author: Mr. JUSTICE MILLS

text:
    ALLEMED, INC., Plaintiff-Appellant, v. THE DEPARTMENT OF REVENUE, Defendant-Appellee.
    Fourth District
    No. 17147
    Opinion filed November 13, 1981.

      Halfpenny, Hahn & Roche, of Chicago (Richard F. Hahn and James F. Flanagan, of counsel), for appellant.
    Tyrone C. Fahner, Attorney General, of Chicago (Patricia Rosen, Assistant Attorney General, of counsel), for appellee.
   Mr. JUSTICE MILLS

delivered the opinion of the court:

A tax question.

Or — to be more precise — several tax questions.

It’s a mixed bag — we affirm in part, reverse in part and remand.

Allemed, Inc., is in the business of selling drugs, equipment, supplies, pharmaceuticals, and biologicals to veterinarians. Its headquarters are in Missouri; it has no office, place of business, or stock of goods in Illinois. Allemed has three salesmen who, together, spend approximately 10 man-days per month in Illinois. These salesmen work exclusively for Allemed and cover roughly defined territories. However, most customers place their orders by phone with Allemed’s Missouri office rather than with a salesman. Even the few orders that salesmen do write up must be accepted at the Missouri headquarters. Most deliveries are made through common carrier, though Allemed itself delivers some orders.

From June 1974 through November 1977, Allemed paid no Illinois Use Tax or Illinois Service Occupation Tax on its sales to Illinois veterinarians. The Department of Revenue (Department) audited Allemed for that period and issued a notice of tax liability of $69,761.56. At the administrative hearing held on this matter, Allemed’s president, Walter Allen, testified that he had previously worked for a similarly operated company, which had paid no Illinois tax on its Illinois sales. Furthermore, Allemed had twice been assured — from both the East St. Louis and the Springfield offices of the Department — that it was not subject to Illinois tax since it had no place of business in Illinois. Allen testified that he thought some kind of tax should be paid and thus collected Missouri sales tax on Allemed’s Illinois sales.

Following the hearing, the Department performed a reaudit because it had changed its interpretation of a particular statutory exemption. Thereafter, the Department issued a final assessment of $55,256, consisting of a $34,535 tax delinquency, a $6,907 penalty, and $13,814 interest. Allemed brought an action for administrative review, and the circuit court affirmed the Department’s assessment.

I

Allemed initially contends that the commerce clause of the Federal Constitution precludes Illinois from requiring it to collect its Use Tax and Service Occupation Tax. Use taxes and service occupation taxes are common means used by States to supplement their sales tax schemes. By these taxes, a State attempts to reach goods which have originated in another State but which are purchased by the taxing state’s residents for use in the taxing State. Although the consumer is the party taxed, States have sought to simplify administration of these taxes by requiring sellers to collect them. Thus arise problems concerning due process and the commerce clause. See J. Nowak, R. Rotunda & J. Young, Handbook of Constitutional Law 357-61 (1978).

Illinois’ taxing scheme recognizes that its Use Tax and Service Occupation Tax cannot be imposed in such a way as to burden interstate commerce. (See Ill. Rev. Stat. 1979, ch. 120, pars. 439.3,439.103, and 440.) However, the Use Tax is to be collected by any retailer “[h]aving ° * any agent or other representative operating within this State under the authority of the retailer * 9 9 irrespective of whether such * * * agent 9 9 9 is located here permanently or temporarily 9 9 (Ill. Rev. Stat. 1979, ch. 120, par. 439.2.) Similar coverage is given under the Service Occupation Tax. Ill. Rev. Stat. 1979, ch. 120, par. 439.102.

Our analysis of whether Allemed may constitutionally be made subject to the Illinois Use Tax and Service Occupation Tax must begin with General Trading Co. v. State Tax Com. (1944), 322 U.S. 335, 88 L. Ed. 1309, 64 S. Ct. 1028. In that case, the court upheld imposition of the Iowa Use Tax upon a seller which maintained no office, branch, or warehouse in Iowa though it sent traveling salesmen into that State. These salesmen solicited orders, which were subject to acceptance at the seller’s Minnesota office. The goods were shipped from Minnesota to the buyer by common carrier. Summarizing the law on the subject, the court said:

“[N]o State can tax the privilege of doing interstate business. [Citation.] That is within the protection of the Commerce Clause and subject to the power of Congress. On the other hand, the mere fact that property is used for interstate commerce or has come into an owner’s possession as a result of interstate commerce does not diminish the protection which he may draw from a State to the upkeep of which he may be asked to bear his fair share.” 322 U.S. 335, 338, 88 L. Ed. 1309, 1312, 64 S. Ct. 1028, 1029.

In Miller Brothers Co. v. Maryland (1954), 347 U.S. 340, 98 L. Ed. 744, 74 S. Ct. 535, on the other hand, the court held that Maryland could not require a Delaware seller to collect its use tax where the seller maintained a Delaware retail outlet to which Maryland residents came to make purchases. Many purchasers took the goods home from the seller’s store; delivery was made to other Maryland buyers by common carrier or by the seller’s own truck. The seller’s only solicitation in Maryland consisted of general advertising. The court distinguished General Trading on the basis of the amount of activity the respective sellers performed in the taxing States and said, “[D]ue process requires some definite link, some minimum connection, between a state and the person, property or transaction it seeks to tax.” (347 U.S. 340, 344-45, 98 L. Ed. 744, 748, 74 S. Ct. 535, 539.) Although the Maryland buyers were clearly liable for the use tax, there was no jurisdictional basis for requiring the seller to collect that tax.

Also relevant to our inquiry is Scripto, Inc. v. Carson (1960), 362 U.S. 207, 4 L. Ed. 2d 660, 80 S. Ct. 619, wherein a Georgia seller had no office, warehouse, or other place of business in Florida, nor did it have a regular employee in that State. Its orders were solicited by 10 residents of Florida who had specific territories and received commissions on orders they took. These people had contracts with Scripto and were referred to as “independent contractors.” They did not spend full time soliciting sales for Scripto. Orders were sent to Georgia for acceptance or refusal; no money changed hands between customers and the independent contractors. The court decided that General Trading controlled and that the nexus required by Miller Brothers between a vendor and a taxing State was present. “The test is simply the nature and extent of the activities of the appellant in Florida.” (362 U.S. 207, 211-12, 4 L. Ed. 2d 660, 664, 80 S. Ct. 619, 622.) The court distinguished Miller Brothers largely on the fact that there the buyers had gone to the seller’s place of business. Scripto has been described as representing “the furthest constitutional reach to date of a State’s power to deputize an out-of-state retailer as its collection agent for a use tax 0 ° National Bellas Hess, Inc. v. Department of Revenue (1967), 386 U.S. 753, 757, 18 L. Ed. 2d 505, 509, 87 S. Ct. 1389, 1392.

We conclude that the facts of this case align it with the General Trading and Scripto cases rather than with Miller Brothers. Here, there is the “minimum connection” required by Miller Brothers, for Allemed’s agents went into Illinois — a factor that the Scripto court found determinative. Thus, we hold that the Department has not violated the commerce clause of the Federal Constitution by holding Allemed subject to the Illinois Use Tax and Service Occupation Tax.

II

Allemed next contends that a certain exemption was not properly applied in assessing its tax delinquency. Section 3 of the Use Tax Act (Ill. Rev. Stat. 1979, ch. 120, par. 439.3) provides:

“A [use] tax is imposed upon the privilege of using in this State tangible personal property, other than farm chemicals, purchased at retail from a retailer.” (Emphasis added.)

The record in this case indicates that the Department had a difficult time deciding how to interpret the “farm chemicals” exemption. Prior to the hearing, the Department had said that it would not allow exemption of a sale unless the purchasing veterinarian was registered with the Department. In addition, the exemption would apply only if the animals upon which the chemicals were to be used were for resale. Further, horses were not considered farm animals; any chemicals to be used on horses, therefore, would not be regarded as farm chemicals. Allemed was apparently informed of these interpretations prior to the hearing and constructed exhibits that would allow the hearing officer to determine whether various items qualified for the exemption.

At the close of the hearing, however, the hearing officer ruled that the exemption should also apply to sales to unregistered veterinarians. But he said that the exemption would be inapplicable “to chemicals which are not used exclusively for treatment of farm animals.” This interpretation of the exemption required the Department to perform a reaudit in order to determine Allemed’s tax liability. It is clear from the record that in this reaudit the Department used the labels on chemicals to determine whether they were usable exclusively on farm animals. Counsel in the Department’s legal division advised not to allow the exemption “where the labeling does not indicate it is clearly for use in farm animals, even though the supplier might believe that simply by increasing the quantities of a particular chemical or drug, it is possibly used on large farm animals.” In addition, the Department decided that horses should be classified as farm animals and that the exemption should apply regardless of whether the animals upon which a chemical would be used were for resale.

