author: JUSTICE GORDON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. LEE V. GRAHAM, Defendant-Appellee.
    First District (5th Division)
    No. 1—88—3411
    Opinion filed May 24, 1991.

      John O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Joseph Brent, and Michael Leuer, Assistant State’s Attorneys, of counsel), for the People.
    Barry A. Spector, of Chicago (Mark Solock, of counsel), for appellee.
   JUSTICE GORDON

delivered the opinion of the court:

Defendant, Lee Graham, was charged by indictment with two counts of first degree murder (Ill. Rev. Stat. 1985, ch. 38, pars. 9—1(a)(1), (a)(2)) and one count of concealment of a homicidal death (Ill. Rev. Stat. 1985, ch. 38, par. 9—3.1(a)(1)). Prior to trial on these charges, defendant filed a motion to quash arrest and suppress evidence. A hearing was held on defendant’s motion, and the motion was sustained and all statements made by defendant were suppressed. The State’s subsequent motion for reconsideration was denied. The State appeals from both rulings, pursuant to Supreme Court Rule 604(a)(1) (107 Ill. 2d R. 604(a)(1)). On appeal, the State contends that (1) defendant was not illegally seized by police officers, but rather voluntarily accompanied them to the police station, and (2) even if defendant was illegally seized, his later statements were sufficiently attenuated from the illegality so as to be admissible. For the reasons set forth in this opinion, we affirm the trial court’s rulings.

Facts

A murder occurred in Evanston, Illinois, in August of 1987. After several months of investigation, the Evanston police developed information which led them to believe that the defendant was involved. Three officers travelled from Evanston to Tuscaloosa, Alabama, in January of 1988 to question the defendant. The defendant made certain inculpatory statements to the police upon questioning at the Tuscaloosa police station. He was held overnight in the Tuscaloosa County jail, and the next morning was taken before a Tuscaloosa district court judge for an extradition hearing. After waiving extradition, defendant was driven to the airport for a flight back to Chicago, and during the drive, he made an additional statement to the police. Upon returning to Evanston, the defendant made a third statement regarding the murder.

Defendant’s motion to quash his arrest and to suppress the products of that arrest alleged that he was arrested on January 28, 1988, at or near the Knox Hall dormitory on the campus of Stillman College in Tuscaloosa, Alabama, by Evanston, Illinois, police officers. Defendant further alleged that the arrest was a seizure as contemplated by the fourth amendment to the United States Constitution (U.S. Const., amend. IV), and was made without a warrant and without probable cause. Subsequent to defendant’s “arrest” he was questioned by police and as a result police became aware of witnesses and evidence which defendant sought to suppress along with defendant’s statements to police.

A hearing was held on defendant’s motion on October 16, 1988. The defendant testified that on January 28, 1988, he was in Tuscaloosa, Alabama, on the campus of Stillman College. At approximately 10:30 a.m. he was leaving his second-floor dormitory room when he encountered Mr. Blackman, head of dormitory security. Mr. Blackman asked defendant if he was Kirby Brown, defendant’s nickname. When defendant responded that he was, Mr. Blackman said “come with me,” and defendant went with him.

Outside they encountered Dean Hubbard, Stillman’s dean of students, who also asked defendant if he was Kirby Brown. When defendant said he was, Dean Hubbard said “come with me,” and defendant followed him. After taking about five steps, a car with four men in it, later identified as three Evanston police officers and one Tuscaloosa officer, pulled up and all got out of the car and stood around the defendant. One of the men asked defendant if he was Kirby Brown, to which defendant responded he was, and the man then identified himself as Sgt. Wernick of the Evanston police department, showing defendant his badge and a picture of the defendant. Defendant testified that he did not remember any of the other officers identifying themselves to him. Sgt. Wernick said “come with us,” to which the defendant did not say anything, but went with them because he “felt like [he] didn’t have no choice.” The four police officers then drove defendant to a Tuscaloosa police facility, a ride of 10 minutes or less, with defendant sitting in the back seat of the car between two officers. The officers asked no questions of the defendant during the ride.

Defendant further testified that when he got into the car an officer grabbed him by the arm. Upon arrival at the station, he was told to get out of the car, and again an officer grabbed him by his arm. At the police station, defendant was patted down and his belongings were taken. He was then taken to another room and read his Miranda rights. Defendant testified that he was never shown an arrest or a search warrant, and that he did not voluntarily go with the officers to the police station.

On cross-examination defendant could not describe the officer who had grabbed his arm getting into and out of the police car, but said he knew it was one of the Evanston officers but not Sgt. Wernick. Defendant also denied that the Evanston police officers said they would like him to come to the police station, repeating his earlier statement that they said “come with us.” He was not at that time told he was under arrest, but said that when they read him his rights, he “figured [he] was under arrest then.”

The first of the State’s witnesses was Officer Thomas Cubanski of the Evanston police department. He testified that in January of 1988 he was investigating a homicide which had occurred in Evanston five months earlier and that he went with two other Evanston police officers to Tuscaloosa, Alabama, seeking to interview the defendant. Upon arrival in Tuscaloosa, they met with the Tuscaloosa deputy police chief, who assigned a local officer, Investigator Adams, to work with them.

Cubanski and his fellow officers spoke with a girlfriend of the defendant who told them that he was staying in a dormitory on the campus of Stillman College with a friend. When they spoke with Dean Hubbard, he told them that if the defendant was in fact on campus, he was not wanted there since he was not a student at that time. Hubbard said that he would go to look for defendant at the address given to him by the Evanston officers. The three Evanston officers and Investigator Adams drove to the campus in Adams’ unmarked police car while the dean walked.

The next time Cubanski saw Hubbard, he was walking out of the dormitory with defendant. According to Cubanski, Sgt. Wernick asked defendant to accompany him to be interviewed and defendant said yes, he would be willing to do that. Defendant was never handcuffed, nor did the witness see anyone grab defendant’s arm. Cubanski further stated that he heard Dean Hubbard tell the defendant that if he remained on campus, he would be arrested.

On cross-examination, Cubanski testified that they had not attempted to get an arrest warrant before going to Alabama and that he did not believe there was probable cause to arrest the defendant. Cubanski also stated that the defendant was not free to leave as they were driving to the police station, nor was he free to walk out of the police station. Cubanski testified that he did not have the power in his official capacity as an Evanston police officer to detain the defendant had he chosen to leave, but that he would have nonetheless stopped the defendant from leaving or asked Investigator Adams to do so had defendant tried to leave. At the station, the defendant was patted down and made to empty his pockets. He was then taken to a room and read his Miranda rights. At that time, Cubanski said that they had no more information than they had when they left Evanston, and had no probable cause to arrest the defendant.

The second witness for the State was Officer Sam Pettineo of the Evanston police department. Pettineo testified that when they first saw the defendant on campus, Sgt. Wernick and Pettineo walked up to the defendant and identified themselves as Evanston' police officers and told the defendant they needed to talk to him. Although the witness could not remember specifically the defendant’s words, the defendant did say that he would talk with them. Pettineo said that when he and the other officers met the defendant outside Knox Hall, there was no place in the immediate vicinity to have a conversation. He did not, however, remember anyone telling the defendant that they had to go elsewhere to talk, nor did he hear the defendant say he did not wish to go with the officers.

On cross-examination, Pettineo stated that he did not believe they had probable cause to arrest the defendant when they went to Tuscaloosa. He also said that the defendant walked up to the four officers as they were standing outside their car rather than the police walking up to the defendant.

The State’s third and final witness was Sgt. Charles Wernick of the Evanston police department. He testified that he was in charge of the trip to Alabama. His testimony was essentially the same as that of Officer Cubanski regarding their trip from Evanston to Tuscaloosa, Alabama, and ultimately to the campus of Stillman College.

Sgt. Wernick testified that when the dean exited the dormitory with defendant, he approached them and identified himself to the defendant as a sergeant with the Evanston police department. When the sergeant told defendant he would like to talk with him, the defendant put his head down, looking towards the ground, and got into the car, an unmarked Alabama police car. According to Wernick, no one touched the defendant and defendant was not handcuffed. Moreover, Wernick stated that neither he nor his officers would have stopped the defendant had he walked away. Wernick and his fellow Evanston officers had discussed the matter and had agreed that they had no authority to detain the defendant if he had not wanted to talk with them. He also said that if one of the other Evanston officers had tried to stop the defendant from leaving, he would have prevented it. Sgt. Wernick agreed that he never told defendant that he was free to leave, but stated that the defendant never asked if he could leave and never made any attempt to leave. At the police station, defendant was taken to a room and read his Miranda warnings. Wernick acknowledged, as did the other two witnesses for the State, that although the police considered defendant a suspect, they did not have probable cause to arrest him.

After hearing arguments on the motion to quash defendant’s arrest and suppress evidence, the trial judge ruled that defendant was arrested on campus without probable cause and that his presence at the police station was not consensual. He therefore sustained the motion to quash the arrest, and suppressed the evidence flowing from the illegal arrest.

The State subsequently filed a “Motion to Reconsider Certain Evidence Quashed by Defendant’s Motion to Quash Arrest and Suppress Evidence.” The State contended that the initial ruling was unclear as to exactly what evidence was suppressed, whether it was only the defendant’s initial statement at the station or whether the court had also suppressed the later statements. If the later statements had been suppressed, the State_requested a hearing on attenuation to reconsider the suppression of the later statements.

