author: JUSTICE McLAREN

text:
    CENTRAL PRODUCTION CREDIT ASSOCIATION, f/k/a Northwest Production Credit Association, Plaintiff-Appellant and Cross-Appellee, v. ELMER HANS et al., Defendants (Julie Lindstrom, Defendant-Appellee and Cross-Appellant).
    Second District
    No. 2—88—1113
    Opinion filed October 19, 1989.

      James G. Madden, of Madden & Sisler, of Freeport, and Early, Collison, Tousey, Regan & Farrell, of Elgin (Stephen D. Tousey, of counsel), for appellant.
    H. Heller & Associates, of Naperville (H. Kent Heller, of counsel), for appellee.
   JUSTICE McLAREN

delivered the opinion of the court:

Plaintiff, Central Production Credit Association (CPCA), appeals from the trial court’s denial of its motion for judgment n.o.v. or, in the alternative, for a new trial on count I of its complaint and the court’s entry of a directed verdict for $18,512 in favor of CPCA on count II. Defendant Julie Lindstrom (Lindstrom) filed a cross-appeal claiming the court erred by finding that the action was not barred, in granting a new trial, and in denying her motion for fees pursuant to section 2 — 611 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 611). We affirm in part, reverse in part, and remand.

Elmer Hans, a farmer, along with his two sons Ronald and Terry, produced crops on various lands either owned or leased by the three men. In 1982, Elmer completely removed himself from the operations of the farms. The day-to-day activities were handled by Ronald and Terry. Elmer also had a daughter, Lindstrom, who was not engaged in the farming operations.

In 1979 and 1980, Ronald, Terry and Elmer Hans together -with their respective wives executed certain notes with plaintiff’s predecessor in interest. In 1980, the total amount outstanding under these notes was $550,000.. These notes were consolidated, and the Hanses agreed to pay $110,000 per year plus accrued interest until the total amount outstanding was paid off. The installments were due on April 1 of each year, and the payments were timely made in 1981 and 1982.

On April 1, 1983, the Hanses were only able to pay $50,000 of their 1983 obligation under the consolidation agreement. Also in 1983, the Hanses were participating in the United States government’s payment-in-kind (PIK) program. Participants in this program agreed to leave a certain number of acres unfarmed and in return received corn which the government had stored from previous surplusage. This com could then be sold and the proceeds kept by the participant. CPCA agreed to extend the time for payment of the $60,000 balance due until December 1983, the time at which the PIK corn could be sold.

It is apparent that the Hanses became concerned about the possibility that they would lose the farm. According to an affidavit of Evelyn Prins, Terry Hans’ former wife, the Hanses met with advisors in September or October 1983. These advisors presented a scheme in which the Hanses would dispose of certain assets and execute certain notes in favor of Lindstrom in an attempt to place these assets outside the reach of creditors. Additionally, the Hanses would attempt to give sufficient cash to Lindstrom to keep the farm operational. They would also invest any additional cash they had in commodities so when the farm was foreclosed upon they would be in a position to redeem it. According to the Hanses, the meetings with the advisor, Bennett Little, were to obtain advice pertaining to estate planning and commodity investing.

In October and November 1983, Ronald and Terry Hans sold their 1983 com crop. These transactions involved the corn that was actually produced by Ronald and Terry and not the corn received pursuant to the PIK program. The proceeds from these sales, $107,073.42, were deposited into an account maintained at Blunt, Ellis & Loewi, Inc. (BE&L). This account appears to be three accounts in one: a cash account, a money market account, and a commodities account. While there was only one account number assigned to this account, the account statement reflected activity in all three accounts.

Also, in November 1983, Ronald and Terry executed a demand promissory note in the amount of $250,000 made payable to Lindstrom. The note listed the account maintained with BE&L as “security for repayment.” In consideration for the note, Lindstrom gave Ronald and Terry “all of her rights to any estate that she may later inherit from her father or that she previously inherited from her mother.” The record is scant as to how these rights were valued at $250,000. Also, in November and continuing through February 1984, and on the advice of Bennett Little, Ronald and Terry purchased cattle commodities through BE&L. These commodities were purchased with monies in the BE&L account.

When the $60,000 balance on the 1983 installment payment became due in December 1983, Ronald and Terry requested an extension. Ronald and Terry, “for tax reasons,” did not want to sell the PIK com until January 1984. CPCA acquiesced in this request. However, the PIK com was not sold in January 1984. The Hans brothers thought that the price of com would increase so they held on to the PIK com.

On February 28, 1984, the PIK com remained unsold. Mike Anderson of CPCA met with Terry Hans. Anderson noted that the $60,000 balance due on the 1983 installment was overdue. This balance was supposed to have been paid in January 1984 out of the proceeds of the sale of the PIK com. Additionally, Anderson noted that the $110,000 installment for 1984 was due on April 1. Anderson informed Terry that CPCA would initiate collection action on the entire balance of the loan if both payments were not made.

On March 1, Lindstrom demanded payment on the $250,000 note executed by Ronald and Terry. On March 6, Lindstrom quitclaimed her real estate interest in the Hans farm properties to Ronald and Terry. Additionally, Lindstrom assigned any interest she had in the Hans farming operation to Ronald and Terry. The record is silent as to what the value of these interests was.

On March 12, Ronald and Terry filed documents with the Agriculture Stabilization and Conservation Service (ASCS) of the United States Department of Agriculture, indicating that they were splitting the crops on all lands farmed in 1984 on a 50/50 basis.

On March 13, Anderson met with Ronald and Terry and again requested that the PIK com be sold and the proceeds turned over to CPCA to satisfy the balance due from 1983. Anderson, also reaffirmed that the $110,000 installment for 1984 was expected to be received on time. The payments were not made, and on April 2, Anderson and Randy Peterson of CPCA met with Ronald and Terry. Payment of the $60,000 balance on the 1983 installment and the $110,000 installment for 1984 were demanded. Ronald and Terry informed the CPCA representatives that they could not pay the $110,000 1984 installment. They asked CPCA to wait until the 1984 crop was sold for payment. Additionally, Ronald and Terry stated that, instead of paying the $60,000 balance due from 1983, they wanted to use the proceeds from the sale of the PIK com to plant the 1984 crop.

Also in March, the commodities purchased by Ronald and Terry through BE&L were sold, and the proceeds were transferred from the BE&L commodities account into the BE&L cash account. On April 2, Ronald and Terry paid Lindstrom $203,996.27 pursuant to her March 1 demand for payment of the note. This payment was made out of the BE&L account.

Sometime in April, Lindstrom leased approximately 160 acres of land from Robert Helm and Howard Johnson for $11,000 per year. This land had been leased and farmed by Ronald and Terry in prior years. It was at Ronald’s request that the landlords leased the land to Lindstrom instead of him and Terry. The lease documents are dated March 1, 1984, but Lindstrom testified that they were not executed until after April 1.

On April 23, Anderson and two other representatives from CPCA met with Ronald and Elmer. The Hanses requested that they be allowed to retain the proceeds from the sale of the PIK corn. Additionally, they requested that CPCA grant an extension on the $110,000 1984 installment. Ronald informed the CPCA representatives that they were intending to farm the same number of acres in 1984 as they did in 1983. CPCA proposed that the Hanses sell the PIK corn and pay off the balance due on the 1983 installment. CPCA also offered to wait until the fall of 1984 for the 1984 installment if Ronald and Terry would assign their interest in 120 acres of land they were purchasing on contract from Elmer and his sister as additional collateral. CPCA would also loan the Hanses an additional $35,000 to facilitate the 1984 planting.

On April 27, Elmer deeded his home to Lindstrom, subject to a life estate in Elmer. As consideration for this transfer, Lindstrom paid off the outstanding mortgage balance of $20,905.92. This property was valued at $75,000 by the Hanses.

Anderson testified that on April 30, Ronald phoned Anderson and informed him that Ronald and Terry were not willing to assign their interest in the 120 acres as CPCA had requested. Ronald testified that he did not refuse to give the assignment. Instead, CPCA withdrew its offer before the Hanses could respond. On May 1, representatives of CPCA again met with Ronald and Terry. CPCA was presented with a financial statement dated May 1, 1984, and signed by Elmer, Ronald and Terry. The statement made no reference to the balance due Lindstrom by Ronald and Terry pursuant to the demand note. Ronald and Terry again refused to assign their interest in the 120 acres as additional collateral. Also, by this time, Ronald and Terry had prepared most of the acreage that was going to be farmed in 1984 for planting, and they had possession of the seed.

On May 2, a number of transactions between Lindstrom and the Hanses were executed. Elmer leased 400 acres to Lindstrom for $20,000 per year. Elmer testified that the lease was incorrect and it was actually 480 acres that were leased. This same acreage had been leased to Ronald and Terry for $50,000 to $60,000 per year in prior years. Additionally, Lindstrom only paid $10,000 of the rent, and the other $10,000 was forgiven.

Ronald and Terry assigned their interest in an installment contract for deed for 120 acres they were purchasing from Elmer and his sister to Lindstrom. The contract was originally entered into by William Hans, Elmer’s late father. The contract provided for payments of $1,000 per year until the purchase price of $144,000 was satisfied. William’s rights under the contract had been devised to Elmer and his sister. At the time of the assignment to Lindstrom, the outstanding balance on the contract was $131,000. In consideration for their rights under the contract, Lindstrom agreed to make all payments and abide by all terms, conditions and stipulations of the contract. No other consideration was given or requested. This land was listed as having a value of $320,000 on the financial statement dated May 1. As a result of this assignment, Lindstrom became the contract purchaser of the 120 acres.

Elmer also deeded to Lindstrom his one-half undivided interest in the 120 acres being sold to Ronald and Terry under the above-mentioned contract. Lindstrom paid $30,000 to Elmer for his interest as a contract seller. As a result of this transaction, Lindstrom became a contract seller of land in which she was also the contract purchaser pursuant to the above assignment.

Lindstrom also leased a total of 158 acres from Elmer, Ronald and Terry at a cost of $7,900 per year. Additionally, Ronald and Terry assigned their interest as lessee in an oral lease to farm 80 acres of land owned by Lyle Ashby. The lease amount was $5,500 per year.

