author: JUSTICE TRAPP

text:
      In re PETITION BY THE CITY OF EAST PEORIA FOR A SPECIAL ASSESSMENT FOR “EAST PEORIA WATERWORKS IMPROVEMENT PROJECT 78—B.”—(THE CITY OF EAST PEORIA, Plaintiff-Appellee, v. BOARD OF TRUSTEES OF COMMUNITY COLLEGE DISTRICT NO. 514, Defendant-Appellant.)
    Third District
    No. 81-83
    Opinion filed March 24, 1982.
    Daniel M. Harrod, of Harrod Law Firm, P. C., of Eureka, for appellant.
    Carl F. Reardon, of Moehle, Reardon, Smith & Day, Ltd., of East Peoria, for appellee.
   JUSTICE TRAPP

delivered the opinion of the court:

The Board of Trustees of Community College District No. 514 (objector) appeals from an order confirming an assessment against it for a new water tower and necessary appurtenances. Objector argues there is a contract between it and the city which precludes any assessment for water improvements, asserts the commissioners did not comply with the statutory requirement that they report proportionate benefits for each property affected and contends its property will not be benefited to the amount assessed against it.

On September 18, 1979, the city of East Peoria filed a petition to begin steps to levy a special assessment for local improvements. Attached as exhibit A was ordinance No. 1455, which provided for a local water improvement project. Attached as exhibit B was an assessment role which listed the individual assessment against each property affected, including objector’s campus.

An objection was filed by the college board of trustees alleging that a prior ordinance and “agreement” between the college and city provided that the city would supply water services to the college in perpetuity; the “agreement” constitutes a complete bar to the authority of the city to assess the college district; and objecting to the entry of any order of confirmation of said assessment role. Attached to the objection was a copy of a resolution passed by the city council of East Peoria, Illinois, on March 4,1969, authorizing an agreement between the city and the college district providing for water service. Also attached was a copy of the “agreement” itself.

Following an amended petition revising figures in the assessment role, and other revisions in the assessment role, hearings were held on the objection by the college. On October 24, 1980, a judgment order of confirmation as to assessments levied against the college was filed stating that none of the objections filed by the objector have merit and, therefore, denying the objections. Subsequently, further revisions in the assessment role were made, none affecting the interest of the college district. The final relevant figures in the confirmed assessment role are as follows:

Assessment for Junior College District 514 $62,550.00
Assessment for public benefit $328,800.03
Assessment against all property owners $369,232.97
Total Assessment against public benefit
and all property owners $698,033.00

This appeal followed.

The initial question addressed by the parties is whether the “agreement” provides for perpetual water service so as to preclude the city from assessing the college for present improvements, and if so, whether such a perpetual contract is void thus allowing the city to make the challenged assessment. An examination of the “agreement” discloses that the “in perpetuity” claim of objector could be deemed self-limited to the proposed construction then contemplated by reason of its several references to the construction of the water system and tanks “as proposed by City”; construction to be as “set forth on the plat hereto attached and made a part hereof”; to maintain “Said water mains, water lines, # # * and elevated water tanks,” and to liability for costs of “said facilities.” Whatever the meaning of the words “in perpetuity” as used in the “agreement,” it appears that the “agreement” was limited to work defined in the specifications attached to the “agreement.” However, it does not appear that the instrument was argued in the trial court upon such language.

A city had no power to enter into a contract concerning the subject matter for a period longer than one year. Section 8 — 1—7 of the Illinois Municipal Code (Ill. Rev. Stat. 1979, ch. 24, par. 8 — 1—7) provides:

“No contract shall be made by the corporate authorities * * * and no expense shall be incurred * * * unless an appropriation has been previously made concerning that contract or expense.” Section 8 — 2—9 requires municipalities with less than 500,000 inhabitants to pass an annual appropriation ordinance in which all purposes and objects shall be specified for each amount appropriated.

In Avery v. City of Chicago (1931), 345 Ill. 640, 178 N.E. 351, our supreme court construed the statutory predecessors to these sections and held that “in the absence of an enabling statute authorizing a contract concerning the subject matter for a period longer than one year, the city of Chicago had no power to enter into such a contract imposing an obligation for five years.” (345 Ill. 640, 648, 178 N.E. 351, 354.) A party contracting with a city is presumed to know whether the city is prohibited from making a contract, and a contract in violation of a statute is void and cannot be ratified. DeKam v. City of Streator (1925), 316 Ill. 123, 146 N.E. 550.

Objector asserts this argument was not made at the trial court and cannot now be raised for the first time. However, the city’s trial memorandum in opposition to the objection contains precisely the same argument. While there is no indication the argument was made orally, the memorandum filed with the circuit court suffices to preserve the issue. We conclude the contract provides for water service to the college at regular gallonage rates in perpetuity and that such contract is void and could not be ratified.

Nonetheless, non-home-rule units of local government have only the powers granted to them by law and certain other specific powers not at issue here. (Queenwood East Sheltered Care Home, Ltd. v. Village of Morton (1981), 94 Ill. App. 3d 51, 418 N.E.2d 472; Ill. Const. 1970, art. VII, §7.) The only implied powers which a municipal corporation can possess and exercise are those which are necessarily incident to powers expressly granted. We have not been cited to, nor are we aware of, any power which would implicitly authorize this contract. To the contrary, we believe it is implicitly prohibited.

In essence, the contract attempted to bargain away the city’s right and duty to assess objector for future assessments in exchange for the college’s acceptance of a $150,000 assessment for the previous improvement. Such a contract contravenes the mandates of the special assessment commissioners to apportion the total cost of the improvement between the city and public according to respective benefits, and to apportion the total cost to the public between the parcels of land benefited, no assessment to exceed the amount of benefit. (Ill. Rev. Stat. 1979, ch. 24, par. 9 — 2—45.) If in fact the college is benefited by any specific improvement, removing it from the equation puts an impermissible burden upon other property owners. Therefore, the contract was entered into not only without implied authority, but with an implicit prohibition for such acts.

Objector argues that the commissioners did not “estimate what proportion of the total cost of such improvement will be of benefit to the public, and what proportion thereof will be of benefit to the property to be benefited,” and did not “apportion the total cost between the municipality and that property, so that each will bear its relative equitable proportion.” (Ill. Rev. Stat. 1979, ch. 24, par. 9 — 2—45.) This contention has no merit. The record is replete with assessment roles and amended roles showing how much each property was to be assessed, showing the sum of the assessments against all properties, and showing the assessments against the city. The fact that the commissioners nowhere say explicitly that each property will be benefited to the amount assessed, and that each assessment is proportionate to the total assessment costs, does not overcome the fact that the rolls do report the estimated proportionate benefit in terms of proportionate costs.

Objector also challenges the amount of the assessment because the commissioners’ only basis for the assessment of the college was a flat sum per acre. The commissioners did not consider the actual water usage of the college and could only say the college was benefited to the extent assessed. However, a per acre basis of assessment is not improper if made with regard to benefits. Ownby v. City of Mattoon (1923), 306 Ill. 552, 138 N.E. 110; City of Monticello v. LeCrone (1953), 414 Ill. 550, 111 N.E.2d 338.

The city here asserts that the protection against fire or other catastrophe was a proper benefit to be considered and assessed on a per acre basis. The city attempted to prove that the college was afforded extra fire protection by the improvement. The ordinance authorized the installation of a 750,000-gallon elevated water storage tank to improve and increase the municipal water service already provided by a 500,000-gallon water storage tank.

The city introduced the testimony of Daniel Giebelhausen, the superintendent of waterworks for East Peoria. He testified that although the existing 500,000-gallon storage tank had never been shut down for maintenance or repairs, the policy of the Waterworks Department was to shut down tanks after 8 to 12 years for complete restoration. The Department had specific plans for taking the previously existing 500,000 gallon tank out of service as soon as the new one was in service. Without the new tank, service during the shutdown of the old tank would be supplied through other means. However, the alternative means would not supply the same amount of water and water pressure to the college, and Giebelhausen did not consider the alternative means an adequate substitute for the new tower.

More specifically addressing the additional fire protection supplied by the new tower, Giebelhausen testified that the 500,000-gallon tank contained 500,000 gallons of water approximately 60% of the time. The Waterworks Department attempts to maintain a 75% to 90% capacity and accomplishes it approximately 60% of the time. The tank does get down to the 100,000-gallon level at times. The city then introduced testimony of the fire chief and assistant fire chief of East Peoria who gave the conservative estimates that it would take approximately 350,000 to 360,000 gallons of water to fight a major fire. With regard to the college campus, the fire chief testified that a major fire would be one involving a large extent of the campus and necessitating fire hydrants. He did not believe alternative methods of supplying the water suggested by objector would be effective.

The city asserts that the protection against fire or other catastrophe provided by the new water tank is a proper benefit to be considered and assessed on a per-acre basis. Objector asserts that evidence of a benefit based on future and conjectural plans is too speculative and doubtful to predicate a benefit upon. (City of East St. Louis v. Illinois Central R.R. Co. (1909), 238 Ill. 296, 87 N.E. 407.) It argues that evidence concerning any benefit from extra fire or hazard protection was too speculative, because there was no evidence the old water tank would, in fact, be taken out of service for maintenance, or that there would, in fact, be a fire at the college. It reasonably appears that a catastrophic fire at any point on the water system would affect the service to the college through depletion of the water supply.

