author: JUSTICE McNAMARA

text:
    TRANS WORLD AIRLINES, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Willie Williams, Jr., Appellee).—TRANS WORLD AIRLINES, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Marcelo Lara, Appellee).
    First District (Industrial Commission Division)
    Nos. 1—88—3659WC, 1—88—3660WC cons.
    Opinion filed November 17, 1989.

      Stevenson, Rusin & Friedman, Ltd., of Chicago, for appellant.
    Leonard L. Leon, John T. Bowman, of Murges, Bowman & Corday, Ltd., both of Chicago, and Edward J. Kionka, of Murphysboro, for appellees.
   JUSTICE McNAMARA

delivered the opinion of the court:

Claimants, Willie Williams, Jr., and Marcelo Lara, sought workers’ compensation benefits for injuries sustained while working for respondent, Trans World Airlines (TWA), in Pennsylvania and Missouri, respectively. In Williams, an arbitrator found jurisdiction under United Airlines, Inc. v. Industrial Comm’n (1983), 96 Ill. 2d 126, 449 N.E.2d 119, and for a back injury awarded him $258.29 per week for 64% weeks as temporary total disability benefits, and $258.29 for 100 weeks for a 20% permanent partial disability. The Commission also found jurisdiction and affirmed the arbitrator’s decision.

In Lara, an arbitrator found jurisdiction and for a head and neck injury awarded him $320 per week for 31% weeks as temporary total disability benefits, and $282.25 per week for 150 weeks for a 30% permanent partial disability. The Commission, with one dissenting member, found jurisdiction and affirmed the arbitrator’s decision.

The circuit court found that the Commission had jurisdiction in both cases, since the Illinois employment contract had not ended. The court confirmed the Commission’s decisions as to jurisdiction and permanent disability, but set aside the Williams temporary disability award and remanded with instructions to review the parties’ stipulation and enter a finding and decision in accordance with the stipulation.

On appeal, TWA contends in both cases that the Commission erred in finding Illinois jurisdiction where claimants had been permanently transferred out of State, and that the finding of Illinois jurisdiction violates the due process clause, enforces an Illinois police statute extraterritorially, and thereby interferes with commerce among the States. The two cases have been consolidated on appeal.

Williams testified that on July 5, 1977, he began working for TWA at O’Hare Airport as a ramp serviceman. Prior to that, TWA interviewed Williams three times. He filled out an application; underwent a physical examination; attended an orientation talk; attended a training class; was fingerprinted, photographed and bonded; was issued an identification badge and an airport driver’s license; was issued an employee identification number; and became a member of the union.

On August 19, 1979, J.W. Cyr, manager of ground services for TWA at O’Hare, wrote to Williams, advising him that “a reduction in manpower requirements makes it necessary to furlough you from your present position.” He was directed to the union agreement’s provisions regarding displacement rights and was instructed to keep TWA advised of his current address. Williams requested a displacement in Pittsburgh and several other cities. Williams testified that had he not accepted the transfer, he would not have been able to continue working for TWA at O’Hare because they were cutting back personnel.

On August 30, 1979, Cyr wrote to Williams that he was to begin working in Pittsburgh:

“Pursuant to your request to exercise your system'displacement rights, it has been determined that a less senior employee exists at [Pittsburgh]; the point you selected. Your last day of work at O’Hare remains September 5, 1979. You are to report to G. Long, Manager-Ground Services at Pittsburgh. The report date is September 6,1979.”

Williams began work in Pittsburgh on October 7, 1979, following a medical leave of absence.

In Pittsburgh, Williams filled out State tax forms. He was issued a Pittsburgh airport driver’s license. He became a member of a different local union. He was issued new clothing. He was not fingerprinted or photographed; he did not receive a new identification badge; he did not take a physical examination; and he had no interview. Williams retained his seniority status. He did not receive any new training, and he performed the same basic functions. His family did not move to Pittsburgh. They remained in Chicago, where Williams visited them. Williams retained other personal contacts in Illinois.

On February 12, 1981, Williams was advised by TWA that he was again being “furloughed from [his] position with” TWA due to a reduction in force. He was again referred to his union displacement rights and was instructed to advise personnel “of any address changes so that we may reach you in the event re-employment opportunities arise.” Williams indicated on a form that he wished to take a local furlough as of March 1,1981.

On February 18, 1981, however, Williams injured his back at work in Pittsburgh. In March 1981, Williams moved back in with his wife and child in Chicago. He continued to receive medical treatment in Chicago. Williams received Pennsylvania workers’ compensation benefits. TWA and Williams have stipulated to the period of lost time, wages earned, and benefits paid.

In Lara’s case, Leo E. Spoileder testified for Lara that he was a union committeeman representing the employees in a collective bargaining agreement. The agreement, effective October 31, 1978, until June 1981, covered TWA’s domestic employees, including ramp servicemen and mechanics. The seniority system provides that if the employee should be furloughed or if the company determines there is a lesser number of employees needed in one area or another, the employee has the right to exercise seniority either by displacing a junior employee, or by taking a layoff “and go to the street.” If he chooses to displace, he can go anywhere in the United States where TWA has employees and exercise seniority. He is assured of a job before he leaves Illinois. When he gets to the new locality, he reports to a supervisor designated by TWA in a letter. He is not treated as a new employee by TWA. No interview is required; no physical examination is required; he cannot be denied employment at TWA’s discretion; and he retains all seniority, pension and vacation rights. There is no interruption in his employment service with TWA. If a position in his classification opens up, he can transfer back to O’Hare.

Lara testified that he was hired by TWA at O’Hare on May 5, 1979, as an aircraft mechanic. On March 17, 1981, his supervisor, Roy S. Davis, gave Lara a letter of furlough. It stated: “[D]ue to a reduction of flight activity at O’Hare, this is to advise that you will be furloughed from your present job classification of Aircraft Mechanic, at the end of your shift on Sunday, April 05, 1981. You are requested to advise this office, in writing, no later than three /3/ work days of this notification, the point(s) on the system you wish to exercise your seniority. It is suggested you review the union contract regarding your rights during a reduction in force.”

On March 26, 1981, Lara wrote to Davis: “After receiving my furlough letter, I have decided to displace to St. Lotus as an aircraft mechanic. I would also like to have my recall rights back to Chicago as an aircraft mechanic.”

On March 30, 1981, Davis wrote to Lara:

“As a result of your right to exercise your mechanic seniority, this is to advise that will [sic] transfer to St. Louis, as an Aircraft Mechanic. Since you will be on vacation the week of March 30, 1981, you are requested to report to Mr. E. Sasseen, Manager-Maintenance, at 0730 hours on Thursday, April 09, 1981.
Prior to leaving Technical Services at O’Hare, you are required to clean out your personal locker, return all items on loan back into Stores, return the city of Chicago security badge and remove the ORD sticker from your vehicle(s).
If there is anything I can do for you during this transition period, please do not hesitate contacting me at any time.”

Lara testified that before he left O’Hare for St. Louis, he was assured of a job. When he arrived in St. Louis, he introduced himself to the general foreman of TWA and was put to work right away. He was not interviewed; nor did he have a physical examination. He had exercised his recall rights and intended to transfer back to Chicago if anything opened up.

On June 3, 1981, Lara was injured in an accident at work in St. Louis. The wheel well snapped shut on his neck. He suffered a skull fracture, facial lacerations and neck contusions. He was hospitalized several weeks. He returned to Chicago in late June 1981, where he continued to receive medical care. Lara received Missouri workers’ compensation benefits, for which the Illinois arbitrator gave credit to TWA. On January 28, 1982, Lara returned to his regular work in St. Louis. At the hearing, he was still working in Missouri and still commuting to Chicago to stay with his family.

TWA contends that the Commission erred in finding an Illinois employment relationship conferred jurisdiction upon it. The Illinois Workers’ Compensation Act (Ill. Rev. Stat. 1985, ch. 48, par. 138.1 et seq.) has an extraterritorial effect. (United Airlines, Inc. v. Industrial Comm’n (1983), 96 Ill. 2d 126, 449 N.E.2d 119; F & E Erection Co. v. Industrial Comm’n (1987), 162 Ill. App. 3d 156, 514 N.E.2d 1147.) The Act covers employees who are “in the service of another under any contract of hire, express or implied, oral or written, including persons whose employment is outside of the State of Illinois where the contract of hire is made within the State of Illinois.” (Ill. Rev. Stat. 1981, ch. 48, par. 138.1(b)(2).) The issue is a question of fact for the Commission. (United Airlines, Inc. v. Industrial Comm’n (1983), 96 Ill. 2d 126, 449 N.E.2d 119; F & E Erection Co. v. Industrial Comm’n (1987), 162 Ill. App. 3d 156, 514 N.E.2d 1147.) The place where the last act necessary to give validity to the contract occurs is the place where the contract is made. (Youngstown Sheet & Tube Co. v. Industrial Comm’n (1980), 79 Ill. 2d 425, 404 N.E.2d 253.) We need not rely solely on a technical determination of the last act necessary to give validity to the contract. The Commission may look to where the totality of the arrangements for reemployment occurred. Youngstown Sheet & Tube Co. v. Industrial Comm’n (1980), 79 Ill. 2d 425, 404 N.E.2d 253; United States Steel Corp. v. Industrial Comm’n (1987), 161 Ill. App. 3d 437, 510 N.E.2d 452.

In United Airlines, the court held that Illinois had jurisdiction after reviewing numerous factors which might indicate where the totality of the arrangements for reemployment occurred. There, the employee requested a voluntary transfer from Illinois to California. Upon transferring, he did not undergo the same extensive hiring process he had undergone when originally hired in Illinois. His employee identification number remained the same, as did his seniority status; and if he failed to successfully complete a 90-day probation period in California, he had the right to resume his former duties in Illinois. Within two years of his transfer, he was injured.

In reviewing similar factors here, we find the facts supporting Illinois jurisdiction even stronger than in United Airlines. Both Lara and Williams worked continuously for TWA, with the only interruption being regular vacation and medical absence. (See United Airlines, 96 Ill. 2d 126, 449 N.E.2d 119 (Illinois jurisdiction where employment continuous); cf. Youngstown Sheet & Tube Co., 79 Ill. 2d 425, 404 N.E.2d 253 (no Illinois jurisdiction where three months’ unemployment and seeking work elsewhere interrupted Illinois and Indiana employment).) Both Lara and Williams were told by TWA they had to either request a transfer or accept a mandatory furlough or layoff. TWA then instructed them by letter to report, immediately after the last day of work in Illinois, to the new State, even identifying the new supervisor to whom they were to report for initial work duties. Williams was instructed that his last work day at O’Hare was September 5, 1979, and he was “to report to *** Pittsburgh. The report date is September 6, 1979.” Lara was instructed that following his vacation he was to report to St. Louis on April 9, 1981.

