author: JUSTICE WOODWARD

text:
    ANNEMARIE HATCH et al., Plaintiffs-Appellants, v. GOLDEN RULE INSURANCE COMPANY, Defendant-Appellee.
    Second District
    No. 2 — 89—1121
    Opinion filed October 19, 1990.
    Rehearing denied December 3, 1990.

      Paul G. Brinkman, of Wheaton, for appellants.
    Edward W. Moltzen, Sheldon A. Brenner, and Lisa M. Carrizales, all of Bresler, Brenner, Moltzen & Harvick, of Chicago, and Guy E. McGaughey, of McGaughey & McGaughey, of Lawrenceville, for appellee.
   JUSTICE WOODWARD

delivered the opinion of the court:

Plaintiffs, Annemarie Hatch (Annemarie) and Master Partners, Inc., filed a three-count complaint against the defendant, Golden Rule Insurance Company, alleging breach of an insurance contract and seeking injunctive relief and damages. Subsequently, an amended complaint was filed. Defendant filed a counterclaim for declaratory judgment. Prior to trial, count I of the amended complaint, which sought injunctive relief, was dismissed. Following a bench trial, judgment was entered in favor of the defendant, and plaintiffs appeal.

On appeal, the plaintiffs raise the following issues: whether the decision of the trial court was against the manifest weight of the evidence; and whether the trial court erred in failing to bar the testimony of defendant’s expert because he had not been disclosed to be an expert witness pursuant to Supreme Court Rule 220 (107 Ill. 2d R. 220).

Annemarie began working for Master Partners, Inc., in October 1986. As part of her employment benefits, she was to be provided with health insurance coverage. On October 25, 1986, Larry Tabor, an insurance broker employed by the Splinter Agency, came to Annemarie’s office to take her application for health insurance with the defendant, one of the companies that Splinter Agency represented. Tabor asked her the questions on the application and then wrote down her answers. Tabor then gave her the application to review and to sign. According to Annemarie, she signed the application but did not really read it. She also gave Tabor a check for the insurance premium.

In January 1987, Annemarie was hospitalized and diagnosed as suffering from bipolar depression due to medication she was receiving. Following her release from the hospital, she submitted her bills to the defendant. Defendant requested Annemarie’s consent to obtain her medical records. On June 3, 1987, she received a letter from Thomas LeGrand, a claims adjuster for the defendant. In denying her claim for insurance, LeGrand’s letter stated in pertinent part as follows:

“During the course of investigating your claim, medical records were requested and received from Dr. Chowatterkunnel [sic]. These medical records indicate significant medical history which was not reported on your application for insurance coverage. The records reviewed indicate that you had an episode of vertigo and your heart was skipping beats on October 3, 1986. At that time Dr. Chowattukunnel prescribed Ativan. ***
If the information had been shown correctly on your application, our underwriter would have been unable to issue your policy.
Now that this information is known, it is necessary to take the same action as we would have taken if the full facts had been given to us at the time you applied for insurance.
Your policy has been voided. * * *
The claim submitted for yourself is currently being denied because your policy has been voided due to the misstatement on your application.”

Defendant’s counterclaim alleged that Annemarie had made material misrepresentations when answering questions 14 and 17 on her application for insurance, both of which related to her visit to Dr. Chowattukunnel on October 3, 1986. Those specific questions are as follows:

“14. Has any person named in No. 1 (person to be covered by insurance) within the last 10 years, had any indication, diagnosis, or treatment of:
* * *
b) Any disorder of the heart or circulatory system, including high blood pressure, anemia or other blood disorder, heart attack, heart murmur, chest pain, irregular heartbeat, varicose veins or phlebitis?
* * *
17. Has any person named on this application seen a doctor in the last 5 years? If yes, give the details and the names and addresses of all doctors seen. Give details in 18 below. Include dates and reasons seen and results.”

Annemarie answered “no” to both questions.

At trial, Annemarie testified that on October 3, 1986, she had an office appointment with her family doctor, Dr. Chowattukunnel. She told the doctor that her heart seemed to be skipping beats, and she was dizzy on occasion. Dr. Chowattukunnel had an EKG performed on Annemarie, the results of which were normal. Dr. Chowattukunnel did prescribe Ativan for her, but she denied that it had anything to do with her heart. She remembered telling Larry Tabor that Dr. Chowattukunnel was her family physician because, due to the difficulty of spelling the doctor’s name, she wrote it out for him. Although she testified that she believed that she had given a full statement of her medical condition and was completely truthful when she filled out the application, she admitted that she did not tell Larry Tabor about the complaints she reported to Dr. Chowattukunnel.

Larry Tabor testified that the “no” answer to question 17 appears to conflict with the answer to question 18 which indicated that Annemarie’s son had received medical treatment within the past five years. He explained that he would check “no” to 17 where the medical treatment was explained in prior questions. In the instant case, he determined that 17 should be marked “no” after reviewing the other questions.

Thomas LeGrand testified that based upon the October 3, 1986, record of Annemarie’s visit to Dr. Chowattukunnel, which included the notation as to her heartbeat skipping, vertigo, and prescription for Ativan, a question as to whether her claim should be paid arose.

Dr. Chowattukunnel testified that he saw Annemarie on October 3, 1986, in his office. According to the doctor, his nurse writes down a patient’s complaints, and then he conducts a further interview. His nurse had noted that Annemarie complained of heartbeat skipping and dizziness. He examined her and ordered an EKG. His physical examination did not reveal any cardiac irregularity, and the EKG did not reveal any abnormality. Her pulse rate was slightly above normal limits, but her blood pressure was normal. The doctor felt that Annemarie was suffering from possible anxiety, although he did not write that diagnosis down, but he did prescribe Ativan, an anti-anxiety medicine. Ativan is not the treatment for vertigo. According to the doctor, Annemarie’s heart was normal, and there was nothing in her previous history that would indicate she ever had any heart problems.

On cross-examination, Dr. Chowattukunnel testified that Annemarie’s symptoms were consistent with anxiety. He also testified that complaints such as heart skipping beats and vertigo are important complaints.

Neal Edward Chaplin, a senior underwriter for defendant, testified over objection that had the information contained in the doctor’s notes for the October 3, 1986, office visit been disclosed by Annemarie on her application for insurance, the underwriting department would not have approved the issuance of a policy to her in the same form as the policy that was issued. It was Chaplin’s opinion that defendant would not be able to provide coverage for Annemarie because “underwriting is the assessment and classification of risk, and Dr. Chowattukunnel’s record entry that date [October 3, 1986,] provided no assessment, impression or diagnosis of the symptomology for which he prescribed treatment that day, and without an impression, assessment or diagnosis, we cannot classify the risk. Therefore, we would not assume the risk.”

On cross-examination, Chaplin testified that he was not involved in Annemarie’s file until he was asked to testify. He acknowledged that the only memo in the file from the underwriting department to the adjusting department did not discuss rescinding or denying coverage but postponing coverage. Chaplin testified that the symptomology that Annemarie described at the October 3, 1986, visit was a consideration in the underwriting decision. Chaplin explained that the underwriting manual does not have a specific section listing symptomology. Rather, the manual gives the underwriters discretionary authority to deviate from prescribed underwriting guidelines in making underwriting determinations.

Following the submission of written closing arguments, the trial court found in favor of the defendant, and this appeal followed.

We must first determine if the trial court erred in determining that Neal Chaplin was not an expert witness within the meaning of Supreme Court Rule 220 (107 Ill. 2d R. 220).

Supreme Court Rule 220 provides in pertinent part as follows:

“An expert is a person who, because of education, training or experience, possesses knowledge of a specialized nature beyond that of the average person on a factual matter material to a claim or defense in pending litigation and who may be expected to render an opinion within his expertise at trial. He may be an employee of a party, a party, or an independent contractor.” (107 Ill. 2d R. 220(a)(1).)

The rule goes on to require that the identity of such an expert be disclosed “either within 90 days after the substance of the expert’s opinion first becomes known to that party or his counsel or, if the substance of the expert’s opinion is then known, at the first pretrial conference in the case, whichever is later.” (107 Ill. 2d R. 220(b)(1).) The plain language of the rule requires that discovery regarding such expert witnesses be completed not later than 60 days before the trial date and that “[f]ailure to make the disclosure required by this rule or to comply with the discovery contemplated herein will result in disqualification of the expert as a witness.” 107 Ill. 2d R. 220(b)(1).

This court discussed the purpose of Rule 220 in Mitchell v. Wayne Corp. (1989), 180 Ill. App. 3d 796, wherein we stated:

“The purpose of Rule 220 is to facilitate trial preparation by eliminating last-minute disclosure of expert witnesses. [Citation.] The reason for Rule 220 is that adequate trial preparation requires timely disclosure of expert witnesses. Time is needed prior to trial to investigate and discuss the substance of the testimony of an opponent’s expert with one’s own experts in order to prepare for cross-examination. [Citation.] Rule 220 was therefore adopted in an attempt to establish a uniform, but not inflexible, framework for the timely revelation of the identity of expert witnesses and the subject matter of their testimony. [Citation.] The rule authorizes the establishment of deadlines and requires that the parties act in good faith to ascertain the identity of expert witnesses they reasonably anticipate using.” 180 Ill. App. 3d at 800-01.

Defendant argues that Chaplin was not an expert witness and, therefore, was not subject to disclosure under Rule 220, relying on Smith v. Central Illinois Public Service Co. (1988), 176 Ill. App. 3d 482. In that case, Smith was injured when he slipped on some ice and fell down the stairs at a plant owned by the defendant. Smith sued, inter alia, Sargent, the architectural and engineering firm. Loftus, Sargent’s project manager, testified at trial and was asked his professional opinion of the safety of the design of the gallery system. Over objections that he had not been disclosed as an expert witness, Loftus was allowed to give his opinion that the gallery system was safe and complied with all professional standards.

