author: PRESIDING JUSTICE LaPORTA

text:
    THE HARTFORD FIRE INSURANCE COMPANY et al., as Subrogees, et al., Plaintiffs-Appellants, v. ARCHITECTURAL MANAGEMENT, INC., et al., Defendants-Appellees.
    First District (6th Division)
    No. 1—88—1034
    Opinion filed January 19, 1990.
    Rehearing denied February 27, 1990.

      Johnson, Cusack & Bell, Ltd., of Chicago (Paul J. Wisner and Michael R. Booden, of counsel), for appellants.
    Heineke, Burke, Healy & Bodach, of Chicago (John C. Healy and Robert C. Farrar, of counsel), for appellees.
   PRESIDING JUSTICE LaPORTA

delivered the opinion of the court:

This action was brought by plaintiffs, Hartford Fire Insurance Company and Home Insurance Company of Illinois, as subrogees of Valley View Community School District No. 364U, to recover damages as a result of a fire at the Oak View School on January 1, 1980. On the date of the fire, defendant, Certified Security Systems, Inc., maintained a fire-alarm receiving panel which it had connected between the school and the fire department in Bolingbrook, Illinois. Plaintiffs alleged that by this defendant’s negligence or by the failure of its equipment, or both, there was a delay in the communication of the fire alarm to the Bolingbrook fire department. Plaintiffs asserted further that the delay in the arrival of the fire department greatly aggravated the damages caused by the fire. Defendant Certified Security Systems, Inc., brought a motion for summary judgment based upon a liquidated damages provision contained in its contract with plaintiffs’ subrogor. The trial court granted defendant’s motion, entered judgment in favor of plaintiffs and against this defendant in the sum of $90, and denied plaintiffs’ motion for reconsideration. Plaintiffs appeal this judgment.

Plaintiffs’ complaint alleged that defendant negligently installed and maintained the fire-alarm system connected to the Oak View School, that defendant breached the obligations imposed under its contract with plaintiffs’ subrogor, and that defendant’s connecting and monitoring equipment was not reasonably suited for its intended use. In its answer to the complaint, defendant denied the plaintiffs’ allegations of negligence, breach of contract, and product liability. In addition, defendant asserted paragraphs 16, 17, and 18 of the contract as affirmative defenses to plaintiffs’ claims.

Paragraph 16 of the contract provided that defendant was not an insurer, and in case defendant failed to perform the agreed-upon services and a loss resulted, defendant’s liability would be limited to six times the monthly connection fee as liquidated damages. Paragraphs 3 and 6 of the contract stated that plaintiffs’ subrogor was to pay defendant a monthly fee of $15 for the connection to the receiving panel as well as an installation fee of $140. Defendant argued that its liquidated damages were, therefore, limited to $90 under the language contained in paragraph 16. Paragraph 17 provided for an express indemnity clause in favor of defendant, and paragraph 18 included language whereby plaintiffs’ subrogor agreed to hold defendant harmless from any and all claims caused by any hazard covered by insurance on the plaintiffs’ premises. The contract also provided that defendant was not responsible for the maintenance of the previously installed alarm system at the school. Under the terms of the contract, defendant was obligated only to connect the school’s alarm system to the receiving panel at the Bolingbrook fire department and to maintain the receiving panel. The contract further stated that the signals transmitted through the alarm system were to be monitored by the municipal fire department and that defendant assumed no responsibility for the manner in which such signals were monitored or the response, if any, to such signals. Defendant’s answer sought dismissal of the plaintiffs’ complaint.

Thereafter, defendant filed a motion for summary judgment requesting entry of an order that its liability to plaintiffs was equal to liquidated damages of $90 as specified in the contract. In response, plaintiffs’ subrogor stated that defendant’s motion sought summary judgment on the issue of damages but not on the issue of liability and claimed that the liquidated damages provision was unenforceable due to a disparity of bargaining power between defendant and plaintiffs’ subrogor. Plaintiffs argued that their subrogor had no bargaining power, citing a Bolingbrook ordinance which required that the school’s fire-alarm system be connected to the alarm monitoring equipment at the fire department. Because the only receiving panel at the fire station was defendant’s, plaintiffs claimed that their subrogor was obligated to contract with defendant and had no bargaining power in the transaction. Defendant’s reply alleged that there was no disparity of bargaining power because plaintiffs’ subrogor could have contracted with other service providers.

After a hearing, the trial court granted defendant’s motion for summary judgment. The court’s order provided that “[defendant’s] liquidated damages [were] $90” according to defendant’s contract with plaintiffs’ subrogor. The order also included a finding under Rule 304(a) (107 Ill. 2d R. 304(a)) that there was no just reason to delay its enforcement or appeal. Plaintiffs subsequently filed a motion for reconsideration which was denied by the circuit court.

On appeal, plaintiffs contend that the trial court erred in granting defendant summary judgment on the liquidated damages provision contained in the contract with plaintiffs’ subrogor.

Defendant claims that the trial court’s order granting summary judgment was proper, but also asserts that this court lacks jurisdiction to hear this appeal. Defendant contends that because the trial court’s order decided only the issue of damages, it did not terminate the controversy between the parties and was not final and appealable.

We initially consider defendant’s contention that this court lacks jurisdiction over this matter. The appellate court generally has jurisdiction to review only orders or judgments which are final (107 Ill. 2d R. 301; Flores v. Dugan (1982), 91 Ill. 2d 108, 435 N.E.2d 480), and Supreme Court Rule 304(a) provides that, in the case of multiple parties or claims, an appeal may be taken from a final judgment as to one or more, but fewer than all, of the parties or claims if the trial court makes an express written finding that there is no just reason for delaying its enforcement or appeal (107 Ill. 2d R. 304(a)). The fact that an order contains that language does not, however, make an otherwise nonfinal order appealable. Kellerman v. Crowe (1987), 119 Ill. 2d 111, 115, 518 N.E.2d 116, 118; Vijuk Bindery Equipment, Inc. v. Transconex, Inc. (1988), 171 Ill. App. 3d 408, 410, 525 N.E.2d 593, 594.

To be final and appealable, a judgment must terminate the litigation between the parties on the merits of the cause so that, if affirmed, the trial court need only execute the judgment. (Kellerman, 119 Ill. 2d at 115, 518 N.E.2d at 118.) Even though an order need not dispose of all the issues presented by the pleadings to be appealable, it must be final in that it disposes of the rights of the parties, either upon the entire controversy or upon some definite and separate part thereof. Kellerman, 119 Ill. 2d at 115, 518 N.E.2d at 118.

In the case at bar, the defendant’s motion for summary judgment sought entry of an order holding that its liability to plaintiffs was equal to liquidated damages of $90 in accordance with paragraph 16 of the contract with plaintiffs’ subrogor. After the hearing on the motion, the trial court found that there was no genuine issue of material fact, granted defendant’s motion for summary judgment, and held that plaintiffs were entitled to liquidated damages of $90 in accordance with the defendant’s agreement with plaintiff’s subrogor. The court also held that the order was final with no just reason to delay its enforcement or appeal.

Relying on Vijuk Bindery Equipment, Inc. v. Transconex, Inc. (1988), 171 Ill. App. 3d 408, 525 N.E.2d 593, defendant contends that the trial court’s order was not final and appealable because it decided only the issue of damages and not the issue of liability. We find that the trial court’s order was final and appealable.

In the instant case, the trial court granted defendant’s motion for summary judgment which requested entry of an order that its liability to plaintiffs be equal to liquidated damages of $90. Contrary to defendant’s claim, the order reflects that, in fact, the trial court decided the issue of liability and did so in favor of plaintiffs. The court also determined that defendant’s liability to plaintiffs was equal to liquidated damages of $90. Thus, the order was final in that it disposed of the rights of these two parties and terminated the litigation between them.

In addition, we find the instant facts to be quite different from those in the Vijuk Bindery case. In that case, the defendant moved for partial summary judgment on the issue of the validity of a limitation of liability clause. In granting partial summary judgment, the trial court ruled, as a matter of law, that the plaintiff could potentially recover a maximum of $50. (Vijuk Bindery, 171 Ill. App. 3d at 410, 525 N.E.2d at 594.) The trial court did not dispose of the issue of liability or the issue of damages to the extent that damages could have been assessed at any amount less than or equal to $50. (Vijuk Bindery, 171 Ill. App. 3d at 410, 525 N.E.2d at 594.) Thus, the court merely entered an order which determined the validity of a contract provision, but did not decide the rights of the parties to the litigation.

In the case at bar, the trial court’s order granted defendant’s motion for summary judgment and ordered that plaintiffs receive the amount of the liquidated damages provided in the contract between defendant and plaintiffs’ subrogor. Consequently, the court’s order did determine the rights of the parties to the litigation and was final and appealable.

