text:
    LEO PIESZCHALSKI, Plaintiff-Appellee, v. JOHN J. OSLAGER et al., Defendants-Appellants; Bi-Petro, Inc., Defendant (Leo Pieszchalski, Plaintiff-Appellee, v. Albert Middeke et al., Defendants-Appellants; Farm Feeds Construction Company, Plaintiff-Appellant, v. Leo Pieszchalski, Defendant-Appellee).
    Fifth District
    No. 82—672
    Opinion filed September 20, 1984.
    Rehearing denied November 9, 1984.

      George C. Lackey, of Lackey, Warner & Sauer, of Centralia, for appellants.

      Clarence W. DeMoss, of Hohlt, House, DeMoss & Johnson, of Nashville, for appellee.
   JUSTICE KASSERMAN

delivered the opinion of the court:

The issues presented by the instant appeal arise out of two appeals that were consolidated by this court on motion of appellants.

One appeal involves plaintiff Leo Pieszchalski’s complaint to compel defendants John J. Oslager, Madelyn B. Oslager, Albert B. Middeke, and Helen L. Middeke to execute to Pieszchalski a release of all interest owned by them in an oil and gas lease. Pieszchalski is successor in interest of the original lessors, and defendants Albert B. Middeke and Helen L. Middeke are the assignees of a portion of the interest of John J. Oslager and Madelyn B. Oslager, original lessees. Pieszchalski also sought a declaration that the lease was terminated and that he was the owner of all equipment or personal property left upon the land in question. Additionally, Pieszchalski prayed that defendant Bi-Petro, Inc., be ordered to pay to him all proceeds of sale of oil and gas presently withheld by Bi-Petro. After judgment was entered in the trial court in favor of Pieszchalski in his suit against the Oslagers, Farm Feeds Construction Company, the Middekes’ successor in interest, filed suit against Pieszchalski for a declaratory judgment and injunction, alleging its lease was still in full force and effect. The Oslagers, the Middekes, and Farm Feeds Construction Company appeal from the judgments entered against them and in favor of Pieszchalski, finding the lease to have been terminated. The Oslagers also appeal from the trial court’s determination that the equipment left on the land was Pieszchalski’s property. This issue was decided against Pieszchalski as to the Middekes and Farm Feeds, and Pieszchalski did not appeal from this decision.

In his August 1982 complaint, Pieszchalski alleged that his predecessors in title had executed the lease in question to defendant John Oslager in 1972; that the lease covered approximately 200 acres and was for a term of six months and for as long thereafter as oil or gas was produced from the land; that John Oslager, joined by his wife, defendant Madelyn Oslager, had assigned to the Middekes a one-fourth working interest in the lease so far as the same covered 10 of the 200 acres contained in the original lease; that no oil or gas had been sold or produced “in paying quantities” for over two years and that the lease had therefore terminated by its own terms; that defendants had failed and refused to execute a release of the lease as required by statute; and that defendants’ “failure to produce oil or gas” for over two years further constituted an abandonment of the lease and a forfeiture of equipment and personal property left behind on the land. A copy of the lease was appended to the complaint. The habendum clause of the lease (paragraph 2) provides: “Subject to the other provisions herein contained, this lease shall remain in force for a term of 6 months from this date (called ‘primary term’) and as long thereafter as oil, liquid hydrocarbons, gas or their respective constituent products, or any of them is produced from said land ***.”

The Oslagers each entered a pro se appearance and general denial of the allegations of the complaint. Bi-Petro filed an answer denying that it presently withheld any proceeds from sale of oil or gas from the lease in question. By notice filed October 4, 1982, bench trial was set for October 26, 1982; the notice indicates that the parties were notified of this setting by mail. The Middekes filed their answer October 22, 1982, and on the same date moved for a continuance of trial.

The cause was called for bench trial on October 26, 1982, as set. A written order filed that date granted the Middekes’ request for continuance of trial and stated that the Oslagers were notified of the trial date but did not appear personally or by counsel and that after considering the evidence the court found the lease to be abandoned and terminated due to “failure to produce [or] operate.” The court found that Bi-Petro had no liability to Pieszchalski. A “decree” filed the next day states, inter alia, that no oil or gas had been “sold or produced in paying quantities” for over two years, resulting in both a termination under the terms of the lease and an abandonment of the lease; that the lease was of no force and effect; and that all equipment left on the land was Pieszchalski’s property. The decree also recited that it was final and appealable and that there was no just reason to delay enforcement or appeal. A “certificate of mailing” filed October 27, 1982, indicates that the Oslagers and counsel for the Middekes were notified of the decree by mail. The Middekes and the Oslagers thereupon appealed to this court; however, Pieszchalski’s motion, to dismiss the appeal as to the Middekes was subsequently granted by this court.

After the Oslagers’ appeal had been perfected, Farm Feeds Construction Company filed its complaint against Pieszchalski, seeking (1) a declaratory judgment that the lease in question was in full force and effect, and (2) an injunction preventing Pieszchalski from interfering with the operation of the lease and with the equipment located on the land. The complaint further alleged that the Middekes had assigned their entire working interest as to the 10 acres on which the well was located to Farm Feeds. This allegation was later established by introduction into the record of the pertinent documents. The latter case was consolidated with Pieszchalski’s suit against the Middekes, which was still awaiting trial.

After a bench trial in the consolidated cases, the circuit court found upon conflicting testimony that Oslager had not been prevented from operating the well between August 1980 and August 1982 or from taking steps to increase production. The court concluded that the oil and gas lease had terminated but that there had been no abandonment of the equipment and personal property on the land by the Middekes or by Farm Feeds. The court also found that due to the prior judgment against the Oslagers as to the equipment, Pieszchalski was owner of a three-fourths interest in said equipment, and Farm Feeds was owner of one-fourth interest in said equipment.

The Middekes and Farm Feeds appealed to this court and moved to consolidate their appeal and the record therein with the Oslagers’ appeal and its record. This court granted that motion over Pieszchalski’s objection.

The Oslagers contend on appeal that the trial court erred in disposing of Pieszchalski’s claim against the Oslagers without adjudicating the claim against the Middekes. The Oslagers characterize the Middekes as “necessary” parties without whom the issues could not fully and completely be disposed of by the trial court.

A necessary party is an individual or entity having a present, substantial interest in the matter being litigated, and in whose absence a complete resolution of the matter in controversy cannot be achieved without affecting that interest. The determination of whether a party is necessary to a cause of action is controlled by the issues presented in the case through the pleadings and the evidence and not by the final outcome of the litigation. Bovinett v. Rollberg (1979), 73 Ill. App. 3d 490, 494-95, 392 N.E.2d 27, 31.

The record before us, being a default judgment as to defendants Oslager, contains no evidence regarding the issue of absence of necessary parties; therefore, it is necessary that we refer to the pleadings for resolution of this controversy. The complaint by plaintiff Pieszchalski prays that the court declare that the oil and gas lease was of no force or effect and that all right, title and interest of the Oslagers and the Middekes “be ordered cancelled, terminated and removed as a cloud upon title,” and that the court declare any personal property and equipment left on the land forfeited and abandoned to plaintiff.

We are referred to no Illinois cases by the parties in which the question of the absence of necessary parties was considered in the context of partial assignees of oil and gas lessees, and our research has revealed none. Plaintiff urges that we consider certain comments of Professors Williams and Meyers in their treatise, Oil and Gas Law. We find that source helpful, but not the section urged by plaintiff. Section 877.1, cited by plaintiff, concerns the need to join all co-lessors, not co-lessees, in an action to cancel a lease. (5 R. Williams & C. Meyers, Oil & Gas Law sec. 877.1, at 514-16 (1982).) We find the following section to be more helpful:

“When there have been partial assignments by the lessee, the partial assignee is a necessary party defendant in an action to cancel the lease as to his assigned acreage. If he is not joined as a party to an action to cancel the lease, any decree of cancellation therein entered does not affect his interest. If the lease as a whole has not been properly developed and if the assignee was not joined in the prior suit, it will be necessary for the lessor or his assigns to institute a separate action against the partial assignee to cancel the lease as to the acreage assigned to him. In cases of this kind there may be found a discussion by the court of whether or not there has been adequate development of the acreage assigned to the defendant. This discussion is relevant in such instances since there has not been such exploration or development of the entire lease sufficient to prevent cancellation of the lease at least in part, and hence the partial assignee can avoid cancellation only by showing reasonable exploration or development of his segregated portion thereof.” 2 R. Williams & C. Meyers, Oil & Gas Law sec. 409.4, at 301-02 (1981).