We disagree with objector. The basic supposition that a fire may occur is not too conjectural. Increased fire protection has been held to be a proper element of benefit. (Village of Northbrook v. Steerup (1959), 16 Ill. 2d 530, 158 N.E.2d 630.) The supervisor of Waterworks for East Peoria testified that there were specific plans to take the old tank out of service for repairs. This is not too conjectural.

However, objector challenges the assessment on the further ground that the college is special-use property, but it was not assessed or appraised as special-use property. It is uncontroverted that the property of the college is restricted by statute to its particular use and cannot legally be applied to any other use. In City of Chicago v. Farwell (1918), 286 Ill. 415, 121 N.E. 795, it was pointed out that where property is restricted to a special use, value is not the framework for establishing benefit. (See also Forest Preserve District v. Lehmann Estate (1944), 388 Ill. 416, 58 N.E.2d 538.) The true measure of the benefit which an improvement will confer upon such property is the increased value for that restricted use. (Hinsdale Sanitary District v. Hinsdale Golf Club (1936), 363 Ill. 595, 2 N.E.2d 921.) In City of Chicago v. Chicago City Ry. Co. (1922), 302 Ill. 57, 134 N.E.2d 44, it was determined that an assessment for special use property was restricted to benefit for such special use, and that it was error to admit evidence framed as value before and value after the improvement. See also City of Chicago v. Chicago City Ry. Co. (1923), 309 Ill. 448, 141 N.E. 141.

Objector argues that the appraisal of Heilman, for the city, was based upon the fair market value of the property rather than as special-use property and, therefore, Heilman’s testimony is incompetent and inadmissible. (City of Chicago v. Chicago City Ry. Co. (1922), 302 Ill. 57, 134 N.E. 44.) A review of the record reveals that Heilman stated he was aware the property was special-use property, and he appraised it as such. However, he also stated that he appraised it at its fair market value, that is, its highest and best use. Therefore, it is unclear from an objective reading of the record what basis Heilman used to appraise the property. Since we are unable to make this determination, we cannot say that the evidence was inadmissible. However, neither is the evidence probative of the extent to which the college will be benefited by the improvement. Although there is other evidence of benefit to the college, there is no other evidence that the college will be benefited to the amount assessed.

Objector has also argued that the amount assessed against it was not its relative equitable proportion of the entire assessment. The only evidence introduced by objector relevant to proportionate benefit was the testimony of Richard Karnopp, a civil engineer and director of facility services at the college. He testified as to the average consumption of water per month and per day at the college. According to his figures, the average daily use equated to 3% of the $500,000 gallon water storage tank and 1% of the capacity of the old and new tank combined. However, Karnopp later testified that the water usage which he testified to did not include water used by 10 to 12 temporary campus buildings and that the table was inaccurate to that extent. Most of these temporary buildings were occupied. Since this attempt to show proportionate benefit to the college in terms of average daily water use was undermined by admittedly inaccurate figures, it has no probative value.

Although objector’s arguments fail in every other respect, since there was no proof below that the college was benefited to the extent assessed, the cause must be reversed and remanded for further proceedings not inconsistent with the views stated.

Reversed and remanded with directions.

WEBBER and LONDRIGAN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE STOUDER

license: Public Domain

text:
    GRUNDY COUNTY NATIONAL BANK, Plaintiff-Appellee, v. TERRENCE CAVANAUGH et al., Defendants-Appellants.
    Third District
    No. 81-490
    Opinion filed March 26, 1982.

      W. Richard Janikowski and Deborah J. Kottel, both of Kottel, Janikowski & Light, of Chicago, for appellants.
    Frank J. Black, of Black and Black Law Firm, of Morris, for appellee.
   JUSTICE STOUDER

delivered the opinion of the court:

Plaintiff Grundy County National Bank (hereinafter the bank) filed a complaint to foreclose a land trust mortgage against defendants Terrence Cavanaugh, Charles Button (hereinafter the beneficiaries), and Grundy County National Bank as trustee of the land trust (hereinafter the trustee). After a bench trial, the circuit court of Grundy County entered a decree of foreclosure and a contingent deficiency decree against the individual defendants.

In the spring of 1979, the beneficiaries and Gordon Schultz acquired an option to purchase certain real estate in Morris. In order to exercise their option, they borrowed $65,000 from the bank on July 30, 1979. In addition to signing a note reflecting their personal indebtedness, the beneficiaries and Schultz also on that date entered into a land trust agreement with the trustee, assigned their beneficial interest in the trust to the bank for collateral security, and directed the trustee to execute a trust deed in the bank’s favor, which the trustee did. On August 2, 1979, the beneficiaries and Schultz deeded the real estate to the trustee.

When the note was due on September 28,1979, the beneficiaries and Schultz were unable to repay the debt as they had been unable to effect the anticipated rapid sale of the property. The bank accepted a second note in lieu of payment of principal, but this was neither called nor paid on its October 8,1979, maturity date. When it was called on December 13, 1979, the beneficiaries were again unable to repay the debt. The bank offered to accept a third note, but the beneficiaries rejected its terms. Additional facts will be presented in our discussion of the five issues presented for our review.

The first issue is whether a valid trust deed existed on the real estate. The beneficiaries contend the trust deed was not valid because the trust did not exist when the instrument was executed or, in the alternative, that the trustee could not execute a trust deed for real estate in which it had no interest. Both contentions are based on the fact that the property was deeded to the trustee three days after the other instruments were executed.

We have no quarrel with the doctrines which underpin the beneficiaries’ position and in another context might well consider them dispositive. Two facts must here be noted. The first is that the beneficiaries, with full knowledge that the trust was unfunded, expressly and in writing directed the trustee to execute the trust deed. The bank explained the transactions took place as they did in order to allow the beneficiaries the funds necessary to exercise their option and purchase the trust res. The second fact is that the beneficiaries themselves deeded the parcel to the trustee three days after the other documents were executed. Thus both the trust deed execution and late funding were directly attributable to the actions and desires of the beneficiaries. The general rule is that a beneficiary of a trust who consents to or approves of an act, omission, or transaction by a trustee, may, upon the ground of waiver or estoppel, be precluded from subsequently objecting to the impropriety of such act, omission, or transaction. (See 76 Am. Jur. 2d Trusts §336 (1975).) The rule may arise from acquiescence, request, participation (see 76 Am. Jur. 2d Trusts §340 (1975)) or notification (see 76 Am. Jur. 2d Trusts §341 (1975)). We find the transactions here attacked to fall squarely within the general rule, and that the beneficiaries are estopped from challenging the trust or trust deed.

The second issue presented for our review is whether the trial court erred in foreclosing the trust deed. The beneficiaries advance three grounds for a finding of such error.

The first ground is that the trustee was not served and did not appear in the foreclosure proceeding. The trust agreement provides that “[t]he sole duty of the Trustee with reference to any such legal proceeding shall be to give timely notice thereof to the beneficiaries * 9 so its failure to appear was understandable and anticipated. The reason a land trustee is a necessary party to proceedings of this nature is to assure such notice. While the better practice would have been to serve the trustee, the beneficiaries herein were notified of the proceeding by service upon them individually. They additionally agreed to the trial of this cause without such service. Under these circumstances, they are estopped from chailenging the court’s decree on this ground. In any event the nonjoinder of a proper party in a mortgage foreclosure will not vitiate the whole judgment. At most it leaves his rights unaffected. Bigoness v. Hibbard (1915), 267 Ill. 301, 108 N.E. 294.

The second ground is the alleged failure of the bank to establish a prima facie case. This ground is based on the fact that the trust deed refers to a one-year note as its underlying indebtedness, while the two notes the beneficiaries signed were payable on demand or, respectively, in 60 and 10 days. In isolation, this appears to be a material variance, but a review of the documentation of this transaction clearly indicates that the trust deed secured the debt in question. Additionally, the beneficiaries do not allege the existence of any other debt. Under these circumstances, we find no failure to establish a prima facie case.

The third ground is that the trust deed was allegedly not valid security for the second note. This ground is based on the fact that, as compared with the original note, it had a different interest rate; an extension of time of payment; and one less debtor. The beneficiaries argue that as the trustee executed the trust deed to secure a debt of third parties, it was a surety. As such, the beneficiaries contend the above three facts operated to discharge the trustee from liability. We recognize that any agreement between a creditor and a principal in an obligation or debt which essentially varies the terms of the contract without the consent of the surety will release the surety from liability (Burt v. McFadden (1871), 58 Ill. 479); however, the beneficiaries presented no evidence showing such a lack of consent. Therefore, no discharge occurred. As we find no merit in the beneficiaries’ three grounds of error, we find the trial court properly foreclosed the trust deed.

The third issue is whether the court erred in allowing a deficiency judgment against the beneficiaries. The basis of the beneficiaries’ contention that no such judgment should have issued is that the trust deed was extinguished, when the second note was executed. While we have previously found that the trust deed secured the second note and was not extinguished, this is not determinative of the issue. The beneficiaries overlook the fact that the express terms of that instrument absolve them of personal liability. While we might consider this argument waived, we merely note that the collateral assignment contains no such language. The deficiency judgment therefore properly issues from its foreclosure. We note that the question of whether the assignment is a conveyance in the nature of a mortgage (see Ill. Rev. Stat. 1979, ch. 95, par. 23) has not been raised in these proceedings.

The fourth issue is whether the court erred in reforming the second note to include a 5% service charge. Such a charge was included in the first note, although the beneficiaries claimed it was added after they signed the instrument. Rather than include the charge in the second note, the bank billed the beneficiaries for the amount due. The question of whether the bank has an adequate remedy at law has not been raised.

