. Rev. Stat. 1985, ch. 110, par. 3 — 110.) A court may not interfere with the discretionary authority vested in an administrative body unless that authority is exercised in an arbitrary manner or the decision is against the manifest weight of the evidence. A reviewing court may not reweigh the evidence. (Murdy v. Edgar (1984), 103 Ill. 2d 384, 469 N.E.2d 1085.) The Secretary’s decision is contrary to the manifest weight of the evidence when no rational trier of fact, viewing the evidence in a light most favorable to the Secretary, could agree with the Secretary’s decision. (Agans v. Edgar (1986), 142 Ill. App. 3d 1087, 1094, 492 N.E.2d 929, 933-34.)”

In his written findings and recommendations, the hearing officer set forth three separate “conclusions of law” which served as the bases for denying plaintiff’s petition for reinstatement of his driving privileges. In his first two “conclusions of law,” the hearing officer essentially found that the evidence presented at the hearing established that the plaintiff was an “alcoholic/chemically dependent person” who had failed to show that he had established an adequate support system in order to ensure continuous recovery from his “alcoholism/chemical dependency.” Almost all of the evidence produced at the hearing dealt with the plaintiff’s previous status as a drug and alcohol abuser who had successfully overcome his problem of abuse.

At the hearing, plaintiff testified that he had not had a drink since 1984, that he was regularly employed, and that he had ongoing support for his continued abstinence through involvement with his work, family, and hobbies. The hearing officer found the plaintiff to be sincere and credible and observed that his support system appeared to be working.

Understandably, plaintiff attacks these findings on administrative review. Plaintiff argues that the first two “conclusions of law” are in conflict with the hearing officer’s findings of fact and therefore contrary to the manifest weight of the evidence. However, we need not resolve this issue because the third “conclusion of law” upon which the hearing officer’s recommendation was based is clearly not against the manifest weight of the evidence. The third “conclusion of law” held that the plaintiff “failed to carry his burden of proving that he would be a safe and responsible driver and that he would not endanger the public safety and welfare.”

The Illinois Supreme Court in Murdy v. Edgar (1984), 103 Ill. 2d 384, 391-92, 469 N.E.2d 1085, 1088-89, reviewed the law applicable to the question of whether a petitioner seeking reinstatement of his driving privileges “would not endanger the public safety and welfare,” and stated the following:

“The Illinois Vehicle Code (Code) grants the authority to the Secretary to reinstate driving privileges or to issue restricted driving permits. (See Ill. Rev. Stat. 1981, ch. 95½, pars. 6— 206, 6 — 208.) A review of the Code makes it clear that, once driving privileges are revoked, the restoration of such privileges is not automatic. (People v. Turner (1976), 64 Ill. 2d 183, 186.) For example, before driving privileges are restored under section 6 — 208, the Secretary must determine that ‘to grant the privilege of driving a motor vehicle on the highways will not endanger the public safety or welfare.’ (Ill. Rev. Stat. 1981, ch. 95½, par. 6 — 208(b)(2).) Similarly, the relevant inquiry before issuing a restricted driving permit is the danger to the public safety and welfare. (Ill. Rev. Stat. 1981, par. 6 — 206(c)(3).) (See also Foege v. Edgar (1982), 110 Ill. App. 3d 190, 193.)”

In addition to the statutes cited by the supreme court, the Secretary has set forth administrative regulations which address the same question. Section 1001.420(d) of the Secretary’s rules (92 Ill. Adm. Code §1001.420(d) (Supp. Jan. 1, 1988)) provides that the Secretary, when deciding whether to issue restricted driving permits, shall consider (among other factors) the frequency, type, and severity of traffic violations, as well as efforts at rehabilitation or reform of past driving practices. Section 1001.420(e) (92 Ill. Adm. Code §1001.420(e) (Supp. Jan. 1, 1988)) provides that the effect of the issuance of a restricted driving permit (RDP) upon public safety will be carefully considered before any RDP is granted. Section 1001.430 (92 Ill. Adm. Code §1001.430 (Supp. Jan. 1, 1988)) directs that when the Secretary is considering the reinstatement of driving privileges after revocation, he shall consider (among other factors) whether the applicant has driven while his license was suspended or revoked, the applicant’s total driving record (including, but not limited to, any reasons for driving violations), and whether the evidence shows that public welfare and safety will not be endangered by reinstatement of the applicant’s driving privileges. Evidence before the Secretary in this case established that almost six years after plaintiff’s license was revoked due to his DUI conviction and three years after he claims to have put into place a support system to help him avoid the misconduct of his youth, plaintiff was convicted of DWR (Ill. Rev. Stat. 1987, ch. 95½, par. 6— 303), a Class A misdemeanor.

When the underlying revocation stems from a DUI conviction, DWR is treated by the legislature as one of the most serious driving offenses one can commit in the absence of bodily injury. A comparison of the sentencing provisions for DWR stemming from a DUI with those of DUI itself is illustrative of this point. A person convicted of DUI commits a Class A misdemeanor. A DUI conviction is elevated to a Class 4 felony if the driver is convicted a third or subsequent time. (See Ill. Rev. Stat. 1987, ch. 95½, par. 11 — 502(d).) A person convicted of DUI a second time within five years of a previous conviction must be sentenced to a minimum of 48 consecutive hours of imprisonment or assigned to a minimum of 10 days of community service as may be determined by the court. See Ill. Rev. Stat. 1987, ch. 95½, par. 11 — 501(c).

