author: JUSTICE INGLIS

text:
    DAVID A. SWEARINGEN, by his Guardians and Next Friends William E. Swearingen et al., et al., Plaintiffs-Appellants, v. ANN KORFIST, Defendant-Appellee.
    Second District
    No. 2—88—0742
    Opinion filed April 11, 1989.

      John E. Juergensmeyer and Judson L. Strain, both of Juergensmeyer, Strain & Associates, of Elgin, for appellants.
    Richard J. Larson and Bernard K. Weiler, both of Puckett, Barnett, Larson, Mickey, Wilson & Ochsen, of Aurora, for appellee.
   JUSTICE INGLIS

delivered the opinion of the court:

This action was brought by plaintiffs, David A. Swearingen, by his guardians and next friends William E. and Carole A. Swearingen, and William E. and Carole A. Swearingen, individually, against defendant, Ann Korfist, for negligence and wilful and wanton misconduct for injuries sustained by David Swearingen while on defendant’s property. Summary judgment was granted in favor of defendant. Plaintiffs appeal.

On appeal, plaintiffs contend that the trial court incorrectly applied the obvious-risk doctrine as it applies to minor children injured by a dangerous condition located on a defendant’s property. Plaintiffs further contend that, as a consequence, the trial court improperly entered summary judgment in favor of defendant. We affirm.

Plaintiff, David A. Swearingen, was 15 years old when he was injured on what was known in his neighborhood as “the pulley.” The pulley is a device which consists of a pulley, three lengths of rope, and a newspaper bag. The longest rope is inserted through the pulley, and one end is tied approximately 13 to 20 feet high on the trunk of a tree. The other end of the rope is tied near to the ground on the trunk of another tree approximately 100 feet away. The newspaper bag is tied to the pulley with the shortest rope. The medium sized rope is then tied to the newspaper bag, allowing one to pull the newspaper bag along the rope while staying on the ground and to swing it up to the rider in the tree.

To use the pulley, a rider would climb up the tree where the high end of the rope was tied and climb into the newspaper bag, using it as a seat. The rider would then let gravity carry him down the incline of the rope to the tree at the other end. At the time of David’s injury, on August 9, 1983, the high end of the rope was tied to a large oak tree on the property of Sherman and Carol Ovelman. The lower end of the rope was tied to a tree on defendant’s property.

The pulley was originally constructed in May or June 1981 by defendant’s sons, Chris and Matt Korfist, who were at the time 12 and 10 years old, respectively, and Keith and Jim Ovelman, who were at the time 13 and 11 years old, respectively. The newspaper bag was owned by Matt Korfist, and the rope and pulley were supplied from one of the boys’ homes, another home in the neighborhood, or purchased new by the boys from a local hardware store. When originally constructed, the pulley was located entirely on defendant’s property. In 1982 and 1983, the pulley was located on the property of defendant and the Ovelmans.

David first rode the pulley in 1981 and thereafter rode it numerous times in 1982 and 1983. David, along with the Ovelman and Kor-fist boys, was involved in setting up the device in 1982 and 1983. David helped put it up three times in 1982. In 1983, David contributed money toward the purchase of a new rope and a new pulley. He also went along with Keith Ovelman and Matt Korfist to purchase these items. According to David, a new rope was purchased because the old rope was frayed. In his deposition, David stated that he personally had tied the bag onto the pulley a week or two before his fall. David also stated that he was aware that the pulley could be dangerous and knew that Jim Ovelman had fallen out of the bag before, though the bag itself did not fall on that occasion.

Statements in depositions made by witnesses other than defendant indicate that defendant was aware of the existence of the pulley for more than two years prior to David’s injury.

Carol Ovelman, in her deposition, stated:

“[Defendant] told me she had seen them — had seen them using [the pulley], and she didn’t like it — you know, after the accident she had said she seen them using it, and she didn’t like the idea of it.”

When asked whether she remembered exactly what defendant had said, Ovelman stated:

“Not specifically, just something to the — the idea of she didn’t like them doing it, because she felt that they would fall, any of them, or — ”

On August 9, 1983, David, accompanied by Jim Ovelman, went to ride the pulley. David rode the pulley one time with no incident. As David climbed into the newspaper bag to ride it a second time, knots in the rope which tied the bag to the pulley apparently came loose, causing plaintiff to drop to the ground, striking his head. An examination of the bag and the rope after the injury showed that it had not broken. Following David’s injury, he spent several weeks hospitalized in a coma, and plaintiffs allege permanent injuries resulting therefrom.

Plaintiffs filed a six-count complaint against defendant, alleging negligence, willful and wanton misconduct, and maintenance of an attractive nuisance.

On May 2, 1988, defendant filed a motion for summary judgment on all six counts. The matter was briefed by both parties and argued before the trial court on July 1, 1988. The trial court granted defendant’s motion as to all counts, stating that the counts were “dismissed with prejudice on ‘the obvious risk doctrine.’ ” Plaintiffs timely appealed.

Summary judgment is proper if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. (Guenther v. G. Grant Dickson & Sons, Inc. (1988), 170 Ill. App. 3d 538, 541.) In reviewing the decision of the trial court’s granting summary judgment, the function of the appellate court is to determine whether the record reflects an issue of material fact and, if it does not, whether the trial court correctly entered judgment as a matter of law. 170 Ill. App. 3d at 541.

In a case involving the injury of a minor on the property of the defendant, ordinary principles of negligence apply. (Cope v. Doe (1984), 102 Ill. 2d 278, 285; Kahn v. James Burton Co. (1955), 5 Ill. 2d 614, 624.) As a general rule, landowners have no duty to keep their premises in any particular condition to promote the safety of those who come onto their property without invitation. (Corcoran v. Village of Libertyville (1978), 73 Ill. 2d 316, 325.) However, there is an exception to the rule where the owner knows or should know (1) young children habitually frequent the property; (2) a dangerous agency exists on the land; (3) the dangerous agency is likely to injure the children because they, by reason of their immaturity, cannot appreciate the risk involved; and (4) the expenses of remedying the condition are slight compared to the risk to the children. (Guenther, 170 Ill. App. 3d at 541; see also Kahn, 5 Ill. 2d at 625.) In such cases, the duty upon the landowner is to remedy the condition or otherwise protect children from injury resulting from it. Kahn, 5 Ill. 2d at 625.

It is well settled that, if the condition presents an obvious risk to children which they would be expected to appreciate and avoid, there is no duty to remedy that condition. (Cope, 102 Ill. 2d at 286.) Risks which are considered to be obvious to children include fire, water, and falling from a height. (102 Ill. 2d at 286-87.) However, factors may combine with what would otherwise be an obvious risk such that the risk is no longer considered obvious. (See Scarano v. Town of Ela (1988), 166 Ill. App. 3d 184, 190.) For example, what would otherwise be an obvious risk may not be obvious if the condition is hidden or if there is a distracting influence which makes it likely that the minor will not discover or appreciate the risk. See 166 Ill. App. 3d at 190.

In the instant case, plaintiffs contend that though David and children his age may have had an awareness that there was danger in heights, such knowledge is irrelevant. Plaintiffs contend that what is relevant is what children of David’s age could be expected to know regarding the design and construction of the pulley. Plaintiffs argue that children of David’s age could not be expected to know the danger of the type of rope that was used and its propensity for slipping. Plaintiffs therefore argue that the danger was not obvious. We disagree.

Although plaintiffs contend that David’s individual knowledge of the pulley is irrelevant to the analysis, we find the contrary to be true. Our supreme court in addressing this issue has defined “dangerous condition” as one likely to cause injury “to children generally who, by reason of their age and immaturity, would not be expected to comprehend and avoid the attendant risks.” (Emphasis added.) (Cope, 102 Ill. 2d at 286; see also Corcoran, 73 Ill. 2d at 326.) From this statement, plaintiffs argue that the appropriate focus is on the knowledge of a typical minor of the plaintiff’s age and that focusing on the knowledge of the individual minor involved in the case is inappropriate. We note that neither Cope nor Corcoran specifically addressed whether the individual minor’s knowledge could be considered. However, in Alop v. Edgewood Valley Community Association (1987), 154 Ill. App. 3d 482, 485-87, the court focused on the minor’s activities relating to the dangerous condition and, thus, the minor’s knowledge with regard to those activities. We also note that in Corcoran the court recognized that the rule adopted in Kahn for cases such as this brought Illinois into harmony with section 339 of the Restatement (Second) of Torts (Restatement (Second) of Torts §339 (1965)). (Corcoran, 73 Ill. 2d at 326.) Consequently, we find the comments to section 339 to be persuasive, wherein it is stated:

“The purpose of the duty is to protect children from dangers which they do not appreciate and not to protect them against harm resulting from their own immature recklessness in the case of known and appreciated danger. Therefore, even though the condition is one which the possessor should realize to be such that young children are unlikely to realize the full extent of the danger of meddling with it or encountering it, the possessor is not subject to liability to a child who in fact discovers the condition and appreciates the full risk involved, but none the less [sic] chooses to encounter it out of recklessness or bravado.” (Restatement (Second) of Torts §339, comment m, at 204 (1965).)

