author: PRESIDING JUSTICE REINHARD

text:
    RICHARD PFAFF, Plaintiff, v. CHRYSLER CORPORATION et al., Defendants (Chrysler Corporation, Third-Party Plaintiff-Appellant; Skyline Industrial Service, Inc., Third-Party Defendant-Appellee; J.P. Cullen & Sons, Inc., Third-Party Defendant).
    Second District
    No. 2—90—0909-
    Opinion filed February 11, 1991.
    Rehearing denied March 19, 1991.

      William R. Power and Stephen J. Tasch, both of Pappas, Power & Marcus, of Chicago (Debra K. Marcus, of counsel), for appellant.
    Loretta M. Griffin, of O’Connor, Schiff & Myers, Michael D. Fisher, of Goldberg, Fohrman & Weisman, Ltd., and Kevin R. Sido, of Hinshaw & Culbertson, all of Chicago, and Douglas Pomatto, of Heyl, Royster, Voelker & Allen, of Peoria (Patrick D. Riley, of counsel), for appellee.
   PRESIDING JUSTICE REINHARD

delivered the opinion of the court:

Defendant and third-party plaintiff, Chrysler Corporation (Chrysler), brings this interlocutory appeal from an order of the circuit court of Boone County enjoining Chrysler from proceeding with an indemnity action against third-party defendant, Skyline Industrial Service, Inc. (Skyline), which it filed in the State of Michigan. The trial court determined that the Michigan action, which was filed after the Illinois court ruled that Chrysler’s indemnity actions would not lie in Illinois, represented an attempt by Chrysler to evade the prior jurisdiction of the circuit court.

At issue on appeal is whether the trial court properly enjoined Chrysler from proceeding with the out-of-State action.

The instant litigation commenced on July 2, 1987, with the filing of a complaint in the circuit court of Cook County by plaintiff, Richard Pfaff, an employee of Skyline, against Chrysler and J.S. Alberici Construction Company, Inc. (Alberici), seeking to recover for personal injuries sustained at Chrysler’s Belvidere, Illinois, plant. Count I of plaintiff’s complaint sought recovery under the Structural Work Act (Ill. Rev. Stat. 1987, ch. 48, par. 60 et seq.), and count II was based on allegations of negligence. On September 21, 1987, Chrysler filed a forum non conveniens motion seeking transfer of the cause to the circuit court of Boone County. The circuit court of Cook County granted Chrysler’s motion and ordered the cause transferred to the circuit court of Boone County.

On June 2, 1988, plaintiff filed his first amended complaint adding J.P. Cullen & Sons, Inc., and J.P. Cullen & Son Construction Corp. (Cullen) as defendants. By an agreed order entered August 25, 1988, plaintiff voluntarily dismissed its complaint insofar as it sought recovery against Alberici.

On October 14, 1988, Chrysler filed a third-party complaint against Skyline and Cullen. The first eight counts of the third-party complaint were against Skyline, with whom Chrysler had entered into a series of contracts for various construction and repair jobs. Count I sought recovery from Skyline under a theory of common-law indemnity; count II sought recovery pursuant to the Contribution Act (Ill. Rev. Stat. 1987, ch. 70, par. 302); and counts III, IV, and VI through IX were based on contractual indemnity provisions and sought to compel Skyline to indemnify Chrysler for any judgment against it and for the costs incurred in defending against plaintiff’s suit. Count VI specifically alleged that Skyline breached a contractual obligation to purchase liability insurance which would hold Chrysler harmless. Counts X through XVII were against Cullen. There was no count V in the third-party complaint.

On December 29, 1988, Skyline filed both its answer to count II of Chrysler’s third-party complaint and a motion to dismiss the remaining counts against it. Citing Thatcher v. Commonwealth Edison Co. (1988), 123 Ill. 2d 275, 527 N.E.2d 1261, Skyline moved to dismiss count I of the third-party complaint on the ground that common-law indemnity is no longer recognized in Illinois. Again citing Thatcher and the statutory prohibition against indemnity provisions in construction contracts (Ill. Rev. Stat. 1987, ch. 29, par. 61), Skyline also moved to dismiss counts III through IX on the basis that an action for either implied or contractual indemnification is not available in Illinois. Skyline additionally moved to dismiss the breach of contract portion of count VI on the basis that Chrysler waived any claim it had against Skyline for its alleged failure to purchase insurance. Chrysler responded by contending that Thatcher does not foreclose all common-law indemnity actions and that the contractual indemnity provisions are valid under Michigan law, which was to govern the contracts.

A hearing on Skyline’s motion to dismiss the implied and contractual indemnity provisions of Chrysler’s third-party complaint was held on June 29, 1989. The trial court first held that count I would be dismissed because Illinois does not recognize actions for common-law indemnity. The court then ruled that, pursuant to Donaldson v. Fluor Engineers, Inc. (1988), 169 Ill. App. 3d 759, 523 N.E.2d 1113, the contractual indemnity provisions would be governed by Illinois law rather than Michigan law. The court concluded that the remaining counts at issue, which were based on contractual indemnification provisions, were void under Illinois law and would be stricken. The court stated that only count VI, which dealt with an alleged breach of Skyline’s contractual obligation to purchase insurance, might be curable. The trial court entered an order dismissing count I and counts III through IX of the third-party complaint and allowing Chrysler 28 days to file an amended complaint. The court specified that its order of dismissal was without prejudice to refiling an amended complaint, but it ruled that the validity of the indemnity counts would not be relitigated.

On July 28, Chrysler filed an amended third-party complaint which again advanced eight counts against Skyline based on common-law indemnity, contractual indemnity and contribution. Skyline filed a motion to dismiss count I and counts III through IX of the amended third-party complaint because of Illinois’ policy against indemnity and indemnity agreements, the same basis upon which the trial court had earlier dismissed the corresponding counts of the original third-party complaint. Without responding to Skyline’s motion, Chrysler filed a second amended third-party complaint. Count I of the second amended third-party complaint sought contribution from Skyline, and count II sought contribution from Cullen. No indemnity counts were included in Chrysler’s second amended third-party complaint.

On May 17, 1990, Skyline filed a motion asking the court to enter an order pursuant to Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)) declaring that there was no just reason to delay enforcement or appeal of the court’s June 29, 1989, order dismissing the indemnity counts of Chrysler’s original third-party complaint. The motion set forth the following additional allegations regarding Chrysler’s conduct following the filing of its first amended third-party complaint:

“3. Subsequent to SKYLINE’S filing its Motion to Dismiss CHRYSLER’S Amended Third Party Complaint, SKYLINE’S attorneys were contacted by CHRYSLER’S attorneys who stated that they will be withdrawing CHRYSLER’s Amended Third Party Complaint and would be filing a Second Amended Third Party Complaint solely under the Illinois Contribution Act. ***
4. It is apparent that by CHRYSLER’S filing of a Second Amended Complaint that CHRYSLER has conceded that there is no basis for recovery under the previously stricken theories set forth in its original and first amended pleadings. ***
5. Despite this Court’s order and its own concession, on February 20, 1990, CHRYSLER filed a cause of action against SKYLINE in Wayne County Circuit Court, State of Michigan, docket No. 90 — 004448CK, seeking recovery against SKYLINE under the same causes of action that were previously rejected by this Court.”

Attached to the motion was a copy of the complaint filed by Chrysler in the Michigan action. Count I of that complaint alleged that Skyline breached various contractual duties to indemnify Chrysler, and count II .sought declaratory relief regarding the parties’ contractual rights and obligations.

Chrysler’s response to Skyline’s motion asserted that no Rule 304(a) finding could be made because the counts at issue were no longer before the court.

On June 21, 1990, Skyline filed an amended motion asking the court to enjoin Chrysler from proceeding outside of Boone County with any action related to the instant proceedings. Chrysler responded that the order dismissing the indemnity counts of its third-party complaint was not final and did not preclude Chrysler from seeking contractual relief against Skyline in a Michigan court. In a supplemental response to Skyline’s motion, Chrysler noted that Skyline had appeared before the Michigan court and filed a motion for summary judgment and/or dismissal of Chrysler’s action there because of the pendency of the Illinois action and under the doctrine of forum non conveniens. Chrysler’s motion noted that the Michigan court found it had jurisdiction over the action and denied Skyline’s motion.

A hearing on Skyline’s motion in the Boone County circuit court was held on July 19, 1990. At that hearing, counsel for Skyline argued that Chrysler was attempting to refile its indemnification counts in Michigan after having received an unfavorable ruling on the same issues in Illinois. Skyline characterized such action as “forum shopping.” Chrysler noted that the circuit court’s order of dismissal had granted Chrysler leave to amend its pleadings. Chrysler contended that its indemnity counts “were withdrawn or amended out of Boone County and filed in Michigan” and that there was “no contractual claim pending” before the Boone County court.

After listening to argument, the court issued an order enjoining Chrysler from proceeding with the Michigan action based on the court’s “inherent authority to protect its own proceedings and to protect litigants before it from multiple lawsuits on the same issues.” Chrysler now appeals from this order pursuant to Supreme Court Rule 307(a) (134 Ill. 2d R. 307(a)).

On appeal, Chrysler contends that the trial court should not have enjoined the subsequently filed Michigan action absent a showing of fraud, gross wrong or oppression. Skyline responds that, because Chrysler first invoked the jurisdiction of the Illinois courts voluntarily by filing its third-party action, it should be enjoined from selecting a different forum after having received an unfavorable ruling in Illinois.

We undertake our analysis agreeing with Skyline’s statement that, under the circumstances, the trial court’s dismissal of Chrysler’s indemnity claims constitutes a substantive ruling on the merits. We note that, although Chrysler’s entire third-party complaint was dismissed without prejudice to refiling an amended pleading, the trial court made it clear that the indemnity counts did not and could not state a cause of action and should be referenced in any new third-party complaint merely to preserve Chrysler’s right to appeal the ruling. (See Foxcroft Townhome Owners Association v. Hoffman Rosner Corp. (1983), 96 Ill. 2d 150, 153-54, 449 N.E.2d 125.) Chrysler’s failure to include the indemnity counts in its second amended third-party complaint potentially bars only its right to appeal the dismissal of these counts but does not alter the fact that the trial court ruled on the merits of these counts.

