text:
      In re ESTATE OF FRANK GOODLETT, Deceased (Walter James, Ex’r of the Estate of Frank Goodlett, Deceased, Petitioner-Appellant, v. Ann Kent Goodlett, Respondent-Appellee). — In re ESTATE OF FRANK GOODLETT, Deceased (Ann Kent Goodlett, Petitioner-Appellant, v. Walter James, Ex’r of the Estate of Frank Goodlett, Deceased, Respondent-Appellee).
    Second District
    Nos. 2 — 91—0153, 2 — 91—0322 cons.
    Opinion filed February 14, 1992.

      Paul W. Kaiser, of Waukegan, for estate of Frank Goodlett.
    Betty Burns Paden, of Evanston, for Ann Goodlett.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

Walter James, Jr., executor of the estate of decedent Frank Goodlett, appeals from the judgment of the circuit court of Lake County granting Frank’s widow, Ann Goodlett, her statutory share of Frank’s estate. Ann Goodlett appeals from the lower court’s order finding that she was not entitled to a surviving spouse’s award. As both appeals arose from the same cause in the lower court, we have consolidated the two cases for purposes of appeal.

On March 19, 1980, Frank executed a will leaving his entire estate to his former wife, Lillian M. Goodlett, or, if she did not survive him, to her son, Walter James, Jr. (James). Lillian died in January 1984.

On July 4, 1985, Frank married Ann Kent in Waukegan. At the time of their marriage Frank was 82 years of age and suffering from kidney disease. Ann was 77. Frank died on December 25, 1985, in Portland, Oregon, leaving Ann as the only heir surviving him.

As the executor of Frank’s will, James filed a petition for probate of the will and for letters testamentary on February 4, 1986. These documents were admitted to probate on that same date. On February 20, 1986, attorney Betty Burns Paden (Paden) filed her appearance and the appearance of Ann. On that same date Paden wrote Paul Kaiser, Jr. (Kaiser), attorney for James, inviting an offer from James for a quick buy out or settlement of Ann’s interest in the estate prior to probate. In a letter dated February 24, 1986, Kaiser replied to Pa-den’s offer, stating that he and James believed Ann was entitled to no more than her statutory share, which was offset by damage Ann had allegedly caused to a house owned by Frank. The house had been damaged considerably when water pipes froze after the gas had been turned off leaving the house without heat. James offered Ann $2,000 for her interest in the estate.

Paden replied to James’ offer on March 5, 1986, stating that Ann denied any responsibility for damage done to the house and rejecting Kaiser’s “meager” and “ridiculous” offer of $2,000 as Ann’s share of Frank’s estate. Paden related that Ann “will wait until the house is sold for the fair market value.”

On May 5, 1986, Paden filed a claim, signed by Ann, in the amount of $2,341.34 against the estate for funeral and other expenses paid by Ann. On that same date Paden wrote Kaiser of this claim and requested compensation. Ann’s claim was scheduled for a hearing on July 18,1986.

Prior to their court appearance on July 18, Kaiser and James met with Paden. According to Paden, James and Kaiser said they intended to give Ann her share of the estate. Paden related that James commented that he had boats and plenty of money and did not need to take money away from Ann. Paden stated that because the estate was small, Kaiser suggested the parties settle out of court. It was Pa-den’s testimony that she subsequently spoke with Kaiser before the September deadline for filing for a renunciation and that they negotiated regarding Ann’s statutory share.

In testimony given by James during his evidence deposition, James denied ever telling Paden at the July 18 meeting that he had plenty of money or that he had everything he needed and, therefore, did not need Frank’s money. James stated that the only topic of conversation at the meeting was Ann’s expense claim against the estate.

Kaiser’s recollection of the July 18 meeting with Paden was that no conversation occurred concerning Ann’s share of the estate nor was any agreement reached. Additionally, Kaiser testified that no renunciation of the will was mentioned and no discussion regarding waiver of the statutory requirements pertaining to renunciation occurred during any of his contacts with Paden.

At the July 18 meeting with Paden, Kaiser informed Paden that he no longer considered Ann responsible for the damage to decedent’s house and that he had filed a suit against the North Shore Gas Company which, Kaiser believed, was responsible. Kaiser also told Paden that he and James considered some of the items listed in Ann’s claim against the estate as not legitimate. When Paden and Kaiser appeared in court on July 18, the two attorneys presented their positions concerning Ann’s claim. The court suggested the parties settle the claim for $1,000. Subsequently, the parties did agree to settle for I that amount. Kaiser informed Paden that he would have an order entered in the amount of $1,000 and would send her a copy, which he did.

On August 1, 1986, James, as executor, received an offer to purchase Frank’s damaged residence for $15,000. Having received a request from Kaiser that Ann agree to the purchase price, Paden wrote Kaiser on August 13, 1986, asking Kaiser for a current appraisal on the property. Also, Paden advised Kaiser that Ann should be apprised of the lawsuit initiated by Kaiser against the gas company. On the same date Kaiser sent a copy of the real estate offer to Paden.

On August 18 and August 21, 1986, Kaiser wrote Paden requesting that she contact him regarding the prospective sale of the house and the lawsuit against the gas company.

On September 2, 1986, Paden wrote Ann informing Ann that, if she agreed, the estate would be settled out of court and Ann would receive the funeral expenses for Frank and her “widow’s share of the estate.” Paden told Ann that Frank’s house was going to be sold, that the gas company was going to be sued for the damage to the residence, that the amount to be recovered would not be large, and that, therefore, it would be best to settle the estate out of court.

On September 30, 1986, Paden wrote Kaiser seeking a copy of the lawsuit against the gas company and a copy of the appraisal of the house which she had earlier requested. In a letter dated October 7, 1986, Kaiser enclosed a copy of the lawsuit and responded to Paden’s appraisal request by explaining that he had not obtained an appraisal of the house because the sale had not occurred.

On March 25, 1987, Kaiser wrote Paden informing her that he needed to discuss litigation matters against the gas company with her and requesting that Paden contact him. On May 4 Paden wrote Kaiser conveying information she had received from Ann regarding Ann’s dealings and conversations with the gas company regarding the damaged residence and Ann’s availability to testify.

In June 1987, Kaiser learned that Ann had not filed a renunciation. Following a deposition in the lawsuit against the North Shore Gas Company, the attorney for the gas company made an inquiry regarding the identity of the interested parties in the estate. Kaiser explained that James was the sole beneficiary under the will and that Ann, as widow, possessed the right to renounce the will and receive a statutory one-half share of the estate. When asked if Ann had renounced, Kaiser replied that he assumed she had, as she had everything to gain and nothing to lose by renouncing. Later, Kaiser checked and discovered that Ann had not filed a renunciation. A month or two later Kaiser informed James, who had been out of town during this time, about the necessity for a timely filing of the renunciation and that Ann had not yet filed.

On September 11, 1987, Kaiser sent Paden a check for $1,000 in settlement of Ann’s expense claim against the estate and a copy of James’ final report as executor of Frank’s estate to be filed on September 18. Ann filed a petition to vacate this final report which was allowed to stand as her objections to the report. That petition was later amended and filed on February 16,1988.

On March 15, 1988, Robert Smith was allowed to file his additional appearance on Ann’s behalf. On July 12, 1988, Ann by her attorneys Paden and Smith filed her objections to the executor’s final report. Ann sought her statutory share of the estate and blamed her failure to file a renunciation of decedent’s will on the actions and negotiations of the executor’s attorney in leading Ann to believe that she would receive her share. In his reply to Ann’s objections, James admitted that he refused to pay Ann the share she would have been entitled to had she renounced the will as provided by statute. On April 3,1990, Ann filed a renunciation.

Also on April 3, Ann filed an application for surviving spouse’s award. (Ill. Rev. Stat. 1989, ch. 110½, par. 15—1.) James moved to deny Ann’s application for surviving spouse’s award, asserting that prior to his death Frank had changed his domicile from Illinois to Oregon and that, therefore, at the time of his death Frank was not a resident of Illinois (as required under section 15—1 of the Probate Act of 1975). On May 16, 1990, the trial court denied Ann’s application for surviving spouse’s award, finding that Frank was domiciled in Oregon when he died. Subsequently, Ann moved to vacate this judgment.

Following a hearing on September 24, 1990, the trial court denied Ann’s motion to reconsider the court’s disallowance of her surviving spouse’s award. The court did grant, however, Ann’s petition for her statutory share of the estate, finding that because the negotiations and discussions between Paden and Kaiser were pursued with the idea that Ann would share in the estate, James was estopped from precluding Ann from taking her share based on her failure to timely renounce. In an amended order, entered December 18, 1990, the court made additional findings nunc pro tunc as of September 24, 1990. On January 14, 1991, the court denied James’ motion to vacate these prior orders.

On February 1, 1991, James filed a notice of appeal, praying that the lower court’s orders of September 24, 1990, December 18, 1990, and January 14, 1991, be reversed. On February 22, 1991, Ann moved to dismiss James’ appeal based on Supreme Court Rule 309 (134 Ill. 2d R. 309). The trial court denied Ann’s motion, finding that Ann had no standing to present a motion pursuant to Supreme Court Rule 309.

On March 19, 1991, Ann filed a notice of appeal from the trial court’s findings of May 16, 1990, and September 24, 1990, denying her a surviving spouse’s award. We, however, find that we have no jurisdiction to hear Ann’s appeal.

Illinois Supreme Court Rule 303(a)(3) provides:

“If a timely notice of appeal is filed and served by a party, any other party, within 10 days after service upon him, or within 30 days of the entry of the order disposing of the last pending post-trial motion, whichever is later, may join in the appeal, appeal separately, or cross-appeal by filing a notice of appeal, indicating which type of appeal is being taken.” (134 Ill. 2d R. 303(a)(3).)

In the instant case Ann was served with notice of the executor’s appeal on February 4, 1990. Ann filed her separate appeal on March 19, 1990. As is readily apparent from this filing date, Ann’s notice was not filed within 10 days after service upon her of the executor’s notice of appeal. To be timely filed, therefore, Ann’s petition must have been filed within 30 days of the entry of the order disposing of the last pending post-trial motion. Here, that order occurred on January 14, 1991, when the court denied the executor’s motion to vacate the court’s prior September 24, 1991, and December 18, 1991, orders finding that Ann was entitled to her statutory share of the estate. These prior orders also denied Ann’s motion for reconsideration of the denial of a surviving spouse’s award. Ann, however, failed to file her notice of appeal within 30 days of the entry of the January 14 order, the last pending post-trial motion in the instant case.