As a result of the above transactions, Lindstrom was the lessee of approximately 878 acres of farmland at a total cost of $44,400 per year. Additionally, Lindstrom was the contract purchaser of 120 acres of farmland in which she owned a one-half undivided interest as contract seller. Prior to this time, Lindstrom had never engaged in farming operations as either a landlord or a tenant.

Anderson testified that on May 8, he received a phone call from Ronald. Ronald stated that he would not assign his rights under the contract for the 120 acres (it should be noted that, at this time, he could not have assigned his rights under the contract as he had already assigned them to Lindstrom on May 2), but would pay the $60,000 balance due on the 1983 installment from the proceeds of the sale of the PIK com. Ronald also asked Anderson to refrain from attempting to collect the loan and to wait until fall for the 1984 installment payment. Ronald testified that he does not remember this conversation.

On June 2, there were more transactions involving the Hanses and Lindstrom. Ronald and Terry transferred automobiles, snowmobiles and a boat to Lindstrom as further payment on the demand note. This property was valued at approximately $17,000. Ronald and Terry retained exclusive possession and use of all property transferred to Lindstrom.

On June 21, representatives of CPCA again met with Ronald. CPCA had learned that the PIK com was being sold and requested the proceeds of the sale. Ronald refused to tender the checks at this time but eventually the Hanses did tender checks totalling $60,479.88.

On July 12, in “Report of Acreage Reports” filed with the ACSC, Ronald and Terry listed themselves as producers on all land being farmed in 1984. They also assigned their rights to payments they were entitled" to under government programs to Lindstrom as security for “final rent payments that will be advanced.” The record does not reflect the value of these rights or the amount of money Ronald and Terry were entitled to under these government programs. The record is also silent as to any lease in which Lindstrom was the lessor and Ronald and Terry the lessees, or any lease in which Ronald and Terry were obligated under and Lindstrom was paying so as to give rise to an advancement of “final rent payments.” Early in October 1984, CPCA became aware that the com grown by the Hanses in 1984 was being marketed under the name of Julie Lindstrom.

PROCEDURAL HISTORY

On October 25, CPCA filed a replevin action seeking possession of all property listed on the security agreement executed by the Hanses and their wives. On November 15, pursuant to a court order and stipulation of the parties, the proceeds from the sale of the 1984 corn crop, which were arguably subject to the security interest of CPCA, were deposited with the clerk of the circuit court pending the final outcome of the proceedings. Also, possession of all property listed in the security agreement was to be turned over to CPCA.

On December 13, in a separate action, judgment was entered against the Hanses and in favor of CPCA on the original notes held by CPCA in the sum of $388,946.43.

On January 8, 1985, defendant Lindstrom filed a motion for summary judgment in the replevin action. This motion asked the court to find that any crops that had been grown in 1984, or the proceeds from the sale of those crops, were not subject to CPCA’s security interest. On February 4, 1985, the court granted Lindstrom’s motion in part. The court found that the proceeds from the sale of com grown on land known as the “Haring Farm” only were not subject to CPCA’s security interest and, therefore, ordered those proceeds to be released by the clerk to Lindstrom.

On March 24, 1986, CPCA amended its complaint by adding a second count requesting $107,073.42. This sum represented the proceeds of the sale of the 1983 com crop which were deposited in the BE&L account and later paid to Lindstrom pursuant to the demand note. CPCA alleged that it had a security interest in these proceeds and the earnings thereon. Lindstrom filed a motion to dismiss count II, and this motion was denied on May 27,1986.

The cause proceeded to a jury trial on both counts of the complaint. After the plaintiff’s case in chief and during the presentation of defendant’s evidence, the court informed the jury that it no longer had to concern itself with count II. The court entered a directed verdict on count II. The court found that the proceeds from the sale of the 1983 com crop were not traceable and, therefore, CPCA was not entitled to $107,073.42. The court did enter judgment for CPCA in the reduced amount of $18,512. This was determined by the court to be the “lowest intermediate balance.” Concerning count I, the jury returned a verdict in favor of Lindstrom, and the court entered judgment accordingly. The court also ordered the clerk to turn over the monies deposited with the court to Lindstrom.

On September 12, 1986, CPCA filed its post-trial motion. CPCA requested the court to enter judgment n.o.v. on count I of the complaint. CPCA also requested the court to set aside the $18,512 judgment on count II and enter judgment for $107,073.42, the amount sought in the complaint. Alternatively, CPCA requested the court to grant a new trial on both counts of the complaint. CPCA argued that there was error in the instructions given and also that it had discovered new evidence that would alter the outcome of the trial.

The new evidence that CPCA had discovered consisted of testimony by Evelyn Prins, former wife of Terry Hans. Prins testified in an affidavit to a plan undertaken by the Hanses to dispose of assets and thus defraud creditors. The affidavit provided details of the plan and recalled steps taken in furtherance of the plan. The court, after a hearing on the diligence of CPCA to discover this evidence prior to trial, granted CPCA’s motion for a new trial.

Defendant Lindstrom filed a petition for leave to appeal from the court’s grant of a new trial. This court denied Lindstrom’s petition on January 13, 1987. Lindstrom then filed a motion to vacate the order granting a new trial. The trial court denied this motion on procedural grounds. Lindstrom then filed a motion to reconsider her motion to vacate and also sought certification of the issue surrounding the grant of a new trial. The trial court denied the motion to reconsider but certified the issue. This court again denied Lindstrom’s petition for leave to appeal.

Prior to the retrial, Lindstrom filed a motion for summary judgment. Lindstrom also filed a motion for clarification asking the court to clarify if the retrial would be as to both counts of the complaint or only count I. The court denied summary judgment and stated that the new trial would be confined to count I of CPCA’s complaint.

On September 12, 1988, Elmer, Terry, Ronald and Judith Hans were dismissed from the lawsuit due to the court’s finding that the only relief sought was from Lindstrom. On September 30, Lindstrom filed a section 2 — 611 motion seeking fees incurred as a result of the preparation and filing of the affidavit of Evelyn Prins. Lindstrom also filed a motion seeking damages for loss of use of the monies being held by the court pending final outcome of the case. The case proceeded to trial, and the jury returned a verdict in favor of Lindstrom. The court entered judgment accordingly.

CPCA filed a timely notice of appeal. CPCA contends that the court erred in the initial trial by limiting its directed verdict on count II to $18,512. CPCA argues that it should have received judgment for $107,073.42. CPCA also contends that the court erred subsequent to the second trial by denying its motion for judgment n.o.v. or, in the alternative, for a new trial as to count I. Lastly, CPCA contends that the court improperly instructed the jury on the issues and law of the case.

Lindstrom filed a cross-appeal. Lindstrom contends that CPCA executed a release that constitutes a bar to this action. Lindstrom also contends that the trial court erred in granting CPCA’s motion for a new trial. Lastly, Lindstrom contends that the court erred by denying her section 2 — 611 petition for fees.

The first issue raised in the cross-appeal is whether the court erred in finding that the letter agreement of September 11, 1986, did not operate to release Lindstrom. The pertinent portions of the letter agreement are as follows:

“This letter will serve to confirm to you that Central Production Credit Association, formerly Northwest Illinois Production Credit Association, and the Federal Land Bank Association of St. Louis will not at any time on or after the date of this letter attempt to levy on any property owned by you to satisfy any judgment which would be outstanding in favor of said organizations ***.
This letter will also serve to confirm to you that there are no other notes or obligations of any kind which you have signed creating a debt due from you to Central Production Credit Association or the Federal Land Bank Association of St. Louis, and therefore, except for the judgments obtained in the above identified law suits, you have no further obligation to either Central Production Credit Association or the Federal Land Bank Association of St. Louis.” (Emphasis added.)

The letter was signed by:

“James G. Madden
On behalf of Central Production
Credit Association and Federal
Land Bank Association of St. Louis”

Lindstrom contends that this document constitutes a release, and the release of one joint debtor acts as a release of all joint obligors. CPCA contends that this document is not a release and is simply an agreement to refrain from a particular method of collection of a judgment and, at most, is a covenant not to sue. We agree with CPCA that this is not a release.

A release is a contract by which a party abandons a claim to the other party against whom the claim exists. (Aqua-Aerobic Systems, Inc. v. Ravitts (1988), 166 Ill. App. 3d 168, 171.) The interpretation of a release is governed by the principles of contract law. (Aqua-Aerobic, 166 Ill. App. 3d at 171.) When the written contract is clear and explicit, the court should determine the meaning and intention of the parties from the face of the document and enforce the contract as written. Costa v. Stephens-Adamson, Inc. (1986), 142 Ill. App. 3d 798, 800.

It is clear from the language of the document that the parties did not intend to release any claims existing at the time the document was signed. The agreement expressly acknowledges the existence of a judgment outstanding against Evelyn Prins. The agreement states that CPCA and the Federal Land Bank Association of St. Louis “will not *** attempt to levy on any property owned by you to satisfy any judgment.” It is clear from this language that the parties do not intend to release the claims against Evelyn Prins or any other party. The agreement simply recites in clear and unambiguous language that the judgment creditors will not attempt to levy on property owned by Evelyn Prins. This document is not a release and does not act as a bar to this lawsuit.

The next issue raised by the cross-appeal is whether the trial court erred in granting plaintiff’s motion for a new trial based upon the discovery of new evidence. It is within the trial court’s discretion to grant a motion for a new trial, and the court’s decision will not be disturbed absent a clear abuse of that discretion. (Ervin v. Sears, Roebuck & Co. (1976), 65 Ill. 2d 140, 144.) To support the grant of a new trial, the new evidence must: (1) appear to be of such conclusive character that it will probably change the result of the trial; (2) have been discovered since the trial; (3) be such as could not have been discovered before the trial by the exercise of due diligence; (4) be material to the issues involved; and (5) not be simply cumulative to evidence presented at the initial trial. Loitz v. Remington Arms Co. (1988), 177 Ill. App. 3d 1034, 1049, citing Powers v. Browning (1954), 2 Ill. App. 2d 479, 486-87.

Defendant claims that the first and third requirements were not established. Defendant points out that the result of the second trial was identical to that of the first. Therefore, the evidence could not have been of a conclusive character such that the result of the trial would be different.