The foregoing litany indicates that the Department went into this hearing without first determining what its position should be. Indeed, the only trait that the Department has displayed here with any consistency is its propensity to vacillate. The tragedy of such a practice is that the taxpayer has no reliable guidance in preparing for a hearing — no certainty that he is presenting evidence in a form that ultimately will be usable in making a decision as to his tax liability. The result is that both the Department and the taxpayer must redo much of their work to meet the Department’s changing positions. The consequent expense and inefficiency for both parties are obvious. Admittedly, the changes the Department made in its position inured to Allemed’s benefit. However, there is nothing in the record to indicate that anything that occurred at the hearing caused the Department to change its position. Thus, the Department could have — and should have — made a firm decision, prior to the hearing, of what its interpretation of the farm chemicals exemption would be.

The legislature has not defined “farm chemicals.” The Department’s Rule 13 under the Retailers’ Occupation Tax describes a farm chemical as “any chemical product used “ * * in the production or care of animals that are to be sold or the products of which are to be sold.” The rule lists various examples: stock sprays, disinfectants, stock tonics, serums, and vaccines. As noted above, the Department finally decided that the exemption applies only if a product’s label indicates that it is usable exclusively on farm animals. Allemed contends that this interpretation is too narrow, given the broad statutory language.

The Department’s requirement that a chemical be usable exclusively on farm animals was obviously intended to assure that an exemption would not be allowed for chemicals used on creatures that could not be denominated farm animals: house cats, hamsters, pet mice, parakeets, and boa constrictors. This construction is consistent with the rule that a statutory exemption is to be strictly construed. (Telco Leasing, Inc. v. Allphin (1976), 63 Ill. 2d 305, 347 N.E.2d 729; Heller v. Fergus Ford, Inc. (1975), 59 Ill. 2d 576, 322 N.E.2d 441.) Admittedly, the exclusivity requirement probably causes the taxpayer to be denied an exemption for particular containers of chemicals which ultimately are used on farm animals. However, the only practical time to determine whether the exemption applies is the time of sale — i.e., when Allemed collects the tax. Since a taxpayer has the burden of clearly showing that he comes within an exemption (Telco Leasing; Heller), it is quite reasonable to disallow this exemption for items that possibly will be used on creatures other than farm animals. The requirement that the information be on the product’s label would also seem to be a reasonable means of requiring clear proof that the exemption applies.

Ill

Allemed also objects to the fact that the reaudit was performed without notice to its attorney and that the Department considered further evidence at that time, thus basing its final assessment on matters not in the record. (See Smith v. Department of Registration & Education (1952), 412 Ill. 332, 106 N.E.2d 722.) We agree with the State that Allemed has waived these objections. At the hearing, Allemed’s secretary-treasurer, responding to the hearing officer’s question, stated that she would be willing to make “backup material” available to the Department in the future if requested. Allemed cannot now contend that the Department should not have used evidence which Allemed agreed to provide and apparently did provide. The argument that Allemed’s attorney was unaware of the reaudit and matters relating to it is not a factor which works to Allemed’s benefit. (Allemed does not allege a breach of Supreme Court Rule 7 — 104 (79 Ill. 2d R. 7 — 104).) Allemed itself clearly knew that the Department was looking into the matter further, and it should have contacted its attorney if further assistance from him was desired. Furthermore, the attorney was present at the hearing and presumably heard the secretary-treasurer’s promise to provide other data.

IV

Allemed next argues that it should have been given a credit for the Missouri sales tax it paid upon sales made to Illinois buyers. Section 3 of the Use Tax Act (Ill. Rev. Stat. 1979, eh. 120, par. 439.3) provides:

“To prevent actual or likely multistate taxation, the [use] tax herein imposed does not apply to the use of tangible personal property in this State under the following circumstances:
# # #
(c) the use, in this State, of tangible personal property which is acquired outside this State and caused to be brought into this State by a person who had already paid a tax in another State in respect to the sale, purchase or use of such property, to the extent of the amount of such tax so paid in such other State.”

Philco Corp. v. Department of Revenue (1968), 40 Ill. 2d 312, 239 N.E.2d 805, indicates that courts are not necessarily to give this provision its strict literal meaning. In that case, Rental Equipment Company, a lessor of heavy construction equipment, leased equipment to lessees for use in Illinois. The equipment was delivered to the lessees at Rental’s place.of business in Missouri. After deciding the Use Tax was applicable to Rental, the court addressed Rental’s contention that it should receive a credit for Missouri sales taxes that its lessees had paid upon leasing the equipment.

The Department had denied Rental the credit because the tax had not been paid by Rental, as apparently required by the provision quoted above. The court reversed and allowed the credit:

“Under a literal reading of the provision for credit, Rental, which had acquired the property outside this State and caused it to be brought here, was not the ‘person who has already paid a tax with respect to the sale, purchase or use of such property 0 ° °.’In our opinion, however, this literal reading of the exemption is not justified. The legislative purpose is to ‘prevent actual or likely multistate taxation.’ That purpose is not served by an interpretation that centers upon the identity of the person who makes the payment to the exclusion of the economic effect of the tax. Whether actual payment of the tax levied by another State is made by the buyer or the seller, or by the lessee or the lessor, is not material to the legislative purpose of avoiding multistate taxation.
We hold, therefore, that Rental is entitled to credit for taxes that have been paid elsewhere with respect to the sale or use of the equipment here involved.” (40 Ill. 2d 312, 327, 239 N.E.2d 805, 813.)

Philco thus obviously mandates a construction of the credit provision that will avoid multistate taxation — without regard for the technical factual requirements that the statute seems to set forth.

The Philco court concluded that Rental had acquired the property outside Illinois and had caused it to be brought into Illinois. The same is true of Allemed. In addition, Allemed clearly “has already paid a tax in another state in respect to the sale” of these items. Therefore, it is clear, from the plain wording of the statute, that Allemed qualifies for the credit. We need not even resort to the kind of liberal construction that the Philco court adopted.

The Department, however, has attempted to wrest the Philco case out of Allemed’s grip and use it as a weapon against Allemed. Focusing upon Philco’s concern with the “economic effect” of the tax, the Department points out that Allemed is merely the collector of the tax, not the party ultimately liable for it. It is thus apparently the Department’s position that since the purchasers are actually the ones liable for the Use Tax, Allemed can require them to reimburse it for any delinquency the Department assesses in this case. (See Pennwalt Corp. v. Metropolitan Sanitary District (N.D. Ill. 1973), 368 F. Supp. 972.) Even if we Ignore the virtual impossibility of Allemed’s collecting a tax from its purchasers at this late date, we must conclude that the Department’s position is directly contrary to the Philco court’s basic concern — that a transaction not be taxed twice. Presumably Allemed has already charged the Missouri sales tax to its Illinois purchasers. Under the Department’s position, these purchasers would be taxed again. Neither the credit provision of section 3 nor Philco contemplates such a result. The Department’s “focus on the person technically liable for payment of the tax is misplaced.” United Air Lines, Inc. v. Mahin (1979), 79 Ill. App. 3d 1004, 1006, 398 N.E.2d 1064, 1066, rev’d on other grounds sub nom. United Air Lines, Inc. v. Johnson (1981), 84 Ill. 2d 446, 419 N.E.2d 899.

Allemed is entitled to the credit for Missouri taxes.

V

Pursuant to section 5 of the Retailers’ Occupation Tax Act (Ill. Rev. Stat. 1979, ch. 120, par. 444), which is applicable to the Use Tax and Service Occupation Tax (Ill. Rev. Stat. 1979, ch. 120, pars. 439.12 and 439.112), the Department assessed a penalty against Allemed of 20 percent of its tax liability because of its failure to file a return. Allemed argues that the penalty should not have been applied because it was acting in good faith in not paying the Illinois taxes. Courts have said that there is no “good faith” exception to this penalty provision. Columbia Quarry Co. v. Department of Revenue (1968), 40 Ill. 2d 47, 237 N.E.2d 525; Miller Brewing Co. v. Korshak (1966), 35 Ill. 2d 86, 219 N.E.2d 494, appeal dismissed (1967), 386 U.S. 684, 18 L. Ed. 2d 405, 87 S. Ct. 1325.

We agree with Allemed, however, that no penalty should be assessed. It is manifest from the record that Allemed was trying to do what was right. Both because of previous experience in the same type of business and because of assurances from the Department’s own offices, Allemed decided that it should not collect Illinois taxes. But thinking that a tax-free transaction was improper, it collected Missouri sales taxes. The record also indicates that Allemed fully cooperated with the Department at every juncture — in spite of the Department’s inability to decide upon its own position. The Department’s conduct during this case, on the other hand, has been much less than what Allemed in particular, or the citizens of the State of Illinois in general, are entitled to expect from it. Under these circumstances, we hold that the Department could not equitably and in good conscience assess a penalty against Allemed.

In sum, we affirm the Department’s decision that Allemed is subject to the Illinois Use Tax and Service Occupation Tax and its decision as to the items which qualify as farm chemicals. However, we reverse its decision disallowing credit for Missouri sales taxes paid on Illinois sales and its assessment of a penalty, and we remand this case to the Department for further proceedings consistent with this opinion.

Affirmed in part; reversed in part and remanded.

GREEN and WEBBER, JJ., concur.


source: Caselaw Access Project

author: Mr. JUSTICE WEBBER

license: Public Domain

text:
      In re MARRIAGE OF TOSSIE L. PRUITT, Petitioner-Appellee, and DAVID EUGENE PRUITT, SR., Respondent-Appellant.
    Fourth District-
    No. 17054
    Opinion filed November 19, 1981.

