author: JUSTICE LEWIS

text:
      In re MARRIAGE OF MILDRED F. STEELE, Petitioner-Appellee, and LAWRENCE E. STEELE, Respondent-Appellant.
    Fifth District
    No. 5—90—0193
    Opinion filed May 1, 1991.

      Michael J. Meyer, of Law Offices of Michael J. Meyer, of Effingham, for appellant.
    Marilyn B. Resch and Kim L. Spaits, both of Parker, Siemer, Austin, Resch & Resch, of Effingham, for appellee.
   JUSTICE LEWIS

delivered the opinion of the court:

The respondent, Lawrence E. Steele, appeals from the circuit court’s order denying his motion to vacate judgments, to reopen proofs, and for a rehearing and from the court’s division of the marital property resulting from the dissolution of his marriage to the petitioner, Mildred F. Steele. On appeal, the respondent contends that the court erred in awarding the petitioner a portion of his employment benefits which were acquired after their separation; that the court erred in awarding the petitioner 50% of his employment benefits that were acquired during their marriage; and that the court erred in denying the respondent’s motion to vacate judgments, to reopen proofs, and for a rehearing.

The petitioner and the respondent were married on May 31, 1973. On June 8, 1983, the petitioner filed a petition for dissolution of marriage, a petition for temporary relief, and an affidavit in support of her petition for temporary relief. Although an order granting temporary relief to the petitioner does not appear in the record, from various statements in the record, it appears that the respondent was ordered to pay the petitioner temporary maintenance, i.e., the respondent was required to pay the mortgage payments and the utilities bills on the house where the petitioner was living. It also appears from the record that the hearing on grounds for the dissolution was heard at the same time as the petition for temporary relief, but that an order dissolving the marriage was not entered immediately following the hearing.

On May 26, 1986, a hearing was held on the division of the marital property. Subsequently, an order dissolving the marriage was entered on March 19, 1987. In the order dissolving the parties’ marriage, the court reserved its ruling on the remaining issues of property and maintenance. Ultimately, the order dividing the parties’ marital and non-marital property was entered on November 22, 1989. The respondent filed a post-trial motion on December 22, 1989, in which he sought to vacate the judgments, to reopen proofs, and a rehearing. A hearing on the respondent’s post-trial motion was held on February 26, 1990, and the court denied the respondent’s motion.

At the hearing on the division of the parties’ property, the petitioner testified that she was 59 years of age, and her current source of income was through general relief, from which she earned $70 a month for 16 hours of work. She lived in the parties’ home in Wapakoneta, Ohio. This home and the parties’ residence in Edgewood, Illinois, were both purchased during the marriage. The petitioner stated that during the marriage, she had once worked at a truck stop washing dishes for a month or six weeks, and, on another occasion, she had worked for two weeks as an assistant cook at the county jail. According to the petitioner, the respondent had preferred that she work at home. Before her marriage to the respondent, the petitioner had worked summers at a laundry, and she had also worked as a nurse’s aide at a nursing home. She was now unable to do this type of work because of medical problems with her lower back. Her education consisted of an eighth-grade education and a nurse’s aide diploma. The petitioner had taken the GED examination in 1974 or 1975; however, she did not pass the mathematics portion of the exam. Since her separation from the respondent, the petitioner had sought work, but she had been unable to find employment.

The petitioner further testified that, in addition to her back problems, she has spurs on her left heel and her right ankle which prevent her from standing for any length of time. Additionally, the petitioner had suffered upon occasion from deep depression, and, in either 1980 or 1981, she was hospitalized for this problem. She takes medication consisting of a “nerve pill” and high blood pressure pills. She also had bladder operations in 1981 and 1983.

The petitioner had been married three times prior to her marriage to the respondent, and she had seven children as a result of her prior marriages; however, she had no children to the respondent. During the marriage, the respondent had helped support her children. At the time of the hearing, the petitioner’s children were emancipated and were not dependent on her.

The petitioner testified that, other than the two homes owned by her and the respondent, she owned no other real estate. At the time of her marriage to the respondent, the petitioner had owned a home and five rooms of furniture. She sold the home, for which she received $4,000. Most of the furniture the petitioner had brought into the marriage was now in the possession of the respondent. The petitioner explained that she had no bank accounts, no certificates of deposits, and no stocks or other investments. Diming their marriage, the respondent’s parents gave her and the respondent $2,500, which had been held in a joint account in the Illinois Guarantee Savings and Loan. She stated she had not consented to the respondent’s withdrawal of this money. The petitioner admitted that the respondent had been paying the mortgage and the utilities on the home in Wapakoneta since their separation. In the petitioner’s financial statement, she listed her total monthly expenses as being approximately $1,000.

The respondent testified as an adverse witness for the petitioner and in his own behalf. He testified that he and the petitioner were married on May 31, 1973, and that they had separated on March 12, 1983. He was employed as a terminal operator for Shell Pipeline (Shell), a position he had held for 32 years. His current hourly rate was $14.55 per hour for a 40-hour work week; however, he sometimes worked overtime. In 1985, the respondent earned a bonus of $15,000 from his employment, and that year (1986), he had received a bonus of $1,000. As part of his employment with Shell, the respondent has certain benefits which will be distributed to the respondent upon his retirement. These benefits consisted of his pension fund, a stock ownership fund, and a fund called the Shell Provident Fund (Provident Fund). Although these various benefits are to be distributed upon his retirement, the Provident Fund permits him to remove a certain amount from the Provident Fund periodically. In fact, the respondent withdrew approximately $30,000 in 1983 in order to pay an income tax bill of $10,000 and other bills. The remainder of the money, about $14,000, he placed in a certificate of deposit. In a financial statement completed by the respondent for a bank loan, the respondent gave the value of his benefit accounts with Shell as being $270,000.

The respondent corroborated the petitioner’s testimony that they had purchased the home in Ohio and in Illinois during their marriage. In addition to this real estate, the respondent stated that he also owned a one-acre lot in Terre Haute, Indiana, worth $5,000 and 56 acres of farmland in Effingham, Illinois, worth $56,000, both of which he had purchased before his marriage to the petitioner. In addition, he was currently negotiating the purchase of over 132 acres of farmland across the road from the 56 acres he already owned. A residence was also on this land. To purchase the land, the respondent had withdrawn the $14,000 certificate of deposit and had applied to withdraw $9,000 from the Provident Fund to make the down payment. He stated he intends to sell the marital home in Edgewood and move into the residence on the land.

The respondent testified that he has two bank accounts, the “farm account” at the Effingham State Bank wherein he places the farm income, and a joint bank account with the petitioner at First National Bank. The respondent deposited his paychecks into the joint account, and sometimes, he deposited small farm checks there as well. The respondent did not think the “farm account” was a joint account, but he admitted that money was withdrawn from that account for family use. The “farm account” had a balance of approximately $3,000, and the joint account had a balance of about $150. The respondent admitted that his parents had given him and the petitioner $2,500, and that he had withdrawn this amount from their account.

The respondent stated that he had owned certain farm equipment before his marriage to the petitioner; however, some of the farm equipment was also purchased during the marriage. Additionally, the respondent owned several vehicles when the parties married, and a few vehicles were acquired during the marriage. The respondent further stated that he had three life insurance policies on his life, a policy with a face value of $1,000 with Royal Neighbor bought by his parents at his birth; a policy with a face value of $5,000 or $6,000 with Kansas City Life which was purchased in 1956; and a policy with a value of $30,000 (approximately his yearly income) with Shell.

The respondent testified that, under a temporary order for maintenance entered by the court, he had been paying the mortgage payments, the utilities, and the house insurance on the marital home in Ohio. The monthly mortgage payment on the residence was $227 a month. The respondent stated that, other than the petitioner, there was no one dependent upon him for support.

In addition to the parties’ testimony, a stipulation was admitted into evidence. The stipulation established that the fair market value of the marital home in Ohio was $25,000, with a mortgage of $20,451; that the fair market value of the home in Edgewood, Illinois, was $25,000, with a mortgage of $19,364; that the one acre of land in Terre Haute, Indiana, and the 56 acres of land in Effingham County had fair market values respectively of $5,000 and $56,000 and were the non-marital property of the respondent; that the total fair market value of the 132 acres of farmland and the 4.4 acres of land containing a residence which the respondent had contracted to buy was $153,600, the down payment of which was from the $14,000 certificate of deposit and $9,000 from the Provident Fund; that the value of the household goods and furnishings acquired by the parties during the marriage was $2,500, $2,400 of which was in the possession of the respondent and $100 of which was in the possession of the petitioner; that the value of the farm equipment acquired during the marriage was $15,000, and the value of the farm equipment owned by the respondent prior to the marriage was $10,000; that the parties acquired four vehicles during the marriage worth a total value of $1,100, while the value of the vehicles acquired by the respondent prior to the marriage was $1,400; that the parties’ joint tax refund from 1982 in the amount of $4,155.61 was being held in trust by a law firm, and that the parties had also received a 1984 tax refund of $1,507.50 which had been returned to the Internal Revenue Service by the respondent; and that the respondent had used the joint gift of $2,500 given to the parties by the respondent’s parents for his own needs.

At the close of the hearing, the case was left open for the parties to submit documentation, on the value of the respondent’s employment benefits and for the submission of written final arguments. The petitioner subsequently submitted a brief containing her arguments and memorandum of law to the court on February 10, 1989, but the respondent failed to submit a written argument. Documents regarding the respondent’s employment benefits were also submitted, but these documents did not clearly set forth the value of the respondent’s benefits. The court entered an order dissolving the marriage on March 19, 1987, and eventually entered its order on the division of property on November 22,1989.

