text:
    BRENDA J. BESSE, Plaintiff-Appellee, v. DEERE AND COMPANY, Defendant-Appellant.
    Third District
    No. 3—92—0042
    Opinion filed November 17, 1992.

      J. Sue Myatt, of Bozeman, Neighbour, Patton & Noe, of Moline (Robert J. Noe, of counsel), for appellant.

      Jerome Mirza & Associates, Ltd., of Bloomington (David V. Dorris, of counsel), for appellee.
   PRESIDING JUSTICE BARRY

delivered the opinion of the court:

Defendant, Deere & Company (Deere), appeals from judgment entered against it for plaintiff, Brenda Besse, in a products liability action. A jury found liability due to the defective design of Deere’s cornpicker combine Model No. 7720 and awarded plaintiff damages in the amount of $1,555,000, reduced by 75% for her contributory negligence to $388,750. Defendant moved for judgment notwithstanding the verdict, which was denied by the court, and this appeal ensued. Defendant urges that we reverse the lower court’s judgment on grounds that plaintiff failed to prove two essential elements of her cause of action: (1) that the product was unreasonably dangerous; and (2) proximate causation. We affirm.

Plaintiff was age 23 on October 22, 1981, when she was operating the Deere combine with a cornhead attachment on the family farm. Plaintiff had grown up around farm machinery and had driven the combine around the farm on numerous occasions and picked beans with it, but 1981 was the first year that she had actually picked corn with the machinery. On the day in question, the cornhead attachment became clogged with wet corn stalks. Plaintiff descended from the cab without turning the motor off, as she had observed her father do on prior occasions, so that she could manually remove the debris. The gathering chains that pull corn into the cornhead to be stripped were still running, and plaintiff knew that anything that came into contact with them would be pulled into the combine. Although plaintiff tried to position herself so as to avoid the chains, her right pants leg touched the chains as she reached to dislodge the stalks, her leg was pulled into the cornhead, and the leg was amputated above the knee. Plaintiff further testified that, although she could not explain how the contact was made on this occasion, she previously had seen the combine move forward after being placed in neutral.

Subsequent to the accident, plaintiff’s brother, Mark, devised a simple seat switch for the cab of the combine which caused the corn-head to stop when the operator left the seat and reactivated the corn-head when the operator resumed the seat. According to Mark, it took him a couple of hours to rig the switch, and it cost under $20.

Testimony admitted at trial for defendant established that the Deere Model No. 7720 combine was designed and manufactured in 1979 before the state of the art in farm implement manufacture incorporated seat switches. According to Deere’s witness, the type of switch installed by plaintiff’s brother had been studied, but rejected as unsafe for several reasons at the time the 7720 combine was designed. It was not until 1989, after Deere had received reports of accidents in which operators came into contact with moving cornheads, that a seat switch was added by the manufacturer.

By contrast, plaintiff’s expert witness, professional engineer John Sevart, testified that the technology of seat switch controls was highly developed at the time the Deere Model No. 7720 was engineered. He further testified that such combines were designed with hydrostatic drives that can cause the combine to creep forward in neutral. Sevart opined that the machinery in question was unreasonably dangerous without a switch that would shut off the cornhead when the operator left the seat of the combine.

At the close of all evidence, defendant moved for a directed verdict on the ground that the inherent dangers of the machinery in question were open and obvious, and that plaintiff was in fact aware of them. Thus, defendant argued, since the machinery worked exactly as it was designed to work, under the “consumer expectation test” there could be no liability on the part of the manufacturer. The trial court rejected defendant’s position and denied the motion. In closing argument defense counsel stressed plaintiff’s awareness of the dangers the machinery posed and urged the jury to find that she assumed the risk of her own injury. As aforesaid, the jury found liability on the part of the manufacturer, but reduced its award of damages by 75% for plaintiff’s own contributory negligence.

In this appeal, defendant initially posits that a product is not “unreasonably dangerous” for purposes of a products liability action if the danger is one that would be contemplated by the ordinary consumer who has ordinary knowledge common to the community as to its characteristics. (See Restatement (Second) of Torts §402A, Comment i (1965).) Applying the facts herein, defendant continues, plaintiff has not established the essential element of her cause of action.

Plaintiff argues that this narrow test has not been adopted in Illinois. Rather, a broader definition of “unreasonably dangerous” is available to the products liability plaintiff which embraces both the “consumer expectation” test and a “risk/benefit analysis” test. (Palmer v. Avco Distributing Corp. (1980), 82 Ill. 2d 211, 220-21, 412 N.E.2d 959, 964; Lamkin v. Towner (1990), 138 Ill. 2d 510, 528, 563 N.E.2d 449, 457.) Under the latter test, a product is unreasonably dangerous when the evidence establishes that the product “could have been designed to prevent a foreseeable harm without hindering its function or increasing its price.” (Palmer, 82 Ill. 2d at 220.) Otherwise stated, plaintiff may establish liability if she proves “that the product’s design proximately caused his[/her] injury and defendant fails to prove that on balance the benefits of the challenged design outweigh the risk of danger inherent in such designs.” (Lamkin, 138 Ill. 2d at 529.) The two tests are not mutually exclusive and generally should be applied together except where the nature of the danger is particularly obvious and the mechanism itself is particularly simple. (See Scoby v. Vulcan-Hart Corp. (1991), 211 Ill. App. 3d 106, 569 N.E.2d 1147 (applying the consumer expectation test alone to cause of action arising from burns plaintiff suffered when he fell into an open deep-fat fryer).) We agree that plaintiff correctly states the law of Illinois.

The evidence in this case presented a factual question of whether the product was unreasonably dangerous when analyzed under the integrated consumer expectation test and risk/benefit analysis test. That question was decided by the jury in the affirmative and is not contrary to the manifest weight of the evidence.

There is no dispute that the danger inherent in the moving parts of the cornhead was open and obvious to the ordinary consumer/operator. However, this fact does not end the inquiry because plaintiff presented evidence that her injury could have been prevented with a design modification that would not have hindered the combine’s function. Also, as aforesaid, plaintiff introduced expert and lay testimony relative to the combine’s propensity to move forward in neutral and the utility of a simple, inexpensive seat switch which would turn the machinery off to prevent foreseeable injury to the operator. Plaintiff’s brother testified that his idea to install a seat switch on the combine after plaintiff’s accident was inspired by his familiarity with a riding mower that the family had in 1980. The mower was also manufactured by Deere and was a couple of years old at the time of plaintiff’s accident. Thus, plaintiff established that the technology needed to prevent the type of injury she suffered was not unavailable to defendant in 1979.

Defendant’s witnesses testified that seat switches had been studied in 1979, but not integrated into the design of its Model 7720 combine because of various safety-related concerns which were explained to the jury. Defendant’s witnesses further testified that other farm implement manufacturers had not installed seat switches in their combines in 1979. In fact, it was not until 10 years later, after receiving reports of this and other accidents involving cornhead attachments, that defendant added a seat switch to its combines.

Obviously, the combine-with-attached-cornhead mechanism involved in this case is not so simple in nature as to preclude application of the risk/benefit analysis test. Under that test the jury in this case could find based on the evidence that the benefits of not installing a seat switch in Model No. 7720 in 1979 did not outweigh the risk of danger inherent in the machinery. Accordingly, we find no error in the trial court’s denial of defendant’s motions for a directed verdict and for judgment notwithstanding the verdict based solely on application of the consumer expectation test.

Similarly, we reject defendant’s argument that plaintiff failed to sustain her burden of proof of proximate causation. Defendant contends that it was not a defective product, but a defective plaintiff that proximately caused the injury complained of in this case. This premise is an outgrowth of defendant’s primary position that plaintiff was knowledgeable about the dangers posed by the moving parts of the cornhead when she approached it to remove the clogged corn stalks. Defendant contends that the jury’s verdict is contrary to the manifest weight of the evidence because the degree of her assumption of the risk of injury was 100%, not 75% as found by the jury.

In this State, liability may be found whether the defective design of defendant’s product is the sole or a contributing cause of plaintiff’s injury. (Coney v. J.L.G. Industries, Inc. (1983), 97 Ill. 2d 104, 454 N.E.2d 197.) Plaintiff’s comparative fault or assumption of the risk does not bar recovery, but reduces an award of damages. In this case, in addition to evidence of the inherent danger of the cornhead mechanism, there was also other evidence that the combine was designed such that it could creep forward in neutral, and that it was foreseeable that this could bring the cornhead in contact with an operator who had initially positioned himself at a safe distance from the gathering chains to remove debris. This danger was neither open nor obvious, even though plaintiff in this case admitted that she had observed the phenomenon on one or more occasions prior to her accident.

In our opinion, the evidence presented a factual question of proximate causation for the jury. The jury’s verdict finding plaintiff 75% contributorily negligent supports defendant’s theory that plaintiff’s own carelessness was the primary proximate cause of her injury. The evidence, however, supports as well the jury’s verdict that the machinery’s defective design rendered plaintiff’s injury foreseeable and was a proximate cause. In sum, we hold that the trial court did not err in denying defendant’s motions for a directed verdict and for judgment notwithstanding the verdict based on insufficient evidence of proximate causation.

For the foregoing reasons, we affirm the judgment of the circuit court of Rock Island County.

Affirmed.

McCUSKEY and SLATER, JJ., concur.


source: Caselaw Access Project

author: JUSTICE HAASE

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES SINGLETARY, Defendant-Appellant.
    Third District
    No. 3—92—0074
    Opinion filed November 18, 1992.

      John F. Klunk, of Lockport, for appellant.
    Edward Burmila, Jr., State’s Attorney, of Joliet, and Howard R. Wertz, of Lynwood (John X. Breslin, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE HAASE

delivered the opinion of the court:

A jury convicted the defendant, James Singletary, of two counts of unlawful delivery of a controlled substance (Ill. Rev. Stat. 1987, ch. 56½, pars. 1401(a)(2), (b)(2)). The trial court subsequently sentenced him to concurrent terms of six years on one count and four years on the other count. The defendant appeals.

