author: PRESIDING JUSTICE DiVITO

text:
      In re MARRIAGE OF CARL DURANTE, Petitioner-Appellee, and MAUREEN DURANTE, Respondent-Appellant.
    First District (2nd Division)
    No. 1-89-0917
    Opinion filed June 29, 1990.
    Rehearing denied July 31, 1990.

      Eugene Lieberman and Marlene Schwartz Rothbardt, both of Wilmette, for appellant.
    Harris & Goldstein, Ltd., of Chicago, for appellee.
   PRESIDING JUSTICE DiVITO

delivered the opinion of the court:

Respondent Maureen Durante (Maureen) seeks review of a portion of the circuit court’s judgment of the dissolution of her marriage to petitioner Carl Durante (Carl). She appeals from that portion of the judgment which distributed marital and nonmarital property and barred maintenance support. The issues presented are whether: (1) Maureen rebutted the presumption of a gift which arose from the placing of title to nonmarital property in joint tenancy; (2) the circuit court erred in barring Maureen from receiving or seeking maintenance and in failing to give adequate consideration to her contribution as a homemaker; (3) the circuit court gave adequate consideration to Maureen’s gifts to the children from her nonmarital funds; and (4) the circuit court properly considered Carl’s attempt to dissipate assets and income in apportioning the marital assets.

Carl and Maureen were married on August 18, 1956, and were the parents of two daughters who are now adults. At the time of dissolution, they were 54 years of age, and they had lived together in excess of 30 years.

At the time of dissolution, Carl was employed as a carpenter. Based on wages of $19.25 per hour, his 1987 tax return reflected a gross income of $39,039, which was the highest income he had earned during the marriage. Maureen, a homemaker who had cared for the children, did baby sitting and worked occasionally during summers and Christmas holidays at various retail stores.

Carl testified that he and Maureen were both in good health. Maureen testified that she had “middle age medical problems” which included bladder difficulty, hoarseness, breast cysts, cystic disease, and asthma; she was on medication for estrogen replacement and for a hive condition. She testified that her current physical condition would allow her to work part time in employment which did not require her to be on her feet.

In August 1960, the parties moved into a new home which Carl had built on vacant property in Northbrook, Illinois. The property had been purchased with money given to them by Maureen’s parents for that purpose. The parties stipulated that the home was worth $160,000 to $165,000 at the time of dissolution and that the mortgage had been paid.

In 1978 the parties acquired a one-half interest in a multi-apartment building located in Palatine, Illinois. The other half was held jointly by Carl’s parents. The building, subject to two mortgage liens totalling $165,000, was valued at $375,000 to $395,000. Although in their pretrial memoranda both parties classified the building as a marital asset, during the trial the parties disagreed as to whether the building was marital property. Maureen contended that Carl withdrew $15,000 from a marital account containing $30,000, that she gave him $2,300 to purchase the property, and that she used the remaining $15,000 from the account to pay for various trips and vacations which she took with her daughters. Carl maintained that both parties agreed to equally split the $30,000; he took his portion, plus $8,000 earned from side jobs, and borrowed $2,300 from Maureen to purchase his half of the building. On the cashier’s check for the $2,300, Maureen had written, “My loan to Carl for downpayment on his building.” Carl maintained and repaired the building, and Maureen has never seen it. The rental income of the building paid all its expenses.

In 1981, Maureen’s parents died. As a part of her inheritance, Maureen received a half interest in her parents’ home located in Wilmette, Illinois; the other half went to her sister. At that time, the house was valued at $129,000. When Maureen purchased the other half of the house from her sister, using $64,500 of the money from her inherited nonmarital funds, the Wilmette property was conveyed by Maureen and her sister to Carl and Maureen, as joint tenants with rights of survivorship. In 1982, the parties moved into the Wilmette residence and Carl’s mother and stepfather moved into the Northbrook house, pursuant to an agreement between the parties. At the time of dissolution, the Wilmette house was valued at $270,000.

Upon his death, Maureen’s father, Eugene F. Galin, left her a share in a trust worth $73,000, payable upon her 55th birthday in January 1989; $7,408 in an IRA account; and cash, stocks, bonds, and other securities in another trust valued at $422,721. Maureen’s income from this nonmarital property in 1987 was $13,432 from interest; $10,312 in dividends; and $12,765 in capital gains from stock sales.

Carl inherited $15,000 from the estate of Maureen’s father. These funds were deposited into a joint checking account in the names of both parties at Horizon Federal Savings. At the time the parties separated, there was $4,652.90 remaining in the account.

In September 1986, while Maureen and their daughters were vacationing in Europe, Carl moved back into the Northbrook house and withdrew the $4,652.90 from the joint account at Horizon. Later, his mother closed out a bank account which she held jointly with him at Great American Federal Savings. Additionally, Carl had $8,000 in cash which he kept in a drawer of his dresser.

The judgment for dissolution set the value of the various properties, classified them, and distributed them in the following manner:

The circuit court also ordered that the parties were forever barred from seeking or receiving maintenance from each other. Maureen appeals from that portion of the circuit court’s judgment relating to property distribution and permanent denial of maintenance.

I

Maureen maintains that the circuit court erred when it deter-, mined that she had not rebutted the presumption of a gift to the marital estate of the Wilmette home, and when it failed to consider and account for her contribution of funds to the property which it should have balanced against all other factors listed in section 503 of the Illinois Marriage and Dissolution of Marriage Act (the Act) (Ill. Rev. Stat. 1987, ch. 40, par. 503).

Prior to assigning or dividing property upon dissolution of marriage under section 503 of the Act, the court must classify it as either marital or nonmarital. Normally, . property acquired by either spouse after the marriage prior to the judgment of dissolution is presumed marital property regardless of how title is held. (Ill. Rev. Stat. 1987, ch. 40, par. 503(b); In re Marriage of Rogers (1981), 85 Ill. 2d 217, 422 N.E.2d 635.) Property obtained by gift, legacy, or descent, however, is excepted from marital property and is classified as non-marital property. (Ill. Rev. Stat. 1987, ch. 40, par. 503(a)(1).) Thus, the property received by Maureen upon the death of her father falls within the exception and was properly classified as nonmarital. As the circuit court correctly determined, however, once the Wilmette home was transferred to Carl and Maureen in joint tenancy, a presumption of transmutation and of gift to the marital estate arose. (Ill. Rev. Stat. 1987, ch. 40, par. 503(b); Atkinson v. Atkinson (1981), 87 Ill. 2d 174, 429 N.E.2d 465, cert. denied (1982), 456 U.S. 905, 72 L. Ed. 2d 162, 102 S. Ct. 1751.) That presumption could be rebutted only by clear and convincing evidence. (In re Marriage of Benz (1988), 165 Ill. App. 3d 273, 518 N.E.2d 1316, citing In re Marriage of Rink (1985), 136 Ill. App. 3d 252, 257, 483 N.E.2d 316.) The issue, then, is whether Maureen presented evidence sufficient to rebut the presumption. In re Marriage of Rogers, 85 Ill. 2d at 223.

The testimony of both parties was that they intended to occupy the home in Wilmette as their marital residence and that the transfer to joint tenancy was consistent with how they held their other property during their marriage. Maureen testified that she expected the home to stay in the family and never intended it to be a gift. However, similar testimony has been considered insufficient to rebut the presumption of transmutation. (See In re Marriage of Flemming (1986), 143 Ill. App. 3d 592, 493 N.E.2d 666; In re Marriage of Humphrey (1981), 101 Ill. App. 3d 1134, 428 N.E.2d 1116.) Moreover, it is the circuit court’s function to resolve conflicting testimony by assessing the credibility of witnesses and the weight to be accorded to their testimony. A court’s finding will not be disturbed unless it is against the manifest weight of the evidence. In re Marriage of Benz, 165 Ill. App. 3d 273, 518 N.E.2d 1316.

The circuit court’s decision that Maureen had not rebutted the presumption of gift to the marital estate did not constitute an abuse of discretion nor was it against the manifest weight of the evidence. The record reflects that, from the time she received her inheritance, Maureen contributed some amounts to the marital estate and kept other amounts. Maureen failed to exhibit a clear intent to keep the Wilmette house separate; on the contrary, she testified that holding property jointly was what they had always done.

Maureen alternatively asserts that the nonmarital property she invested in the marital home should be returned to her in recognition of her contribution. (In re Marriage of Preston (1980), 81 Ill. App. 3d 672, 678, 402 N.E.2d 332.) Contrary to Maureen’s assertions, however, reimbursement for contributions is not mandated when property is given as a gift to the marital estate. Ill. Rev. Stat. 1987, ch. 40, par. 503(c)(2); In re Marriage of Mayzner (1986), 144 Ill. App. 3d 645, 494 N.E.2d 615; In re Marriage of Flemming, 143 Ill. App. 3d 592, 493 N.E.2d 666.

II

Maureen next argues that because of the uncertainty of her health and financial status and because she will be forced to deplete her assets, this court should reverse the circuit court’s judgment which barred her from ever seeking maintenance. She further asserts that the circuit court erred in failing to consider her contribution as a homemaker and to reimburse her for that contribution.