Having concluded that we have jurisdiction over this matter, we now address the issues raised by the parties.

Plaintiffs assert that the trial court should have found the liquidated damages provision invalid. We disagree.

Questions of contractual validity or interpretation are matters of law for the court to decide. (Northern Illinois Construction Co. v. Zale (1985), 136 Ill. App. 3d 822, 824, 483 N.E.2d 1013, 1015.) In general, Illinois courts give effect to liquidated damage provisions if the parties have expressed their agreement in clear and explicit terms and there is no evidence of fraud or unconscionable oppression, a legislative directive to the contrary, or a special social relationship between the parties of a semipublic nature. Purolator Security, Inc. v. Wells Fargo Alarm Service (1986), 141 Ill. App. 3d 1106, 1112, 491 N.E.2d 161, 164; First Financial Insurance Co. v. Purolator Security, Inc. (1979), 69 Ill. App. 3d 413, 417-18, 388 N.E.2d 17, 20-21; Pick Fisheries, Inc. v. Burns Electronic Security Services, Inc. (1976), 35 Ill. App. 3d 467, 471-72, 342 N.E.2d 105, 108.

In the instant case, the liquidated damage provision was clear and explicit, limiting defendant’s liability to six times the monthly fee. Moreover, there was no evidence of fraud, and there was no legislative directive to the contrary.

Plaintiffs assert that the liquidated damage provision should be held invalid, arguing that the relationship between defendant and plaintiff’s subrogor was of a special semipublic nature. This argument has previously been rejected by this court, and we find no reason to depart from our prior decisions. Purolator Security, Inc. v. Wells Fargo Alarm Service, 141 Ill. App. 3d at 1112, 491 N.E.2d at 164-65; Pick Fisheries, 35 Ill. App. 3d at 474, 342 N.E.2d at 109-10.

Plaintiffs also contend that the liquidated damage provision is unconscionable due to the disparity in bargaining power between defendant and plaintiffs’ subrogor. Although the fact that one party had limited bargaining power may affect a court’s interpretation of contractual provision, the relative bargaining power of parties to a contract is only one factor to be considered in determining whether the enforcement of a liquidated damage provision would be unconscionable. First Financial Insurance Co., 69 Ill. App. 3d at 419, 388 N.E.2d at 21-22.

An unconscionable bargain is one which no person in his senses would make and which no fair and honest person would accept. (First Financial Insurance Co., 69 Ill. App. 3d at 419, 388 N.E.2d at 22.) The term unconscionable encompasses the absence of meaningful choice by one of the parties as well as contract terms which are unreasonably favorable to the other party. First Financial Insurance Co., 69 Ill. App. 3d at 419, 388 N.E.2d at 22.

Despite any disparity in bargaining power between the defendant and plaintiffs’ subrogor in the instant case, we do not believe that the contract can be characterized as unconscionable. The liquidated damage provision was clear and explicit and limited defendant’s liability to six times the monthly fee. The record reflects that defendant had not provided the original fire-alarm system previously installed at the school. The contract clearly provided that defendant was not responsible for the maintenance of the previously installed system at the school.

The contract also stated that the receiving panel was to be monitored by fire department personnel and not by defendant or its agents. Defendant did not warrant that the existing alarm system would function properly or that the fire department would respond to an alarm in a timely manner. All defendant agreed to provide was a connection to the panel at the Bolingbrook fire station in exchange for an installation fee of $140 and a monthly fee of $15. The monthly fee of $15 merely ensured that the school’s alarm system was connected to the receiving panel at the fire department and that the receiving panel was in good working order.

The record reveals that defendant agreed to provide a connection from the school to the receiving panel for a monthly fee of $15 and sought to limit its liability under the contract to $90. There has been no showing that this was a bargain which no person in his senses would make and which no fair and honest person would accept, or that there was an absence of meaningful choice by one of the parties as well as contract terms which were unreasonably favorable to the other party. (First Financial Insurance Co., 69 Ill. App. 3d at 419, 388 N.E.2d at 22.) Based upon the record before us, we cannot say that it would be unconscionable to enforce the liquidated damage provision limiting defendant’s liability to $90.

In evaluating liquidated damage provisions, courts must balance the interest in compensating individuals for their injuries and requiring tortfeasors to pay the damages which their conduct has caused against the interest in freedom of contract, including the freedom of parties to a contract to allocate risk of loss. (The Hartford v. Burns International Security Services (1988), 172 Ill. App. 3d 184, 189-90, 526 N.E.2d 463, 466; Bastían v. Wausau Homes, Inc. (N.D. Ill. 1986), 635 F. Supp. 201, 203.) In striking this balance, we find that the liquidated damage provision at issue here was not unconscionable, and the parties were free to allocate their risk of loss as they saw fit. Hartford v. Burns International, 172 Ill. App. 3d at 190, 526 N.E.2d at 466.

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

Affirmed.

McNAMARA and EGAN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE McNAMARA

license: Public Domain

text:
      In re ESTATE OF MILDRED L. WRAGE, Deceased (The Northern Trust Company, as Adm’r of the Estate of Mildred L. Wrage, Deceased, Petitioner-Appellee, v. Jean Carol Tracey, Respondent-Appellant).
    First District (6th Division)
    No. 1—88—3112
    Opinion filed January 19, 1990.

      Gene L. Armstrong, of Cichocki & Armstrong, Ltd., of Chicago, for appellant.
    Groble & Groble, Ltd., of Chicago (Daniel F. Marren, Phillip J. Fowler, and George W. Groble, of counsel), for appellee.
   JUSTICE McNAMARA

delivered the opinion of the court:

Petitioner, The Northern Trust Company as independent administrator with the mil annexed of the estate of Mildred I. Wrage, deceased, initiated citation proceedings against decedent’s granddaughter, respondent Jean Carol Tracey, for wrongful conversion of $86,735 from a checking account. The trial court entered judgment on the pleadings in favor of petitioner after finding that the checking account was not in joint tenancy. Respondent appeals, contending that the account was in joint tenancy; that the trial court had no jurisdiction to enter judgment; and that petitioner’s attorneys acted under a conflict of interest.

In June 1983, decedent suffered from health problems,' and respondent, her granddaughter, cared for her. In August 1984, decedent opened checking account number 06 — 1072—0 at the Bank of Lincoln-wood. On September 5, 1986, respondent was placed on the account pursuant to a handwritten memorandum, dated August 19, 1986. The memorandum signed by decedent, stated:

“To whom it may concern, I Mildred Wrage of 6542 North Kilpatrick, Lincolnwood, II. do hereby authorize my granddaughter, Jean Carol Tracey to have an authorized signature on my Bank of Lincolnwood checking account number 06 — 1072— 0.”

On the bank's account card, a bank employee affixed her signature, and placed a check mark in the box labelled “power of attorney.” On the reverse side, the employee wrote, “Awaiting POA.”

On September 15,1986, decedent executed a written power of attorney, granting that power to respondent. Acting under the power of attorney, between September 15, 1986, and May 4, 1987, respondent withdrew $52,495.79 from various accounts solely in the name of decedent and deposited them into checking account number 06 — 1072— 0. Respondent withdrew funds from the checking account to pay for decedent’s living expenses.

Pursuant to a request filed by decedent’s three children, on May 4, 1987, decedent was found to be disabled. Petitioner was appointed guardian of the estate, and respondent was appointed guardian of the person. Beginning on May 4, 1987, respondent was granted $500 per week as compensation.

Shortly thereafter, respondent contacted decedent’s attorney and requested compensation for her past services in caring for decedent. The attorney declined to represent her because he represented the estate. Respondent hired an attorney and filed a claim seeking compensation at $25,872 for services rendered between September 15, 1986, and May 4, 1987. Judge Harrison heard the matter on August 24 and October 8, 1987.

At the August 24 hearing, Judge Harrison raised the issue of a potential conflict of interest in the relationship between decedent’s attorney and respondent. The court expressly found that no conflict of interest existed. No objection was made by respondent.

On September 18, 1987, decedent died. On October 2, 1987, her will was admitted to probate and letters of office were issued to petitioner.

On October 8, 1987, the August 24 hearing was resumed. At its conclusion, the court allowed respondent’s claim in the amount of $17,170.

Two days later, respondent withdrew all funds from checking account 06 — 1072—0, totalling $86,735.94.

On November 6, 1987, the Lincolnwood bank notified petitioner of the withdrawal. Respondent refused petitioner’s demands to return the funds. On March 31, 1988, petitioner filed a petition for citation to recover property, alleging 'wrongful conversion. On June 3, 1988, respondent filed a response and affirmative defense, arguing that the account was in joint tenancy with right of survivorship.