In the court’s order of November 22, 1989, the court distributed the parties’ property as follows: To the petitioner the court awarded the home in Ohio, subject to the debts thereon (fair market value of $25,000); the household goods in her possession ($100); the cash value of one half of the farm equipment purchased during the marriage ($7,500); one half of the 1982 tax refund of $4,155.61 ($2,077.80); one half of the bank accounts ($1,575); 50% of the value of the portion of the various employment benefits (the pension plan, the stock ownership plan, and the Provident Fund) accrued by the respondent from May 31, 1973, until May 22, 1986; the life insurance policies were awarded to the party whose life was covered in the policy; each party was awarded the motor vehicles in their possession; and the petitioner was also held responsible for debts accrued by her since her separation from the respondent. Additionally, the court determined that the respondent had withdrawn funds from bank accounts and certificates of deposit which were properly marital property, and, therefore, in lieu of maintenance and as a setoff of the amounts withdrawn, the court awarded the petitioner a lump sum of $10,000 to be paid by the respondent in monthly payments of $500 per month. The court also ordered the respondent to pay $2,000 of the petitioner’s attorney fees.

As noted previously, the respondent filed a motion to vacate judgments, to reopen proofs, and for a rehearing on December 22, 1989. In his motion, the respondent alleged (1) that he paid the petitioner substantial sums both prior and subsequent to the hearing on May 22, 1986 (approximately $32,000), and that the court failed to consider these payments when making its distribution of property, and (2) that the distribution of the marital property by the court was contrary to law and the evidence. The court denied this motion, and the respondent appeals.

The first issue on appeal raised by the respondent is that the court erred in awarding the petitioner a portion of his employment benefits that were accrued after the hearing on grounds and the order for temporary maintenance entered on August 16, 1983. The thrust of the respondent’s argument is that the parties were separated at the time the temporary maintenance order was entered, and that their de facto separation met the criteria of a legal separation at that time. The respondent urges this court to equate a defacto separation with a legal separation and to find that the employment benefits accrued after the temporary maintenance order are nonmarital property under section 503(a)(3) of the Illinois Marriage and Dissolution of Marriage Act. Ill. Rev. Stat. 1989, ch. 40, par. 503(a)(3).

A similar argument was made in In re Marriage of Brooks (1985), 138 Ill. App. 3d 252, 486 N.E.2d 267. The court in Brooks stated that under the statute, property acquired during the marriage and before the date of dissolution is presumed to be marital property (Ill. Rev. Stat. 1989, ch. 40, pars. 503(a),(b)), and that the burden is upon the party seeking to rebut this presumption to do so by clear evidence that the property is statutorily exempted. (In re Marriage of Brooks, 138 Ill. App. 3d 252, 486 N.E.2d 267.) The court in Brooks refused to find that property acquired after the parties had separated but before the marriage was legally dissolved was nonmarital property, because to do so would be to create “common law divorce.” We agree with the reasoning in Brooks and find that the portion of the respondent’s employment benefits accrued after the parties’ separation and prior to the dissolution of the marriage was marital property and that the court properly awarded the petitioner a portion of this asset.

The respondent’s next contention is that the court abused its discretion in awarding the petitioner 50% of his employment benefits accrued during the marriage. In support of his argument, the respondent contends that the court abused its discretion as it failed to take into consideration that the petitioner did not contribute as a homemaker after their separation and that she made no monetary contribution to this asset.

In our consideration of this issue, we initially note that the respondent does not contest the classification of this asset as marital property, which it was correctly determined to be (In re Marriage of Benz (1988), 165 Ill. App. 3d 273, 518 N.E.2d 1316), and he does not object to the valuation of this asset. Further, the respondent does not argue that the overall distribution of the marital property was an abuse of discretion, but he objects only to the division of this particular asset. The fairness of the distribution of marital assets cannot be dealt with on a piecemeal basis, as the respondent would have this court do here, but the distribution as a whole must be considered to determine if the distribution of the assets was made in just proportions as required by the statute. Ill. Rev. Stat. 1989, ch. 40, par. 503(d).

A circuit court has broad discretion in distributing marital property, and, absent an abuse of discretion, the court’s distribution will not be overturned upon review. (In re Marriage of Benz, 165 Ill. App. 3d 273, 518 N.E.2d 1316.) Whether an apportionment was just depends on whether it was equitable in nature, and equitableness does not dictate that the division must be equal; however, an award splitting the property into equal halves will not be overturned on that basis alone. In re Marriage of Benz, 165 Ill. App. 3d 273, 518 N.E.2d 1316.

In distributing marital assets in just proportions, the statute provides 11 criteria for a court to consider in making its determination. (Ill. Rev. Stat. 1989, ch. 40, par. 503(d).) Of the criteria enumerated in the statute, those pertinent to this case are: the contribution or dissipation of each party in the acquisition, preservation, or appreciation of the marital and the nonmarital assets, including the contribution of a spouse as a homemaker; the value of the property awarded to each; the duration of the marriage; the economic circumstances of each spouse; the age, health, occupation, amount and sources of income, vocational skills, employability, liabilities, and needs of each of the parties; whether the apportionment is in lieu of maintenance; and the reasonable opportunity of each spouse for future acquisition of assets and income. The evidence in the instant case established that the petitioner was 59 years of age, close to retirement age; that she had an eighth-grade education and no occupational training; that she had not worked the majority of the time she was married to the respondent, but that she instead worked as a homemaker for approximately 10 years; that the parties were married about 13 years; that the petitioner was unemployed and her only income was through general relief; that the petitioner’s health prevented her from working; that the petitioner had no other property other than that acquired during her marriage to the respondent; and that the petitioner had no reasonable opportunity for acquiring assets or income in the future. In contrast, the respondent was employed and earned $30,000 to $45,000 annually (depending upon the overtime worked and the bonuses awarded); he had nonmarital farmland from which he received rental income; and he had substantial investments in his employment benefits, some of which were obtained during the marriage.

The court, in its distribution of assets, awarded the petitioner approximately $36,252.80 in marital assets, plus $10,000 as a setoff for the marital assets dissipated by the respondent and 50% of the respondent’s employment benefits accrued during the parties’ marriage. The court awarded the respondent an equal share of the marital assets, plus all of his employment benefits (minus the 50% of the benefits accrued during the marriage), and his nonmarital income-producing assets worth $61,000. In addition, the court was aware that the respondent was negotiating the purchase of over 132 acres of income-producing farmland at the time of the hearing. Under these circumstances, the court’s distribution was in just proportions, including the award of 50% of the respondent’s employment benefits acquired during the marriage, and the court’s distribution was not an abuse of discretion.

The last issue raised by the respondent is that the circuit court abused its discretion in denying his post-trial motion to vacate the judgment, to reopen proofs, and for a rehearing. The respondent argues that the court’s denial of his motion prevented him from presenting evidence of the payments made by him to the petitioner under the temporary order for maintenance both before and after the hearing held on May 22, 1986, thereby causing him a great injustice. The respondent contends that he was entitled to a setoff for these payments in the distribution of the marital property.

The test for whether a court abused its discretion in denying a post-trial motion is “ ‘whether the refusal violates the moving party’s right to fundamental justice and manifests an improper application of discretion.’ ” (Harris v. Harris (1977), 45 Ill. App. 3d 820, 821, 360 N.E.2d 113, 115, quoting Anderson v. Anderson (1975), 28 Ill. App. 3d 1029, 1034, 329 N.E.2d 523, 527.) In seeking to vacate a judgment and to reopen proofs, the purpose of the motion is to alert the court that errors have been made and to provide an opportunity for their correction. (In re Marriage of Sanborn (1979), 78 Ill. App. 3d 146, 396 N.E.2d 1192.) Additionally, to justify a rehearing based upon new evidence, a showing of due diligence and a demonstration that justice has not been done must be made. In re Marriage of Sanborn, 78 Ill. App. 3d 146, 396 N.E.2d 1192.

Here, the respondent has not shown that the alleged new evidence he wanted to present, i.e., the payments of temporary maintenance, was not considered by the court in its decision, and he has not shown that this evidence could not have been presented prior to the court’s order distributing the marital property with due diligence on his part. The court, at the hearing on the post-trial motion, expressly stated that it had considered the payments made by the respondent for the temporary maintenance when it allocated the marital assets to the parties. Thus, it is apparent, contrary to the respondent’s argument, that the court did consider these matters. Further, as to the payments made following the hearing of May 22, 1986, the respondent was given an opportunity to file a written final argument in which he could have raised the matter of the subsequent support payments and his right to a setoff. The respondent failed to file such a document. Therefore, it cannot be said that the respondent exercised due diligence in bringing this matter to the court’s attention when he had an opportunity to do so. We find that the court did not abuse its discretion in denying the respondent’s post-trial motion.

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

Affirmed.

HOWERTON and CHAPMAN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE WELCH

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ALLEN R. GODWIN, Defendant-Appellant.
    Fifth District
    No. 5—89—0133
    Opinion filed May 2, 1991.

      Daniel M. Kirwan, of State Appellate Defender’s Office, of Mt. Vernon, and Lori L. Mosby, of State Appellate Defender’s Office, of Springfield, for appellant.
    Charles Grace, State’s Attorney, of Murphysboro (Kenneth R. Boyle, Stephen E. Norris, and Philip B. Alfeld, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE WELCH

delivered the opinion of the court:

Defendant, Allen R. Godwin, appeals from a judgment of the circuit court of Jackson County finding him guilty of felony deceptive practices. (Ill. Rev. Stat. 1987, ch. 38, par. 17—l(B)(d).) Defendant was sentenced to five years’ imprisonment to be served consecutively to a sentence he is currently serving. In this cause, defendant raises the following issues: (1) whether the sentence must be vacated because he was previously convicted of deceptive practices based on transactions occurring within the same 90-day period, and (2) whether the court was authorized to impose an extended-term sentence.

Defendant was charged with theft and felony deceptive practices in Washington County on December 12, 1986. While these charges were pending, Jackson County was investigating similar charges alleged to have occurred on December 6-9,1986.

On February 20, 1987, defendant pleaded guilty to felony deceptive practices in Washington County and was sentenced to three years’ imprisonment. That conviction is not the subject of this appeal.

