author: JUSTICE LEWIS

text:
    THE COUNTY OF WABASH, Petitioner-Appellee, v. CLARENCE E. PARTEE et al., Respondents-Appellants.
    Fifth District
    No. 5—91—0739
    Opinion filed February 11,1993.

      Robert Michael Drone, of Conger & Elliott, P.C., of Carmi, and Clarence E. Partee, of Mt. Carmel, pro se, for appellants.
    Thomas E. Price, State’s Attorney, of Mt. Carmel (Norbert J. Goetten and Stephen E. Norris, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for appellee.
    David K. Frankland, of Albion, guardian ad litem.

   JUSTICE LEWIS

delivered the opinion of the court:

Respondents appeal from the trial court decision denying their motion to dismiss and traverse the complaint for condemnation filed by petitioner, Wabash County. Respondents do not appeal from the jury verdict finding compensation. For reasons stated below, we affirm the trial court’s decision.

The essential facts of this case begin with a former lawsuit involving the same piece of property. In the 1970’s the City of Mount Carmel sought to condemn land outside of its city limits for highway purposes, so that traffic going to Wabash Valley College could exit Highways 15 and 1 and travel directly to the college, thus bypassing the congested downtown area of Mount Carmel. The supreme court affirmed the trial court’s decision dismissing the complaint in the former suit. (See City of Mount Carmel v. Partee (1979), 74 Ill. 2d 371, 385 N.E.2d 687.) On November 21, 1988, the City of Mount Carmel and the County of Wabash entered into an intergovernmental agreement whereby the county and city exchanged jurisdiction of certain property in order that the county could proceed to complete a county highway. The property involved in the intergovernmental agreement is the same property that was involved in the former lawsuit between Mount Carmel and the respondents.

After entering into the agreement with Mount Carmel, Wabash County officials worked with the Department of Transportation to try to negotiate with Clarence Partee, one of the respondents herein, who possessed a life estate in the property. The owners of the remainder interest were not contacted by the county or the Department of Transportation with any inquiries or offers. The attempts to obtain the property through negotiation were not successful.

On July 11, 1989, the County of Wabash filed its complaint for condemnation, which alleged that the county was authorized to obtain fee simple title to the property through condemnation pursuant to section 5 — 801 of the Illinois Highway Code (Ill. Rev. Stat. 1989, ch. 121, par. 5 — 801). The complaint set forth a description of the property to be taken and the names of the property owners, both the life tenant and the remaindermen. The complaint also alleged that the county’s attempts to reach an agreement with the owner as to compensation had failed. The respondents filed their traverse and motion to dismiss on August 11, 1989, alleging several grounds for dismissal.

On December 18, 1989, the county adopted a resolution, which essentially stated that it was necessary for the county to complete Highway 1, which was the subject of the complaint for condemnation. The resolution further stated that the completion of Highway 1 would make travel within the county more direct and alleviate traffic congestion, that the county had been unable to reach an agreement with the owners as to compensation, that the condemnation of the property was necessary and in the public interest, and that the county was by the resolution ratifying and confirming all prior actions regarding condemnation of the subject property.

At the hearing on the traverse and motion to dismiss, the intergovernmental agreement and the December 18, 1989, resolution were admitted into evidence. The county also introduced evidence regarding the county’s attempts to purchase the property for the highway. The superintendent of highways testified that Highway 1 was incomplete for approximately 1,500 feet in the middle of the highway, at the point where the highway runs through the respondents’ property. He also testified that the highway dead-ends on the south side of respondents’ property, that the county was interested in completing the highway through respondents’ property, that the county had contemplated extending the highway for at least 20 years, and that no part of the strip of land the county sought to condemn was within the corporate limits of the city.

Clarence Partee, the owner of the life estate, testified that the city had first tried to purchase the property in 1973 but that the city would not agree to his offered price of over $12,000 per acre. He further testified that after the Illinois Supreme Court disposed of the city’s condemnation lawsuit, neither the city nor the county had attempted to try to acquire the land for approximately the next 10 years.

The trial court ruled that the county had established its prima facie burden of proof as to both the facts of public use and legal right to take the property by condemnation, that the county’s suit was not barred by res judicata or collateral estoppel, that necessity and use were sufficiently established, and that the amount of property to be condemned was not excessive. Subsequently, the court ruled on respondents’ motion to reconsider. The court found that the county had made a bona fide attempt to agree, that the City of Mount Carmel was not the real party in interest, and that the county had the statutory authority to add roads in this situation.

The first issue presented for review is whether the county is barred by the doctrine of res judicata from condemning the respondents’ property as a result of the supreme court’s ruling in City of Mount Carmel v. Partee (1979), 74 Ill. 2d 371, 385 N.E.2d 687. The supreme court held in that case that section 11 — 61—1 of the Illinois Municipal Code (Ill. Rev. Stat. 1975, ch. 24, par. 11— 61 — 1) allows cities to condemn property for streets in unincorporated areas if, and only if, the property to be taken is substantially contiguous and adjacent to the city. Since the property at issue was not substantially adjacent and contiguous to the incorporated parts of the city, the supreme court held that condemnation of the property could not be permitted under that section of the Municipal Code.

The doctrine of res judicata “provides that a final judgment rendered by a court of competent jurisdiction on the merits is conclusive as to the rights of the parties and their privies, and, as to them, constitutes an absolute bar to a subsequent action involving the same claim, demand, or cause of action.” (Best Coin-Op, Inc. v. Paul F. Ilg Supply Co. (1989), 189 Ill. App. 3d 638, 649, 545 N.E.2d 481, 488.) There are three essential elements of res judicata. First, the parties or their privies must be the same in the two suits. Second, the causes of action and issues involved in both suits must be the same. Third, there must have been a final judgment on the merits in the former suit to act as a bar to the latter suit. Best Coin-Op, Inc. v. Paul F. Ilg Supply Co., 189 Ill. App. 3d at 650, 545 N.E.2d at 489.

There is only one element of res judicata found in this case, that is, there was a final judgment on the merits in the Mount Carmel case. Respondents urge this court to find that the other elements of the doctrine are present, but we do not find respondents’ arguments convincing on any point.

Respondents contend that the county and city are in privity because of the intergovernmental contract between the parties and because both governmental units have citizens in common. If this argument were extrapolated, the State of Illinois would be bound by the original Mount Carmel case if the State made the college into a university and desired to connect the roads over the land in question. In fact, if respondents’ argument were accepted, then the United States could be estopped from completing the road, if common citizenship and intergovernmental agreements bound the parties to prior court rulings involving only one party. If this court accepted respondents’ extension and distortion of the concept of privity, the consequences could be horrendous, when one considers the number of intergovernmental agreements among cities, counties, States and the Federal government. It would be absurd to hold that governmental units forfeit their powers and assume all of the limitations of other governmental bodies simply because they enter into intergovernmental-cooperation agreements and have some citizenship in common.

The issue in the Mount Carmel case was whether the city had the right to condemn respondents’ land which was not contiguous to the city under the applicable section of the Illinois Municipal Code (Ill. Rev. Stat. 1975, ch. 24, par. 1 — 1—1 et seq.) and, particularly, section 11 — 61—1 (Ill. Rev. Stat. 1975, ch. 24, par. 11 — 61—1). The controlling issue in this lawsuit is whether the County of Wabash is authorized to condemn respondents’ land under section 5— 801 of the Illinois Highway Code (Ill. Rev. Stat. 1989, ch. 121, par. 5 — 801). The parties and the issues are simply not the same.

Res judicata is conclusive as to every issue raised in the first action and also as to any other issue which might have been raised. In order for a previous judgment to be conclusive, it must appear clearly and certainly that the identical and precise issue was decided in the first action. (County of Cook v. Illinois Local Labor Relations Board (1991), 214 Ill. App. 3d 979, 574 N.E.2d 754.) In the case at bar, 10 years have passed. Circumstances have changed. A distinct and separate government entity is seeking to condemn property under an entirely different legislative enactment. In City of Mount Carmel, the supreme court did not hold that the city could not condemn property for highway purposes, rather the court held that the city could not condemn property that was outside of its jurisdiction and which was not adjacent to the city limits. In this case, neither the jurisdiction of the city nor the location of the property in relation to the city is at issue. The property clearly lies within the jurisdiction of the county. The only commonality between this case and the Mount Carmel case is the respondents and the property that is in dispute. It is difficult to even imagine how the doctine of res judicata could apply in this case.

The respondents’ next argument is that the county lacked the necessary statutory authority to proceed with the condemnation. The respondents rightly argue that grants of authority to local governments under legislative enactments are to be strictly construed (this is known as Dillon’s Rule). (Connelly v. County of Clark (1973), 16 Ill. App. 3d 947, 307 N.E.2d 128.) However, the court in Connelly points out that “Dillon’s Rule of strictly construing legislative grants of authority to local governmental units has been abrogated by section 10 of Article VII of the 1970 Constitution when local governments voluntarily cooperate to share services on a partnership or joint venture basis.” (Connelly v. County of Clark, 16 Ill. App. 3d at 951, 307 N.E.2d at 131.) Specifically, section 10 of article VII of the 1970 Constitution provides that units of local government may contract with each other and with the State to obtain or share services and to exercise, combine or transfer any power or function if not otherwise prohibited by law. Ill. Const. 1970, art. VII, §10.

The constitutional grant to local governments of the authority to contract with each other is supported by the Intergovernmental Cooperation Act (Ill. Rev. Stat. 1989, ch. 127, par. 741 et seq.). Section 3 provides that local governmental units can exercise powers jointly to the extent not otherwise prohibited by law (Ill. Rev. Stat. 1989, ch. 127, par. 743), and section 5 provides that local governments may contract with each other to do anything that any of the local governments are authorized by law to do (Ill. Rev. Stat. 1989, ch. 127, par. 745).

The Illinois Constitution, when read together with the Intergovernmental Cooperation Act, gives the City of Mount Carmel and the County of Wabash the authority to enter into a cooperative agreement. The agreement is valid so long as either the city or the county has the right to undertake the task required under the agreement. Here, the county had the legal authority under the Illinois Highway Code to condemn property in the county for the purpose of providing highways for the public.

