author: JUSTICE KNECHT

text:
    GLADYS MAE DiBELLO, Petitioner, v. ILLINOIS COMMERCE COMMISSION et al., Respondents.
    Fourth District
    No. 4—92—0642
    Opinion filed March 18,1993.

      Land of Lincoln Legal Assistance Foundation, Inc., of Springfield (Lauren Pashayan, of counsel), for petitioner.
    Cynthia Lynn Bickel, Special Assistant Attorney General, of Chicago, for respondent Illinois Commerce Commission.
    Timothy W. Kirk, of Peoria, for respondent Central Illinois Light Company.
   JUSTICE KNECHT

delivered the opinion of the court:

On February 11, 1991, petitioner Gladys Mae DiBello applied for gas service with respondent Central Illinois Light Company (CILCO). CILCO denied her application because of an outstanding bill in the name of her estranged husband. Petitioner then filed a verified complaint with the Illinois Commerce Commission (ICC) alleging CILCO improperly denied her application for service. The ICC denied her complaint, and she now seeks direct administrative review of the order of the ICC (DiBello v. Central Illinois Light Co. (May 28, 1992), Ill. Com. Comm’n No. 91 — 0183 (Commerce Commission’s order) (hereinafter Commerce Commission’s order)), denying her request for CILCO to approve her application for utility service without payment of the outstanding utility bill. The crux of the issue surrounds the utility’s practice, whereby it employs a legal fiction to find a spouse of the customer of record “liable” for an outstanding bill for the purpose of passing on an application for service. We affirm.

Petitioner and Christopher DiBello were married on August 2, 1985. On October 8, 1986, Christopher DiBello applied for gas service from CILCO for 1612 North 11th Street, Springfield, Illinois. He signed the application and listed petitioner as his spouse. CILCO does not require both spouses to sign the application for service, but nevertheless considered both petitioner and Christopher DiBello to be its customers.

On or about March 2, 1989, petitioner and Christopher DiBello moved to an apartment at 412 West Capitol, Springfield, Illinois, where the past-due bill at issue was incurred. They lived at this address with their four children. Christopher DiBello called CILCO on February 28, 1989, and requested gas service at this property. Neither petitioner nor Christopher DiBello was required to sign a new application for service for 412 West Capitol because a customer is only required to apply for service once. Petitioner acknowledged CILCO provided service to this property and sent bills to the apartment for the service. The bills were addressed to the spouse that applied for service, which in this instance was Christopher DiBello. The gas service at 412 West Capitol was used for hot water, heating, and cooking.

Petitioner, Christopher DiBello, and their children moved from 412 West Capitol in January 1990 to a property on North Sixth Street, Springfield, Illinois. The final amount owing on the 412 West Capitol property was $509.64 for service incurred between September 29, 1989, and January 22, 1990. The DiBellos were current on their billings for gas service until September 1989. Service to 412 West Capitol was taken out of the DiBellos’ name on January 22, 1990, pursuant to a request by the owner of the rental property.

After moving to North Sixth Street, petitioner and Christopher DiBello separated. Shortly thereafter, petitioner and her children moved into an apartment at 812 North Seventh Street, Springfield, Illinois, the property where petitioner resided when she applied for the service which is the subject of this dispute. She moved into this apartment with a friend, Ollie Clark. At no time did Christopher DiBello live at this residence. The gas service to this apartment was in Clark’s name, and it commenced on December 9, 1990. The application for gas service listed petitioner as a resident. Gas service at 812 North Seventh Street was used for hot water and heat.

Clark subsequently moved out of the apartment and failed to pay the gas bill. On February 11, 1991, petitioner applied for service in her own name for the 812 North Seventh property. CILCO denied service to petitioner due to the outstanding bill of $509.54 for service provided to the 412 West Capitol property. CILCO advised petitioner she would have to pay the outstanding bill before she could receive service in her own name. Although CILCO denied service to petitioner, she continued to reside in the apartment and use the gas until CILCO terminated the gas service for nonpayment on April 25, 1991. It was unable to terminate gas service prior to this time because of the winter moratorium which precludes utilities from disconnecting services if the temperature will be 32 degrees or below. (See Ill. Rev. Stat. 1991, ch. lll2/3, par. 8 — 205.) Petitioner moved out of the apartment after CILCO disconnected service.

Based on these facts, the hearing examiner held Peoples Gas Light & Coke Co. v. Illinois Commerce Comm’n (1991), 222 Ill. App. 3d 738, 584 N.E.2d 341, was dispositive of the issue presented, and following this case, found petitioner was responsible for the outstanding bill under section 15(aXl) of “An Act to revise the law in relation to husband and wife” (commonly referred to as the family expense statute) (Ill. Rev. Stat. 1989, ch. 40, par. 1015(aXl)). (DiBello v. Central Illinois Light Co. (Mar. 25, 1992), Ill. Com. Comm’n No. 91 — 0183, at 8 (hearing examiner’s proposed order) (hereinafter hearing examiner’s proposed order).) CILCO, therefore, properly denied her request for service, and her complaint was denied. Hearing examiner’s proposed order, at 8.

Following the filing of a brief on exceptions to the proposed order by petitioner and a responding brief by CILCO, the ICC entered its order. It concluded Peoples Gas was dispositive, and petitioner was responsible under the family expense statute for the unpaid utility bill for 412 West Capitol. It therefore denied the complaint. (Commerce Commission’s order, at 7, 9.) The ICC thereafter denied petitioner’s application for rehearing, and this appeal followed.

The family expense statute provides, in relevant part:

“The expenses of the family and of the education of the children shall be chargeable upon the property of both husband and wife, or of either of them, in favor of creditors therefor, and in relation thereto they may be sued jointly or separately.” Ill. Rev. Stat. 1989, ch. 40, par. 1015(a)(1).

There apparently is no dispute petitioner would be found liable for the outstanding utility bill under the family expense statute if an appropriate action were brought against her in the circuit court. It is petitioner’s argument on appeal, however, that it is beyond the scope of the ICG’s authority to determine she is liable for the outstanding utility bill under the family expense statute. She contends in determining her liability the ICC is restricted to considering the express provisions of the Public Utilities Act (Utilities Act) (Ill. Rev. Stat. 1989, ch. lll2/s, par. 1 — 101 et seq.) and corresponding regulations; she maintains no other law or regulation can be considered. Under the ICG’s regulations, she contends only the customer of record can be denied service because of an overdue account. Since she was not the customer of record, she argues she cannot be denied service because of nonpayment of the gas bill in her husband’s name. Petitioner, of course, initiated the ICC processes by filing her complaint seeking to use the public agency and its procedures to compel CILCO to grant her service without her paying the past-due bill.

Conversely, CILCO contends it is within the ICG’s authority to determine liability under the family expense statute because in all contested cases it must determine all of an individual’s legal rights and duties. It must, therefore, look to all law, including the family expense statute, in making its determination. Also, under regulations, a utility may deny service to an applicant who has failed to pay for utility service “furnished” to her; since petitioner was a user of the gas service, CILCO contends it furnished her gas service and could deny her application based on the past-due bill. See 83 Ill. Adm. Code §280.50 (1985) (procedures rules).

The only case we have found which specifically addresses the ICG’s jurisdiction to review a utility’s denial of service to an applicant based on apparent liability under the family expense statute is Peoples Gas. In that case, the first district held the ICG’s statutory duty to enforce statutes affecting public utilities, when enforcement was not specifically vested in some other office or tribunal, gave the ICC jurisdiction to determine a utility’s right to “bill” the spouse of the customer of record for an outstanding gas bill based on the family expense statute. (Peoples Gas, 222 Ill. App. 3d at .742, 584 N.E.2d at 344.) We agree with the result reached by the first district, and affirm the ICC’s decision.

In reviewing an ICC decision, this court is limited to determining whether (1) the ICC decision was within the scope of its statutory authority, (2) the ICC made findings adequate to support its decision, and (3) the decision infringed upon constitutional rights. (United Cities Gas Co. v. Illinois Commerce Comm’n (1992), 225 Ill. App. 3d 771, 777, 587 N.E.2d 581, 585.) An order of the ICC will not be set aside unless it is against the manifest weight of the evidence. Rural Electric Convenience Cooperative Co. v. Illinois Commerce Comm’n (1979), 75 Ill. 2d 142, 148, 387 N.E.2d 670, 673.

The issue in this case deals specifically with whether the ICC exceeded its authority by determining CILCO could deny service to petitioner because it had determined she was “liable” for the outstanding utility bill under the family expense statute. The ICC is an administrative agency, the powers of which are derived from the legislature. (Business & Professional People for the Public Interest v. Illinois Commerce Comm’n (1991), 146 Ill. 2d 175, 195, 585 N.E.2d 1032, 1039.) Its sole power stems from the Utilities Act, and it has power and jurisdiction only to determine facts and make orders concerning the matters specified in the Act. (Union Electric Co. v. Illinois Commerce Comm’n (1979), 77 Ill. 2d 364, 383, 396 N.E.2d 510, 519.) Pursuant to the Utilities Act, the Commission has

“general supervision of all public utilities, except as otherwise provided in this Act, shall inquire into the management of the business thereof and shall keep itself informed as to the manner and method in which the business is conducted. It shall examine those public utilities and keep informed as to their general condition, their franchises, capitalization, rates and other charges, and the manner in which their plants, equipment and other property owned, leased, controlled or operated are managed, conducted and operated, not only with respect to the adequacy, security and accommodation afforded by their service but also with respect to their compliance with this Act and any other law, with the orders of the Commission and with the charter and franchise requirements.” (Ill. Rev. Stat. 1991, ch. lll/s, par. 4-101.)

The Utilities Act also provides a complaint initiated pursuant to any section of the Act shall be considered a “contested case” as defined in section 3.02 of the Illinois Administrative Procedure Act (Ill. Rev. Stat. 1991, ch. 127, par. 1003.02). (Ill. Rev. Stat. 1991, ch. lll/3, par. 10 — 101.) A “contested case” is defined as:

“an adjudicatory proceeding, not including rate making, rule-making, quasi-legislative, informational or similar proceedings, in which the individual legal rights, duties or privileges of a party are required by law to be determined by an agency only after an opportunity for hearing.” Ill. Rev. Stat. 1991, ch. 127, par. 1003.02.

