author: JUSTICE HAASE

text:
    BIG FARMER, INC., Plaintiff-Appellant, v. AGRIDATA RESOURCES, INC., et al., Defendants-Appellees.
    Third District
    No. 3 — 91—0125
    Opinion filed October 25, 1991.
    Timothy J. Rathbun, of McKeown Law Office, of Joliet (Scott M. Belt, of counsel), for appellant.
    . Herschbach, Tracy, Johnson, Bertani & Wilson, of Joliet, (George F. Ma-honey III, of counsel), for appellee.
   JUSTICE HAASE

delivered the opinion of the court:

The plaintiff, Big Farmer, brought suit against the defendant, Agridata Resources, for breach of contract. Big Farmer is in the business of providing demographic information and mailing lists to various farming-related industries. Agridata is the publisher of a farming magazine, Farm Futures. Big Farmer provided 61,807 names and addresses to Agridata of farmers in a certain income group. Agridata used the information to solicit potential subscribers. Of the 61,807 solicitations, 7,179 persons responded. Big Farmer claims Agridata agreed to pay 50 cents for each name provided. Agridata claims it agreed to pay 50 cents for each response it received from the mailing. Agridata tendered a check to Big Farmer for $3,589.50 which Big Farmer rejected. After a bench trial, the trial court ruled that there was no meeting of the minds between the parties as to price and, therefore, no contract. The court refused to allow the plaintiff to amend its complaint to include a quantum meruit claim. The court ruled that the plaintiff had presented no evidence upon which a quantum meruit claim could be granted. The court entered judgment in favor of the defendant. The plaintiff appeals. We affirm.

Ralph Dralle, president of Big Farmer, and Richard Olmstead, the advertising director for Agridata, first met in 1983. At that time the two men discussed the possible sale of names and demographic information to Agridata. Agridata wished to increase the circulation of its farm publication and wished to target farmers with gross sales over $100,000. At this time the talks were preliminary, and the two men reached no agreement. In 1985 they met again and arranged the sale of 750 names to Agridata at $1 per name. The purpose of this sale was to test the reliability of the names provided by Big Farmer.

In April of 1986 the two men met at an advertising seminar and discussed the quality of the prior 750 names provided by Big Farmer and the possibility of future sales. Olmstead advised Dralle that Agridata wished to increase the circulation of its magazine by 20,000 names. According to Dralle, he gave Olmstead a rate card at this time. Olmstead indicated that his company might be interested in making a deal with Big Farmer and advised Dralle to contact Chris Krajcir, a circulation manager for Agridata.

Dralle then sent Krajcir a letter outlining his discussion with Olmstead. According to the letter, Dralle reflected the price would be “$.50 per name added,” and he enclosed an additional copy of the same rate card he had previously given Olmstead. The rate card reflected the price would be “$.50 per net name added.” The difference between the terms “per name added” and “per net name” is important. The parties agree, “per net name added” is a term of art which means' the total number of names provided to a publication. “Per name added” means the number of names added to the magazine’s circulation list. Krajcir testified she discussed the term “per name added” when talking with Dralle by phone in April of 1987. Dralle asserts the agreement between the parties contemplated the payment of $.50 “per net name.”

In July of 1987, Dralle forwarded 61,807 names to the attention of Krajcir at Agridata along with an invoice showing a balance due of $30,916. The invoice calculated the amount due based upon a “per net name” basis. Krajcir testified that the day after she received the invoice she called Dralle and said “Ralph, I just got an invoice for $30,000 dollars, what the heck is this for.” According to Krajcir, Dralle responded “Don’t worry, they have probably billed you for the whole amount.” Krajcir never sent Big Farmer a written protest in response to the invoice. Agridata used the 61,807 names and sent Big Farmer a check for $3,589.50. Big Farmer returned the check to Agridata.

At trial, the defendant offered the testimony of Francis King, president and owner of Market I.D., an agricultural marketing company. King testified that he is a competitor of Big Farmer and has supplied names to Agridata in the past. The main point of King’s testimony was to establish the meaning of certain terms in the mail-solicitation industry. King also testified that if he would have supplied the names to Agridata, the contract price would have been $17,320. King did not testify as to the reasonable value of the services rendered by Big Farmer to Agridata. The plaintiff offered no testimony as to the reasonable value of the services provided.

Since both parties deal in the purchase and sale of mailing lists and demographic information, both parties are merchants as that term is defined in the Uniform Commercial Code. (Ill. Rev. Stat. 1989, ch. 26, par. 2 — 104.) In addition, since the information at issue is moveable and not otherwise precluded from the purview of the Uniform Commercial Code, the information may be considered goods as defined by statute. (Ill. Rev. Stat. 1989, ch. 26, par. 2 — 105.) Having determined that the Uniform Commercial Code is applicable, the issue of the “meeting of the minds” comes into focus.

Section 2 — 207 of the Uniform Commercial Code (UCC) was designed to alleviate the “battle of the forms” situation commonly occurring in business transactions. (Tecumseh International Corp. v. City of Springfield (1979), 70 Ill. App. 3d 101, 104, 388 N.E.2d 460.) This section specifically rejects the common law mirror image rule of offer and acceptance. (See J. White & R. Summers, Uniform Commercial Code §1 — 2, at 23-24 (1972).) Under that section, if conduct of the parties recognizes the existence of contract, then a contract for sale is formed even though the writings of the parties do not establish a contract. (Album Graphics, Inc. v. Beatrice Foods Co. (1980), 87 Ill. App. 3d 338, 347.) The contract is then considered to consist of all the terms on which the writings of the parties agree. All other terms are supplied by the provisions of the UCC:

“Conduct by both parties which recognizes the existence of a contract is sufficient to establish a contract for sale although the writings of the parties do not otherwise establish a contract. In such case[s] the terms of the particular contract consist of those terms on which the writings of the parties agree, together with any supplementary terms incorporated under any other provision of this Act.” Ill. Rev. Stat. 1989, ch. 26, par. 2-207(3).

In the case at bar, the only point at issue is the manner in which amount due on the contract is to be calculated. The invoice and rate card sent by Dralle to Agridata indicate that the amount due is to be calculated on a “per net name” basis. Dralle’s letter to Krajcir in April of 1987, however, recited that a “per name” basis was applicable. Since these terms are in conflict, they “knock-out” each other and are treated as if the parties said nothing as to price. In such a case, UCC section 2 — 305 sets “a reasonable price at the time [of] delivery” as the amount to be paid. (Ill. Rev. Stat. 1989, ch. 26, par. 2— 305.) The difficulty with the case at bar is that the plaintiff offered no testimony as to the reasonable value of the services rendered.

“THE COURT: Let me ask you this question Mr. Rathbun. Assuming the Court denies the Motion to amend the pleadings to conform to the proofs, on the basis that there is no evidence in this record to establish what the fair and reasonable value of the services rendered by the Plaintiff to the Defendant in this case were, are you prepared to offer any other or additional evidence in support of your motion?
MR. RATHBUN [Plaintiff’s Attorney]: No ***.”

Plaintiff’s counsel went on to explain that he did not intend to impeach his client’s testimony by presenting evidence that the value of the services rendered was less than the requested amount. Counsel argued that the rate card Dralle gave Olmstead formed the basis of the parties’ agreement and that the plaintiff was entitled to a judgment for the full amount sought. This was obviously a strategic decision on the plaintiff’s part. Unfortunately, it left the trial court without proof of the reasonable value of the services provided.

In the alternative, the plaintiff argues that his own testimony and that of Francis King, the defendant’s expert, should form the basis of a quantum meruit claim. An examination of their testimony, however, reveals that both men testified how they normally charged customers. Neither testified as to industry-wide standards or formulated an opinion as to the reasonable value of the services Big Farmer provided Agridata.

A review of the record shows that the court afforded the plaintiff every opportunity to present evidence as to the reasonable value of the services Big Farmer provided Agridata. For strategic reasons, the plaintiff declined to present such evidence. Lacking proof upon which a quantum meruit claim could be granted, the trial court correctly refused to allow the plaintiff to amend his complaint. Nor did the court choose to speculate as to what the reasonable value of the plaintiff’s services might be. In our estimation, the trial court’s actions were entirely proper.

For the aforesaid reasons, the judgment of the Circuit Court of Will County is affirmed.

Affirmed.

GORMAN and McCUSKEY, JJ., concur.


source: Caselaw Access Project

author: JUSTICE BARRY

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TERRY WAYNE FREEMAN, Defendant-Appellant.
    Third District
    No. 3 — 90—0651
    Opinion filed September 27, 1991.

      Kim L. Kelley, of Peoria, for appellant.
    Kevin W. Lyons, State’s Attorney, of Peoria (Judith Z. Kelly, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE BARRY

delivered the opinion of the court:

Defendant was charged with misdemeanor unlawful use of weapons (Ill. Rev. Stat. 1989, ch. 38, par. 24 — 1(a)(4)). After a jury trial, he was found guilty as charged and sentenced to one year’s probation. Defendant appeals his conviction on the ground of ineffective assistance of counsel. We affirm.

At defendant’s arraignment on July 19, 1989, defendant was found to be indigent. The public defender was appointed to represent him, and a request for a jury trial was made. Between the date of his arraignment and November 8, 1989, the date set for defendant’s trial, defendant was represented at various times by three different assistant public defenders. On November 8, defendant appeared in court with his fourth assigned counsel, assistant public defender Collette Bailey. It was her first criminal jury trial. Defendant expressed his dissatisfaction with trial counsel generally and said that he needed more time to prepare his case. The court granted a continuance despite Ms. Bailey’s assertion that she was prepared to proceed with the trial.