The record shows that Alina Alvarez testified at the defendant’s trial that she knew the defendant through his girlfriend, Marsha Moore, who worked with Alvarez. Alvarez both bought cocaine from the defendant and used cocaine with him in December of 1988. On January 19, 1989, Alvarez was arrested for writing a bad check. In order to avoid being put in jail and to receive a positive recommendation from the Bolingbrook police, Alvarez agreed to become an informant. As an informant, she made arrangements for the defendant to meet Officer Bob Glynn, a special agent in the Drug Enforcement Administration, for the purchase of cocaine. Officer Glynn then came to the defendant’s residence and purchased one gram of cocaine from him for $100. Prior to leaving, Glynn asked to buy more cocaine at a later time. The defendant agreed and stated that Alvarez could give Officer Glynn his telephone number.

Officer Glynn also testified at the defendant’s trial. On January 31, 1991, he purchased one gram of cocaine from the defendant for $100. On February 3, Glynn went to the defendant’s residence and purchased one-sixteenth of an ounce for $130.

On February 10, Officer Glynn drove the defendant to meet a supplier of cocaine behind an Osco’s drug store. The defendant told Officer Glynn he was not sure who would deliver the cocaine, but the “runner” would be one of five people the defendant knew. After receiving the cocaine, Officer Glynn and the defendant returned to the defendant’s residence. The defendant divided the cocaine and sold one-quarter of an ounce to Glynn for $400. The defendant told Glynn the remaining cocaine was for someone else.

On February 16, Officer Glynn made arrangements to purchase one ounce of cocaine from the defendant. Glynn waited at the defendant’s residence while the defendant met his supplier to get the cocaine. When the defendant returned, Glynn purchased an ounce for $1,000, Once again, the defendant said the remaining cocaine was for someone else.

Officer Glynn also tried to set up another purchase with the defendant by calling him on March 6, 10, and 14. Each time, the defendant stated that his supplier was unavailable. Finally, on March 21, after finding the defendant’s telephone was disconnected, Officer Glynn, along with other officers, went to the defendant’s residence and arrested him.

The defendant also testified. He claimed that Alvarez provided the opportunities and encouraged his participation in selling cocaine. Specifically, she provided him with a straw and a mirror to use cocaine, a scale to weigh it, and a grinder to change it from rock into powdered form. Further, she gave him a telephone number to a cocaine supplier’s beeper and a verbal code that enabled him to make purchases. The defendant also stated that he and Alvarez used the cocaine that was left over after the sales to Officer Glynn.

The defendant further testified that he was in financial trouble. He had lost his job as superintendent at the Stateville Correctional Center. He had trouble paying bills, and because Alvarez helped him with the bills, he felt obligated to deal cocaine. He also testified that he had a cocaine and drinking problem during the time he was selling cocaine to Officer Glynn. The defendant claimed he did not have a cocaine problem prior to meeting Alvarez, although he did admit to previous use.

On appeal, the defendant argues that he was not properly convicted. He contends that he was entrapped into delivering cocaine as a matter of law.

Entrapment occurs when State officers implant in the mind of an innocent person the disposition to commit an offense and induce the commission of the offense in order to prosecute. (Ill. Rev. Stat. 1991, ch. 38, par. 7—12.) Thus, in order for the defense of entrapment to be available to a defendant, the idea to commit the crime must not originate with the defendant. Instead, government agents must actively encourage the defendant to act, the purpose of the encouragement must be to obtain evidence to prosecute the defendant, and the defendant must not be independently predisposed to commit the crime prior to first being approached by government agents. People v. Kulwin (1992), 229 Ill. App. 3d 36, 593 N.E.2d 717.

A number of factors are to be considered when determining a defendant’s predisposition to commit a crime: the defendant’s initial reluctance or readiness to commit the offense, his familiarity with drugs, his willingness to make a profit from the illegal conduct, his access to a ready source to supply the drugs, and his own prior or current use of illegal drugs. People v. Lambrecht (1992), 231 Ill. App. 3d 426, 595 N.E.2d 1358; People v. Poulos (1990), 196 Ill. App. 3d 653, 554 N.E.2d 448.

The question of whether a defendant has been unlawfully entrapped is generally a factual question to be resolved by the trier of fact. (People v. Tipton (1980), 78 Ill. 2d 477, 401 N.E.2d 528.) A reviewing court may not substitute its judgment for that of a jury with regard to the weight of the evidence or the credibility of the witnesses and should not reverse a conviction unless the evidence is so improbable, unreasonable, or unsatisfactory as to justify a reasonable doubt of the defendant’s guilt. (People v. Lambrecht (1992), 231 Ill. App. 3d 426, 595 N.E.2d 1358, citing People v. Campbell (1992), 146 Ill. 2d 363, 586 N.E.2d 1261.) Thus, the relevant inquiry is whether, upon reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the elements essential to the criminal conviction beyond a reasonable doubt. People v. Lambrecht (1992), 231 Ill. App. 3d 426, 595 N.E.2d 1358, citing People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267.

When the evidence is viewed under this standard, reversal is not warranted. The record shows that the defendant was knowledgeable in the sale of narcotics. The defendant set up meeting places to purchase cocaine, weighed and divided it, and had paraphernalia to use it. He admitted to being a user and was knowledgeable in drug slang. He also had cocaine left over after the sale which he said was for someone else. There was also evidence that he used and sold cocaine prior to being introduced to Officer Glynn. Finally, the defendant admitted to making some profit on the sales and that he was in need of money.

The defendant, however, contends that he was not predisposed to the sale of cocaine. He raises three points in support of his claim.

First, the defendant argues that he had no prior criminal record. Yet, lack of a prior criminal record is not controlling. (People v. Dennis (1981), 94 Ill. App. 3d 448, 418 N.E.2d 479.) Further, the lack of such a criminal record cannot overcome other evidence of a defendant’s willingness to make unlawful sales when the opportunity presented itself. People v. Darnell (1990), 214 Ill. App. 3d 345, 573 N.E.2d 1252.

Second, the defendant argues that he was not previously known to the police. However, the fact that the government agents did not have either prior contact with or knowledge of the defendant is not determinative. People v. Dennis (1981), 94 Ill. App. 3d 448, 418 N.E.2d 479, citing People v. Wells (1962), 25 Ill. 2d 146, 182 N.E.2d 689.

Third, the defendant argues that the informant, rather than the defendant, “set up the first transaction.” Yet, entrapment does not exist merely because a government agent initiates a relationship with a defendant that leads to a transaction in a controlled substance. (People v. Dennis (1981), 94 Ill. App. 3d 448, 418 N.E.2d 479.) The fact that the government agent made the initial contact is not controlling; rather, it is but one factor to be considered by the jury. Furthermore, a propensity to commit the offense can be shown by a ready response to the alleged inducement. (People v. Dennis (1981), 94 Ill. App. 3d 448, 418 N.E.2d 479.) Here, after the initial contact, the defendant readily supplied cocaine to the government agent, showing a clear propensity to act as a cocaine dealer. We also note that the defendant was not charged with the initial two sales of cocaine, but only with the latter two.

Thus, in viewing the evidence in the light most favorable to the prosecution, we affirm the judgment of the circuit court of Will County.

Affirmed.

McCUSKEY and STOUDER, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES H. GUNN, Defendant-Appellant.
    Third District
    No. 3—91—0559
    Opinion filed November 24, 1992.
    Judith L. Libby, of State Appellate Defender’s Office, of Springfield, for appellant.
    Marshall E. Douglas, State’s Attorney, of Rock Island (John X. Breslin and Gary F. Gnidovec, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE HAASE

delivered the opinion of the court:

Following a jury trial, the defendant, James H. Gunn, was convicted of two counts of perjury (Ill. Rev. Stat. 1991, ch. 38, par. 32—2). He was subsequently sentenced to a 42-month prison term. The sole question on review is whether the trial court erred in not declaring a mistrial when one of the polled jurors, who may have been in tears, answered in the negative when asked whether the verdict was his.

The record shows that a guilty verdict signed by all the jurors was returned by the jury. After the verdict was read, the defendant requested that the jury be polled. The following exchange then took place:

“THE COURT: All right, the Clerk is going to poll you. What she’s going to say to you individually she’s going to call your name out and she’s going to say something like was this and is this your verdict. You must answer either yes or not [sic].
The Clerk: Judith Line were these and are these now your verdicts?
Juror: Yes.
The Clerk: Jason Bergraph was [sic] these and are these now your verdicts?
Juror: No. I don’t know what—
THE COURT: All right, I’m not going to do anything at this time. What I’m going to do is I’m going to send you back and let you discuss again for a little while as to what you want to do and then you let me know where you are after you have had some time. All right, we’ll send everything back.
* * *
Defense Counsel: I don’t know if the Court noticed was Mr. Bergraph when, I mean he was- in tears here when he was going back to the Jury room and I don’t know if a mistrial might not be in order.
The Prosecutor: It could be that he misunderstood the question asked to him.
THE COURT: Yes. I’m not sure. That’s why I didn’t want to pry into it. I didn’t want him, to ask if he misunderstood my question or if he understood it and had second thoughts or I wanted to give him time to think about it and decide with the other Jurors as to exactly what he wanted to do. If he comes back out twenty minutes or whatever it might take and says no that’s not my verdict then we’ll have to go from there.”

After further deliberations, the jury returned to the court and again returned guilty verdicts on both counts of perjury. This time, no dissent was expressed by any of the jurors during the polling of the jury-

The purpose of polling is to afford the juror the opportunity, free from the influences of the jury room, to express whether or not he assents to the verdict. (People v. Kellogg (1979), 77 Ill. 2d 524, 397 N.E.2d 835.) When polling the jury, the trial judge must be careful not to hinder a juror’s expression of dissent. (People v. Williams (1983), 97 Ill. 2d 252, 454 N.E.2d 220.) However, the trial judge must also be careful not to make the polling process another arena for deliberations. If a juror indicates some hesitancy or ambivalence in his answer, then the trial court must ascertain the juror’s present intent by affording the juror the opportunity to make an unambiguous reply as to his present state of mind. Once the trial judge determines that a juror dissents from the verdict, then the proper remedy is for the trial judge to either direct the jury to retire for further deliberations or to discharge it. (People v. Kellogg (1979), 77 Ill. 2d 524, 397 N.E.2d 835; People v. Lark (1984), 127 Ill. App. 3d 927, 469 N.E.2d 728.) A trial judge’s determination of the voluntariness of a juror’s assent to the verdict will not be set aside unless it is clearly unreasonable. People v. Cabrera (1987), 116 Ill. 2d 474, 508 N.E.2d 708.

