text:
      In re MARRIAGE OF PAULA KRAMER, Petitioner-Appellant, and RONALD J. KRAMER, Respondent-Appellee.
    Fourth District
    No. 4—91—0544
    Opinion filed March 19, 1992.

      Thomas M. Goodwin, of Dougherty, Hofmann & Goodwin, P.C., of Dan-ville, for appellant.
    Randall Ray, of Sebat, Swanson, Banks, Garman & Townsley, of Dan-ville, for appellee.
   JUSTICE LUND

delivered the opinion of the court:

This is an appeal from an order of the circuit court of Vermilion County denying registration of a foreign judgment for arrearage in child support. Defendant was served with the South Dakota petition and process in Illinois, but no pleading was filed in response. The South Dakota court entered a default judgment in the amount of $45,683.23, of which roughly $34,000 represented interest and penalties under South Dakota statute. Jurisdiction over the Illinois defendant was based on a South Dakota long-arm statute, which provides personal jurisdiction over any person who fails to support his minor child residing within the State. The Vermilion County circuit court refused to recognize South Dakota’s jurisdiction over the Illinois defendant, holding that defendant lacked sufficient minimum contacts with the State of South Dakota to support the exercise of personal jurisdiction.

The parties were married in South Dakota on January 21, 1971, and lived there until shortly after the birth of their child in June of the same year. In October 1972 they moved to California, where they lived until their separation in August 1973. Petitioner then moved to Nebraska and was granted a decree of divorce there in January 1974. The decree ordered respondent to pay $100 per month in child support until the child either married, became 19 years of age, or became self-supporting.

In 1974, petitioner brought an action in the Nebraska courts under the Revised Uniform Reciprocal Enforcement of Support Act (see Neb. Rev. Stat. §§42 — 762 through 42 — 7,104 (1988)), to compel performance under the divorce decree in California where respondent Ronald Kramer was still living. The California responding court reduced support payments to $50 per month and changed the duration of payments to when the child attained 18 years of age. Respondent was ordered to make payments directly to the Sacramento County district attorney’s office. Although respondent fully complied with this order, the original Nebraska support decree was never modified to reflect the reduction in child support.

The record does not specify the date petitioner Paula Kramer returned to South Dakota, but there is documentation that she resided there as of December 1983. Respondent never directed or encouraged petitioner to move there, nor has he ever returned to South Dakota since leaving in 1972. Over the years, respondent exchanged personal correspondence with his daughter and, on one occasion, arranged for her to visit him in Illinois for one week.

On September 24, 1990, over one year after the child attained majority, petitioner filed her action for the unpaid portion of child-support payments under the original Nebraska support decree. Respondent filed no appeal from the resulting default judgment. A petition was filed on April 16, 1991, in the Fifth Judicial Circuit of Illinois for registration of the foreign judgment under section 12 — 603 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1989, ch. 110, par. 12—603). Respondent opposed registration of the foreign judgment on the basis that the South Dakota court had lacked personal jurisdiction, and the trial court agreed.

The conclusiveness of a foreign judgment is governed by section 12 — 621(a) of the Code, which reads, in relevant part:

“Inconclusiveness of Judgments, (a) A foreign judgment is not conclusive if
* * *
(2) the foreign court did not have personal jurisdiction over the defendant.” Ill. Rev. Stat. 1989, ch. 110, par. 12—621(a)(2).

“Section 37 of the Restatement (Second) of Conflicts of Laws (1971) provides that a State may exercise jurisdiction over a person ‘who causes effects in the state by an act done elsewhere,’ *** ‘unless the nature of the effects and of the individual’s relationship to the state make the exercise of such jurisdiction unreasonable.’ ” (Boyer v. Boyer (1978), 73 Ill. 2d 331, 335, 383 N.E.2d 223, 224, quoting Restatement (Second) of Conflicts of Laws §37 (1971).) This element of reasonableness must be reviewed in light of the United States Supreme Court’s decision in International Shoe Co. v. Washington (1945), 326 U.S. 310, 90 L. Ed. 95, 66 S. Ct. 154, which requires that a nonresident defendant have certain minimum contacts with the State attempting to assert jurisdiction so that the action does not offend traditional notions of fair play and substantial justice. These restrictions on State jurisdiction over nonresidents “are more than a guarantee of immunity from inconvenience or distant litigation (the fairness and reasonableness criteria); they are a consequence of territorial limitation on the power of the respective States.” (Boyer, 73 Ill. 2d at 337, 383 N.E.2d at 225; also see Hanson v. Denckla (1958), 357 U.S. 235, 2 L. Ed. 2d 1283, 78 S. Ct. 1228.) “[I]t is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.” Hanson, 357 U.S. at 253, 2 L. Ed. 2d at 1298, 78 S. Ct. at 1240.

The Supreme Court considered a similar case in Kulko v. Superior Court (1978), 436 U.S. 84, 56 L. Ed. 2d 132, 98 S. Ct. 1690. In Kulko, the parties were married in California while defendant father was on a three-day stopover en route to military service. Both husband and wife were residents of New York. Following the marriage the wife returned to New York, as did the husband after returning from military service. Two children were born in New York. A subsequent divorce decree executed in New York provided the father with custody of the children during the school year and custody with the mother in California during vacation. The agreement also provided for child support. Later, one child expressed a desire to live with her mother and the father bought her a one-way plane ticket to California. Later still, the other child informed the mother of his desire to live with her in California and the mother sent him a plane ticket.

In a suit brought in California to modify the New York divorce decree, the Supreme Court held that California could not exercise jurisdiction over the nonresident father. By sending the one daughter to California, defendant had not “ ‘purposely availed himself’ of the ‘benefits and protections’ of California’s laws.” (Kulko, 436 U.S. at 94, 56 L. Ed. 2d at 143, 98 S. Ct. at 1698; Shaffer v. Heitner (1977), 433 U.S. 186, 53 L. Ed. 2d 683, 97 S. Ct. 2569.) The Court held:

“It cannot be disputed that California has substantial interests in protecting resident children and in facilitating child-support actions on behalf of those children. But these interests simply do not make California a ‘fair forum,’ Shaffer v. Heitner, [433 U.S.] at 215, [53 L. Ed. 2d at 704, 97 S. Ct. at 2585,] in which to require appellant, who derives no personal or commercial benefit from his child’s presence in California and who lacks any other relevant contact with the State, either to defend a child-support suit or to suffer liability by default.” Kulko, 436 U.S. at 100-01, 56 L. Ed. 2d at 146-47, 98 S. Ct. at 1701.

Similar to Kulko, respondent in the present case has had few contacts with South Dakota. He was married in South Dakota and his child was born there, but he left the State nearly 18 years ago and has never returned. His wife, a resident of California at the time of separation and Nebraska at the time of divorce, moved back to South Dakota without encouragement or direction from respondent. His sole contact with the State in the intervening years has been occasional correspondence with his daughter, which on one occasion resulted in sending her a plane ticket so that she could visit him in Illinois.

Petitioner argues that unlike the case at hand, the Kulko decision had no long-arm statute upon which to base the jurisdictional claim. Petitioner asserts that the South Dakota long-arm statute is purposely designed to overcome this obstacle by establishing an ascertainable minimum contact for jursidictional purposes. In support, petitioner offers the Illinois long-arm statute as proof that nonsupport of minor children in a forum State is recognized in Illinois as a basis for the exercise of jurisdiction.