Furthermore, we note that the lease in question states, at paragraph 7:

“The rights of either party hereunder may be assigned in whole or in part and the provisions hereof shall extend to the heirs, executors, administrators, successors, and assigns ***. An assignment of this lease, in whole or in part, shall to the extent of such assignment, relieve and discharge lessee of any obligations hereunder, and, if assignee of part or parts hereof shall fail to comply with any provisions of the lease, such default shall not affect this lease in so far as it covers the part of said lands retained by lessee or another assignee.”

The construction of a lease is governed by the intention of the parties thereto. (Kurek v. State Oil Co. (1981), 98 Ill. App. 3d 6, 8, 424 N.E.2d 56, 58.) Paragraph 7 of the instant lease indicates that the parties intended to render the rights and duties of the lessee and his assignees divisible to the extent that the lessors could seek cancellation of the lease as to one or more but less than all of those parties having a working interest in the lease. However, as Professors WilHams and Meyers note, the decree of termination as to the Oslagers can have no effect on the interest of the Middekes, the owners of a “segregated portion” of the lease, but who were not parties to the judgment. The trial court did not purport to cancel the lease as to the Middekes by the judgment against the Oslagers, and the fact that the Middekes were not parties to the judgment complained of does not affect its validity as to the Oslagers. The judgment correctly states that the interests canceled are those of the Oslagers and that the items of equipment left on the land in connection with the lease “are now the property of Leo Pieszchalski, free and clear of any interest of defendants John J. Oslager and Madelyn B. Oslager.” The judgment against John J. and Madelyn B. Oslager does not purport to award the equipment to Pieszchalski free and clear of any interest of the Middekes. Therefore, we conclude that the judgment against the Oslagers is not fatally defective in that it fails to adjudicate the interests of the Middekes.

We next consider the Oslagers’ contention that the default judgment against them should be reversed because Pieszchalski’s complaint failed to state a cause of action for termination of the lease under the habendum clause. This issue is also raised by the appeals of the Middekes and Farm Feeds. The latter two parties, not having defaulted at trial, also dispute the sufficiency of the proof on this issue to sustain the judgment that the lease terminated under its own terms. For the sake of convenience, we consider these matters together.

We are of the opinion that all issues relating to the pleadings have been waived. The record on appeal does not indicate that the Os-lagers or Farm Feeds ever raised this issue prior to the instant appeal. As provided by section 2 — 612(c) of the Civil Practice Law (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 612(c)), all defects in pleadings, either in form or substance, not objected to in the trial court are waived. (Christensen v. Wick Building Systems, Inc. (1978), 64 Ill. App. 3d 908, 911, 381 N.E.2d 1189, 1191.) Furthermore, no pleading is bad in substance which contains such information as reasonably informs the opposite party of the nature of the claim or defense which said party is called upon to meet (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 612(b)). Pieszchalski’s complaint in the case at bar reasonably informed the opposite parties of the existence of the lease, of their alleged duty thereunder and their alleged breach thereof, and of the relief sought, i.e., declaration that the lease had terminated by its own terms. The Oslagers, the Middekes, and Farm Feeds contend on appeal that the lease did not impose upon them the duty Pieszchalski alleged was imposed, namely, the duty to produce oil or gas in paying quantities. However, if the complaint states a cause of action, no matter how defectively or imperfectly alleged, and the same is not challenged in the trial court, then such defectively stated cause of action is cured by judgment or verdict and cannot be questioned on appeal. (See Owens-Illinois Glass Co. v. McKibbin (1943), 385 Ill. 245, 250, 52 N.E.2d 177, 180; Lasko v. Meier (1946), 394 Ill. 71, 75, 67 N.E.2d 162, 165.) We add that it would be a complete waste of judicial manpower and court facilities to permit the Oslagers to acquiesce in a plaintiff’s obtaining a judgment by default, with the attendant expenditure of time and money, and then allow them to later attack pleadings which they contend could have been dismissed prior to trial. Cf. Third Swansea Properties, Inc. v. Ockerland Construction Co. (1976), 41 Ill. App. 3d 894, 899, 354 N.E.2d 148, 151, where it was apparent that the defect complained of could have been cured by amendment.

Although the Middekes did raise the pleading issue in the trial court, the court held it to have been waived. We agree. The record indicates that the Middekes filed their answer to Pieszchalski’s complaint on October 1, 1982, making no reference to the pleading issue. Thereafter the Middekes filed interrogatories, petitioned for a change of venue, and joined with the Oslagers in filing an appeal to this court. On December 9, 1982, the Middekes moved to dismiss the complaint on the ground that they had no right, title or interest in the premises in question. Said motion was denied. Farm Feeds filed its complaint on December 27, 1982. On January 19, 1983, the Middekes filed their motion for “Judgment on Pleadings” upon Pieszchalski’s complaint, urging that “production in paying quantities” was not necessary to extend the lease under the habendum clause. No motion to withdraw the Middekes’ previous answer to Pieszchalski’s complaint appears of record.

Generally, where a complaint substantially although imperfectly alleges a cause of action, the defendant waives any defect by answering it without objection. (Burks Drywall, Inc. v. Washington Bank & Trust Co. (1982), 110 Ill. App. 3d 569, 572, 442 N.E.2d 648, 651; Cushman & Wakefield of Illinois, Inc. v. Northbrook 500 Limited Partnership (1983), 112 Ill. App. 3d 951, 958, 445 N.E.2d 1313, 1318; Dunham v. Dangeles (1978), 67 Ill. App. 3d 252, 255, 384 N.E.2d 836, 838.) The only exception to this rule is where the complaint wholly fails to state a cause of action. (Burks Drywall, Inc. v. Washington Bank & Trust Co. (1982), 110 Ill. App. 3d 569, 442 N.E.2d 648.) Such is not the case in the instant action. As noted above, Pieszchalski’s complaint alleges defendant’s duty, its breach, and the relief sought. It cannot be said that these allegations were stated so defectively as to allege no cause of action whatsoever. Further, the complaint contained sufficient information to reasonably inform the Middekes of the nature of the claim they were called upon to meet. See County of Winnebago v. Willsey (1970), 122 Ill. App. 2d 149, 153-54, 258 N.E.2d 138, 141.

Turning to the next issue raised by the instant appeal, we are unable to agree with the Oslagers, the Middekes, and Farm Feeds that the evidence adduced at trial was insufficient to establish that the lease in question had terminated. In determining that said defendants’ leases had terminated, the trial court held that Gillespie v. Ohio Oil Co. (1913), 260 Ill. 169, 170, 102 N.E. 1043, 1044, relied upon by the lessees and their assigns, no longer states the law in Illinois; however, we are of the opinion that the decision in Gillespie need not be disregarded. We find Gillespie to be distinguishable in that it does not stand for the proposition these defendants attribute to it, i.e., that any production, however meager, is sufficient in any event to extend an oil and gas lease beyond the primary term under a habendum clause not requiring production of oil or gas in paying quantities.

In Gillespie v. Ohio Oil Co., lessors sought a determination by the court that an oil and gas lease was null and void on the ground that the lease had expired by its own terms by virtue of the fact that lessors had never been paid royalty since the drilling of a well on the leased premises. The lease was for a term of five years and for so long thereafter as oil or gas was “produced.” It was not disputed that the five-year primary term had expired before the suit was filed. While acknowledging that the quantity of oil produced (96 barrels in 21 months) was so small as to cause the venture to be unprofitable, the supreme court held that the lease had not expired by its own terms. The court based its decision on the fact that oil had been produced continuously since the drilling of the well.

We are not persuaded that the result in Gillespie v. Ohio Oil Co. would have been the same absent the latter fact, which demonstrated the operator’s diligent attempts to get what little oil could be recovered from the one well on the 90-acre leasehold. By contrast, in the case at bar Oslager testified that he would pump the single well on the real estate leased from plaintiff’s predecessor in interest until the saltwater pit was filled, then shut down. This limited pumping operations to 10 hours a day in summer, when evaporation was at its peak, and as little as two to three hours a day at other times. Oslager stated that he checked the well and timer-operated pump unit about twice a week. He further stated that sometimes he would go out to the well every day and one day after another if he was working on it. The result was the production of 68.82 barrels of oil in the two years prior to suit, an amount which the on-site storage tank easily held. As a consequence, no one received any proceeds from sale of oil during that period.

The Oslagers, the Middekes and Farm Feeds urge us to conclude that the trial court erred in finding that the parties to the lease did not intend that the lease be extended beyond the primary term under these circumstances.

The construction of a lease is governed by the intention of the parties thereto, and the court should ascertain and give effect to such intention so far as that may be done without contravening legal principles. Kurek v. State Oil Co. (1981), 98 Ill. App. 3d 6, 424 N.E.2d 56.

Courts of review have stated the purpose for which parties enter into oil and gas leases to be as follows:

“The purpose of an oil and gas lease is to obtain production. Unless lessee obtains production, he cannot recover his drilling expense. Lessor depends upon production for receipt of the royalty provided in the lease. This purpose can only be accomplished if the production which can keep the lease effective for an indefinite future period is production in the ordinary sense of the term, and hence results in royalties to the lessor.” (Metz v. Doss (1969), 114 Ill. App. 2d 195, 198, 252 N.E.2d 410, 412.)