Although both James and Ann filed motions after the January 14 order, neither motion constituted a post-trial motion. Ann’s motion was a motion to dismiss James’ appeal. The motion, however, cannot be considered a post-trial motion. A post-trial motion must be one which specifically requests one or more of the statutorily authorized types of relief consisting of rehearing, retrial, modification or vacation of the judgment. (Lewis v. Loyola University (1986), 149 Ill. App. 3d 88, 92.) Ann’s motion to dismiss the appeal failed to specify any of these forms of relief. Rather, the only relief requested was dismissal of James’ appeal. Thus, the motion could not be deemed a post-trial motion.

Parenthetically, Ann’s request for dismissal was inappropriately based on Supreme Court Rule 309 (134 Ill. 2d R. 309). Supreme Court Rule 309 allows dismissal of an appeal by the party bringing the appeal, James in this instance, or on stipulation of the parties. Neither of those situations occurred here.

Even if, however, Ann’s motion to dismiss the executor’s appeal were considered a post-trial motion, we would not have jurisdiction because the motion, filed on February 22, 1991, and later amended on February 27, 1991, was not brought within 30 days of the January 14, 1991, judgment disposing of the case.

In her motion to dismiss the executor’s appeal Ann stated that the executor had not yet filed a final amended report within 45 days of January 14, 1991, as required by the trial court’s order of that date. Subsequent to Ann’s motion to dismiss, James filed, on March 5, 1991, a motion to stay proceedings, i.e., to stay the filing of the final account of the estate pending appeal. The trial court ordered that stay on March 11, 1991. Orders entered by a trial court after the filing of a notice of appeal are valid if substantive issues on appeal are not affected and if the nature of the appeal is not altered. (Homeowners Organized to Protect the Environment, Inc. v. First National Bank (1988), 167 Ill. App. 3d 714, 720.) Here, the order staying the enforcement of the judgment was a matter arising independent of and collateral to the court’s judgment and did not affect the issues on appeal or change the nature of the appeal. James’ motion to stay the court’s final order did not attack the final judgment but, rather, asked the court to stay enforcement of the order pending appeal. Thus, the motion was not a post-trial motion for purposes of extending the time for filing a notice of appeal until entry of the order disposing of the motion.

Ann’s March 19, 1991, notice of appeal, therefore, was not brought within 30 days of the court’s order disposing of the last pending post-trial motion, as that order was entered on January 14, 1991, and not on February 27, 1991, when the court denied Ann’s dismissal of James’ appeal, or on March 11, 1991, when the court stayed the probate proceedings pending appeal.

Failure to file a timely notice of appeal is jurisdictional, and it is not within this court’s authority to overlook Ann’s failure to comply with the rules of civil procedure. (Kotalik v. Jensen (1990), 201 Ill. App. 3d 838, 842.) Ann’s failure to comply with the requirements of a timely notice of appeal requires us to dismiss her appeal for lack of jurisdiction. This court is, however, not deprived of its jurisdiction to review the issues raised by James in his appeal. His notice of appeal was timely filed on February 1, 1991, within 30 days of the entry of the court’s January 14, 1991, order disposing of the last pending post-trial motion, i.e., James’ post-trial motion to vacate and set aside the court’s order of September 24, 1990, and amended order of December 18,1990.

In regard to his appeal, James has filed in this court a motion to strike portions of Ann’s brief, which James alleges pertain to matters extraneous to the record. It is James’ position that James’ counsel, Paul Kaiser, and Ann’s additional counsel, Robert Smith, agreed that certain documents referred to in Ann’s brief were superseded by subsequent documents filed with the court and that the court was informed of this agreement. According to James, these superseded documents should not have been included in the common-law record and were not among those specifically requested by Kaiser for inclusion in the record. Ann has filed objections to James’ motion to strike, and we ordered the motion and objections to be taken with the case.

Supreme Court Rule 321 (134 Ill. 2d. R. 321), which pertains to the contents of the record on appeal, provides in relevant part:

“The record on appeal shall consist of the judgment appealed from, the notice of appeal, and the entire original common law trial court record, unless the parties stipulate for, or the trial court, after notice and hearing, or the reviewing court, orders less.” (134 Ill. 2d R. 321.)

Thus, unless the parties stipulated for less than the entire common-law record to be included as the record on appeal, or the trial court orders less, the original common-law trial court record will be transmitted to the reviewing court as part of the record on appeal. 134 Ill. 2d R. 321, Committee Comments.

Here, no evidence exists in the record that the trial court ordered less or that the parties stipulated for less. Although James maintains that Ann’s counsel, Smith, agreed that certain documents superseded others filed with the case, the affidavit to this effect (prepared by attorney Kaiser) was never signed by Smith. Additionally, the trial court’s orders pertaining to the merits of this appeal demonstrate that the court, in reaching its decisions, considered the documents which James alleges should have been excluded from the record on appeal. Thus, James has provided no evidence that the court ordered less or that the parties stipulated for less than the transmission of the entire original common-law record to this court. We, therefore, deny his motion to strike those portions of Ann’s brief referring to documents which James maintains should not have been included in the record on appeal. We now proceed to a discussion of James’ issues and our disposition thereof.

On appeal, James argues the trial court erred in finding that he was estopped from asserting that the time-limiting provisions of section 2—8(b) of the Probate Act of 1975 (the Act) (Ill. Rev. Stat. 1989, ch. 110½, par. 2—8(b)) barred Ann’s right to a statutory share of Frank’s estate. Section 2—8(b) of the Act provides:

“In order to renounce a will, the testator’s surviving spouse must file in the court in which the will was admitted to probate a written instrument signed by the surviving spouse and declaring the renunciation. The time of filing the instrument is: (1) within 7 months after the admission of the will to probate or (2) within such further time as may be allowed by the court if, within 7 months after the admission of the will to probate or before the expiration of any extended period, the surviving spouse files a petition therefor setting forth that litigation is pending that affects the share of the surviving spouse in the estate. The filing of the instrument is a complete bar to any claim of the surviving spouse under the will.” Ill. Rev. Stat. 1989, ch. 110½, par. 2—8(b).

James maintains the time-limiting provision of section 2—8, requiring a surviving spouse to file a renunciation of a will within seven months after the admission of the will to probate, is not an ordinary statute of limitations. Rather, James asserts, the provision is jurisdictional because the time limitation goes to the existence of the right itself and is, therefore, not subject to tolling by the doctrine of estoppel. Conversely, Ann argues that the time limitation constitutes a statute of limitations instead of a jurisdictional prerequisite and that, under appropriate circumstances, equitable tolling, waiver, and estoppel are available to excuse or extend the filing time.

In Fredman Brothers Furniture Co. v. Department of Revenue (1985), 109 Ill. 2d 202, our supreme court set forth the significant distinction which exists between statutes of limitations and statutes that both confer jurisdiction on a court and fix a time within which such jurisdiction may be exercised. The court stated:

“Statutes of limitation only fix the time within which the remedy for a particular wrong may be sought. [Citation.] They ‘are procedural in nature [citations] and are not designed to alter substantive rights ***.’ Wilson v. Bishop (1980), 82 Ill. 2d 364, 373.
On the other hand, ‘statutes which create a substantive right unknown to the common law and in which time is made an inherent element of the right so created, are not statutes of limitation.’ (Smith v. Toman (1938), 368 Ill. 414, 420.) Such a time period ‘is more than an ordinary statute of limitations’ (North Side Sash & Door Co. v. Hecht (1920), 295 Ill. 515, 519); it ‘is a condition of the *** liability itself and not of the remedy, alone. *** It goes to the existence of the right itself.’ (295 Ill. 515, 519-20.) Such a provision is a condition precedent to the plaintiff’s right to seek a remedy. [Citations.] Such statutes set forth the requirements for bringing the right to seek a remedy into existence. They do not speak of commencing an action after the right to do so has accrued. They are jurisdictional, not mandatory.” 109 Ill. 2d at 209-10.

Our research has revealed several cases in which the courts have found that the time requirement of section 2—8(b) is mandatory. In In re Estate of Rosene (1978), 66 Ill. App. 3d 999, a widow failed to file a renunciation within the statutory period although she knew of her right to renounce and was apparently not defrauded by the executor or relatives of the decedent. This court found no basis upon which to extend the statutory seven-month limitation and held that the provisions of section 2—8(b) are mandatory, not directory. 66 Ill. App. 3d at 1001.

Likewise, in In re Estate of Duncan (1988), 171 Ill. App. 3d 594, the court stated that the provisions of section 2—8 governing renunciation are mandatory, not directory, and that the trial court does not have discretion to deviate from the statutory prescriptions therein. Accordingly, the court found that appellee’s failure to renounce the will within the seven-month statutory period acted as an acceptance of the terms of the will. 171 Ill. App. 3d at 598-600.

Because section 2—8(b) speaks of commencing an action of renunciation after the right to do so has occurred by the admission of the will to probate, we believe it is procedural in nature and not designed to alter a spouse’s substantive right to elect whether to take under the will or to renounce. The seven-month reference in section 2—8(b) merely refers to a time frame from which to commence the running of a limitation period, i.e., from the admission of the will to probate, and to the duration of that time, i.e., seven months. As such, the time limitation of section 2—8(b) does not constitute a condition precedent to the spouse’s right to renounce but merely fixes the time within which she can exercise that right. We conclude, as we did in Rosene, that the time period of section 2—8(b) is mandatory and find that it should be treated as a statute of limitations.

As concepts of equitable estoppel, tolling, and waiver usually apply to statutes of limitations (Larrance v. Human Rights Comm’n (1988), 166 Ill. App. 3d 224, 232-33), we next determine whether the circumstances here justify the application of any of these equitable doctrines.

Ann maintains that she and her attorney, Paden, were misled by the conduct of James and his attorney, Kaiser, into believing that James intended Ann to receive her statutory share of the estate.