The circuit court has broad discretion under the Act (Ill. Rev. Stat. 1987, ch. 40, par. 503(d)) to apportion marital property in “just proportions;” and that discretion is abused only when no reasonable person would take the view adopted by the court. (In re Marriage of Bentivenga (1982), 109 Ill. App. 3d 967, 971, 441 N.E.2d 336.) While the circuit court must consider all relevant factors under section 503(d) of the Act, it need not make a specific finding as to each relevant factor. (In re Marriage of Benz, 165 Ill. App. 3d 273, 518 N.E.2d 1316.) When distributing property, courts should seek a high degree of finality so that parties can plan their future with certainty and need not return repeatedly to the courts. (In re Marriage of Hellwig (1981), 100 Ill. App. 3d 452, 459, 426 N.E.2d 1087.) A larger property division, as opposed to maintenance, is the preferred method of reimbursing a spouse for such things as nonmonetary contributions and contributions of capital. In re Marriage of Legge (1982), 111 Ill. App. 3d 198, 443 N.E.2d 1189, citing Ill. Rev. Stat. 1981, ch. 40, par. 504(a).

Section 504 of the Act provides that an award of maintenance is appropriate if the spouse lacks sufficient property to provide for reasonable needs, is unable to self-support through appropriate employment, or is otherwise without sufficient income. (Ill. Rev. Stat. 1987, ch. 40, pars. 504(a)(1), (a)(2), (a)(3).) The value of a spouse’s non-marital property must be considered in determining any maintenance award. (Bentley v. Bentley (1981), 84 Ill. 2d 97, 101, 417 N.E.2d 1309; see Ill. Rev. Stat. 1987, ch. 40, par. 504(b).) Determination of the necessity for maintenance is within the circuit court’s discretion, and the court’s ruling will not be reversed unless it is contrary to the manifest weight of the evidence. In re Marriage of Bentivenga, 109 Ill. App. 3d at 972.

If maintenance is appropriate, the amount and duration are determined pursuant to the factors set forth in section 504(b) of the Act. (Ill. Rev. Stat. 1987, ch. 40, par. 504(b).) However, the factors listed in section 504(b) and the cases relied upon by Maureen which explain those factors (see, e.g., In re Marriage of Rothbardt (1981), 99 Ill. App. 3d 561, 425 N.E.2d 1146; In re Marriage of Carney (1984), 122 Ill. App. 3d 705, 462 N.E.2d 596) are not relevant to the case at bar. That is so because the record shows that the circuit court did not err in concluding that Maureen had sufficient income from other sources, thereby negating the necessity of maintenance.

Prior to Maureen’s inheritance, the parties lived on Carl’s income. Following her inheritance in 1981, Maureen segregated a great portion of her income from the marital estate and used some of it for vacations with her daughters or gifts for them. Maureen’s 1987 income of $36,509 was almost equal to Carl’s earnings, albeit a portion of it, $12,765, was from the sale of stock. Nevertheless, without the sale, Maureen would have earned $23,744, an amount not plainly inadequate for her support. (See In re Marriage of Bentivenga, 109 Ill. App. 3d 967, 441 N.E.2d 336.) Although the spouse seeking maintenance is not required to sell assets or impair capital in order to be maintained in the manner established during the marriage (In re Marriage of Thornton (1980), 89 Ill. App. 3d 1078, 1088, 412 N.E.2d 1336), the record is devoid of any evidence which supports Maureen’s assertions that she must delve into the principal to meet her expenses, other than her testimony concerning that likelihood.

Maureen contends that because she will have to pay $67,500 to Carl for his share of the Wilmette home, she will deplete her assets if she keeps that home. However, an evaluation of the marital assets awarded to each of the parties belies that contention. From a division of marital assets alone, Maureen should receive in excess of $40,000 plus the Wilmette home, which is mortgage free and was valued at $270,000 at the time of dissolution.

Maureen’s nonmarital estate, composed of cash, stocks, and bonds totaling in excess of $420,000, plus the more than $40,000 referred to above, plus the $73,000 she was eligible to receive in January 1989, can yield an income which far exceeds her 1987 income. The portion of Carl’s pension which was payable immediately, stocks, and insurance supplemented this amount. Maureen’s expense affidavit indicated that she was spending $106.35 more each month than her income. The figures above show that any deficit will be more than remedied by her income. It cannot be said that the circuit court abused its discretion or ruled against the manifest weight of the evidence when it concluded that Maureen did not need maintenance. In re Marriage of Lee (1979), 78 Ill. App. 3d 1123, 398 N.E.2d 126; In re Marriage of Bentivenga, 109 Ill. App. 3d 967, 441 N.E.2d 336.

Maureen also asserts that because of her lack of work experience and poor health, the circuit court erred when it forever barred her from seeking maintenance, for, by doing so, the court was engaging in speculation about the future. Instead, she argues, the court should have reserved its decision. (In re Marriage of Rothbardt, 99 Ill. App. 3d 561, 425 N.E.2d 1146.) Rothbardt is inapposite to the instant case, however, because there the record clearly showed that the wife was not self-sufficient and required maintenance until she could practice law and earn income. In the instant case, there was no question concerning when Maureen would become self-sufficient because, based on the property distribution and her inherited estate, she was already self-sufficient.

The record shows that in fashioning the property distribution order, the circuit court carefully considered all relevant factors, including Maureen’s contributions to the marital estate. Moreover, Maureen received one-half of Carl’s pension pursuant to a qualified domestic relations order because, as the court recognized, she had contributed to the home and family unit while Carl worked outside the home for 26 years. The circuit court’s judgment properly considered each spouse’s needs and afforded both parties an adequate standard of living. We conclude that the judgment that the parties were forever barred from seeking maintenance was not an abuse of discretion and enables the parties to plan their futures with certainty (see In re Marriage of Hellwig, 100 Ill. App. 3d 452, 426 N.E.2d 1087), and to maintain themselves in the style established during the marriage without selling assets or impairing capital. See In re Marriage of Bentivenga, 109 Ill. App. 3d at 971.

Ill

Maureen maintains that the circuit court erred in refusing testimony regarding her substantial gifts to her daughters from her non-marital funds. Maureen’s offer of proof established that she had given both daughters $20,000 as a down payment for their homes, $6,000 for IRAs, and $4,000 for their weddings. She argues that those payments totalling $60,000 from her nonmarital funds allowed the marital funds to remain larger.

While the funds were spent by Maureen during the course of the marriage, her nonmarital property made the gifts possible. There was no legal obligation for either Maureen or Carl to expend marital or nonmarital funds on behalf of their daughters for the reasons Maureen’s nonmarital funds were expended, and we reject Maureen’s invitation to stretch what she argues to be a moral obligation into a legal one. Evidence of the funds expended by Maureen was properly excluded by the circuit court.

IV

Maureen avers that when the marital assets were apportioned, the circuit court failed to consider assets dissipated by Carl’s transfer of money from a bank account jointly held by the parties, the closing of a bank account jointly held with his mother, and his misstatement of income.

It is not an acceptable practice for one spouse, in contemplation of dissolution of marriage, to dissipate marital assets. (In re Marriage of Hellwig, 100 Ill. App. 3d 452, 462, 426 N.E.2d 1087.) Pursuant to section 503(d)(1), the circuit court may consider such conduct and compensate the disadvantaged spouse when apportioning marital property (Ill. Rev. Stat. 1987, ch. 40, par. 503(d)(1)), but an award of cash or property equal to half of the amount dissipated is not mandated. In re Marriage of Hellwig, 100 Ill. App. 3d 452, 464, 426 N.E.2d 1087.

Maureen fails to cite any authority to support her contention that Carl’s conduct raises a “presumption” of concealment of assets. The circuit court properly considered the dissipated marital assets when it awarded Maureen 50% of the $4,652 which Carl had withdrawn from the joint bank account; 50% of the $8,000 Carl kept in a drawer; and none of the account formerly held in the names of Carl and his mother because that money was determined to be his mother’s. Finally, though Carl listed his income in an affidavit as $34,954.56, he conceded on cross-examination that his true income was the $39,390 stated in his income tax return. There was no evidence to the contrary nor, from this evidence, any presumption of concealment.

For all the foregoing reasons, the judgment of the circuit court is affirmed.

Affirmed.

HARTMAN and BILANDIC, JJ, concur.


source: Caselaw Access Project

author: JUSTICE HARTMAN

license: Public Domain

text:
    ANTHONY J. DE SILVA, Plaintiff-Appellant, v. BILL HARTACK et al., acting Stewards of Hawthorne Race Course, et al., Defendants-Appellees.
    First District (2nd Division)
    No. 1-89-1876
    Opinion filed June 29, 1990.

      Arthur E. Engelland, of Chicago, for appellant.
    Neil E Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Tanya Solov, Assistant Attorney General, of Chicago, of counsel), for appellees.
   JUSTICE HARTMAN

delivered the opinion of the court:

Plaintiff Anthony De Silva, a licensed jockey, was suspended by the stewards of Hawthorne Race Course (Hawthorne) after he was found guilty of violating Rule 234 of the Illinois Racing Board (IRB). After an appeal and full hearing, the IRB upheld the suspension. Plaintiff then filed a complaint for administrative review in the circuit court. From an order affirming his suspension, plaintiff appeals, contending Rule 234 of the IRB is unconstitutionally vague and, alternatively, that his suspension was contrary to the manifest weight of the evidence.

