author: PRESIDING JUSTICE EGAN

text:
    BERKELEY PROPERTIES, INC., Plaintiff-Appellant, v. BALCOR PENSION INVESTORS II et at., Defendants-Appellees.
    First District (6th Division)
    No. 1—91—0483
    Opinion filed January 31, 1992.
    Rehearing denied April 22, 1992.
    Modified opinion filed April 24, 1992.

      Harvey J. Barnett, of Barnett, Bornstein & Blazer, Ltd., of Chicago, for appellant.
    Raymond E. Stachnick and Cynthia Photos Abbott, both of Katten, Mu-chin & Zavis, of Chicago, for appellees.
   PRESIDING JUSTICE EGAN

delivered the opinion of the court:

The plaintiff, Berkeley Properties, Inc. (Berkeley), appeals from an order denying its motion for summary judgment and granting the cross-motion for summary judgment in favor of the defendants, Balcor Pension Investors II (Balcor) and Balcor Mortgage Advisors, Inc. The sole issue is whether the trial judge correctly interpreted the language of an agreement between the parties.

On December 29, 1982, Balcor loaned $5,400,000 to Interstate Plaza Associates, Ltd. (Interstate), for the purpose of constructing an office building known as Interstate Plaza Office Building (Property I) in Boca Raton, Florida. Balcor and Interstate executed a secured promissory note (the Balcor Note) for $5,400,000. The Balcor Note, which was executed in Florida, was a “wrap-around” note, in that the amount included the principal balance of $3,050,000 due on an underlying note and first mortgage in favor of Northwestern Mutual Life (Northwestern), which covered property known as Interstate Plaza II (Property II). Property II was adjacent to Property I and was owned by an entity separate from Interstate. The Balcor Note was secured by a wrap-around mortgage, made by Interstate and Scotia Interstate, Inc. (Scotia), in favor of Balcor, encumbering Property I. (For explanation of wrap-around mortgages, see generally Notes, Unwrapping the Wraparound Mortgage Foreclosure Process, 1990 Wash. & Lee L. Rev. 1025; Note, Wrap-Around Financing: A Technique for Skirting the Usury Laws, 1972 Duke L.J. 785.) Scotia was the ground lessor of Property I. The parties have treated both Scotia and Interstate as the owners of Property I. They will be identified as “the Holders.”

The Balcor Note was nonrecourse, that is, it specifically provided that the Holders would “not be personally liable by reason of any default in the payment of this Note.” The Note further provided that Balcor agreed “to look solely to the Mortgaged Property [Property I] *** for the payment of any amount due under this Note.”

The Northwestern Note was an amortizing note with monthly payments allocated to the reduction of principal and payment of interest. The Balcor Note was a nonamortizing note with monthly payments allocated to interest only. The fixed monthly payments by the Holders to Balcor included the principal and interest on the Northwestern Note and only the interest on the Balcor Note. Beginning on January 1, 1983, the interest payments were to be $50,062.50 per month; 35 months later they were to be $58,500 per month and three years after that they were to be $62,250 per month until the note was paid. The entire amount of principal was due on September 1, 1994. Balcor did not become liable on the note, and the Holders were not relieved of liability. Thus, Balcor’s role vis-a-vis Northwestern was that of a conduit in that Balcor would pay Northwestern from the interest payments it received from the Holders.

Contemporaneous with the execution of the Balcor Note and mortgage, the parties entered into an “Agreement Regarding Final Payment of Mortgage” (the Agreement). The Agreement recited that the Holders had represented to Balcor that at some date within three years after the Agreement was executed the Holders might elect to secure a release of the Northwestern mortgage. The Holders would be required to make a partial prepayment of the Northwestern Note, “which will not affect the monthly payments thereunder.” The Agreement further provided as follows:

“Balcor hereby acknowledges that it is not to benefit by the Prepayment, and the parties hereto wish to provide for the return of said Prepayment to Holders upon the maturity of the Balcor Loan.
* * *
Balcor hereby acknowledges that upon the final payment of principal and interest under the Balcor Note, the outstanding principal balance of the Underlying Notes [Northwestern Note] shall be deemed to be the amount (‘Deemed Amount’) which would have been the then-outstanding principal balance of the Underlying Notes had said Prepayment not been made (the difference between said Deemed Amount and the actual principal balance of the Underlying Notes is hereinafter referred to as the ‘Equity’). Balcor hereby acknowledges that the Equity shall be the exclusive property of Holders, and that Balcor shall make no claim on account thereof.”

Immediately following the closing on the Balcor Note, Interstate and Scotia sold Property I to Boca Interstate Associates, Ltd. (Boca), with Balcor’s approval. At the same time Boca purchased Property II. On January 1, 1984, Boca made a partial prepayment of the Northwestern Note in the amount of $385,000. The effect of the prepayment is explained thus: Upon repayment of the $5.4 million of principal due on the Balcor Note, at maturity or any earlier date, Balcor would repay the principal balance then due Northwestern, retain an amount sufficient to recover the Balcor funds advanced ($2,353,000) at the time the loan was made by Balcor, and retain any remaining balance as its equity buildup as provided for by the terms of the Balcor Note. The prepayment resulted in an equity buildup retained by Balcor in an amount in excess of that which was agreed to under the terms of the Note. It is the right to that excess “equity” which is the subject of this lawsuit.

On September 1, 1986, the Holders defaulted on their obligation to make the monthly installments due Balcor. Balcor demanded that the Holders cure the default. When the Holders failed to cure the default, Balcor notified the Holders and Boca that all amounts owing under the note had been accelerated and were immediately due. According to the affidavit of Donald Price, a vice-president of Balcor, the principal balance due Northwestern before the prepayment was $2,819,914 and the principal balance after the prepayment and subsequent payments until the default was $2,289,284 representing a total equity of $530,630 which would have been available to the Holders under the Agreement (in the absence of a default, according to Balcor). The plaintiff maintains that the equity totals $630,000.

Balcor advised the parties that it would foreclose the lien of the wrap-around mortgage if the total indebtedness was not paid on or before November 3, 1986. On November 21, 1986, Boca transferred its interest in the property to Scorpio Realty, Inc. (Scorpio), without the consent of Balcor as required by the wrap-around note and mortgage. Berkeley Realty Associates, Inc., and plaintiff, Berkeley Properties, Inc., each owned 50% of the shares of Scorpio. In turn, Lanny Horwitz and Carl Sax each owned 50% of the shares of Berkeley Realty Associates, Inc., and Berkeley Properties, Inc.

On December 17, 1986, Balcor filed a complaint to foreclose its mortgage in the circuit court of Palm Beach County, Florida. On January 23, 1987, Scorpio assigned any sums to which it was entitled under the Agreement to the plaintiff, Berkeley Properties, Inc.

Scorpio filed for bankruptcy, and that filing stayed the Florida foreclosure proceedings. On December 14, 1987, the bankruptcy court dismissed Scorpio’s claim for relief with prejudice, finding that the case constituted a bad-faith filing.

On May 31, 1988, a final judgment of foreclosure was entered in the Florida proceedings. The judgment found that the sum of $7,637,255 was due Balcor on the wrap-around note and mortgage. Pursuant to the judgment order, a judicial sale of the property took place. Balcor was the sole bidder and acquired title to the property with a bid of $100. After the sale, $7,637,155 of the judgment remained unsatisfied. The foreclosure judgment order expressly provided that the court had not determined the rights of Berkeley under the Agreement and that the payment in satisfaction of the mortgage and the sums due Balcor from the proceeds of the sale would not affect the rights of Berkeley under the Agreement.

On February 7, 1990, Berkeley filed this complaint in the circuit court of Cook County seeking a declaratory judgment that Berkeley was entitled to receive the sum due to the Holders under the Agreement as a result of the prepayment. Berkeley’s complaint asserted that “final payment” was made when the property was sold at the foreclosure sale. The complaint also alleged breach of contract, unjust enrichment, and breach of the obligation of good faith. The judge denied Berkeley’s motion for summary judgment on the declaratory judgment count and entered summary judgment on behalf of Balcor.

Both sides agree that the issue in this case is whether the sale of the property to Balcor pursuant to the foreclosure judgment was a “final payment” as that term is used in the Agreement. In substance, the trial judge found that there had been no “final payment” because of the existence of a “deficiency.” He held that a deficiency existed because the property had been sold for a sum insufficient to satisfy the obligation owed to Balcor.

Initially, Berkeley contends that Florida law applies in this case. However, Berkeley also contends it would prevail under either Florida or Illinois law. Balcor does not concede that Florida law applies, but Balcor asserts that Berkeley would not prevail under either Florida or Illinois law. The Balcor Note expressly provided that its validity and enforcement would be governed and controlled under Illinois law. The mortgage states that it shall be governed by the laws of Illinois, except the laws of Florida shall apply to “the creation, priority, perfection and maintenance of the lien of the security interest or to proceedings taken for the enforcement of the rights of the mortgagee [Balcor].” The Agreement is silent as to what law is applicable. When instruments are entered into simultaneously, they must be construed together. (See Sandra Frocks, Inc. v. Ziff (1947), 397 Ill. 497, 74 N.E.2d 699; see also International Ship Repair & Marine Services, Inc. v. General Portland, Inc. (Fla. App. 1985), 469 So. 2d 817.) We conclude, therefore, that the Note, mortgage and Agreement should be construed pursuant to Illinois law. We further conclude that there is no substantial difference between Florida and Illinois law insofar as the construction of the Agreement before us is concerned. Florida law governing foreclosure procedures is relevant and will be discussed later in this opinion.

Interpretation or construction of a contract is a matter of law, and an appellate court is not restricted in its right to reassess the meaning and effect of a written instrument. (Zale Construction Co. v. Hoffman (1986), 145 Ill. App. 3d 235, 494 N.E.2d 830; Leseke v. Nutaro (Fla. App. 1990), 567 So. 2d 949.) Neither party raises any question of fact, although Berkeley does argue that a question of fact would exist if this court determines that the existence of a theoretical “deficiency” precludes the plaintiff from receiving the Equity under the Agreement.