The penalties for DWR are more severe. DWR, which is normally a Class A misdemeanor, is elevated to a Class 4 felony upon a second or subsequent violation when, as here, the underlying revocation stems from a conviction for DUI, reckless homicide, or leaving the scene of a motor vehicle accident involving personal injuries or death. (See Ill. Rev. Stat. 1987, ch. 95½, par. 6 — 303(d).) Furthermore, a person convicted of DWR stemming from these same underlying bases must serve upon the first conviction a minimum term of imprisonment of 7 consecutive days or 30 days of community service work. See Ill. Rev. Stat. 1987, ch. 95½, par. 6 — 303(c).

At the hearing, the sole explanation offered by the plaintiff with regard to his DWR conviction was the following: “Well uh, when I got, I got arrested it was in December of 86 and I was driving a, driving to the store to get some groceries because I couldn’t get a hold of anybody to come and give me a ride and ***.”

Based upon this record, the hearing officer’s third “conclusion of law” was that plaintiff had failed to carry his burden of proving that he would be a safe and responsible driver and that he would not endanger the public safety and welfare. In the plaintiff’s complaint for administrative review, the only reference he makes to the third “conclusion of law” is the following: “This conclusion is clearly contrary to the plaintiff’s testimony, as well as his witness, and the letters submitted and received into evidence.” However, other than the statements of the plaintiff quoted above, neither plaintiff’s testimony, the testimony of his witness, nor any of the letters submitted into evidence make any reference to or explanation of the 1987 DWR conviction.

In the circuit court’s order on appeal before us, the court’s only statement with regard to the third “conclusion of law” is that it “is contrary to the manifest weight of the evidence.” No explanation is given as to why this is so.

Despite the seriousness of the plaintiff’s DWR conviction in 1987, plaintiff’s brief makes no mention whatsoever of the DWR conviction in its attack on the Secretary’s findings. Simply stated, the question before this court is whether any rational trier of fact, viewing the evidence in a light most favorable to the Secretary, could agree with the Secretary’s decision that the plaintiff failed to carry his burden of proving that he would be a safe and responsible driver and that he would not endanger the public safety and welfare. On these facts, the answer is clearly in the affirmative, and the circuit court erred in holding otherwise.

As a last matter, this court needs to resolve whether we should reverse the circuit court’s order outright or reverse and remand for further administrative hearings. Those hearings would provide the Secretary with the opportunity to determine whether the third “conclusion of law” is sufficient standing alone to warrant the denial of plaintiff’s driving privileges. This issue arises because of plaintiff’s argument that the Secretary’s first and second “conclusions of law” were inconsistent with the Secretary’s findings of fact. On this record, however, we do not believe remand is necessary. The third “conclusion of law” is entirely separate and severable from the first and second “conclusions of law.” Furthermore, although the Secretary found that plaintiff had failed to carry his burden of proving that he would be a safe and responsible driver and that he would not endanger the public safety and welfare, the Secretary already accepted the plaintiff’s claims that he had overcome his alcohol and chemical dependency. In light of plaintiff’s DWR conviction in 1987, we find no inconsistency in the Secretary’s conclusions that plaintiff had overcome his drug and alcohol abuse and yet remained a potential danger to public safety and welfare if he were to have any of his driving privileges restored. Accordingly, there is no reason to believe that even if the first and second “conclusions of law” were stricken, the Secretary’s third “conclusion of law” and his ultimate action of denial would be any different if further proceedings occurred upon remand.

For the reasons stated, the judgment of the circuit court is reversed; and the decision of the Secretary is affirmed and reinstated.

Reversed; and the Secretary of State’s order affirmed and reinstated.

LUND, J., concurs.

JUSTICE GREEN,

specially concurring:

The majority places too much emphasis upon plaintiff’s recent conviction of driving while his license was revoked (DWR). The purpose of the legislation under which plaintiff’s driving privileges were revoked is not to punish persons who have been convicted of driving under the influence of intoxicants or drugs (DUI). Nor is the purpose of the legislation to punish those guilty of DWR. Rather the purpose of the legislation is to protect the public from persons whose ability to drive is likely to be impaired. Punishment is the function of the sentences which the court has the responsibility to impose upon the conviction of the two offenses. I agree that the plaintiff’s conduct in driving while his license was revoked is an indication of continued irresponsibility but I do not deem it sufficient, of itself, to justify continued denial of driving privileges eight years after plaintiff’s DUI conviction. The conduct giving rise to the DWR conviction focuses only indirectly upon plaintiff’s ability to drive safely.

Accordingly, we must confront the other criterion applied by the hearing officer. The hearing officer found plaintiff “is a chemically dependent person.” That was established by (1) the evidence submitted by plaintiff of an updated alcohol drug assessment which described plaintiff as a person whose use was problematic with his dependency in remission; and (2) the evidence of plaintiffs record prior to his 1981 conviction. This determination was not contrary to the manifest weight of the evidence. However, in view of the fact that the evidence conclusively showed that this dependency had been in remission since plaintiffs discharge from a treatment center in 1982, I do not deem this evidence sufficient, of itself, to justify denial of driving privileges.

