author: JUSTICE STOUDER

text:
    AMALGAMATED TRANSIT UNION, Local No. 313, Plaintiff-Appellee, v. ROCK ISLAND COUNTY METROPOLITAN MASS TRANSIT DISTRICT, Defendant-Appellant.
    Third District
    No. 3—89—0048
    Opinion filed January 18, 1990.
    Rehearing denied March 27, 1990.

      Douglas G. Olson and Jerry J. Pepping, both of McGehee, Boling, Whit-mire & Olson, Ltd., of Silvis, for appellant.
    Stephen P. Wing, of Dwyer & Wing, P.C., and Patricia Zamora, both of Davenport, Iowa, for appellee.
   JUSTICE STOUDER

delivered the opinion of the court:

The appellant, Rock Island County Metropolitan Mass Transit District (Transit District), appeals from the granting of a motion to compel arbitration brought by the appellee, Local No. 313 of the Amalgamated Transit Union (Union). The Union cross-appeals from the circuit court’s order entered on the Transit District’s motion to reconsider.

The Transit District provides bus service in Rock Island County. The Union is the duly authorized representative and bargaining agent for the union employees of the Transit District. The Union and the Transit District entered into a collective bargaining agreement effective July 1, 1984. The agreement provided for the establishment of a small bus division composed of buses which contain 25 seats or less and are 30 feet or less in length. The small buses were to be used on the Transit District’s regular routes and for other specialized transportation services. Under the agreement, small bus operators are paid at a rate equal to 60% of the top rate paid to large bus operators. The agreement also provided for the selection of operator routes under a bidding process based on seniority.

In addition, the record shows that in 1975 the Transit District and the Union entered into an agreement entitled “Supplemental Agreement Pursuant to Section 13(c) of the Urban Mass Transportation Act of 1964, As Amended” (the section 13(c) agreement). The section 13(c) agreement provided that in the event the Transit District received a Federal capital grant to assist in the purchase of seven new buses and other transit equipment (the Project), it was agreed, among other things, employees covered by the agreement would not be “placed in a worse position with respect to compensation, hours, working conditions *** as a result of the Project.” The record indicates that in 1984 the original section 13(c) agreement was incorporated by reference into agreements made at the time the Transit District applied for Federal grants to assist in the purchase of the small buses and other equipment. We note that the record does not contain a copy of these incorporating agreements and that in admissions filed by the Union, the Union denied the execution of such agreements. However, in its brief to this court, the Union states that a section 13(c) agreement was negotiated in 1984, along with the collective bargaining agreement.

On January 6, 1987, a grievance was filed by Carolyn Thoensen, an employee of the Transit District. Thoensen alleged that her work assignment was changed from full time in the large bus division to full time in the small bus division. As a result her wage rate was reduced by 40%. She claimed it was not her choice to be placed in the small bus division. As a result of management’s decision to reduce the number of available full-time, large bus positions, she was forced to work either in the small bus division or part time in the large bus division with no benefits. Thoensen alleged that her condition of employment was worsened due to the federally funded grant used for the acquisition of the small buses. On March 13, 1987, the Union notified the Transit District that Pennie Mosley, Sam Brown and other employees wished to be included in the Thoensen grievance.

The record shows that prior to the Thoensen grievance, Mosley and Brown had filed a grievance alleging a violation of the collective bargaining agreement. In their grievance, they claimed that under the agreement only 13 employees of the Transit District could be transferred to the small bus division. They claimed that as a result of decisions made by management, they were forced out of positions as full-time, large bus operators and into the small bus division. The grievants concluded that the actions taken by the company had adversely affected the terms and conditions of their employment in contravention of the spirit and intent of the collective bargaining agreement.

The Mosley-Brown grievance was submitted to arbitration on April 2, 1986. The arbitrator found that there was no merit to the contention that the Transit District was required to maintain a certain number of full-time, large bus positions. He also found that the griev-ants voluntarily transferred to the small bus division. The arbitrator stated: “In the instant case the District neither assigned, transferred or [sic] forced the grievants to accept any particular position. The position obtained was by reason of a bidding process and the exercise of seniority.” The Union did not seek review of the arbitrator’s decision.

In the instant case, the Union made repeated demands to the Transit District requesting that the Thoensen grievance be submitted to arbitration. The Transit District refused to arbitrate. On May 28, 1987, the Union filed in the circuit court of Rock Island County a motion to compel arbitration. It subsequently filed a second amended complaint to compel arbitration. On April 4, 1988, the Transit District filed a motion for permanent stay of arbitration pursuant to section 2 of the Uniform Arbitration Act (Ill. Rev. Stat. 1987, ch. 10, par. 102), contending that the Union’s claim was barred under the principles of res judicata and collateral estoppel.

A hearing was held on April 8, 1988, and at the conclusion of that hearing, the court requested that the parties submit briefs on the issues raised accompanied by proposed written orders. On July 19, 1988, the court entered an order granting the Union’s “motion” to compel arbitration. The court found, inter alia, that in the instant case the application of the principles of res judicata and collateral estoppel was precluded by the lack of any language in the section 13(c) agreement intended to “bar or extinguish any future grievance.” The court held that the Mosley-Brown grievance concerned the issue of voluntary versus involuntary transfer under section 41 of the collective bargaining agreement. On the other hand, the issue in the Thoensen grievance was the worsening of wages or conditions of employment as the direct or indirect result of a federally funded project. Noting the fact that Brown and Mosley joined in the Thoensen grievance, the court held that the parties in the Mosley-Brown grievance were not the same as the parties in the Thoensen grievance.

On the Transit District’s subsequent motion to reconsider, the court held that its July 19, 1988, order should not be interpreted to preclude the Transit District from raising any defense before the arbitrator. It also vacated that portion of the order which held that the parties to the two grievances were not the same. The court held that under the collective bargaining agreement a grievance is defined as any controversy between the Transit District and the Union. The court affirmed as modified its order of July 19, 1988. The Transit District appealed from the circuit court’s modified order, and the Union cross-appealed the issue of identity of party.

Initially, we address the Union’s cross-appeal. On appeal, the Union contends that the circuit court erred in reversing its original finding that the parties to the two grievance procedures were not the same for purposes of res judicata and collateral estoppel. It argues that this action is brought pursuant to the section 13(c) agreement and that the agreement is ambiguous in regards to whether individual employees can bring actions for violation of the agreement. However, in its brief to this court, the Union concedes that for purposes of arbitration the parties to the dispute are the Union and the Transit District.

The 1975 section 13(c) agreement provides that when an adversely affected employee brings a claim, the Transit District must either honor the claim or notify the Union of its reasons for rejecting the claim. In the event the Transit District rejects the claim, the Union may invoke specific procedures for the investigation of the claim. The parties then meet and attempt to “agree upon the proper disposition of the claim.” Paragraph 9 of the 1975 section 13(c) agreement states in pertinent part: “In the event of any labor dispute involving the Public Body and the employees covered by this agreement which cannot be settled within thirty (30) days after such dispute first arises, such dispute may be submitted at the request of either the Union or the Public Body to a board of arbitration selected in accordance with the existing collective bargaining agreement ***.”

The collective bargaining agreement describes a grievance as any controversy between the Union and the employer involving interpretation of the agreement. The parties to both agreements are the Union and the Transit District. The agreements denominate the parties as the Union and the Transit District. Under both agreements it is the Union which requests arbitration of disputes, not the individual union members. The Union brought the Mosley-Brown dispute to arbitration. In the instant case, both the motion to compel and the complaint were brought by the Union. The parties to both actions were the Union and the Transit District. Therefore the circuit court correctly held that the parties in both actions were the same.

The remaining issue is whether the current action is barred by the doctrines of res judicata or collateral estoppel. The trial court found and the Union argues on appeal that because the section 13(c) agreement lacks provision for barring and extinguishing “any future grievance,” the doctrines of res judicata and collateral estoppel do not apply to this action. In other words, in order for the doctrines of res judicata and collateral estoppel to apply, the parties must provide for their application within the text of the agreement. The Union cites Monmouth Public Schools v. Pullen (1985), 141 Ill. App. 3d 60, 489 N.E.2d 1100, as support for its rather novel argument.

The issue in Monmouth concerned the scope of a court’s authority when a motion to stay arbitration is brought under section 2 of the Uniform Arbitration Act (Ill. Rev. Stat. 1987, ch. 10, par. 102). It was argued in Monmouth that, under the statute, the court was limited to determining whether an agreement to arbitrate existed. The court held that in such proceedings it also had the authority to decide the res judicata and collateral estoppel effect to be given a prior arbitration award. The case does not stand for the proposition that these doctrines can be altered by agreement of the parties. Res judicata and collateral estoppel are judicially created doctrines designed to protect litigants from the burden of retrying an identical cause of action or issue with the same party or privy, and to enhance judicial economy by prohibiting repetitive litigation. (Spiller v. Continental Tube Co. (1983), 95 Ill. 2d 423, 447 N.E.2d 834.) Parties do not have the power to alter the applicability of these judicially created doctrines of law. These doctrines are not rendered inapplicable by the parties’ failure to provide for them in their contract.

On review of the record we find the Union’s claim to be barred by res judicata. Under the doctrine of res judicata, a final judgment on the merits is conclusive as to the rights of the parties and their privies, and, as to them, constitutes an absolute bar to a subsequent action involving the same claim, demand or cause of action. (Reynolds Metals Co. v. V.J. Mattson Co. (1984), 125 Ill. App. 3d 554, 466 N.E.2d 357.) Res judicata is conclusive not only as to every matter which was offered to sustain or defeat the claim or demand, but as to any other matter which might have been offered for that purpose. (Housing Authority v. YMCA (1984), 101 Ill. 2d 246, 461 N.E.2d 959.) The test is whether the causes of action are based upon a common core of operative facts or whether the evidence necessary to sustain the second verdict would have sustained the first. (Redfern v. Sullivan (1982), 111 Ill. App. 3d 372, 444 N.E.2d 205.) A cause of action consists of a right belonging to the plaintiff which the defendant violates by some wrongful act or omission. Edwards v. City of Quincy (1984), 124 Ill. App. 3d 1004, 464 N.E.2d 1125.