We agree with the State that the trial court did not abuse its discretion in this matter. Bergraph apparently dissented from the verdicts. The trial court made clear in its response to Bergraph that, following further deliberations with the other jurors, Bergraph was free to let the court know where he stood on the verdict. Further questioning of Bergraph in open court might have tainted the rest of the jurors. After further deliberations, the second polling indicated the jurors’ unequivocal assent to their verdicts. Under these circumstances, we hold that the remedy chosen by the trial court was proper.

Accordingly, the judgment of the circuit court of Rock Island County is affirmed.

Affirmed.

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


author: JUSTICE GORMAN JUSTICE McCUSKEY,

text:
      In re MARRIAGE OF VICKI L. PFEIFFER, Petitioner-Appellee, and WILLIAM D. PFEIFFER, Respondent-Appellant.
    Third District
    No. 3—91—0633
    Opinion filed December 2, 1992.
    Rehearing denied December 31, 1992.

      McCUSKEY, J., dissenting.
    Lisa Oakley, of Schmiedeskamp, Robertson, Neu & Mitchell, of Quincy (Mark A. Drummond, of counsel), for appellant.
    Patricia M. Parker, of Reynolds, Murphy & Associates, P.C., of Peoria (G. Edward Murphy, of counsel), for appellee.
   JUSTICE GORMAN

delivered the opinion of the court:

This case involves a petition to remove a minor child from Illinois. The trial court granted that petition and the father appeals. We affirm.

Vicki and Bill Pfeiffer were married in 1985 and lived in Ma-comb. In 1986, the parties’ only child, Adam, was born. The marriage was subsequently dissolved on May 3, 1989. Under the dissolution judgment, the parties had joint custody of Adam, with Vicki having physical custody. Bill was granted liberal visitation rights.

Shortly after the dissolution, Vicki moved to Peoria from Ma-comb to take a job with the Peoria Association for Retarded Citizens (PARC). She worked as a program instructor earning $12,000 per year. After the move, the parties agreed to a modification of Bill’s custodial time so that Adam could attend the same day-care center throughout the week. Bill never missed his custodial time.

During this time, Vicki began seeing Eric Henrikson. He then moved to the Washington, D.C., area to take a job with the National Cancer Institute. Prior to his move, he proposed to Vicki. She eventually accepted and the two were married in February

1990. After the marriage, Vicki remained in Peoria until she obtained the court’s permission to take Adam out of Illinois on a temporary basis, pending a final determination. In Washington, Vicki obtained a job working with the developmentally disabled at a salary of $21,175.

A hearing was held on Vicki’s petition for removal in February 1991. Both parties testified as well as numerous relatives. Additionally, Dr. Frank Froman, a psychologist, testified as an expert witness. He had been appointed as the child’s witness at Bill’s request. The trial judge also conducted an in camera interview of Adam. After hearing the evidence and arguments, the trial court granted Vicki’s petition. Bill now appeals from that order.

Leave to remove a child from the State of Illinois is governed by section 609 of the Illinois Marriage and Dissolution of Marriage Act, which states in relevant part:

“(a) The court may grant leave, before or after judgment, to any party having custody of any minor child or children to remove such child or children from Illinois whenever such approval is in the best interests of such child or children. The burden of proving that such removal is in the best interests of the child or children is on the party seeking the removal.” Ill. Rev. Stat. 1991, ch. 40, par. 609(a).

On review, a strong and compelling presumption exists in favor of the trial court’s determination; this court will not disturb the trial court’s judgment unless that judgment results in manifest injustice or is against the manifest weight of the evidence. (In re Marriage of Eckert (1988), 119 Ill. 2d 316, 518 N.E.2d 1041.) The best interests of the child cannot be determined by a bright-line test, but must be examined on a case-by-case basis. (Eckert, 119 Ill. 2d at 326, 518 N.E.2d at 1045.) In Eckert, the supreme court listed several factors for the trial court to look to in ruling on a petition to remove:

“The court should consider the proposed move in terms of likelihood for enhancing the general quality of life for both the custodial parent and the children. [Citations.] The court should also consider the motives of the custodial parent in seeking the move to determine whether the removal is merely a ruse intended to defeat or frustrate visitation. [Citations.] Similarly, the court should consider the motives of the noncustodial parent in resisting the removal. [Citation.] It is also in the best interests of a child to have a healthy and close relationship with both parents, as well as other family members. Therefore, the visitation rights of the noncustodial parent should be carefully considered. [Citations.] Another factor is whether, in a given case, a realistic and reasonable visitation schedule can be reached if the move is allowed.” 119 Ill. 2d at 326-27, 518 N.E.2d at 1045-46.

In its order granting the petition, the trial court specifically mentioned the Eckert factors and weighed each one. It is not the function of this court to reweigh the evidence or assess the credibility of testimony and set aside the trial court’s determination merely because a different conclusion could have been drawn from the evidence. (Evans v. Sisters of the Third Order of St. Francis (1987), 154 Ill. App. 3d 137, 506 N.E.2d 965.) Our review reveals that the trial court’s judgment is not against the manifest weight of the evidence.

The first factor to consider is the likelihood for enhancing the general quality of life for Vicki and Adam. The court noted that Vicki had a higher paying job in Maryland than she did in Peoria, as well as a chance for advancement. Moreover Vicki and Eric’s combined income is higher than Bill’s and their earning potential is greater. While declining to make a comparative finding, the court stated that it would seem that adequate schools, medical facilities and housing would be available after the move. Additionally, the court properly considered the indirect benefits to Adam which would result from Vicki establishing a new and successful marriage relationship. (In re Marriage of Carlson (1991), 216 Ill. App. 3d 1077, 576 N.E.2d 578; In re Marriage of Taylor (1990), 202 Ill. App. 3d 740, 559 N.E.2d 1150.) This would enhance her quality of life significantly and in that way would indirectly enhance the child’s quality of life. We do note, however, that this factor, standing alone, is insufficient to merit the granting of a petition for removal. In re Marriage of Berk (1991), 215 Ill. App. 3d 459, 574 N.E.2d 1364.

The second factor is Vicki’s motive in seeking the move. This was the subject of much testimony at the hearing. The court observed a great amount of animosity between Bill and Eric. When Vicki met Eric, he was finishing his master’s degree in microbiology. Upon completion of that, he sought to find employment, but did not try to find a job in Illinois or the surrounding States. He testified that there are only approximately three cities in the country where he could pursue his particular area of expertise in molecular biology. At the time of the hearing, Eric was employed by the Food and Drug Administration as a research scientist for the Department of Health and Human Services. The trial court specifically found that it was reasonable that, in specific areas of science, one might have to go where the work is being conducted. Accordingly, the court specifically found that the move was not an attempt to thwart visitation. Upon review, we are unable to say that determination is against the manifest weight of the evidence.

The next factor is Bill’s motives in resisting the move. Bill has always exercised his custody and visitation rights. Vicki testified that if the petition were denied, she and Eric would move back to Illinois. The trial court found that Bill had valid motives in resisting the move. We agree.

The final two factors to examine are Adam’s relationship with both parents and other family members and whether realistic and reasonable visitation can be maintained. Most of Bill’s relatives live in Quincy, while Vicki’s relatives are in the Peoria area. Obviously, this move could possibly lessen the child’s contacts with his extended family. That factor alone, however, is insufficient to deny the petition. This court addressed similar facts in In re Marriage of Taylor (1990), 202 Ill. App. 3d 740, 559 N.E.2d 1150. There, we recognized that the mother was willing to allow liberal visitation, including extended summer visitation with the father.

The same is true here. The trial court ordered visitation of three weeks and then an additional two weeks in the summer, as well as visitation at Christmas, Thanksgiving, and Easter or spring break. Additionally, the court cautioned Vicki and Eric not to impede phone conversations between Adam and Bill or between Adam and his relatives in Illinois. The trial court was of the opinion that a meaningful relationship could be maintained through such visitation.

Bill also challenges that schedule, arguing that, if the petition is granted, he should have custody the entire summer. We, however, feel that the schedule is reasonable under the circumstances and is not against the manifest weight of the evidence.

Bill points to the testimony of Dr. Froman as evidence that the move is not in Adam’s best interests. The trial court, however, found that Dr. Froman’s testimony was flawed. He had been appointed at Bill’s request. The only guidance Dr. Froman had was a copy of Eckert which Bill’s attorney sent to him. Dr. Froman interviewed Bill and Adam but never spoke with Vicki or Eric.

Dr. Froman testified that he did his report on the basis of an initial custody determination, as opposed to a petition to remove the child from the jurisdiction, which carries a different standard. Dr. Froman admitted that his opinion would have been aided by a clearer definition of his mission. The court then conducted an in camera interview with Adam and did not find the animosity between Adam and Eric that Dr. Froman mentioned in his report. For these reasons, the court found that Dr. Froman’s opinion was flawed, through no fault of his own. Accordingly, the trial court chose to give no weight to Dr. Froman’s testimony.

After the hearing, Bill sought to introduce a supplemental report authored by Dr. Froman. The trial court rejected that attempt. Bill now argues that, at a minimum, this case should be remanded for a new hearing so that he can supplement Dr. Froman’s report.

It is completely within the trial court’s province as trier of fact to determine the weight to be given each witness’ testimony, and this assessment will not be disturbed absent an abuse of discretion. (In re Marriage of Eltrevoog (1982), 92 Ill. 2d 66, 440 N.E.2d 840; Tsai v. Kaniok (1989), 185 Ill. App. 3d 602, 541 N.E.2d 819.) The trial court heard evidence from 10 witnesses other than Dr. Froman. In addition, he conducted an in camera interview with Adam. The record reveals the he had ample information on which to base his judgment, and there is no need to reopen the hearing for any additional evidence.

As the supreme court noted in Eckert, cases such as this are very fact intensive and determinations must be made on a case-by-case basis. (Eckert, 119 Ill. 2d at 326, 518 N.E.2d at 1045.) The trial court is in the best position to make these determinations as it has the opportunity to hear the evidence while viewing the witnesses and their demeanor. Such a determination is presumed correct and a reviewing court cannot overturn the decision unless it is against the manifest weight of the evidence. Eckert, 119 Ill. 2d at 330, 518 N.E.2d at 1047.

