text:
    RONALD SCHOENEWEIS, Plaintiff-Appellee, v. RAYMOND HERRIN, Indiv. and d/b/a Ray Herrin Construction, Defendant-Appellant.
    Fifth District
    No. 82—52
    Opinion filed December 8, 1982.

      Richard J. Day, of William M. Cox Law Offices, of East Alton, for appellant.
    Leonard F. Berg, of Bono & Haine, Ltd., of Wood River, for appellee.
   JUSTICE KASSERMAN

delivered the opinion of the court:

The plaintiff, Ronald Schoeneweis, hired defendant, Raymond Herrin, a construction contractor, to build a house using plaintiff’s plans. Subsequent to moving into the house, plaintiff brought the instant action to recover the cost of remedying alleged defects in the concrete work on the patio, driveway, and basement floor and to recover for an alleged shortage in the size of the house as compared to the area contracted for. Defendant appeals from a judgment by the court in plaintiff’s favor for $4,000 plus costs of suit.

On appeal, defendant contends that (1) plaintiff agreed to accept the house “as is,” and (2) the amount of the judgment is not supported by the evidence. Defendant seeks either outright reversal, that damages be reduced to nominal damages, or that the cause be remanded for a new trial as to damages only. Plaintiff’s brief states that he “has no objection for a reversal and remand” on the issue of damages; alternatively, plaintiff seeks affirmance.

Plaintiff’s ultimate complaint alleged, inter alia, that defendant had committed a breach of his agreement with plaintiff by negligently constructing the concrete basement floor, driveway, and patio, and by constructing the house in a size less than that agreed upon. In a second count, the complaint alleged that defendant had failed to construct the house in a good and workmanlike manner, citing the allegedly defective concrete work referred to in the prior count and other defects.

According to testimony adduced at the trial, the parties entered into two written agreements concerning the construction. The first, dated August 16, 1978, stated in pertinent part:

“I, Ray Herrin, agree to build, in a workmanship [sic] manner, a house 1206 sq. Ft. on the property owned by Mr. Schoeneweis, for him according to his plans. *** The total cost of this construction will be $37,600.00. [Defendant’s signature.] I, Ronald Scheoneweis [sic], do agree to pay Ray Herrin $4000.00 upon starting this construction and the remaining $33,600.00 within 30 days of completion upon my satisfaction, and the banks [sic] approval of appraisal. [Plaintiff’s signature.]”

The second agreement was dated January 5, 1978; however, according to plaintiff, the date should have been 1979. It stated in its entirety:

“The undersigned, Ronald Schoeneweis, hereby agrees to accept the house on lot #57 Illinois Street in South Roxana, built by Ray Herrin Construction as is. And will complete the yard work and other various carpentry work for which the undersigned is entitled to a rebate in the amount of $1,000.00. [Plaintiff’s signature.]”

Testimony at trial was, in pertinent part, as follows:

Plaintiff testified that water periodically entered his basement between the wall edges and the foundation; the basement floor was cracked in at least half a dozen places; and the floor was not cracked when he moved in on January 5, 1979. He related that he had attempted to seal the floor with sealing compound and waterproof paint without success. He also testified that the driveway had settled and cracked and was now sloped toward the house, as had the patio, all since he had moved in. Plaintiff stated that during construction he had visited the site daily or every other day and that by January 5, 1979, the parties disagreed so badly that they were not speaking to each other. Plaintiff denied being told by defendant that the driveway should have gravel underlying it and should have been permitted to settle before pouring.

Oh cross-examination regarding the January 5 agreement, plaintiff replied affirmatively when asked whether defendant had made it clear that he no longer wanted to have anything to do with plaintiff. When asked whether such agreement meant that the parties would not have anything more to do with each other and that defendant was not going to have anything more to do with the house, plaintiff replied that he couldn’t say they made that agreement either. Instead, according to plaintiff: “He just wanted me to finish it.” On redirect examination, plaintiff testified that he did not think that he was waiving construction defects.

Plaintiff testified that the yard was landscaped (graded) by a small tractor in the summer of 1979.

Defendant testified under section 60 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 60) as follows: The house as built was only 1,152 square feet. There was no rock base underlying the basement floor or the driveway, but the soil underlying that concrete work had been packed and tamped. He related that plaintiff had refused to allow defendant to put rock in place and let it settle before pouring the driveway; that plaintiff had said he did not trust defendant to come back; and that plaintiff said just go ahead and pour it. Defendant stated his opinion that if the patio and driveway sloped toward the house, they must have settled somewhat and that, if there was a water problem in the basement, it was caused by plaintiff’s refusal to allow defendant to grade the yard and plaintiff’s failure to do it himself promptly.

Dr. Harry Duffy, a registered professional engineer and director of the civil engineering program at Southern Illinois UniversityEdwardsville, testified for plaintiff as follows: He inspected plaintiff’s house in August 1979 and there was water standing in the basement and the basement floor and driveway were badly cracked. Both the driveway and the patio sloped toward the house. The witness was of the opinion that the driveway and basement floor should have had four to six inches of crushed rock base; the basement floor should have been reinforced and drain tile should have been laid outside the foundation; the driveway should have had more expansion joints; and the driveway and patio should not have sloped toward the house. Proper repairs would require removal and replacement of the basement floor and driveway, and a sump pump should be installed in the basement or drain tile placed outside the foundation. The patio had already been removed. The witness testified that he measured the house as being 1,155 square feet and that he had not seen the plans or specifications for the house.

Tommy Ross, a concrete contractor, testified that on July 1, 1979, he prepared a written estimate for repairs to the basement floor, driveway, walkway, and stoop, totaling $6,445. Plaintiff’s counsel had the written estimate marked as plaintiff’s exhibit 17, and the written estimate itself is included in plaintiff’s compliance with the trial court’s discovery order. However, the record does not indicate that plaintiff ever moved that plaintiff’s exhibit 17 be admitted in evidence or that the court ever admitted it.

Harry Mason, a building inspector and zoning administrator, testified as follows: He made “final inspection” of plaintiff’s house on May 13, 1979. The patio was cracked and sloped toward the house; the driveway had six major cracks and sloped toward the house; the front sidewalk was cracked; the basement floor had major cracks. The witness was of the opinion that the concrete work should not have cracked that badly that soon.

Defendant, the sole witness in his own behalf, testified as follows: He took the plans provided by plaintiff to city hall and obtained a permit. The permit indicated 1,152 square feet, which figure city hall employees arrived at by examining the plans. The witness told plaintiff that the driveway had to have rock under it and that defendant would pour the driveway after it settled. However, plaintiff said he did not trust defendant to come back and insisted defendant pour the driveway immediately. Defendant was of the opinion that plaintiff’s failure to do the yard work promptly permitted water to come in. He stated that the yard should have been graded in January, but plaintiff let it sit all summer. Defendant estimated the cost of fixing the concrete work as follows: the patio, $100 to $125; the driveway $800 to $900; and the basement, $600 for covering the floor with a two-inch layer of grout. The January 5, 1979, agreement was prepared by defendant with the assistance of an attorney who suggested, inter alia, the “as is” clause. Defendant explained his understanding of that contract as follows: “I told him [plaintiff] I don’t want you to call me back for this and that. Just take the $1,000.00. And he said ‘yes.’ ” Defendant stated: “I thought ‘as is’ would mean we’d be done with one another.”

The trial court explained its judgment in a lengthy memorandum, in pertinent part as follows:

(1) The parties intended the phrase “as is” to refer to the state of completion of the house rather than a disclaimer of warranties. The court noted that both parties were laymen, and that warranties were not expressly discussed.

(2) While the basement was not built in a good and workmanlike manner, this was not the sole proximate cause of the water problems; plaintiff’s failure to promptly do necessary landscaping played a “significant role” in permitting water seepage, resulting in a cracked floor.

(3) The driveway and patio were not built in a good and workmanlike manner. The court found that the driveway would not have been poured in December, an inappropriate time, but for plaintiff’s insistence. The court concluded, however, that this did not entirely relieve defendant of his obligation to properly construct the driveway.

(4) Defendant was not at fault for any shortage in size of the house as compared with the size contracted for. The court noted that plaintiff provided the plans and found no evidence that defendant failed to follow the plans.

(5) Plaintiff is entitled to $4,000 as “fair and adequate compensation” for “the damages that are attributable to Defendant” for the basement, driveway and patio. The court noted Mr. Ross’ failure to testify as to how he arrived at his repair estimate of $6,445, but concluded that defendant’s estimate was “undoubtedly minimized.”