In its motion to reconsider, the State contended that the court’s ruling on defendant’s motion appeared to suppress all evidence resulting immediately from the time of the arrest on January 28, 1988, up to the present time. The motion alleged the following additional facts which had not been presented at the hearing on the defendant’s motion, facts which the State contended were sufficient to allow the later statements to be admissible: (1) Defendant was held overnight in Tuscaloosa pending extradition, and no conversations were had with defendant in the interim; (2) on the morning of January 29, defendant voluntarily waived extradition at a hearing in the district court in Tuscaloosa; (3) while driving to the airport after the extradition hearing, defendant made a spontaneous additional statement concerning his confession; and (4) after arriving back in Evanston, on the evening of the 29th, defendant made additional statements to a felony review assistant after being advised of his Miranda rights. The State contended that the statements on January 29 were sufficiently attenuated from the illegal arrest and should not be suppressed.

While the State argued that a hearing should be held on the issue of attenuation, the trial court found that even if the State’s additional factual allegations were true, there was insufficient attenuation. The trial court thereupon denied the motion for reconsideration and affirmed that its order of suppression extended to the January 29 statements as well as the confession made on the 28th.

Opinion

On appeal, a trial court’s ruling on a motion to quash an arrest and to suppress evidence will not be overturned unless it is manifestly erroneous. (People v. Winters (1983), 97 Ill. 2d 151, 158, 454 N.E.2d 299, 303.) Moreover where the evidence is merely contradictory, we will not substitute our assessment of credibility of the witnesses for that of the trial judge. (People v. Clay (1984), 124 Ill. App. 3d 140, 149, 463 N.E.2d 929, 936.) Although the trial court did not expressly state which testimony it found to be credible, we must presume that it credited only the testimony which supports its ruling. (Winters, 97 Ill. 2d at 158, 454 N.E.2d at 303.) In this case, since the State is seeking reversal of the trial court’s ruling in favor of the defendant, we must, unless clearly unreasonable, consider as true the testimony favoring the defendant’s position. People v. Holloman (1970), 46 Ill. 2d 311, 317, 263 N.E.2d 7, 11.

Before addressing the substantive issues, we first address a preliminary issue regarding the choice of law. The defendant at both the hearing on his motion and in his brief before this court raised the question of whether Alabama law or Illinois law should govern the issue of whether this was a valid arrest. The defendant contends that whether an arrest has occurred depends upon the State law of the place where the events transpired. In the trial court’s ruling, it reasoned that State law might be applicable if we were dealing with the formalities of a valid arrest under State statutory law, but not in a case such as this, which is predicated solely upon the protections afforded to individuals under the fourth amendment of the United States Constitution. (U.S. Const., amend. IV.) We agree with the trial court. As the United States Supreme Court stated in Dunaway v. New York (1979), 442 U.S. 200, 212, 60 L. Ed. 2d 824, 836, 99 S. Ct. 2248, 2256, “[t]he application of the Fourth Amendment’s requirement of probable cause does not depend on whether an intrusion of this magnitude is termed an ‘arrest’ under state law.” Our supreme court has stated:

“[WJhether or not any given search and seizure is unconstitutional, as violative of the fourth and fifth amendments, as a matter of substantive law, is to be decided by the pronouncements of the United States Supreme Court. If a search and seizure is valid according to the opinions of the United States Supreme Court, the decision of a State court cannot make it invalid as a matter of Federal constitutional law.” (People v. DeMorrow (1974), 59 Ill. 2d 352, 354, 320 N.E.2d 1, 3.)

A fortiori, if a search and seizure is deemed invalid on fourth amendment grounds by the United States Supreme Court, the question as to the validity of the arrest under State law would be of no consequence. Thus the question as to choice of State law is neither dispositive nor truly pertinent, and our focus must be upon the fourth amendment issues under the Federal constitution.

To quash an arrest as violative of the fourth amendment and to suppress evidence based upon the illegality of that arrest, the burden is on the defendant to show that an illegal seizure has occurred. (Ill. Rev. Stat. 1989, ch. 38, par. 114—12(b); People v. Neal (1985), 109 Ill. 2d 216, 218, 486 N.E.2d 898, 899.) To satisfy his burden he must prove two things: first, that a seizure occurred, and second, that the seizure was illegal. (United States v. Black (7th Cir. 1982), 675 F.2d 129, 132.) Here, the sole issue before us is whether defendant was in fact seized, as the State concedes that the police lacked both probable cause as well as an arrest warrant to support a legal arrest. The State has instead argued that defendant was not in fact seized, but rather consented to accompany the officers to the police station for questioning.

The fourth amendment to the United States Constitution protects individuals from unreasonable searches and seizures. A seizure within the meaning of the fourth amendment occurs when “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.) As this court noted in People v. Holveck (1988), 171 Ill. App. 3d 38, 524 N.E.2d 1073:

“The test is not a subjective one, and therefore it is irrelevant whether the defendant believed he was under arrest [citation] or whether the police intended to detain the defendant against his will unless that intent was conveyed to the defendant. [Citation.] It is also well established that where there are significant indicia of coercion, a court will not find controlling the fact that a defendant was merely asked if he would accompany police [citations] or that he was not told he was under arrest or made to undergo booking procedures.” (171 Ill. App. 3d at 47, 524 N.E.2d at 1080.)

In determining what a reasonable person would believe under the circumstances, courts may look to several factors as indicia of coercion. These include the time and place of the confrontation, the number of officers, the presence or absence of family or friends, the presence of conduct normally involved in a formal arrest procedure, such as physical restraint, the show of weapons or force, booking or fingerprinting, and the manner by which the individual is transported to the police station. (People v. Gordon (1990), 198 Ill. App. 3d 791, 796, 556 N.E.2d 573, 576.) The test focuses on the coercive effect of police conduct as a whole, and not on each particular detail of the police conduct in isolation. People v. Stofer (1989), 180 Ill. App. 3d 158, 166, 435 N.E.2d 1287, 1292.

In the instant case, the initial encounter between the defendant and the police took place on a sidewalk outside a college dormitory at 10:30 in the morning. According to the defendant, the four officers were standing around him. At least one of the officers, Sgt. Wernick, identified himself to the defendant as a police officer and showed the defendant a picture of himself. Officer Pettineo testified that he also identified himself as a police officer to the defendant. Although the police were in an unmarked car and there was no testimony at the hearing as to whether the Evanston officers or Investigator Adams from Tuscaloosa was in uniform or in plain clothes, it would not be unreasonable for defendant to conclude that all four were police after being shown a badge by at least one of them.

There is no evidence that any of the defendant’s family or friends were present. Two officials from Stillman College were nearby, but their commands to the defendant to “come with me” would seem to add to rather than lessen the coercive environment created by four police officers approaching one individual.

Defendant also testified that one of the officers grabbed his arm and led him into the car. While in the back of the police car, defendant, although not handcuffed, was seated between two police officers and was thus effectively restrained by their mere presence on either side of him. Although there was no testimony that the police showed weapons, we note that the Evanston police department sent not one but three officers to Alabama to question the defendant. By their sheer number a sense of force may be implied. See People v. Berrios (1988), 178 Ill. App. 3d 241, 250, 533 N.E.2d 64, 69 (three plainclothes detectives considered “significant show of force”).

Also significant is the fact that defendant was driven by the police directly to the police station. (Dunaway v. New York (1979), 442 U.S. 200, 212, 60 L. Ed. 2d 824, 836, 99 S. Ct. 2248, 2256 (petitioner taken into custody, transported to police station in police car).) He was not asked if he would go with the police, was not told where they were going, nor was he given the option of getting to the station by himself or meeting the police there at a later time. There was testimony that Sgt. Wernick simply said “come with me” and defendant was taken to the police station for questioning. (See People v. Young (1990), 206 Ill. App. 3d 789, 801, 564 N.E.2d 1254, 1263 (which held that defendant’s consent to accompany officers to police station is not dispositive in light of the fact that the idea to go to the station first originated with the police).) In Dunaway the Court, in finding that the defendant had been seized, relied in part on the fact that the defendant had been taken from a neighbor’s home to a police car and transported to a police station. Moreover, as in this case, the defendant was not questioned briefly where he was found, nor was he ever told that he was free to go.

Upon arrival at the station, defendant was told to get out of the car. Again, there was testimony that one of the officers grabbed the defendant by the arm as he was getting out of the car. Inside the station, prior to questioning, defendant was frisked and made to empty his pockets and the police then went through his belongings. Although the State seeks to justify this search on the basis of security at the police station, a person being subjected to these procedures could reasonably believe he was not free to leave at this point. (See United States v. Willis (11th Cir. 1985), 759 F.2d 1486.) He was then taken to a small room and read his Miranda rights before questioning. Our supreme court has held that being read one’s Miranda rights at the police station may be a factor contributing to a reasonable person’s belief that he was in custody, even though, as shall be discussed later, it also warrants consideration as an attenuation factor. People v. Townes (1982), 91 Ill. 2d 32, 37, 435 N.E.2d 103, 105.

