author: JUSTICE McLAREN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL A. ROMERO, Defendant-Appellant.
    Second District
    No. 2—88—0798
    Opinion filed October 2, 1989.
    Modified on denial of rehearing October 7, 1989.

      Frederick F. Cohn, of Chicago, for appellant.
    Thomas F. Baker, State’s Attorney, of Woodstock, and Immel, Zelle, Ogren, McClain, Germeraad & Costello, of Springfield (William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, and Kevin T. McClain, of counsel), for the People.
   JUSTICE McLAREN

delivered the opinion of the court:

Michael A. Romero was convicted of unlawful possession of a controlled substance with intent to deliver (Ill. Rev. Stat. 1987, ch. 56V2, par. 1401(a)(2)), and was sentenced to the Illinois Department of Corrections for a period of 15 years. We reverse, and remand the cause.

On May 20, 1987, police entered the home of Michael A. Romero (defendant) pursuant to a search warrant. Defendant did not possess any contraband on his person. However, a search of the upstairs loft bathroom produced a toiletry bag containing a bottle of perfume, a toothbrush, an emery board, a sewing kit, a comb, and four plastic bags containing a total of 36.9 grams of white powder, subsequently identified as cocaine. The toiletry bag also contained part of a Deering-type grinder, a glass vial containing cocaine residue, and a “snow blower.” The only things protruding from the toiletry bag were the tops of the plastic bags. The white powder was not visible from outside the toiletry bag. Police also found in the bathroom medicine cabinet a small scale covered with white residue.

A search of the room connected with the bathroom revealed an envelope containing $2,400 in cash. Also found on top of a chest of drawers in the room was another part of a Deering grinder and $520 in cash. Police discovered a bottle of Inositol, used to cut or adulterate cocaine, buried under assorted men’s and women’s clothing in a hamper. Police also seized a handgun and some marijuana.

After the search, defendant was arrested.

At the time of the arrest, Quinn Molenda was living at the Romero home. Molenda’s brother, Ralph, was also visiting at the time. On May 19, the day before defendant’s arrest, Quinn Molenda was arrested, along with his friends, Bill Balacek and Phillip Corea, for delivery of a controlled substance containing cocaine. Quinn Molenda and Balacek may have been present at the Romero home on the afternoon of May 19, 1987. Also present at the Romero home at various times on May 19 were social friends of the Romeros, Amy Eisenhart and Bob Mears. Mears, who was also doing construction work for the Romeros, possessed a key to the house.

On the day of the trial, a story about the case appeared on pages 1 and 2 of a local newspaper. This story contained information on defendant’s two previous arrests for possession of cocaine and marijuana. It also reported that a handgun and marijuana were found in defendant’s house. The trial court had previously suppressed all these facts via an order in limine. Reports on the case had also been broadcast on the radio. Defense counsel moved to have the jury questioned to determine if any of the jurors had read the story. The court denied the motion.

During the trial, the court heard contradictory testimony as to the living arrangements in the Romero house. Prosecution witnesses testified that there was no evidence that the Romeros slept on the first floor of the house. Police officers testified that they only saw a crib.in the first-floor bedroom. They did find men’s and women’s clothing in the loft room, as well as a dresser containing socks, a watch, a wallet, and a wedding picture of the Romeros. Defense witnesses testified that the first-floor bedroom contained a bed. A closet containing men’s suits was also located on the first floor. There was no dispute regarding the fact that Quinn and Ralph Molenda slept in the basement of the house.

One of the prosecution witnesses was Bill Balacek. Balacek testified that, while riding to the police station and again in a jail cell, defendant told him that either Balacek or Molenda would “have to take the fall *** [and] say that we had access to the bathroom.” However, an affidavit prepared by Balacek’s lawyer before trial contained no mention of the incident in the jail cell. Balacek also testified that defendant promised to obtain a lawyer for Balacek, and that attorney Timothy McNamee did visit him in jail. However, jail records did not show any visit by McNamee.

At the time of his testimony, Balacek was out of jail on bond, facing four indictments for delivery of controlled substance, including one Class X felony. He testified that he had not discussed the topic of obtaining leniency in exchange for his testimony and had no expectation of receiving it.

On cross-examination, Balacek admitted that his affidavit attached to his motion to reduce bond contained a false statement. He swore falsely that his driver’s license had never been suspended or revoked. He testified that the affidavit had been prepared by his attorney and that he signed it without reading it first.

Defendant did not testify at trial. Prosecution, in its closing argument, asserted that the alleged conversations between defendant and Balacek were uncontradicted and unrebutted. Defendant objected, but the court overruled the objection, stating that the jury had heard the evidence of the conversations.

Defendant was convicted and sentenced to the Illinois Department of Corrections for 15 years. It is from this conviction that defendant appeals.

Defendant’s first contention is that the evidence is insufficient to sustain his conviction. We disagree.

To prove one guilty of possession of controlled substances (drugs), the State must establish knowledge on the part of the defendant of the presence of the drugs and that the drugs were in defendant’s immediate and exclusive control. (People v. Embry (1960), 20 Ill. 2d 331, 334; People v. Birge (1985), 137 Ill. App. 3d 781, 790.) Since possession may be constructive, actual physical possession by the defendant is not required. (People v. Galloway (1963), 28 Ill. 2d 355, 358; Birge, 137 Ill. App. 3d at 790.) As it is difficult to prove directly that defendant had knowledge of the presence of drugs, this element may be proved by “evidence of acts, declarations or conduct of the accused from which the inference may be fairly drawn that he knew of the existence of the narcotics at the place where they were found.” (Embry, 20 Ill. 2d at 334.) If it is shown that defendant controls the premises, an inference of both knowledge and possession by defendant arises which may be sufficient to sustain a guilty verdict, absent other facts and circumstances which might raise a reasonable doubt as to guilt. (People v. Nettles (1961), 23 Ill. 2d 306, 308-09; People v. Luetkemeyer (1979), 74 Ill. App. 3d 708, 713.) Mere access by other persons is no defense, as defendant’s possession may be joint with another. (Birge, 137 Ill. App. 3d at 790.) Finally, whether or not defendant had knowledge and possession is a question of fact, and the findings of the trier of fact will not be reversed unless the evidence is so palpably contrary to the verdict, or so improbable as to create a reasonable doubt of guilt. Galloway, 28 Ill. 2d at 358; Birge, 137 Ill. App. 3d at 791.

Our review of the evidence fails to reveal such contrary or improbable evidence. Defendant was co-owner of the house in which the cocaine was found and was living in the house at the time of the search. Evidence that the drugs were found at the same address as that at which defendant lives supports the conviction for constructive possession. (Galloway, 28 Ill. 2d at 359-60; Birge, 137 Ill. App. 3d at 791.) Also supporting the conviction was the testimony, though contradicted, of the living arrangements at the Romero home. Ralph Molenda, who was living at the Romero home at the time of the search, testified that defendant and his wife slept in the upstairs loft bedroom, which was next to the bathroom in which the cocaine was found. That bedroom was also the room in which the two piles of cash, part of a grinder, and the bottle of Inositol were found. Molenda also testified that he was instructed by the Romeros to use the downstairs bathroom instead of the upstairs bathroom. This testimony is further corroborated by the fact that men’s and women’s clothing, both clean and dirty, were found in the upstairs bedroom.

It is true that others may have had access to the loft rooms. We infer that defendant’s wife had the run of the house. The Molendas, although allegedly directed not to use the loft, lived in the basement. There was disputed testimony as to whether or not Bill Balacek was seen in the loft. Bob Hears, who testified to Balacek’s presence, himself had a key to the Romero house and had access while the Romeros were not at home. However, access by others does not preclude a finding of possession. (Nettles, 23 Ill. 2d at 308.) Defendants have even been found in possession of drugs discovered in abodes in which they lived only part time. (See Galloway, 28 Ill. 2d 355; Birge, 137 Ill. App. 3d 781; Luetkemeyer, 74 Ill. App. 3d 708.) We do not find a lack of evidence, merely a conflict of evidence, as to defendant’s constructive possession. The conclusions to be drawn from this evidence rests upon which witnesses the jury chose to believe.

Defendant attacks the credibility of only one witness, Bill Balacek. Balacek’s testimony is admittedly fraught with inconsistent statements and possible perjury regarding his expectation of leniency in his own drug trials. However, this is only one witness of many, and the jury had ample opportunity to observe his demeanor as he gave testimony. The jury may or may not have given Balacek’s testimony any credence. In either event, the other evidence presented was sufficient to support a guilty verdict.

Defendant also argues that the supreme court in People v. Housby (1981), 84 Ill. 2d 415, overruled any cases that permitted an inference of constructive possession from defendant’s mere tenancy in the abode in which drugs were found. Assuming, arguendo, that defendant’s interpretation of Housby is correct, we find his conclusion to be inapplicable here. In the case before us, there exists evidence beyond mere tenancy from which the jury could infer possession. The living arrangements in the home, the location of the cocaine and other paraphernalia, and the testimony of Balacek, disputed though it be, provided the jury with ample opportunity to infer defendant’s possession. Defendant’s argument is therefore inapplicable.

Defendant further argues that the evidence was insufficient to sustain his conviction of possession with intent to deliver. We disagree.

In Illinois, a reasonable inference of intent to deliver arises from the possession of a quantity of drugs in excess of an amount that could be viewed as designed for personal use. (People v. Schaefer (1985), 133 Ill. App. 3d 697, 702.) Other factors which may enhance this inference include the manner in which the drugs are kept, and the existence of other paraphernalia. (Schaefer, 133 Ill. App. 3d at 703.) Large amounts of cash and the presence of material suitable for cutting the cocaine may also be considered. People v. Trask (1988), 167 Ill. App. 3d 694, 708.