Defendant contends that the trial court erred in determining that the parties did not intend to exclude implied warranties in the agreement of January 5, 1979. Defendant urges that the phrase “as is” is commonly used and easily understood, but he acknowledges that there is no direct authority for construing that phrase in the context of a contract for sale of a new residence. Defendant relies upon section 2 — 316 of the Uniform Commercial Code, which provides that unless the circumstances indicate otherwise, all implied warranties are excluded by expressions like “as is” or “with all faults.” (Ill. Rev. Stat. 1981, ch. 26, par. 2 — 316.) In this regard we note that article 2 of the Code is not applicable to contracts for the sale of real estate. (See Ill. Rev. Stat. 1981, ch. 26, pars. 2 — 102, 2 — 105(1).) However, if it were, section 2 — 316 is of no benefit to defendant because the Uniform Code Comment to section 2 — 316 states that the “exceptions to the general rule” set forth in section 2 — 316(3), including exclusion of implied warranties by expressions like “as is,” are “common factual situations in which the circumstances surrounding the transaction are in themselves sufficient to call the buyer’s attention to the fact that no implied warranties are made or that a certain implied warranty is being excluded.” Ill. Ann. Stat., ch. 26, par. 2 — 316(3), Uniform Commercial Code Comment, at 255 (Smith-Hurd 1963).

Defendant also urges for comparison Gar of alo Co. v. St. Mary’s Packing Co. (1950), 339 Ill. App. 412, 90 N.E.2d 292, and Hurley v. Frontier Ford Motors, Inc. (1973), 12 Ill. App. 3d 905, 299 N.E.2d 387. In Garofalo, the court held that the phrase “as is no recourse” in a contract for sale of “rusty” cans of tomatoes effectively disclaimed implied warranties as to the condition of the contents of the cans. In Hurley, the court held that in light of the provision “All Used Cars Sold ‘As Is’ Unless Otherwise Indicated Here” in a contract for sale of a used car, the buyer did not have the right to rely upon alleged fraudulent misrepresentations by the seller that the seller would pay the cost of needed repairs. Plaintiff concedes the limited applicability of the above authorities to the instant case.

We now consider whether the phrase “as is” effectively disclaimed defendant’s implied warranty of habitability as a matter of law or, alternatively, whether the trial court’s conclusion that the warranty was not effectively disclaimed was contrary to the manifest weight of the evidence.

In construing specific provisions in a contract, the primary objective is to give effect to the intent of the parties, as evidenced by the words used. (Board of Regents v. Wilson (1974), 27 Ill. App. 3d 26, 31, 326 N.E.2d 216, 219.) The intent of the parties must be determined from the language of their agreement alone where it is not ambiguous; further, contract language is not rendered ambiguous by the parties’ failure to agree upon its meaning. {Harris v. American General Finance Corp. (1977), 54 Ill. App. 3d 835, 839, 368 N.E.2d 1099, 1103.) While knowing disclaimer of the warranty of habitability is not against public policy of this State (Colsant v. Goldschmidt (1981), 97 Ill. App. 3d 53, 56, 421 N.E.2d 1073, 1076), any such disclaimer is strictly construed against the builder-vendor. Further, knowing waiver of this protection will not automatically be implied. In the case at bar, the burden is on the seller to prove that the buyer knew that this implied warranty did not attach to the sale of the new residence. The courts have held that one seeking the benefit of such a disclaimer must show that such was in fact the agreement reached. See Colsant v. Goldschmidt; Tassan v. United Development Co. (1980), 88 Ill. App. 3d 581, 588-89, 410 N.E.2d 902, 909.

In the case at bar, the agreement of January 5, 1979, does not refer to any particular implied warranty or to implied warranties in general. Neither plaintiff nor defendant used the terms “implied warranty” or “warranty” or any phrase of like import in testifying at trial. Thus, it appears that neither party was considering implied warranties as such in the context of the agreement of January 5, 1979. However, the parties’ failure to expressly resort to these terms of art does not dispose of the instant inquiry. The parties were not lawyers. Presumably they meant something in agreeing to transfer the resident “as is.” See Board of Regents v. Wilson.

The text of the January 5, 1979, agreement was so brief that the “as is” phrase cannot be deemed inconspicuous. However, the consequences of the purported disclaimer are not explained in the text of the agreement, nor is it clear that plaintiff understood that he was waiving defects in workmanship. Therefore, these facts fall short of demonstrating an effective disclaimer of liability for such defects as a matter of law. See Tassan v. United Development Co.; Herlihy v. Dunbar Builders Corp. (1980), 92 Ill. App. 3d 310, 317, 415 N.E.2d 1224, 1229.

We have yet to dispose of the issue of whether the trial court’s conclusion as to the effect of the “as is” phrase as a disclaimer of implied warranties was contrary to the manifest weight of the evidence. Defendant relies upon the “as is” language of the agreement itself. However, that phrase is merely evidence to support the proposition that the implied warranty of habitability was disclaimed. (See Tassan v. United Development Co. (1980), 88 Ill. App. 3d 581, 589, 410 N.E.2d 902, 909; Herlihy v. Dunbar Builders Corp. (1980), 92 Ill. App. 3d 310, 317, 415 N.E.2d 1224, 1229.) Plaintiff offered a plausible alternative explanation as to the sense in which “as is” was used or intended, viz., that “as is” referred to the incomplete state of construction and relieved defendant from his duty to complete it. This explanation was supported by testimony by both parties that the house was incomplete as of January 5, 1979. While defendant testified as to what significance he attached to the “as is” phrase, neither party testified that defendant’s presently proffered interpretation was explained to plaintiff, orally or in writing, at the time of the January 5, 1979, agreement. The consideration recited in the January 5, 1979, agreement, $1,000, indicates that the parties agree that the house still required landscaping and some carpentry. While the trial court did not so state, in our view $1,000 might well be deemed wholly inadequate compensation for the uncompleted work in addition to an agreement to forego the implied warranties which hitherto had attached to the sale.

We conclude, based on the facts in the instant case, that the trial court’s conclusion that the January 5, 1979, agreement was not an effective disclaimer of defendant’s implied warranties was not contrary to the manifest weight of the evidence.

Next, we consider defendant’s contention that the evidence does not support the award of $4,000 damages to plaintiff. Defendant argues that the trial court engaged in unwarranted speculation in arriving at that figure because plaintiff’s only evidence as to damages was the testimony of Mr. Ross, whose estimate was neither itemized nor characterized as reasonable. Defendant contends that if the trial court found plaintiff to be entitled to damages, only nominal damages should have been awarded. Defendant asks that this court either reduce the judgment for plaintiff to a nominal amount or reverse and remand for a new trial on the issue of damages. Further, plaintiff “agrees with the defendant that the trial court’s award of damages was based upon speculation,” but urges that damages should have been $6,445, the full amount of Mr. Ross’ estimate of costs of repair. Plaintiff’s argument on this point concludes:

“[T]he plaintiff has no objection for [sic] a reversal and remand on this issue. In the alternative, there is sufficient evidence in the record to support a damage award at least as great as that set by the trial court.”

As the party seeking to recover, it was plaintifff’s burden not only to establish that he sustained damages but also to establish a reasonable basis for computation of those damages. (Brewer v. Custom Builders Corp. (1976), 42 Ill. App. 3d 668, 677, 356 N.E.2d 565, 573; Ashe v. Sunshine Broadcasting Corp. (1980), 90 Ill. App. 3d 97, 101, 412 N.E.2d 1142, 1145.) The cases have stated that, if the party having the burden of proof establishes entitlement to damages, yet fails to establish a proper basis from which those damages can be computed, the party is entitled only to nominal damages. (Brewer v. Custom Builders Corp.) Further, damages may not be awarded on the basis of conjecture or speculation. (Alover Distributors, Inc. v. Kroger Co. (7th Cir. 1975), 513 F.2d 1137, 1141.) However, this court will not disturb the trial court’s findings as to damages unless those findings are manifestly against the weight of the evidence. Pathman Construction Co. v. Hi-Way Electric Co. (1978), 65 Ill. App. 3d 480, 490, 382 N.E.2d 453, 461.

We do not agree with defendant’s contention that plaintiff was entitled to nominal damages at most. Mr. Ross’ estimate was not the only evidence as to costs of repairing the concrete work. Defendant testified that repairing the concrete work would cost $100 to $125 for the patio, $800 to $900 for the driveway, and $600 for the basement. While the trial court found plaintiff partly responsible for the defects in the driveway and basement floor, defendant’s testimony supplied sufficient basis for the award of some damages. However, we also reject plaintiff’s contention that plaintiff should have been awarded the full amount of Mr. Ross’ estimate. That estimate included repairs to the items with respect to which the trial court found plaintiff was partly at fault. We do not find the trial court’s conclusion as to plaintiff’s partial fault to be contrary to the manifest weight of the evidence.

The above conclusions require us to decide whether the trial court’s assessment of damages in the amount of $4,000 was supported by competent evidence. Since Mr. Ross’ estimate was not itemized in evidence, there was no basis for the trial court to determine how much of that estimate was attributable to each item without engaging in unwarranted speculation. Plaintiff’s failure to elicit an opinion that Mr. Ross’ estimate was a reasonable estimate of costs of repair does not render that evidence wholly incompetent, as defendant suggests. Instead, defendant failed to cross-examine Mr. Ross on that point or otherwise raise an issue as to the reasonableness of the estimate. (See Sorenson v. Fio Rito (1980), 90 Ill. App. 3d 368, 376-77, 413 N.E.2d 47, 55; Sitnick v. Glazer (1956), 11 Ill. App. 2d 462, 469, 138 N.E.2d 84, 88-89.) Accordingly, we agree with the parties that the cause should be remanded for a new trial as to damages only.

