text:
    CARL MARSHALL, Adm’r of the Estate of Barry S. Marshall, Deceased, et al., Plaintiffs-Appellants, v. ELDAN A. OSBORN, Defendant-Appellee.
    Third District
    No. 3—90—0024
    Opinion filed April 25, 1991.

      Gomien, Root & Rigazio, of Morris (Mark W. Rigazio, of counsel), for appellants.
    James D. Grumley and Pamela E. Davis, both of Rooks, Pitts & Poust, of Joliet, for appellee.
   JUSTICE SLATER

delivered the opinion of the court:

On April 17, 1987, plaintiffs’ decedent Barry S. Marshall was killed when he was struck by an automobile driven by defendant Eldan A. Osborn. Plaintiffs filed suit pursuant to the Wrongful Death Act (Ill. Rev. Stat. 1987, ch. 70, pars. 1, 2) alleging various acts of negligence. Following a number of pretrial motions, which will be explained in more detail below, trial began on September 20, 1989. The evidence presented at trial was limited by application of the Dead Man’s Act ( Ill. Rev. Stat. 1987, ch. 110, par. 8—201), which prevented presentation of any event which took place in the decedent’s presence.

The evidence presented at trial showed that the defendant was driving east along Lorenzo Road at approximately 2 a.m. The weather was foggy and the accident occurred in a rural area in which there were no streetlights, sidewalks, crosswalks, businesses, or intersections. The posted speed limit was 55 miles per hour.

Police officers who investigated the accident testified to the damage sustained by the defendant’s car. The hood of the car on the driver’s side was dented and the fender on that side was heavily damaged and had been pushed back to the edge of the driver’s door. On the passenger side, the amber turn signal light was broken and there was a large dent where the roof of the car meets the windshield. The windshield on the passenger side was shattered inward, creating a large hole. Hairs were found in the windshield, on the chrome trim at the top of the windshield, and on the louvered rear windows.

The body of the decedent was found in the eastbound traffic lane of Lorenzo Road. All blood and body tissue were also found in the eastbound lane. Two pieces of fiberglass debris from defendant’s vehicle were found in the eastbound lane close to the center line. Amber glass shards were also found in the roadway east of the fiberglass debris. The decedent’s body was east of both areas of debris. No blood, body tissue, or debris was found in the westbound lane or on either the north or south shoulders of the road.

A car was found in a ditch on the south shoulder of the road facing west with its headlights on. The car was undamaged except for a cracked windshield which was not related to this incident. The car belonged to the decedent’s father and was driven by the decedent that night.

Pursuant to a request to admit facts, the defendant admitted that her car struck the decedent and caused his death. Defendant also admitted that at or about the time of the collision between her and the decedent, defendant’s car left the roadway approximately two feet.

Doctor Austin Gibbons, a pathologist, testified as an expert witness for defendant. Gibbons testified that the blood-alcohol level of the decedent was .320, which the witness characterized as “severely intoxicated.” According to Gibbons, a person at this level of intoxication would be extremely uncoordinated, staggering, and barely able to walk. In addition, such a person’s ability to perceive would be extremely impaired and his judgment would be greatly affected.

The jury returned a verdict in favor of the defendant. Plaintiffs’ post-trial motion was denied, and they raise the following issues on appeal: (1) whether the trial court erred in reversing a prior ruling on a motion in limine, thereby allowing defendant to present evidence of decedent’s intoxication; (2) whether the court, should have barred the testimony of defendant’s expert witness; (3) whether the trial court properly excluded evidence of defendant’s consumption of alcohol; and (4) whether the trial court erred in refusing to allow plaintiffs’ expert to testify to the speed of defendant’s vehicle. We affirm.

Plaintiffs first contend that the trial court improperly changed a ruling which had excluded any evidence of the decedent’s intoxication. Plaintiffs filed a motion in limine on April 18, 1988, prior to the completion of discovery and before a trial date had been set, which sought to exclude any evidence of decedent’s intoxication on the grounds that its prejudicial effect outweighed its probative value and that such evidence was irrelevant because there was nothing to indicate that intoxication contributed to the decedent’s death. In arguing the motion, plaintiffs’ counsel relied on the fact that no one, including defendant, had seen the decedent prior to the accident and thus there was “no evidence whatsoever of his position; meaning where he was standing, if he was standing, whether he was walking, moving, [or] what he was doing at the time of the collision.”

The court granted plaintiffs’ motion on June 22, 1988, prohibiting the defendant from making any reference to the decedent’s intoxication or consumption of alcohol. The judge who granted the motion was not the same judge who presided at the trial of this cause. The defendant’s motion to reconsider was denied on November 10, 1988.

Prior to selection of the jury on September 20, 1989, defendant made a motion to reconsider the ruling on the motion in limine. The trial judge refused to reconsider the ruling at that time, but he cautioned plaintiffs’ attorney that he would not be bound by the ruling of the previous judge if the evidence presented at trial warranted admission of decedent’s intoxication. After jury selection and prior to opening statements, plaintiffs’ attorney indicated that it would be unfair to. reconsider the ruling on the motion in limine at such a late date. The trial judge then asked plaintiffs’ attorney if he would like him to rule on the motion to reconsider at that time, and plaintiffs’ attorney said he did not. The judge then again warned plaintiffs’ counsel that if the evidence presented at trial indicated that the decedent’s intoxication was relevant he would admit it, and the judge again asked plaintiffs’ counsel if he would rather have a ruling at that time. Plaintiffs’ attorney responded that he did not want a ruling at that time.

After plaintiffs presented their case the defendant again asked the court to reconsider the motion in limine. The court reversed the earlier ruling, finding that evidence of decedent’s intoxication was material and relevant because all the evidence indicated that the decedent was in the eastbound traffic lane when he was struck by the defendant’s car. The judge told plaintiffs’ attorney that he would allow him to reopen his case to submit further evidence and that he would give plaintiffs’ counsel the weekend to consider it. Plaintiffs chose not to reopen their case.

Plaintiffs first contend that the trial court abused its discretion in reversing the ruling on the motion in limine after trial had begun because plaintiffs had relied on the earlier ruling in pretrial discovery and in preparing their case for trial. We disagree.

A ruling on a motion in limine is interlocutory in nature and is subject to reconsideration throughout trial as the evidence is fully developed (Ely v. National Super Markets, Inc. (1986), 149 Ill. App. 3d 752, 500 N.E.2d 120; Beasley v. Huffman Manufacturing Co. (1981), 97 Ill. App. 3d 1, 422 N.E.2d 241; see Towns v. Yellow Cab Co. (1978), 73 Ill. 2d 113, 382 N.E.2d 1217 (court is not bound by interlocutory orders of previous judge and has the power to correct erroneous orders)). In this case the initial ruling which barred evidence of intoxication was largely based on representations by plaintiffs’ attorney that there was no evidence of decedent’s location at the time of impact. The evidence presented at trial strongly implied, however, that the decedent was in defendant’s traffic lane when he was struck. Plaintiffs may not now complain that they were misled by a ruling which they induced the court to make. (See Crossman v. Curless (1988), 178 Ill. App. 3d 97, 532 N.E.2d 1110.) Moreover, the trial court made a conscientious effort to minimize any surprise or potential prejudice by offering to rule before plaintiffs presented their case and by offering them the opportunity to reopen their case after the ruling. We find no abuse of discretion.

Plaintiffs further contend that the trial court erred in admitting evidence of decedent’s intoxication because it was irrelevant and because its prejudicial effect outweighed its probative value. Plaintiffs argue that there must be a causal connection between decedent’s intoxication and some conduct which contributed to his death.

Evidence of a plaintiff’s intoxication is relevant to the extent that it affects the care that he takes for his own safety and is therefore admissible as a circumstance to be weighed by the trier of fact in its determination of the issue of due care. (Doria v. Costello (1974), 22 Ill. App. 3d 505, 318 N.E.2d 40; Patarozzi v. Prairie States Oil & Grease Co. (1966), 71 Ill. App. 2d 155, 218 N.E.2d 113.) Our supreme court explained the probative value of such evidence long ago:

“A person who voluntarily uses intoxicating drinks until he has become physically helpless, or his powers so far impaired that he is unable to exert the necessary effort to avoid danger, is guilty of negligence when he places himself in a position of danger; and so when he thus stupifies and deadens his intellectual powers, so that he is unable to foresee and guard against danger. It was, then, highly important for the jury to be possessed of all the facts tending to show his mental and physical condition. Otherwise their conclusions as to whether he exercised reasonable care, might be altogether erroneous.” Illinois Central R.R. Co. v. Cragin (1873), 71 Ill. 177, 181-82.

While evidence of intoxication is highly probative, it is also extremely prejudicial; therefore, more is required than evidence of alcohol consumption alone. (Sandburg-Schiller v. Rosello (1983), 119 Ill. App. 3d 318, 456 N.E.2d 192.) It must be shown that the intoxication resulted in an impairment of mental or physical abilities and a corresponding diminution in the ability to act with ordinary care. (Shore v. Turman (1965), 63 Ill. App. 2d 315, 210 N.E.2d 232.) The evidence must show “either directly or by reasonable inference, that the conduct of the individual at and before the accident was or may have been affected by the use of alcoholic beverages” (Shore, 63 Ill. App. 2d at 323, 210 N.E.2d at 236).

