text:
    THE DEPARTMENT OF PUBLIC AID ex rel. MARSHA STARK, Petitioner-Appellee, v. DAVID SCOTT WHEELER, Respondent-Appellant.
    Fifth District
    No. 5 — 91—0741
    Opinion filed August 16, 1993.
    James R. Conley, Jr., of Carmi, for appellant.
    Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and Daniel N. Malato, Assistant Attorney General, of Chicago, of counsel), for appellee.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

Petitioner, Illinois Department of Public Aid ex rel. Marsha Stark, filed this action against respondent, David Scott Wheeler, requesting that paternity of two minor children be established, that petitioner be reimbursed for public aid benefits, and that support and medical coverage be ordered for the children. The circuit court of White County determined that respondent was the father of the boys and entered an order for support. It is from this order that respondent appeals. Respondent contends that the action is barred under the doctrine of res judicata because a prior action by Stark was dismissed with prejudice. We affirm.

On February 22, 1977, Marsha Elliott Stark gave birth to twin boys, Bryan Lee Elliott and Craig Allen Elliott. Stark subsequently sought and obtained financial assistance from Morgan County Department of Social Services in the State of Colorado. In 1981, Stark filed an action in White County pursuant to the Revised Uniform Reciprocal Enforcement of Support Act (the Act) (Ill. Rev. Stat. 1981, ch. 40, par. 1201 et seq.) seeking an order of support against respondent. Stark was the sole petitioner named in that action. On March 25, 1982, the circuit court entered an order dismissing the action with prejudice. The record is unclear as to what grounds the circuit court used to dismiss the action.

On February 15, 1989, petitioner filed a uniform support petition in Saline County requesting establishment of paternity, reimbursement for public aid benefits and support and medical coverage for the minor children. The Washington County Department of Social Services in Colorado prepared the petition filed by petitioner pursuant to the Act. The circuit court of Saline County transferred the case to White County on respondent’s motion for change of venue. Respondent then moved to dismiss the action under the doctrine of res judicata, arguing that because the circuit court dismissed the 1981 action with prejudice, the 1989 petition should be dismissed. The trial court denied respondent’s motion to dismiss and respondent’s motion for interlocutory appeal on the issue. Subsequently, the trial court grantee petitioner’s motion requesting that paternity be established pursuant to blood tests. The certified blood-test results revealed that there was a 99.91% probability that respondent was the father of Craig Allen Elliott and a 99.95% probability that respondent was the father o: Bryan Lee Elliott. There was also uncontroverted evidence that Stark and respondent had sexual intercourse during the period of conception, and Stark further stated that she had sexual intercourse only with respondent during that time period. Based upon these facts, petitioner filed a motion for summary judgment, requesting the trial court to issue an order stating that respondent is the father of the twins, and directing that respondent pay child support and an order requiring the reimbursement of public aid. The trial court granted petitioner’s motion and entered a support order. The court found respondent to be the father of the children and ordered him to pay $175 per month in support.

Respondent contends on appeal that the dismissal of the 1981 petition with prejudice bars the present action under the doctrine of res judicata. The well-settled doctrine of res judicata provides that a fi nal judgment on the merits rendered by a court of competent jurisdic tion bars any subsequent actions between the same parties or thei privies on the same cause of action. (Simcox v. Simcox (1989), 131 Ill. 2d 491, 497, 546 N.E.2d 609, 611; Kinzer v. City of Chicago (1989) 128 Ill. 2d 437, 539 N.E.2d 1216.) Neither party questions the compe tency of the court’s jurisdiction. Under Supreme Court Rule 273 (13-Ill. 2d R. 273), an involuntary dismissal of an action operates as an adjudication upon the merits. Therefore, we are left with the question whether the Illinois Department of Public Aid is in privity with Marsha Stark.

Section 7(a) of the Illinois Parentage Act of 1984 (Ill. Rev. Stat. 1989, ch. 40, par. 2507(a)) provides, in pertinent part, that an action to determine the existence of a father-and-child relationship may be brought by the child, the mother, or a public agency which has provided financial support to the child. Each of these parties is bound by a different statute of limitations for bringing an action: the mother or custodian has two years from the child’s date of birth; a public agency has two years after it has ceased providing assistance; and a child has two years after attaining majority. (Ill. Rev. Stat. 1989, ch. 40, pars. 2508(a)(1)(a), (2).) In Department of Public Aid ex rel. Skelton v. Liesman (1991), 218 Ill. App. 3d 437, 578 N.E.2d 310, the court held that “the mere filing of a complaint by one or more of the parties able to bring an action under the Act does not in and of itself create or suggest privity with the nonfiling party or parties.” (Liesman, 218 Ill. App. 3d at 440, 578 N.E.2d at 311.) Liesman is part of a line of cases establishing the principle that children are not in privity with their mothers and thus not barred from bringing paternity actions under the doctrine of res judicata when their mothers have filed previous paternity or support actions. (See Simcox v. Simcox (1989), 131 Ill. 2d 491, 546 N.E.2d 609; People ex rel. Rice v. Graves (1989), 191 Ill. App. 3d 220, 547 N.E.2d 717; Mailer v. Cohen (1988), 176 Ill. App. 3d 987, 531 N.E.2d 1029.) Respondent in the present action argues that these cases are irrelevant because the children in the present action are not named parties, nor is there any evidence that the action was filed on behalf of the boys. Although we agree with respondent that the children are not parties to this cause and will not be construed as such, we do find the above-mentioned line of cases relevant to the present case. Just as those cases held that the children in paternity actions are not in privity with their mothers, we find that public agencies which have provided financial support are also not in privity with the mothers. We agree with the court in Liesman and hold that the 1981 action filed solely by Marsha Elliott (now Stark) does not create or suggest privity with the Illinois Department of Public Aid. Just as the interests of children are different from those of their mothers, the interests of public agencies providing aid are separate from the caretakers of the children. As we have decided that petitioner is not a privy of Marsha Elliott Stark, the doctrine of res judicata does not bar the present action.

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

Affirmed.

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


source: Caselaw Access Project

author: JUSTICE WELCH

license: Public Domain

text:
    CAROL MOFFITT, Adm’r of the Estate of Robert Moffitt, Plaintiff-Appellant, v. ILLINOIS POWER COMPANY et al., Defendants-Appellees.
    Fifth District
    No. 5 — 92—0133
    Opinion filed August 16, 1993.

      Victor R. Cook, of Cook, Shevlin, Ysursa, Brauer & Bartholomew, Ltd., of Belleville (Bruce N. Cook, of counsel), for appellant.
    Carl W. Lee and Gregory M. Skinner, both of Gundlach, Lee, Eggmann, Boyle & Roessler, of Belleville, for appellee Illinois Power Company.
    Harold A. Donovan, of Donovan, Rose, Nester & Szewczyk, P.C., of Belleville, for appellee Avnet, Inc.
    John D. Bauman, of Hinshaw & Culbertson, of Belleville, for appellee Viola Jansen.
   JUSTICE WELCH

delivered the opinion of the court:

This court granted plaintiff in the instant case leave to appeal pursuant to Illinois Supreme Court Rule 306 (134 Ill. 2d R. 306), on April 22, 1992. Plaintiff appeals from the January 27, 1992, order of the circuit court of St. Clair County. At issue on appeal is whether the circuit court of St. Clair County abused its discretion in granting the defendants’ motions to transfer plaintiff’s cause of action to Clinton County, Illinois, on grounds of forum non conveniens. We reverse.

Plaintiff, Carol Moffitt, administrator of the estate of Robert Moffitt, brought an action in the circuit court of St. Clair County on September 14, 1990, against defendants, Illinois Power Company, Avnet, Inc., and Viola Jansen, individually and as administrator of the estate of Roger Jansen. Plaintiff’s decedent and Roger Jansen were electrocuted on September 27, 1985, while attempting to move a CB antenna manufactured by Avnet, Inc., which came into contact with an Illinois Power voltage line at the residence owned by Viola Jansen in New Baden, Illinois. Plaintiff alleges in her complaint that Illinois Power was negligent in the manner it failed to insulate, maintain, inspect, and warn in regard to its voltage lines located near defendant Jansen’s home in New Baden. Av-net, Inc., is charged in the complaint with strict products liability in the design and manufacture of the CB antenna which is the subject of the lawsuit. Defendant Jansen, as administrator of her decedent’s estate, was charged with negligence in the manner and method in which Roger Jansen installed the antenna and directed the decedent to move said antenna to a different location. Defendant Jansen, individually, is charged with negligence in the manner and method in which she installed the antenna, directed the decedent to move the antenna, and failed to warn decedent about the high-voltage lines near the building on which the antenna was installed.