No doubt our streets would be safer if no one convicted of DUI was ever permitted to drive again but, clearly, the General Assembly did not have that in mind when the legislation involved here was enacted. However, where, as here, such an offender is shown to have a latent substance dependency in remission, the danger from subsequent driving is substantial even when the remission has existed for a substantial time. Nevertheless, no case has been called to our attention where such a latent dependency in remission has, of itself, been held to be sufficient to justify indefinitely a return of a revoked driving privilege. Thus, considering the length of the time plaintiff has been able to refrain from ingestion of abusive substances, I do not deem his latent dependency to be a sufficient basis alone to justify denial of driving privileges. Even when this latent dependency is coupled with evidence of plaintiffs recent irresponsible driving while his license was revoked, I do not consider the evidence to support refusal to restore driving privileges.

The hearing officer also found plaintiff’s support systems to be working but he had “failed to carry his burden of proving he had established an adequate support system in order to ensure continuous recovery from his *** dependency.” This finding arose largely from testimony plaintiff had attended meetings of Alcoholics Anonymous for a while but had dropped out, stating he did not feel the need for help from such a group. He had not sought help from any other such group. The Secretary’s regulations indicate a requirement that a person with continuing latent dependency attach himself or herself to some type of “ongoing support/recovery program.” (92 Ill. Adm. Code §1001.440(b)(3) (Supp. Jan. 1, 1987).) The hearing officer also noted that plaintiff had supported his request for restoration of driving privileges with letters of persons attesting his abstinence but was critical of the fact that none of the letters spoke to the question of whether plaintiff would be able to abstain in the future.

In Lamborn v. Edgar (1989), 178 Ill. App. 3d 814, 533 N.E.2d 1008, a motorist whose driving privileges had been revoked because of a DUI conviction was also found to have a latent dependency which had been held in check for three years at the time he sought restoration of driving privileges. As has plaintiff here, that motorist had refused to continue in any organized program for support. The appellate court upheld the Secretary’s refusal to reinstate the motorist’s license. Here the period of plaintiff’s successful battle against his dependency is approximately twice as long as that in Lamborn. I deem the time span of remission here to approach that in which denial of restoration of driving privileges is an abuse of discretion and more than a rational person could deem appropriate even when the person seeking restoration does not take part in a formal program of support. However, considering the fact plaintiff has recently committed the irresponsible act of driving while his license was revoked, I deem the evidence barely sufficient to support the denial of restoration of the license.

Accordingly, I concur in the decision to reverse the judgment of the circuit court to affirm the Secretary.


author: JUSTICE GREEN PRESIDING JUSTICE McCULLOUGH,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GARY CLARK, Defendant-Appellant.
    Fourth District
    No. 4 — 88—0610
    Opinion filed September 7, 1989.

      McCULLOUGH, P.J., specially concurring.
    Daniel D. Yuhas and Arden J. Lang, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Lawrence R. Fichter, State’s Attorney, of Decatur (Kenneth R. Boyle, Robert J. Biderman, and David E. Mannchen, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GREEN

delivered the opinion of the court:

Defendant Gary Clark has appealed judgments of the circuit court of Macon County entered on jury verdicts finding him guilty of two murders, two robberies, home invasion, and aggravated criminal sexual assault and sentencing him on July 21, 1988, to terms of imprisonment for natural life, 4 years, 4 years, 15 years, and 7 years, respectively. The sentences for a definite term of years were ordered to run concurrently with the sentence for natural life and with each other. This appeal comes after the third trial of the case, and after it has been before this court and the supreme court on a prior occasion. For details beyond the summary we present here, we refer readers to People v. Clark (1987), 119 Ill. 2d 1, 518 N.E.2d 138, and People v. Clark (1986), 144 Ill. App. 3d 420, 494 N.E.2d 551.

This litigation began in July 1984, when a petition was filed in the circuit court of Macon County alleging defendant, then 14 years old, was a delinquent minor because of the commission of felony murders of E.C. and RC. on July 14, 1984. Upon motion of the State, pursuant to section 2 — 7(3) of the Juvenile Court Act (Ill. Rev. Stat. 1983, ch. 37, par. 702 — 7(3)), and after a hearing, the circuit court permitted the State to proceed against defendant under the provisions of the Criminal Code of 1961 (Ill. Rev. Stat. 1983, ch. 38, par. 1 — 1 et seq.). The State then charged defendant with the offenses with which he now stands convicted. At a first trial, the defendant was convicted of robbery and residential burglary but the jury was unable to agree on other charges and was dismissed. A second trial was held in Tazewell County, where the defendant was convicted and given the same sentences as here.

The first appeal was from the convictions imposed after the trial in Tazewell County and the sentences then imposed. The issues on that appeal centered upon the propriety of permitting the minor to be tried under the Criminal Code of 1961. However, the defendant also contended (1) the imposition of a natural life sentence on him for offenses committed when he was only 14 violated the due process provisions of the Illinois and Federal Constitutions and the eighth amendment; and (2) his confrontation rights were violated by the introduction of certain evidence. In a split decision, this court affirmed. The dissent focused on the severity of section 5 — 8—1(a)(1)(c) of the Unified Code of Corrections (Ill. Rev. Stat. 1983, ch. 38, par. 1005 — 8—1(a)(1)(c)) as applied to the case of a 14-year-old against whom criminal prosecution was sought. That legislation mandates the imposition of a sentence for natural life upon the conviction of an accused of two murders. The dissent concluded the record conclusively showed that the circuit court, when permitting the criminal prosecution, was unaware of that mandatory requirement.