Respondents vehemently urge that the intergovernmental agreement between Mount Carmel and Wabash County is a subterfuge and that the city should not be allowed to do indirectly through the county what it cannot do on its own. The very purpose of section 10 of article VII of the 1970 Constitution is to allow a local government to do indirectly that which it cannot do directly, as long as it is otherwise lawful. To accept the respondents’ argument on this point would require the court to judicially rewrite both the Illinois Constitution and the statutes of the State of Illinois. That we cannot and will not do. Moreover, where local governments work together to accomplish a public task, such as finishing this highway, that cooperation is to be applauded rather than criticized. See City of Chicago v. Gorham (1980), 80 Ill. App. 3d 496, 400 N.E.2d 42.

Within the argument that the county has no legal authority to condemn the subject property, respondents argue that section 5— 102 of the Illinois Highway Code (Ill. Rev. Stat. 1989, ch. 121, par. 5 — 102) limits the county’s authority to add highways in these circumstances. The respondents contend that section 5 — 102 should be construed to limit the county to adding highways only if the extension connects principal municipalities or trading points. Respondents assert that Highway 1 will not connect municipalities or trading points, and, as a result, the county has no authority to condemn respondents’ land. There are four reasons why this argument fails.

First, the clear language of the statute does not require such a construction. The statute states that, “as nearly as possible,” added highways should connect principal municipalities and trading points within the county and between other counties. The language of the statute is not mandatory, but suggestive.

Second, when local governments cooperate, as the county and city did in this case, the courts are not to strictly construe the statutory grants of authority under which they act. Connelly v. County of Clark (1973), 16 Ill. App. 3d 947, 307 N.E.2d 128.

Third, the Illinois Highway Code must be read in its entirety and must not be construed piecemeal. Section 1 — 102 of the Highway Code sets forth the legislative intent. “[S]afe and efficient highway transportation is a matter of public concern. *** [I]t is intended to provide for integrated and systematic planning and orderly development in accordance with actual needs. *** [T]he elimination of congestion, accident reduction, and safety is an urgent problem and proper objective of highway legislation.” (Ill. Rev. Stat. 1989, ch. 121, par. 1 — 102.) The testimony showed that the purpose of the highway to be built was to connect Wabash Valley College directly with Highways 15 and 1 outside of Mount Carmel and thus avoid or bypass the present route through the congested downtown area of Mount Carmel. Elimination of congestion, accident reduction, and safety would all be achieved by the completion of County Highway 1.

Finally, section 5 — 102 concerns highways connecting municipalities or trading points. We believe that Wabash Valley College should be considered a trading point within the meaning of the statute. The college is engaged in the trade of imparting knowledge or an education for money. Surely the legislature did not intend to prohibit a county from building a highway to a school, college or university under section 5 — 102. Ill. Rev. Stat. 1989, ch. 121, par. 5— 102.

Respondents next argue that the county did not take the necessary action to obtain the land through condemnation. Specifically, they argue that the county should have filed its resolution stating the purpose and necessity of the condemnation before filing its complaint. The essence of their argument was stated by respondents in oral argument: that the law should require that a resolution must be filed before a complaint in condemnation is filed.

The law on this issue is clear. Where a condemning authority does not pass a specific resolution before filing its complaint in condemnation, that defect is not fatal to the condemnation suit if the evidence presented at the hearing on the motion to dismiss and traverse shows that the taking is necessary. State of Illinois Medical Center Comm’n v. United Church of the Medical Center (1986), 142 Ill. App. 3d 498, 491 N.E.2d 1327; see also People ex rel. Director of Finance v. YWCA (1981), 86 Ill. 2d 219, 427 N.E.2d 70.

Additionally, where the respondent files a motion to dismiss and traverse the condemnation complaint, the burden of proof as to necessity is on the petitioner, but that burden is only to establish a prima facie case. A prima facie case of necessity is established by introducing the resolution stating the public need, even if that resolution is passed after the condemnation complaint is filed. (State of Illinois Medical Center Comm’n v. United Church, 142 Ill. App. 3d 498, 491 N.E.2d 1327.) Here, the county entered into the intergovernmental agreement before filing the complaint, which agreement stated the purpose of the taking to be the completion of County Highway 1. After filing the complaint, but before the hearing on the motion to dismiss and traverse, the county passed a resolution which specifically defined the purpose and stated that the attempts to reach an agreement with the landowner had failed. (The issue of whether the negotiations regarding compensation were sufficient is discussed separately.) The evidence presented at the hearing on the motion to dismiss and traverse clearly showed that the taking was for a public purpose, specifically to complete Highway 1. The evidence presented was sufficient to establish a prima facie case of necessity.

Respondents’ next argument is that the City of Mount Carmel was a necessary party to the condemnation proceeding and that the complaint should have been dismissed since the city was not joined. Although respondents do not state in what capacity the city should have been joined, it appears that they mean that the city should have been joined as a party plaintiff. The statute governing joinder of plaintiffs is section 2 — 404 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 404).

“The rule is well established that all persons who are indispensable parties to an action must be joined or an order entered without jurisdiction over an indispensable party is null and void. [Citation.] However, the rule requiring joinder of indispensable parties is not applied when a party who is not before the court in person is so represented by others that his interest receives actual and efficient protection ***.” Schnuck Markets, Inc. v. Soffer (1991), 213 Ill. App. 3d 957, 982, 572 N.E.2d 1169, 1187.

Here, the city and the county were working together before the complaint was filed and have cooperated with each other throughout these proceedings. The City of Mount Carmel has already been prohibited from condemning respondents’ land, so what more could the court prohibit the city from doing? The respondents have emphasized in two lawsuits that the City of Mount Carmel has no right to condemn their land that lies outside of the city limits, and we agree. Even if this court could order the city to be made a party, any pleading that the city filed would be subject to dismissal as res judicata. The city’s interests, if any, are adequately protected, and no real issue of joinder exists.

Respondents urge this court to find that the city is a guarantor of the county’s undertaking and, as such, must be joined as an indispensable party. However, in order to find that the city is a guarantor, we must find that the city promised to compensate respondents for the land condemned in the event that the county failed to pay respondents for the land. (McCracken v. Olson Cos. (1986), 149 Ill. App. 3d 104, 500 N.E.2d 487.) Here, the city did not promise to pay for the land condemned under any circumstance. Rather, the city promised only to pay for certain costs and maintenance of the highway, and the city agreed to assume jurisdiction of the highway, if the land around the highway were fully incorporated into the city. The respondents were not a party to the intergovernmental agreement, nor is there anything in the agreement that indicates that the city and county intended to benefit respondents. The city cannot be called an indispensable party on the basis of a guarantee that does not exist.

The respondents’ final argument regarding joinder is that the city is the real beneficiary of the condemnation, because the property will ultimately belong to the city under the terms of the intergovernmental agreement. However, this argument does not consider the fact that the intergovernmental agreement states that the city is to assume jurisdiction of the highway only when and if that area is incorporated. Due to the fact that the incorporation may never take place, it is unclear how this court could find that the city benefits so directly that the case could not be resolved without the city being joined as a party.

The city’s involvement in this case is much more speculative than the State’s involvement in a similar factual situation in the case of City of Chicago v. Gorham (1980), 80 Ill. App. 3d 496, 400 N.E.2d 42. In Gorham, the City of Chicago sought to condemn land that was blighted and later resold the land to the State of Illinois for the State of Illinois Building. The State had agreed to purchase the property from the city after the condemnation. The court in Gorham held that where the condemning authority has the statutory power to condemn the property, and where the property is to be taken for a public use, it is immaterial that some other governmental entity other than the condemning authority will also benefit from the taking. (City of Chicago v. Gorham, 80 Ill. App. 3d at 498-99.) The facts of the case at bar are substantially similar.

Respondents cite no authority that requires all parties or governmental units that may benefit from a condemnation proceeding to be made a party. If this argument is carried to its logical conclusion, every city or village located near a proposed highway would have to be made a party in every condemnation proceeding for every portion of the new highway, because the-city or village may benefit from having the highway close by.

Respondents argue that the county did not make a bona fide attempt to reach an agreement with them prior to filing for condemnation. Respondents correctly state that it is a condition precedent to bringing a condemnation suit that the governmental body must first make a bona fide attempt to agree with the landowners as to proper compensation for the taking. Only if the attempts to agree fail can the condemnation action be brought. {Department of Trans portation v. Walker (1980), 80 Ill. App. 3d 1039, 400 N.E.2d 956.) Respondents argue that the county only offered to purchase a right-of-way interest, that the Department of Transportation did not have authority to enter into good-faith negotiations with the landowners, and that no offer was made for damage to the remainder. We do not find any of respondents’ arguments on these points convincing.

First, right-of-way is defined under section 2 — 217 in the Illinois Highway Code as “[t]he land, or interest therein, acquired for or devoted to a highway.” (Ill. Rev. Stat. 1989, ch. 121, par. 2— 217.) There simply is no distinction made between right-of-way and fee-simple interest under this statute. Respondents cite no authority for their contention that no valid offer was made due to the fact that the county only offered to purchase a right-of-way instead of a fee simple. Supreme Court Rule 341(e)(7) (134 Ill. 2d R. 341(e)(7)) requires the citation of authority by the respondents before consideration is merited. Britt v. Federal Land Bank Association (1987), 153 Ill. App. 3d 605, 505 N.E.2d 387.

Respondents contend that Larry Taylor, a realty specialist with the Department of Transportation, did not have the authority to negotiate with the landowners. Taylor told Clarence Partee, the life-estate owner and possessor of the real estate, that he was acting on behalf of the county. The evidence further showed, however, that Partee told Taylor in response to oral and written offers that he was not interested in selling the property. Ten days later the county superintendent of highways, Gordon Kirkman, sent a final letter of offer to Partee with the same offer as Taylor had made. No response was made to Kirkman’s letter even though a response was requested. Where no response is made to a final offer of compensation, the condemning authority is not required to do more before filing the condemnation complaint. Peoples Gas Light & Coke Co. v. Buckles (1962), 24 Ill. 2d 520, 182 N.E.2d 169.

