author: JUSTICE GORMAN

text:
      In re ESTATE OF JESS H. WAGLER, Deceased (Donald R. Clark et al., Claimants-Appellants, v. Lucy Weeks, Residuary Legatee-Appellee (Kevin J. Stark, Ex’r, Defendant-Appellee)).
    Third District
    No. 3 — 90—0760
    Opinion filed August 23, 1991.

      McNeil & McNeil, of Mason City (Charles L. McNeil, of counsel), for appellants.
    David A. Benckendorf, of Peoria, for appellee Lucy Weeks.
    Susan Butler, of Morton, for appellee Kevin J. Stark.
   JUSTICE GORMAN

delivered the opinion of the court:

This appeal pertains to a claim filed in the estate of J.H. Wagler (also known as Jess H. Wagler), deceased. The executor, Kevin J. Stark, and one of the residuary legatees, Lucy Weeks, filed separate motions for judgment on the pleadings with respect to the claim filed by Donald R. Clark. The circuit court granted the motion filed by the legatee and entered judgment in favor of the estate and against the claimant. The claimant appeals. We reverse and remand.

As a preliminary matter, the legatee has filed a motion to strike the statement of facts contained in the claimant’s brief on appeal. This motion is granted to the extent that the statement of facts contains averments without basis in the record. We hasten to point out, however, that this court may look to the record to discern facts not cited by the parties.

J.H. Wagler died testate on September 18, 1989. On October 5, 1989, letters testamentary were issued to Kevin J. Stark as executor of the estate. Public notices were published beginning on October 18, 1989, stating that claims against the estate were required to be filed within six months of the issuance of letters testamentary. On March 29, 1990, Donald R. Clark filed a verified claim against the estate for $75,000, which stated that the nature of the claim was as follows:

“Jess Wagler was the farm manager and/or executor of Katie Wagler’s Estate and as such he encouraged and required Claimant to expend moneys for improvements on the land owned by Katie Wagler, which should have been made by the estate rather than claimant, as claimant has been required to protect his investment by purchase of the land.”

On June 18, 1990, claimant filed a revised claim, also verified, substantially similar to the original claim, but which stated that the nature of the claim was as follows:

“Decedent, Jess E. [sic] Wagler, was appointed the Executor of the Estate of Katie J. Wagler, and pursuant to the Last Will and Testament of the said Katie J. Wagler, Decedent was devised and given a life estate in all farm lands owned by Katie J. Wagler, including the farm occupied by Claimant, Donald Clark, conditioned upon the Decedent’s permitting Claimant, Donald Clark, to continue operating the said farm as a tenant under the same lease terms as existed on the date of the death of Katie J. Wagler. Upon the death of Katie J. Wagler, Decedent as Executor of her estate, or as life tenant or as farm manager, encouraged and required Claimant to expend moneys for improvements and maintenance on the lands rented to Claimant which should have been paid by the Decedent as Executor of Katie J. Wagler’s Estate, as landlord or as farm manager, as the Claimant has been required to protect his investment by purchase of the land. Claimant’s expenditures are attached as well as a copy of the document dated April 11, 1988, the Last Will and Testament of Katie J. Wagler.”

The listing of expenditures attached to the revised claim showed a total of $78,716.33. No copy of Katie J. Wagler’s will has been included in the record on appeal.

On July 12, 1990, the legatee filed a motion for judgment on the pleadings. The executor filed a separate motion for judgment on the pleadings on July 17, 1990. Both motions argued that the claimant in his verified claims had made “judicial admissions” that his claim was properly against the estate of Katie J. Wagler, and not the estate of J.H. Wagler. The legatee’s motion argued that the actions of J.H. Wagler which allegedly gave rise to the claim would have been done by him as agent for Katie J. Wagler’s estate, and as such J.H. Wagler could not have been personally liable on any such claim.

On August 3, 1990, the trial court entered an order granting the motion for judgment on the pleadings filed by the legatee, and entered judgment on the claim in favor of the estate and against the claimant. In its order the trial court made the following findings:

“1. [Claimant’s] judicial admissions provide that claimant knew that J.H. Wagler was acting as agent [and/or] personal representative of the Estate of Katie Wagler at all times relevant to this claim.
2. J.H. Wagler, as agent [and/or] personal representative of the Estate of Katie Wagler, is not personally liable to claimant, pursuant to case law [and] the Illinois Probate Act.”

On August 28, 1990, the claimant filed a motion to vacate the order of August 3, 1990. Without comment that appears of record, the trial court denied the claimant’s motion to vacate on September 17, 1990. Claimant filed a notice of appeal on October 11, 1990.

The claimant raises three issues on appeal: (1) whether the trial court erred in granting judgment on the pleadings; (2) whether the trial court erred in finding J.H. Wagler not personally liable for the claim by virtue of acting as agent or personal representative for the estate of Katie Wagler; and (3) whether the trial court erred in denying the claimant’s motion to vacate the judgment on the pleadings.

Section 18 — 2 of the Probate Act of 1975 (Ill. Rev. Stat. 1989, ch. lHPA, par. 18 — 2) states:

“Every claim [that is] filed [against an estate] must be in writing and state sufficient information to notify the representative of the nature of the claim or other relief sought.”

Technical legal form is not required in presentation of a claim against an estate, and proceedings in probate court for the allowance of claims are not governed by the technical rules which apply to a formal suit at law. (See Sheetz v. Morgan (1981), 98 Ill. App. 3d 794, 800, 424 N.E.2d 867, 871-72.) A motion for judgment on the pleadings, applicable to a formal suit at law by section 2 — 615(e) of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2— 615(e)), has no application to the adjudication of a claim against an estate, at least where the claim need only comply with section 18 — 2 of the Probate Act. Therefore, in at least a technical sense, the trial court erred in granting a motion for judgment on the pleadings in this case.

Overlooking the form of the motions for judgment on the pleadings, we next examine whether the claim was properly denied as one that could not possibly have been a personal liability of J.H. Wagler. In Thomas v. Gouwens (1975), 25 Ill. App. 3d 663, 323 N.E.2d 829, the appellate court stated:

“The rule is well settled that a guardian, executor, administrator, trustee, or other person acting in such relation, in a contract with third persons binds himself personally, unless he exacts an agreement from the person with whom he contracts to look to the funds of the estate exclusively. [Citation.]
The rationale of the rule is clear. An executor or administrator has no power to bind the estate by any contract originating with himself. He may make disbursements out of estate funds for purposes authorized by law, but he may not create a liability [of the estate] not founded upon a contract or obligation of the testator or intestate. [Citation.] Thus, although the contract may be made for the benefit and in the interest of the estate, if made upon new and independent consideration, the executor or administrator may be sued in his individual capacity and not as a representative. The fact that an executor or administrator is identified in a contract as a representative does not affect the rule, and although he may be named in the declaration or complaint as a representative, this will be considered merely descriptio personae and will be treated as surplusage or as only to show the nature and origin of his liability.” (Emphasis added.) Thomas, 25 Ill. App. 3d at 666, 323 N.E.2d at 831.

The trial court found that J.H. Wagler, acting in his capacity as executor of the estate of Katie Wagler, was an agent for the estate. The trial court concluded, apparently reasoning from agency law, that J.H. Wagler incurred no personal liability for his actions as executor. However, the quoted passage demonstrates that the relationship of an executor to an estate differs from that of an agent to a principal in that an executor cannot make the estate liable to a third party, whether by contract or otherwise.

The claim and the revised claim essentially allege that J.H. Wagler in some listed capacity (as executor of the estate of Katie Wagler, as landlord, as life tenant, or as farm manager) wrongfully required claimant to expend moneys that allegedly should have been expended by J.H. Wagler in one or more of those capacities. The allegedly wrongful conduct of J.H. Wagler as executor of the estate of Katie Wagler would have to have occurred subsequent to the death of Katie Wagler, and so could not have created a liability of the estate of Katie Wagler. Any liability arising from the allegedly wrongful acts of J.H. Wagler would have been his personal liability, and, therefore, it was error for the trial court to deny the revised claim on the basis that J.H. Wagler could not have been personally liable to the claimant.

The executor argues in his brief that the claim is time barred by virtue of section 13 — 209(b) of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 13 — 209(b)). That section states as follows:

“If a person against whom an action may be brought dies before the expiration of the time limited for the commencement thereof, and the cause of action survives, and is not otherwise barred, an action may be commenced against his or her personal representative after the expiration of the time limited for the commencement of the action, and within 6 months after the person’s death.” (Emphasis added.) Ill. Rev. Stat. 1989, ch. 110, par. 13 — 209(b).

This case involves a claim filed in an estate, and not an independent lawsuit. Section 13 — 209(b) discusses when an “action” may be commenced, and in our view is not applicable to a claim filed in an estate.

While a claim filed within the time limits of section 18 — 12 of the Probate Act of 1975 (Ill. Rev. Stat. 1989, ch. llOVa, par. 18— 12) nonetheless might be denied for being time barred under general statutes of limitation, there has been no showing that this claim is so time barred. We reject the executor’s argument that Vaughn v. Speaker (1987), 156 Ill. App. 3d 962, 509 N.E.2d 1084, affd (1988), 126 Ill. 2d 150, 533 N.E.2d 885, lends support to the proposition that section 13 — 209(b) sets an outer limit of six months after a person’s death for filing an action against his or her personal representative when the intended defendant dies before suit is brought. On the contrary, section 13 — 209(b) is a saving provision allowing suit to be filed after the expiration of the otherwise applicable limitation period so long as certain criteria are met. No showing has been made that the otherwise applicable limitation period had expired prior to the filing of the claim in this case.

For the reasons discussed, we reverse the judgment of the circuit court and remand this cause for further proceedings.

Reversed and remanded.