On appeal, the Smith court held that Loftus did not need to be disclosed as an expert under Rule 220. The court relied on our supreme court’s decision in Tzystuck v. Chicago Transit Authority (1988), 124 Ill. 2d 226. In Tzy stuck, our supreme court held that treating physicians are not experts under Rule 220; rather, they are similar to “occurrence witnesses who testify, not because they were retained in the expectation they might develop and give a particular opinion on a disputed issue at trial, but because they witnessed or participated in the transactions or events that are part of the subject matter of the litigation.” (124 Ill. 2d at 234-35.) The Smith court then stated as follows:

“These rationales apply in the instant case. Loftus was clearly known as an engineer to plaintiff long before the trial because he was the project manager for Sargent at the Newton Power Plant when [Smith] was injured. Thus, the fact that he testified is not a surprise; rather, that he gave an expert opinion surprised [Smith]. Also, Loftus was not retained as an expert for litigation. Rather, he was testifying because he was intimately involved in the project as an occurrence witness, long before any litigation was even contemplated. Therefore, we hold that a party, or an employee of a party, who is intimately involved in the subject matter of the litigation need not be disclosed as an expert witness pursuant to Rule 220(b)(1).” Smith, 176 Ill. App. 3d at 494-95.

Using the above criteria, we are of the opinion that Neal Chaplin was, in fact, an expert witness within the meaning of Rule 220 and, as such, should have been disclosed pursuant to Rule 220. First, the rule contemplates that employees of parties may be considered expert witnesses. (See 107 Ill. 2d R. 220(a)(1).) Unlike the witness in Smith, Chaplin’s identity was unknown to plaintiffs until he was called as a witness to testify. Chaplin himself testified that he was only made aware of the existence of this case when he was called upon to testify. He did not make the underwriting decision in this case and, therefore, was not so “intimately involved -with the subject matter of the litigation” as was the witness in Smith. Therefore, the trial court erred in determining that Chaplin was not an expert witness.

We note that although the trial court denied plaintiffs’ motion to bar Chaplin as an expert witness, the trial was continued in order to allow plaintiffs to take Chaplin’s deposition. Given that the clear intent of Rule 220 is to eliminate the very situation which is present here, i.e., the disclosure of an expert in the midst of trial, allowing a party to take the previously undisclosed expert witnesses’ testimony in the midst of trial does not remedy the failure to disclose. Chaplin should not have been permitted to give his opinion that defendant would not have issued a health insurance policy to Annemarie.

Given that Chaplin’s testimony went to the heart of the controversy, i.e., whether defendant would have issued a health insurance policy to Annemarie, we are of the opinion that the error in permitting Chaplin to give his expert opinion on that issue was extremely prejudicial to plaintiffs and requires that she be given a new trial. Since Chaplin’s opinion testimony should not have been permitted at the original trial of this matter, the trial court is instructed to bar his opinion testimony at any retrial of this cause.

The judgment of the circuit court is reversed, and the cause is remanded for a new trial in accordance with this court’s instructions.

Reversed and remanded with directions.

McLAREN and GEIGER, JJ., concur.


source: Caselaw Access Project

author: JUSTICE SCOTT

license: Public Domain

text:
    IBP, INC., Petitioner-Appellant, v. THE POLLUTION CONTROL BOARD et al., Respondents-Appellees.
    Third District
    No. 3 — 89—0803
    Opinion filed September 21, 1990.
    Modified on denial of rehearing November 30, 1990.
    John W. Watson and Lisa Marie Anderson, both of Gardner, Carton & Douglas, of Chicago, and Richard A. Jochum, of IBP, Inc., of Dakota City, Nebraska (Richard J. Kissel, of counsel), for petitioner.
    Neil E Hartigan, Attorney General, of Springfield (Robert Ruiz, Solicitor General, and Patricia E. Collins, Michelle D. Jordan, Joseph J. Annunzio, and Matthew J. Dunn, Assistant Attorney Generals, of Chicago, of counsel), for respondents.
   JUSTICE SCOTT

delivered the opinion of the court:

Petitioner, IBP, Inc. (IBP), owns and operates a beef slaughter and processing facility in Rock Island County, Illinois. On May 5, 1988, the Illinois Environmental Protection Agency (the Agency) issued a modified “National Pollution Discharge Elimination System” (NPDES) permit allowing IBP to operate a tannery at its Joslin facility subject to certain discharge limitations. IBP, feeling a number of the conditions to be inappropriate and unduly burdensome, filed a petition for review of the Agency’s decision with the Illinois Pollution Control Board (the Board) on June 3, 1988. Specifically, IBP sought review of the chlorine residual limit, the ammonia-nitrogen load limit and the special condition that required IBP to conduct a mixing zone study of the receiving stream to assess compliance with water quality standards.

Subsequent to IBP’s appeal to the Board, IBP and the Agency met in an effort to resolve the issues raised by IBP. Sometime between June 6, 1988, and July 18, 1989, IBP and the Agency agreed upon a settlement permit, which was delivered to the United States Environmental Protection Agency (USEPA) for comment on November 18, 1988. Public notice of said settlement permit was given on December 14, 1988, with no significant comments being received within 30 days, thereby waiving the necessity for public hearing prior to issuance of a final permit. The settlement permit purportedly provided effluent limits based upon Federal categorical standards, as well as Illinois water quality standards, and was at least as stringent as required by 35 Illinois Administrative Code section 309 for the meat processing and tanning facility. Nonetheless, on or about April 20, 1989, prior to issuance of a final permit, the Agency received a written objection to the settlement permit from the USEPA objecting to the discharge of high concentrations of ammonia and stating that the limitation for residual chlorine should be presumed highly toxic to aquatic organisms. The USEPA further indicated that to resolve the objections, it would be necessary to see an assessment of the toxicity of the effluent along with an evaluation of mixing characteristics and the receiving water impacts of IBP’s discharge. The Agency subsequently refused to issue the settlement permit to IBP as a final permit.

A hearing was later conducted before the Board on IBP’s appeal of the conditions contained in the original May 5, 1988, permit. At the hearing, IBP submitted a stipulation of facts (the Stipulation) between IBP and the Agency for addition to the record before the Board. The Stipulation stated:

“The [settlement] permit contains effluent limits based upon federal categorical standards as well as Illinois Water Quality Standards and in all respects is at least as stringent as required by 35 Ill. Adm. Code Section 309 for the combined meat processing and tanning facility.”

On September 13, 1989, the Board issued its opinion and order affirming the Agency’s conditions as set forth in the permit issued May 5, 1988. The Board noted in its opinion that its scope of review in the permit appeal was limited to the record before the Agency at the time the Agency made its permitting decision. IBP then filed a motion for reconsideration of the September 13, 1989, order on October 18, 1989. The Board, however, affirmed its prior decision on November 15, 1989. IBP thus filed with this court a petition for review seeking consideration of the September 13 and November 15, 1989, orders of the Board.

The first issue raised by IBP is that the Board incorrectly limited its review to the record before the Agency at the time the Agency issued the May 5, 1988, permit. In this case, IBP had the burden of proving at the Board hearing that no violation of the Environmental Protection Act (the Act) would occur if the permit was issued without the conditions imposed by the Agency. (Ill. Rev. Stat. 1989, ch. llD/a, par. 1039(a).) In that regard, section 40(a)(1) of the Act (Ill. Rev. Stat. 1989, ch. HV-k, par. 1040(a)(1)) states that if the agency grants an NPDES permit with conditions, the applicant may petition for a hearing before the Board to contest the conditions and said hearing shall be conducted according to rules prescribed in sections 32 and 33(a) of the Act. Section 32 provides that at such hearings any party may submit written statements or oral testimony, make written or oral arguments, cross-examine witnesses or any combination thereof. (Ill. Rev. Stat. 1989, ch. lll1^, par. 1032.) Section 33(a) provides that the Board shall then take into consideration the written or oral statements or arguments submitted at the hearing prior to making a final determination. (Ill. Rev. Stat. 1989, ch. HVJz, par. 1033(a).) Moreover, 35 Illinois Administrative Code section 105.102(b)(8) is the procedural regulation governing NPDES permit appeals before the Board. Section 105.102(b)(8) states:

“The hearings before the Board shall extend to all questions of law and fact presented by the entire record. The Agency’s findings and conclusions on questions of fact shall be prima facie true and correct. If the Agency’s conclusions of fact are disputed by the party or if issues of fact are raised in the review proceedings, the Board may make its own determination of fact based on the record. If any party desires to introduce evidence before the Board with respect to any disputed issue of fact, the Board shall conduct a de novo hearing and receive evidence with respect to such issue of fact.” (35 Ill. Adm. Code §105.102(b)(8) (1985).)

Section 105.102(b)(8) has been interpreted in no less than three prior decisions. In each of these decisions, it was held that section 105.102(b)(8) required the Board to conduct a de novo hearing and to receive and consider evidence beyond the scope of the Agency record. See Citizens Utilities Co. v. Pollution Control Board (1990), 193 Ill. App. 3d 93, 549 N.E.2d 920; City of East Moline v. Pollution Control Board (1989), 188 Ill. App. 3d 349, 544 N.E.2d 82; Dean Foods Co. v. Illinois Pollution Control Board (1986), 143 Ill. App. 3d 322, 492 N.E.2d 1344.

The Board and the Agency argue that the stipulation entered at the Board hearing was irrelevant to the issue of whether IBP could prove that the conditions imposed by the May 4, 1988, permit were not necessary to prevent violations of the Act. Moreover, that IBP failed to present any other evidence at the Board hearing relevant to the permit appeal at issue. We disagree. A stipulation between the parties certainly falls within the types of evidence which could be presented to the Board at a permit appeal hearing. It is commonly understood that stipulations are a way to expedite a hearing process and should be given the same consideration as if the evidence were presented by uncontradicted oral testimony. We agree with the Board and the Agency that evidence presented at a permit appeal hearing must be relevant to the issue at hand before it is admitted as evidence and considered by the Board. (See City of East Moline, 188 Ill. App. 3d 349, 544 N.E.2d 82.) In this case, however, we believe the stipulation entered for the record by IBP is clearly relevant to the issue of whether the conditions imposed by the Agency in its May 5, 1988, pérmit are necessary to prevent a violation of the Act. By the stipulation, the Agency has acknowledged that less stringent conditions may be imposed upon IBP which, in all respects, comply with the Federal and State water pollution standards. We make no determination as to whether this evidence is sufficient for the Board to find that the conditions imposed by the Agency’s May 5, 1988, permit are against the manifest weight of the evidence, but certainly the Board should have taken this evidence into consideration.

We find that the Board has deviated from statutory requirements and its own procedural regulations regarding the admission of new evidence at an NPDES permit appeal hearing by failing to consider the stipulation entered by IBP. Therefore, we reverse the orders of the Board dated September 13, 1989, and November 15, 1989, and remand the cause to the Board for a de novo hearing on the issue of whether the conditions imposed by the Agency’s May 5, 1988, final permit are not necessary to accomplish the purposes of the Act.