Lara’s instructions included the comment that he should contact his Illinois supervisor authoring the letter if there “is anything I can do for you during this transition period.” Thus, there was no cessation of employment, merely a transition between two supervisors or locations. Consistent with this construction, Spoileder testified that the transferring employee is assured of a job before he leaves Illinois. When he arrives at the new locality, he simply reports to the designated supervisor. He is not treated as a new employee by TWA. He cannot be denied employment at the discretion of TWA. Williams, for example, did not receive new training in Pittsburgh and performed the same basic duties as he performed in Chicago. Lara reported to the St. Louis supervisor and began work.

In addition, the transfer of Lara and Williams was not permanent, since they retained rights of recall and TWA continued operating out of O’Hare airport in Chicago. In fact, in order to assure TWA’s ability to recall the employee to Illinois when a job opened up again, TWA wrote to both claimants that they must keep the personnel office advised of any address changes. See United Airlines, 96 Ill. 2d 126, 449 N.E.2d 119 (Illinois jurisdiction where employee retained right to return to Chicago); cf. Youngstown Sheet & Tube Co., 79 Ill. 2d 425, 404 N.E.2d 253 (no Illinois jurisdiction where Illinois plant permanently shut down, no temporary cessation of work); United States Steel Corp., 161 Ill. App. 3d 437, 510 N.E.2d 452 (no Illinois jurisdiction where Illinois plant ceased operation, and employee permanently barred from expectation of eventual return to Illinois).

Furthermore, Lara and Williams both accepted the out-of-State assignments while still working for TWA in Illinois. (Cf. Youngstown Sheet & Tube Co., 79 Ill. 2d 425, 404 N.E.2d 253; United States Steel Corp., 161 Ill. App. 3d 437, 510 N.E.2d 452 (no Illinois jurisdiction where employees accepted new jobs while in Indiana).) TWA guaranteed Lara and Williams the out-of-State job assignments. Cf. Youngstown Sheet & Tube Co., 79 Ill. 2d 425, 404 N.E.2d 253; United States Steel Corp., 161 Ill. App. 3d 437, 510 N.E.2d 452 (no Illinois jurisdiction where out-of-State jobs not guaranteed).

Additionally, neither claimant was required to be interviewed at the new jobsites. (Cf. Youngstown Sheet & Tube Co., 79 Ill. 2d 425, 404 N.E.2d 253; United States Steel Corp., 161 Ill. App. 3d 437, 510 N.E.2d 452 (no Illinois jurisdiction where employees had interviews at new jobs in Indiana).) Neither employee was required to undergo a physical examination at the new jobsite. (Cf. Youngstown Sheet & Tube Co., 79 Ill. 2d 425, 404 N.E.2d 253; United States Steel Corp., 161 Ill. App. 3d 437, 510 N.E.2d 452 (no Illinois jurisdiction where employees required to undergo physical examinations at new jobs in Indiana).) Lara testified he did not receive a new identification badge in Pittsburgh; both employees merely received new airport drivers’ licenses. (Cf. Youngstown Sheet & Tube Co., 79 Ill. 2d 425, 404 N.E.2d 253; United States Steel, 161 Ill. App. 3d 437, 510 N.E.2d 452 (no Illinois jurisdiction where employees received new employee identification numbers at Indiana job sites).) Finally, both claimants were injured within a relatively short period of time after transferring. Lara was injured within two months, while Williams was injured within 16 months of his transfer. See United Airlines, 96 Ill. 2d 126, 449 N.E.2d 119 (Illinois jurisdiction where employee injured within two years of transfer; cf. Youngstown Sheet & Tube Co., 79 Ill. 2d 425, 404 N.E.2d 253 (no Illinois jurisdiction where employee injured 12 years after transfer); United States Steel Corp., 161 Ill. App. 3d 437, 510 N.E.2d 452 (no Illinois jurisdiction where employee injured 20 years after transfer).

We conclude that the record reveals overwhelming evidence to support the Commission’s finding of Illinois jurisdiction. While Lara’s work injury occurred in Missouri and Williams’ work injury occurred in Pennsylvania, their contracts of hire were made in Illinois. The totality of arrangements for their change in employment conditions occurred in Illinois. The Commission had jurisdiction to entertain claimants’ application for adjustment of claims.

TWA relies on the fact that the employees, upon leaving Chicago, had to return their O’Hare driver’s licenses and parking stickers, and O’Hare uniforms. It would make little sense to use O’Hare insignia at St. Louis or Pittsburgh airports. This evidence fails to sufficiently undermine the other evidence presented here to compel a finding that the totality of arrangements for reemployment took place outside Illinois. Similarly, the fact that the claimants filled out tax forms in the new States does not alter our conclusion. Missouri’s and Pennsylvania’s payment of worker’s compensation benefits also fails to preclude Illinois jurisdiction. See United Airlines, 96 Ill. 2d 126, 449 N.E.2d 119 (Illinois jurisdiction notwithstanding California’s payment of disability benefits).

TWA contends that under the “significant contacts” test, Illinois’ jurisdiction here would violate the due process clause of the Constitution. TWA relies heavily on McCluney v. Joseph Schlitz Brewing Co. (8th Cir. 1981), 649 F.2d 578, aff’d (1981), 454 U.S. 1071, 70 L. Ed. 2d 607, 102 S. Ct. 624, where the 8th Circuit found the employment relationship’s most significant contacts were in Wisconsin, and not in Missouri, where the original contract of hire had been made 19 years prior to the allegedly wrongful termination and the filing of a statutory action in Missouri. The McCluney court found that apart from the employee’s post-termination move to Missouri, he had had no real contact with the State for five years. Schlitz closed its Kansas City plant in September 1973 and sold the plant in December 1973, nearly two years prior to the employee’s termination. (McCluney, 649 F.2d at 582-83.) Thus, while the original contract of hire was in Missouri in 1956, the current employment contract, i.e., involving the employee’s promotion, was arranged in North Carolina and Wisconsin and was performed in Wisconsin. At the time of performance, the employee was a Wisconsin resident, and Sehlitz was a Wisconsin corporation. The allegedly wrongful termination took place in Wisconsin, and the employee then returned to North Carolina, where he asked for a letter of service required for bringing suit under the Missouri statute. Only then did he move back to Missouri.

The present claims differ drastically from McCluney. In addition to the significant evidence already discussed, establishing that the contracts of hire and totality of arrangements for reemployment occurred in Illinois, both Lara and Williams retained personal contacts with Illinois. Lara’s attorney made an offer of proof that Lara’s family remained in Illinois; that he commuted back to Chicago weekly to be with them; that he retained his Illinois voter’s registration; and that he retained all cultural activities in Illinois, including temple affiliations. Following his Missouri injury, Lara returned to Chicago for medical care for seven months until he was permitted to return to work in Missouri. At the time of the hearing, he was still commuting to Chicago weekly. Williams testified that his family remained in Chicago, where he visited them throughout his Pennsylvania employment. He retained an Illinois license plate on his car; an Illinois driver’s license; Illinois car insurance; and returned to Illinois for medical care following his injury in Pennsylvania. He has lived in Illinois since the Pennsylvania injury. Unlike McCluney, the claimants here, and the employment relationships themselves, retained substantial connections to the State of Illinois. No violation of the due process clause exists in this case.

TWA also contends that a finding of Illinois jurisdiction enforces an Illinois police power statute extraterritorially on employment which is permanently and exclusively in other States, based on the mistaken finding that the Illinois contract of hire continued. TWA argues that workers’ compensation legislation is an exercise of police power, and not part of the contract of employment. (See Grasse v. Dealer’s Transport Co. (1952), 412 Ill. 179, 106 N.E.2d 124.) We reject TWA’s conclusions. The Illinois Workers’ Compensation Act clearly was designed to have an extraterritorial effect. (United Airlines, 96 Ill. 2d 126, 449 N.E.2d 119.) While the constitutionality of the Act is based on the State’s police power, and not on a contract theory (Grasse v. Dealer’s Transport Co. (1952), 412 Ill. 179, 106 N.E.2d 124), the State’s interest is not strictly confined within its physical boundaries and may depend upon some substantial connection between the State and the particular employment relationship. (Arnold v. Industrial Comm’n (1960), 21 Ill. 2d 57, 171 N.E.2d 26.) Our supreme court has carefully explained that any exclusive application of the theory of using an analysis similar to those governing questions concerning an individual’s domicile is not consistent with the contractual basis of jurisdiction specified by our Workers’ Compensation Act, and “any change therein will have to be legislatively mandated.” United Airlines, 96 Ill. 2d 126, 131, 449 N.E.2d 119, 121.

TWA finally contends that the enforcement of Illinois statutes on employment exclusively located in other States places TWA in the position of conflicting demands between Illinois and the other States, and therefore, interferes with commerce among the States. In making that argument, TWA relies on United Airlines, Inc. v. Illinois Commerce Comm’n (1965), 32 Ill. 2d 516, 207 N.E.2d 433. TWA failed to raise this argument before the Commission, and thus, has waived it on appeal. (Albert Mojonnier, Inc. v. Industrial Comm’n (1968), 41 Ill. 2d 128, 242 N.E.2d 184.) Moreover, a State may regulate matters of local concern even though the regulation has some impact on interstate commerce where it safeguards an obvious State interest and the local interests at stake outweigh whatever national interest there might be in the prevention of the State restrictions. (United Airlines, Inc. v. Illinois Commerce Comm’n (1965), 32 Ill. 2d 516, 207 N.E.2d 433.) We have already held that Illinois retains substantial interests in the employment relationships here. TWA has presented no evidence in the record before us that the extraterritorial enforcement of the Illinois workers’ compensation laws will unduly burden interstate commerce, and we will not look beyond this record. See Chambers v. Industrial Comm’n (1985), 139 Ill. App. 3d 550, 487 N.E.2d 1142.

Accordingly, the finding of Illinois jurisdiction is upheld. The judgment of the circuit court of Cook County in Lara, upholding the Commission’s award, is affirmed. The judgment in Williams, confirming the Commission’s award, except for the temporary total disability award, which was remanded for entry of an award consistent with the parties’ stipulation (which direction Williams does not challenge or even address), is affirmed in its entirety.

Judgments affirmed; cause involving Williams is remanded to the Commission with directions.

BARRY, P.J., and WOODWARD, McCULLOUGH, and LEWIS, JJ., concur.


source: Caselaw Access Project

author: JUSTICE BUCKLEY

license: Public Domain

text:
    AMERICAN INSTITUTE OF REAL ESTATE APPRAISERS OF THE NATIONAL ASSOCIATION OF REALTORS, Plaintiff-Appellee, v. NATIONAL REAL ESTATE ASSOCIATION, INC., et al., Defendants (William R. Fowler, Jr., Defendant-Appellant).
    First District (1st Division)
    No. 1—88—1945
    Opinion filed November 20, 1989.

