author: JUSTICE DOYLE

text:
    ELIZABETH BELLERIVE, Plaintiff-Appellant, v. HILTON HOTELS CORPORATION, d/b/a The Palmer House, Defendant-Appellee.
    Second District
    No. 2 — 92—0774
    Opinion filed June 18, 1993.

      Heidi J. Aavang and Robert J. Masini, both of Diver, Grach, Quade & Masini, of Waukegan, for appellant.
    Edward M. Rubin, Thomas H. Fegan, and Mindy Kallus, all of Johnson & Bell, Ltd., of Chicago, for appellee.
   JUSTICE DOYLE

delivered the opinion of the court:

Plaintiff, Elizabeth Bellerive, appeals the order of the circuit court of Lake County granting summary judgment to defendant, Hilton Hotels Corporation. The issue on appeal is whether plaintiff identified with sufficient specificity the cause of her slip-and-fall injury.

Plaintiff filed a complaint in which she alleged she fell while walking down the stairs of the Palmer House, a hotel operated by defendant. Plaintiff alleged defendant was negligent because it failed to maintain adequate lighting over the stairwell; failed to provide adequate traction on the stair surfaces; failed to provide a continuous handrail; and failed to maintain the structure of the stairs by allowing them to become deformed and bowed.

Defendant deposed plaintiff and used her testimony to support its motion for summary judgment. Plaintiff did not notice any debris on the steps but noticed the steps were old and the rubber strips on the steps were old. She stated the steps were not level and not well lit. She cautiously descended the staircase but fell on the second or third step from the bottom. Plaintiff did not see any difference between these two steps and the higher steps. Although the left-hand side handrail was not continuous, she held onto it with her left hand, and thus she was close to the side of the stairs. Plaintiff was looking down as she stepped down from the third step. She felt that her foot was not quite level. However, at the deposition she could not draw an “X” on the spot of the photograph of the stairs corresponding to the place where the step was uneven. She did not know exactly what spot her foot was on as she fell and could tell only what she felt. She fell forward and landed on her stomach. Although she held the rail, gravity pulled her down. She also stated:

“Q. [Defense counsel]: So you are saying it was so slick that it forced you to fall forward. Is that right?
A. No. I am not saying the step was slick. No, no, I didn’t say that.
Q. What are you saying?
A. I am saying that my foot was not on level ground. There was like a wear in the steps, a little indentation or something from being worn.
Q. And is that what you believe caused you to fall.
A. Pardon?
Q. It is that that you believe caused you to fall?
A. I don’t know. It certainly had some part in it.
Q. Do you know, as you sit here today, what caused you to fall?
A. No, I cannot say for certain. I am just trying to describe the best that I can. I know you want to hit the nail on the head, and I am trying to do that for you.”

Defendant argued that plaintiff could not state what caused her to fall and moved for summary judgment. The trial court granted the motion, and she appeals.

The purpose of summary judgment is not to try an issue of fact but to determine if one exists. (Frye v. Medicare-Glaser Corp. (1992), 153 Ill. 2d 26, 31.) A motion for summary judgment should be granted only when the pleadings, depositions, and affidavits reveal there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1991, ch. 110, par. 2— 1005(c).) Summary judgment is a drastic means of ending litigation and should be granted only when the right of the moving party is free from doubt. (Loyola Academy v. S & S Roof Maintenance, Inc. (1992), 146 Ill. 2d 263, 271.) In determining whether the moving party is entitled to summary judgment, the court must construe the pleadings, depositions and affidavits strictly against the movant and liberally in favor of the opponent. The court may draw reasonable inferences from the undisputed facts, but where reasonable persons could draw divergent inferences from the undisputed facts, the issue should be decided by a trier of fact and the motion denied. (Loyola Academy, 146 Ill. 2d at 271-72.) In light of this standard, the trial court does not have discretion in granting or denying the motion. (Loyola Academy, 146 Ill. 2d at 272; Quinton v. Kuffer (1991), 221 Ill. App. 3d 466, 470-71.) While the court may draw inferences from undisputed facts, the court should not grant a motion for summary judgment unless those facts are susceptible of only a single inference, and, if the facts permit more than one conclusion or inference, including one unfavorable to the moving party, a summary judgment should be denied. (Gardner v. Navistar International Transportation Corp. (1991), 213 Ill. App. 3d 242, 252; Beverly Bank v. Alsip Bank (1982), 106 Ill. App. 3d 1012, 1017.) While a plaintiff need not prove her case during summary judgment, she must present some evidentiary facts to support the elements of her cause of action. Gardner, 213 Ill. App. 3d at 250.

To prevail on her claim of negligence, plaintiff had to show that the stairs were unreasonably dangerous and prove that the dangerous condition of the stairs caused her injury. (Glass v. Morgan Guaranty Trust Co. (1992), 238 Ill. App. 3d 355, 359.) Stairs by themselves are not unreasonably dangerous; they must have some defect which caused the plaintiff injury. (Alcorn v. Stepzinski (1989), 185 Ill. App. 3d 1, 6-7; see Hartung v. Maple Investment & Development Corp. (1993), 243 Ill. App. 3d 811, 816; Tracy v. Village of Lombard (1983), 116 Ill. App. 3d 563, 569.) Substantially worn marble steps forming an uneven surface can form the basis of liability for negligence. (Holsman v. Darling State Street Corp. (1955), 6 Ill. App. 2d 517, 521-22.) However, liability cannot be predicated upon surmise or conjecture as to the cause of the injury (Kalata v. Anheuser-Busch Cos. (1991), 144 Ill. 2d 425, 437), and proximate cause can be established only when there is a reasonable certainty that the defendant’s act caused the injury (Chmielewski v. Kahlfeldt (1992), 237 Ill. App. 3d 129, 137; Kimbrough v. Jewel Cos. (1981), 92 Ill. App. 3d 813, 817-18).

If the plaintiff cannot identify the cause of her fall or can only surmise the cause, a court cannot find the defendant liable in negligence. (Kimbrough, 92 Ill. App. 3d at 818.) In Kimbrough, the plaintiff testified that she had no idea why she fell when exiting the defendant’s store. (92 Ill. App. 3d at 816.) While she did see spots of grease on the floor, she could not say she slipped on them. Thus, she could not prove the condition of defendant’s store was the proximate cause of her injury. (92 Ill. App. 3d at 818; see also Darrough v. Glendale Heights Community Hospital (1992), 234 Ill. App. 3d 1055, 1061-62; Kellman v. Twin Orchard Country Club (1990), 202 Ill. App. 3d 968, 975.) In Koukoulomatis v. Disco Wheels, Inc. (1984), 127 Ill. App. 3d 95, 101, the plaintiff could only surmise that the carpet “[mjust have gone up a little bit that I tripped over it”; she had not seen or felt anything wrong with the carpet. This conjecture was insufficient to establish causation for negligence. 127 Ill. App. 3d at 101.

Defendant argues that plaintiff could not say with certainty what caused her to fall and could not point to the defective condition in the photograph of the stairs. Plaintiff cites Lapidus v. Union Oil Co. (1989), 181 Ill. App. 3d 116, 119, and Canzoneri v. Village of Franklin Park (1987), 161 Ill. App. 3d 33, 39, in which the plaintiffs in their depositions could not be specific as to where they fell, but circumstantial evidence indicated the location of the falls. Here, plaintiff notes that the fall occurred as she put her foot down from the third to the second step near the left side of the stairs. While plaintiff did not see where she put her foot, she felt the step was uneven. During the questioning immediately prior to the excerpted portion of the transcript, plaintiff and defense counsel repeatedly referred to the unevenness as a cause of the fall. Taking the obvious import of her words, plaintiff stated that the worn and unlevel condition was at least a partial cause of her fall. Because we are obliged to draw inferences in favor of the opponent to summary judgment (Loyola Academy, 146 Ill. 2d at 271-72; Alcorn, 185 Ill. App. 3d at 8), we must accept that plaintiff testified that the worn steps caused her to fall. Defendant cites no authority that a defendant cannot be held liable when it is responsible for only part of the cause of an injury. Thus, a material issue exists regarding defendant’s liability, and summary judgment should have been denied.

For the above reasons, the order of the circuit court granting defendant’s motion for summary judgment is reversed, and the cause is remanded for further proceedings.

Reversed and remanded.

GEIGER and QUETSCH, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE INGLIS

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WAYNE A. DONOHO, Defendant-Appellant.
    Second District
    No. 2 — 91—0794
    Opinion filed June 16, 1993.
    G. Joseph Weller and Patrick M. Carmody, both of State Appellate Defender’s Office, of Elgin, for appellant.
    David R. Akemann, State’s Attorney, of Geneva (William L. Browers, Robert J. Biderman, and Rebecca L. White, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE INGLIS

delivered the opinion of the court:

Defendant, Wayne A. Donoho, was convicted of residential burglary (111. Rev. Stat. 1989, ch. 38, par. 19-3 (now 720 ILCS 5/19-3 (West 1992))) and burglary (111. Rev. Stat. 1989, ch. 38, par. 19 — 1 (now 720 ILCS 5/19 — 1 (West 1992))). The trial court sentenced him on the residential burglary conviction and imposed a seven-year term of imprisonment. On appeal, defendant contends that he was denied a fair trial because the prosecutor attempted to indoctrinate the jury on a matter of law during voir dire and because the jury was improperly instructed on the definition of “dwelling.”

We restate only those facts that are pertinent to the issues on appeal. Defendant was charged with residential burglary, burglary and battery for an incident occurring on November 26, 1990. Glen Lee Steger testified that she was going to take her dog outside late that evening. She had previously opened the door to her attached garage using the automatic door opener. When Steger opened the front door of her home to take out the dog, the dog went into the garage. Steger followed the dog and saw a man come out of the garage and walk toward her. A second person came out of the garage and disappeared around the corner. Steger started screaming and awakened her son, who ran after the man and caught up with him.

Steger’s son testified that he grabbed the man’s arm, told the man that he was not going anywhere, and directed his mother to call the police. Steger’s son further testified that the man told him he was “scrounging for some change.” The man eventually hit Steger’s son in the back of the head and fled in a red and white automobile. Steger reported to the police that some change was missing from the vehicle that was parked in her garage.

Defendant was arrested later that evening, and the case went to trial on March 6, 1991. While picking the jury, the prosecutor asked four jurors if they agreed that their garages were part of their houses, to which each juror responded in the affirmative. After all the evidence had been presented, the jury, among other instructions, was instructed on the definition of “dwelling.” The instruction provided as follows:

“The word ‘dwelling’ means a building or portion of a building which is used or intended for use as a human habitation, home or residence.”