In this case the evidence shows that at the time decedent was struck by defendant’s car he was located on an unlighted roadway with a posted speed limit of 55 miles per hour in a rural area on a dark and foggy night. Defendant’s expert witness testified that the level of alcohol in decedent’s blood would have a profound effect on his perception, judgment, and physical abilities. Under the circumstances, we find that the trial court did not err in admitting evidence of decedent’s intoxication. See Cuellar v. Hout (1988), 168 Ill. App. 3d 416, 522 N.E.2d 322 (evidence of alcohol consumption supported by opinion testimony of intoxication was admissible).

Plaintiffs next contend that the trial court erred in allowing defendant’s expert witness to testify because defendant had not disclosed the witness pursuant to Supreme Court Rule 220 (134 Ill. 2d R. 220). Following the trial court’s reversal of the earlier ruling barring evidence of decedent’s intoxication, plaintiffs moved to bar the testimony of defendant’s expert, Doctor Gibbons, because he had not been disclosed. The trial court denied the motion, finding that any surprise to plaintiffs was minimized by the fact that Doctor Gibbons’ affidavit, setting forth his qualifications and opinions, was attached to defendant’s response to plaintiffs’ motion for summary judgment which was filed on November 9, 1988. The trial court also noted that the defendant was in a “Catch-22” situation, apparently referring to the fact that the ruling barring evidence of intoxication was entered before disclosure of experts was required under Rule 220 and remained in effect until trial. The trial judge gave plaintiffs’ attorney the opportunity to depose defendant’s expert over the weekend but counsel declined.

The imposition of sanctions for a violation of Supreme Court Rule 220 lies within the sound discretion of the trial court and will not be disturbed absent an abuse of discretion. (See Dietrich v. Jones (1988), 172 Ill. App. 3d 201, 526 N.E.2d 450.) Disqualification of an undisclosed expert is not the only sanction available to the court, and under some circumstances, allowing the offended party the opportunity to depose the expert may be an appropriate response. See Kosinski v. Inland, Steel Co. (1989), 192 Ill. App. 3d 1017, 549 N.E.2d 784.

In this case there was no question that defendant failed to disclose her expert witness. The affidavit attached to defendant’s response to plaintiffs’ motion for summary judgment is not a sufficient substitute for the disclosure required by Rule 220. (Cf. Scheibel v. Groeteka (1989), 183 Ill. App. 3d 120, 538 N.E.2d 1236.) We believe that ordinarily such a clear violation of Rule 220 would mandate disqualification of the witness. Under the unusual circumstances presented here, however, where the defendant had been barred from raising the subject matter of the expert’s testimony before disclosure was required, we find no abuse of discretion by the trial court in allowing the witness to testify (see Coleman v. Central Illinois Public Service Co. (1990), 207 Ill. App. 3d 96, 565 N.E.2d 274 (in unusual circumstances, fairness may require exception to disclosure requirements of Rule 220)). Furthermore, we note that Rule 220 requires disclosure “[w]here the testimony of experts is reasonably contemplated” (emphasis added) (134 Ill. 2d R. 220(b)(1)). Given the pretrial ruling barring evidence of intoxication, we believe that it was reasonable for defendant to assume her expert would not be allowed to testify and therefore his testimony was not “reasonably contemplated.” We caution counsel in future cases, however, that the better practice is to disclose all potential expert witnesses since the decision to bar an undisclosed witness rests with the trial judge.

Plaintiffs next maintain that the trial court erred in refusing to allow plaintiffs to present evidence of defendant’s consumption of alcohol. Specifically, plaintiffs sought to question defendant’s expert, Doctor Gibbons, regarding the effect on defendant of drinking four beers in a five-hour period. Defendant had admitted drinking four beers on the night of the accident in answer to plaintiffs’ interrogatories.

While evidence of intoxication affecting the physical or mental abilities of a party is generally admissible, mere consumption of alcohol is not unless it is supported by evidence of intoxication. (Wagner v. Zboncak (1982), 111 Ill. App. 3d 268, 443 N.E.2d 1085; Clay v. McCarthy (1979), 73 Ill. App. 3d 462, 392 N.E.2d 693; McCullough v. McTavish (1978), 62 Ill. App. 3d 1041, 379 N.E.2d 890; Ballard v. Jones (1974), 21 Ill. App. 3d 496, 316 N.E.2d 281.) While cross-examining Doctor Gibbons, plaintiffs’ attorney posed a hypothetical question in which Gibbons was asked to determine the blood-alcohol level of a person of defendant’s weight who consumed four beers over a five-hour period. Gibbons initially refused to answer, stating that due to differences in absorption and elimination rates and other factors it was “an impossible thing to predict with any degree of scientific accuracy.” After continued questioning, the following colloquy occurred:

“A. [Doctor Gibbons]: Well, *** the worst case put [her] at .115 if you were to take it all and inject it into that person at that time. Now, if you take instead and spread the absorption and the elimination over 5 hours, that person is never going to reach .115. It would be significantly lower than that.
Q. [Plaintiffs’ attorney]: What would it be?
A. I am guessing — half of that.
Q. Okay. Good. What would it be?
A. I have no idea.
Q. Half of that is?
A. .057 or less.”

After the witness was excused, plaintiffs’ attorney sought to subpoena Doctor Gibbons to have him testify to the blood-alcohol level of the defendant. Plaintiffs’ attorney made an offer of proof by questioning Doctor Gibbons outside the presence of the jury, a portion of which is related below:

“Q. Doctor, I asked you earlier, and gave you a certain scenario ***.
You testified, I believe, that under those conditions and consuming that alcohol at that rate that that person would have a worse [sic] casé scenario of a .115, and a best case scenario of .057.
A. No. I didn’t say a best case scenario was .057. I said half or less when you asked me what it would be like. You are dealing with an extremely hypothetical case where it could have been zero at that time.
Q. Do you have an opinion within your expertise as to what her blood alcohol level was at 2:00 a.m., the time of the collision, given the facts that I have given you concerning alcohol consumption and body weight?
A. There is no scientifically or forensically valid way which I can get that, other than by pure guess. There is no sound way. My opinion is I can’t testify to that with any degree of scientific certainty. It is impossible to tell you that.”

Further questioning produced additional responses from Doctor Gibbons, the substance of which was that any estimate of the defendant’s blood-alcohol level would be a guess lacking any degree of scientific certainty. The trial court refused to allow plaintiffs to introduce evidence of defendant’s consumption of alcohol.

In view of the lack of any supporting evidence of intoxication, the trial court properly excluded evidence of defendant’s alcohol consumption (see Wagner, 111 Ill. App. 3d 268, 443 N.E.2d 1085; McCullough, 62 Ill. App. 3d 1041, 379 N.E.2d 890). It is clear that Doctor Gibbons’ testimony that defendant’s alcohol level may have been .057 was mere speculation. An expert’s opinion cannot be based on conjecture or guess (Dyback v. Weber (1986), 114 Ill. 2d 232, 500 N.E.2d 8), and a medical expert’s opinion must be based on a reasonable degree of medical certainty (Collins v. Straka (1987), 164 Ill. App. 3d 355, 517 N.E.2d 1147). We find no error.

Finally, plaintiffs contend that the trial court erred in refusing to allow their expert witness to testify that defendant’s car was traveling 40 to 45 miles per hour at the time of impact. In answer to interrogatories submitted by defendant, plaintiffs stated that their expert, Eldan Lane, would testify that the defendant’s car “was traveling at a much greater rate of speed than 10-15 mph” at the time of collision. The day before trial, plaintiffs’ counsel informed defense counsel that Lane’s specific opinion was that defendant was traveling between 40 and 45 miles per hour. Plaintiffs’ attorney said that he had learned of this opinion on the previous day. Defendant filed a motion to limit Lane’s testimony to that which had been disclosed in the interrogatories. The trial court granted defendant’s motion, finding that allowing the undisclosed opinion would violate Rule 220.

Defendant also moved to bar any testimony by Lane on the basis that he was unqualified as an expert. Outside the presence of the jury, Lane testified regarding his qualifications to render an opinion on the speed of defendant’s vehicle based on damage to the car. Lane’s occupation at the time of trial was fabricating metal frames for storefront awnings. He had 35 years experience in body and fender work, including repairing damage from all types of collisions. He also stated that he was familiar with the type of car owned by the defendant, had repaired similar cars, and he was familiar with the strength of the metal used in the car. Lane also stated that he was not a high school graduate and he had no formal training in physics or engineering. The court found that Lane was “qualified as an expert on this question alone, *** [he] can only answer to the extent of [his] answer to the interrogatory.” Plaintiffs did not call Lane as a witness.

Plaintiffs argue that Lane’s opinion regarding the speed of defendant’s vehicle should have been admitted because it did not represent “an undisclosed shift in theory or belief” (134 Ill. 2d R. 220(c), Committee Comments, at 181; see Singh v. Air Illinois, Inc. (1988), 165 Ill. App. 3d 923, 520 N.E.2d 852). We agree that the undisclosed opinion did not represent a shift in theory. Plaintiffs’ argument ignores, however, Rule 220(d), which provides:

“To the extent that the facts known or opinions held by an expert have been developed in discovery proceedings through interrogatories, depositions or requests to produce, his direct testimony at trial may not be inconsistent with or go beyond the fair scope of the facts known or opinions disclosed in such discovery proceedings. However, he shall not be prevented from testifying as to facts or opinions on matters regarding which inquiry was not made in the discovery proceedings.” 134 Ill. 2d R. 220(d).