Defendant misstates the law by claiming that “the evidence must be so conclusive as to guarantee a change in the outcome of the case.” The court, using the correct standard, found that the testimony of Evelyn Prins was of such a nature as to probably change the result of the trial if a new trial was granted. The court considered her position as a member of the family during the time period in question, and the court noted that she was a codefendant in the proceedings. Her testimony as to a conscious plan to defraud or hinder creditors could very well influence the jury’s verdict.

Defendant also asserts that the new evidence would have been discovered by plaintiff had it exercised due diligence. To support this contention, defendant points out that Evelyn Prins was a party to the lawsuit and should have been deposed prior to trial. Defendant cites Saad v. South Side Bank (1978), 62 Ill. App. 3d 493, for the proposition that the failure to do discovery cannot be the basis for the granting of a new trial.

The court held a hearing solely on the issue of the diligence exercised by plaintiff in discovering the new evidence prior to trial. While it is true that a failure to do discovery cannot be the basis for a new trial, the court noted that plaintiff engaged in extensive discovery. Plaintiff deposed Elmer, Ronald and Terry Hans and Julie Lindstrom. At no time during these depositions did anyone indicate that Evelyn Prins was present during the discussions involving “estate planning” or that Prins was privy to any activity that reasonably could be interpreted as relevant or material to these proceedings. Also, plaintiff did attempt to secure Prins’ presence by a Rule 237 request filed prior to trial. (107 Ill. 2d R. 237.) The court concluded that the plaintiff did exercise due diligence in this cause and, therefore, the motion for a new trial was granted. We find that the court conducted a full and fair hearing and it was not an abuse of discretion to grant a new trial in this cause.

Defendant also claims in her cross-appeal that the court erred in denying her motion to have the jury assess the amount of damages sustained as a result of her loss of use of her property. Defendant’s argument is confusing and sets forth no authority whatsoever to support her position. This is done in violation of Supreme Court Rule 341(e)(7) (113 Ill. 2d R. 341(e)(7)). It is well established that bare contentions without citation to authority do not merit consideration on appeal. (Britt v. Federal Land Bank Association (1987), 153 Ill. App. 3d 605, 608.) Defendant has waived this contention.

The last issue raised by defendant’s cross-appeal is whether the trial court erred in denying defendant’s petition for fees pursuant to section 2 — 611 (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 611). Defendant contends that the affidavit filed by Evelyn Prins was false. Defendant notes that Prins’ testimony at the second trial did not coincide exactly with the statements made in her affidavit. Therefore, defendant contends that the affidavit was a false pleading under section 2 — 611 and attorney fees are warranted.

We find that this contention lacks merit. Defendant has not established that the affidavit in question is false. While Prins’ testimony is not a verbatim recitation of her affidavit, it is not inconsistent or contrary to the affidavit. Additionally, defendant has not cited any authority supporting her request for fees. As previously stated, this is in violation of Supreme Court Rule 341(e)(7) (113 Ill. 2d R. 341(e)(7)). The award of attorney fees is not warranted under the facts of this case. Therefore, the court was correct in not awarding defendant fees pursuant to section 2 — 611.

The first issue raised by the plaintiff on appeal is whether the trial court erred by entering a directed verdict on count II for $18,512. The court held that plaintiff was entitled to the proceeds of the sale of the 1983 com crop but only to the extent that the proceeds could be identified and traced. The court applied the lowest intermediate balance rule and found that plaintiff was only entitled to $18,512. A directed verdict was entered for that amount.

It is undisputed that plaintiff had a security interest in the proceeds from the sale of crops grown in 1983. Plaintiff contends that these proceeds are easily traced to Lindstrom. The proceeds, $107,073.42, were deposited in the account maintained with BE&L. Funds were transferred from the cash account to the commodities account when commodities contracts were purchased. The contracts were later sold and the proceeds transferred back into the BE&L cash account. Lindstrom was then paid out of this account, and the remaining balance was zero. Plaintiff contends that the court erred in applying the lowest intermediate balance rule and should have entered judgment in its favor for $107,073.42, the total proceeds from the sale of the 1983 crop.

The defendant contends that the lowest intermediate balance rule applies. Further, plaintiff did not establish that the money paid to Lindstrom was money in excess of the lowest intermediate balance. Defendant argues that the plaintiff has not shown that Lindstrom is in possession of any particular property over which plaintiff has a security interest, i.e., plaintiff cannot trace the proceeds from the sale of com out of the BE&L account, back into it, and then to Lindstrom. Therefore, if plaintiff is entitled to any money, the amount is limited to the lowest intermediate balance of $18,512. Additionally, defendant claims that this sum was arrived at by agreement of the parties.

Initially, we note that the plaintiff denies that there was an agreement with respect to the entry of a directed verdict in the amount of $18,512. We have reviewed the record and found that while plaintiff raised this issue as error in both of its post-trial motions, defendant did not mention this agreement to the trial court when rebutting plaintiff’s arguments. Furthermore, there is no evidence in the record that the court entered the directed verdict pursuant to agreement. Therefore, we find that the parties were not in agreement regarding the entry of a directed verdict.

In C.O. Funk & Sons, Inc. v. Sullivan Equipment, Inc. (1982), 89 Ill. 2d 27, the plaintiff sold a farm implement business to the defendant. The defendant executed a security agreement in favor of the plaintiff to secure payment of the unpaid purchase price. The security agreement covered specific inventory, equipment and the proceeds from the sale thereof. The defendant sold certain inventory, and, instead of giving the proceeds to plaintiff, the defendant deposited the proceeds into its general business account. From this account, the defendant purchased new inventory. The inventory purchases were far in excess of the amount of proceeds deposited in the general business account and were partly purchased with money borrowed from a bank. The bank received a security interest in the new inventory and any after-acquired property. The defendant experienced financial difficulties and was forced to auction off the new inventory. The plaintiff sought to recover the amount of the proceeds from the monies taken in at the auction. Plaintiff claimed its security interest was superior to the bank’s. The court stated that plaintiff would only be entitled to the monies taken in at the auction if it could identify and trace the monies back to the proceeds deposited in the general business account. The court applied the lowest intermediate balance rule to trace the proceeds. The court explained the rule as follows:

“The rule, which operates on a common-sense view that dollars are fungible and cannot practically be earmarked in an account, provides a presumption that proceeds remain in the account as long as the account balance is equal to or greater than the amount of the proceeds deposited. The proceeds are ‘identified’ by presuming that they remain in the account even if other funds are paid out of the account. If Sullivan is likened to the trustee of a constructive trust imposed because he commingled funds, then the lowest-intermediate-balance rule directs that Funk’s proceeds in Sullivan’s account are preserved to the greatest extent possible as the account is depleted. [Citations.] Under the rule, however, if the balance of the account dips below the amount of deposited proceeds, Funk’s security interest in the identifiable proceeds abates accordingly. This lower balance is not increased if, later, other funds of the debtor are deposited in the account, i.e., the added amounts are not subject to an equitable lien, unless the latter deposits are made in restitution.” (89 Ill. 2d at 31-32.)

The court stated that since the plaintiff was asserting a prior security interest, the plaintiff had the burden of identifying and tracing the proceeds. The plaintiff could not show that “the proceeds” were used to purchase a specific item of inventory so the security interest in the proceeds did not attach to any specific item sold at the auction. Additionally, the plaintiff produced no evidence of the balance in the defendant’s business account during the time in question so the lowest intermediate balance was never established. Therefore, the proceeds that the plaintiff claimed he was entitled to had not been identified as remaining in the account.

Comment d to section 212 of the Restatement of Restitution, which discusses the lowest intermediate balance rule, provides:

“The rule stated in this Section is not applicable where the money withdrawn or traceable proceeds of that money are redeposited. If the money withdrawn from the account is subsequently redeposited in the account, the effect is the same as though the withdrawal had not been made, and the claimant's lien is not limited to the lowest intermediate balance. It is immaterial whether the money withdrawn was itself redeposited, or the money withdrawn was invested and the investments were sold and the proceeds were redeposited.” Restatement of Restitution «212, comment d (1937).

It is undisputed in this case that CPCA had a security interest in the corn grown by the Hanses in 1983. It is also clear that when the corn was sold, CPCA’s security interest attached to the proceeds. (See Ill. Rev. Stat. 1987, ch. 26, par. 9 — 306.) The Hanses admit that the proceeds were deposited into the account maintained at BE&L. The Hanses also admit that monies from this account were used to purchase contracts for cattle commodities. The contracts were sold and the proceeds redeposited in the BE&L account. Lindstrom was then paid with monies in this account.

This situation is identical to the one set forth in comment d to section 212. Specifically, the traceable proceeds of the sale of the 1983 corn crop were withdrawn from the BE&L account, used to purchase specific items or investments, the investments were sold, and the proceeds were redeposited in the BE&L account. The lowest intermediate balance rule does not apply here, as the proceeds are treated as if they were never withdrawn. Plaintiff’s lien is not limited to the lowest intermediate balance. Additionally, this case is distinguishable from Funk in that plaintiff here has been able to trace the proceeds of the sale of a secured item. Applying the exception to the rule set forth in comment d, the proceeds never left the account and are clearly traceable to Lindstrom. Plaintiff’s security interest remains attached to the total proceeds from the sale of the 1983 com crop. When Lindstrom took possession of these proceeds, she did so subject to plaintiff’s security interest.

It appears that the trial court erred in applying the lowest intermediate balance rule. Therefore, while the directed verdict for plaintiff should be affirmed, the case should be remanded and the trial court directed to enter judgment as a matter of law for plaintiff in the sum of $107,073.42.

We note that in its complaint, plaintiff also requested the earnings on the $107,073.42 as additional relief. There was no evidence presented at trial to establish what the earnings were. Plaintiff did not raise this issue at trial or on appeal. Therefore, plaintiff is only entitled to the amount of the proceeds deposited, $107,073.42.

The next issue as framed by appellant is whether the court erred in denying plaintiff’s motion for judgment n.o.v. or, alternatively, for a new trial on count I of plaintiff’s complaint. Factually, this translates into who is entitled to the proceeds from the sale of the 1984 com crop. These proceeds are currently being held by the clerk of the circuit court. It is undisputed that Elmer, Ronald and Terry Hans granted a security interest to CPCA in:

“All the following crops: Corn, Oats, Soybeans, Hay, Wheat and Pasture which are now or will during the term of this Security Agreement become growing: (1) upon the farm real estate occupied, owned or operated by debtor.”

