text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANTHONY SHEPPARD, Defendant-Appellant.
    Fifth District
    No. 5—88—0008
    Opinion filed January 17,1990.
    Daniel M. Kirwan, of State Appellate Defender’s Office, of Mt. Vernon, and Lori Lanciani Mosby, of State Appellate Defender’s Office, of Springfield, for appellant.
    John Baricevic, State’s Attorney, of Belleville (Kenneth R. Boyle, Stephen E. Norris, and Debra A. Buchman, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE RARICK

delivered the opinion of the court:

Defendant, Anthony Sheppard, was convicted after a jury trial of armed robbery and sentenced by the circuit court of St. Clair County to 12 years’ imprisonment. Defendant appeals his conviction and sentence.

On the evening of December 30, 1986, at approximately 9 p.m., a man walked into Mick’s Liquors in Lebanon, Illinois, looked around the store, and left. He returned shortly thereafter with another man. Both were carrying small caliber handguns. The two men positioned themselves by the cash register and announced they intended to rob the store. The owner of the store attempted to open the cash register but was unable to do so. One of the men who earlier had positioned himself behind the counter shot the owner in his thigh, took some lottery proceeds off the counter and ran out with the other man. Neither the owner nor his wife was able to describe the assailants in any detail. The owner’s wife had been sitting during the course of the robbery in a chair behind the man who shot her husband. The police suspected an individual named Wendell Taylor was involved in the robbery. Taylor denied any involvement, and neither the store owner nor his wife could identify him in a lineup of possible suspects. Taylor was picked up later on unrelated charges, however, and at that time agreed to tell the police what he knew about the robbery. Taylor informed the police he, defendant, and a man nicknamed “Pig” drove to Lebanon to commit a robbery. Defendant and Pig robbed the store while he drove the car. Taylor claimed defendant told him he shot a man because the register would not open. Taylor’s story was corroborated in part by the Churches, a couple who live approximately a block away from Mick’s Liquors. The Churches noticed a car with three men inside parked in front of their house at approximately 9 p.m. on December 30. Two of the men ran down the street while the third stayed by the car. The man standing next to the car later backed the car up the street, picked up the other two men and drove away. The Churches were unable to identify the men, but the description of the car matched that of the vehicle Taylor claimed to be driving that evening. Defendant was arrested and identified by the store owner as the man who shot him. The owner’s wife, however, could not identify defendant. Defendant denied any participation in the robbery. He claimed he had been in the liquor store several times recently as he was dating a woman in the area and believed that was the reason why the store owner recognized him. He also testified the only person he knew nicknamed Pig was a female. The jury chose not to believe defendant’s exculpatory testimony.

Defendant first argues on appeal the prosecutor’s closing argument denied him a fair trial. Defendant believes the prosecutor not only mischaracterized the evidence but also misstated the law with regard to the burden of proof and the presumption of innocence. Specifically, defendant points out the prosecutor erroneously explained the reason why the store owner’s wife was not able to identify defendant was because she was seated behind him and could not see his face when in fact she saw the two men as they entered the store. Defendant believes the prosecutor’s explanation removed any doubt as to defendant’s identification as a participant in the crime. He further asserts the prosecutor improperly stated defendant had a motive to lie and knew he had to say something on the stand to refute the others’ testimony. According to defendant, such comments undermined his presumption of innocence and misconstrued the burden of proof. We disagree.

It is well established that prosecutors are afforded wide latitude in closing argument, and absent clear abuse of discretion, a trial court’s determination as to the propriety of such arguments will not be disturbed on review. (See People v. Thompkins (1988), 121 Ill. 2d 401, 445-46, 521 N.E.2d 38, 57; People v. Lasley (1987), 158 Ill. App. 3d 614, 625, 511 N.E.2d 661, 670.) Even improper remarks will not result in a reversal of a defendant’s conviction unless they represent a material factor in that conviction. Thompkins, 121 Ill. 2d at 445, 521 N.E.2d at 57; People v. Jung Oh Kim (1986), 148 Ill. App. 3d 191, 197, 498 N.E.2d 831, 836.

Initially, we note defendant here failed to object either at trial or in a post-trial motion to the alleged improprieties in the prosecutor’s closing argument. Defendant therefore has waived any possible objections. (People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124, 1130; People v. Collins (1985), 106 Ill. 2d 237, 275, 478 N.E.2d 267, 283.) Defendant recognizes this but argues that collectively the prosecutor’s comments constituted plain error. And if not, defendant then contends he was denied effective assistance of counsel. Neither is the case here. Not only did the comments not constitute plain error so as to threaten deterioration of the judicial process or deny defendant a fair trial (see People v. Albanese (1984), 104 Ill. 2d 504, 518, 473 N.E.2d 1246, 1251; People v. Baynes (1981), 88 Ill. 2d 225, 230-31, 430 N.E.2d 1070, 1072-73), they were not erroneous at all. The prosecutor’s comments all fell within the bounds of proper argument. First, the prosecutor did not misstate the evidence submitted by the store owner’s wife. She testified she really did not pay attention to the two men as they entered the store, and that she was unable to identify any of the men in the lineup as the man who shot her husband because she never saw his face. She unequivocally stated she was sitting in back of the one that had held the gun on her husband. The prosecutor’s argument constituted nothing more than a permissible inference from this evidence. (See, e.g., People v. Reyes (1981), 102 Ill. App. 3d 820, 833, 429 N.E.2d 1277, 1288. Cf. People v. Young (1975), 33 Ill. App. 3d 443, 337 N.E.2d 40.) Secondly, the prosecutor did not negate defendant’s presumption of innocence before the jury. During closing argument, defendant challenged the veracity of all of the State’s witnesses in an attempt to bolster his own credibility after introducing no other evidence at trial to refute their testimony. Most notably, defendant claimed he was dating a woman in the area who often sent him to Mick’s, but defendant never produced such a woman at trial to verify his story. While in general it is improper to accuse a defendant of lying, such an inference may be stated when the facts indicate he is being untruthful. (People v. Mitchell (1975), 35 Ill. App. 3d 151, 164, 341 N.E.2d 153, 163.) The comments made here concerning defendant’s lack of credibility were within the bounds of propriety under such circumstances and did not constitute error in the context in which given. (See Albanese, 104 Ill. 2d at 522, 473 N.E.2d at 1253; People v. Slaughter (1980), 84 Ill. App. 3d 1103, 1113-14, 405 N.E.2d 1295, 1304. See also People v. Agee (1980), 85 Ill. App. 3d 74, 88, 405 N.E.2d 1245, 1256. Cf. People v. Weathers (1975), 62 Ill. 2d 114, 120-21, 338 N.E.2d 880, 883-84.) And, because none of the complained-of statements were erroneous, counsel was not ineffective for failing to object to them or raise them in a post-trial motion. Moreover, assuming arguendo all of the prosecutor’s comments were improper, none of them constituted reversible error. Defense counsel’s failure to object to them would not have altered the result in this case in light of all the evidence presented. Defendant was positively identified as the assailant by one witness while another witness corroborated the fact defendant was at the store and intended to rob it on the night of the offense. Defense counsel’s failure to file a post-trial motion raising defendant’s current contentions when considered in the context of his overall performance did not prejudice defendant or affect the outcome of his trial. (See Collins, 106 Ill. 2d at 273-74, 478 N.E.2d at 283; Albanese, 104 Ill. 2d at 527, 473 N.E.2d at 1256.) We further note defense counsel did in fact move for a mistrial on the grounds of the prosecutor inferring during closing argument defendant was lying. The trial court correctly denied this motion. The prosecutor’s comments simply were not improper under the circumstances presented here.

Defendant also argues on appeal the court erred in considering good-time credit in fashioning his sentence. Defendant believes the legislature already considered the effect of good-time credit in establishing the range of penalties for all offenses, and therefore, when the court took this factor into consideration, defendant contends his actual sentence was, in effect, doubled, thereby subjecting him to disparate treatment. Defendant refuses to acknowledge, however, that the trial court made no mention of good-time credit until after pronouncing defendant’s sentence and after informing him of his right to appeal. The court’s comments exhibit no intention to double defendant’s sentence but rather appear to be an attempt to explain the entire process and to lessen the impact of the sentence imposed on defendant. While the court believed the minimum sentence was inappropriate in light of defendant’s shooting a defenseless man merely because he was unable to open the cash register, the court also believed the maximum sentence possible was inappropriate because defendant’s prior criminal history involved no violence. The court therefore chose to sentence defendant to 12 years’ imprisonment. The court simply considered no improper factor in the fashioning of defendant’s sentence in this instance. The trial court sitting both through the trial and the sentencing hearing had a far superior opportunity to make a sound determination as to what defendant’s punishment should be. (See People v. Perruquet (1977), 68 Ill. 2d 149, 154, 368 N.E.2d 882, 884; People v. Peter (1976), 43 Ill. App. 3d 1068, 1070, 358 N.E.2d 31, 33.) It is not our function to serve as a sentencing court, and absent any abuse of the trial court’s discretion, we will not alter the sentence imposed. (Perruquet, 68 Ill. 2d at 153-56, 368 N.E.2d at 883-85.) We see no reason here to disturb defendant’s sentence. See People v. Meeks (1980), 81 Ill. 2d 524, 537, 411 N.E.2d 9,15.

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

Affirmed.

