author: JUSTICE SLATER

text:
    McKENZIE DREDGING COMPANY, INC., Plaintiff-Appellant, v. DENEEN RIVER COMPANY, INC., et al., Defendants-Appellees.—McKENZIE DREDGING COMPANY, INC., Plaintiff-Appellee, v. DENEEN RIVER COMPANY, INC., et al., Defendants-Appellants.
    Third District
    Nos. 3—92—0801, 3—92—0836 cons.
    Opinion filed August 17, 1993.

      Barash, Stoerzbaeh & Henson, of Galesburg (John W. Robertson, of counsel), for McKenzie Dredging Company, Inc.
    Law Office of Kevin R. Galley, of Lacón (Kevin R. Galley, of counsel), for Deneen River Company, Inc., et al.

   JUSTICE SLATER

delivered the opinion of the court:

Plaintiff McKenzie Dredging Company entered into a joint venture agreement with Deneen River Company (Deneen) to do construction work on navigational locks at Quincy, Illinois, and Saverton, Missouri, for the Army Corps of Engineers. After completion of the project, plaintiff filed an action for an accounting and other damages against Deneen. While the suit was pending, Deneen sold its assets and the corporation was dissolved. Melvin, Justine, Vernon and Charlene Budd, the former shareholders of Deneen, were then joined as defendants. Following a bench trial, the trial court entered a judgment in favor of plaintiff for $44,174.77. Plaintiff’s sole issue on appeal is its claim that the court erred in denying its request for prejudgment interest. Defendants have also appealed, contending that the trial court erred by: (1) disallowing payment of $53,050 to Melvin Budd, Sr., for supervising the project; and (2) disallowing payment for use of Deneen’s “floating plant” (barge, crane, tugboat, etc.) and equipment. We affirm.

The joint venture agreement was entered into by the parties on October 25, 1985. The agreement provided for, inter alia, the allocation of personnel expenses, out-of-pocket expenses and the rental of construction equipment and “floating plant” used on the project. After allocation of these charges, the parties were to equally divide any profits or loss. The agreement also provided that William Ashton, the engineer of the project, was to act as arbitrator of any disputes and as trustee of any payments made by the Corps of Engineers. Ashton did not act in either capacity, however, and the payments made by the Corps of Engineers were deposited in Deneen’s general account. These payments totalled $626,982.55, and Deneen paid plaintiff $84,412.85.

After the project was completed in September of 1986, Deneen hired accountant Clyde Martin to prepare a cost summary of the job. Martin did not include charges for the rental of plaintiff’s floating plant, even though such charges were expressly provided for in the joint venture agreement. Martin did allow, however, rental charges for the use of Deneen’s floating plant. Martin concluded that the project lost money and that plaintiff owned Deneen over $78,000.

Gene Ginoli, a certified public accountant, was Martin’s employer. Ginoli reviewed Martin’s work but he did not independently verify it. Ginoli testified that they were instructed to cost the job out without regard to the joint venture agreement because Melvin Budd, Sr., president of Deneen, felt that the agreement had been substantially violated.

Cecil Cox, a certified public accountant, testified for plaintiff. Cox concluded that the project lost $277,643.66 if owned equipment and floating plant rentals were allowed to both parties. According to Cox, if these charges were allowed, plaintiff was owed $145,531.60. If these charges were disallowed, however, the project earned a profit of $120,303 and plaintiff was owed $67,429.21.

After six days of testimony, the trial concluded on May 24, 1992, and the trial court issued a letter of opinion on August 7, 1992. The court found in favor of plaintiff for $52,691.52, but it rejected plaintiff’s request for prejudgment interest. The court stated that the agreement did not provide for interest and “the history of the agreement would not seem to justify the same.” The court also noted that Ashton’s refusal to act as arbitrator was beyond the control of the parties. Both plaintiff and the defendants filed post-trial motions and the court issued its final order on September 30, 1992. The court corrected a computational error and entered judgment in favor of plaintiff for $44,174.77. The court again denied plaintiff’s claim for prejudgment interest, finding that the amount owed was disputed and that there was no showing that Melvin Budd, Sr., was not acting in good faith and with a reasonable belief in his position. The court also noted that the litigation was controlled by the plaintiff, that a bench trial may be called to hearing in Marshall County within 30 to 45 days, and that to allow plaintiff “to proceed with this matter for over five years and then claim interest would not seem to be well founded.” As indicated earlier, both plaintiff and defendants have appealed from the trial court’s order.

We first address plaintiff’s argument that the trial court erred in denying its request for prejudgment interest. Plaintiff first contends that money wrongfully retained by one party to a joint venture is subject to a constructive trust, even if that party acted in good faith. Therefore, plaintiff argues, the trial court erred in denying prejudgment interest on the basis that Melvin Budd had a reasonable belief in his position and was acting in good faith.

Even assuming, however, that a constructive trust may be imposed where a defendant acts in good faith, we find that such a proposition has little relevance to the question of whether to allow prejudgment interest. The imposition of a constructive trust and the award or denial of prejudgment interest are separate issues, and we find plaintiff’s attempt to equate the two unpersuasive.

Plaintiff next maintains that an equitable award of prejudgment interest is intended to fully compensate the plaintiff, rather than punish the defendants. Plaintiff relies on In re Estate of Wernick (1989), 127 Ill. 2d 61, 535 N.E.2d 876, where the court stated:

“The rationale underlying an equitable award of prejudgment interest in a case involving a breach of fiduciary duty is to make the injured party complete by forcing the fiduciary to account for profits and interest he gained by the use of the injured party’s money. [Citations.] The injured party is thus compensated for any economic loss occasioned by the inability to use his money. Prejudgment interest in this context acts as a concept of fairness and equity and not as a sanction against the defendant. [Citation.] Fundamental principles of damages and compensation dictate that when money has been wrongfully withheld the victim receive interest for the wrongdoer’s retention of his money.” Wernick, 127 Ill. 2d at 87, 535 N.E.2d at 888.

We agree, of course, that the purpose of awarding prejudgment interest is to fully compensate a party when its money has been wrongfully withheld. We do not agree, however, that this concept mandates an award of prejudgment interest in every case involving a dispute between joint venturers. As the Wernick court pointed out:

“In Illinois, prejudgment interest may be recovered when warranted by equitable considerations, and disallowed if such an award would not comport with justice and equity. [Citations.] *** Whether equitable circumstances support an award of interest is a matter lying within the sound discretion of the trial judge. [Citations.] Such a determination will not be disturbed on review unless it constitutes an abuse of discretion.” Wernick, 127 Ill. 2d at 87, 535 N.E.2d at 888.

Plaintiff next contends that the trial court implicitly suggested that plaintiff had the burden of proving that defendants had acted in bad faith when it noted that “there is no showing that [Melvin Budd] was not acting in good faith and with a reasonable belief in his position under the circumstances.” Plaintiff argues that defendants had the burden of producing an accounting because they managed or controlled the joint venture.

Once again, while plaintiff has correctly stated the law, we find that it has little relevance to the issue of prejudgment interest. A party managing or controlling a joint venture and possessing the records of the venture has the burden of producing the accounting, and any errors or omissions are resolved against the party producing it. (Kennedy v. Miller (1991), 221 Ill. App. 3d 513, 582 N.E.2d 200.) The issue here is not, however, whether the defendants produced a satisfactory accounting. The issue is whether the circumstances of the case, viewed in their totality, warranted an award of prejudgment interest. We find no error by the trial court in considering defendants’ good faith as a factor in making this determination, nor do we find any improper shifting of the burden of proof.

Plaintiff next argues that, in denying prejudgment interest, the trial court improperly relied on the fact that the amount owed was disputed. Plaintiff correctly notes that a court of equity is not precluded from awarding prejudgment interest merely because the amount due to plaintiff was uncertain. (See, e.g., Kennedy, 221 Ill. App. 3d 513, 582 N.E.2d 200; but cf. Alguire v. Walker (1987), 154 Ill. App. 3d 438, 506 N.E.2d 1334 (award of statutory prejudgment interest is improper unless damages are liquidated or subject to exact computation).) We find, however, that it is not improper for a court to consider the uncertainty of plaintiff’s right to recover, or the difficulty of ascertaining the amount of recovery, as factors in determining the propriety of awarding prejudgment interest. Obviously, if plaintiff’s right to recover was clear, and the amount due was easily ascertainable, those factors would weigh in favor of awarding interest. We find no error.

Plaintiff next cites as error the trial court’s statement that “the litigation was controlled by the [pjlaintiff, and the [cjourt would take notice of its docket that in Marshall County, a person may call a bench trial to hearing at any time within 30 to 45 days. To allow the [pjlaintiff to proceed with this matter for over five years and then claim interest would not seem to be well founded.” Plaintiff contends that the court’s statement indicates that it was ruling against plaintiff based on laches or estoppel, defenses which were never pleaded by defendants. We disagree. The court’s order makes no reference to either laches or estoppel as a basis for its ruling. The court was merely citing the lengthy period of litigation as an additional factor in support of its decision to deny prejudgment interest. We note that plaintiff’s complaint was filed on March 12, 1987, and that trial began on May 26,1992.

Plaintiff further argues that any delay in bringing the case to trial was inherent to the proceedings or was attributable to the defendants. Plaintiff points out that Deneen initially opposed an accounting, later objected to producing certain documents and had to be ordered to answer interrogatories. While we agree with plaintiff that it was not entirely responsible for the delay in bringing this case to trial, we do not believe that it was erroneous for the court to attribute some of the five-year delay to plaintiff and to consider it as a factor in denying prejudgment interest. We note, for example, that after plaintiff filed its reply to Deneen’s answer and its answer to Deneen’s counterclaim on May 22, 1987, the record reflects that there was no activity until Deneen filed a notice of deposition on May 9, 1988. The next activity of record was on April 5, 1989, when Deneen filed another notice of deposition. Under the circumstances, we find no error.

