author: JUSTICE UNVERZAGT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. STUART SMITH, Defendant-Appellant.
    Second District
    No. 82—641
    Opinion filed June 6, 1984.

      John S. Biallas, of St. Charles, and Randy Johnson, of Elgin, for appellant.
    Robert J. Morrow, State’s Attorney, of Geneva (Phyllis J. Perko and Raymond L. Beck, both of State’s Attorneys Appellate Service Commission, of Elgin, and John X. Breslin and Rita Kennedy Mertel, both of State’s Attorneys Appellate Service Commission, of Ottawa, of counsel), for the People.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

The defendant was found guilty of misdemeanor theft (Ill. Rev. Stat. 1981, ch. 38, par. 16 — 1(a)) after a bench trial in the circuit court of Kane County. The circuit court enhanced his sentence to a Class 4 felony after finding that he had been convicted of a prior theft (Ill. Rev. Stat. 1981, ch. 38, par. 16(e)(1)) and sentenced him to one year in the Department of Corrections. He argues on appeal that the trial court erred in denying his motion to suppress evidence discovered in the trunk of his car and that the State failed to prove him guilty beyond a reasonable doubt of theft.

The defendant and Samuel Haley were charged by indictment with burglary and theft in that they knowingly exerted unauthorized control over property of another in excess of $300 with the intent to deprive its owner permanently of its use. The State nolle prossed the charges against Haley. Prior to trial, the defendant filed a motion to suppress evidence seized from the trunk of his car. The hearing on this motion and his trial were held concurrently.

Aurora Patrolman Charles Davis testified that after receiving a radio call at 10:01 p.m. on January 1, 1982, concerning a burglary on North May Street, he drove to the 700 block of May Street and parked his marked squad car. After a short period of time, he saw in his rear view mirror a white Thunderbird pull out of a parked position from the 800 block. The car’s headlights were not on. The officer followed the car as it circled the block, observing that it traveled at a higher than normal rate of speed, and eventually stopped in a driveway at 713 North May Street, the defendant’s residence. The driver, identified at trial as the defendant, exited the car and walked toward the squad car as Officer Davis exited the squad car and walked towards the defendant’s car. Officer Davis requested identification from defendant and informed him that he stopped him for driving without the headlights on. The officer granted the defendant’s request to get identification from his home after being informed that the defendant did not have his driver’s license on his person. The passenger in the car then identified himself as Samuel Haley.

When the defendant returned, Officer Davis told him that he stopped the car because a burglary had just occurred and his car pulled out in a suspicious manner without its headlights on. The defendant responded that he was leaving from the house of his friend, Johnny. The officer informed him that a television had been taken and asked if he could look in the car’s trunk. Officer Davis opined that he asked this question in a manner in which the defendant could have declined to grant him permission to look in the trunk. The defendant told him that there was a television in the trunk of the car which belonged to Johnny who had left it in there after the defendant helped move some of his property. Officer Davis responded that if he saw the television he could determine if it came from the burglary and the defendant then opened the trunk. The black and white television found in the trunk was one which was stolen in the burglary. Officer Davis denied that he verbally or physically coerced the defendant to open the trunk and, having no basis to believe that the defendant committed the burglary, wanted to give the defendant the opportunity to clear himself.

After placing the defendant under arrest, the defendant volunteered that he was not involved in the burglary and that Johnny had taken the property. He directed the police to a shed in back of 804 North May Street, Johnny’s address, where other proceeds of the burglary were located: two stereo speakers and a stereo component. While being transported to the police station and during the booking process, the defendant continued to deny involvement in any burglary and blamed Johnny. He told the officers that Ronnie Simmons and Johnny were probably selling the color television, also taken from the burglary, at that very moment.

Sergeant Jeff Nelson of the Aurora police department who, along with Officer Johnson, gave Miranda warnings to the defendant the next morning, testified that the defendant told them that he had been home with friends on January 1 when Johnny, also referred to as Baby Johnny and known as John Reyes, arrived with the black and white television and stereo and offered to sell them to him and the others. After no one cared to purchase them, and he refused to store them in his home for Johnny, he agreed to drive Johnny and these items to Johnny’s home. The defendant knew they were stolen from what Johnny had told them. He admitted aiding Johnny in moving the items. He further indicated, however, that he never intended to keep any of the items. At the time he was arrested, the defendant had just dropped Johnny off, and intended to drop Haley off, and then return to pick up Johnny and take him to another part of town.

The parties stipulated that Officer Mark Johnson’s testimony would be the same as Sergeant Nelson’s testimony.

Evidence established that the residence where this property was located had been broken into that evening. The value of the property taken was less than $300.

Some of the people who were present with the defendant at his home on January 1 testified in his behalf. Samuel Haley said that he arrived at the defendant’s home around 1 p.m. and watched TV with the others. The defendant remained home the entire time. Johnny, whom he had never met before, arrived at 10 p.m. He was sweaty and breathing hard, and carried a stereo component. He asked the defendant if he wanted to buy it and the defendant refused. Around 20 minutes later, he brought in two speakers and then later the television. The defendant told him to take those items out of his house and refused to let him leave them there. The defendant agreed to drive Johnny to Johnny’s mother’s house. He never handled the items. At Johnny’s house, Johnny removed the component and speakers from the trunk but left the television in the trunk so that he could take it to a party. When they left Johnny’s house, they were going to go back to the defendant’s house and pick up his girlfriend, Diane, drop off Haley at his house, and then pick up Johnny to take him to the Holiday Inn.

Diane Garcia testified that Sam Haley arrived in the early afternoon. She and the defendant went to her mother’s house at 1:30 p.m. and returned home at 3:30 p.m. Johnny arrived that evening while she was watching a movie on television in the living room. He went into the basement to join the defendant and Sam Haley. He returned to the living room, went back into the basement, and then left and returned carrying speakers. She saw the defendant open the trunk and Johnny place the items in it when the defendant agreed to drive Johnny home.

Ronald Simmons testified that he arrived at the defendant’s home at 8:30 p.m. While watching television in the living room, the defendant, Sam Haley, and Johnny Skaggs went into the basement at around 9:30 p.m. At around 10:15 to 10:30 p.m., the defendant came up with Baby Johnny. When he first saw Baby Johnny, he was breathing hard and sweating. He followed Johnny downstairs where he saw the television and component which Johnny asked him if he wished to purchase. Later, Johnny brought in the speakers. The defendant told Johnny to get the stuff out of his house. At a later date, Baby Johnny told him that he committed the burglary himself.

On rebuttal, Officer Jeffrey Nelson testified, to impeach Sam Haley, that Sam Haley told him that “they” took the property to the car and that Johnny and the defendant removed the property from the car and placed it in the shed. His police report referred to “they” without mentioning any names. He further said that Sam told him that the defendant was going to take Johnny to the Holiday Inn area to sell the television. The officer further testified that Ronald Simmons told him that he never went into the basement that evening, and that Diane told him that she never saw the television or the stereo.

The trial judge found the defendant not guilty of burglary and guilty of misdemeanor theft. After denying the defendant’s post-trial motion, and finding that the defendant had been convicted of a prior theft, the judge sentenced him to one year in the Department of Corrections on June 14,1982.

The defendant appealed, raising these issues:

(1) Whether defendant’s consent to the search of his car was free and voluntary and not vitiated by the police officer’s failure to advise him of his Miranda rights or failure to have sufficient grounds to believe that defendant had participated in criminal activity when he stopped defendant for a traffic violation; (2) Whether the State proved beyond a reasonable doubt that defendant exerted unauthorized control over stolen property with the intent to deprive its owners permanently of its use where defendant was arrested in possession of stolen property.

The defendant urges that the trial court erred in denying his motion to suppress. He claims that if police officer Davis stopped his car for a traffic violation, the officer had no basis on which to search the trunk. In the alternative, the defendant argues, if police officer Davis stopped his car for suspected criminal activity, he was entitled to be advised of his Miranda rights prior to any questioning. Defendant fails, however, to cite any authority in support of the above contentions. He continues that the State failed to prove by clear and positive testimony that his consent to the search of the trunk was not the result of duress or coercion, actual or implied, but was unequivocal, specific, and freely and intelligently given, citing People v. Haskell (1968), 41 Ill. 2d 25, overruled on other grounds by People v. Nunn (1973), 55 Ill. 2d 344, cert. denied (1974), 416 U.S. 904, 40 L. Ed. 2d 108, 94 S. Ct. 1608.

The trial court denied the defendant’s motion to suppress on the basis that the defendant gave a valid and voluntary consent to Officer Davis’ request to look inside the trunk of his car. It is well established that a party may consent to a search conducted without a warrant but, that in order for the consent to be considered a waiver of his fourth amendment rights, the State must prove by a preponderance of the evidence that the consent was voluntarily given. (People v. Holliday (1983), 115 Ill. App. 3d 141, 143.) The voluntariness of a consent depends not upon any single criterion but, rather, upon all of the circumstances under which the consent was given. (People v. Wahlen (1982), 111 Ill. App. 3d 194, 196.) Since the voluntariness of the consent is a factual question, the trial court’s finding in this regard will be upheld unless it is found to be clearly unreasonable. People v. Salgado (1980), 83 Ill. App. 3d 653, 656.