      Terrance J. Coughlin, of Chicago, for appellant.
    Matthew J. Iverson, of Burditt, Bowles, Radzius & Ruberry, Ltd., of Chicago, for appellee.
   JUSTICE BUCKLEY

delivered the opinion of the court:

This appeal arises from an action for injunctive relief brought by the American Institute of Real Estate Appraisers (plaintiff) against National Real Estate Association (NREA), Trihedron International Assurance, Limited (Trihedron), and William Fowler (defendant) predicated upon violations of the Uniform Deceptive Trade Practices Act (Ill. Rev. Stat. 1987, ch. 121½, par. 311 et seq.) and the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1987, ch. 121½, par. 261 et seq.). The circuit court entered a permanent injunction against defendant and Trihedron after they failed to appear and subsequently denied defendant’s motion to modify the injunction, which he had filed more than 30 days from the entry of the permanent injunction.

On appeal of the circuit court’s denial of his motion under Supreme Court Rule 307(a) (107 Ill. 2d R. 307(a)), which allows an appeal from an interlocutory order of court refusing to dissolve or modify an injunction, defendant contends that the circuit court erred in holding that it lacked jurisdiction to grant the requested relief. Additionally, defendant argues the merits of the action, contending that the injunction should be rescinded or modified because plaintiff did not have standing to seek injunctive relief and because the injunction is vague and overbroad. For reasons set forth below, defendant’s contentions regarding the merits of this action are not properly before this court and will not be addressed in this appeal. As to the circuit court’s jurisdictional ruling, we reverse.

On March 12, 1987, plaintiff served defendant with a summons and complaint of its action seeking “a temporary restraining order and therefore preliminary and permanent injunction against [NREA], [Trihedron], [defendant], and anyone acting by or on their behalf, from offering errors and omissions insurance policies to real estate appraisers in a manner violative of the Illinois Uniform Deceptive Trade Practices Act” and the “Illinois Consumer Fraud and Deceptive Business Practices Act.” On March 31, 1987, defendant was served with the circuit court’s order entering a preliminary injunction against him following his failure to appear after proper notice of the hearing on plaintiff’s preliminary injunction motion.

Defendant again failed to appear at the hearing on plaintiff’s motion for a permanent injunction on November 30, 1987, despite proper notice of the hearing. On December 1, 1987, the circuit court issued a default judgment against defendant and Trihedron and continued the action as to NREA after it appeared and defended the action. The permanent injunction entered against defendant, similar to the language in the preliminary injunction previously served upon him, provided:

“[Defendant], his agents and attorneys and all persons acting in concert and participation with him, are permanently enjoined from offering, either directly or indirectly, errors and omissions policies to real estate appraisers.”

After defendant was served with the permanent injunction, he appeared in the circuit court on March 11, 1988, at which time the circuit court granted defendant leave to file a motion to modify or rescind the December 1, 1987, injunction. Following defendant’s written motion and supporting affidavit, the circuit court denied defendant’s motion on May 23,1988.

A permanent injunction is a “final judgment,” subjecting it to the 30-day time limits for filing post-trial motions and notices of appeal under the Illinois Code of Civil Procedure and supreme court rules. (Bundy v. Church League of America (1984), 125 Ill. App. 3d 800, 805, 466 N.E.2d 681, 685; Walker v. Board of Police & Fire Commissioners (1979), 77 Ill. App. 3d 958, 960, 397 N.E.2d 2, 4; Ill. Rev. Stat. 1987, ch. 110, par. 2—1203; 107 Ill. 2d Rules 303, 304(a).) Under the general rule relating to final judgments, a circuit court is divested of jurisdiction to grant post-trial relief after 30 days unless a party, who has filed a section 2—1401 petition within two years of the entry of the judgment, satisfies that section’s “due diligence” and “meritorious defense” requirements. (Burton v. Estrada (1986), 149 Ill. App. 3d 965, 971, 501 N.E.2d 254, 258-59; Lofendo v. Ozog (1983), 118 Ill. App. 3d 237, 241, 454 N.E.2d 806, 810; Ill. Rev. Stat. 1987, ch. 110, par. 2—1401.) To satisfy the “due diligence” requirement, a movant must show that the judgment was not entered due to his own inexcusable neglect and that the movant was diligent in presenting the post-judgment petition. Burton, 149 Ill. App. 3d at 971, 501 N.E.2d at 259.

An exception to the above rule is that circuit courts have jurisdiction, or inherent power, to modify or dissolve their own injunctions after the lapse of the 30-day limit. (Bundy, 125 Ill. App. 3d at 806, 466 N.E.2d at 686; Field v. Field (1967), 79 Ill. App. 2d 355, 359, 223 N.E.2d 551, 553.) The circuit court’s jurisdiction in these circumstances, however, is limited to determining whether changes in the applicable law or facts since the rendition of the judgment warrant a modification of the terms of the injunction. It does not include the power to inquire into the propriety of the procedural and substantive aspects of the judgment as to conditions existing at the time of the entry of the judgment. Bundy, 125 Ill. App. 3d at 806-07, 466 N.E.2d at 686-87; People v. Mulgrew (1974), 19 Ill. App. 3d 327, 331, 311 N.E.2d 378, 382; Field, 79 Ill. App. 2d at 358-60, 223 N.E.2d at 553.

In the case at bar, defendant has failed to appeal within the 30-day period for post-judgment relief after proper notice of the judgment. It is apparent that defendant is not entitled to post-judgment relief under section 2—1401: Not only has defendant failed to file a section 2—1401 petition in this action, he has not attempted to establish section 2—1401’s “due diligence” prerequisite that his failure to defend the action or appeal the judgment is not attributable to his own inexcusable neglect.

Nonetheless, defendant contends that he is entitled to relief based upon the circuit court’s inherent power to modify its own injunction. As stated above, such relief is dependent upon a showing of a change in facts or law since the issuance of the injunction to warrant a modification of the injunction’s terms. The circuit court determined that defendant did not demonstrate a change in facts or law which would warrant a modification of the injunction’s prohibition against defendant’s ever offering errors and omissions insurance to real estate appraisers. In reviewing the circuit court’s ruling, we are mindful that a circuit court’s decision to grant or deny injunctive relief is discretionary and should not be reversed absent an abuse of discretion. Talbert & Mallon, P.C. v. Carlson (1988), 170 Ill. App. 3d 698, 525 N.E.2d 141; Toushin v. City of Chicago (1974), 23 Ill. App. 3d 797, 320 N.E.2d 202.

Defendant argues that he demonstrated a change in facts to warrant a modification of the injunction’s terms, since the only allegations in plaintiff’s complaint against him are directed at his association with Trihedron as authorized representative and his supporting affidavit indicates that “as of and prior to March 1, 1988, NREA no longer promotes Trihedron errors and omissions coverage to NREA members.” Plaintiff’s complaint discloses allegations that NREA’s promotional materials in connection with its soliciting real estate appraisers for errors and omissions policies underwritten by Trihedron, an undercapitalized, offshore carrier, constituted misleading and false advertising. It sought to enjoin NREA, Trihedron, and defendant, as NREA’s agent and Trihedron’s authorized representative, from future deceptive practices in the offering of errors and omissions insurance policies.

By asserting that he had discontinued his relationship with Trihedron and his promotion of those materials since the rendition of the judgment, defendant here attempted to show a change in the very facts which formed the basis of the complaint against him and which underlie the permanent injunction. We find that the circuit court abused its discretion in finding these changes in facts would not warrant a modification of the injunction and in failing to conduct an evidentiary hearing to determine the propriety of defendant’s claims. Without delving into the appropriate relief to be given upon a finding of a change in circumstances, as should be properly left for the circuit court, we remand this case to the circuit court with instructions to conduct an evidentiary hearing consistent with this opinion.

Reversed and remanded with directions.

MANNING, P.J., and O’CONNOR, J., concur.


author: JUSTICE O’CONNOR

text:
    MICHAEL SALAZAR, Plaintiff-Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Appellee.
    First District (1st Division)
    No. 1—88—2977
    Opinion filed November 20, 1989.
    Rehearing denied December 18, 1989.

      Murphy & Murphy, of Chicago (Jerome T. Murphy, of counsel), for appellant.
    Taylor, Miller, Sprowl, Hoffnagle & Merletti, of Chicago (James J. Hoffnagle, of counsel), for appellee.
   JUSTICE O’CONNOR

delivered the opinion of the court:

This is an appeal from a summary judgment for defendant in an action brought by plaintiff to recover medical payment benefits under certain policies of automobile insurance issued by defendant.

The plaintiff, Michael Salazar, while a pedestrian, was struck by a car and injured. As a result of his injuries, he incurred $28,418.15 in medical expenses. Defendant, State Farm Mutual Automobile Insurance Company (State Farm), had issued three policies of automobile liability insurance to members of plaintiff’s family, each of which provided medical payments coverage with limits of $25,000.

All three policies in issue contain the following provisions:

“(1). If There Are Other Medical Payments Coverages
* * *
4. If other vehicle medical payments coverage applies to bodily injury sustained by a pedestrian, this coverage is excess.
(2). Medical Expenses
We will pay reasonable medical expenses, for bodily injury caused by accident, for services furnished within one year of the date of the accident. These expenses are for necessary medical, surgical, x-ray, dental, ambulance, hospital, professional nursing and funeral services, eyeglasses, hearing aids and prosthetic devices.”

State Farm paid the entire amount of plaintiff’s medical expenses, totalling $28,418.15. Of this sum, $25,000 was paid under policy No. 8333 896—13, issued to plaintiff’s sister, and $3,418.15 was paid under policy No. 8419 237—13, issued to plaintiff’s father. Defendant declined to pay the remainder of $21,581.85 under policy No. 8419 237—13 and the sum of $25,000 under policy No. 8498 043—13.

Plaintiff then brought this action seeking payment of the remaining $21,581.85 of medical coverage available under policy No. 8419 237—13 and $25,000 of medical coverage available under policy No. 8498 043—13 issued to plaintiff’s father. The parties filed cross-motions for summary judgment, and following a hearing, summary judgment was entered in favor of defendant and against plaintiff. Plaintiff now brings this appeal.

Plaintiff’s principal argument is that as the premiums had been paid on each of the three policies issued to members of his family, he was entitled to recover the full amount of the medical payments coverage under all three policies. He asserts that by retaining premiums on three separate policies while refusing to pay valid claims under the policies, State Farm has, in effect, been unjustly enriched. Plaintiff argues that as a named insured under each of the policies, he is entitled to “stack” the coverages under each policy, thereby recovering the full amount under each policy.

With respect to the exclusionary clause, plaintiff argues that the language is ambiguous and, therefore, under Kaufmann v. Economy Fire & Casualty Co. (1979), 76 Ill. 2d 11, 17, 389 N.E.2d 1150, and Glidden v. Farmers Automobile Insurance Association (1974), 57 Ill. 2d 330, 336, 312 N.E.2d 247, the clause must be construed in his favor so as to “stack” the primary coverage under each of the three policies. Plaintiff maintains that in other portions of the policy, State Farm explicitly limited its liability for multiple coverage, and if State Farm had desired to limit its liability to actual loss suffered or medical expenses incurred, it could have done so by the use of proper limiting language.