LEWIS, P.J., and CHAPMAN, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE LEWIS

license: Public Domain

text:
    GRACE JAMES et al., Plaintiffs-Appellees, v. BOARD OF EDUCATION OF SCHOOL DISTRICT NO. 189, East St. Louis, Illinois, Defendant-Appellant (Ressie Parram, Plaintiff).
    Fifth District
    No. 5—88—0435
    Opinion filed January 18, 1990.

      Edward J. Welch, of Welch & Bush, RC., of East St. Louis, for appellant.
    Jack Carey, of Belleville, for appellees.
   PRESIDING JUSTICE LEWIS

delivered the opinion of the court:

The defendant, Board of Education, School District No. 189, East St. Louis, Illinois (hereinafter District No. 189), appeals the decision of the trial court ordering reinstatement of five of the six plaintiffs who brought this suit to the position of tenured teacher within District No. 189 and awarding damages to which the parties stipulated. These five plaintiffs, Grace James, Shirley Spranaitis, Myma Smith, Ednar Avant, and Carlynn Helbig, are registered nurses who had taught in a practical nursing program paid for and operated by District No. 189. When each of the five was hired to teach in the program, she obtained a provisional vocational certificate. While each was employed as an instructor in the program, she completed further education and obtained a high school certificate. In 1983 the practical nursing program was eliminated for financial reasons, and each of the plaintiffs was honorably dismissed. At the time the program was eliminated each plaintiff had been teaching in it full time well over two consecutive school terms. When the plaintiffs were not recalled to teach, they brought this suit, contending that they were tenured members of District No. 189 who had more seniority than some other persons who were recalled. The defendant presents two issues for review: (1) whether an individual who holds a provisional vocational certificate acquires tenure after two years of service with a school district where such individual never served as a probationary teacher in grades K through 12 and did not hold a regular teacher’s certificate until periods of time ranging from four years until the year in which the adult education program was discontinued and (2) whether back pay should be awarded to teachers who delayed in bringing a lawsuit to resolve their status as tenured teachers.

On November 14, 1984, the plaintiffs filed their complaint, each seeking reinstatement, in a count for mandamus, to the position of tenured teacher and damages for lost wages for the 1983-84 academic year until the date of reinstatement. In its answer the defendant raised an affirmative defense of laches, based on the period of 19 months between the time in April of 1983 when the plaintiffs received notice of their honorable dismissal and the time they brought suit.

The facts are largely undisputed. At a bench trial the plaintiffs testified in relevant part as follows. Shirley Spranaitis stated that she was employed by the defendant for 19 years from February of 1964 until approximately September of 1983. She has a bachelor’s degree in nursing and a master’s degree in education, specializing in guidance. She is a certified teacher in Illinois for grades 6 through 12, having received her certification on August 11, 1980. She stated that her certificate permits her to teach health and science at the junior high level. Like the other plaintiffs, prior to receiving that certificate, she was employed by the defendant under a provisional vocational certificate. In “the late 60’s” while employed by the defendant she taught high school seniors “health occupations” for one year. During that year she did not teach in the practical nursing program. Students in the practical nursing program were about 30 years of age and were required to have a high school diploma or a GED, that is, an equivalency diploma. The students who completed the program successfully received a diploma signed by the superintendent of schools. Instructors in the program had “lesson plans, syllabus, course of study, curriculum,” evaluated the students’ performance, and assigned grades. She was not, she said, required to perform hall, playground, or cafeteria duty, stating that the students in this program did not require such monitoring.

Grace James testified that she began to work for the defendant in approximately December of 1970 or January of 1971. She was hired to teach in the practical nursing program. Her first assignment, however, was to teach “health occupations,” apparently to high school students. In June of 1971 she began to teach in the practical nursing program, where she taught until her dismissal in 1983. She received a bachelor’s degree in education in 1979 and a master of science degree in education in 1985. She received her teacher’s certificate on March 3, 1982, for grades 6 through 12. She stated that although she had completed all the requirements for the certificate in 1979, she had not applied for it until about three years later; she got the certificate, she said, because by that time there was talk that the practical nursing program might be discontinued.

Ednar Avant was hired by the defendant in February of 1968. In August of 1983 she received her teaching certificate, allowing her to teach science, for grades 6 through 12. She testified that she taught junior and senior high school ■ students “health occupations” from 1969 to 1971.

Carlynn Helbig testified that she worked for the defendant from 1955 to 1956 and again from 1964 to 1972, when she left for four months. She was rehired in 1972 and worked until June 30, 1983. She got her teaching certificate in 1979 for grades 6 through 12 in the areas of health education and social studies. In 1970 she taught practical nursing to high school students.

Myrna Smith was first employed by the defendant in July of 1971 as a practical nursing instructor. She testified that in order to teach in that capacity “under the law you had to be certified within a given period of time, and within that period of time I did have [a] provisional vocational teaching certificate.” In 1979 she received her teaching certificate for grades 6 through 12. Since January of 1986 she had been teaching seventh-grade science for the defendant.

Ressie Parram testified that she was hired by the defendant in September of 1970 as an instructor in the practical nursing program. She had a provisional vocational certificate until 1983 but, unlike the other plaintiffs, never obtained any other kind of certificate.

The plaintiffs were paid out of the accounts of District No. 189. Defendant’s counsel explained to the trial court that initially the plaintiffs were paid according to a “vocational scale,” but “when they got their degrees they were switched to the degree scale, and they remained on the degree scale until they stopped working.” He added that the file of each plaintiff

“would reflect that the teachers, while they were in the LPN practice, as non-degree people, they were put on a vocational scale. After they got degrees pursuant to negotiations between Local 1220 and the superintendent, Mr. Ducksworth, the evidence will be that the district agreed that they would be paid just as other degree people on that particular scale. That’s the way they were paid. That’s our testimony.”

Testifying for the defendant, Leroy Ducksworth, the superintendent of schools of District No. 189, stated that the practical nursing program in which the plaintiffs served as instructors came under the direct supervision of the State Department of Registration and Education. Each student participating in the program was charged $150, a figure that was later increased to $300. The witness described the common school fund as that fund

“embracing] the education of children ordinarily from 6 to 16. In the case of special education, children from 3 to 21. It is also a fund derived partially from the attendance, what we call ADA, average daily attendance, based on the number of pupils attending school.”

The students in the practical nursing program were not, he said, counted in the daily attendance figure to fund the schools. The defendant stipulated that the plaintiffs were in the collective bargaining unit represented by District No. 189. The witness explained why the plaintiffs began to be paid according to their educational achievements as opposed to a “vocational instructor’s schedule”:

“Well, I think it more or less was a board prerogative. Vocational teachers came into the system on the basis of their experiential background and some education. But under the law they’re required once they’re hired under provisional vocational certificate to continue their school. So with that provision, and because the contract simply provided for it, the Board of Education paid or reimbursed teachers for tuition, and also when vocational teachers reached degree status, they put them on degreed salaries.”

In addition to the six plaintiffs, about 60 to 70 teachers from grades 1 through 12, some of whom were not tenured, received notice in April of 1983 of their dismissal pursuant to a reduction in force occasioned by adverse financial circumstances. Many, if not all, of those who taught grades 1 through 12 were, however, recalled for the 1983-84 academic year, whereas none of the plaintiffs were. The witness testified that there were no vacancies that any of the plaintiffs could have filled without the need to “bump” six other teachers who were, in fact, recalled. He stated that in April of 1985 District No. 189 had four positions open for four of the six plaintiffs.

In its judgment the trial court noted that section 24 — 12 of the School Code (Ill. Rev. Stat. 1983, ch. 122, par. 24 — 12), pertaining to the removal or dismissal of teachers in contractual continued service, “does not distinguish a common school system from another program funded by the District.” The court stated further that while it was

“not unsympathetic to the dilemma faced by the Defendant at the conclusion of the 1983 academic year, it is evident that all of the Plaintiffs had been employed full-time by the Defendant for more than two consecutive terms and thus obtained the status of contractual continued service, which is also known as tenure. Moreover, five were certified by the State of Illinois through the Regional Superintendent of Schools as qualified to teach within School District 189. The exception to this certification requirement was the Plaintiff, Ressie Parram. Although Ms. Parram has a Bachelor of Arts Degree, she maintained only a provisional nursing certificate.”

Section 24 — 12 provides in part that “[i]f the board has any vacancies for the following school term or within one calendar year from the beginning of the following school term, the positions thereby becoming available shall be tendered to the teachers so removed or dismissed so far as they are legally qualified to hold such positions.” (Ill. Rev. Stat. 1983, ch. 122, par. 24 — 12.) The court held that all six plaintiffs had attained the status of contractual continued service, that is, tenure. It held further that, although Ressie Parram had tenure, she was not certified to teach, having maintained only a provisional vocational certificate. As we have said, the court ordered the other five plaintiffs reinstated to the position of tenured teacher within District No. 189 and awarded damages that were subsequently modified in a later order of the court according to the stipulation and agreement of the parties. The court denied the defendant’s affirmative defense of laches, pointing out that the defendant had introduced no evidence to suggest it had been materially prejudiced by the passage of time.

With respect to the first issue presented for review, whether the plaintiffs had attained the status of tenure, the defendant contends that teachers do not acquire tenure unless they serve a two-year probationary period as a teacher after receiving their “teacher’s certificate.” In its brief defendant states that “[i]n order to be hired and serve as an instruction [sic] in the LPN Program, each of the plaintiffs was required to hold a ‘provisional vocational certificate,’ and none was required to hold a regular teacher’s certificate.” Defendant argues that the plaintiffs never performed as teachers in the common school fund, were never observed to determine whether they could prove themselves as teachers in the common school fund, and therefore did not enter into contractual continued service. Defendant urges that in order to enter upon contractual continued service a teacher must have taught for two consecutive school terms in grades K through 12.

