author: JUSTICE McLAREN

text:
      In re MARRIAGE OF GLORIA KUHN, Petitioner-Appellee, and MICHAEL J. KUHN, Respondent-Appellant.
    Second District
    Nos. 2 — 90—1375, 2 — 91—0078, 2 — 91—0256 cons.
    Opinion filed October 21, 1991.

      Paul C. Pinderski, of Pinderski & Pinderski, Ltd., of Palatine (Jerome W. Pinderski, Jr., of counsel), for appellant.
    Joel S. Miller, of Chicago (Mark W. Kelly, of counsel), for appellee.
   JUSTICE McLAREN

delivered the opinion of the court:

In this consolidated appeal, respondent appeals from orders of the trial court that: (1) denied him a declaratory judgment; (2) held him responsible for 50% of his daughter’s college expenses; (3) held him in contempt of court; and (4) awarded petitioner attorney fees for the contempt proceedings. We affirm in part, reverse in part, and vacate in part.

The marriage of Michael and Gloria Kuhn was dissolved in 1984. One of the children of their union, Nancy, began to attend Northern Illinois University in the fall of 1989. In May 1990, Gloria brought a petition seeking college expense contributions from Michael pursuant to section 513 of the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1989, ch. 40, par. 513). Michael then filed a petition for declaratory relief which challenged the constitutionality of section 513. The trial court upheld the constitutionality of that section and denied Michael’s petition. On December 6, 1990, the court entered an order holding each parent responsible for 50% of Nancy’s college expenses and ordering Michael to reimburse Gloria within 10 days for 50% of past college expenses. A notice of appeal from those orders was filed.

Michael moved to stay enforcement of the college expense order pending appeal. The trial court denied the motion. Subsequent requests to this court and our supreme court for stay orders were denied. During the pendency of Michael’s petition to the supreme court, Gloria petitioned the trial court for entry of a contempt citation against Michael for his failure to reimburse Gloria for past college expenses pursuant to the court’s order. A rule to show cause was entered, and, after a hearing, Michael was adjudicated in contempt. Michael was then discharged following his payment to Gloria that day in open court. Michael appealed the finding of contempt.

Gloria next filed a petition for attorney fees incurred in conjunction with the contempt proceeding. The court awarded fees of $1,156.25 in Gloria’s favor. The enforcement of this award was stayed by the trial court upon the filing of an appeal bond. Michael then appealed from the award. All three appeals were then consolidated by this court.

Michael first contends that section 513 of the Act, pursuant to which he was ordered to pay 50% of Nancy’s college education, is unconstitutional in that it violates the equal protection and due process clauses of the Federal and Illinois Constitutions. The issue of whether section 513 violates the equal protection clauses has previously been decided in the negative by our supreme court in Kujawinski v. Kujawinski (1978), 71 Ill. 2d 563. Michael’s challenge of that holding is misplaced; only the supreme court can overrule or modify its opinions, and we are bound to follow the supreme court’s decisions. (See Agricultural Transportation Association v. Carpentier (1953), 2 Ill. 2d 19, 27; People v. Condon (1990), 195 Ill. App. 3d 815, 824.) We, therefore, will not consider this challenge of our supreme court’s decision.

Michael’s contention that section 513 violates his right to substantive due process also fails. Michael argues that the right to raise one’s children as one sees fit is a fundamental right and that any encroachment in this area by the legislature must be propelled by a “legitimate, substantial and compelling state interest.” According to Michael, section 513 advances no compelling State interest and is therefore an unconstitutional encroachment. We disagree.

The purpose of section 513 is to “furnish a means to provide for the education of children of divorced parents.” (In re Marriage of Treacy (1990), 204 Ill. App. 3d 282, 286.) This section is one among many contained in the Act, the purpose of which is to protect the interests of children whose parents have decided to dissolve their marriages. It is self-evident from the provisions of the Act, from the issue of custody addressed in sections 601 through 611 (Ill. Rev. Stat. 1989, ch. 40, pars. 601 through 611), through the issue of support in section 513 (Ill. Rev. Stat. 1989, ch. 40, par. 513), to the issue of visitation covered in section 607 (Ill. Rev. Stat. 1989, ch. 40, par. 607), that the State has a compelling interest in protecting and providing for the children of divorced parents. In addition, section 513 does not mandate divorced parents to provide funds for their children’s post-secondary education; a determination as to whether a parent shall contribute is left to the sound discretion of the trial court. (Treacy, 204 Ill. App. 3d at 286.) Even then, a child cannot force his parents to provide funds if both parents agree that such funds will not be provided. Section 513 advances a compelling State interest without encroaching upon any fundamental right; its enforcement is therefore not unconstitutional.

We next consider Michael’s contention that the court improperly held him in contempt. The contempt citation was issued because Michael did not pay to Gloria within 10 days the money owed for Nancy’s previous college expenses. Michael did not pay the amount due until he had exhausted his attempts to obtain a stay of the trial court’s order from this court and our supreme court. Michael now argues that he should not have been held in contempt for pursuing legal remedies to which he may have been entitled. We agree.

A trial court’s issuance of a contempt citation will not be reversed on appeal unless the court has abused its discretion. (Central Production Credit Association v. Kruse (1987), 156 Ill. App. 3d 526, 531.) However, the power to impose contempt is subject to limitations, and it should only be exercised in extreme situations. (Central Production, 156 Ill. App. 3d at 531.) While Michael did not pay Gloria within the period ordered by the court, the finding of contempt was too harsh a penalty under the circumstances. Michael’s failure to pay, while willful and intentional, was not done to show any disrespect to the court; Michael was merely seeking temporary appellate relief from the effects of the court’s order. The rule to show cause should have been filed after a stay was denied by the reviewing courts and a demand for payment was made. Michael’s tender of the amount due at the next court date is evidence of a lack of malice on his part. We conclude that the contempt finding was not warranted under these circumstances and so reverse the court’s citation as an abuse of discretion.

Because of our reversal of Michael’s contempt citation, we must also vacate the attorney fees awarded to Gloria for representation in the contempt proceedings. Similarly, we need not address Michael’s contentions that he was not properly served with the rule to show cause or that the court lacked jurisdiction to adjudicate Gloria’s petition for attorney fees.

Michael finally contends that the court’s apportionment of Nancy’s college expenses was an abuse of discretion. All that Michael provides are the monthly incomes and net worths of Michael and Gloria plus the fact that Nancy was not ordered to contribute anything towards her own expenses. On the basis of this limited argument, we cannot conclude that the court abused its discretion in its order of apportionment.

For these reasons, the orders of the circuit court of Lake County apportioning payment of the college expenses and denying Michael declaratory relief are affirmed; the order finding Michael in contempt of court is reversed; and the order awarding Gloria attorney fees is vacated.

Affirmed in part; reversed in part; and vacated in part.

BOWMAN and INGLIS, JJ., concur.


source: Caselaw Access Project

author: JUSTICE DUNN

license: Public Domain

text:
    EDWARD E. GILLEN COMPANY, Plaintiff-Appellant, v. THE CITY OF LAKE FOREST, Defendant-Appellee.
    Second District
    No. 2 — 91—0065
    Opinion filed October 23, 1991.

      Donald L. Sime, of Brydges, Riseborough, Morris, Franke & Miller, of Waukegan, and Donald J. Driscoll, of Michael, Best & Friedrich, of Milwaukee, Wisconsin (Lee J. Geromime, of counsel), for appellant.
    Conzelman, Snarski & Stepanich, and Markham M. Jeep, of Markham M. Jeep, EC., both of Waukegan (Murray R. Conzelman, of counsel), for appellee.
   JUSTICE DUNN

delivered the opinion of the court:

Plaintiff, Edward E. Gillen Company (Gillen), appeals from the dismissal of count IX of plaintiff’s amended complaint and an order granting judgment on the pleadings in favor of defendant, the City of Lake Forest (Lake Forest), as to all damages relating to the sinking of plaintiff’s tugboat, the “Andrew J.” We affirm. The following facts were set forth in the plaintiff’s complaint.

In March 1986, Lake Forest invited marine contractors to submit sealed bids for the construction of Project No. C12284, which included the construction of offshore breakwaters in Lake Michigan. Gillen was awarded the contract.

An essential element of the project was the construction of Breakwater II, known as the pedestrian/fisherman walkway. Its construction differed significantly from the other breakwaters in that the stones were required to be fitted closely together so that pedestrians and fishermen could safely walk upon it. The project manual, which was the basis of Gillen’s bid, required that Breakwater II be constructed with AIII stone weighing 8 to 10 tons each, cubic in shape, and which met other specifications contained in the manual.

In addition, the project manual required that the stone be procured solely from Valders Stone and Marble, Inc. (Valders). In mid-May 1986, Lake Forest contracted with Valders to supply 3,900 tons of AIII stone to Gillen. An addendum to that contract specifically required that all materials supplied by Valders conform to the requirements set forth in the project manual.

Construction of Breakwater II began in mid-September 1986, after Gillen had constructed a base for the breakwater. Around that same time, Valders supplied the first of three projected shipments of AIII stone to Gillen. Said stone had been inspected and approved as complying with the contract specifications by an agent of Lake Forest at the Valders quarry.

The first shipment did not meet the contract specifications, particularly as to dimensions and cubic shape. Gillen superintendent Robert Wendorf complained to Lake Forest’s site engineer and notified Valders that the stone was irregular, noncubic and nonconforming. Lake Forest’s engineer instructed Gillen to select the better of the nonconforming stone and attempt to jigsaw the noncubic stone into the Breakwater II construction. This resulted in delays in the construction of the breakwater.

According to Gillen’s complaint, this delay caused its tug, the “Andrew J,” to be towing a loaded stone scow from Lake Forest to Waukegan, Illinois, in connection with Gillen’s construction of the Breakwater II on October 8, 1986, despite the fact that towing was to have been completed by September 23, 1986, to avoid the seasonal high seas and strong winds on Lake Michigan. The “Andrew J” encountered high seas and strong winds on October 8, 1986, and sank.