Finally, plaintiff maintains that because the trial court committed errors of both law and fact, its decision to deny prejudgment interest is entitled to no deference and may be independently reviewed by this court. As we have indicated above, however, the trial court did not err in its consideration of the various factors presented by this case. Therefore, the trial court’s decision to deny prejudgment interest may not be disturbed unless it constitutes an abuse of discretion. (Wernick, 127 Ill. 2d 61, 535 N.E.2d 876.) After reviewing the record in this case, we believe that the trial court could properly have awarded prejudgment interest to the plaintiff. In determining whether the court abused its discretion, however, the issue is not whether this court agrees with the circuit court’s decision. (Zurich Insurance Co. v. Raymark Industries, Inc. (1991), 213 Ill. App. 3d 591, 572 N.E.2d 1119.) An abuse of discretion occurs only when no reasonable person would take the position adopted by the trial court. (Vaughn v. Northwestern Memorial Hospital (1991), 210 Ill. App. 3d 253, 569 N.E.2d 77.) We are unable to fairly conclude that the trial court’s decision to deny prejudgment interest was unreasonable, and we find no abuse of discretion.

We next consider the defendants’ contention that the trial court’s decision was against the manifest weight of the evidence in two respects. First, defendants argue that the trial court erred in finding that Melvin Budd, Sr., was not entitled to compensation in the amount of $53,050 for his services to the project. Defendants maintain that their claim is supported by the personnel records of Deneen, wherein Melvin Budd, Sr., recorded the hours he spent working on the project. Defendants also rely on the testimony of John Budd and Melvin Budd, Jr., employees of Deneen, that their father, Melvin Budd, Sr., worked on the project in a supervisory capacity and also performed other labor as circumstances required.

Plaintiff responds by citing the testimony of its president, Robert McKenzie, that he and Melvin Budd, Sr., agreed that Deneen’s supervisor would be Melvin Budd, Jr., and plaintiff’s supervisor would be Wayne Dennison. Paragraph 3(d) of the joint venture agreement provided that only working personnel were to be charged to the contract and supervision was limited to one man per day per company. Plaintiff also notes the testimony of its accountant, Cecil Cox, that in his opinion, the $53,050 for labor by Melvin Budd, Sr., should not have been charged to the contract.

The trial court found that both parties brought their expertise into the joint venture and both were principals with an interest in sharing in the profits of the project. The court ruled that there was no basis for either principal to charge for his time and services, and that to do so would directly conflict with paragraph 3(d) of the agreement.

This court must defer to the findings of the circuit court unless they are contrary to the manifest weight of the evidence. (In re Estate of Wessels (1990), 203 Ill. App. 3d 1080, 561 N.E.2d 1212.) A decision is against the manifest weight of the evidence only if the opposite conclusion is clearly apparent. (Mobil Oil Corp. v. City of Rolling Meadows (1991), 214 Ill. App. 3d 718, 574 N.E.2d 41.) When a trial court has heard and observed the witnesses and their testimony is contradictory, a reviewing court will not substitute its judgment for that of the trial court. (Erie Casein Co. v. Anric Corp. (1991), 217 Ill. App. 3d 602, 577 N.E.2d 892.) We find that the trial court’s ruling is amply supported by the testimony of Robert McKenzie concerning the agreement regarding supervisory personnel. The court’s finding that paragraph 3(d) of the agreement precluded either Melvin Budd, Sr., or McKenzie from charging for his services is not against the manifest weight of the evidence.

Defendants’ remaining contention is that the court erred in not allowing payment to Deneen-for use of its floating plant and equipment. The joint venture agreement originally contemplated that only plaintiff’s floating plant would be used, and paragraphs 3(h) and 3(i) specified the rental rates and that the rental cost would be prorated according to use of the plant at each jobsite. At an early stage in the project, however, the parties agreed to bring in Deneen’s floating plant because a larger crane was needed. There was testimony that plaintiff’s equipment was also used for various operations, however. Melvin Budd, Sr., kept a record of equipment usage during the course of the project. Defendants maintain that the trial court should have calculated the rental rates for Deneen’s floating plant based on the rental rates set forth in paragraph 3(h) of the agreement. The trial court found that the parties never reached an agreement concerning the cost for Deneen’s equipment. The court determined that “the spirit and intent of the agreement may still be maintained and a proper accounting made without regard to assignment of rental costs, and further that the parties have by their actions waived claims for the same.”

We find that the court did not err in disallowing equipment rental costs to both Deneen and plaintiff. The joint venture agreement specified rental rates only for use of plaintiff’s floating plant, not Deneen’s. When it became necessary to use Deneen’s equipment, the parties, by their actions, modified the agreement. Under the circumstances, the court could have accepted the computation of Deneen’s accountant that its rental costs were $160,920. The court could also have accepted the figures of plaintiff’s accountant indicating that Deneen’s rental costs were $109,883.11 and that the cost for renting plaintiff’s equipment was $251,887.45. Rather than attempting to reconcile these conflicting accounts, however, the court chose to disallow equipment rental costs to both parties as a means of more accurately-reflecting the actual cost of the project. Obviously, the court’s goal was to achieve a result that was fair and equitable to both sides, and we believe that it succeeded. We find that the trial court’s decision was not against the manifest weight of the evidence.

For the reasons stated above, the judgment of the circuit court is affirmed in all respects.

Affirmed.

BARRY and LYTTON, JJ., concur.


source: Caselaw Access Project

author: JUSTICE STOUDER

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LESTER McDONALD, Defendant-Appellant.
    Third District
    No. 3—92—0120
    Opinion filed August 20, 1993.

      Joseph N. Ehmann, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Edward Burmila, Jr., State’s Attorney, of Joliet (John X. Breslin and Rita Kennedy Mertel, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE STOUDER

delivered the opinion of the court:

The defendant, Lester McDonald, was found guilty of armed robbery and sentenced to six years of imprisonment. He appeals, and we affirm.

On appeal, the defendant argues that his rights were violated when the prosecutor exercised peremptory challenges to exclude one African-American, Jenny Dunham, and one Hispanic, Noel Guzman, from serving on his jury. Specifically, he alleges that the trial court’s decision should be reversed and the cause remanded for a new trial because the reasons given by the prosecutor for excusing Dunham were racially motivated. In the alternative, he contends that the case should be remanded for the prosecutor to state her reasons for excusing Guzman because the defendant had established a prima facie case of discrimination.

In the interest of clarity, we will set forth the facts necessary for an understanding of each issue as we address it. Regarding the prosecutor’s use of a peremptory challenge to exclude Dunham, the record shows that there were only two African-Americans in the jury pool from which the jury was selected. One was Edna Jones, whom the trial court excused because Jones knew the defendant’s mother, and the other was Dunham. The record also shows that the defendant is an African-American.

The defendant objected to the prosecutor’s exclusion of Dunham, arguing that the prosecutor’s decision was based upon race. The trial court then asked the prosecutor to set forth her reasons for excluding Dunham from the jury. The prosecutor explained that Dunham was removed because she had been a victim of a purse snatching 20 years earlier, was an older divorced woman, was a member of the NAACP, had a master’s degree, was 15 minutes late for voir dire, and gave sarcastic answers. Following this explanation, the court concluded that the prosecutor’s dissatisfaction with Dunham’s demeanor met the neutral-basis requirement for excluding venirepersons. Accordingly, the court denied the defendant’s motion.

The record also shows that the defendant’s conviction was based solely on the victim’s identification of him. The victim described the defendant to the police, selected the defendant’s picture from a photographic lineup, and identified him at trial. The victim described the defendant as being 6 feet 1 inch tall, weighing 183 pounds, and having a pockmarked face and dark complexion. However, the defendant was actually only 5 feet 6 inches tall, weighed only 116 pounds, was not pockmarked, and had a medium complexion.

On appeal, the defendant first argues that the reasons given by the prosecutor were not race-neutral. He alleges that Dunham shared the same traits and experiences with a number of Caucasian jurors who were not excused. As such, he contends he established that the prosecutor had engaged in purposeful discrimination.

Once a defendant makes a prima facie showing of discrimination, the burden shifts to the State to rebut the defendant’s prima facie case by coming forward with race-neutral explanations for challenging the venireperson allegedly excluded because of his or her race. The trial court must then consider those explanations and determine if the defendant has established purposeful discrimination. (Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712.) The prosecutor’s explanation must demonstrate that the excluded veniremember exhibited a specific bias related to the particular cause to be tried. People v. Andrews (1993), 155 Ill. 2d 286, 614 N.E.2d 1184.

A peremptory challenge is usually based on a combination of traits and, as such, a particular trait that might justify exclusion of one juror could be acceptable in another juror with a different combination of traits. (People v. Mack (1989), 128 Ill. 2d 231, 538 N.E.2d 1107.) We also note that a trial judge’s finding as to whether a prosecutor purposefully discriminated against veniremembers will not be disturbed on review unless the reviewing court determines that the judge’s finding was clearly erroneous. In addition, when a prosecutor gives more than one reason for having excused a particular veniremember, the reviewing court need only accept one of the reasons. People v. Andrews (1993), 155 Ill. 2d 286, 614 N.E.2d 1184.

In the case at hand, the prosecutor first stated that she excused Dunham because both Dunham and the victim had been the victims of a similar type of crime, i.e., a mugging type of armed robbery that occurred quickly. As such, the prosecutor was concerned that Dunham would not give the instant victim credibility regarding his ability to identify the defendant. On appeal, we find this explanation to be race-neutral since it established a reasonable and specific bias related to the instant cause of action.

We also note that several Caucasians were allowed to serve as jurors even though they exhibited some of the same traits as Dunham. However, all of the accepted members had different combinations of traits than Dunham. More importantly, a Caucasian woman who shared the most traits in common with Dunham was also peremptorily excused by the prosecutor. That woman, who is identified in the record as Mrs. Dryer, was possibly an older woman who had a master’s degree in administration and a certificate in education. In addition, although she was not present on either occasion, she had a purse stolen twice. As noted above, Dunham was an older woman with a master’s degree in health education and had been the victim of a purse snatching. Tims, the fact that the prosecutor excluded both jurors supported the conclusion that her reason for excluding Dunham was race-neutral.

We now turn to the defendant’s contention that this cause should be remanded for a hearing to determine the prosecutor’s reasons for excluding Guzman. Specifically, the defendant alleges that he set forth a prima facie showing of discrimination and, as such, is entitled to such a hearing.