Defendant possessed 36.9 grams of cocaine, which had a street value, according to Lieutenant Schinkel, a State witness, of at least $3,700 to $4,000. Sergeant Mason, another witness for the State, testified as to the amount of cocaine ingested at one time by an average user. According to Mason, one gram of cocaine would be divided into 10 “lines,” with an average user ingesting two lines per dose. Thus, with five doses per gram, and 36.9 grams, the seized cocaine amounted to 184.5 doses. The jury could easily find that 184 doses was an amount in excess of that usually retained for personal use. The value of the cocaine also may be seen to exceed the amount of money spent on personal consumption. In addition, the police seized over $2,900 in cash, a grinder and a scale, both of which are properly viewed as drug paraphernalia, and the bottle of Inositol, used to “cut” cocaine. The cocaine itself was in four separate plastic bags. All these factors considered together could allow the jury to infer intent to deliver.

The evidence presented was not improbable or palpably contrary to the verdict reached. Therefore, we will not disturb the findings of the jury. The verdict is affirmed.

Defendant next contends that his constitutional right not to testify was violated by the prosecutor’s closing argument. According to defendant, the prosecutor argued in a manner designed to call attention to defendant’s failure to testify.

The complained-of argument occurred in the State’s rebuttal argument. Regarding the testimony as to the alleged conversation between defendant and Balacek in the squad car, the prosecutor argued:

“[MR. PACK]: Did you hear any contradiction? Was that contradicted at all that it wasn’t said to Balacek? Was it rebutted at all?
MR. DOHERTY: Excuse me. Objection.
MR. PACK: Why? Evidence. Unrebutted evidence.
THE COURT: It is in evidence. The jury has heard it. Proceed. Finish up.
MR. PACK: You heard that testimony. Unrebutted, uncontradicted. That was said that Mr. Romero said that to Bill Balacek.”

Later in his argument, the prosecutor mentioned the “totally unrebutted and uncontradicted” testimony that men’s and women’s clothing was found in the loft bedroom. After objection by defense counsel, the court told the jury, “[T]he Defendant doesn’t have to testify, contradict or prove anything.”

The prosecution cannot directly or indirectly comment on the defendant’s failure to testify in his own defense. (People v. Lyles (1985), 106 Ill. 2d 373, 390.) However, the prosecution may refer to the uncontradicted nature of the evidence, even where the defendant is the only person who could have contradicted the evidence. (Lyles, 106 Ill. 2d at 390; People v. Hopkins (1972), 52 Ill. 2d 1, 6; People v. White (1977), 48 Ill. App. 3d 907, 914.) The test to determine whether or not a defendant’s right not to testify has been violated by prosecutorial comments is whether the remarks were calculated to draw attention to defendant’s failure to testify. Lyles, 106 Ill. 2d at 390; White, 48 Ill. App. 3d at 913.

Nothing here indicates that there was a calculated effort by the prosecutor to highlight defendant’s failure to testify. No direct reference was made to the fact that defendant did not testify. The remarks appear to be reasonable comments on the evidence. We conclude that the remarks were not improper direct or indirect comment on defendant’s failure to testify.

Defendant next contends that he was denied due process when the prosecution elicited testimony allegedly in contravention of the court’s prior order. We disagree.

The court granted defendant’s motion in limine to exclude, among other things, evidence of the pistol found in the loft bathroom and all cannabis and cannabis pipes and holders seized. Sergeant Mason, a witness for the prosecution, testified that “he [Romero] reached into the bathroom and he handed me an object.” Defendant’s counsel objected, knowing that the object handed to Sergeant Mason was the handgun. After a conference, the court struck the question and answer from the record and instructed the jury to disregard them. At no time did the jury hear testimony about what the object was. The court also sustained two objections to testimony of the presence of “roach clips” found in the search of the Romero house.

The prosecution in no way exceeded the court’s order when the police officer testified that defendant “reached into the bathroom and he handed me an object.” The gun was never mentioned. The prosecution argued that the testimony was offered to show that defendant was in the bathroom containing the cocaine. The court determined that this relevant information was outweighed by the possible prejudice that could attach to defendant if the jurors were to speculate as to what the object was. The .court, therefore, instructed the jury to disregard the question and answer. There was no error.

It was error for the State’s witnesses to testify as to the recovery of the roach clips. However, a conviction will not be reversed simply because the prosecution committed some error; the court must first determine that defendant has been denied justice and that the verdict was the result of the error. (People v. Campbell (1984), 126 Ill. App. 3d 1028, 1047.) In addition, an admonition to the jury to disregard the question will generally relieve substantial prejudice, preserve fairness, and cure any error. Campbell, 126 Ill. App. 3d at 1047.

We determine that any error resulting from the mention of roach clips was harmless. There was sufficient other evidence to allow the jury to reach the verdict it did. The testimony regarding the roach clips was not developed any further, and the jury was admonished to disregard the references. In light of the other evidence and the minimal impact of the roach clip testimony, we determine that reversal is not appropriate upon these grounds.

Defendant next contends that the verdicts returned were insufficient to justify a conviction of possession with intent to deliver 15 or more grams. The verdict form returned by the jury read, “We, the jury, find the defendant, MICHAEL ROMERO, Guilty of the offense of UNLAWFUL POSSESSION OF CONTROLLED SUBSTANCE WITH INTENT TO DELIVERY [sic].” Defendant contends that this form did not permit the jury to find that defendant possessed at least 15 grams of cocaine.

Defendant objected to the verdict forms submitted to the jury. However, the verdict form submitted by defendant, and refused by the court, suffered from the same defect alleged to be error. It read, “We, the jury, find the defendant Michael Romero Guilty of the offense of Delivery of a Controlled Substance.”

Defense counsel, after objecting to the prosecution’s verdict form, did not submit a verdict form which cured the perceived defect. A party may not raise on appeal the failure to give an instruction unless he tendered it at trial. (People v. Tannenbaum (1980), 82 Ill. 2d 177, 180.) We find the situation before us to be analogous. The jury verdict .tendered by defendant is substantially the same as the form now under attack by defendant. The amount of possession is absent from both. Defendant may not now complain about the form since he did not tender a different verdict form. We find this issue to be waived.

Defendant’s final ■ contention is that he was denied due process when the trial court failed to voir dire the jury to determine if any jurors had read a newspaper article. On the morning of the first day of trial, the Northwest Herald, a regional newspaper, published a story that defendant’s counsel thought prejudicial to defendant. The abstract shows the following conversation took place outside of the jury:

“MR. DOHERTY: On May 10, 1988 the Northwest Herald, the regional newspaper up here, Judge, there’s an article on the front page, right-hand column: ‘Romero drug trial begins.’ Continued on page two. In the article it is reported by the reporter, Jodie DeJonge, that Mr. Romero was arrested for possession of marijuana in 1974 while in high school and that in 1975 while in college in Colorado he was arrested for possession of cocaine.
Additionally, the matter which your Honor excluded, the article reports that a gun was found and also that cannabis was found.
My motion is that your Honor question the jury as to whether or not anyone has read any publicity, newspaper articles, television or radio.
* * *
THE COURT: Must we do it by law? What is the law? Isn’t it discretionary? Does the Court consider it? I have read the article. It is the truth what the article says, what went on in my courtroom. I never lock my courtroom. Was a motion outside the presence of the jury and they are cautioned two, three times a day not to discuss this or talk with anybody about it.
* * *
Denied.”

The record does not contain the article. However, we will consider those facts which are contained in the record.

Not every newspaper article published requires the court to poll a jury. (People v. Cox (1966), 74 Ill. App. 2d 342, 347.) The nature, content and prejudicial effect of the article must first be explored by the trial court in an exercise of sound discretion. (Cox, 74 Ill. App. 2d at 347.) It is the improper exercise of that discretion that is error, not the refusal to interrogate the jury. People v. Sundaresh (1987), 153 Ill. App. 3d 930, 935-36; People v. Weaver (1980), 90 Ill. App. 3d 299, 307.

It is apparent from the record that the trial court failed to exercise its sound discretion in this case. The article contained references to defendant’s prior arrests for drug offenses and his possession of the handgun and cannabis, evidence of which had been excluded by the trial court via an order in limine. The possible prejudicial effect of this information if seen by a juror is obvious. Yet the record does not show that the trial court truly reflected on this possible effect. The court did view the article, but seemed unsure of the applicable law when making its ruling. In such an atmosphere of uncertainty, we do not find an exercise of sound discretion.

We have considered but found distinguishable the case of People v. Barrow (1989), 133 Ill. 2d 226. The supreme court in Barrow ruled that a jury poll is required only if the court determines that the publicity if prejudicial. (Barrow, 133 Ill. 2d at 263-64.) The court there noted that defendant failed to present the allegedly prejudicial article to the trial court and thus precluded the trial court from even evaluating its possible prejudicial impact. The supreme court then examined the article in question, which read as follows:

“ ‘The expected lengthy trial of Ronald Barrow on murder charges could be a little longer as a result of a delay today — or it could be shorter.
* * *
Instead of resuming testimony at 10:00 a.m. as scheduled, La Salle County First Assitant State’s Atty. Gary Garretson asked O’Berto Family members to step outside the courtroom to go to another office.
This lead [sic] to speculation a plea bargain might be reached between the prosecution and defense, thus shortening the trial. Of [sic], if the agreement fails, the discussion might lengthen the trial.’ ”

The supreme court found that even if the jurors had read the article, the contents were not so prejudicial as to deny defendant a fair trial. Barrow, 133 Ill. 2d at 264.

The case before us is clearly distinguishable from Barrow. Here, the trial court read a copy of the article provided by defendant and thus had an opportunity to explore its prejudicial effect. Our examination of the record revealed the obvious prejudice to defendant contained in the article. The finding of prejudice and the trial court’s improper exercise of discretion clearly distinguish this case from Barrow.