The defendant argues that there can be no final payment if a deficiency exists. The plaintiff answers that there is no deficiency because the note is a nonrecourse note. The defendant replies that there is a difference between a deficiency and a deficiency judgment and that the defendant’s inability to receive a deficiency judgment does not mean that a deficiency cannot exist. The trial judge agreed with the defendant’s distinction between deficiency and deficiency judgment, and, as an academic matter, so do we. A debt may be unenforceable because of the lapse of the statute of limitations, but the debt still exists. So also, a deficiency may exist, but a claim for the deficiency may not be enforceable. Our agreement with the defendant on this abstract point, however, is not dispositive of the ultimate issue, which is the intent of the parties as evidenced by the language they used in the Agreement. In determining that intent, we will consider whether the record establishes a deficiency as a matter of law and how the existence of a deficiency is to be determined.

The primary object, purpose or consideration in construing a contract is to determine the intent of the parties. (Schoeneweis v. Herrin (1982), 110 Ill. App. 3d 800, 443 N.E.2d 36.) A contract cannot be construed for the purpose of supplying an intention not otherwise shown. (Chicago Land Clearance Comm’n v. Jones (1957), 13 Ill. App. 2d 554, 142 N.E.2d 800.) The intention of the parties to a contract must be determined from the language employed in the contract. (Western Illinois Oil Co. v. Thompson (1962), 26 Ill. 2d 287, 186 N.E.2d 285.) To support a finding in favor of the defendant, therefore, we must construe the terms of the Agreement to be an expression of the intention of the plaintiff and the defendant that “final payment” was to depend on whether a deficiency existed. It is the defendant’s position that the foreclosure proceedings themselves established the deficiency and the amount when it bid $100 for the purchase of property for which it loaned over $2 million a few years before. Therein lies a fatal flaw in the defendant’s position. Florida law, which governed the foreclosure procedures followed in this case, provides that a separate hearing may be held to determine whether a deficiency exists and the amount of any deficiency. (Flagship State Bank v. Drew Equipment Co. (Fla. App. 1981), 392 So. 2d 609.) Even under Illinois law, confirmation of a judicial sale may be rejected if the difference between the amount bid and the foreclosure judgment is “unconscionable.” (Ill. Rev. Stat. 1989, ch. 110, par. 15 — 1508.) Contrary to Balcor’s argument, we judge that the purchase price is one of the “terms of sale” as that phrase is used in the statute. The point we wish to make is that the curtain does not fall when property is sold at foreclosure proceedings for less than the amount of the judgment. The law provides for avenues of relief which are available to the judgment debtor to contest the terms of the sale. For these reasons, we reject the defendant’s argument that a deficiency was finally established as a matter of law by the foreclosure sale itself. That being so, the question arises: Where and how are the existence and amount of a deficiency to be determined?

The defendant concedes that under both Illinois law (Bank of Benton v. Cogdill (1983), 118 Ill. App. 3d 280, 454 N.E.2d 1120) and Florida law (Heim v. Kirkland (Fla. App. 1978), 356 So. 2d 850) it could not receive a deficiency judgment because of the nonrecourse nature of the note. It also concedes that under Florida law the passage of two years after foreclosure would bar it from seeking a deficiency, even if the note had been a recourse note. (Financial Security Savings & Loan Association v. Espana River Partnership (Fla. App. 1989), 537 So. 2d 683.) In addition, no Illinois court and no Florida court would entertain an action to determine the existence of a deficiency solely as an advisory device for the benefit of the parties. Consequently, when the parties entered into the Agreement, they are presumed to have known that a judicial sale for less than the foreclosure judgment would not necessarily establish a deficiency and that there was no forum which would decide that a deficiency existed in the absence of an actual controversy.

Contracts should receive a fair and reasonable construction. (Tatar v. Maxon Construction Co. (1973), 54 Ill. 2d 64, 294 N.E.2d 272.) It is not reasonable that the plaintiff intended to surrender its right to the Equity simply because Balcor might assert that a theoretical deficiency existed. Balcor argues that the result we reach here is unfair because it may have, at this point, lost a substantial amount of money. But the fairness argument cuts both ways. Let us assume that someone bid almost all of the amount of the judgment but still left a deficiency of $1,000. It would still be the position of Balcor that the plaintiff had no right to recover the $530,000 (or $630,000) equity because of a $1,000 deficiency. The unfairness of that result is obvious. Moreover, “ ‘courts will not, because a more equitable result might be reached thereby, construe into a contract provisions that are not therein.’ ” (Tatar v. Maxon Construction Co., 54 Ill. 2d at 67, quoting Westinghouse Electric Elevator Co. v. La Salle Monroe Building Corp. (1946), 395 Ill. 429, 433, 70 N.E.2d 604.) We judge, therefore, that the parties did not intend that a judicial sale of the property for less than the judgment would bar Berkeley’s right to the Equity.

We turn now to the language of the Agreement relied on by the plaintiff. The Note states that Balcor will look solely to the mortgaged property for the “payment of any amount due” under the Note or performance of any obligations under the Note. (Emphasis added.) In our judgment, “payment of any amount due” includes a “final payment.” The Agreement provides that “Balcor acknowledges that it is not to benefit by the Prepayment, and the parties hereto wish to provide for the return of said Prepayment to Holders upon the maturity of the Balcor Loan.” (Emphasis added.) “Maturity” is defined as “[t]he date at which an obligation, such as the principal of a bond or a note, becomes due.” (Black’s Law Dictionary 883 (5th ed. 1979).) Upon the Holders’ default, the entire obligation became due; thus, the loan reached maturity. The Agreement also provided that “Balcor hereby acknowledges that the Equity shall be the exclusive property of Holders, and that Balcor shall make no claim on account thereof.” (Emphasis added.) In construing the Note and Agreement together, we judge that it was the intent of the parties that acceptance of the property after default would constitute “final payment,” as that term is used in the Agreement.

The defendant cites, and the trial judge relied on, Strause v. Dutch (1911), 250 Ill. 326, 95 N.E. 286. We do not believe that Strause v. Dutch supports the defendant’s position. The court there expressly pointed out that the only question before it was whether a mortgagee who had “secured a deficiency decree after the sale of the mortgaged property *** is such a decree creditor as is entitled, under the statute, to redeem the premises sold.” (Emphasis added.) (250 Ill. at 330.) Apart from the fact that the issue in Strause, which involved a recourse note, was a narrow one not present here, there is the overriding fact that the case before us involves a nonrecourse provision; this is a fact that we cannot simply ignore. Similarly, the other case cited by the defendant, Connelly v. Central States Southeast & Southwest Areas Pension Fund (5th Cir. 1963), 315 F.2d 683, 684, does not support the defendant’s position. Connelly also dealt with a recourse note which provided that there would be release of certain land “if the [mjortgagors be not then in default.” The note also stated that the mortgagors must “make payments on the [njote promptly as the same become due and payable.” The mortgagor contended that upon the foreclosure of the property the land was released. The court held that the term “payment” was meant to be a voluntary payment, and not payment through a foreclosure. We emphasize that the case did not deal with a note which contained language that the mortgagee was to look to the property for “payment of any amount due.”

The defendant also argues that summary judgment in its favor was proper because of other language in the Agreement and because the plaintiff allegedly has no standing to assert any right to the Equity.

Paragraph 3 of the Agreement states that the Holders “waive, and agree that they shall not be entitled to or assert” any rights with respect to the prepayment as against “Balcor’s right to receive payment on account of all or any portion of the Balcor obligations.” The paragraph further provides that the Holders acknowledge that any rights they may have arising with respect to the prepayment shall at all times be subject and subordinate to the rights of Balcor under the Balcor Note. Balcor argues that by this paragraph the Holders agreed not to assert any of their rights arising from the prepayment against Balcor’s right to receive payment under the Note.

It is presumed that parties do not insert meaningless words and phrases into contracts; therefore, no part of a contract should be rejected as meaningless or surplusage. (In re Estate of Savage (1979), 73 Ill. App. 3d 656, 392 N.E.2d 263.) Acceptance of Balcor’s interpretation would render meaningless the language of the Note and the Agreement which we have quoted in support of the plaintiff’s position. It is reasonable to conclude that the rights of the Holders were subordinate only to Balcor’s right to accelerate, foreclose, and receive the property. We must, therefore, reject the defendant’s argument that what was given to the plaintiff in the Note and paragraph 4 of the Agreement was taken away by paragraph 3 of the Agreement.

The last argument of the defendant that the plaintiff lacked standing to assert any right to the Equity was not considered by the trial judge. We recognize that an appellee may seek affirmance on any ground contained in the record, but, because we have concluded that this case must be remanded for resolution of other questions, we will refrain from passing on this argument.

The plaintiff asks that we enter summary judgment in its behalf. We conclude that we may not do so because of the still unresolved affirmative defenses raised by the defendant. The case, therefore, must be remanded for further proceedings to resolve those affirmative defenses as well as the other counts of the complaint. At the same time the court may consider and pass on the defendant’s last claim that summary judgment was properly entered because of the plaintiff’s alleged lack of standing.

The order granting summary judgment in favor of the defendant is reversed, and the cause is remanded for further proceedings consistent with the views expressed in this opinion.

Judgment reversed and remanded.

RAKOWSKI and LaPORTA, JJ., concur.

       Balcor also maintains that if it subsequently sells the property for an amount in excess of the judgment, it may retain the excess.


source: Caselaw Access Project

author: JUSTICE BOWMAN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN FETTER, Defendant-Appellant.
    Second District
    No. 2—90—0024
    Opinion filed April 10, 1992.
    Rehearing denied May 27, 1992.

