author: JUSTICE COLWELL

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. BRIAN W. ROGERS, Defendant-Appellee.
    Second District
    No. 2 — 91—0316
    Opinion filed June 9, 1993.

      Roger T. Russell, State’s Attorney, of Belvidere (William L. Browers and Gregory L. Slovacek, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    David H. Towns and Joseph A. DiCaprio, both of Belvidere, for appellee.
   JUSTICE COLWELL

delivered the opinion of the court:

The State appeals the order of the trial court suppressing the statements of defendant, Brian Rogers. He was indicted for the aggravated criminal sexual assault (Ill. Rev. Stat. 1989, ch. 38, par. 12— 14(b)(1)) of his stepdaughter, A.Z., six years prior to the indictment. The issues on appeal are whether defendant’s statements were involuntary because the interrogation was custodial; whether he was denied the right to counsel during the interrogation; and whether his confession was otherwise involuntary because he was suffering from anxiety and depression. We affirm.

Prior to defendant’s arrest, he went to the Belvidere police department and made a confession. During the criminal proceedings, defendant moved to suppress this confession. He alleged that he was not informed of his rights, that the confession was secured in violation of his constitutional rights, and that his confession was involuntary.

Detective Joe Gough of the Belvidere police department testified that at 7 p.m. on April 19, 1990, defendant came to the public safety building to make a statement. When Gough had called defendant and his wife earlier that evening, Gough knew A.Z. was in protective custody. Gough told defendant’s wife that her son was going to be investigated by the Department of Children and Family Services (DCFS). Gough was not sure if he told her defendant was going to be arrested. The record shows contradictory testimony on the part of Gough as to whom he actually related this information. In his testimony before the grand jury, Gough testified that he “got in contact with Brian Rogers at his residence,” whereas in his police report and testimony at the suppression hearing, eight months later, Gough testified that he spoke with Mr. Rogers’ wife.

When defendant arrived at the station by himself, Gough led him to the detective’s office and read him the Miranda rights. Defendant signed a form that he understood the rights, but he still wanted to talk to the police. He placed his initials next to each statement of a right. Defendant sat in a chair to the right side of the desk. According to Gough, before he could get a note pad, defendant started talking about what happened between him and A.Z. and his other stepdaughter, K.Z. Gough took notes in longhand, and defendant later initialed the pages. Defendant was talking very fast, but Gough wrote what he could. Gough had to tell defendant to pause so that Gough could write everything down. At one point, defendant corrected what Gough wrote. Defendant wrote the final paragraph in his own hand and signed the whole statement.

The interview lasted 11/2 to 2 hours. Defendant did not ask for any food or drink or ask to leave. Gough thought defendant was upset. He had tears in his eyes but was not crying. He had occasional minor mood swings. Gough testified he did not threaten to take defendant’s children or send him to jail if he did not make a statement. After he signed the statement, defendant went home. The room was in a secure area of the police station to which only officers had access. During the interrogation, Deputy Chief Bowley was in and out of the room several times.

Gough denied defendant requested an attorney but did admit that he told defendant that whether an attorney would be appointed was to be decided by the court. Gough told him that an attorney would be provided only after an appearance in court and not at the police station during questioning. Gough denied that he stated that everything would be easier for defendant if he confessed. Gough denied telling him that if he made a statement DCFS was unlikely to take his son away because a confession would make defendant appear sincere.

Gough testified defendant made several changes in direction during the course of the conversation. Some of his sentences were incomplete and disjointed. Defendant was concerned about his son. The written statement makes a specific reference to the fact that defendant had not touched his son.

Defendant testified that Gough informed him that he had a right to an attorney. Defendant asked for one, but Gough told him that he was not sure if defendant would be arrested and that only if he were arrested and appeared in court would an attorney be appointed. According to defendant, Gough also told him that he was better off without an attorney because attorneys think they are good if a client gets only six years’ imprisonment. Defendant testified that he then told Gough that he did not want to make a statement but Gough continued to interrogate him. Defendant asked for the attorney after signing the Miranda form.

Defendant testified he was very confused throughout the interrogation. Gough told him that if he made a confession and stated that he had not abused his son then DCFS would not take the son away. Defendant felt much stress. He did not remember reading the Miranda form as the words on the page seemed extremely small and seemed to move around the page. He did not remember signing the statement. During the questioning, Gough coached him by reciting excerpts from the other reports written against defendant. During the interrogation, defendant felt like he was going to die. After Gough refused the request for an attorney, defendant continued to talk because Gough told him to talk. Defendant knew to ask for an attorney because he saw actors on television dramas ask for counsel, but he did not know what to do when the request was denied because he was not aware of any actor’s request being refused; he did not know he should stop talking. Defendant had been treated for anxiety attacks in the years before his arrest. After the interrogation, defendant’s doctor referred him to a psychiatrist.

Defendant also called Dr. Anthony B. D’Souza to testify. He was a psychiatrist who had been treating defendant for eight months. He was treating defendant for anxiety and depression and had prescribed Desyrel and Xanax. In D’Souza’s opinion, defendant did not relate well to stress, and this condition affected his ability to understand his legal rights. D’Souza believed defendant had exhibited symptoms of stress by his tearing and crying, using disjointed sentences, and changing subjects. An overwhelming concern for his son would trigger an anxiety episode. D’Souza thought that such anxiety would affect his ability to waive his legal rights for fear of losing his son or going to jail. Defendant probably had not been able to affirmatively assert his rights, and a strong authority figure would probably have been able to lead him to give a statement. Defendant’s mental condition affected his ability to voluntarily and intelligently waive his rights.

D’Souza admitted that a person is not mentally ill merely because he has tears, makes disjointed sentences, and rambles. When the doctor first met defendant, he had been arrested, and that could cause stress, too. D’Souza was aware that defendant had much to gain from a ruling that his waiver of rights was involuntary, but the doctor persisted in his opinion. The doctor acknowledged that he was determining someone’s mental state at an occasion when the doctor had not observed him, and the doctor admitted that he might have been fooled by other patients. However, based on his observations and other records, the doctor opined that defendant had not waived his rights voluntarily and intelligently. His opinion was also based on information supplied by defendant. The doctor believed that because any accused has the right to counsel, for a person to waive the right generally is a psychotic act; not all such people need psychiatric treatment, but one must examine why someone would refuse legal counsel. The doctor did not say that all waiving defendants were psychotic, but this defendant had waived his rights under an extreme amount of stress, which was more than a usual defendant bore because this defendant suffered from anxiety and depression.

Besides using defendant’s statements, D’Souza relied on the report from the referring physician and his own direct observations when forming his opinion. Defendant had a history of depression prior to his meeting -with D’Souza. Defendant’s type of depression would occur off and on throughout the patient’s adult life.

The trial court reviewed the transcript of the hearing prior to rendering its decision. The trial court noted some of Detective Gough’s statements and concluded that Gough gave the Miranda warnings because defendant was in custody. The court stated that defendant felt like he was in custody. The court said defendant did ask for an attorney but was told one would not be appointed for him until he appeared in court. The trial court suppressed the statement.

The State argues the trial court erred in suppressing the confession. Defendant argues that the waiver of Miranda rights was not knowingly and voluntarily made, that the confession was not voluntary, and that the detective violated his rights by continuing the interrogation after defendant requested counsel. A confession made in violation of Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, is presumed involuntary. (Oregon v. Elstad (1985), 470 U.S. 298, 317, 84 L. Ed. 2d 222, 237, 105 S. Ct. 1285, 1297.) Defendant contends Gough pressured him into confessing by threatening to take away his son.

The established standard of review of a trial court’s finding on a question of the voluntariness of a confession is whether the finding is contrary to the manifest weight of the evidence. (People v. Kincaid (1981), 87 Ill. 2d 107, 120; People v. Prim (1972), 53 Ill. 2d 62, 70.) As the trier of fact the trial court is to determine the credibility of the witnesses and to resolve conflicts brought out in the testimony. People v. Berland (1978), 74 Ill. 2d 286, 305-06; People v. Davis (1983), 97 Ill. 2d 1, 21.

The State contends that the defendant was not in custody at the time the statements suppressed were given and therefore the underlying rationale for Miranda warnings was absent and any alleged deficiencies in those warnings are therefore without any consequence. The defendant counters that the facts of this case meet the tests set forth in People v. Wipfler (1977), 68 Ill. 2d 158, 168-70, and People v. Clark (1980), 84 Ill. App. 3d 637. We agree with the defendant’s analysis.

We cannot say that the trial judge’s findings were manifestly erroneous. The trial judge saw, heard and assessed the credibility of the witnesses in this case.