The record supports the trial court’s determination in this regard. The evidence affirmatively establishes that Officer Davis’ conduct vis-a-vis defendant did not coerce him into consenting to the search. The officer had a legitimate basis on which to stop the defendant for a traffic violation. He never restrained the defendant and permitted him to leave the scene of the stop in order to get identification. He explained the reason why he wished to look in the trunk of the car and opined that he asked the question in a manner so that the defendant could decline. (Cf. People v. DeLisle (1982), 104 Ill. App. 3d 297, 300-01 (a consent may be involuntary where the defendant must choose between consenting or being arrested).) Although Officer Davis did not advise the defendant that he could refuse to consent, the law does not mandate such an advisement, although it is a factor to be considered in determining the voluntariness of the consent. (People v. Haskell (1968), 41 Ill. 2d 25, 31; People v. Wahlen (1982), 111 Ill. App. 3d 194, 197.) Indeed, ignorance of knowledge of the right to refuse to consent does not vitiate the voluntariness of the consent. (People v. Brett (1984), 122 Ill. App. 3d 191, 196.) Under these circumstances, it is clear that the defendant could have declined to grant Officer Davis permission to search the trunk of the car and that his decision to grant the request was free and voluntary. The defendant’s decision to permit the search of his car may be viewed as tactical. The defendant may have believed that cooperation with the police would enable him to clear himself of the charges or to receive leniency.

The defendant argues his case by proposing that Officer Davis either stopped him for a traffic violation and thus had no basis to suspect him of criminal activity in relation to the burglary, or suspected him of such criminal activity and thus, since he was the person on whom the investigation had centered, needed to advise him of his Miranda rights prior to posing any questions. This analysis ignores the third possibility which the facts indicated occurred here: that Officer Davis stopped the defendant for a traffic violation and suspected him of criminal activity in relation to the recent burglary. The defendant does not contest that Officer Davis had a legitimate basis upon which to stop him. After the stop, nearby the scene of the burglary, the officer’s subsequent inquiry concerning the recent burglary resulting from the arousal of his suspicions can be deemed permissible as an on-the-scene inquiry. See People v. Gore (1983), 116 Ill. App. 3d 780, 784.

This questioning of the defendant did not require Officer Davis to administer Miranda warnings to the defendant since the defendant was not in custody based upon criminal activity related to the recent burglary. As the court noted in People v. Ricketson (1970), 129 Ill. App. 2d 365, 377, where a motorist who has been stopped and arrested for a motor vehicle violation is questioned regarding other possible criminal offenses because of the then existing suspicious circumstances, he is not subject to custodial interrogation giving rise to the requirement that Miranda warnings be administered. (See also People v. Helm (1973), 10 Ill. App. 3d 643, 647-48.) Furthermore, even if the defendant was in custody, the lack of Miranda warnings would not vitiate the defendant’s consent since they are not required prior to obtaining consent. As the court found in People v. Wegman (1981), 101 Ill. App. 3d 634, 638, continued questioning of a defendant after Miranda warnings had been given and the defendant requested an attorney did not vitiate the subsequent consent since Miranda warnings apply to incriminating evidence of a testimonial nature. Thus, while courts will consider whether a defendant had been given Miranda warnings prior to consenting to a search, it is only one factor to consider in determining the voluntary nature of the consent. See People v. Meddows (1981), 100 Ill. App. 3d 576, 583, cert. denied (1982), 459 U.S. 855, 74 L. Ed. 2d 107, 103 S. Ct. 123.

The defendant’s attempt to distinguish People v. Ricketson (1970), 129 Ill. App. 2d 365, is unpersuasive. In Ricketson, an Itasca police officer followed and then stopped a car which was in violation of the State motor code. After the defendant identified himself, the police officer, without mentioning the existence of a code violation, noted that the defendant was from Chicago and asked him what he was doing in the area. The officer observed a briefcase in the rear seat of the car with embossed initials differing from those of the defendant and asked him what was in it. The defendant opened the briefcase for him in which burglary utensils were uncovered. A television and radio were then uncovered when the defendant lifted a blanket which had been lying over them. The court found that the consent to the search of the briefcase was valid and once burglary utensils were discovered, probable cause arose to search the remainder of the car. (129 Ill. App. 2d 365, 372.) The court continued that while the stop was technically an arrest, Miranda warnings were not required. (129 Ill. App. 2d 365, 377.) The defendant here argues that Ricketson is factually distinguishable because the circumstances there indicated that the police officers were able to determine that something other than a routine traffic violation was involved. However, rather than distinguishable, it appears that in the instant case, similarly, Officer Davis believed that something other than a traffic violation was involved based upon the suspicions aroused when the defendant’s car pulled away from a location near the burglary without its lights on and traveling at a faster than normal rate of speed.

The defendant’s concluding remark that the request to search the trunk constitutes the functional equivalent to a solicitation for incriminating information and thus requires Miranda warnings lacks merit. Indeed, the defendant has not cited any case authority to support this proposition and research discloses none. As the above analysis explains, courts have found that a defendant’s lack of knowledge that he need not consent to the search or the failure of the police officer to inform him of his right to refuse to consent does not vitiate the consent. Therefore, the trial court did not err in denying the defendant’s motion to suppress.

The defendant next argues that the State failed to prove beyond a reasonable doubt that he knowingly exerted unauthorized control over stolen property and that he intended to deprive the owner permanently of its use. Since all of the witnesses in defense testified that he wanted to remove Johnny and the stolen items from the premises and only drove Johnny and the items to accomplish this end, the evidence, according to the defendant, does not establish that he had a criminal intent. He further urges that he cannot be held accountable for the acts of Baby Johnny because the evidence is circumstantial and his acts can be attributed to an innocent cause-to get Johnny and the items out of his home.

To sustain a conviction of theft, the State must prove beyond a reasonable doubt that the property was in fact stolen and that the defendant knowingly exerted unauthorized control over the stolen property intending to deprive the owner permanently of its use. (People v. Kostatinovich (1981), 98 Ill. App. 3d 611, 614.) A defendant can be found guilty of theft solely on the basis of knowingly exerting unauthorized control over the property of another at the time of arrest because the crime of theft is not limited to the original taking of the property. (People v. Sherman (1982), 110 Ill. App. 3d 854, 857.) Generally, the intent to permanently deprive the owner of the use of the property is proved by circumstantial evidence. (110 Ill. App. 3d 854, 859.) It can be inferred from all of the facts and circumstances of the case including the defendant’s recent, exclusive and unexplained possession of stolen property. (People v. Martin-Trigona (1982), 111 Ill. App. 3d 718, 722.) When the theory of guilt is based not upon the taking of the property but upon the exertion of unauthorized control, the State need not show that the possession was recent. (People v. Mertens (1979), 77 Ill. App. 3d 791, 796.) Without a reasonable explanation by the defendant, his recent and exclusive possession of stolen property gives rise to an inference of guilt which can sustain a conviction in the absence of other facts and circumstances which leave in the mind of the trier of fact a reasonable doubt as to the guilt of the accused. People v. Sherman (1982), 110 Ill. App. 3d 854, 859.

In the instant case, the record indicates that the State attempted to prove at trial that the defendant took the property as well as exerted unauthorized control over it. (See People v. Petitjean (1972), 7 Ill. App. 3d 231, 233.) The trial court, which found the defendant not guilty of burglary, appears to have relied upon the latter theory in finding the defendant guilty of theft. The defendant, nevertheless, argues that evidence setting forth an explanation for his possession of the stolen property precludes the finding of guilt. However, to negate the inference of guilt, the explanation offered by the defendant must be reasonable, a fact question for the trier of fact. (People v. Tribett (1977), 54 Ill. App. 3d 777, 782.) Indeed, a defendant’s explanation may be rejected even if it remains uncontradicted. (People v. Sherman (1982), 110 Ill. App. 3d 854, 860-61.) As the court explained in People v. Hanson (1968), 97 Ill. App. 2d 338, 342:

“When the courts speak of an explanation they do not mean that any explanation overcomes the inference of guilt. It must be a satisfactory explanation — one that the trier of fact finds reasonable and acceptable. This does not mean that a defendant must assume the burden of giving a satisfactory explanation for the possession of stolen property or be found guilty if he does not, for the burden is always upon the State to prove him guilty beyond a reasonable doubt. It does mean, however, that the inference arising from the recent and exclusive possession of stolen property casts the burden of going forward with the evidence upon the defendant. If no explanation is made the inference maintains and the weight to be given it is for the trier of fact to decide. If an explanation is made, the acceptance or rejection of the explanation is also for the trier of fact.”

In the instant case, the trial court as fact finder must have disbelieved that the defendant did not intend to deprive the owner permanently of the stolen property. Since this factual finding is not improbable, no reasonable doubt has been raised as to the defendant’s guilt. Indeed, the evidence adduced at trial reveals contradictions in the defendant’s theory. For example, the defendant’s statements to the police that Ronnie Simmons and Johnny were probably selling the color television at that very moment belies his theory at trial that he was stopped shortly before he was going to pick up Johnny and take him to another place. Furthermore, several of his witnesses were impeached by the testimony of Officer Nelson relating statements they made. Therefore, the trial court’s finding that the defendant committed theft should be affirmed.

The defendant further argues that he was not proven guilty beyond a reasonable doubt under the doctrine of accountability relying solely on People v. Trapps (1974), 22 Ill. App. 3d 1029. However, that case is inapposite because the defendant was found guilty there of theft based on the taking of the property. (See People v. Kostatinovich (1981), 98 Ill. App. 3d 611, 614 (where State establishes theft by taking and that defendant participated but not that the defendant took the property, it must prove that the defendant aided and abetted the person or persons who actually took the property).) Here, the defendant’s possession of the stolen television would support his conviction either as a principal or under the accountability doctrine. His act of transporting the television represents an act aiding and abetting the commission of the offense of theft by possession.