The purpose of Rule 220 is to allow litigants to ascertain and rely upon the opinions of experts retained by their adversaries (134 Ill. 2d R. 220(d), Committee Comments, at 182), and paragraph (d) limits the scope of an expert’s testimony to those opinions revealed in response to discovery (Bart v. Union Oil Co. (1989), 185 Ill. App. 3d 64, 540 N.E.2d 770). Plaintiffs maintain, however, that it was defendant’s failure to depose the witness which resulted in the nondisclosure of the expert’s additional opinion. It is clear, however, that Rule 220 “imposes upon the party retaining an expert witness the obligation to keep abreast of the opinions which may be expressed at trial” and “[cjourts should not view favorably the late disclosure of ‘new’ opinions” (134 Ill. 2d R. 220(c), Committee Comments, at 181).

The question then is whether Lane’s opinion that defendant was traveling 40 to 45 miles per hour was beyond the fair scope of his earlier disclosed opinion that defendant was traveling at a much greater rate of speed than 10 to 15 miles per hour. While there is no question that the former opinion is consistent with the latter, it is decidedly more specific, and the implications of such an opinion may be profoundly different from the more general and rather innocuous opinion expressed in the interrogatory. We believe, therefore, that the trial court did not err in finding that the tardily disclosed opinion was beyond the scope of the answer given to the interrogatory, and we find no abuse of discretion by the court in limiting the expert’s opinion. See Stringham v. United Parcel Service, Inc. (1989), 181 Ill. App. 3d 312, 536 N.E.2d 1292.

In addition, we find that the trial court did not err in finding that plaintiffs’ expert was qualified to testify only to his opinion that defendant was travelling in excess of 10 to 15 mile per hour. The determination of an expert’s qualifications is within the discretion of the trial court. (Bloomgren v. Fire Insurance Exchange (1987), 162 Ill. App. 3d 594, 517 N.E.2d 290.) While Lane had extensive experience in repairing damaged vehicles, he had no training or education in physics, engineering, or any other scientific discipline which would enable him to make a reasonably precise determination of the speed of defendant’s car (see Deaver v. Hickox (1967), 81 Ill. App. 2d 79, 224 N.E .2d 468 (expert opinion as to speed of vehicles usually requires scientific knowledge)).

Finally, we believe that even if the trial court had erred in excluding Lane’s opinion of the speed of defendant’s car, the result of the trial would not have been different had such testimony been presented. The posted speed limit on Lorezo Road was 55 miles per hour. While there was dense fog on the night of the collision, a police officer testified that he drove 45 miles per hour in the foggy conditions on his way to the scene of the accident and after leaving the scene. Under the circumstances, we deem it unlikely that the jury would have found for plaintiffs even if they believed that defendant was traveling 40 to 45 miles per hour.

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

Affirmed.

GORMAN and McCUSKEY, JJ., concur.


source: Caselaw Access Project

author: JUSTICE SLATER

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. DONOTA RAEBIG, Defendant-Appellee.
    Third District
    No. 3—90—0533
    Opinion filed May 10, 1991.

      Edward Burmila, Jr., State’s Attorney, of Joliet (Gary E Gnidovec, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Hubert E. Hermanek, Jr., of Chicago, for appellee.
   JUSTICE SLATER

delivered the opinion of the court:

The defendant, Donota Raebig, was involved in a two-vehicle accident on September 10, 1988, which resulted in death to the other driver. Traffic citations were issued charging the defendant with failure to yield at a stop sign (Ill. Rev. Stat. 1987, ch. 95½, par. 11—1204(b)) and failure to wear a seat belt (Ill. Rev. Stat. 1987, ch. 95½, par. 12—603.1(a)). The citations indicated that a fatality had occurred, but the issuing State Trooper did not mark the box requiring a court appearance as required by Supreme Court Rule 551(d) (134 Ill. 2d R. 551(d)). On October 13, 1988, Donota Raebig signed the guilty pleas on the back of the traffic citations and mailed them, along with the required fines and court costs, to the clerk of the circuit court of Will County. On January 4, 1989, a criminal complaint was filed charging the defendant, Donota Raebig, with reckless homicide (Ill. Rev. Stat. 1987, ch. 38, par. 9—3(a)); an indictment charging the same offense was filed on February 14, 1990. Defendant filed a motion to dismiss the indictment on the basis of double jeopardy. The trial court, relying on Grady v. Corbin (1990), 495 U.S. 508, 109 L. Ed. 2d 548, 110 S. Ct. 2084, granted her motion after the State advised the court that it could not prove the reckless homicide charge without introducing evidence of the stop sign violation. The State appeals from the dismissal of the indictment. We reverse and remand.

In Grady v. Corbin (1990), 495 U.S. 508, 109 L. Ed. 2d 548, 110 S. Ct. 2084, after defendant’s automobile was involved in a three-car accident on October 3, 1987, an assistant District Attorney was called to the scene of the accident. There, he learned that the driver and passenger in one of the other vehicles had been seriously injured. Later that evening, the assistant District Attorney was informed that the driver of the other vehicle had died from injuries sustained in the accident. That same evening, while being treated at the hospital for his own injuries, the defendant was issued uniform traffic tickets for driving while intoxicated and failing to keep right of the median. The tickets directed the defendant to appear in court on October 29,1987.

Three days later, a different assistant District Attorney began gathering evidence for a homicide prosecution. The second assistant District Attorney did not attempt to ascertain when the defendant was scheduled to appear in court nor did he inform either the court or the assistant District Attorney covering the court about the investigation. As a result, the assistant District Attorney covering the court never mentioned the death of the driver of the second vehicle in his statement of readiness for trial and other pretrial pleadings that he submitted to defendant and to the court. Thus, when defendant pled guilty to the two traffic tickets on October 27, 1987, a date on which no member of the District Attorney’s office was present in court, the presiding judge was not aware that a fatality had occurred. The judge accepted the guilty pleas, but because no sentencing recommendation had been submitted by the District Attorney’s office, sentencing was postponed.

When the case was eventually called for sentencing, a different assistant District Attorney was present. She was unable to locate the case file and was unaware that there had been a fatality. Nevertheless, she did not seek an adjournment but simply recommended a minimum sentence, which was imposed. Two months later, a grand jury-indicted defendant on charges of reckless manslaughter, second degree vehicular manslaughter, criminally negligent homicide, third degree reckless assault, and driving while intoxicated.

The New York Court of Appeals ruled that prosecution of the charges was prohibited by the double jeopardy clause of the fifth amendment because the bill of particulars filed by the State showed that it intended to rely on the traffic offenses to prove those charges. The United States Supreme Court affirmed, holding that the double jeopardy clause “bars a subsequent prosecution if, to establish an essential element of an offense charged in that prosecution, the government will prove conduct that constitutes an offense for which the defendant has already been prosecuted.” Grady, 495 U.S. at 510, 109 L. Ed. 2d at 557, 110 S. Ct. at 2087.

Prior to Grady, we would have found dismissal in this case to be improper because the statutory elements of reckless homicide and failure to yield at a stop sign are different and neither offense is a lesser included offense of the other. (See Harris v. Oklahoma (1977), 433 U.S. 682, 53 L. Ed. 2d 1054, 97 S. Ct. 2912; Blockburger v. United States (1932), 284 U.S. 299, 76 L. Ed. 306, 52 S. Ct. 180; People v. Jackson (1987), 118 Ill. 2d 179, 514 N.E.2d 983.) Now, however, because the State has indicated that it intends to rely on the defendant’s failure to yield at a stop sign to prove the charge of reckless homicide, it would appear that prosecution of the defendant in this case may be barred by Grady. The State argues that successive prosecutions are permissible when justified by the public interest in law enforcement and in the absence of prosecutorial overreaching. This case is distinguishable from Grady, the State contends, because here the prosecutor was not involved in charging or prosecuting the defendant. The State points to footnote three of the Grady opinion in support of its argument:

“The record does not indicate why the return dates for the traffic tickets were changed from October 29 to October 27. In any event, the District Attorney was not deprived of a meaningful opportunity to participate in this prosecution. If the District Attorney had wanted to prevent Corbin from pleading guilty to the traffic tickets so that the State could combine all charges into a single prosecution containing the later-charged felony counts, he could have availed himself of NY Crim Proc Law §170.20(2) (McKinney 1982) [requiring the court to grant an adjournment where the district attorney intends to seek an indictment].
Furthermore, the District Attorney’s participation in this prosecution amounted to more than a failure to move for an adjournment. ADA Glick filed papers indicating a readiness to proceed to trial, and Assistant District Attorney Heidi Sauter appeared at Corbin’s sentencing hearing on behalf of the People of the State of New York.” (Emphasis added.) Grady, 495 U.S. at 512 n.3, 109 L. Ed. 2d at 558 n.3, 110 S. Ct. at 2088 n.3.

We agree with the State that in this case, unlike Grady, the State was “deprived of a meaningful opportunity to participate” in the prosecution. The State Trooper’s error in failing to mark the traffic citation as a “must appear” prevented the State’s Attorney’s office from reviewing the charges and participating in the prosecution. This complete lack of involvement by the State’s Attorney’s office distinguishes this case from Grady and negates the defendant’s double jeopardy claim.

The double jeopardy clause prevents the State from making repeated attempts to convict a defendant, “thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity.” (Green v. United States (1957), 355 U.S. 184, 187-88, 2 L. Ed. 2d 199, 204, 78 S. Ct. 221, 223.) The State may not, through multiple prosecutions, rehearse its presentation of proof and hone its trial strategy, thus increasing the risk of an erroneous conviction. (Grady, 495 U.S. at 518, 109 L. Ed. 2d at 562, 110 S. Ct. at 2091-92.) We believe these concerns over successive prosecutions are largely alleviated when the initial “prosecution” consists solely of a traffic citation followed by payment of a fine by mail.

