author: JUSTICE BOWMAN

text:
      In re ESTATE OF RAYMOND J. MARKS, Deceased (Carol Marks Jacobsohn, Petitioner-Appellant and Cross-Appellee, v. Jerrold Marks et al., Respondents-Appellees and Cross-Appellants).
    Second District
    No. 2—91—1036
    Opinion filed June 30, 1992.

      Thaddeus S. Gauza, of Freeman, Freeman & Salzman, P.C., of Chicago (Lee A. Freeman, Sr., and James T. Malysiak, of counsel), for appellant.
    Barry S. Rosen, of Sachnoff & Weaver, Ltd., of Chicago (Lowell E. Sachnoff and Joel N. Shapiro, of counsel), for appellees.
   JUSTICE BOWMAN

delivered the opinion of the court:

This case represents another chapter in the sad and bitter saga of the Marks family. Petitioner, Carol Marks Jacobsohn (Carol), the widow of Raymond J. Marks (Raymond or decedent), brings to this court for the second time her case against her and Raymond’s natural sons, and respondents/cross-appellants in this case, Jerrold and Louis Marks. This appeal, like the first one, revolves around the propriety of the marital bequest received by Carol pursuant to Raymond’s will.

The facts underlying the first appeal are set forth well and in detail in In re Estate of Marks (1991), 211 Ill. App. 3d 53 (Marks I) and will be only briefly summarized here. Raymond Marks died in May 1982. His will designated Carol, Jerrold, and Louis as co-executors and beneficiaries of his estate. Under the will Carol was to receive a marital bequest “in a pecuniary amount equal to ¾ (three-fourths) the value of my adjusted gross estate as finally determined for federal estate tax purposes.” The balance of the estate was to be distributed equally to Louis and Jerrold. The will further provided that property distributed in kind to the marital bequest was to be valued at the date of distribution.

The decedent’s estate included stock in 24 closely held corporations. The bulk of these corporations, collectively, constituted the business known as M & R Theaters (M&R). Although M&R, which consisted of a chain of movie theaters, was originally established by Raymond, Raymond’s brother, and Martin Rosenfield, Raymond’s brother-in-law, Raymond himself was the principal officer and prime mover of the company. Eventually, the Marks and Rosenfield families each held a 50% interest in the various M&R corporations. At the time of his death, Raymond alone held a 35% interest in the theaters and properties owned by M&R.

Prior to their father’s death both Louis and Jerrold had worked for M&R for a number of years. When Raymond died the sons essentially took over the management and operation of the business, continuing the practices and techniques they had learned from their father. Between 1983 and 1987 M&R expanded and acquired or established a number of new theaters. The new ventures were funded by loans from those M&R businesses in which the estate held a 35% interest at decedent’s death or through the use of the assets of the businesses as security for bank loans. With minimal exceptions, the Marks family’s interest in the new theaters was held by Louis and Jerrold. While Carol was generally aware of what was going on in the business, she neither actively participated in its management or operation nor received financial data from it.

The IRS valuation of Raymond’s estate, which was necessary in order to determine the amount of Carol’s marital bequest, was not received until October 1985. During 1986, while the estate attorney gathered information and made preparations for distribution of the marital bequest, the principals of M&R decided to sell the business. Although no acceptable buyers were found, developments in the industry in 1986 and 1987 had the effect of increasing the value of the company.

Early in 1987, for the first time, Carol, Louis, and Jerrold all realized that the marital bequest was based on a specific dollar amount. Prior to that time they were of the impression that Carol was to receive 75% of all the assets in the estate. In September 1987 Carol acknowledged receipt of her bequest in the form of cash.

In mid-1988 the Loews Theater chain bought M&R. Jerrold and Louis each received approximately $20 million, which included payment for a noncompetition agreement. Carol, who had held stock personally in M&R prior to Raymond’s death, received approximately $5 million. Louis and Jerrold continued to work for M&R, receiving their salaries from Loews.

In April 1989 Carol successfully moved the court for an order protecting her interest in the estate. The following August she filed a complaint against her sons, alleging, among other things, that Louis and Jerrold, as dominant executors of Raymond’s will, had violated their fiduciary duties to her. Carol asserted that her sons had manipulated both the timing and the substance of the distribution of estate assets to her marital bequest, to her detriment and their benefit, and had improperly used estate assets for personal gain. She again asked for court protection of her interest in the estate assets. Following a bench trial, the court denied Carol the relief she requested, holding essentially that Jerrold and Louis had not violated their fiduciary duties. Carol appealed.

In our prior opinion (Marks I) we found that, as dominant executors, Louis and Jerrold had a fiduciary relationship with Carol. Because of this relationship the transactions involving estate assets by which Louis and Jerrold, but not Carol, had profited, were presumptively fraudulent. The presumption could be rebutted by clear and convincing proof that Carol had competent and independent advice before she consented to or acquiesced in the transactions. Louis and Jerrold, however, were not able to produce such proof with regard to the timing of the distribution of assets, the method of funding the marital bequest, or the use of estate assets for acquisition of new properties for their own benefit. Absent rebuttal of the presumption, we held that the marital bequest had to be set aside and reassessed.

We remanded the case to the trial court with 12 specific directions. For the most part the directions pertained to the preparation of various accountings, inventories, statements of assets and liabilities, and statements of receipts and distributions of income of the estate; the gathering of information on the extent of the estate’s present or former interest in the M&R Theater chain and the sale of M&R to Loews; and the determination of Louis’ and Jerrold’s interest in the M&R properties acquired through the use of estate assets. The concluding direction stated “[t]hat, based upon the resulting determinations, the court direct, supervise and allocate the distribution of the assets and the liabilities of the estate and the probate proceedings in this cause be terminated by a proper final account and report.” Marks, 211 Ill. App. 3d at 70.

On remand, the court’s appointed independent accountant, Arthur Andersen & Company, along with the parties, provided information in compliance with our directions. The parties also submitted briefs regarding reassessment of the marital bequest and allocation of estate assets and liabilities in light of our rulings. Finally, the court heard oral argument from the parties on the issue of reassessment of the marital bequest.

The trial judge, Judge Santi, interpreted Marks I as calling for a constructive and equitable redistribution of estate assets in order to rectify the presumptively unfair distribution Carol had previously received. In accord with the perceived directive, Judge Santi noted that Raymond’s will called for a marital bequest in the specific pecuniary amount of $2,823,269. He then determined that the constructive date of distribution of the bequest should be December 31, 1986, and that the constructive distribution should consist of both cash and in-kind assets, subject to the pecuniary amount formula set forth in the will. Specifically, the judge found that half of the bequest should be paid in cash and half in the form of a uniform percentage, or “slice,” of each noncash asset which existed in the estate as of December 31, 1986. Thus, Carol was to be credited with $1,411,634.50 to be paid in cash and another $1,411,634.50 to be paid in the form of noncash assets. Calculation of the uniform percentage of the noncash assets was directed by the court as follows:

“In order to determine the percentage of each non-cash asset to be transferred to Carol, Arthur Andersen and Company will determine the fraction, the numerator of which is to be $1,411,634.50 and the denominator of which is to be the total value of all in-kind non-cash assets in the Estate as of December 31, 1986 ***.”

The resulting fraction of each noncash asset was then to be distributed to Carol out of the estate. In addition, Carol was to return to the estate one-half of the prior, all-cash bequest she had received. That amount was in return for the noncash assets to be distributed to her. The money was to be repaid with interest, and the cash adjustment necessary for compliance with the order was to take into account a gift Carol had made to Louis and Jerrold in the amount of $574,358. The gift had originally been deducted from the all-cash bequest payment originally made to Carol.

Arthur Andersen & Company was directed to determine the value of the assets in the estate as of December 31, 1986, and to include in the assets the theaters which were acquired or newly established by means of loans or credit from the estate and which were in existence as of December 31, 1986. The theaters were to be valued to the full extent of the Marks family’s interest in them. That is, Louis and Jerrold’s personal interests in the theaters (along with Carol’s minor interest in one of them) were to be disgorged into the estate, and Carol would receive the same uniform percentage of those interests that she received in all the other noncash assets of the estate. The court specifically excluded from the assets to be valued those theaters acquired after the distribution date of December 31,1986.

Carol was also awarded additional sums necessary to provide her with the benefits of ownership, including income and interest, as if she had received the in-kind assets on December 31, 1986. She was not entitled to any portion of salary compensation paid by Loews to Jerrold or Louis or to the payment made by Loews to Jerrold and Louis personally for their agreement not to compete.

At the conclusion of the parties’ arguments and the recitation of the court’s findings and conclusions, Judge Santi made a Rule 304(a) (134 Ill. 2d R. 304(a)) finding that there was no just reason to delay appeal of his order. He also stayed the completion of the calculations necessary to proceed with the distribution of estate assets, pending the outcome of appeal.

Carol asserts on appeal, as do Jerrold and Louis on cross-appeal, that the trial court misinterpreted our rulings in Marks I with regard to the reassessment of the marital bequest. Both parties attack the date set for constructive distribution, the method used to fund the constructive distribution, and the court’s treatment of the various theater interests acquired after Raymond’s death. Carol further asserts that the trial court erred in finding that she made a gift to Lords and Jerrold and in requiring her to pay interest on the cash she was required to return to the estate. Carol urges this court to directly order the proper constructive distribution.

Before we begin our discussion of the issues raised by the parties, we find it necessary to make a number of observations. The first matter is technical in nature and has to do with the parties’ use of footnotes in their appellate briefs. Supreme Court Rule 341(a) (134 Ill. 2d R. 341(a)) states unequivocally that the appellant’s and appellee’s briefs, unless otherwise authorized, shall be limited to 75 pages and reply briefs to 27 pages. The rale further states that “[n]either narrow margins nor any other device shall be employed to evade the page limitation. Footnotes, if any, shall be used sparingly.” 134 Ill. 2d R. 341(a).