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

Judgment affirmed.

HOPF and NASH, JJ., concur.


source: Caselaw Access Project

author: JUSTICE LINDBERG

license: Public Domain

text:
    JACK L. HARGROVE et al., Plaintiffs-Appellants, v. GERILL CORPORATION et al., Defendants-Appellees.
    Second District
    No. 83—736
    Opinion filed June 6, 1984.

      Alexander R. Domanskis and Michael H. King, both of Ross & Hardies, of Chicago, and Aldo E. Botti and John N. Pieper, both of Botti, Marinaecio & Maksym, of Oak Brook, for appellants.

      Frederic J. Artwick, of Sidley & Austin, Jay Statland, of Murphy & Boyle, and John T. McGarry, all of Chicago, and John Franklin Rosch, Ltd., of Glen Ellyn, for appellees.
   JUSTICE LINDBERG

delivered the opinion of the court:

Plaintiffs appeal from the dismissal by the circuit court of Du Page County of their complaint for an equitable mortgage. Because the complaint fails to state a cause of action, we affirm.

On July 29, 1983, plaintiffs Jack L. Hargrove and Jack L. Hargrove Builders, Inc. (Hargrove Builders), filed the complaint in the present action to foreclose upon an equitable mortgage. Named as defendants were Gerill Corporation, Gerald A. Heinz, and John F. Rosch (“defendants” collectively), as well as numerous other parties who, though having interests in the property sought to be foreclosed, are not alleged to have been party to the contract or debt asserted to have given rise to the equitable mortgage.

The complaint alleges the following facts. Gerill Corporation and Hargrove Builders entered into a partnership for the development of certain parcels of real estate in Woodridge, Illinois (Woodridge properties), which were owned by Gerill Corporation. In return for Hargrove Builders’ undertaking the primary role in the development of the Woodridge properties, Hargrove Builders was given a 50% beneficial interest in the properties as security. In order to provide funding for the partnership, plaintiffs borrowed about $352,000 from Concordia Federal Savings & Loan Association. This “Concordia loan” was secured by a mortgage on property in Crestwood, Illinois, owned solely by plaintiffs. By December 1980, the partnership owed plaintiffs $200,000 in addition to its obligations regarding the Concordia loan. On March 1, 1981, plaintiffs and defendants entered into an agreement through which Hargrove Builders withdrew from the partnership and its place was taken by John Rosch. By the terms of the agreement, Hargrove Builders agreed to convey its interest in the Woodridge properties to Rosch, defendants agreed to assume all of plaintiffs’ liabilities relative to the Woodridge properties, and Rosch agreed to pay Hargrove Builders $200,000. Despite this agreement, defendants defaulted on their promise to pay plaintiffs’ liabilities, including the Concordia loan, resulting in a threatened mortgage foreclosure against Hargrove Builders’ Crestwood property.

Pending at the time of the dismissal of the present action was a consolidated action in Du Page County Circuit Court involving many of the same facts and issues. Originally filed in the circuit court of Cook County, an action by the present plaintiff against some of the present defendants for injunctive and other relief was transferred to Du Page County as No. 82 CH 1135 and was consolidated with No. 82 CH 1032, an action by the present defendants against the present plaintiffs and Concordia Federal Savings and Loan Association.

Plaintiffs first contend that the procedure followed by the trial court in dismissing their complaint was improper and requires reversal. Plaintiffs protest three aspects of that procedure: (1) the lack of sufficient notice of the motion, (2) the fact that the motion was heard and granted by a judge other than the one assigned to the case, and (3) the fact that the motion was argued and granted on a basis different from the one upon which it was brought.

On August 9, 1983, one of defendants filed a motion to dismiss and a petition for change of venue. The motion to dismiss cited subsection (a)(3) of section 2 — 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 619(a)(3)) and alleged that the present action was virtually the same as the one previously filed. Counsel for the parties appeared before Judge John S. Teschner of the Du Page County Circuit Court on August 9 with regard to both the present action (No. 83 CH 736) and the related one referred to in the motion to dismiss (Nos. 82 CH 1032 and 82 CH 1135). While Nos. 82 CH 1032 and 82 CH 1135 had been assigned to Judge Teschner, the present case had been assigned to Judge S. Bruce Scidmore of the same court. At the outset of the hearing, counsel for plaintiffs stated the following:

“If I could, your Honor, for the record, perhaps set out an agenda of the different things that are — why we’re here before you this afternoon.
* * *
In addition, we filed a couple weeks ago a complaint for equitable foreclosure, which was assigned to Judge Scidmore.
We received yesterday from Mr. Rosch a motion to transfer the case from Judge Scidmore.
And, in addition, we received yesterday a motion to dismiss our equitable foreclosure case.
As I indicated earlier, your Honor, the motion to dismiss the equitable foreclosure case was received yesterday without proper notice.
Because we are interested in proceeding expeditiously with this case; indeed, critical to the Hargrove contract action [No. 82 CH 1135] before you now is an early trial date because of the foreclosure of the Concordia loan, which we’ve alleged the contract between the parties required the assumption of those liabilities, so we are willing to go forward with oral argument today, if you would wish, your Honor, on the motion to dismiss the equitable foreclosure as well.”

Argument before Judge Teschner then took place in which counsel for defendants sought dismissal on the grounds both that a similar action was pending and that the complaint failed to state a cause of action. Further, counsel for defendants asked the court to consider, with regards to the wording of fees, the ulterior motives of plaintiffs for filing the suit. The court granted the motion to dismiss and, when asked to indicate the grounds for its decision, stated the following:

“1 think it’s clear that you do not state a cause of action.
I think, further, that there is a reasonable inference that the action was intended to try and bring some clout.
The purchasers are entitled to this summary judgment.
There is not a basis sufficient to establish any equitable lien for any amounts due Mr. Hargrove.”

In its written dismissal order of August 9, the trial court noted that plaintiffs’ attorney agreed to the hearing instanter despite the short notice. It ordered that the cause was thereby reassigned to Judge Teschner for the hearing instanter and that it was dismissed with prejudice.

On September 6, 1983, after notice of this appeal had been filed, counsel for the parties appeared before Judge Teschner for a hearing on plaintiffs’ motion to stay the order of dismissal and to set a bond. During the course of that hearing, the court gave clear indication that its dismissal was based both on the pendency of the related action and on the failure to state a cause of action. The following dialogue then took place:

“MR. KING [counsel for plaintiffs]: Your Honor, with all due respect, the record is quite clear that not only was none of that brought before the Court in connection with the Court’s dismissal of the equitable foreclosure action, but with all due respect, the Court is unaware of the merits of this action except by way of the discussions that have been had before the Court.
Discovery has not been completed.
Mr. Rosch’s deposition has not been completed.
MR. ROSCH: Mr. King, I believe it’s my—
MR. KING: Production of documents has not been completed. And there is absolutely no factual basis whatever for the Court to dismiss an action on the merits.
THE COURT: Your complaint could not have stated any claim for equitable relief. That’s why I denied — or I granted the motion to dismiss, plus did so with prejudice.”

Generally, a party desiring to preserve a question for review must make appropriate objection in the court below and the failure to object to preserve a question for review constitutes a waiver. (Vee See Construction Co. v. Luckett (1981), 102 Ill. App. 3d 444, 430 N.E.2d 91.) More particularly, where it is contended that the procedure of the trial court is in error, the failure to object to such procedure in the trial court precludes its review. (Redmond v. Central Community Hospital (1978), 65 Ill. App. 3d 669, 382 N.E.2d 95.) Also, failure to object at any time before the trial court to the form or substance of a motion to dismiss bars an appellant from raising that issue for the first time on appeal as grounds for reversal. (Thornton v. Williams (1980), 89 Ill. App. 3d 544, 412 N.E.2d 157.) Here, plaintiffs failed to raise sufficient objection before the trial court to any of the three aspects of the dismissal procedure which they now challenge.

With regard to the lack of notice, plaintiffs’ counsel observed that there had been improper notice, but indicated a willingness to go ahead with the hearing that day. The trial court’s order contained the specific finding that plaintiffs’ attorney agreed to a hearing instanter despite the 24-hour notice.

With regard to the fact that the motion was addressed to and was granted by Judge Teschner even though this case had been assigned to Judge Scidmore, again plaintiffs’ attorney noted the assignment of this case and then expressed a willingness to go forward with the hearing if Judge Teschner agreed. Judge Teschner in his order specifically reassigned the case to himself, as chief judge of the division, for the hearing instanter. Questions concerning the propriety of a particular judge’s hearing a case cannot be raised for the first time in the appellate court. O’Brien v. Eustice (1939), 298 Ill. App. 510, 19 N.E.2d 137.

With regard to the basis of the motion to dismiss differing from the basis of the order of dismissal, counsel for plaintiffs raised no objection despite ample opportunity to do so. Plaintiffs’ counsel remained silent both when opposing counsel raised the argument at the hearing that the complaint failed to state a cause of action and when the trial court indicated that its dismissal order was based, at least in part, upon that same argument. Attorney King’s remarks at the September 6, 1983, hearing, even if they could be construed as an objection to the basis of the court’s dismissal order, were made after the complaint was dismissed and the notice of appeal had been filed. That was too late to be considered a timely objection. See Coleman v. Hinsdale Emergency Medical Corp. (1982), 108 Ill. App. 3d 525, 531, 439 N.E.2d 20, 25.

