text:
      In re ESTATE OF STEPHEN W. HOLMGREN, Deceased (Leonard W. Holmgren et al., Petitioners-Appellants, v. Gianna A. Holmgren, as Adm’r of the Estate of Stephen W. Holmgren, Respondent-Appellee).
    Third District
    No. 3-92-0023
    Opinion filed December 3, 1992.

      Katz, McAndrews, Balch, Lefstein & Fieweger, of Rock Island (Samuel S. McHard, of counsel), for appellants.
    Vonachen, Lawless, Trager & Slevin, of Peoria (John A. Slevin, of counsel), for appellee.
   JUSTICE HAASE

delivered the opinion of the court:

The decedent, Stephen W. Holmgren, died in a tragic car accident on July 19, 1990. Steve’s wife of approximately eight weeks, Gianna Holmgren, was named administrator of the estate and employed attorney John Slevin to represent her in the matter. Steve’s parents, Leonard and Anne Holmgren, filed claims against their son’s estate. The parents sought possession of a speedboat valued at approximately $25,000 and the repayment of monies loaned to their son for the purchase of his marital residence. The estate disputed the parents’ claims and filed a petition for a citation to discover assets. The parents subsequently sought sanctions against attorney Slevin for an alleged breach of trust and bad-faith pleading. The trial court denied the parents’ motions for sanctions, awarded possession of the boat to the estate, and ordered the estate to pay the parents $5,350 for monies loaned to their son in connection with the purchase of his residence. The parents appeal the court’s decisions awarding the boat to the estate and denying their motion for sanctions. The estate cross-appeals part of the $5,350 award to the parents.

At a hearing on the estate’s petition, the parents testified that after Steve graduated from college in the spring of 1986, he moved back to his parents’ home, where he intermittently resided until November of 1989. During that time, Steve became employed at a well-paying job and continued to live with his parents rent free. Shortly after Christmas of 1986, Leonard and Steve Holmgren went to Ted’s Boatarama in Rock Island, Illinois, to look at speedboats. Steve picked out the boat he liked best and placed an order for a Checkmate speedboat, with accompanying Mericruiser motor and Shoreline trailer. Steve could not obtain financing for the boat in his own name so his parents bought the boat and financed the transaction through the Southpark National Bank of the Quad Cities, under a 48-month loan, with monthly payments of $417.34. After tax changes made interest on such loans nontax deductible, the parents refinanced the boat with a home equity mortgage. At all times after the purchase, the parents took a tax deduction for the interest payments made on the boat.

The parents further testified that they always owned the boat and that there was no agreement to convey it in whole or in part to Steve. They acknowledged that Steve frequently made monthly payments of $417.34, first to the Southpark National Bank, and after they refinanced, to Anne Holmgren. The parents stated, however, that these payments represented Steve’s contribution to the family’s expenses and were not for the boat.

The parents introduced into evidence documents showing that certificate of title to the boat was in their name, that they paid for some repairs and maintenance, and that they bought a cover and battery for the boat. They also introduced into evidence a document showing that after Steve had moved out of his parents’ house, he made two payments to them of $417.34 each.

Gianna Holmgren testified that the boat was named “Freebird” after Steve’s favorite song. She noted that a plaque in the boat read “Made especially for Steve Holmgren.”

Over objection by opposing counsel that her testimony violated the rule against hearsay and the Dead Man’s Act (Ill. Rev. Stat. 1991, ch. 110, par. 8—201), Gianna further testified that Steve’s parents had taken out a loan for him on the boat and he was paying them back with interest. She noted that when he made payments on the boat he detached a sheet from a monthly payment book.

Rob Mindock, the best man at Steve’s wedding, testified that Steve had frequently talked about having a boat, had showed him brochures of various boats, and then he finally bought one. Mindock stated that Steve told him that they were going to have a lot of fun with his toy, referring to the boat. He further testified that Steve had told him that he made regular payments to his parents for the boat and that he owed about 10 more payments. The parents’ counsel objected to Mindock’s testimony on hearsay grounds and the objection was overruled by the trial judge.

Steve’s father-in-law, Vivan Ragusa, testified regarding the boat transaction that Steve had told him that he could not obtain the necessary credit without his parents and that his parents received a tax deduction for the interest on the loan. Ragusa recalled that Steve stated that he wanted a truck to pull his boat and that he wanted to store it indoors for the winter. He further recalled that Steve wanted to trade it in for a bigger boat. The parents’ hearsay objections to Ragusa’s testimony were again overruled by the trial judge.

The estate introduced into evidence copies of checks that Steve wrote to Southpark National Bank for $417.34, a payment book for the boat found in Steve’s possession at the date of his death, receipts from Ted’s Boatarama with Steve’s name, and checks written by Steve to Anne Holmgren for $417.34 after the loan was refinanced.

On appeal, the parents first argue that the trial court erred in awarding the boat to the estate. They point out that since they held title to the boat, a prima facie presumption of ownership arose in their favor. They contend that much of the evidence offered by the estate violated the rule against hearsay and that, absent the erroneously admitted evidence, the estate failed to offer enough evidence to overcome the presumption of ownership by the parents. Specifically, they complain that the testimony of Mindock, Ragusa, and Gianna Holmgren violated the hearsay rule. They also argue that the various documents offered by the estate violated the hearsay rule.

Under Illinois law, a prima facie presumption of ownership arises from a certificate of title; however, this presumption may be rebutted by competent evidence of actual ownership. Pekin Insurance Co. v. U.S. Credit Funding, Ltd. (1991), 212 Ill. App. 3d 673, 571 N.E.2d 769.

Hearsay evidence is testimony in court or written evidence of a statement made out of court, such statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter. (See Hengels v. Gilski (1984), 127 Ill. App. 3d 894, 469 N.E.2d 708; Simon v. Plotkin (1977), 50 Ill. App. 3d 603, 365 N.E.2d 1022.) A statement that is hearsay may be admissible if it satisfies an exception recognized by Illinois common law or an exception provided by statute. (People v. Frye (1983), 113 Ill. App. 3d 853, 447 N.E.2d 1065.) A statement expressing the declarer’s then existing state of mind, emotion, sensation, or physical condition, such as intent, plan, motive or design, mental feeling, pain and bodily health, is admissible as a hearsay exception. (E. Cleary & M. Graham, Handbook of Illinois Evidence §803.4, at 428 (3d ed. 1979).) However, the exception does not extend to the declaration of having done a past act, since to do so would effectively destroy the hearsay rule. See E. Cleary & M. Graham, Handbook of Illinois Evidence §803.6, at 431 (3d ed. 1979).

Examining the complained-of testimony, we find that much of it was inadmissible hearsay and did not fall under any exception. Some of the statements in question constitute the decedent’s declaration of past events and for that reason are not admissible under the hearsay rule. Some of the statements reflect the existing state of mind, intent or plan of the decedent and are admissible as hearsay exceptions, if offered for those purposes. However, in this case, we are of the opinion that the statements that could reasonably be classified as expressing the decedent’s state of mind, intent or plan were not offered for that purpose but were offered as evidence to rebut the presumption of title in the decedent’s parents. In other words, they were offered to prove the truth of the matters contained therein, rather than to establish the state of mind of the decedent.

Specifically, we find that the trial court improperly admitted Mindock’s and Ragusa’s testimony that Steve showed them boat brochures, stated that he bought a boat and that he made payments to his parents for the boat. These statements appear to this court to be declarations of past acts and as such are inadmissible under the hearsay rule. The statement that the decedent owed 10 more payments could be admissible to reflect the state of mind of the decedent, but is not admissible to prove the truth of the matter asserted that he was the owner of the boat rather than his parents. Another statement made to Mindock and Ragusa that the decedent could not obtain the necessary credit is, in our opinion, a declaration of a past act and not admissible.

Decedent’s statement that his parents received a tax deduction for the interest is hearsay on hearsay. The decedent could have no independent knowledge of his parents’ tax deductions, but knows of them only because his parents told him or he viewed a tax return. In either event, it is hearsay and his statement to Mindock and/or Ragusa is likewise hearsay. This statement does not show the decedent’s state of mind and is offered to prove the truth of the matter asserted and is thus inadmissible.

Likewise we find that the court improperly admitted Gianna Holmgren’s testimony that Steve’s parents had taken out a loan on the boat and Steve was paying them back with interest. This testimony is hearsay and also violates the Dead Man’s Act to the extent that Gianna Holmgren obtained this information from Steve. It is not admissible as to Gianna Holmgren’s state of mind because Gianna Holmgren’s state of mind is irrelevant in these proceedings.

Regarding the documents offered by the estate, we note that they are also inadmissible hearsay. While some of these records may have been admissible under the business records exception to the hearsay rule, they were not offered as such. No foundation was laid for these documents as business records and the estate’s counsel on appeal concedes that the estate is not relying on that exception.

Examining the estate’s evidence of ownership absent the erroneously admitted evidence, we find that there was not enough competent evidence to overcome the presumption of the parents’ ownership of the boat. It was undisputed that at all relevant times the parents held title to the boat and maintained possession of it. Moreover, they testified that they never intended to convey the boat to Steve. Accordingly, we find that the trial court erred in awarding the Checkmate speedboat to the estate. Based on our review of the record, we are of the opinion that the trial court’s decision awarding the Checkmate speedboat to the estate was against the manifest weight of the evidence. There was not sufficient competent evidence of actual ownership to rebut the presumption arising from the fact that title was held in the decedent’s parents. Accordingly, we reverse that portion of the trial court’s order which awarded the Checkmate speedboat to the estate.

The parents next argue that the trial court erred in denying their motion for sanctions against attorney Slevin. They contend that Slevin breached a fiduciary duty by not placing certain monies they sought in a trust fund upon receipt of their demand.

In that regard, the record shows that in October of 1989, Steve purchased a home in Peoria, Illinois, which ultimately was used as his marital residence. To effectuate the purchase, the parents had to sign the note and mortgage, and loan Steve money to cover the closing costs and other expenses. It was also necessary to add Leonard Holmgren’s name to the title as a tenant in common. After Steve’s death, the parents received correspondence from the administrator’s attorney, John Slevin. Slevin informed the parents that Steve’s employer offered, as a fringe benefit, a residence repurchase plan which would purchase the home from Steve’s estate, but only if Leonard would transfer his interest in the home to the estate. In his letter, Slevin explained as follows:

“In order to remove your name as tenant in common, it will be necessary for you to sign the enclosed Quit Claim Deed conveying the property to your son’s estate. This will enable [Gianna] to give a Warranty Deed as administrator of the estate. Please accept this letter as assurance that any funds advanced by you for the initial down payment or any loan payment will be repaid in full at the time of closing of the sale and transfer to Prudential. Please let me know that amount.”

