author: JUSTICE GREEN

text:
    RURAL ELECTRIC CONVENIENCE COOPERATIVE COMPANY, Plaintiff-Appellant, v. SOYLAND POWER COOPERATIVE, INC., Defendant-Appellee.
    Fourth District
    No. 4—92—0392
    Opinion filed December 23, 1992.
    Rehearing denied February 10, 1993.

      Frank K. Heap, John W. Rotunno, and Daniel Lawler, all of Bell, Boyd & Lloyd, of Chicago, for appellant.
    A. James Shatter and James E. Peckert, both of Kehart, Shatter, Hughes & Webber, P.C., of Decatur, for appellee.
   JUSTICE GREEN

delivered the opinion of the court:

On June 15, 1989, plaintiff Rural Electric Convenience Cooperative (RECC), an Illinois not-for-profit corporation, filed a four-count complaint in the circuit court of Macon County against Soyland Power Cooperative, Inc. (Soyland), the same type of corporation. The complaint explained that Western Illinois Power Cooperative, Inc. (WIPCO), of which RECC was a member, had merged with Soyland, and RECC claimed entitlement to relief from the effects of the merger. Soyland filed a motion to dismiss maintaining the complaint failed to state a cause of action and, in any event, was defeated by affirmative matter showing the lack of joining an indispensable party. After a hearing, the court entered an order on April 14, 1992, allowing the motion to dismiss and denying RECC leave to amend. RECC appeals. We affirm.

Before designating separate counts, the complaint made allegations applicable to all counts which stated that (1) RECC is a not-for-profit electrical distribution cooperative operating in Illinois within the meaning of section 3.4 of the Electric Supplier Act (Act) (Ill. Rev. Stat. 1989, ch. 1112/3, par. 403.4); (2) RECC purchases electricity for distribution to approximately 4,000 ratepayers; (3) on January 7, 1963, RECC, then a member of WIPCO, entered into a contract to purchase all of its electricity from WIPCO; (4) Soyland was also an electrical distribution cooperative within the meaning of section 3.4 of the Act; (5) effective March 23, 1989, a merger between WIPCO and Soyland took effect; and (6) RECC voted against the merger.

The major thrust of count I of the complaint is RECC’s request to require Soyland to purchase RECC’s interest in WIPCO as provided in section 9 of the Merger of Not For Profit Corporations Act (Merger Act), which provides in part:

“Any member of or owner of a unit of interest in any merging or consolidating corporation, *** objecting to the merger or consolidation with another corporation *** shall be obligated to sell and transfer to the acquiring corporation and the acquiring corporation shall become and be obligated to purchase such memberships or other evidences of ownership of interest, together with all rights and interest thereby represented, *** at a price equal to the fair value of such units of interest ***.” (Ill. Rev. Stat. 1991, ch. 32, par. 188i.)

Count I also alleged that under WIPCO’s articles of incorporation and bylaws, upon RECC’s cessation of membership in WIPCO, RECC’s contractual obligation to purchase power would be terminated.

Counts II, III, and IV sought a judgment declaring that a merger freed RECC from its obligations under the 1967 contract, as extended, by which RECC had purchased power from WIPCO. The counts also alleged that RECC had lent large sums of money to WIPCO and requested that Soyland reimburse RECC for all sums it had advanced after deducting costs incurred in furnishing electricity to RECC. The counts contended the duties owed RECC by WIPCO could not be assigned or delegated by WIPCO to Soyland because (1) a confidential relationship between WIPCO and RECC arose because of the large debt and a contract provision permitting WIPCO to set the charges for electricity (count II); (2) section 2 — 210(1) of the Uniform Commercial Code (Code) (Ill. Rev. Stat. 1991, ch. 26, par. 2—210(1)) prohibited the delegation of duties of performance of sales contracts (count III); and (3) the change in the makeup of the governing board of the merged corporation from that of WIPCO (with which RECC contracted to deal) made a requirement for RECC to continue with the contract unfair (count IV).

The affirmative matter set forth in Soyland’s motion to dismiss consisted of an undisputed verified statement of Soyland’s general manager that (1) in exchange for funds obtained from the Rural Electrification Administration (REA), a Federal agency, by RECC and Soyland substantially all of the assets of those cooperatives have been pledged as security to REA; and (2) the pledge included the right of Soyland to receive payments from RECC for electricity furnished under the 1963 contract between RECC and WIPCO. The amendment to the complaint which RECC sought to make when the court dismissed its original complaint would have added an additional count seeking an accounting.

The question of whether the complaint stated any cause of action is very complicated. However, we conclude no cause of action was set forth. We construe the statutory scheme concerning not-for-profit corporations to which RECC, WIPCO and Soyland were subject at the time of the merger excluded them from the provisions of section 9 of the Merger Act. Thus, Soyland was not required to purchase RECC’s interest in WIPCO and allow it to cease its membership in the merged corporation. We further hold that because of the special relationship of the three cooperatives involved, their bylaws, and the 1963 contract for purchase of power, rules otherwise possibly prohibiting the delegation of some duties under the 1963 contract were not applicable here. RECC did not state a cause of action for relief from various duties under that contract being delegated to Soyland.

RECC’s proposed amended complaint did not make material changes in its first four counts. Thus, it did not correct the weaknesses in the original complaint. Count V, the count proposed to be added, requested an accounting but did not show how legal remedies would be inadequate for RECC to obtain any monies owed it by Soy-land. Accordingly, the circuit court did not breach its discretion in denying leave to amend. (Taylor v. City of Beardstown (1986), 142 Ill. App. 3d 584, 591, 491 N.E.2d 803, 808.) Soyland contended that REA was a necessary party to the proceedings in order to protect its security interest in regard to the loans it had made to the parties. As we are affirming the judgment of the circuit court, we need not decide this question.

The question of whether count I states a cause of action turns upon the effect of section 10a of the Merger Act, which, prior to the enactment of the General Not For Profit Corporation Act of 1986 (1986 Act) (Ill. Rev. Stat. 1989, ch. 32, par. 101.01 et seq.), stated:

“The provisions of this Act shall not be applicable to corporations which are subject to the provisions of ‘An Act to revise the law relating to corporations not for pecuniary profit’ [(the 1943 Act)], enacted by the Sixty-third General Assembly.” (Emphasis added.) (Ill. Rev. Stat. 1985, ch. 32, par. 188j—1.)

The parties agree that both Soyland and WIPCO were organized under and governed by the General Not for Profit Corporation Act of 1943 (1943 Act) (see Ill. Rev. Stat. 1943, ch. 32, par. 163a et seq.), but that the 1943 Act was repealed by the 1986 Act, and that after January 1, 1987, Soyland and WIPCO have been “subject to the provisions” of the 1986 Act rather than the “provisions” of the 1943 Act.

In dismissing count I, the circuit court noted that the General Assembly enacted section 10a of the Merger Act at the same time the 1943 Act was enacted. The court deemed this action a clear indication by the General Assembly that entities such as Soyland, WIPCO, and RECC should not be subject to the Merger Act and that this policy persists. That court concluded that when the General Assembly repealed the 1943 Act by the enactment of the 1986 Act, the failure to amend section 10a of the Merger Act to cover corporations subject to the 1986 Act was merely legislative oversight. We agree with that analysis.

RECC maintains, on the other hand, that because section 10a of the Merger Act purports on its face to exempt only corporations subject to the 1943 Act, and none of the electrical cooperatives involved here are now subject to the repealed 1943 Act, none are exempt from the provisions of section 9 of the Merger Act. That certainly is the correct interpretation to be given to the statutory scheme involved if literal interpretation is to be given to the provisions of section 10a of the Merger Act. In support of its theory, RECC recites the following holding of the supreme court:

“[T]hat where a later statute does not entirely abrogate a former act, but merely withdraws from the operation of the earlier act a portion of the cases included -within its terms, leaving the earlier act still in force except as to the cases specifically provided in the latter act, under such circumstances the repeal of the later act has the effect of again bringing the cases provided for by it under the operation of the original act ***.” Peoria & Eastern Ry. Co. v. Wright (1941), 377 Ill. 626, 632, 37 N.E.2d 322, 325.

See also People ex rel. Hoyne v. Sweitzer (1915), 266 Ill. 459, 476, 107 N.E. 902, 908.

RECC seeks to apply the above theory to the instant case by three steps. First it notes that the Merger Act originally had no exceptions to its coverage of not-for-profit corporations, but exceptions were created when section 10a of the Merger Act applicable to corporations subject to the 1943 Act was enacted. Second, it notes that, after the enactment of section 10a, the Merger Act remained effective to all not-for-profit corporations other than those subject to the 1943 Act. (Wright, 377 Ill. at 632-33, 37 N.E.2d at 325; Sweitzer, 266 Ill. at 476, 107 N.E. at 908.) Third, the repeal of the 1943 Act brought coverage of the Merger Act back to not-for-profit corporations which were no longer subject to the 1943 Act but became subject to the 1986 Act. The problem with this analysis is that it begs the question of whether the court can apply a theory of legislative oversight to determine the effect of section 10a of the Merger Act. Seemingly, if the oversight theory cannot be applied, the express language of section 10a of the Merger Act would negate application of section 10a to the three electric cooperatives involved here without the necessity of the language quoted from Wright and Sweitzer.

The parties do not dispute that the first principle of statutory construction is to determine the true intent of the legislature. (People v. Garrett (1990), 136 Ill. 2d 318, 329, 555 N.E.2d 353, 358; Kraft, Inc. v. Edgar (1990), 138 Ill. 2d 178, 189, 561 N.E.2d 656, 661.) In determining this intent, a body of law permits courts, under certain conditions, to “insert into a statute language omitted through legislative oversight.” People v. Shephard (1992), 152 Ill. 2d 489, 498; see also People v. Chandler (1989), 129 Ill. 2d 233, 253, 543 N.E.2d 1290, 1298.

The foregoing rule in regard to “legislative oversight” is applied most frequently to resolve ambiguity in legislative language in cases such as Shephard, Chandler, and People v. Parker (1988), 123 Ill. 2d 204, 209-14, 526 N.E.2d 135, 137-39. Others, however, concern situations similar to that here. The most notable such case is People ex rel. Cason v. Ring (1968), 41 Ill. 2d 305, 242 N.E.2d 267. There, the supreme court ordered a writ of mandamus to issue in an original proceeding ordering the county clerk of St. Clair County to conduct hearing upon applications for the erasure of names from the list of registered voters. The proceedings took place just prior to the general election in November 1968. Prior to a 1967 amendment to sections 4 — 12 and 4 — 13 of the Election Code (Ill. Rev. Stat. 1965, ch. 46, pars. 4—12, 4—13), those sections had required the clerk to accept applications for erasure of names from the list of registered voters on stated days and to hear those applications on other stated days close to an election.

