author: JUSTICE STOUDER

text:
    DAVID G. McCULLA, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Elk Grove Village Fire Department, Appellee).
    First District (Industrial Commission Division)
    No. 1—91—2844WC
    Opinion filed July 31, 1992.
    Williams & Marcus, Ltd., of Chicago (Robert B. Williams, of counsel), for appellant.
    Wiedner & McAuliffe, Ltd., of Chicago (Frank J. Wiedner, of counsel), for appellee.
   JUSTICE STOUDER

delivered the opinion of the court:

The appellant, David G. McCulla (the claimant), sought benefits under the Workers’ Compensation Act (Ill. Rev. Stat. 1983, ch. 48, par. 138.1 et seq.) contending he suffered injuries arising out of his employment with the appellee, the Elk Grove Village fire department (the employer). The arbitrator found the claimant suffered an accidental injury on August 14, 1984, and awarded benefits. The Industrial Commission (Commission) reversed, finding the claimant’s injuries were not causally connected to his employment. The Commission further found the causal connection issue was barred by the doctrine of res judicata. The circuit court confirmed and the claimant appeals.

The claimant testified he began working for the Elk Grove Village fire department on November 18, 1971. As a fire fighter the claimant performed such duties as rescues, ventilation, salvage and all other normal fire fighting operations. The claimant served as the “tiller man” on the back of the hook and ladder. The claimant testified in general terms that the work involved leading out hose lines, putting up ladders, ventilating roofs, etc.

He was promoted to fire officer or lieutenant in 1980 or 1981. Although this was a management position, the claimant contended he continued to perform all physical fire fighting duties. Again, the claimant testified in general terms to performing forced entry of overhead doors, rescues, hose work and all other fire fighting duties. The claimant’s work schedule involved 24 hours on duty followed by 48 hours off duty. During the 24-hour on-duty period, the claimant testified he would be involved in some type of physical activity for 12 to 16 hours.

During the summer of 1984, the claimant experienced pain in his right knee. He also developed a cyst on the back of his right knee. On August 14, 1984, the claimant was seen by Dr. Rollo Nesset. The claimant testified that after the examination by Dr. Nesset he informed his supervisor of his condition. He could not recall which of his supervisors he told. He also testified he filed a “sick and injury” report.

During the late summer and fall of 1984, the claimant testified his condition grew worse. Nesset treated the claimant by draining the cyst on a number of occasions and injecting Celestone. The claimant noticed that on the days he worked his right knee would become more and more irritated, and he would limp as the day progressed. The condition would tend to alleviate during the subsequent 48-hour off-duty period.

Arthroscopic surgery was performed on November 26, 1984, followed by a period of physical therapy. After the claimant returned to work his condition once again began to deteriorate. A second surgery was performed on March 18, 1985, at which time the cyst in the right knee was removed. The claimant testified that soon after the second surgery on his right knee, he began experiencing problems with his left knee. Surgery was performed on the left knee on October 31, 1985. The claimant testified he has not worked since October 28, 1985. The claimant did not relate his knee problems to any specific work-related activity.

On cross-examination, the claimant testified that prior to becoming a fireman, he worked as a telephone installer for Illinois Bell. During part of this time his duties required him to be on his knees quite a bit. The claimant testified that as a fire fighter he would be on his knees three or four times a week. The claimant was not sure if he was scheduled to work on August 14,1984.

The claimant testified he first noticed the cyst on the back of his knee while in Minnesota. The claimant was in Minnesota while he was having a home constructed. The claimant insisted he was not involved in the construction, although he did do some wiring. The claimant was in Minnesota for four or five weeks “prior to August” 1984. The claimant did not think the work he did on the home required him to be on his knees.

Dr. Nesset’s report of his examination of August 14, 1984, states the claimant gave a history of having been in northern Minnesota “building a house up there for that period of time and doing a lot of heavy work, pushing wheelbarrows, etc.”

The record shows the claimant had been treated for pain in his left knee in March of 1982. Radiology reports dated August 11, 1984, and October 17, 1985, revealed no evidence of fractures or dislocations, and no arthritic or other destructive processes in the claimant’s knees.

In early 1986, the claimant was examined by at least two doctors in connection with proceedings before the Firemen’s Pension Board of the Village of Elk Grove Village. Dr. Mark Gross recommended full disability because the claimant was suffering marked bilateral knee pain. There was no opinion as to the cause of the disability. Dr. Charles Magee could not give an opinion as to the claimant’s disability because the claimant was still in the rehabilitative stage. In addition, Dr. Bernard Moore told the pension board that continuation as a fire fighter would only aggravate the claimant’s condition.

During proceedings before the board, the claimant was asked if his injury occurred during any act of duty. The claimant responded that he could not say it was any specific day or call. On April 24, 1986, the pension board awarded a “not in duty” pension to the claimant pursuant to section 4 — 111 of the Illinois Pension Code (Ill. Rev. Stat. 1985, ch. IO8V2, par. 4 — 111).

As stated above, the arbitrator found the claimant suffered an accidental injury in the course of his employment as a fire fighter. After a lengthy discussion, the arbitrator found the doctrines of res judi-cata and collateral estoppel did not bar the claimant’s claim. The Commission reversed, finding the claimant failed to prove a causal connection and, in the alternative, that the issue of causation was barred by the doctrine of res judicata. The circuit court confirmed and the claimant appeals.

On appeal, the claimant alleges the Commission erred in relying on the doctrine of res judicata to deny his claim. In actuality, the Commission relied on the collateral estoppel branch of the doctrine of res judicata.

Collateral estoppel prohibits the relitigation of an issue essential to and actually decided in an earlier proceeding by the same parties or their privies. (Blair v. Bartelmay (1986), 151 Ill. App. 3d 17, 502 N.E.2d 859.) Collateral estoppel may be asserted so long as the party against whom its application is sought is identical in both actions, and the party had a full and fair opportunity to contest an issue which was necessarily determined in the prior proceedings. (Herriford v. Boyles (1990), 193 Ill. App. 3d 947, 550 N.E.2d 654.) Generally, administrative agency decisions have res judicata and collateral estoppel effect where the agency’s determination is made in proceedings which are adjudicatory, judicial or quasi-judicial in nature. Godare v. Sterling Steel Casting Co. (1981), 103 Ill. App. 3d 46, 430 N.E.2d 620.

In Dempsey v. City of Harrisburg (1971), 3 Ill. App. 3d 696, 279 N.E.2d 55, the plaintiff petitioned the police pension fund for a pension on the theory her husband lost his life “in the performance of duty.” The plaintiff’s husband, the chief of police for the City of Harrisburg, died after returning home from a late night emergency call. The plaintiff relied on the earlier decision of the Illinois Industrial Commission which found that the plaintiff’s decedent had sustained accidental injuries arising out of and in the course of his employment resulting in his death. That decision had become final. The plaintiff asserted the Commission’s decision was res judicata and binding on the pension board.

The pension board found the decedent did not lose his life in the performance of duty and denied benefits. The circuit court affirmed the decision of the board. A unanimous panel of the Appellate Court, Fifth District, reversed, finding the issues presented in both proceedings were for all intents and purposes identical. The Workmen’s Compensation Act provided benefits for “accidental injuries arising out of and in the course of employment,” while the Illinois Pension Code provided benefits for policemen who lost their lives “in the performance of duty.” (Dempsey, 3 Ill. App. 3d at 696, 697.) The court found the workmen’s compensation proceedings adjudicated all the factors necessary for a valid claim for a pension for loss of life in the performance of duty. In other words, the issue of causation was fully adjudicated in the workmen’s compensation proceedings, and the city was precluded from relitigating that issue before the pension board.

In the instant case, the claimant petitioned the Firemen’s Pension Board of the Village of Elk Grove Village for a pension. Following a hearing, the board awarded a “not in duty” pension to the claimant. A “not in duty” pension is awarded to those fire fighters who become disabled “as a result of any cause other than an act of duty.” (Ill. Rev. Stat. 1985, ch. lOBVa, par. 4 — 111.) The claimant did not appeal from this determination.

In the claimant’s subsequent workers’ compensation action the issue of causation was raised before the Commission. We find no difference between the issue adjudicated before the pension board and the issue of causation subsequently before the Commission. The claimant had a full opportunity to adjudicate the issue of the work-related nature of his disability before the pension board. The pension board found his disability did not arise out of his duties as a fire fighter. He did not appeal this determination. Therefore, he is collaterally estopped from relitigating that issue before the Commission.

The claimant asserts the pension board did not consider the “cumulative effects” of his work in arriving at its determination. He further contends the record reflects the board did not understand the statutory provisions regarding cumulative effects. The claimant maintains his claim before the Commission of injury based on repetitive trauma is not the same as cumulative effects and therefore res judi-cata principles cannot apply.

First, whatever the pension board’s understanding of the claimant’s claim and any errors of law are not before this court. The claimant did not appeal the board’s determination. Second, the claimant’s theory of recovery in no way affects the basic finding of the pension board that the claimant’s disability was not work related.

In addition, we find the claimant’s reliance on Godare v. Sterling Steel Casting Co. (1981), 103 Ill. App. 3d 46, 430 N.E.2d 620, unpersuasive. In Godare, the issue was the nature and extent of the plaintiff’s disability. The court found the standard applied in the workmen’s compensation action was different from the standard utilized under the private pension agreement. In the instant case, there are no degrees of causation; either there was a causal connection between his disability or there was not. The pension board determined there was not, and that finding was not challenged on direct review.

In sum therefore, we find the issue of causation was fully adjudicated before the pension board and the Commission correctly found that it was bound by the pension board’s determination. Finding as we do, we need not address the claimant’s substantive contention on the issue of causation.

Therefore, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

McCULLOUGH, RJ., and WOODWARD, H. LEWIS, and RAKOWSKI, JJ., concur.


source: Caselaw Access Project

author: JUSTICE McCORMICK

license: Public Domain

text:
    CYNTHIA RUBIN, Plaintiff-Appellee, v. MARSHALL FIELD AND COMPANY et al., Defendants-Appellants.
    First District (2nd Division)
    No. 1—90—2498
    Opinion filed July 14, 1992.