The jury found defendant guilty of residential burglary and burglary. After defendant’s post-trial motions were denied, he was sentenced to seven years’ imprisonment on the residential burglary conviction. He then filed a timely appeal.

Defendant acknowledges that his appellate contentions could be considered as waived because his trial counsel failed to object both to the questions during voir dire and the instruction given to the jury. (People v. Enoch (1988), 122 Ill. 2d 176, 186 (an objection at trial and a written post-trial motion raising the issue are required to preserve the issue for review).) Under Supreme Court Rule 451(c), in the interests of justice, substantial defects in instructions in criminal cases are not waived by failure to make a timely objection. (134 Ill. 2d R. 451(c).) We believe the interests of justice require that we address whether the jury was properly instructed on the definition of “dwelling.” See People v. Reddick (1988), 123 Ill. 2d 184,198.

“Burglary” is defined, in pertinent part, in section 19 — 1 of the Criminal Code of 1961 (the Code):

“A person commits burglary when without authority he knowingly enters or without authority remains within a building, housetrailer, watercraft, aircraft, motor vehicle ***, railroad car, or any part thereof, with intent to commit therein a felony or theft.” (111. Rev. Stat. 1989, ch. 38, par. 19 — 1(a) (now 720 ILCS 5/19-l(a) (West 1992)).)

“Residential burglary” is defined as follows:

“A person commits residential burglary who knowingly and without authority enters the dwelling of another with the intent to commit therein a felony or theft.” (Emphasis added.) (111. Rev. Stat. 1989, ch. 38, par. 19 — 3(a) (now 720 ILCS 5/ 19 — 3(a) (West 1992)).)

“Dwelling” has two distinct definitions in section 2 — 6 of the Code:

“(a) Except as otherwise provided in subsection (b) of this Section, ‘dwelling’ means a building or portion thereof, a tent, a vehicle, or other enclosed space which is used or intended for use as a human habitation, home or residence.
(b) For the purposes of Section 19 — 3 of this Code [the residential burglary provision], ‘dwelling’ means a house, apartment, mobile home, trailer, or other living quarters in which at the time of the alleged offense the owners or occupants actually reside or in their absence intend within a reasonable period of time to reside.” 111. Rev. Stat. 1989, ch. 38, par. 2-6 (now 720 ILCS 5/2-6 (West 1992)).

The sole function of jury instructions is correctly to inform the members of the jury of the applicable principles of law. (People v. Cozart (1992), 235 Ill. App. 3d 1076, 1082.) The trial judge has discretion in deciding which instructions will be submitted to the jury. (People v. Johnson (1992), 236 Ill. App. 3d 125, 137.) An error in a jury instruction is harmless if it can be shown that the trial result would not have been different if the proper instruction was given. People v. Johnson (1991), 146 Ill. 2d 109,137.

We find that the trial court erred by improperly instructing the jury on the definition of “dwelling” and that the incorrect instruction may have affected the outcome of the trial. (See People v. Fierer (1988), 124 Ill. 2d 176, 187-88.) Section 2 — 6(b) of the Code, which was in effect at the time of trial, defined “dwelling” in a substantially different manner than the definitional instruction provided to the jury. The definition in section 2 — 6(b) was the only definition needed for “dwelling.” “Dwelling” was not included in the definition of “burglary” given to the jury. Only the definition of “residential burglary” given to the jury included the word “dwelling.” Thus, “dwelling” was defined only for purposes of explaining the elements of residential burglary and should have been identified consistently with the language in section 2 — 6(b) of the Code.

We believe it was possible that defendant may have been acquitted of the charge of residential burglary if an instruction consistent with section 2 — 6(b) of the Code had been given to the jury. The instruction given to the jury more likely would include an attached garage than the definition in section 2 — 6(b). An attached garage is a “portion of a building which is used *** as a *** home or residence.” However, it does not necessarily follow that an attached garage is “a house, apartment, mobile home, trailer, or other living quarters in which *** the owners or occupants actually reside.” 111. Rev. Stat. 1989, ch. 38, par. 2-6(b) (now 720 ILCS 5/2-6(b) (West 1992)).

The IPI jury instruction for residential burglary, applicable at that time, also referred the user to section 2 — 6 of the Code for the definition of “dwelling.” (Illinois Pattern Jury Instructions, Criminal, No. 14.09, Committee Note (2d ed. Supp. 1989) (hereinafter IPI Criminal 2d).) A reference to the statute would have revealed that section 2 — 6(b), defining “dwelling” for purposes of the residential burglary statute, had been enacted effective January 1, 1987. (111. Rev. Stat. 1989, ch. 38, par. 2-6(b) (now 720 ILCS 5/2-6(b) (West 1992)).) Even though the definition of dwelling in the IPI jury instructions had not been revised to include the definition of “dwelling” in section 2 — 6(b) (see IPI Criminal 2d No. 4.03 (1981)), IPI Criminal 2d No. 14.09 (Supp. 1989) adequately alerted practitioners to use the definitions in section 2 — 6 when defining “dwelling.”

Our decision is not intended, nor should it be interpreted, to answer whether, as a matter of law, an attached garage is part of a house for purposes of the residential burglary statute. (See People v. Thomas (1990), 137 Ill. 2d 500, 519 (an attached garage is not necessarily a “dwelling” under the residential burglary statute); People v. Bales (1985), 108 Ill. 2d 182, 191 (the court declined to decide the precise boundaries of the phrase “dwelling place of another”).) We only hold that when a defendant is tried for residential burglary, the jury should be given a definition of “dwelling” that is consistent with the language of section 2 — 6(b) of the Code.

Because the jury also found defendant guilty of burglary and the trial court entered judgment on that verdict, he can be sentenced on that conviction. We reverse defendant’s conviction of residential burglary, vacate his seven-year sentence for residential burglary and remand the cause either for sentencing on the burglary conviction or a new trial on residential burglary. We have reviewed the evidence and find that it was sufficient to support the conclusion that defendant was guilty beyond a reasonable doubt of residential burglary. This finding does not constitute in any way an implication as to defendant’s guilt or innocence which would be binding on retrial, but is intended only to protect defendant from the risk of double jeopardy. People v. Taylor (1979), 76 Ill. 2d 289.

Conviction of residential burglary is reversed, sentence is vacated, and the cause is remanded either for retrial for residential burglary or sentencing for burglary.

Reversed and remanded with directions.

GEIGER and DOYLE, JJ., concur.


author: JUSTICE QUETSCH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL KABAKOVICH, Defendant-Appellant.
    Second District
    No. 2 — 91—0638
    Opinion filed June 18, 1993.
    G. Joseph Weller, of State Appellate Defender’s Office, and Josette Skelnik, of Law Offices of Josette Skelnik, both of Elgin, for appellant.
    James E. Ryan, State’s Attorney, of Wheaton, and Robert J. Morrow, of Early, Collison, Tousey, Regan, Wlodek & Morrow, of Elgin (William L. Browers, Lisa Anne Hoffman, and John X. Breslin, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE QUETSCH

delivered the opinion of the court:

Defendant, Michael Kabakovich, appeals his conviction of the unlawful delivery of a controlled substance (111. Rev. Stat. 1989, ch. 56V2, par. 1401(b)(2) (now codified, as amended, at 720 ILCS 570/ 401(c)(2) (West 1992))). Defendant argues that the trial court improperly allowed into evidence the hearsay statements of an alleged coconspirator without sufficient proof that defendant and the declarant were engaged in a conspiracy.

Before a court may allow into evidence the hearsay statements of a coconspirator against a defendant, the State must present prima facie proof that the defendant and the hearsay declarant were in fact engaging in a conspiracy. (People v. Deatherage (1984), 122 Ill. App. 3d 620, 623.) The proof of the conspiracy must be established by independent, nonhearsay evidence prior to the admission of the hearsay statements. (122 Ill. App. 3d at 623.) Without proof of a joint venture, the hearsay statements are inadmissible in a trial of the defendant’s guilt. (122 Ill. App. 3d at 624.) A defendant’s mere knowledge of or acquiescence to an illegal act does not constitute a conspiracy. People v. Darnell (1990), 214 Ill. App. 3d 345, 362.

At the trial in the cause before the court, the State introduced evidence concerning four deliveries of cocaine, although defendant was charged with the offense for July 17, 1990, only. On June 7, 1990, Agent Larry Weiss of the Du Page Metropolitan Enforcement Group (DuMEG) met Thomas Stark at the Cloverdale Tap in Bloomingdale. They entered Weiss’ undercover car and drove to a house on St. Charles Road near Wheaton. Weiss gave $450 to Stark, who went into the house for a few minutes and returned with a quarter ounce, of cocaine wrapped in gauze. Outside the house was a white Mustang automobile registered to defendant with an address in Westmont. Weiss then drove back to the bar with Stark.

On June 13, 1990, Weiss was in the bar and saw defendant give Stark a birthday card. Later, Weiss gave Stark $440. Stark left the bar with defendant, and they were gone about 15 minutes. Outside, Agent William Simmons of DuMEG saw defendant and Stark get into the Mustang. Simmons followed the car, which defendant drove to the Wheaton house. Defendant and Stark were in the house only for a couple minutes, and then defendant drove Stark back to the bar. Stark entered the bar and came outside with Weiss. Stark went into Weiss’ car, and Stark handed Weiss four bags of cocaine.

On June 28, 1990, Weiss met Stark at the bar at 8:08 p.m. At 10:26 p.m. Weiss returned to the bar and saw defendant, who was alone. Weiss went outside, saw Stark, and gave him $450. Stark started to go inside when defendant walked out the door. Defendant and Stark talked inside the white Mustang. Stark walked back inside the bar, and Weiss gave him an additional $350. Stark returned to defendant and talked by the white Mustang for a couple minutes. Stark came back, and Stark and Weiss walked outside to Weiss’ car. During a short drive, Stark gave Weiss a half ounce of cocaine.

On July 18, 1990, the day on which the indictment was based, Weiss made a telephone call to Stark from a pay telephone in a Builder’s Square parking lot. After 39 minutes, the white Mustang drove into the lot, circled, and parked in an adjoining lot. Stark exited the car and walked to Weiss’ car. Stark and Weiss talked inside the car, and then Stark walked back to the Mustang and got in it. After a short period, Stark returned to Weiss. Weiss gave him $600 in bills which Weiss had previously photocopied. Stark went back to the Mustang and returned to Weiss with seven one-sixteenth-ounce bags of cocaine. Weiss activated the arrest signal.