The security agreement went on to identify and describe certain tracts of land that the Hanses were farming. This document was executed on June 6,1983.

CPCA contended that in 1984, Ronald and Terry Hans farmed the land listed in the security agreement. Therefore, CPCA had a security interest in the crops grown on those lands in 1984. Additionally, when the crops grown in 1984 were sold, CPCA’s interest attached to the proceeds. If Lindstrom has any interest in these proceeds, it was obtained through a series of fraudulent transactions.

After the first trial, the jury returned a verdict stating that Lindstrom was the owner of the crops grown on the land in question. After the second trial, the jury returned a similar verdict. Plaintiff argues that, based upon the evidence, this conclusion is in error and should not be allowed to stand.

Lindstrom claims that CPCA has waived this issue. Lindstrom argues that the plaintiff did not set forth a claim of fraudulent conveyances in its complaint, did not present this claim at trial and did not include this claim in its post-trial motion. Therefore, this claim is waived.

Count I of plaintiff’s amended complaint contains the following allegations:

“4. The property is wrongfully detained by the defendants.
* * *
9. That whatever claims are asserted by the defendant, Julie Lindstrom, arise out of transactions that exist in form only and are not founded upon any substantive transactions.
10. In the alternative if the transactions upon which the defendant, Julie Lindstrom, claims she has an interest in the corn raised in 1984 are substantive in nature, said transactions were entered into by the defendants with the intent to defraud the plaintiff in that the defendants or some of them concealed the aforesaid transactions from the plaintiff, in order to influence the plaintiff not to take any action to attempt to collect the debt due from all of the defendants except Julie Lindstrom to the plaintiff and that such concealment was intended to fraudulently deceive and injure the plaintiff and that the plaintiff was injured in that it took no action to repossess the machinery and equipment used by the defendants or some of them in the farming operation in the cropping year 1984 until after the growing season was over and withheld taking any action to attempt to collect the debt due to it from the defendants.”

Plaintiff’s arguments and proofs at trial were clearly directed at the overall scheme or plan carried out by Lindstrom and the Hanses. Plaintiff’s brief on appeal contains an extended discussion of the principles applied in cases in which relief is requested due to fraudulent conveyances. This analysis is used to further set forth the overall scheme engaged in by the defendants.

Defendant is correct in stating that plaintiff did not ask the trial court to set aside conveyances due to their fraudulent nature. Defendant is also correct in stating that this request was not included in plaintiff’s post-trial motion. However, defendant is not correct in characterizing plaintiff’s arguments to this court as a request to set aside conveyances. Plaintiff has presented this theory to bolster its contention that there was a scheme to defraud or hinder creditors. The fraudulent conveyances were only a part of that scheme. We interpret plaintiff’s argument to be based upon a fraudulent scheme engaged in by the defendants. These allegations were set forth in the complaint, presented at trial, and reiterated in plaintiff’s post-trial motion. We do not find that plaintiff has waived the argument that the court erred in denying its motion for judgment n.o.v. or, in the alternative, a new trial.

A judgment n.o.v. should be entered only when all the evidence, when viewed in the light most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510.) A new trial should be granted when the jury’s verdict is against the manifest weight of the evidence. Pedrick, 37 Ill. 2d at 509.

Plaintiff in this case is not seeking to rescind conveyances of property in order to establish its right to the proceeds of the 1984 corn crop. This tactic is appropriate because most of the corn grown in 1984 was not grown on land conveyed to Lindstrom by Elmer, Ronald and Terry Hans. The corn was grown on land technically leased by Lindstrom. This is not a case in which the Hanses were lessees and assigned their rights as lessees to Lindstrom. Lindstrom executed these leases in her own name. The only interests in land that were conveyed were Elmer’s interest as contract seller and Ronald’s and Terry’s interest as contract purchasers of a 120-acre tract. Ronald and Terry also assigned their interests as lessees under an oral lease to farm the 80-acre Ashby farm. Plaintiff is not attempting to have these conveyances set aside. Plaintiff uses the fraudulent-conveyance analysis to show that Lindstrom’s and the Hanses’ conduct was part of a scheme devised to defraud creditors.

In Robinson v. Brems (1878), 90 Ill. 351, two brothers operated a cigar and tobacco shop. They were burned out in 1871 by the great Chicago fire. At the time of the fire, they were approximately $28,000 in debt to certain creditors. In 1872, the brothers opened a restaurant, saloon and cigar business, but the business was put in the appellants’, their wives’, names. This business generated between $4,000 and $5,000 profit per year. The previous creditors attached certain property used in the business to satisfy the existing debt. The appellants filed a replevin action claiming the property did not belong to their husbands and could not be used to satisfy the outstanding debt. The appellants argued that the money used to start the new business was their separate property. They also claimed that their husbands were simply employees of the business. The creditors claimed that this was all a fraudulent device to protect the husbands’ property and to prevent the collection of debts previously incurred by them. The creditors also presented evidence to show that insurance money collected by the brothers after the fire was unaccounted for. The creditors contended that this was the money used to start the new business. The court stated:

“[T]here is much to be found in the surrounding circumstances and in the conduct of the parties, *** tending strongly to show a collusive and fraudulent arrangement to hinder and delay creditors in the collection of their debts.” (Robinson, 90 Ill. at 353.)

The court, addressing an instruction given at trial, found that a correct principle of law was announced by the following instruction:

“[If] a collusive arrangement existed between appellants and their husbands, by which it was secretly understood between them the names of appellants should be used in the business, and that appellants should hold their husbands’ property and business, then such conduct was fraudulent and unlawful as against the distress warrant, and in such case the jury should find against them.” Robinson, 90 Ill. at 355.

In Alsdurf v. Williams (1902), 196 Ill. 244, the court was faced with the same issue. While the court held that under the facts of that case there was no fraud, and the business was truly the property of the wife, the court did set forth the following principle:

“A husband cannot rightfully carry on his business in his wife’s name under an assumed agency. He cannot use his wife’s name as a mere device to cover up his property or keep from his creditors the profits of a business which is, in fact, his. A wife cannot hold the property of her husband to delay, hinder or defraud his creditors.” (Alsdurf, 196 Ill. at 248.)

(See also Osborn v. Albers (1937), 365 Ill. 631, 635.) “[T]he question of fraud is one of fact to be determined in each case, but, because of the opportunity for fraud and connivance, such an arrangement between husbands and wives will be closely scrutinized.” Osborn, 365 Ill. at 637.

In the case at bar, plaintiff has presented the argument that Lindstrom and the Hanses engaged in a fraudulent scheme to defraud, delay, or hinder the Hanses’ creditors. Similar to Robinson, the Hanses’ farming operations were placed in another’s name. There was a series of transactions in which assets were conveyed or assigned to Lindstrom. It is admitted that Ronald and Terry provided all the labor on the farms. There is no evidence of any wages paid to them for this labor. It is also admitted that Lindstrom had never engaged in farming operations prior to 1984. In fact, in March 1984 Lindstrom assigned any interest she had in the Hanses’ farming operation to Ronald and Terry. It is paradoxical that shortly after doing this, she virtually took over the entire Hanses’ farming operation. Additionally, the money to run the farming operation was the money that Terry and Ronald paid Lindstrom on the note. It is abundantly clear that Lindstrom and the Hanses set out to hinder or delay creditors.

While the above-cited cases involve a marital relationship, we see no reason not to extend it in this case to father/daughter or brother/sister relationships. The family relationship of the parties should cause their conduct to be closely scrutinized. (See Martin v. Duncan (1895), 156 Ill. 274, 280-81; Beery v. Hurd (1938), 295 Ill. App. 124, 132.) It is clear that the Hanses carried on their farming operation in Lindstrom’s name in an attempt to place the fruits of the operation, the crops or proceeds therefrom, out of the reach of creditors. These “fruits” could then be used to continue the operation. It is the substance of the transactions, not the form, that determines the rights of the parties. (Reese v. Melahn (1973), 53 Ill. 2d 508, 513.) Courts will disregard names and penetrate disguises to determine the substance of an act or transactions and will not be misled by devices and subterfuges. (Roth v. Carlyle Real Estate Limited Partnership VII (1984), 129 Ill. App. 3d 433, 438.) Equity will not allow a person to benefit from a fraud. (Callner v. Greenberg (1941), 376 Ill. 212, 215.) These general equitable principles support the finding that these acts and transactions were fraudulent. Lindstrom and the Hanses were attempting to hide behind form and ignore the actual substance of their conduct. They should not benefit from this attempt.

We believe the Pedrick standard for the entry of a judgment n.o.v. has been met in this case. When reviewing the evidence in the light most favorable to defendant, the evidence overwhelmingly favors plaintiff, and the contrary verdict reached in this case cannot stand. Therefore, the trial court was incorrect in denying plaintiff’s motion for a judgment n.o.v.

Due to the decisions previously set forth, it is not necessary to address plaintiff’s claims of error concerning the instructions given.

The decision to deny plaintiff’s motion for judgment n.o.v. is reversed, and the cause is remanded with instructions to enter judgment for plaintiff on count I of the complaint in the amount of the proceeds held by the clerk of the circuit court of Carroll County. The judgment entered in favor of plaintiff on count II is affirmed, and the cause is remanded with instructions to the court to enter judgment for $107,073.42 in favor of plaintiff and against defendant Lindstrom on this count.

Affirmed in part, reversed in part, and remanded.

LINDBERG and REINHARD, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHRISTOPHER BROM, Defendant-Appellant.
    Second District
    No. 2—89—0261
    Opinion filed October 19, 1989.