There are numerous conflicts in the testimony of the witnesses which are highlighted above. Here, as in People v. Brown, (1990), 136 Ill. 2d 116, 126, defendant was never told he was free to leave even though after giving his statement he was allowed to leave. The Brown court has listed the following factors that a court should consider in determining whether a police interrogation is custodial. Those factors are: the location, length, mood and mode of the interrogation; the number of police officers present; any indicia of formal arrest or evidence of restraint; the intentions of the officers; and the extent of the knowledge of the officers and the focus of their investigation. Here, defendant and/or defendant’s wife was contacted by the police prior to defendant’s appearance at the police station. A possible sentence of defendant was discussed. At the station he was in a room to which only police officers had access. He was confronted with the statements of his stepdaughters. He knew he was the accused because of police conversations with him and/or his wife. He was told DCFS would investigate his son and whether his son would stay with him. He was the focus of the investigation. He was asked to and did sign a Miranda form which, when considered with the other factors, added to the custodial mood and mode of the interrogation. The defendant was in the police station, and this factor will give strong weight to the suspect’s belief that he is in custody. (People v. Gorman (1991), 207 Ill. App. 3d 461, 469-71; see People v. Wipfler (1977), 68 Ill. 2d 158, 168-70 (although the defendant came to the station voluntarily, the circumstances became custodial).) The trial court’s ruling that defendant was in custody at the time he gave the statement to the police was not manifestly erroneous.

Next we address defendant’s request for counsel. The record supports defendant’s statement that he made a request for counsel.

The fifth amendment to the United States Constitution guarantees that “[n]o person *** shall be compelled in any criminal case to be a witness against himself.” (U.S. Const., amend. V.) In Miranda, the United States Supreme Court extended the fifth amendment privilege against self-incrimination to custodial interrogation.

Among other things, a suspect in a custodial interrogation setting must be warned that he has the right to counsel, either retained or appointed, during questioning. (Miranda, 384 U.S. at 479, 16 L. Ed. 2d at 726, 86 S. Ct. at 1630.) The Miranda Court explained that “the right to have counsel present at the interrogation is indispensable to the protection of the Fifth Amendment privilege.” (Miranda, 384 U.S. at 469, 16 L. Ed. 2d at 721, 86 S. Ct. at 1625.) The primary purpose of counsel is to act as a “protective device[] *** to dispel the compulsion inherent in custodial surroundings.” Miranda, 384 U.S. at 458, 16 L. Ed. 2d at 714, 86 S. Ct. at 1619.

The fifth amendment right to counsel attaches only after the defendant’s invocation. (Miranda, 384 U.S. at 473-74, 16 L. Ed. 2d at 723, 86 S. Ct. at 1627-28.) If a suspect invokes his right to counsel in response to Miranda warnings, all interrogation must cease until an attorney is present. (Miranda, 384 U.S. at 474, 16 L. Ed. 2d at 723, 86 S. Ct. at 1628; see also Minnick v. Mississippi (1990), 498 U.S. 146, 112 L. Ed. 2d 489, 111 S. Ct. 486.) The Court in Miranda thus “fashioned *** the rigid rule that an accused’s request for an attorney is per se an invocation of his Fifth Amendment rights.” Fare v. Michael C. (1979), 442 U.S. 707, 719, 61 L. Ed. 2d 197, 209, 99 S. Ct. 2560, 2569.

Under Miranda, any statement taken from a suspect without the presence of an attorney is inadmissible in the prosecution’s case in chief unless the prosecution demonstrates that the defendant was given Miranda warnings and made a knowing and intelligent waiver of his privilege against self-incrimination. (Miranda, 384 U.S. at 475-77, 16 L. Ed. 2d at 724-25, 86 S. Ct. at 1628-29.) In Edwards v. Arizona (1981), 451 U.S. 477, 68 L. Ed. 2d 378, 101 S. Ct. 1880, the Court went a step further, holding that once an accused has expressed his desire to deal with the police only through counsel, the State must establish both that it was the accused who initiated further discussions with the police and that he knowingly and intelligently waived the right he had invoked. Edwards, 451 U.S. at 484-85, 68 L. Ed. 2d at 386, 101 S. Ct. at 1884-85.

This Miranda “exclusionary rule” is intended to safeguard a suspect’s rights under the fifth amendment and applies even if the defendant’s constitutional rights under the fifth amendment were not violated. (See Oregon v. Elstad (1985), 470 U.S. 298, 84 L. Ed. 2d 222, 105 S. Ct. 1285.) The Supreme Court has explained that the fifth amendment bars only the use of statements which are compelled and that the Miranda exclusionary rule extends further than the fifth amendment’s protection against involuntary statements. (People v. Winsett (1992), 153 Ill. 2d 335, 352.) Miranda bars the prosecution from using a statement taken in violation of Miranda rules in its case in chief, even if that statement was not compelled within the meaning of the fifth amendment. See Oregon v. Elstad (1985), 470 U.S. 298, 84 L. Ed. 2d 222, 105 S. Ct. 1285.

Here the police deflected the defendant’s request for counsel with statements concerning court-appointed counsel being available to him at the time he went to court in the event he was charged. Interrogation did not cease upon defendant’s request for counsel, and, since we have determined this interrogation was custodial, we find that the trial judge’s ruling suppressing the statements as taken in violation of Miranda was not manifestly erroneous.

Next, we determine whether defendant knowingly and voluntarily waived his Miranda rights and whether the confession was otherwise voluntary. The two issues are not identical. (See People v. Bernasco (1990), 138 Ill. 2d 349, 365.) A waiver of Miranda rights involves the Federal issues of whether the decision was voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception and, second, whether the waiver was made with a full awareness both of the nature of the right being abandoned and consequences of the decision to abandon it. (People v. Scott (1992), 148 Ill. 2d 479, 509; Bernasco, 138 Ill. 2d at 356-63.) The issue of intelligent knowledge is separate from the issue of voluntariness against which coercion is a factor. Bernasco, 138 Ill. 2d at 356-57.

The State contends that the court can suppress the confession only where the State has engaged in coercive conduct to extract the confession. (Colorado v. Connelly (1986), 497 U.S. 157, 167, 93 L. Ed. 2d 473, 484, 107 S. Ct. 515, 522.) The State contends that the record shows no coercive behavior and therefore the trial court erred in suppressing the confession. However, our supreme court in Bernasco explained that the issue of whether the confession is coerced for Federal constitutional purposes differs from the issue of whether the statement was voluntary. Bernasco, 138 Ill. 2d at 365.

Connelly addresses situations (1) where an initial confession was given under circumstances requiring no Miranda warning (hence involving no issue of waiver), the voluntariness of the confessions being at issue; and (2) subsequent confessions given after Miranda warnings, the voluntariness of the Miranda waivers being at issue. In determining whether a confession is voluntary where there has been no official coercion, inquiries into the state of a defendant’s mind, when divorced from any coercion by the State, are to be resolved by State evidence law rather than the due process clause of the fourteenth amendment. (Bernasco, 138 Ill. 2d at 356, citing Connelly, 479 U.S. at 166-67, 93 L. Ed. 2d at 484, 107 S. Ct. at 522.) Independently of Miranda and its Federal voluntariness principles, Illinois courts require that a confession must be voluntary to be admissible into evidence. Bernasco, 138 Ill. 2d at 365.

A determination of the voluntariness of the confession for State evidentiary purposes requires the consideration of the totality of the circumstances. (People v. Melock (1992), 149 Ill. 2d 423, 447.) The court should consider the factors of the age, education, and intelligence of the accused, the duration of the questioning, and whether he received his constitutional rights or was subjected to physical punishment. (149 Ill. 2d at 447.) No single factor is controlling. (149 Ill. 2d at 447-48.) The court should also consider whether the confession was obtained through deception, trickery, promises, or misinformation. (149 Ill. 2d at 450-51.) Psychological testimony is relevant to determine the defendant’s mental state. (See Scott, 148 Ill. 2d at 511; Bernasco, 138 Ill. 2d at 362.) Even where Miranda warnings are not required or where the interrogation is not custodial, the behavior of law enforcement officers may overbear the suspect’s will to resist, and proof of whether warnings were given is relevant to determine whether the questioning was in fact coercive. (Melock, 149 Ill. 2d at 452.) The trial court’s determinations on these issues will not be reversed unless they are manifestly erroneous. Melock, 149 Ill. 2d at 448; Scott, 148 Ill. 2d at 512.

The record does not show that the trial court’s determination that the confession was involuntary was manifestly erroneous. The State argues that the trial court placed undue emphasis on the psychiatrist’s opinion, which the State criticizes. The State argues that D’Souza’s opinion of defendant’s mental state was made after the fact and was incredible because of his premise that anyone who waives the Miranda rights is psychotic.