Defendant Jansen’s residence in New Baden is located in Clinton County, approximately 26 miles from the county seat in Carlyle, Illinois. New Baden is located only 13 miles from Belleville, Illinois, the county seat of St. Clair County.

Defendant Jansen filed a motion for change of venue, or in the alternative, a motion to transfer the action to the circuit court of Clinton County, on the ground of forum non conveniens, on October 12, 1990. In her motion defendant Jansen stated that the accident which is the basis of the complaint occurred in Clinton County, plaintiff’s decedent was a resident of Clinton County, and plaintiff and defendant Jansen are residents of Clinton County. Defendant Jansen contended that venue was not proper in St. Clair County because none of the transactions out of which the cause of action arose occurred there. Alternatively, defendant contended that there were no significant factors connecting plaintiff’s cause of action with St. Clair County and that trial in that county would hinder or prohibit her from producing witnesses and evidence necessary for the defense of the complaint. Defendant also contended that pretrial preparations and trial in St. Clair County would cause defendant to expend sums of money for expenses which could be avoided if suit were filed in a forum closer to the place where the alleged cause of action arose. Defendant Jansen sought a change of venue or transfer to Clinton County on the grounds of forum non conveniens.

Defendant Illinois Power filed a separate motion on November 16, 1990, to transfer venue to Clinton County on the basis of forum non conveniens. Illinois Power noted in its motion that plaintiff had originally filed a complaint regarding the cause of action for the death of her decedent in St. Clair County in cause No. 86 — L—1099. Illinois Power had filed a motion to dismiss or transfer based on forum non conveniens in that cause which was granted by the circuit court on September 3, 1987. Illinois Power further stated that discovery proceeded in Clinton County until plaintiff filed a motion to voluntarily dismiss, which was granted on March 20, 1990.

In addition to the points raised in defendant Jansen’s motion to change or transfer venue, defendant Illinois Power stated that all of the potential witnesses listed by plaintiff in her answers to interrogatories are residents of New Baden. A copy of plaintiff’s interrogatory answers was attached to the motion to dismiss or transfer venue. Illinois Power also noted that discovery undertaken earlier in the first cause filed by plaintiff indicates that the sources of proof are located in Clinton County. Illinois Power stated that public-interest factors strongly favor Clinton County as the proper forum for this cause since it is where the cause of action arose and where plaintiff, defendant Jansen, and plaintiff’s decedent reside or resided at the time of the accident. Defendant attached the affidavit of Preston Martin, a claims representative for Illinois Power Company, in support of the statements in defendant’s motion to dismiss or transfer venue.

Illinois Power also pointed out in its motion that the statistics of the State of Illinois Office of Court Administration, of which the court may take judicial notice, show that the case would proceed more expeditiously in Clinton County, and it attached a copy of the 1989 statistics to its motion. Defendant also attached the affidavit of James O’Donnell, a statistical analyst in the Administrative Office of the Illinois Courts, who stated that the 1989 statistics were the most recent and complete information available as of the date of the affidavit and that these statistics provide the number of law jury cases disposed of for cases over $15,000 and cases $15,000 or less, the number of and time lapse for all law jury cases terminated by verdict, and the average time lapse in months from the date of filing of the complaint to the date of termination by verdict. Defendant filed a memorandum of law in support of its motion to transfer venue based on forum- non conveniens.

Defendant Avnet, Inc., joined in defendant Jansen’s motion to change or transfer venue on October 23, 1990. Defendant Avnet, Inc., also filed a joinder in defendant Illinois Power’s motion to transfer venue based on forum non conveniens on November 21, 1990.

In response to the defendants’ forum non conveniens motions, plaintiff filed her affidavit on November 2, 1990. In said affidavit plaintiff stated that she .is employed in Belleville, Illinois., and that the regional headquarters of defendant Illinois Power is in Belle-ville, Illinois. Plaintiff also stated that New Baden is 13 miles from Belleville with a direct route on Highway 161, while it is 26 miles from Carlyle, Illinois, the county seat of Clinton County, and that St. Clair and Clinton are adjacent counties.

The hearing on defendants’ forum non conveniens motions was continued, by the court until December 3, 1991. Defendant Illinois Power filed a supplement to its motion to transfer venue based on forum non conveniens on December 2, 1991, citing two recently decided Illinois Supreme Court cases, Washington v. Illinois Power Co. (1991), 144 Ill. 2d 395, 581 N.E.2d 644, and Vinson v. Allstate (1991), 144 Ill. 2d 306, 579 N.E.2d 857, in support of its motion.

The court noted at the December 3, 1991, hearing that its docket was current, that only 10 cases out of 360 were two years old, that it was obviously more convenient for the potential witnesses to come to St. Clair County, and that there would be no jury viewing of the accident scene to deal with in this case. The court found that while all the equities were with the plaintiff’s choice of forum, it felt that after the supreme court’s decision in Washington it had no discretion in deciding forum non conveniens motions.

The court entered its order on January 27, 1992, granting defendants’ motions and transferring plaintiff’s case to Clinton County for forum non conveniens. The court made the following findings in its order:

“1. St. Clair County Courthouse is thirteen (13) miles from the accident scene in New Baden, Illinois, and Clinton County Courthouse is twenty-six (26) miles away from the accident scene.
2. Potential witness Randy Fochtman resides in New Baden, Illinois; Potential witness Frank Ponsler resides in Belle-ville, Illinois; Potential witness Lydall Kleeman resides in Belleville, Illinois.
3. Plaintiff, Carol Moffitt, resides in New Baden, Illinois.
4. Defendant, Viola Jansen, resides in New Baden, Illinois.
5. The Defendant, Illinois Power Company’s regional headquarters is located in Belleville, Illinois.
6. Although the Court’s docket is current and it is more convenient for witnesses to come to St. Clair County, the Court finds that the holding of Washington v. Illinois Power (Sept. Term, 1990) prevents the court from exercising its discretion over intrastate forum non conveniens.”

Plaintiff asserts on appeal that the trial court erred in failing to exercise its discretion by granting defendants’ motions to transfer based on the doctrine of forum non conveniens where the court determined as a matter of fact that its own venue was most convenient. Defendants respond that the trial court did not abuse its discretion in granting their motions to transfer venue because there were no significant connections between St. Clair County and plaintiff’s action, and defendants assert that trial should be had in Clinton County, where plaintiff resides and where the alleged accident occurred.

We initially note that the party seeking transfer of venue on forum non conveniens grounds has the burden of showing that plaintiff’s chosen forum will be unduly burdensome or inconvenient to him. (Lint v. Missouri Pacific R.R. Co. (1990), 200 Ill. App. 3d 1047, 1049, 558 N.E.2d 702, 703.) In Torres v. Walsh (1983), 98 Ill. 2d 338, 456 N.E.2d 601 (the case which established the doctrine of intrastate forum non conveniens), the supreme court emphasized six factors to be taken into consideration in making a decision on a forum non conveniens case: the availability of an alternate forum, the access to sources of proof, the accessibility of witnesses, the relative advantages and obstacles to obtaining a fair trial, the congestion of the court dockets, and the convenience of the parties. (Torres, 98 Ill. 2d at 351, 456 N.E.2d at 601.) It is also well established that the trial court must balance private-interest factors affecting the convenience to the litigants with the public-interest factors affecting the administration of the court. (Griffith v. Mitsubishi Aircraft International, Inc. (1990), 136 Ill. 2d 101, 105, 554 N.E.2d 209, 211; Bland v. Norfolk & Western Ry. Co. (1987), 116 Ill. 2d 217, 223-24, 506 N.E.2d 1291, 1294.) Private-interest factors to be considered are “ ‘the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive.’ ” (Torres, 98 Ill. 2d at 345, 456 N.E.2d at 604, quoting Gulf Oil Corp. v. Gilbert (1947), 330 U.S. 501, 508, 91 L. Ed. 1055, 1062, 67 S. Ct. 839, 843.) Relevant public-interest factors include the administrative difficulties caused when litigation is handled in congested venues, the unfairness of imposing jury duty upon residents of a county with no connection to the litigation, and an interest in having localized controversies decided locally. (Griffith, 136 Ill. 2d at 106, 554 N.E.2d at 211, citing McClain v. Illinois Central Gulf R.R. Co.. (1988), 121 Ill. 2d 278, 289, 520 N.E.2d 368, 372.) Our supreme court has also consistently held that a trial court is vested with broad discretion in ruling on a form non conveniens motion and that its decision in this regard will be reversed only if it is shown that the court abused its discretion in weighing the relevant considerations. Griffith, 136 Ill. 2d at 106, 554 N.E.2d at 211; Meyers v. Bridgeport Machines Division of Textron, Inc. (1986), 113 Ill. 2d 112, 118, 497 N.E.2d 745, 747.

