author: PRESIDING JUSTICE GREIMAN

text:
    WILLIAM T. REGAS, Plaintiff-Appellant, v. ASSOCIATED RADIOLOGISTS, LTD., Defendant-Appellee.
    First District (3rd Division)
    No. 1—90—1973
    Opinion filed June 17,1992.

      Law Offices of William T. Regas, of Park Ridge, for appellant.

      Craig E. Anderson and Charles J. Corrigan, both of Jacobson, Brandvik & Anderson, of Chicago, and Donald L. Padgitt, of Padgitt & Williams, Ltd., of Winnetka, for appellee.
   PRESIDING JUSTICE GREIMAN

delivered the opinion of the court:

Plaintiff, William T. Regas, an attorney, filed a complaint for money damages due to defects discovered in the subroof of a building he had purchased from defendant, Associated Radiologists, Ltd., an incorporated group of doctors. Plaintiff now appeals the circuit court’s orders which (1) granted defendant’s motion for summary judgment; (2) denied plaintiff’s motion for reconsideration or rehearing to vacate summary judgment; and (3) denied plaintiff’s motion to file a third amended complaint.

For the reasons which follow, we affirm the orders of the circuit court.

On August 9, 1982, plaintiff purchased a commercial office building from defendant. When plaintiff began to remodel the building, he removed portions of the ceiling and found the subroof in rotting condition. Plaintiff alleges that the defects could not be discovered from a visual inspection of the building because the subroof was above the ceiling as viewed from the inside and under the exterior roof as viewed from the outside of the building.

Defendant refused to pay for or reimburse plaintiff for the cost of the roof repairs caused by water leakage and plaintiff brought this cause. Thereafter, he filed a three-count second amended complaint seeking an injunction (count I), specific performance (count II), and money damages (count III). Counts I and II have been dismissed by an agreed order. Only count III for money damages is at issue.

Count III of plaintiff’s second amended complaint contains allegations that plaintiff discovered the “rotten and broken condition” of the subroof during the course of remodeling, that this was a latent defect that could not have been discovered by reasonable inspection, and that defendant knew or should have known of the condition and made disclosure to plaintiff.

The property at issue is improved with a commercial office building which was purchased by defendant in 1979. Around April 1981 defendant ceased its business operation on the subject premises but a tenant, Dr. Bora, continued his dental practice in a portion of the building.

In January 1982 plaintiff first visited the building as a prospective buyer. Thereafter, defendant solicited sealed bids from plaintiff and Dr. Bora, both having expressed an interest in purchasing the premises. In February 1982 defendant accepted plaintiff’s sealed bid to purchase the building and gave a set of keys to plaintiff. On March 11, 1982, plaintiff and defendant executed a real estate contract and on June 21, 1982, the parties entered into an installment agreement for warranty deed. The transaction closed August 9, 1982.

In his deposition, plaintiff testified that he went to the building on the average of two times a week from the time defendant accepted his purchase bid in February. Also in February, Dr. Sam Mulopulos, the president and a shareholder of defendant, called plaintiff to notify him that Dr. Bora had made a serious complaint about a leaking roof and that repairs were going to be made. Dr. Mulopulos suggested that plaintiff meet with the roofer who would be doing the repairs. Plaintiff and Dr. Mulopulos had been friends over 30 years.

The roofing contractor told plaintiff that the entire roof was “in serious shape” but he was only authorized to replace the roof over Dr. Bora’s portion of the building. In turn, plaintiff told one of the principals of defendant that the balance of the roof should also be replaced and asked if defendant would pay for the repairs as part of the sales price. Defendant refused and plaintiff then contacted a structural engineer who inspected the exterior portion of the roof and determined it was fine. Plaintiff never sought to withdraw his purchase offer based on the condition of the building or rescind the agreement.

From February until August, plaintiff was at the building between two dozen and three dozen times. At various times, plaintiff was accompanied by the roofing contractor who replaced the roof over Dr. Bora’s portion of the building, an electrician, a structural engineer, an architect, numerous general contractors and subcontractors, including another roofer who thought the general condition of the roof was reasonable. Defendant agreed to give plaintiff the warranty on the roof repairs done on Dr. Bora’s portion of the building.

The day before closing, plaintiff discovered a leak which plaintiff assumed to originate from a crack at the point where the roof meets the wall. Plaintiff mentioned this discovery at the closing but never suggested that he wanted to delay the closing to investigate the leak and did not request any holdback from the purchase price to be available to pay for roof replacement or repairs.

Subsequently the defective subroof was exposed when the ceiling was removed during plaintiff’s remodeling.

During his numerous visits to the building prior to closing, plaintiff acknowledged that he paid no attention to any discoloration of the ceiling or walls because he had always planned to remodel. In addition, due to his experience in owning other buildings, he was aware of problems associated with flat roofs.

In his deposition, Dr. Mulopulos testified that at the time the roof over Dr. Bora’s portion of the building was being repaired, Dr. Mulopulos told plaintiff that the entire roof did not need to be repaired. Dr. Mulopulos asserted that he never had any problems with the roof and there was still a guarantee on the roof which had been replaced by a contractor prior to defendant’s purchase of the building in 1979.

The record includes documents which show that a new roof was put on the northeast corner of the building approximately one month before defendant purchased the premises in 1979. This roofing contract includes a six-year guarantee. Also, a roofing contract for the work performed in February 1982 on Dr. Bora’s portion of the building states that the roof over the north section of the building would be replaced and the work would be guaranteed for five years.

In its motion, defendant asserted that it was entitled to summary judgment because plaintiff caused the roof to be inspected prior to closing and had actual knowledge of the condition prior to closing, and defendant made no statement, upon which plaintiff could rely, concerning the roof’s condition.

In granting defendant’s motion for summary judgment, the circuit court found that “there was notice on behalf of the Plaintiff of the condition that there was a leakage; that he had hired an expert, and the expert came back without any problems or without a report that showed where or when the problems were; that the fact there was a leakage was not held back by the Defendants in any way and that the Defendants did not make any fraudulent or misleading statements that could be relied upon by the Plaintiff.”

Thereafter, plaintiff filed a motion for reconsideration and to file a third amended complaint. Plaintiff’s proposed third amended complaint contained four counts: (1) negligence; (2) negligent misrepresentation; (3) an undisclosed dangerous condition; and (4) breach of implied warranty of habitability.

The circuit court denied plaintiff’s motion and this appeal followed.

On appeal, plaintiff first asserts that the trial court erred in granting defendant’s motion for summary judgment because a genuine issue of material fact exists, i.e., whether or not defendant knew or should have known of the defective condition of the subroof.

Defendant responds that summary judgment was appropriate because plaintiff had actual knowledge of the leakage problem and thus was on notice before closing that the roof leaked.

Summary judgment shall be granted “if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1005(c); Connor v. Merrill Lynch Realty, Inc. (1991), 220 Ill. App. 3d 522, 581 N.E.2d 196.) The pleadings, depositions and affidavits must be construed most strictly against the moving party and most liberally in favor of the opponent. (Purtill v. Hess (1986), 111 Ill. 2d 229, 240, 489 N.E.2d 867.) Even though a complaint may purport to raise an issue of material fact, if such issue is not further supported by evidentiary facts, summary judgment is appropriate. Seefeldt v. Millikin National Bank (1987), 154 Ill. App. 3d 715, 718, 506 N.E.2d 1052.

Generally a vendor of real estate is not liable for injuries sustained on the real estate once the vendor has transferred possession and control of the premises. (Anderson v. Cosmopolitan National Bank (1973), 54 Ill. 2d 504, 507, 301 N.E.2d 296; Firestone v. R.H. Lincoln, Inc. (1974), 23 Ill. App. 3d 320, 324, 319 N.E.2d 60.) The exception to this general rule is when the vendor actively conceals or fails to reveal a dangerous condition to the vendee. In that case, the liability of the vendor continues until the vendee discovers the defective condition and has an opportunity to remedy it. Firestone, 23 Ill. App. 3d at 324.

The vendee’s knowledge and conduct, however, may preclude the vendor’s liability (Firestone, 23 Ill. App. 3d at 329) because a purchaser of property “cannot shut his eyes to available information and then charge that he has been deceived.” (Fleisher v. Lettvin (1990), 199 Ill. App. 3d 504, 511, 557 N.E.2d 383; see also Connor, 220 Ill. App. 3d 522, 581 N.E.2d 196; Seefeldt v. Millikin National Bank (1987), 154 Ill. App. 3d 715, 719, 506 N.E.2d 1052.) Thus, the vendor’s liability may not be predicated on a defective condition of which the vendee was aware. See Martin v. 1727 Corp. (1983), 120 Ill. App. 3d 733, 739, 458 N.E.2d 990.

Where signs of a problem are obvious and observed by the prospective purchaser, the signs put the prospective purchaser on notice of the problem as much as any disclosure by the seller. (Fleisher, 199 Ill. App. 3d 504, 557 N.E.2d 383.) In Fleisher, based on seller’s fraud, plaintiff complained that there was water damage in the walls of the residence from a faulty gutter system and in the basement from flooding. Prior to signing the real estate contract, the plaintiff visited the house on numerous occasions and had various individuals inspect the house.. During the inspections, plaintiff and the inspectors noticed signs of water damage, conjectured as to its causes, and decided the source of the problems could not be determined without opening up the walls and the roof. After reducing his purchase offer to account for repair estimates, plaintiff took possession of the house.

As in the case at bar, this court noted in Fleisher that plaintiff or his agents had conducted exterior inspections of the house, had not shown that defendants knew the cause of the moisture problems, and specifically noticed the signs of water damage prior to purchase. Regarding the water-damaged basement, the court found:

“The signs of flooding in the basement observed by plaintiff and his agents, which were obvious to anyone inspecting the basement, put plaintiff as much on notice of the probability of basement flooding as any disclosure by defendants would have.” Fleisher, 199 Ill. App. 3d at 511.

