author: PRESIDING JUSTICE HEIPLE JUSTICE STOUDER,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. ALAN J. WILKEY, Defendant-Appellee.
    Third District
    No. 3—89—0658
    Opinion filed August 31, 1990.
    STOUDER, J., dissenting.
    Terry A. Mertel, of State’s Attorneys Appellate Prosecutor's Office, of Ottawa, for the People.
    Thomas A. Karalis, of State Appellate Defender’s Office, of Ottawa, for appellee.
   PRESIDING JUSTICE HEIPLE

delivered the opinion of the court:

The defendant, Alan J. Wilkey, was originally charged with the offense of possession of cannabis (Ill. Rev. Stat. 1989, ch. 56½, par. 704(c)). Thereafter, the State moved to file a new two-count information. Count I realleged the cannabis charge, and count II alleged that the defendant possessed less than one gram of a substance containing cocaine (Ill. Rev. Stat. 1989, ch. 56½, par. 1401(b)). The defendant filed a motion to dismiss the second count. The trial court granted his motion, and the State appeals. We reverse.

The record shows that on May 11, 1989, the defendant was charged with possession of cannabis. On May 26, 1989, he filed a speedy trial demand. On October 5, 1989, pursuant to discovery, the defendant informed the State that Ronald L. Carlson would be called as a witness for the defense. On October 16, 1989, the day the defendant’s trial was set to begin, the State filed an amended complaint adding a second count. Immediately after the second count was filed, the defendant presented a written motion requesting that the trial court dismiss the new count.

In his motion, the defendant alleged that all of the information concerning the basis for count II had been known by the State since May 11, 1989. He further alleged that the additional charge was filed to embarrass, harass, and prejudice him, to violate his right to due process, and to hamper and impede his defense. Specifically, he contended that he had the right to a preliminary hearing on the new charge and that the filing of the new charge on the day of trial would cause him either to waive his right to a preliminary hearing or to demand a preliminary hearing and thus waive his right to a speedy trial. He also alleged that his counsel would need time to prepare for the additional charge and that the charge was meant to harass him for failing to plead guilty to the original charge.

At the hearing on the defendant’s motion to dismiss, the prosecutor testified that she had never told the defendant that the cocaine charge was being filed because he would not plead guilty to the cannabis charge. The prosecutor stated that the cocaine charge had not been previously filed because she did not have sufficient evidence until Roger Carlson made a taped statement to the police on October 12, 1989. She received this statement on Friday, October 13, 1989, reviewed it, and informed the defendant that she would file the additional count on Monday, October 16, 1989.

After hearing arguments, the trial court granted the defendant’s motion. The judge did not set forth his reasons for granting the motion, but commented that he was upset about the State’s filing the additional count on the day of trial.

On appeal, the State argues that the trial court erred in dismissing count II. Specifically, it contends that the charging delay did not violate the defendant’s right to due process since the defendant was not prejudiced by the delay. Furthermore, it argues that the State has the right to charge a defendant with a more serious charge if he does not plead guilty and in so doing does not violate the defendant’s right to due process.

A trial judge, on his own motion or on the motion of the defendant, has no power to dismiss criminal charges before trial in the absence of a supreme court rule, a statute, or a due process violation. (People v. Sehroeder (1981), 102 Ill. App. 3d 133, 429 N.E.2d 573.) A charging delay can be used to show a due process violation. However, where there has been such a delay, the defendant must come forward with a clear showing of actual and substantial prejudice. If the accused satisfies the trial court that he has been substantially prejudiced by the delay, then the burden shifts to the State to show the reasonableness, if not the necessity, of the delay. People v. Lawson (1977), 67 Ill. 2d 449, 367 N.E.2d 1244.

In the case at hand, no supreme court rule or statute authorized the trial court’s dismissal of the charge. Further, the defendant did not show any actual or substantial prejudice so as to invoke a due process violation. The defendant argued that his right to a speedy trial would be violated by allowing count II to stand, because it would cause him to either waive his right to a preliminary hearing or waive his right to a speedy trial. We find, however,/ that since the State still had 14 days in which to bring the defendant to trial, his argument was mere speculation that the speedy trial term would run before he would be prepared to go to trial. Mere speculation does not amount to a showing of actual and substantial prejudice.

We further note that the speedy trial term in effect for the first offense was not applicable to the second offense. When a new and additional charge arises from the same facts as did the original charge and the State knew of these facts at the time of the initial indictment, the time within which trial is to begin on the additional charge is subject to the same statutory limitation applied to the original charge. (People v. Rodgers (1982), 106 Ill. App. 3d 741, 435 N.E.2d 963.) Here, however, the uncontradicted testimony presented at the hearing established that the State did not have the facts necessary to bring the second charge when the defendant was originally charged. Therefore, we find that no speedy trial issue existed and as such the defendant failed to clearly show actual and substantial prejudice.

As a final note, we find, contrary to the defendant’s argument, that the State did have the right to bring additional charges against the defendant when plea negotiations failed. Bordenkircher v. Hayes (1978), 434 U.S. 357, 54 L. Ed. 2d 604, 98 S. Ct. 663.

The judgment of the circuit court of Rock Island County is reversed, and the cause is remanded for further proceedings consistent with our findings.

Reversed and remanded.

BARRY, J., concurs.

JUSTICE STOUDER,

dissenting:

After reviewing the opinion in the above-captioned case, I must respectfully dissent. The basis of my disagreement concerns the timing of the State’s bringing additional charges.

Initially, I do not dispute that the State has the right to bring additional charges against the defendant when plea negotiations fail. (Bordenkircher v. Hayes (1978), 434 U.S. 357, 54 L. Ed. 2d 604, 98 S. Ct. 663.) In the instant case, however, the timing of the State’s bringing the additional charges was a delaying tactic and a due process violation because it forced the defendant to waive his speedy trial rights. People v. Williams (1981), 94 Ill. App. 3d 241, 418 N.E.2d 840.

In cases such as this, it is at the trial court’s discretion whether to find the actions of the State to constitute a due process violation. (People v. Ferguson (1977), 46 Ill. App. 3d 815, 361 N.E.2d 339.) Therefore, I conclude that the trial court did not abuse its discretion by finding the actions of the State to constitute a due process violation in the instant case. Accordingly, I would affirm the judgment of the trial court.


source: Caselaw Access Project

author: PRESIDING JUSTICE HEIPLE

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. ANNIE B. REED, Defendant-Appellee.—THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. JAMES EDWARD HOPKINS, Appellee.—THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. JOHNNIE MOSLEY, Appellee.—THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. JARVIS GRANT, Appellee.
    Third District
    Nos. 3—89—0759 through 3—89—0762 cons.
    Opinion filed August 31, 1990.
    Marshall E. Douglas, State’s Attorney, of Rock Island (John X. Breslin and Gary F. Gnidovec, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Jack Schwartz, of Rock Island, for appellee Annie B. Reed.

      Joseph N. Ehmann, of State Appellate Defender’s Office, of Ottawa, for appellee James E. Hopkins.
    Robert Agostinelli, of State Appellate Defender’s Office, of Ottawa, for appellees Johnnie Mosley and Jarvis Grant.
   PRESIDING JUSTICE HEIPLE

delivered the opinion of the court:

This appeal involves four defendants who were arrested as the result of a police drug raid on a public tavern in Rock Island, Illinois, on April 8, 1989. The raid occurred pursuant to a search warrant which permitted the police to search everyone in the Explosive Ten Motorcycle Club for drug-related evidence. The trial court found that the search warrant, which permitted the officers to search everyone in a public tavern, was too open-ended, thus violating the defendants’ fourth amendment rights. Accordingly, the trial court granted the defendants’ motions to suppress. We affirm.

The search warrant issued for the Explosive Ten Motorcycle Club was prepared by the State’s Attorney of Rock Island County, Marshall E. Douglas, and was based on the affidavit of Rock Island police officer Charles Hauman. The affidavit of Officer Hauman provided in pertinent part:

“1. That Hauman had just set up a ‘controlled buy’ where a confidential informant was given money, went into the tavern and allegedly bought a substance purported to be cocaine from the bartender.
2. That the informant claimed to have purchased cocaine in the tavern on six or more occasions in the previous forty-five days. That the informant claimed that a person named Willie E. Harrington had sold the drugs in the controlled buy but also stated that other persons in the tavern are supplied with cocaine packets from a source inside the bar and will sell them to persons who come into the bar and request cocaine.
3. That the informant and other police officers stated that the upstairs apartment was used to prepare cocaine for sale or distribution.
4. That Hauman believed that cocaine, records and processing equipment could be found in the tavern and in the upstairs rear apartment.”

A search warrant was then issued which alleged the following:

“Willie E. Harrington and other persons present in the public bar of the Explosive Ten Motorcycle club now unlawfully possess a quantity of cocaine, records of drug or narcotic transactions, equipment and materials for packaging and processing cocaine and funds derived from the sale or transfer or trafficing [sic] in controlled substances specifically cocaine.”