Specifically, Ann argues that the correspondence and telephone calls that transpired between Paden and Kaiser led her to believe that James planned to give Ann her statutory share of the estate and that it was, therefore, unnecessary for her to file a timely renunciation of the will for her to receive that share. Those same letters and phone calls, however, also reflect Kaiser’s belief, albeit mistaken, that Ann had filed a timely renunciation. In her initial letter of February 20, 1986, to Kaiser, Paden wrote:

“As you know, Mrs. Goodlett is entitled eventhough [sic] she is not named in the will. What do you want to do? Do you want to work something out currently or move along in the Court?”

In response, Kaiser accused Ann in his letter of February 24, 1986, of being responsible for damage which occurred to a house owned by Frank. (Kaiser later discovered that the North Shore Gas Company was at fault and sued it for the damage.) In his February 24 letter Kaiser referred to the diminution in “the value of Mrs. Goodlett’s share of the property” (as a result of damage to the property) and that “my client [James] and I are of the view that she is entitled to no more than her statutory share, which is offset by the damage which my client has suffered by reason of her negligence.” In so stating, Ann asserts that Kaiser acknowledged that she was entitled to her statutory share of Frank’s property.

Indeed, Kaiser did acknowledge that fact, but nothing more. It cannot be said that by such an acknowledgment Kaiser induced Ann not to file a renunciation. Rather, we believe from the tone of Paden’s February 20 letter that it could be equally said that she misled Kaiser into assuming that Ann was aware of her right to renounce Frank’s will and had filed, or would be soon filing, a renunciation.

It was Paden's testimony at a hearing conducted on the renunciation issue that when she met with Kaiser and James on July 18, 1986, prior to a hearing on a claim Ann had against the estate, both men stated that they were going to give Ann her share of the estate. According to Paden, Kaiser suggested that the parties settle the matter out of court since the estate was so small. Additionally, at the meeting Kaiser told Paden he was going to sue the North Shore Gas Company (for damage to Frank’s house). Paden stated that after this meeting she had several conversations with Kaiser regarding Ann’s claim against the estate and Ann’s share (of the estate). Paden testified that she understood Ann’s “share” to mean what the statute (section 2—8) allowed her, i.e., one-half of the estate.

Conversely, Kaiser testified that during Paden’s meeting with James and him, no conversation occurred concerning Ann’s share of the estate or renunciation of Frank’s will. According to Kaiser, the conversation centered on Ann’s expense claim against the estate. Kaiser told Paden that he and James considered some of the items listed in her claim as not legitimate. Subsequently, the two attorneys appeared in court and presented their positions regarding Ann’s claim. The court suggested the parties settle the claim for $1,000. Correspondence in the record shows the parties later agreed to this settlement.

The testimony given by James during his evidence deposition supported Kaiser’s statement that the topic of conversation at the July 18 meeting was Ann’s expense claim against the estate. James emphatically denied that any conversation concerning Ann’s share of the estate occurred during this meeting.

Although the testimony of the attorneys was conflicting regarding the July 18 meeting, our review of that testimony, of James’ testimony at the evidence deposition, and of the correspondence which occurred between the attorneys fails to convince us that Ann was misled or defrauded in any way by Kaiser or James into believing that she was not required to file a renunciation to claim her statutory share of Frank’s estate. From the time Frank’s will was admitted to probate, Ann was represented by an attorney, and any fault in Ann’s failure to file a timely renunciation should be attributed to Ann and her attorney.

Under our previous finding in Rosene, we find that the statutory seven-month limitation set forth in section 2—8(b) is mandatory and that the trial court did not have discretion to deviate from that statutory prescription and apply equitable principles of estoppel where, as here, the widow was not defrauded by the executor or his attorney. Accordingly, the trial court erred in allowing Ann’s untimely renunciation of Frank’s will.

For the reasons stated above, the judgment granting Ann her statutory share of Frank’s estate is reversed. Ann’s appeal for application for a surviving spouse’s award is dismissed.

No. 2 — 91—0153, Reversed.

No. 2 — 91—0322, Dismissed.

DUNN and BOWMAN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE McLAREN

license: Public Domain

text:
      In re ESTATE OF EMIL REGELBRUGGE, Deceased (James Regelbrugge, Adm’r of the Estate of Emil Regelbrugge, Deceased, Petitioner-Appellee; Lucille Seyller et al., Respondents-Appellants).
    Second District
    No. 2 — 91—0483
    Opinion filed February 14, 1992.

      Joseph Michael Williams, of St. Charles, for appellants.
    Robert A. Chapski, of Law Office of Robert A. Chapski, Ltd., of Elgin (Randy K. Johnson, of counsel), for appellee.
   JUSTICE McLAREN

delivered the opinion of the court:

Emil Regelbrugge died intestate on September 18, 1988. James Regelbrugge, decedent’s son and administrator of his estate, initiated a citation proceeding on behalf of the estate pursuant to section 16—1 of the Probate Act (Ill. Rev. Stat. 1989, ch. 110½, par. 16—1) to recover the proceeds of three bank accounts which passed by survivor-ship to decedent’s sister, Josephine Wenberg, and his former wife, Lucille Seyller, citation respondents. After a bench trial, the court found that two of the accounts were validly transferred to respondents prior to decedent’s death. However, the court also found that respondents did not establish a valid joint tenancy as to the third account, No. 21215-9, by clear and convincing evidence. Accordingly, a judgment for possession of the account was entered in favor of the estate, and respondents were ordered to transfer the proceeds of the account to the estate. Respondents appeal from the portion of the judgment finding the third account to be estate property. We reverse and remand.

Respondents first contend that the the trial court employed an incorrect burden of proof in assessing the sufficiency of the evidence. They assert that the administrator carried the burden of establishing a prima facie case that the property in question belonged to the estate. However, the trial court placed the burden of proof on the respondents and found that they failed to prove the elements of a gift, stating as follows:

“[T]he evidence *** is conflicting. It does not allow the Court to come to a conclusion by a preponderance, let alone clear and convincing, that there was donative intent to transfer and consent [and] that these two were contemporaneous.
For example, there is throughout this whole thing the issue that there may have been a desire this account be for convenience. ***
There is the other issue of whether the intent has changed, as it seems to have been, if I believe the evidence over the course of the period of time. And there is also the question of when the transfer, if it was ever made, was finally made. If [decedent] at that time knew he [sic] what he was doing in terms of creating a joint account.”

One of the essential characteristics of a joint tenancy is the right of survivorship, that is, the right of the last surviving joint tenant to take the whole. (Harms v. Sprague (1984), 105 Ill. 2d 215, 224; In re Estate of Alpert (1983), 95 Ill. 2d 377, 381.) Upon the death of a joint tenant, title passes by operation of law to the survivor. Bonczkowski v. Kucharski (1958), 13 Ill. 2d 443, 451; In re Marriage of Dudek (1990), 201 Ill. App. 3d 995, 997.

Joint tenancies in personal property are governed by section 2 of the Joint Tenancy Act. (Ill. Rev. Stat. 1989, ch. 76, par. 2.) When a joint savings account is established by a preponderance of evidence in accordance with the statutory provisions, a rebuttable presumption arises that the party furnishing the funds for the account intends to make a gift to the joint tenants. Once an account is established, the burden shifts to the party challenging the account to present clear and convincing evidence that a joint tenancy account was not intended. (Murgic v. Granite City Trust & Savings Bank (1964), 31 Ill. 2d 587, 590-91; Frey v. Wubbena (1962), 26 Ill. 2d 62, 70-71; In re Estate of Martin (1990), 201 Ill. App. 3d 1061, 1065.) Because the parties in this case dispute that the account in issue was in joint tenancy, the trial court correctly found that the presumption spoken of in Murgic and Frey did not initially arise. (See O’Vadka v. Rend Lake Bank (1990), 203 Ill. App. 3d 1007, 1015.) Therefore, we find no error in requiring respondents to carry the initial burden of proving that a joint tenancy was created.

Next, respondents contend that the trial court erred in finding the account in issue to be property of the estate. A trial court’s finding that certain property belongs to the estate will not be disturbed on appeal unless it is against the manifest weight of the evidence. (In re Estate of Weisberg (1978), 62 Ill. App. 3d 578, 588.) To sustain the burden of proving a valid joint tenancy, respondents were required to prove that (1) an interest in personal property was created by means of a written instrument; (2) the instrument expresses the intent to create a joint tenancy by expressly providing that the property so held is subject to the rights of survivorship between the owners; and (3) the instrument complies with the requirements of a will as to definiteness of description of subject matter, parties, and certainty of its object. O’Vadka, 203 Ill. App. 3d at 1015; David v. Ridgely-Farmers Safe Deposit Co. (1950), 342 Ill. App. 96,109.

In an effort to make out a prima facie case, respondents called Diane Honeyman, assistant cashier of Harris Bank in St. Charles, as a witness. She presented a microfiche copy of the signature card on the account in issue. The card contained decedent’s signature and revealed that the account was opened in 1967 in his name only. Although Honeyman could not produce a card bearing Wenberg’s signature, she did produce a photocopy from the bank’s microfilm records containing the signatures of decedent and Wenberg, accompanied by a statement that Wenberg was made a joint tenant to the account on October 1, 1984. Her records also showed that Michele Tierney, Wen-berg’s daughter, became a party to the account in September 1988.

Because the original signature card bearing Wenberg’s signature was not produced, the estate contends that respondents failed to prove that a joint tenancy was created. Although the Joint Tenancy Act (Ill. Rev. Stat. 1989, ch. 76, par. 2) has been interpreted as requiring a signed agreement stating that the property is held in joint tenancy subject to rights to survivorship (Frey, 26 Ill. 2d at 69; Doubler v. Doubler (1952), 412 Ill. 597, 600; In re Estate of Wrage (1990), 194 Ill. App. 3d 117, 123), the existence of such agreement can be proved by evidence other than a signature card. It is appropriate to consider the facts surrounding the creation of the account and the circumstances and events occurring after. (Cf. In re Estate of Schneider (1955), 6 Ill. 2d 180, 187.) Relevant factors include the exercise of authority and control over the account and the survivor’s understanding of the account. In re Estate of Guzak (1979), 69 Ill. App. 3d 552, 555; see also In re Estate of Denler (1980), 80 Ill. App. 3d 1080,1087.