The trial court found that Vicki had met her burden of showing that the move is in the best interests of the child. Upon review, we are unable to say that that determination is against the manifest weight of the evidence. We therefore affirm.

Affirmed.

STOUDER, J., concurs.

JUSTICE McCUSKEY,

dissenting:

I respectfully dissent. Based upon my review of the record, I find the trial court’s decision to be against the manifest weight of the evidence. Furthermore, I believe the majority has misapplied our supreme court’s holding in In re Marriage of Eckert (1988), 119 Ill. 2d 316, 518 N.E.2d 1041.

The trial court heard testimony that the father has never missed a visitation with Adam and shows a sincere desire to maintain and further develop their relationship. “When a parent has assiduously exercised his or her visitation rights, ‘a court should be loath to interfere with it by permitting removal of the children for frivolous or unpersuasive or inadequate reasons.’ ” Eckert, 119 Ill. 2d at 327, 518 N.E.2d at 1046, quoting D’Onofrio v. D’Onofrio (1976), 144 N.J. Super. 200, 206, 365 A.2d 27, 30.

It is also well established that it is in the best interests of children to have a healthy and close relationship with both parents, as well as with other family members, and thus the visitation rights of the noncustodial parent should be carefully considered. (In re Marriage of Stone (1990), 201 Ill. App. 3d 238, 559 N.E.2d 92.) In the instant case, the record shows the joint parenting agreement contains a provision stating that it is in Adam’s best interest to have close, frequent and continuing contact with both parents. The joint parenting agreement also granted the father custody of Adam for extensive periods of time. In addition, the agreement’s provisions gave both parties equal rights regarding the major decisions in Adam’s life on such issues as education, health care, and religious training.

All the evidence introduced indicates that the mother and father are both loving parents and Adam has a strong attachment to both of them. Residing in Illinois, Adam will be able to continue these essential contacts with both parents. Maintaining these relationships is paramount to the career objectives of the mother’s new husband. Also, almost all of Adam’s extended family members live in the area of Peoria and Quincy. Maintenance of these family contacts is very important for the best interests of Adam.

The record shows that Eric Henrikson, the mother’s new husband, never applied for or sought a job in Illinois or any of the surrounding States. Henrikson also admitted there are positions available in Illinois for people with his job qualifications. The record also indicates Henrikson has discretion as to his place of employment. However, he clearly stated that he did not even bother looking for a position in Illinois.

Dr. Frank Froman, a psychologist, testified that Henrikson was the classic mean and meddling stepfather. Dr. Froman further related that Adam needs to maintain the continuity of the relationships he has, not only with his father but also with his extended family.

Applying the Eckert standards to the instant case, we first consider the likelihood that the proposed move will enhance the general quality of life for the child and the parent having physical custody. As far as the mother is concerned, the record does not show that her general quality of life will be directly enhanced by removing Adam to Washington, D.C. Nevertheless, the mother in the instant case seemingly overstates the importance of the impact of the move on her own quality of life. The focus at all times must remain on the best interest of Adam. The increase in the custodial parent’s quality of life is only important insofar as it increases the child’s quality of life and furthers the child’s best interests. “If the obvious happiness the spouse would receive from being able to live with a new spouse were sufficient to prove removal [is] in the child’s best interests, court supervision of the proceedings would be unnecessary, and at best, ceremonial.” (In re Marriage of Berk (1991), 215 Ill. App. 3d 459, 466, 574 N.E.2d 1364, 1369.) I find the mother failed to sufficiently demonstrate that the best interests of Adam would be served by moving him from Illinois to Washington, D.C.

Additionally, I believe the majority has improperly applied the factors set forth in Eckert concerning: (1) whether removal is merely a ruse intended to defeat or frustrate visitation; and (2) if a realistic and reasonable visitation schedule can be reached if the move is allowed.

The trial court observed a great amount of animosity between Henrikson and the father. The record clearly shows that Henrikson had no intention of seeking employment in Illinois or the Midwest. I believe Henrikson’s decision to seek employment in Washington, D.C., was calculated to severely limit the father’s visits with Adam and remove the child from his extended family in Illinois.

I believe the majority opinion flies in the face of Eckert by minimizing the importance of the father’s extensive visitation with Adam. Furthermore, the trial court’s order granting the father five weeks’ visitation in the summer is grossly inadequate to compensate for the extensive visitation previously granted by the joint parenting agreement. Considering the distance and the cost of travel to Washington, D.C., if removal was properly granted, the father should have been awarded visitation with Adam for the entire summer. I believe the limited visitation granted by the trial court was an abuse of discretion in light of the father’s previous extensive visitation and the terms of the joint parenting agreement.

The majority opinion has misapprehended Eckert. The majority opinion has overlooked the fact that removal of Adam from Illinois will cause him to lose the direct benefit of his father’s guidance in education and religious training as envisioned by the joint parenting agreement. Eckert emphasized the substantial impairment removal would have on the noncustodial parent’s involvement with the child. Eckert focused on the best interest of the child and not on the professional improvement of the stepfather or the economic benefit to the petitioner.

The majority opinion improperly dwells on the indirect benefits that removal would have on the petitioner instead of focusing on the best interests of the child which should be the court’s paramount concern. For the reasons indicated, I believe the petitioner has failed to meet her burden of proof, and therefore, I dissent.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DONNIE D. McCRACKEN, Defendant-Appellant.
    Third District
    No. 3-91-0481
    Opinion filed December 3, 1992.
    Marcia F. Straub, of Peoria, for appellant.
    Larry VanDerSnick, State’s Attorney, of Cambridge (John X. Breslin and Rita Kennedy Mertel, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE HAASE

delivered the opinion of the court:

The defendant, Donnie D. McCracken, pled guilty to driving under the influence of alcohol (DUI) and driving while his license was revoked (DWLR) (Ill. Rev. Stat. 1989, ch. 95½, pars. 11-501(d)(l), 6-303(d)). The charges were Class 4 felonies. Normally, they would have been Class A misdemeanors (Ill. Rev. Stat. 1989, ch. 95½, pars. 11—501(c), 6—303(a)). The DUI charge was elevated to the level of a Class 4 felony because the defendant had three or more prior violations of section 11—501(a). Similarly, the DWLR charge became a Class 4 felony because the defendant had more than one conviction for the offense of DWLR and the original revocation of his license was for a violation of section 11— 501. After hearing a factual basis for the defendant’s plea, the trial court accepted the plea and sentenced him to an extended term of imprisonment of six years to run consecutively with a previously imposed three-year prison term for a DUI offense that occurred in Rock Island County. The defendant appeals.

The record shows that on September 21, 1991, Green Rock police officer Perry Guyton stopped the defendant’s automobile after it veered off the roadway. A blood-alcohol test revealed that the defendant’s blood-alcohol content was .293. Later that day, the defendant was arrested in Rock Island County for a DUI offense. He was later convicted and sentenced to three years in prison for that charge. The defendant had eight prior DUI convictions and 17 DWLR convictions.

At the time that the trial court accepted the defendant’s guilty plea, it advised the defendant that he could receive an extended-term sentence of up to six years in prison if convicted. The court also advised the defendant that his sentences would run concurrently “unless someone told [him] ahead of time they were going to be otherwise.” The court did not admonish the defendant about the possibility that any sentence imposed could be consecutive to his three-year sentence for the DUI committed in Rock Island County.

Following a sentencing hearing, the trial court sentenced the defendant to an extended term of imprisonment of six years for DUI to run consecutively with his three-year sentence for the Rock Island DUI. Thereafter, the defendant filed a motion to vacate his guilty plea. The trial court denied the motion and the defendant appealed.

On appeal, the defendant argues that his guilty plea should be vacated and the cause remanded to allow him to plead anew. He contends that the trial court failed to properly admonish him about the possibility that he could receive consecutive sentences.

In response, the State initially argues that the defendant waived the argument by failing to raise it in the trial court.

We note that, generally, under Illinois Supreme Court Rule 604(d), any issue not raised by a defendant in his motion to withdraw a plea of guilty is deemed waived on appeal. (134 Ill. 2d R. 604(d).) However, if a lower court fails to give a defendant the admonishments required by Rule 402, it may constitute plain error, an exception to the waiver rule. (134 Ill. R. 2d 615; People v. Davis (1991), 145 Ill. 2d 240, 582 N.E.2d 714.) The supreme court has held the plain error rule applicable where the trial court gave incorrect admonishments, leading the defendant to believe that he was eligible for a sentence other than incarceration. (See People v. Davis (1991), 145 Ill. 2d 240, 582 N.E.2d 714.) Similarly, in the present case, the trial court incorrectly admonished the defendant, leading him to believe that he would not receive a consecutive sentence. Accordingly, we elect to consider the issue under the plain error doctrine.

Turning to the merits, we note that a court’s failure to state the penalty to which the defendant may be subjected because of consecutive sentences renders a defendant’s plea involuntary. (People v. Butler (1989), 186 Ill. App. 3d 510, 541 N.E.2d 171.) Whether reversal is required depends on whether real justice has been denied or whether the defendant has been prejudiced by the inadequate admonishment. People v. Davis (1991), 145 Ill. 2d 240, 582 N.E.2d 714.

In Davis, the trial court advised the defendant at the time of his guilty plea that the possible disposition of his burglary conviction could range from probation to an extended-term sentence. However, the defendant was specifically ineligible for probation because he had a Class 2 felony conviction within 10 years of the current offense. (See Ill. Rev. Stat. 1991, ch. 38, par. 1005—5—3(c)(2)(F).) The supreme court in Davis noted that the trial court had incorrectly admonished the defendant about his possible sentence, leaving him to believe he would be eligible for a sentence other than incarceration. The supreme court concluded that the lower court’s failure to give the proper admonishments required that the defendant’s guilty plea be vacated and the cause remanded to allow him to plead anew.