(See also Restatement (Second) of Torts §339, illustration to comment m, at 204-05 (1965).) While it would place an undue burden on landowners to focus on a minor’s subjective inability to appreciate a risk where such inability was less than a typical minor of the plaintiff’s age, we find that consideration of the minor’s knowledge is appropriate where the minor has some greater understanding of the alleged dangerous condition than would a typical minor of his age. Our reasoning for this conclusion is that the whole basis of liability in cases such as this is the comparative knowledge of the minor and the landowner. Liability comes about because the landowner has greater knowledge and appreciation of a dangerous coridition than does the minor. Where an individual minor is just as aware of the dangerous condition and can appreciate it to the same extent as the landowner, liability should not be imposed. Consequently, we find that in a case where the minor has special knowledge regarding the alleged dangerous condition, that knowledge should be taken into account.

In addition to knowing the general danger of falling from heights, it is evident from David’s deposition that he was intimately aware of the way in which the pulley was constructed and the materials with which it was constructed. As he stated, he had been present when the rope that was in use at the time of the fall was purchased and he had himself, on other occasions, tied the bag to the pulley. Given these facts, it is evident that David was aware of the dangerous character of the pulley. We therefore find that the trial court did not err in applying the obvious-risk doctrine in granting defendant’s motion for summary judgment.

We note that plaintiffs also appear to argue that David could not have been expected to avoid the risk since it was evident that he and other children were continually using the pulley, and, therefore, the obvious-risk doctrine is inapplicable. We disagree. As we have indicated above, what is important is the fact that the minor can appreciate the risk, not that he will in fact avoid it. See Restatement (Second) of Torts §339, comment to, at 204 (1965).

Even if we were to find that the slipping of the knot was not an obvious risk to David, we would still affirm the summary judgment.

As we have previously noted, the duty of a landowner to a minor is only extended when the landowner knows of the dangerous condition. (See Kahn, 5 Ill. 2d at 625; Guenther, 170 Ill. App. 3d at 541; Restatement (Second) of Torts §339(b) (1965).) In the instant case, plaintiffs argue that defendant knew that the pulley was on her property and foresaw the manner in which David was injured. We agree that the record shows that defendant was aware of the existence of the pulley. We also agree that the record shows that, in a general way, defendant knew that the pulley could be dangerous. However, plaintiffs have not cited us to anywhere in the record, nor do we find any such place, that indicates that defendant was aware of some greater danger than was obvious to David. Specifically, there is nothing in the record that indicates that defendant knew or should have known that the rope had a propensity for coming undone as it did. Defendant did not design the pulley, there is no evidence that she ever tied any of the knots, and there is no evidence that she was aware that a knot had ever come undone before. In short, defendant was no more aware of the danger of the pulley than was David. The clear import of all cases is that liability exists only where the defendant has some knowledge of a dangerous condition that is greater than that of the minor that is injured. In the instant case, such knowledge does not exist. Consequently, we find that summary judgment was appropriate.

In accordance with the foregoing analysis, we affirm the decision of the trial court.

Affirmed.

NASH and WOODWARD, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SCOTT SCHIEFFIELD, a/k/a Scott Von Lehe, Defendant-Appellant.
    Second District
    Nos. 2-87-0451, 2-87-0452, 2-87-0453 cons.
    Opinion filed April 14, 1989.
    — Rehearing denied May 11, 1989.
    G. Joseph Weller and Michael F. Braun, both of State Appellate Defender’s Office, of Elgin, for appellant.

      James E. Ryan, State’s Attorney, of Wheaton (William L. Browers, John X. Breslin, and Gary F. Gnidovec, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE INGLIS

delivered the opinion of the court:

Defendant, Scott Schieffield, a/k/a/ Scott Yon Lehe, appeals from three orders of the circuit court sentencing him in absentia following a plea of guilty to violating the terms of his periodic imprisonment. Defendant’s sole appellate contention is that his sentence should be vacated and this cause remanded for resentencing since the trial court failed to inform him that he was entitled to a hearing to determine whether his absence from the sentencing hearing was willful. We affirm.

Defendant was convicted after entering guilty pleas to burglary (Ill. Rev. Stat. 1983, ch. 38, par. 19 — 1(a)) and leaving the scene of an accident involving a personal injury (Ill. Rev. Stat. 1983, ch. 951/2, par. 11 — 401(b)). Defendant was sentenced to concurrent terms of two years’ probation and 180 days in jail on his conviction of burglary, and 18 months’ probation and 90 days in jail on his conviction of leaving the scene of an accident. Defendant was subsequently indicted on four counts of driving with a revoked license (Ill. Rev. Stat. 1985, ch. 95V2, par. 6 — 303). The State filed an amended petition to revoke defendant’s probation on his prior convictions, and all of the cases were consolidated. Defendant pleaded guilty to violating the terms of his probation and to the four additional counts of driving with a revoked license. The court sentenced defendant to concurrent terms of 18 months’ periodic imprisonment on his convictions of burglary, leaving the scene of an accident, and driving with a revoked license. Defendant’s periodic imprisonment was conditioned upon his having no alcohol in his system at any time.

On March 3, 1987, the State filed a petition to revoke defendant’s periodic imprisonment. The petition alleged that on February 9, 1987, defendant reported to the Du Page County jail under the influence of alcohol or drugs and refused to take a breathalyzer or urine test. The court held a hearing on the petition on March 30, 1987. Defendant admitted that he had consumed alcohol and pleaded guilty to violating the terms of the periodic imprisonment. The court advised defendant that he could be resentenced to a term in the State penitentiary for up to seven years. The court also informed defendant that a sentencing hearing would be held on April 13, 1987. Subsequently, the sentencing hearing was continued to April 16,1987.

On the date of the sentencing hearing, defendant failed to appear in court. Defense counsel informed the court that he had spoken with defendant the previous night and informed him that if he failed to appear at the hearing he would be sentenced in absentia. The court revoked defendant’s periodic imprisonment and sentenced defendant to concurrent terms of five years’ imprisonment for the burglary conviction and two years’ imprisonment for the remaining convictions. After the court imposed the sentences, defense counsel moved to withdraw as defendant’s attorney. The court granted the motion.

On May 7, 1987, defendant appeared in court and was informed of what transpired at the April 16, 1987, hearing. Defendant did not ask the court any questions or try to explain his prior absence. The court admonished defendant that the order was final and that he had a right to appeal his sentences. The court appointed the public defender to represent defendant, and defendant’s counsel then filed a motion asking the clerk to file a notice of appeal and requesting appointment of the State Appellate Defender to represent defendant on appeal. Defendant filed this appeal on May 11, 1987.

Defendant contends that the sentences should be vacated and the cause remanded for a new sentencing hearing because he was not informed that he had a right to a hearing to establish that his failure to appear was not willful. We disagree.

Section 115 — 4.1(e) of the Code of Criminal Procedure of 1963 provides:

“When a defendant who in his absence has been either convicted or sentenced or both convicted and sentenced appears before the court, he must be granted a new trial or new sentencing hearing if the defendant can establish that his failure to appear in court was both without his fault and due to circumstances beyond his control. A hearing with notice to the State’s Attorney on the defendant’s request for a new trial or a new sentencing hearing must be held before any such request may be granted. At any such hearing both the defendant and the State may present evidence.” (Ill. Rev. Stat. 1987, ch. 38, par. 115-4.1(e).)

As defendant correctly notes, this statute does not require the court to admonish a defendant concerning his right to a hearing under this section. However, defendant claims that because his counsel had withdrawn and defendant did not have time to confer with the public defender, he was unaware of his right to a hearing and is now entitled to such hearing. We decline to adopt defendant’s position.

The State argues that defendant waived his right to a hearing under section 115 — 4.1(e) because he appealed his sentences instead of proceeding under the statute. (See People v. Sayles (1985), 130 Ill. App. 3d 882, 888.) When a defendant’s attorney elects to file a notice of appeal rather than request a hearing under section 115 — 4.1(e), such election is binding on the defendant regardless of whether the attorney consulted with the defendant about the decision. 130 Ill. App. 3d at 888.

We conclude that Sayles is dispositive. At the May 7, 1987, hearing, defendant was appointed a public defender who chose to pursue an appeal rather than request a hearing under section 115 — 4.1(e). Therefore, defendant waived his right to a hearing under this section.

The judgment of the circuit court is affirmed.

Affirmed.