Plaintiff makes specific reference to section 3 of the policy, related to “other underinsured motor vehicle coverage,” in which the language of the policy differentiates between coverage available on “policies issued by us to you” and coverage available “from other sources.” He claims that defendant’s failure to similarly differentiate which policy provides primary coverage for medical payments where there are multiple policies held by the insured is what creates an ambiguity here.

We have reviewed the provision to which plaintiff refers and disagree with plaintiff’s assertion that the exclusionary clause in the three policies is ambiguous. While State Farm chose to differentiate between other coverage available from the same insurer and coverage available from other sources with respect to uninsured motor vehicle coverage, it chose not to use similar language with respect to medical expense payments. Defendant instead chose to provide a complete exclusion under each policy if other medical payments coverage was available under any other policies. It makes no difference, in fact, which of the three policies is regarded as the primary policy, because under the policies, all of plaintiff’s medical bills would be covered up to the maximum coverage of $75,000. We do not believe that the medical payments limitation here is ambiguous, and therefore, plaintiff is not entitled to multiple recovery under the three policies.

The issue raised by the instant appeal was first addressed by Illinois courts in Laurie v. Holland America Insurance Co. (1961), 31 Ill. App. 2d 487, 176 N.E.2d 678. The plaintiff in Laurie had two policies of automobile liability insurance with the defendant insurance carrier. Both policies had medical payments coverage and a provision whereby the insurer agreed to pay all reasonable medical expenses incurred within a year of an accident. Both policies also contained a clause providing that “ ‘the insurance shall be excess over any other valid and collectible automobile medical payments insurance available to an insured under any other policy.’ ” Laurie, 31 Ill. App. 2d at 439.

The court in Laurie held that the insured was not entitled to be paid twice for the medical bills incurred, the basis for the court’s opinion being that the policy was a contract of indemnity under which the insured was entitled to only one recovery. (Laurie, 31 Ill. App. 2d at 445, 449.) Plaintiff here contends, however, that the rationale of Laurie is no longer applicable in light of Strzelczyk v. State Farm Mutual Automobile Insurance Co. (1986), 113 Ill. 2d 327, 497 N.E.2d 1170.

While it is true that the court in Strzelczyk rejected the indemnity analysis of Laurie (Strzelczyk, 113 Ill. 2d at 330), Strzelczyk is factually distinguishable from the instant appeal. In Strzelczyk, the two claimants were injured on a CTA bus which did not have medical payments coverage for its occupants. The mother and daughter claimants resided in the same household and each had a policy of insurance with State Farm. Each claimant made a claim under her own and the other person’s policy.

The clause intended to prevent double payment of medical bills provided:

“2. *** If a temporary substitute car, a non-owned car or a trailer has other medical payments coverage on it this coverage is excess.”

The supreme court held that the claimants were entitled to the second recovery as neither policy contained a provision excluding or limiting full payments of any medical expenses incurred. Strzelczyk, 113 Ill. 2d at 331-32.

Unlike the policies involved in Strzelczyk, however, the policies involved here do contain an applicable limitation. The plaintiff was a pedestrian when he was hit by a car, and all three policies provide that if other vehicle medical payments coverage applies to the injuries sustained by a pedestrian, their respective medical payments coverage is excess. At the trial court observed, the clause in Strzelczyk focused upon coverage which would be afforded by the nonowned vehicle in which an insured was injured, whereas the clause in issue here focuses upon coverage available to an insured in his capacity as a pedestrian. Since the plaintiff was a pedestrian and since he has received full medical payment under one of the policies, we concur with the trial court’s conclusion that defendant was liable only for the excess under the other two policies.

Plaintiff’s argument that denial of the full amount under each of the three policies disregards his right to “stack” his medical coverage is not well taken. Plaintiff’s policies clearly do “stack” in that he received $25,000 under policy No. 8333 896—13 and the remaining $3,418.15 under policy No. 8419 237—13. The issue here is not whether the policies stack, but whether they entitle plaintiff to duplicate payment of his medical expenses.

This issue was addressed in Glidden v. Farmers Automobile In surance Association (1974), 57 Ill. 2d 330, 312 N.E.2d 247. The court in Glidden considered whether medical payments coverage of $2,000 under each of three policies could be stacked to provide coverage of $6,000 and held that it could be stacked, but “not to exceed, however, the total damages sustained.” (Glidden, 57 Ill. 2d at 337.) The view that stacking, while permissible, is limited to the recovery of actual damages is also supported by numerous cases from foreign jurisdictions. (See, e.g., Ruder v. West American Insurance Co. (1972), 151 Ind. App. 433, 434-35, 280 N.E.2d 68, 69; Burns v. Employers’ Liability Assurance Corp. (1965), 205 Pa. Super. 389, 395, 209 A.2d 27, 31.) Glidden makes it clear that plaintiff’s policies here can be stacked to the extent that they cover any medical expenses he may have incurred, up to the collective policy limits of $75,000, but not to the extent that they provide duplicate payments.

Plaintiff also contends that State Farm failed to plead the affirmative defense of an excess policy clause in its answer, thereby waiving the defense. Plaintiff cites section 2—613(d) of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—613(d)), which provides that any affirmative defense must be plainly set forth in the answer. The purpose of this provision is to prevent unfair surprise at trial; however, it does not place a restriction on motions for summary judgment. (Chaplin v. Geiser (1979), 79 Ill. App. 3d 435, 438, 398 N.E.2d 628.) Under Illinois law, a defendant may file a motion for summary judgment at any time, even prior to filing an answer, and numerous cases have held that an affirmative defense raised in such a motion is timely and may be considered even if not raised in defendant’s answer. See, e.g., Strzelczyk v. State Farm Mutual Automobile Insurance Co. (1985), 138 Ill. App. 3d 346, 349, 485 N.E.2d 1230; Chaplin v. Geiser (1979), 79 Ill. App. 3d 435, 438, 398 N.E.2d 628.

Plaintiff also seeks attorney fees and costs pursuant to section 155 of the Illinois Insurance Code (Ill. Rev. Stat. 1987, ch. 73, par. 767), which provides such relief upon a finding of vexatious and unreasonable delay in settling an insurance claim. On the record before us, we decline to award fees and costs, as we are not persuaded that defendant’s defense of this matter in any way constituted vexatious and unreasonable conduct.

For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.

Judgment affirmed.

MANNING, P.J., and BUCKLEY, J., concur.


author: JUSTICE RIZZI

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ALBERT BELL, Defendant-Appellant.
    First District (3rd Division)
    No. 1—86—2921
    Opinion filed November 22, 1989.

      Mary Ellen Dienes, of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund and Sharon L. Heath, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE RIZZI

delivered the opinion of the court:

Defendant-appellant, Albert Bell (Bell), was tried by a jury and found guilty of murder and armed robbery. He was sentenced to 40 years’ imprisonment on the murder conviction. On appeal, Bell argues that the trial court erred in (1) refusing to quash his arrest where the evidence demonstrated that the police lacked probable cause to arrest him; (2) refusing to suppress his statements to law enforcement officers and the knife found on his person at the time of his arrest; (3) allowing the use of his codefendant’s statement where the codefendant was unavailable for cross-examination by the defense; and (4) refusing to submit to the jury instructions on self-defense and voluntary manslaughter. We affirm.

On April 15, 1983, the police found Stanley Teer’s body in an abandoned apartment building on West 60th Street in Chicago. Teer’s death had been caused by multiple stab wounds. On April 15, the police arrested Curtis Bell, the defendant’s brother, in connection with Teer’s death. Based upon Curtis Bell’s admissions, the police arrested Albert Bell on April 17, 1983. Defendant ultimately made a statement to the police implicating himself and his brother, Curtis, in Teer’s murder.

Prior to trial, both Albert and Curtis Bell moved to suppress their statements. Curtis Bell testified that on April 15, 1983, after the police arrested him and read the Miranda warnings, he replied, in response to their questions, that he had nothing to say and requested the presence of a lawyer. The trial court found that the nonarresting officers who subsequently questioned and obtained statements from Curtis did so in violation of his Miranda rights. Therefore, the trial court granted Curtis’ motion to suppress. In a separate appeal, this court affirmed that ruling.

In response to Albert Bell’s motion to suppress, the State presented the testimony of Detectives Joseph Gandurski and Thomas J. O’Connor, and an assistant State’s Attorney. According to the detectives, on April 17, 1983, they arrested Albert Bell on the street at 6009 South Honor rights, did not invoke his right to remain silent and did not request counsel. Rather, Bell told the police various accounts of what transpired on April 17, 1983. During the hearing on his motion to suppress, however, Bell testified that on the day of his arrest he had ingested drugs and alcohol and was “high.” Bell further testified that he was not advised of his Miranda rights, but was threatened by the officers with a chair.

The assistant State’s Attorney testified that when he advised the defendant of his rights on the evening of April 17, 1983, he did not appear to be under the influence of drugs or alcohol or to have any comprehension difficulties. He did not request counsel, state that he had been threatened or express that he did not want to make a statement. The trial court found that there were no threats or coercion and no violation of defendant’s Miranda rights.

In addition, the court denied defendant’s motion to quash his arrest for lack of probable cause. In support of that motion, the defense called Detective O'Connor. O’Connor testified that he and Detective Gandurski arrested the defendant on the afternoon of April 17, 1983, without an arrest warrant after other police officers had informed him that Curtis Bell had indicated that he and Albert had participated in the robbery and murder of Teer.

After the court’s denial of this motion, Bell argued pro se a second motion to quash arrest and suppress evidence, asserting that the arrest was the product of the unlawfully obtained statement of Curtis Bell. This motion was denied, subsequently argued by counsel and denied a second time.

The court granted the State’s motion in limine precluding the defense from mentioning the disposition of Curtis Bell’s case. In response to defendant’s motion in limine to exclude Curtis Bell’s statement, the court ruled that the State could not reveal the contents of any of Curtis Bell’s conversations but did not prohibit the State from introducing evidence that conversations with Curtis Bell occurred or that the police showed defendant Curtis Bell’s statement.

The trial consisted of the testimony of eight witnesses called by the State. The forensic pathologist testified that an autopsy revealed an abrasion to the left side of Teer’s face, two stab wounds to his anterior chest, two incised wounds on the left side of his back, and two smaller wounds on his back. She was shown a knife and determined that the wounds could have been caused by such an instrument.

Teer’s sister, Diane Smith, testified that when she saw Teer on April 9, 1983, he appeared happy because he had just received $500 in rental income.

Chicago police investigator Brian Lyons testified that on April 15, 1983, in response to a call, he went to an abandoned building located at 1639 West 60th Street in Chicago. In the first-floor bedroom he found a man’s body, which was subsequently identified as Stanley Teer’s. The deceased was wearing socks, no shoes, a shirt, sweater, and his pants’ pockets were turned inside out. Lyons discovered a jacket near the body, but found no identification, money or weapon.