Agent Raymond McGury watched the events in the parking lot. While Stark had walked to Weiss’ car the first time, the Mustang moved to a spot inside the Builder’s Square lot. Defendant exited from the driver’s seat, and Russell Marcellis exited from the passenger’s seat. They opened the hood of the car and looked at the engine for a couple minutes. When Stark returned, the men closed the hood and entered the car. When Stark walked back to Weiss’ car, the Mustang moved closer to the car.

When Weiss made the signal, McGury and other agents converged upon the Mustang. Defendant ran into a marsh and a ravine. A canine unit arrested him an hour later. Marcellis did not run. Stark and Weiss found the $600 of recorded bills underneath the floor mat of the driver’s side floorboard.

At this point in the trial, the court recessed to consider allowing the State’s proffered hearsay statements of Stark. The court allowed the statements and overruled defendant’s objection.

After the recess, Weiss testified he met Stark on June 3, 1990, in the Cloverdale Tap. Stark told him that he could not sell cocaine because “his guy” was out of town. On the other occasions, Stark repeatedly referred to obtaining cocaine from “his guy.” When they went to the Wheaton house, Stark said the weight of the cocaine was accurate because he watched “his guy” measure it on a scale. Weiss testified that he and Stark made frequent negotiations, with Stark leaving to confer with “his guy” to check on the availability of greater amounts of cocaine. Stark called to his friend “Mike” and told Weiss to wait in the bar while he worked on the price of the cocaine; Stark then talked with defendant. Stark told Weiss that “Mike” had lost two one-sixteenth-ounce bags in his car. After defendant was arrested, he gave his address as the house near Wheaton. Weiss testified that while he was in the bar he spent most of his time throwing darts. Weiss never saw defendant with drugs or taking money. Weiss never searched Stark prior to his trips to defendant.

Defendant testified that on July 17, 1990, Stark, a friend from the Cloverdale Tap, asked him for a ride to a festival in Glendale Heights. Stark told him he had to stop at the Builder’s Square lot to meet a friend. Defendant denied possessing any drugs and denied knowing Stark was going to sell drugs. Defendant and Marcellis went outside the car to remove the lens covers from the headlights. Stark came back and told defendant that he needed more time to talk to his friend to determine if the friend wanted a ride or if he would stay by the car. After Stark left, men with guns ran towards him through the dark parking lot. Defendant testified that he “freaked” and ran away. Defendant denied putting $600 under his seat. Defendant said he frequently went to the Cloverdale Tap to play darts.

The trial court found defendant accountable for the delivery of the cocaine and entered a conviction. The court sentenced him to 41/2 years’ imprisonment and imposed a fine of $1,000.

Defendant argues that the trial court erred in finding that the State had demonstrated a prima facie case of a conspiracy so as to admit the hearsay statements of Stark as a coconspirator. Defendant argues that the evidence introduced prior to the hearsay statements did not show defendant agreed to any joint venture with Stark such that they became conspirators; defendant notes the State must show a defendant made affirmative acts of agreement. Darnell, 214 Ill. App. 3d at 362.

The State argues that evidence of the conspiracy was shown by Stark’s visits with defendant every time Stark delivered cocaine to Weiss and by the presence of the money under defendant’s floor mat in a small car. The trial court mentioned that it relied on People v. Goodman (1980), 81 Ill. 2d 278. In Goodman, the police found the marked currency on the defendant after the transaction; the court inferred a conspiracy from this evidence. (81 Ill. 2d at 284.) Similarly, here, the police found the $600 in an area under defendant’s control. The driver and owner of a car who has immediate and exclusive control over the inside of the passenger area has the constructive and knowing possession of an item within his immediate access and control. (People v. McNeely (1981), 99 Ill. App. 3d 1021, 1024-25.) Agent McGury saw that defendant was the only driver of the car on July 17. The record permits a fair inference that the driver knew what someone was placing under his feet where the car was small.

Defendant cites two similar cases where the defendants were charged with delivering a controlled substance when they drove the codefendants to the delivery spot. (People v. Darnell (1990), 214 Ill. App. 3d 345; People v. Duckworth (1989), 180 Ill. App. 3d 792.) The mere appearance of the defendant at the delivery site did not create an inference that the alleged conspirators were in agreement. (Duckworth, 180 Ill. App. 3d at 795.) In Duckworth, the nonhearsay evidence showed the defendant made only a single appearance to drive the declarant to the site of the delivery. (180 Ill. App. 3d at 795.) In Darnell, the two alleged conspirators were present for the last delivery only; the agents had made five previous buys from the primary defendant.

The facts of this cause are more similar to those of Goodman and of People v. Sauer (1988), 177 Ill. App. 3d 870, 877, in which the defendant appeared during several deliveries of cocaine. Here, defendant was present each time Weiss bought drugs from Stark. Defendant drove Stark to the house when Weiss wanted to buy more cocaine. The existence of the agreement need not be proved by direct evidence, but may be inferred from all the surrounding facts and circumstances. (Sauer, 177 Ill. App. 3d at 877.) Defendant also tried to flee the arrest, which may be considered evidence of guilt, and his close association with Stark can be considered evidence of agreement and accountability. (People v. Coleman (1991), 223 Ill. App. 3d 975, 992.) These facts, in addition to the location of the purchase money, demonstrate that the State established the threshhold to activate the coconspirator exception to the hearsay rule. The State presented prima facie evidence that defendant and Stark were in agreement. Thus, the hearsay statements of Stark were admissible as the admissions of a coconspirator.

For the above reasons, the judgment of the circuit court is affirmed.

Affirmed.

McLAREN and GEIGER, JJ., concur.


author: JUSTICE COLWELL

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERTO POPOCA, Defendant-Appellant.
    Second District
    No. 2 — 91—1050
    Opinion filed June 9, 1993.
    Rehearing denied July 23, 1993.

      Theodore A. Gottfried, Charles M. Schiedel, and John J. Hanlon, all of State Appellate Defender’s Office, of Springfield, for appellant.
    Michael J. Waller, State’s Attorney, of Waukegan (William L. Browers, Robert J. Biderman, and Elliott Turpin, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE COLWELL

delivered the opinion of the court:

Defendant, Roberto Popoca, appeals the order of the circuit court denying his petition for post-conviction relief (111. Rev. Stat. 1991, ch. 38, par. 122 — 1 et seq.). Defendant argues that the circuit court erred in finding he was not denied the effective assistance of trial counsel who failed to interview occurrence witnesses and failed to present an expert to support defendant’s defense of intoxication. We reverse.

A jury found defendant guilty of the attempted murder (111. Rev. Stat. 1985, ch. 38, pars. 8 — 4(a), 9 — 1(a)(1)) of his wife Leslie and daughter Alicia, armed violence (111. Rev. Stat. 1985, ch. 38, par. 33A — 2), and the aggravated battery of a police officer (111. Rev. Stat. 1985, ch. 38, par. 12 — 4(bX6)). He was sentenced to 20 years’ imprisonment for the attempt on his daughter, 10 years’ imprisonment for the attempt on his wife, and 2 years’ imprisonment for the battery of the officer. The trial court vacated the conviction of armed violence. The only defense presented at trial was voluntary intoxication (111. Rev. Stat. 1985, ch. 38, par. 6 — 3).

The record shows that on June 11, 1985, defendant and his wife borrowed a car and ran errands. They did not eat all day, and they returned to their apartment at 3:30 p.m. While his wife prepared a meal, defendant went to another apartment to return the car keys. There, Fernando Hernandez asked if he wanted a drink. Defendant stayed until about 5 p.m. and drank three or four glasses of vodka and orange juice, although defendant usually drank only beer. Each glass was about six inches tall. However, Hernandez, who provided the drinks, did not think defendant was drunk when he left the apartment. Hernandez testified that defendant did not have difficulty walking or talking, although Hernandez had not seen defendant drink before that occasion.

Defendant walked up several flights of stairs to his own apartment, arriving at 5:10 or 5:15 p.m., and began to argue with his wife. She testified that he was more intoxicated than she had ever seen him and that they argued because he wanted their child baptized. She started to leave for Hernandez’s apartment, but he followed her. He fell down one flight of stairs, got up, and fell down another flight. He caught her and threatened to beat her. She calmed him, and they returned to their apartment. They argued some more, and he punched a screen. He said he would kill her. While she was holding their two-year-old daughter, he pulled his wife’s head back and thrust a knife at her head. She grabbed the knife in her hand, which was lacerated and later required stitches to mend.

Defendant’s wife pleaded to go to the hospital, and defendant agreed to take her. She protested that he was too drunk to drive and knocked on a neighbor’s apartment door. Defendant said he would kill their daughter and took her out of his wife’s arms. Defendant took her into the garbage room, and his wife and the neighbor followed. They had to retrieve the baby from the chute. There was a compacter eight floors below the chute door.

Two police officers came and arrested defendant. They had to beat him with nightsticks to subdue him as he was swinging his fists at them. He struggled and thrashed about on the floor even after they handcuffed him. The officers testified that they did not consider his abilities to fight, talk, or walk were impaired by alcohol.

The next morning, defendant awoke in the police station. An officer testified that defendant said he did not remember anything past the time he started arguing with his wife. Defendant remembered the details of the events prior to the argument, namely, the errands, the visit to Hernandez, the drinking, and the beginning of the argument.

Defendant’s wife testified that she knew defendant was drunk because his eyes were red and glassy, and his speech did not make sense. She had seen him drunk previously, but this was the worst she had seen. She had seen him get violent only once before when he was drunk. She did not notice the odor of alcohol, but she was not that close to him to smell it.

Defense counsel called the laboratory technician who prepared a blood-alcohol report the night defendant was taken to the hospital. He testified that defendant’s blood sample showed a count of 201.8 milligrams of alcohol per deciliter of blood. He could not testify on the effects this level would have on a person as he was not a qualified doctor. However, from a pathological standard, a rate of 100 milligrams per deciliter indicated the patient was intoxicated, 350 to 450 milligrams indicated severe intoxication, and 550 milligrams indicated a potentially fatal level of alcohol. Doctors use this standard to base their treatment of the patient. The levels may be used to gauge the extent medications may interact with the presence of alcohol in the blood.

Defendant testified that he ran errands on June 11, 1985, and that he and his wife did not stop to eat. When he returned the car keys, he was offered a drink. He drank three or four vodka drinks although he usually drank beer. Defendant could remember nothing after the time he left that apartment. He remembered waking in the jail feeling the lump on his head and feeling that he had a hangover. He barely remembered talking to the officers that morning.

The prosecutor argued that defendant was not so drunk that he could not form the intent to kill. The prosecutor argued that defendant’s claim that he could not remember the incident was not credible because he could remember the events leading up to the incident; and the prosecutor accused defendant of employing selective memory loss. The prosecutor argued that three or four drinks were not enough to render a man incapable of making decisions. He stated that the laboratory technician’s testimony showed that defendant was not very intoxicated at all.