McCUSKEY and SLATER, JJ., concur.


source: Caselaw Access Project

author: JUSTICE McCUSKEY

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LEONARD BOONE, Defendant-Appellant.
    Third District
    No. 3 — 90—0353
    Opinion filed August 20, 1991.
    Thomas A. Karalis, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Kevin W. Lyons, State’s Attorney, of Peoria (Jay P. Hoffmann, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McCUSKEY

delivered the opinion of the court:

A jury found the defendant, Leonard Boone, guilty of burglary (Ill. Rev. Stat. 1989, ch. 38, par. 19 — 1(a)). The trial court subsequently sentenced him to a six-year term of imprisonment. He appeals, and we reverse.

The record reflects the vacant building the defendant entered was owned by William Parr, who testified he never gave the defendant permission to enter it. Two witnesses testified they saw the defendant fleeing from inside the building. Although nothing was taken from the building, several windows stored inside were broken and their aluminum frames twisted off.

The defendant was charged with burglary by an indictment which alleged that Boone did, on or about August 26, 1989, without authority, knowingly enter or remain within a building, owned by William Parr, with the intent to commit therein a theft. However, the State proceeded on the “remaining within” theory and only submitted jury instructions on that charge. Consequently, the jury’s verdict was premised upon a finding that the defendant intended to commit a theft after remaining within the building.

On appeal, the defendant argues the evidence was insufficient to sustain a conviction for burglary. Specifically, he contends that he could not be found guilty of burglary by unlawfully remaining since he had no legal authority to enter the building in the first place.

To sustain a conviction for burglary, the State is required to prove either (1) the defendant entered the building without authority and with the intent to commit a felony or theft, or (2) he remained within the building without authority and with the intent to commit a felony or theft. (Ill. Rev. Stat. 1989, ch. 38, par. 19 — 1(a); People v. Vallero (1978), 61 Ill. App. 3d 413, 378 N.E.2d 549.) A criminal intent formed after a lawful entry will satisfy the offense of burglary by unlawfully remaining. (People v. Boose (1985), 139 Ill. App. 3d 471, 487 N.E.2d 1088.) Whether the requisite intent existed is a question for the trier of fact, and the decision of the fact finder will not be overturned on appeal unless the evidence is contrary to the verdict or so unreasonable, improbable, or unsatisfactory as to create a reasonable doubt of guilt. People v. Sehr (1986), 150 Ill. App. 3d 118, 501 N.E.2d 848.

In the instant case, the defendant was convicted of burglary by unlawfully remaining. However, as noted above, the unlawfully remaining provision only applies in cases where the initial entry was lawful, since only in those cases can the requisite intent be formed after entry. Here, the evidence unquestionably shows the defendant unlawfully entered Parr’s building. Accordingly, he could not be convicted of burglary by unlawfully remaining. Therefore, we find the defendant was not proved guilty beyond a reasonable doubt of burglary.

Our resolution of this issue renders moot the remaining issues raised by the defendant.

The judgment of the circuit court of Peoria County is reversed.

Reversed.

STOUDER, P.J., and BARRY, J., concur.


author: JUSTICE HAASE

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHARLES E. SCHULDT III, Defendant-Appellant.
    Third District
    No. 3-90-0627
    Opinion filed August 23, 1991.
    Modified opinion filed September 16, 1991.

      Greg G. Chickris, of East Moline, for appellant.
    Marshall E. Douglas, State’s Attorney, of Rock Island (Terry A. Mertel, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE HAASE

delivered the opinion of the court:

A jury convicted the defendant, Charles E. Schuldt III, of aggravated criminal sexual assault and criminal sexual assault (Ill. Rev. Stat. 1989, ch. 38, pars. 12 — 14(a)(2), 12 — 13(a)(1)). The court thereafter sentenced him to serve eight years in prison. The defendant appeals.

The complainant testified at the defendant’s trial that on August 20, 1989, around 4 a.m., she approached the defendant in a bar. She and the defendant had had a sexual relationship in 1985 when the victim was a college student and the defendant was in high school. The couple left the bar about 4:07 a.m. and drove to the victim’s apartment. The victim noted that she wanted to show the defendant her new apartment, which at the time had no lighting because the utilities were not yet hooked up. When the victim began to show the defendant around the apartment, the defendant hugged and kissed her. She, however, backed off. About five minutes later, the couple left.

According to the victim, she and the defendant then drove to the defendant’s apartment. She went inside with the defendant apparently to use the bathroom. When she attempted to leave, the defendant grabbed her and tried to hug and kiss her. The victim resisted, but the defendant overpowered her and dragged her into the bedroom. She tried to scream, but the defendant put his hand over her mouth and pinched her nose shut. He eventually promised to let her breathe when she agreed not to scream. He then pushed her down on the bed, tied her hands behind her back with a shoelace, and placed a washcloth in her mouth. The victim noted that she babbled incoherently throughout the assault, but did not yell. The defendant subsequently removed all of the victim’s clothing, including her shirt. He removed her bra by cutting the straps with a knife.

The victim testified that the defendant then had anal intercourse with her. While doing so, he rubbed a knife blade across her back. After about 10 minutes, he struck her with a coat hanger, slapped her twice, and bit her twice. Thereafter, the defendant committed numerous acts of sexual assault upon her. In all, the defendant forced her to have anal intercourse four times and vaginal intercourse once. He also forced her to perform oral sex twice.

The victim further testified that at some point during the course of the assault, the defendant took her to the bathroom, placed her in the bathtub in two or three inches of water, and washed the area between her legs. The assault finally ended when she faked a cramp.

The victim also testified that, after the incident, the defendant dressed her and they left the apartment together. The victim gave the defendant a ride back to his truck. At that point, the sun had risen. The victim then went to Marty Wilson’s house. She told Wilson what had happened and she was eventually taken to the hospital.

Marty Wilson testified that the victim came to his apartment about 7 a.m., crying and hysterical. After he called the Rape Crisis Center and the victim’s parents, she was taken to the hospital.

Dr. Forest King, director of emergency services at the hospital, testified that he examined the victim on August 20, 1989. King noted that the victim had numerous scratches, bruises, and abrasions to the buttocks area. The victim also had a bruise-type injury near her rectum consistent with anal penetration. Dr. King opined that the victim’s injuries could be consistent with either consensual or nonconsensual sex.

Forensic serologist Kevin Zeeb testified that a washcloth recovered from the defendant’s apartment showed an ABO, ABH substance type present. He concluded that the substance could have originated from the victim but could not have originated from the defendant.

Police officer Michael Noon testified that he searched the defendant’s apartment on August 20, 1989. From the defendant’s bedroom, the officer seized a paring knife, a coat hanger, a washcloth, and shoelaces. One portion of the shoelaces was found hanging behind the headboard and the other was found on the floor.

The defendant testified that he terminated his previous dating relationship with the victim because she was getting too serious. At the bar on the night in question, the victim reacquainted herself with the defendant and invited him to her table, where they talked for a while. They left the bar together when the victim asked him if he would go somewhere with her and talk. He accepted, and she drove him to her apartment about five miles away.

According to the defendant, he and the victim kissed for about two minutes while inside her apartment. The defendant then asked the victim if she wanted to “do it.” She replied “no, not here.” She also stated that the other people in the apartment house might hear. Thereafter, the victim drove the defendant to his apartment in Rock Island, which was about three miles away.

The defendant further testified that at his apartment, the couple kissed for a few minutes. The defendant then asked if she wanted to have sex. She said yes and asked the defendant if he had ever been tied up before. They then went into the bedroom and removed all their clothes. The victim repeatedly asked the defendant if he wanted to be tied up, but the defendant declined. She then asked the defendant to tie her up. Thereafter, the defendant took some shoestrings and did so.

According to the defendant, the victim asked him to slap her. He complied, but the victim complained that he did not slap her hard enough. The defendant then grabbed a hanger and hit her on the buttocks three times. Finally, the defendant became disgusted with the situation and cut her loose with a knife. Thereafter, the couple engaged in consensual sexual relations. During the course of performing oral sex on the defendant, the victim became agitated and told the defendant that she would perform it her way or not at all. She then tied the defendant’s hands together behind his neck to the bed frame with her bra. After performing more oral sex, she took a shower leaving the defendant tied to the bed. The defendant then cut himself loose.

The defendant also testified that eventually he and the victim left the apartment together. The victim, however, went back inside to retrieve her bra. She became upset when she discovered it had been cut. She then drove the defendant back to the tavern. By that time it was light, but the sun had not yet risen. When the victim dropped the defendant off at the bar, the defendant told her he felt bad about cheating on his girl friend. At that point, the victim cursed him and drove away.

Gwen and Rudy Sajak testified that they lived next door to the defendant. Gwen awoke about 4:50 a.m. on the day in question. She noticed that the defendant’s bedroom light was on. She stated that she had not heard any noise coming from the defendant’s apartment, even though her windows and the defendant’s windows were both open. She also noted that she had walked her dog within five feet of his bedroom window and had not heard anything unusual. About 5:30 a.m., she saw a car, which had been parked in front of the defendant’s house, drive away.

On appeal, the defendant first argues that he was not proved guilty beyond a reasonable doubt. He contends that the victim’s testimony regarding numerous aspects of the incident was insufficient, incredible, confused, and contradicted. For example, he notes that the victim claimed she was overpowered yet there was no evidence that she was injured from resisting. He further notes that the other witnesses contradicted the victim’s testimony regarding the time frame of the incident, whether the sun had risen, and whether she was hysterical afterwards. Additionally, the defendant claims that it was physically impossible for the defendant to remove the victim’s blouse from her while her hands were tied behind her back.