We disagree. Illinois has followed Kulko in two supreme court decisions: Boyer (73 Ill. 2d at 340, 383 N.E.2d at 226) and People ex rel. Mangold v. Flieger (1985), 106 Ill. 2d 546, 550, 478 N.E.2d 1366, 1367. In each case, a resident mother argued that the nonresident father’s failure to pay child support pursuant to a divorce decree constituted the commission of a tortious act within the meaning of the Illinois long-arm statute. In both cases, the courts declined to rule on the long-arm issue because they found the nonresident defendant lacked sufficient minimum contacts with Illinois to make the exercise of jurisdiction over him consistent with due process. “The fact that a defendant’s acts fall within the terms of the long arm statute does not necessarily mean the exercise of jurisdiction over him is proper. Rather, the exercise of jurisdiction must be consistent with due process.” In re Marriage of Brown (1987), 154 Ill. App. 3d 179, 185, 506 N.E.2d 727, 730, citing Mangold, 106 Ill. 2d 546, 478 N.E.2d 1366, and Boyer, 73 Ill. 2d 331, 383 N.E.2d 223.

South Dakota’s long-arm statute differs significantly from our own, but we need not decide whether it meets the requirements of due process. The fact that the Illinois respondent has not purposely availed himself of the benefits and protection of South Dakota law establishes that he does not have the required minimum contacts with that State to confer upon it the power to assert personal jurisdiction over him.

We affirm.

Affirmed.

STEIGMANN and McCULLOUGH, JJ., concur.


source: Caselaw Access Project

author: JUSTICE COOK

license: Public Domain

text:
    JACOB C. HERMES et al., Plaintiffs and Counterdefendants-Appellees, v. JOHN E. FISCHER, Defendant and Counterplaintiff-Appellant (Unknown Owners, Defendants).
    Fourth District
    No. 4—91—0692
    Opinion filed March 19, 1992.

      Samuel C. Patton, of Springfield (Craig Dow Patton, of counsel), for appellant.
    Sheehan & Sheehan, P.C., of Springfield, for appellees.
   JUSTICE COOK

delivered the opinion of the court:

In November 1986, plaintiffs Jacob Hermes, Patrick Hermes, George Hermes, Mary Morlee, Anna Morlee, Catherine Canfield, and Barbara Tank filed a complaint and application for preliminary injunctions against defendants asserting counts for quiet title, ejectment, and trespass. Defendant John Fischer (Fischer) filed an amended counterclaim for interference with the use and ownership of property. On August 20, 1991, the circuit court of Sangamon County granted a motion for summary judgment in favor of plaintiffs, finding them to be the owners by adverse possession of the Sangamon County real estate and barring defendants’ claim to any right or title in the subject real estate. The court dismissed Fischer’s amended counterclaim with prejudice.

Defendant Fischer appeals, contending the trial court erred in granting summary judgment due to the existence of questions of material fact, and the absence of unequivocal proof of the elements necessary to defeat his title as record owner of the disputed property. We affirm.

The real estate in issue is a triangular tract of approximately 1.836 acres, as shown in the diagram appended, originally owned by the Springfield Railroad Company and conveyed to G.W. and Ella Lewis in 1946 (tract B). The property forms a right-angle triangle: the northern leg of the right angle runs 413 feet from west to east (from point (1) to (2)), the western leg of the right angle runs 386 feet from north to south (from point (1) to (3)), and the eastern leg forms the hypotenuse and runs northeasterly for 559 feet along the right-of-way of highway Route 54 (from point (3) to (2)). The western boundary of tract B (from point (1) to (3)) adjoins a tract owned by plaintiffs (tract A).

The record indicates that from at least 1958 to 1962, G.W. Lewis and Ella Lewis held title to both tracts A and B and farmed them as a single unit on a crop-share basis with a tenant. In 1962, tract A was conveyed to Adlai Rust and wife, who continued to farm both tracts as a single unit through the 1964 harvest. In January 1965, Adlai Rust and Carl Hermes signed a contract for sale of the property. Prior to closing, the real estate broker for Adlai Rust took Carl Hermes upon the property to inspect and measure. Both believed the boundaries of tract A included the triangle formed by tract B. Title to tract A was conveyed to Carl Hermes in February 1965. Carl Hermes and his sons continued the farming of both parcels each season until 1983 as a single unit and crop rows were continuous over both tracts. On June 8, 1983, Carl Hermes deeded tract A to his seven children, plaintiffs herein, who farmed and cultivated both tracts A and B as a single tract from June 1983 until November 1, 1986, when defendant placed a mobile home on tract B. In May 1983, prior to conveyance, Carl Hermes had an appraisal made of the property he believed he was conveying by gift to his children, for purposes of ascertaining market value. The appraisal included maps showing tracts A and B to be a single tract of farmland. The appraisal was reviewed by plaintiffs and Carl Hermes.

Tract B was first assessed for real estate taxes in 1984 and an assessment notice was mailed to G.W. Lewis, in care of a local relative. G.W. Lewis was then deceased. On his death the property had passed to his wife, Ella, and on her death it had passed to their son, G.H. Lewis, although the property was not inventoried in either estate. In June 1985, a tax bill for 1984 taxes was forwarded to G.H. Lewis, who then resided in Florida. G.H. Lewis believed the land had previously been deeded to his stepbrother Grady. On June 24, 1986, plaintiffs recorded a notice and affidavit of adverse possession as to tract B. On that same date, G.H. Lewis conveyed tract B to defendant Fischer, but the deed was not recorded until September 24, 1986. The taxes for 1985 were forfeited and not redeemed until 1986 by defendant Fischer. In the fall of 1986, defendant had tract B surveyed, erected a fence, and placed a mobile home on it.

Plaintiffs filed a complaint to quiet title to tract B pursuant to the 20-year statute, section 13 — 101 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1989, ch. 110, par. 13—101). It is not disputed that defendant is the record titleholder of tract B.

Based on the pleadings, admissions, and affidavits on file, summary judgment was entered in favor of plaintiffs on August 20,1991, the trial court finding:

“3. Plaintiffs and Plaintiffs’ predecessors in title, beginning in 1962, claiming it as their own, entered into and upon and commenced farming the subject real estate, annually plowing, planting, cultivating and harvesting crops from the subject real estate, all openly and visibly, continuously and without interruption, complaint or objection from Defendant or his predecessor in title until November 1, 1986, a period in excess of 20 years.
4. The only conclusion, free from doubt and without contradiction, which can be drawn is that the Plaintiffs and their predecessors claimed and exercised without objection all facets of ownership of the subject real estate openly, visibly, continuously and without interruption during the entire said period exceeding 20 years.
5. There is no genuine issue as to any material fact, and the Plaintiffs and Counter-Defendants are entitled to judgment as a matter of law.”

Summary judgment should be granted when the pleadings, depositions, admissions, and affidavits show that there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. (Purtill v. Hess (1986), 111 Ill. 2d 229, 240, 489 N.E.2d 867, 871; Ill. Rev. Stat. 1989, ch. 110, par. 2—1005(c).) “If a party moving for summary judgment supplies facts which, if not contradicted, would entitle such party to a judgment as a matter of law, the opposing party cannot rely on his pleadings alone to raise issues of material fact.” (Purtill, 111 Ill. 2d at 240-41, 489 N.E.2d at 871.) On review of an order granting summary judgment, the appellate court should consider anew the facts and law related to the case and determine whether the trial court is correct. Shull v. Harristown Township (1992), 223 Ill. App. 3d 819, 824.