      G. Joseph Weller and Manuel S. Serritos, both of State Appellate Defender’s Office, of Elgin, and G. Edward Moorman, of Williamson, Webster, Groshong, Moorman & Falb, of Alton, for appellant.
    Paul A. Logli, State’s Attorney, of Rockford (William L. Browers and Gregory L. Slovacek, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE BOWMAN

delivered the opinion of the court:

Following a jury trial, defendant, John Fetter, was found guilty of two counts of aggravated battery (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 4(b)(6)) and not guilty on counts charging burglary and a third aggravated battery. He was sentenced to seven years in the Department of Corrections on each of the aggravated battery convictions. The sentences were ordered served consecutively. On appeal, the defendant urges that the trial court erred by (1) failing to have the jury instructions specify which aggravated battery count applied to which victim; (2) refusing defendant’s tendered self-defense instructions; and (3) imposing consecutive sentences.

The relevant facts indicate that the charged burglary occurred on June 24, 1989, at Hanson Engineers, Inc., in Rockford. Officers Hoshaw, Vandiver and Dock of the Rockford police department encountered defendant during their investigation of the burglary. As a State’s witness, Officer Vandiver testified that, on June 24, 1989, while talking to defendant inside his hotel room, evidence linking defendant to the Hanson Engineers burglary was observed. When Vandiver grabbed defendant’s arm in an effort to control his movement, a struggle ensued during which defendant bit Vandiver’s arm, drawing blood, and later requiring medical attention in the form of antiseptic and a bandage. Vandiver denied hitting or striking defendant. On direct examination, Vandiver testified he grabbed defendant’s arms when defendant attempted to quickly exit the room. On cross-examination, Vandiver stated he grabbed defendant’s arm when he attempted to answer the telephone in his room. On redirect examination, in answer to the question, “Any injuries to you?” Vandiver stated, “Not to my [sic] personally.”

Officer Hoshaw testified that, during the conversation with defendant in his hotel room, Officer Vandiver grabbed defendant’s arm as he turned to answer the telephone whereupon defendant started to fight. During the five-minute struggle to restrain him, defendant bit Hoshaw’s hand causing him great pain and leaving a circular pattern of tooth marks which were visible for the following six to eight weeks. On cross-examination, Hoshaw stated that defendant bit him on the hand after Hoshaw applied to defendant’s wrist a pain compliance technique called a “gooseneck hold.” Hoshaw stated that, when his hand was bitten, he used his head to butt the top of defendant’s head. Hoshaw further stated that during the struggle to subdue defendant he observed Officer Dock hit defendant in the upper chest and face area.

Officer Dock testified that, after defendant was handcuffed and escorted outside, he was searched. During the search defendant forcibly ran into the officer. As Dock pushed him away, the defendant bit Dock’s wrist. To release defendant’s bite hold, Dock used his knee to strike defendant three times in the head/neck area. The bite caused swelling and left a bruise lasting several days but did not break the skin.

The defendant did not testify at the trial. However, his oral confession to the burglary was admitted as part of the State’s case in chief. The aggravated battery charges were not addressed in the confession.

The aggravated battery charges against defendant were based on the bite wounds sustained by the police officers. However, defendant contends that the court erred in failing to instruct the jury as to which aggravated battery count pertained to which police officer. Defendant correctly points out that the headings of the jury verdict forms do not specifically provide the name of each officer but refer only to respective counts. For example, the guilty verdict form for count II stated:

“No. 89 — CF—887—(Count II)
We, the jury, find the defendant, John Fetter, guilty of Aggravated Battery, as charged in the Information.”

There was a similar not guilty verdict form for count II and similar guilty and not guilty verdict forms for counts III and IV.

Defendant further emphasizes that the written instruction given to the jury did not help to clarify the victim involved in each count. In pertinent part, the issue instruction was in the following form:

“To sustain the charge of aggravated battery, the State must prove the following propositions:
1. That the defendant knowingly or intentionally without legal justification caused bodily harm to John Horshaw [sic]-, and
2. Knows the individual harmed is a peace officer engaged in the execution of any of his official duties; and
3. That the defendant was not justified in using the force which he used.
If you find from your consideration of all the evidence that each one of these propositions has been proved beyond a reasonable doubt, you should find the defendant guilty.
If you find from your consideration of all the evidence that any one of these propositions has not been proved beyond a reasonable doubt, you should find the defendant not guilty.”

Similar form issue instructions containing the names of Officers Van-diver and Dock were read to the jury. However, nowhere in the written instructions was the jury informed that count II pertained to Officer Hoshaw, count III pertained to Officer Vandiver, or that count IV pertained to Officer Dock.

Defendant argues that the written instructions and verdict forms confused the jury as evidenced by their not guilty verdict as to Officer Vandiver on count III, which, according to defendant, was the strongest case against him. The State responds initially that defendant has waived this issue on appeal by failing to raise the objection at the conference on instructions, to tender instructions without the claimed error, or to raise the claimed error in his post-trial motion. The State further argues that, even if there was no waiver, the instructions and verdict forms were proper. We agree that the issue of unclear instructions confusing the jury is waived.

The general rule with regard to criminal jury instructions is that the burden of preparing instructions is primarily on the parties, not the trial court. The trial court is under no obligation to give instructions not requested by counsel or to rewrite instructions tendered by counsel, and no party may raise on appeal the failure to give an instruction unless he has tendered it. (People v. Carlson (1980), 79 Ill. 2d 564, 583-84.) In addition, the failure to object at trial to an asserted error in jury instructions generally waives the issue on appeal (People v. Tannenbaum (1980), 82 Ill. 2d 177, 180) as does the failure to raise the issue in a written post-trial motion (People v. Enoch (1988), 122 Ill. 2d 176, 186). We need only review issues a defendant raises for the first time on appeal if the record reflects “plain error.” (Enoch, 122 Ill. 2d at 190-91.) Plain error is an error which deprives the defendant of a fair and impartial trial or any substantial error which occurs in cases where the evidence is closely balanced. People v. Schmidt (1988), 168 Ill. App. 3d 873, 878.

In applying these principles we find that, according to the record, defendant failed to tender jury instructions curative of his claimed error, failed to object to the error at the instruction conference, and failed to raise the issue in his post-trial motion. Accordingly, defendant has waived the issue of jury instruction error resulting from the court’s failure to specify in the jury verdict forms which aggravated battery count applied to which victim.

Additionally, we conclude that no plain error occurred. The record reveals that the judge, in presenting the instructions and verdicts, orally advised the jury which aggravated battery count related to which victim. Brief explanatory remarks concerning the forms of verdicts are permissible. (People v. Pastorino (1980), 90 Ill. App. 3d 921, 925.) We believe the trial judge’s oral explanation to the jury that count II applied to Officer Hoshaw, count III to Officer Vandiver, and count IV to Officer Dock was sufficient to overcome defendant’s claim of confusion in the jury instructions. Although defendant argues that the not guilty verdict on the aggravated battery count for Officer Vandiver evidences that the court’s failure to specify which count applied to which victim resulted in substantial error, we find a reasonable basis for the jury’s not guilty verdict premised on Vandiver’s inconsistent testimony as to whether he suffered an injury.

Defendant next argues that the court erred in imposing consecutive sentences by considering improper factors and by relying on section 5 — 8—4(a) of the Unified Code of Corrections (Code) (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8—4(a)) as statutory authority therefor. The State again counters that defendant has waived these issues by failing to object at the sentencing hearing or to raise the issues in an appropriate post-trial motion. Absent waiver, the State argues that the trial court’s sentence was proper because section 5 — 8—4(b) supports defendant’s consecutive sentences, and the court considered only proper factors in imposing sentence.

Although the general rule in Illinois is that the failure to object at trial constitutes a waiver, it is well established that in the interest of justice a reviewing court may consider all questions which appear to affect substantial rights of the parties. (People v. Martin (1988), 119 Ill. 2d 453, 458; see also 134 Ill. 2d R. 615.) Because defendant’s claim of error at sentencing affects fundamental liberty rights, we will examine his claim pursuant to our authority under Supreme Court Rule 615.

While defendant argues that the court erred in imposing consecutive sentences pursuant to section 5 — 8—4(a) of the Code, it is clear from the record that consecutive sentences were imposed not under section 5 — 8—4(a), but under section 5 — 8—4(b) of the Code. The trial judge stated that consecutive sentencing was appropriate pursuant to People v. Partee (1987), 157 Ill. App. 3d 231, and People v. Craig (1977), 47 Ill. App. 3d 242. In both Partee and Craig, the defendant was sentenced consecutively pursuant to the provisions of section 5— 8 — 4(b), which provides:

“The court shall not impose a consecutive sentence except as provided for in subsection (a) unless, having regard to the nature and circumstances of the offense and the history and character of the defendant, it is of the opinion that such a term is required to protect the public from further criminal conduct by the defendant, the basis for which the court shall set forth in the record.” Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—4(b).

We agree with defendant’s argument that section 5 — 8—4(a) would not authorize consecutive sentences under the facts presented in defendant’s case. We recently addressed similar questions in People v. Bole (1991), 223 Ill. App. 3d 247, appeal allowed (1991), 144 Ill. 2d 636, and People v. Dooley (1992), 227 Ill. App. 3d 1063, and concluded that the statutory provision in section 5 — 8—4(a) was intended to apply only to situations where the relevant offenses occurred during a single course of conduct. The record before us reflects that the respective aggravated battery offenses to Officer Hoshaw and Officer Dock were not part of a single course of conduct. Separate victims were involved and the criminal acts were separated in time and location. Hence, the offenses involved different proofs. The same or similar factors existed in Partee, Craig, Bole and Dooley.