We will first address the issue of whether the trial court erred or abused its discretion in granting defendants’ motion to transfer venue to Clinton County. Abuse of discretion means clearly against logic. (Daiber v. Montgomery County Mutual Fire Insurance Co. (1989), 191 Ill. App. 3d 566, 568, 548 N.E.2d 17, 19.) The question is not whether the appellate court agrees with the circuit court but whether the circuit court acted arbitrarily, without employing conscientious judgment, or whether in view of all of the circumstances the court exceeded the bounds of reason and ignored recognized principles of law so that substantial prejudice resulted. (Washington v. Illinois Power Co. (1990), 200 Ill. App. 3d 939, 942, 558 N.E.2d 509, 511, rev’d on other grounds (1991), 144 Ill. 2d 395, 581 N.E.2d 644.) We also note that error is committed when a trial court refuses to exercise discretion due to the incorrect belief that it has no discretion as to the question presented. People v. Queen (1974), 56 Ill. 2d 560, 565, 310 N.E.2d 166, 169, citing People ex rel. Chesapeake & Ohio Ry. Co. v. Donovan (1964), 30 Ill. 2d 178, 195 N.E.2d 634.

It is clear from our review of the hearing and the January 27, 1992, order that the trial court believed it had no discretion in this adjacent-county case to deny a motion to transfer venue based on forum non conveniens after the supreme court’s decision in Washington v. Illinois Power. In Washington the plaintiffs’ son was electrocuted when he came into contact with an uninsulated electrical line owned by the defendant, Illinois Power. Decedent’s mother witnessed the electrocution, and the complaint sought damages both for decedent’s wrongful death as administrator of his estate and, individually, for intentional infliction of emotional harm to the mother. Plaintiffs filed their complaint in Madison County although they and the decedent had lived in Bond County and the accident occurred on their property in Bond County. Venue was proper in Madison County because Illinois Power maintains an office in that county.

Illinois Power filed a forum non conveniens motion to transfer venue to Bond County alleging that trial would be more convenient in that county because of a possible jury view, court congestion in Madison County, and the fact that all witnesses, including plaintiffs, resided in Bond County. The plaintiffs responded with the affidavits of nine witnesses who stated that they would travel without subpoena to testify for plaintiffs in Madison County. The trial court denied defendant’s motion, and we affirmed, finding no abuse of discretion, because defendant failed to show exceptional circumstances or that the interests of justice required a transfer. We noted that there was a difference of only 35 minutes between the courthouses in question and that since Illinois Power maintains an office in Edwardsville, the Madison County seat, we could see no inconvenience to defendant in trying the case in Madison County.

In so ruling, we reasoned that under Torres, unless the balancing of the private- and public-interest factors strongly favored the defendant, the plaintiff should be allowed to exercise his choice in deciding what forum to bring the case, when venue is proper. We questioned whether a jury view would be utilized at trial, noting that the scene had radically changed, in that the tree decedent had been climbing at the time of the accident had been removed, and that photographs had been taken prior to the alteration. We also found no apparent practical problems that would make trial of a case easy, expeditious, and inexpensive so as to require transfer, and we noted that because the witnesses had sworn by affidavit to travel to Madison County without subpoena the relative ease of proof and cost of compelling attendance of witnesses would be no different than for Bond County. Of the public-interest factors, we noted that the report of the Administrative Office of the Illinois Courts did not take into account cases that are settled before trial and the availability of judicial personnel and facilities. We noted that Madison County has more judges and courtrooms than Bond County and that a trial court is in a better position to assess the burden posed by its own docket, citing Bishop v. Rockwell International Corp. (1990), 194 Ill. App. 3d 473, 476-77, 551 N.E.2d 690, 693. We also noted that Madison County as well as Bond County has an interest in the controversy because defendant - provides electrical power to both counties. We found that only the public-interest factor of jury duty weighed in favor of defendant.

The supreme court reversed our decision, however, holding that the trial court abused its discretion by denying the defendant’s forum non conveniens motion. Although noting that a plaintiff’s right to select the forum is a substantial one and that the choice of forum should rarely be disturbed unless the factors weigh strongly in favor of transfer, the court noted that plaintiff’s choice of forum is not entitled to the same weight or deference when the plaintiff does not reside in the county in which he files suit. Although the treating physicians in the case had offices which were closer to Madison County, the court noted that proximity was only one factor of convenience and that it did not weaken the considerations favoring trial in Bond County. Moreover, the court noted. that it had previously. held that undue weight should not be attributed to the fact that a treating physician or expert has an office in the chosen forum because plaintiff could thereby frustrate the forum non conveniens principle. The court further rejected plaintiffs’ argument that their Bond County witnesses had agreed to testify without subpoena in Madison County, noting that defendant’s witnesses were also located in Bond County and that there were practical problems associated with trial, such as continuances, which may require sending witnesses home to return at a later date and this extra expense should not be imposed on defendant. The court also noted that all sources of proof were located in Bond County and, although the tree where the accident occurred had been cut down, the propriety of viewing the scene is a decision to be left to the trial court.

Of the public-interest factors, the court noted that it had already taken notice of Madison County’s congested court docket in previous cases and stated that was borne out in that case by the fact that the cause was numbered 87 — L—1365 in Madison County while it would have been numbered 87 — L—16 in Bond County. It also noted that although any county in which Illinois Power provides service would have an interest in the outcome of this case, none of those counties had an interest greater than that of Bond County, where the accident occurred. Moreover, citing Gulf Oil Corp. v. Gilbert (1947), 330 U.S. 501, 91 L. Ed. 1055, 67 S. Ct. 839, the court noted that jury duty is a burden that ought not to be imposed upon the people of Madison County, a community which has no relation to the litigation.

The record in the instant case indicates that, as in Washington, the counties involved are adjacent, the accident occurred in the transferee county, and the plaintiff, defendant Jansen, and all potential witnesses (listed by plaintiff on her answers to defendant’s interrogatories) reside in the transferee county. Moreover, the most recently available statistics from the Illinois Office of Court Administration indicate that a great deal more law jury cases are tried to verdict in the chosen forum than in the transferee county and that the average time lapse in months for these cases in considerably longer in the chosen forum. It is small wonder that the trial court ruled in the face of these comparisons with the Washington case that it had no discretion to exercise in this case, in spite of the fact that it found St. Clair County to be more convenient than the transferee county. Indeed, one court has recently recognized that Washington v. Illinois Power stands for the proposition that accessibility alone is not enough to make a county convenient where there are no witnesses in the chosen forum. Trent v. Caterpillar, Inc. (1992), 234 Ill. App. 3d 839, 845, 599 N.E.2d 1145, 1149.

However, the operative facts of the instant case are distinguishable, in our opinion, from those in the Washington case, such that the trial court could properly have exercised its discretion in denying defendants’ forum, non conveniens motions. As the trial court so found, it is more convenient for all witnesses to come to St. Clair County for trial because its courthouse is located far closer to the New Baden witnesses and any witnesses from defendant’s regional headquarters in Belleville than the courthouse in Clinton County. Thus, if there were continuances; as the supreme court recognized in Washington, it would be less burdensome on the witnesses and less expensive on the parties, with respect to payment of witness mileage checks, to return to St. Clair County. Moreover, if a view of the premises were necessary it would be more convenient for the jury to travel to New Baden from the St. Clair County courthouse than from the courthouse in Clinton County.

We also note that, unlike the Washington case, the trial court specifically found that its docket was current (only 10 cases out of 360 were two years old). Moreover, St. Clair County would have a greater interest in the outcome of the litigation than Madison County had in the Washington case because Illinois Power’s regional headquarters are located in Belleville, Illinois. In addition, plaintiff’s complaint alleges that Avnet, Inc., the company which is charged with strict products liability for the manufacture of the CB antenna which was involved in the fatal accident involving plaintiff’s decedent, does business in St. Clair County. Therefore, the jury-duty factor which weighed in favor of defendant in the Washington case does not weigh heavily in favor of defendants in the instant case.