On June 16, 1988, petitioner filed a motion for judgment on the pleadings. On August 16, 1988, respondent presented a motion to compel withdrawal of petitioner’s attorneys.

On August 30, 1988, respondent filed a motion to quash citation and to dismiss the amended petition, because it omitted the proper verification and thus the court lacked subject matter jurisdiction.

On September 12, 1988, Judge Perivolidis granted petitioner’s motion for leave to amend its amended petition by adding certification to the original and amended petitions, which were filed instanter. The court granted petitioner’s motion for judgment on the pleadings, ruling that the account did not meet the statutory requirements for joint tenancies in bank accounts. The court ordered respondent to deliver the entire proceeds of the account to petitioner. The court denied without prejudice respondent’s motion to compel withdrawal of petitioner’s attorneys. The court also denied respondent’s motion to quash the citation and to dismiss the amended petition. No post-judgment motions were filed.

We first address the jurisdictional issue. Under section 2— 616(a) of the Code of Civil Procedure, prior to judgment the court may properly permit an amendment to the pleadings to add the certification which the Probate Act of 1975 requires. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 616(a). See also Ill. Rev. Stat. 1987, ch. 110½, pars. 1 through 6 (Code of Civil Procedure applies to Probate Act).) The amendment was proper here, and the trial court had subject matter jurisdiction.

Respondent’s reliance on In re Estate of Lindheimer (1962), 36 Ill. App. 2d 434, 184 N.E.2d 759, is misplaced. In that case, this court upheld a dismissal based on lack of jurisdiction where the pleadings were unverified. There, however, the judgment had been entered and the 30-day post-judgment period had passed when the amendment was sought. Here, the amendment was obtained prior to the entry of judgment. See Ennor v. Hodson (1888), 28 Ill. App. 445, rev’d on other grounds (1890), 134 Ill. 32, 25 N.E. 582.

We next address respondent’s contention that the checking account in question is held in joint tenancy. Respondent argues that genuine issues of material fact remain. In considering a motion for judgment on the pleadings, the issue is the sufficiency of the pleadings as a matter of law, i.e., whether movant is entitled to judgment as a matter of law where no genuine issues of material fact exist. (Berymon v. Henderson (1985), 135 Ill. App. 3d 858, 482 N.E.2d 391.) Respondent points to her denials of various allegations as evidence of remaining issues of fact. For example:

“ALLEGATION: 3 — A. Since October 10, 1987, the respondent *** has wrongfully withheld the proceeds of a checking account *** in the amount of $86,735.94, which funds are and were the sole property of the decedent and her estate and which were wrongfully removed *** by respondent ***.
ANSWER: 3 — A. Respondent denies the allegations of this paragraph.
ALLEGATION: 3 — C. [Petitioner made repeated demands upon the Respondent and her attorney for the return of these funds *** and the Respondent has wrongfully refused to return the funds ***.
ANSWER: 3 — C. Respondent *** denies that Petitioner made any demand upon her or her attorney prior to filing the Petition herein and denies the remaining allegations of this paragraph.
ALLEGATION: 8. Illinois Revised Statutes *•**, chapter 76, par. 2 governs the Illinois law on the creation of an enforceable joint tenancy with the right of survivorship, which governs this dispute as follows. Unless a written instrument exists that expresses the intention of a party to create a joint tenancy in personal property with the right of survivorship there is no joint tenancy.
ANSWER: 8. Respondent states that the allegations in this paragraph are legal conclusions as to which no response is required. If further response is required, Respondent denies the allegations of this paragraph.
ALLEGATION: 9. Since no written instrument existed from the decedent creating joint tenancy with the Respondent in the *** checking account ***, the Respondent has wrongfully removed the funds from that account and continues to wrongfully refuse to deliver the proceeds of that account ***.
ANSWER: 9. Respondent states that the allegations in this paragraph are legal conclusions as to which no response is required. If further response is required, Respondent denies the allegations of this paragraph.”

We cannot see how any of these statements, or others pointed to by respondent, can be construed as raising material issues of fact. On the contrary, the answers are inadequately pled, as they are overbroad, conclusory assertions, which may not be considered in determining whether the pleadings raise questions of law appropriate for entry of judgment on the pleadings. (See Upper Avenue National Bank v. First Arlington National Bank (1980), 81 Ill. App. 3d 208, 400 N.E.2d 1105.) Respondent also included a statement in her answer that she “denies that her claim to the proceeds withdrawn from the account no. 06 — 1072—0 is based solely upon” the August 29, 1986, memorandum and the September 5, 1986, account card. However, respondent never indicated what, if anything, she did rely upon to prove a joint tenancy and to prevent judgment on the pleadings. If in fact she had written evidence, it should have been submitted with the pleading. See Ill. Rev. Stat. 1987, ch. 110, par. 2—606; Plocar v. Dunkin’ Donuts of America, Inc. (1981), 103 Ill. App. 3d 740, 431 N.E.2d 1175.

Respondent’s other affirmative defenses, alleging estoppel, mistake of fact or law, and mutual mistake of fact or law, fail to provide any factual basis for her position, and thus they are inadequately pled. See Economy Truck Sales & Service, Inc. v. Granger (1965), 61 Ill. App. 2d 111, 209 N.E.2d 1; see also Warren Barr Supply Co. v. Haber Corp. (1973), 12 Ill. App. 3d 147, 298 N.E.2d 301.

Thus, the question presented here was a question of law. Furthermore, the facts are such that a reasonable person could determine them in only one way, i.e., that no joint tenancy existed. See Honkowp v. Dixon (1981), 97 Ill. App. 3d 476, 422 N.E.2d 949.

Section 2 of the joint rights and obligations act abolishes joint tenancies in personal property, including bank accounts, except in limited situations.

“Except as to executors and trustees, and except also where by will or other instrument in writing expressing an intention to create a joint tenancy in personal property with the right of survivorship, the right or incident of survivorship as between joint tenants or owners of personal property is hereby abolished, and all such joint tenancies or ownerships shall, to all intents and purposes, be deemed tenancies in common ***.
(a) When a deposit in any bank *** has been made *** in the names of two or more persons payable to them when the account is opened or thereafter, such deposit *** may be paid to any one of said persons whether the other or others be living or not, and when an agreement permitting such payment is signed by all said persons at the time the account is opened or thereafter the receipt or acquittance of the person so paid shall be valid and sufficient discharge from all parties to the bank for any payments so made.” Ill. Rev. Stat. 1987, ch. 76, par. 2(a).

In Doubler v. Doubler (1952), 412 Ill. 597, 107 N.E.2d 789, the court strictly construed this requirement. It held there was no joint tenancy in a bank account due to the absence of a signed signature card or other written agreement. The husband’s attempt to add his wife by writing “Payable to either of them or the survivor with full survivorship rights” was ineffective.

In Frey v. Wubbena (1962), 26 Ill. 2d 62, 185 N.E.2d 850, the court explained that a bank account is a “fluctuating res, subject to daily change in amount by any of the joint owners. Joint tenancy in such an unstable atmosphere as a shifting bank account should be created by contract of the parties detailing their rights and duties under existing statutory authority.” (Frey v. Wubbena, 26 Ill. 2d at 69, 185 N.E.2d at 855.) Thus, there must be an agreement in writing. (26 Ill. 2d at 69, 185 N.E.2d at 855.) The account’s listing the names of the father or first daughter or second daughter, therefore, was ineffective because it did not indicate an intention to create the right of survivor-ship or that there was a deposit agreement providing for joint tenancy. Frey v. Wubbena, 26 Ill. 2d 62, 185 N.E.2d 850.

The minimum necessary, then, is a signed writing stating that the account is held in joint tenancy with rights of survivorship. See Frey v. Wubbena, 26 Ill. 2d 62, 185 N.E.2d 850; In re Estate of Schneider (1955), 6 Ill. 2d 180, 127 N.E.2d 445; Doubler v. Doubler, 412 Ill. 597, 107 N.E.2d 789; Illinois Trust & Savings Bank v. VanVlack (1923), 310 Ill. 185, 141 N.E. 546; Price v. Saffield (1963), 45 Ill. App. 2d 94, 195 N.E.2d 44.

In the present case, there is a handwritten memorandum dated August 1986 authorizing the placement of respondent’s name on the checking account. It reads: “I *** hereby authorize my granddaughter, Jean Carol Tracey to have an authorized signature on my” checking account. There is also a bank account card, which includes a check in a box marked “Power of Attorney,” and a note which states, “Awaiting POA.” There is also a subsequently executed power of attorney. There is nothing on any of these items indicating the existence of a joint tenancy. Instead, respondent’s name on the account was restricted to her acting under the power of attorney. Any such agency relationship terminated upon the death of the principal. See Gould Coal Co. v. Excelsior Brewing Co. (1960), 26 Ill. App. 2d 488, 168 N.E.2d 805.