In response to Slevin’s letter, the parents signed and delivered the enclosed quit claim deed with a list of the amounts they expected to be repaid. The repayment list read as follows:

“$4,000 — initial down payment
$1,350 — closing costs
$892 — the August, 1990 house loan payment”

The estate repaid the parents $892 for the August house payment, the month in which Steve died. The estate also acknowledged that the $1,350 in closing costs was a valid claim. A dispute arose, however, over the $4,000 claimed to have been loaned by the parents. Attorney Slevin sent a follow-up letter to the parents requesting “clarification” of the $4,000 down payment. Feeling that the proof offered by the parents was not sufficient, Slevin withheld payment pending resolution of this dispute. The parents subsequently asked the court to sanction Slevin. The parents claimed that Slevin breached the terms of his original “trust letter” by failing to place the disputed monies in a separate trust account. The parents further claimed Slevin should be sanctioned for denying the existence of the $4,000 debt. The parents contended that this denial constituted a bad-faith pleading.

At a hearing on the plaintiff’s motion, Slevin produced a passbook account showing that the money was currently being held in trust for the benefit of the parents, pending a ruling by the court. Thereafter, the trial court denied the parents’ motion for sanctions.

On appeal, the parents argue that attorney Slevin breached a fiduciary obligation to them by not immediately depositing $5,350 in a segregated trust fund upon their demand of payment. In support of this claim, the parents assert that as soon as they received attorney Slevin’s “trust letter,” Slevin owed them a fiduciary obligation to deposit the money in a trust account. The parents further argue that the trial court erred in not sanctioning Slevin for filing a bad-faith pleading. The parents claim that Sievin’s “general denial” that $4,000 was loaned to their son was made in bad faith.

Initially, we find that attorney Slevin improperly obtained the deed from the parents and then closed the deal when there was a dispute as to the amount owed the parents. However, we find that even though we disagree with Sievin’s conduct in that regard, we do not find that sanctions are warranted under the circumstances. There is no allegation that the estate lacked the funds to pay the amount found due and owing. Nor is there any allegation that attorney Slevin deposited estate monies in his personal bank accounts or put estate monies to an improper use. While we hold that this is not an appropriate case for sanctions, we do order that the estate pay the parents interest on the amount withheld by Slevin, at the statutory rate, from the date of the closing on the repurchase of Steve’s marital residence until the money is finally paid.

Next, the estate cross-appeals the trial court’s order awarding the parents the $4,000 they allegedly loaned their son as a down payment for the house.

We find that the estate’s cross-appeal is without merit. The parents testified that they loaned Steve $4,000 as a down payment on the purchase of his house. The trial court heard the parents testify and obviously found their testimony convincing. Since the trial court, as trier of fact, was faced with the responsibility of determining the credibility of the witnesses and resolving questions of fact, we cannot say that its decision was against the manifest weight of the evidence.

For the foregoing reasons, the judgment of the circuit court of Peoria County is reversed as to the ownership of the Checkmate speedboat and is affirmed as to all other matters.

Affirmed in part; reversed in part.

McCUSKEY and SLATER, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE BARRY

license: Public Domain

text:
      In re MARRIAGE OF LYMAN C. TIEMAN, Petitioner-Appellee, and ANTOINETTE TIEMAN, Respondent-Appellant.
    Third District
    No. 3—91—0958
    Opinion filed December 3, 1992.

      Ross B. Shugan and Robert J. Schmit, both of LeVine, Wittenberg & Shugan, of Homewood (Howard M. LeVine, of counsel), for appellant.
    Troha, Troha & Bednarek, of Joliet (Theodore J. Bednarek, of counsel), for appellee.
   PRESIDING JUSTICE BARRY

delivers the opinion of the court:

Antoinette Tieman appeals from an order entered in the circuit court of Will County denying her petition for modification of child support and granting two petitions of Lyman C. Tieman in which he sought to terminate his obligation to pay a portion of the college expenses of the parties’ oldest son Chris and to reduce by one-third the amount of life insurance he was required to maintain for the benefit of his three sons.

Three issues are raised on appeal: (1) Did the court err in reducing Lyman’s life insurance obligation from $150,000 to $100,000? (2) Did the trial court abuse its discretion in denying Antoinette’s motion for continuance as to her supplemental petition for modification for purposes of discovery? (3) Did the trial court err or abuse its discretion in refusing to allow Antoinette to withdraw her supplemental petition for modification of child support? We affirm the rulings of the trial court.

Lyman obtained a divorce from Antoinette in 1984. The order entered following trial awarded custody of the three sons jointly to Lyman and Antoinette with Lyman to have physical custody and to be solely responsible for their support. The trial court divided the assets and liabilities of the parties, made provision for pending tax liabilities, and also provided:

“The term-life insurance on the life of the Plaintiff [Lyman] in the amount of $150,000 shall be kept and maintained by the Plaintiff with the children as beneficiaries until the youngest attains the age of eighteen years.”

Disagreements over visitation and custody prompted ongoing court appearances beginning in July of 1987. These disputes ended with an agreed order entered on May 15, 1989, transferring physical custody of the boys to Antoinette, requiring Lyman to pay $350-per-week child support for the two minor children and one-half of actual college expenses (within certain limits). Antoinette is to pay one-fourth of the college expenses and the child is to pay one-fourth unless the child is unable to pay in which case Lyman’s share will be two-thirds and Antoinette’s share one-third. The liability for college expenses is conditioned upon the son’s attendance full time in good standing during four consecutive years of fall and spring semesters. The 1989 agreed order also contained provisions for medical, dental and orthodontic expenses.

On October 22, 1990, after notice, Antoinette presented to the trial court a petition for rule to show cause and for modification. Lyman was given 28 days to respond, and all pending matters were set for hearing on December 3, 1990. The first of many continuances was agreed to on December 3, and thereafter Lyman filed a motion to strike Antoinette’s petition on the grounds that it inappropriately combined several claims and requests for relief. Three additional continuances were granted until, on March 20, 1991, the court ordered all pending matters to be heard on May 20, 1991, with no further continuances.

In April Lyman filed two petitions: one to terminate his college support obligation for the oldest son Chris and the other to reduce the life insurance benefit on a pro rata basis. On May 28, 1991, when Antoinette’s attorney failed to appear, the trial court entered another order setting the matter for June 6 with the notation, “Both parties notified that there will be no continuances.”

On June 6, Antoinette’s attorney obtained a change of venue from the judge first assigned to hear the case, and then, appearing before Judge Angelo Pistilli, he presented two “supplemental petitions,” one for a rule to show cause and the other for modification of child support. He stated that the underlying petition filed by Antoinette was being withdrawn (in fact, the October 1990 petition had never been filed with the circuit clerk) and that he needed time to do some discovery as to the supplemental petition for modification, particularly to obtain Lyman’s 1990 income tax return. Antoinette maintained that the supplemental petition seeking an increase in child support contained new matters not contained in the original petition for modification, but Lyman argued that the issues were exactly the same and that she has had ample time for discovery since October of 1990. The trial court denied the motion for continuance and stated that the pending petitions would be heard one at a time.

The court first heard Lyman’s petition to terminate college support for Chris. Chris testified that he was 21 years old, that he had attended Arizona State in 1987, Joliet Junior College in 1988, Augustana College in 1989, and Loyola University in 1990. He admitted that he was now only a second semester sophomore, that he had withdrawn from Arizona State during the first semester, that he had attended Joliet Junior College for three semesters, that he had withdrawn from Augustana during his second semester there, and that he had left Loyola in February of 1991 to go to California to visit a 16-year-old girl. The trial court found that Chris had violated the conditions entitling him to college support and granted Lyman’s petition to terminate all support for Chris. This ruling is not challenged on appeal.

Next the court considered Lyman’s petition for a reduction of insurance benefits. The 1984 judgment of dissolution required Lyman to maintain $150,000 in insurance with his three sons as beneficiaries until the youngest son reached the age of 18. Lyman sought to reduce the amount of insurance to $100,000, reflecting the pro rata decrease of his child support obligation now that his duty to support Chris was terminated. Lyman testified that his policy was only for $100,000 and that he had erroneously thought it was $150,000 at the time of the 1984 order. He further testified that he had always understood that one-third of his insurance liability would be abated as each child became an adult since the purpose of the insurance was to guarantee his support payments. The trial court rejected Antoinette’s argument that the agreed order was a clear and unambiguous contract between the parties and ordered the insurance reduced to $100,000.

At this stage of the hearing, Antoinette’s attorney requested that her supplemental petitions be set for hearing at another time so he could attend an afternoon hearing in the Chicago downtown Loop. When the court refused, Antoinette’s attorney said he would withdraw the petitions and refile them later since the hearing on them had not started. The trial court stated, “Your motion to withdraw is denied. *** I will not let you go.’’

With Antoinette’s attorney participating, the court then began to hear her supplemental petition for a rule to show cause alleging in count I that Lyman was in arrears as to child support in the amount of $1,310. Lyman admitted the arrearage and agreed to pay in full by the following Monday. As to count II, Antoinette sought payment of $2,000 owed to Loyola by Chris for the semester he failed to complete in the spring of 1991. The testimony indicated that Chris wanted to attend Loyola in the fall of 1991, but he would not be admitted unless his previous bill was paid. The $2,000 amount at issue represented Lyman’s portion of the unpaid bill. The trial court found that Chris failed to mitigate damages when he left Loyola in February without requesting a refund and that Lyman was liable only for expenses relating to full-time attendance. The petition was denied as to count II.

Next the court took up Antoinette’s petition for modification and denied another request for continuance. When her attorney then sought to withdraw the petition, the trial court ruled that the motion for increase was denied. The written order subsequently entered recited that Antoinette’s attorney refused to proceed, that the supplemental petition for modification was denied with prejudice, that the original petition was identical to the present one and had been pending since October of 1990, and that Antoinette had failed to undertake necessary discovery.