Next defendant argues that the judge abused his discretion in considering good-time credit as a factor in imposing consecutive sentences. The judge stated he wanted the defendant to serve seven years in the penitentiary, adding that, taking good time into consideration, consecutive sentences would be 3V2 and 3V2 years. In People v. Clankie (1989), 180 Ill. App. 3d 726, 732, we held that the trial court’s consideration of good behavior credit is a permissible consideration in sentencing. (See also People v. Torgeson (1985), 132 Ill. App. 3d 384, 389.) Neither Clankie nor Torgeson is a consecutive sentence case. Defendant asks that we find that consideration of good-time behavior credit as a factor in consecutive sentencing cases constitutes an abuse of discretion. This we refuse to do. In Torgeson, we stated:

“In the absence of any authority to the contrary, we see no reason why a sentencing judge may not consider, as one factor, the realities of the sentencing law in fashioning a sentence which is reflective of both the seriousness of the offense and the defendant’s rehabilitative potential. A sentencing judge does not act in a vacuum, nor can he be expected to disregard the possibility of good-time credit which is inherent in every sentence of imprisonment. [Citation.] *** [A] sentencing court may properly determine the minimum amount of actual incarceration which is appropriate in light of the seriousness of the offense and the history and character of the defendant.” (Torgeson, 132 Ill. App. 3d at 389.)

We believe the reasoning of Torgeson applies equally well to the imposition of consecutive sentences.

Defendant next argues that the judge erred by considering the possibility of AIDS as a sentencing factor. The judge commented that he found the act of biting most disturbing, and if the victims had gotten AIDS from the bite the charge would be murder rather than aggravated battery. We find such remarks inappropriate because they were grounded on mere speculation. The record shows no connection between the medical condition commonly known as AIDS and the defendant, the bites, or the two victims. We do not find the comments sufficient, however, to warrant resentencing.

Sentencing is a matter for the discretion of the trial court and will not be reversed absent a showing of abuse of such discretion. (People v. Perruquet (1977), 68 Ill. 2d 149, 154.) The particular circumstances of each case must form the basis of any reasoned judgment as to the proper penalty to be imposed. (Perruquet, 68 Ill. 2d at 154.) Before reversing a sentence imposed by the trial court it must be clearly evident that the sentence was wrongfully imposed. (People v. Ward (1986), 113 Ill. 2d 516, 526.) In making the determination, the reviewing court should not focus on a few words or statements of the trial court; rather, the determination of whether the sentences were improper must be made by considering the entire record as a whole. (Ward, 113 Ill. 2d at 526-27.) The record here supports the sentences imposed.

At defendant’s sentencing hearing, the judge commented that three things struck him more than others: that defendant had been in the penitentiary on three prior occasions, that he was involved in 35 burglary cases, and the fact that the defendant bit the police officers. The judge stated that he considered the history, character and condition of the defendant; the nature and circumstances of the offense; and the public interest; and concluded that a sentence of imprisonment was necessary for the protection of the public and in the interest of the public. The record reflects that defendant was involved in 30 to 35 burglaries, served time in the penitentiary on three occasions, and had been involved in the use of drugs. His criminal activities spanned a period of approximately 14 years. Upon reviewing the record in its entirety, we cannot say that it is clearly evident that the defendant’s sentence was improperly imposed.

Defendant’s concluding argument is that the court erred in refusing his instruction No. 14, which was a non-Illinois Pattern Jury Instruction (IPI). Supreme Court Rule 451 (134 Ill. 2d R. 451) provides that, unless the IPI Criminal instructions applicable to the case fail to accurately state the law, the IPI Criminal instructions shall be used. Further, according to the rule, whenever IPI Criminal does not contain an instruction on the subject on which the court determines that the jury should be instructed, the instruction given on that subject should be simple, brief, impartial, and free from argument. The decision to give non-IPI instructions rests in the sound discretion of the trial court. People v. Stamps (1982), 108 Ill. App. 3d 280, 298.

Here, the State’s instruction No. 14 provided:

“A person is not authorized to use force to resist an arrest which he knows is being made either by a peace officer or by a private person summoned and directed by a peace officer to make the arrest, even if he believes that the arrest is unlawful and the arrest is in fact unlawful.”

In contrast, defendant’s instruction No. 14 provided:

“The use of excessive force by a police officer invokes the right of self-defense.”

We note that although the State’s instruction No. 14 is shown on the face of the instructions as a non-IPI instruction, it is in fact Illinois Pattern Jury Instruction, Criminal, No. 24 — 25.20 (2d ed. 1981), slightly modified. It is not disputed that defendant’s instruction is non-IPI.

The State asserts that the court properly refused defendant’s instruction No. 14 because it was a non-IPI instruction. Defendant insists that the disputed instruction was appropriate based on the following language in People v. Bailey (1982), 108 Ill. App. 3d 392:

“In Illinois, an individual may not use force to resist an arrest which he or she knows is being made by a peace officer, even if he or she believes that the arrest is unlawful and it is in fact unlawful. (Ill. Rev. Stat. 1979, ch. 38, par. 7 — 7.) This rule is qualified, however, in that it does not apply to a situation in which an officer uses excessive force. The use of excessive force invokes the right of self-defense. (Ill. Rev. Stat. 1979, ch. 38, par. 7 — 1.)” (Emphasis added.) Bailey, 108 Ill. App. 3d at 398.

Defendant urges that the law set forth in Bailey, and specifically the qualifying language used by the Bailey court which we have emphasized above, requires the court to give his instruction No. 14 whenever IPI Criminal 2d No. 24 — 25.20 is used. There is no merit to this contention.

We initially note that defendant tendered IPI Criminal 2d No. 24 — 25.06 at the instruction conference and the court gave it to the jury. That instruction covers the subject of defendant’s right to self-defense. It provides:

“A person is justified in the use of force when and to the extent that he reasonably believes that such conduct is necessary to defend himself against the imminent use of unlawful force.” (Illinois Pattern Jury Instructions, Criminal, No. 24 — 25.06 (2d ed. 1981).)

Thus, the jury was instructed on the issue of self-defense. The language that defendant relies on in Bailey (108 Ill. App. 3d at 398) (“the use of excessive force invokes the right of self-defense”) is merely the reviewing court’s invocation of section 7 — 1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1989, ch. 38, par. 7 — 1), upon which IPI Criminal 2d No. 24 — 25.06 was based (see Committee Notes), and is not a necessary addition to the instruction that a person is generally not authorized to use force to resist arrest by a peace officer.

We find no abuse of the court’s discretion in refusing defendant’s instruction No. 14, which is in essence a generalized regurgitation of a reviewing court’s interpretory language of a criminal statute which is provided in haec verba in IPI.

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

Affirmed.

GEIGER and UNVERZAGT, JJ., concur.


author: PRESIDING JUSTICE BARRY

text:
    RODGER ALVIS et al., Parents and Next Friends of Briana Li Alvis, a Minor, Plaintiffs-Appellees, v. HENDERSON OBSTETRICS, S.C., et al., Defendants-Appellants (BroMenn Healthcare, Defendant and Cross-Plaintiff-Appellant; William P. Henderson et al., Defendants and Cross-Defendants-Appellees).
    Third District
    Nos. 3—90—0663, 3—90—0674 cons.
    Opinion filed February 4, 1992.
    Modified opinion filed May 15, 1992.

      Livingston, Barger, Brandt & Schroeder, of Bloomington (Richard E. Stites, of counsel), for appellant BroMenn Healthcare.
    Jerome Mirza & Associates, Ltd., of Bloomington (Jerome Mirza, of counsel), for appellees Rodger Alvis and Marsha Alvis.

      Gary D. Nelson and Nicholas J. Bertschy, both of Heyl, Royster, Voelker & Allen, of Peoria, for Henderson Obstetrics, S.C., and William P. Henderson.
   PRESIDING JUSTICE BARRY

delivered the opinion of the court:

Briana Li Alvis, daughter of plaintiffs Rodger Alvis and Marsha Alvis, suffered severe injury to her kidneys at the time of her birth on November 15, 1983. This medical malpractice action was brought by plaintiffs against Dr. William P. Henderson, the obstetrician who delivered her, and BroMenn Healthcare, successor to Brokaw Hospital in Bloomington, where the delivery took place. Following a six-day jury trial, a verdict of $2,909,818.42 was returned in favor of plaintiffs, and on BroMenn’s counterclaim against Dr. Henderson for contribution, the jury apportioned the verdict 75% against the doctor and 25% against the hospital. Judgment was entered on the verdicts. However, after considering post-trial motions, the trial court vacated judgment on the counterclaim.

Dr. Henderson appeals from the judgment against him in favor of plaintiffs. BroMenn appeals from the judgment in favor of plaintiffs and from the denial of its counterclaim against Dr. Henderson.

Dr. Henderson was the attending physician for the delivery of Marsha Alvis’ first child born in 1981. Because the child was premature at birth, it had respiratory difficulties and had to be transferred to St. Francis Hospital in Peoria. When Marsha again became pregnant, she wanted to establish the correct due date. On the basis of her last menstrual period, Dr. Henderson said her due date was November 11, 1983, but a subsequent sonogram indicated a due date of December 25, 1983. A second sonogram also indicated a December 25 due date. Sonograms at that time were accurate within two to four weeks on either side of the predicted date.

Marsha testified that the second sonogram revealed the baby in a breech position (butt down) and that Dr. Henderson told her that he would deliver the baby by cesarean section if it was still breech three weeks before the December 25 due date.

Marsha was examined by Dr. Henderson twice on November 14 in his office. Both times he found her cervix to be thick and dilated two centimeters and the baby to be in a vertex position (head down). At 1:15 a.m. on November 15, Marsha was admitted to Brokaw Hospital with contractions about eight minutes apart. The admitting nurse, Cynthia (Murphy) Ptasnik, took her medical history, reviewed her prenatal record which was on file at the hospital, and performed a vaginal examination which she said indicated vertex presentation.

