author: JUSTICE CAHILL

text:
    AMERICAN SOCIETY OF LUBRICATION ENGINEERS, Plaintiff-Appellee, v. JAMES ROETHELI et al., Defendants-Appellants.
    First District (4th Division)
    No. 1—91—3892
    Opinion filed April 29, 1993.

      Parrillo, Weiss & O’Halloran, of Chicago (Maureen T. Murphy and Keely Truax, of counsel), for appellants.
    Kralovec, Marquard, Doyle & Gibbons, Chartered, of Chicago (Sean J. Hardy and Nancy J. Arnold, of counsel), for appellee.
   JUSTICE CAHILL

delivered the opinion of the court:

We are asked here to decide whether or not a court retains jurisdiction and the power to sanction an attorney who agrees at a pretrial conference to a settlement whose terms are incorporated in an agreed dismissal order and who then withholds payment for seven months. We affirm the decision of the trial court and hold that the court may award attorney fees in such a case under Supreme Court Rules 218 and 219 (134 Ill. 2d Rules 218, 219).

On the morning of January 2, 1991, lawyers for the plaintiff and the defendants appeared before a judge on the priority trial call in the municipal division of the circuit court of Cook County. The plaintiff had filed suit in 1987 for damages to its building, which had been struck by the defendants’ automobile. A discussion ensued among the lawyers and the judge about the status of the case. The defendants’ lawyer offered to settle the case for 70% of the plaintiff’s demand. A question arose as to the accuracy of the settlement and the judge readded the dollar amount with a portable calculator. The plaintiff accepted. The court then entered the following order:

“This matter having come before this Court upon the priority trial call and the Court having been advised in the premises that all matters in controversy having been resolved between the parties, and by agreement of the parties, it is hereby ordered that this matter be and is dismissed. Further that this Court shall retain jurisdiction of this matter in the event that any party fails to execute any necessary document or to pay the agreed settlement amount. It is further ordered that this matter has settled in the amount of $3,103.80.” (Emphasis added.)

The same day, the defendants’ attorney sent a letter to the plaintiff’s attorney confirming that the case had been settled. The letter further said that upon receiving a copy of the repair bills, the estimates, a signed release, and a signed proof of loss, the defendants would issue a check for the settlement amount and the matter would be closed.

On February 22, 1991, the plaintiff’s attorney sent the defendants’ attorney a signed release but did not include the repair bills. On March 4, 1991, the defendants’ attorney wrote to the plaintiff’s attorney thanking her for the release but again asking for repair bills and a signed proof of loss.

Three more letters from the plaintiff’s lawyer to the defendants’ lawyer followed. None were answered by the defendants’ lawyer. In the first letter on March 6, the plaintiff’s attorney requested that a check be issued and reminded defense counsel that the release had been sent on February 22. No mention was made of repair bills. On March 20, the plaintiff’s attorney again wrote stating that the repair bills had been previously tendered on January 22, 1988, September 21, 1989, and on the last court date, January 2, 1991. She went on to say that she did not feel she needed to produce the documents a fourth time.

On May 10, the plaintiff’s lawyer wrote to demand payment within seven days. She also stated that if payment was not made, she would move to vacate the dismissal order. There was no response.

The plaintiff moved to vacate the dismissal order and for sanctions. On August 22, 1991, after a hearing, the court entered an order which stated that the defendants acknowledged the settlement amount and further granted the plaintiff leave to file a petition for attorney fees.

On September 5, after hearing argument, the judge granted the petition and awarded the plaintiff $436.50 in fees. The judge denied the defendants’ motion to vacate the order on October 31. The defendants then filed a notice of appeal.

The parties met again on December 12 for a hearing on the defendants’ motion to post an appeal bond. A court reporter was present and the trial judge, commenting on the events of January 2, 1991, said: “As I recall, there was an argument made that the numbers did not add up when in fact they did add up, and we had gone through them on a calculator at the pretrial conference ***.” (Emphasis added.)

The defendants make three arguments on appeal: (1) that the court lacked jurisdiction to enter an order for attorney fees, coming as it did seven months after the January 2, 1991, order of dismissal; (2) assuming jurisdiction, no authority exists under which the court is empowered to award attorney fees; and (3) assuming jurisdiction and the authority to award attorney fees, that the defendants did nothing to warrant a sanction.

The defendants first argue that the trial court was without jurisdiction when it awarded attorney fees because the award came more than 30 days after the case was dismissed. It is generally true that a trial court only retains jurisdiction to alter judgment orders or grant other relief for 30 days after entry of a final order. Brigando v. Republic Steel Corp. (1989), 180 Ill. App. 3d 1016, 1020, 536 N.E.2d 778, 781.

There are, however, exceptions to the general rule and several are relevant here. First, the court explicitly retained jurisdiction under its order dismissing the case. (See, e.g., Anundson v. City of Chicago (1970), 44 Ill. 2d 491, 256 N.E.2d 1.) Second, parties revest a court with jurisdiction by participating in further proceedings which are inconsistent with an order of dismissal. (Comet Casualty Co. v. Schneider (1981), 98 Ill. App. 3d 786, 792, 424 N.E.2d 911, 916.) The defendants’ attorney, without objection, appeared and argued at the August 22, 1991, hearing on the plaintiff’s motion to vacate and for sanctions. Third, the trial court has inherent authority to enforce its own orders and judgments. (Adam Martin Construction Co. v. Brandon Partnership (1985), 135 Ill. App. 3d 324, 326, 481 N.E.2d 962, 964; Cities Service Oil Co. v. Village of Oak Brook (1980), 84 Ill. App. 3d 381, 384, 405 N.E.2d 379, 382 (“It is an elementary principle of law that judicial power essentially involves the right to enforce the results of its own exertion”).) Last, we hold, and explain later in this opinion, that Supreme Court Rule 219 invests the trial court with jurisdiction in this case.

The defendants further claim that at the conference on January 2, 1991, the attorneys orally agreed that repair bills should be tendered before the defendants were required to pay the settlement amount. Since the plaintiff did not tender them until the August 22, 1991, hearing, the defendants argue that any delay was caused by the plaintiff.