Defense counsel argued that while defendant’s intoxication was not severe, it was in the range between intoxication and severe intoxication. Counsel asked the jury to consider that alcohol affects people differently and defendant had three or four eight-ounce glasses of a vodka drink. She argued that the evidence showed he was too drunk to have a specific intent to kill. She noted that while the officers would not say defendant was drunk, they did say he was on the floor screaming incoherently.

The jury was instructed, “An intoxicated person is criminally responsible for his conduct unless his intoxication renders him incapable of acting knowingly and voluntarily.” (See Illinois Pattern Jury Instructions, Criminal, No. 24 — 25.02 (2d ed. 1981); People v. Baczkowski (1989), 180 Ill. App. 3d 17, 20.) The jury found defendant guilty on all counts. The trial court sentenced defendant to 20 years’ imprisonment for the attempted murder of his daughter.

Defendant appealed his conviction, arguing that the sentence was excessive because the court had not adequately considered the evidence of intoxication. This court affirmed. People v. Popoca (1986), 146 Ill. App. 3d 1167 (unpublished order under Supreme Court Rule 23).

At the post-conviction proceeding, defendant presented the evidence which he claims his trial counsel should have introduced to support his defense of voluntary intoxication.

First, defendant presented Dr. Jerrod Giraukas, a licensed clinical psychologist. He conducted a psychological evaluation of defendant on April 16, 1991, to determine the general psychological functioning of defendant to ascertain his mental status at the time of the offense in 1985. Giraukas gave defendant a battery of tests and reviewed his family history, substance abuse evaluations, the original trial transcripts, medical reports and police reports. Defendant came from a family with a history of substance abuse. Defendant himself was classified as a severe alcohol dependent because he suffered from blackouts, used alcohol extensively, lost control, had polysubstance abuse, and drank in the morning, which was a primary symptom of alcoholism. Giraukas determined that defendant was alcohol dependent in 1985. While defendant had been incarcerated since then, that fact had no impact on the diagnosis that defendant was alcohol dependent in 1985. Moreover, his mental intelligence level had not changed. Giraukas also testified that defendant was suffering from and continued to suffer from a neurophysical depressive disorder. The combination of low intelligence and alcohol had a devastating effect on defendant’s ability to make appropriate judgments.

Giraukas translated the hospital report to state that defendant’s blood-alcohol count (BAG) was 0.20 the day of the offense. Giraukas testified that this percentage is twice the legal definition of intoxication but four times the level of clinical intoxication. Giraukas opined that given that level of blood alcohol defendant was not able to form the intent necessary to commit the offense of murder.

Giraukas also testified that a blackout is a primary symptom of alcohol dependence. A layman who saw a subject suffering from blackout would not notice anything unusual about the subject. The subject might not remember the events, however. Even if defendant did not report, a blackout, Giraukas’ opinion would not change because defendant had a constellation of symptoms. A blackout had nothing to do with the ability to formulate intent but rather was a memory problem symptomatic of alcoholics. After cross-examination, Giraukas persisted in his opinion that defendant was not able to form the intent to commit a murder.

Jeanette Morierty testified that she was a substance abuse counselor for the Northern Illinois Counsel on Alcoholism and Substance Abuse in Waukegan. In 1991, she examined defendant to determine his alcohol dependence in 1985. She found he was an alcohol dependent and a polydrug user.

Morierty explained the significance of a 0.20 blood-alcohol count. It indicated an elevated level twice the legal limit. Such a level would affect a man’s judgment, emotions, perception and motor coordination. Given defendant’s weight, the level indicated a consumption of 15 to 16 ounces of alcohol within three hours prior to the test. The body metabolizes alcohol at the rate of only one ounce per hour. Although defendant was incarcerated for six years, that fact had no effect on the opinion that he was alcohol dependent in 1985. His high tolerance for alcohol would be the same in 1985 or 1991.

The State called defendant’s original trial attorney as a witness. She was sure she had discussed the defense with defendant prior to the trial. She had presented the intoxication defense 5 to 10 times in the last 15 years but never used an expert witness to explain the defense. She stated that she thought the use of an expert would help in a case where there were no outward manifestations of intoxication. She recalled that at defendant’s trial she presented the result of his blood test and it was 0.20. She could not recall if she presented the standards of legal intoxication, but she remembered that defendant’s level was not severe.

Trial counsel considered the decision whether to call an expert to be trial strategy. She did not think defendant’s cause would have benefitted from an explanation of the nature of an alcoholic blackout because his ability to recall was not relevant to his ability to form an intent at the time of the incident. She acknowledged that the purpose of the laboratory technician’s gauge was intended only for health treatment reasons, not for impairment, and that there was a big difference between a hospital’s use of BAG to determine treatment and a jury’s use of BAG for determining impairment. Trial counsel had not presented any evidence on the impairment caused by a 0.20 BAG. She testified that the degree of impairment would differ from person to person.

Trial counsel had not investigated getting an expert witness. She thought that the defendant’s actions illustrated his mental state better than an expert could speculate about it. She stated that defendant was not in a position to be tested soon enough after the incident. She did not think that an inquiry into defendant’s alcoholic history and susceptibility would have added any benefit to his defense. Trial counsel thought that a psychological evaluation was not necessary because there was sufficient factual evidence to show he could not form an intent to kill. She thought the factual evidence alone showed that the mental state was negated. While an expert would not have hurt defendant’s cause, he would not have significantly helped it either.

Trial counsel could not recall if she interviewed the paramedics who took defendant to the hospital after the arrest. She had a copy of a paramedic’s report in her file. The report stated that the “patient smelled of alcohol and was very” but the report was cut off. She did not call the paramedic as a witness. She was sure that she did not talk to the doctors or the nurses at the hospital. The emergency room intake sheet stated that defendant was semiconscious and that he was lethargic with ethyl alcohol on his breath.

The circuit court reviewed the original trial court transcripts and denied the claim of ineffective assistance of counsel, stating the evidence at trial presented facts to support a claim of voluntary intoxication. Trial counsel was left in a quandary whether to call an expert because the level of intoxication was between 100 and 350 milligrams. If the defendant called an expert, the State would have called one in rebuttal. The circuit court found that defendant had not met his burden in proving the ineffectiveness of counsel and that not calling an expert was a matter of trial strategy. Defendant appeals.

To prevail on a claim of the ineffectivé assistance of counsel, the defendant must show (1) that his counsel’s performance was so deficient as to fall below an objective standard of reasonableness under prevailing professional norms; and (2) that the deficient performance so prejudiced the defense as to deny the defendant a fair trial. To establish the deficiency of counsel’s performance, the defendant must overcome the strong presumption that his counsel’s performance fell within the range of reasonable professional assistance. Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable. (Strickland v. Washington (1984), 466 U.S. 668, 687-89, 80 L. Ed. 2d 674, 693-95, 104 S. Ct. 2052, 2064-66; People v. Franklin (1990), 135 Ill. 2d 78, 116-17.) To demonstrate prejudice, the defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Strickland, 466 U.S. at 694, 80 L. Ed. at 698, 104 S. Ct. at 2068; People v. House (1990), 141 Ill. 2d 323, 388.

The failure to present particular evidence does not by itself prove that a defense counsel was ineffective, because the evidence may be flawed or damaging to the defendant so that competent counsel must make a strategic choice not to present it (People v. Perez (1992), 148 Ill. 2d 168, 186-87; see People v. O’Banner (1991), 215 Ill. App. 3d 778, 790). For example, where the evidence of intoxication is not strong enough to support the defense, and counsel wanted to “play down” the influence of alcohol, counsel made a tactical decision. (People v. Winchel (1987), 159 Ill. App. 3d 892, 916.) However, where the failure is the result of a lack of diligence in investigating the facts and law, rather than a drawback or strategy, counsel may be ineffective. (Perez, 148 Ill. 2d at 186-87; O’Banner, 215 Ill. App. 3d at 790.) The failure to investigate a defendant’s mental history may be grounds for a claim of the ineffective assistance of counsel. Perez, 148 Ill. 2d at 190-91; see Martin v. Maggio (5th Cir. 1983), 711 F.2d 1273, 1280-81 (discussing alleged failure to investigate intoxication defense).

We must apply the Strickland standards to the facts of defendant’s cause. When a defendant raises the defense of voluntary intoxication, the State must show beyond a reasonable doubt that the existence of the mental state for the offense was not negated by the defendant’s intoxication. (People v. Leger (1992), 149 Ill. 2d 355, 387.) The defense does not require a showing that the defendant was devoid of any mental activity. (People v. Baczkowski (1989), 180 Ill. App. 3d 17, 24-25.) Here, the State tried to disprove defendant’s intoxication was so extreme as to negate the specific intent to kill. The prosecutor relied on the testimony of Hernandez and the officers that defendant had control of his motor skills. The prosecutor argued defendant’s wife was biased in his favor by testifying he was drunk and that defendant was not credible because his alleged blackout was really selective memory loss.

However, motor skills are not directly related to the thought process. A psychologist could testify that an alcoholic may appear normal while his thinking could be totally awry and may commit irrational acts without full control of his reason; an intoxicated alcoholic would not necessarily stagger or slur his speech. (See People v. LePretre (1990), 196 Ill. App. 3d 111, 118-19; People v. Mocaby (1990), 194 Ill. App. 3d 441, 447.) Ah expert would have made defendant’s testimony that he could not remember the incident less unreasonable and less incredible or could have shown that defendant’s failure to remember the details of the offense was symptomatic of extreme intoxication. (Cf. People v. Jackson (1991), 145 Ill. 2d 43, 88 (that a defendant remembers details before, during, and after the offense usually negates a voluntary intoxication defense); People v. Roesler (1990), 195 Ill. App. 3d 1007, 1013; People v. Nichols (1981), 96 Ill. App. 3d 354, 359 (where the evidence indicates that the defendant acted with rationality or remembered the offense with clarity and detail, intoxication is no defense).) Moreover, defense counsel did not investigate calling the paramedic or hospital personnel to testify regarding the extent of defendant’s condition or to rebut the opinion of the officers.