At the hearing on the motion to suppress, Officer Hauman testified that he and several other officers executed the search warrant at approximately 10 p.m. The four defendants in the instant case were the only persons arrested as a result of the police raid. Defendant James Hopkins was charged with unlawful possession of less than 15 grams of cocaine and unlawful possession of more than 2.5 but less than 10 grams of cannabis. Hopkins testified that he arrived at the club approximately five minutes before the police entered and was sitting at a table in the bar. Defendant Johnnie Mosley was charged with unlawful possession of less than 15 grams of cocaine. Mosley testified that he arrived at the club on April 8 between 9:30 and 9:45 p.m. and was in the bathroom at the time that the search warrant was executed. Defendant Jarvis Grant was charged with unlawful possession of less than 15 grams of cocaine and unlawful intent to deliver less than one gram of cocaine. Jarvis testified that he had just walked in the door of the club when the police entered to execute the search warrant. Defendant Annie Reed was charged with unlawful possession of less than 15 grams of cocaine and unlawful intent to deliver more than one gram but less than 15 grams of cocaine. Rock Island police officer Glen Schamp testified that when he entered the club Reed was standing alone behind the bar at the south end. Several witnesses for defendant Reed testified that Reed was standing by the south end of the bar but was not behind the bar at the time the police entered.

Subsequent to the evidentiary hearing, the trial judge issued a written opinion granting the motion to suppress, finding that the search warrant did not specifically authorize the search of the defendants and that “the use of the evidence obtained under these circumstances would make a mockery of the Fourth Amendment to the Constitution.”

On appeal, the State raises three arguments: (1) the search warrant and accompanying affidavit described the persons to be searched as completely as possible, thereby establishing probable cause to search all individuals at the public tavern; (2) that the search warrant at a minimum established probable cause to search defendant Reed since the police had reason to believe that Reed was an employee of the tavern because she was standing behind the bar; and (3) assuming, arguendo, that the search warrant was invalid, the good-faith exception to the fourth amendment’s exclusionary rule precluded suppression of the evidence seized from the defendants. We find no merit to the State’s arguments.

It is well settled that “open ended” or “general” warrants are constitutionally prohibited. (Ybarra v. Illinois (1979), 444 U.S. 85, 62 L. Ed. 2d 238, 100 S. Ct. 338.) The search warrant must be closed or specific to the extent that the executing officer is left with no doubt or discretion as to what or who is to be searched and there must be probable cause to search every person covered by the warrant. (People v. Curry (1981), 100 Ill. App. 3d 405.) In the present action the search warrant mentioned only one specific name and then encompassed all “other persons present in a public bar.” Notably, Officer Hauman testified that he had a list of people that the police were to look for in the tavern, but that he did not submit the list or any reference to it in his affidavit. Under these circumstances, we find that the search warrant was defectively open-ended. The search warrant authorized the search of every person in the general population who happened to visit the Explosive Ten Motorcycle Club at 10 p.m. on Saturday, April 8, 1989.

Notwithstanding, the State attempts to argue that a warrant authorizing the search of all persons found in a specifically described place is not per se defective. This case, however, does not present the unusual situation where there would inherently be probable cause to search every person at a specific location because there is reason to believe every person there is involved in criminal activity. An example of when such a situation would arise would be an illegal dice game occurring in a specifically defined nonpublic place such as a manhole or barn. (2 W. LaFave, Search and Seizure §4.5(e), at 230-31 (2d ed. 1987).) Conversely, the warrant in this case involved the search of “all persons” in a public place during the normal course of business and was unconstitutionally overbroad.

The State additionally maintains that the warrant in this case was, at a minimum, sufficient to search defendant Annie Reed because the police reasonably believed that she was an employee of the tavern. This belief was premised on Officer Schamp’s testimony that when he entered the bar, Reed was standing alone behind the bar at the south end. The State claims that the search warrant established probable cause to search all bartenders and employees of the club because the .only person named in the search warrant (Willie Harrington) was a bartender and that Officer Hauman’s affidavit stated that cocaine had been purchased from persons present at the tavern six or more times during the past 45 days.

Initially, it is important to point out that Annie Reed was not an employee of the Explosive Ten Motorcycle Club. Thus, the police were mistaken in their belief. Further, Reed’s location at the time the police raid occurred is disputed. Two witnesses testified that Reed was not standing behind the bar when the police entered as Officer Schamp had testified. The trial judge was in the best position to determine the credibility of these witnesses. Most importantly, there was nothing in the affidavit which indicated that any employee, other than Willie Harrington, had engaged in the sale of narcotics. Consequently, the search warrant and accompanying affidavit were not specific enough to justify searching all employees of the tavern and the State’s argument must fail.

Finally, the State argues that even if the warrant and subsequent search violated the defendants’ -fourth amendment rights, the evidence should not have been suppressed because the officers who executed the warrant acted in “good-faith” reliance on the warrant. (United States v. Leon (1984), 468 U.S. 897, 82 L. Ed. 2d 677, 104 S. Ct. 3405.) The good-faith exception to the exclusionary rule is inapplicable to the case at bar for two reasons. First, the good-faith exception does not apply to a search warrant that is based on a “bare bones” affidavit. (United States v. Baxter (6th Cir. 1989), 889 F.2d 731.) In the present action, none of the defendants in question were named or otherwise described or identified in the affidavit. Second, the officers who executed the warrant cannot claim good faith because the search warrant was so facially overbroad that they could not reasonably believe that it was valid. (United States v. Leon (1984), 468 U.S. at 923, 82 L. Ed. 2d at 699, 104 S. Ct. at 3421.) In fact, Officer Hauman testified that in his 16 years on the police force, he had never known of a raid or search of this type where members of the general public were searched because they happened to be in a specified public place.

In conclusion, the trial court did not abuse its discretion in granting the defendants’ suppression motions.

Affirmed.

SCOTT and STOUDER, JJ., concur.


author: JUSTICE BARRY

text:
      In re PETITION TO FORM THE SOUTH PRAIRIE PARK DISTRICT (Robert Widman et al., Petitioners-Appellants, v. Roland Full et al., Objectors-Appellees).
    Third District
    Nos. 3—89—0475, 3—89—0544 cons.
    Opinion filed August 27, 1990.
    E. Kenneth Friker and David A. Izzo, both of Klein, Thorpe & Jenkins, Ltd., of Chicago, and Andrew J. O’Conor, of Myers, Daugherity, Berry & O’Conor, Ltd., of Ottawa, for appellants.
    No brief filed for appellees.
   JUSTICE BARRY

delivered the opinion of the court:

This appeal arises from the trial court’s dismissal of a petition filed by Robert Widman et al., for the formation of the South Prairie Park District. We reverse.

Initially, we note that the objectors, Roland Full and M.H. Spicer, Inc., have not submitted an appellee’s brief. Nevertheless, where the record is simple and the court of review can easily decide the disputed errors without an appellee’s brief, the reviewing court may decide the merits of the appeal. First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493.

The petition for the formation of the South Prairie Park District was filed on March 28, 1989. It sought to have the matter of the organization of. the park district submitted to the voters at the November 7, 1989, general election. Also filed with the petition was the affidavit of David A. Izzo, stating that a notice of intent to petition for the formation of the South Prairie Park District had been delivered to the Daily Times newspaper for publication. The notice of the petition to form the park district was published in the June 22, 1989, edition of the Daily Times.

On June 30, 1989, the objectors filed a motion to dismiss the petition, alleging that it failed to conform with the notice requirement set forth in section 28—2 of the Election Code (Code) (Ill. Rev. Stat. 1989, ch. 46, par. 28—2), since it was filed prior to the publication of the notice. Following a hearing on this matter, the trial court dismissed the petition, finding that it was defective for failing to conform with section 28—2 of the Election Code.

Section 28 — 2 of the Code provides in pertinent part:

“A petition for the incorporation or formation of a new political subdivision whose officers are to be elected rather than appointed must have attached to it an affidavit attesting that at least 108 days and no more than 138 days prior to such election notice of intention to file such petition was published in a newspaper published within the proposed political subdivision, or if none, in a newspaper of general circulation within the territory of the proposed political subdivision in substantially the following form:
NOTICE OF PETITION TO FORM A NEW_
Residents of the territory described below are notified that a petition will or has been filed ***.” Ill. Rev. Stat. 1989, ch. 46, par. 28—2.

We further note that section 2—2 of the Park District Code (Ill. Rev. Stat. 1989, ch. 105, par. 1—1 et seq.) provides in relevant part:

“The petition must include an affidavit attesting that notice of intent to petition for formation of a park district has been published as required by the general election law.” Ill. Rev. Stat. 1989, ch. 105, par. 2—2.

