author: JUSTICE GREEN

text:
      In re ESTATE OF BERTHA M. MARTIN, Deceased (Douglas Olivero et al., Devisees-Appellants, v. La Verne M. Connell et al., Respondents-Appellees).
    Fourth District
    No. 4-89-0978
    Opinion filed August 30, 1990.

      Louis E. Olivero, of Peru, for appellants.
    L. Keith Hays, Jr., of Monticello, for appellee Estate of Bertha Martin.
    Garry W. Bryan, of Clinton, for appellees Láveme M. Connell and Joanne Nickelson.
   JUSTICE GREEN

delivered the opinion of the court:

This appeal is a continuation of a dispute concerning whether devisees under a will should be required to pay money to the estate to cover payment of expenses of administration and Federal estate taxes. The dispute was previously before us in the case of In re Estate of Martin (1987), 162 Ill. App. 3d 638, 515 N.E.2d 1312 (Martin I). The decedent died July 2, 1983. Her will was admitted to probate by the circuit court of Piatt County on July 10, 1983. A daughter, Phyllis Joanne Nickelson, was named and has served as executor. During the course of administration, on July 11, 1986, the executor filed a petition to require advancement by the devisees of sufficient funds to pay the foregoing expense and taxes. After a hearing, the circuit court entered an order on February 3, 1986, finding the amount of a deficit which existed and providing for contribution by the devisees.

Among the devisees are Douglas, David, Philip, and Marcia Olivero (Olivero devisees). They are the children of Mary Louise Olivero, a daughter of the decedent who took nothing under the will. However, the Olivero devisees received, in equal undivided shares, a tract of the decedent’s farmland. The February 3, 1983, decree ordered them to pay a high rate of reimbursement because an option they took in regard to the valuation of their land for Federal estate tax purposes increased the total liability of the estate for those taxes. Upon their appeal, this court affirmed the general method for calculating reimbursement set forth in that decision. (Martin I, 162 Ill. App. 3d 638, 515 N.E.2d 1312.) This court also held the question of whether a deficit existed requiring assessment of devisees could not be determined until a dispute as to whether various joint bank accounts standing in the name of the decedent and either Nickelson, Berentha Laverne Connell (another daughter of decedent), or both, were assets of the estate or of the two daughters.

The cause was remanded to the circuit court to determine the rights to those accounts. After a hearing, the circuit court entered an order on November 16, 1989, finding Nickelson and Connell entitled to the money represented by those accounts and thus finding the existence of a deficit. That order then ordered reimbursement to the estate by all the devisees pursuant to the provisions of the prior order affirmed in Martin I.

The Olivero devisees have appealed, asserting (1) the court erred in not finding a fiduciary relationship to have existed between the decedent and Nickelson and Connell vitiating any gift by the decedent to them of any interest in the purported joint accounts; (2) the court erred in not placing a burden on Nickelson, as executor, to explain why she listed the purported joint accounts as assets of the estate in earlier accounts but did not so list them in her last account; (3) the record clearly and convincingly established lack of donative intent on the part of decedent in setting up the purported joint accounts; (4) the court erred in denying admission into evidence of a letter written by a former counsel for the executor; and (5) counsel for the executor had a conflict of interest which should have caused him to withdraw from the case. We affirm.

Some of the evidence concerning the rights in the joint accounts is undisputed. Prior to decedent’s death, nine such accounts were created with the decedent and Nickelson or Connell or both listed as joint owners. Neither Nickelson nor Connell contributed any money to the accounts and neither ever made any withdrawals. Neither had possession of any of the passbooks until Nickelson was appointed executor. The first account was created on March 3, 1979, when the decedent went to her bank with Connell and purchased joint money market certificates in the face amount of $30,430.80. Connell was named as a joint owner with decedent. On April 6, 1979, a similar transaction occurred whereby decedent purchased another money market certificate in the sum of $23,387.24 in her name and Nickelson’s. In April 1980, the decedent executed her will and gave it to Nickelson for safekeeping. Thereafter, seven other such accounts were created before the decedent died.

After- the decedent died, Nickelson and Connell redeemed the certificates and created a “jumbo” savings account at the same bank in the name of Nickelson as executor of decedent’s estate. This account was in the sum of $215,687.35. Both Nickelson and Connell testified this money was advanced to the estate to enable the estate to make payments for expenses of administration and estate taxes but with an understanding between them they would ultimately be reimbursed from the estate. However, various statements of account made by the executor refer to the “jumbo” account as an asset of the estate without any statement of liability upon the estate to reimburse Nickelson and Connell for advancing that money. Then, the last account of the executor made no listing of the “jumbo” account. The Federal estate tax return for the estate treated the funds from the joint accounts in a similar manner. Interest on the “jumbo” account was treated on a tax return as interest earned by the estate. No gift tax return was ever filed by the decedent or her estate with reference to the creation of the various joint accounts.

Two well-recognized presumptions concerning gifts of property by one person to another are asserted by the parties. The various joint accounts here were apparently created pursuant to the provisions of section 2 of “An Act to revise the law in relation to joint rights and obligations” (Ill. Rev. Stat. 1977, ch. 76, par. 2), which concerns joint rights in personalty. When a joint savings account is created pursuant to the terms of section 2, a presumption arises that one who furnishes the funds for the account intends to make a gift to the other persons who are designated as owners of the account. (Murgic v. Granite City Trust & Savings Bank (1964), 31 Ill. 2d 587, 202 N.E.2d 470; Frey v. Wubbena (1962), 26 Ill. 2d 62, 185 N.E.2d 850.) This presumption can be overcome only by clear and convincing evidence. (Murgic, 31 Ill. 2d 587, 202 N.E.2d 470; Frey, 26 Ill. 2d 62, 185 N.E.2d 850.) On the other hand, when a gift is made by one person to another who owes a fiduciary duty to the donor, that gift is presumptively fraudulent. (Franciscan Sisters Health Care Cory. v. Dean (1983), 95 Ill. 2d 452, 448 N.E.2d 872.) That presumption also can only be overcome by clear and convincing evidence. Franciscan Sisters, 95 Ill. 2d 452, 448 N.E.2d 872.

The Olivero devisees maintain the creation of the various joint accounts was flawed both because of (1) constructive fraud in breach of a fiduciary relation owed to the decedent by Nickelson and Connell; and (2) a lack of donative intent by the decedent when creating the accounts. Accordingly, the two presumptions might be seen as being in conflict. When such a conflict exists, the presumption of validity referred to in Murgic and Frey has been held to prevail over the presumption of fraud arising from a fiduciary relationship. (In re Estate of Copp (1971), 132 Ill. App. 2d 974, 271 N.E.2d 1; In re Estate of Foster (1969), 104 Ill. App. 2d 447, 244 N.E.2d 620.) Here, we need not decide whether the Murgic presumption prevails over the presumption arising from a fiduciary relationship. We conclude the finding that no fiduciary relationship existed between either Nickelson or Connell and the decedent was not contrary to the manifest weight of the evidence.

In seeking to establish a fiduciary relationship between Nickelson and Connell and the decedent, the Olivero devisees rely on evidence that (1) in 1980, after executing her will, the decedent gave the will to Nickelson for safekeeping; (2) from May 19, 1983, until the decedent’s death on July 2, 1983, she was confined in a hospital suffering from terminal cancer and part of the time attached to a machine to prevent her from vomiting; and (3) on June 13, 1983, either Nickelson or Connell took appropriate forms to decedent whereby decedent created an additional money market joint account in the sum of $91,443.50 in her name and the names of those two daughters. The Olivero devisees assert the combination of the age and eventual illness of the decedent when combined with the confidence and trust she placed in Nickelson and Connell required the circuit court to find a fiduciary relationship existed between them.

The Olivero devisees rely on the case of Kester v. Crilly (1950), 405 Ill. 425, 91 N.E.2d 419. There, the supreme court upheld a determination of the existence of a fiduciary relationship between a father and daughter when (1) they lived together; (2) he was crippled, paralyzed, and had difficulty in talking; and (3) she, with a sister, had taken his pension checks together with their paychecks and placed them in a joint account from which they paid household expenses. Here, neither daughter lived with the decedent though Connell lived in close proximity. Except for the related participation of Nickelson and Connell in the creation of certain of the joint accounts and Nickelson’s keeping decedent’s will, the record does not reveal any evidence of these daughters otherwise handling business transactions for decedent. The decedent’s sister testified the decedent appeared to be of sound mind up to the last and capable of handling her business. The evidence fell well short of that which would have required the circuit court to find a fiduciary relationship existed.