On May 10, 1988, defendant was charged in Jackson County with deceptive practices based upon bad checks passed in December 1986. Defendant was convicted of felony deceptive practices in Jackson County on September 15, 1988, after a bench trial. On December 19, 1988, he was sentenced to five years’ imprisonment to be served consecutively to his current sentence.

Defendant’s first argument on appeal is that his Jackson County conviction must be vacated because it was based on transactions occurring within the same 90-day time period as those on which his Washington County conviction was based. Defendant argues that section 17 — 1(B) of the Criminal Code of 1961 requires that, in a prosecution for deceptive practices involving separate transactions totaling more than $150 in a 90-day period, such separate transactions shall be alleged in a single charge and prosecuted in a single action.

Defendant’s argument presents an interesting question for our review, as the two prosecutions were brought in different counties, by different prosecutors acting independently of each other. Such a situation has not arisen before under the statute. However, we derive some guidance from three cases which discuss this provision of the Criminal Code under somewhat similar circumstances.

In People v. Jones (1986), 149 Ill. App. 3d 275, 500 N.E.2d 45, defendant was charged with three counts of deceptive practices, each for several transactions aggregating over $150. Defendant had written a total of 48 bad checks between July 22 and September 26, 1984. On appeal, defendant argued that two of his three convictions must be reversed because he wrote all of the bad checks within one 90-day period and the deceptive practices statute mandates a single felony prosecution and sentence. The Third District of the Appellate Court found no error in the State’s bringing three separate charges and prosecutions against the defendant. The court’s reasoning, which we find persuasive, was as follows:

“The obvious intent of the legislature in enacting section 17— l(B)(e) was to allow the State to punish a defendant as a felon if he was convicted of writing bad checks totaling more than $150. The legislature also intended to prevent the State from unfairly aggregating felony charges by arbitrarily subdividing a set of bad-check offenses into as many groups totaling greater than $150 as possible. The legislature’s intent was carried out in this case.
The State did not attempt to aggregate the charges against the defendant by arbitrarily dividing up the group of offenses. [To the contrary,] [t]he State merely filed each charge promptly after each distinct group of the defendant’s transgressions became apparent. No unfair or arbitrary grouping or aggregation of charges occurred here.” (Jones, 149 Ill. App. 3d at 276-77, 500 N.E.2d at 46.)

As we have already stated, we find this reasoning applicable to and persuasive in the case at bar. Defendant argues, however, that the instant case is distinguishable from Jones because, in the instant case, the prosecutor substantially delayed in filing charges. Defendant urges .us to follow two other cases in which different results were reached.

In People v. Bratcher (1986), 149 Ill. App. 3d 425, 500 N.E.2d 954, defendant was charged with seven counts of deceptive practices based on seven bad checks he had written in a single day. Defendant was charged with seven Class 4 felonies because, the State. alleged, the seven bad checks totaled $202.77. On appeal, we held that the language of section 17 — 1(B) clearly requires that this prosecution be brought in a single charge.

We stand by our decision in Bratcher, for we find it to be distinguishable from Jones. In Bratcher, unlike in Jones, the prosecutor brought separate charges in order to maximize the defendant’s penalty. It was this type of abuse which the statute was intended to prohibit.

In People v. Burke (1987), 164 Ill. App. 3d 468, 517 N.E.2d 1191, defendant was convicted of six counts of deceptive practices based upon delivery of six bad checks between March 1 and March 26, 1985. None of the checks was for more than $150, but together they totaled $329.94. All the convictions were for Class 4 felonies. The Second District of the Appellate Court held that under section 17—1(B), defendant should have been charged with a single count of felony deceptive practice. The court distinguished Jones, where the prosecutor filed each charge promptly after each distinct group of defendant’s transgressions became apparent.

We find the instant case to be similar to Jones, and find its reasoning persuasive. The intent of the statute was to prevent a prosecutor from arbitrarily or intentionally aggregating transactions so as to increase a defendant’s culpability and penalty. In the instant case, the two series of transactions took place in separate counties, where separate prosecutions were appropriate. The two prosecutors did not arbitrarily divide the charges, nor did they arbitrarily divide the chore of prosecution. Separate State’s Attorneys in separate counties filed charges for separate series of bad checks. Indeed, to follow defendant’s reasoning would prohibit any prosecution for the Jackson County offense, for the venue provision of the Criminal Code of 1961 provides that prosecutions must be brought in the county in which the offense was committed. (Ill. Rev. Stat. 1989, ch. 38, par. 1—6. See People v. Eaton (1990), 207 Ill. App. 3d 182, 565 N.E.2d 733.) Under such a scenario, a defendant could write bad checks totaling $150 in one county, subjecting himself to prosecution, then cross the county line the next day and write an infinite number of bad checks knowing that he could never be prosecuted therefor. Certainly, the legislature did not intend such a result.

Defendant argues, however, that the Jackson County prosecutor’s delay in bringing charges distinguishes this case from Jones. We might be persuaded by defendant’s argument in this regard were there a basis to find that the prosecutor delayed in bringing charges for the purpose of circumventing the statute. That is, if we found that the prosecutor intentionally delayed in bringing charges so that he could bring more than one prosecution for a series of checks written in a 90-day period, we might agree with defendant. However, this is not such a case. The prosecutor explained that the delay in bringing charges was due to an administrative oversight in the State’s Attorney’s office.

Defendant also argues that to allow multiple prosecutions here would give the section an unconstitutional interpretation. Defendant argues that such an interpretation of the statute establishes arbitrary classifications in violation of the equal protection clause because a defendant who passes bad checks in only one county is liable for only one offense, while a defendant who passes bad checks in different counties may be liable for multiple offenses. We see no equal protection problem here. Neither the fourteenth amendment to the United States Constitution nor the Illinois Constitution prohibits legislative classifications reasonably calculated to promote or serve the public health, safety, welfare or morals. (City of Chicago v. Vokes (1963), 28 Ill. 2d 475, 479, 193 N.E.2d 40, 43.) Such classifications are deemed unconstitutional and invalidated only when they are arbitrary, unreasonable and unrelated to the public purpose sought to be attained, or when, although reasonably designed to promote the public interest, they effect classifications which have no reasonable basis and are therefore arbitrary. (Vokes, 28 Ill. 2d at 479, 193 N.E.2d at 44.) A classification which has some reasonable basis is not unconstitutional merely because in practice it results in some inequality. (Vokes, 28 Ill. 2d at 480, 193 N.E.2d at 44.) We think any classification created by our interpretation of section 17 — 1(B) is reasonably designed to promote the public interest and is neither arbitrary nor unreasonable. For the foregoing reasons, we affirm the defendant’s Jackson County conviction for deceptive practices.

We turn now to defendant’s second argument: that the trial court was not authorized to impose an extended-term sentence on defendant for a misdemeanor offense which was “enhanced” to a felony. Section 17 — 1(B) provides that a person convicted of deceptive practices when the value of the property so obtained is less that $150 is guilty of a Class A misdemeanor. When the value of the property obtained either in a single transaction or in separate transactions within a 90-day period exceeds $150, the offense is a Class 4 felony. Defendant argues that deceptive practices is actually a misdemeanor which, in some cases, is enhanced to a felony. Defendant argues that because an extended-term sentence is not permitted for a misdemeanor, and because defendant committed a misdemeanor which was enhanced to a felony only because of multiple instances of criminal conduct, the extended-term sentence must be vacated.

We point out for the sake of clarity that defendant was sentenced to an extended-term sentence based upon his prior convictions for felony deceptive practices. Defendant’s offense of deceptive practices was “enhanced” to a felony not because of his prior convictions, but because the value of the property obtained exceeded $150.

In support of his argument, defendant relies on People v. Hobbs (1981) , 86 Ill. 2d 242, 427 N.E.2d 558, and its progeny (People v. Nolly (1985), 134 Ill. App. 3d 865, 480 N.E.2d 1373; People v. Grayson (1983), 119 Ill. App. 3d 252, 456 N.E.2d 664; People v. Spearman (1982) , 108 Ill. App. 3d 237, 438 N.E.2d 1320). These cases hold that, where an offense constitutes a felony only by virtue of having been “enhanced” by a prior conviction for the same offense, a defendant may not be sentenced to an extended term of imprisonment based on a prior felony conviction, even where the offense relied on for enhancement is a different offense than that relied on for imposition of an extended term. The Hobbs line of cases holds that, in order to be eligible for an extended term, the conduct for which defendant is being sentenced must constitute a felony in and of itself, without any enhancement.

However, we find the instant case to be distinguishable from the situation presented in Hobbs and its progeny. In the Hobbs line of cases, the offenses for which the defendants were sentenced were enhanced by virtue of prior convictions. In the instant case, the offense constitutes a felony by virtue of the value of the property obtained through the deceptive practice. In such a case, the offense constitutes a felony in and of itself simply by virtue of the doUar value involved and presents a different situation than that involved in Hobbs and its progeny. In the instant case, the crime is deemed more serious because it involves a greater loss to the victim. In the case of enhancement because of a prior conviction, the offense is not deemed more serious, but the perpetrator is subject to a greater penalty because he has made the same mistake twice.

Where an offense constitutes a felony because of the dollar value of the loss and not because it has been enhanced from a misdemeanor, an extended term is authorized by section 5 — 5—3.2(b)(1) of the Unified Code of Corrections (Ill. Rev. Stat. 1987, ch. 38, par. 1005—5—3.2(b)(1)). In the instant case, defendant was eligible for an extended-term sentence by virtue of his 1987 Washington County conviction for felony deceptive practices. The trial court did not err in sentencing defendant to an extended term of imprisonment.

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

Affirmed.

RARICK, P.J., and GOLDENHERSH, J., concur.


author: JUSTICE HOWERTON

text:
    84 LUMBER COMPANY, Plaintiff-Appellant, v. DENNI CONSTRUCTION COMPANY, INC., et al., Defendants-Appellees.
    Fifth District
    No. 5—90—0356
    Opinion filed April 30, 1991.