Reversed and remanded.

HEIPLE, P.J., and GORMAN, J., concur.


author: JUSTICE McLAREN JUSTICE REINHARD,

text:
      In re PETITION TO ANNEX CERTAIN TERRITORY TO THE VILLAGE OF NORTH BARRINGTON (Scott Doney et al., Petitioners-Appellants; The Village of North Barrington, Intervenor-Appellant; Marvin E. Keith et al., Objectors-Appellees).
    Second District
    No. 2 — 89—0878
    Opinion filed October 25, 1990.

      REINHARD, J., dissenting.
    Terrence J. Griffin, of Arnstein & Lehr, of Barrington (James P. Bate-man, of counsel), for appellant Village of North Barrington.
    Richard L. Wexler, of Sachnoff & Weaver, Ltd., of Chicago (Thomas J. Bamonte, of counsel), for other appellants.
    Kenneth J. Glick, of Ray & Glick, Ltd., of Libertyville (G. Jeffrey Thut, of counsel), for appellees.
   JUSTICE McLAREN

delivered the opinion of the court:

Petitioners-appellants (petitioners) filed a petition for annexation in the circuit court of Lake County. Following a hearing on petitioners’ motion for summary judgment, the court ordered amendment of the petition, deleting certain properties sought to be annexed, and directed that the amended petition be submitted to the corporate authorities of the Village of North Barrington for final action. Petitioners later moved for reconsideration and partial modification of the order. The trial court denied the motion. This appeal followed.

Petitioners, all owners of record of and/or electors residing on certain lots in a subdivision in unincorporated Lake County, submitted to the trial court a petition for annexation to the Village of North Barrington on July 28, 1988. Appellant Village of North Barrington (Village) filed a petition for intervention as an interested party soon after. The owners of lots 1, 2, 9, and 17 (objectors) filed objections to the inclusion of their property in the petition.

The court held a hearing on June 6, 1989, on petitioners’ motion for summary judgment and on any remaining objections. The court found the land in question to be a proper area to be annexed. However, the court then considered the objection of the owner of lot 1. The petition sought to annex a portion of lot 1, without which lots 9 and 14 would not be connected to the other land to be annexed. The owner of lot 1 sought to exclude its property from the annexation, contending that its property was on the perimeter of the area in question and that exclusion of its land would not destroy the contiguity of the territory proposed for annexation. Property in such a position may be excluded under section 7 — 1—3(4) of the Illinois Municipal Code of 1961 (Ill. Rev. Stat. 1987, ch. 24, par. 7 — 1—3(4)). The court found the objection to be valid and, therefore, ordered the annexation petition to be amended to eliminate the objectors’ land and lots 9 and 14, which, because of the elimination of lot 1, were no longer connected. The remainder of the petition was found to be valid, and the court directed that the amended petition be submitted to the Village of North Barrington for final action. Petitioners and the Village sought reconsideration and partial modification of the court’s order. However, such relief was denied.

The property sought to be annexed extends east and northeast of the Village of North Barrington. The portion of lot 1 at issue protrudes 656 feet from the eastern edge of the main portion of the petitioning property. Lots 9 and 14 then extend south from the eastern 325 feet of the southern border of lot 1, creating a peninsula running parallel to the border of North Barrington. Two lots not included in the petition separate this peninsula from the southern portion of the main body of land to be annexed.

Section 7 — 1—3 of the Municipal Code allows objection to an annexation petition by an interested person for the following reasons:

“(1) *** the territory described in the petition *** is not contiguous to the annexing municipality, (2) *** the petition is not signed by the requisite number of electors or property owners of record, (3) *** the description of the territory contained in the petition *** is inadequate, or (4) *** the objector’s land is located on the perimeter of such territory, *** he does not desire annexation, and *** exclusion of his land will not destroy the contiguity of such described property with the annexing municipality.” (Ill. Rev. Stat. 1989, ch. 24, par. 7 — 1—3.)

In the case at bar, the owners of lots 1, 2, 9, and 17 filed objections, seeking deletion from the annexation. The objections of lots 2 and 9 were never argued before the court, and no ruling was made as to the validity of those objections. Lot 17 was deleted by stipulation of the parties. The court allowed the deletion of the portion of lot 1 included in the petition finding that, while such a deletion would destroy the contiguity of lots 9 and 14, it would not destroy the contiguity of “the main or largest or most substantial part of the proposed annexation territory.”

We have found no support for the trial court’s theory that the statutory language “such described property” means “the main or largest or most substantial part” of the property. Indeed, such a rule is illogical. By definition, the perimeter is the “outer limits.” (Webster’s Ninth New Collegiate Dictionary 874 (1983).) A parcel of property located on the outer limit of an area to be annexed would not destroy the contiguity of most of the land to be annexed; the contiguity of most of the land is dependent upon the land located between it and the municipality, not land located on the outer limit. The trial court’s rule would require the granting of almost any objection made by a perimeter objector, so long as the contiguity of less than one-half of the remaining territory was not affected. We decline to adopt such a rule.

However, this court may affirm a judgment on any ground warranted, regardless of whether it was relied upon by the trial court or whether the reason given by the trial court was correct. (Material Service Corp. v. Department of Revenue (1983), 98 Ill. 2d 382, 387.) The grounds upon which we decide this case were raised during oral argument, and the parties were ordered to submit supplemental briefs on the issue. Accordingly, we conclude that lot 1 should have been deleted from the annexation petition. Lot 1 was the first of three lots in the appendage extending from the perimeter of the main body of land to be annexed. Of these three lots, only lot 14, the lot farthest from the main body, wanted annexation. Where an annexation petition includes an appendage of land extending from the main body of land to be annexed, the majority of the landowners in the appendage should decide the fate of the property in the appendage. In the case before us, owners of two of the three lots in the appendage objected to their inclusion in the petition. They should not be forced into the annexation for the benefit of one lot even farther removed from the annexing municipality. As the trial court noted, “[t]he owner of Lot [sic] 14 has no greater right to be included than the owner of Lot [sic] 1 has to be excluded.” We do not believe that the legislature intended a contrary outcome.

The petitioners argue that the legislature has adequately provided for the rights of minorities in annexation proceedings by including the opt-out procedure in section 7 — 1—3(4) of the Municipal Code (Ill. Rev. Stat. 1989, ch. 24, par. 7 — 1—3(4)); therefore, according to the petitioners, our ruling would provide relief not intended by the legislature. This is not so. Section 7 — 1—3(4) grants perimeter objectors the opportunity to be deleted from the area to be annexed. An appendage of land is always attached to the perimeter of the main body of land. Therefore, lands located in the appendage are on the perimeter of the land to be annexed. Our ruling today merely protects the rights of the majority of landowners in the appendage within existing legislative provisions. The sections of the Municipal Code which govern annexation are founded upon democratic notions of majority rule. By our ruling today, we strengthen the rule of the majority in the appendage and limit the tyranny of landowners located between the appendage and the annexing municipality.

This rule also fits within section 7 — 1—3(2) of the Municipal Code, which allows objection when “the petition is not signed by the requisite number of electors or property owners of record.” (Ill. Rev. Stat. 1989, ch. 24, par. 7 — 1—3(2).) Because the landowners and electors in the appendage seeking annexation did not constitute a majority, the requisite numbers were not present. Therefore, lots 1, 9, and 14 should have been excluded.

We affirm the judgment of the circuit court of Lake County.

Affirmed.

INGLIS, J., concurs.

JUSTICE REINHARD,

dissenting:

I disagree with that part of the opinion which, affirms the trial court on a ground not considered in the trial court, not raised in the initial briefs of the parties, and not urged by any of the parties in supplemental briefs filed by the parties. The majority has based its decision on the proposition that, “[wjhere an annexation petition includes an appendage of land extending from the main body of land to be annexed, the majority of the landowners in the appendage should decide the fate of the property in the appendage.” (204 Ill. App. 3d at 805.) No authority is developed or cited for this unique proposition, and, even after being ordered to brief this issue, all the parties to this appeal have found no support for this proposition in the annexation provisions of the Municipal Code (Ill. Rev. Stat. 1989, ch. 24, par. 7 — 1—1 et seq.) or case law. The majority’s creation of an “appendage” exception to annexation of land which otherwise meets the statutory requirement of being contiguous to a municipality is contrary to section 7 — 1—1 of the Municipal Code and at odds with long-established precedent that irregularity of boundaries is not a bar to annexation if the land is contiguous. In re Annexation to City of Prospect Heights (1982), 107 Ill. App. 3d 1045, 1050-51; In re Petition to Annex Certain Territory to the Village of South Barrington (1972), 7 Ill. App. 3d 958, 963; see also Western National Bank v. Village of Kildeer (1960), 19 Ill. 2d 342, 350-51.

Although the majority’s basis for- affirming the trial court is not supported by the Municipal Code or case law, its rejection of the trial court’s interpretation of section 7 — 1—3 of the Municipal Code (Ill. Rev. Stat. 1989, ch. 24, par. 7 — 1—3) in the earlier portion of the opinion is correct. A perimeter objector cannot be excluded if that exclusion would destroy the contiguity for the remaining territory to be annexed. (In re Petition for Annexation of Certain Territory to the City of Naperville, Will & DuPage Counties (1974), 24 Ill. App. 3d 908, 910-11; In re Petition for Annexation of Lands of the Village of Glen Carbon (1970), 130 Ill. App. 2d 821, 822; see also In re Petition of Westmoreland, Inc., for Annexation of Certain Territory to City of Springfield (1957), 15 Ill. App. 2d 51 (abstract of opinion).) Because exclusion of lot 1 would destroy the contiguity to lots 9 and 14, the trial court order to the contrary was against the manifest weight of the evidence and must be reversed. For the foregoing reasons, I respectfully dissent.


author: PRESIDING JUSTICE UNVERZAGT

text:
    THE CITY OF ELGIN, Plaintiff-Appellee, v. RALPH HAWTHORNE, Defendant-Appellant.
    Second District
    No. 2 — 90—0105
    Opinion filed October 26, 1990.