After granting leave to appeal, the supreme court reversed and remanded, directing the procedure begin with a new hearing in the juvenile proceeding, to determine whether criminal prosecution was proper. That court unanimously agreed that the prior juvenile proceeding was flawed, because neither court nor counsel had been aware of the mandatory requirement of section 5 — 8—1(a)(1)(c) of the Unified Code of Corrections. The majority of that court also held the hearing to determine whether criminal prosecution should be permitted was flawed because insufficient evidence was presented as to the personal and social history of the defendant and as to whether facilities were available to treat him if he remained subject to the Juvenile Court Act. See Ill. Rev. Stat. 1983, ch. 37, par. 702 — 7(3).

On remand, the circuit court, after holding a hearing, again authorized the criminal prosecution of defendant. New informations were filed. A jury trial was again held, this time in McLean County. Defendant was convicted and sentenced, as previously described, and the instant appeal was taken. Defendant again maintains the circuit court abused its discretion in allowing criminal prosecution and asserts his constitutional rights were violated by imposition of the natural life sentence. He also asserts the circuit court erred (1) in denying his motion to suppress statements he gave to police; and (2) in allowing two witnesses to testify to statements he made while in juvenile detention. We hold that no error occurred and affirm.

On remand, both at the hearing to determine whether criminal prosecution should be allowed and at trial, evidence was presented indicating (1) in the early morning hours of July 14, 1984, a Decatur police officer noted a possible break-in at the home of P.C. and E.C., both octogenerians, in Decatur; (2) upon entering that house, that officer found the brutally beaten corpse of E.C. and an equally brutally beaten and nearly dead P.C. on the floor in separate rooms; (3) P.C. died soon thereafter; (4) an ear of sweet corn had been forced into E.C.’s vagina; (5) defendant had admitted to several people that he and Rodney Baltimore had entered the victims’ home to burglarize it and when defendant came upon E.C., he beat her, jumping on her chest and breaking her sternum; and (6) Baltimore then beat P.C.

At the latest hearing concerning whether criminal prosecution should be permitted, the evidence concerning the defendant’s personal and social history was extensive and thorough. Testimony was presented that police had five contacts with defendant prior to present charges and three of those had resulted merely in station adjustments. Dale Sunderland, a psychiatrist, testified he had interviewed defendant and diagnosed defendant as having an antisocial personality with some paranoia. He described such a person as one unlikely to learn from experience to such an extent it would change his behavior. Dr. Sunderland stated an opinion that no local facilities were available that could rehabilitate defendant but that if defendant could stay two or three years in a secure structured institution adequately staffed, defendant might be rehabilitated. Stephen Courtois, a psychologist, testified he had examined and tested defendant and found him (1) “very intelligent”; but (2) “very explosive” at times and “quite angry and violent”; and (3) unlikely to be rehabilitated except that after age 40, he might lose his aggressiveness and become rehabilitated.

Defendant places his greatest emphasis upon his contention that the circuit court abused its discretion in ruling on the State’s request for leave to prosecute him under the Criminal Code of 1961. In the face of the stronger evidence on remand, defendant does not contend that permitting the criminal prosecution was error. Rather, he asserts the court should not have permitted the State to prosecute him for both murders but only for the murder of E.C., in regard to which the evidence indicated he performed the acts which brought about the death. Had this ruling been made, he would not have been subject to a mandatory natural life sentence and, in sentencing, the court would have had discretion in imposing sentence to consider whatever mitigating evidence he could produce including that which showed he was only 14 years old at the time of the offenses.

Section 5 — 4(3)(a) of the Juvenile Court Act of 1987, which was in force at the time of the latest hearing concerning whether criminal prosecution was authorized, requires the court, in rendering its decision, to consider, among other matters, the following factors:

“(1) whether there is sufficient evidence upon which a grand jury may be expected to return an indictment; (2) whether there is evidence that the alleged offense was committed in an aggressive and premeditated manner; (3) the age of the minor; (4) the previous history of the minor; (5) whether there are facilities particularly available to the Juvenile Court for the treatment and rehabilitation of the minor; and (6) whether the best interest of the minor and the security of the public may require that the minor continue in custody or under supervision for a period extending beyond his minority.” Ill. Rev. Stat. 1987, ch. 37, par. 805-4(3)(a).

In its opinion in Clark, the supreme court described the decision of whether to allow criminal prosecution as one where the circuit court “must weigh relevant statutory and nonstatutory factors in striking the balance for society by [permitting criminal prosecution of] the alleged juvenile offender or in striking the balance for the juvenile by [continuing to proceed under the Juvenile Court Act].” (Clark, 119 Ill. 2d at 14, 518 N.E.2d at 144.) Citation was made to People v. M.D. (1984), 101 Ill. 2d 73, 461 N.E.2d 367, and People v. Taylor (1979), 76 Ill. 2d 289, 391 N.E.2d 366. Defendant maintains the only way the circuit court could have properly balanced the need to impose substantial incarceration upon defendant against his young age and the fact that his accountability for the murder of P.C. was only vicarious was to allow only the limited prosecution he suggests. He points out that the judge presiding at the proceedings where prosecution was authorized stated he “might” consider only partial prosecution but concluded he had no authority to do so. Thus, defendant asserts, the court proceeded under a misunderstanding of the law.