      French, Kezelis & Kominiarek, EC., of Chicago (Algimantas Kezelis, Russell P. Veldenz, and Patrick B. Cage, of counsel), for appellants.

      Law Offices of Arthur S. Gomberg, P.C., of Chicago (Gregory A. Friedman, of counsel), for appellee.
   JUSTICE McCORMICK

delivered the opinion of the court:

Plaintiff, Cynthia Rubin, sued defendants, Marshall Field & Company (Fields) and Princess Marcella Borghese, Inc. (Princess Marcella), for injuries caused by cosmetics that defendants marketed. A jury awarded plaintiff damages for breach of implied warranty of fitness for a particular purpose and for violation of the Illinois Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat.

1985, ch. 1211/2, par. 261 et seq.). Defendants appeal from the judgment entered on the verdict and from the trial court’s award of attorney fees.

On April 5, 1986, plaintiff purchased instant eye makeup remover distributed by Princess Marcella from Fields. That night she used the product to remove her eye makeup. Her eyelids and the skin around her eyes turned red, became taut and rough and started to sting. She washed the skin repeatedly and kept a cold washrag on her eyes all night. Two days later, when the burning did not subside, she called an ophthalmologist, and she went to see him the next day. He told her that she had contact dermatitis and he prescribed an ointment.

A few weeks later, because the burning and roughness of her eyelids persisted, plaintiff decided to see Dr. Katherine Wier, a dermatologist. Dr. Wier prescribed a similar ointment and told plaintiff that the chemical which was causing the burning would remain in her system for three or four months. The stinging subsided, but plaintiff could not wear eye makeup again regularly until summer 1987. When she tried to wear makeup again before that, her eyelids turned bright red and began swelling upon removal of the makeup.

In March 1988, plaintiff filed her four-count complaint. In December 1989, she amended her complaint to six counts, charging defendants in count I with violation of the Illinois Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1985, ch. 121V2, par. 261 et seq.) (the Act or Consumer Fraud Act). She also sought to recover for her personal injuries on theories of breach of express warranty (count II); breach of implied warranty (count III); strict products liability (count IV); negligence (count V); and common law fraud (count VI). Defendants did not object to the amendment of the complaint or to trial by jury on any count of the complaint.

At trial plaintiff testified that when she went to Fields on April 5, 1986, she was not especially shopping for cosmetics. While browsing she got into a conversation with Julianna Reiner, a sales clerk, and she told Reiner that she used Vaseline to remove her eye makeup. Reiner said Vaseline could clog her eye ducts and cause cataracts or other permanent eye damage. Reiner recommended Princess Marcella Borghese Instant Eye Make-Up Remover. Plaintiff asked if the product was safe and Reiner showed her the box, which said “recommended for all skin types.” Reiner said, “if it wouldn’t be safe for you, it wouldn’t say this on the box.” Relying on Reiner’s representations, plaintiff purchased the product.

Defendants admit that Reiner was an agent for both defendants when she sold plaintiff the product. Reiner testified that she had no specific recollection of the transaction, but she never said anything about adverse effects of other products, and she “never use[d] the word [VJaseline, ever.”

Dr. Wier testified that eyelid skin and genital skin is the most sensitive skin on the body, and very fair skin, like plaintiff’s, is easily irritated. Dr. Wier could say with medical certainty that the makeup remover caused plaintiff’s reaction, which was probably a primary irritant reaction compounded by an allergic reaction. Dr. Wier testified in her deposition that although the distinction is sometimes difficult to draw, an irritant reaction is an immediate skin reaction, like burning, which the irritant would cause on almost anyone’s skin, while an allergic reaction is usually delayed and occurs only in persons with the allergy. She classified plaintiff’s reaction as a primary irritant reaction because of the speed with which the reaction occurred. The detergent in the makeup remover was probably the irritant, opening the pores and allowing other chemicals, to which plaintiff was allergic, to penetrate the skin. She believed that some other people whose skin was as fair as plaintiff’s would react adversely to the product, and “a few might have a similar disastrous reaction.”

On cross-examination, Dr. Wier admitted that the detergent in the eye makeup remover was also used in at least three other products, including baby shampoo. She considered the eye makeup remover fairly safe.

Revlon, Inc., which owns Princess Marcella, manufactured the eye makeup remover. Dr. Earl Brauer, vice-president of medical affairs for Revlon research, testified that he tested the product plaintiff returned to defendants and found that it included only the proper chemicals with nothing extraneous added. He used the returned product in a skin patch test on 105 individuals chosen to represent the general population, and three had some reaction. He concluded that the product did not contain any irritant. He monitors personal injury complaints for Revlon products, and with more than 50,000 units of the eye makeup remover manufactured since 1978, plaintiff is the first consumer to complain of adverse effects. He said that she must have had an idiosyncratic allergic reaction because the product does not contain any irritants.

Dr. Brauer admitted that if the concentration of the detergent were increased sufficiently, it could possibly become an irritant, but he doubted that it would act as such even in high concentrations. He had never heard of Vaseline causing cataracts or similar problems to the eye. He agreed with Dr. Wier’s conclusion that plaintiffs injuries were a reaction to the eye makeup remover.

Defendants moved for directed verdicts on all counts. Based on Dr. Wier’s testimony that the product was fairly safe, the court granted the motion as to the strict product liability count. Plaintiff then withdrew the negligence count. The court denied the motion as to all other counts.

The jury found for defendants on the express warranty and common law fraud counts, but it found for plaintiff on the implied warranty and Consumer Fraud Act counts. The jury awarded plaintiff damages of $1,250. Defendants filed a post-trial motion for a new trial, arguing that plaintiff failed to prove a defect in the product and a pattern of deceptive practices. At oral argument on the motion, defendants also contended that plaintiff had not shown an intent to deceive. The court denied the motion.

Plaintiff petitioned for $14,500 in attorney fees, and she supported the petition with an affidavit from her attorney, detailing work performed and charges for that work. Plaintiff contended that she was entitled to fees under both the Consumer Fraud Act and the Magnuson-Moss Warranty Act (15 U.S.C. §2301 et seq. (1982 & Supp. 1985)). Defendants did not object to the statutory bases for fees. After the hearing, the court awarded plaintiff fees of $7,500 for work on both counts upon which the jury found in her favor.

I. BREACH OF IMPLIED WARRANTY

Defendants argue that this court should reverse the judgment for plaintiff on the cause of action for breach of implied warranty because plaintiff did not prove that there was any defect in the makeup remover and because the evidence showed that her reaction to the product was idiosyncratic.

The Uniform Commercial Code (UCC) (Ill. Rev. Stat. 1985, ch. 26, par. 2 — 315) provides:

“Where the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller’s skill or judgment to select or furnish suitable goods, there is unless excluded or modified under the next section an implied warranty that the goods shall be fit for such purpose.”

Therefore, under the statute, plaintiff needed to prove (1) a sale of goods; (2) before the sale the seller had reason to know (a) a particular purpose for which plaintiff bought the goods, and (b) that she was relying on the seller’s skill to select goods suitable for that purpose; and (3) the goods were not suitable for that particular purpose. The action is in contract, not tort, based on the implicit promises

“derived from the interplay of a transaction’s factual circumstances with the foreseeable expectations of a buyer *** who is protected by law in those expectations.” Collins Co. v. Carboline Co. (1988), 125 Ill. 2d 498, 508, 532 N.E.2d 834.

Some cases have added a requirement that plaintiff prove the product was defective. (141 S. Main, Inc. v. Magic Fingers, Inc. (1977), 49 Ill. App. 3d 724, 364 N.E.2d 605; Mullen v. General Motors Corp. (1975), 32 Ill. App. 3d 122, 336 N.E.2d 338; Van Winkle v. Firestone Tire & Rubber Co. (1969), 117 Ill. App. 2d 324, 253 N.E.2d 588.) None of these cases makes reference to the UCC. The reasoning of these cases has been criticized. Anderson, in his commentary to the UCC, said:

“ ‘It is unfortunate that the warranty law has been so influenced by the tort law. With respect to negligence and strict tort, it is logical to require that there be a defect in the goods. In the case of warranty, it should be sufficient to impose liability that there has been a breach of warranty. In many cases, the breach of warranty consists of the presence of a defect that prevents the goods from being used. In other cases, the breach consists merely of failing to conform to the contract’s standard. For example, when the seller delivers a red table instead of the green table required by the contract there is clearly a breach of warranty. Yet the red table was not defective in any intelligent sense of the word merely because it did not conform to the contract. ***
Many of the cases seek to make a quantitative distinction as to how dangerous a product must be in order to be classified as “defective.” Yet there is not a warranty in the [Uniform Commercial] Code that could not be broken by a perfectly made product. Conformity to the standard, satisfaction of the minimum criteria of the warranty of merchantability, [and] fitness for the particular purpose of the buyer are the criteria for determining whether warranties have been satisfied. Conversely, there is a breach of warranty by proof that these criteria have not been satisfied. Failure to satisfy the criteria are the significant matters without regard to whether the goods are “defective” or without a flaw.
The need for defining a defect becomes unnecessary insofar as warranty law is concerned if the matter is approached from the aspect of conformity or nonconformity, rather than in terms of whether there is a defect. The presence of a defect should be regarded as merely evidence of the fact that the goods are in such a condition that some warranty has been broken. If all the circumstances lead to the conclusion that the goods do not conform, there is a breach of warranty. It is unnecessary to determine whether what made them not conform is to be labeled a “defect.” 3 R. Anderson, Uniform Commercial Code §2 — 314:56, at 163 (3d ed. 1983), quoted in Malawy v. Richards Manufacturing Co. (1986), 150 Ill. App. 3d 549, 559-60, 501 N.E.2d 376.

We agree with Anderson and the appellate court in Malawy. Plaintiff’s proof of breach of implied warranty was complete when she showed that defendants’ agent implicitly warranted that the product would be safe for her skin in particular, and it was not suitable for that particular use. She did not need to prove in addition that the product was defective.