Premier Electrical Construction Co. v. La Salle National Bank (1983), 115 Ill. App. 3d 638, 450 N.E.2d 1360, upon which plaintiffs rely, is distinguishable in that the plaintiff in that case initially raised its objections to the trial court’s procedure before the trail court itself, rather than raising the objections for the first time on appeal. We hold that plaintiffs have not properly preserved this issue for review.

Plaintiffs’ second contention is that their complaint does state a cause of action to foreclose an equitable mortgage and should not have been dismissed for failure to do so. It is plaintiffs’ theory that they retain a lien in equity upon the Woodridge properties because defendants, by defaulting on the Concordia loan, failed to satisfy the considerations stated in the March 1 agreement by which plaintiffs agreed to convey their interest in the Woodridge properties.

While the complaint seeks to foreclose an “equitable mortgage,” plaintiffs at various times speak in terms of an “equitable lien.” With regard to the former, it has been stated:

“An equitable mortgage arises in a situation where money is loaned or credit given in reliance upon the security of property of the debtor, but pledged by him in such manner as not -to be enforceable as a mortgage at law. ‘The earliest form of equitable mortgage is found in cases of conveyances, absolute in form, made in fact to secure a loan but unenforceable as a mortgage at law because of the absence of a defeasance clause ***. Equity intervenes in these cases for exactly the same reason which caused equitable relief in legal mortgage cases, viz., to relieve from the forfeiture otherwise resulting if the grantee should refuse to reconvey on tender to him of the debt.’ (Walsh, Mortgages, pp. 34-35.)” Wilkinson v. Johnson (1963), 29 Ill. 2d 392, 398-99; see also Hibernian Banking Association v. Davis (1920), 295 Ill. 537, 543; Trustees of Zion Methodist Church v. Smith (1948), 335 Ill. App. 233, 236, 81 N.E.2d 649, 650.

By contrast, an equitable lien has been described as follows:

“An equitable lien is the right to have property subjected, in a court of equity, to the payment of a claim. It is neither a debt nor a right of property but a remedy for a debt. It is simply a right of a special nature over the property which constitutes a charge or encumbrance thereon, so that the very property itself may be proceeded against in an equitable action and either sold or sequestered under a judicial decree, and its proceeds in one case, or its rents and profits in the other, applied upon the demand of the creditor in whose favor the lien exists. [Citations.] Equity recognizes, in addition to the personal obligation, in some cases, a peculiar right over the thing concerning which a contract deals, which it calls a ‘lien,’ and which, though not property, is analogous to property, by means of which the plaintiff is enabled to follow the identical thing and to enforce the defendant’s obligation by a remedy which operates directly upon that thing.” (Watson v. Hobson (1948), 401 Ill. 191, 201.)

Illinois has recognized equitable liens which arise wholly from a consideration of right and justice even in the absence of an express agreement, such as where a tenant has made improvements in order to restore a building to use, where one of the joint tenants has made permanent improvements upon property which has added to its value, or where a vendor’s lien exists. Oppenheimer v. Szulerecki (1921), 297 Ill. 81; Slusarz v. Slusarz (1958), 18 Ill. App. 2d 25, 151 N.E.2d 411.

Thus, while the terms are closely related, “equitable lien” appears to be a more inclusive term than “equitable mortgage,” which in all instances requires an affirmative pledge of property as security for a debt. Because of our mandate to construe pleadings liberally with a view to doing substantial justice (Ill. Rev. Stat. 1983, ch. 110, par. 2— 603(c)), we do not confine our construction of the complaint as being necessarily limited to the equitable mortgage doctrine.

The essential elements of all equitable liens are (1) a debt, duty or obligation owing by one person to another and (2) a res to which that obligation fastens. (Jacobsen v. Conlon (1973), 14 Ill. App. 3d 306, 302 N.E.2d 471; Marshall Savings & Loan Association v. Chicago National Bank (1965), 56 Ill. App. 2d 372, 206 N.E.2d 117.) The obligation that the complaint alleges is owing by defendants to plaintiffs is the unfulfilled promise of defendants to pay off the Concordia loan. The res to which the complaint seeks to fasten that obligation is the Woodridge properties.

However, the record shows that the property interest of the contracting defendants in the Woodridge properties was that of beneficiaries in land trusts at the Beverly Bank. The Beverly Bank, as trustee of the land trusts, holds legal and equitable title to the Woodridge properties. (See People v. Chicago Title & Trust Co. (1979), 75 Ill. 2d 479.) While the Beverly Bank is a named defendant, it was not a party to the contract or conduct that is alleged to have given rise to the equitable lien.

Despite plaintiffs’ representations to the contrary on appeal, the complaint clearly seeks to enforce a lien against the real property itself, not the beneficial interests. It is alleged that defendants’ conduct entitles plaintiffs to an equitable mortgage on the Woodridge properties and that the estate conveyed by the mortgage was an “equitable right to fee simple interest in the Woodridge properties.” The “mortgaged premises” are legally described in terms of the real estate involved rather than the beneficial interest in the land trusts. The “owners of the mortgaged premises” are recited to include all the named defendants, including the Beverly Bank as trustee. Most significantly, the complaint prays that the real estate itself be sold to satisfy the sum due on the Concordia loan.

At best under the facts alleged in the complaint, equity might attach the asserted obligation to the contracting parties’ beneficial interests in the land trusts. In a land trust, the legal and equitable title lies with the trustee and the beneficiary retains only a personal property interest. (In re Estate of Alpert (1983), 95 Ill. 2d 377; People v. Chicago Title & Trust Co. (1979), 75 Ill. 2d 479.) A lien on a beneficiary’s interest in a land trust is not a lien on the real property itself. (See In re Estate of Alpert (1983), 95 Ill. 2d 377; Shefner v. University National Bank (1976), 40 Ill. App. 3d 978, 353 N.E.2d 126; Marshall Savings & Loan Association v. Chicago National Bank (1965), 56 Ill. App. 2d 372, 206 N.E.2d 117; In re Romano (N.D. Ill.1977), 426 F. Supp. 1123, 1128, modified without published opinion sub nom. Citizens Bank & Trust Co. v. Romano (7th Cir. 1980), 618 F.2d 109.) Because the complaint seeks to enforce a lien on the real property itself, it does not state a cause of action and was properly dismissed.

By this holding, we do not suggest answers for certain questions raised by the parties: whether it is possible to impose an equitable lien upon a beneficial interest in a land trust and, if so, under what conditions. Rather, our holding is predicated solely on the facts that the obligation alleged by the plaintiffs was owed by the contracting defendants and that those defendants did not possess the property interest upon which plaintiffs sought to impose their lien.

Plaintiffs’ third contention is that their complaint should not have been dismissed on the basis of the pendency of another action between the same parties for the same cause. (See Ill. Rev. Stat. 1981, ch. 110, par. 2 — 619(a)(3).) Since we affirm the dismissal on the basis of a failure to state a cause of action, we need not consider this contention.

The order of the circuit court of Du Page County is affirmed.

Affirmed.

SEIDENFELD, P.J., and HOPF, J., concur.


author: JUSTICE VAN DEUSEN

text:
    DAVID J. KURTI, M.D., Plaintiff-Appellant, v. FOX VALLEY RADIOLOGISTS, LTD., Defendant-Appellee.
    Second District
    No. 83—479
    Opinion filed June 6, 1984.

      Kathleen C. West and Frederick E. Roth, both of Hennessy, Dommermuth, Brestal, Cobine, Roth & West, of Naperville, for appellant.
    John M. Myers, of Friedman & Koven, of Chicago, for appellee.
   JUSTICE VAN DEUSEN

delivered the opinion of the court:

Plaintiff, David J. Kurti, M.D., appeals from an order of the circuit court of Du Page County entering judgment against him and in favor of defendant, Fox Valley Radiologists, Ltd., following trial on plaintiff’s complaint for wages allegedly due under a contract of employment. Plaintiff asserts that the trial court erroneously upheld the affirmative defense of fraud.

Defendant was a corporation with offices in Aurora, Illinois. Dr. Kenneth E. Hurst was defendant’s president and sole shareholder. At the time of the firm’s incorporation in 1971, approximately 85% of its business consisted of providing radiology services at Edward Hospital in Naperville. As of October 1981, the sole business of the defendant involved work at this hospital, where Dr. Hurst was head of the radiology department.

Plaintiff began working for defendant in July 1975 as a diagnostic radiologist. Plaintiff was employed pursuant to a written contract providing that he would be paid 45% of the corporation’s yearly net income. Plaintiff’s share was subsequently modified to 48%, and by 1981 plaintiff received an approximate monthly salary of $12,000. The contract further prohibited plaintiff from engaging in outside professional employment without defendant’s consent.

On October 26, 1981, the board of directors of Edward Hospital voted to terminate its agreement with defendant for provision of radiology services following the required 30-day notice. The effect of this decision virtually put defendant out of business, reducing the corporation in essence to a collection center for accounts receivable. Dr. Hurst was informed of the decision of the hospital board on October 27, 1981, and on October 29 he gave plaintiff notice that the latter’s employment was terminated as of December 31, 1981.