The State argues that the absence of a formal declaration of arrest and other routine procedures associated with a formal arrest permits, as a matter of law, the conclusion that no seizure has occurred, citing United States v. Mendenhall (1980), 446 U.S. 544, 64 L. Ed. 2d 497, 100 S. Ct. 1870, and People v. Thomas (1985), 139 Ill. App. 3d 163, 486 N.E.2d 1362, as authority for the proposition. However, as previously noted, in both Mendenhall and Thomas the courts looked to the totality of the circumstances surrounding the encounters between the citizens and the police to determine if a seizure had occurred. The absence of formalities of arrest, such as a declaration, fingerprinting or photographing, was but one of several factors considered by the courts, and while their presence may be evidence that a seizure occurred, it cannot be said that their absence compels an opposite conclusion. (See Dunaway v. New York (1979), 442 U.S. 200, 60 L. Ed. 2d 824, 99 S. Ct. 2248; People v. Sturdivant (1981), 99 Ill. App. 3d 370, 425 N.E.2d 1046.) Moreover, we note that the defendant here was subjected to a pat-down and made to empty his pockets, as well as being read his Miranda rights, which by themselves may be considered procedures associated with an arrest.

The State also emphasizes that not one of the Evanston police officers had the authority to stop the defendant from leaving or to affect an arrest at any time before the inculpatory statements were made. However, from the time the Evanston police first encountered the defendant until the defendant made his inculpatory statements, an Alabama police officer was always present. Investigator Adams drove the Evanston officers to the Stillman College campus and then to the Tuscaloosa police station. At the station there were several Alabama police present. They clearly had the authority to arrest the defendant. The test to determine whether a seizure has occurred is what a reasonable person would believe, and we fail to see how the lack of Evanston police authority to arrest a person would have any effect on that belief without being conveyed to that person, particularly in light of the fact that there were police present who did have such authority. (See People v. Dowdell (1980), 81 Ill. App. 3d 266, 270, 401 N.E.2d 295, 297-98.) As we stated in People v. Holvek (1988), 171 Ill. App. 3d 38, 524 N.E.2d 1073, quoted above, the avowed noncoercive intentions of the police are irrelevant unless communicated to the defendant.

We also observe that the seizure of the defendant here had the “quality of purposefulness” about it which was denounced by the Supreme Court in Brown v. Illinois (1975), 422 U.S. 590, 45 L. Ed. 2d 416, 95 S. Ct. 2254. (See also Dunaway v. New York (1979), 442 U.S. 200, 60 L. Ed. 2d 824, 99 S. Ct. 2248; People v. Townes (1982), 91 Ill. 2d 32, 435 N.E.2d 103.) Here, the police admittedly lacked probable cause to arrest the defendant prior to his statements made at the police station after interrogation. The officers acknowledged that the purpose of their trip was for questioning. Brown, Dunaway, and Townes make it clear that the fourth amendment prohibits such an “expedition for evidence.” (Brown, 422 U.S. at 605, 45 L. Ed. 2d at 428, 95 S. Ct. at 2262.) In that regard we should note that although the uncommunicated intentions of the police are irrelevant to the issue of the defendant’s reasonable belief, they may well be relevant in determining the “quality of purposefulness” of the police action. While Sgt. Wernick testified that he would not have detained the defendant and would have stopped his men from doing so had the defendant tried to leave, the trial court was free to believe the testimony of Officer Cubanski that he would have detained the defendant had he tried to leave.

The State contends that this case is analogous to People v. Clay (1984), 124 Ill. App. 3d 140, 463 N.E.2d 929, in which this court upheld the trial court’s denial of the defendant’s motion to quash his arrest. There the defendant testified at a hearing on his motion to suppress statements that he agreed to accompany the police to the station for questioning. However, at a hearing on the motion to quash his arrest, the defendant testified that he objected to the officers’ demands to accompany them. Further, several police officers testified that they did not intend to arrest the defendant and that the defendant did not object to their request to accompany them. They also told the defendant that he was not under arrest. There, as here, there was conflicting testimony as to what transpired. As we stated earlier in regard to our standard of review, the credibility of witnesses and the weight to be given their testimony are uniquely the province of the trial court. In affirming the trial court’s ruling in Clay, we did not find that the evidence compelled a finding that the defendant had voluntarily accompanied the police for questioning. Rather, we deferred to the trial court’s assessment of the credibility of the witnesses and found that there was sufficient evidence to support the trial court’s finding, which was therefore not manifestly erroneous. Clay, 124 Ill. App. 3d at 148-49, 463 N.E.2d at 936.

In this case we must also defer to the trial court’s assessment of the credibility of the witnesses in its finding that the defendant did not voluntarily accompany the police to the station for questioning, a finding amply supported by the evidence. It is undisputed that four police officers confronted the defendant on the campus of Stillman College and drove him to the station for questioning. The testimony of the defendant as well as that of Officer Cubanski supports the finding that the defendant was not free to leave at that time.

Although the trial court relied in its ruling only on the events prior to arriving at the police station, we find the events which occurred at the station equally relevant to the issue of the defendant’s reasonable belief. (See People v. Clay (1984), 124 Ill. App. 3d 140, 148, 463 N.E.2d 929, 936 (reviewing court may consider evidence adduced at trial which supports trial court’s finding on motion to suppress).) At the station, not only was he patted down, but his belongings were searched and he was read his Miranda rights prior to questioning. Even had the defendant gone to the station voluntarily in the first instance, the treatment he received at the station would not be consistent with the mere elicitation of voluntary cooperation. (People v. Young (1990), 206 Ill. App. 3d 789, 801, 564 N.E.2d 1254, 1263.) Clearly, before making statements to the police which established probable cause for his arrest, the defendant, having been frisked, searched and read his rights, could reasonably believe that he was not free to leave. Based on the totality of the circumstances as set out in the record before us, we cannot say that the trial court’s finding that the defendant was seized without probable cause is against the manifest weight of the evidence. Therefore we affirm the trial court’s ruling quashing defendant’s arrest.

We now proceed to address the State’s second ground for appeal, the suppression of evidence flowing from the illegal arrest. A determination that a defendant was seized in violation of his fourth amendment rights does not per se result in the suppression of all statements made after the illegal arrest. Rather the issue becomes “whether [the] statements were obtained by exploitation of the illegality of [the] arrest.” (Brown v. Illinois (1975), 422 U.S. 590, 600, 45 L. Ed. 2d 416, 425, 95 S. Ct. 2254, 2260.) Confessions following an illegal arrest are presumed to be the product of the illegality. (People v. Riszowski (1974), 22 Ill. App. 3d 741, 746-47, 318 N.E.2d 10, 14-15.) Once the defendant has established the illegality of his arrest, the State bears the burden of establishing by clear and convincing evidence that subsequent statements were sufficiently attenuated from the illegality so as to be purged of its taint. People v. Nash (1979), 78 Ill. App. 3d 172, 177, 397 N.E.2d 480, 484.

Defendant here made three statements following his illegal arrest. The first was two hours after the arrest, the second approximately 24 hours later, and the third eight hours after the second. The State, in its motion before the trial court, argued that the second and third were sufficiently attenuated so as to be admissible. Before this court the State appears to be arguing that all three statements should be admissible. The trial court found that the second and third statements were not sufficiently attenuated from the illegal arrest so as to be admissible. Implicit in that finding is a finding that the first statement was also not attenuated from the illegality. As discussed below, we find that the trial court’s ruling, explicitly as to the second and third statements and implicitly as to the first, was not against the manifest weight of the evidence and we therefore affirm.

In Brown v. Illinois (1975), 422 U.S. 590, 45 L. Ed. 2d 416, 95 S. Ct. 2254, the Supreme Court addressed the issue of the admissibility of statements made following an illegal arrest. The Court listed the factors to be considered in determining whether a later statement was sufficiently attenuated from the illegality so as to be deemed a product of the defendant’s free will, and therefore admissible, rather than a result of the illegality and inadmissible. These factors include the presence or absence of Miranda warnings, the temporal proximity of the arrest and the statement, the presence of intervening circumstances, and the purpose and flagrancy of the official misconduct. Brown, 422 U.S. at 603-04, 45 L. Ed. 2d at 427, 95 S. Ct. at 2261-62.

Here the defendant received Miranda warnings twice. The first were given shortly after his arrival at the Tuscaloosa police station, before he was interrogated and gave his first statement. He was again read his rights prior to his third statement. However, the giving of Miranda warnings to an individual in custody prior to interrogation is merely a threshold requirement to the admissibility of statements following an illegal arrest. (People v. Stofer (1989), 180 Ill. App. 3d 158, 169, 534 N.E.2d 1287, 1293.) They cannot alone and per se purge the taint of an illegal arrest. (Brown, 422 U.S. at 603, 45 L. Ed. 2d at 427, 95 S. Ct. at 2261.) We must, therefore, consider the other attenuating factors set forth in Brown.