On appeal, the petitioners contend that the trial court erred in dismissing their petition. Specifically, they argue that a petition may be filed before the publication of notice to the residents since the form of the notice contained in section 28 — 2 states that “a petition will or has been filed.”

This same issue was addressed by the court in In re Organization of Algonquin Park District (1982), 103 Ill. App. 3d 1056, 432 N.E.2d 306. There, the court held that the language of the notice requirement contained in section 28—2, that “a petition will or has been filed,” indicated that the petition could be filed prior to the publication of the notice. In addition, the court stated that the reason for the statutory requirement of notice was to notify the residents of the proposed park district of a referendum to establish a new park district. The court therefore held that as long as the residents were given notice, the petition need only substantially comply with the technical requirements of the election law.

We agree with this decision and therefore hold that as long as the statutory requirements have been substantially met, a petition may be filed with a circuit court prior to publication of notice to the residents. In the instant case, when the petition was filed on March 28, 1989, there was an affidavit attached which stated that a notice of intent to petition for the formation of a new park district had been delivered to the Daily Times. The record shows that the notice to the residents was published in the Daily Times on June 22, 1989, exactly 138 days prior to the November 7, 1989, election. We therefore find that the filing of the petition with Izzo’s affidavit and the subsequent publication substantially complied with the aforementioned statutes.

Accordingly, the judgment of the circuit court of La Salle County is reversed, and the cause is remanded for further proceedings consistent with our findings.

Reversed and remanded.

HEIPLE, P.J., and STOUDER, J., concur.


author: JUSTICE STOUDER

text:
    ALAN FRIEDLAND, Plaintiff-Appellee, v. BOARD OF TRUSTEES OF THE MOLINE POLICE DEPARTMENT PENSION FUND, Defendant-Appellant.
    Third District
    No. 3—89—0504
    Opinion filed August 2, 1990.

      Klockau, McCarthy, Ellison & Marquis, P.C., of Rock Island (G. Trent Marquis, of counsel), for appellant.
    Van Hooreweghe, Fackel & Thuline, of Moline (Francis Van Hooreweghe, of counsel), for appellee.
    Doss, Puchalski & Keenan, Ltd., of Chicago, for amicus curiae Illinois Police Pension Fund.
   JUSTICE STOUDER

delivered the opinion of the court:

The defendant, the Board of Trustees of the Moline Police Department Pension Fund (board), appeals from an order of the circuit court entered in an action brought by the plaintiff, Alan Friedland (police officer), seeking review of an administrative decision by the board. For reasons explained below we dismiss this appeal.

On July 1, 1987, the police officer was appointed as a probationary police officer with the Moline police department. He applied for membership in the Moline Police Department Pension Fund (fund) in a timely fashion, but was denied membership and failed to seek review of the denial. Effective July 1, 1988, the police officer was appointed as a permanent police officer. On August 16, 1988, the police officer once again applied for membership in the fund. On October 11, 1988, the board rejected the application “as untimely.”

On October 26, 1988, the police officer filed a complaint in the circuit court for administrative review of the board’s rejection of the second application. On January 30, 1989, the circuit court remanded the cause to the board for the limited purpose of considering and deciding whether the appointment to permanent status constituted a reappointment for purposes of section 3—106 of the Illinois Pension Code (Ill. Rev. Stat. 1987, ch. 108½, par. 3-106). On April 12, 1989, the board considered the issue, gave the police officer and his counsel an opportunity to present their position, and decided that the appointment to permanent status did not constitute a reappointment for purposes of section 3 — 106.

On April 21, 1989, in accord with an agreement between the parties, the police officer filed an amended complaint for administrative review. On July 6, 1989, the circuit court reversed the finding of the board, holding that the appointment to permanent status constituted a reappointment for purposes of section 3 — 106, and remanded the cause to the board “for the Board to consider the application as filed.” The circuit court made no findings that would permit an interlocutory appeal of its order. The board then brought this appeal. The police officer moved in the appellate court to dismiss the appeal, and that motion has been taken with the case.

The finality of an order of the circuit court sitting in review of an administrative decision is determined by the same standards as apply to the finality of a decision of the appellate court sitting in review of a decision by the circuit court in a case not involving administrative review. (See Wilkey v. Illinois Racing Board (1983), 96 Ill. 2d 245, 250, 449 N.E.2d 843, 845.) The finality of an order is not necessarily determined by its form, and while ordinarily an order remanding a cause for further proceedings will not be final, a remandment does not invariably render an order nonfinal. (See Wilkey, 96 Ill. 2d at 249, 449 N.E.2d at 844.) Where a cause is remanded for further proceedings involving disputed questions of law or fact, the remanding order or judgment is not of a final character. (See Wilkey, 96 Ill. 2d at 249, 449 N.E.2d at 844.) “ ‘The ultimate question to be decided in each case is whether the judgment fully and finally disposes of the rights of the parties to the cause so that no material controverted issue remains to be determined.’ ” Wilkey, 96 Ill. 2d at 249, 449 N.E.2d at 844, quoting Cory Corp. v. Fitzgerald (1949), 403 Ill. 409, 415, 86 N.E.2d 363, 366.

In Doyle v. City of Crystal Lake (1989), 183 Ill. App. 3d 405, 539 N.E.2d 796, a zoning board had rejected as untimely a request for review of the issuance of a building permit. In reviewing that action, the circuit court found that the filing of the petition was timely and stayed construction until a final decision would be rendered by the zoning board in review of the issuance of the building permit, effectively remanding the cause to the zoning board for further proceedings. The city appealed that ruling, but the appellate court dismissed the appeal on the basis that disputed questions of law or fact remained to be determined and the rights of the parties had not been finally adjudicated.

In People v. Pollution Control Board (1989), 190 Ill. App. 3d 945, 547 N.E.2d 647, the appellate court had before it a direct appeal from a decision of the Pollution Control Board. While the procedural posture of that case differs from that of this case, it is analogous to that of this case. More importantly, the observations of the appellate court there are instructive. In that case a permit had been denied by a State agency on the basis that the company involved had not been in compliance with certain regulations. In reviewing the action of that agency, the Pollution Control Board determined that the regulations on which the agency had based its decision simply did not apply under the circumstances of the case. Rather than directing the State agency to issue the permit, the Pollution Control Board remanded the matter to the State agency for further proceedings to determine whether the company was otherwise eligible for the permit it was requesting. The Attorney General sought to appeal the decision of the Pollution Control Board, but the appellate court dismissed the appeal. The court stated that there had not been a full adjudication of the propriety of issuing or denying the permit, and that since further proceedings were required for that purpose, the order was not appealable as a final order. The appellate court rejected the argument of the Attorney General that the issue of the applicability of the regulations involved had been finally decided and that therefore the decision of the Pollution Control Board was a final one. The court in that case viewed such a definition of finality as one that would encourage piecemeal appeal of separate issues in any given lawsuit, something it deemed undesirable.

In the instant case, there remain substantial questions of law and fact that remain to be determined by the board before the ultimate issue can be reached of whether the police officer’s application for membership in the fund ought to be approved or denied. If we were to affirm the circuit court’s order, the case would clearly not be near final resolution, as the board would have to treat the application as having been timely filed and would have to follow the procedures established for processing applications that are timely filed. Once a final decision would be made by the board, that decision would be subject to administrative review, and this court might then have to decide other issues in the case. It is our view that the order from which the board is seeking to appeal is not a final order, and since no steps were taken to bring an interlocutory appeal, we have no choice but to dismiss this appeal.

We distinguish a recent case that might appear to be at variance with the instant case. In Fisher v. Rock Island County (1989), 191 Ill. App. 3d 110, 547 N.E.2d 678, the appellate court determined that an order of the circuit court was final and appealable, where the order remanded a cause to a commission charged with evaluating applicants for positions as deputy sheriffs. In that case this court viewed the order as directing the commission to do very specific things that did not involve resolution of any material questions of law or fact. The circumstances of each case will determine whether a remand would involve further proceedings of material issues that will be in controversy, and the circumstances in the Fisher case were such that this court regarded the further proceedings to be on incidental matters. The order of the circuit court in that case effectively directed the commission to add the applicant’s name to the then current eligibility list for a deputy sheriff position. In contrast, in the instant case it is an open question whether the police officer’s application to the fund ought to be approved, even if one assumes that it was filed in a timely fashion.

Accordingly, we dismiss this appeal.

Appeal dismissed.

SCOTT and BARRY, JJ., concur.


text:
    JAMES E. MEALEY, JR., Plaintiff-Appellant, v. DANIEL R. PITTMAN, d/b/a Three and Company, et al., Defendants-Appellees (Anthony Piccinelli et al., Defendants).
    Third District
    No. 3—89—0179
    Opinion filed August 31, 1990.