NASH and WOODWARD, JJ., concur.


author: JUSTICE REINHARD

text:
    LAWRENCE DECHOW et al., Plaintiffs-Appellants, v. SKO-FED CREDIT, a/k/a Skokie Federal Savings, Defendant-Appellee.
    Second District
    No. 2—88—0541
    Opinion filed April 11, 1989.

      James T. Magee, of James T. Magee & Associates, of Round Lake, for appellants.
    Ira T. Nevel, of Law Offices of Lawrence Friedman, and Robert R. Tep-per, Elyse G. Pearlman, and Elyse M. Skolnick, all of Rosenthal & Schan-field, both of Chicago, for appellee.
   JUSTICE REINHARD

delivered the opinion of the court:

Plaintiffs, Lawrence and Judith Dechow, brought suit in the circuit court of Lake County against defendant, Sko-Fed Credit, a/k/a Skokie Federal Savings, alleging that a loan agreement with defendant provided for the collection of unlawful interest. Plaintiffs sought recovery pursuant to section 6 of “An Act in relation to the rate of interest and other charges in connection with sales on credit and the lending of money” (Interest Act) (Ill. Rev. Stat. 1985, ch. 17, par. 6413). Plaintiffs contend that a term in the agreement providing that upon prepayment of the loan, defendant would be entitled to collect an amount of interest based upon the “Rule of 78’s” was in violation of the Interest Act, subjecting defendant to liability under section 6 of that act.

Plaintiffs and defendant filed cross-motions for summary judgment. The circuit court granted defendant’s motion and denied plaintiffs’. Plaintiffs appeal the entry of summary judgment in favor of defendant and the denial of their own motion for summary judgment.

The only issue raised on appeal is whether defendant was entitled to calculate interest due upon prepayment by use of the Rule of 78’s.

The pleadings and the affidavit of plaintiffs’ attorney establish the following facts. On March 25, 1986, plaintiffs borrowed $49,000 for 15 years at a 15% rate of interest from defendant and executed a promissory note. The loan was secured by a first mortgage on plaintiffs’ personal residence. The promissory note contained the following provision:

“REBATE FOR PREPAYMENT: Borrower(s) may prepay this note in full (by cash, renewal or refinancing, or a new loan) one month or more before the final installment due date and receive a statutory refund or credit of the total of applicable interest for all fully unexpired installment periods as originally scheduled or as deferred which follow the day of prepayment. This statutory computation employs the ‘sum of the digits’ method, also known as the ‘Rule of 78ths’. Prepayment in full will reduce both the Finance Charge and Insurance Charge for the loan.”

In September 1987, plaintiffs were informed that- the payoff balance on the loan was $54,634.60. Plaintiffs’ attorney sent defendant a letter requesting that the payoff balance be computed based upon principal balance plus accrued interest which, he noted, would result in a payoff balance lower by approximately $6,000. Defendant responded that pursuant to the terms of the promissory note, the Rule of 78’s was the proper method for determining the payoff balance. Plaintiffs then filed their complaint, and the circuit court entered summary judgment in favor of defendant, finding that the validity of the Rule of 78’s was determined by the Illinois Supreme Court in Lanier v. Associates Finance, Inc. (1986), 114 Ill. 2d 1, 499 N.E.2d 440.

The Rule of 78’s, also known as the “sum-of-the-digits” method, is a formula for computing an amount of interest due upon early payment of a loan. Under this method, a higher percentage of the total finance charge is attributable to the first months of a loan than is attributable to the last months. (Lanier, 114 Ill. 2d at 6, 499 N.E.2d at 442.) The operation of the rule is best illustrated with an example of a one-year loan payable in 12 monthly payments. First, a total finance charge is calculated based upon payment of the loan over its full term. Next, for this loan payable in 12 installments, the numbers 1 to 12 are added together, equalling 78. If the borrower repays the loan after the first month, he must pay 12/78 of the total finance charge. If the borrower repays after the second month, he must pay 12/78 for the first month plus 11/78 for the second month, and so on. Thus, if the borrower repays after the eleventh month, he will be responsible for 77/78 of the total finance charge. (See Lanier, 114 Ill. 2d at 6-7, 499 N.E.2d at 442.) Application of the Rule of 78’s allows the lender to collect, upon prepayment, an amount greater than the total interest accrued on the principal balance prior to prepayment of the loan. See Lanier, 114 Ill. 2d at 7, 499 N.E.2d at 442.

Plaintiffs argue on appeal that the circuit court erred in finding that the Rule of 78’s could properly be applied to their loan, which was for an amount greater than $25,000 and was secured by a mortgage on residential real estate. Defendant maintains that there is clear authority allowing application of the Rule of 78’s in this situation.

We respond first to defendant’s arguments in support of its right to apply the Rule of 78’s to plaintiffs’ loan. Defendant contends that in Lanier, the Illinois Supreme Court approved of this practice. In Lanier, the plaintiff borrowed $24,961.68 for 10 years, secured by a first mortgage on her home. The loan agreement provided for a refund of the unearned finance charge upon prepayment computed according to the Rule of 78’s. The plaintiff instituted a class action claiming violations of the Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act) (Ill. Rev. Stat. 1981, ch. 121½, par. 261 et seq.). In Lanier, the court held that use of the Rule of 78’s does not constitute a penalty requiring disclosure under the Federal Truth in Lending Act and further concluded that compliance with the Truth in Lending Act is a defense to liability under the Consumer Fraud Act. (114 Ill. 2d at 16-18, 499 N.E.2d at 446-47.) Thus, Lanier merely addresses the applicability of the Consumer Fraud Act to the Rule of 78’s and holds that the rule does not constitute a penalty. Lanier does not address the applicability of the current provisions of the Interest Act and is not authority that no restrictions apply with respect to the use of the Rule of 78’s.

Defendant contends that language in the Lanier opinion suggests that compliance with the Truth in Lending Act is also a defense to liability under the Interest Act. Defendant notes the following passage:

“We next consider whether compliance with the Federal statute is a defense to liability under Illinois’ Consumer Fraud Act. Similar Illinois consumer credit statutes, inapplicable to plaintiff’s loan and not cited in her complaint, provide that creditors and credit agreements that comply with the Truth in Lending Act, its amendments, and regulations issued thereunder, are in compliance with the State acts. ([Citation]; ‘An Act in relation to the rate of interest’ (Ill. Rev. Stat. 1981, ch. 17, par. 6410; [citations].)” (114 Ill. 2d at 16-17, 499 N.E.2d at 447.)

There is no merit in this contention as the section cited does not apply to all the provisions of the Interest Act, but merely to subsections (f), (g), and (h) of section 4a of the Act (Ill. Rev. Stat. 1985, ch. 17, par. 6410), which govern disclosure requirements.

Defendant also notes section 4a (a)(i), which states in pertinent part:

“[T]here shall be no limit on the rate of interest which may be received or contracted to be received and collected by *** a savings and loan association chartered under the Illinois Savings and Loan Act of 1985 or a federal savings and loan association established under the laws of the United States and having its main office in this State ***.” (ill. Rev. Stat. 1985, ch. 17, par. 6410(a)(i).)

First, we note that section 4a is inapplicable to the transaction in the instant case as this section only applies to certain loans of not more than $25,000. Moreover, even if that portion of section 4a quoted above were applicable, while this provision would authorize defendant to charge any rate of interest, we do not interpret it to specifically authorize computation of interest due by any method other than the actuarial method, under which interest due each period bears a direct relationship to the outstanding principal balance during the period.

Rather, in the instant case, what amount defendant may lawfully receive upon prepayment of the loan is governed by section 4 of the Interest Act, alluded to by plaintiffs in their brief, which provides:

“(3) In any contract or loan which is secured by a mortgage, deed of trust, or conveyance in the nature of a mortgage, on residential real estate, the interest which is computed, calculated, charged, or collected pursuant to such contract or loan, or pursuant to any regulation or rule promulgated pursuant to this Act, may not be computed, calculated, charged or collected for any period of time occurring after the date on which the total indebtedness, with the exception of late payment penalties, is paid in full.” Ill. Rev. Stat. 1985, ch. 17, par. 6404(3).

It is clear from this provision that on a loan secured by a mortgage on residential real estate, interest may not be charged for periods of time occurring after the date on which the principal balance is paid. While it has been suggested that use of the Rule of 78’s is a method of calculating interest which has accrued prior to prepayment (see Puritan Finance Corp. v. Vest (1987), 152 Ill. App. 3d 625, 627, 504 N.E.2d 913), we are unpersuaded by this characterization. We note that were the loan in the instant case paid over its full term, interest paid during each period would bear a direct relationship to the outstanding principal balance during that period. It is only when the borrower seeks to prepay the loan that the Rule of 78’s is invoked to attribute a greater portion of the finance charge to the early periods of the loan, resulting in additional interest owing upon prepayment. It is untenable to suggest that interest “accrues” according to the Rule of 78’s, since dining early periods of long-term loans, the amounts constituting interest under the Rule of 78’s for prepayment purposes will generally exceed what has actually been collected according to the payment schedule. It is unrealistic to characterize the Rule of 78’s as determining when interest accrues, as that would lead to the anomalous result that many loans would contain built-in arrear-ages of interest in their payment schedules.