For the foregoing reasons, the judgment of the circuit court of Madison County is reversed, and this cause is remanded for a new trial on the issue of damages.

Reversed and remanded.

HARRISON, P.J., and EARNS, J., concur.


source: Caselaw Access Project

author: JUSTICE JONES

license: Public Domain

text:
      In re MARRIAGE OF KAREN LYNN WILSON, Petitioner-Appellee, and GARY DEAN WILSON, Respondent-Appellant.
    Fifth District
    No. 81—236
    Opinion filed December 7, 1982.

      Rex G. Burke, of Murphysboro, for appellant.
    R. N. Gandy, of Peek and Gandy, of DuQuoin, for appellee.
   JUSTICE JONES

delivered the opinion of the court:

Respondent, Gary Dean Wilson, appeals from a portion of the judgment for dissolution of marriage entered on petition of his wife, Karen Lynn Wilson. Respondent contends that the trial court improperly determined the value of his partnership interest in a timber business as well as the value , of certain real estate and that the property disposition based on these valuations was erroneous. Respondent also cites as error the court’s award of maintenance and child support. We find reversible error in the court’s property disposition and, accordingly, do not reach the maintenance and child support issues.

The parties were married in 1972 and have three children, one bom in 1975 and twins bom in 1977. During the marriage the parties lived in a mobile home located on petitioner’s father’s property. Upon their separation in June 1980, petitioner moved into her parents’ home with the three children, and respondent moved into an apartment.

In May 1978 respondent began a timber business in equal partnership with his brother. He continued to work in the business, known as S & G Timber Products (S & G Timber), through the dates of the bifurcated dissolution hearings. Respondent’s income from the S & G Timber partnership was $13,506 before taxes in 1979. He estimated his earnings to be $15,000 in 1980 although he had already earned $12,570 as of August 30, 1980. Respondent testified that most of his income is made by the fall of the year due to the seasonal nature of the timber business. Petitioner, who earned $4,311 in 1980 from various odd jobs, also assisted in the partnership business prior to the separation by keeping books and records, ordering parts and paying bills.

In April 1979 respondent and his brother purchased 10 acres of land and a building for use in the S & G Timber partnership. The property was purchased for $20,000, and at the time of the hearing was subject to an outstanding mortgage of $14,000. The land and building were carried as assets on the partnership books where the land was valued at $20,000, and the building was valued at $207.

Petitioner testified that as of August 1980 the value of the tangible assets of the partnership including trucks, saws, skidders and other equipment was $40,000, but she did not know the amount of the partnership liabilities. Respondent testified that partnership assets were acquired by borrowing to finance those assets and that as of August 1980 the partnership had $47,000 in assets and $56,000 in liabilities. This did not include another truck purchased in December 1980. If he sold the business as of August 1980, respondent stated, the best he could do would be to break even.

The 1979 partnership tax return introduced by petitioner showed an income loss of $9,000 on gross receipts of $111,000, cost of goods sold of $39,000, payments to partners of $38,000 and deductions for operating expenses of $44,000. The return showed an end of the year inventory of $18,000, cash of $3,500, land of $20,000, and depreciated assets of $20,000 for a total of $61,500. The return further showed mortgages, notes, and bonds payable in one year or more of $65,000 and a loss in the partners’ capital accounts of $3,650. A depreciation schedule showed assets used by the partnership which were purchased for $30,000 and allocated $10,000 in depreciation, $5,000 of which was current depreciation.

The partnership balance sheet for June 1980 showed assets of $63,000 which included $18,000 for inventory, $20,000 for the land and building, and $25,000 for depreciated assets. Long-term liabilities were listed as $46,000, with partnership earnings of $17,000. The August 1980 balance sheet showed assets of $41,000 and long-term liabilities of $46,000, leaving minus $5,098 in partnership earnings.

Halleck Reese, accountant for S & G Timber, testified that the decrease in book value from $63,000 in June to $41,000 in August was due to the fact that the business sold $18,000 worth of timber which had been carried on the books since the first of the year as inventory. The partners’ withdrawals had exceeded actual profits and so included some of the funds generated by borrowing.

Reese stated that book value, which is cost less accumulated depredation, does not disdose fair market value but is only a book transaction for income tax purposes. He was unable to give an opinion as to the fair market value of the partnership. Reese stated that a determination of fair market value would include a consideration of good will but that no value had been assigned to good will on the books of the partnership because the business was started by the partners themselves rather than being purchased as a going business.

In its judgment entered on April 28, 1981, the trial court found that both the partnership interest and the interest in 10 acres of land were marital property to be divided between the parties along with the couple’s mobile home and other household and personal items. The court ordered that:

“1. the undivided one half interest in the 10 acres of land and the building thereon acquired in April 1979 by Gary Dean Wilson and Stanley W. Wilson shall be valued by an independent appraiser and twenty-five percent of the value of the entire tract shall be paid to Petitioner by Respondent in not more than 50 equal monthly installments, without interest if timely paid, commencing 30 days after the date hereof, or as the parties may agree in writing to be filed in this cause within such 30 day period;
2. the undivided one half interest of the Respondent in the business known as S & G Timber products is valued at $12,500.00 and Respondent shall pay 50 percent of that amount to Petitioner in equal monthly installments of not less than $100.00 per month commencing upon the termination of the amount payable as maintenance to Petitioner under paragraph IV hereof. Such payments shall be without interest if timely paid.”

The court entered a supplemental order on the same date in which, “having received the respective evaluations of the real estate identified [in the judgment of dissolution],” the court found

“that the value of such real estate should be fixed at $26,000.00; that such value should be reduced by the amount owed on the note secured by a mortgage on the said real estate, which unpaid balance is fixed at $14,000.00 for purposes of this proceeding and that the value of the undivided net one half of such real estate, heretofore found by this Court to be marital property, is $6,000.00 and that Petitioner should .have and receive $3,000.00 in full for all Petitioner’s right, title and interest in said real estate ***.”

Respondent contends on appeal that the trial court’s valuation of his partnership interest at $12,500 is arbitrary and unsupported by the evidence presented. We agree. For a trial court to apportion marital assets under section 503 of the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1981, ch. 40, par. 503), the proper value of such assets must be established. (In re Marriage of Donley (1980), 83 Ill. App. 3d 367, 403 N.E.2d 1337.) Where the record lacks proper evidence of valuation, there is no basis upon which an appellate court can review the propriety of a trial court’s apportionment of marital property. (In re Marriage of Kundit (1982), 107 Ill. App. 3d 310, 437 N.E.2d 777.) While petitioner in the instant case introduced into evidence extensive business records of the partnership, there was no testimony as to the value of the partnership from which the court could make its finding. When asked his opinion of the fair market value of the business, accountant Reese stated that he could not determine fair market value from the books of the partnership. In the absence of such testimony and in the absence of any indication as to how the court determined the value of respondent’s business interest, we are unable to make a reasoned review of the value ascribed to the partnership interest for purposes of the property disposition. Cf. In re Marriage of Leon (1980), 80 Ill. App. 3d 383, 399 N.E.2d 1006, where the court held that the value of a sole proprietorship insurance business could not be ascertained solely on the basis of books and records of the business which were introduced into evidence; see also In re Marriage of Boone (1980), 86 Ill. App. 3d 250, 408 N.E.2d 96.

In determining the value of respondent’s partnership interest for purposes of the division of marital property, consideration should be given to both the assets and liabilities of the partnership. (In re Marriage of Leon.) The court in In re Marriage of Leon rejected the valuation of the husband’s insurance business based upon its past gross income and quoted with approval the California case of In re Marriage of Lopez (1974), 38 Cal. App. 3d 93, 113 Cal. Rptr. 58. The court there stated, in valuing the husband’s partnership interest in a law firm, that consideration should be given to the existence and value of:

“(a) fixed assets, which we deem to include cash, furniture, equipment, supplies and law library; (b) other assets, including properly aged accounts receivable, costs advanced with due regard for their collectability; work in progress partially completed but not billed as a receivable, and work completed but not billed; (c) goodwill of the practitioner in his law business as a going concern; and (d) liabilities of the practitioner related to his business.” 38 Cal. App. 3d 93, 110, 113 Cal. Rptr. 58, 69.

The Lopez court noted that the husband’s capital account in the law partnership should also be considered in determining the extent of the property to be divided between the parties. Due to the nature of a partnership, a partner not only has rights in partnership assets and profits (Ill. Rev. Stat. 1981, ch. IO6V2, pars. 24, 26) but also has the right to be repaid the amount of his contributions to the capital of the partnership (Ill. Rev. Stat. 1981, ch. lObVa, par. 18). The partners’ capital accounts have no bearing on the value of the partnership property and must be considered separately in determining the value of the partnership interest. McDowell v. McDowell (Colo. App. 1972), 499 P.2d 1208; see Stern v. Stern (1975), 66 N.J. 340, 331 A.2d 257.