      Rod J. Pitts, of Smith, Larson & Pitts, Ltd., of East Alton, for appellant.
    Gail R. Gisy, of Suddes, Davis & Wittman, P. C., of Jerseyville, for appellee.
   Mr. JUSTICE WEBBER

delivered the opinion of the court:

The petitioner, Tossie Pruitt, filed a petition in the circuit court of Greene County for the dissolution of her marriage to the respondent, David Pruitt. The circuit court entered a judgment dissolving the marriage on April 25, 1979, and on February 10, 1981, the court entered an order disposing of the property held by the parties. The respondent now appeals the trial court’s order of distribution of property and the denial of his motion for a change of venue.

The parties were married in 1974. There were no children born or adopted by the parties, but each had children by a previous marriage. Prior to their marriage, the parties were each living in his own mobile home. Upon their marriage, respondent sold his mobile home, and he and his children moved into the petitioner’s mobile home. As the living quarters were cramped, the parties then moved onto a farm owned by the petitioner’s parents in the spring of 1975. About one year after the parties had moved onto the property, petitioner’s parents conveyed the property to respondent and petitioner as joint tenants. The farm consisted of about 5.7 acres, a farmhouse and some out-buildings. The farmhouse was in disrepair and the parties performed extensive remodeling to the farmhouse and subsequently mortgaged the property.

At the hearing on distribution of property, two witnesses testified as to the present value of the farm property. One witness had appraised the value of the farm at $27,600, and the other witness had appraised the value of the farm at $32,000. At the time of the hearing, $18,700 of mortgage indebtedness remained outstanding. The petitioner testified that she had contributed $5,600 of her own money toward remodeling the farmhouse. The respondent declined to say precisely how much money he had brought to the marriage, but believed it was about $1,500. The petitioner had worked as a nurse during most of the marriage. The parties’ earnings for the years 1975 through 1978 were fairly equal. In July 1978 the respondent was injured while lifting some soft drink cylinders which resulted in serious and permanent injury to his back. As a result, he has undergone several back surgeries and is considered disabled and unable to work. At the time of the hearing, the respondent’s sole income was $540 per month in social security disability benefits. The petitioner’s net income was $741 per month as a registered nurse. Social security disability payments are also available in the amount of $89 per month to the respondent’s two children from his prior marriage and the petitioner’s three children from her previous marriage.

The trial court found that all personal property of the parties, both marital and nonmarital, had been equally divided among the parties, with the exception of farm machinery still located on the farm. The trial court awarded the 5.7 acres of farmland together with the house and improvements to the petitioner with petitioner to assume all indebtedness on the farm. The petitioner was ordered to pay the respondent $4,800 in full satisfaction for all claims for maintenance and property rights. The respondent was also awarded all the farm machinery.

The respondent contends on appeal that he did not receive a just proportion of the marital property, that he should have been awarded periodic maintenance, that the trial court failed to assign to him his nonmarital property, and that his request for a change of venue subsequent to the hearing on the grounds for dissolution but prior to the hearing on property distribution should have been granted as a matter of law. We affirm the judgment of the circuit court.

The issue we deem to be the most significant is whether the respondent was entitled, as a matter of law, to a change of venue when petitioning the trial court subsequent to the hearing on grounds for dissolution but prior to proceeding to the hearing on property distribution.

Section 1 of the Venue Act provides in pertinent part that:

“A change of venue in any civil action may be had in the following situations:
# # O
(2) Where any party or his attorney fears that he will not receive a fair trial in the court in which the action is pending, because ° * °. In any such situation the venue shall not be changed except upon application, as provided in this Act, or by consent of the parties.” Ill. Rev. Stat. 1979, ch. 110, par. 501.

Section 3 of the Act provides:

“Every application for a change of venue by a party or his attorney shall be by petition, setting forth the cause of the application and praying a change of venue, which petition shall be verified by the affidavit of the applicant. A petition for change of venue shall not be granted unless it is presented before trial or hearing begins and before the judge to whom it is presented has ruled on any substantial issue in the case, provided that if any grounds for such change of venue occurs thereafter, a petition for change of venue may be presented based upon such grounds.” Ill. Rev. Stat. 1979, ch. 110, par. 503.

The long-established rule is that a party’s petition for change of venue must be timely so that a litigant will not be permitted first to form an opinion that the trial court might be unfavorably disposed towards his cause, and then charge the court with prejudice as the basis for a change of venue. Hildebrand v. Hildebrand (1968), 41 Ill. 2d 87, 242 N.E.2d 145.

In the case at bar, the respondent relies on section 403(e) of the Illinois Marriage and Dissolution of Marriage Act. (Ill. Rev. Stat. 1979, ch. 40, par. 403(e).) Respondent argues that section 403(e) requires that dissolution proceedings must be on a bifurcated basis and therefore, his petition for change of venue prior to proceeding to property distribution was timely. Respondent believes that since the division of property cannot be based upon marital misconduct, the hearings are separate and the distribution of property hearing constitutes a new proceeding.

The parties have cited no authority as to this precise issue, nor are we aware of any. However, we reject the respondent’s argument and hold that when a trial judge has ruled upon the grounds for dissolution but has yet to conduct a hearing as to property distribution, the judge has ruled upon a substantial issue in the case and a litigant is not absolutely entitled to a change of venue.

Section 403(e) provides that contested trials be on a bifurcated basis to provide a cooling off period and to encourage amicable property settlement. Section 403(e) does not contemplate that a property hearing constitutes a new or separate proceeding. The parties may waive the 48-hour period and proceed immediately to trial. In default cases, the trial as to all remaining issues proceeds immediately.

We conclude that a litigant may not test the water at the dissolution hearing, forming an opinion that the trial court might be unfavorably disposed towards his cause, and then charge the court with prejudice as the basis for a change of venue to which he is absolutely entitled.

The respondent also maintains that he did not receive a fair division of the marital property. The respondent’s primary objection seems to be that the trial judge failed to consider the farm as marital property. We find no merit in respondent’s argument. The trial court had allowed testimony of the petitioner’s father that he had only wanted to convey the farm to petitioner, but at petitioner’s insistence the farm was conveyed to the parties as joint tenants. However, there is no indication in the record that the trial judge considered the farm to be anything but marital property. The written order expressly notes that the farm was conveyed to the parties in joint tenancy and the respondent was to execute a quitclaim deed to the petitioner for his interest in and to the marital property.

Averaging the two appraised values of the farm, the parties’ equity in the farm is about $12,000. The petitioner had contributed $5,600 of nonmarital funds toward remodeling the farmhouse, and respondent had contributed about $1,500 of nonmarital funds. Each party’s contribution to the marriage appears fairly equal in that both parties worked receiving about the same amount of income and each also spent time and labor in remodeling the farmhouse. The respondent was awarded $4,800 plus all of the farm machinery still located on the farm. The value of the farm machinery is entirely unclear as respondent presented no testimony as to its value, and petitioner could only guess that the farm machinery was worth from $2,500 to $3,000.

While a just division of marital property is mandated, just division does not necessarily mean an equal division. (In re Marriage of Aschwanden (1980), 82 Ill. 2d 31, 411 N.E.2d 238.) We find no abuse of discretion in division of the marital property.

Nor did the trial court err in not awarding the respondent periodic maintenance. The respondent primarily points to his disability and that his only income is his social security disability benefits. He maintains that the physical condition of the parties is a primary consideration under section 504(b) (5) of the Illinois Marriage and Dissolution of Marriage Act. (Ill. Rev. Stat. 1979, ch. 40, par. 504(b)(5).) However, that factor is but one of several in section 504(b) for the trial court to consider in establishing the amount and duration of maintenance and only after the trial court makes a finding that the spouse seeking maintenance is entitled to it after considering section 504(a). At the time of the hearing, the petitioner’s net income was $741 per month. Additionally, petitioner has three daughters from her previous marriage to provide for. Section 504(b)(6) requires that the trial court consider the ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance. We conclude that under the circumstances of this case, the trial court did not abuse its discretion in denying respondent periodic maintenance. Additionally, we note that apparently, although the trial court’s order is unclear, respondent was awarded maintenance in gross. The written order reflects that respondent be paid a sum of $4,800 plus all farm machinery, “in full and complete satisfaction of all claims for maintenance and for all claims of property rights that the respondent could or might have in and to the real estate and personal property ” *

Finally, we must also reject respondent’s argument that the trial court failed to assign to him his nonmarital property. His testimony was that some tools belonging to him are still at the farm and he would like to have them back. The trial court’s written order reflects that the parties had previously divided all the personal property. However, the petitioner testified that while there were still some tools at the farm, the respondent had informed her that he had received everything he wanted. The trial court apparently relied upon the testimony of the petitioner that the parties had received whatever personal property they desired, and we will not disturb that decision.

In view of the foregoing considerations, the judgment of the circuit court is affirmed.

Affirmed.

GREEN and LONDRIGAN, JJ., concur.


text:
    BRUCE McBRIDE, Plaintiff-Appellant, v. THE COMMERCIAL BANK OF CHAMPAIGN, Defendant-Appellee.
    Fourth District
    No. 17162
    Opinion filed November 19, 1981.