Appellant’s brief in this matter consists of 39 pages and 12 footnotes. Appellees’ brief is 72 pages long and contains a total of 61 footnotes. Appellant’s reply brief, which is 24 pages in length, includes 9 footnotes, and appellees’ 27-page reply brief includes 27 footnotes. This is a total of 109 footnotes, 88 of them attributable to appellees alone! We note also that in appellees’ brief in particular, the footnotes sometimes take up as much as one-third to one-half of the space on a page. This is not what we would characterize as the “sparing” use of footnotes. Neither party moved to file a brief in excess of the rule’s limitations, perhaps because such “[mjotions to allow additional pages are not favored” (134 Ill. 2d R. 341(a)). However, the “footnote” approach to getting around the page limitations is a violation of the spirit, and probably of the letter, of the law and is not favored, either.

The second item we address pertains to procedure. In the course of explaining in her reply brief why she did not provide for deduction of debt repayment and related expenses incurred in the sale of the theaters to Loews, petitioner refers to certain balance sheets provided to her by respondents. The balance sheets and accompanying letter are attached to petitioner’s reply brief, and petitioner’s discussion appears to revolve around the balance sheets. However, as far as we can discern, and as respondents claim, the letter and documents were never presented to the trial court, are not part of the record on appeal, and, therefore, are not properly before us. Accordingly, on the court’s own motion, the letter and balance sheets attached to petitioner’s reply brief and labeled “Exhibit C” are stricken and will not be considered further.

With our procedural concerns out of the way, we turn our attention to the substantive issues. Both parties disagree with the way the trial court interpreted Marks I. As we discussed above, the lower court concluded that we had determined the original bequest to be presumptively unfair and, therefore, had remanded so the trial court could devise an equitable way to reassess and determine the bequest and then make sure the estate assets were distributed accordingly.

Carol contends that after Marks I there was nothing left to reassess, that our prior opinion told the lower court everything it needed to know and do. She argues that the trial court simply should have followed our directions rather than embark on an independent reassessment of the bequest. Carol strenuously objects that the court wholly lacked the discretion to make such a reassessment.

Louis and Jerrold, on the other hand, challenge the trial court’s conclusion that in Marks I we conclusively determined that the original marital bequest distribution was not fair to Carol. They posit that our rulings were based on a finding, not that the marital bequest transaction was actually, substantially unfair, but that they had not carried their burden of showing by clear and convincing evidence that Carol had received competent independent advice. They argue that the bequest distribution could have been fair despite the lack of such advice to Carol. Respondents maintain that the trial court, rather than starting with a presumption of unfairness, should have determined whether Carol was treated fairly even though she did not have proper advice. We do not entirely agree with either of the parties.

In Marks I we relied on Dombrow v. Dombrow (1948), 401 Ill. 324, where the court said that, when there is a fiduciary relationship between the parties, and only the dominant party profits from a transaction between the parties, the law presumes the transaction was fraudulent. While the presumption is rebuttable, if it is not rebutted, the transaction will be set aside in equity. We found that Louis and Jerrold had not carried the burden necessary to rebut the presumption. In other words, respondents had not been able to adequately show that their relevant dealings with Carol were fair to her. Consequently, the presumption that Carol had been treated unfairly remained intact. That is why we set aside Carol’s marital bequest.

Louis and Jerrold’s position misapprehends our decision in Marks I. What respondents seek is to show that, even without independent advice to Carol, the transactions were fair. We have already determined, however, that, absent objective advice, the transactions will be presumed unfair. Louis and Jerrold seek a second opportunity to overturn the presumption. This is something to which they are not entitled.

With regard to Carol’s argument, we disagree that the trial court lacked discretionary powers. Carol reads more into Marks I than we placed there. In the prior case we found that the relevant transactions were presumed to be unfair, and, while we did not expressly state it, we clearly inferred that Louis and Jerrold, therefore, had breached their fiduciary duties to Carol. The inequity in the funding and timing of the marital bequest, and the respondents’ use of estate assets for personal gain, required that the bequest be set aside. For the most part, our focus in Marks I was on the lack of fairness to Carol. Our final conclusion was that the entire matter of the marital bequest had to be done again, this time assuring that Carol was treated fairly.

In our directions we instructed the trial court to appoint an independent accountant to prepare pertinent information on the estate itself and to make a number of specific determinations which would be relevant to the amount and content of the bequest to be made to Carol. We also directed the parties to prepare and provide specific information regarding the income and past and present assets of the estate, as well as the distributions previously made to Carol as her marital bequest. We concluded with a directive to the trial court that “based upon the resulting determinations,” it should “direct, supervise, and allocate” the distribution of the estate assets and liabilities. (Marks, 211 Ill. App. 3d at 70.) Through this language we placed the nuts and bolts of the task of fashioning an equitable marital bequest squarely on the trial court.

In the body of our Marks I opinion we established that the goal was to reach a fair and equitable result. We also attempted to provide guidelines for the trial court to follow in pursuit of that goal. Through the directions we tried to assure that the trial court would have the tools, in the form of information, that it needed to progress toward a proper disposition. That is where we stopped. We did not ascertain the specifics of the bequest. Rather, at that point, we placed the entire matter in the capable hands of the trial court. Since the remedy to be achieved was equitable in nature, we fully expected the lower court would exercise its discretion where necessary, keeping in mind all that we had said in Marks I.

Contrary to Carol’s insistence otherwise, we did not determine that the distribution should be made as of a time shortly after October 1985, which is when the IRS estate tax liability letter was received. It is true that we discussed the testimony of James Trapp, Carol’s expert witness, in relation to the timing of the distribution and that the overall thrust of our discussion was that things might have been done differently if Carol had had the independent counsel she should have had. Nowhere, however, did we find conclusively that, in order to be fair, the distribution to the marital bequest had to constructively occur shortly after receipt of the IRS letter. Nor did we determine, as Carol also insists, that the distribution had to be all in kind. While we made clear that the theater stock, as an estate asset, had to be considered in reassessing the marital bequest, at no point did we find that fairness demanded a total, in-kind distribution. In this regard we note that section 5.02(g) of the decedent’s will expressly authorized the executors to distribute the estate “in cash or in kind or both.” There is no basis for Carol’s claim that, under Marks I, the bequest had to be totally in kind.

Having decided that the trial court was expected to exercise its discretion on remand after Marks I, we next address the various ways in which the parties claim the lower court abused its discretion. A decision left to the discretion of the trial court will be disturbed on review only if there has been an abuse of discretion. (In re Estate of Wiese (1989), 178 Ill. App. 3d 938, 942.) In determining if the trial court has abused its discretion, the question is whether the court acted arbitrarily without the use of conscientious judgment, or exceeded the bounds of reason and ignored established principles of law so that substantial injustice resulted. (In re Marriage of Lee (1979), 78 Ill. App. 3d 1123, 1127.) In other words, discretion is abused where no reasonable man would take the view adopted by the trial court. In re Marriage of Getautas (1989), 189 Ill. App. 3d 148, 153; Lee, 78 Ill. App. 3d at 1127.

Before we resolve the “abuse of discretion” questions, we must comment on a matter which, although no longer really an issue, is raised by Carol and vehemently challenged by Louis and Jerrold. Throughout her brief Carol repeatedly, over and over again, states, implies, and infers that Louis and Jerrold acted in bad faith. The record reveals that the trial court expressly found to the contrary. In Marks I we set forth examples to show that Jerrold and Louis “did not realize or understand their duties in the position they occupied” {Marks, 211 Ill. App. 3d at 63). Further, we expressly stated that, by ruling that respondents had not met their burden of proof, “we do not hold that Jerrold and Louis actively misled Carol.” (Marks, 211 Ill. App. 3d at 67.) We believe this issue has been considered and resolved. Neither we nor the trial court could discern in the record a basis for finding any intentional wrongdoing by Louis or Jerrold. Our present review has not changed that perception. Hence, despite Carol’s dogged persistence in returning to the subject, we decline to consider it again.

Returning now to the issues, both parties complain of the date selected by Judge Santi for the constructive distribution. Carol wants it set earlier on the ground that, had she received the bequest in the form of theater stock in a timely fashion, she would have enjoyed the benefit of appreciation in the stocks’ value, as did Louis and Jerrold. She urges that the correct time would have been shortly after receipt of the IRS estate closing letter in October 1985. Louis and Jerrold prefer that the constructive date be the same as the actual distribution date of August 5, 1987. The trial judge rejected the suggestions of both parties and chose what we agree is a reasonable date.

First of all, there is no evidence that Louis and Jerrold deliberately delayed the distribution date after the IRS letter was received. What the evidence does show is that the estate was not ready for distribution before the end of 1986. The estate attorney worked throughout 1986, and even into early 1987, to prepare for distribution. Correspondence in the record reflects Jerrold’s full and prompt cooperation with the attorney in this process.

Further, according to the record, it was only at the end of 1986 that any of the beneficiaries — Louis, Jerrold, or Carol — became aware that the bequest was a pecuniary amount rather than a fractional amount of all the estate assets. Thus, it was only then that they could have realized that the bequest could be all cash, as opposed to a portion of all the assets, whether in-kind or cash. It is noteworthy, with regard to Louis and Jerrold’s intentions, that they did call a meeting shortly after learning of the pecuniary nature of the bequest, on March 9, 1987, to discuss funding the bequest. Nevertheless, as Judge Santi observed, there is no doubt that Louis, and particularly Jerrold, were more knowledgeable about business in general, and the family business in particular, than was Carol. Consequently, they were well aware of the ongoing financial status of the assets in the estate and the meaning of the requirement in Raymond’s will that in-kind assets distributed to fulfill the marital bequest were to be valued as of the date of distribution. This knowledge enabled respondents to grasp the significance of the various methods of funding the marital bequest and to understand the consequences of further delay of the distribution. In light of their awareness of all these factors, Louis and Jerrold should have funded the bequest as soon as they learned of the nature of the marital bequest, in December 1986.