      Marmarie J. Kostelny, of Zimmerman & Smith, of Elgin, for appellant.
    Erwin W. Jentsch and Kathleen A. McCarthy, Assistant Corporate Counsel, of Elgin, for appellee.
   PRESIDING JUSTICE UNVERZAGT

delivered the opinion of the court:

Defendant, Ralph Hawthorne, appeals from the order of the circuit court of Kane County entering judgment on behalf of plaintiff, the City of Elgin (City), in the amount of $9,300. Defendant raises the following issues on appeal: (1) whether the trial court erred when it denied defendant’s motion for a directed verdict; (2) whether the trial court erred by reserving ruling on defendant’s motion for a directed verdict at the close of the City’s case; and (3) whether the trial court erred in revoking defendant’s conditional discharge.

The City filed a complaint against defendant on May 23, 1988, charging 26 violations of the City’s property maintenance code in regard to defendant’s ownership and occupancy of property located at 459 North Spring Street in Elgin, Illinois. On January 9, 1989, defendant appeared and pleaded guilty to the charges. Defendant was sentenced to a six-month period of conditional discharge. He was directed to bring items 12 through 23 listed in the complaint into compliance by June 26, 1989. The court also imposed a $500 fine which was to be suspended if those items were brought into compliance.

The City filed a petition on June 26, 1989, to revoke defendant’s conditional discharge, alleging that defendant had failed to bring items 12 through 23 into code compliance as ordered. On August 14, 1989, the court granted the City’s oral motion to inspect the property. The inspection was to take place on August 15, 1989, and a hearing on the petition was set for August 17, 1989. There was no court reporter present during the hearing, and no transcript, certified report or stipulated report of the proceedings has been included in the record.

Following the hearing, the court entered its order finding that defendant was in substantial compliance with items 12, 13 and 14; that defendant had failed to bring items 16, 17, 18 and the siding referred to in item 19 into compliance, but that this failure was not willful; and that defendant willfully failed to comply with the court’s order of January 9, 1989, as to items 15, 20, 21, 22, 23, and item 19 as to trim. The court also stated that, after reserving ruling, defendant’s motion for a directed verdict at the close of the City’s case was denied. The court then ordered that the $500 fine was still in effect but was stayed pending further order of the court and that a $50-per-calendar-day fine was assessed against defendant commencing June 26, 1989. The per diem fine was to be suspended if defendant was in compliance by October 2, 1989, with the items found to be willful violations. Defendant filed an appeal from this order which this court dismissed as premature.

A hearing for status on sentencing was subsequently held. Following the hearing, the court ordered: (1) that the stay of enforcement of the $500 fine previously assessed was lifted and judgment was entered in favor of the City and against defendant in the amount of $500; (2) that defendant was sentenced to a $50 per diem fine from June 26 to December 19, 1989, for willful failure to comply with repairs; (3) that judgment was therefore entered in favor of the City and against defendant in the amount of $8,800, for a total judgment of $9,300; (4) that the City’s motion to dismiss voluntarily its complaint as to the remaining items was granted; and (5) that the matter was terminated and there was no just reason to delay enforcement or appeal. This appeal followed.

Defendant argues on appeal that it was the City’s burden to prove that defendant’s failure to comply with the financial conditions of his sentence was a willful refusal to pay before an order could be entered revoking defendant’s sentence of conditional discharge. Defendant contends that the City failed to introduce any evidence regarding defendant’s financial ability to make the ordered repairs so that the trial court erred in denying defendant’s motion for a directed verdict at the close of the City’s case, in reserving ruling on the motion and therefore forcing defendant to make the difficult decision whether to present evidence regarding his ability to pay, and in revoking defendant’s conditional discharge.

Defendant has referred to his motion as a “motion for a directed verdict” and has cited a statute and case which are applicable to such a motion. As the hearing was held before a judge and not a jury, the motion was made pursuant to section 2 — Ill. of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1110). This statute provides that the motion is waived if the defendant proceeds to adduce evidence in support of his or her defense. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1110.) As defendant has conceded in his brief that he presented evidence after making the motion, he has waived any complaint that the circuit court’s ruling on the motion was erroneous. Fear v. Smith (1989), 184 Ill. App. 3d 51, 55.

The remaining issue, therefore, is whether the trial court improperly revoked defendant’s sentence of conditional discharge. Defendant argues that a sentence of conditional discharge cannot be revoked if the only claim of violation is a defendant’s failure to meet financial obligations which he has no ability to meet. He contends that the City failed to present any proof as to defendant’s ability to meet the financial conditions imposed by the court’s order and that the court failed to make a specific finding regarding defendant’s ability to meet the imposed financial conditions.

Defendant bases this argument on sections 5 — 6—4.1(c) and (d) of the Unified Code of Corrections (Code) (Ill. Rev. Stat. 1989, ch. 38, pars. 1005 — 6—4.1(c), (d)). He cites People v. Harder (1975), 59 Ill. 2d 563, People v. Boucher (1974), 57 Ill. 2d 225, People v. Sus berry (1979), 68 Ill. App. 3d 555, and People v. Bullard (1977), 52 Ill. App. 3d 712, for the proposition that it is incumbent upon the State to prove that a defendant’s failure to comply with the financial conditions of a sentence is a willful refusal to pay before an order can be entered revoking a defendant’s sentence of conditional discharge.

We note that the cases cited by defendant in support of his argument all involved situations where a sentence of probation was revoked and a term of imprisonment imposed. The courts held that, under sections 5 — 6—4(c) and (d) of the Code (Ill. Rev. Stat. 1989, ch. 38, pars. 1005 — 6—4(c), (d)), there must be a finding that any failure to pay is willful before probation can be revoked based on the failure to comply with a financial obligation (Boucher, 57 Ill. 2d at 228) and that it is the State’s burden to prove a willful refusal to pay (Harder, 59 Ill. 2d at 567; Susberry, 68 Ill. App. 3d at 562; Bullard, 52 Ill. App. 3d at 714). Defendant has cited no authority, and we have found none, which holds that the same is true under sections 5 — 6—4.1(c) and (d) (Ill. Rev. Stat. 1989, ch. 38, pars. 1005 — 6—4.1(c), (d)), which defendant concedes is the statute that applies here, and where no term of imprisonment is imposed.

There is also a question as to whether the burden is applicable to a municipality. A prosecution for violation of a municipal ordinance, while quasi-criminal in nature, is civil in form and is tried and reviewed as a civil proceeding. (City of Naperville v. Bernard (1985), 139 Ill. App. 3d 784, 785; Village of Mundelein v. Taylor (1985), 130 Ill. App. 3d 819, 822.) The court in City of Urbana v. Fuerst (1988), 172 Ill. App. 3d 570, 573, held that section 5 — 9—1(d) of the Code (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 9—1(d)), which requires that the court consider a defendant’s resources and ability to pay a fine in determining the amount and method of payment of the fine, does not apply to proceedings for violations of municipal ordinances. The court stated, “[b]ecause of the necessity of dealing with many ordinance violation cases rapidly, imposing a requirement that a record be made in each case of consideration by the court of the section 5 — 9—1(d) elements would not seem wise.” (City of Urbana, 172 Ill. App. 3d at 573.) The same may well be true as far as imposing a burden on a municipality to prove a defendant’s willful failure to pay before a sentence of conditional discharge may be revoked.

In any case, even assuming such a requirement does exist in this type of situation, we agree with the City that the trial court must be affirmed because defendant has not furnished a sufficient record to establish reversible error. No verbatim transcript, certified report of proceedings or stipulated report of proceedings of the August 17, 1989, hearing or the hearing preceding the December 19, 1989, order has been presented to this court. (See 107 Ill. 2d Rules 323(c), (d).) It is incumbent upon the party seeking review of a judgment to present a record of the proceedings and judgments showing the errors of which he complains. (Waitcus v. Village of Gilberts (1990), 199 Ill. App. 3d 102, 107.) Any doubts which may arise from the incompleteness of the record will be resolved against defendant. (Foutch v. O’Bryant (1984), 99 Ill. 2d 389, 392; Northern Illinois Gas Co. v. Midwest Mole, Inc. (1990), 199 Ill. App. 3d 109, 118.) “Where the determination on appeal of whether a particular decision of the trial court constituted error depends on an examination of the evidence, and the record on appeal does not show or purport to show all pertinent evidence on which the decision is based, the reviewing court will presume that the evidence omitted supports the decision of the trial court.” W.E. Mundy Landscaping & Garden Center, Inc. v. Hish (1989), 187 Ill. App. 3d 164, 166.

The court did specifically find that defendant’s failure to make certain of the repairs was willful. This finding was adequate to support an order of revocation. As we have no record of what evidence was presented at the hearings, we cannot possibly make a determination as to whether the court’s finding was in error.

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

Affirmed.

DUNN and WOODWARD, JJ., concur.


author: PRESIDING JUSTICE KNECHT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. HEATH A. BAUMAN, Defendant-Appellee.-THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. RICHARD A. BOESENBERG, Defendant-Appellee.
    Fourth District
    Nos. 4 — 90—0065, 4 — 90—0066 cons.
    Opinion filed October 11, 1990.
    Rehearing denied November 26, 1990.

      John Robinson, State’s Attorney, of Sullivan (Kenneth R. Boyle, Robert J. Biderman, and David E. Mannchen, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Daniel D. Yuhas and Lawrence Bapst, both of State Appellate Defender’s Office, of Springfield, for appellees.
   PRESIDING JUSTICE KNECHT

delivered the opinion of the court:

Defendants Bauman and Boesenberg were charged by information with possession of cannabis (between 30 and 500 grams) with intent to deliver (Ill. Rev. Stat. 1987, ch. 56V2, par. 705(d)), possession of cannabis (between 30 and 500 grams) (Ill. Rev. Stat. 1987, ch. 56V2, par. 704(d)), and armed violence (Ill. Rev. Stat. 1987, ch. 38, par. 33A — 2). The defendants filed motions to suppress evidence and statements, and the trial court granted the motions following a consolidated hearing. The State appeals, pursuant to Supreme Court Rule 604 (107 Ill. 2d R. 604). The sole issue for review is whether the trial court’s order suppressing the evidence and statements was manifestly erroneous.

The following evidence was adduced at the motion hearing. A public park and parking lot open daily to the general public sit directly across the street from Sullivan High School. The park closes at 11 p.m. and the only posted parking regulation prohibits parking after 11 p.m.