Regarding the temporal proximity of his arrest and his statements, the three statements were made approximately 2, 24, and 36 hours after his arrest. The mere passage of time alone, however, is insufficient by itself to purge the taint of an illegal arrest. (People v. Lekas (1987), 155 Ill. App. 3d 391, 414, 508 N.E.2d 221, 237.) As Mr. Justice Stevens observed in his concurring opinion in Dunaway v. New York (1979), “[t]he temporal relationship between the arrest and the confession may be an ambiguous factor. If there are no relevant intervening circumstances, a prolonged detention may well be a more serious exploitation of an illegal arrest than a short one. Conversely, even an immediate confession may have been motivated by a prearrest event such as a visit with a minister.” (Dunaway v. New York (1979), 442 U.S. 200, 220, 60 L. Ed. 2d 824, 841, 99 S. Ct. 2248, 2260-61 (Stevens, J., concurring).) The key, therefore, in determining whether the passage of time has purged the taint of an illegal arrest is to examine what if any intervening events occurred during that time, and the nature of those events. People v. Stofer (1989), 180 Ill. App. 3d 158, 169, 534 N.E.2d 1287, 1294.

During the two hours between the illegal arrest and the first statement, there were no intervening events. All that transpired was the police interrogation of the defendant. Clearly the taint is not purged from that statement. (Brown, 422 U.S at 604, 45 L. Ed. 2d at 428, 95 S. Ct. at 2262.) During the next 24 hours, the defendant was held overnight in the Tuscaloosa County jail. There were no discussions with him about the case until he appeared the next morning at an extradition hearing in district court in Tuscaloosa. After the hearing, he was turned over to the Evanston police, and while on the way to the airport to be returned to Illinois, he made an unsolicited statement to the police. Eight hours later, back in Evanston, the defendant made his third statement, this time to a felony review assistant after being given Miranda warnings.

The State maintains that defendant’s overnight detention, his voluntary waiver of extradition, his trip back to Evanston, and his meeting with another law enforcement official constitute intervening events sufficient to purge the taint. To purge the taint of an illegal arrest, an intervening event, considered along with the other factors of Brown, must have such an effect on the defendant so that his statement made after the event is an exercise of his free will, and not an exploitation of the initial illegality. (People v. White (1987), 117 Ill. 2d 194, 222, 512 N.E.2d 677, 688.) Circumstances under which courts have found attenuation based on intervening events include the defendant being confronted with legally seized evidence, seeing his girlfriend at the police station and being told she was cooperating with the police and being confronted with sketches which resembled himself made prior to his arrest. (See People v. Foskey (1990), 136 Ill. 2d 66, 87-88, 554 N.E.2d 192, 203 (and cases cited therein).) The events in this case, unlike those cited in Foskey, follow directly from the illegal arrest. There is no break in the chain of causation from the illegal arrest to the later statements.

The validity of the trial court’s finding that the second and third statements were the result of the illegal arrest is reinforced by People v. Thomas (1980), 80 Ill. App. 3d 1121, 400 N.E.2d 1019, a case like the present one dealing with multiple statements. Relying on Brown and Dunaway, the court found that when an initial statement, made shortly after an illegal arrest, is found to be caused by that arrest, the earlier statement creates a serious doubt that the later statement was made as a result of free will. Instead, the later statement is “the result and the fruit of the first.” Brown v. Illinois (1974), 422 U.S. 590, 605, 45 L. Ed. 2d 416, 428, 95 S. Ct. 2254, 2262.

As to the final Brown factor, the purpose and flagrancy of the official misconduct, we have addressed this earlier in our discussion of defendant’s illegal arrest. We simply note here the police have acknowledged that they were in Alabama for the sole purpose of questioning the defendant about a murder. As in Brown, “[t]he arrest, both in design and in execution, was investigatory.” Brown, 422 U.S. at 605, 45 L. Ed. 2d at 428, 95 S. Ct. at 2262.

The State contends that this case is analogous to People v. Bracy (1986), 152 Ill. App. 3d 566, 504 N.E.2d 764. We disagree. On almost every one of the Brown factors, Bracy is distinguishable from the instant case. In Bracy there were significant intervening circumstances between the arrest and the statement. Bracy saw his girlfriend at the police station and was told she was cooperating with the police. In addition, he saw the proceeds of the robbery on a desk at the station before he made his statement. Moreover, in Bracy 24 hours passed between the defendant’s arrest and his first and only inculpatory statement. Furthermore, unlike the present case, there was no evidence that the police arrested Bracy for the purpose of obtaining his statement, and the court found it not to be a case of flagrant official misconduct.

In denying the State’s motion to reconsider, the trial court expressly assumed the additional allegations made in the State’s motion to be true, thereby obviating the need for an additional evidentiary hearing to establish those factual allegations. In its ruling the trial court explicitly found insufficient attenuation to redeem the second and third statements as well as the first. Based on our review of the record and our analysis of the factors set forth in Brown, we cannot say that its ruling was against the manifest weight of the evidence.

For the reasons set forth above, the judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.

MURRAY and McNULTY, JJ., concur.


source: Caselaw Access Project

author: JUSTICE LaPORTA

license: Public Domain

text:
    LYLE PEDERSON, Plaintiff-Appellant, v. PARAGON POOL ENTERPRISES, Defendant-Appellee (American Titan Company, Defendant).
    First District (6th Division)
    No. 1—90—1049
    Opinion filed May 24, 1991.

      Michael W. Rathsack, of Chicago (Louis S. Goldstein and Cindy G. Flux-gold, of counsel), for appellant.
    McKenna, Storer, Rowe, White & Far rug, of Chicago (James R DeNardo, Gregory L. Cochran, and Christine L. Olson, of counsel), for appellee.
   JUSTICE LaPORTA

delivered the opinion of the court:

Plaintiff Lyle Pederson appeals an order granting defendant Paragon Pool Enterprises’ motion for summary judgment on the ground that Paragon Pool Enterprises did not manufacture, sell or install the pool and filter system which allegedly caused plaintiff’s injury.

Plaintiff raises two issues on appeal: (1) whether the trial court erred in holding that defendant Paragon Pool Enterprises, Inc., was not liable as a matter of law for the installation of the pool or filter which caused plaintiff’s injury; and (2) whether Paragon’s 4V2-year delay in asserting its defense barred or estopped it from raising that defense.

Plaintiff was injured on July 25, 1980, while cleaning a swimming pool and filter at a condominium complex in Waukegan, Illinois. He filed suit against defendant on July 26, 1982, which sounded in negligence and product liability. He did not place summons with the sheriff for service, and on October 27, 1983, he sought and obtained a voluntary dismissal of the action. On October 29, 1984, plaintiff refiled his action, alleging liability against Paragon Pool Enterprises and American Titan Company. The record does not disclose that plaintiff placed summons with the sheriff for service. The case was dismissed for want of prosecution on April 15, 1985, but on plaintiff’s motion the court reinstated the action May 20, 1985. Defendant was served April 21, 1985, by special process server and by motion raised the issue of forum non conveniens. The record is silent as to any disposition of this motion by the court. On July 16, 1985, the court granted defendant’s motion to vacate any and all defaults against him, technical or otherwise, and granted defendant leave to file an appearance and an extension of time to file its answer to September 16,1985.

Count I alleged that Paragon Pool Enterprises negligently installed a pool and filtering system and failed to warn persons that a ring on the filter might prematurely disengage, causing injury. Count II alleged that the swimming pool and filtering system were designed, manufactured and sold by Paragon Pool Enterprises and were defective, unreasonably dangerous and unsafe. Counts III and IV alleged the same liability on the part of American Titan Company with regard to the filtering system only. Plaintiff never served American Titan Company, and the company is not part of this appeal.

In its answer Paragon stated a general denial of its involvement in the manufacture, sale or installation of the pool and filter allegedly involved in plaintiff’s injury. A subsequent motion filed by defendant indicates that the answer was filed on September 16, 1985.

On July 16, 1986, defendant Paragon moved to dismiss the action pursuant to Supreme Court Rule 103(b) (134 Ill. 2d R. 103(b)), which provides that an action may be dismissed with prejudice where a plaintiff fails to exercise reasonable diligence to obtain service after the expiration of the applicable statute of limitations. On February 19, 1987, the trial court denied defendant’s motion to dismiss, finding that although plaintiff failed to exercise diligence in service of summons, defendant had waived its objection to late service by filing its general appearance and answer to the complaint.

The parties participated in discovery until December 8, 1989, when defendant moved for summary judgment pursuant to section 2—1005 of the Illinois Code of Civil Procedure. (Ill. Rev. Stat. 1989, ch. 110, par. 2—1005.) Section 2—1005 permits a court to dismiss an action if it determines that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law.

In its motion for summary judgment, defendant again stated that it was in no way a participant in the manufacture, sale or installation of the pool and filter system at issue. Defendant noted that it first made this denial in its answer to the second complaint, timely filed five months after defendant was served with summons.

In support of its motion, defendant submitted the affidavit of Ronald Atlas, who was the president and sole shareholder of Paragon Pool Enterprises, Inc., at the time of plaintiff’s injury on July 25, 1980. Atlas’ affidavit stated that Paragon Pool Enterprises, Inc., was incorporated solely to hold and protect the patent of a particular mooring device called a star dock, a device used in a harbor to moor boats. However, plaintiff is alleged to have been injured by a pool filtering system in a residential setting and not by a mooring device.

Affiant stated that defendant had no employees and was not in the business of manufacturing, selling or installing pools. Affiant acknowledged that in 1980 he was also a 50% shareholder in a company called Paddock of the Midwest and that he became sole shareholder of that company in 1982. Affiant stated that his review of the books and records of Paddock of the Midwest indicated that the pool and filtering system in the Waukegan condominium complex where plaintiff was injured were installed by Paddock of the Midwest prior to 1980.