Similarly, in the present case, the defendant was admonished that unless he was told otherwise, any sentence imposed would be concurrent. The trial court never informed the defendant that there was a possibility that the sentence at issue would be consecutive to the three-year term of imprisonment for his Rock Island County DUI conviction. Section 5—8—4 of the Unified Code of Corrections charges the trial court with the responsibility of determining whether sentences are to run consecutively or concurrently when imposing a term of imprisonment on a defendant who is already subject to sentence in this State. (Ill. Rev. Stat. 1991, ch. 38, par. 1005—8—4.) Furthermore, Illinois Supreme Court Rule 402(a)(2) provides that the court shall not accept a plea of guilty -without first informing the defendant of the minimum and maximum sentences prescribed by law, including, when applicable, the penalty to which the defendant may be subjected because of prior convictions or consecutive sentences. (134 Ill. 2d R. 402(a)(2).) Since the trial court’s admonishments in this case left the defendant believing that his sentences would not be consecutive, we hold that the defendant’s guilty plea must be vacated and the cause remanded to allow him to plead anew.

The defendant next argues that since the instant felony convictions were enhanced from the status of misdemeanors to felonies, he could not receive an extended-term sentence for his crimes.

We note that the Illinois Supreme Court recently discussed that issue in People v. Gonzalez (1992), 151 Ill. 2d 79, holding that an extended-term sentence may be imposed as long as the same prior felony conviction is not used both as an element of the offense and to impose the extended-term sentence. We find, however, that our disposition of the defendant’s first issue makes it unnecessary for us to address his issue involving an extended-term sentence.

For the foregoing reasons, the judgment of the circuit court of Henry County is reversed, the defendant’s guilty plea is vacated and the cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

GORMAN and STOUDER, JJ., concur.


author: PRESIDING JUSTICE BARRY

text:
    HENDERSON COUNTY RETIREMENT CENTER, INC., Plaintiff-Appellee, v. THE DEPARTMENT OF REVENUE, Defendant-Appellant (Henderson Care Center, Inc., Defendant).
    Third District
    No. 3-92-0197
    Opinion filed November 17, 1992.

      Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and Jan Hughes, Assistant Attorney General, of Chicago, of counsel), for appellant.
    Lyman R. Fort, of Fort & Neff, of Stronghurst, for appellee.
   PRESIDING JUSTICE BARRY

delivered the opinion of the court;

This suit concerns 1990 real estate taxes payable to the Illinois Department of Revenue on property titled in the name of defendant Henderson Care Center, Inc. (Care Center), a Missouri for-profit corporation, and used as a residential retirement facility. After an appeal before the Illinois Department of Revenue (the Department), the Department determined that the facility was used for charitable purposes, was “owned” for real estate purposes by plaintiff Henderson County Retirement Center (Retirement Center), an Illinois not-for-profit corporation, since October 2, 1990, and was, therefore, exempt from real estate tax for 25% of 1990. Plaintiff appealed the Department’s decision to the circuit court of Henderson County. On February 4, 1992, the court reversed the Department’s determination, ruling that Retirement Center had sufficient incidents of ownership prior to October 1990 to qualify for exempt status for the entire calendar year. The Department appeals. We reverse.

The facts in this case are not in dispute. The record on appeal establishes that plaintiff Retirement Center was organized in 1985 for the purpose of constructing and operating a retirement home facility in Henderson County, Illinois. In August 1986, plaintiff acquired a parcel of land in furtherance of this purpose; however, it was unable to obtain financing for the project. Defendant Care Center was organized to engage in the business of owning, operating and developing nursing homes, medical laboratories and health care clinics. In May and June 1988, the parties entered into a sale and 15-year lease-back agreement whereby Care Center would complete the construction of the facility and Retirement Center would lease the property upon obtaining its operating license. The lease granted Retirement Center the option of renewing the lease for two five-year terms and the right of first refusal to purchase the premises in the event Care Center should choose to sell to a third party. It further recited that property taxes were the responsibility of the lessee. The project was ultimately completed, and the facility began accepting intermediate nursing care residents in June 1989.

In August 1990, Retirement Center applied for a real estate tax exemption from the Illinois Department of Revenue. The County Board of Review recommended approval of the application for the full 1990 calendar year stating, “[I]t is the opinion of this Board of Review the applicant qualifies for such exemption including the terms of PA 89—311 when the real property is owned by a holding company.” The application was thereafter reviewed by defendant Illinois Department of Revenue and denied. The denial was based on the Department’s findings that: (1) the primary use of the property is not charitable; (2) the property is not in exempt ownership; and (3) the property is not in exempt use.

Retirement Center pursued a timely appeal of this decision to a hearing officer of the Department in November 1990. With its appeal plaintiff submitted a brief and appended an “addendum” to its lease with Care Center dated October 2, 1990, which amended the “right of first refusal” clause of the lease and granted Retirement Center an unconditioned option to purchase the property on either the fifteenth or twentieth anniversary of the lease in an amount equal to 125 times the average monthly rental for the six-month period prior to the anniversary date.

On April 12, 1991, a hearing officer of the Department issued his recommendation that the property be exempted from real estate tax for 25% of 1990 based on its finding that Retirement Center is a charitable organization and that the October 2, 1990, amendment to the lease gave Retirement Center “sufficient incidents of ownership to be considered the owner of the parcel *** for real estate tax purposes.” The officer’s recommendation was approved by the Department on April 15, 1991. Plaintiff appealed this decision to the circuit court, complaining that the Department had no authority to divide the year for tax purposes. The circuit court issued its decision on February 4,1992, finding

“that the right of first refusal contained in the lease *** provides a sufficient interest to Henderson County Retirement Center to qualify for the exemption. The October, 1990 amendment merely supplements the original lease provision. Those aspects of the arrangement between these parties which result in the finding of the Illinois Department of Revenue that Henderson County Retirement Center is a charitable organization were in existence from and after the date of the original lease, and through the entire 1990 calendar year.”

Thus, the court concluded, “[T]he decision to deny exempt status for the entire year of 1990 is against the manifest weight of the evidence.” Accordingly, the court vacated the Department’s ruling, and the Department appeals from that judgment.

Initially, we find no merit to Retirement Center’s bald argument that the Department is without authority to prorate the exemption from the date of a charitable organization’s acquisition of “ownership.” The Revenue Act clearly provides for such proration:

“The purchaser of real property on January 1 shall be considered as the owner on that day. Provided, however, that whenever afee simple title or lesser interest in real property is purchased, granted, taken or otherwise transferred for a use exempt from taxation under this Act, such property shall be exempt from taxes from the date of the right of possession, payment or deposit of the award therefor. Whenever a fee simple title or lesser interest in real estate is purchased, granted, taken or otherwise transferred from a use exempt from taxation under this Act to a use not so exempt, such property shall be subject to taxation from the date of purchase or conveyance. *** In such cases the county collector is authorized to issue a tax bill to the person holding title to the property in that part of the year during which it was not exempt from taxation for such part of the year and to accept payment of such bill as full and final settlement of tax liability for the year involved.” (Emphasis added.) Ill. Rev. Stat. 1989, ch. 120, par. 508.

Next, we note that the issue of tax exemption is one of law, not fact. (City of Chicago v. Illinois Department of Revenue (1992), 147 Ill. 2d 484, 491-92, 590 N.E.2d 478, 481.) As stated in City of Chicago:

“[T]he decision as to whether property is exempt ‘depends solely upon an application of the appropriate legal standard to the undisputed facts.’ Illinois Central Gulf R.R. Co. v. Department of Local Government Affairs (1983), 95 Ill. 2d 111, 129[, 447 N.E.2d 315].
‘It is the well settled rule of law in the State of Illinois that all property is subject to taxation, unless exempt by statute, in conformity with the constitutional provisions relating thereto. Taxation is the rule — tax exemption is the exception.’ (Rogers Park Post No. 108 v. Brenza (1956), 8 Ill. 2d 286, 289-90[, 134 N.E.2d 292].) ***
Each individual claim must be determined from the facts presented. (Coyne Electrical School v. Paschen (1957), 12 Ill. 2d 387, 394[, 146 N.E.2d 73].) In determining whether property is included within the scope of a tax exemption all facts are to be construed and all debatable questions resolved in favor of taxation. Rogers Park Post, 8 Ill. 2d at 290.” 147 Ill. 2d at 491-92, 590 N.E.2d at 481.

Property owned by charitable organizations and used exclusively for charitable purposes is exempt by authority of article IX, section 6, of the Illinois Constitution of 1970 (Ill. Const. 1970, art. IX, §6) and section 19.7 of the Illinois Revenue Act of 1939 (Ill. Rev. Stat. 1989, ch. 120, par. 500.7). In this appeal, the Department does not dispute that the. property was used for charitable purposes throughout 1990. The Department argues only that the circuit court erred in reversing the Department’s determination that the property was not “owned” by a charitable organization prior to the October 1990 amendment to the lease.

The question of whether a sale and lease-back agreement provided sufficient incidents of ownership to qualify a charitable organization/ lessee as an “owner” for purposes of the statutory exemption was addressed in Cole Hospital, Inc. v. Champaign County Board of Review (1983), 113 Ill. App. 3d 96, 446 N.E.2d 562, a case relied on by the circuit court in rendering its opinion herein. In Cole, as here, the not-for-profit hospital entered into a sale/lease-back agreement with a for-profit corporation because of difficulty in obtaining conventional financing. The significant difference between the agreement there and the original agreement in this case concerns the “right of first refusal” clause. In Cole, the agreement granted the lessee both a right of first refusal and an absolute option to purchase on the 11th and 16th anniversary dates of the lease. This factor was cited by the Cole court in support of the circuit court’s decision in that case exempting the lessee from taxation. However, the court cautioned that “[t]here are few, if any per se rules in the field of property taxation. Obviously not every lease qua lease will qualify for exemption. [Citations.] When, under proper circumstances, a sale-and-lease-back is used as a financing device, alternatively to conventional financing, it may qualify.” 113 Ill. App. 3d at 101, 446 N.E.2d at 565.

In our opinion, the right to choose when and if property may be transferred is the single most significant incident of real estate ownership. In the case before us, the sale/lease-back agreement, as originally drafted, retained solely in the for-profit lessor, Care Center, the right to choose when and if to convey title. The not-for-profit lessee, Retirement Center, had no control over the decision to convey until the lease was amended on October 2, 1990. Prior to that date, Retirement Center was granted only the option to accept or reject Care Center’s terms of conveyance at such time as Care Center chose to convey to a third party. Thereafter, by amendment, Retirement Center acquired not only an unconditioned option to purchase on the fifteenth and twentieth anniversaries of the lease, but also an agreement as to how the purchase price was to be computed if Retirement Center chose to exercise its option. Consequently, and given the preference for taxation over exemption, we find no error in the Department’s decision. The Department correctly ruled that the incidents of ownership in Retirement Center changed for tax purposes upon adoption of the amendment to the lease in October 1990 and that prior thereto Retirement Center was ineligible for the charitable use exemption.