Arbitration is in the nature of a judicial inquiry with its object to achieve a final and binding disposition of differences between parties, both present and prospective, with the force of an adjudication precluding the parties from relitigating the same subject. (Kemling v. Country Mutual Insurance Co. (1982), 107 Ill. App. 3d 516, 437 N.E.2d 1253.) If the arbitration award is binding on the parties, any inquiry into the matters originally controverted is forever closed. Monmouth Public Schools v. Pullen (1985), 141 Ill. App. 3d 60, 489 N.E.2d 1100.

A review of the record shows that the cause of action in both grievances involved the same core of operative facts. Thoensen alleged that by reason of a management decision to reduce the number of large bus positions she was forced into the small bus division. This resulted in a reduction in her wage rate. Mosley and Brown claimed in their grievance that as the result of a decision by management, they were forced into the small bus division. They claimed that the actions of the Transit District adversely affected the terms and conditions of their employment and that they were entitled to be paid at the large bus rate. The arbitrator in the Mosley-Brown grievance found that the Transit District did not force the grievants into the small bus division, but rather they obtained the positions by reason of the bidding process and the exercise of seniority as provided in the collective bargaining agreement. Under the agreement, the Transit District was not required to maintain a minimum number of large bus positions. The Union did not seek review of the arbitrator’s decision and concedes that it is bound by that decision. In support of its claim in the Mosley-Brown action, the Union could have alleged its theory of a section 13(c) violation. In failing to do so, the Union is barred from attempting to relitigate this dispute on a theory it could have raised in the earlier proceeding. The arbitrator determined that the change in the employees’ positions was not the result of a violation of any agreement, but was the result of the terms of the collective bargaining agreement which the union membership approved. The instant cause of action is barred by the doctrine of res judicata.

Therefore, the judgment of the circuit court of Rock Island County as it relates to the finding of identity of party is affirmed; the remaining judgment is reversed and the cause remanded with directions to grant the Transit District’s motion for a permanent stay of arbitration.

Affirmed in part; reversed in part and remanded with directions.

SCOTT and WOMBACHER, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE MURRAY

license: Public Domain

text:
      In re MARRIAGE OF WAYNE B. KORAL, Petitioner-Appellee, and CHRISTINE H. KORAL, Respondent-Appellant.
    First District (5th Division)
    No. 1—88—3037
    Opinion filed September 22, 1989.
    Rehearing denied March 30, 1990.

      Christine H. Koral, of Chicago, appellant pro se.

    Jeffrey, Stewart, Shapiro, Ashman & Associates, of Chicago, for appel-lee.
   PRESIDING JUSTICE MURRAY

delivered the opinion of the court:

Respondent-appellant Christine H. Koral, appeals from a judgment entered by the circuit court of Cook County on July 25, 1988, dissolving the marriage between herself and petitioner-appellee Wayne B. Koral. Christine appears pro se in this court charging numerous errors requiring reversal of the judgment and remandment of the cause. Wayne has filed a motion to set a bond until certain real estate owned by the parties is sold, and the motion has been taken with the case. For the reasons set forth below, we affirm the trial court.

The record discloses that Christine and Wayne were married on November 9, 1968; two children were born to the parties, namely, Aaron (December 12, 1969) and Scott (June 27, 1971); Wayne was employed by the Chicago police department and the Chicago Public Library; and Christine was employed at Cook County Hospital and has a nursing degree from Northwestern University and a master’s degree from Case Western Reserve.

On May 15, 1984, Wayne filed a petition for dissolution of marriage, alleging as grounds therefor mental cruelty. The pertinent proceedings occurring after the filing of Wayne’s petition are as follows:

1984
May 15 — Emergency petition filed by Wayne for a temporary restraining order (TRO) to enjoin Christine from expending, dissipating, removing, selling, transferring or otherwise disposing of $100,000 in marital assets. Granted.
May 24 — Motion for a temporary injunction filed by Wayne seeking the same relief granted by the TRO. Continued.
June 4 — Injunction entered against both Wayne and Christine prohibiting them from harassing or threatening each other and from taking any action relative to the $100,000 in marital property as previously set forth in the May 15 TRO.
June 20 — Appearance by Goldstein, Simon, Briskman & Briskman filed on behalf of Christine.
August 22 — Various interrogatories and discovery requests filed by the parties.
1985
February 15 — Motion filed by Goldstein, Simon, Briskman & Briskman to withdraw as Christine’s attorneys, stating that on numerous occasions they were unable to reach her by telephone or correspondence. Granted.
July 17 — Appearance filed by Solomon Gutstein on behalf of Christine.
1986
February 4 — Petition for temporary child support, custody and attorney fees filed by Wayne.
February 19 — After contested hearing, Wayne awarded sole temporary custody of minor children of the parties, Christine ordered to pay child support in the amount of 25% of her net income or $500 per month, and question of attorney fees continued generally.
February 20 — Motion filed by Solomon Gutstein for attorney fees and to withdraw as Christine’s attorney based on Christine’s “inability to communicate productively.” Motion to withdraw granted. Question of fees continued (and motion later withdrawn on June 12).
April 28 — Petition filed by Wayne for rule to show cause as to why Christine should not be held in contempt of court for failure to pay temporary child support pursuant to February 19 order and petition seeking contribution from Christine for attorney fees.
April 29 — Christine represented by Ross Shugan, court finds Christine in contempt of court for failure to pay temporary child support and court orders her to pay same and keep current, and question of attorney fees continued to May 13.
May 6 — Supplemental petition for attorney fees filed by Wayne.
May 13 — Order entered giving Christine 28 days to obtain another attorney and setting Wayne’s petition for attorney fees for hearing on June 10 “without further notice” and notwithstanding whether Christine has retained counsel by that date.
June 10 and 17, and July 3 — Wayne’s petition for attorney fees continued at the request of Christine.
July 17 — Contested hearing held on Wayne’s petition for attorney fees and Christine ordered to pay his attorneys $2,000.
September 19 — Second petition for rule to show cause filed by Wayne, alleging Christine had paid $500 to purge earlier contempt citation but had paid only $150 in child support since May 1986.
October 7 — Court finds Christine $3,300 in child support arrears, withholding order is filed, and a rule to show cause is entered as to why Christine should not be held in contempt of court.
December 3 — Request by Christine for time within which to obtain another attorney granted.
1987
January 9 — Appearance of Elsie G. Holzwarth filed on behalf of Christine.
January 15 — Case set for pretrial conference on March 16, and trial on March 17 “if said conference does not result in a resolution of contested issues.”
May 11 — Motion by Elsie G. Holzwarth to withdraw as attorney for Christine, stating lack of cooperation by Christine and fears that Christine’s actions might be taken “merely for the purpose of harassment,” which might result in her being charged with “violations of a disciplinary rule, particularly under Canon 7.” Order granting motion to withdraw as counsel granted and Christine allowed 21 days to obtain another attorney.
July 15 — Third petition for rule to show cause filed by Wayne, alleging that Christine, even after having been found in contempt of court, is $6,000 in arrears in child support.
July 22 — Third petition for rule to show cause continued to August 26 for hearing “without further notice” and whether or not Christine has retained another attorney.
August 26 — Rule to show cause issued against Christine and question of attorney fees continued to October 7.
October 7 — Court rules all matters relative to Wayne’s third petition for rule to show cause to be heard at trial. 1988
April 12 — Trial commences. Christine, who is not represented by counsel, requests a continuance. Request denied and Christine proceeds pro se.
April 13 — Parties enter into an agreement to settle all issues. Christine accepts terms of settlement. Hearing set for April 28 to discuss the settlement reached.
April 28 — Christine changes her mind, based on the subsequent advice of “others” and objects to the presentation of the judgment for dissolution. Court reads into the record an ex parte communication received by it from Christine in which she states her objection to various provisions of the proposed settlement. Wayne objects to any modification in the agreement, stating that all issues had been resolved. Case continued to May 13 and parties advised by the court that “[e]ither we will continue the trial or you people will have worked out an agreement or the court will enter an order based upon the agreement.”
May 13 — Parties unable to reach an agreement, and trial resumed. A determination of all issues set for hearing on June 13.
June 13 — Court makes specific findings of fact and orders a certified report of proceedings by the court reporter and attorney and that a judgment of dissolution of marriage be prepared and presented within 28 days.
July 22 — Judgment for dissolution presented to the court for decision and matter continued to July 25.
July 25 — Court enters judgment for dissolution of the parties’ marriage.

The judgment for dissolution of the parties’ marriage finds that Wayne earned $2,200 per month in wages and Christine $2,755 per month. Wayne’s pension plan had a balance of between $40,000 and $43,000. Christine’s pension plan balance was approximately $44,228. The parties accumulated three parcels of real estate; a residence and apartment building in Chicago and a time-sharing vacation condominium in Cancún, Mexico. Christine also had a savings account in the amount of $7,000.

After finding that Wayne had sufficiently presented competent material and relevant evidence upon which to base the judgment for dissolution of the parties' marriage, the court ordered as follows: that the parties were forever barred from asserting claims of maintenance against each other; that custody of the parties’ children be awarded to Wayne with reasonable visitation rights to Christine; that Christine pay Wayne child support for their two children the greater of 25% of her net earings from all sources or $500 per month for the period of June 10, 1988, and before, and the greater of 20% of her net earnings from all sources or $500 per month for one child for the period after June 10, 1988; that Christine pay child support arrearages out of her share of proceeds from the sale of certain real estate owned by the parties; that each of the parties assume responsibility for any taxes owed by them individually and jointly; that the parties each assume all outstanding debts individually incurred during their marriage or during the period of their separation; that the parties maintain existing insurance policies on behalf of their children until the happening of certain events; that the parties retain all personal property presently in their individual possession, as well as checking, savings accounts, and certificates of deposit; that each party have full and absolute title to any pension, profit sharing or retirement plan titled in their individual names; that all real estate owned by the parties be sold and the proceeds distributed equally between them, except that a loan owed to Wayne’s father in the amount of $8,623 plus interest be deducted first from the proceeds of the sale of the parties’ apartment building and that child support arrearages in the amount of $9,769 and attorney fees payable to Wayne in the amount of $9,000 be deducted from Christine’s share of the proceeds from the sale of the other two parcels of real estate owned by the parties; and that the parties contribute to the college education of their children in proportion to their respective incomes.