Finally, respondents argue that the attempt to agree was not bona fide because the offer did not include any amount for the remainder of the property not condemned. However, where the actions of the landowner make it clear that offers to purchase would be futile, then no offer is necessary for the land or for the damage to the remainder of the property that is not condemned. (County Board of School Trustees v. Boram (1962), 26 Ill. 2d 167, 186 N.E.2d 275.) The facts of this case show that the county made an offer. The offer was not responded to. Therefore, the county was under no obligation to continue to negotiate further.

Respondents’ final argument is that the amount of property taken was excessive, in that only a right-of-way or easement was necessary but a fee-simple interest was condemned. That argument has no merit. The statute authorizing the condemnation controls. Where, as here, the controlling statute authorizes the condemning body to take a fee-simple interest, then a fee-simple interest can be condemned, even if a lesser interest would have satisfied the public use. Department of Transportation v. First Galesburg National Bank & Trust Co. (1990), 141 Ill. 2d 462, 566 N.E.2d 254.

For all of the reasons stated above, we affirm the judgment of the circuit court of Wabash County denying respondents’ motion to dismiss and traverse.

Affirmed.

GOLDENHERSH andRARICK, JJ., concur.


source: Caselaw Access Project

author: JUSTICE MAAG

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. JOHN A. BOOKOUT, Defendant-Appellee.
    Fifth District
    No. 5—91—0103
    Opinion filed February 3, 1993.

      Paul Hillis, Jr., State’s Attorney, of Salem (Kenneth R. Boyle, Stephen E. Norris, and Rebecca Sanders, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Daniel M. Kirwan and Stanley P. Stasiulis, both of State Appellate Defender’s Office, of Mt. Vernon, for appellee.
   JUSTICE MAAG

delivered the opinion of the court;

Defendant John A. Bookout was arrested and charged with one count of unlawful possession of a controlled substance (cocaine) and one count of unlawful possession of cannabis (Ill. Rev. Stat. 1989, ch.56x/2, pars. 1402(b), 704(a)). The defendant made a motion to quash his arrest and suppress the evidence seized along with his inculpatory statements. The trial court granted defendant’s motion. The State now appeals from the order suppressing evidence. We affirm.

At the hearing on defendant’s motion, the parties stipulated that the transcript of defendant’s preliminary hearing could serve as testimony in considering the motion. It was also stipulated that Michele Bassola had rented the hotel room in which defendant was arrested.

At the preliminary hearing, Officer Alan Rose of the Centralia police department testified that at approximately 3:26 a.m. on February 16, 1990, he was dispatched to the Bell Tower Inn (the Inn) in Centralia to investigate a report that juveniles were burglarizing cars on the parking lot. Officer Rose stated that upon completing his investigation, a Bell Tower Inn employee, Marsha Watkins, told him that defendant was currently throwing a party in a room at the hotel and that they “had had trouble with [defendant] *** trashing rooms in the past.” Ms. Watkins requested that Officer Rose “stand by” while she told defendant to leave. Officer Rose testified that he next spoke with the Inn’s manager, Norma Wessell, who also told him that defendant had “trashed rooms” in the past and asked him to “stand by” while she went to the room and asked defendant to leave. Ms. Wessell told Officer Rose that she was requesting his assistance because she “didn’t want to have a problem with [defendant].”

Officer Rose testified that he then notified the police station and Officer Ingersol was sent to assist him. After Ingersol arrived, both officers accompanied Ms. Wessell to room 114 and stood next to the door as she knocked. Rose stated that in response to the knock, someone in the room asked for the password, to which Ms. Wessell replied, “I don’t need a password, this is management.” Officer Rose then testified as follows:

“A. [Defendant] opened the door and we said ‘John, you’re going to have to leave’ and he had something in his hand and he turned and stuck it down the front of his pants.
Q. Was anyone else in the room?
A. Two other males and females.
Q. What happened then?
A. As he turned and stuck this unknown item down the front of his pants, the other people started running out the door of the room.
Q. What did you do when you saw [defendant] stuff something down the front of his pants?
A. It was unknown what it was, so I focused on where he put this and started asking what it was that he stuck down his pants.
* * *
Q. What happened then?
A. He didn’t want to answer at first. Then he stated ‘It’s just some pot.'
Q. Then what did you do?
A. I was trying to kind of push John to a secure place to start the patdown and to search him to obtain this pot.”

Officer Rose’s search of defendant’s person produced a 2.5-gram packet of "crack” cocaine and a zippered cloth bag containing a mirror, a “crack” spoon, and a vial with cocaine residue. Rose testified that while he searched defendant and placed him under arrest, Officer Ingersol searched the room, finding “crack” residue and cannabis.

On cross-examination, Rose admitted that the Inn’s manager had never asked the officers to enter room 114, nor had anyone ever asked Michele Bassola for permission to enter. Rose stated that he had no warrant for defendant’s arrest or any knowledge that defendant had committed an offense that evening. Officer Rose further testified on cross-examination as follows:

“Q. You immediately went in the room and searched him?
A. Well, no. I witnessed him put something down the front of his pants and he told me it was marijuana.
Q. Is that from where you were standing in the hallway or were you in the room when you saw that?
A. When I was standing outside the door, I seen [sic] him stick something in his pants and I was asking what it was he had in his pants, and I was focused in on watching him, asking him what it was. He replied ‘It’s just some pot’. At that time I started pushing him to a secure place and started the search.
* * *
Q. Where was Officer Ingersol while all this was going on?
A. We both seen [sic] him stick something down his front— the front of his pants, and we were both focused — as he stuck it down his pants, he turned. We were in the doorway. He stuck something down the front of his pants and turned, going toward the back of the room, and me [sic] and Officer Ingersol focused on what he stuck down his pants, and everybody else run [sic] out of the room and we didn’t have a chance to stop anybody else.”

On re-cross-examination, Officer Rose testified that he did not see the bag that he removed from inside defendant’s pants when he was coming through the door into the room. Rose stated that he never saw any weapons in room 114.

Following defendant’s arrest and transport to the police station, he was given the Miranda warnings and signed a written waiver. At approximately 5 a.m., defendant gave a statement indicating that he, Kayla Farthing and Michele Bassola had rented the hotel room in Bassola’s name and that they were later joined by two other persons who supplied the cocaine which they all used.

In granting defendant’s motion to quash arrest and suppress evidence, the trial court held that defendant had a reasonable expectation of privacy in the hotel room where he was a guest, that there was no probable cause to arrest defendant at the time of the police officer’s warrantless entry into the hotel room, and that there were no exigent circumstances at the time of the entry. The court made a specific finding of fact concerning when Officer Rose entered the hotel room, which states:

“It is unclear, based upon the stipulated evidence, whether Officer Rose of the Centralia Police Department entered Room 114 prior or subsequent to Defendant’s response to Rose’s question concerning what the Defendant had placed down his trousers, but it is unreasonable, on these facts, to believe Rose would have allowed the Defendant to hesitate to answer the question and retreat into the room without crossing the threshold to continue his observations and inquiry.”

The State alleges that the evidence of record does not support these findings of law and fact made by the trial court.

It is well established that a reviewing court will not disturb the trial court’s ruling on a motion to suppress unless that ruling is determined to be manifestly erroneous. (People v. Reynolds (1983), 94 Ill. 2d 160, 165, 445 N.E.2d 766, 769; People v. Industrial Salvage, Inc. (1985), 136 Ill. App. 3d 1068, 1071, 484 N.E.2d 322, 323.) It is the trial court’s function on a motion to suppress to determine the credibility of the witnesses and to resolve conflicts in the evidence (People v. Jones (1989), 184 Ill. App. 3d 412, 425, 541 N.E.2d 132, 141), and that court’s determination of factual matters will not be disturbed unless manifestly erroneous. People v. Free (1983), 94 Ill. 2d 378, 401, 447 N.E.2d 218, 229, cert. denied (1983), 464 U.S. 865, 78 L. Ed. 2d 175,104 S. Ct. 200.

In order to have standing to challenge a search, a defendant must demonstrate that his own fourth amendment rights have been violated. (People v. Walters (1989), 187 Ill. App. 3d 661, 665-66, 543 N.E.2d 508, 511.) To do so, a defendant must demonstrate that he has a reasonable expectation of privacy in the place searched or the property seized. (People v. Johnson (1986), 114 Ill. 2d 170, 191, 499 N.E.2d 1355, 1364, cert. denied (1987), 480 U.S. 951, 94 L. Ed. 2d 802, 107 S. Ct. 1618; Walters, 187 Ill. App. 3d at 666, 543 N.E.2d at 511.) The State asserts that at the time the police entered room 114 at the Inn, defendant did not have a reasonable expectation of privacy so as to be able to assert his fourth amendment rights in the premises.

It has been held that an unregistered overnight guest of the occupant of a hotel room had standing to challenge the search of that room, because this status established a reasonable expectation of privacy. (People v. Olson (1990), 198 Ill. App. 3d 675, 681-82, 556 N.E.2d 273, 277.) In reaching this conclusion, the Olson court relied on a United States Supreme Court case, Minnesota v. Olson (1990), 495 U.S. 91, 109 L. Ed. 2d 85, 110 S. Ct. 1684, which held that an overnight guest in another’s home had standing to challenge the legality of his arrest in that home, and on an Illinois Supreme Court decision, People v. Eichelberger (1982), 91 Ill. 2d 359, 438 N.E.2d 140, cert. denied (1982), 459 U.S. 1019, 74 L. Ed. 2d 514, 103 S. Ct. 383, which held that the fourth amendment applies equally to private residences and hotel rooms.