Valuation of a partnership interest for purposes of the disposition of marital property, then, is generally approached in the same manner as valuation of a withdrawing partner’s interest (see Stern v. Stern; In re Marriage of Fonstein (1976), 17 Cal. 3d 738, 552 P.2d 1169, 131 Cal. Rptr. 873; McDowell v. McDowell) or valuation of a partner’s interest upon dissolution of the partnership in accordance with applicable statutory provisions (see Ill. Rev. Stat. 1981, ch. lOG1/^, par. 40). (Johnson v. Johnson (Minn. 1979), 277 N.W.2d 208.) The court in Johnson v. Johnson described this valuation method as follows:

“First, the difference between the fair market value of the partnership’s assets, both real and personal, and its liabilities is determined. Next, the partners’ capital accounts, which are debts of the partnership, Petersen v. Petersen, 284 Minn. 61, 169 N.W.2d 228 (1969), are subtracted from that figure. Out of the remainder, the partner’s percentage interest is determined. The partner’s capital account in full is an additional, separate asset to be included in the division of property. [Citation.]” (277 N.W.2d 208, 213.)

See also In re Marriage of Brown (1982), 110 Ill. App. 3d 782.

The record in the instant case is insufficient to permit an evaluation of respondent’s business interest in accordance with this formula as further evidence must be taken to establish the value of partnership assets. The record contains no evidence concerning the fair market value of the tangible assets of the business which, as accountant Reese testified, may be more or less than book value. Further, while the partnership books show that the business has a negative net worth, the fact that it is a going business which generates income indicates that respondent’s partnership interest is not without value to him. (Cf. In re Marriage of Olsher (1979), 78 Ill. App. 3d 627, 397 N.E.2d 488, where the court held that shares of stock in a closely held corporation have an ascertainable value due to the owner’s right to manage and share in future profits of the business; see also In re Marriage of White (1981), 98 Ill. App. 3d 380, 424 N.E.2d 421.) Thus, the existence and value of good will as an asset of the partnership should also be considered. (See In re Marriage of Lopez.) Because of the need for additional evidence on these points, this cause must be remanded for a new trial with directions that evidence be received to enable the trial court to ascertain the value of respondent’s partnership interest. See In re Marriage of White; In re Marriage of Leon.

Attention must also be given to respondent’s contention that the trial court valued the same property twice by treating his interest in the 10 acres of real estate as a separate marital asset when it was part of the partnership assets included in valuing his partnership interest. As we have indicated, the record does not disclose the basis for the trial court’s determination of the value of respondent’s partnership interest, and it is unclear whether the real estate was actually considered by the trial court as a partnership asset. In any event, there was sufficient evidence introduced at trial to support respondent’s contention that the real estate purchased by him and his brother belonged to the partnership and did not constitute a separate marital asset. Both petitioner and respondent testified that the 10 acres was purchased by the partnership and constituted a business asset. Respondent’s testimony that the $20,000 purchase price was carried on the books of the partnership as the value of the real estate is borne out by the business records introduced by petitioner. “Where real estate is bought with partnership funds for partnership purposes, and is applied to partnership uses or entered or carried on the account of the firm as a partnership asset, it is deemed to be firm property.” (Korziuk v. Korziuk (1958), 13 Ill. 2d 238, 242, 148 N.E.2d 727, 729; cf. Rizzo v. Rizzo (1954), 3 Ill. 2d 291, 120 N.E.2d 546, where property purchased for the business and paid for with business funds and contributions of firm members whose only source of income was partnership business was deemed to be partnership property.) In proceeding on remand, then, the trial court is directed to treat the real estate as a partnership asset to be included in the valuation of respondent’s partnership interest. As the fair market value of all partnership assets is to be considered in determining the value of the partnership interest, the parties are not bound by the valuation of the land shown on the partnership balance sheet.

Because the division of marital property is among those factors which must be considered in determining the amount of maintenance (Ill. Rev. Stat. 1981, ch. 40,par. 504(b)(1)) and child support (Ill. Rev. Stat. 1981, ch. 40, par. 505(a)(2)), courts have deemed it desirable to remand to the trial court all interrelated property and support issues once it has been determined that the property division was improper. (In re Marriage of Hellwig (1981), 100 Ill. App. 3d 452, 426 N.E.2d 1087; In re Marriage of Olsher.) We accordingly remand the entire cause for a new trial so that the maintenance and child support awards can be determined in view of the resources available to the wife after an equitable division of marital property is effected. In re Marriaqe of White (1981), 98 Ill. App. 3d 380.

Reversed and remanded.

HARRISON and KASSERMAN, JJ., concur.


author: JUSTICE EARNS

text:
    Robert Hartung, Plaintiff-Appellee, v. CENTRAL ILLINOIS PUBLIC SERVICE COMPANY, Defendant-Appellant.
    Fifth District
    No. 82—260
    Opinion filed December 6, 1982.
    Stephen J. Maassen, of Hoagland, Maucker, Bernard & Almeter, of Alton (Robert B. Maucker, of counsel), for appellant.
    Law Offices of William W. Schooley, of Granite City, for appellee.
   JUSTICE EARNS

delivered the opinion of the court:

We granted defendant’s petition for leave to appeal from the order of the circuit court of Madison County denying defendant’s motion for change of venue, pursuant to amended Supreme Court Rule 306(a)(l)(iv) (87 Ill. 2d R. 306(a)(l)(iv)). We hold that the trial court erroneously denied defendant’s motion.

Plaintiff, Robert Hartung, a resident of Clinton County, Illinois, brought this action against defendant, Central Illinois Public Service Company, an Illinois corporation, for personal injuries sustained by him while employed as a boilermaker during a construction project at defendant’s electrical generating plant at Coffeen, Montgomery County, Illinois. In his complaint, plaintiff alleged that defendant failed to exercise ordinary care and caution for the safety of plaintiff, and failed to provide plaintiff a reasonably safe place to work. Plaintiff alleged that defendant contracted with J. S. Alberici Construction Company to erect structural additions to its plant at Coffeen and that Alberici hired plaintiff as a construction boilermaker to work at that jobsite.

The complaint also alleged that defendant had entered into a contract with codefendant, Sargent and Lundy, a partnership doing business in Madison County, Illinois, to provide the design, engineering and construction supervision of the structural additions. In count II of the complaint, plaintiff alleged that Sargent and Lundy was in charge of the work at the construction site and was guilty of the same acts of negligence alleged to have been committed by Central Illinois Public Service Company.

Defendant filed a special and limited appearance and motion for transfer of venue, alleging that it does not do business in Madison County. This motion was denied by the trial court on June 14, 1979. On January 28, 1982, the trial court granted Sargent and Lundy’s motion for summary judgment and dismissed the partnership from the suit because there was no contractual relationship between it and defendant or J. S. Alberici Construction Company regarding the work performed by plaintiff at the time of his injury.

On March 2, 1982, defendant refiled and restated its earlier motion for transfer of venue, further alleging that Sargent and Lundy was joined solely for the purpose of fixing venue in Madison County. The trial court denied defendant’s motion, and it is from that order that defendant now appeals.

On appeal defendant contends that the trial court erred in denying defendant’s motion for transfer of venue because defendant was not doing business within Madison County for purposes of the venue statute. Section 5 of the Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, par. 5), effective July 1, 1982, section 2 — 101 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 101) provides in pertinent part as follows:

“Except as otherwise provided in this Act, every action must be commenced (a) in the county of residence of any defendant who is joined in good faith and with probable cause for the purpose of obtaining a judgment against him and not solely for the purpose of fixing venue in that county ***.”

Section 6 of the Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, par. 6) effective July 1, 1982, section 2 — 102 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 102) defines the residence of a corporation for venue purposes:

“Any private corporation *** organized under the laws of this State, and any foreign corporation authorized to transact business in this State is a resident of any county in which it has its registered office or other office or is doing business. ***”

Defendant is an Illinois corporation with its registered agent located in Quincy, Adams County, Illinois. Defendant’s office and principal place of business is in Springfield, Sangamon County, Illinois. Defendant does not have an office in Madison County, does not own real estate in Madison County or have utility lines or poles in Madison County for the transmission of electricity.

The evidence further revealed that defendant consummated commercial transactions with 10 different Madison County residents which totalled nearly $4.4 million in 1979. Approximately $3.5 million of this total was attributable to a contract "with Refineries Transport and Terminal Corp., a resident of Madison County, for the hauling of light oil to defendant’s Coffeen power station. The remaining transactions included the purchase of $462,000 of lime, $255,000 of utility poles, $81,000 of valves, fittings and pipes, $50,000 of hydrogen, $11,000 of septic work and equipment, $5,000 of wire rope and slings and $3,000 of railroad equipment.

Plaintiff maintained that these commercial transactions contributed directly to defendant’s production and marketing of its principal consumer product, electricity. Plaintiff further contends that these transactions were done systematically and continuously, thus establishing that defendant was “doing business” within Madison County within the meaning of the venue statute.