In this regard, this court recently stated:

“Indeed, the purpose behind actions to have an oil and gas lease declared terminated, such as this action, as well as suits to cancel these leases, is to promote development of the land for oil and gas so that the owner may receive royalties. (3 W. Summers, The Law of Oil and Gas sec. 453 (rev. ed. 1958).)” (Belden v. Tri-Star Producing Co. (1982), 106 Ill. App. 3d 192, 200, 435 N.E.2d 927, 933.)

This rationale has also been stated as follows:

“In order to understand and properly interpret the language used by the parties [to an oil and gas lease] we must consider the objects and purposes intended to be accomplished by them in entering into the contract. The object of the contract was to secure development of the property for the mutual benefit of the parties. It was contemplated that this would be done during the primary period of the contract. So far as the lessees were concerned, the object in providing for a continuation of the lease for an indefinite time after the expiration of the primary period, was to allow the lessees to reap the full fruits of the investments made by them in developing the property. Obviously, if the lease could no longer be operated at a profit, there were no fruits for them to reap. The lessors should not be required to suffer a continuation of the lease after the expiration of the primary period merely for speculation purposes on the part of the lessees.” (Garcia v. King (1942), 139 Tex. 578, 585, 164 S.W.2d 509, 512-13.)

Thus, as indicated by the courts in Metz v. Doss, Belden v. Tri-Star Producing and Garcia v. King, due consideration must be given to the lessor’s object and purpose to receive royalty payments resulting from the production of oil or gas when he enters into an oil and gas lease.

In construing a written instrument, its letter should be controlled by its spirit and purpose, bearing in mind that the terms employed are servants and not masters of an intent, and are to be interpreted so as to subserve, and not to subvert, such intent. (United States Trust Co. v. Jones (1953), 414 Ill. 265, 271, 111 N.E.2d 144, 147.) Furthermore, a strict construction which renders a different result from that intended by the parties will not be adopted. Schek v. Chicago Transit Authority (1969), 42 Ill. 2d 362, 364, 247 N.E.2d 886, 888.

Whether the lease was “producing” was, in the instant case, a question of fact for the trial court to determine, and we find that the court’s decision was not contrary to the manifest weight of the evidence. (See Okmulgee Supply Corp. v. Anthis (1940), 189 Okla. 139, 141, 114 P.2d 451, 453; Sunburst Oil & Refining Co. v. Callender (1929), 84 Mont. 178, 193, 274 P. 834, 839.) We therefore conclude that a cause of action for termination of the lease under its own terms was pleaded and proved in the case at bar.

We next consider the Oslagers’ contentions concerning whether the trial court properly found the Oslagers to have abandoned the equipment and personal property on the land. The Oslagers urge that the complaint did not state a cause of action for abandonment of equipment, that no evidence of intent to abandon was shown, and that paragraph 6 of the lease specifically granted the lessees the right to remove the equipment and personal property at any time during or after expiration of the lease.

Abandonment is an intentional relinquishment of a known right. (Shannon v. Stookey (1978), 59 Ill. App. 3d 573, 576, 375 N.E.2d 881, 883.) A party seeking to declare an abandonment of an oil and gas lease must prove that the abandoning party intended to do so. (Belden v. Tri-Star Producing Co. (1982), 106 Ill. App. 3d 192, 203, 435 N.E.2d 927, 934.) An oil and gas lease may be abandoned by cessation of operations for an unreasonable length of time. Spies v. DeMayo (1947), 396 Ill. 255, 274, 72 N.E.2d 316, 325.

In the case at bar, Pieszchalski's complaint alleged that the Oslagers and the Middekes had abandoned the lease and the equipment and that there had been no production in paying quantities for over two years prior to the date of the complaint. Pieszchalski’s answer to the Middekes’ interrogatories stated that the last oil royalty check had been received August 15, 1980. We conclude that abandonment of the lease was sufficiently pleaded and that, under the circumstances, the Oslagers could have been found to have defaulted on the lease. (See Spies v. DeMayo (1947), 396 Ill. 255, 72 N.E.2d 316, affirming a finding of abandonment where the last oil produced was shipped 27 months prior to filing of the complaint.) However, inescapable is the provision in the lease in the case at bar which granted to the lessee, and his assigns, the right to remove all property and fixtures placed by lessee on the land “at any time during or after the expiration of this lease ***.” Although the Oslagers defaulted at trial, they entered appearances and denied the allegations of the complaint; therefore, Pieszchalski was required to establish his claim for relief as if the Os-lagers were present to try the case. Ryan v. Bening (1978), 66 Ill. App. 3d 127, 131, 383 N.E.2d 681, 683-84.

For the foregoing reasons, we reverse the judgment against the Oslagers as to abandonment of the equipment. We affirm in all other respects.

Since we affirm the judgment nominally rendered against Farm Feeds, that its interest in the lease in question had terminated under the habendum clause, it is unnecessary that we consider Farm Feeds’ contention that it was not bound by the judgment against the Oslagers.

For the reasons stated, the judgment of the circuit court in favor of Pieszchalski and against the Oslagers on the issue of abandonment of equipment is reversed; the judgments are affirmed in all other respects.

Reversed in part; affirmed in part.

JONES and EARNS, JJ., concur.


source: Caselaw Access Project

author: JUSTICE KARNS

license: Public Domain

text:
      In re T.E., a Minor (The People of The State of Illinois, Petitioner-Appellee, v. Lela Sandvik et al., Respondents-Appellants.
    Fifth District
    No. 5—83—0611
    Opinion filed November 9, 1984.
    Michael F. Dahlen, of Feirich, Schoen, Mager, Green and Associates, of Carbondale, and William J. Bohler, law student, for appellants.
    Randy Patchett, State’s Attorney, of Marion (Kenneth R. Boyle, Stephen E. Norris, and Debra A. Buchman, all of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE KARNS

delivered the opinion of the court:

Lela Sandvik and William Craft, parents of the minor child T.E., appeal from an order of adjudication declaring them to be unfit and from a dispositional order terminating their parental rights. Appellants contend that the trial court’s finding of unfitness is against the manifest weight of the evidence.

T.E. was born on January 25, 1981, and left the hospital in good health. Within a short time she was readmitted to the hospital with double pneumonia, severe, bleeding diaper rash, and thrush. During the infant’s stay in the hospital, the State filed a petition for adjudication of wardship. On March 26, 1981, T.E. was adjudicated a neglected minor and was placed in the custody of the Illinois Department of Children and Family Services (DCFS). The testimony had demonstrated that the child’s current living environment was injurious, largely because the mother’s mental incapacity limited her ability to properly care for the baby. Thereafter, DCFS implemented a program of visitation and training in the parents’ home on a regular basis. During the child’s weekly visits (which on occasion were prevented by cancellation, illness or bad weather), the mother was instructed and assisted in appropriate child care.

At a dispositional hearing on December 17, 1981, evidence was taken which demonstrated a lack of improvement in the mother’s ability to care for her daughter. Her in-court failure to mix the baby’s formula despite continuous instruction exemplified her ineptitude. Additionally, DCFS personnel testified that the home situation remained unimproved and injurious to the child’s well-being. The court ordered continued custody with DCFS and an extension of training and visitation for the parents.

Subsequently, and up to the time of the final dispositional hearing, DCFS maintained efforts to teach the parents how to care for their child. Regular supervised visits continued, during which a DCFS homemaker instructed the parents and observed their interaction and efforts with the child. A “four-level program” was instituted in February 1982, designed with the goal of T.E.’s eventual return to the parents. Progress was charted and discussed with the parents regularly. The record indicates that by the spring of 1983 the parents had failed to progress beyond “level one,” which required the minimal display of proper feeding, bathing, clothing, and appropriate affection, all achievable with supervision and assistance by the homemaker. Higher levels would have included longer and unsupervised visits.

The dispositional hearing held on May 27 and June 9, 1983, involved testimony of DCFS employees concerning the home situation since December 1981. The absence of improvement in the mother’s ability and in the living conditions in general were described. The DCFS homemaker stated that necessary items of food and clothing were often unavailable even when the parents expected a home visit and had been instructed as to items required for the child. For example, newborn booties and size five clothing were intended for T.E., a toddler, and the mother prepared gravy consisting of lard and formula on more than one occasion as the only nourishment available in the home.

The homemaker testified that a lack of affection was observed in the mother, and she noted negative behaviors by Lela such as slapping and name-calling. The father was able to feed and bathe T.E. properly, but was frequently absent from the home or, when present, would remove himself from the child or ignore the necessary tasks. William displayed affection toward the child, but it was observed to be inconsistent.