Here, the underlying facts are essentially uncontradicted by the counteraffidavits defendant has submitted. The party claiming a bar to the assertion of legal title by the record owner must show five elements of possession for the duration of the 20-year statutory period. Possession must be (1) continuous, (2) hostile or adverse, (3) actual, (4) open, notorious, and exclusive, and (5) under claim of title inconsistent with that of the true owner. (Joiner v. Janssen (1981), 85 Ill. 2d 74, 81, 421 N.E.2d 170, 174.) There is a presumption in favor of the true owner, and the proof required to overcome the presumption must be strict, clear, and unequivocal. Joiner, 85 Ill. 2d at 81, 421 N.E.2d at 174; Wiedrich v. Howard (1956), 7 Ill. 2d 589, 593, 131 N.E.2d 508, 510.

Defendant asserts that since plaintiffs and their predecessors in title mistakenly believed they held title to tract B, and the various conveyances failed to include the legal description of tract B, questions of fact exist as to whether possession was hostile. Defendant cites no authority for this view, nor could he.

Our supreme court in Joiner noted that neither a possessor’s mistaken belief that he is in fact the true owner, nor the absence of a description of the disputed property in the deed of conveyance destroys the requisite element of hostility of possession. (Joiner, 85 Ill. 2d at 82-83, 421 N.E.2d at 174-75.) “The ‘hostile’ nature of the possession does not imply actual ill will, but only the assertion of ownership incompatible with that of the true owner and all others.” (Joiner, 85 Ill. 2d at 81, 421 N.E.2d at 174.) The controlling factor in determining whether possession to a mistaken boundary is hostile is the exercise of acts of ownership incompatible with that of the record owner, through the use and control of disputed property to demonstrable parameters. See Joiner, 85 Ill. 2d at 82-83, 421 N.E.2d at 174-75.

It is undisputed that plaintiffs and their predecessors in title used and controlled tract B by cultivating, planting, and harvesting crops for each of the growing seasons from 1962 through 1986. However, in order to establish the extent of the land possessed under a claim of ownership, a claimant must demonstrate by clear and convincing proof the visible and ascertainable boundaries to which he claims at the inception, throughout continuance, and at completion of the period of adverse possession. (Schwartz v. Piper (1954), 4 Ill. 2d 488, 493, 122 N.E.2d 535, 538.) Defendant claims there is a question of fact presented whether plaintiffs have supplied convincing proof of the ascertainable boundaries of tract B during the entire period for which they claim possession.

The existence of visible or ascertainable boundaries is shown by the uncontradicted affidavits submitted by plaintiff Jacob Hermes, by the real estate broker who arranged the sale of tract A to plaintiffs’ grantor, by the surveyor of tract B hired by defendant Fischer, and by residents of the county having daily familiarity with both tracts A and B for more than 30 years. All acknowledge that two of the boundaries to the triangular-shaped tract B were at all times visible and ascertainable: the northern leg (forming one leg of the right-angle triangle, running from point (1) to (2)), and the eastern leg (forming the hypotenuse of the triangle, running from point (2) to (3)). The north line was ascertainable by sighting from a stone marker in the west one-quarter corner of section 15 to a stone in the center of section 15 (from point (C) to (D)). Additionally, a clearly visible crop line, which had been in existence since at least 1962, separated tract B from the Gaudlitz land adjoining it on the north. The eastern line of the property is bounded by the right-of-way for highway Route 54. The west line of the triangle (forming a right angle with the north line, running from point (1) to (3)) lacks delineation but is contiguous to tract A. In mistaken-boundary cases like this one, there generally will be no evidence of a visible boundary between land to which the possessor holds record title, here tract A, and contiguous land to which a claim of ownership is asserted, here tract B. (See Joiner, 85 Ill. 2d at 82-83, 421 N.E.2d at 174-75; Applebey v. Lenschow (1986), 144 Ill. App. 3d 208, 211-13, 494 N.E.2d 529, 532-33.) The boundaries to be proved are those limiting the extent of land possessed under a claim of ownership; location of the boundary dividing property held by legal title from adjacent property claimed by adverse possession need not be proved.

We conclude the affidavits and other documents of record establish with reasonable certainty the location of the boundaries of the tract to which the five elements of adverse possession must attach for the duration of the 20-year statutory period pursuant to section 13 — 101 of the Code. See Bakutis v. Schramm (1983), 114 Ill. App. 3d 237, 240-41, 448 N.E.2d 982, 985; Joiner, 85 Ill. 2d at 83, 421 N.E.2d at 175.

Defendant cites Baumann v. Lawndale National Bank (1977), 45 Ill. App. 3d 328, 359 N.E.2d 1086, for the rule that adverse claimants cannot add their time in possession to the time of their predecessors without some proof the disputed land was intended to be transferred to them. Defendant asserts that since the deed to tract A does not contain a description of tract B, a question of fact is present as to whether plaintiffs’ predecessors in title intended to transfer tract B.

Possession by successive possessors can be “tacked,” to establish continuous possession in excess of the 20-year statutory period. (Rich v. Naffziger (1912), 255 Ill. 98, 103, 99 N.E. 341, 342; Applebey, 144 Ill. App. 3d at 214, 494 N.E.2d at 534.) However, conveyance by deed of a tract of land adjoining disputed land will not alone establish continuity of possession; privity of possession of land not described in the deed requires a delivery of possession between successive occupants. Duck Island Hunting & Fishing Club v. Whitnah (1922), 306 Ill. 284, 290-91, 137 N.E. 840, 842-43.

Possession of tract A was conveyed by deed to Carl Hermes from Adlai Rust in February 1965. The description of tract B was not included in the deed. Prior to purchase, however, the real estate broker for the Rusts took Carl Hermes upon the land and assisted in an inspection and measurement. The measurement and walking inspection of the perimeter included tract B, which both believed was included in the description in the deed to tract A. Carl Hermes continued to farm both tracts as a single unit, and in 1983 deeded tract A to plaintiffs. Prior to that conveyance, Carl Hermes had obtained an appraisal of the land he believed was encompassed within the description of tract A, and had reviewed the appraisal with plaintiffs. The record is unequivocal and uncontradicted that both Adlai Rust and Carl Hermes, plaintiffs’ predecessors in possession, had intended, and in fact delivered, possession of tract B contemporaneous with conveyance by deed of tract A. In each instance, successor occupants resumed farming both tracts as a single unit. “ ‘[Continuity and connection [of possession] may be effected by any conveyance, agreement or understanding which has for its object a transfer of the rights of the possessor or of his possession, and is accompanied by a transfer of possession in fact.’ ” Rich, 255 Ill. at 105, 99 N.E. at 343, quoting Smith v. Chapin (1863), 31 Conn. 530, 531-32.

Although defendant does not raise a specific argument as to the required element of actual possession, we note that evidence of record establishes that both tracts A and B were continuously cultivated for the raising of crops since at least 1962 and until November 1986; such is an activity sufficient to establish actual possession. (Applebey, 144 Ill. App. 3d at 214, 494 N.E.2d at 534.) Similarly, the elements of open, notorious, and exclusive possession under a claim of ownership have been proved by such acts of dominion as continuous cultivation and retention of crop proceeds so as to demonstrate to the immediate neighborhood that plaintiffs alone have the management and control of the subject property, in excess of the statutory duration, to the exclusion of rights of the record owner. See Joiner, 85 Ill. 2d at 82, 421 N.E.2d at 174.

Plaintiffs have proved themselves the legal owners of all of tract B by adverse possession well in excess of the statutory 20-year period. There is no genuine issue of material fact as to proof of the requisite elements of adverse possession. Accordingly, the order granting summary judgment in favor of plaintiffs and adjudicating plaintiffs the fee simple owners of the subject real estate is affirmed.

Affirmed.