In the Illinois Olson case, the defendant was arrested in bed, apparently sleeping, at about 3:30 or 4 a.m. Here, defendant was a guest at a party in Michele Bassola’s room when he was arrested there at approximately 3:30 or 4 a.m. “[A] person can have a legally sufficient interest in a place other than his own home so that the Fourth Amendment protects him from unreasonable governmental intrusion into that place.” (Rakas v. Illinois (1978), 439 U.S. 128, 142, 58 L. Ed. 2d 387, 400, 99 S. Ct. 421, 430.) As in Olson, we believe defendant’s status as an invited guest in the hotel room gave him a legally sufficient interest and established a reasonable expectation of privacy in the premises for fourth amendment purposes.

The State alternatively argues that defendant did not have a reasonable expectation of privacy in room 114 because, prior to his arrest and search, he had been asked to leave the premises by the Inn’s management and was thus a trespasser. It is true that one who is wrongfully on the premises cannot invoke the privacy of the premises searched. (Jones v. United States (1960), 362 U.S. 257, 267, 4 L. Ed. 2d 697, 706, 80 S. Ct. 725, 734.) However, in both civil and criminal law, a person on leased premises at the express invitation of the tenant is not a trespasser. (Karow v. Student Inns, Inc. (1976), 43 Ill. App. 3d 878, 883, 357 N.E.2d 682, 687; see also People v. Rynberk (1980), 92 Ill. App. 3d 112, 115, 415 N.E.2d 1087, 1091.) There is no reason to believe that the law on this point differs with regard to the invitee of a hotel guest. (See 43A C.J.S. Inns, Hotels, and Eating Places §16 (1978) (a person who is not a guest has in general no legal right to enter or remain in an inn against the will of the innkeeper, but an invitee of a guest ordinarily may remain in the inn in the absence of reasonable restrictions or regulations to the contrary).) Therefore, defendant cannot be deemed to be a trespasser and wrongfully on the premises since he was present at the express request of a lawful guest. See Karow, 43 Ill. App. 3d at 883, 357 N.E .2d at 687.

Even if the Inn had sufficient grounds to lawfully eject defendant, he would not have been wrongfully on the premises as a trespasser unless he remained after receiving notice from the owner to depart. (See Ill. Rev. Stat. 1989, ch. 38, par. 21 — 3(a).) The record does not show that defendant had the opportunity to “remain” in the room any length of time after being told to leave. Therefore, under the facts of this case, we do not believe defendant was wrongfully on the premises so as to prevent him from asserting his privacy rights under the fourth amendment.

The State next contends that the trial court erred in finding that Officer Rose did not have probable cause to believe a crime was being committed in his presence prior to his entry into room 114. An offense is committed in an officer’s presence when knowledge of the commission of an offense is acquired through any of his senses. (Eichelberger, 91 Ill. 2d at 369, 438 N.E.2d at 144.) In Eichelberger, the Illinois Supreme Court held that in cases where an offense is committed in the presence of an officer, the officer may enter the premises without a warrant for the purpose of making a warrantless arrest. (91 Ill. 2d at 369, 438 N.E.2d at 145.) However, the Eichelberger court specifically distinguished the factual situation found in Johnson v. United States (1948), 333 U.S. 10, 92 L. Ed. 436, 68 S. Ct. 367, noting that the arresting officer in Johnson did not have probable cause to arrest the defendant until after his entry into the hotel room the defendant occupied: “In essence, the officer, prior to entry, did not possess the knowledge which justified a warrantless arrest of a person on the basis that an offense was committed in his presence.” Eichelberger, 91 Ill. 2d at 368-69, 438 N.E.2d at 144.

In the instant case, the trial court found, as in Johnson, that at the time of the officer’s entry into the hotel room, the officer did not have probable cause to arrest defendant. This conclusion by the trial court was based on its finding that Officer Rose had entered room 114 prior to the time defendant responded to the officer’s question concerning what defendant had placed down his pants. The State does not argue that defendant’s mere act of concealing something in his pants constituted probable cause but contends that “[h]e was arrested because, asked what he had concealed, the defendant volunteered he had some pot.” Therefore, the State has conceded that unless Officer Rose entered room 114 following defendant’s answer, there was no probable cause upon which to base a warrantless arrest of defendant.

The trial court found that, based upon the stipulated evidence, “it is unreasonable *** to believe Rose would have allowed the Defendant to hesitate to answer the question and retreat into the room without crossing the threshold to continue his observations and inquiry.” Several inconsistencies in Officer Rose’s testimony support the trial court’s finding.

First, if Rose and Officer Ingersol were “standing outside the door” or “in the doorway” at the time they saw defendant stick something down the front of his pants, it is unclear how the four other occupants of the hotel room could run unimpeded through or by the two officers so that they “didn’t have a chance to stop anybody else.” Second, Officer Rose testified that defendant “stuck something down the front of his pants and turned, going toward the back of the room,” and that Rose had “focused on where [defendant] put this.” However, Rose did not explain how, after defendant had turned and retreated into the room, he could have maintained such a view while remaining at the door. Third, although Rose stated that, when asked what he was concealing, defendant “didn’t want to answer at first” and had walked toward the back of the room, Rose also testified that when defendant did answer, Rose “started pushing” or “was trying to kind of push” defendant to a secure place to start the search. However, it would have been impossible for Rose to push defendant if, at the time defendant answered, Rose was across the room in the doorway as he claimed. Given these inconsistencies, we find that the trial court was not manifestly erroneous in concluding that Officer Rose had entered the hotel room “to continue his observations and inquiry,” prior to the time defendant responded to Rose’s question and probable cause to arrest was established.

Here, as in Johnson, where the officer did not have probable cause to arrest prior to the time he entered a hotel room in which defendant had a reasonable expectation of privacy, a warrantless entry could not be justified on the basis that an offense was being committed in the officer’s presence. (See Johnson, 333 U.S. at 15-16, 92 L. Ed. at 441, 68 S. Ct. at 369-70; Eichelberger, 91 Ill. 2d at 368-69, 438 N.E.2d at 144-45.) Having concluded that no probable cause existed for the warrantless entry into room 114, we need not reach the ultimate question addressed in Eiehelberger, i.e., whether the officers’ reasonable belief that a felony was being committed in their presence constituted an exigent circumstance which justified the warrantless entry into the hotel room for the purpose of making an arrest. (Eichelberger, 91 Ill. 2d at 369, 438 N.E.2d at 145.) The arrest being invalid, defendant’s fourth amendment rights were violated by the warrantless entry into room 114 and the evidence and statement obtained as a result of defendant’s arrest and search must be suppressed.

Accordingly, the order of the trial court is affirmed.

Affirmed.

WELCH and GOLDENHERSH, JJ., concur.

       Justice Harrison participated in oral argument. Justice Maag was later assigned to this case in substitution for Justice Harrison, and Justice Maag has read the briefs and listened to the audiotape of oral argument.


author: JUSTICE LYTTON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. MARVIN SELBY, Defendant-Appellee.
    Third District
    No. 3—92—0152
    Opinion filed February 18, 1993.

      William Poncin, State’s Attorney, of Macomb (John X. Breslin and Nancy Rink Carter, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Michael C. Jansz, of Herbolsheimer, Lannon, Henson, Duncan & Reagan, of Ottawa, for appellee.
   JUSTICE LYTTON

delivered the opinion of the court:

The defendant, Marvin Selby, was arrested for the offenses of driving under the influence of alcohol (DUI) (Ill. Rev. Stat. 1991, ch. 95x/2, par. 11 — 501) and reckless driving (Ill. Rev. Stat. 1991, ch. 95x/2, par. 11 — 503). Defendant took and failed a breath test and received notice that his license would be summarily suspended. Defendant filed a request for judicial review seeking rescission of the summary suspension (Ill. Rev. Stat. 1991, ch. 95x/2, par. 11 — 501.1). The trial court granted defendant’s motion on the basis that the arresting officer did not issue and serve the DUI citation prior to the breath test. The State appeals from the trial court’s order. We reverse and remand.

At the hearing on defendant’s petition to rescind, defendant Marvin Selby testified that he had been drinking on the evening of December 12-13, 1991, and that he was unsure how much he had consumed. After Selby’s car was stopped by Macomb city police officer Robert McMahon, he was taken to the Macomb police department. Later, Selby was taken to the McDonough County jail, where he was incarcerated for about six hours before being released on the morning of December 13,1991.

Selby testified that he was never told why he was arrested and the standard “Warning to Motorist” form was not read to him. Selby testified that he was not shown the traffic citations for reckless driving and DUI, or the “Warning to Motorist” form completed by Officer McMahon, until he was released from jail.

Officer McMahon testified that on the evening in question he received a radio transmission reporting a problem with a vehicle. McMahon located the car described on the radio and followed it. McMahon testified that he stopped the car at approximately 12:15 a.m. and thereafter administered field sobriety tests on the driver, Marvin Selby.

McMahon testified that after conducting the field sobriety tests he told Selby that he was under arrest for DUI, handcuffed Selby, and placed him in the back of the squad car. McMahon testified that he wrote out the traffic tickets at the scene and showed the defendant the DUI citation, but that the defendant did not receive his copies until the next morning when he posted bail. McMahon testified that he read the “Warning to Motorist” to Selby at 12:40 a.m., and then placed a copy of the written warning in Selby’s pocket.

The “Warning to Motorist” form, found within the common law record, certified that the Officer McMahon read the warning to the defendant at 12:40 a.m.

Also at the hearing, Macomb police officer Paul Kachinovas testified that, while at the scene of the stop, he heard Officer McMahon tell the defendant that he was under arrest for DUI. Kachinovas also testified that he saw McMahon put the defendant in the squad car, and he heard McMahon read the “Warning to Motorist” form to Selby at the Macomb police department.

At the conclusion of the evidence and after arguments of counsel, the trial court found that Officer McMahon’s testimony was lacking in credibility. Specifically, the trial court did not believe Officer McMahon’s testimony that he stopped the defendant’s car, completed the field sobriety tests, wrote out the traffic citations, drove to the Ma-comb police department, and read the “Warning to Motorist” all within 25 minutes. Thus, the trial judge rejected Officer McMahon’s testimony that he showed the defendant a copy of the DUI citation while they were in the squad car. In light of this court’s decision in People v. Mannon (1991), 217 Ill. App. 3d 381, 577 N.E.2d 532, the trial court ordered that the suspension of the defendant’s driving privileges be rescinded.