We hold that the trial court correctly found that there was no joint tenancy created, properly entered judgment on the pleadings in favor of petitioner, and correctly ordered respondent to deliver the entire proceeds of the account to petitioner.

Respondent also contends that the trial court erred in not granting her motion to compel withdrawal of petitioner’s attorneys. Respondent argues that the attorneys acted both for the decedent and for respondent, e.g., when the power of attorney and other related advice was sought. Thus, she maintains, the attorneys would be required to “use against her the confidential and sensitive information she revealed to them while she believed they were her attorneys.”

We disagree with petitioner’s argument that the denial of respondent’s motion to compel withdrawal was not a final order because it contained the language “without prejudice.” We find, however, that respondent may not raise the issue.

In August 1987, both parties appeared before Judge Harrison regarding respondent’s request for fees for services rendered to decedent. Judge Harrison began the hearing by asking decedent’s attorney about the potential conflict:

“THE COURT: I *** wanted to ask you, in view of the fact that you prepared the power of attorney upon which this claimant [respondent] seems to have relied, at least in part, in rendering services for which is now making a monetary claim and you are also defending the claim in a sense on behalf of the estate guardian, [decedent’s] daughter. Do you have any conflict here?”

After hearing from the attorneys, the court concluded: “I don’t really see a conflict.” The court expressly asked if decedent’s attorney represented respondent “in her capacity as guardian of the person.” The attorney responded no, that he only represented the estate.

Judge Harrison expressly found there was no conflict of interest. Thus, under the rules of collateral estoppel, the issue between the parties here has already been decided. See Kahler v. Don E. Williams Co. (1978), 59 Ill. App. 3d 716, 375 N.E.2d 1034.

Moreover, respondent failed to make any objection to Judge Harrison’s finding, even though decedent’s attorneys acted in a role adversary to respondent, cross-examined her, and successfully reduced the request for $25,872 in fees to $17,170. Thus, respondent has waived the issue in further proceedings.

Although we need not reach the issue on the record before us, we also would find that decedent’s attorneys never represented respondent in any matter. There is nothing in the record indicating that respondent manifested her authorization that the attorneys act on her behalf, or that the attorneys indicated an acceptance of that power. (See York v. Stiefel (1982), 109 Ill. App. 3d 342, 440 N.E.2d 440, aff'd in part & rev’d in part on other grounds (1983), 99 Ill. 2d 312, 458 N.E.2d 488; Flight Kitchen, Inc. v. Chicago Seven-Up Bottling Co. (1974), 22 Ill. App. 3d 558, 317 N.E.2d 663.) No offer to retain was accepted, and no retainer or fee was paid. See Zych v. Jones (1980), 84 Ill. App. 3d 647, 406 N.E.2d 70.

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

Judgment affirmed.

LaPORTA, P.J., and EGAN, J., concur.


text:
    ROBERT KINTER, Plaintiff-Appellant, v. BOARD OF FIRE AND POLICE COMMISSIONERS FOR THE VILLAGE OF PALATINE et al., Defendants-Appellees.
    First District (6th Division)
    No. 1—89—1386
    Opinion filed January 19, 1990.

      James R. Trusehke & Associates, P.C., of Arlington Heights (James R. Truschke and Kurt A. Richter, of counsel), for appellant.
    Glass, Hill, Dallmeyer & Roth, Ltd., of Northbrook (Everette M. Hill, Jr., of counsel), for appellees.
   PRESIDING JUSTICE LaPORTA

delivered the opinion of the court:

Plaintiff appeals the judgment of the circuit court which affirmed the decision of the Board of Fire and Police Commissioners for the Village of Palatine (the Board) finding plaintiff guilty of the offense of personally disposing of seized property, finding him guilty of insubordination in refusing an order from his superior to submit to a urinalysis test, and further ordered his dismissal from the police force.

Plaintiff raises three issues in this appeal: Whether he was erroneously found guilty of the offense of personally disposing of seized property when he was not specifically charged with this offense; whether he was within his right to refuse to submit a sample for urinalysis; and whether dismissal is an appropriate penalty under the circumstances of this case.

On February 26, 1988, plaintiff, a police officer, responded to a nuisance complaint about a party. When he arrived at the address plaintiff saw two young men seated in an automobile and observed movement which caused him to investigate. He approached the car, asked them what they were doing, and when they did not reply, plaintiff ordered them out of the car. He performed a pat-down search of their persons and searched the interior of their car.

Behind a window visor, plaintiff found a packet of a white, powder-like substance. The young men told him they had paid $70 to $75 for the packet of cocaine. Plaintiff testified he opened the packet and upon visual inspection concluded that the contents were not cocaine, although he did not run a field test on the contents. Plaintiff made a note of the youths’ names, did not arrest them, and told them to leave. Plaintiff testified that he then returned to his squad car, proceeded down the block, and while doing so flipped the packet out of the window of his vehicle. There were no witnesses. Plaintiff testified that he did not notify anyone of the incident.

On April 15, 1988, shortly after he arrived at the station house, the plaintiff was given written notice of three charges filed against him, by the chief of police: (1) that he had come into possession of a controlled substance from the two suspects while on duty as a police officer and failed to turn the seized property in to the Palatine police department; (2) that he had used controlled substances; and (3) a charge unrelated to this appeal, that while he was off duty he learned of and failed to investigate a complaint of a person in a bar improperly in possession of a firearm.

Plaintiff was then given the opportunity to obtain or consult with counsel. On the day the charges were filed against him, plaintiffs locker was searched, and a Darvocet-N 100 pill was found. His superior officer requested that plaintiff provide a urine sample for analysis. Plaintiff responded that on advice of counsel he would not comply with the request, whereupon plaintiff was charged with insubordination.

Following a hearing before the Board, plaintiff was found not guilty of use of controlled substances and not guilty of failing to investigate a complaint of a person improperly in possession of a firearm.

Plaintiff was also found not guilty of having taken possession of property from suspects and of failing to turn the seized property in to the police department, but was found guilty of the offense of personally disposing of seized property and of the charge of insubordination in failing to submit to a urinalysis. The Board ordered plaintiff’s termination from employment as a police officer for the Village of Palatine. He was terminated on July 13, 1988. Plaintiff appealed to the circuit court, which affirmed the Board’s decision.

Plaintiff first argues that he was charged only with taking possession of cocaine, a controlled substance, pursuant to section 402(a) of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1987, ch. 5QV2, par. 1402(a)) and failing to turn the controlled substance in to the Palatine police department. Plaintiff concludes that he could not be found guilty of personally disposing of seized property in violation of General Order 82 — 2R. We do not agree.

The complaint in an administrative hearing need not be as precisely drawn as those before a trial court (Guzell v. Civil Service Comm’n (1974), 17 Ill. App. 3d 266, 272, 308 N.E.2d 351, 356), although it must be sufficient to allow the defendant to prepare an adequate defense. (Martich v. Ellis (1981), 100 Ill. App. 3d 1098, 1101, 427 N.E.2d 876, 878.) An indictment for one offense serves as an indictment for all lesser included offenses even though they are not specified. (People v. Vasquez (1981), 97 Ill. App. 3d 1142, 1143, 424 N.E.2d 42, 43.) Lesser included offenses are defined as offenses which include less than all of the same elements as, or require a less culpable mental state than, the greater offense so that to commit the greater offense one must commit the lesser. People v. Gulley (1987), 162 Ill. App. 3d 545, 547, 515 N.E.2d 1309, 1310.