Sullivan High School students congregate in the parking lot during lunch recess. Mr. John Raymer, principal at Sullivan High School, suspected the occurrence of illegal activities in the parking lot during the lunch recess. He contacted the Sullivan police department, and Police Chief Hansen agreed to order patrols of the parking lot during the lunch hour. The purpose of the patrols was to monitor nonstudents present at the parking lot and mingling with students.

Officer Donald Tipper regularly patrolled the parking lot during the noon hour. He testified he believed his task was to look for non-students and determine whether students were involved in illegal activities.

On October 24, 1989, while parked in the parking lot and talking to students, Tipper observed a car in the lot with students gathered around it. The two men in the car were the defendants. Tipper recognized Boesenberg, the passenger, but not the driver, Bauman. Tipper asked the students with whom he was talking whether they recognized the occupants of the car as Sullivan High School students. They did not. Just as the car began to leave the parking lot, Tipper instructed a student to whom he was talking to yell at the car’s occupants to “hold up a minute.” The student complied and yelled something like “hold up a minute” or “the cop wants to talk to you.”

The car stopped immediately. Tipper exited his car and walked toward the defendants’ car. As he walked, he said “hold on a minute, I want to talk to you.” He testified he raised his voice to be heard, but did not use a belligerent or threatening tone. He never blocked the car’s exit or turned on his squad car’s siren or lights. He did not threaten the defendants with arrest if they did not stop.

Tipper asked to see Bauman’s driver’s license and checked its validity. The license was valid and had no outstanding stops or warrants. Tipper asked Bauman why he was in the parking lot and whether he was a Sullivan High School student. Bauman told him he was not a student at Sullivan High School. The officer did not question Boesenberg.

While talking with Bauman, Tipper noticed the smell of burned cannabis emanating from the car’s interior. He asked Bauman whether he and Boesenberg had been smoking pot, and Bauman answered in the negative. Tipper then asked him why his eyes were glassy and bloodshot. Bauman did not respond but Boesenberg exited the car, walked around to the driver’s side and told Tipper Bauman’s eyes always looked red and bloodshot. Tipper again asked whether either had been smoking pot. Bauman remained silent while Boesenberg said “no.” Tipper informed the defendants they should not be in the parking lot during the noon hour because they were not Sullivan High School students. Boesenberg got back in the car and the defendants drove away.

Stacy Huckstep, a student at Sullivan High School, then approached Tipper and told him “she just bought some pot” from the defendants or “they just bought some pot.” Tipper knew Stacy and, believing her accusation to be true, he left the parking lot and pursued the defendants. He stopped the defendants several blocks from the school and, for the first time, noticed an “applied for” sticker in the car’s back window. He admitted this was not the reason he stopped the defendants.

As Tipper approached the car, he noticed Boesenberg bending forward, as if reaching underneath his seat. The officer informed Bauman he still smelled the odor of burned marijuana. He asked for and received permission to search the car. A pat-down search of Bauman revealed no contraband, nor did the pat-down of Boesenberg. A search of the car netted three marijuana cigarettes, a marijuana smoking device under the passenger seat, and a burned marijuana cigarette.

After advising Bauman and Boesenberg they were under arrest, a second search of Boesenberg revealed three plastic baggies of marijuana in the crotch of his pants. At the police station, after Miranda warnings, each defendant separately confessed to possession of cannabis with intent to sell. A search of the car, pursuant to a warrant, located another baggie of cannabis and a butterfly knife.

Huckstep testified a friend told her Boesenberg had pot and planned to sell it to “little kids.” This angered Huckstep, and so she told Tipper the defendants had cannabis. She testified Tipper never questioned her or attempted to verify her claim and searched the defendants’ car while it was in the parking lot. The parties subsequently stipulated there was no search at the parking lot.

The trial court concluded the encounter in the parking lot was an illegal stop. The court further found Huckstep’s information completely lacked credibility (“In other cases involving citizen informants, or informants there must be some inditia [sic] of credibility. I don’t think there was any at this point in time”) and Tipper had no articulable facts supporting probable cause or a reasonable suspicion when he stopped the car. The court therefore suppressed the evidence and statements.

This court will not disturb the trial court’s rulings on the motions to suppress unless they were against the manifest weight of the evidence. People v. Murray (1990), 137 Ill. 2d 372, 387; People v. Long (1983), 99 Ill. 2d 219, 231, 457 N.E.2d 1252, 1257.

The Illinois Supreme Court has divided police-citizen encounters into three tiers. (Murray, 137 Ill. 2d at 387.) The first involves an arrest and requires probable cause. The second tier involves a “Terry” stop, “a brief seizure that must be supported by a reasonable suspicion of criminal activity.” (Murray, 137 Ill. 2d at 387.) The last tier involves no coercion or detention and therefore involves no seizure. The last tier is known as the community caretaking function or the public safety function.

“The Supreme Court elaborated on this level of police intrusion in Terry when it noted that ‘[ojbviously, not all personal intercourse between policemen and citizens involves “seizures” of persons. Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a “seizure” has occurred.’ Terry v. Ohio (1968), 392 U.S. at 19 n.16, 20 L. Ed. 2d at 905 n.16, 88 S. Ct. at 1879 n.16 ***.” Murray, 137 Ill. 2d at 387-88.

“[A] person has been ‘seized’ within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” (United States v. Mendenhall (1980), 446 U.S. 544, 554, 64 L. Ed. 2d 497, 509, 100 S. Ct. 1870, 1877; People v. Clark (1989), 185 Ill. App. 3d 231, 236, 541 N.E.2d 199, 202.) An element of force or of threatened force constitutes the restraint on the freedom to walk away, the essence of a seizure. (People v. Tilden (1979), 70 Ill. App. 3d 859, 862, 388 N.E.2d 1046, 1049; Mendenhall, 446 U.S. at 554, 64 L. Ed. 2d at 509, 100 S. Ct. at 1877.) The parking lot encounter did not involve force or threat of force. Nothing in Tipper’s words or tone of voice could have led the defendants to conclude they were not free to leave. He never displayed his weapon or activated the lights or sirens on his squad car while in the parking lot. We conclude there was no seizure of the defendants.

Nor was the parking lot encounter between Officer Tipper and the defendants a stop, as defined in Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868. Instead, Officer Tipper was engaged in a community caretaking function. (Murray, 137 Ill. 2d at 388.) The purpose of his patrol assignment at the parking lot was to monitor the activities of nonstudents, thereby reducing illegal activities. When the high school students to whom Tipper was talking indicated the defendants were not Sullivan High School students, Tipper was justified in approaching the car and determining whether they were students. His approach of the car and the examination of Bauman’s driver’s license was not a situation to which the fourth amendment applied and thus we find nothing constitutionally improper in Tipper’s conduct.

The defendants urge the application of Delaware v. Prouse (1979), 440 U.S. 648, 59 L. Ed. 2d 660, 99 S. Ct. 1391. There, a police officer stopped a car to check the operator’s driver’s license and the car’s registration. He had neither probable cause nor reasonable suspicion to believe the car was being driven in violation of motor vehicle laws or that either of its occupants was subject to seizure for violation of any other law. When he reached the vehicle he observed marijuana in plain view on the car’s floor. The Court found the officer’s conduct unreasonable because he could articulate no reasonable suspicion of a violation of a law by the car’s occupants:

“[W]e hold that except in those situations in which there is at least articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of law, stopping an automobile and detaining the driver in order to check his driver’s license and the registration of the automobile are unreasonable under the Fourth Amendment.” Prouse, 440 U.S. at 663, 59 L. Ed. 2d at 673, 99 S. Ct. at 1401.

The defendants maintain the Prouse case is analogous to this case. Tipper, like the officer in Prouse, stopped the defendants’ car solely to determine their identities. He testified he observed nothing about the vehicle or its occupants that aroused suspicion or formed a basis for probable cause. Prouse is distinguishable, however, because the officer there, unlike Officer Tipper, did not act in a community caretaking capacity. Indeed, the officer in Prouse indicated he stopped the car because he was bored. “ T saw the car in the area and wasn’t answering any complaints, so I decided to pull them off.’ ” Prouse, 440 U.S. at 650-51, 59 L. Ed. 2d at 665, 99 S. Ct. at 1394.

The State next argues even if the parking lot encounter was a stop, it was a reasonable stop justified by the government’s interest in protecting children from drugs. The State’s interest in providing such protection is manifested, according to the State, in the statute prohibiting the manufacture, delivery, or sale of controlled substances to persons under 18 years of age on school property. (Ill. Rev. Stat. 1987, ch. 56V2, par. 1407.) Because we have concluded the encounter in the parking lot was not a stop, we need not address this argument.

The next question is whether the second stop was constitutionally valid. During the encounter in the parking lot, Tipper learned the defendants were not Sullivan High School students. Upon questioning them, he smelled burned cannabis in their car and observed Bauman had glassy, bloodshot eyes. This information, coupled with Huckstep’s information, provided him with sufficient probable cause to stop the defendants and search their persons and the car. Tipper had no reason to doubt Huckstep’s information, nor was he required in these circumstances to further corroborate it.

“Generally, probable cause to arrest exists where the circumstances within the arresting officer’s knowledge are sufficient to warrant a man of reasonable caution to believe an offense has been committed and that the person arrested committed the offense. (People v. Tisler (1984), 103 Ill. 2d 226, 469 N.E.2d 147; People v. Creach (1980), 79 Ill. 2d 96, 402 N.E.2d 228.) In determining whether the officer had probable cause, the officer’s factual knowledge based on his prior law-enforcement experience is sufficient. (People v. Tisler (1984), 103 Ill. 2d 226, 469 N.E.2d 147.) Further, probable cause may be founded upon evidence which would not be admissible at trial and which need not be sufficient to establish guilt beyond a reasonable doubt. (People v. Green (1980), 88 Ill. App. 3d 929, 410 N.E.2d 1003.) In fact, even hearsay is proper grounds for establishing probable cause. * * * Provided that the person supplying the data is a citizen-informer and not a police informer, the police do not have to establish the informer’s prior reliability or to corroborate the information. (People v. Beto (1980), 86 Ill. App. 3d 622, 408 N.E.2d 293.)” People v. Johnson (1989), 187 Ill. App. 3d 756, 771, 544 N.E.2d 392, 401.