In Ring, the 1967 amendment had changed those sections to provide that the foregoing functions should be performed in “ ‘the 1970 primary election for the nomination of candidates *** thereafter.’ ” (Ring, 41 Ill. 2d at 309, 242 N.E.2d at 269, quoting from the 1967 amendments contained in House Bill 473 (eff. Aug. 14, 1967 (1967 Ill. Laws 2987, 2995-96)).) The county clerk had refused to proceed, contending he had no duty to perform these tasks until the 1970 primary election. The supreme court decided that despite the literal wording of the legislation involved, the circumstances surrounding the enactment of the amendment clearly indicated a legislative intention that the erasure procedure was to remain as it had been for many years. The court emphasized that in determining whether to give a literal interpretation to the amendment or to write in language to cure apparent oversight, the court could consider “ ‘other circumstances surrounding the enactment of the amendment.’ (Emphasis added.) Sutherland, Statutory Construction, §1932 (3d ed. 1943) ***.” Ring, 41 Ill. 2d at 310, 242 N.E.2d at 270.

In Trustees of Schools of Township 35 North v. Sons (1963), 27 Ill. 2d 63, 187 N.E.2d 673, cited in Ring, legislation concerning the eminent domain powers of school districts had been amended in such a way that the powers of districts with a population of 1,000 to 500,000 were stated to be the same as those in districts of under 1,000 in population. The supreme court refused to give a literal interpretation to the legislation and interpreted the statute to have the same meaning as it had in the prior 50 years. In Scofield v. Board of Education of Community Consolidated School District No. 181 (1952), 411 Ill. 11, 103 N.E.2d 640, codification of election laws concerning qualification of voters in school elections had failed to list citizenship as a requirement. The supreme court wrote that requirement into the codifying act. Similarly, in Illinois Crime Investigating Comm’n v. Buccieri (1967), 36 Ill. 2d 556, 561, 224 N.E.2d 236, 240, the supreme court wrote into legislation for issuance of administrative subpoenas a requirement that they be issued only upon due notice and after a hearing.

Section 10a of the Merger Act was enacted more than 40 years before the enactment of the 1986 Act. No reason has been given as to why the General Assembly would have wished to change that policy. If a change had been intended, the General Assembly would likely have directly repealed section 10a of the Merger Act rather than have relied upon a repeal by implication. Such a repeal is not favored. (People v. Moffitt (1985), 138 Ill. App. 3d 106, 116, 485 N.E.2d 513, 521.) An aspect of the enactment of the 1986 Act further indicates an intent of the General Assembly that corporations subject to the 1986 Act continued to be exempt from the Merger Act.

Sections 111.05 through 111.50 of the 1986 Act (Ill. Rev. Stat. 1987, ch. 32, pars. 111.05 through 111.50) pertain to mergers of corporations subject to the 1986 Act. The sections contain many provisions which overlap. However, section 111.20(c) of the 1986 Act provides that when a subject corporation has members entitled to vote on mergers or consolidations, membership approval of a merger may be obtained, at a meeting when a quorum is present, upon the favorable vote “of at least 2h of the votes present and voted either in person or by proxy” with a further provision if different classes of membership are involved. (Ill. Rev. Stat. 1987, ch. 32, par. 111.20(c).) On the other hand, at all times pertinent, section 2(4) of the Merger Act required approval on such an issue by “2k in number of all the outstanding memberships or units of interest” regardless of whether those memberships or interests are present in person or by proxy at the meeting. (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 32, par. 188b(4).) Thus, the 1986 Act permits a merger on a vote which can be less than that required by the Merger Act.

The merger provisions of the 1943 Act (Ill. Rev. Stat. 1985, ch. 32, pars. 163a37 through 163a41.1) were much the same as those of the 1986 Act. Section 10a of the Merger Act was enacted to exempt the corporations subject to the 1943 Act from the provisions of the Merger Act. When the General Assembly enacted the 1986 Act, it would have been unlikely to recite in that act the details concerning mergers if that legislative body did not intend the exemption of section 10a of the Merger Act to continue in force. This intent for continued exemption is shown even more strongly by the inconsistency between the strength of the vote of members required to effectuate a merger. No reason has been advanced as to why the General Assembly would have intended for the exemption of section 10a of the Merger Act to terminate. Under these circumstances, we conclude that section 10a of the Merger Act should not be limited to a literal interpretation. Rather, the obvious legislative oversight requires an interpretation that section 10a also exempts corporations subject to the 1986 Act.

As an additional ground to support the circuit court’s dismissal of count I, Soyland asserts that any ruling which would permit RECC to withdraw from the merged corporation would violate the supremacy clause of the United States Constitution because Federal law has preempted the rights of the parties here. Soyland’s theory is that any ruling which permits or requires a sale of RECC’s interest in the merged corporation to that corporation would violate section 907 of the Rural Electrification Act of 1936 (RE Act), which provides that “[n]o borrower of funds *** shall, without the approval of the Administrator, sell or dispose of its property, rights, or franchises, acquired under the provisions of [the RE Act], until any loan obtained from the Rural Electrification Administration, including all interest and charges, shall have been repaid.” 7 U.S.C. §907 (1988).

RECC recognizes that the pleadings show it is indebted to REA but points out that the pleadings do not indicate what the proceeds of the loans were used for. The undisputed affirmative matter alleged in Soyland’s motion to dismiss does show that all of Soyland’s assets are pledged to REA, and any sums used to pay for RECC’s interest in WIPCO would have to come from those assets. We need not delve into the problems involved with this contention by Soyland, because our holding in regard to the meaning of section 10a of the Merger Act is enough to support the circuit court’s ruling on count I.

As we have indicated, counts II, III, and IV sought a declaration that RECC was relieved of its obligation to purchase electricity from Soyland, as merged with WIPCO, and to pay Soyland for this. RECC maintains that the merger effectuated an assignment or delegation to Soyland of WIPCO’s duties to RECC under the 1963 contract. RECC maintains these duties were neither assignable nor delegable. RECC maintains these duties involved personal performance, a confidential relationship between the parties, and a situation where Soyland was indebted to RECC and animosity existed between the parties. In our discussion of the assignability and delegability of duties under executory contracts, we are considering contracts where neither assignability nor delegability is expressly stated to be permissible. As far as the furnishing of electricity is concerned, that responsibility is not personal in nature and appears to be fully delegable.

The question of assignability and delegability of other responsibilities formerly undertaken by WIPCO under the 1963 contract is more complicated. Particularly perplexing is the provision of the contract which authorized WIPCO, the seller of the electricity, to fix the price to be paid by RECC based upon the expenses incurred by WIPCO in obtaining and transmitting the electricity to RECC. As between parties operating for pecuniary profit, executory contracts for supply where the purchaser determined the price have been held to be unassignable by the purchaser. (Arkansas Valley Smelting Co. v. Belden Mining Co. (1888), 127 U.S. 379, 32 L. Ed. 246, 8 S. Ct. 1308; Amsco Pipe Line Co. v. Donico Production Co. (Tex. Ct. App. 1938), 112 S.W.2d 483.) A similar rule would be logical in regard to assignments by a seller of such contracts when the seller determines the price.

The degree of trust and confidence placed by a party entitled to performance under a contract in the party required to perform has also been considered important in determining whether the responsibilities of performance can be delegated. (Ginsburg v. Bull Dog Auto Fire Insurance Association (1928), 328 Ill. 571, 572-73, 160 N.E. 145, 146; Sloan v. Williams (1891), 138 Ill. 43, 46, 27 N.E. 531, 532.) The prohibition against assigning or delegating duties when a confidential relationship is involved has been held to apply when the assignment arises from the merger of corporations for pecuniary profit. (Sally Beauty Co. v. Nexxus Products Co. (7th Cir. 1986), 801 F.2d 1001.) Animosity between RECC and Soyland has been sufficiently set forth at the pleading stage by allegations of litigation between Soyland and RECC directors.

RECC cites various cases which hold that a contractual provision entitling one party to credit from another cannot be assigned to a third party. The reasons for such a rule are obvious.- The complaint indicates WIPCO did owe large sums to RECC, and now Soyland is required to make the payment. The merger does not involve any contractual provision to extend credit, but it does involve a delegation of the responsibility to make payment to the merged corporation.

In count III of the complaint, RECC relies upon section 2 — 210(1) of the Code, which prohibits the delegation of duties under a contract for a sale if the party to whom the duty is owed “has a substantial interest in having his original promisor perform or control the acts required by the contract.” (Ill. Rev. Stat. 1987, ch. 26, par. 2—210(1).) Article 2 of the Code applies only to “transactions in goods,” that is, contracts for sale of goods. (Ill. Rev. Stat. 1991, ch. 26, par. 2—102.) We do not deem section 2 — 210 of the Code to be applicable to the present case, because the sale of electricity, which is the subject of the 1963 contract, is not a sale to the ultimate consumer even if the voltage has been reduced by a transformer before it enters RECC’s lines and even though it goes through a meter as RECC receives it. Henderson v. Anglin (N.D. Ill. Jan. 7, 1987), No. 86—C—1909 (Westlaw, Allfeds database) (not reported); Singer Co. v. Baltimore Gas & Electric Co. (1989), 79 Md. App. 461, 558 A.2d 419.

Section 111.50(d) of the 1986 Act states, in part, that upon a merger, “all property *** all debts due *** and all other choses in action, and all and every other interest *** of the corporations so merged *** shall be taken and deemed to be transferred to [the merged corporation].” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 32, par. 111.50(d).) Thus, the contract rights and obligations of WIPCO were “transferred” to Soyland upon the merger. Whether the “transfer” of contractual rights and duties which takes place when a merger occurs is subject to all of the rules concerning assignability and delegability is not entirely clear. (Compare Sally Beauty Co., 801 F.2d 1001; PPG Industries, Inc. v. Guardian Industries Corp. (6th Cir. 1979), 597 F.2d 1090, with United States Shoe Corp. v. Hackett (7th Cir. 1986), 793 F.2d 161; Alexander & Alexander, Inc. v. Koelz (Mo. App. 1986), 722 S.W.2d 311.) However, we do not determine the question of whether counts II, III, and IV state a cause of action on the basis that ordinarily a corporate merger would not subject contracts involved to general rules of assignability and delegability.