      Reardon, Orr, Dvorak & Babcock, Ltd., of East Peoria (David A. Dvorak, of counsel), for appellant.
    Myers, Daugherity, Berry & O’Conor, Ltd., of Ottawa, and Cassidy & Mueller, of Peoria (Eugene P. Daugherity and David B. Mueller, of counsel), for appellees The Cutlery World and Cutlery Corporation of America.
    Dunn, Hayes, Condon & Marsaglia, of Morris (Robert C. Marsaglia, of counsel), for appellee Dolan’s Sports, Inc.
   JUSTICE BARRY

delivered the opinion of the court:

Plaintiff James Mealey appeals from five orders entered in a personal injury action brought in the circuit court of La Salle County. One order entered summary judgment in favor of defendant Daniel R. Pittman. The other four dismissed with prejudice various counts of the amended complaint against defendants Cutlery World, Cutlery Corporation of America, and Dolan’s Sports, Inc.

This litigation originated with an incident occurring on March 23, 1985, when plaintiff was injured by defendant Anthony Piccinelli during a fight in the parking lot of the Three & Co. tavern operated by defendant Pittman. Mealey and Piccinelli, both minors under 21 years of age, had been drinking in the tavern but had not encountered one another there and did not know one another.

About 1:30 a.m., as Piccinelli was going to his truck in the parking lot adjacent to the tavern, he got into an argument with Mealey after which Piccinelli went to his parked truck and removed a device called “karate sticks” or “nunchucks.” Nunchucks are two short, wooden sticks connected by a piece of chain which can be whirled with a circular motion and thrown with deadly force. Piccinelli swung the nunchucks over his head and struck plaintiff in the eye, causing a fracture of his cheekbone and nose and the loss of his right eye.

It was not disputed that Piccinelli had never been involved in fights at this tavern or anywhere else prior to this night, that he did not cause any trouble in the tavern this night, and that he was not known to be violent.

Police reports were before the trial court indicating a long history of complaints about minors drinking at Three & Co. and of some property damage occurring in the parking lot and neighborhood of the tavern. Some of those incidents occurred before defendant Pittman purchased the tavern in December of 1984, and some happened after Pittman assumed ownership. The most serious disturbance occurred in February of 1985 when a fight erupted inside the tavern between two groups of adult men who knew one another. On that occasion, the police were promptly called by Pittman.

The night Mealey was injured, Pittman was not told of the parking lot fracas. Mealey was taken to the hospital by a friend, and emergency room personnel notified the police. Five days later, after interviewing a number of witnesses, Piccinelli was arrested and charged with aggravated battery and illegal use of weapons. He subsequently pleaded guilty to the aggravated battery charge and was sentenced to two years’ probation.

Mealey has sought recovery on numerous grounds, including a cause of action for violation of the Dramshop Act (Ill. Rev. Stat. 1987, ch. 43, par. 135), which was settled, and a negligence action against Piccinelli, which proceeded to trial and resulted in a verdict for plaintiff of $950,000.

This appeal involves additional counts alleging causes of action against Pittman for premises liability and against Cutlery World, Cutlery Corporation of America, and Dolan’s Sports, the manufacturer and distributors of the nunchucks, seeking to recover for strict liability in tort, absolute liability, negligence, willful, wanton or reckless conduct, and Federal Hazardous Substances Act (15 U.S.C. §1261 et seq. (1988)) violations. The trial court ruled in favor of defendants as to all those theories. We shall consider each theory of liability separately.

I. PREMISES LIABILITY

Plaintiff alleged that defendant Pittman owed him a duty to exercise ordinary care in the operation of his business and to maintain the premises in a reasonably safe condition, including the duty to reasonably guard against assaults upon plaintiff, and that defendant failed to provide guards or personnel to protect plaintiff from assaults by other patrons. Plaintiff further alleged that defendant knew or should have known of assaults upon patrons on previous occasions and that he maintained and encouraged an environment where assaults upon patrons would occur in that he failed to supervise the premises to prevent use of alcoholic liquors by minors.

The parties do not dispute the applicable law: A tavern keeper’s duty to its invitees is to take reasonable affirmative action to protect against criminal attacks when the danger is apparent or the circumstances such that the danger is reasonably foreseeable (Yangas v. Charlie Club, Inc. (1983), 113 Ill. App. 3d 398, 447 N.E.2d 484) and when the burden of preventing such attacks can reasonably be placed on the defendant (Getson v. Edifice Lounge, Inc. (1983), 117 Ill. App. 3d 707, 453 N.E.2d 131). Foreseeability must be determined from the facts and circumstances of each case. Getson v. Edifice Lounge, Inc., 117 Ill. App. 3d 707, 453 N.E.2d 131.

According to the affidavits and depositions in the record, Piccinelli had done nothing to place Pittman on notice that Piccinelli might be prone to assault or fight other patrons of the tavern or otherwise behave in a violent manner. Plaintiff argues that it was, however, reasonably foreseeable that minors to whom the liquor was served would be a group of people “possessed of the propensity to cause harm.” As best we can determine, there was no evidence of trouble caused by the minors who allegedly frequented the tavern during the time Pittman owned it which could be said to have put Pittman on notice of the danger which plaintiff encountered.

The only disturbance at the tavern after defendant purchased the business involved a dispute described above between two groups of adults, not minors. Pittman testified that it was legal to allow minors in the tavern but not to serve them alcoholic beverages, and a police officer corroborated this testimony. Thus, minors on the premises did not h ave an illegal status, and, like the motorcycle gang in Getson v. Edifice Lounge, Inc., cannot be considered dangerous per se, in the absence of some prior troublemaking conduct.

Plaintiff also contends that there was evidence that minors were drinking in the tavern that night and that beer was both sold and given to minors illegally. Plaintiff then reasons that this was a “condition” of the premises “conducive to trouble” and was sufficient to establish a duty owed by Pittman to patrons to take reasonable care and vigilance to prevent injury. Plaintiff relies upon Comastro v. Village of Rosemont (1984), 122 Ill. App. 3d 405, 461 N.E.2d 616, for its holding that the existence on the premises of a group of “rowdy, drunkers, drug users” was sufficient advance warning of potential trouble to give rise to a duty to protect the patrons at a concert. The concert featured a rock band named “AC/DC,” and the police chief testified that he had checked at other locations where the group had performed and learned that the band had attracted persons who are rowdy and troublesome.

Unlike Comastro, there was no evidence here of specific problems with minors fighting or causing trouble at Three & Co. before the night plaintiff was injured.

Plaintiff relies heavily upon those cases where a history of prior criminal attacks was held to give the possessor of the premises notice that such attacks are reasonably foreseeable, thereby imposing a duty to protect invitees. One such case is Neering v. Illinois Central R.R. Co. (1943), 383 Ill. 366, 50 N.E.2d 497, where the continuing presence of hoboes and vagrants around a railroad platform in 1938 was sufficient to support a judgment for a passenger who was beaten, robbed and raped while waiting for a train. In Haynes v. Chicago Transit Authority (1978), 59 Ill. App. 3d 997, 376 N.E.2d 680, the plaintiff was injured in a criminal assault in a CTA station where there had been a holdup three months earlier and crimes at nearby stations more recently. Again the court found sufficient evidence to sustain a verdict for plaintiff. We are doubtful that the circumstances giving rise to a duty to the traveling public in those cases can be equated with the circumstances arising with regard to the parking lot of a tavern used by patrons of that tavern. In any event, the history of problems at the Three & Co. tavern would not constitute notice of danger as a matter of law.

The record includes police reports of 14 calls related to Three & Co. tavern. Nine calls were dated between 1977 and November of 1984, prior to the time Pittman purchased the tavern. There is no evidence that Pittman knew of those events.

The remaining five police reports involved complaints received after Pittman purchased the tavern. Three were reports that minors were drinking in the tavern; two of these were anonymous. One report involved a fight between some adults, as mentioned above, and one, dated March 1, 1985, was a raid where eight minors and a bartender were arrested in the tavern for illegal sales to minors. This evidence establishes that the tavern has had an ongoing problem with patronage by minors, but it does not establish notice to Pittman that patrons were at risk of being criminally attacked in the parking lot as a result of the illegal consumption of alcoholic beverages by minors.

As we held in Yangas v. Charlie Club, Inc., it would be unreasonably burdensome to impose on all tavern owners a duty to patrol and supervise their parking lots in order to protect their patrons from possible criminal attack in the absence of a reasonably foreseeable danger of injury.

The question of the existence of a legal duty here is a question of law. (Yangas v. Charlie Club, Inc., 113 Ill. App. 3d 398, 447 N.E.2d 484.) We conclude that no duty arose under the circumstances of this case, and the trial court order granting summary judgment to Pittman will be affirmed.

II. PRODUCT LIABILITY

Plaintiff sought to recover for product liability against Dolan’s Sports, Inc., the manufacturer of the nunchucks, Cutlery World, owner of the retail store which sold the nunchucks to Piccinelli, and Cutlery Corporation of America, the distributor who provided the nunchucks to the retailer.