As noted above, the trial court did not exercise any discretion in granting defendants’ forum non conveniens motions in the instant case; it specifically found that after the supreme court’s holding in Washington it had no discretion in this regard. We believe that the trial court erroneously found that the Washington decision eliminates the trial court’s discretion to weigh the private- and public-interest factors in an adjacent-county case. Accordingly, this case must be remanded to the circuit court of St. Clair County so that it can make such a determination.

Reversed and remanded.

CHAPMAN, P.J., and MAAG, J., concur.

       The court’s order so recites; yet, as defendants point out, these prospective witnesses, who are residents of St. Clair County, are not listed in plaintiff’s answers to interrogatories and their names do not appear anywhere else in the record.


author: JUSTICE LEWIS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. LLOYD PERKINS, Defendant-Appellee.
    Fifth District
    No. 5 — 92—0415
    Opinion filed August 11, 1993.
    Rehearing denied September 14, 1993.

      Robert Haida, State’s Attorney, of Belleville (Norbert J. Goetten, Stephen E. Norris, and Gerry R. Arnold, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Daniel M. Kirwan and Dan W. Evers, both of State Appellate Defender’s Office, of Mt. Vernon, for appellee.
   JUSTICE LEWIS

delivered the opinion of the court:

The issue presented in this appeal is whether a defendant who is in jail for an offense for which he has asserted his fifth amendment right to counsel can be surreptitiously questioned by undercover agents regarding a second, unrelated offense. We hold that under the circumstances and facts of this case, the surreptitious questioning by undercover government agents violated defendant’s fifth amendment privilege against self-incrimination. U.S. Const., amend. V.

On Saturday, March 30, 1986, defendant was arrested for aggravated battery. While in jail over the weekend, an undercover law enforcement officer and undercover informant entered defendant’s jail cell and elicited incriminating statements from defendant regarding a 1984 murder. On February 18, 1987, defendant’s motion to suppress those statements was heard, and later, that motion was granted by the trial court. This court affirmed the trial court’s order (People v. Perkins (1988), 176 Ill. App. 3d 443, 531 N.E.2d 141), and the United States Supreme Court reversed the decisions of both courts in Illinois v. Perkins (1990), 496 U.S. 292, 110 L. Ed. 2d 243, 110 S. Ct. 2394, finding that the undercover agents were not required to give defendant Miranda warnings. The Supreme Court was not asked to rule upon the facts or issues presented in this appeal. Illinois v. Perkins (1990), 496 U.S. 292, 110 L. Ed. 2d 243, 110 S. Ct. 2394.

After the case was remanded to the trial court, defendant filed a second motion to suppress, alleging for the first time that he had asserted his right to counsel after his arrest on the aggravated battery charge and that the subsequent questioning by the undercover agents violated his sixth amendment rights. (U.S. Const., amend. VI.) However, on appeal defendant does not argue that his sixth amendment rights have been violated but only that his fifth amendment privilege against self-incrimination was violated when the undercover agents questioned him without an attorney present and without informing him that his statements could be used against him.

The trial court granted defendant’s motion to suppress, stating that defendant had testified that he had requested an attorney immediately upon his arrest for aggravated battery but the officers involved could not remember if defendant had requested an attorney. The court ruled that, considering all the testimony presented, the State had failed to meet its burden of proof regarding the voluntariness of defendant’s incriminating statements to the undercover agents. In its order granting the motion to suppress, the trial court quoted from McNeil v. Wisconsin (1991), 501 U.S. 171, 115 L. Ed. 2d 158, 111 S. Ct. 2204: “Once a suspect invokes the Miranda right to counsel for interrogation regarding one offense, he may not be re-approached regarding any offense unless counsel is present.” (Emphasis in original.) McNeil, 501 U.S. at 177, 115 L. Ed. 2d at 168, 111 S. Ct. at 2208, citing Arizona v. Roberson (1988), 486 U.S. 675, 100 L. Ed. 2d 704, 108 S. Ct. 2093.

The State again appeals the trial court’s order granting defendant’s motion to suppress, arguing that defendant’s fifth amendment privilege against self-incrimination was not violated and also that the trial court’s ruling that defendant had invoked his right to counsel was against the manifest weight of the evidence. Thus, we must reiterate the evidence presented at the hearings on defendant’s second motion to suppress. However, because the case has already been appealed to this court, we will reiterate only those facts brought out in the second motion hearing and we refer to our prior decision for a more complete recitation of the facts. People v. Perkins (1988), 176 Ill. App. 3d 443, 531 N.E.2d 141.

Defendant testified in his own behalf at the hearing on the second motion, something he did not do at the hearing on the first motion. Defendant testified that on the morning of March 30, 1986, a group of police came to his girl friend’s trailer and asked him to go to the police station with them so that they could ask him a few questions. Defendant went to the station voluntarily, and while he was there, a call came in over the radio that the officers who were conducting a consent search of the girl friend’s trailer had found a shotgun. Defendant was placed under arrest but was not given his Miranda warnings at this time. From the record of the case after the first motion to suppress, it appears that defendant was given his Miranda warnings upon arrival at the police station, before his arrest, by the officer who transported defendant to the station. Defendant testified that he stated he would like to have a lawyer, explaining that he had been arrested a few times before and knew he wanted a lawyer. Defendant further testified that the arresting officer then told defendant that if he wanted to “play hard ball” he was going to jail. Defendant was then transported to the Montgomery County jail. Defendant stated that he asked for an attorney more than once but was told that he would get an attorney on Monday when he went to court for his first appearance. Defendant said that he was not allowed to telephone an attorney, but if he had been allowed to do so, he would have called the public defender that was representing him at that time on another pending charge.

While in jail over the weekend, before his first appearance and before talking to an attorney, two men were placed into the cell with defendant. Defendant thought that both men were under arrest, just as he was. Defendant knew one of the men, Donald Charlton, from a prior prison sentence, during which he became acquainted with Charlton. The other man, John Parisi, who went by the pseudonym of Vito Bianco in jail, appeared to be a biker. Defendant testified that Charlton and Parisi had initiated the conversation with him, that he told them stories he had heard in prison to impress them, and that he did not realize that he was talking to anyone who would seek to use his statements against him.

On Monday, when defendant was taken to the courthouse on his first appearance for the aggravated battery charge, he was arrested on the murder charge, based upon the incriminating statements he had made to Charlton and Parisi. Defendant did not know that Parisi was an undercover government agent until this time. Immediately upon his arrest for murder, defendant again asserted that he wanted a lawyer, but defendant stated that the arresting officers continued to try to question him with no lawyer present. Defendant did not make any statement to the officers who arrested him on the murder charge. On cross-examination, defendant was impeached with a long history of criminal involvement.

After defendant’s testimony, the hearing was continued to allow the State to notify its witnesses. When the motion came on for hearing again, five officers testified for the State, three of whom had had very little contact with defendant as a result of his arrest for aggravated battery and did not report having any' conversations with him. Officer Jerry Cahill, of the Litchfield police department, testified that on the morning of March 30, 1986, he interviewed the victim of a fight at the hospital and then arranged the visit to the trailer where defendant was known to be staying. Cahill asked defendant to come to the police station to answer some questions, and defendant did so voluntarily. While another officer transported defendant to the station, Cahill conducted the search of the girl friend’s trailer and then went back to the station and told defendant that he was under arrest. Cahill did not give defendant his Miranda warnings at the time of his arrest but had previously instructed the officer who transported defendant to the station to do so “in case he would say something.” After defendant was placed under arrest, he stayed at the police station for about 15 to 20 minutes waiting for the jail officials to pick him up and take him to jail, during which time defendant’s girl friend and mother came in and talked to him.

Cahill testified that from the time he first saw defendant that morning at the trailer until the time he left to go to the jail, a total of about 30 minutes, defendant did not, in his presence," request an attorney. Additionally, although Cahill had arrested defendant previously some 5 to 10 times, he never heard defendant request an attorney in the past. On cross-examination, Cahill stated that he had originally intended to question defendant after he got back to the station, but he did not do so because he had already located the gun believed to be used in the aggravated battery and had interviewed witnesses, so that there was no longer any need to question defendant. Further, in his past experience with defendant, he had never known him to -talk or give any information to law enforcement officials, and as far as he could remember, defendant had not asked for an attorney in any prior arrest. Cahill admitted that he could not remember what the prior charges or circumstances of arrest were. Because defendant had been charged with aggravated battery, he was not entitled to have bond set until his first appearance on Monday after the Saturday arrest, so that defendant did not have any choice but to stay in jail over the weekend.