Equity will not lend its aid to reform a written instrument in the absence of fraud, accident, or mutual mistake, sufficiently alleged and clearly proved. (Darst v. Lang (1937), 367 Ill. 119, 10 N.E.2d 659.) In the case at bar, the bank elected the alternative of billing the amount of the charge, along with the accrued interest on the first note, rather than adding these amounts to the principal of the second note. Finding no fraud, accident, or mutual mistake in this election, we hold that the court erred in reforming the note. We therefore remand this cause for a determination of the adjusted amount of the judgment. The bank has also requested remandment for an adjustment of the court’s award of attorney fees to reflect the fees stemming from this appeal. As the parties’ agreement sanctions all fees and costs of collection, we direct the court to appropriately adjust its award.

The final issue presented concerns the period of redemption established by the trial court. However, since an appeal was taken from the foreclosure decree and since remandment is required in accord with our previous observations, we believe no useful purpose would be served by considering this issue in this opinion. The period of redemption will of course depend upon the mortgage decree becoming final and the sale taking place pursuant thereto.

For the foregoing reasons the judgment of the circuit court of Grundy County is reversed and remanded for further proceedings consistent with the views expressed herein.

Judgment reversed and remanded.

ALLOY and HEIPLE, JJ., concur.


author: PRESIDING JUSTICE SCOTT

text:
    PEORIA HARBOR MARINA, Plaintiff-Appellee, v. WILMA PAULINE McGLASSON, Defendant-Appellant.
    Third District
    No. 81-371
    Opinion filed March 25, 1982.

      Elliott B. Young, of Peoria, for appellant.
    Mark G. Zellmer, of Peoria, for appellee.
   PRESIDING JUSTICE SCOTT

delivered the opinion of the court:

On July 10, 1979, the plaintiff, Peoria Harbor Marina, filed a complaint against the defendant, Wilma Pauline McGlasson, in the circuit court of Peoria County. The plaintiff sought judgment on a promissory note signed by the defendant for the principal amount of $20,695, with interest thereon at %% per annum since September 4, 1978. Following a bench trial, the plaintiff was awarded $7,607.64 plus costs of suit on May 29,1981. The defendant appeals.

The trial consisted of testimony by the four persons present when the agreement for the sale and purchase of a boat was executed. These witnesses were the defendant, the defendant’s son, Larry Teel, the plaintiff’s vice-president, Lou Paulsen, and the plaintiff’s salesman, Walter Herncjar. Based on their testimony, a summary of the facts can be made.

Larry Teel wanted to buy a 28-foot Chris Craft Cruiser from the plaintiff, but due to divorce proceedings, his credit standing was poor.

His mother agreed to purchase the boat in her name, on her credit, and Teel would pay her. With this objective in mind, the defendant and Teel met with Paulsen and Herncjar at the marina on September 4, 1978.

During this meeting the parties agreed to a price of $19,900 for the boat, plus a sales tax of $995. Included in the sale price was a 50/50 warranty for 30 days, which meant that the seller and buyer would share equally the cost of repair on problems discovered within 30 days after the sale. The slip rental (dock space) and winter storage until April 1, 1979, would be provided by the plaintiff free of charge. A $200 deposit was made, leaving a balance due of $20,695.

These oral terms were written on a blank form which appeared to be a bill of sale, and upon which the plaintiff’s letterhead appeared at the top. Lou Paulsen signed his name and the date. The paper contained a description of the item sold, the warranty, storage and slip rental, sales tax, deposit and balance due. The defendant signed the paper. However, the defendant testified that at the time she signed the paper, she did not think it was a bill of sale.

According to the defendant and her son, there was one other term agreed upon which was not written on the sales slip. They testified that the agreement to purchase the boat was contingent upon the defendant securing a loan. If she could not obtain financing, there was to be no contract. However, when questioned as to the specifics of this alleged condition, such as what would be an acceptable interest rate, the defendant stated there were none. She claimed that she had 30 days to get a loan, or there was no agreement. In other words, according to the defendant, she had carte blanche as to what financing she would or would not accept.

The plaintiff’s vice-president and salesman contradicted this testimony by stating there was no condition to the contract. They claimed that the defendant did not have a sufficient down payment to secure a retail installment contract through the plaintiff’s bank, but that she would secure her own financing. They stated further that the defendant said she would get a loan by giving a second mortgage on her house.

There was contradictory testimony as to whether the defendant signed the promissory note; however, this question was not presented as an issue in this appeal and will not be considered.

The note was payable 30 days after September 4,1978. The principal amount due was $20,695, with interest at 8% per annum.

After the papers were signed by the defendant and retained by the plaintiff, the only set of keys to the boat was given to the defendant’s son. The defendant and Teel went out on the boat that day. From September 4, 1978, until the boat was stored for the winter, sometime in mid-November 1978, Larry Teel used the boat exclusively on a weekly basis. He stated he used it one to two times a week, while Herne jar and Paulsen claimed he used it three to four times a week. Teel brought friends on the boat and had personal belongings on board. The defendant went on the boat a couple of times after September 4,1978.

The defendant tried to get financing at three banks, but she was refused because her income was not sufficient to make the monthly payments. Paulsen tried to get financing for Teel, but when that failed, he arranged for a loan application for the defendant with the First National Bank of Chillicothe, where the plaintiff had done business. The bank also rejected the loan on December 12, 1978. In a stipulation filed by the defendant, a bank vice-president stated with some uncertainty that she had not told the defendant of the rejection when the defendant called and informed the bank she did not want to pursue a loan. The defendant and Teel informed the plaintiff, through Paulsen, that no financing was available. They considered the matter closed.

In February 1979 Larry Teel removed some of his belongings from the boat. The boat was taken out of storage in the spring, and Paulsen tried to contact the defendant and Teel but could not reach them. Paulsen then sold the business. On May 6,1979, Larry Teel went to the marina and delivered a check for $306 and received a receipt in return. Apparently the slip rental and winter storage until April 1,1979, would have cost $506 had the plaintiff not provided it free of charge in the contract for sale. The defendant was no longer operating under the terms of the contract, however, and attempted to pay the rental and storage fee as though she and her son had only rented, and not purchased, the boat. The $306 would be the balance due if the $200 deposit made by the defendant on September 4, 1978, were deducted. The check was never presented for payment because the plaintiff was still operating under the terms of the contract.

The boat was placed on the market for resale in June or July 1979 by the plaintiff. On October 1, 1979, the defendant was sent notice that the boat would be sold on October 8, 1979. The defendant did nothing. The boat was then sold on September 8,1980, according to the date on a bill of sale. The evidence on when the boat was actually resold is contradictory. The transcript from the trial and the briefs of the parties refer to the date of resale as October 8, 1979. However, the bill of sale given to the resale buyer bears the date September 8, 1980. The trial judge used the date of September 8, 1980, as the date of resale when he calculated the interest due on the deficiency amount of damages. The resale price for the boat was $15,010, plus $790 commission.

On May 27, 1981, the trial court found there was a contract for the sale of the boat with no condition that financing be obtained before the parties were obligated to perform. In awarding damages to the plaintiff, the trial judge apparently relied on the provisions of section 2 — 706 of the Uniform Commercial Code (UCC) (Ill. Rev. Stat. 1979, ch. 26, par. 2 — 706), although he made no specific references to that section of the Code. The relevant provisions of the UCC, section 2 — 706, provide as follows:

“(1) Under the conditions stated in Section 2 — 703 on seller’s remedies, the seller may resell the goods concerned or the undelivered balance thereof. Where the resale is made in good faith and in a commercially reasonable manner the seller may recover the difference between the resale price and the contract price together with any incidental damages allowed under the provisions of this Article (Section 2 — 710), but less expenses saved in consequence of the buyer’s breach.
(2) Except as otherwise provided in subsection (3) or unless otherwise agreed resale may be at public or private sale including sale by way of one or more contracts to sell or of identification to an existing contract of the seller. ° ” e
(3) Where the resale is at private sale the seller must give the buyer reasonable notification of his intention to resell.”

In the case at bar, the trial judge calculated the damages by adding the interest on the note to the principal, amounting to $22,356, and deducting the resale price from that amount, leaving $7,346 due and owing. The trial judge then added $261.64, an amount determined by calculating the legal rate of interest (5%) on the resale deficiency ($7,346) from the date of resale until May 26,1981. (Ill. Rev. Stat. 1979, ch. 74, par. 2.) A judgment against the defendant in the amount of $7,607.64, plus costs of suit, was entered on May 29, 1981.

The parties raise several issues on appeal. First, it is necessary to determine whether this case is within the scope of article 2 of the Uniform Commercial Code (Ill. Rev. Stat. 1979, ch. 26, pars. 2 — 101 etseq.). We hold that it does come within article 2. There was a “transaction in goods” under section 2 — 102 (Ill. Rev. Stat. 1979, ch. 26, par. 2 — 102). In line with decisions in other jurisdictions, a boat is considered “goods” under section 2 — 105(1). (Ill. Rev. Stat. 1979, ch. 26, par. 2 — 105(1); Richwagen v. Lilienthal (Fla. App. 1980), 386 So. 2d 247; Puamier v. Barge BT 1793 (E.D. Va. 1974), 395 F. Supp. 1019.) The plaintiff regularly sells boats; therefore, he is a merchant “who deals in goods of the kind” pursuant to section 2 — 104(1). Ill. Rev. Stat. 1979, ch. 26, par. 2 — 104(1).