Valders continued to supply nonconforming stone to Gillen. Halfway through the installation of the second load, Lake Forest’s engineer agreed with Gillen that the stone could not be used for the project. Lake Forest then ordered Gillen to halt installation of the stone. Approximately 2,800 of the 3,900 tons of the stone had been installed. Lake Forest issued a change order in which the design of the breakwater was changed so as to require less of the nonconforming stone.

Gillen continued construction until work on the project was halted by mutual agreement due to winter storms. Construction was to resume in the spring of 1987. Gillen submitted a claim to Lake Forest for the additional costs it had incurred and would incur due to the nonconforming stone. Lake Forest denied this claim. In March, Lake Forest issued another change order requiring that certain portions of the AIII cubic stone steps be replaced with reinforced, precast concrete units, but this change order did not provide for additional compensation. Gillen refused to sign the change order, but did replace the stone with the concrete units as requested. Gillen completed construction on Breakwater II on May 14, 1987.

Gillen filed its amended complaint against Lake Forest and Valders on August 31, 1989. All claims against Valders were voluntarily dismissed without prejudice on February 15, 1990. Counts IV through IX were directed against Lake Forest. Count IX was dismissed for failure to state a cause of action on March 9, 1990, pursuant to a motion by Lake Forest. That count contained a "betterment” or "unjust enrichment” claim seeking additional compensation for improving and bettering the construction of the breakwater.

Subsequently, Lake Forest moved for a judgment on the pleadings. On October 19, 1990, the court granted Lake Forest’s motion as to all damages sought in paragraphs 19 through 24 of the amended complaint and stated that its order was final and appealable, finding that there was no just reason to delay its appeal pursuant to Supreme Court Rule 304(a). (134 Ill. 2d R. 304(a).) On November 2, 1990, the court modified its October 19 order by granting judgment on the pleadings only as to damages relating to the sinking of the tug, the "Andrew J,” and deleting the portion of the order containing Rule 304(a) language. Gillen then moved to dismiss voluntarily the remainder of its causes of action against Lake Forest. The trial court granted this motion on December 14, 1991.

As a preliminary matter, Lake Forest has filed a motion in this court to dismiss the appeal or, in the alternative, to strike certain portions of Gillen’s brief. Lake Forest contends this court lacks jurisdiction to hear the appeal because Gillen voluntarily dismissed the case. We disagree.

Lake Forest is correct in stating that as a general rule a plaintiff cannot appeal an order of voluntary dismissal. (See Kahle v. John Deere Co. (1984), 104 Ill. 2d 302.) An order of voluntary dismissal cannot be appealed by the plaintiff since he or she requested the order and thus is protected from prejudice by the statute of limitations which gives the plaintiff the absolute right to refile the action within one year of a voluntary dismissal without prejudice. (See Ill. Rev. Stat. 1989, ch. 110, par. 13 — 217; Kahle v. John Deere Co., 104 Ill. 2d at 306.) However, Gillen is not attempting to appeal the order for voluntary dismissal. Rather, Gillen is asking this court to review the court’s dismissal of count IX based upon Lake Forest’s motion to dismiss, as well as the court’s granting judgment on the pleadings as to all damages relating to the sinking of the tug “Andrew J,” which was also based upon a motion made by Lake Forest.

A voluntary dismissal pursuant to section 2 — 1009 of the Code of Civil Procedure is a final and appealable order (Swisher v. Duffy (1987), 117 Ill. 2d 376, 379), and this court has jurisdiction to consider the merits of these appeals. (Espedido v. St. Joseph Hospital (1988), 172 Ill. App. 3d 460, 466.) Until the court entered the order for voluntary dismissal, Gillen could not have appealed the dismissal of count IX of its amended complaint or the judgment on the pleadings as to all damages relating to the sinking of the tugboat absent a special finding that there was no just reason for delaying enforcement or appeal. 134 Ill. 2d R. 304(a).

Although the order granting judgment on the pleadings in favor of the defendant originally contained such language, the court subsequently struck the portion of the order containing that language. As such, Gillen was prevented from appealing the aforementioned orders until a final order was entered.

The order voluntarily dismissing the remaining counts disposed of all matters pending before the trial court concerning Gillen’s cause of action, and, thus, the previous orders became final and appealable at that time. Accordingly, Lake Forest’s argument that this court does not have jurisdiction to hear Gillen’s appeal because Gillen voluntarily dismissed its cause of action against the city is meritless.

In the alternative, Lake Forest moves to strike the portion of Gillen’s brief arguing the trial court erred in entering its order dismissing count IX of Gillen’s complaint because Gillen did not specify its appeal of that order in its notice of appeal. We agree, and, accordingly, we strike that portion of Gillen’s brief as we have no jurisdiction to consider it.

Supreme Court Rule 303(c)(2), which is jurisdictional in nature, requires that the notice of appeal specify the judgment or part thereof appealed from and the relief sought from the reviewing court. (134 Ill. 2d R. 303(c)(2).) Gillen’s notice of appeal fails to mention the order of March 9, 1990, granting Lake Forest’s motion to dismiss. The notice of appeal reads:

“Now comes the plaintiff-appellant, Edward E. Gillen Company ***, and appeals to the Appellate Court ***, from the order entered by the Honorable Jack Hoogasian on October 19, 1990, and amended by the Court’s order on November 2, 1990, and made final and appealable by the Court’s order of December 14, 1990. By this appeal, the plaintiffs will ask the Appellate Court for a reversal of the trial court’s order dismissing certain counts of the plaintiff’s complaint and for a remand to the Circuit Court for further handling of those claims.”

Gillen argues that the last sentence of its notice of appeal is sufficient to meet the requirements set forth in Rule 303(c)(2). Gillen contends that, although the March 9, 1990, order is not specifically referenced, it is obvious that Gillen would be seeking review of that order because count IX was the only count “dismissed” by the trial court. We disagree.

This court has held that, where a plaintiff’s notice of appeal was from a summary judgment order as to certain counts and did not refer to an earlier order dismissing other counts, a reviewing court lacks jurisdiction to consider the earlier dismissal order. (See Village of Lisle v. Village of Woodridge (1989), 192 Ill. App. 3d 568; Long v. Soderquist (1984), 126 Ill. App. 3d 1059.) Similarly, in Illinois Central Gulf R.R. Co. v. Sankey Brothers, Inc. (1979), 78 Ill. 2d 56, our supreme court held that the failure to mention an earlier order dismissing a counterclaim in the notice of appeal seeking review of a summary judgment order deprived the reviewing court of jurisdiction to consider the dismissal order. 78 Ill. 2d at 61.

Although our supreme court has held that a notice of appeal need not specify a particular order to confer jurisdiction if the order specified in the notice of appeal directly relates back to the judgment or order sought to be reviewed (Burtell v. First Charter Service Corp. (1979), 76 Ill. 2d 427, 434), this court has found that an order dismissing earlier counts of a complaint is not a step in the “procedural progression” leading to the summary judgment order as to the remaining counts; therefore, jurisdiction as to the dismissal of the earlier counts is lacking. (Village of Lisle v. Village of Woodridge, 192 Ill. App. 3d at 572-73.) We find the present situation analogous. It was not necessary for the trial court to have entered the order dismissing count IX on March 9, 1990, for it to subsequently grant judgment on the pleadings as to all counts concerning damages relating to the sinking of Gillen’s tugboat.

Gillen argues that strict, technical compliance with Rule 303(c)(2) is not necessary and that the last sentence of its notice of appeal was sufficient to confer jurisdiction to review the March 9, 1990, order because count IX was the only count technically dismissed by the trial court. However, the last sentence merely informs this court of the relief sought by Gillen on appeal. The first sentence quite clearly specifies the orders from which Gillen is appealing. Nowhere does Gillen mention the March 9 order.

Moreover, Gillen’s argument that the notice of appeal was sufficient because the March 9 order was the only order to dismiss involuntarily any of Gillen’s counts is undermined by the wording contained in the notice of appeal itself. The last sentence of the notice reads, “reversal of the trial court’s order dismissing certain counts of the plaintiff’s complaint.” (Emphasis added.) The word “counts” is pluralized. However, the March 9 order dismissed only one count, count IX. It is not at all obvious upon reading that last sentence of the notice of appeal that Gillen intended to appeal the dismissal of count IX. Accordingly, this court does not have jurisdiction to review the March 9, 1990, order.

Gillen also contends on appeal that the trial court erred in granting judgment on the pleadings concerning all damages relating to the sinking of Gillen’s tugboat. Judgment on the pleadings is properly granted when the pleadings establish the absence of a genuine issue of material fact and the moving party’s entitlement to judgment as a matter of law. (State Farm Fire & Casualty Co. v. Kleckner (1990), 194 Ill. App. 3d 371, 375.) The motion may ask for judgment even though the only ground therefor is that the allegations of the complaint are insufficient to state a cause of action. Mitchell v. Waddell (1989), 189 Ill. App. 3d 179, 182.

Gillen argues that its amended complaint sufficiently alleged that the delay resulting from the supply of nonconforming stone directly and proximately caused damage to Gillen, including the sinking of its tug. On appeal, Gillen argues that its amended complaint sufficiently pleaded the sinking of its tug was foreseeable. In support of this contention, Gillen cites cases sounding in tort. However, Gillen’s action against Lake Forest is based on breach of contract (including breach of express warranty, breach of implied warranty and reformation), not negligence. Where a contract has been breached, recoverable damages are those which (1) naturally result from the breach, or (2) are the consequence of special or unusual circumstances which were within the reasonable contemplation of the parties when making the contract. (Midland Hotel Corp. v. Reuben H. Donnelley Corp. (1987), 118 Ill. 2d 306, 318; Cencula v. Keller (1989), 180 Ill. App. 3d 645, 650.) Nothing in Gillen’s amended complaint supports an action for damages resulting from the sinking of the tugboat under a breach of contract theory.