On August 19, 1988, in the fifth race at Hawthorne, plaintiff was assigned to ride a horse named “Mr. Valentino.” In a previous race held July 16, 1988 (the July race), plaintiff rode Mr. Valentino for the first time, and won. Mr. Valentino is known as a “router,” or distance horse, running a stronger race over a distance of one mile or longer. A “sprint” horse, on the other hand, runs a stronger race over a distance of less than one mile. A “router” would be at a disadvantage running against a sprint horse in a race of less than one mile.

The fifth race was a sprint race of 6V2 furlongs, or three-fourths of a mile. To facilitate Hawthorne’s trifecta wagering scheme, which required a minimum of eight horses to be entered in the race, track officials solicited Mr. Valentino’s trainer to enter the horse in the fifth race. The trainer agreed, despite his belief that Mr. Valentino would be better suited to a longer distance race.

In the fifth race, Mr. Valentino, with plaintiff riding, was listed at 13 to 1 odds, the second-longest price in the race. Mr. Valentino broke badly out of the gate, five lengths behind the nearest horse before he started running. By the end of the race, however, Mr. Valentino was passing horses and was described by one track observer as “going well at the finish.” Mr. Valentino finished sixth in the field of eight horses.

After the fifth race, the three assigned stewards reviewed plaintiff’s performance and determined that he failed to ride Mr. Valentino “so as to finish as near as possible to first, and show the best and fastest race it was capable of,” in violation of Rule 234 of the IRB. Plaintiff was suspended for 30 days.

Plaintiff appealed the stewards’ decision to the IRB, which held several hearings. William Hartack testified he was one of three IRB stewards assigned to the fifth race. Hartack and another steward, Eric Viox, viewed the race through binoculars; a third, Thomas Scott, observed on a video monitor.

According to Hartack, the last three-eighths of a mile is the crucial part of the race. There, the jockey must use his most vigorous efforts to achieve the best possible placing. He identified two techniques riders use to urge the best possible performance from a horse: hand riding and whipping. In hand riding, the jockey loosens up on the reins, pushes or applies pressure on the horse’s neck, moves his hands in a forward motion to release any restraint, and encourages the horse to go forward as fast as possible. A horse must be in balance with its head; the farther a rider can push its head forward, the farther the horse will stride to maintain its balance. The horse then runs faster with the longer stride. In conjunction with hand riding, a jockey must urge the horse with a “stick,” or whip. Hand riding and whipping are the two visual criteria used by the stewards to determine whether a horse is run to the best of its ability, or conversely, whether Rule 234 is violated. Hartack noted that some riders also scream or “chirp” to the horse; in his opinion, however, it is “absolutely not” possible for a jockey to get the best performance out of a horse without utilizing at least one of the aforementioned techniques.

Hartack further explained that if these techniques are not used, the jockey is considered to be riding “under a hold,” or coasting with the horse. Riding under a hold is usually employed to maintain a horse’s position in the field while biding time until a later charge. The only time a jockey would ride under a hold for the entire race is when the horse is winning easily. Hartack, however, would not expect a jockey to whip or abuse a fading horse simply to demonstrate the use of his “best efforts.” Nevertheless, at some point in a race, the horse had to have been “asked” to run, either by hand riding or whipping.

In the fifth race, Hartack watched Mr. Valentino almost exclusively after its bad start. He observed plaintiff did not urge the horse, either with hand riding or whipping, from the Va-mile pole to the end of the race. After the race, the stewards ordered the track veterinarian to check Mr. Valentino; she found the horse to be sound, although the front bandages were “applied rather tightly” causing slight discomfort. According to Hartack, the horse’s actions during the race did not create a situation that rendered use of the techniques unreasonable or impossible. In his opinion, use of the techniques by plaintiff would have caused Mr. Valentino to finish closer. Hartack concluded plaintiff violated Rule 234.

Thomas Scott, the steward assigned to the video monitor for the fifth race, testified that, in order to ascertain whether Rule 234 is violated, he watches for hand riding and whipping. He also asserted a jockey could not get the best performance out of a horse without using these techniques. He observed no hand motion, hand riding, or whipping by plaintiff down the stretch. He thought Mr. Valentino would have finished closer if plaintiff had used the techniques, which would have overcome the disadvantages caused by the horse’s bad start and inherent weakness in sprint races. He acknowledged, however, there was no written rule requiring a horse to be hand ridden or whipped during the course of a race.

Eric Viox, the third steward, agreed with Hartack’s explanation of the criteria used to determine a violation of Rule 234 and his conclusions concerning plaintiff’s performance. He further concurred with Hartack that plaintiff violated Rule 234 in the fifth race. He knew of no IRB rule requiring a horse to be whipped or hand ridden during a race. Eddie Arroyo, the senior steward, also agreed with Hartack’s analysis of plaintiff’s performance and the conclusion it violated Rule 234. He thought Mr. Valentino was “restrained from doing his best” by plaintiff.

For plaintiff, John Beach testified that, in his opinion, some horses run better under a hold and respond adversely to hand riding and whipping. He suggested the jockey would best know the horse’s preferences, especially if he had previous experience with the particular horse. He agreed that if Mr. Valentino responded negatively to the whip, it would do so consistently.

Bill Cassiday averred he was assigned by the Daily Racing Form to observe and comment on the fifth race. He described Mr. Valentino’s performance as “broke poorly, was going well at the finish.”

Paul Milanko, Mr. Valentino’s trainer, stated the horse performed best without being whipped and when “running against the bit.” On cross-examination, however, he admitted Mr. Valentino was whipped and hand ridden in the July race, which it won. He never instructed plaintiff not to whip or hand ride Mr. Valentino in the fifth race.

Plaintiff testified Mr. Valentino worked best without a whip and when “running against the bit.” He explained “running against the bit” was a necessary tactic with a heavy headed horse such as Mr. Valentino. According to plaintiff, this type of horse tends to founder and get leg weary unless the jockey holds onto it and keeps the bit against its mouth; this action pulls the horse’s head up, causing it to run evenly and stride properly. Plaintiff claimed he picked Mr. Valentino’s head up when turning for home in the fifth race, allowing him to run against the bit. He thought the horse was running to the best of its ability. He did not use the whip because he knew the horse would not respond. On cross-examination, however, plaintiff admitted he used the whip on Mr. Valentino in the July race down the stretch. He also acknowledged he let Mr. Valentino “run on his own” in the fifth race, and did not use the whip or hand riding techniques.

Based on this evidence, the IRB made the following findings: All four of the stewards who testified were properly qualified as expert witnesses; their testimony was unanimous and uncontroverted; there are two basic techniques used by jockeys to increase the performance of their mounts, the use of a whip and hand riding; because of the lack of other efficacious methods to urge a mount, one or both of these techniques will be utilized at some point in a race by a jockey attempting to obtain the best possible performance from his horse; the only circumstance that would preclude use of these techniques occurs when a horse maintains a lead throughout the race without the need for urging; this singular circumstance was not present in this case, as Mr. Valentino broke poorly and was trailing from the start of the race; plaintiff at no point in the race urged his horse through hand riding or whipping; and, the films of the race, in evidence, corroborated the stewards’ testimony. The IRB also found that plaintiff’s failure to urge his horse constituted clear and convincing evidence that he did not meet the requirements of Board Rule 234. Concluding that plaintiff “did not ride his horse so as to finish as near as possible to first place or to show the horse’s best efforts,” the IRB imposed a 30-day suspension.

The circuit court on administrative review found that the IRB’s decision was neither contrary to the manifest weight of the evidence nor contrary to law, and entered an order that affirmed the 30-day suspension, held Rule 234 of the IRB was not unconstitutionally vague, and granted a stay for 30 days pending appeal. Plaintiff appeals.

I

Plaintiff initially contends Rule 234 of the IRB is unconstitutionally vague. Rule 234, entitled “Horse Ridden Out,” provides:

“Every horse in every race must be ridden so as to finish as near as possible to first, and show the best and fastest race it is capable of at that time and shall not be eased up or coasted, even if it has no apparent chance to win first, second, third, or fourth prize, so that record of that race [sic] may, as truly as possible, show its real ability.”

According to plaintiff, Rule 234 is unconstitutionally vague because it does not convey sufficient warning of the proscribed conduct to the jockeys.

A license to do business conferred by the IRB (Ill. Rev. Stat. 1987, ch. 8, par. 37 — 15) constitutes a property interest entitled to due process protection. (Kurtzworth v. Illinois Racing Board (1981), 92 Ill. App. 3d 564, 588, 415 N.E.2d 1290.) Due process of law demands that a statute’s proscriptions be clearly defined and sufficiently warn of the conduct prohibited, when evaluated by common understanding and practices; definiteness is required so persons of ordinary intelligence reasonably may know what is prohibited so they can act accordingly. (People v. Jihan (1989), 127 Ill. 2d 379, 385, 537 N.E.2d 751; Lamar v. Illinois Racing Board (1977), 55 Ill. App. 3d 640, 645, 370 N.E.2d 1241.) A statute is not unconstitutionally vague “if the duty is set forth in terms definite enough to serve as a guide to those who must comply with it.” (Belville v. Illinois Racing Board (1984), 129 Ill. App. 3d 970, 976, 473 N.E.2d 500 (Belville).) Further, a court of review will accord substantial deference to the IRB’s construction and application of its rules, unless plainly erroneous or inconsistent with long-settled interpretations. Lamar v. Illinois Racing Board, 55 Ill. App. 3d at 646.