On appeal Christine first argues that she was denied a right to counsel in the dissolution proceedings in violation of Rule 651(c) of the Supreme Court Rules (107 Ill. 2d R. 651(c)). We find this argument is without merit for three reasons. First, Rule 651(c) involves appeals from post-conviction proceedings, not marriage dissolution proceedings. (107 Ill. 2d R. 651(c).) Secondly, no cases or statutory provisions have been cited by Christine disclosing any right to counsel in a marriage dissolution proceeding and we have been unable to find any. Finally, if there was such a statutory or constitutional requirement, it was not violated in this case. Christine had five different attorneys throughout the proceedings prior to trial. Moreover, as the trial court noted, on April 12, 1988, when Christine attempted to obtain a continuance because she did not have an attorney, she had had one year in which to obtain an attorney and the case had been set for trial 13 months earlier. (See Lipke v. Celotex Corp. (1987), 153 Ill. App. 3d 498 (party moving for a continuance must show the exercise of due diligence).) Accordingly, we cannot disagree with the trial court’s denial of a further continuance especially in light of the fact that the case had been pending for four years.

We also briefly note that Christine was not in fact denied an attorney by the trial judge; she was denied a continuance for the purpose of obtaining another attorney on the morning of trial. The granting or denial of a continuance is in most cases a discretionary matter (see Lipke v. Celotex Corp. (1987), 153 Ill. App. 3d 498) and, in light of the stated facts of this case, we cannot hold that the trial court abused its discretion in denying Christine yet another continuance.

In her second argument, Christine contends that the judgment of dissolution is in conflict with the manifest weight of the evidence. Christine first argues that the grounds for dissolution of the parties’ marriage were not proved, the record only showing the court’s “assertion” that evidence had been presented to support the grounds of mental cruelty and irreconcilable differences.

It is impossible for this court on the record to review the evidence presented on Christine’s “grounds” issue because she has failed to provide this court with a complete record, i.e., the transcript of the afternoon proceedings on April 12, 1988, which Wayne asserts contained the presentation of evidence supporting the grounds for dissolution of the parties’ marriage. An appellant has the burden of providing a complete report of proceedings which includes all evidence pertinent to the issues raised on appeal (107 Ill. 2d R. 323) and, in the absence of an adequate record, as here, we must presume that the trial court's resolution of this issue conforms to the law and rests on a sufficient factual basis (see In re Marriage of Hildebrand (1988), 166 Ill. App. 3d 795). Moreover, under the circumstances, Christine in fact admitted that the grounds were proved as indicated by the following colloquy in the transcript of proceedings held on May 13, 1988:

“THE COURT: Is that it, Mrs. Koral, for this witness [Wayne Koral]?
MS. KORAL: Well, I don’t know that I can ask other than what I have asked before except we never did get to grounds, which I was told I didn’t have any evidence for that, your Honor.
THE COURT: I think the grounds were covered much earlier. What was the date the grounds were covered?
MR. ASHMAN [Plaintiff’s counsel]: Either on 4-12 — .
MS. KORAL: For his side.
THE COURT: Madam, the court hears evidence.
MR. ASHMAN: For the record, ample evidence was given for mental cruelty.
THE COURT: Just tell me when.
MR. ASHMAN: It was either April 12th or April 13th.
THE COURT: Frankly, I believe it was both.
MR. ASHMAN: We started April 12th and we finished April 13th. The grounds are mental cruelty, and they were thoroughly discussed, your Honor, and also the irreconcilable differences.
MS. KORAL: Oh, yeah, it was the 13th.
THE COURT: The lStiti
MS. KORAL: Yes.
THE COURT: Gone [sic] through the 12th at this moment—
MR. ASHMAN: I believe it was both days.
MS. KORAL: Judge, right after Mr. Ashman—
THE COURT: I have it. Wayne Koral was testifying on April 12th. He testified as to residence. You had testimony as to the marriage and the number of children. He testified to irreconcilable differences, date of separation. Grounds were established.” (Emphasis added.)

Although Christine believed the date of presentation of evidence relevant to the grounds for dissolution of the parties’ marriage was April 13, rather than April 12 as Wayne asserts, she does admit that such evidence was 'presented and, according to the foregoing, the trial court determined that the evidence was presented on April 12 from the record before him. Christine’s argument on this issue is therefore without merit.

We also reject Christine’s asserted errors, numbers 3 to 12, which pertain to almost every one of the trial court’s findings relative to the earnings and property of the parties, the sharing of debts and income taxes, payment of child support and arrearages, payment of attorney fees to Wayne’s counsel as a sanction against Christine’s failure to pay child support, maintenance of insurance policies on behalf of the parties’ children, and provision for the college education of the parties’ children.

The record reveals that on April 13, 1988, after hearing the testimony of an appraiser of real estate, a witness from the Cook County Hospital, and Christine, the trial court discussed settlement of the matter item by item. After what appears to be a settlement of the parties’ rights, the matter was continued to April 28, 1988. On that date the trial judge read into the record a letter he received from Christine indicating her dissatisfaction with the settlement and advising the court she would not be prepared to discuss the proposed agreement. A discussion was again had on settlement and the cause was continued to May 13, 1988. On May 13, 1988, Christine again appeared pro se, indicated she disagreed with the proposed settlement and trial resumed. Also on May 13, June 13, and July 25, the same issues referred to in the proposed agreement were considered anew. On July 25, the court entered judgment based on the evidence adduced at all the proceedings.

We find, based on the record, that a more than fair, conscientious attempt was made by the trial court to resolve the problems posed by a petition for the dissolution of marriage between a husband who desired that the marriage be dissolved and a wife who was represented at times by a number of attorneys and finally represented herself. The court gave Christine every opportunity to present evidence rebutting the evidence presented by Wayne and the conclusions reached by itself. Our review of the record discloses that Christine simply did not present evidence to support her contentions, and her arguments before this court appear to be an attempt to relitigate this matter based merely on her dissatisfaction with the court’s judgment.

For example, the finding that Wayne, a Chicago police officer and part-time security guard earned a net income of only $2,200 per month may seem astonishing when compared to Christine’s found salary of $2,755 per month as a county employee. The record on appeal discloses that the finding as to Christine’s net income was based on documentary evidence not included in the record on appeal. With respect to Wayne’s income, the record is not clear as to on what evidence the trial court based its finding of Wayne’s net income. In answers to interrogatories contained in the appellate record, Wayne attested to a gross income of about $38,00 in 1985. At the April 1988 hearing, the following colloquy between the court, Wayne and Christine appears:

“THE COURT: *** Now generally speaking you [Christine] are earning $35,000.00 per year and he [Wayne] is earning about what?
MS. KORAL [CHRISTINE]: He said with the Library 41.
THE COURT: And 41 and 35 is 76.
MR. KORAL [WAYNE]: Your honor, that $41,000 is gross income.
THE COURT: Sir, I understand that. I have covered that.”

What facts made the trial court find Wayne’s net income to be only $26,000 per year or a monthly income of $2,200 when his admitted yearly income was $41,000 is not revealed in the record. Nevertheless, we must affirm the trial judge’s finding as to Wayne’s and Christine’s net income for the following reasons. The record filed by Christine in this court does not contain exhibits or all that occurred in the trial court. The record reflects an agreement between the parties as to the findings and then a disagreement by Christine. The record does disclose a notice of Wayne’s deposition by Christine’s prior attorney and a discovery request of all his financial records by Christine’s prior attorney. Finally and most important, a trial court’s determination of the valuation of the assets of a party in a marriage dissolution proceeding is a question of fact and the trial court’s finding thereon will not be disturbed on review unless contrary to the manifest weight of the evidence. (In re Marriage of Wilder (1983), 122 Ill. App. 3d 338.) Based on the foregoing, on this record we cannot conclude that the trial court’s findings as to the net earnings of the parties is contrary to the manifest weight of the evidence.

We also especially note that with respect to the property division of the parties, the provisions of the Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1987, ch. 40, par. 503(d)) provide for a division of marital property in just proportions. A mere reading of the judgment for dissolution here indicates no inequity where the assets of the parties are almost equally divided. Moreover, the proper division of marital property rests within the sound discretion of the trial court (In re Marriage of Rapacz (1985), 135 Ill. App. 3d 1045), not this court, and this court cannot reverse a trial court’s division of property absent an abuse of discretion (In re Marriage of Ackerman (1988), 168 Ill. App. 3d 438). Christine points to no evidence showing an abuse of discretion that could be corrected by this court.

We also summarily reject Christine’s argument that she is entitled to maintenance. Pursuant to the Marriage and Dissolution of Marriage Act, maintenance may be granted to either spouse only if the court finds that the spouse seeking it:

“(1) lacks sufficient property, including marital property apportioned to him, to provide for his reasonable needs, and
(2) is unable to support himself through appropriate employment or is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home, or
(3) is otherwise without sufficient income.” (III. Rev. Stat. 1987, ch. 40, par. 504(a).)

Christine simply does not fall into any of the above categories.

Based on the foregoing, we conclude that the trial court did not abuse its discretion in any of the findings contained in the judgment appealed from.

In Christine’s last argument, she charges that Wayne’s trial counsel violated ethical standards by whispering answers and using gestures to convey answers to a witness. We have read the pages of the transcript in which Christine contends counsel’s actions occurred and find no support for this charge.

Finally, Wayne suggests in his appellate brief that we impose sanctions against Christine for acts of bad faith and harassing conduct. While some of Christine’s conduct and statements appear out of order, we do not find that they were made in bad faith or intended to harass; Christine’s obvious and understandably emotional state throughout the proceedings and her conduct necessarily resulting from her choice to represent herself cannot be characterized as either.

For the above reasons, the judgment of the circuit court of Cook County is affirmed. Wayne’s motion for a bond is denied based on our determination that, under the circumstances, none is required.