We agree with the trial court’s finding that the alleged condition was not part of the settlement agreement. No evidence in the record supports the defendants’ contention, and the defendants did not deny that the plaintiff tendered the repair bills on three separate occasions.

We turn to the fundamental issue in this case: whether or not the judge had statutory or rule authority to impose a fee sanction for the defendants’ delay. Authority by statute, agreement, or stipulation is necessary to award attorney fees. (O’Hare v. Moniak (1969), 110 Ill. App. 2d 327, 328, 249 N.E.2d 178, 178-79.) The defendants claim that no statute authorizes fee awards for delay in compliance with a settlement agreement. They argue that Supreme Court Rules 218 and 219, upon which the plaintiff relies, only apply to pretrial “discovery” and pretrial “conferences,” and not to “settlements.”

We reject the defendants’ constricted reading and hold that where a voluntary dismissal order entered in open court after a pretrial conference contains language retaining jurisdiction in the trial court “in the event that any party fails to execute any necessary document or to pay the agreed settlement amount,” Supreme Court Rules 218 and 219(c) allow for the award of attorney fees if the court finds unwarranted delay in payment.

Rule 218 provides for enforcement of orders entered under agreements reached at pretrial conferences. Rule 218(b) reads: “The court shall make an order which recites any action taken by the court and the agreements made by the parties as to any of the matters considered ***.” (134 Ill. 2d R. 218(b).) The order may be enforced under Rule 218(d): “The court shall make and enforce all rules and orders necessary to compel compliance with this rule, and may apply the remedies provided in paragraph (c) of Rule 219.” 134 Ill. 2d R. 218(d).

Subpart (c) of Rule 219 applies to all rules in the 200 series and empowers the court, among other sanctions, to: “order that the offending party or his attorney pay the reasonable expenses, including attorney’s fees incurred by any party as a result of the misconduct.” 134 Ill. 2d R. 219(c).

We are aware that Rule 218, upon which the plaintiff relies to invoke the sanctions authorized by Rule 219, is limited to matters logicaUy flowing from pretrial discovery and settlement conferences. The failure to timely file a brief in response to a motion to dismiss, for example, is not the type of pretrial procedure which falls within the scope of Rule 218. See Sanelli v. Glenview State Bank (1984), 126 Ill. App. 3d 411, 418, 466 N.E.2d 1119, 1124.

Unlike the failure to file a brief discussed in Sanelli, a settlement agreement is often the logical result of a pretrial conference, and Rule 218 specifically governs pretrial conferences. One purpose of a pretrial conference is to expedite the prosecution of a case, either by hastening a settlement agreement between the parties, or by clarifying the issues and evidence so that a trial on the merits may occur more swiftly. (Keilholz v. Chicago & North Western Ry. Co. (1973), 10 Ill. App. 3d 1087, 1091-92, 295 N.E.2d 561, rev’d on other grounds (1974), 59 Ill. 2d 34, 319 N.E.2d 46; Conover v. Smith (1974), 20 Ill. App. 3d 258, 260, 314 N.E.2d 638, 640 (“The pre-trial conference is a technique to promote the disposition of litigation by cooperation and agreement”).) Pretrial conferences frequently lead to settlement and dismissal of the action. (Fennema v. Vander Aa (1968), 93 Ill. App. 2d 162, 166, 236 N.E.2d 409, 411, rev’d on other grounds (1969), 42 Ill. 2d 309, 247 N.E.2d 409.) Rule 218 therefore governs settlement agreements reached at pretrial conferences and their respective dismissal orders. See Keilholz, 10 Ill. App. 3d at 1091-92; 134 Ill. 2d Rules 218(a)(1), (a)(5).

We next address the authority granted to the trial court under Rule 219(c) in cases where there has been a voluntary dismissal. The rule reads in applicable part:

“Notwithstanding the entry of a judgment or an order of dismissal, whether voluntary or involuntary, the trial court shall retain jurisdiction to enforce, on its own motion or on the motion of any party, any order imposing monetary sanctions, including such orders as may be entered on motions which were pending hereunder prior to the filing of a notice or motion seeking a judgment or order of dismissal.” (134 Ill. 2d R. 219(c).)

The drafting committee comments on this rule address the case of a sanction motion which is pending at the time of dismissal. The rule was drafted and adopted to address the problem of the plaintiff who takes a voluntary nonsuit to avoid exposure under pending motions for sanctions. But the use of the word “including” in the rule clearly implies other circumstances where the rule may apply. We hold this to be one of them.

We do not hold that an award of attorney fees is authorized in every case where a party fails to comply with a settlement agreement. Generally, where the court enters an agreed dismissal order based on a settlement reached by the parties without the court participating and the defendant refuses to pay, the plaintiff must file a separate lawsuit for breach of contract. (Brigando v. Republic Steel Corp. (1989), 180 Ill. App. 3d 1016, 1021 n.1, 536 N.E.2d 778, 782 n.1.) Here, however, the settlement was reached at a pretrial conference with the judge participating, a procedure governed by Rule 218. Further, the court in the present case, unlike the court in Brigando and the cases cited in its footnote, retained jurisdiction for the precise purpose of enforcing the settlement.

Accepting the defendants’ reasoning would provide a disingenuous attorney with a cavernous loophole in the 200 series of supreme court rules — rules crafted to put teeth in the requirement that the many elements of discovery, requests for admission, and pretrial conferences be conducted in good faith. Under the defendants’ analysis of the rules, a litigant could appear to gracefully comply with all pretrial procedures and then simply ignore the plain language of the dismissal order and a settlement he agreed to in open court in front of a judge. Treating the matter as a voluntary nonsuit, the defendant could force a plaintiff to resue him to enforce the agreement.

In our view, Rules 218 and 219 arise out of the supreme court’s clear understanding of the mischief that occurs before trial, when a litigant disposed to delay can use a mix of dilatory tactics to put off the day of reckoning when a jury is sworn and a trial begins. The event that at the eleventh hour normally brings the. process to a merciful end is a pretrial conference that produces a settlement agreement. If a litigant can argue and convince a court of review that Rules 218 and 219 stop just short of the settlement agreement, then he has defeated the purpose of the rules and survived to delay for yet another day.