The nurse found the cervix to be dilated to three to four centimeters and to be effaced (thinned) about 60% to 70%. She called Dr. Henderson at 1:50 a.m. for orders and reported to him by telephone again at 6:30 a.m. before going off duty. During the night Marsha stopped feeling any contractions; however, a fetal monitor attached to her abdomen indicated that contractions were continuing and becoming more frequent. In the course of the telephone report at 6:30 a.m., Dr. Henderson ordered the administration of pitocin to augment labor so that the contractions would become more frequent and stronger.

After the shift change, Mary Kuerth was the registered nurse responsible for Marsha. At trial she testified that she had been uncertain as to the baby’s position after her first vaginal examination at about 6:30 a.m., although she made no such notation in the patient’s chart.

Dr. Henderson next examined Marsha in the hospital about 9 a.m., at which time he performed both Leopold’s maneuvers (abdominal palpitation) and a vaginal exam and found the baby to be in a vertex position. He then ruptured the membranes of the mother’s water bag.

Mary Kuerth administered the pitocin, performed nine vaginal examinations during the day, and reported Marsha’s progress by telephone to Dr. Henderson at regular intervals. All of Mary’s examinations were recorded as indicating vertex position. During the day the contractions became more frequent and cervical changes continued. About 2:35 p.m. Mary called Dr. Henderson to let him know that Marsha was making good progress and to find out how he could be reached when she was ready to deliver. According to Mary, cervical dilation had progressed by 21k centimeters between 1 p.m. to 2:45 p.m. and was seven to eight centimeters at that time.

As Mary Kuerth’s shift ended, Lynette Taylor came on duty and was assigned the care of Marsha Alvis. In doing her first vaginal examination at 2:55 p.m., she found the cervix fully dilated and the baby in a frank breech position (buttocks first). According to the fetal monitor, the baby’s heart beat was decelerating. Dr. Henderson was called and arrived three minutes later. He found the baby’s buttocks visible, determined that it was too late to perform a cesarean section, and proceeded with a vaginal delivery.

The baby’s buttocks came first followed by legs and body up to the neck. The nurses who were present in the delivery room testified that Dr. Henderson had his hands around the baby’s body with his thumbs in the small of the back and his fingers gripping the abdomen and upper thighs. He pulled on the baby several times and rotated her to obtain various angles in an effort to deliver the head. The umbilical cord was visible around the baby’s neck. The nurse assisting him asked three times whether he did not want to cut the cord, and after several minutes, the doctor did cut the cord and was then able to deliver the head. The baby was blue and not breathing. One of the nurses and Dr. Henderson began resuscitation on the baby, who soon began to breathe on her own.

Dr. Henderson testified at trial that after birth it was determined that the baby’s gestational age was 35 to 36 weeks, but that he had believed her to be full term on November 14, 1983. He also stated that he now believes he probably erred as to the vertex presentation and that she was probably breech the entire day since a reversal of position in the uterus is rare. He further testified that he believed the mother to be in labor when he ordered the pitocin and when he ruptured her water bag, and that the determination of gestational age and onset of labor are the responsibility of the doctor, not the nurses. He based his conclusion that labor had begun from the contractions and the effacement and dilation of the cervix.

Plaintiff’s key expert witness was Dr. Robert Kretzschmar of Iowa City, Iowa, who stated that in his opinion, the mother was not in labor before 11 a.m. on the morning of November 15. He also testified that it was his opinion that Dr. Henderson was negligent in ordering pitocin, in rupturing the mother’s water bag, in failing to discover that the baby was in a breech position, and in using excessive pressure on soft tissues in the delivery.

Dr. James Zimmerman, a pediatrician who arrived in the delivery room shortly after birth, observed bruises on the baby’s buttocks. He transferred her to St. Francis Hospital in Peoria because she was having respiratory problems. When the baby was three days old, a Peoria nephrologist, Dr. Philip J. Olsson, was called in because of her low urinary output. He saw a lot of bruising in her flank area and sacrum. Following an angiogram, he found her arteries open, but that extensive hemorrhaging had occurred in the flank area around the kidneys and under the capsula of the kidneys. As a result of clotted blood pressing on the kidney tissue, almost no blood was going into the kidneys. He attempted to drain blood to relieve the pressure, but obtained very little blood since it was no longer liquid. Extensive kidney damage had occurred.

At the time of trial, one kidney had been removed and the prognosis was that Briana would require a kidney transplant by the time she is 12 or 15 years old which, if the donor is a relative, would last 10 to 15 years. A second transplant, this one from a cadaver, would be attempted but with a shorter time before failure would occur. A third transplant might be possible, depending on her condition. Dr. Olsson stated that she would not be “a normal healthy person” and would be a greater surgical risk each time as a result of the transplants. In addition, she would run a greater risk of developing malignant tumors and other health problems. By about age 45, when the third transplanted kidney would begin to fail, she would then have to receive weekly dialysis treatments in order to survive. Dialysis sessions would be three to four hours in length three times each week. One side effect of dialysis is acceleration of hardening of the arteries in the patient.

Dr. Olsson stated that he had never seen a newborn baby with such injuries, and that such trauma could not have been caused by a normal birth. He testified that, in addition to the bruises, she had some injury to the skin on her back which left a scar. It was not disputed that the kidney injury was the result of birth trauma.

At trial plaintiffs advanced four theories of negligence against Dr. Henderson: (1) wrongful prescription of pitocin for a patient not in active labor and with the baby preterm; (2) wrongful rupture of the membranes when the baby was preterm; (3) failure to diagnose the baby’s breech position in time to perform a cesarean section delivery; and (4) application of undue pressure to the baby’s soft tissues during delivery. Plaintiffs’ theories of negligence against the hospital were (1) permitting pitocin to be administered to a patient who was not in active labor and who was preterm and (2) failure to detect the baby’s breech position in time for the doctor to perform a cesarean delivery.

We will first examine the contentions of BroMenn and of Dr. Henderson concerning the negligence issues. Both defendants contend the verdict and judgment were contrary to the manifest weight of the evidence in that plaintiffs failed to establish violations of standards of care as to the alleged acts of negligence and, further, that the evidence failed to establish that any wrongful acts of defendants were the proximate cause of the baby’s injuries.

When a jury considers several alternative grounds for a general verdict, a reviewing court can sustain the general verdict if any one of those grounds supports the general verdict and need not speculate as to which ground the jury found persuasive. (Moore v. Jewel Tea Co. (1970), 46 Ill. 2d 288, 263 N.E.2d 103; Hany v. General Electric Co. (1991), 221 Ill. App. 3d 390.) Thus, if there was sufficient evidence under any one theory to support a finding of negligence by each defendant, then the judgment must be affirmed. We do so find.

As to BroMenn’s liability, Dr. Henderson and Dr. Kretzschmar (plaintiff’s expert medical witness) both testified that a competent obstetrical and delivery nurse should be able to determine whether the baby was in breech position prior to delivery and that the doctor would rely upon the nurse to make that determination and to report to him in a timely fashion. In addition, the obstetrical director at Brokaw Hospital at the time of this occurrence testified that the hospital had a written policy requiring that its labor and delivery nurses be able to determine the presenting part of the baby by doing a vaginal examination. She also testified that it was a responsibility of the nurse to determine whether the baby was breech or vertex.

Defendant BroMenn relies upon evidence indicating that it may be difficult to make that determination before the water bag has broken and while the cervix is dilated less than nine centimeters and argues that plaintiffs’ evidence does not establish a standard of care for nurses in this matter. Clearly the witnesses did not all agree, and consequently, these issues involving credibility of the witnesses and weight to be given their testimony were for the jury to decide. (Witherell v. Weimer (1987), 118 Ill. 2d 321, 515 N.E.2d 68.) There was credible evidence of the standard of care to which labor and delivery nurses are held, i.e., to assess correctly the position of the fetus prior to delivery, and there was substantial evidence that defendant’s nurses violated that standard in this case. Plaintiffs’ evidence was sufficient to support the verdict and judgment on that issue.

BroMenn also contends that plaintiffs failed to establish that the undetected breech position was the cause of the baby’s injuries. However, Dr. Henderson testified that he preferred to deliver breech babies by cesarean section and that, had he known in time, he would have performed a cesarean section in this case. The fact that other witnesses testified that vaginal delivery of breech babies is perfectly safe and that cesarean delivery of a baby with a cord around the neck requires some maneuvering of the baby does not invalidate Dr. Henderson’s statement. As one witness indicated, a baby delivered by cesarean does not encounter the hard pelvic bones of the mother but is lifted out through the soft tissue of the uterine and abdominal wall, thereby having less risk of injury. The evidence is quite strong that, had the breech presentation been detected by the doctor or the nurses even one-half hour earlier, the tragic injury to the baby would not have occurred.

BroMenn argues that the undetected breech position at most created a condition which increased the risk of injury, and therefore, that plaintiffs failed to prove that the conduct of the nurses was the proximate cause of the injury. It has been said, “Negligent conduct cannot be the proximate cause of an injury, unless there is evidence that but for the conduct, the injury would probably have not resulted.” (Kind v. Hycel, Inc. (1977), 56 Ill. App. 3d 772, 787-88, 372 N.E.2d 385, 396.) Obviously the failure to detect the breech was not the sole cause of injury here, but it was a proximate concurring cause which, in a natural and continuous sequence, unbroken by any independent cause, produced the injurious event and without which that event would not have occurred. (See 57A Am. Jur. 2d Negligence §471 (1989).) We believe the flow of events constituting the birthing process was a part of one natural and continuous sequence which produced the baby’s injuries. The failure to determine the baby’s breech position earlier led to the difficult vaginal delivery and was a proximate cause of the injury, though not the sole cause.

The next question is whether there was sufficient evidence of Dr. Henderson’s negligence to support the verdict returned against him. In our view, the most persuasive evidence of Dr. Henderson’s negligence was that relating to the application of undue pressure to the soft tissue of the baby during the delivery process.