That evening, Lyons received information from an anonymous citizen implicating Curtis Bell in the crime. He and other officers arrested Curtis Bell.

On April 16, 1983, during his investigation of the Teer homicide, Detective Gandurski reviewed police reports and Curtis Bell’s statement. Based upon the admissions therein, he and his partner, Detective O’Connor, conducted a surveillance for Albert Bell beginning on April 16, 1983. On April 17, 1983, the officers arrested Albert Bell and recovered a folding knife from his pocket. Detective Gandurski testified that he read Bell his Miranda rights in the police car. The police also recovered from the defendant’s mother pants containing traces of blood that had been stuffed in a plastic bag. A Chicago police department microanalyst testified that the knife and pants contained traces of blood, but that due to the insufficient amount of blood present, she was unable to conduct further analysis.

Detective Gandurski further testified that at the police station he again read defendant his rights and that defendant gave several different statements to the police. Bell first offered an alibi statement, followed by a statement that he was acting in self-defense. After being confronted with the inconsistencies between his version and his brother’s statement, Bell admitted to the detectives and Assistant State’s Attorney Perry that he had participated in the robbery and murder of Teer.

Defendant related that he and his brother had observed a man on the street give another man money. Curtis suggested that they rob him, while defendant recommended that they first convince him to drink wine with them. The three men obtained liquor and went to an abandoned building on West 60th Street. In the building, Curtis put his hand in Teer’s pocket, and Teer lunged at defendant with a knife. Defendant turned Teer’s hand back, causing the knife to enter his chest. They fell to the floor, and defendant punctured Teer’s chest a few additional times. After Teer fell, defendant dropped the knife, and Curtis took the money from Teer’s pockets. Curtis gave defendant $200 and kept the remaining proceeds for himself. After they left the building, Curtis went back inside and later informed defendant that he had stabbed Teer a few more times. He returned the knife to Bell and they separated.

Bell’s final statement, essentially the same as the above statement, was transcribed and signed. Assistant State’s Attorney Perry read this transcribed statement to the jury.

On appeal, defendant first argues that since the police arrested him without a warrant and without personal knowledge that he had committed a crime, the burden shifted to the State to demonstrate that the police had probable cause to arrest him. Defendant asserts that the State failed to meet this burden. We disagree.

Generally, it is permissible for a police officer to make a warrantless arrest if he has probable cause to believe that the person arrested is committing or has committed a criminal offense. (People v. Millender (1986), 140 Ill. App. 3d 504, 509, 488 N.E.2d 1105, 1109.) Probable cause for purposes of an arrest exists when the facts and circumstances within the arresting officer’s knowledge are sufficient to warrant a person of reasonable caution to believe that an offense has been committed and that the person arrested has committed the offense. (People v. Watson (1986), 145 Ill. App. 3d 492, 498, 495 N.E.2d 1153, 1157.) Probable cause for an arrest may be established on the basis of all the information possessed by the officers working in concert. (People v. Krogh (1984), 123 Ill. App. 3d 220, 223-24, 462 N.E.2d 790, 793.) Specifically, an arresting officer may rely on the knowledge of officers working with him when making an arrest. (People v. Crowell (1981), 94 Ill. App. 3d 48, 50, 418 N.E.2d 477, 478.) Once a probable cause determination has been made by the trial court, a court of review will not disturb it absent manifest error. People v. Matthews (1985), 137 Ill. App. 3d 870, 874, 485 N.E.2d 403, 407.

Detective O’Connor testified that he had conversations with other police officers regarding the Teer homicide and, further, that he had been made aware that Curtis Bell had named defendant as a co-offender. Specifically, O’Connor’s partner, Detective Gandurski, had reviewed the police reports and read Curtis Bell’s statement. It is undisputed that an offense had been committed and, as previously stated, the arresting officer had knowledge that Curtis Bell had named his brother, Albert, as a co-offender. Under these circumstances, we find that there was probable cause to arrest Albert Bell.

Defendant argues that Curtis Bell, a co-offender, was not a reliable or trustworthy source to furnish probable cause for defendant’s arrest. However, an arresting officer acting solely upon an accomplice’s statement may have probable cause to arrest the co-offender. (People v. Krohn (1981), 100 Ill. App. 3d 37, 39, 426 N.E.2d 540, 541.) The uncorroborated statements by an arrestee may constitute probable cause to arrest a co-offender if the information relied upon to establish probable cause is supported by some indicia of reliability. (People v. James (1987), 118 Ill. 2d 214, 222, 514 N.E.2d 998, 1001-02.) An arrestee’s statement that is an admission against penal interests has some indicia of reliability. Here, the reliability of Curtis Bell’s statement is further supported by the independent verification of his statement by the facts learned by the police during their investigation. The trial court found that Curtis Bell’s statement corroborated in part by the police investigation provided probable cause to arrest Albert Bell. Judging that determination by the totality of the circumstances test, we do not find that the trial court erred. People v. James (1987), 118 Ill. 2d 214, 514 N.E.2d 998; Illinois v. Gates (1983), 462 U.S. 213, 230, 76 L. Ed. 2d 527, 543, 103 S. Ct. 2317, 2328.

In conjunction with this argument, defendant contends that since his arrest was made without probable cause, the knife and the statement obtained from him were admitted in error as the tainted fruits of the unlawful arrest. Since we found that the police had probable cause to arrest Albert Bell, we do not find that the knife and his statement were admitted in error.

Defendant further argues that his inculpating confessions and the knife must be suppressed because they were the direct and sole fruits of Curtis Bell’s statement, which was suppressed after Curtis’ right to remain silent was not scrupulously honored by the police. We disagree.

Generally, individuals not personally the victims of illegal government activity cannot assert the constitutional rights of others. (United States v. Chiavola (7th Cir. 1984), 744 F.2d 1271, 1273.) The victim of an illegal arrest has standing to seek suppression of the fruit of that arrest. While someone else may be aggrieved by the admission of the product of that illegal arrest, his personal privacy rights are not violated and he is not entitled to object to the use of the evidence against him. (People v. James (1987), 118 Ill. 2d 214, 226, 514 N.E.2d 998, 1003.) However, a violation of another person’s fifth amendment rights may rise to the level of a violation of his rights to a fair trial if the government seeks a conviction through use of evidence obtained by extreme coercion or torture. Stated differently, the issue is whether the government’s investigation methods resulted in a fundamentally unfair trial. Chiavola, 744 F.2d at 1273.

Curtis Bell’s statement was not obtained by extreme coercion or torture. Albert Bell waived his right to remain silent and confessed his participation in the crimes. Accordingly, Albert Bell’s statement and the knife need not have been suppressed as the illegal fruits of Curtis Bell’s arrest. We believe that the government’s investigation methods did not result in an unfair trial.

Defendant maintains that reversible error occurred when the State repeatedly introduced into evidence the fact of Curtis Bell’s hearsay statement. We disagree.

Curtis Bell did not testify at defendant’s trial and therefore was not subject to cross-examination by the defendant. The content of the statement was not revealed to the jury, and we do not find that the State’s isolated references to Curtis Bell’s statement transformed him into a witness for the State. Curtis Bell’s statement was not used for the truth of the matter asserted therein. Rather, it was referred to in order to explain how the police came to arrest Albert Bell and to establish the probable cause for that arrest. In addition, the statement was noted as the catalyst that prompted Albert Bell to alter his statement. People v. Thomas (1975), 25 Ill. App. 3d 88, 92, 322 N.E.2d 597, 600.

Assuming that the trier of fact interpreted the references to Curtis, Bell’s statement as establishing the truth of the matter asserted, that is, establishing that Albert Bell was the co-offender, under these circumstances, we do not find that this was clearly prejudicial hearsay evidence, constituting reversible error. (People v. Boyd (1980), 88 Ill. App. 3d 825, 410 N.E.2d 931.) We do not conclude that the defendant was denied a fair and impartial trial. (People v. Simpson (1976), 40 Ill. App. 3d 1059, 353 N.E.2d 91.) When properly admitted evidence of guilt is overwhelming, such as when the defendant has confessed to committing the crime and the prejudicial effect of the admission of the out-of-court statement is insignificant by comparison, the error is considered harmless error beyond a reasonable doubt. Boyd, 88 Ill. App. 3d at 843; People v. Gibson (1987), 156 Ill. App. 3d 459, 509 N.E.2d 563.

Defendant’s final contention on appeal is that the trial court erred in refusing to give jury instructions on self-defense and voluntary manslaughter. We disagree.

The claim of self-defense is not available to a person who is attempting to commit, committing, or escaping after the commission of a forcible felony. (Ill. Rev. Stat. 1985, ch. 38, par. 7—4(a); People v. Graves (1985), 133 Ill. App. 3d 546, 549, 479 N.E.2d 10, 12.) Defendant argues that the crime against Teer constituted merely theft from the person, not a forcible felony. Robbery involves force or intimidation while theft is void of force or intimidation. (People v. King (1979), 67 Ill. App. 3d 754, 384 N.E.2d 1013, 1016.) If no force or threat of imminent use of force is used in the taking, there is no robbery. (People v. Patton (1979), 76 Ill. 2d 45, 389 N.E.2d 1174, 1175.) We find that the defendant and his accomplice utilized intimidation and force, thereby committing robbery. Sufficient force to constitute robbery may be found when the article taken is so attached to the person or clothes as to create resistance, however slight. People v. Taylor (1989), 129 Ill. 2d 80, 84, 541 N.E.2d 677, 679.

The deceased was found with his pants’ pockets turned inside out, and defendant admitted that his brother had put his hand in the victim’s pocket. When force used is to prevent the resistance of the person robbed, such force makes the offense robbery. (Taylor, 129 Ill. 2d at 87.) Defendant and Curtis Bell utilized force to prevent Teer’s resistance. Clearly, the power of the owner to retain possession of his goods was overcome by the robbers, and his money was so feloniously taken from his person with such violence as to occasion fatal injury. Taylor, 129 Ill. 2d at 87.

According to defendant, after Curtis Bell attempted to rob Teer, Teer produced a knife and pointed the knife towards defendant. Thereafter, defendant twisted Teer’s arm back, stabbing him in the chest and Teer fell. Teer got up, approached defendant and defendant twisted his arm back, stabbing him again in the chest. After Teer fell, Curtis went through his pockets and removed his money. He gave Bell $200 and kept the remainder. Curtis and Albert left the building, Curtis went back, returned and informed Bell that the victim had arisen and that he stabbed him a few additional times. The evidence shows that Teer was stabbed numerous times in the chest, back and on the left side of his back. Under these circumstances, defendant’s conduct was not justified by his need for the defense of his person.