On February 14, 1990, plaintiff filed his response to defendant’s motion for summary judgment in which he urged the court to deny the motion on two grounds. Plaintiff argued first that Paragon Pools Enterprises was merely the “alter ego” of Paddock of the Midwest and that therefore the court should pierce the corporate veil between the two companies. Plaintiff also argued that defendant was estopped from contending that it was an improper party to the suit because it waited nearly five years to raise the argument and because defendant concealed the existence and possible involvement of Paddock of the Midwest.

In response defendant contended plaintiff failed to provide evidence to justify piercing the corporate veil. Defendant argued that Illinois law provides that common officers and directors and common ownership alone do not justify destroying the protection of corporate ownership. Defendant argued that plaintiff was on notice from the date the answer was filed that he had sued a party who had not manufactured, sold or installed the pool and filter involved. Defendant argued that it did not “conceal” information about the proper defendant or commit fraud by not volunteering information earlier about Paddock of the Midwest. Defendant argued that it should not be penalized for plaintiff’s failure to properly investigate the facts which support his case and had he done so he would have learned that Paragon was not the proper defendant.

On March 7, 1990, the trial court granted defendant’s motion for summary judgment and dismissed the action against defendant with prejudice. Plaintiff appeals.

On appeal plaintiff contends that the “close ties” between Paragon Pool Enterprises and Paddock of the Midwest are such that the trial court was in error to find the two corporations should not be treated as one by piercing the corporate veil. Plaintiff contends the trial court erred in holding as a matter of law that defendant Paragon was not liable for the installation of the pool and filter.

Piercing a corporate veil is a task which courts should undertake reluctantly. (Sumner Realty Co. v. Willcott (1986), 148 Ill. App. 3d 497, 501-02, 499 N.E.2d 554, 557.) In order to pierce the corporate veil: (1) there must be such unity of interest and ownership that the separate personalities of the corporation and the individual no longer exist, (2) and circumstances must be such that an adherence to the fiction of a separate corporate existence would promote injustice or inequitable consequences. (McCracken v. Olson Cos. (1986), 149 Ill. App. 3d 104, 109, 500 N.E.2d 487.) A party seeking to have a corporate identity disregarded must come forward with a substantial showing that one corporation is really a dummy or sham for another. Kelsey Axle & Brake Division v. Presco Plastics, Inc. (1989), 187 Ill. App. 3d 393, 401, 543 N.E.2d 239, 244.

Illinois courts have found several factors that weigh in favor of piercing the corporate veil. Among them: failure to comply with corporate formalities such as electing officers and holding board meetings (Northwest Suburban Congregation Beth Judea, Inc. v. Rosen (1982), 103 Ill. App. 3d 1137, 1143, 432 N.E.2d 335), mixing assets of two corporations (McCracken, 149 Ill. App. 3d at 110), undercapitalizing one of the corporations (McCracken, 149 Ill. App. 3d at 111), and permitting one corporation to act as a business conduit for a dominant corporation ( Central National Bank v. Fleetwood Realty Corp. (1982), 110 Ill. App. 3d 169, 181, 441 N.E.2d 1244, 1252).

The use of common officers and directors in and of itself does not render one corporation liable for the obligations of another (Main Bank v. Baker (1981), 86 Ill. 2d 188, 204, 427 N.E.2d 94, 101-02), nor does the sharing of office space. Sumner Realty Co., 148 Ill. App. 3d at 502; Logal v. Inland Steel Industries, Inc. (1991), 209 Ill. App. 3d 304, 568 N.E.2d 152.

In Kelsey Axle & Brake Division the appellate court affirmed a trial court’s refusal to pierce the corporate veil between two companies. The court noted that plaintiff provided no evidence of mixing corporate assets, no underfunding of one corporation to benefit the other and no evidence that one was used as a facade in order to permit the other to avoid its responsibilities. Kelsey Axle & Brake Division, 187 Ill. App. 3d at 401.

Plaintiff argues that the two corporations should be treated as one because they had common shareholders, business addresses, officers and directors. In addition, Paddock of the Midwest used the trade name Paragon Pools for the pools it installed. Plaintiff contends that where such commonality exists, Illinois courts have pierced the corporate veil which limits liability to find the two corporations constitute one entity. Holland v. Joy Candy Manufacturing Corp. (1957), 14 Ill. App. 2d 531, 535, 145 N.E.2d 101, 103; Federal Insurance Co. v. Maritime Shipping Agencies, Inc. (1978), 64 Ill. App. 3d 19, 32, 380 N.E.2d 873, 880-81, superseded by statute as stated in Harris v. Harris (1990), 196 Ill. App. 3d 815, 555 N.E.2d 10.

In Holland the appellate court upheld a trial court ruling that pierced the corporate veil between Joy Candy Manufacturing Corp. and its retail distributor, Candy Shoppes. The court found Candy Shoppes was a “mere instrumentality” of its manufacturer. The court found the affairs of the two companies were managed and controlled by the same officers and directors and a single shareholder so as to constitute one corporate entity in its dealings with creditors. Holland, 14 Ill. App. 2d at 535.

In Federal Insurance Co., the trial court considered the relationship between two companies, one with a judgment against it and another incorporated to replace the first. The facts indicated that the first corporation, Maritime, had problems with a client that gave both companies bad reputations so Maritime’s owners decided to cease operations as Maritime and open a new company. The new company, Glacier, took on the assets, staff and personal property of Maritime. Admissions by the company owners showed that Glacier was established to avoid potential creditors. Maritime’s bank account balance was transferred to Glacier to pay Maritime’s bill. The trial court found Glacier and its owners merely “alter egos” of Maritime and that finding was upheld on appeal. Federal Insurance Co., 64 Ill. App. 3d at 32.

Plaintiff argues that other factors combine to create at the very least a question of fact as to whether the corporate veil should be pierced. Chief among them is that Paddock of the Midwest installed pools that were manufactured with the trade name Paragon Pools. The maintenance manual for the pool involved had the words “Paragon Pool” in large letters across the top. Plaintiff argues that anyone who was aware of a corporation named Paragon Pool Enterprises and that the pool involved in the incident was a Paragon Pool might reasonably conclude that Paragon Pools Enterprises was a corporation involved in the sale and installation of the pool.

Plaintiff contends the trial court erred in granting defendant’s summary judgment motion because of the doubt that exists concerning the independence of the two corporations. Summary judgment is a drastic measure and should only be allowed when a moving party’s right to it is clear and free from doubt. Pyne v. Witmer (1989), 129 Ill. 2d 351, 358, 543 N.E.2d 1304, 1307; Murphy v. Urso (1981), 88 Ill. 2d 444, 464, 430 N.E.2d 1079, 1088.

Defendant argues initially that plaintiff is barred from alleging an “alter ego” theory on appeal in an effort to pierce the corporate veil because he did not allege this theory in his complaint. (South Side Bank v. T.S.B. Corp. (1981), 94 Ill. App. 3d 1006, 419 N.E.2d 477; Be velheimer v. Gierach (1975), 33 Ill. App. 3d 988, 992, 339 N.E.2d 299, 303.) Plaintiff does not address this portion of defendant’s argument.

In Bevelheimer the plaintiff, who was corporate president, brought suit individually and on behalf of the corporation. The defendant contended that plaintiff was not a proper plaintiff to which plaintiff responded that he and the corporation were one. On appeal the court held that he had not alleged sufficient facts to establish the identity or the relationship. (Bevelheimer, 33 Ill. App. 3d at 992.) The court in Bevelheimer stated that a corporation is a separate entity from its shareholders and those who seek to have the court apply an exception to that rule must state a claim for such relief in their pleadings, and they carry the burden of proving actual identity (Bevelheimer, 33 Ill. App. 3d at 993; South Side Bank, 94 Ill. App. 3d at 1010) or a misuse of corporate form which would result in a fraud. Divco-Wayne Sales Financial Corp. v. Martin Vehicle Sales, Inc. (1963), 45 Ill. App. 2d 192, 197, 195 N.E.2d 287.

In South Side Bank plaintiff, who was a shareholder only in the parent company, sued to compel production of the corporate records of the parent company and of its subsidiary. The appellate court held that the plaintiff had no right to inspect the records of the subsidiary unless he could prove that the subsidiary was the alter ego of the parent corporation, and the trial court’s dismissal of the plaintiff’s suit to compel was affirmed. (South Side Bank, 94 Ill. App. 3d at 1009-10.) The court held that one who seeks to have the courts apply an exception to the rule of separate corporate existence must seek that relief in his pleading and carries the burden of proving actual identity or misuse of the corporate form resulting in a fraud on him. South Side Bank, 94 Ill. App. 3d at 1010.

Defendant argues that this court cannot reasonably find Paragon and Paddock of the Midwest are a single identity. Some element of unfairness, something akin to fraud or deception or the existence of a compelling public interest must be present in order to disregard the corporate fiction. Bevelheimer, 33 Ill. App. 3d at 994.

Defendant concedes that the officers, directors and owners were the same for the two corporations and that the companies worked out of the same office space. But defendant contends that this is not enough to pierce the corporate veil because other formalities of corporate ownership were maintained and plaintiff has not alleged facts that would support a showing of fraud. Defendant argues that the two corporations were in different businesses and were not structured to circumvent the rights of creditors.