Defendants contend that they proved that plaintiff’s reaction was idiosyncratic, and this provides an absolute defense to the implied warranty action. In Stanton v. Sears Roebuck & Co. (1942), 312 Ill. App. 496, 501, 38 N.E.2d 801, the court said:

“ ‘It can hardly be said that a vendor *** would be liable for a breach of an implied warranty solely because of the harmful effect due to a buyer’s individual idiosyncrasy.’ ” Quoting Barrett v. S.S. Kresge Co. (1941), 144 Pa. Super. 516, 520, 19 A.2d 502, 503.

Following Stanton, the court in Presbrey v. Gillette Co. (1982), 105 Ill. App. 3d 1082, 1091-92, 435 N.E.2d 513, found that the idiosyncratic consumer is generally barred from recovery under theories of strict liability, negligence or breach of warranty. The court further held that “the rule of nonliability has been relaxed by some courts where the defendant has breached an express warranty of safety to the ultimate consumer.” (Presbrey, 105 Ill. App. 3d at 1094.) The court found that the evidence in that case could not support such a theory. Under Stanton and Presbrey, it appears that if plaintiff had no evidence of warranty beyond the fact that defendants offered the product for sale, her cause of action for breach of warranty would be defeated by proof that her reaction was idiosyncratic.

Plaintiff has presented considerable evidence beyond the sale itself to show that the warranty implied by defendants’ acts in this case was far more specific. Plaintiff testified that after defendants’ agent, Reiner, recommended the product, she asked whether the product would be safe for her. Reiner pointed to the box, which said “recommended for all skin types,” and said “if it wouldn’t be safe for you, it wouldn’t say this on the box.” Reiner could see plaintiff’s skin and she knew of plaintiff’s concern about the safety of the product for use on that skin. Under these specific factual circumstances, it is reasonable to infer a warranty that the product would not harm plaintiff’s skin. While an idiosyncratic reaction may provide a defense in most implied warranty cases, in which the warranty is only that most people could use the product for the general purpose for which it was made (see Magic Fingers, 49 Ill. App. 3d 724, 364 N.E.2d 605; Mullen, 32 Ill. App. 3d 122, 336 N.E.2d 338; Van Winkle, 117 Ill. App. 2d 324, 253 N.E.2d 588), idiosyncrasy is not a defense when the warranty implied by the circumstances of the transaction is more specific, as it was in this case. (See Malawy, 150 Ill. App. 3d at 560.) Therefore, we affirm the finding of liability, and the award of $1,250 in damages on the implied warranty count.

II. CONSUMER FRAUD ACT

The trial court premised its award of attorney fees on both the implied warranty count and the Consumer Fraud Act count, without distinguishing the portion of the award attributable to each count. The award of damages is fully supported by the verdict on implied warranty, but no identifiable part of the award of fees is supported by the implied warranty count alone. We must address defendants’ arguments concerning the Consumer Fraud Act to determine the propriety of the award of fees.

Defendants argue that this court should vacate the finding of liability on the Consumer Fraud Act count because the trial court should not have allowed the jury to try this count. Although defendants failed to raise this issue in the trial court, the record contains facts sufficient for resolution of the issue, so we have discretion to address the issue. (134 Ill. 2d R. 366(a)(5); Wozniak v. Segal (1974), 56 Ill. 2d 457, 308 N.E.2d 611; McClure v. Suter (1978), 63 Ill. App. 3d 378, 379 N.E.2d 1376.) We choose to exercise that discretion in this case.

The Consumer Fraud Act does not authorize jury trials. (Richard/Allen/Winter, Ltd. v. Waldorf (1987), 156 Ill. App. 3d 717, 725, 509 N.E.2d 1078.) The trial court improperly delegated its fact-finding function on the consumer fraud charge to the jury. Therefore, we vacate the finding of liability under the Consumer Fraud Act and the award of attorney fees. We remand the case for determination of whether defendants are liable under the Consumer Fraud Act. Of course, the trial court is not bound by the jury’s finding of the amount of defendant’s liability if it finds defendants liable under the Act.

Defendants also argue that the consumer fraud action was time barred, the verdict was inconsistent with the verdict for defendants on common law fraud and plaintiff failed to show a pattern of deceptive practices or an intent to deceive. Although defendants waived several of these issues by failing to raise them in the post-trial motion (Brown v. Decatur Memorial Hospital (1980), 83 Ill. 2d 344, 415 N.E.2d 337), we address them here because they are likely to arise at the bench trial on remand.

As defendants point out, some decisions of the appellate court indicate that plaintiff must show a pattern of deceptive practices to succeed on a claim under the Consumer Fraud Act (e.g., Frahm v. Urkovich (1983), 113 Ill. App. 3d 580, 586, 447 N.E.2d 1007), while other decisions find proof of a single act sufficient to support a claim under the Act (e.g., Warren v. LeMay (1986), 142 Ill. App. 3d 550, 491 N.E.2d 464). In 1990 the legislature amended the Act to provide:

“Proof of a public injury, a pattern, or an effect on consumers generally shall not be required.” Ill. Rev. Stat. 1991, ch. 121V2, par. 270(a).

Defendants ask this court not to use the amendment to construe the statute for this case. Our supreme court has held:

“The principle has been established by this court that in ascertaining the intent of the General Assembly in the construction of a statute where no specific provision appears to aid such construction recourse may be had to the language of subsequent acts of the same law-making body. [Citation.] And these subsequent acts of the General Assembly may be amendments to the act being construed. [Citation.] *** [A] statutory amendment creates a presumption that it was intended to change the law ***. This presumption is not conclusive, and a subsequent amendment does not necessarily indicate an intention to change the law as it previously existed. ***
The weight to be given a subsequent amendment in the construction of a statute and whether it will be held to be a manifestation of an intent to change the law as it previously existed or only a clarification of its terms, of course, must depend upon the circumstances involved.” Bruni v. Department of Registration & Education (1974), 59 Ill. 2d 6, 11-12, 319 N.E.2d 37, 39-40.

In a criminal case the court found a subsequent amendment to the statute the court was construing

“extremely relevant ***. The reason is that an amendment to a statute is an appropriate source for determining the original legislative intent of the statute. [Citations.] Where, as here, an amendment is enacted soon after controversies have arisen regarding the statute amended, it is logical and reasonable to regard the amendment as a legislative interpretation of the original statute.” People v. Badoud (1988), 122 Ill. 2d 50, 56, 521 N.E.2d 884, 887.

In this case, as in Badoud, plaintiff has overcome the presumption that the amendment was intended to change the statute by showing the conflict in the courts. (See Herrerra v. Lester Engineering Co. (1983), 116 Ill. App. 3d 228, 452 N.E.2d 68 (amendment to ambiguous statute does not indicate intent to change statute).) The amendment of the Consumer Fraud Act clarifies that the legislature intended to provide relief under the Act even for plaintiffs who can prove only a single deceptive act.

Application of the proper interpretation of the Consumer Fraud Act to this case does not violate the prohibition against ex post facto laws because the Act, whose meaning is unchanged by the amendment, was enacted prior to defendants’ deceptive act, which occurred in 1986. Our supreme court has used amendments to aid in statutory interpretation even to support the imposition of criminal sanctions (see Badoud, 122 Ill. 2d 50, 521 N.E.2d 884; People v. Bratcher (1976), 63 Ill. 2d 534, 349 N.E.2d 31), for which the protection against ex post facto laws is most directly implicated (People v. Nichols (1978), 60 Ill. App. 3d 919, 377 N.E. 2d 815). Thus, the trial court properly concluded that plaintiff’s complaint did not need to be supported by proof of a pattern or practice of deceptive acts; a single deceptive act is sufficient to support recovery under the Act.

Plaintiff’s right to recovery is unaffected by her alleged failure to show an intent to deceive because “a violation of the Consumer Fraud Act may be based on an innocent or negligent misrepresentation as well as one that is intentional.” Carl Sandburg Village Condominium Association No. 1 v. First Condominium Development Co. (1990), 197 Ill. App. 3d 948, 953, 557 N.E.2d 246.

Defendants contend that the action is time barred. The original complaint in this case was filed in March 1988, less than two years after plaintiff purchased the makeup remover. The cause of action for violation of the Consumer Fraud Act arose from the same transaction and occurrences set forth in the original complaint. Since the original complaint was filed before the running of the limitations period of the Act, the count based on the Consumer Fraud Act is not time barred. Ill. Rev. Stat. 1991, ch. 110, par. 2 — 616(b).

Defendants contend that a verdict for plaintiff on consumer fraud is inconsistent with the verdict for defendants on common law fraud. In Zimmerman v. Northfield Real Estate, Inc. (1986), 156 Ill. App. 3d 154, 168, 510 N.E.2d 409, the court held that the Act

“expands a consumer’s rights beyond those of the common law and provides broader protection than does the common law action of fraud. [Citation.] Thus, plaintiffs need not establish all of the elements of fraud.”

The verdict for defendants on common law fraud is, thus, not inconsistent with the verdict for plaintiff under the Act. The trial court may, on remand, find defendants liable for violation of the Consumer Fraud Act based upon a single act of innocent misrepresentation while remaining consistent with the finding for defendants on the charge of common law fraud.

If the court finds defendants liable, it should first determine the amount of damages, which should be offset by plaintiff’s recovery of $1,250 for breach of implied warranty to prevent double recovery. Then the court must determine appropriate attorney fees.

III. ATTORNEY FEES

Defendants admit that the award of attorney fees in cases under the Consumer Fraud Act is within the discretion of the trial court (see Haskell v. Blumthal (1990), 204 Ill. App. 3d 596, 600, 561 N.E.2d 1315), but they argue that the trial court cannot award fees for the implied warranty count. Although defendants waived this argument, we address it here because the case must be remanded for a determination of liability under the Consumer Fraud Act. Plaintiff claimed in the trial court that her right to fees for the implied warranty count was established by the Magnuson-Moss Warranty Act (Warranty Act) (15 U.S.C. §2301 et seq. (1988)). Defendants argue that in this personal injury action based on State law of implied warranty, the Warranty Act cannot support an award of fees.