Ultimately, the matter was brought to trial on February 14, 1990. According to the State’s witnesses, around 1 a.m. of July 19, 1989, defendant approached two parked squad cars occupied by Peoria police officers Dwight Borneman and Gene Van Antwerp. The officers were on routine patrol and had stopped to chat at a gas station near the Heart of Illinois fair, which had just closed for the evening. Defendant positioned himself between the two cars and asked for a light, but both officers said they did not smoke and could not help him. According to the officers, defendant was dressed shabbily, had his shirt tails hanging out, needed a bath and smelled of alcohol. Defendant attempted to strike up a conversation, but the officers asked him to leave. Borneman testified that defendant then walked over to the station building by the pay phone and glared back at them.

The officers decided that because of the late hour and the fact that the gas station was closed they should find out what defendant was up to. They walked over to him and asked a few questions. Defendant indicated he was going to call for a ride home. Defendant made an attempt, but apparently was unsuccessful. Van Antwerp continued the discussion, and defendant became upset and began gesturing with his arms in the air. This action brought defendant’s shirt up over his belt and exposed a mini revolver bolstered in the belt buckle. Borneman drew his weapon, announced to Van Antwerp that defendant had a gun, and then Van Antwerp handcuffed defendant while Borneman recovered the belt and gun.

Borneman further testified he had once owned just such a mini revolver and was familiar with its parts and operation. He said that he checked the gun for ammunition and found it empty. He also pulled the trigger, saw the hammer fall and determined that the gun was operational. Borneman said that the weapon is composed of three main parts and that if it is disassembled further it is extremely hard to put back together as it tends to fall apart.

Van Antwerp testified that after Borneman had taken the gun and belt from defendant, Van Antwerp conducted a test to determine if the gun was functional. He said he “dry fired” it by cocking the hammer and pulling the trigger 10 times. In Van Antwerp’s opinion, the gun functioned “easily.” Van Antwerp stated that defendant said there was supposed to be a piece missing, but that the only thing Van Antwerp could see missing was the bullet. On cross-examination, Van Antwerp stated that it was his opinion that if a piece had been missing from the gun it would not have functioned.

After the State rested, defendant took the stand in his own defense. He testified that he had dressed up in a fancy, thin, white dress shirt, dress slacks and cowboy hat to attend the Heart of Illinois Fair on the night in question. He said he had worn the belt and gun on the outside with his shirt tucked in and had received comments on it from security guards at the beer tent at the fair. It was the first time defendant had worn the gun and belt in public. Defendant further testified that he had spent two to three hours at the beer tent that night. Defendant admitted that the cylinder and pin were in the gun, but he denied that all parts of the gun were intact.

After the close of all evidence, but before closing arguments, defendant told the court out of the jury’s presence that he did not believe he was receiving adequate representation from Ms. Bailey. Defendant stated that he wanted to prove that the gun was nonfunctioning because he had removed a certain piece from it. Ms. Bailey expressed her opinion that the case law did not support the defense defendant wished to present and that her strategy was to limit the theory of defense to the effect that defendant did not knowingly conceal the weapon. The court denied defendant’s motion to discharge appointed counsel, but stated that the issue could be raised again in post-trial proceedings.

In closing argument, Ms. Bailey urged the jury to find defendant not guilty on the ground that the evidence failed to establish that defendant had concealed the weapon. The jury returned a guilty verdict.

The court appointed new counsel to represent defendant in his post-trial motion. After an extensive hearing, the motion was denied, and defendant brings this timely appeal.

Defendant initially argues that trial counsel was ineffective because she failed to present a viable defense, i.e., that defendant lacked the requisite mental state to commit the offense charged because he had been told by former assistant State’s Attorney Verne Dentino that it was not illegal to carry the mini gun in a belt buckle.

The test on review for a challenge to the competence of trial counsel is whether counsel’s representation was actual incompetence which deprived defendant of a fair trial and resulted in substantial prejudice without which the outcome of the trial would probably have been different. (People v. Albanese (1984), 104 Ill. 2d 504, 473 N.E.2d 1246.) There is a strong presumption that counsel’s conduct fell within the wide range of reasonable representation (People v. Kinzer (1991), 214 Ill. App. 3d 790, 795, citing People v. Mack (1984), 105 Ill. 2d 103, 473 N.E.2d 880), and matters of professional judgment, discretion and trial tactics which involve hindsight evaluation are not grounds for a finding of incompetency. People v. Johnson (1978), 63 Ill. App. 3d 745, 380 N.E.2d 531.

In this case, Ms. Bailey testified during post-trial proceedings that she interviewed Dentino, and that his recollection of his conversation with defendant differed materially from that reported by defendant. Rather than presenting a witness who would effectively challenge defendant’s credibility on an alternative defense, Bailey decided to stick to the theory that the gun was not concealed. Moreover, counsel’s decision not to solicit defendant’s testimony about his belief that he was not carrying the gun illegally was a matter of sound trial tactics because Dentino was as available to the State as a witness as he was to the defense. By effectively rebutting defendant’s testimony regarding this conversation, the State could have weakened defendant’s credibility even more. Based on the record before us, we cannot say that counsel’s decision to reject the potential defense demonstrated incompetency rather than reasonable trial strategy.

Next, defendant argues that trial counsel was incompetent for having failed to secure expert testimony in support of defendant’s theory that the gun was “broken down and inaccessible.” A statutory exemption for weapons “broken down in a non-functioning state or not immediately accessible” is provided in section 24 — 2(b)(4) of the Criminal Code of 1961 (Ill. Rev. Stat. 1989, ch. 38, par. 24 — 2(b)(4)). Such exemption is not an affirmative defense, but must be proved by defendant by a preponderance of the evidence. Ill. Rev. Stat. 1989, ch. 38, par. 24 — 2(h).

In People v. Delk (1981), 96 Ill. App. 3d 891, 903, 421 N.E.2d 1341, 1350, citing People v. Halley (1971), 131 Ill. App. 2d 1070, 268 N.E.2d 449, the court clarified that an offense under the deadly weapons act may be established upon a showing that the firearm possessed the outward appearance and characteristics of a gun even though it may be rusty, missing a firing pin or otherwise inoperable. It is not sufficient to show merely that the gun is inoperable — defendant must establish as well that the gun was also broken down. Testimony in Delk established that the sawed-off shotgun in that case was “rusty, unloaded and difficult to pump.” Nonetheless, the court on review ruled that the testimony did not establish that the weapon was both nonfunctioning and disassembled, or broken down.

Ms. Bailey testified during the post-trial proceedings in this case that she had researched defendant’s proposed defense in this regard. She determined, based on the status of Illinois case law, that the mere fact that defendant alleged that he had removed a small spring to render the gun incapable of shooting, as it was designed to shoot, would not be sufficient to entitle defendant to an instruction on the exemption. We note that Officer Van Antwerp testified that he had “dry-fired” defendant’s gun and that, although unloaded, it was a functioning weapon. This was corroborated by Officer Borneman. Even if defendant had rebutted the officers’ testimony with expert testimony respecting the weapon’s functioning, the evidence established that the gun was new, appeared intact and had the outward appearance of a gun. (See Delk, 96 Ill. App. 3d 891, 421 N.E.2d 1341.) Under the circumstances, we do not find that trial counsel’s decision to forego this alternative defense falls outside the purview of reasonable trial strategy.

Next, defendant contends that trial counsel was ineffective for failure to call witnesses who had seen defendant at the fair on the night in question and could corroborate that he was wearing his shirt tucked in with the gun and belt buckle exposed. We reject this argument because the record does not disclose that any such witness was identified; and even if such witnesses were available, their testimony regarding defendant’s dress at the fair would not directly rebut the State’s evidence of his disheveled appearance later that evening. Accordingly, we attribute trial counsel’s decision not to introduce such witnesses to professional judgment.

Lastly, defendant charges that the cumulative effect of trial counsel’s errors during her first criminal jury trial were such as to deprive him of effective assistance of counsel. We have carefully reviewed the record of this trial and do not agree. Suffice it to say, defense counsel proceeded with a plausible trial strategy regardless of its ultimate lack of success. Her evaluation of the relative strengths of potential theories of defense and her decision to limit the issue before the jury to that of concealment were not unreasonable. We cannot say that but for counsel’s errors the result of the trial would have been different.

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

Affirmed.

STOUDER, P.J., and HAASE, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. ISLAM PINJOLI, Defendant-Appellee.
    Third District
    Nos. 3 — 91—0012, 3 — 91—0013 cons.
    Opinion filed October 7, 1991.
    Gary L. Spencer, State’s Attorney, of Morrison (John X. Breslin and Rita Kennedy Mertel, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    George C. Howard, of George C. Howard, Ltd., of Chicago, for appellee.
   JUSTICE HAASE

delivered the opinion of the court:

The defendant, Islam Pinjoli, was charged by indictment with the offense of unlawful possession of a controlled substance with the intent to deliver (case number 90 — CF—140) and the offense of eavesdropping (case number 90 — CF—141) (Ill. Rev. Stat. 1989, ch. 561/2, par. 1401(a)(2); ch. 38, par. 14 — 2). He filed three motions to dismiss the indictments. Thereafter, the trial court granted his third motion. The State appeals, and we reverse and remand.