Defendant distinguishes Holland on the facts by noting that Holland had done advertising for the candy which was made by the manufacturer corporation and then distributed by Candy Shoppes. Both companies were solely owned and managed by one woman who ran both out of a single office. The manufacturer provided candy on consignment to the Candy Shoppes, reserving title to the merchandise. Defendant also distinguishes Federal Insurance Co. on its facts where one company was clearly the successor to the original corporation because of its financial difficulties with a creditor. Defendant notes that Paragon was not a successor corporation to Paddock of the Midwest and that the two corporations existed simultaneously in separate unrelated businesses. At no time did one company take over the other or own stock in the other.

Plaintiff acknowledges that Paragon was incorporated to hold title on a patent and that the patent expired in 1984 or 1985. The corporation was then involuntarily dissolved by the State of Illinois. We note that Atlas testified in his deposition that Paddock of the Midwest filed for bankruptcy protection in June 1980, a month before plaintiff was injured, and the bankruptcy case was terminated in December 1983. Atlas, the sole owner of the two companies, did incorporate another business in August 1983 which bought the physical assets of Paddock of the Midwest but did not assume Paddock’s liabilities and was in the business of the manufacture and installation of pools and related accessories.

Nothing in these facts provides evidence of scheming on the part of defendant to commit a fraud on potential creditors of Paragon and Paddock of the Midwest. Plaintiff does not allege a mixing of corporate assets or underfunding of one company to benefit the other. Plaintiff does not allege a failure to comply with corporate formalities.

We need not reach the issue of plaintiff’s failure to plead the alter ego theory in his complaint since plaintiff has failed to preserve sufficient evidence to justify piercing the veil of the separate corporate identities of Paragon and Paddock of the Midwest.

We must assume that here the complaint was filed against the entity the plaintiff believed was the proper party. Four and one-half years later the defendant raised the issue of improper party defendant. The plaintiff could not be expected to plead something of which he was presumably unaware initially.

Summary judgment is proper if, from the pleadings and supporting documents on file, plaintiff fails to establish an element of the cause of action. (Pyne, 129 Ill. 2d at 358.) When viewed in the light most favorable to plaintiff, we believe no set of facts can be pled or proven to find defendant liable. Therefore we conclude the court properly granted defendant’s motion for summary judgment.

Finally, plaintiff contends that defendant’s “extraordinarily long,” 41/2-year delay in asserting its defense barred or estopped defendant from raising its defense that the wrong corporation has been sued.

Paragon filed its appearance in July of 1985 and moved for summary judgment in December of 1989. Plaintiff argues that Paragon was “obviously” aware of this defense from the inception of the case and could have presented it by way of a motion under section 2—619 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2—619) or as an affirmative defense. Plaintiff adds that Paragon alone knew that the pool was installed by Paddock.

Plaintiff admits it cannot cite authority to support its argument of estoppel or waiver but refers us to three other types of cases in which the courts barred a defendant from using a defense because of a delay in presenting the motion. Bell v. Louisville & Nashville R.R. Co. (1985), 106 Ill. 2d 135, 146-47, 478 N.E.2d 384, 389; Peoples Gas Light & Coke Co. v. Austin (1986), 147 Ill. App. 3d 26, 35, 497 N.E.2d 790, 797; Lovell v. Hastings (1973), 11 Ill. App. 3d 221, 223, 296 N.E.2d 608, 610.

In Bell, the supreme court considered two cases consolidated on interlocutory appeals in which the circuit court denied a railroad company’s motion to dismiss the two cases on the ground of forum non conveniens. Plaintiffs argued on appeal that defendant had waived its right to file such a motion because defendant’s motions asking the circuit court to decline jurisdiction were filed 32 and 39 months after the original complaints were filed. The supreme court upheld the trial court’s denial of the railroad company’s motions in both cases but refused to adopt a per se rule that would set a specific time in which a defendant must ask the court to deny jurisdiction. The court held that a delay in the filing of a forum non conveniens motion should be one factor a court weighs when considering such a motion. Bell, 106 Ill. 2d at 146-47.

In Peoples Gas Light & Coke Co., the court stated in dicta that a defendant may have waived her right to object to tardy service of process when she waited 19 months before objecting to plaintiff’s lack of diligence. Supreme Court Rule 103(b) provides that if a plaintiff lacks reasonable diligence in obtaining service on a defendant, the action may be dismissed without prejudice. (134 Ill. 2d R. 103(b).) The court also stated that where a defendant delays in raising objections under Rule 103(b) and participates in discovery for the purpose of preparing a defense, then he waives his right to object to plaintiff’s lack of diligence in serving him. People's Gas Light & Coke Co., 147 Ill. App. 3d at 36.

In Lovell, the court held that defendant’s participation in an ongoing action, coupled with a 125-day delay by defendant to file a Rule 103(b) motion alleging lack of diligence by plaintiff in serving process on defendant, constituted a waiver. Lovell, 11 Ill. App. 3d at 223.

Defendant argues that plaintiff’s reliance on these three cases is misplaced because none of them involves the waiver of a right to file a motion for summary judgment. Defendant distinguishes Bell by noting that it dealt with a procedural defense, forum non conveniens, and not with a question on the merits of the case. In addition, the holding in Bell has been superseded by the adoption of Supreme Court Rule 187, which requires that a motion to dismiss based on forum non conveniens be filed no later than 90 days after the last day allowed for filing of a party’s answer (134 Ill. 2d R. 187). Defendant distinguishes the two other cases cited by plaintiff, Lovell and Peoples Gas Light & Coke Co., on the ground that they too dealt with diligence in service of process, a procedural defense.

Defendant argues further that plaintiff is in error when he contends that only the defendant knew who installed the pool. Defendant contends that plaintiff could have, but failed to, undertake discovery or an investigation on his own to determine the proper defendant. Thomson v. McDonald's Inc. (1989), 180 Ill. App. 3d 984, 536 N.E.2d 760.

In Thomson the court held that McDonald’s did not fraudulently conceal the true owners of a McDonald’s franchise by failing to comply with discovery in a timely manner. In Thomson, plaintiff sued the corporation after slipping on ice at a McDonald’s restaurant. In its answer, McDonald’s stated that it did not own or control the premises where plaintiff was injured. Subsequently, McDonald’s failed to timely comply with plaintiff’s discovery requests which plaintiff contends ultimately provided her with information on the true identity of the restaurant owners. When McDonald’s did provide discovery answers with this information, the statute of limitations had passed for filing suit against the true owners. The appellate court found McDonald’s was not obligated to do anything more than it did. The court stated that the silence of a defendant accompanied by a plaintiff’s failure to discover the cause of action does not constitute fraudulent concealment. Thomson, 180 Ill. App. 3d at 986.

Defendant argues that plaintiff is attempting to do the same thing here by imposing on defendant an affirmative duty to assist plaintiff in the investigation of his case. Defendant argues that he denied plaintiff’s allegations in his answer to the complaint, as in Thomson, and is under no further obligation to disclose the proper party to be sued. Defendant argues that plaintiff should not now be able to claim defendant is estopped from raising its defense when plaintiff was put on notice four years earlier but took no steps to discover the correct entity to sue.

Finally, defendant argues that plaintiff has not been prejudiced by the 41/2-year span between the time defendant filed an appearance, July of 1985, and when defendant filed its motion for summary judgment, December of 1989. Defendant directs the court to its answer to plaintiff’s complaint filed September 16, 1985, wherein defendant denied installing or selling the swimming pool and filter system that allegedly caused plaintiff’s injuries. Defendant argues that it was served with summons more than four years after the occurrence and long after a new defendant could have been brought into the suit by reason of the expiration of the statute of limitations.

We believe defendant’s arguments are sound. To find otherwise would permit a defendant to be held liable for something he did not do simply because he failed to turn over information on the identity of the actual tortfeasor. It makes no sense to then conclude that if the defendant sued was not the proper party defendant and therefore potentially liable at the onset of the litigation, the mere passage of time from service of summons on him to the filing of his motion for summary judgment based on plaintiff’s failure to sue the proper party defendant in some way now makes him liable.

We find that the defendant is not estopped and did not waive its right to present its defense that the wrong corporation had been sued.

We hold that the trial court properly granted defendant’s motion for summary judgment and affirm the trial court ruling.

Judgment affirmed.

EGAN and McNAMARA, JJ., concur.


text:
    ETA TRUST, Plaintiff-Appellant, v. GEORGE V. RECHT, Defendant-Appellee.
    First District (6th Division)
    No. 1—90—1245
    Opinion filed April 5, 1991.
    Rehearing denied June 14, 1991.

      James D. Montgomery & Associates, Ltd., of Chicago (Robert R Vogt, of counsel), for appellant.
    Peter N. Apostal, of Chicago, for appellee.
   JUSTICE LaPORTA

delivered the opinion of the court:

Plaintiff appeals a court order granting defendant’s motion to dismiss plaintiff’s petition to register a foreign judgment. Plaintiff raises as issues on appeal: (1) whether the trial court erred in ruling that the Massachusetts court lacked jurisdiction to enter judgment against a nonresident defendant where the lease agreement contained a forum selection clause designating Massachusetts as the forum State which would have jurisdiction over disputes, where the lease agreement provided an agreed method of permissible service and where the judgment was entered against defendant in the designated forum State upon a showing that the agreed upon provisions for service had been met; and (2) whether the trial court erred in interpreting the lease agreement’s provisions for forum selection and method of service as excluding and therefore as inapplicable to defendant-guarantor.