Affirmed.

LORENZ and COCCIA, JJ., concur.

      We have corrected the caption of this opinion to correspond properly with the parties’ status in the trial court.

      The transcript of proceedings on June 13, in which the trial court made its findings of fact, is not in the record, and, therefore, we must presume that the court’s findings conform to the law and rest on a sufficient factual basis. See In re Marriage of Hildebrand (1988), 166 Ill. App. 3d 795.


author: JUSTICE LINN

text:
    THOMAS R. WALSH et al., Plaintiffs-Appellees, v. RAMADA INNS, INC., et al., Defendants-Appellants.
    First District (4th Division)
    No. 1—88—2586
    Opinion filed December 21, 1989.
    Rehearing denied March 30, 1990.
    Pretzel & Stouffer, Chartered, of Chicago (Frederic X. Shadley, Mark P. Standa, and Robert Marc Chemers, of counsel), for appellants.
    No brief filed for appellees.
   JUSTICE LINN

delivered the opinion of the court:

We allowed the petition of certain defendants (Ramada Inns, Inc., John A. Cassens and John E.H. Cassens) for leave to appeal from the denial of their intrastate forum non conveniens motion. (107 Ill. 2d R. 306(a)(1)(h).) On appeal, defendants contend that the trial court abused its discretion in refusing to transfer this cause to Whiteside County, Illinois.

Plaintiffs Thomas and Eleanor Walsh are residents of Spring Valley in Bureau County, Illinois. In 1985, Thomas Walsh (hereinafter Walsh) was employed as a construction worker by Richard J. Prescott Construction Company of Sterling in Whiteside County, Illinois.

On December 13, 1985, Walsh was helping to construct an addition to a Ramada Inn located in Rock Falls, Illinois, which also is in Whiteside County, when he fell off of a structural support that had suddenly tipped.

On July 10, 1987, Walsh and his wife filed the instant personal injury action in the circuit court of Cook County. In the action, plaintiffs seek $3 million for alleged negligence, loss of consortium and violation of the Illinois Structural Work Act (Ill. Rev. Stat. 1987, ch. 48, par. 60 et seq.).

Several weeks prior to filing the complaint, Walsh obtained medical care and treatment in Cook County, Illinois. The record discloses that he earlier had obtained medical care and treatment for his injuries in Whiteside, Winnebago, La Salle, Putnam, and Lake Counties in Illinois.

The record discloses further that the potential occurrence and post-occurrence witnesses are located in several Illinois counties: Rita Peppers and Don Boehme are located in Rock Falls in White-side County; John Caudillo (also spelled “Cardillo” in the record), Keith Diehl and Jack Butler are located in Sterling in Whiteside County; Craig Kraft is located in Freeport in Stephenson County; and John Houck is located in Dixon in Lee County.

Defendants subsequently moved to transfer the cause to the circuit court of Whiteside County pursuant to the doctrine of intrastate forum non conveniens and Illinois Supreme Court Rule 187 (107 Ill. 2d R. 187). In support of their motions, defendants contended that Whiteside County was a more convenient forum than Cook County because the accident occurred in Whiteside County, five of the seven potential occurrence and post-occurrence witnesses live in Whiteside County, the remaining two potential occurrence and post-occurrence witnesses live in Stephenson and Lee Counties, which are nearer to Whiteside than to Cook County, and defendants John A. Cassens and John E.H. Cassens live in Whiteside County. Defendants contended further that public interest factors favored Whiteside County because the Whiteside County court docket is less congested than the Cook County court docket, the citizens of Cook County should not be burdened with jury duty in a matter that has no relation to their community, and the citizens of Whiteside County have an interest in the litigation because it implicates the safety of construction equipment used in their community.

In response, plaintiffs contended that Cook County was a convenient forum because Walsh received some of his medical care and treatment in Cook County. Plaintiffs contended further that Cook County was convenient because Ramada Hotel Operating Company and Ramada, Inc. (which are not parties defendant in this case), have a corporate presence in Cook County consisting of a registered agent, a corporate office, and a worldwide sales office.

Relying upon Meyers v. Bridgeport Machines Division of Textron, Inc. (1986), 113 Ill. 2d 112, 497 N.E.2d 745, the trial court denied defendants’ motions to transfer and observed that there was no predominance of connections between the instant case and any particular county. The trial court believed instead that there was “a substantial distribution of contacts in a number of counties.” On appeal, the issue is whether the trial court’s decision denying defendants’ motions to transfer the cause to Whiteside County was an abuse of discretion.

Forum non conveniens is an equitable doctrine which presupposes the existence of more than one forum with personal and subject-matter jurisdiction. (Bland v. Norfolk & Western Ry. Co. (1987), 116 Ill. 2d 217, 223, 506 N.E.2d 1291; Continental Casualty Co. v. Michigan Mutual Insurance Co. (1989), 183 Ill. App. 3d 778, 781, 539 N.E.2d 431.) Under the doctrine oí forum non conveniens, a court may decline to exercise jurisdiction whenever it appears that there is another available forum which is more convenient and which can better serve the ends of justice. (See Bland, 116 Ill. 2d 217, 506 N.E.2d 1291; Continental Casualty Co., 183 Ill. App. 3d 778, 539 N.E.2d 431.) The decision to grant or deny a forum non conveniens motion rests within the sound discretion of the trial court, and a court of review will not set aside the decision unless there has been a clear abuse of that discretion. (Continental Casualty Co., 183 Ill. App. 3d 778, 539 N.E.2d 431.) In exercising its discretion, the court must weigh a variety of factors, including the private interests of the parties and certain public interest factors. (See Continental Casualty Co., 183 Ill. App. 3d 778, 539 N.E.2d 431; Japax, Inc. v. Sodick Company Limited (1989), 186 Ill. App. 3d 656, 666, 542 N.E.2d 792.) The pertinent private and public interest factors include “the availability of an alternative forum; ease of access to sources of proof; the availability of compulsory process for unwilling witnesses and the costs for transporting willing witnesses; the enforceability of a judgment if one is obtained; the con-gestión of the courts’ dockets; the need to apply foreign law; the local interest in having localized controversies decided at home; and similar practical problems relating to the trial process.” (Japax, Inc., 186 Ill. App. 3d at 66.) Other factors include the accessibility of witnesses and the convenience of the parties (Torres v. Walsh (1983), 98 Ill. 2d 338, 351, 456 N.E.2d 601), the possibility of viewing the scene of an accident (see Continental Casualty Co., 183 Ill. App. 3d at 782), the “unfairness of burdening citizens in an unrelated forum with jury duty” (Mansfield v. Curtis-Jansen, Inc. (1989), 183 Ill. App. 3d 154, 157, 538 N.E.2d 1282), and the proximity between the forum and the potential witnesses and other sources of proof. (See Bland, 116 III. 2d at 227.) Unless the foregoing factors strongly favor the defendant, the plaintiffs choice of forum will not be disturbed. (Meyers, 113 Ill. 2d at 119; Torres, 98 Ill. 2d 338, 456 N.E.2d 601; Japax, Inc., 186 Ill. App. 3d 656, 542 N.E.2d 792.) Furthermore, if the chosen forum is the plaintiff’s home forum, that choice ordinarily merits substantial deference. (Continental Casualty Co., 183 Ill. App. 3d 778, 539 N.E.2d 431.) However, a court may more readily decline to exercise jurisdiction if the plaintiff has brought suit outside of his home forum (Bland, 116 Ill. 2d at 228), because it is less reasonable to assume that a foreign forum is convenient. Mansfield, 183 Ill. App. 3d 154, 538 N.E.2d 1282.

Turning to the case at bar, we believe that the criteria relevant to a forum non conveniens determination weigh strongly in favor of Whiteside County and warrant the transfer of this case to that forum. We are unable to find any significant practical connections between the litigation and Cook County.

Ramada Hotel Operating Company and Ramada, Inc., apparently have a corporate presence in Cook County. However, they are not the designated defendants in this case. The defendants here are Ramada Inns, Inc., and Ramada Illinois, Inc. Even if defendants’ corporate parent maintains a registered agent, a corporate office and a worldwide sales office in Cook County, those contacts do not constitute a sufficient nexus between the litigation and plaintiffs’ chosen forum. Nothing in the record suggests that any pertinent corporate records or potential corporate witnesses are located in Cook County. Neither the corporate presence of defendants nor the presence of plaintiffs’ attorneys in Cook County justified Cook County as the chosen forum. See Mansfield, 183 Ill. App. 3d at 158.

The only apparent source of proof in Cook County derives from the medical care and treatment that Walsh obtained here just several weeks prior to filing the lawsuit. Our supreme court has cautioned that, in order to prevent a plaintiff from frustrating the forum non conveniens doctrine simply by selecting a treating physician or by retaining an expert witness whose office is in the chosen forum, a court must not accord undue weight to the presence of a treating physician or an expert witness in the forum. Bland, 116 Ill. 2d at 227.

Even assuming that Walsh’s use of medical facilities in Cook County was not a subterfuge to circumvent the doctrine of forum non conveniens, we deem the connection to be insufficient to justify Cook County as the chosen forum. Walsh received medical care and treatment in five other counties: Whiteside, Winnebago, La Salle, Putnam and Lake. The record discloses that Whiteside County is 125 miles from the Daley Center in Cook County; Winnebago County is 70 miles from Whiteside County and 86 miles from Cook County; La Salle County is 81 miles from Whiteside County and 79 miles from Cook County; Putnam County is 67 miles from White-side County and 113 miles from Cook County; and Lake County is 148 miles from Whiteside County and 38 miles from Cook County. The Lake County medical witness, who is the same physician that treated Walsh in Cook County, would not necessarily be inconvenienced by a transfer of this matter to Whiteside County. A discovery deposition of the treating physician might not be necessary (107 Ill. 2d R. 204(c)), and the use of an evidence deposition might obviate the need for the doctor to testify at trial (107 Ill. 2d R. 212(b)).