Because a psychiatrist forms an opinion after the fact does not make it unreliable. Every psychiatrist must usually make a determination at a later date and extrapolate the defendant’s mental condition at the earlier, relevant date. (See People v. Curry (1992), 225 Ill. App. 3d 450, 454.) The length of time between the interview and the relevant date applies only to the weight of the testimony. (See Curry, 225 Ill. App. 3d at 454.) The trial court had the better opportunity to view the witnesses and had the duty of determining their credibility and the weight to give their testimony. Here, the prosecutor pointed out the psychiatrist’s after-the-fact opinion, but the trial court chose to believe the psychiatrist. The opinion had more indicia of reliability because defendant’s condition was documented prior to the interrogation and because the psychiatrist relied on external reports such as that of the examining physician.

The prosecutor noted all the other weaknesses of the psychiatrist’s testimony, which are inherent in all psychiatric opinions. These facts include that the doctor must rely on information supplied in part by the patient; that the patient had much to gain from a favorable opinion; and that the opinion was not foolproof. These weaknesses do not make the opinion inadmissible. The trial court assigns weight to the opinion after considering the strengths of these factors. The reviewing court must consider that the circuit court heard and saw the witnesses and was in the best position to judge the witnesses’ credibility. (People v. Reid (1990), 136 Ill. 2d 27, 61.) A reviewing court cannot substitute its judgment for that of the trial court merely because it would have weighed the factors differently. Reid, 136 Ill. 2d at 61; see In re Glenville (1990), 139 Ill. 2d 242, 251; People v. Long (1991), 217 Ill. App. 3d 940, 946-47.

More troubling here, however, is the fact that the opinion may have been based on the faulty premise that anyone who .waives his Miranda rights is psychotic. However, we cannot read the statement in isolation. During the cross-examination and' the redirect examination, the doctor explained what he meant by the statement. He explained that he was not making a generalization; rather, when someone refuses counsel he had to ask why. D’Souza limited his statement to this particular cause, which involved stress which differed from the ordinary stress involved in an interrogation because this defendant suffered from anxiety and depression. The trial court heard this testimony, and we cannot state that this one possible flaw in the opinion rendered the entire testimony incredible.

Finally, the State objects that the trial court “picked out” some of Gough’s testimony when it rendered its judgment. We find no error in the trial court selecting bits of testimony which exemplify its reasoning. The transcript supports the presumption that the trial court reviewed all the evidence when it rendered its decision.

For the above reasons, the order of the circuit court is affirmed.

Affirmed.

McLAREN and BOWMAN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE KNECHT

license: Public Domain

text:
      In re ESTATE OF ALBERT BRUCE ANDERSON, Deceased (Central Illinois Trucks, Inc., et al., Claimants-Appellants, v. Betty Lee Anderson, Ex’r, Defendant-Appellee).
    Fourth District
    No. 4 — 91—0747
    Argued June 24, 1992.
    Opinion filed June 10, 1993.

      Marvin H. Gesell (argued), of Bloomington, for appellants.
    Maurice J. Barry (argued), of Ostling, Ensign, Barry & Glenn, of Bloomington, for appellee.
   JUSTICE KNECHT

delivered the opinion of the court:

Claimants Central Illinois Trucks, Inc. (Central), and Paccar Financial Corporation (Paccar), appeal from denial of their claims filed in the estate of Albert Bruce Anderson (decedent) as untimely pursuant to a motion for directed findings filed by the estate at the close of claimants’ case. The trial court found (1) claimants Central and Paccar were not reasonably ascertainable creditors of the estate and (2) their claims were conjectural; and further found (3) Richard Hagstrom, Central’s general manager, attended decedent’s wake and had actual notice of the date of death. We vacate and remand.

I. Background

On January 27, 1986, decedent executed security agreement/retail installment contracts for the purchase of four trucks from Central for use in his trucking business, Albert B. Anderson, d/b/a Anderson Trucking. The contracts were assigned on partial recourse to Paccar. Less than four months later, decedent executed assignments of his interest in the four trucks to Harry Schubbe, who agreed to make payments on the unpaid balance on each of the trucks. The one-page transfer agreements expressly provided that decedent remained liable under the original contracts; the assignments were consented to, subject to the security agreements, by Richard Hagstrom, treasurer, on behalf of Central, and J.F. Giordano, finance representative, on behalf of Paccar.

Decedent died on April 28, 1988, leaving a wife, Betty, and four surviving children (Michael, Daniel and Misty Anderson (a minor), and Marcia Wickenhauser). Richard Hagstrom knew of the death of decedent on the day he died and attended the wake or funeral.

Decedent’s will was filed with the circuit court on May 10, 1988, and a petition for probate of the will and issuance of letters testamentary was filed on May 20, 1988. The approximate value of the estate was listed as $54,100 in personal property, and $30,000 in real estate "with annual income from the real estate listed as unknown.

By the will, decedent left his entire estate to his wife and appointed her executor. On May 27, 1988, the will was admitted to probate, Betty was named independent executor (see Ill. Rev. Stat. 1987, ch. 1101/2, pars. 28 — 1 through 28 — 12), and letters of office were issued to her. Publication notice of the death and issuance of letters was in accord with section 18 — 3(a) of the Probate Act of 1975 (Act) (Ill. Rev. Stat. 1987, ch. 1101/2, par. 18 — 3(a)), with the third publication date being June 24, 1988. Neither Central nor Paccar filed claims -within the six-month limitations period provided by section 18 — 3(a) of the Act.

Schubbe, meanwhile, had filed for bankruptcy and listed the four semi-tractors as assets. Upon a lifting of the stay order in the bankruptcy case, Paccar obtained possession of the four trucks in April 1989. On May 4, 1989, Central and Paccar filed claims in the estate for the balance due under the four contracts. The trucks were sold at a public sale in May 1989. Central and Paccar pursued their claims against decedent’s estate for the deficiency between the proceeds of sale, and the balance due under the four contracts. The estate disputed the claims as untimely.

By way of background, though not pertinent to our resolution of the issues, a review of the entire record also suggests the following. After the assignment of the four trucks in question to Schubbe, decedent purchased five additional trucks and four vans from Central, the purchases financed through Associates Commercial Corporation. After decedent’s death, the family continued operating the trucking business as an ongoing concern under the same licenses and ICC certificate and serving the existing contract customers. Son Daniel and daughter Marcia ran the business for their mother, both drawing salaries; son Michael worked for Central. After decedent’s death, Daniel purchased another truck through Central in November 1988 for use in the Anderson Trucking business, financed through Associates, signing his own name. According to affidavits, Anderson Trucking continued to pay on certain of the notes on which Central had limited liability. By the time depositions were taken on November 14, 1989, son Dan had incorporated as D. Anderson Trucking, Inc., but no licenses had been transferred; instead, the family continued to run the decedent’s business as an ongoing concern. By October 24, 1990, the ICC permit and certificate issued to Albert Anderson and Albert B. Anderson, d/ b/a Anderson Trucking, had apparently been transferred to D. Anderson Trucking, although there was no written contract between the executrix of the estate and Dan Anderson or D. Anderson Trucking as to the transfer, and there was no consideration therefor.

II. Probate Notice Requirements

At the time of decedent’s death, section 18 — 3(a) of the Act provided as follows:

“Publication, (a) It is the duty of the representative to publish once each week for 3 successive weeks, commencing within 14 days after the issuance of letters of office, a notice informing all persons of [(1)] the death of the decedent, [(2)] the date of issuance of the letters, [(3)] the name and address of the representative and of his attorney of record arid [(4)] that claims may be filed within 6 months from the date of issuance of the letters and that any claim not filed within that period is barred.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 1101/2, par. 18 — 3(a).)

On April 19, 1988, the United States Supreme Court decided Tulsa Professional Collection Services, Inc. v. Pope (1988), 485 U.S. 478, 99 L. Ed. 2d 565, 108 S. Ct. 1340, holding that notice by publication to creditors of the estate who are known or reasonably ascertainable is inconsistent with the requirements of due process and such creditors must be given “ ‘[n]otice by mail or other means as certain to ensure actual notice.’ ” (Pope, 485 U.S. at 491, 99 L. Ed. 2d at 579, 108 S. Ct. at 1348, quoting Mennonite Board of Missions v. Adams (1983), 462 U.S. 791, 800, 77 L. Ed. 2d 180, 188, 103 S. Ct. 2706, 2712.) In that case, the Court remanded to determine whether “reasonably diligent efforts” had been made to ascertain the identity of the claimant. Pope, 485 U.S. at 491, 99 L. Ed. 2d at 579, 108 S. Ct. at 1348.