The Olivero devisees’ assertion they are entitled to a new trial or other relief because Nickelson, as executor, was under some duty to explain the disparity in treatment of the joint accounts in her accounting of her acts as executor is based on the case of In re Estate of Murphy (1987), 163 Ill. App. 3d 380, 516 N.E.2d 664. There, a decedent had created joint bank accounts in proper statutory form naming her son as joint owner. That son’s wife became the decedent’s executor. During the administration of the decedent’s estate, the executor filed several accounts listing the joint accounts as assets of the estate and then filed a final account making no mention of the joint accounts. Another son, a residual legatee, objected to the final report but, without explanation, the court approved that report. The appellate court reversed, holding the executor had the burden of explaining the discrepancy.

Notably, Murphy did not concern the establishment of the right of the purported joint owner of the accounts to succeed to full ownership of the accounts upon the death of the co-owner. Rather, the case involved the question of whether the executor had discharged her duties. The decision indicated the executor had the burden of going forward to explain a discrepancy in the accounts. The rule established was that in the absence of any evidence concerning the discrepancy, the executor should not have been discharged. Other than describing the situation when no evidence was presented, the opinion did not touch upon the subject of presumptions. The decision is of little help to us in deciding whether the circuit court erred in not determining the joint accounts belonged to the estate.

We are now set to confront the closest question in the case. That is whether the circuit court erred in determining the presumption the decedent intended to make gifts to Nickelson and Connell was not rebutted by clear and convincing evidence. In maintaining the evidence did so, the Olivero devisees rely principally on In re Estate of Denier (1980), 80 Ill. App. 3d 1080, 400 N.E.2d 641, and In re Estate of Guzak (1979), 69 Ill. App. 3d 552, 388 N.E.2d 431, both of which state often repeated criteria bearing upon whether that presumption has been rebutted.

In Denier, three certificates of deposit standing in the name of a decedent and her daughter were found by the trial court to be an asset of the decedent’s estate. The appellate court affirmed, holding the presumption of intent had been properly rebutted. Until her fatal stroke, the decedent had at all times kept control of the certificates and the daughter had made no contribution to them. The daughter admitted she had no control over the accounts during the mother’s life and that they were to be used for her mother’s care when she was sick. Evidence indicated the mother had told the daughter the daughter would have to care for her when she got old. A power of attorney executed by the mother indicated she considered the joint certificates were hers. The court noted that evidence in support of the daughter’s claim was the daughter’s testimony that her mother told her the certificates were to be hers when her mother died. However, the court stated that testimony was inconsistent with testimony in a discovery deposition the daughter had given.

In affirming, the Denier court quoted language from Guzak as follows:

“ ‘The transfer of personal property into joint tenancy by a father with the right of survivorship in his son creates a presumption of a valid gift to the son as the surviving joint tenant. [Citations.] The presumption is not conclusive but the burden is upon the one who challenges the gift to present clear and convincing evidence of the absence of a donative intent. [Citations.] In determining whether the donor actually intended to transfer his interest in the account at his death to the surviving joint tenant, it is proper to take into consideration the facts surrounding the creation of the joint account ***. [Citations.] Especially relevant to such a determination is the exercise of authority and control over the joint account. [Citations.] The fact that the surviving joint tenant did not consider himself as having any ownership in the account may be considered in determining the intent of the creator of the account. [Citations.] Evidence that the transfer was made for the mere convenience of the creator of the account is an indication of lack of donative intent. [Citations.] Another factor to be considered is the quantity of personal property involved in comparison to the total assets of the estate. [Citations.]’ [Guzak,] 69 Ill. App. 3d 552, 554-55[, 388 N.E.2d 431, 433-34].” Denler, 80 Ill. App. 3d at 1087, 400 N.E.2d at 647.

In Guzak, the account in question had been held by the decedent for many years. First it was a joint account of the decedent and his wife. After her death, the decedent kept the account in his own name for 25 years. Then the decedent’s son, who lived with the decedent, was made a joint tenant but decedent or his daughter had control of the passbook. Both the son and daughter made deposits to the account with decedent’s funds but the son never made any withdrawals. Evidence was presented that shortly before his death decedent had pointed to a passbook for a trust fund of which the son was the named beneficiary and stated this was what he wanted the son to have. Evidence was also presented the son had admitted, after the father’s death, he had no ownership of the account in question. The appellate court affirmed the circuit court’s judgment awarding the purportedly joint account to the decedent’s estate.

Here, unlike in Denier and Guzak, the decision to be made on review is whether to uphold a trial court determination that the presumption of donative intent had not been rebutted. In analyzing the question presented we must recognize that in their testimony both Nickelson and Connell admitted they had no right to use funds of the joint accounts during the decedent’s lifetime. Rather, they maintained they had a right to use the funds only after the decedent’s death.

The restriction against their use of funds during the decedent’s lifetime did not destroy their claim to the funds. In Johnson v. La Grange State Bank (1978), 73 Ill. 2d 342, 383 N.E.2d 185, consolidated appeals included an appeal from the decision of this court in Havey v. Patton (1977), 52 Ill. App. 3d 897, 368 N.E.2d 728. There, an estranged wife created several joint accounts with her sister-in-law with the understanding the sister-in-law would not draw on them during the donor wife’s lifetime. The wife was terminally ill at the time and did not want her estranged husband to have the money in the account. The supreme court affirmed a decision of this court affirming a circuit court decision upholding the surviving joint tenant’s right to the accounts against the decedent’s estate. The focus there was mostly upon the question of whether the decedent’s actions constituted a fraud on her husband. However, in writing for the court, Justice Ryan gave an explanation valuable here when he stated:

“The fact that Mrs. Havey contributed all the funds to the accounts and retained the right to withdraw them does not negate the existence of donative intent required to validate a gift. (Frey v. Wubbena (1962), 26 Ill. 2d 62, 71-72[, 185 N.E.2d 850, 856].) Thus, as far as the present case is concerned, we do not believe that Mrs. Havey’s right to use the funds, or her direction that her sister-in-law have no immediate use of the funds, demonstrates a lack of donative intent. Rather, where joint accounts are concerned, the creation of the joint tenancy accounts is evidence of donative intent and is sufficient to establish ownership in the survivor upon the death of the original owner, in absence of evidence to the contrary. In re Estate of Schneider (1955), 6 Ill. 2d 180, 187[, 127 N.E.2d 445, 449]; Frey v. Wubbena (1962), 26 Ill. 2d 62, 72[, 185 N.E.2d 850, 856].” Johnson, 73 Ill. 2d at 368, 383 N.E.2d at 197.

As we have explained, Nickelson, acting in her capacity as executor, treated the joint accounts inconsistently and in ways which would tend to negate they belonged to Connell and her. However, both Nickelson and Connell testified that they had an agreement to put the proceeds of the accounts in the account of the estate for use in paying expenses of administration and estate taxes with reimbursement to be made to them. The circuit court heard this testimony and had the opportunity to see them as they testified. The testimony was worthy of belief and explained, to some extent, the discrepancies in the way that money was treated in various accounts and tax returns.

In examining the circumstantial evidence in this case we find nothing which is dispositive. Nickelson and Connell had no use of the funds during decedent’s lifetime and never had control of the passbooks. However, this is entirely consistent with their position that they had no right to withdraw from the accounts during the life of the decedent. The accounts were in large amounts and the record is not clear as to whether the decedent herself ever withdrew from them. If the decedent used other monies to pay her expenses, that would tend to negate an intention the joint account was for convenience. The fact that Nickelson did not live in Illinois also tended to negate an intent upon the decedent to set up joint accounts with her for convenience.

On June 13, 1983, while decedent was on her deathbed and 21lz weeks before she died, decedent did create joint accounts in the sum of $91,443.56 leaving only $611.92 in her other accounts. This action bore some indication of being for the decedent’s convenience. However, she had not had the other joint owners draw for her on the other joint accounts and they were still available to use for her medical expenses. Thus, the totality of the circumstances also supports an intent on her part to make a gift to Nickelson and Connell. This inference was supported by the testimony of a sister of the decedent who stated the decedent felt she had done less during her lifetime for Nickelson and Connell and told the sister she wanted to do something for them. The sister also testified decedent was concerned with Connell’s health.

Based upon the evidence, the circuit court could properly determine the presumption of donative intent upon the part of the decedent was not clearly and convincingly shown to be rebutted. A further complication arises from our decision in the case of In re Estate of Lewis (1990), 193 Ill. App. 3d 316, 549 N.E.2d 960. There, we held the bursting bubble theory of presumptions applied to the presumption of donative intent set forth in Murgic and Frey. In Franciscan Sisters the court had stated the bursting bubble theory applied generally to presumptions in civil cases.

