text:
    AGRIBANK, F C B, as Successor to the Federal Land Bank of St. Louis, Plaintiff-Appellant, v. WALTER H. WHITLOCK et al., Defendants-Appellees.
    Fourth District
    No. 4—93—0078
    Argued August 24, 1993. —
    Opinion filed September 30, 1993.

      Charles E. Theivagt (argued), of Gustine & Theivagt, Ltd., of Carrollton, for appellant.

      Steven N. Mottaz (argued), of Thomas, Mottaz, Eastman & Sherwood, of Alton, for appellees.
   JUSTICE KNECHT

delivered the opinion of the court:

Walter and Mary Whitlock (the parents) signed a note and gave a mortgage on their property for the purpose of assisting their children in obtaining a loan to purchase a farm. The lender subsequently released the children from liability on the note and sought to foreclose on the parents’ property. The trial court determined the parents were accommodation makers of the note and the release of the children released the parents from liability. We reverse.

I. Facts

Plaintiff, Agribank, FCB, is the successor to the Federal Land Bank of St. Louis, which conducted business as the Farm Credit Bank of St. Louis from 1983 to 1992. In the interest of simplicity, plaintiff and its predecessors will be referred to cumulatively as “plaintiff.”

In the 1970’s, the parents owned and operated a farm known as the Short farm. Their sons Darrell, Ronald and Richard were partners in a farming operation; they farmed rented land. In 1977, the sons and their wives (referred to collectively as the children) wished to acquire property known as the Meek farm for their farming operation. The Meek farm was available for $400,000. The children requested plaintiff to lend them the entire purchase price. Larry Thoele, then plaintiff’s association manager, denied the request based on the children’s own credit and the collateral available to them, but suggested a loan arrangement would be possible if the parents gave the Short farm as security. The Short farm was valued at approximately $320,000, and was security for an outstanding indebtedness to plaintiff in the amount of approximately $40,000. The parents were current on their loan payments and had not requested refinancing of their indebtedness. The parents did, after Thoele’s suggestion, agree to help the children acquire a loan for the purchase of the Meek farm.

Plaintiff ultimately arranged two loans. “Loan 1” (loan No. 382076-1), for $214,200, was secured by the Short farm, and was taken out for the purpose of providing the children with funds for the down payment on the Meek farm. “Loan 2” (loan No. 382075-2), for $255,000, was secured by the Meek farm and provided the balance of the purchase price for the Meek farm. Although the parents did not request the consolidation of their previous indebtedness to plaintiff with the loan for the children’s down payment on the Meek farm, plaintiff included the parents’ previous indebtedness ($41,720) in loan 1. The children signed the notes with respect to both loan 1 and loan 2; the parents signed only the note pertaining to loan 1. Walter testified he requested that the children sign the note pertaining to loan 1 because he wanted them to be liable for the repayment of the money they were receiving. Thoele confirmed the children signed this note “because that was what Walter wanted.” Walter additionally testified he was hesitant to sign the loan documents and told Thoele he wanted some sort of security. According to Walter, Thoele told him there was nothing to worry about, it was a family matter and “we [meaning plaintiff] take care of them things.”

Sometime after the loan documents were signed, the parents discovered their previous indebtedness had been included with the loan for the children’s down payment in loan 1. Loan 1 required annual payments of $19,318.56. Either the parents or one of the children may have requested that the bank allocate the indebtedness between the children and the parents for the purpose of determining the amount of the annual payment attributable to each. However, the parents and children ultimately agreed, with the plaintiff's knowledge, that the parents would make annual payments substantially equal to the payments they had been making on their loan (approximately $5,000), and the children would make the balance of the payments.

In 1978 through 1983 the children made the annual payments for loan 2, and their portion of the payments for loan 1. The parents made their portion of the payments for loan 1. In 1984 the children defaulted on both loans; the parents made their portion of the loan 1 payment. In January 1985, to avoid foreclosure on the Meek farm, the children gave the plaintiff a deed in lieu of foreclosure in exchange for a release “of and from all manner of actions, causes and causes of action, suits, debts, sums of money.” In 1985, the parents made their portion of the loan 1 payment. In 1986, plaintiff notified the children that they were personally liable on loan 1 and notified both the children and. parents that loan 1 was delinquent. In January 1987, plaintiff filed this action against both the parents and the children to foreclose the mortgage on the Short farm. The defendants, collectively, alleged the release of the children “of and from all *** debts” released the children from liability on loan 1. The parents additionally alleged by releasing the children, plaintiff also released them due to their status as accommodation makers. Defendants filed a motion for summary judgment, which was granted. Plaintiff appealed and we affirmed, with one justice dissenting. (Farm Credit Bank v. Whitlock (1990), 202 Ill. App. 3d 609, 560 N.E.2d 460.) The supreme court reversed, finding the release was ambiguous and remanded for further fact finding on the issue of whether the parties intended for the release to release the children from liability on loan 1. Farm Credit Bank v. Whitlock (1991), 144 Ill. 2d 440, 581 N.E.2d 664.

On remand, after a bench trial, the trial court found the release was intended to release the children from all indebtedness to plaintiff, including that incurred in loan 1. The trial court additionally found the parents were accommodation makers and, as such, were discharged by the release of the children. Accordingly, the trial court entered judgment in favor of the children and parents. Plaintiff filed a post-trial motion alleging, inter alia, the parents were not discharged by the release of the children, because a provision in the mortgage of the Short farm contained a consent to the release of other parties. The trial court ruled this consent provision was inapplicable to the release of the children because the children were not parties to the mortgage.

Plaintiff appeals. Although, until this appeal, plaintiff has hotly contested the claim that its release of the children actually released them from liability on loan 1, it has now abandoned this argument. Conversely, although plaintiff has previously devoted little attention to whether the consent provision in the mortgage operated as a consent to the release of the children on the note, this argument is the focal point of its appeal. Plaintiff additionally appeals the trial court’s determination the parents were accommodation makers.

II. Accommodation Status

Plaintiff’s first allegation of error concerns whether the trial court properly found the parents to be accommodation makers. We find no error.

This case is governed by the Uniform Commercial Code (Code) as adopted by the Illinois legislature. (Ill. Rev. Stat. 1991, ch. 26, par. 1 — 101 et seq.) The statute in effect at the time of the execution of the note, as well as at the time of the release of the children, provided “[a]n accommodation party is one who signs the instrument in any capacity for the purpose of lending his name to another party to it.” (Ill. Rev. Stat. 1989, ch. 26, par. 3 — 415(1) (as amended by Pub. Act 87 — 582, §1, eff. January 1, 1992 (1991 Ill. Laws 2859, 2905-06)); see Ill. Rev. Stat. 1991, ch. 26, par. 3 — 419.) The receipt of value in exchange for the signing of an instrument does not automatically negate status as an accommodation maker. (Ill. Ann. Stat., ch. 26, par. 3 — 415(1), Illinois Code Comment, at 298 (Smith-Hurd 1963).) Rather, whether a party is an accommodation maker depends on a factual inquiry into whether the individual acted as a surety in signing the instrument. (Godfrey State Bank v. Mundy (1980), 90 Ill. App. 3d 142, 144, 412 N.E.2d 1131, 1134.) The courts are inclined to recognize one as an accommodation maker on a note when (1) the party did not participate in negotiations for credit or subsequent modifications of credit arrangements, (2) the evidence shows that the creditor was aware the party was not the one seeking the credit, (3) the party is not the one to whom proceeds are credited, and (4) the party has no interest in the purpose for which the proceeds are used. (Aurora Firefighter’s Credit Union v. Harvey (1987), 163 Ill. App. 3d 915, 920, 516 N.E.2d 1028, 1032.) In Harvey, the court found C. J. Harvey was an accommodation maker of a note signed by himself and Delbert Dittman, in order for Dittman to obtain a loan from a credit union. The evidence established Dittman was a member of the credit union and Harvey was not; only members of the credit union were eligible to take out loans. Harvey did not participate in the loan negotiations and the proceeds were credited to Dittman. Harvey, 163 Ill. App. 3d at 920-21, 516 N.E.2d at 1032.

Similarly in Holcomb State Bank v. Adamson (1982), 107 Ill. App. 3d 908, 438 N.E.2d 635, the court found Grant Adamson to be an accommodation maker of a note signed by himself and his son-in-law. The son-in-law sought the loan, but could not obtain it without the signature of a comaker on the note. The bank suggested Adamson sign the note. The proceeds were credited to the son-in-law. Holcomb, 107 Ill. App. 3d at 911, 438 N.E.2d at 638.

In the present case, the first two factors clearly weigh in favor of finding the parents are accommodation makers. The parents did not participate in the negotiations for Credit. Plaintiff was aware the parents were not the parties seeking the credit. In fact, plaintiff, as the lender in Holcomb, made the suggestion that the parents act as accommodation makers.

Plaintiff argues the third and fourth factors weigh in favor of finding the parents were not accommodation makers, because the parents’ preexisting indebtedness to plaintiff was included in loan 1. Plaintiff argues since $40,000 of the proceeds of loan 1 were used to refinance the parents’ preexisting indebtedness, the parents received a portion of the proceeds of loan 1 and cannot, therefore, claim accommodation status. We disagree. Although, under normal circumstances, a party receiving a portion of a loan will not be regarded as an accommodation maker of the note, the parents’ net fiscal position with respect to the plaintiff, on the indebtedness incurred for their own purposes, did not change by virtue of the loan transaction. Although 19% of the proceeds of loan 1 were used to pay off the parents’ existing indebtedness, plaintiff was the holder of the note representing that indebtedness. It is uncontroverted that the parents were current on the payments on the existing mortgage and had not approached the bank regarding the possibility of refinancing that loan. Thoele, plaintiff’s employee, testified the “only reason” the parents signed the note and mortgage was to obtain funds for their children to purchase the Meek farm. Thoele additionally testified the “sole purpose” of the loan was to enable the children to buy the Meek farm. Moreover, the evidence suggests the parents’ preexisting indebtedness was included in loan 1 at the insistence of the bank, and not at the parents’ request; the parents did not realize until sometime after the documents had been signed that the transaction had been structured in this way. The inclusion of the parents’ loan in loan 1 was merely a substitution of new debt for old debt, structured for the convenience of the bank and caused no change in the parents’ net fiscal position with respect to the plaintiff. (See In re Estate of Williams (1982), 109 Ill. App. 3d 828, 834-35, 441 N.E.2d 412, 417.) We do not believe a bank may defeat a party’s ability to assert accommodation status by, at the bank’s own instance, including the party’s preexisting indebtedness to the bank in the loan for which they are to act as a surety. For the foregoing reasons, we do not find the trial court erred in finding the parents were accommodation makers.