In this case, there has not been prosecutorial overreaching, nor has the State’s Attorney’s office had a realistic opportunity to participate in the prosecution. Defendant argues, however, that the investigating officer who issued the tickets was aware of the fatality and the circumstances of the accident and that the trooper, as a representative of the State, issued the traffic citations “without believing a reckless homicide occurred.” Whether or not the investigating officer believed the circumstances warranted a charge of reckless homicide is irrelevant, because initiation of a criminal prosecution and the choice of charges to be brought are functions within the exclusive discretion of the State’s Attorney (People v. Pankey (1983), 94 Ill. 2d 12, 445 N.E.2d 284).

The protection afforded by the double jeopardy clause is not' absolute, and “successive prosecution on a greater offense may be permitted where justified by the public interest in law enforcement and the absence of prosecutorial overreaching.” (Garrett v. United States (1985), 471 U.S. 773, 796, 85 L. Ed. 2d 764, 783, 105 S. Ct. 2407, 2420 (O’Connor, J., concurring).) We hold, therefore, that the public interest in law enforcement outweighs the very minimal “embarrassment, expense and ordeal” (Green, 355 U.S. at 187, 2 L. Ed. 2d at 204, 78 S. Ct. at 223) to which the defendant has been subjected here. Under the circumstances of this case, to find otherwise “would deny the State its right to one full and fair opportunity to convict those who have violated its laws” (Ohio v. Johnson (1984), 467 U.S. 493, 502, 81 L. Ed. 2d 425, 435, 104 S. Ct. 2536, 2542).

Because of our disposition of this cause, the defendant’s motion to strike certain arguments in the State’s reply brief, which was taken with the case, has been rendered moot. For the reasons stated above, the judgment of the circuit court is reversed and remanded for further proceedings consistent with this opinion.

Reversed and remanded.

McCUSKEY and HAASE, JJ., concur.


author: JUSTICE BARRY PRESIDING JUSTICE STOUDER,

text:
      In re MARRIAGE OF NEIL GORDON HAVENS, Petitioner and Counterrespondent-Appellee, and GEORGIA ANN HAVENS, Respondent and Counterpetitioner-Appellant.
    Third District
    No. 3—90—0383
    Opinion filed May 3, 1991.

      STOUDER, RJ., dissenting.
    Patricia A. Walton, of Lucie & Carper, of Macomb, for appellant.
    Walter D. Braud, of Braud/Warner, Ltd., of Rock Island, for appellee.
   JUSTICE BARRY

delivered the opinion of the court:

The respondent, Georgia Ann Havens, appeals the trial court’s order finding her in contempt for failing to return property to the petitioner, Neil Gordon Havens, as ordered. The court sentenced her to 30 days in the Fulton County jail.

The record reveals that the parties were divorced on November 21, 1988. Pursuant to the terms of the divorce judgment, Neil was to make three $5,000 payments to Georgia over a one-year period. Georgia was also to receive specified marital property. Neil was to receive the remainder of the property. Each of the parties subsequently filed petitions for rule to show cause, alleging that the other had failed to abide by the terms of the judgment.

Following a hearing on the petitions, Neil was found guilty of contempt and sentenced to 30 days in jail unless he purged himself by paying Georgia the $5,000 installment due at the time. Georgia was also found in contempt and sentenced to 30 days in jail unless she returned the items of personal property previously awarded to Neil.

Georgia then filed a petition for setoff, alleging that she had returned to Neil the items that were in her possession and requesting a setoff of the fair market value of the items she could not return against the $5,000 payment owed by Neil. Neil responded with a second petition for rule to show cause, alleging that Georgia had failed to comply with the court’s contempt order in that she had not returned all of the items and had not surrendered herself to the county jail. He noted that she had left the State and was residing in Georgia.

Following the hearing on these petitions, the trial judge entered a memorandum of judgment in which the court noted that Georgia had failed to appear because “she did not want to go to jail.” The court further noted that although she could have returned some of the items, she simply chose not to in order to spite her ex-husband. The court subsequently found that Georgia remained in contempt unless she paid Neil $11,497, which represented the replacement value of the items she had failed to return, plus $620 in attorney fees ordered by the court to be paid to Neil’s counsel and costs. It further ordered that $10,000 owed by Neil would be credited toward that amount.

Georgia asserts on appeal that she had evidence, including an expert witness, to present in support of her positions on the pending petitions, but that because of her failure to appear, the trial court refused to allow her attorney to present any evidence at the combined hearing on her petition for setoff and Neil’s petition to show cause. The court’s conduct of the hearing, she argues, violated her right to due process.

Initially, we note that the record on appeal does not contain a transcript of the hearing upon which Georgia bases her due process issue. As a general rule it is the burden of the appellant to present a complete record (87 Ill. 2d R. 323), and any doubts arising from an incomplete record must be resolved against the appellant. Teitlebaum v. Reliable Welding Co. (1982), 106 Ill. App. 3d 651, 435 N.E.2d 852.

The only reference provided in Georgia’s appellate brief for her assertion that the circuit court restricted her attorney from presenting evidence in support of her positions at that hearing is Georgia’s post-judgment motion for reconsideration. This pleading is no substitute for a report of proceedings. We find no support for Georgia’s allusion to an expert witness on hand for the hearing. The court’s memorandum of judgment simply states that Georgia did not contest Neil’s petition “by fail[ing] to appear.” The record on appeal contains no mention of an offer of proof or other evidentiary support for the due process argument.

Although neither the court’s memorandum nor its signed order of April 2, 1990, makes direct reference to Georgia’s petition for setoff, the order effectively granted the relief sought by Georgia to the extent that the value of the property not returned was $11,497. The court’s signed order of April 2 is prefaced by a recitation that the court “heard evidence, testimony and arguments of counsel and [was] fully advised in the premises.” The court’s recitation in the absence of record support for Georgia’s charge that she was denied an opportunity to present evidence leads us to presume that the court did not commit reversible error in its conduct of the hearing. Accordingly, we are constrained to conclude that Georgia’s due process argument must fail.

Georgia also argues that the trial court’s contempt order failed to provide her with a viable means by which to purge herself. Specifically, she argues that since she had returned those items in her possession, there was nothing else she could do to purge herself.

We find, however, that this was a matter Georgia should have brought before the court personally, rather than leaving the State. We further note that the second contempt order did in fact provide that Georgia could purge herself by paying the replacement value of items she could not return. We note, as indicated by the court, that she was not required to pay for the physical damage to the house. Accordingly, we find that the court’s contempt orders were reasonable when entered and left Georgia with a viable means of purging herself of contempt.

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

Affirmed.

GORMAN, J., concurs.

PRESIDING JUSTICE STOUDER,

dissenting:

Because I find Georgia Havens’ rights to due process were violated in the instant case, I dissent. In cases of indirect civil contempt a defendant is entitled to an evidentiary hearing on the contempt charge. (In re Estate of Shlensky (1977), 49 Ill. App. 3d 885, 364 N.E.2d 430.) At the same time, civil contempt proceedings do not require that a defendant be personally present. (Comet Casualty Co. v. Schneider (1981), 98 Ill. App. 3d 786, 424 N.E.2d 911.) Georgia appeared by her attorney. There was no question that she had submitted herself to the in personam jurisdiction of the court. Her attorney was allowed to cross-examine Neil Havens and yet he was not allowed to present evidence supportive of Georgia’s position.

While the trial court would not allow Georgia’s attorney to present evidence in support of her petition for setoff, the court eventually granted this very relief. The valuation of the property subject to setoff was determined based solely on Neil’s testimony. This is not a case of evidence preclusion. Rather it is a case of issue preclusion, since even the appellee admits that Georgia’s attorney while present in court was denied the right to have Georgia’s allegations considered, even if evidence had been available. Of course, once the court held that Georgia’s attorney had no standing to support her claim, no evidence was presented. The trial court’s position is aptly demonstrated by its memorandum, letter, order, and final order denying Georgia’s motion to reconsider.

I find the appellee’s reliance on In re Marriage of Marks (1981), 96 Ill. App. 3d 360, 420 N.E.2d 1184, most unpersuasive, in light of the fact that Neil had also been held in contempt in these proceedings. From the record it is easily gleaned that Georgia and Neil have been uncooperative and difficult in these proceedings. However, a trial court’s displeasure with a party’s actions is not grounds for denial of due process. Even a defendant in a criminal case, who has fled the jurisdiction and is not present in court, is entitled to have his defense presented.


text:
      In re MARRIAGE OF BARBARA J. DELLITT, Petitioner-Appellee, and JAMES W. DELLITT, Respondent-Appellant.
    Third District
    No. 3—90—0329
    Opinion filed May 3, 1991.

      STOUDER, P.J., dissenting.
    Lousberg, Kopp, Bonnett & Kutsunis, P.C., of Rock Island (Michael J. Weng, of counsel), for appellant.
    Robert Rillie, of Aledo, for appellee.
   JUSTICE BARRY

delivered the opinion of the court:

James Dellitt appeals from an order dismissing his petition to modify the judgment for dissolution of his marriage to Barbara Dellitt. James sought a reduction in the monthly maintenance payments of $1,000 which he was obliged to make pursuant to a separation agreement between the parties. The issue on appeal is whether the maintenance provision is modifiable.