      Dobbins, Fraker, Tennant, Joy & Perlstein, of Champaign (D. Cameron Dobbins, of counsel), for appellant.
    Bush, Harrington & Porter, of Champaign (Thomas E. Harrington, of counsel), for appellee.
   Mr. JUSTICE MILLS

delivered the opinion of the court:

A bank as escrow agent.

- - Can it relinquish documents in escrow solely upon the demand of one party to the agreement?

No — if it does, it is at its own peril.

In 1973, plaintiff Bruce McBride and his wife Ruth Ann contracted to buy a parcel of real estate in Grand Traverse County, Michigan, from F. R. Inskip and Ruth F. Inskip, Ruth Ann’s parents. In connection with this purchase, the McBrides gave the Inskips 12 promissory notes for $12,000 each, payable each January 10 from 1974 through 1985, plus a $9,000 note due January 10,1986.

The contract between the McBrides and the Inskips provided that defendant Commercial Bank of Champaign (Bank) should “act as escrow agent for the Buyers and Sellers during the existence of this agreement.” In addition to requiring the buyers to pay the $5 escrow fee, the contract provided:

“The Warranty Deed provided for, the original of this agreement, the insurance policy, and the Abstract of Title shall, as soon as practicable, be deposited with the escrow agent to be held by it until this agreement is fully performed by the Buyers, or otherwise terminated.”

The Inskips’ attorney delivered these documents to the Bank and in an accompanying letter indicated that the parties anticipated that the Inskips would cancel a $12,000 note each January.

Plaintiff filed a complaint against the Bank, alleging that he had performed all acts required of him in the contract and had notified the Bank of. his full performance by letter on April 24, 1979. In this letter, plaintiff demanded delivery of the warranty deed that the Bank held as escrow agent. The complaint further alleges that on May 4,1979, the Bank had marked the deed “Cancelled” and returned it to the Inskips’ agent. The complaint alleges that the Bank thus breached its fiduciary duty to plaintiff, causing him to lose an undivided one-half interest in the real estate and possession of the real estate.

After filing its answer to the complaint, the Bank moved for summary judgment. In support of its motion, it filed an affidavit of J. Michael O’Byrne and also incorporated by reference an affidavit by O’Byrne which had been filed earlier with a motion to dismiss. In the earlier affidavit, O’Byrne stated that he was the Inskips’ attorney in the sale of the real estate to plaintiff. He personally delivered the original of the contract, the warranty deed, the promissory notes, arid the initial escrow fee to the Bank. On March 30,1979, he sent to plaintiff a “Notice of Default,” which was attached to the affidavit as an exhibit. That notice states that plaintiff had failed to pay five $12,000 notes due in 1975 through 1979 and had failed to pay interest on six other notes. The notice advised plaintiff that unless payment of the $60,000 and interest was made, the contract would be “declared forfeited” and the documents held in escrow would be “cancelled” and his interest in the property “terminated.” “[T]he aforesaid payments shall be payable in full on or before the 10th day of May, 1979.”

O’Byrne’s first affidavit further stated that the Inskips had received no payments curing the default and that on May 2, 1979, O’Byrne had notified the Bank of plaintiff’s failure to make payment and provided it with a copy of the notice of default. On May 2, O’Byrne told the Bank that the contract had been terminated because of plaintiff’s default and asked that the deed be cancelled and, along with the notes, returned to O’Byrne. The Bank complied with that request.

In his second affidavit, which was filed along with the motion for summary judgment, O’Byrne stated that a lawsuit was then in progress in Grand Traverse County, Michigan — with the Inskips as plaintiffs and the McBrides as defendants — to quiet title to the real estate involved in the contract.

Also used as support for the motion for summary judgment was a previously filed motion for dismissal of the complaint, signed by the Bank’s president, Richard M. Jorgenson. That motion stated that (1) plaintiff had not been deprived of any interest in the real estate by the Bank’s return of the deed to the Inskips, (2) the Bank was not required by the contract to deliver the deed to plaintiff, (3) plaintiff’s mere delivery of the promissory notes to the Inskips was not payment in performance of the contract, and (4) the Inskips had terminated the contract and, based on that termination, the Bank had cancelled the deed and returned it to the Inskips’ attorney.

Plaintiff filed a motion to strike O’Byrne’s and Jorgenson’s affidavits for failure to comply with Supreme Court Rule 191(a) (73 Ill. 2d R. 191(a)). The record contains no ruling by the trial court on plaintiff’s motion to strike. The court granted the Bank’s motion for summary judgment.

Plaintiff’s initial contention on appeal is that the affidavits of O’Byrne and Jorgenson failed to conform to Rule 191(a), which requires that affidavits in support of a motion for summary judgment be made “on the personal knowledge of the affiants” and “not consist of conclusions but of facts admissible in evidence * * However, we are unable to address the merits of plaintiff’s contention because he has failed to preserve the issue for appeal. When a party moves to strike an affidavit which has been filed in support of a motion for summary judgment, it is that party’s duty to bring his motion to the attention of the trial court and to get a ruling on the motion. His failure to do so waives his objections to the affidavit. Oak Trust & Savings Bank v. Annerino (1978), 64 Ill. App. 3d 1030, 381 N.E.2d 1389; Davis v. Nehf (1973), 14 Ill. App. 3d 318, 302 N.E.2d 382.

Plaintiff next contends that the trial court erred in entering summary judgment in favor of the Bank. A movant is entitled to summary judgment when “the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Ill. Rev. Stat. 1979, ch. 110, par. 57(3).) When the moving party has filed affidavits in support of his motion, the opposing party cannot rely on his pleadings to counter the factual assertions made in the affidavits and raise issues of material fact. (Carruthers v. B. C. Christopher & Co. (1974), 57 Ill. 2d 376, 313 N.E.2d 457; LaMonte v. City of Belleville (1976), 41 Ill. App. 3d 697, 355 N.E.2d 70.) Under such circumstances, the assertions contained in the affidavits must be taken as true. Carruthers; Bezin v. Ginsburg (1978), 59 Ill. App. 3d 429, 375 N.E.2d 468.

Plaintiff’s failure to file counteraffidavits, however, did not automatically entitle the Bank to summary judgment. Rather, the documents filed by the moving party must show that his right to summary judgment is clear and free from doubt. (Indiana Harbor Belt R.R. Co. v. Budd Co. (1980), 87 Ill. App. 3d 91, 408 N.E.2d 944; Yakupcin v. Baker (1980), 83 Ill. App. 3d 624, 404 N.E.2d 869.) This the Bank has failed to do.

In examining the documents which the trial court had before it when ruling on the motion for summary judgment, we find that the Bank should have known, through the information in its possession, that the Inskips notified plaintiff that he was in default on the contract and that his interest in the property would be “forfeited” if he did not make payment by May 10, 1979. By giving that deadline, the Inskips waived any right to a forfeiture before May 10. (Kelly v. Germania Savings & Loan Association (1963), 28 Ill. 2d 591, 192 N.E.2d 813.) But on May 4 — six days before the deadline which the Inskips had set for plaintiff to cure his default — the Bank delivered to the Inskips all items held in escrow. Thus, it is not at all clear that the contract had been “terminated” at the time that the Bank gave up the documents held in escrow, and it cannot be said that, as a matter of law, the Bank breached no duty to the plaintiff in making delivery to the Inskips.

In ruling in favor of the Bank on its motion for summary judgment, the trial court observed that the escrow agreement made no provision as to whom the Bank was to make delivery. The contract merely provided that the Bank was to hold the documents “until this agreement is fully performed by the Buyers, or otherwise terminated.” The trial court noted that McBride had informed the Bank that the contract was performed and that the Inskips had informed the Bank that the contract was terminated. Under these circumstances, said the trial court, the contract was either fully performed or it was terminated, and the Bank, having no instructions, could deliver the documents to the party of its choice. We totally reject this reasoning.

Where, as here, an escrow provision is ambiguous because of a material omission, it is the duty of the trial court to construe the escrow. Its construction will be upheld unless it is against the manifest weight of the evidence. (Estate of Reinhold v. Mansfield (1980), 90 Ill. App. 3d 224, 412 N.E.2d 1146.) The trial court’s construction of this agreement, however, would render it entirely meaningless as a device for protecting plaintiff’s interests under the contract. Under the trial court’s analysis, the Bank would not breach a duty to plaintiff by delivering the documents to the Inskips even if both parties had informed the Bank that plaintiff had performed the contract in full. The only reasonable inference arising from the escrow provision is that the Bank was to make delivery to plaintiff if he performs the contract and to the Inskips if the contract is “terminated” for some other reason. Thus, since the evidence before the trial court revealed that the contract may not have been “terminated” at the time delivery was made to the Inskips, the Bank has not shown that it had a clear right to summary judgment.

When the Bank agreed to be the escrowee for the Inskips and the McBrides, it assumed a fiduciary duty to each of them. (Toro Petroleum Corp. v. Newell (1974), 33 Ill. App. 3d 223, 338 N.E.2d 491.) As such, it was an agent for each party (Ortman v. Kane (1945), 389 Ill. 613, 60 N.E.2d 93), and as agent it was bound to follow the instructions of its principals. (Toro Petroleum Corp.) The trial court and the Bank have made much of the fact that the contract itself gives the Bank no instructions concerning the party to whom to make delivery. That omission, however, does not lessen the Bank’s duty to follow instructions that are given. The controlling factor is that, at the time the Bank delivered the documents to the Inskips, it had also received a demand from plaintiff to deliver them to him. As agent of both parties, the Bank was bound to follow the instructions of both parties.