A self-defense and a voluntary manslaughter instruction should be given when any evidence demonstrates the defendant’s subjective belief that the use of force was necessary. (People v. Lockett (1980), 82 Ill. 2d 546, 552, 413 N.E.2d 378, 381.) The Criminal Code of 1961 provides in part that a person who intentionally or knowingly kills an individual commits voluntary manslaughter if at the time of the killing he believes the circumstances to be such that, if they existed, would justify or exonerate the killing, but his belief is unreasonable. (Ill. Rev. Stat. 1985, ch. 38, par. 9—2(b).) There is, however, a minimum standard to be met before instructions are required. People v. Rutkowski (1986), 141 Ill. App. 3d 713, 716, 490 N.E.2d 1034, 1036.

We find that if defendant believed that force was necessary, he and his accomplice utilized far more force than necessary to defend themselves. In fact, according to defendant his brother returned to the scene and stabbed the victim an additional number of times. Under these circumstances, particularly given the nature of the victim’s wounds, the trial court’s decision not to give a voluntary manslaughter or a self-defense instruction was correct. People v. Mitchell (1987), 163 Ill. App. 3d 58, 516 N.E.2d 500.

By finding the defendant guilty of robbery, the jury effectively precluded any possibility that defendant’s use of force upon and murder of the victim was justified. Consequently, even if the trial court did err in not instructing the jury on the concept of justifiable use of force, this error did not deprive the defendant of a fair trial. People v. Negron (1979), 77 Ill. App. 3d 198, 206, 395 N.E.2d 1055, 1060-61; People v. Goodman (1981), 98 Ill. App. 3d 743, 748, 424 N.E.2d 663, 667.

Accordingly, the judgment and sentence of the trial court are affirmed.

Affirmed.

FREEMAN, P.J., and CERDA, J., concur.


author: JUSTICE HARTMAN PRESIDING JUSTICE BILANDIC,

text:
    CHICAGO LIMOUSINE SERVICE, INC., Appellee and Cross-Appellant and Plaintiff-Counterdefendant, v. HARTIGAN CADILLAC, INC., Defendant (General Motors Acceptance Corporation, Appellant and Cross-Appellee and Defendant-Counterplaintiff).
    First District (2nd Division)
    Nos. 1—87—2876, —87—3279 cons.
    Opinion filed November 21, 1989.
    Rehearing denied January 17, 1990.

      BILANDIC, P.J., dissenting in part.
    Becker & Tenenbaum, of Chicago (J. Samuel Tenenbaum, Theodore Becker, and Claire Durkin, of counsel), for appellant.
    Foran, Wiss & Schultz, of Chicago (Stephen Gorman and Steven Gistenson, of counsel), for appellee.
   JUSTICE HARTMAN

delivered the opinion of the court:

This appeal involves a commercial dispute between a secured inventory lender and a rescinding purchaser, following default by a third-party borrower. Chicago Limousine Service, Inc. (CLS), brought a replevin action against Hartigan Cadillac, Inc. (Dealership), and General Motors Acceptance Corporation (GMAC), the secured inventory lender of the Dealership, seeking possession of two 1985 Cadillac limousines. After a six-day bench trial, the circuit court awarded possession of the vehicles, damages, and costs to CLS, and dismissed GMAC’s affirmative defenses and counterclaim.

On appeal, GMAC questions whether the circuit court erred in finding that CLS had a superior right to possession of the vehicles and, alternatively, challenges the damage award. On cross-appeal, CLS claims the court erred in not awarding damages for the lost use and enjoyment of the vehicles. The following facts emerge from the evidence adduced at trial.

CLS provides private livery and limousine service to corporate and individual clients, and primarily uses stretch Cadillac and Lincoln limousines in its operations.

Since 1976, GMAC, the inventory lender to the Dealership under a security agreement (Agreement) dated May 26, 1976, advanced money to the latter for the purchase of its new car inventory (floor plan financing), as well as for costs incurred in converting new Cadillacs into stretch limousines. The Agreement gave the Dealership the right to sell the vehicles in the ordinary course of business and also provided that GMAC’s security interest attached to proceeds derived from such sales, as well as to after-acquired property. Among the vehicles financed under this Agreement were two 1985 Cadillac limousines (subject vehicles), upon which the Dealership owed GMAC over $72,000 as of June 1986.

The Dealership began doing business with CLS in the summer of 1985. Around June 24, 1986, Alvin Golub (Al), the president of CLS, received a telephone call from Kenneth Schielka, the Dealership’s general manager, inquiring whether CLS was interested in purchasing two 1985 stretch limousines for a price of $27,000, among other vehicles. Al told Schielka he wasn’t interested, and the price was “out of line” since the 1987 models were about to come out. Nevertheless, Al told Schielka he would stop by the Dealership to discuss the matter, which he did the next day, and spoke with Schielka and James Hartigan, its president, regarding the two limousines. The subject limousines were similar to the type of vehicle CLS always purchased, and Al agreed to take them. Initially priced at $27,000, eventually they agreed on a price of $25,000 for each car.

Typically, CLS would not take immediate physical possession of vehicles purchased from the Dealership; CLS lacked adequate garage facilities, so it arranged that equipment installation be completed at the Dealership. Al told Hartigan he would be sending a man from CLS to install radios in the vehicles within a few days. Schielka advised Al that he would process the necessary paperwork and send salesman Tim Godomski to the CLS office the next day with the purchase documents. On the 25th and 26th of June, Godomski arrived at the CLS offices, where he and Al executed the necessary sales instruments, including a purchase order and invoice for each vehicle, a form stating that CLS had taken delivery of the limousines on June 25, 1986, and a CLS check in the amount of $50,000 payable to the Dealership. The original documents were taken by Godomski and maintained by the Dealership in a “deal jacket” kept in its files, except for the check, which was deposited on June 27,1986.

Around June 30, Schielka telephone Al and asked to cancel the deal since the Dealership had a buyer willing to pay more money for the two vehicles. Due to the good business relationship between CLS and the Dealership, A1 agreed to cancel, telling Schielka to keep the cars and “just send me back any money.” Within a day or two, A1 received two checks for $25,000 each from the Dealership, which were deposited into the CLS account.

Around July 5, A1 heard that GMAC had taken over the Dealership and called Schielka to inquire about the Dealership’s financial situation. According to Al, he was not informed previously that the Dealership was experiencing financial difficulty. Schielka told A1 that there should be no problem; nevertheless, A1 immediately called CLS’s bank in an attempt to stop payment on the $50,000 check to the Dealership. The check already had been paid, however.

CLS was informed on July 10 that the two $25,000 checks from the Dealership were dishonored. The debit notice from the bank directed the payee to “Refer to maker.” A1 called Schielka, who advised him that the checks would be made good. CLS never" redeposited the checks. Previously, the Dealership had a line of credit with its bank to cover overdrafts. In early July, however, its bank froze the Dealership’s account.

Prior to July 1, 1986, GMAC knew of the Dealership’s financial problems, considering it one of the financially weaker dealerships “for a number of years.” On July 2, GMAC learned the Dealership was “out of trust,” meaning it had not turned over to GMAC the applicable proceeds derived from the sale of vehicles in which GMAC maintained a security interest. On that date, GMAC received one-half million dollars in checks from the Dealership which were dishonored. In response, Mark Daly, a control branch manager for GMAC, immediately placed Carl Swanson, a GMAC employee, at the Dealership to monitor the inventory. According to Daly, he did not ask Swanson on that day to determine which vehicles physically located on the premises had been sold; he did expect Swanson to ascertain such information eventually.

After July 2, Swanson or another GMAC employee was at the Dealership during all business hours. When the Dealership received a payment by check, it immediately was endorsed over to and deposited by GMAC. At some point, GMAC took control of all keys to the vehicles on the premises. The public was not advised of GMAC’s involvement at the Dealership, however.

On July 16, AI and Harold Golub went to the Dealership in person, where Schielka advised them he could not release the limousines. He referred them to Swanson, who claimed the cars belonged to GMAC. The Golubs then met with Hartigan, who signed a note promising that the Dealership would pay CLS $50,000 if the limousines were not delivered within 30 days. Hartigan testified that as far as he was concerned, CLS bought the two vehicles from the Dealership. The Dealership never paid GMAC the $72,000 balance it owed for the subject vehicles.

Meanwhile, after talking with Golub, Swanson called Daly to advise him of that conversation. Swanson related that Golub described some transaction involving the purchase of the limousines by CLS and another in which CLS obtained a check from the Dealership; he told Daly he did not think the Golubs had the paperwork evidencing these transactions. Daly did not direct Swanson to investigate the matter with Schielka or check the Dealership’s records.

A1 called Daly and requested the subject vehicles. Daly told A1 that CLS was not a good-faith purchaser of the two limousines; because of the two checks sent to CLS from the Dealership, Daly considered CLS to be an unsecured creditor. Daly also believed CLS was not a good-faith purchaser because it did not take physical possession of the vehicles and had paid under value for them. Based on these conclusions, Daly instructed Swanson not to release the vehicles to CLS. Daly admitted at trial, however,' that he never talked to Schielka or Hartigan, nor asked Swanson to check the Dealership’s records, nor caused GMAC to investigate CLS’s claim. GMAC also continued to hold the certificates of origin for the subject vehicles.

CLS filed a complaint for replevin on August 21, 1986, against the Dealership and GMAC, claiming it was the owner and lawfully entitled to possession of the subject vehicles; the vehicles were being wrongfully detained by the Dealership and/or GMAC; and the value of the property was $50,000. The complaint sought possession of the vehicles, the value of the property not delivered, and damages.

In response, GMAC filed a motion to dismiss or in the alternative for judgment on the pleadings, which the circuit court denied on August 29, 1986, and then also entered a preliminary order for replevin, finding CLS “established a prima facie case to a superior right to possession of the disputed property.”

On January 5, 1987, the circuit court entered an order finding as premature GMAC’s motion for judgment on the pleadings. GMAC then filed its verified answer, affirmative defenses, and counterclaim. The affirmative defenses asserted: (1) CLS was not a good-faith purchaser for value because it acted in bad faith by allowing the vehicles to remain at the Dealership, paid grossly inadequate value for the vehicles, and accepted checks from the Dealership in consideration for its interest in the vehicles or alternatively, as part of a “check kiting” scheme; and (2) CLS’s acceptance of the two checks from the Dealership constituted a sale, thus rendering the vehicles “after acquired property” to which GMAC’s ■ security interest attached. GMAC’s counterclaim sought possession of the vehicles, the value of the property wrongfully withheld by CLS, and damages, based on the same rationales asserted in the affirmative defenses. CLS filed a verified reply to the affirmative defenses and a verified answer to the counterclaim.

Eight witnesses testified at the ensuing trial. On August 13, 1987, the circuit court found in favor of CLS and against GMAC on the complaint for replevin; it dismissed GMAC’s affirmative defenses; and found for CLS on GMAC’s countercomplaint, which was also dismissed. Further, the court determined CLS was entitled to possession of both vehicles. The circuit court also entered a $19,100 judgment for CLS as damages against GMAC for wrongful detention of the limousines, but denied CLS rental value damages. From this judgment GMAC appeals, and CLS cross-appeals.