STEIGMANN and KNECHT, JJ., concur.

Appendix


author: JUSTICE McCULLOUGH

text:
    KEVIN CLAXTON, a Minor, by his Father and Next Friend, Warren Claxton, et al., Plaintiffs-Appellees, v. MICHAEL GROSE, Defendant-Appellant.
    Fourth District
    No. 4—91—0551
    Opinion filed March 19, 1992.
    Rammelkamp, Bradney, Dahman, Kuster, Keaton, Fritsche & Lindsay, P.C., of Jacksonville, for appellant. .
    Timothy W. Kelly, of Allison & Kelly, of Bloomington, for appellees.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

This is a dog bite case. Defendant Michael Grose appeals from the judgment of the circuit court of Moultrie County entered in favor of plaintiffs Kevin Claxton, a minor, by his father and next friend, Warren Claxton, and Warren Claxton, individually, following a jury trial.

Count I of plaintiffs’ complaint sought damages for the injuries sustained by the minor, born August 15, 1977, as a result of an unprovoked attack by defendant’s Doberman pinscher, occurring on September 16, 1989. This count was brought pursuant to section 16 of the Illinois Animal Control Act (Act) (Ill. Rev. Stat. 1989, ch. 8, par. 366). Judgment was entered against defendant on count I in the amount of $7,500, and no issue is raised on appeal concerning count I.

Count II of plaintiffs’ complaint was brought by Warren to recover medical expenses incurred for Kevin’s care and treatment following the attack. Count II also alleged it was brought pursuant “to the Illinois Animal Control Act, Illinois Revised Statutes, Chapter 8, Section 366.” On count II, judgment against defendant was entered in the amount of $21,500.

On appeal, defendant raises two issues concerning the judgment on count II: (1) whether a motion to amend count II to conform to the proofs was properly granted, and (2) whether Warren (hereinafter referred to as plaintiff) is entitled to recover for medical expenses under the Act.

Judgment was entered in this case on February 22, 1991. On March 13, 1991, defendant filed a post-trial motion. On April 1, 1991, plaintiff filed a motion to amend count II of the complaint to allege as paragraph 12, the following:

“12. Plaintiff brings this action pursuant to the Illinois Family Expense Statute, Ill. Revised Statute, Chapter 40, Section 1015.”

The motion was made pursuant to section 2 — 616(c) of the Illinois Code of Civil Procedure (Code) (Ill. Rev. Stat. 1989, ch. 110, par. 2—616(c)). On July 24, 1991, the trial court allowed plaintiff’s motion to amend and denied the defendant’s post-trial motion. In ruling on the motion to amend, the trial judge made the following findings:

“Finding by the court that plaintiff Warren Claxton’s proposed amendment to Count II does not present to the court an issue not heretofore raised and is an issue upon which evidence was presented at trial of this cause. Further finding, that in Count II of the original Complaint filed herein Plaintiff raised the issue of the Family Expense Act for medical expenses incurred and to be incurred by Plaintiff, Warren Claxton, for his minor son, and the statutory citation of authority contained in paragraph 11 of Count II was in error rather than the statutory citation of authority to the Family Expense Act.”

Section 2 — 616(c) of the Code provides that pleadings may be amended to conform to the proofs before or after judgment on terms as to costs or continuance as may be just.

“A trial court has broad discretion regarding the allowance of amendments to pleadings prior to the entry of final judgment, and the trial court’s ruling will not be overturned by an appellate court in the absence of a showing of manifest abuse of discretion.” (Bolin v. Sosamon (1989), 181 Ill. App. 3d 442, 445, 537 N.E.2d 11, 12.)

No abuse of discretion occurred here.

The parents of a minor child are responsible for that child’s medical expenses, and since the obligation to pay rests on the parents, the cause of action to recover such medical expenses lies in the parents, not the child. (Graul v. Adrian (1965), 32 Ill. 2d 345, 347, 205 N.E.2d 444, 446; In re Estate of Hammond (1986), 141 Ill. App. 3d 963, 965, 491 N.E.2d 84, 85-86; Kennedy v. Kiss (1980), 89 Ill. App. 3d 890, 894, 412 N.E.2d 624, 628.) The basis for this rule is the family expense statute, which provides in relevant part:

“The expenses of the family and of the education of the children shall be chargeable upon the property of both husband and wife, or of either of them, in favor of creditors therefor, and in relation thereto they may be sued jointly or separately.” Ill. Rev. Stat. 1989, ch. 40, par. 1015(a)(1).

Defendant contends that, since an action under the family expense statute is not a derivative action but a direct action to recover for injuries sustained by plaintiff (Thompson v. City of Bushnell (1952), 346 Ill. App. 352, 354-55, 105 N.E.2d 311, 312), and no evidence as to common law negligence having been presented at trial, plaintiff is not entitled to recover. A new theory of recovery can only be added by amendment if it conforms to the proofs. (Colgan v. Premier Electrical Construction Co. (1981), 92 Ill. App. 3d 407, 412, 414 N.E.2d 1364, 1368.) Defendant reasons that plaintiff was not the person who was attacked by the dog and plaintiff may not recover in a direct action under the Act. Defendant does not argue that the proof is deficient as to the payment of medical expenses by plaintiff on behalf of the minor. We disagree with defendant’s conclusion that plaintiff may not recover under the Act.

Section 16 of the Act (Ill. Rev. Stat. 1989, ch. 8, par. 366) provides:

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

The right to seek recovery is not limited to the person physically attacked by the dog. Any injured person, including a parent of a minor, may recover under this section. The party seeking to recover such medical expenses must, of course, establish that (1) the minor victim’s injury was caused by the animal owned by the defendant; (2) lack of provocation; (3) peaceable conduct of the minor child; and (4) the presence of the minor child in a place where he had , a right to be. Where the injuries were caused by the animal’s behavior other than an attack on the victim, proximate cause between the animal’s behavior and the injury to the minor victim must be established. See Forsyth v. Dugger (1988), 169 Ill. App. 3d 362, 365, 523 N.E.2d 704, 706.

Had Kevin been an adult when bitten by defendant’s dog, he could have recovered for the medical expenses he incurred. There is nothing in the statute which suggests that while Kevin could recover medical expenses if he were an adult, because he is a minor the recovery of the medical expenses incurred in his behalf by a parent are only recoverable under the common law theory of negligence.

By analogy, defendant resorts to cases deciding the scope of protection of section 9 of the Structural Work Act (Ill. Rev. Stat. 1989, ch. 48, par. 69) extends only to the structural worker and not to the worker’s spouse. Defendant cites Harvel v. City of Johnston City (1990), 205 Ill. App. 3d 661, 563 N.E.2d 1157, rev’d (1992), 146 Ill. 2d 277. In reversing there, the supreme court held that the use of the term “party injured” in the Structural Work Act was not a reference solely to the injured worker. Harvel v. City of Johnston City (1992), 146 Ill. 2d 277.

Section 16 of the Act encourages the appropriate control of animals by their owners to prevent injuries to others and promotes the full compensation of the injured by those who violate the Act. To construe section 16 as including parents who have paid medical expenses on behalf of a minor within the definition of injured person is consistent with the statute’s preventive and compensatory purposes. Furthermore, by amending the complaint to add paragraph 12, the plaintiff alleged the necessary element that he was legally obligated to pay Kevin’s medical expenses. This was necessary since recovery could not be had in the absence of such a legal obligation. See Pfeil v. Weerde (1987), 152 Ill. App. 3d 759, 760-61, 504 N.E.2d 988, 989-90.

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

Affirmed.