Under the bursting bubble theory, if the underlying facts giving rise to the presumption are proved, the party against whom the presumption operates must produce sufficient evidence to refute the presumption. The strength of the proof necessary to refute the presumption depends on the nature of the presumption. (Franciscan Sisters, 95 Ill. 2d 452, 448 N.E.2d 872.) As with the presumption of fraud arising from a gift to a fiduciary, the proof to refute a presumption of donative intent must be clear and convincing. (Lewis, 193 Ill. App. 3d 316, 549 N.E.2d 960.) This case was decided before Lewis and the record does not indicate whether the court applied the bursting bubble theory here. However, that makes no difference because the court’s determination of the lack of rebuttal proof prevents the bubble from bursting.

The decision of the circuit court on the issue of donative intent was supported by the evidence.

A former attorney for Nickelson wrote to the attorney for the Olivero devisees on February 24, 1984, stating, in part, “It was [decedent’s] intention that the funds she accumulated and which were jointly held are to be applied to the payment of all taxes and the cost of administration.” The Olivero devisees offered this portion of the letter in evidence and the trial court refused the offer. The apparent purpose of the offer of proof was that the statement constituted an admission of a party opponent. However, the opponents of the Olivero devisees in regard to the instant dispute were Nickelson and Connell in their individual capacities. The record does not indicate the writer of the letter ever represented Nickelson and Connell individually in regard to the dispute over the joint accounts. The interest of the estate would be served by having her accounts as assets of the estate. Thus, an admission by the estate that the joint accounts should be part of the estate is not an admission of Nickelson or Connell as individuals.

We have concern with whether a letter of this nature, by an attorney, would be admissible as an admission of the attorney's client even if the client and the one seeking to use the admission were in opposing positions. However, that is a complicated question and we need not answer it here.

Finally, the Olivero devisees seek reversal and a new hearing on the theory that counsel for the executor had a conflict between representing the interest of the estate, which would be enhanced by the joint account money being part of the estate, and the individual interest of the executor which would be served by upholding the validity of the joint accounts. Clearly, at all times after prior remand, separate counsel have represented the interests of the estate and those of Nickelson and Connell as individuals. Moreover, the Olivero devisees have had the opportunity to fully present their theory that the joint accounts are assets of the estate. Nothing has been called to our attention which would require reversal of the order on appeal because of any conflict of counsel.

As we have indicated and for the reasons stated, we affirm.

Affirmed.

LUND and STEIGMANN, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE KNECHT

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GARY W. FLANAGAN, Defendant-Appellant.
    Fourth District
    No. 4-88-0485
    Opinion filed August 30, 1990.

      Thomas R. Appleton and Roma Barksdale Larson, both of Morse, Giganti & Appleton, of Springfield, for appellant.
    Carol Pope, State’s Attorney, of Petersburg (Kenneth R. Boyle, Robert J. Biderman, and Linda Susan McClain, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE KNECHT

delivered the opinion of the court:

Defendant Gary W. Flanagan appeals from his convictions on the felony offense of aggravated criminal sexual assault. (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 14(b)(1).) We affirm.

On March 18, 1987, defendant was charged by complaint with one count of the misdemeanor offense of criminal sexual abuse in the circuit court of Menard County, Illinois. (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 15(a)(2).) He later entered a plea of guilty on the complaint under a negotiated agreement. On March 19, 1987, the circuit court admonished defendant, accepted the plea, and entered judgment of conviction on the agreement.

The prosecution presented the negotiated plea agreement at the sentencing hearing. Under the agreement, the prosecution recommended defendant be fined $552 and sentenced to probation for a period of 364 days. In addition, the prosecution proposed defendant be subject to the following special conditions during probation: (1) a prohibition against the consumption of alcohol and the use of controlled substances; (2) a recommendation for an alcohol-abuse assessment; (3) a requirement of weekly attendance at Alcoholics Anonymous and at the Rape Information and Counseling Service; and (4) a provision for service under the county jail work-release program. The prosecution closed its presentation by noting defendant would have to comply with the special conditions through the entire period of the statute of limitations to stay the filing of the remaining felony charges for his misconduct.

Shortly after sentencing, the prosecution received negative probation reports on defendant under the county jail work-release program. The reports alleged defendant had not complied with the alcohol-related conditions of probation. The prosecution verified the allegations and elected to file the remaining felony charges against defendant.

On July 10, 1987, defendant was charged by information with three counts of the felony offense of aggravated criminal sexual assault in the circuit court of Menard County, Illinois. (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 14(b)(1).) He unsuccessfully sought to dismiss the case on grounds of double jeopardy and prosecutorial vindictiveness prior to trial. Defendant then unsuccessfully filed a challenge to the constitutionality of the substitution of judge statute on grounds of due process of law and separation of powers following two successive venue changes in the action. (Ill. Rev. Stat. 1987, ch. 38, par. 114— 5(c).) He was found guilty as charged in a stipulated bench trial on May 11, 1988. On June 23, 1988, the circuit court entered judgment of conviction against defendant and sentenced him to prison for concurrent terms of six years. He now appeals.

We first address a motion to strike taken with this case on appeal. Defendant contends the statement of facts in the appellate brief of the prosecution is inaccurate and argumentative in violation of Supreme Court Rule 341. (107 Ill. 2d R. 341.) We disagree.

The striking of an appellate brief, in whole or in part, is a severe sanction. (Coffey v. Hancock (1984), 122 Ill. App. 3d 442, 444, 461 N.E.2d 64, 66.) This sanction is appropriate only where the alleged violation of the procedural rules on the format of appellate briefs hinders or precludes review. James v. Yasunaga (1987), 157 Ill. App. 3d 450, 452, 510 N.E.2d 531, 533.

The prosecution has substantially complied with the dictates of Supreme Court Rule 341 in its appellate brief. (107 Ill. 2d R. 341.) The statement of facts is a fair account of the chronology in the action. It is accurate in detail with proper citation to the record. Such an account is necessary for a complete understanding of the case. We deny the motion to strike.

Defendant initially contends he was denied due process of law by the failure of the prosecution to institute formal probation revocation proceedings in the underlying misdemeanor action. This contention is without merit.

Defendant did not assert this contention in the circuit court. Defendant’s motion to dismiss focused on pre-charging delay and prosecutorial vindictiveness. Defendant did not assert the prosecution was somehow obligated to institute formal probation revocation proceedings, nor did the trial court find defendant violated the terms of his probation in rendering its decision on the motion to dismiss. It is well settled that contentions not asserted in the circuit court are generally deemed waived on appeal. (Mead v. Board of Review (1986), 143 Ill. App. 3d 1088, 1093, 494 N.E.2d 171, 175; Wilson v. Gorski’s Food Fair (1990), 196 Ill. App. 3d 612, 617, 554 N.E.2d 412, 416.) As an exercise of our judicial discretion, however, we elect to address the merits of this contention below. Hux v. Raben (1967), 38 Ill. 2d 223, 230 N.E.2d 831.

The prosecution is entrusted with broad discretion “to determine the extent of the societal interest in prosecution.” (United States v. Goodwin (1982), 457 U.S. 368, 382, 73 L. Ed. 2d 74, 86, 102 S. Ct. 2485, 2493.) “The discretion afforded [the prosecution] is necessary because the legislature cannot fairly describe every possible set of circumstances which might present themselves *** in each case [to] predetermine [the] course of action by statute.” (People v. Golz (1977), 53 Ill. App. 3d 654, 659, 368 N.E.2d 1069, 1073.) Therefore, in the exercise of that discretion, the prosecution has the responsibility for (1) the decision whether or not to prosecute; (2) the timing and content of the information; and (3) the negotiation of the plea agreement. People v. Pankey (1983), 94 Ill. 2d 12, 16, 445 N.E.2d 284, 287.

The filing of criminal charges is a discretionary matter resting within the exclusive jurisdiction of the prosecution. (Pankey, 94 Ill. 2d at 16, 445 N.E.2d at 287.) As a result, following its verification of the negative probation reports, the prosecution was free to file either a revocation petition or the remaining felony charges for different offenses against defendant under the plea agreement. The trial court found the misdemeanor charge and the probation sentence imposed were separate and distinct from the felony charges the prosecutor elected to file. The charging action of the prosecution, viewed in its entirety, complies with due process of law.

Defendant also contends the misdemeanor action bars the felony action under the constitutional doctrine of double jeopardy. We disagree.