At the time Dr. Hurst notified plaintiff of his impending termination, plaintiff said nothing regarding his future plans. During the following month, plaintiff held discussions with officials both at Edward Hospital and at Aurora’s Copley Hospital regarding the possibility of future employment. At Copley Hospital, Dr. Singh was receptive to plaintiff’s interests and extended to him a verbal offer of employment to commence in January 1982. Dr. Singh asked plaintiff about working a few weekends in December to become familiar with the hospital. Plaintiff also called Mr. Ladley, a member of the board of directors at Edward Hospital, on two occasions during November. Plaintiff inquired regarding his chances of becoming the new chairman of radiology at that hospital. Ladley’s response was negative, and plaintiff then called Dr. Doris, one of the leading contenders for the Edward chairmanship, to inquire regarding selection for a position as a staff radiologist. Dr. Doris did not provide plaintiff with either a positive or negative reply.

On November 20, 1981, plaintiff approached Dr. Hurst and asked him to sign a release which read: “Under the terms of the employment agreement between Fox Valley Radiologists and David J. Kurti, M.D., this is official permission and consent to engage in professional activities outside the employ of the corporation while said agreement remains in force.” Plaintiff explained that he had been talking to Copley Hospital personnel, “and they had said they wanted me to work some weekends in December and that I would like official permission, and I handed him the paper for him [Dr. Hurst] to sign.” Although plaintiff did not expressly request to have the release signed immediately, Dr. Hurst believed that plaintiff desired his prompt signature because approximately a week before, plaintiff had disclosed that he was having conversations with Dr. Singh and that Singh wanted plaintiff to work at Copley on weekends. Hurst signed the release without inquiring as to plaintiff’s arrangements with Copley. Plaintiff did not mention any discussion with personnel at Edward Hospital. Hurst stated that he would not have signed a release permitting plaintiff to work at Edward because Hurst believed that Edward might not be able to replace his corporation as quickly as planned, and without another radiology service the hospital might be compelled to retain Fox Valley’s services through December. Plaintiff gave nothing of value for the release. During this conversation, Hurst did not suggest that he needed plaintiff’s services during December, nor did he say that plaintiff would have to work in December in order to be paid.

On November 27, 1981, while plaintiff was packing in preparation for his departure from Edward Hospital, Dr. Doris called and asked plaintiff to remain as an employee. Plaintiff thereupon telephoned Dr. Hurst and stated that he was going to remain at Edward Hospital during December and work for Dr. Doris. Hurst replied that this would negate the release he had signed the previous week and that plaintiff would not be paid by defendant during December. Plaintiff protested that this was not fair and Hurst replied, “That’s too bad.”

Dr. Hurst did not request plaintiff to perform any work during December 1981. Plaintiff worked at Edward Hospital during that month and was paid $7,200. He thereafter brought suit against defendant for $12,000, the alleged amount of his December salary. Defendant answered, raising four affirmative defenses: fraud in inducing Dr. Hurst to sign the release, lack of consideration, pre-existing break of contract by plaintiff, and the doctrine of commercial frustration. In a letter of opinion, the trial court found that plaintiff’s conduct was tantamount to fraud. Judgment was accordingly entered for defendant and this appeal followed.

The trial court’s letter of opinion set out the following rationale for its holding that the release signed by Dr. Hurst was invalid on account of fraud:

“Although the evidence is not clear that Plaintiff ‘knew’ on November 20, 1981, of employment with Edward Hospital, it can unquestionably be inferred, at some later time, his acceptance of employment with Edward Hospital would require disclosure of that fact. Plaintiff was then under an affirmative duty to disclose his new professional relationship with Edward Hospital during the balance of the employment contract life. Silence on the part of the Plaintiff at this juncture, when he was [sic] a duty to speak, is tantamount to fraud, voiding the previous consent of November 20,1981.”

Plaintiff contends on appeal that he had no duty, akin to a fiduciary duty, to disclose to defendant prior to November 20, 1981, the mere fact that he had had employment negotiations with Edward Hospital. Plaintiff, therefore, concludes that his conduct in requesting the release cannot be tantamount to fraud. Alternatively, he claims that defendant is unable to show any damages arising from the alleged misrepresentation, and consequently an essential element of a fraud claim is absent.

To establish a cause of action for fraudulent misrepresentation, there must have been a false statement of material fact which was known or believed to be false by the maker, an intent to induce another party to act, a justified reliance by the other party upon the truth of the statement, and damage to the other party resulting from such reliance. (Soules v. General Motors Corp. (1980), 79 Ill. 2d 282, 286.) In order for concealment of facts to constitute a fraud, it must be shown to have been done with the intention to deceive under circumstances creating an opportunity and duty to speak. (Semmens v. Semmens (1979), 77 Ill. App. 3d 936, 940; Dendrinos v. Dendrinos (1978), 58 Ill. App. 3d 639, 642.) A statement, although technically true, may nevertheless be fraudulent where it omits qualifying material, for a half-truth is sometimes more misleading than an outright lie. (Perlman v. Time, Inc. (1978), 64 Ill. App. 3d 190, 195.) Moreover, it is essential to a finding of fraud that the plaintiff has been induced by the fraud to act to his detriment. (Macaluso v. Jenkins (1981), 95 Ill. App. 3d 461, 469.) In addition to actual fraud, a misrepresentation may give rise to constructive fraud where there has been a breach of duty arising out of a fiduciary or confidential relationship. (Paskas v. Illini Federal Savings & Loan Association (1982), 109 Ill. App. 3d 24, 30.) Even where a fiduciary relationship does not exist as a matter of law, it may nonetheless arise where trust and confidence, by reason of friendship, agency and experience, are reposed by one person in another so the latter gains influence and superiority over the former. (Gary-Wheaton Bank v. Burt (1982), 104 Ill. App. 3d 767, 774.) However, the existence of a friendship does not of itself establish the existence of such a relationship, nor does one person’s assistance of another in business affairs. See Gary-Wheaton Bank v. Burt (1982), 104 Ill. App. 3d 767; see, e.g., Carey Electric Contracting, Inc. v. First National Bank of Elgin (1979), 74 Ill. App. 3d 233.

In the instant case, plaintiff denies that he owed defendant any fiduciary duty to disclose the extent of his inquiries into obtaining employment at area hospitals. He claims that his relationship with Dr. Hurst involved no special trust or influence which would have given rise to a confidential relationship. He particularly asserts the inapplicability of a fiduciary relationship when the manifest purpose of his release was to allow him to seek other employment at an area hospital, obviously involving at least a degree of competition with Dr. Hurst in the provision of professional services. Defendant, in turn, points to the long-standing personal and professional relationship between the parties and their arrangement to share business profits as establishing the type of special confidence which required the fullest degree of disclosure on plaintiff’s part in seeking a release.

The existence of a confidential relationship is not precluded by the fact that plaintiff had been notified of his impending termination, or that he was seeking a release for the purpose of securing new employment which would almost inevitably be in competition with Dr. Hurst. Indeed, the need to prevent a fiduciary from taking improper advantage of the dislocation attendant upon the ending of a confidential relationship requires that fiduciary principles be observed so long as the relationship continues. However, the facts do not support a finding of a fiduciary relationship between the parties in this case. Despite the length of their association and plaintiff’s participation in the defendant corporation’s profits, there is no indication that plaintiff participated in the corporation’s management or that he enjoyed access to confidential information. The association of physicians in professional medical practice necessarily implies that each participant reposes his trust in the other, but there is no suggestion in the present record that this trust extended into the area of the corporation’s management or the marketing of its services. In sum, there is no basis upon which plaintiff can be charged with a duty to disclose, at the time he requested his contract release, his inquiries and negotiations regarding alternative employment.

While we agree with defendant that the potential prejudice to its short-term retention at Edward Hospital was sufficient to satisfy the damage requirement in a fraud claim, the plaintiff did not make a false representation of a material fact sufficient to warrant a finding of fraud. At the time he requested Dr. Hurst to sign the release, plaintiff stated that he wished to work weekends at Copley Hospital but did not disclose that he had made inquiries regarding work at Edward Hospital. However, very little had yet developed from these inquiries; plaintiff had neither been promised employment at Edward, nor been given any indication as to when such employment might commence. Plaintiff had been told that an employment decision would be made by the new chairman of radiology, but the chairman had not been chosen at the time of plaintiff’s inquiry. Further, plaintiff had spoken only to one of the two leading candidates for the chairmanship. Thus, plaintiff’s discussions with Edward Hospital were only at a preliminary stage, while Copley Hospital had made both a definite offer of employment and a request for plaintiff’s part-time services in December. The uncertainty of plaintiff’s position at Edward Hospital was confirmed by the fact that he was packing his possessions to leave that hospital when he was offered employment there.

The law in Illinois is well settled that:

“[A] statement which is technically true as far as it goes may nevertheless be fraudulent, where it is misleading because it does not state matters which materially qualify the statement as made.
* * *
It is also well established that where one has made a statement which at that time is true but subsequently acquires new information which makes it untrue or misleading, he must disclose such information to anyone whom he knows to be acting on the basis of the original statement — or be guilty of fraud or deceit.” (St. Joseph Hospital v. Corbetta Construction Co. (1974), 21 Ill. App. 3d 925, 952-53.)

Given the comparative indefiniteness of plaintiffs prospects of employment at Edward Hospital, his undisclosed discussions with personnel there did not so materially qualify plaintiff’s claim of employment at Copley as to reduce it to the level of a half-truth. Moreover, it is undisputed that plaintiff informed Dr. Hurst of Edward’s offer on the same day it was received. Accordingly, we conclude that the trial court erroneously found plaintiff guilty of fraudulent conduct in obtaining the release.

Defendant correctly asserts, however, that a reviewing court may sustain a trial court’s judgment on any grounds supported by the record. (Illinois Bell Telephone Co. v. Dynaweld, Inc. (1979), 70 Ill. App. 3d 387, 394.) From this premise, defendant contends that there was sufficient evidence before the trial court on each of its other three affirmative defenses to sustain the trial court’s judgment.