It is clear that an Illinois court has the power to restrain a person over whom it has jurisdiction from bringing a suit in a foreign State. (James v. Grand Trunk Western R.R. Co. (1958), 14 Ill. 2d 356, 368, 152 N.E.2d 858; Royal League v. Kavanagh (1908), 233 Ill. 175, 183, 84 N.E. 178.) Where such an injunction issues, it operates solely against the party and does not purport to direct or control the foreign court.

In Royal League v. Kavanagh (1908), 233 Ill. 175, 84 N.E. 178, the Royal League, a fraternal insurance society organized under Illinois law, filed an action in Illinois seeking to have its rights under an insurance contract with Kavanagh, an Illinois resident, determined in Illinois. The Royal League also asked the Illinois court to enjoin Kavanagh from bringing a similar action on the contract in the State of Missouri. (Kavanagh, 233 Ill. at 178-81, 84 N.E. at 179-80.) The supreme court determined that Kavanagh should not be enjoined from bringing the Missouri action:

“[T]he court will not restrain the prosecution of a suit in a foreign jurisdiction unless a clear equity is presented requiring the interposition of the court to prevent a manifest wrong and injustice. It is not enough that there may be reason to anticipate a difference of opinion between the two courts ***. [Citation.] It is not inequitable for a party to prosecute a legal demand against another in any forum that will take legal jurisdiction of the case, merely because that forum will afford him a better remedy than that of his domicile. To justify equitable interposition it must be made to appear that an equitable right will otherwise be denied the party seeking relief. [Citation.]
A person has the right to select such tribunal having jurisdiction as he chooses for the prosecution of his rights, and the court which first obtains jurisdiction will retain it. Such jurisdiction cannot be defeated because the defendant may prefer another tribunal in which he supposes the decision will be more favorable to him.” Kavanagh, 233 Ill. at 183-84, 84 N.E. at 181.

In Illinois Life Insurance Co. v. Prentiss (1917), 277 Ill. 383, 115 N.E. 554, Prentiss filed an action in the circuit court of Cook County to recover on an insurance policy issued by Illinois Life. Both parties were Illinois residents, and the circuit court of Cook County had full power to adjudicate all questions between them regarding the insurance policy. Prentiss also asked the court to enjoin Illinois Life from following through on its threat to file a similar action in the State of Missouri. (Prentiss, 277 Ill. at 384-85, 115 N.E. at 555.) Once again, the supreme court declined to enjoin the filing of the second suit in another State:

“[T]he prosecution of a suit in a foreign jurisdiction will not be restrained unless a clear equity is presented requiring the interposition of the court to prevent a manifest wrong and injustice. A party has the legal right to bring his action in any court which has jurisdiction of the subject matter and which can obtain jurisdiction of the parties. Should he begin two suits within the same jurisdiction, the pendency of the suit first brought may be pleaded in abatement of the later proceeding. This is not true of suits brought in different jurisdictions upon the same cause of action. The mere pendency of a suit in a sister State or in a court of the United States cannot be pleaded in abatement of a proceeding in a State court. While the doctrine announced in the Kavanagh case *** is now applied in every jurisdiction in the Union, this power is sparingly exercised, and it is only where it clearly appears that the prosecution of an action in a foreign State will result in a fraud, gross wrong or oppression, that a court of equity will interfere with the general right of a party to press his action in any jurisdiction which he may see fit and in as many of them as he chooses and restrain him from the prosecution of such a suit.
*** The bare fact that a suit on this policy has been begun and is now pending in this State, in the absence of equitable considerations, furnishes no ground to enjoin [Prentiss] from suing his claim in a foreign jurisdiction, although the cause of action is the same and arises out of the contract of insurance involved in the litigation in the circuit court of Cook county. [Citations.] Before the prosecution of the second suit in a foreign jurisdiction will be enjoined the propriety and necessity of confining the litigation to the court in which the first suit is instituted must appear. That it may be inconvenient for [Illinois Life] to go to a foreign State to try the suit, or that the maintenance of two suits will cause double litigation and added expense, is insufficient cause for an injunction against prosecuting the suit proposed to be brought in the State of Missouri and does not justify any interference by a court of equity.” (Emphasis added.) Prentiss, 277 Ill. at 387-88, 115 N.E. at 556-57.

Clearly, neither Kavanagh nor Prentiss established different criteria for the exercise of the State’s injunctive authority depending on whether the Illinois action was filed before or after the out-of-State action. However, Skyline contends that the supreme court did, in fact, adopt a dual standard model of analysis, dependent upon where the first action was filed, in James v. Grand Trunk Western R.R. Co. (1958), 14 Ill. 2d 356, 152 N.E.2d 858.

In James, the nonresident plaintiff instituted a wrongful death action in Illinois, based on a Michigan statute, against the defendant railroad. The railroad subsequently obtained an injunction from a Michigan court restraining the plaintiff from proceeding with the Illinois action. The plaintiff then sought a counterinjunction from the Illinois court to prevent the railroad from enforcing the Michigan injunction. (James, 14 Ill. 2d at 358, 152 N.E.2d at 860.) The supreme court recognized that the question presented was one of first impression in Illinois. James, 14 Ill. 2d at 361, 152 N.E.2d at 861.

The court began its analysis by noting that, although a court of equity has the power to restrain persons within its jurisdiction from instituting or proceeding with foreign actions, the exercise of such power has been deemed a matter of great delicacy. (James, 14 Ill. 2d at 363, 152 N.E.2d at 861.) In exploring the question of whether Illinois should recognize the Michigan injunction, the supreme court noted Illinois’ policy on the exercise of the injunctive power:

“Illinois has consistently followed the course of refusing to restrain the prosecution of a prior instituted action pending in a sister State unless a clear equity is presented requiring the interposition of the court to prevent a manifest wrong and injustice; and neither a difference of remedy afforded by the domicile and the forum nor mere inconvenience and expense of defending will constitute grounds for such an injunction. [Citations.] That course is based on the policy that after suits are commenced in one State, it is inconsistent with inter-State harmony if their prosecution be controlled by the courts of another State.” (James, 14 Ill. 2d at 363, 152 N.E.2d at 862.)

The court held that it would not recognize Michigan’s injunction of a previously instituted Illinois action which was still pending. James, 14 Ill. 2d at 363-64, 152 N.E.2d at 862-63.

The court then proceeded to address the separate question of whether it should issue a counterinjunction prohibiting the railroad from enforcing the Michigan injunction. The court concluded that “a court which first obtains jurisdiction of the merits of a cause should be permitted to retain it until the cause is finally adjudicated, without interference from the courts of other States.” (James, 14 Ill. 2d at 366, 152 N.E.2d at 864.) The court noted that, if the Michigan injunction were enforced against the plaintiff, she would be forced to dismiss the Illinois action or face “imprisonment and other coercive tactics.” (James, 14 Ill. 2d at 367, 152 N.E.2d at 864.) The supreme court held that a counterinjunction should issue against the railroad, stating that “the Illinois court should be entitled to the same respect for its jurisdiction that it accords the courts of other States, and in the absence of such respect, should be able to protect its jurisdiction from unjustifiable interference by the courts of other States.” James, 14 Ill. 2d at 371, 152 N.E.2d at 866.

Some appellate court cases following James have interpreted that case as establishing a dual standard of analysis for determining whether the State’s injunctive power should be exercised. These cases hold that, under James, an action previously filed in another State will not be enjoined absent convincing proof of fraud, gross wrong or oppression. Where the Illinois action is filed first, however, these cases hold that a lesser standard applies, and the subsequent out-of-State action will be enjoined if it appears to be oppressive, vexatious, annoying, or harassing, or if it unduly interferes with the progress of a prior instituted local action. Lowe v. Norfolk & Western Ry. Co. (1981), 96 Ill. App. 3d 637, 643-44, 421 N.E.2d 971; Block & Co. v. Storm Printing Co. (1976), 40 Ill. App. 3d 92, 95, 351 N.E.2d 271; see also National Hockey League v. Intermart, Inc. (1984), 127 Ill. App. 3d 1072, 1077, 470 N.E.2d 1.

The substantive difference between the two standards suggested by this line of cases, each of which is couched in general equitable terminology, is not apparent on its face. However, Lowe v. Norfolk & Western Ry. Co. (1981), 96 Ill. App. 3d 637, 421 N.E.2d 971, states that, where a complete remedy may be obtained in an action first filed in Illinois, the subsequent institution of foreign proceedings will be regarded as vexatious and harassing of the opposing party. (Lowe, 96 Ill. App. 3d at 645, 421 N.E.2d at 977; see also National Hockey League, 127 Ill. App. 3d at 1078, 470 N.E.2d at 5; Wells v. Wells (1976), 36 Ill. App. 3d 91, 93, 343 N.E.2d 215; Catherwood v. Hokanson (1916), 201 Ill. App. 462, 466.) Thus, under this rationale, the pendency of the Illinois action on the same issues involving the same parties would be sufficient to support an injunction against the foreign proceedings. This directly contradicts the statement in Prentiss that neither the inconvenience of defending a suit in another jurisdiction nor the added expense of double litigation is cause for an injunction against the out-of-State proceeding. Prentiss, 277 Ill. at 388, 115 N.E. at 556-57.