Further, section 4(3) of the Interest Act specifically delineates the rights of a lender upon prepayment of the principal balance:

“For purposes of this Section, a prepayment shall mean the payment of the total indebtedness, with the exception of late payment penalties if incurred or charged, on any date before the date specified in the contract or loan agreement on which the total indebtedness shall be paid in full, or before the date on which all payments, if timely made, shall have been made. In the event of a prepayment of the indebtedness which is made on a date after the date on which interest on the indebtedness was last computed, calculated, charged, or collected but before the next date on which interest on the indebtedness was to be calculated, computed, charged, or collected, the lender may calculate, charge and collect interest on the indebtedness for the period which elapsed between the date on which the prepayment is made and the date on which interest on the indebtedness was last computed, calculated, charged or collected at a rate equal to 1/360 of the annual rate for each day which so elapsed, which rate shall be applied to the indebtedness outstanding as of the date of prepayment. The lender shall refund to the borrower any interest charged or collected which exceeds that which the lender may charge or collect pursuant to the preceding sentence. The provisions of this amendatory Act of 1985 shall apply only to contracts or loans entered into on or after the effective date of this amendatory Act.” (Emphasis added.) (Ill. Rev. Stat. 1985, ch. 17, par. 6404(3).)

Thus, the lender on a loan secured by a mortgage on residential real estate, upon prepayment, may only collect additional interest at the annual rate, essentially prorated over the period since interest on the principal balance was last paid. This, we believe, precludes application of the Rule of 78’s.

Our conclusion is not inconsistent with Lanier. While section 4(3) was in effect at the time of that decision, it was inapplicable to the particular loan involved therein, which had been entered into prior to the effective date of the amendatory act which added subsection (3) to section 4.

While plaintiffs have advanced several other theories in support of their argument that application of the Rule of 78’s to their loan is prohibited, we do not consider these arguments as we find section 4(3) dispositive.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1005(c); Puttman v. May Excavating Co. (1987), 118 Ill. 2d 107, 112, 514 N.E.2d 188.) Here, defendant is not entitled to judgment as a matter of law, and hence summary judgment was improperly entered in its favor.

Plaintiffs further contend that no material issue of fact exists and that they are entitled to judgment as a matter of law on their claim under section 6 of the Interest Act (Ill. Rev. Stat. 1985, ch. 17, par. 6413). Defendant did not file a response to plaintiffs’ motion for summary judgment and, instead, the matter was submitted by the parties to the trial court on plaintiffs’ motion and defendant’s previously filed motion for summary judgment and plaintiffs’ response thereto. The trial court found no genuine issue of material fact was presented and denied plaintiffs’ motion and granted defendant’s motion. The parties, therefore, invited the circuit court to decide the case by summary judgment (see Catalano v. Pechous (1980), 83 Ill. 2d 146, 154-55, 419 N.E.2d 350) on the legal issue presented and that ruling is properly before us.

Section 6 provides, in pertinent part:

“If any person’ or corporation knowingly contracts for or receives, directly or indirectly, by any device, subterfuge or other means, unlawful interest, discount or charges for or in connection with any loan of money, the obligor may, recover by means of an action or defense an amount equal to twice the total of all interest, discount and charges determined by the loan contract or paid by the obligor, whichever is greater, plus such reasonable attorney’s fees and court costs as may be assessed by a court against the lender.” (Ill. Rev. Stat. 1985, ch. 17, par. 6413.)

As the loan agreement specified use of the Rule of 78’s upon prepayment, it provided for the collection of unlawful charges. Therefore, plaintiffs are entitled to recovery in the amount specified by section 6. Accordingly, we enter judgment in plaintiffs’ favor (107 Ill. 2d R. 366(a)) and remand this cause to the circuit court "with instructions to determine this amount.

The order of the circuit court entering summary judgment in favor of defendant is reversed, summary judgment is entered for plaintiffs, and the cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded with directions.

NASH and DUNN, JJ., concur.


author: PRESIDING JUSTICE WOMBACHER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. MARTHA M. MANKE, Defendant-Appellee.-THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. RONALD D. PEPMEYER, Defendant-Appellee.
    Third District
    Nos. 3—88—0253, 3—88—0254 cons.
    Opinion filed April 3, 1989.

      Stephen Reed, State’s Attorney, of Oquawka (Gary F. Gnidovec, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.

      Robert Agostinelli, of State Appellate Defender’s Office, of Ottawa, for appellee Martha M. Manke.
    Christopher Kanthak, of Monmouth, for appellee Ronald D. Pepmeyer.
   PRESIDING JUSTICE WOMBACHER

delivered the opinion of the court:

The State appeals the trial court’s order granting defendants’ motions to suppress evidence.

The defendants, Rob Pepmeyer and Martha Manke, were charged with possession of 30 grams or more of cocaine, unlawful manufacture or possession with the intent to deliver 15 grams or more of heroin, unlawful manufacture or possession with the intent to deliver 15 grams or more of cocaine, unlawful manufacture or possession with the intent to deliver less than 15 grams of heroin, and unlawful manufacture or possession with the intent to deliver less than 15 grams of cocaine.

Lonnie Bigger, Jr., a police officer in Gulfport, Illinois, testified that while on patrol, he received a report of gunshots by the river. He was not provided a description or identity of who was discharging a gun. When he arrived near the river, he noticed a vehicle which belonged to defendant Pepmeyer. Bigger asked Pepmeyer if he was shooting a gun or heard any gunshots, which Pepmeyer denied. Then Bigger asked Pepmeyer if he could search his vehicle. Pepmeyer consented to a limited search of his vehicle, i.e., only permitting Bigger to search for a gun. At this point, Pepmeyer was not free to leave and was not provided any Miranda warnings. Bigger failed to discover a gun within the passenger compartment of the vehicle, so he requested permission of Pepmeyer to search his trunk. Pepmeyer refused this request. Bigger threatened to impound the vehicle and obtain a search warrant if Pepmeyer would not consent to a search of the trunk. Pepmeyer then permitted Bigger only to search for a gun in his trunk. While searching Pepmeyer’s trunk, Bigger discovered drug paraphernalia in a brown paper bag. Bigger claimed the bag was large enough to contain a handgun, but he admitted that he knew the bag did not contain a gun. Defendant Manke was a passenger in Pep-meyer’s vehicle. Pepmeyer was arrested for trespassing and possession of drug paraphernalia, and Manke was arrested for trespassing. After placing the defendants in separate squad cars at the scene, Bigger returned to Pepmeyer’s vehicle and searched the glove compartment without permission or a warrant, discovering small film containers, which contained papers that are used to package drugs. One of the papers contained cocaine. Thereafter, he arrested both defendants for possession of a controlled substance. Neither defendant was yet provided Miranda warnings.

Bigger stated that he intended to arrest Pepmeyer for trespass at the time of the initial search, but he did not effect this arrest at the time of the initial search.

The trial judge held that evidence of consent had not been fully established and Pepmeyer’s consent was involuntarily obtained. He suppressed all the evidence as to both defendants.

The State contends the trial judge erred in granting the defendants’ motions to suppress because Pepmeyer voluntarily consented to the search of his vehicle.

In regard to the validity of the search of Pepmeyer’s vehicle, consent, when given, must be voluntary. (People v. Koniecki (1985), 135 Ill. App. 3d 394, 481 N.E.2d 973.) When deciding whether such consent is voluntary, the court will look to the “totality of the circumstances,” which includes the following factors: (1) the giving of Miranda warnings; (2) the time space between arrest and consent; (3) the presence of intervening circumstances; (4) the purpose of the officer’s illegal acts; and (5) the flagrancy of the officer’s conduct. (Koniecki, 135 Ill. App. 3d at 402.) It is clear that Bigger never provided Miranda warnings to defendants from the time of the initial contact until defendants were placed into formal custody. It was reasonable to believe that Pepmeyer was under arrest and not free to leave, especially when Bigger stated such. Bigger admitted that if Pepmeyer would have attempted to leave on his own volition, he would have immediately arrested Pepmeyer. Any search incident to an arrest is limited to the circumstances which permit the initiation of the search. An arrest for trespass should not and does not allow a search of a trunk of a vehicle. People v. Wetherbe (1984), 122 Ill. App. 3d 654, 462 N.E.2d 1.