III. Effect Of The Release Of The Children

We now turn to the issue of the effect of the release of the children upon the liability of the parents to plaintiff. Under the statute in effect at all times relevant to this case, an accommodation maker was discharged from liability if the holder of the note released the accommodated party from liability, without first obtaining the consent of the accommodation maker or expressly reserving its rights against the accommodation maker. (Ill. Rev. Stat. 1989, ch. 26, par. 3 — 606(l)(a).) An accommodation maker is a surety, and the defenses set forth in section 3 — 606 of the Code are suretyship defenses. The extent of the discharge is the extent that the creditor impairs the accommodation party’s right of recourse. (J. White & R. Summers, Uniform Commercial Code §13 — 13, at 656 (3d ed. 1988).) The parents would not have recourse against the children for the portion of the loan attributable to the parents’ own indebtedness; thus, that portion of the loan would not be discharged by plaintiff’s release of the children; the parents remained liable on this portion of the loan, despite plaintiff’s release of the children. Accordingly, we find the trial court erred in finding the release of the children released the parents from liability on the portion of the loan attributable to the discharge of the parents’ preexisting indebtedness to plaintiff. For the reasons set forth below, we additionally determine the trial court erred in finding the release of the children released the parents from liability on the portion of the loan attributable to the children.

A. Consent

Whether plaintiff’s release of the children caused the parents, as accommodation makers, to be discharged from liability on the portion of the loan attributable to the children’s purchase of the Meek farm turns upon whether the parents consented to the release of the children. In order to resolve this issue, we must determine whether the consent provision located in the mortgage was a valid consent provision, and whether it operated as consent to the release of any parties liable on the indebtedness, including those who were not parties to the mortgage. We find the trial court erred in determining the parents did not consent to the release of the children on the note.

The consent provision in the mortgage is a valid consent provision. Comment 2 to section 3 — 606 of the Code provides consent may be given in advance, and is commonly incorporated in the instrument. (Ill. Ann. Stat., ch. 26, par. 3 — 606(1), Uniform Commercial Code Comment, at 411 (Smith-Hurd 1963).) In Jacobson v. Devon Bank (1976), 39 Ill. App. 3d 1053, 1056, 351 N.E.2d 254, 256, the appellate court determined a consent provision, similar to the one appearing in the mortgage signed by the parents, was an unambiguous consent. In the consent provision, the guarantor agreed his liability would not be “affected or impaired by *** any sale, pledge, surrender, compromise, release, renewal, extension, indulgence, alteration, exchange, change in or modification” of any liability of the debtor both express and implied. (Jacobson, 39 Ill. App. 3d at 1056, 351 N.E.2d at 256.) The appellate court noted it was difficult to conceive of a broader or more inclusive form of guaranty. The court additionally noted the consent provision was unambiguous and the court was obligated to give effect to the clear and unambiguous language which the parties ratified and adopted. (Jacobson, 39 Ill. App. 3d at 1056, 351 N.E.2d at 256.) Accordingly, the court found the guarantor had agreed his liability would be unaffected by renewals or extensions of repayment of the debt, and the guarantor, therefore, remained liable, even though the guarantor was not a party to the renewals and extensions.

The consent provision in the parents’ mortgage in the present case provides:

“that mortgagee [(the bank)] may extend and defer the maturity of and renew and reamortize said indebtedness, release from liability any party liable thereon, and release from the lien hereof portions of property covered hereby, without affecting the priority hereof or the liability of the mortgagors or any other party for the payment secured hereby.”

This provision, like the provision in Jacobson, is quite broad and inclusive. We find no ambiguity in this provision; rather, we find it contains an unambiguous consent to the release by the mortgagee, plaintiff bank, of any party liable on the indebtedness.

The location of the consent provision — in the mortgage document, rather than the loan document — does not preclude its application to the note on loan 1. The Code provides the terms of an instrument may be modified or affected by any other written agreement executed as part of the same transaction. (Ill. Rev. Stat. 1989, ch. 26, par. 3— 119 (subsequently replaced by Ill. Rev. Stat. 1991, ch. 26, par. 3— 117).) The separate writing is most commonly an agreement creating or providing for a security interest such as a mortgage. (Ill. Ann. Stat., ch. 26, par. 3 — 119, Uniform Commercial Code Comment, at 85 (Smith-Hurd 1963).) In the present case it is undisputed that the note and mortgage were executed as part of the same transaction. Consequently, we find the consent provision in the mortgage document was a valid consent to the release, by the mortgagee bank, of parties to the indebtedness.

We additionally find the consent to the release of parties liable on the indebtedness was not limited to only those individuals who were also parties to the mortgage. The trial court, by contrast, found the consent provision was not a consent to the release of the children, since the children were not parties to the mortgage. Specifically, the trial court held:

“Paragraph 10 of the mortgage provides that the mortgagee may ‘release from liability any party liable thereon,’ and since the Whitlock children were not parties to the mortgage, the parents did not consent to the release of the children on the underlying note.”

However, viewing the consent provision in its entirety, it is clear “thereon” refers back to “indebtedness.” A note is proof of a promise to pay an indebtedness. A mortgage provides for a security interest in realty to secure the repayment of the indebtedness. (See Petkus v. St. Charles Savings & Loan Association (1989), 182 Ill. App. 3d 327, 330, 538 N.E.2d 766, 768.) Since the consent provision was not limited to parties to the mortgage, but included any party liable on the indebtedness, we must conclude the parents consented to the release of the children who were liable on the indebtedness. Since the parents consented to the release of the children, plaintiff’s release of the children did not release the parents from liability on the note. Accordingly, the parents remain liable to the plaintiff for satisfaction of the debt. Upon satisfaction of the debt the parents may exercise their right of reimbursement from the children for the portion of the loan attributable to the children. Ill. Ann. Stat., ch. 26, par. 3 — 605, Uniform Commercial Code Comment 3, .at 149 (Smith-Hurd Supp. 1992).

B. Other Arguments In Support Of The Trial Court’s Decision

The parents have advanced several other arguments in support of the trial court’s ruling that the release of the children discharged the parents from liability on the portion of the note attributable to the children. Since the appellate court may affirm the trial court on any basis supported by the record, we will consider these arguments. Material Service Corp. v. Department of Revenue (1983), 98 Ill. 2d 382, 387, 457 N.E.2d 9, 12.

1. Inconsistencies in Plaintiff’s Position

The parents first allege plaintiff’s conduct was inconsistent with its position that the clause in the mortgage document was a consent to its release of the children on the note. Sometime after the plaintiff released the children, it notified them that the release did not actually release them from all of their liability to plaintiff, but only from their liability on the note secured by the Meek farm (loan 2). Three of the children requested to be released from liability on the note secured by the Short farm as well (loan 1). Plaintiff sent letters to the parents and the other children stating Ronald, Patricia, and Helen had requested to be released from liability on the note, and the parents and the other children would have to sign consent forms, which were included with the letters, before the requests would be considered. The parents and other children refused to give their consent. The parents argue plaintiff’s request for consent to the release of Ronald, Patricia and Helen indicates plaintiff did not believe the provision in the mortgage operated as a consent to its release of the children from liability on the note.

In making this argument, the parents essentially request this court to look to extrinsic evidence of the conduct of the parties in order to interpret the meaning and effect of the consent provision. Where a contract provision is unambiguous, the court must give effect to the plain language of the provision and cannot consider the extrinsic evidence to determine whether the parties may have intended the provision to have another meaning. (See American National Bank v. Warner (1984), 127 Ill. App. 3d 203, 206-07, 468 N.E.2d 184, 186; Village of Grandview v. City of Springfield (1984), 122 Ill. App. 3d 794, 797, 461 N.E.2d 1031, 1035.) The consent provision in the mortgage unambiguously sets forth the parents’ consent to the mortgagee bank’s release of any party liable on the indebtedness. Accordingly, extrinsic evidence may not be considered to interpret the consent provision.

2. Resulting Trust and Equitable Lien

The parents next allege, since they “advanced” $160,000 of the purchase price of the Meek farm (by taking out loan 1 for the down payment), either a resulting trust or an equitable lien arose in their favor, and by accepting a deed in lieu of foreclosure and releasing the Meek farm as collateral for the children’s loan, the bank impaired the collateral for the resulting trust or equitable lien, and such impairment of collateral effected a release of the parents due to their status as accommodation makers.

Circumstances giving rise to a resulting trust do not appear in the present case, because the parents were merely loaning their credit to the children, they did not intend to invest in the Meek farm. A resulting trust arises pro tanto when two persons supply the consideration for the purchase of the property and cause the property to be conveyed to one of the parties. (Hanley v. Hanley (1958), 14 Ill. 2d 566, 571-72, 152 N.E.2d 879, 882; Paluszek v. Wohlrab (1953), 1 Ill. 2d 363, 369, 115 N.E.2d 764, 768.) In such a case, the title holder holds the property subject to a resulting trust in favor of the other party to the extent of that party’s interest in the property. (Carrillo v. O’Hara (1948), 400 Ill. 518, 532, 81 N.E.2d 513, 520.) However, a resulting trust is inconsistent with a loan. (Zack Co. v. Sims (1982), 108 Ill. App. 3d 16, 28, 438 N.E.2d 663, 672.) Where one party lends money to another for the purchase of property, he cannot later claim the benefit of a resulting trust in the property. (Fields v. Fields (1953), 415 Ill. 324, 329, 114 N.E.2d 402, 404.) Thus, in the present case, since the parents did not supply a portion of the purchase price because they intended to invest in the Meek farm on their own behalf, but were providing a loan to the children, they are now precluded from claiming a resulting trust in the property.