We recognize the detriment which could result to RECC when those governing Soyland rather than those previously governing WIPCO determine the amounts RECC is to pay for electricity. Count IV alleges that RECC has less representation in the merged corporation than it had before merger, and the trust and confidence RECC had in WIPCO may not exist in regard to the merged corporation. However, the 1963 contract recognized that WIPCO could take in new members. All of the detriment to which RECC complains could have resulted if WIPCO took in all of the members of Soyland under that provision rather than through merger.

The delegation of duty under the 1963 contract resulting from the merger is an internal one between not-for-profit corporations and their members rather than a delegation of duties to outsiders. We have held that RECC has no right under section 9 of the Merger Act to be bought out of the merged corporation. A contractual duty upon members of a distribution electric cooperative to continue to purchase electricity from the not-for-profit corporation of which it is a member is an inherent feature of the scheme. WIPCO’s bylaws required RECC to purchase its electricity from WIPCO as long as it remained a member. For these reasons, we hold that any delegation of duties from WIPCO to Soyland did not relieve RECC from its duty to purchase its electricity from the merged corporation.

Accordingly, as we earlier stated, we affirm the order of the circuit court dismissing RECC’s complaint and denying it leave to file an amended complaint.

Affirmed.

McCULLOUGH and COOK, JJ., concur.


source: Caselaw Access Project

author: JUSTICE STOUDER

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIE LEE MAYS, Defendant-Appellant.
    Third District
    No. 3—92—0447
    Opinion filed January 7, 1993.
    Mark D. Fisher, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Kevin W. Lyons, State’s Attorney, of Peoria (John X. Breslin and Terry A. Mertel, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE STOUDER

delivered the opinion of the court:

The defendant, Willie Lee Mays, was convicted of armed robbery (Ill. Rev. Stat. 1991, ch. 38, par. 18—2). He was subsequently sentenced to 10 years’ imprisonment. He appeals.

The record shows that the defendant robbed a gas station at knifepoint. The clerk, Corey Thomas, called the police and described the defendant. The police then followed footprints in the snow to a house. After a woman in the house gave them consent to search, they found the defendant in the attic.

The defendant initially denied the robbery to police. He later admitted he took money, but not by force. He stated that his friend, Robert King, knew Corey Thomas. Through King, the three had agreed to stage the robbery. However, Thomas denied his involvement and King could not be located to testify.

At the sentencing hearing, the defendant moved for a continuance to find an alleged witness that would exculpate him of robbery. The court granted the motion. The defendant located Jackie Exantus and then filed a post-trial motion based on Exantus’ affidavit. The affidavit stated in part:

“3. That Robert King said Willie Lee Mays never used a knife in this incident.
4. That Robert King said that Corey Thomas was supposed to give Willie the money and make it look like a robbery.”

Exantus failed to appear in court after being subpoenaed. The defendant then moved for a continuance to find Exantus. The prosecution argued against the motion, claiming that Exantus’ testimony would constitute inadmissible hearsay. The court agreed with the prosecution but granted the motion. The court stated that the reason for the continuance was not to give the defendant an opportunity to bring Exantus into court, but to give the defense an opportunity to bring in King.

Defense counsel failed to locate King. However, he learned of potential evidence that Thomas was arrested for stealing at the gas station. Based on these two factors, the defendant moved for another continuance. The court, in denying the motion, found that it was unlikely King could be located, and also cited lack of due diligence in obtaining the evidence regarding Thomas.

The defendant first argues on appeal that the trial court erred by advising counsel that Exantus’ testimony was inadmissible absent the testimony of King. The defendant contends the trial court also erred when it suggested that defense counsel find King and not Exantus. The defendant alleges that the unknown testimony of Exantus might be admissible and might be newly discovered evidence which might change the outcome of the trial.

The defendant argues that Exantus’ testimony might be admissible under Chambers v. Mississippi (1973), 410 U.S. 284, 35 L. Ed. 2d 297, 93 S. Ct. 1038. Under Chambers, a third party’s admission against penal interest is admissible as an exception to the hearsay rule if the following factors apply: the statement was made spontaneously to close acquaintances shortly after the crime; the statement was corroborated by other evidence; the statement was against the third party’s interest; and the declarant was present in court, under oath, and could have been cross-examined. In People v. Bowel (1986), 111 Ill. 2d 58, 488 N.E.2d 995, the Illinois Supreme Court rejected the contention that all four of the factors in Chambers must be met. It stated the factors “are to be regarded simply as indicia of trustworthiness and not as requirements of admissibility.” 111 Ill. 2d at 67.

Nevertheless, even with Illinois’ relaxed standard, Exantus’ affidavit concerning King’s statement was not a third-party admission against penal interest. In the affidavit, Exantus states that King told him the robbery was a setup. However, Exantus never stated that King admitted to being involved with the robbery. King’s mere knowledge of the crime was not an admission to committing it.

We further note that the trial judge only encouraged defense counsel to try to find King instead of Exantus because of what he saw as a potential hearsay problem. The judge never found Exantus’ testimony irrelevant and inadmissible. Moreover, there is no case law to support the unique proposition that a trial judge’s advice as to which witness to call is reversible error.

Because we have found that Exantus’ testimony would have constituted inadmissible hearsay, we do not reach the issue of whether Exantus’ testimony was newly discovered evidence and whether it would have changed the outcome of the trial.

The defendant next argues that the trial court erred in denying the defendant’s motion for a continuance to secure witnesses to testify in support of his post-trial motion. We disagree.

The granting of a continuance is a discretionary matter, and a trial judge’s decision will only be reversed if he abused his discretion. (People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838.) The denial of a continuance is not an abuse of discretion when there is no reasonable expectation that the witness will be available in the foreseeable future (People v. Curtis (1986), 141 Ill. App. 3d 827, 491 N.E.2d 134), or when the missing witness’ testimony is merely cumulative (People v. Eure (1986), 140 Ill. App. 3d 387, 488 N.E.2d 1267).

In the instant case, the trial judge gave three reasons for denying the motion for a continuance. First, he found that the new evidence that Thomas was fired for theft could have been found previously with due diligence. Second, defense counsel had tried before to locate King. The fact that King’s sister’s address had become known did not make it likely King could be found. Finally, the trial judge noted that the hearing had already been continued several times, and there was no indication that King’s testimony was even of value.

Based on our review of the record, we agree with the trial court’s findings. We therefore hold that the denial of the motion for a continuance was not an abuse of discretion.

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

Affirmed.

McCUSKEY, P.J., and SLATER, J., concur.


author: JUSTICE BARRY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID GILDON, Defendant-Appellant.
    Third District
    No. 3—91—0968
    Opinion filed January 6, 1993.
    Peter A. Carusona, of State Appellate Defender’s Office, of Ottawa, for appellant.

      Edward Burmila, Jr., State’s Attorney, of Joliet (John X. Breslin and Gary E Gnidovec, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE BARRY

delivered the opinion of the court:

The defendant, David Gildon, was convicted of burglary (Ill. Rev. Stat. 1991, ch. 38, par. 19—1). He was sentenced to eight years’ imprisonment. The defendant appeals his sentence.

The record reveals that Gildon and two codefendants, Walter Boy-kin and Ronald Jones, were charged with burglary. The charges stemmed from an incident occurring on June 28, 1991. On that date, at 2:30 a.m., some men were seen carrying something away from the garage of the victim, John Atkinson. The men were then seen entering a car, which subsequently drove away. Shortly thereafter, the police stopped the car in which Boykin, Jones, and Gildon had been riding. Inside the car, police found several tools which were identified as having been taken from Atkinson’s garage. Based upon this evidence, the defendants were all found guilty of burglary.

Jones was sentenced to 48 months’ probation conditioned upon serving six months in the county jail. Boykin was likewise sentenced to 48 months’ probation, his being conditioned upon serving only 22 days in the county jail. Gildon, on the other hand, was sentenced to an extended term of eight years’ imprisonment.

On appeal, Gildon first contends that his sentence was grossly disparate to the sentences of probation imposed on his codefendants. He also contends that his sentence was excessive. Since we agree that Gildon’s sentence was disparate to those of his codefendants, we vacate on that ground and do not reach the issue of whether his sentence was excessive.

We begin by noting that it is not the function of a reviewing court to serve as a sentencing court, and, absent an abuse of discretion, a sentence will not be disturbed on review. However, fundamental fairness and respect for the law require that similarly situated defendants should not receive grossly disparate sentences. A disparate sentence may be supported by a more serious criminal record or greater participation in the offense. People v. Milton (1989), 182 Ill. App. 3d 1082, 538 N.E.2d 1227.

In the instant case, the defendants were approximately the same age. Additionally, they participated equally in the offense. However, as the State correctly points out, the defendants did have different prior criminal records. Gildon had a prior conviction for burglary. Boy-kin had a prior conviction for retail theft. Jones had no prior convictions, but he committed the instant offense while on bond for a robbery charge that was still pending at the time he was sentenced for the instant offense.

The State contends that the differences in the defendants’ criminal records justify the trial court’s imposition of different sentences for each of the defendants.

We agree with the State that the differences between the defendants’ records support different sentences. However, we find that the disparity between the sentences imposed was too great. (See People v. Milton (1989), 182 Ill. App. 3d 1082, 538 N.E.2d 1227; People v. Henne (1973), 10 Ill. App. 3d 179, 293 N.E.2d 172.) Accordingly, we vacate the defendant’s sentence and remand this cause for a new sentencing hearing.

Sentence vacated and cause remanded.

STOUDER and McCUSKEY, JJ., concur.


author: JUSTICE BRESLIN

text:
    ROBERT L. MOODY, Plaintiff-Appellee and Cross-Appellant, v. FIRST NATIONAL BANK OF MOLINE, Defendant-Appellant and Cross-Appellee (Davenport Bank and Trust Company, Defendant).
    Third District
    No. 3—92—0472
    Opinion filed February 2, 1993.
    Rehearing denied March 5, 1993.