The theory of allowing only partial prosecution of the alleged offenses occurring in the single transaction stemming from the burglary of the victims’ residence was set forth in the dissent when this case was previously before this court. (Clark, 144 Ill. App. 3d at 435-36, 494 N.E.2d at 561-62.) The supreme court made no direct reference to this theory in its opinion but did speak in some detail of the matters which should be considered on remand. Moreover, in describing the seriousness of the decision as to whether to permit prosecution which could result in the “harsh” penalty of a mandatory natural life sentence, that court stated:

“Nonetheless, where, as here, the choice is between two extremes, incarceration to age 21 under the [Juvenile Court] Act or incarceration for life without possibility of parole under the Criminal Code, adequate balancing calls for consideration of which penalty would best serve both of the interests at stake.” (Emphasis added.) (Clark, 119 Ill. 2d at 15, 518 N.E.2d at 144.)

Thus, the supreme court indicated the circuit court could only allow criminal prosecution for both murders or limit the procedure against the defendant to those under the Juvenile Court Act.

In Clark, the supreme court rejected the theory of this court’s dissent that the circuit court had power to order only partial prosecution of crimes arising from the same transaction. Were it not for the precedential effect of that decision, this panel would not be in agreement on that issue. However, under the prevailing circumstances, no useful purpose would be served by encumbering our decision here with the detailed reasoning of the various panel members. We hold that no error occurred in the decision to allow full prosecution.

We need not discuss at length defendant’s contention that imposition of a mandatory natural life sentence violated his Federal and State constitutional rights. Defendant raised this issue before this court in his prior appeal. This court rejected that argument in defendant’s prior appeal. We relied principally upon People v. Steppan (1985), 105 Ill. 2d 310, 473 N.E.2d 1300, People v. Taylor (1984), 102 Ill. 2d 201, 464 N.E.2d 1059, and People v. Rodriguez (1985), 134 Ill. App. 3d 582, 480 N.E.2d 1147.

In Steppan, the supreme court stated that in regard to penalties, due process requires only that the penalties be designed to remedy the evils which the legislature deemed to threaten the public. In Taylor, the court held that imposition of a mandatory natural life sentence upon a 16-year-old was consistent with constitutional provisions of this State. In Rodriguez, the court held that imposition of such a sentence on a 16-year-old violated neither the due process clause of the Illinois Constitution (Ill. Const. 1970, art. I, §2), the separation of powers provision of that constitution (Ill. Const. 1970, art. II, §1), the objective of restoring the offender to useful citizenship (Ill. Const. 1970, art. I, §11), nor the cruel and unusual punishment provision of the eighth amendment to the Federal Constitution (U.S. Const., amend. VIII).

When the supreme court granted leave to appeal from our prior decision, that court refused to consider the defendant’s argument in regard to the foregoing constitutional issues. The supreme court held the defendant had waived those issues by failing to raise them in his petition for leave to appeal. (107 Ill. 2d R. 315(b)(3).) Defendant requests that this court now give reconsideration to our previous holding. We find nothing that has happened in the interim to convince us to do so. We are aware of the recent holding of the United States Supreme Court in Thompson v. Oklahoma (1988), 487 U.S. 815, 101 L. Ed. 2d 702, 108 S. Ct. 2687, holding that subjecting a 15-year-old accused to the Oklahoma death penalty constituted cruel and unusual punishment. However, as this court pointed out when this case was previously before us, the cases of Rummel v. Estelle (1980), 445 U.S. 263, 63 L. Ed. 2d 382, 100 S. Ct. 1133, and Woodson v. North Carolina (1976), 428 U.S. 280, 49 L. Ed. 2d 944, 96 S. Ct. 2978, taken together indicate the significant differences between the death penalty and a sentence of natural life imprisonment are such that the constitutional propriety of natural life sentences cannot be measured by the constitutional requirements for the death penalty. Moreover, as the State points out here, the Thompson Court relied upon history and statistical data concerning the impact of the death penalty on minors. Here, no such information is available in regard to natural life sentences imposed upon minors.

As a further issue related to the constitutionality of legislative provisions for mandatory natural life sentences, defendant contends the trial court misconstrued the position of the supreme court in its decision in Clark. Defendant maintains this occurred when the trial court was ruling on defendant’s pretrial motion to declare the legislation concerning mandatory natural life sentences unconstitutional. The question before the trial court at that time was one of law, and the propriety of any ruling made by the trial court in that respect was not prejudicial to defendant in view of our determination upholding the constitutionality of that legislation.

Defendant’s contention that the court erred in denying his motion to suppress statements he gave to police concerns statements defendant made on the date of his arrest and while in custody to Decatur police detective Dennis Harris and Decatur police officer Mark Barthelemy. He maintains the statements were involuntary. The testimony at the hearing on that motion to suppress was somewhat disputed. Nevertheless, evidence was presented that (1) while defendant was only 14 years old at the time, he had previous contact with police and was of average intelligence; (2) defendant was advised he could be tried as an adult; (3) defendant was not questioned continuously; and (4) defendant never asked for an attorney or that the conversation be terminated. No evidence was presented that defendant was threatened by the police or that he complained about the treatment he was receiving.