      Allan J. Marco, of Marco & Stefanos, of Downers Grove, for appellant.
    James E. Ryan, State’s Attorney, of Wheaton (William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McLAREN

delivered the opinion of the court:

Defendant, Christopher Brom, appeals the trial court’s denial of his motion to vacate his guilty plea and sentence for driving under the influence of alcohol (DUI) in violation of section 11 — 501.1 of the Illinois Vehicle Code (Ill. Rev. Stat. 1987, ch. 951/2, par. 11 — 501.1). Upon the entry of defendant’s guilty plea, the trial court sentenced defendant to 12 months’ probation, participation in a DUI program and a $500 fine. Defendant contends that he is eligible to receive court supervision pursuant to section 5 — 6—1(d) of the Unified Code of Corrections (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 6—1(d)). We affirm.

On May 8, 1983, defendant was arrested for DUI; he was assigned one year of court supervision for this offense on August 30, 1984. On August 20, 1988, defendant was again arrested and charged with DUI and improper lane usage. He submitted to a chemical test at the Willowbrook police department, and the arresting officer’s sworn report notes the test result as 0.19% blood-alcohol content. The Secretary of State notified defendant of the statutory summary suspension of his driver’s license and driving privileges effective October 5, 1988, through January 5, 1989. The Secretary’s notice stated that defendant was a first offender.

Defendant filed a petition for a judicial driving permit which the trial court granted. Defendant’s full driving privileges were restored on January 10, 1989.

Defendant subsequently pleaded guilty to the charges of DUI and improper lane usage and stipulated that there existed a sufficient factual basis for the charges. The court accepted defendant’s pleas. In aggravation, the State offered defendant’s driving record, including the fact that defendant had been placed on court supervision for the earlier DUI offense on August 30, 1984. For this reason, the State opposed court supervision and recommended one year of probation and counseling. The trial court sentenced defendant to 12 months’ probation, participation in a DUI program and a $500 fine. In announcing this sentence, the trial court opined that the sentencing statute was unclear as to whether the court should consider the five-year period to commence with the arrest date of a defendant’s earlier offense, the disposition date, or the end-of-supervision date. The court took the position that the statute should be interpreted in the manner “whichever is worse for the defendant” and found that defendant was not eligible for court supervision.

On appeal, defendant claims that since the Secretary of State considered him a first offender with regard to the statutory summary suspension of his driving privileges for only three months and with regard to the issuance of a judicial driving permit pursuant to section 6 — 206.1(a) of the Illinois Vehicle Code (Ill. Rev. Stat. 1987, ch. 95V2, par. 6 — 206.1(A)(a)), the court should consider him a “first offender” for sentencing purposes as well.

Although defendant obtained a judicial driving permit, it would appear from the record that he was ineligible to file a petition in this regard. The applicable statute provides, in pertinent part, “the first offender as defined in section 11 — 500 may petition *** for a Judicial Driving Permit.” (Ill. Rev. Stat. 1987, ch. 951/2, par. 6— 206.1(B)(a).) In turn, section 11 — 500 defines “first offender” as follows:

“[A]ny person who has not had a previous conviction or court assigned supervision for [DUI] *** within the last 5 years.” (Ill. Rev. Stat. 1987, ch. 951/2, par. 11 — 500.)

In spite of the fact that defendant had received court-assigned supervision on August 30, 1984, and was arrested less than four years later for DUI, he successfully petitioned for a judicial driving permit. We believe the Secretary’s finding that defendant was a first offender was erroneous, and the judicial driving permit was improperly issued.

Defendant further argues that the trial court had discretion to assign him court supervision pursuant to section 5 — 6—1(d) of the Uniform Code of Corrections (Ill. Rev. Stat. 1987, ch. 38, par. 1005— 6 — 1(d)) because this statute is somewhat ambiguous and ambiguity in criminal statutes is to be resolved in favor of defendants. Although defendant correctly identifies the legal principles for construction of ambiguous criminal statutes, he fails to provide a citation to authority as required in Rule 341(e)(7) (113 Ill. 2d R. 341(e)(7)). However, even if defendant provided an appropriate citation, this principle is unavailing as the statute is not ambiguous. It is well established that in construing a statute, the court is obligated to ascertain and give effect to the intent of the legislature, and, generally, the language of the statute itself is the best indicator of that intent. (People v. Goins (1988), 119 Ill. 2d 259, 265; People v. Duff (1989), 181 Ill. App. 3d 324, 325.) When the language of the statute is clear and unambiguous, the court is not authorized to resort to supplementary principles of statutory construction (People v. Lueloff (1987), 161 Ill. App. 3d 432, 435), and it may not read into such unambiguous statutory language exceptions, limitations or conditions (Goins, 119 Ill. 2d at 265).

The statute at issue, section 5 — 6—1(d) of the Unified Code of Corrections, provides that court supervision is not available as a sentencing alternative for a DUI defendant who has done one of three things in the last five years. Those three things are: (1) defendant has been convicted of DUI or a similar local offense; (2) defendant has been assigned court supervision for DUI or a similar local offense; (3) defendant has pleaded guilty to or stipulated to the facts supporting a charge of reckless driving or a similar local violation pursuant to a plea agreement. (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 6—1(d).) There is not a fourth category included in this statute which states, “the defendant has been arrested for DUI or a similar local violation.” The plain language of the statute convinces us that the five-year period contemplated commences with the subject defendant’s conviction, assignment of supervision or guilty plea. The statute does not state, nor will we imply, a fourth alternative, viz., that the five-year period is to commence with a defendant’s arrest. Thus, we conclude that defendant’s argument that the trial court had discretion to grant him supervision is simply not supported by the plain and unambiguous language of the section. We notice the conspicuous absence of references to legal authority to support defendant’s interpretation of this statute in violation of Rule 341(e)(7) (113 Ill. 2d R. 341(e)(7)).

In view of the plain and unambiguous language of section 5— 6 — 1(d), we determine that defendant is not eligible to receive court supervision since he had been assigned court supervision for DUI within five years of the filing of charges of the instant DUI. The trial court’s finding that the statute is ambiguous and should therefore be interpreted in whichever manner is worse for a defendant is not correct; however, its conclusion that it lacked discretion to grant defendant court supervision is correct. We may affirm the trial court’s judgment even if the court’s reasoning is incorrect. (Beckman v. Freeman United, Coal Mining Co. (1988), 123 Ill. 2d 281, 286.) Accordingly, the order of the circuit court of Du Page County is affirmed.

Affirmed.

REINHARD and WOODWARD, JJ, concur.


author: JUSTICE REINHARD

text:
    FRATERNAL ORDER OF POLICE LODGE NO. 109, Petitioner-Appellant, v. THE ILLINOIS LABOR RELATIONS BOARD et al., Respondents-Appellees.
    Second District
    No. 2—89—0183
    Opinion filed October 18, 1989.

      Anne Wells Clark, of Asher, Pavalon, Gittler & Greenfield, Ltd., of Chicago (Joel D’Alba, of counsel), for petitioner.
    Neil F. Hartigan, Attorney General, of Springfield, and Jacalyn Zimmerman, of Illinois State Labor Relations Board, of Chicago (Robert J. Ruiz, Solicitor General, and Valerie J. Peiler, Assistant Attorney General, of Chicago, of counsel), for respondent Illinois State Labor Relations Board.
    James E. Ryan, State’s Attorney, of Wheaton, and Elise A. Elconin, of Seyfarth, Shaw, Fairweather & Geraldson, of Chicago (Joseph S. Bongiorno, Assistant State’s Attorney, and James Baird, of counsel), for respondents County of Du Page and Du Page County Sheriff’s Department.
   JUSTICE REINHARD

delivered the opinion of the court:

Petitioner, the Fraternal Order of Police, Lodge No. 109 (FOP), filed a certification petition with the Illinois Labor Relations Board (ILRB) pursuant to the Illinois Public Labor Relations Act (Ill. Rev. Stat. 1987, ch. 48, par. 1601 et seq.) naming as respondents the County of Du Page, the Du Page County sheriff’s department, and the ILRB. The petition sought certification of a bargaining unit consisting of all peace officers below the rank of sergeant employed by Du Page County, excluding bailiffs and correctional officers. Following a hearing before a hearing officer of the ILRB, at which it was determined the bargaining unit included bailiffs and correctional officers, the ILRB, upon review, found that the bargaining unit should include bailiffs and exclude correctional officers. The FOP appeals that part of the ILRB decision including bailiffs in the peace-officer bargaining unit. Respondents, the County of Du Page and the Du Page County sheriff’s department, in a separate appeal, challenged the exclusion of the correctional officers, and this court dismissed the appeal as moot. County of Du Page v. Fraternal Order of Police, Lodge 109 (1989), 183 Ill. App. 3d 1027, 539 N.E.2d 863.

The only issue raised in this appeal is whether the Du Page County bailiffs should be included in the peace officer bargaining unit sought by the FOP.

The relevant facts may be briefly stated as follows. The Du Page County sheriff’s department employs three classifications of deputy sheriff: patrol officer, bailiff, and correctional officer. Deputy positions are filled by the merit commission, and under the current system, a deputy may not transfer from one classification to another without submitting a new application and going through the merit commission process. Additionally, there are four bureaus within the sheriffs department consisting of the administrative bureau, the criminal bureau, the corrections bureau, and the court security bureau.

Bailiffs are employed within both the warrants and transportation unit of the criminal bureau and the court security bureau. In the warrants and transportation unit, bailiffs are responsible for picking up prisoners at the jail and transporting them to medical facilities or to court and returning them. Bailiffs also search the prisoners prior to and following transport. Bailiffs also transport to Du Page County jail prisoners held in custody by municipal police departments or sheriffs’ departments in the five counties surrounding Du Page County.

Bailiffs who are employed in the court security bureau are also responsible for courtroom security and maintenance of order within the courtrooms and hallways. They further escort sequestered jurors and supervise jurors’ conduct. Bailiffs are authorized to and do on occasion make arrests in and around the courthouse. Bailiff Brechtel testified at the hearing that he has made arrests by order of a judge, on his own initiative as a result of a disturbance in or around a courtroom or hallway, and pursuant to request by assistant State’s Attorneys who identify wanted persons in the court facilities.

Bailiffs receive a two-week training course which consists primarily of court security and hostage negotiation. Bailiffs in the warrants and transportation unit are also trained in arrest, search and seizure, and civil liability. Bailiffs are also required to complete the State-mandated 40-hour firearms training course and to be recertified periodically by taking additional firearms training through the sheriff’s department.