Gillen mistakenly focuses on the issue of foreseeability instead of whether the sinking of the tug was a special or unusual circumstance within the reasonable contemplation of the parties when they made the contract. In Cencula v. Keller (180 Ill. App. 3d at 650), we found that the trial court erred in instructing the jury that a party could recover under a breach of contract theory if its damages were foreseeable. Rather, we held that the trial court should have instructed the jury to award the damages only if such damages were within the reasonable contemplation of the parties when making the contract. (180 Ill. App. 3d at 651-52.) As a matter of law, Gillen’s complaint is insufficient to state a cause of action to recover damages resulting from the sinking of its tugboat because it fails to establish that such damages were within the reasonable contemplation of the parties when they contracted.

Accordingly, the judgment of the circuit court of Lake County is affirmed.

Affirmed.

UNVERZAGT and McLAREN, JJ., concur.


author: PRESIDING JUSTICE REINHARD

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARIANO MORALES, Defendant-Appellant.
    Second District
    No. 2 — 89—0974
    Opinion filed October 23, 1991.

      G. Joseph Weller and Manuel S. Serritos, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Gary V. Johnson, State’s Attorney, of Geneva (William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE REINHARD

delivered the opinion of the court:

Defendant, Mariano Morales, was found guilty by a jury in the circuit court of Kane County of the offenses of possession with intent to deliver a substance containing cocaine (Ill. Rev. Stat. 1987, ch. BGVa, par. 1401(b)(2)), possession of a substance containing cocaine (Ill. Rev. Stat. 1987, ch. 561/2, par. 1402(b)), possession of a substance containing cannabis (Ill. Rev. Stat. 1987, ch. 561/2, par. 704(d)), and possession with intent to deliver a substance containing cannabis (Ill. Rev. Stat. 1987, ch. 561/1, par. 705(d)). Judgment was subsequently entered by the trial judge on both counts charging intent to deliver, and the verdicts on the possession counts were vacated. Defendant was sentenced to concurrent five-year terms of imprisonment to be served consecutively to a sentence in an unrelated case (No. 88 — CF—991) and fined $800.

On appeal, defendant raises two issues: (1) whether the stop and frisk pursuant to Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868, was proper; and (2) whether the simultaneous possession with intent to deliver the controlled substance and cannabis requires the vacation of the lesser offense.

The facts in this case are generally not in dispute. At a hearing on defendant’s motion to suppress evidence, Officer Nick Coronado, a four-year officer of the Aurora police department, testified that on the evening of December 4, 1988, he was in uniform on patrol in a marked squad car. From a distance of about 20 feet, he saw defendant and another man approach each other and appear to exchange something. Although he characterized the men’s behavior as a “drug-type action,” Officer Coronado saw no drugs or money exchanged between the two men. After Officer Coronado shined a spotlight on the two men, defendant walked away toward the corner of Claim and Union Streets in Aurora, and the other man entered a nearby store. Defendant was walking with his hands in a cupped fashion. Defendant turned south on Union and walked about half a block. Coronado and his partner, Officer Greg Thomas, followed in the squad car. Officer Coronado decided to stop defendant because he thought defendant either made a drug purchase or sale. The officers again shined the squad car spotlight on defendant and pulled up next to him. Officer Coronado exited the car and asked defendant what had been exchanged. Defendant said nothing and shrugged his shoulders. Officer Coronado shined his flashlight towards defendant’s hands. Officer Coronado then asked defendant what was in his hands, and defendant showed him a cardboard box which looked like a butane lighter fluid box. Coronado did not examine the box at that time but later, after defendant was arrested, determined it to contain a tube of butane lighter fluid.

Officer Coronado testified that he “noticed [defendant] had a bulge in his pocket.” The bulge was eight inches long and protruded an inch to an inch and a half from the upper right side of defendant’s jeans’ jacket pocket. Officer Coronado initially thought that the bulge was a firearm. He told defendant to put his hands on the squad car, but defendant took a step backward. Officer Coronado again told defendant to put his hands on the squad car, and again defendant took a step back. Defendant appeared to be very nervous. Officer Coronado then placed a hand on defendant and guided him to the squad car.

When Officer Coronado frisked defendant and squeezed the bulge, it compressed. According to Coronado, “I squeezed the bulge and it made like a crackling sound, and it felt like it was a baggie or some type of plastic bag.” He testified that he had felt cannabis in a plastic bag through clothing like defendant’s 12 to 18 times previously. Based on his experience, Coronado immediately thought that it was a bag of cannabis.

After asking defendant what was in his pocket and receiving no response, Coronado reached in and pulled the bag out about three inches. He saw that it contained a green plant material which he believed was cannabis and arrested defendant. Incident to the arrest, Coronado searched defendant and found another plastic bag which contained a white powdery substance and two marijuana cigarettes.

The trial court denied defendant’s motion to suppress. In denying the motion, the trial judge stated the following:

“The part that bothered me was once they patted him down, that they felt something that they knew was not a weapon, did they have a right to go into the inside of his pocket and pull it out.
One of the cases [the prosecutor] gave me is a California case, and there is another one from Illinois, basically stated based on experience, et cetera, that they can do it, which somewhat surprised me. But that’s my justification for it. Motion denied.”

At trial, Officer Coronado’s testimony was generally the same. Testimony also established that there were 11 packets of cocaine in the plastic bag which contained a total of 5.3 grams of cocaine and that the cannabis weighed 35 grams.

As to the first issue of whether the stop and frisk was proper, defendant initially contends that Officer Coronado’s actions in initially stopping him were based on a hunch and not a substantial possibility of criminal conduct. The State asserts that the stop was proper based on certain observations of Coronado: specifically that there appeared to be an exchange, that defendant’s hands were cupped together as if holding something, that defendant did not respond verbally to questioning and that defendant and the other man immediately separated when they saw the police. We note that, in reviewing a ruling on a motion to quash arrest and suppress evidence, a reviewing court will not reverse the trial court’s denial of the motion unless it was clearly erroneous. People v. Henderson (1990), 142 Ill. 2d 258, 293, 568 N.E.2d 1234.

Initially, we note that the trial judge sustained defendant’s objections when the State sought to elicit testimony concerning past criminal activity in the area of Claim and Union Streets. This appears to contradict case law which has considered the criminal activity in an area as a factor in determining whether an investigatory stop was proper. See, e.g., People v. McGowan (1977), 69 Ill. 2d 73, 78-79, 370 N.E.2d 537; In re F.R. (1991), 209 Ill. App. 3d 274, 280, 568 N.E.2d 133; People v. Campbell (1987), 161 Ill. App. 3d 147, 152-53, 514 N.E.2d 241.

Neither defendant nor the State disputes at what point the seizure of defendant occurred. Both the State and defendant seem to assume the seizure occurred when Coronado exited the squad car and approached defendant. Accordingly, we will address the propriety of the Terry stop at that point in time.

A police officer may make a valid investigatory stop absent probable cause for an arrest, provided that the officer’s decision is based on specific, articulable facts which warrant the investigative stop intrusion. (Terry v. Ohio (1968), 392 U.S. 1, 21, 20 L. Ed. 2d 889, 906, 88 S. Ct. 1868, 1879-80.) An officer may properly stop a person if the officer possesses knowledge of sufficient articulable facts to create a reasonable suspicion that the person has committed, or is about to commit, a crime. People v. Smithers (1980), 83 Ill. 2d 430, 434, 415 N.E.2d 327; Ill. Rev. Stat. 1989, ch. 38, par. 107 — 14.

At the time of the seizure, Officer Coronado possessed knowledge of the following facts: defendant was holding his hands in a cupped manner, close to his body; defendant had appeared to exchange something with another man which Coronado characterized as a “drug-type action”; and defendant and the other man immediately separated when the officers arrived. We believe that these facts are sufficient to create a reasonable suspicion to justify the investigative stop.

Defendant next contends that, even if Officer Coronado properly stopped him, the frisk was improper because Coronado had no legitimate reason to fear for his or his partner’s safety. Defendant contends that, because there was no testimony that defendant reached for the bulge, Coronado had no legitimate reason to believe defendant was armed. This contention is without merit.

The right to frisk does not automatically follow the right to stop. (People v. Galvin (1989), 127 Ill. 2d 153, 165, 535 N.E.2d 837.) In determining whether a frisk is proper, each case must stand or fall on its own facts. (Galvin, 127 Ill. 2d at 174, 535 N.E.2d at 846.) An officer may conduct a frisk only if he has reason to believe that he is dealing with an armed and dangerous individual and that either his safety, or the safety of others, is in danger. (Smithers, 83 Ill. 2d at 434-35, 415 N.E.2d at 330; see Ill. Rev. Stat. 1989, ch. 38, par. 108— 1.01.) The sole justification of a frisk is the protection of the officer and others nearby; it is not to gather evidence. (Galvin, 127 Ill. 2d at 170, 535 N.E.2d at 845.) A characteristic bulge in a validly stopped suspect’s clothing is a circumstance which is generally sufficient to warrant a frisk. People v. Pittman (1984), 126 Ill. App. 3d 586, 592, 467 N.E.2d 918; People v. Blakes (1977), 55 Ill. App. 3d 654, 658, 370 N.E.2d 869; see 3 W. LaFave, Search & Seizure §9.4(a), at 507 (2d ed. 1987).

In this case, Officer Coronado testified that he thought the large bulge in defendant’s jacket was a weapon. The bulge combined with the other circumstances attendant to the reasons for the stop was sufficient to give Coronado reason to believe defendant was armed.

Defendant finally contends that, even if Officer Coronado properly stopped and frisked him, the scope of the search was improper because after squeezing the bulge, Coronado should have known that it was not a weapon and searched no further.

For an officer lawfully to remove from a person’s clothing an object the officer feels during a pat-down search, that officer must believe the object might be a weapon and articulate a basis for that belief. (People v. Ricksy (1990), 206 Ill. App. 3d 302, 309, 564 N.E.2d 256; People v. Conard (1991), 213 Ill. App. 3d 1068, 1072, 572 N.E.2d 1203.) Items that do not feel like weapons or do not feel like they contain weapons may not be removed. (People v. Campbell, 161 Ill. App. 3d at 153, 514 N.E.2d at 245.) Generally, absent other circumstances, once an officer determines that a bulge is soft, the search may not proceed further under the limited scope authorized by Terry. People v. Creagh (1991), 214 Ill. App. 3d 744, 748, 574 N.E.2d 96; In re F.R., 209 Ill. App. 3d at 282, 568 N.E.2d at 138.