In Mannon, this court considered section 11 — 501.1 of the Illinois Vehicle Code. The statute provides:

“Any person who drives or is in actual physical control of a motor vehicle upon the public highways of this State shall be deemed to have given consent *** to a chemical test or tests of blood, breath, or urine *** if arrested, as evidenced by the issuance of a Uniform Traffic Ticket, for any offense as defined in Section 11 — 501 ***.” (Ill. Rev. Stat. 1991, ch. 951/2, par. 11— 501.1(a).)

In light of the statutory provision, we stated that the prerequisite for a valid arrest for DUI is the issuance and service of a written citation sufficiently apprising the defendant he is, or had been, charged with DUI. (Mannon, 217 Ill. App. 3d at 383.) Absent a valid arrest, the statutory summary suspension would not issue. Mannon, 217 Ill. App. 3d at 383.

Since Mannon, however, this court has had two other opportunities to review the issue of whether a DUI citation must be issued and served prior to the breath test.

In People v. Bahnfleth (1992), 233 Ill. App. 3d 289, 599 N.E.2d 16, we declined to expand the Mannon holding beyond the unique facts of that case. Specifically, in Mannon, the defendant was initially placed under arrest for other driving violations, and nothing in the facts indicated that the defendant was ever placed under arrest for DUI until after he refused to take the breath test. We determined that any language requiring the actual issuance and service of the DUI citation on the defendant, prior to the breath test, was dicta.

In Bahnfleth, the defendant was placed under arrest for DUI before the officer requested that the driver submit to a breath test. The formal traffic citation was not issued. We stated, “The issuance of a ticket is one way in which the fact of an arrest may be established. However, a ticket need not precede the officer’s request that a driver submit to tests.” (Bahnfleth, 233 Ill. App. 3d at 292.) The standard for determining if and when an arrest has occurred is whether a reasonable man would have concluded that he was not free to leave considering the surrounding circumstances. No formal declaration of arrest is necessary. Bahnfleth, 233 Ill. App. 3d at 292.

The issue of whether a DUI citation must be issued prior to the breath test was revisited by this court in People v. Scheperle (1992), 236 Ill. App. 3d 987, 603 N.E.2d 149, where we reiterated our holding in Bahnfleth, that “the issuance and service of a written citation is not a prerequisite for a valid arrest for DUI.” (Scheperle, 236 Ill. App. 3d at 989.) In other words, the fact that the ticket was not issued to the defendant until after he took the breath test is immaterial. Scheperle, 236 Ill. App. 3d at 989.

Accordingly, in the instant case, the trial court erred in granting defendant’s request for rescission of the summary suspension on the basis that the police failed to issue and serve a DUI citation prior to requesting that the defendant take a breath test. The significant issue under section 11 — 501.1(a) is not when the citation has been issued and served on the defendant but, rather, whether the defendant has been placed under arrest for DUI prior to the officer’s request that the driver submit to the appropriate test. The pivotal issue is whether a reasonable person would have concluded that he was not free to leave considering the surrounding circumstances. People v. Eddmonds (1984), 101 Ill. 2d 44, 61, 461 N.E.2d 347; Seheperle, 236 Ill. App. 3d at 989.

For the foregoing reasons, the judgment of the circuit court of McDonough County is reversed, and the cause is remanded for further proceedings consistent with this decision.

Reversed and remanded.

SLATER and BARRY, JJ., concur.


author: JUSTICE STOUDER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GEORGE BROOKS, Defendant-Appellant.
    Third District
    No. 3—91—0747
    Opinion filed February 5, 1993.

      John J. Hanlon, of State Appellate Defender’s Office, of Springfield, for appellant.
    Gary L. Spencer, State’s Attorney, of Morrison (John X. Breslin and Gary F. Gnidovec, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE STOUDER

delivered the opinion of the court:

Following a jury trial, the defendant, George Brooks, was found guilty of armed robbery (720 ILCS 5/18 — 2(a) (West 1992)) and sentenced to serve 10 years in prison.

Shortly after midnight on January, 27, 1991, the owners of a movie rental store in Rock Falls, Illinois, were robbed of the day’s proceeds by a man wielding a large knife. On April 25, 1991, the defendant was arrested and questioned by authorities. On appeal, the defendant contends his conviction must be reversed because the trial court erred in allowing in at his trial statements made to the police that day.

Prior to trial the defendant filed a motion to suppress statements he purportedly made in the presence of Officer Terry Anderson shortly after he was brought into the Rock Falls police department. At the hearing on the motion, Anderson testified he met with the defendant at approximately 10:15 a.m. He first advised the defendant of his rights pursuant to Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602. The defendant initialed and signed a “CONSTITUTIONAL RIGHTS AND WARNING” form.

According to Anderson, after he signed the form, the defendant stated he wanted to speak with his attorney. Anderson told the defendant their conversation was at an end and that he was now going to be booked. Anderson told the defendant he could call his attorney after he was booked or after he was taken to the Whiteside County jail. Anderson testified the defendant then indicated he wanted to continue talking with the officer. The defendant was told he would have to initiate further conversation.

Anderson then went into the hallway to obtain a witness. He saw Christine Beck, the animal control warden, and asked her to step into the interview room. In the presence of the defendant, Anderson explained to Beck what had transpired. The defendant agreed that he wanted to continue talking to Anderson. Beck’s testimony at the suppression hearing confirmed Anderson’s version of events.

The defendant then made a statement basically denying involvement. According to Anderson, the defendant asked whether armed robbery was a probationable offense. Anderson told him it was not; however, he indicated to the defendant that probation was possible for robbery. Anderson testified, “I said that I couldn’t promise him that that’s what would happen to him because that was the State’s Attorney’s call and they would make the decision if the charge was to be reduced or not, and I advised him that his cooperation in the matter was essential and would be considered but I couldn’t make that decision. I said that I would speak to the State’s Attorney’s office in regards to that matter but that I couldn’t make any promises in regards to that matter.”

Subsequently, Anderson testified, “I advised him that his cooperation was essential in this matter, and that if a reduced charge were to come about, that his cooperation in the matter would be essential. For the State’s Attorney to see that and make their determination, but I did not tell him that it would be reduced, no.” Anderson further testified, “I told him after I explained the charges to him that I would express his concerns and speak to the State’s Attorney’s office about the possibility, but there was no promises because that was up to the State’s Attorney’s office.”

Thereafter, the defendant made statements as to his involvement, although he continued to deny he committed the actual robbery.

The defendant testified at the suppression hearing that Anderson told him he better cooperate or he was “looking at some time.” He testified Anderson told him it was in his best interest to talk and that the charges could be “dropped down.” Anderson also indicated he had spoken with the State’s Attorney and “everything was go.” The defendant denied ever admitting involvement in the armed robbery.

At the conclusion of testimony, the trial court stated there was no need for argument and denied the motion to suppress.

On appeal, the defendant states he does not challenge the trial court’s determination as to credibility. However, he maintains that Anderson’s own testimony, in light of the other circumstances surrounding the statements, shows the statements were made involuntarily-

In determining whether a statement was voluntarily made, the court must ascertain whether the defendant’s will was overborne at the time he made the statement, or whether the statement was made freely and voluntarily without compulsion of any sort. (People v. Shaw (1989), 180 Ill. App. 3d 1091, 536 N.E.2d 849.) The totality of the circumstances surrounding the making of the statement must be considered in arriving at this determination. (People v. Martin (1984), 102 Ill. 2d 412, 466 N.E.2d 228.) These circumstances include such factors as whether the Miranda warnings were given, the presence of threats or physical coercion, whether the defendant was promised leniency, the length and intensity of the interrogation and the age, experience and physical condition of the defendant. (People v. Noe (1980), 86 Ill. App. 3d 762, 408 N.E.2d 483.) A confession must be proved voluntary by a preponderance of the evidence, and the trial court’s finding on the issue of voluntariness will not be reversed unless it is against the manifest weight of the evidence. People v. Veal (1986), 149 Ill. App. 3d 619, 500 N.E.2d 1014.

Here, we find Anderson’s comments to the defendant did not constitute promises of leniency. The evidence shows Anderson made no promises to the defendant of sufficient significance to render the statements involuntary. According to Anderson, he made clear to the defendant he could not promise anything and that all decisions, vis-avis charges, were up to the State’s Attorney.

At the time, the defendant was 18 years of age, of average intelligence and was familiar with the criminal justice system. He understood his rights and immediately expressed his desire to speak with his attorney. Understanding this right, he could knowingly and voluntarily choose to continue talking to the authorities without the assistance of counsel. Viewing the totality of the circumstances, we find the trial court’s determination that the defendant’s statements were voluntarily made is not against the manifest weight of the evidence.

The defendant further contends his conviction must be reversed and the cause remanded for a new trial based on the improper remarks of the State’s Attorney during closing arguments.

At trial, Ray Tarbill testified that in June of 1991, he was in the Whiteside County jail serving a sentence for DUI and driving while his license of revoked. While sharing a cell, the defendant told Tarbill in detail how he committed the armed robbery.

During closing arguments the State’s Attorney stated, “I trust Ray Tarbill. I think his testimony was trustworthy. I think the — as you listened to his testimony you can find that it’s his — .” Defense counsel objected to the State’s Attorney giving his personal opinion about the trustworthiness of a witness. The court sustained the objection and instructed the jury to disregard the prosecutor’s opinion. The court admonished the jurors that they were to determine guilt or innocence based on their observations.

Although a prosecutor may express an opinion if it is based on the record (People v. Johnson (1987), 119 Ill. 2d 119, 518 N.E.2d 100), he may not state his personal opinion regarding the veracity of a witness or vouch for a witness’ credibility. (People v. Roach (1991), 213 Ill. App. 3d 119, 571 N.E.2d 515.) Although the prejudicial effect of an improper argument cannot always be erased from the minds of the jurors by an admonishment from the court, the act of promptly sustaining the objection and instructing the jury to disregard such argument has usually been viewed as sufficient to cure any prejudice. People v. Baptist (1979), 76 Ill. 2d 19, 389 N.E.2d 1200.