Where, as here, the rule challenged as unconstitutionally vague does not involve first amendment freedoms, it will be “ ‘examined in the light of the facts of the case at hand.’ ” (People v. Ryan (1987), 117 Ill. 2d 28, 34, 509 N.E.2d 1001, quoting United States v. Mazurie (1975), 419 U.S. 544, 550, 42 L. Ed. 2d 706, 713, 95 S. Ct. 710, 714.) Plaintiff therefore must demonstrate that the rule did not provide clear notice that his conduct in the fifth race was prohibited. See People v. Jihan, 127 Ill. 2d at 385.

In the instant case, the IRB’s refusal to construe Rule 234 as unconstitutionally vague was not plainly erroneous or inconsistent with long-settled interpretations. Rule 234 imposes three affirmative requirements on jockeys: (1) ride the horse so as to finish as near as possible to first; (2) show the best and fastest race the horse is capable of at that time; and (3) ride without easing up or coasting on the horse. Essentially, this rule obligates the jockey to procure the best possible performance from a horse. According to all four expert witnesses, the only way to ensure a horse’s best performance is through the use of hand riding or whipping. Hartack further testified that all jockeys must try one of the two techniques at some point in the race in order to determine whether the horse will run faster, and “there isn’t one rider living that doesn’t know that.” Arroyo, the senior steward, agreed with Hartack’s testimony. Plaintiff himself admitted on cross-examination that a jockey uses hand riding “to get your horse to run his best race.” Hartack stated that failure to use the techniques constitutes riding under a hold, or “coasting,” which is expressly prohibited by Rule 234. The above testimony establishes the existence of a common understanding among jockeys as to how to produce a horse’s best and fastest performance.

Combining this common understanding of Rule 234 with its purpose, which is to protect the wagering public from inaccurate or misleading information regarding a horse’s ability, the rule is definite enough to serve as a guide for the individuals who must comply with it. (Chastek v. Anderson (1981), 83 Ill. 2d 502, 416 N.E.2d 247; Belville, 129 Ill. App. 3d 970, 473 N.E.2d 500.) Moreover, in view of the nature of the racing industry and its relation to the public, statutory terms must be given a broad meaning when challenged for vagueness. (See Gillilan v. Illinois Racing Board (1980), 89 Ill. App. 3d 726, 729, 411 N.E.2d 1374.) As stated in Coleman v. Elinois Racing Board (1988), 124 Ill. 2d 218, 222, 529 N.E.2d 520, the IRB’s task is “to guarantee the honesty and integrity of horse racing in this State [which] requires continuous vigilance, because attempts to predetermine the outcome of a race is [sic] an ever present and persistent part of horse racing.” In light of the facts of this case, Rule 234 is not unconstitutionally vague.

II

Plaintiff next challenges his suspension by the IRB as being contrary to the manifest weight of the evidence. Findings of fact and conclusions by the IRB, an administrative agency, are considered prima facie true and correct. (Ill. Rev. Stat. 1987, ch. 110, par. 3 —110; Coleman v. Illinois Racing Board (1988), 124 Ill. 2d 218, 221, 529 N.E.2d 520.) Reviewing courts will not disturb an IRB decision unless it is contrary to the manifest weight of the evidence. (Coleman, 124 Ill. 2d at 221; Benefiel v. Illinois Racing Board (1987), 152 Ill. App. 3d 539, 542, 504 N.E.2d 827.) As previously detailed, there was ample evidence to support the IRB’s findings of fact and conclusions here.

Plaintiff nevertheless insists that he, as the jockey, was in the best position to know the horse’s preferences and determine an appropriate prerace strategy (specifically here, to ride Mr. Valentino without use of the whip) and that his performance resulted in the horse’s running to its best ability. These contentions are rebutted by other evidence; for example, several witnesses testified that a horse’s negative response to the whip would be a consistent reaction, yet plaintiff admitted he previously used the whip on Mr. Valentino in the July race resulting in a first-place finish. Also, Mr. Valentino’s trainer never instructed plaintiff to refrain from hand riding or whipping during the fifth race.

Plaintiff’s lengthy argument that Mr. Valentino’s performance was consistent with previous efforts is irrelevant. Rule 234 does not require a performance consistent with previous efforts, but the best and fastest race a horse is capable of at that time. Here, two stewards explicitly testified Mr. Valentino would have finished closer in the fifth race if plaintiff used the aforementioned techniques, evidence which supports the IRB’s finding of a violation of Rule 234.

From the foregoing, we cannot say that the IRB’s findings were contrary to the manifest weight of the evidence. The circuit court’s order upholding the IRB decision and suspension of plaintiff must be affirmed.

Affirmed.

DiVITO, P.J., and SCARIANO, J., concur.

       According to steward Thomas Scott, the instances when jockeys do not carry whips are so rare, it is specifically noted in the program.


text:
    HARRY W. KUHN, INC., Plaintiff-Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant and Counterplaintiff-Appellee (Marilyn Combs, Indiv. and as Adm’r of the Estate of Kimberly K. Kasper, Deceased, et al., Counterdefendants).
    First District (2nd Division)
    No. 1-89-2147
    Opinion filed June 29, 1990.

      Pretzel & Stouffer, Chartered, of Chicago (Robert Marc Chemers and Robert J. Franco, of counsel), for appellant.
    Querrey & Harrow, Ltd., of Chicago (Michael Resis, of counsel), for appellee.
   JUSTICE HARTMAN

delivered the opinion of the court:

This appeal is taken from a summary judgment, entered in a declaratory judgment action, finding that the driver of a pickup truck involved in an accident had no permission from its owner to use the vehicle, resulting in the absence of insurance coverage. A vehicular collision occurred between the pickup truck, driven by Erik Zimmerman (Zimmerman), and a dump truck, owned and operated by plaintiff Harry W. Kuhn, Inc. (Kuhn). The pickup truck was insured under a policy issued by defendant State Farm Mutual Automobile Insurance Co. (State Farm).

Prior to the instant accident, a different truck had been involved in another accident between its owner, Donald Dickens (Dickens), and Kimberly Kasper (Kasper), who had been driving her automobile. Admitting liability, Dickens allowed Kasper to use his pickup truck, insured by State Farm, until he could pay for repairs to her car or for a replacement vehicle. Kasper took the pickup truck and then permitted Zimmerman to use it.

The collision underlying this litigation occurred on April 16, 1987. Kuhn, an Illinois corporation engaged in the business of commercial trucking, alleged the following in its complaint for declaratory judgment: State Farm issued an automobile liability insurance policy to Dickens, covering the subject 1986 Mazda pickup truck; on March 14, 1987, Dickens knowingly and voluntarily gave possession of the truck to Kasper; subsequently, on April 16, 1987, Kasper permitted Zimmerman to operate the vehicle; while Zimmerman was driving westbound on North Avenue near West Chicago, Illinois, the pickup truck crossed the center line into the eastbound lane and collided head-on with a truck and trailer owned by Kuhn; the collision caused Kuhn’s truck to overturn, resulting in damages exceeding $100,000; and Kuhn promptly made a claim to State Farm, which refused to acknowledge coverage. Kuhn’s complaint requested that the circuit court declare Zimmerman a permissive user of Dickens’ vehicle and that the State Farm policy provided coverage for Kuhn’s loss.

The State Farm insurance policy contained an omnibus clause which provided, in part, “When we refer to your car, a newly acquired car, or a temporary substitute car, insured means *** any other person while using such a car if its use is within the scope of consent of you or your spouse ***.”

In its answer, State Farm admitted Dickens knowingly and voluntarily gave possession of the pickup truck to Kasper, but pleaded further that Dickens revoked his permission prior to April 16, and Kasper wrongfully refused to return the vehicle, substantially interfered with and deprived his use of the vehicle, and tortiously converted it for her own use. State Farm denied Zimmerman was a permissive user of the pickup truck and requested that the court find he was not an insured pursuant to the policy.

State Farm subsequently moved for summary judgment. Kuhn filed a cross-motion for summary judgment. Neither party claims the presence of a genuine, material issue of fact raised by their respective motions for summary judgment.

In support of its motion, State Farm attached Dickens’ affidavit, a copy of the insurance policy, and letters written by Dickens to Kasper evidencing his demand for the return of his vehicle. Dickens’ affidavit asserts he owned the pickup truck in question, which was insured with State Farm; on March 14, 1987, he was involved in an automobile accident with Kasper; following the accident, he agreed to let Kasper use the pickup truck until he could pay her to cover the repair of her vehicle or the cost of a replacement; within 10 days of this accident, Dickens demanded the return of the pickup truck from Kasper, her boyfriend Zimmerman, and her father, but they refused; because of this refusal, he contacted the Cook County sheriff’s office; he sent letters by certified mail to Kasper and her mother, demanding the return of the truck; on April 16, the truck was in Kasper’s possession without Dickens’ permission or approval; he did not authorize her or Zimmerman to drive the vehicle on April 16 when it was involved in the fatal collision with Kuhn’s truck. The certified letters sent to Kasper and her mother, and referred to in Dickens’ affidavit, were attached. Dated March 24, 1987, the letters demanded the return of the truck by noon on March 28, 1987, at a designated location.