The living conditions can be summarized as deplorable. Used clothing, dirty towels, full ashtrays and cups with clabbered coffee littered the living area. Used toilet tissue and soiled sanitary napkins were seen in the bathroom, along with roaches in the tub when the child’s bath was being prepared. The mother attempted to mix formula in dirty jugs which often contained clabbered milk. She reused dirty Q-tips and wiped the baby’s mouth with dirty towels. Medication and butcher knives were lying around the house in reach of the child. These conditions persisted after repeated admonishments by DCFS service workers. Some testimony indicated that the home environment had in fact deteriorated over time.

Section 1(D) of the Adoption Act (Ill. Rev. Stat. 1983, ch. 40, par. 1501(D)) lists specific grounds for the court’s determination of parental unfitness, only one of which need be demonstrated. Lela and William were adjudicated unfit for failure to make reasonable efforts to correct the conditions which were the basis for the child’s removal or to make reasonable progress toward the return of the child, for failure to maintain a reasonable degree of interest, concern, or responsibility as to the child’s welfare, and for repeated failure to provide the child with adequate food, clothing or shelter although physically and financially able to do so, as defined in the Adoption Act. Ill. Rev. Stat. 1983, ch. 40, par. 1501(D)(b), (m) and (o).

The termination of parental rights requires a finding of unfitness fully supported by clear and convincing evidence. (Paul v. Steele (1984), 101 Ill. 2d 345, 461 N.E.2d 983; Davis v. Bughdadi (1983), 120 Ill. App. 3d 236, 458 N.E.2d 177; In re Harrison (1983), 120 Ill. App. 3d 108, 458 N.E.2d 146.) Wide discretion is afforded the trial court, however, whose findings will not be disturbed unless palpably against the manifest weight of the evidence. (In re M.B.C. (1984), 125 Ill. App. 3d 512, 466 N.E.2d 273; In re Gates (1978), 57 Ill. App. 3d 844, 373 N.E.2d 568.) It is obvious from the record that the trial judge evinced a deep awareness of the sensitive nature of the termination of parental rights, which is justifiable only for cogent reasons. We cannot say that the court’s findings were unsupported by the record. On the contrary, the evidence adduced at the hearings amply sustains the finding of unfitness as defined in the Adoption Act and listed in the court order, only one of which was required for an adjudication of unfitness. Ill. Rev. Stat. 1983, ch. 40, par. 1501(D).

Uncontroverted testimony proved the mother’s persistent inability to properly care for her child or to improve the deleterious home environment. The father argues that his capability was never in question and that his unfitness was not convincingly shown, because all the evidence was directed at the mother. We cannot agree. Despite William’s knowledge of the mother’s serious shortcomings, which circumstantially placed a greater burden on him concerning T.E.’s welfare, he failed to make up for Lela’s incapacity. His frequent absences, however justified, exacerbated the poor environment in the parental home. He simply failed to rectify the situation, including the dirty and unsafe living conditions, the lack of food, and the inappropriate clothing. Though William emphasizes his capability and concern, he fails to explain or account for his failure to correct or ameliorate the wretched home situation over a period in excess of two years. Additional evidence in the record reveals that William is the absentee father to several other children scattered throughout the country. This evidence is inferentially suggestive of a lack of consistency in parental concern and responsibility. William also stated that he had no interest in marrying Lela unless the child was returned. It is not unreasonable to view the father’s interest in T.E. as inconstant.

Each case must be decided sui generis. (In re Gates (1978), 57 Ill. App. 3d 844, 373 N.E.2d 568.) In this unique situation, the father cannot be disassociated from the mother in an assessment of the child’s potential environment. There is little evidence which demonstrates that the parents, together or separately, made reasonable efforts or progress to provide T.E. with what she needed, to improve the conditions which led to her early DCFS placement, or to sustain sufficient interest or responsibility pertaining to their child as warranted under the circumstances.

For the foregoing reasons, the orders of the trial court are affirmed.

Affirmed.

JONES and KASSERMAN, JJ., concur.


author: JUSTICE JONES

text:
      In re ESTATE OF WINIFRED W. OSBORN, Deceased (Lucille Krebs, Plaintiff-Appellant, v. Thomas F. Taylor et al., Executors of the Estate of Winifred W. Osborn, et al., Defendants-Appellees).
    Fifth District
    No. 5—83—0685
    Opinion filed October 16, 1984.
    Bruegge & Becker, of Breese (Robert T. Bruegge, of counsel), for appellant.
    Patrick J. Hitpas, of Carlyle, for appellees Esther Koch, The Catholic Diocese of Belleville, and Mater Dei High School, Inc.
   JUSTICE JONES

delivered the opinion of the court:

Plaintiff, Lucille Krebs, filed a complaint to contest the will of her sister, Winifred Osborn, the decedent, in which she alleged undue influence on the part of the Catholic Diocese of Belleville (Diocese), the primary beneficiary under the decedent’s will. The plaintiff’s third amended complaint was dismissed by the trial court, and the plaintiff has appealed from that dismissal. We affirm.

Following the decedent’s death on January 2, 1982, her will, dated January 24, 1975, and a codicil to that will, dated October 24, 1980, were admitted to probate. The plaintiff filed suit to contest the validity of the will, and, upon motion by the Diocese, the court dismissed the plaintiff’s complaint and amended complaints for failure to allege sufficient facts to set forth a cause of action for undue influence. The plaintiff’s third amended complaint, upon which she has elected to stand, alleged in pertinent part:

“3. Defendants, the CATHOLIC DIOCESE OF BELLE-VILLE, by and through their agents and employees, served in a confidential relationship to the decedent as religious and spiritual advisor to the decedent and in that capacity dominated the Will [sic] of the decedent and influenced the decedent unduly in that in one or more of the following respects:

A. Bestowed unusual gifts and favors upon the decedent.

B. Visited the decedent at least twice a year by members of the Chancery Office and the Bishop of the Diocese of Belleville. Such visits were extraordinary as opposed to the other members of the congregation of the Diocese.

C. Knew the decedent did not have issue or surviving spouse for whom to give her property to.

D. Knew that the decedent was dependent upon the Clergy as her means of social outlet.

E. Used the decedent’s dependency upon the Clergy for a social outlet for the decedent to patronize the decedent with the expectation of receiving substantial gifts under decedent’s Will.

F. That knowing that the decedent held high esteem for the members of the Clergy of the Diocese of Belleville, the agents of the Diocese of Belleville thereupon utilizing this situation were able to influence the decedent under the bequest of the decedent made in her Will.

4. That as a direct and proximate result of the acts set forth in paragraph 3, and because of the dependency of the decedent upon the Defendant, the CATHOLIC DIOCESE OF BELLEVILLE, by and through its agents, dominated the decedent and entered upon the influence of the Defendant.

5. The Last Will and Testament and codicil of the decedent was procured by and in favor of the Defendant, the CATHOLIC DIOCESE OF BELLEVILLE, through the use of their confidential relationship and by the CATHOLIC DIOCESE OF BELLEVILLE giving extraordinary recognition and personal attention to the decedent and because of her dependency for such attention and recognition, she was deprived of her free agency in the making of said purported Will and Codicil and was wrongfully induced to make the same.”

At issue on appeal from the judgment dismissing this complaint is whether the complaint set forth sufficient facts to state a cause of action against the defendant for the exercise of undue influence in procuring the will of the decedent. It is well settled that, in a will contest action, it is not sufficient to allege merely a conclusion that a party exercised undue influence over the decedent. Rather, facts must be stated in the complaint which, if proved, would warrant such a conclusion. (Ryan v. Deneen (1940), 375 Ill. 452, 31 N.E.2d 582.) As expressed in Sterling v. Kramer (1957), 15 Ill. App. 2d 230, 234, 145 N.E.2d 757, 759,

“the general rule in Illinois [is] that the pleading of undue influence in a will contest must contain a specific recital of the manner in which the free will of the testator was impaired at the time the instrument was executed. A mere conclusion that the testator was influenced by the persuasive or dominant nature of one of the beneficiaries is not sufficient.”

It is the plaintiff’s position here that sufficient facts were alleged in her third amended complaint to show the existence of a fiduciary relationship between the defendant Diocese and the decedent and that a presumption of undue influence arose as a result of that relationship. A prima facie case for undue influence may be stated by facts showing (1) that a fiduciary relationship existed between the testator and a devisee who received substantial benefit from the will, (2) that the devisee was the dominant and the testator the dependent party, and (3) that the will was procured by and in favor of the fiduciary through the use of his dominant fiduciary or confidential relationship. (Belfield v. Coop (1956), 8 Ill. 2d 293, 134 N.E.2d 249; Swenson v. Wintercorn (1968), 92 Ill. App. 2d 88, 234 N.E.2d 91.) The necessary fiduciary relationship exists where there is a special confidence reposed in one who, by reason of such confidence, must act in good faith and with due regard to the interests of the person reposing such confidence. This relationship “may exist as a matter of law between attorney-client, guardian-ward, trustee-beneficiary, and the like, or it may be the result of a more informal relationship — moral, social, domestic or even personal in its origin. [Citations.]” Swenson v. Wintercorn (1968), 92 Ill. App. 2d 88, 100, 234 N.E.2d 91, 97.