Plaintiff charged defendants with breach of implied warranty in violation of both the Uniform Commercial Code and the Warranty Act. 15 U.S.C. §2311(b)(2) (1988) provides that, with exceptions not pertinent to this case, nothing in the Warranty Act

“shall (A) affect the liability of, or impose liability on, any person for personal injury, or (B) supersede any provision of State law regarding consequential damages for injury to the person or other injury.”

Federal courts have interpreted this section to mean that “personal injury claims arising from breach of warranty are not cognizable under the [Warranty Act].” (Boelens v. Redman Homes, Inc. (5th Cir. 1984), 748 F.2d 1058, 1060.) Plaintiff alleged breach of implied warranty as a basis for recovery only for personal injuries. Plaintiff failed to state a claim cognizable under the Warranty Act, so her claim for fees based on that act must also fail. Washington v. Otasco, Inc. (N.D. Miss. 1985), 603 F. Supp. 1295.

Plaintiff succeeded on her implied warranty claim under the Uniform Commercial Code, which does not provide for the award of attorney fees. Illinois courts will not award attorney fees unless fees are specifically authorized by statute or provided for by contract between the parties. (McCormick v. McCormick (1988), 180 Ill. App. 3d 184, 212, 536 N.E.2d 419.) Thus, the trial court should not have awarded fees based on the implied warranty count. On remand, the trial court should award fees only if it finds defendants liable under the Consumer Fraud Act, and it should award only the fees expended on that count. Thus, if plaintiff is successful in her claim for consumer fraud, she must, to the extent possible, distinguish fees incurred on the implied warranty count from fees incurred on the Consumer Fraud Act count. See Chesrow v. Du Page Auto Brokers, Inc. (1990), 200 Ill. App. 3d 72, 557 N.E.2d 1301.

Finally, plaintiff seeks to recover attorney fees incurred on this appeal. The Consumer Fraud Act authorizes the award of appellate fees. (Warren v. LeMay, 142 Ill. App. 3d at 584, 491 N.E.2d at 485.) Since fees cannot be based on the implied warranty count, the request for fees incurred in preparing that part of the appeal is denied. If the trial court finds defendants liable under the Act, it may award plaintiff appellate attorney fees for work on the consumer fraud count along with fees incurred on remand.

Again, the trial court should, to the extent possible, distinguish fees incurred on appeal of the consumer fraud count from fees incurred on appeal of the implied warranty count, and award only the former.

For the reasons stated above, we affirm the judgment entered on the jury verdict finding defendants liable for breach of implied warranty, we vacate the judgment on the Consumer Fraud Act count and the award of attorney fees, and we remand for a determination of defendants’ liability for consumer fraud and appropriate attorney fees.

Affirmed in part; vacated in part and remanded with directions.

HARTMAN, P.J., and SCARIANO, J., concur.


text:
      In re MARRIAGE OF MARIA SOKOLOWSKI, Petitioner-Appellant, and RICHARD SOKOLOWSKI, Respondent-Appellee.
    First District (2nd Division)
    No. 1—90—2650
    Opinion filed July 14, 1992.

      Maria Pappas, Peter N. Kamberos, and Christopher Buchar, all of Chicago, for appellant.
    Maloney & Craven, P.C., of Des Plaines (E. William Maloney, Jr., of counsel), for appellee.
   JUSTICE McCORMICK

delivered the opinion of the court:

Petitioner, Maria Sokolowski (Maria), appeals from a judgment of dissolution entered by the circuit court. Maria argues that the trial court abused its discretion in upholding an agreement she drafted and signed prior to her marriage to Richard Sokolowski (Richard). Maria also contends that the trial court erred in determining the parties’ interests in the marital home and in finding that nonmarital assets owned by Richard were not transmuted into marital property.

Facts

Maria and Richard were married on January 30, 1985. On May 26, 1989, Maria filed for dissolution of the marriage, charging Richard with mental cruelty and requesting maintenance and a portion of the parties’ marital property. While the hearing on the petition for dissolution was pending, Maria filed a motion in limine seeking to bar Richard from presenting evidence of an alleged prenuptial agreement signed by Maria. Maria argued that the agreement was invalid because (1) there was not full disclosure of Richard’s assets; (2) Richard did not sign the agreement; and (3) Maria was not represented by counsel at the time the agreement was signed.

A hearing was held on the petition for dissolution in August 1990. At the start of the hearing, the trial court stated that it would hear the evidence on Maria’s motion in limine along with the evidence on the petition for dissolution and enter a ruling on the motion prior to rendering judgment.

It was established at the hearing that Maria was born in Poland in 1937. In May 1984, she came to America on a six-month visitor’s visa to make funeral arrangements for her first husband.

Maria testified that in November 1984 she was introduced to Richard by Janina Dziengiel and that sometime in the second half of November, Richard proposed marriage. The parties were married on January 30, 1985. Maria stated that she was employed throughout the marriage and that all the money she earned was turned over to Richard.

In April 1985, the parties purchased a residence in Schiller Park, Illinois, for $70,000. At the time of the hearing, the house had a fair market value of $100,000.

Title to the property was taken in joint tenancy with right to sur-vivorship. A $14,000 down payment was made on the home and Maria testified that she furnished the entire amount from the proceeds of her late husband’s insurance. In March 1986, Maria’s two children from her first marriage came to America and moved into the home with Richard and Maria.

According to Maria, everything in the marriage was fine until Richard received a telephone call from Janina Dziengiel shortly before Christmas 1988. Maria testified that after Dziengiel’s telephone call, Richard held a gun to her head and threatened to kill her. Maria filed for divorce five months later.

When cross-examined about the prenuptial agreement, Maria acknowledged that she wrote out and signed the document, which was in Polish. However, Maria testified that she did not know what the document meant, that no one ever explained the document to her, that Richard did not request that she sign the document and that Richard did not disclose his assets to her prior to the marriage. Maria stated that after signing the document, she gave it to Janina Dzien-giel and that she did not see it again until after the petition for dissolution was filed.

Maria testified that at the time of the trial, she did not have a savings account and her daughter, Margaret Slusarczyk, denied having a joint account with Maria. Margaret testified that she had her own savings account, that the account had a balance of only $299 and that Maria had not contributed any amounts to the account.

On cross-examination, Margaret acknowledged that her 1988 and 1989 Federal tax returns showed that her gross earnings were $5,948 and $11,549, respectively, and that she reported $433 in interest income for 1989, after reporting only $63.79 in interest income in 1988. Later in the hearing, Richard introduced into evidence a bank signature card for a joint account in the names of Margaret and Maria.

Janina Dziengiel was called as a -witness on Richard’s behalf. Dziengiel, who was born in Poland and came to America in 1966, testified that she had known Richard for 20 years and that she met Maria in May 1984, when Maria came here to bury her husband. Dziengiel testified that she and Maria became close friends and that Maria often told her that she wanted to stay in America.

Dziengiel testified that during the summer of 1984, she had a conversation with Maria during which Maria stated that she wished to find someone to marry so that she could stay in this country. Dzien-giel further testified that in December 1984, she arranged a meeting between Maria and Richard.

Dziengiel stated that after the second time Maria and Richard had seen each other, Maria told her that she was anxious to marry Richard but that she was afraid Richard would not marry her and that she would have to return to Poland. Dziengiel suggested that Richard might agree to marry Maria if Maria prepared some kind of agreement stating that she did not want to take Richard’s property or money. Dziengiel testified that during this conversation, she told Maria that Richard probably was worth more than $100,000.

Dziengiel testified that at Maria’s request, she prepared an example of a premarital agreement. The example was in English, and Dziengiel explained to Maria what it meant and told her to prepare and sign a similar agreement in Polish.

Dziengiel testified that shortly before the marriage, Richard showed her a Polish-language version of the agreement that had been handwritten, signed and notarized by Maria. In it, Maria stated that she waived “all [her] rights to [Richard’s] property or his financial assets” and “all the rights as a wife and claims toward property.”

Dziengiel testified that Richard did not know of her involvement in the preparation of the agreements, and that he did not tell or ask her to prepare them. Dziengiel also testified that at the time the agreements were prepared, Maria and Richard were not engaged to be married.

Richard, who was born in Poland and came to the United States in 1946, testified that he met Maria in December 1984 and that at their second meeting Maria told him that she was scheduled to fly back to Poland on December 19. Richard suggested that Maria cash in her ticket and remain here so that they would have a chance to get to know each other better. Richard testified that he told Maria that if things did not work out, he would buy her return ticket.

Richard testified that over the next month, he and Maria met two or three times a week but that the meetings never lasted more than an hour. It was at one of these meetings that Maria gave Richard the Polish and English versions of the premarital agreement.

Richard testified that he did not ask Dziengiel to prepare or obtain the document, nor did he ask Maria to prepare it. Richard further testified that prior to receiving the document, he never had any discussions with Maria regarding the execution or preparation of the document. However, Richard also testified that before Maria gave him the agreement, he was about to buy her return ticket to Poland and that he would not have married her if she had not given him the agreement.

According to Richard, he and Maria first discussed marriage around Christmas 1984, and that it was Maria who first brought up the subject. Richard testified that Maria told him that “the best way to get her over here would be marriage because everybody recognizes marriage, and everybody knows that if you marry American citizens you automatically stay in this country.”

Richard also testified that seven weeks passed between his first meeting with Maria and their marriage and that the reason for the rush was the fact that Maria’s son, Mark, was approaching the age where he would be drafted into the Polish army. Richard stated that if drafted, Mark would be required to serve for two years and, thereafter, he would be prohibited from leaving the country for another three years.

Richard testified that at the time of the marriage, he owned a piece of real estate in Florida; stocks valued at approximately $28,000; a certificate of deposit worth approximately $10,000; and a 1985 Buick, which he purchased by cashing in a second $10,000 certificate of deposit.

Richard testified that immediately after the marriage, papers were filed to secure permanent resident status for Maria and to get her children into the country. Richard stated that after the children arrived, his relationship with Maria deteriorated and she would no longer sleep with him. Richard also stated that there were several altercations between him, Maria and the children in 1988 and 1989, but he denied ever holding a gun to Maria’s head.