On August 8, 1991, Antoinette filed a motion to reconsider which the trial court denied by written order on November 21, 1991. This appeal was then perfected.

The first issue is whether the trial court erred in reducing Lyman’s obligation to provide term life insurance in the sum of $150,000. Antoinette argues that the provision for life insurance in the original decree was a nonmodifiable division of property which could not be reduced. She relies upon Lewis v. Lewis (1970), 120 Ill. App. 2d 263, 256 N.E.2d 660, where a decree of divorce had directed the father to maintain a certain life insurance policy and to name the child as the irrevocable beneficiary. While the child was still a minor, the father sought to modify this provision. His request was denied on the ground that the child had a vested right to the insurance as originally provided. Similarly, in Reid v. Reid (1965), 58 Ill. App. 2d 357, 208 N.E.2d 1, a provision for insurance with the children to be irrevocable beneficiaries was held to have been intended to require the father to retain the children as beneficiaries until such time as they had all completed their education, at which time his obligation ended.

The case before us does not provide for the naming of irrevocable beneficiaries. Presumably, now that Lyman’s obligation to support his oldest son Chris has ended, he could change the beneficiaries of the insurance policy to exclude Chris. As was indicated in Reid v. Reid, life insurance benefitting a child is intended to secure that child’s support in the event of the death of the insured. Here, the trial court found that the insurance provision in the original judgment order was for the purpose of securing Lyman’s support obligation to his three sons. We conclude that such a finding is reasonable. As a part of Lyman’s support obligation, the provision was modifiable under section 510(a) (Ill. Rev. Stat. 1991, ch. 40, par. 510(a)), upon a showing of a substantial change of circumstances.

The fact that a child attains the age of majority has been held a substantial change in circumstances. (In re Marriage of Christiansen (1980), 89 Ill. App. 3d 167, 411 N.E.2d 519.) Here the key fact is that Lyman’s obligation to pay a portion of one son’s college expenses has ended and, thus, he no longer has any financial obligation to Chris. This change in circumstances was sufficient to justify the trial court’s order providing for a pro rata reduction in the life insurance obligation. We conclude that the trial court’s order was neither contrary to law nor an abuse of the court’s discretion, but rather was permissible under the evidence.

Next, Antoinette contends that the trial court erred in denying her a continuance as to her supplemental petition for modification. She argues that she intended to offer the supplemental petition in the event the trial court ruled in favor of Lyman upon his motion to strike her original petition. The transcript of the proceeding in the trial court does not support this assertion. At the commencement of the June 6 hearing, Antoinette’s attorney presented the supplemental petition and stated that he was withdrawing the original petition. A ruling on the motion to strike was never requested by Lyman for the obvious reason that the petition to which it was directed had been withdrawn. The first entry on the circuit court docket for this case on the date of June 6, 1991, is as follows: “All underlying motions are withdrawn.”

Antoinette also argues that the supplemental petition contained new allegations in support of her request for an increase in child support payments. She says these new allegations include that Lyman’s net income was higher than he stated in his affidavit prior to the 1989 agreed order, that her income has decreased, and that the remaining minor child’s needs have increased. When requesting a continuance, Antoinette’s attorney asserted the need for time for discovery, particularly to obtain Lyman’s 1990 income tax return. In denying any continuance for discovery the trial court indicated that Antoinette had had ample time for discovery since the October 1990 petition was also a request, for an increase in support for the youngest son on the ground that Lyman’s income had substantially increased. She admits that no request for Lyman’s 1990 income tax return had been made prior to the June 6 hearing although the parties had voluntarily furnished financial records upon request in the past.

We have examined both the original petition for modification and the supplemental petition. Both seek an increase in child support based upon Antoinette’s decrease in income and Lyman’s increase in income. The supplemental petition contains no allegations concerning Lyman’s 1990 income but instead asserts that his income was higher than he had revealed before the 1989 agreed order was entered. Thus, the necessity for discovery had not changed during the nine months prior to this hearing.

When a motion for continuance has been denied by the trial court, a reviewing court will not reverse unless the trial court abused its discretion in so ruling. A critical factor is whether the party seeking the continuance acted with diligence in proceeding with the cause. (Dempsey v. Sternik (1986), 147 Ill. App. 3d 571, 498 N.E.2d 310.) A factual basis existed here for concluding that Antoinette had not acted with diligence in preparing for the June 6 hearing, and therefore, we hold that the court did not err in denying her motion for continuance.

Antoinette next contends that the trial court erroneously denied her absolute right to a voluntary dismissal of her supplemental petition when the court refused to permit her to withdraw that petition following the denial of her motion for a continuance. She relies upon section 2—1009 of the Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 2—1009), which provides:

“Voluntary dismissal, (a) The plaintiff may at any time before trial or hearing begins, upon notice to each party who has appeared or each such party’s attorney, and upon payment of costs, dismiss his or her action or any part thereof as to any defendant, without prejudice, by order filed in the cause.”

Lyman argues that once the hearing on all matters set for hearing on June 6 began, it was too late for Antoinette to dismiss her supplemental petition for modification. Clearly, the court agreed to hear each petition separately; therefore, the hearing on the supplemental petition for modification cannot be said to have begun until the court began to consider that petition. A helpful rule was propounded in In re Marriage of Fine (1983), 116 Ill. App. 3d 875, 879, 452 N.E.2d 691, where Justice Stamos, speaking for the court, said:

“[A] ‘hearing,’ being merely the equitable equivalent of a ‘trial’ as it is used in section 52(1) [now section 2—1009], does not begin until the parties begin to present their arguments and evidence to the court sitting without a jury in order to achieve an ultimate determination of their rights.”

The court went on to hold that proceedings relating to preliminary motions do not amount to commencement of a hearing on the petition. We conclude that the hearing had not begun prior to the motion to withdraw.

However, Antoinette’s claim of an absolute right to a dismissal before the hearing on her supplemental petition had begun is conditioned upon proper notice to the opposing party and payment of costs. (In re Marriage of Manns (1991), 222 Ill. App. 3d 338, 583 N.E.2d 707.) Antoinette admits that no notice was given here for the reason, she says, that events were moving too rapidly. In other words, her decision to seek a voluntary dismissal was not made until her motion for continuance was denied. Plainly, she failed to comply with the statutory requirements that would entitle her to a voluntary dismissal as a matter of absolute right under section 2—1009(a).

Her final assertion is that, if she was not entitled to a dismissal as a matter of right, the trial court nonetheless abused its discretion in refusing to permit her to withdraw her supplemental petition. She relies upon Silvestros v. Silvestros (1985) 132 Ill. App. 3d 537, 478 N.E.2d 17, where the court held that after trial had begun, plaintiff’s voluntary dismissal is addressed to the discretion of the trial court and a ruling is reversible only for abuse of that discretion. The court in Silvestros also held that an oral motion is insufficient to comply with the statutory requirement that, in such a case, a stipulation be filed with the court signed by the defendant. (Ill. Rev. Stat. 1991, ch. 110, par. 2—1009(b).) Here, too, the requirement of the opposing party’s consent was not met.

What is most significant in the case before us is the fact that Antoinette attempted to withdraw her supplemental petition solely for the purpose of circumventing the order of the court that no further continuances would be allowed. The oral motion to withdraw was accompanied by a statement that the petition would be refiled at a later date. This cause had undergone many continuances, and June 6 was the second date set for hearing with an order that no continuances would be allowed. The previous time, Antoinette’s attorney had failed to appear and obviously on June 6 was attempting to obtain a further delay. We hold that the trial court did not abuse its discretion by refusing to allow the withdrawal of the supplemental petition. To the contrary, the court is to be commended for its refusal to permit the manipulation of its rules of procedure to prolong litigation needlessly.

The orders entered in this cause in the circuit court of Will County are affirmed.

Affirmed.

STOUDER and GORMAN, JJ., concur.


author: JUSTICE GORMAN

text:
    CRAIG T. TRESCHAK, Plaintiff-Appellant, v. YORKVILLE NATIONAL BANK, Defendant-Appellee.
    Third District
    No. 3—91—0152
    Opinion filed December 3, 1992.

      Emmanuel F. Guyon, of Streator, for appellant.
    Daniel J. Kramer, of Yorkville, for appellee.
   JUSTICE GORMAN

delivered the opinion of the court:

In this action to quiet title, plaintiff Craig Treschak sought to impose a resulting trust on certain real estate to which he held title and on which defendant Yorkville National Bank had a judgment lien. The trial court denied plaintiff’s motion for summary judgment and granted defendant’s motion for summary judgment. We reverse.

In October 1990, plaintiff sued to quiet title to certain residential property in Streator, Illinois, on which defendant Yorkville National Bank had recorded a judgment lien it held against Melvin Treschak, plaintiff’s father. The judgment against Melvin resulted from his business activities and in no way involved any activity of plaintiff. Cross-motions for summary judgment were filed.

The facts set forth in the affidavits supporting plaintiff’s motion showed that several years earlier, plaintiff had been injured and received a settlement, part of which he put toward buying the subject property, which was his home. In 1984 he obtained a mortgage which was conditioned on his father, Melvin, becoming a guarantor and joint tenant because at that time plaintiff was a minor. Plaintiff made the downpayment and all further payments on the home including taxes, insurance, and maintenance. Plaintiff married in 1987 and, with his wife, has resided in the home since that time. In 1990, Melvin quit-claimed his interest in the home to plaintiff because he stated that he was only a nominal titleholder and wanted plaintiff to have complete legal title to the residence. Defendant did not controvert any of the facts set forth in the affidavits in support of plaintiff’s motion.

The trial court denied plaintiff’s motion for summary judgment and granted defendant’s motion for summary judgment.

Plaintiff appeals.

Plaintiff argues that a resulting trust arose in his favor at the time the property was purchased, thus precluding the defendant’s judgment lien from ever attaching to the property. Defendant argues that its judgment lien, which was properly recorded, cannot be retroactively affected by an action to quiet title or impose a resulting trust. Defendant also argues that the trial court lacked jurisdiction to impose a resulting trust because less than all the necessary parties were joined as defendants.