Applying these rules in the instant case, we believe the plaintiff’s complaint was deficient both in that it failed to set forth adequate facts showing the existence of a fiduciary relationship between the Diocese and the decedent and in that it failed to allege specifically how the Diocese participated in the execution of or otherwise procured the decedent’s will. While the plaintiff, in paragraph three of the complaint, asserts that a confidential relationship arose from the Diocese’s role as religious and spiritual advisor to the decedent, we are aware of no authority, nor has the plaintiff cited any, to the effect that such a relationship is fiduciary as a matter of law. The further allegations of the complaint — that the decedent received unusual gifts and favors from members of the clergy of the diocese, that the decedent was dependent upon the clergy as a means of social outlet, and that the Diocese was held in “high esteem” by the decedent — fail to indicate that the decedent reposed any “special confidence” in the Diocese or, indeed, that the relationship between the decedent and her religious advisors was any different than that between other elderly persons and their religious or spiritual advisors. The decedent’s alleged dependency on the clergy for a social outlet, moreover, is not the kind of dependence resulting from weakness or debilitation that will tend to show domination and undue influence by a fiduciary. (Cf. Mitchell v. Van Scoyk (1953), 1 Ill. 2d 160, 115 N.E.2d 226 (old age and disability of testator material circumstance on issue of undue influence by fiduciary-beneficiary); see Greathouse v. Vosburgh (1960), 19 Ill. 2d 555, 169 N.E.2d 97.) In the absence of specific allegations supporting the plaintiff’s claim of abuse of fiduciary duty by the Diocese, the plaintiff’s complaint is insufficient to state a prima facie case of undue influence.

Even if we were to assume the existence of a fiduciary relationship between the Diocese and the decedent, the plaintiff’s complaint further fails to state in what way the Diocese was involved with or acted to procure the decedent’s will. A presumption of undue influence arises, not from the mere fact of a fiduciary relationship, but from the fiduciary’s participation in procuring execution of the will (Swenson v. Wintercorn (1968), 92 Ill. App. 2d 88, 234 N.E.2d 91), as undue influence that will invalidate a will must be directly connected with its execution and operate at the time it was made (Peters v. Catt (1958), 15 Ill. 2d 255, 154 N.E.2d 280; Sterling v. Kramer (1957), 15 Ill. App. 2d 230, 145 N.E.2d 757). Although the decedent’s will containing the bequest to the Diocese was executed in 1975, seven years before her death in 1982, no mention is made in the plaintiff’s complaint regarding when the Diocese’s alleged activity influencing the decedent took place. Further, the complaint contains no allegations of the circumstances surrounding the execution of the decedent’s will or of the Diocese’s connection with it. (Cf., e.g., Herbolsheimer v. Herbolsheimer (1975), 60 Ill. 2d 574, 328 N.E.2d 529 (will in question prepared by attorney retained by fiduciary-beneficiary).) Absent such factual allegations, the complaint is insufficient to state a cause of action for undue influence, and the trial court acted properly in dismissing it.

Affirmed.

WELCH, P.J., and KASSERMAN, J., concur.


author: JUSTICE HARRISON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. JOHN PAUL PHILLIPS, Defendant-Appellee.
    Fifth District
    No. 5—83—0467
    Opinion filed October 22, 1984.
    Rehearing denied November 29, 1984.

      John R. Clemons, State’s Attorney, of Murphysboro (Kenneth R. Boyle, Stephen E. Norris, and Raymond F. Buckley, Jr., all of State’s Attorneys Appellate Service Commission, of counsel), for the People.
    Dennis S. Waks, of Carbondale, for appellee.
   JUSTICE HARRISON

delivered the opinion of the court:

This is a State appeal from two pretrial orders entered by the circuit court of Jackson County. The first order precluded the State from utilizing certain testimony offered by defendant’s psychologist at a prior unrelated trial, on the ground that this testimony was privileged under section 10 of the Mental Health and Developmental Disabilities Confidentiality Act (hereinafter the Act) (Ill. Rev. Stat. 1981, ch. 91V2, par. 810). The second order granted a defense motion in limine which sought to prevent the State from introducing evidence of another offense under a theory of modus operandi. Both orders are appealable by the State. See People v. McQueen (1983), 115 Ill. App. 3d 833, 835-36.

The facts giving rise to the first order can be succinctly stated. In this case, defendant was charged with kidnaping and sexually assaulting a woman in Carbondale. In August 1982, after the charges in this case had been filed, defendant was convicted in Williamson County of attempting to kidnap a woman. At the Williamson County trial, defendant offered an insanity defense. In support of that defense, defendant offered the testimony of Dr. Gordon Plumb, his psychologist, who testified that defendant had an uncontrollable urge to attack women. When asked on cross-examination about the basis for this conclusion, Dr. Plumb indicated, among other things, that defendant told him how he had abducted a woman from a public location in Carbondale. In a motion filed in the instant case, defendant sought to prevent the State from introducing evidence of his statements to Dr. Plumb. Following a hearing, the court granted the motion, finding that defendant’s waiver of the therapist-patient privilege in the Williamson County case did not operate as a waiver in this case.

In Novak v. Rathnam (1983), 119 Ill. App. 3d 847, 457 N.E.2d 158, appeal allowed (1984), 99 Ill. 2d 530, the appellate court for the third district considered the issue presented here, and concluded that waiver of the privilege conferred by the Act in one case did not operate as a waiver in a subsequent case. The court relied on People v. Stufflebeam (1974), 19 Ill. App. 3d 462, 464, 311 N.E.2d 601, in which it was held that waiver of the constitutional privilege against self-incrimination in one proceeding did not operate as a waiver of that privilege in another. The court in Novak also relied on the section of the Act prohibiting blanket and advance consents to the disclosure of information (Ill. Rev. Stat. 1981, ch. 91V2, par. 805(c)), and on the section providing that no agreement to waive any provision of the Act is valid (Ill. Rev. Stat. 1981, ch. 9IV2, par. 814). Novak v. Rathnam (1983), 119 Ill. App. 3d 847, 849.

Upon careful consideration of this issue, we are compelled to disagree with the holding of Novak. While the constitutional privilege against self-incrimination operates to prevent the State from forcing an accused to admit facts tending to establish his own guilt, and thus regulates a fundamental aspect of the relationship between the government and the governed, the privileges of the type under consideration here serve a different purpose. Rather than limit or regulate the power of the State, privileges such as those existing between therapist and patient, attorney and client, and husband and wife operate to encourage candid interaction in certain personal relationships which, in the opinion of the legislature or the court, are best served by the issuance of a societal guarantee that what is said in the course of those relationships shall be secret. Thus, while the State in the former case may not force an accused to admit his crimes in court on the ground that he did so once before (People v. Stufflebeam (1974), 19 Ill. App. 3d 462, 464, 311 N.E.2d 601), a different analysis is applied in cases concerning privileges of the latter type, wherein it is usually held that disclosure of the “secret” by the person benefiting from the privilege operates as a waiver of that privilege (see People v. Simpson (1977), 68 Ill. 2d 276, 281, 369 N.E.2d 1248 (marital privilege); Turner v. Black (1960), 19 Ill. 2d 296, 309, 166 N.E.2d 588 (attorney-client privilege); Gottemoller v. Gottemoller (1976), 37 Ill. App. 3d 689, 696, 346 N.E.2d 393 (psychiatrist-patient privilege)). For these reasons, we believe that the Novak court’s reliance on Stufflebeam is misplaced, and that the principles of waiver applied generally to privileged communications apply with equal force here. Moreover, the sections of the Act relied on by the court in Novak do not address themselves to the situation here, where defendant, by calling Dr. Plumb to testify in the Williamson County trial, caused the once-secret content of his communications with Dr. Plumb to become a matter of public record. Accordingly, the trial court erred in concluding that evidence of defendant’s statements to Dr. Plumb could not be used at the trial of this case, and the court's order to that effect is reversed.