In this case, Wenberg testified that she signed a signature card for the account in issue in the fall of 1984 and that both she and decedent kept a savings book for the account. Although she stated that she deposited funds into the account but did not make any withdrawals for her personal use during her brother’s life, she claims to have understood that she was able to do so because both of their names were on the account. Furthermore, the savings books admitted into evidence revealed the names of both decedent and Wenberg on the account. Finally, Karin Rosenthal, head cashier of Harris Bank in St. Charles, produced records indicating that the bank began to send Wenberg statements on the account starting in the third quarter of 1984, which corroborated the testimony of both Wenberg and Honey-man.

Accordingly, we find that the evidence established that decedent intended to make Wenberg a joint tenant and did so by having her sign a signature card stating that the account was in joint tenancy. Although the sole testimony of a donee is of questionable credibility and should be carefully scrutinized (In re Estate of Hackenbroch (1962), 35 Ill. App. 2d 155, 162; In re Estate of Trampenau (1980), 88 Ill. App. 3d 690, 695), there was sufficient corroborative evidence in this case. At this point, the burden shifted to the estate to overcome the presumption of donative intent by clear and convincing evidence. (In re Estate of Lewis (1990), 193 Ill. App. 3d 316, 320.) Although the estate contends that Wenberg’s name was placed on the account for decedent’s convenience, there is no direct indication that this was the case. When Wenberg’s name was added to the account, decedent was living with Lucille Seyller, his former wife, who was a joint tenant with decedent on an account not at issue in this appeal. Seyller testified that she helped decedent by cashing checks and shopping for him. It is a reasonable conclusion that any account for his convenience would bear Seyller’s name, since she was in close proximity and admitted to using the money in the joint account between decedent and herself for their living expenses.

Thus, the only evidence indicating a lack of donative intent is that Wenberg did not withdraw funds for her personal use during decedent’s life. However, as stated in Lewis, “[q]uite often a person creating a joint account as a gift may hope the donee, joint owner, will not use the asset until the death of the donor.” (Lewis, 193 Ill. App. 3d at 323.) We find that the respondents sustained their burden that a joint tenancy was created as set forth herein. Additionally, we find that the estate failed to rebut that the account in issue was either for convenience or not intended as a gift by clear and convincing evidence. Therefore, the portion of the trial court’s judgment finding the account at issue to be estate property is against the manifest weight of the evidence.

Accordingly, the portion of the judgment finding account No. 21215-9 to be estate property and ordering respondents to turn over the proceeds to the estate is reversed, and the cause is remanded for further proceedings in conformance with this opinion.

Reversed and remanded.

GEIGER and NICKELS, JJ., concur.


author: JUSTICE SLATER

text:
    EUNICE EBBING, Plaintiff-Appellant, v. ROBERT PRENTICE et al., Defendants-Appellees.
    Third District
    No. 3 — 91—0275
    Opinion filed January 31, 1992.
    — Rehearing denied March 11,1992.

      Theodore A. Gilbert, of Karlin & Fleisher, and Linda A. Bryceland, of David A. Novoselsky & Associates, both of Chicago (David A. Novoselsky, of counsel), for appellant.
    D. Kendall Griffith, of Hinshaw & Culbertson, of Chicago, and Mark Rasmussen, of Peoria (Gary J. Bazydlo, of counsel), for appellee Robert Prentice.
    D. Kendall Griffith, of Hinshaw & Culbertson, of Chicago, and Gary M. Peplow and Bradley S. McMillan, both of Heyl, Royster, Voelker & Allen, and Mark Rasmussen, both of Peoria (Gary J. Bazydlo and Karen L. Kendall, of counsel), for appellee Robert R. Ayers.
   JUSTICE SLATER

delivered the opinion of the court:

Plaintiff Eunice Ebbing appeals from the dismissal of her medical malpractice complaint for failure to comply with section 2—622 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2—622). We reverse and remand.

According to plaintiff’s complaint, defendant doctors Robert Prentice and Robert Ayers performed hip replacement surgery on plaintiff and her leg was fractured as a result. Plaintiff filed a medical malpractice complaint against defendants Prentice, Ayers and Community Memorial Hospital on May 24, 1990. The complaint against the hospital was subsequently dismissed and the hospital is not a party to this appeal. Plaintiff’s original complaint did not include the affidavit or physician’s report required by section 2—622. That section provides, in part:

“§2—622. Healing art malpractice, (a) In any action, whether in tort, contract or otherwise, in which the plaintiff seeks damages for injuries or death by reason of medical, hospital, or other healing art malpractice, the plaintiff’s attorney or the plaintiff, if the plaintiff is proceeding pro se, shall file an affidavit, attached to the original and all copies of the complaint, declaring one of the following:
1. That the affiant has consulted and reviewed the facts of the case with a health professional who the affiant reasonably believes: (i) is knowledgeable in the relevant issues involved in the particular action; (ii) practices or has practiced within the last 6 years or teaches or has taught within the last 6 years in the same area of health care or medicine that is at issue in the particular action; and (iii) is qualified by experience or demonstrated competence in the subject of the case; that the reviewing health professional has determined in a written report, after a review of the medical record and other relevant material involved in the particular action that there is a reasonable and meritorious cause for the filing of such action; and that the affiant has concluded on the basis of the reviewing health professional’s review and consultation that there is a reasonable and meritorious cause for filing of such action. *** A copy of the written report, clearly identifying the plaintiff and the reasons for the reviewing health professional’s determination that a reasonable and meritorious cause for the filing of the action exists, must be attached to the affidavit, but information which would identify the reviewing health professional may be deleted from the copy so attached.
2. That the affiant was unable to obtain a consultation required by paragraph 1 because a statute of limitations would impair the action and the consultation required could not be obtained before the expiration of the statute of limitations. If an affidavit is executed pursuant to this paragraph, the certificate and written report required by paragraph 1 shall be filed within 90 days after the filing of the complaint. The defendant shall be excused from answering or otherwise pleading until 30 days after being served with a certificate required by paragraph 1.
***
(b) Where a certificate and written report are required pursuant to this Section a separate certificate and written report shall be filed as to each defendant who has been named in the complaint and shall be filed as to each defendant named at a later time.
* * *
(g) The failure to file a certificate required by this Section shall be grounds for dismissal under Section 2 — 619.” Ill. Rev. Stat. 1989, ch. 110, par. 2—622.

On July 23, 1990, defendant Dr. Prentice filed a motion to dismiss plaintiff’s complaint for failure to comply with section 2—622. Thereafter, defendant Dr. Ayers also filed a motion to dismiss based on two grounds: (1) that the complaint improperly commingled separate causes of action against Dr. Prentice and Dr. Ayers in a single count; and (2) that the complaint failed to comply with section 2—622. At the October 3, 1990, hearing on the motions, plaintiff made an oral motion for leave to file the affidavit and physician’s report required by section 2—622. The trial court continued plaintiff’s motion and also continued defendants’ motions to dismiss for failure to comply with section 2—622. The court granted Dr. Ayers’ motion to dismiss based on the commingling of causes of action and granted plaintiff leave to file an amended complaint.

On October 22, 1990, plaintiff filed an amended complaint alleging separate causes of action against the defendants and attached an affidavit and written physician’s report. On March 27, 1991, the trial court granted defendants’ motions to dismiss and dismissed the plaintiff’s complaint with prejudice. On appeal, plaintiff contends that the trial court abused its discretion in dismissing her complaint. We agree.

“[A] medical malpractice plaintiff should be afforded every reasonable opportunity to establish [her] case ***.” (Hansbrough v. Kosyak (1986), 141 Ill. App. 3d 538, 549, 490 N.E.2d 181, 188.) It is within the trial court’s discretion to permit amendments to the pleadings to add the documents required by section 2—622 (McCastle v. Sheinkop (1987), 121 Ill. 2d 188, 520 N.E.2d 293), and such amendments “are to be liberally allowed to enable medical malpractice actions to be decided on their merits rather than on procedural technicalities” (Moss v. Gibbons (1989), 180 Ill. App. 3d 632, 638, 536 N.E.2d 125, 129). Moreover, the technical requirements of section 2—622 should not interfere with its spirit or purpose. (Requena v. Franciscan Sisters Health Care Corp. (1991), 212 Ill. App. 3d 328, 570 N.E.2d 1214.) The purpose of section 2—622 is not to burden the plaintiff with insurmountable hurdles, but to reduce the number of frivolous malpractice suits. Requena, 212 Ill. App. 3d 328, 570 N.E.2d 1214.

Defendants do not contend that plaintiff’s suit is frivolous. They maintain, however, that the trial court did not abuse its discretion in dismissing plaintiff’s complaint because plaintiff failed to show good cause for neglecting to file the required documents in a timely manner. Plaintiff asserts that her failure to file the documents were due to her reliance on DeLuna v. St. Elizabeth’s Hospital (1989), 184 Ill. App. 3d 802, 540 N.E.2d 847, appeal allowed (1989), 127 Ill. 2d 614, 545 N.E.2d 107, in which the first district held that the requirements of section 2—622 are unconstitutional. Defendants argue that plaintiff’s reliance on DeLuna does not constitute good cause because this court, prior to DeLuna, upheld the constitutionality of section 2—622 in Sakovich v. Dodt (1988), 174 Ill. App. 3d 649, 529 N.E.2d 258.

In Cato v. Attar (1991), 210 Ill. App. 3d 996, 569 N.E.2d 1111, a second district case, the plaintiff similarly contended that her noncompliance with section 2 — 622 was based upon her reliance on DeLuna. The defendants argued that plaintiff’s reliance on an appellate court opinion from another district that was contrary to a prior opinion rendered by the second district did not establish good cause for the late filing of the affidavit and medical report. The appellate court noted that while it did not condone incomplete research by an attorney, the plaintiff had presented current Illinois case law supporting her lack of compliance. The court stated:

“There is no indication of bad faith or an intent to frustrate justice by plaintiff. We can discern no prejudice that would have inured to defendant if the court would have either allowed amendment or dismissed the complaint without prejudice. As previously noted, medical malpractice cases should be determined on the merits when at all possible.” Cato, 210 Ill. App. 3d at 1000, 569 N.E.2d at 1114.