The evidence is undisputed that defendant’s mother was allowed to be present during the first interview until she left at her own request.

Contention is made that at a prior meeting between defendant and his codefendant, Rodney Baltimore, the latter had coerced defendant to make statements to the police which were not voluntary. Baltimore was a tough, convicted felon, who was five years older than defendant but no direct evidence was presented that he intimidated defendant into making the foregoing statements to the police.

While the State had the burden of proving by a preponderance of the evidence that any confessions or admissions of guilt by defendant were voluntary, this court may not overturn the trial court’s ruling on the suppression issue unless it is contrary to the manifest weight of the evidence. (People v. Kincaid (1981), 87 Ill. 2d 107, 429 N.E.2d 508.) The police were not obligated to advise defendant of the nature of the charges to be brought against him, the possible punishment for those charges, or all of the material facts known to them before interrogating defendant. (People v. Prude (1977), 66 Ill. 2d 470, 475-76, 363 N.E.2d 371, 373.) We hold that the circuit court did not err in denying defendant’s motion to suppress the statements given to the police officers.

Defendant’s final contention, that the trial court erred in admitting testimony of two witnesses as to statements defendant made while in juvenile custody, arose from the testimony at trial of Teresa Macklin and Janet Myers. Neither had testified at any of the previous trials. Both were matrons at the Macon County Juvenile Detention Center shortly after the offenses involved here and while defendant was detained there. Defendant contends these alleged statements did not connect him to the transaction of the burglary and murder and that the testimony of these witnesses was incredible.

Macklin testified, over objection, she was employed on the third shift at the center in the summer of 1984. She stated that at a time when defendant was in a single person cell, she heard him talking to boys in another cell. According to Macklin defendant said “we or he f-— her.” Macklin stated she could not remember whether defendant stated that “we” or “he” were the person or persons who did that. Macklin also stated she could not remember who the “her” was. Macklin further testified she heard defendant say that he had “stuck a corncob up her vagina” and that this episode was “the best sex he had ever had.” However, a correction center log which Macklin identified as having been prepared by herself and other matrons was also introduced into evidence. This document indicated defendant had never been in a cell by himself during the time he was held at the detention center.

Janet Myers testified that one Saturday in the summer of 1984 while she was working at the detention center, she overheard a conversation between defendant and two others who were in the same cell. She said they were discussing their previous sexual experiences and that defendant stated “the best sex he ever had was with a dead woman.” Myers stated she could not remember having told Officer Richard Hazen that defendant had spoken of having sex with an “older” woman rather than a “dead” woman. Myers was impeached by (1) detention center logs which indicated that defendant and the other persons allegedly present in a cell had not shared a cell on a Saturday during that period of time; and (2) by the testimony of Ha-zen that a report he wrote indicated Myers had used the adjective “older” rather than “dead” in describing the woman about whom the defendant was speaking.

No error occurred in the admission of this evidence. The admissions were connected to the murder because E.C. was shown to be an 86-year-old woman at the time of the offenses and evidence was presented that her body was found with a corncob inserted in her vagina. Strong evidence indicated defendant had jumped on her chest and killed her. Because of this connection, any vagueness in this testimony went to the weight to be given to the evidence rather than to its admissibility. (People v. Houseton (1986), 141 Ill. App. 3d 987, 490 N.E.2d 1354; People v. Olbrot (1982), 106 Ill. App. 3d 367, 435 N.E.2d 1242.) Similarly, the fact these witnesses were impeached also went to the weight to be given to their testimony and not to its admissibility. See M. Graham, Cleary & Graham's Handbook of Illinois Evidence §607.1, at 317 (4th ed. 1984); Brown v. Luehrs (1877), 1 Ill. App. 74, aff'd (1880), 95 Ill. 195.

As we have indicated, we affirm all judgments from which appeal is taken.

Affirmed.

LUND, J., concurs.

PRESIDING JUSTICE McCULLOUGH,

specially concurring:

The trial court did not err in transferring all of the charges from the juvenile court with respect to the defendant. Section 5 — 4(6)(b) of the Juvenile Court Act of 1987 (Ill. Rev. Stat. 1987, ch. 37, par. 805— 4(6)(b)) states that all charges “arising out of the same incident” should be kept together and tried at the same time. Subsection (b) refers to subparagraph (a) dealing with minors of the age 15 years or older but refers only to the “charges” mentioned in subparagraph (a). Similar language is found in sections 5 — 4(7)(a) and (b) (Ill. Rev. Stat. 1987, ch. 37, pars. 805-4(7)(a), (7)(b)).

Even if it is argued that section 5 — 4(6)(b) does not apply, it does provide guidance as to how these matters concerning multiple charges should be handled in the trial court. As stated above, section 5— 4(6)(b) talks about “charges” specified in paragraph (a) and not “age of child.”


author: JUSTICE GREEN

text:
    PHILLIP SCOBY, Plaintiff-Appellant, v. VULCAN-HART CORPORATION, Defendant-Appellee.
    Fourth District
    No. 4 — 89—0130
    Opinion filed September 7, 1989.