We agree with plaintiff. A resulting trust is created by law and arises from the presumed intention of the parties, distilled from their conduct; it comes into being at the instant title vests or not at all. (Anderson v. Ferris (1984), 128 Ill. App. 3d 149, 470 N.E.2d 518.) A resulting trust arises by operation of law where one person furnishes the consideration for property and the title is taken in another. (Leicht v. Quirin (1990), 200 Ill. App. 3d 1057, 558 N.E.2d 715.) The theory of a resulting trust is founded upon a natural equity that one who pays for the property should enjoy it, unless he intended by the vesting of title to confer a beneficial interest upon the grantee. (Gary-Wheaton Bank v. Meyer (1984), 130 Ill. App. 3d 87, 473 N.E.2d 548.) The burden of proof is upon the person seeking to establish the trust, and the evidence, to be effective for this purpose, must be clear, convincing and unmistakable. (Varap v. Varap (1966), 76 Ill. App. 2d 402, 222 N.E.2d 77.) The intent of the parties at the time of the conveyance is controlling. The intent may be shown by the circumstances surrounding the transaction and by parol evidence. (O’Donnell v. O’Donnell (1922), 303 Ill. 31, 135 N.E. 28; Ill. Rev. Stat. 1991, ch. 59, par. 9.) It is not a prerequisite to the creation of a resulting trust that title be placed solely in the name of the trustee. (Forlenza v. Forlenza (1970), 119 Ill. App. 2d 399, 256 N.E.2d 42.) A resulting trust can arise where title is placed in the names of the beneficiary and trustee as joint tenants. (Abraham v. Abraham (1949), 403 Ill. 312, 86 N.E.2d 224; Kane v. Johnson (1947), 397 Ill. 112, 73 N.E.2d 321.) Where a deed absolute in terms and without condition or reservation conveys real estate to two persons as joint tenants, the language of the deed is sufficient to show an express intent to convey both the legal title and the beneficial interests of the two grantees as joint tenants, but if the purchase price was paid by only one of such grantees, this indicates an intention that the grantee paying the consideration be the only person beneficially interested in the property, and under such facts the expressed intent as shown by the deed must give way to the rule of equity that protects the party paying the purchase price by raising a resulting trust in his favor. (Prassa v. Corcoran (1962), 24 Ill. 2d 288, 181 N.E.2d 138.) If property is conveyed to a joint tenant family member, there is a presumption that a gift is being made of a one-half interest in the property. This presumption is rebuttable by clear, convincing, and unmistakable evidence that no gift was intended. Forlenza, 119 Ill. App. 2d 399, 256 N.E.2d 42.

Applying the above standards to the instant case, we are led to the conclusion that a resulting trust arose in favor of the plaintiff. The deed conveyed the property to the plaintiff and Melvin as joint tenants, but the plaintiff furnished all of the consideration. The facts are not disputed by the defendant. The presumption that would arise that a gift was intended is rebutted by the agreement of all the parties in this case that it was intended at the time of purchase that the plaintiff would have the entire equitable ownership of the property. This intent is controlling and leads to the conclusion that a resulting trust in favor of the plaintiff arose at the instant the property was purchased. The relevant inquiry in this case is what interest the father had in the property at the time the bank obtained a judgment lien. The law of Illinois makes it clear that a resulting trust had arisen in favor of the plaintiff at the time of purchase.

Moreover, although record title showed plaintiff and his father holding the property as joint tenants, our supreme court has made it clear that resulting trusts are outside the scope of section 30 of the Conveyances Act (the Act) (Ill. Rev. Stat. 1991, ch. 30, par. 29). The supreme court held in East St. Louis Lumber Co. v. Schnipper (1923), 310 Ill. 150, 141 N.E. 542, that section 30 does not require re sulting trusts to be recorded to be valid as against subsequent judgment creditors. The supreme court pointed out that the Act did not apply to resulting trusts because the existence of such trusts need not be evidenced by writing and they are outside the scope of the recording laws. The court stated:

“[Tjhere is no requirement that an equitable owner, by virtue of a resulting trust, shall proclaim to the world his ownership for the public information nor that a trustee shall be labeled for like purpose. The ruling of the chancellor that the real estate of the complainant could be taken for the debt of Reis because the public had no notice of the resulting trust was not in accordance with the law.” Schnipper, 310 Ill. at 158, 141 N.E. at 545.

The court in Schnipper also held that a judgment lien did not attach to a resulting trust because such a lien only attaches to whatever interest the debtor has in the property. The court stated that “the lien of a judgment or execution is limited to the actual interest the debtor has in the property and does not attach to a mere naked legal estate when the entire equitable estate is vested in some third person.” (Schnipper, 310 Ill. at 156, 141 N.E. at 544.) The supreme court held in that case that the complainant should have been allowed to prove the existence of a resulting trust at the trial court level, and if the complainant was successful in proving such a resulting trust then that would render the lien of judgment void.

Defendant also asserts that the trial court lacked jurisdiction to impose a resulting trust because Melvin was a necessary party, but was not joined. A necessary party is one whose presence in the suit is required for any of three reasons: (1) to protect an interest which the absentee has in the subject matter of the controversy which would be materially affected by a judgment entered in his absence; or (2) to reach a decision which will protect the interests of those who are before the court; or (3) to enable the court to make a complete determination of the controversy. (Burt v. Board of Education of Coal City Community Unit School District No. 1 (1985), 132 Ill. App. 3d 393, 395-96, 477 N.E.2d 247, citing Lerner v. Zipperman (1979), 69 Ill. App. 3d 620, 387 N.E.2d 946.) In the instant case, Melvin filed a quit claim deed to the property on September 13, 1990. Plaintiff’s suit was filed October 1, 1990. The bare legal title held by Melvin was thus conveyed to plaintiff before suit was filed, thereby vesting full legal and equitable title in plaintiff. Melvin was not a necessary party to this suit because he had no legal or equitable interest in the property. Moreover, Melvin’s presence was not needed to enable the court to make a decision protecting the interests of plaintiff or defendant here. Finally, his presence was not needed to enable the court to make a complete determination of the controversy. Therefore, the trial court had jurisdiction to impose a resulting trust.

For the foregoing reasons, we reverse the judgment of the circuit court of La Salle County in favor of defendant and direct the entry of summary judgment for plaintiff.

Reversed.

STOUDER and SLATER, JJ., concur.


author: JUSTICE McCUSKEY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. GREGORY D. JOHNSON, Defendant-Appellee.
    Third District
    No. 3-92-0214
    Opinion filed October 27, 1992.

      Marshall E. Douglas, State’s Attorney, of Rock Island (John X. Breslin and Lawrence Michael Kaschak, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Thomas A. Karalis and Verlin R. Meinz, both of State Appellate Defender’s Office, of Ottawa, for appellee.
   JUSTICE McCUSKEY

delivered the opinion of the court:

The defendant, Gregory D. Johnson, was charged by information with the offenses of unlawful possession with intent to deliver a substance containing cocaine (Ill. Rev. Stat. 1991, ch. 56½, par. 1401(a)(2)(A)) and resisting a peace officer (Ill. Rev. Stat. 1991, ch. 38, par. 31—1).

During the execution of a search warrant which authorized the search of a residence, the defendant was searched and cocaine was found on his person. The defendant filed a motion to suppress evidence and a motion challenging the search warrant based upon Franks v. Delaware (1978), 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674.

The trial court granted the defendant’s motions and ordered the evidence suppressed. The State filed a timely notice of appeal and the requisite certificate of impairment.

The State claims the trial court erred: (1) when it granted the defendant’s motion to suppress because the complaint for a search warrant and the supporting affidavit were sufficient to establish probable cause; and (2) in suppressing the evidence based upon its finding that the search warrant was invalid pursuant to Franks.

We agree the trial court erred. Therefore, we reverse and remand because we find: (1) the search warrant affidavit was sufficient to establish probable cause; and (2) the defendant was not entitled to a Franks hearing.

A search warrant was issued on November 11, 1991, authorizing a search of the premises located at 1309 14th Street in Rock Island. The affidavit of Alban Reid was attached to the complaint for the warrant. The affidavit stated that Reid was a police officer assigned to investigate the illegal sale of drugs; that John Doe, a confidential source, had completed numerous controlled buys of cocaine for the Rock Island police department and was a reliable source; that Doe, within the last 48 hours, had observed an amount of cocaine inside the address listed, which the affidavit stated was the residence of the defendant; and that, also within the last 48 hours, Doe had walked into the living room area of the residence, had spoken with the defendant and had observed a quantity of cocaine packaged for sale. The affidavit additionally stated that, during a conversation, Doe learned from the defendant that a quantity of cocaine was stored in the trunk of the defendant’s car, which was located at the residence.

At the defendant’s preliminary hearing on November 19, 1991, Officer Leo Hoogerwerf testified he participated in the execution of the search warrant on November 11, 1991. He was responsible for watching the front door of the residence while other police officers entered the rear door. Hoogerwerf saw the defendant through a window on the north side of the residence. He observed the defendant put a bag of white powder into his mouth. Hoogerwerf also saw the defendant eat the white powder. After the defendant saw the officer, he ran out the front door and was caught outside the residence by the police. The bag the defendant put in his mouth was found to contain 15.4 grams of cocaine. A bag found in the defendant’s sock contained 4.9 grams of cocaine. Finally, .5 grams of cocaine was found in the defendant’s vehicle.

The defendant filed a motion to suppress the evidence. The defendant argued, among other things, that the search warrant was insufficient on its face because there was no probable cause for the issuance of the warrant. The defendant also argued that the complaint for search warrant and the warrant itself were standardized forms which were not based upon specific facts.

The defendant also filed a Franks motion, which argued the material contained in Reid’s affidavit was untrue. The defendant’s own affidavit was attached to his Franks motion. The defendant stated he had resided in the City of Silvis since September 13, 1991. The defendant also stated he was not the legal title holder of the premises listed in the warrant and did not have a leasehold interest in the premises. Defendant further stated in his affidavit:

“[A]t no time during the month of November 1991, did Affiant ever have anyone in the living room of the premises known as 1309—14th Street, Rock Island, Illinois, with a quantity of cocaine packaged for sale being present.
At no time in the month of November, 1991, did Affiant ever tell anyone that a quantity of cocaine was stored in the trunk area of his vehicle.”