Here, the record shows that the defendant did not object to the prosecutor’s dismissal of Guzman during voir dire. He first objected to Guzman’s dismissal during the hearing on his motion to dismiss the jury for the exclusion of Dunham. At that time, he made the following statements:

“And also, Judge, I think I ought to add in the fact that the State has exclude[d] Mr. Guzman, who is a minority.
These people have been excluded, Judge. And [the] only reason they have been excluded, particularly for Mrs. Dunham, is because of her race.
I am not sure that I have that strong of argument with Mr. Guzman, but Mr. Guzman was of Spanish descent.
Judge, all the rest of the people that were involved in the venire were — well, involved in the voir dire were Caucasian.
* * *
As I said before, Judge, the only argument we have as far as Mr. Guzman is only because of the fact he’s a minority. And that argument is not as strong, of course, as it is for Mrs. Dun-ham.”

The record also shows that the defendant used a peremptory challenge to exclude Aspasia Nelson from serving on the jury. During the hearing on the motion to dismiss the jury, the trial judge stated that he believed Nelson may have been Hispanic because of her name and features. However, he could not be certain since neither attorney requested that the panel be questioned during voir dire as to their ethnic heritage. Finally, the record indicates that the trial judge did not require the prosecutor to state her reasons for excusing Guzman because the defendant and Guzman were not members of the same race.

Assuming, arguendo, that the judge erred by denying the defendant’s objection solely because Guzman was not African-American, we are not precluded from reviewing the record to determine whether the defendant made a prima facie case. (People v. Pasch (1992), 152 Ill. 2d 133, 604 N.E.2d 294.) Moreover, resolution of a claim that the prosecution used its peremptory challenges in a racially discriminatory manner requires the defendant to first establish a prima facie case of purposeful discrimination in the selection of the jury. (Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712.) Although it is true that a prima facie case can be established where the State excludes the only venireperson of a certain race, it is not unconstitutional, without more, to strike one or more individuals of a certain race from the jury. Finally, we note that although racial identity between the defendant and the excluded venireperson is not required, it still remains a relevant factor in determining if a prima facie case of discrimination has been established. People v. Pasch (1992), 152 Ill. 2d 133, 604 N.E.2d 294.

In the case at hand, we find that, except for citing the ethnic origin of Guzman, the defendant has pointed to no circumstances that could support a prima facie case of racially motivated discrimination. We first note that the defendant and Guzman do not share the same racial identity. In addition, we note that apparently not all of the Hispanics in the jury pool were excluded by the prosecutor. As the record shows, the defendant excused Nelson, who the trial judge believed may have been Hispanic. Finally, we note that the defendant himself acknowledged that the only evidence he had of racial discrimination with respect to Guzman was the fact that Guzman was a member of a minority.

On review of the record, we do not feel that any circumstances were revealed which raised a prima facie inference of State discrimination. We therefore find that the defendant has not met his burden to prove through relevant circumstances that the prosecutor’s exercise of her peremptory challenge was racially motivated. Consequently, the State was not required to provide race-neutral explanations for this challenge.

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

Affirmed.

SLATER and LYTTON, JJ., concur.


text:
    JOHN DOE, a Minor, by his Mother and Natural Guardian, Jane Roe, Plaintiffs-Appellees, v. SUPREME LODGE OF THE LOYAL ORDER OF MOOSE et al., Defendants (Moose International, Inc., Defendant-Appellant).
    Third District
    No. 3-92-0997
    Opinion filed August 18, 1993.

      John C. Bartier, of McKenna, Storer, Rowe, White & Farrug, of Wheaton (John P. McTigue, of counsel), for appellant.
    James C. Byrne, of Joliet, for appellees.
   JUSTICE STOUDER

delivered the opinion of the court:

The plaintiff, a minor, by his mother and guardian, proceeding under the pseudonyms John Doe and Jane Roe, respectively, brought a civil action against the defendants, Ronald Pierce, Jeffery Taylor and Moose International, Inc. (Moose), for damages arising out of the alleged sexual abuse of John Doe while he resided at Mooseheart, “The Child City.” The complaint was subsequently amended to add as a defendant the Supreme Lodge of the Loyal Order of Moose (the Supreme Lodge). Moose appeals from the trial court’s denial of its motion to dismiss for improper venue and, in the alternative, to transfer the cause based on the doctrine of forum non conveniens. We affirm the trial court’s decision to deny the motion.

The original complaint was filed in Will County on April 1, 1992. The complaint alleged generally, that from January 1989 to March 1991, Doe was a resident of Mooseheart, a facility owned and operated by Moose and located in Kane County. The complaint alleged certain tortious conduct on the part of the individual defendants and Moose. As to Moose, the complaint alleged Moose was negligent in not protecting Doe from the sexual misconduct engaged in by the individual defendants. The complaint also alleged negligent supervision on the part of Moose.

On May 4, 1992, Moose filed a motion to dismiss the Will County complaint based on improper venue or, in the alternative, to have the action transferred to Kane County based on forum non conveniens. Prior to the hearing on the motion, the plaintiff filed an amended complaint, adding the Supreme Lodge as a defendant. The amended complaint restated generally the same allegations against the individual defendants and Moose. However, the amended complaint asserted that legal title to Mooseheart was in the name of the defendant, Moose, while the facility was “operated, controlled and supervised” by the Supreme Lodge. New count III alleged breach of contract on the part of the Supreme Lodge. Count III asserted Doe was a third-party beneficiary to a contract entered into between the Supreme Lodge and Doe’s maternal grandfather, who was guardian and had custody of Doe at the time the contract was entered into. Count III alleged the contract was entered into at Plainfield in Will County. Count III alleged the contract was entered into for the benefit of Doe, and that therein the Supreme Lodge agreed and promised to provide for all of Doe’s child-care needs while he was a resident of Mooseheart.

Moose International, Inc., is an Indiana corporation with its principal office located at the Mooseheart facility in Kane County. The Supreme Lodge is an unincorporated association.

On November 17, 1992, the trial court held a hearing on Moose’s motion, which the court denied without comment on November 20, 1992. We allowed Moose’s petition for leave to appeal brought pursuant to Supreme Court Rule 306 (134 Ill. 2d R. 306). The record on appeal consists of a copy of the pleadings with attached affidavits and memorandum, which were included with the petition.

On appeal, Moose contends the trial court erred in denying its motion to dismiss for improper venue, because it is not “doing business” in Will County for purposes of venue as required by section 2 — 101 of the Code of Civil Procedure (the Code) (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 101). In addition, Moose maintains the signing of the contract between the Supreme Lodge and Doe’s grandfather in Will County is not sufficient to fix venue under section 2— 101. Moose further contends the contract claim was not filed in good faith and was brought solely in an attempt to fix venue in Will County.

Section 2 — 101 states in pertinent part: “Except as otherwise provided in this Act, every action must be commenced (1) in the county of residence of any defendant who is joined in good faith and with probable cause for the purpose of obtaining a judgment against him or her and not solely for the purpose of fixing venue in that county, or (2) in the county in which the transaction or some part thereof occurred out of which the cause of action arose.” (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 101.) Section 2 — 102(a) provides in pertinent part: “[A]ny foreign corporation authorized to transact business is this State is a resident of any county in which it has its registered office or other office or is doing business.” Ill. Rev. Stat. 1991, ch. 110, par. 2 — 102(a).

The Illinois venue statute is designed to insure that the action will be brought either in a location convenient to the defendant, by providing for venue in the county of residence, or convenient to potential witnesses, by allowing for venue where the cause of action arose. (Baltimore & Ohio R.R. Co. v. Mosele (1977), 67 Ill. 2d 321, 368 N.E.2d 88.) Venue may properly lie in more than one jurisdiction. (Patel v. Lacey (1990), 203 Ill. App. 3d 1048, 561 N.E.2d 455.) As the movant, the defendant has the burden of proving that the plaintiff’s selection of venue was improper. (Weaver v. Midwest Towing, Inc. (1987), 116 Ill. 2d 279, 507 N.E.2d 838.) It is well settled that under the “transactional venue” arm of section 2 — 101, the place where a contract is signed and executed is the proper forum for litigation concerning a breach of contract claim. Servicemaster Co. v. Mary Thompson Hospital (1988), 177 Ill. App. 3d 885, 532 N.E.2d 1009; Curt Bullock Builders, Inc. v. H.S.S. Development, Inc. (1992), 225 Ill. App. 3d 9, 586 N.E.2d 1284.

Thus, in the instant case, venue properly lies in Will County under the “transactional venue” provision of section 2 — 101 of the Code because the agreement by Mooseheart to provide residential care for Doe was entered into in Will County. Because transactional venue exists in this case, we need not address the parties’ argument on whether Moose and/or the Supreme Lodge was “doing business” in Will County to the extent that they would be considered residents of the county for purposes of venue.

However, Moose counters that the contract claim was not brought in good faith. Moose asserts venue did not lie in Will County under the allegations in the original complaint. Only after Moose had filed its motion to dismiss did the plaintiff amend the complaint to add the Supreme Lodge and the breach of contract claim. Moose contends this action was nothing more than an attempt to fix venue in Will County.

After reviewing the case law on good faith in this context (see, e.g., Green v. Unity Container Corp. (1955), 7 Ill. App. 2d 215, 129 N.E.2d 458; Novak v. Thies (1980), 89 Ill. App. 3d 991, 412 N.E.2d 666; McKenzie v. Romeiser (1990), 205 Ill. App. 3d 830, 563 N.E.2d 837), we find the record presented here fails to show that the plaintiff’s contract claim was not brought in good faith. Besides, we note the “good faith” and “probable cause” requirements are found in what we might term the “residential venue” arm of section 2 — 101. Since we find no lack of good faith in this case, we need not address the applicability of the good-faith requirement to the “transactional” arm of the venue statute.

Moose also contends the trial court abused its discretion in denying its motion to transfer the cause to Kane County based on the doctrine of forum non conveniens.

The doctrine of forum non conveniens allows the court in which the action was filed to decline jurisdiction and direct the lawsuit to an alternative forum which the court determines can better serve the convenience of the parties and the ends of justice. (Washington v. Illinois Power Co. (1991), 144 Ill. 2d 395, 581 N.E.2d 644.) A trial court is vested with broad discretion in balancing the various considerations relevant to a ruling on a forum non conveniens motion, and its decision will be reversed only if it represents an abuse of discretion. McClain v. Illinois Central Gulf R.R. Co. (1988), 121 Ill. 2d 278, 520 N.E.2d 368.