The complaint included counts against each defendant asserting theories of negligence, strict liability, and willful and wanton conduct, all arising out of the defendants’ failure to warn of the dangerous propensities of the product. Plaintiff alleged, inter alia, that the device known as nunchucks as constructed and used was an extremely dangerous and deadly weapon capable of causing serious personal injury or death, and that the danger was not obvious or readily apparent to users or bystanders due to its small, innocent appearance and the general public’s lack of familiarity and knowledge of the purpose, use and dangers of the device. Plaintiff further alleged that the device was unreasonably dangerous from the time it left defendants’ control until the time plaintiff was injured because of one or more conditions, including the lack of warning or instructions; that defendants knew or should have known of the danger and yet failed to warn or instruct; and that plaintiff was seriously injured as a direct and proximate result of one or more of the unreasonably dangerous conditions alleged. There were no allegations of defective design or manufacture.

Although all parties present numerous arguments relating to the causes of action arising out of the alleged duty to warn asserted by plaintiff, the trial court’s dismissal of those counts was a correct application of the rule that there is no duty to warn of the potential for injury resulting from common propensities of a product which are open and obvious. Many cases have so held. See, e.g., Genaust v. Illinois Power Co. (1976), 62 Ill. 2d 456, 343 N.E.2d 465 (no duty to warn that electricity will arc from a power line to a steel radio antenna and tower installed in close proximity to electrical wires); Pitts v. Basile (1966), 35 Ill. 2d 49, 219 N.E.2d 472 (no duty to warn that darts thrown at a person will cause injury); Taylor v. Gerry’s Ridge-wood Inc. (1986), 141 Ill. App. 3d 780, 490 N.E.2d 987 (np duty to warn that a loaded revolver will fire when the trigger was pulled during a game of Russian roulette).

Plaintiff defines the nunchuck device as a “martial arts weapon,” a description which admits the self-evident danger from use of such a weapon against another person. Furthermore, it is common knowledge that injury will result from a hard object forcefully striking a person in the eye.

In summary, we conclude that plaintiff failed to state a cause of action for negligence, strict liability in tort or willful and wanton misconduct based upon defendants’ failure to warn of the potential dangers from use of nunchucks. We so conclude for the simple reason that there was no duty to warn of the weapon’s open and obvious propensity to harm if used to strike another person in the face and eye.

III. ABSOLUTE LIABILITY

Plaintiff also contends that it was error to dismiss those counts which alleged defendants’ absolute liability for manufacturing, distributing, and selling ultrahazardous instrumentalities. Illinois does recognize absolute liability relating to certain instrumentalities that are inherently dangerous, such as explosives, high voltage electrical current, large animals, and toxic chemicals, but such liability has not been recognized with regard to devices which are dangerous only when used improperly such as a trampoline (Fallon v. Indian Trail School, Addison Township School District No. 4 (1986), 148 Ill. App. 3d 921, 500 N.E.2d 101) or a steel spike (Cole v. Housing Authority (1979), 68 Ill. App. 3d 66, 385 N.E.2d 382). Just as was the case in Cole, we conclude that, as a matter of law, the device in question, the nunchucks, was not an inherently dangerous instrumentality when used as intended. The danger arose out of the misuse of the nun-chucks when Piccinelli intentionally used the device as a weapon to attack an unarmed antagonist. The device became dangerous solely as a result of his action. Therefore, no error occurred in dismissing the absolute liability counts of the complaint.

IV. FEDERAL HAZARDOUS SUBSTANCES ACT VIOLATION

Plaintiff alleged that the nunchucks are a hazardous substance regulated by the Federal Hazardous Substances Act (15 U.S.C. §1261 et seq. (1988)). The statute cited by plaintiff simply does not cover a device like nunchucks, and plaintiff cites no regulations which might bring such a device with the statutory scheme. We conclude that the dismissal of the counts alleging Federal violations was not error.

V. PROCEDURAL ISSUE

Finally, plaintiff argues that the trial court erred in refusing to rule upon plaintiff’s motion for summary judgment on the product liability issues. Since we have held that the complaint did not state a cause of action upon any of the product liability theories alleged, any error in failing to rule upon plaintiff’s motion for summary judgment becomes moot. In other words, plaintiff is not entitled to pursue his request for summary judgment when he has failed to state a cause of action initially.

In conclusion, we hold that the trial court did not err in entering summary judgment for defendant Pittman on the premises liability count and also did not err in dismissing the remaining counts as we have indicated above. The orders of the court are affirmed.

Affirmed.

HEIPLE, P.J., and SCOTT, J., concur.


author: JUSTICE GORMAN

text:
      In re MARRIAGE OF EDWIN J. ECKERT, Petitioner-Appellee, and ARLENE B. ECKERT, Respondent-Appellant.
    Third District
    No. 3-90-0077
    Opinion filed August 28, 1990.
    Kavanagh, Scully, Sudow, White & Frederick, P.C., of Peoria (Julian E. Cannell and Talmadge G. Brenner, of counsel), for appellant.

      Kelly & Brady, of Peoria (Gerald W. Brady, of counsel), for appellee.
   JUSTICE GORMAN

delivered the opinion of the court;

Plaintiff-husband Edwin J. Eckert brought this action against defendant-wife Arlene B. Eckert for dissolution of marriage and division of marital property. The trial court granted the dissolution and divided the marital property. Arlene appeals the judgment solely insofar as the order awards Edwin an entire interest in a residence that was deemed nonmarital property. We affirm.

Edwin and Arlene were married in Peoria County, Illinois, on November 26, 1977. Prior to their marriage, Edwin and Arlene entered into an antenuptial agreement dated November 15, 1977. This handwritten agreement was not signed by the parties but does contain Edwin’s initials in the top right-hand corner of both pages. Paragraph 5 provides:

“After ten years of marriage Ed will make new deed on 9148 N. Timberlane property making Arlene a joint tenant. In case of separation or death of Ed before that time an amount equivalent to 5% of the value of the property per year will accrue for Arlene.”

Edwin and Arlene resided in the house located at 9148 N. Timberlane during their marriage.

On July 8, 1987, Edwin filed a petition for dissolution of marriage in Peoria County, Illinois. The enforceability of the antenuptial agreement was addressed in a preliminary order dated December 1, 1988. Paragraph 3 of that order states that the agreement constitutes a “valid and binding agreement.” In the final order entered December 4, 1989, the trial court ruled that in accordance with its earlier finding, Arlene was entitled to a 50% interest in the net equity of the residence. The court ordered Arlene to vacate the residence upon the condition that Edwin pay her $25,000.

On January 3, 1990, in response to a motion for reconsideration, the court clarified its earlier order by specifically finding that the marital residence constituted the nonmarital property of Edwin. The trial court found that while Arlene is entitled to a 50% interest in the net equity of the marital residence, the contract (antenuptial agreement) is “legally insufficient to support an action for specific performance.” The trial court reasoned, “It’s the belief of this Court that neither party could now initiate a complaint for specific performance and subsequent thereto a partition suit. The case is distinguishable from the Voight case (In re Marriage of Voight (1982), 111 Ill. App. 3d 623, 444 N.E.2d 694) since in this case there was never any effective transfer of legal title.” Arlene appeals.

One issue is raised: Whether the trial court had jurisdiction over the disposition of nonmarital real estate, other than to order partition under section 514 of the Illinois Marriage and Dissolution of Marriage Act (Act) (ILL. Rev. Stat. 1987, ch. 40, par. 101 et seq.).

Arlene contends that because the trial court ruled that the agreement is a “valid and binding agreement with sufficient consideration,” she was entitled to receive a 50% interest in the residence as a joint tenant with Edwin following 10 years of marriage. Relying on In re Marriage of Voight (1982), 111 Ill. App. 3d 623, 444 N.E.2d 694, Arlene argues that the trial court, after finding the agreement to be valid and deeming the 9148 N. Timberlane property to be a nonmarital asset, was without discretion to deny her prayer for partition.

In Voight the court found that the residence in which the parties were living was nonmarital property even though the residence was held in joint tenancy by the parties. The trial court ordered the wife to transfer her joint interest in the nonmarital property. The appellate court held that the trial court had erred since the disposition of non-marital property is a matter outside of the court’s general discretion. The court indicated that on remand the parties were free to petition the trial court for partition of the jointly owned nonmarital property.

Subsequent to the Voight decision, section 503 of the Act was amended. We have reviewed the legislative history of the amendment and determined that the supreme court decision in In re Marriage of Smith (1981), 86 Ill. 2d 518, 427 N.E.2d 1239 (relied upon by the appellate court in Voight) provided the impetus for the amendment. Furthermore, in In re Marriage of Wojcicki (1985), 135 Ill. App. 3d 248, 481 N.E.2d 939, the appellate court recounted the 1983 amendment and held that a trial court in a dissolution proceeding has the general authority under section 503(d) of the Act to order nonmarital property held in joint custody to be reconveyed to the original title holder.