A hearing on the defendant’s motions was held on February 26, 1992. The State argued the defendant did not have standing to challenge the search warrant pursuant to Franks because he stated in his affidavit that he did not have a possessory interest in the premises. We disagree.

The defendant testified Angilla Victor owned the premises located at 1309 14th Street. The defendant knew Victor for about five or six years and was her friend. The defendant stated that in November 1991, he kept tools, which he needed as a carpenter and painter, at Victor’s premises with her permission. The defendant also kept a few pieces of furniture there. The defendant stated he had a telephone at the Victor premises and that he received telephone calls there in connection with his business as a self-employed carpenter. No one lived at the Victor premises after August 1991. The defendant further testified he did not stay overnight there. Based upon the testimony, the court found the defendant did not have standing to challenge the search of the premises. However, the court did find the defendant had standing to challenge the search of his person and his vehicle. At that point, the State agreed that the cocaine found in the vehicle should be suppressed.

A Franks hearing was then held. The defendant testified consistently with his affidavit. Reid testified the information contained in his affidavit was true and accurate. Reid also stated the affidavit for search warrant was prepared from a standardized form and everything contained in the affidavit had been given to him by the confidential source.

At the conclusion of the Franks hearing, the court stated it was suppressing all of the evidence found on defendant’s person. The court later filed a 12-page memorandum opinion and order explaining its ruling. In the memorandum, the court first addressed the standing issue. The court found the defendant did not occupy the premises listed in the warrant. Therefore, the court concluded the defendant had no expectation of privacy in the premises and no standing to object to the search of the premises. We disagree.

However, the court did find the defendant had standing to challenge the search warrant because the warrant authorized the search of his person. Because of our analysis and disposition, we find it unnecessary to address the court’s finding on this issue.

The court next found the defendant’s affidavit was sufficient to make a preliminary showing under Franks that false statements were used knowingly or recklessly in order to obtain the search warrant. The court noted the defendant’s affidavit was in direct contradiction with Reid’s affidavit. The court said it had “serious doubts that a drug dealer would tell anyone about where he keeps his store of drugs” and doubted “any police officer seeking truth would find such a statement any more plausible than I do.” The court noted the confidential source was not under oath when he made his alleged statements to Reid. In passing, the court commented that it believed the police work was “shoddy.”

Based upon the testimony presented at the hearing, the court concluded that a Franks violation had occurred. The court relied upon the fact the defendant was the only witness to testify who had personal knowledge of the events which occurred between the defendant and the confidential source. The court found the defendant to be a credible witness. The court stated it did not believe Reid’s testimony. The court also commented that Reid had been investigated in an unrelated case “relative to the filing of a false affidavit to obtain a Search Warrant.”

We conclude that our relevant inquiry on review is whether the defendant has standing to raise a fourth amendment issue regarding the search warrant. In order to have standing, the defendant must establish he has a legitimate expectation of privacy in the searched premises. (See Minnesota v. Olson (1990), 495 U.S. 91, 96-100, 109 L. Ed. 2d 85, 93-95, 110 S. Ct. 1684, 1687-90; People v. Bass (1991), 220 Ill. App. 3d 230, 241-43, 580 N.E.2d 1274, 1282-83; People v. Williams (1989), 186 Ill. App. 3d 467, 471-72, 542 N.E.2d 484, 486-87.) The fourth amendment protection against unreasonable government search and seizure extends only to individuals who have a reasonable expectation of privacy in the invaded place. Rakas v. Illinois (1978), 439 U.S. 128, 143, 58 L. Ed. 2d 387, 401, 99 S. Ct. 421, 430.

The relevant factors necessary to determine whether a reasonable expectation of privacy exists include whether a defendant (1) was legitimately present in the area searched, (2) had a possessory interest in the area or property seized, (3) had used the area searched or property seized, (4) had the ability to control or exclude others from using the property, and (5) had a subjective expectation of privacy in the property. People v. Johnson (1986), 114 Ill. 2d 170, 191-92, 499 N.E.2d 1355, 1364; People v. Delgado (1992), 231 Ill. App. 3d 117, 119, 596 N.E.2d 149, 151.

Both Minnesota v. Olson (1990), 495 U.S. 91, 98, 109 L. Ed. 2d 85, 94, 110 S. Ct. 1684, 1689, and People v. Olson (1990), 198 Ill. App. 3d 675, 681-82, 556 N.E.2d 273, 276-77, held that an overnight guest has a legitimate expectation of privacy in the premises entered. However, the court in People v. Bass (1991), 220 Ill. App. 3d 230, 241-43, 580 N.E.2d 1274, 1282-83, concluded that a person who is a guest in an apartment for only a brief period of time does not have standing to challenge a warrant allowing entry into the apartment.

The situation in the instant appeal falls in between the factual circumstances of the three cases cited above. Here the defendant testified he did not stay overnight at the residence. However, we find the defendant was more than a guest for a brief period because, with the permission of the owner, he stored furniture and tools at the residence and received telephone calls there. The defendant’s testimony indicated he had frequent and ready access to the residence. Based upon these facts, we conclude the defendant did have a legitimate expectation of privacy in the premises because of the storage of his possessions in the residence and his access to the property. (See People v. Stachelek (1986), 145 Ill. App. 3d 391, 401, 495 N.E.2d 984, 990 (indicating the presence of personal belongings in an apartment may be adequate to create a legitimate expectation of privacy in the apartment); 4 W. LaFave, Search & Seizure §11.3(c), at 303 (2d ed. 1987) (“a defendant has standing if he is specifically permitted by the person with the possessory interest in the premises to store some specified effects there and is also permitted to enter the premises to check on those effects from time to time”).) Accordingly, we find the defendant did have standing to challenge the validity of the search warrant.

The State argues the trial court erroneously suppressed the evidence. We agree. We initially note that a reviewing court will not disturb a trial court’s ruling on a motion to suppress unless it is manifestly erroneous. People v. Adams (1989), 131 Ill. 2d 387, 400, 546 N.E.2d 561, 567.

In the instant appeal, the trial court determined Reid’s affidavit was not sufficient to establish probable cause. The trial court found: (1) that the affidavit was based upon a standardized form; (2) the reliability of the source was not adequately demonstrated because the affidavit did not state whether information previously received from the source led to arrests or convictions; and (3) the source’s story was implausible. The defendant argues this ruling was correct. Relying on People v. Palanza (1978), 55 Ill. App. 3d 1028, 371 N.E.2d 687, the defendant points out that no facts were disclosed in the affidavit which indicate how the source knew the substance was cocaine.

In reviewing the sufficiency of a search warrant complaint, it is only the probability, and not a prima facie showing, of criminal activity which is the standard for probable cause. (People v. Stewart (1984), 104 Ill. 2d 463, 475, 473 N.E.2d 1227, 1232.) Affidavits presented in support of a search warrant must be tested in a commonsense and realistic, and not an unduly technical, manner. (People v. Lipscomb (1991), 215 Ill. App. 3d 413, 428, 574 N.E.2d 1345, 1354.) Probable cause questions are resolved based upon the “totality of the circumstances” test set forth in Illinois v. Gates (1983), 462 U.S. 213, 76 L. Ed. 2d 527, 103 S. Ct. 2317.

Reid’s affidavit stated the confidential source was reliable and had completed numerous controlled buys of cocaine. It also stated the source had recently seen cocaine packaged for sale at the residence, in the presence of the defendant. Based upon the totality of the circumstances, we conclude the affidavit was sufficient for a determination of probable cause.

The trial court’s reasons for finding the affidavit insufficient do not survive our scrutiny. The use of standardized language in an affidavit does not affect its sufficiency. (People v. Hodges (1987), 159 Ill. App. 3d 38, 43, 512 N.E.2d 19, 23; see also People v. Cordero (1991), 214 Ill. App. 3d 1007, 1012-13, 574 N.E.2d 800, 804; People v. Elworthy (1991), 214 Ill. App. 3d 914, 923, 574 N.E.2d 727, 734.) Also, a statement that the confidential source previously participated in controlled buys of drugs may be sufficient to establish the veracity of the source even if the statement does not say that arrests or convictions resulted. See People v. Thomas (1975), 62 Ill. 2d 375, 381-82, 342 N.E.2d 383, 386-87; People v. Dawe (1983), 115 Ill. App. 3d 990, 991-92, 451 N.E.2d 32, 34.

We find the defendant’s reliance on Palanza is misplaced. The Supreme Court in Gates specifically criticized Palanza as an example of a court’s excessively technical dissection of an informant’s tip. Gates, 462 U.S. at 234 n.9, 76 L. Ed. 2d at 545 n.9, 103 S. Ct. at 2330 n.9.

We also agree with the State’s contention the trial court erred when it suppressed the evidence based upon Franks. We find the defendant did not make the necessary preliminary showing to be entitled to a Franks hearing. In Franks, the Supreme Court recognized a defendant has a limited right to challenge the veracity of the affidavit supporting a facially valid warrant. A defendant is entitled to a Franks hearing only when he “makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit,” and that the allegedly false statement was necessary to the finding of probable cause. (Franks, 438 U.S. at 155-56, 57 L. Ed. 2d at 672, 98 S. Ct. at 2676; see also People v. Edwards (1991), 144 Ill. 2d 108, 131-32, 579 N.E.2d 336, 344.) A defendant’s unsubstantiated denial of statements contained in the affidavit is not enough to make the necessary preliminary showing. People v. Lucente (1987), 116 Ill. 2d 133, 151-52, 506 N.E.2d 1269, 1276; People v. Maiden (1991), 210 Ill. App. 3d 390, 400-01, 569 N.E.2d 120, 127; People v. Torres (1990), 200 Ill. App. 3d 253, 263, 558 N.E.2d 645, 652.