Furthermore, Whiteside County would provide easy access to key witnesses and sources of proof. Five of the seven potential occurrence and post-occurrence witnesses are located in Whiteside County (125 miles from the Daley Center), one is located 28 miles from Whiteside County (and 100 miles from Cook County) in Lee County, and one is located 53 miles from Whiteside County (and 114 miles from Cook County) in Stephenson County. Plaintiffs live in Bureau County, which is 54 miles from Whiteside County and 111 miles from Cook County; two of the defendants (the Cassenses) are located in Whiteside County; Walsh’s employer is located in White-side County; and the scene of the accident is in Whiteside County. In our opinion, most of the vital sources of proof in this case appear to be located in and around Whiteside County.

We believe further that the congested condition of the Cook County circuit court is another factor that favors the transfer of this case. Statistics contained in the 1983 annual report of the Administrative Office of the Illinois Courts to the Supreme Court of II-linois establish that the problem of court congestion is worse in Cook County than in Whiteside County. The average time lapse for actions seeking damages in excess of $15,000 was 35.2 months in Cook County and 32.5 months in Whiteside County. In Cook County, 75% of such cases were pending more than 12 months; in Whiteside County, the figure was 58%. Therefore, court congestion is another factor that militates against plaintiffs’ choice of forum. See Continental Casualty Co., 183 Ill. App. 3d at 785.

We also believe that the citizens of Whiteside County have an interest in resolving this dispute because it involves the safety of construction sites in Whiteside County. By the same token, we believe that it would be unfair to burden citizens of Cook County with the responsibility of jury duty in a case which has no significant practical connections with Cook County.

Finally, the trial court believed that Meyers v. Bridgeport Machines Division (113 Ill. 2d 112, 497 N.E.2d 745) precluded the transfer of this case to Whiteside County. However, our contrary conclusion is not inconsistent with Meyers. The counties involved in Meyers were Cook County and three counties adjacent to Cook County: Me Henry, Kane and Lake Counties. By way of contrast in the same case at bar, Whiteside, Winnebago, Stephenson, Lee, Bureau, La Salle, and Putnam Counties are not collar counties of Cook County. Therefore, Cook County is a considerably less convenient forum in the case at bar than in Meyers.

For the foregoing reasons, the judgment of the circuit court is reversed, and the cause is remanded with directions that it be transferred to the circuit court of Whiteside County.

Reversed and remanded with directions.

JOHNSON and McMORROW, JJ., concur.


author: JUSTICE BARRY

text:
    VELDE FORD SALES, INC., Plaintiff, v. JOHN BEARCE FORD, INC., Defendant (Ford Motor Company, Inc., Defendant-Appellee; University Ford of Peoria, Inc., Intervenor-Appellant).
    Third District
    No. 3—89—0391
    Opinion filed February 28, 1990.
    Kavanagh, Scully, Sudow, White & Frederick, P.C., of Peoria (Julian E. Cannell and Talmadge G. Brenner, of counsel), for appellant.
    Michael R. Feagley, Michele Odorizzi, and Phillip S. Reed, all of Mayer, Brown & Platt, of Chicago, for appellee.
   JUSTICE BARRY

delivered the opinion of the court:

Action was initiated on February 18, 1988, by Velde Ford Sales, Inc., against John Bearee Ford, Inc., and Ford Motor Company, Inc., pursuant to section 12 of the Illinois Motor Vehicle Franchise Act (Ill. Rev. Stat. 1987, ch. 121V2, par. 751 et seq.), seeking declaratory and injunctive relief to prevent the proposed relocation of defendant John Bearee Ford. On January 16, 1989, while the suit remained on the pretrial docket of the circuit court of Tazewell County, University Ford of Peoria, Inc., filed its petition for leave to intervene, seeking essentially the same relief sought by Velde Ford in the main complaint.

The circuit court denied University’s petition on June 21, 1989, for failure to assert its claim within the 60-day limitations period provided by section 12(b) of the Motor Vehicle Franchise Act (Ill. Rev. Stat. 1987, ch. 121V2, par. 762(b)). University brought this appeal.

The issue argued to this court is whether the circuit court abused its discretion in denying University’s petition to intervene. University asserts that it received a letter from Ford in December 1987 giving notice of the proposed relocation of Bearce; and, thereafter, representatives of University engaged in various conversations with representatives of Ford, expressing dissatisfaction with the proposed move. The circumstances of these conversations and the events transpiring between December 1987 and January 1989, University argues, gave rise to a fiduciary relationship between University and defendants such that the 60-day limitations period was tolled between December 1987 and November 1988, when University’s board of directors ultimately authorized its initiation of a lawsuit. University contends that the circuit court erred in failing to consider a fiduciary relationship when it denied University’s petition to intervene. We do not reach that issue, however, because we find appellate jurisdiction lacking.

Because Velde’s main complaint against Bearce and Ford Motor Company has not been adjudicated, the intervenor’s appeal is interlocutory and jurisdiction is not conferred on this court without “an express written finding that there is no just reason for delaying enforcement or appeal.” 107 Ill. 2d R. 304(a); see, e.g., Schultz v. Gotlund (1989), 185 Ill. App. 3d 943, 542 N.E.2d 53.

In its statement of jurisdiction, University cites Supreme Court Rule 301 (107 Ill. 2d R. 301) and Hammond v. Cape Industries, Inc. (1981), 97 Ill. App. 3d 877, 424 N.E.2d 92. The court’s opinion in Hammond reviewed disparate holdings on the question of whether an order denying intervention is immediately appealable as of right. (Compare Chicago, Milwaukee, St. Paul & Pacific R.R. Co. v. Harris Trust & Savings Bank (1st Dist. 1978), 63 Ill. App. 3d 1012, 380 N.E.2d 835, Board of Trustees of the University of Illinois v. Timpone (1963), 28 Ill. 2d 255, 190 N.E.2d 786, and Monticello College v. Scott (5th Dist. 1973), 13 Ill. App. 3d 133, 299 N.E.2d 778, with Veterans Travel Club of Western Illinois University v. Illinois Commerce Comm’n (4th Dist. 1973), 15 Ill. App. 3d 116, 303 N.E.2d 142, Krause v. White (2d Dist. 1950), 341 Ill. App. 322, 93 N.E.2d 429, and Koester v. Yellow Cab Co. (1st Dist. 1974), 18 Ill. App. 3d 56, 309 N.E.2d 269.) The Hammond court fashioned a rule for ad hoc analysis of the appealability of such cases in terms of the relief sought by the inter-venor: “If [the intervenor] possesses another adequate remedy, intervention should be denied; if not, it should be allowed; and the adequacy of the alternate remedy should be a matter of discretion with the trial court.” (Hammond, 97 Ill. App. 3d at 879, 424 N.E.2d at 94.) Notably, none of the appellate cases considered by the Hammond court were decided by a panel of this district.

Having given the matter our independent consideration, we are of the opinion that an order denying intervention prior to final disposition of the main suit falls clearly within the ambits of Rule 304(a) and cannot be appealed without the circuit court’s special findings for interlocutory appeals. In so holding, we are guided by Justice Schaefer’s observations with respect to former section 50(2) of the Civil Practice Act (Ill. Rev. Stat. 1961, ch. 110, par. 50(2)), the predecessor to Supreme Court Rule 304(a): “The section *** empowers the trial judge to determine whether a partial disposition is final for purposes of appeal. He is familiar with the case as a whole, and can appraise the relation of the remaining issues to those disposed of by the order. If he is inclined to reconsider or revise his ruling, he may preserve that opportunity by declining to make the statutory finding.” Timpone, 28 Ill. 2d at 258, 190 N.E.2d at 788. See also Smith v. Goldstick (1982), 110 Ill. App. 3d 431, 442 N.E.2d 551 (interlocutory order granting intervenors relief not appealable without Rule 304(a) findings).

Moreover, even were we to embrace the Hammond rule, we would decline review in this case. University has alleged no facts to show that it had no other adequate remedy. The trial court made no such finding, and neither do we. Indeed, University’s remedy was to pursue an independent action. The same estoppel arguments that University pursues in this intervention action could have been advanced in a separate suit. And, it is not at all clear that University’s interests are not adequately represented by Velde.

We dismiss the appeal.

Appeal dismissed.

SCOTT and WOMBACHER, JJ., concur.


author: PRESIDING JUSTICE HEIPLE

text:
    DAVID GAHM, Plaintiff-Appellant, v. CATHERINE CAVE et al., Defendants-Appellees.
    Third District
    No. 3—89—0446
    Opinion filed February 27, 1990.
    Fellheimer, Travers & Engelman, Ltd., of Pontiac (Robert M. Travers, of counsel), for appellant.
    Janet Lanpher and Douglas J. Pomatto, both of Heyl, Royster, Voelker & Allen, of Rockford, and Heyl, Royster, Voelker & Allen, of Peoria (Karen L. Kendall, of counsel), for appellee.
   PRESIDING JUSTICE HEIPLE

delivered the opinion of the court:

The plaintiff, David Gahm, appeals from an order of the circuit court of La Salle County granting defendant’s motion for summary judgment in favor of defendant Paul Wachowski as to counts III, IV, V and VI of plaintiff’s third amended complaint. Specifically, plaintiff appeals the decision of the trial court as to counts IV and V.

Plaintiff filed his original complaint on November 5, 1987, alleging that he was attacked by a red heifer that entered onto his property. The complaint further alleged that the heifer was owned by defendant Emmett Cave. On February 24, 1988, plaintiff filed his first amended complaint alleging the liability of defendant Emmett Cave pursuant to section 1 (Ill. Rev. Stat. 1987, ch. 8, par. 1), of the Illinois Domestic Animals Running At Large Act (DARLA). Plaintiff filed his second amended complaint on June 16, 1988, including count III, which alleged the liability of defendant Paul Wachowski. On June 12, 1989, defendant Wachowski filed his motion for summary judgment. Plaintiff filed his third amended complaint on June 23, 1989, and on that same date, the trial court granted defendant’s motion for summary judgment as to counts III, IV, V and VI of the third amended complaint.