In this case, Pepmeyer was coerced into consenting to the search of his trunk, even though he permitted only a limited search. Bigger threatened to have Pepmeyer’s vehicle impounded and a search warrant issued if he did not consent to a search of the trunk. The question of whether the consent was voluntary or the product of duress or coercion, express or implied, is determined from the totality of the surrounding circumstances. (Schneckloth v. Bustamonte (1973), 412 U.S. 218, 36 L. Ed. 2d 854, 93 S. Ct. 2041; People v. Devine (1981), 98 Ill. App. 3d 914, 424 N.E.2d 823.) A court must look to the surrounding circumstances to determine if it is proper for police authorities to threaten seizure of property. (People v. DeLisle (1982), 104 Ill. App. 3d 297, 432 N.E.2d 954.) It is readily apparent that Pepmeyer was not given a free choice and did not voluntarily consent to this search of his trunk.

The trial judge’s determination of the voluntariness of a consent is to be accepted on review unless the ruling of the trial judge is manifestly erroneous. (People v. Billings (1977), 52 Ill. App. 3d 414, 367 N.E.2d 337.) Therefore, this search was invalid and the items seized from this search should be suppressed. The trial court’s decision is correct with respect to defendant Pepmeyer.

Defendant Manke was a passenger in Pepmeyer’s vehicle. Normally, a passenger in an automobile does not have an expectation of privacy in areas of the automobile that would be of no concern to her such as the trunk, glove compartment, and area under the seat. (Rakas v. Illinois (1978), 439 U.S. 128, 58 L. Ed. 2d 387, 99 S. Ct. 421.) However, there have been several decisions released subsequent to Rakas that have held that a passenger in an automobile does have standing to challenge a search of that automobile if the search was precipitated by an unlawful seizure or stop of that individual. (United States v. Durant (8th Cir. 1984), 730 F.2d 1180.) In People v. Kunath (1981), 99 Ill. App. 3d 201, 425 N.E.2d 486, the court held that an automobile passenger has standing to contest a search when the stop occurred without probable cause. Similarly, the court in People v. LaGrone (1984), 124 Ill. App. 3d 301, 464 N.E.2d 712, held that a passenger in a car has standing to challenge the propriety of a stop and resulting search when the stop is found to have occurred without probable cause. In LaGrone, the court held that the evidence must be suppressed as it relates to automobile passengers when there is no probable cause for the original seizure. A reviewing court must look to the record to support a trial court’s finding and affirm that finding if there is any basis for that finding. (People v. Winters (1983), 97 Ill. 2d 151, 454 N.E.2d 299.) There is no reason to doubt that Manke has standing to challenge this search since it has been determined that it was conducted without a valid warrant and without voluntary consent or permission.

By analogy, a passenger in an automobile has standing to challenge a search of property or containers in that automobile which belong to her. A passenger has standing to challenge a warrantless search of her briefcase. (United States v. McGrath (2d Cir. 1979), 613 F.2d 361.) A passenger in a car has standing to challenge a war-rantless search of a shopping bag in the car. (United States v. Salazar (9th Cir. 1986), 805 F.2d 1394.) The trial court was correct in determining that defendant Manke had standing to challenge this search, and because this search was, in fact, invalid, the items seized should likewise be suppressed with respect to her.

The State claims this search was justified because the items seized were in plain view. This drug paraphernalia was not discovered in plain view as the State argues. The drug paraphernalia was found in two places: in a closed brown bag located in the trunk and in the glove compartment, which was secured. Furthermore, Bigger admitted that he knew that a gun was not located in the brown bag.

Based on the foregoing, the circuit court of Henderson County is hereby affirmed.

Affirmed.

HEIPLE and SCOTT, JJ., concur.


author: JUSTICE HEIPLE

text:
    RICK J. RAPER, Plaintiff-Appellant, v. ST. MARY’S HOSPITAL et al., Defendants-Appellees.
    Third District
    No. 3-88-0486
    Opinion filed April 3, 1989.

      Robert G. Peterson, of Robert G. Peterson & Associates, of Chicago (Michael R. Alberts, of counsel), for appellant.
    Richard E Record, Jr., and Rohini Palit of Craig & Craig, of Mattoon, for appellee Harold R. Keegan.
    Robert J. Baron, of Rooks, Pitts & Poust, of Joliet (Pamela Davis, of counsel), for appellee St. Mary’s Hospital.
   JUSTICE HEIPLE

delivered the opinion of the court;

The plaintiff, who was injured while in the defendants’ care, filed one Federal and two State actions against the defendants. The circuit court of Kankakee Comity granted the defendants’ motions and dismissed the most recent complaint after finding it was not timely filed and was not authorized by the relevant statute permitting late filings. The plaintiff has appealed, and we affirm.

On December 7, 1982, Ricky Raper underwent surgery to repair head injuries at St. Mary’s Hospital and was under the care of Dr. Harold Keegan. A surgical sponge was inadvertently left in the plaintiff’s skull, necessitating further surgeries and resulting in permanent damage. On February 9, 1984, the plaintiff filed an amended complaint in United States District Court, adding the defendants herein to a pending civil rights action he had filed against the parties who allegedly inflicted the injuries which necessitated the surgery. On August 3, 1984, the Federal district court dismissed the malpractice claims against the defendants for lack of subject matter jurisdiction. The Federal case continued against other defendants. The plaintiff’s motion to vacate the order of dismissal was denied on February 14, 1986. Thereafter, on April 16, 1986, the Federal court entered a judgment dismissing all defendants in the Federal suit.

In the meantime, on October 16, 1984, the plaintiff filed his first complaint in Kankakee County (No. 84 — L—185) against the malpractice defendants and several of the other parties named in the Federal suit. On June 14, 1985, the plaintiff’s motion for a voluntary nonsuit was granted. All parties agreed to the voluntary dismissal and the cause was dismissed without prejudice.

On June 2, 1986, the plaintiff refiled this action against the malpractice defendants in the circuit court of Kankakee County (No. 86— L — 106). In the complaint, the plaintiff alleged that the cause had been voluntarily dismissed without prejudice on June 14, 1985, and was being refiled within one year of the nonsuit.

The defendants filed motions to dismiss this final complaint, claiming that the plaintiff had violated section 13 — 217 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 13 — 217) by commencing a second new action following a dismissal. The trial court granted the defendants’ motions and denied the plaintiff’s subsequent motion to reconsider. The plaintiff initiated this appeal.

The plaintiff allegedly suffered injuries due to the defendants’ negligent acts on December 7, 1982. The applicable statute of limitations expired on December 7, 1984. (Ill. Rev. Stat. 1985, ch. 110, par. 13 — 212.) However, section 13 — 217 of the Code of Civil Procedure provides:

“In the actions *** where the time for commencing an action is limited, if *** the action is voluntarily dismissed by the plaintiff, or the action is dismissed for want of prosecution, or the action is dismissed by a United States District Court for lack of jurisdiction, then *** the plaintiff *** may commence a new action within one year or within the remaining period of limitation, whichever is greater ***.” Ill. Rev. Stat. 1985, ch. 110, par. 13 — 217.

Thus, a plaintiff may commence a new cause of action within one year of a voluntary dismissal or Federal dismissal for lack of jurisdiction even if the statutory limitations period governing such actions has expired. This section does not permit endless refilings, however. The Illinois Supreme Court recently determined that a plaintiff is entitled to only one additional filing after the first suit is voluntarily dismissed. (Gendek v. Jehangir (1988), 119 Ill. 2d 338.) The parties agree that the rules of law set out above govern this matter, but disagree on the appropriate application of the rules to the facts before us.

The defendants contend that after the Federal claim against them was dismissed for lack of subject matter jurisdiction, the plaintiff necessarily invoked the savings provision of section 13 — 217 in refiling the first action in Kankakee County (No. 84 — L—185). They further contend that the plaintiff’s filing of the second State suit (No. 86 — L— 106) was impermissible because he had already availed himself of the single allowable refiling when he initiated the first action in Kankakee County.

The plaintiff argues first that the Federal suit did not constitute a “filing” within the meaning of section 13 — 217 of the Code of Civil Procedure because the district court dismissed these defendants for lack of pendent jurisdiction rather than subject matter jurisdiction, which is what the statute requires. We disagree. Section 13 — 217 provides that the savings provision is invoked when the action is dismissed by a United States District Court for “lack of jurisdiction.” The plain meaning of the statute’s language is that a dismissal for a lack of any type of jurisdiction in Federal court invokes the one-year refiling rule. Furthermore, the Federal court’s order of dismissal clearly indicates that the malpractice claims were dismissed for lack of subject matter jurisdiction, and the plaintiff acknowledged this in his response to the defendants’ motions to dismiss. Accordingly, the plaintiff’s first argument is unpersuasive.