Defendant’s first alternative assertion is that the release granted plaintiff was void because plaintiff gave no consideration for it. Defendant acknowledges that no consideration is necessary to support a waiver of a contract provision (Business Development Services, Inc. v. Field Container Corp. (1981), 96 Ill. App. 3d 834, 840), but it contends that no waiver may be found here. Specifically, defendant notes that a waiver has been defined as the intentional relinquishment of a known right, requiring both the knowledge that the right existed and the intent to relinquish it. (Braden v. Weinert (1981), 97 Ill. App. 3d 929, 937.) Because Dr. Hurst, when signing the release, was not accurately made aware of plaintiff’s eventual place of employment, defendant claims that he cannot be said to have made an intentional relinquishment of a known right. This argument is without merit since the question of whether a waiver was in fact made does not negate the principle of law that consideration is not necessary to support a waiver of a contract provision. Thus, the release was not void for lack of consideration.

Defendant next contends that plaintiff was properly denied judgment in this cause because, when properly construed, the release only permitted plaintiff to work at Copley Hospital and did not confer permission for plaintiff to work at Edward Hospital. Defendant claims that this construction of the release reflects the unmistakable intention of the parties as revealed in both the language of the written instrument and in the parties’ contemporaneous conversation. Defendant suggests that the contemporaneous oral statement by plaintiff concerning his reasons for wanting the release should be construed together with the written terms, either as constituting the agreement in its entirety or as representing a contemporaneous oral modification of a written agreement. Alternatively, defendant construes the written release as ambiguous and requests resort to extrinsic evidence to clarify the ambiguity.

The law recognizes that a contract may be partly written and partly oral. For purposes of the parol evidence rule, such a contract is considered an oral agreement. (Watson Lumber Co. v. Mouser (1975), 30 Ill. App. 3d 100, 103.) However, defendant’s claim that the release in question may be viewed as a partially oral agreement must be rejected because there is no apparent incompleteness in the terms of the writing, and the asserted oral “term” would add a limitation on the place of employment not contained in the release. We are also unpersuaded by the authority cited by defendant (Bank of Marion v. Robert “Chick” Fritz, Inc. (1973), 9 Ill. App. 3d 102, aff’d (1974), 57 Ill. 2d 120), in support of its claim that the written language of the release was made subject to a contemporaneous modification. First, the evidence showed that plaintiff’s oral request for the release actually preceded the execution of the written instrument. Moreover, while a written contract may subsequently be orally modified (see Park v. Dealers Transit, Inc. (7th Cir. 1979), 596 F.2d 203; Mayer Paving & Asphalt Co. v. Carl A. Morse, Inc. (1977), 48 Ill. App. 3d 73), giving effect to contemporaneous oral modifications of apparently complete written instruments would be potentially destructive of certainty in the interpretation of contracts and, according to some writers, would run afoul of the parol evidence rule. See J.D. Calamari & J.M. Perillo, Contracts sec. 3-2, at 100-01 (2d ed. 1977).

We also dismiss defendant’s alternative contention that interpretation of the agreement in accordance with the rules of contract construction results in a finding that the release is ambiguous. The release granted plaintiff consent “to engage in professional activities outside the corporation.” A written contract is not rendered ambiguous merely because the parties do not agree upon the meaning of its terms; a contract is ambiguous only when the language employed is reasonably susceptible of more than one meaning. (Wilson v. Illinois Benedictine College (1983), 112 Ill. App. 3d 932, 937.) “When the language of a contract is ambiguous or unclear so that the intentions of the parties cannot be discerned from the contract itself, extrinsic evidence may be considered to make a proper interpretation of the contract.” (Ninow v. Loughnane (1981), 103 Ill. App. 3d 833, 839-40.) Further, previous agreements, negotiations and circumstances may be considered in determining the meaning of specific words and clauses. (Martindell v. Lake Shore National Bank (1958), 15 Ill.2d 272, 283.) While we agree with defendant that in the context of the release alone, the phrase “professional activity” is ambiguous, reference to the contract of employment and to the work of the defendant during the course of his employment makes unmistakably clear that the “professional activities” of plaintiff were those of diagnostic radiologist, physician, and surgeon. Moreover, there is no limitation in the release with reference to the geographical location where the plaintiff may engage in his professional activities, or for whom he may work. The release clearly and unequivocally permits plaintiff to engage in his professional activities without restriction as to the identity of any future employer or place of employment; resort to extrinsic evidence should not alter these unambiguous terms of the parties’ written agreement.

Finally, defendant contends that plaintiff must be denied relief on account of the doctrine of commercial frustration; that is, the state of things upon whose existence the parties’ contract was premised has ceased to exist because of an unforeseeable frustrating event which has virtually destroyed the value of defendant’s counterperformance. (See Smith v. Roberts (1977), 54 Ill. App. 3d 910.) Defendant asserts that its continued ability to employ plaintiff pursuant to the contract of employment was rendered impossible by the virtual collapse of its business after November 1981. This claim overlooks the fact that defendant’s corporate existence did continue after that time, and defendant apparently had income during that period attributable to the collection of accounts receivable. We therefore reject defendant’s claim that because of the termination of its service arrangement with Edward Hospital, it was unable to retain plaintiff as a salaried employee during December.

The judgment of the trial court in favor of the defendant and against the plaintiff is reversed and the matter is remanded for a new trial.

Reversed and remanded for new trial.

NASH and UNVERZAGT, JJ., concur.


text:
    LONNIE YOUNT, Plaintiff-Appellee, v. HESSTON CORPORATION, Defendant-Appellant.
    Second District
    No. 83—803
    Opinion filed June 6, 1984.

      Henry J. Close, of Connolly, Hickey & Oliver, of Rockford, for appellant.
    George Fischer, of Oregon, for appellee.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

The defendant, Hesston Corporation (Hesston), brings this interlocutory appeal, pursuant to Supreme Court Rule 308(a)(87 Ill. 2d R. 308(a)), from an order of the trial court which denied its motion to dismiss the complaint of the plaintiff, Lonnie Yount. On appeal, the defendant contends (1) that the trial court incorrectly concluded that the Illinois Human Rights Act (IHRA) (Ill. Rev. Stat. 1981, ch. 68, par. 1 — 101 et seq.) abrogated the rights which article I, section 19, of the Illinois Constitution of 1970 (Ill. Const. 1970, art. I, sec. 19) granted to the plaintiff and, hence, amounted to an unconstitutional exercise of legislative power by the Illinois General Assembly; and (2) that the court below improperly denied its motion to dismiss the plaintiffs complaint.

On May 27, 1983, the plaintiff filed a complaint against the defendant that contained the following factual allegations, which must be accepted as true for purposes of adjudicating the propriety of the trial court’s refusal to grant the defendant’s motion to dismiss (see Greenholdt v. Illinois Bell Telephone Co. (1982), 107 Ill. App. 3d 748, 753). According to the allegations of the complaint, the plaintiff began working for Hesston in 1974 and received periodic promotions and pay raises from 1974 thru 1981. In 1976 the plaintiff became mentally ill and, with the knowledge and cooperation of Hesston, visited a mental health facility for treatment. The plaintiff’s mental handicap did not prevent him from performing his work duties in accordance with the standards that Hesston demanded. On February 19, 1982, Hesston terminated the plaintiff’s employment. The plaintiff alleged that by discharging him the defendant violated his rights under both section 19 of article I of the Illinois Constitution of 1970 (Ill. Const. 1970, art. I, sec. 19) and section 2 — 100 of the Mental Health and Developmental Disabilities Code (Ill. Rev. Stat. 1981, ch. 911/2, par. 2— 100).

The defendant responded to the complaint with a motion to dismiss under section 2 — 619(a) of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 619(1)), which alleged that the trial court did not have jurisdiction of the subject matter of the litigation. In particular, Hesston’s motion stated that the IHRA governs actions for employment discrimination based on a mental handicap and implements the provisions of article I, section 19, of the Illinois Constitution. The motion to dismiss alleged, in addition, that the IHRA specifically precludes access to the courts of Illinois for redress of a purported civil rights violation except for administrative review of the decision of the Illinois Human Rights Commission. Hesston concluded that the court was without jurisdiction to hear the complaint, because the plaintiff did not bring his action pursuant to the provisions of the IHRA.

Shortly thereafter, the plaintiff filed a response to the motion to dismiss in which he alleged that the IHRA was not the exclusive avenue for seeking judicial redress of a discriminatory discharge from employment based on a mental handicap.

In an appendix to his brief, the plaintiff includes certified transcripts of the reports of proceedings of the two hearings the trial court held relative to the motion to dismiss. We note that although the reports of proceedings were not made a part of the record on appeal, the defendant does not challenge the authenticity of those transcripts in its reply brief. After the defendant argued at the initial hearing that the IHRA provided the exclusive remedy for the plaintiff’s cause of action, the trial court concluded, without the plaintiff specifically raising the argument, that to the extent the IHRA was viewed as the exclusive judicial remedy, the IHRA was an unconstitutional exercise of legislative power by the Illinois General Assembly, because it abrogated the rights which article I, section 19, of the Illinois Constitution of 1970 accorded mentally-ill persons within Illinois. Accordingly, the court below denied the defendant’s motion to dismiss.