The evidence seized and statements made by the defendants following the consensual search of the car should not have been suppressed. The evidence and the statements were not the “fruits of a poisonous tree,” as the first encounter was valid. There was sufficient probable cause to support the stop and search made after the defendants left the parking lot. The trial court’s rulings on the motions to suppress are reversed and the causes remanded.

Reversed and remanded.

SPITZ and McCULLOUGH, JJ., concur.


author: JUSTICE McCULLOUGH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TIMOTHY SCHMITT, Defendant-Appellant.
    Fourth District
    No. 4 — 89—0264
    Opinion filed October 25, 1990.
    Rehearing denied November 27, 1990.

      Daniel D. Yuhas and David Bergschneider, both of State Appellate Defender’s Office, of Springfield, for appellant.

      Scott H. Walden, State’s Attorney, of Quincy (Kenneth R. Boyle, Robert J. Biderman, and Denise M. Ambrose, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

An Adams County jury convicted the defendant of aggravated criminal sexual assault (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 14) and criminal sexual assault (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 13). At trial, the victim, defendant’s nine-year-old son, C.S., testified via closed circuit television, as permitted by section 106A — 3 of the Code of Criminal Procedure of 1963 (Code) (Ill. Rev. Stat. 1987, ch. 38, par. 106A — 3). On appeal, the defendant challenges the constitutionality of this procedure, raises a denial of due process claim, various evidentiary issues, and urges an amendment to the sentencing order to clarify discrepancies in the entries.

C.S.’s parents were divorced when he was five years old. His mother has legal custody but C.S. visited his father, the defendant, every weekend at the house where defendant and the defendant’s mother lived. C.S. testified that, on occasion, the defendant asked him to lie down on a couch. The defendant would then remove C.S.’s pants and underwear and lick his penis. C.S. told his grandmother, Dorothy Post, defendant also licked his rectum.

C.S. stopped visiting the defendant in July 1988 after Post observed C.S. licking the buttocks of one of his cousins. When she confronted him with the behavior, C.S. denied licking his cousin. Post then asked, “Who did that, [C.S.]? Did you get that from Mindy or Tim?” C.S. testified he told her he got it from Tim, his father. Post testified C.S. told her he learned the behavior from his dad.

The defendant was charged by information with aggravated criminal sexual assault and criminal 'sexual assault. He subsequently filed several motions in limine, including a motion to prohibit the State from calling an expert witness to testify about rape-trauma syndrome. At the hearing on this motion, the prosecutor represented to the court, Judge Cashman, that C.S. had been traumatized by the abuse and had become hostile and angry, and suffered nightmares and bed-wetting.

Subsequently, the State filed a motion to videotape C.S.’s testimony pursuant to section 106A — 2 of the Code. (Ill. Rev. Stat. 1987, ch. 38, par. 106A — 2.) The State argued the procedure was necessary to protect C.S. from further trauma:

“I think at his age he doesn’t have the ability to put in perspective the seriousness of the sexual acts or the fact that his first sexual experience may have well been a homosexual experience with his father. To ask this child to get in front of 12 people, 14 people with alternates, and describe this type of sexual relations with his father I think is going beyond what we could ever appropriately accomplish in a court of justice.
* * *
The psychological reports that I have seen could show a rather fragile child that will suffer consequences and will suffer consequence no matter what we do. If we don’t do anything, he suffers. If we do, he suffers. I hope we can just minimize it by videotaping.”

Judge Cashman denied the motion, after determining the statute was unconstitutional. (On June 19, 1989, the Illinois Supreme Court found the videotape statute unconstitutional. People v. Bastien (1989), 129 Ill. 2d 64, 541 N.E.2d 670.)

The State then filed a motion to allow C.S.’s testimony via closed-circuit television. The State argued the procedure was in C.S.’s best interest:

“[I]n this situation we are dealing with a nine-year-old child. He is the son of the Defendant, and to ask a child at that age to describe for a huge courtroom that is a gigantic courtroom to a youngster, in front of 14 strangers that his first sexual experience is a homosexual experience with his father is per se overwhelmingly psychologically damaging. You can’t assume that any child would be able to comfortably and clearly describe his experiences.”

The defendant objected to the motion, claiming the procedure would violate his rights under the confrontation clause. He also argued the State failed to show the procedure was necessary. Judge Welch presided at this motion hearing and overruled the defendant’s objections. Judge Welch specifically found the closed-circuit television procedure was in C.S.’s best interest.

At trial, C.S. was the first witness and testified by closed-circuit television. The prosecutor, defense counsel, defendant, Judge Welch, C.S., and C.S.’s mother were in the judge’s chambers during C.S.’s testimony, which was broadcast into the courtroom for the jury. There were two television monitors in the courtroom. A clear, color picture and clear sound were transmitted instantaneously from the judge’s chambers to the courtroom. The defendant was not screened from C.S.’s sight. The camera focused on C.S.’s upper body and face.

Before leaving the courtroom to go to chambers, Judge Welch explained to the jury that C.S. would testify by closed-circuit television from chambers. He told the jury who would be in the room with C.S. during his testimony and who would remain in the courtroom. He also explained how the equipment functioned and instructed the jury to adjust the television monitors in the courtroom if necessary. The bailiff remained in the courtroom and was to notify the court immediately if there were equipment problems in the courtroom.

The defendant also testified at trial and denied ever licking C.S.’s penis. He hypothesized that C.S. made the statements to avoid punishment for licking his cousin. The jury convicted the defendant on both counts and the circuit court sentenced him to nine years’ imprisonment.

The first issue is whether the circuit court violated the defendant’s right of confrontation under the sixth amendment of the United States Constitution and under article I, section 8, of the Illinois Constitution when it permitted C.S. to testify via closed-circuit television. The defendant argues his constitutional right of confrontation was violated because the jury was not present in the room with C.S. while he testified and because the State failed to show the procedure was necessary.

The right of confrontation is unique to the defendant and functions to guarantee the defendant a face-to-face meeting with witnesses appearing before the trier of fact. (Coy v. Iowa (1988), 487 U.S. 1012, 1016, 101 L. Ed. 2d 857, 864, 108 S. Ct. 2798, 2800.) This right of confrontation:

“(1) insures that the witness will give his statements under oath — thus impressing him with the seriousness of the matter and guarding against the lie by the possibility of a penalty for perjury; (2) forces the witness to submit to cross-examination ***; (3) permits the jury that is to decide the defendant’s fate to observe the demeanor of the witness in making his statement, thus aiding the jury in assessing his credibility.” California v. Green (1970), 399 U.S. 149, 158, 26 L. Ed. 2d 489, 497, 90 S. Ct. 1930, 1935.

This case does not present a confrontation problem. The statute specifically includes the defendant and his attorney in the room where the child is testifying (Ill. Rev. Stat. 1987, ch. 38, par. 106A— 3). The trial court here followed the provisions of the statute, and the defendant and his attorney were in the judge’s chambers while C.S. testified. The defendant was thus afforded face-to-face confrontation with C.S. and an opportunity to cross-examine the child. The defendant’s attorney cross-examined C.S., who testified under oath and indicated he understood the importance of telling the truth.

“[T]he Confrontation Clause is generally satisfied when the defense is given a full and fair opportunity to probe and expose these infirmities [such as forgetfulness, confusion, or evasion] through cross-examination, thereby calling to the attention of the factfinder the reasons for giving scant weight to the witness’ testimony.” (Delaware v. Fensterer (1985), 474 U.S. 15, 22, 88 L. Ed. 2d 15, 22, 106 S. Ct. 292, 295.)

The defendant in this case was given full opportunity to probe and expose infirmities in C.S.’s testimony. C.S. was not forgetful, confused, or evasive. Instead, his testimony was clear, convincing, unrehearsed, and reliable.

The final function of the confrontation right is allowing the jury to observe the witness’ demeanor. The jury here had adequate opportunity to assess the child’s demeanor while he testified, though the jury was not in the room with C.S. The television camera provided a clear view of C.S.’s upper body, face, and facial expressions and the picture was transmitted in color. The camera angle may have afforded the jury a closer view of C.S. than would have been possible from the witness stand in the courtroom.

We reject the defendant’s arguments that the jury could not sufficiently assess C.S.’s demeanor because his entire body was not shown. Likewise, we reject the defendant’s argument that there was error because the camera failed to show the entire room and those present. As stated heretofore, defendant was present during C.S.’s testimony, to cross-examine, to expose infirmities, and to call to the attention of the jury, as fact finder, reasons to give “scant weight” to the same. We find no error or unfairness, particularly in view of Judge Welch’s comments to the jury in which he listed those persons who would be in chambers during C.S.’s testimony.

The defendant also contends the State failed to show the closed-circuit-television procedure was necessary in this case. The statutory standard is not necessity but “the best interest of the child.” (Ill. Rev. Stat. 1987, ch. 38, par. 106A— 3.) Judge Welch specifically found the closed-circuit television procedure was in C.S.’s best interest. The record supports this finding and thus there was no abuse of discretion.

Further, the statute does not require a hearing to determine whether the best interest of the child would be served by allowing him to testify via closed-circuit television. The defendant would have this court require such a hearing. The legislature did not impose such a requirement and therefore we decline to do so. Had the legislature intended to require a hearing, it would have so provided. For exam-pie, the legislature provides a hearing when section 115 — 10 of the Code is invoked (Ill. Rev. Stat. 1987, ch. 38, par. 115 — 10). That statute provides a hearsay exception in prosecutions for sexual abuse of a child under age 13 if “[t]he court finds in a hearing,” while 106A — 3 states the court may “upon finding that it is in the best interest of the child.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 38, pars. 115— 10(b)(1), 106A — 3.) In this case the representations of the prosecutor to the court, that closed-circuit television was in C.S.’s best interest, provided a sufficient basis for the finding by the court.

The defendant urges application of the recent United States Supreme Court decision in Maryland v. Craig (1990), 497 U.S. _, 111 L. Ed. 2d 666, 110 S. Ct. 3157. The Craig decision is distinguishable on several grounds and thus inapplicable to this case.

The defendant in Craig owned and operated a prekindergarten and kindergarten center. She was accused, and convicted of sexually abusing six-year-old B.E. The State moved to allow B.E. to testify via closed-circuit television and introduced expert testimony that B.E. would suffer “ ‘serious emotional distress such that [[she] could not] reasonably communicate,’ [citation], if required to testify in the courtroom.” Craig, 497 U.S. at _, 111 L. Ed. 2d at 676, 110 S. Ct. at 3161.