The question of what constitutes “doing business” has been considered previously in this State. In Baltimore & Ohio R.R. Co. v. Mosele (1977), 67 Ill. 2d 321, 368 N.E.2d 88, suit was brought in Madison County against defendant railroad under the Federal Employers’ Liability Act for personal injuries sustained by plaintiff. Evidence disclosed that the railroad had no offices or operating facilities within Madison County and that the incident from which the action arose did not take place in that county. It was established that the railroad’s cars frequently passed through Madison County under the operation and control of the Terminal Railroad Association (TRRA) which functions as a terminal and interchange facility for railroads which ship freight to or from St. Louis, Missouri. Defendant owned 6.25% of the stock of the TRRA. The record further disclosed that the railroad solicited business from Madison County shippers and that solicitation generated a substantial amount of revenue for the company.

The Illinois Supreme Court, in Mosele, stated that in order to establish that a defendant is “doing business” within a county for purposes of venue, the defendant must be conducting his usual and customary business "within the county in which venue was sought. After reviewing the record, the court held that the facts revealed that the defendant railroad was not operating its usual and customary business within Madison County and therefore was not “doing business” within that county for purposes of establishing venue.

The “doing business” language of the venue statute was reviewed by this court in Blakey v. Commonwealth Edison Co. (1977), 52 Ill. App. 3d 454, 367 N.E.2d 529. In that case, defendant power company owned railroad cars leased to railroads and hauled by railroad through Madison County. In addition, defendant sold electricity to other power companies through interconnection agreements which were part of a nationwide “grid” system. Although the court noted that it was conceivable that some of the power generated by defendant found its way to customers of other power companies in Madison County, it held that defendant was not “doing business” in Madison County, for venue purposes.

In reaching its decision, the court in Blakey cited with approval the Michigan case of Frees v. Southern Michigan Cold Storage Co. (1972), 43 Mich. App. 756, 204 N.W.2d 782. The Michigan court, in that case, interpreted its venue statute, which was similar to Illinois’, and held that the purchasing of equipment and material for the maintenance of its refrigerator equipment was incidental to its business and did not constitute “doing business” for venue purposes.

In the case at bar, defendant entered into contracts with several Madison County residents to purchase supplies and materials. Additionally, defendant consummated a transaction with another Madison County resident for the hauling of light oil to defendant’s Coffeen power station. This contract, we are told, contemplates the off loading of the oil at the Wood River Terminal on the Mississippi River within Madison County for shipment through the county by truck. The record, however, is silent on this matter.

Plaintiff argues persuasively that a business must purchase the services and raw materials necessary to produce the finished product it sells and that these activities constitute “doing business” just as the sale of a finished product is “doing business.” Plaintiff further points out that defendant would have access to the Madison County courts were these Madison County sellers of materials and services to default on their contracts with defendant. However, counsel for plaintiff candidly admitted at oral argument that these same arguments were made before the supreme court in Mosele and rejected by the court. In Mosele, the court stated:

“*** [I]n order to establish that a defendant is doing business within a county for purposes of venue, quantitatively more business activity within the county must be demonstrated than where the' question is whether the defendant has transacted any business within the State for purposes of service of process pursuant to section 17. The defendant must, in short, be conducting its usual and customary business within the county in which venue is sought.” 67 Ill. 2d 321, 329, 368 N.E.2d 88, 92.

Following the decision of the supreme court in Mosele, we believe the evidence does not support the trial court’s finding of venue in Madison County in the present case. Defendant’s business is the production and marketing of electricity, which is not carried on by defendant in Madison County. The commercial transactions noted above, we believe, are not the usual and customary business of defendant required by Mosele but instead are merely incidental to defendant’s business and do not afford sufficient contact with Madison County for venue.

For the foregoing reasons, the judgment of the circuit court of Madison County denying defendant’s motion for transfer of venue is reversed and the cause is remanded with directions to enter an order transferring the case to a county of proper venue.

Reversed and remanded with directions.

HARRISON, P.J., and KASSERMAN, J., concur.


author: JUSTICE VAN DEUSEN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL SEBAG, Defendant-Appellant.
    Second District
    No. 81—615
    Opinion filed December 7, 1982.

      Ralph Gust, Jr., of Lombard, for appellant.
    J. Michael Fitzsimmons, State’s Attorney, of Wheaton (Scott M. Day and Barbara Preiner, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE VAN DEUSEN

delivered the opinion of the court:

After a bench trial, defendant was convicted of public indecency and acquitted of battery. He was- sentenced to one year’s probation and ordered to pay a fine. Following the trial court’s denial of his request for a public defender, defendant had represented himself at trial.

On appeal, defendant contends (1) that he was not proved guilty beyond a reasonable doubt, (2) that the trial court erred in denying defendant’s request for the appointment of a public defender, (3) that the trial court failed to properly arraign the defendant or secure a valid waiver of his right to a jury trial and (4) that the trial court erred in admitting certain evidence.

Briefly stated, the evidence, based on the victim’s testimony, disclosed that she was a college student living with her grandparents. On the date of the alleged offense, she was sunbathing in the back of the condominium in which she lived and was reading a book. The defendant, uninvited, sat down and engaged her in conversation for about an hour. In the course of that conversation, he talked about his state of sexual arousal and then laid back to show her the rise in his shorts. In answer to the question at trial, “Did he expose himself?” she responded, “Yes. He was. He was sitting Indian style, and he told me that I could look at him if I wanted, that there was nothing wrong with that.” She further testified that he touched himself a few times and asked her to look. She said that he rubbed her arm and leg and touched her feet, although she did not give him permission to touch her. She stated she was scared but admitted that she did not tell the defendant to stop nor did she scream. Though she stated that she could not answer the question of whether or not she had made a date with the defendant to see her on the following Friday between 10 and 10:30 a.m., she did admit that she told the defendant he could stop by and that he should ring the bell with the name Wendt, her grandparents’ name, on it. The defendant was arrested by the police when he returned Friday morning.

A Wheaton police officer testified that he had investigated the incident. He was permitted to testify regarding the victim’s report to the police of the facts constituting the occurrence. In substance, he said that the victim reported that the defendant had touched her and attempted to put his arm around her, that the defendant had been wearing jogging shorts, and that the defendant’s penis was hanging out exposed as he was talking to the victim. Defendant, acting pro se, did not object to the admission of this hearsay testimony.

After the State rested, the defendant took the stand in his own defense. He declared his innocence. Then he denied the substance of the victim’s testimony.

The defendant was convicted on a charge of public indecency, in that he exposed his sex organ in a lewd manner with the intent to arouse his sexual desires. (Ill. Rev. Stat. 1981, ch. 38, par. 11 — 9(a)(3).) In arguing that he was not proved guilty beyond a reasonable doubt, the defendant relies mainly on People v. Grear (1969), 42 Ill. 2d 578, 580, for the proposition that the evidence in sex offense cases must be clear and convincing or substantially corroborated in order to sustain a conviction. He further argues that the evidence in this case, like that in Grear, was not of such a nature so that his conviction should be reversed. However, Grear and the other cases cited by defendant to the same effect are inapposite.

Unlike Grear, the conviction in this case did not “stand or fall on the testimony of the prosecution witness who had only a fleeting opportunity to view [the offense]” nor was there another person present who failed to observe anything out of the ordinary. (42 Ill. 2d 578, 579-80.) The complaining witness and the defendant conversed for about an hour, providing ample opportunity to observe. Also, no other persons were in the vicinity at the time to confirm or contradict the complainant’s account.

Though the defendant maintains that the testimony adduced at trial did not in any manner establish that he had exposed himself, the complainant did respond “Yes” to the question on direct examination “Did he expose himself?” in the course of her description of the events. The defendant strongly relies on lack of corroboration in the surrounding circumstances. It is true that the evidence showed a delay of several hours in reporting the offense, that the complainant did not leave or ask the defendant to leave, that she did not scream or tell the defendant to stop, that she actually made a date to meet the defendant again, and that the defendant did return at the time agreed upon and did not act in a lewd manner.

However, further explicit detail of the manner in which the defendant exposed himself was furnished through the police officer’s testimony regarding the account of the incident which the victim had given to the police. While such testimony was admittedly hearsay, nevertheless it was admitted into evidence without objection. The general rule is that the admission of incompetent evidence must be objected to, if at all, at the time of its admission. Failure to make proper and timely objection to the admission of evidence claimed to be incompetent or otherwise objectionable or to move to strike it out after its admission, giving specific reason for the objection or motion to strike out such evidence generally constitutes a waiver of the right to object and cures the error, if any. (People v. Trefonas (1956), 9 Ill. 2d 92, 98.) The admission of hearsay evidence appearing to support the complainant’s testimony cannot be raised as error for the first time at the appellate level. (People v. Bachman (1981), 92 Ill. App. 3d 419, 421-22; People v. Davis (1970), 126 Ill. App. 2d 114, 116-17.) Moreover, since the declarant was present at trial and subject to cross-examination under oath, the principal reason for excluding the evidence as hearsay was not present. People v. Carpenter (1963), 28 Ill. 2d 116, 121.