Dr. Henderson argues that there was no eyewitness evidence that he applied excessive pressure in the soft tissue areas of the emerging baby to contradict his testimony that he had his hands on the bony parts of the baby. He offered, as an explanation of the injuries, that the baby could have been injured by the mother’s pelvic bones as she passed through the birth canal.

Eyewitness testimony was not required here. The transcript of the trial discloses that plaintiffs’ medical experts testified that, in their opinion and based upon the bruising present after delivery, Dr. Henderson used excessive pressure on the baby’s soft tissues during the delivery. Dr. Olsson, the treating nephrologist, stated that he had never seen such severe injuries from a vaginal delivery. And the nurses present in the delivery room testified that Dr. Henderson pulled and twisted the baby’s torso for several minutes trying to free her head. Thus, the evidence of Dr. Henderson’s negligence in applying excessive pressure strongly supported the verdict against him.

The verdict in favor of plaintiffs and against both the hospital and the doctor was not contrary to the manifest weight of the evidence.

Defendant BroMenn next contends that the trial court erred in dismissing its counterclaim as violative of the four-year statute of repose. The date of birth was November 15, 1983, and BroMenn’s motion for leave to file a counterclaim was allowed on May 15, 1989. The jury’s verdict apportioning damages 75% against Dr. Henderson and 25% against the hospital was returned on May 25, 1990. On July 3, 1990, the Illinois Supreme Court filed its decision in Hayes v. Mercy Hospital & Medical Center (1990), 136 Ill. 2d 450, 557 N.E.2d 873, barring third-party actions against a physician or other health care provider after the period of repose. The trial court here followed the Hayes decision in dismissing the counterclaim when it entered its decision on post-trial motions on August 20,1990.

After Hayes the Illinois Supreme Court ruled in Antunes v. Sookhakitch (1992), 146 Ill. 2d 477, that, where the cause involves the claim of a minor plaintiff for medical malpractice, a third-party complaint for contribution may be filed within the eight-year period of repose applicable to the minor plaintiff. (Ill. Rev. Stat. 1989, ch. 110, par. 13 — -212(b).) Although Antunes involved a third-party complaint by a defendant in the underlying suit filed against two doctors not previously parties to the action, we are persuaded that the logic of the Antunes decision compels application of the same rule here, where the contribution action is a counterclaim by one defendant against another.

The court in Antunes observed:

“[Allowing the filing of [defendant’s] third-party actions within the same period of repose as the minor’s underlying complaint does not have the effect of lengthening the period of potential liability of [third-party defendants] or their insurers.” (146 Ill. 2d at 491.)

The same, of course, is true as to codefendants whose period of potential liability to a minor plaintiff is not extended by allowing a complaint for contribution between them to be filed within the same period of repose. To hold otherwise would deny a right to contribution in those cases where a minor plaintiff did not commence a medical malpractice action until after the four-year statute of repose (Ill. Rev. Stat. 1989, ch. 110, par. 13 — 212(a)) had expired, a result which the Antunes decision describes as an “absurdity and injustice.” 146 Ill. 2d at 488.

Defendant Henderson argues here that, unlike the facts in An-tunes, where the third-party complaint was filed only 10 weeks after the third-party plaintiff was named a defendant in the underlying cause, BroMenn did not seek leave to file its counterclaim until Mk years after the complaint was filed. Henderson suggests that BroMenn’s lack of reasonable diligence is a basis for distinguishing this case from Antunes. We cannot agree. Nothing in the Antunes decision purports to establish a reasonable diligence standard in addition to the statute of repose, and we decline to do so here. BroMenn brought its action for contribution within the eight-year statute of repose established by the legislature for medical malpractice actions by minors and recognized by the supreme court of Illinois in Antunes as applicable to counterclaims for contribution. That is sufficient to require a reinstatement of the judgment entered on the counterclaim in the trial court.

Therefore, we reverse the orders of the trial court which dismissed BroMenn’s contribution counterclaim and granted Henderson judgment notwithstanding the verdict. We reinstate BroMenn’s judgment against Henderson as originally entered on the verdict.

We next consider that both defendants, BroMenn and Dr. Henderson, contend that the trial court erred in instructing the jury that damages included the loss of future earnings as one element. Defendants argue that evidence was lacking of any impairment of Briana’s earning capacity or a reduction in her ability to perform work and that the $300,000 awarded by the jury for loss of future earnings was speculative and improper. They insist that Brown v. Chicago & North Western Transportation Co. (1987), 162 Ill. App. 3d 926, a case involving an adult plaintiff suing his employer for a back injury, should control here. We have no quarrel with Brown. In a case where the plaintiff is an employed adult, we agree that specific evidence of reduced ability to perform work would be required.

The instant case, however, is governed by those decisions involving a permanent injury to a minor child. In Hartseil v. Calligan (1976), 40 Ill. App. 3d 1067, 353 N.E.2d 10, where a 16-year-old plaintiff had suffered a back injury which left him with a permanent residual deformity of the spine, the trial court’s failure to instruct the jury concerning loss of future earnings was reversed. The applicable rule was stated:

“In Illinois the trier of fact may infer a future loss of earnings from the nature of an injury, and courts have permitted an instruction to that effect where evidence is adduced of some permanent injury to a minor child.” 40 Ill. App. 3d at 1069, 353 N.E.2d at 12.

Accord Redmond v. Huppertz (1966), 71 Ill. App. 2d 254, 217 N.E.2d 85.

Here the evidence is uncontradicted that Briana has suffered severe permanent injuries and that she will never be a normal healthy person. The jury could properly infer a future loss of earnings from the nature of her injury, and the instruction given was not error.

The final issue raised by defendants concerns the trial court’s refusal to allow evidence that medicare benefits would provide payment or reimbursement for 80% of the cost of future kidney treatment and dialysis. The jury found future medical expenses of $688,000. Defendants rely upon Peterson v. Lou Backrodt Chevrolet Co. (1979), 76 Ill. 2d 353, 392 N.E.2d 1, where the court held that the plaintiff could not recover the value of free services which had been provided by Shriners’ Hospital for Crippled Children since the plaintiff had incurred no expense or liability for those services. The Peterson court declined to extend the collateral source rule prohibiting evidence of insurance indemnification as a reduction of damages to a case where plaintiff made no contribution or premium for the charitable benefits received.

Peterson has been distinguished in a case where defendants sought to introduce evidence of the availability of free governmental services for handicapped children. In Northern Trust Co. v. County of Cook (1985), 135 Ill. App. 3d 329, 333-34, 481 N.E.2d 957, the court stated:

“Although Illinois law generally prohibits a plaintiff from recovering for ‘the value of services that he has obtained without expense, obligation, or liability’ (Peterson v. Lou Bachrodt Chevrolet Co. (1979), 76 Ill. 2d 353, 362, 392 N.E.2d 1), the trial court here refused to allow the jury to consider the free governmental services due to the uncertainty of their availability in the future. We find no error in the trial court’s decision. In Peterson, the plaintiff had already completed charitable surgical services prior to seeking compensation for the same services from the tortfeasor. The Peterson court did not decide the issue of reducing a defendant’s liability for future care because of the current availability of charitable and public welfare programs. In Peterson, the charitable assistance had already been received. In the instant case, however, the availability and level of future free services is a matter of speculation.”

In the ease before us, as in Northern Trust, the evidence defendants sought to present concerned the availability of governmental payments for future medical expenses. This court has previously held that such evidence is not admissible. (Phelan v. Santelli (1975), 30 Ill. App. 3d 657, 334 N.E.2d 391.) The availability and level of such payments for organ transplants and dialysis treatments at the future times predicted here is obviously speculative and hence was properly excluded by the trial court.

For the reasons stated, we reverse the orders of the trial court setting aside the judgment on the counterclaim in favor of BroMenn, and we affirm the judgment as entered on the verdict. We also affirm the plaintiffs’ judgment against all of the defendants.

Affirmed in part; reversed in part.

SLATER and HAASE, JJ., concur.


text:
    KIRK WITHERSPOON et al, Plaintiffs-Appellants, v. THE CITY OF MOLINE, Defendant (Craig Amundsen et al., Intervenors-Appellees).
    Third District
    No. 3—91—0451
    Opinion filed April 23, 1992.

      John W. Robertson, of Barash, Stoerzbach & Henson, of Galesburg, for appellants.
    Van Hooreweghe, Fackel & Thuline, of Moline (Francis Van Hooreweghe, of counsel), for appellees.
   PRESIDING JUSTICE BARRY

delivered the opinion of the court:

On November 7, 1989, the Moline city council, in a nine-to-five vote, denied an application of plaintiffs, Dr. Kirk and Carol Wither-spoon, for a special use permit to conduct a “home occupation” in their Moline residence. Plaintiffs pursued their cause in the circuit court of Rock Island County, which denied relief. In this appeal, plaintiffs contend that the circuit court erred in refusing their request to declare the zoning ordinance unconstitutional as applied by the city council in denying their request for a special use permit and that the circuit court’s decision is contrary to the manifest weight of the evidence. For reasons that follow, we reverse.

Plaintiffs’ residence is located on a 2.1-acre wooded lot at 722 23rd Avenue Court in Moline. It is zoned R-l (single-family residential for large dwellings) and is adjoined by the interveners’ properties zoned R-2 (single-family residential for slightly smaller dwellings). Plaintiffs built their home in 1988, incorporating an area designed as a professional office and waiting area after having twice applied for a special use permit. Their first application was denied in 1986. The second application was withdrawn by plaintiffs before a vote was taken by the plan commission in the spring of 1988. The application currently at issue was filed in August 1989, after construction was completed. It was denied by the plan commission and the planning committee before the city council held public hearings and voted on the application in November 1989.