Concerning the home which the parties purchased in 1985 and for which Maria provided the $14,000 down payment, Richard testified that the principal mortgage had been reduced from $56,000 to $11,000. Portions of this amount came from Richard’s lump sum payments of $10,000 in 1987; $14,000 in 1988; and $13,224 in 1989. The remainder of the reduction was through standard mortgage amortization. Richard testified that he obtained the funds to make these payments by liquidating nonmarital assets, including the Florida property and some of the stock he owned. Richard testified that at the time the final prepayment was made in March 1989, his relationship with Maria was nonexistent.

On cross-examination, Richard acknowledged that he was never asked to sign either of the agreements and that he never disclosed his assets and liabilities to Maria before the marriage. However, he claimed that he made an attempt to discuss his assets with Maria, but that she stated that she did not care.

On August 20, 1990, the trial court issued an “Outline of Opinion, Findings, and Order Following Trial on Hearing of Petition for Dissolution” (Outline). In the Outline, the trial court found that the agreement signed by Maria was valid and binding but of limited applicability. The court also found that it was “most improbable” that Maria did not have a bank account and that “based on the evidence” the account contained about $5,800.

On September 12, 1990, the trial court entered a judgment of dissolution incorporating the earlier Outline. In its judgment the court ordered that neither party be required to pay maintenance and that the marital residence be awarded to Richard subject to a lien in the amount of $12,000 in favor of Maria. The court awarded Maria sole and exclusive possession of her IRA and any bank account funds held in her name or held on her behalf by Margaret. The court also awarded Maria sole and exclusive possession of the proceeds of a personal injury claim she filed during the marriage.

The court awarded Richard his IRA and the contents of his employers’ profit-sharing plan, finding that both were nonmarital property. Richard also was allowed to retain all furniture and personal property at the marital residence, as well as the 1985 Buick.

Opinion

Before we consider the arguments raised by Maria in her appeal from the trial court’s judgment, we must address Richard’s contention that Maria’s notice of appeal was filed prematurely.

In his brief on appeal, Richard claims that although the trial court’s judgment of dissolution was signed on September 12, 1990, at 11:30 a.m., it was not docketed until sometime after 4 p.m., 3V2 hours after Maria filed her notice of appeal. According to Richard, this fact was established at “an extensive conference conducted by Richard’s counsel on May 10, 1991, with numerous court clerks in the Domestic Relations Division.”

Richard has attached to his brief an affidavit prepared by his counsel detailing counsel’s discussions with the docket clerks. We find that this affidavit is incompetent and may not be used to support Richard’s claim that Maria’s appeal was premature.

In Meyerson v. Software Club of America, Inc. (1986), 142 Ill. App. 3d 87, 491 N.E.2d 150, this court held that matters in a brief not supported by the record will be disregarded and that documents which are not a part of the record will not be considered on appeal. Here, the information relied upon by Richard was not included in the record on appeal and Richard has made no request to supplement the record. Accordingly, because there is nothing in the record itself that indicates that Maria’s appeal is untimely, counsel’s affidavit and the portion of Richard’s brief addressing this issue will be disregarded.

We now turn to the merits of Maria’s appeal. Maria argues that the trial court erred in finding that the agreements she signed were valid and binding, because the evidence showed that she was unaware of the extent of Richard’s property, she was not advised to consult an attorney before executing the agreement, and Richard never intended to rely upon the agreement.

Under Illinois law, an antenuptial agreement is valid at the time of execution if the parties enter into the agreement without fraud, duress or coercion. (In re Estate of Hopkins (1988), 166 Ill. App. 3d 652, 520 N.E.2d 414.) The rules governing contract construction are applicable to such agreements (Hopkins, 166 Ill. App. 3d at 656; In re Estate of Klinker (1979), 80 Ill. App. 3d 28, 399 N.E.2d 299), and under these rules, the fundamental issue is the intention of the parties. In ascertaining this intention, the conditions and circumstances surrounding the parties at the time of the agreement should be considered. Klinker, 80 Ill. App. 3d at 30; Van Cura v. Drangelis (1963), 43 Ill. App. 2d 205, 193 N.E.2d 205.

The marriage itself is considered sufficient consideration for the agreement (Eule v. Eule (1974), 24 Ill. App. 3d 83, 320 N.E.2d 506), and because it is not essential that the agreement contain reciprocal provisions, the validity of the agreement is not impaired because one party fails or omits to waive the interest he or she would acquire in the prospective spouse’s property (Lee v. Central National Bank & Trust Co. (1974), 56 Ill. 2d 394, 308 N.E.2d 605).

Illinois law also provides that if the parties are engaged to be married before the agreement is signed, a confidential relationship exists. In that situation, a presumption of concealment arises if the provisions made are disproportionate to the extent and value of one spouse’s estate and that spouse has the burden of proving that the second spouse had full knowledge of the first spouse's property prior to signing the agreement. (Hopkins, 166 Ill. App. 3d at 656.) This presumption arises only when there is an engagement between the parties, placing them in a confidential relationship. Debolt v. Blackburn (1927), 328 Ill. 420, 159 N.E.2d 790; Yockey v. Marion (1915), 269 Ill. 342, 110 N.E.2d 34.

In the present case, the trial court accepted the testimony of Janina Dziengiel and Richard that the parties met in December 1984 and that Maria requested that Richard marry her so that she could remain in this country. The court also found that Maria signed and delivered the agreement to Richard and that it was only after this event that Richard accepted Maria’s proposal. Thus, at the time the agreement was executed there was no confidential relationship between the parties. As a result, Richard does not have the burden of proving that Maria was aware of the extent and value of his property. Hopkins, 166 Ill. App. 3d at 656.

Additionally, there was testimony from Richard that he attempted to tell Maria the extent of his property, as well as testimony from Dziengiel that she informed Maria that Richard was worth about $100,000. Although not controlling, we find that this testimony supports our conclusion that Maria’s claim that she was unaware of the extent of Richard’s property has no affect on the validity of the agreement.

Having concluded that the agreement signed by Maria meets the requirement of Illinois law, we now consider Maria’s claim that the agreement was invalid because she was not advised to consult counsel before executing it. Maria acknowledges that there is no requirement that the parties to an antenuptial agreement be represented by an attorney; however, she contends that the circumstances surrounding the execution of the agreement militate against a finding that it is valid. We disagree.

It is uncontested that Richard never requested the agreement. The trial court found that it was Maria who prepared the agreement and presented it to Richard for the purpose of facilitating her marriage and thereby remaining in this country. Under these circumstances, we find that Maria’s failure to seek legal advice before acting will not affect the validity of the agreement.

In response to Maria’s contention that the agreement is invalid because it was not Richard’s intent to rely upon it, we note the trial court’s finding that Richard accepted Maria’s proposal of marriage only after she gave him the agreement. In light of Richard’s testimony that he never would have married Maria if she had not given him the agreement, we find that the trial court correctly concluded that Richard relied on the agreement in deciding to marry Maria.

Maria’s next arguments concern the trial court’s division of the parties’ interest in the marital home. With regard to the home, Maria first points out that the trial court awarded her a lien of only $12,000 even though both she and Richard testified that she provided the $14,000 down payment from her nonmarital property. We agree that the award of only $12,000 was improper.

As Maria correctly contends, both parties testified that she contributed $14,000 toward the down payment on the marital home. In addition, the trial court specifically found in its outline that Maria’s contribution was $14,000. In its later judgment, which incorporated the Outline, the amount of Maria’s contribution was reduced to $12,000 without any explanation. Although we believe the trial court erred in making this reduction, for reasons that follow, we believe that Maria’s contribution to the marital home is subject to the same transmutation that affected Richard’s contributions.

Maria next argues that the trial court erred in finding that Richard’s use of nonmarital assets to prepay the mortgage on the parties’ home did not transmute the assets into marital property.

Section 503(c)(1) of the Illinois Marriage and Dissolution of Marriage Act provides that when marital and nonmarital property are commingled resulting in a loss of identity of the contributing estates, the commingled property shall be deemed transmuted to marital property. (Ill. Rev. Stat. 1987, ch. 40, par. 503(c)(1).) Under section 503(c)(1), there is a rebuttable presumption that a contribution of non-marital funds to a marital home held in joint tenancy constitutes a gift. (In re Marriage of Mayzner (1986), 144 Ill. App. 3d 645, 494 N.E.2d 615.) This presumption of transmutation may be rebutted by clear and convincing evidence that a gift to the marital estate was not intended. (Zito v. Zito (1990), 196 Ill. App. 3d 1031, 554 N.E.2d 541.) The fact that the commingling occurs after marital difficulties have arisen will support a finding that no gift to the marital estate was intended. In re Marriage of Guerra (1987), 153 Ill. App. 3d 550, 505 N.E.2d 748.

In the present case, Richard’s counsel argued and the trial court found that there was no intention to transmute the nonmarital assets and that the mortgage prepayments were made because of Richard’s concern that he would not be able to make future payments because of his health and his impending retirement. However, Richard denied that he was planning to retire and stated that the prepayments were made to avoid paying interest on the mortgage. Whether we accept the trial court’s finding or Richard’s explanation of the prepayments, it is clear that Richard has not presented the clear and convincing evidence necessary to rebut the presumption that the nonmarital assets used to make payments on the jointly held marital home constituted a gift to the marital estate.

We make this finding with respect to all of the mortgage prepayments, including the final payment which Richard contends was made when the parties’ relationship was severely strained. In In re Marriage of Guerra and In re Marriage of Simmons (1981), 101 Ill. App. 3d 645, 428 N.E.2d 1032, it was held that the presumption of transmutation was overcome when payments were made after the parties had separated and were no longer living together. Hére, although both parties testified that difficulties arose in the marriage beginning in December 1988, the final mortgage payment was made in March of 1989. Richard characterized the parties’ relationship at that time as nonexistent. However, the parties were still living together in the marital residence and continued to do so until December of 1989. The petition for dissolution of marriage was filed in May of 1989. Accordingly, we find Richard’s testimony insufficient to rebut the presumption of transmutation.