Section 24 — 11 of the School Code (Ill. Rev. Stat. 1983, ch. 122, par. 24 — 11) provides that

“[a]ny teacher who has been employed in any district as a full-time teacher for a probationary period of 2 consecutive school terms shall enter upon contractual continued service unless given written notice of dismissal stating the specific reason therefor, by registered mail by the employing board at least 60 days before the end of such period.”

Section 24 — 11 defines “teacher” as follows:

“As used in this and the succeeding Sections of this Article, ‘teacher’ means any or all school district employees regularly required to be certified under laws relating to the certification of teachers ***.” Ill. Rev. Stat. 1983, ch. 122, par. 24—11.

It is for the legislature, not the court or the school board, to determine the basis upon which tenure may be granted (Evans v. Benjamin School District No. 25 (1985), 134 Ill. App. 3d 875, 480 N.E.2d 1380) and to determine who should be embraced within the scope of the purpose of the law relating to teacher tenure (McNely v. Board of Education (1956), 9 Ill. 2d 143, 137 N.E.2d 63). The court must follow the statute according to its terms. (Strejcek v. Board of Education (1979), 78 Ill. App. 3d 400, 397 N.E.2d 448.) To gain tenured status the School Code requires that a teacher must first complete two consecutive yearly school terms as a full-time teacher without receiving a notice of dismissal. (Verdeyen v. Board of Education (1986), 150 Ill. App. 3d 915, 501 N.E.2d 937; Evans v. Benjamin School District No. 25 (1985), 134 Ill. App. 3d 875, 480 N.E.2d 1380.) By its plain language section 24 — 11 defines a “teacher” as any school employee regularly required to be certified under laws pertaining to the certification of teachers. It was the policy of the legislature to include within the law pertaining to tenure only those employees required to be certified. McNely v. Board of Education (1956), 9 Ill. 2d 143,137 N.E.2d 63.

The record in the instant case and the statement of the defendant in its brief indicate that none of the plaintiffs could have served as instructors in the practical nursing program operated by District No. 189 without holding, as each did, a provisional vocational certificate, pursuant to section 21 — 10(C)(1) of the School Code (Ill. Rev. Stat. 1983, ch. 122, par. 21 — 10(C)(1)). Section 21 — 1 of the School Code (Ill. Rev. Stat. 1983, ch. 122, par. 21 — 1), pertaining to the certification of teachers, provides in relevant part that

“[n]o one may teach or supervise in the public schools nor receive for teaching or supervising any part of any public school fund, who does not hold a certificate of qualification granted by the State Board of Education or by the State Teacher Certification Board and a regional superintendent of schools as hereinafter provided ***.”

Section 1 — 3 of the School Code (Ill. Rev. Stat. 1983, ch. 122, par. 1 — 3) provides that “[t]he terms ‘common schools’, ‘free schools’ and ‘public schools’ are used interchangeably to apply to any school operated by authority of this Act,” which is known, pursuant to section 1 — 1 (Ill. Rev. Stat. 1983, ch. 122, par. 1 — 1), as the School Code. In the instant case District No. 189 is operated by the authority of the School Code, and District No. 189, in its own words as stated in its brief, in turn, “operated” the practical nursing program in question, employed the plaintiffs to teach as instructors therein, and paid the plaintiffs, as its employees, out of its own accounts. Thus, we conclude that the plaintiffs were required to hold a certificate of qualification to teach in the practical nursing program operated by the defendant.

We note that the plaintiffs here differ from the plaintiff in Kuykendall v. Board of Education (1982), 111 Ill. App. 3d 809, 444 N.E.2d 766, who had served as a business education teacher in an adult training program wholly federally funded under Title I of the Comprehensive Employment and Training Act of 1973 (CETA) (29 U.S.C. §801 et seq. (1976)). In Kuykendall the defendant had paid the plaintiff’s salary and benefits but had been reimbursed by the Federal government. No such reimbursement occurred in the instant case. The court in Kuykendall held that, when a school district employee teaches in a wholly federally funded program, such employment cannot be considered part of a probationary year.

The School Code required that the instant plaintiffs hold a certificate of qualification in order to teach in the program operated by District No. 189, and the plaintiffs did so. The plaintiffs were employed full time in District No. 189 for a probationary period of two consecutive years, without receiving a notice of dismissal, as teachers, that is, as employees regularly required to be certified under laws pertaining to the certification of teachers. Inasmuch as the plaintiffs meet the statutory requirements set forth by the legislature in section 24 — 11 pertaining to entry upon contractual continued service, we hold that they had entered upon contractual continued service and had, thus, acquired tenure prior to the defendant’s serving them with notice of their honorable dismissal.

With regard to the other issue raised on appeal by the defendant, concerning the doctrine of laches, the record shows that immediately upon receiving notice of their honorable dismissal, the plaintiffs attempted to secure places for themselves in the employ of the defendant during the upcoming school year. Through the East St. Louis Federation of Teachers, Local 1220, they sought to file a grievance upon the failure of District No. 189 to rehire them. Following various unsuccessful efforts to resolve the matter to the satisfaction of the plaintiffs, they brought suit. Passage of time by itself does not bar relief in the bringing of a complaint for mandamus, and if a defendant does not establish that he has been materially prejudiced by the delay, the plaintiff is not guilty of laches. (Richter v. Collins-ville Township (1981), 97 Ill. App. 3d 801, 423 N.E.2d 549.) Facts constituting laches depend on the particular circumstances of each case. (Richter v. Collinsville Township (1981), 97 Ill. App. 3d 801, 423 N.E.2d 549.) The determination of the existence of the defense of laches is left to the sound discretion of the trial court, and its decision ought not to be overturned unless there is a clear showing of an abuse of discretion. (Richter, 97 Ill. App. 3d 801, 423 N.E.2d 549.) Here, the record does not suggest that the defendant was materially prejudiced by any delay by plaintiffs in filing suit. Nor does it show that the trial court abused its discretion in denying the defense of laches. Hence, we may not disturb its decision in this regard.

Affirmed.

RARICK and CHAPMAN, JJ., concur.


text:
      In re MARRIAGE OF ROBERTA M. HARSY, n/k/a Roberta M. Vancloostere, Petitioner-Appellee, and ROBERT E. HARSY, Respondent-Appellant.
    Fifth District
    No. 5—88—0474
    Opinion filed January 18, 1990.

      J. Mark Maclin, of Du Quoin, for appellant.
    Mary Lou Rouhandeh, of Feirich, Schoen, Mager & Green, of Carbon-dale, for appellee.
   PRESIDING JUSTICE LEWIS

delivered the opinion of the court:

Respondent, Robert E. Harsy, appeals the circuit court’s post-decree judgment in which the court ordered the respondent to establish a $10,000 individual trust for each of his two minor children for the purpose of paying their college expenses and denied the respondent’s petition for a reduction of his child support payments. The respondent’s appeal only concerns the validity of the court’s order directing the establishment of the two trusts.

The respondent and the petitioner, Roberta M. Harsy, n/k/a Roberta M. Vancloostere, were married on June 8, 1974. Two children resulted from the marriage: Darren, born on February 19, 1976, and Adrienne, born on June 29, 1979. The parties were divorced on April 19, 1983, and in the divorce decree, the petitioner was awarded the custody of the two minor children and the respondent was ordered to pay the petitioner child support in the amount of $350 per month per child and to pay maintenance in the amount of $600 per month for 24 months.

Following entry of the divorce decree in April 1983, and until the time of the present dispute between the parties, numerous petitions were filed for post-decree relief. In June of 1983, the respondent filed a petition for the reduction of his child support payments and the elimination of his maintenance payments. Subsequently, the circuit court denied the respondent’s request for reduction of his child support payments, but because the respondent had purchased the marital home from the petitioner, the court granted the respondent’s request that he no longer be required to pay the petitioner maintenance.

The next matter considered by the circuit court was the petitioner’s petition for rule to show cause filed on June 20, 1984, in which the petitioner requested that the respondent be held in contempt of court, as he was in arrears in his child support payments. Before a hearing was held on the petitioner’s petition, the respondent filed a second petition for a reduction of his child support payments. The court, in its order of July 17, 1984, found that the respondent was in contempt of court as he was arrears in his payment of child support and ordered the respondent to pay the petitioner $1,757.25 for child support arrearages and to pay $405 for her attorney fees. The court denied the respondent’s petition for modification of his child support payments.

On April 28, 1987, the petitioner filed a petition for educational expenses in which she requested that the respondent be ordered to set up a fund for the two children, then 11 and 7 years of age, for their college expenses. She also filed a petition to remove the children from the State and a petition for an increase in child support. Shortly thereafter, the respondent filed a petition for reduction of child support and a petition for a change of the children’s custody; however, the circuit court dismissed the respondent’s petition for reduction of child support with prejudice on July 9, 1987, on the petitioner’s motion, finding that the respondent had not presented in his petition any change of circumstances warranting the petition since his last petition for modification of his child support in July 1984. Another petition for reduction of child support was filed by the respondent on October 16, 1987, and this petition, as well as the other petitions filed by the parties, was considered by the court on December 22, 1987.