The record shows that the defendant filed a motion to dismiss his indictment in case number 90 — CF—140. He alleged that the indictment was improper because it grew “out of a set of facts and evidence framed and concocted by the State and its agents.” Following a hearing on this motion, the trial court denied it. A similar motion was filed in case number 90 — CF—141, wherein the defendant alleged that it was necessary for him to eavesdrop to defend himself against the State’s conspiracy. No hearing has been held on that motion. The defendant also filed a third motion incorporating both cases, alleging that his indictments should be dismissed because the State had introduced evidence at the grand jury hearing showing that he had a prior conviction for a drug offense.

Following a hearing on the third motion, the trial court dismissed both indictments against the defendant. The court found that the evidence of the prior conviction had a prejudicial effect on the defendant and, as such, the grand jury should not have heard the evidence.

The record also shows that the defendant testified before the grand jury. In addition, it shows that a hearing was not held on defendant’s motion alleging that it was necessary for him to eavesdrop to defend himself against the State’s conspiracy in case number 90 — CF—141. Finally, it shows that the defendant did not contend, nor did the trial court find, that insufficient evidence was introduced to support the indictments.

On appeal, the State argues that the trial court erred in dismissing the indictments. Specifically, it contends that evidence of the defendant’s prior conviction was properly admitted for impeachment purposes.

It is well settled that grand jury proceedings are not restrained by the technical, procedural, and evidentiary rules governing the conduct of criminal trials. (In re D.T. (1986), 141 Ill. App. 3d 1036, 490 N.E.2d 1361.) It is also well settled that even at trial a defendant’s prior conviction may be introduced for impeachment purposes if he testifies. (People v. Davis (1990), 193 Ill. App. 3d 1001, 550 N.E.2d 677.) If a defendant can be impeached when he testifies at trial, we find no basis for saying that he cannot be impeached with a prior conviction when he testifies before a grand jury.

Here, we find that the trial court erred in dismissing the indictments. The evidence showed that the defendant testified before the grand jury. As such, the State could introduce impeachment evidence, including evidence of his prior conviction. We note that the cases cited by the defendant in support of his position are all distinguishable. Therefore, we conclude that the indictments in cases numbers 90— CF — 140 and 90 — CF—141 should be reinstated.

However, regarding case number 90 — CF—141, we note that the defendant was not given a hearing on his motion to dismiss filed in that case. Due to our finding that the court erred in dismissing the indictments, we conclude that the cause must be remanded for a hearing on the defendant’s remaining motion. Accordingly, we reverse the trial court’s decision in cases numbers 90 — CF—140 and 90 — CF—141 and reinstate the defendant’s indictments. On remand, the trial court shall hold a hearing on the defendant’s motion to dismiss in case number 90 — CF—141.

The judgment of the circuit court of Whiteside County is reversed and the cause remanded for proceedings consistent with this decision.

Reversed and remanded.

GORMAN and McCUSKEY, JJ., concur.


author: JUSTICE SLATER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL TYSON, Defendant-Appellant.
    Third District
    No. 3 — 90—0815
    Opinion filed October 7, 1991.

      Stephen Omolecki, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Marshall E. Douglas, State’s Attorney, of Rock Island (Nancy Rink Carter, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE SLATER

delivered the opinion of the court:

The defendant, Michael Tyson, pled guilty to unlawful possession of more than 1 but less than 15 grams of a substance containing cocaine (Ill. Rev. Stat. 1989, ch. 561/2, par. 1402(b)). The trial court sentenced him to a 24-month term of probation, conditioned upon his serving 60 days in jail and paying a street value fine of $3,380. The defendant appeals, arguing that the street value fine must be vacated and the cause remanded for a hearing to determine the appropriate amount of the fine.

Regarding the street value of the cocaine, the record shows the following. Officer William Lambert testified that when he arrested the defendant on an outstanding warrant, he found seven packets of a white ^powdery substance on him, plus $2,189 in cash. All of the packets appeared to have the same amount of powder in them. Lambert estimated, without having actually weighed the powder, that it totalled “[sjomewhere in excess of ten to fifteen grams.” He acknowledged that only one of the packets was actually tested in a crime lab. The assistant State’s Attorney handling the case stated during arguments that he understood the packets were worth $350 each. Finally, in a complaint for forfeiture of the $2,189, the State alleged that six of the packets weighed between one-fourth and one-eighth of a gram each. No weight was given for the seventh packet.

On appeal, the defendant argues that there was insufficient evidence from which the court could determine the value of the cocaine; that the prosecutor’s statement concerning the value of the cocaine was grossly excessive; that even if it was not excessive, the fine should only be $2,450 (7 x $350); and that the defendant is entitled to an $85 credit for time served prior to sentencing. The State responds that the defendant has waived his right to object to his fine; that there was sufficient evidence to support the imposition of the fine; and that even if the fine was above the actual value of the cocaine, the relevant statute allows a fine in excess of the actual value. The State concedes that the defendant is entitled to credit for time served prior to sentencing.

Regarding the waiver argument, we note that in his motion for reconsideration of his sentence, the defendant argued that the evidence presented at the sentencing hearing did not warrant a fine of $3,380. We therefore find that he sufficiently preserved this issue for appeal.

On the merits, we note that section 5 — 9—1.1 of the Unified Code of Corrections provides that the street value of the illegal substance seized “shall be determined by the court on the basis of testimony of law enforcement personnel and the defendant as to the amount seized and such testimony as may be required by the court as to the current street value of the *** controlled substance seized.” (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 9—1.1.) In People v. Lusietto (1989), 131 Ill. 2d 51, 544 N.E.2d 785, the supreme court stated that it is not unreasonable for a trial court to accept the testimony of a narcotics officer as to the street value of drugs seized, if the officer has sufficient special knowledge and familiarity with the controlled substance to assist the court in determining the proper fine. The court further noted that the opinion of the officer must be reasonable in light of all the evidence. In People v. Sedrel (1989), 184 Ill. App. 3d 1078, 540 N.E.2d 792, this court stated that to impose a fine commensurate with the value of the cocaine seized, it is imperative that the substance seized be conclusively established to be cocaine.

In the instant case, Officer Lambert offered what under the circumstances can only be termed a wild guess regarding the amount of cocaine seized. He opined that the defendant had 10 to 15 grams. However, this was contradicted by the forfeiture complaint, which alleged the defendant had six packets weighing between one-eighth and one-fourth of a gram each, plus a seventh packet of unstated weight. Further, Lambert stated that all of the packets appeared to contain the same amount of substance.

The only other evidence was the prosecutor’s unsupported “understanding” that the cocaine was worth $350 per packet. Not only does that figure appear extremely inflated, but there was no evidence that six of the packets even contained cocaine.

The amount of evidence necessary to adequately establish the street value of a given drug obviously varies from case to case. Clearly, though, the legislature and the supreme court intended for the sentencing court to have some concrete, evidentiary basis for the fine imposed. A court may not simply pull a figure out of the air. As such, the State’s contention that courts may set fines above the actual value of the illegal substance is irrelevant. Even if that is true, the court is still required to legitimately establish the value of the substance in the first place.

We therefore find it necessary to vacate the street value fine and remand the cause for a new hearing. The State concedes that the defendant is entitled to a $5-per-day credit for the time he served prior to his conviction. (Ill. Rev. Stat. 1989, ch. 38, par. 110 — 14.) We agree and therefore instruct the sentencing court to reduce whatever fine it imposes by $85.

The order of the circuit court of Rock Island County fining the defendant $3,380 is vacated, and the cause is remanded for further proceedings consistent with this opinion. The remainder of the judgment is affirmed.

Affirmed in part; vacated and remanded in part.

BARRY and McCUSKEY, JJ., concur.


author: PRESIDING JUSTICE STOUDER

text:
    DANIEL W. SHERWOOD, Plaintiff-Appellant, v. JOSEPH H. RIGSBY III, Defendant-Appellee.
    Third District
    No. 3 — 90—0887
    Opinion filed October 7, 1991.
    Hafele, Thiemann & Carter, of Peoria (James R. Carter, of counsel), for appellant.
    Barash, Stoerzbach & Henson, P.C., of Galesburg (Dwayne I. Morrison, of counsel), for appellee.
   PRESIDING JUSTICE STOUDER

delivered the opinion of the court:

The plaintiff, Daniel W. Sherwood, appeals from a judgment in favor of the defendant, Joseph H. Rigsby, which denied Sherwood’s complaint for injunctive relief. Sherwood sought to enforce the terms of a restrictive covenant running with a parcel of real estate owned by Rigsby. We reverse and remand.

The record shows Sherwood is the owner of lot 60 and the northern one-half of lot 59 in the Fair Acres North Extension No. 1 subdivision in Galesburg, Illinois. These two parcels combined are designated lot 1 of the Sherwood-Swanson subdivision. Hereinafter, Sherwood’s property will be referred to as lot 1. Lot 1 is improved by a residence.

Rigsby is the owner of lot 58 and the southern one-half of lot 59 in the Fair Acres subdivision. These two undeveloped parcels are also known as lot 2 of the Sherwood-Swanson subdivision, and will be referred to as lot 2. In addition, Rigsby owns a tract of undeveloped real estate to the immediate east of lots 1 and 2. Rigsby filed a proposed subdivision plat with the City of Galesburg to subdivide the real estate to the east of lots 1 and 2 into eight parcels to be used for single-family residences. As part of his plans, Rigsby proposed to build a public access street to his proposed development across lot 2. All the parcels involved in this case are zoned single-family residential.