Similarly, a water-stained ceiling put a prospective purchaser on notice of a potential problem and precluded the vendor’s liability in Smith v. Ethell (1986), 144 Ill. App. 3d 171, 494 N.E.2d 864, where the plaintiffs entered into a contract with the defendants for the purchase of a tavern but later sought to cancel the purchase contract because of the poor condition of the roof. When the plaintiffs visited the building, they observed a portion of the ceiling sagged and was water stained. In response to the plaintiffs’ several inquiries made during their inspections, the defendants consistently maintained that the roof was in good condition, the problem was caused by a leak in the air conditioner, and there was no need to inspect the attic. After making a $5,000 down payment, the plaintiffs eventually went into the attic and discovered holes in the roof, water-soaked beams and that part of the seal of the roof had pulled away. The court held that cancellation of the contract was not justified because the plaintiffs were on notice of the problem and were required to investigate the cause of the water damage even though the seller told them that the roof was in good condition and there was no need to inspect the attic. The court reasoned that the “defect was a visible one although the cause of the defect was unclear without further inspection.” (Smith, 144 Ill. App. 3d at 175.) Smith is an even more difficult case than the case at bar, the defendants having made affirmative representations as to the cause of the water leaks.

We find the principles enunciated in Fleisher and Smith support the granting of defendant’s motion for summary judgment in the present case. Like the plaintiffs in Fleisher and Smith, the present plaintiff actually observed the water leakage problem. Plaintiff’s testimony stating that he did not know the cause of the leak does not erase his awareness of the problem. Further, the water leak in the present case was as visible and obvious as the problems observed in Fleisher and Smith. Moreover, the present defendant notified plaintiff when the building’s tenant, Dr. Bora, complained about the roof leaking and suggested plaintiff meet with the contractor who was repairing the roof. The roofing contractor told plaintiff that the entire roof should be replaced. In addition, plaintiff testified that he was familiar with problems associated with flat roofs because he owned other buildings. Plaintiff also testified that he never paid attention to any discoloration of the ceilings or walls because he had always planned to remodel.

Plaintiff alleges that the defect was “latent” so that absent a duty of inquiry, the defendant cannot be held to be any more aware of the cause of the water leak than plaintiff.

Plaintiff relies heavily on Sippy v. Cristich (1980), 4 Kan. App. 2d 511, 609 P.2d 204, although such reliance is misplaced. In Sippy, the vendee plaintiffs alleged fraud against the vendor defendants for damages sustained due to a defective roof. Unlike the present case, the vendors in Sippy affirmatively claimed the roof had been repaired and was in good condition. The Sippy court found that this statement by the vendors was fraudulent because it implied that the roof had been repaired satisfactorily and stated that the “test is whether the recipient has ‘information which would serve as a danger signal and a red light to any normal person of his intelligence and experience.’ ” (Sippy, 4 Kan. App. 2d at 515, 609 P.2d at 208, quoting Restatement (Second) of Torts, Tentative Draft No. 11 (1965).) In the present case, a danger signal was clearly evident to plaintiff, who not only saw the water leak but perceived it as a problem.

The Illinois Supreme Court has held that economic losses incurred by a home buyer for the costs of repair and replacement of a defective chimney, adjoining wall and patio are not recoverable under a negligence theory. (Redarowicz v. Ohlendorf(1982), 92 Ill. 2d 171, 441 N.E.2d 324.) In Redarowicz, the plaintiff purchased a home from the original owner and then brought an action against the builder on four theories: tort, contract, fraud, and implied warranty of habitability. In affirming the dismissal of the counts based in negligence, the Redarowizc court relied on the Moorman doctrine, which originated in Moor-man Manufacturing Co. v. National Tank Co. (1982), 91 Ill. 2d 69, 435 N.E.2d 443.

The Moorman doctrine precludes economic damages in tort cases based on negligence. The Moorman decision, however, further provided two exceptions to this rule. Economic losses are recoverable (1) where one intentionally makes false representations and (2) where one who is in the business of supplying information for the guidance of others in their business transactions makes negligent representations. Moorman, 91 Ill. 2d at 88-89.

In accordance with Moorman principles, this court held that the plaintiffs who had purchased a home and later discovered numerous defects could not recover economic losses from the sellers under a negligence count. (Zimmerman v. Northfield, Real Estate, Inc. (1986), 156 Ill. App. 3d 154, 510 N.E.2d 409.) This court reasoned that the sellers did not fall within the Moorman exception. (Zimmerman, 156 Ill. App. 3d at 164.) However, a cause of action against the sellers could be maintained where intentional misrepresentation or intentional fraud was sufficiently alleged. Zimmerman, 156 Ill. App. 3d at 164.

In the present case, plaintiff’s second amended complaint alleges only negligence, not intentional misrepresentation or fraud.

Our examination of the record in this case discloses no triable issue of material fact and thus summary judgment was appropriate.

Plaintiff next contends that the circuit court erred in denying his motion for reconsideration or rehearing to vacate summary judgment under section 2 — 1203 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1203) and for leave to file a third amended complaint under section 2 — 1005(g) of the Code (Ill. Rev. Stat. 1989, ch. 110, par. 2-1005(g)).

The purpose of a motion to vacate is to alert the trial court to errors it has committed and afford an opportunity for their correction. (In re Marriage of Stuart (1986), 141 Ill. App. 3d 314, 316, 490 N.E.2d 243; Abbey Plumbing & Heating, Inc. v. Brown (1977), 47 Ill. App. 3d 719, 722, 365 N.E.2d 115.) A section 2 — 1203 motion invokes the sound discretion of the trial court. In re Marriage of Rosen (1984), 126 Ill. App. 3d 766, 467 N.E.2d 962; Abbey Plumbing & Heating, 47 Ill. App. 3d 719, 365 N.E.2d 115.

The record on appeal does not include a report of the hearing which was apparently held on plaintiff’s section 2 — 1203 motion. In the absence of a report of the proceeding, a reviewing court must assume the circuit court heard sufficient evidence upon which to base its decision. Abbey Plumbing & Heating, 47 Ill. App. 3d at 722.

From the record on appeal, we cannot say that the circuit court abused its discretion in denying plaintiff’s motion to reconsider and vacate summary judgment.

Plaintiff’s proposed third amended complaint contains four theories of liability: (1) negligence; (2) negligent misrepresentation; (3) undisclosed dangerous condition; and (4) breach of implied warranty of habitability. Plaintiff acknowledges that Illinois does not recognize a legal cause of action for breach of implied warranty of habitability under the circumstances of this case.

Defendant responds that the refusal to allow the filing of plaintiff’s third amended complaint was proper because each count is defective and the proposed amended complaint does not contain any factual allegations which were not presented to the circuit court when it decided the motion for summary judgment.

Section 2 — 1005(g) provides that “[bjefore or after the entry of summary judgment, the court shall permit pleadings to be amended upon just and reasonable terms.” (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1005(g).) Under the Code, amendments are allowed on just and reasonable terms at any time before final judgment. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 616.) Whether or not to grant leave to amend a complaint rests within the sound discretion of the circuit court. Ruklick v. Julius Schmid, Inc. (1988), 169 Ill. App. 3d 1098, 1111, 523 N.E.2d 1208.

The relevant factors considered in determining whether or not to allow amendment of pleadings are: (1) whether the proposed amendment would cure the defective pleading; (2) whether other parties would sustain prejudice or surprise by virtue of the proposed amendment; (3) the timeliness of the proposed amendment; and (4) whether previous opportunities to amend the pleadings could be identified. (Loyola Academy v. S & S Roof Maintenance, Inc. (1992), 146 Ill. 2d 263, 273, 586 N.E.2d 1211.) However, the primary consideration is whether amendment would further the ends of justice. (Ruklick, 169 Ill. App. 3d at 1113.) Where it is apparent even after amendment that no cause of action can be stated, leave to amend should be denied. Ruklick, 169 Ill. App. 3d at 1111.

Plaintiff’s proposed third amended complaint does not cure the defects in the prior pleadings, does not present any factual allegations which have not already been addressed by the trial court, and attempts to state a cause of action under a theory not yet recognized against a vendor such as defendant (breach of implied warranty of habitability).

To satisfy the next two elements of the test enunciated in Loyola Academy, a plaintiff must file a proposed amendment within a reasonable length of time. Filing a motion to amend within 17 months after filing the cause of action is a reasonable length of time. (Loyola Academy, 146 Ill. 2d at 275.) In contrast, filing a motion to amend a complaint six years after the underlying incident occurred and four years after the original complaint was filed has been determined an unreasonable length of time. (Wingate v. Camelot Swim Club, Inc. (1990), 193 Ill. App. 3d 963, 550 N.E.2d 665.) In the present case, plaintiff sought to file his third amended complaint over seven years since the discovery of the defect and over six years after the cause was filed.

Regarding the last factor, the record reveals that plaintiff clearly had previous opportunities to amend the pleading as he had already done so twice before summary judgment was granted.

We find that plaintiff did not meet the requirements enunciated in Loyola Academy and do not believe that the ends of justice would be furthered by allowing plaintiff to amend his complaint. Accordingly, we find that the circuit court did not abuse its discretion in denying plaintiff’s motion to file an amended complaint.

Judgment affirmed.

RIZZI and CERDA, JJ., concur.


source: Caselaw Access Project

author: JUSTICE LINN

license: Public Domain

text:
    CINTUC, INC., d/b/a Cintuc Beer Garden, Plaintiff-Appellant, v. WALTER S. KOZUBOWSKI, City Clerk of the City of Chicago, et al., Defendants-Appellees.
    First District (4th Division)
    No. 1—91—1346
    Opinion filed June 18,1992.

      William J. Cooley, of Chicago, for appellant.
    Kelly R. Welsh, Corporation Counsel, of Chicago (Benna Ruth Solomon, Assistant Corporation Counsel, of counsel), for appellee Walter S. Kozubowski.