A criminal defendant is protected against double jeopardy under the fifth amendment to the United States Constitution. (U.S. Const., amend. V; see also Ill. Const. 1970, art. I, §10.) That amendment provides: “No person shall *** be subject for the same offence to be twice put in jeopardy of life or limb.” (U.S. Const., amend. V.) This constitutional protection is enforceable against the State through the fourteenth amendment. U.S. Const., amend. XIV; North Carolina v. Pearce (1969), 395 U.S. 711, 717, 23 L. Ed. 2d 656, 664, 89 S. Ct. 2072, 2076.

The constitutional doctrine of double jeopardy consists of three separate protections. “It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.” (Pearce, 395 U.S. at 717, 23 L. Ed. 2d at 664-65, 89 S. Ct. at 2076.) The rationale underlying this doctrine “is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.” Green v. United States (1957), 355 U.S. 184, 187-88, 2 L. Ed. 2d 199, 204, 78 S. Ct. 221, 223.

The definitive test on the constitutional doctrine of double jeopardy is stated in Blockburger v. United States (1932), 284 U.S. 299, 76 L. Ed. 306, 52 S. Ct. 180. “[Wjhere the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” (Blockburger, 284 U.S. at 304, 76 L. Ed. at 309, 52 S. Ct. at 182.) This test rests on the assumption the legislature does not ordinarily intend to punish the same offense under two different statutes. (Whalen v. United States (1980), 445 U.S. 684, 691-92, 63 L. Ed. 2d 715, 723-24, 100 S. Ct. 1432, 1437-38.) “[I]f each offense requires proof of an additional fact not required to prove the other, then the two offenses are not the same for double jeopardy purposes.” People v. Totten (1987), 118 Ill. 2d 124, 138, 514 N.E.2d 959, 965.

The test is to focus on the statutory elements of the charged offenses, rather than on the actual evidence presented at trial. (Illinois v. Vitale (1980), 447 U.S. 410, 416, 65 L. Ed. 2d 228, 235, 100 S. Ct. 2260, 2265.) “[A] substantial overlap in the proof introduced at [successive] prosecutions is irrelevant for double jeopardy purposes as long as the offenses charged are distinct.” People v. Mueller (1985), 109 Ill. 2d 378, 387, 488 N.E.2d 523, 527.

The statutory elements of the charged offenses are distinct. As to the misdemeanor offense, criminal sexual abuse (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 15(a)(2)) requires (1) an act of sexual conduct and (2) the knowledge that the victim was unable to understand or consent to the act. As to the felony offenses, aggravated criminal sexual assault (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 14(b)(1)) requires (1) an act of sexual penetration, (2) an accused of 17 years of age or older, and (3) a victim of under 13 years of age. A comparison of the statutory elements reveals the charged offenses require different acts as well as different states of mind. (See People v. Traufler (1987), 152 Ill. App. 3d 987, 505 N.E.2d 21.) Since each offense requires proof of a fact which the other does not, they do not constitute the same offense under the Blockburger double jeopardy test. Further, the felony offenses charged occurred on different dates than the misdemeanor offense to which the defendant originally pleaded guilty. There is no double jeopardy here, and there is no basis for departing from a traditional analysis in rejecting defendant’s position.

Defendant next contends his felony convictions should be overturned for prosecutorial vindictiveness. We again disagree.

A prosecution is vindictive if it is undertaken “[t]o punish a person because he has done what the law plainly allows him to do.” (Goodwin, 457 U.S. at 372, 73 L. Ed. 2d at 80, 102 S. Ct. at 2488.) Prosecutorial vindictiveness is a violation of due process of law. (Pearce, 395 U.S. at 725, 23 L. Ed. 2d at 669, 89 S. Ct. at 2080.) Such a violation is remedied through dismissal of the criminal charges. United States v. Gervasi (N.D. Ill. 1983), 562 F. Supp. 632, 642.

The negotiation of a plea agreement is a legitimate and necessary process in our system of jurisprudence. (Bordenkircher v. Hayes (1978), 434 U.S. 357, 361-62, 54 L. Ed. 2d 604, 609, 98 S. Ct. 663, 667.) In the process, a criminal defendant is induced to enter a plea of guilty and forego his right to stand trial. As long as that defendant is free to accept or reject the negotiated plea agreement, the process itself is not proof of vindictiveness on the part of the prosecution. Bordenkircher, 434 U.S. at 363, 54 L. Ed. 2d at 610-11, 98 S. Ct. at 668.

Defendant appears to equate the action of the prosecution in enforcing the conditions of the negotiated plea agreement with vindictiveness. (See United States v. Napue (7th Cir. 1987), 834 F.2d 1311, 1330-31.) “The presence of a punitive motivation, [however], does not provide an adequate basis for distinguishing governmental action that is fully justified as a legitimate response to perceived criminal conduct from governmental action that is an impermissible response to noncriminal, protected activity.” (Goodwin, 457 U.S. at 372-73, 73 L. Ed. 2d at 80, 102 S. Ct. at 2488.) The defendant pleaded guilty to a misdemeanor offense in order to avoid prosecution and possible conviction for serious, nonprobationable, felony offenses. The plea discussions and the presentation of the plea in court made it clear to all concerned defendant’s behavior and compliance with certain conditions noted by the prosecutor would determine whether the felony charges would be filed at some future time. The prosecutor determined defendant’s problems with alcohol continued, and elected to file the felony charges for other sex offenses the defendant had admitted committing.

The prosecutor appropriately exercised her discretion and did exactly what she promised defendant she would do during plea negotiations and in open court when the misdemeanor plea was entered. This was not a response prompted by the defendant’s exercise of his constitutional rights. It was a response prompted by her determination as a constitutional officer that further prosecution was appropriate because defendant could not abstain from alcohol, and alcohol abuse and his criminal activity were intertwined. The action of the prosecution was not vindictive.

Defendant further contends the prosecution filed its motion for substitution of judge in an untimely manner. This contention is without merit.

The defendant did not assert this contention in the circuit court. For this reason, the doctrine of waiver would ordinarily bar review of this contention on appeal. In this action, however, appellate review is not barred because this contention implicates a jurisdictional defect. People v. Samples (1982), 107 Ill. App. 3d 523, 528-29, 437 N.E.2d 1232, 1237.

Section 114 — 5 of the Code of Criminal Procedure of 1963 (Code) governs the substitution of judges in criminal cases. (Ill. Rev. Stat. 1987, ch. 38, par. 114 — 5.) Either the defense or the prosecution may move for the substitution of judges for prejudice. (Ill. Rev. Stat. 1987, ch. 38, pars. 114 — 5(a), (c).) As to the latter, the Code provides in pertinent part:

“(c) Within 10 days after a cause has been placed on the trial call of a judge the State may move the court in writing for a substitution of that judge on the ground that such judge is prejudiced against the State. Upon the filing of such a motion the court shall proceed no further in the cause but shall transfer it to another judge not named in the motion.” Ill. Rev. Stat. 1987, ch. 38, par. 114-5(c).

The provisions of the Code are to be liberally construed to protect the right to a fair and impartial trial under due process of law. (People v. Kostos (1961), 21 Ill. 2d 451, 454, 173 N.E.2d 469, 471.) Such a construction dictates a substitution motion must not only be made properly within the time allowed by the statutory provisions (People v. Wolfe (1970), 124 Ill. App. 2d 349, 354, 260 N.E.2d 424, 427), but also prior to judicial action on the merits of the action (People v. Norcutt (1970), 44 Ill. 2d 256, 262, 255 N.E.2d 442, 446). A litigant is precluded from testing judicial attitude on an issue and later asserting prejudice when the judge fails to support the litigant. People v. Chambers (1956), 9 Ill. 2d 83, 89,136 N.E.2d 812, 815.

We note the prosecution filed its substitution motion within one week of the arraignment proceedings in the felony action. At those proceedings, the judge entered an order directing the release of defendant on his own recognizance under bond. This action of the judge is not a ruling on a substantive matter. (See People v. Crete (1985), 133 Ill. App. 3d 24, 478 N.E.2d 846; People v. Taylor (1984), 101 Ill. 2d 508, 463 N.E.2d 705.) The prosecution timely filed its motion for substitution of the judge. Taylor, 101 Ill. 2d at 518, 463 N.E.2d at 710.

Defendant lastly contends the prosecutorial-movant provision of the substitution-of-judge statute is unconstitutional. (Ill. Rev. Stat. 1987, ch. 38, par. 114 — 5(c).) This contention is without merit.