As a result of the hearing on December 22, 1987, the court granted the petitioner her request to remove the children from the State, but denied her petition for an increase in child support and for college expenses for the children. The court found that it was too early to determine the need for the college expenses. The court denied the respondent his request for a change in the custody of the children, granted his request to modify his child support payments, and reduced the respondent’s child support payments from $350 per month per child to $275 per month per child.

The petitioner filed her next petition on February 2, 1988. In this petition she sought an increase in child support and she also asked that a trust fund be established to provide for the minor children’s future college expenses. The respondent then filed a petition for reduction of child support. These petitions were considered on February 22, 1988, and after hearing the evidence, the court denied the respondent’s petition for reduction of child support and denied that portion of the petitioner’s petition which sought an increase in child support. The court granted the petitioner’s request that trust funds be established for the children for their future college expenses, and it is this order which is the subject of this appeal.

On appeal, the respondent argues that the circuit court’s order directing the respondent to establish two trust funds for his minor children for the payment of their future college expenses was an abuse of discretion. The respondent argues that the court’s order was erroneous for three reasons: First, the evidence did not reveal that the establishment of the trust funds was necessary to protect the interests of the children. Second, there was insufficient evidence presented to determine the educational needs of the minor children beyond their age of majority. Third, the trusts ordered by the court were invalid since the trusts extended the respondent’s obligation of support beyond the children’s minority and resulted in the respondent making an inter vivos gift to adult children.

The circuit court’s order establishing the trust funds for the parties’ children stated as follows:

“That plaintiff’s Petition for Modification be and the same is hereby granted, and defendant is hereby ordered to establish a trust fund in the principal sum of $10,000.00 for Darren Harsy and a trust fund in the principal sum of $10,000.00 for Adrienne Harsy, both such trusts to be administered by a corporate trustee of defendant’s choice, the principal sums to be held in trust until he or she attains the age of eighteen (18). Upon attaining the age of eighteen (18), the corporate trustee shall have full discretionary power to utilize the income and principal for the child’s educational purposes. Payments shall be made directly to the child.
If either child does not need the trust funds or wish to use the trust funds for higher educational purposes, the trust shall terminate upon the child attaining the age of twenty-one (21) and the remaining proceeds shall be distributed by the trustee to the child.”

Section 503(g) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1987, ch. 40, par. 503(g)) permits a court, in its discretion, to establish a separate fund or trust for the minor children of divorced parents, if such a trust is necessary to protect and promote the best interests of the children. Section 513 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1987, ch. 40, par. 513) further grants a circuit court the discretion to extend a parent’s obligation for support of his or her children beyond their minority when that support is for educational purposes. Section 513 provides that a court may make provision for the children’s educational expenses whether the child is of minor or majority age. Clearly, when these two sections of the statute are read together, a court does have the discretion to order the establishment of a trust for the children’s future educational expenses while they are of minority age. However, to do so, both the statute and case law require that a trust can only be established if there is evidence showing a need to protect the interests of the children. (Ill. Rev. Stat. 1987, ch. 40, par. 503(g); Atkinson v. Atkinson (1981), 87 Ill. 2d 174, 429 N.E.2d 465; In re Marriage of Pickholtz (1988), 178 Ill. App. 3d 512, 533 N.E.2d 529.) Section 503(g) also demands a showing that the parent is unwilling or unable to make direct payments of support. In re Marriage of Pickholtz (1988), 178 Ill. App. 3d 512, 533 N.E.2d 529.

From the foregoing authorities, we must first determine if the evidence demonstrated some need for the protection of the children’s best interests thereby justifying the establishment of the trust funds. At the hearing on dissolution, child custody and property settlement held on January 19, 1983, the petitioner testified that she was a registered nurse and that during the marriage she had worked only part time in order to take care of the parties’ minor children. She also testified that the respondent had voiced sentiments during their marriage that education was a waste of time, and since he was able to make more money without a formal education than persons with such an education, that an education was unnecessary.

At that same hearing, the respondent testified that he had been employed as a coal miner for 12 or 13 years for Consolidation Coal Company, and that his salary for the past three or four years had averaged over $25,000 per year. In addition, since before the parties’ marriage in 1974, the respondent had also farmed approximately 1,000 acres, including land owned by his father and his aunt, in partnership with his brother Jerry. Various exhibits admitted into evidence revealed real estate owned by the respondent and his debts. The farmland in which the respondent had an ownership interest as of August 1982, was as follows: two acres owned by the respondent; 331 acres owned by the respondent and his brother Jerry Harsy; and two tracts of farmland of 80 acres each which were held in the name of the respondent and his three brothers. As of September 1982, the appraised value of the respondent’s property, including the marital home, totalled approximately $294,000; however, the debts on the real estate owned by the respondent totalled approximately $217,500. Additionally, the respondent and his brother Jerry also had a loan of over $60,400 on their farm equipment on which they paid annual payments.

At the hearing held on December 22, 1987, the petitioner testified that she was a registered nurse and was employed in the emergency department of Carbondale Memorial Hospital. Her income from 1983 through 1986 was $22,183.67, $23,757.93, $12,535.76, and $24,071.55 respectively. The drop in her income in 1985 to $12,535.76 was due to a motorcycle accident in which she sustained injuries disabling her from work for a period of time. However, she did receive a settlement of $33,000 for the accident. She also testified that she had set up a bank account for her children’s future college expenses and that she regularly deposited funds in this account for this purpose.

The respondent testified that in 1982, he earned $25,315 at the coal mines, but that he sustained a $17,455 loss for his farming income that year. Then, on December 20, 1983, the respondent suffered an accident at the coal mines, and he had not worked there since that time. The respondent had received workers’ compensation benefits on a weekly basis but these benefits were discontinued in September 1987. In April 1987, he received a partial settlement of $127,000 for his accident. Although he received this settlement, the respondent testified and produced cancelled checks showing that he spent $131,494 to pay off some of his debts. The debts he repaid were the payment of a loan advanced against his future soybean crop; the payment of property taxes and a house payment on the marital home which he now owned; the payment of his attorney fees; payments on several notes held by the bank; payment of a note owed to his brother Jerry Harsy; and payment to his father for a loan made so that the respondent could purchase a grain bin. In addition, the respondent purchased some equipment from Vergennes Equipment and a new car. The respondent admitted that even with paying off the $131,494 in debts, he still owed $118,571.20, so that prior to paying off the $131,494, he had owed approximately $250,000.

The respondent testified that since he can no longer work in coal mining because of his accident, he planned to work as a farmer full time and had done so from 1984 until the present. As a full-time farmer, the respondent did not believe that he would have sufficient income to pay the $350 per month per child that he was required to pay as child support. After hearing this evidence, the circuit court reduced the respondent’s child support payments to $275 per month per child, but denied the petitioner’s request that the respondent be required to set up a separate fund to be be used for the parties’ children’s future college expenses.

At the hearing held on February 22, 1988, the respondent testified that since the hearing of December 22, 1987, he had received another settlement for his mining accident in the amount of $75,000 of which he retained $50,000 after the payment of his attorney fees. Of the $50,000 he received, he had approximately $8,000 or $9,000 remaining, as he had used the money to pay $17,000 on a loan at a bank and to pay $20,000 to his mother and father on a loan from them which the respondent had used to pay a house note and child support. In addition to the $50,000 settlement payment, the respondent anticipated receiving his last settlement payment of $60,000 soon. Although he had not received this money, the respondent stated that he had made a real estate deal to buy more farmland with these proceeds.

Based on the foregoing evidence, the circuit court directed the respondent to set up two $10,000 trust funds for his children’s future post-high school educational needs. We find that the evidence presented established that there was a necessity for the trust funds to protect the interests of the minor children with regard to their future educational needs. The evidence revealed that the respondent was of the opinion that further education was not something to be valued, and because of his opinion, it can be inferred that he would not take measures to assure that there would be funds available for this purpose. Additionally, since the respondent was no longer able to work as a coal miner due to his accident in 1983, his opportunity to have a relatively stable income was greatly reduced. It is also evident that while the respondent was land-rich, he was also capital-poor, and that he kept his real estate encumbered with debt. This circumstance did not indicate that the funds for the children’s educational needs would be readily available when they became needed. We also note that the respondent had not saved any of the approximately $170,000 which he had already received as settlement payments for his accident, but that he quickly spent those funds in less than a year’s time, and that he made plans to spend the remainder of the settlement which he had not yet received.

It is also relevant to our consideration that the respondent indicated that he did not believe he was able to pay his child support payments. There was evidence in the record that the respondent had upon one occasion been held in contempt of court for failing to pay his child support as ordered by the court, which indicated that the respondent had either been unable or unwilling to pay. As we noted earlier, evidence of inability or unwillingness to pay has been held to be required to show the necessity of the establishment of a trust for support of minor children. (In re Marriage of Pickholtz (1988), 178 Ill. App. 3d 512, 533 N.E.2d 529.) The foregoing evidence indicated that the establishment of the trust funds for the children’s future educational needs was necessary to promote and protect the minor children’s interests, and that the court did not abuse its discretion when it so ordered.

The respondent’s next argument is that the court’s order directing the establishment of the two trusts was an abuse of discretion because the circuit court failed to consider the factors of section 513, and because there was insufficient evidence at this time to show what the children’s future needs for their college expenses would be. The factors which a circuit court is to consider when making provision for a child’s educational needs are set forth in section 513. That section provides that the circuit court must consider the financial resources of both parents, the standard of living the child would have enjoyed but for the dissolution of the marriage, and the child’s financial resources. (Ill. Rev. Stat. 1987, ch. 40, par. 513.) In our consideration of the respondent’s previous argument, we have extensively set forth the evidence presented at the various hearings. That evidence revealed that the financial resources of both parents and the standard of living the children would have enjoyed had the parties not obtained their divorce was before the court when it made its determination, and we have no reason to doubt that the court did not consider this information when it entered its order.