It is well settled that when presented with a challenge to the sufficiency of the evidence, it is not the function of a reviewing court to retry the defendant; the relevant question is whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267.) The reasonable doubt test as announced in People v. Collins is the proper standard of review in all criminal cases. (People v. Pintos (1989), 133 Ill. 2d 286, 549 N.E.2d 344.) We join recent decisions by the first district (People v. Byrd (1990), 206 Ill. App. 3d 996, 565 N.E.2d 176); fourth district (People v. Evans (1990), 199 Ill. App. 3d 330, 556 N.E.2d 904); and fifth district (People v. Meador (1991), 210 Ill. App. 3d 829), in holding that the proper standard of review in sex offense cases is the reasonable doubt test as announced in People v. Collins.

After reviewing the evidence in the light most favorable to the prosecution, we find that a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. The outcome of the case rested upon the credibility of the witnesses. The trier of fact was fully aware of the inconsistencies in the victim’s testimony, yet it nevertheless chose to believe her version over the story given by the defendant. The victim’s testimony, although somewhat inconsistent with her previous statements, was detailed and unwavering regarding the defendant’s conduct during the commission of the offenses. We further find that any discrepancies in the time frame of the incident were minor and did not detract from the reasonableness of her story as a whole. See People v. Redman (1986), 141 Ill. App. 3d 691, 490 N.E.2d 958.

We also find unpersuasive the defendant’s claims that some of the victim’s testimony was incredible. In that regard, we note that removal of the victim’s knit blouse could have been facilitated when her arm was momentarily freed. We further note that the jury could have reasonably concluded that the victim was unable to scream because she had been gagged by the defendant, and that she did not resist to the point of injury because she feared that the defendant would seriously injure her. Under the circumstances, we do not find that the evidence was so improbable as to raise a reasonable doubt about the defendant’s guilt.

The defendant next argues that the trial court erred in denying his motion to suppress. He contends that the police unlawfully seized shoelaces from his apartment during a second search of his apartment. He further contends that reversal is required because of the trial court’s failure to state findings of fact and conclusions of law in rendering its decision.

We initially note that the defendant erroneously contends that reversal is required because of the court’s failure to state findings of fact and conclusions of law. The absence of findings of fact and conclusions of law does not require reversal if the evidence would sustain the ruling of the trial court. People v. Dickerson (1979), 69 Ill. App. 3d 825, 387 N.E.2d 806.

In the instant case, a search warrant was issued on the day of the crime to retrieve several items from the defendant’s apartment, including shoelaces or other items used to tie the victim. The warrant was executed that afternoon and the shoelaces in question were discovered, seized, tagged, and placed in a paper bag. Many other items were also seized and placed in bags at the scene. However, the bag with the shoestrings and Officer Noon’s notebook were inadvertently left in the defendant’s apartment. A short time after the search was concluded, Officer Noon realized that he had left his notebook inside the apartment. After securing permission from the owner, he reentered the apartment through a window and retrieved the notebook. When the police returned to the police station, they discovered that the shoelaces were also left behind. They then called the owner to ask for permission to reenter the apartment and get the bag containing the shoelaces. The owner told the officers that he would have to consult an attorney before giving permission. When the owner had not returned their call for some time, the officers went to the defendant’s apartment, let themselves in through a window, and retrieved only the bag containing the shoelaces.

We note that Federal courts have held that where police make a second entry pursuant to a valid warrant, the second search is a continuation of the first and does not violate the fourth amendment. (United States v. Bowling (6th Cir. 1965), 351 F.2d 236; United States v. Carter (8th Cir. 1988), 854 F.2d 1102; United States v. Kaplan (9th Cir. 1990), 895 F.2d 618.) In Carter, the police returned several hours after the initial search to retrieve an item listed in the search warrant. The court held that the authority of the warrant had not expired, and therefore, the return search was not beyond the scope of the fourth amendment.

Similarly, in the instant case, we find that although the officers’ retrieval of the shoelaces was somewhat inept, it was not beyond the scope of the fourth amendment. The items here had previously been seized, tagged, and inadvertently left behind. The police retrieved the items several hours later only after attempting to gain entry with the permission of the owner of the premises. Under these circumstances, we find that the trial court’s decision denying the defendant’s motion to suppress was proper.

The defendant next contends that the trial court erred in refusing to allow testimony from the defendant’s neighbors that they observed and heard the police search the defendant’s apartment when they retrieved the shoelaces. He further contends that the offered evidence was relevant because it showed that the neighbors could hear and observe activities at his residence.

Evidence may be rejected on the grounds of relevancy if it is of little probative value because of remoteness, uncertainty or conjectural nature. (People v. Kavinsky (1981), 98 Ill. App. 3d 579, 424 N.E.2d 340.) Whether evidence offered by a defendant is relevant is a determination within the sound discretion of the trial court. People v. Boyd (1980), 81 Ill. App. 3d 259, 401 N.E.2d 304.

Here, we find that the neighbors’ awareness of the defendant’s apartment on the night following the attack was not indicative of their general awareness of the defendant’s apartment. Moreover, the victim testified that the defendant had gagged her mouth and she did not scream. The neighbor’s testimony that she heard the police step on a tin can outside her residence did not tend to indicate that she could hear conversations within the defendant’s residence. Under the circumstances, we find that the trial court did not abuse its discretion in refusing to allow the evidence.

The defendant next argues that the trial court erred in refusing evidence concerning the details of prior sexual conduct between the victim and the defendant.

Initially we find that the trial court erroneously ruled that the so-called rape shield statute, section 115 — 7 of the Code of Criminal Procedure of 1963 (Code) (Ill. Rev. Stat. 1989, ch. 38, par. 115 — 7), bars the introduction of such testimony whenever the victim admits prior sexual activity with the defendant. However, we further find that the court did not abuse its discretion in refusing the testimony on relevancy grounds.

Section 115 — 7(a) of the Code provides that the prior sexual activity or the reputation of the alleged victim is inadmissible except as evidence concerning the prior sexual conduct of the alleged victim with the accused. In other words, the prior sexual history of the victim in relation to the defendant is admissible. The State’s contention that subsection (b) of section 115 — 7 of the Code precludes evidence of the prior sexual activity between the defendant and victim when the victim admits such activity is a misreading of the statute. Section 115 — 7(b) provides that an offer of proof must be made in the event that the victim denies the prior sexual activity with the defendant. If the victim admits the prior sexual activity, then an offer of proof is not required. In the present case, the victim admitted sexual involvement with the defendant on two prior occasions in 1985. Therefore, the defendant was not precluded by statute from inquiring into the details of those incidents.

Nonetheless, we note that the determination of whether the details of the sexual activity were admissible remained subject to standards of relevancy. Here, the trial court initially required defense counsel to make an offer of proof concerning the relevancy of the details of the prior sexual activity. The court noted that the details would be relevant if the defendant could show some type of forceful consensual sex. During the offer of proof, the victim stated that her sexual encounters with the defendant involved vaginal and not anal intercourse. Nothing in the offer of proof demonstrated the kind of sadomasochist sexual conduct described by the defendant in his testimony. After eliciting the victim’s testimony, defense counsel concluded his offer of proof without presenting any evidence from the defendant to show how the defendant’s testimony would differ from the victim’s. Thus, it is apparent that the defendant wanted to introduce the details of the prior acts to increase the emphasis on the fact that the incidents occurred and thereby unduly prejudice the victim in the eyes of the jury.

We further note that the defendant was allowed to elicit testimony from the victim before the jury that she had had sexual intercourse with the defendant twice in 1985. Under the circumstances, any further details concerning incidents that occurred four years ago were not relevant to the issue of whether the victim consented to sex with the defendant on August 20, 1989. Accordingly, we will not disturb the trial court’s decision to exclude the evidence.

The defendant next contends that the trial court erred in allowing leading questions with the victim.

The test of a leading question is whether it suggests the words or thought of the answer. (People v. Cobb (1989), 186 Ill. App. 3d 898, 542 N.E.2d 1171.) The use of a leading question does not warrant reversal of a conviction unless it is shown that the trial court abused its discretion and that such abuse resulted in substantial injury to the defendant. (People v. Taylor (1971), 132 Ill. App. 2d 473, 270 N.E.2d 628.) A leading question does not harm the defendant if the question asked did not involve material information. People v. Cobb (1989), 186 Ill. App. 3d 898, 542 N.E.2d 1171.

After reviewing the record, it appears that some of the prosecutor’s questioning was leading. However, we find that under the circumstances presented here, any error was harmless and does not require reversal.

The defendant next argues that the trial court committed reversible error in questioning two defense witnesses. In that regard, he points out that the trial court inquired about whether the defendant’s wife had ever heard anyone at the bank where she worked discuss the defendant’s reputation for chastity. The defendant also points out that the court questioned the defendant’s mother about the ability of the defendant’s bathtub to hold water.

We note that it is well settled that a trial judge may ask questions of a witness in order to clarify the evidence. (People v. Enoch (1989), 189 Ill. App. 3d 535, 545 N.E.2d 429.) Furthermore, an extensive examination by the judge may be justified if he has reason to believe that a witness is not telling the truth; the court, however, must not forget its judicial function and assume the role of an advocate.

The State claims that the defendant waived any error concerning the court’s questioning of the defendant’s wife. We agree, since the defendant failed to raise an objection to the questioning at trial. People v. Long (1968), 39 Ill. 2d 40, 233 N.E.2d 389.

Turning to the questioning of the defendant’s mother, we find that the court’s questioning was merely an attempt to clarify why the defendant’s bathtub would not hold water. The testimony also clarified whether the defendant had an external stopper. Accordingly, we find that the trial court’s questioning and comments were not improper.

The defendant next argues that the trial court improperly restricted or excluded the defendant’s reputation evidence. Among other things, he claims that the court improperly struck the defendant’s employer’s testimony that the defendant had a good reputation for refraining from sexual assault.