The Illinois Supreme Court has considered challenges to the constitutionality of the substitution-of-judge statute in two cases. In People v. Walker (1988), 119 Ill. 2d 465, 519 N.E.2d 890, the court upheld the defendant-movant provision (Ill. Rev. Stat. 1985, ch. 38, par. 114 — 5(a)) over a separation of powers challenge. In People v. Williams (1988), 124 Ill. 2d 300, 529 N.E.2d 558, the court upheld the prosecutorial-movant provision (Ill. Rev. Stat. 1987, ch. 38, par. 114— 5(c)) over both a due process of law challenge and a separation of powers challenge. Williams is dispositive here.

Defendant argues the prosecutorial-movant provision allows the prosecution to forum shop for a judge who may be biased against the defense in violation of due process of law. (See also U.S. Const., amend. XIV; Ill. Const. 1970, art. I, §2.) Due process simply requires a litigant receive a fair trial in an impartial tribunal. (In re Murchison (1955), 349 U.S. 133, 136, 99 L. Ed. 942, 946, 75 S. Ct. 623, 625.) It does not also require a litigant receive his choice of the judge presiding at trial.

“A litigant does not have the right under due process to have his case heard by a particular judge. [Citations.] When it exercises its right to a substitution of judge under section 114 — 5(c), the State is not seeking a particular judge, only an impartial one. Conversely, the defendant has no due process right to defeat this substitution motion, because he too has only the right of impartiality. If the State moves for substitution of judge, and the defendant feels that the substituted judge could not be impartial towards him, he can always make his own motion to substitute under section 114 — 5(a) or for cause under section 114 — 5(d).” Williams, 124 Ill. 2d at 308-09, 529 N.E.2d at 561-62.

Defendant also argues the prosecutorial-movant provision allows the prosecution to interfere with the authority of the judiciary to assign judges to hear cases in violation of separation of powers. This provision only peripherally affects the authority of the judiciary to assign judges. “Statutes which only peripherally affect the judicial branch do not violate the separation of powers clause of [the] Constitution (111. Const. 1970, art. II, §1), because separation of powers allows for the branches of government to overlap and share certain functions.” Williams, 124 Ill. 2d at 307, 529 N.E.2d at 561.

The judgment of the Menard County circuit court is affirmed.

Affirmed.

LUND and GREEN, JJ., concur.


author: JUSTICE McCULLOUGH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. VICTOR M. SALOME, Defendant-Appellant.
    Fourth District
    No. 4-90-0189
    Opinion filed August 30, 1990.

      Rex L. Reu, of Thomson & Weintraub, of Bloomington, for appellant.
    Charles G. Reynard, State’s Attorney, of Bloomington (Kenneth R. Boyle, Robert J. Biderman, and Linda Susan McClain, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

Defendant appeals his conviction of possession of less than 15 grams of a substance containing cocaine. (Ill. Rev. Stat. 1987, ch. 56V2, par. 1402(b).) He argues the trial court’s denial of his motion to suppress evidence was contrary to the manifest weight of the evidence. Defendant contends the officer who questioned him did not have a reasonable suspicion supported by articulable facts that he was engaged in criminal activity pursuant to Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868. Therefore, defendant contends his consent to search the vehicle in which he was a passenger and the owner’s consent were invalid.

We affirm.

The facts are compiled from the hearing on the suppression motion and trial testimony. On February 12, 1989, at approximately 7:55 a.m., Illinois State Trooper Michael Snyders purchased gasoline at Pool’s Amoco station in Chenoa. As Snyders was leaving, he observed a yellow 1977 Chevrolet pickup truck parked at the northwest corner of the station. The station is located near the intersection of Route 24 and Interstate 55. The truck was facing northbound. Two men were working on it, and the hood was up. Both men made eye contact with Snyders as he drove past them. Snyders ran a registration check on the license-plate number as he drove on to the interstate. After a two-to three-minute delay, he received a message indicating the registration belonged to a Honda.

Snyders returned to the station, where he discovered he had made an error in the license number. He reran the number, which came back as a 1977 Chevrolet truck. Snyders drove close to the truck to record the license-plate number and observed that the hood was down. Both individuals were standing near the left front headlight of the truck. Neither made eye contact with Snyders. As he drove past, Snyders looked in his rearview mirror. He saw the defendant walk briskly back to the passenger side of the vehicle, reach inside, do something with his hands, then look at the police car. Snyders turned around, radioed he was going to check a suspicious vehicle, and parked his vehicle. The gasoline station’s parking lot and the Hen House Restaurant’s parking lot are adjacent to each other. Snyders stated he was 30 feet away from the truck, between it and the restaurant. He was not between the truck and Route 24.

Snyders further testified he was suspicious because there were very few people around, defendant appeared nervous, appeared to have hidden something in the passenger area of the truck, and the track was parked in a suspicious manner. At trial, Snyders stated an armed robbery had occurred at a gasoline station near the Amoco station less than a month before.

Snyders walked up to defendant and Luis Aguilar. He asked the two what they were doing and for some identification. Snyders talked to the men in a friendly manner. Aguilar stated the thermostat in his truck went out and they were replacing it. Aguilar gave Snyders an identification card and the vehicle’s title. However, he did not have a driver’s license. Defendant gave Snyders his driver’s license. Aguilar stated the truck belonged to him.

Snyders testified he took the identification back to his patrol car and ran a license check. Everything came back valid. Snyders then returned to the truck and returned the documents to their owners. Snyders asked defendant if he had hidden anything in the truck. Snyders told defendant about his suspicions. However, defendant stated he had nothing to hide. Snyders also told the two men about the armed robbery Snyders then asked defendant and Aguilar for permission to search the vehicle for guns or drugs. He also requested consent to search the glove compartment. Both consented. Snyders stated he told the men they did not have to consent to the search and asked whether they spoke English. Snyders admitted he did not ask whether he could open containers which he found in the glove compartment. He asked defendant and Aguilar to stand where he could see them as he searched.

In the glove compartment, Snyders saw two winter gloves and an empty ammunition clip. As he pulled the clip out of the glove compartment, he noticed one of the gloves was heavy. When he moved it, he saw the butt of a handgun. After Snyders found the weapon, he frisked defendant and Aguilar. He then radioed for backup. A further search revealed five rounds of live ammunition in defendant’s pockets and cocaine in a pill box located in defendant’s other glove. Defendant stated the weapon and drugs were his.

Ronald Van Houten, an attendant at Pool’s Amoco, stated Snyders asked him how long the yellow truck had been in the lot as Snyders was purchasing fuel. Van Houten told Snyders the truck had been there 10 to 15 minutes for repairs. Then, Van Houten observed Snyders leave. Soon after, he saw Snyders pull up behind the truck. Snyders was parked 10 feet behind the truck between it and Route 24. Van Houten stated defendant and Aguilar arrived shortly before 8 a.m. They parked at the west side of the station. Aguilar asked Van Houten to change the thermostat of the truck. Since Van Houten could not do so, Aguilar bought a thermostat and borrowed tools. Van Houten’s view of defendant and Aguilar was obstructed by pop machines, chips, and candy racks.

Aguilar testified he pulled into the Amoco station to fix the thermostat. Defendant was his passenger. He saw Snyders purchase gasoline. Snyders then left the lot but returned and parked about a car length behind Aguilar’s truck. The patrol car was between the truck and Route 24. The hood was up on the truck when Snyders approached. Snyders asked if Aguilar and defendant had car trouble. He talked to Aguilar and defendant as they replaced the thermostat. After Aguilar and defendant finished the repair and lowered the hood, Snyders asked for identification. Snyders was standing in front of the truck at the time. Aguilar gave Snyders a checkbook with his driver’s license number, his United States residency permit, and the title to the truck. Defendant gave Snyders a driver’s license. Snyders returned to the police car to check the identification. After five minutes he returned and told Aguilar and defendant that everything was correct.

Aguilar further testified Snyders did not return the documents. Snyders asked permission to search the truck but did not tell them his reason. Aguilar gave Snyders consent to search. Snyders did not tell Aguilar or defendant that they could refuse consent nor did he ask for consent to search containers within the glove compartment. He returned the documents only after defendant had been arrested.

Defendant testified at the suppression hearing. His testimony essentially corroborated Aguilar’s testimony. Defendant stated it was very cold on February 12, 1989. He went to the passenger compartment of the truck on several occasions to retrieve tools and rags. Snyders parked 10 feet behind the truck and talked to defendant and Aguilar as they worked. They were ready to leave when Snyders asked for identification. After Snyders checked their identification, he told them everything was okay. Defendant volunteered to drive because Aguilar did not have a license with him. While still holding the documents, Snyders asked permission to search the vehicle.