Having determined that the UCC governs in this case, we must decide whether the parties were bound by a contract. Whether a contract exists, its terms and the intent of the parties, are questions of fact to be determined by the trier of fact. A reviewing court may not reverse the judgment of a trial court merely because different conclusions could be drawn. (General Grocer Co. v. Bachar (1977), 51 Ill. App. 3d 907, 365 N.E.2d 1106.) The findings of the trial court will not be disturbed on appeal unless they are clearly contrary to the manifest weight of the evidence. Docas v. G. A. D., Inc. (1980), 84 Ill. App. 3d 883, 406 N.E.2d 75.

A contract for sale includes a present sale of goods, which means that a sale has been accomplished by the making of the contract. A sale consists in the passing of title from the seller to the buyer for a price. (Ill. Rev. Stat. 1979, ch. 26, par. 2 — 106(1).) Where delivery is to be made without moving the goods and no documents of title are to be delivered, title passes at the time and place of contracting. Ill. Rev. Stat. 1979, ch. 26, par. 2-401(3) (b).

The trial court found that there was a present sale under section 2 — 106(1) in the instant case, and the evidence supports that finding. The parties entered into a contract wherein the title passed from the plaintiff-seller to the defendant-buyer for a price. There was consideration to support the contract in that the defendant was receiving a boat in exchange for a promissory note and the plaintiff was receiving the note as payment for the boat. (Ruskin v. Rodgers (1979), 79 Ill. App. 3d 941, 399 N.E.2d 623; Burris v. Itek Corp. (1977), 46 Ill. App. 3d 350, 360 N.E.2d 1168.) Since the boat was in the marina where it would be docked after sale, there was no need to physically deliver it. Delivery was accomplished by giving the only set of keys and exclusive possession to the defendant’s son. Nor were there any documents of title to be delivered. Therefore, title to the boat passed to the defendant at the time and place of contracting. (Ill. Rev. Stat. 1979, ch. 26, par. 2 — 401 (3)(b).) A contract for sale was made.

The defendant contends that title had not passed to her because the plaintiff did not surrender to the Department of Conservation the certificate of number. (Ill. Rev. Stat. 1979, ch. 95%, par. 313 — 4.) On the date of sale, the defendant filled out a certificate of number and paid the plaintiff the $4 transfer fee. The defendant claims that this certificate is a document of title. We do not agree based on the recent addition by the legislature of sections 3A — 1 through 3A — 22 of article IIIA of the Boat Registration and Safety Act (Ill. Rev. Stat., 1980 Supp., ch. 95%, pars. 313A — 1 through 313A — 22), concerning title. These sections, effective January 1, 1981, set out the various laws pertaining to the certificate of title required under section 3A — 1 of article IIIA of the Boat Registration and Safety Act (Ill. Rev. Stat., 1980 Supp., ch. 95%, par. 313A- — 1). That section provides:

“§3A — 1. Certificate of title required, (a) Every owner of a motorboat, and sailboat over 12 feet in length, required to be numbered by this State and for which no certificate of title has been issued by the Department of Conservation shall make application to the Department of Conservation for a certificate of title either before or at the same time he next applies for issuance, transfer or renewal of a certificate of number.”

When the present parties entered into the contract of sale in September 1978 there was no provision in the Boat Registration and Safety Act specifically providing for title to a boat. There was only the requirement of a certificate of number. From the additions made to the Boat Registration and Safety Act concerning title, it can be inferred that a certificate of number was not a document of title. If it were a document of title, the legislature would have had no need to add another provision on title. Nor was the new law a substitute for a certificate of number, as the law on certificates remained. Therefore, the certificate of number was not a document of title.

The defendant raises one other point in support of her claim that there was no sale. She argues that since the plaintiff did not pay the sales tax on the boat to the Illinois Department of Revenue, the plaintiff did not consider there was a final sale. Whether the plaintiff paid the sales tax is a collateral matter which will not be taken up by this court.

Since the contract for sale was for the sale of goods for a price of $500 or more, the Statute of Frauds must be complied with, or the contract is not enforceable. (Ill. Rev. Stat. 1979, ch. 26, par. 2 — 201.) In order to satisfy this statute there must be a writing sufficient to indicate that a contract for sale was made and signed by the party against whom enforcement is sought. The bill of sale contained a description of the boat by the listing of one serial number. The memorandum also stated the other terms agreed upon by the parties: 50/50 warranty and slip rental and storage. The defendant signed the memorandum. There was a date present, and the plaintiff’s vice-president also signed. The bill of sale was sufficient to satisfy the Statute of Frauds. Ill. Rev. Stat. 1979, ch. 26, par. 2 — 201(1); Franklin Grain & Supply Co. v. Ingram (1976), 44 Ill. App. 3d 740, 358 N.E.2d 922.

The defendant alleges that there was another term or condition agreed to by the parties which was not written into the memorandum. She claims that if she could not obtain financing, she was not bound to perform under the contract. The defendant incorrectly argues that there was a condition subsequent to the contract. If there existed a term requiring the defendant to secure a loan before she was obligated to perform, it would have been a condition precedent. A condition precedent is one which must be performed before a contract becomes effective or which is to be performed by the one party to an existing contract before the other party is obligated. Docas v. G. A. D., Inc. (1980), 84 Ill. App. 3d 883, 406 N.E.2d 75.

The question of a condition precedent not written into the final agreement brings us to the parol evidence rule as found in section 2 — 202 of the UCC (Ill. Rev. Stat. 1979, ch. 26, par. 2 — 202). This section provides that a writing intended by the parties as a final expression of their agreement may not be contradicted by evidence of any prior agreement or contemporaneous oral agreement. However, the writing may be explained or supplemented by evidence of consistent additional terms, unless the court makes the determination that the writing was intended also as a complete and exclusive statement of their terms. It is the trial court that decides whether the writing was to be the final expression of the parties’ agreement. If the trial court decides thát it was, contradictory parol evidence should be precluded. Luria Brothers & Co. v. Pielet Brothers Scrap Iron & Metal, Inc. (7th Cir. 1979), 600 F.2d 103.

In the instant case the trial court admitted parol evidence on the issue of whether a condition precedent existed. Apparently, the trial court thought the writing was not the final expression of the parties’ agreement. After hearing the testimony of the people involved and examining the exhibits, it found that there was no condition precedent to secure financing.

The trial court’s determination that no condition precedent existed will not be disturbed on appeal unless contrary to the law or against the manifest weight of the evidence. The fact that there were no details or requirements to obtain financing placed upon the defendant and that all other terms discussed between the parties were written on the bill of sale supports the trial judge’s finding.

The trial court determined that since no condition precedent existed, the defendant was bound by the contract she made. The defendant had a legal obligation to pay on the note, but she did not perform. The defendant accepted the boat and then, a few months later, she wrongfully revoked acceptance. (Ill. Rev. Stat. 1979, ch. 26, par. 2 — 703.) She never paid the note and hence breached the contract.

When a buyer wrongfully revokes acceptance, the seller may resell the “goods” at a private sale. He must give the buyer reasonable notification of his intention to resell. After resale the seller may sue for damages which are determined by the difference between the resale and the contract price. The seller may also recover any incidental damages less expenses saved in consequence of the buyer’s breach. Ill. Rev. Stat. 1979, ch. 26, par. 2 — 706.

The plaintiff did resell the boat, and did the same in good faith and in a commercially reasonable manner. Ill. Rev. Stat. 1979, ch. 26, par. 2 — 706.

Damages were determined by adding the interest of 8% per annum to the principal sum on the note of $20,695. The trial court allowed one year of interest in the amount of $1,656, calculated from the date of the note to the date of notice of resale. By the notice of resale, the plaintiff showed its intention to proceed under the UCC-Sales’ remedies so that interest only accrued to that time. The trial court then subtracted the resale price of $15,010, leaving a balance of $7,346 due the plaintiff. The plaintiff was entitled to interest on this deficiency amount under section 2 of the Interest Act (Ill. Rev. Stat. 1979, ch. 74, par. 2). (Servbest Foods, Inc v. Emessee Industries, Inc. (1980), 82 Ill. App. 3d 662, 403 N.E.2d 1.) This amount came to $261.64 assessed for the period between date of resale and May 26,1981, when the trial court accepted the plaintiff’s response to the defendant’s brief of the law and facts. A judgment against the defendant for $7,607.64, plus costs of suit, was entered May 29,1981.

The actual resale price of the boat was $15,800, but $790 was a commission paid to Wharf Harbor Marina, which sold the boat for the plaintiff. The commission is not counted as part of the resale amount because it is considered incidental damages under section 2 — 710. (Ill. Rev. Stat. 1979, ch. 26, par. 2 — 710.) The defendant is liable for the commission.

Finally, the defendant raised the issue that the plaintiff’s complaint stated a cause of action on the note, while the evidence at trial and the judgment reflected an action under the UCC. A trial court has the right to render findings on the issues which have been formed by the record of the trial, even if they were not formally raised in the pleadings. An objection that an issue was not raised in the pleadings may be waived by the conduct of the parties at trial. Schwarzbach v. City of Highland Park (1980), 82 Ill. App. 3d 807, 403 N.E.2d 102.

During the trial the defendant objected on one occasion that the UCC did not apply in the case. However, the defendant did not object on the ground that the UCC was not properly pleaded. Testimony concerning the resale and remedy under the UCC was admitted. Indeed, the defendant’s affirmative defense raised the issue of an improper sale. The defendant’s brief of law and facts rely on the UCC. The trial court properly determined damages in accordance with proof at trial.