      Daniel Churchill, of Churchill & Churchill, of Moline, for appellant.
    Franklin S. Wallace and David L. Cunningham, both of Winstein, Kavensky & Wallace, of Rock Island, for appellee.
   JUSTICE BRESLIN

delivered the opinion of the court:

The plaintiff, Robert L. Moody, brought this conversion action against the defendant, First National Bank of Moline (Bank), to recover $23,155.45 for the face amount of a forged check. The Bank claimed that the action was barred by the doctrines of laches and estoppel, and also that it was entitled to a $7,718.48 setoff. Thereafter, the plaintiff filed a motion for sanctions against the Bank’s attorneys. On March 5, 1992, the trial court denied the Bank’s claim for a setoff and entered judgment in favor of the plaintiff for $23,155.45. The court also denied the plaintiff’s motion for sanctions. The court further ordered that the Bank pay the plaintiff post-judgment statutory interest from the date of its order. The Bank appeals the court’s denial of its setoff claim, and the plaintiff cross-appeals the court’s denial of prejudgment interest and sanctions. We affirm.

The record shows that the plaintiff retained attorney Joseph Trujillo to represent him regarding an Iowa workers’ compensation claim. Attorney Trujillo negotiated a settlement of that claim on April 7, 1987, in which the plaintiff’s former employer, Aluminum Company of America (Alcoa), agreed to pay the plaintiff $23,155.45, which included 10% interest per year from the date of the injury.

Attorney Trujillo testified at the trial on the plaintiff’s complaint that at the time the plaintiff executed the settlement agreement, attorney Trujillo had already received a check for $23,155.45 from Alcoa made payable to the plaintiff, but that he did not tell this to the plaintiff. Trujillo stated that he forged the plaintiff’s signature as an endorsement on the above-mentioned check, affixed his own signature, cashed it at defendant First National Bank of Moline, and deposited the check into his law office trust account at the Bank.

Trujillo further testified that he had negotiated a one-third contingent fee arrangement with the plaintiff. He noted that he had explained to the plaintiff that he would take his one-third fee at the time the settlement check was ultimately issued and that the plaintiff would receive the balance. Trujillo admitted, however, that the Iowa Workers’ Compensation Commission did not enter any orders in connection with the case since he did not handle the case through the Commission. Trujillo stated that throughout his representation of the plaintiff he was licensed to practice law in the State of Illinois, but that he subsequently surrendered his licence to the Illinois Supreme Court for cancellation. Thereafter, he was convicted in Rock Island County on an unrelated theft charge and sentenced to three years’ imprisonment.

The plaintiff testified that attorney Trujillo repeatedly lied to him about the status of his check and that he relied on those misrepresentations. He acknowledged that he had reached an agreement with Trujillo that the attorney would take his fee from the check to be issued by Alcoa. The plaintiff stated that he first contacted the defendant Bank about the missing check in June of 1989. He noted that he had not done so sooner because he relied on his attorney’s representations about the check. Thereafter, the plaintiff contacted the Bank’s attorney, who told the plaintiff that the status of the check was “none of his business.” On August 24, 1989, the plaintiff’s new attorney sent the Bank a letter detailing the factual background of the forgery incident. The Bank subsequently made no offer to make payment on the check or any part thereof, relying on the doctrines of laches and estoppel for its refusal to pay.

On December 18, 1989, the plaintiff filed suit against the collecting bank, First National Bank of Moline, and the drawee bank, Davenport Bank and Trust Co. (Davenport). Among other things, First National Bank of Moline asserted in its answer that it was entitled to a setoff of $7,718.48 as the sum attorney Trujillo was entitled to retain as his one-third contingent fee in the case. Defendant Davenport then filed a cross-claim against defendant First National Bank of Moline based on the affirmative defense of ratification of proceeds, which was subsequently granted. The plaintiff then filed a motion for sanctions against the attorneys for defendant First National Bank of Moline.

The trial court entered judgment for the plaintiff against First National Bank of Moline for $23,155.45, with post-judgment statutory interest accruing from the date of its order. The court also denied the Bank’s claim for a setoff. Thereafter, the Bank filed its notice of appeal and the plaintiff cross-appealed. Davenport is not a party to this appeal.

On appeal, the Bank contests only ithe issue that it was entitled to a setoff for funds due attorney Trujillo.

Section 3 — 419 of the Uniform Commercial Code — Commercial Paper formerly provided that an instrument is converted when it is paid on a forged endorsement. (Ill. Rev. Stat. 1989, ch. 26, par. 3—419(1).) It further provided:

“In an action against a drawee *** the measure of the drawee’s liability is the face amount of the instrument. In any other action *** the measure of liability is presumed, to be the face amount of the instrument.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 26, par. 3—419(2).)

It has been noted that section 3 — 419(2)

“adopts the rule generally applied to the conversion of negotiable instruments, that the obligation of any party on the instrument is presumed, in the sense that the term is defined in this Act *** to be worth its face value. Evidence is admissible to show that for any reason such as insolvency or the existence of a defense the obligation is in fact worth less, or even that it is without value. In the case of the drawee, however, the presumption is replaced by a rule of absolute liability.” Ill. Ann. Stat., ch. 26, par. 3—419(2), Uniform Commercial Code Comment, at 329 (Smith-Hurd 1963).

It was undisputed that the Bank here was a collecting bank and not a drawee. Thus, the Bank was entitled to rebut the presumption that the measure of liability was the face amount of the instrument. Nonetheless, we find that the trial court properly refused to allow the Bank a setoff for a contingent fee allegedly due attorney Trujillo. Section 86.39 of the code of Iowa provides that “[a]ll fees or claims for legal *** services *** are subject to the approval of the industrial commissioner.” (Iowa Code §86.39 (1991).) Illinois has a similar provision (see Ill. Rev. Stat. 1991, ch. 48, par. 138.16a(C)). Here, it was undisputed that attorney Trujillo failed to have his claim for fees approved by the Iowa Industrial Commissioner. Thus, the instant attorney fee was unenforceable under Iowa law as it would be under Illinois law. We therefore find that the Bank did not overcome the presumption that it was liable for the face amount of the instrument. Accordingly, the trial court properly found that the Bank was not entitled to a setoff.

Turning to the plaintiff’s cross-appeal, we note that he first argues that the trial court erred in refusing to order the Bank to pay the plaintiff prejudgment interest from the date of the forgery.

Under Illinois law, prejudgment interest is only recoverable on the basis of a contract or statute. (First Arlington National Bank v. Stathis (1983), 115 Ill. App. 3d 403, 450 N.E.2d 833.) Section 2 of the Interest Act provides:

“Creditors shall be allowed to receive at the rate of five (5) per centum per annum for all moneys after they become due on any bond, bill, promissory note, or other instrument of writing; on money lent or advanced for the use of another; on money due on the settlement of account from the day of liquidating accounts between the parties and ascertaining the balance^] on money received to the use of another and retained without the owner’s knowledge; and on money withheld by an unreasonable and vexatious delay of payment.” (Ill. Rev. Stat. 1991, ch. 17, par. 6402.)

To recover prejudgment interest based on section 2 of the Interest Act, there must be a fixed and easily calculated amount due from a debtor-creditor relationship that has come into existence by virtue of a written instrument. (Tomaso v. Plum Grove Bank (1985), 130 Ill. App. 3d 18, 473 N.E.2d 588.) A forged check is not an “instrument” setting up a debtor-creditor relationship within the meaning of the Act. Wilder Binding Co. v. Oak Park Trust & Savings Bank (1988), 173 Ill. App. 3d 34, 527 N.E.2d 354.

We find the rationale of Wilder Binding Co. and Tomaso dis-positive of the outcome here. In the instant case, the plaintiff failed to establish the existence of a debtor-creditor relationship. The forged check did not create a debtor-creditor relationship between the plaintiff and the Bank. Accordingly, we find that the trial court did not err in refusing to award prejudgment interest.

The plaintiff next argues that the trial court erred in refusing to grant his motion for sanctions.

Supreme Court Rule 137 provides that an attorney’s signature on a pleading constitutes a certificate by him that he has read the pleading and that it is well grounded in fact; it is warranted by existing law or a good-faith extension or reversal thereof; and it is not designed to harass or cause unnecessary delay or expense. (134 Ill. 2d R. 137.) It is not sanctionable conduct under Supreme Court Rule 137 to pursue a claim or defense in good faith and yet fail to prevail on the merits. (Helland v. Helland (1991), 214 Ill. App. 3d 275, 573 N.E.2d 357.) A trial court’s decision to impose sanctions is within its sound discretion, and it will not be disturbed on appeal absent an abuse of that discretion. Bertuli v. Gaull (1991), 215 Ill. App. 3d 603, 574 N.E.2d 1390.

Here, we find that the plaintiff’s sanction argument must be rejected. The Bank had good-faith affirmative defenses based on the doctrines of laches and estoppel. Furthermore, the Bank raised a good-faith argument that it was entitled to a setoff. Accordingly, the trial court properly refused to impose sanctions against the Bank’s attorneys.

For the foregoing reasons, the judgment of the circuit court of Rock Island County is affirmed.

Affirmed.

McCUSKEY, P.J., and SLATER, J., concur.


text:
      In re MARRIAGE OF HARRIET E. THOMAS, Petitioner-Appellee, and MICHAEL THOMAS, Respondent-Appellant.
    Third District
    No. 3—92—0513
    Opinion filed February 2, 1993.
    Michael Null, of Chicago (Reed Lee, of counsel), for appellant.

      Andich & Andich, of Rock Island (David W. Andich, of counsel), and H. Reed Doughty, of Nagle, Harris, Cook, Payson & Doughty, of Davenport, Iowa, for appellee.
   JUSTICE BRESLIN

delivered the opinion of the court:

Respondent, Michael Thomas, appeals from the judgment of the circuit court of Rock Island County concerning the distribution of marital property made pursuant to a dissolution of marriage proceeding begun by petitioner, Harriet Thomas. Specifically, Michael contends that the trial court erred: (1) in finding that he had dissipated marital assets; (2) in valuing the family business; and (3) in awarding the family business exclusively to Harriet. For the reasons stated herein, we affirm the ruling of the circuit court.

The record shows that the parties were married on December 21, 1963. Not long after the marriage began, Michael formed a business known as Thomas Window and Cleaning Service which provided janitorial and office cleaning services. Harriet worked odd jobs at a driving school and post office. The parties had three children, one of whom was still a minor at the time of the dissolution proceeding.

Approximately eight years after Michael formed the janitorial business, it was incorporated as Executive Maintenance Corporation (Executive Maintenance). Michael, as president of the corporation, solicited accounts and supervised the work that was done. Harriet, as secretary, kept the books, ordered supplies and handled the paperwork involved in the business. Harriet owned 16 shares of corporate stock, and Michael owned 14 shares.