Similarly in this case, while plaintiff’s attorney may have been imprudent in relying on DeLuna, we discern no indication of bad faith. We find that plaintiff made a sufficient showing of good cause for her failure to file the section 2—622 documents in a timely manner.

Defendants also contend that dismissal of plaintiff’s complaint was proper because the physician’s report submitted by plaintiff was inadequate. Defendants point to the report’s failure to specifically name the defendants and explain how each breached the applicable standard of care. Defendants also note that plaintiff failed to file separate reports as to each defendant as required by section 2—622(b). The physician’s report filed by plaintiff stated:

“I am a board certified orthopedic surgeon licensed to practice orthopedics in the State of Illinois. Per your request, I have reviewed the relevant records and x-rays of Eunice Ebbing. Based upon my review of these records, it is my opinion that the doctors who performed the hip replacement upon Ms. Ebbing breached the applicable standard of care.
I have concluded that the standard of care was breached for the following reasons. First, Ms. Ebbing suffered from severe osteoporosis which predisposed her to fractures. Given this fact, the surgeons performing the hip replacement needed to take special precautions to avoid a fracture. These precautions included the presence of adequate trained assistants and avoidanee of excessive force upon Ms. Ebbing’s femur during the surgical procedure, especially when her leg was dislocated and reduced. The failure to take such precautions resulted in a supra condylar femoral fracture far removed anatomically from the surgical site.
Furthermore, the standard of care was breached when the doctors corrected this fracture since medial displacement of the fracture was accepted resulting in altered weight bearing of the knee.”

Defendants contend that the report was simply a generalized conclusion of medical malpractice which could not support a determination that plaintiff had a meritorious claim against either defendant. We disagree.

While it is true that defendants are not named in the physician’s report, under the circumstances we view this as a minor deficiency. A review of all the pleadings clearly demonstrates that the report refers to defendants. Defendants are the only physicians named in the complaint and the allegations of negligence against each defendant are identical. The report states that the surgeons and doctors who treated plaintiff breached the standard of care by committing certain acts or omissions. These acts and omissions parallel the allegations contained in the complaint. We believe that the report was sufficiently clear and detailed to meet the requirements of section 2—622, absent a showing by defendants that they were prejudiced by any deficiencies. In addition, we find that the plaintiff’s failure to file separate reports as to each defendant was merely a technical deficiency which “should not be utilized to deprive the plaintiff of [her] substantive rights” (Requena, 212 Ill. App. 3d at 333, 570 N.E.2d at 1217). In summary, as we stated in a previous case:

“[W]e find that the medical report and affidavit of merit filed in this case were minimally sufficient to statisfy section 2—622 and the trial court’s dismissal of the case with prejudice was erroneous. The healing art malpractice act was enacted to deter nonmeritorious litigation. It should not be so strictly construed that exquisite and fine technicalities can be used as a means of stripping plaintiffs of their substantive rights and their day in court. This interpretation of the statute furthers the Act’s broad purpose while at the same time complying with the legislative mandate that the Code of Civil Procedure be liberally construed so as to protect the substantive rights of the parties.” Hagood v. O’Conner (1988), 165 Ill. App. 3d 367, 374, 519 N.E.2d 66, 70.

In view of our decision, we need not address plaintiff’s additional arguments that section 2— 622 is unconstitutional and that the court erred in refusing to certify a bystander’s report of proceedings.

For the reasons stated above, the judgment of the circuit court is reversed and the cause is remanded for further proceedings.

Reversed and remanded.

HAASE and McCUSKEY, JJ., concur.


author: JUSTICE GORMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ELLIS D. WATTS, Defendant-Appellant.
    Third District
    No. 3 — 91—0064
    Opinion filed February 21, 1992.
    Verlin R. Meinz, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Kevin W. Lyons, State’s Attorney, of Peoria (Robert M. Hansen and John X. Breslin, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GORMAN

delivered the opinion of the court:

The defendant, Ellis D. Watts, appeals his conviction for aggravated criminal sexual assault (Ill. Rev. Stat. 1989, ch. 38, par. 12—14). We affirm.

According to the record, Sonja Brown testified that on January 4, 1990, around 3 a.m., she was walking near downtown Peoria when a car pulled up next to her. Overton Pace was driving, and the defendant sat in the front passenger seat. Brown accepted Pace’s offer of a ride and got in between the two men. Brown told Pace she wanted to go to the Warner Homes. Pace, however, drove past there and repeatedly insisted that Brown would fellate him.

After Pace stopped at an isolated spot near the river, he got out to urinate. Brown tried to leave through the passenger door, but the defendant held it shut. She then got out through the driver’s door, but Pace kicked her, struck her in the eye, and forced her back into the car. Pace subsequently forced Brown to fellate him. At the same time, the defendant pulled down Brown’s pants and forced her to have intercourse. After both men ejaculated, Pace pulled Brown out of the car. At Pace’s request, the defendant helped him throw Brown down an embankment toward the river. The two then drove away. Brown waited a minute before leaving the embankment. She then went to her mother’s house and called the police.

After speaking to the police, Brown was taken to the hospital. Her attending physician testified that she was fearful and upset, and that she had swelling around her left eye and abrasions on her back. During the examination, he collected “rape kit” materials from her.

The next day, the police went to the defendant’s house. After receiving permission from a family member to enter, they found him hiding in a refrigerator in the basement. The officers then placed him in custody.

Various items of evidence were collected from Pace, Brown, the defendant, and Brown’s boyfriend. Dana Sligar, a forensic scientist and serologist, testified that seminal material on Brown’s vaginal and rectal swabs showed A, B, and H blood activity. She concluded that any of the four could have contributed to the material. The oral swab showed B and H blood activity; either Pace or Brown could have contributed to it. Seminal material in the crotch of Brown’s jeans showed a PGM type of 1 + , 1-. The defendant was the only one of the four who could have contributed such material. Regarding all of the items, Sligar concluded that none of the males could be eliminated as a contributor of the semen if one assumed more than one donor to each item.

For his part, the defendant denied committing the offense. He stated that in the early morning hours of January 4, Brown approached the car and asked if they had any money. When Pace said he did, she entered the car and began negotiating with him about performing an act of fellatio for money. Pace then drove to a deserted area. After the defendant left the car, Pace had Brown fellate him. The two then quarreled about the money he owed her. When Brown threatened to report a rape, Pace struck her. After he made her perform another act of oral sex, he dragged her out of the car and threw her down an embankment. The defendant and Pace then drove off. He admitted that following his arrest, he told the investigating officer that he was home at the time of the incident and knew nothing about it.

The State responded with stipulated rebuttal evidence that the defendant, in speaking to an officer following the arrest, had admitted that he had rubbed Brown’s leg and touched her buttocks; that he had touched her pubic hair; and that he had pretended to take his penis from his pants.

During closing arguments, the prosecutor made the following remarks:

“The defendant, what is his interest, bias, or prejudice? Well, he’s the one on trial here. You recall his testimony. He’s a 17 year old male attending Manual High School, getting ready to enter into adulthood. Do you think he’d want to go through the rest of his life with a conviction for Aggravated Criminal Sexual Assault? When you consider his testimony, you can consider his interest, bias, or prejudice in avoiding a conviction. It’s his desire to get off this charge, and his desire, the evidence would show, has led Ellis Watts to commit perjury and to lie.”

Following the close of arguments, the trial judge instructed the jury that the charging instrument was not evidence against the defendant and did not create an inference of guilt. (Illinois Pattern Jury Instructions, Criminal, No. 2.02 (2d ed. 1981) (hereinafter IPI Criminal 2d).) He also told the jury that the defendant was presumed to be innocent and that the presumption of innocence continued with him throughout trial. IPI Criminal 2d No. 2.03.

Following six hours of deliberations, the jury found the defendant guilty of aggravated criminal sexual assault.

On appeal, the defendant argues that the prosecutor committed reversible error in arguing that the defendant had a motive to lie because he faced a conviction for aggravated criminal sexual assault. The defendant contends that the prosecutor improperly implied that a defendant is presumed to lie merely because of his status as a defendant, and that the prosecutor also diminished the defendant’s presumption of innocence.

The defendant did not object to these comments at trial. Consequently, we can only reverse if the comments constituted plain error. (People v. Morgan (1991), 142 Ill. 2d 410, 568 N.E.2d 755.) Plain error is defined as error of such magnitude that it denied the defendant a fair trial, or error in a trial where the evidence is closely balanced. People v. Whitehead (1987), 116 Ill. 2d 425, 508 N.E.2d 687.

The prosecutor’s comments were improper because they implied that the defendant lied simply because of his status as a defendant. We find, however, that they did not constitute plain error. The evidence in this case was not closely balanced, given the inconsistency between the defendant’s testimony and the story he told the police, as well as the matching of the seminal material on Brown’s jeans with the defendant.

The comments also did not deprive the defendant of a fair trial. The prosecutor is given broad leeway in closing arguments. (People v. Franklin (1990), 135 Ill. 2d 78, 552 N.E.2d 743.) The remarks were an isolated instance of alleged error, and they were not dwelt on at length. Moreover, the comments must be considered within the context of the entire trial. In this regard, the Illinois Supreme Court has noted that arguments carry less weight with the jury than the instructions, because the former are billed in advance as argument, not evidence, and the latter are seen as definitive and binding statements of the law. (People v. Lawler (1991), 142 Ill. 2d 548, 568 N.E.2d 895.) The trial court’s instructions on the burden of proof and the charging instrument therefore lessened the prejudicial effect of the comments. (See Lawler, 142 Ill. 2d at 564-65, 568 N.E.2d at 902.) Accordingly, we affirm the conviction. We emphasize, however, that we do not condone this tactic, and under different circumstances it could lead to reversible error.

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

Affirmed.

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


author: JUSTICE GORMAN PRESIDING JUSTICE BARRY,

text:
    CHERYL BENJAMIN, Indiv. and as Adm’r of the Estate of Russell Benjamin, Deceased, Plaintiff-Appellant, v. ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, et al., Defendants-Appellees.
    Third District
    No. 3 — 91—0226
    Opinion filed February 18, 1992.
    BARRY, P.J., dissenting.