More fundamentally, a careful reading of James simply does not reveal a dual standard of analysis which would apply a lesser standard for issuance of an injunction where the Illinois action is filed first. In Kavanagh and Prentiss, two cases upon which James relied, the out-of-State action was not enjoined even though the Illinois action was, in fact, filed first. None of these three supreme court cases holds that a dual standard of analysis is to be utilized. Other appellate court cases appear to apply a unitary standard such as that in Kavanagh, although these cases do not acknowledge any disagreement with cases such as Lowe. See American Re-Insurance Co. v. MGIC Investment Corp. (1979), 73 Ill. App. 3d 316, 322-23, 391 N.E.2d 532, 537 (pendency of Illinois action is not sufficient reason to enjoin foreign action; each action may proceed without reference to the other); Chicago & Eastern R.R. Co. v. Reserve Insurance Co. (1978), 59 Ill. App. 3d 206, 209-10, 376 N.E.2d 1; Tabor & Co. v. McNall (1975), 30 Ill. App. 3d 593, 595-96, 333 N.E.2d 562.

We conclude that the appellate court decisions in Lowe, Block, and Wells incorrectly interpret the supreme court’s decision in James. The issue in James was not, as here, whether an Illinois court should enjoin a party before it from proceeding with duplicative litigation in another State. Instead, James dealt with the fundamentally different question of whether Illinois should issue a coimierinjunction to prevent another State from effectively destroying Illinois’ jurisdiction over a pending matter. Thus, an injunction was allowed in James only because the failure to do so would have prevented the Illinois court from hearing the case before it. The court in James emphasized that it “need not, and will not, countenance having its right to try cases *** determined by the courts of other States, through their injunctive process.” (Emphasis added.) James, 14 Ill. 2d at 372, 152 N.E.2d at 867.

James is not factually applicable here because the Michigan court has not attempted to enjoin any litigant from proceeding with the Illinois action. Here, as well as in American Re-Insurance, Chicago & Eastern R.R., and Tabor & Co., the other State does not threaten to frustrate Illinois’ jurisdiction, but merely to duplicate it. Lowe is also not directly on point, because in that case the foreign State issued a temporary restraining order against the Illinois plaintiffs. (Lowe, 96 Ill. App. 3d at 638, 421 N.E.2d at 973.) James did not disavow the holding in Prentiss that neither the inconvenience nor expense of duplicative litigation is sufficient cause to enjoin the foreign action. (Prentiss, 277 Ill. at 388, 115 N.E. at 556-57.) Prentiss specifically held that a party may “press his action in any jurisdiction which he may see fit and in as many of them as he chooses.” (Emphasis added.) (Prentiss, 277 Ill. at 387, 115 N.E. at 556.) A supreme court decision issued after James also applies the same unitary standard utilized in Prentiss. See Crawley v. Bauchens (1974), 57 Ill. 2d 360, 312 N.E.2d 236 (supreme court refused to enjoin foreign adoption proceedings despite Illinois’ continuing jurisdiction over custody matters).

We now turn to the question of whether, under the standard outlined above, Chrysler should have been enjoined from proceeding with its Michigan action. Such an injunction would be proper only if a clear equity is presented requiring the interposition of the court to prevent a manifest wrong and injustice (James, 14 Ill. 2d at 363, 152 N.E.2d at 862) or, in other words, if the foreign suit will result in a fraud, gross wrong, or oppression (Prentiss, 277 Ill. at 387, 115 N.E. at 556; Kavanagh, 233 Ill. at 183, 84 N.E. at 181-82).

The supreme court's decision in Prentiss presents a case almost directly on point with the question presented here: whether a party who files an action in Illinois should be enjoined from subsequently proceeding with a virtually identical action in another State during the pendency of the Illinois action. One difference between the instant case and Prentiss is that the action involved here is a third-party action, but that distinction is of little importance. The court in Prentiss held that, absent equitable considerations, the party filing the Illinois action should not be enjoined from subsequently filing an identical action in another State. Prentiss, 277 Ill. at 388-93, 115 N.E. at 557-58.

Most of what could conceivably be viewed as “equitable considerations” in this case were rejected in Prentiss as being insufficient to justify the issuance of an injunction. (Prentiss, 277 Ill. at 388, 115 N.E. at 556-57 (inconvenience of defending suit in a foreign State, double litigation and added expense are insufficient reasons to enjoin a litigant from proceeding in another State).) The only factor present here which was not present in Prentiss is the fact that Chrysler did not bring its Michigan action until it had received an unfavorable ruling from the Illinois court. This factor is of dubious importance, however, since Prentiss specifically allows a party to proceed in “as many ¡jurisdictions] as he chooses.” (Prentiss, 277 Ill. at 387, 115 N.E. at 556.) The court in Prentiss did not express any reservation about the fact that concurrent proceedings could presumably produce different rulings on the issues presented.

Furthermore, it is established that the likelihood of a different or more favorable remedy being obtained in the foreign jurisdiction is not cause for issuance of an injunction. (James, 14 Ill. 2d at 363, 152 N.E.2d at 862; Kavanagh, 233 Ill. at 183, 84 N.E. at 180-81.) We agree with Chrysler that there is no practical difference between filing an action in another jurisdiction in anticipation of receiving a more favorable ruling there and doing so after actually receiving a less favorable ruling in the Illinois proceeding.

This case being, in all essential elements, on point with Prentiss, we hold that the trial court erroneously enjoined Chrysler from proceeding with its contractual indemnity action in Michigan even though the circuit court of Boone county has held that such an action will not lie in Illinois.

We note that, even though our decision effectively allows the two actions to proceed in both jurisdictions concurrently, the parties will not face the possibility of conflicting judgments on the same cause of action. The full faith and credit clause of the United States Constitution (U.S. Const, art. IV, §1) generally requires every State to give a foreign judgment at least the res judicata effect which the judgment would be accorded in the State which rendered it. (Durfee v. Duke (1963), 375 U.S. 106, 109, 11 L. Ed. 2d 186, 190, 84 S. Ct. 242, 244.) Thus, the proceedings which first reach a final judgment may well control, under res judicata, the ultimate vitality of Chrysler’s indemnity claims.

Skyline also argues that Chrysler’s attempt to bring the indemnity action in Michigan rather than as part of the Illinois proceedings violates Illinois’ policy in favor of determining common issues in the same proceedings. Skyline refers us to the Illinois Supreme Court’s holding in Laue v. Leijheit (1984), 105 Ill. 2d 191, 473 N.E.2d 939, that contribution actions must be brought as part of the proceedings in the underlying tort action. Skyline argues that an analogous rationale applies to indemnity actions. However, this position is internally inconsistent, as it would have the court conclude that Illinois public policy requires indemnity actions to be brought as part of the underlying tort action even though indemnity actions are themselves generally against Illinois public policy. We reject this contention.

We conclude that the circuit court erred in enjoining Chrysler from proceeding with its Michigan action. We therefore reverse the order of injunction.

Reversed.

DUNN and BOWMAN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE DUNN

license: Public Domain

text:
    THE ILLINOIS STATE TOLL HIGHWAY AUTHORITY, Plaintiff-Appellant, v. WEST SUBURBAN BANK, as Trustee, et al., Defendants-Appellees.
    Second District
    No. 2—90—0235
    Opinion filed February 21, 1991.

      Roland W. Burris, Attorney General, of Springfield (Gregory M. O’Brien, Special Assistant Attorney General, of Chicago, of counsel), for appellant.
    Paul C. Miltonberger and Amy E. Smith, both of Katten, Muchin & Zavis, of Chicago, for appellees.
   JUSTICE DUNN

delivered the opinion of the court:

Plaintiff, Hlinois State Toll Highway Authority, appeals from a jury verdict awarding $81,850 to defendants, West Suburban Bank, as trustee (Bank), and Dan Gracious, in an eminent domain action. On appeal, plaintiff contends that the trial court erred by failing to bar or limit the testimony of defendants’ expert witness as a sanction for failure to comply with Supreme Court Rule 220 (134 Ill. 2d R. 220). Plaintiff further asserts that the trial court erroneously instructed the jury not to consider any evidence that Gracious illegally used adjoining State and county rights-of-way. We reverse and remand.

In February 1988, plaintiff filed its complaint for condemnation against defendants. Plaintiff sought fee simple title to a 500-square-foot portion of a 26,676-acre parcel located at the northwest comer of North Avenue and Swift Road in unincorporated Du Page County. Plaintiff also sought an easement on another portion of the parcel. The Bank held title to the parcel as land trustee, and Gracious held the beneficial interest in the land trust. Gracious operated a Firestone tire franchise on the parcel which serviced trucks, most of which were semitrailer trucks.

In July 1988, a quick-take hearing was held with regard to the subject property pursuant to section 7 — 103 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 7 — 103). Paul Davis, an appraiser who worked for William McCann and Associates, testified for defendants. Davis testified that, in his opinion, the damage to the remainder of the parcel resulting from the take was $57,000. After the hearing, the trial court entered an order vesting title to the portion of the parcel sought by plaintiff, granting the requested easement, and allowing $38,350 in preliminary just compensation.

Plaintiff served a set of interrogatories upon defendants on September 7, 1988. Plaintiff requested in the interrogatories that defendants identify each expert witness upon whose opinions they intended to rely at trial, state the expert’s opinion, and state the basis for each opinion. Trial was set for September 18, 1989. On September 15, 1989, plaintiff filed a motion to bar defendants from presenting any expert testimony at trial because defendants had not answered the September 1988 interrogatories and had not disclosed any expert witnesses to date. The trial court denied the motion. That same day, defendants filed answers to the interrogatories in which they identified Ken Polach, an appraiser with William McCann and Associates, as their expert witness. They subsequently informed plaintiff that Polach would testify that, in his opinion, the taking caused $137,000 in damage to the remainder.

On September 18, 1989, plaintiff presented a motion to bar Polach from testifying at trial because he was not timely disclosed as an expert witness pursuant to Supreme Court Rule 220(b) (134 Ill. 2d R. 220(b)). Plaintiff asserted during argument on the motion that it was prepared for the testimony of Davis rather than Polach. Defendants’ attorney stated that Davis was no longer working for McCann and Associates. The trial court granted the motion and continued the trial until September 20,1989, so defendants could attempt to find Davis.