After 18 years of marriage, James and Barbara obtained a judgment of dissolution of marriage on January 13, 1983. Barbara was awarded custody of the parties’ 14-year-old daughter, and both parents were granted joint custody of their 17-year-old son. The dissolution order approved a “Separation Agreement” entered into by the parties on the same date, and the court made an express finding that the agreement is fair and equitable and not unconscionable. The agreement was not incorporated into the judgment, and the judgment stated:

“The contractual obligations of the parties as defined in the foregoing Separation Agreement shall continue to exist after the entry of this Judgment of Dissolution of Marriage.”

The separation agreement provided that James would pay to Barbara “family support” in the sum of $1,667.67 each month, with the payment to be reduced by $333.37 as each child reached majority age. Then James would pay $l,000-per-month maintenance to Barbara until her death or remarriage. (Both children are now adults.) The agreement also provided for the division of the marital property owned by James and Barbara, including several parcels of real estate, common stock in Dellitt Trucking, Inc., several vehicles, life insurance policies, and household goods. In his petition to modify the judgment, James seeks to reduce his payments to Barbara for reason of changes in his circumstances which allegedly make him unable to pay $1,000 per month.

The trial court dismissed the petition to modify upon a finding that the separation agreement was not modifiable since it was not incorporated into the judgment of dissolution. James has perfected this appeal.

James contends that a provision for maintenance contained in a judgment of dissolution can be modified under section 510 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1987, ch. 40, par. 510), which states:

“(a) Except as otherwise provided in paragraph (f) of Section 502 ***, the provisions of any judgment respecting maintenance or support may be modified only as to installments accruing subsequent to due notice by the moving party of the filing of a motion for modification and only upon a showing of a substantial change in circumstances.”

Section 502(f) of the Act provides:

“Except for terms concerning the support, custody or visitation of children, the judgment may expressly preclude or limit modification of terms set forth in the judgment if the separation agreement so provides. Otherwise, terms of an agreement set forth in the judgment are automatically modified by modification of the judgment.” Ill. Rev. Stat. 1987, ch. 40, par. 502(f).

James argues that, while the separation agreement was not set forth in the judgment, an approval of the agreement was contained in the judgment which should make the agreement subject to modification under authority of these statutory provisions. To state this argument another way, in the event circumstances change, the court could withdraw its previous approval of the original agreement and order modification of its terms.

This construction would eliminate any distinction between a separation agreement incorporated into the judgment and one which is not so incorporated. Furthermore, James’ position would nullify the express language of the order that the contractual obligations of the parties set forth in the separation agreement would continue to exist. Here, the trial court found that, at the time of the judgment of dissolution of marriage, the parties intended that their agreement continue as a contract, not as a part of the judgment, thereby limiting the available enforcement procedures. Only contract remedies can be sought.

In addition to the express language of the judgment of dissolution, this finding of the trial court is supported by testimony received during the dissolution hearing. Barbara testified that she understood the separation agreement was not being incorporated into the judgment and that it would “remain a contractual obligation.” Her testimony was uncontradicted.

There is nothing in the record to indicate that the parties intended anything other than to settle their financial affairs by contractual agreement separate from the court proceedings. Their agreement was subject to approval by the court, but court approval did not change the contractual nature of the obligations undertaken.

James also contends that the language contained in the separation agreement did not expressly preclude modification. He relies upon In re Marriage of Chalkley (1981), 99 Ill. App. 3d 478, 426 N.E.2d 237, where the court required an express declaration of an intent to limit or preclude future modification. (See also In re Support of Bowman (1980), 89 Ill. App. 3d 110, 411 N.E.2d 567.) However, Chalkley and Bowman both involved settlement agreements which had been expressly incorporated into judgments of dissolution. Those cases come within section 502(f), concerning nonmodifiability of the terms of a judgment of dissolution which has incorporated by reference the terms of the settlement. Such is not the situation here where the agreement was not incorporated into the judgment.

Although there have been no cases deciding the precise questions presented here, the following commentary is relevant:

“An agreement which is not set forth in the judgment ‘unless its terms expressly so permit, will not be modifiable as to economic matters ... [but] subjects relating to ... children ... do not bind the Court.’ ” (Emphasis added.) (Ill. Ann. Stat., ch. 40, par. 502(d), Historical and Practice Notes, at 402 (Smith-Hurd 1980), quoting 9A U.L.A. §306, Commissioners’ Note at 138 (1988).)

We note that the Illinois Supreme Court has found such comments helpful in interpreting section 502. See In re Marriage of Sutton (1990), 136 Ill. 2d 441, 557 N.E.2d 869.

The case before us involves contract law, not section 502(f) of the Illinois Marriage and Dissolution of Marriage Act, and the terms of the settlement agreement entered into by the parties may not be modified except by agreement of both parties. The trial court correctly ruled that the agreement is not modifiable upon a showing of changed circumstances.

While we conclude that a distinction exists between the legal consequence of incorporating a separation agreement into a judgment of dissolution and not doing so, we question whether such a distinction is necessary or wise. We suggest that the legislature consider whether the present rule should continue.

For the reasons stated, the order of dismissal is affirmed.

Affirmed.

SLATER, J., concurs.

PRESIDING JUSTICE STOUDER,

dissenting:

The issue before this court appears to be one of first impression: namely, whether the maintenance provision found in a separation agreement which was approved by the trial court in a dissolution proceeding, but not incorporated into the judgment, may subsequently be subject to modification by the trial court on motion of one of the parties. I agree with the majority that the cases cited by the parties are inapposite to the issue presented. However, I would hold that provisions contained in an unincorporated separation agreement are modifiable, and reverse the judgment in the instant case.

I find no reason exists to hold that modifiability should be determined by the fact that the agreement has or has not been incorporated into the judgment. The parties are required to obtain court approval of their agreement. (See Ill. Rev. Stat. 1989, ch. 40, par. 502(b).) That approval suggests that provisions such as maintenance are modifiable by the court. The parties are not free to independently agree that maintenance provisions contained in their separation agreement are not under the eye of the court when it reviews and approves the agreement. I find no authority for departing from the general rule that issues of support and maintenance are always subject to the continued oversight of the trial court.


text:
      In re ESTATE OF ESTHER O’HANDLEN, Deceased (Deeann Bradford Krieg, et al., Appellants, v. Metta O’Handlen Richert, Appellee).
    Third District
    No. 3—90—0558
    Opinion filed April 19, 1991.
    William E. Holdridge and Spencer Lee Daniels, both of Peoria, for appellants.
    James M. Tomlin, of Peoria, for appellee.
   JUSTICE SLATER

delivered the opinion of the court:

Craton O’Handlen was married twice, to Matte Karr and to Lena Brewer. Offspring were produced from both unions. Esther O’Handlen, a grandchild of Craton and Lena, died intestate and it is the distribution of her estate which is in question. The descendants of Craton and Matte, who are related by half blood to the decedent, object to the distribution of the intestate estate. They contend that the trial court erred by creating two moieties for distribution of the estate, one for descendants of the Craton/Matte union and one for the descendants of the the Craton/Lena union. We affirm.

The record shows that Esther O’Handlen died intestate in 1988. She left no surviving spouse, descendant, parent, brother, sister, or descendant of a brother or sister. Her only living relatives were the descendants of her paternal and maternal grandparents. The parties to this case are the only heirs of the paternal grandparents and at issue is the distribution of the paternal half of the estate. The relationship between the parties to this appeal is as follows:

The decedent’s property was to be distributed under the Probate Act of 1975 (Ill. Rev. Stat. 1989, ch. 110½, par. 1—1 et seq.), which states as follows:

“If there is no surviving spouse, descendant, parent, brother, sister or descendant of a brother or sister of the decedent but a grandparent or descendant of a grandparent of the decedent: *** V2 of the entire estate [goes] to the decedent’s paternal grandparents in equal parts or to the survivor of them, or if there is none surviving, to their descendants per stirpes. ***
* * *
In no case is there any distinction between the kindred of the whole and the half blood.” Ill. Rev. Stat. 1989, ch. 110½a, pars. 2—1(e), (h).

In the trial court, Metta moved for distribution of the property passing to the heirs of the paternal grandparents. She contended that the property should be divided into two moieties. One moiety was to pass completely to her through the paternal grandmother, and the second was to pass through the paternal grandfather to then be divided among herself and the other heirs per stirpes. She concluded that the heirs should receive the following fractions of the total estate: xk to Metta; 1/i2 to Deeann Kreig; V24 to Corinne Frazier; V48 to Corinne Soderberg; and V48 to Thomas O’Handlen.

The appellants objected, contending that the proposed distribution improperly drew a distinction between kindred of the whole blood and kindred of the half blood. They also argued that the statute only required that the property be divided into two moieties if both paternal grandparents had survived the intestate. In the appellants’ view, all of the children of the paternal grandfather were entitled to equal shares. They therefore concluded that the heirs should receive the following fractions of the total estate: 1/e to Metta; 1k to Deeann Kreig; Viz to Corinne Frazier; V24 to Corinne Soderberg; and V24 to Thomas O’Handlen.

The trial judge granted Metta’s motion and . divided the estate as she suggested. On appeal, the appellants argue that the court erred.