The respondent also argues that section 513 requires the court to consider all relevant factors which appear reasonable and necessary. The respondent cites the cases of In re Support of Pearson (1986), 111 Ill. 2d 545, 490 N.E.2d 1274, Rosche v. Rosche (1987), 163 Ill. App. 3d 308, 516 N.E.2d 1001, and Ingrassia v. Ingrassia (1987), 156 Ill. App. 3d 483, 509 N.E.2d 729, to support his argument and to assert that factors such as where the child should attend college, what the attendant costs for this schooling are, how long this education will take, what income the child may have, and what aptitude the child may have for higher education are to be the reasonable and necessary factors a court must consider in making its determination of a child’s need for educational expenses. The cases cited by the respondent can be distinguished from the case at bar and are not applicable, as in each of those cases, the children were already of majority age and these factors were readily available. The evidence before the court in this case indicates that it considered all the relevant factors that were reasonable and necessary at the time the court’s order establishing the trusts was entered.

Further, we find that the court could impose a trust for future expenditures for the children’s college educations even though there was no evidence that the children would even attend college upon becoming of age to do so. Since the statute allows for a court to make provision for a child’s college expenses, even though the child is still a minor, it is apparent that there will be occasions in which a court makes provision for a child’s college expenses and that evidence of the factors of what school, how much and so on will often be lacking at that time. (Ill. Rev. Stat. 1987, ch. 40, par. 513.) The purpose of the statute is, in part, to assure that the funds will be available if the need arises. Clearly, if the child has no need or a lesser need for the provision for educational expenses when he or she reaches college age or if the child’s need is greater than that provided for, a modification for these expenses can be sought by either parent from the court and an adjustment to accommodate that change can be made at that time.

We lastly consider the respondent’s argument that the trusts are invalid because the trusts extend his obligation to support his children beyond the age of majority, and because he is required to disburse the trust proceeds to the children upon termination of the trusts, thereby ordering the respondent to make an inter vivos gift to adult children as part of a divorce decree. In support of this argument the respondent cites In re Marriage of Olsher (1979), 78 Ill. App. 3d 627, 397 N.E.2d 488, and In re Marriage of Raski (1978), 64 Ill. App. 3d 629, 381 N.E.2d 744.

Initially, we note that the respondent’s argument that the trusts are invalid because the trusts extend his obligation to support his children beyond the age of their minority is without merit. Educational expenses are the exception to the general rule that a parent’s responsibility to support his children terminates upon emancipation of the children. (In re Marriage of Olsher (1979), 78 Ill. App. 3d 627, 397 N.E.2d 488.) Therefore, the respondent is not correct that the trusts are invalid for this reason. However, we do find that the respondent is correct in his argument that the disbursement of the trust proceeds to his adult children upon the termination of the trusts is not allowed. At oral argument the petitioner also agreed that this was correct. Additionally, both the petitioner and the respondent agreed at oral argument that this court has the authority to modify this portion of the court’s order. We conclude that the establishment of the trusts was valid and that to strike down the entire trust would not protect or promote the best interests of the minor children, but would deprive them of the necessary funds for their college expenses; therefore, pursuant to our discretionary powers under Supreme Court Rule 366(a) (107 Ill. 2d R. 366(a)), we modify that portion of the circuit court’s order directing the disbursement of the principal and income of the trusts to the children upon termination of the trusts. Before we set forth our modification, we note that the monies used by the court for the trusts were the exclusive property of the respondent, as he had received the funds as a settlement for an accident which occurred after the divorce decree had been entered and that the petitioner had no rights whatsoever to these funds. Because of this, we hereby modify the circuit court’s order to read as follows:

“That plaintiff’s Petition for Modification be and the same is hereby granted, and defendant is hereby ordered to establish a trust fund in the principal sum of $10,000.00 for Darren Harsy and a trust fund in the principal sum of $10,000.00 for Adrienne Harsy, both such trusts to be administered by a corporate trustee of defendant’s choice, the principal sums to be held in trust until he or she attains the age of eighteen (18). Upon attaining the age of eighteen (18), the corporate trustee shall have full discretionary power to utilize the income and principal for the child’s educational purposes. Payments shall be made directly to the child.
If either child does not need the trust funds or wish to use the trust funds for higher educational purposes, the trust shall terminate upon the child attaining the age of twenty-one (21) and the remaining proceeds shall be distributed by the trustee to the defendant.”

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

Affirmed as modified.

HARRISON and HOWERTON, JJ., concur.


author: JUSTICE HOWERTON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DARNELL LAWSON, Defendant-Appellant.
    Fifth District
    No. 5-88-0120
    Opinion filed January 23, 1990.

      Daniel M. Kirwan and Mary M. Menard, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    John Baricevic, State’s Attorney, of Belleville (Kenneth R. Boyle, Stephen E. Norris, and Gerry R. Arnold, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE HOWERTON

delivered the opinion of the court:

Defendant, jailed in St. Clair County on murder charges, told the police he did not want to be interviewed and requested an attorney. An attorney entered an appearance on defendant’s behalf.

While in jail, defendant set his cell on fire, confessed, was charged with arson, convicted by a jury, sentenced to eight years, and appeals, claiming: (1) that the State failed to prove the corpus delicti of arson; (2) that his confession was introduced into evidence in violation of Edwards v. Arizona (1981), 451 U.S. 477, 68 L. Ed. 2d 378, 101 S. Ct. 1880; and (3) that the trial court erred in admitting opinion testimony from lay witnesses concerning causation of the fire. We reject all his claims and affirm.

Defendant was housed in a single-man, maximum security, steel and concrete jail cell, the only access to which was through two locked doors. During the fire, the key hole to the jail cell’s inner door was found filled with wet toilet tissue, and defendant was found beneath his steel bunk while a jail uniform, mattress, blanket and newspapers, piled in a heap upon the floor, smoldered and smoked.

The defendant argues that the State presented no proof of the corpus delicti of arson and that therefore it was error to deny his motion for a directed verdict at the close of the State’s case.

Arson’s corpus delicti consists of: (1) a burning, and (2) a fire of incendiary origin. People v. Hannibal (1913), 259 Ill. 512, 102 N.E. 1042; People v. Lueder (1954), 3 Ill. 2d 487, 121 N.E .2d 743.

The defendant relies on Lueder for the general rule that a corpus delicti cannot be proved by a confession alone. We do not quarrel with that formulation of the law. This case, however, is distinguishable from Lueder.

In Lueder, the sum of the evidence was that a tool shed on cemetery grounds was gutted by fire and that defendant was employed at the cemetery. There was no evidence that the fire was of incendiary origin. Therefore, there was nothing to support defendant’s confession. Under these circumstances, the corpus delicti was proved only by Lueder’s confession in violation of long-standing law that has been formulated to assure the trustworthiness of confessions. See People v. Willingham (1982), 89 Ill. 2d 352, 432 N.E .2d 861.

In this case, however, there is strong circumstantial evidence independent of defendant’s confession that tends to show the fire was of incendiary origin. The defendant was the only person in the cell. The cell was a maximum security cell with steel walls and steel door. The only combustibles in the cell were all placed in a pile in the corner. Wet toilet paper had been placed in the key slot of the cell door from the inside in an effort to prevent someone from opening it.

These facts strongly imply that defendant deliberately set the fire. This evidence corroborates the confession, demonstrating its trustworthiness.

The Illinois Supreme Court in Willingham states:

“Although various criteria have been set forth for what is necessary to establish the corpus delicti, we believe the most precise explanation was given in People v. Perfecto (1962), 26 Ill. 2d 228, 229, [186 N.E.2d 258,] where this court stated:
‘The true rule is that if there is evidence of corroborating circumstances which tend to prove the corpus delicti and correspond with the circumstances related in the confession, both the circumstances and the confession may be considered in determining whether the corpus delicti is sufficiently proved in a given case.’ ” Willingham, 89 Ill. 2d at 359, 432 N.E.2d at 864.

The confession in this case was admissible because the corpus delicti had been proved. Therefore, the circuit court correctly denied the defendant’s motion for directed verdict. A circuit court must determine only whether a reasonable mind could fairly conclude beyond a reasonable doubt that the defendant was guilty, considering the evidence most strongly in the State’s favor. (People v. Withers (1981), 87 Ill. 2d 224, 429 N.E.2d 853.) Considering the circumstantial evidence against defendant, a reasonable person could conclude that the State had proved the corpus delicti.

Defendant next contends that it was error to admit into evidence his confession to Sergeant Hendricks. Because defendant had counsel on the murder charge, and Hendricks questioned him without his counsel being present, defendant argues that the questioning by Hendricks violated his fifth amendment right to counsel. Defendant relies on Edwards v. Arizona (1981), 451 U.S. 477, 68 L. Ed. 2d 378, 101 S. Ct. 1880, and Arizona v. Roberson (1988), 486 U.S. 675, 100 L. Ed. 2d 704, 108 S. Ct. 2093. His reliance on those cases would be well placed, but for his failure to timely assert his rights secured by these cases.