Bailiffs, as well as patrol and correctional officers, are sworn and take an oath of office. They are uniformed, wear badges, and are authorized to carry firearms, although they do not always carry weapons in the courtroom.

An administrative agency’s findings of fact are prima facie true and correct and will not be disturbed unless they are against the manifest weight of the evidence. (Collura v. Board of Police Commissioners (1986), 113 Ill. 2d 361, 372-73, 498 N.E.2d 1148.) Further, as a general rule, courts will accord deference to the interpretation placed on a statute by the agency charged with its administration, but such agency’s interpretation is not binding and will be rejected when it is erroneous. (City of Decatur v. American Federation of State, County & Municipal Employees, Local 268 (1988), 122 Ill. 2d 353, 361, 522 N.E.2d 1219.) Here, the parties agree that we are concerned only with an interpretation of the statute, as applied to the facts, which is a question of law.

Section 3(s)(l) of the Illinois Public Labor Relations Act (Act) states, in pertinent part:

“(s)(l) ‘Unit’ means a class of jobs or positions which are held by employees whose collective interests may suitably be represented by a labor organization for collective bargaining. *** A bargaining unit determined by the Board to contain peace officers shall contain no employees other than peace officers unless otherwise agreed to by the employer and the labor organization or labor organizations involved.” (Ill. Rev. Stat. 1987, ch. 48, par. 1603(s)(l).)

Section 3(k) of the Act defines “peace officer” as:

“(k) ‘Peace officer’ means, for the purposes of this Act only, any persons who have been or are hereafter appointed to a police force, department or agency and sworn or commissioned to perform police duties, except the following persons shall not be included: part-time police officers, special police officers, auxiliary police as defined by Section 3 — 6—5 of the Illinois Municipal Code, night watchmen, ‘merchant police’, temporary employees, traffic guards or wardens, civilian parking meter and parking facilities personnel or other individuals specially appointed to aid or direct traffic at or near schools or public functions or to aid in civil defense or disaster, parking enforcement employees who are not commissioned as peace officers and who are not armed and who are not routinely expected to effect arrests, parking lot attendants, clerks and dispatchers or other civilian employees of a police department who are not routinely expected to effect arrests, or elected officials.” Ill. Rev. Stat. 1987, ch. 48, par. 1603(k).

We must, therefore, determine whether bailiffs employed by the Du Page County sheriff’s department are peace officers as defined by section 3(k) of the Act. Neither party cites, nor does our research disclose, any case interpreting this section of the statute under similar circumstances.

Section 3(k) defines peace officer as any person appointed to a police agency and “sworn or commissioned to perform police duties.” (Ill. Rev. Stat. 1987, ch. 48, par. 1603(k).) In the present case, there is no question that the bailiffs are appointed to the sheriff’s department and sworn in. The only issue which remains is whether they perform “police duties” as that term is used in the Act. We note at this point that we give effect to the term “peace officer” as it is defined in section 3(k), as the legislature apparently intended to provide, for purposes of the Act, an exclusive definition of “peace officer” within the Act. See Ill. Rev. Stat. 1987, ch. 48, par. 1603(k); see also 84th Ill. Gen. Assem., Senate Debates, June 26, 1985, at 115-16.

Generally, police duties encompass a wide variety of law enforcement and order-maintenance functions including arrest, crime prevention and deterrence, crowd control, investigation, providing aid, and creating and maintaining a feeling of security. (See Trends and Issues 89: Criminal and Juvenile Justice in Illinois, Illinois Criminal Justice Information Authority 26 (1989); see also J. Senna & L. Siegel, Introduction to Criminal Justice 183 — 92 (4th ed. 1987).) While we recognize the almost endless variations of police duties that might be found between various police agencies, or within a given agency, our concern is whether the Du Page County bailiffs perform police duties. Our inquiry, therefore, is not whether the bailiffs in Du Page County perform all possible police duties or whether they perform the same duties as the patrol officers; rather, we must determine whether the duties performed by Du Page County bailiffs are police duties.

The record establishes that bailiffs are uniformed and wear badges while performing their job functions. The fact that they are uniformed and wear a badge indicates that they are performing a crime prevention and deterrence function. Uniformed, and sometimes armed, bailiffs, visibly present in and around the courtrooms and hallways, certainly contribute to order maintenance. In fact, they are required to maintain the public order. The presence of the armed, uniformed bailiffs also contributes to a feeling of security, not only for witnesses, victims and courtroom personnel, but also for the general public who might be present. Additionally, the bailiffs do occasionally search various persons for weapons or contraband, which further contributes to a feeling of security and order maintenance.

The bailiffs also are authorized to and do make arrests in and around the court facilities. Bailiff Brechtel’s unrebutted testimony establishes that in his capacity as bailiff, he has arrested hundreds of persons as a result of a judge's directive, on his own initiative, and when requested to do so by assistant State’s Attorneys. It is clear that making arrests is an integral part of the bailiff’s duties.

We believe, under the particular circumstances present here, Du Page County bailiffs perform police duties as that term is used in section 3(k) of the Act and are, therefore, peace officers within the meaning of section 3(k).

We are mindful of the differences between Du Page County patrol officers and bailiffs in terms of the respective duties and training of each. We do not believe, however, that the legislature intended to require all persons included in a peace-officer bargaining unit to perform exactly the same police duties and have the same training. For example, we note that Du Page County detectives and Du Page County patrol officers, both of whom have been included in the proposed bargaining unit, do not perform the same police duties. The detectives, unlike the patrol officers, do not routinely wear uniforms, perform crowd control functions, write traffic tickets, or patrol in marked squad cars. Yet, it is indisputable that the detectives are peace officers within the meaning of section 3(k) of the Act. Consequently, whether bailiffs perform the same duties as patrol officers is of little consequence to the issue of whether the bailiffs perform police duties. While the required training for bailiffs and patrol deputies is different, the bailiffs do receive firearms training and court security and hostage negotiation training which is pertinent to the police duties they perform.

None of the exceptions set forth in section 3(k) of the Act are applicable here. Bailiffs are not one of the groups expressly set forth as being excluded from a peace-officer bargaining unit. Had the legislature sought to exclude bailiffs, as a general class, from inclusion in a peace-officer bargaining unit, it could have expressly done so, as it did with numerous other groups.

Neither do the Du Page County bailiffs fit within any of the enumerated exceptions in section 3(k). The FOP’s contention that the Du Page County bailiffs are special police is specious at best, and we do not find section 173 of the Chicago Municipal Code (Chicago Municipal Code §§173 — 1 to 173 — 9 (1984)), defining special police, to be relevant to this inquiry, as urged by the FOP. It is clear that Du Page County bailiffs do not fit within the definition of special police officer as set forth in a City of Chicago ordinance, and the ordinance itself states it is inapplicable to deputy sheriffs of Cook County.

For the foregoing reasons, we affirm the decision of the Illinois Labor Relations Board.

Affirmed.

UNVERZAGT, P.J., and INGLIS, J., concur.


author: JUSTICE WOODWARD

text:
      In re ESTATE OF HAZEL M. MOORE, A Disabled Person (William Moore, Appellant, v. Jacqueline May Gulbrandsen, Appellee).
    Second District
    No. 2—88—1192
    Opinion filed October 18, 1989.
    Rehearing denied November 17, 1989.
    Paul G. Brinkman, of Wheaton, for appellant.
    Edward T. Graham, of Wheaton, for appellee.
   JUSTICE WOODWARD

delivered the opinion of the court:

William Moore (William) appeals from the order of August 9, 1988, which discharged Jacqueline May Gulbrandsen (Jacqueline) as plenary guardian of the estate of Hazel Moore, a disabled person; the August 9, 1988, approval of Jacqueline’s final account; and the order of November 3, 1988, which denied William’s motion to vacate the August 9, 1988, orders. At issue is whether Jacqueline’s final report was sufficient to fulfill her duty to account for her administration of the estate.

This matter arises from the estate of Hazel M. Moore. On October 8, 1985, Jacqueline, Hazel’s daughter, filed a petition to appoint herself as guardian of her mother’s person and estate. The petition listed the approximate value of the estate as $30,000 in personal property, $80,000 in real property, and anticipated gross annual income of $11,000. The petition was granted on November 1, 1985. On December 31, 1987, Hazel died. Jacqueline was appointed executor of the decedent’s estate in a separate proceeding. Said appointment has no bearing on this appeal, which only addresses the plenary guardian’s final account.

No inventory or annual report was ever filed by Jacqueline, who presented her final account to the court on August 9, 1988. The final account is a five-page document, which lists receipts and disbursements for four bank accounts, one with Gary-Wheaton Bank and three with Du Page Trust Bank. A recapitulation is shown for each account. The first account shows total deposits of $65,447.97 and total disbursements of $63,688.99, for an ending balance of $1,758.98. The second account shows a total of $2,121.51 deposits and disbursements with a zero final balance. The third shows $19,702.33 receipts and disbursements with a zero final balance. The fourth account shows deposits of $26,932.79 and disbursements of $24,502.23, for an ending balance of $2,430.56. The transfers between the accounts are included as deposits and disbursements. There is a figure of total remaining cash from all deposits of $4,189.54, which equals the sum of the ending balance in the first and fourth bank accounts. Also, various shares of stocks in Commonwealth Edison Company, AT & T, and the Baby Bells were listed in the final account as assets of the estate.

William, son of Hazel Moore and Jacqueline’s brother, appeared through his counsel. He informed the court that he had just received the report the day before and needed time to review it before the final orders could be entered. In response, Jacqueline’s attorney suggested: “May I ask the Court to enter the Order and grant Counsel leave to come in and vacate it if he finds something about the Final Report rather than coming back to the court twice?” William’s counsel agreed to this procedure; the court approved the report and discharged Jacqueline of her duties.

Thirty days later, William filed a motion to vacate the August 9, 1988, orders on the ground that the receipts and records supporting the statement had not been made available for review. At the time of the hearing on this motion, he acknowledged that various records had since been made available but that the report was still in such poor form that he could not possibly determine whether the account was correct. The court denied the motion, and this appeal followed.