We find that plaintiff had adequate notice that he might be found guilty of personally disposing of seized material. The charge that he “while on duty as an uniformed Police Officer of the Village of Palatine, Illinois did take possession of cocaine, a controlled substance, pursuant to Illinois Revised Statutes Chapter 56V2, Section 1402(a) from the possession and/or control of [the youths] and did fail to arrest either/both individual(s) and did further fail to turn said controlled substance into [sic] the Palatine Police Department.” The charge was alleged in paragraph 3 of count I of the complaint. Paragraph 4 of count I reads in its entirety:

“4. That the aforementioned constitutes a violation of the following:
A) The ‘cause’ clause of the Fire and Police Commissioners Ordinance as found in Village of Palatine Code of Ordinances,
Chapter 2, Article XX, Section 2 — 375.
B) The following provisions of the Rules and Regulations and General Orders of the Palatine Police Department:
310.02 STANDARD OF CONDUCT: Members shall conduct their private and professional lives in such a manner as to avoid bringing the Department into disrepute. Members shall not engage in conduct which constitutes conduct unbecoming an officer or neglect of duty.
305 OBEDIENCE TO LAWS AND REGULATIONS: All members, sworn officers and civilian employees shall observe and obey all laws and ordinances, and all rules, regulations and orders of the Department; specifically, official Misconduct [sic] as found in Illinois Revised Statutes, Chapter 38, Section 33 — 3.
320.28 USE OF DRUGS AND/OR CONTROLLED SUBSTANCES: Possession or use of controlled substance, except with the approval and guidance of a licensed physician of Illinois and with the knowledge of a supervisor, is prohibited.
345.26 ASSISTING CRIMINALS: Members shall not communicate in any manner directly or indirectly any information which might aid any person to escape arrest or punishment or which might enable them to conceal evidence, contraband, stolen property or any illegal activity.
General Order 82 — 2R (Evidence Preservation and Property Control)
I. Policy
A 2. Under no circumstances will property be kept by any employee in their personal possession beyond their tour of duty or disposed or personally by that employee.
A 8. The taking of property into custody; handling and processing of property; and, its disposition will be conducted within the legal parameters established by statute and judicial decisions.
II. Authority and Responsibility
E. Recovering/Investigating Officer
4. Under no circumstances will property be kept by an employee in their personal possession beyond their tour of duty.
5. Under no circumstances will property be disposed of by an employee personally. Only the Property Custodian may dispose of property through the prescribed procedures.
General Order 86 — 61 (Evidence Inventory of Narcotics and Drugs)
I. Policy — The Palatine Police Department shall maintain strict inventory and control of narcotics and dangerous drugs taken into custody.”

While not specified in the charge, personally disposing of seized property is clearly and repeatedly prohibited by the specific rules and regulations and general orders under which plaintiff is charged.

Plaintiff erroneously relies on Sudduth v. Board of Fire & Police Commissioners (1964), 48 Ill. App. 2d 194, 198 N.E.2d 705, where the court made a point-by-point comparison of the charges and findings. (Sudduth, 48 Ill. App. 2d at 203, 198 N.E.2d at 711.) While acknowledging a technical variance between the charge and the Board’s finding, the court held that the lesser offense was clearly encompassed within the scope of the original charge. Sudduth, 48 Ill. App. 2d at 205, 198 N.E.2d at 712.

Plaintiff also cites Kupkowski v. Board of Fire & Police Commissioners (1979), 71 Ill. App. 3d 316, 389 N.E.2d 219, where a similar result was reached. The accused officer accidentally ran his squad car off the road and into a retaining wall; he then drove away but the motor died a short distance later. The officer repeatedly denied to his superior officer, who came to investigate, that he had had an accident. The officer was charged with failing to report the accident and lying to his superior officer, both of which actions were found by the hearing officer to be neglect of duty and conduct prejudicial to good order and discipline. The officer was also found guilty of lying to the chief of police and the Board of Fire and Police Commissioners of the Village of Downers Grove, which finding he contended could not stand because he was not charged with lying to the board or the chief of police. (Kupkowski, 71 Ill. App. 3d at 320, 389 N.E.2d at 221-22.) The court there found that while the accused officer could have inferred that he might be found guilty of lying to his superior because he was specifically charged with that offense, he could not infer from the charges against him that he might be found guilty of lying to the board or the chief of police. Kupkowski, 71 Ill. App. 3d at 321, 389 N.E.2d at 223.

In our case, the charge of personally disposing of seized property was clearly included within the charge of taking possession of a controlled substance and failing to turn the seized property in to the police department as specified in count I of the complaint.

For these reasons, we find that plaintiff was adequately informed of all charges against him, including that of personally disposing of seized property, the charge of which he was found guilty.

Plaintiff next argues that he was justified and should not have been sanctioned for his refusal to submit a sample for urinalysis. Plaintiff argues that he was suspended at the time the request was made of him and therefore he had no legal duty to obey such an order, and that he was within his legal right in refusing to submit a sample for urinalysis.

Plaintiff offers no authority to support his contention that a suspended officer has no duty to obey an order of the chief of police. The record contains his bald assertions that because he had been suspended at the time of the request, he was not a police officer, and that logic and common sense dictate that he was under no duty or obligation to obey the order of his superior when the urinalysis sample was requested.

Black’s Law Dictionary defines suspension as “[a] temporary cutting off or debarring one, as from the privileges of one’s profession.” (Black’s Law Dictionary 1297 (5th ed. 1979).) Suspension clearly does not relieve the suspended person of any duty to obey, but merely relieves him of the power associated with his position. Webster’s Dictionary defines suspension as a “temporary forced withdrawal from the exercise of office, powers, prerogatives, privileges.” (Webster’s Third New. International Dictionary 2303 (1986).) Plaintiff was removed from duty, but prior to a hearing on the charges, he remained a police officer. Plaintiff admitted that he was paid in full for April 15, 1987, the day on which he was accused, suspended, and the urinalysis requested.

The facts in Washington v. Civil Service Comm’n (1983), 120 Ill. App. 3d 822, 458 N.E.2d 952, are similar to those of the case at bar. There an officer suspected of sexual assault was ordered to “submit to blood and saliva tests.” (Washington, 120 Ill. App. 3d at 828, 458 N.E.2d at 957.) Although that charge is not drug related, as are the charges in our case, the appellate court in Washington found the charge to be “a serious breach of departmental rules which, if true, would seriously affect [the officer’s] ability to function effectively” (Washington, 120 Ill. App. 3d at 829, 458 N.E.2d at 957) and found that the demand was justified. The court held that the officer “was obligated to obey a direct order which was reasonable under the circumstances.” Washington, 120 Ill. App. 3d at 829, 458 N.E.2d at 957.

Here, the charges levelled against plaintiff which were drug related were directed to his possible use of controlled substances and during a search that day Darvocet N-100 was found in his locker. The demand that he provide a sample for urinalysis is reasonable under these circumstances. Plaintiff’s argument that suspension relieved him of the duty to obey the order of his superior officer to submit a urine sample for analysis is invalid and unsupported by legal authority.

Plaintiff next argues that section 3.11 of the Uniform Peace Officers’ Disciplinary Act (Ill. Rev. Stat. 1987, ch. 85, pars. 2551 through 2568) statutorily protects him from the demand for a sample for urinalysis. This section of the statute states that “[i]n the course of any interrogation no officer shall be required to submit to a polygraph test, or any other test questioning by means of any chemical substances, except with the officer’s express written consent. Refusal to submit to such tests shall not result in any disciplinary action nor shall such refusal be made part of his or her record.” (Ill. Rev. Stat. 1987, ch. 85, par. 2564.) This holding refers only to questioning done with polygraph or chemical aid, and clearly does not encompass a urinalysis. Additionally, the United States Supreme Court resolved the issue of whether testing bodily fluids is a method of interrogation in Schmerber v. California (1966), 384 U.S. 757, 16 L. Ed. 2d 908, 86 S. Ct. 1826, when it stated that “[n]ot even a shadow of testimonial compulsion upon or enforced communication by the accused was involved either in the extraction or in the chemical analysis. Petitioner’s testimonial capacities were in no way implicated; indeed, his participation, except as a donor, was irrelevant to the results of the test, which depend on chemical analysis and on that alone.” (Schmerber, 384 U.S. at 765, 16 L. Ed. 2d at 916-17, 86 S. Ct. at 1832-33.) For this reason, plaintiff’s reliance on section 3.11 of the Uniform Peace Officers’ Disciplinary Act is inappropriate.

We find therefore that plaintiff did not have the right to refuse to provide a sample for urinalysis, and his refusal to comply with his superior’s order to do so was insubordination.

Plaintiff finally argues that even if the Board’s decision as to his guilt is upheld, dismissal is an unjustly harsh penalty under the facts of this case.

In reviewing the decision of an administrative agency, the trial court may not entertain “new or additional evidence in support of or in opposition to any finding, order, determination or decision of the administrative agency” and “[t]he findings and conclusions of the administrative agency on questions of fact shall be held to be prima facie true and correct.” (Ill. Rev. Stat. 1987, ch. 110, par. 3 — 110.) The court cannot impose its own penalty, but must determine whether, under the facts and circumstances of the case, the penalty imposed was unreasonable, arbitrary, or unrelated to the action. (Sutton v. Civil Service Comm’n (1982), 91 Ill. 2d 404, 411, 438 N.E.2d 147, 151.) If the evidence sustains the agency’s decision, that decision must be upheld. Bultas v. Board of Fire & Police Commissioners (1988), 171 Ill. App. 3d 189, 194, 524 N.E.2d 1172, 1175.