In a discovery deposition, Dickens testified as follows. On March 14, 1987, in Wood Dale, he was involved in an accident with Kasper for which he admitted fault. He agreed to allow Kasper to drive his pickup truck until he either paid her $1,000 or was able to fix her car, and gave her a note detailing this arrangement in the event she was stopped by police.

Over the next several weeks, Dickens demanded the return of the vehicle from Kasper, Zimmerman, and Kasper’s family. Dickens called Zimmerman at work after learning he was using the truck. He telephoned Kasper repeatedly, attempted to visit her at her mother’s house and on three or four occasions had the full $1,000 to give her; however, she refused to meet with him. After Kasper failed to appear at one planned meeting with Dickens, she advised him she was afraid he was going to “rip the truck from her.”

Pursuant to questioning by Kuhn’s counsel at the deposition, Dickens described several demands he made for the return of the vehicle. Zimmerman variously told Dickens he “had the truck, and the father was driving the truck, and they had it hidden somewhere, and they weren’t going to give it back,” “I think you’re trying to rip me off. We’re keeping the truck,” and “You’re never going to get your truck back. I’ll blow the truck up.” Dickens advised Zimmerman he had the money, would meet with him anywhere, and needed the truck to be returned, but Zimmerman refused to cooperate.

Dickens also testified at the deposition that he repeatedly communicated his readiness to pay Kasper the $1,000. He “had the thousand three times in [his] hand, and she would never meet” him; he also told Zimmerman he had the money. The following exchange then occurred:

“Q. Now, sir, you told us a few minutes ago that you had offered a thousand dollars to Kim Kasper.
A. Yes. I told her mother that; I told her grandmother that.
Q. Well, did you ever tell Kim that?
A. I told everybody that.”

After talking with Kasper’s mother and grandmother, Dickens did not believe she planned to return the vehicle because “her whole family said since she’s got that piece of paper, the truck is hers and I’ll never get it back.” Kasper also told Dickens she would not return the truck, at which point he notified the Cook County sheriff’s office and made a theft complaint. The sheriff’s report makes reference to the agreement between Dickens and Kasper, and that Dickens at a later date “told her that he would not be able to pay her the full amount agreed to and that he would have to make payments,” but she refused to return the vehicle. Dickens explained that, a week to 10 days before the fatal accident, he no longer had the $1,000, but offered to pay $600 to Kasper and the balance later. Kasper and her father agreed with Dickens to arrange a payment plan.

The sheriff’s report also reflects the investigating officer suggested to Kasper that she contact Dickens’ insurer and settle the matter directly with it “if she [could] not bring herself to deal with” Dickens, to which she agreed. The sheriff’s office took no further action. Dickens indicated that he and the investigating officer had arranged to “take the truck” pursuant to “papers from a judge.” Dickens never paid the $1,000 or repaired Kasper’s vehicle. The keys to the pickup truck were never returned.

By counterclaim against the Kane County plaintiffs, State Farm sought a declaration that Zimmerman was not an “insured” under the policy, alleging he was not using the vehicle within the scope of Dickens’ consent at the time of the accident.

Kuhn’s cross-motion for summary judgment contended that Zimmerman was an insured under the omnibus clause of the policy. Kuhn’s reply, used in further support of its motion for summary judgment, provided the affidavit of Zimmerman, who stated the following: based on information provided to him by others, he was present in the pickup truck on April 16, 1987, when it collided with the Kuhn Vehicle; he had no recollection of matters from a time period prior to the accident until sometime afterward; his family and physicians advised him he was in a coma for several weeks following the accident; he was hospitalized for 7V2 months due to his injuries; he has difficulty with short-term memory; he had no recollection of Dickens ever demanding the return of his truck; he recalled the accident between Dickens and Kasper, after which Dickens handed the truck’s keys to Zimmerman; he lived with Kasper after Dickens relinquished possession of the truck; and Dickens never came to Zimmerman’s residence.

Upon uncontested facts and the cross-motions for summary judgment, the circuit court found an initial permissive transfer of the vehicle to Kasper, and thereafter, to Zimmerman. It then determined, as a matter of law, that Dickens revoked his permission prior to the fatal accident, stating:

“I don’t know what more he could have done, other than what he did do. He wrote, he called, and he reported to the police, and in all instances his position was the same, that he wanted possession of the vehicle.
I think at that time there is either a return, in the absence of a return there is a tortious conversion.”

Concluding that Zimmerman was not using the vehicle within the scope of Dickens’ consent, the circuit court granted State Farm’s, and denied Kuhn’s, motion for summary judgment. Kuhn appeals.

I

Kuhn Initially contends that Kasper, and later Zimmerman, were permissive users of Dickens’ pickup truck, thereby bringing them within the definition of “insured” for purposes of coverage under the State Farm policy. Kuhn urges that the “initial permission rule” extends insurance coverage to Zimmerman, who operated the vehicle after Dickens originally gave permission to Kasper, even though Dickens did not expressly consent to Zimmerman’s use.

The initial permission rule provides that “ ‘once the initial permission has been given by the named insured, coverage is fixed, barring theft or the like.’ ” (Maryland Casualty Co. v. Iowa National Mutual Insurance Co. (1973), 54 Ill. 2d 333, 341, 297 N.E.2d 163, quoting Odolecki v. Hartford Accident & Indemnity Co. (1970), 55 N.J. 542, 549-50, 264 A.2d 38, 42.) Once the named insured of a policy, which contains an omnibus clause that extends liability coverage to those driving the covered automobile with the insured’s consent, gives such consent to another, any third person allowed to drive the vehicle by the initial permittee likewise is covered. (Maryland Casualty Co., 54 Ill. 2d at 342.) The initial permission rule applies to deviations by the first permittee from the authority given him by the insured concerning the use of the vehicle, as well as to situations where the first permittee exceeded the scope of the authority by allowing a third person to drive the vehicle. (Maryland Casualty Co., 54 Ill. 2d 341-42.) Further, the initial permission rule confers coverage even where it cannot be established that the initial permittee granted permission to the third person driving the vehicle. (United States Fidelity & Guaranty Co. v. McManus (1976), 64 Ill. 2d 239, 243, 356 N.E.2d 78.) This doctrine is inapplicable, however, to an insurer where the third person driving the vehicle obtained possession by theft or tortious conversion. McManus, 64 Ill. 2d at 243.

Did Dickens’ revocation of permission transform Zimmerman’s continued possession of the pickup truck into a tortious conversion, thereby rendering the initial permission rule inapplicable?

In Western States Mutual Insurance Co. v. Verucchi (1977), 66 Ill. 2d 527, 363 N.E.2d 826, the court defined a conversion as ‘[a]ny unauthorized act by which an owner is deprived of his property permanently or indefinitely, or the exercise of dominion over property inconsistent with the rights of the owner.’ ” (66 Ill. 2d at 531, quoting Knight v. Seney (1919), 290 Ill. 11, 15, 124 N.E. 813.) In cases involving the initial permission rule, a tortious conversion occurs where there is a substantial interference with or deprivation of an owner’s rights in his automobile. Verucchi, 66 Ill. 2d at 532; Woodall v. Booras (1989), 182 Ill. App. 3d 1096,1103, 538 N.E .2d 1263.

In the instant case, Dickens’ sworn deposition testimony, elicited by Kuhn’s counsel, establishes he repeatedly demanded the return of the truck from Kasper, Zimmerman, and Kasper’s family, but they did not comply. On at least three occasions, he was willing and able to pay Kasper the $1,000 and retake possession of the vehicle, but she refused to meet him. He telephoned Kasper repeatedly and attempted to meet or visit with her in person, without success. He talked to Kasper’s mother and grandmother. He wrote letters to Kasper and her mother demanding the truck. He contacted police. He completed a theft complaint. He, Kasper, and her father agreed to arrange a payment plan. Dickens planned to take legal action to reclaim the truck. In all instances, Dickens’ clear intent was that he wanted the immediate return of his pickup truck. No evidence was offered by Kuhn to the contrary.

Based on this uncontested state of the record, Kasper’s retention of the vehicle was unauthorized and deprived Dickens of his pickup truck for an indefinite time. Dickens’ uncontroverted, sworn deposition testimony indicates he repeatedly demanded his vehicle, and further, that he was ready and able to pay the $1,000 and informed “everybody” of that fact, including Zimmerman, Kasper, her mother, and her grandmother. He later told Kasper’s father he was agreeable to a payment plan when he no longer had the full amount. Although neither Kasper nor Zimmerman is able to offer evidence to rebut Dickens’ deposition testimony or affidavit to create an issue of fact, Kuhn has provided no other evidence, such as counteraffidavits from Kasper’s mother, father, or grandmother, persons identified by Dickens as having knowledge of his offers to pay the $1,000 and of his repeated demands for the vehicle. The facts contained in Dickens’ affidavit and deposition testimony are uncontradicted and must be taken as true. Purtill v. Hess (1986), 111 Ill. 2d 229, 241, 489 N.E.2d 867.