      Gale P. Stipes, of Mateyka & Hill, P.C., of Granite City, for appellant.
    No brief filed for appellee.
   JUSTICE HOWERTON

delivered the opinion of the court:

Plaintiff sued defendants for breach of contract. In a bench trial, the Madison County circuit court found the corporate defendant liable, but did not find the Laymans, who are the president and secretary of the corporation, personally liable. We reverse and remand with directions to enter judgment against the president and secretary.

Plaintiff sells building materials. One of its salespersons dropped off a credit application at the office of Denni Construction Co., Inc., where Darrell and Deni-Jeanne Layman, the individual defendants, signed the application. The salesperson did not explain the contract terms. Later the salesperson picked up the application and mailed it to 84 Lumber Company’s main office, where the credit application was approved. An account number and subsequent invoices were issued in the corporation’s name. Defendants failed to pay on their account, and plaintiff sued the Laymans individually and sued also their corporation.

At trial, the parties stipulated that the corporation was liable for $10,110.35, plus costs. The circuit court entered judgment against Denni Construction Co., Inc., but not against the officers individually. After reviewing the credit application and testimony, the circuit court found the credit application ambiguous, because the reverse side was left blank, making it unclear if the “applicant” was the corporation or the individual officers. The application is reproduced in the appendix. The circuit court, therefore, allowed the Laymans to testify as to their understanding and intentions about the deal over objections based upon the parol evidence rule.

The threshold issue is whether the credit application is ambiguous. If it is not ambiguous, the circuit court erred in allowing Darrell and Denni-Jeanne Layman to testify to their understanding that they would not be personally liable. If the credit application is ambiguous, then the circuit court properly allowed the Laymans to testify.

A contract is ambiguous if it is capable of being understood in more senses than one or is reasonably susceptible of more than one meaning. (Susmano v. Associated Internists of Chicago, Ltd. (1981), 97 Ill. App. 3d 215, 422 N.E.2d 879.) When the terms of a written contract are certain and unambiguous, extrinsic evidence is inadmissible because the instrument itself is the sole determinant of the parties’ intentions. (Zella Wahnon & Associates v. Bassman (1979), 79 Ill. App. 3d 719, 398 N.E.2d 968.) Where a court determines that an ambiguity exists, extrinsic evidence may be introduced by the parties and considered in ascertaining the true meaning of the contract. Pioneer Trust & Savings Bank v. Lucky Stores, Inc. (1980), 91 Ill. App. 3d 573, 414 N.E.2d 1152.

We find the credit application to be unambiguous. (See appendix.) Although the blanks on the reverse side of the application are not filled in, Darrell G. Layman is named on the “principal” line on the front of the contract. Both Darrell and Denni-Jeanne Layman signed their names in their individual capacities on the “applicant” lines. In addition, the paragraph above their signatures reads: “It is further acknowledged and understood that the Applicant has read both sides of this entire application and Agreement, and the terms and conditions on the reverse side, and that he understands the same ***.” As a condition of the contract, paragraph 6, on the reverse side, states that the “applicant agrees that he will be personaHy responsible.”

Here, the circuit court allowed the Laymans to testify that it was not their intent to personally guarantee the credit, and that the salesman did not explain there would be personal liability imposed by the contract. Because the contract is unambiguous, it was error for the circuit court to have allowed this testimony. Thus, the contract itself is the sole determinant of the parties’ intentions. Here, the Lay-mans signed, not in their corporate capacity, but individually. An officer who signs his name, without more, is individually liable on the contract. (See Zella Wahnon & Associates v. Bassman (1979), 79 Ill. App. 3d 719, 398 N.E.2d 968.) The circuit court erred in refusing to enter judgment against the Laymans and is, therefore, reversed. We remand to the circuit court to enter judgment accordingly.

Reversed and remanded.

WELCH and HARRISON, JJ., concur.


author: JUSTICE HARRISON

text:
      In re APPLICATION OF THE COUNTY COLLECTOR FOR JUDGMENT OF SALE AGAINST LANDS AND LOTS RETURNED DELINQUENT FOR NON-PAYMENT OF GENERAL TAXES FOR THE YEAR 1985 AND PRIOR YEARS (Richard J. Trolard, d/b/a Tax Investment, Petitioner-Appellant, v. Michael Bauer et al., Respondents-Appellees).
    Fifth District
    No. 5—90—0117
    Opinion filed May 2, 1991.

      Stephen R Schrimpf, of Alton, for appellant.
    John J. Johnston, of Ripplinger, Dixon & Johnston, of Belleville, for appellee Michael Bauer.
    Roger S. Murphy, of Belleville, for appellee New Athens Savings & Loan Association.
   JUSTICE HARRISON

delivered the opinion of the court:

Petitioner, Richard J. Trolard, d/b/a Tax Investment, appeals from the judgment of the circuit court of St. Clair County which denied his petition for a tax deed to real estate owned by respondent Michael Bauer and subject to a mortgage held by respondent New Athens Savings and Loan Association. The issue on appeal is whether the real estate was validly redeemed following its sale to petitioner for failure of respondents to pay 1985 real estate taxes.

At the tax sale in April 1987, petitioner purchased the lot owned by respondent Bauer. The redemption cost estimate received by respondent Bauer and dated April 24, 1989, bore the heading “OFFICE OF JANICE D. DELANEY County Clerk, St. Clair Countyf,] Belle-ville, Hlinois 62220,” listed the total cost of redemption at $2,139.83 and further stated:

“This Estimate is Subject To Correction Make Remittance Payable To County Clerk
(PERSONAL CHECKS NOT ACCEPTED)
CASH, MONEY ORDER, CASHIER’S CHECK ONLY”

On May 22, 1989, the instant petition was filed. The extended statutory period for redemption expired on October 20,1989.

On approximately October 16, 1989, respondent Bauer mailed his personal check, post-dated to October 20, 1989, and made payable to “Paul M. Haas County Collector” in the amount of $2,139.83 within an envelope addressed to “Paul M. Haas County Collector.” This payment was received sometime after October 16 by the county treasurer’s office and delivered to the county clerk’s office on October 23, 1989. By written notice dated October 25, 1989, the county clerk advised respondent Bauer, that his payment could not be accepted because the time for redemption had expired and because the amount of payment was insufficient.

Following a hearing on November 8, 1989, and the submission of memoranda by the parties, the trial court, on January 26, 1990, entered its order denying petitioner’s request for a tax deed and finding, inter alia:

“1. Michael Bauer mailed his personal check in the amount of TWO THOUSAND ONE HUNDRED THIRTY-NINE DOLLARS EIGHTY-THREE CENTS ($2,139.83) made payable to ‘Paul M. Haas, County Collector’ to the St. Clair. County Treasurer’s Office on October 16, 1989 and said payment was received in the Treasurer’s Office on October 17,1989.
* * *
4. Bauer had previously paid his real estate taxes on at least one occasion for prior years by personal check to the St. Clair County Treasurer after the due date for the second installment, despite the fact that the tax bills indicate personal checks will not be accepted by the Treasurer for such payments.
* * *
8. Payment, although the amount may have been deficient, was made in a timely fashion since it was mailed prior to expiration of the redemption period.
9. Bauer reasonably expected his personal check for redemption would be accepted and reasonably believed he had satisfactorily redeemed his residence.”

Petitioner argues that section 253 of the Revenue Act (Ill. Rev. Stat. 1989, ch. 120, par. 734) does not authorize a taxpayer to redeem with a personal check. That section states that redemption shall be made “by payment in legal money of the United States, or by cashier’s check, certified check, post office money order or money order issued by a financial institution.” Ill. Rev. Stat. 1989, ch. 120, par. 734.

Payment by personal check alone, however, will not cause a failure of redemption. (In re Application of Williamson County Collector (1984), 128 Ill. App. 3d 408, 409, 470 N.E.2d 1193, 1195.) In In re Application of Williamson County Collector, 128 Ill. App. 3d at 409, 470 N.E.2d at 1195, this court held that acceptance of a personal check by the county clerk and the issuance of a certificate of redemption effected a valid redemption. (See also John Allan Co. v. Sesser Concrete Products Co. (1969), 114 Ill. App. 2d 186, 252 N.E.2d 361; Weiner v. Chicago Title & Trust Co. (1960), 21 Ill. 2d 69, 171 N.E.2d 50.) This court noted, however, that the county clerk was at fault for accepting a personal check contrary to the statutory direction and stated “[t]he entire problem [resulting when defendant’s check was returned dishonored] would have been avoided had the clerk required redemption by one of the methods of payment set out in the statute.” In re Application of Williamson County Collector, 128 Ill. App. 3d at 410, 470 N.E.2d at 1195.

Unlike the county clerk in In re Application of Williamson County Collector, the county clerk in the instant case did not accept payment and issue a certificate of redemption, but immediately returned respondent Bauer’s personal check, citing the insufficiency of its amount and the untimeliness of its receipt. Although no specific objection to the medium of payment was made, Láveme RusseU, chief deputy of the office of the St. Clair County clerk, testified that respondent Bauer’s personal check would not have been accepted even if it had been received within the redemption period and made out for the correct amount, because it was the firm policy of the county clerk never to accept personal checks.

Based on these facts, we find the supreme court’s decision in Weiner v. Eder (1961), 22 Ill. 2d 408, 176 N.E.2d 777, to be controlling. In Eder, the property owner attempted redemption by depositing a personal check with the county clerk one day before the expiration of the redemption period. The Eder court held that redemption had not occurred where the county clerk gave the owner only a conditional receipt for the check and did not post the amount thereof in the redemption records or issue a certificate of redemption until the check had cleared, which was some days after the redemption period had expired. Similarly here, assuming, arguendo, timely receipt of respondent Bauer’s personal check, redemption was not effected where the county clerk refused to accept the check and did not issue a certificate of redemption before the expiration of the redemption period.