Since the supreme court in Grear stated the evidentiary requirements in a public indecency case in the disjunctive, substantial corroboration is not necessary where the evidence is clear and convincing. The complainant’s testimony that defendant exposed himself was positive and, taken with the additional details related to the police officer, was unambiguous. Credibility of witnesses and the weight to be given to their testimony is generally better left to the trial judge who saw and heard the witnesses and his decision should be disturbed by the reviewing court only in exceptional cases. (People v. Neidhofer (1970), 126 Ill. App. 2d 65, 68.) Under the circumstances of the present case, the evidence was sufficient to support the trial judge’s finding that the defendant was guilty beyond a reasonable doubt of public indecency as charged. Compare People v. Grear (1969), 42 Ill. 2d 578; People v. Neidhofer (1970), 126 Ill. App. 2d 65.

Defendant next argues that his conviction should be reversed because he was denied appointed counsel to which he was entitled pursuant to statute. (Ill. Rev. Stat. 1981, ch. 38, par. 113 — 3(b).) The following colloquy took place at defendant’s arraignment:

“DEFENDANT SEBAG: Could I have the Public Defender?
THE COURT: No. They won’t put you in jail. I will not put you in jail for this.
The only time you get a Public Defender is when you go to jail.”

Defendant subsequently proceeded pro se at trial.

Section 113 — 3(b) of the Code of Criminal Procedure of 1963 provides in relevant part:

“In all cases, except where the penalty is a fine only, if the court determines that the defendant is indigent and desires counsel, the Public Defender shall be appointed as counsel. *** The court shall require an affidavit signed by any defendant who requests court-appointed counsel. Such affidavit shall *** [contain] sufficient information to ascertain the assets and liabilities of that defendant.” (Ill. Rev. Stat. 1981, ch. 38, par. 113 — 3(b).)

In this case, the court made no inquiry into defendant’s finances prior to denying his request for appointed counsel, and, upon conviction for one of the two offenses charged, defendant was sentenced to probation for one year in addition to a fine.

The State concedes that in People v. Morgese (1981), 94 Ill. App. 3d 638, this court held that an indigent defendant sentenced to probation is statutorily entitled to appointed counsel. (Compare Scott v. Illinois (1979), 440 U.S. 367, 59 L. Ed. 2d 383, 99 S. Ct. 1158, affirming People v. Scott (1977), 68 Ill. 2d 269 (a criminal defendant is not entitied to appointment of counsel under the Constitution unless the penalty imposed is imprisonment).) However, the State argues that the defendant was under an obligation to establish his indigency. Having failed to do so, the State continues, the defendant, in effect, waived his statutory right to counsel.

In the first place, it should be observed that the trial judge, apparently believing that a defendant not to be sentenced to imprisonment was not entitled to counsel, summarily rejected the defendant’s request for appointed counsel based on a misunderstanding of the law and did not give defendant an opportunity to establish his indigency.

An affirmative act by defendant indicating to the court that he desires counsel (People v. Dupree (1969), 42 Ill. 2d 249, 251, cert. denied (1970), 396 U.S. 1047, 24 L. Ed. 2d 692, 90 S. Ct. 690; People v. Morgese (1981), 94 Ill. App. 3d 638, 643-44) triggers the requirement under section 113 — 3(b) that in all cases, except where the penalty is a fine only, the court shall appoint counsel for defendant if the court determines defendant is indigent. As a part of that process, the section provides that the court shall require an affidavit of assets and liabilities from the defendant.

In light of the circumstances shown by the record in this case, the State’s contention that the lack of any indication in the record of defendant’s financial status at the time of the purported arraignment on June 26, 1981, and of trial on July 16, 1981, deprives him of his statutory right to counsel is without merit. • Having summarily rejected defendant’s request for the appointment of the public defender as his attorney and having failed to require an affidavit signed by defendant with sufficient information to establish the assets and liabilities of the defendant or to otherwise inquire into defendant’s financial status, the trial court left unresolved the factual question of defendant’s ability to afford counsel. Further, the record in this matter shows that an affidavit of indigency having been filed on August 13, 1981, counsel was appointed on that day to represent defendant on appeal. (See People v. Castile (1979), 71 Ill. App. 3d 728, 730-31.) Not having been given an opportunity to establish his indigency after having indicated to the court his desire for appointed counsel, the defendant cannot be said to have waived his statutory right to counsel by failing to do so.

The State’s further contention that defendant waived any statutory right to counsel by proceeding to trial pro se appears equally without merit. It is true that this court stated in People v. Morgese (1981), 94 Ill. App. 3d 638, 644, that the trial court need not advise defendant of his purely statutory right nor make an independent determination on the record to assure a knowing and intelligent waiver of that right because the right is not constitutional in origin. However, the defendant here attempted to assert his right to counsel and, only after being summarily denied, proceeded to trial pro se.

Finally, the State contends that even if the defendant was improperly denied his statutory right to counsel, the only appropriate remedy would be to remand the cause to the trial court for resentencing because section 113 — 3(b) was intended by the legislature to be a limitation on sentencing. Arguably, support may be found for this view in People v. Morgese (1981), 94 Ill. App. 3d 638, 642, where this court said, “the plain meaning of this statutory provision, interpreted in light of People v. Scott (1977), 68 Ill. 2d 269, 369 N.E.2d 881, is that a trial court is precluded from imposing a penalty other than a fíne on an indigent criminal defendant unless he has been afforded the right to appointed counsel or has waived that right.” However, read in context, the statement cannot be interpreted as supportive of the State’s contention. Morgese also states that the legislative intent of section 113 — 3(b) was to go beyond the constitutional requirements for appointed counsel and extend the right to appointed counsel to cases where, as here, probation was imposed. (94 Ill. App. 3d 638, 642-43.) The fifth district of this court has addressed the purpose of an indigent criminal defendant’s right to counsel, whether based on the constitution or statute, and, citing Gideon v. Wainwright (1963), 372 U.S. 335, 9 L. Ed. 2d 799, 83 S. Ct. 792 and Powell v. Alabama (1932), 287 U.S. 45, 77 L. Ed. 158, 53 S. Ct. 55, has stated that an individual cannot be assured a fair trial unless counsel is provided and that the guiding hand of counsel is required at every step in the proceeding. (People v. Cole (1968), 97 Ill. App. 2d 22, 25.) The obvious purpose of the Illinois statute is to protect the rights of an accused from being impaired by the absence of legal counsel (97 Ill. App. 2d 22, 25, citing People v. Rebenstorf (1967), 37 Ill. 2d 572, 575) except, as the statute provides, when the penalty is a fine only. To adopt the State’s position that section 113 — 3(b) is only a sentencing limitation would be contrary to this legislative intent.

Furthermore, this case clearly illustrates the prejudice incurred by an indigent criminal defendant denied such assistance. The question put to the victim by the prosecutor “did he expose himself” called for a conclusion by the witness rather than adducing facts from which the judge could have determined if an offense had, in fact, been committed. As discussed previously, the conviction to a large extent rested on this testimony, and the only support for it was in the form of hearsay testimony by a police officer. Counsel, if present, could have made proper objections to such testimony and presented a better case. (People v. Cole (1968), 97 Ill. App. 2d 22, 27.) We conclude that the trial judge, at no time in the course of the proceedings having restricted himself to the imposition of a fine only and having in fact imposed a sentence of probation, erred in denying the defendant’s request for court appointed counsel without first making a determination as to defendant’s financial status. Under the circumstances of this case, we deem the appropriate remedy is reversal of defendant’s conviction and remandment of the cause to the trial court with directions to ascertain defendant’s financial status and, if it is determined that he is indigent, to appoint counsel. See People v. Cole (1968), 97 Ill. App. 2d 22. Cf. People v. Morrissey (1972), 52 Ill. 2d 418 (violation of defendant’s constitutional right to counsel required reversal of his conviction and remandment of the cause).

Defendant next argues that the trial court failed to properly arraign him on the public indecency charge. (Ill. Rev. Stat. 1981, ch. 38, par. 113 — 1.) A review of the transcript discloses that he was arraigned in open court on the charge of battery and pleaded not guilty but that he was not so arraigned on the public indecency charge. However, according to the provisions of section 113 — 6 of the Code of Criminal Procedure of 1963, where, as here, the defendant proceeds to trial without objecting to the failure to arraign him, the failure to arraign does not affect the validity of the proceeding. Ill. Rev. Stat. 1981, ch. 38, par. 113 — 6.

Defendant also contends that the trial court failed to obtain a proper waiver of his right to a jury trial. (U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, sec. 8; Ill. Rev. Stat. 1981, ch. 38, par. 103 — 6.) It is the duty of the trial court to see that a waiver of right to jury trial is expressly and understanding^ made, and such obligation is not to be perfunctorily discharged. (People v. Surgeon (1958), 15 Ill. 2d 236, 238; People v. Mitchell (1974), 21 Ill. App. 3d 171, 175.) Though a signed jury waiver form is of record in which both docket numbers appear in the caption, a signed jury waiver in itself has been held to be insufficient to show the relinquishment of a defendant’s right to a jury trial. (People v. Lewis (1980), 89 Ill. App. 3d 840, 844.) The determination must rest on the facts and circumstances of each case. People v. Richardson (1965), 32 Ill. 2d 497, 499.