Sherwood filed a petition for a temporary restraining order to enjoin construction of a street on lot 2. By agreement of the parties, an order granting the temporary restraining order (TRO) was entered on August 8, 1990. Subsequently, Sherwood filed a complaint for injunction to enforce a restrictive covenant which governed the use of all lots in the Fair Acres subdivision.

Following a hearing, the trial court issued a lengthy opinion in which the court denied injunctive relief and dissolved the TRO.

On appeal, Sherwood contends the trial court erred in denying injunctive relief. Sherwood asserts the proposed use of lot 2 as a public street violates a provision of the restrictive covenants to which lot 2 is subject.

Although restrictions on the use of property conveyed in fee are not favored, the court will enforce such restrictions where they are reasonable, clear, definite and not contrary to public policy. (Freehling v. Development Management Group, Inc. (1979), 75 Ill. App. 3d 243, 393 N.E.2d 646.) The generalization that all doubts and ambiguities shall be resolved in favor of free use and against restrictions cannot be used to ignore or override specific language of a restrictive covenant. (Mertel v. Howard Johnson Co. (1989), 191 Ill. App. 3d 114, 547 N.E.2d 670.) The person in whose favor a restrictive covenant runs is prima facie entitled to its enforcement. (Wier v. Isenberg (1981), 95 Ill. App. 3d 839, 420 N.E.2d 790.) More importantly, it is .well settled in Illinois that the mere breach of a covenant is sufficient grounds to enjoin the violation and plaintiff is not required to show injury. Freehling v. Development Management Group, Inc. (1979), 75 Ill. App. 3d 243, 393 N.E.2d 646.

The covenant in the instant case provides: “All lots shall be used only for residential purposes. No building shall be erected, altered, placed or permitted to remain on any lot other than one detached single-family dwelling not to exceed two and one-half stories in height, with a private garage for not less than one nor more than three cars.”

The trial court found the only issue was whether the proposed use of lot 2 for a public street was contrary to the terms of the restrictive covenant. The trial court determined that given the fact Rigsby proposed to use lot 2 for a public street, the language of the restrictive covenant was not clear and the purpose not obvious. In the written opinion, the court stated: “The obvious meaning of the initial sentence of paragraph (1) [quoted above] is that the property in the subdivision is to be used for residential purposes rather than commercial purposes or industrial purposes but the language of the restrictive covenant does not, in its plain and obvious meaning, prevent [Rigsby] from using the property as a street.”

Having determined that the plain and obvious language of the restrictive covenant did not prevent the use of lot 2 for a street, the trial court went on to determine the intent of the drafters of the covenant. The trial court concluded the covenant was not “intended to prevent the construction of a public street that would be use[d] to serve residential property.”

The parties agree there is no Illinois case which directly addresses the situation presented in the instant case. In addition, after reviewing the cases from other jurisdictions cited by the parties and the trial court, we find them of limited dispositive guidance.

However, we find extensive analysis unnecessary because we view the language of the restrictive covenant as clear and unambiguous. The covenant states that all lots in the subdivision “shall be used only for residential purposes.” A street, although it may serve residential property, is not a “residential purpose” within the plain meaning of that term. Therefore, we find the trial court erred in holding the language of the covenant was ambiguous, and in denying Sherwood injunctive relief to enforce the covenant. Given this conclusion, we need not address the other arguments raised by the parties.

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

Reversed and remanded.

BARRY and GORMAN, JJ., concur.


text:
    CHERRYL E. THOMPSON, Plaintiff-Appellant, v. ECONOMY SUPER MARTS, INC., et al., Defendants-Appellees.
    Third District
    No. 3 — 90—0662
    Opinion filed November 8, 1991.
    Anesi, Ozmon & Rodin, Ltd., of Chicago (James J. Morici, Jr., of counsel), for appellant.
    Kenneth T. Garvey and Robert Spitkovsky, Jr., both of Bresnahan & Garvey, of Chicago (Kevin R O’Connell, of counsel), for appellees.
   JUSTICE HAASE

delivered the opinion of the court:

The plaintiff, Cherryl E. Thompson, brought this negligence action against the defendants, Economy Super Marts, Inc., and Weems & Bruns Corp., to recover damages for personal injuries she sustained when she slipped on a lettuce leaf in the produce section of the defendants’ grocery store. A jury awarded the plaintiff $12,974.96 in recoverable damages after finding that she was 55% contributorily negligent. Thereafter, the trial court granted the defendants’ post-trial motion for a judgment notwithstanding the verdict. The plaintiff appeals from that decision.

The plaintiff testified at trial that on July 3, 1986, she picked up a watermelon in the produce section of the defendants’ store and began to walk through the produce aisle. At that point, she slipped and fell on a lettuce leaf and water. She had not seen the leaf or the water before her fall and did not know how long they were there. She noted that the lettuce leaf was green and brown, had dirt on it, and appeared beat up. According to the plaintiff, her fall occurred about two or three feet to the left of the produce aisle. She also stated that the fruits and vegetables in the produce aisle were kept on ice.

Terida Thompson, the plaintiff’s daughter, substantially corroborated the plaintiff’s testimony. Additionally, she stated that the lettuce leaf looked old and like it had been there awhile. She further stated that she had walked through the produce aisle once before the accident occurred and did not see any water or a lettuce leaf on the floor prior to the plaintiff’s fall.

Gene Pesavento, the assistant store manager, testified that it was his duty to make sure that all areas in the grocery store were clear and free of debris. He agreed that the produce department requires constant surveillance to ensure that debris is not left on the floor. He also agreed that debris poses a tripping hazard.

Pesavento further testified that no one was specifically charged with the responsibility of constantly monitoring the floor of the produce department. He explained that the defendants’ employees knew that they were supposed to keep an eye on the entire store, and not specifically on one area.

Phil Woock, the store’s general manager, testified that he was not working at the time of the plaintiff’s accident. He stated that the store’s floor was dry mopped and swept every night in July 1986. In addition, the floors were swept during the day as needed, and spills were cleaned as needed. The floors were professionally mopped and waxed every Wednesday night, and the plaintiff’s accident occurred on a Thursday. Woock further testified that a part-time employee was on duty in the produce department at the time of the accident, but he could have been working in the back room when it occurred. Woock also testified that all store workers have the responsibility of keeping the floor clean if no one is working in the produce department at a particular time.

Donald Schreiner and Rubin Amazan each testified that they were working at the store at the time of the plaintiff’s accident, but did not witness the fall. They both stated that they did not observe a lettuce leaf on the floor after inspecting the floor following the accident.

Based on the foregoing evidence, the jury found that the plaintiff suffered $28,833.24 in damages, but it awarded her only $12,974.96 because it found that she was 55% contributorily negligent. Thereafter, the defendants filed a post-trial motion requesting that the trial court enter a judgment notwithstanding the verdict. The trial court subsequently granted the defendants’ motion, finding that: (1) no evidence was presented that the defendants had actual or constructive notice of the lettuce leaf and water for a sufficient length of time that their presence should have been discovered; and (2) the jury’s award of damages was a compromise verdict and could not be sustained.

On appeal, the plaintiff initially argues that the trial court erred in granting a judgment notwithstanding the verdict. She contends that the court mistakenly found that she did not present any evidence that the defendants had actual or constructive notice of the lettuce leaf.

It is well settled that a defendant owes a business invitee on the defendant’s premises a duty to exercise ordinary care in maintaining the premises in a reasonably safe condition. (Ward v. K mart Corp. (1990), 136 Ill. 2d 132, 554 N.E.2d 223; Ferminas v. Montgomery Ward & Co. (1975), 60 Ill. 2d 469, 328 N.E.2d 290.) Where a business invitee is injured by slipping on the premises, liability may be imposed if the substance was placed there by the negligence of the proprietor or his servants, or, if the substance was on the premises through acts of third persons or there is no showing how it got there, liability may be imposed if it appears that the proprietor or his servant knew of its presence, or that the substance was there a sufficient length of time so that in the exercise of ordinary care its presence should have been discovered. (Olinger v. Great Atlantic & Pacific Tea Co. (1961), 21 Ill. 2d 469, 173 N.E.2d 443; Wroblewski v. Hillman’s, Inc. (1963), 43 Ill. App. 2d 246, 193 N.E.2d 470.) Thus, where the foreign substance is on the premises due to the negligence of the proprietor or his servants, it is not necessary to establish their knowledge, actual or constructive; whereas, if the substance is on the premises through acts of third persons, the time element to establish knowledge or notice to the proprietor is a material factor. Blake v. Dickinson (1975), 31 Ill. App. 3d 379, 332 N.E.2d 575.

Where there is proof that the foreign substance was a product sold or related to the defendant’s operations, and the plaintiff offers some further evidence, direct or circumstantial, however slight, such as the location of the substance or the business practices of the defendant, from which it could be inferred that it was more likely that the defendant or his servants, rather than a customer, dropped the substance on the premises, the trial court should allow the negligence issue to go to the jury. (Donoho v. O’Connell’s, Inc. (1958), 13 Ill. 2d 113, 148 N.E.2d 434.) However, even where there is proof that the foreign substance was related to the defendant’s business, but no further evidence is offered other than the presence of the substance and the occurrence of the injury, the defendant is entitled to a directed verdict, such evidence being insufficient to support the necessary inference. Olinger v. Great Atlantic & Pacific Tea Co. (1961), 21 Ill. 2d 469, 173 N.E.2d 443; Wroblewski v. Hillman’s, Inc. (1963), 43 Ill. App. 2d 246, 193 N.E.2d 470.