While the parents might successfully argue they had an equitable lien on the Meek farm, the impairment of their equitable lien in the deed-in-lieu-of-foreclosure transaction does not give rise to the discharge of the parents’ liability to plaintiff. An equitable lien arises in two situations. First, the lien arises where the parties express in writing their intention to make real or personal property, or some fund, the security for a debt, or where there has been a promise to convey or assign property as security. Second, equity recognizes such a lien without an express agreement between the parties, which arises wholly from general considerations of fairness and justice. (Paine/Wetzel Associates, Inc. v. Gitles (1988), 174 Ill. App. 3d 389, 393, 528 N.E.2d 358, 360.) An equitable lien is not a debt or a right to property, but a remedy for a debt. A creditor in whose favor such a lien exists may proceed against the property in an equitable action, resulting in the sale of the property to satisfy the debt. (Watson v. Hobson (1948), 401 Ill. 191, 201, 81 N.E.2d 885, 890.) The record does not reflect the presence of an agreement between the children and parents or promise by the children that the Meek farm would be security for the parents’ “loan” of their credit to the children. Thus, an equitable lien would arise only from general considerations of fairness and justice. Assuming equity would, under the circumstances of this case, confer an equitable lien on the Meek farm upon the parents, had the parents paid the indebtedness, they may have been able to initiate a legal action to have their equitable lien determined and cause the Meek farm to be sold and the proceeds applied to reimburse them for the amount expended to pay off the loan. Since the children, by conveying the Meek farm to plaintiff in a deed-in-lieu-of-foreclosure transaction, effectively precluded the parents from asserting an equitable lien on the Meek farm, the parents might have some recourse against the children. However, the parents have cited no authority to support an argument that plaintiff was responsible for ensuring the parents’ potential equitable lien remained intact and plaintiff’s failure to do so discharged the parents from their liability to plaintiff. Accordingly, even if the parents were able to establish an equitable lien on the Meek farm, the deed-in-lieu-of-foreclosure transaction did not release the parents from their liability to plaintiff.

3. Good Faith

Finally, the parents allege plaintiff’s claim that it obtained their consent is in contravention of the good-faith provision of the Code. (Ill. Rev. Stat. 1991, ch. 26, par. 1 — 203.) The parents allege the inclusion of a consent provision in the mortgage, if it operates to consent to the mortgagee’s release of the children on the note, was in violation of the good-faith provisions of the Code, because plaintiff knew the parents intended for the children to be responsible for the repayment of the loan and, when the parents manifested a desire for some sort of security, were reassured by plaintiff that none was needed as this was a family matter. The consent provision in the mortgage is a provision sanctioned by the Code. We do not believe, absent factors not present in this case, the good-faith provision of the Code may be utilized to preclude the inclusion of a provision which is permitted by the Code.

Section 1 — 203 of the Code provides “[e]very contract or duty within this Act imposes an obligation of good faith in its performance or enforcement.” (Ill. Rev. Stat. 1991, ch. 26, par. 1 — 203.) “Good faith” is defined as “honesty in fact in the conduct or transaction concerned.” (Ill. Rev. Stat. 1991, ch. 26, par. 1 — 201(19).) However, the Code additionally provides consent to the release of the accommodated party may be obtained in advance. (Ill. Ann. Stat., ch. 26, par. 3 — 606, Uniform Commercial Code Comment, at 411 (Smith-Hurd 1963).) Commentators have noted the importance of suretyship defenses have greatly diminished as they may be waived and a waiver is commonly obtained in advance. Ill. Ann. Stat., ch. 26, par. 3 — 605, Uniform Commercial Code Comment 2, at 149 (Smith-Hurd Supp. 1992).

We do not believe we can construe the duty of good faith imposed by the code to prevent the lender from inserting a provision in the instrument or accompanying documents, when the use of such a provision has been expressly sanctioned by the Code. Rather, we believe the effect of the good-faith obligation in the context of the advance consent to release the accommodated party, is to place the obligation upon the lender to act in good faith when releasing the accommodated party.

As a practical matter in most accommodation situations, the accommodation party intends only to lend his credit so the accommodated party may obtain a loan. Both the accommodated party and accommodation maker intend, at the time of the signing of the contract, that the accommodated party will make the payments of the loan. The lender who is aware one individual is an accommodation maker may be cognizant that the accommodation maker merely intends to help the accommodated party obtain a loan, but has no expectation that he (the accommodation maker) will be called upon to satisfy the indebtedness. If we were to hold the good-faith provision of the Code prevented the lender from obtaining the accommodation maker’s advance consent to the release of the accommodated party under these circumstances, we would effectively prevent a lender from obtaining consent in advance, thus nullifying the Code’s provision for such a practice.

While many accommodation parties may be surprised to learn the consent provisions in the instrument or accompanying documents essentially preclude them from asserting suretyship defenses and render little difference between their liability and the liability of the accommodated party, such consent provisions are sanctioned by the Code and routinely utilized by lenders. A bold heading, to draw the accommodation maker’s attention to the consent provision and a plain language explanation of its effect, may be warranted to fully advise accommodation parties of the scope of their liability; however, the determination of whether to require such measures rests with the legislatures and shall not be retroactively imposed by this court.

IV. Conclusion

For the foregoing reasons the order of the circuit court of Greene County is reversed. This matter is remanded and the circuit court is directed to enter judgment consistent with this opinion.

Reversed and remanded with directions.

COOK and GREEN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE COOK

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN G. GLIDEWELL, Defendant-Appellant.
    Fourth District
    No. 4—92—0493
    Argued December 9, 1992. —
    Opinion filed September 30, 1993.

      Ronald L. Lewis (argued) and Harold M. Jennings, both of Jennings, Novick, Taseff, Smalley & Davis, P.C., of Bloomington, for appellant.
    Lawrence R. Fichter, State’s Attorney, of Decatur (Norbert J. Goetten, Robert J. Biderman, and James Majors (argued), all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE COOK

delivered the opinion of the court:

Following a bench trial, defendant was convicted on three counts of theft by deception and sentenced to 30 months of probation conditioned upon restitution, and 30 days of incarceration in the county jail. Defendant appeals, alleging ineffective assistance of counsel and insufficiency of the evidence to establish guilt beyond a reasonable doubt.

On September 30, 1991, defendant closed his retail carpeting store and filed for bankruptcy. The charges against defendant are based on three sales of carpeting through the carpeting store on September 25 and 28, 1991. In each instance, the purchasers received neither the carpeting ordered nor a refund of what they had paid. Because we find guilt has not been proved beyond a reasonable doubt and defendant’s convictions must be reversed, we need not address the allegations of ineffective assistance of counsel.

In February 1990, defendant was hired as a salesperson by Classic Carpets, a retail carpeting and decorating business owned by Georgine Voorhees and Carol Fisher. Voorhees held two-thirds of the shares of the incorporated business and apparently had provided the $250,000 financing, which was secured by personal collateral. When Fisher left the business the following month, Voorhees offered Fisher’s shares to defendant as well as vice-presidency of the corporation. Defendant accepted the shares in April 1990, paying nothing but agreeing to supply his expertise in selling and measuring carpet and operating the warehouse equipment.

By early 1991, Voorhees decided she wanted to get out of the business and defendant agreed to purchase her shares. The agreement between the parties provided for defendant to pay Voorhees $100,000 in monthly payments of approximately $1,700, plus 1% of gross income for 15 years, beginning May 1992. Voorhees warranted the outstanding indebtedness of $250,000 was not a debt of the corporation but solely her personal obligation. The contract was signed April 26, 1991. The lease for the premises was assigned to defendant and he subsequently made two payments on the $100,000 buy-out agreement. At the time of the sale the corporation had accounts payable which Voorhees represented to be $20,000 to $30,000.

After assuming sole ownership of the business, defendant instituted new employee policies. He informed the sales staff they should no longer place their own carpet orders with the mill, since he wanted to consolidate orders of the same material to obtain the benefit of a lower yardage price on an entire roll. Defendant put the sales staff on commission instead of salary and took over the scheduling of carpet installation himself. He also instituted a policy of offering customers a 10% discount if they paid full price at the time of order, a practice similar to that utilized by a competitor.

The sales staff apparently disagreed with these policies and walked out on May 13, 1991, some of them advising customers that merchandise which they had ordered would not be delivered. Additionally, some of the staff had continued to place carpet orders with the mill despite the directive that orders would be consolidated so that double carpeting was received at the store for some purchase orders.

Defendant hired an accountant to advise him how to set up his own books for the corporation and his wife quit her job as a nurse to work at Classic Carpets. Defendant began receiving bills from suppliers on accounts payable, some of which were past due from 1989. In June 1991, defendant’s accountant determined that as of the date defendant purchased the business in April 1991 accounts payable amounted to $83,000, rather than the $20,000 to $30,000 represented by Voorhees. To ameliorate the demands of creditors, the accountant suggested defendant try to get help through a small business loan, get additional money from Voorhees, or file for bankruptcy. The accountant testified that defendant had a negative reaction to the suggestion of bankruptcy. Defendant then contacted a lawyer to institute a fraud action against Voorhees and to prepare a letter to creditors to arrange a system of monthly payments. Defendant met with a financial consultant at his store on September 19, 1991, seeking advice on how to obtain a small business loan. The consultant testified that upon review of the store’s financial records it was clear defendant was bankrupt, but she felt defendant might be able to continue doing business by managing his creditors.

On September 25, 1991, Ann Mayberry had the defendant come to her home to measure for carpeting. At that time she gave defendant a check for $1,032.99, half of the total purchase price for carpeting she ordered. Mayberry stopped by the store Monday or Tuesday of the following week, but a sign was posted, “closed for inventory.” Mayberry’s check was deposited in the store’s bank account on September 26 and she never received any carpeting or a refund of her deposit.