Finally, the defendants contend that because the settlement was reached on the day of trial, it was not formulated at a “pretrial conference” in the generally understood meaning of that term and, consequently, that Rule 218 does not apply. We see no purpose in searching for a precise definition of a pretrial conference that will satisfy the defendants. A court may call a pretrial conference on its own, at any time, and it may hold a conference when the parties are properly before it on another issue. (Schaefer v. Sippel (1978), 58 Ill. App. 3d 816, 819, 374 N.E.2d 1092, 1095.) The trial judge himself referred to the hearing as a pretrial conference when he later reviewed the substance of that meeting. Nothing more is required within the meaning of Supreme Court Rule 218.

For the reasons stated, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

JIGANTI, P.J., and JOHNSON, J., concur.


source: Caselaw Access Project

author: JUSTICE CAMPBELL

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DEBORAH GRIFFITH, Defendant-Appellant.
    First District (1st Division)
    No. 1—91—2936
    Opinion filed May 10, 1993.

      Rita A. Fry, Public Defender, of Chicago (Mark Floyd Pasterski, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Judith M. Pietrucha, Special Assistant State’s Attorney, and Renee Goldfarb and James E. Fitzgerald, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Following a jury trial in the circuit court of Cook County, defendant Deborah Griffith was found guilty of abducting her daughter, Rebekah Ford, from the child’s father, Bruce Ford. Defendant was sentenced to nonreporting probation and now appeals.

The record of the proceedings at trial indicates the following facts. The State’s first witness was Deborah Ford, one of defendant’s daughters. At the time of trial, Deborah was 18 years old and living with her father, Bruce Ford, brother Brian and sisters Diane and Rebekah. Deborah testified that her family lived in Hoffman Estates when she was a child and that defendant moved out of the house in 1980, when Deborah was nine years old. Subsequently, the children were awarded possession of the family home; defendant and the father spent alternating weeks in the house. Deborah’s youngest sister, Rebekah, went on visitation with defendant every other weekend.

Deborah testified about an incident in 1980 where her father stopped defendant from taking Rebekah from the house. According to Deborah, defendant went to a window and yelled for help, accusing Bruce of beating defendant. Deborah testified that this was not true because Bruce was not near defendant. Deborah also testified that defendant then went into the bathroom alone and emerged looking disheveled, with a torn blouse. Deborah stated that defendant bit Bruce’s forearm during this incident.

Deborah testified that she never saw Bruce abuse either defendant or the children, though Bruce did discipline the children. Deborah stated that she did see defendant hit Bruce.

On Friday, December 16, 1981, Deborah saw defendant pick up Rebekah and leave for a weekend visitation. Neither defendant nor Rebekah returned at the conclusion of the weekend. Deborah did not see Rebekah again until April 1989.

On cross-examination, Deborah testified that she had thought her parents were married. Deborah admitted that while she never saw Bruce slap defendant, she did see him push and grab defendant. They often fought verbally; defendant would accuse Bruce of seeing someone named Barbara. Deborah further testified that she had no contact with defendant after December 16, 1981. She admitted that defendant called her once at a friend’s house, but that she hung up on defendant out of embarrassment. She admitted that she resented defendant for leaving.

Diane Ford, Deborah’s twin sister, and Brian Ford, Deborah’s 20-year-old brother, generally corroborated their sister’s testimony regarding their parents’ relationship.

FBI Agent Stanley Walker testified that he was assigned to the Department of San Francisco division in 1989 and 1990. He testified that he received a call on April 4, 1989, regarding a possible fugitive in the Eureka, California, area. After further investigation, he determined that the persons in question were defendant and Rebekah Ford.

Agent Walker went to Rebekah’s school with a woman from Child Protection Services of Humboldt County and had Rebekah, who was then known as Heather Brown, brought to the principal’s office. There, Agent Walker told Rebekah of her true identity. He then went to defendant’s place of work to identify her for arrest. Agent Walker identified defendant in court.

The State moved to introduce court orders regarding custody of the Ford children. These orders were then published to the jury.

Rebekah Ford was 13 years old at the time of trial. She testified that her earliest memories are of living in San Antonio, Texas, when she was five or six years old. Shortly thereafter, she and defendant moved to Bedford, Texas. Defendant’s boyfriend, Garold Davisson, later came to live with them in Bedford, where they stayed for four years. Rebekah testified that she visited her aunt in New Mexico every summer and saw her maternal grandparents during summers and holidays. She stated that she had been known as Heather Ann Brown and that defendant had been known as Mary Bank and Mary Carter.

Rebekah and defendant moved to California after Garold moved to Sacramento. Rebekah did not like living with Garold’s relatives in Sacramento. Rebekah and defendant later moved to Eureka, where they lived with a roommate named Diane. Rebekah did not like this roommate, whom Rebekah accused of hitting and kicking her. Rebekah stated that she was happy in Eureka, except for Garold’s and Diane’s presence.

Rebekah then testified about the day Agent Walker told her of her true identity. Rebekah was shocked; she cried. Rebekah testified that when she was eight years old, defendant had told her that her father had left and taken her brothers and sisters with him to parts unknown. Rebekah was taken to a foster home for the night and had breakfast with Bruce the following morning. She and Bruce then flew to Chicago, where she met the rest of her family in what Rebekah called a happy reunion, with everyone hugging and kissing.

On cross-examination, Rebekah admitted that she had visited with defendant since she resumed living with Bruce, but denied writing letters to defendant. The State rested.

Defendant called over a dozen witnesses, primarily former neighbors, friends and relatives, to testify regarding defendant’s relationship with Bruce Ford and with her children. Two former neighbors, Dana Whitcomb and Mary Ducato, testified to incidents where Bruce physically abused defendant. Defendant’s brother, David Griffith, testified that he spent the summers of 1978 and 1979 with defendant and Bruce. David testified that he saw Bruce physically assault defendant at least seven times during those summers. The other witnesses testified that they did not see Bruce hit defendant, though some saw defendant with various injuries and suspected defendant was being abused by Bruce.