The plaintiff argues that she satisfied the requirements set forth in Donoho of introducing “further evidence, however slight, such as the location of the substance or the business practice of the defendant, from which it could be inferred that it was more likely that the defendant or his servants, rather than a customer, dropped the substance on the premises.” She contends that evidence of the wilted lettuce leaf and the fact that it was found near the unsupervised produce section where vegetables were packed on ice was sufficient to allow the case to go to the jury under Donoho.

We disagree. The Illinois Supreme Court in Donoho undertook an extensive analysis of the circumstances under which negligence could be inferred from the conduct of the defendant when it was uncertain who was responsible for the foreign substance dropped on the premises. In Donoho, the plaintiff slipped and fell on an onion ring at the defendant’s restaurant. It was unknown who dropped the onion ring. Yet, the court found that from the circumstantial evidence, it could be reasonably inferred that it was more likely that the onion ring was on the floor through the acts of the defendant’s servants rather than a customer. The court based its decision on the additional circumstantial evidence that the onion ring on which the plaintiff slipped was located by a table cleared by a bus boy, under the bus boy’s practice of clearing tables food particles could drop to the floor, and testimony that after the bus boy cleared the table in question no one else ate there before the plaintiff fell.

In the present case, however, there was no direct or circumstantial evidence indicating that it was more likely that the defendants’ servants dropped the item than a customer. Furthermore, the plaintiff did not present any evidence that the ice, which packed the produce, was directly above the water spot. Nor did she present any evidence regarding how the ice was packed or how easily it might have been to jar it loose, spilling it to the floor. Moreover, there was no specific evidence that the defendant’s business practice was unusual or created any special hazard.

The plaintiff also relies on Perminas v. Montgomery Ward & Co. (1975), 60 Ill. 2d 469, 328 N.E.2d 290, in support of her position. In Perminas, the plaintiff slipped on a skateboard-like object in an aisle of the defendant’s store. There, one of the defendant’s employees actually had knowledge that the object was creating a dangerous condition. The court imposed liability on the defendant because the defendant, after receiving notice through its employee that its product was creating a dangerous situation, failed to return its premises to a safe condition or warn its customers.

We find that the plaintiff’s reliance on Perminas is misplaced. In the present case, unlike Perminas, the defendants did not have actual or constructive knowledge of the situation. Furthermore, the record in the instant case does not contain any evidence regarding the length of time the substance was on the floor from which it could be inferred that the defendants had constructive notice.

After reviewing the evidence in the aspect most favorable to the plaintiff, we conclude that the evidence so overwhelmingly favored the defendants that no contrary verdict could ever stand. Accordingly, we find that the trial court properly granted the defendants’ motion for a judgment notwithstanding the verdict. Our resolution of the foregoing issue renders the parties’ remaining issues moot.

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

Affirmed.

STOUDER, P.J., and McCUSKEY, J., concur.


text:
    THE CADLE COMPANY II, INC., Plaintiff-Appellant, v. PHYLLIS L. STAUFFENBERG, Defendant-Appellee (GLENN L. STAUFFENBERG, a/k/a Glen Stauffenberg, et al., Defendants).
    Third District
    No. 3-91-0112
    Opinion filed November 8, 1991.

      Larry D. Serene, of Kankakee, for appellant.
    Sacks & Albrecht, of Kankakee (Leonard E Sacks, of counsel), for appellee.
   JUSTICE SLATER

delivered the opinion of the court:

Plaintiff appeals from the trial court’s dismissal of its complaint for foreclosure. The issue on appeal is whether a mortgage purporting to convey real estate held in joint tenancy, signed by only one of the two joint tenants, is effective to convey the interest of that joint tenant. We find that it is. The only parties before this court are the plaintiff, Cadle Company II, Inc., and defendant, Phyllis L. Stauffenberg.

The record shows that on May 28, 1982, the defendant’s husband, Glenn Stauffenberg, executed a junior mortgage agreement which purported to mortgage a parcel of real estate in its entirety to American State Bank (Bank) as security for a loan. The mortgaged real estate, owned in joint tenancy by Mr. and Mrs. Stauffenberg, served as their residence. On the mortgage agreement, both the defendant’s and Mr. Stauffenberg’s names were typed in as mortgagors, and signature lines for both appeared at the end of the document. However, the mortgage was signed only by Mr. Stauffenberg. The Bank loaned a sum of money to Mr. Stauffenberg evidenced by a promissory note with the mortgage as security. Mr. Stauffenberg defaulted on the loan, and it appears that he has since taken bankruptcy. The Bank called the note and took judgment on it in November 1982. Sometime after the mortgage was executed, Mr. Stauffenberg and the defendant were divorced, at which time Mr. Stauffenberg quitclaimed his interest in the mortgaged real estate to the defendant. The defendant is now the sole owner of the real estate.

The Bank was declared insolvent in 1983. The Federal Deposit Insurance Corporation conveyed the judgment on the Stauffenberg note and the mortgage in question to the plaintiff in 1988. In March 1990, plaintiff filed a complaint to foreclose on the mortgage. Defendant filed a motion to dismiss the complaint, arguing that the mortgage was void because it had not been signed by both joint tenants. At the hearing on the motion to dismiss, plaintiff argued it was attempting to foreclose only on the undivided one-half interest which Mr. Stauffenberg owned at the time he executed the mortgage. The trial court granted the motion to dismiss, and the plaintiff then filed motions for reconsideration and for leave to amend the complaint by interlineation. The latter motion was granted, and plaintiff amended the complaint to make it clear that the foreclosure related only to an undivided one-half interest in the real estate. The motion for reconsideration was denied, and the plaintiff filed this appeal.

It is well settled that a cotenant may mortgage his interest in jointly held property. (Harms v. Sprague (1984), 105 Ill. 2d 215, 473 N.E.2d 930.) Where a cotenant who owns less than the entire interest attempts to mortgage the whole, the mortgage is valid as to the actual interest of the mortgagor. South Side Bank & Trust Co. v. Sherlock Homes, Inc. (1955), 6 Ill. App. 2d 138, 126 N.E.2d 742.

In South Side Bank & Trust Co., Sherlock Homes, Inc., executed a mortgage conveying a parcel of real estate to South Side Bank & Trust Company as security for a loan. At the time the mortgage was executed, Sherlock Homes, Inc., had only an undivided one-half interest in a portion of the mortgaged property. Sherlock Homes, Inc., defaulted on the loan, and South Side Bank & Trust Company filed a foreclosure action. A decree of foreclosure was entered finding that the mortgage was a valid conveyance of the mortgagor’s interest in the property and ordering the sale of an undivided one-half interest in the property. (South Side Bank & Trust Co., 6 Ill. App. 2d at 140.) The court affirmed the foreclosure decree, holding that “[although the mortgage given by Sherlock Homes, Inc., purported to grant a greater estate than it actually owned, the conveyance was void only as to the excess.” (South Side Bank & Trust Co., 6 Ill. App. 2d at 141.) The court relied on Triger v. Carter Oil Co. (1939), 372 Ill. 182, 23 N.E.2d 55, where our supreme court held that when a land owner purports to grant, by deed or other instrument, a greater estate than he actually owns, the conveyance is void only as to the excess but is operative to pass the estate which the grantor has. See also Moore v. Gariglietti (1907), 228 Ill. 143, 81 N.E. 825.

Similarly, here, the mortgage purporting to convey the entire interest in the property owned jointly by Mr. Stauffenberg and the defendant was signed only by Mr. Stauffenberg. We find the instrument to be a valid mortgage of Mr. Stauffenberg’s undivided one-half interest in the jointly held property.

The defendant relies heavily on Dineff v. Werneeke (1963), 27 Ill. 2d 476, 190 N.E.2d 308. In Dineff, the plaintiff offered to buy a parcel of real estate owned jointly by Elsie Werneeke and her brother, Louis Werneeke. Ms. Werneeke sent a letter of acceptance to the plaintiff which was not signed by Mr. Werneeke. The property was then sold by the Werneckes to a third party. Plaintiff brought an action for specific performance on the contract. The court found that because Mr. Werneeke did not sign the letter of acceptance, the contract was unenforceable. The court stated:

“ ‘It is obvious that plaintiff knew with whom he was dealing; that he was not misled as to the ownership; and that his offer of purchase was made to both owners for the entire title. Without the signature of both owners, no contract was formed, and there could be no breach upon which plaintiff could base an action for specific performance.’ ” Dineff, 27 Ill. 2d at 482, quoting Madia v. Collins (1951), 408 Ill. 358, 362, 97 N.E.2d 313.

Defendant contends here, as in Dineff, the Bank was negotiating with both of the joint tenants for a mortgage of the entire interest in the real estate. The defendant’s basis for this contention is that both of the joint tenants are named as mortgagors in the instrument and signature lines were provided for both of them on the instrument. Therefore, the defendant argues, since the intention of the Bank was to obtain a mortgage of the premises from both joint tenants and only one joint tenant signed the mortgage, the instrument should be found to be unenforceable as was the contract in Dineff.