The ICC also has the authority to adopt “reasonable and proper rules and regulations relative to the exercise of its powers, and proper rules to govern its proceedings, and regulate the mode and manner of all investigations and hearings.” (Ill. Rev. Stat. 1991, ch. III2/3, par. 10 — 101.) Given the supervisory nature of the ICC over utilities and its authority to adopt rules relative to the exercise of its powers, we conclude it is within the scope of the ICG’s authority, upon a complaint filed such as here, to pass upon a utility’s “attribution” of an outstanding gas bill to the spouse of the customer of record-based upon the family expense statute — for the limited purpose of passing on his or her application for service. A utility should not be required to extend service to an applicant who by all appearances is liable for an outstanding gas bill under the family expense statute, even if the service for that time was in the spouse’s name. To hold otherwise would affect the ability of the utility to provide “adequate, efficient, reliable, [and] environmentally safe” gas service to Illinois consumers at the lowest possible cost. See Ill. Rev. Stat. 1991, ch. III2/3, par. 1-102.

In so ruling we first note the utility would still have to proceed against petitioner in the circuit court and reduce the debt to judgment under the family expense statute in order to use legal process to collect it from her, i.e., the utility’s “attribution” of the outstanding bill to her is valid only for its internal purpose of passing on her application for service. And, second, persons in petitioner’s position are afforded some protections in the ICG’s review of a complaint: petitioner did not dispute that she and her children resided at the residence and benefitted from the utility service represented by the outstanding bill. Hence, this is not a case where a bill is being “attributed” against the application of a spouse who was not living at the residence during the period the bill was incurred.

For the foregoing reasons, the order of the ICC is affirmed.

Affirmed.

McCULLOUGH and LUND, JJ., concur.


source: Caselaw Access Project

author: JUSTICE LUND

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOSEPH M. MITCHELL, Defendant-Appellant.
    Fourth District
    No. 4—92—0417
    Opinion filed March 25,1993.

      Daniel D. Yuhas and Lawrence Bapst, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Thomas J. Brown, State’s Attorney, of Pontiac (Norbert J. Goetten and Robert J. Biderman, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE LUND

delivered the opinion of the court:

Following a jury trial, defendant was convicted of the offense of aggravated battery (Ill. Rev. Stat. 1991, ch. 38, par. 12 — 4(a)) and attempt (murder) (Ill. Rev. Stat. 1991, ch. 38, pars. 8 — 4(a), 9— 1(a)(1)). He was sentenced to a term of 10 years’ imprisonment and ordered to pay restitution in the amount of $14,315.13. Defendant appeals, claiming (1) he is entitled to a new trial because the trial court erroneously instructed the jury that it could find defendant guilty of attempt (murder) without finding that he had the intent to kill, and (2) the order of restitution was a meaningless act and must be vacated because defendant has no assets and will never be able to pay the full amount. We affirm.

An instruction must make it clear that to convict for attempt (murder), nothing less than a criminal intent to kill must be shown. (People v. Harris (1978), 72 Ill. 2d 16, 27, 377 N.E.2d 28, 33.) In this case, the jury was given a definitional instruction for murder, over defense counsel’s objection, that included alternative mental states. People’s instruction No. 9 stated:

“A person commits the offense of murder when he kills an individual without lawful justification if, in performing the acts which cause the death, (1) he intends to kill or do great bodily harm to that individual or another; or (2) he knows that such acts will cause death to that individual or another; or (3) he knows that such acts create a strong probability of death or great bodily harm to that individual or another.”

Jury deliberations began at 9:04 a.m. Approximately three hours later, the trial court discovered its error. The trial judge informed the jurors that the attempt (murder) instructions were flawed and a new instruction would be prepared while they recessed for lunch. All instructions and verdict forms were returned to the bailiff. The jury had already reached a verdict and had signed the verdict form for the charge of aggravated battery.

When the jury returned, the trial judge explained that the instruction defining the offense of murder included three alternative ways to commit the offense and that this was incorrect. He then read the correct instruction to the jury and provided it with a written copy. The substituted instruction read:

“A person commits the offense of murder when he kills an individual, without lawful justification if, in performing the acts which cause the death, he intends to kill that individual.”

The jury was also supplied with blank verdict forms for both charges.

At 7:15 p.m., the jury sent out a note asking for the “legal definition of intent or with intent? Is it a positive act or a positive thought[?]” The court responded with an instruction setting out the Illinois statutory definition:

“Intent. A person intends, or acts intentionally or with intent, to accomplish a result or engage in conduct described by the statute defining the offense, when his conscious objective or purpose is to accomplish that result or engage in that conduct.” (Ill. Rev. Stat. 1991, ch. 38, par. 4 — 4.)

At 7:58 p.m., the jury found defendant guilty of both charges against him.

Despite the fact that the error had been corrected, defendant claims that allowing the jury to deliberate for three hours with an incorrect instruction so tainted the jury as to deny him a fair trial. Defendant cites People v. Manzo (1989), 183 Ill. App. 3d 552, 539 N.E.2d 237, where a jury was instructed to find the defendant guilty of attempt (murder) if it found that he intended to kill or do great bodily harm to the victim. Unlike the case at hand, the trial court discovered the mistake approximately 10 minutes after deliberations had begun. Deliberations were halted, and the jury was given the proper instruction. On appeal, the First District Appellate Court found no error, because the trial court’s prompt action cured any error which may have resulted from the erroneous instruction.

Defendant distinguishes Mamo from the case at hand, precisely because there was no prompt action to correct the erroneous instruction. Defendant contends the lengthy delay in removing the erroneous instruction tainted the jury. We disagree. At the time the jury was told to halt its deliberations, it had reached a verdict only as to the charge of aggravated battery. After being properly instructed, deliberations continued for nearly seven hours. The fact that the jury requested a precise definition of intent indicates the deliberation was focused on the very instructions the trial judge had hoped to impress upon it when he corrected the definition of murder. Any claim of prejudice to defendant is pure speculation. Based upon these facts, it is apparent that the jury considered the charges against defendant in meticulous detail. We find no reversible error.

Next, defendant contends the order of restitution was a meaningless act because he has no assets and will never be able to comply with the order. Defendant cites People v. Wagner (1989), 189 Ill. App. 3d 1041, 546 N.E.2d 283, where our court found an order for restitution to be inappropriate. In Wagner, the defendant was 16 years of age at the time of trial, but due to the nature of the crime was tried as an adult. The trial court ordered restitution in the amount of $44,568 and sentenced defendant to 15 years’ imprisonment. Significantly, the trial court noted that the order of restitution was “a meaningless act for the most part because you have absolutely no ability to pay those sums of money, but certainly while in the Department of Corrections you could not do so.” Wagner, 189 Ill. App. 3d at 1055, 546 N.E.2d at 292.

We now conclude our decision relating to the restitution issue in Wagner was in error. A careful consideration of section 5 — 5—6 of the Unified Code of Corrections (Code) (Ill. Rev. Stat. 1991, ch. 38, par. 1005 — 5—6) (restitution), together with section 5 — 5—3 of the Code (Ill. Rev. Stat. 1991, ch. 38, par. 1005 — 5—3) (disposition), necessarily leads to the conclusion that restitution is a sentencing provision and an option “alone or in combination” with other dispositions. (Ill. Rev. Stat. 1991, ch. 38, par. 1005 — 5—3(b).) The first paragraph of section 5 — 5—6 of the Code states, in part, “the court shall at the sentence hearing determine whether restitution is an appropriate sentence to be imposed.” Ill. Rev. Stat. 1991, ch. 38, par. 1005 — 5—6.

In Wagner, we emphasized the lack of ability to pay and vacated the restitution provision. We now determine ability to pay is only relevant when (1) determining the manner of payment (Ill. Rev. Stat. 1991, ch. 38, par. 1005 — 5—6(f)); (2) defendants are being assessed for victims’ counseling services (Ill. Rev. Stat. 1991, ch. 38, par. 1005 — 5—6(g)); and (3) a petition to revoke restitution is filed (Ill. Rev. Stat. 1991, ch. 38, par. 1005 — 5—6(i)). Section 5 — 5— 6(i) of the Code prohibits revocation “unless the court shall find that the offender has had the financial ability to make restitution, and he has wilfully refused to do so.” (Ill. Rev. Stat. 1991, ch. 38, par. 1005 — 5—6(i).) There is no provision requiring consideration of the ability to pay when deciding whether restitution should be part of a sentence.

Section 5 — 5—6(k) of the Code does not bar a separate civil action by the victim. (Ill. Rev. Stat. 1991, ch. 38, par. 1005 — 5— 6(k).) No restitution is to be ordered “on account of pain and suffering.” (Ill. Rev. Stat. 1991, ch. 38, par. 1005 — 5—6(b).) Now a restitution order creates a judgment lien in favor of the victim, which is similar to liens that would follow a judgment in civil actions. (Ill. Rev. Stat. 1991, ch. 38, par. 1005 — 5—6(m).) Irrespective of whether the defendant has property or assets, or might acquire any, there is a value in having a restitution order in place. We note that debts created by restitution orders are dischargeable in bankruptcy. See Pennsylvania Department of Public Welfare v. Davenport (1990), 495 U.S. 552,109 L. Ed. 2d 588,110 S. Ct. 2126.

We conclude that section 5 — 5—6 of the Code basically allows for a court order which at least partially substitutes for civil relief in favor of the injured party or parties. The lack of ability of a defendant to pay in a civil action is of no relevance in deciding the propriety of a judgment. Other than the exceptions recognized in this opinion, that lack of ability does not prevent a restitution order.

We conclude the trial court has the authority to order restitution as a part of the sentence, regardless of the term of the incarceration and defendant’s financial resources. The fact that it may never be collectible is of no importance. To the extent that Wagner suggests otherwise, we overrule it.

In rejecting defendant’s argument that his restitution order should be vacated because of the unlikelihood that he will ever be able to comply, we reassert what we wrote in People v. Nasser (1991), 223 Ill. App. 3d 400, 410, 584 N.E.2d 1010, 1016: “[T]he Illinois General Assembly intended, in every criminal case where possible, to achieve two goals: (1) to make victims whole for any injury received at the hands of the convicted criminal; and (2) to make criminals pay all of the costs which arise as a result of injuries the victims suffered.” (Emphasis in original.) No one can say with certainty what the future holds, and even though in a case like the present one, it appears unlikely that defendant will be able to comply with the restitution order, no one can say his compliance is impossible.