The State next contends that the court erred in granting defendant’s motion in limine regarding evidence of another crime. In granting the motion, the court ruled that the State failed “to show sufficient similarities in fact between the crimes committed in Williamson County Case 82 — CF—9 and the crimes alleged to have been committed by same defendant in this case.” A trial court’s determination regarding admissibility of other crimes will not be disturbed on review unless it constitutes a clear abuse of discretion (People v. Funches (1978), 59 Ill. App. 3d 71, 73, 375 N.E.2d 135). In order for evidence to be admissible against a defendant under a theory of modus operandi, there must be a strong and persuasive showing of similarity between the two crimes; in other words, it must be established that the two crimes share some distinctive features that are not common to most offenses of the type at issue. (People v. Tate (1981), 87 Ill. 2d 134, 141-43, 429 N.E.2d 470.) Here, the court’s conclusion that the State failed to show the requisite similarities between the two crimes is well supported by the evidence. The Williamson County case did not involve a completed kidnaping and sex act, while the instant case did; different knives were used in each case; and the Williamson County assailant attempted to force the victim into his truck, while the assailant in this case entered the victim’s car. Moreover, while rope and a handkerchief were found in defendant’s truck after he was arrested following the Williamson County offense, and while the victim in this case was allegedly blindfolded with a handkerchief and tied with a rope, we cannot say that these factors are so unique to cases of this type as to establish modus operandi. Finally, while the State argues that evidence of defendant’s arrest in Williamson County is admissible even if evidence of his crime there is not, this theory was not advanced at the hearing in the trial court, and is not properly before us on review. People v. Herndon (1982), 105 Ill. App. 3d 167, 170, 434 N.E.2d 10.

For the foregoing reasons, the order of the circuit court granting defendant’s motion to preclude evidence of defendant’s statements to Dr. Plumb is reversed. The order granting defendant’s motion in limine to preclude “other crimes” evidence is affirmed, and this cause is remanded for further proceedings not inconsistent herewith.

Affirmed in part, reversed in part and remanded.

WELCH, P.J., and KARNS, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CRAIG P. ROMERO, Defendant-Appellant.
    Fifth District
    No. 5—83—0545
    Opinion filed September 11, 1984.
    Rehearing denied November 1, 1984.
    Frederick M. Steiger, of Clayton, Karfeld and Steiger, of St. Louis, Missouri, for appellant.
    John Baricevic, State’s Attorney, of Belleville (Kenneth R. Boyle, Stephen E. Norris, and Raymond F. Buckley, Jr., all of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE HARRISON

delivered the opinion of the court:

Craig Romero, defendant, pleaded guilty to residential burglary and was sentenced to 14 years’ imprisonment. Defendant appeals from the denial of his motion to withdraw his plea, alleging that (1) he pleaded guilty based on a misapprehension of law brought about by misrepresentations of the prosecutor, and (2) the court erred in allowing defendant’s trial counsel to testify as to the nature and substance of his conversations with defendant.

The first issue raised by defendant concerns the prosecutor’s indication, prior to the acceptance by the court of defendant’s plea, that the State would attempt to secure payment of restitution and any fine levied against defendant from real property which had been posted as bond for defendant by a friend, Carolyn Bridges. At the guilty plea hearing, the following exchange occurred:

“THE COURT: Mr. Romero, have any promises of any kind or nature been made to you, other than the plea agreement, or any threats been made to you by the State’s Attorney, your attorney, or by any other person, to induce you to make your motion to withdraw your plea of not guilty and enter a plea of guilty?

THE DEFENDANT: Other than the bond, no.

THE COURT: What do you mean, “other than the bond”?

THE DEFENDANT: Well, this bond is being attacked. The person has put up for me, and she is not responsible. She just put it up to just, my bond, to assure my appearance in court. It is my understanding this is being attacked so far as my problems with the Court and she is not responsible for me.

THE COURT: Mr. Durso, have you gone into the matter of the bond with your client?

MR. DURSO [defense counsel]: Yes, we have discussed it at length.

MR. STURGEON [prosecutor]: Your Honor—

THE COURT: Yes.

MR. STURGEON: For the record, and I advised Mr. Durso, we have questioned the legality of it, but I have represented to Mr. Durso all along, and I am representing to the Court now, it is our intention, there was approximately property valued at $200,000 that was placed, that this defendant was free on $100,000 bond. I am going to research whether or not we can attack it.

I never said I would not. I never made any claim. I have never talked to this defendant. It is my intention still to attempt to get the fine and restitution from that property valued at $200,000.

THE COURT: Mr. Romero, do you understand, and I have indicated to you, if you plead guilty to this charge, you could be sentenced to the penitentiary for a term of four to fifteen years, and you could be, in addition, fined up to $10,000, and in addition, you could be ordered to make restitution. Do you understand that?

THE DEFENDANT: I understand that. I just don’t have any money, so he is wanting to attack her property.

THE COURT: Whether that can be done or not is subject to the question first of all, of what the sentence is going to be, number one, and, second, the question is whether or not that bond can be used to satisfy your bond and/or any order of restitution that is made. That will have to be taken up and decided if, in my discretion, I indicate at the sentencing proceeding and at the arraignment for sentencing I am going to levy a fine and/or order restitution.

THE DEFENDANT: I see.

THE COURT: But, the question now is, because of the fact that the Assistant State’s Attorney, Mr. Sturgeon, has indicated that he is going to be making a request for a fine and/or restitution, do you feel that is a threat insofar as you are concerned and that is the only reason you are pleading guilty to this charge?

THE DEFENDANT: No, sir.”

While defendant asserts that the prosecutor’s representations concerning the State’s desire to “attack” the property were such as to render his plea involuntary, the above-quoted portion of the record belies this claim. Both the prosecutor and the court quite clearly indicated to the defendant that there existed some question as to whether the State could attach the property posted as bond; additionally, defense counsel testified at the hearing on the motion to withdraw the plea that he told defendant the State “probably could not” seize the property. Even more important, the prosecutor specifically informed defendant and the court that the State intended to try to seize the property whether or not defendant pleaded guilty. Thus, there was no basis upon which it can reasonably be said that defendant pleaded guilty in order to “save” the property posted by Ms. Bridges. While defendant points out that defense counsel testified that he told Ms. Bridges that the State “might be less vociferous” in its attempt to seize the property if defendant pleaded guilty, the prosecutor’s comment at the plea hearing unequivocally established that such would not be the case. Whether a plea of guilty may be withdrawn rests within the sound discretion of the court, and the court’s exercise of this discretion will not be disturbed unless it appears that the plea was entered due to a misapprehension of facts or law, that defendant has a defense worthy of consideration, or where there is doubt of defendant’s guilt and the ends of justice would be better served by a trial of the case. (People v. Worley (1966), 35 Ill. 2d 574, 576, 221 N.E.2d 267.) Viewing the record here in its entirety, we must con-elude that the court did not abuse its discretion in denying defendant’s motion to withdraw his plea.

Defendant’s second contention, that the attorney who represented him at the plea hearing should not have been permitted to testify as to his conversations with defendant, is also without merit. Defendant’s motion to withdraw his plea alleged that he was advised by his trial counsel that the State would be less likely to seize Ms. Bridges’ property if defendant pleaded guilty, and defendant testified to that same effect. By questioning his attorney’s handling of the case and putting into issue the substance of conversations between himself and his attorney, defendant waived the attorney-client privilege, and the trial court did not err in allowing counsel to testify as to his conversations with defendant. People v. O’Connor (1976), 37 Ill. App. 3d 310, 314, 345 N.E.2d 520.

For the foregoing reasons, the judgment of the circuit court of St. Clair County is affirmed.

Affirmed.

WELCH, P.J., and KASSERMAN, J., concur.


author: JUSTICE CAMPBELL

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PATRICK McGREW, Defendant-Appellant.
    First District (1st Division)
    No. 82—2610
    Opinion filed October 29, 1984.

      Steven Clark, of State Appellate Defender’s Office, and Jeffry S. Spears, of Winston & Strawn, both of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Kevin Sweeney, and Frank G. Zelezinski, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE CAMPBELL

delivered the opinion of the court:

The defendant, Patrick McGrew, was found guilty of murder following a bench trial and sentenced to life imprisonment. On appeal, defendant raises these issues: (1) whether the trial court erred in denying defendant’s motion to suppress evidence obtained from the search of his residence where one co-occupant consented but another co-occupant objected to the search; and (2) whether the trial court erred in finding that the police had probable cause to arrest defendant.

The record discloses that the victim, Mrs. Oral Williams, was found strangled to death in her apartment on April 13, 1982. Dorothy Henderson, a neighbor of the victim, testified that when she was returning from the grocery store at about 12 or 12:30 p.m. on April 13, she noticed a car parked in an unusual manner behind their building, blocking her father’s car. The car was an older model green four-door Ford with yellow fog lights. After she returned to her home, she saw a man come out of the victim’s building carrying two radios and put the radios in the green Ford. She also saw the man leave the victim’s residence with a television. Henderson testified that after she saw the man remove the radios she went to check on the victim’s son. She knocked on the victim’s door and the man answered. When she asked to see the victim, the man told her that the victim was sleeping and would see her later. Henderson returned home and called the police. Before the police arrived, she saw the man leave the victim’s home and drive away.