Linda Ford testified that she was married to Bruce Ford from 1968 through 1970. She testified that during her pregnancy in 1968, Bruce became drunk and jumped on her stomach, causing her water to break and causing the child to be delivered earlier than expected. Linda also testified to two later incidents where Bruce hit and pushed her, causing her to file for divorce.

Linda also testified that she still has bitter feelings about Bruce. According to Linda, Bruce slept with defendant while he was still married to Linda. Linda testified that her feelings about Bruce also stem from her belief that Bruce is unsupportive of their son. Linda indicated that she was angry that Bruce spent so much money looking for Rebekah.

Defendant then testified in her own behalf. At the time of the trial defendant was 41 years old and living with friends in McHenry, Illinois. Defendant testified that she lived with Bruce Ford for 11 years. Bruce was married and had fathered a son when defendant met and began dating him. Defendant testified that she moved in with Bruce, but moved out in January 1970 after discovering him with another woman. Defendant then discovered she was pregnant. Defendant testified that when she told Bruce of her pregnancy, Bruce punched her in the stomach and told her to get an abortion. Defendant testified that she was brought up a strict Catholic. However, between January and April 1970, the two talked; defendant agreed to return to Bruce in April 1970. Bruce agreed he would marry defendant, but convinced her to wait until after their child was born.

On August 1, 1970, Bruce’s job required that he move to Colorado. Defendant went with Bruce, who told his employer that they were married. Defendant told her parents that she was married to Bruce. Defendant recalled an incident in July 1970 where Bruce punched her in the nose over a disagreement about whether to go from a party to a bar. Their son Brian was born in August 1970.

Defendant testified that the two returned from Colorado in November 1970. In the summer of 1971, she picked a fight with Bruce when he came home late one evening. Defendant was bruised when Bruce shoved her into a dresser during this incident.

The couple’s twin daughters, Deborah and Diane, were born five weeks premature on June 24, 1972. Defendant testified that she was upset the night before the birth because Bruce had not come home and later found out that Bruce had spent the night at his ex-wife’s house. Defendant stated that their relationship improved thereafter, but recalled an occasion where Bruce slugged her in the small of her back with his fist during an argument. Defendant went to the hospital for X rays, which turned out negative.

The couple and their children moved into the house in Hoffman Estates in June 1974. In August 1975, defendant visited her ill father. Upon her return, Bruce told defendant that he was seeing someone and moved out of the house, though Bruce continued to provide financial support.

Defendant stated that in October 1975, she hired a baby sitter and went out for an evening with her friends. When she returned home at 1:30 a.m., she found Bruce’s van in the driveway. Defendant found that the children were sleeping and that Bruce had been drinking. Bruce accused defendant of seeing someone, then slapped, punched and threw defendant to the floor. Defendant testified that Bruce left after the noise awakened the children. Defendant went to the hospital the next day, where her ribs were taped. Defendant testified that she did not tell anyone what happened. Defendant testified that she asked Bruce to return, which he did in November 1975. According to defendant, Bruce told her that he wanted to get married, but later missed appointments for blood tests.

Defendant testified that in the first six years with Bruce, she could recall him hitting her on three occasions. Defendant stated that she caused the fights by becoming upset with him, but testified that she did not strike Bruce until 1980.

Defendant also testified that during an argument in March 1976, Bruce pushed her to the floor, straddled her, pulled her arms behind her back, grabbed her head by the hair and smacked her face on the floor, splitting her nose wide open and leaving a puddle of blood. Bruce was upset with what he did and missed work by taking her to the hospital. Defendant testified that she told friends and neighbors that she was injured in a fall.

In October 1976, while defendant and the children were at the gas station where Bruce worked, defendant saw Bruce kissing a woman defendant knew as Barbara. Defendant testified that her brother David was also at the station at that time and saw Bruce threaten to break defendant’s back if she did not leave.

Defendant then testified that in December 1976, Bruce again punched her in the back during an argument.

Rebekah Ford was born on October 7,1977.

In the summer of 1978, the couple and their children moved into another house on the same street in Hoffman Estates. Defendant’s brother stayed with them in this house that summer. In July or August 1978, defendant and Bruce argued over money for the children. Bruce pinned defendant’s arms, slapped her and punched her. While Bruce always gave defendant his paycheck, their relationship at this point was not good.

In the summer of 1979, defendant visited her parents for 10 days. Upon defendant’s return, her brother told her that Barbara had stayed at the house in defendant’s absence. An argument ensued between defendant and Bruce.

Defendant testified that by the fall of 1979, she was crying all the time, becoming upset and angry in front of the children. Defendant stated that she became so depressed that Bruce took her to Forest Hospital, where the entire family was interviewed. Defendant asked Bruce to move out of the house.

According to defendant, she and Bruce fought again near Christmas 1979; Bruce slammed her head into a television set and pulled her hair. Defendant told Bruce she was fed up, and Bruce left. Defendant went to a hospital and told a nurse and a police officer about the beating. Defendant was told about a shelter.

Defendant recalled an incident in the spring of 1980 where Bruce and defendant were driving somewhere in Bruce’s van and Bruce refused to stop for defendant to buy cigarettes. Bruce began to hit defendant. Defendant stepped out of the van with Rebekah while the van was still moving. Defendant phoned a neighbor to retrieve her.

In June 1980, Bruce filed for custody of the children. Defendant testified that Bruce did so a few days after she had filed charges against him, claiming that he choked her during an argument over Barbara. Defendant filed countercharges against Bruce, alleging continuing harassment.

In July 1980, defendant took the children and stayed with a friend in De Kalb, Illinois. Defendant’s attorney told her to return the children. Upon defendant’s return, Bruce threatened to leave with the children; a struggle ensued. According to defendant, she bit Bruce’s arm, and Bruce punched her until she fled to the bathroom. It was during this fight that defendant had gone to the window and yelled to the girls outside that they should call the police. Defendant also testified that Bruce later left with the children for a few days.