An incarcerated convict could obtain funds to pay a restitution order through inheritance, winning the lottery, or perhaps because of some cause of action that might arise as a result of his imprisonment. Indeed, in consideration of that last eventuality — an inmate obtains a money judgment against personnel of the Illinois Department of Corrections — the General Assembly in 1984 added section 13 — 202.1 to the Code of Civil Procedure (Civil Code) (Pub. Act 83— 1040, §1, eff. Jan. 5, 1984 (1983 Ill. Laws 7104); see Ill. Rev. Stat. 1991, ch. 110, par. 13 — 202.1) so that whenever such a judgment in excess of $500 is rendered, steps can be taken to insure that the victim of that inmate’s crime is notified and can bring a civil action (if necessary) to obtain the money due the inmate for the victim’s benefit.

We note that section 13 — 202.1 of the Civil Code further provides that if an inmate is in prison because he committed first degree murder (see Ill. Rev. Stat. 1991, ch. 38, par. 9 — 1), a Class X felony, or a Class 1 felony, then there shall be no statute of limitations on any action the victim may choose to bring against that inmate. Thus, the legislature has provided that such an inmate literally is subject for the rest of his life to being sued civilly for the harm he caused by his felonious behavior.

Last, we note that last year, by enacting Public Act 87 — 941 (Pub. Act 87-941, eff. Aug. 28, 1992 (1992 Ill. Legis. Serv. 1770 (West))), the legislature added language to section 13 — 202.1 of the Civil Code to provide that (1) the absence of a statute of limitations shall apply regardless of the date on which a defendant’s conduct is alleged to have occurred or the date of any conviction resulting therefrom, and (2) section 13 — 202.1 of the Civil Code shall be applied retroactively and shall revive causes of action which otherwise may have been barred under limitations provisions previously' in effect. Based upon this legislative history, we conclude that the legislature has clearly set forth the policy of this State as strongly favoring restitution for the victims of crime even when, as here, the person ordered to pay restitution is imprisoned and not likely to be able to comply with the restitution order.

We fully recognize that trial courts do not like to enter nugatory orders. Further, a circuit judge might believe that entering orders of restitution on incarcerated defendants will subject them to criticism for “grandstanding” — that some might contend a court is trying to show to the victim and the local community that the court is providing restitution for the victim when, in fact, such restitution is unlikely ever to be accomplished. In urging trial courts to order restitution notwithstanding a defendant’s incarceration, we suggest that the trial courts address these concerns directly by explaining at the sentencing hearing, when ordering restitution, that no one should leave the courtroom expecting that the incarcerated defendant has much chance of complying with the restitution order. The court should explain that it is taking the action of ordering restitution so that, in the unlikely event defendant obtains funds from any source (as discussed earlier herein), then the victim (with a minimum of red tape) can latch onto those funds. In our judgment, if a trial judge explains this latter point fully and frankly, the concerns he or she might have about being viewed as “grandstanding” should dissipate entirely.

Affirmed.

STEIGMANN, P.J., and KNECHT, J., concur.


author: JUSTICE COOK delivered

text:
    BEVERLY NORTHROP, Plaintiff-Appellant, v. CRAIG LOPATKA, Defendant-Appellee (Phillip N. Wheat et al., Defendants).
    Fourth District
    No. 4— 92—0487
    Opinion filed March 25, 1993.

      Cook, Shevlin, Keefe, Ysursa, Brauer & Bartholomew, Ltd., of Belleville (Gregory L. Shevlin, of counsel), for appellant.
    Armstrong, Winters, Prince, Featherstun & Johnson, of Decatur (Evan H. Johnson, of counsel), for appellee.
   JUSTICE COOK delivered

the opinion of the court:

Plaintiff appeals that portion of the order of summary judgment entered in favor of defendant Dr. Craig Lopatka, the striking of her expert’s affidavit (which was attached to her motion to reconsider), and the denial of her motion to file a fourth-amended complaint. We affirm.

On September 27, 1987, plaintiff went to the dental office of Williams, Colantino, Wheat and Scannura, Ltd. (dental office), to have X rays taken preparatory to oral surgery. A dental assistant used a Panorex X-ray machine to take films of plaintiff’s mouth. During the series of exposures the machine struck plaintiff’s upper lip and stopped its circular movement around her face. Plaintiff noticed a quick, sharp pain to the back of her neck at the time of contact with the machine. The dental assistant then stepped into the room and moved the machine back from plaintiff’s face, so it could complete the series of X-ray exposures. When this procedure was completed, plaintiff saw Dr. Lopatka, the only dentist then present at the dental office, to discuss the upcoming surgery. She did not mention the X-ray machine had hit her face. Plaintiff returned to the dental office on October 8, 1987, and had oral surgery performed by Dr. Wheat. She said nothing at that time to Dr. Wheat, to the receptionist, or to the nurses about the X-ray machine striking her. Plaintiff thereafter experienced various medical problems.

Plaintiff filed a seven-count complaint against the four named defendants. During the course of proceedings plaintiff twice amended her complaint, confessed a motion for summary judgment filed by defendant Keystone X-Ray, and voluntarily dismissed defendant S.S. White Dental Products International.

At the time of the motion for summary judgment, filed by Drs. Lopatka and Wheat, the only pleading before the court was plaintiff’s third-amended complaint. The only remaining counts of that complaint were counts I and II, alleging batteries committed through an agent by Drs. Lopatka and Wheat, respectively, and count V, alleging dental malpractice through an agent by Dr. Lopatka. The affidavit of Dr. Lo-patka was attached to defendants’ motion for summary judgment, stating that both he and the dental assistant were employees of the dental office and that he was neither an officer nor a shareholder of that corporation.

The court granted defendants’ motion, finding plaintiff had confessed the motion for summary judgment on the battery alleged in count II against Dr. Wheat as well as subparagraphs 7(a), (c), and (d) of count V, the dental malpractice alleged against Dr. Lopatka. As to count I, the battery allegedly committed by Dr. Lopatka through his agent, the court found that Dr. Lopatka had no personal liability to plaintiff by virtue of his status as a supervisor and coemployee of the dental assistant. Plaintiff does not appeal the summary judgment on counts I or II, but only that portion of the summary judgment dealing with count V, subparagraph 7(b).

That claim alleges Dr. Lopatka “[negligently and carelessly allowed the Panorex machine to strike the plaintiff by and through his agent, servant, or employee.” As to this claim the count found (1) plaintiff presented no evidence Dr. Lopatka deviated from any applicable standard of care in relation to treatment he gave the plaintiff; (2) there was no proximate causal relationship between any acts or omissions by Dr. Lopatka and injuries claimed by the plaintiff; (3) Dr. Lopatka was the supervisor and coemployee of the dental assistant who took the X ray of the plaintiff and had no liability for acts in which he neither participated nor directed; (4) under the provisions of the Illinois Dental Practice Act (Act) (111. Rev. Stat. 1987, ch. Ill, par. 2301 et seq.), Dr. Lopatka was not personally liable for the alleged acts of the dental assistant; and (5) plaintiff’s own expert testified that Dr. Lopatka was not responsible for direct supervision of the act the dental assistant was performing at the time of the alleged injury.

Plaintiff filed motions to reconsider the order of summary judgment, attaching in support an affidavit signed by her dental expert, and asking leave to file a fourth-amended complaint. Dr. Lopatka moved to strike .the affidavit. At a hearing on all pending motions, plaintiff acknowledged there were no issues sought to be raised in her fourth-amended complaint that had not been addressed by the court in granting the defendants’ motion for summary judgment on her third-amended complaint. The court allowed the motion to strike the affidavit of plaintiff’s expert for failure to comply with Supreme Court Rule 191 (134 Ill. 2d R. 191) and for contradicting previous deposition testimony, and denied plaintiff’s motions to reconsider and for leave to file a fourth-amended complaint.

Pursuant td section 2 — 1005(c) of the Code of Civil Procedure (Code) (111. Rev. Stat. 1987, ch. 110, par. 2 — 1005(c)), summary judgment is proper if the pleadings, depositions, and admissions on file, together with any affidavits, show there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law. (Addison v. Whittenberg (1988), 124 Ill. 2d 287, 294, 529 N.E.2d 552, 555.) On defendant’s motion "for summary judgment, plaintiff (who has the overall burden of proof) is not required to establish his case as he would at trial, but plaintiff must present some factual basis that would arguably entitle him to judgment. (Benner v. Bell (1992), 236 Ill. App. 3d 761, 769, 602 N.E.2d 896, 901; Swisher v. Janes (1992), 239 Ill. App. 3d 786, 794, 606 N.E.2d 798, 804.) In a dental malpractice case a plaintiff must present expert testimony to establish the proper standard of care, evidence the defendant deviated from that standard of care and that the deviation proximately caused plaintiff’s injury. See Addison, 124 Ill. 2d at 297, 529 N.E.2d at 556.

The acts allegedly giving rise to plaintiff’s injury are those of the dental assistant who operated the X-ray machine which struck the plaintiff. Plaintiff has presented no factual showing of a deviation in the standard of care on the part of Dr. Lopatka, through any of his acts or omissions, which proximately caused her injuries. While the deposition testimony of plaintiff’s expert arguably established a deviation in the standard of care by the dental assistant, plaintiff’s cause of action is not directed against the dental assistant or the dental assistant’s employer (the dental office), but rather against Dr. Lopatka. To survive a motion for summary judgment plaintiff must present some articulable facts creating or implying a legal relationship between the dental assistant and Dr. Lopatka recognized under statutory or common law sufficient to impute liability to him for the plaintiff’s injuries. (See Palmer v. Miller (1942), 380 Ill. 256, 259-60, 43 N.E.2d 973, 975.) The unrefuted affidavit submitted by Dr. Lopatka established that both he and the dental assistant were employees of the dental office and Dr. Lopatka had no interest in that corporation. Plaintiff has presented no legally cognizable theory supporting her allegation that the dental assistant acted as the agent of Dr. Lopatka. Rather, the facts indicate both are agents of the dental office, an entity not a party to this litigation.