After Pope, the Illinois legislature amended various provisions of the Act (see Pub. Act 86 — 815, eff. Sept. 7, 1989 (1989 Ill. Laws 4269, 4269 through 4273)), including sections 18 — 3, 18 — 12, and 28 — 11 (see Ill. Rev. Stat. 1987, ch. 1101/2, pars. 18 — 3, 18 — 12, 28 — 11). Section 18 — 3 of the Act was amended to read:

“Notice — Publication, (a) It is the duty of the representative to publish once each week for 3 successive weeks, and to mail or deliver to each creditor of the decedent whose name and post office address are known to or are reasonably ascertainable by the representative and whose claim has not been allowed or disallowed as provided in Section 18 — 11, a notice stating [(!)] the death of the decedent, [(2)] the name and address of the representative and of his attorney of record, [(3)] that claims may be filed on or before the date stated in the notice, which date shall be not less than 6 months from the date of the first publication or 3 months from the date of mailing or delivery, whichever is later, and [(4)] that any claim not filed on or before that date is barred.
(b) The published notice under subsection (a) of this Section must be published in a newspaper published in the county where the estate is being administered and may be combined with any notice under Section 6 — 10 or subsection (b) of Section 9 — 5. The representative must file proof of publication with the clerk of the court.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 1101/2, par. 18 — 3.)

Section 18 — 12 of the Act was amended to read:

“Limitations on payment of claims, (a) Every claim against the estate of a decedent, except expenses of administration and surviving spouse’s or child’s award, is barred as to all of the decedent’s estate if
(1) Notice is given to the claimant as provided in Section 18 — 3 and the claimant does not file a claim with the representative or the court on or before the date stated in the notice; or
(2) Notice of disallowance is given to the claimant as provided in Section 18 — 11 and the claimant does not file a claim with the court on or before the date stated in the notice; or
(3) The claimant or the claimant’s address is not known to or reasonably ascertainable by the representative and the claimant does not file a claim with the representative or the court on or before the date stated in the published notice as provided in Section 18 — 3.
(b) Unless sooner barred under subsection (a) of this Section, all claims which could have been barred under this Section are, in any event, barred 2 years after decedent’s death, whether or not letters of office are issued upon the estate of the decedent.
* * *
(d) Except with respect to a claimant whose claim is known to the representative and is not paid or otherwise barred under this Section, a representative who acts in good faith to determine and give notice to creditors of a decedent, as provided in Section 18 — 3, is not personally liable to a creditor of a decedent, but any claim not barred under this Section may be asserted against (1) the estate, to the extent that assets have not been distributed, and (2) a distributee of the estate (other than a creditor), but only to the extent that the distributee’s share of the estate will not, in effect, be diminished below what the distributee would have received had the claim been paid by the representative.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 1101/2, pars. 18 — 12(a), (b), (d).)

Section 28 — 11 of the Act was amended to read in pertinent part as follows:

“Closing the estate, (a) An independent representative is accountable to all interested persons for his administration and distribution of the estate but need not present an account to the court unless an interested person requests court accounting as in supervised administration.
(b) An independent representative seeking discharge shall mail or deliver to all interested persons an accounting and shall file in the court a verified report stating substantially as follows:
(1) In a testate estate, that notice has been given to the extent required by Section 6 — 10.
(2) In an intestate estate, that notice has been given to the extent required by Section 9 — 5.
(3) That the notice required by Section 18 — 3 has been published, that reasonable care was used to determine the creditors of the decedent and that all known creditors have been given notice as required under Section 18 — 3." (Emphasis added.)
Ill. Rev. Stat. 1989, ch. 1101/2, pars. 28 — 11(a), (b)(1) through (b)(3).

In this case, the circuit court was presented with circumstances requiring application of the then-existing statutory scheme in light of the Supreme Court’s analysis in Pope. There, the Court stated:

“Where the legal proceedings themselves trigger the time bar, even if those proceedings do not necessarily resolve the claim on its merits, the time bar lacks the self-executing feature that [Texaco, Inc. v. Short (1982), 454 U.S. 516, 70 L. Ed. 2d 738, 102 S. Ct. 781,] indicated was necessary to remove any due process problem. Rather, in such circumstances, due process is directly implicated and actual notice generally is required.” (Pope, 485 U.S. at 487, 99 L. Ed. 2d at 577, 108 S. Ct. at 1346.)

The Pope Court reasoned:

“In assessing the propriety of actual notice in this context consideration should be given to the practicalities of the situation and the effect that requiring actual notice may have on important state interests. *** Creditors, who have a strong interest in maintaining the integrity of their relationship with their debtors, are particularly unlikely to benefit from publication notice. As a class, creditors may not be aware of a debtor’s death or of the institution of probate proceedings. Moreover, the executor or executrix will often be, as is the case here, a party with a beneficial interest in the estate. This could diminish an executor’s or executrix’s inclination to call attention to the potential expiration of a creditor’s claim. There is thus a substantial practical need for actual notice in this setting.
At the same time, the State undeniably has a legitimate interest in the expeditious resolution of probate proceedings. *** Providing actual notice to known or reasonably ascertainable creditors, however, is not inconsistent with the goals reflected in nonclaim statutes. Actual notice need not be inefficient or burdensome. We have repeatedly recognized that mail service is an inexpensive and efficient mechanism that is reasonably calculated to provide actual notice. [Citations.] In addition, Mullane [v. Central Hanover Bank & Trust Co. (1950), 339 U.S. 306, 94 L. Ed. 865, 70 S. Ct. 652,] disavowed any intent to require ‘impracticable and extended searches *** in the name of due process.’ 339 U.S.[] at 317-318[, 94 L. Ed. at 875, 70 S. Ct. at 659]. As the Court indicated in Mennonite [Board of Missions v. Adams (1983), 462 U.S. 791, 77 L. Ed. 2d 180, 103 S. Ct. 2706], all that the executor or executrix need do is make ‘reasonably diligent efforts,’ 462 [U.S. at 798 n.4, 77 L. Ed. 2d at 187 n.4, 103 S. Ct. at 2711 n.4], to uncover the identities of creditors. For creditors who are not ‘reasonably ascertainable,’ publication notice can suffice. Nor is everyone who may conceivably have a claim properly considered a creditor entitled to actual notice. Here, as in Mullane, it is reasonable to dispense with actual notice to those with mere ‘conjectural’ claims. 339 U.S.[ ] at 317[, 94 L. Ed. at 875, 70 S. Ct. at 659],
On balance then, a requirement of actual notice to known or reasonably ascertainable creditors is not so cumbersome as to unduly hinder the dispatch with which probate proceedings are conducted. Notice by mail is already routinely provided at several points in the probate process. ***
In analogous situations we have rejected similar arguments that a pressing need to proceed expeditiously justifies less than actual notice. For example, while we have recognized that in the bankruptcy context there is a need for prompt administration of claims, [citation], we also have required actual notice in bankruptcy proceedings. [Citations.] Probate proceedings are not so different in kind that a different result is required here.” (Pope, 485 U.S. at 489-91, 99 L. Ed. 2d at 578-79, 108 S. Ct. at 1347-48.)

In Pope, the decedent had been in a hospital from November 1978 until his death on April 2, 1979. His will was admitted to probate and his widow named executrix; publication notice was all that was required or given and neither the hospital nor. its parent company filed a claim for expenses of the last illness within the statutory two-month period of first publication. The Supreme Court remanded for proceedings to determine whether “reasonably diligent efforts” would have identified the hospital and uncovered its claim.

III. Evidence Presented To Establish Claims

At final hearing on the claims in August 1991, claimants Central and Paccar presented testimony and exhibits through several witnesses.

A. Paccar’s Collector

Patricia Barlow, collector for Paccar, produced Paccar’s records on the account of Albert B. Anderson, d/b/a Anderson Trucking, regarding four truck tractors he purchased. She identified, as claimants’ exhibit Nos. 1 through 4, four security agreement/retail installment contracts, and explained Anderson went to Central to buy the trucks and Paccar provided the financing. Paccar purchased the contracts from Central with recourse back against Central for 10% of the payoff; i.e., in the event of default, the dealership is “on the hook” for 10% of the balance as of the time of public sale. Attached to each contract was a transfer of interest document transferring title for the equipment from Anderson to Harry Schubbe, with Schubbe having responsibility for the payments but Anderson not relieved of the obligation. She testified all four contracts were in default.

Barlow produced account summary reports for the date of public sale and testified that contract balances on the four trucks were $53,454.69; $51,394.22; $51,156.90 and $55,7847.78. Barlow testified Paccar had been unable to repossess the four trucks for a time because of an automatic stay order imposed when Schubbe filed bankruptcy. When the bankruptcy stay lifted, Paccar repossessed the trucks when they were returned to Central at the end of April 1989.