Defendant then filed a complaint seeking the return of the children. An agreed order was entered providing that the children would remain in the house and that Bruce and defendant would occupy the house on alternating weeks. Defendant testified that this was stressful on the children.

In November 1980, the court ordered that defendant vacate the house entirely. The order granted defendant visitation rights on weekends, Tuesday and Thursday evenings, and holidays. Defendant would be permitted to take the children from the house every other weekend. However, defendant only took Rebekah because the older children refused to leave the house.

Defendant testified that in August 1981, she found Rebekah alone in the street outside the house while Bruce was working. Defendant filed a petition for emergency relief. An agreed order allowed defendant to keep Rebekah until August 22, 1981, when she was ordered to return the child to the Ford house.

Defendant was then allowed to use diaries that detailed her contacts with Bruce to refresh her recollection of other events that occurred in 1981. Defendant then began to testify about every contact she had with Bruce in 1981, beginning with January 3, 1981. During defendant’s testimony regarding March 27, 1981, the trial court ordered a sidebar to determine whether the parties could reach an agreement regarding the testimony which would speed the trial. Reaffirming a previous ruling, the trial court informed defendant that her testimony would be restricted to incidents of physical abuse and could not encompass denial of visitation or harassment. Defendant made an offer of proof regarding the approximately 40 to 50 incidents that she wanted to- relate to the jury. Proceeding through each incident, the trial court sustained the State’s objection to testimony about incidents that did not involve physical abuse.

Before the jury, defendant testified without objection that several times during 1981, Bruce denied her visitation with the children. She testified that on many other occasions, Bruce would follow her around the house during visitation, making rude comments and telling the children that defendant did not love them. Bruce would not let defendant put the children to bed. Defendant also testified that he would hang up on her when she would attempt to phone her children.

Defendant testified that on May 14, 1981, when she arrived to take Rebekah on visitation, Bruce put Rebekah in the bathtub. In the bathroom, defendant and Bruce argued about the children. Bruce slammed defendant’s hand in a sliding glass door. Rebekah stood crying in the bathtub. Defendant tried to comfort Rebekah, while Bruce tried to grab Rebekah away from defendant. Defendant eventually left the house.

On June 21, 1981, defendant went to a soccer game in which the twins were involved. Defendant testified that she was supposed to have visitation with Rebekah until 7:30 p.m. Bruce came over to the car and attempted to awaken Rebekah and remove her from the car. Bruce told defendant that she was never going to see Rebekah again. Defendant testified that Bruce twisted her arm behind her back and almost broke it. Defendant got back into her car. Bruce and Brian got into Bruce’s truck. Bruce attempted to hit her with his truck. According to defendant, as she drove to a friend’s house, Bruce kept ramming the rear end of her car and attempted to run her off the road. Arriving at her friend’s house, Brian got out of the truck and began pounding on her car. Bruce and Brian eventually left. Defendant returned Rebekah to the Ford house later that day.

On Friday, December 18, 1981, defendant picked up Rebekah for a weekend visitation. The two left for Texas the next day. Defendant testified that she was afraid of Bruce and tired of his harassment. Defendant testified that Bruce would not let defendant see her older children and she was afraid Bruce would finally kill her. Defendant stated that she took Rebekah because Rebekah wanted to be with her and she wanted to protect Rebekah from Bruce turning Rebekah against her.

On cross-examination, defendant admitted that her strict Catholic upbringing did not stop her from dating Bruce while he was married or from living with Bruce and having children out of wedlock. Defendant testified that Bruce was still married to Linda when defendant became pregnant with Brian. She further admitted that she lived with Garold in Texas and had also accused him of abuse.

Defendant testified that Bruce always apologized for hitting her and that she believed he was sorry. Defendant indicated that while she had trusted neighbors and many friends, she never told anyone about Bruce abusing her. Defendant testified that she would take Bruce back because she was emotionally and financially tied to him. She never sought counselling for Bruce, her children or herself.

Defendant testified that after Bruce began working at a gas station in Highland Park in 1976, defendant made the 45-minute drive there at least weekly. Defendant testified that she saw Bruce with Barbara at the station in 1978.

Defendant admitted that she was at a neighbor’s house when Brian was struck by a car while riding his “Big Wheel.” Defendant also admitted that she once struck Diane with a book, though she maintained that this was an accident. Defendant further admitted that she used Rebekah as a shield when Bruce hit her in 1979 and that she always picked Rebekah up when Bruce would attack her.

Defendant testified that she began having problems with her children in 1980, when Bruce filed for custody. Defendant claimed that Bruce also changed at this time, working shorter hours and showing more interest in the children. Despite her problems with Bruce at the Ford house, defendant never considered having any of the custody orders changed so that she could have visitation at a neutral place or have others pick up the children.

Defendant indicated that she had decided to take Rebekah from the Ford house in December 1981. Defendant testified that she told Bruce she was taking Rebekah to Texas and that she thought she had temporary custody of Rebekah at the time. Defendant admitted that she did not have a court order or Bruce’s consent to remove Rebekah from Illinois. Defendant then testified about her life in Texas and California, as well as her efforts to conceal her whereabouts.

In rebuttal, the State called Brian Ford, Ernest Garold Davisson, Jr., and Bruce Ford III. Marianne Whitcomb testified in surrebuttal. The State and defendant stipulated that three other people from Bruce’s neighborhood would testify that Bruce had a reputation for violence.

At the instructions conference, defendant sought to include instructions that would define the defense of fleeing an incidence or pattern of domestic violence. The trial court refused the proffered instruction. Over defendant’s objection, the trial court decided to instruct the jury with Illinois Pattern Instructions, Criminal, No. 3.01 (2d ed. 1981) (hereinafter IPI 2d No. 3.01), which does not require the State to prove the date of the offense.