An agent cannot be held responsible for the negligence of another agent unless he is guilty of fraud or gross negligence in the selection of such other agent or improperly cooperated with him in his acts or omissions. (Bunyan v. American Glycerin Co. (1923), 230 Ill. App. 351, 356; see also Johnson v. Turner (1943), 319 Ill. App. 265, 280, 49 N.E.2d 297, 304.) The common law does not impose strict liability on an employee who is merely the supervisor, but not the employer, of the employee who commits the tort. (See McKinnon v. City of Berwyn (7th Cir. 1984), 750 F.2d 1383, 1390.) Section 358(1) of the Restatement (Second) of Agency, provides “[t]he agent of a disclosed or partially disclosed principal is not subject to liability for the conduct of other agents unless he is at fault in appointing, supervising, or cooperating with them.” (Restatement (Second) of Agency §358(1), at 132 (1958).) Essentially, in order to be subject to liability for the acts of other agents, Dr. Lopatka must be personally at fault. Plaintiff has presented no evidentiary facts showing Dr. Lopatka improperly supervised the dental assistant. The deposition testimony of plaintiff’s own expert indicated that the standard of care did not require Dr. Lopatka’s presence in the X-ray room or his direct supervision of the dental assistant during the time the X-ray film was taken. Moreover, plaintiff confessed the motion for summary judgment as to her allegation that Dr. Lopatka negligently supervised the dental assistant. The cases cited by plaintiff in support of her claim for “derivative” liability have no application* to the facts of this case; the cases recognize the rule of vicarious liability only where a principal and agent or employer and employee relationship is shown. (See Kirk v. Michael Reese Hospital & Medical Center (1987), 117 Ill. 2d 507, 513 N.E.2d 387; Towns v. Yellow Cab Co. (1978), 73 Ill. 2d 113, 382 N.E.2d 1217.) In this case, no such relationship has been shown and there is no basis for imputing vicarious liability to Dr. Lopatka.

Plaintiff next contends that various provisions of the Act raise a “question” of a statutorily imposed agency relationship between the dental assistant and Dr. Lopatka sufficient to preclude the entry of summary judgment. Section 4(f) of the Act defines “[djental assistant” as follows: “ ‘Dental assistant’ means an appropriately trained person who, under the supervision of a dentist, provides dental services as authorized by Section 17.” (Dl. Rev. Stat. 1987, ch. Ill, par. 2304(f).) Section 4(h) defines “[sjupervision” as follows: “ ‘Supervision’ means supervision of a dental hygienist or a dental assistant requiring that a dentist authorize the procedure, remain in the dental facility while the procedure is performed, and approve the work performed by the dental hygienist or dental assistant before dismissal of the patient, but does not mean that the dentist must be present at all times in the treatment room.” Dl. Rev. Stat. 1987, ch. Ill, par. 2304(h).

Section 17, entitled “Acts constituting the practice of dentistry,” includes provisions exempting certain procedures from the operation of the Act, including the following:

“(f) The use of X-Ray machines for exposing X-Ray films of dental or oral tissues by dental hygienists or dental assistants; or
(g) The performance of any dental service by a dental assistant, if such service is performed under the supervision and full responsibility of a dentist.
For purposes of this paragraph (g), ‘dental service’ is defined to mean any intraoral procedure or act which shall be prescribed by rule or regulation of the Department.” Dl. Rev. Stat. 1987, ch. Ill, pars. 2317(10Xf), (10Xg).

Plaintiff points to the Act’s definition of “supervision” and the “full responsibility” language of section 17(10Xg) and claims those provisions raise a “question” of a statutorily created agency relationship between a supervising dentist and a dental assistant. The Act prohibits persons who are not dentists from practicing dentistry. There is an exception, however, for dental assistants. The performance of any dental service by a dental assistant is exempt from the operation of the Act, if such service is performed under the supervision and full responsibility of a dentist. A separate subsection deals with the taking of X-ray films by a dental assistant, which are not said to be the performance of a dental service, or to require the supervision of a dentist. Plaintiff has not explained how a provision which on its face exempts certain procedures from the practice of dentistry operates instead to impose vicarious liability on a dentist who is not a principal. We decline to do so.

Plaintiff next argues the trial court erred in striking the affidavit of her expert, attached to her motion for reconsideration and first submitted following the entry of summary judgment. The trial court struck that affidavit based on noncompliance with Supreme Court Rule 191. The court found the affidavit lacked evidence of the administration of an oath and contained a statement contradicting opinions expressed by the same expert in his deposition. Plaintiff claims the affidavit was offered to “clarify” previous deposition testimony of the expert incorrectly construed by the court.

The signed affidavit identifies the affiant as the same licensed dentist who gave previous deposition testimony in the case and recites that affiant, “after being duly sworn upon my oath depose and state as follows.” There is no acknowledgement, signature of a notary, or notary seal. The half-page affidavit states “the striking of a patient’s face with a rotating arm of a Panorex machine is a deviation from the standard of care by the dentist responsible, as here, Dr. Lopatka.”

Supreme Court Rule 191 does not expressly require that affidavits include evidence of the administration of an oath to the affiant. (134 Ill. 2d R. 191.) An affidavit must be signed by the deponent or his name must appear therein as the person who took the oath, in order to constitute a formal affidavit. (Theobald v. Chicago, Milwaukee & St. Paul Ry. Co. (1898), 75 Ill. App. 208, 213.) A statement which does not show that the person who made it was under oath is not -an affidavit. (Manuel v. McKissack (1978), 60 Ill. App. 3d 654, 657, 377 N.E.2d 219, 221.) An unsigned deposition which recites that the deponent testified “ ‘after having been first dully [sic] sworn,’ ” however, is sufficient as an affidavit. (Manuel, 60 Ill. App. 3d at 655, 377 N.E.2d at 220.) Most court reporters who take depositions are qualified to administer oaths, but there is no indication in this affidavit who might have been so qualified. We nevertheless conclude that the affidavit here was minimally sufficient, as the deponent’s name appears as one having taken an oath. We believe, however, the affidavit fails to meet the substantive provisions of Rule 191 and was properly stricken.

While the affiant expresses a medical opinion that the striking of the plaintiff with the X-ray machine was a deviation from the standard of care, the affidavit summarily reaches the legal conclusion Dr. Lopatka was “responsible” for this deviation without reciting any facts showing a breach of the standard of care by Dr. Lopatka. Wil son v. Clark (1981), 84 Ill. 2d 186, 417 N.E.2d 1322, held that an expert may give opinion testimony at trial without disclosing the facts underlying such opinion. Wilson, however, has no relevance to summary judgment procedure. A witness at trial can be cross-examined, but a summary judgment affidavit cannot. (Kosten v. St. Anne’s Hospital (1985), 132 Ill. App. 3d 1073, 1080, 478 N.E.2d 464, 468; Miklos v. Caliendo (1987), 161 Ill. App. 3d 132, 136, 514 N.E.2d 35, 38.) Supreme Court Rule 191 is specific in mandating that affidavits not consist of conclusions but set forth facts admissible in evidence. (134 Ill. 2d R. 191.) Supreme Court Rule 220 similarly requires that an expert disclose the bases for his opinion in advance of trial. (134 Ill. 2d R. 220.) Although no case has expressly disagreed with the first district’s opinion in Rosten, it has been suggested that later cases have been inconsistent with it. (4 R. Michael, Illinois Practice §39.3, at 249-51 & n.13 (1989), citing Purtill v. Hess (1986), 111 Ill. 2d 229, 489 N.E.2d 867; and Taylor v. City of Beardstown (1986), 142 Ill. App. 3d 584, 598, 491 N.E.2d 803, 813 (which we note states “An expert is permitted in Illinois to state an opinion on the ultimate issue”); see also Brown v. Kidd (1991), 217 Ill. App. 3d 860, 865, 578 N.E.2d 224, 229 (expert opinion affidavits may consist of conclusions); but see O’Rourke v. Oehler (1989), 187 Ill. App. 3d 572, 584-85, 543 N.E.2d 546, 555 (conclusory affidavit of opinion of human factors expert could not be considered).) Both Taylor and Purtill involved affidavits filed by defendants in medical malpractice cases. In medical malpractice cases plaintiffs generally have an affirmative duty in cases such as this, apart from any affidavits filed by defendants, to come up with expert testimony supporting their case, and their failure to do so will justify the entry of summary judgment against them. We believe that Rosten states the correct rule, and choose to follow Rosten in the absence of any direct statement by the supreme court.

The expert’s affidavit fails to allege facts indicating Dr. Lopatka has breached a standard of care owed the plaintiff. Unsupported allegations in a complaint cannot raise factual issues where the affidavits which support a motion for summary judgment are to the contrary. (Carruthers v. B.C. Christopher & Co. (1974), 57 Ill. 2d 376, 313 N.E.2d 457.) Plaintiff cannot circumvent this rule by supplementing an unsupported complaint with an expert’s conclusory affidavit. Affidavits submitted in opposition to motions for summary judgment must consist of facts admissible in evidence as opposed to conclusions, and conclusory matters may not be considered in opposition to motions for summary judgment. (O’Rourke, 187 Ill. App. 3d at 585, 543 N.E.2d at 555.) The purpose of summary judgment is to determine whether a triable issue of fact exists. (Haberer v. Village of Sauget (1987), 158 Ill. App. 3d 313, 511 N.E.2d 805.) Plaintiff cannot create a trial issue of fact by the conclusory affidavit of its expert.

Plaintiff last asserts the court abused its discretion in denying leave to file her fourth-amended complaint. Decisions whether a pleading may be amended pursuant to section 2 — 616(a) of the Code (HI. Rev. Stat. 1991, ch. 110, par. 2 — 616(a)) are committed to the sound discretion of the trial court. (Lawry’s The Prime Rib, Inc. v. Metropolitan Sanitary District of Greater Chicago (1990), 205 Ill. App. 3d 1053, 1058, 563 N.E.2d 981, 984.) In determining whether an abuse has occurred, the reviewing court is to consider whether (1) the proposed amendment would cure the defective pleading, (2) other parties would sustain prejudice or surprise by virtue of the proposed amendment, (3) the proposed amendment is timely, and (4) previous opportunities to amend the pleading could be identified. Loyola Academy v. S & S Roof Maintenance, Inc. (1992), 146 Ill. 2d 263, 273, 586 N.E.2d 1211,1215-16.

During the hearing on the motion to amend, as well as during the earlier hearing on the motion for summary judgment, plaintiff conceded that her proposed fourth-amended complaint raised no new issues or facts that had not been raised in the third-amended complaint. Given this admission, and the fact the court had earlier found the pleadings and other evidentiary documents presented no genuine issue as to any material fact, there was no reason to allow the filing of a fourth-amended complaint. We find no abuse of discretion in the trial court’s denial of plaintiff’s motion to amend. The judgment of the circuit court is affirmed.