Before granting a forum non conveniens motion, a trial court must weigh a variety of factors and conclude that the balance strongly favors the defendant. (Certain Underwriters at Lloyd’s, London v. Bertrand Goldberg Associates, Inc. (1992), 238 Ill. App. 3d 692, 606 N.E.2d 541.) Factors relating to the private interests of the litigants include the relative ease of access to sources of proof; the availability of compulsory process for attendance of unwilling witnesses and the cost of obtaining the attendance of willing witnesses; the possibility of viewing the premises, if viewing would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive. (Washington v. Illinois Power Co. (1991), 144 Ill. 2d 395, 581 N.E.2d 644.) Public interest factors include administrative concerns, such as the relative congestion of court dockets, the inappropriateness of imposing jury duty upon residents of a county which has no connection to the litigation, and an interest in having a localized controversy handled locally. (Grachen v. Zarecki (1990), 200 Ill. App. 3d 336, 558 N.E.2d 132.) An important consideration under the forum non conveniens doctrine is that if the chosen forum is the plaintiff’s home forum, that choice will be given substantial deference; otherwise, the deference to the plaintiff’s choice is considerably lessened. (McClain v. Illinois Central Gulf R.R. Co. (1988), 121 Ill. 2d 278, 520 N.E.2d 368.) The test is whether the relevant factors, viewed in their totality, strongly favor transfer to the forum suggested by the defendant. Bates v. Wilbur (1993), 245 Ill. App. 3d 377, 613 N.E.2d 388.

In the instant case, neither the minor plaintiff nor his mother resides in Will County. In fact, it now appears they reside in Tennessee. Therefore, the deference generally granted the plaintiff in choosing his home forum is not present in this case. However, even with this fact acknowledged, we do not find the trial court abused its discretion in denying the motion. Kane and Will Counties are contiguous. Both sides claim they have witnesses in either Kane or Will County, with very little in the way of specifics. Moose also points to the fact that the investigating agencies are located in Kane County and that Kane County was the site of most of the alleged incidents of abuse. Moose argues viewing the Moose-heart premises would be more accessible to a Kane County jury. On the other hand, Moose presented no evidence on the status of the dockets in either county. In addition, Moose’s arguments are for the most part rather general. Viewing the totality of the circumstances, we find the facts of this case do not strongly favor transfer to the neighboring county of Kane.

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

Affirmed.

SLATER and LYTTON, JJ., concur.


author: JUSTICE LYTTON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. GEORGE HINTON, Defendant-Appellee.
    Third District
    No. 3-92-0792
    Opinion filed August 19, 1993.
    James Glasgow, State’s Attorney, of Joliet (John X. Breslin and Lawrence Michael Kaschak, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Mason, Orloff, Reich, Troy & Thanas, of Joliet (Richard B. Orloff, of counsel), for appellee.
   JUSTICE LYTTON

delivered the opinion of the court:

The defendant was charged in a two-count indictment with the offenses of unlawful possession of a controlled substance and armed violence. The defendant filed a motion to suppress evidence, and the trial judge granted the motion. Thereafter, the State filed this appeal. We affirm.

On December 7, 1989, the defendant was charged with the offenses of unlawful possession of a controlled substance (cocaine). The defendant was also charged with armed violence, in that he had a .22-caliber revolver at the time that he possessed the controlled substance. On May 22, 1990, the defendant filed a motion to suppress. The motion alleged (a) at approximately 3:30 a.m. on December 7, 1989, Joliet police officer Michael Trafton entered the defendant’s car while it sat in a Pizza Hut parking lot with the defendant sleeping therein, (b) entrance of the vehicle was without the defendant’s authorization and without a search warrant, (c) at the time of the entry, there existed no outstanding arrest warrants for the defendant, (d) at the time of the entry, the officer did not possess reasonable grounds to believe that the defendant had any contraband or illegal substance, (e) after the officer approached the defendant and awoke him, the officer ordered the defendant out of the vehicle, at which time the officer viewed a weapon under the seat, and (f) further search of the vehicle resulted in the officer’s finding the alleged cocaine.

A hearing was conducted on defendant’s motion to suppress on October 5, 1992. The defendant testified that, upon his separation from the Navy, he began to work at the Pizza Hut on West Jefferson Street in Joliet, Hlinois. In December of 1989, he was a shift manager responsible for opening and preparing the restaurant. On December 7, 1989, someone else had the defendant’s keys to the restaurant, but another worker was supposed to arrive at 7 a.m. Several hours before, at approximately 3:30 a.m., the defendant’s car was parked in front of the Pizza Hut door, and the defendant was asleep inside. The defendant testified that he had been up late and didn’t want to take a chance of going to sleep and not being there to open the store and take care of his responsibilities.

The defendant was positioned in the front driver’s seat, with the seat slightly reclined. His car was a four-door vehicle, and the side and rear windows were tinted.

The first thing the defendant recalls was hearing his door open and cold air coming in and waking him up. He looked to see who was at his door and heard a voice telling him to get out of the car. It was a Joliet police officer. The defendant asked why the officer wanted him out of the car, and he was again told to get out of the car.

As the defendant got out of the car, the officer grabbed him by one arm and pushed him toward another police officer who was near the front of the vehicle. The first policeman then went back and started looking through the defendant’s car. After a couple of minutes, the officer came back and said that he had found a gun. The officer then told the other policeman to handcuff the defendant and put him in the police car.

The defendant stated that, at the time he was awakened, the gun was under his driver’s seat. The weapon was not visible.The defendant also testified that, while seated in the car a person could see out, but a person outside the car could not see in because of the tinted windows.

Joliet police officer James Stoddard testified that, at approximately 3:30 a.m., on December 7, 1989, he received a radio dispatch from Officer Trafton, who said that he needed help with a suspicious vehicle. Stoddard responded as a backup unit. When Stoddard arrived, Trafton told him that he was going to check out this vehicle and that there was a weapon in plain sight in the console of the vehicle. Stoddard couldn’t recall whether the defendant was already outside of the vehicle and whether the defendant was already in handcuffs when Stoddard arrived. Eventually, Officer Trafton turned over the gun to Stoddard, who also transported Hinton to the police station.

Officer Jeff Allbert testified that, on November 25, 1991, he issued a citation against the defendant, because the side and rear windows of the defendant’s vehicle were tinted very dark. Similarly, Officer James Reilly testified that, on February 21, 1991, he made a traffic stop of the defendant’s vehicle because the tinting of the car’s windows was darker than usual. To alleviate the need for other officers’ testimony, the parties stipulated that other policemen would testify that other citations were issued on various dates for obstructed view because the dark tinting of the vehicle’s windows. The defendant received four such citations.

The prosecution called Joliet police officer Michael Trafton as a witness. Trafton testified that, on December 7, 1989, he was working the midnight shift. He noticed a car parked in the Pizza Hut parking lot, with the engine running but the lights off. Trafton radioed that he was going to be checking out the vehicle. Thereafter, he walked up to the car and noticed that the driver was asleep. Utilizing his flashlight, Trafton looked inside the vehicle. The officer testified that he observed a handgun, silver or chrome with black handles, between the driver’s feet. The officer called for assistance and waited for another unit to arrive.

Trafton stated that he woke the driver by pounding on the door and window. He asked the driver to step out of the vehicle with his hands in the air. The driver exited the vehicle and was taken into custody. When asked who took the driver into custody, Trafton testified, “I don’t recall if it was myself or Officer Stoddard, or both simultaneously. I really cannot remember.” After the defendant was in custody, Trafton reached down and took the gun out of the car. He handed the gun to Stoddard. While Trafton inventoried the rest of the vehicle, Stoddard transported the prisoner.

Trafton did not observe anything unusual about the Pizza Hut. He didn’t see any doors askew or anything that would indicate that anyone was inside the restaurant. It was not until the officer came up to the vehicle and shined his flashlight inside that he observed the gun.

Prior to investigating the vehicle, Trafton radioed the police station that he observed a vehicle running in a parking lot, and that he was going to investigate for possible burglary or other suspicious circumstances. The radio transmission did not indicate that there was a man in a car with a gun.

When asked what purpose he had for shining the light into the vehicle, Trafton responded, “for my own safety.” Trafton said that he probably could not tell that the driver was sleeping until he shined his flashlight at the person. Trafton denied that, upon seeing the sleeping driver, he opened the door and told the individual to get out. Trafton also denied that he first saw the gun after the driver was outside the vehicle.

After hearing the arguments of counsel, the trial judge found that Officer Trafton approached the vehicle, which he considered to be suspicious, under circumstances that could have related to a possible burglary. Trafton shined his flashlight through the tinted windows of the vehicle and observed the defendant sleeping. From the totality of the circumstances, the trial judge found Trafton had no probable cause to further investigate the defendant sleeping in his parked automobile. The judge also found that no justification existed for the police to be concerned about the defendant because of concern for community caretaking functions or public safety functions. Accordingly, the trial judge granted the defendant’s motion to suppress the weapon and contraband. The State appealed.

On appeal, this court will not set aside a trial court’s disposition of a motion to suppress unless the decision is manifestly erroneous. (People v. Trice (1991), 217 Ill. App. 3d 967, 974, 577 N.E.2d 1195.) As the Illinois Supreme Court discussed in People v. Murray (1990), 137 Ill. 2d 382, 387-88, 560 N.E.2d 309, there are three theoretical tiers of police-citizen encounters. The first tier involves an arrest of a citizen, supported by probable cause, without which the fourth amendment prohibition against unreasonable seizures is violated. (Henry v. United States (1959), 361 U.S. 98, 4 L. Ed. 2d 134, 80 S. Ct. 168.) The next tier involves the so-called “Terry” stop, a brief seizure that must be supported by reasonable suspicion of criminal activity to be within acceptable fourth amendment boundaries. (Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 899, 88 S. Ct. 1868.) The last tier is commonly known as the community caretaking function or public safety function. This tier involves no coercion or detention and therefore does not involve a seizure. “Local police officers *** frequently investigate vehicle accidents in which there is no claim of criminal liability and engage in what, for want of a better term, may be described as community caretaking functions ***” Cady v. Dombrowski (1973), 413 U.S. 433, 441, 37 L. Ed. 2d 706, 714-15, 93 S. Ct. 2523, 2528.