On the day of trial, defendants disclosed that Davis would now testify that, in his opinion, the taking caused $137,000 in damage to the remainder. That same day before the trial began, plaintiff presented a motion to limit Davis to presenting valuation testimony consistent with his testimony at the quick-take hearing that the damage to the remainder totalled $57,000. The trial court denied the motion, and Davis opined at trial that the damage totalled $137,000. The jury awarded defendants $68,500 in damage to the remainder and a previously stipulated amount of $13,350 as the value of the property taken, for a total of $81,850. Plaintiff now appeals.

Plaintiff argues that Davis should not have been permitted to testify because he was not timely disclosed as an expert witness pursuant to Supreme Court Rule 220(b)(1) (134 Ill. 2d R. 220(b)(1)). The rule states in relevant part as follows:

“[T]he identity of an expert who is retained to render an opinion at trial on behalf of a party must be disclosed by that party either within 90 days after the substance of that 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. *** Failure 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.” 134 Ill. 2d R. 220(b)(1).

Defendants contend that by employing Davis as a witness at the quick-take proceeding, they disclosed him as an expert witness retained for use at trial for Rule 220 purposes. We disagree. In Oldenburg v. Hagemann (1991), 207 Ill. App. 3d 315, defendant argued that an expert had been disclosed for Rule 220 purposes by revealing his name in a supplemental response to interrogatories filed by a third-party defendant who was subsequently dismissed out of the case. Rejecting defendant’s argument, this court stated that the supplemental response would have only served to notify Oldenburg of Hagemann’s intention to call the expert as a witness in the third-party action. (Oldenburg, 207 Ill. App. 3d at 327.) Since Hagemann’s desire to call the expert as a witness against Oldenburg remained a surprise to Oldenburg and his attorney until it was specifically revealed a few days before trial, the supplemental response to interrogatories was not adequate disclosure under Rule 220(b). Oldenburg, 207 Ill. App. 3d at 327.

It is apparent from Oldenburg that, in order to comply with Rule 220(b)(1), a party must not only reveal the identity of an expert but must also specifically reveal that the expert has been retained to render an opinion in the proceeding in question. (See Oldenburg, 207 Ill. App. 3d at 327.) The fact that Davis testified at the quick-take proceeding did not necessarily mean that he had been or would be retained to testify as an expert at the ultimate eminent domain trial. The facts of this case certainly make that clear since defendants lost track of Davis after the quick-take hearing and had no intention to use him as a trial witness until the eve of trial. We therefore determine that Davis was not actually disclosed for Rule 220(bXl) purposes until September 1989.

Under Rule 220(b)(1), defendants were required to disclose that they had retained Davis as an expert to render an opinion at trial either within 90 days of learning the substance of his opinion or by the first pretrial conference, whichever is later. At the very latest, defendants first knew of Davis’ opinion regarding damage to the remainder of the subject parcel when he testified at the quick-take hearing in July 1988. Defendants did not properly disclose Davis as an expert witness within 90 days of that time, nor was he properly disclosed prior to the first pretrial conference in December 1988. Consequently, defendants violated Rule 220(b)(1).

This court has determined that, if a party fails properly to disclose an expert witness under Rule 220(b)(1), the witness must be barred from testifying unless a manifest injustice would result. (Phelps v. O’Malley (1987), 159 Ill. App. 3d 214, 224.) Under the circumstances of this case, it would not have been a manifest injustice to bar Davis from testifying, especially since defendants’ failure properly to disclose him resulted from their own lack of diligence in responding to plaintiff’s interrogatories or in otherwise complying with the rule. Accordingly, we conclude that the trial court should have barred Davis from testifying. Our conclusion makes it unnecessary to determine whether the trial court erred by refusing to limit the scope of Davis’ testimony pursuant to Supreme Court Rule 220(d) (134 Ill. 2d R. 220(d)). It may seem that plaintiff waived any argument that Davis should have been completely barred from testifying because plaintiff only sought to limit his testimony in the September 20 motion. Five days earlier, however, plaintiff unsuccessfully sought to have defendants barred from presenting any expert testimony because of Rule 220(b)(10) violations. Thus, there is no waiver.

Plaintiff asserts that, if this court determines that Davis should have been barred from testifying, as we have, there is no need to remand for a new trial, and this court should enter judgment in the amount of $18,900, representing the stipulated value of the property taken plus the $5,500 estimate of damage to the remainder provided in the testimony of plaintiff’s expert, Fred Tadrowski. As plaintiff points out, in Phelps, the court held that the trial court erred by permitting an appraiser to testify about the value of a lot when his testimony should have been barred under Rule 220(b)(1). (Phelps, 159 Ill. App. 3d at 223-24.) Instead of remanding in Phelps, this court entered judgment for breach of a contract to purchase a lot, basing the judgment amount upon the difference between the contract price and the amount for which the lot was later sold. 159 Ill. App. 3d at 226.

In Phelps, it appears that when the testimony of the expert witness which should have been barred was disregarded, there was undisputed evidence concerning the damage amount, and this court relied upon said evidence when it entered judgment. The same is not true in this case. Gerald Lindgren, a traffic engineer, testified that, because of the taking, Gracious would have to spend about $74,000 to implement a plan proposed by Lindgren for repaving and other work to enable Gracious to continue operating his business in the same manner as he had prior to the taking. The jury could have concluded from this testimony that the damage to the remainder was $74,000, not $5,500 as Tadrowski stated. Unlike the situation in Phelps, a new trial is therefore necessary. Davis shall be barred from testifying at the new trial.

The remaining issue is whether the trial court erred by instructing the jury not to consider any evidence that the Firestone dealership operated by Gracious may have illegally used the State and county rights-of-way adjoining the property. Because this issue may recur upon retrial, we will briefly address it.

Plaintiff argues that the evidence of illegal use was admissible and that the jury should have been permitted to consider it under section 7 — 119 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 7 — 119). That provision states in relevant part as follows with regard to eminent domain proceedings:

“Evidence is admissible as to *** any unsafe, unsanitary, substandard or other illegal condition, use or occupancy of the property.” Ill. Rev. Stat. 1989, ch. 110, par. 7 — 119.

Section 7 — 119 appears in article VII of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, pan 7 — 101 et seq.), which concerns eminent domain. In this context, it is apparent that the phrase “the property” refers to the subject property of the eminent domain proceeding, meaning either the property taken or the remainder of the parcel from which the taking took place. In the case at bar, section 7 — 119 would therefore only apply if there was evidence Gracious used his own property illegally before the take. Since there was no such evidence, section 7 — 119 is not applicable.

Plaintiff also argues that the trial court should have permitted the jury to consider the evidence in question because it was relevant to a determination of damage to the remainder. Damage to the remainder is measured by ascertaining the difference between the fair-market value of the land prior to the taking and the fair-market value as affected by the taking. (Illinois State Toll Highway Authority v. Heritage Standard Bank & Trust Co. (1990), 196 Ill. App. 3d 5, 13.) According to plaintiff, the evidence concerning illegal use of the adjoining rights-of-way tended to establish that the fair-market value of the land prior to the taking was lower than that suggested by defendants.

In its briefs, plaintiff considerably overstates the evidence concerning the allegedly illegal encroachments onto the right-of-way. During his testimony, Dan Gracious denied that semitrailer trucks were sometimes parked partially on the rights-of-way while being serviced, and there was no evidence to the contrary. Gerald Lindgren indicated during cross-examination that certain large semis known as WB-60’s would have to encroach on the rights-of-way prior to the taking when pulling into and out of the Firestone dealership. While the evidence showed that 80% of the dealership’s business was from semis, there was no evidence showing what percentage was from WB-60’s. Smaller semis were also serviced by the dealership. Therefore, the jury would have had to engage in sheer speculation to determine the extent, if any, to which loss of business from WB-60’s would have affected the fair-market value of the property prior to the taking.

Additionally, there is no evidence the State or county would have sought to halt the alleged encroachments if they were discovered. Even if they had, the evidence shows permits were available for use of State rights-of-way. Thus, it is not even apparent from the evidence presented that Gracious was in danger of losing business from the WB-60’s if the encroachments were discovered.

It is within the trial court’s discretion to reject evidence which is of little probative value because of its remoteness, uncertainty, or conjectural nature. (Hagerman v. National Food Stores, Inc. (1972), 5 Ill. App. 3d 439, 441.) In light of the evidence presented at trial, it was proper for the trial court to instruct the jurors not to consider any evidence of illegal encroachments by defendants onto the State and county rights-of-way. Failure to give the instruction would have invited the jury to speculate as to whether the alleged illegal encroachments affected the fair-market value of the land before the taking when the evidence failed to establish any such effect. Upon retrial, such evidence should not be considered by the jury unless the State shows a connection between the illegal encroachments and the fair-market value of the land prior to the taking.

For the above reasons, the judgment of the circuit court of Du Page County is reversed, and the cause is remanded for a new trial.

Reversed and remanded.

GEIGER and McLAREN, JJ., concur.


author: JUSTICE WOODWARD

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. 1984 BMW 528E AUTOMOBILE (Armando Villarreal, Intervenor-Appellee).
    Second District
    No. 2—90—0168
    Opinion filed February 19, 1991.

      Timothy K. Mahoney, of McNamee & Mahoney, Ltd., of Dundee, for appellant.
    Gary V. Johnson, State’s Attorney, of Geneva, and Robert J. Huguelet, Jr., of Orland Park (William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE WOODWARD

delivered the opinion of the court:

Intervenor, Armando Tito Villarreal, appeals the judgment of the circuit court ordering certain personal property forfeited under section 12(a)(4) of the Cannabis Control Act (Act) (Ill. Rev. Stat. 1989, ch. SG1^, par. 712(a)(4)). The issue on appeal is whether there was a rational relationship between the items seized and the alleged violation of the Act.