Based on the foregoing reasons, the judgment of the circuit court of Peoria County is affirmed.

Affirmed.

BARRY and HEIPLE, JJ., concur.


author: JUSTICE ALLOY

text:
    LEROY BLATZ et al., Plaintiffs-Appellants, v. THE CITY OF ROCK FALLS, Defendant-Appellee.
    Third District
    No. 81-521
    Opinion filed March 29, 1982.
    Alexander L. Haglund, of Haglund and Gretler, of Sterling, for appellants.
    Richard A. Palmer, of Ward, Ward, Murray, Pace & Johnson, of Sterling, for appellee.
   JUSTICE ALLOY

delivered the opinion of the court:

Plaintiffs LeRoy and Mary Ann Blatz appeal from the dismissal of their two count complaint by the circuit court. The defendant City of Rock Falls had filed a section 48 motion to dismiss, based upon an alleged satisfaction and release of the claim. The circuit court agreed that the claim had been satisfied and released, and it dismissed the action. From the dismissal, the plaintiffs appeal. They argue (1) that they are not barred from pursuing their action by reason of their insurer-subrogee’s settlement with the defendant, and (2) that action by LeRoy Blatz did not bind his wife, co-tenant Mary Ann Blatz.

The facts are undisputed and at the motion to dismiss plaintiffs’ factual allegations will be taken as true. The Blatzes owned real estate, for rental purposes, in joint tenancy in the City of Rock Falls. On January 21, 1977, city employees were thawing frozen water pipes at the property through the use of an electric welder. Their actions with the welder resulted in a fire at the residence, damaging, but not destroying the property. At the time of the occurrence, the Blatzes had the property insured with Economy Fire and Casualty Company, in a total amount of $12,000. On March 14,1977, LeRoy Blatz filed a “Proof of Loss” form with Economy, in which he stated his losses and damage as $7,074.93 (for repair of fire damage) and $760 (for lost rent), totaling $7,834.93. He claimed that amount under his policy with Economy. Checks were issued by Economy covering the stated damages, as set forth in the “Proof of Loss.” The checks were made payable to LeRoy and Mary Ann Blatz. LeRoy Blatz also signed a “Receipt for Payment” provision on the “Proof of Loss” form, acknowledging receipt of $7,834.93 from Economy “in full satisfaction and indemnity for all claims upon said company on account of said loss and damage.”

After this settlement between Blatz and Economy, Economy, as subrogee, asserted its subrogation claim for the full amount it had paid, $7,834.93, against the City of Rock Falls’ insurance carrier, Hartford Insurance Company. Hartford honored the claim, issuing a draft in the full amount claimed, payable to Economy as subrogee of LeRoy Blatz, in full settlement of the claim.

Thereafter, LeRoy and Mary Ann Blatz filed a two-count complaint against the City of Rock Falls, alleging trespass and negligence, based upon the city employees’ actions on January 21, 1977, in starting a fire at their rental residence. The complaint alleged that the property was damaged and that the damages totaled $15,000.

The City of Rock Falls responded with their section 48 motion to dismiss (Ill. Rev. Stat. 1979, ch. 110, par. 48), setting forth the previous settlements between the Blatzes and Economy as well as the settlement between Economy and Hartford, on behalf of the city. The city asserted that Economy’s settlement of the claim with Hartford was a settlement and release of the claim and that it barred the Blatzes’ complaint against the City of Rock Falls. The circuit court agreed, dismissing the complaint, on the basis of prior settlement and release. We reverse and remand.

So far as the record at this stage indicates, the Blatzes have never settled their claims against the City of Rock Falls. They settled their claims with Economy, their insurer, arising under their contract of insurance. They acknowledged full satisfaction for all claims against Economy, not anyone else, when they received payment of $7,834.93. By virtue of that payment and settlement, Economy became subrogated to the rights of the Blatzes with respect to the claim, up to the amount of their payment to them. (Central National Bank & Trust Co. v. Central Illinois Light Co. (1965), 65 Ill. App. 2d 287, 294, 212 N.E.2d 489.) As the court indicated, such subrogation arises independent of contract, by operation of law. However, to the extent that any damages resulted beyond those paid for by Economy, the Blatzes retained an interest in the claim against the City of Rock Falls. (Smith v. General Paving Co. (1974), 24 Ill. App. 3d 858, 863, 321 N.E.2d 689; Shaw v. Close (1968), 92 Ill. App. 2d 1, 4-5, 235 N.E.2d 830.) It is important to note that the record does not indicate that the Blatzes assigned all their rights and interests with respect to their claims to their insurer, Economy. No such assignment, either under the provisions of the insurance contract, or by separate agreement, is found in the record. Therefore, to the extent they can show damages above that paid for by their insurer to them, they retain an interest in the claim against the City of Rock Falls. Their complaint alleges damages significantly in excess of the $7,834.93 Economy paid them, in that damages totaling $15,000 are stated.

The situation, as it stood after Economy’s payment to the Blatzes, was that Economy, as insurer-subrogee, had a claim against the City of Rock Falls based upon the property damage to the Blatz residence caused by the city employees. Economy’s subrogation claim, however, was limited to the amount it had paid to the Blatzes. The Blatzes, to the extent that they sustained damage above that paid by their own insurer, also retained an interest in their claim against the City of Rock Falls. In such situations, there are two claimants against an alleged tortfeasor, each asserting a claim based upon the same cause of action, herein the property damage resulting from the city employees’ actions. (Geneva Construction Co. v. Martin Transfer & Storage Co. (1953), 351 Ill. App. 289, 300-01, 114 N.E.2d 906, aff'd (1954), 4 Ill. 2d 273.) The subrogee may bring an action, in its name or for its use, providing it sets forth in pleading the basis for the subrogation. (Ill. Rev. Stat. 1979, ch. 110, par. 22(3).) Similarly, the insured-subrogor, to the extent he has not been compensated for damages by his insurer, may bring an action to recover the damages sustained. Smith v. General Paving Co. (1974), 24 Ill. App. 3d 858; Shaw v. Close (1968), 92 Ill. App. 2d 1.

In the instant case, Economy settled its claim, based upon subrogation, prior to suit. It settled for $7,834.93, the amount it had paid to the Blatzes, and released its claim against the City of Rock Falls. Its claim, however, as has been noted, was not the full claim of the Blazes arising from the actions of the city employees. Rather, its claim was only to the extent it had reimbursed the Blatzes for the damages. It had received no assignment of the full claims of the Blatzes arising from the occurrence. Economy could not settle and compromise claims that it did not possess.

The defendant Rock Falls does not quarrel with this reasoning. Rather it asserts that Economy had fully satisfied all of the Blatzes’ damage claims by its payment of $7,834.93. Therefore, it argues, it had received a full assignment of the property damage claim and could, therefore, settle the claim in its entirety. The problem with this argument is not its legal foundation, but rather its factual basis in the record. At this stage of the case, the court is confronted with a verified complaint stating that damages incurred by the Blatzes amounted to $15,000. This amount is clearly in excess of the amount the Blatzes received from Economy, which was $7,834.93. Rock Falls points to the “Proof of Loss” filed by LeRoy Blatz with Economy, wherein he stated that his damages resulting from the fire amounted to $7,834.93. What we are confronted with, then, is a factual question as to the extent of damages, which had a distinct bearing upon the plaintiffs’ rights to maintain their action. The factual dispute cannot be resolved without further proceedings.

In summary, the circuit court should not have dismissed the action of the Blatzes, based upon Economy’s settlement of its subrogated claim, where there was a factual dispute as to the amount of damage suffered, and where the Blatzes alleged damages above the amount paid to them by their insurer. If, after final factual determination in the cause, it is clearly shown that the total damages sustained were $7,834.93, or less, then the defendant City of Rock Falls would be entitled to have the action dismissed, based upon the prior settlement. They may also have a claim under section 41 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 41). If, after factual development, sufficient evidence is presented to show liability and raise a question as to damages beyond that paid by Economy, then the issue will be resolved by the jury or fact finder. As plaintiffs concede, if the eventual judgment would exceed $7,834.93, defendant City of Rock Falls would be entitled to a setoff in the amount of $7,834.93, as against any judgment award.

Some final comment is required on the defense contention that our reversal herein will undermine settlements and encourage litigation. We would note that the result in this case could easily have been avoided. Had Economy obtained an assignment of the Blatzes’ entire property damage claim against Rock Falls, it could then have settled the entire claim. Had Hartford insisted that the Blatzes also execute the release and settlement, along with Economy, they would have protected themselves against this action. The insurers could easily have protected themselves.

The circuit court action in dismissing plaintiffs’ complaint is reversed, and the case is remanded with directions to proceed in accordance with the views expressed in this opinion.

Reversed and remanded, with directions.

BARRY, P. J., and SCOTT, J., concur.


author: JUSTICE HEIPLE

text:
    JOYCE EVANS, Plaintiff-Appellee, v. STEPHEN W. JORDAN, Defendant-Appellant.
    Third District
    No. 81-532
    Opinion filed March 30, 1982.
    Jack C. Vieley, of Peoria, for appellant.
    James Janovetz, of Peoria, for appellee.
   JUSTICE HEIPLE

delivered the opinion of the court:

On September 29, 1970, Joyce Evans, an unmarried but pregnant woman, filed a paternity complaint against Stephen W. Jordan pursuant to the Paternity Act (Ill. Rev. Stat. 1969, ch. 106 3/4, par. 51 et seq.). Defendant’s arrest was sought, and he was, in fact, arrested on October 7, 1970, and subsequently released on a $500 personal recognizance. Later, on December 10, 1970, a baby daughter, Kilo Marie Evans, was born to Joyce Evans.