William argues that Jacqueline owed a duty of complete disclosure and accounting, which was not met by her final accounting as plenary guardian of Hazel’s estate. He points out that when there is an objection to the plenary guardian's final report, said guardian has the burden of proving that the final report properly accounts for the ward’s estate. (In re Estate of Murphy (1987), 162 Ill. App. 3d 222.) Specifically, William maintains that the final account fails to give a beginning point, to explain what has happened to the assets, and to explain a proper ending balance. We disagree.

The Probate Act of 1975 (Ill. Rev. Stat. 1987, ch. llOVa, par. 1-1 et seq.) imposes various duties on the representative of an estate. The representative must file an inventory of all estate property within 60 days after her appointment by issuance of letters. (Ill. Rev. Stat. 1987, ch. llOVa, par. 14 — 1.) The representative of a ward’s estate must also file a verified account within 30 days after the anniversary of her appointment and within 30 days of the termination of her office. (Ill. Rev. Stat. 1987, ch. 1101/2, par. 24 — 11.) The account must state the receipts and disbursements of the representative since her last accounting and all personal estate which is on hand and must be accompanied by such evidence of the disbursements as the court may require. The court may require the representative to produce satisfactory evidence to support the accounting. Ill. Rev. Stat. 1987, ch. 1101/2, par. 24 — 11(a).

The Probate Act of 1975 does not designate a particular form for an accounting, but simply requires a statement of all receipts and disbursements. (In re Estate of Thomson (1986), 139 Ill. App. 3d 930, 936.) However, this flexibility does not give carte blanche for the representative to submit any format whatsoever. Where the descriptions of the transactions in a report are insufficient to support any conclusion respecting their necessity or reasonableness, the representative has failed to discharge her duty adequately. (In re Estate of Roth (1974), 24 Ill. App. 3d 412, 417.) It is the burden of the representative to prove that the items entered on the account are just and proper if objections to the report are filed. Roth, 24 Ill. App. 3d at 416.

As we note above, there is no statutorily defined method to prepare a plenary guardian’s final account. As to his assertion that the account fails to state a beginning point, such information is found on page one, wherein it is stated that an account was opened at GaryWheaton Bank on November 1, 1985, with an opening balance of $9,220.15. Said account subsequently received funds transferred from a closed savings account (valued at $633.29) and a closed money market account (valued at $16,849.96) on November 19, 1985, giving the Gary-Wheaton Bank account a total of $26,703.40 as of that date. This total, sufficiently explained in the final account, gives the account an adequate description of the opening balance.

We do not need to go into a detailed description of what happened to Hazel’s assets. The account adequately details receipts and disbursements which, due to Hazel’s disabled condition, were straightforward, e.g., most disbursements were to the nursing home where Hazel stayed in her final years. Admittedly, the fact that Jacqueline opened four separate accounts and transferred funds between said accounts makes it somewhat difficult to follow the pattern of receipts and disbursements, but a closer review demonstrates that the final account sufficiently explains what happened to Hazel’s assets.

Finally, the ending balance as stated in the final account appears to be correct. We find that the trial court did not err in approving Jacqueline’s final report, in which she met her burden of proving that the final report properly accounts for her ward’s estate.

William raises other objections for the first time on appeal, most notably, that there is a sizeable and significant discrepancy between the assets and income on her original guardianship petition and the disbursements paid to outside entities as disclosed on her final accounting. These objections were not raised at the hearing below and are, therefore, waived. Shell Oil Co. v. Department of Revenue (1983), 95 Ill. 2d 541.

Finally, William argues that the trial court abused its discretion in not vacating the order approving Jacqueline’s final report because of her assurances that the order would be vacated upon request. In support of this argument, William points to a passage from the August 9, 1988, hearing in which the following exchange occurred.

“MR. GRAHAM [Jacqueline’s attorney]: May I ask the Court to enter the Order and grant Counsel leave to come in and vacate it if he finds something about the Final Report rather than coming back to court twice?
THE COURT: All Right?
MR. BRINKMAN: Fine.
THE COURT: All right.”

William argues that Jacqueline was barred by the doctrine of equitable estoppel from objecting to what he terms the agreement to vacate final accounting.

This argument is belied by the record. Jacqueline asserts, and William does not dispute, that following the August 9 hearing, he was given full access to all the documentation upon which she based her final report. William had sufficient opportunity to come forward with objections to any of Jacqueline’s alleged accounting deficiencies at the subsequent hearing. As stated above, William failed to make specific objections which would cast significant doubt as to the final account’s propriety, and the court properly denied his motion to vacate its order approving Jacqueline’s final accounting. Under these circumstances, Jacqueline’s objection to William’s motion to vacate the order of August 9, 1988, was proper and not barred by equitable estoppel.

For the reasons stated above, we affirm the judgment of the circuit court.

Affirmed.

UNVERZAGT, P.J., and DUNN, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ALVIN HANSERD, Defendant-Appellant.
    Second District
    No. 2—88—0034
    Opinion filed October 18, 1989.

      G. Joseph Weller and Paul J. Glaser, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Paul A. Logli, State’s Attorney, of Rockford (William L. Browers and Mary Beth Burns, both of State’s Attorneys Appellate Prosecutor’s Officer, of counsel), for the People.
   JUSTICE WOODWARD

delivered the opinion of the court:

Defendant, Alvin Hanserd, was convicted of criminal sexual assault under section 12 — 13(a)(1) of the Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, par. 12 — 13(a)(1)), after a bench trial before the circuit court in Winnebago County. Defendant was sentenced to an extended prison term of 20 years. The extended term was imposed because the trial judge found the victim to be physically handicapped for the purposes of section 5 — 5—3.2(b)(3)(iii) of the Unified Code of Corrections (Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 5— 3.2(b)(3)(iii) (superseded by Pub. Act 85 — 691, §2, eff. January 1, 1988)). We note here that the defendant elected to be sentenced under the version of the statute in effect at the time of the commission of the offense, namely, September 11, 1986. In what appears to be a case of first impression, the question on appeal is whether the trial court’s imposition of an extended sentence was improper.

At the trial, the victim and defendant testified to different versions of the facts. According to the victim she had been awakened by the defendant’s telephone call late on the night of September 10 or in the early morning on September 11, 1986. The defendant had previously worked with the owner of the house, Robert Rockwood, in an early morning newspaper-distribution business, and he had met the victim through this employment a couple of times when he would pick up his paycheck. The victim was engaged to Mr. Rockwood’s son, Johnathan. She told defendant not to come to the house. After the telephone conversation, she went back to bed, but she did not lock the door to the house. Early in the morning, she heard a noise, got out of bed, saw the defendant’s car, and was startled when defendant walked through the living room door. The victim testified that defendant hugged her and pushed her down on the couch, but she protested and said, “Get off of me.” He took off her pants, although she tried to push him off her. The sexual assault then occurred.

Testifying on his own behalf, defendant denied forcing any sexual acts upon the victim. He stated that she willingly took part in all sexual acts that occurred between them.

Other evidence adduced at trial indicated that the victim was born deaf and attended the Illinois School for the Deaf for seven years. At the time of the commission of the crime in question she was almost 20 years old and was hearing impaired, but she had the ability to speak with her own voice. In 1986 she had surgery on her mouth which had given her trouble in speaking coherently. It was stipulated into the record that the victim had scored a 76 on the Weschler Adult Intelligence Scale, that her intelligence level was “borderline,” being the highest of five levels of subaverage intelligence, and that she was described as educably mentally retarded. Goodwill Industries felt that she had inadequate social skills to sustain employment with it.

During the trial, the victim testified through the use of two interpreters. The first interpreter translated questions posed into sign language. The second interpreter translated the sign language into the idiomatic and conceptual sign language that the victim could understand. The victim would then respond in her sign language, which was then translated by the second interpreter, and then into English by the first interpreter. The State argued that it was virtually impossible to translate exactly word for word from spoken English into sign language, and thus, two interpreters were needed. (See People v. Vandiver (1984), 127 Ill. App. 3d 63, 68.) However, when asked, the victim gave her responses in spoken English. Spoken responses were used when she repeated the words she had told the defendant on the night of the incident and when she affirmed her ability to speak. In addition, the court did not allow leading questions because she had shown no inability to answer questions despite her limited hearing and mentality. The defense waived its objection to the use of the interpreters when the State stipulated that the victim had some speech capabilities and some communication skills.

After the close of the evidence, the court found the defendant guilty. At the sentencing hearing, January 11, 1988, the court asked for the State’s position on section 5 — 5—3.2(b)(3)(iii) regarding a “person handicapped at the time of the offense.” The State moved for the imposition of an extended-term sentence. Further, the State alleged that it was “conceivable” that, had the victim possessed normal hearing, she could have heard the defendant earlier and locked the house door before he could have entered and thus, she was impaired from avoiding or preventing the offense.

The court did not comment on this speculation. In finding an extended sentence appropriate, the court below stated:

“The Court has listened closely to the arguments concerning extended term eligibility and would find that based upon the victim’s suffering a permanent speech and hearing disability and a permanent intelligence disability — she was found to be borderline intelligence, educably retarded — the Court would, then, find the victim has suffered permanent and disabling physical characteristics.
The victim was physically handicapped at the time of the offense within the meaning of the statute. That the defendant is eligible for extended term sentencing for the particular offense involved. I would make these comments towards the extended term; a girl with a hearing disability, speech disability, an intelligence disability, and in the Court’s eyes, being preyed on by the Defendant.” (Emphasis added.)

As stated above, the question on appeal is whether the court below properly imposed an extended-term sentence upon defendant under section 5 — 5—3.2(b)(3)(iii), which reads in pertinent part:

“(b) [T]he following factors may be considered by the court as reasons to impose an extended term sentence under Section 5 — 8—2 upon any offender who was at least 17 years old on the date the crime was committed:
* * *
(3) When a defendant is convicted of any felony committed against:
* * *
(iii) a person physically handicapped at the time of the offense.
For purposes of this paragraph (b)(3), a physically handicapped person is a person who suffers from a permanent and disabling physical characteristic, resulting from disease, injury, functional disorder or congenital condition, which impairs the ability of the person to avoid or prevent the commission of the offense." (Emphasis added.) Ill. Rev. Stat. 1985, ch. 38, par. 1005-5-3.2(b)(3)(iii).