Plaintiff relies on several cases to support his claim that his dismissal was improper. He cites Massingale v. Police Board (1986), 140 Ill. App. 3d 378, 488 N.E.2d 1289, where the dismissed police officer had an unblemished seven-year record and her only infraction was being intoxicated while off duty. The court found her dismissal was unwarranted. (Massingale, 140 Ill. App. 3d at 382, 488 N.E.2d at 1292-93.) Similarly, in Kreiser v. Police Board (1977), 69 Ill. 2d 27, 370 N.E.2d 511, the plaintiff was found to have been driving his own, unlicensed car while on duty and lying to his commanding officer about the incident. The Illinois Supreme Court found these actions too far removed from the plaintiff’s duties as a police officer to warrant dismissal. Kreiser, 69 Ill. 2d at 30-31, 370 N.E.2d at 513.

However, two other cases are much closer in facts and circumstances to those of our case. In Reich v. Board of Fire & Police Commissioners (1973), 13 Ill. App. 3d 1031, 301 N.E.2d 501, the plaintiff had arranged a marijuana buy without the knowledge and consent of his superiors, and thereafter arranged to have the purchased material returned to the seller. (Reich, 13 Ill. App. 3d at 1034, 301 N.E.2d at 503.) The court upheld his dismissal. (Reich, 13 Ill. App. 3d 1034, 301 N.E.2d at 503.) In Van Gerreway v. Chicago Police Board (1975), 34 Ill. App. 3d 511, 340 N.E.2d 28, the plaintiff was twice involved in the sale of marijuana to undercover agents, a fact which he failed to report to his superiors. (Van Gerreway, 34 Ill. App. 3d at 511, 340 N.E.2d at 29.) The court, in affirming his dismissal, noted that “a paramount issue in these proceedings is not whether plaintiff is a criminal, but rather [it] is his fitness to retain his office as a patrolman.” Van Gerreway, 34 Ill. App. 3d at 514, 340 N.E.2d at 31.

We address the identical question here. “In disciplinary proceedings against a police officer, a single valid finding of a violation of departmental rules will authorize dismissal. [Citations.]” (King v. City of Chicago (1978), 60 Ill. App. 3d 504, 508, 377 N.E.2d 102, 106; see also Van Gerreway, 34 Ill. App. 3d at 514, 340 N.E.2d at 31.) Because plaintiff was found guilty of both personally disposing of seized property and insubordination, dismissal is entirely proper.

We find the evidence sufficient to sustain the trial court’s decision and that no error was committed in its affirmance of the Board’s decision. Accordingly, the judgment of the trial court as to all issues is affirmed.

Judgment affirmed.

McNAMARA and EGAN, JJ., concur.


author: JUSTICE O’CONNOR JUSTICE MANNING,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CARL HARMON, Defendant-Appellant.
    First District (1st Division)
    No. 1—86—2952
    Opinion filed January 22, 1990.
    Rehearing denied March 9, 1990.

      Richard S. Kling, of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, James Fitzgerald, and Charles E. Antonietti, Assistant State’s Attorneys, and Michael Brychel, Law Student, of counsel), for the People.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Following a jury trial, defendant, Carl Harmon, was found guilty of murder, battery and mob action and sentenced to 40 years’ imprisonment. In this appeal, the issues presented for review are: (1) whether the trial court erred in joining the offenses of mob action, battery and murder for trial; (2) whether defendant was proved guilty of murder beyond a reasonable doubt; and (3) whether the trial court erred in permitting the State to call certain witnesses against defendant in the presence of the jury when both the prosecution and defense knew that the witnesses would invoke the constitutional privilege against self-incrimination.

On August 20, 1983, the murder victim, James Kevin Jackson (Kevin Jackson), went to a party on Dodge Street in Evanston, Illinois, with a friend, in Jackson’s foster mother’s 1976 maroon Nova. Also at the party were defendant Carl Harmon, David Thomas, Tyrone Patterson and Juan McCune. Defendant, Thomas and Patterson were members of the Vice Lords, and McCune was a member of the Stony Hoods, a gang aligned with the Vice Lords. Jackson was allegedly a member of the Black Mobsters, a rival gang. A fight broke out at the party between the Black Mobsters and the Vice Lords.

Following the party, defendant, Thomas, Patterson and McCune walked toward the 1623 Club, a Black Mobster “hangout,” located on Dewey and Simpson Streets in Evanston. Melvin Smith and Andre Brown, both members of the Black Mobsters, were on the sidewalk by the 1623 Club when they were jumped and beaten up by defendant, Thomas, Patterson and McCune. Defendant was identified by Thelma Clark, who witnessed the fight. After the attack on Smith and Brown, defendant and the three other men walked to Patterson’s house, one block away from the 1623 Club, where McCune hid a knife under a brick in front of the house. They then went to Thomas’ house on the east side of Dewey Street, where they sat in front of the house talking.

A four-door Nova drove by, stopped at the corner and backed up. Defendant went up to the car and saw the driver, Jackson, whom he knew to be a Black Mobster. Defendant and Patterson began hitting Jackson from the back seat, while Thomas and McCune began hitting Jackson from the driver’s side. Jackson got out of the car on the passenger side, swung at Patterson and fell to the ground. According to McCune’s testimony, defendant continued to kick Jackson in the head and side for approximately 10 to 15 minutes, repeatedly forcing Jackson’s head against the curb. Defendant and Patterson then put Jackson in the back seat of the car. McCune got in the driver’s seat, and Thomas rode in the front passenger seat. They drove to the dead end of Dewey Street, where they dragged Jackson out of the car to a puddle and pushed him in face first. While Jackson struggled for air, defendant allegedly said, “get up or die.”

McCune then reportedly left in Jackson’s car to retrieve his knife from Patterson’s house. After retrieving the knife, he turned the corner at Dewey and Payne Streets, where Melvin Smith and another Black Mobster shot at the car. McCune then abandoned the car by some railroad tracks and went home.

Nancy and Laquita Adams, who lived at 2112 Dewey Street, testified that at about 3 a.m. on August 21, 1983, they were looking out the front window of their house. They saw a car parked outside and some men around the car. They also heard thumping and slapping noises and saw the men hitting something. After about five minutes, all of the men got into the car and drove toward the canal. They recognized one of the men as David Thomas. About 10 minutes later, a car pulled up by their driveway and a man got out, walked alongside of their house and then got back into the car. As the car travelled north on Dewey, Nancy heard some shots being fired.

After the car was found abandoned, it was processed by an evidence technician. The officer found a bullet hole in the rear window and a brownish-red stain on the back seat. Ten latent prints were also recovered from the car.

Officer Michael Gresham, a gang crimes investigator with the Evanston police department, was qualified as an expert on gangs. He testified that Jackson’s body was positioned with the left leg crossed over the right leg with the hands extended over the head in a “V” shape, which he described as a Vice Lord “calling card.” Officer Gresham stated that he had known defendant for six or seven years and believed him to be a member of the Vice Lords. Defendant had a top hat, cane and the initials V.L., which are Vice Lord symbols, tattooed on his right arm. On his left arm was tattooed the word “Mo-jack,” which means “enforcer.” On cross-examination, Officer Gresham admitted that he was not aware that Nancy and Laquita Adams had seen only three people by the car the night of the incident when he obtained four arrest warrants.

At trial, but outside of the presence of the jury, the State informed the court and opposing counsel of its intention to call Tyrone Patterson and David Thomas as -witnesses. Defense counsel objected on the grounds that Patterson and Thomas both intended to invoke their fifth amendment right. Patterson had previously testified at his own trial but Thomas had not. The trial court thereafter permitted the State to call both men as witnesses in the jury’s presence but told the jury that the State was precluded from calling the codefendants as witnesses. The trial court also informed defense counsel that they could make an objection that would be sustained. Following the denial of a motion for a directed verdict, the defendant presented his case.

Officer Mitchum of the Evanston police department testified that Andre Brown first told him that he had been hit only by Tyrone Patterson, but after talking with Melvin Smith and Jeffrey Williams, Brown claimed that Patterson, Thomas, Harmon and McCune had hit him.

Brent Kutrow, a forensic scientist and latent prints examiner, testified that none of the fingerprints found on the car were Carl Harmon’s. Officer William T. Neal, upon being recalled, testified that in his interview with Nancy Adams she told him that there were only three people in front of the house the night of the incident.

Officer Simmons testified that Laquita Adams told him that originally there were five or six people in front of the house, and 15 minutes later, when the car drove up, there were only three people in front of the Thomas house. He further testified that Laquita Adams stated that the three people approached the vehicle from the passenger side, and when they left, one person got in the driver’s door and the other two got in on the passenger’s side.

The defense also called Dawn Shulz, an attorney, who testified that she heard Melvin Smith tell Carl Harmon’s attorney that he had been drinking the night of the incident and never saw who hit him. .

The jury returned verdicts of guilty for each count on the indictment and defendant was sentenced to 40 years for the murder of Kevin Jackson, 30 days for mob action against Andre Brown, 30 days for mob action against Melvin Smith, 364 days for the battery of Andre Brown and 364 days for the battery of Melvin Smith. Defendant now brings this appeal.