Initially, the trial court granted the defendant’s motion to suppress the weapon, ammunition, ammunition clip, cocaine, and defendant’s statement. The court ruled Snyders observed insufficient factors to form a reasonable suspicion of criminal activity. Therefore, his seizure of defendant was improper and any subsequent consent ineffective. In ruling upon the People’s motion for reconsideration, the court denied defendant’s motion to suppress, finding no stop and seizure of defendant occurred prior to the consent. After a bench trial, the court found defendant guilty and sentenced him to 30 months’ probation, a fine, and costs.

Defendant maintains he was seized for fourth amendment purposes when Snyders ordered him to produce his identification and restrained his freedom of movement. Defendant noted Snyders was suspicious of him, wore a weapon, blocked defendant’s access to Route 24, and did not return defendant’s license or Aguilar’s identification until after an arrest had been made. Since Snyders did not have a reasonable suspicion supported by facts that Aguilar and defendant were involved in criminal activity, the seizure violated the fourth amendment. Defendant relies upon People v. Murray (1989), 188 Ill. App. 3d 488, 544 N.E.2d 1008, in which the appellate court reversed the trial court’s denial of a motion to suppress.

However, the Illinois Supreme Court recently reversed the appellate court decision and discussed factors to be considered in determining when a “seizure” occurs for fourth amendment purposes. The supreme court noted that not all contact between the police and members of the public constitutes a seizure. In People v. Murray (1990), 137 Ill. 2d 382, the supreme court noted that Murray was asleep or resting in his legally parked car. Two police officers became concerned about his condition and approached him. The police officers parked their squad car behind defendant’s vehicle. The officers stated defendant appeared to be in distress. Although the evidence was conflicting, the officers testified that after defendant awoke they told him to exit the vehicle and asked for identification. After defendant opened the door, one of the officers saw a weapon. At Murray’s suppression hearing, he testified an officer searched his vehicle after he expressly refused permission to do so. The supreme court rejected the argument that defendant was seized when police officers ordered him out of the vehicle and asked for identification.

The Murray court stated:

“There are, theoretically, three tiers of police-citizen encounters. [Citation.] One tier involves an arrest of a citizen, which action must be supported by probable cause; otherwise, the fourth amendment prohibition against unreasonable seizures is violated. [Citation.] The next tier involves a so-called ‘Terry’ stop, a brief seizure that must be supported by a reasonable suspicion of criminal activity to be within acceptable fourth amendment boundaries. [Citation.] The last tier involves no coercion or detention and therefore does not involve a seizure. This tier is commonly known as the community caretaking function or public safety function. The Supreme Court elaborated on this level of police intrusion in Terry when it noted that ‘[o]bviously, not all personal intercourse between policemen and citizens involves “seizures” of persons. Only when the officer, by means of physical force or show of authority has in some way restrained the liberty of a citizen may we conclude that a “seizure” has occurred.’ Terry v. Ohio (1968), 392 U.S. at 19 n.16, 20 L. Ed. 2d at 905 n.16, 88 S. Ct. at 1879 n.16 ***.” Murray, 137 Ill. 2d at 387-88.

The Murray court noted that in United States v. Mendenhall (1980), 446 U.S. 544, 64 L. Ed. 2d 497, 100 S. Ct. 1870, the United States Supreme Court set forth the parameters of activity which may constitute a seizure. In Mendenhall, the Court adopted a view that a person is seized only when his freedom of movement is restrained by physical force or a show of authority. However, as long as the person remains free to disregard questions and leave there is no intrusion on the person’s liberty requiring objective justification. The test for determining when police have seized an individual is whether, in view of all the circumstances of the incident, a reasonable person would have believed he was not free to leave. Mendenhall, 446 U.S. at 554-55, 64 L. Ed. 2d at 509-10, 100 S. Ct at 1877-78; see also People v. Graves (1990), 196 Ill. App. 3d 273, 553 N.E.2d 810.

In Florida v. Royer (1983), 460 U.S. 491, 75 L. Ed. 2d 229, 103 S. Ct. 1319, a majority of the United States Supreme Court endorsed the Mendenhall standard. In Murray, the Illinois Supreme Court stated the Mendenhall standard was helpful and appropriate. (Murray, 137 Ill. 2d at 388.) The court then reviewed the facts in Murray and found Murray was not seized prior to the officers observing the weapon.

The Mendenhall Court and Murray court noted four factors which may indicate a seizure occurred. They are (1) the threatening presence of several officers, (2) display of a weapon by an officer, (3) some physical touching of the person of a citizen, and (4) use of language or tone of voice indicating compliance is required. (Mendenhall, 446 U.S. at 554, 64 L. Ed. 2d at 509, 100 S. Ct. at 1877; Murray, 137 Ill. 2d at 388.) A trial court’s ruling on a motion to suppress will only be reversed when it is contrary to the manifest weight of the evidence. (Murray, 137 Ill. 2d at 387; People v. Christensen (1990), 198 Ill. App. 3d 168, 555 N.E.2d 746.) The trial court is free to reject defendant’s version of the events. People v. Alcantara (1989), 179 Ill. App. 3d 105, 534 N.E.2d 405.

In the instant case, if Snyders’ testimony is believed, he parked 30 feet behind the truck, did not display a weapon, and returned identification to defendant and Aguilar prior to asking consent to search. Snyders told the men they were free to refuse consent to the search. Additionally, Snyders stated he conversed with the men in a friendly fashion. Though he was suspicious, he also wanted to know if they needed assistance. Defendant’s testimony also supports a finding that no seizure occurred prior to the consent to search. Defendant stated that after Snyders returned to the truck and had run an informational check on defendant’s license, defendant volunteered to drive the rest of the trip. This indicates defendant felt he was free to leave. The trial court’s determination that no impermissible stop and seizure occurred is supported by the manifest weight of the evidence.

For the above reasons, we affirm the trial court.

Affirmed.

KNECHT, P.J., and SPITZ, J., concur.


author: JUSTICE LUND

text:
    DAVID W. ANDERS, Plaintiff-Appellant, v. MOBIL CHEMICAL COMPANY, Defendant-Appellee.
    Fourth District
    No. 4-89-1001
    Opinion filed August 30, 1990.

      Stanley N. Wasser, of Feldman & Wasser, of Springfield, for appellant.
    James W. Gladden, Jr., of Mayer, Brown & Platt, of Chicago, for appellee.
   JUSTICE LUND

delivered the opinion of the court:

Plaintiff David W. Anders brought this action in the circuit court of Morgan County, alleging that defendant Mobil Chemical Company discharged him from its employ in violation of an employee handbook. Plaintiff claimed that the handbook distributed by the defendant created enforceable contractual rights. The trial court entered summary judgment in favor of defendant, reasoning that the disclaimer set forth in defendant’s handbook clearly indicates the defendant’s intention not to create an employment contract. Plaintiff appeals from and we affirm the trial court’s order.

Plaintiff advances three arguments for reversal of the trial court’s order of summary judgment. Plaintiff first contends that there is a genuine issue of fact as to the character of the employment relationship between plaintiff and defendant. Plaintiff next asserts that the disclaimer set forth in .the handbook should have been disregarded by the trial court as a matter of public policy. Finally, plaintiff argues that the trial court erred in finding that the disclaimer did not constitute an anticipatory repudiation of an employment contract.

On January 1, 1979, plaintiff was hired to work at defendant’s Jacksonville, Illinois, plant. The Jacksonville plant, which is part of the plastics division of Mobil Chemical Company, produces polyethylene products such as grocery and garbage bags. At the time of plaintiff’s termination, he was a senior operator in the grocery sack department and was responsible for the operation of a machine which manufactures plastic grocery bags. While the machine was in operation, plaintiff sat at a desk approximately 3x/2 to 4 feet away from the machine. There, plaintiff observed the machine’s operation and conducted hourly quality checks. Plaintiff admits that he used his desk in the performance of his duties, but contends that it was not part of his work area.

In 1984, plaintiff was issued an employee handbook. Plaintiff - states that he has read “everything that was in it.” A disclaimer, which appears at the front of the handbook, immediately following the table of contents states:

“This handbook is meant to show the policies and procedures currently employed by the Plastics Division of Mobil Chemical Company (‘Mobil’) and are subject to change by Mobil unilaterally and at any time. Mobil does not intend that this handbook, whether provided to an employee before commencement of employment or after commencement of employment, constitute part of any offer of employment or be interpreted expressly or by implication to constitute a contract for employment or to evidence the existence of a contract of employment between Mobil and any employee.”

Pages 69 through 71 of the handbook contain employee “Standards of Conduct.” Heading the list of specific acts of misconduct is the following statement explaining the disciplinary process:

“Generally a five-step procedure will be used in taking corrective action so that individuals will have an opportunity to correct their behavior. However, a number of acts of misconduct are so universally recognized as being serious violations of accepted behavior that the commission of these acts may subject a person to immediate discharge.”