      Michael Levinson, General Counsel, of Chicago (Daniel P. Madden, of counsel), for other appellee.
   JUSTICE LINN

delivered the opinion of the court:

Plaintiff, Cintuc, Inc., doing business as Cintuc Beer Garden (Cintuc), brought an action in the circuit court of Cook County against defendants, the city clerk and the Board of Election Commissioners of Chicago. Contesting the validity of a petition for a local option election, Cintuc asked the trial court to enjoin defendants from placing a referendum question on the April 2,1991, ballot.

Cintuc claimed that the petition failed to contain a sufficient number of valid signatures. Cintuc argued, inter alia, that the petition sheets contained an error in the notarial jurat, which invalidated the petition.

The trial court entered an order in favor of defendants. The court concluded that the erroneous jurats did not affect the validity of the petition. Cintuc appeals, assigning error to the trial court’s reasoning and result.

We affirm the order of the trial court.

Background

A

The record contains the following pertinent facts. Prior to the April 2, 1991, election, residents of Chicago’s 37th precinct, 13th ward, circulated a petition among precinct residents. The petition sought to put on the ballot a referendum question that asked whether the retail sale of alcoholic liquor should be prohibited in the precinct. See Ill. Rev. Stat. 1989, ch. 43, par. 166 et seq.

The petition had to have a minimum of 111 signatures to put the question on the ballot. (See Ill. Rev. Stat. 1989, ch. 43, par. 167.) On January 2, 1991, the petition was filed with the city clerk. The petition had 195 signatures on 39 sheets. At the foot of each sheet, the circulator of the sheet certifies that he resides in the precinct; that he personally circulated that petition sheet; that each signature that appears on the sheet is genuine and was signed on the date indicated on the sheet; and that to the best of his knowledge or belief each person who signed the petition was a legal voter in the precinct.

Beneath the circulator’s certification is printed the following notarial jurat:

“Subscribed and sworn before me, a Notary Public in and for Cook County, State of Illinois, this_day of_, 1990 by [name of circulator].
[signature of notary public]
NOTARY PUBLIC”

B

Cintuc holds a liquor license and does business in the precinct as Cintuc Beer Garden. On February 20, 1991, Cintuc filed a complaint in the trial court to contest the validity of the petition. Cintuc claimed that, for several reasons, none of the petition’s 195 signatures was valid. Cintuc argued, inter alia, that the notaries who certified the petition sheets completed the notarial jurats incorrectly. Consequently, according to Cintuc, the petitions were invalid.

On March 27, 1991, the trial court ruled in favor of defendants. The court ruled that the applicable statutes do not prescribe a specific form of notarial jurat for a petition for a local option election. The court further ruled that the forms of jurat that appear in section 6— 105 of the Illinois Notary Public Act (111. Rev. Stat. 1989, ch. 102, par. 206 — 105) are sufficient for a petition for a local option referendum; however, the form of jurat is merely directory and not mandatory.

The court found that the notarial jurat in the case at bar was erroneously completed. However, the court found that the defective jurat “does not on its face indicate that the circulators failed to appear before the respective notaries; plaintiff has presented no evidence to that effect; and the only evidence before the Court indicates that the necessary notary requirements were complied with.”

The trial court also found that the parties agreed “that the number of valid signatures remaining on the Petition, after counting valid revocations and other defects in the Petition, is greater than the number needed to place the proposition on the ballot.” The trial court declared that the petition was valid and that the referendum question could be put on the April 2,1991, ballot. Cintuc appeals.

Opinion

I

We briefly note two preliminary matters. First, although the record is silent on this point, it is obvious that the April 2, 1991, election has already occurred. However, this appeal is not moot. The referendum effectively deprived Cintuc of valuable license privileges. Also, the issues in this case involve a matter where there is a substantial public interest. See Quarles v. Kozubowski (1987), 154 Ill. App. 3d 325, 329, 507 N.E.2d 103, 106.

Second, Cintuc and defendants disagree on which statute to which we should refer. The requirements of a petition for a local option election are established in article IX of the Liquor Control Act (Act) (Ill. Rev. Stat. 1989, ch. 43, par. 166 et seq.). However, section 9 — 4 of the Act specifically states that a petition “shall conform to the requirements of the general election law, as to form and signature requirements.” (Ill. Rev. Stat. 1989, ch. 43, par. 169.) Further, “any reference *** to ‘the general election law’ *** is a reference to [the Election Code].” (Ill. Rev. Stat. 1989, ch. 46, par. 1 — 1.) Thus, a petition for a local option election must also meet the applicable requirements of article 28 of the Election Code, specifically section 28 — 3. (Ill. Rev. Stat. 1989, ch. 46, pars. 28 — 1, 28 — 3; see In re Petition to Form a New Park District (1989), 182 Ill. App. 3d 973, 980-81, 538 N.E.2d 849, 853-54.) In any event, the Liquor Control Act and the Election Code both require that the petition circulators take an oath before an officer authorized to administer oaths. Ill. Rev. Stat. 1989, ch. 43, par. 169; ch. 46, par. 28 — 3.

II

We now reach the issue on appeal. It is undisputed that a petition circulator signed the certification on each petition sheet. However, it is also undisputed that two notary publics erroneously completed the jurat. Referring to the above-quoted form, one of the notaries printed his or her name in the space where the name of the circulator should appear. Thus, a notary’s name appears in the jurat twice where it should appear only once. It is a consistent mistake that appears on each of the petition’s 39 sheets. Cintuc claims that this defect invalidates the petition. We agree with the trial court that it does not.

The trial court ruled that while the statutory forms of jurat are sufficient for a local option referendum petition, those forms are merely directory and not mandatory. We agree. Section 6 — 103(a) of the Illinois Notary Public Act states that a notarial act must be evidenced by a jurat signed and dated by the notary public. The jurat must also include the identification of the jurisdiction in which the oath is taken and the official seal of office. These are the statute’s sole requirements as to a notarial jurat. (Ill. Rev. Stat. 1989, ch. 102, par. 206 — 103(a).) A jurat is sufficient if it meets the requirements of subsection (a) and (1) is in one of the short forms listed in section 6— 105, or (2) is in a form otherwise prescribed by Illinois law, or (3) is in a form that sufficiently shows that the notary’s actions met the requirements of the particular notarial act. Ill. Rev. Stat. 1989, ch. 102, par. 206 — 103(b).

The statute accords with custom. Courts generally view a jurat as merely that part of an affidavit where the officer certifies that it was sworn before him. It is not the affidavit. Rather, the jurat is simply evidence of the fact that the affidavit was properly sworn to by the affiant. (Cox v. Stern (1897), 170 Ill. 442, 446, 48 N.E. 906, 907; Theobald v. Chicago, Milwaukee & St. Paul Ry. Co. (1897), 75 Ill. App. 208, 213; accord 1 Ill. L. & Prac. Affidavits §3 (1988); 2A C.J.S. Affidavits §31 (1972).) Accordingly, where an affiant is otherwise identified, courts overlook mere clerical errors such as naming the wrong person in the jurat, or even omitting from the jurat the affiant’s name entirely. 2A C.J.S. Affidavits §33 (1972).

Applying these principles to the case at bar, it is clear that the jurat, as it was completed at the foot of each petition sheet, was sufficient under Illinois law. First, the jurat met the statutory requirements of section 6 — 103 of the Notary Public Act. The jurat contained the information required by subsection (a) and sufficiently showed that a circulator swore an oath before a notary, meeting the requirement of subsection (b)(2) or (b)(3). See Ill. Rev. Stat. 1989, ch. 102, par. 206 — 103.

Further, it is undisputed that the circulators signed the certification on each petition sheet in accordance with Illinois law. They took an oath before a person whom they believed would administer the oath correctly. The completion of the jurat was separate from the circulator’s certification. The fact that the jurat did not name the circulator did not detract from the efficacy of the certification. See Shipley v. Stephenson County Electoral Board (1985), 130 Ill. App. 3d 900, 906-07, 474 N.E.2d 905, 910; 2A C.J.S. Affidavits §33 (1972).

The trial court also found that the record did not contain any evidence of fraud. In other words, the record did not show that the circulators did not appear before their respective notaries. In oral argument before this court, Cintuc conceded that the record does not contain any evidence of fraud. However, Cintuc argued essentially that since the existence of fraud cannot be disproved, then we should presume that fraud is present.

Of course, this argument is error. The presumption in cases charging fraud is that all persons are honest. Fraud is not presumed; rather, it must be proved by clear and convincing evidence. (Bundesen v. Lewis (1938), 368 Ill. 623, 632, 15 N.E.2d 520, 524; McKennan v. Mickelberry (1909), 242 Ill. 117, 134, 89 N.E. 717, 722; Allenworth v. Ben Franklin Savings & Loan Association (1979), 71 Ill. App. 3d 1041, 1044, 389 N.E .2d 684, 687.) “If the motives and designs of the parties charged with fraud or collusion may be traced to an honest and legitimate source equally as to a corrupt one, the former explanation ought to be preferred.” McKennan, 242 Ill. at 134, 89 N.E. at 722.

The record in the case at bar does not contain any evidence of fraud. Therefore, “we conclude that the integrity of the political process was not in jeopardy, and that the oath provision of section 28 — 3 of the Election Code was substantially, if not literally, complied with by the circulators of the petitions.” Shipley, 130 Ill. App. 3d at 907, 474 N.E .2d at 910.

For the foregoing reasons, the order of the circuit court of Cook County is affirmed.

Affirmed.

JOHNSON and McMORROW, JJ., concur.


author: PRESIDING JUSTICE McNULTY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SILVESTRE VALDEZ, Defendant-Appellant.
    First District (5th Division)
    No. 1—90—0753
    Opinion filed June 19,1992.
    Rehearing denied July 15,1992.