I

The primary issue on appeal is whether CLS or GMAC had the superior right to possession of the two limousines under the provisions of the Uniform Commercial Code (Ill. Rev. Stat. 1985, ch. 26, par. 1—101 et seq.) (UCC). GMAC contends it has a security interest in the subject vehicles under UCC section 9—203(1) (Ill. Rev. Stat. 1985, ch. 26, par. 9—203(1)), which states, in part:

“(1) *** [A] security interest is not enforceable against the debtor or third parties with respect to the collateral and does not attach unless
(a) the collateral is in the possession of the secured party pursuant to agreement, or the debtor has signed a security-agreement which contains a description of the collateral ***; and
(b) value has been given; and
(c) the debtor has rights in the collateral.”

GMAC next asserts its rights are superior to those of CLS based on section 2—403(1) of the UCC (Ill. Rev. Stat. 1985, ch. 26, par. 2—403(1)), which provides, in part:

“(1) A purchaser of goods acquires all title which his transferor had or had power to transfer except that a purchaser of a limited interest acquires rights only to the extent of the interest purchased. A person with voidable title has power to transfer a good title to a good faith purchaser for value. When goods have been delivered under a transaction of purchase the purchaser has such power even though
* * *
(b) the delivery was in exchange for a check which is later dishonored ***.” (Emphasis added.)

GMAC urges that CLS’s acceptance of the Dealership’s two checks in exchange for the cancellation of the original transaction constituted a “voluntary transfer” by CLS of its interest in the vehicles, characterizing CLS as a seller whose security interests arose because it accepted two subsequently dishonored checks from the Dealership (a debtor). Although the checks were later dishonored, continues GMAC, voidable title was passed to the Dealership, which nevertheless had the power to transfer good title under section 2—403(1). Describing itself as a good-faith purchaser from the Dealership, GMAC concludes it has a superior right to possession of the vehicles.

CLS, on the other hand, claims it was not a seller and disputes GMAC’s characterization of the subsequent cancellation of the purchase agreement as a “sale.” It argues it was a buyer in the ordinary course when it purchased the limousines in the original transaction, and retained that status after the Dealership unsuccessfully attempted to rescind the purchase agreement. CLS acknowledges GMAC’s original perfected security interest in the Dealership’s vehicles and proceeds from the sale of those vehicles, but relies on section 9—307(1) of the UCC (Ill. Rev. Stat. 1985, ch. 26, par. 9— 307(1)), which declares, in part:

“[A] buyer in the ordinary course of business *** takes free of a security interest created by his seller even though the security interest is perfected and even though the buyer knows of its existence.”

Based upon its asserted status as a buyer in the ordinary course of business pursuant to section 9—307(1), CLS concludes it is entitled to possession of the two limousines.

Under section 9—203(1) of the UCC, a security interest in collateral attaches when (1) a security agreement containing a description of the collateral is signed by the debtor, (2) value is given by the secured party, and (3) the debtor acquires rights in the collateral. (Ill. Rev. Stat. 1985, ch. 26, par. 9—203(1); Central National Bank v. Worden-Martin, Inc. (1980), 90 Ill. App. 3d 601, 413 N.E.2d 539; see also General Electric Credit Corp. v. Tidwell Industries, Inc. (1977), 115 Ariz. 362, 364, 565 P.2d 868, 870.) In this case, the first two requirements clearly were satisfied. First, the Dealership signed an agreement which provided GMAC with a security interest in new and used vehicles held for sale or lease, “all vehicles of like kinds or types now owned or hereafter acquired,” and “all additions and accessions thereto and all proceeds of such vehicles.” (Emphasis added.) This clause sufficiently describes the collateral in the instant case (vehicles of like kinds or types hereafter acquired) and meets the first requirement of section 9—203(1). (See Tidwell Industries, 115 Ariz. 362, 565 P.2d 868.) Second, GMAC advanced substantial amounts of money to the Dealership. The preexisting indebtedness of over $1.65 million owed to GMAC, including financing for the subject vehicles, constituted value given under the UCC (Ill. Rev. Stat. 1985, ch. 26, par. 1—201(44)), and satisfies the second element of section 9-203(1). In re Samuels & Co. (5th Cir. 1976), 526 F.2d 1238, 1242, cert, denied sub nom. Stowers v. Mahon (1976), 429 U.S. 834, 50 L. Ed. 2d 99, 97 S. Ct. 98.

The third requirement of section 9—203(1), whether the debtor (the Dealership) reacquired rights in the limousines, is a point of contention in this case. GMAC argues that the cancellation of the original transaction constituted a voluntary transfer of CLS’s interest in the limousines back to the Dealership; CLS responds that the failed rescission between it and the Dealership resulted in the original sales contract for the vehicles remaining in effect and its retention of status as a buyer in the ordinary course of business with a superior right to possession.

The original transaction clearly constituted a sale to CLS, which transferred the Dealership’s interest in the vehicles to CLS and converted GMAC’s security interest into the proceeds of the sale. We must determine now the effect of the rescission between CLS and the Dealership, specifically, whether the rescission caused title to the vehicles to return to the Dealership when those parties sought to cancel the transaction, thereby becoming subject to GMAC’s perfected security interest in after-acquired property.

CLS correctly asserts that a contract can be cancelled or rescinded by agreement of the parties. (Volk v. Kendall (1979), 71 Ill. App. 3d 211, 213, 389 N.E.2d 697.) Also, CLS properly observes:

“ ‘To be entitled to rescind the contract of sale the buyer must first comply with conditions precedent, such as by returning or offering to return the goods to the seller ***. Where the buyer puts it out of his power to return the goods he thereby also puts it out of his power to rescind the contract.’ ” (Tobey v. Sundling (1974), 25 Ill. App. 3d 205, 211, 323 N.E.2d 30, quoting 32 Ill. L. & Prac. Sales §67, at 389 (1957).)

CLS argues that in the instant case, the Dealership failed to comply with a condition precedent, namely, returning what it received.

The determination of whether a debtor acquires title depends upon the intentions of the parties. In Central National Bank v. Worden-Martin, Inc. (1980), 90 Ill. App. 3d 601, 603-04, 413 N.E.2d 539, a debtor was given possession of a car upon his promise of later payment; although the debtor's check subsequently was dishonored, the court held the parties intended the transaction to be a credit sale which immediately passed title from the transferor. Similarly, the record in the instant case shows that the parties to the June 30 rescission intended the possessory interest in the vehicles to return immediately to the Dealership in exchange for subsequent payment. Indeed, the express purpose of the rescission, as demonstrated by the evidence, was that the Dealership reacquire the vehicles for an imminent resale to a higher-paying customer. The rescission was complete, and the interest in the vehicles transferred, when the Dealership tendered the two checks to CLS in return for the “cancellation” of the sale, and CLS accepted and deposited them.

Further, at the time of the rescission, the Dealership did not “put it out of its power” to return the $50,000. (Tobey v. Sundling, 25 Ill, App. 3d at 211.) No record evidence suggests the Dealership knew it did not have the ability to return the $50,000, which would have meant it did not have the power to enter into the agreement to rescind. Rather, the bank froze the Dealership’s account in early July, after the rescission agreement of June 30. At oral argument, CLS conceded that no record evidence existed to demonstrate the Dealership knew it was insolvent when it wrote the subsequently dishonored checks. To the contrary, GMAC suggested that the Dealership believed it could cover the checks based upon $1 million in overdraft protection it thought it had from the bank.

CLS insists that the rescission did not transfer interest in the vehicles until the $50,000 check from the Dealership cleared. As we have seen, however, section 2—403(1) of the UCC allows a person to acquire voidable title in property although delivery is in exchange for a subsequently dishonored check. Whether the second transaction constituted a “sale” by CLS, or not, it did operate to transfer CLS’s interest in the two limousines back to the Dealership. Section 2—403 is “applicable to a person taking by any form of ‘purchase’ as defined by” the UCC (see Ill. Ann. Stat., ch. 26, par. 2—403, Uniform Commercial Code Comment 1, at 332 (Smith-Hurd 1963)); under the UCC, purchase includes “taking by sale, discount, negotiation, mortgage, pledge, lien, issue or reissue, gift or any other voluntary transaction creating an interest in property.” (Emphasis added.) (Ill. Rev. Stat. 1985, ch. 26, par. 1—201(32).) Here, the voluntary agreement to rescind created an interest in the vehicles for the Dealership, which vehicles then became subject to the after-acquired property clause in the Agreement between the Dealership and GMAC.

In summary, the requirement that the debtor acquire rights in the collateral was satisfied when the Dealership obtained its interest in the two limousines pursuant to the rescission agreement; under section 9—203(1), GMAC’s Article 9 interest attached to the subject vehicles, to the exclusion of any interest claimed by CLS.

II

As noted, the Dealership received only voidable title in the limousines bécause it paid with subsequently dishonored checks, but the Dealership nevertheless had the power to transfer good title to a good-faith purchaser for value under section 2—403(1)(b). The issue then becomes one of priority: if the Article 9 secured party (GMAC) was a good-faith purchaser for value, it is prior under section 2—403(1) to the aggrieved transferor (CLS). In re Samuels & Co., 526 F.2d at 1243.

Under the secured transactions provisions of the UCC, the general definition of “good faith” set forth in section 1—201(19) of the UCC is applicable. (Massey-Ferguson, Inc. v. Helland (1982), 105 Ill. App. 3d 648, 653, 434 N.E.2d 295.) That section provides (Ill. Rev. Stat. 1985, ch. 26, par. 1—201(19)) that “ ‘Good faith’ means honesty in fact in the conduct or transaction concerned.” Examples of bad faith might include “lies, deceit, overreaching or other examples of dishonesty in fact in the transaction.” (Massey-Ferguson, Inc., 105 Ill. App. 3d at 654.) Further, “good faith” may require that the purchaser take its interest without notice of the outstanding claims of others. The concepts of good faith and notice, while distinct, may be “intertwined and facts which are sufficient to constitute notice may impeach the claim of good faith.” 1 R. Anderson, Uniform Commercial Code, §1-201:123, at 252 (3d ed. 1981).

In this case, the circuit court analyzed the evidence and initially found bad faith on the part of GMAC, based on GMAC’s: knowledge of the Dealership’s poor financial condition; presence at the Dealership based on its knowledge of the insolvency; refusal to inquire into CLS’s claim or check the records at the Dealership; unjustified refusal to deliver the limousines to CLS upon demand; and subsequent attempts to justify its actions. Later, the court variously stated: “the bad faith *** isn’t bad faith that they [GMAC] did anything wrong”; that GMAC acted with “comparatively” less good faith than the other party; and that GMAC had not “acted improperly.” The record does reveal that GMAC eventually learned of CLS’s purchase of the limousines but refused to release the vehicles; the deal jackets containing the documents of purchase were not found until a search was initiated by reason of the litigation; and GMAC exercised extensive control of the Dealership’s operations. There is no evidence that GMAC participated in the decision to freeze the Dealership’s bank account. From the foregoing, the circuit court’s position as to whether GMAC was a good-faith purchaser is patently ambiguous and unclear.