Alternatively, the plaintiff argues that even if the Federal suit constitutes a filing for purposes of section 13 — 217, filing of his second action in State court (No. 86 — L—106) was permissible because it followed only one final order of dismissal, that being the final and ap-pealable Federal court order dismissing all of the defendants in the Federal suit. The plaintiff contends that because a final and appeala-ble Federal order dismissing all of the defendants was not entered until April 1986, his first filing in Kankakee County (No. 84 — L—185) in October 1984 did not invoke section 13 — 217 and exhaust his right to refile.

The plaintiffs attempt to have this court somehow pretend that the first action filed in Kankakee County was a nullity because it was filed after a final, but not appealable Federal order of dismissal is unavailing. On August 4, 1984, the Federal court dismissed the claims against the defendants herein for lack of jurisdiction. Although the plaintiff claims that the Federal appellate court denied his appeal of that order because the dismissal was not final and appealable as long as the suit remained pending against other defendants, the plaintiff points to nothing in the record to support this assertion, and we found no evidence in the record of either an attempted appeal or a Federal ruling denying an appeal. Furthermore, in its April 16, 1986, order, the Federal court stated that the cause against St. Mary’s Hospital and Dr. Keegan was dismissed pursuant to the order entered August 3, 1984. It appears that the April 16, 1986, order merely incorporated all of the previously entered dismissals into one judgment. Accordingly, we find that the Federal court order entered in August 1984 dismissing the action against the malpractice defendants was final, for purposes of section 13 — 217, so that when the plaintiff filed his first action in Kankakee County, he necessarily invoked the savings provision of that section. The first Kankakee County action (No. 84 — L—185) constituted the one new action the plaintiff was permitted to file following the Federal dismissal, so the court below properly dismissed the second action (No. 86 — L—106) filed in Kankakee County.

The plaintiff also contends that because the first Kankakee County case (No. 84 — L—185) was dismissed without prejudice and because the defendants agreed to the order, he has the right to refile his action and the doctrine of equitable estoppel prevents the defendants from arguing otherwise. We disagree. Initially, there is no merit in the plaintiff’s contention that he should have been permitted to refile his Kankakee County action because the order of voluntary dismissal was without prejudice, meaning it was without prejudice to his right to refile. The supreme court, in a consolidated case in which one of the plaintiff’s motions for voluntary dismissal was granted on a stipulation of the parties, recently held that plaintiffs are entitled to only one refiling pursuant to section 13 — 217 after taking a voluntary dismissal. (Gendek v. Jehangir (1988), 119 Ill. 2d 338.) The court reasoned that a contrary interpretation would foster abuse of the judicial system by allowing a nondiligent plaintiff to repeatedly file and dismiss similar actions and thereby circumvent the applicable statute of limitations. Acceptance of the plaintiff’s argument here would permit, contrary to the court’s mandate in Gendek, multiple refilings following voluntary dismissals. Therefore, the fact that the plaintiff’s filing of the second Kankakee County case followed an order of voluntary dismissal to which the defendants agreed fails to transform it into something other than an impermissible third filing. Regarding the plaintiff’s estoppel argument, we note that the plaintiff had an absolute right to secure a voluntary dismissal without prejudice before trial or hearing began, and the defendants had no basis upon which to object. (Johnson v. United National Industries, Inc. (1984), 126 Ill. App. 3d 181.) Further, the plaintiff has neither pleaded nor proved the necessary elements of estoppel. (See, e.g., Jones v. Meade (1984), 126 Ill. App. 3d 897.) For example, there is nothing in the record to suggest the defendants knowingly concealed material facts or made untrue representations with the intent that the plaintiff would act on them, nor is there any indication that the plaintiff acted on any misrepresentations allegedly made by the defendants. Equitable estoppel was not properly raised in this case and did not preclude the defendants from pursuing their motions to dismiss.

Finally, the plaintiff contends that the court erred in granting the defendants’ motions to dismiss because he has been diligent and the defendants have not been prejudiced. The plaintiff’s diligence and the prejudice to the defendants are not relevant. Whether a plaintiff’s refiling of a cause of action is permitted is based on the language of section 13 — 217, which allows one refiling after a dismissal within one year of the dismissal or within the remaining period of limitations, whichever is longer. The second district recently determined it was error for a trial court to even consider the plaintiff’s diligence in filing. (Tuch v. McMillen (1988), 167 Ill. App. 3d 747, 752.) Accordingly, we find that the factors of prejudice and due diligence are not relevant to our resolution of this appeal.

The trial court correctly granted the defendants’ motions to dismiss because the second case filed in Kankakee County (No. 86 — L— 106) constituted an impermissible third filing of the plaintiff’s cause of action. For the foregoing reasons, the judgment of the circuit court of Kankakee County is affirmed.

Affirmed.

WOMBACHER, P.J., and STOUDER, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. JANEY B. WIREMAN, Defendant-Appellee.
    Third District
    No. 3—88—0450
    Opinion filed April 3, 1989.
    Gordon L. Lustfeldt, State’s Attorney, of Watseka (Judith Z. Kelly, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Leonard Sacks, of Kankakee, for appellee.
   JUSTICE HEIPLE

delivered the opinion of the court:

Illinois State Trooper Kevin Dallas arrested the defendant, Janey B. Wireman, for driving under the influence of alcohol (Ill. Rev. Stat. 1987, ch. 951/2, par. 11 — 501(a)(1)). The State summarily suspended her driver’s license after a breathalyzer test revealed that her breath-alcohol concentration was .22. (Ill. Rev. Stat. 1987, ch. 951/2, par. 11— 501.1.) The defendant subsequently filed a petition to rescind the statutory suspension, alleging among other matters that the arresting officer had not had reasonable grounds to believe that she was driving or in actual physical control of a motor vehicle while under the influence of alcohol. The trial court granted her petition, finding that although the arresting officer had reasonable grounds to believe that the defendant was driving, she was in fact not driving. The State appeals.

At the hearing on the petition, Trooper Dallas testified that at approximately 11:40 p.m., on February 19, 1988, he came across a blue Buick stuck in a ditch along Route 45 near Gilman. Trooper Dallas did not see the car go into the ditch nor did he know how long it had been there. Upon further observation, he noticed that steam was coming from the engine area. Dallas also noticed that the engine was not running and the keys were not in the ignition. He testified that about a half minute after he arrived on the scene, a vehicle proceeding northbound on Route 45 stopped and the defendant exited from the passenger’s side. Dallas testified that as the defendant walked toward him, he asked her whose car was in the ditch and who was driving. According to Dallas, the defendant responded that it was her car and that she was driving to pick up her husband. Trooper Dallas noticed that the defendant smelled of alcohol and appeared intoxicated. He testified that she said she had been drinking since 9 p.m. Dallas further testified that the defendant never told him that someone else had driven the car into the ditch. A license check revealed that the vehicle was registered to the defendant.

The defendant testified that she and her husband had gone out on the evening of February 19, 1988. She stated that while she had been drinking before the accident, her husband was driving when the car went into the ditch. She and her husband then got out of the car and began walking along the road. The couple was picked up by a motorist and given a ride to the K & H Restaurant, which was about IV2 miles down the road.

As a result of an argument at the restaurant, the defendant left and began walking back toward her car. She ultimately received a ride back to her car from a passing motorist. She reiterated that she had not driven her car into the ditch and stated that she did not recall telling the trooper that she had driven it there. She noted that she was scared at the time and that the officer thought that she was the driver.

Wilson Jackson, the defendant’s husband, testified to the same sequence of events, including the fact that he was driving the car when it went off the road. He stated that after his brother picked him up at the K & H Restaurant, the two of them returned to the scene of the accident and discovered that the car was gone. He eventually picked up his wife at the police station, but did not tell anyone there that he was the driver of the car, since his wife was sitting in the lobby when he arrived.

The trial court found that the arresting officer had reasonable grounds to believe the defendant was operating a motor vehicle while under the influence of alcohol. The court further found, however, that the defendant was in fact not the driver of the vehicle and that the legislature could not have intended for a person who was not driving to be subject to a summary suspension of his or her driver’s license. The court therefore rescinded the summary suspension.

On appeal, the State argues that the trial court went beyond the scope of inquiry permitted in a summary suspension hearing. The State contends that the court could only decide whether the peace officer had reasonable grounds to believe the defendant was driving a motor vehicle while under the influence of alcohol. In this regard, the State maintains that the scope of inquiry permitted by section 2— 118.1 of the Illinois Vehicle Code (Ill. Rev. Stat. 1987, ch. 951/2, par. 2 — 118.1) does not include a determination of whether the defendant was in fact driving and therefore the court’s decision was improper. The defendant argues that to sustain the police officer’s finding of reasonable grounds, the court must as a preliminary matter be satisfied that the defendant was driving or in actual physical control of a motor vehicle.