The trial court also heard evidence from James Trapp, Carol’s expert witness, on the matter of timing. Although Trapp’s testimony indicated that he thought Carol’s bequest should have been funded, for the most part, earlier than the end of 1986, he testified on cross-examination that there is no exact time for distribution of an estate’s assets, that it depended on all the facts. He also admitted that he could think of facts and circumstances in which 12 months after receipt of an IRS closing letter would not be too long to delay distribution.

In summary, in light of all the evidence presented at trial, we do not believe the trial court abused its discretion by choosing December 31, 1986, as the date for constructive distribution. We cannot say that no reasonable person would have chosen that date.

Both parties next contend that the trial court also abused its discretion by funding the marital bequest with 50% cash and 50% in-kind assets. Carol asserts that the entire constructive bequest should consist of in-kind assets. She urges that at the time the distribution should have taken place (according to Carol, shortly after October 1985) the IRS valuations were still equal to current market values and, therefore, she would have received 75% of the assets. Since the bulk of the assets were in the form of theater stocks, she would have received all stock. Louis and Jerrold, on the other hand, maintain that an all-cash distribution was appropriate because it was consistent with the needs, interests, and financial objectives expressed by Carol at the time and reflective of the advice she actually received. Once again, we agree with the trial court.

To begin with, we have already decided that Judge Santi exercised proper discretion in selecting a distribution date of December 31, 1986. What the IRS valuation would be, compared to market values at that time, we cannot tell. However, even if they were the same, Carol would still not necessarily be entitled to a 100% in-kind distribution. Her position ignores the provision in the will whereby the bequest could be funded with cash, in-kind assets, or a combination of the two. Obviously, there was no way for the trial court to know for sure which kind of funding Carol would have chosen if she had had objective advisors in December 1986. Hence, pursuant to Marks I, the court had to devise an equitable method of funding Carol’s bequest.

Carol argues that the trial court simply adopted the distribution method suggested by Louis and Jerrold. While it is true that, in their trial brief on remand, respondents proposed the “slice” method of distributing in-kind assets to Carol, Judge Santi made abundantly clear that he had reached his determination, independently, before receiving respondents’ brief. Carol further argues that, in any event, the distribution chosen by the trial court is arbitrary and based on improper considerations. In rendering his decision, Judge Santi emphasized our statements in Marks I that we had not found Louis and Jerrold’s conduct to have been willful. The judge then indicated that he sought a result which would be fair and equitable to all the parties. It is clear from his further comments that, in order to achieve such a result, Judge Santi attempted to balance the equitable considerations favoring Carol, as expressed in Marks I, against the equitable considerations favoring Louis and Jerrold, as revealed by the trial evidence.

The evidence showed that Carol, who was wealthy in her own right, had established a pattern of preferring conservative investments in her own financial affairs. She invested primarily in high-grade, low-risk vehicles, such as treasury bills, fixed income bonds, and tax-free municipal bonds, or in highly liquid investments such as money market funds. Although it was offered to her, Carol declined to invest in the equity in most of the new, and riskier, ventures of M&R. Also, the record reflects that estate planning was important to Carol in order to maintain the wealth her husband had accumulated for the benefit of her children and grandchildren. Similarly, Carol seemed to want Louis and Jerrold to take over ownership of the business. For example, she continued her husband’s practice of giving Louis and Jerrold gifts of shares of her personal M&R stock. And, although she received ample income from the M&R stock she owned personally, as we mentioned, she did not want stock in the new theaters. In fact, Louis testified that she offered to loan money to himself and Jerrold if they needed it in order to make a capital contribution for some of the new theaters. Carol expressed that, since she was not participating in running the business, she did not wish to take a share of the theaters herself. As for the running of the business, the evidence is clear that it was Louis and Jerrold who managed it and operated it. For the most part they continued the policies and procedures begun by their father. It was they who expanded it and made it successful or withstood its failures. Carol was not actively involved with any aspect of the business.

Collectively, the evidence seems to show that in December 1986 Carol almost certainly would have taken a significant portion of her bequest in cash, no matter what advice she received. On the other hand, despite Louis’ and Jerrold’s contrary opinions, an independent advisor, knowledgeable about the stocks in the estate and the businesses represented by those stocks, might well have been influential in persuading her that at least part of her bequest should be taken in kind. If she were so persuaded, it is unlikely, judging from the evidence, that she would have taken more than half of what was due in the form of stock, first, because of her general reluctance to invest in higher risk equity investments and, second, because of her inclination to shift the business into Louis’ and Jerrold’s hands.

Added to the evidence of what Carol would have done under ideal circumstances is the evidence that Louis and Jerrold devoted themselves to the family business, contributing greatly to its success and increased value. Finally, the conclusion that Louis and Jerrold did nothing to willfully or deliberately take advantage of their mother for their own benefit must be taken into consideration. They failed to act on their duties out of ignorance, not a malicious spirit.

In the light of all that was known to the trial judge, we conclude that he exercised his discretion wisely. His decision reflects a realistic view of what was fair to Carol. Louis and Jerrold meant their mother no harm when they urged her to take a cash bequest. Nevertheless, she now will constructively have half of that bequest in theater stock, stock which accrued in value in great part due to the efforts of her sons. To have given Carol more than she likely would have taken herself would have been unfair and in the nature of a punishment to Louis and Jerrold. They would thus have been deprived of something for which they worked very hard and most likely would have had except for an honest mistake. Equity is about fairness, not punishment. Under the trial court’s solution, Carol will get what she probably would have sought in the first place and Louis and Jerrold will have to give up that same amount to Carol to make up for their error. The court needed to go no further to achieve an equitable result. Once again, we cannot say that no reasonable man would take the view adopted by the trial court.

Both parties challenge the trial court’s rulings on the next issue we address. After Raymond died, but before December 31, 1986, M&R acquired the Fine Arts, Hyde Park, and Evanston theaters. After December 1986 the company built the Webster Place and River Run theaters. These are the theaters that were financed in part with loans from, or credit secured by the assets of, the M&R businesses in which the estate held a 35% interest. Jerrold and Louis, personally, held all of the Marks family’s interest in all of the new theaters, except for a 10% interest Carol took personally in the Fine Arts. No equity in the theaters was offered to the estate. Judge Santi ordered that 100% of the Marks family’s interests in the theaters acquired before December 31, 1986, should be disgorged into the estate and calculated into Carol’s marital distribution along with all the other non-cash assets. The theaters built after the constructive distribution date were not included in the order.

Carol insists that the respondents’ interests in all of the theaters should have been deemed to be part of the estate since the M&R companies helped acquire all of them. Louis and Jerrold counter that none of their interest in the five theaters should be included in the estate because they did nothing so wrong as to warrant such a drastic remedy. They characterize Judge Santi’s order as unfair to them and a windfall to Carol. Alternatively, Louis and Jerrold contend that, if disgorgement is required, it should be measured by the estate’s imputed contribution to funding the new theaters.

The matter of the two theaters acquired after December 31, 1986, is easily resolved. We have affirmed that December 31, 1986, is to be the date for constructive distribution of the marital bequest. Once Carol has received her bequest in full, there remains only the residual estate which was left to Louis and Jerrold. Thus, from December 31, 1986, forward, Louis and Jerrold are the only beneficiaries of Raymond’s will, and what they do with the residual estate assets is of no concern to Carol. She is not entitled to any interest in the theaters acquired after she received her bequest.

As for the remaining theaters, Louis and Jerrold did benefit from intercompany lending in that they acquired ownership in the new theaters. It is also true that respondents did not offer similar benefits to the estate. However, they did not directly use estate assets in the relevant business transactions. The assets used were those of the old M&R theater companies. The estate had an interest in the transactions only in its capacity as a shareholder in those M&R companies. This connection is far more tenuous than the usual situation where the fiduciary, for his own benefit, takes or uses the assets actually belonging to the estate or trust. See In re Estate of Swiecicki (1985), 106 Ill. 2d 111, 118-19.

Moreover, the evidence indicates that Louis and Jerrold’s failure to offer to the estate the opportunity for ownership in the new theaters was totally unintentional. Louis testified that it never occurred to him that such an offer should be made. This lack of concern is understandable in light of the fact that Louis and Jerrold were essentially continuing a practice begun by their father. They viewed the intercompany transactions strictly as business, a practice which facilitated expansion and, in turn, benefited the old companies as well. Also, as each new theater opportunity came along, Louis and Jerrold offered Carol an equity interest. With the exception of the Fine Arts theater, Carol declined the offers. Hence, Louis and Jerrold had no reason to think the estate should also be offered an equity interest.

Louis and Jerrold were not benefiting at the expense of the estate. In fact, ultimately they were probably helping the estate. The breach of duty which occurred here was not deliberate and not done out of an attitude of self-profit. And it was not blatant or egregious. The estate itself was remote from respondents’ conduct and affected only indirectly. Under these circumstances we believe it would be unfair to demand that Louis and Jerrold return their entire interest in the three pertinent theaters to the estate. The result of such a demand would be an unwarranted windfall to Carol. We agree with Louis and Jerrold that it is necessary to return only the interest equal to the estate’s imputed participation in the financing of each new theater. Upon remand the trial court will determine a method for calculating the precise extent of that interest.