Plaintiffs’ original complaint in the circuit court sought administrative review and reversal of the city council’s decision. It was later amended to request declaratory judgment instead. Although named as a defendant in the suit, the City of Moline has neither appeared nor answered the complaint. Rather, the interveners, neighbors of the plaintiffs, have defended the action. The circuit court conducted a bench trial “de novo” March 19-20, 1991, receiving into evidence testimony and exhibits presented by the plaintiffs and the interveners. On May 29, the court entered its order finding:

“1. That the denial of the special use permit was a product of a proper application of legislative discretion, and
2. That the action[s] of the [city council of the City of Moline] in the exercise of their proper delegated legislative authority were in compliance with the zoning laws of Rock Island County, and
3. That the actions of the [city council of the City of Moline] have not been shown to be unreasonable, arbitrary or capricious by clear and convincing evidence.”

Initially, we consider that plaintiffs ultimately elected to proceed in court on a complaint for declaratory judgment, challenging the validity of the ordinance as applied, and to abandon their request for administrative review of the city council’s decision. In so doing, plaintiffs accepted the burden of proving to the court by clear and convincing evidence that the zoning ordinance, as applied, “is arbitrary and unreasonable and without substantial relation to the public health, safety, comfort, morals or general welfare.” (Duggan v. County of Cook (1975), 60 Ill. 2d 107, 111, 324 N.E.2d 406, 408-09.) Having abandoned their suit for administrative review, the plaintiffs were not restricted to the evidence admitted before the city council. They were entitled to a trial directly challenging the constitutionality of the ordinance as applied to their situation and the concomitant right to present evidence in support of their position. (Perko v. City of Palos Heights (1971), 1 Ill. App. 3d 505, 274 N.E.2d 652.) In this appeal, we must determine whether the trial court’s decision to deny plaintiffs’ request for relief was contrary to the manifest weight of the evidence.

The evidence admitted at trial includes a copy of the Moline city zoning ordinance. According to sections 10.2 — 1.2 and 10.3 — 1 of the ordinance, “home occupations” are permitted in both R-l and R-2 districts. “Home occupation” is defined in section 3.2(47) as

“an occupation or profession customarily carried on by an occupant of a dwelling unit as a secondary use, and which use is clearly incidental to the use of the dwelling unit for residential purposes.
* * *
(2) Home occupations include, but are not limited, to the following: real estate broker or salesman, art studio, dressmaker, professional office of physician, dentist, architect, engineer, accountant, and teaching music. The following are not permitted in the R-l zoning district: barber shop, beauty shop, teaching of arts or crafts.
* * *
(4) Sufficient offstreet parking spaces shall be provided for the home occupation for each client, patient, student, etc. The parking shall be in addition to that required *** for the principal use.” Moline, Ill., Zoning Ordinance §3.2(47).

Dr. Witherspoon, a clinical psychologist, testified that plaintiffs desired the special use permit because of the tax advantage of having a home office and because Carol Witherspoon, the only person working for him, suffers from Crohn’s disease, making it difficult for her to work outside the home. Dr. Witherspoon further testified that some of his clientele, such as professionals, would feel more comfortable coming to a home office than to one more publicly sited. He opined that a public benefit could be gained if people needing his services were relieved of social stigma by being invited to the privacy of his rather secluded home office. He further testified that there would be no visits by clients posing a potential danger to others, since Dr. Witherspoon would continue his practice of treating such individuals at the Robert Young Mental Health Center. Using photographs of the home and surrounding property, Dr. Witherspoon testified that the lay of the land, a 750-foot private driveway, approximately 300-foot side-yards, and the trees protected the neighboring properties from view. The office and waiting-room area comprise 25% of the home.

Dr. Witherspoon explained that he had significantly modified his application for a special use permit since initially being denied such in 1986. The current application states that no group therapy will be given in the home, no additional employees will be assisting in the practice, he will see on average no more than six clients per day, he will see clients only five days a week, and he will make no appointments after 5:30 p.m. No signs would be used to advertise Dr. Witherspoon’s home office. Dr. Witherspoon estimated that the traffic flow to and from his property would be unchanged if the permit were granted, because additional traffic by clients would be offset by the reduction in travel by himself and his wife.

Also testifying on behalf of the plaintiffs was a neighbor, Katherine Peterson. Mrs. Peterson testified that she and her husband have lived on 23rd Avenue Court since before the Witherspoons moved in. She did not oppose the Witherspoons’ application and did not believe that the traffic flow in the residential neighborhood would be affected by the psychologist’s home office practice as proposed.

The township assessor, Betty Cruse, testified that according to her assessment, the Witherspoon home had a value of about $228,000, as compared to about $90,000 for the neighboring properties. She opined that permitting the home occupation as proposed would not affect property values in the surrounding residential neighborhood because of the way that the Witherspoon home is set apart from the others.

Karen Franklin, an urban planner for Iowa City, testified for plaintiffs as an expert witness. Ms. Franklin stated that she had visited the home and the neighborhood in question and had reviewed the Witherspoons’ application and the zoning ordinance with respect to home occupations. Ms. Franklin expressed her opinion that the Witherspoon application satisfied all criteria for a “home occupation” as defined by the zoning ordinance and further stated that she had no evidence indicating that the city council’s denial of the application was reasonable. Ms. Franklin would not, however, give an opinion as to whether the council’s denial was “arbitrary and capricious,” because she felt that that expression was a term of art in law upon which she was not competent to give an opinion.

Finally, two employees of the City of Moline testified for the plaintiffs — Harold Swanson, land development coordinator in the City of Moline Planning Department, and John Hoffstattar, director of engineering. Swanson testified that based on his investigation, the Witherspoon special use application satisfied all relevant criteria for a home occupation and it would not be harmful to the surrounding neighborhood. Hoffstattar testified that the traffic that would be generated by the proposed use would be akin to an additional house. He did not consider that to be a significant amount of traffic.

Testifying on behalf of the intervenors, in addition to three intervenors, was Norman Moline, a professor of geography at Augustana College, who testified as an expert witness. The intervenors all expressed their desire to keep the residential character of the neighborhood and their fear that by granting the Witherspoons’ application, the floodgates for other business enterprises would be opened up. They further expressed concern that their property values might be diminished and that Dr. Witherspoon might not adhere to the restrictions proposed with respect to the number of clients he would treat at the home office.

Mr. Moline testified that he had investigated the neighborhood in question and had formed the opinion that the decision of the city council denying the Witherspoons’ application was not arbitrary, capricious or unreasonable. Mr. Moline explained that he saw no particular public need to establish a psychologist’s office in a residential neighborhood, that there were sufficient commercial locations available for such, and that there was no indication that the neighborhood in question had anything other than residential uses at the present time. In Moline’s opinion, the council’s decision was consistent with the comprehensive plan for the City of Moline, and the city has the right to restrict uses of its residential area as it deems fit.

At the close of all evidence and after submission of written closing arguments, the circuit court entered its findings for the interveners.

The standard of proof at trial in a case such as this was stated by our supreme court in Duggan v. County of Cook (1975), 60 Ill. 2d 107, 111-12, 324 N.E.2d 406, 408-09:

“The zoning ordinance *** is presumed valid, and plaintiffs carry the burden of establishing that the existing classification is unreasonable and oppressive as applied to their land. [Citation.] The plaintiffs must establish by clear and convincing evidence that the existing ordinance, as applied to their property, is arbitrary and unreasonable and without substantial relation to the public health, safety, comfort, morals or general welfare. [Citation.] Specifically, when plaintiffs have been denied the issuance of a special use permit, as sought in this case, they carry the burden of showing that such denial bears no real and substantial relation to the public health, safety, morals or general welfare. [Citation.]
The general factors considered in arriving at this determination include the uses and zoning of nearby properties, the extent to which existing zoning diminishes the property’s value and the proposed zoning enhances it, the suitability of the property for the purposes permitted under the existing zoning, and the relative gain to the public as compared to the hardship imposed upon the property owner by the existing and the proposed zoning uses. [Citations.] Ultimately if it clearly appears that the relative gain to the public is small when compared with the hardship imposed upon the property owner by the zoning restriction, there is then no valid basis for the exercise of the police power to so limit the owner’s right to the use of his property. [Citations.]”

Applying the foregoing test to the instant case, it is clear to us that the great weight of the evidence supports plaintiffs’ position, and that the denial of their permit was an unreasonable and oppressive application of the zoning authority. The evidence establishes that the current zoning classification permits limited home occupations similar to that proposed by the Witherspoons (e.g., real estate broker, physician, dentist, architect, engineer or accountant’s office) which would presumably entail occasional client visits. However, it does not appear from the evidence admitted at trial that any such home occupations currently operate in the surrounding neighborhood. As we see it, the primary gain to the public in denying the permit is simply maintaining the neighborhood’s status quo. The intervenors’ expert, Moline, expressed his opinion that the potential gain to the public in granting the permit was tenuous, at best. This testimony, however, failed to address the relevant question of what public benefit, if any, would be gained by denying the permit.

On the other hand, the evidence clearly establishes that the residence in question is set well apart from the rest of the homes on 23rd Avenue Court, and the evidence supports the Witherspoons’ claim that their proposed use, as restricted in the current application, would not interfere with or impact upon the neighbors’ peaceful enjoyment of their properties. Competent evidence admitted at trial also tends to show that the value of other properties would not be adversely affected by the Witherspoons’ proposed use. Further, it is undisputed that Carol Witherspoon’s medical condition is such that a far greater hardship is imposed upon her if she cannot work in the home.

The testimony of record establishes that prior to the Wither-spoons’ construction, their lot had been vacant. Neighborhood children played there. Although four prior purchasers had attempted to develop the site, none had been successful. These aborted efforts, it appears, were the source of some of the neighbors’ concerns before the Witherspoon home was completed. Because of the ravines surrounding the lot, it was only at great expense that the Witherspoons were able to hook up to city utilities. The grant of a special use permit could allow the Witherspoons to recoup some of this expense as a consequence of favorable tax treatment and reduced office costs elsewhere.