The court stated that its order involved a constitutional question of law concerning the IHRA, regarding which there was a substantial ground for a difference of opinion, and that an immediate appeal from the order would materially advance the ultimate determination of the lawsuit. (See 87 Ill. 2d R. 308(a).) Thereafter, this court granted the defendant permission to maintain the present interlocutory appeal pursuant to Supreme Court Rule 308(a).

Hesston argues in its initial brief that the trial court incorrectly determined that the Illinois Human Rights Act (Ill. Rev. Stat. 1981, ch. 68, par. 1 — 101 et seq.) amounted to an unconstitutional abrogation by the State legislature of the plaintiffs rights under article I, section 19, of the Illinois Constitution of 1970 (Ill. Const. 1970, art. I. sec 19). Continuing, Hesston asserts that if the IHRA was not an unconstitutional exercise of legislative power, then it naturally follows, under section 8 — 111(D) of the IHRA (Ill. Rev. Stat. 1981, ch. 68, par. 8— 111(D)), that the plaintiff is precluded from bringing a direct cause of action under section 19 of article I of the 1970 Illinois Constitution. In addition, the defendant maintains that the provisions of section 2— 100 of the Mental Health and Developmental Disabilities Code (Ill. Rev. Stat. 1981, ch. 911/2, par. 2 — 100) are inapplicable to the present case. Accordingly, the defendant concludes that the trial court improperly denied its motion to dismiss and requests that this court remand the cause for entry of an order dismissing the plaintiffs complaint.

In his brief, the plaintiff concedes that the IHRA is a constitutional exercise of legislative power; he states that he will not and cannot defend the propriety of the trial court’s order finding the IHRA to be unconstitutional. In addition, the plaintiff acknowledges, in harmony with the defendant’s position, that section 2 — 100 of the Mental Health and Developmental Disabilities Code is not germane to his lawsuit. The plaintiff states, however, that the real issue before this court is whether, notwithstanding the provisions of the IHRA, he can maintain a private cause of action directly under section 19 of article I of the current Illinois Constitution. He concludes that he can and asks this court to adopt his position.

In its reply Hesston counters that, under the jurisprudence emanating from Thakkar v. Wilson Enterprises, Inc. (1983), 120 Ill. App. 3d 878, the plaintiff’s direct action for relief under article I, section 19, of our constitution was either preempted by the procedures set forth in the IHRA, or was untenable because the plaintiff failed to exhaust his administrative remedies under the IHRA before filing suit in the circuit court. Also, the defendant asserts that even if the plaintiff could maintain a private cause of action under the provisions of section 19 of article I of the Illinois Constitution, he cannot do so in this case, because his claim of unlawful discharge does not fall within the ambit of the “hiring and promotion practices” language of the constitutional enactment.

With respect to the question whether the IHRA was an unconstitutional legislative enactment in the sense that it preempted or limited the plaintiff’s access to court under section 19 of article I of this State’s constitution, we agree with the parties that the trial court’s order finding the IHRA to be unconstitutional was erroneous. The plaintiff notes correctly that a statute enjoys the presumption of validity, and all reasonable doubts must be resolved in favor of the legislation. (Freeman United Coal Mining Co. v. Fair Employment Practices Com. (1983), 113 Ill. App. 3d 19, 27.) Moreover, as the court in Thakkar v. Wilson Enterprises, Inc. (1983), 120 Ill. App. 3d 878, 883 stated, “[t]he limitations, administrative procedures and remedies of the Human Rights Act *** are reasonable and were enacted with proper authority.”

Regarding the applicability of section 2 — 100 of the Mental Health and Developmental Disabilities Code (Ill. Rev. Stat. 1981, ch. 911/2, par. 2 — 100) to this case, the parties are in agreement, and we concur with their judgment, that that section has no relevance to the current lawsuit.

The real, disputed issue in this appeal is whether the plaintiff is precluded from bringing a private cause of action, under I, section 19, of the constitution, for employment discrimination based on a mental handicap, in circumstances where there is no evidence in the record that the plaintiff exhausted his administrative remedies under the IHRA prior to commencing the current action.

Section 17 of article I of the Illinois Constitution states as follows:

“All persons shall have the right to be free from discrimination on the basis of race, color, creed, national ancestry and sex in the hiring and promotion practices of any employer or in the sale or rental of property.
These rights are enforceable without action by the General Assembly, but the General Asembly by law may establish reasonable exemptions relating to these rights and provide additional remedies for their violation.” Ill. Const. 1970, art. I, sec 17.

Section 19 of article I of our constitution provides the following:

“All persons with a physical or mental handicap shall be free from discrimination in the sale or rental of property and shall be free from discrimination unrelated to ability in the hiring and promotion practices of any employer.” Ill. Const. 1970, art. I, sec 19.

In 1979, the legislature passed the Illinois Human Rights Act, which repealed and superseded the Fair Employment Practices Act (FEPA) (Ill. Rev. Stat. 1977, ch. 48, par. 851 et seq.); the IHRA incorporated substantially all the provisions found in the FEPA. (Sauers v. City of Woodstock (1983), 113 Ill. App. 3d 892, 897.) With respect to all individuals within this State, the IHRA sought to provide, among other things, freedom from numerous forms of discrimination, including discrimination in employment based on a mental handicap. (Ill. Rev. Stat. 1981, ch.68, par. 1 — 102(A).) Also, the IHRA declared that it was the public policy of this State “[t]o secure and guarantee the rights established by Sections 17, 18 and 19 of Article I of the Illinois Constitution of 1970.” (Ill. Rev. Stat. 1981, ch.68, par. 1 — 102(c).) In addition, the IHRA provided for judicial review of the decision of the Illinois Human Rights Commission (Ill. Rev. Stat. 1981, ch. 68, par. 8 — 111(A)(1)); however, the IHRA stated that “[ejxcept as otherwise provided by law, no court of this state shall have jurisdiction over the subject of an alleged civil rights violation other than as set forth in this Act.” Ill. Rev. Stat. 1981, ch.68, par. 8 — 111(D).

In Thakkar v. Wilson Enterprises, Inc. (1983), 120 Ill. App. 3d 878, the court addressed the question whether the plaintiff could maintain an action for employment discrimination directly under article I, section 17, of the 1970 Constitution of Illinois without first exhausting the administrative remedies prescribed in the Illinois Human Rights Act. In reaching its decision that he could not, the court explained that the statutory scheme of the IHRA, which sought to protect and enforce the rights of section 17 of article I of the constitution, effectively barred the plaintiff from bringing a direct cause of action until he had exhausted his administrative remedies. The court rejected specifically the plaintiffs contentions that the IHRA provided an independent remedy for violations of the rights which the constitution guaranteed, and that his failure to comply with the provisions of the statute could not bar a direct cause of action under the constitution. 120 Ill. App. 3d 878, 880-83.

In dicta, the court in Thakkar determined that a review of the detailed legislative scheme of the IHRA suggested persuasively that the legislature intended the Act to be the preemptive vehicle for the resolution of employment discrimination cases in this State. 120 Ill. App. 3d 878, 881, 883.

A recent Federal case also is instructive in this regard. In Curtis v. Continental Illinois National Bank (N.D. Ill. 1983), 568 F. Supp. 740, 742-43, the court concluded that the plaintiff could not maintain a cause of action, arising out of alleged employment discrimination, directly under article I, section 17, of the Illinois Constitution. In rejecting the plaintiffs claim that he was entitled to bring a direct private right of action, the court concluded that where there exists a comprehensive legislative mechanism, such as the IHRA, which is designed expressly to implement the rights found in section 17 of article I, “it would be improper to permit a direct suit which bypasses the procedural plan established by the legislature, and instead looks directly to the constitution.” 568 F. Supp. 740, 742; Armstrong v. Freeman United Coal Mining Co. (1983), 112 Ill. App. 3d 1020, 1022-23.

Although the Thakkar and Curtis cases dealt with article I, section 17, of the constitution, their rationales and results are applicable equally to section 19 of article I of our constitution. Accordingly, under the holding of Curtis and the dicta expressed in Thakkar, the IHRA was the exclusive remedy for the plaintiff to have pursued in this case. Because the plaintiff was not entitled to maintain an independent, private cause of action under article I, section 19, of the constitution, the current lawsuit was not properly before the trial court.

The plaintiff argues that a private right of action is available to him under article I, section 19, by virtue of the enforcement language contained in section 12 of article I of the Illinois Constitution (Ill. Const. 1970, art. I, sec. 12), which provides that all individuals shall find a certain remedy in the law for each wrong suffered. Section 12 of article I sets forth a clear mandate to the courts that whenever the legislature has failed to provide a remedy, the judiciary must do so. (Skelly Oil Co. v. Universal Oil Products Co. (1949), 338 Ill. App.79, 84.) Here, the legislature has provided a legal remedy for such alleged discriminatory employment practices under the comprehensive procedures set forth in the IHRA. Thus, the plaintiff’s reliance on section 12 in this case is misplaced.

Even if we were disposed to accept the plaintiff’s argument that the IHRA did not bar an independent action in this case under section 19 of article I of our constitution, the plaintiff nonetheless would not be entitled to pursue such a claim under the allegations of his complaint. The plain language of section 19 limits a claim of employment discrimination based on a mental handicap to “the hiring and promotion practices of any employer.” The same language is included in section 17 of article I of the Illinois Constitution, which the appellate court has had occasion to construe recently on two occasions. In Greenholdt v. Illinois Bell Telephone Co. (1982), 107 Ill. App. 3d 748, 751-52, the court conclude that the commonly understood meaning of “hiring and promotion practices” does not include all employment practices. More relevant to the court’s consideration in the present case is the holding in Thakkar v. Wilson Enterprises, Inc. (19830, 120 Ill. App. 3d 878, 883-84, that the phrase in question does not encompass cases involving termination and discharge from employment. This holding in Thakkar provides another reason for the dismissal of the plaintiff’s complaint in the present case, because his action is predicated on the alleged unlawful termination of his employment.