While a jury poll is not required every time jurors are potentially exposed to prejudicial media, such a poll is a salutary and beneficial practice. (See Sundaresh, 153 Ill. App. 3d at 936.) In this case, where the prejudicial article was published just as the trial was to begin, a jury poll would have revealed any juror exposed to the publication before the trial even started. A poll would also have reinforced in the jurors’ minds the court’s admonishment, given the day before, not to read newspaper articles about the trial. Such benefits are lost, however, and the defendant is denied a fair trial, when the court fails to exercise its discretion. Therefore, a new trial must be ordered.

For these reasons, the judgment of the circuit court of McHenry County is reversed, and the cause is remanded.

Reversed and remanded.

LINDBERG and REINHARD, JJ., concur.


source: Caselaw Access Project

author: JUSTICE REINHARD

license: Public Domain

text:
    INDEPENDENT VOTERS OF ILLINOIS et al., Petitioners, v. THE ILLINOIS COMMERCE COMMISSION et al., Respondents.-INDEPENDENT VOTERS OF ILLINOIS et al., Petitioners-Appellants, v. THE ILLINOIS COMMERCE COMMISSION et al., Respondents-Appellees.
    Second District
    Nos. 2—88—0900, 2—88—1275 cons.
    Opinion filed October 5, 1989.

      Aram A. Hartunian and Robert M. Weissbourd, both of Hartunian, Futterman & Howard, Chartered, of Chicago (James G. Bradtke, of counsel), for petitioners.
    Neil F. Hartigan, Attorney General, of Springfield, and James E. Weging, of Illinois Commerce Commission, of Chicago (John P. Kelliher, Special Assistant Attorney General, of Chicago, of counsel), for respondent Illinois Commerce Commission.
    L. Bow Pritchett, of Illinois Bell Telephone Company, of Chicago (Robert G. Guritz, of counsel), for respondent Illinois Bell Telephone Company.
   JUSTICE REINHARD

delivered the opinion of the court:

Independent Voters of Illinois and its attorneys (IVI) appeal directly from an order of the Illinois Commerce Commission (Commission) denying its petition seeking attorney fees under the common-fund doctrine to be awarded from monies ordered refunded to customers of Illinois Bell Telephone Company (Bell). IVI separately appeals from the judgment of the circuit court of Kane County affirming the Commission’s order and denying an “independent, petition for fees.”

The following issues are presented on appeal: (1) whether the circuit court had jurisdiction to hear the appeal from the Commission’s order; (2) whether the mandate of the Illinois Supreme Court in a prior appeal in this case precludes an award of attorney fees under the common-fund doctrine; (3) whether the Commission or a court reviewing an order of the Commission has authority to award fees; and (4) whether the amount of fees IVI seeks is reasonable.

This appeal follows several prior appeals arising from a challenge by IVI to an order of the Commission issued in 1971 setting rates for Bell. The facts pertaining to the initial stages of this litigation are set forth in detail in the most recent supreme court opinion in this case, Independent Voters of Illinois v. Illinois Commerce Comm’n (1987), 117 Ill. 2d 90, 510 N.E.2d 850. At the conclusion of that appeal the supreme court ordered Bell to refund to its customers amounts improperly collected under the rate order in question, which had been reversed in a prior appeal, during the period following the reversal, but prior to the effective date of a superseding rate order.

The court stated:

“The refunds ordered here should be comprised of the difference between the original rates set in the 1971 rate order and the rates that would have been charged if they had been set in accordance with the views expressed in the previous decision for the period between reversal by this court and the effective date of the new rate order.” (Independent Voters of Illinois, 117 Ill. 2d at 105, 510 N.E.2d at 858.)

The court remanded the cause to the Commission “with directions to order Bell to provide refunds or credits in accordance with the views expressed [in the opinion].” 117 Ill. 2d at 106, 510 N.E.2d at 858.

On remand to the Commission, IVI and Bell proposed an agreed order providing for a refund of $1,265,597 via credits on customers’ bills. Bell and IVI reserved the issue of IVI’s entitlement to an award of attorney fees, if any, from the refund pool. IVI thereafter filed a petition for an award of attorney fees.

On July 20, 1988, the Commission entered an order requiring Bell to provide credits to its residence and business local exchange customers in the amount of $1,266,000. The order denied IVI’s request for attorney fees and costs on the grounds that the Commission was without authority to award fees and costs, and that such an award was precluded by the supreme court’s mandate. On August 17, 1988, the Commission denied motions by IVI for rehearing and for a partial stay of the order of July 20.

IVI filed notices of appeal both to this court pursuant to section 10 — 201 of the current Public Utilities Act (Ill. Rev. Stat. 1987, ch. 1112/s, par. 10 — 201) and also to the circuit court of Kane County pursuant to section 68 of the prior Public Utilities Act (Ill. Rev. Stat. 1983, ch. 1112/3, par. 72). The circuit court held that it had jurisdiction to hear the appeal in accordance with provisions of the prior act pursuant to section 4 — 402 of the current Act. (Ill. Rev. Stat. 1987, ch. 1112/3, par. 4 — 402.) The circuit court affirmed the Commission’s order, finding that neither the Commission nor the circuit court had authority to award fees, and, moreover, that such an award was precluded by the supreme court’s mandate. The circuit court stayed its order pending appeal.

IVI appealed to this court from the judgment of the circuit court. This appeal, No. 2 — 88—1275, was consolidated with IVI’s direct appeal to this court, No. 2 — 88—0900.

At the outset, we must determine the proper source of authority to review the order of the Commission denying attorney fees. IVI attempted to secure review of the order both by direct appeal to this court under the current provisions of the Public Utilities Act (Ill. Rev. Stat. 1987, ch. 1112/s, par. 10 — 201) and by appeal to the circuit court as provided for under the prior version of the Act (Ill. Rev. Stat. 1983, ch. 1112/s, par. 72).

IVI contended in the circuit court that pursuant to section 4 — 402 of the current Public Utilities Act (Act) (Ill. Rev. Stat. 1987, ch. 1112/s, par. 4 — 402), the prior Act governs the appeal in the instant case. The Commission and Bell maintain that section 4 — 402 is inapplicable here. Section 4 — 402 provides, in pertinent part:

“This amendatory Act of 1985 shall not affect pending actions or proceedings, civil or criminal, in any court or other tribunal brought by or against the People of the State of Illinois or the Illinois Commerce Commission or by any other person, firm or corporation under the provisions of this Act or any other Act establishing or conferring power on the Commission, nor abate any causes of action arising thereunder, but the same may be instituted, prosecuted and defended with the same effect as though this amendatory Act had not been passed. Any investigation, hearing or proceeding, instituted or conducted by the Commission prior to the taking effect of this amendatory Act shall be conducted and continued to a final determination by the Commission with the same effect as if this amendatory Act had not been passed.” (Ill. Rev. Stat. 1987, ch. 1112/3, par. 4-402.)

The current Act became effective on January 1, 1986. At that time, the most recent appeal to the supreme court was pending.

IVI maintained below that the Commission order appealed from arose from an action which was pending on January 1, 1986, and therefore, pursuant to the first sentence of section 4 — 402, the prior Act, rather than the current Act, governs the appeal. We disagree. The first sentence pertains to judicial proceedings. The pending judicial proceeding, the appeal to the supreme court, concluded with the issuance of the mandate remanding to the Commission. Thereafter, in our view, the transitional applicability of the current Act to the Commission proceedings on remand was governed by the following sentence, which provides that pending Commission proceedings “shall be conducted and continued to a final determination by the Commission with the same effect as if this amendatory Act had not been passed.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 1112/3, par. 4 — 402.) This language implicates only the actual Commission proceeding, allowing it to proceed to a final determination. By implication, appeals following a final determination, or from orders in subsequent related proceedings, as is the case here, are to be taken pursuant to the current Act. Accordingly, in No. 2 — 88—1275, the circuit court was without jurisdiction to hear this appeal, and its judgment is vacated.

As IVI properly perfected an appeal to this court in No. 2 — 88— 0900, we now address the merits of its contention that the Commission erred in denying its petition for fees. Bell maintains that the Commission, in its written order, correctly found that the mandate of the supreme court remanding the cause to the Commission precluded an award of fees pursuant to the common-fund doctrine. We agree and affirm the order.

The common-fund doctrine allows a party who has conferred a benefit on another through litigation to recover a share of attorney fees from those who benefit. (DeBruyn v. Elrod (1983), 121 Ill. App. 3d 290, 292, 459 N.E.2d 971.) In order for attorney fees, costs and expenses to be awarded, a fund must have been brought within the control of the court. (Hamer v. Kirk (1976), 64 Ill. 2d 434, 441, 356 N.E.2d 524; DeBruyn, 121 Ill. App. 3d at 292, 459 N.E.2d at 973.) The common-fund doctrine is based on the equitable concept that an attorney who performs services in creating a fund should in equity and good conscience be allowed compensation out of the whole fund from those who seek to benefit from it. Baier v. State Farm Insurance Co. (1977), 66 Ill. 2d 119, 124, 361 N.E.2d 1100; Domenella v. Domenella (1987), 159 Ill. App. 3d 862, 867, 513 N.E.2d 17; Tenney v. American Family Mutual Insurance Co. (1984), 128 Ill. App. 3d 121, 122, 470 N.E.2d 6.

IVI maintains that the common-fund doctrine is applicable here since it secured the creation of the “refund pool” which benefits Bell customers, and, accordingly, attorney fees may be awarded from the refund pool. Bell responds, however, that because the supreme court instructed that the entire amount improperly collected by Bell be refunded to its customers, no portion can be diverted to satisfy an award of attorney fees.

The mandate of the supreme court provides:

“This cause is REMANDED to the Illinois Commerce Commission with directions to provide refunds or credits in accordance with the opinion attached to this mandate.”

The court’s opinion states:

“The refunds ordered here should be comprised of the difference between the original rates set in the 1971 rate order and the rates that would have been charged if they had been set in accordance with the views expressed in the previous decision for the period between reversal by this court and the effective date of the new rate order.” Independent Voters of Illinois, 117 Ill. 2d at 105, 510 N.E.2d at 858.