In the instant appeal, the defendant’s affidavit was clearly nothing more than a denial of the statements contained in Reid’s affidavit. The court erroneously concluded that a substantial preliminary showing had been made because the confidential informant’s statements to Reid were not made under oath and because, in the court’s opinion, one of the statements was implausible. It is well-settled law that a police officer’s statements made in an affidavit for search warrant may be based upon hearsay, including an informant’s tip. (People v. Canet (1991), 218 Ill. App. 3d 855, 865, 578 N.E.2d 1146, 1153.) The State is generally not required to disclose the identity of the informant. (People v. Elworthy (1991), 214 Ill. App. 3d 914, 921, 574 N.E.2d 727, 733.) The Supreme Court in Franks specifically stated that the “deliberate falsity or reckless disregard whose impeachment is permitted today is only that of the affiant, not of any nongovernmental informant.” (Franks, 438 U.S. at 171, 57 L. Ed. 2d at 682, 98 S. Ct. at 2684; see also Lucente, 116 Ill. 2d at 148, 506 N.E.2d at 1275.) Therefore, the fact the confidential source was not under oath is not relevant. We note it is not the confidential source’s veracity which is at issue. The issue for review is whether Reid made false statements knowingly or with reckless disregard for the truth.

The defendant’s mere denials of Reid’s statements are not sufficient to entitle him to a Franks hearing. We note there was evidence before the trial court to support a finding that the defendant’s affidavit was not credible. At the preliminary hearing held in November 1991, the defendant informed the court that his address was 1309 14th Street. However, this statement was contradicted by the defendant’s affidavit, which states that he resided in Silvis and did not rent or own the premises at 1309 14th Street.

We caution that a trial court’s ruling should only be based upon the evidence presented. We note the comments set forth in the court’s memorandum opinion strongly indicate the court had a predisposition in this case which was based, at least in part, on matters outside the record.

For the reasons indicated above, we find that no Franks hearing was warranted in this cause. We conclude the defendant’s affidavit was insufficient to make a preliminary showing that false statements were either knowingly or recklessly included in the search warrant affidavit.

Accordingly, we reverse the order of the circuit court of Rock Island County .and remand the cause for further proceedings consistent with this opinion.

Reversed and remanded.

GORMAN and HAASE, JJ., concur.


author: JUSTICE SLATER

text:
    KEITH WILLIAM GAINEY, Petitioner-Appellee, v. DEANA LEE GAINEY, Respondent-Appellant.
    Third District
    No. 3—92—0316
    Opinion filed October 27, 1992.

      Bernard Shapiro, of Prairie State Legal Services, of Rockford, and Prairie State Legal Services, Inc., of Rock Island (Reginald D. Jarrell, of counsel), for appellant.
    Jack Schwartz, of Rock Island, for appellee.
   JUSTICE SLATER

delivered the opinion of the court:

Deana Lee Gainey and Keith William Gainey were divorced in Escambia County, Florida, on October 9, 1989. Deana was awarded custody of their three minor children, who are now aged 10, 13 and 15. On March 4, 1991, Deana contacted Keith and asked him to come to Florida to take the children back to Illinois so that Deana could seek mental health treatment. No modification was made to the Florida judgment, and it was Deana’s understanding that Keith would return the children to her at the end of the 1990-91 school year.

When Keith did not return the children, Deana instituted contempt proceedings against him in Florida. Keith responded by filing a petition for assumption of custody jurisdiction and a motion for custody trader the Uniform Child Custody Jurisdiction Act (the Act) (Ill. Rev. Stat. 1991, ch. 40, par. 2101 et seq.), together with a motion for an ex parte temporary restraining order. The Rock Island trial court granted the temporary restraining order and on April 23, 1991, entered an order assuming jurisdiction of the minor children under the Act.

Deana entered a special appearance in the Rock Island circuit court for the purpose of challenging subject matter jurisdiction in Illinois. On March 27, 1992, Deana’s motion to vacate the order assuming custody jurisdiction was denied. Deana appeals, and we reverse.

Deana argues that the Illinois circuit court erred in its determination that section 4(a)(2) of the Act (Ill. Rev. Stat. 1991, ch. 40, par. 2104(a)(2)) conferred jurisdiction to make a child custody determination. She correctly points out that section 7(a) (Ill. Rev. Stat. 1991, ch. 40, par. 2107(a)) requires a court of this State not to exercise its jurisdiction under the Act if at the time of filing the petition a proceeding concerning custody was pending in another State exercising jurisdiction substantially in conformity with the Act, unless the proceeding in the other State is stayed by the court of the other State. Florida has adopted the Act (Fla. Stat. Ann. §61.1302 et seq. (West 1985)), and custody proceedings were in progress in Florida at the time the Illinois court assumed jurisdiction. Contempt proceedings against Keith based on his failure to return the children were pending at the very time the circuit court in Illinois assumed jurisdiction. The Florida court on August 29, 1991, ordered Keith in contempt for his failure to return the children and specifically retained jurisdiction over the custody proceeding. It is our opinion that since the Florida court was exercising jurisdiction in conformity with the Act, the Rock Island circuit court improperly found that it had jurisdiction. Section 7(a) of the Act required Illinois to decline jurisdiction under the facts of this case once the circuit court had been apprised of the Florida proceedings.

In Jennings v. Jennings (1985), 133 Ill. App. 3d 753, 479 N.E.2d 419, the parties were divorced in Kansas and granted joint custody of their two daughters. The father was awarded specific visitation with the children, who physically resided in Illinois with their mother. The mother filed a motion for modification of visitation in the Kansas district court and later amended that motion by requesting sole custody. Six days later she filed in St. Clair County, Illinois, a petition for registration of the Kansas decree and a petition for modification of its custody provisions. The father filed a special appearance in Illinois disclosing the existence of the Kansas proceedings and challenging jurisdiction. The appellate court concluded that the district court in Kansas had acquired jurisdiction over the modification action and that section 7(a) of the Act required the Illinois courts to decline jurisdiction because of the pending modification proceedings in Kansas.

Keith argues that the Illinois court has jurisdiction on an emergency basis under section 4(a)(3)(ii) (Ill. Rev. Stat. 1991, ch. 40, par. 2104(a)(3)(ii)). He asserts that Deana’s mental stability jeopardizes the safety of the children in that she is recovering from suicidal depression. Section 4(a)(3) does not grant the Illinois court authority to modify the previous Florida custody judgment. This emergency jurisdiction provision is meant solely to prevent irreparable and immediate harm to children, and absent other jurisdictional prerequisites, does not confer on the State exercising emergency jurisdiction the authority to make a permanent custody determination. Hache v. Riley (1982), 186 N.J. Super. 119, 451 A.2d 971; accord State in Interest of D.S.K. (Utah App. 1990), 792 P.2d 118.

Keith cites In re Marriage of Goodwin (1982), 104 Ill. App. 3d 790, 433 N.E.2d 310, for the position that the best interests of the children should be the overriding consideration for the determination of which State should have jurisdiction. However, in Goodwin the mother had removed the child and herself from Illinois to Florida without the court’s permission. Noting that one of the purposes of the Act was to deter such unilateral action by a parent, the trial court was held to have properly exercised jurisdiction over the motion for modification. The clear intention of the legislation would have been subverted and the mother would have profitted from her own misbehavior if the Illinois court could not retain jurisdiction. In similar fashion, to deny the Florida court’s jurisdiction in the pending custody dispute would contravene the legislative intent of both Florida and Illinois.

The circuit court of Escambia County, Florida, had continuing jurisdiction over the custody of the three minor children of the parties to this action. The circuit court’s order denying Deana’s motion to decline jurisdiction is reversed, the ex parte temporary injunction is dissolved and the order assuming jurisdiction pursuant to the Act is vacated.

Reversed and vacated.

McCUSKEY and STOUDER, JJ., concur.


author: JUSTICE HAASE

text:
    ARNULFO SANCHEZ, JR., et al., Plaintiffs-Appellants, v. FIRESTONE TIRE AND RUBBER COMPANY et al., Defendants (Farm and Fleet, Defendant-Appellee).
    Third District
    No. 3-91-0914
    Opinion filed October 20, 1992.
    Louis E. Olivero & Associates, of Peru (Louis E. Olivero, of counsel), for appellants.
    James E. Babcock, of Wright & Babcock, Ltd., of Joliet (William G. Troka, of counsel), for appellee.
   JUSTICE HAASE

delivered the opinion of the court:

The plaintiffs, Amulfo Sanchez, Jr., Sergio Sanchez, Martin de Santiago, and Gil Marquez, brought a negligence and products liability action against the defendants, Firestone Tire & Rubber Co., the Goodyear Tire & Rubber Co., and Farm & Fleet. Defendants Firestone and Goodyear were subsequently dismissed from the case and are not involved in this appeal. The trial court granted defendant Farm & Fleet’s motion for summary judgment. The plaintiffs appeal from that decision.

The record reveals that sometime in August 1984, plaintiffs Amulfo Sanchez, Jr., and Sergio Sanchez purchased a Goodyear inner tube from a Goodyear store. They also purchased two Firestone tires from Farm & Fleet in Ottawa, Illinois. Several days later, the two returned to the Ottawa Farm & Fleet and had the service department install the Firestone tires and the inner tube on the rear rims of their 1974 Ford pick-up truck. Through the rest of August and most of September, Amulfo drove the track on a regular basis in La Salle County, Hlinois. Around September 30, 1984, Amulfo and Sergio drove the track from Peru, Hlinois, to northern Mexico, where they picked up plaintiffs Martin de Santiago and Gil Marquez. Thereafter, an accident occurred in which all the plaintiffs were injured. The plaintiffs alleged that the accident occurred when the recently purchased Goodyear inner tube lost air pressure and exploded, causing the vehicle to lose control and overturn. The inner tube was not found following the accident and was not produced at trial.

The plaintiffs’ expert witness, Dr. Oscar E. Kurt, testified in his deposition that he examined the tire and rim involved in the accident. He noted that the tire and rim did not have any defects. From his examination, he concluded that the tire lost air pressure either because the installer pinched the tube during installation, causing it to leak, or “the slit side lock ring on the wheel came out of place permitting the bead to come off that side of the rim, and with an exposed bead, caused the tire to blow out and the vehicle to roll over.” Dr. Kurt admitted that in the only other pinched inner tube situation that he was personally aware of a track tire deflated after only 17 miles of travel.

On appeal, the plaintiffs argue that the trial court erred in granting summary judgment for the defendant based on the unavailability of the inner tube.

A motion for summary judgment should be granted if the pleadings, depositions, affidavits, and admissions on file show that there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. (Ill. Rev. Stat. 1991, ch. 110, par. —1005(c).) In ruling on a motion for summary judgment, the trial court should construe the pleadings, affidavits, exhibits and depositions most strictly against the moving party and most liberally in favor of the opponent. Staton v. Amax Coal Co. (1984), 122 Ill. App. 3d 631, 461 N.E.2d 612.