In the late 1980’s the parties began to experience a breakdown of their marital relationship. As the marital relationship disintegrated, it became increasingly difficult for them to adequately perform their roles in the family business.

Harriet testified that she felt she could no longer work at the office when Michael was present. When Michael arrived at the office, she would leave, although she would occasionally take work home or return to the office later in the evening when Michael was not present. Harriet further testified that Michael stopped soliciting new accounts for Executive Maintenance and stopped supervising the work that was being done. Clients began to complain about the quality of the services they were receiving, and the corporation began to experience problems with making payroll and paying debts in a timely fashion.

Michael testified that he became concerned about the welfare of the business. He had the mail forwarded to his home rather than to the Executive Maintenance office. He took the checkbooks and checks from the office so Harriet could no longer write checks on the corporate account. Harriet testified that Michael sold assets of the corporation without consulting her or accounting to the corporation for the sale proceeds. She further testified that when she inquired about these matters, Michael told her that it was none of her business.

Several clients of Executive Maintenance testified that Michael approached them personally and told them that he and his wife were going through a divorce. He led these clients to believe that Executive Maintenance would cease to exist and then informed them that he would be forming a new company called J’s Consolidated Services (J’s) which could take over serving their office cleaning needs. He went so far as to enter into contracts with these clients on behalf of J’s Consolidated Services.

Two accountants testified on behalf of Michael as to the value of Executive Maintenance. The first accountant testified that on December 31, 1989, the corporation was worth $128,000. The second testified that on July 30, 1990, the corporation’s value had dropped to $74,756.

On August 8, 1990, a judgment of dissolution of marriage was entered. As to the issue of property division, the trial judge found that Michael had dissipated marital property to the extent of 50% of the value of Executive Maintenance. He further found that Executive Maintenance was worth $74,756 and awarded the business solely to Harriet.

Michael first argues on appeal that the trial court erred in finding that he dissipated marital assets.

Section 503(d) of the Illinois Marriage and Dissolution of Marriage Act requires that the trial court divide the marital property in just proportions taking into consideration the relevant factors including the extent to which any party has dissipated the value of the marital assets. (Ill. Rev. Stat. 1991, ch. 40, par. 503(d).) Dissipation of marital assets occurs when a spouse uses marital property for his or her own benefit for a purpose unrelated to the marriage while the marriage is breaking down. (In re Marriage of Bauer (1985), 138 Ill. App. 3d 379, 485 N.E.2d 1318.) A spouse may dissipate marital assets even though he or she derives no personal benefit from the dissipation. (In re Marriage of Petrovich (1987), 154 Ill. App. 3d 881, 507 N.E.2d 207; In re Marriage of Smith (1984), 128 Ill. App. 3d 1017, 471 N.E.2d 1008.) A finding of dissipation will not be reversed absent an abuse of discretion. Smith, 128 Ill. App. 3d 1017, 471 N.E.2d 1008.

In this case, Michael may not have gained a personal benefit from his acts against Executive Maintenance, but he did cause the corporation to become less profitable either through his inattention to the quality of service the corporation was supplying its clients or through his failure to solicit additional clients or through his outright stealing of clients for his new business. In In re Marriage of Siegel (1984), 123 Ill. App. 3d 710, 463 N.E.2d 773, the court found a dissipation of marital property when one party allowed the marital home to be foreclosed upon and sold at a judicial sale although that party could have easily prevented the sale. Causing or allowing the devaluation of the marital business is no less dissipation than allowing the devaluation of the marital home. Therefore, we find no abuse of discretion in the trial court’s ruling that Michael had dissipated marital property.

Michael next argues that the trial court erred regarding its valuation of the marital business. We disagree.

Despite the fact that a closely held corporation is without established market value, it nevertheless possesses an ascertainable value with respect to the division of marital property. (In re Marriage of Bauer (1985), 138 Ill. App. 3d 379, 485 N.E.2d 1318.) The value of such a marital asset must be determined at the date of dissolution. (In re Marriage of Brooks (1985), 138 Ill. App. 3d 252, 486 N.E.2d 267.) A party cannot benefit on review by its failure to introduce evidence of the value of marital property at trial. (In re Marriage of Gluszek (1988), 168 Ill. App. 3d 987, 523 N.E.2d 126.) A trial court’s determination of the value of marital property will not be disturbed on appeal unless it was an abuse of discretion such that no reasonable person could agree with the decision reached by the court. Gluszek, 168 Ill. App. 3d 987, 523 N.E.2d 126.

In the case at bar, the trial court valued the business based on the testimony of Michael’s accountant, who testified as to the value of the business as of the date of the dissolution. Having presented such evidence, Michael cannot now complain that the trial court erred in accepting it. Furthermore, we find that Michael had ample opportunity to present evidence concerning any goodwill associated with the business. This he failed to do. He cannot now claim this as the trial court’s error. (See In re Marriage of Gluszek (1988), 168 Ill. App. 3d 987, 523 N.E.2d 126.) Accordingly, we find it unnecessary to decide whether the trial court improperly failed to take into account any goodwill of the business.

Lastly, Michael claims that the trial court erred in awarding the business exclusively to Harriet.

It is well settled that fair and equitable division of marital property under the Act does not require that the marital estate be split in equal proportions. (In re Marriage of McMahon (1980), 82 Ill. App. 3d 1126, 403 N.E.2d 730.) Rather, the Act requires only that the trial court divide the marital property in just proportions. (In re Marriage of Carney (1984), 122 Ill. App. 3d 705, 462 N.E.2d 596; see also In re Marriage of Murphy (1983), 117 Ill. App. 3d 649, 453 N.E.2d 113 (where this court found a 2-1 property ratio equitable).) The court is to consider all relevant factors which, in this case, include: the duration of the marriage; the value of the property set apart to each spouse; the relevant economic circumstances of each spouse; the amounts and sources of each spouse’s income; the age, occupation, vocational skills, employability, and needs of each party; whether the apportionment is in lieu of or in addition to maintenance; and the reasonable opportunity for each spouse for future acquisition of assets and income. (Ill. Rev. Stat. 1991, ch. 40, par. 503(d).) Again, a reviewing court will not disturb the trial court’s apportionment of property absent a showing of an abuse of discretion (In re Marriage of Wentink (1984), 132 Ill. App. 3d 71, 476 N.E.2d 1109) such that no reasonable person would take the "view adopted by the court (In re Marriage of Brooks (1985), 138 Ill. App. 3d 252, 486 N.E.2d 267).

Applying the above-mentioned principles to the present case, we find no abuse of discretion. We find nothing inequitable about the trial court’s division of marital property. Harriet’s share of the marital property amounted to $173,967; Michael’s share was worth $95,336. Had Michael not allowed the business to lose half its value and had he been awarded that same half, his share would have been $170,092, nearly half the value of all the marital property. In addition, this court takes notice that this was a 26-year marriage, that no maintenance or child support was awarded to Harriet and that Michael has sources of income other than Executive Maintenance available to him while Harriet does not have any such other sources of income.

Further, it has been held that when the property at issue is a small business and the parties have shown that they cannot work together, it is better to award the business solely to one party or the other. (In re Marriage of Sales (1982), 106 Ill. App. 3d 378, 436 N.E.2d 23.) In this case, Michael and Harriet have shown that they cannot work together and Michael has dissipated the half of the business which might otherwise have been his. Therefore, we find no abuse of discretion in the trial court’s decision to award the business exclusively to Harriet.

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

Affirmed.

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


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RUSSELL MILLS et al., Defendants-Appellants.
    Third District
    Nos. 3—92—0174 through 3—92—0176 cons.
    Opinion filed January 14, 1993.
    Rehearing denied February 23, 1993.

      Janet Gandy Fowler, of State Appellate Defender’s Office, of Mt. Vernon, for appellants.
    Marc Bernabei, State’s Attorney, of Princeton (John X. Breslin and Lawrence Michael Kaschak, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE STOUDER

delivered the opinion of the court:

The defendants, Russell Mills, Elmer R. Bays, and Clifford Messer, were convicted of unlawful possession of cannabis and unlawful manufacture of cannabis (Ill. Rev. Stat. 1991, ch. 56½, pars. 704(e), 705(e)). They were each sentenced to three years’ probation and six months in jail for the unlawful manufacture conviction, and a concurrent term of two years’ imprisonment for the unlawful possession conviction. The defendants appeal.

The record reveals that on October 9, 1991, police observed a gray Cadillac and a U-Haul truck parked on the side of the road. Bays and Messer were subsequently seen going into a field where wild cannabis was known to grow. A short while later the men returned to their vehicles carrying trash bags full of cannabis. During this time, Mills waited in the driver’s seat of the Cadillac. Police subsequently stopped the defendants’ vehicles and found trash bags containing over 100 pounds of cannabis. Following a bench trial, the defendants were convicted of both unlawful manufacture of cannabis and unlawful possession of cannabis.

At the sentencing hearing, the defendants admitted their participation and expressed remorse. The trial court recognized that the defendants were essentially first offenders, but took note of the large quantity of cannabis involved. The court then sentenced each defendant to three years' probation and six months in jail for the unlawful manufacture conviction, and a concurrent term of two years’ imprisonment for the unlawful possession conviction. Additionally, the parties stipulated to a fine and court costs for each defendant in the amount of $7,500.

On appeal, the defendants contend that their convictions for unlawful manufacture of cannabis and unlawful possession of cannabis cannot both stand. As a basis for this contention, the defendants argue that both convictions stem from a single transaction and that unlawful possession of cannabis is a lesser-included offense of unlawful manufacture of cannabis.

We initially note that we are not persuaded by the State’s arguments that the manufacture and possession charges stemmed from different acts. The possession offense occurred simultaneously to and as a part of the manufacturing offense. For the same reason, the defendants are correct in their assertion that unlawful possession of cannabis is an included offense of unlawful manufacture of cannabis. (People v. Freeman (1984), 121 Ill. App. 3d 1023, 460 N.E.2d 125; see People v. Lewis (1980), 83 Ill. 2d 296, 415 N.E.2d 319.) Accordingly, we vacate the defendants’ unlawful possession of cannabis convictions since they are the lesser offenses. See People v. Freeman (1984), 121 Ill. App. 3d 1023, 460 N.E.2d 125; People v. Duszkewycz (1963), 27 Ill. 2d 257, 189 N.E.2d 299.