Where the directions of a reviewing court are specific, a positive duty devolves upon the court to which the cause is remanded to enter an order or decree in accordance with the directions contained in the mandate. (People ex rel. Daley v. Schreier (1982), 92 Ill. 2d 271, 276, 442 N.E.2d 185; Stuart v. Continental Illinois National Bank & Trust Co. (1979), 75 Ill. 2d 22, 28, 387 N.E.2d 312.) Precise and unambiguous directions in a mandate must be obeyed. (Daley, 92 Ill. 2d at 276, 442 N.E.2d at 188; City of Springfield v. Allphin (1980), 82 Ill. 2d 571, 574, 413 N.E.2d 394.) Here, the mandate requires that the entire amount overpaid be returned to customers, and thus necessarily precludes deduction of attorney fees.

The judgment of a reviewing court is final upon all questions decided, and if the cause is remanded, only such action may be taken on remand as conforms to the judgment of the reviewing court. (Independent Voters of Illinois, 117 Ill. 2d at 102, 510 N.E.2d at 856; PSL Realty Co. v. Granite Investment Co. (1981), 86 Ill. 2d 291, 305, 427 N.E.2d 563.) IVI contends, however, that the supreme court did not consider the issue of attorney fees, and hence, that issue is open for consideration on remand. (See Pioneer Trust & Savings Bank v. Zonta (1981), 96 Ill. App. 3d 339, 344-45, 421 N.E.2d 239.) This argument misses the mark.

Here, the supreme court decided the question of the proper disposition of the amounts improperly collected by Bell. Whether or not the supreme court considered the issue of attorney fees, its judgment is no less conclusive as to the proper disposition of these amounts. Because an award of attorney fees under the common-fund doctrine would be inconsistent with the disposition specified in the supreme court’s mandate, fees cannot be awarded. Even following the issuance of the supreme court’s opinion, IVI might have sought modification of the judgment by a petition for rehearing prior to issuance of the mandate. Sprague v. Ticonic National Bank (1939), 307 U.S. 161, 83 L. Ed. 1184, 59 S. Ct, 777, cited by IVI, wherein the United States Supreme Court rejected the argument that its mandate in a prior appeal in the case precluded an award of fees under the common-fund doctrine, is inapposite as the mandate in that case did not provide for the disposition of the entire common fund.

IVI protests that at the time of its appeal to the supreme court it had been unsuccessful in the circuit and appellate courts, no refund had been ordered or calculated, and hence it would have been premature to have raised the issue of fees in the supreme court. Nonetheless, if IVI anticipated seeking fees under the common-fund doctrine, it could have declared this intention and sought relief consistent with a subsequent award of fees. IVI could thus have preserved the issue of fees for later determination even if a decision on the merits in the supreme court would have been premature.

Accordingly, we hold that the award of fees and costs sought by IVI was precluded by the mandate of the supreme court, and the Commission properly denied IVI’s petition. In view of our disposition on this basis it is unnecessary to consider the remaining issues presented on appeal.

The judgment of the circuit court is vacated. The order of the Commission is affirmed.

No. 2 — 88—0900, Order affirmed.

No. 2 — 88—1275, Judgment vacated.

LINDBERG and McLAREN, JJ., concur.


text:
    DOROTHY BROWN, Plaintiff-Appellant, v. K.J.S. COMPANY, as Managing Agent for the Beneficiaries of Trust No. 24449, et al., Defendants-Appellees.
    Second District
    No. 2—88—1269
    Opinion filed October 2, 1989.
    Rehearing denied November 9, 1989.

      Sam Cuba, of Jeffrey D. Schultz, Ltd., of Chicago, for appellant.
    Kathleen M. Viglione, of Ryan & Viglione, of Waukegan, for appellees.
   JUSTICE REINHARD

delivered the opinion of the court:

Plaintiff, Dorothy Brown, appeals from an order of the circuit court of Lake County dismissing her second amended complaint against defendants, K.J.S. Company and Joseph and Eleih Serafine, in her negligence action seeking recovery for injuries allegedly sustained when she slipped and fell on wet, icy stairs outside an apartment leased to her by defendants.

The only issue raised on appeal is whether the circuit court erred in finding that the complaint failed to establish a duty owed to plaintiff, either under the terms of the lease or by prior conduct of defendants, and therefore did not state a cause of action.

Plaintiff’s second amended complaint alleged that defendants, as owners and leasing agents for the owners of an apartment, owed a duty to plaintiff, as tenant, pursuant to the lease to make reasonable inspections of the stairs at reasonable times and to make reasonable repairs of the stairs. The complaint further alleged that defendants owed a duty to construct and maintain stairs that would not increase the risk of falling on snow and ice due to the stairs causing a greater accumulation to occur and that defendant, by past conduct, had voluntarily assumed a duty to remove ice and snow. The complaint alleged that defendants’ negligent performance of these duties proximately caused plaintiff to fall and injure herself.

Defendants moved to dismiss plaintiff’s second amended complaint, relying on their motion to dismiss the first amended complaint. In that motion, defendants contended there was no liability for injuries resulting from natural accumulations of ice and snow, that removal of ice and snow was not within the scope of a covenant to make reasonable repairs, and that no duty arose as a result of any snow removal undertaken in the past.

On November 29, 1988, the circuit court entered an order finding that no duty existed on the basis of the lease or any prior undertaking to remove snow and ice and dismissed the complaint “with prejudice,” but granted leave to plaintiff to file a third amended complaint “based on common law negligence only.” The court’s order recited that there was no just reason to delay its enforcement or appeal.

Thereafter, on December 1, 1988, plaintiff filed her third amended complaint, wherein she repeated, inter alia, the allegation from the second amended complaint that defendants owed a duty to construct and maintain stairs which would not increase the risk of falling by making a greater accumulation of ice and snow occur. Defendants filed an answer to this complaint. Plaintiff, on December 28, 1988, filed her notice of appeal from the order of November 29, 1988.

Before proceeding to the merits of this appeal, we must determine whether we have jurisdiction to review the order appealed from. Though neither party raises the issue, we have a duty to consider our jurisdiction and dismiss an appeal if jurisdiction is wanting. Ferguson v. Riverside Medical Center (1985), 111 Ill. 2d 436, 440, 490 N.E.2d 1252; Voiland v. Warsawsky (1989), 182 Ill. App. 3d 332, 334, 538 N.E.2d 764.

Supreme Court Rule 304(a) (124 Ill. 2d R. 304(a)) provides that in an action involving multiple parties or multiple claims for relief, an appeal may be taken from a final judgment as to one or more but fewer than all of the parties or claims only if the trial court makes a special finding that there is no just reason for delaying enforcement or appeal. However, the mere statement of a single claim in several ways does not warrant a separate appeal; and a trial court, where such is the case, cannot confer appellate jurisdiction by a finding that there is no just reason for delaying enforcement or appeal. Cunningham v. Brown (1961), 22 Ill. 2d 23, 25, 174 N.E.2d 153.

In the instant case, despite the trial court’s finding of no just reason to delay enforcement or appeal, the order of November 29, 1988, was not a final judgment as to a separate claim appealable under Rule 304(a). Plaintiff’s single-count, second amended complaint did not involve multiple claims, but only a single claim of negligence, as does the third amended complaint. While plaintiff’s second amended complaint alleged various sources of a duty owed by defendant to plaintiff, it only advanced one theory of recovery, negligence. (See Hull v. City of Chicago (1987), 165 Ill. App. 3d 732, 733, 520 N.E.2d 720.) It is well established that the statement of a single claim in several ways, even by multiple counts, does not warrant a separate appeal. (Cunningham v. Brown (1961), 22 Ill. 2d 23, 25, 174 N.E.2d 153; Freeman v. White Way Sign & Maintenance Co. (1980), 82 Ill. App. 3d 884, 890, 403 N.E.2d 495.) The rule is applicable here where a single claim of negligence is stated several ways in the allegations of a single count. See Hull, 165 Ill. App. 3d at 733, 520 N.E.2d at 721.

Here, plaintiff was given leave to file a third amended complaint but was prevented by the circuit court from repeating certain allegations pertaining to duty. These dismissed allegations do not constitute a separate claim from that alleged in the third amended complaint. Plaintiff’s second and third amended complaints both advance the same negligence claim, despite the absence of certain allegations in the latter. Accordingly, as the claim based on negligence is still pending below, we are without jurisdiction to review the nonfinal order dismissing the second amended complaint, and the appeal must be dismissed.

Appeal dismissed.

UNYERZAGT, P.J., and WOODWARD, J., concur.


text:
    LOWELL KOUSINS et al., on behalf of themselves and all other persons similarly situated, Plaintiffs-Appellants, v. JACK ANDERSON, County Collector and County Treasurer of Lake County, et al., Defendants-Appellees.
    Second District
    No. 2—89—0553
    Opinion filed October 5, 1989.

      Larry D. Drury, of Larry D. Drury, Ltd., of Chicago, for appellants.
    Fred L. Foreman, State’s Attorney, of Waukegan (Helen S. Rozenberg and Joseph E. Kolar, Assistant State’s Attorneys, of counsel), for appellees.
   JUSTICE REINHARD

delivered the opinion of the court:

Plaintiffs, Lowell and Carol Kousins, appeal from the order of the circuit court of Lake County dismissing their amended complaint seeking relief from the alleged illegal assessment of a real estate tax penalty.

The issue presented on appeal is whether the trial court lacked jurisdiction to consider the claim raised in plaintiffs’ complaint.

Plaintiffs were assessed real estate taxes for 1984 in the amount of $3,856.98 to be paid in two equal installments of $1,928.49. The first installment was due on June 2, 1985, and the second installment was due on September 3, 1985. Plaintiffs paid the first installment on July 12,1985.