Jeff Davis, the Litchfield police officer who transported defendant from the trailer to the police station, testified that, at the station, he advised defendant of his Miranda rights, and defendant stated that he understood his rights. Davis could not recall specifically if defendant had requested an attorney during the time he was in defendant’s presence, approximately 30 to 45 minutes. Davis stated that although he did not recall defendant asking for an attorney, his customary practice was to make a report for any suspect who had done something unusual, such as request an attorney, and that he had not made any report concerning his contact with defendant.

We will first consider the State’s argument that the trial court’s finding that defendant had invoked his right to an attorney is against the manifest weight of the evidence. As the trier of fact in a suppression hearing, the function of the trial judge is to determine the credibility of the witnesses, the weight to be given their testimonies, and the inferences to be drawn from the evidence. (People v. Akis (1976), 63 Ill. 2d 296, 347 N.E.2d 733.) If evidence is merely conflicting, a court of review should not substitute its judgment for that of the trial judge. (People v. Spivey (1991), 209 Ill. App. 3d 584, 568 N.E.2d 327.) The trial judge’s decision on a suppression motion should not be overturned unless manifestly erroneous. People v. Sullivan (1991), 209 Ill. App. 3d 1096, 568 N.E.2d 447.

Based upon the record in this case, we are not prepared to say that the trial court’s finding that defendant had invoked his right to counsel was manifestly erroneous. To do so would be to substitute our judgment for his, which we decline to do, since the evidence upon which the decision was made was conflicting. While Officer Cahill testified that defendant did not assert his right to counsel, Officer Davis could not remember. Defendant testified unequivocally that he had asserted his right to counsel. As defendant pointed out in oral argument, to make a finding that the trial judge was manifestly erroneous on this issue of fact would amount to a finding that the defendant is inherently unbelievable, something we cannot do from the reading of a record on appeal alone. Furthermore, as the State has pointed out more than once, defendant was thoroughly impeached on cross-examination. Contrary to the State’s argument, we do not feel that the impeachment gives us the right to take the decision out of the hands of the trial judge, but we feel, instead, that the trial judge considered this evidence in making his decision and found in favor of defendant anyway. Thus, we hold that the trial court’s finding that defendant had asserted his right to counsel was not against the manifest weight of the evidence.

Upholding the trial judge’s determination that defendant had asserted his right to counsel brings us to the crux of this case: Where a suspect has asserted his fifth amendment right to counsel, can he be questioned by undercover agents on a separate, unrelated, and uncharged offense while in jail, without the presence of an attorney, and without an opportunity to waive his right to counsel? We feel that the actions of the undercover agents in this case violated defendant’s fifth amendment right to counsel, and therefore, we affirm the trial court’s order granting defendant’s motion to suppress.

The Miranda decision (Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602) sets forth the applicable fifth amendment guarantees. If a suspect in custody “indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no [further] questioning.” (Miranda, 384 U.S. at 444-45, 16 L. Ed. 2d at 707, 86 S. Ct. at 1612.) The Miranda decision was primarily concerned with typical incommunicado interrogation of individuals in a police-dominated atmosphere and the resulting self-incriminating statements made without a full warning of the individual’s constitutional right to remain silent. However, the Court did not limit its holding to high-pressure interrogation-room questioning only but went further to find that the privilege against self-incrimination “has always been ‘as broad as the mischief against which it seeks to guard.’ ” (Miranda, 384 U.S. at 459-60, 16 L. Ed. 2d at 715, 86 S. Ct. at 1620, quoting Counselman v. Hitchcock (1892), 142 U.S. 547, 562, 35 L. Ed. 1110, 1114, 12 S. Ct. 195, 198.) For a self-incriminating statement of a defendant in custody to be upheld, it must be voluntarily made, and it will not be considered voluntary if it would not have been made but for improper influences of the law enforcement officials. Miranda, 384 U.S. at 462, 16 L. Ed. 2d at 716, 86 S. Ct. at 1621, citing Bram v. United States (1897), 168 U.S. 532, 42 L. Ed. 568, 18 S. Ct. 183.

Miranda establishes that a person has a fifth amendment right to have an attorney present during any official questioning, if he so desires, and requires that the officials cease questioning a suspect immediately upon a request for an attorney. If the questioning continues after a suspect has requested an attorney, but without the attorney’s presence, then a heavy burden is on the government to show that the suspect knowingly and intelligently waived his right to counsel. Further, although any statement given freely and voluntarily without any compelling influences is admissible in evidence, “any evidence that the accused was threatened, tricked, or cajoled into a waiver will, of course, show that the defendant did not voluntarily waive his privilege.” Miranda, 384 U.S. at 476, 16 L. Ed. 2d at 725, 86 S. Ct. at 1629.

Later Supreme Court cases have provided more guidance on the issue of a defendant’s fifth amendment privilege against self-incrimination. “It is reasonably clear under our cases that waivers of counsel must not only be voluntary, but must also constitute a knowing and intelligent relinquishment or abandonment of a known right or privilege, a matter which depends in each case ‘upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.’ ” (Edwards v. Arizona (1981), 451 U.S. 477, 482, 68 L. Ed. 2d 378, 385, 101 S. Ct. 1880, 1884, quoting Johnson v. Zerbst (1938), 304 U.S. 458, 464, 82 L. Ed. 1461, 1466, 58 S. Ct. 1019, 1023.) Initially, then, in the particular facts of our case, the government’s procedure was calculated to deceive defendant, so that he would not know to whom he was making incriminating statements. Therefore, we do not find that defendant was given an opportunity to knowingly and intelligently waive his previously asserted right to have counsel present during questioning.

Edwards holds:

“[W]hen an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. We further hold that an accused, *** having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.” (Edwards, 451 U.S. at 484-85, 68 L. Ed. 2d at 386, 101 S. Ct. at 1884-85.)

We cannot say that defendant initiated the conversation with the undercover agents in this case because they concocted the elaborate scheme that put them into contact with defendant, and they first began talking to defendant and asked the question that began the incriminating statements: “Have your ever done anyone?” Additionally, even if defendant had sought out the undercover agents first, and even if he had begun the conversation that led to his incriminating statements, he could not have known that he was talking to the “authorities.” Rather, he merely “responded to further police-initiated custodial interrogation” (Edwards, 451 U.S. at 484, 68 L. Ed. 2d at 386, 101 S. Ct. at 1885), and a valid waiver cannot be found under those facts.

However, the custodial interrogation to which Edwards applied was regarding the same offense for which the defendant in that case was in custody. A factual situation more closely related to the case sub judice is Arizona v. Roberson (1988), 486 U.S. 675, 100 L. Ed. 2d 704, 108 S. Ct. 2093, wherein the Court held that the police cannot initiate interrogation of a suspect on a second, unrelated offense if the suspect does not have an attorney present, if he has previously requested an attorney for the first offense. The Court goes on to state that the fifth amendment privilege against self-incrimination, as opposed to the sixth amendment right to counsel, which does not attach until the suspect has been formally charged with a specific crime, is protected by having an attorney present to “counteract the inherent pressures of custodial interrogation, which arise from the fact of such interrogation and exist regardless of the number of crimes under investigation or whether those crimes have resulted in formal charges.” Arizona v. Roberson, 486 U.S. at 685, 100 L. Ed. 2d at 716, 108 S. Ct. at 2100.

Therefore, it is obvious that defendant’s sixth amendment right to counsel had not attached regarding the murder charge for which the undercover agents engaged him in conversation, but that his fifth amendment privilege against self-incrimination had attached, since the trial court found, and we cannot disagree, that defendant had asserted his fifth amendment rights prior to the undercover questioning. “Whether a contemplated reinterrogation concerns the same or a different offense, or whether the same or different law enforcement authorities are involved in the second investigation, the same need to determine whether the suspect has requested counsel exists.” Arizona v. Roberson, 486 U.S. at 687-88, 100 L. Ed. 2d at 717, 108 S. Ct. at 2101.