GREEN, P.J., and LUND, J., concur.


author: JUSTICE LUND

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RODNEY ERVIN, Defendant-Appellant.
    Fourth District
    No. 4—91—0531
    Opinion filed March 19, 1992.

      Daniel D. Yuhas and David P. Bergschneider, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Lawrence R. Fichter, State’s Attorney, of Decatur (Kenneth R. Boyle, Robert J. Biderman, and Denise M. Ambrose, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE LUND

delivered the opinion of the court:

Defendant Rodney Ervin was charged by information with first-degree murder (Ill. Rev. Stat. 1989, ch. 38, pars. 9—1(a)(1), (a)(2), (a)(3)). Following a jury trial, he was convicted and sentenced to 25 years’ imprisonment. He now appeals, contending that (1) the trial court erred in admitting certain hearsay statements of two of his co-defendants into evidence; and (2) the prosecutor committed reversible error in making certain statements to the jury in his closing argument.

Defendant was charged with the murder of Charles George (George), along with codefendants Jimmy Brooks (Brooks), Anthony Ervin (Anthony) and Shirley Ervin (Shirley). Anthony is defendant’s brother and Shirley is his wife. It was alleged that defendant, Brooks, and Anthony concocted a plan to steal drugs from George, who was a drug dealer. It was also alleged that although the defendant (who knew George) was not personally present when George was stabbed by Brooks and/or Anthony in the robbery attempt, he was legally accountable for their conduct. Shirley drove the getaway car. All this occurred during the early morning hours of January 3,1991.

Brooks and Anthony were tried together first. While their jury was deliberating, they entered into a negotiated plea agreement with the State, whereby they pleaded guilty to killing George while attempting to rob him. Brooks was sentenced to 25 years’ imprisonment, while Anthony was sentenced to 20 years’ imprisonment.

During the State’s case, Elizabeth Hodges (Hodges) testified that she and her children were living "with George. Shortly after midnight on January 3, 1991, defendant came to the door of her home and she let him in. Defendant asked George to sell him some cocaine, to which George replied that it had been a long day and he was getting ready to go to bed. Defendant then asked George if he wanted to attend a party in the neighborhood and gestured toward Union Street. Defendant was jittery while he was in the house; he was speaking rapidly and glancing around the room as he spoke. George declined to go to the party, defendant left, and George locked the door. About 20 minutes later, two black males Hodges had never seen before knocked on the door. She later identified them from photographs as Brooks and Anthony. They were permitted to enter. When George asked how he could help them, Brooks said, “We have been sent here to take your drugs.” Defense counsel’s objection to this statement was overruled. Hodges then testified that Brooks hit George with a wooden stick which broke in two pieces. George had pulled a knife, which he dropped as he fell to the floor. He then went into the dining room, followed by Brooks. Anthony then grabbed Hodges’ hair and asked her where the drugs were. Defense counsel’s objection to this statement was also overruled. Hodges pointed out the drugs to Anthony. He let Hodges go and went into the dining room, where George was swinging a machete at Brooks. George fell to the floor, and Brooks straddled him and began stabbing him in the back with a knife. Hodges observed Anthony making stabbing motions at George’s side. Both men then ran out the door. Hodges identified a bag of marijuana as belonging to George.

On cross-examination, Hodges testified that George locked the door when defendant left, but she later went out to the car to get the keys and left the door unlocked when she returned to the house. Defense counsel questioned her about three previous statements she had given to the police. In one statement she said that Brooks stated he and Anthony had been sent to the George house by a friend. In the other statement she said Brooks simply announced that he and Anthony had been sent there. In yet another statement, Hodges told the officer Brooks said, “We have been sent.” She further testified that she could not be certain the bag of marijuana was the same one George had. She also testified a juvenile proceeding had been filed against her because of her involvement in the incident, that she had already lost custody of her daughter, and that she expected to lose custody of her son. She also hoped she might regain custody through her cooperation with the State in testifying against defendant.

Officer John Beggs testified that he searched defendant’s car and found a jacket with bloodstains on it. A baggie containing marijuana was found in the coat pocket, and there were fresh bloodstains in the backseat area of the car. He also found a toilet plunger with no handle. The officer demonstrated for the jury how one of the pieces of the stick used to hit George fit into the toilet plunger head.

Shirley testified that on the night of January 2, 1991, she and defendant were expecting a visit from Anthony, his wife and children, and Brooks, who were driving to Decatur from their homes in Cook County. Shortly after their arrival, defendant, Anthony, and Brooks left the house. They took defendant’s car and were gone about 45 minutes to an hour. She did not know where they had gone. After they returned, everyone sat in the dining room. Brooks and Anthony asked about quick ways to make money in Decatur. Defendant, Brooks, and Anthony then went into the kitchen for about 20 to 30 minutes, where defendant cut Anthony’s hair. Shirley was in the living room at that time and could not hear any of their conversation. The three men then went into the bathroom, closed the door, and stayed there about 5 to 10 minutes. Again, she could not hear any of their conversation. When the men emerged from the bathroom, they went back into the kitchen, where they stayed about 30 minutes. While they were in the kitchen, she heard a voice ask, “Who is going to drive?” She did not know who asked this question. She then heard defendant say, “Shirley’s going to drive.”

Defendant approached Shirley in the living room and asked her to drive him to an undisclosed destination. Shirley, defendant, Brooks, and Anthony all got into the car. The defendant told Shirley where to drive and to park the car on Union Street about half a block from George’s house. She could not see his house from the car. She indicated she knew who George was and that defendant had previously purchased cocaine from him. While she was driving, the three men were huddled and talking among themselves. She heard the word “robbery,” and defendant said, “I know a guy.” Defendant then told Brooks and Anthony that he would go to the house “first” and they were to stay in the car until he returned.

Over defense counsel’s objection, Shirley testified as to conversation between Brooks and Anthony outside defendant’s presence. She testified that Anthony told Brooks he was going to go to a house and cut a phone wire and Brooks told him not to. The two men then said to each other, “How are we going to do this?” When defendant returned to the car approximately 5 to 10 minutes later, he told Brooks and Anthony, “Old boy's sitting in the house watching TV, and that I left the front door unlocked for you two.” Brooks and Anthony left the car. Defendant told them to tell “the guy” that Eddie (George’s brother) sent them. Brooks and Anthony were gone about five minutes. Shirley wanted to leave before they returned, but defendant prevented her from doing so.

When Brooks and Anthony returned to the car, they both said they had been cut. They both sat in the backseat behind defendant and Shirley. Anthony then told defendant, “Rodney, man, wasn’t nothing in there but a bag of weed.” Defendant responded, “Man, I know there was some coke in there. I seen it when I went in the house by myself.” Anthony gave defendant a rolled-up baggie of marijuana. She noticed that Brooks did not have on the L.A. Kings cap he had been wearing before he got out of the car. Brooks commented that he must have dropped the cap in the house. Brooks then told Anthony he stabbed “him” three times. Anthony responded that he had not laid a hand on “him”; the only thing he did was to hold a “girl” back by her neck. Shirley was asked by Brooks and Anthony to take them to whichever hospital the “guy” would not be taken to. She did not know who the “guy” was. She told the three men that if they had hurt someone they would all go to jail, regardless of which hospital she took them to. While she was driving to the hospital, the three men talked about how to explain the cuts to hospital personnel. Defendant told Brooks to say he had cut his hand while chopping a ham, and told Anthony to say he had cut his hand while carving a turkey. While they were at the hospital, Shirley heard over the intercom that a white Caucasian male was being transferred. She and defendant got in the car to leave, along with Anthony. Brooks was still in the hospital emergency room. When asked why he had not received treatment, Anthony said he had heard a Caucasian male was being transferred to the hospital and was not expected to live. He said he did not want to go back to jail.