Romona Mooney testified the defendant measured for carpeting at her home on September 26, 1991. He told her that if she paid the full price of the carpeting at the time of order, she would receive a 10% discount. On Saturday, September 28, 1991, Mooney gave defendant a check for $2,278.38, the full purchase price of the carpet less the 10% discount. Mooney returned to the store on Monday, September 30, and saw a sign reading “closed for inventory.” She never received any carpeting or return of the funds she gave the defendant.

Frank Connoway testified that someone from Classic Carpets came out to measure carpeting for a house he was building. On September 28, 1991, Connoway gave defendant a check for $3,290, the full purchase price for his carpet order. On the following Thursday, Connoway returned to the store and saw a sign posted “filing for bankruptcy.” Connoway never received any carpeting or a return of his money.

Darrell Collonius came to the carpet store on September 28, 1991, intending to order approximately 200 yards of carpet. Defendant had an appointment with Collonius to measure for the actual yardage on September 30, 1991. Defendant phoned him on the evening of September 30 and told Collonius he could not measure due to bankruptcy. Collonius had not given defendant any money.

The defendant’s wife, Rhonda, testified that during the month of September she had paid routine bills incurred by the store. She also paid $500 on a past-due debt with the local newspaper and placed new advertising which ran in the newspaper editions of September 28 and September 30, 1991. She stated that on Sunday, September 29, 1991, as a result of the culmination of pressures and stress from the store and the sporadic receipt of paychecks by herself and defendant, she left defendant and took their child with her, not informing defendant of their whereabouts.

Defendant testified that on Monday, September 30, 1991, he received a letter dated that same day from his main carpet supplier demanding payment of $25,000 within 10 days on the store’s past-due bill or the account would be referred to collections. The afternoon of that same day, defendant and his wife contacted their attorney, then permanently closed the store.

Defendant testified that during September 1991, he paid bills such as rent and utilities for the store, made monthly payments on equipment such as the Hyster and the van, sent the carpet supplier a check for $6,000, paid the payroll for his carpet installers, and rotated the tires on the van. Defendant submitted as evidence shipping invoices from the mill indicating 13 separate carpet sales were made through the store during September, and he testified the mill attempted to deliver other shipments after the store closed its doors. He stated that at no time prior to September 30 had he intended to file for bankruptcy.

Matt Haversperger, a 19-year-old salesperson formerly employed at defendant’s store, related a conversation he had with defendant on September 23 regarding defendant’s plans for the business.

“[H]e told me that what he had planned on doing was staying open thirty or forty more days, then taking the money from the profits for what not [sic] and putting it back and starting another business, and that way I would have job security more or less if I went along with it.”

During cross-examination of Haversperger, defense counsel elicited the following testimony:

“Q. [Defense Counsel:] All right. Now, isn’t it true, he did discuss with you about the bankruptcy?
A. [Haversperger:] Yes.
Q. About the potential bankruptcy, and he discussed with you potentially finding other avenues to keep the doors open, and isn’t it true, he never said that I’m going to bankrupt this store out and run off with the money and open another business? Isn’t that what you surmised from the circumstances?
A. No, that’s what he talked about doing.”

Based on the three payments received for the purchase of carpeting by the defendant on September 25 and 28, 1991, he was indicted by the grand jury on three counts of theft by deception of over $300 pursuant to sections 15 — 4(e) and 16 — 1(a)(2) of the Criminal Code of 1961 (Code) in that he accepted currency purportedly to pay for carpeting, knowing the carpeting would not be delivered. (Ill. Rev. Stat. 1991, ch. 38, pars. 15 — 4(e), 16 — 1(a)(2).) Following a bench trial held April 1 and 2,1992, defendant was convicted on all three counts.

In determining whether the elements of the charged offense have been proved beyond a reasonable doubt, the relevant question is whether, after viewing evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789; People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, 277.) A criminal conviction will not be set aside unless the evidence is so unreasonable, impossible or unsatisfactory as to create a reasonable doubt of defendant’s guilt. In reviewing the determination of the trier of fact, a court cannot substitute its assessment of the evidence and inferences to be drawn therefrom for that of the trier of fact. People v. Bowen (1993), 241 Ill. App. 3d 608, 619, 609 N.E.2d 346, 355-56.

The State was required to prove defendant committed theft by deceptively obtaining control of his customers’ cash payments by a promise of delivery of carpeting which he did not intend to perform or knew would not be performed, and with an intent to permanently deprive the owner of the use or benefit of his property. (See Ill. Rev. Stat. 1991, ch. 38, pars. 16 — 1(a)(2), 15 — 4(e).) However, defendant’s failure to supply the carpeting to his customers is not of itself evidence that defendant did not intend to do so. (Ill. Rev. Stat. 1991, ch. 38, par. 15 — 4(e).) Defendant admitted he accepted money for carpet sales made September 25 and 28, 1991, and did not supply any of the carpeting purchased. The central issue at trial was the question of the defendant’s intent at the time he accepted payment for the carpet orders.

The trial judge, in finding the defendant guilty on all three counts, noted that defendant’s credibility was “sorely lacking.” Credibility determinations by the trial judge are entitled to great deference; it is not the function of the reviewing court to retry the defendant. (People v. Eyler (1989), 133 Ill. 2d 173, 549 N.E.2d 268.) However, in this case, the trial court’s assessment of defendant’s credibility cannot be equated with proof. That proof would have to show defendant’s intent to obtain his customers’ funds without supplying any carpeting, or permit the requisite inference of guilt to be drawn. The uncontested facts suggest that defendant was attempting to routinely continue operations. There was no evidence that defendant personally obtained any of his customers’ funds. The facts give rise to a reasonable doubt of defendant’s guilt.

The State presented two separate theories on proof of intent: (1) defendant’s intent could be shown by his knowledge of impending bankruptcy; or (2) defendant planned to “stash” customer funds intended for payment to carpet suppliers. It is not evident from the record on which, if either, of these theories the court based its determination of defendant’s guilt.

As to the first, under the language of the theft by deception statute, grounds for conviction would appear to exist if defendant obtained money for the sale of carpeting and at the same time was aware of a substantial probability the carpeting would not be delivered. (See Ill. Rev. Stat. 1991, ch. 38, par. 4 — 5(a) (knowledge defined as an awareness of the substantial probability a material fact exists).) It could be argued that anyone considering bankruptcy is aware of a substantial probability that goods being sold will not be delivered. We reject that argument. Accepting payment for goods after the decision has been made to file for bankruptcy may constitute theft by deception, but the same should not be true before the decision is finally made, even though there is some likelihood the decision will be made. A defendant should not be punished for attempting to avoid bankruptcy if at all possible. We cannot conclude the statute makes the contemplation of filing for bankruptcy, without more, sufficient to constitute theft by deception. While the filing of a petition for bankruptcy does not shelter a party and does not provide a defense to the prosecution of criminal proceedings for criminal conduct (see Barnette v. Evans (11th Cir. 1982), 673 F.2d 1250, 1251; Parker v. United States (1st Cir. 1946), 153 F.2d 66, 71; 11 U.S.C. §523(a)(2)(A) (1988)), the purpose of the theft by deception statute is to penalize criminal theft, not the decision to go into bankruptcy, which is a right available to defendant under Federal law. It is the very purpose of the Federal bankruptcy law to “ ‘relieve the honest debtor from the weight of oppressive indebtedness and permit him to start afresh, free from the obligations and responsibilities consequent upon business misfortunes.’ ” Local Loan Co. v. Hunt (1934), 292 U.S. 234, 244, 78 L. Ed. 1230, 1235, 54 S. Ct. 695, 699, quoting Williams v. United States Fidelity & Guaranty Co. (1915), 236 U.S. 549, 554-55, 59 L. Ed. 713, 716, 35 S. Ct. 289, 290.

For a merchant conducting business in the normal course, something more than his contemplation of a petition for bankruptcy is necessary to comprise criminal activity. In this case, it is the bankruptcy filing, rather than criminal activity by defendant, which has precluded performance of the three carpet contracts. The State’s evidence, through Haversperger’s testimony, indicated defendant intended to keep the store open for 30 or 40 days; had defendant been able to do so, the contracts in question could have been performed. There is no evidence defendant did not intend to perform the three contracts at the time of sale, nor is there any evidence from which the requisite inference of intent could be drawn. (Cf. People v. Riner (1992), 234 Ill. App. 3d 733, 740, 600 N.E.2d 1308, 1312 (defendant had no intention of performing his contract at the time he received payment).) The evidence shows defendant purchased a business overloaded with debt, attempted in good faith to keep it going through management of creditors’ demands, and eventually was forced to seek the protection of the bankruptcy laws. None of this is activity penalized under the criminal statute.

The State’s second theory for showing criminal intent, an alleged scheme to “stash” customer funds, is derived from the testimony of Haversperger, who said defendant planned to keep the store open 30 or 40 days, “tak[ing] all the money that we could” or “taking the money back from the profits for what not [sic]” and starting another business. While these statements can fairly be read as an anticipation by defendant of opening another business in the future with money he legitimately could make from Classic Carpets, there is no evidence defendant intended to personally retain or hide any of the payments received for the purchase of carpeting. Defendant testified without contradiction that all monies received from customers were deposited in the store’s bank account. Ann Mayberry exhibited her cancelled check payable to Classic Carpets and testified it had been stamped as deposited in the store’s bank account the day after it was tendered to defendant. There is no evidence that any part of the customers’ payments was diverted from the store’s bank account or used to pay unrelated debts of the defendant. The bankruptcy estate would have assumed control over the payments made here, for the benefit of creditors. The absence of any evidence that defendant secreted funds intended for the purchase of carpeting or used funds to pay nonbusiness expenses is inconsistent with the existence of a criminal intent to deprive customers of their property through theft by deception.