      Jeffrey W. Tock, of Phebus, Tummelson, Bryan & Knox, of Urbana, and Michael J. Tague, of Franklin, Flynn & Palmer, of Champaign, for appellant.
    D. Cameron Dobbins, of Dobbins, Fraker, Tennant, Joy & Perlstein, of Champaign, for appellee.
   JUSTICE GREEN

delivered the opinion of the court:

In this case we are concerned first with the effect of a circuit court’s refusal, after request, to follow one of its own rules. At times pertinent, a rule of the Sixth Judicial Circuit stated:

“Summary Judgment. A motion for summary judgment shall not be heard until ten (10) days after service of the notice of motion under Supreme Court Rule 11.” (Emphasis added.) (Rules of Practice of the Circuit Court, Sixth Judicial Circuit, Rule 2.1(f), eff. June 1, 1983.)

Over the objection of plaintiff Phillip Scoby, the circuit court of Champaign County heard and allowed a motion for summary judgment filed by defendant Vulcan-Hart Corporation one day after the motion was filed and without any prefiling notice having been given to plaintiff. We recognize the ability of a court to refuse, over request, to follow its own rules is a matter of some uncertainty. However, we hold that reversible error resulted from the failure of the court to do so here.

On October 14, 1986, plaintiff filed a three-count complaint in the circuit court of Champaign County against defendant seeking damages for personal injuries. He alleged that while he was employed in a Champaign restaurant he was injured when his arm became submerged in hot oil contained in a deep fat fryer manufactured by defendant. Count I sounded in the tort of strict liability for a defective product, and count II, subsequently dismissed by plaintiff, was based upon negligence. Plaintiff contended in count I the equipment was unreasonably dangerous because the fryer was not equipped with a restricting guard which would prevent a person’s arm from becoming submerged in the fryer and prevent oil from the fryer splattering on the floor.

After issue was drawn, the case was set for trial on January 9, 1989. On the morning of the trial date, defendant filed a motion for summary judgment. Plaintiff objected to proceeding on that motion at that time because of the circuit court rule requiring 10 days’ notice. The court gave the plaintiff until the next morning to prepare for hearing on the motion but refused further time. The next day, the plaintiff again objected to the lack of sufficient notice of the motion for summary judgment, but the court proceeded to hear the motion. The court then granted the motion and entered summary judgment for the defendant. Plaintiff subsequently filed a post-hearing motion which was denied. Plaintiff has appealed.

The undisputed evidence before the court at the time it ruled upon the motion for summary judgment generally supported the allegations of the plaintiff as to the occurrence in which plaintiff was injured. His deposition indicated that, when he was near the fryer, he slipped and fell, immersing his arm in the fryer. The theory of the circuit court’s grant of summary judgment was that the likelihood of plaintiff being injured if any portion of his body fell into the fryer while it contained hot oil was obvious to all. The circuit court concluded that, under the precedent of Hunt v. Blasius (1978), 74 Ill. 2d 203, 384 N.E.2d 368, the obvious nature of the danger presented by the fryer prevented it, as a matter of law, from being unreasonably dangerous. Plaintiff contended in his request for a rehearing that decisions of the supreme court cited in Lease v. International Harvester Co. (1988), 174 Ill. App. 3d 897, 529 N.E.2d 57, changed the law in regard to whether the obvious nature of a defect in a product prevents the product from being unreasonably dangerous.

Although we do not decide here the complicated substantive questions of tort law involved in the merits of this case, we deem it desirable for us to discuss those substantive matters further because they bear upon the need for plaintiff to have had more time to prepare for the hearing on the motion.

In Hunt, relied upon by the circuit court, the supreme court had stated the criterion for determining whether a product was unreasonably dangerous because of a defect was the consumer-user contemplation test set forth in section 402A of the Restatement (Second) of Torts (Restatement (Second) of Torts §402A (1965)). (Hunt, 74 Ill. 2d at 211-12, 384 N.E.2d at 372.) As its name implies, the question under this test is whether the danger presented by a product is greater than would be expected by the ordinary consumer or user. Under this test, a danger which is obvious would be contemplated by a consumer or user, and the product would not be unreasonably dangerous. Thus, the circuit court reasoned here, the danger from an open fryer would be contemplated by an ordinary person, and, accordingly, the fryer was not unreasonably dangerous.

Our decision in Lease was rendered shortly before the hearing on the post-hearing motion. There, we pointed out the supreme court had held in several cases that, in determining whether a product is defective, the trier of fact should examine whether a safer alternative would be “ ‘economical, practical and effective.’ ” (Lease, 174 Ill. App. 3d at 904, 529 N.E.2d at 62.) The supreme court cases cited were Kerns v. Engelke (1979), 76 Ill. 2d 154, 390 N.E.2d 859, and Anderson v. Hyster Co. (1979), 74 Ill. 2d 364, 385 N.E.2d 690. Under an alternate test to the “consumer-user contemplation” test, a test described as the “danger-utility” test has been suggested by an authoritative text on torts. (W. Keeton, Prosser & Keeton on Torts §99(3), at 699-70 (5th ed. 1984).) Under that test the question of whether a product is unreasonably dangerous is determined on the basis of whether (1) the harm from reasonably foreseeable use outweighs the benefits of the product; (2) alternate products are available to give the same benefits without as much risk; or (3) a feasible way exists to design the product with fewer risks. Because of the similarity between the “danger-utility” test and the language in Kerns and Anderson, we stated at least some of the features of that test “are in operation in Illinois law.” Lease, 174 Ill. App. 3d at 904, 529 N.E.2d at 62.