      Daniel E. Radakovich and Hall & Kurz, both of Chicago (Kathryn Hall and Jerry B. Kurz, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Michael Latz, and Joseph P. Roddy, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE McNULTY

delivered the opinion of the court:

Following a jury trial, defendant Silvestre Valdez was convicted of three counts of possession of a controlled substance with intent to deliver and sentenced to concurrent terms of 25 years in the Illinois Department of Corrections. The issues on appeal are: (1) whether defendant was proven guilty beyond a reasonable doubt; (2) whether defendant was proven guilty beyond a reasonable doubt of possession with intent to deliver more than 900 grams of cocaine; (3) whether defendant was prejudiced by a police officer’s testimony of a confession by defendant that was not disclosed until the day of trial; (4) whether the trial court erred in refusing to instruct the jury on the lesser included offense of possession; and (5) whether defendant was improperly convicted of two counts of possession with intent to deliver where he simultaneously possessed these controlled substances.

The relevant facts are as follows. Officers Evans, Williams and Ramirez and Sergeants West and D’Antonio, Commander Risley and Lieutenant Kiley all testified to essentially the same version of events. According to their testimony, the Chicago police department began a surveillance of defendant in November 1988, in connection with his participation in the narcotics trafficking organization known as the Durango Pipeline. On December 2, 1988, the officers observed defendant go to a garage located at 24th Street and use a key to enter the garage. From there he proceeded to the Kensington area of Chicago. He then drove to a house at 3126 South Avers, where he entered through the front door. Defendant completed this same circuit on December 22, 1988, January 3, 1989, and January 6, 1989. According to the officers, defendant’s car was seen at the Avers address and the garage on 24th Street at least 20 times.

The police obtained a search warrant for defendant and the house on Avers and executed the warrant on January 11, 1989. The officers testified that when they arrived at the Avers house, they saw defendant put a key into the back door of the Avers house. As defendant started to open the door, the officers apprehended him. Officer Williams testified that he took defendant’s keys and defendant pointed out the key that opened the back door. After entering the house, Officer Williams entered the rear bedroom off the kitchen. In the middle of the room, he saw an open ironing board and on it, a fully loaded .357 magnum revolver and shoulder holster, some marijuana and a small black pouch containing five plastic bags of white powder. In a closet, he discovered an open cardboard box containing $72,800 in cash, at least 12 sets of keys and a large plastic bag of white powder. Officer Williams also discovered a tray of gold jewelry, including a bracelet with the name “Manuel” written on it.

Officer Evans entered the kitchen and saw a gun, a black shoulder holster, small packets of white powder and three manila envelopes containing marijuana. In the basement ceiling, the officers found two bundles of money. They found two beepers on defendant’s belt, and they also recovered two cellular phones, one which was ringing constantly.

The police supervisors then arrived and defendant told Sergeant West that the contraband found in the Avers house was “our stuff.” When Sergeant West mentioned the garage at 24th Street, defendant said that he rented the garage with a friend. Defendant told another officer that he rented the garage with Manuel Rivera. The officers testified that during the search when they asked defendant if there were drugs in the garage, defendant responded “yes, we have got some dope there.” Defendant then signed a consent form relative to the garage and also stated “there might be a load car sitting at Cermak and Harlem in the gas station in the driveway.” The officers observed no bruises or marks on defendant’s body and never heard defendant complain of any police abuse. They testified that there was no physical contact between the police and defendant, and defendant was not forced to sign the consent form.

-When the officers opened the door to the garage, they found a 1980 brown Cadillac with taped packages on the back seat. One of the packages was partially open, revealing approximately $120,000. In addition to the money, brown heroin was found on the front passenger seat and 53 packages containing a white powder were discovered in the trunk. The Cadillac had no battery.

Sergeant Joseph D’Antonio, an expert in the field of narcotics, testified to the street value of narcotics. He noted that the average price for a gram of cocaine with a 57% level of purity is $142.10. The kilogram found at the Avers house was 100% pure and valued at approximately $250,000. The value of all the cocaine seized in defendant’s case exceeded several million dollars. He noted that 70% of all cocaine in the United States comes from the Durango pipeline.

The parties stipulated that if the police chemist were to testify, she would testify that she weighed 53 bags containing a white powder which had a total weight of 50,350 grams. Sampling two of the bags, the chemist would have given her opinion that the white powder was cocaine with a purity level of 98.9%. Additionally, the chemist would have testified that the brown powdery substance found in the Cadillac was 25.10 grams of heroin. Lastly, the chemist would have testified that the white powder found in the bedroom of the Avers house was 953 grams of cocaine with a 100% purity level.

The first defense witness was Jaime Rivera, who testified that he met defendant in Durango, Mexico. Rivera testified that defendant did not live in the Avers house, but Rivera did visit with defendant in that house. According to recorded deed, Rivera had been the owner of Avers house since April 5, 1988, when he purchased the house with $30,000 in cash that he received from his brother Manuel. He did not know where Manuel got the money. Jaime did not live in the house. He identified the gold bracelet with the name “Manuel” on it as belonging to his brother. He stated that his brothers Eloy and Manuel lived in the Avers house, but that in January 1989, Beto Cordoba rented the Avers house and paid the utility bills.

Defendant testified that he never lived at 3126 South Avers. During November 1988 to January 1989, Manuel and Eloy Rivera lived at the Avers house. Defendant testified that he never owned or saw a beeper or cellular phone during the period from November 1988 to January 1989.

According to defendant, the police initially confronted him after he made a phone call at 31st and Pulaski Avenue on January 11, 1989. Sergeant West and Officer Williams approached him, with their guns drawn, and asked him about the Rivera family and about a gun. Sergeant West handcuffed defendant and put him in the back of the squad car. As they neared the Avers house, defendant heard the officers radio “Okay, everything’s set.” While driving to the Avers house, Sergeant West continued to question him, pointed a gun at his head and hit, kicked and choked him. Defendant claimed that the officers threatened and hit him for two hours. Defendant stated that the officers forced him to sign the consent form, telling him that if he did not sign, they would tear up his house, handcuff him to the steering wheel of his car and drive it off Lake Shore Drive into Lake Michigan. Defendant signed the consent form because West told him “You’re just a f — ing kid. Just sign this piece of paper and we will let you go.” Defendant testified that during the search of the Avers house, he repeatedly stated that he did not control the house and he did not own cocaine. He testified that when he was arrested, he did not have any keys to the Avers house. He testified that he had never been to the 24th Street garage until the officers took him there. He did not rent the garage or tell the police he did. He did not know there were narcotics inside the garage, and he never told the officers that the recovered drugs were his. Defendant testified that he had been at the Avers house about twice a week for the three months preceding his arrest. He had been thére with Jaime or Manuel Rivera to clean up the the basement that had recently been remodeled. Defendant testified that he had never been in the Avers house alone or overnight. He lived with his family in the Kensington area of Chicago.

On cross-examination, defendant testified that the police had a set of duplicate keys to his car and that is why his car was at the Avers house when he and the police arrived there. He testified although he was beaten by the police, he never mentioned this abuse to the police or anyone else.

Edger Tenorio testified that he owned the garage on 24th Street and in October or November 1988 he rented the garage to Manuel Villa. Tenorio testified that he had seen Villa only three times but he was able to identify a photograph of Manuel Rivera as the man who rented the garage. He testified that defendant was not the person to whom he rented the garage, and also that he had never seen defendant around the garage.

Defendant’s first contention is that the State failed to prove him guilty beyond a reasonable doubt of possession of a controlled substance with intent to deliver. To prove possession of a controlled substance, the State must establish that the defendant knew of the presence of the substance and the substance was in defendant’s immediate and exclusive control. (People v. Marshall (1987), 165 Ill. App. 3d 968, 521 N.E.2d 538.) Possession may be established by evidence of actual physical possession or constructive possession. (People v. Scott (1987), 152 Ill. App. 3d 868, 505 N.E.2d 42.) Constructive possession may be proved by showing that the defendant controlled the premises where the narcotics were found. (People v. Morrison (1988), 178 Ill. App. 3d 76, 532 N.E.2d 1077.) Questions of knowledge and possession are decisions for the trier of fact, and its findings will not be disturbed on review unless the evidence is so palpably contrary to the verdict or so unreasonable, improbable or unsatisfactory as to create a reasonable doubt of guilt. People v. Gallagher (1990), 193 Ill. App. 3d 566, 550 N.E.2d 255.

Our careful review of the record reveals sufficient evidence to permit the inference that the Avers residence was within defendant’s control. According to the testimony of several police officers, defendant was the only person at the residence when the officers executed the warrant, and they apprehended defendant as he attempted to enter the Avers house with a key. Furthermore, several officers observed defendant, on approximately 20 occasions, enter the Avers house and stay there for considerable periods of time. In addition, several officers testified that defendant admitted to having control over the Avers house and owning the seized cocaine. See People v. Chicos (1990), 205 Ill. App. 3d 928, 563 N.E.2d 893; People v. Griffin (1990), 194 Ill. App. 3d 286, 550 N.E.2d 1244.

Likewise, the record clearly reveals sufficient evidence to link defendant to the garage and the Cadillac at 24th Street. Police testimony revealed that defendant had been at the garage on 24th Street several times. Defendant had keys in his possession that fit both the garage and the Cadillac, and defendant admitted to the officers that he and a friend rented the 24th Street garage. Accordingly, the State proved beyond a reasonable doubt that defendant had control, not only over the Avers house, but also the 24th Street garage.

Defendant next maintains that because the State tested only 2 of the 53 bags of white powder seized from the Cadillac, the State failed to prove beyond a reasonable doubt that defendant was guilty of possession with intent to deliver 50,350 grams of cocaine. The stipulation here provided that if the chemist were to testify, she would testify that the 53 bags of white powdery substance weighed 50,350 grams. She would also testify that she randomly selected two of the bags from this group of 53, and that these two bags contained cocaine weighing 1,987.9 grams. While the chemist gave her opinion as to the weight of all 53 bags, it is clear from the stipulation that she only gave her opinion as to the contents of 2 of the 53 bags. For this reason, we are not bound by the decisions in People v. Williams (1990), 200 Ill. App. 3d 503, 558 N.E.2d 261 (wherein the stipulations were unclear as to whether chemist tested each individual packet or only a sample), and People v. Miller (1991), 218 Ill. App. 3d 668, 578 N.E.2d 1065 (wherein it was unclear whether the chemist tested each packet of the seized substance separately or tested them only after commingling the packets). Because the stipulations were unclear in those cases, the court held the defendants were bound by the stipulations and declined to presume that improper testing procedures were used. In the instant case, because it is clear from the stipulation that the chemist tested only two of the 53 bags for the presence of cocaine, we will examine the propriety of the State’s testing procedures.