Respondents argue that the “government of St. Clair County” should be estopped from refusing to accept a personal check from respondent Bauer where the St. Clair County treasurer’s office had previously accepted respondent Bauer’s personal checks in payment for real estate taxes, in violation of the policy stated on the tax bills. Respondents contend that based on these actions by the treasurer’s office, the trial court correctly found that respondent Bauer “reasonably expected his personal check for redemption would be accepted.” We disagree.

It has been held that a party claiming benefit of an estoppel must prove reasonable reliance on the acts or representations of the party sought to be estopped, without knowledge of or convenient means of learning the true facts. (Burnidge Brothers Almora Heights, Inc. v. Wiese (1986), 142 Ill. App. 3d 486, 494, 491 N.E.2d 841, 848.) Although public bodies are not immune from estoppel, the doctrine is applied much less readily against them than against private persons. The general rule is that a public body will not be estopped unless it has induced reliance by its own affirmative acts. People ex rel. Department of Transportation v. Fansler (1982), 103 Ill. App. 3d 149, 153, 430 N.E.2d 741, 744; Wiese, 142 Ill. App. 3d at 495, 491 N.E.2d at 849.

Respondents fail to meet the general requirements which are necessary to invoke the doctrine of estoppel in the present case. Respondent Bauer did not rely upon any action or representation of the county clerk’s office, but upon actions of the treasurer’s office. The evidence of record is that those two offices are autonomous, and respondents offer no support for their assertion that one office should be legally bound by the actions of the other.

Furthermore, “convenient means of learning the true facts” were readily available to respondent Bauer before the expiration of the redemption period. Respondent Bauer was put on notice of the requirements of section 253 of the Revenue Act by the estimated cost of redemption form issued to him by the county clerk’s office. Additionally, if respondent Bauer had communicated with the county clerk’s office, he would have been informed whether or not payment by personal check was accepted. (Cf. In re Application of Critton (1985), 139 Ill. App. 3d 719, 724, 487 N.E.2d 726, 729-30.) Under these circumstances, respondent Bauer’s reliance cannot be said to be reasonable.

Respondents further argue that the trial court correctly found that the redemption statute should be construed liberally where no injury would result to petitioner, because a tax deed had not yet issued. (See In re Application of County Treasurer (1980), 84 Ill. App. 3d at 506, 509, 405 N.E.2d 869, 871.) However, we have already found that the facts present here do not fit the exception made for payment by personal check in In re Application of Williamson County Collector. Thus, even a liberal construction of the redemption requirements will not avail respondents where a clear statutory violation exists which is not attributable to any reasonable reliance by respondent Bauer.

Redemption is a statutory privilege which must be exercised conformably to the law, and not otherwise. (Weiner v. Jobst (1961), 22 Ill. 2d 11, 17, 174 N.E.2d 561, 564.) Therefore, where respondent Bauer was not in substantial compliance with the statute, he failed to perfect a valid redemption. Given this finding, a determination of the timeliness and sufficiency of respondent Bauer’s payment, other impediments to redemption alleged by petitioner, is unnecessary.

For the foregoing reasons, the judgment of the circuit court of St. Clair County denying the issuance of a tax deed to petitioner is hereby reversed and the cause remanded for further proceedings consistent with this opinion.

Reversed and remanded.

WELCH and HOWERTON, JJ., concur.

      Although the amount of payment, $2,139.83, coincided with the April 24, 1989, cost estimate, it was less than the $3,836.93 required for redemption on October 20, 1989. The increase in the amount required for redemption resulted, in substantial part, from petitioner’s payment of the subsequently accruing 1988 taxes upon the subject real estate and application of those taxes against his existing tax sales certificate on August 3,1989.


author: PRESIDING JUSTICE RARICK

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARK S. BRYANT, Defendant-Appellant.
    Fifth District
    No. 5—89—0824
    Opinion filed May 2, 1991.

      Daniel M. Kirwan and John T. Hildebrand, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Scott Mansfield, State’s Attorney, of Belleville (Kenneth R. Boyle, Stephen E. Norris, and Scott A. Manuel, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE RARICK

delivered the opinion of the court:

Defendant, Mark S. Bryant, was found guilty by a jury of first-degree murder and was sentenced by the circuit court of St. Clair County to 80 years’ imprisonment. Defendant appeals his conviction. We affirm.

Defendant originally was indicted for the murder of James Ever-son and for the criminal sexual assault of M.S.A. in connection with a sordid set of events beginning on the evening of June 3, 1989. According to M.S.A., she and three of her friends drove to East St. Louis that evening to purchase crack cocaine and alcohol. At their first stop, M.S.A. became acquainted with defendant and Everson, neither of whom she had ever met before. M.S.A. decided to leave the drug house with Everson and defendant instead of waiting for her friends. The three got a ride to Everson’s home, where they then sat around consuming alcohol and crack. At some point, defendant decided to purchase more crack and left the house to do so. While he was gone, Everson and M.S.A. engaged in sexual intercourse. Once defendant returned, the three again partook of the drugs and alcohol. This same pattern apparently repeated itself several times that evening. Eventually defendant made known his desires to have sex with M.S.A. M.S.A. apparently was not interested. Once M.S.A. refused him, defendant left the bedroom. After watching M.S.A. and Everson from another room, however, defendant rushed in with a weed cutter and started slashing at Everson. Defendant then grabbed M.S.A., took her out in the hallway and raped her. At some point, Everson began moaning. Defendant got up, went back in the bedroom and again beat Everson repeatedly with the weed cutter. Once finished with Everson, defendant went back to M.S.A. and continued to have sex with her the rest of the night. In the morning defendant took M.S.A. to his brother’s home to change clothes. Defendant and M.S.A. then went to a liquor store to purchase wine to drink while waiting for the bus to go to St. Louis. Defendant apparently wanted M.S.A. to prostitute herself in St. Louis in order to make money to buy them both more drugs. During the ride to St. Louis, defendant and M.S.A. engaged in further sexual activity until told to stop by the bus driver. Once in St. Louis, defendant took M.S.A. to one of his relatives’ residence. There M.S.A. got in a fight with the girlfriend of defendant’s brother. M.S.A. struck the woman in the face with a beer bottle and robbed her of her food stamps. When the police arrived, defendant allegedly put his arms around M.S.A. and told her not to move. M.S.A. did as she was told and did not talk to the police because she believed defendant had a razor blade of some sort. After the police left, defendant escorted M.S.A. to the “stroll” area. When no one accepted M.S.A.’s “services,” she called her family to get a ride back to Illinois. Eventually the son of her brother’s ex-girlfriend drove defendant and M.S.A. back to her home. M.S.A. was met by her brother, who forced her out of the car, yelling at her for leaving her children alone. Defendant and the son then drove away. Later M.S.A. reported the events to a friend who drove her to the hospital. Eventually defendant heard the police were looking for him and decided to turn himself in. Defendant’s version of the story coincided with M.S.A.’s for the most part up to the point of the murder and from the morning after the murder. Defendant denied committing the murder and further stated M.S.A. was a willing participant in all activities. Defendant claimed he left Everson and M.S.A. alone at Ever-son’s house after “partying” with them, once Everson made it known M.S.A. was going to spend the night. Defendant insisted he ran into M.S.A. the next morning at the bus stop and that it was her idea to get more money for drugs by walking the “stroll” in St. Louis. Defendant suggested M.S.A. committed the murder herself to get Everson’s money. The jury chose to believe M.S.A.’s version of the murder but found defendant not guilty of any criminal sexual assault.

Defendant argues on appeal his conviction must be reversed because the evidence fails to remove all reasonable doubt he committed the murder. Defendant in particular points to substantial inconsistencies in M.S.A.’s testimony and to her unreasonable and improbable reactions after the alleged murder. While it is true that when testimony is contrary to the laws of nature or universal human experience, the reviewing court is not bound to believe the witness (see People v. Coulson (1958), 13 Ill. 2d 290, 297, 149 N.E.2d 96, 99), we are also mindful of the oft-repeated statement: it is not our function to retry the defendant (People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, 277). Rather, it is the jury’s responsibility to resolve any factual disputes, to assess the credibility of witnesses, and to determine the sufficiency of the evidence for a verdict of guilty. (See People v. Bradford (1985), 106 Ill. 2d 492, 502, 478 N.E.2d 1341, 1345.) The relevant question then is whether any rational trier of fact, after viewing the evidence in a light most favorable to the prosecution, could have found the essential elements of the crime beyond a reasonable doubt. (Collins, 106 Ill. 2d at 261, 478 N.E.2d at 277; see also People v. Hendricks (1990), 137 Ill. 2d 31, 62, 560 N.E.2d 611, 625.) We believe that standard has been met in this instance. Merely because the jury concluded M.S.A.’s testimony pertaining to the events occurring after the murder was not persuasive does not mean her entire testimony must be discarded as suspect. (See People v. Jones (1988), 174 Ill. App. 3d 737, 745, 528 N.E.2d 1363, 1369.) The jury was well aware of all of the alleged improbabilities and discrepancies in M.S.A.’s testimony as well as of defendant’s arguments and beliefs. Having had the opportunity to observe the witnesses for itself, the jury necessarily was able to reach a more informed judgment as to defendant’s guilt than we possibly can achieve from reading a cold transcript of the proceedings. (See People v. Hernandez (1988), 121 Ill. 2d 293, 319-20, 521 N.E.2d 25, 37; People v. Henderson (1976), 36 Ill. App. 3d 355, 367-68, 344 N.E.2d 239, 249-50.) We therefore cannot say in this instance the evidence is so palpably contrary to the jury’s findings to raise a reasonable doubt as to defendant’s guilt in connection with the murder of James Everson. See Hendricks, 137 Ill. 2d at 65, 560 N.E.2d at 626.

Defendant further argues on appeal he was denied effective assistance of trial counsel when counsel failed to request a mistrial after one witness informed the jury defendant had been responsible for another murder. This witness, one of M.S.A.’s girlfriends, stated in explaining on cross-examination why she did not return to the drug house in which M.S.A. was waiting:

“She [another girlfriend] said that the person that was with us — I was talking real smart and she said the person that was with us will kill you about a two dollar bill; that he just got out of jail for murder and he was on 10 years of paper, so I didn’t re-enter the house.”