Dineff is clearly distinguishable from the instant case. In Dineff, the plaintiff was attempting to enforce an agreement to convey the entire interest in the jointly held property without the signatures of both cotenants. The court pointed out that there was no prayer for partial performance against the cotenant who had signed the agreement. (Dineff, 27 Ill. 2d at 482.) It is well established that one cotenant cannot convey the interest of another cotenant without proper authority.

Here, however, the plaintiff is not attempting to foreclose on the entire interest in the property. The foreclosure complaint is against only the undivided one-half interest of the joint tenant who signed the mortgage.

We disagree with the defendant’s argument that the clear intention of the parties required the defendant’s signature on the mortgage in order to be valid simply because defendant’s name appeared in the body of the instrument and a signature line was provided. In Heckmann v. Detlaff (1918), 283 Ill. 505, 119 N.E. 639, the names of both Mr. and Mrs. Heckmann appeared in the body of a deed purporting to convey jointly held property. The deed, signed by the husband only, was held to be valid to convey the husband’s interest in the property, subject to his wife’s homestead exemption. The court stated:

“There is nothing in the record to show that this deed was not intended to be delivered unless both John M. Heckmann and his -wife signed it, except the fact that the names of both husband and wife were in the body of the instrument and in the acknowledgment. The rule seems to be general that a deed naming two or more parties as grantors, executed by only a portion of them, is valid as to those executing it.” Heckmann, 283 Ill. at 513.

It is clear that Mr. Stauffenberg intended to mortgage the real estate. There is nothing in the mortgage to indicate that it was not to be binding unless the defendant signed it also. We see no reason to deviate from the established rule that when a property owner attempts to convey a greater interest in the property than he actually has, the conveyance is valid to the extent of his interest and void only as to the excess.

For the reasons stated above, the order of the trial court dismissing the complaint is reversed. This cause is remanded for further proceedings.

Reversed and remanded.

GORMAN and McCUSKEY, JJ., concur.


author: JUSTICE McCUSKEY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JUAN SOLANO, Defendant-Appellant.
    Third District
    No. 3-91-0067
    Opinion filed November 8, 1991.
    Mark D. Fisher, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Joseph Navarro, State’s Attorney, of Ottawa (John X. Breslin and Jay Paul Hoffmann, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McCUSKEY

delivered the opinion of the court:

The defendant, Juan Solano, pled guilty to reckless homicide and driving under the influence of alcohol (Ill. Rev. Stat. 1989, ch. 38, par. 9 — 3(a); ch. 95V2, par. 11 — 501(d)(3)). In exchange for his pleas, the State dismissed another reckless homicide charge. The trial court initially sentenced the defendant to concurrent terms of 21/2 years’ imprisonment for the reckless homicide and 11/2 years for driving under the influence of alcohol. Subsequently, the trial judge sua sponte reduced the sentence for reckless homicide to two years and four months with credit for time served. The defendant now appeals this sentence. We affirm.

The record shows that the 16-year-old defendant and several friends had been drinking for several hours at a party. Twice during the party, the defendant left with others and purchased beer. Around midnight, he left the party to drive some friends home. Before leaving the party, a friend warned the defendant that he was in no condition to drive. The friend said he would be back at the party in one hour and would then drive the defendant and his friends home. The defendant ignored the warning and proceeded to drive his friends home.

After dropping one boy at home, the defendant proceeded to a railroad intersection. The railroad gates were down and the lights were flashing. The three remaining passengers in his car, Kerri Norman, Tanya Broyles, and Nancy Thomas, told the defendant not to drive around the gates. Despite seeing a train coming, the defendant proceeded around the gates and subsequently collided with the train. As a result, Kerri Norman was killed, and Tanya Broyles was severely injured and remained in a coma for two weeks. The defendant was also injured. A blood test taken at the hospital after the accident indicated that the defendant’s blood-alcohol content was .156.

The defendant argues on appeal that the trial court abused its discretion in sentencing him. He asserts that the court did not properly weigh the factors in mitigation and considered improper factors in aggravation.

Sentencing is a matter of judicial discretion and absent an abuse of that discretion by the trial court, a sentence may not be altered on review. (People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541.) The defendant’s history, character, and rehabilitative potential, along with the seriousness of the offense, the need to protect society, and the need for deterrence and punishment, must be equally weighed. (People v. Darnell (1981), 94 Ill. App. 3d 830, 419 N.E.2d 384.) When there are mitigating factors before the court, the court is presumed to have considered the mitigating circumstances and there is no requirement that the trial judge recite and assign a value to each factor presented. People v. Meeks (1980), 81 Ill. 2d 524, 411 N.E.2d 9.

In the instant case, the defendant contends that the trial court did not assign enough weight to his rehabilitative potential, his young age, his lack of a prior criminal record, and his expressed remorse. We disagree. A careful reading of the trial judge’s remarks before sentencing clearly reveals that the judge recognized and considered each of these mitigating factors. In fact, he sua sponte lowered the defendant’s sentence so the defendant would be able to return to school in the fall. Under these circumstances, we cannot say that the judge did not place enough weight on the mitigating factors.

The defendant also contends that the trial court considered improper factors in aggravation. First, he argues that the court improperly considered the bodily harm to Tanya Broyles as an aggravating factor of the defendant’s driving under the influence conviction. He notes that serious bodily harm is an element of the Class 4 felony he was convicted of, and therefore it cannot properly be considered as a factor in aggravation.

In People v. Saldivar (1986), 113 Ill. 2d 256, 497 N.E.2d 1138, the supreme court stated that a factor should not be considered in aggravation if it is implicit in the offense. However, the court further stated that the degree of harm to the victim may be considered as an aggravating factor even in cases where serious bodily harm is implicit in the offense.

In the instant case, the trial judge made it quite clear that he was considering the degree of harm done to Ms. Broyles as the result of the defendant’s reckless actions. This consideration was proper.

The defendant also contends that the trial judge improperly considered his history of illegal alcohol consumption and his blood-alcohol concentration of .156 as aggravating factors. He argues that they should have been considered in mitigation. We disagree.

Prior criminal activity may be considered as an aggravating factor. (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 5—3.2(a)(3).) The particular nature and circumstances surrounding an offense are relevant factors to be considered in sentencing. People v. Gibbs (1977), 49 Ill. App. 3d 644, 364 N.E.2d 491.

In the instant case, the defendant admitted that he had engaged in underage drinking on many occasions prior to committing the instant offenses. There was no conclusive evidence presented which indicated that the defendant was an alcoholic and could not control his behavior. Thus, the trial judge properly considered the defendant’s prior criminal activity of underage drinking as a factor in aggravation. Additionally, the trial judge correctly noted that reckless homicide does not necessarily involve driving while intoxicated. Therefore, the judge properly considered the level of the defendant’s blood-alcohol content with regard to the nature and circumstances surrounding the offense.

Finally, we note that the trial judge was properly concerned with deterring this kind of conduct, especially in light of the testimony introduced which indicated that many young people in the area were involved in underage drinking.

In sum, the trial judge properly considered and balanced all of the factors presented in aggravation and mitigation before sentencing the defendant. Based on the record, we cannot say he abused his discretion.

The judgment of the circuit court of La Salle County is affirmed.

Affirmed.

GORMAN and HAASE, JJ., concur.


text:
    AETNA CASUALTY AND SURETY COMPANY, Plaintiff-Appellant, v. CROWTHER, INC., Defendant-Appellee (Paul Benigni, Defendant).— AETNA CASUALTY AND SURETY COMPANY, Plaintiff-Appellant, v. CROWTHER, INC., Defendant-Appellee (Tom Clark, Defendant). —AETNA CASUALTY AND SURETY COMPANY, Plaintiff-Appellant, v. CROWTHER, INC., Defendant-Appellee (Craig Nixon, Defendant).
    Third District
    Nos. 3 — 91—0196 through 3 — 91—0198 cons.
    Opinion filed November 5, 1991.

      Sweeney & Riman, of Chicago (Georgene M. Wilson, of counsel), for appellant.
    Herschbach, Tracy, Johnson, Bertani & Wilson, of Joliet (Roger D. Rickmon, of counsel), for appellee.
   JUSTICE McCUSKEY

delivered the opinion of the court:

Plaintiff, Aetna Casualty & Surety Company (Aetna), appeals from an order of the circuit court which quashed the service of summons on defendant, Crowther, Inc. (Crowther), for lack of personal jurisdiction. The issue presented is whether Crowther, a nonresident defendant, transacted business in this State so as to come within the reach of the State’s long arm jurisdiction. We conclude that the provisions of the long arm statute were met in this case. Therefore, we reverse the order of the circuit court.

In 1979, Crowther and Aetna entered into contracts for workers’ compensation and general liability insurance coverage for Crowther’s roofing business. The terms of the workers’ compensation policy limited coverage to injuries and claims made under the workers’ compensation laws of Florida. Crowther is a Florida corporation and is not registered as a foreign corporation in Illinois.

In 1980, Lee Crowther, president of Crowther, contacted defendants Paul Benigni, Tom Clark, and Craig Dixon in Illinois and offered them summer employment with Crowther in Florida. Benigni and Clark were contacted by telephone; the offer of employment to Dixon was relayed by his father. Lee Crowther arranged for Benigni and Clark to drive to Florida from Illinois in an automobile registered to Crowther. Dixon was instructed to travel by airplane and seek reimbursement from Crowther.