Here, the removal of the bag from defendant’s person once Officer Coronado had felt the bulge and had no reason to suspect it was a weapon cannot be justified under the limited scope of a Terry pat down and seizure of a weapon so discovered.

However, this holding does not end our analysis. “Assuming the object discovered in the pat-down does not feel like a weapon, this only means that a further search may not be justified under a Terry analysis. There remains the possibility that the feel of the object, together with other suspicious circumstances, will amount to probable cause that the object is contraband or some other item subject to seizure, in which case there may be a further search based upon that probable cause.” 3 W. LaFave, Search & Seizure §9.4(c), at 524 (2d ed. 1987); cf. People v. Bujdud (1988), 177 Ill. App. 3d 396, 403, 532 N.E.2d 370 (investigatory stop “matured to probable cause”); People v. Valdez (1987), 196 Cal. App. 3d 799, 806, 242 Cal. Rptr. 142, 146 (“officer’s entry into the individual’s pocket can only be justified if the officer’s sensorial perception, coupled with the other circumstances, were sufficient to establish probable cause to arrest the defendant for possession of narcotics before the entry into the pocket”) (emphasis in original).

Probable cause exists when the totality of the facts and circumstances known to the officer is such that a reasonably prudent person would believe that the suspect is committing or has committed a crime. (People v. Montgomery (1986), 112 Ill. 2d 517, 525, 494 N.E.2d 475.) Whether probable cause is present is governed by commonsense considerations, and the calculation concerns the probability of criminal activity, rather than proof beyond a reasonable doubt. Montgomery, 112 Ill. 2d at 525, 494 N.E.2d at 477-78.

In the instant case, Officer Coronado’s uncontradicted testimony was that when he squeezed the bulge in defendant’s pocket, he immediately believed, based upon his prior experience in about 12 to 18 cases in feeling cannabis in a plastic bag through clothing similar to defendant’s, that the bulge was a bag containing cannabis. As possession of cannabis is a violation of the Cannabis Control Act (Act) (Ill. Rev. Stat. 1989, ch. 561/2, par. 704), under the circumstances, there was probable cause to reach inside defendant’s jacket and seize what the officer believed was contraband prohibited under the Act. (See Texas v. Brown (1983), 460 U.S. 730, 742-43, 75 L. Ed. 2d 502, 514, 103 S. Ct. 1535, 1543-44.) Accordingly, based on the uncontradicted testimony presented here, the ruling of the trial court denying defendant’s motion to quash arrest and suppress evidence was not clearly erroneous both as to the cannabis seized and the cocaine discovered following a search of defendant incident to his lawful arrest for the cannabis violation.

The second issue defendant raises is that People v. Manning (1978), 71 Ill. 2d 132, 374 N.E.2d 200, requires us to vacate his conviction of possession of cannabis with intent to deliver.

In People v. Manning (1978), 71 Ill. 2d 132, 374 N.E.2d 200, our supreme court held that in the absence of a statutory provision to the contrary, the simultaneous possession of more than one type of controlled substance constituted a single offense, and, thus, only one sentence should be imposed. (71 Ill. 2d at 137, 374 N.E.2d at 202.) However, Manning appears to be based on a statutory analysis rather than a single-act analysis (People v. Green (1990), 199 Ill. App. 3d 927, 932, 557 N.E.2d 939) and has been held to be inapplicable where two different statutes are concerned (People v. Tovar (1988), 169 Ill. App. 3d 986, 995, 523 N.E.2d 1178). Because defendant was convicted of separate offenses under two different statutes, the Cannabis Control Act (Ill. Rev. Stat. 1987, ch. 561/2, par. 702 et seq.) and the Illinois Controlled Substances Act (Ill. Rev. Stat. 1987, ch. 561/2, par. 1100 et seq.), Manning is inapplicable.

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

Affirmed.

DUNN and BOWMAN, JJ., concur.


author: JUSTICE UNVERZAGT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN GARNER LOVELACE, Defendant-Appellant.
    Second District
    No. 2 — 89—0939
    Opinion filed October 23, 1991.

      G. Joseph Weller and Paul J. Glaser, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Michael J. Waller, State’s Attorney, of Waukegan (William L. Browers and Martin P. Moltz, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

Defendant appeals from his conviction in the circuit court of Lake County, of the offense of murder (Ill. Rev. Stat. 1989, ch. 38, par. 9— 1(a)(1)).

In October 1988 defendant was charged by indictment with the 1983 murder of Eugene “Bo” Green. Count I of the indictment alleged murder during the commission of armed robbery, a felony, in violation of section 9 — 1(a)(3) of the Criminal Code of 1961 (Criminal Code) (Ill. Rev. Stat. 1989, ch. 38, par. 9 — 1(a)(3)). Count II alleged that defendant shot Green in the head, knowing that such act would cause Green’s death, in violation of section 9 — 1(a)(1) of the Criminal Code (Ill. Rev. Stat. 1989, ch. 38, par. 9 — 1(a)(1)). A jury acquitted defendant of the felony murder count, but convicted him of the murder count. Defendant was sentenced to a 40-year term of imprisonment.

On appeal, defendant contends that he was not proved guilty beyond a reasonable doubt. Where, as here, the evidence against the defendant is purely circumstantial, the standard of review is whether, viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could find the essential elements of the crime beyond a reasonable doubt. People v. Berry (1990), 198 Ill. App. 3d 24, 28.

The body of Eugene Green was found stuffed into a storage trunk in a heavily wooded lot in Waukegan on February 16, 1983. An autopsy did not disclose how long the body had been dead; however, the cause of death was attributed to gunshot wounds to the head from a .38 caliber gun. No one was charged with the murder until October 1988 when a grand jury returned the two-count indictment against defendant.

At trial, Gary Kaya testified that he and “Bo” Green were involved in negotiating a drug deal with defendant in January 1983. Kaya and Green had been to defendant’s house on January 8 and agreed to sell approximately 41 grams of heroin to defendant for $40,000. Green returned to defendant’s house on the afternoon of January 10 and again later that night to consummate the deal. Green allegedly had the heroin hidden in one of his boots, along with a .38 caliber pistol. When Kaya called defendant’s house that night, defendant told him that Green had left. According to Kaya, defendant told him that Green walked down the street and got into a car; defendant then told him that Green had first called Robin Casselberry and then gotten into a car. Kaya never saw Green again. Kaya also believed that he recognized the trunk in which Green was found as a trunk he had seen in defendant’s house on January 8; however, he was not 100% certain that it was the same trunk.

Ronald Green, Eugene’s brother, testified that he and a companion went to defendant’s house at approximately 10:30 p.m. on January 10 to find his brother. Defendant told Ronald that Green had left with a girl in a red car. Defendant also told Ronald that Green “got what he was supposed to get, [that] he gave Bo what he needed and [that] Bo had gone.” Ronald identified the trunk in which Green was found as the trunk he saw in defendant’s garage on January 10, although he could not say for sure that it was the same trunk, as the trunk in court was dirtier, rustier, and older than he remembered. Ronald also admitted that, when he spoke to police in 1983, he never told them anything about seeing a trunk in the garage.

Robin Casselberry testified that she drove Green to defendant’s house on the afternoon of January 10 in a red Plymouth or Dodge automobile. Casselberry stated that she waited in the car while Green entered the residence. During this time, she could see into defendant’s garage, and she did not see a trunk in the garage. She also stated that another red car driven by a white male was circling the block while she was parked in the driveway of defendant’s house.

Mary Carter testified that in February 1983 she saw a picture in the newspaper of the trunk in which Green’s body was found. Carter stated that this reminded her of an incident which occurred late in January 1983, when she saw three men looking at a similar trunk in a Salvation Army store in Waukegan. One of the men was an older, well-dressed man wearing a hat; Carter identified defendant in court as the older man. Carter did not know defendant in 1983. She also stated that she did not know if the men purchased the trunk. On cross-examination, Carter admitted that she did not pay much attention to the men at the time. In addition, she did not talk to the police about the incident until October 1988. At that time, she picked defendant’s photograph from a photographic array in which the only picture of an older black man was that of defendant. Furthermore, the older man in the store was wearing a hat, and she could not see his hair; in his picture, defendant wore no hat.

Several police officers testified as to conversations they had with defendant both before and after his arrest. All the accounts the defendant gave of Green’s visit on the night of January 10 were substantially the same; however, the accounts varied as to exactly how Green left defendant’s home that night. The accounts ranged from Green walking away alone to Green getting into a large dark-colored car which backed down the street. The accounts also contained discrepancies as to whether defendant declined or accepted Green’s invitation to involve himself in the deal. Only one officer testified as to the existence of a trunk. Officer Shipley of the Waukegan police department testified that defendant told him, when asked, that he had a trunk with a lamp on it in the living room of his house. However, defendant denied purchasing the trunk from the Salvation Army.

Defendant never testified on his own behalf. The defense presented the testimony of Mattie Clinton, an employee of the Salvation Army store and an acquaintance of defendant. Clinton testified that she never saw defendant in the store in January or February 1983. Lorene Woods testified that defendant’s reputation in the community was of a nonviolent peacemaker. The defense also presented the testimony of Agent Grady of the Illinois State Police. Grady testified that, after Gary Kaya was arrested on a drug charge, Kaya stated that Green was wearing different clothes on January 10 than those in which he was found. Grady also stated that Kaya told him that Kaya was to receive $40,000 from the alleged drug sale to defendant, $17,000 of which was a debt already owed by Green to Kaya.