The defendant challenged the constitutionality of the statute, alleging it denied her the right of confrontation. Unlike the Illinois statute, the Maryland statute excluded the defendant from the room where the child testified and required the defendant to observe theproceedings by closed-circuit television. Thus the Craig case involved confrontation clause issues.

The Court concluded Maryland’s closed-circuit television procedure preserved the requisites of the confrontation clause.

“[T]he child witness must be competent to testify and must testify under oath; the defendant retains full opportunity for contemporaneous cross-examination; and the judge, jury, and defendant are able to view (albeit by video monitor) the demeanor (and body) of the witness as he or she testifies.” Craig, 497 U.S. at _, 111 L. Ed. 2d at 682, 110 S. Ct. at 3166.

Various decisions, including Craig, require a showing that the child needs special protection before the procedure may be employed. (Coy, 487 U.S. at 1020-21, 101 L. Ed. 2d at 866-67, 108 S. Ct. at 2802-03.) “After Coy, it is clear that such a procedure, which shields the child witness from facing the defendant during the testimony, is constitutionally acceptable, if at all, only if there is an individualized finding that the -witness is in need of such protection.” (Bastien, 129 Ill. 2d at 73, 541 N.E.2d at 674.) The Maryland statute required a determination by the judge “that testimony by the child victim in the courtroom will result in the child suffering serious emotional distress such that the child cannot reasonably communicate.” Md. Cts. & Jud. Proc. Code Ann. §9 — 102(a)(l)(ii), at 412 (1989).

As discussed earlier, the Illinois statute requires only a finding that the closed-circuit television procedure would be in the child’s “best interest.” (Ill. Rev. Stat. 1987, ch. 38, par. 106A — 3.) The trial court here made an individualized finding that C.S.’s best interest would be served by allowing him to testify by closed-circuit television.

Thus, Craig is also distinguishable as to the statutory showing required to invoke the closed-circuit television procedure.

The circuit court in this case complied with the statutory requirements for using closed-circuit television. The court first determined such a procedure would be in C.S.’s best interest. Only those persons enumerated in the statute were permitted in the judge’s chambers while C.S. testified and his testimony was transmitted to the jury in the courtroom. C.S. testified under oath in the physical presence of the defendant and the defendant’s attorney cross-examined the child. The defendant was not denied his rights under the confrontation clause when C.S. testified via closed-circuit television.

The defendant contends the closed-circuit television procedure denied him due process. We disagree. The statute which allowed C.S. to testify by closed-circuit television was constitutional and followed meticulously by Judge Welch. There was no denial of due process.

The defendant next objects to the admission of Post’s testimony that C.S. told her the defendant licked C.S.’s rectum, because he was charged only with having licked the child’s penis. The defendant claims this testimony violated section 115 — 10 of the Code.

Prior to admitting corroborative-complaint testimony, the circuit court held a hearing pursuant to section 115 — 10(b)(1). At this hearing, Post testified C.S. told her he was being touched by his dad in that he was licked on his penis and his butt. Defense counsel argued section 115 — 10 only permits witnesses to corroborate that a complaint was made, but no details of the complaint. After hearing Post’s testimony, the trial judge concluded identification of the perpetrator was unnecessary, and ruled Post could testify “that he [C.S.] told her [Post] he was licked on the penis and on the butt.” The judge reiterated this latter aspect of the ruling before hearing the State’s offer on the police officer’s corroborative-complaint testimony. Defense counsel made no objection to Post testifying that C.S. complained of being licked on the butt.

In proceedings before the jury, the prosecutor asked Post whether C.S. identified where on his body he had been licked, and Post answered, “on his penis and on his rectum.” Several questions later, defense counsel renewed an objection lodged earlier and moved for a mistrial because Post “violated the Court’s previous order restraining the testimony that can be given,” basically objecting because Post testified C.S. identified defendant as the person who committed the acts in question. The court overruled the objection, stating identification was not the issue.

In cross-examination, defense counsel questioned Post as follows on her report to the police:

“Q. [By defense counsel:] And in that report you never said anything about the licking of the rectum, did you?
A. [By Post:] I don’t recall.
Q. If he had done that I am sure it would be in that report, would it not?
A. I thought I did, but I may not have. I don’t know.”

Defendant’s motion for a new trial did not include this specific issue.

Raising the issue for the first time on appeal, defendant argues Post’s testimony that he licked C.S.’s rectum was evidence of a crime with which he was not charged. He maintains the testimony should not have been admitted as it was highly prejudicial and biased the jury against him. Generally, evidence of collateral crimes is inadmissible if relevant only to show a defendant’s propensity to commit a crime. People v. Lindgren (1980), 79 Ill. 2d 129, 137, 402 N.E.2d 238, 242.

The State argues defendant has waived this issue. We agree— first, by failure to raise this objection below and by specific objection on other grounds (People v. Killebrew (1973), 55 Ill. 2d 337, 341-42, 303 N.E.2d 377, 380); second, by cross-examining on this point (People v. Lewis (1979), 75 Ill. App. 3d 259, 287, 393 N.E.2d 1098, 1119 (and cases cited therein); People v. Bost (1980), 80 Ill. App. 3d 933, 951-52, 400 N.E.2d 734, 748; People v. Darby (1978), 58 Ill. App. 3d 294, 298, 374 N.E.2d 229, 232; People v. Haywood (1978), 60 Ill. App. 3d 236, 247, 376 N.E.2d 328, 336; People v. Calvin (1969), 116 Ill. App. 2d 471, 481, 253 N.E.2d 922, 927); and, third, by failure to include it in his motion for a new trial (People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124, 1130, cert. denied (1988), 488 U.S. 917, 102 L. Ed. 2d 263, 109 S. Ct. 274). Defendant urges application of the plain error exception to the waiver rule. However, this exception “will be applied only when substantial rights of the defendant are affected or the evidence in the case is closely balanced.” (People v. Bailey (1988), 177 Ill. App. 3d 679, 682, 532 N.E.2d 587, 590; 107 Ill. 2d R. 615(a).) This is not such a case.

On the merits, there was no error in admission of this testimony. Section 115 — 10, as amended, permits admission of such details of the child’s complaint, including identification, even if not on an element of the crime charged, and absent testimony by the child as to that particular detail. (People v. Rushing (1989), 192 Ill. App. 3d 444, 451, 548 N.E.2d 788, 792; People v. Morton (1989), 188 Ill. App. 3d 95, 102, 543 N.E.2d 1366, 1371.) Here, the court held a proper section 115 — 10 hearing outside the presence of the jury in order to determine that the time, content, and circumstances of the statement provided sufficient safeguards of reliability to permit admission of the evidence as an exception to the hearsay rule; the court made the requisite statutory determination; and the court gave the cautionary instruction required by the statute (Ill. Rev. Stat. 1987, ch. 38, par. 115 — 10(c)).

The defendant next argues the prosecutor repeatedly impeached him with unsupported allegations and insinuations and misstated a witness’ testimony to provide a basis for disbelieving the defendant’s denial of guilt.

C.S.’s mother testified at trial that several weeks after she received notice of the trial date she telephoned the defendant and told him she “thought C.S. had been through enough.” She testified the defendant responded, “Yeah, I know.”

On cross-examination, the defendant, upon being asked whether he remembered C.S.’s mother saying “you have put [C.S.] through enough” answered “I remember her saying that, yes” but denied any further response to the mother’s statement. Although no objection was made by defendant, the prosecutor repeated essentially the same question two additional times and defendant persisted in his denial of any response. The prosecutor also, on cross-examination, asked defendant three questions whether defendant told C.S.’s mother he needed help. Defendant each time denied he made such a statement. Priscilla, in the State’s case in chief, did not testify defendant told her he “needed help.” There is little excuse for the prosecutor’s failure to present the statement of defendant in its case in chief. Additionally, the prosecutor did not ask leave of court to call Priscilla in rebuttal concerning the statement.

During closing argument, the prosecutor made the following comments:

“Can you reasonably believe what [the defendant] said? Can you reasonably believe his denials? He told — he testified that he didn’t tell his ex-wife, Priscilla, anything. Priscilla asked the question, T think you have put [C.S.]-through enough,’ and her response that she recalled was he said, ‘Yes, I know.’
Mr. Schmitt testified he was silent. Silent. A person says, T think you have put [C.S.] through enough.’ Wouldn’t it be reasonable to expect an innocent man to say, ‘I have put him through enough? You have put him through all of this. You are the one who did this to him. You’re the one who put it up to him.’ No, if you accept Mr. Schmitt’s version, he is silent, he doesn’t make a reasonable denial. You accept his mother Priscilla’s version, ‘Yes, I know, I have put [C.S.] through enough. I abused him and that is enough.’ That is the reasonable interpretation.”

The defendant failed to object to both the cross-examination and the comments by the prosecutor during closing argument. Thus, the defendant has waived this issue.

The defendant is correct that when the prosecutor cross-examines a defense witness, she cannot presume facts not in evidence. “The danger inherent in such situations being that the jury will ignore any denial, presume the accuracy of the questions’ insinuation or innuendo, and substitute that presumption for proof.” (People v. Braggs (1988), 184 Ill. App. 3d 756, 760, 540 N.E.2d 767, 769.) In People v. Butler (1974), 58 Ill. 2d 45, 317 N.E.2d 35, the prosecutor deliberately engaged in improper questioning. He asked the defendant about his living arrangements with various women to whom he was not married. The purpose of the questioning was to establish the defendant’s bad moral character. “Such tactics have no place in the search for truth which is the objective of cross-examination and of the trial itself.” (Butler, 58 Ill. 2d at 52, 317 N.E.2d at 39.) The State’s cross-examination of defendant concerning statements made to a witness previously called in the State’s case in chief, which are not in evidence, is error and is not condoned.

In deciding whether to invoke the plain error exception, the inquiry is whether the prosecutor’s remarks “ ‘were so inflammatory that defendant could not have received a fair trial or so flagrant as to threaten deterioration of the judicial process. [Citation.]’ ” (People v. Jones (1988), 123 Ill. 2d 387, 410, 528 N.E.2d 648, 659, quoting People v. Albanese (1984), 104 Ill. 2d 504, 518, 473 N.E.2d 1246, 1251.) The cross-examination of the defendant in this case was not so inflammatory as to “ ‘threaten deterioration of the judicial process. [Citation.]’ ” Jones, 123 Ill. 2d at 410, 528 N.E.2d at 659, quoting Al banese, 104 Ill. 2d at 518, 473 N.E.2d at 1251.