Carol next challenges the trial court’s findings regarding a gift from her to Louis and Jerrold. The court originally found that Carol had made a gift to her sons of the balance of the marital bequest remaining after she had received a payment on it. Because the court did not determine the amount of the gift, in Marks I we directed it to do so. The trial court then found that the gift was in the amount of $574,358. Carol now posits that we set aside the gift when we set aside the marital bequest and that the trial court erred in restoring it on remand. Carol’s position is not well-founded.

Our direction in Marks I is “[t]hat the trial court ascertain the amount of the gift referred to” in the court’s earlier order. (Marks, 211 Ill. App. 3d at 70.) This was not a setting aside of the gift. On the contrary, it was an affirmance of the court’s finding that a gift had been made and a charge to find out the amount of the gift. This information was then properly used by the trial court to help determine a fair marital bequest for Carol.

With regard to Carol’s complaint that she should not have to pay interest on the cash she is required to return to the estate, we can see no justification for her position. Carol will receive her constructive distribution half in cash, half in-kind as of December 31, 1986. The in-kind assets will replace the cash she must return to the estate. Since Carol will also receive interest, income, and any other benefits of ownership of the constructive distribution from December 31, 1986, forward, the interest she has been earning on the cash she originally received must also be returned. To award her all the income and interest benefits of the constructive distribution, and allow her to keep the interest from the actual distribution also, would be an unwarranted windfall. The trial court was correct in requiring her to pay interest on the money to be returned to the estate.

The final point we must discuss is Carol’s suggestions as to how this matter should be handled on remand. Apparently unhappy with Judge Santi’s resolution of the parties’ dispute, Carol first urges that this court “should itself fashion a full remedy” for her. Alternatively, she urges that, for purposes of supervision and administration of the distribution and closing of the estate, the case should be remanded to a different circuit judge. This request is baseless.

Carol attacks the trial court, not so much on the basis that it demonstrated prejudice directly against her, but that the probate judge expressed prejudice by his “willful disregard” of this court’s rulings in Marks I. She claims that the trial court “ignored” the law, “evaded” and attempted to achieve a “backhand reversal of” Marks I, “disparaged” and “in no instance sought to comply” with our directions. Moreover, according to Carol, the probate court appeared “prejudicially determined to relieve Louis and Jerrold of liability,” and the entire point of the 50/50 split employed by the trial court was “to enable Jerrold and Louis to retain *** tainted profits.” These emotion-charged assaults on the trial court are not an accurate reflection of the record and are not well taken.

We have reviewed, from beginning to end, the report of proceedings of this case on remand. What they reflect is a diligent effort by the trial judge to interpret and apply our rulings in Marks I, to explain the rationale for each of his own conclusions, and to be thorough in executing the directions we previously set forth. They also demonstrate a decidedly conscientious endeavor to reach an appropriate and equitable resolution for all the parties to this prolonged and divisive conflict. Carol’s attempt to portray the lower court’s efforts as a flaunting of our authority or an expression of bias in favor of Louis and Jerrold is without foundation and is marked by the twisting and distortion of the record.

It is one thing to challenge a trial judge on the basis of error or abuse of discretion. It is altogether something else to launch a tiresome tirade against him on the basis of prejudice which is not substantiated by the record. We see no reason to take it upon ourselves to fashion Carol’s remedy. Nor is there a reason to remand the matter to a different circuit court judge.

For all of the reasons set forth above, the judgment of the circuit court of Lake County is affirmed except as to that portion which held that 100% of the Marks family’s interest in the Fine Arts, Hyde Park, and Evanston theaters must be deemed to be in the estate. That portion of the judgment is modified to hold that the Marks family’s interest in the named theaters is deemed to be in the estate only to the extent of the estate’s imputed, pro rata participation in the financing of the new theaters. The trial court is directed to determine and execute a method of calculating the percentage of estate participation. That amount of the Marks family’s interest will then be included in the assets of the estate and be subject to the computation of Carol’s marital distribution, the same as the other noncash assets. The trial court is also directed to proceed with preparation of the information called for in the directions given in Marks I and to utilize that information to distribute the assets of the estate in conformity with Marks I and this opinion.

Affirmed as modified and remanded with directions.

GEIGER and DUNN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE RARICK

license: Public Domain

text:
    JOHN PRIOR, d/b/a Prior Oil Company, Plaintiff-Appellant, v. FIRST BANK AND TRUST COMPANY OF MT. VERNON, as Trustee, et al., Defendants-Appellees.
    Fifth District
    No. 5—91—0038
    Opinion filed July 21, 1992.

      Ronald A. Niemann, of Niemann & Parker, of Centraba, for appellant.
    David L. Piercy, of Howard & Howard, of Mt. Vernon, for appellees Darrell Davis, Evelyn L. Davis, Charles Eugene Davis, and Evelyn C. Davis.
   JUSTICE RARICK

delivered the opinion of the court:

Plaintiff, John Prior, d/b/a Prior Oil Company, appeals from the granting of summary judgment by the circuit court of Jefferson County in favor of defendants, Darrell, Evelyn C., Charles Eugene and Evelyn L. Davis, on plaintiff’s claim for a mechanics’ lien against their property. We reverse and remand.

Defendants are the owners of the beneficial interest of a land trust of which First Bank and Trust Co. of Mt. Vernon is the trustee. On October 23, 1987, Terry Flanagan entered into a contract for deed with trustee for the purchase of the real estate comprising the land trust in order to construct a raceway. Pursuant to constructing the raceway, on March 11, 1988, Flanagan entered into an oral agreement with plaintiff for the furnishing of materials and labor to bring the race track into operation. Plaintiff expended some $10,445 in labor and materials but was never paid for the goods and services he furnished. Accordingly, plaintiff brought an action to impose a mechanics’ lien. Defendants moved for summary judgment claiming plaintiff had never provided a sworn contractor’s statement as required by section 5 of the Mechanics Lien Act (Ill. Rev. Stat. 1987, ch. 82, par. 5) so as to perfect or create his lien. The trial court determined plaintiff’s failure to provide the section 5 statement precluded his action for a mechanics’ lien and granted defendants’ motion for summary judgment. On appeal, plaintiff asserts the trial court erred in granting summary judgment in favor of defendants on the grounds he failed to comply with section 5 of the Mechanics Lien Act, especially when defendants were on notice of his claim.

Mechanics’ liens, being wholly a creation of statute, are in derogation of the common law. (First Federal Savings & Loan Association v. Connelly (1983), 97 Ill. 2d 242, 246, 454 N.E.2d 314, 316; Aluma Systems, Inc. v. Frederick Quinn Corp. (1990), 206 Ill. App. 3d 828, 838, 564 N.E.2d 1280, 1287; Suddarth v. Rosen (1967), 81 Ill. App. 2d 136, 139, 224 N.E.2d 602, 603.) As such, mechanics’ lien statutes, affording extraordinary remedies to certain classes of contractors and subcontractors (Suddarth, 81 Ill. App. 2d at 139, 224 N.E.2d at 603), must be strictly construed with reference to all requirements upon which such liens depend (First Federal, 97 Ill. 2d at 246, 454 N.E.2d at 316; Aluma Systems, 206 Ill. App. 3d at 838, 564 N.E.2d at 1287). Once a contractor has complied with the statutory prerequisites, however, the Mechanics Lien Act should be liberally construed in order to carry out its remedial purpose. (First Federal, 97 Ill. 2d at 246, 454 N.E.2d at 316; Aluma Systems, 206 Ill. App. 3d at 839, 564 N.E.2d at 1287.) This purpose is to permit a lien upon premises where a benefit has been received by the owner and where the value or condition of the property has been increased or improved by reason of the furnishing of labor and materials. (First Federal, 97 Ill. 2d at 246, 454 N.E.2d at 316; Abbott Electrical Construction Co. v. Ladin (1986), 144 Ill. App. 3d 974, 981, 494 N.E.2d 1251, 1256.) As our supreme court has stated:

“The doctrine of strict construction was never meant to be applied as a pitfall to the unwary, in good faith pursuing the path marked by the statute, nor as an ambuscade from which an adversary can overwhelm him for an immaterial misstep. Its function is to preserve the substantial rights of those against whom the remedy offered by the statute is directed, and it is never employed otherwise.” (United Cork Cos. v. Volland (1937), 365 Ill. 564, 572, 7 N.E.2d 301, 305.)

(See also First Federal, 97 Ill. 2d at 251, 454 N.E.2d at 319.) Here we have just such a case of a technicality being used to defeat a valid lien. Under the holdings of Abbott Electrical and National Wrecking Co. v. Midwest Terminal Corp. (1992), 234 Ill. App. 3d 750, plaintiff’s failure to give defendants a sworn statement does not operate to bar his mechanics’ lien claim. (National Wrecking, 234 Ill. App. 3d at 763; Abbott Electrical, 144 Ill. App. 3d at 978-79, 494 N.E.2d at 1254-55; see also Ambrose v. Biggs (1987), 156 Ill. App. 3d 515, 518, 509 N.E.2d 614, 616 (failure of both owner and contractor to comply with section 5 will not bar contractor’s mechanics’ lien claim).) Defendants never requested a sworn statement from plaintiff; consequently, the duty to provide them with one never arose. They cannot now defeat plaintiff’s claim merely on this basis alone. (See Abbott Electrical, 144 Ill. App. 3d at 978, 494 N.E.2d at 1254.) Contrary to the position taken by the second district in Malesa v. Royal Harbour Management Corp. (1989), 187 Ill. App. 3d 655, 543 N.E.2d 591, involving solely an action for breach of contract, we believe the owner under section 5 of the Act has more than just the duty to refrain from paying the contractor until he receives the contractor’s sworn statement. Defendants knowingly allowed the work to be done to their property and in so doing recognized a benefit to their land. In order to uphold the remedial purpose of the Mechanics Lien Act, we must agree that the trial court erred in granting summary judgment in favor of defendants on the basis of plaintiff’s failure to provide defendants with a sworn contractor’s statement.