In Edwards v. Arizona, the U.S. Supreme Court held that once a suspect asks for an attorney, the police may not interrogate him further until counsel has been made available. In Arizona v. Roberson, the U.S. Supreme Court refused to carve out an exception to Edwards for situations wherein the police question a defendant about a crime unrelated to the one for which he is under arrest.

We believe defendant waived application of these cases by his failure to try to exclude Hendricks’ testimony in a timely way.

The Illinois Code of Criminal Procedure requires a motion to suppress to be filed before trial. (Ill. Rev. Stat. 1985, ch. 38, par. 114— 11(g).) Defendant, for whatever reason, and even though he had been alerted through discovery that the State intended to use it, neither filed a motion to suppress nor moved in limine to suppress

Hendricks’ testimony as to the confession.

At the time Hendricks testified, therefore, defendant had not asked the court to exclude the confession on grounds of the rule stated in Edwards v. Arizona and Arizona v. Roberson. Furthermore, defendant allowed Hendricks to prove orally the confession.

Hendricks’ testimony and the circumstances surrounding it are critical to our resolution. The testimony was:

“Q. Did you tell him you wanted to talk to him about the fire at the jail?
A. Yes, I did. I then simply asked him what cell he was in. He tells me Cell 6 in Max E, and knowing the structure of the jail, that’s a one-man cell. Nobody else could have been in there at that particular time. But I then asked him why did he set the fire — did he set the fire. I asked him first did he set the fire. He says yes, he did. And I then asked him why he set it, and he at that time initially told me that he was trying to get some attention, and then I asked him did he want to give me a statement to that effect and he said yes.
Q. What was his response?
A. He said yes.”

Defendant’s confession had just been given orally to the jury, and there was no objection.

Shortly thereafter, the State laid the evidentiary foundation for the written, signed confession and offered it into evidence. Only then did defendant object and move to strike Hendricks’ testimony on the grounds that the rule in Edwards v. Arizona had been violated.

Had timely objections been made, Edwards v. Arizona would compel reversal. In this case, however, no timely objection was made. Defendant filed no motion to suppress, no motion in limine and made no objection to the oral account of the confession going into evidence against him.

Had the State stopped and not introduced the written confession, the circuit court never would have been called upon to make a ruling. But, the State pressed on and introduced the written confession, the contents of which the jury already had heard. Only then did defendant object and move to strike.

Had the objection been sustained, but the motion to strike denied, then defendant’s confession still would have" been before the jury through Hendricks’ testimony.

Had the objection been sustained and the motion to strike granted, the confession would have been highlighted to the jury, and defendant most likely now would be complaining that the court’s instruction to disregard could not remove the stain of the inadmissible evidence from the jurors’ minds, and defendant, therefore, was deprived of a fair trial.

The upshot is this: defendant’s failure to assert a timely objection forced the circuit court to choose between letting the case go forward or sua sponte declaring a mistrial. A mistrial under these circumstances would carry with it the attendant risk of retrial being barred by application of double jeopardy since it would have been declared because of prosecutorial misconduct. (People v. Pendleton (1979), 75 Ill. App. 3d 580, 394 N.E.2d 496; People v. Reimnitz (1981), 97 Ill. App. 3d 946, 423 N.E.2d 934.) Under these circumstances we find no error; we find the issue waived by defendant’s failure to interpose either a timely motion or a timely objection.

Finally, defendant claims it was error for the court to allow three State witnesses to testify that defendant was relaxing and smiling after the fire and that they believed defendant set the fire because he was the only one in the cell. He says this testimony from these lay witnesses violates the opinion rule. People v. Burton (1972), 6 Ill. App. 3d 879, 286 N.E.2d 792.

Defendant again claims that the circuit court did a bad job in failing to interject into the trial to save defendant from the consequences of the way he chose to try his case. Defendant elicited these responses during his cross-examination of the witnesses and took the answers without objection.

A court is not obligated to exclude improper evidence where a defendant makes no objection, does not move to exclude it, or does not disclaim the answers. (People v. Burage (1961), 23 Ill. 2d 280, 178 N.E.2d 389.) Defendant waived any error by failing to object to two of the alleged errors and by failing to include any of the three allegations in his post-trial motion. People v. Kennedy (1986), 150 Ill. App. 3d 319, 501 N.E. 1004.

The circuit court is affirmed.

Affirmed.

HARRISON and GOLDENHERSH, JJ., concur.

        Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, is not involved in this case.


author: JUSTICE HARRISON

text:
    RICHARD T. YATES et al., Plaintiffs-Appellees, v. DOCTOR’S ASSOCIATES, INC., et al., Defendants-Appellants.
    Fifth District
    No. 5—89—0139
    Opinion filed January 25,1990.

      Theodore J. MacDonald, Jr., of Burroughs, Simpson, Hepler, Broom & MacDonald, of Edwardsville, and Alan G. Gerson, of Blumenfeld, Sandweiss, Marx, Tureen, Ponfil & Kaskowitz, P.C., of Clayton, Missouri, for appellants.

      David M. Duree, of O’Fallon, and Robert L. Carter, of Leritz, Reiner & Duree, P.C., of St. Louis, Missouri, for appellees.
   JUSTICE HARRISON

delivered the opinion of the court:

This is an interlocutory appeal pursuant to Supreme Court Rule 307(a)(1) (107 Ill. 2d R. 307(a)(1)) from an order of the circuit court of Madison County which denied defendants’ motions to compel arbitration and to stay all judicial proceedings pending the conclusion of that arbitration. For the reasons which follow, we affirm.

The record before us shows that defendant Doctor’s Associates, Inc., is a Connecticut corporation which sells franchises for the operation of “Subway” sandwich stores. In 1987, plaintiffs Richard T. Yates and Dick Dewayne Cox, Jr., purchased eight of these franchises. Each franchise entitled plaintiffs to operate one Subway sandwich store. Plaintiffs Yates and Cox initially used five of their franchises to open and operate five Subway sandwich stores in Madison and St. Clair Counties in Illinois. The remaining three franchises were held by Yates and Cox for future development.

Each of the eight franchises which Yates and Cox had purchased was governed by a separate franchise agreement, but the substantive terms of those agreements were the same. The agreements provided that plaintiffs were responsible for selecting the locations for their sandwich stores. Those locations were then subject to approval by defendant Doctor’s Associates. If Doctor’s Associates approved the proposed locations, either it or one of its designees would lease the premises and then sublet them to plaintiffs.

The franchise locations and leases for plaintiffs’ five Illinois stores were approved by Doctor’s Associates. Defendant Ted Parent was an employee of Doctor’s Associates involved in its leasing operations, and the development agent appointed by Doctor’s Associates for the franchise territory in which plaintiffs’ stores were located was defendant Hossein Naemi. Naemi was also the president and sole director of defendant Subway Development Corporation of Eastern Missouri, and he would perform some of his responsibilities as Doctor’s Associates’ agent through that corporation. Defendant Frederick A. Deluca was the general manager of Doctor’s Associates and was allegedly the individual who approved or disapproved “the franchises and their developments [sic] of ‘Subway’ Sandwich Shops.”

The entity designated by Doctor’s Associates to lease the premises for plaintiffs’ stores was defendant Subway Sandwich Shops, Inc. (Subway, Inc.), and Subway, Inc., subleased the premises to plaintiffs pursuant to the terms of the franchise agreements. The subleases were approved by Doctor’s Associates. Defendant Christopher J. MacDonald, who had been associated with the leasing operations of Doctor’s Associates since 1984, held the position of vice-president for defendant Subway, Inc., and he executed the sublease agreements on Subway, Inc.’s behalf.

Subway, Inc., was a Connecticut corporation like Doctor’s Associates, and its operations were completely intertwined with those of Doctor’s Associates. Defendants have not identified any employee of Subway, Inc., who was not also an employee of Doctor’s Associates, and Subway, Inc., appears to have had no function other than acting for Doctor’s Associates in subleasing facilities to Doctor’s Associates’ franchisees.

Correspondingly, Subway, Inc.’s sublease agreements appeared to have had no purpose other than providing a mechanism by which defendant Doctor’s Associates could enforce the terms of its franchise agreements. They generated no profit for defendants. Under the subleases, plaintiffs Yates and Cox rented the premises at Subway, Inc.’s cost. Subway, Inc., did not even collect the rent. All rental payments were required to be made directly to the landlord, not Subway, Inc. The only provision in the subleases of any real consequence was that any “default in the performance of any of the terms, covenants or conditions” of the franchise agreements also constituted a breach of the subleases and entitled Subway, Inc., to terminate the leases and force the plaintiffs to surrender the premises.

After the franchise agreements and subleases were executed, plaintiffs Cox and Yates assigned their rights and liabilities under the franchises to plaintiff Substantial Enterprises, Inc., an Illinois corporation. Such assignments were expressly permitted under the terms of the franchise agreements, although the agreements provided that the assignments would not relieve the franchisees, Yates and Cox, of their personal liability.

Following the assignment of the franchises, plaintiff Cox began negotiations with the May Company on behalf of Substantial Enterprises to open additional Subway sandwich stores in shopping malls which May Company owned and operated. These negotiations culminated in what became known as the “three mall deal.” Under the terms of that deal, Substantial Enterprises was to first open a Subway sandwich store in the Mid-Rivers Shopping Mall in St. Charles, Missouri, followed by an additional store in the Alton Square Shopping Mall in Alton, Illinois, and finally one in the St. Clair Shopping Plaza in Fairview Heights, Illinois. Plaintiff Substantial Enterprises II, a Missouri corporation, was incorporated by plaintiffs for the spetifie purpose of operating the Mid-Rivers Shopping Mall store in Missouri. Plaintiffs intended to use their three inactive franchises for these three locations.