While defendant’s trial counsel did introduce the laboratory technician, his testimony caused more harm than benefit to defendant’s cause. Counsel never translated the 201.8 milligrams of alcohol per deciliter of blood to the familiar 0.20 BAG or tied the reading to the statutory presumptions (see 111. Rev. Stat. 1985, ch. 951/2, par. 11— 501.2(bX3); see Paganelis v. Industrial Comm’n (1989), 132 Ill. 2d 468, 479 (while statutory presumptions may not apply outside of Vehicle Code cases, doctors may rely on BAG evidence)). Counsel did not give the jury any relevant standard to gauge the BAG. The 100/350/ 550-milligram gauge is relevant only to pathological treatment, not the impairment of mental abilities. The trial testimony implied that the pathological level was not severe, but a psychological expert could have testified that the level of mental impairment was extreme. Counsel presented no evidence regarding the rate of absorption and elimination of alcohol in the relevant two-hour-long period or that defendant, with a stomach full of drinks, could continue to get more intoxicated even after he stopped consuming more drinks. Counsel did not present evidence that defendant drank not just four drinks of the usual strength but of four times the strength, representing 16 ounces of alcohol. This testimony, established by an expert based on a 0.20 BAG, was more accurate and credible than defendant’s and Hernandez’s estimations of four six-inch-tall drinks. Defense counsel did note, however, that defendant’s thrashing at the police officers was not the action of a rational man.

The State cites several cases in which the courts ruled that the defendants were not denied the effective assistance of counsel for failure to support an intoxication defense. People v. Treadway (1985), 138 Ill. App. 3d 899, 903-04, is distinguishable because that opinion concerned the direct appeal of the conviction, and no external evidence was in the record showing what evidence could have been introduced. There, appellate counsel argued only that trial counsel was ineffective for failing to investigate hypothetical and unnamed occurrence witnesses who might have corroborated defendant’s claim that he appeared intoxicated. These arguments were not supported by facts in the record and such witnesses would have undermined the defendant’s claim that he had control of his motor functions but not his mental abilities. Similarly, in People v. Weir (1986), Ill 111. 2d 334, 339, the defendant failed to offer the evidence which his trial counsel should have presented to support the claim of ineffective assistance of counsel. In People v. Quinn (1988), 173 Ill. App. 3d 597, 606-07, the court noted that the claim of counsel’s failure to investigate a diminished capacity defense is more amenable to a post-conviction proceeding where additional facts may be presented.

In People v. Moore (1990), 208 Ill. App. 3d 515, 522-23, the defendant was examined by a doctor, but trial counsel chose not to call him at trial. Counsel may have been dissatisfied with the doctor’s testimony at an earlier suppression hearing where the doctor conceded the defendant could have been malingering. In People v. Hillenbrand (1986), 146 Ill. App. 3d 1075, 1080, counsel was not ineffective in presenting an intoxication defense where there was no laboratory report to corroborate the allegation of intoxication. (See also People v. Kyse (1991), 220 Ill. App. 3d 971, 973; Winchel, 159 Ill. App. 3d at 916 (lack of evidence to show sufficient intoxication).) Here, defendant argues trial counsel failed to investigate at all into obtaining third-party or technical support for defendant’s claim.

The evidence which trial counsel failed to present would have substantially improved defendant’s claim given the strong evidence of defendant’s intoxication already in the record. While a jury need not accept the conclusions of a psychiatrist with respect to a defendant’s intoxication (Leger, 149 Ill. 2d at 388; Nichols, 96 Ill. App. 3d at 359; People v. Olson (1981), 96 Ill. App. 3d 193, 197), especially where the experts rely upon information supplied in part by a defendant, there is a substantial likelihood the proffered evidence would have made a difference. Trial counsel could have presented testimony that defendant consumed 16 ounces of alcohol in less than two hours on an empty stomach instead of the vague testimony of four drinks. Trial counsel could have used the twice-the-legal-limit standard rather than the half-the-severe-level pathological standard. These scientific facts would have a profoundly greater impact on a trier of fact than the evidence actually presented at trial. (See Ake v. Oklahoma (1985), 470 U.S. 68, 79-80, 84 L. Ed. 2d 53, 64, 105 S. Ct. 1087, 1094; People v. Finkle (1991), 214 Ill. App. 3d 290, 294 (appointment of a psychiatrist can be essential to a defense).) Also, an explanation of the nature of a blackout would have increased defendant’s credibility.

The State notes counsel’s statement that she thought expert testimony was not relevant because the interview did not occur immediately following the offense. However, both Giraukas and Morierty testified that their diagnoses could relate back in time. Where mental states are concerned, an expert must usually extrapolate back in time to determine a patient’s mental state on the date of the occurrence. See People v. Curry (1992), 225 Ill. App. 3d 450, 454-55 (psychological opinion is relevant even though psychologist did not observe defendant when he committed the crime).

The State also argues that defendant failed to produce evidence at the post-conviction hearing which could have been introduced at his original trial. The State notes that both Giraukas and Morierty were licensed in their professions subsequent to 1985. However, the State cites no authority for this proposition and did not object to their testimony before the trial court; the argument is thus waived. Moreover, scientific evidence is admitted under the premise that the opinion rests on generally accepted scientific principles (see People v. Thomas (1990), 137 Ill. 2d 500, 517), and the opinions of the experts here were based on well-accepted standards promulgated by the Secretary of State. Also, similar testimony was available prior to 1985. See People v. Olson (1981), 96 Ill. App. 3d 193, 196-97.

The State argues that the evidence of defendant’s intoxication was not strong. However, defendant testified that he drank three or four vodka drinks, which was not his usual beverage. Hernandez testified he gave defendant several tall drinks of vodka, an odorless form of alcohol. Defendant’s wife, who spent the most time with him that evening, said he was more intoxicated than she had ever seen him. The officers described him as thrashing on the floor and screaming incoherently. His actions in trying to kill a child he wanted baptized and thrashing at the officers are not the hallmarks of a rational man.

While defendant has established a prima facie case for the ineffective assistance of counsel inasmuch as the evidence showing defendant’s mental impairment could have been far stronger, we must inquire further into whether trial counsel’s failure to call the experts was a matter of trial strategy. (Winchel, 159 Ill. App. 3d at 916.) The circuit court mentioned that if defense counsel had called an expert the State would have called one as well. Thus, while defendant’s case would have been stronger because a psychologist could have testified that he lacked the ability to form an intent to kill, the State’s expert might have testified that defendant still could have formed the intent. Thus, the jury would have had more evidence to support its conclusion that defendant was responsible for his actions. Trial counsel had to weigh whether the bolstering of defendant’s case would have been more than offset by the damaging testimony of the State’s opposing expert witness.

However, just as a reviewing court should not second-guess the strategic decisions of counsel with the benefit of hindsight, it should also not construct strategic defenses which counsel does not offer. (Harris v. Reed (7th Cir. 1990), 894 F.2d 871, 878.) Trial counsel did not mention the fear of a State’s expert witness as her reason for not calling her own, and the State did not offer any opposing witness at the post-conviction hearing. Trial counsel testified that she did not think an expert would hurt the cause but rather would not significantly help it. Thus, the trial court’s rationale for denying the post-conviction petition was not supported by the record.

For the above reasons, the order of the circuit court is reversed, and the cause is remanded for further proceedings.

Reversed and remanded.

UNVERZAGT and WOODWARD, JJ., concur.


author: JUSTICE MAAG

text:
    ROBERT L. CAUDLE et al., on Behalf of Themselves and All Others Similarly Situated, Plaintiffs-Appellees, v. SEARS, ROEBUCK AND COMPANY, Defendant-Appellant.
    Fifth District
    No. 5 — 93—0071
    Opinion filed June 4, 1993.
    Rehearing denied July 2, 1993.

      Arnstein & Lehr, of Chicago (Michael A. Stiegel, Arthur L. Klein, and Hal R. Morris, of counsel), and Campbell, Black, Carnine & Hedin, of Mt. Vernon (Terry R. Black and Jerome E. McDonald, of counsel), for appellant.
    Law Offices of Morris Lane Harvey, of Fairfield (Morris Lane Harvey and Michael J. Molt, of counsel), and Christopher & Taylor (Rodney V. Taylor, of counsel), and Lowe, Gray, Steele & Hoffman (Sydney Steele, of counsel), both of Indianapolis, Indiana, for appellees.
   JUSTICE MAAG

delivered the opinion of the court:

This is an interlocutory appeal pursuant to Supreme Court Rule 307(a)(1) (134 Ill. 2d R. 307(a)(1)) from an order of the circuit court of Wayne County which denied Sears’ motion to compel arbitration and to stay all judicial proceedings pending arbitration. For the reasons set forth below, the circuit court should be reversed.

The relevant facts are as follows: Defendant-appellant, Sears, Roebuck & Co. (hereinafter Sears), decided not to renew separate operating contracts with operators of Sears catalog centers who are from several different States. On September 28, 1992, a class action complaint was filed on behalf of 2,600 owners of catalog centers as of August 1, 1992, and those who had invested in such centers as of August 1, 1992. The complaint that plaintiffs-appellees, Robert L. Caudle et al., filed charged Sears with breach of express and implied contracts with respect to its corporate decision to withdraw from the catalog-sales market by not renewing operating contracts with the plaintiffs. The complaint sought consequential and incidental damages. Sears subsequently filed a motion to stay the action in circuit court and to compel arbitration pursuant to a provision in the “Catalog Sales Merchant Agreement” (hereinafter Merchant Agreement) with plaintiffs which called for mandatory arbitration of all disputes between the parties.

Sears contends that all of the claims which were raised in the class action complaint should be submitted to arbitration because the Merchant Agreement contains an arbitration clause. Plaintiffs claim, however, that their action is grounded upon a separate agreement, an oral investment contract. Thus, plaintiffs argue that the investment contract is not subject to the arbitration clause in the Merchant Agreement because the investment contract is a separate oral promise by Sears not to cause catalog-center owners and investors to lose their investments without adequate compensation. The trial court denied Sears’ motion to stay proceedings pending arbitration on February 1, 1993. On February 3, 1993, Sears filed a notice of interlocutory appeal from that ruling. This court granted Sears’ request to expedite the appeal on February 11, 1993. On March 2, 1993, this court granted Sears’ motion to stay further trial proceedings pending appeal. Plaintiffs then filed a motion to dismiss Sears’ interlocutory appeal, and on March 15, 1993, this court denied plaintiffs’ motion. Thereafter, on April 1, 1993, Sears filed a motion for approval of settlement and dismissal of claims or, alternatively, partial vacation of stay of trial court proceedings due to the fact that all of the named plaintiffs except one, Robert Caudle, had settled their claims with Sears. This court’s stay of the trial court’s proceedings, entered March 2, 1993, is partially vacated for the purpose of permitting the trial court to approve, pursuant to section 2 — 806 of the Civil Practice Law (735 ILCS 5/2 — 806 (West 1992)), the close-down payment agreements of Debrah K. Myaard, Joseph Tanecka, Sheryl Paul, and Alan Waltenberger and to dismiss their claims with prejudice.