In a products liability case, the plaintiff must prove that his injury or damage resulted from a condition of the product, that the condition was an unreasonably dangerous one, and that the condition existed at the time it left the manufacturer’s control. (Suvada v. White Motor Co. (1965), 32 Ill. 2d 612, 210 N.E.2d 182; Stewart v. B.F. Goodrich Co. (1987), 153 Ill. App. 3d 1078, 506 N.E.2d 783.) These elements may be proven inferentially, by either direct or circumstantial evidence. (Mateika v. La Salle Thermogas Co. (1981), 94 Ill. App. 3d 506, 418 N.E.2d 503.) Proper circumstantial evidence includes either proof that tends to exclude other extrinsic causes or expert testimony that the product was defective. (Mullen v. General Motors Corp. (1975), 32 Ill. App. 3d 122, 366 N.E.2d 388.) However, liability in a products liability action cannot be based on mere speculation, guess, or conjecture, and the circumstances shown must justify an inference of probability as distinguished from mere possibility. Mateika v. LaSalle Thermogas Co. (1981), 94 Ill. App. 3d 506, 418 N.E.2d 507.

Although at the summary judgment stage the plaintiff is not normally required to prove his case, he nevertheless must present some facts to support the elements of his claim. (Stewart v. B.F. Goodrich Co. (1987), 153 Ill. App. 3d 1078, 506 N.E.2d 783.) The requirement that the plaintiff establish the precise cause of his injury may, at times, be excused in an action grounded on strict liability in tort; however, the plaintiff must establish some credible basis for the reasonable inference that a condition of the product caused the injury. Stewart v. B.F. Goodrich Co. (1987), 153 Ill. App. 3d 1078, 506 N.E.2d 783.

In Shramek v. General Motors Corp. (1966), 69 Ill. App. 2d 72, 216 N.E.2d 244, the plaintiff purchased a new automobile which had new tires. One of the tires blew up after it had been driven 10,000 miles eight months after it was purchased. The blown-out tire was unavailable. The Shramek court did not permit the case to go to the jury. It noted that it would be impossible for the plaintiff to prove his case, either by direct or circumstantial evidence, without the tire itself. The court concluded that a determination of why the tire blew out could only be left to pure speculation, and where the evidence presented indicates only a mere possibility that the defendant was negligent, the case must be removed from the jury’s consideration.

The plaintiffs argue that Shramek is distinguishable from the present case because here the plaintiff introduced expert testimony.

We disagree. Shramek is indistinguishable from the present case. While we are aware that no expert testimony was presented in Shramek, we do not find that the expert testimony in the present case indicated anything more than a mere possibility that the inner tube was improperly installed. It was undisputed that the plaintiffs’ expert never examined the inner tube or any photographs thereof. Moreover, the plaintiffs drove with the inner tube in question for over 3,000 miles before the accident occurred in Mexico. Under the circumstances, we find that the trial court properly granted the defendant’s motion for summary judgment.

The judgment of the circuit court of La Salle County is affirmed.

Affirmed.

McCUSKEY and STOUDER, JJ., concur.


text:
    TRACY KELCH, Plaintiff-Appellee, v. LOUIS L. WATSON et al., Defendants-Appellants.
    Third District
    No. 3-92-0037
    Opinion filed November 4, 1992.

      David B. Collins, of Quinn, Johnston, Henderson & Pretorius, of Peoria (Murvel Pretorius, Jr., of counsel), for appellants Louis L. Watson and Orthopedic Surgery Group.
    Susan H. Brandt, of Livingston, Barger, Brandt & Schroeder, of Bloomington, for appellant T.V. McGuffin.
    Theodore J. Bednarek, of Troha, Troha & Bednarek, of Joliet, for appellee.
   JUSTICE McCUSKEY

delivered the opinion of the court:

Defendants appeal the denial of their motions to dismiss plaintiff’s complaint. We granted leave to appeal pursuant to Supreme Court Rule 308 (134 Ill. 2d R. 308) to consider the following question:

“Where a plaintiff stipulates, even though inadvertently, pursuant to [Ill. Rev. Stat. 1989,] ch. 110, par. 2—1009, to dismiss her action and the order based upon said stipulation is entered, does the court have jurisdiction, upon motion made within thirty days and pursuant to stipulation of the parties, to thereafter vacate the order of dismissal and reinstate said action; and if so, can plaintiff thereafter voluntarily dismiss and then file a new action pursuant to Ill. Rev. Stat. 1989, ch. 110, par. 13-217.”

We conclude that defendants waived the question of the trial court’s jurisdiction to vacate the dismissal order and reinstate the action by their continued participation in the proceedings following plaintiff’s voluntary dismissal. Accordingly, we affirm the denial of defendants’ motions to dismiss.

Plaintiff, Tracy Keleh, filed a complaint in July 1985 against Proctor Community Hospital (Proctor) and defendant-appellants Louis L. Watson, M.D., T.V. McGuffin, M.D., and Orthopedic Surgery Group, S.C. (defendants). Two years later, plaintiff and Proctor prepared a stipulation for dismissal, purportedly to operate only in favor of Proctor. The order entered by the trial court, however, inadvertently dismissed the entire action.

Within 30 days, plaintiff moved to vacate the dismissal order and reinstate the action against all defendants but Proctor. The trial court granted the motion and entered an “agreed” order in July 1987.

In November 1989, the trial court granted plaintiff’s motion to voluntarily dismiss the case. In November 1990, within one year of the voluntary dismissal, plaintiff filed a new action against defendants.

Defendants contended in motions to dismiss that plaintiff had improperly refiled her action twice, contrary to section 13—217 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 13—217).

. The trial court denied defendants’ motions. The court found that plaintiff’s November 1990 filing was not an improper second refiling under section 13—217. The court determined that the inadvertent 1987 dismissal “became a nullity” upon its vacatur, so that the immediately reinstated cause of action was not a (first) refiling. Plaintiff’s November 1990 complaint was then properly and timely filed trader section 13—217. The trial court also found that defendants revested the court with jurisdiction by consenting to the vacatur of plaintiff’s inadvertent dismissal and by continuing to participate in court proceedings.

Defendants maintain on appeal that following entry of an order granting a voluntary dismissal, a court loses jurisdiction to reinstate the same cause of action unless leave to reinstate was granted in the order of dismissal. Defendants maintain that since leave to reinstate the action was not granted plaintiff in the dismissal order, plaintiff could only file a new action. Such a new action would be considered a first refiling under section 13—217. Plaintiff’s 1989 voluntary dismissal and 1990 refiling, then—according to defendants—was an improper second refiling under section 13—217. Plaintiff counters that the trial court properly denied defendants’ motions to dismiss because defendants submitted themselves to the continuing jurisdiction of the court by consenting to vacatur of the dismissal order and by participating in all future aspects of the litigation. The voluntary dismissal and refiling was only a first refiling because the vacatur order merely reinstated the inadvertently dismissed action.

Plaintiff’s motion to vacate the inadvertent order of dismissal was brought pursuant to section 2—1301(e) of the Civil Practice Law, which by its very language vests discretion in the trial court to set aside a final order or judgment. (Ill. Rev. Stat. 1989, ch. 110, par. 2—1301(e).) The effect of a vacated order is that of a void order. Black’s Law Dictionary defines “vacate” as follows: “[t]o annul; to set aside; to cancel or rescind. To render an act void; as, to vacate an entry of record, or a judgment.” (Black’s Law Dictionary 1548 (6th ed. 1990).) The substantive effect of the order vacating the allegedly inadvertent voluntary dismissal was to restore the parties to their original status in the case; the vacatur operated as if the voluntary dismissal had never been entered.

The trial court clearly had jurisdiction to vacate the inadvertent dismissal order. We conclude that the order vacating the inadvertent dismissal of plaintiff’s complaint rendered the dismissal order nugatory and returned the parties to the status they held prior to entry of the dismissal order. Therefore, plaintiff’s later voluntary dismissal and refiling was not an improper second refiling under section 13—217. See George W. Kennedy Construction Co. v. Industrial Comm’n (1987), 152 Ill. App. 3d 114, 119-20, 503 N.E.2d 1169, 1173-74.

Defendants rely upon the rule of Bettenhausen v. Guenther (1944), 388 Ill. 487, 58 N.E.2d 550, and Weisguth v. Supreme Tribe of Ben Hur (1916), 272 Ill. 541, 112 N.E. 350, that once a trial court enters an order granting a voluntary dismissal, the court no longer retains jurisdiction to reinstate the cause of action unless leave to reinstate was granted at the time the order of dismissal was entered. Bettenhausen, 388 Ill. at 489, 58 N.E.2d at 551-52; Weisguth, 272 Ill. at 543, 112 N.E. at 351.

We find Bettenhausen and Weisguth distinguishable. First, the plaintiff in the instant case never intended to abandon her claim against all the defendants. This contrasts with the rationale behind the rule, as stated in Bettenhausen:

“[I]f a plaintiff, by his deliberate and voluntary act, secures a dismissal of his suit, he must be held to have anticipated the effect and necessary results of his action and should not be restored to the position and the rights which he voluntarily abandoned.” (Emphasis added.) Bettenhausen, 388 Ill. at 489, 58 N.E.2d at 552.

The plaintiff here did not “deliberately] and voluntar[il]y act” to “secure[ ] a dismissal of [her] suit,” at least as to all defendants. It would be inconsistent with the reasoning stated by our supreme court in Bettenhausen to conclude that the plaintiff “anticipated the effect and necessary results of [her] action” and to hold that she “should not be restored to the position and *** rights” she previously held. Bettenhausen, 388 Ill. at 489, 58 N.E.2d at 552.