Shirley drove home and parked the car behind the house. After they went into the house, defendant told Anthony to tell police he had cut his hand carving a turkey. He told Shirley, Anthony, and Anthony’s wife to tell police that Brooks left the house alone and came back with a cut hand, and that they took him to the hospital. Shirley testified that defendant said he did not think Brooks would “squeal,” but that Anthony said he thought Brooks would tell. Defendant told Anthony that if anyone got into trouble, all three of them would “go down.” Shirley was told to stick to the story. Later that morning, the police came to the house and arrested defendant and Anthony. Shirley was also arrested and charged with first-degree murder. She subsequently entered into a plea agreement with the State, in which she agreed to testify against defendant in exchange for reduction of her charge to armed robbery. She testified that she knew she was facing 6 to 30 years’ imprisonment and would not be eligible for probation.

On cross-examination, Shirley testified that defendant, Brooks, and Anthony brought beer back with them after they initially left the house, but that they did not say where they had gone. Defense counsel attempted to impeach Shirley by pointing out she had testified at her guilty-plea hearing that the three men had gone into the bathroom first for about 5 to 10 minutes and then into the kitchen, where defendant began cutting Anthony’s hair. Defense counsel also pointed out Shirley had previously made a statement to police that Brooks had told her where to drive. In another statement, she said nothing about defendant telling Brooks and Anthony he had left the door to George’s house unlocked for them. She also did not tell police in the statement that defendant told Brooks and Anthony to tell George that Eddie sent them. Shirley also admitted she was angry with defendant because she believed he was responsible for her involvement.

Detective Carpenter of the Decatur police department testified to an oral statement given to him by defendant. He said defendant told him Shirley had cooked a turkey for their dinner. He, Brooks, and Anthony went to Mr. Lucky’s to buy liquor. When they arrived back at the house, they all sat around drinking. They decided to get some marijuana. He, Shirley, and Brooks went to George’s house, while Anthony and his wife stayed at the house. Defendant went into George’s house alone and asked George to sell him a “nickle bag” ($5 worth) of marijuana. George offered to sell him an eighth of an ounce for $40, but refused to sell him only a nickel bag. Defendant left, and he, Shirley, and Brooks went back to his house. Brooks left the house later and returned with a bad cut on his hand. After that, Anthony cut his hand carving the turkey — or so defendant assumed. The detective also testified that defendant gave him a written statement. In that statement, defendant said he was watching television when Brooks knocked on the door, screaming he had cut his hand. Then Anthony cut his hand. On the way to the hospital Anthony complained he had no money to pay the bill, and for this reason he gave hospital personnel a fictitious name. Defendant, Shirley, and Anthony then left the hospital.

Two police officers testified for the defense concerning statements given to them by Hodges (George’s girlfriend). She told one officer that after defendant left George’s house, neither she nor George locked the door. She told the other officer that when Brooks and Anthony entered the house, they said they had been sent by a friend.

Defendant testified on his own behalf. He stated he had been convicted of forgery and robbery in 1988. He, Brooks, and Anthony went to get some beer and cigarettes at a liquor store about two blocks from defendant’s house. They went past a club or tavern and then went back to defendant’s house, where they all started drinking. They began discussing Anthony’s hairstyle; then he, Anthony, and Brooks went into the bathroom to decide how to cut Anthony’s hair. They then went into the kitchen, where he began cutting the hair. Brooks asked about fast ways to make money, but no one talked of robbing anyone. In the kitchen they were talking about a friend of defendant’s who had been selling cocaine and was fatally shot. Anthony asked about marijuana, and defendant said he would see if George would “front” him some, i.e., allow him to buy some on credit. He decided not to drive, because he believed Shirley would not allow it since she had recently paid several hundred dollars in traffic tickets for him. She had been upset that he had previously driven the car that evening, and so he asked her to drive them to George’s house. Brooks and Anthony went with them. They stopped the car in front of George’s house. Defendant went in and asked George to front him a nickel bag. George told him to come back later and he would. As he left, defendant advised George to lock his doors before he wound up getting raided.

When he got back to the car, Brooks and Anthony asked him if he got the marijuana. He told them, “No, old boy’s in the house watching TV. He told me to come back in fifteen to thirty minutes.” Shirley started to drive away. When they were about a half block away from George’s house, Brooks told her to stop — he had to do something. Defendant believed he had to go to the bathroom. Brooks told Anthony to go with him. Defendant noticed the two of them standing on the corner talking. He thought they were both going to the bathroom. He dozed off in the car and woke up when Shirley started the car. He noticed that Brooks and Anthony had not returned. He stopped Shirley from leaving, concerned because it was a cold night and that Brooks and Anthony would not know how to get back to his house. When Brooks and Anthony got back to the car, they said Brooks had gotten into a fight but did not say with whom. Defendant noticed Brooks’ hands were covered with blood. Brooks said the person with whom he had been fighting had his money and he (Brooks) did not get his drugs. No one gave defendant a baggie; he did have a baggie in his hand, but it only contained some candy. When they arrived at the hospital, defendant tried to clean the blood off the back seat of the car with some paper towels. It was then he was told the man with whom Brooks fought was white. They left the hospital. Shirley went back to the hospital later to pick up Brooks. She came back to the house and said the police were at the hospital with Brooks. Defendant testified he became afraid they would all be arrested, and he then told everyone what story to give the police. The statement he initially gave to police was the one he told everyone to use. He also testified that the reason he told Brooks and Anthony he would go to George’s door by himself was because George had told him he did not like strangers around his house at night. He testified when Shirley heard the word “robbery” in the car, that he, Brooks, and Anthony were talking about his best friend in Chicago who had committed a robbery. Anthony was going to be moving to Decatur, and he asked defendant what he and Brooks should do if they could not find him and they wanted to get some marijuana from George. Defendant testified he told them to tell George that he or Eddie had sent them. He denied he made any plan with Brooks and Anthony to rob George.

On rebuttal, Detective Carpenter testified that defendant did not tell him in any of the statements given by him that he dozed off in the car while Brooks and Anthony were gone or that George had told him to come back later and he would front defendant some marijuana.

After deliberating less than 15 minutes, the jury returned a verdict of guilty.

Defendant’s first claim of error on appeal is that the trial court erred in admitting statements made by Brooks and Anthony. These statements were admitted under the coconspirator exception to the hearsay rule. Defendant contends the State had not established the existence of a conspiracy by evidence independent of the hearsay and, therefore, the statements should not have been admitted. Defendant objects to the following: (1) the statement by Brooks (testified to by Hodges) that he and Anthony had been sent to George’s house to take his drugs; (2) the question asked by Anthony (again, testified to by Hodges) as to the location of George’s drugs; (3) the question by Brooks or Anthony in defendant’s kitchen (testified to by Shirley) as to who would drive the car and defendant’s response that Shirley would drive; (4) Shirley’s testimony concerning statements made by Brooks and Anthony in the car while defendant was in George’s house about cutting a telephone wire and asking “how are we going to do this”; and (5) the statements made by defendant to Brooks and Anthony that he had left the door to George’s house unlocked for them and they should tell George that Eddie had sent them.