Nothing substantial transpired in the case until April 27, 1976, when the trial court dismissed the proceedings for want of prosecution. No appeal was taken and the suit was not refiled within one year as authorized by section 24 of the Limitations Act (Ill. Rev. Stat. 1975, ch. 83, par. 24a).

The applicable statute of limitations provides in part:

* * [if] the action is dismissed for want of prosecution then, 000 the plaintiff * * * may commence a new action within one year or within the remaining period of limitation, whichever is greater, after such judgment is reversed or given against the plaintiff, or after the plaintiff is nonsuited or the action is dismissed for want of prosecution.” Ill. Rev. Stat. 1975, ch. 83, par. 24a.

Then, on May 12,1980, which is more than four years after dismissal of the first paternity suit for want of prosecution, plaintiff refiled the same paternity suit. It was founded on the same facts and cause of action as the previous suit. Jordan filed a motion to dismiss pursuant to section 48 of the Civil Practice Act which was denied by the trial court. He appeals.

The applicable Paternity Act provides that:

“No such [paternity] action may be brought after the expiration of 2 years from the birth of the child. However, where the person accused has acknowledged the paternity of the child by a written statement made under oath or affirmation or has acknowledged the paternity of such child in open court, prosecution may be brought at any time within 2 years from the last time such acknowledgment was made or within 2 years from the last time the person accused contributed to the support, maintenance, education and welfare of the child subsequent to such acknowledgment.” Ill. Rev. Stat. 1969, ch. 106 3/4, par. 54.

We believe it clear from these statutory provisions that Jordan’s motion for dismissal should have been granted. The statute of limitations on paternity actions expires two years after the birth of the child. An extension of time is provided where an acknowledgment of paternity is made in open court or under oath. The statute is further extended for two years from the last time the person accused contributed to the support of the child where the support is subsequent to such formal acknowledgment.

The verified complaint in the second paternity suit attempts to avoid the strict language of the statute of limitations in order to secure an extension of time. The complaint does not set up either an acknowledgment under oath or an in-court admission by defendant. It asserts, rather, that defendant made contributions to the support of the child within two years of the bringing of the second suit. It further asserts that these contributions followed a course of conduct by the defendant and acknowledgments to third parties which estop the defendant from raising a limitations defense. We disagree.

If estoppel were to be given credence in this situation so as to obviate the requirements of the statute, the statute itself would be totally undone. This would be improper. The statute as it stands is liberally drafted to extend the time within which the mother may bring an action against a putative father. She may bring the action within two years of the birth, within two years of the formal acknowledgment, or within two years of the cessation of support payments which are linked with the prior formal acknowledgment. To further engraft on this liberal extension of the statute of limitations an estoppel theory of extension would not only deny the clear meaning and intention of the statute, but would defeat the public interest in having some certainty and finality to litigation. It would further deny the defendant and putative father’s right to equal protection of the law and procedural due process.

Plaintiff claims that her rights and the rights of the minor child are not being protected and served. This is a hollow claim. All litigants, whether plaintiff or defendant, are entitled to due process of law. Any litigant, however, may forfeit his right to a legal resolution of a dispute by inactivity and inattention and by failure to comply with the requirements of the law. That is precisely the course of action followed by the plaintiff in this case.

This is a stale claim. Since plaintiff did not refile her paternity suit within the one-year time provision, the rules of our supreme court provide that the dismissal order in the first suit operates as an adjudication on the merits. (58 Ill. 2d R. 273.) When suit was not refiled within one year of its dismissal for want of prosecution at a time when the original two-year statute of limitations had run, the cause of action was procedurally finished.

For the reasons stated, we reverse the order of the Peoria County circuit court. We further dismiss said cause with prejudice.

Reversed and dismissed.

SCOTT and STOUDER, JJ., concur.


author: PRESIDING JUSTICE SCOTT JUSTICE HEIPLE,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. HELBERT HUGHES, Defendant-Appellant.
    Third District
    No. 81-404
    Opinion filed March 31, 1982.

      HEIPLE, J., specially concurring.
    Robert Agostinelli and Peter A. Carusona, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    John A. Barra, State’s Attorney, of Peoria (John X. Breslin and Terry A. Mertel, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   PRESIDING JUSTICE SCOTT

delivered the opinion of the court:

This appeal is brought by the defendant, Helbert Hughes, from his conviction following a jury trial in Peoria County of the unlawful possession of less than 30 grams of a controlled substance, a Class 4 felony. (Ill. Rev. Stat. 1979, ch. 56 1/2, par. 1402(b).) The defendant was sentenced to two years’ probation.

Prior to trial, the defendant filed a motion to suppress two grams of cocaine found in small cardboard packages contained within his wallet. At the hearing held on the defendant’s motion, the following facts were established by stipulation. On December 22, 1980, the defendant was lawfully arrested by Officer Norman Green on outstanding warrants in Livingston County and was brought to the Peoria Police Department where his personal property, including his wallet, was taken. The defendant’s wallet was opened and its contents, including two small white cardboard packages, were removed. Each package had a picture of a seal with the name “sno seals” on the cover. The record indicates that Officer Green assumed that the packages contained prophylactics. The defendant’s personal belongings were then placed in a paper bag and the bag was placed in an unlocked security locker. Later in the day the defendant was transported to the county jail, but his belongings remained in the locker at the police station. The following morning Officer Green realized his error and transported the bag containing the defendant’s belongings to the county jail.

County jailer Depperman asked Officer Green to empty the contents of the bag on a desk at the county jail. Depperman examined the items and opened one of the small cardboard packages. Officer Green then asked Depperman to open the other package. Both packages contained a powder-like substance, which, by stipulation was identified to be cocaine.

At the conclusion of the suppression hearing, the trial judge denied the defendant’s motion to suppress, reasoning that a detailed search of items seized pursuant to a lawful arrest could take place at any time, and that there was no legitimate expectation of privacy in any package that was legally seized.

It is from the denial of his suppression motion that the defendant brings the instant appeal. The defendant contends that his fourth and fourteenth amendment rights were violated when his wallet and the cardboard containers found therein were searched. He asserts that he had a reasonable expectation of privacy in his wallet and the two cardboard packages and further contends that the State failed to establish any exception to the warrant requirement. The State argues that the search was valid as a delayed search incident to the defendant’s arrest or as a valid inventory search. Neither party disputes the lawfulness of the defendant’s arrest, nor does the State specifically challenge the defendant’s assertion that he had a reasonable expectation of privacy in the contents of his wallet and items found therein.

Searches of arrestees and of their personal property during post-arrest detention have been the subject of a considerable body of case law in recent years. In United States v. Edwards (1974), 415 U.S. 800, 39 L. Ed. 2d 771, 94 S. Ct. 1234, the United States Supreme Court held that a search incident to arrest, if lawful at the time of the arrest, may be conducted later when the accused arrives at the place of detention. In Edwards, the defendant was lawfully arrested and a search was conducted at the police station. The next day, without a warrant, the defendant’s clothes were taken from him and evidence was discovered on that clothing. In upholding the search, the Supreme Court noted that the search was a normal incident of an arrest, and that a reasonable delay in effectuating the search did not change the fact that the defendant was no more imposed upon than he would have been at the time and place of his arrest or immediately after his arrival at the place of detention.

The Edwards case was consistent with the principle announced by the Supreme Court one year earlier in United States v. Robinson (1973), 414 U.S. 218, 38 L. Ed. 2d 427, 94 S. Ct. 467. In Robinson, heroin discovered in a cigarette container taken from the defendant during a custodial arrest was held admissible. In so holding, the Supreme Court announced that in cases of lawful custodial arrests, a full search of the person is not only an exception to the warrant requirement of the fourth amendment but is also a reasonable search under that amendment.

Subsequent to the Robinson and Edwards decisions, courts have generally recognized that anything on the person is fair game for a search incident to a lawful arrest. Thus, courts have upheld searches through containers on the person: United States v. Jeffers (7th Cir. 1975), 524 F.2d 253 (a purse); and through the arrestee’s pockets: McCoy v. State (Alas. 1971), 491 P.2d 127 (may also search wrapped packet found in the pocket). Of most significance for the case at bar, searches through the arrestee’s wallet have been upheld: United States v. Basurto (9th Cir. 1974), 497 F.2d 781 (may also scrutinize documents found therein); State v. Dubay (Me. 1974), 313 A.2d 908 (a crushed LSD tablet found in a ball of tinfoil in the defendant’s wallet was admissible); and State v. McElroy (1972), 189 Neb. 376, 202 N.W.2d 752 (cocaine discovered in a folded, opaque newspaper measuring llz by 2 inches and found in the defendant’s wallet was admissible).