The State commenced these civil proceedings to forfeit certain property. Count I involved one black 1984 BMW 528E four-door automobile owned by Gilbert Rodriguez, who also intervened in this cause but did not file a notice of appeal. Count II involved currency in the amount of $1,812.50 seized from intervenor. Count III involved jewelry seized from the two men. Count IV involved a paging device seized from intervenor. The trial court also determined that a portable telephone was the property of a third person and ordered it returned. All the other items were ordered forfeited.

Intervenor filed a motion in which he sought the return of the following property: one pager; currency in the amount of $1,812.50; one black, man’s Citizen watch with 21-jewel automatic movement; a man’s 14-carat Geneve quartz watch with nugget bracelet at 88.78 grams; a man’s 14-carat, 20.50-millimeter nugget identification bracelet with “TITO” written in 49 diamonds of an average weight of .03 carats, or 1.47 carats total weight, with a frame made of 66 1.5-milli-meter garnets; and one 14-carat, 18-inch by 7-millimeter beveled herringbone chain with a box clasp at 41.41 grams. Intervenor also claimed seven men’s 14-carat gold rings, which included a nugget ring with the initial “A”; a matching nugget ring with the initial “V”; another matching nugget ring with 35 small jewels of a total weight of 1.40 carats; a nugget ring with a horseshoe and a pear diamond; a rectangular citrine ring; a ring with four clear stones; and another nugget ring. These items were found on his person on May 2, 1989. Intervenor was also found with a nugget ring with a jaguar emblem and a lady’s John Anthony 14-carat gold, double-link, black-dial wristwatch with quartz movement, found in intervenor’s pocket. These last two items were claimed by other intervenors for whom relief was denied. By stipulation of the parties, an appraisal was admitted into evidence stating that the value of all the jewelry was $20,915. Gilberto Rodriguez also had $4,260 worth of jewelry, including a watch, a 14-carat identification bracelet, a gold ring with “GILBERT” in 66 jewels and two horseshoe-with-horsehead 14-carat gold rings.

During the trial, officers of the Elgin police department testified that on May 2, 1989, at approximately 1 a.m., Gilberto Rodriguez was the driver and intervenor the front seat passenger of the BMW, which was parked at a convenience store in Elgin. Officer Piske saw two men outside the BMW yelling and pointing at it. When he pulled his squad car behind the BMW, it started to back up. The driver turned and saw the squad car, and the passenger turned, saw the squad car, and made a movement as to place something beneath his seat. Officer Hansen arrived, and the two occupants of the BMW exited the car at the officers’ request. Officer Christ found a .380 Llama handgun, loaded with a magazine of seven bullets, under the passenger’s seat, and the two occupants were arrested. Officer Hansen found a mobile telephone between the front seats, and she attempted to safeguard it by placing it in the trunk of the BMW, using a key from a key chain found in the car’s ignition. In the trunk, she saw a plastic bag containing a green, leafy substance. An evidence technician testified that he tested the substance and determined that it was 464.3 grams of a substance containing cannabis.

When the two occupants were arrested, they put their hands on their paging devices. When examined by the police, the pagers were deactivated. The devices did not beep during the time the occupants were detained at the scene or at the police station.

Over the intervenors’ objections, Officer Christ testified that intervener Villarreal said that he was a landscaper who had been unemployed for 6 to 12 months and that intervenor stated the same fact to the judge conducting a hearing regarding his bond.

A local citizen testified that on April 25, 1989, he sold the BMW to Rodriguez. Rodriguez paid $11,300 in cash: $6,000 in $100 bills, $500 in $50 bills and the balance with $20 bills. On May 2, Rodriguez called him to ask if the title to the car had been returned by the secured-party bank. Rodriguez then told him, “[Djon’t answer no questions,” if anyone should ask who bought the car.

Lieutenant Gopher testified as an expert in narcotics investigations. He had been employed by the Elgin police department for 20 years and had 10 years’ experience in narcotic investigations, during which he had participated in over 500 narcotics arrests and had spoken with narcotics dealers and users over 1,000 times. Answering a hypothetical question based on the above facts, Gopher stated his opinion was that the two occupants held possession of the cannabis with intent to deliver it. Gopher testified that the modus operandi of a typical drug dealer included the use of a pager. A dealer will give his pager number to potential customers; the customer dials the telephone number of the pager and transmits his own telephone number to the pager; the dealer reads the pager and calls that number, usually using a portable telephone so as to avoid residential surveillance, to arrange a transaction with the customer; the dealer then uses the car to drive to the customer and deliver the product. Gopher had encountered this modus operandi 15 to 20 times in the previous year and a half. Gopher also testified that drug dealers use large amounts of cash during their transactions. Drug dealers also need a loaded gun to protect the drugs and money and to protect themselves. Cannabis was selling at approximately $120 per ounce. Gopher testified that 465 grams of cannabis was more than normally used for personal use because a single cannabis cigarette contains less than one gram of cannabis.

Gopher stated that the value and amount of jewelry on the two occupants did not have any significance in forming his opinion of their intent. However, Gopher thought that since the parties were unemployed, the cash and jewelry were obtained through illegal means. Their possession of these items was “consistent with other drug dealers that I have arrested who were not working that had large amounts of money and jewelry.”

Following the close of the evidence, the intervenors moved for a directed finding, arguing, inter alia, that there was no evidence that the relevant objects were used as part of a violation of the Act. The intervenors did not present any evidence. The court stated that it thought the State had met its burden of proving that most of the property was subject to forfeiture; however, the court remained unconvinced regarding the jewelry and invited the parties to submit memoranda. The State filed a memorandum in which it argued the jewelry was subject to forfeiture under a net-worth theory as explained in the decision in United States v. Nelson (7th Cir. 1988), 851 F.2d 976. The intervenors did not respond, and the court entered a judgment finding that all the property, except the telephone which was stipulated to be the property of a third person, was subject to forfeiture; the court included the jewelry in the forfeited items, relying on Nelson. Intervenor Villarreal appeals.

On appeal, intervenor contends that there was insufficient evidence to tie him to a violation of the Act which would subject his property to forfeiture. The intervenors were accused of violating section 5(d) of the Act (Ill. Rev. Stat. 1989, ch. 561/2, par. 705(d)) for possessing more than 30 grams of a substance containing cannabis with intent to deliver it. Under section 12(a) of the Act, “[t]he following are subject to forfeiture: *** (4) all money, things of value, books, records, and research products and materials including formulas, microfilm, tapes, and data which are used, or intended for use, in violation of this Act.” (Ill. Rev. Stat. 1989, ch. 56V2, par. 712(a)(4).) Intervenor argues that there was no evidence to relate his property to the cannabis found in the trunk of the car owned by another.

Intervenor argues that he was not in possession of the cannabis and thus cannot have committed a violation of section 5 of the Act, which prohibits the knowing possession of cannabis with intent to deliver it. Intervenor was neither the driver nor owner of the car, and thus he argues that there was no evidence to show he had knowledge, control, or possession of or access to the cannabis in the trunk. The trial court made an explicit finding that both Rodriguez and intervenor were in possession of the cannabis with intent to deliver it.

Possession may be either actual or constructive, but the terms are not mutually exclusive; they form a continuum based on the relative immediacy of control. (People v. Gore (1983), 115 Ill. App. 3d 1054, 1057.) In Gore, the driver of a car was determined not to have been guilty beyond a reasonable doubt of knowing possession when a bag of cannabis was found under a passenger’s seat, and there were several passengers in the car. Knowledge could not be inferred merely from access shared by others in the area in which the drugs were discovered. (115 Ill. App. 3d at 1058.) To prove possession, there had to be some additional facts showing special or specific knowledge by the defendant. 115 Ill. App. 3d at 1059.

Actual, physical, personal possession is not required, as possession may be constructive. (People v. Birge (1985), 137 Ill. App. 3d 781, 790.) The element of knowledge is hardly ever susceptible of direct proof, but may be inferred by evidence of acts, declarations or conduct of the accused from which the inference may be fairly drawn that he knew of the existence of the narcotics at the place where they were found. (People v. Embry (1960), 20 Ill. 2d 331, 334.) A defendant’s possession may be joint with another. (Birge, 137 Ill. App. 3d at 790.) An inference of knowledge may arise if the amount of drugs found is large. 137 Ill. App. 3d at 790.

In this cause, the bag in the trunk of the BMW contained over 463 grams of cannabis, more than a reasonable amount for personal use, and nearly the amount of 578.8 grams found in People v. Schaefer (1985), 133 Ill. App. 3d 697, 702, in which the court held that amount exceeded the amount reasonable for personal use. Other evidence found which could be considered evidence of intent to deliver is the presence of drug paraphernalia such as a grinder and scale. (133 Ill. App. 3d at 703.) A third element that is properly viewed as consistent with an intent to deliver is the presence of weapons. (133 Ill. App. 3d at 703.) In this cause, intervenor and Rodriguez were each wearing a pager and sitting next to a mobile telephone, and these items are used to transact the drug trade. Intervenor was seen reaching under his seat, where a loaded handgun was discovered. In this cause, both men were carrying large amounts of cash, which Lieutenant Gopher testified was a tool of the illegal drug trade, and no one offered any other explanation for possession of such large amounts.

Based on these facts, the trial court could determine that the two men acted as a team to deliver cannabis, sharing the duties of steering the car, wielding the gun and answering telephone pages. Thus, a joint and knowing possession of the cannabis could reasonably be inferred. Whether possession is proved is a question for the trier of fact. (Birge, 137 Ill. App. 3d at 791.) Since this cause is a civil proceeding, the State had to prove its right of forfeiture by only a preponderance of the evidence. (People ex rel. Douglas v. One 1984 Toyota Supra Vehicle (1990), 202 Ill. App. 3d 797, 804; People v. Snyder (1977), 52 Ill. App. 3d 612, 613.) The judgment of the trial court will not be reversed unless its ruling is against the manifest weight of the evidence. (52 Ill. App. 3d at 614.) Based on the particular facts of this case, we uphold the trial court’s determination that a violation of the Act occurred subjecting property to forfeiture.