We conclude that the trial court’s reversal of the Department’s decision denying an exemption for January through September 1990, during which period Retirement Center’s incidents of ownership did not include any control over the transferability of the real estate, is contrary to the manifest weight of the evidence and must be reversed.

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

Reversed.

McCUSKEY and GORMAN, JJ., concur.


text:
    BECKY LATTY, Adm’r of the Estate of Jason A. Latty, Deceased, Plaintiff-Appellant, v. SHOLE JORDAN, Defendant-Appellee.
    Third District
    No. 3—92—0132
    Opinion filed November 30, 1992.
    Roger C. Elliott, of Elliott & McClure, of Momenee (Paul E Michel, of counsel), for appellant.
    Dunn, Hayes, Condon & Marsaglia, of Morris (Robert C. Marsaglia, of counsel), for appellee.
   PRESIDING JUSTICE BARRY

delivered the opinion of the court:

Plaintiff Becky Latty, administrator of the estate of her deceased son, Jason Latty, appeals from summary judgment entered in favor of defendant Shole Jordan in an action for wrongful death. Defendant’s negligent entrustment of a firearm to 11-year-old Joseph Newman was alleged to have been the cause of Jason”s death.

Plaintiff’s primary contention on appeal is that the pleadings, answers to interrogatories, and depositions present a material issue of fact as to whether defendant entrusted his .35 caliber rifle to Joseph Newman. The trial court ruled that the depositions show conclusively that defendant entrusted the rifle only to Arthur Newman, Joseph’s father, and not to Joseph. In determining whether the moving party is entitled to summary judgment, the court must construe the pleadings, depositions, affidavits, and admissions strictly against the movant and liberally in favor of the opponent. In re Estate of Whittington (1985), 107 Ill. 2d 169, 483 N.E.2d 210.

According to the depositions in the record on appeal, defendant had charge of a youth ministry program at a large farm home located about one mile outside of Momence. He took in children who had no parents and occasionally had senior citizens there as well, but his own residence was located in town. He called the farm house the Garden of Prayer.

In late December of 1989 defendant agreed that Arthur Newman and his son Joseph, both of Justice, Illinois, could come to the Garden of Prayer to do some hunting. They stayed in the house, sleeping with other guests in a large room called the “Blue Room.” One week later the Newmans returned for another hunting trip. Joseph had his own .22 caliber rifle which was a gift on his eleventh birthday, and his father had one or two handguns. During this second visit, defendant offered his own .35 caliber rifle to Arthur Newman for use while hunting. Arthur stated that he told defendant that Joseph knew how to use a rifle and that defendant put no restrictions on the use of the rifle when he gave it to him.

On Tuesday afternoon, January 2, Arthur and Joseph engaged in target practice with the .35 caliber rifle in the yard of the Garden of Prayer house. They were joined by a neighbor, a resident of the Garden of Prayer, and Jason Latty, a 14-year-old boy who lived near defendant in Momence. Defendant was in the house during the target shooting and was said to have heard Arthur say how well Joseph shot with the rifle. In his deposition, defendant stated that he knew Joseph was shooting the rifle during target practice.

On Thursday, January 4, Jason Latty was again at the Garden of Prayer, having been given a ride there by defendant. About 1 p.m. on that day, Arthur, Joseph and Jason went hunting for deer and rabbit. Before going off to hunt Arthur told defendant that the three of them were going to go hunting. Joseph had defendant’s .35 caliber rifle while Jason had one of the handguns belonging to the Newmans. Arthur took the two boys to a tree platform where they were to watch for an animal to shoot while Arthur went to a different stand “within hollering distance” of the boys. After a while the boys got cold and returned to the house without telling Arthur.

According to Joseph, they first went to the Blue Room, where he disarmed the handgun and put it under a mattress. He then put the loaded rifle under a sleeping bag. He said that they always hid the guns to keep them out of the reach of smaller children who were sometimes in the house. Joseph and Jason then went to the kitchen for something to eat and to watch TV with some of the other people. Defendant saw the boys in the kitchen and spoke to them but then, without inquiring about their guns, he returned to his work in another room where he was hanging a door.

After a time, Joseph and Jason went back upstairs and began to play with the two guns by pointing them at each other in imitation of TV. Then they realized they should not be playing with the guns. As Joseph attempted to “de-cock” the rifle, his finger slipped and the gun fired, striking Jason. The shot was fatal.

Jason was taken to St. Mary’s Hospital in Kankakee. In the emergency room waiting room, defendant met Jason’s parents. He told them that he would not have allowed the Newmans to be at his place if he had known they came to hunt because he runs a house of God. He also said that he does not allow guns at his house. These statements were contradicted by defendant’s subsequent assertions in his deposition.

The trial court determined that defendant entrusted his .35 caliber rifle to Arthur Newman, apparently without considering whether the evidence, viewed in the light most favorable to plaintiff, could give rise to an inference that defendant impliedly entrusted the rifle to Joseph as well.

This court has previously stated:

“Inferences may be drawn from the facts which are not in dispute, and if a fair-minded person could draw different inferences from these facts, then a triable issue exists. [Citation.] Summary judgment should be granted only when the legal and factual right to it is clear and free from any doubt.” Carroll v. City of Galesburg (1988), 177 Ill. App. 3d 814, 816-17, 532 N.E.2d 1048.

Negligent entrustment has been said to consist of entrusting a dangerous article to another whom the lender knows, or should know, is likely to use it in a manner involving an unreasonable risk of harm to others. (Teter v. Clemens (1986), 112 Ill. 2d 252, 492 N.E.2d 1340.) Furthermore, in Kosrow v. Acker (1989), 188 Ill. App. 3d 778, 544 N.E.2d 804, the court held that entrustment includes giving express or implied permission and that implied permission exists where an inference or circumstance arises out of a course of conduct or a relationship between the parties whereby there is mutual acquiescence or lack of objection in a manner that generally would indicate permission.

In the case before us, the evidence allows a reasonable inference to be drawn that defendant knew of and acquiesced in the use of his .35 caliber rifle by 11-year-old Joseph on the day of the accident. Such acquiescence could support a finding of implied permission. Obviously, other inferences would also be reasonable and, therefore, a material issue of fact exists which requires a jury determination. The trial court erred in its ruling.

Although the trial court did not reach the question of negligence, we must determine whether a material issue of fact is presented as to the negligence of defendant’s conduct in allowing his rifle to be used by Joseph. In Teter v. Clemens, the court quoted with approval from Comment b to section 308 of the Restatement (Second) of Torts (1965), which says in part:

“[Negligence by permitting another to use a thing] has its most frequent application where the third person is a member of a class which is notoriously likely to misuse the thing which the actor permits him to use. Thus, it is negligent to place loaded firearms or poisons within reach of young children.”

In the case before us, defendant’s conduct went far beyond placing loaded guns within a child’s reach; he permitted Joseph to have possession of a .35 caliber rifle for hunting outdoors and to return to the house with the rifle without providing any supervision of the boy on the premises.

Joseph’s father, Arthur Newman, testified that Joseph had been instructed in gun safety but that he still had to be supervised because a child forgets to do things. (Cf. Salvi v. Montgomery Ward & Co. (1986), 140 Ill. App. 3d 896, 489 N.E.2d 394.) The events of January 4, 1990, demonstrate the tragic truth of Arthur’s statement. We conclude that the circumstances of this case could reasonably support a finding of negligence on the part of defendant.

For the foregoing reasons, we reverse the summary judgment entered in the circuit court of Kankakee County and remand for further proceedings consistent with this opinion.

Reversed and remanded.

SLATER and HAASE, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RAJU K. GOSWAMI, Defendant-Appellant.
    Third District
    No. 3—91—0200
    Opinion filed November 23, 1992.

      Sherri Carr, of Kankakee, for appellant.
    Marc Bernabei, State’s Attorney, of Princeton (John X. Breslin and Gary F. Gnidovec, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE BARRY

delivered the opinion of the court:

Defendant Raju Goswami appeals from his conviction for the offense of unlawful manufacture of cannabis. After his trial by jury resulted in a verdict of guilty, defendant was sentenced to a term of years in the Illinois Department of Corrections.

The testimony at trial disclosed that two men responsible for maintenance at the westbound rest area located in Bureau County at about mile 50 of Interstate 80 were at work early on Sunday morning, November 11, 1990, when they saw a car pull into the rest area. The driver and two passengers came into the rest area building and then went back outside. One of the men returned to the car, while defendant and the third man walked across a muddy construction area behind the building and entered a cornfield by climbing over a boundary fence which separated the State property from the privately owned land to the north.

Both State’s witnesses testified that they saw the two men walking in the cornfield. Richard Scott, the rest area superintendent, saw defendant picking something and putting it into something. He saw that defendant had cleaned weeds out of the fence row and that at times he walked into the rows of corn. Scott called the State Police, and Trooper Stuart Weyforth arrived about 15 minutes later. Scott testified that the two men were in the cornfield a total of about 30 minutes.

Trooper Weyforth stopped first at the parked car and noticed a box of large brown trash bags open on the back seat. He could see two men walking back and forth in the cornfield. Accompanied by the driver of the car, the trooper started walking toward the cornfield and met the two men about midway across the construction area. Trooper Weyforth testified that defendant was wearing dark pants with mud caked on them below the knee, and his companion, David Kord, also had mud on his clothing.

Kord and defendant told the trooper they were just stretching their legs. The trooper then noticed some empty brown garbage bags on the ground behind a nearby dirt pile. Kord stated, “Those are our bags, we came out here to look for pot, but we didn’t find any.” At the time he made that statement, Kord was four or five feet from the trooper and only one or two feet from defendant. According to Trooper Weyforth, defendant just stood there and made no response.

The trooper then walked over behind the pile of dirt and saw another bag which was about one-half full of marijuana. As he walked back toward the three men, he asked, “Where is the rest of this?” Kord, who was still standing one or two feet from defendant, answered, “That’s all there is, that’s all we could find.” Again, defendant said nothing.