Initially, we note that the plaintiffs are again contesting the jurisdiction of this court for precisely the same reasons as they did in their motion to dismiss Sears’ interlocutory appeal. We have already determined that plaintiffs’ argument is without merit, and we will continue to adhere to our previous position. In the memorandum in support of plaintiffs’ motion to dismiss Sears’ interlocutory appeal, plaintiffs claimed that the denial of the motion to stay is really akin to the denial of a motion to dismiss their complaint and, hence, is not appealable by right under Supreme Court Rule 307(a)(1). Plaintiffs assert that Sears is, in effect, seeking a dismissal of plaintiffs’ action. Under this procedural posture, the order denying relief would not be appealable. (See In re Marriage of Wass (1981), 94 Ill. App. 3d 436, 419 N.E.2d 32.) According to plaintiffs, relief on Sears’ motion to stay and compel arbitration would have been tantamount to a dismissal of the action. As a consequence, they regard the denial of the motion as synonymous with the denial of a motion to dismiss. The interpretation plaintiffs assign to the Sears’ motion, however, is predicated on the assumption that there is no claim in their complaint that is subject to arbitration under the Merchant Agreement. This begs the question which is before this court on appeal. In Notaro v. Nor-Evan Corp. (1983), 98 Ill. 2d 268, 456 N.E.2d 93, the Illinois Supreme Court determined that orders denying motions to stay trial court proceedings and to compel arbitration are appealable by right under Supreme Court Rule 307(a)(1). Therefore, we believe that under Notaro, this court has jurisdiction where both the form and substance of the interlocutory order suggest that it is appealable under Supreme Court Rule 307(a)(1).

Controverted facts or the merits of the case are not decided where, as here, an interlocutory appeal is brought pursuant to Supreme Court Rule 307(a)(1) (134 Ill. 2d R. 307(a)(1)). (See Yates v. Doctor's Associates, Inc. (1990), 193 Ill. App. 3d 431, 437, 549 N.E.2d 1010, 1014.) In fact, the only issue in such an appeal is “whether there was a sufficient showing to sustain the order of the trial court granting or denying the relief sought.” (Yates, 193 Ill. App. 3d at 437, 549 N.E.2d at 1014.) To determine whether the circuit court acted properly in denying Sears’ motions, we must address what law governs the agreement between the parties. See Yates, 193 Ill. App. 3d at 437, 549 N.E.2d at 1014.

Sears has suggested in its brief that the Merchant Agreement should be governed by the Uniform Arbitration Act (Ill. Rev. Stat. 1991, ch. 10, pars. 101 through 123); therefore, Sears claims that the question of arbitrability should have been submitted to an arbitrator instead of the court deciding the issue itself. Plaintiffs respond that the Federal Arbitration Act (9 U.S.C.A. §§1 through 16 (West 1970 & Supp. 1993)) applies to this case because the written agreements are contracts evidencing a transaction in interstate commerce which contain arbitration provisions. Since the Federal Arbitration Act creates Federal substantive law with regard to any arbitration agreement within the Act’s coverage, plaintiffs believe that State law has been preempted; therefore, all questions must be determined according to Federal law. (See Yates, 193 Ill. App. 3d at 437-38, 549 N.E.2d at 1014.) This point is significant because if the Federal Arbitration Act applies, the court itself is to decide whether an issue is arbitrable. (See AT&T Technologies, Inc. v. Communications Workers of America (1986), 475 U.S. 643, 651, 89 L. Ed. 2d 648, 657, 106 S. Ct. 1415, 1420; Virginia Carolina Tools, Inc. v. International Tool Supply, Inc. (4th Cir. 1993), 984 F.2d 113, 117, cert, denied (1993),_U.S---124 L. Ed. 2d 681, 113 S. Ct. 2930.) If the Uniform Arbitration Act applies, there are areas where arbitrability may appropriately be determined by the court and there are areas where the court, on the question of arbitrability, must defer to the arbitrator. (Donaldson, Lufkin & Jenrette Futures, Inc. v. Barr (1988), 124 Ill. 2d 435, 444, 530 N.E.2d 439, 443.) According to the Uniform Act, if the language of the arbitration agreement is clear and it is obvious that the dispute desired to be arbitrated falls within the scope of the arbitration clause, the court should decide the arbitration issue and compel arbitration. (Donaldson, 124 Ill. 2d at 445, 530 N.E.2d at 443.) Likewise, if it is obvious that the issue sought to be arbitrated is not within the arbitration clause, the court should decide the arbitrability issue in favor of the opposing party, because no agreement to arbitrate exists. (Donaldson, 124 Ill. 2d at 445, 530 N.E.2d at 443.) Moreover, when the parties broadly agree to arbitrate and it is still unclear whether the subject matter of the dispute falls within the scope of the arbitration agreement, the question of substantive arbitrability should initially be decided by the arbitrator. Donaldson, 124 Ill. 2d at 447-48, 530 N.E.2d at 445.

Sears based its “Motion to Compel Arbitration and Stay the Judicial Proceedings” upon the Federal Arbitration Act as well as the Uniform Arbitration Act. Sears admitted, however, in the motion to compel arbitration that “[ejach contract involves commerce as defined by [the Federal Arbitration Act].”

The relevant text of the Federal Arbitration Act is as follows: “A written provision in *** a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, or an agreement in writing to submit to arbitration an existing controversy arising out of such contract, transaction, or refusal, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” (Emphasis added.) (9 U.S.C.A. §2 (West 1970).)

If a contract “involves commerce,” the question of arbitrability is governed by Federal law. (See Bayma v. Smith Barney, Harris Upham & Co. (9th Cir. 1986), 784 F.2d 1023, 1025.) The trial court in the case at bar determined that this case is governed by the Federal Arbitration Act. We agree. The contract in the instant case “involves commerce.” Even Sears agreed in its motion to compel arbitration that the contract involves commerce; therefore, the Federal Arbitration Act controls this case. As previously stated, according to the Federal Arbitration Act, the issue of arbitrability is to be determined by the court rather than the arbitrator; hence, the trial court’s decision to determine the issue of arbitrability was appropriate.

This determination does not end our inquiry, however, because we must review the trial court’s decision and decide if there was a sufficient showing to support the trial court’s refusal to compel arbitration or stay the judicial proceedings. See Yates, 193 Ill. App. 3d at 440, 549 N.E.2d at 1016.

Sears claims that the plain language of the Merchant Agreements which the plaintiffs signed mandates arbitration. Plaintiffs respond that the subject matter of the Merchant Agreements does not encompass the subject matter of the alleged oral investment contract; therefore, the arbitration clause encompassed within the Merchant Agreements does not apply to plaintiffs’ claims. More specifically, plaintiffs claim in their complaint that the alleged oral investment contract included the following representations by Sears:

“5. Sears made an expressf ] or implied contract with each plaintiff and Class member, in consideration of their participation in Sears’ national catalog sales distribution system and/or their investment in a Sears catalog sales business enterprise, including an express[ ] or implied promise by Sears that it will not, without adequate compensation:
a) Do or fail to do anything that will harm, diminish or hinder their investment or their ability to get back or recoup their investment in their Sears catalog sales business enterprise, or
b) Confiscate, assume or otherwise appropriate their investment in their Sears catalog business enterprise.
6. The investment of the plaintiffs and each Class member in their Sears catalog sales business enterprise, made with the encouragement and support of Sears, included, without limitation, funds paid or obligations incurred to prior owners, for real and personal property, leasehold interests, personal time and devotion to the enterprise, forfeiture of assets and opportunities and/or other payments and commitments made to enhance their Sears catalog sales business enterprise.
7. In August, 1992, and thereafter, Sears, without adequate compensation, threatened and/or refused to renew upon substantially the same terms the separate operating contract between Sears and each plaintiff and Class member.
8. This conduct and refusal of Sears in August, 1992, and thereafter, to renew the separate operating contracts of plaintiffs and the Class upon substantially the same terms, without adequate compensation,
a) Harmed, diminished and hindered the investment and ability of each plaintiff and Class member to get back or recoup their investment in their Sears catalog sales business enterprise, and
b) Confiscated, assumed and appropriated their investment in their Sears catalog sales business enterprise.
9. Sears breached its express[] or implied contracts made with the plaintiffs and Class, causing them damage and losses.”

Additionally, plaintiffs claim in their amended complaint that the alleged oral investment contract includes the following representations by Sears:

“5. Sears orally represented by express[ ] words and a common plan and course of conduct, intended to and did induce investment in the Catalog Sales Distribution System.
6. Sears’ common plan and course of conduct to induce investment in the Catalog Sales Distribution System included, without limitation, direct solicitation and encouragement of investment, advertisements and newspapers, counseling or advising about appropriateness of investment amounts, facilitating the sale and purchase of an investment, and representations directly and indirectly that an Investor could sell his or her investment in Catalog Sales Distribution System.
7. Sears, by its express[ ] words or its common plan and course of conduct promised each Investor that he or she could sell his or her investment in the Catalog Sales Distribution System, and communicated its intention to that Investor that Sears would be bound by its promise.”

Because this agreement falls within the ambit of the Federal Arbitration Act, Federal law applies in construing and enforcing the arbitration clause, even in those cases in which jurisdiction is based on diversity. (Huber, Hunt & Nichols, Inc. v. Architectural Stone Co. (5th Cir. 1980), 625 F.2d 22.) In determining the scope of the arbitration agreement, the court must apply the “ ‘federal substantive law of arbitrability.’ ” (McPheeters v. McGinn, Smith & Co. (2d Cir. 1992), 953 F.2d 771, 772, quoting Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc. (1985), 473 U.S. 614, 626, 87 L. Ed. 2d 444, 455, 105 S. Ct. 3346, 3352.) The court must take into account, however, that questions of arbitrability must be addressed with a healthy regard for the, Federal policy favoring arbitration, and “any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration, whether the problem at hand is the construction of the contract language itself or an allegation of waiver, delay, or a like defense to arbitrability.” Moses H. Cone Memorial Hospital v. Mercury Construction Corp. (1983), 460 U.S. 1, 24-25, 74 L. Ed. 2d 765, 785, 103 S. Ct. 927, 941.