Affirmed.

McCULLOUGH and GREEN JJ., concur.


text:
    RANDALL L. STEWART et al., Plaintiffs-Appellants, v. JEFFREY L. THRASHER et al., Defendants-Appellees.
    Fourth District
    No. 4 — 92—0524
    Opinion filed March 25, 1993.

      Ray Moss, of Ray Moss & Associates, P.C., of Clinton, for appellants.
    No brief filed for appellees.
   JUSTICE KNECHT

delivered the opinion of the court:

Randall and Bonnie Stewart filed an action seeking damages or contract rescission due to negligent misrepresentation, mutual mistake of fact, breach of warranty of habitability, and violation of the Consumer Fraud and Deceptive Business Practices Act (111. Rev. Stat. 1989, ch. 121V2, par. 261 et seq.). After a bench trial on the merits, the circuit court entered judgment in favor of the defendants, Jeffrey and Liana Thrasher, on all counts. On appeal, the plaintiffs have abandoned the breach of warranty of habitability and consumer fraud theories, but contend the circuit court’s determination there was no negligent misrepresentation, or in the alternative, mutual mistake of fact, was against the manifest weight of the evidence. The defendants have not filed an appellee’s brief; however, the record is simple and the issues are clear, so we will address the merits. First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 133, 345 N.E.2d 493, 495.

The circuit court’s commendably thorough memorandum decision and order has helped us in the review of this case. In this nine-page, single-spaced order, the circuit court details its perception of the issues and its understanding of applicable law, applying that law to extensive findings of facts and setting forth the rationale for its conclusions. We affirm.

The house at issue had previously been owned by Jeffrey’s mother and was bought at an auction by the Thrashers in 1990 for $7,000. The Thrashers, and Jeffrey’s brother Leonard, made repairs to the interior of the home. The rooms were dry-walled and painted, and baseboards, carpeting, the sill plate, and part of the foundation were replaced. There was conflicting testimony regarding whether Jeffrey had been in the crawl space making repairs; the circuit court found that the evidence established that he had. The Thrashers placed an ad in the newspaper, offering the home for sale at a price of $20,000. The Stewarts responded to the ad, viewed the home on two occasions, and then made an offer. The Thrashers and the Stewarts agreed upon a price of $17,000. There was no written contract of sale, and the parties testified, and plaintiffs concede in their brief, the parties did not discuss termite infestation.

The Stewarts’ lender required the property to be inspected for termite infestation. Jeffrey’s mother had previously had the property inspected for termite infestation by Robert Monkman in 1988. In January 1991, the Thrashers hired Monkman to reinspect the property in order to satisfy the requirements of the Stewarts’ lender.

Monkman testified he is disabled and is occasionally self-employed as a real estate broker and pest inspector. Monkman was not licensed or trained in discovering pest infestation. Monkman inspected the crawl space, interior of the home, and the attic. The report completed by Monkman consisted of a form, providing boxes, next to explanations, which were to be checked if appropriate. The form provided boxes next to the following explanations:

“A. Visible evidence of wood destroying insects was observed. No control measures were performed. Insects observed: _; B. No visible evidence of infestation from wood destroying insects was observed; C. Visible evidence of infestation was noted; proper control measures were performed; D. Visible damage due to_has been observed in the following areas_; E. Visible evidence of previously treated infestation, which is now inactive, was observed.”

Monkman checked only box “B.” Monkman noticed damage caused by termites or other wood-damaging insects, as well as wood rot. He did not consider the damage to be serious, so he did not note it in his report. Monkman testified he did not check box “D,” indicating visible damage, because he only uses box “D” in the case of Federal Housing Authority (FHA) or Veterans Administration (VA) loans. If the buyer is not getting a FHA or YA loan, Monkman does not report visible damage, even if he notices it during the course of his inspection. Monkman additionally testified he noticed possible carpenter ant damage, but did not note it on his report because it was not required. Prior to the closing, the Stewarts went to the property to walk around the outside of the structures. They noticed damage to some of the siding. The following day, they called their lender to determine whether the termite inspection report had been received. The lender indicated it had, and it indicated there was no infestation reported. On February 16, 1991, the parties closed on the property. All of the documents, including the termite report, were read to the parties, and the Stewarts signed a real estate settlement statement stating they would accept the property in an “as is” condition.

In April, the Stewarts discovered what they believed to be termite damage in the crawl space. They contacted Orkin and Terminex. Dennis Warf, a Terminex inspector, inspected the property on May 6, 1991. Warf testified he had taken a three-month pest-control training program and was licensed by the Department of Public Health. He testified in detail as to the methods he employed in inspecting the home. Warf stated he found some active infestation, and extensive structural damage due to prior infestation. He additionally testified termites are not as active in cold weather as they are in warm weather; therefore, they would have been more difficult to discover when Monkman inspected the home in January. However, Warf testified that in his professional opinion based upon the visible damage to the home, a pest inspector should expect active termite infestation when the weather becomes warmer. Warf testified he would not have checked box “B” on the form utilized by Monkman. Rather, Warf testified he would have checked box “D” on the form, and recommend the building be examined by a qualified building expert. Warf testified it is a standard in the trade of pest inspection that an inspector would record termite damage in the report.

The trial court found the Stewarts and the Thrashers had entered into an oral contract for the purchase of the property for a price of $17,000, but did not agree upon any other contractual terms or conditions. At the closing, the Stewarts signed a settlement statement which set forth the home was being accepted in an “as is” condition. The circuit court found there had been no misrepresentation because there had been no evidence to establish the Thrashers were aware of the termite damage. The circuit court found there had been no mutual mistake of fact because the parties had not agreed an element of the contract was that the property would be free from termite infestation and damage.

Plaintiffs’ first contention, is the trial court erred in determining there had been no misrepresentation. On appeal and in plaintiffs’ complaint, the misrepresentation is titled as “negligent misrepresentation.” However, the misrepresentation alleged by plaintiffs bears closer resemblance to fraudulent misrepresentation and was treated as such by the trial court. Negligent misrepresentation involves a breach of the duty to use due care in obtaining and communicating information upon which others may reasonably be expected to rely in the conduct of their economic affairs. (Lehmann v. Arnold (1985), 137 Ill. App. 3d 412, 420, 484 N.E.2d 473, 479.) A negligent misrepresentation is a representation the maker believes to be true, but is, in fact, false. (Lehmann, 137 Ill. App. 3d at 421, 484 N.E.2d at 479.) Fraudulent misrepresentation involves the making of a representation which the maker knows to be false, or is made with reckless disregard for its truth or falsity. (Gerill Corp. v. Jack L. Hargrove Builders, Inc. (1989), 128 Ill. 2d 179, 193, 538 N.E.2d 530, 536.) The major difference between the two involves the state of mind of the maker of the statement.

Plaintiffs here could not as a matter of law succeed under a negligent misrepresentation theory against the Thrashers, because the Thrashers are not in the business of providing information, nor were they under a public duty to do so. The Stewarts’ evidence of damages was limited to economic losses incurred due to the termite infestation. The landmark case of Moorman Manufacturing Co. v. National Tank Co. (1982), 91 Ill. 2d 69, 435 N.E.2d 443, and its progeny, severely limited the availability of recovery for purely economic loss, under a tort theory, in contract actions. In the subsequent case of Redarowicz v. Ohlendorf (1982), 92 Ill. 2d 171, 178, 441 N.E.2d 324, 327, the court found that while the commercial expectations of the plaintiff in a contract action had not been met by the defendant, requiring plaintiff to incur additional expenses for conditions that were less than what was bargained for, such economic losses could not be recovered under a negligence theory. The Moorman court did, however, leave open the possibility a plaintiff in a contract action could recover economic losses resulting from negligent misrepresentation, where the person making the representation is in the business of providing information. (Moorman, 91 Ill. 2d at 88-89, 435 N.E.2d at 452; see also Lehmann, 137 Ill. App. 3d at 420, 484 N.E.2d at 479.) In Lehmann, we additionally determined a plaintiff in a contract action could recover economic losses resulting from the negligent misrepresentation of one under a public duty to provide information. (Lehmann, 137 Ill. App. 3d at 421, 484 N.E.2d at 479.) The Lehmann case concerned information filed pursuant to statute with the county recorder, which became a matter of public record.

We have determined the provider of a termite inspection report can be liable for economic damages stemming from negligent misrepresentation. (Perschall v. Raney (1985), 137 Ill. App. 3d 978, 984-85, 484 N.E.2d 1286, 1290.) However, plaintiffs’ action in the present case is not against Monkman, the provider of the termite inspection report; rather, the action is against the sellers of the property. Unlike the provider of a termite inspection report, the seller of a home is not in the business of providing information. Likewise, unlike the defendants in Lehmann, the Thrashers were under no statutory duty to file information with a government or municipal authority, nor was information made a matter of public record. Hence, the Stewarts cannot recover from the Thrashers for purely economic loss resulting from alleged negligent misrepresentation.

Although plaintiffs’ argument is framed in terms of negligent misrepresentation, the gist of plaintiffs’ appellate argument appears to be the circuit court erred in finding there had been no fraudulent misrepresentation. Accordingly, we review the circuit court’s ruling on the issue of fraudulent misrepresentation. Although the reviewing court will review facts as well as law after a bench trial, the judgment of the trial court will only be set aside if it is demonstrated that judgment is against the manifest weight of the evidence, i.e., it is clearly evident a conclusion opposite to that reached by the circuit court was the proper disposition. (Stone v. City of Arcola (1989), 181 Ill. App. 3d 513, 528, 536 N.E.2d 1329, 1338.) A trial court’s determination regarding whether the elements of fraudulent misrepresentation are present is a factual one and, thus, will not be disturbed unless it is contrary to the manifest weight of the evidence. Gerill, 128 Ill. 2d at 192-93, 538 N.E.2d at 536.

To sustain a claim of fraudulent misrepresentation, plaintiff must prove (1) a false statement of material fact; (2) that the party making the statement knew the statement was false or believed it to be untrue; (3) the party to whom the statement was made had a right to rely on that statement and did, in fact, rely on it; (4) the statement was made for the purpose of inducing the other party to act; and (5) that reliance by the person to whom the statement was made led to his injury. Farm Credit Bank v. Isringhausen (1991), 210 Ill. App. 3d 724, 728, 569 N.E.2d 235, 238.