The fact that it was faced with conflicting instructions and demands did not give the Bank the right to favor one party over the other, but rather placed the Bank upon notice that in obeying the instructions of one and disregarding those of the other, it acted at its peril. (Franks v. North Shore Farms, Inc. (1969), 115 Ill. App. 2d 57, 253 N.E.2d 45; Nathan v. Rehkopf (1895), 57 Ill. App. 212; Davisson v. Citizens’ National Bank (1910), 15 N. M. 680, 113 P. 598, aff’d (1913), 229 U.S. 212, 57 L. Ed. 153, 33 S. Ct. 625.) An escrowee which is willing to ignore the instructions of one of its principals in order to comply with the instructions of the other cannot escape being held accountable for its actions. Faced with this dilemma, the Bank’s only prudent course of action would have been to file an action interpleading the Inskips and the McBrides and deposit the documents with the court. (Franks.) (We express no opinion concerning an escrowee’s duty where subsequent instructions from one or more of its principals contradict, rather than supplement, an original escrow agreement.)

The Bank argues that even if it breached a duty to plaintiff, there is no possible way that the plaintiff has been injured, and the trial court therefore properly granted the motion for summary judgment. The Bank points out that wrongful delivery of a deed held in escrow does not convey title. (Tucker v. Kanatzar (1940), 373 Ill. 162, 25 N.E.2d 823.) The Bank’s position is that even if it had retained the deed or had delivered it to the plaintiff, the quiet-title action now being prosecuted in Michigan would still have taken place. It is there, says the Bank, that title to the land will be decided.

The Bank is operating under the assumption that the Michigan case will determine that the contract has either been terminated or performed. Given the fact that the Bank terminated the escrow prior to the date the Inskips had given plaintiff for curing his default, it is possible that the Michigan courts will decide that the contract has been neither performed nor properly terminated. With that result, perhaps plaintiff would be able to prove some damage that was a proximate result of the Bank’s breach of duty. Furthermore, perhaps plaintiff will be able to prove that the quiet-title action in Michigan would never have been instituted if the Bank had not breached its duty to plaintiff. At this stage of the proceedings, we cannot say as a matter of law that plaintiff was not damaged by the Bank’s breach of its fiduciary duty to him. See Buhler v. Marrujo (N.M. App. 1974), 86 N.M. 399, 524 P.2d 1015.

The Bank having failed to show that its right to summary judgment is clear and free from doubt, we reverse the trial court’s order entering summary judgment in defendant’s favor and remand this case to the trial court for further proceedings.

Reversed and remanded.

WEBBER and LONDRIGAN, JJ., concur.


text:
    ILLINOIS CONSOLIDATED TELEPHONE CO., Plaintiff-Appellant, v. AIRCALL COMMUNICATIONS, INC., Defendant-Appellee.
    Fourth District
    No. 17294
    Opinion filed November 19, 1981.

      Douglas G. Brown and Gary L. Smith, both of Douglas G. Brown, P. C., of Springfield, and Richard F. Record, Jr., of Craig & Craig, of Mattoon, for appellant.
    James L. Capel, Jr., and Dennis Myers, both of Meyer, Capel, Hirschfeld, Muncy, Jahn & Aldeen, of Champaign, for appellee.
   Mr. JUSTICE WEBBER

delivered the opinion of the court:

This appeal presents yet another facet of the seemingly endless contention between the parties as to which of them will provide paging services in Coles County.

On April 16,1980, the Illinois Commerce Commission (Commission) granted to Aircall Communications, Inc., defendant-appellee herein (Air-call), a certificate of public convenience and necessity to perform paging services in Coles County. Illinois Consolidated Telephone Company, plain tiff-appellant herein (Telephone), appealed the order granting Air-call’s certificate to the circuit court of Coles County. That court reversed and remanded the Commission’s order on December 15, 1980. The Commission appealed the circuit court’s order to this court, which affirmed the circuit court in Illinois Consolidated Telephone Co. v. Illinois Commerce Com. (1981), 99 Ill. App. 3d 462, 425 N.E.2d 535.

During the pendency of the appeal to this court on May 15, 1981, Telephone filed a complaint in the circuit court of Coles County against Aircall seeking a preliminary and permanent injunction restraining Aircall from providing paging service in Coles County, and for damages. Aircall filed a motion to dismiss the request for preliminary injunction. The trial court held an evidentiary hearing on the matter and on June 2, 1981, entered an order sustaining Aircall’s motion and denying injunctive relief. This interlocutory appeal followed pursuant to Supreme Court Rule 307(a)(1) (73 Ill. 2d R. 307(a)(1)).

The trial court’s order is based at root on the theory that the Commission’s order is still in effect, notwithstanding the appeal process. The order further recites that Telephone has suffered no irreparable injury. We disagree and reverse.

We believe that the trial court misapprehended the meaning and effect of section 71 of the Public Utilities Act (Ill. Rev. Stat. 1979, ch. 111 2/3, par. 75). In pertinent part that section is read:

“The pendency of an appeal shall not of itself stay or suspend the operation of the rule, regulation, order or decision of the Commission, but during the pendency of the appeal the circuit court, or the reviewing court, as the case may be, in its discretion may stay or suspend, in whole or in part, the operation of the Commission’s rule, regulation, order or decision.”

The trial court took the apparent position that this section is tantamount to an automatic operation of the order during the entire appeal process. Such an interpretation would enervate, if not destroy entirely, the appeal process. It is admitted here that no stay was ever sought. Therefore, the Commission’s order awarding a certificate to Aircall remained in force until the decision of the circuit court on December 15, 1980. As has been indicated, that decision reversed the Commission’s order. At that juncture the Commission’s order necessarily expired and the reversal order of the circuit court stood in its stead to be governed by the stay provisions of Supreme Court Rule 305(b)(1) (73 Ill. 2d R. 305(b)(1)). No stay was sought under that rule.

The Public Utilities Act itself makes just such a provision in section 69 which is read as follows:

“Appeals from all final orders and judgments entered by the circuit court, in review of rules, regulations, orders or decisions of the Commission, may be taken as in other civil cases.” Ill. Rev. Stat. 1979, ch. 111 2/3, par 73.
Furthermore, Supreme Court Rule 1 (73 Ill. 2d R. 1) provides in part: “The rules on appeals supersede statutory provisions inconsistent with the rules and govern all appeals.”

If the statutory provisions of section 71 of the Public Utilities Act set forth above may in any sense be interpreted as an attempt to govern appeals from the circuit court, they must yield to the Supreme Court Rules. People v. Jackson (1977), 69 Ill. 2d 252, 371 N.E.2d 602.

However, we do not believe that any such conflict exists because we discern a step-by-step process from the Commission through the circuit and reviewing courts. Section 67 of the Public Utilities Act (Ill. Rev. Stat. 1979, ch. 111 2/3, par. 71) provides in part:

“An application for rehearing shall not excuse any corporation or person from complying with and obeying any rule, regulation, order or decision or any requirement of any rule, regulation, order or decision of the Commission theretofor made, or operate in any manner to stay or postpone the enforcement thereof, except in such cases and upon such terms as the Commission may by order direct.”

By breaking the progress of a matter through the Commission and through the courts into time segments, the statutory scheme becomes clear. From the time of the Commission’s order through the rehearing process in the Commission, section 67 governs, and any stay must be sought from the Commission. Upon appeal to the circuit court from a denial of rehearing, section 71 governs, and a stay must be sought from the appropriate court. Once the circuit court has acted, section 69 governs, and stays must be sought pursuant to Supreme Court Rules. In this way the statutes and rules may be harmonized and read in pari materia; no conflict between or among them then ensues.

The circuit court was therefore in error in holding that section 71 controlled and that the Commission’s order still possessed vitality.

Aircall argues that when the circuit court on the appeal of the Commission’s order “reversed and remanded,” it was in reality only a remandment and not a reversal. We do not so read it. The order was reversed based on Danville Redipage, Inc. v. Illinois Commerce Com. (1980) , 87 Ill. App. 3d 787, 410 N.E.2d 328, and remanded for a new hearing to determine which of the contestants was first in the field. Until such new hearing is held and a new order issued by the Commission, there is no order in existence. The power of a circuit court to remand only is extremely limited. (Compare N-Ren Corp. v. Illinois Commerce Com. (1981), 98 Ill. App. 3d 1076, 423 N.E.2d 1386, and the cases there cited.) No such situation exists here. The remandment was for the purpose of determining which of the two was to obtain the certificate, not for the purpose of taking omitted evidence. The argument is without merit.

Next the standing of Telephone to obtain a preliminary injunction requires brief discussion. The requirements for the writ are well-known. The moving party must show: (1) that he possesses a right which needs protection; (2) that he will suffer irreparable injury without the protection; (3) that there is no adequate remedy at law; and (4) that he is likely to succeed on the merits. (Armour & Co. v. United American Food Processors, Inc. (1976), 37 Ill. App. 3d 132, 345 N.E.2d 795.) It is difficult to determine which of these criteria were relied upon by the trial court in refusing the injunction. The trial judge stated that Telephone had shown no irreparable injury. However, just before this remark he was comparing the number of customers and the charges of each of the parties, concluding that Aircall had fewer customers and higher charges. The implication is that Aircall was no menace to Telephone.