A final issue in our analysis of this case is whether the conduct of the undercover agents amounted to interrogation, for if it did not, then defendant’s fifth amendment privilege would not have been violated. In considering this issue, Arizona v. Roberson points to Rhode Island v. Innis (1980), 446 U.S. 291, 64 L. Ed. 2d 297, 100 S. Ct. 1682, for instruction regarding the nature of interrogation. Innis considered a factual scenario wherein the defendant was under arrest for murder and was being transported in a squad car to the police station. He had been advised of his Miranda rights, and he had requested an attorney. On the way to the police station, the two transporting officers engaged in a conversation with each other about a gun that was missing from the murder scene and how terrible it would be if one of the children from the school for handicapped children nearby found the gun and was hurt. The defendant immediately told the officers to turn the car. around so that he could take them to the gun. He then led them to the spot where the gun was hidden.

The Supreme Court upheld the trial court’s denial of the defendant’s motion to suppress even though the Court, found that the defendant was in custody at the time the incriminating statements were made and had invoked his right to counsel. The issue in the case was whether the defendant had been interrogated by the officers in violation of his fifth amendment right to remain silent until he had consulted with a lawyer. The Court specifically stated that it did not reach the question of whether he had waived his right to counsel, since it found that the officers’ conversation with each other did not amount to interrogation. In ruling, that the defendant had not been interrogated under the particular facts of that case, the Court in Innis declined to limit the Miranda decision to direct questioning but held instead that it applies as well to other, less direct techniques of persuasion. “To limit the ambit of Miranda to express questioning would ‘place a premium on the ingenuity of the police to devise methods of indirect interrogation, rather than to implement the plain mandate of Miranda.’ ” (Innis, 446 U.S. at 299 n.3, 64 L. Ed. 2d at 307 n.3, 100 S. Ct. at 1689 n.3, quoting Commonwealth v. Hamilton (1971), 445 Pa. 292, 297, 285 A.2d 172, 175.) The Court ruled that anytime a person is in custody, if he is subjected to express questioning or its functional equivalent, the Miranda safeguards are in place, and any “practice that the police should know is reasonably likely to evoke an incriminating response from a suspect thus amounts to interrogation.” Innis, 446 U.S. at 301, 64 L. Ed. 2d at 308, 100 S. Ct. at 1690.

The authorities in the case sub judice knew or should have known that the ruse they played on defendant was reasonably likely to evoke an incriminating response from him. Since defendant had invoked his right to counsel, the actions of the authorities amounted to the functional equivalent of direct questioning and violated the Supreme Court rulings construing the fifth amendment privilege against self-incrimination. Clearly, defendant would not have made the incriminating statements to the undercover agents “but for” the elaborate scheme engaged in by the agents. Because defendant had invoked his right to counsel, the actions of the authorities were improper and the statements made by defendant must be suppressed. (Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602.) That is not to say that the authorities could not have played out the same scam on defendant if he had not been in custody, because it seems clear that they could have done so without violating defendant’s constitutional rights. (See Hoffa v. United States (1966), 385 U.S. 293, 17 L. Ed. 2d 374, 87 S. Ct. 408 (wherein Hoffa was on trial for one offense, but not in custody, and the Court determined that Hoffa’s fifth amendment privilege against self-incrimination had not been violated by placement of an undercover informant in his hotel room during trial and that the statements obtained could be used against him in a second, unrelated trial).) For all of the reasons stated, we affirm the trial court’s order granting defendant’s motion to suppress.

Affirmed.

GOLDENHERSH and MAAG, JJ., concur.


author: JUSTICE RARICK

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID LEE ELY, Defendant-Appellant.
    Fifth District
    No. 5 — 91—0431
    Opinion filed August 4, 1993.
    Daniel M. Kirwan and E. Joyce Randolph, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.

      Kathryn Dobrinic, State’s Attorney, of Hillsboro (Norbert J. Goetten, Stephen E. Norris, and Rebecca Sanders, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE RARICK

delivered the opinion of the court:

Defendant, David Lee Ely, appeals from his conviction after a jury trial of aggravated criminal sexual assault and from the sentence of 30 years’ imprisonment imposed by the circuit court of Montgomery County. We affirm.

According to the evidence presented at trial, defendant assaulted the victim, defendant’s five-year-old daughter, on or about January 30, 1991. On February 4, 1991, the victim’s grandmother and two aunts arrived at the victim’s school to talk to her teacher. Apparently they believed the child had been sexually abused by her father and went to her school to inform them of their concerns. The victim’s teacher sat down with the victim later that day and read with her two books, “My Body is Private” and “The Private Zone.” Some 30 minutes later, the victim asked her teacher to join her in the “quiet corner” of the room. The victim picked up some puppets and began acting out with the teacher an argument between the daddy and mommy puppets. As they put away the puppets, the victim told her teacher: “Don’t tell my dad, but one time he asked me to suck his thing.” The victim then proceeded to tell her the circumstances of the incident. According to the victim, her mother was at work, and her sister was sleeping. She, the victim, was. sitting on the couch watching television. Her father turned off the television set, pulled down his jeans and underwear, and put his “thing” on her mouth. The victim also stated she told her mother, and her mother told her not to do it anymore. The teacher reported the matter to the Department of Children and Family Services (DCFS). One of their investigators, Jim Moore, came out to the victim’s school to interview her. Moore, using anatomically correct drawings, had the victim identify body parts. He then asked her if she had ever put her mouth on her daddy’s “nuts,” another term the victim had used in the interview. She answered yes and repeated the same story she had told her teacher. Defendant was then placed under arrest. Defendant proclaimed his innocence, claiming the victim had done all of this to get back at him for breaking his promise not to drink anymore.

On March 12, 1991, defense counsel filed a motion for a pretrial determination of the victim’s competency as a witness. On April 26, 1991, the State filed a motion to allow the victim’s testimony to be televised to the jury during trial. The motion to determine the victim’s competency was heard first. The hearing, conducted in chambers with both parents present, revealed the victim was competent to testify. She correctly identified colors and body parts and gave accurate information as to her age, school, and church. She also was able to correctly count up to 14, say the alphabet, and write her name. The victim further told the judge she would “go to Satan” if she lied.

At the motion to present the victim’s testimony to the jury via closed-circuit television, DCFS investigator Moore testified that he has interviewed between 700 and 800 minor victims of child abuse and neglect during his employment as an investigator, and that based upon his experience with the victim, he believed it would be difficult for the victim to come into a large courtroom and talk about sexual abuse by her father before 12 strangers. He opined it would be in her best interest to testify outside the jury’s presence in the judge’s chambers. Defense counsel argued the use of closed-circuit television would impinge on the jury’s ability to judge the child’s credibility. The court, after noting it already had a chance to observe the victim testify in chambers, ruled that closed-circuit television could be employed in light of the child’s age and Moore’s opinion.

At trial, the victim testified by closed-circuit television from the judge’s chambers. Present in chambers during her testimony were the victim’s mother, the prosecutor, the judge, the sheriff, defense counsel, defendant, and the technician operating the equipment. The victim initially demonstrated her competency to testify, including identifying body parts on anatomically correct drawings. She then proceeded, upon questioning, to repeat the same story of defendant sexually abusing her while she was watching television. On cross-examination, the victim reported that her father had broken his promise not to drink anymore and that one of her aunts told her her father was “nuts” because he had broken his promise. After her testimony, the court informed the jury that, prior to the television being turned on, the victim, upon seeing her father enter the chambers, asked her father to sit by her. The jury ultimately found defendant guilty of aggravated criminal sexual assault.

Defendant argues on appeal the court’s determination that the use of closed-circuit television was in the best interest of the victim deprived him of a fair trial and his constitutional rights, especially when that conclusion was based solely on a presumption that a certain class of witnesses would be traumatized if required to testify in open court. The State points out defendant has waived any possible error by failing to object at trial or raise the issue in a post-trial motion. While we agree defendant failed to preserve the matter for appeal (see People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124, 1130; People v. Friesland (1985), 109 Ill. 2d 369, 374, 488 N.E.2d 261, 262), we feel compelled to address the matter specifically to point out to defendant the lack of merit to his contentions.

Defendant alleges the trial court engaged in a presumption that all children of a certain age should not be required to testify in open court. The record, however, does not support defendant’s contention; in fact, the record clearly shows the court took great pains to avoid employing such a presumption. While it is true investigator Moore did comment on how children in general react to testifying in sexual abuse cases, he also specifically testified that he was familiar with the victim here, and that in his opinion, she would react negatively to testifying in open court before 12 strangers. He further opined it would be in her best interest to testify outside the presence of the jury. The trial court then specifically asked Moore:

“Your opinion that it would be in [the victim’s] best interest to testify in chambers, is that opinion based solely on the position that you take, that it would be better for all five-year olds to be able to testify in chambers or, in addition to that opinion, is it also particularly true in [the victim’s] case because you’ve worked with her and interviewed her and because of her particular situation you think it’s in her best interest?”