In the instant case, the prosecutor objected when defense counsel asked the defendant’s employer if the defendant had a good reputation with regard to nonviolence to women. The trial court did not strike the answer, but asked defense counsel if he wished to rephrase the question. Defense counsel agreed to rephrase the question and then asked the witness if the defendant had a good reputation with regard to refraining from sexual assault. The trial court struck the witness’ affirmative response to that question. Thereafter, the trial court allowed defense counsel to ask the witness if the defendant had a good reputation for decency and morality.

In People v. Partee (1974), 17 Ill. App. 3d 166, 308 N.E.2d 18, the court noted that in sex crimes, the traits involved, and as to which the accused may introduce evidence of his good character, are chastity, morality and decency. The court further noted that counsel cannot inquire of a negative attribute of character, and infer that its absence is sufficient to lay a proper foundation for a good reputation.

Similarly, in the instant case, defense counsel was really trying to inquire into a negative character trait (i.e., nonviolence to women) and infer from its absence that the defendant had a good reputation. Accordingly, we find that the trial court did not abuse its discretion in excluding the evidence.

We find that the other exclusions of character evidence were also proper, since they were personal opinions and not based on the defendant’s reputation in the community. However, even assuming that the trial court erred in restricting some of the evidence, the error was harmless. The defendant introduced character evidence from 10 different witnesses. Under the circumstances, the court’s striking of some of the character evidence was harmless. See People v. Bartall (1983), 98 Ill. 2d 294, 456 N.E.2d 59.

Lastly, the defendant argues that the trial court abused its discretion in excluding evidence that the victim took a “morning after” pill at the hospital following the sexual assault.

We find that evidence about whether the victim took birth control pills was not relevant. It is logical that a woman would take a morning after pill if she was raped, even if she had been taking other birth control pills. The proffered evidence did not tend to make any issue in dispute more or less likely. Accordingly, we find that the trial court did not abuse its discretion in excluding that evidence..

The judgment of the circuit court of Rock Island County is affirmed.

Affirmed.

STOUDER, P.J., and SLATER, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GHASSAN ABDELMASSIH, Defendant-Appellant.
    Third District
    No. 3 — 90—0344
    Opinion filed August 23, 1991.

      Joseph N. Ehmann, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Edward Burmila, Jr., State’s Attorney, of Joliet (John X. Breslin and Gary E Gnidovec, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McCUSKEY

delivered the opinion of the court:

A jury convicted the defendant, Ghassan Abdelmassih, of unlawful possession of a controlled substance with the intent to deliver (Ill. Rev. Stat. 1989, ch. 56V2, par. 1401(a)(2)). The trial court subsequently sentenced him to six years’ imprisonment. The defendant appeals. We affirm.

At trial, police officer Dennis Carey testified that on April 29, 1989, he participated in the execution of a search warrant at 613 Cochise Drive in Bolingbrook. Carey stated that he and several other officers entered the residence and found the defendant sleeping in a basement bedroom. While searching the room, Carey found substances he believed to be cocaine and marijuana in a desk drawer. Carey also found a triple-beam scale, a Right Guard container with a false bottom, and two paper snow seals. The defendant was subsequently placed under arrest.

Thereafter, in the living room of the defendant’s residence, he was taken through the booking process, which included filling out a personal information form and a Miranda warning form. The personal information form requested the defendant’s name, address, telephone number, previous address, race, height, weight, date of birth, place of birth, citizenship, social security number, driver’s license number, employer, employer’s address, occupation, previous employer’s address, hair color, eye color, build, complexion, and other identifying information. Officer Carey testified that in response to the question on place of employment, the defendant stated he was unemployed and had last worked in December of 1987.

Richard Paulas testified that in July of 1989 he was working as a forensic scientist for the State crime lab. He tested People’s exhibit 1 and found one packet contained 17.7 grams of a substance containing cocaine and the other packet contained 5.6 grams of a substance containing cocaine. Paulas determined the 17.7 gram sample was 92% pure cocaine. He also tested People’s exhibit 2, consisting of two snow seals, and found they contained .5 and .2 grams of cocaine respectively.

Officer Paul Kaupas was qualified by the court as an expert witness. He testified that while searching the house at 613 Cochise Drive he found $413 in a wallet in the room where the defendant was sleeping. He also noted that 92% pure cocaine is typically not found in the possession of users. The most commonly delivered cocaine is 10% to 20% pure. Kaupas stated that 17.7 grams of 92% pure cocaine coúld be cut to produce more than 70 grams of street-quality cocaine with a value of up to $7,000. He further testified that a cocaine user needs only one line, or approximately .25 grams, to become under the influence of cocaine.

While admitting that the triple-beam scale, Right Guard can, and snow seals could be used for other purposes, Officer Kaupas testified they could all be characterized as drug paraphernalia. He concluded that in his opinion a person found with 17.7 grams of 92% pure cocaine, 5.6 grams of cocaine of an unknown purity, a dummy Right Guard canister, and two snow seals containing cocaine would be a drug dealer or distributor.

The only defense witness called was the defendant’s nephew, John Ibrahim. He testified he lived with his parents at 613 Cochise Drive and the defendant occasionally stayed at their home. Ibrahim stated he had a large party at the home on April 22, 1989, when his parents were out of town. Approximately 60 people attended the party and many were in the room in which the defendant was found sleeping. Ibrahim did not see any people using cocaine at the party and made a point of checking to make sure that no drugs were going into the house. He noted he had never seen the defendant use or possess drugs.

During closing argument, the prosecutor told the jurors that in order to find the defendant innocent they would either (1) have to dismiss Officer Kaupas’ testimony or (2) find that Officer Kaupas’ testimony did not convince them beyond a reasonable doubt that the paraphernalia found in defendant’s possession indicated an intent to deliver drugs. The prosecutor also told the jurors that if they believed Officer Kaupas and were persuaded by him, they should sign only the verdict form indicating that the defendant had been in possession of drugs with the intent to deliver.

On appeal, the defendant first argues that the trial court abused its discretion by qualifying Officer Kaupas as a narcotics expert capable of rendering an expert opinion regarding the defendant’s intent. We disagree.

We begin by noting that Officer Kaupas did not testify as to the defendant’s intent. He merely testified that the presence of certain types of drugs and drug paraphernalia would indicate the drugs were for sale rather than for personal use. As such, Officer Kaupas’ testimony did not extend beyond the subject matter in which the court qualified him as an expert.

As for whether the trial court acted properly in qualifying him as an expert on the subject of narcotics, we note that before ruling on the admissibility of expert testimony, the court must make two preliminary determinations. First, the court must determine whether the purported expert testimony is useful or relevant; and second, whether the witness is properly qualified to give the testimony sought. (People v. Hanserd (1985), 136 Ill. App. 3d 928, 483 N.E.2d 1321.) Determination of the sufficiency of an expert’s qualifications rests largely within the sound discretion of the trial court. People v. Einstein (1982), 106 Ill. App. 3d 526, 435 N.E.2d 1257.

In the case at bar, Officer Kaupas testified he had been a police officer for 17 years. He attended and lectured at seminars on illegal substances and had five or six credit hours of courses relating to the effect of drugs on people. Additionally, he had been a shift commander for the violent crimes drug-suppression unit and had participated in approximately 600 narcotics arrests, of which 40% to 50% involved cocaine.

We find the trial court did not abuse its discretion in finding Officer Kaupas to be qualified as an expert witness on the subject of narcotics. His testimony was both useful and relevant. While a jury would be reasonably expected to know what cocaine is, it is doubtful it would have any expertise on cocaine distribution. Officer Kaupas was qualified to testify concerning the presence of various types of drugs and drug paraphernalia and what the combination of those items would tend to indicate regarding the distribution of cocaine. An expert witness is qualified to draw reasonable inferences from facts which the laymen jurors would not otherwise be competent to draw. People v. Seaman (1990), 203 Ill. App. 3d 871, 561 N.E.2d 188.

The defendant next contends that Officer Kaupas erroneously and prejudicially invaded the province of the jury by testifying that in his expert opinion the defendant intended to sell or distribute cocaine. We disagree.

We again note that Officer Kaupas did not testify as to the defendant’s intent. He merely testified that the possession of certain types of drugs and drug paraphernalia would indicate the drugs were for sale rather than for personal use. However, even if Officer Kaupas’ testimony were interpreted to be testimony as to the defendant’s intent, any error stemming from that testimony would be harmless. The defendant in the instant case was in possession of a quantity and quality of cocaine far surpassing that ordinarily possessed by mere users. Additionally, he was found possessing paraphernalia characteristically associated with drug dealers. In light of the overwhelming evidence of the defendant’s guilt, any error caused by the admission of Kaupas’ statement was harmless beyond a reasonable doubt. People v. Bryant (1983), 94 Ill. 2d 514, 447 N.E.2d 301.

The defendant next argues the trial court erroneously allowed statements obtained from him in violation of his fifth amendment rights to be admitted into evidence, thereby denying him a fair trial. We disagree.

Defendant contends that since he had stated he did not want to make a statement, Officer Carey violated his fifth amendment rights by asking him about his previous employment history. Defendant further contends that Officer Carey’s questioning exceeded the scope of any rational or proper booking process and was nothing more than an effort to gather incriminating evidence.

The Illinois Supreme Court addressed a similar issue in People v. Dalton (1982), 91 Ill. 2d 22, 434 N.E.2d 1127. In Dalton, the court held that a police officer’s inquiry about the defendant’s date of birth was not proscribed by Miranda and, consequently, the defendant’s response was properly admitted. In support of its conclusion, the court cited over a dozen cases from other jurisdictions which held such inquiry is not barred. However, the court did note one case in which another jurisdiction did bar such inquiry. See Proctor v. United States (D.C. Cir. 1968), 404 F.2d 819.