The next issue that must, be determined is whether the State met its burden of proving that the property was used or was intended for use in violation of the Act. The State contends that intervenor has waived the issue for his failure to raise it in his appellant’s brief. (See 134 Ill. 2d R. 341(e)(7).) The State notes that intervenor in his brief argues: “If there was no constructive possession of cannabis by ARMANDO VILLARREAL, there can be no rational relationship of the property taken from VILLARREAL to any unlawful purpose.” The State contends that since constructive possession was proved, intervenor’s argument must fail, and since he did not otherwise raise the usage issue in the brief, the issue is waived and the judgment must be affirmed. However, based on our reading of the brief, though it may be inartfully written, intervenor did raise the issue indirectly. The intervenor did write that “the plaintiff had the burden to prove that they [sic\ money was used or intended for use in violation of the Act *** and that the seized property bore a rationale relationship to an unlawful purpose, i.e., the possession with the intent to deliver the cannabis.” Thus, while the argument is not developed very well, especially in regard to the individual items, it is not waived.

The items relevant to this appeal are the pager, the $1,812.80 cash and the jewelry. These items are not contraband per se and therefore are not contraband unless used in an illegal manner. Their use must bear a rational relationship to an unlawful purpose before they are subject to forfeiture. (Snyder, 52 Ill. App. 3d at 614.) The pager did bear a rational relationship to the illegal trade of cannabis because it could be used to arrange the surreptitious sale of the drugs. The trial court explicitly found by a preponderance of the evidence that the two alleged offenders’ pagers were used in illegal drug activities. This finding is not manifestly erroneous.

Currency may also be forfeited under the Act. Section 12(a)(4) specifically mentions “money” used or intended for use in violation of the Act. For such “derivative” contraband to be forfeited, the State must show a rational relationship between the property and an unlawful purpose. (52 Ill. App. 3d at 614.) Cash can be the capital used and intended for use in marijuana transactions. (52 Ill. App. 3d at 615.) Cash is used in exchange for cannabis, to make change for customers’ large bills and to purchase more inventory. Intervenor has not offered any explanation for holding such a large amount of cash. While the trial court determined that the cash was subject to forfeiture because it was a fruit of the crime, there was sufficient evidence to find that the cash was used, or intended for use, in violation of section 5 of the Act. Thus, the trial court’s conclusion was not against the manifest weight of the evidence.

The forfeitability of the jewelry is a different question because section 12 does not specifically mention jewelry as being subject to forfeiture. The jewelry could only be subject to forfeiture if it was used in violation of the Act. We also note here that section 12 of the Act differs from section 505(a)(5) of the Controlled Substances Act (Ill. Rev. Stat. 1989, ch. 561/2, par. 1505(a)(5)), which authorizes the forfeiture of everything of value furnished in exchange for a substance in violation of the Controlled Substances Act and all proceeds traceable to such exchanges. In contrast, section 5 of the Cannabis Control Act authorizes the forfeiture of those items used to violate the Act. The Act does not authorize the forfeiture of receipts and proceeds.

The trial court found that, given the intervenor’s net worth based on his status as an unemployed landscaper, he could have only obtained the jewelry by illegal means. Thus, the trial court ruled that the jewelry was subject to forfeiture, citing United States v. Nelson (7th Cir. 1988), 851 F.2d 976. The State supports its argument on appeal with Nelson.

We do not believe that Nelson supports the State’s position. The Nelson court discussed forfeiture under sections 848 and 853 of the Federal Comprehensive Forfeiture Act (21 U.S.C.A. §§848, 853 (West Supp. 1990)). The Nelson court applied the net-worth theory to determine that a drug dealer must have obtained certain property with proceeds of an illegal operation because his net worth exceeded the amount he could accumulate by the legal means he evidenced; thus, his gold, silver and real estate could be ordered forfeited. However, the Nelson court premised its holding by stating that it was reviewing an in personam, not an in rem, proceeding. (851 F.2d at 981.) The defendant was personally liable for the punishment which included forfeiture of the proceeds of the profits of his drug-smuggling organization. By contrast, a proceeding under section 5 of our Act is an in rem proceeding (see, e.g., People v. Dugan (1985), 109 Ill. 2d 8, 17; Snyder, 52 Ill. App. 3d at 613) and does not deal with profits or proceeds but with items used in the violation of the Act. Thus, it was an error for the trial court to rely on Nelson and the net-worth theory to determine that the jewelry was subject to forfeiture.

There was no evidence presented in this cause that intervenor used the jewelry in furtherance of a violation of the Cannabis Control Act; thus, the jewelry was not subject to forfeiture. Any use of the jewelry in the cannabis trade was remote. The State contends that the jewelry was received in exchange from the sale of cannabis, but there is absolutely no evidence in the record to support that contention. (See People v. Gant (1986), 150 Ill. App. 3d 180, 191.) At most, intervenor may have purchased the jewelry in the past with profits of the drug operation, but section 12 does not apply to profits. Snyder dealt only with cash used as capital for use in the drug trade and did not mention profits. (52 Ill. App. 3d at 615.) Finally, the evidence was insufficient to show a nexus between the jewelry and the violation of the statute prohibiting possession of cannabis with the intent to deliver it. Lieutenant Gopher testified that the wearing of $20,000 of jewelry was not necessarily an indication of persons engaging in the drug trade. He did not suggest how jewelry might be used in the trade. At most, he testified that many drug dealers purchase jewelry with their illegal profits.

Thus, that part of the judgment disposing of the jewelry must be reversed. In the trial court, intervenor did not seek the return of the jaguar ring or the lady’s watch, and no other claimants have joined in this appeal. Therefore, those items cannot be returned when this cause is remanded.

For the above reasons, the judgment of the circuit court is affirmed in part and reversed in part. The cause is remanded for proceedings consistent with this opinion.

Affirmed in part; reversed in part and remanded.

NICKELS and INGLIS, JJ., concur.


author: JUSTICE STEIGMANN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARK D. BURCHAM, Defendant-Appellant.
    Fourth District
    No. 4—90—0158
    Opinion filed January 29, 1991.

      Daniel D. Yuhas and Gloria Ann Morris, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Lawrence R. Fichter, State’s Attorney, of Decatur (Kenneth R. Boyle, Robert J. Biderman, and Amy K. Schmidt, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE STEIGMANN

delivered the opinion of the court:

After a jury trial in Macon County, defendant, Mark D. Burcham, was convicted in absentia of burglary (Ill. Rev. Stat. 1989, ch. 38, par. 19 — 1). The jury was unable to reach a verdict on the second charge against defendant, possession of burglary tools, and the court declared a mistrial as to that charge. The court also held a sentencing hearing in absentia at which the State submitted certified copies of defendant’s convictions for armed robbery (committed in 1981) and burglary (committed in 1984) and requested that the court sentence defendant as a Class X offender pursuant to section 5 — 5—3(cX8) of the Unified Code of Corrections (Code) (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 5—3(c)(8)). The court agreed that defendant should be sentenced as a Class X offender, and he was sentenced to 12 years in prison.

Defendant’s sole argument on appeal is that his 12-year sentence violated his right to due process because he had been informed by the court that he was subject to a sentence of three to seven years in prison. We disagree and affirm.

On October 3, 1989, the State filed an information in Macon County charging defendant with burglary and possession of burglary tools. On October 4, 1989, defendant and Ms codefendant appeared in court in the custody of the sheriff and both defendants were told the following:

“You are each charged in Count I with the offense of Burglary wMch is a Class 2 Felony.
You are charged in Count II with the offense of Possession of
Burglary Tools which is a Class 4 Felony.
A Class 2 Felony carries a possible penitentiary term of a minimum of 3 years, a maximum of 7, and a period of mandatory supervised release or parole of 2 years.
Class 4 Felony carries a possible penitentiary term of a minimum of 1 year, a maximum of 3, and a period of mandatory supervised release or parole of 1 year.”

The court further explained to the defendants their right to a preliminary hearing and their right to be represented by counsel. After these admonitions, the court appointed the Macon County public defender to represent both defendants and then asked the prosecutor if he had a recommendation as to bond. The prosecutor replied as follows: “As to Mr. Burchman, Your Honor, the People recommend a bond in the sum of $5,000. He has prior convictions for Criminal Trespass to Land, Burglary, second conviction for Burglary, and Residential Burglary.” Neither the dates those offenses were committed nor the dates defendant was convicted were provided by the prosecutor. No clarification of the prosecutor’s representations was requested by defendant’s counsel, and no suggestions were made by anyone that the provisions of section 5 — 5— 3(cX8) of the Code might be applicable.

At defendant’s in absentia sentencing hearing, the State presented the court with certified copies of defendant’s convictions for armed robbery and burglary. The State then argued that because the requirements of section 5 — 5—3(cX8) of the Code were met, the court was required to sentence defendant as a Class X offender. The State noted that the sentencing range for a Class X offender is not less than 6 nor more than 30 years (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—1(a)(3)) and argued that a 14-year sentence would be appropriate because defendant had been sentenced to prison for felony convictions four separate times in the previous 12 years. The court agreed that defendant had to be sentenced as a Class X offender and sentenced him to 12 years in prison.

On appeal, defendant argues that he was denied his right to due process of law under the fourteenth amendment to the United States Constitution because he had been informed that if convicted of burglary he could be sentenced to imprisonment for three to seven years, yet he was subsequently sentenced as a Class X offender to 12 years. Defendant concedes that absent a guilty plea, the trial court was under no duty to advise him of his eligibility for an enhanced sentence. (See Ill. Rev. Stat. 1989, ch. 38, pars. 109-1(b), 113-1, 113-4(c); see also 107 Ill. 2d R. 402(a)(2).) However, defendant argues that once the trial court chose to inform defendant of the possible sentences, due process requires that the information be accurate and complete. Defendant concludes his argument as follows: “It was fundamentally unfair to inform the defendant that he faced 3 to 7 years imprisonment upon conviction, and later to sentence him to a Class X sentence of 12 years, especially where at the arraignment the State informed the court of the defendant’s prior convictions.” We are unpersuaded.