Moore replied his opinion was based on his observation of the victim and was particular to her. In making its decision to grant the State’s motion to use closed-circuit television pursuant to section 106A — 3 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1989, ch. 38, par. 106A — 3), the court stated:

“We also have the testimony of the very experienced Department of Children and Family Services Investigator saying, while he does believe generally it’s not in any child’s best interest to testify in front of a jury at that age, he also testified specifically about this particular young lady, this alleged victim, *** and said in her particular case he thinks it’s not in her best interest and testified as to his reasons why. I have had the benefit of hearing [the victim] testify. That does make this a little bit easier, incidentally, that I had that opportunity. I think the issue is an important one because in any case it’s the Court’s intention to give the defendant a fair trial — also, the State a fair trial, for that matter. I think the State, though, has carried whatever burden is upon the State to utilize this statute. I think it is in her best interest, based upon today’s hearing and also the hearing the Court has already conducted, to grant the motion.”

Clearly, the trial court applied no generalized presumption in determining that it was in the victim’s best interest to testify via closed-circuit television. Moreover, the trial court protected defendant’s right to a fair trial by describing to the jury portions of the victim’s behavior which the jury could not observe on the television monitor. Additionally, the court also complied with all statutory requirements for using closed-circuit television. The court initially determined the use of closed-circuit television was in the victim’s best interest. And, defendant was permitted to be present in chambers while the victim testified and was afforded the opportunity to fully cross-examine the victim. (Cf. People v. Bastien (1989), 129 Ill. 2d 64, 541 N.E.2d 670.) Finally, none of the State’s evidence in support of its motion pertaining to the victim’s best interest was contradicted. Under such circumstances, we cannot say the trial court abused its discretion in allowing the use of closed-circuit television. (See People v. Schmitt (1990), 204 Ill. App. 3d 820, 562 N.E.2d 377.) As the trial court properly granted the State’s motion, we find defendant was deprived of neither a fair trial nor his constitutional rights.

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

Affirmed.

CHAPMAN, P.J., and WELCH, J., concur.

       Section 106A — 3 has since been repealed and replaced by section 106B — 1 (725 ILCS 5/106B — 1 (West 1992)), effective January 1, 1992.


author: JUSTICE MAAG JUSTICE WELCH,

text:
    JOHN ZEDELLA, Plaintiff-Appellant, v. DANIEL J. GIBSON et al., Defendants-Appellees (Steven A. Grist et al., Plaintiffs; Daniel J. Gibson et al., Defendants).
    Fifth District
    No. 5 — 92—0361
    Opinion filed August 5, 1993.
    WELCH, J., dissenting.
    Don E. Prosser, of Gilbert, Kimmel, Huffman & Prosser, Ltd., of Carbondale, and Glenn A. Schwartz, of Schwartz, Freidin & Associates, of Chicago, for appellant.
    Paul R. Lynch and Melissa S. Ellison, both of Craig & Craig, of Mt. Vernon, for appellee Robert Gibson.
   JUSTICE MAAG

delivered the opinion of the court:

On October 25, 1991, the circuit court of Jackson County dismissed count II of the plaintiff’s first amended complaint and entered a finding pursuant to Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)). It is from that order that plaintiff appeals.

On April 4, 1990, the plaintiff, John Zedella, was riding as a passenger in an automobile driven by defendant Daniel Gibson. This vehicle, a 1987 Dodge Shadow, was involved in a collision with another vehicle, operated by Steven Grist.

Plaintiff filed suit against Daniel Gibson and Steven Grist for injuries allegedly received in the accident.

Later, the complaint was amended to add Robert Gibson as a defendant. Count II of the amended complaint claimed that Robert was the father of Daniel and was liable to the plaintiff on the theory that Robert had negligently entrusted to Daniel the vehicle he was operating at the time of the accident. Specifically, count II claimed that Robert was the owner of the vehicle and knew or should have known that Daniel was a reckless and dangerous driver and had committed the following traffic offenses:

1. 1983 — Daniel was convicted of four speeding violations.

2. 1984 — Daniel was convicted of illegal transportation of alcohol.

3. 1985 — Daniel was convicted of driving on the wrong side of the road, speeding, and operating a vehicle without proper equipment.

4. 1985 — Daniel pleaded guilty to driving under the influence of alcohol (DUI).

5. 1986 — Daniel’s driving privileges were suspended by the Secretary of State.

6. 1988 — Daniel was convicted of disregarding a traffic light and speeding.

7. 1989 — Daniel was involved in a one-car accident in New Orleans, Louisiana.

Count II went on to state that despite this knowledge, Robert had cosigned for a purchase-money loan on the Dodge Shadow and provided guarantees essential to the vehicle’s purchase. Finally, it was alleged that Robert had arranged and paid for insurance on the vehicle. The complaint alleged that by virtue of these acts possession and control of the vehicle being operated at the time of the accident had been negligently entrusted to Daniel.

Robert filed a motion to dismiss under section 2 — 619 of the Civil Practice Law. (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 619.) This motion was supported by an affidavit signed by Robert. The motion to dismiss prayed for dismissal of count II premised on the claims that parents are not liable for the torts of their adult children; that as co-owners both Daniel and Robert had equal rights to possession of the vehicle and, therefore, Daniel could not legally be deprived of the vehicle’s use; and that at the time of the accident the vehicle was not “under the control” of Robert and so he could not be liable. In the alternative, the motion alleged that since title was taken to the vehicle in May 1987, those incidents occurring in 1988 and 1989 were irrelevant.

The affidavit stated that Robert was Daniel’s father. At the time of the accident Daniel was 23 years old, resided in Carbondale, and was enrolled as a student at Southern Illinois University. The affidavit went on to state that in May 1987 Robert had cosigned a loan for Daniel on the Dodge Shadow to enable Daniel to obtain financing. The vehicle was titled in the name of both Daniel and Robert. Occasionally, Robert made insurance payments on the vehicle for Daniel. Finally, the affidavit stated that at the time of the accident Robert resided in Wisconsin.

Prior to the hearing on the motion to dismiss, Robert Gibson’s discovery deposition was made a part of the record. Robert admitted in his deposition that he was aware prior to the May 1987 vehicle purchase that Daniel had been convicted of DUI, that Daniel had received multiple speeding tickets, and that his driving privileges had been suspended for excessive violations.

The record also indicates that Daniel’s driver’s license had been reinstated at the time of the vehicle purchase.

After considering this record and arguments of counsel, the circuit court granted Robert’s motion to dismiss count II.The sole issue on appeal is whether the trial court erred in granting the motion to dismiss.

Prior to addressing the main issue in this case, we believe that we must again caution counsel to properly identify the motion they are filing. In this case the motion to dismiss is identified as being a section 2 — 619 motion. However, the motion, the supporting affidavit, the deposition transcript, and other matters of record smack of the flavor of not only a section 2 — 619 motion but also a motion to dismiss pursuant to section 2 — 615 and a summary judgment motion under section 2 — 1005 of the Civil Practice Law. (Ill. Rev. Stat.. 1991, ch. 110, pars. 2 — 619, 2 — 615, 2 — 1005.) These “hybrid motions” are improper, and an order granting such a motion may be subject to reversal if prejudice to the nonmovant results. (Wilde v. First Federal Savings & Loan Association (1985), 134 Ill. App. 3d 722, 480 N.E.2d 1236.) In this instance, plaintiff did not object to the “hybrid” nature of the motion, and we perceive no prejudice, so we will address the merits. However, counsel are urged to read Barber-Colman Co. v. A & K Midwest Insulation Co. (1992), 236 Ill. App. 3d 1065, 603 N.E.2d 1215, for a thorough discussion of the difference between the various motions. See also Janes v. First Federal Savings & Loan Association (1974), 57 Ill. 2d 398, 312 N.E.2d 605.

The plaintiff claims that Robert Gibson is liable to him in negligence because Robert facilitated the purchase of the vehicle Daniel was operating at the time of the collision. Plaintiff argues that by cosigning for the purchase money loan on the Dodge Shadow and assisting with insurance payments, coupled with the virtual surrender of the vehicle to Daniel Gibson, Robert Gibson effectively entrusted to Daniel the control of the vehicle. Plaintiff further argues that this amounts to a negligent entrustment given Robert’s prior knowledge of Daniel’s driving record.