The mere citation of Proctor by the Illinois Supreme Court in a case holding the opposite of Proctor is not sufficient to establish that Illinois has adopted the holding in Proctor. Therefore, we are not bound by the Proctor holding. Rather, we subscribe to the view recently espoused by the United States Supreme Court in Pennsylvania v. Muniz (1990), 496 U.S. 582, 110 L. Ed. 2d 528, 110 S. Ct. 2638. In that case, the Court concluded that the “routine booking question exception” exempts from Miranda’s coverage questions which are asked to secure biographical data reasonably related to the police’s administrative concerns.

In the instant case, the question of employment is a standard question asked of all individuals during the booking procedure. This is not a situation in which the matter was broached for the purpose of obtaining incriminating evidence against the defendant. We therefore hold that under these circumstances Officer Carey’s inquiry about the defendant’s place of employment was not proscribed by Miranda.

The defendant’s final argument is that prosecutorial misconduct occurred during closing argument. Defendant alleges the prosecutor misstated the law when he told the jury that in order to acquit the defendant, it would have to find the State’s expert witness’ testimony to be a “complete fabrication.”

This issue was not raised in the defendant’s post-trial motion; thus, it has been waived. (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.) Application of the waiver rule can be relaxed if the remark constitutes plain error. (134 III. 2d R. 615(a).) However, in the instant case, the evidence was not closely balanced nor do we find the error was of such magnitude that the accused was denied a fair trial. We therefore find the plain error exception does not apply.

Accordingly, the judgment of the circuit court of Will County is affirmed.

Affirmed.

SLATER and HAASE, JJ., concur.


author: PRESIDING JUSTICE STOUDER

text:
    CITY OF PEORIA MUNICIPAL EMPLOYEES ASSOCIATION et al., Plaintiffs-Appellees and Cross-Appellants, v. THE CITY OF PEORIA, ILLINOIS, Defendant-Appellant and Cross-Appellee.
    Third District
    Nos. 3 — 90—0830, 3 — 90—0876 cons.
    Opinion filed August 22, 1991.

      David L. Thomas, Corporation Counsel, and Robert M. Riffle, of Keck, Mahin & Cate, both of Peoria (Roy G. Davis, of counsel), for appellant.
    Sandra J. Birdsall, of Leiter, Brady & Associates, of Peoria (Thomas E. Leiter, of counsel), for appellees.
   PRESIDING JUSTICE STOUDER

delivered the opinion of the court;

The defendant, the City of Peoria, appeals from a judgment entered in a class action brought by the named plaintiffs, Andy Kalina, Robert Hillier, Gerald Belcher and the City of Peoria Municipal Employees Association. We affirm.

This court has twice before addressed issues raised on appeal in this litigation. (See City of Peoria Municipal Employees Association v. City of Peoria (1989), 182 Ill. App. 3d 407, 537 N.E.2d 1115; City of Peoria Municipal Employees Association v. City of Peoria (1990), 201 Ill. App. 3d 71, 559 N.E.2d 257.) In the instant appeal we are asked to address the propriety of the trial court’s determination on the issue of damages.

This case arises out of a decision by the City of Peoria in 1983 to change from a biweekly payroll system to a semimonthly system beginning in 1984. The plaintiffs brought a class action contending the switchover to the new system resulted in the City failing to pay them for work performed between December 10 and December 31, 1983. The proceedings were to be bifurcated with a jury trial on the issue of liability and a bench trial on the issue of damages.

At the conclusion of the jury trial, the jury returned a “general verdict” in favor of the plaintiffs. The jury also returned answers to special interrogatories. The trial court granted the defendant’s motion for a directed verdict and the plaintiffs appealed. This court reversed and remanded, finding the jury’s verdict that money was owed the plaintiffs was correct. City of Peoria Municipal Employees Association v. City of Peoria (1989), 182 Ill. App. 3d 407, 537 N.E.2d 1115.

On remand, the defendant contended before the trial court that this court’s reversal required the trial court to review the verdict of the jury and enter judgment on the issue of liability. The defendant alleged the jury’s answers to the special interrogatories were inconsistent with the “general verdict.” The trial court rejected this proposition, finding that this court’s opinion held the jury’s verdict that money was owed the plaintiffs was correct.

Following a hearing, where evidence of what was owed the plaintiffs was presented, both parties filed motions for summary judgment. The trial court denied both motions on March 15, 1990. On plaintiffs’ Rule 308 motion (134 Ill. 2d R. 308), the trial court certified the following question to this court: “Whether the Court’s denial of Plaintiffs’ Motion for Summary Judgment and Motion for Reconsideration violated the Appellate Court’s Mandate.”

This court denied the plaintiffs’ application for leave to appeal in a published opinion. (City of Peoria Municipal Employees Association v. City of Peoria (1990), 201 Ill. App. 3d 71, 559 N.E.2d 257.) This court reiterated that the defendant was exposed to liability and clarified we had remanded the cause to the trial court for a hearing to assess damages. However, we recognized the defendant might have certain defenses concerning the total amount owed to the plaintiffs. In light of the defendant’s recurrent arguments reflected in the record, we stated we were confident the trial court would disallow or disregard any defense raised by the defendant which went to the issue of liability and not damages.

On remand an extensive hearing was held before the trial court on the issue of damages. On October 22, 1990, the trial court entered an order finding by a preponderance of the evidence that the defendant owed the plaintiffs for the entire three weeks between December 10 and December 31, 1983. The trial court concluded that with certain adjustments, the defendant owed the plaintiffs $936,285.20 in unpaid wages. In addition to other costs, the trial court awarded the plaintiffs prejudgment interest through October 22, 1990, in the amount of $318,336.85 and post-judgment interest in the amount of $206.24 per day. On November 28, 1990, the trial court entered an order of distribution regarding the funds owed by the defendant. The defendant thereafter filed the instant appeal.

On appeal, the defendant contends the trial court erred in not entering judgment for the defendant based on the jury’s answers to the special interrogatories. The defendant asserts that when this court reversed the directed verdict in favor of the defendant, this left the case without any judgment based on the jury’s verdict and answer to interrogatories. The defendant argues the issue of the inconsistency of the jury’s answers has never been addressed, and “the issue of liability has never been determined.” We find this argument, made at this stage of the proceedings and in light of our previous two opinions in this case, to say the least, to be completely specious and without merit. This is simply an attempt to relitigate an issue — liability—long since decided. We revisit the issue at some length solely to put the matter finally to an end.

In pertinent part the jury returned the following verdict: “We, the Jury, find that there is due and owing by the Defendant to the Plaintiffs wages for work Plaintiffs performed during 1983.” In response to special interrogatories, the jury responded:

1. “Do you find that in 1983 the Plaintiffs were salaried employees of the City of Peoria?” “Yes.”

2. “Do you find that the compensation to which the Plaintiffs were entitled in 1983 was their annual salary?” “Yes.”

3. “Do you find that the City paid the Plaintiffs their annual salary in 1983?” “Yes.”

4. “Do you find that the City paid the Plaintiffs the compensation to which they were entitled in 1983?” “No.”

The defendant maintains there is an inconsistency between the jury’s “general verdict” and its answers to the special interrogatories, particularly interrogatory No. 3. The defendant asserts it is entitled to judgment based on this inconsistency. (See Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1108.) The defendant maintains this issue has never been addressed.

The record shows the defendant has raised this issue repeatedly throughout the course of this litigation beginning with an extensive memorandum requesting entry of judgment filed soon after the jury entered its verdict. Following consideration of the parties’ arguments, the trial court held the defendant was entitled to either a directed verdict or judgment notwithstanding the verdict. The trial court stated it would allow the defendant to draft the order, based on either ground, and that the trial court would make a final determination thereafter. The trial court indicated it did not believe the findings of the jury were inconsistent. The order entered June 16, 1988, granted the defendant's motion for a directed verdict. The order contained the following paragraph:

“This conclusion is supported by the Jury’s answers to the [sic] certain special interrogatories submitted to it. The Jury determined that the Plaintiffs were salaried employees, that the compensation to which they were entitled in 1983 was their annual salary and that they were paid their annual salary.”

On the first appeal in this matter, the issue was extensively briefed by the defendant. This court set forth the findings of the jury. After extensive analysis of the liability issue, this court concluded that the jury’s verdict finding the defendant owed the plaintiffs money was correct, and that the trial court erred in granting the motion for a directed verdict. We noted the jury’s findings and found no merit to the defendant’s contention. Subsequently, the Illinois Supreme Court denied the defendant’s leave to appeal.

On remand the defendant again raised this issue. The trial court correctly rejected this argument based on this court’s opinion. Thereafter, in the second appeal, this court clarified the earlier opinion by stating that we had remanded the cause to the trial court for a hearing to assess damages. The amount of damages was the only issue remaining. However, as the record reflects, the defendant has repeatedly attempted to reopen the liability issue using this argument, as well as other theories advanced in the guise of arguing the damages issue.

In sum, this court has held that the jury’s verdict that money was owed the plaintiffs was correct. To again clarify, we find no inconsistency in the jury’s verdict. We find interrogatory No. 3 was ambiguous in light of the evidence and arguments presented to the jury. Clearly, the plaintiffs received in 1983 an amount equivalent to their 1983 salary. This would explain the jury’s affirmative answer to interrogatory No. 3. However, as this court stated in the first opinion, the evidence showed that the first V-k paychecks received in 1983 represented compensation for work performed in 1982. The defendant maintained that all paychecks received in 1984, including the January 3, 1984, paycheck, were compensation for work performed in 1984. Thus the jury found the defendant had not paid the plaintiffs their total 1983 compensation and thus owed money to the plaintiffs. Therefore, we find the defendant’s argument on this issue to be without merit.