For the aforementioned reasons, we reverse the summary judgment entered by the circuit court of Jefferson County in favor of defendants and remand this cause for further proceedings.

Reversed and remanded.

HARRISON and W. LEWIS, JJ., concur.


author: JUSTICE STOUDER

text:
    THE CITY OF ALTON, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Stephen A. Britt, Appellee).
    Fifth District (Industrial Commission Division)
    No. 5—91—0248WC
    Opinion filed June 2, 1992.
    Rehearing denied August 4, 1992.

      Matthew W. Kelly, of Coppinger, Carter, Schrempf & Blaine, Ltd., of Alton, for appellant.
    William S. Beatty, of Edwardsville, for appellee.
   JUSTICE STOUDER

delivered the opinion of the court:

Claimant, Stephen Britt, filed an application for adjustment of claim pursuant to the Workers’ Compensation Act (Act) (Ill. Rev. Stat. 1989, ch. 48, par. 138.1 et seq.). Claimant sought damages for injuries sustained while employed by the City of Alton (employer). Following a hearing, the arbitrator awarded claimant 20% permanent partial disability to the person as a whole, pursuant to section 8(d)(2) of the Act (Ill. Rev. Stat. 1989, ch. 48, par. 138.8(d)(2)), along with temporary total disability benefits for 28 5/7 weeks.

Claimant subsequently filed a petition pursuant to section 19(h) of the Act (Ill. Rev. Stat. 1989, ch. 48, par. 138.19(h)) seeking an additional 30% of a man as a whole along with further temporary total disability benefits. After a hearing, the Industrial Commission (Commission) awarded an additional 38 1/7 weeks of temporary total disability benefits and an additional 20% of a man as a whole in permanent partial disability benefits. The circuit court of Madison County confirmed the Commission and employer appeals.

The record in the instant case shows claimant, while working as a police officer for employer, was injured in a training exercise, sustaining neck injuries on December 22, 1983. Claimant sought treatment from his family physician, Dr. Raymond Weber. Dr. Weber prescribed a conservative course of treatment of anti-inflammatory drugs and physical therapy. On May 25, 1984, after numerous visits with Dr. Weber, claimant was referred to a neurosurgeon, Dr. Robert Dunn. Dr. Dunn advised claimant to pursue light-duty work and avoid strenuous activity.

Claimant last saw Dr. Weber on November 29, 1984, at which time he was complaining of weakness, and pain and spasms in the right arm. He also complained of having a great deal of difficulty in performing normal activities. Dr. Weber believed claimant suffered a significant neck strain consistent with a possible herniated disc. He then referred claimant to Dr. John Gragnani, a physical medicine and rehabilitation specialist.

EMG testing performed by Dr. Gragnani revealed some damage in the right extensor muscle on the right arm, the muscle supplied by the sixth and seventh cervical nerve roots. Dr. Gragnani put claimant on a series of exercises and, when these did not improve his condition, ordered a CT scan. The CT scan revealed a bulging disc or possible herniation suspected at C6-7 on the left side.

The initial arbitration hearing was held November 28, 1986. Claimant testified that he was suffering from pain in his neck, limitation in his ability to turn his neck, and a variety of other symptoms. Claimant testified he was advised to have neck surgery, but that he declined out of fear that the surgery would be unsuccessful. Following this, claimant had no further medical treatment prior to arbitration.

Following the hearing on arbitration, the arbitrator concluded claimant was entitled to 20% permanent partial disability to the person as a whole, pursuant to section 8(d)(2) of the Act, as well as temporary total disability benefits.

On November 22, 1988, a hearing was held on claimant’s section 19(h) petition. Claimant testified to symptoms he has suffered since the initial arbitration. At the outset, claimant related that he suffers from fierce headaches that have transformed him into “someone living on codeine.” He also described how he now has a more pronounced weakness in his left arm whereas prior to arbitration he had lost strength in his right arm. Claimant noted that this change occurred around January 1986.

Claimant further related that he decided to finally have surgery due to the headaches and various other debilitating symptoms he suffered from. He noted that he feels somewhat stronger since the surgery but still suffers from occasional headaches. He no longer has full range of motion with his neck and sleeps with a neck brace.

Dr. Dennis Mollman, a neurosurgeon who performed surgery on claimant in October 1987, testified at the hearing on review. Dr. Mollman related that he first saw claimant in September 1987 in connection with his admission to the hospital for the myelogram and CT scan. On that occasion, claimant complained of some numbness and intermittent tingling in both his right and left hands, along with pain in his neck and shoulders. After reviewing the results from the myelogram and CT scan, Dr. Mollman concluded claimant had herniated discs at C5-6 and C6-7 and arthritic changes in his neck. As a result, Dr. Mollman had claimant admitted to the hospital in October 1987 for a cervical fusion and discectomy at those levels.

Dr. Mollman further testified that claimant was seen by him for follow-up visits in November and December 1987 and April 1988. Dr. Mollman explained that claimant had no complaints of pain and no sensory deficit as of November 1987. As for the December follow-up visit, claimant stated that the arm and shoulder pain had been resolved as had the numbness in his right hand. Dr. Mollman concluded that claimant was asymptomatic at that time. In April 1988, Dr. Mollman noted claimant continued to have no problems with his neck and upper extremities. As of his last visit to Dr. Mollman’s office, claimant was to return on an as-needed basis and no medication had been prescribed for pain. Furthermore, it was Dr. Mollman’s impression that the surgery performed on claimant was a complete success.

Dr. Phillip George, an orthopedic surgeon, testified on behalf of the employer at the hearing on review. Dr. George examined claimant in May 1985 prior to arbitration and again in August 1988 prior to the hearing on review. At the August 1988 examination, claimant told Dr. George that his condition was improving but that he did have complaints regarding diffuse aching in his left arm along with numbness in his left thumb and index finger. Claimant did not complain of headaches at that time.

Dr. George’s physical examination of claimant revealed some restricted range of motion, of about 30% in all planes, in claimant’s cervical spine. There was no muscle spasm, and claimant had a full range of motion in both upper extremities. Also, his deep-tendon reflexes were present at the elbows, and he had good strength in both hands along with normal intrinsic functioning of both hands.

Dr. George found that claimant was clinically stable and that his condition could improve slightly over the next several months. He also felt claimant was not in need of any further orthopedic care and that claimant could return to work, though not as a policeman.

Dr. George concluded that claimant’s condition had improved between May 1985 and August 1988. He felt that while claimant was having some problems with his left upper extremity, those problems were less severe than the previous problems claimant experienced in his right upper extremity. He testified that the surgical procedure could have caused the symptoms in the left arm, but there was no objective evidence of injury to the left upper extremity. He concluded that the operation was fairly successful.

Initially, we address whether the Commission’s awarding additional permanent partial disability benefits was against the manifest weight of the evidence.

The purpose of a section 19(h) proceeding is to determine whether a claimant’s disability has changed since the time of the original decision by the Commission. (Howard, v. Industrial Comm’n (1982), 89 Ill. 2d 428, 433 N.E.2d 657.) The change in the condition of the claimant must be a material one. Zimmerly Construction Co. v. Industrial Comm’n (1972), 50 Ill. 2d 342, 278 N.E.2d 789.

Employer asserts that it is clear that while claimant’s exact diagnosis was not established at the original hearing, his medical condition, with respect to the herniated discs, did not change between the initial hearing and the section 19(h) hearing, except for the fact that surgery was performed and a precise diagnosis was established. Indeed, Dr. Gragnani was of the impression that the entire diagnosis was not made initially because the technology to make such a diagnosis has improved in the interim and that claimant did not have a sufficient diagnostic workup prior to the initial hearing.

In addition, employer points out that the only two doctors who testified at both the initial hearing and the section 19(h) hearing found that claimant’s physical condition had actually improved following surgery. Dr. Gragnani specifically felt that the surgery was successful in reducing claimant’s symptoms, in improving his physical condition, and in protecting him from further damage to his cervical spine. Dr. George also found a great improvement in claimant’s physical condition following surgery. He noted that this improvement included claimant’s objective findings as well as his subjective complaints.

From this evidence, we find the claimant has not sustained a material increase in his disability justifying the granting of a section 19(h) petition. The record shows that claimant’s complaints of pain, although somewhat different than those articulated at the initial arbitration, have actually improved since the time of the initial arbitration. The medical evidence further reflects that claimant’s physical condition has improved since arbitration. Moreover, there seems to be no dispute among the doctors who testified at the section 19(h) hearing that claimant’s condition has improved and, while the symptoms he now feels may differ from what he felt at the initial arbitration, they are not materially greater than they were at arbitration.

Further, the employer argues the Commission erred in granting additional temporary total disability benefits to claimant. However, we need not address this contention in lieu of our decision regarding partial disability benefits.

For the foregoing reasons, we reverse the judgment of the circuit court of Madison County confirming the Industrial Commission’s granting the claimant’s section 19(h) petition.

Reversed.

McCULLOUGH, P.J., and WOODWARD, H. LEWIS, and RAKOWSKI, JJ., concur.


author: JUSTICE DOYLE

text:
    G.M. SIGNS, INC., Plaintiff-Appellee, v. KIRN SIGNS, INC., Defendant-Appellant.
    Second District
    No. 2—91—1227
    Opinion filed July 10, 1992.