On or about July 21, 1985, plaintiffs received notice that they were being charged a penalty of $57.85 because their payment was late. The penalty was calculated at a lV2%-per-month rate on the $1,928.49 first installment for the entire months of June and July. Plaintiffs paid the $57.85 penalty on July 21, 1985.

Plaintiffs filed an amended class action complaint contending, inter alia, that any penalty imposed after the July 12, 1985, date of payment of the first installment is unauthorized by law and seeking injunctive and declaratory relief. The circuit court, on June 22, 1988, granted defendants’ motion to dismiss with prejudice, finding that it lacked jurisdiction to consider plaintiffs’ claim because plaintiffs had an adequate remedy at law and because plaintiffs’ claim did not establish that the complained-of penalty was unauthorized by law.

On June 29, 1988, defendants filed a motion for attorney fees and costs pursuant to section 2 — 611 of the Civil Practice Law (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 611). On July 11, 1988, plaintiffs moved to dismiss defendants’ section 2 — 611 motion and filed a cross-motion for attorney fees and costs pursuant to section 2 — 611. Plaintiffs appealed only from the order dismissing their amended complaint, and this court dismissed the appeal because there was no finding pursuant to Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)) making the dismissal order final and appealable. (Kousins v. Anderson (1989), 180 Ill. App. 3d 827, 536 N.E.2d 487.) On remand, the circuit court entered an agreed order dismissing the parties’ section 2 — 611 cross-petitions, and this appeal ensued.

The usual vehicle for challenging tax assessments is the legal remedy provided by statute for paying taxes under protest and filing objections to the application for judgment. (Clarendon Associates v. Korzen (1973), 56 Ill. 2d 101, 104, 306 N.E.2d 299.) Independent grounds for equitable jurisdiction in real estate tax cases exist only when no adequate legal remedy is available, when exempt property is taxed, or when an unauthorized tax is levied. (First National Bank & Trust Co. v. Rosewell (1982), 93 Ill. 2d 388, 392, 444 N.E.2d 126; see also Schlenz v. Castle (1986), 115 Ill. 2d 135, 141, 503 N.E.2d 241.) The two latter situations constitute independent grounds for equitable relief, and, in such cases, it is not necessary that the remedy at law be inadequate. (Clarendon Association, 56 Ill. 2d at 105, 306 N.E.2d at 301.) As to the unauthorized-by-law exception, the question is not whether the tax is valid but, rather, whether the assessor has the power to function. (North Pier Terminal Co. v. Tully (1976), 62 Ill. 2d 540, 548, 343 N.E.2d 507.) The challenge must be to the assessor’s authority to act in order to sustain equitable jurisdiction. North Pier Terminal Co., 62 Ill. 2d at 548, 343 N.E.2d at 511.

In this case, plaintiffs contend that the county collector improperly imposed a penalty on their late first installment by assessing a V-k% penalty for the entire month of July rather than applying that rate on a pro rata basis through July 12 only. In other words, plaintiffs argue that because the first installment was paid on July 12, it was no longer unpaid and late and therefore the county collector lacked statutory authority to assess a penalty based on a late payment beyond that date.

Section 224 of the Revenue Act of 1939 states in pertinent part:

“§224. All dates on which unpaid taxes become delinquent under this Section shall be subject to modification by ordinance of the county board as provided in Section 224.1b of this Act.
All real estate upon which the first installment of taxes for years subsequent to the year 1950 remains unpaid on the first day of June annually shall be deemed delinquent as to such first installment and except as may be provided pursuant to section 224.1, and such unpaid first installment shall bear interest after the first day of June annually (a) after the effective date of this amendatory Act of 1985 and before January 1, 1989, at the rate of 1% per month for all real property, and (b) before the effective date of this amendatory Act of 1985 and again on and after January 1, 1989, at the rate of 1%% per month for all real property until paid or forfeited ***.” Ill. Rev. Stat. 1985, ch. 120, par. 705.

Accordingly, section 224 provides the authority for the county collector to assess an interest penalty on an “unpaid first installment *** until paid or forfeited.” Plaintiffs’ complaint alleges that the county collector does not have the authority to collect the applicable 1V2% interest penalty for any period beyond the date the real estate tax payment is made. Thus, plaintiffs’ complaint challenges the authority of the county collector to assess the interest penalty for the entire month of July when plaintiffs paid the first installment on July 12. Such allegations go to the power of the collector to assess the interest penalty, rather than merely challenging whether the interest penalty was calculated properly. Thus, plaintiffs’ claim falls within the unauthorized-by-law exception, and the circuit court has jurisdiction to consider plaintiffs’ claim.

Although our research reveals no case deciding this precise issue, we are persuaded by a decision of the appellate court under similar circumstances. In W.F. Smith & Co. v. Rosewell (1984), 123 Ill. App. 3d 939, 463 N.E.2d 1024, the court held that the assessment of costs is purely statutory and depends entirely upon the terms of the statute authorizing them. (123 Ill. App. 3d at 944, 463 N.E.2d at 1028.) In a case where a plaintiff challenges the assessment of costs as exceeding the amount authorized by statute, the excess costs assessed are within the definition of a tax unauthorized by law. (123 Ill. App. 3d at 944, 463 N.E.2d at 1028.) Thus, the county collector lacks power and authority to impose charges for costs in excess of the amount of costs authorized by statute, and the circuit court has jurisdiction to hear such a claim. (123 Ill. App. 3d at 944, 463 N.E.2d at 1028.) Similarly, in the present case, any interest penalty assessed beyond that authorized by statute would be beyond the power and authority of the county collector, and plaintiffs’ claim to that effect invoked the equitable jurisdiction of the court.

The judgment of the circuit court of Lake County is reversed, and this cause is remanded for further proceedings on the amended complaint.

Reversed and remanded.

UNVERZAGT, P.J., and WOODWARD, J., concur.


author: PRESIDING JUSTICE UNVERZAGT

text:
    THE AMERICAN NATIONAL BANK IN DE KALB, Plaintiff and Counterdefendant-Appellee, v. ARTHUR RICHOZ et al., Defendants and Counterplaintiffs-Appellants (Wayne Miller et al., Defendants).
    Second District
    No. 2—88—1111
    Opinion filed October 2, 1989.
    Rehearing denied November 8, 1989.

      Vincent C. Argento, of Law Offices of Vincent C. Argento, of Elgin, for appellants.
    John W. Countryman and Susan Niki Willott, both of Countryman, Rissman & Krasner, of De Kalb, for appellee.
   PRESIDING JUSTICE UNVERZAGT

delivered the opinion of the court:

Defendants, Arthur and Joan Richoz, appeal from an order of the trial court which granted summary judgment in favor of plaintiff, the American National Bank in De Kalb. Defendants also appeal from an order which dismissed their counterclaim against plaintiff. On appeal, defendants contend that (1) based on the affirmative defense of either impossibility or commercial frustration, they established a genuine issue of material fact which precluded summary judgment; and (2) the trial court improperly dismissed their counterclaim on the basis that they lacked standing.

As the parties are well familiar with the facts of this case, we shall recite only those facts which are essential to the disposition of the issues raised on appeal. This case involves the execution of four notes by defendants, Arthur and Joan Richoz, Wayne Miller, and Joseph Beck, in favor of plaintiff. Miller and Beck were engaged in a restaurant business with an adjoining health club operation, Olympic Health and Racquet Club (Olympic), which were organized as two separate corporations. Miller and Beck set up Fitness II Enterprises, Inc. (Fitness II), to operate Olympic, and plaintiff provided the initial financing for the setup of Fitness II. After experiencing some financial hardships, Miller and Beck sought additional investors and convinced Arthur and Joan Richoz to purchase stock in Fitness II.

Miller and Arthur Richoz went to plaintiff to discuss additional loans and were told, through its president, Richard Willey, that plaintiff was unwilling to put additional funds into Fitness II because it had previously provided substantial financing for Olympic’s operation. Plaintiff stated that it would only loan funds on the basis of the personal credit of Arthur and Joan Richoz. Arthur Richoz indicated that because Miller and Beck were also involved in the operations, he wanted them obligated on the notes. Arthur and Joan Richoz executed four notes as principal obligors, and Miller and Beck signed those notes personally, not in a corporate capacity. Soon after the notes were executed, Fitness II experienced further financial difficulties and fell farther behind on its corporate obligations to plaintiff which included the notes at issue in this case. Even though several meetings of all the investors were conducted, Fitness II failed to make payments on its corporate obligations to plaintiff. Plaintiff then presented final deadlines to all the parties which the stockholders and corporation failed to meet. On April 6, 1986, defendants entered into an agreement for the sale of Olympic for $130,000 to Tim Raines, a representative of Vinra Associates. On June 11, 1986, when plaintiff believed that certain unauthorized individuals were in possession of Olympic, it entered the premises and changed the locks to the health club. As a result of plaintiff’s action, the sale of Olympic to Vinra Associates was not completed. Eventually, plaintiff sold Olympic for $45,000.

A notice of default was given on the personal obligations of defendants Arthur and Joan Richoz, and defendants refinanced some investment property to pay approximately $60,000 on their obligations. Plaintiff then set off certain bank accounts of defendants to further reduce defendants’ indebtedness, but defendants were still unable to meet their obligations on the notes. On January 6, 1987, plaintiff brought suit to recover $28,612.84 due on four notes defendants personally executed. Although Miller and Beck were named defendants in that complaint, this appeal concerns only the claims made against Arthur and Joan Richoz.

In their answer to plaintiff’s complaint, defendants raised the affirmative defense of impossibility based on plaintiff’s conduct of changing Olympic’s locks. Additionally, defendants filed a counterclaim which alleged that plaintiff intentionally interfered with the contractual relationship between defendants and Vinra Associates. Plaintiff filed a motion to dismiss the counterclaim, and the trial court granted plaintiff’s motion, finding that defendants lacked standing to bring their counterclaim. Plaintiff then filed a motion for summary judgment which was granted. From the entry of summary judgment in plaintiff’s favor, defendants filed a timely notice of appeal.