Barlow testified after she obtained possession of the trucks she had an appraisal of their condition from Central (by Michael Anderson) and she set up a public sale for May 26, 1989, advertising in the newspaper and giving notice to all the Andersons on paperwork that went out on May 4, 1989. She testified Paccar’s policy is to sell the truck for the appraised value or the payoff, the lower of the two. The sale of the four trucks resulted in the following deficiencies:

Barlow testified demand for the balance due on each of the trucks was made via the notice of public sale. The public sale resulted in deficiencies, and Barlow notified Central of its dealer’s liability, $21,208.40, by letter of July 1, 1989, which Central then paid Paccar. Barlow testified the balance due on the contracts was $74,919.51 plus interest and 15% for attorney fees, less the $21,208.40 paid by Paccar — a total of $53,711.11 plus interest and 15% ($8,056.67) for attorney fees.

Barlow testified, based on her familiarity with Paccar’s books and records on the Anderson accounts, Paccar had never received any notice to file a claim in the estate within a certain time period. Paccar had paid Central the principal figure when it purchased each of the four contracts.

In cross-examination, Barlow testified payments had been made on the trucks up to November 1988. Paccar bought the trucks at sale for the appraised value, with no one else bidding. Neither Paccar nor any agent knew of decedent’s death until Central’s personnel contacted it a few days before its claim was filed. After Paccar’s notice of public sale was sent out, Barlow received a call from Central saying she would have to change the date of public sale because she had to send notices to the estate of Albert Bruce Anderson, Dan Anderson, and Betty Anderson. Asked whether anyone at Paccar had an obligation to check legal notices, Barlow answered “no.”

She acknowledged sending a letter, estate’s exhibit No. 1, dated April 11, 1989, to Anderson Trucking. This letter advised of the trucks’ serial numbers, purchase date, transfer to Schubbe, his default, and the financial liability of Albert Anderson, d/b/a Anderson Trucking, under the transfer agreements. The letter requested past due payments of $35,979.72.

B. Central’s General Manager

Richard Hagstrom, at the time of hearing Central’s general manager and secretary-treasurer, testified he had been acquainted with the deceased since 1976 when he started with Central. He had signed the security agreements/retail installment contracts on January 27, 1986, and the transfer agreements later. He personally saw decedent sign all the same documents. He testified decedent had personal liability on the original contracts pursuant to the terms of the transfer agreements executed May 12,1986.

Hagstrom testified, based on his familiarity with the books and records of Central in regard to Albert Bruce Anderson’s accounts, particularly these four trucks, no one on behalf of the executor of the estate had notified Central to file a claim in the estate. He testified the four contracts were on limited liability recourse to Paccar and Paccar had written (claimants’ exhibit No. 6) explaining Central’s liability on the four contracts.

Hagstrom testified he was present about a year earlier at the deposition of Betty Anderson and she had then understood there was a balance owing on an account with Paccar at the time of decedent’s death.

In cross-examination, Hagstrom acknowledged he knew of decedent’s death the day he died and attended the funeral or wake. He did not see a legal claim notice published concerning this estate; no one at Central had a duty to read legal notices. He was aware of Schubbe’s financial problems. He first spoke to Dan Anderson in the February to April 1989 time frame when the trucks were repossessed.

C. Central’s Comptroller

Erick Miner, Central’s comptroller, testified he prepares Central’s financial statements and keeps track of its books and records. He was familiar with Central’s books and records on the account with Albert Bruce Anderson claims and the four trucks financed by Paccar. He testified Paccar made a demand on Central on June 30, 1989, under the recourse agreement and Central paid Paccar $21,208.40 plus simple interest from the date of demand ($5,987.02) and 15% as attorney fees ($4,079.31) for a total of $31,274.73 owed Central.

D. Betty Anderson, Executrix

Betty Anderson, called as an adverse witness, testified decedent did business as an individual proprietorship of Albert Bruce Anderson, d/b/a Anderson Trucking. After decedent’s death, she and her son Dan continued the trucking business. The following colloquy ensued:

“Q. [By claimants’ counsel:] After you became the Executor of your husband’s Estate, did you personally make any inquiry as in regard to Paccar Financial obligations that your husband had been obligated on in regard to these trucks and Harry and Beverly Schubbe?
A. [By Betty Anderson:] No.
* * *
[Claimants’ counsel]: ***
And did you, as Executor, or anyone as your agent on your behalf, give Paccar Financial Corporation, or Central Illinois Trucks, Incorporated^] any notice of any claim dates in your husband’s Estate?
A. No.
Q. Were you personally aware, during your husband’s lifetime, that he had purchased these four trucks in question from Central Illinois Trucks and they had been financed with Paccar Financial Corporation?
A. Yes, I did know that.
Q. And were you also, during your husband’s lifetime, personally aware that *** he transferred those trucks to a Harry Schubbe under a Transfer Agreement?
A. No, I did not. I thought that he was completely off of the paper. He just signed the trucks over to him, but he was to have taken them completely over.
Q. But *** after you became the Executor what, if any, type of investigation did you do as Executor in regard to the Harry Schubbe Contract and Paccar?
A. I didn’t know there was any obligation to them.
Q. As Executor *** of the Estate of Albert Bruce Anderson, after your appointment as his Executor did you send any notice to Paccar Financial Corporation to file a claim in his Estate?
A. No.
Q. And after your appointment as Executor in this case did you send any notice to Central Illinois Trucks to file a claim in this Estate?
A. No.
Q. And after your appointment as Executor in this case did you notify Paccar Financial Corporation that they must file a claim in the Estate by a certain date?
* * *
A. No.
Q. And did you notify Central Illinois Trucks, Incorporated^] that they had to file a claim in your husband’s Estate by a certain date?
A. No.”

E. Estate’s Motion for Directed Finding

Having presented the above evidence, claimants rested their case and the estate moved for a directed finding as to the claims of Central and Paccar, arguing (1) they were not reasonably ascertainable as creditors under Pope and Pope did not apply, and (2) these claims were contingent until the sale and deficiency in May 1989, while the claims period expired in December 1988, so claimants must pursue another avenue of redress under In re Estate of Rice (1981), 96 Ill. App. 3d 1137, 421 N.E.2d 1034, Puhrman v. Ver Vynck (1981), 99 Ill. App. 3d 1130, 426 N.E.2d 921, and Union Trust Co. v. Shoemaker (1913), 258 Ill. 564, 101 N.E. 1050.

F. The Court’s Ruling

The court denied the claims of Central and Paccar “for failure to be filed within the statutory time period of six months, public notice.” The court reasoned as follows:

“In this case the Court finds that there is really no question. I don’t think that Mrs. Anderson did not [sic] actually know that there was a debt owed to Paccar Financial, or Central lilinois Trucks. There is no sufficient proof to indicate that she is so closely connected with the business that she would understand that Anderson Trucking owed those people for these trucks. The question is then how reasonably ascertainable was this debt?
Well, going through the business papers one might find the Contracts, the original Security Agreement, and if one had some sophistication in those matters, can read those and see that although Mr. Schubbe bought the trucks, Anderson Trucking still remained liable on the underlying obligation, if anything, because Mr. Schubbe had defaulted. But in the Court’s mind that would have taken a pretty sophisticated inquiry.
*** [I]n addition to that you would have to know not only that that obligation existed, but you would also have to know what Mr. Schubbe’s situation was and whether he was still paying or not.
*** [T]he timing of [the] thing here is somewhat unfortunate for the claimants in this case that things were still going on. And the Pope case gives little guidance as to what is a reasonably ascertainable factor. In Pope they sent the case back for the Trial Court to determine whether the claimants were reasonably ascertainable and didn’t say a word what standards would be used to determine that factor. And because of that I am in the dark as to what standard I am suppose[d] to be using to determine whether this information was reasonably ascertainable or not.
While I have concluded [(!)] that the claimants have failed to prove that the claim was reasonably ascertainable among [s-ic] Mrs. Anderson, [(2)] the contingent nature of it, depending on what Mr. Schubbe’s status was, the factual matter of the bankruptcy and so on, you would have had to have known that, [(3)] plus understand the legal nature of the Contracts. And I think with that that makes it not reasonably ascertainable.
* * *
*** [T]he Court finds on the basis of what it has just indicated, I might also indicate one other ground which is not essential to the Court’s grounds, which the evidence today shows could be relevant in case this is appealed, and that is [(4)] the testimony of Mr. Hagstrom that he was aware of Mr. Anderson’s death and that he attended the wake. As far as the Court is concerned, by virtue of his status in Central Illinois Trucks, he had actual notice of the death of Bruce Anderson. ***
*** [T]he Court finds that the claims of Paccar Financial and Central Illinois Trucks are barred by [not having been submitted] within the statutory time period. That under Pope this was not an easily [sic], was not a known, or easily [sic] known easily [sic] ascertainable claim ***.”

This appeal followed.

IV. Analysis

This case was resolved on the estate’s motion for a directed finding as to the claims of Central and Paccar. Such a ruling is governed by section 2 — 1110 of the Code of Civil Procedure. (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 1110.) We consider the issues presented in light of this standard.