In Murray, two police officers observed the defendant asleep in a car parked on the side of a road. The officers awoke the defendant by tapping on the window, asked him to produce a driver’s license, and requested that he exit the car. After the defendant exited the car, the police confiscated a gun which was seen in plain view. The defendant was subsequently charged and convicted for the offense of unlawful use of a weapon by a felon.

In reviewing Murray’s conviction, the Illinois Supreme Court held that the defendant’s fourth amendment rights were not violated trader the facts presented in that case. The supreme court found that there was no use of physical force or show of authority which would justify finding that a seizure had occurred. Under these circumstances, the supreme court held, “it is clear that approaching the vehicle and waking the defendant by tapping on the window was not a seizure.” Murray, 137 Ill. 2d at 392.

The situation presented in this case is distinct from that in Murray. Here, the trial judge ruled that Officer Trafton was not acting pursuant to community caretaking functions. Trafton’s police report stated, and the trial judge found, that Trafton was acting in furtherance of an investigation for a possible burglary or other suspicious circumstances. The community caretaking function is “ ‘totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.’ ” (Murray, 137 Ill. 2d at 388, quoting Cady v. Dombrowski, 413 U.S. at 441, 37 L. Ed. 2d at 714-15, 93 S. Ct. at 2528.) The officer told the defendant to get out of the car. When the defendant asked why, the defendant was again told to get out of the car. As our supreme court stated, “The encounter may be characterized as a seizure if the officer orders, rather than requests, that the occupant open the door or exit the car.” Murray, 137 Ill. 2d at 393.

In this case, the trial court was left with the determination of whether the officer’s conduct could be justified as either an arrest supported by probable cause or as a so-called “Terry” investigative stop. In making this determination, the trial judge was presented with conflicting testimony. Officer Trafton testified that while the defendant slept, he shined his flashlight into the car and saw the gun. However, the defendant testified that the gun was under his driver’s seat and was not visible. According to the defendant, only after he exited the car did Trafton search the car’s interior and discover the gun. Unfortunately, in announcing his decision, the trial judge failed to enunciate specific findings regarding these conflicts and questions of credibility.

An order or judgment granting or denying a motion to suppress should state the findings of fact and conclusions of law upon which the order or judgment is based. (Ill. Rev. Stat. 1991, ch. 38, par. 114 — 12(e).) This requirement serves the salutary purpose of enlightening the appellate court as to the evidence and reasoning relied upon below and thereby facilitates review. (People v. Bury (1990), 199 Ill. App. 3d 207, 209-10, 556 N.E.2d 899.) While we find that the present order is deficient, we need not remand this case for compliance. The absence of sufficient findings of fact and conclusions of law does not require reversal if the evidence would sustain the ruling of the trial court. People v. Schuldt (1991), 217 Ill. App. 3d 534, 539, 577 N.E.2d 870.

As noted above, this court will not set aside a trial judge’s disposition of a motion to suppress unless such a decision is manifestly erroneous. (People v. Trice, 217 Ill. App. 3d at 974.) Here, the defendant testified that, as he slept, the gun was not visible. Nonetheless, the police officer opened the car door and twice told the defendant to get out. According to the defendant, he was then grabbed and pushed toward another police officer. Only then did the arresting officer search his car and discover the gun and contraband. This testimony, if believed by the trial judge, would justify suppression on the grounds that the defendant’s fourth amendment rights had been violated. Based on the record presented to this court, we cannot say that the decision below was manifestly erroneous. Accordingly, we affirm the trial judge’s decision.

It is the appellant’s responsibility to provide “a sufficiently complete record on appeal so that the reviewing court is fully informed regarding the issues to be resolved; in the absence of a complete record on appeal, it is presumed that the trial court’s judgment conforms to the law and has a sufficient factual basis. [Citations.] Any doubt arising from the incompleteness of the record will be resolved against the appellant.” (People v. Odumuyiwa (1989), 188 Ill. App. 3d 40, 45-46, 544 N.E.2d 405.) Prior to the filing of the notice of appeal, a simple motion by the nonprevailing party, seeking additional detailed findings of fact and conclusions of law, would have facilitated appellate review and perhaps focused the grounds upon which this court could review the decision below.

For the reasons stated above, the decision of the circuit court of Will County is affirmed.

Affirmed.

BARRY and STOUDER, JJ., concur.


author: JUSTICE BARRY

text:
    HAROLD T. WELSH, Plaintiff-Appellant, v. COMMONWEALTH CREDIT UNION, Defendant-Appellee.
    Third District
    No. 3-92-0855
    Opinion filed August 10, 1993.

      Lawrence G. Gallagher, of D’Ancona & Pflaum, of Chicago (Jeffrey H. Bergman, of counsel), for appellant.
    Blanke, Norden, Barmann, Kramer & Bohlen, P.C., of Kankakee (Christopher W. Bohlen, of counsel), for appellee.
   JUSTICE BARRY

delivered the opinion of the court:

Harold T. Welsh, plaintiff, appeals from summary judgment in favor of defendant Commonwealth Credit Union (CCU) in his suit to recover damages for breach of his employment contract. Welsh contends that CCU breached his contract by reducing his salary in April of 1989, by terminating his employment in January of 1990 without cause, and by terminating his employment by less than three-fourths vote of the members of the board of directors. We reverse.

Welsh was first employed as president of CCU in January of 1968. In October of 1971 the board of directors of CCU adopted a policy which provided that the board may terminate the employment of the president only with three-fourths of the board voting in favor of termination. According to Welsh’s affidavit, he was present at the meeting when this policy was adopted, and he was later given a personal copy of the policy by the board. At the time this policy was adopted, Welsh was employed under a three-year contract which began January 26, 1971, and the policy was published annually thereafter in the policy manual of CCU.

In 1974 CCU and Welsh entered into a new three-year contract which provided that Welsh would receive a minimum salary of $24,000 per year. Paragraph 5 also provided:

“This contract may be and shall be automatically renewed without the necessity of redrawing the contract for successive one year periods after the 26th day of January, 1977. However, the terms of this contract shall be reviewed at least annually to determine adequacy or inadequacy under prevailing economic conditions and salary increases or additional fringe benefits may be validly granted to the Employee by the Corporation’s Board of Directors at any time provided that such increases or additional benefits be shown in the minutes of a regular or special meeting of the Board of Directors.”

Paragraph 8 of the contract contained the following:

“This employment agreement cannot be terminated by the Corporation except for Employee’s (a) fraud or criminal act in the performance of his duties; (b) breach of his agreement to devote full time to the corporation’s business during its open hours; (c) acts or conduct of a nature substantially detrimental to the reputation and conduct of the corporation’s business; (d) mental or physical incapability to normally and capably carry out his duties as determined by a competent licensed medical doctor. If this contract be terminated for any such reasons, such termination shall be effective only with five (5) business days prior written notice to the Employee of the effective date. On termination for any such cause, the Employee shall be entitled to all accrued vacation pay; and if such termination is pursuant to parts ‘c’ or ‘d,’ an additional sixty (60) days salary or salary to the end of the then contract term, whichever is the lesser, shall be paid.”

Welsh received annual salary increases until 1988, by which time he was earning $91,730 per year. His salary was not increased for 1988 or 1989, and at a special meeting of the board of directors on April 24, 1989, the board approved a recommendation of its wage and salary committee that Welsh’s salary be reduced to $60,000 per year, effective May 1, 1989. The board also approved an incentive plan that would entitle Welsh to a maximum incentive compensation equal to 20% of his base salary ($12,000) if he met certain specified goals relating to capital and asset growth, delinquency, solvency and loan growth.

On September 11, 1989, the board of directors of CCU met to consider Welsh’s employment contract. Nine members were present. Five voted in favor of a motion not to renew the contract. The motion also included giving Welsh an opportunity to resign and offering severance pay. Three members voted against the motion, and one abstained. The minutes of the meeting set forth specific reasons for non-renewal, including inability of the Board and management to work together, failure to solve problems identified in a 1987 review by the National Credit Union Administration, and a reference to section 8(c) of Welsh’s contract.

In a letter from the chairperson of the board of directors dated October 27, 1989, Welsh was advised that the board had “approved a motion to not renew your employment contract as Manager for the year beginning January 26, 1990.” The letter stated that Welsh had been asked to resign and had not done so. The termination letter also stated:

“The contract is being terminated in accordance with Section 8, Letter C, ‘acts or conduct of a nature substantially detrimental to the reputation and conduct of the corporation’s business.’
Your employment contract will be terminated on January 26, 1990; however, your actual employment will cease at the end of the work day, November 24, 1989. You will receive 60 days additional salary, as stipulated in Section 8 of the contract.”

Welsh’s first amended complaint alleges in count I that the reduction of his salary to $60,000 was a breach of paragraph 5 of his employment contract, in count II that termination was without cause in violation of paragraph 8 of the contract, and in count III that termination was by less than three-fourths vote in violation of the “Termination Policy” adopted by the board. Not involved in this appeal was count IV, relating to unpaid vacation time. The court’s decision is recorded in the following docket entry:

“As to Count I, the contract that the plaintiff sues on allows the defendant to terminate it so there can be no breach by defendant when it did what the contract allowed. In Count II, the plaintiff claims a contract for life. The agreement by its terms clearly implies that [it] can be terminated without cause at the end of any one-year term. As to Count III, the provisions of the contract are binding as opposed to the policy manual. The court finds no questions of fact to be decided. As a matter of law, judgment should be entered in favor of the defendant and against the plaintiff on Counts I, II and III.”