For the reasons expressed above, the trial court incorrectly denied the defendant’s motion to dismiss. Because the trial court did not have jurisdiction over the subject matter of the present lawsuit, the plaintiff’s complaint should have been dismissed pursuant to the defendant’s motion.

We, therefore, reverse the judgment of the circuit court of Ogle County and remand the cause to the trial court with instructions to dismiss the cause of action.

Reversed and remanded with directions.

HOPF AND NASH, JJ., concur.


author: PRESIDING JUSTICE SEIDENFELD

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. THOMAS J. BENDA, Defendant-Appellee.
    Second District
    No. 2—83—0565
    Opinion filed June 13, 1984.

      J. Michael Fitzsimmons, State’s Attorney, of Wheaton (Barbara A. Preiner, Thomas L. Knight, and Michael J. Higgins, Assistant State’s Attorneys, of counsel), for the People.
    Stephen J. Culliton, of Civinelli, Bakalis & Culliton, of Bloomingdale, and Joseph M. Laraia & Associates, of Wheaton, for appellee.
   PRESIDING JUSTICE SEIDENFELD

delivered the opinion of the court:

The State appeals from a midtrial ruling in a bench trial excluding certain evidence, pursuant to Supreme Court Rule 604(a)(1) (87 Ill. 2d R. 604(a)(1)), contending that the ruling had the substantive effect of suppressing evidence. Following the ruling the State filed a notice of appeal. Finding that the question was purely evidentiary and that the order was not appealable, the trial judge ordered the State to continue with the trial and, when it refused, granted the defendant’s motion for a directed finding of not guilty. The State contends that the judgment was a nullity and seeks to remand the case for resumption of trial.

The defendant, a practicing attorney in Wheaton, Illinois, along with Richard A. Heidecke, Jr., an attorney and hearing officer with the Secretary of State’s office, were charged by indictment with the offenses of bribery, official misconduct, conspiracy to commit bribery and conspiracy to commit official misconduct. Ill. Rev. Stat. 1981, ch. 38, pars. 8 — 2, 33 — 1(d), (e); Ill. Rev. Stat., 1982 Supp., ch. 38, pars. 33 — 3(c), (d).

Defendant had represented Ronald Seick in an implied consent hearing in which a finding of probable cause was entered, resulting in the suspension of Seick’s driver's license. Seick contacted defendant after he received notice of his suspension; defendant informed Seick that defendant’s law associate’s cousin, Richard A. Heidecke, Jr., was a hearing officer with the Secretary of State’s office and that defendant had already spoken to Heidecke about Seick. On the recommendation of defendant, Seick called Heidecke.

At trial, Seick, the State’s second witness, testified that defendant had provided him with Heidecke’s phone number and that Seick then called Heidecke immediately. When the State asked Seick to recall his conversation with Heidecke, the defense objected on the basis that, in order to bring into evidence the statements and acts of a co-conspirator, the State must first establish a prima facie case of conspiracy by the independent acts of the defendant himself. Seick was allowed to leave the stand, and the defense then argued in support of its objection, after which the judge concluded that there was an insufficient foundation to establish a prima facie showing of a conspiracy between defendant and Heidecke. The court ruled that the conversations between Seick and Heidecke were inadmissible at that time.

The State then recalled Seick. However, objections to its attempts to question him were sustained, the court noting that there was no evidence that defendant “agreed with anybody to do anything.”

At that point, the State made an offer of proof as to the following: One day after the suspension of his driver’s license went into effect, Seick received a phone call from Heidecke who said he could get Seick a temporary license for a fee of $1,500; Heidecke arranged to have Seick’s hearing set for a date in which Heidecke would be the presiding hearing officer; Heidecke and Seick set up a meeting at which Heidecke explained to Seick that he would receive a temporary permit if he paid a fee of $1,500, a portion of which was to be paid at the present time; Seick went to the meeting wearing a transmitter; Seick tendered payment of $600 in marked bills to Heidecke and Heidecke accepted it; and Heidecke told Seick that defendant knew what was going on.

The State presented several more witnesses seeking to establish Heidecke’s acts, and the court sustained the defendant’s objections to the evidence.

Following a brief recess, the assistant State’s Attorney presented a certificate of impairment and a notice of appeal, claiming that the cumulative effect of the court’s ruling substantially impaired the State’s ability to prosecute the case. The notice of appeal stated that the State was appealing from “orders suppressing statements and reference to acts of co-conspirator Richard A. Heidecke.” The State refused to participate further in the proceedings, the court declared that the State had rested its case, and defendant moved for a directed finding. The court entered a directed finding of acquittal and discharged the defendant.

Defendant characterizes the trial court’s action as strictly an evidentiary matter based on relevancy, materiality or hearsay. He argues that such an adverse evidentiary ruling is not appealable by the State merely because it may have affected the State’s ability to prosecute.

The State’s position is that the court’s ruling had the effect of suppressing evidence, that its case was thereby substantially impaired, and that the court’s ruling must be subject to review, under the authority of People v. Flatt (1980), 82 Ill. 2d 250. It argues that if the court had ruled prior to trial on the State’s motion in limine, that ruling could be appealed. Further, the State submits that since the defendant had the opportunity to file a motion in limine prior to trial to obtain a ruling on the objectionable evidence, his failure to do so was an attempt to prevent the State from pursuing an appeal of the court’s ruling and should not be allowed. The State concludes that, consequently, the trial court should not have entertained the defendant’s midtrial motion.

The initial inquiry is whether the interlocutory appeal is properly taken, which depends, in turn, on whether the ruling of the trial court had the substantive effect of “suppressing evidence,” as that term is used in Supreme Court Rule 604 (87 Ill. 2d R. 604).

We have recently considered the difficulty of distinguishing between evidentiary rulings and suppression orders, and have concluded that a midtrial order suppressing evidence does not include orders which exclude evidence on the basis of “the recognized rules concerning the admission of evidence.” (People v. Johnson (1983), 113 Ill. App. 3d 367, 373-74.) We have recently adhered to Johnson. See People v. Rogers (1984), 123 Ill. App. 3d 780.

As in Johnson, the ruling of the trial court was based wholly on evidentiary grounds, specifically on the relevancy of the State’s offered proof seeking to establish a conspiracy between the defendant and the alleged codefendant. The trial court concluded that a prima facie case of conspiracy had not been established showing independent acts of the defendant. Whether the testimony was relevant and material when offered relates to the application of rules of evidence involving exceptions to the hearsay rule. Whether the ruling of the court was erroneous and whether, as the State contends, the statements were admissible as evidence related to the charges of bribery, cannot change the fact that the rulings were evidentiary and therefore not within the rule permitting the State to appeal during trial. The appeal must therefore be dismissed.

The State has also claimed that the trial judge had no authority to grant the defendant’s motion for a directed finding of acquittal following the filing of the notice of appeal. As a general rule the filing of a notice of appeal is said to deprive the trial court of jurisdiction to rule on substantive matters affected by the appeal. (See, e.g., City of Chicago v. Myers (1967), 37 Ill. 2d 470, 472; People v. McBride (1983), 114 Ill. App. 3d 75, 79.) We know of no direct authority in Illinois, however, which decides whether that rule applies where there is a purported appeal from a nonappealable order. Several Federal appellate court opinions have concluded that an appeal from a nonappealable order does not deprive the trial court of jurisdiction. (See United States v. Garner (9th Cir. 1981), 663 F.2d 834, 837, cert. denied (1982), 456 U.S. 905, 72 L. Ed. 2d 161, 102 S. Ct. 1750; United States v. Cannon (7th Cir. 1983), 715 F.2d 1228, 1231, cert. denied (1984), 464 U.S. 1045, 79 L. Ed. 2d 178, 104 S. Ct. 716; United States v. Bastanipour (7th Cir. 1982), 697 F.2d 170, 173, cert. denied (1983), 460 U.S. 1091, 76 L. Ed. 2d 358, 103 S. Ct. 1790.) Garner reasoned that where it is clear to the trial court that a notice of appeal is deficient by reason of untimeliness, lack of essential recitals or reference to a nonappealable order, it may disregard the purported notice of appeal and proceed with the case, knowing that it has not been deprived of jurisdiction since the deficient notice of appeal does not transfer jurisdiction to the appellate court. (United States v. Garner (9th Cir. 1981), 663 F.2d 834, 837.) In Cannon, the court noted that the mere filing of a notice of appeal with reference to a frivolous motion or one which failed to raise a colorable claim of double jeopardy did not divest the trial court of jurisdiction to proceed with the trial, and that both the trial court and the appellate court would have jurisdiction to proceed. (United States v. Cannon (7th Cir. 1983), 715 F.2d 1228, 1231.) We conclude that the reasoning of these cases is applicable here.

The appeal from the judgment of the circuit court of Du Page County is dismissed.

Dismissed.

LINDBERG and VAN DEUSEN, JJ., concur.

      We note that, prior to trial, the State tiled a motion in limine “to permit use of certain statements of co-defendant Richard A. Heidecke, Jr., in evidence against the defendant in the instant case ***.” No hearing was held and no pretrial order was entered on the motion.