At that point, the trooper told the three men to walk to the parking lot. They began to do so with the trooper walking with them. After one or two minutes, defendant said, “Trooper, you did not see that bag in my hand.” After they reached the parking lot, the trooper told the men they were under arrest. The bag was later tested at the State crime laboratory and determined to contain 450.3 grams of cannabis.

Defendant testified in his own behalf. He said that he followed Kord to the cornfield and looked at the scenery. He saw Kord picking some plants, and after Kord told him it was marijuana, defendant urged him to stop because he would get them all in trouble. Defendant said he was especially concerned because of his prior criminal record.

According to defendant, after they met Trooper Weyforth, the men did not stand close together, and he could not hear what Kord and the trooper were saying. However, after the trooper found the bag of marijuana, defendant heard Kord say that “we picked it,” and defendant says he immediately protested. Defendant stated that he was 20 feet from the trooper and that the officer did not hear him because he was conversing with Kord. Defendant further testified that as the trooper came walking toward him, he said, “Officer, you never saw that bag in my hand and I never touched it, I never touched it.”

Defendant also testified that, as the trooper told them to walk back to the car, defendant assumed they were being arrested. He stated that he again said, “Officer, I had absolutely nothing to do with this.” It was defendant’s recollection that only five or six seconds elapsed between the time the trooper picked up the bag of marijuana and defendant’s assertion that he had nothing to do with it. Defendant insisted that he had no mud on his clothes at the time of his arrest, other than some which had splashed on his left pant leg when he jumped a puddle. Testifying in corroboration was a trusty from the Bureau County jail who stated that he had been responsible for laundering the clothes defendant wore when arrested and that there was no mud on those clothes.

The primary issue on appeal is whether the trial court erred in admitting evidence of the incriminating statements made by Kord to the trooper and the fact of defendant’s silence following those statements. Defendant initially contends that the confession of a codefendant (Kord) inculpating defendant was not admissible in the absence of the codefendant testifying since defendant was denied his right to confront and cross-examine his accuser. Defendant relies upon People v. Pettis (1982), 104 Ill. App. 3d 275, a case that involved a codefendant’s statement made after both defendants were in custody. Nothing in that opinion indicates that the disputed statement was made in the presence of the defendant Pettis or that Pettis had remained silent after hearing the accusation against him. People v. Pettis is not applicable here.

The State urges us to apply the rule that a defendant’s silence following an accusative statement may be considered as a tacit admission of the charge contained in the accusation and that both the statement of accusation and defendant’s silence are admissible as an exception to the hearsay rule. This rule was clearly stated in People v. Miller (1984), 128 Ill. App. 3d 574, 583, 470 N.E.2d 1222, as follows:

“It is well established that when a statement, incriminating in character, is made in the presence and hearing of the accused, and such statement is not denied, contradicted, or objected to by him, both the statement and the fact of defendant’s failure to deny it are admissible as evidence of his acquiescence in its truth. (People v. Morgan (1976), 44 Ill. App. 3d 459, 462, 358 N.E.2d 280.) In order to qualify as an implied admission or an admission by silence, it is necessary that the circumstances be such ‘ “that the accused has heard the statement implicating him and has voluntarily refused to challenge the statement.” ’ (People v. McCain (1963), 29 Ill. 2d 132, 135, 193 N.E.2d 784, quoting People v. Nitti (1924), 312 Ill. 73, 91, 143 N.E. 448; see also People v. Simpson (1976), 38 Ill. App. 3d 318, 321-22, 349 N.E.2d 441.)”

Relying upon People v. Miller and the authorities cited therein, we conclude that the admission of Kord’s statements and defendant’s silences was not a violation of defendant’s right to confrontation and cross-examination if the evidence in question meets the requirements of the tacit admission rule. This brings us to defendant’s second contention, which is that the requirements of the tacit admission rule were not satisfied here.

The necessary elements for admissibility are (1) that defendant heard the accusative statement, (2) that defendant had an opportunity to reply and remained silent, and (3) that the accusation was such that the natural reaction of an innocent person would be to deny it. (People v. McCain (1963), 29 Ill. 2d 132, 193 N.E.2d 784.) Defendant argues that he was not silent in the face of Kord’s incriminating statements but rather that he denied participation in Kord’s illegal activities when he told the trooper, “You did not see the bag in my hand,” while walking back toward the parking area.

Clearly an issue of fact was presented by the evidence concerning defendant’s response to Kord’s statements. Trooper Weyforth indicated that defendant remained silent immediately after both statements by Kord which implicated defendant in the collection of marijuana from the cornfield. Not until a minute or two after the men began to walk to the parking area did defendant speak. Defendant, on the other hand, said he first denied involvement immediately after Kord’s statement and that he again denied participation five or six seconds later. The trial court could reasonably have found the trooper’s version to be true, and then decided that an innocent person would be expected to speak at once to deny the accusation of illegal activity, particularly a person who was concerned about doing something wrong when he had a prior criminal record, as defendant indicated he was.

No cases relating to the timeliness of the denial have been found. We hold that a denial must be made sufficiently close to the time of the accusation to relate directly to it and be a reasonable response to the accusation. The immediacy and duration of the silence are factors to be considered in determining the admissibility of such evidence. Under the circumstances present here, we conclude that defendant’s initial silence amounted to a failure to voice a timely denial of involvement in an activity he now admits he knew was criminal.

Not only was defendant’s belated response to Kord’s accusation not timely, but the trial court also ruled that defendant’s subsequent assertion was not a denial of culpability. According to the trooper, defendant only said that the trooper did not see him with the bag; he did not deny touching the bag or picking marijuana. It was not error to conclude that an innocent person would have denied involvement in the pot-gathering activity rather than merely challenging what the trooper saw. •

Defendant further argues that the State failed to prove that he heard the accusations, that he had an opportunity to deny them, and that Kord’s statements would have been denied by an innocent person. We disagree and hold that the testimony of Trooper Weyforth was sufficient to support the trial court’s ruling that the evidence was admissible.

Defendant also contends that this case comes within an exception to the tacit admission rule which was noted in People v. Bennett (1954), 3 Ill. 2d 357, 361, 121 N.E.2d 595, 598, where the court held that the silence of an accused is not admissible in evidence where charges are made against him in circumstances such that “he is restrained from speaking either by fear, doubt of his rights, instructions given him by his attorney or a reasonable belief that it would be better or safer for him if he kept silent.” People v. Bennett involved a defendant in custody who remained silent when questioned about his commission of a crime. The case predates the landmark decision of Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, which, inter alia, requires law enforcement officers to warn defendants of their constitutional right to remain silent. In our view, Miranda v. Arizona changed the rules concerning prosecutorial comment on defendant’s silence when accused of a crime, thus negating the statement in People v. Bennet.

Defendant also argues that he was effectively “in custody” at the time Kord made his statements incriminating defendant and, therefore, that the State is barred from referring to defendant’s silence. (See People v. Green (1979), 74 Ill. 2d 444, 386 N.E.2d 272.) A review of the testimony of Trooper Weyforth and defendant concerning the situation at the time Kord made his two statements incriminating defendant indicates that a custodial interrogation was not taking place. The conversations in the construction area were a general investigatory questioning to determine whether a crime had occurred, and at the time Kord admitted that the marijuana in the bag “was all we could find,” the three suspects were standing in an open space some distance from the police officer. A reasonable person innocent of any crime would not perceive himself to be in custody under those circumstances. (See People v. Wipfler (1977), 68 Ill. 2d 158, 368 N.E.2d 870; People v. Romano (1985), 139 Ill. App. 3d 999, 487 N.E.2d 785.) Furthermore, defendant himself testified that he believed they were being arrested when the trooper told them to walk back to the parking area. This occurred after Kord’s statements and defendant’s silences.

The State claims that defendant waived his right to the exclusion of references to custodial silence on the ground that no objections were made at trial. The record on appeal, however, discloses that defendant objected several times during trial to the admissibility of Kord’s statement and defendant’s silence and also objected to improper comment on his right to remain silent. This issue was also raised in defendant’s post-trial motion. We hold that it was not waived.

Finally, defendant contends that he was not proved guilty beyond a reasonable doubt since there was no evidence to corroborate Kord’s incriminating statements, there was no mud on defendant’s clothing, and the scientific evidence was not reliable due to the State’s failure to prove the chain of possession. Considering the evidence in the light most favorable to the prosecution, we conclude that a reasonable trier of fact could find all the elements of the crime proved beyond a reasonable doubt. People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267.

In this case, the circumstantial evidence alone was sufficient to support defendant’s conviction. The report of proceedings discloses that one of the maintenance men saw defendant picking something along the fence row and putting it into something. The trooper saw mud on defendant’s pants and found a bag of marijuana which Kord stated the two men had picked. Also, defendant stipulated to the chain of possession of the marijuana. This evidence corroborated Kord’s admissions and, taken altogether, was sufficient to sustain the judgment of conviction.

We affirm the judgment of the trial court.

Affirmed.

McCUSKEY and HAASE, JJ., concur.


author: JUSTICE STOUDER

text:
    ALBA M. KINKIN et al., Trustees, et al., Plaintiffs-Appellees and Cross-Appellants, v. MARY MAGNANI MARCHESI, Defendant-Appellant and Cross-Appellee.
    Third District
    No. 3—92—0009
    Opinion filed October 29, 1992.
    Donna Engels and Linda A. Giesen, both of Law Offices of Henry S. Dixon, of Dixon (Henry S. Dixon, of counsel), for appellant.
    Charles W. Helmig, of Granville, for appellees.
   JUSTICE STOUDER

delivered the opinion of the court:

The defendant, Mary Magnani Marchesi, appeals from a judgment entered in favor of the plaintiffs, Alba M. Kinkin, Minnie Johnson and Raymond A. Johnson. The plaintiffs have filed a cross-appeal.

The instant dispute has its origins in the will of Virgilio and Dalema Cattani. The record shows that Dalema was the second wife of Virgilio. The plaintiffs Alba Kinkin and Minnie Johnson are the children of Virgilio by his first marriage. Plaintiff Raymond Johnson is Minnie Johnson’s son and Virgilio’s grandson. The record also shows that Minnie Johnson died during the course of the proceedings below.