In the present case, both parties testified the Thrashers made no affirmative representations to the Stewarts regarding the absence of termite infestation or damage due to such infestation. However, a misrepresentation may consist of the concealment of the truth as well as the assertion of what is false. When the failure to disclose a material fact is calculated to induce a false belief, the distinction between concealment and an affirmative misrepresentation is tenuous. Even if a statement is technically true, it may still be a misrepresentation where it omits qualifying material, because a half-truth may be more misleading than an outright lie. (Lindsey v. Edgar (1984), 129 Ill. App. 3d 718, 723, 473 N.E.2d 92, 96.) For concealment to amount to a misrepresentation, it must have been done with an intent to deceive under circumstances creating an opportunity and a duty to speak. (Lindsey, 129 Ill. App. 3d at 723, 473 N.E.2d at 96.) The concealed information must have been such that the other party would have acted differently had he been aware of it. Huls v. Clifton, Gunderson & Co. (1989), 179 Ill. App. 3d 904, 909, 535 N.E.2d 72, 76.

Thus, in the case of concealment, the analysis is modified, and in order to prove the concealment amounted to a fraudulent misrepresentation the plaintiff must prove: (1) the concealment of a material fact; (2) the concealment was intended to induce a false belief, under circumstances creating a duty to speak (Lindsey, 129 Ill. App. 3d at 723, 473 N.E.2d at 96); (3) the innocent party could not have discovered the truth through a reasonable inquiry or inspection, or was prevented from making a reasonable inquiry or inspection, and relied upon the silence as a representation that the fact did not exist; (4) the concealed information was such that the injured party would have acted differently had he been aware of it; and (5) that reliance by the person from whom the fact was concealed led to his injury. Huls, 179 Ill. App. 3d at 909, 535 N.E.2d at 76.

In the present case, the circuit court essentially determined there had been no misrepresentation or concealment, because the Thrashers were also unaware of the termite infestation and damage. There can be no concealment of a fact if the party alleged to be concealing the fact is unaware of it. On appeal, plaintiffs allege the Thrashers were aware of the termite infestation and damage because Jeffrey had been in the crawl space, the remodeling done by the Thrashers had termite damage behind it, it seems incredible Jeffrey would not have asked his mother what the results of a prior termite inspection report had been, and Monkman told Jeffrey that there was termite damage.

The circuit court’s finding that the evidence did not establish the Thrashers became aware of the termite damage while remodeling the home was not against the manifest weight of the evidence. The plaintiffs allege that since Jeffrey had been in the crawl space, he must have been aware there was termite damage, which was visible in the crawl space. The plaintiffs additionally allege because Randall could see through to the outside of the house when he removed the register cover, and found damage under linoleum in a closet, the Thrashers must have noticed these defects when remodeling the property, and the defects would have put the Thrashers on notice of damage and possible infestation.

The evidence at trial established Jeffrey had been in the crawl space to repair the foundation, and along with his wife and brother, remodeled the interior of the home. The circuit court found no evidence was introduced to establish whether Jeffrey had been in a position to observe any of the termite damage, or the proximity of the area where the foundation had been replaced to the area damaged by termites. The circuit court additionally found the evidence did not establish the items replaced by the Thrashers when improving the interior of the property had termite damage, or that there was visible damage in the areas. It was within the province of the circuit judge, who heard the testimony and viewed the exhibits, to make such findings. Our review of the evidence does not clearly indicate an opposite conclusion should have been drawn.

Similarly, the circuit court’s findings regarding the prior termite inspection report and the alleged conversation between Monkman and Jeffrey were supported by the evidence. Where there is a conflict in the witnesses’ testimony, the reviewing court will not substitute its judgment for that of the trier of fact, whose function it is to determine the credibility of the witnesses’ testimony and the inferences to be drawn therefrom. (Harris v. Day (1983), 115 Ill. App. 3d 762, 769, 451 N.E.2d 262, 265.) Although plaintiffs now allege it is incredible that Jeffrey would not have questioned his mother regarding a prior termite inspection of the property, no evidence was introduced regarding this prior termite report at trial. In fact, the circuit court stated in its ruling, “[t]he results of this inspection are not entirely clear to the court and little evidence was presented concerning it.” Had the plaintiffs wished the inference that defendants knew of termite damage to be drawn from the prior inspection report, they should have introduced evidence regarding this prior report at trial. We cannot now, on appeal, find Jeffrey had knowledge there was termite damage to the property based on a prior report, especially when no evidence was introduced regarding whether the report even disclosed the existence of termite damage.

Finally, plaintiffs allege Jeffrey knew of termite damage because Monkman told him there was termite damage to the house. Jeffrey testified Monkman did not tell him there was termite damage to the house. Monkman testified he did not tell Jeffrey there was termite damage to the house. His testimony was impeached with his deposition testimony, in which he stated he had told Jeffrey there was evidence of previous damage of termites. The circuit court determined it was not clear when or where the conversation between Jeffrey and Monkman took place, or what the substance of the conversation might have been. It was within the province of the court to determine the inferences to be drawn from the existence of the prior report, the contents of which were unknown, and to weigh the credibility of Monkman and Jeffrey. We do not find the circuit court’s determination on these matters was against the manifest weight of the evidence, and we will not substitute our judgment for that of the circuit court.

The plaintiffs’ final contention is the circuit court erred in finding there had not been a mutual mistake of fact. Plaintiffs allege that because the termite inspection report indicating no evidence of infestation was provided to them at the closing, they agreed to take the house free from termite infestation and damage, but “as is” in all other respects. In order to establish mutual mistake warranting rescission of a contract, plaintiff must show by clear and positive evidence that (1) both parties were mistaken regarding a material feature of the contract; (2) this matter is of such grave consequence that enforcement of the contract would be unconscionable; (3) the plaintiff’s mistake occurred despite the exercise of reasonable care; and (4) the other party can be placed in the status quo. Keller v. State Farm Insurance Co. (1989), 180 Ill. App. 3d 539, 548, 536 N.E.2d 194, 200.

The circuit court’s determination that the plaintiffs did not establish that any mistake regarding the termite infestation and damage was a material element of the contract was not against the manifest weight of the evidence. In order to be material, the condition must be essential to one of the parties and must be mutually agreed upon and understood by the parties. Giacomazzi v. Urban Search Corp. (1980), 86 Ill. App. 3d 429, 432, 407 N.E.2d 621, 624.

The circuit court determined the parties did not agree a successful termite inspection report was a condition of the sale of the property. Whether an oral contract exists, as well as its terms and conditions and intent of the parties, are questions of fact. A reviewing court may not reverse a judgment of the circuit court just because different conclusions could be drawn. (In re Estate of Kern (1986), 142 Ill. App. 3d 506, 514, 491 N.E.2d 1275, 1280.) The circuit court found the parties entered into an oral contract for the purchase of the house for $17,000, and no other terms or conditions were set forth in the oral contract for sale. This finding is supported by the evidence. Both the plaintiffs and defendants presented testimony there was no discussion of termite infestation or damage during either of the two times plaintiffs toured the home. During the telephone conversation in which the oral contract for sale was entered into, the Stewarts did not state a satisfactory termite inspection report would be a condition to the purchase of the property. In fact, at no time did the Stewarts request that a termite inspection be performed. It was only at their lender’s request such an inspection was conducted. The plaintiffs called their lender a few days before the closing to inquire whether a satisfactory termite report had been received. Plaintiffs allege they made this inquiry because, upon viewing the exterior of the home, they had become concerned there might be termite infestation. Whether this was the reason, or whether plaintiffs merely wished to ensure that all requirements had been complied with and the closing would go through as planned, was not specifically determined by the circuit court. However, even if plaintiffs’ allegation were accepted as true, a concern of the plaintiffs which developed after the contract had been entered into and was never communicated to the other parties is not an agreed-upon element of the contract.

The circuit court additionally determined the conduct of the plaintiffs, in agreeing to take the property “as is,” did not indicate they would not have purchased the house had they known of the infestation and damage. Plaintiffs testified they knew the house needed repairs. The fact the house needed repairs was reflected in the $17,000 purchase price for the two-story home. However, plaintiffs did not request to have the home professionally inspected to determine the extent of the repairs which would be required. Nor did the plaintiffs perform any significant inspection of their own. On the contrary, they made two short visits to the property before making an offer to purchase. During these visits, much of the time was spent sizing up and measuring the rooms to determine whether they would accommodate the plaintiffs’ furniture. This conduct of the plaintiffs does not indicate their willingness to purchase the property was dependent upon the type and extent of the improvements which they would be required to make. Finally, at the closing the plaintiffs signed a settlement sheet agreeing to accept the property “as is.” Plaintiffs allege they relied upon the termite inspection report in signing the “as is” settlement sheet, and wished to accept the property, free of termite damage infestation and “as is” in all other respects. Had plaintiffs wished to incorporate a guarantee the home was free from termite damage and infestation into the settlement sheet, they should have requested a provision be added to that effect. They did not.

We find the circuit court correctly determined the plaintiffs did not establish that the absence of termite damage and infestation was a material element of the contract.

The judgment of the circuit court of De Witt County is affirmed.

Affirmed.

McCULLOUGH and LUND, JJ., concur.


author: PRESIDING JUSTICE STEIGMANN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KELVIN A. MANUEL, Defendant-Appellant.
    Fourth District
    No. 4 — 92—0478
    Opinion filed March 4, 1993.

      Daniel D. Yuhas and Lawrence Bapst, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Lawrence R. Fichter, State’s Attorney, of Decatur (Norbert J. Goetten and Robert J. Biderman, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE STEIGMANN

delivered the opinion of the court:

In November 1991, the State charged defendant, Kelvin A. Manuel, with two counts of aggravated criminal sexual assault (111. Rev. Stat. 1991, ch. 38, par. 12 — 14(bXl)). Count I alleged that defendant committed sexual penetration by placing his finger in the vagina of the victim, and count II alleged that he committed sexual penetration by placing his penis in the vagina of the victim.

In March 1992, defendant waived a jury trial and stipulated to the evidence that the State would present at trial regarding count II. Before the trial court accepted that stipulation and found defendant guilty of the one count of the information to which the stipulation applied, the court admonished defendant in accordance with Supreme Court Rule 402 (134 111. 2d R. 402). After the court entered its finding that defendant was guilty, it dismissed count I on the State’s motion.