In their first appellate contention, defendants assert that the trial court improperly granted plaintiff’s motion for summary judgment because they raised a factual question with respect to whether plaintiff made it impossible for defendants to honor their obligations under the four notes. Defendants claim that their performance was rendered impossible when plaintiff changed Olympic’s locks thereby spoiling defendants’ attempt to sell the health club to Vinra Associates.

A motion for summary judgment should be granted only when the pleadings, depositions, and admissions on file together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1005(c); Purtill v. Hess (1986), 111 Ill. 2d 229, 240; Addison State Bank v. National Maintenance Management, Inc. (1988), 174 Ill. App. 3d 857, 859.) In determining the existence of a genuine issue of material fact, we must consider the pleadings, depositions, admissions, exhibits, and affidavits on file in the case and must construe them strictly against the movant and liberally in favor of the opponent. Purtill, 111 Ill. 2d at 240.

It is well settled that where the parties, by their own conduct and positive undertaking, create a duty or charge upon themselves, they must abide by the contract and make the promise good, and subsequent contingencies not provided against in the contract, which render performance impossible, do not bring the contract to an end. (Leonard v. Autocar Sales & Service Co. (1945), 392 Ill. 182, 187; Semrow v. Harmswood Stables North, Inc. (1981), 100 Ill. App. 3d 219, 226; Mouhelis v. Thomas (1981), 95 Ill. App. 3d 181, 183.) An exception to this general rule is where the continued existence of a particular person or thing is so necessary to the performance of a contract that, by law, it is implied as a condition of the contract that the death of that person or destruction of that thing shall excuse performance. Leonard, 392 Ill. at 189; Semrow, 100 Ill. App. 3d at 226; Mouhelis, 95 Ill. App. 3d at 183.

The subject matter of the contract at issue here was the funds loaned to defendants pursuant to the terms of plaintiff’s notes. There has been no destruction of the subject matter of the contract between plaintiff and defendants. Although the Olympic health club may have been rendered useless to defendants because plaintiff locked them out, the health club was not an essential element of defendants’ contract with plaintiff, and plaintiff’s act of changing Olympic’s locks does not excuse defendants’ obligation to repay plaintiff’s notes under the theory of impossibility.

A further extension of the affirmative defense of impossibility is the doctrine of commercial frustration. (See Mouhelis, 95 Ill. App. 3d at 183.) “The doctrine of frustration *** rests on the view that where from the nature of the contract and the surrounding circumstances the parties when entering into the contract must have known that it could not be performed unless some particular condition or state of things would continue to exist, the parties must be deemed, when entering into the contract, to have made their bargain on the footing that such particular condition or state of things would continue to exist, and the contract therefore must be construed as subject to an implied condition that the parties shall be excused in case performance becomes impossible from such condition or state of things ceasing to exist.” (Leonard, 392 Ill. at 187-88.) To obtain relief under the doctrine of commercial frustration, the defendant must demonstrate that: (1) the frustrating event was not reasonably foreseeable; and (2) the value of counterperformance has been totally or nearly totally destroyed by the frustrating event. (Northern Illinois Gas Co. v. Energy Cooperative, Inc. (1984), 122 Ill. App. 3d 940, 952; Smith v. Roberts (1977), 54 Ill. App. 3d 910, 913.) Although the doctrine of commercial frustration is a viable defense, it should not be applied liberally. Smith, 54 Ill. App. 3d at 913.

In their second appellate contention, defendants argue that under the doctrine of commercial frustration, it was clearly not foreseeable that plaintiff would lock them out of their own business when plaintiff’s purpose for lending them money was to keep their business going. Defendants further argue that the value of their counterperformance was destroyed when they were locked out of the Olympic health club.

Despite their assertions to the contrary, defendants have failed to allege facts which would satisfy the two-part test for the doctrine of commercial frustration. Although plaintiff’s loans were given for the purpose of easing the financial difficulties which the Olympic was experiencing, it was foreseeable that, if defendants defaulted on those loans, plaintiff might seize and sell the health club to satisfy defendants’ indebtedness. Undoubtedly, the sole purpose for plaintiff retaining a security interest in the Olympic was that in the event defendants defaulted on their obligations, plaintiff could recoup its losses by selling the health club. Because the record demonstrates that the frustrating event of which defendants complain was reasonably foreseeable, we conclude that the doctrine of commercial frustration is inapplicable to the instant action. There being no genuine issue of a material fact, the trial court properly granted summary judgment in plaintiff’s favor.

Defendants next contend that, based on an assignment contract in which Fitness II assigned to them its rights in a cause of action against plaintiff for intentional interference with a contractual relationship, they had standing to sue plaintiff. Alternatively, defendants contend that they had standing to bring a derivative action on behalf of Fitness II.

Initially, we note that defendants have failed to attach to their counterclaim a copy of Fitness II’s alleged assignment contract; nor does the alleged assignment contract appear anywhere in the record. The record indicates that Fitness II was dissolved on September 2, 1986, for failure to file an annual report and/or failure to pay franchise taxes. There is no evidence which tends to show that defendants were assigned Fitness II’s cause of action prior to the dissolution of that corporation. Because there is no authority for a dissolved corporation to assign a cause of action (see Ill. Rev. Stat. 1987, ch. 32, par. 12.30; People v. Boyce (1987), 156 Ill. App. 3d 1036, 1039; Blankenship v. Demmler Manufacturing Co. (1980), 89 Ill. App. 3d 569, 572) and because defendants have failed to affirmatively demonstrate that they entered into the alleged assignment contract prior to the dissolution of Fitness II, we consider Fitness II’s alleged assignment to defendants to be an inadequate basis for conferring standing upon defendants.

We next decide whether defendants had standing to bring a derivative action against plaintiff. Ordinarily, a shareholder cannot maintain a derivative action on a corporate right where the shareholder has failed to demand that the corporation’s directors bring suit. (Valiquet v. First Federal Savings & Loan Association (1979), 87 Ill. App. 3d 195, 199.) A shareholder’s demand is excused where the majority of the directors are themselves involved in the matters complained of, such that it is evident that the demand would be unavailing. (Valiquet, 87 Ill. App. 3d at 200.) To maintain a suit on behalf of a corporation, a shareholder must allege and prove an equitable basis for such intervention, and a shareholder is no more entitled to challenge a decision by the directors not to sue through a derivative action than to so challenge any other board decision. (Axelrod v. Giambalvo (1984), 129 Ill. App. 3d 512, 520.) There is no allegation in defendants’ counterclaim or in the record that defendants demanded that Fitness II’s directors bring suit against plaintiff for the intentional interference of a contractual relationship. In the absence of such demand, we conclude that defendants lacked standing to sue plaintiff in a derivative action. Therefore, the trial court properly dismissed defendants’ counterclaim.

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

Affirmed.

NASH and DUNN, JJ., concur.


author: JUSTICE STOUDER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. EDDIE LEE BURKS, Defendant-Appellee.
    Third District
    No. 3—88—0591
    Opinion filed October 5, 1989.

      Edward F. Masters, State’s Attorney, of Joliet (Terry A. Mertel, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Joseph N. Ehmann, of State Appellate Defender’s Office, of Ottawa, for appellee.
   JUSTICE STOUDER

delivered the opinion of the court:

The defendant, Eddie Burks, was initially charged by complaint with first degree murder (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 1), but was subsequently indicted for second degree murder (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 2). The indictment alleged that the defendant had committed first degree murder by shooting the victim, but that at the time of the killing he had unreasonably believed the circumstances to be such that if they existed would justify or exonerate his action. The defendant filed a motion to dismiss the indictment. The trial court granted the motion, finding that the State could not charge the defendant with second degree murder, because that offense exists only when the defendant is charged with first degree murder and the defendant has put forth evidence of mitigating factors. The State appeals.

Initially, we note that the defendant is “confessing error” on the part of the trial court. Both the State and the defendant argue on appeal that the trial court erred in dismissing the indictment.

The offense of second degree murder is defined in relevant part as follows:

“(a) A person commits the offense of second degree murder when he commits the offense of first degree murder *** and either of the following mitigating factors are present:
(1) At the time of the killing he is acting under a sudden and intense passion resulting from serious provocation by the individual killed or another whom the offender endeavors to kill, but he negligently or accidentally causes the death of the individual killed; or
(2) At the time of the killing he believes the circumstances to be such that, if they existed, would justify or exonerate the killing under *** Article 7 of this Code, but his belief is unreasonable.
* * *
(c) When a defendant is on trial for first degree murder and evidence of either of the mitigating factors defined in subsection (a) of this Section has been presented, the burden of proof is on the defendant to prove either mitigating factor by a preponderance of the evidence before the defendant can be found guilty of second degree murder.” Ill. Rev. Stat. 1987, ch. 38, par. 9 — 2.

We note that when construing a statute, the prime consideration is to give effect to the intent of the legislature. (People v. Scott (1974), 57 Ill. 2d 353, 312 N.E.2d 596.) The intent of the legislature can best be determined by the plain and ordinary meaning of the statutory language. (People v. Pettit (1984), 101 Ill. 2d 309, 461 N.E.2d 991.) A reviewing" court should interpret a statute to promote its essential purposes and to avoid, if possible, a construction that would raise doubts as to its validity. People v. Nastasio (1960), 19 Ill. 2d 524, 168 N.E.2d 728.

In the instant case, the trial court found that under the statute second degree murder exists only when a defendant charged with first degree murder chooses to put forth evidence of mitigating circumstances. Therefore, the court concluded, the State cannot charge a defendant with second degree murder. We find that the legislature did not intend such a result in enacting this statute.