As to the closing argument comments, the United States Supreme Court has held that a prosecutor’s comments during closing, though they may be “undesirable,” do not deprive a defendant of a fair trial if they do not “manipulate or misstate the evidence” or implicate other specific rights such as the right to remain silent or the right to counsel. (Darden v. Wainwright (1986), 477 U.S. 168, 181-82, 91 L. Ed. 2d 144, 157-58, 106 S. Ct. 2464, 2471-72.) Additionally, the Illinois Supreme Court held that a prosecutor’s statement, based on a legitimate inference from the proof, does not constitute improper argument. (Albanese, 104 Ill. 2d at 520, 473 N.E.2d at 1252.) Here, the prosecutor’s closing argument was based upon the evidence and reasonable inferences to be drawn therefrom and was not improper.

The defendant also argues his conviction should be overturned because the cumulative effect of the errors alleged to have occurred during trial deprived him of a fair trial. We disagree. There were no errors depriving him of a fair trial, individually or cumulatively. Even if there were errors, they were harmless and do not warrant vacating the conviction.

Finally, the defendant contends, and the State agrees, this case should be remanded for correction of the sentencing order. The defendant was charged with both aggravated criminal sexual assault and criminal sexual assault. Both charges involved a single act, the defendant placing his mouth on C.S.’s penis. The jury returned guilty verdicts on both counts. The court sentenced the defendant to nine years’ imprisonment for aggravated criminal sexual assault but did not impose a sentence for the criminal sexual assault conviction. One sentencing order and the notice of appeal state defendant was convicted of two counts of aggravated criminal sexual assault. A later sentencing order shows defendant was convicted of both aggravated criminal sexual assault and criminal sexual assault. We agree with the parties that the cause should be remanded to clarify the record to reflect a judgment entered on the verdict of guilty to one count of aggravated criminal sexual assault.

Affirmed as modified, and cause remanded.

SPITZ and STEIGMANN, JJ, concur.


author: JUSTICE GREEN JUSTICE LUND,

text:
    CURTIS W. MYERS, d/b/a Law Offices of Curtis W. Myers, Plaintiff-Appellant, v. DARIN BRANTLEY, Defendant-Appellee.
    Fourth District
    No. 4 — 90—0332
    Opinion filed October 25, 1990.
    LUND, J., specially concurring.
    Curtis W. Myers, of Law Offices of Curtis W. Myers, of Pontiac, appellant pro se.

    No brief filed for appellee.
   JUSTICE GREEN

delivered the opinion of the court:

On April 4, 1990, plaintiff Curtis W. Myers, d/b/a Law Office of Curtis W. Myers (Myers), filed a small claim in the circuit court of Livingston County against his former client Darin Brantley. Myers sought to collect legal fees and court costs incurred while Myers represented defendant in a dissolution proceeding. On May 8, 1990, the court dismissed the action on the grounds that section 508(a) of the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1989, ch. 40, par. 508(a)) precludes an attorney from filing an independent action against his former client for fees while the dissolution action is pending. Defendant presented records to the circuit court indicating such an action was then pending in that court.

We note initially that the appellee has not filed a brief in this case. The supreme court has indicated in such a case that a court of review may, but is not required to, serve as an advocate and need not search the record to sustain the judgment of the trial court; but, “[i]t may, however, if justice requires, do so.” (First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 133, 345 N.E.2d 493, 495.) The court further indicated when the record is simple and the claimed errors are such that the court can easily decide them, it should do so. However, when the appellant’s brief demonstrates prima facie reversible error and the contentions of the brief find support in the record, the judgment of the trial court may be reversed. Talandis, 63 Ill. 2d at 133, 345 N.E.2d at 495.

Here, we have a case which is neither easily decided nor one which demonstrates prima facie reversible error. We elect to decide the case on its merits. We affirm.

Section 508(a) of the Act states in part:

“The court from time to time, after due notice and hearing, and after considering the financial resources of the parties, may order either spouse to pay a reasonable amount for his own costs and attorney’s fees ***.” (Ill. Rev. Stat. 1989, ch. 40, par. 508(a).)

Under former law and prior to Seniuta v. Seniuta (1977), 49 Ill. App. 3d 329, 364 N.E.2d 327, an attorney could not seek fees from his or her own client in a divorce proceeding. Seniuta changed that rule and section 508(a) of the Act codified that change.

Plaintiff’s claim was dismissed on defendant’s oral motion in which defendant cited the case of In re Marriage of Baltzer (1986), 150 Ill. App. 3d 890, 502 N.E.2d 459, and that court relied on that decision in the order on appeal. That case differed materially from this case only to the extent that, there, the attorney seeking fees against his former client in a separate proceeding also had two petitions for fees pending in the ongoing matrimonial proceedings. The appellate court held that a separate proceeding to recover fees could not be brought. The decision was on a more narrow point than that present here, but in rendering its decision, the Second District Appellate Court stated:

“We conclude that an application for attorney fees and costs must be made in a pending dissolution proceeding and may not, during that period, be brought as a new action in another court.” Baltzer, 150 Ill. App. 3d at 896, 502 N.E.2d at 464.

If Baltzer were the closest case in point, the cited language would be mere dicta. However, subsequent to Baltzer, the Second District Appellate Court decided Gitlin v. Hartmann (1988), 175 Ill. App. 3d 805, 530 N.E.2d 584. There, a lawyer sought, in a separate proceeding, to obtain attorney fees from a client which were earned in a proceeding under the Illinois Parentage Act of 1984 (Parentage Act) (Ill. Rev. Stat. 1985, ch. 40, par. 2501 et seq.) wherein the attorney had withdrawn. The Parentage Act proceedings were still in progress when the separate suit for fees was filed, but no request for those fees had been made in that proceeding. Thus, except for the difference between the Parentage Act and the Act, the circumstances in Gitlin and here are not materially different.

Section 17 of the Parentage Act provides “the court may order reasonable fees of counsel *** to be paid by the parties in accordance with the relevant factors specified in Section 508 of [the Act].” (Ill. Rev. Stat. 1989, ch. 40, par. 2517.) The Gitlin court held that although section 17 of the Parentage Act was not in exactly the same language as section 508 of the Act, it was analogous and subject to the same restrictions. This determination was consistent with the subsequent holding of this court that standards for the award of fees under the two provisions were the same. (Davis v. Sprague (1989), 186 Ill. App. 3d 249, 541 N.E.2d 831.) The Gitlin court then concluded, because of the similarity between section 17 and section 508, the Baltzer rule should be applied preventing the separate action for attorney fees while a dissolution or Parentage Act proceeding was still ongoing.

The Gitlin court did not note the difference between the Baltzer situation, where petitions for attorney fees were pending in the underlying action, and the situation in Gitlin and here where no such petitions were pending. However, the combined effect of the two decisions is to create a precedent that in the types of statutory proceedings involved, while those proceedings are ongoing, no separate action for fees by a counsel who has withdrawn can properly be brought. We agree with and apply that precedent here.

The interpretation given to the wording of section 508(a) of the Act by the Second District Appellate Court is a reasonable interpretation and one which is most practical. As pointed out in both Baltzer and Gitlin, the judge hearing the underlying proceedings has available the record of the proceedings, the memory of what occurred and the general knowledge to be in the best position to pass judgment as to a reasonable fee. (Gitlin, 175 Ill. App. 3d at 810, 530 N.E.2d at 587; Baltzer, 150 Ill. App. 3d at 896, 502 N.E.2d at 463-64.) The Gitlin court pointed out that under Rhoades v. Norfolk & Western Ry. Co. (1979), 78 Ill. 2d 217, 399 N.E.2d 969, a discharged attorney can recover only on a quantum meruit theory and cannot enforce a written contract for fees. Thus, the question of the reasonableness of fees to be awarded is most likely to be the main issue before the court in the type of fee request involved here.

In conclusion, we note that nothing in Gitlin, Baltzer, or our decision here precludes an attorney, whether discharged or not, from bringing a separate suit against his or her own client for fees earned in a dissolution or Parentage Act proceeding after the circuit court has lost jurisdiction of those statutory proceedings. In addition, no attorney is barred from bringing such a separate action at that time because that issue was not raised in the underlying proceedings. See In re Marriage of Burton (1990), 203 Ill. App. 3d 890.

We also note that both the Gitlin and Baltzer decisions speak in terms of the circuit court not having jurisdiction of the separate fee proceedings. Neither there nor here is a collateral attack being made on a judgment obtained in such a proceeding. If the term “jurisdiction” is used in the sense that the judgment of a court in such a separate proceedings would be void and subject to collateral attack, we are not necessarily agreeing with that language. That question need not be decided here, and we are not making a decision in that regard.

As we have indicated, we affirm.

Affirmed.

McCullough, j., concurs.

JUSTICE LUND,

specially concurring:

While I concur in the majority opinion, I find it necessary to state certain concerns. Occasionally, counsel in domestic relations cases terminate services, or their services are terminated, before court actions are commenced or during court proceedings. Most often they are entitled to fair compensation for their legal services. Reality results in certain out-of-pocket expenses being advanced by attorneys. The existence of section 508(a) of the Act (Ill. Rev. Stat. 1989, ch. 40, par. 508(a)) does not justify long delays in the payment of fees in such circumstances.

While counsel in the major metropolitan areas face longer delays in completing marital litigation, delays occur in all courts. Discovery and plain harassment may result in substantial delay. Assume counsel has provided substantial services for a client and is then terminated prior to the filing of the action — why, because of the filing, should the terminated counsel be required to wait months or years for his fees? The proper way to avoid this injustice is a prompt hearing and a prompt order in the pending proceeding.

The benefit to the parties of a prompt order is plain. The resolution of property, child support, and maintenance issues requires a determination of all assets, income, expenses, and debts. The attorney fee obligation is certainly relevant. A prompt determination of the former attorney’s fee assists in determining the financial picture, thereby aiding in the settlement process.

This prompt determination also justifies the determination advanced by the majority opinion: the court handling the dissolution can police the determination of an otherwise questionable liability — the uncertain attorney fee debt. But once again, I repeat — a terminated attorney should not be required to wait on his earned fees until the conclusion of a dissolution proceeding.