Nor can we characterize Dickens’ actions as a “period of negotiation,” as suggested by Kuhn’s counsel at oral argument. Dickens’ behavior is inconsistent with negotiation; for example, after his demands for the vehicle were rejected, Dickens went to the police and completed a theft complaint in an attempt to recover possession. The unauthorized conduct of Zimmerman and Kasper substantially interfered with and deprived Dickens of his rights in the pickup truck and amounted to a tortious conversion. Woodall v. Booras, 182 Ill. App. 3d at 1103.

Kuhn’s further assertion that Zimmerman’s intent should control must be rejected. In considering a tortious conversion of one’s property, the converter’s malice, culpability, or conscious wrongdoing is irrelevant. (State Farm Fire & Casualty Co. v. Rixecker (1989), 184 Ill. App. 3d 506, 510, 540 N.E.2d 436.) Dickens’ deposition testimony nevertheless is replete with evidence, direct and circumstantial, of Zimmerman’s intent to deprive him of the possession of the pickup truck. There is no evidence of any contrary intent harbored by Zimmerman. The circuit court properly found as a matter of law that Zimmerman was not using the vehicle within the scope of Dickens’ consent at the time of the accident.

II

Kuhn next asserts the circuit court improperly considered statements in Dickens’ affidavit and deposition testimony that related to his conversations with Kasper and Zimmerman, claiming that such evidence constituted inadmissible hearsay. A statement is not hearsay, however, if it is not offered to prove the facts asserted. (McCormick, Evidence §249, at 732 (E. Cleary 3d ed. 1984).) Hearsay is not implicated if the mere making of the statement is legally significant (see Digman v. Johnson (1960), 18 Ill. 2d 424, 427, 164 N.E.2d 34; M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §801.5, at 576-77 (5th ed. 1990)), such as a statement relating to and explaining a particular act. See Grebe v. Vacek & Co. (1968), 103 Ill. App. 2d 79, 243 N.E.2d 438.

In this case, Dickens’ oral and written demands were not hearsay, but were legally relevant under the circumstances that they were, in fact, made. (See Lundberg v. Church Farm, Inc. (1986), 151 Ill. App. 3d 452, 458-59, 502 N.E.2d 806.) The tortious conversion did not occur until Dickens demanded the return of his pickup truck and Zimmerman and Kasper refused to comply. (See Scheduling Corp. of America v. Massello (1983), 119 Ill. App. 3d 355, 359, 456 N.E.2d 298.) Dickens’ “statements” to and conversations with Zimmerman and Kasper demanding the return of the truck were legally significant simply because they were made. (Lundberg v. Church Farm, Inc., 151 Ill. App. 3d 452, 502 N.E.2d 806; cf. Patterson-Stocking, Inc. v. Dunn Brothers Storage Warehouses, Inc. (1937), 201 Minn. 308, 276 N.W. 737 (evidence of instructions given by owner to driver, to show whether driver acting within owner’s consent at time of accident, was not hearsay).) As the circuit court properly recognized in rejecting Kuhn’s hearsay objection, “[Assuming it is hearsay doesn’t mean anything. What is important is the demand. There was a demand of Kasper, there was a demand of Zimmerman.” Consideration of this evidence was not error.

Defendant’s last contention is that Dickens’ conversations with Kasper and Zimmerman were barred by the Dead Man’s Act (Ill. Rev. Stat. 1987, ch. 110, par. 8 — 201). Kuhn, however, may not avail itself of the Dead Man’s Act. The only parties entitled to object to the testimony of an interested witness under this statute are adverse parties suing as representatives of the deceased or incompetent persons. (See Brownlie v. Brownlie (1932), 351 Ill. 72, 77, 183 N.E. 613.) Here, Kuhn is suing in its own behalf and is not protected by the Act.

Additionally, as found by the circuit court, Dickens was not an interested party. For Dickens to have been disqualified as a witness “directly interested in the action” under the Dead Man’s Act, his interest in the outcome must have been such that certain pecuniary gain or loss would have come directly to him as the immediate result of the judgment. (Michalski v. Chicago Title & Trust Co. (1977), 50 Ill. App. 3d 335, 339, 365 N.E.2d 654.) In this case, Dicken’s personal liability coverage was not at issue. He gained nothing through the declaratory judgment entered in favor of State Farm; also, he would have been covered under his insurance policy if Kuhn had prevailed. He had no direct, certain, and pecuniary interest in the result of this case. The circuit court properly rejected Kuhn’s objection based on the Dead Man’s Act.

Based upon the foregoing, the judgment of the circuit court must be affirmed.

Affirmed.

DiVITO, P.J., and SCARIANO, J., concur.

      In the complaint, Kimberly Kasper is incorrectly referred to as “Kimberly Karson.”

      Kasper and her son, Donald Kasper, age three, passengers in the pickup truck, were killed in the accident. Zimmerman was severely injured. The estates of Kimberly and Donald Kasper eventually filed suit in Kane County against Zimmerman and Dickens, among others, as a result of the accident.

      Contrary to Kuhn’s counsel's claim, the police did not recognize that Dickens had no immediate right to possession; rather, the police suggested only that it was a civil dispute and not a criminal matter.


author: JUSTICE SCARIANO JUSTICE BILANDIC,

text:
    PATRICIA AIKENS, Plaintiff-Appellee, v. EUGENE MORRIS et al., Defendants-Appellants.
    First District (2nd Division)
    No. 1-89-0844
    Opinion filed June 29, 1990.
    Rehearing denied July 31, 1990.

      BILANDIC, J., dissenting.
    Dowd & Dowd, Ltd., of Chicago (Robert C. Yelton III and Philip J. McGuire, of counsel), for appellants.
    Beerman, Swerdlove, Woloshin & Barezky, of Chicago (Michael A. Burr, of counsel), for appellee.
   JUSTICE SCARIANO

delivered the opinion of the court:

Plaintiff brought this action to recover damages she incurred when her automobile was struck by a squad car driven by an Evanston police officer. After a bench trial, she was awarded judgment in the amount of $13,000. Defendants appeal on the ground that liability was precluded by sections 2 — 202 and 2 — 109 of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act or Act) (Ill. Rev. Stat. 1979, ch. 85, pars. 2-202, 2-109). We affirm.

On July 1, 1979, at approximately 2:45 a.m., Evanston police officer Eugene Morris and his partner were transporting a prisoner from the Skokie lockup to the Evanston lockup in their squad car. Before reaching their destination, they collided with plaintiff’s automobile. Defendants do not contend that the patrol car was being operated as an emergency vehicle at the time of the accident. In the first count of her complaint, plaintiff charged Morris with negligent driving and sought to impose liability upon the City of Evanston (the City) under a respondeat superior theory. Count II asserted that Morris’ actions amounted to willful and wanton misconduct, for which both defendants are liable.

A bench trial was held on February 24, 1989, and at the close of plaintiff’s case, defendants moved for a finding on the ordinary negligence claim, arguing that since Morris was involved in the transport of an arrestee in custody at the time of the occurrence, sections 2— 202 and 2 — 109 of the Tort Immunity Act foreclose liability for ordinary negligence. The motion was denied on the ground that the officer was not enforcing or executing a law at the time of the accident. However, the judge later granted defendants’ motion for a finding on count II, the willful and wanton misconduct count. The court found in favor of plaintiff on count I of the complaint, assessed damages at $20,000, apportioned negligence 35% to plaintiff and 65% to defendants, and entered judgment in the amount of $13,000.

In this appeal, defendants contend that the trial court erred in holding that the Tort Immunity Act does not prohibit application of the ordinary care standard. Section 2 — 202 of the Act provides: “A public employee is not liable for his act or omission in the execution or enforcement of any law unless such act or omission constitutes willful and wanton negligence.” (Ill. Rev. Stat. 1979, ch. 85, par. 2— 202.) Further, “[a] local public entity is not liable for an injury resulting from an act or omission of its employee where the employee is not liable.” (Ill. Rev. Stat. 1979, ch. 85, par. 2 — 109.) Thus, if Morris is entitled to immunity pursuant to section 2 — 202, the City cannot be found liable.

In Arnolt v. City of Highland Park (1972), 52 Ill. 2d 27, 282 N.E.2d 144, another police vehicle collision case, the supreme court on direct review reversed the trial court’s holding that any action taken by a police officer while on duty is entitled to immunity under section 2 — 202. The court noted that only acts done “while in the actual execution or enforcement of a law” are entitled to immunity (52 Ill. 2d at 33, 282 N.E.2d at 147), and offered as an illustration that a police officer merely cruising in his car while in the line of duty may not be afforded immunity (52 Ill. 2d at 34, 282 N.E.2d at 148). After holding that the question of whether a police officer is executing and enforcing the law “is a factual determination which must, in every case, be made in the light of the circumstances involved” (52 Ill. 2d at 35, 282 N.E.2d at 149), the court remanded the case for further fact-finding on the nature of the officer’s conduct at the time of the accident.