On November 9, 1989, plaintiff petitioned the first municipal district of the circuit court of Cook County, Illinois, for registration of a foreign judgment entered against defendant as guarantor on a lease for his son, then a student in Cambridge, Massachusetts, as lessee. The petition stated that a judgment for $3,229.29 was entered by the Massachusetts court on September 17, 1982, and that the judgment remained unsatisfied. The petition sought an additional amount for post-judgment interest at the annual rate of 12% as provided in the Massachusetts statute.

On November 17, 1989, the court registered the foreign judgment entered in Massachusetts against defendant for the original judgment amount together with post-judgment interest, all in the total amount of $7,138.92. Defendant was served with summons, and thereafter entered a limited and special appearance and moved to dismiss plaintiff’s petition for registration of foreign judgment. Defendant argued that the foreign judgment was not “conclusive” as required by the Illinois statute because the Massachusetts court had no personal jurisdiction over defendant and he was not properly served with summons prior to entry of the judgment. (Ill. Rev. Stat. 1989, ch. 110, pars. 12—621(a)(2), (b)(1).) Defendant contended that for those reasons the plaintiff was not entitled to register the foreign judgment in Illinois and that the court should quash the summons issued in this cause. Defendant’s motion was supported by his affidavit, which denied receipt of notice or service in the Massachusetts action and denied knowledge of the entry of the judgment against him.

On December 15, 1989, the court entered an order dismissing the petition for registration of foreign judgment and quashed the service of summons on defendant. The court expressly stated that it found defendant’s case similar to another Massachusetts case, Spunt v. Kapral (Mass. Dist. Ct. 1976), No. 1597, wherein a Massachusetts trial court in its memorandum decision found it had no jurisdiction over that defendant. Kapral was a resident of New York and had also signed as a guarantor on the lease that is the subject of this appeal. That decision was entered by a different trial judge than the judge who entered judgment against Recht.

Plaintiff filed a motion to vacate the dismissal order here, contending that defendant’s motion to dismiss contained several misrepresentations of law and facts which plaintiff did not have an opportunity to rebut. On January 9, 1990, the trial court granted plaintiff’s motion to vacate the dismissal order, heard additional arguments of the parties and again ruled in defendant’s favor. The court granted the motion to dismiss the petition for registration of foreign judgment with prejudice and quashed the summons.

On February 7, 1990, plaintiff filed a motion to reconsider with supporting documents. Plaintiff alleged that the Massachusetts court had jurisdiction over defendant because of paragraph 36 in a rider attached to the lease, which stated: “As guarantors’ signatures are being executed outside Massachusetts, provisions for acknowledgements have been made below. The parties all acknowledge jurisdiction involving any matters in connection with this lease to the Courts of Middlesex County of Massachusetts and any notices given or services made shall be deemed to be valid and appropriate if given by certified mail prepaid to the respective party (addressee), at their last and usual address according to Lessor’s records or as provided on the rental application forms, whether or not actually received.” Plaintiff also filed a certificate of judgment from the Massachusetts court and an affidavit from plaintiff’s attorney to establish that plaintiff sent notice of the proceeding by certified mail to defendant at the time the suit was filed but that defendant refused to accept the certified mail in two attempted deliveries by the United States Postal Service.

Defendant filed a response to the motion to reconsider in which he raised three arguments. He contended that the purported consent in the contract agreement to the jurisdiction of the Massachusetts court found in paragraph 36 of the rider was invalid because it recited no consideration, was not signed by the plaintiff and therefore lacked mutual assent. He also contended that defendant signed the guarantee outside Massachusetts and lacked the minimum contacts with the State required for in personam jurisdiction. Finally, defendant contended that he did not receive actual notice of the pending litigation in Massachusetts as required by the laws of that State for due process.

On March 9, 1990, the trial court denied plaintiff’s motion to reconsider, finding that the guarantors were not “parties” to terms and conditions of the lease but were only guarantors of the lessees’ performance. In addition, the court found “the guarantors’ contacts were too minimal to confer jurisdiction of the Illinois resident on Massachusetts.” The trial court adopted the reasoning of the Massachusetts trial court decision in Kapral, which held that the Massachusetts court had no jurisdiction over that defendant. In the memorandum decision, the Massachusetts trial court relied on International Shoe Co. v. Washington (1945), 326 U.S. 310, 90 L. Ed. 95, 66 S. Ct. 154, which held that, in order to subject a nonresident defendant to in personam jurisdiction, the defendant must have minimum contacts with a State so that an action against him would not offend the “traditional notions of fair play and substantial justice.” In dismissing the suit against Kapral, the trial court held that because the contract between plaintiff and defendant was made outside Massachusetts, and defendant had never resided in Massachusetts nor did he transact business in the State nor have any interest in or use or possession of realty in Massachusetts, that defendant did not have the requisite minimum contacts with the State for in personam jurisdiction. Our search indicates that the Kapral decision was not appealed.

Initially we note that the judge erred in granting defendant’s motion to quash service of summons on plaintiff’s petition to register the Massachusetts judgment in Illinois. Defendant filed a special and limited appearance pursuant to section 2—301 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2-301). Section 2-301 permits a party to file a special and limited appearance for the sole purpose of objecting to the jurisdiction of the court over the person. Defendant does not contest jurisdiction of the Illinois court but instead asks this court to find the Massachusetts court had no jurisdiction to impose judgment against him and therefore a special and limited appearance here is inappropriate.

Even if defendant intended to challenge the Illinois court’s jurisdiction over him, he waived that right when he took part in further proceedings in the case. Any participation by a litigant which relates to the subject matter of the litigation submits him to the jurisdiction of the court, and his special and limited appearance becomes a general appearance that precludes a challenge to the court’s in personam jurisdiction over the defendant. (Colletti v. Crudele (1988), 169 Ill. App. 3d 1068, 1075, 523 N.E.2d 1222.) The trial court should have either granted defendant’s motion to quash service and then not proceeded with a hearing on the substantive matters or it should have denied the motion to quash service and then proceeded to hear defendant’s objections to the petition for registration of the foreign judgment. For the trial court to have quashed service and then proceeded to rule on substantive matters was error.

We next consider whether the trial court erred in ruling that the Massachusetts court lacked jurisdiction to enter judgment against a nonresident defendant who signed a lease agreement containing a forum selection clause and an agreed-upon method of service.

The Uniform Enforcement of Foreign Judgements Act (Act) (Ill. Rev. Stat. 1987, ch. 110, pars. 12—601 through 12—617) was enacted to implement the full faith and credit clause of the United States Constitution (U.S. Const., art. IV, §1; Thompson v. Safeway Enterprises, Inc. (1978), 67 Ill. App. 3d 914, 385 N.E.2d 702, 705). Section 12—602 of the Act states: “On application made within the time allowed for bringing an action on a foreign judgment in this State, any person entitled to bring such action may have a foreign judgment registered in any court of this State having jurisdiction of such an action.” (Ill. Rev. Stat. 1987, ch. 110, par. 12—602.) A strong legal presumption exists that a court of general jurisdiction entering a judgment had jurisdiction to render the judgment. (Paine, Webber, Jackson & Curtis, Inc. v. Rongren (1984), 127 Ill. App. 3d 85, 468 N.E.2d 459.) A court considering a petition for registration of foreign judgment may inquire into the jurisdictional basis of a foreign court’s judgment and shall give full faith and credit to the judgment when the inquiry discloses that the issue of jurisdiction has been litigated and decided in the rendering court. Brownlee v. Western Chain Co. (1977), 49 Ill. App. 3d 247, 251, 364 N.E.2d 926, 929; People ex rel. Scott v. Dravo Corp. (1973), 10 Ill. App. 3d 944, 295 N.E.2d 284, 289.

Plaintiff argues on appeal that the Massachusetts court found it had jurisdiction based on the forum selection clause in paragraph 36 of the rider to the subject lease and that such clauses are prima facie valid and will only be set aside upon a showing of fraud, undue influence, overwhelming bargaining power or such serious inconvenience in litigating in the selected forum that it would effectively deprive a party of his day in court. (LFC Lessors, Inc. v. Pearson (D. Mass. 1984), 585 F. Supp. 1362.) Plaintiff argues that defendant has claimed no such hardship but in fact voluntarily signed the contract. Massachusetts law acknowledges the validity of forum selection clauses. W.R. Grace & Co. v. Hartford Accident & Indemnity Co. (1990), 407 Mass. 572, 555 N.E.2d 214.

Plaintiff cites National Equipment Rental, Ltd. v. Polyphasic Health Systems, Inc. (1986), 141 Ill. App. 3d 343, 347, 490 N.E.2d 42, 44, where the court considered whether to permit registration of a foreign judgment in Illinois on a contract signed in New York which included a forum selection clause and a specified method of permissible service. The appellate court held that the contract provisions, including the forum selection and service provisions, were valid and enforceable. The court found this to be sufficient minimum contact necessary for the New York court to assert jurisdiction. National Equipment Rental, Ltd., 141 Ill. App. 3d at 347.