Listed as a specific act of misconduct is “[bjreach of company or departmental safety or smoking rules.”

The handbook also explains the nature and purpose of each step in the five-step disciplinary procedure. Steps one and two, “instruction and re-instruction,” serve to “provide the employee with training and re-training in order that he or she may correct unsatisfactory performance or behavior.” These steps “may or may not be committed to writing, depending on the nature of the offense.” Step three, the written warning, “[sjerves to firmly call the employee’s attention to continued unsatisfactory behavior or rule violations.” Step four, the final warning, “[s]erves to discipline an employee for continued and/or serious violations of rules or continued unacceptable behavior.” This step, which may be accompanied by a suspension without pay, puts the employee “on notice that a [recurrence] may be cause for more severe disciplinary action including discharge.” Step five, discharge of an employee, “[rjeflects the employee’s continued failure to adhere to Rules of Employee Conduct or to correct unsatisfactory performance despite prior corrective discipline; or reflects a serious infraction of the Rules of Employee Conduct which warrants immediate dismissal.” The handbook sets forth detailed procedures for approval and review of disciplinary actions by plant management. Additionally, the handbook specifies that an employee will be interviewed and “given the opportunity to appeal to a higher level of management” prior to final discharge.

During the course of his employment, plaintiff and his co-workers reviewed plant and departmental safety rules every six months. Plaintiff read and reviewed the rules in effect at the time of his discharge and told his foreman he had no questions regarding their interpretation. Plaintiff also attended compulsory monthly safety meetings in which safety issues were discussed.

The introduction to the plant safety rules explains that rules set forth in boldface type, “WHEN NOT FOLLOWED, WILL RESULT IN STEP 3 CORRECTIVE ACTION BEING TAKEN AND ARE INDICATIVE OF THE TYPE RULE WHICH WOULD CAUSE MORE SERIOUS CORRECTION ACTION.” Plant safety rule No. 19 reads as follows:

“Utility (bonny) knives are to be used by authorized personnel only. NEVER USE UNAUTHORIZED OR UNAPPROVED KNIVES (INCLUDES ALL PERSONAL KNIVES). NEVER INAPPROPRIATELY USE AN APPROVED KNIFE.” (Boldface in original.)

Departmental safety rule No. 12 for the grocery sack department provides:

“Scissors will be used whenever possible to cut film. Before scissors are used, make certain the points of the scissors have been ground off. A utility knife may be used only when scissors or a hook knife will not perform the job safe[l]y. When utility knives are carried, they will be in a proper sheath. Only approved utility knife blades with blunt ends will be used. Personal knives will never be used.”

The events leading to plaintiff’s discharge began on February 12, 1987, when plaintiff cut his hand while cleaning the printing press section of the grocery sack machine. Plaintiff’s supervisor issued a “step two” disciplinary write-up, stating that plaintiff performed “an unsafe act by placing his hand in such a manner that it slipped off and went into the press.”

On March 4, 1987, plaintiff’s supervisor issued a “step three” written warning based upon plaintiff’s improper use of a utility knife to cut banding from cartons on a pallet. Plaintiff was told that his next safety-rule violation would lead to a final warning.

On April 5, 1987, plaintiff received a “step four” final warning and a three-day suspension without pay after he was observed cleaning ink off a print cylinder while the production line was running. Plaintiff met with his immediate supervisor, the production supervisor, and the plant’s operations manager to discuss the violation. Plaintiff was advised that he was on final warning, and any further violation of the safety rules would result in termination.

On January 21, 1988, plaintiff’s supervisor observed plaintiff sitting at his desk in the production area cutting grooves in a wooden ink-stirring paddle with his poeketknife. Plaintiff admits that this activity had no relationship to his job duties. Plaintiff’s supervisor informed him that he was violating a safety rule which prohibited the use of personal knives. Plaintiff contended that he was not violating any safety rule because he “was not working on anything and was s[i]tting at [his] desk.” Following an argument about the plaintiff’s interpretation of the safety rule, plaintiff was suspended until further notice. Plaintiff’s supervisor then prepared and signed an incident report in which he recommended plaintiff’s termination. The report was reviewed and signed by the production supervisor, the employee relations advisor, the employee relations manager, the operations manager, and the plant manager. Approximately three days later, plaintiff attended a meeting with his supervisor, the production supervisor, and the employee relations advisor. There, he was informed of the decision to terminate him. At no time did plaintiff request an appeal to a higher level of management.

Plaintiff subsequently filed a complaint for wrongful discharge, alleging that the handbook issued by defendant constitutes an employment contract which defendant breached by discharging plaintiff. Defendant filed a motion for summary judgment, contending that the employee handbook did not create an employment contract and, even if it did, defendant complied with all procedural steps described therein. The trial court granted defendant’s motion, stating that the disclaimer set forth in defendant’s handbook is not disfavored by public policy and clearly indicates defendant’s intention not to create enforceable contractual rights. Plaintiff now appeals, contending that the trial court erred in granting summary judgment.

Section 2 — 1005(c) of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1005(c)) provides that a party may be granted summary judgment “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.” In ruling upon such a motion, the trial court must consider the pleadings and evidentiary matters in the record in the light most favorable to the nonmoving party and accept as true the reasonable inferences from such facts which favor the nonmovant. National Bank v. City of Lexington (1985), 138 Ill. App. 3d 805, 808, 486 N.E.2d 967, 969.

Plaintiff first contends that the trial court could not determine on the basis of the pleadings and depositions whether plaintiff was an at-will employee or was employed pursuant to a contract, the terms of which were set forth in the employee handbook. We disagree.

An employment relationship without a fixed duration is terminable “at will” by either party for any or no cause. (Duldulao v. Saint Mary of Nazareth Hospital Center (1987), 115 Ill. 2d 482, 489, 505 N.E.2d 314, 317; Palmateer v. International Harvester Co. (1981), 85 Ill. 2d 124, 128, 421 N.E.2d 876, 878.) However, the “employment-at-will rule” mandates only a presumption that a hiring without a fixed term is at will. This presumption can be overcome by demonstrating that the parties contracted otherwise. (Duldulao, 115 Ill. 2d at 489, 505 N.E.2d at 318.) In Duldulao, our supreme court established a test for determining whether an employee handbook constitutes a contract of employment:

“[A]n employee handbook or other policy statement creates enforceable contractual rights if the traditional requirements for contract formation are present. First, the language of the policy statement must contain a promise clear enough that an employee would reasonably believe that an offer has been made. Second, the statement must be disseminated to the employee in such a manner that the employee is aware of its contents and reasonably believes it to be an offer. Third, the employee must accept the offer by commencing or continuing to work after learning of the policy statement. When these conditions are present, then the employee’s continued work constitutes consideration for the promises contained in the statement, and under traditional principles a valid contract is formed.” Duldulao, 115 Ill. 2d at 490, 505 N.E.2d at 318.

Application of the above principles to this case reveals that the first element of contract formation is not present. Defendant’s handbook contains a clear disclaimer stating that the policies and procedures described therein are “subject to change by Mobil unilaterally and at any time.” The disclaimer further provides that the handbook is not intended to “constitute part of any offer of employment or be interpreted expressly or by implication to constitute a contract for employment or to evidence the existence of a contract of employment between Mobil and any employee.” This explicit disclaimer compels our conclusion that the handbook does not, in the words of the Duldulao court, “contain a promise clear enough that an employee would reasonably believe that an offer has been made.” (Duldulao, 115 Ill. 2d at 490, 505 N.E.2d at 318.) In fact, the disclaimer makes it quite clear that the defendant is promising nothing.

Plaintiff provides a distinction between Duldulao and this case, noting that although Duldulao establishes that employee handbooks can create enforceable contract rights, the case does not posit any rule regarding the consequence of disclaiming language. While it is true that the handbook at issue in Duldulao contained no disclaimer, the test for contract formation set forth in that case is equally applicable here. Support for this conclusion can be found in the opinions of several appellate courts which have analyzed employee handbooks or policy statements containing disclaimers and have held that such handbooks or statements cannot be construed as offers to enter an employment contract. (Hogge v. Champion Laboratories, Inc. (1989), 190 Ill. App. 3d 620, 546 N.E.2d 1025; Bennett v. Evanston Hospital (1989), 184 Ill. App. 3d 1030, 540 N.E.2d 979; Moore v. Illinois Bell Telephone Co. (1987), 155 Ill. App. 3d 781, 508 N.E.2d 519, appeal denied (1987), 116 Ill. 2d 562, 515 N.E.2d 112.) Of the foregoing cases, Bennett is most similar to this case.