Plaintiffs claim that the opening of the Missouri store at Mid-Rivers Shopping Mall was a condition precedent to the “three mall deal” with the May Company, and they anticipated that it would lead to future deals with the May Company to open up additional Subway sandwich stores in other May Company malls throughout the State of Missouri. After the “three mall deal” was negotiated, however, a dispute arose between plaintiffs and defendants regarding plaintiffs’ expansion plans. This dispute centered specifically on plaintiffs’ plans to open the unit in Missouri at the Mid-Rivers location. Plaintiffs charge that defendants ultimately refused to approve the Mid-Rivers location and would not even approve alternative locations in Illinois which plaintiffs hoped to use for their three inactive franchises.

Plaintiffs responded to these actions by filing a five-count complaint against defendants in the circuit court of Madison County. Counts I through IV were each brought by plaintiffs Yates, Cox and Substantial Enterprises. Count I alleged that defendants had violated section 4.3 of the Illinois Franchise Disclosure Act (Ill. Rev. Stat. 1985, ch. 1211/2, par. 704.3), which governs the termination of franchises. Count II alleged that defendants had committed fraudulent practices in violation of section 6 of the Illinois Franchise Disclosure Act (Ill. Rev. Stat. 1985, ch. 121V2, par. 706). Count III was premised on common law fraudulent misrepresentation, while count IV alleged willful and wanton breach of contract. Count V was brought on behalf of Substantial Enterprises II alone and alleged intentional interference with prospective economic advantage.

Plaintiffs’ complaint was filed on June 17, 1988. The following month, defendants filed a petition to remove the case to the United States District Court for the Southern District of Illinois pursuant to 28 U.S.C. §1441 (1982). Once in Federal court, defendants filed a motion in which they requested the court to compel plaintiffs to arbitrate their claims and to stay all judicial proceedings pending the conclusion of the arbitration.- That motion was apparently argued and taken under advisement, but before the motion was ruled upon, the U.S. District Court ordered that the case be remanded to the circuit court of Madison County.

Following remand, defendants Doctor’s Associates, Subway, Inc., Subway Development Corporation of Eastern Missouri, and Hossein Naemi filed a motion to compel arbitration pursuant to the Illinois Uniform Arbitration Act (Ill. Rev. Stat. 1987, ch. 10, par. 101 et seq.) and to stay all judicial proceedings pending the conclusion of that arbitration. The basis for this motion was section 10(c) of the parties’ franchise agreements, which provided:

“Any controversy or claim arising out of or relating to this contract or the breach thereof shall be settled by Arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association at a hearing to be held in Bridgeport, Connecticut and judgment upon an award rendered by the Arbitrator(s) may be entered in any court having jurisdiction thereof. The commencement of arbitration proceedings by an aggrieved party to settle disputes arising out of or relating to this contract is a condition precedent to the commencement of legal action by either party. The cost of such a proceeding will be borne equally by the parties.”

At the same time this motion was filed, defendants Parent, Deluca, and MacDonald filed separate motions asking that they be dismissed from the case on the grounds that the court lacked personal jurisdiction over them. (Another defendant, named Axelrod, joined in this motion, but he was later dismissed from the case by plaintiffs.) Their motions were denied by the court in an order entered on November 10, 1988. On December 12, 1988, MacDonald, Deluca and Parent then filed their own motion to stay the proceedings pending arbitration of the claims advanced by plaintiffs.

While the various motions to compel arbitration and stay judicial proceedings were pending, defendant Subway, Inc., filed five forcible entry and detainer actions in Madison and St. Clair Counties to evict plaintiffs Yates and Cox from the five Illinois locations where they had Subway sandwich stores in operation. The sole basis for those forcible entry and detainer actions was that Yates and Cox had allegedly violated the terms of their franchise agreements with defendant Doctor’s Associates by failing to make royalty payments as the franchise agreements required.

Plaintiffs claim that they refused to make those payments because they believed that defendants’ conduct in refusing to approve plaintiffs’ proposed locations for their three nonoperating franchises, the same conduct which gave rise to plaintiffs’ lawsuit in the circuit court of Madison County, constituted a breach of the franchise agreements by defendants themselves. In view of this breach by defendants, plaintiffs believed that they were no longer obligated to make the payments which the franchise agreements required. Plaintiffs had evidently notified Doctor’s Associates that they were taking this position before the payments were terminated.

It was against this background that defendants’ motions to compel arbitration of the matters raised in plaintiffs’ complaint and to stay all judicial proceedings pending the outcome of that arbitration were set before the circuit court for a decision. Following a hearing, defendants’ motions were denied. Defendants then brought this interlocutory appeal pursuant to Supreme Court Rule 307(a)(1) (107 Ill. 2d R. 307(a)(1)). See Notaro v. Nor-Evan Corp. (1983), 98 Ill. 2d 268, 271, 456 N.E.2d 93, 94-95.

On this appeal, defendant Doctor’s Associates argues that the circuit court erred in refusing to order arbitration in accordance with the terms of section 10(c) of the franchise agreements. It no longer contends, however, that all of the plaintiffs should be required to submit to such arbitration. It now seeks reversal of the circuit court’s order only insofar as it refused to compel arbitration with plaintiffs Yates and Cox.

None of the remaining defendants asserts any right to arbitration at all. Although defendants Subway, Inc., Subway Development Corporation of Eastern Missouri and Hossein Naemi had originally joined in Doctor’s Associates’ motion to compel arbitration, they, along with defendants Parent, MacDonald and Deluca, now contend simply that the circuit court erred in refusing to stay the judicial proceedings pending the outcome of the arbitration sought by Doctor’s Associates.

Where, as here, an interlocutory appeal is brought pursuant to Supreme Court Rule 307(a)(1) (107 Ill. 2d R. 307(a)(1)), controverted facts or the merits of the case are not decided. (Chicago & Eastern Illinois R.R. Co. v. Illinois Commerce Comm’n (1976), 37 Ill. App. 3d 523, 524, 346 N.E.2d 432, 434.) The only question in such an appeal is whether there was a sufficient showing to sustain the order of the trial court granting or denying the relief sought. Kelso-Burnett Co. v. Zeus Development Corp. (1982), 107 Ill. App. 3d 34, 41-42, 437 N.E.2d 26, 31.

In determining whether the circuit court acted properly in denying defendants’ motions, a threshold issue we must address is what law governs the parties’ agreements. Defendants have suggested that the franchise agreements are contracts evidencing a transaction in interstate commerce and that the arbitration provisions in those agreements are therefore subject to the Federal Arbitration Act (9 U.S.C. §1 et seq. (1988)). Because the Federal Arbitration Act creates a body of Federal substantive law applicable to any arbitration agreement within the Act’s coverage (Geldermann, Inc. v. Stathis (1988), 177 Ill. App. 3d 414, 420, 532 N.E.2d 366, 369), defendants reason that the State law which would otherwise govern has been preempted and that all questions of interpretation, construction, validity, revocability and enforceability of the arbitration provisions here must be determined by reference to Federal law.

This argument must fail. First, as we have indicated, defendants based their motion to compel arbitration and to stay the judicial proceedings upon the Illinois Uniform Arbitration Act (Ill. Rev. Stat. 1987, ch. 10, par. 101 et seq.), and our review of the record has disclosed that they premised their arguments in the trial court exclusively on Illinois law. No suggestion was made that the Federal Arbitration Act preempted the law of this State until defendants filed their brief on appeal. Because the doctrine of Federal preemption was not invoked at the trial level, we believe that issue has been waived. See Beckman v. Freeman United Coal Mining Co. (1988), 123 Ill. 2d 281, 286, 527 N.E.2d 303, 305.

Even if defendants’ preemption argument had not been waived, we would nevertheless be compelled to conclude that the Federal Arbitration Act (9 U.S.C. §1 et seq. (1988)) does not control. In advancing their analysis, defendants overlook that their franchise agreements contain a choice-of-law provision. Section 12 of the agreements expressly provides that the agreements “shall be governed by and construed in accordance with the laws of the State of Connecticut.” There is nothing in the record before us to suggest that this provision was not intended to be fully applicable to the arbitration clause in the franchise agreements. As a matter of basic contract interpretation, we must therefore conclude that the parties had agreed that arbitration, like any other issue under the franchise agreements, was to be governed by the law of Connecticut.

Where, as here, the parties have agreed to arbitrate in accordance with State law, the Federal Arbitration Act (9 U.S.C. §1 et seq. (1988)) does not apply, even though the transaction involves interstate commerce. (Volt Information Sciences, Inc. v. Board of Trustees of the Leland Stanford Junior University (1989), 489 U.S. 468, 103 L. Ed. 2d 488, 109 S. Ct. 1248.) This is so except where the applicable State law would prevent the arbitration agreements negotiated between the parties from being enforced according to their terms. See, e.g., Southland Corp. v. Keating (1984), 465 U.S. 1, 79 L. Ed. 2d 1, 104 S. Ct. 852 (finding preempted a State statute which rendered agreements to arbitrate certain franchise claims unenforceable); Perry v. Thomas (1987), 482 U.S. 483, 96 L. Ed. 2d 426, 107 S. Ct. 2520 (finding preempted a State statute which rendered unenforceable private agreements to arbitrate certain wage collection claims).