Voight, relied upon by Arlene, is no longer the law in Illinois. Guided by the legislative history of the 1983 amendment to section 503 and the appellate decision of In re Marriage of Wojcicki, we are of the opinion that the amended section 503 vests the trial court with the discretion to dispose of nonmarital assets as it determines, pursuant to its plan of resolution of the property issues. Accordingly, we reject Arlene’s attack on the jurisdiction of the trial court in this matter.

Accordingly, the decision of the circuit court of Peoria County is affirmed.

Affirmed.

STOUDER and BARRY, JJ., concur.

      See generally 83d Ill. Gen. Assem., House Proceedings, April 27, 1983, at 53 (House Bill 544) (statements of Representative Johnson and Mr. Charles Fleck).


author: JUSTICE LUND

text:
      In re MARRIAGE OF RAY VICTOR CECIL, Petitioner-Appellant, and KAY CECIL, Respondent-Appellee.
    Third District
    No. 3—89—0802
    Opinion filed September 5, 1990.

      Charles R. Thomas, P.C., of Pekin, for appellant.
    Marcia F. Straub and Robert H. Jones, of Robert H. Jones, Ltd., both of Peoria, for appellee.
   JUSTICE LUND

delivered the opinion of the court:

On October 5, 1988, the circuit court of Tazewell County entered a judgment dissolving the marriage of petitioner Ray Cecil and respondent Kay Cecil. On September 26, 1989, the court, following a hearing, entered a property division order. Petitioner now appeals, alleging the court improperly restricted his evidence and that the property was not divided in just proportions. We agree and reverse.

On February 16, 1985, the parties were married. On June 28, 1988, petitioner filed the original petition seeking a dissolution of marriage. On October 5, 1988, the matter was bifurcated by agreement, with the court entering an order dissolving the marriage and the question of distribution of the property being reserved.

The evidence adduced at subsequent hearings established that petitioner met respondent at the nursing home where his adult son is a resident. Respondent was employed there at the time, but she left that position after the marriage. She had previously worked at a beauty shop, as a real estate agent, and had an insurance license. At the time of the marriage the petitioner, a widower, owned a home referred to as the Ninth Street property. He also owned a cabin on Matanza Beach, a car, and a savings and stock plan through his employer, Central Illinois Light Company (CILCO). Respondent, a widow, also owned her own home and vehicle.

Shortly after the marriage, petitioner transferred the Ninth Street property into joint tenancy. He explained that respondent had been badgering him to do so. The court would not let him testify as to his intent or purpose for the transfer. This property was eventually sold and the proceeds of this sale, plus funds from petitioner’s CILCO savings plan, were used to purchase an Edgewater Beach property on August 27, 1986. Both parties signed the contract to purchase. However, on the day of closing, respondent had moved out and could not be found. Accordingly, the property was placed in petitioner’s name alone.

Respondent later returned and, according to petitioner, again began badgering him about having title to the real estate placed in joint tenancy. On September 29, 1987, they proceeded to the courthouse where respondent filled out a quitclaim deed wherein petitioner did place the property in joint tenancy. Petitioner presented the testimony of an employee in the recorder of deeds’ office that at the time of signing the green sheet petitioner was nervous, shaky, and had a red face. He was unable to sign the form, so respondent did. Respondent presented testimony of the notary to the deed to the effect that she had observed nothing wrong when it was signed. Again, the court would not let petitioner present testimony as to his intent in signing the deed.

Shortly prior to this, petitioner sold the Matanza Beach property. They went from the courthouse and put $21,000 from that sale in a certificate of deposit (CD) in both names. On May 30, 1988, after 32 years of service as a lineman, petitioner retired from CILCO. At that time, he signed an irrevocable consent to give respondent survivor benefits, which reduced his retirement income by $133 per month.

Respondent sold her home to her daughter on October 22, 1987. She gave $10,000 to her daughter and to one son, explaining that she viewed this as their inheritance from their father’s death. She agreed with her other son that, since the marriage was shaky, she would purchase another home and put it in his name to ensure he would get his inheritance. This home was purchased in January 1988 for $22,000 realized from the first sale, and respondent now lives there rent free. Respondent admitted not telling petitioner of the sale of the house until one month after it was done. She explained the house was a “stormy” subject which created marital problems.

The court determined that both the CD and the Edgewater Beach property should properly be considered marital property. The court awarded each party a one-half interest in the Edgewater Beach property and, following a deduction for due taxes, one-half interest in the CD. The court also equally divided the marital-service portion of the pension, the marital value of the savings plan, and the marital value of the stock plan. The court ordered respondent to return the survivor benefits of the pension plan to petitioner. Petitioner now appeals.

Petitioner’s initial contention is that the court improperly limited his evidence. He attempted to present evidence as to his intent and purpose in placing the Ninth Street and Edgewater Beach properties in joint tenancy and placing the proceeds from the sale of the Matanza Beach property into a joint CD. The court would not allow him to do so. Petitioner believes this is incorrect because the proffered evidence is relevant to the question of the presumption of a gift.

Section 503 of the Illinois Marriage and Dissolution of Marriage Act (Act) requires a court to classify property as either marital or nonmarital in order to assign or divide it upon a marriage dissolution. (Ill. Rev. Stat. 1989, ch. 40, par. 503.) Property acquired by either spouse after the marriage, but prior to the dissolution, is presumed marital property regardless of how title is actually held. (Ill. Rev. Stat. 1989, ch. 40, par. 503(b); In re Marriage of Rogers (1981), 85 Ill. 2d 217, 222, 422 N.E.2d 635, 638.) This presumption of marital property is overcome upon a showing that the property at issue was acquired by one of the exceptions enumerated in section 503(a) (Ill. Rev. Stat. 1989, ch. 40, par. 503(a)). In re Marriage of Nagel (1985), 133 Ill. App. 3d 498, 502, 478 N.E.2d 1192, 1195.

However, property designated as nonmarital pursuant to the exceptions of section 503(a) may still be presumptively transmuted into marital property by the affirmative act of the contributing spouse. (In re Marriage of Benz (1988), 165 Ill. App. 3d 273, 279, 518 N.E.2d 1316, 1319.) The principle of transmutation is based on the presumption that the owner of the nonmarital property intended to make a gift of the property to the marital estate. (In re Marriage of Olson (1983), 96 Ill. 2d 432, 439, 451 N.E.2d 825, 828.) Thus, the placement of nonmarital property in joint tenancy or some other form of co-ownership with the other spouse will raise a presumption that a gift was made to the marital estate, and the property will become marital property. (Atkinson v. Atkinson (1981), 87 Ill. 2d 174, 179, 429 N.E.2d 465, 467.) This presumption may be rebutted by clear, convincing, and unmistakable evidence that no gift was intended. Benz, 165 Ill. App. 3d at 280, 518 N.E.2d at 1319; Nagel, 133 Ill. App. 3d at 502, 478 N.E.2d at 1195.

In the present case, petitioner endeavors to establish that the Edgewater Beach property should properly be classified as nonmarital. To properly understand the issue, it is necessary to trace the acquisition of the Edgewater Beach property, which reveals three distinct events raising presumptions. Beginning with petitioner owning the Ninth Street property prior to the marriage, the evidence reveals (1) the Ninth Street property was placed in joint tenancy; (2) this property was sold and the Edgewater Beach property was purchased and placed in petitioner’s name; and (3) this property was later placed in joint tenancy.

First, it is necessary to proceed in reverse order and address the impact of petitioner placing the Edgewater Beach property into joint tenancy. This raises the presumption of the presence of a gift to the marital estate and the property is properly considered marital property. (Benz, 165 Ill. App. 3d at 280, 518 N.E.2d at 1319.) Thus, unless this presumption is overcome, it is clear the property has been properly classified regardless of the analysis at points one and two. As noted, this presumption can be rebutted by clear and convincing evidence. It was to this end that petitioner sought to testify as to his intent or purpose in placing the property in joint tenancy. The court refused to allow him to do so. We find this limitation in the evidence to be improper.