In commenting on the defendant’s lack of credibility, the court noted defendant’s testimony that he placed orders with his carpet supplier twice a month, although the evidence indicated orders had been placed as frequently as 12 times a month. Defendant’s testimony that the frequency of placing carpet orders varied appears to be consistent with the new ordering policy he initiated. In any event it is not clear what relevance defendant’s testimony had to proving that defendant intended to deprive the three customers of their property. Failure to place the carpet orders with the supplier — within the three days in which defendant might have done so prior to the store’s closure for bankruptcy — was not shown to be a deviation from prior business practice, nor did it constitute proof of an intent to deceive, as required by the statute. It was the filing of the bankruptcy petition, and not the failure to place the carpet orders with the supplier, which operated to deny the customers the carpeting they had purchased. Had defendant in fact placed orders with the supplier at the time of sale, the customers still could not have received delivery and installation of the carpeting by September 30, the date the store was closed. There is no evidence the funds received were diverted to purposes unrelated to business expenses.

We find the evidence in this case has failed to demonstrate proof of guilt beyond a reasonable doubt. Therefore, the convictions must be reversed.

Reversed.

STEIGMANN, P.J., and GREEN, J., concur.


author: PRESIDING JUSTICE McCULLOUGH JUSTICE RARICK,

text:
    WILLIAM KENNETH HICKS, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Patrick Quinn et al., Appellees).
    Fifth District (Industrial Commission Division)
    No. 5—92—0178WC
    Opinion filed October 5, 1993.

      RARICK, J., concurring in part and dissenting in part.

      Harold B. Gulley, Jr., of Raleigh, for appellant.
    L. Robert Mueller, of Livingstone, Mueller, O’Brien & Davlin, P.C., of Springfield, for appellee.
   PRESIDING JUSTICE McCULLOUGH

delivered the opinion of the court:

Claimant, William Hicks, sought compensation pursuant to the Illinois Workers’ Occupational Diseases Act (Act) (Ill. Rev. Stat. 1989, ch. 48, par. 172.36 et seq.) for impairment of his heart and lungs resulting from the inhalation of coal and rock dust. An arbitration hearing was held on September 12, 1989. Hicks testified that he was 59 years old when he left Zeigler Coal Company on January 31, 1981. He had been a miner since 1941, with the exception of a 3x/2-year tour of duty in the Air Force. While in the Air Force, Hicks obtained his general equivalency diploma (GED). Hicks began experiencing respiratory problems in 1976 or 1977. He experienced. shortness of breath upon exertion and had to stop and rest. Sometime in 1980, Hicks sustained a back and knee injury when he fell from a walkway. He left Zeigler in January 1981 because his back, knee, and breathing problems rendered him unable to perform his duties. Hicks subsequently applied for and received social security disability benefits.

Dr. William Charles Houser testified that on July 18, 1984, he examined a chest X ray of Hicks dated June 7, 1982, which revealed a category 1/2 pneumoconiosis. Houser examined Hicks again on April 26, 1988. A chest X ray taken at that time revealed a category 1/0 pneumoconiosis. Houser attributed the difference in ratings to either variations in the technique of the film or the method in which the X rays were taken. Houser’s examination also revealed that Hicks had a 10- to 12-year history of shortness of breath on exertion or activity and a cough with sputum on a daily basis. Hicks’ pulmonary function studies were normal. Based on his examination, Houser concluded that Hicks was suffering from coal miners’ pneumoconiosis caused by his employment and agreed that further exposure would cause progression of the disease and would be injurious to Hicks’ health.

On January 26, 1986, Hicks was examined by Dr. Parviz Sanjabi. Hicks’ history revealed that he had been suffering from a shortness of breath, which occurred after exertion or walking a block or two and which had been occurring for the past several years and getting progressively worse. Dr. Sanjabi also reviewed one of Hicks’ X rays. Based on the data, Dr. Sanjabi concluded that Hicks was suffering from simple pneumoconiosis caused by exposure to coal dust. Although Hicks’ pulmonary function was normal, Dr. Sanjabi indicated that normal pulmonary function was expected with simple pneumoconiosis. Dr. Sanjabi advised against further exposure to coal dust.

Two of Hicks’ X rays were examined by Dr. T.R. Marshall, a board-certified radiologist and B-reader. Dr. Marshall testified that both disclosed that Hicks was suffering from the middle stages of simple pneumoconiosis.

Hicks’ X rays were reviewed by Dr. Barton Bridges and Dr. Peter Tuteur at Zeigler’s request. Dr. Bridges, a radiologist and B-reader, testified that his review of Hicks’ X rays revealed no evidence of parenchymal abnormalities consistent with pneumoconiosis but did show some pleural changes which could be compatible with pneumoconiosis. Dr. Bridges agreed that he could not rule out pneumoconiosis. Dr. Tuteur, who is board certified in internal and pulmonary medicine, testified that while Hicks’ exposure was sufficient to produce pneumoconiosis in a susceptible host, his X.rays showed no signs of an interstitial process consistent with pneumoconiosis. His pulmonary function study and blood gas tests were both normal. Dr. Tuteur found that Hicks had mild chronic bronchitis which could have been caused by exposure to coal dust.

The arbitrator found that claimant suffered from pneumoconiosis as a result of his coal mining employment and made a finding of total and permanent disability. Zeigler sought review before the Industrial Commission (Commission), arguing for the first time that claimant failed to prove disablement within the time period required by section 1(f) of the Act (Ill. Rev. Stat. 1989, ch. 48, par. 172.36(f)). The Commission rejected Zeigler’s argument but reduced claimant’s award to permanent disablement to the extent of 15% man as a whole. The Commission ruled that because claimant failed to establish the unavailability of work, total disablement was not proved. Both parties then appealed to the circuit court, which ruled that claimant’s claim was barred by section 1(f).

On appeal, Hicks first argues that the circuit court erred in ruling that his claim was barred by section 1(f). Specifically, he contends that Zeigler waived its section 1(f) argument by failing to assert it before the arbitrator. The record discloses that Zeigler raised this argument before the Commission. While noting that compliance with section 1(f) is a statutory condition precedent to recovery, the Commission did not specifically rule on whether Zeigler’s section 1(f) argument was waived for failure to assert it before the arbitrator, instead finding that the petitioner had proved disablement within two years of the date of last exposure. The circuit court found that this conclusion was against the manifest weight of the evidence and that Hicks’ claim was therefore time-barred by section 1(f) but did not specifically address the issue of whether Zeigler’s failure to advance this argument before the arbitrator waived it. A similar argument concerning the failure to raise a section 1(f) argument before the arbitrator was advanced in the recent case of Monterey Coal Co. v. Industrial Comm’n (1992), 241 Ill. App. 3d 386, 609 N.E.2d 339. There, we concluded that because the issue was raised before the Commission, it was properly before this court. Likewise,, in the present case, Zeigler advanced its section 1(f) argument at the hearing on review before the Commission. Accordingly, the issue is properly before this court.

We next address Hicks’ argument that section 1(f) of the Act should not be applied to cases involving coal miners’ pneumoconiosis because section 1(f) conflicts with section 6(c) of the Act (Ill. Rev. Stat. 1989, ch. 48, par. 172.41(c)), thereby frustrating the effect of the presumption set forth in section 1(d) of the Act (Ill. Rev. Stat. 1989, ch. 48, par. 172.36(d)). Section 1(f) of the Act provides:

“(f) No compensation shall be payable for or on account of any occupational disease unless disablement, as herein defined, occurs within two years after the last day of the last exposure to the hazards of the disease, except in cases of occupational disease caused by berylliosis or by the inhalation of silica dust or asbestos dust and, in such cases, within 3 years after the last day of the last exposure to the hazards of such disease and except in the case of occupational disease caused by exposure to radiological materials or equipment, and in such case, within 25 years after the last day of last exposure to the hazards of such disease.” (Ill. Rev. Stat. 1989, ch. 48, par. 172.36(f).)

Section 6(c) of the Act provides in pertinent part:

“Effective July 1, 1973[,] in cases of disability caused by coal miners[’] pneumoconiosis unless application for compensation is filed with the Commission within 5 years after the employee was last exposed where no compensation has been paid, or within 5 years after the last payment of compensation where any has been paid, the right to file such application shall be barred.” (Ill. Rev. Stat. 1989, ch. 48, par. 172.41(c).)

The circuit court, relying on Goodson v. Industrial Comm’n (1989), 190 Ill. App. 3d 16, 545 N.E.2d 975, ruled that compliance with both sections 1(f) and 6(c) of the Act was required.

In Goodson, the court addressed the applicability of sections 1(f) and 6(c) to a claim for death benefits by a surviving spouse. The specific paragraph of section 6(c) in question in Goodson at the time of decedent’s death required that in cases of death occurring within 25 years from last exposure to radiological materials or equipment, application for compensation must be filed within three years of the date of death. (Ill. Rev. Stat. 1977, ch. 48, par. 172.41(c).) (“Asbestos” was added to this fifth paragraph of section 6(c) of the Act by Public Act 83 — 1125, §2 (1984 Ill. Laws 212, 255).) Relying on the principle of statutory construction that “[d]ifferent sections of the same statute should be considered as in pari materia and should be construed so as to avoid an illogical result” (Goodson, 190 Ill. App. 3d at 18, 545 N.E.2d at 976), the court held that sections 1(f) and 6(c) should be read together and that while the surviving spouse had three years from the date of death to file her claim, proof that disablement occurred within three years of the decedent’s last exposure to asbestos was a condition precedent to recovery (Goodson, 190 Ill. App. 3d at 19-20, 545 N.E.2d at 976-77).

In the present case, the claimant argued that section 6(c) provided a five-year time period for cases involving coal miners’ pneumoconiosis. Section 6(c), as it pertains to a claimant seeking benefits for coal miners’ pneumoconiosis, permits the filing of an application within five years of last exposure but requires that the employee still prove, under section 1(f), that disability arose “within two years *** of *** last exposure.” (Ill. Rev. Stat. 1989, ch. 48, par. 172.36(f).) We find that the same reasoning employed in Goodson is equally applicable to the case at bar.