      David V. Dorris, of Jerome Mirza & Associates, Ltd., of Bloomington (Thomas M. Harris, of counsel), for appellant.
    Stephen J. Heine and Robert V. Dewey, Jr., both of Heyl, Royster, Voelker & Allen, of Peoria (Karen L. Kendall, of counsel), for appellee Atchison, Topeka and Santa Fe Railway Company.
    Robert C. Stoerzbach, of Barash, Stoerzbach & Henson, of Galesburg (John W. Robertson, of counsel), for appellee Kenneth Perkins.
   JUSTICE GORMAN

delivered the opinion of the court:

This is a wrongful death case arising from a collision between a van and a stationary train. The van was subsequently struck by another train, which was on an adjacent track. The defendants were granted summary judgment. We affirm.

On December 14, 1985, Russell Benjamin was killed when his van collided with a train in Galesburg. He was driving in a northerly direction on his way home from a tavern at about 2 a.m. Intersecting the road was the railroad crossing of defendant Atchison, Topeka, & Santa Fe Railway Co. (Santa Fe). The crossing consisted of five sets of tracks, including two mainlines running east-west. The crossing was marked with a sign, red flashing lights, warning bells and a gate or arm which lowered automatically when a train approached.

On December 13, between 6:30 and 7 p.m., defendant Kenneth F. Perkins, Sr., was driving his tractor-trailer truck through the crossing. As he was doing so, an approaching train activated the signals, causing the gate to lower. The south gate caught on Perkins’ trailer and broke off of its mountings. Perkins made no report of the severed crossing arm.

The following morning, Santa Fe stopped a westbound freight train on the north mainline of the crossing. With the position that the train was stopped, an empty flat car blocked the intersection. Approaching from the west was another Santa Fe train, traveling east on the south mainline. Although the south crossing gate was not working, the flashing red signals, warning bells and north gate were in operation. The night was clear and the road was dry.

At that point, Russell Benjamin attempted to cross the tracks, near or across the center line of the road. He struck the stationary train with enough force so as to wedge his van under the flat car. The engineer of the eastbound train saw the van stopped on the tracks and applied his emergency brake, but was unable to stop before striking the van. There is no evidence indicating which collision killed Mr. Benjamin.

Cheryl Benjamin, as administrator of the estate, filed a wrongful death action against the two defendants. She charged Santa Fe with negligence in the operation of its trains, failing to maintain the crossing, and failing to warn and protect motorists. She charged Perkins with negligence in the operation of his truck, failing to notify the railroad or any other agency of the broken crossing gate, and failing to warn motorists of the dangerous condition.

After extensive discovery, both defendants moved for summary judgment, arguing that a train stopped at a crossing is adequate notice of its presence and that there is no duty to provide additional warnings.

The trial court, relying on Dunn v. Baltimore & Ohio R.R. Co. (1989), 127 Ill. 2d 350, 537 N.E.2d 738, granted Santa Fe’s motion. The court further found that Perkins owed no duty to plaintiff’s decedent and granted Perkins’ motion. Plaintiff now appeals.

Plaintiff first argues that Dunn does not apply because there is another line of cases more on point.

In Dunn, the supreme court reaffirmed the so-called “standing-car” rule. This rule first appeared in Gage v. Boston & Maine R.R. Co. (1913), 77 N.H. 289, 90 A. 855, was first applied in Illinois in Coleman v. Chicago, Burlington & Quincy R.R. Co. (1936), 287 Ill. App. 483, 5 N.E.2d 103, and is still the law in most States. Trevino v. Union Pacific R.R. Co. (7th Cir. 1990), 916 F.2d 1230.

This doctrine provides that a train stopped at a crossing is held to be adequate notice and warning of its presence to any traveler who is in the exercise of ordinary care for his own safety, and the railroad is under no duty to provide additional signs, signals or warnings. Dunn, 127 Ill. 2d at 357, 537 N.E.2d at 741.

While acknowledging that rule, plaintiff contends that it applies only to situations where there was an absence of any warning device. She argues that there is another line of cases which deals with non-functioning signals, i.e., where the railroad has already undertaken a duty to warn but negligently performed that duty. Plaintiff’s argument is that the decedent, who was familiar with the crossing, relied on the absence of the gate as an affirmative indication that it was safe to proceed.

The two cases upon which plaintiff relies heavily are Humbert v. Lowden (1944), 385 Ill. 437, 53 N.E.2d 418, and Langston v. Chicago & Northwestern Ry. Co. (1947), 398 Ill. 248, 75 N.E.2d 263.

In Humbert, a car was struck by a moving train. The crossing was protected by a bell and gates, both of which were manually operated by a flagman. At the time of the accident, the gates had not been lowered. The only question before the supreme court was whether, as a matter of law, decedent was contributorily negligent. The court held that, under the facts, that was a question for the jury, which had decided in favor of plaintiff. The opinion states that when a railroad undertakes the duty of warning, a traveler has a right to presume that the gates will be operated properly.

In Langston, the tracks crossed Belvidere Road and ran parallel to Skokie Highway. The tracks crossed Belvidere about 75 feet from the intersection of Belvidere and Skokie. The lights controlling the intersection were synchronized with the crossing lights so that when a train was approaching, traffic on Belvidere had a red light at the intersection in addition to the flashing red signal at the crossing. On the night of the accident, the decedent’s car was faced with a green light at the intersection and no flashing lights at the track. Due to a heavy fog, he could not yet see the train. Based on these indications, decedent crossed the tracks and was struck by a train. The issue before the court was whether the failure of the railroad crossing signals to indicate danger, while the device to the west of the crossing indicated safety, constituted negligence. The court held that the existence of the green light constituted an affirmative invitation to cross the tracks. Since the railroad had undertaken a duty to warn, it was negligent for not properly maintaining the signal.

These cases cannot properly be categorized as distinct from Dunn. Humbert and Langston are more accurately classified as falling into the special circumstances exception to the standing-train rule. Indeed, the Dunn court cited Langston as an example of special circumstances. Dunn, 127 Ill. 2d at 357, 537 N.E.2d at 741.

In both Humbert and Langston, the railroad had chosen a method of warning which then failed to operate. Here, Santa Fe chose several methods of warning, only one of which didn’t work. At the time of the accident, the flashing lights and bells were in full operation. Viewing that fact in conjunction with the presence of the stopped train, it cannot be said that decedent was falsely induced into thinking it was safe to cross the tracks. “[I]t is erroneous to conclude *** that because additional warnings could have prevented the collision, the railroad had a duty to provide additional warnings.” Dunn, 127 Ill. 2d at 365, 537 N.E.2d at 744.

Plaintiff argues that even if the standing-car rule applies, special circumstances existed. She cites the following facts as evidence of special circumstances: (1) it was dark and the crossing was unlit; (2) the flat car was nonreflective and had a low profile so as to not constitute much of a visual impediment; (3) the decedent would have been able to see the lights from businesses across the track; (4) decedent would have been able to see the flashing signals on both sides of the track; (5) the gate was nonfunctional; and (6) another train was approaching which could have accounted for the activated flashing lights.

There is no fixed rule as to what constitutes special circumstances. (Dunn, 127 Ill. 2d at 357, 537 N.E.2d at 741.) Poor visibility and darkness alone do not constitute special circumstances. Bachman v. Illinois Central R.R. Co. (1971), 132 Ill. App. 2d 277, 268 N.E.2d 42.

In Dunn, plaintiff also argued that special circumstances existed, including darkness, the absence of lighting at the crossing, and unnecessary distractions in the vicinity of the crossing. (Dunn, 127 Ill. 2d at 359, 537 N.E.2d at 742.) Plaintiff there, as here, argued that perceptibility plays an important role, relying on Petricek v. Elgin, Joliet & Eastern Ry. Co. (1959), 21 Ill. App. 2d 60, 157 N.E.2d 421. However, as the Dunn court noted, Petricek specifically held that “ ‘one cannot recover for driving his automobile into a train standing across a crossing, except under extraordinary or unusual circumstances.’ ” Dunn, 127 Ill. 2d at 358, 537 N.E.2d at 741, quoting Petrick, 21 Ill. App. 2d at 66.

Two recent Federal appellate cases have also examined Illinois’ standing-car rule in the wake of Dunn. Pearman v. Norfolk & Western Ry. Co. (7th Cir. 1991), 939 F.2d 521; Trevino v. Union Pacific R.R. Co. (7th Cir. 1990), 916 F.2d 1230.

First, in Trevino, the Seventh Circuit addressed the issue in a case in which an automobile struck a standing flat-car at an abandoned crossing. The track at that point had not been used for over a decade and was overgrown with weeds. To one side of the crossing, a fence had been built across the track. On the night of the accident, the railroad cars, which were normally stored on the track, had somehow crashed through the fence, coming to rest on the crossing. The crossing was not marked by a signal of any kind, not even a cross-arms sign. The plaintiff claimed that this constituted special circumstances so as to avoid the traditional standing-car rule.

The trial court disagreed and granted defendant’s motion to dismiss. After an extensive discussion of the standing-car rule, the court of appeals reversed. It noted that there had not yet been any pretrial discovery and decided that, under the Federal scheme of pleading, the plaintiff had provided the defendant with adequate notice of the alleged special circumstances. The court determined that deciding the issue of special circumstances required going beyond the pleadings. Thus, the court of appeals reversed the dismissal so that discovery could proceed and the plaintiff could attempt to prove special circumstances.

A similar result was reached in Pearman. There, the plaintiff’s decedent struck a black tanker car parked on a crossing. The trial court granted the railroad’s motion to dismiss. In Pearman, as in Trevino, the court of appeals reversed and allowed discovery to proceed, so that the plaintiff would have the opportunity to demonstrate the existence of special circumstances.

Both of these cases are distinguishable from the instant case. Pearman and Trevino were decided on motions to dismiss where the trial judge was limited to looking at the facts alleged in the pleadings. Accordingly, the Seventh Circuit felt that the dismissals were premature and remanded to allow further discovery.

Here, both sides have engaged in extensive discovery. Expert witnesses have been retained and deposed. The conditions alleged by Benjamin do not rise to the level of special circumstances. The railroad was allowed to assume that drivers would exercise ordinary, reasonable care when approaching a crossing at which the flashing signals and bells were activated and at which a train was parked. Frankenthal v. Grand Trunk Western R.R. Co. (1983), 120 Ill. App. 3d 409, 458 N.E.2d 530 (defendant railroad’s engineer “had the right to assume that motorists approaching the tracks would exercise due care for their own safety”).