As a general rule, one element of a valid gift is an intent to make such a gift. (Benz, 165 Ill. App. 3d at 281, 518 N.E.2d at 1320.) More particularly to the question at hand, the supreme court has explained that the “principle of transmutation is based on the presumption that the owner of the nonmarital property intended to make a gift of the property to the marital estate” (emphasis added) (Olson, 96 Ill. 2d at 439, 451 N.E.2d at 828), and that this gift presumption could be rebutted “ ‘by clear, convincing, and unmistakable evidence that no gift was intended’ ” (emphasis added) (Rogers, 85 Ill. 2d at 221, 422 N.E.2d at 638, quoting Baker v. Baker (1952), 412 Ill. 511, 515, 107 N.E.2d 711, 713). Thus, it is clear the intent of the donor is not only relevant, but it is in fact the focal point of any discussion dealing with the presence or absence of a gift. This is further borne out by review of cases in which one party sought to overcome the presumption. Regardless of the success of their efforts, the question of the donor’s intent was central to the discussion. (See, e.g., In re Marriage of Thacker (1989), 185 Ill. App. 3d 465, 541 N.E.2d 784; In re Marriage of Nicks (1988), 177 Ill. App. 3d 76, 531 N.E.2d 1069; Benz, 165 Ill. App. 3d 273, 518 N.E.2d 1316; In re Marriage of Rink (1985), 136 Ill. App. 3d 252, 483 N.E.2d 316; Nagel, 133 Ill. App. 3d 498, 478 N.E.2d 1192.) We cannot imagine evidence that is much more relevant to the question of donative intent than the testimony of the donor himself as to that intent. We do not mean to suggest that this testimony itself should be persuasive on the question. The court must still consider all the circumstances and other evidence in determining what weight to give to this testimony and in determining if the presumption has been overcome. However, this testimony should be admitted and considered. Comments by petitioner’s counsel served as adequate offers of proof. Accordingly, we conclude the trial court erred by restricting petitioner’s testimony as to his intent or purpose when he placed the property in joint tenancy.

Both parties urge us to rule on the merits of petitioner’s argument that he has overcome the presumption. However, this question is one of fact (Nagel, 133 Ill. App. 3d at 503, 478 N.E.2d at 1195), which is properly addressed by the trial court, which is in a better position to observe the witnesses’ demeanor and resolve conflicting testimony. (See Benz, 165 Ill. App. 3d at 280, 518 N.E.2d at 1319.) Further, petitioner has not been able to present his full testimony. It is necessary, therefore, for the matter to be remanded to allow the court to consider all the evidence.

If the court, upon remand, determines the petitioner has not overcome the presumption, then the property is properly considered marital and the inquiry is closed. However, if the court finds the petitioner did rebut the presumption, then the other significant events mentioned earlier must be considered.

The second significant event was the purchase of the Edgewater Beach property, which was placed in petitioner’s name alone. Since the purchase was made after the marriage, this property is presumed marital property unless one of the exceptions applies. (Ill. Rev. Stat. 1989, ch. 40, par. 503.) One such exception is if the property is acquired in exchange for property acquired before the marriage. (Ill. Rev. Stat. 1989, ch. 40, par. 503(a)(2).) In the case at bar, the evidence shows part of the purchase price came from petitioner’s employee savings plan, which accumulated prior to the marriage, and the proceeds of the sale of the Ninth Street property, which petitioner owned prior to the marriage. Thus, unless some intervening act occurred, the Edgewater Beach property was acquired in exchange for property acquired before the marriage, and the presumption has been overcome.

The placement of the Ninth Street property into joint tenancy, event number one, may have been just such an intervening act. This also raises the presumption of a gift to the marital estate and transfers nonmarital property into marital property. Thus, unless this presumption is rebutted, the Edgewater Beach property was purchased in part with marital funds, and the acquisition-after-marriage presumption cannot be overcome. Petitioner attempted to present testimony as to his intent in placing the Ninth Street property in joint ownership, and the court refused to allow him to do so. The same gift analysis presented earlier is applicable here. We similarly conclude that the court erred by so limiting the testimony concerning this transfer.

We likewise observe the same error occurred in regard to the sale of the Matanza Beach property. Petitioner owned this property prior to the marriage, and the proceeds of the sale are clearly nonmarital. However, these proceeds were placed in a joint account, which presumptively transmutes it into marital property unless petitioner can overcome the presumption. The intent evidence is again relevant and admissible.

Accordingly, we conclude the cause must be remanded for the court to consider petitioner’s evidence as to his intent in placing the properties in joint tenancy and the funds in a joint account in determining if petitioner has overcome the presumption of marital property.

Petitioner also argues the court-ordered property distribution is inequitable. As noted, the court ordered respondent to return the survivor’s benefit of petitioner’s pension to him. The parties also agreed to the division of the marital personal property. The court divided all the remaining marital assets, being the Edgewater Beach property, the CD, and the marital portion of his pension, savings, and stock plan equally. While this division is, of course, subject to change upon remand based on our earlier analysis, in order to be of some guidance to the court we feel we should express our serious reservations about this division.

Section 503(d) of the Act allows the court discretion to divide marital property into what it considers “just proportions,” taking into account all listed factors as well as any other factors deemed relevant in a particular case. (In re Marriage of Asehwanden (1980), 82 Ill. 2d 31, 37, 411 N.E.2d 238, 241.) The trial court has broad discretion in the distribution of marital assets, and such discretion will not be disturbed absent clear abuse. (In re Marriage of Rapacz (1985), 135 Ill. App. 3d 1045, 1048, 482 N.E.2d 441, 443-44.) The requirement that the division be in just proportions does not mandate equal distribution between the parties. (Asehwanden, 82 Ill. 2d at 37, 411 N.E.2d at 241.) The touchstone of proper apportionment is whether it is equitable in nature (In re Marriage of McNeeley (1983), 117 Ill. App. 3d 320, 325, 453 N.E.2d 748, 752), with each case resting on its own facts. In re Marriage of Bentivenga (1982), 109 Ill. App. 3d 967, 972, 441 N.E.2d 336, 340.

While the court in its order indicated it considered all the appropriate factors, we believe that, under the factual circumstances of this case, two of the enumerated factors should be given special consideration.

The first is the contribution or dissipation of each party in the acquisition of the marital and nonmarital property, including the contribution of a spouse as homemaker. (Ill. Rev. Stat. 1989, ch. 40, par. 503(d)(1).) In the present case, the evidence clearly establishes that the contribution toward the acquisition of the property came entirely from petitioner. In fact, the only item involved that respondent “owned” was the irrevocable survivor benefit from the pension. However, this also came from petitioner. We acknowledge the greater financial contributions alone will not automatically entitle that spouse to a greater distributive share of the marital assets (Rapacz, 135 Ill. App. 3d at 1049, 482 N.E.2d at 444), and that the spouse’s contribution as a homemaker should be considered (Aschwanden, 82 Ill. 2d at 37, 411 N.E.2d at 241). However, in this case, the evidence establishes the marriage lasted three years, and respondent moved out of the home at least six times. Thus, her contribution in this regard would seem appropriately devalued.

Also, this factor refers to the dissipation of marital and nonmarital property. Respondent owned a home prior to the marriage worth at least $52,000. While, as nonmarital property, it is hers to do with as she pleases, the evidence shows she sold it without petitioner’s knowledge and distributed the assets to her children. She now lives in the house purchased with part of those assets, though it is in her son’s name. While technically she may therefore have no nonmarital assets, this conduct should be considered in the distribution. It is inequitable to allow her to dissipate her nonmarital estate in view of marital difficulties, and then to receive a larger distribution than that to which she would normally be entitled simply because she had little nonmarital property at the time of the dissolution.

We are also concerned with the factors relating to the duration of the marriage. (Ill. Rev. Stat. 1989, ch. 40, par. 503(d)(3).) In a long-term marriage, the source of the assets in acquiring marital property becomes less of a factor and a spouse’s role as the homemaker becomes greater. Here, as noted, the marriage is very short term and respondent’s input as homemaker was limited at best.

We are aware there are other factors to be considered, such as the fact this distribution was made in lieu of maintenance (Ill. Rev. Stat. 1989, ch. 40, par. 503(d)(9)) and the survivor benefit in the pension which respondent owns. Clearly, if she is ordered to return that, she is entitled to some of the other assets as compensation. However, respondent is 54 years of age, has a range of experience and employable skills, and lives rent free in a house owned by her son. The petitioner is a retired 59-year-old with some savings who is living on a fixed pension. These matters also need to be considered. See Ill. Rev. Stat. 1989, ch. 40, par. 503(d)(7).

Accordingly, upon remand, after making the initial determination concerning characterization of the property, the court, when determining an appropriate distribution, should reconsider the factors discussed above. The ultimate goal is to have an equitable distribution. (McNeeley, 117 Ill. App. 3d at 325, 453 N.E.2d at 752.) Here, due to the short-term marriage, the age of the parties, and the non-marital property respondent disposed of, an even division of marital property will not accomplish that goal.

Reversed and remanded.

GREEN and STEIGMANN, JJ., concur.


author: JUSTICE SCOTT PRESIDING JUSTICE HEIPLE,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. EVA CASAZZA et al., Defendants-Appellees.
    Third District
    No. 3—90—0080
    Opinion filed September 5, 1990.
    HEIPLE, P.J., dissenting.

      Edward Burmila, State’s Attorney, of Joliet (Gary F. Gnidovec and John X. Breslin, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Lawrence H. Hyman and Ralph E. Meczyk, both of Lawrence H. Hyman & Associates, of Chicago, for appellees.
   JUSTICE SCOTT

delivered the opinion of the court:

The defendants, Eva Casazza, Elizabeth Chartier, and Kenneth Chartier, were charged with unlawful delivery of cannabis and unlawful possession of cannabis (Ill. Rev. Stat. 1989, ch. 56½, pars. 705(a), 707(a), 704(b)). The defendants thereafter filed a motion to suppress certain evidence seized during a search of Kenneth’s yacht. Following a hearing, the trial court allowed their motion. The State appeals.