In the instant case, defense counsel promptly objected to the improper argument and the trial court just as promptly sustained the objection and instructed the jury to disregard the prosecutor’s expression of personal opinion. Although the State’s Attorney’s argument was improper, we find any prejudice was cured by the court’s action and therefore no reversible error occurred.

Along with sentencing the defendant to 10 years in prison, the trial court ordered the defendant to pay restitution within two years of his release from the Department of Corrections. On appeal, the defendant argues the order of restitution must be reversed because it violates the provisions of the restitution statute (730 ILCS 5/5 — 5—6 (West 1992)).

Specifically, the defendant argues the order violates the statutory provision providing the court shall fix a period of time not in excess of five years within which the payment of restitution is to be made in full. (730 ILCS 5/5 — 5—6(f) (West 1992).) The defendant contends that even if he were to earn all available good time credit on his sentence he would not be released for five years; therefore, any payments made on his release would be beyond the five-year limit of the statute. In other words, the defendant argues the five-year period commences with the order of restitution.

Recently, we rejected this argument in People v. Chapin (1992), 233 Ill. App. 3d 28, 597 N.E.2d 1250, finding we did not read section 5 — 5—6(f) of the Unified Code of Corrections (Ill. Rev. Stat. 1991, ch. 38, par. 1005 — 5—6(f)) as requiring restitution be made within five years of the date of the restitution order. Instead, we interpreted it to mean that payment must be made within a five-year period. Therefore, we find no error in the trial court’s order of restitution.

The defendant contends and the State concedes that the cause must be remanded for the purpose of filing an amended mittimus to reflect the exact number of days credited toward the defendant’s sentence. However, there is a disagreement as to the number of days to be credited. The mittimus states the defendant is to receive credit for the “actual days served in the Whiteside County Jail.”

The defendant was held from April 25, 1991, until his transfer to the Department of Corrections on September 26, 1991; a period of 155 days. The defendant maintains he is entitled to credit for the entire 155-day period. The record shows that on May 3, 1991, the defendant was found in contempt during a hearing on his motion for reduction of bond. The trial court sentenced the defendant to serve 90 days for his contemptuous behavior. The State argues the defendant is not entitled to have this 90 days credited toward his 10-year sentence.

We note this issue was not raised before the trial court and was therefore not addressed. In People v. Brents (1983), 115 Ill. App. 3d 717, 450 N.E.2d 910, in a factually similar context, we held that trial judges had the discretionary authority to give or deny credit as justice required under the circumstances. These types of decisions are best left to the sound discretion of the trial court. Therefore, we remand the cause for further proceedings to determine the appropriate number of days to be credited and to amend the mittimus accordingly.

For the foregoing reasons, the judgment of the circuit court of Whiteside County as to the defendant’s conviction and sentence is affirmed; however, the mittimus is vacated and the cause remanded for further proceedings on the issue of credit due the defendant for time spent in the Whiteside County jail and to amend the mittimus accordingly.

Affirmed; mittimus vacated and the cause remanded.

McCUSKEY, P.J., and BARRY, J., concur.


text:
    FARMERS STATE BANK OF HOFFMAN, Plaintiff-Appellant, v. LLOYD SCHULTE et al., Defendants-Appellees.
    Fifth District
    No. 5—91—0440
    Opinion filed February 11,1993.

      Sharon S. Costa, of Mt. Vernon, for appellant.
    George C. Lackey, of Lackey & Lackey, P.C., of Centraba, for appellees.
   JUSTICE LEWIS

delivered the opinion of the court:

Plaintiff sued defendants to collect on a promissory note signed by defendants. The trial court granted a directed verdict in defendants’ favor, and plaintiff appeals. We reverse and remand.

Jodi Erlinger and her husband, Brad Erlinger, sought to purchase a business known as the Hoffman House from Brad’s parents. The purchase price of the business was $53,000, but after other loans of Brad and Jodi were consolidated with this loan, the total loan amount became $70,500. This loan, as evidenced by “note #1,” indicated that security for the loan was a mortgage on Hoffman House. There was also typed at the very bottom of the note:

“Also the following titles:
1986 Harley-Davidson Motorcycle #1HD4CAM18GY116008
1979 Datsun B 210 Coupe #KHLB310007830
1979 Ford Mustang #9FO3T300457
UCC-1 filed on all inventory, equipment, fixtures and machinery of Hoffman House.”

The loan arrangement was set up in a somewhat peculiar manner. Note No. 1 was a promissory note for $33,000, but it stated that the total loan amount was $70,500. There were three promissory notes for $12,500 each signed respectively as follows: Brad, Jodi, and Helen Erlinger as borrowers; Brad, Jodi, and Jim and Freída Erlinger as borrowers; and Brad and Jodi Erlinger, and Lloyd and Eva Schulte, defendants in this cause, as borrowers. Each of these notes indicated that payment was to be made “as per note, number one, dated 3-17-87.” These notes made no other reference to note No. 1 and did not list any security for the loans, except for a paragraph that indicated that the note was secured by a mortgage dated the same date as the note.

Note No. 1 indicated that the payment schedule of $692.06 per month was set up over 35 months with a “balloon payment” of $67,422.72. Since the note listed the yearly rate of interest to be 10.5% and a balance owed at the end of the note of $67,422.72, it is obvious that the monthly payment included principal and interest for all of the notes for the entire $70,500 and not just the $33,000 face amount of note No. 1.

All of the parties agreed that there was intended to be a security interest in the equipment, inventory, furniture and fixtures of the Hoffman House. It is also undisputed that this additional security interest was never obtained, even though a financing statement, UCC-1, was filed with the county clerk.

Facts that are in dispute include the circumstances pertaining to defendants signing of one of the promissory notes for $12,500. Paul Finke, executive vice-president of plaintiff bank, testified that he had met with defendants at the bank and had a lengthy discussion regarding the note. He testified that he told defendants that the amount of the loan on note No. 1 was $70,500. He also stated that he told them, and thought defendants understood, that there was a chance the business would not make it, and if so, they would be liable to pay $12,500 plus expenses.

Finke further testified contrary to the bank’s position and the plain meaning of the notes that he told defendants that they would only have to pay if the property was sold and there was a deficiency. He told defendants that security for the loan consisted of the real estate, inventory, fixtures, and vehicles, and two other notes for $12,500.

Defendants testified that they first became aware of the transaction when Brad, Jodi, and Brad’s parents came to defendants’ home and Brad and Jodi told them that they were interested in buying the Hoffman House. Brad and Jodi told defendants that the purchase price of the business was $53,000, and that in order to get the loan, they needed someone to sign a note for $12,500. At the end of that meeting, it was defendants’ understanding that the price was $53,000, and that along with their note, Brad’s grandmother was also going to sign a note for $12,500. Brad and Jodi returned a couple of days later with a financial statement and promissory note for defendants to sign. Defendants claimed that they never saw note No. 1 prior to signing the note for $12,500. They first saw note No. 1 in April 1988 when Paul Finke informed them that the loan was in default.

Surprisingly, defendants, even though they claimed that the plaintiff failed to deal fairly and in good faith with them, testified that the first time they ever met with Paul Finke was when Finke informed them that the loan was in default. Defendants denied knowing that the loan was for $70,500 and indicated that had they known that fact, they would not have signed the note for $12,500. It was defendants’ understanding that they would be obligated to pay only if the loan was in default. Defendants were unaware that the automobiles and motorcycle were security and that Brad’s parents were also signing a note for $12,500. They did understand, however, from Brad and Jodi that the loan was to be secured by a mortgage and a security interest in the inventory, equipment and other contents of the building.

Brad and Jodi defaulted on the loan, and plaintiff foreclosed and sued defendants to collect on the promissory note they had signed. Although plaintiff sued on the note itself, both parties agreed, contrary to the face of the notes, that the intent of the transaction was that defendants signed as guarantors only and were liable to pay on the note only if Brad and Jodi defaulted.

At trial, defendants’ affirmative defense number seven alleged that plaintiff failed to deal fairly and in good faith in the preparation of documents and failed to exercise good faith in documenting and accounting for the various obligations of the parties. Plaintiff’s motion to strike affirmative defense number seven was denied, but defendants were allowed to amend that defense at the end of trial without objection by plaintiff to add that plaintiff also “failed to obtain a security interest in inventory, equipment and other personal property.”

At the jury instructions conference, defendants tendered a jury instruction based on North Bank v. Circle Investment Co. (1982), 104 Ill. App. 3d 363, 432 N.E.2d 1004, for the proposition that the failure to perfect a security interest constitutes an impairment of collateral and the guarantor is discharged. The trial court stated that the giving of that instruction would be tantamount to giving a directed verdict. The trial court noted that the evidence presented by each side to this dispute was contradictory to its position in the trial. The trial judge finally decided out of frustration (we can sympathize and empathize with him), however, since Finke had testified as to the security interest in the equipment as being collateral that defendants relied upon, he was going to render a directed verdict in defendants’ favor based on North Bank.

Plaintiff makes several arguments on appeal, but we need only consider one: whether a directed verdict is warranted in this case where plaintiff bank failed to obtain a security interest in the equipment of a business purchased. We hold that the directed verdict was improper for the reasons that follow.

The outcome in this case is dependent upon the documents relating to the loan, the parties’ intentions, and the trial court’s interpretation of North Bank. The promissory note defendants signed was separate from note No. 1. Neither document indicated that the defendants signed the note as guarantors; rather, the documents themselves indicate that defendants were liable as comakers on a promissory note for $12,500. It appears that the $70,500 loan was made up of four documents; note No. 1 signed by Brad and Jodi for $33,000, with the additional $37,500 financed through three other notes, each in the amount $12,500. In this case, however, the intention of all parties is clear; Brad and Jodi were primarily responsible for $70,500, and defendants were guarantors for $12,500. Defendants were obligated to pay up to $12,500 only if Brad and Jodi defaulted on the full $70,500. The trial court, with the participation of the parties, determined that defendants signed the note as guarantors. Where parties have adopted a particular construction of doubtful terms or conditions of a contract, the court will follow the construction which the parties placed upon it. (Vermont Marble Co. v. Bayne (1934), 356 Ill. 127, 190 N.E. 291, citing McLean County Coal Co. v. City of Bloomington (1908), 234 Ill. 90, 84 N.E. 624.) We will therefore apply the law applicable to separate guaranty agreements.