Viewing this evidence in a light most favorable to the prosecution, we conclude that defendant was not proven guilty beyond a reasonable doubt. The State has produced scant evidence to tie defendant to Green’s murder. The State’s case, in essence, revolves around three things: (1) that defendant had a motive to kill Green; (2) that none of the State’s witnesses saw Green alive after he went to defendant’s house; and (3) that defendant had a trunk at least similar to the trunk in which Green’s body was found. None of these bases provides any real support for the State’s case. First, the State argues that defendant “set up” Green to kill him and steal the drugs allegedly involved in the deal. The State points to the facts that defendant did not have $40,000, the alleged selling price of the drugs, in his bank account and that defendant did not want Kaya to accompany Green to his residence after the initial meeting. However, the jury acquitted defendant of the felony murder charge; it is apparent that the jury did not subscribe to the State’s theory of armed robbery and murder. Similarly, we find little to support this theory and refuse to find defendant guilty on a charge rejected by the jury. Second, the fact that the State’s witnesses never saw Green again does not mean that no one saw Green after he went to defendant’s house. Defendant testified that Green left the house and may or may not have been picked up by someone else. The fact that defendant’s story as to exactly how Green left defendant’s house has changed over the years is not, in our opinion, critical. The story was substantially the same each time it was told. While suspicious, these inconsistencies are minor when the evidence as a whole is viewed. (See People v. Howard (1979), 74 Ill. App. 3d 870, 878.) Additionally, a conviction must rest on the strength of the State’s case, not the weakness of the defendant’s case. (Howard, 74 Ill. App. 3d at 878.) The State has shown nothing other than that defendant had an opportunity to kill Green. However, an opportunity to commit a crime is not enough to sustain a conviction unless the State can show that no one else had the opportunity to commit the crime. (People v. Jenkins (1983), 117 Ill. App. 3d 33, 39.) Here, there was testimony that Green left defendant’s house on January 10. Green’s body was found approximately six weeks later, approximately 1/2 miles from defendant’s house. The opportunities for others to kill Green were numerous. The State simply did not prove that defendant took his opportunity to kill Green.

Furthermore, the State’s evidence regarding the trunk is incomplete at best and confused at worst. No one was sure that the trunk in which Green was found was the same trunk he or she had seen either in defendant’s house or his garage. Mary Carter testified that she saw defendant looking at a trunk in the Salvation Army store late in January 1983; however, Gary Kaya testified that he saw the trunk on January 8 in defendant’s house, and Ronald Green said that he saw it on January 10 in defendant’s garage. Carter did not know if defendant purchased the trunk. Ronald Green did not even mention the trunk to the police for five years. Finally, there was no evidence as to whether defendant still had a trunk in his house or his garage after January 10. This evidence, conflicting in some ways, absent in others, is simply too nebulous to provide a basis for a conviction. Defendant is to be accorded a basic presumption of innocence as the accused in a criminal case (see Howard, 74 Ill. App. 3d at 878); the jury has a duty to resolve all circumstances and facts on a theory of that innocence if that can reasonably be done. (Jenkins, 117 Ill. App. 3d at 39.) The State here has provided little more than speculation and conjecture as to how Eugene Green met his violent end; this is not sufficient to overcome defendant’s presumption of innocence. See Howard, 74 Ill. App. 3d at 878.

Accordingly, we reverse the judgment of the circuit court of Lake County.

Reversed.

DUNN and McLAREN, JJ., concur.


author: JUSTICE NICKELS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LYLE C. KELCHNER, Defendant-Appellant.
    Second District
    No. 2 — 89—1311
    Opinion filed October 30, 1991.

      G. Joseph Weller and Kathleen J. Hamill, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Daniel A. Fish, State’s Attorney, of Dixon, and Howard M. Goldrich, of Skokie (William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE NICKELS

delivered the opinion of the court:

Defendant, Lyle Kelchner, was convicted of aggravated criminal sexual abuse pursuant to section 12 — 16(c)(l)(i) of the Criminal Code of 1961 (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 16(c)(l)(i)) and was sentenced to an extended term of 10 years’ imprisonment. Defendant contends on appeal that he was not proved guilty beyond a reasonable doubt. Defendant also claims that the trial court abused its discretion in sentencing him to an extended term of 10 years’ imprisonment.

On July 15, 1989, defendant was charged by information with aggravated criminal sexual abuse. The information alleged that defendant, who was 17 years of age or older, committed an act of sexual conduct with the victim, who was under the age of 13, in which defendant knowingly fondled the vaginal area of the victim through her clothing for the purpose of defendant’s sexual arousal.

On October 24, 1989, a jury trial was held. The first person to testify was the victim. The victim stated she was 10 years old and that on July 15, 1989, she had been swimming in Mendota, Illinois, with her sister, defendant, his wife, and their baby. After the party finished swimming, they returned to defendant’s apartment, which was located at the Alpha Motel in Dixon, Illinois. The victim testified that it was still light outside. The victim also stated that two adults, Kent and Linda, and their child Ricky were also present at defendant’s apartment.

After having something to eat, the victim, her sister, and Ricky went outside to play. The adults were still in the house. Defendant came outside and came up behind the victim and grabbed her. The victim testified that she recognized defendant when he ran past her to go back into the house. She also stated that defendant grabbed her where “I go pee and he squeezed.” This incident lasted about two seconds. The victim further testified that later when it was dark, defendant again came up to her from behind and again grabbed her “where I go pee and he squeezed.” The victim stated that defendant did not merely brush the back of her pants, but reached in between her legs to her crotch. The second incident lasted about a second, and again the victim said she saw defendant as she turned around and he was going back into the house.

At the time these incidents occurred, the victim testified that the only other people outside were her sister, who was pushing defendant’s baby around, and Ricky. The victim stated that during the second incident in question her sister was in the driveway with defendant’s baby and the victim was over across the driveway. During both incidents, Ricky was “down the hill” from the victim. The victim testified that the incident made her feel “mad” and “angry.”

The next witness to testify for the State was Officer Jean Miller of the Dixon, Illinois, police department. She testified that she had interviewed the victim and arrested defendant and that defendant lived at the Alpha Motel in Dixon, Illinois, which is located in Lee County. After Officer Miller testified, the State rested.

Defendant moved for a directed verdict which the trial court denied. Defendant then called Kent Fortner as a witness. Fortner testified he had been defendant’s friend for about five years. He stated that on the day in question he was helping defendant install a television antenna. He stated that he was outside most of the time and only went inside the apartment once or twice. He recalled that while he was working and when defendant was outside, the girls would tease defendant by calling him by his brother’s name, Frank. When this happened, defendant would tickle the victim under her arms. Fortner stated that he never saw defendant touch the victim anywhere but under her arms and that when defendant was outside, Fortner could see him at all times.

However, on cross-examination, Fortner admitted that his work on the antenna required that he twist the antenna wires, move the antenna to provide for better reception, and look into the house to see how the television channels were coming in on defendant’s television set. In spite of these activities, Fortner maintained that defendant was in his sight at all times when defendant and the girls were outside. After Fortner testified, the defense rested.

In rebuttal, the victim said that during the incidents in question Fortner had been inside the apartment. The jury found defendant guilty as charged, and the trial court entered a judgment of conviction.

During the sentencing hearing, the court noted that defendant was eligible for an extended term pursuant to section 5 — 5—3.2(b)(1) of the Unified Code of Corrections (Code) (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 5—3.2(b)(1)) as defendant had previously been convicted in Illinois of the same or greater class felony. The trial court also found that defendant was eligible for the extended term because the “offense was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty.” Ill. Rev. Stat. 1989, ch. 38, par. 1005-5-3.2(b)(2).

The trial court reviewed factors in aggravation. In referring to the factor “caused or threatened serious harm” (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 5—3.2(a)(1)), the trial court stated:

“The statute is clear in regard to the questions the Court has to consider. That the Defendant’s conduct cause or threaten serious harm. Well, I suppose that depends upon whether — how you interpret the phrase serious harm. There is no question that the studies in this country show that sexual abuse of children cause [sic] serious harm, which has a lasting effect, sometimes for their entire lives, and there are flashbacks. It occurs and continues to occur and effects [sic] their relationships with male figures, or female figures depending upon which sex they are, and that sometimes the counseling process goes for many, many years before the child — the affects [sic] of this conduct can be mitigated.”

The trial court reviewed mitigating factors concerning defendant. It referred to a letter attached to the presentence investigation report from the Sinnissippi Mental Health Center written in May 1986. The letter indicated that defendant could not be evaluated for treatment until he changed his position of denial for the offense of sexual abuse. The trial court noted defendant's attitude then and the likelihood that defendant would commit the crime again. The court also referred to studies concerning pedophiles which showed that they continue to engage in the same conduct.

After balancing the need to protect society against defendant’s rehabilitative potential, the trial court ordered that defendant be given an extended sentence of 10 years’ imprisonment in the Illinois Department of Corrections.

Defendant contends on appeal that he was not proved guilty beyond a reasonable doubt because the complainant’s testimony was not clear and convincing and there was no corroborating evidence. Previously, cases have held that where a defendant denies wrongdoing, a conviction of sexual abuse will be upheld only where the complainant’s testimony is clear and convincing unless it has been substantially corroborated by other evidence. (See People v. Diaz (1990), 201 Ill. App. 3d 830; People v. Thompson (1990), 198 Ill. App. 3d 417.) As the State notes in its brief and defendant in his reply brief, sex-crime victims are no longer placed under an additional burden regarding how persuasive their testimony must be. (In re A.J.H. (1991), 210 Ill. App. 3d 65, 71.) In People v. Pintos (1989), 133 Ill. 2d 286, 291, the supreme court disapproved of a particularized definition of reasonable doubt. The supreme court stated that the reasonable doubt test set forth in People v. Collins (1985), 106 Ill. 2d 237, 261, should be applied in reviewing the sufficiency of evidence in all criminal cases. Pintos, 133 Ill. 2d at 291.

A reviewing court will not set aside a conviction on the basis of insufficient evidence unless the proof is so improbable or unsatisfactory that there exists a reasonable doubt of defendant’s guilt. (Collins, 106 Ill. 2d at 261.) It is the jury’s function to determine the guilt or innocence of defendant. (People v. Eyler (1989), 133 Ill. 2d 173, 191.) It is not this court’s function to retry the defendant when considering a challenge to the sufficiency of the evidence of his guilt. (People v. Furby (1990), 138 Ill. 2d 434, 455.) “ ‘[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ *** ‘Once a defendant has been found guilty of the crime charged, the factfinder’s [sic] role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution.’ (Emphasis in original.)” Collins, 106 Ill. 2d at 261, quoting Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789.