Finally, Maria argues that other errors committed by the trial court warrant reversal. These include the trial court’s finding that the agreement was valid, despite the fact that it contained no reciprocal waiver binding Richard, and the court’s finding that Maria had a bank account containing approximately $5,800.

The fact that an antenuptial agreement need not be reciprocal has been addressed above. (See Lee v. Central National Bank & Trust Co., 56 Ill. 2d 394, 308 N.E.2d 605.) As for Maria’s other contention, a court in a divorce proceeding has jurisdiction to determine that a spouse has an interest in property held in the name of a third person. (Van Vleet v. De Witt (1902), 200 Ill. 153, 65 N.E. 677.) Here, there was evidence before the trial court that Maria had a joint savings account with her daughter and the tax returns of Maria and her daughter showed substantial interest income for 1989. We find that based on these facts, there was support for the trial court’s finding that Maria had a savings account or that Margaret was holding funds on Maria’s behalf.

In conclusion, we affirm the trial court’s finding that the agreement signed by Maria was valid and binding. However, we reverse the trial court’s finding that Maria was entitled to a lien of only $12,000 and the finding that Richard’s use of nonmarital assets to reduce the mortgage on the marital home did not transmute those assets into marital property. Accordingly, we remand for a redetermination of the parties’ interests in the marital home.

For the foregoing reasons, the judgment of the circuit court is affirmed in part; reversed in part and remanded with directions.

Affirmed in part; reversed in part and remanded with directions.

SCARIANO and DiVITO, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SAMUEL AGYEI et al., Defendants-Appellants.
    First District (2nd Division)
    Nos. 1—90—3015, 1—90—3016 cons.
    Opinion filed July 14, 1992.

      Turner & Wolff, of Chicago (Daniel H. Wolff, of counsel), for appellants.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Donald T. Lyman, and Cory J. Pollack, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McCORMICK

delivered the opinion of the court:

Defendants, Samuel and Mary Agyei, challenge their convictions for heroin possession on grounds that police obtained the search warrant fraudulently and the prosecution violated discovery by failing to disclose an oral confession. We reverse and remand.

In January 1988, Chicago police arrested Joe Ocloo for possession of heroin. He agreed to help police find drug dealers in exchange for leniency. By January 1989, he had given police information which led to two arrests and recovery of 18 pounds of marijuana. Ocloo went to an apartment building in January 1989 to purchase heroin. After he brought the heroin to the police and told them about the transaction, police brought two complaints for search warrants for two apartments in that building, one for the apartment of Joyce and Timi Hasson, and the other for the apartment of defendants. Police found about 150 grams of brown heroin and $22,000 cash in a zipped and locked black bag in defendants’ apartment.

At hearing on defendants’ motion to quash the search warrant, Ocloo testified that he had known Samuel Agyei for about 10 years, when Samuel introduced him to Timi Hasson, in October 1988. He gave police only one sample of heroin, which he had obtained from the Hassons. He did not obtain heroin from defendants, he never told police that defendants gave him heroin and he did not go to defendants’ apartment on January 22, 1989, prior to their arrests. When police asked him where the Hassons might keep more heroin, Ocloo told them there might be some in defendants’ apartment, but he did not say he had seen heroin in that apartment.

Police Sergeant Carl Edenfield testified that on January 22, 1989, Ocloo told him he went to the Hassons’ apartment to discuss the purchase of a large quantity of heroin, and the Hassons showed him a green plastic bag containing a number of baggies of brown heroin. The Hassons gave Ocloo a small quantity of the heroin to show to the persons who were to make the large purchase through Ocloo. Ocloo told Edenfield that he then went to defendants’ apartment, and Samuel Agyei gave Ocloo a small sample of white heroin to show to the persons who were to purchase heroin through Ocloo. Samuel showed Ocloo a briefcase filled with clear plastic bags, apparently containing white heroin. Ocloo gave Edenfield two separate samples of heroin. The State presented evidence that its labs ran tests on two separate samples of heroin obtained from Ocloo.

Edenfield’s testimony essentially matched the statements in the search warrant. The trial court found Ocloo “not *** a believable witness,” so it denied the motion to quash the warrant and suppress evidence.

Defendants now argue that the trial court should have granted the motion to quash the search warrant and suppress evidence because Ocloo denied having made the statements attributed to him in the warrant and the evidence found in the search did not support the assertions made in the warrant. Police found no briefcase containing heroin in defendants’ apartment, and they found no white heroin at all in the apartment.

Search warrants are presumed valid, but if a defendant makes a substantial preliminary showing that the warrant includes false statements which the affiant police officer made with knowledge of falsity, or reckless disregard for truth, the defendant is entitled to an eviden-tiary hearing concerning the warrant. (Franks v. Delaware (1978), 438 U.S. 154, 155-56, 57 L. Ed. 2d 667, 672, 98 S. Ct. 2674, 2676.) At the hearing, “the defendant must prove his claim of perjury by a preponderance of the evidence.” (People v. Lucente (1987), 116 Ill. 2d 133, 151, 506 N.E.2d 1269.) Defendant must prove that the affiant of the search warrant (generally a police officer), rather than the nongovernmental informant, committed the perjury. Franks, 438 U.S. at 171, 57 L. Ed. 2d at 682, 98 S. Ct. at 2684; Lucente, 116 Ill. 2d at 148.

Edenfield’s testimony, if believed, is sufficient to support the search warrant; Ocloo’s testimony, if believed, is sufficient to defeat it. The State presented in corroboration of Edenfield’s testimony lab reports for two separate samples of heroin which Edenfield said Ocloo gave him before he sought the search warrants. Although there was no corroboration for the information Edenfield said Ocloo gave police, in that police found no briefcase and no white heroin in defendants’ apartment, the court could infer from this that Ocloo hoped to receive credit for another arrest, so he lied to the police about defendants. The apparent falsity of the information received does not show that the warrant must be quashed where the warrant accurately states that police had reason to believe Ocloo because he had given them correct information concerning narcotics in another case.

“In ruling on a motion to suppress, it is the trial court’s province to determine the credibility of witnesses and the weight to be given their testimony, and its findings will not be disturbed upon review [unless they are] contrary to the manifest weight of the evidence.” (People v. Myers (1978), 66 Ill. App. 3d 934, 935, 384 N.E.2d 516.)

Since the trial court found Ocloo not credible and Edenfield’s testimony is not inherently incredible, the trial court’s findings are not contrary to the manifest weight of the evidence. We will not disturb the decision denying the motion to quash the warrant and suppress evidence.

At the bench trial on the charge of possession with intent to deliver, Officer Richard Baranski testified that when he executed the search warrant for defendants’ apartment on January 22, 1989, Mary allowed police to come in. Samuel was not at home. Baranski’s partner asked Mary if she had any narcotics, and she immediately took them to the Hassons’ black bag in her bedroom closet. Police broke the zipper on the locked bag and found the brown heroin and the cash. Mary never said that she knew what was in the bag. Police found no paraphernalia related to the distribution of narcotics, like scales or baggies, in defendants’ apartment. Police arrested Mary and left word for Samuel to come to the police station.

Edenfield testified that when Samuel voluntarily came to the police station that evening, Edenfield read him the Miranda warnings and showed him the Hassons’ black bag. Samuel said he was holding the bag for Timi Hasson, and he knew it contained narcotics.

The State’s responses to discovery stated that all of defendants’ oral statements were included in police reports. On cross-examination, defense counsel elicited Edenfield’s admission that the police reports, which Edenfield signed, did not mention this confession. Defense counsel asked no questions concerning the contents or the setting of the statement to which Edenfield testified on direct.

After completing cross-examination, defense counsel moved to strike Edenfield’s testimony based on the discovery violation. The trial court agreed that the State violated discovery rules, but it held:

“[Discovery had been exploited to a large extent also by way of Franks hearing. *** I am not going to exclude that testimony, but that testimony will be given to the weight I ultimately attribute to the testimony of the sergeant.”

Mary testified that Joyce Hasson had left belongings in defendants’ apartment twice before when she had problems with Timi. The bags she left contained clothing and jewelry, as far as Mary knew. Joyce then stayed with friends until she was able to resolve her problems with Timi. On December 15, 1988, Joyce again brought defendants a zipped and locked bag for defendants to keep for her. Mary did not know the bag contained narcotics. Joyce and Timi then went on a trip to Nigeria.

When police arrived at defendants’ apartment on January 22, 1989, they asked her if she had any narcotics. She said she did not have any. The police threatened to tear up her apartment, starting with the bedroom she and Samuel shared. She then told police there was a bag in the closet which belonged to Joyce Hasson. Police said they had just been to the Hassons’ apartment, and they wanted to see the bag.

Samuel testified that when he went to the police station, he told them he did not know what was in Joyce’s bag. He did not know that Timi Hasson was in the drug business when he and his "wife agreed to keep Joyce’s bag. Samuel later agreed to help police collect information on the Hassons’ drug business.

Officer Dennis Cullom testified in rebuttal that on January 4, 1990, defendants took Cullom to a motel where they said smugglers brought narcotics for distribution. They told him many of the people involved in smuggling were cab drivers. Both Samuel Agyei and Timi Hasson worked as cab drivers. Mary Agyei told Cullom that before January 1989 she accompanied Joyce Hasson on a trip to Nigeria, and Joyce smuggled narcotics into the United States when they returned.

Officer Robert O’Neill testified that when police asked defendants for help uncovering narcotics trafficking in the Nigerian community, defendants told him they knew about the trade, and they knew Timi Hasson was a large scale smuggler.

The trial court found defendants guilty of possession of heroin, but it found insufficient evidence to support the charge of intent to deliver. The court stated only that it weighed the testimony of all witnesses in light of the evidence and it resolved issues of credibility.