Plaintiff contends that it is undisputed that a certified letter with the proper summons and complaint was mailed to the defendant. Plaintiff argues that the Massachusetts court found this sufficient evidence of certified mail delivery of service of summons on the defendant to satisfy the requirements of the parties’ contract. Plaintiff argues that the United States Supreme Court has found valid contract clauses which specify an agreed method of service. M/S Bremen v. Zapata Off-Shore Co. (1972), 407 U.S. 1, 11, 32 L. Ed. 2d 513, 521, 92 S. Ct. 1907, 1913-14; National Equipment Rental, Ltd. v. Polyphasic Health Systems, Inc. (1986), 141 Ill. App. 3d 343, 347, 490 N.E.2d 42, 44.

Defendant urges this court to find that the foreign judgment is inconclusive and therefore cannot be registered in Illinois, because defendant lacked minimum contacts with the jurisdiction so as to subject him to the jurisdiction of the Massachusetts court, since he neither resided in the State nor used the leased premises. Defendant cites section 12—621 of the Uniform Foreign Money-Judgments Recognition Act, which states, in pertinent part, that a foreign judgment is not conclusive if a foreign court did not have personal jurisdiction over the defendant and the judgment need not be recognized if the defendant did not receive notice of the proceeding in the foreign court in sufficient time to enable him or her to defend. Ill. Rev. Stat. 1987, ch. 110, pars. 12—621(a)(2), (b)(1).

Defendant argues further that the Massachusetts court lacked jurisdiction over him because it had no proof defendant received actual notice of the proceeding. Defendant argues that he is not subject to the certified mail provision provided for in paragraph 36 of the rider attached to the lease agreement because the rider was legally binding upon the lessees only and was not binding on the guarantors. Therefore, defendant contends, plaintiff was required to comply with the Massachusetts rules of civil procedure, which require service by certified mail return receipt signed by the addressee for valid out-of-State service. (Mass. Ann. Laws, Rules of Civ. Proc. R. 4(e) (Law. Co-Op. 1982).) Defendant adds that there is no proof that the certified letter plaintiff allegedly sent even included a summons and copy of the complaint. We note, however, that defendant also has not proven that the envelope did not contain a copy of the complaint and summons.

The record includes an affidavit and a copy of a certified mail envelope which were before the Massachusetts court in 1982 when it rendered judgment against defendant. The affidavit by plaintiff’s attorney states in part: “[I] personally spoke to the defendant on the telephone and ascertained that the defendant lived at 3401 Bellwood Lane, Glenview, Illinois 60025. [I], pursuant to the terms of the lease and guarantee, mailed a certified letter to the defendant at his address. This letter is attached, and it was refused and remained unclaimed after two (2) notices of attempted delivery.” A photocopy of the certified mail envelope is also attached, showing hand notations of dates in July 1981. The envelope’s content referred to in the affidavit as “attached letter” is not part of the record.

In construing the provisions of a written instrument, the prime consideration is to ascertain and effectuate the intention of the parties at the time of execution. (Chemical Petroleum Exchange, Inc. v. Metropolitan Sanitary District of Greater Chicago (1980), 81 Ill. App. 3d 1005, 1009, 401 N.E.2d 1203, 1206.) A typed portion of a document prevails over a printed portion in determining the construction of a contract. Lambos v. Lambos (1972), 9 Ill. App. 3d 530, 292 N.E.2d 587, 590.

Here, defendant took the affirmative step of signing a lease agreement which stated a chosen forum and method of permissible service of process. The paragraph containing both choice of forum and notice was typed in at the end of the printed lease. Following the law enunciated in National Equipment Rental, Ltd. v. Polyphasic Health Systems, Inc. (1986), 141 Ill. App. 3d 343, 490 N.E.2d 42, we find defendant is barred from denying the validity of the forum selection and service provisions in the contract.

We next consider the trial court’s determination that defendant lacked minimum contact with the State so as to afford the State jurisdiction. In determining whether there is some reasonable minimum contact with the forum State, the court will consider whether by his act the defendant voluntarily elects to invoke the protection of the foreign State’s law. (Schneider Corp. of America v. R.W. Borrowdale Co. (1980), 89 Ill. App. 3d 904, 906, 412 N.E.2d 605, 606-07.) Parties to a contract may agree in advance to submit to the jurisdiction of a given court, to permit notice to be served by the opposing party in a specific manner or even to waive notice. National Equipment Rental, Ltd. v. Szukhent (1964), 375 U.S. 311, 316, 11 L. Ed. 2d 354, 358, 84 S. Ct. 411, 414.

A forum selection clause in a given agreement has been held sufficient to constitute consent to personal jurisdiction in a foreign State. (National Equipment Rental, Ltd. v. Polyphasic Health Systems, Inc., 141 Ill. App. 3d at 347.) We find defendant cannot invoke the minimum contacts protection of International Shoe because he consented by contract agreement to Massachusetts as the forum State and to a specified permissible type of service of process.

Finally, defendant argues that even if the lease could be construed so as to apply only to an out-of-State defendant, the court would still be prevented from enforcing the forum selection clause and service provision against him because he was merely a guarantor on the lease and not a “party” to the lease. Defendant argues further that the rider specifying the forum and type of service was attached to the back of the contract, on the page following his signature, and that the lack of his signature on the rider is a “glaring and fatal legal omission to the enforceability” of the rider.

Plaintiff argues that the only reasonable construction of the lease, including the guaranty clause, is a finding that the guarantors intended to submit to the jurisdiction of Massachusetts courts and consented to a specific means of service of process. Plaintiff states that paragraph 36 was inserted specifically because guarantors were involved in the contract. That paragraph provides that “the parties all acknowledge jurisdiction” in Massachusetts and that “any notices given or served shall be given by certified mail, whether or not actually received.” Plaintiff cites paragraph 14 of the lease, which specifically refers to an agreed-upon form of notice between lessor and lessee. Plaintiff argues that paragraph 36 would be duplicative of paragraph 14 and therefore unnecessary if the court were to find that it did not apply to the guarantors but simply provided an agreed-upon means of notice between lessor and lessee.

Defendant asks us to construe the forum selection clause and service provision to apply only to lessor/lessee. Clearly, the provisions in the entire paragraph No. 36 were meant to include and apply to the guarantors as well. We find that the clear language of the rider applies to all persons who signed the written document, and, accordingly, that defendant has specifically agreed to the jurisdiction of the Massachusetts court and to service by certified mail, whether or not he accepted or received service of process by certified mail.

Defendant’s argument that there was no mutual assent to the rider portion of the contract is ludicrous. Defendant does not contend that the rider was attached after his signature was affixed or that he did not read the rider. A reference to the rider is found in the printed lease document above and on the same page as defendant’s signature. The notary verification of defendant’s signature, affixed in Illinois after defendant signed the document, appears on the rider page following paragraph 36. To suggest that defendant was unaware of the rider, or that it was not part of the document and attached to it when defendant signed, makes no sense. It cannot have happened that way.

Full faith and credit must be extended to a foreign judgment when the inquiry discloses that the issue of jurisdiction has been litigated and decided in the rendering court. (Brownlee v. Western Chain Co. (1977), 49 Ill. App. 3d 247, 251, 364 N.E.2d 926, 929; People ex rel. Scott v. Dravo Corp. (1973), 10 Ill. App. 3d 944, 950, 295 N.E.2d 284, 289.) Defendant does not argue that the Massachusetts court failed to consider whether it had jurisdiction to render the judgment. Defendant did not challenge the sufficiency of proof before the Massachusetts court. The affidavit from plaintiff’s attorney was unrefuted when the Massachusetts trial court found that it had jurisdiction to render judgment against defendant.

Defendant relies on the Kapral decision, where the Massachusetts court, by a trial judge other than the judge who entered judgment against Recht, found it had no jurisdiction over a guarantor on the lease. We find that case factually dissimilar to ours. Kapral was a resident of New York who challenged the trial court’s jurisdiction in Massachusetts. Kapral was served by registered mail in New York and then in Massachusetts filed a motion to dismiss the action for lack of jurisdiction over the person and insufficiency of process under Massachusetts rules of civil procedure. The Massachusetts trial court found it had no jurisdiction over Kapral.

Here, defendant chose twice to refuse service of the complaint and summons by certified mail and did not challenge in Massachusetts the jurisdiction of the Massachusetts court or its right to enter judgment against him.

Defendant’s unwillingness to participate as a party in the Massachusetts action should not now be the key to his success in avoiding registration of the foreign judgment in Illinois. We are required to give full faith and credit to a foreign judgment when our inquiry discloses that the issue of jurisdiction was litigated and decided in the foreign court. We find that the defendant was properly subject to the jurisdiction of the Massachusetts court by reason of the provisions of paragraph 36 of the lease and by reason of that court’s conclusion that attempted certified mail service on the defendant was made. We find that the Massachusetts judgment was valid against defendant.

For all of these reasons, the order of the trial court dismissing plaintiff’s petition to register a foreign judgment should be reversed and this cause remanded for further proceedings to enforce judgment.

Judgment reversed and remanded.

RAKOWSKI, P.J., and EGAN, J., concur.