On June 9, 1980, Benigni, Clark, and Dixon were injured in Florida during the course of their employment for Crowther. The three filed claims for workers’ compensation benefits in Illinois. Crowther demanded coverage from Aetna for the Illinois claims. On June 1, 1990, Aetna filed a declaratory judgment action in the circuit court of Will County to determine Aetna’s liability to Crowther.

Service of process was made upon Crowther’s registered agent in Florida. Crowther filed a special and limited appearance and moved to quash the service of summons on the ground that Crowther had not transacted any business in Illinois within the meaning of Illinois’ long arm statute. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 209.) The court agreed and entered an order quashing service. Aetna appeals.

We find instructive the Illinois Appellate Court’s analysis of personal jurisdiction in Ideal Insurance Agency, Inc. v. Shipyard Marine, Inc. (1991), 213 Ill. App. 3d 675, 678, 572 N.E.2d 353, 355:

“The issue before this court is whether the State of Illinois can properly exercise jurisdiction over the nonresident defendant. This issue involves three similar but distinct analyses which can easily be confused and combined. The first is whether a nonresident defendant was ‘doing business’ in this State so as to maintain a presence subjecting it to in personam jurisdiction for all matters. The second analysis is, alternatively, where a defendant is not doing business in this State generally, whether it has sufficiently transacted a business act in this State to come within the ‘long-arm’ jurisdiction. Third, whether the defendant has created certain minimum contacts with this State such that due process of law would not be violated in compelling it to litigate the controversy in this State.”

The Illinois Supreme Court recently clarified the Illinois jurisdictional analysis. (Rollins v. Ellwood (1990), 141 Ill. 2d 244, 565 N.E.2d 1302.) In Rollins, the court stated that the question of whether it is fair to subject a nonresident defendant to Illinois jurisdiction cannot be determined solely by looking at the express terms of the long arm statute or the Federal due process standard. Rather, Illinois courts must consider whether “it is fair, just, and reasonable to require a nonresident defendant to defend an action in Illinois, considering the quality and nature of the defendant’s acts which occur in Illinois or which affect interests located in Illinois.” 141 Ill. 2d at 275, 565 N.E.2d at 1316.

The first prong of the Ideal Insurance analysis is not at issue in the present case since jurisdiction was not alleged on the basis that Crowther was doing business in this State such that it maintained a presence here. Crowther denied that it maintained an office or employees in Illinois, and Aetna admitted that Crowther conducted its business in Fort Meyers, Florida.

Aetna does aver, however, that jurisdiction is proper under Illinois’ long arm statute, which provides:

“(a) Any person *** who *** does any of the acts hereinafter enumerated! ] thereby submits such person * * * to the jurisdiction of the courts of this State as to any cause of action arising from the doing of any such acts:
(1) The transaction of any business within this State;
* * *
(c) Only causes of action arising from acts enumerated herein may be asserted against a defendant in an action in which jurisdiction over him or her is based upon this Section.” (Emphasis added.) Ill. Rev. Stat. 1983, ch. 110, par. 2 — 209.

To constitute the “transaction of any business” within this State, a defendant must voluntarily seek the benefits and protections of the laws of this State. (Konicki v. Wirta (1988), 169 Ill. App. 3d 21, 26, 523 N.E.2d 160, 164.)

“The purpose of the phrase ‘arising from’ is to insure that there is a close relationship between a cause of action against a nonresident defendant and his jurisdictional activities. The minimum relationship required by the phrase is that the plaintiff’s action ‘be one which lies in the wake of the commercial activities by which the defendant submitted to the jurisdiction of Illinois courts.’ [Citation.]” Volkswagen Insurance Co. v. Whittington (1978), 58 Ill. App. 3d 621, 624, 374 N.E.2d 954, 957.

The determination of whether a defendant sufficiently transacted business in Illinois so as to avail itself of the benefits of Illinois law requires consideration of several factors, including who initiated the transaction, where the contract was entered into, and where the performance of the contract was to take place. (Gordon v. Tow (1986), 148 Ill. App. 3d 275, 280-81, 498 N.E.2d 718, 722.) The record clearly shows that Crowther initiated the employment transaction, including the arrangement of transportation from Illinois for Benigni, Clark, and Dixon. We also find that the individual employment contracts were formed in Illinois. Although performance of the contracts was to occur in Florida, we note that none of the Gordon factors is controlling, and that Illinois cases provide little guidance in balancing these factors. Ideal Insurance Agency, 213 Ill. App. 3d at 680-81, 572 N.E.2d at 357.

The burden on the party asserting jurisdiction under the long arm statute is to make a prima facie showing that jurisdiction exists under the statute; on review, the appellate court must determine whether plaintiff met its burden of proof. (Boatmen’s Bank v. Adams (1989), 191 Ill. App. 3d 176, 185, 547 N.E.2d 742, 747-48.) We conclude that Crowther is amenable to the jurisdiction of Illinois courts under the long arm statute because the declaratory action arose from the transaction of business in Illinois. We find a close relationship between Aetna’s declaratory action and Crowther’s jurisdictional activities. Also, the present action is derivative of the Illinois workers’ compensation proceedings. Accordingly, we find that Aetna has met its burden of proof.

Next, we consider whether the exercise of jurisdiction was constitutionally permissible under the due process clause of the fourteenth amendment (U.S. Const., amend. XIV). The Federal guarantee of due process requires that a nonresident defendant “have certain minimum contacts with [the forum] such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ [Citations.]” (International Shoe Co. v. Washington (1945), 326 U.S. 310, 316, 90 L. Ed. 95, 102, 66 S. Ct. 154, 158.) These standards of Federal due process delineate “ ‘the outer limits beyond which a State may not go to acquire jurisdiction over nonresidents.’ [Citation.]” Rollins, 141 Ill. 2d at 271, 565 N.E.2d at 1314.

Applying the Federal due process standard, as refined by Rollins, we conclude that it is fair, just, and reasonable for the Illinois courts to assert personal jurisdiction over Crowther. It is not unreasonable for the employment contracts secured by Crowther to have arisen into claims for workers’ compensation benefits and, hence, an expectation of defending Aetna’s action for a declaration on its policy of insurance. We further find that Crowther’s contacts with Illinois satisfy the minimum contacts needed so as not to offend traditional notions of fair play and substantial justice. Therefore, we reverse the order of the circuit court which quashed the service of summons on Crowther.

Reversed.

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


text:
    HERBERT L. NEUSWANGER, Adm’r of the Estate of David Neuswanger, Deceased, Plaintiff-Appellee, v. IKEGAI AMERICA CORPORATION et al., Defendants (Atlantic Mutual Insurance Company, Respondent-Appellant; Robert A. Hoffman, Contemnor).
    Third District
    No. 3 — 90—0763
    Opinion filed October 28, 1991.
    — Rehearing denied December 16, 1991.

      Robert A. Hoffman, of Thomas, Mamer & Haughey, of Champaign, for appellant.
    Kehr, Cassidy & Mueller, of Peoria, for appellee.
   JUSTICE BARRY

delivered the opinion of the court:

Atlantic Mutual Insurance Company (Atlantic Mutual) and attorney Robert A. Hoffman, counsel for Atlantic Mutual, appeal from a September 26, 1990, order of the circuit court of Peoria County directing Atlantic Mutual to produce a certain videotape pursuant to plaintiff’s subpoena duces tecum, finding Hoffman in contempt of court for willfully refusing to produce the videotape, and imposing a jail sentence on the attorney until such time as the videotape is surrendered. The sanction has been stayed pending resolution of this appeal. The issues presented for our review are: (1) whether the videotape at issue is protected from discovery by attorney-client or work-product privileges; and (2) whether the court erred in adjudging Hoffman in contempt. We affirm.

The facts relevant to this appeal are not in dispute. The underlying lawsuit arose from an industrial accident. On February 18, 1987, plaintiff’s decedent, David E. Neuswanger, was working on a lathe for his employer, Quality Metal Products, Inc. According to the complaint, Neuswanger’s head was pinned in the lathe’s slide action, and he died as a result of the injuries. Plaintiff brought the instant suit on November 3, 1987, against Ikegai American Corporation, the manufacturer of the lathe. By subsequent amendments, plaintiff has included BME Corporation and its predecessor, Behr Machinery & Equipment Corporation, sales and distributing agent for the lathe, as parties defendant. Quality Metal has not yet been made a party to the suit; however, during the course of discovery, plaintiff served a subpoena duces tecum on Quality Metal’s workers’ compensation insurer, Atlantic Mutual Insurance Co., requesting Atlantic Mutual’s entire workers’ compensation file for the decedent, including a videotape prepared by a consulting expert in anticipation of litigation.

It is not disputed that the videotape shows the expert’s field inspection of the lathe involved in the accident that killed David Neuswanger. Nor is it disputed that in making the videotape Atlantic Mutual’s expert employed the same speed, cycle and type of work being performed by plaintiff’s decedent when he had his accident. It further appears that at some point after the videotaping of that inspection, Quality Metal installed a clear plexiglass shield on the machine as a safety measure. Atlantic Mutual informed plaintiff that the tape would not be surrendered voluntarily, and plaintiff filed a petition for rule to show cause why Atlantic Mutual should not be found in contempt of court. The court issued an order accordingly, and Atlantic Mutual, in response, sought the court’s protection on the basis of privilege and work product pursuant to Supreme Court Rule 220 (134 Ill. 2d R. 220).