Where there is a lesser included offense for possessing a smaller amount of a controlled substance, the weight of the substance containing a drug is an essential element of a possession charge and the weight of the substance containing the drug must therefore be proved beyond a reasonable doubt. (People v. Hill (1988), 169 Ill. App. 3d 901, 524 N.E.2d 604.) While the general rule in Illinois is that a chemist need only test a random sample in order to be qualified to render an opinion as to the makeup of the entire substance before him, this rule is not without limitation. (People v. Kaludis (1986), 146 Ill. App. 3d 888, 497 N.E.2d 360.) Where separate bags or containers of suspected drugs have been seized, a sample of each bag or container must be conclusively tested in order to prove that it contains a controlled substance. (People v. Young (1991), 220 Ill. App. 3d 488, 581 N.E.2d 241 (tests performed on 1 of 58 paper packets merely indicated that 1.86 grams tested positive for cocaine); People v. Hill (1988), 169 Ill. App. 3d 901, 524 N.E.2d 604 (chemist only conclusively tested 3 of 63 bags of white powder and therefore proved defendant guilty beyond a reasonable doubt of possessing only the 21.93 grams of powder contained in the three bags.)

It is, therefore, clear that in order to conclude that all 53 bags contained cocaine, the proper procedure would have been for the State to test each of the 53 bags of white powder. However, according to the record here, the chemist tested an amount of cocaine which well exceeded the Class X level of 15 grams. The chemist tested 2 of the 53 bags recovered from the Cadillac and found these bags to contain 1,987.9 grams of 98.9% pure cocaine. In addition, the chemist tested the bag containing white powder that was found in the bedroom at the Avers house and determined the bag contained 953 grams of 100% pure cocaine. Therefore, even if the other 48,362.1 grams of white powder were not cocaine, the State still proved defendant guilty beyond a reasonable doubt of two counts of possession with intent to deliver a Class X quantity of cocaine.

Defendant claims that because the jury was led to believe that all 53 bags contained cocaine, it was prejudiced against defendant. While it was improper for the State to comment that all 53 bags contained cocaine, defendant never objected to these comments and we do not believe that the jury’s verdict would have been any different had these errors not been made.

Nor do we find that defendant received an excessive sentence based on the court’s belief that all 53 bags of white powder contained cocaine. In People v. Connal (1990), 199 Ill. App. 3d 661, 557 N.E.2d 430, the defendant appealed his sentence on the ground that the trial court improperly considered, as a factor in aggravation, the total weight of all four packages seized, when only one package had been chemically tested and proven to contain cannabis. The court affirmed, finding that the amount tested, 7,491 grams, was an amount substantially greater than the 500-gram weight required for defendant’s conviction of a Class 2 felony. Moreover, the court noted that the trial court properly considered the factors in aggravation and mitigation and defense counsel alerted the court to the fact that the large amount of narcotics was not a factor that the court could consider in aggravation. Furthermore, the trial court never stated that the sentence imposed was based on evidence of 29,964 grams of cannabis rather than 7,491 grams tested, and the sentence imposed was less than the statutory maximum for this Class 2 felony.

Here, the trial court noted that defendant had control of a substantial amount of drugs and that “the facts of the case obviously loom high in determining what the proper sentence should be.” The trial court could have reached this same conclusion even if it considered only the 1,987.9 grams of cocaine contained in the two tested bags recovered from the trunk of the car, in addition to 953 grams of cocaine recovered from the house and 25.10 grams of heroin discovered in the front seat of the car. Nonetheless, it was not error for the trial court to take into consideration all 53 bags seized from the Cadillac. It is well settled in Illinois that the trial court, in determining a sentence, is not limited to information which would be admissible under the adversary circumstances of a trial. (People v. Williams (1992), 149 Ill. 2d 467.) In a sentencing hearing, a court is not bound by the usual rules of evidence, but may search anywhere within reasonable bounds for facts which tend to aggravate or mitigate the offense. (People v. Thomas (1981), 96 Ill. App. 3d 443, 421 N.E.2d 357.) Thus, in determining defendant’s guilt, it was not proper to conclude that the 51 untested bags contained cocaine, but in defendant’s sentencing hearing, the court may consider the likelihood that these bags contained cocaine as a factor in aggravation. We also find significant that in sentencing defendant, the trial court mentioned other factors in aggravation and mitigation, and while it could have sentenced defendant to a minimum sentence of 15 years and the maximum sentence of 60 years, defendant’s sentence of 25 years was at the lower end of the statutory range, and thus not excessive.

Defendant next advances the argument that he was prejudiced by surprise testimony from police officers, particularly Lieutenant Kelly’s testimony that recounted defendant’s admissions. Lieutenant Kelly testified at trial that defendant admitted he had rented the 24th Street garage and that a Cadillac containing drugs was inside the garage. In light of the fact that defense counsel had not been made aware of these confessions at the suppression hearing or at any time before trial, the trial court properly ruled that the State committed a discovery violation and struck Lieutenant Kelly’s testimony. (See Illinois Supreme Court Rule 412 (134 Ill. 2d R. 412(ii)) (the State shall disclose to defense counsel “any written or recorded statements and the substance of oral statements made by the accused *** and a list of "witnesses to the making and acknowledgement of such statements”).) Even if the State only learned of the officers’ statements the morning of trial, this does not excuse its failure to disclose this information. People v. Miles (1980), 82 Ill. App. 3d 922, 403 N.E.2d 587.

We recognize that in some cases, where credibility of the witnesses is the paramount issue, the potential impact of a previously undisclosed confession on the jury is incalculable and even a trial court’s admonition to the jury to disregard the surprise testimony may not suffice to overcome potential prejudice to the defendant. (People v. Robinson (1989), 189 Ill. App. 3d 323, 545 N.E.2d 268.) However, it is our opinion that in the instant case, the trial court’s admonishment to the jury to disregard Lieutenant Kelly’s testimony was sufficient to overcome the potential prejudice to defendant. Because Lieutenant Kelly’s testimony was merely cumulative of that of other officers and the jury was not only immediately instructed to disregard Kelly’s stricken testimony, but at the close of trial it was also instructed to disregard any testimony which the court had stricken, no prejudice resulted.

Defendant next maintains that the trial court erred in refusing to give the jury an instruction on the lesser included offense of possession of a controlled substance. It is well established that where there is evidence in the record which, if believed by the jury, would reduce the crime to a lesser included offense, an instruction defining the lesser offense should be given. (People v. Bembroy (1972), 4 Ill. App. 3d 522, 281 N.E.2d 389.) This rule is applicable even where a defendant’s theory of defense is inconsistent with the possibility that he is guilty of the lesser included offense. (Bembroy, 4 Ill. App. 3d at 525.) It is equally well established that a trial court’s refusal to give an instruction regarding the lesser included offense of possession of a controlled substance is not error where the evidence only supports delivery or intent to deliver, and the jury would only be justified in returning a verdict of guilty or not guilty on the greater offense. People v. Zipprich (1986), 141 Ill. App. 3d 123, 490 N.E.2d 8.

Here, although defendant denied possession altogether, we do not find that fact dispositive, but instead consider whether there is evidence in the record upon which the jury could have conceivably based a verdict of possession. While the officers observed defendant engaging in suspicious behavior by driving a certain circuit, the officer never saw him actually selling the narcotics. However, the evidence seized from the Avers house and the 24th Street garage does lead to a reasonable inference of intent to deliver narcotics. The inference of intent to deliver arises particularly from defendant’s possession of a quantity of contraband in excess of any amount that could be viewed as meant for personal use (People v. Schaefer (1985), 133 Ill. App. 3d 697, 479 N.E.2d 428), as well as the weapons and large amount of cash recovered. (People v. Tovar (1988), 169 Ill. App. 3d 986, 523 N.E.2d 1178.) Defendant does not dispute that the items seized may in fact lead to a conclusion that defendant was guilty of possession with intent to deliver, but instead contends that this determination should have been left to the jury.

In People v. Crenshaw (1990), 202 Ill. App. 3d 432, 559 N.E.2d 1051, the defendant argued that the trial court erred in refusing to instruct the jury on the offense of possession of a controlled substance because the evidence could also have supported a verdict on the lesser offense. An officer testified that a male passenger entered defendant’s vehicle and that defendant discarded packets containing a white substance when he exited his vehicle. The contents of the white packet were determined to be 11.2 grams of cocaine which were divided into 22 smaller packets. In addition, a loaded revolver and an unidentified amount of money were retrieved. The court noted that the sale and/or delivery of the controlled substance had not been directly observed by police and the presence of the loaded weapon in the vehicle or the division of the cocaine into 22 smaller packets was not conclusive evidence of an intended delivery. Instead, the court found that the division of 11.2 grams of cocaine into 22 packets could have been the form in which the substance was purchased by defendant rather than the form in which it was to be sold. Accordingly, since the evidence would have supported a verdict for the lesser offense, it was improper for the trial court to refuse defendant’s request for an instruction to the jury on the lesser offense of possession of a controlled substance.

In the instant case, because the delivery of the controlled substances was not directly observed by the officers, the trial court should have instructed the jury on the lesser included offense of possession. Nonetheless, based on the particular facts and circumstances of this case, we find this error harmless. While in Crenshaw the amount of drugs seized was not inconsistent with personal use, in the instant case, it is hardly reasonable to conclude the defendant would have 2,940.9 grams of cocaine and 25.10 grams of heroin, valued at well over $500,000, in his possession for personal use. Furthermore, defendant had possession of $192,800 in cash as well as weapons. Given the quantity and value of the seized drugs, plus the surrounding circumstances, we find it entirely unreasonable to believe the jury would have concluded that defendant had these quantities and values of illegal drugs in his possession for purposes other than the delivery. Therefore, while the trial court erred in refusing to instruct the jury on the lesser included offense of possession, this error was harmless beyond a reasonable doubt.