In Bennett, the plaintiff brought an action to recover damages for breach of an employment contract, alleging that the employee handbook issued by the defendant constituted such a contract. Much like the handbook issued by the defendant in this case, the Evanston Hospital Employee Handbook contained no provision which required just cause as a basis for dismissal. Additionally, an introduction from the hospital’s president on the first page of the handbook stated that the handbook “is not intended to create a contract of employment.” (Emphasis in original.) (Bennett, 184 Ill. App. 3d at 1031, 540 N.E.2d at 980.) In affirming the trial court’s dismissal of plaintiff’s complaint, the First District Appellate Court cited Duldulao and held that “the court correctly found no contract could exist.” (Bennett, 184 Ill. App. 3d at 1033, 540 N.E.2d at 981.) Given its factual similarity to this case, Bennett provides strong support for our affirmance of the trial court’s finding that there is no contract between the plaintiff and the defendant.

Plaintiff contends that this case is unlike Bennett and is factually similar to Seehawer v. Magnecraft Electric Co. (N.D. Ill. 1989), 714 F. Supp. 910. In Seehawer, the plaintiff, an executive secretary, was issued an employee manual which provided, in relevant part, that, “[ejmployees shall be discharged or disciplined only for just cause.” (Seehawer, 714 F. Supp. at 912.) Shortly after defendants issued the manual, plaintiff signed an employee statement, which provided that “my employment and compensation can be terminated, with or without cause and notice, at any time, at the option of the Company or myself.” (Seehawer, 714 F. Supp. at 912.) The employee statement further provided that the president and vice-president of Magnecraft had sole authority to enter any agreement to the contrary. (Seehawer, 714 F. Supp. at 912.) Plaintiff was terminated and subsequently brought an action advancing several theories of recovery, including breach of contract. Defendants moved for summary judgment on plaintiff’s breach of contract claim. The trial court denied defendants’ motion for summary judgment, reasoning that the apparent inconsistency between the manual’s “just cause” provision and the employee statement’s disclaimer of any contractual relationship precluded summary judgment for two reasons. First, the court noted that the seemingly conflicting provisions could be reconciled in the plaintiffs favor:

“In addition to the disclaimer, the Statement provides that the president and vice-president have sole authority to bind Magnecraft to a promise to terminate only for cause. It is not unreasonable to view the Manual as an exercise of that authority, thus requiring Magnecraft to justify its termination decisions.” (Seehawer, 714 F. Supp. at 914-15.)

The Seehawer court then cited a second rationale for its denial of summary judgment, stating, “[T]o the extent that the provisions are irreconcilable on their face, the clarification of ambiguities in contractual provisions is a matter best left to the trier of fact.” Seehawer, 714 F. Supp. at 915.

The considerations which counseled against summary judgment in Seehawer are not present in this case. The disclaimer set forth at the front of defendant’s employee handbook and the procedures and policies contained in the handbook are neither inconsistent nor conflicting. Although the handbook sets forth rules and standards of conduct and outlines a five-step disciplinary procedure, it contains no express “just cause” provision as the manual at issue in Seehawer did. Taken as a whole, the handbook spells out policies and procedures which are generally followed by the defendant corporation, but states clearly at the outset that the defendant is in no way legally bound to follow them simply because it put them in writing. There are no ambiguities or inconsistencies for the trier of fact to clarify. Summary judgment was properly entered on the basis of the pleadings and depositions.

Plaintiff next argues that the trial court should have disregarded the disclaimer as a matter of public policy. As authority for this proposition, plaintiff cites numerous cases in which courts have restricted the effect of exculpatory clauses limiting the buyer’s right to. damages in contracts for the sale of goods. (See, e.g., Berwind Corp. v. Litton Industries, Inc. (7th Cir. 1976), 532 F.2d 1; Frank’s Maintenance & Engineering, Inc. v. C.A. Roberts Co. (1980), 86 Ill. App. 3d 980, 408 N.E.2d 403.) Plaintiff contends that these cases demonstrate that “[disclaiming language, such as the language used in defendant’s handbook is not favored as a matter of public policy and should be disregarded as unconscionable in the employment context.” The analogy plaintiff attempts to draw between these cases and the case at bar is unpersuasive.

Berwind and Frank’s Maintenance, as well as the other cases plaintiff cites, address sellers’ attempts to limit their obligations under existing contracts for the sale of goods. At issue in this case is whether a contract between plaintiff and defendant exists. Frank’s Maintenance illustrates the inapplicability of this line of cases. In Frank’s Maintenance, the court set forth two ways in which a clause attempting to limit or exclude consequential damages may be unconscionable. The court stated that unconscionability “can be either procedural or substantive or a combination of both.” (Frank’s Maintenance, 86 Ill. App. 3d at 989, 408 N.E.2d at 409-10.) The court explained that “[procedural unconscionability consists of some impropriety during the process of forming the contract depriving a party of a meaningful choice” while “[s]ubstantive unconscionability concerns the question whether the terms themselves are commercially reasonable.” (Frank’s Maintenance, 86 Ill. App. 3d at 989-90, 408 N.E.2d at 410.) As we previously stated, the trial court correctly determined that the defendant’s employee handbook could not be construed as an offer conferring the power of acceptance upon the plaintiff. Therefore, there was neither a formation process nor a single contractual term for the court to examine. Neither we nor the trial court could address the potential unconscionability of a disclaimer set forth in a nonexistent contract. Berwind, Frank’s Maintenance, and the other cases plaintiff cites offer no guidance in deciding this case.

Plaintiff further argues that “[t]he prime underpinning of the law’s disfavor of disclaimers is that the law takes cognizance of the unequal bargaining position of the parties.” Plaintiff concludes that “the unequal bargaining position^] of Plaintiff and Defendant are glaring.” However, there is nothing in the record to suggest that plaintiff had little choice but to work for Mobil Chemical.

Plaintiff also notes that “a further consideration that the law takes cognizance of is whether the operation of a disclaimer results in an unconscionable result.” The “result” created by the disclaimer in defendant’s employee handbook is an at-will employment relationship. It is difficult to conceive how the at-will employment relationship between plaintiff and defendant, which would have been legally presumed if the defendant had issued no handbook, is somehow an “unconscionable result.” We do not view at-will employment relationships as inherently unfair.

In sum, there is no authority supporting plaintiff’s contention that clauses disclaiming the existence of an employment contract are legally disfavored. In the absence of such authority, we decline to adopt plaintiff’s reasoning. It seems illogical to conclude that an employer violates public policy by asserting the existence of an at-will employment relationship when, as in this case, such a relationship is legally presumed. An additional consideration counseling against a finding that employment contract disclaimers violate public policy is the likely result of such a holding. Without the ability to disclaim the existence of an employment contract, employers would be hesitant to publish any rules or procedures, fearing that such statements would be construed as contractual terms. Consequently, employees would have little knowledge of their employer’s expectations. It seems a better public policy not to discourage employers from publishing general rules and expectations. Published policies, as opposed to spoken policies or no articulation of policy at all, provide a greater degree of clarity and certainty to at-will employment relationships and foster a better working environment.

Finally, plaintiff contends that the disclaimer set forth at the front of the employee handbook stands as an anticipatory repudiation of the contractual terms which comprise the remainder of the handbook. Plaintiff reasons that “in issuing the handbook Defendant set forth terms and conditions of employment creating a contractual relationship with Plaintiff but Defendant at the same time, by the inclusion of the disclaiming language, indicated in advance that it had no intention of living up to its obligations under the handbook contract terms.” Plaintiff’s reasoning is somewhat tortured.

Anticipatory repudiation occurs when a party bound by an executory contract gives notice of his intention not to comply with his obligations. When such notice is given, the other- contracting party may accept such notice as an anticipatory breach and treat the contract as ended without waiting for the completion of its terms. (Stonecipher v. Pillatsch (1975), 30 Ill. App. 3d 140, 142, 332 N.E.2d 151, 153.) To apply the doctrine of anticipatory repudiation in this case, we would have to conclude that defendant’s employee handbook simultaneously created an employment contract by its terms and then breached that contract by its disclaimer. We know of no case where a single document has been found to both create and breach a contract, and we see no reason to reach such a result in this case. The trial court provided a more logical interpretation of the defendant’s employee handbook when it concluded, as do we, that its disclaimer clearly indicates the defendant’s intention not to create enforceable contractual rights. For this and all the foregoing reasons, the trial court properly entered summary judgment in favor of the defendant.

Affirmed.

KNECHT, P.J., and GREEN, J., concur.