Furthermore, it is the jury’s function to weigh the credibility of the witnesses and to resolve conflicts or inconsistencies in their testimony. (Eyler, 133 Ill. 2d at 191.) A reviewing court will not substitute its judgment for that of the trier of fact who heard the evidence and had the opportunity to observe the demeanor of the witnesses unless the evidence is so palpably contrary to the verdict or so unreasonable, improbable, or unsatisfactory as to cause a reasonable doubt of defendant’s guilt. (People v. Cooper (1987), 164 Ill. App. 3d 734, 737.) Because it is the function of the trier of fact, and not the court of review, to determine the credibility of the witnesses, where evidence is merely conflicting, the trier of fact’s judgment will stand. Cooper, 164 Ill. App. 3d at 737.

Defendant claims he was not proven guilty beyond a reasonable doubt because: (1) the complainant was inconsistent in her testimony about where she was touched; and (2) there was not a reasonable inference from the evidence that defendant acted with the intent to arouse or gratify himself sexually. Defendant argues no intent was shown where there was only casual touching between the victim and himself and where defendant would be taking an absurd risk in fondling the complainant when there were witnesses outside, including Fortner, who would have been able to observe the illegal activity.

We first conclude that the complainant’s testimony was not inconsistent. Defendant argues that complainant made varying statements as to where she was touched. For example, when asked where she was touched during both incidents, complainant responded that defendant came up behind her and grabbed and squeezed her “where I go pee.” When asked to further elaborate exactly where she was touched, complainant stated it was “in the middle” of her crotch and where her “legs came together.” She further stated that defendant did not simply brush the back of her pants but had reached through from her back side. These statements, far from being inconsistent, indicate that the complainant was describing the same area each time she was asked where she was touched. Therefore, we find no inconsistencies in her testimony about where the complainant was touched.

Next defendant contends that the evidence did not show that he acted with the intent to arouse or sexually gratify himself because the complainant’s testimony did not specifically indicate where she was touched and evidence was presented that defendant had been seen tickling the complainant in a nonsexual manner. Defendant also contends that an inference can be made that defendant would have been taking an incredible risk to touch the complainant in an illegal manner with the variety of witnesses that were outside at the time of the incidents in question. Again we do not find defendant’s argument persuasive.

We first note that defendant’s intent may be established by circumstantial evidence and may be inferred from defendant’s conduct. (People v. Goebel (1987), 161 Ill. App. 3d 113, 125.) As noted before, the complainant was clear as to where on her body she was touched. She also testified that defendant did not merely touch her there but that he “squeezed.” Thus it could be inferred that defendant’s acts constituted more than mere casual touching and that his acts actually involved the intent to cause his sexual arousal.

Defendant also argues that because of the number of people present outside when the acts occurred, defendant’s intent to commit the charged offense is even less likely considering the likelihood that defendant would be caught in the act. We disagree. Even though some people were outside during defendant’s criminal acts, they were not in a position to watch defendant and the victim at all times. The victim’s sister was outside, but the victim testified that her sister was in the driveway while she was on the other side of the driveway. Ricky Fortner, the son of Kent Fortner, was also outside, but the victim testified that he was “down the hill” from the victim. Kent Fortner testified that he was outside and observed defendant at all times; however, he admitted that he was also working on the television antenna. In addition, the victim testified that at the time the incidents occurred Fortner was inside the apartment. Finally, the duration of the illegal acts in question was only about two seconds; therefore, it can be inferred that defendant would be highly likely to commit the crime without detection even •with other people outside. Thus, in viewing the evidence in a light most favorable to the prosecution, the evidence was sufficient to permit the jury to conclude that all the elements of the crime were present.

Defendant next argues that the trial court abused its discretion in sentencing him to an extended term of 10 years’ imprisonment. Generally, a trial judge is given broad discretion in the sentencing of a defendant, and absent an abuse of this discretion, the sentence of the trial court may not be altered upon review. (People v. Perruquet (1977), 68 Ill. 2d 149, 153.) A trial court’s decision will not be overturned unless it is manifestly unjust or palpably erroneous. (People v. Hominick (1988), 177 Ill. App. 3d 18, 39.) The imposition of an extended term is also discretionary with the trial court. People v. Lighthall (1988), 175 Ill. App. 3d 700, 708.

Defendant contends that the trial court abused its discretion in sentencing him to an extended term based upon its finding that the offense was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty. (Ill. Rev. Stat. 1989, eh. 38, par. 1005 — 5—3.2(b)(1).) He asserts that the evidence does not support this finding. The State does not claim that the brutal or heinous factor was present in the offense.

In addition to noting the existence of the brutal or heinous behavior factor in the offense, the trial court also referred to the factor that an extended term was applicable where defendant was previously convicted of the same or greater class felony within 10 years. (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 5—3.2(b)(1).) The trial court noted defendant’s two prior convictions in 1986 of aggravated criminal sexual abuse, and the record supports that finding. Defendant concedes that he was eligible for an extended term due to his prior convictions.

Sentencing decisions are matters of judicial discretion which must be afforded great weight and deference, and so long as the sentence imposed is within statutory limits, the sentence will not be set aside absent an abuse of discretion. (People v. Sanford (1983), 116 Ill. App. 3d 834.) Defendant’s prior convictions are sufficient for imposition of an extended term. (People v. Jackson (1984), 122 Ill. App. 3d 166.) Accordingly, even if the finding with respect to the character of the offense was in error, an extended term was a proper discretionary sentence under the statute. (Sanford, 116 Ill. App. 3d at 845; see Jackson, 122 Ill. App. 3d at 170.) We need not address his argument concerning the brutal nature of the offense. People v. Tipton (1990), 207 Ill. App. 3d 688.

Defendant argues that there is no basis in the record to support the trial court’s finding that his conduct “caused or threatened serious harm.” (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 5—3.2(a)(1).) He points out that there was no testimony or other information such as a victim-impact statement which indicated any physical or psychological harm to the victim. Instead, the trial court relied upon unidentified studies which allegedly showed that children of sexual abuse are harmed and then found that defendant’s conduct caused or threatened serious harm.

The trial court’s reference to “studies in this country” concerning the harm to sexual abuse victims appears to be a personal observation on how the phrase “serious harm” may be interpreted in considering this aggravating factor. (See People v. Bosley (1990), 197 Ill. App. 3d 215.) The trial court understood serious harm to include psychological harm. Although psychological harm to a child is a proper aggravating factor (People v. Ulmer (1987), 158 Ill. App. 3d 148), the remarks tend to indicate an assumption on the trial court’s part that such serious harm resulted to the victim based on the unidentified studies.

While it was improper for the trial court to consider defendant’s conduct caused serious harm based on this factor, the reliance by the trial court on an improper factor in aggravation does not always require a reviewing court to remand the case for resentencing. (People v. Harvey (1991), 213 Ill. App. 3d 83.) Where it can be determined that an improper factor in aggravation did not lead to a greater sentence, no reversal is required. (People v. McCon (1989), 191 Ill. App. 3d 207; People v. Davis (1984), 124 Ill. App. 3d 813.) This standard was satisfied in this case. The trial court relied on other factors in aggravation. It was concerned with defendant’s past criminal history, his rehabilitative potential based upon this history, the need to deter others and that the interest and safety of society, especially children, were best served by a lengthy prison term. Therefore, we conclude that the trial court’s improper consideration of serious harm did not result in defendant receiving a greater sentence than would have been imposed without it.

Finally, defendant contends that the trial court’s conclusions regarding his attitude towards the crime and the likelihood he would commit the offense again were based on insufficient and improper evidence. He claims there was no real information about his lifestyle in 1986 which led to those crimes nor was there any evidence that he was advised to make changes or that he had accomplished any changes. Defendant also points to the trial court’s reference to unidentified studies on pedophiles as improper.

In imposing sentence the trial court may consider many factors including defendant’s credibility, demeanor, general moral character, mentality, social environment, habits and age. (Perruquet, 68 Ill. 2d 149.) The trial court must consider all matters reflecting upon defendant’s personality, propensities, purposes, tendencies and indeed every aspect of defendant’s life relevant to the sentencing proceeding. (People v. Ward (1986), 113 Ill. 2d 516.) The lack of remorse and defendant’s failure to show a penitent spirit may be properly considered in sentencing and must be evaluated in light of all the other information the court has about defendant. Ward, 113 Ill. 2d at 529.

The trial court reviewed the 1986 letter from the Sinnissippi Mental Health Center which provided that defendant could not be evaluated for treatment because of his denial of the crime. The trial court acknowledged that defendant’s attitude may have been different then, but also noted that it did not know whether defendant claimed innocence now because he did not make a statement. Defendant had not shown any remorse. Defendant had committed aggravated sexual abuse again. The trial court had a presentence investigation report on defendant and was aware of defendant’s history and background. The 1986 letter indicated that unless defendant acknowledged his crime, he could not even be evaluated let alone treated. This information showed defendant’s lack of desire to change his behavior in 1986 through treatment. Defendant’s present offense showed a failure to change his behavior since that time, i.e., he again committed a sexual abuse offense. There was sufficient evidence upon which the trial court could base its considerations of defendant’s attitude towards the crime and the likelihood of its re-occurrence.

Defendant argues that the trial court abused its discretion when it relied on unnamed “studies” about pedophiles which showed that it was difficult to rehabilitate them. (People v. Harris (1989), 187 Ill. App. 3d 832.) However, the trial court simply noted the unnamed “studies” in passing and then stated it did not know if defendant’s conduct would be the same. Therefore, we find no abuse of discretion.

Although defendant argues that the sentence is counterproductive to his rehabilitation, the difficult task of fashioning a sentence which strikes a balance between the protection of society and the rehabilitation of the offender is best left to the trial court. (People v. Burton (1984), 121 Ill. App. 3d 182.) After a careful review of the record, we cannot say the trial court abused its broad discretion in sentencing defendant.

The judgment of the trial court is affirmed.

Affirmed.

REINHARD, P.J., and BOWMAN, J., concur.


author: JUSTICE INGLIS

text:
    DENNIS BOWMAN, Plaintiff-Appellee, v. DIXON THEATRE RENOVATION, INC., Defendant-Appellant.
    Second District
    No. 2 — 91—0573
    Opinion filed October 30, 1991.