The statute states that when a defendant has committed the offense of first degree murder the charge can be reduced to second degree murder if certain mitigating factors are present. The State is therefore required to prove the elements of first degree murder beyond a reasonable doubt. The defendant is then required to prove the mitigating factors in order to reduce the charge. Patterson v. New York (1977), 432 U.S. 197, 53 L. Ed. 2d 281, 97 S. Ct. 2319, and Martin v. Ohio (1987), 480 U.S. 228, 94 L. Ed. 2d 267, 107 S. Ct. 1098, approve similar statutes from other States.

The statute does not, however, prohibit the State from initially charging a defendant with second degree murder. By charging a defendant with second degree murder, the State is alleging that it can prove the elements of first degree murder, but is conceding the presence of mitigating factors. Under these circumstances the defendant bears no burden to prove any mitigating factors. Of course, if the instant defendant is tried by a jury and the cause reaches the deliberations stage, special jury instructions will be needed to explain the elements of the offense.

The judgment of the circuit court of Will County dismissing the defendant’s indictment is reversed, and the cause is remanded for further proceedings.

Reversed and remanded.

WOMBACHER, P.J., and HEIPLE, J., concur.


text:
    FREDA MAROLDY, Plaintiff, v. ELISSA ISAACSON et al., Defendants (Esther Williams, Inc., et al., Counterplaintiffs-Appellants; Elissa Isaacson, Counterdefendant-Appellee).
    Third District
    No. 3—88—0491
    Opinion filed June 22, 1989.

      Ruth Van Demark, of Wildman, Harrold, Allen & Dixon, of Chicago, and Robert A. Strelecky, of Wildman, Harrold, Allen & Dixon, of Wheaton (Timothy W. Heath, of counsel), for appellants.
    Stefanich, McGarry, Wols & Okrei, Ltd., of Joliet (John McGarry, of counsel), for appellee.
   JUSTICE STOUDER

delivered the opinion of the court:

Esther Williams, Inc., and Esther Williams Swimming Pools (Esther Williams) appeal from the judgment of the circuit court of Will County, granting Elissa Isaacson’s motion for a directed verdict. In 1979 Isaacson installed in her backyard a pool which she had purchased from Esther Williams, a manufacturer and distributor of swimming pools. The pool was a 15-foot by 30-foot oval with a deck on one end, a narrow, 18-inch walk deck surrounding the remaining three sides and a railing around the entire pool.

In 1983, Isaacson’s aunt, Freda Maroldy, came to live with her niece. Maroldy was given room and board in exchange for payment of $100 per month and for babysitting her niece’s two sons. Three weeks into her stay with her niece, Maroldy decided to trim some willow tree branches that were hanging above the pool. She testified that she wanted to cut the branches because she was concerned for the safety of her grand-nephews, who were using the branches to play “Tarzan,” swinging over and “plopping” into the pool. Having procured a hacksaw from her niece’s garage, Maroldy, then 73 years old, proceeded to the walk deck which surrounded the pool to cut the branches.

Maroldy further testified that she was successful in trimming a few of the branches. However, as she was standing on the deck, looking up to locate other branches to be cut, she leaned on and fell through the guardrail. Maroldy broke both wrists, her collarbone and right shoulder in the fall.

Maroldy sued both her niece and Esther Williams. Esther Williams settled with Maroldy for $97,500 and then sought contribution from Isaacson, who denied liability. Esther Williams sought to show that Maroldy’s injuries were proximately caused by negligence on the part of Isaacson. After Esther Williams presented its case for contribution, the circuit court granted Isaacson’s motion for a directed verdict in her favor. Esther Williams then brought this appeal, arguing that the circuit court erred in granting the defendant’s motion for a directed verdict and in excluding certain expert and photographic evidence. We affirm the court’s judgment as to the photographs but reverse as to the expert testimony and directed verdict.

Esther Williams argues that the circuit court erred in failing to admit certain photographs into evidence. We disagree. Admission of a photograph into evidence requires the testimony of a witness, who has personal knowledge of the photographed object at a time relevant to the litigation, that the photograph being offered is a fair and accurate representation of the object at the relevant time. (Gaunt & Haynes, Inc. v. Moritz Corp. (1985), 138 Ill. App. 3d 356, 364, 485 N.E.2d 1123, 1129.) In this case, Esther Williams sought to admit into evidence photographs of the section of pool railing through which Maroldy fell. However, no witness testified that the photographs were fair and accurate representations of the pool railing at the relevant time. On the contrary, the witnesses all indicated that the railing as depicted in the photographs was more severely damaged than it actually was immediately after Maroldy’s fall. There was, therefore, no foundation for the admission of the photographs into evidence, and we accordingly conclude that the circuit court was correct in excluding the photographs from evidence.

Esther Williams also argues that the circuit court erred in excluding certain expert testimony. Specifically, it argues that the circuit court should have permitted its expert to answer the following question:

“Mr. Schall, again, based upon your knowledge and experience as a pool designer of twenty years and your knowledge and experience of this product from its development to today’s date, and based upon the testing that you performed on this similar product that we observed in that video tape film, this product, assuming that all the parts are Esther Williams supplied parts, assuming that the pool is constructed in the manner intended by Esther Williams according the the [sic] instruction of assembly by Esther Williams, assuming there are no defects in any of the component parts of a pool such as this, do you have an opinion based upon a reasonable degree of certainty as to whether this pool would fail if a hundred and fifty pounds were leaning on it in the absence of some prior abuse or misuse of the product?”

The only objection to the question interposed by Esther Williams and sustained by the circuit court was that the question calls for speculation. We disagree. While an expert witness may not decide any controverted fact or offer an opinion on facts not in evidence (Saunders v. Norfolk & Western Ry. Co. (1977), 54 Ill. App. 3d 307, 315, 369 N.E.2d 518, 524), he may, on the basis of facts assumed to be true, give his opinion as to what could have been a cause to a given effect “despite any objection that his testimony is inconclusive and speculative.” (Beloit Foundry v. Industrial Comm’n (1976), 62 Ill. 2d 535, 539, 343 N.E.2d 504, 506; see also Chicago Union Traction Co. v. Roberts (1907), 229 Ill. 481, 483, 82 N.E. 401, 402.) In this case Schall, an expert, was asked to give his opinion, on the basis of facts assumed to be true, as to whether the pool railing would fail absent prior misuse or abuse. He was not called on to decide a controverted fact, and there is no objection that the question assumes facts not in evidence.

On Esther Williams’ earlier attempts to obtain an opinion as to similar questions, the circuit court sustained objections, suggesting that there was no evidence to support the assumption that the pool railing had been misused or abused. It thus concluded that the expert’s opinion on such assumptions would be mere conjecture. (See Boose v. Digate (1969), 107 Ill. App. 2d 418, 422-23, 246 N.E.2d 50, 52-53.) The record indicates, however, that the railing was not designed to be climbed upon and that Isaacson’s sons climbed upon the railing. Such facts are evidence of misuse or abuse of the railing sufficient to provide a factual assumption of misuse of the railing in the hypothetical posed to Mr. Schall. Mr. Schall should have been permitted to give his opinion to the question posed, and, because such testimony provides the factual basis for the counterplaintiff’s suit, we conclude that the exclusion of his testimony constitutes reversible error.

Esther Williams argues, finally, that the circuit court erred in directing a verdict in favor of Isaacson. Directed verdicts are appropriate only in those cases in which the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors the movant that no contrary verdict based upon that evidence could ever stand. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504, 513-14.) Thus, to avoid a directed verdict in this case, Esther Williams was required to establish by some evidence or reasonable inference that Isaacson breached a duty owed to Maroldy and that Isaacson’s breach was the proximate cause of Maroldy’s injuries. Ferentchak v. Village of Frankfort (1985), 105 Ill. 2d 474, 480, 475 N.E.2d 822, 825.

In this case Esther Williams asserts that Isaacson was negligent in failing to maintain the pool and its railing in a state of good repair, in failing to repair the pool railing and in failing to warn Maroldy of the railing’s state of disrepair. Evidence in the record which supports such a theory of negligence includes the inference that something must have been wrong with the railing for it to break so easily under the slight pressure which was applied to it at the time of Maroldy’s fall, the evidence (via the testimony of Mr. Schall which, we have concluded, should have been admitted) that there must have been some abuse to the railing prior to Maroldy’s leaning against the railing, and the evidence that Isaacson’s sons climbed upon the railing with the accompanying fact that Isaacson on one occasion caught one of her sons climbing on the railing. Such evidence could support a finding of breach of a duty to maintain the railing in a state of good repair, and assuming such a duty exists, when coupled with the evidence of Maroldy’s fall and injuries could support a verdict of negligence. Accordingly, we conclude that the circuit court erred in directing a verdict.

For these reasons, we reverse the judgment of the- circuit court of Will County and remand with directions that the counterplaintiff be awarded a new trial in accord with the views expressed herein.

Reversed and remanded.

WOMBACHER, P.J., and SCOTT, J., concur.


author: PRESIDING JUSTICE WOMBACHER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FRANKIE KNOTT, Defendant-Appellant.
    Third District
    No. 3—87—0608
    Opinion filed June 23, 1989.

      Jack Schwartz, of Braud Warner, Ltd., of Rock Island, for appellant.

      Greg McClintock, State’s Attorney, of Monmouth (John X. Breslin, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE WOMBACHER

delivered the opinion of the court:

The trial court denied the defendant’s motion to dismiss for failure to try her within 160 days (Ill. Rev. Stat. 1987, ch. 38, par. 103— 5). The court subsequently found her guilty of driving under the influence of alcohol and driving with a breath-alcohol concentration of .10 or more (Ill. Rev. Stat. 1987, ch. 95V2, pars. 11 — 501(a)(2), 11— 501(a)(1)). The defendant appeals.