Initially, we note that section 2 — 118.1(b) of the Vehicle Code (Ill. Rev. Stat. 1987, ch. 951/2, par. 2 — 118.1(b)) limits the scope of a hearing on a petition to rescind to the following specific issues:

“1. Whether the person was placed under arrest for an offense as defined in Section 11 — 501, or a similar provision of a local ordinance, as evidenced by the issuance of a Uniform Traffic Ticket; and
2. Whether the arresting officer had reasonable grounds to believe that such person was driving or in actual physical control of a motor vehicle upon a highway while under the influence of alcohol, other drug, or combination thereof; and
3. Whether such person, after being advised by the arresting officer that the privilege to operate a motor vehicle would be suspended if the person refused to submit to and complete the test or tests, did refuse to submit to or complete such test or tests to determine the person’s alcohol or drug concentration; or
4. Whether the person, after being advised by the arresting officer that the privilege to operate a motor vehicle would be suspended if the person submits to a chemical test, or tests, and such test discloses an alcohol concentration of 0.10 or more, and such person did submit to and complete such test or tests which determined an alcohol concentration of 0.10 or more.”

We further note that the provisions of section 2 — 118.1(b) must be read in conjunction with section 11 — 501.1 of the Vehicle Code (Ill. Rev. Stat. 1987, ch. 95V2, par. 11 — 501.1), since section 11 — 501.1 forms the foundation upon which a summary suspension may be entered. (People v. Hamilton (1987), 118 Ill. 2d 153, 514 N.E.2d 965.) Section 11 — 501.1(a) provides that anyone who drives or is in actual physical control of a motor vehicle upon the public highways of this State shall be deemed to have given consent to a chemical test for the purpose of determining the alcohol content of his blood if he is arrested. Furthermore, section 11 — 501.1(d) provides that if the person submits to a test which discloses an alcohol concentration of 0.10 or more, the law enforcement officer shall immediately submit a sworn report to the Secretary of State. Upon receipt of the sworn report, the Secretary of State shall enter the statutory summary suspension. Ill. Rev. Stat. 1987, ch. par. 11 — 501.1(e).

In construing statutes, courts presume that the legislature did not intend absurdity, inconvenience, or injustice. (Illinois Crime Investigating Comm’n v. Buccieri (1967), 36 Ill. 2d 556, 224 N.E.2d 236.) Moreover, a statute will be interpreted so as to avoid a construction which would raise doubts as to its validity. Harris v. Manor Healthcare Corp. (1986), 111 Ill. 2d 350, 489 N.E.2d 1374.

Applying these principles of statutory construction to the interrelated statutes involved in this case, we find that the legislature did not intend to impose a summary suspension upon a person who was not driving or operating a motor vehicle while under the influence of alcohol. The fact that the arresting officer had reasonable grounds to believe that the licensee had been driving may be sufficient to authorize an alcohol-content test, but it is not sufficient to support a summary suspension if it is later determined at a hearing to rescind that the licensee was in fact not driving or operating a motor vehicle. For us to hold otherwise would result in an interpretation of section 2 — 118.1 which would leave a licensee subject to the summary suspension of his license even where he could show that he was not driving or operating a motor vehicle. Such a result would create an intolerable risk of an erroneous deprivation of the privilege to drive, resulting in the denial of the individual’s due process rights. (See Mathews v. Eldridge (1976), 424 U.S. 319, 47 L. Ed. 2d 18, 96 S. Ct. 893.) We will avoid such a construction of this statute, which would raise doubts about its validity. Accordingly, we find that a trial court may properly grant a defendant’s petition to rescind where the defendant shows by a preponderance of the evidence that he was in fact not driving or operating a motor vehicle.

Turning to the issue of whether the instant court’s decision was proper, we note that at a hearing on a petition to rescind a statutory summary suspension, the burden of proof is on the motorist. (People v. Orth (1988), 124 Ill. 2d 326, 530 N.E.2d 210.) A reviewing court will not disturb the trial court’s finding unless it was manifestly erroneous. (People v. Repp (1988), 165 Ill. App. 3d 90, 518 N.E.2d 750.) Based on the record before us, we cannot say that the trial court’s finding was manifestly erroneous. The defendant presented sufficient evidence to support her position that she was not the person who drove her car into the ditch on the night in question.

The judgment of the circuit court of Iroquois County is affirmed.

Affirmed.

BARRY and SCOTT, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CRAIG J. ZNANIECKI, Defendant-Appellant.
    Third District
    No. 3—88—0474
    Opinion filed April 5, 1989.

      Louis E. Olivero & Associates, of Peru (Douglas Olivero, of counsel), for appellant.
    Norman K. Rafferty, State’s Attorney, of Hennepin (Walter P. Hehner, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE WOMBACHER

delivered the opinion of the court;

The defendant appeals the trial court’s denial of his petition to rescind his summary suspension.

On May 7, 1988, the defendant was charged with driving under the influence of alcohol (DUI) and notified of the statutory suspension of his driving privileges. He petitioned the trial court to rescind the statutory summary suspension.

The arresting officer, Bouxsein, stated that the vehicle driven by the defendant ran into a tree. There were two other passengers in the defendant’s vehicle as well as a cooler containing five empty beer cans.

At the hospital, the defendant admitted to earlier drinking beer. The officer noted the defendant’s speech was coherent and he responded to questions appropriately; nevertheless, he smelled of alcohol. After requesting blood from the defendant, Bouxsein arrested the defendant for DUI. He read the defendant his rights from a card entitled “Implied Consent Warnings.” This card was admitted as an exhibit during this hearing. The defendant indicated he understood the warnings.

Following this hearing, the trial judge denied the defendant’s petition to rescind the statutory summary suspension and this appeal follows.

The defendant claims he was not properly warned by the arresting officer of the resulting consequences if he submitted to a blood test which revealed an alcohol concentration (BAC) of 0.10 or greater. We agree and reverse the statutory summary suspension.

According to the Illinois Vehicle Code, a rudimentary issue at a summary suspension hearing is whether the defendant was properly advised by the arresting officer that his privilege to operate a motor vehicle would be suspended if he refused to submit to and complete the test or tests requested or he submitted to a chemical test or tests, and such tests disclosed a BAC of 0.10 or more. Ill. Rev. Stat. 1987, ch. 951/2, par. 2 — 118.1.

Section 11 — 501.1(c) of the Illinois Vehicle Code provides in relevant part as follows:

“A person requested to submit to a test *** shall be warned by the law enforcement officer requesting the test that a refusal to submit to the test will result in the statutory summary suspension of such person’s privilege to operate a motor vehicle as provided in Section 6 — 208.1 of this Code. The person shall also be warned by the law enforcement officer that if the person submits to the test or tests *** and the alcohol concentration in such person’s blood or breath is 0.10 or greater, a statutory summary suspension of such person’s privilege to operate a motor vehicle, as provided in Sections 6 — 208.1 and 11 — 501.1 of this Code, will be imposed.” (Emphasis added.) Ill. Rev. Stat. 1987, ch. 95V2, par. ll-501.1(c).

The requirement that a person be warned under section 11— 501.1(c) of the Vehicle Code is a mandatory one as is evidenced by the word “shall.” Courts generally hold that the word “shall” is mandatory. Andrews v. Foxworthy (1978), 71 Ill. 2d 13, 373 N.E.2d 1332.

In this case, the arresting officer failed to warn the defendant that if he submitted to the blood test, and it revealed an alcohol concentration of 0.10 or more, a statutory summary suspension of his privilege to operate a motor vehicle would issue. The arresting officer testified that he read the defendant the standard implied consent warnings contained on the card he was issued by his department. The warning by the arresting officer read as follows:

“A refusal to submit to the test will result in suspension of a person’s license to operate a motor vehicle for six months for the first such arrest and refusal and suspension for twelve months for the second and each subsequent such arrest and refusal within 5 years.”

The evidence shows the defendant received a warning of the resulting consequences in the event he refused to submit to the blood test; however, the evidence does not show the defendant was warned of the resulting consequences if he submitted to the blood test and it disclosed a BAC of 0.10 or greater. Therefore, the warning provided the defendant was incomplete according to section 11 — 501.1(c) of the Vehicle Code. (Ill. Rev. Stat. 1987, ch. 951/2, par. 11 — 501.1(c).) The absence of this warning of the resulting consequences did not permit or allow the defendant to make an intelligent, knowing, and informed decision in this cause.

In order to properly warn a defendant who is arrested for DUI, he must be completely informed, meaning he should be warned of the consequences of his refusal to submit to the test or tests requested as well as the consequences of submitting to the test or tests requested which disclose a BAC of 0.10 or greater.

Based on the foregoing, the decision of the circuit court of Putnam County denying defendant’s petition to rescind the summary suspension of his driving privileges is hereby reversed.