Defendant’s final contention is that one of his convictions must be vacated because the simultaneous possession with intent to deliver more than one controUed substance constitutes a single offense for which there can be only one conviction. Two of defendant’s three convictions involve narcotics that have been recovered from the Cadillac parked at the 24th Street garage. One conviction involved the cocaine recovered from the trunk of the Cadillac. (Defendant was found guilty of violating section 401(aX2) (Ill. Rev. Stat. 1987, ch. 56V2, par. 1401(aX2)).) The other conviction involved the heroin recovered from the front seat of the Cadillac. (Defendant was found guilty of violating section 401(aX2) (Ill. Rev. Stat. 1987, ch. 56V2, par. 1401(aXl)).) One of these convictions must be vacated since the simultaneous possession of more than one controlled substance constitutes a single offense supporting only one conviction. (People v. Manning (1978), 71 Ill. 2d 132, 374 N.E.2d 200; see People v. Banks (1992), 227 Ill. App. 3d 950, 954 (“Enumeration of the different types of substances in the Act serves only to define what is to be considered a controlled substance. *** The amounts of the substances designated simply provide a means to classify the type of punishment for that possession. The State’s argument, which seeks to have separate offenses under the Act defined by the substance possessed, is more properly directed to the General Assembly, not to the appellate court”).) Accordingly, one of defendant’s convictions for possession of a controlled substance seized from the car is vacated.

Affirmed in part; vacated in part.

LORENZ and MURRAY, JJ., concur.


author: JUSTICE GORDON

text:
    DUQUETTE T. RICE, Adm’r of the Estate of Rose M. Rice, Deceased, Plaintiff-Appellant, v. ROSITA BURNLEY, Adm’r of the Estate of William Robert Burnley, Deceased, Defendant (The Pyramid Condominiums Association et al., Defendants-Appellees).
    First District (5th Division)
    No. 1—90—1480
    Opinion filed June 19,1992.
    Rehearing denied July 15,1992.

      John J. Corbett, of Chicago, for appellant.
    O’Connor, Schiff & Myers, of Chicago, for appellee A. Barasch Enterprises, Ltd.
    Tressler, Soderstrom, Maloney & Priess, of Chicago, for other appellees.
   JUSTICE GORDON

delivered the opinion of the court;

Plaintiff Duquette T. Rice appeals from the trial court’s order dismissing four counts of her 10-count fourth amended complaint in this wrongful death and survival action. Plaintiff contends that the trial court erred in holding that defendants The Pyramid Condominiums Association (the Association) and A. Barasch Enterprises, Ltd., the managing agent, could not be liable for failing to ensure the installation and operation of smoke detectors in individual dwelling units. Plaintiff further contends that the trial court erred in holding that the Association and Barasch could not be held liable under the doctrine of res ipsa loquitur. The Association, in addition to arguing that the trial court properly dismissed the four counts, argues that this appeal must be dismissed because this court does not have jurisdiction to hear an appeal of the dismissed counts under Rule 304(a), under which this appeal is brought. (134 Ill. 2d R. 304(a).) We agree, and dismiss this appeal.

Facts

Defendant Rosita Burnley’s decedent, William Robert Burnley, owned unit 1A in the Pyramid Condominiums, located at 925 West Carmen Avenue in Chicago. The Association was a duly organized, not-for-profit corporation authorized to act for and on behalf of the unit owners of the Pyramid Condominiums. The defendant board of managers was the body responsible for the maintenance, administration, management, operation and use of the property. Defendant A. Barasch Enterprises, Ltd., was a corporation engaged in the business of property management, including the management of the Pyramid Condominiums.

On January 19, 1985, plaintiff’s decedent was an overnight social guest at the condominium of defendant Burnley’s decedent. A fire occurred in or near unit 1A in the early morning hours of January 19, and a large amount of smoke was emitted. Plaintiff’s decedent died from lung damage from inhaled smoke and soot, asphyxiation and severe burns suffered as a result of the fire.

Plaintiff’s initial complaint in four counts was filed on January 16, 1987. On September 9, 1987, the original complaint was ordered stricken with leave to amend. A first amended complaint, filed in October 1987, also included four counts. Two counts were ordered stricken without leave to amend while two were stricken with leave to amend.

Plaintiff’s second amended complaint was comprised of eight counts and was filed in October 1988. Defendants’ motions to dismiss were granted and plaintiff was granted leave to amend. The third amended complaint in 10 counts was filed in July 1989. Six counts were stricken and plaintiff was granted leave to file a fourth amended complaint, which she did on March 7, 1990, and which is the subject of this appeal.

The fourth amended complaint included 10 counts. In count I, a wrongful death claim, plaintiff alleged that William Burnley was negligent in failing to install and maintain a smoke detector in his condominium unit. Count II, also a wrongful death claim, was brought against the defendants other than Burnley and alleged negligence in failing to install and maintain smoke detectors in the common areas of the condominium building.

Count III was a survival action brought against defendant Burnley. This count’s allegations of negligence were the same as those made against Burnley in count I. Count IV was also a survival action, but against all defendants other than Burnley, and alleged the same negligent acts as in count II.

Counts V and VI were brought under a theory of res ipsa loquitur. Count V was a wrongful death action against Burnley, and count VI was a survival action against Burnley.

Count VII was brought under the wrongful death act, against all defendants other than Burnley. This count alleged negligence for failure to ensure the installation and maintenance of smoke detectors in Burnley’s condominium unit, 1A. Count VIII alleged the same negligent failure as did count VII against the same defendants, but was brought under the survival statute.

Counts IX and X were brought against all defendants other than Burnley and were based upon a theory of res ipsa loquitur. These counts complained of the defendants’ failure to install and maintain smoke detectors in the common areas of the condominium building. Count IX was brought under the Wrongful Death Act (Ill. Rev. Stat. 1989, ch. 70, pars. 1, 2), while count X was under the Survival Act (Ill. Rev. Stat. 1989, par. IIOV2, par. 27 — 6).

The Association and Barasch filed motions to dismiss counts VII through X pursuant to section 2 — 615 (111. Rev. Stat. 1989, ch. 110, par. 2 — 615). The motion was granted on April 18, 1990, in an order which provided there was “no just reason for delaying enforcement or appeal” of the order. This appeal followed.

Opinion

Prior to considering the merits of plaintiff’s arguments on appeal, we must address the question of our jurisdiction. (Prado v. Evanston Hospital (1979), 72 Ill. App. 3d 622, 390 N.E.2d 1270.) A judgment or order must be final for the appellate court to have jurisdiction over an appeal. (134 Ill. 2d R. 301; Prado v. Evanston Hospital, 72 Ill. App. 3d at 624.) A final order is one which “either terminates the litigation between the parties on the merits or disposes of the rights of the parties, either on the entire controversy or a separate branch thereof.” (Hull v. City of Chicago (1987), 165 Ill. App. 3d 732, 733, 520 N.E.2d 720. See also Freeman v. White Way Sign & Maintenance Co. (1980), 82 Ill. App. 3d 884, 403 N.E.2d 495.) When an order does not dispose of an entire proceeding, appeals are governed by Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)), which provides in part:

“If multiple parties or multiple claims for relief are involved in an action, an appeal may be taken from a final judgment as to one or more but fewer than all of the parties or claims only if the trial court has made an express written finding that there is no just reason for delaying enforcement or appeal.”

Although Rule 304(a) permits appeals from orders which do not dispose of an entire proceeding, the fact that an order contains the requisite Rule 304(a) language does not make a nonfinal order appeal-able. (Arachnid, Inc. v. Beall (1991), 210 Ill. App. 3d 1096, 1103, 569 N.E.2d 1273; Prado v. Evanston Hospital, 72 Ill. App. 3d at 624.) Thus, the question becomes whether the order dismissing counts VII through X of plaintiff’s fourth amended complaint disposed of the rights of the parties on a separate branch of the controversy. We conclude that it did not.

An order disposes of a separate branch of a controversy when the bases for recovery of the counts which are dismissed are different from those which are left standing. (Heinrich v. Peabody International Corp. (1984), 99 Ill. 2d 344, 348, 459 N.E.2d 935; Freeman v. White Way Sign & Maintenance Co., 82 Ill. App. 3d at 890-91.) This may occur when the grounds for recovery under the various counts arise from different statutes or common law doctrines or when different elements are required to recover under different theories. (Heinrich v. Peabody International, 99 Ill. 2d 344, 459 N.E.2d 935.) Where the bases of recovery for separate counts are different, dismissal of a count will be appealable, assuming the requisite Rule 304(a) finding has been made, because the dismissal disposes of a distinct branch of the controversy. (Prado v. Evanston Hospital, 72 Ill. App. 3d at 625.) However, the statement of a single claim, even in separate counts, does not warrant a separate appeal upon dismissal of one of the counts. (Arachnid, Inc. v. Beall, 210 Ill. App. 3d 1096, 569 N.E.2d 1273; Freeman v. White Way Sign & Maintenance Co., 82 Ill. App. 3d 884, 403 N.E.2d 495; Prado v. Evanston Hospital, 72 Ill. App. 3d 622, 390 N.E.2d 1270.) We must, therefore, examine the counts against these defendants which were dismissed and those which remain standing to determine if they comprise separate claims.