Following closing arguments, the trial court instructed the jury. During jury deliberations, the jury asked the trial court to define a “pattern.” The trial court told the jury to rely on its common sense. The jury also asked the trial court to define “domestic violence” before 1980 and after 1980. The trial court told the jury to rely on its common sense. The jury eventually returned a guilty verdict on March 22,1991. Defendant filed a timely notice of appeal.

I

Initially, defendant contends that she was denied a fair trial because the trial court limited the evidence in support of her defense that she was fleeing an incidence or pattern of domestic violence. The child abduction statute provides:

“(c) It shall be an affirmative defense that:
* * *
(3) The person was fleeing an incidence or pattern of domestic violence.” (Ill. Rev. Stat. 1987, ch. 38, par. 10 — 5(c)(3).)

The child abduction statute does not define the term “domestic violence.” Defendant contends that the term should be defined with reference to the Illinois Domestic Violence Act of 1986 (Ill. Rev. Stat. 1987, ch. 40, par. 2311 — 1 et seq.) (the 1986 Act). The 1986 Act provides in part:

“(1) ‘Abuse’ means physical abuse, harassment, intimidation of a dependent, interference with personal liberty or willful deprivation but does not include reasonable direction of a minor child by a parent or person in loco parentis.
* * *
(3) ‘Family or household members’ includes spouses, former spouses, parents, children, *** persons who share or formerly shared a common dwelling and persons who have or, allegedly have a child in common.
(4) ‘Harassment’ means knowing conduct which is not necessary to accomplish a purpose that is reasonable under the circumstances; would cause a reasonable person emotional distress; and does cause emotional distress to the petitioner.
Unless the presumption is rebutted by a preponderance of the evidence, the following types of conduct shall be presumed to cause emotional distress:
* * *
(v) repeatedly threatening to improperly remove a child of petitioner’s from the jurisdiction, improperly concealing that child from petitioner or making a single such threat following an actual or attempted improper removal or concealment.” (Ill. Rev. Stat. 1987, ch. 40, pars. 2311 — 3(1), (3), (4)(v).)

The State responds that despite the above definitions, the term “domestic violence” is not defined in the 1986 Act. Though not cited by defendant, section 227 of the 1986 Act, which concerns privileged communications between domestic violence counselors and victims, provides as follows:

“(a) As used in this Section:
* * *
(5) ‘Domestic violence’ means abuse as defined in the Illinois Domestic Violence Act.” (Ill. Rev. Stat. 1987, ch. 40, par. 2312-27.)

The Illinois Domestic Violence Act (Ill. Rev. Stat. 1985, ch. 40, par. 2301 — 1 et seq.) (the original Act), repealed by the 1986 Act, defined “abuse” similarly to the definition of the 1986 Act. The original Act, however, did not define the term “harassment.”

The parties both rely upon People v. Welacha (1989), 186 Ill. App. 3d 860, 542 N.E.2d 927, which appears to be the only reported case involving this statutory defense. The State also cites People v. Dworzanski (1991), 220 Ill. App. 3d 185, 580 N.E.2d 1263, but that case discusses the necessity defense, not the statutory defense at issue here. In Welacha, this court held that a trial court may find incidents of abuse insufficient to overcome evidence of guilt where the alleged abuse occurs several months prior to the abduction. Welacha, 186 Ill. App. 3d at 863-64, 542 N.E.2d at 929-30.

The decision to admit or exclude testimony is generally committed to the trial court and will not be reversed absent a clear abuse of discretion. (People v. Ward (1984), 101 Ill. 2d 443, 456-57, 463 N.E.2d 696, 702.) Testimony can be excluded where it is merely cumulative of other testimony or evidence. Ward, 101 Ill. 2d at 456, 463 N.E.2d at 702.

In this case, given the detailed testimony regarding the relationship between defendant and Bruce through March 1981, the testimony of repeated harassment throughout 1981, including specific incidents of harassment and abuse that the record indicates ended more than a month before the abduction, further elaboration could be deemed cumulative. Thus, the trial court acted within its discretion in this instance.

II

Defendant next contends that the trial court erred in refusing to include definitions from the 1986 Act in the jury instructions. Generally, the decision to submit a nonpattern instruction to the jury rests within the sound discretion of the trial court. (People v. Matthews (1984), 126 Ill. App. 3d 710, 713, 467 N.E.2d 996, 999-1000.) Jury instructions generally must convey to a jury the correct principles of law, so that the jury can apply the law to the facts of the case and arrive at a proper conclusion. (People v. Hester (1989), 131 Ill. 2d 91, 98, 544 N.E.2d 797, 801.) A defendant is entitled to an instruction consistent with her defense if it is supported by evidence. People v. Solis (1991), 216 Ill. App. 3d 11, 18, 576 N.E.2d 120, 124.

In this case, the instructions conveyed the correct principles of law to the jury and included defendant’s statutory defense. Defendant requested an instruction containing language from the 1986 Act, but nonpattern instructions in criminal cases should be simple, brief, impartial and free from argument. (134 Ill. 2d R. 451(a).) The proffered instruction was long, complex and could have unduly drawn the jury’s attention to particular pieces of evidence. Accordingly, given the facts and circumstances presented by the record on appeal, we cannot say that the trial court abused its discretion in refusing defendant’s instruction.

Ill

Finally, defendant argues that the trial court erred by giving the jury IPI Criminal 2d No. 3.01, that did not require the State to prove the exact date of the abduction, because the statute of limitations was at issue. The State responds that the statute of limitations was tolled during the period that defendant was not usually and publicly resident in Illinois.

Defendant admits that an instruction relieving the State of the burden of proving the exact date of the offense may be proper. (See People v. Vaughn (1945), 390 Ill. 360, 370, 61 N.E.2d 546, 550.) Generally, the State need only prove that the offense was committed within the relevant limitations period and prior to the date the indictment was returned. See People v. Barlow (1989), 188 Ill. App. 3d 393, 403-04, 544 N.E.2d 947, 954.