However, we believe that the harm is broader than that. Telephone’s claim to be first in the field has at least a prima facie appearance of validity. Therefore, it has a protectable right to a determination of its ability to service customers before another utility is allowed to enter the field. The amount of business done by either at the current time is to this extent irrelevant. The purpose of a preliminary injunction is to preserve the status quo (City of North Chicago v. Pixley (1975), 28 Ill. App. 3d 354, 328 N.E.2d 147), and such a writ in this case would maintain the parties in the same position which they occupied at the time of the December 15, 1980, order.

Telephone thus has a protectable right and suffers irreparable injury by the very fact of Air call’s doing business. There is no adequate remedy at law. Under the facts as presented, it would be well-nigh impossible to determine what damages Telephone has suffered by Aircall’s intrusion. Lastly, with its first-in-the-field claim, Telephone hás a very good likelihood of succeeding on the merits.

The trial court was in error in denying the preliminary injunction. Its order of denial is therefore reversed, and the cause is remanded to the circuit court of Coles County with directions to issue the writ in accordance with the prayer of the complaint and upon such terms as it deems just.

Reversed and remanded with directions.

MILLS and LONDRIGAN, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID L. SMITH, Defendant-Appellant.
    Fourth District
    No. 16804
    Opinion filed November 6, 1981.
    — Rehearing denied December 16, 1981.

      Daniel D. Yuhas and Jeffrey D. Foust, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Hugh Finson, State’s Attorney, of Monticello (Diane Roe, Assistant State’s Attorney, of counsel), for the People.
   Mr. JUSTICE MILLS

delivered the opinion of the court:

Anonymous telephone “tip.”

Police respond and arrest.

Motion to suppress both arrest and evidence.

Motion denied.

We affirm.

Facts

On December 28, 1979, Bradley Chitwood (an employee of the city of Monticello) reported to the Monticello City Police that during the previous night someone had forced open an overhead door of a building at the Monticello city landfill and had stolen an electric air compressor belonging to the city.

Four days later, at approximately 10:06 p.m. on January 1, 1980, the Piatt County Sheriff’s Department received a telephone tip from an anonymous male caller that “the subjects who stole the air compressor from the city storage shed at the dump were at Security Storage at this time with the compressor.”

Officers of the Piatt County Sheriff’s Department and of the Monticello City Police proceeded to Security Storage, a private enterprise engaged in the business of leasing space to individuals for the storage of personal property and located east of the city of Monticello. Upon their arrival, the officers observed the defendant and two other persons standing near the defendant’s car. The car was backed up to the open door of a storage bay leased to one of the persons with the defendant. The trunk of the car was open. One of the officers, Deputy Wisher, identified himself and stated that he was looking for the air compressor that had been stolen from the city landfill. The defendant and his companions then moved in front of the open garage doors, blocking Wisher’s view of the interior, and stated that the officers could not enter without a search warrant. Deputy Wisher stepped around the three and shined his flashlight through the open door. In the garage he observed a green air compressor matching the general description of the one stolen.

The officers seized the compressor, placed it in the trunk of a squad car, and transported it to the Piatt County jail. It was later identified as the one stolen.

The defendant and his companions were required to follow the officers to the Piatt County jail. At the jail, Deputy Wisher informed the three that they were at least going to be charged with being in possession of stolen property. Their Miranda rights were then read with Officer Ewers as a witness. Upon questioning, Smith first denied having stolen the compressor, claiming he had found it in a ditch near the landfill. He later confessed that he alone had burglarized the storage shed and that he had stolen the air compressor. The defendant absolved his companions of any knowledge of, or complicity in, his crime. Smith was then incarcerated in the Piatt County jail pending the setting of bail. His companions were released without being charged.

On January 2, 1980, a two-count information was filed in the Piatt County Circuit Court charging Smith with burglary and with theft (under $150). The same day, Smith was arraigned on these charges, a public defender was appointed, and Smith was released on a $2,000 recognizance bond.

Following a preliminary hearing, the defendant pleaded not guilty and was bound over for jury trial. He subsequently filed a motion to suppress on the ground that his arrest was illegal and the fruits of his illegal arrest were inadmissible into evidence. The motion was denied. A motion to reconsider the motion to suppress was allowed and, after briefing and argument, the trial judge again denied the motion to suppress, stating his reasons in an able eight-page memorandum order.

The defendant then waived his right to jury trial. At the bench trial— where all facts were stipulated — defendant renewed his motion to suppress. It was again denied. The defendant then was found guilty of burglary and theft (under $150). He was sentenced to one year probation with a condition of probation that he make restitution as determined by the court. The defendant now appeals his conviction.

Opinion

In denying the defendant’s motion to suppress, the trial judge held that “the totality of the circumstances at the time of the arrest were of such a nature that it would lead a reasonable and prudent man to believe that at the time of the arrest the persons [at Security Storage] were committing, or had committed a crime thereby giving the police probable cause to arrest pursuant to section 107 — 2(c) of the Criminal Code.” The trial court’s holding was premised upon a finding that the two-pronged test for probable cause set out by the Supreme Court in Aguilar v. Texas (1964), 378 U.S. 108, 12 L. Ed. 2d 723, 84 S. Ct. 1509, and Spinelli v. United States (1969), 393 U.S. 410, 21 L. Ed. 2d 637, 89 S. Ct. 584, had been satisfied.

It is a truism that a trial court’s determination of probable cause should not be disturbed on review unless it is manifestly erroneous. (People v. Conner (1979), 78 Ill. 2d 525, 401 N.E.2d 513; People v. Clay (1973), 55 Ill. 2d 501, 304 N.E.2d 280.) The trial judge’s decision to deny the motion to suppress was not manifestly erroneous.

The major precedents in this area — Aguilar and Spinelli — involve the standard under which a magistrate may issue a warrant, not the standard under which a police officer’s determination of probable cause is tested. However, the Supreme Court in Whiteley v. Warden (1971), 401 U.S. 560, 28 L. Ed. 2d 306, 91 S. Ct. 1031, held that the test established in AguilarSpinelli was applicable to both arrest and search warrants. Whiteley further held that the standard was no less for reviewing a police officer’s assessment of probable cause as a prelude to warrantless arrest.

Under Aguilar-Spinelli, probable cause cannot be found upon a hearsay tip unless there is sufficient evidence to conclude that the informant’s source of knowledge is reliable and that the informant is himself telling the truth. The two parts of this test have been labeled the “basis of knowledge prong” and the “veracity prong.” The basis of knowledge prong may be satisfied if a tip includes such minute detail as to indicate that the information was gained in a reliable way. Veracity may be established either by a showing of past performance or that the information in the tip is independently corroborated.

The trial judge believed that the tip in the instant case was sufficiently detailed to establish the reliability of the informant’s basis of knowledge and that it was sufficiently corroborated to demonstrate his veracity. The tip here certainly is more detailed than the one found inadequate in Spinelli, where the only details supplied were two phone numbers. The informant here knew what had been stolen, where it had been stolen, where the stolen item was located, and where the thieves were. On the other hand, the tip here is not nearly so detailed as the one in Draper v. United States (1959), 358 U.S. 307, 3 L. Ed. 2d 327, 79 S. Ct. 329 (describing what the defendant looked like, what he would be wearing, where he would be, when he would be there, and how he would act), cited by Spinelli as a case involving a tip which was a “suitable benchmark” for the kind of detail required before it may be inferred that the information in a tip was acquired in a reliable way. 393 U.S. 410, 416-17, 21 L. Ed. 2d 637, 644, 89 S. Ct. 584, 589.

Nor can the tip here be said to contain any more detail than the one in People v. Gates (1981), 85 Ill. 2d 376, 379, 423 N.E.2d 887, 888, wherein a search warrant was issued, based on the following anonymous letter:

“This letter is to inform you that you have a couple in your town who strictly make their living on selling drugs. They are Sue and Lance Gates, they live on Greenway, off Bloomingdale Rd. in the condominiums. Most of their buys are done in Florida. Sue his wife drives their car to Florida where she leaves it to be loaded up with drugs, then Lance flys [sic] down and drives it back. Sue flys [s/c] back after she drops the car off in Florida. May 3 she is driving down there again and Lance will be flying down in a few days to drive it back. At the time Lance drives the car back he has the trunk loaded with over $100,000.00 in drugs. Presently they have over $100,000.00 worth of drugs in their basement.
They brag about the fact they never have to work, and make their entire living on pushers.
I guarantee [sic] if you watch them carefully you will make a big catch. They are friends with some big drugs dealers, who visit their house often.
Lance & Sue Gates Greenway in Condominiums. ”

The supreme court found this not to be of “sufficient detail to lead a magistrate to conclude that the tip was the product of firsthand knowledge or personal observation” (85 Ill. 2d 376, 389, 423 N.E.2d 887, 893), and affirmed the trial court’s order quashing the search warrant and suppressing evidence obtained thereby.