Although summary judgment is to be encouraged in the interest of prompt disposition of litigation, the right to summary judgment must be clear beyond question, and the reviewing court must reverse an order granting summary judgment if there exists a question of material fact or if the judgment for the movant was incorrect as a matter of law. (Town of Avon v. Geary (1991), 223 Ill. App. 3d 294, 585 N.E.2d 194.) Thus, the granting of a motion for summary judgment is not discretionary, and the proper standard of review is de novo. (Town of Avon v. Geary, 223 Ill. App. 3d 294, 585 N.E.2d 194.) Furthermore, the court must construe the pleadings, depositions, affidavits, and admissions strictly against the movant and liberally in favor of the opponent. Mitchell v. Jewel Food Stores (1991), 142 Ill. 2d 152, 568 N.E.2d 827.

First, we consider Welsh’s contention that the trial court erred in ruling that the contract allowed CCU to terminate his employment without cause at the end of any one-year term and that no breach of contract was involved when CCU did what the contract allowed. Obviously, the trial court adopted the view advanced by CCU that the board of directors voted not to renew Welsh’s contract after its annual expiration on January 26, 1990, and that under paragraph 5 of the employment contract, nonrenewal without cause was permissible.

When confronted with a dispute over contract interpretation in the context of a summary judgment order, this court has said:

“Construing the language employed in a contract is a matter of law appropriate for summary judgment [citations], unless the contract is ambiguous [citations]. *** A contract is ambiguous if it is reasonably susceptible to more than one meaning [citation], but an ambiguity is not created merely because the parties disagree [citations].” People ex rel. Burris v. Memorial Consultants, Inc. (1992), 224 Ill. App. 3d 653, 656, 587 N.E.2d 34.

CCU’s interpretation ignores the inherent ambiguity contained in paragraph 5: “This contract may be and shall be automatically renewed *** for successive one year periods.” The ambiguity arises because “may” is considered permissive while “shall” is mandatory when interpreting private contracts. (Professional Executive Center v. La Salle National Bank (1991), 211 Ill. App. 3d 368, 379, 570 N.E.2d 366, 373.) None of the language in a contract can be ignored as mere surplusage. (In re Schwass (1984), 126 Ill. App. 3d 512, 467 N.E.2d 957.) The quoted language can be reasonably interpreted to mean that Welsh’s employment contract shall be renewed annually as long as no cause for termination exists as defined in paragraph 8. Another reasonable interpretation would be that the contract may be renewed unless the CCU elects to review any of the terms of the contract, including duration and compensation. Obviously these two interpretations are contradictory. Hence, we are convinced that paragraph 5 is ambiguous and that summary judgment on count II was not proper. By so ruling, we are not deciding that Welsh could have a “contract for life” since, under either reasonable interpretation, conditions could exist which would result in nonrenewal.

In addition, the trial court erred in ruling that there are no questions of fact. The most obvious factual question is whether the board intended to terminate Welsh’s contract for cause under paragraph 8(c) or whether the board intended to give notice of nonrenewal of his contract. Both the board minutes and the letter from the board chairperson to Welsh make reference to both nonrenewal and to termination pursuant to paragraph 8(c). The notification letter states that Welsh’s employment will not be renewed beginning January 26, 1990, thus indicating that the board was acting under paragraph 5, but the letter also states that his “actual employment” will cease on November 24, 1989, and that he will receive 60 days’ additional salary as provided in paragraph 8. These conflicting statements present a factual issue which also renders summary judgment on count II erroneous.

Welsh also contends that the trial court erred in ruling that the termination policy contained in the corporation’s policy manual was not enforceable and, therefore, that Welsh’s employment could be terminated by vote of less than three-fourths of the members of the board, as was the case here. We agree with Welsh that the controlling decision is Duldulao v. St. Mary of Nazareth Hospital Center (1987), 115 Ill. 2d 482, 490, 505 N.E.2d 314, 318, where the supreme court clearly stated the circumstances under which an employer’s policy statement creates enforceable contractual rights in the employee:

“First, the language of the policy statement must contain a promise clear enough that an employee would reasonably believe that an offer has been made. Second, the statement must be disseminated to the employee in such a manner that the employee is aware of its contents and reasonably believes it to be an offer. Third, the employee must accept the offer by commencing or continuing to work after learning of the policy statement. When these conditions are present, then the employee’s continued work constitutes consideration for the promises contained in the statement, and under traditional principles a valid contract is formed.”

In the case before us, CCU has not disputed Welsh’s affidavit stating that the board of directors gave him a written copy of the termination policy several days after it was adopted, and that it was published annually in the section of the CCU policy manual titled “Personnel Policies.” This policy applied only to the president of the corporation and contained a clear promise that his employment would be terminated only with three-fourths of the board of directors voting in favor of termination. His continued work constituted consideration for the promise contained in the policy, and a valid contract exists. Where the express promise is contained in an individually negotiated employment relationship, the principles announced in Duldulao have been held to be even more apt. Price v. Highland Community Bank (N.D. Ill. 1989), 722 F. Supp. 454.

CCU argues that the termination policy was not a part of his employment contract because he had a separate written contract which did not include the termination policy. As we indicated above, the termination policy was adopted by the board of directors in October of 1971 while Welsh was employed under a three-year contract. This corporate policy was republished every year thereafter and must be considered to supplement Welsh’s written employment contract. We hold that summary judgment as to count III was erroneous. CCU’s termination of Welsh’s employment by an affirmative vote of only five of the nine Board members was, as a matter of law, insufficient.

The final issue is whether Welsh’s employment contract permitted a reduction in his annual salary. We can find nothing in the record on appeal to indicate the basis for the entry of summary judgment in favor of CCU on this issue. Welsh contends that paragraph 5 provides for an annual review of his salary and benefits and, if prevailing economic conditions warrant, expressly allows an increase in his compensation. He argues that, by implication, reductions in compensation are not authorized. CCU, on the other hand, argues that the provision of a minimum salary of $24,000 and the failure to exclude reductions must mean that Welsh’s salary could be either increased or decreased in accordance with prevailing economic conditions, but not decreased below the minimum. We conclude that this provision of the contract is subject to two reasonable interpretations and, therefore, is ambiguous. Summary judgment was wrongly entered as to count I as well as counts II and III.

For the reasons stated, we reverse the judgment of the circuit court of Kankakee County and remand this cause for further proceedings.

Reversed and remanded.

SLATER and BRESLIN, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES W. LAMBERT, Defendant-Appellant.
    Third District
    No. 3-92-0770
    Opinion filed August 27, 1993.

      Robert H. Jones, of Robert H. Jones, Ltd., of Peoria, for appellant.
    Erik I. Blanc, State’s Attorney, of Pekin (John X. Breslin and Robert M. Hansen, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE BARRY

delivered the opinion of the court:

The defendant, James W. Lambert, was indicted for the Class 4 felony of driving under the influence of alcohol (DUI) (Ill. Rev. Stat. 1991, ch. 951/2, par. 11 — 501(d)(1)). Thereafter, a jury found him guilty of that offense, and he was subsequently sentenced to 30 months of probation, 3 months of periodic imprisonment, and a fine of $1,000. He appeals, and we affirm.

The record shows that the State indicted the defendant pursuant to section 11 — 501(d)(1) of the Illinois Vehicle Code (Code) (Ill. Rev. Stat. 1991, ch. 951/2, par. 11 — 501(d)(1)). That section states that every person convicted of committing a DUI shall be guilty of a Class 4 felony if the person had committed two previous DUI offenses. Here, the record shows that the defendant was found guilty of DUI in 1974 and 1985.

On appeal, the defendant first contends that the indictment was insufficient because it failed to give him adequate notice. Specifically, he alleges that the indictment was defective because it did not set out the dates or locations of the prior DUI offenses. We disagree.

A charge shall be in writing and allege the commission of an offense by: (1) stating the name of the offense; (2) citing the statutory provision alleged to have been violated; (3) setting forth the nature and elements of the offense charged; (4) stating the date and count of the offense as definitely as can be done; and (5) stating the name of the accused. (Ill. Rev. Stat. 1991, ch. 38, par. 111 — 3(a).) In addition, when the State seeks an enhanced sentence because of a prior conviction, the charge shall also state the intention to seek an enhanced sentence and shall state such prior conviction so as to give notice to the defendant. However, the fact of such prior conviction and the State’s intention to seek an enhanced sentence are not elements of the offense and may not be disclosed to the jury during trial unless otherwise permitted by issues properly raised during the trial. Ill. Rev. Stat. 1991, ch. 38, par. 111 — 3(c).

In the case at hand, the indictment stated that “James W. Lambert committed the offense of driving under the influence of alcohol (Class 4 felony) in that said Defendant (s) drove a motor vehicle while under the influence of alcohol, said Defendant having committed a violation of Illinois Revised Statutes, Chapter 951/2, Section 11 — 501(a), for the third or subsequent time, in violation of Illinois Revised Statutes, Chapter 951/2, Section 11 — 501(d)(1).” The record also shows that the defendant was provided in discovery with a copy of his driver’s abstract. The abstract showed that the defendant was found guilty of DUI onMay 24, 1974, and on February 19, 1985. The defendant completed court supervision for the 1985 adjudication.

Based on the above evidence, we find that the defendant received sufficient notice regarding the State’s intent to use the defendant’s prior DUI offenses to establish that he had committed a Class 4 felony. We therefore reject the defendant’s contention that the indictment gave him insufficient notice.

In addition, we note that the indictment’s failure to list the locations and dates of the prior DUI offenses did not impair the defendant’s preparation of his defense since the elements of a Class 4 felony DUI are the same as a Class A misdemeanor DUI. (See Ill. Rev. Stat. 1991, ch. 951/2, par. 11 — 501(c).) Here, the prior offenses are not elements of a DUI charge and are used solely for sentencing purposes after the defendant is found guilty of DUI. As such, since the prior DUI offenses were irrelevant to his trial preparation, the defendant cannot claim he was prejudiced by the State’s failure to include detailed information in the indictment regarding the prior convictions.

The defendant next argues that he could not be convicted of felony DUI because he had only one prior DUI conviction. He notes that section 11 — 501(d)(1) of the Code provides that every person convicted of committing a DUI shall be guilty of a Class 4 felony if “such person committed” the DUI for the third or subsequent time. (Ill. Rev. Stat. 1991, ch. 951/2, par. 11 — 501(d)(1).) He further notes that the 1985 incident resulted in his receiving and completing court supervision. He contends that supervision is not a conviction but is similar to a continuance in that if a defendant exhibits good conduct during the supervision, the charges may be dismissed and the record of the proceedings expunged. Therefore, he concludes that since he was not convicted of a DUI in 1985 it cannot be said that he committed a second DUI.