In this case, the State sought IPI Criminal 2d No. 3.01 because it did not want to argue over whether the offense was committed when Rebekah was picked up on December 18, 1981, or when Rebekah was taken from Illinois on December 19, 1981, or when defendant failed to return Rebekah on December 20, 1981. Moreover, defendant does not dispute that she performed those acts on those dates and resided in Texas and California until her arrest in 1989. Given the facts and circumstances of this case, the trial court acted within its discretion in giving the instruction.

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

Affirmed.

MANNING, P.J., and O’CONNOR, J., concur.


author: JUSTICE GREIMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GLORIA VALDEZ, Defendant-Appellant.
    First District (3rd Division)
    No. 1—90—3256
    Opinion filed May 26, 1993.

      Michael J. Pelletier and Anna Ahronheim, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Theodore Burtzos, Susan Schierl, and Christopher Daddino, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE GREIMAN

delivered the opinion of the court:

Defendant, Gloria Valdez, was convicted of possession of controlled substance with intent to deliver based on the discovery of cocaine in a rest room of an airplane en route from Florida to Minnesota with a stopover in Illinois. The trial court imposed a 15-year prison term and a $50,000 fine.

On appeal defendant asserts that (1) the State failed to prove the crime beyond a reasonable doubt; (2) the State of Illinois did not have jurisdiction to try her for the crime because it did not occur in Illinois (Ill. Rev. Stat. 1985, ch. 38, par. 1 — 5); (3) the $50,000 fine imposed should be reduced because she is entitled to a credit of $5 per day for each day in custody before sentencing (Ill. Rev. Stat. 1987, ch. 38, par. 110 — 14); and (4) the mittimus must be corrected because it states the wrong offense of which she was convicted.

We find that venue in Cook County was not proved beyond a reasonable doubt and thus reverse defendant’s conviction.

The facts are not in dispute. On September 19, 1986, three passengers, i.e., defendant, Victor Valdez and Guillermo Valdez, boarded Northwest Airlines flight 701 in Miami, Florida. Flight 701 originated in Miami and was destined for Minneapolis-St. Paul, Minnesota, with one scheduled stop in Chicago, Illinois.

Prior to boarding, an airline ticket agent informed an airline service manager that two one-way tickets from Miami to Minnesota had been purchased for cash at the gate by Victor Valdez and Guillermo Valdez. Each ticket cost $160.

Prior to the plane’s departure, a flight attendant noticed that Victor and Guillermo Valdez separately entered a rest room, about 30 seconds apart. The flight attendant, thought that such behavior was unusual because passengers do not usually use the rest room before takeoff.

The airline service manager boarded the plane and the airline ticket agent identified Victor and Guillermo Valdez. The manager escorted the two men, with their carry-on luggage, off the plane and explained to them that “due to certain regulations, we had to bring them outside due to the fact that they fit certain criteria, and we were obligated to ask them off the plane.” The manager and a security agent searched the two men and their luggage for weapons but found none. The manager apologized to the two men, who then re-boarded the plane.

After takeoff, the flight attendant searched the rest room which Victor and Guillermo Valdez had previously entered and found four plastic sandwich-type bags containing cocaine with masking tape wrapped around each bag. The four bags were found underneath a trash liner in a garbage container located in a compartment below the sink. The flight attendant then locked the bathroom door, talked to the captain, and reopened the bathroom door. Later during the flight, the flight attendant saw the two men attempt to use the bathroom where the bags were found but it was occupied.

When flight 701 arrived in Chicago, four law enforcement officers boarded the plane, watched the passengers departing and remaining, and removed the four bags of cocaine from the bathroom. George Mays, a Chicago police officer, escorted defendant off the plane while other agents from the Drug Enforcement Administration escorted Victor and Guillermo Valdez off the plane.

In the passenger waiting room, Officer Mays asked defendant for identification and she produced her one-way airline ticket from Miami to Minnesota issued in the name of Louise Diaz and purchased with cash on the same day. After a field test revealed that the substance in the plastic bags was cocaine, defendant denied that the drugs belonged to her. Defendant stated that she was en route to Minneapolis to visit her son and perform witchcraft for $300. Defendant was allowed to leave after she permitted the officers to search her purse and to have her fingerprints and photograph taken. Defendant then was allowed to leave.

Subsequently, defendant’s fingerprints were found to match the latent prints recovered from the masking tape which sealed the plastic bags containing the cocaine. Defendant was arrested on March 15, 1988, approximately IV2 years after the flight at issue.

The jury found defendant guilty of possession of a controlled substance with intent to deliver. The trial court sentenced defendant to 15 years in prison and imposed a fine of $50,000.

On appeal, defendant first asserts that the State failed to prove beyond a reasonable doubt that she possessed cocaine in Cook County as charged in the information. Defendant concedes that sufficient proof exists to establish her possession of the contraband at an earlier point in time, most likely in Florida.

On the other hand, the State contends that either defendant or the two Valdez men for whose conduct she was allegedly “accountable, had constructive possession of the cocaine, with the requisite intent to deliver, at the time the plane passed through Cook County.”

As a threshold matter, we note that the Illinois Supreme Court recently reaffirmed the rule that “venue is a material allegation which must be proved beyond a reasonable doubt along with the other elements of an offense.” People v. Hagan (1991), 145 Ill. 2d 287, 300, 583 N.E.2d 494.

The State acknowledges the Hagan decision but nevertheless urges this court to reexamine the supreme court’s mandate that venue must be proven beyond a reasonable doubt. However, we cannot entertain the State’s request since an appellate court is bound by the decisions of the supreme court. People v. Pruitt (1992), 239 Ill. App. 3d 200, 606 N.E.2d 866; People v. Palmer (1986), 141 Ill. App. 3d 234, 238, 490 N.E.2d 154.

The information in the present case specifically stated “that on or about September 19, 1986, in the Cook County, Illinois Gloria Valdez committed the offense of possession of controlled substance with intent to deliver” in violation of section 401(a) of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1985, ch. 561/2, par. 1401(a)).

Section 401 provides that “it is unlawful for any person knowingly to manufacture or deliver, or possess with intent to manufacture or deliver, a controlled or counterfeit substance.” Ill. Rev. Stat. 1985, ch. 561/2, par. 1401.