      Rolfe F. Ehrmann, of Ehrmann, Gehlbach & Beckman, of Dixon, for appellant.
    No brief filed for appellee.
   JUSTICE INGLIS

delivered the opinion of the court:

Pursuant to Supreme Court Rule 307(a)(1) (134 Ill. 2d R. 307(a)(1)), defendant, Dixon Theatre Renovation, Inc., appeals the order granting a preliminary injunction against it. Defendant claims the injunction was an improper “equitable attachment” and not authorized under article IV of the Code of Civil Procedure (Attachment Law) (Ill. Rev. Stat. 1989, ch. 110, par. 4 — 101 et seq.). Plaintiff has not filed an appellee's brief in this matter, and we address the issues pursuant to the standards set forth in First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 133. We affirm on the basis that the injunction was authorized under the recently enacted Uniform Fraudulent Transfer Act (Act) (Ill. Rev. Stat. 1989, ch. 59, par. 101 et seq.).

Plaintiff, Dennis O. Bowman, originally filed a complaint on March 28, 1991, in which he sought the specific performance of a real estate contract. On October 25, 1985, defendant executed a contract for the purchase of the Dixon Theatre building from plaintiff. The contract was modified twice, but defendant never tendered the purchase price. Defendant has been in possession of the building since 1985 and has produced performances for the public in it. On April 11, 1991, after obtaining service of process on the defendant corporation, plaintiff requested a temporary restraining order. Plaintiff alleged defendant had informed plaintiff that it would return its funds to the donors who pledged contributions and that tradesmen and plaintiff would not be paid. The trial court entered a temporary order restraining defendant from disposing of its assets for 10 days. Defendant moved to vacate the temporary restraining order, and plaintiff moved for the entry of a preliminary injunction to prohibit the disposal of assets pending the resolution of the underlying action.

During the hearing on these motions, plaintiff testified that he was the legal owner of the Dixon Theatre building and that he signed a contract to sell it to the defendant for $68,000. In September 1990, Linda Brantley, the current acting president of defendant, met with plaintiff and told him that defendant’s fund-raising campaign was falling short of its goal. Also, she said that if the State of Illinois did not provide a grant, plaintiff would not be paid, tradesmen would not be paid, and the funds would be returned to the donors. Plaintiff asked the court to prohibit defendant from returning the donations but not to prohibit the payment of ordinary expenses. Plaintiff admitted signing another extension of the real estate contract which he did not return to defendant when he heard that the State grant was not forthcoming. Plaintiff admitted that a sentence of the contract stated:

“Purchaser agrees that if it receives approval from the Department of Commerce and Community Affairs for the grant referred to above that the purchase price shall be completed on or about December 31, 1990.”

Kenneth W. McMunn, an employee of plaintiff, testified that Brantley told him that if the grant was not procured, defendant would return all the funds obtained through donations from individuals. Brantley said that defendant’s creditors and plaintiff would not be paid. These creditors could impose mechanics’ liens on the property. Another of defendant’s officers testified that defendant had over $90,000 in cash that could be disbursed for any reason, but that defendant was planning to return the money to the donors.

Plaintiff called Brantley to testify as an adverse witness. She told plaintiff that defendant would return the funds to the donors but had not done so yet. The funds to be returned were in the “contributions account,” which held between $80,000 and $100,000. Defendant maintained a separate operating fund, which currently held around $3,000. There were no other accounts or assets. Brantley did not consider the funds in the contribution account to be the property of defendant because there was a “stipulation” to the funds. However, the bank account did not indicate the stipulation. There was only one other creditor of defendant other than plaintiff, and that was the architect who was hired to plan the renovation; Brantley did not know the amount of his fee. The repairs to the building were fully paid from the operating funds, which were raised from conducting performances in the theatre. Defendant had advertised to solicit donations for the renovation. Brantley thought that at least some of the advertisements carried a notice that the donations would be returned if the State grant was not procured. The major advertisements stated that the donations would be returned if an insufficient amount was raised. Brantley was relatively certain some copies of such advertisements could be produced. Brantley thought that the theatre was being purchased on the condition that defendant procure the grant. A down payment had been paid to plaintiff.

When defendant called Brantley as its witness, she testified that defendant called a public meeting to explain its needs. At the meeting, a representative from defendant explained that without the grant defendant would be unable to complete the project. Defendant had applied for a grant of over $3 million. To qualify, defendant was required to raise $400,000 in matching funds and to own the building. Defendant introduced a pledge card, which Brantley testified was used to raise contributions. The example presented was a pledge of funds and was accompanied by a contribution. The donor wrote “Contingent upon receiving all the funds” on it. Other donors made statements of contingency as well, but Brantley had not searched the records completely to produce the number or total amount of such commitments. On cross-examination, Brantley admitted that not every contribution was accompanied by a pledge card.

The trial judge stated that, for the purposes of a preliminary injunction, it was inappropriate to determine whether all the funds were the contingent property of defendant. The court found that defendant had exercised complete dominion over the funds even if it had kept the funds segregated. The court held that it did not have to decide the character of each contribution at this stage of the litigation. The court determined that plaintiff showed a likelihood of prevailing on the merits of the underlying specific performance action. The court noted that specific performance was an equitable remedy and that this cause concerned real estate. The court found that plaintiff had established a clear right for which he needed protection. He would suffer irreparable harm, and there was no adequate remedy at law. If defendant returned the contributions, it would become insolvent. The return of the funds could constitute the preference of one creditor over another. In its written findings, the court found that the distribution of the contribution funds for no consideration could constitute a “fraudulent transfer.” The court ordered an injunction of the contribution funds to the amount of $80,000 until the underlying specific performance action was decided. It ordered that the funds be deposited in an interest-bearing account pending the resolution of the cause. The court further found that defendant would not be damaged by the injunction.

Defendant argues, as it did before the trial court, that the injunction comprised an equitable prejudgment attachment and was thus improper. On appeal from the grant of a preliminary injunction, an appellate court is to consider whether the circuit court abused its sound discretion in evaluating the relevant considerations and granting the preliminary injunction. Chicago Health Clubs, Inc. v. Picur (1988), 124 Ill. 2d 1, 7-8.

Attachment is a remedy by which a party’s property is secured and held to satisfy a debt that the other party hopes to prove. (Ill. Rev. Stat. 1989, ch. 110, par. 4 — 101; Carriage Way Apartments v. Pojman (1988), 172 Ill. App. 3d 827, 837.) Section 4 — 101 of the Attachment Law permits attachment only in nine specific circumstances. Defendant correctly notes that this court has recognized that there is no such process as equitable attachment in this State. (Pojman, 172 Ill. App. 3d at 838.) “ ‘[TJhe theory of taking away the control of a person’s property by means of an injunction for the purpose of anticipating a judgment which may or may not thereafter be obtained by a litigant is abhorrent to the principles of equitable jurisdiction.’ ” (Pojman, 172 Ill. App. 3d at 838, quoting Lewis v. West Side Trust & Savings Bank (1937), 288 Ill. App. 271, 278.) The court in Lewis stated:

“If the property of an honest, struggling debtor could be tied up by injunctions upon mere unadjusted legal demands, he would be constantly exposed to the greatest hardships and grossest frauds, for which the law would afford no adequate remedy *** [T]o prevent ruin to his business pending such litigation, he would be forced into unconscionable compromises involving losses he would be unable to bear.” (Lewis, 288 Ill. App. at 278.)

Thus, the law of this State has consistently forbade such injunctions. (See Exchange National Bank v. Harris (1984), 126 Ill. App. 3d 382, 386.) The only exception, when the claimant has an interest in specific funds held by the debtor (Kurti v. Silk Plants Etc. Franchise Systems, Inc. (1990), 200 Ill. App. 3d 605, 609-11), does not apply here.

Defendant argues that because the court’s order amounted to an equitable attachment, and none of the nine circumstances of section 4 — 101 were found by the court, the injunction must be vacated. However, the trial court did find that defendant was about to commit a “fraudulent transfer.” Section 4 — 101(8) of the Attachment Law provides that a creditor may obtain an attachment “[wjhere the debtor is about fraudulently to conceal, assign, or otherwise dispose of his or her property or effects, so as to hinder or delay his or her creditors.” Ill. Rev. Stat. 1989, ch. 110, par. 4 — 101(8).

Two types of fraudulent conveyances are recognized in Illinois. In fraud-in-fact cases, a creditor must show the debtor has a specific intent to hinder a creditor. (Cannon v. Whitman Corp. (1991), 212 Ill. App. 3d 79, 82.) In fraud-in-law cases, the law constructively infers fraud when the debtor conveys assets for inadequate consideration, rendering himself insolvent, during which he has existing or contemplated indebtedness. (Cannon, 212 Ill. App. 3d at 82.) Historically, however, a claim of constructive fraud has not been sufficient to justify the attachment of a purported debtor’s property. (Murry Nelson & Co. v. Leiter (1901), 190 Ill. 414, 417.) Because the trial court based its finding of an impending fraudulent transfer on what historically has been considered constructive fraud, the injunction cannot be based on the Attachment Law.

• 7, 8 However, Illinois has recently enacted the Uniform Fraudulent Transfer Act (Ill. Rev. Stat. 1989, ch. 59, par. 101 et seq. (Pub. Act 86 — 814, eff. Jan. 1, 1990)). Section 5(a)(2) of the Act defines a fraudulent transfer as one which the debtor makes without receiving a reasonably equivalent value and while the debtor was engaged in a transaction for which its remaining assets were unreasonably small. (Ill. Rev. Stat. 1989, ch. 59, par. 105(a)(2).) Section 6 of the Act provides an alternate definition for cases when the debtor does not receive a reasonably equivalent value for the transferred property and the debtor is insolvent or becomes insolvent as a result of the obligation. (Ill. Rev. Stat. 1989, ch. 59, par. 106.) Based on either of these definitions, we find no abuse of discretion in the trial court’s determination that the return of the contributions to the donors would be a fraudulent transfer.