A. Sufficiency of Evidence to Demonstrate Claims were Reasonably Ascertainable under Pope

The critical question in this case is whether the claimants, as secured creditors, were reasonably ascertainable upon reasonably diligent efforts by the executrix to ascertain decedent’s debts and creditors. This determination is a question of fact for the trier of fact. If claimants were reasonably ascertainable, they were entitled to actual notice and if they did not get it, the time bar of section 18 — 3 of the Act did not commence to run against them.

As the trial court here noted, the Pope Court did not allocate the burden of proof on the “reasonably ascertainable by reasonably diligent efforts” issue. How is this language to be given effect? The Act, as amended, incorporates "reasonably ascertainable” language, but even if it did not this question has significance beyond this case to those involved in estate administration and, of course, to creditors.

Upon reviewing Pope, we conclude that claimants who file a claim more than six months from the issuance of letters bear the initial burden of producing evidence sufficient to establish their failure to receive written notice by mail or delivery under section 18 — 3 of the Act. Upon such a showing, the burden then shifts to the estate representative to show either that the statutory notice was given, which will automatically bar the claim, or, in the absence of notice, that the existence of the claim was not reasonably ascertainable upon reasonably diligent efforts. If the estate representative is able to prove this latter proposition by a preponderance of the evidence, then the claim will be barred.

In determining whether the estate representative has met her burden on this latter proposition, the focus should not be on the actual knowledge of the claim by the executrix nor upon what she subjectively understood legal documents to mean had she looked for them and discovered them. Rather, the focus is on the efforts expended by the executrix in attempting to discover claims against the estate.

Minimum standards of diligent inquiry would necessitate a good-faith search of decedent’s personal and business financial records to disclose debts of the estate, a search comparable to that required to marshal assets and compile a complete inventory of the estate. Since decedent ran his own business, reasonably diligent efforts might include inquiry of those persons and concerns with whom Anderson Trucking had continuing business (e.g., Central) as to what debts, if any, decedent had outstanding. We note these are secured creditors, and this in itself suggests the nature of inquiries that should have been made. (See Ill. Rev. Stat. 1987, ch. 26, par. 9 — 401.) To hold otherwise provides a disincentive to executors, who often are estate beneficiaries, to use reasonable diligence to ascertain and notify creditors of the estate. We emphasize this case was complicated by the fact the family continued to operate decedent’s business as an ongoing concern. The law imposes duties on the executor of the estate which must be fulfilled on pain of liability.

Accordingly — unless we find the claims are barred as conjectural or because Hagstrom had actual notice of decedent’s death — we must vacate the circuit court’s ruling holding the claims of Central and Paccar time barred, and remand for further proceedings, i.e., to allow the estate to put forth evidence that reasonably diligent efforts, if any, were made, when and by whom, to ascertain the existence of debts against decedent and the identities of creditors with debts outstanding upon the date of death.

B. Were the Claims “Conjectural”1!

The trial court also found the claims of Central and Paccar to be “conjectural” (so claimants were not entitled to actual notice). (See Pope, 485 U.S. at 489-90, 99 L. Ed. 2d at 578-79, 108 S. Ct. at 1347.) The estate cites Chicago Title & Trust Co. v. Corp. of the Fine Arts Building (1919), 288 Ill. 142, 155-56, 123 N.E. 300, 305, as prohibiting creditors holding only “contingent” claims from filing against the estate.

The transfer of interest agreements by which decedent transferred ownership of the four trucks he purchased from Central under security agreements/retail installment contracts to Harry Schubbe specifically provided decedent remained liable under the contracts. The claims of Central and Paccar, its assignee, as represented by the security agreements, were an absolute liability of the deceased. The assignment to Schubbe did not make the contractual liability contingent or conjectural although the estate’s liability therefor was not fixed during the six-month claims period and was dependent on Schubbe’s default. (See Dunnigan v. Stevens (1887), 122 Ill. 396, 403-04, 13 N.E. 651, 653-54; In re Estate of Mackey (1985), 139 Ill. App. 3d 126, 129, 487 N.E.2d 81, 83.) Therefore, the trial court erred in finding the claims of Central and Paccar “conjectural.”

C. Effect to be Given Hagstrom’s Knowledge of Decedent’s Death

Central and Paccar also argue they cannot be deemed to have had actual notice of the pendency of the estate just because an officer of Central had knowledge of the date of decedent’s death and attended his funeral or wake. If the trial court was correct on the effect to be given Hagstrom’s knowledge of the date of death, its ruling must be affirmed.

There are two forms of nonclaim statutes, a point reviewed in Pope as follows:

“Nonclaim statutes come in two basic forms. Some provide a relatively short time period, generally two to six months, that begins to run after the commencement of probate proceedings. Others call for a longer period, generally one to five years, that runs from the decedent’s death. [Citation.] Most States include both types of nonclaim statutes in their probate codes, typically providing that if probate proceedings are not commenced and the shorter period therefore never is triggered, then claims nonetheless may be barred by the longer period. [Citations.] Most States also provide that creditors are to be notified of the requirement to file claims imposed by the nonclaim statutes solely by publication. [Citations.] Indeed, in most jurisdictions it is the publication of notice that triggers the nonclaim statute.” (Emphasis added.) (Pope, 485 U.S. at 480, 99 L. Ed. 2d at 572, 108 S. Ct. at 1342.)

In Illinois, the Act has both basic forms of nonclaims provisions, section 18 — 3 providing the shorter time period and section 18 — 12 otherwise providing the outside time limit for claims. (Ill. Rev. Stat. 1987, ch. 1101/2, pars. 18 — 3, 18 — 12.) The time bar of section 18 — 3 of the Act commenced to run not upon notice of death but on notice of death plus the opening of the estate, the date of issuance of letters, name and address of the representative and his attorney of record, and that claims must be filed within six months of the issuance of letters or they would be forever barred. It is notice of the opening of the estate, the date of issuance of the letters, and the six-month period for filing claims which are critical under section 18 — 3(a) of the Act (Ill. Rev. Stat. 1987, ch. 1101/2, par. 18 — 3(a)). Knowledge of the date of death cannot be equated with knowledge of the critical elements under section 18 — 3(a) of the Act. Hagstrom’s knowledge of decedent’s death did not, therefore, commence the running of section 18 — 3(a) against claimants Central and Paccar. These claims were filed within 13 months of decedent’s death and promptly upon discovery of the estate proceedings. The only question remaining is whether the estate can demonstrate reasonably diligent efforts were timely made and these claimants, secured creditors, were not reasonably ascertainable.

IV. Conclusion

The judgment of the circuit court of McLean County finding the claims of Central and Paccar barred is vacated, and the cause is remanded for further proceedings, i.e., the estate may now present evidence of its “reasonably diligent efforts.”

Vacated and remanded.

STEIGMANN, P.J., and LUND, J., concur.


author: JUSTICE McCULLOUGH PRESIDING JUSTICE STEIGMANN,

text:
    GREENVIEW AG CENTER, INC., Plaintiff-Appellee, v. YETTER MANUFACTURING COMPANY, Defendant-Appellant.
    Fourth District
    No. 4 — 92—0861
    Argued April 21, 1993.
    Opinion filed June 10, 1993.

      STEIGMANN, P.J., dissenting.
    Linda L. Laugges (argued), of Keck, Mahin & Cate, of Peoria, for appellant.
    Jerry Tice (argued), of Grosboll, Becker, Tice & Smith, of Petersburg, for appellee.
    Leslie F. Kramer and Irwin Kass, both of Tomlinson, Gillman & Rikkers, S.C., of Madison, Wisconsin, for amicus curiae Midwest Farm Equipment Dealers Association.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

Yetter Manufacturing Company (Yetter) appeals the trial court’s order entering judgment in the amount of $8,183.62 in favor of Greenview Ag Center, Inc. (Greenview). The trial court found Yetter was obligated, pursuant to section 3 of the Illinois Equipment Fair Dealership Law (Fair Dealership Law) (Ill. Rev. Stat. 1991, ch. 5, par. 1503), to repurchase certain farm equipment and parts from Green-view. We affirm.

Greenview, a farm implement dealership run by David Cramer and Lyle Hunsley, had been in existence since the 1930’s. Greenview had dealt with Yetter for approximately 14 years and had previously purchased various farm equipment from Yetter. Cramer explained that different pieces of equipment were bought at various times of the year depending on when in the season that particular piece of equipment would be used. He explained, for example, rotary hoes were usually sold between January and June and were used in May or June. Greenview kept Yetter parts in stock all year so they would be on hand if a farmer needed a specific part during the season. Glenn Rittenhouse was the Yetter representative with whom Greenview associated. Ritten'house would call on Greenview monthly to take orders for whole goods. Greenview would order parts directly from Yetter.