The defendant also contends on appeal that the plaintiffs have failed to establish a prima facie case as to the existence and amount of damages, and have failed to rebut the testimony of its expert.

As the party seeking to recover, the plaintiffs had the burden not only to establish that they sustained damages but also to establish a reasonable basis for computation of those damages. (Schoeneweis v. Herrin (1982), 110 Ill. App. 3d 800, 443 N.E.2d 36.) A reviewing court will not disturb the trial court’s findings as to damages unless those findings are manifestly against the weight of the evidence. Finance America Commercial Corp. v. Econo Coach, Inc. (1983), 118 Ill. App. 3d 385, 454 N.E.2d 1127.

Through the testimony and exhibits proffered by the plaintiffs, the plaintiffs presented a reasonable method for computing the damages sustained. The trial court found the plaintiffs had proven the amount of their damages by a preponderance of the evidence. On review of the record, we hold this finding is not against the manifest weight of the evidence. The theory offered by the defendant’s expert, William Barrick, was rebutted by the evidence presented by the plaintiffs. On review, we find the trial court correctly rejected Barrick’s novel theory that city employees were paid in advance prior to 1983 depending on the employees’ length of employment.

We find no merit to the defendant’s contention the plaintiffs’ evidence is based on the theory that plaintiffs have been paid in advance since 1984. The defendant argued at the trial on liability and before this court in the first appeal that all checks received in 1984, including the January 3, 1984, paycheck, were for work performed in 1984. The defendant asserted that the plaintiffs’ yearly salary was divided by 25 and that the plaintiffs received 25 checks in 1984, the last being on December 31, 1984. This court found the first IV2 paychecks received in 1983 were for work performed in 1982 and therefore a three-week shortfall resulted at the end of 1983.

Now on appeal the defendant contends the first IV2 paychecks received in 1984 covered the work performed during the last three weeks of 1983. If this contention were true, then the 25 paychecks received by the plaintiffs in 1984 would cover the period from December 10, 1983, to December 24, 1984, a period of 54 weeks. The defendant in effect would be stretching the plaintiffs’ yearly compensation over a period in excess of one year.

Nor is there any merit to the defendant’s contention that plaintiffs have asserted that they have been paid in advance continuously since 1984. The record only shows that the plaintiffs were paid in advance in the early part of 1984. By December 31, 1984, the plaintiffs were receiving paychecks approximately one week after the ending of the pay period the paycheck represented. The initial advanced payment had worked itself out by the end of 1984. Therefore the veiled threat, contained in the defendant’s brief, to dock current employees three weeks’ pay if the defendant is required to pay this judgment, is completely without support in the record. Based on the facts argued by the defendant at the liability phase, and found by this court in the first appeal, payment in advance occurred only during early 1984.

The defendant contends the trial court erred in awarding the plaintiffs prejudgment interest.

Generally, there is no right to recover prejudgment interest unless it is permitted by statute or there is an agreement between the parties. (Alguire v. Walker (1987), 154 Ill. App. 3d 438, 506 N.E.2d 1334.) However, on the facts of this case, we hold the award of prejudgment interest is supported by equitable principles. See Kozak v. Retirement Board of the Firemen’s Annuity & Benefit Fund (1984), 128 Ill. App. 3d 678, 470 N.E.2d 1293.

In the instant case, this litigation has continued for nearly eight years. The defendant has changed its stand on basic facts even in light of express findings by this court. The defendant has twisted the arguments of the plaintiffs and continuously attempted to reopen issues previously determined. This has caused delay and unreasonably complicated the issues before this court and the trial court. The defendant has had eight years to recover interest on the sum which rightly belonged to the plaintiffs. The plaintiffs in ton have lost the opportunity to earn interest on compensation for work they performed in 1983. Under these circumstances, we find the trial court did not abuse its discretion in awarding the plaintiffs prejudgment interest.

For the foregoing reasons, the judgment of the circuit court of Peoria County is affirmed. Upon the issuance of the mandate in this case, the defendant is to comply with the terms of the trial court’s order of distribution.

Affirmed.

BARRY and HAASE, JJ., concur.


text:
    BERNARD F. WHALEN et al., Plaintiffs-Appellees, v. JOSEPH H. WHALEN, in his capacity as Trustee, Defendant-Appellant.
    Third District
    No. 3 — 91—0092
    Opinion filed August 23, 1991.
    Claudon, Lloyd, Barnhart & Beal, Ltd., of Canton (James Lloyd, of counsel), for appellant.

      William H. Campbell and Linda L. Laugges, both of Keck, Mahin & Cate, of Peoria (Robert M. Riffle, of counsel), for appellees.
   JUSTICE McCUSKEY

delivered the opinion of the court:

The defendant, Joseph Whalen, testamentary trustee of the estate of Kathryn Joan Whalen, deceased, appeals the ruling of the trial court finding that plaintiffs are vested remaindermen entitled to an accounting from the trustee. We affirm.

Decedent was married to Joseph Whalen, the defendant, and they had five children, Bernard, Patrick, Barbara, Susan, and Kathleen. Bernard and Patrick are the plaintiffs in the present action.

Kathryn Joan Whalen died testate on March 12, 1980. Decedent’s will was admitted to probate on March 24, 1980. Defendant was appointed executor and trustee of the marital deduction trust and residual trust. These are two separate and distinct trusts created by decedent’s will. Defendant was granted a life estate in the income derived from both trusts with the right to withdraw such amounts of the corpus as he deemed necessary for his welfare, maintenance, and health.

Decedent’s will provided in pertinent part as follows:

“B. On the death of my husband, Joseph H. Whalen, or on my death if he predeceased me (hereinafter called the ‘division date’), the trustee shall distribute to my daughter, Kathleen Jo Whalen, if she is living, the sum of $50,000.00 ***.
C. I give the remaining assets in the Residuary Trust per stirpes to my children, share and share alike. Except as provided in subparagraph (4) below, the trustee immediately shall distribute each trust created for the descendants of a deceased child per stirpes to such descendants ***”. (Emphasis added.)

In 1990, plaintiffs filed a complaint for an accounting and other similar relief against defendant. The trial court determined that plaintiffs were vested remaindermen entitled by law to an accounting from defendant as to the activities of the residual trust. We agree.

Defendant argues that because he holds a life estate in the income and corpus of the residual trust, he does not have a duty to account to plaintiffs. There is no merit to this argument.

At common law, a trustee has a duty to render an accounting at reasonable times to the income beneficiaries and vested remainder-men. Bullis v. DuPage Trust Co. (1979), 72 Ill. App. 3d 927, 391 N.E.2d 227.

Illinois has recently adopted the Trusts and Trustees Act (the Act) (Ill. Rev. Stat. 1989, ch. 17, par. 1651 et seq.). Defendant maintains that the Act supersedes the common law and the trial court misapplied or disregarded the applicable provisions of the Act. Defendant makes particular reference to Section 11, which provides:

“Section 11. Accounts, (a) Every trustee at least annually shall furnish to the beneficiaries then entitled to receive or eligible to have the benefit of the income from the trust estate an account showing the receipts, disbursements and inventory of the trust estate.” Ill. Rev. Stat. 1989, ch. 17, par. 1681(a).

According to section 11, trustees owe a duty to account to the beneficiaries who are “then entitled to receive or eligible to have the benefit of the income from the trust estate.” (Ill. Rev. Stat. 1989, ch. 17, par. 1681(a).) Defendant insists that plaintiffs are not beneficiaries of the residual trust, nor vested remaindermen who would qualify for such an accounting. Therefore, the defendant argues the plaintiffs have no standing to maintain a cause of action requiring an accounting. We disagree. We find the plaintiffs to be vested remaindermen.

Under the common law, if plaintiffs are found to be vested remaindermen, defendant’s duty to account cannot be waived or modified and a court is empowered to compel a trustee to render an accounting. G. Bogert, Trusts & Trustees, §973 (2d ed. 1982).

The Illinois Supreme Court has defined the term “vested remainder” as follows:

“A vested remainder is one which throughout its continuance gives to the remainderman or his heirs the right to immediate possession whenever and however the preceding estate may determine.” Chicago Title & Trust Co. v. Shellaberger (1948), 399 Ill. 320, 334, 77 N.E.2d 675.

The Supreme Court also stated:

“And whenever the person who is to succeed to the estate in remainder is in being and is ascertained, and the event which by express limitation will terminate the preceding estate is certain to happen, the remainder is vested.” Dyslin v. Wolf (1950), 407 Ill. 532, 542, 96 N.E.2d 485.

In the present cause, both plaintiffs are in being and ascertainable. They are also ready to take immediate possession of their vested interest when the preceding life estate terminates. Plaintiffs possess a vested interest in the residue of the trust subject only to the life estate interest of the defendant. Even though plaintiffs may predecease defendant, that contingency does not defeat their vested interest. According to Fleshner v. Fleshner (1941), 378 Ill. 536, 541, 39 N.E.2d 9:

“The fact that the remainder-man may die before the life tenant and the remainder never become vested in possession, is not a test of whether the remainder is vested or contingent. It is not the uncertainty of the devise taking effect in possession that makes the remainder contingent, for that may occur in any case' of remainder, but the test is whether there is a present capacity to take effect in possession, if the life tenant dies or for any reason the life possession becomes vacant, which universally distinguishes a vested remainder from one that is contingent.”

In this case, the fact the total number of plaintiffs’ descendents may increase or decrease does not affect the legal status of plaintiffs’ vested remainder. This is especially true where as here the trust instrument mandates a per stirpes distribution of the assets of the residuary trust following the defendant’s death.