At the hearing on the post-hearing motion, plaintiff pointed out the language in Lease which indicates some features of the “danger-utility” test have some application. Plaintiff had previously cited Kern and Anderson as well as Palmer v. Avco Distributing Corp. (1980), 82 Ill. 2d 211, 412 N.E.2d 959. Plaintiff then argued, and now contends, the foregoing cases overruled Hunt at least to the extent a product can be proved to be unreasonably dangerous if a better design was reasonably feasible. Without conceding this to be so, defendant maintains that, in any event, plaintiff has failed to come forward, in response to the motion for summary judgment, to show the existence of any more feasible, practical, and economical design. Plaintiff responds it was not required to do so when the motion for summary judgment relied merely upon the obvious nature of the allegedly dangerous condition of the fryer.

As we have previously indicated, we do not pass upon any of the points raised by the parties other than the contention that plaintiff was entitled to the benefit of the local rule requiring 10 days’ notice of a motion for summary judgment before being required to go to hearing on it. We discuss the other matters to illustrate the confusion which can arise when motions for summary judgment are heard shortly before trial with too short of notice being given.

In support of the circuit court’s action in overruling plaintiff’s objection to proceeding to hear the summary judgment motion before the expiration of the 10-day period of the circuit court rule, defendant relies on Herman v. Swisher (1983), 115 Ill. App. 3d 179, 450 N.E.2d 28. There, a circuit court order requiring a plaintiff to argue a motion for summary judgment upon short notice despite a circuit court rule allowing a greater time was upheld on appeal as not being an abuse of discretion. That court based its decision upon Uretsky v. Baschen (1977), 47 Ill. App. 3d 169, 361 N.E.2d 875. In Uretsky, the court held the circuit court did not abuse its discretion in allowing a party to file a motion to dismiss after the time allowed for filing the motion had expired. That court relied on Supreme Court Rule 183, which permits courts to “extend” the time authorized to perform various acts when good cause is shown. (58 Ill. 2d R. 183.) The issue of whether a circuit court is required to follow its own rule entitling a party to certain notice before being required to go to hearing was not involved.

Defendant also argues section 2 — 1005(b) of the Code of Civil Procedure (Code), which states a “defendant may, at any time, move *** for summary judgment” (emphasis added) (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1005(b)), and section 2 — 1005(c) of the Code, which allows a party opposing a summary judgment to file counteraffidavits prior to or at the time of the hearing on a motion for summary judgment (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1005(c)), when taken together, indicate the law only required a court to give a respondent to a motion for summary judgment a reasonable time to prepare. We do not agree. Section 2 — 1005(b) speaks only to the time when the motion must be filed and not when it must be heard. Allowing a respondent to file responses up and to the time of hearing merely indicates an intent to protect the interest of the respondent. We find nothing in this legislation which precludes the circuit court from enacting rules giving a respondent to such a motion a stated reasonable time to prepare.

As we have indicated, not many cases of courts of review have passed upon the responsibility of trial courts to follow their own rules. However, the supreme court did so in the case of In re Estate of Young (1953), 414 Ill. 525, 112 N.E.2d 113. There, the supreme court held an order of the probate court of Cook County was void because it was entered without the notice required by the rules of that court. The court stated “[t]he rule has the force of a statute and is binding upon the parties, as well as the court.” (Emphasis added.) (Young, 414 Ill. at 535, 112 N.E.2d at 118.) Similarly, in Deaton v. Lloyd’s Jewelry Co. (1972), 7 Ill. App. 3d 926, 289 N.E.2d 123, breach of a circuit court notice rule was held, by itself, to justify the circuit court’s denial of a motion for summary judgment. There, as here, the rule required a 10-day notice before a party could be required to go to hearing.

We disagree with Herman, particularly to the extent it is taken to indicate a circuit court has substantial discretion as to whether to follow its own rules even in the face of objection. We consider it to have interpreted Uretsky too broadly. Rather, we conclude that under Young and Deaton a trial court must follow its rules of notice when those rules are not in conflict with a statute or supreme court rule. Particularly is this so when a party objects to any waiver of the rules. We note the rule here is stated in terms that a motion for summary judgment “shall not be heard” without the requisite notice. (Emphasis added.) Rules of Practice of the Circuit Court, Sixth Judicial Circuit, Rule 2.1(f), eff. June 1, 1983.

We do not hold that some failure to follow the rules of notice may not be harmless error under certain circumstances, but such was not the case here. The Herman court indicated that filing a motion for summary judgment immediately preceding a scheduled trial date should be discouraged. Here, the speed with which the matter was heard left the record in such a shape that an important aspect of a complicated case might have to have been decided on the basis of waiver.

Accordingly, the summary judgment appealed is reversed and the cause remanded for further proceedings.

Reversed and remanded.

LUND and KNECHT, JJ., concur.