In August 1990, Greenview elected to participate in Tetter’s “Mega Rotary Hoe Program” (Program). This offer was extended to only 12 dealers throughout the State. Under the terms of the Program, a dealer was required to purchase a minimum of 40,000 pounds of rotary hoes and would receive a 10% discount for that purchase. The number of rotary hoes that would have to be purchased to meet this minimum poundage requirement would vary depending on the size of the equipment bought. The dealer could then sell the rotary hoes to other dealers or to the ultimate consumer. Dealers were required to take delivery of the rotary hoes in September and pay by December 1,1990.

Rittenhouse explained that although rotary hoes are not used until May or June, Tetter needed a few months lead time after an order was placed to produce the rotary hoes. This is why the Program was offered in August, with September delivery, for equipment to be used approximately five or six months later. Furthermore, Tetter liked to actually have the rotary hoes in the hands of the dealers several months before the farmers needed them so the farmers could come in and examine them at the dealership.

Greenview ordered 12 rotary hoes and by December 1991 had sold all but five. Greenview terminated its dealership effective December 9, 1991. Pursuant to its termination, Greenview sent a letter to Tetter requesting it to repurchase the remaining rotary hoes from the Program pursuant to section 3 of the Fair Dealership Law. Tetter helped Greenview sell four of the remaining five rotary hoes. Tetter refused to repurchase the remaining rotary hoe and Greenview filed suit to compel the repurchase of that equipment plus other parts.

Following a bench trial, the trial court ruled in favor of Green-view. It found Greenview had “agreed to maintain an inventory of mega [sic] rotary hoes and Tetter parts, and when it terminated its agreement, [Tetter] was obligated by statute to repurchase the same from [Greenview] at [Greenview’s] request.” Judgment was entered for Greenview in the amount of $6,733.62 plus costs and attorney fees. The trial court noted:

“[Tetter’s] primary defense to this action is that it never agreed, nor did its representative agree, to buy back any leftover inventory of hoes from [Greenview]. [Tetter’s] regional sales manager, Mark Seipel, testified that Tetter had no agreement with [Greenview] to buy back inventory. However, [Tetter] overlooks the entire purpose of the Act, which was to protect the retail dealer. Under the Act, if a retailer agrees to maintain an inventory and later terminates its agreement, the distributor/manufacturer must repurchase the inventory if the retailer so requires. His agreement to do so is not relevant. The statute mandates it. Furthermore, under [section] 1510, the Act may not be varied by contract or agreement and any attempt to do so is void and unenforceable.” (Emphasis in original.)

Section 3 of the Fair Dealership Law provides:

“Whenever any retailer enters into a written or oral agreement with a wholesaler, manufacturer or distributor wherein the retailer agrees to maintain an inventory and the contract is terminated by wholesaler, manufacturer, distributor, or retailer, then the retailer may require the repurchase of the inventory as provided for in this Act.” Ill. Rev. Stat. 1991, ch. 5, par. 1503.

Where statutory language is clear and unambiguous, a court must enforce the law as enacted without considering other aids of construction. (People v. Drakeford (1990), 139 Ill. 2d 206, 214, 564 N.E.2d 792, 796.) Judicial construction of a statute is necessary only when a statute is unclear or ambiguous. (Buckellew v. Board of Education of Georgetown-Ridge Farm Community Unit School District No. 4 (1991), 215 Ill. App. 3d 506, 511, 575 N.E.2d 556, 559.) Where language of a statutory provision is clear, the court must give it effect. (West v. Kirkham (1992), 147 Ill. 2d 1, 6, 588 N.E.2d 1104, 1106.) The issue before us, then, is whether there was a written or oral agreement between Yetter and Greenview wherein Greenview agreed to maintain an inventory of rotary hoes.

Yetter raises two arguments in its contention that the trial court erred in finding in favor of Greenview. First, Yetter alleges the Fair Dealership Law does not apply to this situation because Yetter and Greenview did not enter into an express written or oral agreement to maintain inventory. Alternatively, Yetter maintains that if an implied agreement may be used to invoke the Fair Dealership Law, Green-view failed to establish that an implied agreement ever arose between the parties in which Greenview agreed to maintain inventory.

Greenview contends it entered into an oral agreement with Yetter by its participation in the Program, which by such participation, it agreed to maintain an inventory of the rotary hoes for the time period between January and June 1991. It further contends that only it and not Yetter had to agree that it would maintain inventory. Finally, Greenview asserts that if this court decides the Fair Dealership Law requires consent by Yetter for Greenview to maintain inventory, such consent can be inferred through the custom in the area and previous dealings between the parties.

Both Yetter and Greenview concede there was no express agreement, either written or oral, between them in which Greenview agreed to maintain inventory. Rittenhouse stated there was no express written or oral agreement to maintain inventory and there was no provision in the Program itself to buy back any inventory. Likewise, Cramer testified there was no express written or oral agreement to maintain inventory.

However, the facts presented in this case are sufficient to establish an implied agreement between Yetter and Greenview in which Greenview agreed to maintain an inventory. This implied agreement is evident from the terms of the Program, the course of dealing between the parties regarding the Program, and the custom and usage in this industry.

An implied-in-fact contract consists of obligations arising from an agreement where an agreement has not been expressed in words. The only difference between an implied contract and an expressed contract is that an express agreement is derived from an actual agreement, either verbal or written, and a contract implied in fact is inferred by a consideration of the facts and conduct of the parties. (In re Marriage of Bennett (1992), 225 Ill. App. 3d 828, 831, 587 N.E.2d 577, 580.) An implied contract is proved by circumstances showing the general course of dealing between the parties. An agreement may be inferred from the acts or conduct of the parties instead of their spoken words. (Bull v. Mitchell (1983), 114 Ill. App. 3d 177, 186, 448 N.E.2d 1016, 1023.) A term to be established as part of a contract by custom and usage of the trade must not be inconsistent with the other contract terms, must be well settled and uniformly acted upon. Gord Industrial Plastics, Inc. v. Aubrey Manufacturing, Inc. (1984), 127 Ill. App. 3d 589, 591-92, 469 N.E.2d 389, 392.

Under the terms of the Program, Greenview had to buy 40,000 pounds of rotary hoes and take delivery about six months before the ultimate purchaser would need the implements. As such, it was almost inevitable that it would not sell all of the rotary hoes. Mark Seipel, the Yetter representative, knew that some of the dealers who participated in the Program would carry over those hoes they did not sell into the next season. The number of rotary hoes a dealer could sell would vary from year to year depending upon the particular needs of the area farmers. Seipel testified there was no specific requirement to maintain inventory as a Yetter dealer. It was Yetter’s goal to have its dealer sell out annually and start each new season with a fresh inventory.

Section 9 — 109(4) of the Uniform Commercial Code — Secured Transactions (Ill. Rev. Stat. 1989, ch. 26, par. 9 — 109(4)) defines “goods” as “inventory” “if they are held by a person who holds them for sale.” Part of the comment to section 9 — 109 states:

“The principal test to determine whether goods are inventory is that they are held for immediate or ultimate sale. Implicit in the definition is the criterion that the prospective sale is in the ordinary course of business.” (Ill. Ann. Stat., ch. 26, par. 9— 109, Uniform Commercial Code Comment, at 82 (Smith-Hurd 1974).)

Section 2(2) of the Fair Dealership Law defines “inventory” to include farm equipment, farm machinery, attachments, accessories and repair parts. (Ill. Rev. Stat. 1989, ch. 5, par. 1502(2).) Construing those two definitions together, the rotary hoes purchased pursuant to the Program, which were held by Greenview for immediate or ultimate sale, were inventory. However, because the terms of the Program required Greenview to purchase such a large number of rotary hoes, Yetter, knowing Greenview probably could not sell all of those rotary hoes, was in essence also requiring Greenview to maintain an inventory of rotary hoes. Similarly, by ordering 40,000 pounds of rotary hoes, Greenview obtained an inventory of rotary hoes out of which it filled its orders.

The course of dealing between the parties helps to establish an agreement in which Greenview agreed to maintain an inventory of rotary hoes. Cramer was told that if he did not participate in the Program, he would not be able to get any rotary hoes directly from Yetter later on if he desired to order one or two of these hoes because Yetter was only going to make as many rotary hoes as it had purchase orders for. If Greenview did not participate, and then later needed a rotary hoe, it would have to buy it from another dealer, presumably at a higher price resulting in less profit. In essence, Green-view had to participate in the program if it wanted the rotary hoes. By forcing Greenview to participate, Yetter created an inventory within the meaning of the statute. Ill. Rev. Stat. 1991, ch. 5, par. 1503.

Finally, the custom and usage of this industry supports the conclusion that the dealers would maintain an inventory of rotary hoes by participating in the Program. Frank Hofreiter was a part owner in a farm equipment dealership in Havana, Illinois. He participated in the Program in 1990 and 1991. When asked whether, by participating in this program, he agreed to maintain inventory of rotary hoes for Yetter during that farming season, he testified “[w]e had to take [what] I call delivery and control inventory of it and stuff, yeah[, you had] to be able to have it.”