Finally, courts favor vesting a remainder interest at the earliest opportunity. Courts are reluctant to construe a will in a manner which contravenes this general rule. An example of this construction is contained in First Galesburg National Bank & Trust Co. v. Robinson (1986), 149 Ill. App. 3d 584, 500 N.E.2d 995. This court held:

“These rules compel a finding in this case that both sons of the grantors took a present right to the remainder interest upon execution of the trust agreement. In other words, the remainder was immediately vested, although enjoyment of the estate was postponed until the life estates of the grantors had terminated. To conclude that *** had only a contingent remainder unless he survived both his parents would read into the trust words of survivorship which plainly are not present.” 149 Ill. App. 3d at 586.

Accordingly, defendant owes a common law duty to account to the plaintiffs, who are clearly vested remaindermen with respect to the residue of the residual trust.

For the reasons indicated, the circuit court of McDonough County is affirmed.

Affirmed.

GORMAN and HAASE, JJ., concur.


author: JUSTICE BARRY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. STEVEN WOODS, Defendant-Appellee.
    Third District
    No. 3 — 90—0526
    Opinion filed August 23, 1991.
    William Herzog, State’s Attorney, of Kankakee (Rita Kennedy Mertel, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    No brief filed for appellee.
   JUSTICE BARRY

delivered the opinion of the court:

The State charged the defendant, Steven Woods, with unlawful possession of a controlled substance with the intent to deliver. The trial court subsequently granted the defendant’s motion to suppress the evidence seized from him during a police search. The State appeals.

Initially, we note that the defendant has not filed an appellee’s brief. However, since the record is simple and we can decide the disputed errors without his brief, we will address the merits of the appeal. First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493.

The record shows that on November 23, 1989, police lieutenant John Gerard prepared a “complaint for search warrant” requesting the issuance of a warrant to search the person of the defendant for evidence of drug violations. In support of the request, Lieutenant Gerard stated that within the past 24 hours he had observed one of his confidential informants buy cocaine from the defendant. Gerard noted that past information from the informant had always been current, reliable, and accurate. Besides buying cocaine from the defendant in this instance, the informant told Gerard that he had purchased cocaine from the defendant in the past. Based on these facts, Gerard believed there was more cocaine located on the person of the defendant.

The examining circuit judge found that Gerard’s complaint showed probable cause. He therefore issued a search warrant that same day, commanding the police to search the person of the defendant for evidence of drug violations.

Patrolman Matthew Adamson executed the warrant on November 26, 1989. During the search, he seized cocaine in 25 clear plastic baggies, $28, a pager, and car keys.

The trial court found that the search warrant was an anticipatory warrant. It further found that the warrant failed to set forth the necessary specific details regarding the future existence of cocaine on the defendant. In particular, the court stated that Lieutenant Gerard should have set forth information showing that the defendant was going to have cocaine on his person on a certain day at a certain time. Due to these deficiencies in the warrant, the court granted the defendant’s motion to suppress the evidence seized in the search.

On appeal, the State argues that the court erred in finding that the warrant was an anticipatory warrant. It further argues that the court erred in finding that the complaint for the search warrant failed to establish probable cause to believe the defendant would continue to have cocaine in his possession. We agree.

An anticipatory search warrant is a warrant based upon an affidavit showing probable cause that at some future time, but not presently, certain evidence of a crime will be located at a specified place. (2 W. LaFave, Search and Seizure §3.7(e), at 94 (2d ed. 1987).) Here, Lieutenant Gerard averred that the evidence of the crime was presently located on the defendant’s person. Further, the warrant was not issued for some future date, but rather allowed the police to immediately search the defendant. The fact that a couple of days passed before the police were able to locate and search the defendant did not transform the warrant into an anticipatory warrant. Rather, that fact merely went to the issue of whether the police diligently executed the warrant. Accordingly, we find applicable the general rules governing warrants to search a person for evidence of a continuing offense.

Probable cause for the issuance of a search warrant means simply that the facts and circumstances within the knowledge of the affiant, and of which he had reasonably trustworthy information, were sufficient in themselves to warrant a man of reasonable caution to believe the law was being violated and evidence of it was on the person to be searched. (People v. Velez (1990), 204 Ill. App. 3d 318, 562 N.E.2d 247.) Whether probable cause exists in a particular case depends on the totality of the circumstances (People v. Tisler (1984), 103 Ill. 2d 226, 469 N.E.2d 147), including the length of time between the drug purchase and the presentation of the complaint for search warrant (People v. Gant (1986), 150 Ill. App. 3d 180, 501 N.E.2d 355).

Here, Lieutenant Gerard gave particular facts concerning a controlled drug transaction between a reliable informant and the defendant. The transaction had occurred within 24 hours of the complaint for a warrant. At the time of the transaction, the defendant was carrying the cocaine on his person. Further, the informant had purchased cocaine from the defendant in the past. We find that these facts would warrant a man of reasonable caution to believe that the law was being violated and that evidence of it was on the defendant. Accordingly, we conclude that the trial court erred in finding that no probable cause existed for the issuance of the warrant and in suppressing the evidence seized.

The judgment of the circuit court of Kankakee County granting the defendant’s motion to suppress evidence is reversed and the cause is remanded for further proceedings.

Reversed and remanded.

HAASE and McCUSKEY, JJ., concur.


text:
      In re MARRIAGE OF VICKI R. BENSON, Petitioner-Appellant, and LOREN W. BENSON, Respondent-Appellee.
    Third District
    No. 3-91-0022
    Opinion filed August 23, 1991.
    Patricia M. Parker, of Reynolds, Murphy & Associates, of Peoria (G. Edward Murphy, of counsel), for appellant.
    Vonachen, Lawless, Trager & Slevin, of Peoria (John R. Pusey, of counsel), for appellee.
   JUSTICE HAASE

delivered the opinion of the court:

The defendant father, Loren W. Benson, filed a petition for modification of custody. Thereafter, the plaintiff mother, Vicki R. Benson, filed a petition seeking leave to remove the parties’ eight-year-old child, Jacob, from Illinois to Florida. The two petitions were tried together. The trial court granted Loren’s petition and transferred custody of the child to Loren. The court then found that Vicki’s petition was rendered moot by the court’s decision to modify custody. It further found that Vicki had not met her burden to prove that removal would be in the child’s best interest pursuant to section 609(a) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1989, ch. 40, par. 609(a)). The court subsequently denied Vicki’s motion to reconsider. She appeals.

The record shows that the parties were married on April 9, 1980. On May 10, 1982, the trial court dissolved the marriage. Pursuant to that order, the court awarded custody of the parties’ minor child to Vicki. The court granted Loren visitation rights on alternate weekends, holidays, and two weeks during the summer.

Following the dissolution of the marriage, the parties continued to reside in the Peoria area. Vicki was employed as a certified respiratory therapy technician at a Peoria hospital and Loren was employed at Caterpillar. In October of 1985, Vicki took a leave of absence from her employment at the hospital and enlisted in the United States Navy. Navy regulations apparently prevented her from retaining physical custody of her child while she underwent basic training. The parties agreed that Vicki’s parents should have custody of the child. From a previous marriage, Vicki had another child named Jennifer. Jennifer also resided with Vicki’s parents.

After her training was completed, physical custody of Jacob was restored to Vicki. At that time, Vicki had three options regarding the location of her next tour of duty. The parties agreed that Jacksonville, Florida, would be the best option. Loren then gave Vicki written permission to remove Jacob from Illinois to Florida. In January of 1989, Vicki, Jacob, and Jennifer moved to Florida. Jennifer, however, moved back to the Peoria area after her school year ended. In the fall of 1989, Loren requested that Vicki return Jacob to Illinois around Christmastime. Vicki responded that she would not bring him back. She also told Loren that she would be stationed in Bermuda and Iceland for six months in 1990 and would leave Jacob with a friend during that time.

In December of 1989, Loren filed his petition to modify custody, alleging that Vicki did not have his permission to remove the child from Illinois on a permanent basis. He also alleged in his petition that since the original custody determination, a change in the circumstances of the parties and the child had occurred, and it was thus in the child’s best interests to permanently transfer custody to him.

In January of 1990, the trial court granted Vicki a continuance conditioned upon the award of temporary custody of the child to Loren while Vicki was in Bermuda. The court’s order further provided that when Vicki returned to her permanent duty station, custody would revert to her.

In August of 1990, Vicki returned to Florida with Jacob, where the child enrolled in school. Thereafter, Vicki brought her petition to remove the child from Illinois to Florida. Her petition was based on her desire to end her tour of duty with the Navy and to continue to live in Florida.

On November 2, 1990, a hearing was held on the parties’ petitions. Thereafter, the trial court entered an order granting Loren’s petition to modify and denying Vicki’s petition to remove. In modifying custody, the court found that since the prior judgment Vicki had been away from the child for substantial periods of time because of her career choices while Loren had maintained a close and continuing relationship with the child. The court noted that Vicki had testified that if her removal petition was not granted she would not return to a geographical area close to Loren. In that regard, Vicki testified that she would move to southern Illinois, even though she had no acquaintances or job prospects in that area. On that basis, • the court found that Vicki lacked a willingness to facilitate a close and continuing relationship between Loren and the child. The court further found that Loren’s residence was close to all of the child’s significant relatives, particularly the child’s maternal grandparents, who spent considerable time rearing the child and have a close and loving relationship with him.

The trial court then found that its decision to modify custody rendered moot Vicki’s removal petition. The court further found that she had not met her burden of proof that removal would be in the child’s best interests in accordance with In re Marriage of Eckert (1988), 119 Ill. 2d 316, 518 N.E.2d 1041.

On appeal, Vicki initially argues that the trial court erred in conducting a joint evidentiary hearing on the two petitions and ruling on Loren’s petition to modify before ruling on Vicki’s petition to remove. In support of her position, Vicki relies on In re Marriage of Taylor (1990), 202 Ill. App. 3d 740, 559 N.E.2d 1150.