Hicks also argues that strict application of section 1(f) frustrates the effect of the principles created by section 1(d). Section 1(d) of the Act provides in pertinent part as follows:

“If a miner who is suffering or suffered from pneumoconiosis was employed for 10 years or more in one or more coal mines there shall, effective July 1, 1973[,] be a rebuttable presumption that his or her pneumoconiosis arose out of such employment.” (Ill. Rev. Stat. 1989, ch. 48, par. 172.36(d).)

He maintains that the section 1(d) presumption that the disease is caused by employment logically includes a concomitant presumption that the disease, even if latent, was present at the time the employment relationship ended. He further maintains that this conflict can be resolved by application of the rules of statutory construction which state that specific statutes control over general ones and that the statutes most recently enacted prevail over older ones. We are not persuaded by Hicks’ argument. While section 1(d) creates a rebuttable presumption of a causal relationship between the claimant’s pneumoconiosis and his employment, it remains claimant’s burden to prove that he was disabled within two years of the date of his last exposure as a result of having contracted pneumoconiosis.

We next address Hicks’ contention that, assuming section 1(f) is applicable, the Commission correctly found that the evidence established that Hicks’ disablement occurred within two years of the date of last exposure. Both the arbitrator and the Commission found that the weight of the evidence demonstrated that Hicks suffered from pneumoconiosis, based upon section 1(d) of the Act Hicks was entitled to a rebuttable presumption that his pneumoconiosis arose from his employment at Zeigler, and Zeigler failed to produce evidence sufficient to rebut this presumption. Both the arbitrator and the Commission correctly found that Hicks was entitled to this presumption.

The basis of the circuit court’s ruling that the Commission’s decision was against the manifest weight of the evidence was that Hicks failed to prove disablement within the two-year time period required by section 1(f). Specifically, the circuit court found that given the lack of medical evidence originating during the two-year time frame provided by the statute, and that Hicks made no complaints to a doctor during the two years following cessation of employment, there was no credible evidence of disablement during the two-year period. In claims arising under the Act:

“It is the function of the Commission to resolve disputed questions of fact, including those of causal connection, to decide which of conflicting medical views is to be accepted and to draw permissible inferences. [Citation.] In the presence of conflicting medical opinion, the Commission’s determination is given substantial deference and will be upheld unless it is contrary to the manifest weight of the evidence. [Citation.] The Commission is the judge of the credibility of witnesses. [Citation.] It is the peculiar province of the Commission not only to determine the credibility of witnesses but also to weigh the testimony and to determine the weight to be given to the evidence. [Citations.] A reviewing court should neither overturn the Commission’s findings simply because a different inference could be drawn nor otherwise substitute its judgment for that of the Commission.” (Old Ben Coal Co. v. Industrial Comm’n (1991), 217 Ill. App. 3d 70, 83-84, 576 N.E.2d 890, 899.)

“The manifest weight of the evidence is that which is the clearly evident, plain and indisputable weight of the evidence. In order for a finding to be contrary to the manifest weight of the evidence, an opposite conclusion must be clearly apparent.” (Caterpillar, Inc. v. Industrial Comm’n (1992), 228 Ill. App. 3d 288, 291, 591 N.E.2d 894, 896.) Initially, we note that Dr. Houser testified that one of the X rays he examined was dated June 7, 1982, the year following Hicks’ departure from Zeigler. Houser testified that this X ray revealed a category 1/2 pneumoconiosis. There is, therefore, evidence beyond Hicks’ testimony of pneumoconiosis which arose during the two-year period. Further, while the fact that a claimant fails to seek medical treatment during the two-year period is a factor to be considered, it is not dis-positive. The opinions of medical experts based upon examinations occurring after the two-year period may nevertheless satisfy section 1(f) if such testimony indicates that the disabling condition arose during the two-year period. See Monterey Coal Co. v. Industrial Comm’n (1992), 241 Ill. App. 3d 386, 609 N.E.2d 339.

Hicks testified that he began experiencing respiratory problems in 1976 or 1977. Both Dr. Houser and Dr. Sanjabi testified that Hicks’ pneumoconiosis was a result of his employment, and both they and Dr. Marshall testified that further exposure to coal dust would cause further injury. This testimony sufficiently establishes that Hicks was disabled as of the time he left employment at Zeigler. Dr. Bridges testified that he could not rule out pneumoconiosis, and while Dr. Tuteur diagnosed Hicks’ condition as bronchitis caused by exposure to coal dust, he agreed that a person with pneumoconiosis should avoid further exposure to coal dust.

In the present case, the Commission based its decision on Hicks’ unrebutted testimony that he had been having breathing problems since 1976 or 1977 and Dr. Sanjabi’s diagnosis of pneumoconiosis. Dr. Houser and Dr. Marshall also diagnosed Hicks as having pneumoconiosis. These findings conflict with the findings of Dr. Bridges and Dr. Tuteur, but resolution of conflicting medical testimony is the province of the Commission. Having reviewed the record, we conclude that the Commission’s finding that Hicks became disabled within two years following the date of his last employment was not against the manifest weight of the evidence, and the circuit court erred in concluding otherwise.

Finally, we address Hicks’ contention that the Commission erred in modifying the arbitrator’s award based upon its finding that he failed to meet his burden of showing permanent and total disability. Specifically, Hicks maintains that the Commission erred in holding that he failed to demonstrate the unavailability of work to a person in his condition because he made no efforts to seek employment. Hicks contends that unavailability of work can be shown by either unsuccessful attempts to find work or by proof indicating that because of one’s age, education, and experience he is unable to perform any services for which a reasonably stable job market exists.

“A person is totally disabled when he cannot perform services except those that are so limited in quantity, dependability or quality that there is no reasonably stable market for them. ***
A claimant has the burden of proving all the elements of his case, including the extent and permanency of the injury, in order to recover benefits ***.***
* * *
If a claimant’s physical disability is limited in nature so that he is not obviously unemployable, then it is not unreasonable that the burden be upon him to establish the unavailability of work to a person in his circumstances. This burden can be met by showing that reasonable efforts were made to secure suitable employment — the kind of employment that can be performed by a person in his circumstances.” A.M.T.C. of Illinois, Inc. v. Industrial Comm’n (1979), 77 Ill. 2d 482, 487-90, 397 N.E.2d 804, 806-07.

See also E.R. Moore Co. v. Industrial Comm’n (1978), 71 Ill. 2d 353, 376 N.E.2d 206.

This burden may also be met by a showing that, in light of claimant’s age, experience, training, and education, he is unable to perform any but the most menial tasks for which no stable market exists. Interlake, Inc. v. Industrial Comm’n (1981), 86 Ill. 2d 168, 178, 427 N.E.2d 103, 108, citing Valley Mould & Iron Co. v. Industrial Comm’n (1981), 84 Ill. 2d 538, 419 N.E.2d 1159.

In the present case, the arbitrator found only that claimant could not continue work as a coal miner. None of the medical testimony shows that the claimant was totally permanently disabled. The claimant, himself, testified in answer to the question, “If it hadn’t been for your back injury and your knee injury, would you have been able to continue your job?”, “Yes, no problem.” The record is also clear that claimant made no attempt to find work and was receiving social security disability benefits for reasons unrelated to the industrial accident.

The Commission correctly found that “[claimant’s] physical disability is limited in nature so that he is not obviously unemployable.” He “has not made any efforts to seek employment.”

The only "evidence presented was that claimant finished 10 years of education, completed his GED in the military service, and worked as a coal miner all his life.

Claimant has not shown that, because of the industrial accident proved, he is so handicapped that he will not be regularly employed in the labor market. The supreme court’s statement in A.M.T.C., “[W]e are unable to ascertain from the record what type of work the claimant is capable of performing besides that of a mover, nor can we ascertain his training or capabilities,” applies in this case. A.M.T.C., 77 Ill. 2d at 490, 397 N.E.2d at 807.

For the foregoing reasons, the judgment of the circuit court of Franklin County is reversed, and the decision of the Commission is reinstated.

Reversed; Industrial Commission decision reinstated.

RAKOWSKI, WOODWARD, and STOUDER, JJ., concur.

JUSTICE RARICK,

concurring in part and dissenting in part:

I agree with the majority with respect to the interpretation and applicability of sections 1(f) and 6(c) of the Act. I likewise agree with the majority’s conclusion that the Commission’s finding that Hicks became disabled within two years following the date of last exposure was not against the manifest weight of the evidence and that the circuit court erred concluding otherwise. My disagreement with the majority’s opinion is with respect to the reinstatement of the Commission’s decision reducing Hicks’ award of permanent disability to 15% man as a whole.

As the majority notes, the Commission’s decision was based upon its finding that Hicks failed to prove total disablement because he failed to establish the unavailability of work. The majority correctly notes that it is the claimant’s burden to prove the permanency of his injury, and that where a claimant’s physical disability is so limited in nature that he is not obviously unemployable the burden is on him to establish the unavailability of work to a person in his circumstances. The majority also correctly notes that this burden may be met by a showing that, in light of claimant’s age, experience, training, and education, he is unable to perform any but the most menial tasks for which no stable market exists. I agree with the majority that the Commission correctly found that Hicks’ disablement was so limited in nature that he is not obviously unemployable, and the record supports the Commission’s conclusion that Hicks made no effort to seek employment. From reading the Commission’s decision, however, it is apparent that the Commission focused solely on Hicks’ failure to seek employment and did not consider whether his age, experience, training, and education rendered him unable to perform any tasks for which a stable job market existed when it determined that Hicks failed to prove the unavailability of work. The effect of this was to erroneously increase Hicks’ burden of proof. (See Valley Mould & Iron Co. v. Industrial Comm’n (1981), 84 Ill. 2d 538, 419 N.E.2d 1159, citing Sterling Steel Casting Co. v. Industrial Comm’n (1979), 74 Ill. 2d 273, 384 N.E.2d 1326; E.R. Moore Co. v. Industrial Comm’n (1978), 71 Ill. 2d 353, 376 N.E.2d 206.) For this reason, I would remand the cause to the Commission.


author: PRESIDING JUSTICE McCUSKEY

text:
    LEONE GRAIN AND SUPPLY, INC., Plaintiff-Appellee, v. RICHARD BOERS, Defendant (Barry J. Lauwers et al., Defendants-Appellants).
    Third District
    No. 3—93—0113
    Opinion filed September 29, 1993.