We now consider the trial court’s application of North Bank to the case at hand. In North Bank, the guarantors signed a guaranty agreement printed on the reverse side of a promissory note. The loan was intended to be secured by certain collateral, but the bank failed to perfect a security interest in the collateral and the guarantor was discharged. North Bank relied on section 3 — 606 of the Uniform Commercial Code (Ill. Rev. Stat. 1973, ch. 26, par. 3 — 606), which stated, in part, that any party to an instrument would be discharged where the holder “unjustifiably impairs any collateral for the instrument.” (Ill. Rev. Stat. 1973, ch. 26, par. 3-606(l)(b).) North Bank stated that “the majority of States, including Illinois, agree that a failure to perfect a security interest constitutes an unjustifiable impairment of collateral.” (North Bank, 104 Ill. App. 3d at 369, 432 N.E.2d at 1008.) The Illinois cases North Bank cited for this proposition, however, relied expressly on the language of section 3 — 606. Wohlhuter v. St. Charles Lumber & Fuel Co. (1975), 25 Ill. App. 3d 812, 323 N.E.2d 134, aff’d (1975), 62 Ill. 2d 16, 338 N.E.2d 179; First Bank & Trust Co. v. Post (1973), 10 Ill. App. 3d 127, 293 N.E.2d 907.

In order for section 3 — 606 to apply, however, the “instrument” must be negotiable. “Any writing to be a negotiable instrument *** must (a) be signed by maker or drawer; and (b) contain an unconditional promise or order to pay a sum certain in money and no other promise, order, obligation or power given by the maker or drawer ***; and (c) be payable on demand or at a definite time; and (d) be payable to order or to bearer.” Ill. Rev. Stat. 1989, ch. 26, par. 3-104(1).

Defendants now concede that section 3 — 606 does not apply because the “guaranty,” as the document is referred to by the parties, is not a negotiable instrument under section 3 — 104, because a separate guaranty agreement is not a negotiable instrument. (Ishak v. Elgin National Bank (1977), 48 Ill. App. 3d 614, 363 N.E.2d 159.) Defendants also state that the note was not an “unconditional promise to pay” because defendants’ obligation to pay was dependent upon Brad and Jodi’s default. This court has also held “that the impairment of collateral defense under section 3 — 606(i)(b) is unavailable to a guarantor executing a separate contract from the instrument.” City National Bank v. Reiman (1992), 236 Ill. App. 3d 1080, 1090, 601 N.E.2d 316, 323.

It is contrary to defendants’ position at trial for defendants to now admit that section 3 — 606 does not apply to this case, because, in light of that, the trial court’s reliance on North Bank was admittedly misplaced and error. Defendants argue, however, that even though section 3 — 606 does not apply, full discharge of defendants is required by the common law principles of suretyship law as set forth in North Bank. While this may be true, the trial court based its ruling on the proposition that the failure to obtain a security interest is an impairment of collateral and made no finding on the facts of this case as they pertained to the “general principles of suretyship law.”

The directed verdict in this case was based only on the holding of North Bank. The cases which defendants now urge us to rely on in affirming the decision of the trial court pertain to the fact that a surety or guarantor is entitled to be dealt with in good faith (Watkins Products, Inc. v. Walter (1973), 11 Ill. App. 3d 417, 296 N.E.2d 859; Watseka First National Bank v. Ruda (1988), 175 Ill. App. 3d 753, 531 N.E.2d 28, rev’d on other grounds (1990), 135 Ill. 2d 140, 552 N.E.2d 775), that where the rights of a surety have been materially prejudiced it is not necessary to show injury in order to be discharged from liability (Passman v. Budnizky (1936), 284 Ill. App. 533, 1 N.E.2d 707), that the security interest was an unfulfilled condition of the guaranty which required discharge (Mount Prospect State Bank v. Forestry Recycling Sawmill (1980), 93 Ill. App. 3d 448, 417 N.E.2d 621), and that the terms of the agreement were materially altered after defendants signed the guaranty. Lawndale Steel Co. v. Appel (1981), 98 Ill. App. 3d 167, 423 N.E.2d 957.

Defendants submitted instructions based on some of these cases, then withdrew them and submitted an instruction based on North Bank. The trial court did not make any ruling on these cases.

A directed verdict is properly rendered where all of the evidence, when viewed in the light most favorable to the nonmoving party, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand. (Pedrick v. Peoria & Eastern Ry. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504.) Due to the conflicting testimony regarding the signing of the note, the fact that there was additional security which benefited the defendants, the fact that there was no evidence as to the value, if any, of the equipment, and the fact that it is not clear that defendants relied on the security interest in the equipment before they signed the note, we decline to make the determination as a matter of law that defendants were not dealt with in good faith or that they were materially prejudiced by the failure to obtain a security interest. We conclude that the directed verdict based on North Bank was error, and we reverse and remand for a new trial.

Reversed and remanded.

CHAPMAN, P.J., and WELCH, J., concur.


author: JUSTICE RARICK

text:
    FRANK J. HAHN, Plaintiff, v. NORFOLK AND WESTERN RAILWAY COMPANY, Defendant and Third-Party Plaintiff-Appellant (Clark Equipment Company, Third-Party Defendant-Appellee).
    Fifth District
    No. 5—91—0186
    Opinion filed February 11,1993.

      Thompson & Mitchell, of Belleville (Thomas W. Alvey, Jr., Kurt E. Reitz, and Mary Sue Juen, of counsel), for appellant.
    Martin H. Katz and John F. Doak, both of Katz, McAndrews, Balch, Lefstein & Fieweger, P.C., of Rock Island, and Robert Wilson, of Evans & Dixon, of Edwardsville, for appellee.
   JUSTICE RARICK

delivered the opinion of the court:

Norfolk & Western Railway Co. (N&W) appeals from the St. Clair County circuit court’s dismissal of its third-party claims for contribution and indemnity against Clark Equipment Co. (Clark).

Plaintiff, Frank J. Hahn, filed a Federal Employers’ Liability Act (FELA) action in February of 1985 against his employer, N&W, for injuries he suffered sometime in 1984 as a carman getting on and off a forklift. The forklift was manufactured by Clark and sold to N&W in 1975. In May of 1990, N&W filed a third-party claim against Clark for contribution in negligence and strict products liability and for indemnity in strict products liability. Clark moved to dismiss N&W’s complaint alleging the claims were barred either by the two-year statute of limitations of section 13 — 202 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1989, ch. 110, par. 13 — 202), by the five-year statute of limitations set forth in section 13 — 205 of the Code (Ill. Rev. Stat. 1989, ch. 110, par. 13 — 205) or by the product liability statute of repose set forth in section 13 — 213 of the Code (Ill. Rev. Stat. 1989, ch. 110, par. 13 — 213). The trial court granted Clark’s motion on February 13, 1991, two days into the trial of the underlying action. The trial court further entered an order finding no just reason for delaying enforcement or appeal of the dismissal order. N&W ultimately reached a settlement agreement with plaintiff in June of 1991.

N&W argues on appeal the trial court erred in dismissing its claims for contribution and implied indemnity by improperly relying on personal injury statutes of limitations and on the products liability statute of repose. N&W points out that according to the holding of Laue v. Leifheit (1984), 105 Ill. 2d 191, 473 N.E.2d 939, contribution claims are barred only when the third-party plaintiff fails to file such claims within the pendency of the underlying action, provided an underlying action exists. Plaintiff’s action here was still pending when N&W filed its third-party complaint against Clark, consequently N&W believes its claims were timely filed. N&W further asserts that third-party actions for implied indemnity in strict liability still are recognized as valid causes of action in Illinois, and more importantly, that actions for indemnity do not accrue until after the indemnitee has been held liable or has settled. As N&W had not yet been held liable nor had it settled, N&W believes the trial court also erred in dismissing its indemnity claim for being untimely filed. We begin with N&W’s claims for contribution.

The right of one tortfeasor to recover contribution from other joint tortfeasors was first recognized in Illinois in Skinner v. Reed-Prentice Division Package Machinery Co. (1977), 70 Ill. 2d 1, 374 N.E.2d 437. Shortly thereafter the legislature enacted the Contribution Among Joint Tortfeasors Act for all causes of action arising on or after March 1, 1978, thereby codifying and clarifying the holding of Skinner. (See J. I. Case Co. v. McCartin-McAuliffe Plumbing & Heating, Inc. (1987), 118 Ill. 2d 447, 462-63, 516 N.E.2d 260, 267; Tisoncik v. Szczepankiewicz (1983), 113 Ill. App. 3d 240, 245, 446 N.E.2d 1271, 1274-75.) Sections 2(a) and 2(b) of the Act establish a right of contributton among two or more persons “subject to liability in tort arising out of the same injury to person or property” limited to the tortfeasor who has “paid more than his pro rata share of the common liability.” (Ill. Rev. Stat. 1989, ch. 70, pars. 302(a), (b); see Hall v. Archer-Daniels-Midland Co. (1988), 122 Ill. 2d 448, 454, 524 N.E.2d 586, 589.) Under section 5 of the Act, a cause of action for contribution may be asserted by a separate action before or after payment or by counterclaim or third-party complaint in a pending action. (Ill. Rev. Stat. 1989, ch. 70, par. 305.) It is true as N&W asserts that our supreme court in Laue interpreted this section to mean that if there is a pending action, then the claim for contribution must be asserted either by counterclaim or third-party claim in that action. (See Laue, 105 Ill. 2d at 196, 473 N.E.2d at 941-42.) But Laue merely established a procedural requirement; it did not hold that all actions for contribution brought within the pendency of an underlying suit are timely filed. (See Hayes v. Mercy Hospital & Medical Center (1990), 136 Ill. 2d 450, 460, 557 N.E.2d 873, 877-78; Carlson v. Moline Board of Education School District No. 40 (1992), 231 Ill. App. 3d 493, 495, 596 N.E.2d 176, 178.) The question then becomes what is timely filed.