Relying on Arnolt, the court in Anderson v. City of Chicago (1975), 29 Ill. App. 3d 971, 331 N.E.2d 243, held that a pedestrian who was struck by a police officer transporting two prisoners in a squad car was not required to show willful or wanton negligence by the Tort Immunity Act. The court affirmed the trial judge’s finding that “although Officer Vivrin was on duty and in the course of his employment at the time of the occurrence, he was not enforcing or executing any laws.” 29 Ill. App. 3d at 977, 331 N.E.2d at 248.

Defendants dispute plaintiff’s contention that Arnolt and Anderson require affirmance, arguing that these decisions have lost their vitality in light of more recent supreme court cases interpreting section 2 — 202. (Fitzpatrick v. City of Chicago (1986), 112 Ill. 2d 211, 492 N.E.2d 1292; Thompson v. City of Chicago (1985), 108 Ill. 2d 429, 484 N.E.2d 1086.) In Thompson, a police vehicle struck plaintiff while backing up when an unruly mob began pelting the car with bottles, rocks, and debris. Plaintiff argued immunity was improper because when the officer reversed the car in an attempt to extricate himself, he ceased being engaged in enforcing the law. The court rejected this argument, holding that the policeman’s action was a mere tactical retreat, and as such, was part of a continuing course of conduct intended to restore the peace. The court reasoned that “[ejnforcing the law is rarely a single, discrete act, but is instead a course of conduct.” 108 Ill. 2d at 433, 484 N.E.2d at 1088.

The plaintiff in Fitzpatrick was involved in an automobile accident on an expressway, and a police officer in a squad car stopped nearby to investigate. Another car struck the patrol car, causing it in turn to strike the plaintiff. The supreme court rejected plaintiff’s argument that the Tort Immunity Act did not apply:

“Thus, where the evidence establishes that at the time of his alleged negligence a public employee was engaged in a course of conduct designed to carry out or put into effect any law, an affirmative defense based upon sections 2 — 202 and 2 — 109 of the Tort Immunity Act (111. Rev. Stat. 1979, ch. 85, pars. 2— 202, 2 — 109) should be available to the governmental employee and his employer.” (Fitzpatrick, 112 Ill. 2d at 221, 492 N.E.2d at 1296.)

The court specifically noted that plaintiff relied on Arnolt and Anderson in arguing that the Act did not apply, but found these cases were inapposite given the relatively strong link to the enforcement of traffic laws present in Fitzpatrick.

Defendants here suggest Thompson and Fitzpatrick have implicitly overruled Arnolt. We find no warrant for this contention. In both of these more recent decisions, there was a clear and unmistakable nexus between the conduct of the police officer and the investigation or prevention of an ongoing criminal offense. Such circumstances contrast sharply with an accident involving the cruising patrol car hypothesized by Arnolt or the transportation of prisoners as seen in Anderson and in this case. Accordingly, we believe that Thompson and Fitzpatrick do not support the City’s position, as both cases are distinguishable on their facts.

Moreover, traditional principles of statutory construction preclude our giving to this case the broad reading advocated by defendants; having been promulgated in derogation of the common law, the Tort Immunity Act must be strictly construed against defendants. (Lester v. Chicago Park District (1987), 159 Ill. App. 3d 1054, 513 N.E.2d 72; Clark v. City of Chicago (1980), 88 Ill. App. 3d 760, 410 N.E.2d 1025.) The deceptively broad language used in Fitzpatrick cannot be isolated from its proper context and made to serve as a bar to lawsuits against municipal police officers whenever the act complained of is connected with their more routine job duties.

For the foregoing reasons, we affirm the judgment of the trial court.

Affirmed.

DiVITO, P.J., concurs.

JUSTICE BILANDIC,

dissenting:

The majority concludes that an Evanston police officer transporting a prisoner who is under arrest, from the Skokie lockup to the Evanston lockup at 2:45 a.m., is not engaged “in the execution or enforcement of any law” and, therefore, cannot invoke section 2 — 202 of the Local Governmental and Governmental Employees Tort Immunity Act. To reach this conclusion the majority erroneously states that the court in Anderson v. City of Chicago (1975), 29 Ill. App. 3d 971, 331 N.E.2d 243 held “that a pedestrian who was struck by a police officer transporting two prisoners in a squad car was not required to show willful or wanton negligence by the Tort Immunity Act. The court affirmed the trial judge’s finding that ‘although Officer Vivrin was on duty and in the course of his employment at the time of the occurrence, he was not enforcing or executing any laws.’ ” 201 Ill. App. 3d at 406, quoting Anderson, 29 Ill. App. 3d at 977.

On the contrary, in Anderson, there is no reference to any arrest or the destination of any prisoners. In the case at bar, the defense vigorously asserts that the transportation of a prisoner under arrest at 2:45 a.m. is the “execution or enforcement” of the law which supports tort immunity for the officer. In Anderson the defense did not assert that Officer Vivrin was engaged in the transport of two prisoners when his squad car and plaintiff, a pedestrian, were involved in an accident. The court held that

“defendants’ argument is directed primarily toward the issue of contributory negligence. *** The fact that two police officers testified that plaintiff was not in the crosswalk and that she turned back into the car does not, of itself, show that the decision for plaintiff was against the manifest weight of the evidence. Plaintiff’s testimony that she was in the crosswalk was corroborated expressly by Johnnie Mae Thomas and inferentially by Officer Mugnolo. The trial judge saw and heard the witnesses and we are unable to state that his judgment is against the manifest weight of the evidence.” (Emphasis added.) Anderson, 29 Ill. App. 3d at 975.

It is therefore wrong to assert that Anderson stands for the principle that the transportation of a prisoner under arrest at 2:45 a.m. by a police officer is not the “execution or enforcement” of any law that would support tort immunity for the officer.

The majority states that Anderson relied on Arnolt v. City of Highland Park (1972), 52 Ill. 2d 27, 282 N.E.2d 144. In Arnolt, the court used a hypothetical illustration in deciding an issue dealing with pleadings. The example stated “[a] policeman, while merely cruising in a vehicle in the line of duty, may not be afforded immunity under the Tort Immunity Act in that the factual determination of the situation may indicate that he was not at the time executing or enforcing a law.” (Emphasis added.) (52 Ill. 2d at 34.) Even if this is not dicta, the court did not say that “cruising in a vehicle while on duty” is not “executing or enforcing a law” that would not afford immunity. The court merely said that under the example it “may” or may not be an act of “executing or enforcing a law.” The court obviously recognized that there is a factual difference between cruising in the vicinity of the county jail immediately after two convicted murderers escaped and cruising in a crime-free residential area.

In my opinion, the majority continues to interpret section 2 — 202 in the narrowest possible manner, contrary to recent decisions of our supreme court broadening the protection afforded to police officers against liability for negligent acts committed while carrying out and upholding the law.

Fitzpatrick v. City of Chicago (1986), 112 Ill. 2d 211, 492 N.E.2d 1292, and Thompson v. City of Chicago (1985), 108 Ill. 2d 429, 484 N.E.2d 1086, are recent pronouncements of our supreme court that the narrow construction the courts placed upon section 2 — 202 in cases such as Anderson and Arnolt will no longer be accepted.

In Thompson, our supreme court expressed the view that “[e]n-forcing the law is rarely a single, discrete act, but is instead a course of conduct.” (108 Ill. 2d at 433.) Approximately one year later, our supreme court commented on this new attitude toward section 2 — 202 when it decided Fitzpatrick:

“[In Thompson] [w]e expressed the view that an interpretation of section 2 — 202 of the Tort Immunity Act *** which granted immunity only where the specific, allegedly negligent act was one of execution or enforcement was ‘overly narrow.’ [Citation.] Thus, where the evidence establishes that at the time of his alleged negligence a public employee was engaged in a course of conduct designed to carry out or put into effect any law, an affirmative defense based upon sections 2 — 202 and 2— 109 of the Tort Immunity Act [citation] should be available to the governmental employee and his employer.” Fitzpatrick v. City of Chicago (1986), 112 Ill. 2d 211, 221, 492 N.E.2d 1292.

The only fair reading of Fitzpatrick is that Anderson and the line of cases it represents are no longer good law. In Trepachko v. Village of Westhaven (1989), 184 Ill. App. 3d 241, 540 N.E.2d 342, appeal denied (1989), 127 Ill. 2d 642, the defendant police officer stopped a motorist for a traffic violation on a divided highway. The motorist stopped in the right-hand traffic lane and the officer directed him to move the car across the other lane to the median strip. During the movement, the car was struck by a motorcycle. The driver and passenger of the motorcycle suffered fatal injuries.

Their estates sued the village and the officers for damages caused by the negligence of the police officer.

Defendants contended that section 2 — 202 conferred immunity against the claims. This court affirmed the dismissal of the claims on the basis of Fitzpatrick. (Trepachko, 184 Ill. App. 3d at 247, 251.) Our supreme court denied leave to appeal.