      Watts C. Johnson, of Johnson, Martin, Russell, English, Scoma & Beneke, of Princeton (Scott Madson, of counsel), for appellants.
    Herbolsheimer, Lannon, Henson, Duncan & Reagan, of La Salle (R.J. Lannon, Jr., of counsel), for appellee.
   PRESIDING JUSTICE McCUSKEY

delivered the opinion of the court:

Plaintiff, Leone Grain and Supply, Inc., filed a complaint against defendant, Richard Boers (Boers), asserting a lien on one-half of a crop grown in 1986 on land leased by Boers. An order was subsequently entered which stated that, by agreement of the parties, 50% of the proceeds from the sale of the 1986 crop would be held until a hearing on the merits. Barry J. Lauwers, Janice P. Lauwers, Charles H. Peterson and Susan M. Peterson (intervenors) later filed a petition to intervene in the action. They alleged that they leased the farmland in 1986 and Boers had no interest in the 1986 crop. Following a bench trial, the court ruled in favor of the intervenors but denied their request for attorney fees. The intervenors filed a timely notice of appeal.

The sole issue on appeal is whether the trial court erred in denying the intervenors’ request for an award of attorney fees. Because we conclude that the intervenors have not established any statutory basis for an award of attorney fees, we affirm.

On September 25, 1986, plaintiff filed its complaint against Boers. It alleged that Boers owed plaintiff $43,415.84 for agricultural products Boers purchased from plaintiff and for cash advances from plaintiff to Boers. Plaintiff also alleged that Boers had signed a security agreement on January 17, 1986. In this agreement, Boers pledged as collateral for the debt all crops growing on certain real estate. Plaintiff filed a financing statement to perfect its interest in the collateral. Copies of these documents were attached to the complaint. Plaintiff sought replevin of the collateral and a judgment for damages. Plaintiff also filed a petition for the appointment of a receiver, alleging that “the collateral property is susceptible to commingling with other property of a like kind and nature.”

On October 9, 1986, a hearing was held regarding plaintiff’s petition for the appointment of a receiver. Boers appeared pro se. Barry J. Lauwers also appeared without an attorney and testified on Boers’ behalf. Lauwers stated that Boers had been a tenant farmer on the same land for 15 years under a lease agreement. The land was held in a trust known as the Sherrard Trust and was managed by a trustee. Under the lease agreement entered into by Boers and the trustee, Boers received 50% of the crops raised on the property. Lauwers and the other intervenors were beneficiaries of the trust. Around February 1986, Lauwers and the other intervenors had Boers surrender his lease. They then leased the property from the trustee and entered into an agreement with Boers. Under the terms of the agreement between Boers and the intervenors, Boers was to continue to farm the land as a hired hand. Boers received a salary of $800 a month and did not have an interest in the crop raised on the property. The intervenors also agreed to purchase Boers’ farm equipment. In exchange for the equipment, they obtained a loan from the trust to pay off all of Boers’ debts, with the exception of his debt to the plaintiff.

After hearing this testimony and the arguments of the parties, the court stated that it would order the appointment of a receiver. The court concluded that a receiver was necessary to preserve one-half of the proceeds from the 1986 crop in the event plaintiff prevailed in the litigation. Lauwers objected to the appointment of a receiver, arguing that Boers did not have any interest in the crop. The court then suggested that, as an alternative to incurring the expenses involved in appointing a receiver, Lauwers could agree to escrow the proceeds of one-half of the 1986 crop. The court specifically informed Lauwers that because he was not a party to the action, the court could not order him to do anything. However, the court indicated that such an order could be entered by agreement.

The day of the hearing, an order was entered which stated “by agreement of the parties 50% of the crop being grown on the Real Estate owned by the ‘Sherrard Trust’ or the proceeds will be held until a hearing on the merits.” The order also stated that 50% of the crop was to be delivered to the Ladd elevator and, if sold, the proceeds were to be deposited with the clerk of the circuit court. This order was prepared by plaintiff’s counsel, initialed by Boers, and signed by Lauwers.

On February 19, 1987, an order was entered which granted plaintiff’s motion for default judgment. Judgment was entered in favor of plaintiff and against Boers in the amount of $43,415.84. The record shows that Boers subsequently filed for bankruptcy. We note that Boers is not a party to this appeal.

On March 30, 1987, the intervenors filed their petition to intervene in the action. In their petition, the intervenors alleged that they were entitled to the crop proceeds because Boers had no interest in the crop. They also requested damages for the wrongful taking and detention of the crop proceeds. On May 25, 1987, the proceeds from the sale of one-half of the 1986 soybean crop were deposited with the court. The amount of the deposit was $9,903.72.

A bench trial was held on December 17 and 18, 1991. After lengthy briefs were filed by the parties, the court issued a written opinion and order on November 12, 1992. The court found that the plaintiff was not entitled to replevin the 1986 crop because Boers had no interest in the crop. It further found that the intervenors were not entitled to an award of attorney fees based upon the wrongful taking of the crop because the proceeds were deposited with the court by agreement of the parties. After their motion for reconsideration was denied, the intervenors filed a timely notice of appeal.

The intervenors argue the trial court erred in denying their request for attorney fees based on the court’s conclusion that the October 9, 1986, order (deposit order) was entered by agreement. The intervenors contend the order was “coerced” by the trial court’s statement that it would order the appointment of a receiver. Consequently, the intervenors assert that the order must be considered an order appointing a receiver. In the alternative, they argue that the order could be considered an equitable, prejudgment attachment. Thus, the intervenors contend they are entitled to attorney fees either as a result of the erroneous appointment of a receiver or based upon a wrongful attachment order. We disagree with both arguments.

There is no common-law principle which allows the award of attorney fees either as costs or damages. (State Farm Fire & Casu alty Co. v. Miller Electric Co. (1992), 231 Ill. App. 3d 355, 359, 596 N.E.2d 169, 171.) Illinois follows the prevailing rule in the United States with respect to awards of attorney fees. (Saltiel v. Olsen (1981), 85 Ill. 2d 484, 488, 426 N.E.2d 1204, 1206.) The rule followed by most States is often referred to as the “American rule.” (Baksinski v. Northwestern University (1992), 231 Ill. App. 3d 7, 12, 595 N.E.2d 1106, 1109.) This rule provides that, in the absence of a statute or an agreement, a successful litigant in a civil action may not recover attorney fees or the ordinary expenses of litigation from his adversary. (Saltiel, 85 Ill. 2d at 488, 426 N.E.2d at 1206; Fischer v. Brombolich (1993), 246 Ill. App. 3d 660, 663, 616 N.E.2d 743, 745.) In this appeal, no claim has been made that there was an agreement between the parties concerning attorney fees. Also, we note that the interveners have not cited any statutory provision which would support their claim for attorney fees.

The interveners base their claim for attorney fees on the assertion that the trial court’s order should be considered either an order appointing a receiver or an attachment order. However, the record shows that the trial court’s deposit order did not order an attachment or the appointment of a receiver. Instead, the order provided, by agreement of the parties, that the proceeds of the sale of one-half of the 1986 crop would be deposited with the court. A trial court may properly order the deposit of funds with the court pending the outcome of the litigation where the funds which are the subject of the order are also the subject of the dispute. (Allstate Insurance Co. v. Rizzi (1993), 252 Ill. App. 3d 133; American Re-Insurance Co. v. M G I C Investment Corp. (1979), 73 Ill. App. 3d 316, 324-25, 391 N.E.2d 532, 539.) Such an order is properly entered when the parties to the litigation agree to deposit funds in an escrow account. (Computer Teaching Corp. v. Courseware Applications, Inc. (1989), 191 Ill. App. 3d 203, 206, 547 N.E.2d 718, 720-21.) This type of agreed order is to be encouraged as “[i]t accrues to the benefit of both the litigants and the court when an amicable arrangement for the safeguarding of disputed funds is created.” Computer Teaching Corp., 191 Ill. App. 3d at 206, 547 N.E.2d at 721.

After reviewing applicable case law, we conclude that the interveners’ claim of attorney fees has no merit. The interveners rely on Fox v. Fox Valley Trotting Club (1953), 349 Ill. App. 132, 110 N.E.2d 84, in support of their argument that the order may be considered an order appointing a receiver. Fox is distinguishable, however.

In Fox, the trial court ordered the defendant to file a surety bond of $75,000 within five days “in lieu of the appointment of a receiver.” (Fox, 349 Ill. App. at 134.) On appeal, the court determined that the deposit was compelled by the court and was tantamount to the appointment of a receiver. (Fox, 349 Ill. App. at 135.) The court then found that the trial court abused its discretion in ordering the appointment of a receiver based on the facts of that case. Fox, 349 Ill. App. at 137-39.

The circumstances here are entirely different. Fox involved an order of the court requiring the defendant to file a surety bond. As previously noted, the deposit order here reflected the parties’ agreement to deposit with the court the proceeds of the sale of one-half of the 1986 crop. The court specifically recognized that it could not order any action by Lauwers, who at that time had not yet intervened and was not a party to the action.

We recognize that, under section 2 — 415(a) of the Code of Civil Procedure, reasonable attorney fees may be awarded where the appointment of a receiver is revoked or set aside. (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 415(a).) Here, however, a receiver was never appointed. Therefore, no order appointing a receiver was ever revoked or set aside. Based on these facts, the statute clearly does not apply.