Defendant believes “the person that was with us” obviously referred to himself. As such the testimony was inadmissible, serving only to establish his propensity to commit violent acts against others. Defendant points out evidence of collateral crimes, crimes for which a defendant is not on trial, is inadmissible if relevant merely to establish the defendant’s propensity to commit such crimes. (See People v. Romero (1977), 66 Ill. 2d 325, 330, 362 N.E.2d 288, 290; see also Hendricks, 137 Ill. 2d at 52, 560 N.E.2d at 620; People v. Albanese (1984), 104 Ill. 2d 504, 517, 473 N.E.2d 1246, 1251.) Defendant concludes the fact that he would “kill you about a two dollar bill” when he already was on trial for murder therefore could only serve to fatally prejudice the jury against him. In light of M.S.A.’s improbable testimony, defendant believes the witness’ statement necessarily played a major role in his conviction. Consequently, defendant asserts his counsel was ineffective for failing to request a mistrial after such prejudicial evidence was improperly placed before the jury.

In order to establish ineffective assistance of counsel, a defendant must show (1) that counsel committed errors “ ‘so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment,’ ” and (2) that those errors, in fact, were prejudicial to his defense. (Collins, 106 Ill. 2d at 273, 478 N.E.2d at 283 quoting Strickland v. Washington (1984), 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064.) In other words, defendant must show, but for counsel’s unprofessional errors, there is a reasonable probability the outcome would have been different. (Albanese, 104 Ill. 2d at 525, 473 N.E.2d at 1255; see also People v. Young (1983), 115 Ill. App. 3d 455, 466, 450 N.E.2d 947, 957.) Substantial prejudice, however, must be established by more than mere speculation or conjecture as to the outcome of the trial had counsel performed as defendant believes he should have. (Young, 115 Ill. App. 3d at 466, 450 N.E.2d at 957.) We see no instance here of substantial prejudice depriving defendant of a fair trial. While it is true defendant does have a prior conviction for second-degree murder, the jury was not aware of this fact. More importantly, the witness had already mentioned numerous names of other people present in the drug house, both male and female, in recounting her version of the evening. She did not, however, refer to anyone by name in discussing her reasons for not returning to the house. It is mere conjecture to assume the jury concluded the witness was referring specifically to defendant when she stated one of the people present had just gotten out of jail for murder. In reality none of the testimony of any of the witnesses who were present that evening is particularly clear or easy to follow. Moreover, this witness’ testimony pertaining to an earlier murder was never referred to again during the rest of the trial. Under such circumstances, we find it highly unlikely the jury focused on this particular piece of testimony in convicting defendant, especially in light of all the other evidence before it. In all probability the result would have been the same; consequently, defendant was not unduly prejudiced by the witness’ testimony so as to deprive him of a fair trial. We therefore need not determine whether counsel’s performance in failing to request a mistrial constituted ineffective assistance. See Albanese, 104 Ill. 2d at 527, 473 N.E.2d at 1256.

For the aforementioned reasons, we affirm the judgment of the circuit court of St. Clair County.

Affirmed.

WELCH and CHAPMAN, JJ., concur.


author: JUSTICE LEWIS JUSTICE HOWERTON,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. SUSAN EARLEY, Defendant-Appellee.
    Fifth District
    No. 5—88—0659
    Opinion filed April 19, 1991.

      HOWERTON, J., dissenting.
    Kenneth R. Boyle, Stephen E. Norris, and Debra A. Buchman, all of State’s Attorneys Appellate Prosecutor’s Office, of Mt. Vernon, for the People.
    Daniel M. Kirwan and John T. Hildebrand, both of State Appellate Defender’s Office, of Mt. Vernon, for appellee.
   JUSTICE LEWIS

delivered the opinion of the court:

The State appeals the circuit court’s granting of the defendant’s, Susan Earley’s, motion to quash arrest and to suppress evidence. At the hearing on the defendant’s motion, the court considered only the evidence concerning the defendant’s arrest; therefore, the sole issue raised on appeal is whether the circuit court’s determination, that the police had neither reasonable, articulable facts justifying the stop of the defendant nor probable cause to arrest her, was against the manifest weight of the evidence.

The facts presented at the hearing on the defendant’s motion to quash arrest are as follows: Joyce Dillon, the defendant’s sister, testified that the defendant and Frank Dunn came to stay overnight at her home on Wednesday, September 16, 1987. The next day, the defendant and Dunn went to Kentucky and returned to Dillon’s home on Friday, September 18, 1987, while Dillon was at work. The defendant and Dunn spent Friday evening with Dillon at her home; however, at some time during the evening, the defendant and Dunn went to Carbondale, Illinois, to return a video machine. While the two were gone, Dillon searched their luggage.

Dillon explained that her reason for searching the defendant’s and Dunn’s luggage was that she and her family were concerned that the defendant had been using drugs over the past few months. Dillon stated that she herself was a recovered alcoholic, that she had been sober for the past seven years, and that she further did not believe in “narcotics and abuse.” Dillon testified that she was familiar with persons who were in emotional “flux” due to substance abuse through her affiliation with Alcoholics Anonymous. Because of her concerns, Dillon decided to search the defendant’s and Dunn’s luggage for drugs.

Dillon went into the room which the defendant and Dunn were sharing, and she first searched the defendant’s train case or cosmetic bag. She stated she went through each bottle and parcel thoroughly, but she found nothing. Dillon next searched a black carry-on tote bag. Inside this tote bag were men’s socks and underwear, but when Dillon searched the side pocket of this case, she found five or six small, transparent, heat-sealed plastic packages containing a white powder substance. She also found a rolled-up baggage claim ticket with the packages. Dillon believed these packages contained cocaine, for, as she stated, she doubted anyone would heat-seal baby powder inside such packages. Because there were several bags of the substance present, she decided that one would not be missed and removed it from the tote bag. Dillon did not search the remainder of the luggage in the bedroom, as she had found what she was looking for and because she was concerned that the defendant and Dunn would return shortly.

Dillon went into her kitchen and showed her husband what she had found in the tote bag. They discussed what she had found for several minutes, following which Dillon called her mother in California to ask her mother what she should do. Dillon testified that her mother called Dillon’s brother, who was a volunteer at the sheriff’s office in Henry County, Illinois. After her mother had discussed the problem with Dillon’s brother, Dillon’s mother called Dillon and advised her to call the Illinois State Police Headquarters in DuQuoin, Illinois. Dillon called the Illinois State Police somewhere between 9 and 10 p.m. that evening. She told the police that the defendant and Dunn were staying with her and that she had found what she thought was a narcotic in their luggage. The police dispatcher told Dillon that Sergeant Lichliter would meet her at the bank where Dillon worked the next morning.

At approximately 8 a.m. on September 19, 1987, Sergeant Lichliter met Dillon in the bank’s parking lot in Carbondale. She explained to Lichliter that she had not seen her sister using drugs, but she suspected drug use, which prompted her to search her sister’s and Dunn’s luggage. Dillon showed Lichliter the package she had removed from the luggage and gave the bag to Lichliter. Dillon told Lichliter that she had found the substance in the man’s tote bag, and that she had not found anything in the defendant’s train case. She and Lichliter talked at length, for it seemed to Dillon that Lichliter wanted to reassure himself that Dillon’s actions were not motivated by revenge or other iU feelings towards her sister.

Dillon asked Lichliter not to search her home, and she asked that he attempt to stop the defendant and Dunn on the road in the car. Lichliter asked Dillon when the defendant and Dunn would be leaving, but Dillon did not know. Dillon gave Lichliter a description of the defendant’s car, and she admitted that there was a chance that she had given the police the defendant’s license plate number. Lichliter told Dillon that he would contact her again.

After Lichliter left Dillon, at about 9 or 9:30 a.m., Dillon received a telephone call at the bank from Special Agent Ed Thrailkill. She gave Thrailkill the same information she had given Lichliter. Thrailkill asked her if she would sign a consent form to search her home, and he said he would come by the bank and see her.

Following Thrailkill’s telephone call, Dillon’s husband called. He told Dillon that the defendant and Dunn were getting ready to leave and to return to the defendant’s home in Kewanee, Elinois. Dillon’s husband indicated that the defendant and Dunn planned on stopping by the bank at lunch time to see Dillon and to say goodbye. Dillon said her husband was vague because the defendant and Dunn were present, but that he was trying to tell Dillon that they were leaving.

Shortly after talking to her husband on the phone, Thrailkill again called her. Thrailkill told her that the police were watching her home, and he asked her if there was a reason that the defendant and Dunn would leave. Dillon explained to Thrailkill that her husband had called her and told her that the defendant and Dunn were leaving, but that they were meeting her at the bank for lunch. Dillon admitted on cross-examination that she told the police she thought the luggage she had searched was in the defendant’s car.

Dillon met with Thrailkill at the bank just prior to 11 a.m. that morning. He inquired as to where the defendant and Dunn would have gone, but Dillon could not tell him. Thrailkill went to his car and sat for awhile, during which time the defendant and Dunn pulled into the drive-through window of the bank. When the defendant and Dunn did so, Thrailkill pulled his car in front of the defendant’s car and Lichliter blocked the car from behind to prevent them from leaving.

Sergeant Ray Lichliter testified that he had been employed by the Elinois State Police for 271/2 years. On the morning of September 19, 1987, he was dispatched to see Joyce Dillon at a bank in Carbon-dale. He arrived at the bank at approximately 8:40 a.m. Lichliter corroborated Dillon’s testimony regarding her concerns about her sister, her suspicion of drug usage, and her subsequent search of the defendant’s and Dunn’s luggage. Lichliter did not recall Dillon stating that she did not find anything in the defendant’s train case, but he did recall her stating that she had found the packet in the man’s luggage. Lichliter confirmed that Dillon gave him a packet containing a white substance, which he determined from his past experience to be cocaine. Lichliter testified that he had seen cocaine before and that he had attended drug-identification courses given by the Illinois State Police.