Officer Roy Isabell testified that he arrived at the victim’s home after receiving the burglary call. He spoke to Dorothy Henderson and to her sister, who had also observed the man, and they gave him a description of the man and the car he was driving. Officer Isabell entered the apartment and found it in disarray. The victim was lying on the floor of the bedroom. She had been strangled with an electrical cord. Detective Dennis McGuire of the Chicago police department arrived at the scene at about 1:30 p.m. He spoke to the Henderson sisters and heard their description of the man. While the officers were in the victim’s apartment, the telephone rang. Isabell answered the phone and spoke to an individual who identified himself as “Pat” and asked if he could help in some way. Isabell told him to call back. Later, the victim’s telephone rang a second time. McGuire asked when defendant had last seen the victim. Defendant told McGuire that he had spoken to the victim that morning and that everything was fine. Defendant also told McGuire that he was going to drive the victim’s son to the hospital but could not because his car had broken down. McGuire asked what type of car he had and defendant replied that he had a green four-door 1974 Ford LTD. Defendant also told the officer his name and address.

Detective McGuire and two other detectives left the victim’s home and went to the address given by the defendant. They observed a green Ford matching the description given by the witnesses parked in front of the defendant’s house. They were unable to observe if the car had yellow lights, because the lights were covered by a grill when they were not activated. After speaking with the defendant and having the defendant show them his car, the officers placed the defendant under arrest and took him to the police station.

McGuire and two other detectives then returned to defendant’s home where they spoke to Preston Teisley. They asked Teisley if they could search the home. Teisley is the common law husband of the defendant’s mother-in-law, Bessie McGrew, the owner of the house. They informed Teisley of the investigation and asked him to consent to a search of the home. Teisley agreed to let them search the house and signed a written consent form. Defendant’s wife, Annette McGrew, who was present for this conversation, testified that at this point she told the police they could not search the house because they did not have a search warrant and would have to wait until her mother got home. She testified that Teisley told her that the officers could search the building, and after Tiesley signed the form the officers began to search. McGuire testified that he did not recall this conversation.

After the officers had searched the first and second floors of the house but found no evidence, they came to the door to the basement. Defendant’s wife stood in front of the doorway and blocked their entrance. She told them they could not go down there until her mother got home. The officers told her that they had permission from Teisley to search the basement, but she still refused to move. Teisley then told her that he had given his permission and therefore she was required to let them go into the basement. Annette testified that the police physically moved her out of the way. McGuire testified that “she reluctantly moved away from the door.”

The officers searched the basement and recovered bloodstained tennis shoes and clothes matching those described by the Henderson sisters. They also found a car battery and two radios. Following the search, Annette was taken to the police station.

At the police station, defendant was given his Miranda rights. He initially denied any knowledge of the homicide. When confronted with the evidence recovered from his basement, however, he admitted being at the victim’s house and seeing her dead but denied killing her. At a second interrogation approximately two hours later, defendant confessed to murdering the victim and agreed to sign a written statement. Defendant stated that he knew the victim had a television set, stereo and radios. He went to her home to rob her because he was in debt for $20. When he went to her home, she let him in. As they were having cake in the kitchen he was able to grab her from the back and choke her. He began to collect her valuables when someone came to the door. He told the party that the victim was sleeping and soon thereafter left without taking the stereo. On his way home he sold the television to pay off his debt and made a profit of $50.

Defendant first contends that the trial court erred in denying defendant’s motion to suppress the evidence seized from his house. Defendant contends that the warrantless search was illegal because a co-occupant’s objections to a search prevails over another co-occupant’s consent. Here, the trial court found that Teisley’s consent to the warrantless search was voluntary and was effective. It is well settled that the consent of one co-occupant who possesses common authority over the premises to a warrantless search is valid as against an absent nonconsenting occupant with whom authority over the premises is shared. United States v. Matlock (1974), 415 U.S. 164, 170, 39 L. Ed. 2d 242, 249, 94 S. Ct. 988, 992-93.

Defendant contends, however, that where two occupants are present and one consents and the other objects, the objecting occupant prevails and the police must seek a search warrant. Defendant points out that this issue is one of first impression in Illinois. Defendant relies upon cases from several other jurisdictions which have considered this issue and determined that the police may not conduct a warrantless search where one of the occupants explicitly objects to the search even though another occupant freely consents. United States v. Robinson (7th Cir. 1973), 479 F.2d 300, 303; Lucero v. Donovan (9th Cir. 1965), 354 F.2d 16, 20-21; Tompkins v. Superior Court (1963), 59 Cal. 2d 65, 378 P.2d 113, 27 Cal. Rptr. 889; Silva v. State (Fla. 1977), 344 So. 2d 559; Dorsey v. State (1967), 2 Md. App. 40, 232 A.2d 900. But see United States v. Sumlin (6th Cir. 1977), 567 F.2d 684.

The State argues that the defendant has waived consideration of this issue by his failure to raise it during the hearing on the motion to suppress evidence seized from the house, at trial or in his post-trial motion. In addition, the State argues that any claim of violation of constitutional rights suffered because the police went ahead with their search may be raised only by Annette McGrew, and that defendant himself lacks standing to raise this issue under the authority of Matlock since Matlock holds that the absent co-occupant cannot complain if a present co-occupant gave consent to a warrantless search. The State also contends that, in any event, the warrantless search of the premises was valid because of exigent circumstances.

Defendant replies that he did, in fact, raise the issue of the validity of the search in his motion to suppress and in his post-trial motion. Defendant also argues that in one of the cases from another jurisdiction, Dorsey v. State (1967), 2 Md. App. 40, 232 A.2d 900, the court allowed the objections of a co-occupant to a search to be raised by an absent co-occupant.

A review of defendant’s arguments at the motion to suppress hearing reveals that he failed to raise the issue of whether Annette’s objections to the search rendered the search illegal. At the hearing defense counsel argued only that Teisley’s consent was not freely given because he was allegedly told by the police that if he did not give his consent they would obtain a warrant anyway and Teisley feared that when they returned they would tear the house apart. Defense counsel stated during argument on his motion to suppress, “The motion to suppress evidence deals with the purported, in our opinion, purported consent of Preston Teisley. We don’t dispute that Mr. Teisley would have had authority to consent ***.” Defense counsel argued that even though Teisley had testified that his consent to the search was voluntary, the circumstances surrounding that consent showed that it was not voluntary. Although during her testimony at the motion to suppress hearing. Annette stated that she did not consent to the search, defense counsel did not mention this point at all during his argument. Further, defendant’s post-trial motion stated only, “The court erred in denying defendant’s MOTION TO SUPPRESS EVIDENCE.”

Issues, including constitutional issues, not raised in the trial court are generally considered waived on appeal and cannot be urged as grounds for reversal on review. (People v. Holloway (1981), 86 Ill. 2d 78, 426 N.E.2d 871.) The Code of Criminal Procedure of 1963 requires a written motion for a new trial specifying the grounds therefore. (Ill. Rev. Stat. 1979, ch. 38, par. 116 — 1.) An ambiguous statement such as was contained in defendant’s motion for a new trial is usually insufficient to preserve specific grounds for appeal. (People v. Foster (1979), 76 Ill. 2d 365, 392 N.E.2d 6.) Failure to raise with specificity the issue posted on appeal denies the trial court the opportunity to correct alleged errors and to give the reviewing court the benefit of the trial court’s judgment. (People v. Irwin (1965), 32 Ill. 2d 441, 207 N.E.2d 76.) Here, the appellate court is hampered by the lack of a finding of fact with respect to whether Annette acquiesced in Tiesley’s consent to the search. In light of the conflicting testimony on that point we cannot assume that one co-occupant consented and the other co-occupant did not consent to the search for the purpose of reaching the interesting issue presented on appeal by defendant. Although a reviewing court may consider plain errors or defects affecting substantial rights which have not been properly preserved for review (People v. Pickett (1973), 54 Ill. 2d 280, 296 N.E.2d 856), we are not convinced that it is appropriate to do so under the facts and circumstances of this case.

Defendant’s second contention is that the police lacked probable cause to arrest him. Testimony at the hearing on defendant’s motion to quash his arrest revealed that three police officers went to defendant’s home immediately upon leaving the murder scene. They observed an automobile matching the suspect’s parked in front of defendant’s home. Teisley admitted the officers into the house, and almost immediately the defendant came down from upstairs dressed only in a bathrobe. The officers asked defendant if they could inspect his car and defendant said yes. Teisley testified that defendant asked if he had to get dressed and one of the officers responded that he was afraid so. Two police officers accompanied defendant upstairs while he dressed. The officers and defendant then went outside to look at defendant’s car. The car’s battery was missing, and defendant told the officers that he had not driven the car since the day before. One of the officers touched the engine block and noticed that it was still warm, indicating that the car had been driven recently. The officers also noticed a chain on the front seat of the car. One of the witnesses at the murder scene told the police that she saw the suspect put a chain in the front seat of his car. The officers then told defendant that he would have to accompany them to the police station for questioning. Defendant became violent. He was restrained, handcuffed and taken to the police station.