The objection to Shirley’s testimony about defendant’s statement that he had left George’s door unlocked for Brooks and Anthony, i.e., (5) above, was objected to as being unresponsive to the prosecutor’s question to Shirley. No objection to either of these statements was raised in defendant’s post-trial motion. In addition, defense counsel did not raise any claim of error in his post-trial motion about Shirley’s testimony concerning the question asked in the kitchen of defendant’s house as to who would drive the car and defendant’s response that Shirley would drive, i.e., (3) above. We also note that defense counsel did not object to the statement made by defendant to Brooks and Anthony that George was sitting in the house watching television.

It is the law in this State that counsel must make an objection at trial and raise it again in a post-trial motion to preserve an issue for appellate review. (People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124, 1130.) Failure to do so constitutes a waiver of any issues not thus properly preserved. The trial court properly overruled defense counsel’s objection to Shirley’s testimony that defendant said he had left George’s door unlocked for Brooks and Anthony, i.e., (5) above. The prosecutor, as the questioning counsel, was the only one with standing to make this objection. (See Hester v. Goldsbury (1965), 64 Ill. App. 2d 66, 71, 212 N.E.2d 316, 319.) In addition, a specific objection at trial waives all grounds not stated. (People v. Williams (1983), 97 Ill. 2d 252, 288, 454 N.E.2d 220, 237.) Therefore, we decline to consider any alleged error in connection with these statements, i.e., (3) and (5) above.

This leaves us with the question of whether statements made by Brooks and Anthony outside defendant’s presence were properly admitted into evidence, i.e., (1), (2), and (4) above. The trial court admitted these statements on the basis that they were within the coconspirator exception to the hearsay rule. A concise statement of this rule is found in People v. Meagher (1979), 70 Ill. App. 3d 597, 601, 388 N.E.2d 801, 803:

“The co-conspirator exception to the hearsay rule is well known. The acts and declarations of a co-conspirator in furtherance of the conspiracy are admissible against another who is a defendant, even when the acts and declarations are made out of the presence of the defendant. (People v. Jackson (1977), 49 Ill. App. 3d 1018, 364 N.E.2d 975.) No conspiracy need be charged and so long as a prima facie case of conspiracy has been shown by independent evidence, acts or declarations in furtherance of the conspiracy are admissible. See People v. Jackson (1977), 49 Ill. App. 3d 1018, 364 N.E.2d 975; People v. Morrow (1976), 40 Ill. App. 3d 1020, 353 N.E.2d 354.”

This court has held that the State must make an independent, prima facie evidentiary showing of the existence of a conspiracy between the declarant and the defendant. While such evidence may be totally circumstantial, it must be sufficient, substantial, and independent of the declarations made in order for hearsay statements to be admitted under the coconspirator exception. (People v. Duckworth (1989), 180 Ill. App. 3d 792, 795, 536 N.E.2d 469, 471.) If hearsay statements of an alleged coconspirator were allowed to serve as evidence of the very existence of the conspiracy, such hearsay would “lift itself by its own bootstraps to the level of competent evidence.” Glasser v. United States (1942), 315 U.S. 60, 75, 86 L. Ed. 680, 701, 62 S. Ct. 457, 467.

The State insists that sufficient independent evidence was introduced at trial to provide the required foundation for admission of the hearsay statements of Brooks and Anthony. It points to the following evidence, which it says established the existence of a conspiracy among defendant, Brooks, and Anthony: (1) defendant’s absence from the house for approximately 45 minutes with Brooks and Anthony during which, according to the State’s theory, the trio “undoubtedly ‘cased’ ” George’s house, since they would not otherwise have been gone so long to run errands at places only two blocks from defendant’s house; (2) defendant’s consultation with Brooks and Anthony in the bathroom of his house following the discussion of fast ways to make money and the ensuing conversation in the kitchen about who was going to drive the car; (3) defendant’s enlistment of Shirley to drive the getaway car, his refusal to tell her their destination, and his direction to her to park half a block from George’s house; (4) defendant’s huddled conference with Brooks and Anthony in the car on the way to George’s house, during which Shirley heard the word “robbery” and defendant said “I know a guy”; (5) defendant’s statement to Brooks and Anthony that he would go into the house by himself first and his instruction to them to remain in the car until he returned; (6) defendant’s nervousness in scanning the premises while he was talking to George and his suggestion that George accompany him to a party in the area where the car was parked, after George had said he was tired and intended to go to bed; (7) defendant’s statement to Brooks and Anthony that George was watching television, he had left the door unlocked for them, and they should tell George that Eddie had sent them; (8) Brooks’ use of the toilet plunger handle as a weapon against George and what the State suggests as the likelihood that the trio decided to use the plunger while they were in the bathroom; (9) defendant’s refusal to allow Shirley to drive away before Brooks and Anthony returned to the car; (10) Anthony’s statement he had seen no drugs in the house except the bag of marijuana, and defendant’s response that he had seen cocaine while he had been in the house talking to George; and (11) defendant’s fabrication of stories for the others to tell hospital personnel and the police.

We agree with the State that sufficient evidence was introduced, independent of the hearsay statements, to establish a prima facie showing of the existence of a conspiracy to rob George. Most of the evidentiary points enumerated above, taken together, establish sufficient circumstantial evidence of a conspiracy.

Defendant refused to tell Shirley of their destination and told her to park half a block from George’s house. Had defendant merely been going to George’s house to purchase drugs, this secrecy would have been unnecessary. Along the same lines, had the conversation in the car between defendant, Brooks, and Anthony been innocent as defendant testified, it would have been unnecessary for them to huddle together in an apparent attempt to keep Shirley from hearing what they were saying. Defendant told Brooks and Anthony he would go into George’s house first and that they were to remain in the car until he returned. This statement is inconsistent with defendant’s testimony that his intent all along was to simply ask George to allow him to buy some marijuana on credit. The obvious implication of such a statement was that defendant intended to “case” the situation inside George’s house to pave the way for Brooks and Anthony to enter the house. Further, defendant’s nervous behavior in the house, as testified to by Elizabeth Hodges, could be interpreted as indicating criminal intentions. The same can be said concerning defendant’s attempt to lure George out of the house with suggestions he attend a party in the general direction of defendant’s parked car. Defendant then told Brooks and Anthony when he returned to the car that the door to George’s house was unlocked and they should tell George that Eddie sent them. Defendant testified that George told him he did not like strangers at his house at night. If Brooks and Anthony told George his brother had sent them, this might persuade George to allow them into the house.

Anthony’s complaint to defendant, after he and Brooks returned to the car, that he had found only a bag of marijuana in the house and defendant’s response that he knew there was cocaine in the house because he had seen it while he was there, strongly suggests that defendant knew exactly where Brooks and Anthony were during their absence from the car. Finally, defendant admitted fabricating a story to tell hospital personnel how Brooks and Anthony had cut their hands. He admitted attempting to clean the blood from the backseat of the car. He further admitted to fabricating a story for Shirley and Anthony to tell police upon their anticipated arrival at his house. He further gave more than one false statement to police himself. Concealment efforts that are proximate in time to the principal offense are considered to be part of the ongoing conspiracy. People v. Childrous (1990), 196 Ill. App. 3d 38, 52, 552 N.E.2d 1252, 1261, appeal denied (1990), 133 Ill. 2d 562, 561 N.E.2d 696.

Having decided that the State, through independent evidence, established the existence of a conspiracy between defendant, Brooks, and Anthony to rob George of his drugs, we find the complained-of statements made by Brooks and Anthony were properly admitted under the coconspirator exception to the hearsay rule.