Defendants contend that their convictions must be reversed because the trial court improperly admitted into evidence Samuel’s oral confession despite the State’s failure to disclose the statement in discovery. The State contends that defendants waived objection to the violation by cross-examining Edenfield regarding his failure to mention the statement in the police report. “It is well settled in this State that the admissibility of an accused’s confession or statement may be challenged by either a motion to suppress or an objection at trial, and that failure to pursue one of these devices ordinarily precludes consideration of the matter on appeal.” (People v. Calderon (1981), 101 Ill. App. 3d 469, 477, 428 N.E.2d 571.) Defendants properly objected at trial and again specifically raised the issue in their motion for new trial.

To support the waiver argument, the State relies upon the Fifth District Appellate Court’s statement:

“ ‘It has been held that where defendant objects to certain testimony on direct examination, but then questions the witness on cross-examination concerning the allegedly inadmissible testimony, any error is waived for purposes of appeal. [Citations.]’ ” (People v. Bost (1980), 80 Ill. App. 3d 933, 951-52, 400 N.E.2d 734, quoting People v. Lewis (1979), 75 Ill. App. 3d 259, 287, 393 N.E.2d 1098.)

The same court later held:

“[WJhere the defense is responding to the State’s having elicited damaging evidence over defense objections, further inquiry is not waiver.” (People v. Deal (1989), 185 Ill. App. 3d 332, 339, 541 N.E.2d 695.)

The continuing vitality of Bost is suspect. Bost does not directly apply here because defense counsel did not ask Edenfield about the oral statement itself; instead, counsel asked about the report to establish through the State’s witness that the State did not properly respond to discovery. We will not extend Bost to find waiver in this case.

The State also argues that defendants waived the objection by failing to request a continuance, citing People v. Stewart (1984), 105 Ill. 2d 22, 473 N.E.2d 840, and People v. Foster (1979), 76 Ill. 2d 365, 392 N.E.2d 6. In both of those cases, the defense found out about the statements before the State introduced them into evidence. Our supreme court found the defendants waived their objections by refusing the court’s offer of a continuance. The court expressly distinguished Foster from a case like this one, where defense counsel first heard the oral statement when a witness testified to it on the stand: in Foster, “[t]here was time to request a continuance before the testimony was heard. It was the possibility of such a motion this court was referring to.” (People v. Weaver (1982), 92 Ill. 2d 545, 559, 442 N.E.2d 255.) Since the damaging testimony was in evidence in Weaver before defendant could object, the court found the “defendant’s failure to accept a continuance not to be fatal to her position.” (Weaver, 92 Ill. 2d at 560.) Following Weaver, we find that defendant’s failure to seek a continuance in this case did not constitute waiver. Since defendants objected at trial and in their post-trial motion, they preserved for review their objection to admission into evidence of the oral confession which was not disclosed in discovery.

With limited exceptions not pertinent to this case, Supreme Court Rule 412(a) provides:

“[T]he State shall, upon written motion of defense counsel, disclose to defense counsel
(ii) any written or recorded statements and the substance of any oral statements made by the accused or by a codefendant ***.” (134 Ill. 2d R. 412(a).)

Rule 415(gXi) provides that if the court finds that a party has violated any of the supreme court discovery rules (134 Ill. 2d Rules 411 through 415),

“the court may order such party to permit the discovery of material and information not previously disclosed, grant a continuance, exclude such evidence, or enter such other order as it deems just under the circumstances.” 134 Ill. 2d R. 415(g)(i).

The legislature has mandated the proper sanction for the particular discovery violation involved in this case:

“(a) *** If the defendant has made an oral confession a list of the witnesses to its making shall be furnished.
(c) No such confession shall be received in evidence which has not been furnished in compliance with subsection (a) of this Section unless the court is satisfied that the prosecutor was unaware of the existence of such confession prior to trial and that he could not have become aware of such in the exercise of due diligence.” Ill. Rev. Stat. 1989, ch. 38, par. 114 — 10.

The State does not deny that defense counsel properly requested all pertinent statements and that the prosecutor was aware of the statement. Although the police report submitted in response to discovery indicated that Edenfield spoke to Samuel Agyei at the police station, the report stated only that Samuel said the bag belonged to the Hassons. The report did not in any way show that defendants confessed to knowing the contents of the bag.

A list of witnesses which includes the persons who heard a defendant’s oral confession, but which fails to inform defense counsel that those persons heard an oral confession, is insufficient under section 114 — 10(a). (People v. Rand (1975), 29 Ill. App. 3d 873, 876, 331 N.E.2d 15.) Edenfield admitted that the report he signed did not mention the oral confession. Therefore, as the State effectively concedes, it violated Rule 412(a) and section 114 — 10(a). The statute is mandatory; failure to comply renders a confession inadmissible. Rand, 29 Ill. App. 3d at 876; see People v. DuPree (1962), 26 Ill. 2d 320, 324, 186 N.E.2d 237.

Our supreme court has held that admission into evidence of a defendant’s statements in violation of discovery rules requires a new trial only if “defendant is prejudiced by the discovery violation and the trial court failed to eliminate the prejudice.” (People v. Cisewski (1987), 118 Ill. 2d 163, 172, 514 N.E.2d 97.) In assessing prejudice, this court must consider

“[t]he strength of the undisclosed evidence, the likelihood that prior notice could have helped the defense discredit the evidence, the feasibility of continuance rather than a more drastic sanction, and the wilfulness of the State in failing to disclose.” (Weaver, 92 Ill. 2d at 560.)

This court should also consider “the likelihood that prior notice could have helped the defense discredit the evidence.” Cisewski, 118 Ill. 2d at 172.

Edenfield’s testimony was powerful evidence against defendants, directly contradicting their sole defense that they did not know the contents of the bag. As defendants point out:

“Confessions carry ‘extreme probative weight,’ and therefore the [improper] admission of [a] *** confession rarely is harmless error.” People v. St. Pierre (1988), 122 Ill. 2d 95, 114, 522 N.E.2d 61.

The State’s failure to disclose the confession in discovery, without explanation, when the State presented Edenfield solely to testify to the oral confession, was apparently wilful. Continuance may not have been an appropriate remedy in the middle of the trial, when the damaging testimony was already in evidence. See Weaver, 92 Ill. 2d 545.

The State contends that it is unlikely that prior notice could have helped the defense, but this is unsubstantiated speculation. With notice, defense counsel could have interviewed not only Edenfield but also other officers in the area when defendant allegedly confessed, persons who discussed the case with Edenfield both before and after the alleged confession, and other persons whose testimony could undermine Edenfield’s credibility. Under similar circumstances, our supreme court found a defendant’s evidence of prejudice sufficient. Weaver, 92 Ill. 2d at 561.

The State argues that defendants were not prejudiced because the trial court in this bench trial allowed the confession into evidence for the limited purpose of affecting “the weight [the court would] ultimately attribute to the testimony of the sergeant.” The court apparently meant that it would not consider the oral confession as substantive evidence, but it would consider it as affecting the weight it would give to Sergeant Edenfield’s other testimony. However, Edenfield’s testimony at trial on direct occupies only three record pages. He testified only to his identity, the foundation for Samuel Agyei’s statement, and the content of the statement. Apart from the inadmissible confession, Edenfield gave no substantive testimony for which the court needed to assess his credibility.

In People v. Shegog (1976), 37 Ill. App. 3d 615, 346 N.E.2d 208, the appellate court found that the trial court improperly admitted an undisclosed statement into evidence in a bench trial in violation of Rule 412 and section 114 — 10. (Shegog, 37 Ill. App. 3d at 617.) The appellate court rejected the State’s contention that the error was not prejudicial, finding that the trial court considered the testimony. (Shegog, 37 Ill. App. 3d at 618-19.) While the trial court here did not state the evidence upon which it based its finding that defendants knew what was in the bag, it considered Edenfield’s testimony for some substantive purpose, since it refused to strike it, and there was no substance to the testimony apart from the inadmissible confession. We cannot presume that the trial court did not consider the confession as substantive evidence. The trial court did not eliminate the prejudice caused by the discovery violation.

Defendants contend that the case should not be remanded for retrial because the admissible evidence was insufficient to prove them guilty beyond a reasonable doubt of possession of heroin.

“To prove possession of a controlled substance, the State must show that defendant knew of its presence and that the substance was in defendant’s immediate and exclusive control. [Citation.] Knowledge may be proved by evidence of defendant’s acts, decía-rations or conduct which fairly imply that he knew of the existence of the controlled substance at the place it was found. [Citation.] Absent circumstances creating a reasonable doubt, the fact that drugs are found on premises under defendant’s control alone will support a conviction for possession. [Citation.] Exclusive possession may be established even though possession is joint or other persons have access to the premises. [Citation.] Because knowledge and possession are questions of fact, a reviewing court will not disturb the trier’s findings on those issues unless the evidence is so unbelievable, improbable or palpably contrary to the verdict that it creates a reasonable doubt as to defendant’s guilt. [Citation.] Finally, a reviewing court will not disturb the fact finder’s resolution of conflicting evidence unless it is clearly erroneous. [Citation.]” People v. Griffin (1990), 194 Ill. App. 3d 286, 292, 550 N.E.2d 1244.

Here, the prosecution proved that police found heroin in the apartment which was under defendants’ control. Defendants’ evidence that the narcotics belonged to the Hassons does not defeat proof of possession because title to narcotics is irrelevant to prosecution for possession. (People v. Kane (1975), 31 Ill. App. 3d 500, 333 N.E.2d 247.) The fact that defendants took the bag, with the intention of protecting the bag from everyone except the Hassons, is sufficient to show their control of the narcotics.

Baranski testified that when police asked Mary if she had any narcotics, she immediately showed them Joyce’s bag. Cullom and O’Neill testified that not long after their arrests, both defendants agreed to help police gather information concerning narcotics trafficking, and defendants claimed to know about the trade and the Hassons’ role as major traffickers. The trial court could infer that defendants knew the contents of the Hassons’ bag. The evidence is sufficient to support the convictions. Therefore, retrial of the charges against defendants will not constitute double jeopardy. See People v. Ealy (1986), 146 Ill. App. 3d 557, 567, 497 N.E.2d 1001.

Since we must reverse both convictions and vacate the sentences of both defendants, we do not address Samuel Agyei’s argument that the trial court abused its discretion in imposing arbitrarily disparate sentences on similarly situated codefendants.