We agree with the trial court’s decision. In Illinois, the right to inherit property is controlled by statute. (Eckland v. Jankowski (1950), 407 Ill. 263, 95 N.E.2d 342.) Here, the statute provides that if the paternal grandparents do not survive the decedent, the property should pass per stirpes to their descendants. Since Metta was related to both paternal grandparents, she should inherit through each of them. Such a distribution does not violate the prohibition against favoring kindred of the whole blood over those of the half blood. That prohibition was not meant to create a new class of heirs, but only to prohibit discrimination within a class. (In re Estate of Paus (1944), 324 Ill. App. 58, 57 N.E.2d 212.) Since the appellants belong only to the class of those inheriting through the grandfather and they have received the proper share for those in that class, their rights have not been violated.

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

Affirmed.

BARRY and GORMAN, JJ., concur.


author: JUSTICE GORMAN JUSTICE BARRY,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SHAWN MASON, Defendant-Appellant.
    Third District
    No. 3—90—0226
    Opinion filed May 9, 1991.

      BARRY, J., dissenting.
    Dan W. Evers, of State Appellate Defender’s Office, of Mount Vernon, for appellant.
    Edward Burmila, Jr., State’s Attorney, of Joliet (Terry A. Mertel, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GORMAN

delivered the opinion of the court:

The trial court convicted the defendant, Shawn Mason, of unlawful possession of a controlled substance with the intent to deliver (Ill. Rev. Stat. 1989, ch. 56½, par. 1401(a)(2)), and sentenced him to six years’ imprisonment. The defendant appeals. We reverse.

On March 27, 1990, Will County sheriff’s deputies Theresa Laurino and John Grabinski were dispatched to investigate a disturbance at the Shakes N’ Stuff restaurant in Joliet. Deputy Laurino testified that when they arrived at the scene, Mrs. Helen Gholston informed her that she had seen three men in possession of her rental car without her permission.

Mrs. Gholston told the officer that while waiting at the restaurant for a friend, she saw the car she had rented a few days earlier enter the parking lot with three strangers inside. She explained that she had given her husband permission to use the car that day and that the last time she had seen the car it was parked outside her home. Although Mrs. Gholston acknowledged that her husband might have given the men permission to use the car, she believed it had been stolen.

Deputy Grabinski testified that the three men in the car were the defendant, who had been driving the car, Adrian Johnson, and Charles Collins. The defendant told Grabinski that he had borrowed the car from a man he knew as “Ghost,” but could not give “Ghost’s” first or last name. At that point, the deputies attempted to contact Mr. Gholston to determine if he had given the defendant permission to use the car, but were unable to do so because his line was busy. They continued trying to contact him for about 10 to 15 minutes after that.

Grabinski testified that when the three men got out of the car, Johnson was carrying a leather coat over his arm. Deputy Grabinski observed Johnson milling around the parking lot with the jacket and then saw him drop it behind the vehicle. When he asked Johnson if he was going to pick up the jacket, Johnson replied that it did not belong to him. Grabinski stated that based upon the information from Mrs. Gholston and the fact that the defendant could not provide any concrete information regarding the name of the man who had lent him the car, the three men were arrested for unlawful possession of a stolen vehicle and subsequently searched.

The defendant was subsequently searched and three telephone beepers were found on his person. Collins had $2,596 in currency and a cellular telephone. Inside the jacket dropped by Johnson, Grabinski found a plastic bag containing several individually wrapped bags of white powder and a crystalline substance later found to be cocaine. A bag containing a leafy, green, plant-like material was also found. Shortly after the search, Mr. Gholston was contacted, and he confirmed that he had given the defendant permission to use the car. The men were subsequently charged with unlawful possession of a controlled substance with the intent to deliver.

Sergeant Martin Shifflet, testifying as an expert in narcotics trafficking, stated that beepers are commonly used by drug traffickers. He noted that a drug trafficker will usually have about $2,500 in cash on his person from drugs he has just sold or to make change if necessary for future purchases. Moreover, Shifflet stated that dealers commonly package the drugs in the tip of a plastic baggie in quantities ranging from a quarter of a gram to a gram.

Collins, who had previously pled guilty to the offense, testified that earlier that day the defendant and Johnson had picked him up to take him to the repair shop to get his car. He noted that the repairs totaled $2,700 and that before leaving the house he had “grabbed” the money he had there, which was about $2,500. Collins further testified that he had also taken his telephone beepers, a jacket, and a cellular telephone with him. He explained that when they were confronted by the police in the parking lot, the defendant told him to get everything out of the car. Johnson took the jacket and the defendant took the beepers. Collins testified that the defendant had no knowledge of the drugs.

The court found the defendant guilty and sentenced him to six years’ imprisonment. The defendant now appeals, raising two issues for our consideration. Initially, the defendant contends that the trial court erred in denying his motion to suppress evidence from an illegal search.

Prior to trial, the defendant moved to quash his arrest and suppress certain evidence on the ground that there was no probable cause for his arrest and the subsequent search. The trial court found that the officers had probable cause to make the arrest and denied the motion.

An officer has probable cause to arrest where he has knowledge of facts that would lead a reasonable man to conclude that a crime has occurred and that it has been committed by the arrestee. (People v. Eddmonds (1984), 101 Ill. 2d 44, 461 N.E.2d 347.) If a lawful arrest has been made, the officer may search the arrestee and the area within his immediate presence in order to protect himself and discover any fruits of the crime. (Ill. Rev. Stat. 1989, ch. 38, par. 108 — 1.) The trial court’s findings on a motion to suppress will not be reversed unless they were manifestly erroneous. People v. Conner (1979), 78 Ill. 2d 525, 401 N.E.2d 513.

The record shows that a private citizen informed the officers that a car she had rented was in the possession of three men she did not know. She further stated that she had not given them authority to use the car and that her husband did not have the authority to loan the car to anyone. A license check of the car revealed that it was owned by a rental agency. Additionally, the men acted nervous, the defendant could not give the full name of the man who had loaned them the car, and one of the passengers attempted to dispose of his jacket. Based on the foregoing facts, we find that the trial court’s determination that probable cause existed for the arrest was not manifestly erroneous. We therefore affirm the denial of the motion to quash arrest and suppress evidence.

The defendant next contends that he was not proven guilty beyond a reasonable doubt of unlawful possession with the intent to deliver.

When examining the sufficiency of the evidence, a reviewing court will not retry the defendant. Rather, the relevant question is whether after viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267.) To support a charge of unlawful possession of a controlled substance, the State must prove not only that the defendant had knowledge of the presence of the controlled substance, but also that the controlled substance was in the immediate and exclusive control of the accused. People v. Galloway (1963), 28 Ill. 2d 355, 192 N.E.2d 370.

Knowledge of the accused may be shown by evidence of his acts, declarations, or conduct from which the inference may be fairly drawn that he knew of the existence of the controlled substance at the place where it was found. (People v. Ortiz (1980), 91 Ill. App. 3d 466, 414 N.E.2d 1072.) Possession may be either physical or constructive. Constructive possession exists where there is an intent and a capability to maintain control and dominion over the narcotics and may be proved by showing that the defendant controlled the premises where the narcotics were found. People v. Morrison (1988), 178 Ill. App. 3d 76, 532 N.E.2d 1077.

In the instant case, the evidence showed that the drugs were found in a jacket taken out of the car by Johnson and later dropped by him. Collins pled guilty, acknowledged the jacket, phone, beeper, and drugs were his and that the defendant had no knowledge of any drugs. There was no evidence presented to show that the jacket belonged to the defendant or that he had possession of the jacket, let alone the drugs, at any time. The only things found in the defendant’s possession were three beepers, possession of which is not unlawful. Based upon the evidence presented, we conclude that the State failed to show that the defendant had exclusive and immediate control of the drugs at any time. Accordingly, the State did not prove him guilty beyond a reasonable doubt of unlawful possession of a controlled substance with the intent to deliver.

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

Reversed.

STOUDER, P.J., concurs.

JUSTICE BARRY,

dissenting:

In my view the evidence was sufficient to support defendant’s conviction for unlawful possession of a controlled substance with the intent to deliver, and on that basis, I dissent.

This is a case where actual physical possession cannot be demonstrated and, therefore, where constructive possession must be established in order to convict defendant of the crime charged. Constructive possession has been held to exist where there is an intent and capability to maintain control and dominion over the narcotics in question, and such constructive possession may be proved by showing that defendant controlled the premises where the narcotics were found. (People v. Morrison (1988), 178 Ill. App. 3d 76, 532 N.E.2d 1077.) Constructive possession may be established where the defendant is the driver of a vehicle in which drugs were found, even if there is a passenger in the vehicle, if defendant has knowledge and control over what happens in the interior of the vehicle. (People v. McNeely (1981), 99 Ill. App. 3d 1021, 426 N.E.2d 296.) Whether there is possession and knowledge are questions of fact to be determined by the trial judge, and as is true of all factual determinations, his findings will not be disturbed on review unless the evidence is so palpably contrary to the findings or so unreasonable, improbable or unsatisfactory as to create a reasonable doubt of guilt. People v. Gallagher (1990), 193 Ill. App. 3d 566, 550 N.E.2d 255.

My colleagues have, in my opinion, substituted their judgment for that of the trial judge and in doing so, have rejected certain relevant evidence which must be considered. It is not for the reviewing court to decide the credibility of the witnesses, but rather to view the evidence in the light most favorable to the prosecution. People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267.