Whether the circuit court found bad faith on the part of GMAC or equivocated with its rather novel finding of “comparative good faith” need not be determinative of the right to possession of the vehicles in any event, as the following discussion demonstrates.

Ill

Assuming, arguendo, that GMAC did not have a superior interest under section 2—403(1), the right to possession of the limousines ultimately rests upon a resolution of the priority between the parties. The priority provisions of Article 9 (Ill. Rev. Stat. 1985, ch. 26, par. 9—312(5)(a)) declare:

“In all cases not governed by other rules ***, priority between conflicting security interests in the same collateral shall be determined according to the following rules:
(a) Conflicting security interests rank according to priority in time of filing or perfection. Priority dates from the time a filing is first made covering the collateral or the time the security interest is first perfected, whichever is earlier, provided that there is no period thereafter when there is neither filing nor perfection.”

As previously noted, the Dealership reacquired an interest in the limousines (albeit voidable) by virtue of the rescission agreement; GMAC’s security interest in after-acquired property immediately attached pursuant to the underlying perfected security agreement signed by the Dealership. In contrast, there is no evidence that CLS ever perfected a security interest in the vehicles under any method available under Article 9. As a result, GMAC must be held to have possessed a prior security interest. The circuit court erred in awarding possession of the subject vehicles to CLS. This seemingly harsh result is mandated under the facts of the case and the applicable provisions of the UCC. We fail to see how this results in a double recovery as claimed by CLS, since GMAC was never paid for financing the limousines by the Dealership. GMAC is not seeking to penalize CLS, as suggested by the dissent; rather, it is asserting its rights under the UCC to protect itself. It is the Dealership’s insolvency, and not GMAC’s actions, which created this hardship for CLS.

It should be noted that CLS was not without remedy as an aggrieved transferor and could have reclaimed the vehicles, which claim would have been superior to any then possessed by GMAC. Pursuant to UCC sections 2-507(2), 2-511(3) and 2-702 (Ill. Rev. Stat. 1985, ch. 26, pars. 2—507(2), 2—511(3), 2—702), a seller of goods who received payment by a subsequently dishonored check has a right to reclaim the goods from the buyer within 10 days after their delivery. (See Holiday Rambler Corp. v. First National Bank & Trust Co. (10th Cir. 1983), 723 F.2d 1449, 1451-52.) According to UCC Comment 2 of section 2—702 (Ill. Ann. Stat., ch. 26, par. 2—702, Uniform Commercial Code Comment 2, at 510 (Smith-Hurd 1963)), and, expressly applicable here (see Ill. Ann. Stat., ch. 26, par. 2—507, Uniform Commercial Code Comment 3, at 385-86 (Smith-Hurd 1963)): “The ten day limitation period operates from the time of receipt of the goods.” Thus, in the case at bar, CLS had 10 days to reclaim the vehicles after the Dealership “received” them, i.e., 10 days after the June 30 rescission operated to “deliver” the interest in the limousines to the Dealership.

During the 10-day period, this right of reclamation would not have been subject to GMAC’s remedies under Article 9. Further, it might not have been subject to GMAC’s rights under section 2 — 403, if GMAC were to have been found lacking in good faith, upon further clarification by the circuit court. If a seller fails to timely assert his rights, however, he loses his right to reclaim; after 10 days, the sale is no longer conditional, and the buyer can sell or give a security interest to a subsequent purchaser free of the transferor’s right to reclaim. (Holiday Rambler Corp., 723 F.2d at 1452.) Here, because CLS did not attempt to reclaim the vehicles until July 16, beyond the 10-day period, which began running on June 30, CLS must be held to have failed to timely assert its rights; GMAC’s perfected security interest therefore prevails.

IV

GMAC requests damages from CLS under section 19—123 of the replevin statute (Ill. Rev. Stat. 1985, ch. 110, par. 19—123), which provides that in a replevin action, “where the right of property is adjudged against the plaintiff, the defendant is entitled to damages in the amount of the use of the property from the time of its taking until its return.” (International Harvester Credit Corp. v. Helland (1986), 151 Ill. App. 3d 848, 856, 503 N.E.2d 548.) GMAC suggests CLS wrongfully obtained possession of the two limousines and is liable for damages.

We fail to see how CLS “wrongfully detained” the limousines and precluded GMAC’s “use” of the vehicles. From the time of CLS’s first demand for possession (July 16), GMAC exerted total control over the vehicles, as evidenced by its refusal to release them to CLS. Further, the vehicles were maintained at the Dealership’s premises during GMAC’s presence there. The first arguable possession by CLS did not occur until entry of the August 19, 1986, order for replevin. Shortly thereafter, on September 12, CLS and GMAC entered into an agreed order which provided that neither party could transfer any interest in the limousines without prior order of the court or written agreement between the parties. GMAC never acted to modify the order before the vehicles were sold at auction. Under the circumstances, GMAC cannot contend that CLS precluded any use of the vehicles so as to entitle GMAC to damages.

For the reasons set forth above, we reverse the judgment of the circuit court and remand with directions to award the funds held in escrow, representing the right to possession of the vehicles, to GMAC. As a result of this disposition, we need not address GMAC’s challenge of the damage award or CLS’s cross-appeal.

Reversed and remanded.

DiVITO, J., concurs.

PRESIDING JUSTICE BILANDIC,

dissenting in part:

I agree with the majority’s disposition of issue IV. However, I respectfully dissent from the majority’s opinion for issues I, II, and III.

The two limousines involved in this case had their origin with a manufacturer. Hartigan’s role as the dealer was to market and distribute the limousines to ultimate users. GMAC’s inventory financing provided the necessary capital for Hartigan to purchase vehicles from the manufacturer. CLS was the ultimate user that purchased the two limousines from the dealer.

GMAC’s security agreement with the dealer permitted the sale of the two limousines to CLS (an ultimate user) free and clear of any inventory lien in favor of GMAC. However, as correctly stated by the majority, GMAC’s security interest attached to the proceeds of the sale to CLS. Thus, GMAC exchanged its lien on the limousines for a lien on the $50,000 paid by CLS to Hartigan.

GMAC is Hartigan’s banker. The majority view would make CLS the banker. Bankers are constantly concerned with the possible insolvency of their debtors. However, the ultimate user who purchases vehicles from an authorized dealer of a major manufacturer, and pays cash for the vehicles, should be able to do so with the confidence that he acquired good title.

Therefore, on June 26, 1986, CLS acquired title to the limousines; GMAC acquired a lien on the $50,000 paid by CLS to Hartigan. Because GMAC was not vigilant in enforcing its lien on the proceeds, it now seeks to penalize CLS.

On appeal, the facts and inferences are to be construed against the appealing party — here, GMAC. (Heimberger v. Chebanse (1984), 124 Ill. App. 3d 310, 463 N.E.2d 1368.) It is the appellate court’s “obligation to accept those inferences arising from the conflicting nature of the evidence which support the judgment of the trial court.” (In re Estate of Gigele (1978), 64 Ill. App. 3d 136, 139, 380 N.E.2d 1144.) Any doubts which may arise from the incompleteness of the record will be resolved against the appellant. (Foutch v. O’Bryant (1984), 99 Ill. 2d 389, 392, 459 N.E.2d 958.) In the absence of a record sufficient to establish the error urged on review, a reviewing court will indulge in every presumption favorable to the judgment or order appealed from. Village of Hillside v. John Sexton Sand & Gravel Corp. (1983), 113 Ill. App. 3d 807, 447 N.E.2d 1047.

Applying these standards of review to the facts of this case, I conclude that the trial court correctly determined that CLS was entitled to possession in spite of the alleged priority asserted by GMAC.

The majority grants a priority to GMAC by concluding that Hartigan reacquired an interest in the limousines from CLS after June 26, 1986, and, therefore, GMAC’s lien reattached to defeat the interest of CLS. I respectfully disagree with this conclusion.

The owners of CLS are livery drivers, not sophisticated financiers. They did not need nor want to purchase the limousines. They yielded to Hartigan’s pitch of a deal they could not refuse.

On June 30, 1986, the dealer came calling again. This time the dealer wanted to reacquire the two limousines so that the dealer could profit by a resale at a higher price. Because of the accommodating nature of CLS to Hartigan, the majority holds that Hartigan reacquired an interest in the limousines by reason of the Uniform Commercial Code and the after-acquired property clause of the security agreement between GMAC and Hartigan. Since the limousines were reacquired by Hartigan, the lien of GMAC is reattached. In my opinion, this reasoning is fallacious.

The Uniform Commercial Code provides in part:

“§1—102. *** (1) This Act shall be liberally construed and applied to promote its underlying purposes and policies.
(2) Underlying purposes and policies of this Act are:
(a) to simplify, clarify and modernize the law governing commercial transactions;
(b) to permit the continued expansion of commercial practices through custom, usage and agreement of the practices;” Ill. Rev. Stat. 1985, ch. 26, par. 1—102.

The Uniform Commercial Code’s policy that “the principles of law and equity *** shall supplement [the Uniform Commercial Code’s] provisions” also applies. Ill. Rev. Stat. 1985, ch. 26, par. 1—103.

Certainly CLS did not intend to part with $50,000 cash and the two limousines. Under the facts of this case, I believe that the return of the $50,000 to CLS and the return of the two limousines to Hartigan was to be simultaneous. Hartigan did not return the cash so it did not reacquire any interest in the limousines. Without a reacquired interest by Hartigan, there is nothing upon which GMAC’s lien could be reasserted.

Under the facts of this case, in determining the competing rights of a good-faith purchaser from an authorized automobile dealer and the inventory financier of the dealer, logic, law and equity compel me to come down on the side of the purchaser.

Accordingly, I would affirm.

       The Dealership is not involved in this appeal.

       Ultimately sold, with proceeds held in escrow. See footnote No. 4.

       this Note, dated July 16, 1986, was not signed by CLS. CLS never received the $50,000 referred to in the Note.

       The two limousines had been sold at auction on June 27, 1987, near the end of the trial, for $40,600, and the proceeds deposited in an escrow account.

       The circuit court erroneously ruled that CLS had 21 days within which to reclaim the vehicles; that period of time (actually, 20 days) is referable only to the rights of a secured creditor under UCC section 9—306 (Ill. Rev. Stat. 1985, ch. 26, par. 9—306) within which to perfect its security interest, a procedure which CLS never invoked.

       We are not convinced, as is the dissent, that CLS was not “sophisticated” in commercial transactions. We note that CLS attempted to turn over half of its fleet of at least 27 limousines every other year, which necessarily involved numerous purchases and resales of vehicles in the course of its operations.