Reversed and remanded.

HARTMAN, P.J., and SCARIANO, J., concur.


author: JUSTICE RARICK

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. LYNDELL HEINZMANN et al., Defendants-Appellees.
    Fifth District
    No. 5—90—0696
    Opinion filed August 11, 1992.
    Don Sheafor, State’s Attorney, of Vandalia (Kenneth R. Boyle, Stephen E. Norris, and Diane L. Campbell, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.

      Daniel M. Kirwan and Edwin J. Anderson, both of State Appellate Defender’s Office, of Mt. Vernon, for appellees.
   JUSTICE RARICK

delivered the opinion of the court:

The State appeals from the dismissal of charges against codefend-ants Lyndell Heinzmann and Terry Potter by the circuit court of Fay-ette County as sanction for the failure to disclose in discovery a written statement of one of the State’s witnesses (see 134 Ill. 2d R. 415). We affirm.

At the request of the sheriff’s department of Fayette County, an investigation began into the sale of stolen pigs at a local auction market. The pigs, believed to belong to Ken Shoemaker, were sold under the name of Rodney Hassebrock. Hassebrock revealed he sold the pigs for defendant Heinzmann, who supposedly had gotten the pigs in trade from Dale Nelson. Nelson, a pig farmer and employee on Shoemaker’s farm, admitted stealing the pigs but implicated codefendants Heinzmann and Potter as accomplices. The State chose to pursue prosecution of Heinzmann and Potter and charged them both with theft over $300. No charges were filed against Nelson.

During the course of the first trial of Heinzmann and Potter, defendants discovered they had only been given one of four settlement sheets pertaining to the sales of allegedly stolen pigs at the livestock auction. The remaining three sheets had been placed inadvertently in the file of the State’s Attorney. The trial court declared a mistrial, while strongly suggesting defense counsel and the State’s Attorney examine the State’s file together to ensure all other discoverable materials had been provided.

Defendants’ second trial commenced with the examination and cross-examination of Dale Nelson. During Nelson’s testimony, defendants learned Nelson had previously made a written statement to the police. This written statement, which had been placed in an evidence file by the investigating Department of Criminal Investigation (DCI) agent, also had not been disclosed in discovery. The State requested a continuance to remedy the problem; the trial court chose instead to dismiss the charges.

The State argues on appeal the trial court erred in dismissing all charges against both defendants, especially when the discovery violation was not intentional. The State candidly admits the failure to disclose Nelson’s written statement constituted a violation of the discovery rules but argues not every violation requires the dismissal of charges. As sanctions for discovery violations should be fashioned to compel compliance not punish simple oversights (see People v. Forsythe (1980), 84 Ill. App. 3d 643, 646, 406 N.E.2d 58, 61), the State believes a continuance would have been a more appropriate sanction in this instance. The State points out Nelson was still present in court and easily could be recalled. Moreover, there would have been little disruption of the trial as Nelson was the only witness who had been called at the time the dismissal was entered. The State further contends Nelson’s statement, serving primarily as impeachment, was not sufficiently material to the trial and therefore concludes it should have been given the opportunity to complete its case against defendants when, by so doing, defendants would not have been unduly prejudiced or denied a fair trial.

Before turning to the merits of the State's contentions on appeal, we first must address defendants’ argument that the State’s appeal should be dismissed on the grounds the State failed to establish jurisdiction in this court under Supreme Court Rule 604(a) (134 Ill. 2d R. 604(a)). Rule 604(a) provides:

"(1) When State May Appeal. In criminal cases the State may appeal only from an order or judgment the substantive effect of which results in dismissing a charge for any of the grounds enumerated in section 114 — 1 of the Code of Criminal Procedure of 1963; arresting judgment because of a defective indictment, information or complaint; quashing an arrest or search warrant; or suppressing evidence.” (134 Ill. 2d R. 604(a)(1).)

Section 114 — 1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1989, ch. 38, par. 114 — 1) in turn sets forth various grounds upon which a trial court may base a dismissal of an indictment, information or complaint. While dismissal based upon a discovery violation is not specifically mentioned in either Rule 604(a) or section 114 — 1, our supreme court has determined that when Rule 604(a) made explicit the right of the State to appeal on grounds set forth in section 114 — 1, it was not intended to reduce the range of the State’s right to appeal but rather was intended to make clear the State had a right to appeal from dismissals on any of the various grounds set forth in section 114 — 1. (See People v. Lawson (1977), 67 Ill. 2d 449, 455-56, 367 N.E.2d 1244, 1246-47; People v. Love (1968), 39 Ill. 2d 436, 439-40, 235 N.E.2d 819, 821-22; People v. Carpenter (1991), 221 Ill. App. 3d 58, 66, 581 N.E.2d 683, 688.) Additionally, the grounds for dismissing an indictment, information or complaint under section 114 — 1 are not exclusive. (Lawson, 67 Ill. 2d at 456, 367 N.E.2d at 1247.) As stated in Love, “The redrafting [of Rule 604(a)] was not intended to extinguish the People’s right to appeal from judgments the substantive ef-feet of which was to dismiss indictments on grounds not specified in the rule ***.” (Love, 39 Ill. 2d at 440, 235 N.E.2d at 822.) We therefore conclude we have jurisdiction to hear this appeal and accordingly proceed to the consideration of the propriety of the dismissals of charges against both defendants.

Supreme Court Rule 415 (134 Ill. 2d R. 415) provides a variety of sanctions which may be imposed for failure to comply with discovery. (People v. Manzo (1989), 183 Ill. App. 3d 552, 557, 539 N.E.2d 237, 240; People v. Leannah (1979), 72 Ill. App. 3d 504, 508, 391 N.E.2d 187, 190.) For instance, the court may order disclosure of the material, exclude the evidence, grant a continuance or “enter such other order as it deems just under the circumstances,” including dismissal. (134 Ill. 2d R. 415(g)(i); see also Forsythe, 84 Ill. App. 3d at 645, 406 N.E.2d at 60; Leannah, 72 Ill. App. 3d at 508, 391 N.E.2d at 190.) In fashioning an appropriate sanction, the trial court must evaluate the strength of the undisclosed evidence, the likelihood that prior notice could have helped the defense discredit the evidence and the willfulness of the State in failing to disclose. (Manzo, 183 Ill. App. 3d at 557-58, 539 N.E.2d at 241.) While the preferred sanction for a discovery violation, generally speaking, is a recess or continuance if the granting thereof would be effective to protect the other party from surprise or prejudice (see People v. Pondexter (1991), 214 Ill. App. 3d 79, 85, 573 N.E.2d 339, 343; People v. Carrasquillo (1988), 174 Ill. App. 3d 1023, 1032, 529 N.E.2d 603, 609), dismissal may also be appropriate especially when necessary to compel compliance and/or to ensure a fair trial (see People v. Pearson (1991), 210 Ill. App. 3d 1079, 1085, 569 N.E.2d 1334, 1338; Leannah, 72 Ill. App. 3d at 506, 391 N.E.2d at 189). In any event, the sanction to be applied rests within the trial court’s discretion and, unless there has been an abuse of that discretion, will not be disturbed on appeal. (Pondexter, 214 Ill. App. 3d at 85, 573 N.E.2d at 343; Manzo, 183 Ill. App. 3d at 558, 539 N.E.2d at 241; People v. Flores (1988), 168 Ill. App. 3d 284, 293, 522 N.E.2d 708, 714.) We find no such abuse in this instance.

It is true the State’s failure to turn over the written statement of Nelson to defendants was inadvertent. Contrary to the State’s assertion, however, under the circumstances as they existed here, such failure was prejudicial to both defendants linked together in the same crime. Nelson was a key witness for the State. Not only was he directly involved in the alleged theft of the pigs with defendants Heinzmann and Potter, he also was not charged for his participation in the crimes. As such, any testimony given by Nelson was inherently suspect. (See People v. Wilson (1977), 66 Ill. 2d 346, 349, 362 N.E.2d 291, 292; Illinois Pattern Jury Instructions, Criminal, No. 3.17 (2d ed. 1981).) Moreover, Nelson’s written statement to the police contained several inconsistencies and specifically included the name of another individual involved in the whole series of transactions who in all likelihood would have been called as an additional witness. Allowing recall of Nelson for further examination would not allow the defense the opportunity to interview this potential witness, and granting a continuance would only serve to highlight in the minds of the jurors Nelson’s incriminating testimony, the only testimony heard at that point, during any delay in trial. Obviously, exclusion of the statement or the witness would have been useless as Nelson had already testified. Additionally, the statement was more helpful to defendants than to the State. More important, however, is the fact that this was defendants’ second trial. The first trial resulted in a mistrial because of the State’s failure to disclose material evidence. At that point, the court specifically encouraged the State’s Attorney to meet with defense counsel and review the files to make sure all discoverable material had been provided. While Nelson’s statement was not present in the files of the State’s Attorney, the agent who had the statement sat at the State’s table during the trial and specifically pointed it out to the State’s Attorney once its existence was mentioned. (See People v. Miles (1980), 82 Ill. App. 3d 922, 928, 403 N.E.2d 587, 592 (duty of State to see proper flow of information between various branches and personnel of its law enforcement agencies and legal officers).) Clearly defendants were prejudiced in this instance, and other possible sanctions simply were not appropriate or no longer feasible. (See Pearson, 210 Ill. App. 3d at 1085, 569 N.E.2d at 1338; cf. Manzo, 183 Ill. App. 3d at 558, 539 N.E.2d at 241; Forsythe, 84 Ill. App. 3d at 645-46, 406 N.E.2d at 61; Leannah, 72 Ill. App. 3d at 507-08, 391 N.E.2d at 190.) Contrary to the State’s assertions, the court was protecting defendants’ rights to due process, not punishing the State. As the trial court itself so aptly mentioned in ordering dismissal of all charges, fairness requires a limit to the number of times defendants must be forced to stand trial.

For these reasons, we affirm the judgment of the circuit court of Fayette County dismissing all charges against defendants Heinzmann and Potter.

Affirmed.

HARRISON and W. LEWIS, JJ., concur.