Robert Gibson responds that no cause of action for negligent entrustment can be stated under the facts of this case since as co-owners Daniel and Robert had equal rights to use and operate the vehicle. Citing Barth v. Massa (1990), 201 Ill. App. 3d 19, 558 N.E.2d 528, Teter v. Clemens (1986), 112 Ill. 2d 252, 492 N.E.2d 1340, and the Restatement (Second) of Torts §308, at 100 (1965), Robert maintains that an essential element of the negligent entrustment doctrine is lacking. Specifically, he argues that as co-owner with his son Daniel, he had no right to “control” or limit Daniel’s use of the car.

Plaintiff acknowledges that the issue of whether one co-owner of a vehicle can be liable for negligently entrusting the vehicle to his co-owner is a matter of first impression in Illinois. He relies, however, on the case of Mettelka v. Superior Court (1985), 173 Cal. App. 3d 1245, 219 Cal. Rptr. 697, as authority for the viability of such a claim.

In Mettelka, a father and son were co-owners of a vehicle. The plaintiff sought leave to amend the complaint to allege a negligent entrustment cause of action against the father. Leave to amend was denied and the plaintiff appealed. On appeal the order denying leave to amend was reversed. The appellate court ruled:

“[T]he mere fact of co-ownership does not prevent one co-owner from controlling use of the vehicle by the other co-owner. Thus, where, as here, plaintiff alleges that one co-owner had power over the use of the vehicle by the other and that the negligent co-owner drove with the express or implied consent of such controlling co-owner, who knew of the driver’s incompetence, the basis for a cause of action for negligent entrustment has been stated.” Mettelka, 173 Cal. App. 3d at 1250, 219 Cal. Rptr. at 700.

Robert urges us to disregard the decision in Mettelka. He argues that under Illinois law one co-owner cannot deprive another co-owner of the use or possession of the jointly owned property. The cases of Clark v. Covington (1982), 107 Ill. App. 3d 845, 438 N.E.2d 628, and Massman v. Duffy (1947), 333 Ill. App. 30, 40, 76 N.E.2d 547, are relied upon for this proposition.

The elements of a cause of action for negligent entrustment are as follows:

1. there must be a negligent entrustment, and

2. the recklessness or inexperience of the one who received control of the entrusted instrument must be a proximate cause of the injury.

Allstate Insurance Co. v. Panzica (1987), 162 Ill. App. 3d 589, 515 N.E.2d 1299.

“To prevail on a theory of negligent entrustment the plaintiff must show that the defendants entrusted a dangerous article to another whom they know, or should know, is likely to use it in a manner involving an unreasonable risk of harm to others.” (Barth, 201 Ill. App. 3d at 27, 558 N.E.2d at 533.) The briefs of the parties discuss at length the issue of “control” and whether one co-owner may limit the use of a vehicle by his co-owner. Lacking is any discussion of whether there was an “entrustment” and if so when it occurred. The word “entrust” is defined to mean:

“to commit something to another with a certain confidence regarding his care, use, or disposal of it.” (Emphasis added.) Black’s Law Dictionary 478 (5th ed. 1979).

In this case, it is undisputed that, absent the financial assistance from Robert, Daniel would have been unable to purchase the Dodge Shadow he was driving at the time of the accident. Robert had total “control” over whether he would assist his son in obtaining possession of the vehicle. When asked to assist with financing, Robert could have said “No.” We believe that this power, the power to prevent acquisition of the vehicle, is sufficient to satisfy the control aspect of the negligent entrustment doctrine. Assuming arguendo that Robert did not have the right to prevent Daniel’s use of the car after co-ownership was established, he nevertheless had the right never to enter into the relationship.

Moreover, in light of Robert’s assistance with the purchase and his surrender of possession to Daniel, we believe that there was an entrustment under the definition set forth above. We need not decide in resolving this appeal whether, under different facts, Illinois law would recognize a negligent entrustment cause of action against a nonoperating co-owner of a vehicle. We do hold, however, that under the facts as pleaded in count II of the first amended complaint a cause of action has been stated. The additional verified materials filed in support of and opposition to the motion to dismiss do not alter this conclusion.

Accordingly, the order dismissing count II of the plaintiff’s first amended complaint is reversed, and the cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

CHAPMAN, P.J., concurs.

JUSTICE WELCH,

dissenting:

I respectfully dissent. The majority wants to make new Illinois law based on the California case of Mettelka v. Superior Court (1985), 173 Cal. App. 3d 1245, 219 Cal. Rptr. 697, a case that extends negligent entrustment to co-owners. It should be noted that Mettelka is based largely on a statute, section 17150 of the California Vehicle Code, setting out liability to “every owner of a motor vehicle *** for death or injury to person or property resulting from a negligent or wrongful act or omission in the operation of the motor vehicle *** by any person using or operating the same with the permission, express or implied, of the owner.” (Cal. Vehicle Code §17150 (Deering 1984).) Illinois has no such statute.

In the instant case, the majority says: “absent the financial assistance from Robert, Daniel would have been unable to purchase the Dodge Shadow he was driving at the time of the accident.” (248 Ill. App. 3d at 781.) Thus, the majority reasons, Robert had total “control” over whether he would assist his son in obtaining possession of the vehicle. The majority concludes that Robert’s failure to “just say no” is sufficient to satisfy the control aspect of the negligent entrustment doctrine. This is a real stretch and a novel theory for a finding of control.

This is also an apparent attempt to enlarge the defendants’ pool by creating this new policy. As the court stated in Fugate v. Galvin (1980), 84 Ill. App. 3d 573, 406 N.E.2d 19:

“The fortuitous circumstance of one driver’s inability to pay for damages he has caused should not be a reason to open new arenas of liability in search of perfect compensation schemes. *** The policy of requiring individuals to take responsibility for their own acts militates against the creation of a new duty.” (Fugate, 84 Ill. App. 3d at 577, 406 N.E.2d at 22.)

Under the reasoning of the majority, where do we stop? Who else should have said no to the adult co-owner in the instant case: the bank, the dealer, the Secretary of State? Moreover, as a matter of public policy, how does one who co-signs or, as the majority says, fails to say “no” for an adult co-owner insure against this newly created liability?

The rule in Illinois regarding joint ownership is well established: each joint tenant is entitled to use and enjoy joint tenancy property as though he were sole owner thereof, subject to the right of his cotenant. (Clark v. Covington (1982), 107 Ill. App. 3d 845, 847, 438 N.E.2d 628, 629.) Under Illinois law, Robert did not have the right to prevent Daniel from the use of the car after co-ownership was established. With this opinion, the majority has not only changed joint tenancy law as it relates to the ownership rights of cotenants, but has also expanded the law of joint tenancy as it relates to the duties of the co-tenant over the tenancy property. For example, must a husband who jointly owns a vehicle with his wife now take the keys away from his wife after she has an accident for fear of liability for negligent entrustment if she has another accident?

In Tosh v. Scott (1984), 129 Ill. App. 3d 322, 472 N.E.2d 591, the reviewing court affirmed the dismissal of a negligent entrustment complaint brought against a father, for injuries resulting from an automobile accident involving the father’s adult son. The plaintiff alleged in her complaint that the father negligently sold the automobile to his son, knowing that he did not have a valid driver’s license, that he had a severe and extreme drinking problem, that he had been convicted on at least three prior occasions of driving under the influence of alcohol, and that there was a reasonable likelihood that the son would operate that vehicle while under the influence of intoxicating liquor. The court held that the cause of action could not be supported because an essential element of the negligent entrustment case is the defendant’s ownership or right to control the vehicle and this element was missing in that case. Under the reasoning of the majority in the instant case, the father in Tosh would have been liable because the father had the power to prevent the acquisition of the vehicle by refusing to sell it to his son who had prior convictions for reckless driving and DUI.

I would also find in the instant case that, because Daniel and Robert had equal rights to possession of the vehicle and Robert had no legal right to deprive Daniel of the vehicle’s use, the cause of action for negligent entrustment could not be supported because Robert had no right to control Daniel’s use of the vehicle. For the above reasons, I would affirm the October 25, 1991, order of the circuit court of Jackson County dismissing count II of plaintiffs’ first amended complaint.