It is undisputed that the heifer in question was owned by defendants Emmett and Catherine Cave. Emmett Cave sought the use of Wachowski’s butchering equipment for the purpose of slaughtering his heifer, and Wachowski agreed to let Cave use his equipment. Cave arrived on Wachowski’s land early on the morning of January 27, 1987, with a trailer that held the heifer. Cave backed the trailer up to a holding pen and prepared to unload the heifer. Wachowski came out of his house and exchanged words with Cave, as Cave coaxed the heifer out of the trailer. The heifer broke loose while coming out of the trailer and ran out into an open field. Wachowski and Cave gave chase, enlisting the plaintiff’s help when the heifer entered onto the plaintiff’s land. As plaintiff attempted to aid in her capture, the heifer charged and trampled him.

Count IV of plaintiff’s third amended complaint sought damages from Wachowski pursuant to section 1 (Ill. Rev. Stat. 1987, ch. 8, par. 351) of the Animal Control Act (Act). Count IV alleged that Wachow-ski was an “owner” of the heifer for purposes of the statute. The statute defines “owner” as follows:

“§2.16. ‘Owner’ means any person having a right of property in a dog or other animal, or who keeps or harbors a dog or other animal, or who has it in his care, or acts as its custodian, or who knowingly permits a dog or other domestic animal to remain on or about any premise occupied by him.” (Ill. Rev. Stat. 1987, ch. 8, par. 352.16.)

The trial court found that the Animal Control Act did not apply to this set of circumstances. We agree with the trial court’s determination.

The Animal Control Act places liability upon the owner of an animal which causes injury. (Ill. Rev. Stat. 1987, ch. 8, par. 366.) The statute then goes on to define “owner” in broad terms, most importantly, for this case, including one who “knowingly permits a *** domestic animal to remain on or about any premise occupied by him.” (Ill. Rev. Stat. 1987, ch. 8, par. 352.16.) There is no evidence in the record that the heifer ever remained on or about Wachowski’s property. In fact, the animal escaped before ever being unloaded onto Wachowski’s property.

Additionally, the Illinois Supreme Court addressed the statutory language in Steinberg v. Petta (1986), 114 Ill. 2d 496, and determined that ownership of an animal involved some measure of care, custody or control. Where such right of custody or control does not exist, the statutory requisite is not met. (114 Ill. 2d at 501.) There is no evidence in the record that Wachowski had any degree of control or responsibility toward the heifer.

Finally, this court has previously determined that the Animal Control Act is not the controlling law in actions pertaining to animals running at large. In Zears v. Davison (1987), 154 Ill. App. 3d 408, this court held that the Animal Control Act is inapplicable to actions for injuries allegedly sustained as a result of livestock running at large. The court reasoned that the Animal Control Act is a statute originally designed to control animals which might carry rabies, primarily dogs, and that the Domestic Animals Running at Large Act (Ill. Rev. Stat. 1987, ch. 8, par. 1), is better designed to control in situations regarding livestock, such as cattle, which run at large. Zears, 154 Ill. App. 3d at 411.

In count V, plaintiff alleged a violation of section 1 (Ill. Rev. Stat. 1987, ch. 8, par. 1) of the Domestic Animals Running at Large Act (DARLA), claiming that Wachowski was a “person or owner” of the animal in question, and negligently permitted the cow to escape from its trailer. DARLA states as follows in pertinent part:

“§1. No person or owner of livestock shall allow livestock to run at large in the State of Illinois. All owners of livestock shall provide the necessary restraints to prevent such livestock from so running at large and shall be liable in civil action for all damages occasioned by such animals running at large; Provided, that no owner or keeper of such animals shall be liable for damages in any civil suit for injury to the person or property of another caused by the running at large thereof, without the knowledge of such owner or keeper, when such owner or keeper can establish that he used reasonable care in restraining such animals from so running at large.” (Emphasis added.) Ill. Rev. Stat. 1987, ch. 8, par. 1.

Plaintiff contends that Wachowski falls under the term “keeper” for purposes of liability. He cites the case of Heyen v. Willis (1968), 94 Ill. App. 2d 290, wherein the fourth district concluded that in order to qualify as a “keeper” under DARLA, a person would have to be more than a passive landowner. The Heyen court specified that an individual must exercise some management, control or care for the animal to be a “keeper.” (94 Ill. App. 2d at 292-93.) Plaintiff maintains that because Wachowski was aware that Cave was bringing the heifer to the premises, and he aided Cave in unloading her, he qualifies as a “keeper.”

Plaintiff’s reasoning is flawed, however, because Wachowski merely aided the owner of the heifer in the unloading process. Control of the animal never passed to Wachowski. Ownership and control remained with defendant Cave throughout the unloading process. It was during that process that the heifer escaped. There remains no room for speculation as to who was the “owner or keeper” under the statute.

Had the heifer been successfully unloaded and secured in one of Wachowski’s pens before her escape, an argument could be made for considering Wachowski a “keeper” under DARLA. However, the circumstances of this case illustrate that control was never effectuated in Wachowski. The trial court recognized that plaintiff had no cause of action against Wachowski under DARLA as to Wachowski. Summary judgment was appropriate in this case.

Based on the foregoing, the judgment of the circuit court of La Salle County is affirmed.

Affirmed.

STOUDER and WOMBACHER, JJ., concur.


author: JUSTICE RAKOWSKI

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROY BROWN et al., Defendants-Appellants.
    First District (6th Division)
    Nos. 1—87—0485, 1—87—0530 cons.
    Opinion filed October 27, 1989.
    Modified on denial of rehearing March 23, 1990.

      Randolph N. Stone, Public Defender, of Chicago (Millicent Willis and Alison Edwards, Assistant Public Defenders, of counsel), for appellants.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund and William D. Carroll, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE RAKOWSKI

delivered the opinion of the court:

Roy Brown and Willie McNeal were charged with possession of burglary tools and attempted residential burglary. After a bench trial in the circuit court of Cook County, both defendants received concurrent terms of 10 years for burglary and three years for possession of burglary tools.

The appeals for these defendants have been consolidated in this court. Defendant Brown in this appeal asserts that the trial court should have: (1) granted a severance of his case because of antagonistic defenses; (2) quashed his arrest and suppressed the subsequent lineup identification of him; (3) dismissed the charge of possession of burglary tools because it involved the same behavior as the burglary charge itself; and (4) allowed him to choose treatment for drug addiction under Treatment Alternatives to Street Crime (TASC) in lieu of his prison sentences. Defendant McNeal asserts in his appeal that the trial court should have: (1) excluded the evidence of another burglary committed on the same day; (2) excluded evidence of his vehicle registration unless the State first laid a proper foundation through the car dealer who sold him his car and then presented a certified copy of the registration made before the beginning of this litigation; (3) dismissed the charge of possession because there was no evidence that McNeal ever had physical possession of the burglary tool; and (4) imposed a shorter sentence because the statute under which he received an extended sentence is unconstitutionally vague.

On October 1, 1985, an attempted burglary occurred at the home of Cathleen Sayles, 5412 West Drummond Place in Chicago. Four witnesses observed a black male in the gangway of the Sayles home. Between them, these witnesses observed this male as he attempted to open Sayles’ garage and basement window with a screwdriver, tucked the screwdriver into his pants, entered a car parked in front, and rode away. The witnesses also observed another black male driving the car and noted license number RHY707.

Later that evening, the police located the car and placed it under surveillance. About 40 minutes into the surveillance, Brown walked to the car, placed an object in the trunk, and left. The police followed and arrested him. Shortly thereafter, police arrested McNeal when he entered the car. In the car, the police found two items from another burglary which had also been committed the same day, 4V2 blocks from Sayles’ residence.

After these arrests, Brown appeared in a lineup. There he was identified by the four witnesses from Sayles’ neighborhood. The State later charged both men with attempted burglary and possession of burglary tools.

At trial, the State presented evidence to show that McNeal owned or at least controlled the burglary car. The police officer who conducted the surveillance of the car testified that McNeal tried to drive the car on the night of his arrest. McNeal’s aunt testified that the members of her household, including McNeal himself, previously used the car. Finally, Rosanne Quattrocki, a manager from the motor vehicle facility in Chicago, described the normal procedure for car license registration. The State then presented a certified copy of the record for license number RHY707, which showed that: Lesley Oldsmobile had submitted a registration on July 3, 1985; the Secretary of State had issued McNeal’s plates on August 7; and the records office of the Secretary of State had made a certified copy of these records on December 3.

At trial, McNeal’s theory for defense was based upon mistaken identity. He argued that someone else drove the burglary car for Brown. Twice during the cross-examination, McNeal’s counsel asked a witness to identify Brown. Even though these witnesses also identified Brown during the case in chief, Brown claimed that by reason of McNeal’s theory of defense, he was prejudiced from his trial as a codefendant with McNeal.

The State also introduced evidence that McNeal, another person and McNeal’s car were at the scene of a burglary that occurred around the same time and about blocks from the burglary attempt at Sayles’ residence.

Following Brown’s conviction, at his sentencing hearing, he requested treatment under the TASC program of the Alcoholism and Substance Abuse Act (Act). Brown stipulated that he had received treatment under the Act in 1981 as a result of a plea of guilty on a burglary charge. In that case, the trial judge had deferred entering judgment and placed Brown under TASC supervision for two years. On appeal, now, Brown claims that he did not receive deferred prosecution but instead, by reason of this plea of guilty, he in fact had been convicted. Thus, he asserts, he was eligible for TASC treatment under section 22 of the Act (Ill. Rev. Stat. 1985, ch. lllbk, par. 6322).

As noted earlier, the trial judge found both defendants guilty here. After making the finding, the judge reviewed the record of both defendants and found that McNeal’s record included one conviction for first degree murder and another for armed robbery, and that the past history of both defendants made them eligible for extended sentences beyond the three to seven years provided for the Class 2 felony of attempted burglary. He then, as previously stated, sentenced each defendant to concurrent terms of 10 years for attempted burglary and three years for possession of burglary tools.

Brown’s first issue presented in his appeal is that the trial court committed reversible error when it denied his motion for severance due to the antagonistic defenses between him and McNeal. This occurred, Brown says, because in his own defense, he denied guilt, while defendant McNeal, on the other hand, claimed that Brown had committed the crimes but did so with another companion.