This does not mean that the decedent is barred recovery on the basis of the defunct doctrine of contributory negligence. The standing-car rule is not a rule of contributory negligence. There is no duty to warn of a standing car, and unless a duty is owed, there is no negligence. Hence, the plaintiff’s negligence, slight or great, is irrelevant, as the issue is never reached. (Dunn, 127 Ill. 2d at 365, 537 N.E.2d at 744.) The trial court properly applied the standing-car rule in granting summary judgment for Santa Fe.

Plaintiff’s next contention is that Perkins’ motion should not have been granted because Dunn applies only to the railroad’s duty. The trial court, although not specifically relying on Dunn, found that any duty Perkins had was to the railroad, not the decedent.

Perkins claims that the reasoning behind Dunn is equally applicable to him, namely “that the imposition of a general duty to anticipate and guard against the negligence of others would place an intolerable burden on society.” (Dunn, 127 Ill. 2d at 366, 537 N.E.2d at 745.) Thus, under his argument, no one — neither the railroad nor Perkins-had a duty to warn decedent about a stopped train.

The standing-car rule is analogous to the rule that excuses a potential injurer from having to warn of an obvious danger, both rules being instances of the larger principle that a person is entitled to assume that the people with whom he deals exercise reasonable care. (See, e.g., Ward v. K mart Corp. (1990), 136 Ill. 2d 132, 554 N.E.2d 223.) That principle has been understood to imply that if the accident is of the sort that reasonable care by potential victims would always avoid, the potential injurer has no duty of care. Trevino, 916 E2d at 1236.

We need not address the issue of whether the rule in Dunn applies only to a railroad’s duty to warn of a stopped train. Instead, we need only decide whether, under these facts, Perkins owed a duty to decedent.

In order to determine the existence of a duty, several considerations must be weighed. These include the reasonable foreseeability of injury, the likelihood of injury, the magnitude of the burden of guarding against it and the consequences of placing that burden upon the defendant. Kirk v. Michael Reese Hospital & Medical Center (1987), 117 Ill. 2d 507, 513 N.E.2d 387.

Having already decided that the railroad had no duty to warn decedent about a stopped train, we cannot now place a greater duty on Perkins. In balancing the factors listed above, we feel that the trial court was correct in finding the absence of a duty on the part of Perkins.

The plaintiff’s final contention is that the trial court erred in granting summary judgment on counts involving the moving train. Plaintiff alleged in her complaint that Santa Fe was negligent in failing to warn of the approaching train and in the operation of that train.

In the first part of her brief, plaintiff wants the court to infer that the decedent saw the signal lights, assumed they were for the approaching train and raced to beat that train, thus striking the parked train. Now plaintiff alleges that there was inadequate warning of the approaching train despite her claim that it was approximately 3,000 feet away when the engineer first saw the van on the tracks. The trial court was correct in finding that there was no genuine issue of material fact so as to preclude summary judgment on those counts.

For the foregoing reasons, the order of the Knox County circuit court granting summary judgment for both defendants is hereby affirmed.

Affirmed.

HAASE, J., concurs.

PRESIDING JUSTICE BARRY,

dissenting:

In my opinion my colleagues embrace the standing-train rule as a rather inflexible doctrine and have lost sight of basic tort principles, as expressed by our supreme court in Ward v. K mart Corp. (1990), 136 Ill. 2d 132, 151, 554 N.E.2d 223, 231-32, that must be applied to determine the existence of a duty even in instances where the defendant’s property seems to present an “open and obvious” risk. Ward makes it clear that the standing-train rule, like the “open and obvious” rule, is in essence a commonsense application of the tort principle that a defendant owes no duty to protect a plaintiff from “reasonable” risks. The danger posed by a train’s boxcar, tanker or caboose standing on a railroad crossing may be a “reasonable” risk because no reasonable person under ordinary conditions would collide with it. Ergo, the railroad is said to owe no duty to protect a motorist claiming injury from such a collision. (Dunn v. Baltimore & Ohio R.R. Co. (1989), 127 Ill. 2d 350, 537 N.E.2d 738.) Nevertheless, a duty may arise when conditions are altered, making the risk of collision “unreasonable.” Quoting comment ƒ to section 343A of the Restatement (Second) of Torts (1965), the Ward court stated:

“[r]eason to expect harm to visitors from known or obvious dangers may arise ‘where the possessor has reason to expect that the invitee’s attention may be distracted, so that he will not discover what is obvious, or will forget what he has discovered, or fail to protect himself against it. *** In such cases the fact that the danger is known, or is obvious, is important in determining whether the invitee is to be charged with contributory negligence, or assumption of risk. It is not, however, conclusive in determining the duty of the possessor, or whether he has acted reasonably under the circumstances.’ ” Ward, 136 Ill. 2d at 149-50, quoting Restatement (Second) of Torts §343A, Comment ƒ, at 220 (1965).

In Ward, plaintiff sued for injuries which he alleged were caused by K mart’s failure to warn of the existence of a five-foot-tall concrete post located some 19 inches from the outside wall of the department store near its entrance. Plaintiff was carrying a large mirror when he left the store, walked into the post and sustained head injuries. A jury found for the plaintiff and awarded him $85,000 in dam-. ages, reduced to $65,000 for his own negligence. The trial court subsequently granted defendant’s motion for judgment n.o.v., and the appellate court affirmed, finding no duty on the part of the store owner.

In reversing the lower courts’ decisions, the supreme court emphasized that “since the existence of a duty turns in large part on public policy considerations, the magnitude of the burden of guarding against the injury, and the consequences of placing that burden upon the defendant, as well as the likelihood of injury and the possible serious nature of such an injury must also be taken into account.” Ward, 136 Ill. 2d at 151, 554 N.E.2d at 232.

The Ward court acknowledged its earlier opinion in Dunn and cited it for the point that in determining whether a defendant’s premises present an unreasonable danger to invitees defendant need not anticipate the negligence of others. Contrary to the impression created by the majority here, the Dunn court did not hold that a railroad is automatically absolved of its general duty to exercise reasonable care for the protection of a motorist merely by parking its train on the tracks. Rather, the Dunn court recognized that even a standing train, under “special circumstances,” could present an unreasonable risk to motorists. The “special circumstances” alleged in Dunn consisted of: (1) darkness; (2) presence of vehicular traffic at the crossing; and (3) various violations of Illinois Commerce Commission rules for railroad crossings. The Dunn court provided its analysis of plaintiff’s allegations before concluding as a matter of law that such allegations, individually or combined, did not constitute “special circumstances.” I do not believe that my colleagues have done so.

Obviously there is no magic list of “special circumstances,” nor is there a magic number of them that must be established to survive a defendant’s motion for summary judgment. In this case, in addition to those six facts recited by the majority, the special circumstances that have been developed thus far in the proceedings include: (7) the distance across the tracks was such as to accommodate five sets of tracks from the southernmost edge where the cross arm was missing to the signals at the northernmost edge; (8) the empty flatcar was located on the north mainline and plaintiff’s decedent entered the crossing from the south; (9) plaintiff’s decedent was driving a van which would place his straight line of vision above that of most car drivers; and (10) it can be assumed that the flashing lights and bells were in continuous operation (at least on the north side) for at least 15 minutes immediately before the moving train entered the crossing.

According to the pleadings, affidavits and depositions of record, Kenneth Perkins, Sr., had entered the Linwood Road crossing from the north just as the warning signals were activated for an approaching train around 6:30 to 7 p.m. on December 13. He was operating a tractor-trailer rig with a 40-foot flatbed loaded with steel. Perkins was attempting to negotiate a left turn into a service road immediately south of the crossing when the southside cross arm began its descent. Perkins observed the arm strike the side of his trailer and break off. He did not report the incident.

Later, between 1:15 and 1:20 a.m., Russell Benjamin drove his van out of the tavern parking lot. The railroad crossing was only about one-half to three-quarters of a mile away. At 1:50 a.m. a train pulled to a stop on the north mainline. Sometime thereafter Russell drove his van into the side of a flatcar spanning the crossing. There were no witnesses to the collision between decedent’s van and that train. At 2:05 a.m., the engineer of a train travelling from the west at 70 miles per hour on the south mainline saw decedent’s van from a distance of about one-quarter of a mile. He could not brake in time to avoid hitting the van. The engineer of the stopped train observed that all warning signals on the north side were in place and operating when he crossed Linwood Road. The engineer of the moving train noted that all warning lights were operating on his approach.

Considering that decedent was familiar with the Linwood Road crossing, he knew that it was guarded by cross arms which descend gradually after the visual/audio signals are activated to warn of an approaching train. Yet, as decedent approached the crossing between 1:50 and 2:05 a.m. (the majority’s assertion that Russell was driving home from the tavern about 2 a.m. is an imprecise assumption by my view of the record), the physical barrier was not in place and the train on the south mainline would have been somewhere between 17 miles and one-quarter of a mile away.

It bears repeating that, in ruling on a motion for summary judgment, the court must construe the pleadings, depositions and affidavits most strictly against the movant and most liberally in favor of the opponent and that the right to summary judgment must be clear beyond question. (Perlman v. Time, Inc. (1978), 64 Ill. App. 3d 190, 194, 380 N.E.2d 1040, 1044.) Given the proper standard and the facts as they appear of record, the following inferences support plaintiff’s case: (1) the night was dark; (2) the empty flatcar presented a low and unlighted profile (particularly given the heightened line of vision of a driver of a van); and (3) the unobstructed view of neon signs at the car dealership on the north side of the tracks could have given the impression that all of the tracks were still clear. With the scene thus set, the issue before this court is: Was the risk posed by the standing train so “reasonable” and the likelihood that a reasonable person exercising ordinary care would suffer an injury from a collision such as decedent’s so unforeseeable as to bar recovery as a matter of law? I think not. In hindsight it seems clear that if the railroad had placed reflective devices or stripes on its flatcar, this death may have been prevented.