Here the trial judge heard one of the men arrested with defendant, Charles Collins, testify that he was a drug dealer, that the jacket, pagers, telephone, and drugs were his and that defendant had no knowledge of the presence of cocaine in the jacket. Defendant did, however, have knowledge of the pagers which he himself removed from the car, and the jacket, telephone and money which Collins displayed. One of the arresting officers testified that Adrian Johnson, the third codefendant, told him that the jacket was not his and that the jacket was already in the car before the three men entered the car. It was not disputed that defendant instructed Johnson and Collins to remove their property from the car and that Johnson took the jacket with him and then discarded it on the ground.

The trial judge could have reasonably decided not to believe Collins’ statement that the jacket and cocaine were his and that defendant did not know what was in the jacket. Defendant could reasonably be found to have known what the jacket contained.

The totality of the circumstances here could properly be found to establish beyond a reasonable doubt that the defendant was engaged in a common scheme with Collins and Johnson to sell the cocaine which defendant had transported within the car he had been driving, and that the three men planned to utilize the pagers he was carrying together with the cellular phone and money carried by Collins for the transaction of drug sales. (According to the evidence, drug dealers often carry cash in order to make change.) Lastly, defendant was plainly in charge of the automobile he was driving, and, therefore, the trial court correctly concluded that defendant was in control of the premises where the cocaine had been located just prior to the discovery of it.

I would affirm defendant’s conviction.


author: PRESIDING JUSTICE STOUDER

text:
    ROBERT D. SCHACHT, JR., et al., on Their Own Behalf and as Representatives of all Others Similarly Situated, Plaintiffs-Appellants, v. CATERPILLAR, INC., Defendant-Appellee.—JIMMEY D. GARRY, Plaintiff-Appellant, v. CATERPILLAR, INC., Defendant-Appellee.—CHARLES E. BINKLEY et al., Plaintiffs-Appellants, v. CATERPILLAR, INC., Defendant-Appellee.—CHARLES E. BINKLEY et al., Plaintiffs-Appellants, v. CATERPILLAR, INC., Defendant-Appellee.— WILLIAM WARDEN et al., Plaintiffs-Appellants, v. CATERPILLAR, INC., Defendant-Appellee.
    Third District
    Nos. 3—90—0431, 3—90—0466, 3—90—0659, 3—90—0668, 3—90—0669 cons.
    Opinion filed May 20, 1991.

      Gary L. Cline, of Londrigan, Potter & Randle, P.C., of Springfield (Michael D. Gifford, Alexandra de Saint Phalle, and Diane E. Greanias, of counsel), for appellants Robert D. Schacht, Jr., Barry W. Hansis, Roger D. Hoffman, and Patty Mikels.
    Diane E. Greanias and Andrew J. Kleczek, of Kelley & Kleczek, both of Peoria, for appellants Charles E. Binkley, William Warden, Bruce Osgood, Candace Tolley, and William Trotter.
    Michael D. Gifford, of Rochford & Associates, of Peoria, for appellant Jimmey D. Garry.
    Theodore R. Johnson, of Caterpillar Tractor Company, of Peoria, and J. Stephen Poor, of Seyfarth, Shaw, Fairweather & Geraldson, of Chicago (Michael A. Warner, of counsel), for appellee.
   PRESIDING JUSTICE STOUDER

delivered the opinion of the court:

These consolidated appeals involve five separate actions brought against the defendant, Caterpillar, Inc., for alleged violations of the terms of certain “Apprenticeship Agreements.” The plaintiffs are former and present employees of Caterpillar. In each of the actions, the trial court granted summary judgment for Caterpillar, finding, inter alia, that the plaintiffs’ claims were preempted under section 301(a) of the Labor Management Relations Act of 1947 (LMRA) (29 U.S.C. § 185(a) (1988)). The plaintiffs appeal from those judgments, and we affirm.

Although the procedural history of these cases are rather complex, they present this court with a single issue, whether the trial court properly determined that the plaintiffs’ State-law contract claims were preempted under section 301(a) of the LMRA,

At various times in the late 1970’s and early 1980’s, the plaintiffs held positions as apprentices with Caterpillar. The terms of these apprenticeships were set forth in a standardized apprenticeship agreement entered into between each individual employee and Caterpillar. Among the provisions, the agreements provided for the grounds upon which the apprenticeships would be terminated. At all times relevant, the plaintiffs were members of one of three unions which represent employees at Caterpillar facilities. Because of economic difficulties experienced by Caterpillar in the early 1980’s, Caterpillar laid off the plaintiffs pursuant to the layoff and seniority provisions of the applicable collective-bargaining agreement covering each plaintiff.

On March 20, 1985, 17 laid-off employees of Caterpillar filed an action in the circuit court of Peoria County. In their complaint, the plaintiffs alleged breach of contract on the part of Caterpillar for its failure to continue their employment and training pursuant to the written apprenticeship agreements. This action was designated Binkley et al. v. Caterpillar and is referred to as Binkley I by the parties.

Caterpillar attempted to remove the action to the United States District Court, contending the plaintiffs’ actions were preempted by section 301(a). Caterpillar also filed a motion to dismiss the plaintiffs’ claims. On September 26, 1985, the Federal district court denied Caterpillar’s request for removal and remanded the actions of 14 of the plaintiffs to the Illinois circuit court. The court found that those plaintiffs who left the apprenticeship program prior to the effective date of the 1983 collective-bargaining agreement had individual employment contracts, and thus, State causes of action. The court held that their claims were not preempted by section 301(a).

The district court dismissed the claims of three of the plaintiffs, including plaintiff Charles Binkley. The court found that these plaintiffs’ apprenticeship agreements were merged into the 1983 collective-bargaining agreement. These three plaintiffs later refiled their action in the circuit court alleging the same breach of contract claims. This action is referred to as Binkley II.

Plaintiffs William Warden and Bruce Osgood filed complaints against Caterpillar on August 9, 1986. This action is referred to as Warden. Binkley I, Binkley II and Warden were consolidated for discovery purposes by the trial court.

Meanwhile, four plaintiffs filed a complaint against Caterpillar on February 26, 1986. Eventually, this action was certified as a class action and will be referred to as Schacht.

Plaintiff Jimmey Garry filed a complaint against Caterpillar on December 11, 1989, and this case will be referred to as Garry.

On January 19, 1990, the Schacht plaintiffs filed a motion for judgment on the pleadings. On April 30, 1990, the plaintiffs in Binkley I, Binkley II and Warden filed motions for summary judgment. Caterpillar filed motions for summary judgment in all five causes of action, including Garry. In the motions for summary judgment, Caterpillar argued that the plaintiffs’ causes of action were preempted under section 301(a) of the LMRA. In addition, Caterpillar maintained that the actions were also preempted under the National Labor Relations Act.

On May 30, 1990, without comment Judge Courson granted Caterpillar’s motion for summary judgment in the Garry case. On June 6, 1990, Judge McDade entered an order denying the Schacht plaintiffs’ motion for judgment on the pleadings and granting Caterpillar’s motion for summary judgment. The trial court found, inter alia, that because resolution of plaintiffs’ claims depended on interpretation of the applicable collective-bargaining agreement’s provisions for lay off and seniority, plaintiffs’ claims were preempted by section 301(a). Based on his findings and decision in the Schacht case, Judge McDade granted Caterpillar’s motions for summary judgment in Binkley I, Binkley II and Warden on August 31, 1990. As initially indicated, these five cases were consolidated for purposes of this appeal.

On appeal, the plaintiffs contend the trial court erred in finding that their claims were preempted under section 301(a).

Section 301(a) provides: “Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this [Act], or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect of the amount in controversy or without regard to the citizenship of the parties.” 29 U.S.C. § 185(a) (1988).

Recently, the United States Supreme Court succinctly stated its section 301 jurisprudence:

“Over 30 years ago, this Court held that §301 not only provides the federal courts with jurisdiction over controversies involving collective-bargaining agreements but also authorizes the courts to fashion ‘a body of federal law for the enforcement of these collective bargaining agreements.’ [Citation.] Since then, the Court has made clear that §301 is a potent source of federal labor law, for though state courts have concurrent jurisdiction over controversies involving collective-bargaining agreements [citation], state courts must apply federal law in deciding those claims [citation], and indeed any state-law cause of action for violation of collective-bargaining agreements is entirely displaced by federal law under §301 [citation]. State law is thus ‘pre-empted’ by §301 in that only the federal law fashioned by the courts under §301 governs the interpretation and application of collective-bargaining agreements.” United Steelworkers of America v. Rawson (1990), 495 U.S. 362, 368, 109 L. Ed. 2d 362, 372-73, 110 S. Ct. 1904, 1909.

In Allis-Chalmers Corp. v. Lueck (1985), 471 U.S. 202, 85 L. Ed. 2d 206, 105 S. Ct. 1904, the Supreme Court held that when resolution of a State-law claim is substantially dependent upon analysis of the terms of a collective-bargaining agreement, that claim must either be treated as a section 301 claim or dismissed as preempted by Federal labor-contract law.

The plaintiffs contend that their breach of contract actions are based solely on the alleged breach of the apprenticeship agreements, and that resolution of their claims does not require interpretation of the applicable collective-bargaining agreement. The plaintiffs assert that the apprenticeship agreements did not provide for the termination of the apprenticeships based on economic reasons.

The plaintiffs cite Caterpillar, Inc. v. Williams (1987), 482 U.S. 386, 96 L. Ed. 2d 318, 107 S. Ct. 2425, and the earlier decision of the district court in Binkley I to support their argument that Caterpillar’s preemption defense has been rejected. We note, however, that the issue in both cases was removal jurisdiction, not the substantive merits of a preemption defense. We also note that the district court’s decision was issued prior to Williams.