Such a result is implicit in the purposes of the Federal Arbitration Act (9 U.S.C. §1 et seq. (1988)), which, as the U.S. Supreme Court has recently held, “was designed ‘to overrule the judiciary’s long-standing refusal to enforce agreements to arbitrate,’ [citation], and to place such agreements ‘upon the same footing as other contracts.’ [Citation.]” (Volt Information Sciences, Inc. v. Board of Trustees of the Leland Stanford Junior University (1989), 489 U.S. 468, 478, 103 L. Ed. 2d 488, 499, 109 S. Ct. 1248, 1255.) The Act “simply requires courts to enforce privately negotiated agreements to arbitrate, like other contracts, in accordance with their terms.” 489 U.S. at 478,103 L. Ed. 2d at 500,109 S. Ct. at 1255.

In the Supreme Court’s view,

“[arbitration under the Act is a matter of consent, not coercion, and parties are generally free to structure their arbitration agreements as they see fit. Just as they may limit by contract the issues which they will arbitrate, [citation], so too may they specify by contract the rules under which that arbitration will be conducted. Where, as here, the parties have agreed to abide by state rules of arbitration, enforcing those rules according to the terms of the agreement is fully consistent with the goals of the [Federal Arbitration Act], even if the result is that arbitration is stayed where the Act would otherwise permit it to go forward. By permitting the courts to ‘rigorously enforce’ such agreements according to their terms, [citation], we give effect to the contractual rights and expectations of the parties, without doing violence to the policies behind the [Act].” 489 U.S. at 479, 103 L. Ed. 2d at 500,109 S. Ct. at 1255-56.

Having said all of this, we have still not fully answered the question of what law should apply in this case. A problem remains because, while the franchise agreements invoke Connecticut law, no Connecticut statutes or court decisions have been invoked by any of the parties. Under the Uniform Judicial Notice of Foreign Law Act (Ill. Rev. Stat. 1987, ch. 110, par. 8 — 1003 et seq.), both the circuit court and this court are authorized to take judicial notice of the common law and statutes of Connecticut. We think it significant, however, that none of the parties has ever requested that such notice be taken.

From our review of the record and the briefs on appeal, it appears that no one involved in this litigation has ever suggested in any way that the arbitration provisions in the franchise agreements should be judged under Connecticut law. We note once again that the motion to compel arbitration filed in the circuit court by defendants Doctor’s Associates, Subway, Inc., Subway Development Corporation of Eastern Missouri, and Hossein Naemi, sought relief based not on the law of Connecticut or even the Federal Arbitration Act, but on the Illinois Uniform Arbitration Act (Ill. Rev. Stat. 1987, ch. 10, par. 101 et seq.). Throughout the proceedings before the circuit court, the parties based their arguments regarding the enforceability of the disputed arbitration proceedings exclusively upon the law of Illinois. Indeed, until defendants attempted to invoke the Federal Arbitration Act in their arguments on appeal, it appeared that there was no dispute between the parties that Illinois law supplied the applicable rules of decision.

Under these circumstances, we believe that the conduct of the parties resulted in a mutual waiver of those terms in the franchise agreements calling for application of Connecticut law and was tantamount to an agreement that the issue of arbitration should, instead, be decided under Illinois law. (See Kress Corp. v. Edw. C. Levy Co. (1981), 102 Ill. App. 3d 264, 268, 430 N.E.2d 593, 595.) Although the situation here thus differs from that present in Volt Information Sciences, Inc. v. Board of Trustees of the Leland Stanford Junior University (1989), 489 U.S__, 103 L. Ed. 2d 488, 109 S. Ct. 1248, in that the express contractual choice-of-law provision was superseded by an implied agreement to abide by the law of another jurisdiction, we nevertheless believe that the principles underlying that decision apply with equal force. Under Volt Information Sciences, Inc. v. Board of Trustees of the Leland Stanford Junior University, what matters is that an agreement to apply State law exists, not the formality with which that agreement has been expressed. Because the parties here have agreed to submit to Illinois law, and because there is no dispute that the Illinois rules governing arbitration in no way conflict with the policies underlying the Federal Arbitration Act, we therefore hold that Illinois law applies.

Having found that Illinois law governs, we have no difficulty in concluding that there was a sufficient showing to support the circuit court’s refusal to compel arbitration or stay the judicial proceedings. Arbitration is a favored method of settling disputes in Illinois. (Cencula v. Keller (1987), 152 Ill. App. 3d 754, 756, 504 N.E.2d 997, 999.) Nevertheless, a provision in a written contract to submit to arbitration may be waived. A waiver of arbitration rights is disfavored, but a waiver may occur when a party acts in a manner which is inconsistent with the arbitration clause in an agreement, thus indicating abandonment of the right to arbitration. A party’s conduct amounts to waiver when the party submits arbitrable issues to a court for decision. Atkins v. Rustic Woods Partners (1988), 171 Ill. App. 3d 373, 378, 525 N.E.2d 551, 555.

That is precisely what occurred here. To be sure, there is no question that when plaintiffs filed their complaint in circuit court defendants did act expeditiously in attempting to stop the judicial proceedings and obtain arbitration of plaintiffs’ claims. Equally clear, however, is that defendants were not content to rely on the arbitration process with respect to their own claims against plaintiffs. Instead, Subway, Inc., initiated five forcible entry and detainer actions against plaintiffs in circuit court. As we have indicated, the action filed by plaintiffs and the forcible entry and detainer actions filed in the name of Subway, Inc., arose from the same dispute and would have required consideration of many of the same issues. Defendants therefore must be regarded as having submitted arbitrable issues for judicial determination.

Defendant Doctor’s Associates, the only defendant left in this case who still claims some right to compel arbitration, nevertheless attempts to avoid application of the waiver doctrine by arguing that Subway, Inc.’s actions cannot be imputed to it. Such a claim is wholly without merit. Subway, Inc., had no existence apart from Doctor’s Associates. Its very reason for being was to do Doctor’s Associates’ bidding. If Subway, Inc., was not Doctor’s Associates’ alter ego, it was at least its agent. When Subway, Inc., filed the forcible entry and detainer actions this was as surely the action of Doctor’s Associates as if Doctor’s Associates had brought the actions in its own name.

Thus, Doctor’s Associates did not merely adopt a defensive posture in order to protect its position in litigation initiated by someone else. (Cf. Edward Electric Co. v. Automation, Inc. (1987), 164 Ill. App. 3d 547, 554-55, 518 N.E.2d 172, 177.) Through Subway, Inc., it initiated its own proceedings to place the dispute between the parties before a judicial forum for determination. In our view, its participation in the judicial forum through the forcible entry and detainer actions was inconsistent with its contractual right to require arbitration and was an abandonment of that right.

Doctor’s Associates argues, in the alternative, that under the terms of the franchise agreements themselves, any litigation brought by it cannot be construed as a waiver of its right to arbitrate. In support of this claim, Doctor’s Associates cites the language in section 10(c) of the agreements which specifies that arbitration shall be conducted “in accordance with the Commercial Arbitration Rules of the American Arbitration Association.” Doctor’s Associates represents that under those rules, no judicial proceedings by a party relating to the subject matter of the arbitration shall be deemed a waiver of the party’s right to arbitrate. Unfortunately, the rules of the American Arbitration Association have not been included in the record before us, and no authority has been offered by Doctor’s Associates which suggests that those rules are a proper subject of judicial notice. While Doctor’s Associates cites various Illinois cases which have invoked the American Arbitration Association’s rules (see, e.g., Kostakos v. KSN Joint Venture No. 1 (1986), 142 Ill. App. 3d 533, 537-38, 491 N.E.2d 1322, 1326), we have no way of knowing based on this record whether the same rules cited by those authorities were in effect when the franchise agreements at issue here were executed.

In any event, our review of the record has disclosed that Doctor’s Associates did not invoke the rules of the American Arbitration Association in its arguments before the trial court. As a general rule, the theory upon which a case was tried in the lower court cannot be changed on review and an issue not presented to or considered by the trial court cannot be raised for the first time on review. (Darnall v. City of Monticello (1988), 168 Ill. App. 3d 552, 553, 522 N.E.2d 837, 838.) Although this rule is not without exceptions (see, e.g., Apex Oil Co. v. Henkhaus (1983), 118 Ill. App. 3d 273, 276, 454 N.E.2d 1032, 1035), we do not believe that any such exceptions are present here. We therefore deem defendants’ arguments regarding the commercial rules of the American Arbitration Association to have been waived.

In sum, we find no error in the circuit court’s refusal to grant Doctor’s Associates’ motion to compel arbitration. Because arbitration was not required, it necessarily follows that the circuit court likewise acted properly in refusing to stay the judicial proceedings pending the outcome of arbitration, as the remaining defendants had requested.

Plaintiffs advance various other arguments in support of the circuit court’s decision. They contend, for example, that Doctor’s Associates had no enforceable right to arbitration against plaintiffs Yates and Cox because Yates and Cox had assigned their franchise agreements to plaintiff Substantial Enterprises I, and Doctor’s Associates has not sought arbitration with that corporation. Plaintiffs also assert, among other things, that the arbitration provision itself was unconscionable and unenforceable. In view of our disposition, these additional arguments need not be addressed.

For the foregoing reasons, the order of the circuit court of Madison County denying defendants’ motions to compel arbitration and to stay the judicial proceedings is affirmed.

Affirmed.

WELCH and HOWERTON, JJ., concur.