The case of Hull v. City of Chicago (1987), 165 Ill. App. 3d 732, 520 N.E.2d 720, is on point. There the plaintiff’s two-count complaint alleged various negligent acts or omissions by way of 12 separate sub-paragraphs in each count. The trial court dismissed 11 of the 12 sub-paragraphs of each count, and plaintiff appealed. The appellate court determined that plaintiff’s action involved a single claim of negligence. Although the plaintiff had stated her claim in several ways, by multiple subparagraphs, the complaint advanced only one theory of recovery — negligence. As a result, the court concluded that the dismissal of 11 of the 12 subparagraphs “did not determine the merits of a separate cause of action or terminate any litigation between the parties. The order of dismissal merely determined which allegations of negligence would be allowed to remain.” Hull v. City of Chicago, 165 Ill. App. 3d at 733.

It is of no consequence that plaintiff here has split her claim of negligence into separate counts rather than subparagraphs as in Hull. The statement of a single claim in multiple counts does not warrant a separate appeal upon the dismissal of one count. (Cunningham v. Brown (1961), 22 Ill. 2d 23, 174 N.E.2d 153; Freeman v. White Way Sign & Maintenance Co., 82 Ill. App. 3d at 890.) Here, counts II and IV, which are still viable, allege negligence for these defendants’ failure to have smoke detectors in the common areas of the condominium building. Counts VII and VIII, which were dismissed, also alleged negligence, albeit based on different acts or omissions, for defendants’ failure to ensure that there were smoke detectors in Burnley’s condominium unit. As in Hull, the plaintiff here has advanced only one theory of recovery — negligence. For the plaintiff to recover under either counts II and IV or the dismissed counts VII and VIII, she must establish the same elements: duty, breach, and injury proximately resulting from the breach. (Compare Freeman v. White Way Sign & Maintenance Co., 82 Ill. App. 3d at 891 (determination that separate claims existed based on comparison of elements necessary to establish a proper claim; claims of negligence and strict products liability constituted separate and distinct causes of action since different elements necessary to establish a proper claim in negligence action as opposed to a strict products liability action).) While the dismissed counts and the remaining counts deal with different acts or omissions, they advance the same theory of recovery — namely, negligence — and accordingly we conclude that the dismissal of counts VII and VIII did not determine the merits of a separate claim, and therefore is not a final order. See Hull v. City of Chicago, 165 Ill. App. 3d 732, 520 N.E.2d 720.

Counts IX and X, which were dismissed, are based upon the theory of res ipsa loquitur and concern these defendants’ failure to have smoke detectors in the common areas. Res ipsa loquitur, however, is not a distinct theory of recovery, but a rule of evidence applicable to a theory of negligence. (Prado v. Evanston Hospital, 72 Ill. App. 3d at 625. See also Russell v. Good Shepherd Hospital (1991), 222 Ill. App. 3d 140, 583 N.E.2d 672, relying on Prado.) “[T]he dismissal of the counts based on that theory of evidence {res ipsa loquitur] did not determine the merits of a separate cause of action {i.e., one for negligence) as that cause of action (negligence) was still pending ***.” Russell v. Good Shepherd Hospital, 222 Ill. App. 3d at 144.

In view of the fact that the four dismissed counts advance the same theory of recovery as do two of the remaining counts, the order of dismissal cannot be considered a final order and therefore is not appealable and we are without jurisdiction to consider this appeal.

Accordingly, for all of the above reasons, this appeal is dismissed.

Appeal dismissed.

McNULTY, P.J., and MURRAY, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LARRY CHILDS, Defendant-Appellant.
    First District (5th Division)
    No. 1—90—2065
    Opinion filed June 19,1992.

      Michael J. Pelletier, Martin Carlson, Martha V. Sackley, and Christopher M. Murphy, all of State Appellate Defender’s Office, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and James E. Fitzgerald, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE McNULTY

delivered the opinion of the court:

Defendant Larry Childs was indicted for the offenses of murder and armed robbery. He was found guilty of these offenses by a jury and sentenced to concurrent terms of life imprisonment for murder and 60 years for armed robbery. He appeals his conviction and sentence.

Two issues are presented for review: (1) whether the trial court erred in failing to apprise defense counsel of a question submitted by the jury and by sending an ex parte communication to the jury through a court bailiff during deliberations and (2) whether the trial court erred in refusing to answer a question from the jury concerning whether defendant could be found guilty of armed robbery and voluntary or involuntary manslaughter instead of murder. For the reasons set forth below, we reverse and remand for a new trial.

On February 4, 1987, Jerry Nichols was killed by a single gunshot wound to the abdomen. Defendant, a neighborhood friend, was arrested and charged with murder. At trial Childs testified that on the afternoon of Nichols’ death, Nichols had gone to Childs’ home to borrow money. He asked Childs to lend him $50. Nichols had asked Childs to lend him money several times in the past and had always repaid Childs. Childs loaned Nichols the money, and Nichols promised to repay it that same day. Nichols did not repay the loan that day as he had promised. That evening Childs went to the store where Nichols worked as a security guard to collect his money. On the way to the store Childs bought a BE gun from some children playing by a school near his mother’s house. Childs further testified that not only was Nichols a much larger man than himself, but also that Nichols had told him he had once killed a man and been in fights with other men. Childs had seen Nichols in a fight and had often seen him in possession of weapons.

When Childs arrived at the store where Nichols worked, the BB gun was in his pocket and he walked back to the meat counter, where Nichols stood. Childs told Nichols he needed his money and Nichols then walked toward the cash register. Childs followed him, thinking he was going to repay the money and did not remove the BB gun from his pocket.

The State’s principal witness, Ayyash, who was working at the cash register, testified he saw a gun in Childs’ hand, that Childs was behind and close to Nichols, and that Nichols, not Childs, said that it was a hold up.

Childs testified that when they arrived at the cash register, Nichols turned around and pointed a gun at him. Childs grabbed the gun barrel and wrestled with Nichols. After wrestling for four or five minutes, they fell over and the gun discharged. Ayyash testified that before the struggle, Childs had tried to open the cash register, but Nichols then turned on him and grabbed him in a bear hug, and the two men struggled to the ground. Nichols fell down first and Childs went down on top of him. Ayyash then testified that he heard a shot but did not see who fired it. Then Childs stood up with Nichols’ .38 caliber gun in his hand.

Childs testified that he picked the gun up from the floor because he thought Nichols was alive and did not want Nichols to shoot him. He then went toward Ayyash and asked for the money Nichols owed him. Ayyash testified Childs pointed the gun at him and demanded that he open the cash register, but that he was unable to do so. When Childs could not open the cash register, he slammed it on the floor, broke it open, and removed $30 or $40 from it. Ayyash testified that Childs then walked him over to the other cash register, ordered him to open it, took money from that register as well and then jumped over the counter and ran out of the store. Childs further testified that Nichols appeared conscious, he did not see any blood, and he then returned to his mother’s house, where the police arrived about 20 or 30 minutes later and arrested him.

Officer O’Donovan testified that after arriving at the scene and getting a description of defendant from another officer, he and three observers, who knew where a man fitting that description lived, went to defendant’s home. As he approached defendant’s home, defendant was leaving it, but upon seeing the officer approach, defendant unsuccessfully attempted to get back into the house. Defendant was then arrested and the officers seized a .38 caliber gun that defendant had thrown down as well as cash found on defendant and lying on the porch. Defendant was transported to the police station where he was identified in a lineup by Ayyash. The .38 caliber gun was later identified as Nichols’ gun, which had been used to shoot Nichols.

Detective Home and Assistant State’s Attorney Paula Becker testified for the State that Childs made oral statements to them in which he admitted entering the store to rob it. Childs testified that he made the statement because he was injured, tired and was repeatedly threatened and beaten by Detective Home. He further testified that he agreed to repeat the prepared statements made by Detective Horne to avoid further beatings. Detective Horne was present during Childs’ interview with Paula Becker.

On May 11, 1990, the trial was completed and the court gave the jury its instructions. The jury was given two packets of verdict forms. The first packet included four verdict forms: guilty of murder; guilty of voluntary manslaughter; guilty of involuntary manslaughter; and not guilty of murder, voluntary manslaughter and involuntary manslaughter. The second packet included two verdict forms: guilty of armed robbery and not guilty of armed robbery. No verdict form was submitted as to felony murder.

The jury then began its deliberations. During deliberations the jury posed a question to the court by means of a note given to the bailiff who was attending to the jury. The trial judge, who was having a meal with the State’s Attorneys at a restaurant, received a telephone call from the bailiff regarding the jury’s note. The note read: “Can the defendant be guilty of armed robbery and voluntary or involuntary manslaughter or must murder be the only option with armed robbery?” The trial judge without consulting the State’s Attorneys or defense counsel declined to answer the question and told the bailiff to tell the jury to read the instructions as to the law and to continue to deliberate. The judge then informed the State’s Attorneys of the question and answer he gave, but made no effort to contact defense counsel before telling the bailiff how to respond to the jury’s question, although defense counsel had given the court a phone number where he could be reached during jury deliberations.

Upon learning about what had transpired, defense counsel objected to the court’s failure to contact him about the jury’s question and to the content of the court’s response to it. The judge replied that he considered the question to be very difficult and confusing.

The jury returned verdicts of guilty of armed robbery and guilty of murder. Defense counsel filed a motion for new trial. At the sentencing hearing, the trial court sentenced Childs to concurrent terms of natural life and 60 years, stating: “I’m going to spare your life. I’m not going to give you the death penalty, but sir, on that murder, felony murder, I’m going to sentence you to a period in prison for the rest of your natural life without parole ***.” Defendant’s motion for new trial was denied and this appeal followed.

There is a long line of authority in Illinois that it is error for the trial court to have an ex parte communication with the jury after it has retired for deliberations without informing defense counsel. In People v. Harmon (1968), 104 Ill. App. 2d 294, 244 N.E.2d 358, the bailiff in response to a “buzz” from the jury room learned from the jury that it desired to ask certain questions. The bailiff indicated that he could not answer its questions and communicated its request to the judge together with a summary of the questions the jury had posed. The judge told the bailiff to tell the jury that it had heard the evidence and was to leave the law up to the judge. The bailiff communicated this to the jury and it resumed deliberations. Neither defendant nor his counsel was brought into court and told of this event until the jury had reached its verdict convicting defendant. The reviewing court determined that it was reversible error for a trial judge to hold any communication with the jury after its retirement to deliberate except in open court, citing People v. Beck (1922), 305 Ill. 593, 137 N.E. 454. The reasoning principally relied upon in the earlier Illinois cases is that the accused is entitled to a public trial and communication by the court with the jury outside defendant’s presence violates that constitutional guarantee.