In 1977, the United States Supreme Court limited the option of postponing a search incident to arrest by sanctioning only delayed searches of the person of the accused and of personal property discovered as a result of a search of the person. (United States v. Chadwick (1977), 433 U.S. 1, 53 L. Ed. 2d 538, 97 S. Ct. 2476.) Prohibited by Chadwick are searches of ” personal property not immediately associated with the person of the arrestee ° ° (United States v. Chadwick (1977), 433 U.S. 1, 15, 53 L. Ed. 2d 538, 551, 97 S. Ct. 2476, 2485). A search of a locked footlocker found adjacent to the lawfully arrested defendants conducted at the stationhouse and without a warrant subsequent to the defendants’ arrest was held unlawful in Chadwick. Subsequent case law has applied the Chadwick rule to various types of containers, whether locked or unlocked. The test is whether, judging from the totality of circumstances, the accused has a reasonable expectation of privacy in the container. For examples of impermissible searches, see, e.g., Robbins v. California (1981),_U.S. _, 69 L. Ed. 2d 744, 101 S. Ct. 2841 (closed opaque plastic bag); United States v. Rigales (5th Cir. 1980), 630 F.2d 364 (closed backpack); People v. Bayles (1980), 82 Ill. 2d 128, 411 N.E.2d 1346 (unopened suitcase); and Arkansas v. Sanders (1979), 442 U.S. 753, 61 L. Ed. 2d 235, 99 S. Ct. 2586 (unlocked suitcase).

In recent opinions from the Illinois Supreme Court (People v. Helm (1981), 89 Ill. 2d 34), and from this court (People v. Lafayette (1981), 99 Ill. App. 3d 830, 425 N.E.2d 1383), the Chadwick rule was applied to hold unlawful the postponed warrantless search of the defendant’s purse and shoulder bag, respectively. Because the searches in Helm and Lafayette could not be justified as properly incident to a lawful arrest or as valid inventory searches of the defendant’s belongings, they were held to have violated the fourth amendment.

Applying the principles found in this body of case law to the facts of the case at bar, we find that the defendant’s wallet is the type of object subject to a search, whether incident to his arrest or justified as an inventory search. This is so despite the absence of any clear indication in the record that the defendant’s wallet was found on his person. We note that there is nothing to rebut the obvious presumption that the wallet was found on the defendant’s person, since he carried no type of shoulder bag or other container.

Having determined that the defendant’s wallet was subject to search following his arrest, we next address the question of whether the two packages contained in the wallet were lawfully opened. Relying on United States v. Jeffers (7th Cir. 1975), 524 F.2d 253, United States v. Basurto (9th Cir. 1974), 497 F.2d 781, and other case law applying the Chadwick rule to searches of closed containers found on the defendant’s person and to the opening of packages found within those containers, we hold that the two cardboard packages in the instant case could lawfully have been opened at the time of their first discovery.

Our final task must be to determine the legality of the timing of the search. The defendant’s wallet was searched at the Peoria Police Department subsequent to his arrest, and the two cardboard packages were removed. These items plus other personal belongings of the defendant were put into a paper bag, which was then placed in an unlocked security locker. The next day, the defendant’s belongings were taken to the county jail. There, both cardboard packages were opened. Was this “second look” permissible? Based on our recent decision in People v. Richards (1981), 103 Ill. App. 3d 1120 we hold that it was not. In Richards, this court held unlawful a second look search of a necklace found in the defendant’s clothing pursuant to a lawful inventory search on the basis that the second search was not justifiable as either a delayed search incident to arrest or as an inventory search and was thus a violation of the defendant’s fourth amendment rights.

In the case at bar, the search of the defendant’s wallet following his arrest was clearly lawful. Had the packages found in his wallet been opened at the time of their initial discovery, the cocaine found in them would have been admissible. It is the delay in searching the packages which renders the cocaine discovered in them inadmissible.

For the foregoing reasons, we reverse the judgment of the circuit court of Peoria County.

Reversed.

STOUDER, J., concurs.

JUSTICE HEIPLE,

specially concurring:

On December 22, 1980, Helbert Hughes was arrested by a Peoria policeman on outstanding Livingston County warrants for- forgery and deceptive practices. Defendant was allowed to drive his car home and park it. He was transported to the Peoria police station. Escorted to an interview room, he was thoroughly searched. Mr. Hughes was told to empty the contents of his pockets and drop his pants. Defendant complied, placing his wallet and other personal effects on a table. Officer Green searched the wallet. Inside he found two small cartons labelled “sno-seals.” These were presumed to be prophylactics and not opened. The wallet and its contents and other personal effects were put in a property envelope and taken to the police evidence locker. After Mr. Hughes was transferred from the city lockup to the county jail this property envelope was inventoried by Mr. Depperman, a jailer. He looked in the two previously unopened cartons and found cocaine.

Defendant’s motion to suppress the seized contraband was denied. The majority says this was wrong. They so conclude because they believe that the second search by Mr. Depperman was illegal since conducted without a warrant and because it was unreasonable. People v. Richards (1981), 103 Ill. App. 3d 1120.

This is a rationale that fails to see the forest for the trees. It was the first search of the wallet in this case that was illegal. If the first search was illegal, then, of course, it would follow that the second search was correspondingly illegal since it followed from an illegal first search. The majority opinion, however, says that the first search was perfectly all right but that it was wrong to take a second look. I disagree, but more on this later.

As fourth amendment law has evolved, so have limitations to the general rule which prohibits warrantless police searches. One such exception permits a police officer to conduct a search of a man arrested for a felony. Thus, in United States v. Robinson (1973), 414 U.S. 218, 235, 38 L. Ed. 2d 427, 441, 94 S. Ct. 467, 477, the United States Supreme Court stated:

“* * * in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a ‘reasonable’ search under that Amendment.”

This language being quite broad, it was assumed to give police a wide berth in conducting a search incident to a custodial arrest. In United States v. Chadwick (1977), 433 U.S. 1, 53 L. Ed. 2d 538, 97 S. Ct. 2476, however, it was indicated that the search incident to arrest theory is much more limited than the Robinson rule declared. In Chadwick several defendants, while under police surveillance for drug trafficking, placed a footlocker in a car trunk. They were arrested, the footlocker seized, and both defendants and footlocker were transported to a Federal building where defendants were detained. An hour and one-half later, the footlocker was opened and searched without a warrant. The Supreme Court struck down the search as incidental to the arrest. In so doing it held that no exigency existed; that the footlocker was in the police’s exclusive control; that no danger was presented to the police; and that the luggage was not immediately associated with the arrestees’ persons. In short, Chadwick tempered the broad language of Robinson where a closed container is concerned. See 2 LaFave, Search and Seizure §5.5, at 347-54 (1978).

In light of Chadwick and the discussion which follows, the search incident exception is not per se reasonable under the fourth amendment even if in the custodial context. The necessity of a warrantless search must be gauged by balancing the interests of law enforcement and the individual’s expectation of privacy in the article examined. In this cause, the latter interest predominates.

A warrantless search of a container normally used to carry one’s personal effects such as notes or papers violates the fourth amendment of the Federal constitution unless the search falls within an established exception to the warrant requirement. (Arkansas v. Sanders (1979), 442 U.S. 753, 763, 61 L. Ed. 2d 235, 244, 99 S. Ct. 2586, 2592-93.) Various containers such as a backpack (United States v. Rigales (5th Cir. 1980), 630 F.2d 364), a suitcase (People v. Bayles (1980), 82 Ill. 2d 128), a briefcase (United States v. Berry (7th Cir. 1977), 560 F.2d 861), and a purse (People v. Lafayette (1981), 99 Ill. App. 3d 830; United States v. Monclavo-Cruz (9th Cir. 1981), 662 F.2d 1285), reflect that an individual’s expectation of privacy in such articles is reasonable. It is not merely the nature of the containers, but what individuals carry in them, how the articles are used, and society’s recognition that an expectation of privacy in such articles is reasonable. A wallet, like a purse, is not just a piece of clothing. Similar privacy interests attach to it.

The People contend the warrantless search of defendant’s wallet was proper as a delayed search incident to defendant’s arrest. As noted, my colleagues agree. Based on the facts, I do not.

When a defendant is arrested for a felony an arresting officer may search without a warrant the arrestee and the area within his immediate control. This is an exception to the rule which proscribes warrantless police searches. (Chimel v. California (1969), 395 U.S. 753, 763, 23 L. Ed. 2d 685, 694, 89 S. Ct. 2034, 2040.) The reason for the exception is justified because of:

«oo# t^e neec[ co seize weapons and other things which might be used to assault an officer or effect an escape, as well as by the need to prevent the destruction of evidence of the crime — things which might easily happen where the weapon or evidence is on the accused’s person or under his immediate control. ° e (Preston v. United States (1964), 376 U.S. 364, 367, 11 L. Ed. 2d 777, 780, 84 S. Ct. 881, 884.)

Hence, if the need for this exception is not established, a warrantless search is unconstitutional.

Defendant was arrested for forgery and deceptive practices. When these offenses occurred is not in the record. When arrested, Mr. Hughes was not placed in restraints. He was allowed to drive his car home and park it. Then, he was driven in a police cruiser to the station. The subsequent search of his wallet was not conducted to locate'a weapon. Nor was it executed so defendant could be thwarted from destroying evidence inside it. In fact, defendant could not have destroyed any such evidence since Officer Green was in physical possession of the wallet. Consequently, allowing a search incident to defendant’s arrest was inconsistent with purposes for the exception’s creation. In the absence of another exception to the rule prohibiting warrantless searches, the first search of the wallet was invalid.

The People contend the search was valid since it was a permissible inventory. In order for an inventory search to be reasonable it must advance three objectives; protection of the police from the risk of harm; safeguarding the owner’s property interests; and protection of the police as custodians from liability for theft or damage claims to the prisoner’s property. (People v. Bayles (1980), 82 Ill. 2d 128, 140-41.) The People bear the burden of proving the inventory search of Mr. Hughes furthered these three legitimate aims.