The defendants next contend that their sentences for unlawful possession of cannabis constituted an abuse of discretion on the part of the trial court. We find that since we have vacated the defendants’ convictions for that offense, this contention is rendered moot.

The defendants’ final argument on appeal is that they are entitled to a $5-per-day credit toward their fine for the three days they spent in custody prior to sentencing. (Ill. Rev. Stat. 1991, ch. 38, par. 110—14.) The State disagrees and argues that this issue has been waived because the amount of the fine was stipulated to at the sentencing hearing.

Our review of the record discloses that at the sentencing hearing the parties stipulated to the amount of the fine and costs. However, that stipulation made no reference to the statutory credits now at issue. Accordingly, we are unwilling to say that the defendants’ stipulation constituted a waiver of those credits. We therefore hold that the defendants are entitled to a $5-per-day credit for the time spent in custody prior to sentencing.

The judgment of the circuit court of Bureau County is affirmed in part, vacated in part, and remanded for entry of an order reflecting the aforementioned credits.

Affirmed in part; vacated in part and remanded.

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


author: PRESIDING JUSTICE McCUSKEY

text:
    ROBERT R. LATIMER et al., Plaintiffs-Appellees, v. GRUNDY COUNTY NATIONAL BANK, as Trustee, et al., Defendants-Appellants.
    Third District
    No. 3—92—0356
    Opinion filed January 7, 1993.
    Joseph V. Moschetti, of Coal City, for appellants.
    Jeffrey L. Fisher, of Wilmington, for appellees.
   PRESIDING JUSTICE McCUSKEY

delivered the opinion of the court:

The vendor in a commercial installment land contract appeals from a judgment in a declaratory action which allowed the purchasers to prepay the contract indebtedness in full. In a case of first impression in Illinois, we apply the rule of the majority of jurisdictions, which do not recognize a right of prepayment in the absence of statute or agreement. However, we conclude that the contract at issue expressly allowed prepayment. Therefore, we affirm.

The plaintiffs, Robert R. Latimer and Linda I. Latimer, entered into an installment contract for deed for the purchase of certain commercial real property. Title to the property was held in trust by the defendant-vendor, Grundy County National Bank, under the terms of a trust agreement. Defendant, Fatmeh K. File, was the settlor and beneficiary of the trust.

The contract called for a down payment and a series of monthly installments payable over a 15-year period at 10% interest. The contract further provided:

“The first such monthly payment shall be due and payable on July 1, 1988, with a like amount due and payable on the 1st day of each month thereafter, except that the entire unpaid balance, with any accrued and unpaid interest^] shall be due and payable on June 1, 2003, if not sooner paid.” (Emphasis added.)

The contract was drafted by the vendor’s attorney.

Three years into the contract, the purchasers insisted on prepaying the principal, with interest only to the date of prepayment. The vendor refused to accept the tender of payment. The purchasers then brought a declaratory action to compel the vendor to accept payment in satisfaction of the balance due under the contract. Following a hearing, the circuit court of Will County entered the declaration sought by the purchasers. The court found that the contract language “if not sooner paid” evidenced the parties’ intent to allow the option of prepayment. We agree.

The long-standing majority rule is that a purchaser under an installment land contract who promises to pay installments at specified times or at a specified date cannot compel a vendor to accept prepayment, absent statutory authority or contractual language reserving to the purchaser an option or right to accelerate payments. Promenade Towers Mutual Housing Corp. v. Metropolitan Life Insurance Co. (1991), 324 Md. 588, 592, 597 A.2d 1377, 1379-80; Carpenter v. Winn (1977), 39 Colo. App. 238, 239, 566 P.2d 370, 371; Annot., 17 A.L.R. 866 (1922).

A few States have abrogated the majority common law rule in favor of a general presumption of prepayment. Hatcher v. Rose (1991), 329 N.C. 626, 629, 407 S.E.2d 172, 177 (inferring the mortgagor’s right to prepay from several statutes, a State real property treatise, and a form deed of trust promulgated by the State bar association); Skyles v. Burge (Mo. App. 1990), 789 S.W.2d 116, 119-20 (concluding that a statute on prepayment penalties established a maximum allowable prepayment penalty and granted the right to prepay without penalty after five years); Mahoney v. Furches (1983), 503 Pa. 60, 66, 468 A.2d 458, 461 (concluding that the majority rule restrains the free alienability of land).

Philosophical justifications of mutuality and freedom of contract support the majority rule. First, courts have reasoned that the debtor should have no right to prepay if the creditor has no reciprocal right to accelerate or call the loan. (E.g., Promenade Towers, 324 Md. at 592, 597 A.2d at 1385.) Second, allowing prepayment where that right has not been reserved works an unprincipled contract law result by condoning a unilateral change in the terms of the contract. (Arthur v. Burkich (1987), 131 A.D.2d 105, 106, 520 N.Y.S.2d 638, 639.)

“The time of payment fixed by the terms of a pecuniary obligation is a material provision, and each party has the right to stand on the letter of the agreement and perform accordingly.” Peryer v. Pennock (1921), 95 Vt. 313, 315-16, 115 A. 105, 105.

Also, installment payment provisions are not made solely as an ac- ‘ commodation to the purchaser, but may also be made for the vendor’s benefit. A mortgage or other promissory note is an investment instrument designed to secure for the holder a regular flow of income over a definite period of time at a predictable rate of return. (Skyles, 789 S.W.2d at 119.) To allow prepayment absent agreement would impose economic sacrifices on a mortgagee or note holder, including an increased tax burden and unanticipated costs occasioned by the need to reinvest the principal. (Arthur, 131 A.D.2d at 106, 520 N.Y.S.2d at 639.) Finally, abrogation of the majority rule to allow prepayment is argued primarily in connection with residential mortgages. Here the parties entered into a commercial transaction, where investment factors are present and the parties are in equivalent bargaining positions. Arthur, 131 A.D.2d at 107, 520 N.Y.S.2d at 640.

We hold, then, that a purchaser under an installment loan agreement payable at a fixed date or dates in the future does not have a right to prepay, absent statutory authority or provision for prepayment in the contract. The parties have not cited any Illinois statutes which would resolve this issue, and we have found none.

In the case before us, we conclude from an examination of the installment loan contract that the parties contemplated prepayment of principal before maturity of the debt. We find that the phrase “if not sooner paid” has independent significance and provides for prepayment of the principal.

We are unpersuaded by the vendor’s reliance on Kruse v. Planer (Minn. 1979), 288 N.W.2d 12, which we believe was wrongly decided. In Kruse the purchaser under a contract for deed sought a declaration that the contract included a prepayment privilege. The contract provided a date for payment of the balance due “if not sooner paid.” The supreme court of Minnesota followed the majority rule, but held that the contract language “if not sooner paid” did not confer on the purchaser a right to prepay. The Minnesota Supreme Court reasoned that the language only recognized the possibility of accelerated payment by subsequent mutual agreement of the parties. The court determined that the words would only apply if the parties later modified the contract to allow for prepayment. (Kruse, 288 N.W.2d at 14-15.) We find the Kruse reasoning peculiar and strained. Certainly the parties could subsequently modify the contract to allow prepayment without having to rely on contract language purportedly included only to allow that possibility.

Our interpretation of the instant contract is supported in part by the analysis of the supreme court of North Carolina in Hatcher (329 N.C. 626, 407 S.E.2d 172). The court in Hatcher determined that the common law of North Carolina provided for a right of prepayment where the note was silent. Although the promissory note was silent as to a right of prepayment, the deed of trust securing the note provided: “The final due date for payment of said promissory note, if not sooner paid, is July 1, 2003.” (Emphasis added.) (Hatcher, 329 N.C. at 627, 407 S.E.2d at 173.) Recognizing that Kruse held to the contrary, the North Carolina Supreme Court acknowledged that the deed of trust language “if not sooner paid” “at least allud[ed] to the fact that prepayment was possible.” Hatcher, 329 N.C. at 633, 407 S.E.2d at 176.

After analyzing cases from various jurisdictions, we hold there is an express prepayment right in an installment contract which contains the language “if not sooner paid.” This language reserves to the purchaser an option or right to accelerate payment. Accordingly, we conclude that the trial court properly ordered the vendor to accept payment in satisfaction of the principal balance due under the contract, with interest to the date of tender.

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

Affirmed.

BARRY and STOUDER, JJ., concur.


text:
    ENVIRITE CORPORATION, Appellant, v. THE POLLUTION CONTROL BOARD et al., Appellees.
    Third District
    No. 3—92—0202
    Opinion filed January 8, 1993.
    Fred C. Prillaman, of Mohan, Alewelt, Prillaman & Adami, of Springfield (Stephen F. Hedinger, of counsel), for petitioner.

      Roland W. Burris, Attorney General, of Springfield (Alison E. O’Hara, Assistant Attorney General, of Chicago, of counsel), for respondents Pollution Control Board and Illinois Environmental Protection Agency.
    Robin R. Lunn and Michael O’Neil, both of Keck, Mahin & Cate, of Chicago, and Brian J. Meginnes, of Keck, Mahin & Cate, of Peoria, for respondent Peoria Disposal Company.
   JUSTICE BARRY

delivered the opinion of the court:

Complainant-appellant Envirite Corporation (Envirite) is the operator of a hazardous waste treatment facility in Cook County, Illinois. One of the respondents-appellees is Peoria Disposal Company (PDC), a company that operates a hazardous waste treatment facility in Peoria County. On August 23, 1991, Envirite filed its complaint against PDC and the Illinois Environmental Protection Agency (the Agency) with the Pollution Control Board (the Board) alleging violations of the Illinois Environmental Protection Act (IEPA) (Ill. Rev. Stat. 1989, ch. 111½, par. 1001 et seq.). On December 19, 1991, the Board entered its decision granting summary judgment to PDC and dismissing plaintiff’s cause of action against the Agency. Plaintiff brings this appeal directly to the appellate court pursuant to Supreme Court Rule 335 (107 Ill. 2d R. 335) and section 41 of the IEPA (Ill. Rev. Stat. 1989, ch. 111½, par. 1041). For reasons that follow, we affirm in part, reverse in part and remand this cause for further consideration.