After talking with Dillon, Lichliter contacted the police headquarters and talked to the duty sergeant. The duty sergeant contacted Special Agent Thrailkill at the Division of Criminal Investigation (DCI). The duty sergeant also called Master Sergeant Cook. Subsequently, Lichliter talked to Thrailkill by phone, and he advised Thrailkill of his and Dillon’s conversation at the bank. Lichliter told Thrailkill about the evidence he had been given, of his belief that the substance was cocaine, and of the fact that there was more of the substance in Dillon’s home.

Lichliter went to Dillon’s home, where he met Master Sergeant Cook. When they arrived, the defendant’s car was gone. Thereupon, Lichliter contacted Thrailkill through the DuQuoin police headquarters, and Lichliter was told by Thrailkill that the defendant and Dunn had left to return home, but that they might return to Dillon’s home. Lichliter patrolled the area for 30 to 45 minutes, and thereafter, he returned to Carbondale. He arrived at the bank about 11:35 a.m., and shortly after he arrived, the defendant and Dunn pulled into the bank. Lichliter drove his car into the bank’s drive-through lane and blocked the defendant’s car from behind. Lichliter saw Thrailkill pull his car in front of the defendant’s car. Lichliter stated that he knew the car that they had blocked was the defendant’s, as he had been given a description of the car, he had had the license plate number, and he had run a check on the license plate number through DuQuoin prior to the stop. Lichliter admitted that he did not know what was in the defendant’s car at the time of the stop, but that he believed the car contained controlled substances.

Lichliter stated that he asked Dunn for his driver’s license when he first approached the car, but that after that, Thrailkill took over the investigation. Thrailkill told Dunn why the police had stopped the car. Within 10 minutes of the stop, the. defendant’s car was pulled over and out of the lane of traffic, and Lichliter secured the keys to the defendant’s car. The defendant and Dunn stayed within the immediate vicinity of the car. Lichliter heard Thrailkill ask Dunn if he would consent to a search of the car, and Dunn refused, at which time Thrailkill stated that he would obtain a search warrant. According to Lichliter, the defendant and Dunn were free to leave, they were not handcuffed, and they were not told they were under arrest. Lichliter also stated that after the defendant and Dunn were stopped, a field test was conducted upon the substance contained in the plastic package given to him by Dillon, and at 12:15 p.m., the substance was determined to be cocaine.

Edwin Thrailkill testified that he had been an Illinois State Police officer with the Division of Criminal Investigation for over 10 years. Thrailkill was contacted on his “beeper” around 9:30 a.m. on September 19, 1987, and he was told to contact Sergeant Lichliter regarding a drug possession. Thrailkill contacted Lichliter, who informed Thrailkill that the defendant was suspected of possessing cocaine. Lichliter told Thrailkill that the defendant’s sister was the source of his information.

After talking to Lichliter, Thrailkill contacted Master Sergeant Cook. Cook told Thrailkill to go to the bank and get Dillon’s consent to search her home, following which Thrailkill was to meet Cook and Lichliter at Dillon’s residence. Thrailkill met Dillon at the bank at approximately 11 a.m., at which time Dillon told Thrailkill that her husband had called her. Dillon’s husband had informed her that the defendant and Dunn had packed up their suitcases and had left the house, but that they had indicated they were going to come to see her at the bank before they left for the defendant’s home in Kewanee. Dillon also told Thrailkill about her search of the luggage and her discovery of the package that she believed contained cocaine. Thrailkill stated that Lichliter had told him that Dillon had given Lichliter the package, but Lichliter had not told Thrailkill what he thought the package contained. Thrailkill further stated that Dillon gave him a description of the defendant’s car and had given him the car’s license plate number.

At about 11:35 a.m., Thrailkill saw a car matching the description given to him by Dillon arrive at the bank. Dunn was driving and the defendant sat in the passenger seat. His testimony regarding the blocking of the defendant’s car, and his actions and statements when he approached the car corresponded to Lichliter’s testimony, i.e., that he explained to the defendant and Dunn that the police had information that there was a possibility of narcotics in the car, and that he sought Dunn’s permission to search the car. He too testified that the defendant’s car was moved after the defendant and Dunn got out of the car, and that they were asked to stay out of the car. Thrailkill stated that it was at his request that the package in Lichliter’s possession was tested. Thrailkill also stated that the defendant and Dunn were not placed in handcuffs, were not told they were not free to go, and were not told they were under arrest. According to Thrailkill, he told the defendant and Dunn that he would take them to the police department, where they would be more comfortable while they waited for him to obtain a search warrant to search the defendant’s car. At the police station, the defendant and Dunn were not booked, but they were fingerprinted.

Thrailkill testified that Lichliter did not differentiate in whose luggage the package containing cocaine was found. However, Thrailkill recalled that Dillon said she found five or six packages in the man’s luggage. Thrailkill admitted that he did not know for certain if the luggage containing the cocaine was in the defendant’s car; however, he reasonably believed that the suitcases containing the cocaine would be in there, since the defendant and Dunn were leaving for their home.

Based on the foregoing evidence, the circuit court entered a written order on October 19, 1988, in which the court found that, at the time of the stopping of the defendant’s vehicle, the defendant was under arrest. The court further found that the police lacked either sufficient articulable facts to effectuate a stop or probable cause to effectuate an arrest. It is from this order that the State appeals, contending that the court’s determination is against the manifest weight of the evidence. Because of our ensuing disposition of the probable cause issue, it is unnecessary for this court to consider whether the police had specific articulable facts to stop the defendant’s car.

Section 107—2(l)(c) of the Code of Criminal Procedure of 1963 provides that a police officer may make a warrantless arrest where he has “reasonable grounds” to believe that a person is committing or has committed an offense. (Ill. Rev. Stat. 1987, ch. 38, par. 107—2(l)(c).) The term “reasonable grounds,” as it is used in section 107 — 2, has been held to have the same substantive meaning as “probable cause.” (People v. Waddell (1989), 190 Ill. App. 3d 914, 546 N.E.2d 1068.) Thus, to make a warrantless arrest, a police officer must have probable cause to do so. Whether there is sufficient probable cause to arrest rests upon the totality of the circumstances and the facts known to the officers and the court. (Waddell, 190 Ill. App. 3d 914, 546 N.E.2d 1068.) Probable cause is not proof beyond a reasonable doubt, but means only that there is a probability of criminal activity. (Waddell, 190 Ill. App. 3d 914, 546 N.E.2d 1068.) Probable cause is not based upon legal technicalities but is governed by practical and commonsense considerations upon which reasonable and prudent men would act. Waddell, 190 Ill. App. 3d 914, 546 N.E.2d 1068.

In making the determination of whether an officer had probable cause, the officer’s factual knowledge, as well as his prior law enforcement experience, is relevant. (People v. Tisler (1984), 103 Ill. 2d 226, 469 N.E.2d 147.) The facts a police officer relies on need not have been personally observed by him, but may be based upon hearsay, such as may be provided by an informant. (Tisler, 103 Ill. 2d 226, 469 N.E.2d 147.) Where officers are working together in an investigation, the knowledge possessed by each officer is considered the knowledge of all, and even if the knowledge has not been told to the arresting officer, it may be considered by the court in determining if probable cause exists, as long as the information was placed in the record. (People v. Fox (1987), 155 Ill. App. 3d 256, 508 N.E.2d 475.) A court’s finding of probable cause, or lack thereof, will not be overturned on appeal unless it is manifestly erroneous. Fox, 155 Ill. App. 3d 256, 508 N.E.2d 475.

Where the facts a police officer relies upon for probable cause were provided by an informant, the informant’s former reliability must be established or the information must be independently corroborated. (People v. Sain (1984), 122 Ill. App. 3d 646, 461 N.E.2d 1043; People v. Jones (1983), 119 Ill. App. 3d 615, 456 N.E.2d 926.) However, where the informant is a private citizen, the informant’s prior reliability and independent corroboration are unnecessary, and a warrantless arrest based upon the information provided by that informant is justified if there is a fair probability a crime is being or has been committed. (Jones, 119 Ill. App. 3d 615, 456 N.E.2d 926.) A person is presumptively a citizen informant if he has never given information to the police in the past and is not a professional police informant. Jones, 119 Ill. App. 3d 615, 456 N.E.2d 926.

Here, the court held that the defendant was arrested at the time of the stop. It has been held that an arrest occurs at the time the police inform a defendant of a violation, the defendant submits to the police’s control, and it is clear that the police intend to arrest the defendant and the defendant understands that he is being arrested. (People v. Stofer (1989), 180 Ill. App. 3d 158, 534 N.E.2d 1287.) Under certain circumstances, such as where a defendant has never been expressly told he was under arrest or where he has not been told he was free to go, the detention of the defendant has been held to resemble a traditional arrest. (People v. Hardy (1986), 142 Ill. App. 3d 108, 491 N.E.2d 493.) In determining whether a person has been arrested, the reasonableness of an officer’s conduct is not dis-positive, but the circumstances surrounding the incident must also be considered to determine if a reasonable, innocent person would have believed he was under arrest or free to leave. (People v. Reynolds (1983), 94 Ill. 2d 160, 445 N.E.2d 766.) In considering the surrounding circumstances of the stop of the defendant’s car presented here, we agree with the circuit court that the defendant was under arrest at the time her car was stopped. This is so, as a reasonable, innocent person in the defendant’s situation would have believed that he was unable to leave since the defendant did not have access to her car, the defendant was informed at the time of the stop of the police’s belief that narcotics were contained in the car, and the defendant was not told she was free to leave. Thus, the fact that the defendant was not told she was under arrest was not dispositive, for a reasonable person would have believed himself under arrest under these circumstances.