      Cordell P. Schulten, of Lewis, Rice & Fingersh, of Clayton, Missouri, for appellant.
    Michael A. Greenblatt, of Greenblatt & Greenblatt, of Waukegan, for appellee.
   JUSTICE DOYLE

delivered the opinion of the court:

In this breach of contract action, defendant, Kirn Signs, Inc., appeals the trial court’s entry of judgment by default for plaintiff, G.M. Signs, Inc. Defendant’s sole argument on appeal is that the Illinois court lacked personal jurisdiction over defendant, a Missouri corporation. We hold that the trial court properly concluded that defendant was amenable to process under the Illinois “long-arm” statute (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 209).

Plaintiff, an Illinois corporation with its sole place of business in Round Lake, manufactures signs and sells them wholesale. Defendant, whose business facilities are located entirely outside of Illinois, manufactures, erects and installs signage.

On December 7, 1990, plaintiff filed its complaint in the circuit court of Lake County. According to the complaint, plaintiff had manufactured certain merchandise at defendant’s special insistence and request. Defendant received but did not pay for the goods.

Defendant entered a special appearance (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 301) to contest personal jurisdiction. Defendant argued that its mere purchase of goods from the Illinois plaintiff did not establish sufficient contacts between defendant and the forum State where defendant was not incorporated or licensed to do business in Hlinois, had no physical presence in Illinois, negotiated the contracts at issue by telephone and mail, and received and paid for the goods outside of Illinois.

James A. Hobbs, defendant’s president, submitted an affidavit stating the following. Defendant did not have and never has had any office, bank account, mailing address, telephone listing or other business facility in Hlinois. Defendant owned no property in Illinois and had no affiliated entities engaged in business in Illinois. Defendant first ordered merchandise from plaintiff in 1986. Defendant made most of its purchase orders via telephone, with occasional mail orders. Plaintiff delivered all the goods to defendant in Missouri, per the parties’ agreement. Defendant tendered all of its payments upon delivery in Missouri or by mail from Missouri. Hobbs visited plaintiff’s place of business once in the last five years but did not enter into any agreements or place any orders while there. Defendant had no other contacts with Illinois that were related to plaintiff’s suit.

In response, plaintiff submitted the affidavit of its president, George Matiasek, stating the following. Plaintiff did not solicit business through salesmen or advertising but depended solely on word of mouth to obtain new customers. Late in 1986, James Hobbs telephoned Matiasek and expressed a desire for a meeting to discuss a future business relationship between the parties. Early in 1987, Hobbs visited plaintiff’s place of business in Round Lake. In this day-long visit, Hobbs observed plaintiff’s manufacturing facilities, received plaintiff’s catalog, and “discussed all possible aspects of the two companies doing business.” Toward the end of the visit, Hobbs told Matiasek something to the effect that defendant would be doing “a lot of work” with plaintiff.

Matiasek stated further that the parties subsequently did much business. Defendant initiated each transaction by phone call or written purchase order. At defendant’s specific requests, plaintiff manufactured signs and delivered them to defendant “f.o.b. Round Lake, Illinois.”

The trial court denied defendant’s motion to dismiss and later entered a default judgment for plaintiff. Defendant appeals, raising only the issue of personal jurisdiction.

A plaintiff has the burden of establishing a valid basis for jurisdiction over a nonresident defendant. (Poplar Grove State Bank v. Powers (1991), 218 Ill. App. 3d 509, 517.) Plaintiff asserts that personal jurisdiction over defendant exists under section 2 — 209(a)(1) of the Code of Civil Procedure, which states as follows:

“(a) Any person, whether or not a citizen or resident of this State, who in person or through an agent does any of the acts hereinafter enumerated, thereby submits such person, and, if an individual, his or her personal representative, to the jurisdiction of the courts of this State as to any cause of action arising from the doing of any of such acts:
(1) The transaction of any business within this State.” Ill. Rev. Stat. 1989, ch. 110, par. 2 — 209(a)(1).

Subsection (c) of this section, effective September 7, 1989, enables an Illinois circuit court to exercise in personam jurisdiction on “any other basis now or hereafter permitted by the Illinois Constitution and the Constitution of the United States!” (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 209(c).) Although the transaction in question is alleged to have occurred before the effective date of this procedural amendment, defendant does not deny that the amendment applies to this litigation, which was initiated after that date. See Ogdon v. Gianakos (1953), 415 Ill. 591, 597; Ores v. Kennedy (1991), 218 Ill. App. 3d 866, 870-72.

As the language of subsection (c) states (and as defendant appears to concede), an Illinois court may exercise personal jurisdiction over any nonresident as long as the exercise of such jurisdiction offends neither Federal nor State guarantees of due process. (People ex rel. Hartigan v. Kennedy (1991), 215 Ill. App. 3d 880, 887-90.) Federal due process requires that the defendant have such “minimum contacts” with the forum State that the exercise of jurisdiction is consistent with traditional notions of fair play and substantial justice. (International Shoe Co. v. Washington (1945), 326 U.S. 310, 316, 90 L. Ed. 95, 102, 66 S. Ct. 154, 158.) Our supreme court has held that while the standards of Federal due process may delineate “ ‘the outer limits beyond which a State may not go to acquire jurisdiction over nonresidents’ ” (Rollins v. Ellwood (1990), 141 Ill. 2d 244, 271, quoting Cook Associates, Inc. v. Lexington United Corp. (1981), 87 Ill. 2d 190, 197), Illinois courts must ultimately look to the meaning of the long-arm statute and to the due process guarantee of the Illinois Constitution. (Ill. Const. 1970, art. I, §2.) (Rollins, 141 Ill. 2d at 271-75.) Our statute and State constitution may restrict the power of Illinois courts to bring nonresidents before them to a greater extent than do the Federal due process clause and the “minimum contacts” test recognized by the Federal courts. (Rollins, 141 Ill. 2d at 271-72.) Under State due process guarantees, it must be fair, just and reasonable to require a nonresident to defend an action in Illinois, considering the quality and nature of the defendant’s acts which occur in Illinois or which affect interests located in Illinois. Rollins, 141 Ill. 2d at 275.

Defendant argues that mere purchases from an Illinois plaintiff will not support jurisdiction over a nonresident and that its other contacts with Illinois were merely fortuitous and incidental; therefore, plaintiff has not established that defendant had the requisite “minimum contacts” with Illinois.

Plaintiff responds that defendant’s contacts with Illinois were not merely incidental but extensive and systematic. Moreover, plaintiff notes, defendant initiated these contacts and thus purposefully created an ongoing business relationship with an Illinois corporation. Thus, according to plaintiff, it is fair to bring defendant into an Illinois court to enforce the obligations defendant knowingly undertook. We agree.

In Burger King Corp. v. Rudzewicz (1985), 471 U.S. 462, 85 L. Ed. 2d 528, 105 S. Ct. 2174, the plaintiff, a Florida corporation, brought suit in a Florida court against a Michigan resident-franchisee. In applying Federal due process standards to allow the Florida court to exert jurisdiction over a nonresident who had never physically entered the forum State, the Court held that the defendant’s contacts with Florida were sufficient to make it foreseeable that the defendant might reasonably be haled into court there.

Acknowledging that an individual’s contract with an out-of-State party alone does not automatically establish the requisite minimum contacts, the Court stressed that more was present there. By taking the initiative to negotiate a long-term franchise agreement with the plaintiff, the defendant reached out beyond his home State and purposefully availed himself of the benefits of a substantial and ongoing relationship with the Florida plaintiff. Hence his ties to the forum State were hardly “random,” “fortuitous,” or “attenuated.” Burger King, 471 U.S. at 478-80, 85 L. Ed. 2d at 544-46, 105 S. Ct. at 2185-86.

The Court acknowledged that the defendant had little or no physical presence in Florida but minimized the significance of this fact in view of modem commercial practice under which much business is transacted across State lines by wire or mail. The fact that the defendant had no physical presence in Florida was unimportant as long as he purposefully directed his efforts toward residents of the forum State. Burger King, 471 U.S. at 476, 85 L. Ed. 2d at 543, 105 S. Ct. at 2184.

In Chalek v. Klein (1990), 193 Ill. App. 3d 767, which was decided prior to Rollins, we applied Burger King to clarify when Illinois courts may exercise personal jurisdiction over nonresidents who purchase goods from Illinois residents. We adopted the approach of several other jurisdictions in distinguishing between “passive purchasers,” who merely place orders at the seller’s price as stated in advertising or other forms of solicitation, and “active purchasers,” who dictate or vigorously negotiate contract terms or inspect production facilities. This approach, we emphasized, has the virtue of protecting both the due process rights of the ordinary mail order purchaser and the legitimate interests of “sellers who manufacture custom-built products according to a nonresident buyer’s specifications.” (Chalek, 193 Ill. App. 3d at 773.) Although our decision in Chalek must now be considered in conjunction with Rollins, which shifts the focus to our State due process requirements, we believe that it continues to provide a useful approach in determining whether personal jurisdiction exists over nonresident purchasers.

Among the cases cited favorably in Chalek is Yankee Metal Products Co. v. District Court (Okla. 1974), 528 P.2d 311. There, the nonresident defendant initiated negotiations with the forum State plaintiff. These negotiations culminated in contracts for the sale of merchandise that the plaintiff custom-built for the nonresident defendant. The Oklahoma Supreme Court held that the nonresident defendant was an “active purchaser” who had no just cause for complaint when the plaintiff sued in an Oklahoma court. See also Heritage House Restaurants, Inc. v. Continental Funding Group, Inc. (7th Cir. 1990), 906 F.2d 276, 283-84 (defendant’s lack of physical presence in forum State unimportant where defendant solicited and obtained ongoing business relationship with forum State plaintiff); Leonardo’s, Inc. v. Greathall, Ltd. (N.D. Ill. 1989), 714 F. Supp. 949, 953-54 (nonresident company that actively and successfully solicited forum State residents to work at out-of-State fair was subject to jurisdiction of forum State court); Schartner v. Northwest International Equipment Co. (E.D. Wis. 1988), 694 F. Supp. 1364 (nonresident seller who solicited and negotiated sales contract with resident plaintiff was amenable to process under forum State’s long-arm statute).