Therefore, it is necessary to review the arbitration clause which is found within the Merchant Agreement in order to determine whether the alleged oral investment contract should be submitted to arbitration. The relevant portion of the arbitration clause is as follows:

“Any controversy or claims arising out of or relating to this Agreement, or any breach thereof, including, without limitation, any claim that this Agreement or any portion thereof is invalid, illegal, or otherwise voidable, shall be submitted to arbitration before and in accordance with the rules of the American Arbitration Association and judgment upon the award may be entered in any court having jurisdiction thereof. Provided, however, that this clause shall not limit Sears[’] right to obtain any provisional remedy, including, without limitation, injunctive relief, writs for recovery of possession or similar relief, from any court of competent jurisdiction, as may be necessary in Sears[’] sole subjective judgment, to protect its trademark or other property rights.” (Emphasis added.)

The question of arbitrability is settled on the basis of the existence of an arbitration clause that, on its face, appears broad enough in scope to encompass the parties’ claims. (Commerce Park at D F W Freeport v. Mardian Construction Co. (5th Cir. 1984), 729 F.2d 334, 338-39.) We believe that the language of the arbitration agreement in the instant case is about as broad as one can conceive. Therefore, we believe that it is clear that the language in the arbitration clause, on its face, is broad enough to cover the claims in the case at bar. Even if the arbitration clause had been fairly debatable or reasonably in doubt, the court should have decided the question of construction in favor of arbitration. See United Steelworkers of America v. Warrior & Gulf Navigation Co. (1960), 363 U.S. 574, 583, 4 L. Ed. 2d 1409, 1418, 80 S. Ct. 1347,1353.

We note, however, that the intention of the parties must be determined from the entire agreement because one cannot be required to submit a dispute to arbitration if he has not agreed to do so. (Georgia Power Co. v. Cimarron Coal Corp. (6th Cir. 1975), 526 F.2d 101, 106.) Therefore, we will review the Merchant Agreement in order to determine whether the current dispute regarding the alleged oral investment contract is so intertwined with the Merchant Agreement that it must be submitted to arbitration.

In section 5 of the Merchant Agreement, the term of the contract is specifically limited to two years and contains a provision for nonrenewal. That section states:

“Either party may refuse to extend or renew this or any similar subsequent agreement without cause or obligation. Successive renewals or statements or actions indicating expectations of a continuing relationship shall not be construed as a waiver of this right to not renew nor to prevent either party from exercising such right and neither party shall have any expectations of a continuing indefinite term of this Agreement or the relationship established by this Agreement. Any reason giv[en] for the desire to not renew shall not affect the validity of the notice of non-renewal.”

Furthermore, section 15 contains an integration clause which states as follows:

“This Agreement constitutes the entire and complete agreement between the parties concerning the subject matter of this Agreement and supersedes all prior agreements. There are no representations, inducements, promises, or agreements, oral or otherwise, among the parties not embodied in this agreement which are of any force or effect with reference to this Agreement or otherwise. No amendment, change, or variance from this Agreement shall be binding on any party unless executed in writing ***. No field representative of Sears has the right or authority to make any oral or written amendment or modification to the Agreement, and any purported amendment or modification made by such field representative shall not be binding upon the parties hereto. Merchant acknowledges that no representation other than contained herein has induced Merchant to execute this agreement.” (Emphasis added.)

Therefore, even though plaintiffs claim that the alleged oral investment contract contains a different subject matter than the Merchant Agreement, it is clear that the Merchant Agreement contains the very information that plaintiffs claim that it does not. For example, in the amended complaint for damages, the plaintiffs claim that they incurred damages under the alleged oral investment contract because Sears “destroyed the Catalog Sales Distribution System, the underlying basis for the Investors’ investment^] by terminating said system as it had theretofore existed, thereby, denying to the Investors the ability to sell their investment.” In fact, this allegation summarizes the plaintiffs’ underlying theme regarding the substance of the alleged oral investment contract. Plaintiffs fail to acknowledge, however, that each Merchant Agreement specifically states that the merchant’s relationship with Sears is based upon a mere two-year term which Sears has continued to renew until the present time even though Sears apparently had no obligation to do so. The Merchant Agreement also contains a nonrenewal provision. Plaintiffs appear to be claiming, however, that such a provision does not exist. Additionally, the integration clause specifically states that there are no oral promises other than those contained within the Merchant Agreement and that the merchant acknowledges that no representations other than those contained within the Merchant Agreement has induced the merchant to enter into the Merchant Agreement. Therefore, we believe that a review of the entire agreement between the parties indicates that the parties intended to submit this type of dispute to arbitration because it is clear that the aforementioned provisions in the Merchant Agreement specifically cover the very issues of which plaintiffs are complaining.

Hence, we believe that the alleged oral investment contract is so closely related to and inextricably intertwined with the Merchant Agreement that this dispute must be submitted to arbitration. Therefore, we believe that the trial court erred in refusing Sears’ motion to compel arbitration. Since arbitration of this dispute was required in accordance with the Merchant Agreement, it necessarily follows that the trial court erred in refusing to stay the pending action.

For the foregoing reasons, we reverse the order of the circuit court of Wayne County denying Sears’ motion to compel arbitration and stay the judicial proceedings.

Reversed and remanded.

CHAPMAN, P.J., and WELCH, J., concur.


author: PRESIDING JUSTICE CHAPMAN

text:
    TARA CORIASCO, a Minor, by Susan Coriasco, Her Mother and Next Friend, et al., Plaintiff-Appellant, v. BRANDI HUTCHCRAFT et al., Defendants (Country Mutual Insurance Company, Defendant-Appellee).
    Fifth District
    No. 5-92-0219
    Opinion filed June 11, 1993.

      Robert H. Howerton, of Harris, Lambert, Howerton, Dorris & Eckiss, of Marion, for appellant.
    Robert W. Lewis, of Benton, for appellee.
   PRESIDING JUSTICE CHAPMAN

delivered the opinion of the court:

Tara Coriasco was injured in an automobile accident while a passenger in a vehicle operated by Brandi Hutchcraft. Tara filed a declaratory judgment action against Country Mutual Insurance Company (Country Mutual). This appeal concerns only the claim against Country Mutual Insurance Company; the claims against the remaining defendants will not be discussed.

Both plaintiff and Country Mutual filed motions for summary judgment. Plaintiff sought a declaration that the Country Mutual policy of insurance issued to her father, Michael Coriasco, and her stepmother, Teresa Coriasco, provided underinsured motorist coverage to her. The policy provides coverage for a “relative” of the named insureds, Michael and Teresa Coriasco. The policy defines a “relative” as “a person related to you by blood, marriage, or adoption who is a resident of the same household as you, including a ward or foster child.” The trial court found that Tara Coriasco was not a resident of her father’s household. Based on this finding, the court granted Country Mutual’s motion for summary judgment and denied plaintiff’s motion for summary judgment. We reverse.

Two issues are raised: (1) whether the phrase “resident of the household” as used in the insurance policy is ambiguous; and (2) whether Tara Coriasco was a resident of her father’s household for purposes of coverage.

Cases have stated that the phrase “resident of the household” has no precise meaning in law and must be construed liberally in favor of the insured. (Cincinnati Insurance Co. v. Argubright (1986), 151 Ill. App. 3d 324, 502 N.E.2d 868; Hawkeye Security Insurance Co. v. Sanchez (1984), 122 Ill. App. 3d 183, 460 N.E.2d 873; Country Mutual Insurance Co. v. Mooney (1978), 59 Ill. App. 3d 946, 376 N.E.2d 439; MFA Mutual Insurance Co. v. Harden (1975), 26 Ill. App. 3d 360, 325 N.E.2d 102; Country Mutual Insurance Co. v. Watson (1971), 1 Ill. App. 3d 667, 274 N.E.2d 136.) The word “resident” is not without any meaning, however. “Resident” is generally understood to include intent and permanency of abode in addition to mere physical presence. (Cincinnati Insurance, 151 Ill. App. 3d 324, 502 N.E.2d 868; Hawkeye Security Insurance, 122 Ill. App. 3d 183, 460 N.E.2d 873; Country Mutual Insurance Co. v. Watson, 59 Ill. App. 3d 946, 376 N.E.2d 439.) A person can have only one domicile, or permanent abode, at a time; however, she may have several residences. (Bastian v. Personnel Board (1982), 108 Ill. App. 3d 672, 675, 439 N.E.2d 142, 144-45, vacated on other grounds sub nom. Fagiano v. Police Board (1983), 98 Ill. 2d 277, 456 N.E.2d 27.) Country Mutual argues that simply because a court must examine the facts in each case to determine whether a plaintiff is a resident of the household does not mean that the term is ambiguous. We agree.

If the terms of an insurance policy are clear and unambiguous, the language used will be given its plain meaning. (Murphy v. State Farm Mutual Automobile Insurance Co. (1992), 234 Ill. App. 3d 222, 225, 599 N.E.2d 446, 448.) However, in interpreting insurance policies, as with other contracts, policy provisions are deemed ambiguous if they are subject to more than one reasonable interpretation. (United States Fidelity & Guaranty Co. v. Wilkin Insulation Co. (1991), 144 Ill. 2d 64, 578 N.E.2d 926; Economy Fire & Casualty Co. v. Kubik (1986), 142 Ill. App. 3d 906, 492 N.E.2d 504.) There is no fixed or exact meaning to the phrase “resident of the household”; however, the phrase is not ambiguous. The reasonable interpretation of the phrase merely requires an analysis of intent, physical presence, and permanency of abode in each case. See Cincinnati Insurance Co. v. Argubright (1986), 151 Ill. App. 3d 324, 502 N.E.2d 868.

We now turn to the question of whether Tara Coriasco was a resident of her father’s household for purposes of coverage.

Country Mutual argues that it is clear that Tara considers the days she spends at her father’s home to be “visits” and nothing more. Country Mutual contends that, while Tara is a relative of Michael Coriasco and visits regularly in his home, his home is not her permanent place of abode, and it is not her intention to stay there permanently when she visits him. Country Mutual argues that based on the facts Tara Coriasco is not a “resident of the household.”

An examination of the record on the questions of physical presence, intent, and permanency of abode reveals the following. Tara Coriasco is the child of divorced parents. Under the terms of the judgment dissolving their marriage, Tara’s custody was awarded to her mother. Since the divorce in 1984, Tara has resided with her mother except for visitation with her father, which occurs principally on weekends and occasionally during the week. Tara keeps clothing and personal items such as a hair brush and toothbrush at her father’s home for her use during her overnight stays. She also occasionally receives mail at her father’s home.

There is no question that Tara is physically present in her father’s home during her regularly scheduled visits with him. Tara’s more-than-momentary physical presence in her father’s home is manifested by the clothing and personal effects which she keeps there and which she uses during her regularly scheduled visits with her father. When Tara is living with her father on weekends and occasionally during the week, she is subject to his care and custody. Obviously Tara intends to reside with her father during her visits with him. While Tara refers to her time with her father as “visits,” a visit to a location does not prevent that location from being a residence. President Bush resided at the White House and visited Kennebunkport, Maine, and Houston, Texas, but Kennebunkport and Houston could also be his residences.