In May 1992, the trial court conducted a formal sentencing hearing and sentenced defendant to 14 years in prison. Defendant appeals and presents as his sole argument that the trial court failed to properly inform him under Supreme Court Rule 605(b) (134 111. 2d R. 605(b)) that he was required to file a motion to withdraw his guilty plea in order to appeal his conviction and sentence.

We affirm.

The record reveals that after the trial court sentenced defendant, it admonished him under the provisions of Supreme Court Rule 605(a) (134 Ill. 2d R. 605(a)). On appeal defendant argues that because he pleaded guilty, the trial court should have admonished him pursuant to Rule 605(b), which requires the trial court to inform a defendant of the procedural steps he must take before he may appeal from a judgment and sentence entered on a plea of guilty. (See also Rule 604(d) (134 Ill. 2d R. 604(d)).) The State responds that although the record is not as clear as it could be, it nonetheless shows that defendant was convicted of aggravated criminal sexual assault at a stipulated bench trial rather than upon a plea of guilty. Thus, the State asserts that defendant was properly advised by the trial court of his appeal rights in accordance with Rule 605(a), which applies to defendants who have been convicted after pleading not guilty. We agree with the State.

The March 20, 1992, hearing began with defense counsel informing the court that the case would now “be a negotiated open plea; a finding of guilty to Count II of the Information. It’s my understanding the [case] will be open plea as far as sentencing, and that they will move to dismiss Count I.”

After the use of the term “negotiated open plea” by defense counsel, it would have been preferable for the trial court to clarify exactly what the nature of the proceeding was going to be. Nonetheless, subsequent statements by the court and counsel make clear that this proceeding was not a guilty plea. For example, after the State’s Attorney stated in great detail what the various State’s witnesses would testify to if called, the trial court asked defense counsel if he agreed that the State’s witnesses would so testify, and he responded: “Your Honor, I believe that is the case that the People would present at trial, and that is the reason for us entering this finding.” (Emphasis added.)

At that same hearing, the trial court asked counsel for their advice on the procedures to be followed, as follows: “Counsel, in this type of a factual finding of guilty, does the court normally advise of the other rights that a defendant enjoys?” The prosecutor responded affirmatively, and defense counsel said nothing. The court then proceeded to provide defendant with the Supreme Court Rule 402 admonitions (134 Ill. 2d R. 402). The court concluded the hearing by stating the foUowing: “Based upon the statement of evidence which would be presented in this cause, finding entered by the court that it has been proven beyond a reasonable doubt that the defendant did in fact commit the offense of aggravated criminal sexual assault in the manner and in form as charged in Count II of the Information.”

At the May 15, 1992, sentencing hearing, after the trial court sentenced defendant to 14 years in prison, the court showed it was aware of its duty under Rule 605 to admonish defendant when it again asked counsel for their advice as follows: “Counsel, do you agree that the admonition under Rule 605, is pursuant to subparagraph (a), after a plea of not guilty"!” (Emphasis added.) The prosecutor again responded affirmatively, and defense counsel said nothing. Thereafter, the trial court admonished the defendant in accordance with Rule 605(a).

In People v. McIntyre (1991), 221 Ill. App. 3d 810, 812, 583 N.E.3d 99, 100, this court addressed a similar situation in which a defendant received a stipulated bench trial, was convicted of violating his bail bond, and appealed on the ground that because the stipulated bench trial was tantamount to a guilty plea, the trial court failed to properly admonish him pursuant to Supreme Court Rule 402. Distinguishing the facts in the case then before it from those in People v. Horton (1991), 143 Ill. 2d 11, 570 N.E.2d 320, the McIntyre court held that the defendant had in fact received a stipulated bench trial and did not plead guilty because “(d]efendant did not stipulate or concede that the facts related by the assistant State’s Attorney would be sufficient to warrant a finding of guilt beyond a reasonable doubt.” (McIntyre, 221 Ill. App. 3d at 813, 583 N.E.2d at 101.) Accordingly, this court found no error with the trial court for failing to comply with Rule 402.

Of particular significance to the case before us is the following statement from McIntyre’.

“Even though the parties concede a stipulated bench trial is tantamount to a guilty plea, it is not argued, nor do we find, that a motion equivalent to a motion to withdraw a guilty, plea must first be presented to and considered in the trial court before this court has jurisdiction to address the issues arising from the stipulated bench trial. People v. Wilk (1988), 124 Ill. 2d 93, 529 N.E.2d 218; see 134 Ill. 2d R. 604(d).” (McIntyre, 221 Ill. App. 3d at 812, 583 N.E.2d at 100.)

The above quote has particular significance for the present case because if it is true that a defendant convicted in a stipulated bench trial need not, under Rule 604(d), first file a motion equivalent to a motion to withdraw a guilty plea in order to perfect an appeal from that conviction, then it must follow that the trial court here had no obligation, under Rule 605(b), at the time defendant was convicted pursuant to the stipulated bench trial to advise him of procedural steps he must take (applicable to defendants who pleaded guilty) if he wishes to take an appeal. The crux of defendant’s position in this case is that the trial court was so obligated, and we reject it. Instead, we hold that if a stipulated bench trial is really that — in accordance with the Horton case — and not a mislabeled guilty plea, then the trial court should admonish the defendant upon conviction, as happened in the present case, pursuant to Rule 605(a). That rule contains the admonitions the trial court should give to defendants who have been convicted after pleading not guilty.

Last, we note that many trial courts, out of a sense of caution, choose to give Rule 402 admonitions (applicable to defendants who offer to plead guilty) to defendants who are participants in a stipulated bench trial. We hold that if the proceedings are in fact a stipulated bench trial in accordance with the Horton case, then the fact that the trial court admonished the defendant under Rule 402 does not transform the stipulated bench trial into a guilty plea. The situation is analogous to one in which police officers, out of a sense of caution, give Miranda warnings to a person conversing with the officers even though that person is not in custody. The fact that the officers elect to do so does not transform a noncustodial situation into a custodial one.

For the reasons stated, we affirm the judgment of the circuit court.

Affirmed.

McCULLOUGH and COOK, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. MELVIN A. SHEPHERD, Defendant-Appellee.
    Fourth District
    No. 4— 92—0559
    Opinion filed March 11, 1993.

      Thomas J. Brown, State’s Attorney, of Pontiac (Norbert J. Goetten, Robert J. Biderman, and Rebecca L. White, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Carey J. Luckman, of Pontiac, for appellee.
   PRESIDING JUSTICE STEIGMANN

delivered the opinion of the court:

In April 1992, the State charged defendant, Melvin A. Shepherd, with driving while under the influence of alcohol (DUI) (111. Rev. Stat. 1991, ch. 951/2, par. 11 — 501) and improper lane usage (111. Rev. Stat. 1991, ch. 951/2, par. 11 — 709). Prior to trial, defendant moved to suppress evidence obtained when the police stopped defendant’s truck. In June 1992, the trial court granted defendant’s motion, and the State appeals.

We reverse.

I. Background

Sergeant Timothy Henson of the Dwight police department was the only witness to testify at the hearing on defendant’s motion to suppress. He said that in the early morning hours of April 25, 1992, he and Officer Dolan of the Dwight police department received a call about some unruly men at the Dwight Auto Truck Plaza. Henson and Dolan went there and spoke with Wanda Jacobs, a waitress at the truck stop who had called the police. She told them that one of the unruly men had left, while the other (defendant) remained in a booth in the restaurant.

Jacobs told Henson that she had approached defendant to ask him if he wanted a refill of coffee. Defendant responded that he did not want a cup of coffee, but he did want a “blow job.” Defendant also started calling another waitress, “Hey, blondie; hey, blondie.” Jacobs added that defendant and the other man did not threaten or touch anyone; they just behaved obnoxiously. When she had the dishwasher at the restaurant ask them to leave, the other man left, but defendant stayed. Jacobs then called the police.

As Jacobs spoke with Henson, defendant went to pay his check. Because defendant was leaving, Henson decided to have no contact with defendant at that point. Instead, Henson left the restaurant and parked nearby on the southbound entrance ramp to U.S. Route 66 in case any further problems arose.

Henson saw defendant leave the restaurant, get in and out of his pickup truck, reenter the restaurant, and reemerge a few minutes later with another man. They got into his truck, and defendant drove east on Route 17, which soon thereafter intersects U.S. Route 66.

Just before passing the southbound Route 66 entrance ramp on which Henson was parked, defendant made a quick, wide left turn onto the entrance ramp without signalling. Henson thought that defendant likely had almost passed the entrance ramp when he realized he wanted to turn there. After defendant drove past Henson’s squad car on the entrance ramp, Henson followed him. Defendant stopped at the stop sign before entering Route 66, and then drove south on Route 66.

In that area, Route 66 has four lanes: two in each direction, separated by a median. As defendant drove south in the right lane on Route 66, Henson saw defendant’s truck weave, crossing the white centerline and returning to the right lane three times: twice with just both left wheels, and the third time with one-third of the truck. A few hundred yards after defendant weaved for the third time, Henson activated the lights on his squad car and pulled over defendant’s truck.

When Henson walked up to defendant’s truck, Henson noticed the strong smell of alcoholic beverages emanating from the truck’s passenger compartment. In addition, when he asked defendant for his driver’s license and insurance card, Henson noticed the strong smell of alcoholic beverage on defendant’s breath. Henson thus asked defendant and the passenger to get out of the truck and walk to the rear of the truck. Henson noticed that defendant stumbled and used the truck to regain his balance along the way.

After noticing defendant’s bloodshot eyes, Henson asked defendant to perform some field sobriety tests. Although defendant passed the first two tests, he could not pass the third test — the one-leg stand — despite several efforts to pass it. Henson then arrested defendant for DUI and issued him a citation.

After Henson testified, defendant’s counsel argued in support of his motion that “the stop was a subterfuge. It was completely pre-textual. Absolutely ridiculous.” He also argued that Henson “laid [in wait] for [defendant]. He waited for them to get into the vehicle, and he wants to make DUI cases.” In response, the prosecutor argued that Henson’s observations of defendant’s driving justified the stop.