In the present case, the affidavits and pleadings establish that defendant actively initiated and negotiated an ongoing commercial relationship with plaintiff, an Illinois seller. Plaintiff did not advertise or solicit defendant’s business. Defendant made the initial contact and, after traveling to Illinois to inspect plaintiff’s manufacturing facilities, discussed a future business relationship. Thereafter, the parties undertook a commercial arrangement which endured several years and involved numerous orders requiring plaintiff to custom-produce the products to defendant’s detailed specifications. Defendant placed the order for the products which are the subject of the particular transaction in controversy.

We do not consider defendant to be in the category of an ordinary mail order consumer who merely orders a stock item of merchandise from another State. On the contrary, defendant was an “active purchaser” who deliberately reached out beyond its home State to avail itself of the benefits of commercial ties with an Illinois company. Its contacts with the forum State cannot reasonably be characterized as random, fortuitous, or attenuated. Defendant’s actions should have enabled it to predict that it might be subject to the jurisdiction of this State. Plaintiff has a legitimate interest in using Illinois courts to enforce the obligations that defendant actively and knowingly undertook.

Applying the requirements of the long-arm statute and the restrictions of the State due process clause, we conclude that the exercise of jurisdiction here was fair, just and reasonable under the relevant circumstances. We further hold that plaintiff met its burden of showing that defendant had sufficient contacts with Illinois to satisfy Federal due process requirements.

The judgment of the circuit court of Lake County is affirmed.

Affirmed.

INGLIS, P.J., and DUNN, J., concur.


author: JUSTICE GEIGER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SERVIO COLANO, Defendant-Appellant.
    Second District
    No. 2—90—0862
    Opinion filed July 9, 1992.

      G. Joseph Weller and Sherry R. Silvern, both of State Appellate Defender’s Office, of Elgin, and Dennis M. Zitzer, of Chicago, for appellant.
    Gary V. Johnson, State’s Attorney, of Geneva (William L. Browers and Gregory L. Slovacek, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GEIGER

delivered the opinion of the court:

A jury convicted the defendant, Servio Colano, of two counts of unlawful delivery of more than 15 grams but less than 100 grams of a controlled substance (Ill. Rev. Stat. 1991, ch. par. 1401(a)(1)). He was sentenced to serve eight years in prison. The defendant presented an entrapment defense and asserts on appeal that the State failed to prove beyond a reasonable doubt that he was not entrapped.

In March 1989, police officer Michael Kijowski, of the North Central Narcotics Task Force, started working with Dimitria Stankovich (the informant). She was paid for her cooperation. Officer Kijowski testified that on March 21, 1990, he met the informant at her home. There were surveillance officers stationed near the residence on the street. Officer Kijowski testified that he requested that the informant call the defendant. Approximately one hour later, the defendant arrived at the informant’s residence.

The officer testified that he had a conversation with the defendant regarding the purchase of an ounce of cocaine. He also stated that the defendant asked for $950 for the cocaine and said that it was in a box outside of the house. The officer expressed concern about giving the money to the defendant without receiving the cocaine first. The officer further testified that the defendant insisted that they conduct the drug transaction as he suggested because he feared the buyer might be a police officer.

According to the officer, the defendant then walked to the defendant’s car and pointed to a white box between the curb and the passenger side of the car. He explained that the cocaine was in the box and could be retrieved after he drove away. The officer gave the money to the defendant, and he retrieved the white box. Inside the box, the officer found a clear baggie containing white powder. A field test indicated that it contained cocaine. None of the surveillance officers testified as to seeing the defendant actually place the box on the street.

Officer Kijowski also testified that on March 28, 1989, pursuant to his instructions, the informant set up another drug transaction with the defendant. He again went to the home of the informant. The informant and the officer talked to the defendant on the telephone. Again, the defendant insisted on being paid before he would disclose the location of the cocaine he had for sale. The defendant came to the informant’s residence, took $950 from the officer, and told him that he would let him know later where the drugs were. The defendant left but later telephoned the officer at the informant’s home and described a location where the drugs could be found in a glove. The officer and the informant drove to the location described by the defendant and retrieved the glove. Inside the glove was a baggie containing white powder. A field test of that powder indicated that it contained cocaine.

The officer also testified that on June 13, 1989, he met with the informant and gave her $200 to purchase cocaine from the defendant. The officer and the informant drove in separate cars to a restaurant parking lot. The officer stated that he observed the defendant approach the informant’s car and engage in a conversation with her. Shortly thereafter, he observed the informant and the defendant exchange something with their hands. The officer stated that he then met the informant, who gave him a small baggie holding a substance that field-tested positive for cocaine.

Officer Thomas Petersik of the Illinois State Police testified that on June 14, 1989, he met with the informant and gave her $150 to purchase cocaine from the defendant. That evening, he observed the informant and the defendant meet at a warehouse. He stated that they entered the warehouse and after a short period of time they returned to their respective cars. When he met the informant shortly thereafter, she gave him a baggie containing a white powder which field-tested positive for cocaine.

The defendant testified on his own behalf. He testified that he knew the informant since November 1988 and that they had dated for three or four months. He testified that she told him that she owed a friend $1,500 and requested that he help her repay the money by helping her sell cocaine. He testified that he refused initially but, after several pleas on her part, he finally agreed. He also testified that during the third week of March 1989 he had sex with her and slept several nights at her residence. He further stated that in the March 21 drug transaction the informant told him where the box containing drugs was. He merely took the money from the officer and showed the officer the location of the box described to him by the informant. He testified that he returned later that evening and gave the money to the informant.

Concerning the March 28, 1989, transaction, the defendant testified that he again refused several times to help the informant. After the informant insisted she needed to pay a debt and that she needed the money for her daughter, he reluctantly agreed. He further testified that she hid the cocaine in a glove and told him where the drugs would be. He stated that when he received a phone call from her, he went to her house, collected the money for her and told the officer where the drugs could be found. The defendant also testified that he spent that night at the informant’s home and gave her the drug money. He admitted to seeing the informant on June 13 and June 14, 1989, but denied giving her any cocaine on those dates.

The informant testified that she met the defendant in November 1988, but she denied ever dating him, denied that she allowed him to stay at her residence, and denied ever having sex with him. She also denied telling him that she owed $1,500, denied that she begged him to help her with a drug transaction, and denied receiving any money from him for the cocaine sales. She also stated that she did not place any cocaine in the box on March 21 and did not tell the defendant that she was going to place cocaine in a glove and hide it. She also testified that on June 13 and June 14, 1989, pursuant to instructions from the narcotic officers, she purchased cocaine from the defendant.

On appeal, the essence of the defendant’s entrapment claim is that the informant used sex and pleas concerning her daughter to induce him to act on her behalf to take money for drug sales which she had already arranged. The defendant also notes discrepancies in the informant’s testimony, arguing that her testimony carried little credibility.

The defense of entrapment is an affirmative defense, and once the defendant presents some evidence to raise the issue of entrapment, the State bears the burden of proving beyond a reasonable doubt that the defendant was not entrapped. (People v. D’Angelo (1992), 223 Ill. App. 3d 754, 773-74.) In arguing that the State failed to prove beyond a reasonable doubt that he was not entrapped, the defendant cites to People v. Johnson (1984), 123 Ill. App. 3d 363, for the proposition that a reviewing court is to consider all of the defendant’s testimony regarding entrapment in the light most favorable to him. As authority for that proposition, Johnson cites to People v. Husted (1981), 97 Ill. App. 3d 160, which in turn cites to People v. Carpentier (1974), 20 Ill. App. 3d 1024, where this standard arose.

Carpentier dealt with whether a defendant is entitled to a jury instruction on the defense of entrapment. (See People v. Poulos (1990), 196 Ill. App. 3d 653, 657.) Carpentier did not hold, however, that this rule for construing evidence applies to the determination of whether the State has sustained its burden of proof on entrapment. Under analogous facts, courts in People v. Poulos (1990), 196 Ill. App. 3d 653, 657-68, and in People v. D’Angelo (1992), 223 Ill. App. 3d 754, 773-74, have rejected the defendant’s contention that a reviewing court must view the evidence in a light most favorable to the defendant. Cases following Carpentier apparently picked up on the language in Carpentier and misstated the standard of review of the entrapment defense. D’Angelo, 223 Ill. App. 3d at 774; cf. Johnson, 123 Ill. App. 3d at 370; Husted, 97 Ill. App. 3d at 171.

The Illinois Supreme Court has held that, in reviewing the sufficiency of the evidence to support a conviction, “all of the evidence is to be considered in the light most favorable to the prosecution.” (Emphasis omitted.) (People v. Collins (1985), 106 Ill. 2d 237, 261.) In determining whether the State has sustained its burden of proof with respect to the entrapment defense, “all of the evidence must be viewed in the light most favorable to the prosecution.” (Emphasis in original.) (D’Angelo, 223 Ill. App. 3d at 774.) The question of entrapment is one for the jury, unless the trial or reviewing court can find entrapment as a matter of law. (People v. Tipton (1980), 78 Ill. 2d 477, 487.) We therefore must determine whether in the instant case it can be said that the defendant was entrapped as a matter of law, viewing all of the evidence in the light most favorable to the State. SeeD’Angelo, 223 Ill. App. 3d at 774.