Reversed.

STOUDER and SCOTT, JJ., concur.


author: JUSTICE SCOTT JUSTICE HEIPLE,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GERALDINE COLTER, Defendant-Appellant.
    Third District
    No. 3—87—0496
    Opinion filed April 7, 1989.

      Frank W. Ralph, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Larry VanDerSnick, State’s Attorney, of Cambridge (John X. Breslin and Nancy Rink Carter, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE SCOTT

delivered the opinion of the court:

After trial by jury in the circuit court of Henry County, Geraldine Colter was found guilty of two counts of theft of property having a value in excess of $300. The defendant was sentenced to two concurrent terms of imprisonment of two years.

The defendant from January 1981 through October 1984 was employed as a secretary-bookkeeper by the Geneseo Good Samaritan Center. In such capacity she received funds in payment for care received by the residents of the facility. Through various ruses used by the defendant when depositing the funds, she siphoned from the funds for her own use an amount not less than $32,330 or more than $38,000.

Coexistent with the criminal proceedings against the defendant was a civil action filed against her by the Good Samaritan Center, which sought judgment in the approximate sum of $38,000. The civil action was settled by a stipulated judgment order whereby the defendant agreed to pay the center $30,000 within one year from the date of such order.

In mitigation of sentence the defendant argued that she was 55 years of age, has no criminal record and that during the course of her criminal prosecution she was hospitalized by a stroke and will be taking stroke-preventive medication for the remainder of her life. She also expressed her willingness to make amends for her conduct by making restitution in the sum of $30,000, which is the amount of the civil judgment against her. The trial court listed restitution as a mitigating factor but stated that the court would give such factor little if any weight and opined that restitution in the case was “speculative.” The trial court continued the sentencing (to June 23, 1987) in order to permit the defendant to make a showing that she had the ability to make restitution. At this hearing the defendant testified concerning arrangements she had made which would enable her to pay $30,000, the sum stipulated to in the judgment order. The substance of the defendant’s testimony was that her husband had agreed to give her a quitclaim deed as to his interest in the family home. That such transfer would be made was a certainty, since the husband’s interest was to be transferred to the defendant pursuant to a legal separation agreement. The property was encumbered by a $3,500 home-improvement loan. The defendant further testified to the effect that if the sale of the property did not provide sufficient funds, her husband would make up the difference by withdrawing funds from his Individual Retirement Account.

All the information relating to restitution was adduced at the sentencing hearing, but as heretofore noted, the trial judge stated that “the compensation that is forthcoming is one of a speculative nature.” The defendant was then sentenced to the terms of imprisonment.

At a subsequent hearing on defendant’s motion to reduce sentence, the matter of the restitution was again raised. The defendant testified that her house was listed with a realtor and that a contract for sale, supported by earnest money, had been entered into. The purchaser had a loan application pending, and if this sale was not consummated, the realtor had two other purchasers for the house. The motion to reduce sentence was denied and again on the ground that restitution was too speculative.

We doubt not the trial court’s sincerity in considering restitution as speculative. However, subsequent events proved that the judge was incorrect. In less than two months after the hearing on the motion to reduce sentence, the defendant paid the $30,000 judgment to the Good Samaritan Center.

In the instant case, after examining the statutory factors to be considered, this court finds it difficult to justify the terms of imprisonment imposed on the defendant. Directing our attention to the Constitution of our State, we find that it mandates that “[a]ll penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship.” (Ill. Const. 1970, art. I, §11.) We do not deprecate the seriousness of the defendant’s offense, but there are a number of statutory factors which cast doubt on the applicability of the sentence imposed on her. Section 5 — 5—3.1 of our Code of Criminal Procedure of 1963 provides as follows:

“1005 — 5—3.1. Factors in mitigation. ***
(1) the defendant’s criminal conduct neither caused nor threatened serious physical harm to another;
(2) the defendant did not contemplate that his criminal conduct would cause or threaten serious physical harm to another;
(3) ***
(4) ***
(5) ***
(6) the defendant has compensated or will compensate the victim of his criminal conduct for the damage or injury that he sustained;
(7) the defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the present crime;
(8) the defendant’s criminal conduct was the result of circumstances unlikely to recur;
(9) the character and attitudes of the defendant indicate that he is unlikely to commit another crime;
(10) the defendant is particularly likely to comply with the terms of a period of probation;
(11) ***
(12) the imprisonment of the defendant would endanger his or her medical condition.” Ill. Rev. Stat. 1985, ch. 38, par. 1005-5-3.1.

Of the 12 statutory factors set forth as being of some weight in withholding or minimizing a sentence of imprisonment, eight of them should have been considered as favoring mitigation when the defendant was sentenced.

We will not perorate further on the sentences imposed, but will merely observe that we fail to see where imprisonment of the defendant will be of any benefit to her and our system of justice. That her imprisonment might serve as a deterrence to others is highly questionable. It is an academic question as to the effects of imprisonment as far as deterrence is concerned. We certainly do not believe that this is a case where imprisonment would provide any significant deterrence.

For the reasons set forth, this case is remanded to the circuit court of Henry County for resentencing.

Reversed and remanded.

WOMBACHER, P.J., concurs.

JUSTICE HEIPLE,

dissenting:

The defendant, Geraldine Colter, was employed as a secretary-bookkeeper for the Geneseo Good Samaritan Center (Center) for over three years. While serving in this position, the defendant altered records at the Center enabling her to abscond with $32,500 of the Center’s funds. Additionally, the defendant stole money from the Center by cashing checks improperly. Records indicate that approximately $3,200 was taken in this manner. Following a jury trial, the defendant was found guilty of two counts of felony theft and was sentenced to concurrent terms of imprisonment of two years, the minimum sentence allowed by statute for a Class 3 felony conviction. Ill. Rev. Stat. 1987, ch. 38, par. 16-l(a)(l); Ill. Rev. Stat. 1987, ch. 38, par. 1005-8-1(6).

Finding that the trial judge failed to adequately examine the statutory factors to be considered in mitigating the defendant’s sentence, the majority reverses and remands for resentencing. I dissent.

In the case at bar, the record establishes that the trial court carefully considered the evidence presented when imposing the sentence. In considering factors of mitigation, the trial judge specifically noted the defendant’s willingness to pay $30,000 in restitution and the defendant’s poor health caused by a recent stroke. The trial judge further noted, however, that the defendant used her position of trust as a bookkeeper at the Good Samaritan Center to steal a substantial amount of money from her employer and that the sentence was necessary to deter others from committing the same kind of crime. The trial court then gave the defendant the minimum sentence allowed under the statute.

The only other sentence the trial court could have imposed would have been probation. The Illinois Supreme Court has ruled that a reviewing court does not have authority to reduce a sentence of imprisonment to one of probation. (People v. Cox (1980), 82 Ill. 2d 268; People v. Bolyard (1975), 61 Ill. 2d 583; People ex rel. Ward v. Moran (1973), 54 Ill. 2d 552.) The reason for this rule of law is that the trial court is in the best position to balance the appropriate factors and reach a determination of whether or not probation should be granted. People ex rel. Ward v. Moran (1973), 54 Ill. 2d 552.

What we have here is a situation where a majority of this appellate court panel feels sorry for the defendant. Such feelings are understandable. This defendant is a person in late middle age who has suffered a stroke and has attempted partial restitution to her own impoverishment. That the defendant is a person to be pitied is to be acknowledged. Having said that, however, it must be noted that most criminal defendants, to some extent, present elements evocative of compassion and pity. To be sure, the trial judge considered and responded fully to such considerations when he imposed the minimum sentence of imprisonment mandated by law.

Inarguably, sentencing is the function of the trial court, and a reviewing court should not substitute its judgment absent an abuse of the trial court’s discretion. (People v. Cox (1980), 82 Ill. 2d 268.) A sentence within statutory limits should not be reduced merely because the reviewing court would have balanced the appropriate factors differently and imposed a different penalty. People v. Perruquet (1977), 68 Ill. 2d 149.

As per the rule of law established by our supreme court in Cox, this reviewing court has no authority to mandate a sentence of probation in a case where the trial judge has imposed the minimum penitentiary sentence. Neither should this court attempt to engage in judicial arm twisting in an effort to impose that result on the trial court. What we have here is a not too subtle evasion, both of a rule of law of our own supreme court and of the principle of stare decisis. In so acting, this appellate court, by its majority decision, arrogates to itself sentencing powers which reside only in the trial court and which have been specifically denied to the appellate court. Beyond that, it places the trial court in the untenable position of being pressured to reduce a minimum penitentiary sentence to a sentence of probation, and in so doing to follow a decision of this appellate court in derogation of judicial precedent and of a rule of law of our own supreme court. Accordingly, I dissent.