Second, defendants forfeited their right to complain of the court’s reinstatement of plaintiff’s cause of action by appearing generally after vacatur of the order of dismissal. Defendants, by their continued appearances in the action, conferred upon the court the power to proceed and waived their right to object to reinstatement of the cause. In Bettenhausen, the court specifically noted that the defendants, by their special and limited appearance, had not waived the question of jurisdiction. (Bettenhausen, 388 Ill. at 491, 58 N.E.2d at 552.) The court in Weisguth, however, refused to apply the rule prohibiting reinstatement because the defendant had forfeited its right to complain of the trial court’s action by appearing and contesting the case on the merits. (Weisguth, 272 Ill. at 543, 112 N.E. at 351.) To exercise the right to question the jurisdiction of the court, the defendants “ ‘should either have not appeared at all or limited their appearance to the objection against the jurisdiction of the court.’ ” (Weisguth, 272 Ill. at 543, 112 N.E. at 351, quoting Herrington v. McCollum (1874), 73 Ill. 476, 479; Zandstra v. Zandstra (1922), 226 Ill. App. 293, 309-10.) “[W]hen defendants appeared and contested the case on the merits, they conferred jurisdiction on the court, assuming that it had not had jurisdiction before.” (Kalalinick v. Knoll (1981), 97 Ill. App. 3d 660, 664, 422 N.E.2d 1011, 1015.) (As noted by the Appellate Court for the Fifth District, the rule set forth in Weisguth, and followed in Bettenhausen, is dicta, since the defendant was held to have forfeited its right to complain by appearing without objection in the subsequently reinstated case. Ripplinger v. Quigley (1992), 231 Ill. App. 3d 1002, 1005, 597 N.E .2d 260, 262.)

Third, our plaintiff’s voluntary nonsuit was supported by an agreed-upon stipulation for dismissal; this contrasts with the facts of Weisguth and Bettenhausen, in which the plaintiff took a nonsuit without the consent of the defendant. Where the parties agree to the dismissal, strict application of the Weisguth rule has been held unwarranted. Weilmuenster v. H.H. Hall Construction Co. (1979), 72 Ill. App. 3d 101, 105, 390 N.E.2d 579, 582; Ripplinger, 231 Ill. App. 3d at 1007, 597 N.E.2d at 263.

Defendants point to this court’s decision in Herman v. Swisher (1983), 115 Ill. App. 3d 179, 450 N.E.2d 28, in which we affirmed the trial court’s denial of plaintiff’s motion to vacate an order of dismissal following a voluntary nonsuit. While our court in Herman relied upon the rule of Bettenhausen and Weisguth, the question of defendant’s waiver was not at issue since the case went directly on review following the trial court’s denial of plaintiff’s motion to vacate and reinstate. Also, the plaintiff in Herman appeared to have intended the consequences of his voluntary dismissal, since that plaintiff moved for dismissal to avoid the consequences of a motion for summary judgment. In the case now before us, it is undisputed that plaintiff did not intend to dismiss her action against these defendants, so the rationale behind the rule in Bettenhausen, as applied in Herman, would not be met were we to choose the result urged by defendants.

We conclude that the trial court had jurisdiction to vacate the order of dismissal and reinstate plaintiff’s complaint. Such action was not a refiling of plaintiff’s complaint under section 13—217, so that plaintiff’s later voluntary dismissal and refiling was not an impermissible second refiling.

Accordingly, the order of the circuit court of Peoria County denying defendants’ motions to dismiss is affirmed.

Affirmed.

BARRY, P.J., and STOUDER, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN WHIPPLE, Defendant-Appellant.
    Third District
    Nos. 3—91—0324 through 3—91—0328 cons.
    Opinion filed November 5, 1992.

      Daniel Kirwan, of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Edward Burmila, Jr., State’s Attorney, of Joliet (John X. Breslin and Rita Kennedy Mertel, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE HAASE

delivered the opinion of the court:

The defendant, John Whipple, pled guilty to robbery, home invasion, and aggravated criminal sexual assault (Ill. Rev. Stat. 1991, ch. 38, pars. 18—1(a), 12—11(a)(2), 12—14(a)(4)) in each of five cases involving five separate victims. The court thereafter sentenced him to concurrent prison terms of three years for the robberies and lxk years for the home invasions. Those sentences were to run consecutively with 7V2-year prison terms imposed for each aggravated criminal sexual assault conviction. The court also ordered the sentences for each separate case to be served consecutively. Thus, the defendant was sentenced to consecutive prison terms totaling 75 years. The court also ordered that the sentences be served consecutively to sentences the defendant had previously received in Georgia. The defendant appeals.

The factual basis for the defendant’s pleas established that in each of the five cases, he went to the apartment of the female victim. In two cases, as the women were leaving their apartments, the defendant grabbed them and forced them back inside. In one case, he knocked on the victim’s door, and when she answered, he forced his way into her apartment. In another case, he was admitted by the victim’s three-year-old daughter while the victim was in the shower. In the last case, he was admitted by the victim’s six-year-old daughter. In each case he was masked, and he blindfolded his victim and tied her hands behind her back. He then forced her to engage in both vaginal intercourse and oral sex. In each case, the defendant also took money from the victim’s apartment.

On appeal, the defendant first argues that his robbery convictions must be vacated because they are based on some of the same physical acts as his corresponding convictions for aggravated criminal sexual assault. The State argues that the defendant has waived the issue by failing to raise it in the trial court or in his motion to reconsider sentence. However, we will address the issue under the plain error exception to the waiver rule. People v. Cox (1972), 53 Ill. 2d 101, 291 N.E.2d 1.

Initially, we note that multiple convictions cannot be based on the same physical acts. People v. Monigan (1990), 204 Ill. App. 3d 686, 561 N.E.2d 1358.

In each of the five cases, the defendant was charged with robbery and aggravated criminal sexual assault. According to the charges the State filed, the criminal sexual assaults were aggravated because the defendant committed them during the course of committing robbery. When the court found the defendant guilty of the aggravated criminal sexual assaults, it necessarily found that the defendant had committed the robberies. Therefore, in separately finding the defendant guilty of each of the robberies, it necessarily relied on some of the same physical acts that formed the basis for the aggravated criminal sexual assault convictions. Accordingly, pursuant to our authority under Supreme Court Rule 615(b) (134 Ill. 2d R. 615(b)), we reverse the defendant’s robbery convictions and sentences.

The defendant next argues that three of his convictions for home invasion must be vacated because they were based on some of the same physical acts as his corresponding convictions for aggravated criminal sexual assault. The defendant correctly notes that injury to the victim was an essential element in the home invasion charges. (Ill. Rev. Stat. 1991, ch. 38, par. 12—11(a)(2).) However, he contends that the factual basis for each of the home invasion indictments established that the only injury the victim suffered was caused by having sexual intercourse with him, and that these same acts of sexual intercourse Were the basis for the charges of aggravated criminal sexual assault. We disagree.

In the instant case, all three of the complained-of home invasion indictments alleged that the defendant injured the victims by tying their hands and having sexual intercourse with them. In stating the factual basis for each of the charges, the prosecutor specifically stated that the respective victims were tied up. The factual basis presented by the prosecutor in two of the complained-of cases established that the defendant made a statement admitting the “substance of the charges set forth in the indictment.” The factual basis in the other case established that the defendant made a statement admitting the “assault charged in this indictment.” Thus, the home invasion indictments alleged that the defendant injured the victims by tying their hands, and the factual basis of each charge established that the defendant had admitted the charges alleged in the indictments. Therefore, we hold that separate physical acts supported the home invasion convictions and the aggravated criminal sexual assault convictions.

Finally, the defendant argues that the trial court abused its discretion in imposing sentences totaling 75 years. Specifically, the defendant argues that mitigating factors were not given adequate weight by the trial court. He also contends that his sentences should not have been ordered to run consecutively to the life sentence imposed in Georgia.

Sentencing is a matter of judicial discretion, and absent an abuse of that discretion by the trial court, a sentence may not be altered upon review. (People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541.) When mitigating evidence is before the trial judge, he is presumed to have considered it absent some indication, other than the severity of the sentence itself, to the contrary. (People v. Garrison (1991), 209 Ill. App. 3d 979, 568 N.E.2d 943.) Included among the factors to be considered when imposing sentence are the circumstances surrounding the offense, the need to deter others, and the protection of the public. (People v. Goodwin (1991), 208 Ill. App. 3d 829, 567 N.E.2d 666.) A trial judge may properly impose consecutive sentences when a defendant commits a number of offenses within a short time span. (People v. Rivera (1991), 212 Ill. App. 3d 519, 571 N.E.2d 202.) Moreover, consecutive sentences are appropriate when a defendant sexually assaults a number of victims. People v. Spires (1989), 182 Ill. App. 3d 176, 537 N.E.2d 1010.

In the instant case, the record of the sentencing hearing establishes that the trial judge carefully weighed the factors in mitigation and aggravation. In fact, the trial judge recited the same mitigating factors that the defendant claims on appeal were not adequately considered. These included that prior to his sexual assault convictions, the defendant had no criminal history. Moreover, the defendant had alcohol, drug, and emotional problems. He also had a difficult home life when he was growing up. However, the trial court determined that consecutive sentences were appropriate based on the nature of the numerous offenses and the short period of time in which they were committed. The trial judge reaffirmed this position when he denied the defendant’s motion to reconsider the sentence. We find no abuse of discretion by the trial judge in sentencing the defendant.

The record in the case at hand established that the masked defendant tied up and blindfolded five different women. Then, he sexually assaulted and robbed them in their own homes. In three of the five cases, small children were present when the attacks occurred. All of these attacks took place between April 14, 1989, and May 19, 1989.

Additionally, evidence was presented that the masked defendant had attacked three women in their homes in Georgia between September 25, 1989, and December 26, 1989. These attacks were very similar to the ones involved in the instant case, including the fact that children were present when they occurred. The record clearly supports the trial judge’s imposition of consecutive sentences totaling 75 years’ imprisonment in the instant case.

Finally, we find no error in imposing a consecutive sentence to the life sentence which was imposed upon the defendant in Georgia. (See People v. Epps (1986), 143 Ill. App. 3d 636, 493 N.E.2d 378.) This is especially true since, under the Georgia statutes, the defendant will be eligible for parole consideration in Georgia after he has served seven years of the sentences imposed there. Ga. Code Ann. §77—525 (Supp. 1991).

Accordingly, the defendant’s robbery convictions and sentences are reversed. The defendant’s convictions and sentences for the home invasion and the aggravated criminal sexual assault offenses are affirmed.

Affirmed in part and reversed in part.

BARRY, P.J., and STOUDER, J., concur.