According to the complaint in the record before us, both Envirite and PDC accept for treatment various hazardous wastes which are assigned codes by the United States Environmental Protection Act. For purposes of this appeal, we need identify only one such waste — F006— which is described as “wastewater treatment sludges from electroplating operations” containing cadmium, chromium and nickel. Envirite alleges, and it is not contested, that its treatment process is capable of neutralizing the F006 waste so as to render it nonhazardous, or “delisted,” for purposes of the IEPA, before it is deposited in a nonhazardous waste landfill. By contrast, PDC alleges that its treatment process combines F006 wastes with other wastes and subjects them to a proprietary chemical stabilization process resulting in an end-waste that remains a “listed” F006 hazardous waste product, but for which the ability to leach is substantially inhibited. PDC has obtained authorization from the Illinois Environmental Protection Agency (the Agency) to dispose of its “stabilized” residue in its own hazardous waste landfill until November 4, 1997. This authorization is required pursuant to section 39(h) of the IEPA for “generators” of hazardous waste. Ill. Rev. Stat. 1989, ch. 111½, par. 1039(h).

Production Plated Plastics is a Michigan industrial company which produces F006 hazardous waste in its electroplating operation. The company has not obtained section 39(h) authorization from the Agency. The complaint alleges that PDC has been accepting Production Plated Plastics’ hazardous waste for treatment and disposal since March 1989. Envirite charges that PDC's acceptance, treatment and disposal of Production Plated Plastics’ out-of-State waste violates section 21(e) of the IEPA (Ill. Rev. Stat. 1989, ch. 111½, par. 1021(e)) because of Production Plated Plastics’ failure to first obtain section 39(h) authorization. Envirite alleges that since June 15, 1991, it has made various requests of the Agency to take action against PDC for violations of the IEPA, but that the Agency has not issued a formal complaint against PDC as allegedly required by sections 30 and 31(a) of the IEPA (Ill. Rev. Stat. 1989, ch. 111½, pars. 1030, 1031(a)).

Envirite’s complaint against PDC and the Agency was filed before the Pollution Control Board on grounds that PDC was guilty of disposing of hazardous wastes in its landfill in violation of sections 39(h) and 21(e) of the IEPA, and that the Agency was guilty of administrative nonfeasance in violation of sections 30 and 31(a) of the IEPA by failing to abate PDC’s practice. Both PDC and the Agency moved for dismissal or for summary judgment and filed supporting documentation. Envirite responded to the motions and moved for summary judgment in its favor. PDC and the Agency filed a consolidated response to Envirite’s motion for summary relief. Envirite then moved to strike or to reply to PDC and the Agency’s joint response.

After all parties had briefed their positions, the Pollution Control Board (Board) issued its decision on all pending matters. The Board denied Envirite’s motion to strike or to reply to the joint response of the PDC and the Agency, granted the Agency’s motion to dismiss, denied PDC’s motion to dismiss, granted PDC’s motion for summary judgment, and denied Envirite’s motion for summary judgment. Specifically, the Board found that the IEPA does not permit the Board to direct the Agency’s course of conduct; that “based upon these undisputed facts,” Production Plated Plastics is not a “generator” for purposes of section 39(h) of the IEPA; and that as a matter of law PDC is both a “generator” and the owner/operator of its disposal site for purposes of section 39(h).

In this appeal, Envirite takes issue with: (1) the Board’s holding that Production Plated Plastics and other hazardous waste producers/ customers of PDC’s services are not required to obtain section 39(h) authorization for disposal of its hazardous waste in Illinois; (2) the Board’s ruling that the Agency is not subject to enforcement proceedings before the Board; and (3) the Board’s denial of Envirite’s motion to reply to the joint response of the Agency and PDC to Envirite’s motion for summary judgment.

Section 39(h) of the IEPA provides:

“Commencing January 1, 1987, a hazardous waste stream may not be deposited in a permitted hazardous waste site unless specific authorization is obtained from the Agency by the generator and the disposal site owner and operator for the deposit of that specific hazardous waste stream. The Agency may grant specific authorization for disposal of hazardous waste streams only after the generator has reasonably demonstrated that, considering technological feasibility and economic reasonableness, the hazardous waste cannot be reasonably recycled *** so as to neutralize the hazardous waste and render it nonhazardous. In granting authorization under this Section, the Agency may impose such conditions as may be necessary to accomplish the purposes of the Act and are consistent with this Act and regulations promulgated by the Board hereunder. If the Agency refuses to grant authorization under this Section, the applicant may appeal as if the Agency refused to grant a permit, pursuant to the provisions of subsection (a) of section 40 of this Act.” (Ill. Rev. Stat. 1989, ch. 111½, par. 1039(h).)

The Act defines “generator” as “any person whose act or process produces hazardous waste.” Ill. Rev. Stat. 1989, ch. 111½, par. 1003.12.

PDC, the Agency and the Board all reason that the original producers of hazardous waste are not “generators" as that term is used in the Act because of PDC’s intervening treatment of its customers’ hazardous waste prior to depositing it in PDC’s landfill. Thus, these parties reason, since it is only PDC, the treatment facility, which ultimately disposes of the material in a waste site, PDC is the sole “generator” of such hazardous waste. Envirite argues that defendants erroneously focus on section 39(h)’s reference to a “hazardous waste stream,” and that their interpretation of the term “generator” defies the clear intent of the Act. We agree.

Because statutory interpretation requires us to ascertain the true intent of the legislature, we find guidance in legislative debates pertaining to the proposed legislation. In this case, Representative Hannig’s remarks at the third reading of Senate Bill 171 on June 17, 1981, are noteworthy:

“This Bill, as amended [S.B. 171, adding subparagraph (h) to section 39 of the Act, and which was passed by both houses and enacted into law effective July 1, 1982, as Public Act 82— 572] provides that the Illinois Environmental Protection Agency can demonstrate that when *** a hazardous waste flow can be recycled, incinerated or chemically or otherwise disposed of, that those wastes could not be buried. Now, the theory behind this concept is that burying hazardous wastes is probably the worst way to dispose of them and in those cases where it can be documented that reasonable methods of disposal are available then burying should be prohibited.” 82d Ill. Gen. Assem., House Proceedings, June 17, 1981, at 50 (statements of Representative Hannig).

Speaking to Senate Bill 171 at a subsequent amendment stage on June 29, 1981, Representative Schraeder stated:

“I want everybody to notice what this actually does by accepting this Motion. It will force anybody that has waste to provide scientific evidence that it cannot be disposed of in any other way. In the House Energy and Environment Committee, the Committee unanimously agreed that that was the wrong approach. The approach ought to be that the Illinois EPA ought to prove *** ... that it could not be .done scientifically and put the burden on the state rather than on industry. So if you want to protect industry’s right to go ahead with these processes that they now have and which occur and cause waste, then I suppose you ought to agree with the Sponsor of this Motion. But if you want to protect the industry in the State of Illinois, then you should vote ‘no’.” (82d Ill. Gen. Assem., House Proceedings, June 29, 1981, at 290 (statements of Representative Schraeder).) (The Amendment was defeated.)

In our opinion, the comments of Representative Hannig and Representative Schraeder demonstrate that the legislature’s primary objective in passing Senate Bill 171 was to encourage hazardous waste producers and/or treatment facilities to develop the technology needed to neutralize hazardous waste to the greatest degree possible and to permit transporting and landfilling of hazardous waste within this State only as a last resort.

Although the legislators participating in the debates do not distinguish between the original generators of hazardous waste and hazardous treatment facilities, it is clear from their remarks that one of the legislators’ concerns was the burden placed upon “industry” generators by the proposed legislation. Had the legislators envisioned imposing the burden of proving inability to further neutralize hazardous waste only on treatment facilities, we believe that they would have referred to the “hazardous waste treatment industry,” rather than “industry” generally. They did not. It is obvious, therefore, that the legislators contemplated that original producers of hazardous waste — ie., “industry” — would be “generators” of “hazardous waste streams” as those terms are used in the statute.

It would appear that by requiring the original industrial producer of hazardous waste to obtain Agency authorization for disposal of its waste in Illinois, the legislative objective of section 39(h) is furthered. That is, the producer is encouraged to seek out a treatment method/ facility capable of neutralizing its hazardous wastes, thereby preserving the integrity of Illinois’ existing hazardous landfills. By contrast, permitting the original producer to bypass this requirement, as the Board has ruled in this case, would seem to defeat the legislative intent of the statute. In our opinion, both Production Plated Plastics and PDC are “generators” for purposes of section 39(h) — Production Plated Plastics because it is an original producer of hazardous waste entering a hazardous landfill in this State, and PDC because it ultimately disposes of hazardous waste in its hazardous waste landfill. Accordingly, we hold that the Board erred in ruling that Production Plated Plastics, as an original producer of F006 hazardous waste destined for deposit in an Illinois hazardous waste landfill, is not a “generator” that is required to obtain section 39(h) Agency authorization for disposal of its hazardous waste by PDC.

Next, Envirite argues that the Board erred in ruling that the Agency is not subject to an enforcement action before the Pollution Control Board. Envirite’s action 'was filed against the Agency pursuant to section 31(b) of the IEPA. That section provides, in relevant part:

“Any person may file with the Board a complaint *** against any person allegedly violating this Act or any rule or regulation thereunder or any permit or term or condition thereof. The complainant shall immediately serve a copy of such complaint upon the person or persons named therein.” (Ill. Rev. Stat. 1989, ch. 111½, par. 1031(b).)

The Agency and the Board correctly point out that the Agency itself is not subject to a cause of action under this section. Landfill, Inc. v. Pollution Control Board (1978), 74 Ill. 2d 541, 556-57, 387 N.E.2d 258, 263-64.

As stated by our supreme court in Landfill:

“Sections 30 and 31(a) speak in terms of Agency investigation of violations. The focus must be upon polluters who are in violation of the substantive provisions of the Act, since it would be unreasonable to presume these provisions direct the Agency to investigate its own compliance with permit-granting procedures. *** As David Currie, a principal draftsman of the Act and the first chairman of the Board, has noted, section 31(b) provides for citizen complaints as an additional safeguard against inadequate prosecutions. (Currie, Enforcement Under Illinois Pollution Law, 70 Nw. U.L. Rev. 389, 451-52 (1975).) Prosecution under the Act, as already indicated, is against polluters, not the Agency.
The one statutory exception to the Board’s quasi-legislative role in relation to permits is in instances in which the Agency has denied a permit [citation]. *** There are no comparable statutory provisions for Board review on either substantive or technical grounds of the Agency’s grant of a permit, thus indicating a legislative intent not to provide for such a proceeding.” 74 Ill. 2d at 556-57, 387 N.E.2d at 263-64.