We start with the premise that the right of contribution arises in inchoate form at the time of a plaintiff’s injury. A cause of action for contribution accrues for purposes of statutes of limitations when the underlying action is filed against the third-party plaintiff or, if no underlying action is pending, when payment is incurred by the third-party plaintiff. (See Highland v. Bracken (1990), 202 Ill. App. 3d 625, 628-29, 560 N.E.2d 406, 408-09.) This means, here, once N&W was served with plaintiff’s complaint, N&W’s cause of action for contribution accrued and the statute of limitations started running. (Carlson, 231 Ill. App. 3d at 498, 596 N.E.2d at 180.) The applicable statute of limitations is not the only concern, however. A contribution action also must be filed within the period of the applicable statute of repose, if any, in order to be timely filed. (See Cornett v. Gromann Service Co. — Retail (1992), 227 Ill. App. 3d 148, 153, 590 N.E.2d 1013, 1017.) A statute of repose, being substantive in nature, extinguishes any right to bring any type of cause of action against a “party,” regardless of whether such action has accrued. (Highland, 202 Ill. App. 3d at 632, 560 N.E.2d at 411.) It is intended to terminate the possibility of liability of any sort, including the right of contribution, after a certain period of time. (Hayes, 136 Ill. 2d at 460, 557 N.E.2d at 878; Cornett, 227 Ill. App. 3d at 153, 590 N.E.2d at 1017.) This means N&W had to file its claim for contribution within the applicable period of repose in addition to filing it before any statute of limitations ran out. In this instance, N&W did neither. N&W was sued by plaintiff in February of 1985. N&W did not file its third-party claim against Clark until May of 1990. No matter which statute of limitations the trial court may have chosen to apply, N&W’s claim was untimely. (See Carlson, 231 Ill. App. 3d at 498, 596 N.E.2d at 180.) Similarly, N&W’s claim for contribution is also barred by the products liability statute of repose. Section 13 — 213 bars all product liability actions not commenced within 12 years from the date of first sale, lease or delivery of possession by a seller or 10 years from the date of first sale, lease or delivery of possession to its initial user, whichever period expires earlier. (Ill. Rev. Stat. 1989, ch. 110, par. 13 — 213.) A product liability action means “any action based on the doctrine of strict liability in tort brought against the seller of a product on account of personal injury.” (Ill. Rev. Stat. 1989, ch. 110, par. 13 — 213(a)(3).) Any action includes those for contribution. (Thompson v. Walters (1991), 207 Ill. App. 3d 531, 534-35, 565 N.E.2d 1385, 1387-88; see also Hayes, 136 Ill. 2d at 457-59, 557 N.E.2d at 876-77.) Consequently, no action for contribution can be maintained against a party who is no longer subject to liability because of the expiration of the period of repose. (Thompson, 207 Ill. App. 3d at 536, 565 N.E.2d at 1389; see also Ashley v. Evangelical Hospitals Corp. (1992), 230 Ill. App. 3d 513, 516, 594 N.E.2d 1269, 1271; Cornett, 227 Ill. App. 3d at 153, 590 N.E.2d at 1017.) To hold otherwise would effectively eliminate the protection afforded by the statute of repose. (Cornett, 227 Ill. App. 3d at 153, 590 N.E.2d at 1017.) The only exception lies in section 13 — 213(f), which allows contribution between those parties who are in fact joined before the repose period expires. (See Cornett, 227 Ill. App. 3d at 153, 590 N.E.2d at 1017; Thompson, 207 Ill. App. 3d at 538, 565 N.E.2d at 1390.) Even this exception does not help N&W. Clark sold the forklift involved in plaintiff’s suit to N&W in August of 1975. The statute of repose accordingly expired in August of 1985. Clark was not joined until 1990, some four years after the period of repose had already expired and some four years after any potential tort liability had been extinguished. As a contribution action can only be maintained against a party who is subject to liability in tort, the trial court properly dismissed N&W’s claim. See Cornett, 227 Ill. App. 3d at 153, 590 N.E.2d at 1017.

Turning to N&W’s claim for indemnity, we must find it too to be barred under the circumstances presented here.

Looking to the relationship between indemnity and the Contribution Act, we first note that indemnity is a common law doctrine which shifts the entire responsibility from one tortfeasor who has been compelled to pay the plaintiff’s loss to another tortfeasor who actually was at fault. (Galliher v. Holloway (1985), 130 Ill. App. 3d 628, 635, 474 N.E.2d 797, 803.) Contribution, on the other hand, distributes a plaintiff’s loss among all tortfeasors, requiring each to pay a proportionate share based on his or her relative fault. As such, indemnity and contribution are mutually exclusive remedies for allocating a plaintiff’s damages. (See Dixon v. Chicago & North Western Transportation Co. (1992), 151 Ill. 2d 108, 118, 601 N.E.2d 704, 708; Ashley, 230 Ill. App. 3d at 519, 594 N.E.2d at 1273.) Secondly, to have the right to indemnity, there must be a showing of a pretort relationship between the parties and a qualitative difference in their conduct justifying a shifting of liability. (Frazer v. A.F. Munsterman, Inc. (1988), 123 Ill. 2d 245, 255, 527 N.E.2d 1248, 1251.) Finally, the right to be indemnified by another may be express as in a contractual provision or implied from the relationship between the tortfeasors based on principles of restitution. Dixon, 151 Ill. 2d at 118-19, 601 N.E.2d at 709; Frazer, 123 Ill. 2d at 255, 527 N.E.2d at 1251.

Prior to the right of contribution being recognized in Illinois, the right to implied indemnity was expanded beyond the original notion of an indemnitee who himself was without personal fault to include active/passive negligence wherein the passively negligent or secondarily liable party was permitted to shift the entire burden of the plaintiff’s loss to the actively negligent tortfeasor. (Frazer, 123 Ill. 2d at 256, 527 N.E.2d at 1252.) With the adoption of contribution and comparative fault, however, actions for indemnity based on active/passive negligence were no longer recognized in this State. (Frazer, 123 Ill. 2d at 260-61, 527 N.E.2d at 1254; Allison v. Shell Oil Co. (1986), 113 Ill. 2d 26, 34, 495 N.E.2d 496, 501; Ashley, 230 Ill. App. 3d at 525, 594 N.E.2d at 1277; Lowe v. Norfolk & Western Ry. Co. (1984), 124 Ill. App. 3d 80, 97, 463 N.E.2d 792, 805.) Implied indemnity is still recognized, however, in the context of strict products liability. Strict liability, based on the policy of placing the onus on the one who placed a defective product in the stream of commerce, does not involve the fault-weighing analysis of active/passive negligence. (Frazer, 123 Ill. 2d at 258-59, 527 N.E.2d at 1253; Lowe, 124 Ill. App. 3d at 97, 463 N.E.2d at 805.) Yet, even a claim for implied indemnity based on a defective product cannot be maintained when the one seeking indemnity was negligent or otherwise at fault in causing the loss. (Dixon, 151 Ill. 2d at 120-21, 601 N.E.2d at 710; Thatcher v. Commonwealth Edison Co. (1988), 123 Ill. 2d at 275, 278-79, 527 N.E.2d 1261, 1263; Frazer, 123 Ill. 2d at 261, 527 N.E.2d at 1255.) Here, N&W arguably was negligent or, at least, was otherwise at fault in causing plaintiff’s loss. Even though no judgment of fault was entered against N&W, N&W did settle with plaintiff under a complaint charging fault thereby permitting the inference it settled to avoid such a finding of fault. Consequently, N&W cannot bring a claim for indemnity against Clark under such circumstances. (Dixon, 151 Ill. 2d at 120, 601 N.E.2d at 710; Kemner v. Norfolk & Western Ry. Corp. (1989), 188 Ill. App. 3d 245, 250, 544 N.E.2d 124, 127.) Additionally, actions for implied indemnity also fall within the purview of the section 13 — 213(a)(3) statute of repose. (See Roberson v. Belleville Anesthesia Associates, Ltd. (1991), 213 Ill. App. 3d 47, 51, 571 N.E.2d 1131, 1133; see also Ashley, 230 Ill. App. 3d at 526, 594 N.E.2d at 1278.) As with N&W’s claim for contribution, N&W’s claim for indemnity, even though possibly not having accrued as yet, was brought too late, for it was filed after the statute of repose had already expired. The trial court therefore properly dismissed N&W’s claim against Clark.

N&W asks us to make our ruling prospective, claiming hardship as a result of justifiable reliance on the established precedent of Lane v. Leifheit. Unfortunately, we cannot oblige N&W’s request. First, Lane did not hold all actions for contribution brought -within the pendency of an underlying suit were timely, nor did it purport to set forth all of the parameters of contribution. (See Hayes, 136 Ill. 2d at 460, 557 N.E.2d at 877-78; Carlson, 231 Ill. App. 3d at 499-500, 596 N.E.2d at 181.) More importantly, however, we, as an appellate court, have no authority to limit the application of a decision; only the supreme court has the inherent power to make rulings prospective or retroactive. (See Ashley, 230 Ill. App. 3d at 526-27, 594 N.E.2d at 1278-79; Strang v. Department of Transportation (1990), 206 Ill. App. 3d 368, 373, 564 N.E.2d 261, 264-65.) We therefore have no choice but to affirm the trial court’s dismissal of N&W’s third-party claims for contribution and indemnity against Clark.

For the aforementioned reasons, we affirm the judgment of the circuit court of St. Clair County.

Affirmed.

WELCH and W.A. LEWIS, JJ., concur.

       Justices Howerton and H. Lewis participated in oral argument. Justices Welch and W.A. Lewis were later assigned to this case in substitution for Justices Howerton and H. Lewis, and Justices Welch and W.A. Lewis have read the briefs and listened to the audiotape of oral argument.