While the trial judge’s reasoning may have been erroneous in this case, it is the result below, not the reasoning, which will be considered by this court. (People v. York (1963), 29 Ill. 2d 68, 193 N.E.2d 773 (reversing the trial court’s quashing of a search warrant and suppression of evidence).) Because we find that the tip in this case, plus the corroboration of the information contained therein, is sufficient to satisfy both prongs of Aguilar-Spinelli, the result below was correct and we will not disturb it.

Specifically left open by Gates was “the question of whether partial corroboration, combined with an informant’s tip, may cure a deficiency in either prong of the Aguilar test.” (85 Ill. 2d 376, 390, 423 N.E.2d 887, 893.) It is clear from Spinelli that independent corroboration may be considered at least for some purposes in making a probable cause determination. Spinelli held that a magistrate must ask: “Can it fairly be said that the tip, even when certain parts of it have been corroborated by independent sources, is as trustworthy as a tip which would pass Aguilar’s tests without independent corroboration?” 393 U.S. 410, 415, 21 L. Ed. 2d 637, 643, 89 S. Ct. 584, 588.

Thus, corroboration may ordinarily not serve as a means of satisfying the basis of knowledge prong oí Aguilar-Spinelli. The evil to be protected against is the making of probable cause determination based on tavern talk. Unless the informant’s basis of knowledge is revealed, a reviewing court ordinarily cannot make an informed determination of probable cause. The fact that one or two bits of such gossip are true will not serve to validate all other bits. This is the point of Stanley v. State (1974), 19 Md. App. 507, 313 A.2d 847, cited by the defendant.

• 4 However, even Stanley implicitly recognizes an exception to this general rule. That case held only that independent corroboration will not establish basis of knowledge “[t]o the extent to which the unverified portion remains an indispensable element * * (19 Md. App. 507, 531, 313 A.2d 847, 862.) Where all the information in a tip has been independently verified, independent corroboration may establish the basis of knowledge. There is no perilous reliance on “an amalgam of underworld rumor and barroom gossip” (19 Md. App. 507, 531, 313 A.2d 847, 862) if all facts have been verified. Nor is a magistrate or police officer abrogating his duty to make probable cause determinations by relying on an informant’s possibly erroneous conclusions. With all of the information available to them, the magistrate or the police officer may draw his own conclusions.

People v. Andreat (1979), 76 Ill. App. 3d 948, 395 N.E.2d 728, supports this conclusion. There, the police were operating on a tip that Andreat and another had burglarized a pharmacy. The police, while investigating another incident, found Andreat and his co-defendant together with some of the pills stolen from the pharmacy in their possession. This was held to establish probable cause to arrest for the burglary.

The facts of the case before us are similar. Acting on a tip indicating where the perpetrators of a recent burglary and their bounty could be found, the police went to investigate. The defendant was found at the specified location, standing in front of an open storage bay containing an air compressor generally matching the description of the one stolen. It makes no difference that the arresting officer was not certain, when he arrested the defendant, that the air compressor he had seen was the one stolen. All that was required was a reasonable belief; that is, that the view of the compressor and the other information upon which the arresting officer acted be of the type of “factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.” Brinegar v. United States (1949), 338 U.S. 160, 175, 93 L. Ed. 1879, 1890, 69 S. Ct. 1302, 1310.

Defendant’s remaining arguments are similarly without merit. Defendant is simply incorrect that the seizure of the air compressor was a violation of his fourth amendment rights. The arresting officer in this case observed the compressor from the property of a private enterprise which was open to the public. He was in a place where he had a right to be. (People v. Wright (1968), 41 Ill. 2d 170, 242 N.E.2d 180, cert. denied (1969), 395 U.S. 933, 23 L. Ed. 2d 448, 89 S. Ct. 1993 (what an officer saw while peering through a window from a right-of-way owned by the Chicago Transit Authority was in plain view).) The discovery was also inadvertent. The officers were only conducting an investigation based on an informant’s tip and were not certain what they would find. (Compare People v. Pakula (1980), 89 Ill. App. 3d 789, 411 N.E.2d 1385 (affirming the trial court’s suppression of evidence alleged to have been in plain view where a police officer admitted that he had gone to the defendant’s home to see marijuana that he knew was growing there).) It was also immediately apparent that the compressor was evidence of a crime. The officer did not have to be absolutely certain that what he saw was such evidence. (See People v. Holt (1974), 18 Ill. App. 3d 10, 309 N.E.2d 376 (plain view held to apply to an officer’s view of a pair of trousers that he realized only upon closer inspection matched those worn by an attempted rapist); and People v. Rogers (1974), 18 Ill. App. 3d 940, 310 N.E.2d 854 (doctrine applied where officer saw something that resembled a shotgun protruding from under the seat of the defendant’s automobile, but did not know for certain it was a gun until he pulled it out).) The fact that the officers used artificial light to peer into the garage does not affect the application of the plain-view doctrine. (People v. Bombacino (1972), 51 Ill. 2d 17, 280 N.E.2d 697, cert. denied (1972), 409 U.S. 912, 34 L. Ed. 2d 173, 93 S. Ct. 230.) The plain-view doctrine thus applies and the view of the compressor was properly used to establish probable cause to arrest the defendant. See generally Coolidge v. New Hampshire (1971), 403 U.S. 443, 29 L. Ed. 2d 564, 91 S. Ct. 2022.

Likewise, there is no validity to defendant’s argument that under Whiteley v. Warden (1971), 401 U.S. 560, 28 L. Ed. 2d 306, 91 S. Ct. 1031, the corroboration here is insufficient to raise the anonymous tip to the standard set forth in Aguilar-Spinelli because it only establishes innocent facts. It is true that Whiteley held that “the additional information acquired by the arresting officers must in some sense be corroborative of the informer’s tip that the arrestees committed the felony or" 4 “ were in the process of committing the felony.” (401 U.S. 560, 567, 28 L. Ed. 2d 306, 312-13, 91 S. Ct. 1031, 1036.) However, the facts of this case indicate just such corroboration. The arresting officer knew that a green air compressor had recently been stolen and he found the defendant with such a compressor. It was entirely reasonable for him to infer that the defendant was connected with the theft. It is clear from this analysis that the independent verification of the entire tip involved in this case made it as “trustworthy as a tip which would pass Aguilar’s tests without independent corroboration.” 393 U.S. 410, 415, 21 L. Ed. 2d 637, 643, 89 S. Ct. 584, 588.

In fact, the officers in this case would have been derelict in their duty if they had acted in any other manner. They clearly acted in a proper and commendable way.

Affirmed.

GREEN and LONDRIGAN, JJ., concur.


author: Mr. JUSTICE HARRISON Mr. PRESIDING JUSTICE KASSERMAN,

text:
      In re MARRIAGE OF SUSAN ELLEN STRADER, Petitioner-Appellant, and RAYMOND I. STRADER, Respondent-Appellee.
    Fifth District
    No. 80-346
    Opinion filed October 19, 1981.
    — Rehearing denied December 2, 1981.

      KASSERMAN, P. J., dissenting.
    Randall A. Bono, Ltd., of Wood River (William R. Haine, of counsel), for appellant.
    Dunham, Boman & Leskera, of East St. Louis (John W. Leskera and Russell K. Scott, of counsel), for appellee.
   Mr. JUSTICE HARRISON

delivered the opinion of the court:

The petitioner, Susan Ellen Strader, appeals from an order entered May 7, 1980, granting permanent custody of her two sons to respondent, Raymond I. Strader. When the parties were divorced in April 1979, Susan Strader was awarded custody of Brett, age 7 and Jason, age 2. On June 12, 1979, Raymond Strader filed a motion to modify the custody judgment. The court entered a temporary order granting the motion on the basis of an affidavit submitted by Mr. Strader, describing his former wife’s inability to care for the children. She agreed to this arrangement because she was ill. The temporary order read as follows:

“By agreement of the parties, and for the best interests of the children as determined by the parties, the temporary custody of the parties’ children is hereby placed with Respondent Raymond I. Strader, subject to reasonable visitation with the children by the Petitioner.
All child support obligations are suspended until further Order.
The cause shall be set for review in six (6) months from the date of entry hereof to consider the then best interests of the children and the circumstances of the parties.”

As dictated by the terms of this order, the parties scheduled a hearing to review the arrangements six months later, on January 2, 1980. Subsequently, the trial court issued findings of fact and awarded permanent custody of the boys to their father. Susan Strader appeals from that decision, challenging it as against the manifest weight of the evidence and contrary to law. We have reviewed the record carefully and determined that an error occurred. We reverse and remand on the grounds that the trial court failed to apply the proper standard and to make the explicit findings as required by law.

In the order from which Susan Strader appeals, the trial court made the following preliminary determination:

“The first problem presented to this Court was which standard was to be used in determining the issues herein. After hearing the argument of counsel, this Court determined that Section 610 of Chapter 40 was not applicable to this proceeding. The language of ‘best interests’ and the fact that the June 29 order spoke in terms of temporary custody led the Court to this conclusion.”