The first difficulty with defendant’s argument is that were we to accept it, we would be placing defendants who wilfully fail to appear at their sentencing hearings in a better position that those who do appear. This dichotomy is shown by noting that had defendant appeared at his sentencing hearing, he would have had no basis to argue against his being sentenced as a Class X offender to 12 years. As previously stated, Illinois law requires detailed admonitions of the minimum and maximum sentences defendants face only when they plead guilty; a defendant who pleads not guilty and who is convicted at trial may receive whatever sentence the trial court chooses to impose at the sentencing hearing as long as it is within accordance with the sentencing range provided in the Code for the offense of which the defendant stands convicted.

We use the term “wilfully” advisedly when describing a defendant who fails to appear for his trial or sentencing hearing and, as a result, is tried or sentenced in absentia pursuant to the provisions of section 115 — 4.1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1989, ch. 38, par. 115 — 4.1). Section 115 — 4.1(e) states that when such a defendant next appears before the court, “he must be granted a new trial or new sentencing hearing if the defendant can establish that his failure to appear in court was both without his fault and due to circumstances beyond his control.” (Ill. Rev. Stat. 1989, ch. 38, par. 115— 4.1(e).) Thus, we can presume a defendant’s absence to be wilful because, if it were not, the hearing required by subsection (e) would result in the sentencing hearing being vacated and defendant’s being sentenced anew. Only if a court has determined at a subsection (e) hearing that defendant’s failure to appear was not without his fault or not due to circumstances beyond his control — in other words, his failure to appear was “wilful” — would the earlier action of the court in trying or sentencing defendant in absentia be permitted to stand.

Defendant seems to be arguing some theory of “detrimental reliance” based upon the court’s representations as to what his sentencing range might be, suggesting that this “reliance” was a factor in defendant’s wilfully choosing not to appear at his sentencing hearing. We are not prepared to recognize such reliance as either reasonable or detrimental; nor are we prepared to place defendants who choose not to appear at their sentencing hearings in a better position than those who do appear. To hold otherwise would make a mockery of the criminal law.

Our decision is not affected by the State’s representations of defendant’s prior criminal record at a defendant’s first appearance before the court (here, the day after criminal charges were filed), when bail bond is being set. We are not going to require the State, at its peril, to know with precision defendant’s prior record and whether that record permits or requires the imposition of an enhanced sentence in the event of defendant’s conviction. We hold that any representations made by the State regarding a defendant’s record of convictions can be no support for the kind of claim now before us.

Defendant also makes the following argument before this court: “A defendant who is tried, convicted, and sentenced in absentia is particularly vulnerable to excesses by the State because he is not present to challenge the accuracy of the evidence or to inform his attorney that evidence is inaccurate.” We reject this argument and add that defendants who wilfully choose to disregard court orders to appear at trial or sentencing hearings are entitled to no succor or sympathy from the trial courts or this court. Simply put, if defendants are concerned about the “excesses of the State” or the accuracy of the evidence that might be presented at their sentencing hearings, it is a good idea for them to show up. The law provides the means for a defendant to be heard in order to fully protect his rights at the sentencing hearing, and his wilful failure to appear ought properly be viewed as a self-inflicted wound.

As this court wrote in the case of another defendant who was tried in absentia and complained on appeal about being deprived of some statutory benefits available to defendants who appear as directed, “The loss to the defendant of benefits otherwise available [such as challenging the accuracy of the evidence at the sentencing hearing or informing his attorney that the evidence is inaccurate] may be viewed as one additional cost of his wilful failure to appear for trial as directed.” People v. Emery (1989), 190 Ill. App. 3d 171, 174, 546 N.E.2d 658, 660.

For the reasons stated, the judgment of the circuit court imposing a 12-year sentence upon the defendant is affirmed.

Affirmed.

LUND, P.J., and SPITZ, J., concur.


text:
    RIVERTON AREA FIRE PROTECTION DISTRICT, Plaintiff and Counterdefendant-Appellee, v. RIVERTON VOLUNTEER FIRE DEPARTMENT, Defendant and Counterplaintiff-Appellant (Bob Robb et al., Plaintiffs; Riverton Volunteer Fire Department, Defendant-Appellant; Riverton Area Fire Protection District, Defendant-Appellee; The People ex rel. Neil Hartigan, Attorney General, Plaintiff-Appellee).
    Fourth District
    No. 4—90—0374
    Opinion filed February 13, 1991.
    Rehearing denied March 12, 1991.

      Richard A. Hollis, of Springfield, for appellant.
    Neil E Hartigan, Attorney General, of Springfield (Robert J. Ruiz, So-

      licitor General, and Ann Plunkett-Sheldon, Assistant Attorney General, of Chicago, of counsel), for appellee People ex rel. Hartigan.
    Scott, Beeman & Scott, P.C., of Springfield, for appellee Riverton Area Fire Protection District.
   JUSTICE STEIGMANN

delivered the opinion of the court:

Defendant, Riverton Volunteer Fire Department (Corporation), appeals from a summary judgment motion granted in favor of plaintiff, Riverton Area Fire Protection District (District). Because we find no genuine issue of material fact present on this record, we affirm.

I. Facts

The Corporation was founded in 1906 as a not-for-profit corporation and is currently subject to the General Not For Profit Corporation Act of 1986 (Ill. Rev. Stat. 1989, ch. 32, par. 101.01 et seq.). Its corporate purpose, as stated in its original articles of incorporation, was “to protect the lives and property in the village of Riverton against fire.”

From 1906 through 1975, the Corporation’s source of revenue was provided through contributions of money and property from citizens, area fund-raisers (such as chicken and spaghetti dinners), and tax revenues donated by Clearlake Township, Sangamon County, and the Villages of Clearlake, Spaulding, and Riverton. Residents outside these areas paid annual fees of $12 to $15 to receive fire protection from the Corporation. These revenues were used by the Corporation to purchase firetrucks, fire-fighting equipment, and real estate on which two firehouses were built. The sole purpose of raising these funds was to purchase assets necessary to provide fire protection services.

The District was created in June 1975 for the purpose of providing fire protection services within the district through taxation. (See Ill. Rev. Stat. 1989, ch. 1271/2, par. 21 et seq. (authorizing the creation of fire protection districts).) In November 1980, the Village of River-ton was annexed into the District. See Ill. Rev. Stat. 1989, ch. 1271/2, par. 23 (authorizing annexation).

Consistent with its purpose, the District entered into an agreement with the Corporation on March 31, 1981, for fire protection services. In essence, the contract provided that the Corporation would provide fire protection to the District in exchange for tax revenues raised by the District under its authority as a taxing body. The District agreed to transfer two fire trucks and some equipment to the Corporation as its agent, but to retain ownership. The second paragraph of the same clause stated as follows:

“With respect to fire trucks, engines, vehicles, and all other fire fighting equipment and personal property presently owned by DEPARTMENT [Corporation] and any trucks, engines, vehicles, fire fighting equipment and any other personal property hereinafter acquired by DEPARTMENT with its own funds or resources, unless previously disposed of, sold, exchanged, or otherwise utilized by DEPARTMENT, shall, in the event of termination or dissolution of the Riverton Volunteer Fire Department, be sold and title transferred to DISTRICT by DEPARTMENT at its then full market value to be determined by competent appraisal(s) of disinterested parties.”

The parties further agreed to meet annually for the purpose of creating a budget and that expenses would be handled as follows:

“10. The DEPARTMENT [Corporation] shall, on receipt of monies from the DISTRICT, make payment of all expenses hereinabove specified and furnish to the DISTRICT evidence of such payment of expenses from time to time so that the DISTRICT shall not be further liable for the payment of such costs or expenses.”

During the term of this agreement, the Corporation occasionally declined to provide the District with copies of bills or statements that showed its expenses despite the District’s requests to do so. Even though the District did not always have evidence of the Corporation’s expenses, the District continued to supply tax revenues to the Corporation during 1987 and 1988.

The District filed its initial complaint against the Corporation in August 1987 and amended it in September 1987, seeking specific performance of the contract, damages for breach of contract, and an equitable accounting of the funds received by the Corporation from the District. This latter claim was based on the allegation that the Corporation held these funds in trust for the public. The Corporation denied the allegations, contending that it was “not the fiduciary of the Plaintiff, but only an independent contractor,” and filed a counterclaim. In 1988, the District gave notice to the Corporation of its intent to terminate the agreement as allowed under the contract. The contract terminated on June 30, 1989.

On May 18, 1989, the Corporation amended its articles of incorporation to read as follows: “The corporation is organized exclusively for the charitable, educational, religious, or scientific purposes within the meaning of section 502(c)(3) of the Internal Revenue Code.”

On May 24, 1989, 40 residents of the fire protection district filed a complaint for injunctive relief against the Corporation, seeking to prevent the sale or conveyance of corporate assets that would significantly deprive them of fire protection. The residents asserted standing as third-party beneficiaries under the agreement and as beneficiaries of a resulting trust. The trial court consolidated these two actions and issued a temporary injunction on June 21, 1989, transferring possession of all fire-fighting equipment to the District until further order of the court.

On October 20, 1989, the Illinois Attorney General filed an action against the Corporation, pursuant to the Charitable Trust Act (Act) (Ill. Rev. Stat. 1989, ch. 14, par. 51 et seq.), seeking an accounting of charitable assets, in addition to declaratory, injunctive, and other equitable relief. This action was consolidated with the actions filed earlier by the District and the residents. The Attorney General alleged that the Corporation was a charitable trust and that the change in its corporate purpose required the imposition of a constructive trust.

The Attorney General filed a motion for summary judgment (Ill. Rev. Stat. 1989, ch. 110, pars. 2 — 1005(a), (b)) in March 1990, requesting the court to find that the Corporation held assets as a charitable trust and that those assets should be delivered to the District under the equitable doctrine of ey pres. After a hearing, the trial court granted the Attorney General’s motion, and the Corporation appeals from that summary judgment order.