Cramer attempted to explain why he believed he was required to maintain inventory. He testified:

“He [Rittenhouse] would imply to us or *** say to us, not imply but say to us, in fact we talked about this at great length on numerous conversations, even had phone conversations with somebody from Yetter that we’re concerned about inventory on this many hoes. Well[,] don’t be because Yetter isn’t going to have hoes. They’re only going to build those which they sell. Those were the things that were told to us in this manner and to me all of that is that you’re going to maintain an inventory.”

When asked whether he was specifically told he had to retain inventory in the Program, Cramer testified, “They did not say to you, you must maintain inventory. They’d say to you you buy this many hoes or there will not be hoes available.” Seipel knew it would be unlikely that a dealer who participated in the Program would actually sell all of the rotary hoes. He also knew that the dealer who did not sell all of his rotary hoes would simply carry those over, presumably as inventory, until the next season.

Although not necessary to our resolution of the issue presented by this appeal, we find support for our decision in the legislative history of the Fair Dealership Law. The judicial role in construing statutes is to ascertain the legislative intent and give it effect. To aid in accomplishing this task, a court will seek to determine the objective the legislature sought to accomplish and the evil it desired to remedy. (People v. Scharlau (1990), 141 Ill. 2d 180, 192, 565 N.E.2d 1319, 1324-25.) That inquiry begins with the language of the statute and entails a consideration of the reason and necessity for the law, the evils to be remedied, and the objects and purposes to be obtained. (People v. Garrett (1990), 136 Ill. 2d 318, 329, 555 N.E.2d 353, 358.) To ascertain legislative intent, a court must first look to the language of the statute, examining that language as a whole, considering each part or section in connection with every other part or section. Antunes v. Sookhakitch (1992), 146 Ill. 2d 477, 484, 588 N.E.2d 1111, 1114.

The legislative intent behind the statute was to protect the independent farm equipment dealers who were being forced to purchase lots of expensive equipment and then being stuck with that equipment if their business failed. This is precisely the situation presented here. “[W]hen we initiated this law back in 1983, it was for the purposes of farm equipment and construction equipment to be able to be bought back for those dealerships through very tough times.” (86th Ill. Gen. Assem., Senate Proceedings, May 25, 1989, at 260 (statement of Senator Donahue).) In discussing whether to expand the Fair Dealership Law to include outdoor power equipment, Senator Hudson stated “perhaps we are expanding what started out to be a reasonable idea and that was protecting — as I understand it — retailers and dealers in times of economic trouble.” 86th Ill. Gen. Assem., Senate Proceedings, May 25, 1989, at 264 (statement of Senator Hudson).

Moreover, the legislative history shows that the type of situation presented here was specifically envisioned by the senators. For instance, Senator Rigney stated:

“I think we must realize that many of these machinery dealers were encouraged by the manufacturer to tie up some rather substantial amounts of money in the various forms of inventory, whether it be in the form of the machinery itself or whether we’re talking about the repair parts. It’s absolutely mandated upon them that they tie up this kind of money if they are going to be a dealer within that system. *** What it does, it avoids the fire sale type of disposal that would have to take place if we did not have some type of buy-back provision.” (83d Ill. Gen. Assem., Senate Proceedings, May 24, 1983, at 135 (statement of Senator Rigney).)

Senator O’Daniel noted:

“[A] lot of times dealers are required by companies to stock a large inventory, maybe a lot of stuff — of parts they — that don’t move fast and probably they’ll never sell. And if they ever decide to go out of business or anything, a lot of times they aren’t fairly reimbursed for those.” 86th Ill. Gen. Assem., Senate Proceedings, May 25, 1989, at 265 (statement of Senator O’Daniel).

Finally, in a motion taken with case, Greenview seeks its attorney fees incurred on appeal. Generally, attorney fees are not recoverable unless permitted by statute. (People v. Johnson (1981), 87 Ill. 2d 98, 107, 429 N.E.2d 497, 501; Modern Mailing Systems, Inc. v. McDaniels (1989), 191 Ill. App. 3d 347, 349, 547 N.E.2d 762, 764.) Statutes in derogation of the common law prohibition of attorney-fee awards to prevailing parties must be strictly construed. Sutton v. Edgar (1986), 147 Ill. App. 3d 723, 733, 498 N.E.2d 295, 302.

Section 8 of the Fair Dealership Law clearly allows for attorney fees incurred at the trial level. That section provides:

“If any wholesaler, manufacturer or distributor shall fail or refuse to repurchase any inventory as required by Section 4 of this Act, he shall be civilly liable for 100% of the current net price of the inventory, plus any freight charges paid by the retailer, the retailer’s attorney’s fees, and court costs, plus interest at the statutory rate from date of shipment to wholesaler, manufacturer or distributor.” (Emphasis added.) (Ill. Rev. Stat. 1991, ch. 5, par. 1508.)

The inquiry here is whether attorney fees and costs incurred on appeal should also be awarded.

In Department of Public Works & Buildings v. Lanter (1958), 15 Ill. 2d 33, 153 N.E.2d 552, the supreme court was faced with the issue of whether attorney fees incurred at the appellate level were recoverable by a prevailing party pursuant to section 10 of the Eminent Domain Act (see Ill. Rev. Stat. 1955, ch. 47, par. 10). In determining that those fees were recoverable under the facts of the case, the court stated:

“The plain intent of that provision is to pay defendants for all reasonable attorney fees incurred in defense of the condemnation petition under the circumstances specified in section 10. Where that defense must be made, not merely in the trial court, but also in a reviewing court because the Department has taken an appeal to that court, and defendant has no choice in the matter, then the attorney fees incurred in connection with that appellate court proceeding must be deemed to be an integral part of the defense of the condemnation petition, and should be recoverable under the statute. Where, however, the appeal is taken by the defendant property owner, and the choice of proceeding in another court is his, then the legal services in that court need not be regarded as an integral part of the defense of the condemnation petition, and the fees for such services should not be compensable under the statute.” Department of Public Works & Buildings, 15 Ill. 2d at 40, 153 N.E.2d at 556.

Although a different statute was involved in that case (Ill. Rev. Stat. 1955, ch. 47, par. 10) than in the case presently on appeal, the rationale is applicable here and supports Greenview’s argument that it should be awarded its attorney fees incurred at this level. The specific terms of the statute allow for attorney fees incurred at the trial level. Since Yetter has taken an appeal, Greenview had no choice except to defend the trial court’s decision in its favor. Thus, its attorney fees incurred on appeal must be deemed to be an integral part of its defense under the Fair Dealership Law. As such, those fees are recoverable under section 8 of the Fair Dealership Law.

For the foregoing reasons, the judgment of the circuit court of Menard County is affirmed. In addition, Greenview’s motion for attorney fees and costs on appeal is granted, and the cause is remanded to the trial court for a hearing on the amount of attorney fees and costs reasonably expended by Greenview in defending this appeal.

Affirmed and cause remanded with directions.

COOK, J., concurs.

PRESIDING JUSTICE STEIGMANN,

dissenting:

I respectfully dissent.

Although the majority opinion does a fine job of constructing an argument that the agreement between Greenview and Yetter required Greenview “to maintain an inventory,” I believe in the final analysis that argument falls short. The question that I think must be answered before we can affirm this judgment is the following: If Greenview had unexpectedly sold all of the 40,000 pounds of rotary hoes that it ordered from Yetter, would it have been contractually obligated to purchase more in order “to maintain an inventory?” Because I think the answer clearly is no, I believe we must reverse the trial court, finding that section 3 of the Fair Dealership Law does not apply to this case.

In my 'view, the statute in question is really a “showroom statute.” It is designed to address a situation in which a manufacturer requires a dealer to keep the manufacturer’s product in the dealer’s showroom so that prospective purchasers can see it, touch it, and “kick the tires” (so to speak), as opposed to merely looking at a photograph of the product. The statute was designed to protect the dealer whose contract with the manufacturer required the dealer “to maintain an inventory,” so that the manufacturer would be required to buy back the inventory the manufacturer contractually required the dealer “to maintain.”

All that happened in the present case is that Yetter Manufacturing offered Greenview a good deal on a large volume of Yetter’s product, namely, a quasi-exclusive sales arrangement plus a 10% discount on the purchase price. After the fact, Greenview comes to the courts, arguing the commercial-law-equivalent of, “Stop me before I kill again.” Greenview really is arguing that the courts need to protect it from a deal it voluntarily entered into. We should decline and leave free market forces alone. No one held a gun to Greenview’s head to get it to make this deal with Yetter, and Greenview should be stuck with the deal it made.