We hold that it was error for the court to determine that section 610 of the Illinois Marriage and Dissolutions of Marriage Act did not apply. (Ill. Rev. Stat. 1979, ch. 40, par. 610.) The trial court chose to apply the “best interest of the child” standard, appropriate for initial hearings or temporary custody orders. (Ill. Rev. Stat. 1979, ch. 40, pars. 602 and 603.) The present litigation, however, is neither a motion for temporary custody nor an initial custody determination, but rather a modification of the original custody order. As such, the trial court’s authority to modify is governed by the dictates of section 610. (In re Marriage of Batchelor (1980), 89 Ill. App. 3d 781, 783-84, 412 N.E.2d 49.) The correct standard to be applied is contained within the statute.

Sections 610(a) and 610(b) of the Act, entitled “Modification,” set forth the guidelines to be followed when a change of custody is sought. Section 610(a) establishes a two-year waiting period during which applications for modification of a prior child custody award are prohibited. The only exception to this legislative mandate for custodial continuity is an “emergency situation.” A hearing to grant an emergency modification is available to a party making an initial showing, by affidavit only, that the child’s present environment may seriously endanger his physical, mental, moral, or emotional health. Though section 610(a) empowers a court to grant a hearing, the ultimate determination at that hearing must be made within the section 610(b) framework. Section 610(b) requires that, first, petitioner must establish a change of circumstances. A court may not modify a custody award unless it finds, based on facts arising since the prior decree or facts unknown at the time of the prior decree, that a change has occurred in the circumstances of the child or his custodian which necessitates the modification to serve the child’s best interests. (Rippon v. Rippon (1978), 64 Ill. App. 3d 465, 467, 381 N.E.2d 70.) Second, petitioner must show that the modification would, in fact, serve the best interests of the child. Even then, the original custodian must be retained unless one of the prerequisites of section 610(b), subsections (1) through (3), are satisfied. The original custodian must either agree to a change of custody (subsection (1)), or consent to the child’s integration into the noncustodial household (subsection (2)), or the petitioner must show that the child’s present environment endangers seriously his physical, mental, moral or emotional well-being and the harm likely to be caused by a change of environment is outweighed by its advantage to him (subsection (3)).

Thus, modification of a prior custody judgment under 610(b) requires a two-step approach. The court must first find that petitioner met one of the requirements of subsections (1) through (3); then it must apply the “best interests” standard. Gargus v. Gargus (1981), 97 Ill. App. 3d 598, 606, 423 N.E.2d 193, 199.

Prior to the enactment of the Marriage and Dissolution of Marriage Act in 1977, there was some authority that a modification petition could be heard de novo if the original custody judgment had been entered by stipulation. (Schultz v. Schultz (1976), 38 Ill. App. 3d 678, 680, 347 N.E.2d 749.) But section 610 now forecloses that practice. All modifications must meet the statutory requirements of section 610, regardless of whether prior custody was achieved by stipulation of the parties (Gargus), by conditional order (Batchelor), or by grant of physical custody with custodial parent’s consent (In re Custody of Harne (1979), 77 Ill. 2d 414, 396 N.E.2d 499). We know of no rule authorizing the trial court to modify an original custody order without first complying with section 610 guidelines. In fact, the Illinois Supreme Court requires that trial courts make specific findings under either subsections (1), (2) or (3) of section 610(b). As was stated in Harne:

“[Ejxplicit findings by the trial court on points (1), (2) or (3) are not only ‘of aid to a court of review,’ but are indispensable requirements of the statute.” (77 Ill. 2d 414, 420.)

In noting their aversion to modifying custody decrees, the supreme court identified the tone of 610(b) as one actually creating a presumption in favor of the present custodian, and held that a finding under 610(b)(1) through (3) is necessary before an original custody award may be changed. (77 Ill. 2d 414, 421.) In the present dispute, appellee argues that the court effectively made a finding under 610(b)(2). While the trial court mentions in its order that the “children have established themselves in respondent’s home,” this alone does not satisfy the dictates of Harne or the requirements of the statute, particularly since the court stated on the first page of its order that it would not be bound by the standard of section 610.

Whether we view the present litigation as a modification hearing following the entry of a section 603 temporary order or a modification hearing pursuant to a section 610(a) emergency motion, there still exists the requirement that the court apply the standard contained in section 610(b) before applying the “best interests” standard. Therefore, we reverse and remand to the trial court with instructions to follow the guidelines for modification of custody as detailed in the statute.

Reversed and remanded.

WELCH, J., concurs.

Mr. PRESIDING JUSTICE KASSERMAN,

dissenting:

I cannot agree with the conclusion of the majority that section 610 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 610) requires a reversal of the decision of the trial court in this cause; therefore, I respectfully dissent.

The majority concludes that section 610 of the Act prohibits the trial court in the case at bar from considering an application to modify its child custody order within two years after the entry of such order, holding that the court must “first find that petitioner met one of the jurisdictional requirements of subsections (1) through (3) [of section 610(b)]” and then apply the “ ‘best interests’ standard.” Section 610 of the Act provides in pertinent part that:

“(a) No motion to modify a custody judgment may be made earlier than 2 years after its date, unless the court permits it to be made on the basis of affidavits that there is reason to believe the child’s present environment may endanger seriously his physical, mental, moral or emotional health.
(b) The court shall not modify a prior custody judgment unless it finds, upon the basis of facts that have arisen since the prior judgment or that were unknown to the court at the time of entry of the prior judgment, that a change has occurred in the circumstances of the child or his custodian and that the modification is necessary to serve the best interest of the child. In applying these standards the court shall retain the custodian appointed pursuant to the prior judgment unless:
(1) the custodian agrees to the modification;
(2) the child has been integrated into the family of the petitioner with consent of the custodian; or
(3) the child’s present environment endangers seriously his physical, mental, moral or emotional health and the harm likely to be caused by a change of environment is outweighed by its advantages to him.
(c) 0 * #.”

The record in the case at bar indicates that the respondent’s motion to modify the custody judgment was based at least in part upon an affidavit submitted by respondent describing petitioner’s inability to care for the children and, additionally, petitioner’s agreement to the change because she was ill. On June 29,1979, the court entered an order which recited that custody of the children was being changed by agreement of the parties. Such order provided that the cause would be reviewed in six months to consider “the then best interests of the children and the circumstances of the parties.”

At the final custody hearing on May 7, 1980, the court entered an order in which it stated that section 610 of the Illinois Marriage and Dissolution of Marriage Act was not applicable to the proceedings and stated that “[t]he language of ‘best interests’ and the fact that the June 29 order spoke in terms of temporary custody led the Court to this conclusion.”

Although the trial court held that section 610 of the Act was not applicable, I am unable to conclude that the language of the court order, when read in its entirety, does not comport with the provisions of section 610 of the Act.

In section 610(a) of the Act it is provided that no motion to modify a custody judgment may be made earlier than two years after its date, unless the court permits such application to be made on the basis of affidavits indicating that the child’s present environment may endanger seriously its physical, mental, moral or emotional health. I can envision few circumstances more clearly indicating compliance with this subsection than the instant case, in which a motion to modify custody supported by an affidavit has been filed, indicating petitioner’s inability to care for the children and accompanied by petitioner’s consent to the arrangement because she was ill.

The temporary custody provision was reviewed after six months, and on May 7, 1980, the court entered the order which ultimately resulted in the instant appeal. In such order the court recited that it felt that “Petitioner did not act responsibly or in the children’s best interests when she left them with Respondent from May 25, 1979 until the order was entered on June 29,1979 changing custody.” Additionally, the court found it to be to the best interests of the children that their permanent custody be placed with respondent and stated: “The children have established themselves in Respondent’s home, and by all indications, are well adjusted and physically and mentally sound, although affected by the stress caused by lack of security in their living situation and their ultimate custody.”

Thus, the trial court found that petitioner did not act responsibly or in the children’s best interests and that the children had established themselves in respondent’s home. While the court did not frame its findings in the express statutory language of section 610(b) of the Act, to require it to do so would be to require form over substance. An examination of the record in the instant case establishes the following: (1) the initial change in custody was made by agreement of petitioner, which is sufficient cause to change custody under section 610(b)(1) of the Act; and (2) the court found that the children were “established” in respondent’s home, also being sufficient grounds to change custody under section 610(b) (2) of the Act.

Finally, it is noteworthy that the court in In re Custody of Harne (1979), 77 Ill. 2d 414, 396 N.E.2d 499, referred to the commissioners’ note to section 409 of the Uniform Marriage and Divorce Act, which is the equivalent of section 610 of the Illinois Marriage and Dissolution of Marriage Act. Our supreme court there quoted with approval that portion of such note which states:

“ ‘Subsection (b) in effect asserts a presumption that the present custodian is entitled to continue as the child’s custodian. * * * Any change in the child’s environment may have an adverse effect, even if the noncustodial parent would better serve the child’s interest. ° ° ”.’ 9A Uniform Laws Annotated sec. 409, Commissioners’ Note (1973).” (77 Ill. 2d 414, 420, 396 N.E.2d 499, 502.)

In the case at bar, respondent, not petitioner, was the custodian of the children. After her surrender of their custody to respondent, petitioner became the noncustodial parent. The portions of the order of the trial court quoted above indicate that court’s hesitancy to remove the children from the custody of respondent in whose home they were “established,” a consideration declared to be fundamental by the Uniform Act commissioners.

For the foregoing reasons, I would affirm the judgment of the trial court.