At the subsequent hearing on the petition, Judge Eagleton ruled in Atlantic Mutual’s favor, denied plaintiff’s motion for a finding of contempt and entered a protective order as requested by the insurer. Plaintiff then moved for reconsideration. The motion was ultimately heard by Judge Courson and granted. The court ordered Atlantic Mutual to produce the videotape, “after having made any audio deletions deemed necessary at the expense of the plaintiff.” Counsel for Atlantic Mutual stood on his claim of protection from disclosure. The court consequently found the insurer’s attorney in contempt for his refusal to produce and sentenced him as aforesaid.

The parties on appeal invite our interpretation of Supreme Court Rule 220(c)(5), which states:

“The identity, opinions and work product of consulting experts are discoverable only upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject matter by other means. However, documents, objects and tangible things as defined in Rule 214 which are in the possession of a consulting expert and which do not contain his opinions may be obtained by a request for that purpose served upon the party retaining him.” (134 Ill. 2d R. 220(c)(5).)

Atlantic Mutual claims the protection of Rule 220(c)(5) on the ground that the videotape is its consulting expert’s work product. The insurer argues that the exemption permitting discovery when the party seeking discovery of a consulting expert’s work product shows “exceptional circumstances” has not been met by plaintiff. In response, plaintiff contends first that Rule 220 applies only to “parties,” and since Quality Metal, Atlantic Mutual’s insured, has not been named as a party to this suit, the work product privilege is not available to Atlantic Mutual. We agree.

“ ‘[T]he term “parties” is a technical word which has a precise meaning in legal parlance. It designates the opposing litigants in a judicial proceeding — the persons seeking to establish a right and those upon whom it is sought to impose a corresponding duty or liability ***.’ ” (Evans v. Stoval (1980), 83 Ill. App. 3d 257, 259-60, 403 N.E.2d 1321, 1323, quoting 59 Am. Jur. 2d Parties §7 (1971).) The discovery rules (134 Ill. 2d Rules 201 through 224) are carefully drafted to distinguish between “parties” and other persons (e.g., 134 Ill. 2d R. 202 (“any party or person”); 134 Ill. 2d R. 214 (“a person not a party”); 134 Ill. 2d R. 215 (“[a] party or person”); and 134 Ill. 2d R. 219 (“a party or other deponent” and “a party, or any person at the instance of or in collusion with a party”)). Thus, the rules preserve the integrity of the technical legal distinction between “parties” and all other persons.

Rule 220 controls discovery with respect to expert witnesses and consulting experts and defines these experts only in terms of their qualifications and their roles as potential or anticipated witnesses for parties at trial. The rule discusses the duties and privileges of “parties” in the discovery of a “party’s” expert witness’ or consulting expert’s identity, opinions and work product. The rule makes no reference to discovery rights or privileges for other persons, potential parties or nonparties. If the rule drafters had intended to extend privileges or protections to nonparties, the rule could easily have been drafted to accomplish this purpose. This lack of reference to nonparties leads us to believe that the drafters of the rule did not intend to extend the privilege of nondisclosure contained in subparagraph 5 to persons who are nonparties to the action in which the discovery is sought.

Atlantic Mutual next raises the question as to whether the rule was intended to provide less protection for persons not involved in the litigation than it does for those who are. The committee comments to Rule 220 provide no guidance, and we are aware of no legal precedent on this point. However, we must concede that an anomalous situation is created if the protection from discovery afforded “parties” by the rule is unavailable to nonparties. This anomaly is particularly unsettling here because of Atlantic Mutual’s obvious interest in the litigation as insurer of the decedent’s employer. For this reason, we decline to rest our decision alone on Rule 220(c)(5)’s apparent inapplicability to nonparties.

Whether the videotape is subject to protection under Rule 220(c)(5) as “work product” or is discoverable as under Rules 220(c)(5) and 214 as an “object or tangible thing” is another aspect of the dispute before us. Although not directly on point, our supreme court provides guidance in a recent decision in which the court reviewed the work-product doctrine in the context of litigation files prepared in a toxic tort case and sought by the defendant’s insurer in a subsequent declaratory judgment action to determine insurance coverage issues. (Waste Management, Inc. v. International Surplus Lines Insurance Co. (1991), 144 Ill. 2d 178, 196.) The court there noted that Rule 201(b)(2) defines “work product” as “[m]aterial prepared by or for a party in preparation for trial[. It] is subject to discovery only if it does not contain or disclose the theories, mental impressions, or litigation plans of the party’s attorney.” The court then stated:

“Illinois has taken a narrow approach to the discovery of attorney work product. The overriding considerations under our discovery rule are ascertainment of the truth and expedited disposition of the lawsuit. (Monier v. Chamberlain, 35 Ill. 2d at 361[, 221 N.E.2d 410].) Thus, under our rule, ordinary work product, which is any relevant material generated in preparation for trial which does not disclose ‘conceptual data’ (Monier, 35 Ill. 2d at 360[, 221 N.E.2d 410]), is freely discoverable (134 Ill. 2d R. 201(b)(2)). Opinion or ‘core’ work product, which consists of materials generated in preparation for litigation which reveal the mental impressions, opinions, or trial strategy of an attorney, is subject to discovery upon a showing of impossibility of securing similar information from other sources. Monier, 35 Ill. 2d at 360[, 221 N.E.2d 410].” (144 Ill. 2d at 196.)

The court in Waste Management determined that the work product rule was not intended to bar discovery of defense counsel’s mental impressions and case assessment, as they related to the underlying litigation, in the “subsequent” declaratory judgment action. Since the attorney’s impressions in the underlying action did not necessarily disclose the attorney’s impressions in the declaratory judgment action, the court ruled that the purpose of the work product doctrine was not served and thus it was not available to protect defendant’s litigation files from the insurer’s discovery. The court further ruled that even if the work product doctrine were applicable, the “at issue” exception to the work product protection as developed by Federal case law would require disclosure of the litigation files in the declaratory judgment action.

In this case, of course, it is not an attorney’s work product that is at issue, but the claimed work product of a consulting expert. Although there are obvious differences in the two types of work product, we believe the need to protect them from unnecessary discovery by an adverse party arises from similar considerations. In both cases, the party employing the attorney or expert justifiably believes that the person he has hired possesses some mental ability, technical expertise and/or superior strategy that could make a difference in that party’s success in the litigation at hand. It is not unfair to impose on the opposing party the same burden of hiring an attorney or expert to counter the other party’s attorney’s or expert’s mental impressions, theory or strategy without revealing such conceptual data (core work product) before trial. On the other hand, where the material gathered or produced by an attorney or expert is of a more concrete nature (ordinary work product or “tangible thing”) and does not expose the attorney’s or expert’s mental processes, it serves the judicial process and is not unfair to require the parties to mutually share such material and analyze it prior to trial.

Ignoring for the moment that Atlantic Mutual is not a party to this litigation, we find that the videotape here at issue is a “tangible thing” as contemplated by Rule 220(c)(5) subject to disclosure without a showing of exceptional circumstances. Atlantic Mutual argues that a videotape discloses an expert’s thought processes and case evaluation by the movement, angle, distance and duration of focussing on various aspects of the expert’s field investigation. However, such subtleties do not convince us that the videotape is thus transmuted into “core work product” or “conceptual data” in need of protection.

Moreover, to the extent that an expert’s mental processes would be exposed in the manner suggested, we believe that the same could be said with respect to a tape-recorded interview. Our research reveals that tape-recorded statements have been consistently included as falling within the ambits of Rule 16(b) of the Federal Rules of Criminal Procedure as discoverable tangible objects without a showing of need or special circumstances. (See, e.g., United States v. Fallen (8th Cir. 1974), 498 F.2d 172; United States v. Bryant (D.C. Cir. 1971), 439 F.2d 642; United States v. Isa (7th Cir. 1969), 413 F.2d 244; Davis v. U.S. (5th Cir. 1969), 413 F.2d 1226; United States v. Iovinelli (N.D. Ill. 1967), 276 F. Supp. 629.) These Federal cases, no less than the court in Waste Management, recognize that justice is best served by full and fair disclosure and that any interest that the party recording a conversation, surreptitiously or otherwise, may have in denying production of a defendant’s taped conversation must fall to the overriding judicial interest in finding the truth. While we recognize the distinction between the Federal criminal cases and the case before us today, we believe that the underlying concern for fairness and finding the truth, as expressed by our supreme court and the Federal cases requiring disclosure of taped statements, is applicable here as well.

In our opinion, the truth-seeking interest in a civil case is sufficiently compelling to require disclosure of Atlantic Mutual’s consulting expert’s videotaped field investigation without a showing of exceptional circumstances. Atlantic Mutual’s legitimate concerns for protecting its consulting expert’s work product are adequately addressed by the trial court’s order to the extent that the order properly permits deletion of the expert’s audible thought processes that would be entitled to protection under Rule 220(c)(5). Our ruling obviates any need to discuss whether plaintiff has shown exceptional circumstances in his request for production.

Based on our finding that the trial court did not err in ordering Atlantic Mutual to produce the videotape, we further find that the court had authority to enforce its order with civil contempt sanetions. We recognize that the civil contempt procedure was the only vehicle by which the issue could be brought to our attention; and we understand that by turning the tape over pursuant to the court’s order, counsel will be purged of contempt.

The judgment of the circuit court of Peoria County is affirmed, and this cause is remanded for further proceedings.

Affirmed; cause remanded.

GORMAN and HAASE, JJ., concur.