In the instant case, the record shows the following colloquy at the arraignment:

“THE COURT: The charge is offense of battery. How do you plead?
DEFENDANT SEBAG: Not guilty.
THE COURT: You are entitled to have your case tried before a jury or judge.
DEFENDANT SEBAG: Judge.
THE COURT: Jury waiver. Do you understand that by waiving a jury at this time that you cannot reinstate it; do you understand that?
DEFENDANT SEBAG: Yes.”

The defendant was without benefit of counsel, and it does not appear that he was advised of the meaning of a trial by jury nor does it appear that he was familiar with criminal proceedings. (See People v. Mitchell (1974), 21 Ill. App. 3d 171, 175-77.) Moreover, the trial court discussion in the record related to the offense of battery, the defendant not having been arraigned on the public indecency charge. Taken as a whole, the record does not adequately establish a waiver of defendant’s right to a jury trial on the public indecency charge (compare People v. Clark (1964), 30 Ill. 2d 216, 220) and, therefore, requires a reversal of his conviction and remand for a new trial on this additional ground (People v. Mitchell (1974), 21 Ill. App. 3d 171, 177). People v. Murff (1979), 69 Ill. App. 3d 560; People v. Miller (1977), 55 Ill. App. 3d 1047; People v. Bell (1968), 104 Ill. App. 2d 479.

Having determined that this matter must be remanded for a new trial, we do not reach the evidentiary errors raised by defendant.

The conviction and sentence of the defendant for the offense of public indecency is reversed, and the cause is remanded to the trial court for a new trial and other proceedings consistent with this opinion, including a determination of whether or not the defendant is indigent and, therefore, entitled to court-appointed counsel; a proper arraignment on the charge; and a determination of whether defendant desires to knowingly waive his right to a jury trial.

Reversed and remanded with directions.

REINHARD and NASH, JJ., concur.


author: JUSTICE UNVERZAGT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. HERBERT STOUT, Defendant-Appellant.
    Second District
    No. 81—200
    Opinion filed December 7, 1982.
    G. Joseph Weller and Josette Skelnik, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Theodore Floro, State’s Attorney, of Woodstock (Phyllis J. Perko and Cynthia N. Schneider, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

Herbert Stout was charged on a 13-count information in McHenry County with the offenses of burglary, theft, attempt and forgery. This appeal arises from his jury trial on one count each of burglary and theft (Ill. Rev. Stat. 1979, ch. 38, par. 19 — 1(a) and par. 16 — 1(a)(1)), and four counts of forgery (Ill. Rev. Stat. 1981, ch. 38, par. 17— 3(a)(1)).

He was acquitted of the forgery counts and the burglary charge. He was convicted and sentenced to two years in the Department of Corrections for theft over $150, the sentence to be served consecutively to a three-year term imposed three months earlier for his conviction of two other counts of forgery which were contained in the information.

The defendant raises four issues here: (1) whether the trial court erred by limiting his cross-examination of a State witness in order to reveal the witness’ bias, interest or motive for testifying; (2) whether the trial court erred in denying his tendered accomplice instruction; (3) whether the trial court erred in admitting into evidence two search warrants with supporting affidavits; and (4) whether the imposition of a consecutive sentence was improper.

Stout and the State’s key witness at trial, Ronnie Starks, were taken into custody after the police apprehended DeWayne Nicholas, who had attempted to cash a check drawn on the account of the Century Wheels Research Corporation, at the Fox Lake Currency Exchange. The office manager there had previously been alerted that checks drawn on the Century Wheels account were stolen from its parent company, the Precision Switching Company in Spring Grove, Illinois.

Stout was implicated in the offenses charged on the basis of information provided to the police by Ronnie Starks. In two affidavits given to support the issuance of search warrants for a house and automobile belonging to Raymond Shaughnessy, Starks admitted his participation in cashing certain checks he alleged were forged by Stout, checks Stout and Shaughnessy allegedly had told Starks were stolen.

At trial, Starks testified that on May 28, 1980, Stout told him that he, DeWayne Nicholas, Dick Polinski, and Raymond Shaughnessy had burglarized the Precision Switching Company at about 7 or 7:30 p.m. the night before (May 27). Starks testified that on May 28, Stout drew two Century Wheels Research Corporation checks payable to the order of Nicholas and Starks using the checkwriter stolen from Precision Switching. Starks testified that because he cannot read or write, Stout endorsed the check made out to Starks’ name; the checks were later cashed at the Fox Lake Currency Exchange, and Starks, Nicholas and Stout split the proceeds.

The same procedure was repeated the next day, the 29th, except that the first attempt of the men to cash the checks at a currency exchange in Schaumburg was unsuccessful, so they returned to the Fox Lake Currency Exchange where the checks were successfully cashed. Also on the 29th, after the checks were drawn up by Stout, some of the stolen office equipment was removed from Shaughnessy’s house and placed in a red Vega which was parked in Shaughnessy’s front yard.

Stout presented an alibi defense, testifying that on the night of the burglary, he was at the Cozy Cottage, a tavern in Volo, Illinois, from approximately 6 p.m. until 1:30 a.m., with Ray Shaughnessy and Dick Polinski. The testimony of Shaughnessy, Polinski, and the bartender at the Cozy Cottage, Joe Verga, substantially corroborated that of Stout. Stout related that he and his girl friend lived next door to Starks and Starks’ girl friend. At trial, it was revealed that Starks’ girl friend was DeWayne Nickolas’ sister, and a former employee of Precision Switching. Stout testified he was approached by Starks in the early morning of May 28, with the request that Starks be allowed to “leave some stuff” in Stout’s girl friend’s garage. She refused to allow this, and Stout suggested that Starks put the “stuff” in Shaughnessy’s attic storage area, which they did together. Shaughnessy, although at home asleep during the time Starks and Stout moved the “stuff” in, was unaware that this had transpired until Stout mentioned it to him later that morning. Shaughnessy then demanded the items be removed from his house, because he believed the items were stolen. The items were later placed in the red Vega. Stout denied burglarizing Precision Switching, denied any knowledge of, or forging of, any of the checks admitted at the trial, and denied any involvement in the theft of the property identified at trial.

Prior to trial, the State moved in limine that the defendant be prohibited from cross-examining witness Ronnie Starks regarding charges that were pending against him in Lake County (i.e., burglary and theft from a coin-operated machine). The defendant argued he should be permitted to cross-examine Starks as to the charges pending in Lake County for the purpose of exposing any bias, interest, or motive Starks might have to testify falsely against Stout. Defense counsel noted that the pending charges in Lake County occurred after Starks had been placed on two-year probation for burglary in McHenry County (where the defendant’s trial was taking place) on July 31, 1980. Starks was also on probation in Lake County for a misdemeanor charge of exerting unauthorized control over property. Consequently, counsel argued, Starks could be testifying under the belief, reasonable or otherwise, that if' he cooperated with the State against Stout, his probation in McHenry County would not be revoked in view of the pending Lake County charges.

The trial court granted the State’s motion in limine as to the charge pending against Starks in Lake County, but reserved for an offer of proof during the trial whether the McHenry County State’s Attorney had made any promises to him. Following such an offer made in chambers, at which Starks was questioned by defense counsel, the trial court denied defense counsel’s motion to allow him to question Starks in front of the jury. It was the trial court’s finding that there was nothing in the offer of proof that indicated any promise of reward was made to Starks in return for his testimony.

We note that the record shows that Starks was questioned before the jury concerning his conviction in 1975 of a burglary/grand larceny charge in Florida, and his 1980 conviction for burglary in McHenry County following a negotiated guilty plea for which conviction he received a two-year sentence of probation. Part of that plea agreement was that Starks agreed to cooperate with the State’s Attorney’s office and the sheriff’s department in the prosecution of Herbert Stout one time, at one trial. Before his trial in the instant cause, Stout had been convicted of two of the other forgery counts contained in the information, at which trial Starks testified in accordance with his plea agreement. The trial court, however, struck and directed the jury to disregard, a question posed to Starks by the assistant State’s Attorney concerning “other matters” pending against Stout in which Starks was also involved. The jury heard Starks testify that prior to the negotiated plea, he had assisted the State and the sheriff’s office in getting the search warrants for Shaughnessy’s house and car, and that he had provided those authorities with the information necessary to secure those warrants. In later questioning by defense counsel, Starks stated that pursuant to his part of the plea agreement he had testified against the defendant at the “first trial.”

The State urges this court to reject Stout’s assertion of error first, because the jury apparently rejected Starks’ testimony since it found Stout guilty only of theft over $150 which conviction was otherwise supported by the testimony of a defense witness, Raymond Shaughnessy; and second, the error was harmless because the offer of proof revealed Starks had no expectations of leniency.

In support of its arguments, the State cites People v. Wilkerson (1981), 87 Ill. 2d 151, 157, People v. Eddington (1979), 77 Ill. 2d 41, 44-45, cert. denied (1980), 445 U.S. 944, 63 L. Ed. 2d 777, 100 S. Ct. 1340, and People v. Martin (1978), 59 Ill. App. 3d 785.

In our opinion, the State’s reliance on these cases is misplaced. This court has recently considered this same issue in two cases and has found the error was not harmless beyond a reasonable doubt and reversed and remanded each for a new trial. People v. Foley (1982), 109 Ill. App. 3d 1010; People v. Freeman (1981), 100 Ill. App. 3d 478, 481-83.