On the other hand, it seems equally obvious that plaintiff’s decedent was not free from negligence. As the court in Ward so aptly put it, the duty plaintiff alleges

“does not impose on defendant the impossible burden of rendering its premises injury-proof. *** We merely recognize that there may be certain conditions which, although they may be loosely characterized as ‘known’ or ‘obvious’ ***, may not in themselves satisfy defendant’s duty of reasonable care. If the defendant may reasonably be expected to anticipate that even those *** in the general exercise of ordinary care will fail to avoid the risk because they are distracted or momentarily forgetful, then his duty may extend to the risk posed by the condition. Whether in fact the condition itself served as adequate notice of its presence or whether additional precautions were required to satisfy the defendant’s duty are questions properly left to the trier of fact. The trier of fact may also consider whether the plaintiff[’s decedent] was in fact guilty of negligence contributing in whole or in part to his injury, and adjust the verdict accordingly.” Ward, 136 Ill. 2d at 156-57, 554 N.E.2d at 234.

Applying the public policy factor to the conditions here, it is debatable, in my opinion, whether a reasonable person would understand from the absence of the cross arm that he still had ample time to make the crossing before a train (that may not have been in sight) would reach it, despite the flashing lights and clanging bells on one or both sides of the crossing. According to decedent’s friend who accompanied Russell to the tavern parking lot, Russell drove off between 1:15 and 1:20 that morning. The friend said he arrived home around 1:30 a.m. Decedent’s whereabouts between 1:20 and 1:50 a.m. are not explained in the record. Also unexplained is decedent’s conduct between 1:50 a.m., when the westbound train pulled to a stop, and 2:05 a.m., when decedent’s van was first observed by the engineer of the eastbound train. From the manner in which decedent’s van was wedged under the flatcar, it can be assumed that decedent was traveling at some speed as he attempted to traverse the crossing approximately V2 hour after his friend got home. The evidence of some unspecified speed alone, however, does not justify an assumption that Russell did not in fact stop for several minutes in response to the warning signals before deciding to proceed across the tracks. Given the span of the five-track crossing, the reason Russell was driving at whatever speed he was just prior to impact is only subject to speculation. Nonetheless, the lack of any skid marks on the road supports plaintiff’s theory that Russell did not in fact see any obstruction on the crossing before proceeding into it.

Suffice it to say, in my opinion, sufficient facts have been set forth so as to present a genuine issue of material fact as to whether the railroad owed a duty for the protection of plaintiff’s deceased.

Further, I do not believe that the possibility of an injury was so unforeseeable as to relieve the truck driver defendant, Perkins, as a matter of law from owing a duty of reasonable care for the benefit of other motorists, including plaintiff’s decedent. The statute requiring motorists to promptly report property damage they have caused (Ill. Rev. Stat. 1989, ch. 95½, par. 11— 404) was enacted in part to protect subsequent motorists from the risk of collisions with obstructions lying on the road from the earlier accident. (See McCormick v. Kruk (1991), 220 Ill. App. 3d 449, 581 N.E.2d 73.) Again, in hindsight, it seems that if Perkins had reported the broken cross arm as required by law so that it could have been replaced promptly, a person familiar with the crossing traveling the road in the dead of night might not have been confused by its absence while an empty flatcar stood at the opposite side of the five-track crossing at a time when no eastbound train was in sight. As with the defendant railroad, I believe the question of whether Perkins owed a duty for the benefit of plaintiff’s decedent under these circumstances should be addressed to the trier of fact and not decided as a matter of law.

I would reverse the trial court’s judgment and remand this cause for trial.


author: JUSTICE STOUDER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID E. COX, Defendant-Appellant.
    Third District
    No. 3 — 90—0861
    Opinion filed February 21, 1992.
    Joseph N. Ehmann, 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 STOUDER

delivered the opinion of the court:

Following a stipulated bench trial, the defendant, David E. Cox, was found guilty of unlawful possession of a controlled substance with the intent to deliver (Ill. Rev. Stat. 1989, ch. 56½, par. 1401(a)(2)(B)). He was subsequently sentenced to a nine-year prison term. The defendant appeals.

The record shows in relevant part that the defendant was charged with unlawful possession with the intent to deliver and armed violence. The defendant subsequently filed a motion to suppress the evidence seized during the search which led to his indictment. Following a hearing, the trial court denied the motion. The defendant then requested a stipulated bench trial.

On the date of the stipulated bench trial, defense counsel informed the trial court that a plea agreement had been reached whereby the defendant would enter an open or blind plea to the possession with the intent to deliver charge and, in return, the State would dismiss the armed violence charge. The State would also stipulate that the defendant’s suppression issue would be preserved for appeal. The court indicated that it had no problem with the proposal, but expressed concern about whether the defendant’s right to appeal the denial of his motion to suppress could be preserved in this way. The court therefore recommended that the parties proceed with the stipulated bench trial. The defendant agreed and the stipulated bench trial was held immediately thereafter.

The parties stipulated to the facts which had been presented at the suppression hearing. Additionally, they stipulated that the white powdery substance seized in the instant case contained cocaine and that the total weight of the substance was 127.4 grams. They also stipulated that police officer Henry Minton would testify as an expert that, because of the way it was packaged and its weight, the substance was packaged with the intent to deliver. Following the presentation of the evidence, the State dismissed the armed violence charge. Both parties waived arguments, and the court found the defendant guilty of possession with the intent to deliver.

The defendant initially argues that his stipulated bench trial was tantamount to a guilty plea, and therefore, the trial court was required to admonish him under Supreme Court Rule 402 (134 Ill. 2d R. 402).

In support of his position, the defendant cites People v. Horton (1991), 143 Ill. 2d 11, 570 N.E.2d 320. He correctly notes that Horton held that a stipulated bench trial is not tantamount to a guilty plea and Rule 402 admonishments are not necessary, if the defendant presented and preserved a defense. However, he goes on to note that the Horton court also reaffirmed its earlier ruling in People v. Smith (1974), 59 Ill. 2d 236, 319 N.E.2d 760, which held that where a defendant stipulates to the sufficiency of the evidence to establish guilt beyond a reasonable doubt, the so-called stipulated bench trial is the functional equivalent of a guilty plea and Rule 402 admonishments must be given. He further notes that the Horton court also reaffirmed its ruling in People v. Stepheny (1974), 56 Ill. 2d 237, 306 N.E.2d 872, which held that when the outcome has been agreed to in advance, rendering the subsequent proceeding a mere formality in which the court and the parties simply go through the motions of a trial, the so-called stipulated bench trial is tantamount to a guilty plea and Rule 402 admonishments are required.

The defendant contends that because he informed the trial judge of his proposed plea agreement with the State, an agreement as to the outcome of the proceeding had been reached in advance as in Stepheny and he had stipulated to the sufficiency of the evidence as in Smith. He therefore argues that he was entitled to Rule 402 admonitions. Since he did not receive them, he contends that his conviction must be reversed.

Initially, we note that neither the defendant nor his attorney ever stipulated to the sufficiency of the evidence to establish his guilt beyond a reasonable doubt. While the defendant’s offered plea bargain involved a guilty plea, the plea was never accepted and entered. We do not believe a guilty plea which is withdrawn before the trial can operate as a stipulation to guilt. See People v. Saunders (1985), 135 Ill. App. 3d 594, 482 N.E.2d 85 (Plea discussions that do not result in a guilty plea are inadmissible at trial).

Furthermore, we note that after the trial court determined that a stipulated bench trial should be held in order to preserve the defendant’s suppression issue, the judge stated: “[I]t’s my understanding then that what you’re proposing now is that both sides are stipulating that in the question of guilt or innocence that I may consider the evidence I heard [at the hearing on the motion to suppress evidence] in this case.” The trial judge’s remark clearly establishes that the outcome had not been determined since he was going to weigh the evidence on the question of guilt or innocence.

In sum, the record shows that the defendant presented a defense, that he properly preserved the defense through a stipulated bench trial, and that the outcome of the bench trial was not predetermined. Therefore, we hold that the stipulated bench trial was not tantamount to a guilty plea and thus the trial judge was not required to admonish the defendant pursuant to Rule 402.

The defendant next contends that the sentencing scheme in effect when he committed the crime was different from the one in effect when he was sentenced. He therefore argues that he should have been allowed to elect the sentencing scheme under which he would be sentenced.

In pertinent part, section 6 of the Statute on Statutes provides: “Two or more Acts which relate to the same subject matter and which are enacted by the same General Assembly shall be construed together in such manner as to give full effect to each Act except in case of an irreconcilable conflict. In case of an irreconcilable conflict the Act last acted upon by the General Assembly is controlling to the extent of such conflict. ***
An irreconcilable conflict between 2 or more Acts which amend the same section of an Act exists only if the amendatory Acts make inconsistent changes in the section as it theretofore existed.” Ill. Rev. Stat. 1989, ch. 1, par. 1105.

If two enactments are capable of being construed so that both may stand, a court should so construe them. People v. Ullrich (1990), 135 Ill. 2d 477, 553 N.E.2d 356.

We note that the statute in effect on August 10, 1989, when the defendant committed the crime of possession with the intent to deliver more than 100 grams of cocaine, provided for an enhanced sentencing range of 9 to 40 years. (Ill. Rev. Stat., 1988 Supp., ch. 56½, par. 1401.2.) Three public acts, all effective January 1, 1990, amended the applicable statute. The first two (Pub. Act 86—442, eff. Jan. 1, 1990, and Pub. Act 86—266, eff. Jan. 1, 1990) did not change the enhanced penalty (noted above) for the instant offense. The third public act (Pub. Act 86—604, eff. Jan. 1, 1990) provided that the penalty for possession with the intent to deliver more than 15 but less than 100 grams of cocaine was imprisonment from 6 to 30 years. It did not specifically address the penalty for possession with the intent to deliver over 100 grams.

Since the earlier enactments did specify a penalty range of 9 to 40 years’ imprisonment for possession with the intent to deliver more than 100 grams of cocaine and the latter act did not, there is no real conflict between the acts concerning the penalty range for the specific offense of which the instant defendant was convicted. We therefore find that the sentencing scheme in effect at the time the defendant committed the instant offense, and at the time he was sentenced, was the same, i.e., 9 to 40 years. Therefore, the trial judge properly sentenced the defendant within the applicable statutory range.

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

Affirmed.

McCUSKEY and GORMAN, JJ., concur.