It is clear to us that the economic advantages to the Witherspoons to be gained by granting the permit and the hardship imposed upon them by denying it far outweigh any health, safety and welfare consequences to the public in denying it. The intervenors understandably wish to preserve the value of their properties, and they fear the unknown risks that any home occupation in the neighborhood might pose. However, in this case, they have failed to point to any concrete or substantial detriment or property value diminution that the Witherspoons’ proposed use of their property could bring about. While we do not wish to leave the impression that we approve of the tactic of building a structure incorporating a use specifically denied in proper administrative proceedings, we do not believe that a proper sanction for such conduct is judicial approval of the denial of that use for no good reason.

In sum, we hold that the manifest weight of the evidence establishes that plaintiffs met their burden of showing by clear and convincing proof that the denial of their special use permit was arbitrary, capricious and unreasonable. The judgment of the circuit court of Rock Island County is, accordingly, reversed.

Reversed.

SLATER and HAASE, JJ., concur.


author: JUSTICE STOUDER

text:
    LINDA DEE, Plaintiff-Appellant, v. ARTHUR L. PETERS et al., Defendants-Appellees.
    Third District
    No. 3—91—0645
    Opinion filed April 23, 1992.

      Charles E. Ruch, Jr., of Petersen, Deck, Ruch & Baron, of Kankakee, for appellant.
    Christopher W. Bohlen, of Blanke, Norden, Barmann, Kramer & Bohlen, P.C., of Kankakee, for appellees.
   JUSTICE STOUDER

delivered the opinion of the court:

The plaintiff, Linda Dee, brought an action against the defendants, Arthur L. Peters and Darlene L. Peters, arising out of the sale of a home by the defendants to the plaintiff. The trial court dismissed certain counts of the plaintiff’s second amended complaint. The plaintiff moved for an interlocutory appeal pursuant to Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)). The trial court entered an order finding there was no just reason for delaying enforcement or appeal. We now affirm.

The plaintiff filed a second amended complaint on October 30, 1990. Count I alleged that the basement walls and foundation of the home the plaintiff purchased from the defendants were defective. Count I alleged the defendants knew of the defective condition, that the defendants had a duty to disclose the condition and that the defective condition was not discoverable through due diligence on the part of the plaintiff. The plaintiff alleged she relied on the defendants’ silence and failure to disclose said defects. Count II made identical allegations as to the defendants’ silence regarding a defective bathroom shower and water system. Count III made the same claim vis-a-vis the exterior walls of the home.

Counts VII, VIII, X, XI and XII concerned the same alleged defective conditions. These counts, however, were premised on a claim of a “fiduciary and/or confidential” relationship.

The defendants filed a motion to dismiss the second amended complaint. The trial court dismissed counts I, II and III, finding they failed to state a cause of action. In addition, the trial court found that the relationship of a buyer and seller does not in and of itself create a fiduciary duty and that no facts had been alleged in the second amended complaint to imply such a relationship. Therefore, the trial court dismissed counts VII, VIII, X, XI and XII for failure to state a cause of action.

On appeal from a dismissal for failure to state a cause of action, this court’s sole task is to determine whether the allegations of the amended complaint, when interpreted in the light most favorable to the plaintiff, are sufficient to set forth a cause of action for which relief may be granted. Wooded Shores Property Owners Association, Inc. v. Mathews (1976), 37 Ill. App. 3d 334, 345 N.E.2d 186.

The plaintiff argues that a home seller’s silence in not disclosing alleged defects, standing alone, gives rise to a cause of action for misrepresentation. Therefore, the plaintiff contends the trial court erred in dismissing counts I, II and III.

The plaintiff relies on Posner v. Davis (1979), 76 Ill. App. 3d 638, 395 N.E.2d 133. In Posner, the plaintiffs alleged the defendants fraudulently concealed certain defects in a home the plaintiffs purchased from the defendants. One of the defendants allegedly told the plaintiffs there had never been a basement flooding problem. In addition, at trial the defendants admitted removing damaged basement floor tiles and covering the damaged area with a large rug. The defendants also admitted to covering water-damaged walls of a third-floor bedroom with a vinyl wall-covering.

The appellate court found the evidence sustained the finding of fraud, citing the language from Russow v. Bobola (1972), 2 Ill. App. 3d 837, 277 N.E.2d 769, that silence accompanied by deceptive conduct or suppression of material facts results in active concealment. The court then went on to address the plaintiffs’ argument that there was a modern trend away from caveat emptor and that silence alone could constitute fraud. Citing Petersen v. Hubschman Construction Co. (1979), 76 Ill. 2d 31, 389 N.E.2d 1154 (finding an implied warranty of fitness with sale of new home by builder-vendor), and a California case (Lingsch v. Savage (1963), 213 Cal. App. 2d 729, 29 Cal. Rptr. 201) the court opined the law in Illinois should hold used-home sellers liable for failing to disclose material defects which the diligent buyer cannot discover.

We find at best this discussion in Posner to be dictum given the fact the defendants made statements denying basement water problems and admitted attempting to physically cover up the defects. The court was not presented with the issue of silence alone. Also a review of the cases cited by the plaintiff reveals that none involved silence alone. We find no circumstances in these counts which merit departure from the general rule, nor a basis for expanding the law of this State to premise used-home seller liability on silence alone.

In sum, counts I, II and III failed to state a cause of action for which relief could be granted, and the trial court correctly dismissed these counts. We note other counts of the complaint which were not dismissed alleged fraud based on silence combined with active concealment of the alleged defective conditions.

We also find no error in the trial court’s dismissal of the counts alleging a fiduciary or confidential relationship. A fiduciary obligation must be predicated upon a preexisting relationship of trust between the parties, or if the alleged fiduciary relationship is to be based on the transaction in question, a showing that the defendant, upon whom a duty to disclose is sought to be placed, at least impliedly accepted the trust and confidence plaintiff sought to repose in him. (Maguire v. Holcomb (1988), 169 Ill. App. 3d 238, 523 N.E.2d 688.) In the instant case, as a matter of law there was no fiduciary relationship between the parties, and there was no factual allegation from which such a relationship could be inferred.

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

Affirmed.

BARRY, P.J., and HAASE, J., concur.


author: JUSTICE SLATER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JESSIE LEE, Defendant-Appellant.
    Third District
    No. 3—91—0335
    Opinion filed April 27, 1992.

      Stephen Omolecki, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Edward Burmila, Jr., State’s Attorney, of Joliet, and Howard R. Wertz, of Lynwood (John X. Breslin, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE SLATER

delivered the opinion of the court:

Following a combined suppression hearing and bench trial, the defendant, Jessie Lee, was convicted of unlawful possession of cocaine (Ill. Rev. Stat. 1989, ch. SG1^, par. 1402(a)(2)). He was sentenced to three years’ probation, conditioned upon his serving 180 days in the county jail. A $1,730 street-value fine was also imposed. The defendant appeals his conviction.

The record reveals that at approximately 10:02 p.m. on August 16, 1990, police officer John Perona and his partner, Jay Sanders, were on patrol, when they heard a dispatch about gunshots being fired in the 1300 block of Arthur Avenue. Shortly afterward, the dispatcher reported that Joe Lee was a suspect in the shooting.

Officer Perona had had a previous run-in with Joe Lee and knew that he lived with his brother, the defendant. As the officers approached the Lees’ home in their unmarked squad car, they observed a van driving away from the area. They recognized the driver of the van as the defendant, Jessie Lee. They also saw a passenger slouched down in the seat of the van, but were unable to identify Joe Lee as the passenger. Officer Sanders testified that it looked as though the passenger was ducking down to make himself look shorter and possibly to hide his face.

Officers Perona and Sanders followed the van for a while and then pulled it over for the purpose of determining whether the passenger was Joe Lee. As the officers approached the van, they looked inside to check for weapons. In doing so, they noticed a plastic bag containing cocaine, located between the driver’s seat and the console. The defendant was arrested, as was the passenger, who was subsequently identified as Milton Young. A search of the vehicle turned up not only the cocaine originally spotted by the officers, but also additional cocaine in an armrest compartment on the passenger side of the van, and on the person of Young. However, the police never asked the defendant where his brother was.

The only issue raised on appeal is whether the trial court erred in denying the defendant’s motion to suppress. The defendant submits that the stop of his van was unlawful because it was based upon the mere hunch that his brother might be inside. See People v. Pantoja (1989) , 184 Ill. App. 3d 671, 540 N.E.2d 892.

Police may make investigatory stops of private citizens even though there is no probable cause to make an arrest. (Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868.) However, to justify the stop, the police officer must be able to point to specific, articulable facts which, when taken together with the rational inferences from those facts, reasonably warrant the intrusion. (Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868.) The reasonableness of a stop involves a balancing of the public’s interest and the individual’s right to personal security free from arbitrary interference by law officers. (People v. Smithers (1980), 83 Ill. 2d 430, 415 N.E.2d 327.) A trial court’s findings on a motion to suppress will not be reversed unless they were manifestly erroneous. People v. Bolar (1990), 205 Ill. App. 3d 597, 563 N.E.2d 1225.

In the instant case, the stop was not arbitrary and the facts buttress the reasonableness of the officers’ belief that an immediate stop was necessary. (See People v. Smithers (1980), 83 Ill. 2d 430, 415 N.E.2d 327.) A shooting had recently taken place. In the course of the police officers’ search for the shooting suspect, they spotted the defendant’s van driving away from the shooting suspect’s home. They recognized the defendant and knew he was the brother of the shooting suspect. The police also spotted another man in the defendant’s van who appeared to be trying to hide. Although we are bothered by the fact that the police officers never asked the defendant whether he knew where his brother was, given the facts of this case, we are unable to conclude that the trial court’s denial of the motion to suppress was manifestly erroneous.

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

Affirmed.

GORMAN and McCUSKEY, JJ., concur.