A trial court may order separate trials where the joinder of defendants will prejudice one defendant at trial. (Ill. Rev. Stat. 1985, ch. 38, par. 114 — 9.) When defendants have been indicted jointly, they will usually stand trial jointly unless some problem, like antagonistic defenses, would cause unfair prejudice to one of the defendants. (People v. Daugherty (1984), 102 Ill. 2d 533, 540-42, 468 N.E.2d 969, 972.) At a bench trial, however, the law will normally presume that the judge, as trier of fact, can exclude improper evidence from consideration even if some improper material does come in during the trial. People v. Moore (1984), 128 Ill. App. 3d 505, 514, 470 N.E.2d 1284, 1290-91.

On appeal, Brown claims that the trial testimony elicited by McNeal in cross-examination had implicated him and thus prejudiced him. The record does reflect that two witnesses did identify Brown on cross-examination by McNeal, but both of these witnesses had also identified him during the prosecution’s case in chief. Since Brown had already been identified prior to McNeal’s cross-examination, we do not find this cross-examination testimony to be a sufficient showing of prejudice due to antagonistic defenses. This evidence was merely cumulative at most and not unduly prejudicial under the circumstances. Consequently, Brown did not demonstrate any error on the part of the trial court in denying severance for defendant Brown.

Brown’s second issue raised on appeal is that the trial court committed reversible error when it denied his motion to quash his arrest and suppress any subsequent evidence obtained as a result of the arrest. The trial court found that the police had probable cause for a warrantless arrest of Brown, and for that reason, the trial court also admitted the lineup identifications obtained after Brown’s arrest.

Police officers may not simply arrest someone but must have probable cause to do so. (Brown v. Texas (1979), 443 U.S. 47, 61 L. Ed. 2d 357, 99 S. Ct. 2637.) Nonetheless, the officers need only enough knowledge to believe that the person arrested could be guilty of some known offense. (People v. Lippert (1982), 89 Ill. 2d 171, 178, 432 N.E.2d 605, 609.) Additionally, probable cause may be found in a police officer’s factual knowledge as interpreted through his prior law enforcement experience. (People v. Reynolds (1983), 94 Ill. 2d 160, 166, 445 N.E.2d 766, 769.) And, if a trial court finds that the police had such a probable cause in a particular case, a reviewing court should let the finding stand unless it is manifestly erroneous. (Reynolds, 94 Ill. 2d at 166, 445 N.E.2d at 769.) If, on the other hand, the arrest is illegal, evidence acquired after the arrest should be suppressed as “fruits of the illegal arrest.” People v. Sampson (1980), 86 Ill. App. 3d 687, 693-95, 408 N.E.2d 3, 9.

The officers in this case arrested Brown during a surveillance of the car seen at the Sayles burglary, which had Illinois license number RHY707. The police officers also knew at that time that the burglary attempt in question involved two black males. On the evening of the crime, the police had found the car in an alley behind McNeal’s home. After watching the car for about 40 minutes, the police officers saw Brown walk out of a gangway, place an object in the car trunk, and head down the alley. The officers followed Brown and arrested him. Subsequently, Brown was placed in a lineup at the police station, where four witnesses of the attempted burglary identified him.

We believe that the police officers, acting with knowledge of the attempted burglary, during a surveillance of the car that had the license number identified by the witnesses to the attempted burglary, and having viewed Brown approach the auto and place an object in the trunk, had sufficient probable cause to arrest Brown. Accordingly, we find that the trial court’s rulings which denied Brown’s motion to quash and admitted the post-arrest lineup identification were proper.

Brown’s third issue on appeal is that the trial court committed reversible error when it denied him the opportunity to elect the TASC program in lieu of sentencing. At trial, Brown stipulated that he had received deferred prosecution and treatment under the Act earlier when he pleaded guilty to a burglary charge in 1981. After receiving his stipulation, the court found that Brown was barred by the Act for a second consideration for treatment in lieu of sentencing. On appeal, Brown claims that he never actually received a deferral of prosecution which would bar his elective treatment now, but rather had been convicted and only received treatment as a substitute for the sentencing. Brown argues that, even though he had thus received TASC consideration earlier, the Act only prohibits a second deferral of prosecution, not a second chance at treatment instead of a prison term.

The State asserts that Brown has already waived this issue for purposes of appeal because he did not include it in his written post-trial motion. (People v. Enoch (1988), 122 Ill. 2d 176, 186, 198, 522 N.E.2d 1124, 1130, 1135.) Hence, the State contends that this issue should not now be considered. Of course, an appellate court may consider even waived errors where the evidence is closely balanced and a possibility exists that an innocent person may have been convicted because of the issue in question. (Enoch, 122 Ill. 2d at 199, 522 N.E.2d at 1136.) This is what Brown argues here. While we do not find this to be the case here, nevertheless, we will consider Brown’s arguments for the purpose of fully treating his entire appeal.

Under the Act in effect at the time of trial, an addict charged with or convicted of a crime could elect under certain circumstances supervised treatment in place of normal sentencing. (Ill. Rev. Stat. 1985, ch. IIIV2, pars. 6301, 6323.) The Act contained the following relevant provisions:

(1) Section 22 allowed the court to “advise” an addict who had been “charged with a crime” that “any judgment of conviction upon a plea or finding of guilty by the court shall be deferred if he elects to submit to treatment and is accepted.” Ill. Rev. Stat. 1985, ch. HV-k, par. 6322.
(2) Section 23 allowed the court to advise the addict who had been “convicted of a crime” that he “may be placed on probation if he elects to submit to treatment and is accepted.” Ill. Rev. Stat. 1985, ch. lll1/2, par. 6323.
(3) Section 21 listed exceptions to the treatment options under sections 22 and 23. The important one here excluded any addict who was “charged” with a Class 2 or greater felony and who had “previously been admitted to a treatment program under Section 22” for treatment within the program. Ill. Rev. Stat. 1985, ch. 1111/2, par. 6321(g).

Brown asserts that his 1981 treatment did not involve a deferred prosecution which would have placed it under section 22. However, this assertion here is contrary to Brown’s position at trial. At trial, Brown stipulated that he had pleaded guilty to a burglary charge in 1981 and that the trial judge then deferred entering judgment and placed him under TASC supervision for two years. On appeal, as stated earlier, Brown now asserts that the stipulation was in error, that actually probation was the sentence for the conviction, and that, consequently, he remains eligible for treatment.

The State notes that the Illinois Revised Statutes define a “conviction” as “a judgment of conviction or sentence entered upon a plea of guilty or upon a verdict or finding of guilty.” (Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 1—5.) The State contends that, in the absence of a sentence, a judgment of conviction is not final. (In re J.N. (1982), 91 Ill. 2d 122, 127, 435 N.E.2d 473, 475.) The State also argues that since Brown elected the treatment program in 1981, this election was in lieu of a sentence and constituted a deferred prosecution under section 22.

As a second basis for his contention, Brown argues that he remained eligible for the treatment program, in any event, because it was not the intent of section 21(g) of the Act to make a charged felon ineligible for a second chance at deferred prosecution, but merely to make him ineligible for a second chance at treatment. Illinois appellate courts have not yet specifically considered this exact issue under section 21(g) or its successor in section 10 — 101(g) of the Alcoholism and Other Drug Dependency Act (Ill. Rev. Stat. 1987, ch. HV-k, par. 6360 — 1(g)). Our First District Appellate Court has, however, ruled that because there is a list of disqualifying factors under section 21 this demonstrates that the legislature did not intend all drug addicts to be eligible for alternative treatment under the Act. (People v. Hamilton (1987), 155 Ill. App. 3d 555, 558, 508 N.E.2d 385, 389.) Trial courts have interpreted this legislative intent to mean that defendants do not have an absolute right to be sentenced to treatment under the Act even if they are, in some respects, eligible. (People v. Hirschmann (1988), 175 Ill. App. 3d 150, 153, 529 N.E.2d 760, 762.) For example, a court may deny treatment if the record indicates that the addict will not comply with the program and is a threat to society. (Hirschmann, 175 Ill. App. 3d at 153-54, 529 N.E.2d at 762-63.) Finally, because defendants do not have an absolute right to treatment under the Act, a court’s ruling concerning whether an offer of treatment is proper is discretionary and should not be reversed absent arbitrary action or abuse of discretion. Hirschmann, 175 Ill. App. 3d at 153, 529 N.E.2d at 762.

At the sentencing hearing here, the trial judge considered the TASC program as an option for Brown but, after deliberation, he gave him concurrent prison terms instead. The judge here found that since section 21(g) of the Alcoholism and Substance Abuse Act formed part of the listed exemptions under section 21, the treatment program here, as well as deferred prosecution, was barred here. The judge also found that a person who had not succeeded under the benefits of a deferred prosecution and treatment program at an earlier date was probably not a good candidate for the similar treatment now.

Brown had stipulated at trial that he had received deferred prosecution and treatment in 1981 and this rendered him ineligible for deferred prosecution under section 22. Hence, we believe that the trial court’s reading of section 21(g) was reasonable under the circumstances. We also believe that the court did not abuse its discretion in sentencing Brown to a prison term instead of treatment on the basis of the record.

Brown’s fourth issue on appeal is that the State never proved any conduct to support a separate charge of and conviction for possession of burglary tools. Brown contends that what the State did prove concerning the charge merely arose out of the same conduct that led to his conviction for the attempted burglary.

A conviction for possession of burglary tools must fall if the conviction rests on the same conduct as a conviction for attempted burglary. (People v. Blahuta (1970), 131 Ill. App. 2d 200, 205-06, 264 N.E.2d 819, 826.) A possession conviction will stand, however, where the possession involved some separate conduct. (People v. Cox (1979), 71 Ill. App. 3d 850, 862, 389 N.E.2d 1238, 1243-44.) In Blahuta the defendant was caught with his tools in the act of attempted burglary. Since there was no separate act, however, the court did not find Bla-huta guilty of the possession of burglary tools. In Cox the court found the act of carrying tools from the burglary to be sufficient separate conduct to support a separate charge of possession.