To establish the crime of unlawful possession of narcotics with intent to deliver, the State must prove that the defendant had knowledge of the presence of narcotics and the narcotics were in the defendant’s immediate and exclusive control. People v. Ray (1992), 232 Ill. App. 3d 459, 461, 597 N.E.2d 756.

The dispute in the present case concerns the possession element of the crime which may be established by evidence of either actual or constructive possession. (People v. Maiden (1991), 210 Ill. App. 3d 390, 397, 569 N.E.2d 120; People v. Chicos (1990), 205 Ill. App. 3d 928, 935, 563 N.E.2d 893.) Only constructive possession is at issue here.

The key to constructive possession is control of the premises where the contraband is found. “Where drugs are found on premises rather than on defendant, the State must prove that the defendant had control of the premises in order to permit the inference that defendant had knowledge and control over the narcotics.” Ray, 232 Ill. App. 3d at 462 (the court reversed the defendants’ convictions due to scant evidence linking the three defendants to the apartment where the drugs were found).

Since possession may be joint (People v. Embry (1960), 20 Ill. 2d 331, 335-36, 169 N.E.2d 767), mere access by or presence of other persons to the area where drugs are found is not sufficient to defeat a charge of constructive possession. (People v. Eiland (1991), 217 Ill. App. 3d 250, 261, 576 N.E.2d 1185; People v. Kissinger (1975), 26 Ill. App. 3d 260, 263, 325 N.E.2d 28.) If two or more people share immediate and exclusive control or share the intention and power to exercise control, then each has possession. Eiland, 217 Ill. App. 3d at 261.

Indicia of control of the premises where contraband is found sufficient to constitute constructive possession generally, but not always, include factors such as ownership of the car (see, e.g., People v. Melgoza (1992), 231 Ill. App. 3d 510, 530, 595 N.E.2d 1261), rental of the apartment (see, e.g., Embry, 20 Ill. 2d 331, 169 N.E.2d 767), or habitation of the premises (see, e.g., People v. Lesure (1990), 195 Ill. App. 3d 437, 552 N.E.2d 363; People v. Hester (1980), 87 Ill. App. 3d 50, 409 N.E.2d 106). Thus, generally, the owner of a house or the tenant of an apartment or the owner of a car has béen held to possess drugs found on their respective premises.

In contrast, a mere visitor to a residence (see, e.g., Ray, 232 Ill. App. 3d 459, 597 N.E.2d 756) or one occupant of several persons in a vehicle (see, e.g., People v. Gore (1983), 115 Ill. App. 3d 1054, 450 N.E.2d 1342) does not generally satisfy the immediate and exclusive control element so as to constitute constructive possession.

In the present case, defendant clearly did not own, rent or reside in the airplane where the cocaine was found for the purpose of constructive possession nor is there any evidence that she entered the rest room at any time. At best, defendant was one passenger of more than 70 occupants (approximately 65 passengers plus crew members) on the plane. The mere presence of a defendant in the vicinity of contraband cannot establish constructive possession. Ray, 232 Ill. App. 3d at 462.

The State, however, asserts that defendant’s fingerprints were circumstantial evidence sufficient to connect her to the crime and that defendant and the two Valdez men engaged in suspicious behavior linking them to the crime.

Although possession may be proved by circumstantial evidence, “suspicion, no matter how strong, is insufficient to establish the elements of unlawful possession.” (People v. Evans (1986), 143 Ill. App. 3d 236, 239, 492 N.E.2d 1036.) Neither suspicious behavior in the vicinity where the contraband is found nor mere proximity to the contraband is sufficient to establish possession absent proof that the defendant had control over the place where the contraband was discovered. Melgoza, 231 Ill. App. 3d at 529; see also People v. Jackson (1961), 23 Ill. 2d 360, 178 N.E.2d 320; People v. Stewart (1975), 27 Ill. App. 3d 520, 327 N.E.2d 287; People v. Evans (1966), 72 Ill. App. 2d 146, 218 N.E.2d 781.

Notwithstanding the strong suspicion that the defendant possessed narcotics, the Illinois Supreme Court in Jackson reversed the defendant’s conviction where she had locked herself in the bathroom of her apartment when the police arrived, the bathroom had a window which opened onto an air well, and the police found narcotics among the debris at the bottom of the air well underneath the defendant’s window. The Jackson court found that “the most that can be said is that the defendant had access to the area, in common with the tenants of seven other apartments.” (Jackson, 23 Ill. 2d at 364.) The supreme court especially noted that “[w]e are not so naive as to ignore the very strong possibility, amounting perhaps to a probability, that the defendant was indeed in possession of the heroin. Mere probabilities, however, will not support a conviction.” Jackson, 23 Ill. 2d at 365.

Similarly, in the present case, we do not naively disregard the cogent argument that defendant, most likely with Victor and Guillermo Valdez, indeed possessed, at an indefinite time, the cocaine with intent to deliver. In fact, defendant conceded that sufficient evidence, i.e., her fingerprints on the tape which sealed the bags containing the cocaine, established her possession of the drugs at some point in time. However, we are faced with a particular point in time, i.e., when defendant was in Cook County.

We are not allowed the luxury of conjecture, speculation, or surmise as to how the narcotics arrived at where they are found and, therefore, the conviction cannot be allowed to stand. Stewart, 27 Ill. App. 3d at 523.

Based on our review of the evidence in the light most favorable to the prosecution, we believe that no rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt in Cook County. (People v. Young (1989), 128 Ill. 2d 1, 49, 538 N.E.2d 461.) Constructive possession is based on the defendant’s control of the premises where the drugs are located. In the present case, the drugs were located in the trash can in one of the rest rooms on an airplane in which defendant was but one of approximately 70 occupants.

Accordingly, we reverse defendant’s conviction due to the State’s failure to prove beyond a reasonable doubt that defendant, either individually or under the theory of accountability, possessed the cocaine in Cook County. In light of this reversal, we need not address the remaining issues raised in this appeal.

Judgment reversed.

RIZZI and CERDA, JJ., concur.