In this case, Envirite charges that the Agency failed to require original generators of hazardous waste to obtain appropriate Agency authorization and improperly granted the required authorization solely to the treatment facility. In our opinion, these allegations of Agency nonfeasance and malfeasance are the functional equivalent of the objectors’ challenges to the Agency’s grant of a development permit to the sanitary landfill in the Landfill case. As aforesaid, the Act does not authorize an action before the Board to challenge the Agency’s performance of its statutory duties in issuing such authorization. Thus, pursuant to Landfill, we hold that the Board did not err in dismissing the Agency from this action.

Finally, Envirite argues that the Board erred in denying it leave to file a reply brief to the joint response of PDC and the Agency to Envirite’s motion for summary judgment. The Board’s decision to grant or deny the reply brief was a matter sounding within the discretion of the Board and should not be reversed on appeal unless such decision is found to have been arbitrary and capricious. We have reviewed the record and find that the issues and the parties’ positions were adequately presented and documented for the Board’s full consideration of all motions for summary disposition. We hold that the Board’s decision to deny further briefing was neither arbitrary nor capricious and should not be disturbed.

For the foregoing reasons, the decision of the Pollution Control Board is affirmed in part and reversed in part. We remand this cause for reinstatement of the action against PDC and for further proceedings consistent with the views expressed herein.

Affirmed in part; reversed in part and remanded.

STOUDER and SLATER, JJ., concur.


text:
    THE PEOPLE ex rel. EDWARD A. BURMILA, JR., State’s Attorney of Will County, Plaintiff-Appellant, v. ONE 1983 OLDSMOBILE, VIN 1G3AR47A1DM533361, et al., Defendant-Appellee.
    Third District
    No. 3-92-0253
    Opinion filed January 14, 1993.

      Edward Burmila, Jr., State’s Attorney, of Joliet (John X. Breslin and Rita Kennedy Mertel, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for appellant.
    No brief filed for appellee.
   JUSTICE STOUDER

delivered the opinion of the court:

The State appeals an order denying a forfeiture petition against a 1983 Oldsmobile. The sole issue concerns the applicability of the forfeiture statute to a vehicle owned by a minor that was used to transport burglary tools and to commit a burglary. We reverse.

No appellee’s brief has been filed in response. However, since the record is simple and the issue is clear, we will address the merits of the case. First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493.

The record shows that the minor, James Wagner, admitted that he was the legal owner of the 1983 Oldsmobile, VIN 1G3AR47A1DM533361, and that he used it to commit a burglary (Ill. Rev. Stat. 1991, ch. 38, par. 19 — 1). He also admitted that he used the same vehicle to commit the offense of possession of burglary tools (Ill. Rev. Stat. 1991, ch. 38, par. 19 — 2). Finally, he admitted that the vehicle had been seized by the Plainfield police department.

At the forfeiture hearing, the minor argued that the vehicle could not be forfeited because he was a minor charged in a delinquency petition. He further argued that since the Juvenile Court Act contained the only sanctions that could be imposed on a juvenile (see Ill. Rev. Stat. 1991, ch. 37, par. 805-4), the forfeiture sanctions of the Criminal Code of 1961 (Ill. Rev. Stat. 1991, ch. 38, par. 36-1) were not applicable to him. The trial judge agreed with the minor and denied the State’s petition.

The language of a statute must be given its plain and ordinary meaning. People v. Bryant (1989), 128 Ill. 2d 448, 539 N.E.2d 1221.

Applying this rule of statutory construction in this case, it is clear that the forfeiture statute applies to juveniles. First, the plain language of the Juvenile Court Act only limits the criminal prosecution of juveniles. (Ill. Rev. Stat. 1991, ch. 37, par. 805-4.) No reference is made to limitations on civil proceedings against juveniles. Second, the plain language of the forfeiture act provides for forfeiture when a vehicle is

“used with the knowledge and consent of the owner in the commission of, or in the attempt to commit as defined in Section 8-4 of this Code, an offense prohibited by (a) Section *** 19-1, 19-2.” Ill. Rev. Stat. 1991, ch. 38, par. 36-1.

Additionally, it is well settled that a forfeiture proceeding is a civil proceeding. (People ex rel. Vandersnick v. One 1987 Dodge Charger (1990), 193 Ill. App. 3d 547, 550 N.E.2d 271.) It is also well settled that a forfeiture proceeding is an in rem proceeding. (People v. Dugan (1985), 109 Ill. 2d 8, 485 N.E.2d 315.) Further, statutory forfeiture actions do not depend on a criminal conviction. The only issue is whether or not the forfeitable property was used in the commission of an offense. (In re Twenty-Seven Thousand Four Hundred Forty Dollars (1987), 164 Ill. App. 3d 44, 517 N.E.2d 704.) Finally, we will not reverse a trial judge’s order regarding forfeiture unless the ruling is against the manifest weight of the evidence. People v. One 1986 Ford Ranger Pickup Truck (1991), 213 Ill. App. 3d 1085, 572 N.E.2d 1201.

Applying these principles in the instant case, we find that the trial judge erred in holding that the forfeiture statute does not apply to juveniles. Since the forfeiture proceeding is a civil in rem proceeding rather than a criminal proceeding, there is nothing in the juvenile code to prevent its application to the instant minor. Moreover, the plain language of the statute states that it applies to vehicles used with the owner’s consent to commit burglary or possession of burglary tools. Lastly, the evidence is undisputed that the minor used the 1983 Oldsmobile to commit the aforementioned crimes. Therefore, we find that the trial judge’s ruling is not in accord with the statute.

Based on the foregoing reasons, we reverse the judgment of the circuit court of Will County.

Reversed.

LYTTON and BARRY, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DONALD J. McCORKLE, Defendant-Appellant.
    Third District
    No. 3-92-0292
    Opinion filed January 8, 1993.
    Stephen Omolecki, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Marshall E. Douglas, State’s Attorney, of Rock Island (John X. Breslin and Terry A. Mertel, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE STOUDER

delivered the opinion of the court:

The defendant, Donald J. McCorkle, was charged with criminal sexual assault and aggravated criminal sexual abuse (Ill. Rev. Stat. 1991, ch. 38, pars. 12-13, 12-16). Following a jury trial he was convicted of aggravated criminal sexual abuse and sentenced to three years’ imprisonment. He appeals.

The record shows that the victim was a 16-year-old female. She baby-sat the defendant’s daughter, Natalie, at the defendant's ex-wife’s residence. The victim and Natalie eventually became friends. Natalie stayed overnight with the defendant during visitations, and occasionally the victim also stayed with them.

The victim testified about several incidents that occurred when she stayed overnight with the defendant. One night the defendant carried her into his room and placed her on his bed. He touched her and put his finger in her vagina. Another night the defendant called the victim into his bedroom, where he again sexually molested her. Finally, on a night before a trip to Great America, the defendant once again sexually molested her.

The victim said that she was subsequently admitted to a mental hospital. When she was released, she told Doris Angel what the defendant had done. The victim later called the defendant several times. She told him she was sorry and that she said he had molested her because she did not want to go back to the hospital. She believed that the defendant had something to do with her being committed to the hospital, and she was upset about not being able to see Natalie while she was hospitalized.

The defendant testified that he never sexually molested the victim. He stated that he once took her to his bedroom and laid her on his bed because she was hyperventilating. He also testified that on another night he heard noises. When he got up, he saw the victim standing in a dazed condition in front of his bathroom.

Natalie testified that she never witnessed the defendant sexually molest the victim. She also said that she once observed the victim hyperventilate, and the defendant helped the victim into the house and put her on his bed.

The defendant’s ex-wife, Lori Wirt, testified that the defendant spent quite a bit of time at the restaurant where the victim worked. The defendant went there at least once and often twice a day. She further testified that she was only 16 years old when she began dating the defendant. At that time, the defendant was 36 years old, and he had to sign a contract with Wirt’s parents stating when and where he could see her.

The record also shows that the victim is mildly retarded. Psychiatric testimony established that she is hyperactive, restless, impulsive, and totally unpredictable in what she will say.

During closing argument, the prosecutor rhetorically asked why someone in the defendant’s position would go after “jail bait.” The prosecutor then noted that the defendant had gone after “jail bait” before when he dated Lori Wirt, and that it had been such a problem that he had to enter into a contract with Wirt’s parents.

The defendant argues on appeal that he was deprived of a fair trial. Specifically, he claims that the testimony which established he dated his ex-wife when she was 16 years old was improper. He also claims that the prosecutor’s closing argument stating that the defendant had a propensity for relationships with “jail bait” was improper. We agree.

It is well established that evidence of crimes or bad acts other than that for which a defendant is being tried is inadmissible if it is used solely to suggest that a defendant has a propensity to commit crimes. (People v. Adams (1985), 109 Ill. 2d 102, 485 N.E.2d 339; People v. Tiller (1982), 94 Ill. 2d 303, 447 N.E.2d 174.) Furthermore, it is improper for a prosecutor to make statements solely for the purpose of inflaming the passions and arousing the prejudices of the jury. People v. Witted (1979), 79 Ill. App. 3d 156, 398 N.E.2d 68.

We find that the prosecutor’s examination of Lori Wirt was improper. The evidence prejudiced the defendant because it was used solely to imply that he had a propensity to commit sexual crimes with young women. The prosecutor then greatly exacerbated the prejudice in closing argument by asserting that the defendant had been' attracted to “jail bait” before.

We note that the defendant failed to object to the errors at trial or in his post-trial motion, thereby raising the possibility that he waived them. (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124; People v. Whitehead (1987), 116 Ill. 2d 425, 508 N.E.2d 687.) However, an exception to the waiver rule is the plain error doctrine. Plain error is restricted to the correction of grave errors or to situations where the case is close factually and fundamental fairness requires a new trial. People v. Huckstead (1982), 91 Ill. 2d 536, 440 N.E.2d 1248.

Our review of the record in the instant case reveals that the evidence was close. The victim’s testimony was confused and at times contradictory. There was little corroboration of her testimony, and there was also psychiatric testimony indicating that she had little reliability. Although the evidence was sufficient to meet the Collins standard on review (People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267), we find that the evidence was so close that plain and reversible error occurred. We therefore reverse the conviction and remand the cause for further proceedings.

Because of our resolution of these issues, we need not address the sentencing issues raised by the defendant.

We reverse the judgment of the circuit court of Rock Island County and remand the cause for further proceedings consistent with this opinion.

Reversed and remanded.

SLATER and BARRY, JJ., concur.