In response, the State argues that felony DUI does not require two prior DUI convictions because the term “committed” is not the same as a conviction. In support of its argument, the State notes that a defendant can only receive supervision if he pled guilty, stipulated to the facts supporting the charge, or was found guilty. Thus, the State reasons that the instant defendant committed a prior DUI when he pled guilty and received supervision.

In reaching a decision in this case, we must interpret the language of the statute, giving the words their plain and ordinary meaning, to determine the legislature’s intent. (Cunningham v. Huffman (1993), 154 Ill. 2d 398, 609 N.E.2d 321.) We note that section 11— 501(d)(1) requires a person to have committed a DUI violation for the third or subsequent time to support a felony DUI conviction. The statute does not say that he must have two prior DUI convictions as that term is defined. (See Ill. Rev. Stat. 1991, ch. 38, par. 2 — 5.) Had the legislature intended to require two prior convictions, it could have easily done so by using the term “convicted” in section 11 — 501(d)(1) instead of the broader term “committed.”

We note that support for our interpretation can be found in the transcripts of the legislative debate on this bill. During the debate, Representative Cullerton made the following statement:

“[W]hat these Bills are talking about, is somebody that gets supervision the first time for drunk driving, after going through the program, doesn’t get a conviction, gets picked up a second time and is convicted. But on his record, that’s only his first conviction. Then goes out a third time and gets picked up and gets convicted, and that’s what we’re talking about. Somebody who the third time, has violated the law’s and has been a drunk driver.” (85th Ill. Gen. Assem., House Proceedings, May 21, 1987, at 27-28 (statements of Representative Cullerton).)

His position was also adopted by Representatives Countryman and McCracken.

In addition, we note that although the successful completion of supervision does not result in a conviction (People v. Coleman (1986), 111 Ill. 2d 87, 488 N.E.2d 1009), we believe that the term “committed” as used in this section encompasses a prior supervisory disposition because a defendant must have pled guilty, stipulated to the facts supporting the charge, or been found guilty before supervision could be imposed. See People v. Masten (1991), 219 Ill. App. 3d 172, 579 N.E.2d 27 (holding that a defendant could be charged with felony DUI when he previously pled guilty to DUI but was never sentenced because the guilty plea was the equivalent of a conviction).

As such, we reject the defendant’s contention that the statute in question requires a defendant to be convicted of two prior DUI offenses before he can be charged with a Class 4 felony. We find the statute only requires a finding that the defendant committed two prior DUI offenses to be eligible for felony DUI. Therefore, since the defendant in this case had committed two prior DUI offenses, he was properly charged with felony DUI.

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

Affirmed.

SLATER and LYTTON, JJ., concur.


author: JUSTICE LUND

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN E. FLY, Defendant-Appellant.
    Fourth District
    No. 4—92—0736
    Opinion filed August 19, 1993.

      Daniel D. Yuhas and Gloria Ann Morris, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Thomas J. Difanis, State’s Attorney, of Urbana (Norbert J. Goetten, Robert J. Biderman, and Jeffrey K. Davison, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE LUND

delivered the opinion of the court:

Following a jury trial in the circuit court of Champaign County, defendant John E. Fly was convicted of unlawful delivery of a controlled substance (Ill. Rev. Stat. 1991, ch. 561/2, par. 1401(a)(2)(A)) and sentenced to 14 years’ imprisonment. Defendant appeals, claiming that (1) he was denied his right to a speedy trial, (2) he was prejudiced by the State’s mention of his failure to call witnesses where he rested at the close of the State’s case, and (3) the trial court abused its discretion by refusing to answer a question submitted by the jury during deliberations.

On January 17, 1991, in Champaign County, an undercover police officer allegedly purchased 28.7 grams of a substance containing 33% cocaine from defendant. Defendant was not arrested at that time. On July 8, 1991, charges were brought against defendant in Champaign County. At the time charges were filed, defendant was serving a five-year prison term at Logan Correctional Center (Logan) on a conviction for unlawful possession of cannabis with intent to deliver.

In July 1991, defendant learned he might have an outstanding warrant when he received a newspaper clipping from a relative stating that a warrant had been issued for his arrest in Champaign County for allegedly selling drugs. On August 19, 1991, defendant sent a letter to the Champaign County circuit clerk’s office (circuit clerk), asking if charges had been brought against him on July 8, 1991, and, if so, requesting a copy of charges and any court documents. Defendant contends he requested this information in order to file a speedy-trial demand.

On August 22, 1991, defendant’s letter was returned to him by the circuit clerk, with a note across the bottom stating: “I find no charges being filed against you for the year of 1991.” Defendant then asked his counselor at Logan to check once again for any charges against him. The counselor found nothing on record. Defendant was transferred to Decatur in November 1991 and enrolled in a work-release program. On April 18, 1992, while on a 48-hour pass from the work-release center, defendant was arrested in Champaign County pursuant to the warrant issued on July 8,1991.

I

Defendant first argues that he was unable to exercise his right to a speedy trial due to misinformation supplied by the circuit clerk’s office. The right to a speedy trial is explicitly guaranteed in Federal prosecutions by the sixth amendment (U.S. Const., amend. VI) and has been made obligatory in State prosecutions by incorporation in the fourteenth amendment. This right is guaranteed under Illinois law. (Ill. Const. 1970, art. I, §8; Ill. Rev. Stat. 1991, ch. 38, par. 103 — 5.) The fact that a right to a speedy trial can be based either on constitutional or statutory grounds has led to some confusion in deciding speedy-trial cases. Existence of specific time limits under Illinois statute not found under the United States Constitution or Illinois Constitution creates a possibility of violation of the statutory guarantee without violating the constitutional guarantee.

It is not clear from defendant’s argument whether he is asserting a lapse of the statutory time limit as the basis for his claim, or whether he is asserting a constitutional violation due to error by the circuit clerk. To address defendant’s argument on the basis of the statutory time limit, we first note that under section 103 — 5(b) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1991, ch. 38, par. 103 — 5(b)), a defendant must make a demand for a speedy trial before the 160-day term provided by the statute will begin to run. Due to the error of the circuit clerk, defendant was not able to make such a demand. In the absence of a demand for trial, for purposes of Illinois law, the 160-day term for a speedy trial does not commence. (People v. Freeland (1981), 103 Ill. App. 3d 94, 97, 430 N.E.2d 277, 280.) Thus, had we interpreted defendant’s argument to be based upon his statutory right to a speedy trial, his argument would be without merit.

Since no demand for a speedy trial was ever actually filed, the trial court interpreted defendant’s argument to be based upon his sixth amendment right to a speedy trial. Under the sixth amendment (U.S. Const., amend. VI) and article I, section 8, of the Illinois Constitution (Ill. Const. 1970, art. I, §8) the right to a speedy trial is not subject to a specific time limitation within which defendant must be tried. The standard for determining whether a defendant’s sixth amendment right has been violated was set out by the Supreme Court in Barker v. Wingo (1972), 407 U.S. 514, 33 L. Ed. 2d 101, 92 S. Ct. 2182. Under the Barker standard, four factors are to be balanced in determining whether a delay in trial has breached constitutional limitations: (1) length of delay, (2) reason for delay, (3) defendant’s assertion of his right, and (4) prejudice to defendant. No one of these factors singly is necessary or sufficient to support a finding that the right to a speedy trial has been violated. Rather, these factors are to be considered with all other circumstances within the case which might bear on the claim. “In sum, these factors have no talismanic qualities; courts must still engage in a difficult and sensitive balancing process.” (Barker, 407 U.S. at 533, 33 L. Ed. 2d at 118, 92 S. Ct. at 2193.) The Illinois Supreme Court applied the same standard set forth in Barker in People v. Bazzell (1977), 68 Ill. 2d 177, 182-83, 369 N.E.2d 48, 50, citing People v. Henry (1970), 47 Ill. 2d 312, 316, 265 N.E.2d 876, 879, and People v. Tetter (1969), 42 Ill. 2d 569, 573, 250 N.E.2d 433, 435; see also People v. Howell (1983), 119 Ill. App. 3d 1, 456 N.E.2d 236, and People v. Jackson (1987), 162 Ill. App. 3d 476, 515 N.E.2d 390.

The trial court applied the Barker balancing test and held that defendant’s constitutional right to a speedy trial was not violated. The trial court stated:

“I can conceive of nothing, now having had the benefit of hearing the evidence adduced at trial, that suggests that there was any type of prejudice to Mr. Fly in terms of the preparation and presentation of his defense. *** The prejudice is he lost his opportunity *** to demand a trial within 160 days. That’s the prejudice. But, I don’t view that as the same thing as a constitutional violation of his constitutional right to a speedy trial. It’s a violation of his opportunity to obtain or to demand a speedy trial under the provisions of the Illinois statute, which are not the same thing as the constitutional right to a speedy trial.”

Although the circuit clerk’s error in advising defendant that he had no outstanding warrants is not condoned, we find no prejudice to defendant’s presentation of his case.

Defendant argued the date of his letter to the circuit clerk should serve as the starting point for the running of his concurrent sentence and, thus, he should be credited for incarceration time prior to his arrest for this offense. Defendant received a 14-year sentence, to run concurrently with the sentence he is presently serving. Defendant was given credit for all days served from the date of his arrest on April 18, 1992. In setting defendant’s sentence, the trial court considered as a mitigating factor defendant’s inability to resolve the case sooner due to the circuit clerk’s error and imposed a concurrent, rather than consecutive, sentence.

Defendant had five prior criminal convictions, of which four were felonies. The Class X felony of which defendant stands convicted carries a sentencing range of 6 to 30 years’ imprisonment. It is the opinion of this court that the trial court adjusted the sentence to address the facts and properly refused to consider time spent in custody prior to his arrest.

II

Defendant next argues he was prejudiced by the State’s suggestion during closing arguments that he could have, but did not, produce certain witnesses. He claims the trial court’s attempt to correct the possible misconceptions created by the State’s suggestion only served to mislead the jury. We recognize the State’s comment as error, but are not convinced the error prejudiced defendant in such a way as to require reversal.