In its ruling on defendant’s motion, the trial court first noted that once Henson had stopped defendant, “there was enough evidence to indicate that the [defendant was probably intoxicated.” However, the court stated that it regarded “whether [Henson] could stop the [truck] to begin with” as a very close question. The court then made the following comments:

“Short of probable cause, *** the only allowable justification [for stopping the truck] would be some sort of Terry-type stop, reasonable suspicion that crime was afoot.
Now, here there’s not probable cause. The reason *** for stopping the car wasn’t because [he] failed to show a turn signal. The reason wasn’t because he committed improper lane usage. ***
Here, the reason [for stopping the vehicle] was [the] obnoxious behavior back at the restaurant, turning wide with no turn signal at an intersection^] [a]nd once out on [Route] 66, *** having passed gently over the centerline three times and back[.] [I]n a normal case I would think this [evidence] would be enough under Terry to stop. I think an officer, given the time of day here, early morning hours, seeing peculiar driving, I think an officer would have a right and maybe even a duty to stop that vehicle and find out[: T]s the guy drunk, is the guy asleep, is there something wrong, or is he just a lousy driver.[’]
Here[,] though, he had to know all that because he had just been with the fellow at the restaurant. So he [must have already known] whether the person was drunk or not; and if he was drunk, he wouldn’t have let him get in the car. He would have had to assume[, ‘]we didn’t have a fellow falling asleep here.[’] ***
I guess the way I look at it, maybe I’m looking at it wrong, [but] it can’t be a Terry stop to find out what was going on because the officer knew what was going on. He just talked to the guy.
So here I don’t think it can be reasonable suspicion that crime is afoot here because he knew all about the fellow having just been with him or talked to him briefly, [and] seen him there at [the] restaurant.
So here *** all I can look at is[:] is there probable cause to stop the guy for committing some offense? Well, it wasn’t for [failing to use his] turn signal because that incident had passed. So here I guess I can’t justify *** this stop.” (Emphasis added.)

II. Analysis

When reviewing a trial court’s findings of fact on a suppression motion, an appellate court will not reverse unless those findings are manifestly erroneous. (People v. Brown (1990), 136 Ill. 2d 116, 125, 554 N.E.2d 216, 220; People v. Gorman (1991), 207 Ill. App. 3d 461, 468, 565 N.E.2d 1349, 1353.) However, when neither the facts nor the credibility of the witnesses is contested, and an appellate court instead reviews only the trial court’s legal conclusions on a suppression motion, the appellate court need not afford the trial court’s decision deference and may instead review that decision de novo. In re D.G. (1991), 144 Ill. 2d 404, 408-09, 581 N.E.2d 648, 649.

Initially, we question the trial court’s factual finding that Henson must have known whether defendant was drunk because Henson talked briefly to defendant at the restaurant. Henson, the only witness to testify at the suppression hearing, did not say that he spoke to or even approached defendant at the restaurant. The court did not indicate that it did not believe Henson’s testimony; instead, it apparently did not correctly remember that testimony. Because Henson’s testimony shows that he never spoke to or interacted with defendant at the restaurant, the court had no basis to conclude that Henson knew if defendant was drunk before defendant left the restaurant.

However, we need not definitively determine whether this factual finding rises to the level of manifest error because — pursuant to our de novo review on matters of law — we hold that the trial court’s legal conclusions were incorrect regardless of how the above factual issue would be resolved. Even if Henson had known that defendant was drunk at the restaurant, this knowledge would have had nothing to do with the constitutionality of the traffic stop of defendant that Henson later made.

Henson testified that he observed defendant commit at least one (and perhaps several) minor traffic violations, and the trial court expressed no disbelief regarding that testimony (and we add that we see no reason why it should have). At a minimum, Henson saw defendant turn left without signalling, thereby violating section 11 — 804(b) of the Illinois Vehicle Code (111. Rev. Stat. 1991, ch. 95V2, par. 11 — 804(b)). That observation, without more, sufficed to provide Henson with probable cause to stop defendant’s car. People v. Sorrells (1991), 209 Ill. App. 3d 1064,1069, 568 N.E.2d 497, 500.

We also emphasize that the delay between his witnessing this traffic violation and his pulling defendant over in no way vitiates the probable cause Henson possessed. The delay merely shows that Henson legitimately used discretion in not stopping defendant at Henson’s first opportunity to do so. Section 107 — 2(lXc) of the Code of Criminal Procedure of 1963 (Code) provides that a peace officer may arrest a person when he has reasonable grounds to believe that the person is committing or has committed an offense. (111. Rev. Stat. 1991, ch. 38, par. 107 — 2(lXc).) Thus, when a peace officer has reasonable grounds to believe a person has committed a crime, this section clearly gives that officer discretion to arrest that person immediately, later, or perhaps never.

Certainly, this discretion does not expire within a few minutes of witnessing the offense occur. Indeed, Professor LaFave has noted that delay affects only probable cause to search, not probable cause to arrest:

“The most obvious difference between probable cause to arrest and probable cause to search is that the former is concerned with historical facts while the latter is concerned with facts relating to a presently existing condition. If a police officer is summoned to a crime scene and is told by the victim and several witnesses that an armed robbery has occurred and that a particular person known to them by name committed it, there then exists probable cause to arrest that person. Assuming no contrary facts later come to light, this probable cause will continue to exist for an indefinite period.” (2 W. LaFave, Search & Seizure §3.7(a), at 75 (2d ed. 1987).)

In addition, our supreme court has held that pre-arrest delay raises no constitutional concerns unless the defendant can clearly show that the delay caused actual and substantial prejudice to defendant’s ability to present a defense. See People v. Lawson (1977), 67 Ill. 2d 449, 457-59, 367 N.E.2d 1244, 1248 (no prejudice proved in mere self-serving assertions that delay caused problems in reconstructing the events at issue).

In the present case, Henson’s election not to immediately pull defendant over had no impact on the constitutionality of his pulling defendant over a few minutes later. Accordingly, we hold that Officer Henson’s probable cause to stop defendant for failing to signal before turning did not expire (nor even diminish) when he chose not to immediately stop defendant.

Defendant argues that Henson’s stop for minor traffic violations constituted a mere “pretext” for investigating other, unrelated criminal activity. Indeed, the trial court’s reference to the delay between Henson’s witnessing defendant commit the traffic violation and Henson’s eventual stop suggests that the court might have bought defendant’s “mere pretext” argument.

However, this court has emphatically rejected the “pretextual” stop analysis on which defendant relies. (See People v. Flores (1992), 231 Ill. App. 3d 813, 823-25, 596 N.E.2d 1204, 1211-12, quoting Garcia v. Texas (Tex. Crim. App. 1992), 827 S.W.2d 937, 943-44.) When reviewing whether probable cause or reasonable suspicion to stop existed, a court should only evaluate whether specific, articulable facts support the stop, not whether the police officer held some other furtive or pretextual reason for the stop. See People v. Williams (1992), 233 Ill. App. 3d 1005, 1010, 599 N.E.2d 1033, 1036 (“permissible for police officers to arrest a suspect on a minor offense and conduct questioning on a more serious offensejj] and the arrest will not be deemed pretextual as long as the arrest on the minor offense is valid”); People v. Perry (1990), 204 Ill. App. 3d 782, 786, 562 N.E.2d 618, 621 (constitutionality of stop depends on “whether the stop is objectively reasonable, and, if so, it is not invalidated solely because the officer acted out of an improper or dual motivation”).

The trial court’s pretextual analysis suggests that an officer may not stop someone for a traffic offense — for which he does not normally stop someone — merely because that officer has information that leads him to believe that the person stopped may be involved in more serious criminal activity. We disagree. This analysis adds only irrelevant clutter when the court assesses whether the police had probable cause to make the arrest at issue. Further, this analysis would shift the court’s attention to the difficult task of trying to determine — as defendant here argues — the “furtive state of mind” of the police officers involved. (See Flores, 231 Ill. App. 3d at 823-25, 596 N.E.2d at 1211-12, quoting Garcia, 827 S.W.2d at 943-44.) Last, this analysis amounts to attempted judicial micromanagement (in hindsight, of course) of what may well be the prudent exercise of police discretion, as demonstrated in this case.

After defendant left the restaurant, Henson saw him take a quick, wide turn without signalling. Henson described it as if defendant realized that he had almost passed where he wanted to turn and then made the turn just in time. Because an innocent explanation could be given for defendant’s erratic turn, Henson, apparently using his discretion, decided to not stop defendant at that time. Nonetheless, Henson decided to follow defendant to see if anything else would occur to warrant stopping defendant to further investigate. If nothing occurred, the innocent explanation for the wide turn likely would have sufficed, and, as we earlier noted, section 107 — 2(lXc) of the Code did not require Henson to stop defendant for the minor traffic violations that Henson saw defendant commit.

As Henson followed, defendant then weaved twice, but not severely. Only when defendant weaved a third time — this time crossing the white centerline with a third of his car — did Henson immediately pull defendant over. In his judgment — and it was his judgment call to make — only then did defendant exhibit enough erratic driving to warrant further investigation.

Completely contrary to defendant’s pretextual argument, the record reveals that Henson gave defendant considerable leeway by not intervening at the restaurant, not pulling defendant over for making an erratic turn and failing to signal, and not pulling defendant over immediately for weaving twice into another lane. Only when the cumulative effect of defendant’s driving caused Henson to suspect that defendant might be drunk did Henson choose to effectuate the probable cause he already possessed to pull defendant over for the minor traffic violations Henson saw defendant commit.

On this same point, we note that defense counsel at the suppression hearing asked the trial court “to take judicial notice of the remarkable lack of *** tickets [other than the DUI charge that Henson wrote.]” (We add that the prosecutor, not Henson, later added the improper lane usage charge.) Apparently, by his remarks, defense counsel was attempting to impeach Henson’s testimony by showing that if he had really been serious about stopping defendant for various minor traffic violations, Henson would have ticketed defendant for those violations, in addition to the DUI charge. We find this argument singularly unpersuasive. Police officers and prosecutors frequently (and appropriately) abandon minor charges which were the justification for an initial stop of a suspect when that stop reveals, as in this case, evidence to charge the suspect with a more serious offense. To hold otherwise Would provide an incentive, if not a mandate, for police and prosecutors to unnecessarily clutter our already crowded court dockets.

III. Conclusion

For the reasons stated, we reverse the trial court’s order granting defendant’s motion to suppress, and we remand for further proceedings.

Reversed and remanded.

McCULLOUGH and KNECHT, JJ., concur.