In Eddington, the court in chambers questioned both the witness and the prosecutor, and concluded no leniency was offered or expected. Here, only the witness was questioned, and his testimony did not clearly negate the possibility that he expected that his cooperation in testifying against Stout would, at the least, militate against the institution of probation revocation proceedings in McHenry County. Additionally, in Eddington, the prosecutor had very little influence over the disposition of the unrelated drug charges which were pending against the witness because they were in another county. Here, although the pending charge was in another county, Lake County, the offense occurred after the witness was placed on probation in McHenry County and, therefore, was a violation of one of the conditions of the witness’ probation; i.e., that he not violate any laws. Thus, the McHenry County State’s Attorney had sole prosecutorial discretion to either maintain the witness’ probationary status or file a petition to revoke the witness’ probation. Finally, the court in Eddington also considered the fact that the witness would be testifying to, and had, in fact, given a statement and previously testified to, the facts surrounding the incident which had occurred two years earlier. It therefore concluded that it was not reasonable to believe that the testimony of the witness would be influenced by any interest or bias in connection with the cannabis charge. People v. Eddington (1979), 77 Ill. 2d 41, 44-45, cert. denied (1980), 445 U.S. 944, 63 L. Ed. 2d 777, 100 S. Ct. 1340.

In Martin, the court found no error occurred when the court, after an in-chambers examination of the witness, refused to permit cross-examination to discover potential bias due to pending battery charges unrelated to the trial of the defendant for arson. However, counsel’s attempt to show bias in that case would have been merely cumulative and, thus, harmless error (People v. Wilkerson (1981), 87 Ill. 2d 151, 157), because the witness had already testified before the jury that he had also been charged with arson, and that his plea agreement with the State in return for his testimony was for a reduction of the charge to criminal damage to property over $150, and a two-year probation sentence. Consequently, the jury was apprised of the witness’ potential bias, interest, and/or motive for testifying. People v. Martin (1978), 59 Ill. App. 3d 785.

In the case at bar, the jury knew the witness had struck a deal with the State to testify onee against the defendant, and that he had done so at the defendant’s first trial. The trial court’s disallowance of any cross-examination regarding the charges pending against the witness in Lake County thus left the jury with the impression that he had nothing to gain by his testimony against Stout and, as pointed out by the defendant, the court’s error was compounded by the jury’s erroneous impression and reinforced by the prosecutor’s comments during closing argument.

In sum, the error may not be dismissed as harmless. Starks was the State’s key witness and his credibility, or lack of it, was crucial to the case. Stout was improperly denied the right to fully confront this key witness before the jury, the ultimate trier of fact and assessor of credibility. As noted above, the evidence of the pending charges would not have been merely cumulative. Further, contrary to the State’s assertion, Shaughnessy’s testimony does not support the defendant’s conviction for theft. Shaughnessy testified that he, meaning himself, thought the “stuff” was stolen. Absent Starks’ specific testimony and the exhibits flowing from Starks (the warrants and supporting, affidavits), there is no evidence in the record which even approaches the quantum which might be termed “overwhelming” evidence, as a result of which the error might be determined to be harmless. (People v. Wilkerson (1981), 87 Ill. 2d 151, 157.) The defendant’s alibi defense at trial was substantially corroborated by three other witnesses, one of whom was not implicated in any way in the offenses charged: the Cozy Cottage bartender, Joe Verga.

We believe the cases cited require the cause be reversed and remanded for a new trial. In view of the disposition of this issue, it is not necessary to address the issue of whether the trial court erred in refusing Stout’s tendered “accomplice” instruction.

Because this cause will be retried, we will address the third issue raised by Stout, that is, whether the trial court erred in admitting the search warrants and supporting affidavits.

Stout argues that the trial court erred in admitting into evidence, over objection, the search warrants and supporting affidavits which were issued for Raymond Shaughnessy’s house and car. Stout contends the warrants and affidavits were improperly admitted because they constituted hearsay and served to improperly bolster the testimony of two crucial State witnesses as evidence of prior consistent statements. He cites primarily People v. Carr (1977), 53 Ill. App. 3d 492, and People v. Tidwell (1980), 88 Ill. App. 3d 808, in support. The State counters that Stout invited and/or waived the error, citing in support People v. Denwiddie (1977), 50 Ill. App. 3d 184, People v. Hayes (1975), 35 Ill. App. 3d 61, and People v. Pallardy (1981), 93 Ill. App. 3d 725.

We note Stout did not raise this issue in his post-trial motion. Ordinarily, under these circumstances, Stout is deemed to have waived review of this issue. People v. Jackson (1981), 84 Ill. 2d 350; People v. Gutierrez (1982), 105 Ill. App. 3d 1059; People v. Christiansen (1981), 96 Ill. App. 3d 540.

However, the waiver rule is not absolute. The supreme court has held that substantial error may be considered if the error was so seriously prejudicial as to prevent the defendant from receiving a fair trial. (People v. Jackson (1981), 84 Ill. 2d 350, 359.) Supreme Court Rule 615(a) provides for this exception: “Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court.” (87 Ill. 2d R. 615(a).) We believe the error claimed was substantial and will review it.

Here, when the State posed a question to its police officer witness on direct examination concerning what information he received from an informant which caused him to pursue the issuance of the search warrant, the defense counsel interposed an immediate objection to the question, stating that the search warrant would contain that information. The assistant State’s Attorney indicated the question was meant to show what the officer’s frame of mind was “in order to pursue the preparation of the search warrant.” Stout argued, in essence, that because the officer’s state of mind was not based on his own first-hand knowledge but, rather, that of the informant (Starks), any testimony on that point would be hearsay. The trial court, apparently misunderstanding the basis for defense counsel’s objection, ordered the assistant State’s Attorney to produce the warrants and affidavits as the “best evidence.” Defense counsel said, “Thank you,” seemingly agreeing with the court’s order. However, after a brief recess during which time the assistant State’s Attorney secured the documents, defense counsel immediately explained his objection was not that the warrant rather than the witness’ testimony constituted the “best evidence” but, rather, that any testimony as to the officer’s motivation for his subsequent action in securing the warrants was hearsay, since the officer’s state of mind was induced by information received from the informant (Starks) and thus, constituted hearsay. Defense counsel explained to the court that the “best evidence” of the officer’s motivation would be the officer’s testimony itself, except for the fact that his testimony would constitute hearsay also, and thus was inadmissible. The trial court indicated it felt counsel was “trying to have it both ways,” and concluded that the assistant State’s Attorney would be allowed to question the officer concerning the warrant and supporting affidavits. Upon returning to open court, however, the officer was not questioned concerning the content of the warrants or affidavits, but was questioned as to the fact of their existence. The warrants and supporting affidavits were later admitted into evidence, over defense counsel’s renewed objection, and the jury thus had full access to them during its deliberations.

Due to counsel’s strenuous objections and arguments concerning the admission of that evidence, and the fact that the trial court apparently misunderstood the basis for counsel’s objection, we cannot accept the State’s waiver or invited error argument, particularly since we find the basis for defense counsel’s objection to be well-taken. McCormick had the following to say about the type of testimony which the State’s initial question to the officer in the case at bar was no doubt designed to elicit:

“In criminal cases, the arresting or investigating officer will often explain his going to the scene of the crime or his interview with the defendant, or a search or seizure, by stating that he did so ‘upon information received’ and this of course will not be objectionable as hearsay, but if he becomes more specific by repeating definite complaints of a particular crime by the accused, this is so likely to be misused by the jury as evidence of the fact asserted that it should be excluded as hearsay.” McCormick, Evidence sec. 248, at 587 (2d ed. 1972).

The possibility here that the jury misused the information contained in those improperly admitted documents prevents a finding of harmless error. As pointed out by the defendant, in addition to being improperly admitted as hearsay, the documents also constituted evidence that Starks had made prior statements consistent with his in-court testimony. A well-established general rule prohibits the use of a witness’ prior consistent statement since it improperly bolsters the witness’ in-court testimony. In the absence of exceptions to the rule (i.e., to refute the contention of recent fabrication of the in-court testimony, or a motive to testify falsely), bolstering a witness’ testimony in this manner has been firmly established to amount to reversible error where the defendant has been substantially deprived of his right to a fair trial in that the error may reasonably have contributed to his conviction. (People v. Tidwell (1980), 88 Ill. App. 3d 808; People v. Hudson (1980), 86 Ill. App. 3d 335.) Although the jury acquitted Stout of the burglary and forgery charges, there is a reasonable possibility that the error contributed to the jury’s decision to convict him of theft over $150. We note the exhibits were improperly admitted for a third reason as well: because the supporting affidavits clearly implicate Stout in another crime for which he was not then being tried, namely, the burglary of the Lakemoor Village Hall.

Because of our disposition of the first and third issues raised by Stout, we find it unnecessary to consider the sentencing issue.

The judgment of the circuit court of McHenry County is reversed and the cause is remanded for a new trial.

Reversed and remanded.

SEIDENFELD, P.J., and VAN DEUSEN, J., concur.