At trial, defendant did not present a case, but rested at the close of the State’s evidence. In closing argument, counsel for defendant questioned why the State did not call its confidential source to testify. This confidential source was the individual who initially placed law enforcement officials in contact with defendant. Testimony at trial indicated the confidential source witnessed the alleged sale of cocaine by defendant to the undercover officer. Defense counsel asserted the State’s failure to call the confidential source as a witness allows the jury to draw an inference that his testimony would be unfavorable to the State.

In rebuttal, the prosecution acknowledged the confidential source did not testify and mentioned that defendant had not produced certain individuals who were potential witnesses. During the State’s evidence, a surveillance officer testified defendant had arrived for the drug transaction in an auto that contained four unidentified people. Those four were not called as witnesses. The record includes the following:

“[Prosecution]: [Defense counsel] said that we’re missing *** the confidential source, and *** he did not testify. There are some other people that the Defendant had access to—
[Defense counsel]: Object.
THE COURT: I believe it’s proper rebuttal argument. Overruled.
[Prosecution]: [N]amely, his four buddies in the Chevy. We don’t know who they are. They were never introduced to [the undercover officer]. It was only this Defendant introduced to [the undercover officer]. The State hasn’t got a clue as to who those four people are, but the defendant knows, and they’re not here.”

Following closing argument, the court addressed the matter of failure to call witnesses with an impromptu instruction to the jury:

“However, I overruled an objection by [defense counsel] during the State’s rebuttal argument. [The prosecutor] was referring to the fact that the other individuals alleged to have been in the Chevrolet were known to the Defendant, and I held that that was a proper argument for you to consider with regard to the fact that those people did not testify, and it would be inappropriate to draw an inference against the State.
However, you must not consider that argument in any way as suggesting because it would be improper that there is any burden whatsoever on the Defendant to produce these individuals or that their absence in this way can give rise to an inference that their testimony would have been adverse to the Defendant. There is, obviously, no obligation on the Defendant to call them or any other witnesses.”

Defendant cites People v. Eddington (1984), 129 Ill. App. 3d 745, 473 N.E.2d 103, where this court held it was reversible error for the State to comment on defendant’s failure to present a witness at trial. In the case at bar, as in Eddington, the existence of potential defense witnesses was interjected into the case through the State’s witnesses. The majority in Eddington held:

“As a general rule, it is improper for the prosecution to comment on a defendant’s failure to present witnesses when such witnesses are equally accessible to both parties. (People v. Popely (1976), 36 Ill. App. 3d 828, 345 N.E.2d 125.) An exception to the rule exists where potential alibi witnesses are interjected into the case by the defendant but are not produced at trial. [Citations.] This exception does not apply when the existence of potential witnesses is elicited from a defense witness on cross-examination. (People v. Mays (1972), 3 Ill. App. 3d 512, 277 N.E.2d 547.) We hold the exception likewise inapplicable when the existence of potential witnesses is interjected into the case through the State’s witnesses.
The State concedes that the prosecutor’s reference to the defendant’s failure to call these witnesses was probably erroneous, but argues the remark could not have resulted in substantial prejudice to defendant since the jury was instructed on the purposes of argument and the burden of proof. We disagree. If error of this nature were deemed so easily cured, the prosecution could violate the rule and argue harmless error in any case. We hold the remark constituted reversible error.” (Emphasis added.) (Eddington, 129 Ill. App. 3d at 777, 473 N.E.2d at 125.)

Justice Miller dissented, stating that where there is convincing evidence of defendant’s guilt and reasonable grounds do not exist for believing that the jury’s deliberations and verdict were prejudiced by the remark, the error should be deemed harmless. Eddington, 129 Ill. App. 3d at 782, 473 N.E.2d at 128 (Miller, J., concurring in part and dissenting in part).

A prosecutor has wide latitude to comment on evidence and draw reasonable inferences therefrom and, absent a clear abuse of discretion, a court’s ruling on the propriety of these comments will not be disturbed on review. (People v. Rockman (1986), 144 Ill. App. 3d 801, 813, 494 N.E.2d 688, 696.) Further, the prosecution may-comment on the fact that pieces of evidence stand undenied or unexplained. (People v. Eagle (1979), 76 Ill. App. 3d 427, 435, 395 N.E.2d 155, 161.) However, as this court has pointed out, the prosecution may not mention a defendant’s failure to call a witness when the existence of this witness is interjected into the case through the State’s witnesses. (Eddington, 129 Ill. App. 3d at 777, 473 N.E.2d at 125.) Even so, in this case we find the trial court has cured the error and defendant has suffered no prejudice as a result of its commission.

At the hearing on defendant’s post-trial motion, the trial court addressed the possibility of prejudice as follows:

“I believe there was no prejudice to the Defendant, in view of the Court’s cautionary comments to the jury during jury instructions. They would have been better made at the time the issue came up, but I believe, in view of the fact that they were made, any possible bias or prejudice to Mr. Fly was eliminated.”

A close examination of the record and appropriate case law reveals that error does exist in the instant case. Although we cannot condone the prosecutor’s remark, we believe the error was adequately corrected by the trial court and, in this particular case, decline to follow the standard established in Eddington.

Defendant argues that in attempting to correct any misconception created by the State’s comment, the trial court left the jury with the mistaken impression that it could not draw a negative inference against either side for failing to call a witness. Defendant cites People v. Johnson (1989), 191 Ill. App. 3d 940, 945, 548 N.E.2d 433, 436, which holds that the State’s failure to call a witness allegedly present at the scene of the crime creates the unfavorable inference, as a matter of law, that the witness’ testimony would be unfavorable to the State. Under Johnson, the defendant asserts that even if the court’s impromptu instructions cured the error caused by the State’s remarks, defendant was still prejudiced because the jury was led to believe an adverse inference could not be drawn against the State for failing to call the confidential source as a witness.

The State distinguishes the Johnson decision, citing People v. Parsons (1991), 222 Ill. App. 3d 823, 831, 584 N.E.2d 442, 448, where the court noted that in Johnson the State had unjustifiably refused to tender the informant to the defense for interview. Furthermore, the police testimony was inherently suspect — only one police officer out of a 12-member surveillance team testified at trial. Neither of these factors is present in the case at bar, where three police officers testified to defendant’s presence at the location of the alleged sale of narcotics. Nor is there evidence that the State refused to tender the informant to the defense for interview.

Finally, Parsons notes that a negative inference is only warranted where the uncalled witness has testimony unique to the case. The court heard conflicting testimony as to whether the informant was in the room at the time the drug sale was made. Had he been in the room, he may or may not have seen the actual exchange of money for drugs. Against this, we have the testimony of two officers who testified they saw defendant enter the room where the drugs were sold, plus testimony of the undercover officer who allegedly purchased drugs directly from defendant. The State presented overwhelming evidence that defendant was involved in a sale of narcotics to an undercover police officer. We see no indication that testimony of the confidential source was so unique that its omission would create, as a matter of law, a negative inference against the State. The trial judge’s comments to the jury regarding the matter are at best ambiguous and may well have confused the jury as to what inferences it was allowed to draw. However, in light of the overwhelming evidence of guilt, we find no indication that defendant was prejudiced.

Ill

Finally, defendant argues the trial court failed to exercise its discretion by refusing to answer the jury’s question regarding the whereabouts of the confidential source during the alleged drug transaction. We disagree.

The trial court record reads as follows:

“THE COURT: The time is now approximately 11:23 a.m. The jury has just transmitted to the Court through the bailiff the following written interrogatory: [Qjuestion: ‘Was the confidential source in the game room during the transaction?’
Your position as to whether the Court should respond, and, if so, how [prosecutor]?
[Prosecutor]: First of all, the answer to the question is: T don’t know,’ and, secondly, I don’t believe the Court should respond. I think the Court should say that, ‘The evidence has been presented in the testimony,’ or something like that. ‘You decide.’
THE COURT: [Defense counsel]?
[Defense counsel]: I specifically asked [the police officer]— [s]o, I think we should answer it, and we should answer it in the affirmative. I was going to say I asked [the police officer] and because it was somewhat ambiguous about what—
THE COURT: I thought [the undercover officer] said he wasn’t.
[Defense counsel]: Well, I specifically asked [the police officer].
THE COURT: Yeah.
[Defense counsel]: And [the police officer] said, ‘Yes.’
THE COURT: But, [the undercover officer] said, ‘No’; didn’t he?
[Defense counsel]: [The undercover officer] didn’t say.
THE COURT: One way or the other? Well, [the undercover officer] wasn’t directly asked, but I thought the scenario he played out had just him and—
[Defense counsel]: He said he went back there and [defendant] went back there, but he didn’t say anyone else did or didn’t.
THE COURT: Oh, well.
[Defense counsel]: And, so, I specifically asked [the police officer] and—
THE COURT: I’m troubled with the formulation of the question, though. Just ’cause [the police officer] says it’s true doesn’t make it true, and I don’t want to endorse anybody’s testimony. I think the proper response by the Court is: ‘This and all other questions of fact are for you, the jury, to decide based on the evidence as you heard it. The Court cannot answer your question. You must answer it.’ Well, they don’t have to answer it. I think the proper response is: ‘You have heard the evidence and must arrive at your factual determinations based on the evidence. I cannot respond to your question.’
[Defense counsel]: Show my objection.
THE COURT: So noted. Overruled.”

Defendant asserts, in not answering the jury’s question or allowing the jury to have the relevant testimony read to them by the court reporter, that the trial court denied him a fair trial. Defendant cites People v. Queen (1974), 56 Ill. 2d 560, 565, 310 N.E.2d 166, 169, which states that error exists when a trial court refuses to exercise discretion in the erroneous belief that it has no discretion as to the question presented. In People v. Govin (1991), 213 Ill. App. 3d 928, 938, 572 N.E.2d 450, 457, this court held that a trial court has discretion to allow or refuse the jury’s request for a review of testimony. After a close examination of the record, we find that the trial court was aware it was within its discretionary powers to answer the jury’s question but felt the interest of justice was best served by leaving the question unanswered.

We affirm the trial court on all points.

Affirmed.

KNECHT and GREEN, JJ., concur.