Defendant’s first contention is that the joinder of the charges of battery and mob action with the charge of murder constitutes reversible error as it resulted in confusion of the issues and prejudice to defendant. He argues that there is no basis for finding that the gang fight at the party, which preceded the battery and mob action charges, was part of a common scheme including the murder of Kevin Jackson that would warrant joinder of the charges. We disagree.

The joinder of related prosecutions is governed by section 114 — 7 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1985, ch. 38, par. 114 — 7), which provides that separate offenses may be joined if they are part of the same comprehensive transaction. The general test of the appropriateness of joinder is whether the offenses were of a similar nature or were part of a single transaction or common scheme. (People v. Bean (1978), 63 Ill. App. 3d 264, 279, 379 N.E.2d 732.) The most important factors to consider in deciding whether offenses are part of a comprehensive transaction are their proximity in time and location and whether there is common evidence with respect to the offenses. (People v. Reynolds (1983), 116 Ill. App. 3d 328, 335, 451 N.E.2d 1003.) Whether to sever separate charges is a matter within the sound discretion of the trial court (People v. Harris (1986), 147 Ill. App. 3d 891, 894-95, 498 N.E.2d 621), and this court will not reverse that decision absent an abuse of discretion. People v. Mikel (1979), 73 Ill. App. 3d 21, 27, 391 N.E.2d 550.

In light of the record and our decision in the related case People v. Patterson (1986), 140 Ill. App. 3d 421, 488 N.E.2d 1283, aff’d sub nom. People v. Thomas (1987), 116 Ill. 2d 290, 507 N.E.2d 843, aff’d (1988), 487 U.S. 285, 101 L. Ed. 2d 261, 108 S. Ct. 2389, involving accomplices Tyrone Patterson and David Thomas, we decline to find that the trial court erred in refusing to sever the charges for trial. In Patterson, we noted that the murder had occurred “after an evening of violent gang-related incidents.” (Patterson, 140 Ill. App. 3d at 423.) A review of the record substantiates that the charges here are sufficiently related in location, time, motive, design, method and common evidence to support the trial court’s ruling in favor of joinder.

The mob action and battery occurred near the 1623 Club on Dewey and Simpson Streets in Evanston. The beating that culminated in the murder of Kevin Jackson was committed only a few blocks away at 2112 Dewey Street. Joinder is warranted where, as here, there is proximity in the location of the offenses. See, e.g., In re Stokes (1982), 108 Ill. App. 3d 637, 641, 439 N.E.2d 514; People v. Daniels (1976), 35 Ill. App. 3d 791, 798, 342 N.E.2d 809.

The crimes charged also were committed over a short period of time during the early morning hours of August 21, 1983. Defendant was alleged to have attacked Melvin Smith and Andre Brown at about 3 a.m. According to the testimony of witnesses Nancy and Laquita Adams, the beating of Kevin Jackson occurred shortly after 3 a.m. The occurrence of crimes within a close proximity in time supports the trial court’s ruling in favor of joinder. See, e.g., People v. Harris (1986), 147 Ill. App. 3d 891, 894, 498 N.E.2d 621; People v. Key (1975), 28 Ill. App. 3d 637, 640, 328 N.E.2d 914.

The record also amply demonstrates that the mob action, battery and murder sprang from a common motive to attack members of a rival gang. The Vice Lords, with which defendant and his coparticipants were affiliated, were engaged in an ongoing battle against the Black Mobsters. Defendant, along with Patterson, Thomas and McCune, went to the 1623 Club looking for Black Mobsters to attack. After beating up Smith and Brown, they went to Thomas’ house on Dewey Street, only a few blocks away. They let one person pass by on the sidewalk only after determining that the person was not a Black Mobster. When Kevin Jackson stopped his car and was recognized as a member of the Black Mobsters, defendant and the others began to attack him. The thread of gang rivalry running through these incidents and culminating in the murder of Mr. Jackson clearly demonstrates a common design and adds further support to the trial court’s decision to join the charges against defendant. In summary, there is no basis for finding that the trial court abused its discretion in joining the charges against defendant here.

There also is no merit to defendant’s argument that the charges should not have been joined because the mob action and battery were committed against victims other than the murder victim. There is no requirement that the victims be the same, provided the other criteria for joinder have been satisfied. See, e.g., People v. Reynolds (1983), 116 Ill. App. 3d 328, 335, 451 N.E.2d 1003; People v. Mikel (1979), 73 Ill. App. 3d 21, 391 N.E.2d 550; People v. Daniels (1976), 35 Ill. App. 3d 791, 342 N.E.2d 809.

The second issue raised is whether defendant was proved guilty beyond a reasonable doubt. Defendant points to the fact that the only eyewitness to the murder who testified at trial was Juan McC.une, an accomplice who had already pled guilty to concealing a homicide as part of a plea bargain, and whose testimony he contends was uncorroborated and contradicted. Defendant argues that neither the fingerprints found on the car nor the footwear impressions found near the canal were identified as his. He was not identified by the two occurrence witnesses, Nancy and Laquita Adams, and furthermore, at the 1984 trial of Patterson and Thomas, both Nancy and Laquita Adams had testified to seeing only three people hitting something on the ground. They also testified at the prior trial that they saw three people get into the car and drive toward the canal.

The State concedes that no witnesses other than McCune testified as to defendant’s presence at the murder but contends that much of McCune’s testimony was corroborated and that the minor inconsistencies in the State’s case are not sufficient to create a reasonable doubt. The basis for this argument is that McCune’s testimony as to events which preceded the murder was corroborated by the testimony of Jeff Williams, Melvin Smith, Andre Brown and Thelma Clark. The State does not address the absence of testimony, with the exception of that of McCune, regarding the identity or number of those present during the fatal beating of Kevin Jackson. Nor does the State address the repeated references of Nancy and Laquita Adams at the 1984 trial of defendants Patterson and Thomas to the fact that they saw three people doing the beating and three people driving away, which was contra-dieted by testimony in the present trial that they were uncertain how many people were present.

The resolution of defendant’s guilt or innocence, however, turns on the credibility of the witnesses and the weight given their testimony by the jury. (People v. Collins (1985), 106 Ill. 2d 237, 261-62, 478 N.E.2d 267.) Where there is conflicting testimony, it is the jury’s task to resolve the conflicts. (Collins, 106 Ill. 2d at 262.) The jury in the instant case was well advised of the credibility problems inherent in McCune’s testimony. The jury was informed that McCune had lied under oath, that he had a substantial interest in avoiding incarceration in the same prison as Patterson and Thomas and that his testimony regarding the number of participants in the murder was at odds with the 1984 testimony of the Adamses.

The trial court also instructed the jury on the suspicion that attaches to accomplice testimony and related issues including prior inconsistent statements and prior convictions of a witness. The determinative question therefore, is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789.) Under these circumstances, we conclude that the jury could have found defendant guilty of murder beyond a reasonable doubt.

The final issue raised by defendant is that the trial court erred by permitting the State, in the presence of the jury, to call David Thomas and Tyrone Patterson as witnesses against defendant when both the State and defendant’s counsel knew that both witnesses intended to invoke their fifth amendment privilege against self-incrimination. After the witnesses were called, the trial court announced that the State would be precluded from calling them as "witnesses. In closing argument, the State referred to the preclusion by stating that you cannot “expect to have one Vice Lord testify against another.” Defendant contends that this sequence of events and the State’s commentary created a prejudicial inference that the witnesses had knowledge as to the guilt of defendant but refused to testify. '

Defendant cites People v. Myers (1966), 35 Ill. 2d 311, 220 N.E.2d 297, in which the court held that a trial court did not err in refusing to allow a defendant to call his accomplice as a witness where it was apparent that the accomplice intended to invoke her fifth amendment privilege. The court in Myers focused on the fact that examination of such a witness adds little material evidence and serves only to prejudice the defendant in the eyes of the jury. (Myers, 35 Ill. 2d at 334.) Citing People v. Haran (1963), 27 Ill. 2d 229, 188 N.E.2d 707, and People v. Bennett (1953), 413 Ill. 601, 110 N.E.2d 175, the court emphasized that it has “condemned the practice of calling a co-defendant as a witness where the witness refused to testify, thereby compelling him to claim his privilege against self-incrimination.” (Emphasis added.) (Myers, 35 Ill. 2d at 334.) We recognize that calling a witness to the stand with advance knowledge that the witness will invoke the fifth amendment may constitute error under Illinois law. (People v. Crawford Distributing Co. (1979), 78 Ill. 2d 70, 74, 397 N.E.2d 1362.) However, error occurs only where the State intentionally forces the witness himself to invoke the privilege with the result that an inference unfavorable to the accused is planted in the minds of the jurors. (United States v. Foster (7th Cir. 1973), 478 F.2d 1001, 1004.) Thus the case at bar is distinguishable.