Brown relies on Blahuta because his possession of the burglary tool occurred at the scene of the attempted burglary. He characterizes all activity around the Sayles property as a single episode of conduct. The State relies on Cox, asserting that Brown both used the screwdriver in his attempt to break into the buildings on the Sayles property and then also left the scene while carrying the screwdriver away with him.

Brown’s conduct in carrying the screwdriver away from the Sayles property does constitute identifiable, separate conduct sufficient for a separate conviction on the possession count. Thus, we find no error in Brown’s conviction and sentence for possession of burglary tools.

McNeal’s first contention on appeal is that the trial court committed reversible error when it admitted evidence of another burglary. The court allowed the State to present evidence that showed McNeal and his car were seen at a burglary committed AVz blocks away from the Sayles attempted burglary and at about the same time.

Generally, evidence of other offenses is inadmissible. It may be admitted under certain circumstances, however, to show such things as identification, common scheme, or intent. (People v. Alexander (1983), 93 Ill. 2d 73, 79, 442 N.E.2d 887, 890.) The admission of other evidence to prove identification, common scheme or intent is within the discretion of a trial judge and, again, should not be reversed unless the judge has abused that discretion. People v. Ward (1984), 101 Ill. 2d 443, 455-56, 463 N.E.2d 696, 702.

Of course, the information from one crime can also help identify a defendant as a criminal who operates in a particular manner. (People v. Kristovich (1975), 32 Ill. App. 3d 979, 984, 336 N.E.2d 772, 777.) McNeal claims, however, that mistaken identity was not an issue raised in defense. Nonetheless, McNeal did claim at trial that someone else drove Brown in the burglary car. In order to establish the identity of McNeal as one of the burglars at the Sayles home, the State presented the evidence that a car with two black males owned and driven by McNeal at the Sayles attempted burglary was also seen at a nearby burglary.

Evidence of other crimes may also be used to establish intent. (People v. Sayles (1985), 130 Ill. App. 3d 882, 889-90, 474 N.E.2d 870, 876-77.) Criminal intent can be established by showing general areas of similarity. (People v. Bartall (1983), 98 Ill. 2d 294, 309-14, 456 N.E.2d 59, 66-70.) At the trial here, the State showed that McNeal had burglarized another nearby home and used the same general procedure to approach the Sayles property. Although McNeal argues that intent was not an issue raised in defense, the State maintains that, on the contrary, regardless of McNeal’s defenses, it needed to prove intent to sustain the charge of attempted burglary.

We find that the trial court properly exercised its discretion in admitting the evidence of the prior burglary to support the State’s contentions concerning identity and intent. We therefore find there was no error in this regard.

McNeal’s second assertion on appeal is that the trial court improperly admitted a certified copy of an application for a vehicle title or license registration from the office of the Secretary of State. McNeal claims that the copy itself was improper because it had been prepared especially for trial. He also contends that the State failed to lay a foundation for admitting the application because it never questioned anyone from Lesley Oldsmobile, which originated the registration at the time the car was purchased. Hence, McNeal argues, the State had not established his control of the auto at the time of the attempted burglary.

Illinois law permits the admission of a governmental business record into evidence if that record was made in “the regular course of any business.” (Ill. Rev. Stat. 1985, ch. 38, par. 115 — 5.) In effect, a court must determine that the public record was either authorized by statute or regulation or was required by the nature of the public office. The court must also find that the public record was properly recorded and maintained. People v. Williams (1986), 143 Ill. App. 3d 658, 663, 493 N.E.2d 362, 366.

The statute further provides that the Secretary of State may prepare certified copies of records in his office and that these copies “shall be admissible in any proceeding in any court in like manner as the original thereof.” (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 2 — 108.) Illinois courts have accepted certified copies of these records for over a century. (See, e.g., Stevison v. Earnest (1875), 80 Ill. 513.) This common-law rule developed in part because of the danger that public records would be lost or damaged if the originals had to always be displayed in court. (E. Cleary, Cleary & Graham’s Handbook of Illinois Evidence §902.2, at 641 (4th ed. 1984).) Obviously, unless public officials stockpile certified copies, many of the copies used in court must be prepared during the course of litigation.

At trial, the State introduced a certified copy of the public record of McNeal’s license application through the testimony of Rosanne Quattrocki, a manager from the motor vehicle facility in Chicago. She detailed the steps required by law for creating a record of license application. Such a procedure begins when a dealer submits a registration form for a car he or she has just sold. Here, the State introduced the certified copy of an application that showed Willie F. McNeal purchased a car from Lesley Oldsmobile on July 3, 1985, and received license plate number RHY707 on August 7, 1985. At trial, Ms. Quattrocki described the copy as a true and correct copy certified by the Secretary of State’s office on December 3,1985.

The State also argues that, even assuming the court erroneously admitted McNeal’s application record, the error was harmless because the same point was also established by other evidence. (Williams,, 143 Ill. App. 3d at 663, 493 N.E.2d at 366.) At trial, the police officer who initiated the surveillance of the car traced from the attempted burglary testified that McNeal entered the car during the surveillance. Additionally, defendant McNeal’s aunt testified that all members of her household, including McNeal, used the car.

We believe that a proper foundation was established for the admission of McNeal’s license registration, and, in any event, the State also provided additional evidence of McNeal’s control of the car, as noted above. Therefore, we find that the trial court properly exercised its discretion when it admitted the record of McNeal’s license registration and, even if there had been error, the error would have been harmless.

McNeal’s third issue on appeal is that the State never proved a necessary element for the charge of possession of burglary tools. McNeal contends that since the State never demonstrated he owned, used, or held the tools, the possession element of the offense is missing from the necessary proof.

Under the Illinois statute, a person commits the crime of “possession of burglary tools when he possesses any key, tool, [or] instrument *** suitable for use in breaking into a building *** with intent to enter any such place and with intent to commit therein a felony or theft.” (Ill. Rev. Stat. 1985, ch. 38, par. 19 — 2(a).) Possession is an element the State must prove.

The State argues that the possession element was proven under the theory of accountability, i.e., a person is responsible if “he solicits, aids, abets, agrees or attempts to aid” some other person “in the planning or commission of the offense.” (Ill. Rev. Stat. 1985, ch. 38, par. 5 — 2(c).) To be accountable for the possession of burglary tools, a person must aid the actual possession or control the place where the tools were kept. (People v. Obrochta (1986), 149 Ill. App. 3d 944, 952-53, 500 N.E.2d 1059, 1063-64.) This means, however, that a person can be held accountable for possession if possession was part of a common design to commit some other crime such as burglary. People v. Wain (1988), 169 Ill. App. 3d 264, 274, 523 N.E.2d 1318, 1325.

The State further argues that McNeal is accountable under the facts here because of the common design of Brown and himself in the attempted burglary. The trial record recounts Brown’s use of the screwdriver and the fact that McNeal owned the car and drove Brown to and from the scene of the attempted burglary. Although, unlike the defendant in Wain, McNeal did not own or control any place where burglary tools were found, he nevertheless did carry the screwdriver in his car as he drove Brown to and from the attempted burglary site. Thus, McNeal did aid and abet Brown’s attempted burglary by transporting him to and from the attempted burglary. Accordingly, we find that the facts elicited at trial do support McNeal’s conviction for possession of burglary tools under an accountability theory of responsibility. Ill. Rev. Stat. 1985, ch. 38, par. 5 — 2(c).

McNeal’s fourth issue on appeal is that the trial court erred by giving him an extended sentence based on statutory provisions which are unconstitutionally vague. In his view, the Unified Code of Corrections is unconstitutionally vague in that it allows different treatment for felons with prior convictions and because it bases this difference on the different classes of felonies.

McNeal admits that he did not raise this issue at the sentencing hearing or in a post-sentencing motion; he claims, however, that we should consider this issue under the plain error rule of the Illinois Supreme Court. (107 Ill. 2d Rules 615(a), (b).) Under these circumstances, Illinois courts may address a constitutional argument even though the defendant has technically waived his right to appeal. See People v. Baker (1983), 114 Ill. App. 3d 803, 809, 448 N.E.2d 631, 635.

The Unified Code of Corrections allows courts to consider certain factors as a basis for imposition of an extended-term sentence. (Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 5—3.2(b).) Among reasons for which a court may impose an extended sentence is “a defendant is convicted of any felony, after having been previously convicted in Illinois of the same or greater class felony, within 10 years, excluding time spent in custody.” (Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 5— 3.2(b)(1).) This, the language of “the same or greater class felony,” is what McNeal argues deprives him of his constitutional rights.

Illinois courts have not ruled on this precise point. They have, however, reviewed other provisions in section 5 — 5—3.2 which were challenged on the grounds of impermissible vagueness. (See, e.g., People v. Clark (1981), 102 Ill. App. 3d 414, 429 N.E.2d 1225.) Sentencing statutes, like other statutes, are presumptively valid, and a statute is not too vague unless the ultimate decision rests on “whims” rather than “any objective criteria or facts.” Clark, 102 Ill. App. 3d at 423, 429 N.E.2d at 1262.

In this case, McNeal was convicted of a Class 2 felony which carries a term of three to seven years. His prior convictions included one for first degree murder, a separate class felony, and one for armed robbery, a Class X felony. Under the Illinois statute, prior conviction for a more serious felony renders a newly convicted felon eligible for an extended sentence. After reviewing the objective facts about these higher class felony convictions committed by McNeal, the trial judge sentenced McNeal to an extended term of 10 years.

We find that McNeal waived the constitutional issue here, but, even if we considered it under the plain error rule, we believe that the statutory wording “same or greater class felony” does provide objective criteria for sentencing and is not unconstitutionally vague. We find the 10-year sentence given by the trial court to be proper under the circumstances.

For all of the above reasons, the judgments of the circuit court of Cook County for defendants Brown and McNeal are affirmed.

Judgments affirmed.

McNAMARA and EGAN JJ., concur.

       Justice Quinlan participated in the original opinion of the court prior to his resignation. Justice Rakowski has read the briefs and listened to the tapes of the oral argument.