Trepachko is particularly relevant because of a significant fact it has in common with the case at bar. In each case, the accident occurred during movement of a person under police control from one place to another. In Trepachko, the officer directed the person stopped for a traffic violation to drive from one side of the road to the other. In the case at bar, the officer was driving the squad car in which the prisoner was being transported to a lockup. Citing Fitzpatrick, this court held that the police officer in Trepachko was immune from liability under 2 — 202 of the Tort Immunity Act and noted that the concept of immunity is expanding where police officers are “providing police services [citations] or executing, enforcing or implementing any law. [Citations.]” Trepachko, 184 Ill. App. 3d at 247.

Based on the foregoing, I would reverse the judgment of the circuit court of Cook County and remand this cause with directions to enter judgment for the defendants.


author: JUSTICE LINN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. DAWN HOSKINSON, Defendant-Appellee.
    First District (4th Division)
    No. 1-89-0175
    Opinion filed June 29, 1990.
    Rehearing denied July 19, 1990.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, Gael O’Brien, and Adam Grosch, Assistant State’s Attorneys, of counsel), for the People.
    William J. Haddad, of Chicago, for appellee.
   JUSTICE LINN

delivered the opinion of the court:

This is an appeal by the State of the circuit court’s order dismissing the five-count indictment against Dawn Hoskinson on double jeopardy grounds. The State contends that the trial court erred in finding that a prosecution of defendant for aggravated battery constituted the same offense as the failure to obey a police officer for which defendant was previously convicted. The State argues that the court relied on the “same evidence” test which our supreme court rejected in People v. Mueller (1985), 109 Ill. 2d 378, 488 N.E.2d 523.

On April 8, 1988, at about 5 p.m., Chicago police officer Lameka was directing traffic at the intersection of Michigan Avenue and Ohio Street. Officer Lameka raised his hand to signal southbound drivers to stop. However, defendant, who was travelling southbound, proceeded through the intersection, became enmeshed in traffic and momentarily was unable to proceed. Officer Lameka radioed for assistance as he approached her car. Officer Cagney responded to the radio message, approached the window on the driver’s side and asked defendant for her driver’s license. Defendant refused and rolled up her window. Officer Lameka was standing at the front of defendant’s vehicle, and he had started to write down her license plate number when defendant drove forward. Her vehicle hit officer Lameka and knocked him onto the trunk of the car in front of defendant’s vehicle. When Officer Cagney again instructed defendant to produce her license, she failed to do so and she continued driving. At this point Officer Lameka was struck by the mirror on the driver’s side of the vehicle and knocked to the ground, injuring his knees and shins. Meanwhile, Officer Cagney, who attempted to open the driver’s side door of defendant’s car, was dragged about five feet before he fell, breaking his wrist.

On June 20, 1988, defendant was found guilty of violating the municipal ordinance of failure to obey a peace officer. Subsequently, defendant filed a petition to dismiss the aggravated battery charges which was granted by the trial court on double jeopardy grounds.

The fifth amendment to the United States Constitution provides that, “No person shall *** be subject for the same offence to be twice put in jeopardy of life or limb ***.” (U.S. Const., amend. V.) Article I, section 10, of the Illinois Constitution provides that, “No person shall *** be twice put in jeopardy for the same offense.” (Ill. Const. 1970, art. I, §10.) The Supreme Court has consistently applied the test set forth in Blockburger v. United States (1932), 284 U.S. 299, 76 L. Ed. 306, 52 S. Ct. 180, to determine whether particular conduct constituted more than one offense. If so, the double jeopardy clause is not implicated. Under the traditional Blockburger test, a person is charged with more than one offense when each provision requires proof of an additional fact that the other does not. (Blockburger v. United States, 284 U.S. at 304, 76 L. Ed. at 309, 52 S. Ct. at 182.) This test thus focused on the statutory elements of each offense. See Illinois v. Vitale (1980), 447 U.S. 410, 65 L. Ed. 2d 228, 100 S. Ct. 2260.

Recently however, in Grady v. Corbin (1990), 495 U.S._, 109 L. Ed. 2d 548, 110 S. Ct. 2084, the Supreme Court determined that the Blockburger test, which was developed in the context of multiple punishments in a single prosecution, was inadequate to protect defendants from the burden of multiple trials. (Grady v. Corbin, 495 U.S. at_, 109 L. Ed. 2d at 564, 110 S. Ct. at 2093.) The Supreme Court reaffirmed the principle set forth in Brown v. Ohio (1977), 432 U.S. 161, 53 L. Ed. 2d 187, 97 S. Ct. 2221, that the Blockburger test was not the only standard for determining whether successive prosecutions impermissibly involve the same offense. A successive prosecution is barred if the government, “to establish an essential element” in a subsequent prosecution, “will prove conduct that constitutes an offense for which the defendant has already been prosecuted.” (Grady v. Corbin, 495 U.S. at_, 109 L. Ed. 2d at 564, 110 S. Ct. at 2093.) Thus, while Blockburger was concerned solely with the statutory elements of the crime, in a case involving a successive prosecution “[t]he critical inquiry is what conduct the State will prove.” Grady v. Corbin, 495 U.S. at_, 109 L. Ed. 2d at 564, 110 S. Ct. at 2093.

In Corbin, for example, the defendant’s auto struck oncoming vehicles on a highway killing one person and injuring another. Defendant was issued traffic tickets for driving while intoxicated and failing to keep to the right of the median. He pleaded guilty to the traffic tickets and was subsequently indicted for reckless manslaughter, criminally negligent homicide ánd third degree reckless assault. The State, in its pleadings, admitted that it would rely on the conduct for which Corbin had already been convicted, the traffic violations, to establish the essential elements of the homicide and assault charges. Accordingly, the Court determined that the double jeopardy clause barred the successive prosecution.

In the instant case, the State argues that because the elements of failure to obey a police officer and of aggravated battery are different, a subsequent prosecution would not subject defendant to a second prosecution for the same offense. Were it not for the Supreme Court’s ruling in Corbin, we would decide this case in accordance with People v. Jackson (1987), 118 Ill. 2d 179, 514 N.E.2d 983. In Jackson, our supreme court held that while a driving under the influence (DUI) conviction was prima facie evidence of a reckless act, a DUI conviction does not establish an essential element of reckless homicide, and thus, the subsequent homicide charge was not barred on double .jeopardy grounds. In light of Corbin, the validity of this portion of Jackson seems questionable.

In the present case, defendant argues that her conviction for failure to obey a police officer was an essential element of the aggravated battery with which she is charged. In Illinois, a person commits aggravated battery when in committing a battery she intentionally or knowingly causes great bodily harm or permanent disability. (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 4(a).) A person also commits aggravated battery when in committing a battery she either:

“(6) Knows the individual harmed to be a peace officer *** while such officer or employee is engaged in the execution of any of his official duties including arrest or attempted arrest;
* * *
(8) Is, or the person battered is, on or about a public way, public property or public place of accommodation or amusement.” (Ill. Rev. Stat. 1987, ch. 38, pars. 12 — 4(b)(6), (b)(8).)

Defendant here was indicted on five counts of aggravated battery, two of which were based on a violation of section 12 — 4(b)(6) of the Criminal Code of 1961, which requires that defendant know the individual harmed is a peace officer, while the officer is engaged in his official duties. The successive prosecution of these two counts is barred by the double jeopardy clause where the State would have to prove the conduct of defendant that constituted the failure to obey an officer, of which she has already been convicted, in order to prove the essential elements of aggravated battery.

In the other three counts, based on section 12 — 4(a) (111. Rev. Stat. 1987, ch. 38, par. 12 — 4(a)), and 12 — 4(b)(8) of the Criminal Code (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 4(b)(8)), proof that defendant failed to avoid a police officer is not so inextricably tied to the offense as to bar a subsequent prosecution. Accordingly, we find that the counts of the indictment based on section 12 — 4(bX6) of the Criminal Code (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 4(b)(6)) were properly dismissed by the trial court. The dismissal of the remaining counts in the indictment was, however, improper.

Finally, defendant argues that she was entitled to a single prosecution under the compulsory joinder provisions of the Criminal Code. (Ill. Rev. Stat. 1987, ch. 38, pars. 3 — 3, 3 — 4.) We disagree. The compulsory joinder provisions of these sections do not apply to offenses that have been charged by the use of uniform citation and complaint forms used by police officers in charging traffic offenses. (People v. Jackson (1987), 118 Ill. 2d 179, 192, 514 N.E.2d 983.) Here, defendant was charged by uniform citation of an ordinance violation; hence, sections 3 — 3 and 3 — 4 of the Criminal Code do not apply. (See People v. Hogan (1989), 186 Ill. App. 3d 267, 542 N.E.2d 178.) Defendant’s assertion that the State has waived this issue is without merit.

Accordingly, for the reasons stated above, that portion of the trial court’s order dismissing the counts of the indictment based on section 12 — 4(b)(6) of the Criminal Code (Ill. Rev. Stat. 1987, ch. 38, par. 12— 4(bX6)) is affirmed. That portion of the order dismissing the remaining three counts of the indictment is reversed and the cause remanded.

Affirmed in part; reversed in part and cause remanded.

JOHNSON and JIGANTI, JJ., concur.

      “A person commits battery if he intentionally or knowingly without legal justification and by any means, (1) causes bodily harm to an individual or (2) makes physical contact of an insulting or provoking nature with an individual.” Ill. Rev. Stat. 1987, ch. 38, par. 12 — 3.