While allowing the State to call defendant’s accomplices and then stating that the State was precluded from calling them may have raised questions in the juror’s minds, so doing does not run afoul of Foster or our supreme court’s ruling in Crawford, in that the witnesses were not called to the stand and forced to invoke the privilege before the jury. No mention was made of the fact that the witnesses intended to invoke their privilege. The jury was informed only that those witnesses could not be called to testify. Moreover, in the instant case the jury already knew that both Patterson and Thomas had been tried and convicted for the same offense for which defendant was on trial. Under the rationale of Namet v. United States (1963), 373 U.S. 179, 10 L. Ed. 2d 278, 83 S. Ct. 1151, any error caused by allowing the State to call these witnesses is harmless in that there was sufficient other evidence at trial to provide the same inference. Namet, 373 U.S. at 189, 10 L. Ed. 2d at 285, 83 S. Ct. at 1156.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed. Pursuant to People v. Nicholls (1978), 71 Ill. 2d 166, 374 N.E.2d 194, and People v. Agnew (1985), 105 Ill. 2d 275, 473 N.E.2d 1319, the State is granted $75 in costs for defending this appeal.

Judgment affirmed.

BUCKLEY, P.J., concurs.

JUSTICE MANNING,

dissenting:

I must respectfully dissent. I would reverse this case and remand for a new trial.

I believe the trial court erred by joining the offenses of mob action and battery with the murder charge and by allowing the State to call the codefendants as witnesses in the presence of the jury, notwithstanding that both parties and the court knew codefendants intended to invoke their constitutional privilege against self-incrimination.

While the decision to sever separate charges is a matter within the sound discretion of the trial court (People v. Harris (1986), 147 Ill. App. 3d 891, 894-95, 498 N.E.2d 551), within the instant factual matrix, it is my opinion that the court abused its discretion. This opinion is based on the weakness of the State’s case combined with the prejudicial joinder of charges that had no common links. The statute provides, inter alia, that there may be a joinder of offenses in a single charge “in a separate count for each offense if the offenses charged *** are based on the same act or on two or more acts which are part of the same comprehensive transaction.” Ill. Rev. Stat. 1985, ch. 38, par. Ill — 4(a).

The majority, in justification for its finding that the court did not abuse its discretion, cites to our previous decision in the related case of People v. Patterson (1986), 140 Ill. App. 3d 421, 488 N.E.2d 1283. The distinction in the facts of these two cases is the relevant consideration that should support an opposite conclusion as to defendant Carl Harmon.

While on the basis of the record there is no doubt that Patterson and Thomas were present both at the 1623 Club and at the scene of the murder, it is less clear that Carl Harmon was present at both locations. The victim of the battery initially was unaware that defendant participated in or was present at the battery and mob action, although other witnesses attested to his presence. The witnesses to the murder saw only three people, and three people had at the time of trial been convicted of the murder — Thomas, Patterson and McCune. McCune, an accomplice witness, was the only person to place defendant at the murder scene. McCune’s testimony is strongly clouded by several factors. He admitted to being a perjurer; he was the recipient of a three-year sentence as opposed to, at a minimum, a 20-year sentence in exchange for his testimony; fingerprints secured from the car of the murder victim were not those of defendant, even though the accomplice witness testified that defendant went to the car and removed the key from the ignition; and most significantly, McCune had told his attorney that he was under the influence of alcohol and drugs when he gave his statement to the assistant State’s Attorney.

In light of the facts as briefly outlined above, it is my view that joinder of the battery and mob action charges with the murder charge was extremely prejudicial and constitutes reversible error. The clear purpose of utilizing the two misdemeanor charges was to demonstrate defendant’s propensity to commit crimes. While such a joinder would be appropriate if it was to show common scheme, plan, design or mo-dus operandi (People v. McDonald (1975), 62 Ill. 2d 448, 455, 343 N.E.2d 489), the gang fight occurring at the party and the murder of Kevin Jackson were not connected in any way. The murder victim was not at the scene of the battery. The two occurrences took place at different locations and at different times and between different people. While it is true that in both incidents gang members of two rival groups were involved, there is no clear cut link insofar as this defendant is concerned.

In light of the potential for confusion by the jury of the facts in each incident, it is my view that the court failed to balance the probative value of the evidence with the degree of prejudice that could result from the admission of other crimes evidence. See People v. Romero (1977), 66 Ill. 2d 325, 362 N.E.2d 288.

While several witnesses testified that Carl Harmon participated in the battery and was earlier in the company of Patterson, Thomas and McCune, and the jurors were well aware that Patterson and Thomas had been convicted of the murder, and McCune of concealing a murder, no inference should be permitted that because Carl committed the misdemeanors and was in the company earlier of Patterson and Thomas and McCune, he likewise committed the murder.

The testimony presented by the State regarding the batteries severely prejudiced defendant because the jury repeatedly heard defendant’s name mentioned in association with men they knew had already been convicted of the victim’s murder.

The defendant’s argument that the probative value of the evidence is outweighed by the prejudice to the defendant and that evidence of separate offenses admitted in this trial would not have been admitted in separate trials is much more persuasive.

The defendant further contends that the court committed reversible error by allowing the State to call the defendant’s two codefend-ants when they had earlier, out of the jury’s presence, indicated they would invoke their privilege against self-incrimination. Our supreme court has steadfastly condemned the practice of calling a codefendant as a witness where the witness has indicated an intent to invoke his or her privilege against self-incrimination. People v. Myers (1966), 35 Ill. 2d 311, 334, 220 N.E.2d 297.

In People v. Myers, the defendant was convicted of murder and sentenced to death after a jury trial. On appeal, the defendant contended that the trial court committed error by disallowing him to call his accomplice as a witness in surrebuttal. The court upheld the trial court’s decision, reasoning that it was apparent to the trial court that the accomplice would invoke the privilege if she were called to the witness stand. The court viewed such a practice as being prejudicial to the defendant while adding little material evidence. Myers, 35 Ill. 2d at 334.

In the instant case, the record reveals that at the time of the trial in the case at bar, while the two codefendants had already been convicted, there was pending on behalf of each one a petition for leave to appeal. The record further reflects that the jury was thoroughly familiar through trial testimony, with the fact that the two codefendants had been convicted and that they both shared the same gang affiliation with the defendant. The trial court acknowledged that it would have been error to allow the witnesses to be called to the stand knowing that they intended to invoke their privilege. Notwithstanding that ac-knowledgement, the court permitted the State to call the witnesses in the presence of the jury, necessitating an objection by defense counsel which was sustained. The court offered no explanation to the jury after announcing that the State would be precluded from calling the witness.

The State argues that it is a sufficient safeguard from any adverse inference if the court precludes such witnesses from having to invoke the privilege in the jury’s presence. I do not believe the cases cited by the State should so narrowly be construed. The State alternatively suggests that if it is error, it is harmless and cites to Namet v. United States (1963), 373 U.S. 179, 10 L. Ed. 2d 278, 83 S. Ct. 1151, which used the rationale that any inference is a mere replication of what the jury has already inferred. In Namet v. United States (373 U.S. at 189, 10 L. Ed. 2d at 285, 83 S. Ct. at 1156), the United States Supreme Court found that the effect of the witness’ invocation of the fifth amendment privilege was minimized by the fact that other evidence adduced at trial provided the same inference. However, what the State fails to point out is that there was a dearth of evidence leading to such inferences in the instant case.

It is my view that any possibility that the jury, by virtue of the State’s actions, could reach an adverse inference constitutes severe prejudice and is reversible error, especially when we consider that the evidence is not in any respects overwhelming and this is a close case at most. The manner in which the State conducted its case in this connection appears to me to have been a flagrant and conscious attempt to structure its case out of adverse inferences predicated on the use of testimonial privilege. Since no explanation was given to the jury after they were called by the State and the court refused to allow them to take the stand, the jury could certainly have logically inferred that the witnesses were willing to testify for the State but that the court was preventing their testimony from being offered. Another logical inference is that the State would not call anyone as a witness who would testify adversely to its interests.

Accordingly, for the foregoing reasons, I would reverse the defendant’s conviction and remand for a new trial.

      Co-defendants Tyrone Patterson and David Thomas were tried for the same offenses in 1984. Those convictions were affirmed. See People v. Patterson (1986), 140 Ill. App. 3d 421, 488 N.E.2d 1283, aff'd sub nom. People v. Thomas (1987), 116 Ill. 2d 290, 507 N.E.2d 843, aff'd (1988), 487 U.S. 285, 101 L. Ed. 2d 261, 108 S. Ct. 2389.