To support a finding of entrapment, the defendant first must demonstrate that the State induced him to commit a criminal act; if he does so, then the burden is on the State to prove that the defendant was ready and willing to commit the crime without persuasion, that is, that he had a predisposition to commit the crime. (D’Angelo, 223 Ill. App. 3d at 774-75.) In narcotics cases, some factors which the courts have considered when making a determination as to predisposition include (1) the defendant’s initial reluctance or his ready willingness to commit the crime; (2) the defendant’s familiarity with drugs; (3) the defendant’s willingness to make a profit from the illegal act; and (4) whether the defendant engaged in a course of conduct involving similar offenses. See D’Angelo, 223 Ill. App. 3d at 776.

In viewing the evidence in this case, we are cognizant that there were discrepancies in the informant’s testimony. Where discrepancies exist in the evidence, it is the responsibility of the trier of fact to weigh the credibility of the witnesses and resolve the conflicts and inconsistencies. See People v. Aguilar (1991), 218 Ill. App. 3d 1, 8.

In the instant case, viewing the testimony in a light most favorable to the State, the defendant’s conviction must be affirmed. Officer Kijowski’s testimony established that, through his informant, he met with the defendant on two occasions, each time paying him $950. Each time the defendant told him where to find cocaine. Officer Kijowski also testified that the defendant insisted that they do the transactions in this manner because he was afraid that Kijowski might be a police officer. The informant denied that she begged the defendant to sell drugs, denied having sex with him, and denied using the defendant as a conduit to sell drugs. There was also testimony from Officer Petersik and Officer Kijowski that the defendant twice sold cocaine to the informant on June 13 and June 14,1989.

The testimony of the informant supported the defendant’s willingness to enter the drug transactions. The defendant’s insistence on collecting the money and telling the officer where to pick up the drugs indicated a familiarity with drugs and drug transactions. Officer Kijowski’s testimony established that he paid the defendant $1,900 for the drugs, indicating the defendant’s willingness to make a profit from the crime. Testimony of the informant and the other officers indicated that the defendant engaged in other drug transactions on two other occasions. Viewing the evidence in a light most favorable to the State, we find that, if believed by the jury, it was sufficient to prove beyond a reasonable doubt that the defendant was predisposed to commit the charged offenses and, thus, was not entrapped. See D’Angelo, 223 Ill. App. 3d at 776.

For the reasons set forth above, the order of the circuit court of Kane County is affirmed.

Affirmed.

DUNN and BOWMAN, JJ., concur.


author: PRESIDING JUSTICE INGLIS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RENE R. PANTOJA, Defendant-Appellant.
    Second District
    No. 2—90—1340
    Opinion filed July 9, 1992.
    G. Joseph Weller and Beth Katz, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Gary V. Johnson, State’s Attorney, of Geneva, and Michael L. Shevick, of Chicago (William L. Browers and John X. Breslin, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE INGLIS

delivered the opinion of the court:

Defendant, Rene Pantoja, was convicted of criminal damage to property in violation of section 21 — 1(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1989, ch. 38, par. 21 — 1(a)). He was sentenced to six months’ imprisonment in the Kane County jail and 30 months’ probation and ordered to pay restitution. Defendant appeals, contending that the trial judge erred in denying his motion in limine to exclude testimony of his gang membership. We affirm.

On April 26, 1990, Elgin police officers Scott Davis and Dan Radmer were called to an area across from Gifford Park in Elgin, Illinois. They observed 15 to 20 people standing on the street and drinking beer. Defendant was one of the group. The officers dispersed the group and some of them, including defendant, went across the street to Gifford Park.

The officers left the area, but then drove around the block to watch the remaining group at the park. The officers observed some of the individuals throwing objects at the streetlights and breaking them. Officer Davis testified that defendant and two other people standing with him damaged four lights. Five other lights were broken by a second group of individuals at the opposite end of the park.

Defendant and the others were arrested and taken to the Elgin police station. Officer Davis testified that defendant stated that he was the head of the Latin Kings street gang, they had buried one of their own that day and he asked to be given a break. Defendant was subsequently charged with criminal damage to property (Ill. Rev. Stat. 1989, ch. 38, par. 21 — 1(a)).

Before trial, defense counsel made a motion in limine to exclude defendant’s statement made to Officer Davis concerning his gang affiliation. Defendant argued that evidence of gang involvement was irrelevant in the case and would be highly prejudicial. The trial judge denied the motion, finding that defendant made a voluntary statement, a spontaneous declaration. The trial judge stated that each part of the declaration was admissible, even if it contained elements that might be prejudicial.

At trial, after defendant’s statement was revealed by Officer Davis, defense counsel elicited detailed testimony from both officers on cross-examination relating to defendant’s gang activities. Defense counsel asked both officers if they were patrolling the park because of fear of gang activity following the funeral of a gang member. The trial judge had ruled before trial that evidence as to why the police were watching the park was to be excluded pursuant to defendant’s motion in limine.

The jury found defendant guilty of damaging the streetlights. Defendant’s post-trial motions were denied, and he was sentenced to six months’ imprisonment in the Kane County jail and 30 months’ probation and ordered to pay restitution. Defendant thereafter filed a timely appeal.

Defendant contends that the trial court erred in denying his motion in limine. He argues that evidence of gang membership was irrelevant to the charge at hand. Also, the evidence was highly prejudicial because it put defendant in an unfavorable light in the jurors’ minds. Defendant further argues that the error was exacerbated by the officers’ testimony concerning their prior contact with defendant and his witnesses. Defendant requests that we vacate his conviction and remand the cause for a new trial.

The State argues that defendant’s statement about gang membership was relevant to show his motive to commit the offense and consciousness of guilt. The State also argues that the officers’ testimony concerning prior contact with the defendant was relevant for purposes of identification. Alternatively, the State argues that defense counsel was responsible for eliciting most of the detailed gang-related testimony.

Motions in limine are encouraged in criminal cases to exclude extraneous matters. (People v. Watkins (1991), 220 Ill. App. 3d 201, 211.) A motion in limine is used in an attempt to protect the moving party from the prejudicial impact of inadmissible evidence being asked and objected to in the presence of the jury. (Reidelberger v. Highland Body Shop, Inc. (1981), 83 Ill. 2d 545, 549; Cunningham v. Millers General Insurance Co. (1992), 227 Ill. App. 3d 201, 205.) A reviewing court will not reverse the trial court’s ruling on a motion in limine absent an abuse of discretion. People v. Poole (1991), 222 Ill. App. 3d 689, 701.

Once a motion in limine is granted, the movant must object when evidence is presented that violates the order. (Cunningham, 227 Ill. App. 3d at 206.) Further, the denial of a motion in limine does not preserve an objection to disputed evidence presented later at trial. The moving party is obligated to object when the evidence is offered or the objection will be waived. Cunningham, 227 Ill. App. 3d at 206; Romanek-Golub & Co. v. Anvan Hotel Corp. (1988), 168 Ill. App. 3d 1031, 1040.

We agree with the waiver rule discussed in both Cunningham, a fourth district case, and Romanek-Golub, a first district case. The movant whose motion in limine has been denied should object when that evidence is presented at trial so as to preserve the issue on appeal. We are aware that waiver does not apply when the defendant initiates testimony, which was the subject of the motion in limine, to reduce its prejudicial impact. (See People v. Spates (1979), 77 Ill. 2d 193, 198-200.) However, the policy promoted by that rule does not apply here. Here, the State elicited defendant’s statement about gang membership from Officer Davis as part of its case in chief, and defendant did not object. Following the above rationale, we hold that defendant’s failure to object to the evidence that was the subject of the motion in limine resulted in waiver.

Absent waiver, we hold that the trial court did not abuse its discretion in denying defendant’s motion in limine. We agree with defendant that consciousness of guilt need not be proven by a statement that included portions detailing gang affiliation. Defendant’s statement could have been edited to delete the gang references and would have remained viable as a statement showing consciousness of guilt.

However, we agree with the State that defendant’s statement is relevant to show motive for the crime. Evidence of gang membership is relevant to show motive. (People v. Buchanan (1991), 211 Ill. App. 3d 305, 320.) Defendant had been to the funeral of a gang member earlier in the day. Defendant was with other gang members at the time of the offense. The gang members had been drinking in public and mourning their lost member. The surrounding circumstances demonstrate that defendant’s motive for general lawlessness at the time of the incident was gang related.

Further, relevant evidence is admissible if it is more probative than prejudicial. (People v. Gonzalez (1991), 142 Ill. 2d 481, 487, citing People v. Hairston (1970), 46 Ill. 2d 348, 372.) Relevant evidence concerning gang membership will not be excluded simply because prejudice attaches to that revelation. (Gonzalez, 142 Ill. 2d at 489.) It is the trial court’s function to weigh the probative value and prejudicial effect of evidence to determine whether it should be admitted. Gonzalez, 142 Ill. 2d at 489.

We find that the trial court did not err in finding the evidence more probative than prejudicial. The trial court acknowledged the prejudicial impact the statement might have to the jury. Such recognition demonstrates a balancing of factors by the trial court which we believe was not an abuse of discretion.

Finally, defendant argues that prejudice was exacerbated by both officers’ testimony concerning prior contacts with defendant. Defendant claims in his post-trial motion that he objected to this testimony at trial, but our reading of the record reflects no such objection. To preserve an issue for review defendant must make a timely objection at trial and renew the objection in a written post-trial motion. (People v. Herrett (1990), 137 Ill. 2d 195, 209.) Because defendant failed to object to the officers’ testimony relating to prior contact with defendant, we find this issue has been waived.

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

Affirmed.

McLAREN and GEIGER, JJ., concur.