In Taylor, the father’s petition for a change in physical custody was predicated upon the mother’s anticipated move to Virginia. There, the trial court consolidated into one hearing the father’s petition to change custody and the mother’s petition to remove. The court then issued one order discussing its findings of fact and its decision denying the mother’s petition and allowing the father’s petition. The Taylor court found that the trial court should have ruled on the petition to remove first. If the court denied that petition, the father would then have been required to prove, by clear and convincing evidence, that another change (other than the move to Virginia) had occurred such that the child should be removed from the mother’s physical custody.

We find that Taylor is controlling in the present case and required that the trial court rule on the removal petition before the custody petition. Here, the trial court ruled on the custody petition before reaching the merits of the removal petition. We are unable to say that the trial court’s determination regarding the custody petition was not affected by the removal petition that remained unresolved.

Even though the trial court stated that Vicki’s petition was not predicated on Loren’s custody petition, we find that the record indicates otherwise. Although Loren’s petition was filed nine months before the removal petition, we do not find that fact conclusive. Loren’s petition was filed in direct response to Vicki’s refusal to return the child to Illinois. The filing of the removal petition in this case was thus inevitable. We find that under these circumstances the custody petition was predicated upon the removal petition and therefore this cause should be remanded for further proceedings consistent with Taylor. On remand, the trial court should consider the merits of the removal petition before ruling on the custody petition.

By our ruling, we do not mandate that the instant trial court conduct separate hearings on the two petitions. We do note, however, that problems do arise in consolidated section 609 and section 610(b) hearings. We note, as did the Taylor court, that a judge is required to hear evidence related to two different statutory enactments and must be careful not to allow evidence proper for one petition to impact upon the decision as to the other petition. We recognize that there may be cases where separate hearings should be conducted to accomplish this. We also recognize that if a custody petition is unrelated to a removal petition, a trial court would not be required to rule on the removal petition first.

Based on the foregoing, we vacate the judgment of the circuit court of Tazewell County and remand the cause for further proceedings consistent with both this opinion and In re Marriage of Taylor.

Vacated and remanded.

SLATER and STOUDER, JJ., concur.


text:
    COLCHESTER STATE BANK, Plaintiff-Appellee, v. GERALD R. McINTYRE, Defendant-Appellant.
    Third District
    No. 3 — 90—0902
    Opinion filed August 23, 1991.
    Johnson, Frank, Frederick & Walsh, of Urbana (Stephen R. Frank, of counsel), for appellant.
    March & McMillan, of Macomb (John D. McMillan, of counsel), for appellee.
   JUSTICE HAASE

delivered the opinion of the court:

The plaintiff, Colchester State Bank, brought this action against the defendant, Gerald R. McIntyre, to recover damages incurred by the Bank as a result of the defendant allegedly making loans greater than the legal lending limit allowed by section 32 of the Illinois Banking Act (Ill. Rev. Stat. 1983, ch. 17, par. 339). The trial court granted the plaintiff’s motion for summary judgment. The defendant appeals.

The plaintiff’s three-count complaint was based on sections 32 and 39 of the Illinois Banking Act (Act) (Ill. Rev. Stat. 1981, ch. 17, pars. 339, 349). Section 39 of the Act provided that every director or officer of any State bank who violates or participates in, or assents to a violation of section 32 shall be personally liable for all the damages the bank sustained as a consequence of such violation. Section 32 of the Act provided that “[t]he liabilities to any state bank of any person for money borrowed *** shall at no time exceed fifteen percent of the amount of capital of such bank, and fifteen percent of its surplus.” Ill. Rev. Stat. 1981, ch. 17, par. 339.

According to the plaintiff’s affidavits, the combined capital and surplus of the bank was $220,000. Thus, the plaintiff bank’s legal lending limit for the purposes of section 32 of the Act was $33,000.

The record reveals that the defendant was elected to the board of directors of the plaintiff bank on March 20, 1979. On June 8, 1982, he was elected the bank’s president and chairman of the board.

From December 18, 1980, through April 17, 1981, Affiliated Printing Co. (Affiliated) executed a series of promissory notes to the plaintiff totaling $17,500. The defendant and Phillip Meisinger were each 10% shareholders in the company. On July 6, 1981, Meisinger borrowed $17,000 from the plaintiff. On August 10, 1981, Affiliated executed a promissory note for $75,000 in favor of the plaintiff, which was due February 6, 1982. On August 13, 1981, Middletown State Bank (Middletown) and the plaintiff entered into a participation agreement regarding the $75,000 loan to Affiliated. Middletown’s portion of the agreement was $50,000 and the plaintiff’s portion was $25,000. On August 20, 1981, Affiliated used the proceeds from the $75,000 loan to repay the principal accrued on the previously executed notes.

On June 30, 1982, Meisinger, as chairman of the board of Affiliated and individually, executed a promissory note for $84,644.76 to the plaintiff. At that time, Meisinger already owed the Bank $9,548.63 from the $17,000 loan. On September 27, 1982, Affiliated applied the proceeds from the $84,644.76 loan to the outstanding indebtedness on the $75,000 loan that it had secured on August 10, 1981.

On June 27, 1982, the plaintiff loaned Larry and Carol Baumgardner $160,000. At that time, the plaintiff Bank entered into participation agreements with Illinois National Bank of Springfield (INBS) and Middletown. Participation was as follows: INBS $88,500, Middletown $38,500, and the plaintiff $33,000. The participation certificate signed by INBS and the plaintiff did not provide for a pro rata participation. Rather, it provided that any payments received by the plaintiff would be applied toward the reduction of the participation by INBS.

On May 31, 1983, the plaintiff loaned the Baumgardners an additional $23,000. As a result, an additional participation agreement was executed by the plaintiff and INBS. INBS participated to the extent of $20,340 and the plaintiff to the extent of $2,660. The participation agreement did not provide for a pro rata participation.

On July 8, 1983, the Baumgardners acquired a new loan from the plaintiff for $150,000. This loan was made to rewrite the previous $160,000 loan and was payable upon demand. It reflected that $10,000 had been paid on the principal of the previous loan and that the accrued interest had been paid through June 26, 1983. The new loan document further showed that the defendant was the bank officer responsible for making the loan.

The defendant obtained a participation agreement from INBS regarding the $150,000 renewal loan. INBS agreed to participate to the extent of $82,969. No other participation agreements were obtained, leaving the plaintiff the sole lender of $67,031 of the $150,000 loan.

According to the defendant, Middletown orally agreed to participate in the $150,000 loan. Middletown, however, refused to execute such an agreement. In that regard, a Menard County circuit court judge found that Middletown refused to participate in the loan.

Thereafter, the Baumgardner loans were never recovered. The plaintiff, however, made numerous efforts to mitigate its damages and succeeded in limiting them to $43,907.29.

The trial court granted summary judgment in favor of the plaintiff on all three counts of its complaint. Count I related to the Baumgardner loan, and the trial court entered judgment thereon, awarding the plaintiff $43,907.29, plus interest and costs of the suit. Counts II and III of the plaintiffs complaint concerned the loans to Affiliated and Meisinger. Based on counts II and III, the court awarded the plaintiff damages of $177,441.70, plus interest and costs of the suit.

On appeal, the defendant argues that the trial court erred in granting the plaintiff’s motion for summary judgment. In that regard, he initially contends that section 32 of the Act should be interpreted to provide that a bank president must knowingly or negligently violate the statute before liability may be imposed.

At the outset, we note that this appears to be an issue of first impression in Illinois. Section 39 of the Act provides that a director may be held personally liable if he violates, participates in, or assents to a violation of section 32 of the Act. The statute does not provide that the violation must be knowingly or negligently done. It merely provides that the director have some personal involvement in the violation. If the legislature had intended that liability rest on a knowing or negligent violation, it would have stated so. Since the Illinois Banking Act does not expressly require a “knowing” violation, it creates virtual strict liability. All that section 39 requires for liability to attach is for there to have been a violation, participation in a violation, or assent to a violation of section 32. The legislature clearly intended sections 32 and 39 of the Act be strictly enforced to give effect to the long-standing policy that officers and directors of banks should not approve overline loans.

Here, we are not confronted with a situation in which a director had no personal involvement with overline loans. Rather, the defendant in the present case clearly participated in a violation of the Act. Accordingly, we find the defendant’s argument unpersuasive.

Regarding the Baumgardner loans, the defendant contends that they were not excessive because the plaintiff did not allege that the initial loan made by the previous director to the Baumgardners was excessive.

We disagree. The initial loan did not exceed the legal limit. It was only when the defendant renewed the initial loan on July 8, 1983, without a sufficient participation agreement that the loan became excessive. The defendant argues that the court should not have relied on the fact that a previous court had found that Middletown refused to participate in the loan. We find, however, that even if there was an oral agreement to participate as the defendant suggests, it would still not relieve the defendant from liability under the Act. The defendant cannot rely on an alleged participation agreement that has not been executed.

Regarding the Affiliated and Meisinger loans, the defendant argues that the $84,644.76 loan was a renewal of credit already granted to Affiliated and that Meisinger’s signature put the Bank in a stronger legal position. He contends that since his actions were an aid to the Bank he should not be held liable under the Act.

We find that the defendant’s argument is without merit. The Act prohibits bank presidents from making overline loans even if their motive is to work out previously existing bad loans. Moreover, the defendant’s argument fails to note that the previous $75,000 loan involved a participation agreement which kept it under the plaintiff’s legal lending limit. However, the second loan for $84,644.76 did not contain such an agreement. Thus, unlike the initial loan, the $84,644.76 loan vastly exceeded the $33,000 legal lending limit.

Accordingly, the judgment of the circuit court of McDonough County is affirmed.

Affirmed.

BARRY and GORMAN, JJ., concur.