II. Analysis

In reviewing the order for summary judgment, this court must consider all of the facts in the record and all of the grounds alleged by the parties in order to determine whether a genuine issue of material fact exists. (Seefeldt v. Millikin National Bank (1987), 154 Ill. App. 3d 715, 718, 506 N.E.2d 1052, 1055; Casteel v. Smith (1982), 109 Ill. App. 3d 1094, 1098, 441 N.E.2d 860, 863.) Summary judgment is proper when there is no factual determination to be made by the trier of fact and the movant is entitled to judgment as a matter of law. Joiner v. Benton Community Bank (1980), 82 Ill. 2d 40, 44, 411 N.E.2d 229, 231; Seefeldt, 154 Ill. App. 3d at 718, 506 N.E.2d at 1055.

On appeal, defendant claims that the trial court incorrectly applied the common law doctrine of cy pres to it, a not-for-profit corporation. In order to determine whether summary judgment was proper, we must review the trial court’s legal conclusions. Although the trial court made no specific findings, this court may assume that all issues were found in favor of the Attorney General’s motion for summary judgment. See Nemeth v. Banhalmi (1984), 125 Ill. App. 3d 938, 959, 466 N.E.2d 977, 992.

The Attorney General’s motion for summary judgment was premised upon two legal determinations: (1) the Corporation was a charitable corporation; and (2) the doctrine of ey pres was applicable.

1. Is the Corporation a charitable trust?

A charitable trust is “one which is for the public benefit.” (G. Bogert, Trusts and Trustees §369, at 65 (rev. 2d ed. 1977).) Under section 3 of the Act, a corporation may be considered a trustee of a charitable trust if it holds property “for any charitable purpose.” (Ill. Rev. Stat. 1989, ch. 14, par. 53.) “A purpose is charitable if its accomplishment is of such social interest to the community as to justify permitting the property to be devoted to the purpose in perpetuity.” Restatement (Second) of Trusts §368, Comment b, at 248 (1959), quoted in People ex rel. Scott v. George F. Harding Museum (1978), 58 Ill. App. 3d 408, 415, 374 N.E.2d 756, 761.

In Decatur Sports Foundation v. Department of Revenue (1988), 177 Ill. App. 3d 696, 532 N.E.2d 576, this court articulated a six-part test to determine whether a corporation is operating as a charitable organization for purposes of exemption from tax liability. In order to be considered a charitable organization, the following six criteria must be met: (1) an indefinite number of persons receive the benefits of the organization; (2) the organization has no capital, capital stock, or shareholders; (3) funds are derived mainly from private and public charity, and the funds are held in trust for the objects and purposes expressed in the organization’s charter; (4) the charity is dispensed to all who need and apply for it; (5) no obstacles appear to be placed in the way of those seeking the benefits; and (6) the primary use of the property is for charitable purposes. Decatur Sports, 177 Ill. App. 3d at 708, 532 N.E.2d at 585.

Fire protection can be considered a charitable purpose. (See G. Bogert, Trusts and Trustees §378, at 176 (rev. 2d ed. 1977) (stating that trusts for governmental or municipal purposes are charitable), and at 184-85 (stating that a trust “to supplement the existing police or fire departments of a municipality” is an example of a trust created for governmental benefits).) The record reflects that the sole, longstanding purpose of the Corporation has been to provide fire protection services for those persons from whom it solicited funds. We agree with the trial court that the Corporation is a charitable trust and that the assets held by the Corporation in trust may be used only to provide fire protection services for the citizens of the District.

The Corporation contends that the assets held by the Corporation are “it’s [sic] assets,” the disposition of which “is to be determined by Corporate officers and not the Court.” While this may be true for an individual or a for-profit corporation, it is not true for a not-for-profit corporation holding assets as trustee of a charitable trust.

The Corporation also argues that it cannot be a trust without a trust instrument. However, unlike trusts created expressly by intent or will, charitable trusts are remedial and created by statute. Traditional trust documents are not required.

2. Is the doctrine of cy pres applicable?

The Restatement (Second) of Trusts defines “cy pres” as follows:

“If property is given in trust to be applied to a particular charitable purpose, and it is or becomes impossible or impracticable or illegal to carry out the particular purpose, and if the settlor manifested a more general intention to devote the property to charitable purposes, the trust will not fail but the court will direct the application of the property to some charitable purpose which falls within the general charitable intention of the settlor.” (Restatement (Second) of Trusts §399, at 297 (1959), quoted in Graham Hospital Association v. Talley (1975), 29 Ill. App. 3d 190, 193, 329 N.E.2d 918, 921.)

Similarly, Professor Bogert has defined the limited application of the doctrine as follows:

“If the failed gift was to or for a charitable institution which never existed, or has ceased to exist, or is too vaguely described to be identified, *** the court will usually either deliver the corpus to another like institution in the same region, to hold outright or in trust, whether a successor, affiliate, parent, or unrelated institution.” (G. Bogert, Trusts and Trustees §442, at 599-600 (2d ed. 1964), quoted in In re Estate of Tomlinson (1976), 65 Ill. 2d 382, 389-90, 359 N.E.2d 109, 112.)

Therefore, the doctrine of cy pres applies when the charitable purpose becomes impossible, impracticable, or illegal, or when the designated trustee never existed, ceased to exist, or is too vaguely described to be identified.

Under the Act, the Attorney General may institute a proceeding to secure proper administration of a charitable trust. The relevant section of that Act states as follows:

“The Attorney General may institute appropriate proceedings to secure compliance with this Act and to secure the proper administration of any trust or other relationship to which this Act applies. Nothing in this Act confers on the Attorney General any additional powers to administer, supervise, or direct the administration of charitable trusts.” (Ill. Rev. Stat. 1989, ch. 14, par. 62.)

The Act also allows the Attorney General to establish rules and regulations, investigate trustees, and hold hearings pursuant to an investigation. Ill. Rev. Stat. 1989, ch. 14, pars. 55 through 60; see also People ex rel. Scott v. Silverstein (1980), 86 Ill. App. 3d 605, 609, 408 N.E.2d 243, 246-47 (directing trial court to hold a hearing on the appointment of a receiver).

When determining whether a genuine issue of material fact exists, the court must find such an issue supported by evidentiary facts revealed in the record. (Seefeldt, 154 Ill. App. 3d at 718, 506 N.E.2d at 1055, citing Harrington v. Chicago Sun-Times (1986), 150 Ill. App. 3d 797, 801, 502 N.E.2d 332, 334.) “In determining the genuineness of a fact, a court should ignore personal conclusions, opinions, and self-serving statements and consider only facts admissible in evidence under the rules of evidence.” Seefeldt, 154 Ill. App. 3d at 718, 506 N.E.2d at 1055, citing Malawy v. Richards Manufacturing Co. (1986), 150 Ill. App. 3d 549, 571, 501 N.E.2d 376, 390.

In his motion for summary judgment, the Attorney General asserted that because the Corporation changed its corporate purpose, it “no longer intends to use its charitable assets for the provision of emergency fire protection services” and planned to liquidate or convert those assets under its control to non-fire protection purposes. While these assertions were denied by the Corporation in its answer, the Corporation presented no “evidentiary facts” to contradict those presented by the Attorney General. See Local 165, International Brotherhood of Electrical Workers v. Bradley (1986), 149 Ill. App. 3d 193, 205, 499 N.E.2d 577, 585.

The Attorney General’s motion presented the following facts. First, the purpose of the Corporation was changed on May 18, 1989, and the newly stated purpose does not reflect a specific intent to provide fire protection services. Second, at the June 1989 hearing on defendant’s motion for temporary injunction, Pat Rogers, then a volunteer member of the Corporation, testified that he and other members of the Corporation’s executive board discussed selling corporate assets, but not necessarily to the highest bidder or to the District. At a hearing on the District’s petition for rule to show cause held in July 1989, Patsy Rader, secretary of the Corporation, testified to the Corporation’s intent to establish a volunteer fire department museum and library.

Testimony received by witnesses under oath and in the record may be considered in support of a motion for summary judgment. (Elsa Benson, Inc. v. Kalman Floor Co. (1989), 191 Ill. App. 3d 1016, 1023, 548 N.E.2d 485, 489 (considering testimony from a previous trial); see also Volling v. Amoco Chemical Corp. (1987), 159 Ill. App. 3d 424, 428, 512 N.E.2d 124, 126 (holding that testimony by an occurrence witness on the record may be considered for summary judgment).) Accordingly, the above testimony was before the court for its consideration of the Attorney General’s motion for summary judgment.

As additional support for his motion for summary judgment, the Attorney General included affidavits from several members of the Corporation, an affidavit from a past treasurer of the District, and copies of the District’s levying ordinances for the years 1976 through 1989. The affidavits of the Corporation members showed that from 1906 through 1975, the Corporation received its operating revenues from citizen donations, community fundraisers, and donations from Clearlake Township, Sangamon County, and the Villages of Clearlake, Spaulding, and Riverton. All the revenues received by the Corporation were used for operating expenses, and for the purchase of firefighting equipment and property on which two firehouses were built. The tax ordinances and the affidavit from the past treasurer of the District established that from 1975 through 1989, the Corporation’s operating budget was raised entirely as a result of tax levies collected by the District for fire protection services.

Our review of the record reveals no genuine issue of material fact as to whether the Corporation is able or willing to continue with the purpose for which trust funds were contributed, or whether the corporate changes have made the purpose impossible, impracticable, or illegal. While we agree with the Third District Appellate Court that “cy pres is an extraordinary power not to be used on every occasion where administration of the trust becomes difficult” (Graham Hospital, 29 Ill. App. 3d at 193, 329 N.E.2d at 921), the allegations of the Attorney General’s motions were not contradicted and were supported by proper evidentiary facts in the record. Therefore, summary judgment was proper.

Affirmed.

LUND and GREEN, JJ., concur.