Inadequate facts exist which lend themselves to the conclusion this search was a valid inventory. Why was the officer looking in defendant’s wallet? Hughes was unarmed and had not attempted to escape, although he could have readily attempted to do so in his own automobile. The officer was not looking in the wallet for a weapon. Even if he were, the wallet was not in defendant’s control but the officer’s physical possession. The police did not open the wallet for the purpose of inventorying its contents but wanted to search for contraband. Officer Green offered no testimony that he believed the wallet contained evidence which would diminish in value unless the wallet was opened and searched immediately. A warrant could have been sought. Alternatively, the police could have simply secured the wallet in an intact form in a police envelope without looking inside it. In other words, inventory it as a wallet. This wallet, as much as a purse, was a closed container in which, under these circumstances, defendant had a reasonable expectation of privacy. No evidence was produced which showed such a procedure would have created a security risk to the police personally, or to the police department for potential liability for theft. The People adduced no testimony indicating the occurrence of past thefts or losses from the property lockers in the police station. It was the People’s burden to establish this warrantless search was an exception to the warrant requirement, as well as the fact the search was reasonable. (People v. Helm (1981), 89 Ill. 2d 34.) This they failed to do. See also People v. Hamilton (1979), 74 Ill. 2d 457, 464-70.

The second search by the jailer was wrong only because the first search was warrantless and unreasonable. My colleagues say People v. Richards invalidates this second search. I disagree. First, with the absurd result reached in Richards. And second, with the application of Richards to this cause. If the police have correctly seized, examined, and inventoried articles from a person arrested for a felony, then looking at those items a second or third time does not violate the fourth amendment.

In Richards the object sought to be suppressed was a necklace Richards allegedly stole. Another person, the victim of the theft, was invited to examine this jewelry at the police station to determine whether it was her property. She identified it positively. Later, this “second look” was suppressed because it allegedly infringed on defendant’s privacy interests in the jewelry and because a warrant could have been obtained. Such a ruling defies common sense. The victim of a theft or burglary has a right to identify and regain his stolen property. If the police have property in custody which they suspect is stolen, why not let the possible owner see it to determine if it is his? No one is harmed by such a procedure and justice is served. To require the formal application for a search warrant in such a situation is to indulge in purposeless judicial wheelspinning. The law already has too much of that.

There is, of course, a further distinction between the necklace in Richards and the wallet in the instant cause. A necklace is an apparel item made to be seen by others. A necklace is not used to house or carry things but to be looked at. A wallet or purse, on the other hand, is specifically designed, as well as perceived by its users, to carry items that are not only valuable but personal and confidential. Thus, a rationale that would allow an invited scrutiny of a seized chattel such as a jewelry item does not pertain to a scrutiny of the contents of a seized billfold or purse in which the owner has a reasonable expectation of privacy.

For the reason that the first examination of the billfold contents was improper, I concur with the result reached by the majority which suppresses the evidence seized. I divorce myself, however, from the rationale of the majority opinion wherein it upholds the invalid first search but then inexplicably concludes that the police had no right to take a second look at property which the majority believes was rightly within their custody.

Thus, I concur specially.

       My opinion interprets Federal constitutional principles. The Illinois bill of rights has a counterpart to the fourth amendment (i.e., Ill. Const. 1970, art. I, §6). The latter provision warrants a different historical treatment than afforded the fourth amendment. This would not make for a difference in the outcome in this particular cause since the Illinois constitutional question was neither briefed nor argued.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES E. KLINKHAMMER, Defendant-Appellant.
    Third District
    No. 81-495
    Opinion filed March 31, 1982.
    Robert Agostinelli and Stephen H. Omolecki, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    Edward F. Petka, State’s Attorney, of Joliet (John X. Breslin and Terry A. Mertel, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE HEIPLE

delivered the opinion of the court:

A Will County indictment, returned April 16, 1980, charged the defendant, James Klinkhammer, with murder, felony murder, two counts of aggravated kidnapping, and armed robbery. A jury found defendant guilty on all counts. He was sentenced to two 40-year concurrent prison terms for the murder convictions. Two 15-year terms were imposed for the two aggravated kidnapping felonies; the armed robbery conviction resulted in a 30-year term. The latter three penalties were to run concurrently with each other, but consecutive to the two murder punishments. Mr. Klinkhammer appeals.

On February 19, 1980, defendant and John Mackey agreed to rob a Clark gas station on Route 30 in East Chicago Heights. The idea originated with the defendant. Formerly, Mackey worked for Clark at other station locations. Mackey would be the driver. After entering the station, the attendant would be told to fill the car’s gas tank. When he asked for the money, the attendant would be forced into the car and the keys to the station’s safe taken. Once the safe was opened and plundered, the pair would flee. The attendant was to be transported to the “Old Roads” area off Torrance Avenue, knocked unconscious, and left to fend for himself.

In part, the armed robbery proceeded according to plan. Mackey’s shotgun was employed. The two men went to the Clark station around 5:30 a.m. They laid in wait. Ronnie Sterling, the victim, opened the station around 5:45 a.m. Mackey pulled up to the pumps and defendant asked for service. When payment was requested, defendant brandishing the shotgun, told Mr. Sterling to get in the car. He was robbed. Sterling, however, did not have the key to the gas station’s safe. Only the manager carried that key. Thus, the proceeds in the safe could not be looted. Mackey drove to the “Old Roads” area. Klinkhammer ushered Mr. Sterling out of the car at gunpoint. The defendant shotgunned Ronnie Sterling to death. Two shots were fired at close range into the back of his head.

On March 12, 1980, Mackey was taken into police custody. At that time he made a tape-recorded statement implicating himself and defendant. When the statement was taken, no deal was offered Mackey in exchange for his statement. Later, during plea negotiations, Mackey said he would plead guilty to two counts of aggravated kidnapping in exchange for a recommendation of an eight year prison term. This arrangement was first discussed with Mackey by his own lawyer on March 23,1980. At trial, of the dozen witnesses for the People, Mackey’s testimony, was the most revealing.

During Mackey’s redirect examination the People attempted to have his March 12th statement admitted into evidence. Defendant objected, arguing that prior consistent statement was inadmissible since it was being used to impermissibly bolster Mackey’s direct testimony, and therein his credibility. The statement was admitted by the trial judge. On appeal, defendant maintains this was reversible error. We disagree for two reasons.

It is well established that a witness may not testify as to statements made out of court for the purpose of corroborating his trial testimony on the same subject. However, when it is necessary to rebut an allegation that the witness was motivated to lie or his testimony is of recent fabrication, evidence is admissible that the witness told an identical story prior to the time when the motive to fabricate came into existence. (People v. Clark (1972), 52 Ill. 2d 374, 389.) In such an instance, proof that the witness gave a similar account of the occurrence, when the motive to lie was nonexistent, or before the effect of the account could be foreseen, makes the prior consistent statement admissible. People v. Powell (1973), 53 Ill. 2d 465, 475, citing 4 Wigmore, Evidence §1128 (3d ed. 1940).

The question of according Mackey leniency in return for incriminating testimony against Klinkhammer was first discussed on March 23, 1980, between Mackey and his lawyer. On March 12,1980, no deals were made when Mackey was arrested, although he did inquire whether one could be made. The response from the People was clear: a deal could not be made, but Mackey’s cooperation would be noted. Such a response did not offer any reward or benefit to Mackey. Plea bargaining began on March 23 which was 10 days after Mackey gave the taped statement to police.

Moreover, during cross-examination the defendant had impeached Mackey with contradictions in his testimony. The vehicle for such impeachment consisted of portions of the taped statement made immediately after his arrest. It is well settled that “* # * where a witness has been impeached by proof that he has made prior inconsistent statements, he may bring out all of the prior statements to qualify or explain the inconsistency and rehabilitate the witness.” (People v. Hicks (1963), 28 Ill. 2d 457, 463.) How much weight should be accorded the statement is a jury question. But we believe the jury should be entitled to hear the entire statement in order to determine the amount of credence it should accord any inconsistency with it. Thus, for the reasons stated, admitting the prior consistent statement into evidence was correct.

Finally, defendant maintains he cannot be sentenced for both murder and felony murder since a single victim was killed. A similar argument is advanced concerning the two aggravated kidnapping convictions. We agree with both contentions.

Multiple convictions based upon the same physical act cannot stand. Defendant, while armed with a dangerous weapon, kidnapped Ronnie Sterling, robbed him, then murdered him. Such conduct involves three offenses: murder, armed robbery, and aggravated kidnapping. This was not a situation where separate abductions occurred on the same victim at different intervals, or more than one victim was unlawfully confined. (See People v. Schultz (1979), 73 Ill. App. 3d 379, 386-87.) Confining the victim while armed with a shotgun in order to rob him is one aggravated kidnapping. It is one armed robbery when something of value was taken from Mr. Sterling. Finally, one man, not two, was murdered. Accordingly, we reverse the felony murder conviction and the second conviction for aggravated kidnapping.

Since two of the five convictions have been reversed, this cause will be remanded for a new sentencing hearing. This mandate should not be construed as a reflection on the punishments imposed by the trial judge. We do observe that defendant’s deeds were calculated, savage, and ruthless. We remand in order that the trial court may resentence the defendant without consideration of the two vacated sentences.

For the reasons stated, the conviction for felony murder and the second of the two aggravated kidnapping convictions are reversed. The sentences imposed thereon are vacated. The convictions for murder, armed robbery and the first aggraváted kidnapping conviction are affirmed. The sentences entered on such convictions are vacated, however, and the cause is remanded to the trial court for a new sentencing hearing.

Affirmed in part; reversed in part; sentences vacated and cause remanded.

ALLOY and STOUDER, JJ., concur.