There are several supreme court cases holding that the trial court’s failure to inform defense counsel of a jury’s substantive legal question is grounds for reversal regardless of the correctness of the court’s response. People v. McGrane (1929), 336 Ill. 404, 168 N.E. 321; People v. Beck (1922), 305 Ill. 593, 137 N.E. 454; Mound City v. Mason (1914), 262 Ill. 392, 104 N.E. 695; Chicago & Alton R.R. Co. v. Robbins (1895), 159 Ill. 598, 43 N.E. 332; Crabtree v. Hagenbaugh (1860), 23 Ill. 349.

In the case at bar, both the jury’s question to the court and the response to it were outside the presence of the defendant and his attorney. The jury inquired whether the defendant could be found guilty of armed robbery and voluntary or involuntary manslaughter or whether murder must be the only option with armed robbery. The trial judge stated on the record that this question confused him. However, he failed to further instruct the jury or inform defense counsel of the content of the jury’s question or the substance of his response until after the jury had reached its verdict. Defendant had a right to know the jury’s question so he could know of the source of the jury’s confusion and present his views upon the best manner in which to address the jury’s concerns.

The trial court has a duty to clarify an explicit question of law that a jury proffered to the court. In People v. Harmon (1968), 104 Ill. App. 2d 294, 244 N.E.2d 358, the appellate court said:

“ ‘[I]t is not only the right but the duty of the court to reinstruct on any question of law arising from the facts on which the jury say they are in doubt, and on which they ask further instructions. Where the jury make their difficulties explicit, the judge should clear them away with concrete accuracy; and where the question asked is not clear, it is the duty of the court to seek clarification.’ ” Harmon, 104 Ill. App. 2d at 301, 244 N.E.2d at 361, quoting 23A C.J.S. Criminal Law §1376, at 1000.

See also People v. Clark (1972), 52 Ill. 2d 374, 288 N.E.2d 363.

Further, the trial court may be required to instruct the jury even if the original jury instructions were proper or, as in the case at bar, agreed to by the parties. People v. Shannon (1990), 206 Ill. App. 3d 310, 564 N.E.2d 198; People v. Flynn (1988), 172 Ill. App. 3d 318, 323, 526 N.E.2d 579, 583; People v. Brouder (1988), 168 Ill. App. 3d 938, 947, 523 N.E.2d 100, 105; People v. Gathings (1981), 99 Ill. App. 3d 1135, 425 N.E.2d 1313 (reversible error where jury asked trial court whether it could find defendant guilty on two counts and not guilty on the third count and the court merely referred the jury to the original instructions); People v. Morris (1980), 81 Ill. App. 3d 288, 290, 401 N.E.2d 284 (the trial court’s admonition to follow the instructions was insufficient as there was no assurance that recourse to the instructions would resolve the confusion); People v. Land (1975), 34 Ill. App. 3d 548, 550, 340 N.E.2d 44, 46.

In Flynn, the jury submitted two legal questions to the trial judge. The judge told the jury to continue its deliberations. Unlike the instant case, counsel for the State and defense were present and agreed with the court’s response. The appellate court reversed, expressing its concern about the danger of permitting the jury to draw its own conclusions on the law to resolve the confusion.

The jury in the present case was left to its own devices to solve the confiision. Childs was charged with murder and armed robbery. The jury by its question concerning whether it could find him guilty of armed robbery and guilty of manslaughter or whether an armed robbery conviction mandated a conviction of murder indicated at least some jurors believed the latter. The trial judge admitted his confusion at the jury’s inquiry but nonetheless merely referred it back to the instructions and told it to continue deliberations, whereupon the jury returned a verdict of guilty of armed robbery and murder. It is possible the jury thought it had no alternative upon finding defendant guilty of armed robbery.

People v. Sanders (1984), 127 Ill. App. 3d 471, 469 N.E.2d 287, presents a fact situation almost identical to the case at bar. In Sanders, the defendant was charged with murder and armed robbery. During deliberations the jury asked the following question: “Ruling— if found guilty on one charge, is he, automatically, found guilty of the other charge? In other words, guilty on one and not guilty on the other.” Sanders, 127 Ill. App. 3d at 473, 469 N.E.2d at 290.

Unlike the instant case, in Sanders the court formulated its answer with the defendant and counsel present. It was: “ ‘In answer to your question, you have two forms of verdict, “Guilty” and “Not Guilty” for each of two charges. You must select one of the two forms of verdict for each of the two charges’ (Emphasis added.)” (127 Ill. App. 3d at 473, 469 N.E.2d at 290.) The court of review approved this response, stating that this answer was “a direct and unambiguous response to the question presented, indicating that the jury should choose the appropriate form for the charge independently of the form chosen for the other charge. This information, taken as a whole, would sufficiently dispel any confusion the jury had about whether defendant could be ‘guilty on one [charge] and not guilty on the other.’ ” (Sanders, 127 Ill. App. 3d at 474, 469 N.E.2d at 290.) A similar response by the court in the case before us would have been adequate to dispel the jury’s confusion.

A long line of Illinois cases cited above leads us to the conclusion that the trial court’s communication to the jury after it had begun deliberations was error. We are constrained, however, to consider the State’s contention that the error was harmless and authorities cited therefor.

In People v. Walker (1982), 91 Ill. 2d 502, 440 N.E.2d 83, the supreme court observed in passing that not every ex parte communication by the trial court with a jury after it had begun deliberations would automatically result in reversal of a jury verdict. That this comment was dicta is underscored by the fact that the supreme court cited the trial court’s ex parte communication with the jury together with other errors as grounds for vacating the defendant’s death sentence.

The second principal case relied upon by the State to demonstrate that the error was harmless is People v. Coleman (1991), 223 Ill. App. 3d 975, 586 N.E.2d 270. It is also not on point because the court found that defendant’s objection to the ex parte communication by the trial court with the jury was waived by failure to raise it in a post-trial motion. In Coleman, the jury had asked the trial court if it could find the defendant guilty on one offense and not guilty on the other. The trial court, without consulting the attorneys for the State or defendant, sent a note to the jury referring it back to the instructions for the answer. Therefore, the Coleman court’s observation that this communication was harmless to the defendant because the jury had received a set of instructions agreed upon was dicta.

Coleman relied heavily upon the supreme court’s decision in People v. Reid (1990), 136 Ill. 2d 27, 554 N.E.2d 174. In Reid, the jury asked a question of the trial court. The court conferred with counsel for the State and for the defendant who agreed that the court should tell the jury to reread the instructions. The court did so. Later the following day, when the jury had asked another question, defense counsel requested the court to provide a specific answer to the question asked the previous day. The State objected and the court refused. The supreme court held that the trial court’s action was proper since counsel had input at the time the first question was asked and agreed to the procedure that was followed. The Reid court cited People v. Clark (1972), 52 Ill. 2d 374, 288 N.E.2d 363, in support of its conclusion that while the jury is entitled to have its questions answered, failure of the trial court to do so does not always require reversal. In Clark, the jury indicated to the court that it had a question. The court communicated this to defense counsel by telephone and defense counsel advised the court not to answer any questions. Defense counsel later returned to court at the specific request of the judge. The judge indicated that he would entertain questions by jurors in the presence of all concerned. Defense counsel rejected the court’s suggestion. Under such circumstances the supreme court understandably held that the defendant could not complain of the failure of the trial court to answer questions which might have been propounded by the jury during deliberations.

It is a quantum leap to conclude as the Coleman court did from the Reid and Clark holdings that an ex parte written response by the trial court to an ex parte written question by the jury refusing to answer its question and referring it back to the instructions is harmless error. To the extent Coleman can be interpreted as supporting this proposition, we decline to follow it. In Reid and Clark the trial court sought and was given defense counsel’s input on the questions the jury had asked or wished to ask. Therefore, no prejudice occurred.

In the instant case, defendant is put to the unenviable task of demonstrating prejudice by an ex parte communication not of record between judge and jury outside the presence of defendant and counsel. The difficulty of that task was forcefully put by our supreme court in Crabtree. It said:

“We choose to assume, that what was said and done by the judge *** did not influence the jury in their deliberations, for we think that, independent of its effect upon the jury, the judgment should be reversed, for the simple reason that such an interview took place. If, in this case, no harm was actually done, and for that reason the verdict is allowed to stand, we open the door to the inquiry in all such cases, as to whether the party has been injured by the interview. Such an inquiry should not be tolerated. The policy of the law requires that all the proceedings of the court should be open and notorious and in the presence of the party, so that if he is not satisfied with it, he may take exceptions to it, in the mode pointed out by the law, and not be put to extraneous proof to show that an error has been committed in a secret proceeding, and, in fact, out of court.” Crabtree, 23 Ill. at 289-90.

Under the circumstances of this case, the State’s conclusion that the jury instructions were easily understandable is not readily apparent. The trial judge admitted his own confusion over the jury’s question. The question involved one of law and is one that often confuses a jury as the several cases cited above demonstrate. As in Sanders, a simple explanation by the trial court of the jury’s alternatives would have done much to allay the confusion. Although we have no quarrel with the general proposition that not every ex parte communication between judge and jury requires reversal, it does so require in this case. The jury's question was related to a substantive issue; neither defendant nor his counsel was informed of the communication by the court and given an opportunity to suggest an appropriate response to it. The jury’s question evidenced confusion and the court made no effort to dispel it.

For the reasons set forth above, we hold that the ex parte communication by the trial court to the jury without informing defense counsel was prejudicial error and remand for a new trial.

Reversed and remanded.

MURRAY and GORDON, JJ., concur.