The determination and imposition of a sentence falls within the sound discretion of the trial court, which constitutes the better forum for establishing a suitable sentence; hence, a court of review must give great deference to the trial court’s determination and will not disturb it absent an abuse of discretion. (People v. Perruquet (1977), 68 Ill. 2d 149, 154; People v. Baker (1983), 114 Ill. App. 3d 803, 811.) However, penal statutes are to be strictly construed in favor of the accused, although the court must give effect to the legislative intent and must not read a statutory enactment rigidly to defeat that intent. People v. Jordan (1984), 103 Ill. 2d 192, 205.

In this case, the statute in force at the time of the offense required that, for an extended sentence to be imposed, the physical handicap must impair the victim’s ability to avoid or prevent the commission of the crime. As we noted earlier, the defendant elected to be sentenced under the version of the law in effect on the date he committed the offense. (Ill. Rev. Stat. 1987, ch. 1, par. 1103; People v. Cross (1979), 77 Ill. 2d 396, 409.) Since 1986, the legislature has amended the relevant criminal statutes, but we do not need to address said changes as they have no bearing upon this opinion.

Analyzed separately, none of the victim’s physical handicaps were shown to have impaired her ability to avoid or prevent the offense. Nor was it shown that an ordinary person could have reacted any differently than the victim did. As to the victim’s speech impediment, she testified that she spoke to the defendant on the telephone, telling him not to come to her home and later telling him to “[g]et off [her].” The purpose of this testimony was to prove the element of force and lack of consent, not that she was handicapped. The State failed to raise any argument that the speech impediment was an impairment, as contemplated by the statute, or to prove that the impediment would have made a difference in the victim’s ability to avoid or prevent the crime. As to her hearing loss, the victim testified to hearing a telephone conversation, hearing the defendant talk, and hearing a noise that awoke her while she was in bed. The State did not attempt to prove that the hearing loss was an impairment which limited the victim’s ability to avoid or prevent the crime, and it merely made a speculative argument that a person with normal hearing could have heard the defendant in sufficient time to get up and lock the door. We conclude that neither the victim’s speech impediment nor her hearing impediment justified the imposition of an extended sentence.

It is apparent that the other handicap upon which the trial court based its imposition of an extended sentence was the victim’s mental incapacity. (For the purposes of this opinion, we consider the victim to be developmentally disabled based on the definition of the term in section 1 — 106 of the Mental Health and Developmental Disabilities Code (Ill. Rev. Stat. 1987, ch. SV-lz, par. 1 — 106).) Defendant argues that the statute refers only to physical handicap of a person suffering from a permanent and disabling physical characteristic and, as such, it does not encompass a mental handicap. Also, defendant argues that since the victim fully understood the nature of the conduct and complained of it promptly, she was not impaired by any possible mental handicap.

By its plain language, the statute does not include the mentally handicapped. (See Maloney v. Bower (1986), 113 Ill. 2d 473 (court interpreting a statute must give it its plain and ordinary meaning).) The legislature could have included in section 5 — 5—3.2(b)(3)(iii) of the Unified Code of Corrections, as it did, for example, in the Illinois Human Rights Act (Ill. Rev. Stat. 1987, ch. 68, par. 1 — 103(1)), statutory language which included both the physically and mentally handicapped. We must presume that the legislature was fully cognizant of the statutory differences between mental and physical handicaps and deliberately chose to omit any reference to mental handicaps in the relevant statutory language. (See Western National Bank v. Village of Kildeer (1960), 19 Ill. 2d 342.) Therefore, we find that the trial court’s inclusion of the victim’s mental incapacity in determining whether or not to impose an extended sentence was improper.

Having determined that no physical handicaps impaired the victim’s ability to avoid or prevent the offense, and the trial court improperly took into account the victim’s mental handicap, we find that the trial court abused its discretion in imposing an extended sentence upon defendant.

For the above reasons, the judgment of the circuit court is vacated, and the cause is remanded for a new sentencing hearing, wherein the court below shall impose a nonextended prison term upon defendant.

Reversed and remanded.

UNVERZAGT, P.J., and DUNN, J., concur.


author: PRESIDING JUSTICE UNVERZAGT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff, v. PATRICIA A. KAZIK, Defendant-Appellee (Jim Edgar, Secretary of State, Appellant).
    Second District
    No. 2—89—0237
    Opinion filed October 18, 1989.

      Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Kimary Lee, Assistant Attorney General, of Chicago, of counsel), for appellant.
    No brief filed for appellee.
   PRESIDING JUSTICE UNVERZAGT

delivered the opinion of the court:

Plaintiff, the Secretary of State (Secretary), appeals an order of the circuit court of Lake County, granting a judicial driving permit (JDP) to defendant, Patricia A. Kazik. The Secretary raises one issue on appeal: whether the trial court abused its discretion in granting a JDP to defendant, who was not a statutory first offender within the meaning of section 11 — 500 of the Illinois Vehicle Code (Code) (Ill. Rev. Stat. 1987, ch. 95V2, par. 11 — 500).

Although defendant has not filed an appellee’s brief in response, we consider the Secretary’s appeal under the standards set forth in First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128.

On March 27, 1983, defendant was arrested for driving under the influence of alcohol (DUI) pursuant to section 11 — 501 of the Code (Ill. Rev. Stat. 1987, ch. 95V2, par. 11 — 501). Defendant’s driving privileges were suspended August 17, 1983, pursuant to section 6— 206(a)(17) of the Code (Ill. Rev. Stat. 1987, ch. 95^2, par. 6— 206(a)(17)), which authorizes the suspension of driving privileges for a motorist’s refusal to submit to a chemical test as required by the implied-consent provision of the Code (Ill. Rev. Stat. 1987, ch. 95V2, par. 11 — 501.1). Defendant’s suspension was effective through February 17, 1984.

Defendant was arrested for DUI a second time on October 29, 1988. Shortly thereafter, the Secretary served defendant with a notice of statutory summary suspension of her driving privileges for a period of 12 months commencing December 14, 1988. The Secretary’s notice stated that defendant was not a first offender.

On January 5, 1989, defendant filed a petition for a JDP in which she declared that she was a first offender as defined in section 11— 500 of the Code (Ill. Rev. Stat. 1987, ch. 951/2, par. 11 — 500). The trial court granted defendant’s petition and ordered the issuance of a JDP to defendant for the purpose of driving to and from her place of employment. The Secretary requested the court to reassess its decision to issue the JDP because he believed defendant was ineligible to obtain such a permit as her record indicated she was not a first offender. On February 3, 1989, the court issued a final order directing the Secretary of State to issue a JDP to defendant. The Secretary’s timely appeal ensued.

At the outset, we must address this court’s jurisdiction to consider the Secretary’s appeal. On May 25, 1989, the Secretary filed a motion to stay proceedings in this matter pending disposition by the Illinois Supreme Court of People v. Pine, which addressed the issue of the Secretary’s standing to appeal an order of the trial court directing him to issue a JDP pursuant to section 6 — 206.1 of the Code. This court denied the Secretary’s motion on June 2, 1989, and he filed his brief in accordance with our order. The supreme court has resolved the standing question in the Secretary’s favor in its recently issued decision in People v. Pine (1989), 129 Ill. 2d 88. We thus consider the merits of the appeal.

On appeal, the Secretary contends that the trial court should not have granted a JDP to defendant because she is not a statutory first offender. Section 6 — 206.1(B)(a) authorizes the trial court to grant a first offender’s petition for a JDP. (Ill. Rev. Stat. 1987, ch. 95V2, par. 6 — 206.1(R)(a).) This section relies upon the definition of “first offender” as provided in section 11 — 500 of the Code, which states:

“For the purposes of interpreting Sections 6 — 206.1 and 6— 208.1 of this Code, ‘first offender’ shall mean *** any person who has not had a driver’s license suspension for Section 11— 501.1 after January 1, 1982, or a previous statutory summary suspension as provided in this Code, except in cases where the driver submitted to chemical testing resulting in an alcohol concentration of 0.10 or more and was subsequently found not guilty of violating Section 11 — 501, or a similar provision of a local ordinance.” Ill. Rev. Stat. 1987, ch. 95V2, par. 11 — 500.

In its initial order issuing a JDP to defendant, the trial court found that defendant was a first offender “in that her conviction for a prior DUI was in July 1983 and the arrest on this matter was October 29, 1988 a period greater than five (5) years.” The Secretary contends, and we agree, that the statute does not impose a five-year limitation on driver’s license suspensions for the purpose of determining whether a DUI defendant is a first offender. Thus, the trial court’s finding that defendant was a first offender and its order to issue a JDP to defendant were erroneous.

We believe that the trial court’s error springs, at least in part, from a faulty interpretation of the abstract of defendant’s driving record as prepared by the Secretary of State. The trial court’s confusion in this regard is understandable because the Secretary has failed to provide an adequate explanation of the coding system to be used in deciphering this abstract. We have noted difficulties of the same type in a recent decision, People v. Duff (1989), 181 Ill. App. 3d 324, 326. There, as in the instant matter, painstaking review of the abstract of defendant’s driving record reveals that defendant is not a statutory first offender.

Although the first column of the abstract, entitled “Type Action,” characterizes defendant’s 1983 suspension as a “discretionary suspension,” the fourth column, which refers to the section of the Vehicle Code under which the State proceeded, indicates that this suspension was pursuant to section 6 — 206(a)(17) (Ill. Rev. Stat. 1987, ch. 951/2, par. 6 — 206(a)(17)), which authorizes the Secretary to suspend or revoke a motorist’s driving privileges for refusal to consent to a chemical test pursuant to section 11 — 501.1. It is quite evident that defendant’s driver’s license suspension on August 17, 1983, is “a driver’s license suspension for Section 11 — 501.1 after January 1, 1982,” as stated in section 11 — 500. Defendant is not a statutory first offender and is therefore ineligible to receive a JDP. Thus, the trial court abused its discretion by granting a JDP to defendant.

In closing, we urge the Secretary of State to attempt to explain more carefully the coding system used in the abstracts of motorists’ driving records to avoid future confusion and the concomitant waste of judicial resources in similar cases.

The order of the circuit court of Lake County is reversed.

Reversed.

REINHARD and DUNN, JJ., concur.