The record shows that on March 29, 1986, the defendant, Frankie Knott, was charged by uniform traffic citation with driving under the influence of alcohol (Ill. Rev. Stat. 1987, ch. 95V2, par. 11 — 501(a)(2)). She immediately posted bond and was released. On April 24, 1986, the State moved without objection to also charge her by information with driving with a breath-alcohol concentration of .10 or more (Ill. Rev. Stat. 1987, ch. 95V2, par. 11 — 501(a)(1)). The defendant then pled not guilty on both counts and demanded a jury trial.

On February 11, 1987, the defendant filed a motion to dismiss for failure to try her within 160 days. Following a hearing, the court denied her motion. The defendant then waived her right to a jury trial and the case was set for a bench trial.

At the defendant’s trial, Henry Jahde testified that on March 29, 1986, around 1:10 or 1:15 p.m., he saw two women in a gray, two-door Oldsmobile with Illinois dealer’s license plate 90IX. They were driving in a drunken manner, and when they exited the car at one point, the driver appeared to have trouble standing. Jahde described the driver as the shorter of the two women, with darker hair and wearing gray slacks and a dark top. He called the police and shortly thereafter told a responding officer the direction in which the car had gone.

Frank Bishop testified to seeing essentially the same events, though he stated that he could not identify the driver. He noted that he was at the police station when they brought the defendant in around 1:30 p.m. She appeared to be the same person who had been driving the gray car.

Monmouth police officer Dale Heiser testified that at 1:13 p.m. on March 29, 1986, he was dispatched to look for a gray car with license plate number DL 901X, being operated by a possibly intoxicated driver. He spoke with Jahde, then proceeded in the direction in which the gray car had gone. He subsequently saw a gray Oldsmobile with dealer plates pull up across from the Palace Tap. He watched two women exit from the car and saw that the defendant had been driving. Both women walked slowly and had poor balance. At 1:19 p.m., Officer Heiser went into the tavern, which he knew the defendant owned, and asked her to come outside so he could speak with her. The defendant came outside and admitted that she had been driving the gray Oldsmobile. She stated, however, that she had not done anything wrong. She explained that her erratic driving observed by Jahde and Bishop had been connected with her attempt to offer her brother-in-law a ride. Officer Heiser noticed that the defendant’s speech was slurred, her eyes were bloodshot and watery, and her balance was poor. He believed she was intoxicated. Heiser then left to obtain signed complaints from the witnesses. After leaving statement forms with Jahde and Bishop, he returned to the tavern and arrested the defendant at 1:46 p.m. Heiser noted that he watched the defendant take a breath-alcohol test at 2:30 p.m., and that her result was .19.

Monmouth police officer Terry Owens testified that he administered the breath test to the defendant, that he was certified to do so, and that he followed all of the proper procedures. Officer Owens stated that the machine worked properly during the test and that the defendant’s breath registered a .19 alcohol concentration. He further noted that from his observations of the defendant’s behavior he believed she was intoxicated. Owens denied striking the machine and did not recall the defendant’s having to blow into the machine more than once.

The defendant testified that on the day in question she went to the Hard Times tavern about 9 or 9:30 a.m. with her sister and brother-in-law. She had two or three alcoholic drinks, then left with her sister. She was driving a silver Chevrolet with a white vinyl top and dealer’s plates. They subsequently spotted her sister’s husband, who had left before them, and offered him a ride. They never got out of the car before they arrived at the Palace Tap. Arriving at the Palace Tap, they went inside. About 12:15 p.m., Officer Heiser entered and thereafter told her that if he obtained two signed complaints he would arrest her. Because she was nervous about being arrested, she drank 6 to 10 alcoholic drinks. Around 1:46 p.m., Heiser returned and arrested her. The defendant further testified that during the breath test, the officer administering it hit the machine and made her blow into it three times in order to get it to work. On cross-examination, the defendant denied ever slamming on her car’s brakes, driving repeatedly back and forth, or sliding down in the seat, as Jahde and Bishop had reported.

Jim Boyd testified that he was a customer in the Palace Tap at the times in question. He saw the defendant arrive around 11:30 a.m. and Officer Heiser arrive around 11:45 a.m. After the officer left, Boyd said he watched the defendant continue drinking and get drunk. Officer Heiser returned 40 to 60 minutes later and arrested the defendant. Boyd opined that the defendant was not intoxicated when Heiser was there the first time, but was intoxicated when he returned.

Jerry Howell testified that he remembered seeing the defendant enter the Hard Times Saloon around 10:30 to 10:45 a.m. and leave around 11:20 a.m. Everett Cook testified that before 11:30 a.m. he saw the defendant park her car across from the Palace Tap and walk into the tavern. He did not believe she was intoxicated. About five minutes later, he saw a police car pull up and an officer enter the tavern.

The defendant’s sister testified that they had gone to the Hard Times Saloon around 9:30 a.m. The defendant drank two to four alcoholic drinks, then they left around 11 or 11:30 a.m. She remembered slowing down to offer her husband a ride, but did not remember backing up. She denied ever getting out of the car. They arrived at the Palace Tap before noon. Five to ten minutes later, a police officer arrived. The officer left and returned 40 to 45 minutes later. By then, the defendant was intoxicated.

The defendant’s husband testified that he had called the Hard Times Saloon about 11:15 a.m. and talked with his wife. When he called back, he learned she was no longer there. About noon, he called the Palace Tap and was told she was there.

In rebuttal, Officer Heiser testified about his activities prior to the defendant’s arrest. He accounted for the time before 1:13 p.m., when he received the dispatch relating to the defendant. The State also introduced into evidence the police radio logs showing that the report of a drunken driver had come in at 1:13 p.m., that Officer Heiser had reported observing the defendant’s vehicle at 1:14 p.m., that the officer had left the bar at 1:27 p.m., and that at 1:42 p.m. he had reported his return to the bar.

The trial court found the defendant guilty of driving under the influence of alcohol and driving with a breath-alcohol concentration of .10 or more. It sentenced her to pay a $500 fine, plus costs and penalties, and to serve seven days in jail.

On appeal, the defendant first argues that the trial court erred in denying her motion to dismiss based on the State’s failure to try her with 160 days of her jury demand.

Before addressing that contention, we note that the State has filed a motion to strike parts of the defendant’s brief which rely on matters outside the record. To the extent the defendant relies on matters outside the record, we grant the State’s motion.

Turning to the defendant’s argument, we note that when the defendant is charged by a uniform citation and complaint, Supreme Court Rule 505 (107 Ill. 2d R. 505) provides that if the accused intends to plead not guilty and demand a jury trial, he shall so notify the clerk of the court at least five days before the day set for his appearance; trial shall then be scheduled within the time prescribed by section 103 — 5 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1983, ch. 38, par. 103 — 5). Section 103 — 5(b) of the Code provides that with certain exceptions every person free on bail or recognizance shall be tried within 160 days from the date he demands trial. Ill. Rev. Stat. 1985, ch. 38, par. 103 — 5(b).

Accordingly, a person charged with an offense by means of a traffic ticket, who is free on bail and demands a jury trial, must generally be afforded a jury trial within 160 days of his demand. (People v. Seaberry (1980), 86 Ill. App. 3d 369, 408 N.E.2d 51.) The subsequent filing of an information by the prosecution has no impact on the efficacy of the defendant’s prior demand for trial by jury. (People v. McCarrey (1984), 122 Ill. App. 3d 61, 460 N.E.2d 781; People v. Mears (1980), 84 Ill. App. 3d 265, 405 N.E.2d 443.) However, when the prosecution charges the defendant simultaneously by a traffic citation and by an information, Rule 505 does not apply and the defendant must expressly request a speedy trial. People v. Davis (1982), 104 . App. 3d 120, 432 N.E.2d 947.

We find Davis controlling in the instant case. While here the traffic ticket and the information were not filed simultaneously, they were both filed before the defendant entered her plea and demanded a jury trial. The. defendant could have preserved her rights under Rule 505 by sending the proper notice to the clerk of the court prior to her appearance date. She did not do so. There is no indication the State was attempting to evade the speedy trial statute, and the policy reasons for prohibiting the State from such legal maneuvering are not present. Accordingly, since the defendant was charged by information prior to pleading and demanding a jury trial, she could not rely on Rule 505, but was required to specifically request a speedy trial. Since she failed to do so, the trial court properly denied her motion to dismiss.

The defendant’s second argument on appeal is that the trial court erred in allowing into evidence the police radio logs. She did not raise this issue in a post-trial motion, and no plain error is involved. Accordingly, the issue is waived. People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.

The defendant’s third argument on appeal is that the State did not prove her guilty beyond a reasonable doubt of the charged offenses.

Once a defendant has been convicted, the reviewing court views the evidence in the light most favorable to the prosecution, and the relevant question is whether any rational trier of fact could have found the essential elements of the charged offense beyond a reasonable doubt. (People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267.) The reviewing court will not substitute its judgment for that of the trier of fact on questions involving the weight to be given the evidence and the credibility of the witnesses. People v. Kline (1982), 92 Ill. 2d 490, 442 N.E.2d 154.

In the instant case, the defendant presented evidence showing that she became intoxicated only after Officer Heiser left the Palace Tap the first time. Conversely, the State presented evidence showing that she was intoxicated when she drove from the Hard Times Saloon to the Palace Tap. Accordingly, the issue of whether she drove while under the influence of alcohol presented weight and credibility questions for the trier of fact. We find from the evidence that a rational trier of fact could have found the defendant guilty beyond a reasonable doubt of driving under the influence of alcohol.

Regarding whether the defendant drove with a breath-alcohol concentration of .10 or more, the undisputed evidence showed that she drank alcoholic beverages in between driving and taking the breath test. Such evidence did not, however, invalidate the breath-test result, but only went to the weight to be accorded it. (See People v. Dever (1975), 26 Ill. App. 3d 213, 324 N.E.2d 641.) Given the overall evidence and the breath-test result of .19, we find that a rational trier of fact could have found the defendant guilty beyond a reasonable doubt of driving with a breath-alcohol concentration of .10 or more.

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

Affirmed.

STOUDER and BARRY, JJ., concur.