We also recognize that courts have held that an attachment debtor has the right to maintain an independent tort action against an attachment creditor for damages incurred as a result of a wrongful attachment. (Gale v. Transamerica Corp. (1978), 65 Ill. App. 3d 553, 556-57, 382 N.E.2d 412, 415; Baird v. Liepelt (1965), 62 Ill. App. 2d 154, 156-57, 210 N.E.2d 1.) The damages recoverable in such an action include the reasonable attorney fees incurred in setting aside the attachment order. (Gale, 65 Ill. App. 3d at 557 n.2, 382 N.E.2d at 415 n.2; Baird, 62 Ill. App. 2d at 156-57.) However, this is a narrow exception to the “American rule” regarding attorney fees and only applies to a separate tort action for attorney fees actually incurred in setting aside an attachment. See Neri v. J.I. Case Co. (1991), 207 Ill. App. 3d 409, 414, 566 N.E.2d 16, 19-20; Owens v. New York Life Insurance Co. (1966), 67 Ill. App. 2d 92, 96, 214 N.E.2d 566.

The narrow exception cited above has no application in this appeal. The interveners contend that the deposit order can be considered an equitable, prejudgment attachment. However, it has specifically been held that a deposit order does not amount to an “equitable attachment.” (American Re-Insurance Co., 73 Ill. App. 3d at 325, 391 N.E.2d at 539.) In addition, the instant appeal does not involve a separate tort action seeking damages for a wrongful attachment.

Under the American rule, the interveners are clearly not entitled to attorney fees based solely on the fact that they prevailed at trial. Because the interveners have been unable to cite any specific authority supporting their claim for attorney fees, we conclude that the trial court properly denied their request.

For the reasons indicated, the judgment of the circuit court of Bureau County is affirmed.

Affirmed.

SLATER and LYTTON, JJ., concur.


author: JUSTICE SLATER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JERRY LUCAS, Defendant-Appellant.
    Third District
    No. 3—92—0531
    Opinion filed October 5, 1993.

      Frank W. Ralph, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Greg McClintock, State’s Attorney, of Monmouth (John X. Breslin and Nancy Rink Carter, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE SLATER

delivered the opinion of the court:

Following a jury trial, defendant Jerry Lucas was convicted of unlawful possession of a stolen motor vehicle (Ill. Rev. Stat. 1991, ch. 951/2, par. 4 — 103(a)(1)) and sentenced to 10 years’ imprisonment. On appeal, defendant contends that evidence of other crimes was improperly admitted at trial. We affirm.

At approximately 7:30 p.m. on February 11, 1992, Bradley Johnson parked his company car, a 1988 Lincoln Town Car, outside a tavern in Monmouth, Illinois. Johnson left the car unlocked, with the keys in the ignition and the engine running, while he went inside for about 10 minutes to give something to a bartender in the tavern. When Johnson went back outside the car was gone. He called the police and informed them that the car had been stolen. Johnson gave the police a description of the car including the license plate number.

Officer Kip Canfield of the Galesburg police department was on routine patrol in Galesburg in the early morning hours of February 12, 1992. Before beginning his shift, Officer Canfield had read a dispatch from the Monmouth police department concerning the stolen 1988 Lincoln Town Car. At approximately 12:30 a.m., he saw the car described in the dispatch going the wrong way on a one-way street in downtown Galesburg. He followed the car for a few blocks then activated his red lights. The car pulled over, and a man whom Canfield identified as the defendant exited from the driver’s side of the car. Upon questioning by Canfield, defendant stated that his name was Jerry Patterson. Canfield conducted a pat-down search of defendant and discovered a wallet. An Illinois identification card inside the wallet bore the name Jerry B. Lucas as well as a photograph of defendant.

Canfield interviewed defendant at the Galesburg police department. When asked about the stolen vehicle, defendant stated that he had been at his mother’s house in Monmouth when an acquaintance named James came over and asked defendant if he wanted to go to the Player’s Club, a bar in Galesburg. Defendant then went with James to the bar. At some point, James told defendant he wanted to remain at the Player’s Club and that defendant could take the car to another bar and leave James behind. Defendant then drove to Andrew’s Lounge, another bar in Galesburg. He stated that some other people went to Andrew’s Lounge with him, but he would not say who those other people were. After being at Andrew’s Lounge for a while, defendant left and was driving to his grandmother’s house when he was stopped by Canfield.

Two acquaintances of defendant who saw him in Galesburg on February 11, 1992, testified on behalf of the State. Donovan Newland testified that he was at the Player’s Club in Galesburg with a friend when he saw defendant playing pool. Defendant told Newland that he had ridden to the bar in his sister’s car with a friend, but the friend had gotten drunk and left. Newland never saw the defendant with anyone else at the Player's Club. After being at the bar for some time, Newland and some friends decided to go Andrew’s Lounge. Before leaving the Player’s Club, Newland looked for defendant but could not find him. Newland went to Andrew’s Lounge and stayed until the bar closed. He never saw defendant at Andrew’s Lounge. Newland’s testimony was essentially corroborated by the testimony of Jeff Dowding, another acquaintance of defendant.

Officer David Brooks of the Monmouth police department testified concerning a statement defendant made to him at the Warren County jail on February 12, 1992. Defendant stated that he lived with his mother and her husband in Monmouth. At approximately 6 p.m. the previous evening, he walked to a grocery store near his house. While he was walking home, a white male asked defendant if he wanted a ride home. The man was driving the stolen Lincoln Town Car. Defendant could not remember the man’s name. Defendant accepted the ride and was taken to his house. The man then asked defendant if he wanted to go to the Player’s Club that night, and defendant agreed to go. The man returned to defendant’s house later that evening, and they drove to the Player’s Club. Defendant gave Brooks the name of three persons, including Newland and Dowding, who would be able to confirm that defendant had been at the Player’s Club with another person. Later that night, defendant drove the Lincoln Town Car to Andrew’s Lounge. Some friends of his followed in another car. Defendant walked into Andrew’s Lounge, then turned around and walked back out. He did not see his friend’s car in the parking lot when he came back out, so he decided to leave. Defendant stated that he was on his way to his grandmother's house when he was stopped by the police.

Defendant presented no evidence at trial. The jury found defendant guilty of unlawful possession of a stolen motor vehicle.

On appeal, defendant argues that the trial court improperly allowed the State to introduce irrelevant and prejudicial evidence concerning a four-year old warrant issued for defendant’s arrest in the State of Texas. During Officer Canfield’s testimony concerning his interrogation of defendant, the following colloquy occurred:

“MR. McCLINTOCK [State’s Attorney]: What did you talk about, just generally?
A. Well, first off, we had found there was a[n] active warrant for his arrest.
* * *
Q. Subsequent to that conversation did you have a conversation with him about anything else?
A. Yes, I did.
Q. What was that conversation about?
A. It was about his warrant.
MR. CAVANAUGH [Defense Attorney]: I object again, Judge.
THE COURT: Overruled.
MR. McCLINTOCK: Where was that warrant from?
A. Dallas, Texas.
Q. What was the warrant for?
A. Escape.
***
Q. Officer, the warrant that you mentioned was active at that time?
A. Yes, it was.
Q. Did the information concerning that warrant specify the defendant’s name or names?
A. Yes, it did.
Q. What name or names did it specify in that warrant?
A. The name on the warrant was Jerry Bernard Lucas.
Q. Did it have any other names associated with it, or alias names?
A. Yes. It had one other alias.
Q. And what was that?
A. Anthony Patterson.
Q. Did you have any conversation that evening about the defendant and his name or names?
A. Yes.
Q. What did he indicate to you during that conversation?
A. He advised me that he had changed his name to Jerry Patterson.”

It is well settled that evidence of other crimes is inadmissible if relevant merely to show the defendant’s propensity to commit crime. (People v. Lindgren (1980), 79 Ill. 2d 129, 402 N.E.2d 238.) The obvious reason for this prohibition is that such evidence tends to overpersuade the jury, which might convict the defendant only because it feels he or she is a bad person deserving punishment. Lindgren, 79 Ill. 2d at 137, 402 N.E.2d at 242.

The State argues that the officer’s testimony was relevant and admissible because it was “part of the continuing narrative discussing all the circumstances of defendant’s arrest and questioning.” We disagree. Defendant was stopped and arrested because he was driving a vehicle that had been reported stolen, not because of the outstanding warrant. The facts and circumstances surrounding the arrest and questioning could have been easily and sufficiently explained without admission of the prejudicial testimony concerning the warrant.

The State also claims that the testimony concerning the warrant was admissible because the name listed in the Texas warrant as an alias used by defendant was similar to the name defendant first gave to Officer Canfield. Again, we disagree. The identity of the man found driving the stolen car in Galesburg was not an issue in this case. If the State wanted to show that the defendant gave a false name when he was arrested, Officer Canfield could simply have testified that defendant first said his name was Jerry Patterson. Even if this was the same name listed in the Texas warrant as an alias used by defendant, which it was not, we fail to see how evidence concerning any alias used by defendant could possibly be relevant to this case. Because the evidence concerning the Texas warrant had no probative value on the issue of defendant’s guilt, we find that the admission of that evidence was error.

However, the erroneous introduction of evidence of other crimes does not constitute per se grounds for reversal where the evidence as a whole shows that the accused is guilty beyond a reasonable doubt. (People v. Pittman (1984), 126 Ill. App. 3d 586, 467 N.E.2d 918; People v. Nicholson (1978), 61 Ill. App. 3d 621, 377 N.E.2d 1063.) Defendant argues that the error should not be found to be harmless because this was a “close case.” Defendant contends that although the State may have proved that he possessed the stolen vehicle in Galesburg, which is in Knox County, the State failed to establish that he possessed the car in Monmouth or anywhere else in Warren County as alleged in the charging instrument.

While the evidence was circumstantial, we believe that the State established beyond a reasonable doubt that defendant possessed the stolen vehicle in Warren County. The evidence showed that defendant was in Monmouth at the time the vehicle was stolen. He was found driving the vehicle a few miles over the county line approximately five hours after it had been stolen. Moreover, defendant gave contradictory, improbable and unsubstantiated explanations as to why he was in possession of the stolen vehicle. In light of the evidence presented, we find that the error committed by the admission of evidence concerning the Texas warrant was harmless.

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

Affirmed.

McCUSKEY, P.J., and LYTTON, J., concur.