Defendant’s final claim of error concerns certain statements made by the prosecutor during closing argument. During his closing argument, the prosecutor stated:

“MR. CURRENT [(Assistant State’s Attorney)]: *** Finally, there comes a time in a person’s life when you have to face the punishment for an illegal act you’ve done. Some people call that paying the piper. Well, let’s examine who has paid the piper in this case. Let’s talk about Chuck George. Has Chuck George paid the piper?
MR. BAXTER [(Defense counsel)]: Objection, Your Honor.
THE COURT: Overruled.
MR. CURRENT: In the State of Illinois, there is no death penalty for being a drug dealer. You may not like drug dealers. I don’t like drug dealers, but there is no death penalty in the State of Illinois for being a drug dealer. Well, how has Chuck George paid the piper? He’s paid the piper with his life. What about Elizabeth Hodges? Has she ever paid the piper? I would agree with you that’s a pretty reprehensible woman who would have her kids in such a setting. That’s just no excuse. Well, what do you find out? You find out through the State’s Attorney’s actions. Are they codling [sic] some woman who acknowledges that her kids were in such an environment? She told you she has lost custody of her daughter, and she is ready to lose custody of her son. I’d suggest Elizabeth Hodges has paid the piper. What about Jimmy Brooks and Anthony Ervin? They have had there [sic] day in court. What about Shirley Ervin? Is she walking out of this courtroom scott free [sie][?] Probation, no. Sentence, six to thirty years. What did she do? She drove the car. Six to thirty years for Armed Robbery; she drove the car. Shirley Ervin went back to jail after she testified.
Now, what about Rodney Ervin? Everybody’s paid the piper, haven’t they; but what about Rodney Ervin? Rodney Ervin wants to walk out of the courtroom a free man. Compare what Shirley Ervin did with what Rodney Ervin did. Is that fair? Is Rodney Ervin going to walk out of this courtroom a free man? You, as jurors and citizens of Macon County, have a right to expect a fearless administration of justice. You as the citizens and jurors of Macon County ultimately decide what kind of community you are going to live in. People agree drugs are a terrible thing. Drugs are a scourge on society. Now is you are [sic] chance as citizens of Macon County to be a soldier in the war on drugs. You, as jurors, have a right to say, I will not tolerate those who sell drugs and those who kill over drugs. How is the vicious cycle going to end? Only through the actions of responsible citizens like yourself. There is a slogan that goes around about drugs, and we all might think it’s trite or whatever, but it says, just say no. You, as citizens, have the chance to say, no, I won’t take this any longer. I will not live in a community like this any longer.”

In rebuttal argument, the prosecutor said:

“Justice isn’t an unfamiliar word. Shirley Ervin has come to court and admitted her participation and is facing six to thirty with no probation for driving a car. This man says, let me go scott free [sic]. Is that justice?”

Defendant contends these statements constituted plain error and that we should reverse his conviction and remand for a new trial. He believes the comments made about Shirley, Brooks, Anthony, George, and Hodges having all paid “the piper” and about his wanting to avoid paying “the piper,” wanting to go scot-free, or wanting to walk out of the courtroom a free man, were improper because they sought to persuade the jury to convict him for exercising his constitutional right to go to trial rather than to plead guilty. He further believes the prosecutor impermissibly urged the jury to convict him in order to strike a blow in the war against drugs in the community. He says these arguments were an improper attempt to appeal to the jury’s fears about criminal activity unrelated to him. In his view, these comments shifted the jury’s attention away from its task of deciding his guilt or innocence based upon the evidence presented at the trial and created the risk that its decision would be based on fears about society’s drug problems.

Initially we note that defense counsel did not object to the comments about defendant wanting to walk out of court a free man or about the jury’s part in the war on drugs. Neither did he object to the prosecutor’s rebuttal argument. Defendant’s post-trial motion only specified error as to the comments about Shirley’s sentencing possibilities and the comment about George having “paid the piper.” As we have said, preservation of error for review requires a defendant to object at trial and to raise the issue in a post-trial motion. (Enoch, 122 Ill. 2d at 186, 522 N.E.2d at 1130.) Therefore, our consideration of defendant’s objections to the prosecutor’s comments not so preserved must depend upon whether those comments constitute plain error. Plain error exists when an error affects the substantial rights of a defendant or the evidence is closely balanced. People v. Griffiths (1983), 112 Ill. App. 3d 322, 326, 445 N.E.2d 521, 526; People v. Pickett (1973), 54 Ill. 2d 280, 282, 296 N.E.2d 856, 858.

Prosecutors are allowed great latitude in closing argument. In determining whether error exists, each case must be considered upon its own facts. A prosecutor may comment upon the evidence and legitimate inferences therefrom. A prosecutor may also respond to an argument by defense counsel which invites or provokes a response. The substance of closing arguments is within the sound discretion of the trial court, and its findings will not be disturbed absent extreme error. (People v. James (1990), 200 Ill. App. 3d 380, 393, 558 N.E.2d 732, 740-41, appeal denied (1990), 135 Ill. 2d 562, 564 N.E.2d 843.) A prosecutor may comment upon the evil results of crime and the benefits of a fearless administration of the law. (People v. Jackson (1981), 84 Ill. 2d 350, 360, 418 N.E.2d 739, 744.) However, it is improper for the prosecutor to argue assumptions or facts which are not based upon the evidence. (People v. Smith (1990), 141 Ill. 2d 40, 60, 565 N.E.2d 900, 908.) Nor may a prosecutor make statements in summation which are not relevant to the defendant’s guilt or innocence and which can only serve to inflame the jury. People v. Caballero (1989), 126 Ill. 2d 248, 271, 533 N.E.2d 1089, 1097.

The test to be applied in determining whether reversal is required is whether the alleged improper remarks are so prejudicial that defendant did not receive a fair trial, i.e., whether it can be said the jury’s verdict might have been different absent the improper remarks. People v. Hunter (1984), 124 Ill. App. 3d 516, 549, 464 N.E.2d 659, 684; People v. Jenkins (1989), 190 Ill. App. 3d 115, 135, 545 N.E.2d 986, 999, appeal denied (1990), 129 Ill. 2d 568, 550 N.E.2d 562; People v. Brown (1986), 146 Ill. App. 3d 101, 106, 496 N.E.2d 1020, 1023.

We find no error in the prosecutor’s remarks to which defendant objected at trial and which were raised as error in his post-trial motion. The prosecutor’s statements regarding Shirley’s likely sentence under her plea of guilty to armed robbery merely restated elicited testimony from Shirley during the trial. Remarks about other parties to the incident having “paid the piper” were made after the prosecutor had discussed the felony murder doctrine and the parts played by George, Shirley, Hodges, Brooks, and Anthony. The prosecutor could properly suggest to the jury that others involved in the offense had been punished or would be punished. This was simply comment on the evidence adduced at trial. There was no error in suggestions by the prosecution to the jury that the administration of justice should dictate that defendant also be punished for his role.

We also find no plain error in other arguments of the prosecutor which were not properly preserved by defendant for our review. As is illustrated by the above discussion of testimony at trial, the evidence was not closely balanced. There was extensive testimony that George was a drug dealer and that defendant, Brooks, and Anthony were at his house for the purpose of robbing George of his drug supply. The prosecutor was not required to ignore the evils of drug-related crime in his argument to the jury. He did not dwell on the subject of drugs. His comments about the evils of drugs were brief and not so egregious as to compel us to find they deprived defendant of a fair trial. We also find nothing to criticize in the prosecutor’s rebuttal argument. He was entitled to compare what the evidence tended to show about the respective roles of defendant and Shirley in this offense and to urge the jury to convict defendant.

For the foregoing reasons, defendant’s conviction is affirmed.

Affirmed.

STEIGMANN and KNECHT, JJ., concur.