The plaintiffs also cite as support for their assertion the decision of another Federal district court in collateral proceedings arising out of the same controversy. (Order entered August 6, 1987, in Jones et al. v. Caterpillar, No. 86—3047.) The district court in that case also held that the action was not properly removable.

The plaintiffs misconstrue the scope of the decision in Williams. In Williams, the plaintiffs alleged that Caterpillar had breached individual contracts, and filed a complaint in State court. Caterpillar attempted to remove the action to the Federal court by alleging the cause of action was preempted by section 301. The Supreme Court found that the action could not be removed because the plaintiffs’ claims, standing alone, did not arise under Federal law. The Court reiterated “that a case may not be removed to federal court on the basis of a federal defense, including the defense of pre-emption, even if the defense is anticipated in the plaintiff’s complaint, and even if both parties concede that the federal defense is the only question truly at issue.” (Emphasis in original.) (Williams, 482 U.S. at 393, 96 L. Ed. 2d at 327, 107 S. Ct. at 2430.) Absent diversity, the determination that jurisdiction is based on a Federal question is governed by the well-pleaded complaint rule, under which the Federal question must be presented on the face of the plaintiff’s properly pleaded complaint. Williams, 482 U.S. 386, 96 L. Ed. 2d 318, 107 S. Ct. 2425.

After finding that the plaintiffs’ complaint did not state a Federal claim on its face, the Williams court stated, “It is true that when a defense to a state claim is based on the terms of a collective-bargaining agreement, the state court will have to interpret that agreement to decide whether the state claim survives. But the presence of a federal question, even a section 301 question, in a defensive argument does not overcome the paramount policies embodied in the well-pleaded complaint rule — that the plaintiff is the master of the complaint, that a federal question must appear on the face of the complaint, and that the plaintiff may, by eschewing claims based on federal law, choose to have the cause heard in state court.” Williams, 482 U.S. at 398-99, 96 L. Ed. 2d at 331, 107 S. Ct. at 2433.

While a cause of action may not be removable based on a section 301(a) preemption defense, that does not mean that the cause of action is not preempted under section 301(a). Thus the only question before the Court in Williams, and before the district court in Binkley I, was whether removal jurisdiction existed. Any discussion of the merits of Caterpillar’s preemption defense by the district court is dicta. On the other hand, in the instant cases, we are now presented with the substantive merits of Caterpillar’s preemption defense. We must determine whether the trial courts below correctly found that the resolution of the plaintiffs’ State-law contract claims are substantially dependent upon analysis of the applicable collective-bargaining agreement.

The plaintiffs allege that the termination of their participation in the Caterpillar apprenticeship program was in violation of the terms of the apprenticeship agreements. They contend their action is based solely on breach of this agreement. However, Caterpillar responds that they were laid off from employment with Caterpillar under the lay-off and seniority provisions of the applicable collective-bargaining agreement.

The plaintiffs argue that the apprenticeship agreements are separate employment contracts which do not require interpretation of the collective-bargaining agreement. We cannot agree. The plaintiffs availed themselves of many of the benefits available under the collective-bargaining agreement. Many of the terms of their employment were derived from the collective-bargaining agreement. The nature of the relationship between the apprenticeship agreements and the collective-bargaining agreements of necessity requires an interpretation of those collective-bargaining agreements. That interpretation is governed by Federal labor law and any State-law action in such circumstances is preempted by section 301(a). We cannot resolve this issue under State-law contract principles.

As an aside, we agree with Judge McDade’s finding that the apprenticeship agreements were made within the context of the collective-bargaining agreements, and that the plaintiffs’ employment remained subject to the terms and conditions of the collective-bargaining agreements. We agree that the apprenticeship agreements were not completely separate and independent agreements. The plaintiffs’ reliance on Belknap, Inc. v. Hale (1983), 463 U.S. 491, 77 L. Ed. 2d 798, 103 S. Ct. 3172, is misplaced. Belknap concerned the issue of preemption under the National Labor Relations Act, not section 301(a). Nor do we find Berda v. CBS Inc. (3d Cir. 1989), 881 F.2d 20 persuasive. The Berda court relies on the reasoning of Williams without distinguishing the fact that Williams was a removal action, while the Berda court was presented with the substantive issue of the preemption defense.

Because we find the trial courts below correctly granted Caterpillar’s motions for summary judgment, in that plaintiffs’ claims were preempted by section 301(a), we need not address the other issues and arguments raised by the parties.

For the foregoing reasons, the judgments of the circuit court of Peoria County are affirmed.

Affirmed.

McCUSKEY and HAASE, JJ., concur.


text:
    ALBA M. KINKIN et al., Trustees, et al., Plaintiffs-Appellees, v. MARY MAGNANI MARCHESI, Defendant-Appellant.
    Third District
    No. 3—90—0228
    Opinion filed April 25, 1991.

      Law Offices of Henry S. Dixon, of Dixon (Henry S. Dixon, of counsel), for appellant.
    Charles W. Helmig, of Granville, for appellees.
   PRESIDING JUSTICE STOUDER

delivered the opinion of the court:

This is an appeal taken by the defendant, Mary Marchesi, from an order of the circuit court of Putnam County granting partial summary judgment in favor of the plaintiffs, Alba Kinkin, Raymond Johnson, and Minnie Johnson, as to counts I and II of a six-count complaint. The order granted partial summary judgment as to counts I and II excepting certain joint accounts held between the defendant and her sister, Dalema Cattani, and any money included in the contents of a certain cedar chest at the time of Dalema’s death: The trial court further granted the defendant’s motion for summary judgment as to counts III, IV, V, and VI. In addition, although it was not brought to this court’s attention by the parties in their respective briefs, at oral argument we ordered the parties to file supplemental briefs on the issue whether the trial court order was final and appeal-able. After reviewing the record and the supplemental brief filed herein, we find that we lack jurisdiction to hear this appeal because no final and appealable order was entered by the trial court. For this reason, we find it unnecessary to reach the merits of this appeal and the appeal is dismissed.

The record shows that Virgilio and Dalema Cattani executed a joint and mutual will on November 3, 1975. Virgilio Cattani died November 18, 1978, survived by his wife and two children, plaintiffs Alba Kinkin and Minnie Johnson. Virgilio’s will was probated and the estate administered and settled.

Dalema likewise executed the same will. Dalema died on February 19, 1986, and the will signed by her and Virgilio on November 3, 1975, was admitted to probate as the last will of Dalema Cattani. The estate’s inventory included the value of joint tenancy bank deposits which Dalema had created with her sister, the defendant.

The joint tenancies of Dalema and the defendant were not delivered to the executors of the last will of Dalema or to the trustees under the last will of Virgilio, prompting the filing of this cause of action.

It is the duty of this court to consider whether it has jurisdiction to hear an appeal even though this issue was not raised by the parties. (Keen v. Davis (1969), 108 Ill. App. 2d 55, 246 N.E.2d 467.) To be final and appealable, the order appealed from must terminate and dispose of the parties’ rights regarding issues in the suit so that, if affirmed, the trial court has only to proceed with the execution of judgment. (Village of Niles v. Szczesny (1958), 13 Ill. 2d 45, 147 N.E.2d 371.) Where an order of the court leaves a cause still pending and undecided, it is not a final order. (Gutenkauf v. Gutenkauf (1979), 69 Ill. App. 3d 871, 387 N.E.2d 918.) The purpose of this rule is to prevent a multiplicity of suits and piecemeal appeals. Johnson v. Northwestern Memorial Hospital (1979), 74 Ill. App. 3d 695, 393 N.E.2d 712.

The plaintiff filed a six-count complaint. Counts I and II essentially seek the return of certain monies held in joint tenancy between the defendant and Dalema. Counts III and IV sound in the tort of inducing a breach of contract. Counts V and VI allege fraud based on undue influence exercised by the defendant.

The defendant argues in her supplemental brief that the trial court order essentially disposed of all issues in dispute and that it was therefore an appealable order. The defendant points out that a final order need not be the last thing done in a case.and that in the instant case all that remains to be done is an accounting of certain monies. We agree that a final order need not be the last thing done in a case; however, we cannot agree with the defendant’s assertion that all that is left in the instant case is merely an accounting of certain monies.

The trial court’s order, which did not contain language from Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)), failed to dispose of the issues concerning the joint accounts held between the defendant and Dalema established at the time and execution of the joint will and failed to resolve the dispute surrounding the contents of the cedar chest. A cedar chest sounds innocuous enough; however, the cedar chest in the instant case has, in the past, contained up to $6,000 in cash by some estimates. In addition, the contents of this cedar chest remain in dispute. A mere accounting is not all that is required to resolve this dispute for there are individuals who may testify to certain events surrounding the cedar chest which will have a bearing on the decision as to what the cedar chest actually contains. We also note that the issue surrounding the joint accounts remains to be decided.

Furthermore, we are not persuaded by the defendant’s reliance on Merchants National Bank v. Weinold (1959), 22 Ill. App. 2d 219, 160 N.E.2d 174. In Weinold, the issue before the court was what effect a later drafted will had on a trust. The court held that the will did not alter or revoke the trust. In contrast to Weinold, the instant proceeding was brought as an .independent action with disputed claims yet to be resolved. In essence, unlike Weinold, more than an accounting has yet to be decided in the instant case.

Accordingly, for the reasons stated, a final and appealable order has not been presented for a disposition by this court and the appeal is dismissed.

Appeal dismissed.

BARRY and GORMAN, JJ., concur.