At the suppression hearing, Will County sheriff’s department investigator Joseph G. Farmer testified that on September 4, 1989, he was assigned to investigate the death of a 17-year-old boy who had drowned on the evening of September 3 at the Three Rivers Marina in Wilmington, Illinois. Three teenagers informed Farmer that two 40-year-old women had invited them to their 50-foot yacht on the night of September 3. After arriving at the yacht, the teenagers smoked marijuana with the women. The investigator noted that he had received similar information from other sources who told him that on the night in question the drowning victim and six other youths had attended a party on the yacht. The other sources also stated that while on the yacht, the youths had drunk beer and smoked marijuana.

Farmer testified that around 2:30 p.m. on September 4, he and Will County sheriff’s department sergeant Lynn Jencon arrived at the marina and located the yacht in question. The officers were met by Elizabeth Chartier. She and others were staying on the boat for the Labor Day weekend. Investigator Farmer explained to Elizabeth that he was investigating the drowning incident and that he had received information that the drowning victim drank beer and smoked marijuana while on the yacht. Farmer then asked Elizabeth if she would consent to a search. She responded that title to the boat was in her husband’s name and that the officers could not search it. At that point, Sergeant Jencon advised Elizabeth that he had been in contact with the State’s Attorney’s office and that a search warrant could be obtained. Jencon also told her that until the warrant was obtained, she and the other occupants would have to leave the boat.

According to Investigator Farmer, as the occupants of the boat were preparing to leave, he met Kenneth Chartier on the dock. Farmer informed Kenneth of the reason for the investigation and asked him if he would consent to a search of the yacht. Kenneth asked what would happen if he did not consent. Farmer told Kenneth that if he did not sign a search consent form the police “could obtain a warrant” and in the interim he would have to leave the vessel. After considering the matter, Kenneth told the officers that they could search the yacht. Prior to searching, Farmer advised Kenneth of his constitutional rights and of his right to refuse to consent to the search. Kenneth then signed a constitutional rights waiver form and a consent to search form. Thereafter, Farmer conducted a search of the yacht accompanied by Kenneth.

Sergeant Lynn Jencon also testified regarding the circumstances surrounding the search and corroborated much of the testimony of Investigator Farmer. Jencon noted that Farmer advised Elizabeth that they were investigating a drowning death. Elizabeth responded that she was aware of the situation since the youth had been on the boat the previous night. Jencon further stated that after Kenneth signed the consent to search form he accompanied the officers as they conducted their search. According to Jencon, a green leafy material was found in a dresser in the bedroom near the kitchen. Jencon further stated that suspected contraband was also seized from a room occupied by Kenneth.

Based on the foregoing evidence, the trial court concluded that Kenneth’s consent to the search had not been voluntarily given. The court further concluded that his consent was vitiated by the threats of the officers that they could obtain a warrant and that he and the occupants of the boat would have to leave in the interim.

On appeal, the State contends that the trial court erroneously concluded that Kenneth’s consent to the search was not voluntarily given.

To support a search undertaken pursuant to consent, the State must prove by a preponderance of the evidence that the consent was voluntarily given. (People v. Holliday (1983), 115 Ill. App. 3d 141, 450 N.E.2d 355.) The voluntary character of the consent presents a question of fact to be resolved from a consideration of the totality of the circumstances. (Schneckloth v. Bustamonte (1973), 412 U.S. 218, 36 L. Ed. 2d 854, 93 S. Ct. 2041; People v. Griffin (1987), 158 Ill. App. 3d 46, 510 N.E.2d 1311.) A trial court’s determination regarding the voluntariness of the consent will not be disturbed on review unless it is clearly unreasonable. People v. Wahlen (1982), 111 Ill. App. 3d 194, 443 N.E.2d 728.

Here, the trial court had before it evidence of all the circumstances surrounding the consent, including the officers’ threats that they could obtain a warrant and that they would secure the premises in the interim. In addition, the court correctly noted that these threats were made on Labor Day weekend to people who were dwelling on the vessel for the weekend. While we might have decided this issue differently as a trial court, based on the record before us, we are unable to say that the instant trial court’s decision was clearly unreasonable.

Accordingly, the judgment of the circuit court of Will County is affirmed.

Affirmed.

BARRY, J., concurs.

PRESIDING JUSTICE HEIPLE,

dissenting:

Defendants, Eva Casazza, Elizabeth Chartier, and Kenneth Char-tier, were charged with the offenses of unlawful delivery of cannabis and unlawful possession of cannabis. Prior to trial, defendants filed a motion to suppress evidence seized during a search of Kenneth Char-tier’s yacht. Following a hearing, the trial court granted defendants’ motion to suppress, ruling that defendants’ consent to the search was not voluntary. The State appeals.

Testimony at the suppression hearing revealed that on September 4, 1989, Investigator Joseph Farmer of the Will County sheriff’s department was investigating the death of a 17-year-old drowning victim the night before. Investigator Farmer had received information that on the night of September 3, 1989, the victim and several other youths had gone to the Three Rivers Marina for a party on a yacht moored there. The information received also indicated that while on the yacht, the youths drank beer and smoked marijuana. Investigator Farmer and other investigators arrived at the marina on the afternoon of September 4, 1990, and approached the yacht in question. Defendant Elizabeth Chartier met the investigators on the dock and, after being informed of the purpose of their visit, consented to their entry onto the yacht.

Investigator Farmer then explained to Elizabeth that the sheriff’s department had been informed that the drowning victim and other youths had been on the yacht the night before drinking beer and smoking marijuana, and he requested her permission to search the yacht. Elizabeth told Investigator Farmer that the boat was in her husband’s name and that she would not consent to a search. At that point, Sergeant Jencon advised Elizabeth that the sheriff’s department had been in contact with the State’s Attorney’s office and that a search warrant could be obtained. Sergeant Jencon also informed her that the individuals on the yacht would have to leave the boat until the warrant was obtained.

As the investigators, Elizabeth and her guests were leaving the yacht, they encountered Kenneth Chartier on the dock. Investigator Farmer informed Kenneth of the information received by the sheriff’s department, the reason for their investigation, and their desire to search the boat with Kenneth’s consent. Kenneth inquired what would happen if he did not consent, and Investigator Farmer told him a warrant could be obtained. Kenneth then gave his consent for a search of the yacht. Kenneth was advised of his constitutional rights and his right to refuse to consent to the search, and he signed both a constitutional rights form and a consent to search form. Kenneth accompanied the investigators and they boarded the yacht. During the search, evidence was seized which formulated the basis of the criminal charge.

Following presentation of the foregoing evidence, the trial court determined that the consent to search form executed by Kenneth was not freely and voluntarily given. The trial court concluded that Kenneth’s consent was vitiated by the threats of the officers that they “would” obtain a search warrant and that the Chartiers and their guests would have to leave the yacht in the interim. The majority supports the trial court decision, stating that based on the evidence before the trial court, its decision was not clearly unreasonable and does not warrant disturbance. I disagree.

The State must prove by a preponderance of the evidence that consent was voluntarily given in order to support a search undertaken pursuant to a consent form. (People v. Holliday (1983), 115 Ill. App. 3d 141.) Voluntariness, as it relates to consent searches, is a question of fact to be determined from the totality of all of the circumstances under which consent was given. (Schneckloth v. Bustamonte (1973), 412 U.S. 218, 36 L. Ed. 2d 854, 93 S. Ct. 2041; People v. Griffin (1987), 158 Ill. App. 3d 46.) In this instance the circumstances reveal that Kenneth Chartier was properly informed of his rights and voluntarily gave signed consent to a search of his yacht.

The majority concludes that because the investigators informed defendants that a search warrant could be obtained and that the premises would be secured in the meantime, the trial court reasonably found that consent was not voluntary. However, it has been held that “securing a dwelling, on the basis of probable cause, to prevent the destruction or removal of evidence while a search warrant is being sought is not itself an unreasonable seizure of either the dwelling or its contents.” (Segura v. United States (1984), 468 U.S. 796, 810, 82 L. Ed. 2d 599, 612, 104 S. Ct. 3380, 3388.) The instant case involves a yacht which was being used as a dwelling for several persons over a holiday weekend; therefore, the reasoning of Segura is applicable. The sheriff’s department had received information indicating that defendants were hosting a party on their boat at which marijuana was present, and informed Kenneth of accepted procedures to ensure that any potential evidence was not removed from the yacht before a search warrant could be obtained. I do not believe this to be coercive so as to nullify Kenneth’s unambiguous, voluntary consent. Accordingly, I dissent.