The will was signed by Virgilio and Dalema on November 3, 1975. It stated in pertinent part:

“Last Will and Testament of
VIRGILIO CATTANI AND DALEMA CATTANI
WE, VIRGILIO CATTANI AND DALEMA CATTANI, husband and wife, of the Village of Mark, County of Putnam and State of Illinois, each being of sound and disposing mind and memory, do hereby respectively make, declare, establish and publish this instrument to be jointly as well as severally our Last Will and Testament, hereby revoking any and all wills and codicils heretofore made by us, or either of us, and we do hereby mutually agree that our purpose is to dispose of our property in accordance with a common plan. The reciprocal and other gifts made herein are in fullfillment [sic] of this purpose and in consideration of each of us waiving the right, during our joint lives, to alter, to amend, or revoke this will in whole or in part, by codicil or otherwise, without notice to the other and without consent of the other, or under any circumstances after the death of the first of us to die.
* * *
ARTICLE TWO
Regardless of the order of our deaths, we give and bequeath all of the U. S. Bonds of Dalema Cattani, presently registered jointly with her sister, Mary Magnani Marchesi, and her cedar chest and its contents and all of her china to her sister, Mary Magnani Marchesi, or if she should be deceased, to her issue per stripes [sic] and not per capita.
ARTICLE THREE
Regardless of the order of our deaths, we mutually give, devise, and bequeath all of the rest, residue and remainder of our separate estates wherever located to the two daughters of Virgil [sic] Cattani, Alba M. Kinkin and Minnie A. Johnson, and to the grandson of Virgil [sic] Cattani, Raymond Allen Johnson, as Trustees, all upon the following trusts and uses: a) In the event that Virgil [sic] Cattani shall depart this life first, our trustees shall pay to Dalema Cattani, such sums out of the income and principal as shall be necessary to provide support for her, taking into consideration the manner of her living during the lifetime of both of us and we also direct the trustees to provide her a place of residence in the home in which she presently resides, so long as she shall desire, and we further direct that the trustees shall provide for all medical care which she may require and shall also provide for all nursing home care should such be required.”

The will contained a companion provision providing for Virgilio in the event Dalema predeceased him. The will named the plaintiffs as the co-executors of the will and co-trustees of the resulting testamentary trust.

Virgilio died on November 18, 1978. The will was probated and the plaintiffs acting as co-executors inventoried the then existing assets of the estate. The assets were collected and transferred to the testamentary trust. The record shows the estate was found to have been fully administered and an order of discharge was entered. Dalema continued living in the home provided by Virgilio. The record shows funds from the trust were utilized for the physical maintenance of this residence. However, Dalema never received any funds in the form of cash from the trust during her remaining lifetime.

Following Virgilio’s death, Dalema received social security benefits, a miner’s pension and a “Black Lung” pension. As a former school teacher, she also received a teacher’s pension. Also, subsequent to Virgilio’s death, Dalema was injured in an auto collision. As a result, she secured approximately $20,000 in a personal injury settlement.

The record shows the funds from these various sources were deposited by Dalema in the Granville National Bank and the First National Bank in Amboy, Illinois. The evidence at trial showed numerous certificates of deposit (CDs) and a savings account. No specific origin for most of these deposits was shown. By the time of her death on February 19, 1986, the ownership interest in the savings account and most, if not all, of the CDs had been transferred, established or placed in joint tenancy with Dalema’s sister, the defendant, Mary Marchesi.

The United States bonds mentioned in article two of the will were redeemed prior to Dalema’s death. There are vague references throughout the record to money kept in the cedar chest during Dale-ma’s lifetime. How much money was kept there, if any, and when this alluded-to fund was removed from the chest was never shown. The chest remained in the Cattani home for some time after Dalema’s death and was apparently in the office of the plaintiffs’ attorney at the time of the trial.

Upon Dalema’s death, the plaintiffs, as co-executors of Dalema’s estate, filed an inventory of the estate in which they included the bank deposits of Dalema held in joint tenancy with the defendant. When the funds were not turned over, the plaintiffs instituted the instant action against the defendant.

Subsequently, the plaintiffs filed a motion for summary judgment as to liability on counts I and II of their amended complaint. The plaintiffs maintained that under the will Dalema made a contract to dispose of her property in accordance with the terms of the will. The defendant filed a cross-motion for summary judgment and a motion to strike affidavits filed in connection with the plaintiffs’ motion for summary judgment.

On February 27, 1990, the trial court granted partial summary judgment for the plaintiffs on counts I and II of their amended complaint. The court found the document was a joint and mutual will and that the signatories were contractually bound. The court granted the plaintiffs summary judgment as to the portion of the CDs that were funded by any and all pensions and social security, including the teacher’s pension. Plaintiffs were also entitled to all CDs funded by the personal injury settlement. The court found the defendant had the right to all CDs and accounts owned jointly by Dalema and the defendant at the time of the execution of the will, and/or funds derived therefrom, and any money in the cedar chest at the time of Dalema’s death. The court granted the defendant summary judgment on the remaining counts of the plaintiffs’ amended complaint.

An appeal by the defendant was dismissed by this court because no final and appealable order was entered by the trial court. (Kinkin v. Marchesi (1991), 213 Ill. App. 3d 176, 571 N.E.2d 501.) The cause proceeded to a bench trial at which plaintiffs presented the testimony of Philip Carlson, an officer of the Granville National Bank. He identified numerous exhibits evidencing the various accounts and records, including interest checks. Raymond Johnson testified that following Dalema’s death the interest checks received at a post office box in Mark, Illinois, were turned over to his attorney. The checks were not cashed or placed in an interest-bearing account.

The trial court found the plaintiffs were entitled to all accounts at the Granville National Bank together with all interest and earnings. The court ordered the plaintiffs to turn the cedar chest over to the defendant. The court found the contents of the chest to be linens and apparel. The court made no finding as to the accounts at the First National Bank. The defendant appeals and the plaintiffs have filed a cross-appeal.

The defendant contends the trial court erred in finding the Cattanis executed a joint and mutual will. She asserts the will fails to meet the criteria for a joint and mutual will as set forth in Rauch v. Rauch (1983), 112 Ill. App. 3d 198, 445 N.E.2d 77.

A joint and mutual will is a single testamentary instrument which contains the wills of two or more persons, executed jointly, and disposes of property owned in severalty, in common, or jointly by the testators. (King v. Travis (1988), 170 Ill. App. 3d 1036, 524 N.E.2d 974.) A joint and mutual will must be executed pursuant to a contract between the testators, requiring the survivor of them to dispose of the property as the will’s provisions instruct. (Rauch v. Rauch (1983), 112 Ill. App. 3d 198, 445 N.E.2d 77.) The will itself may comprise the contract. (Helms v. Darmstatter (1966), 34 Ill. 2d 295, 215 N.E.2d 245.) Upon the death of one of the testators, the will becomes irrevocable, the survivor is estopped from disposing of the property in a manner other than under the terms of the will, and third-party beneficiaries may enforce the contract. (In re Estate of Signore (1986), 149 Ill. App. 3d 904, 501 N.E.2d 282.) The party arguing that the will is joint and mutual has the burden of establishing this point and it must be done by clear and convincing evidence. (In re Estate of Mueller (1975), 26 Ill. App. 3d 163, 324 N.E.2d 674.) On the other hand, where a single instrument is merely made the will of two or more individuals and is jointly executed by them, none of the attendant burdens or restrictions of a joint and mutual will apply. King v. Travis (1988), 170 Ill. App. 3d 1036, 524 N.E.2d 974.

In determining whether the document is a joint and mutual will, Illinois courts consider the following five characteristics: (1) the label the testators have assigned to the will — whether they refer to it as a joint and mutual will; ,(2) reciprocal provisions in the will — whether the testators made a disposition of the entire estate in favor of the surviving spouse; (3) whether there is a pooling of the testators’ interests— whether owned jointly, in common, or severally — into one joint fund; (4) whether there is a common dispositive scheme under which the parties dispose of the common fund by bequeathing it to their heirs in approximately equal shares; and (5) whether the testators use common plural terms such as a “we” and “our.” See Rauch v. Rauch (1983), 112 Ill. App. 3d 198, 445 N.E.2d 77; Perino v. Eldert (1992), 229 Ill. App. 3d 602, 593 N.E.2d 151.

The will in the instant case was titled the “Last Will and Testament of VIRGILIO CATTANI AND DALEMA CATTANI.” In the body of the document the Cattanis state the instrument is “jointly as well as severally” their last will and testament. Recently, this court in addressing the same issue presented here found the word “severally” to indicate completely the opposite of the word “mutually.” (See Perino v. Eldert (1992), 229 Ill. App. 3d 602, 593 N.E.2d 151; Black’s Law Dictionary 1232 (5th ed. 1979).) Thus the will fails to satisfy the first Rauch characteristic.

We recognize that some courts have found the label, standing alone, was not necessarily dispositive in determining whether a will was joint and mutual. (See In re Estate of Kaplan (1991), 219 Ill. App. 3d 448, 579 N.E.2d 963.) However, we also find the will fails to meet at least two other Rauch characteristics.

First, the will did not provide for a common dispositive scheme under which the testators disposed of the “common fund” by bequeathing it to their heirs in approximately equal shares. Under the will, except for the bonds and cedar chest, the entire estate passed to Virgilio’s heirs alone.

Second, the will set up a trust at the time of the death of the first spouse. There was no provision for property acquired in the interim between the death of Virgilio and the death of Dalema. We note there was no attempt by the co-trustees, during Dalema’s life, to claim the after-acquired property was a part of the res of the trust. In fact, the co-trustees stated they had no interest in what Dalema did with the money she received from social security and the pensions.

In sum, we find the instant document was not a joint and mutual will. Therefore, Dalema was free to use and dispose of the funds in any manner she wished, including placing the money in joint accounts and CDs with the defendant. The defendant possessed survivorship rights in the jointly held accounts and CDs (Ill. Rev. Stat. 1991, ch. 76, par. 2(a)) which were not voidable under the will. Those accounts and CDs passed directly to the defendant’s sole ownership upon Dale-ma’s death.

Given our finding that the will was not joint and mutual, we need not address the evidentiary issue raised by the plaintiffs’ cross-appeal.

For the forgoing reasons, the judgment of the circuit court of Putnam County is reversed.

Reversed.

McCUSKEY and GORMAN, JJ., concur.