However, we find that the circuit court’s determination that the police lacked probable cause to arrest the defendant was manifestly erroneous. Here, the defendant’s sister, a citizen informant, told the police that she believed the defendant was using narcotics, that she had searched the luggage contained in the room in which the defendant was staying, and that she had found a substance which she believed to be cocaine in the luggage. Dillon had given the police the packet of the narcotic prior to the stop, and Lichliter, through his prior experience with cocaine and through his drug-identification training, reasonably determined that the substance Dillon found in the luggage was cocaine. Dillon told the police that the defendant and Dunn had left her home to return to the defendant’s home, and it was more probable than not that the defendant had placed the luggage containing the cocaine in her car. Dillon had described the defendant’s car to the police and had provided her license plate number, which was corroborated through a check on the defendant’s license plate. These facts possessed by the police prior to the stop provided sufficient probable cause for the police to arrest the defendant for the possession of a controlled substance. As was stated previously, probable cause is not proof beyond a reasonable doubt but is a matter of probabilities, and here, the probabilities were strong that the defendant was committing a criminal offense. Therefore, we reverse the circuit court’s ruling that the police lacked probable cause to arrest the defendant at the time the police stopped the defend-. ant’s car.

For the foregoing reasons, the judgment of the circuit court of Jackson County granting the defendant’s motion to quash arrest is reversed, and this cause is remanded to the circuit court for further proceedings consistent with the ruling of this court.

Reversed and remanded.

WELCH, J., concurs.

JUSTICE HOWERTON,

dissenting:

The sole question in this case is whether the police had probable cause to believe that defendant had committed the crime of illegal possession of cocaine. The facts from which defendant’s possession of cocaine can be inferred are these:

(1) Defendant shared a bedroom with Frank Dunn during a visit to defendant’s sister’s house;
(2) both defendant and Dunn brought luggage — defendant brought a train case; Dunn brought a tote bag;
(3) because defendant’s sister suspected that defendant was abusing drugs, she surreptitiously searched both defendant’s and Dunn’s luggage, finding only her sister’s belongings in the train case and finding only Dunn’s belongings in the tote bag;
(4) defendant’s sister found cocaine only in Dunn’s tote bag;
(5) defendant’s sister told police that she found cocaine in Dunn’s tote bag but none in defendant’s case; and
(6) defendant and Dunn, with their luggage, left the sister’s house in defendant’s car.

This is the sum total of the evidence from which possession can be inferred. The majority states that this evidence justifies a belief that defendant possessed cocaine and that a warrantless arrest was proper. I cannot agree.

Possession is either actual or constructive. (People v. Scott (1987), 152 Ill. App. 3d 868, 505 N.E.2d 42.) A person actually possesses cocaine when it is in that person’s manual custody or when the person knows of its existence and has immediate and exclusive control over it. (People v. Griffin (1990), 194 Ill. App. 3d 286, 550 N.E.2d 1244.) Possession, however, can be imputed to a person or inferred when that person has exclusive control over the premises where the cocaine was found. (People v. Evans (1986), 143 Ill. App. 3d 236, 492 N.E.2d 1036.) This is known as constructive possession. See, e.g., People v. Scott (1987), 152 Ill. App. 3d 868, 505 N.E.2d 42 (where this court sustained a conviction of possession because drugs were found in a dresser drawer shared by both defendant and his girlfriend).

In the case at bar, it is undisputed that defendant did not actually possess the cocaine.

Therefore, the question upon which this case turns is whether the facts support a reasonable inference that the area where the cocaine was found was subject to defendant’s exclusive control. Here, the cocaine was in Dunn’s bag, not defendant’s bag. The only thing defendant did with respect to Dunn’s bag was to drive it around in her car. No evidence exists to imply that she knew that Dunn possessed cocaine, and knowledge is the most critical ingredient to the crime of possession. People v. Truelock (1966), 35 Ill. 2d 189, 220 N.E.2d 187.

In this case, therefore, there were insufficient facts to support an inference that there was probable cause to believe defendant possessed cocaine. In consequence, the circuit court, in my judgment, correctly quashed the arrest.


text:
    HAROLD KOHRS, Ex’r of the Estate of Lolita Kohrs, Deceased, Plaintiff-Appellee, v. EDWARD J. BARTH, Defendant-Appellant.
    Fifth District
    No. 5—90—0387
    Opinion filed May 2, 1991.

      S. Gene Schwarm, of LeFevrey, Zeman, Oldfield & Schwarm Law Group, Ltd., of Vandalia, for appellant.
    Dale F. Choisser, of Burnside, Dees, Johnston & Choisser, of Vandalia, for appellee.
   JUSTICE LEWIS

delivered the opinion of the court:

The defendant, Edward J. Barth, appeals from a judgment entered upon the motion of the plaintiff, Harold Kohrs, for summary-judgment. Acting in his capacity as executor of the estate of Lolita Kohrs, the plaintiff sought specific performance of a contract for the sale of real property executed on March 30, 1979, by the defendant, as buyer, and William Kohrs, the predecessor in interest of Lolita Kohrs, as seller. The defendant presents a single issue for review: whether the trial court properly granted the plaintiff’s motion for summary judgment for specific performance in light of the default provision contained in the contract.

The contract provided for a purchase price of $30,000, of which the buyer had paid $18,871.82 at the time this suit for specific performance was brought on August 18, 1989. With respect to default the contract provides as follows:

“Time is agreed by the parties hereto to be the essence of this contract. Waiver of any default or violation shall not estop or affect the rights of any party as to subsequent violations.
In case of violation of any promise, term or condition herein concerned, the party injured shall give notice to the party in default, in writing, demanding that said default be cured and allowing 30 days from date of mailing by United States mail, with postage prepaid, for such corrective or curative action. If the default is not cured or corrected within said 30 days, this contract shall be void, without further notice and all rights to possession, payment or otherwise existing in the party in default shall cease.
In the event of default by Buyer, Seller shall retain all payments made hereunder as liquidated damages. In addition, upon default by Buyer, said Buyer shall, without further notice, upon demand by Seller, quit and surrender up the premises and shall, in addition, execute and deliver, if requested by Seller, a quit claim deed to Seller for all interest in said premises, and surrender any copy of this contract in Buyer’s possession.”

As an affirmative defense the defendant stated that nowhere in this provision or elsewhere in the contract is it provided that the seller shall have the remedy of specific performance and that in the event of default the seller’s “sole remedy pursuant to the terms of the Contract is surrender of the premises back to the Seller and retention of all payments made under the Contract as liquidated damages.” Stating that the defendant as buyer had paid the seller $18,871.82 and had offered a quitclaim deed to the subject property pursuant to the terms of this provision concerning default, the defendant sought dismissal of the complaint. In reply the plaintiff took the position that, although he admitted that the contract nowhere provides that the seller shall have the remedy of specific performance in the event of default, the seller is “entitled to the remedy of specific performance in the event of default as a matter of law.” At the hearing on the motion, the plaintiff maintained that, despite the language of the contract, the seller has an election of remedies under Illinois law and can, therefore, elect either to “default the contract” and declare a forfeiture or to seek specific performance of the contract.

In its order granting the motion of the plaintiff for summary judgment against the defendant, the trial court ordered that the defendant shall pay the plaintiff “the balance of the purchase price due under said Contract, with interest thereon at the annual rate of 9% from December 14, 1984, to the date of payment. The per diem rate of interest is $2.74. The total balance due from Defendant to Plaintiff as of May 18, 1990, is $16,556.12.” Upon tender and delivery of payment by the defendant, the plaintiff is, pursuant to the judgment, to execute and deliver to the defendant a conveyance in fee of all of the plaintiff’s interest in the property in question.

Where a contract for the sale of real estate has been entered into without misunderstanding on the part of the buyer and without misrepresentation on the part of the seller, specific performance will be granted as a matter of right, and the fact that such a contract provides for liquidated damages in case of failure to perform does not of itself prevent a court from decreeing specific performance. (Rootberg v. Richard J. Brown Associates (1973), 14 Ill. App. 3d 301, 302 N.E.2d 467.) The test is whether the contract calls for a certain act to be done with a sum annexed as damages to secure performance of the act or whether it provides that one of two things shall be done at the election of the party who must perform, i.e., either the performance of the act or the payment of a sum of money. (Rootberg, 14 Ill. App. 3d 301, 302 N.E.2d 467.) If the contract does the former, provision for liquidated damages will not prevent specific performance; if the contract does the latter, the payment of the agreed sum will constitute adequate performance of the contract. (Rootberg, 14 Ill. App. 3d 301, 302 N.E.2d 467.) That is to say, where the contract stipulates for one of two things in the alternative, the doing of certain acts or the payment of a certain amount of money in lieu thereof, equity will not interfere to decree a specific performance of the first alternative but will leave the injured party to his remedy of damages at law. (Koch v. Streuter (1905), 218 Ill. 546, 75 N.E. 1049.) The mere fact that a contract stipulates for the payment of liquidated damages, in case of failure to perform, does not prevent a court of equity from decreeing specific performance; it is only where the contract stipulates for one of two things in the alternative, the performance of certain acts or the payment of a certain amount of money in lieu thereof, that equity will not decree a specific performance of the first alternative. Lyman v. Gedney (1885), 114 Ill. 388, 29 N.E. 282.

In the instant case, the contract is not alternative in its nature (see Koch, 218 Ill. 546, 75 N.E. 1049; cf. Davis v. Isenstein (1913), 257 Ill. 260, 100 N.E. 940 (specific performance of the contract could not be enforced because, by the contract as construed by the court, either party had the option to pay a penalty instead of complying with the other terms of the contract)). It does not give to the buyer the option to do the act or to pay a certain sum but, instead, calls for a certain act to be done with a sum annexed as damages to secure performance of the act. Hence, the provision for liquidated damages does not prevent specific performance. Thus, the trial court did not err in granting plaintiff’s motion for summary judgment for specific performance.

Affirmed.

CHAPMAN and HOWERTON, JJ., concur.