The permanency-of-abode criterion is not particularly significant in the case of a minor child. It is unlikely that Tara will permanently reside with either her mother or her father. We note that her father’s home has an element of permanency (at least during her minority) in that Tara returns there each week to take up court-ordered residence.

In conclusion, the trial court erred in determining as a matter of law that Tara was not a “resident of her father’s household” within the meaning of the insurance policy. Based on the foregoing, we reverse the decision of the trial court granting summary judgment in favor of Country Mutual. In addition, we reverse the decision of the trial court denying Tara Coriasco’s motion for summary judgment. We hold that a minor child of divorced parents, under the facts as presented, who has regular visitation with a noncustodial parent is a resi: dent of both households for purposes of the underinsured motorist provision at bar. Pursuant to our authority to enter any judgment that ought to have been made in the trial court (134 Ill. 2d R. 366(aX5)), we hereby grant summary judgment in favor of the plaintiff. This cause is remanded for further proceedings consistent with this opinion.

Reversed; judgment entered; and remanded.

MAAG and WELCH, JJ., concur.


author: JUSTICE WELCH PRESIDING JUSTICE CHAPMAN,

text:
    CARBONDALE LIQUOR CONTROL COMMISSION, Plaintiff-Appellant, v. ILLINOIS LIQUOR CONTROL COMMISSION et al., Defendants-Appellees. — CARBONDALE LIQUOR CONTROL COMMISSION, Plaintiff-Appellant, v. ILLINOIS LIQUOR CONTROL COMMISSION et al., Defendants-Appellees.
    Fifth District
    Nos. 5 — 92—0617, 5 — 92—0618 cons.
    Opinion filed June 11, 1993.
    Rehearing denied July 2, 1993.
    CHAPMAN, P.J., dissenting.
    Michael L. Wepsiec, City Attorney, of Carbondale, for appellant.
    Robert P. Schulhof, of Carbondale, for appellee Beer Barn, Inc.
    No brief filed for appellee State of Illinois Liquor Control Commission.
   JUSTICE WELCH

delivered the opinion of the court:

Beer Barn, Inc. (Beer Bam), and Saluki Liquor, Inc. (Saluki Liquor), applied for retail package-liquor licenses in the City of Carbon-dale in 1990. The Carbondale Liquor Control Commission (Carbondale Commission) denied the licenses, and Beer Barn and Saluki Liquor appealed to the State of Illinois Liquor Control Commission, which reversed the Carbondale Commission’s decision and ordered the Carbon-dale Commission to issue retail package-liquor licenses to Beer Barn and Saluki Liquor. The Carbondale Commission filed a complaint for administrative review in the circuit court. The trial court dismissed the complaint for lack of standing, and this court affirmed. (Carbondale Liquor Control Comm’n v. Illinois Liquor Control Comm’n (1992), 227 Ill. App. 3d 71, 590 N.E.2d 1044.) Upon remand from this court, Beer Barn and Saluki Liquor again requested the Carbondale Commission to issue licenses, and the Carbondale Commission refused to do so. Beer Bam and Saluki Liquor filed a motion to enforce judgment in the circuit court. The circuit court granted the motion to enforce judgment and ordered the Carbondale Commission to issue retail package-liquor licenses to Beer Bam and Saluki Liquor. The Carbondale Commission appeals. We affirm.

The Carbondale Commission points out that the appellees’ license applications specified that they were for the period beginning July 1, 1990, and ending June 30, 1991. The Carbondale Commission submits that the licenses for which Beer Barn and Saluki Liquor applied have expired, and as a result, the instant cases were moot when the trial court granted the motion to enforce judgment.

We will first address the mootness point. Plaintiff argues that People ex rel. Cairo Turf Club, Inc. v. Taylor (1954), 2 Ill. 2d 160, 116 N.E.2d 880, is dispositive and mandates dismissal.

In Cairo Turf Club the appellee received a local license to sell liquor for the year ending December 31, 1952. The appellee applied for a State retail liquor license, which, if issued, would have expired June 30, 1953. The State Liquor Control Commission refused to issue a State license. The appellee sought a writ of mandamus against the State Liquor Control Commission. The trial court denied the writ of mandamus, but the appellate court reversed. On appeal to the Illinois Supreme Court, two issues were presented, one of which was “whether or not the matter has now become moot by reason of the fact that the license period in question has expired.” (Cairo Turf Club, 2 Ill. 2d at 163, 116 N.E.2d at 881.) The supreme court stated the general rule that “ ‘when a reviewing court has notice of facts which show that only moot questions or mere abstract propositions are involved or where the substantial questions involved in the trial court no longer exist, it will dismiss the appeal or writ of error.’ ” (Cairo Turf Club, 2 Ill. 2d at 164, 116 N.E.2d at 882, quoting People v. Redlich (1949), 402 Ill. 270, 279, 83 N.E.2d 736, 741.) The appellants argued that the question was not moot because it was one of public moment. The court rejected that argument because the case did not present the urgent necessity for authoritative determination which would warrant an exception to the general rule. Cairo Turf Club, 2 Ill. 2d at 164,116 N.E.2d at 882.

As a general rule, a case on appeal becomes moot where the issues involved in the trial court no longer exist because events occurring after the filing of the appeal render it impossible for the appellate court to grant the complaining party effectual relief. (In re a Minor (1989), 127 Ill. 2d 247, 255, 537 N.E.2d 292, 295.) However, a case which normally would be deemed moot may qualify for review if it involves a question of great public interest. (In re a Minor, 127 Ill. 2d at 257, 537 N.E.2d at 296.) To determine whether a case meets the criteria for application of the public-interest exception, we examine “the public or private nature of the question presented, the desirability of an authoritative determination for the future guidance of public officers, and the likelihood of future recurrence of the question.” (In re E.G. (1989), 133 Ill. 2d 98, 105, 549 N.E.2d 322, 325.) This case falls within the public-interest exception. The Carbondale Commission has an interest “to the end that the health, safety, and welfare of the residents of the City of Carbondale shall be protected.” (Carbondale, Ill., Revised Code §2 — 1—1 (1988).) The Carbondale Commission, Beer Barn, Saluki Liquor, and other potential liquor-license applicants have an interest in the issuance of liquor licenses. The Illinois Liquor Control Commission and the courts have an interest in seeing to it that their mandates are carried out and are not thwarted by delays and situations which may inevitably evade review. It is desirable that the Carbondale Commission, the appellees, and future liquor-license applicants receive guidance as to the resolution of the matter at bar.

Notwithstanding the public-interest exception, we note:

“[T]he challenged governmental activity in the present case is not contingent, has not evaporated or disappeared, and, by its continuing and brooding presence, casts what may well be a substantial adverse effect on the interests of the petitioning parties.” (Super Tire Engineering Co. v. MeCorkle (1974), 416 U.S. 115,122, 40 L. Ed. 2d 1, 8, 94 S. Ct. 1694,1698.)

This case involves an event of short duration which is capable of repetition, yet evading review, thus necessitating a definitive resolution. (In re a Minor, 127 Ill. 2d at 258, 537 N.E.2d at 296.) We therefore find that the cases on appeal are not moot.

Cairo Turf Club is distinguishable because we are convinced that “identical situations will occur with such frequency as to make imperative the need for a positive rule.” (See Cairo Turf Club, 2 Ill. 2d at 164, 116 N.E.2d at 882.) In the case at bar, the license period for which Beer Bam and Saluki Liquor made application expired on June 30, 1991. Beer Bam and Saluki Liquor argue that plaintiff has repeatedly utilized delay tactics which have resulted in expiration of the license period before judicial resolution. They maintain that if allowed to prevail on the mootness point, the Carbondale Commission and other liquor commissions could continue to summarily and arbitrarily deny liquor licenses without accountability to any higher authority. We refrain from pointing an accusatory finger at any party for the delays in these cases; however, given the lapse of time, the multiple appeals in these cases (this is the third appeal to this court), and the expiration of the licensing period, the merit of appellees’ argument is apparent.

The next issue is whether the trial court erred in granting the motion to enforce judgment. Beer Barn’s and Saluki Liquor’s applications for liquor licenses stated they they were for the period “beginning July 1, 1990, and ending on July 30, 1991.” Thus the licensing period for which the appellees applied expired during the appellate process. Beer Bam and Saluki Liquor argue that they are entitled to current liquor licenses.

The orders of the Illinois Liquor Control Commission did not refer to a licensing year. The orders provided:

“That the action of the Local Liquor Control Commission of the City of Carbondale denying Appellant’s application for a package retail liquor license Be, and Hereby Is Reversed. It is Further Ordered that the Local Liquor Control Commission of the City of Carbondale issue instanter a package retail liquor license to the Appellant.”

Moreover, the trial court’s order granting the appellees’ motion to enforce judgment does not refer to a particular licensing year:

“The motion of Saluki Liquor, Inc., and Beer Barn, Inc., to enforce the order of the State Liquor Control Commission is hereby granted, and the City of Carbondale Liquor Control Commission is directed and ordered to grant and issue licenses to the plaintiffs.”

The Carbondale Commission concedes that pursuant to the trial court’s order the Carbondale Commission would have to issue current liquor licenses to the appellees. The Carbondale Commission contends, however, that the most the trial court had authority to do was to order that licenses be issued for the 1990-1991 licensing period for which the appellees originally applied.

The Carbondale Commission argues that its only reason for continuing to refuse to issue the licenses is that the licensing period has expired. Since the decision of the Illinois Liquor Control Commission ordering that the licenses issue and this court’s finding that the local commission has no standing to appeal that decision, the Carbondale Commission has not asserted any grounds for cause as to why it continues to refuse to issue the licenses. We find the determination of the trial court that the Carbondale Commission issue the Beer Barn and Saluki Liquor licenses was not erroneous. The court was merely mandating that the Carbondale Commission grant physical custody of the two liquor licenses to the appellees. Under the circumstances, the mere passage of time cannot be used as a shield to avoid the mandate of the Illinois Liquor Control Commission. We affirm the trial court’s decision.

No. 5-92-0617, Affirmed.

No. 5 — 92—0618, Affirmed.

MAAG, J., concurs.

PRESIDING JUSTICE CHAPMAN,

dissenting:

I would agree with the result reached by the majority, but I feel compelled to dissent because I believe the outcome of these cases is controlled by the Illinois Supreme Court’s decision in People ex rel. Cairo Turf Club, Inc. v. Taylor (1954), 2 Ill. 2d 160,116 N.E.2d 880.