Section 8(a)(2) of the Act permits the attachment of property, in accordance with the Attachment Law, when the creditor proves a fraudulent conveyance. (Ill. Rev. Stat. 1989, ch. 59, par. 108(a)(2).) Section 8 does not distinguish between fraudulent transfers proved under section 5(a)(1) (Ill. Rev. Stat. 1989, ch. 59, par. 105(a)(1)), which requires proof of actual intent, and sections 5(a)(2) and 6 (Ill. Rev. Stat. 1989, ch. 59, pars. 105(a)(2), 106), which require proof similar to that of constructive fraud. Section 8(a)(3)(A) alternately provides that, subject to the applicable principles of equity, the court may order an injunction against further disposition of property by the debtor. (Ill. Rev. Stat. 1989, ch. 59, par. 108(a)(3)(A).) Two courts have upheld injunctions entered pursuant to section 8(a)(3)(A) in cases where a prejudgment, purported debtor was about to convey assets. (Cannon, 212 Ill. App. 3d at 84; Farm Credit Bank v. Lynn (1990), 204 Ill. App. 3d 538, 540.) Neither case specified which category of fraudulent transfer was being enjoined.

We must next determine whether the granting of an injunction based on the constructive fraud provisions of section 5(a)(2) comports with general equitable principles, as required by section 8(a)(3). The nature of the injunction is similar to that of an equitable prejudgment attachment, which equity finds abhorrent, even when based on a constructive fraudulent transfer. Nonetheless, in those cases reversing de facto equitable attachment injunctions, the trial court failed to justify the injunction based on any ground specified by the Attachment Law, such as impending fraudulent transfers. (See Kurti, 200 Ill. App. 3d at 607; Pojman, 172 Ill. App. 3d at 839.) Here, the trial court made an explicit finding that defendant’s proposed action would constitute a fraudulent transfer.

We find that the other considerations concerning equitable relief are also met in the case at bar. Before a court may order a preliminary injunction, the plaintiff must establish that he possesses a clearly ascertainable right which needs protection; that he will suffer irreparable harm without the injunction; that there is no adequate remedy of law for his claim; and that he is likely to succeed on the merits of his action. (Buzz Barton & Associates, Inc. v. Giannone (1985), 108 Ill. 2d 373, 387.) The trial court must also consider the balance of the hardships imposed by the preliminary injunction (Buzz Barton, 108 Ill. 2d at 387) and tailor the injunction to preserve the status quo pending the outcome of the cause (Pojman, 172 Ill. App. 3d at 836-37).

Plaintiff established the threat of irreparable harm. Defendant’s contribution fund is the only fund available to pay the purchase price of the theatre. Once the contributions are returned to the donors, it is unlikely that the donors will give the money to defendant. Plaintiff has no adequate remedy at law. Because of the uniqueness of real estate, a vendor may seek specific performance of a contract even though he seeks only money. (Vincent v. Vits (1991), 208 Ill. App. 3d 1, 4.) We also note the threat of mechanics’ liens where a purchaser, such as defendant, has taken possession. The relief sought in the motion for the injunction was ancillary to plaintiff’s claim for specific performance. Moreover, there is some Illinois authority authorizing limited equitable relief based on an inadequate remedy at law when the judgment for money damages would be worthless due to the insolvency of the judgment debtor. See Southern Fire Brick & Clay Co. v. Garden City Sand Co. (1906), 223 Ill. 616, 628; Grower Service Corp. v. Brown (1990), 204 Ill. App. 3d 532, 536 (Barry, J., dissenting); Johnson v. North American Life & Casualty Co. (1968), 100 Ill. App. 2d 212, 218.

The court’s determination that plaintiff nearly proved its cause of action supports the requirement that the plaintiff show a likelihood of succeeding on the merits (see Buzz Barton, 108 Ill. 2d at 382). The trial court did not have to decide if plaintiff would prevail over defendant’s affirmative defenses that the contract contained a release and that defendant was not the true owner of the funds in the contributions account. We believe the trial court properly determined that defendant will suffer no harm to hold the funds in an interest-bearing account until the underlying dispute is resolved. Even if the owners of the funds were the donors, they will suffer no harm because they had no reasonable expectation of receiving the donations back if they represented true gifts. And the preliminary injunction against distribution of the funds was narrowly tailored to prevent an overly broad order. See Cannon, 212 Ill. App. 3d at 85; Grower, 204 Ill. App. 3d at 535.

Defendant is not a going concern which will be deprived of working capital. Thus, the inequities of equitable attachment do not apply to this defendant. Defendant expressed a desire to liquidate, and we are therefore not confronted with an honest but struggling debtor held hostage by a “ruthless creditor.” (See Harris, 126 Ill. App. 3d at 388.) Instead, we agree with the trial court’s finding of an impending preferential or fraudulent transfer. All the necessary elements for granting a preliminary injunction were present, and the evils of an equitable, prejudgment attachment were absent. There were no hardships upon defendant which would militate against granting the injunction so as to preserve the status quo. We hold that the trial court did not abuse its discretion by entering the preliminary injunction.

For the above reasons, the order of the circuit court of Lee County is affirmed.

Affirmed.

WOODWARD and McLAREN, JJ., concur.


text:
    ROBERT A. BROWN et al., Plaintiffs-Appellants, v. CHARLESTOWNE GROUP, LTD., d/b/a/ Ram Cabinets and Countertops, Inc., Defendant-Appellee.
    Second District
    No. 2 — 91—0204
    Opinion filed October 31, 1991.
    Bruce A. Brennan, of Kalinich, McCluskey, Sullivan & Boylan, P.C., of Glen Ellyn, for appellants.
    Wendell W. Clancy, of Clancy & Krippner, of St. Charles, and Richard R. Solomon, of Richard R. Solomon & Associates, of Aurora, for appellee.
   JUSTICE INGLIS

delivered the opinion of the court:

Plaintiffs, Robert A. Brown and Jane E. Brown, appeal from an order of the circuit court of Kane County dismissing count I of their complaint for breach of contract. The appeal is pursuant to Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)). On appeal, plaintiffs contend that the trial court erred in determining that their cause of action was barred by a prior judgment.

According to their complaint, plaintiffs owned a company that manufactured countertops. In September 1987, plaintiffs and defendant, Charlestowne Group, Ltd., entered into an agreement whereby Charlestowne would purchase the assets of plaintiffs’ company for the price of $140,000. The agreement provided that Charlestowne would pay $65,000 on January 2, 1988, and would pay $15,000 every January 2 thereafter until 1993. Charlestowne would also pay interest on the outstanding balance every April 1, July 1, October 1 and January 1, until the purchase price was paid in full. Charlestowne made the January 2, 1988, principal payment of $65,000 and the January, April, July and October 1988 interest payments. However, Charlestowne did not make the January 2, 1989, principal payment or the January 1 and April 1, 1989, interest payments.

On April 6, 1989, plaintiffs filed suit seeking the overdue amount and attorney fees and costs. On September 14, 1989, the trial court entered judgment in favor of plaintiffs in the amount of $20,125; the issue of attorney fees was reserved. On February 14, 1991, the trial court awarded plaintiffs $3,043.75 for attorney fees and $120.64 for costs.

Meanwhile, defendant did not make the January 1, 1990, principal payment or the interest payments for July and October 1989 and January and April 1990. On July 3, 1990, plaintiffs filed another lawsuit. In count I, plaintiffs sought the overdue payments as well as the remaining balance due under the contract. In count II, plaintiffs alleged that defendant had breached an agreement to provide insurance; plaintiffs sought the cost of continued coverage.

Defendant filed a motion to dismiss alleging, among other things, that there was another action pending between the same parties for the same cause and that the action was barred by a prior judgment. On January 15, 1991, the trial court dismissed count I with prejudice, finding that there “ha[d] been a judgment as to the subject matter of Count I.” The court also dismissed count II but gave plaintiff leave to amend that count. The court entered a finding, pursuant to Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)), that there was no just reason to delay enforcement or appeal of the order. Plaintiffs appeal from the dismissal of count I.

On appeal, plaintiffs contend that their second suit was not for the same cause as their first suit. Thus, their second suit was not barred by the judgment in the first suit. We agree.

Initially, we note that defendant has not filed a brief in this matter. We will review the merits of the appeal according to the standards set forth in First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 133.

Under the doctrine of res judicata, a final judgment entered by a court of competent jurisdiction bars any subsequent actions between the same parties on the same cause of action. (Simcox v. Simcox (1989), 131 Ill. 2d 491, 497.) Generally, however, where a money obligation is payable in installments, a separate cause of action arises on each installment. (Thread & Gage Co. v. Kucinski (1983), 116 Ill. App. 3d 178, 184, citing Light v. Light (1957), 12 Ill. 2d 502, 506.) The party entitled to payments may bring separate actions on each installment as it becomes due or wait until several installments are due and then sue for all such installments in one cause of action. (1 A. Corbin, Contracts §950, at 931 (1952).) An action for installments due on a contract will not bar a later action to collect installments which subsequently became due. Manhattan Co. v. Eversz (1913), 180 Ill. App. 470, 472, aff'd (1914), 262 Ill. 612; 1 A. Corbin, Contracts §948, at 930 (1952).

In their first suit, plaintiffs sought only the January 2, 1989, principal payment and the January and April 1989 interest payments, payments that were overdue when the action commenced. Judgment was entered on that basis. In the second suit, plaintiffs are seeking to recover the balance of the sale price, $60,000 ($140,000 less the $65,000 down payment and the $15,000 January 1989 principal payment previously awarded), and interest based on defendant’s continuing failure to make its payments. Although the complaint could have been more artfully drafted, it is clear enough that plaintiffs are not seeking to collect the same installments that they sought in their first action. In the second suit, they are seeking the amounts that came due after the first suit was filed as well as future payments. As the question is not before us, we express no opinion concerning whether, under the terms of the agreement, plaintiffs may recover installments not yet due and payable. In any event, the judgment in the first action did not bar plaintiffs’ subsequent action to recover later installments.

The judgment of the circuit court of Kane County is reversed, and the cause is remanded for further proceedings.

Reversed and remanded.

WOODWARD and McLAREN, JJ., concur.