Defendant contends that the facts available to the police when they told defendant to get dressed were insufficient to constitute probable cause to arrest. The State argues that the officers’ initial request of the defendant constituted an investigatory detention which may be justified by less than probable cause. (People v. Smithers (1980), 83 Ill. 2d 430, 415 N.E.2d 327.) The State contends that based upon the description of the suspect and the suspect’s car as well as the fact that defendant had called the murder scene and identified himself, the officers had sufficient articulable facts to create a reasonable suspicion that defendant had committed the crime. (People v. Smithers (1980), 83 Ill. 2d 430, 415 N.E.2d 327.) Further, the State asserts that the officers’ conduct in asking defendant to show them his car and in accompanying him while he dressed did not constitute an unreasonable intrusion upon defendant. (People v. Pritchett (1979), 75 Ill. App. 3d 127, 393 N.E.2d 1157.) Probable cause to arrest defendant, the State argues, existed after the officers had observed incriminating evidence in the car. Defendant contends to the contrary that his arrest occurred at the time the police told him to get dressed. Defendant relies upon Officer McGuire’s police report, which stated that when the defendant appeared in his bathrobe, the officers requested that he get dressed and accompany them to the police station. At the hearing, McGuire testified that when defendant first came downstairs they asked him if they could inspect his car, and some time later they asked him to go to the station house. On cross-examination, however, the officer admitted that he either made or adopted the police report.

Defendant argues that any request to go to the police station implies an obligation to do so and, therefore, constitutes an arrest unless the police clearly state that compliance is entirely voluntary. (People v. Creach (1980), 79 Ill. 2d 96, 402 N.E.2d 228.) Therefore, defendant contends whether probable cause to arrest existed must be determined from the facts known to police at the time they entered defendant’s house.

It is evident from the trial court’s consideration of the issue of probable cause that the court thought that an arrest first occurred after defendant had shown the officers his car. The trial court apparently resolved the conflicting testimony as to what was said to the defendant in the prosecution’s favor. The resolution of conflicting evidence is left to the trial court, whose decision will be accepted on review unless clearly unreasonable. (People v. Peterson (1959), 17 Ill. 2d 513, 515, 162 N.E.2d 380, 381.) We are not persuaded that the trial court’s implicit determination of when defendant’s arrest occurred is against the manifest weight of the evidence. People v. Holloway (1981), 86 Ill. 2d 78, 91, 426 N.E.2d 871, 877.

We note that the testimony of other witnesses to the effect that defendant cooperated with the police until after he viewed his car supports the conclusion that defendant was not told to come to the police station until that time. Defendant has not challenged the existence of probable cause to arrest once the officers viewed the automobile, and the record amply supports the trial court’s determination that probable cause existed then. Accordingly, we affirm the trial court’s denial of defendant’s motion to quash his arrest.

Affirmed.

BUCKLEY, P.J., and McGLOON, J., concur.


author: PRESIDING JUSTICE HARTMAN

text:
    NORMAN PIERCE et al., Plaintiffs-Appellants, v. P.J.G. & ASSOCIATES, INC., Defendant-Appellee.
    First District (2nd Division)
    No. 83—2858
    Opinion filed September 25, 1984.
    Rehearing denied November 30, 1984.

      Edwin H. Conger and David L. Coghlan, both of Tenney & Bentley, of Chicago, for appellants.
    Richard J. Puchalski, of Doss, Puchalski, Keenan & Bargiel, Ltd., of Chicago, for appellee.
   PRESIDING JUSTICE HARTMAN

delivered the opinion of the court:

Plaintiff trustees brought an action to recover $2,500 allegedly owed to them by defendant P.J.G. & Associates, Inc. (P.J.G.), under a collective bargaining agreement. The circuit court granted P.J.G.’s motion to dismiss and denied the trustees’ motion to vacate the dismissal. The trustees appeal from both orders.

Plaintiffs are trustees of an employee welfare trust created by a collective bargaining agreement between the Electrical Contractors’ Association of Chicago and Local Union No. 134 International Brotherhood of Electrical Workers. Employers who assent to the agreement are obligated to make certain fringe benefit contributions to the trust. P.J.G. is an employer who has assented to the agreement.

Because of its obligations under the agreement, P.J.G. obtained a bond from Frank B. Hall & Company (Hall) which provided that if defendant failed to make the necessary contributions to the trust pursuant to the agreement, Hall would make such payments with a right of indemnity against P.J.G. The bond, which is not included in the record, also provided a $2,500 deductible on the payment of fringe contributions before Hall makes any payments to the trust.

In August 1980, the trustees demanded payment from Hall under the bond, subtracting the $2,500 from the total amount claimed. On April 9, 1981, they filed the instant complaint against P.J.G. seeking the $2,500 deductible amount outstanding.

The trustees had filed an earlier action against P.J.G. in which they sought liquidated damages (80 Ml 109010). That complaint was dismissed with prejudice on July 9, 1980, upon a finding that the trustees lacked standing to bring an action at law. The trustees’ motion to vacate the order was filed on August 1, 1980, and remains pending.

The trustees raise four issues on appeal corresponding to the grounds upon which the circuit court based its dismissal, which include whether: (1) they are barred from maintaining the present action because of the dismissal of the earlier complaint under the doctrine of res judicata; (2) they are a voluntary unincorporated association which cannot maintain suit in Illinois; (3) State jurisdiction is preempted by the Employee Retirement Income Security Act of 1974 (29 U.S.C. sec. 1001 et seq. (1982)) (ERISA); and (4) they failed to exhaust their administrative remedies under the agreement by first submitting to arbitration.

I

The trustees maintain that they are not precluded by res judicata from bringing the present action because the 1980 judgment was not final by virtue of the pending motion to vacate and because the same claim was not involved in each action. We agree, but for another reason.

Before a judgment can stand as a bar to a subsequent action, it must first be determined whether that judgment was a final determination on the merits. (People ex rel. Scott v. Chicago Park District (1976), 66 Ill. 2d 65, 69, 360 N.E.2d 773.) A dismissal based upon a plaintiff’s lack of standing, as here, does not require a consideration of any substantive issues that may be involved. (People ex rel. Scott v. Chicago Park District (1976), 66 Ill. 2d 65, 70.) The dismissal in 80 Ml 109010 was not on the merits of the case and could not be a bar to the present action. Dismissal of the present cause on res judicata grounds was error and must be reversed.

II

The trustees next assert that the circuit court erred in determining they could not maintain this suit because they were suing on behalf of a voluntary, unincorporated association. The circuit court relied on the Illinois rule that a voluntary unincorporated association cannot sue or be sued in its own name because it has no separate legal existence independent of the members who compose it. (American Federation of Technical Engineers, Local 144 v. La Jeunesse (1976), 63 Ill. 2d 263, 347 N.E.2d 712; Mulligan v. Teamsters Union, Local No. 971 (1978), 59 Ill. App. 3d 587, 375 N.E.2d 891.) Unlike La Jeunesse and Mulligan, however, plaintiffs here are not suing as union members, but as trustees who have a separate, statutorily recognized legal existence, independent of the status of the members who comprise the unincorporated association, allowing them to sue and be sued, an issue recently decided in Pierce v. Chester Johnson Electric Co. (1983), 117 Ill. App. 3d 867, 454 N.E.2d 55, appeal denied (1983), 96 Ill. 2d 565. Plaintiffs here are proper parties to bring this suit. It was error to deny their standing on this ground, which must be reversed.

Ill

The trustees contend that ERISA does not preempt the circuit court’s jurisdiction over this suit, asserting that suits to recover fringe benefit contributions are enforceable under the Labor Management Relations Act of 1947 (29 U.S.C. sec. 185(a) (1982)). Since ERISA specifically exempts from preemption “law[s] of the United States,” it is urged that this claim for fringe benefit contributions, which is governed by the Labor Management Relations Act of 1947, is exempted from preemption and was properly brought in State court. 29 U.S.C. sec. 1144(d) (1982).

The language of the relevant statutes is of primary significance. Section 301 of the Labor Management Relations Act of 1947 provides in pertinent part (29 U.S.C. sec. 185(a) (1982)):

“Suits for violation of contracts between an employer and a labor organization representing employees ***, or between any such labor organizations, may be brought in any district court of the United States ***.”

Section 502 of ERISA provides (29 U.S.C. sec. 1132(e)(1)):

“Except for actions under subsection (a)(1)(B) of this section, the district courts of the United States shall have exclusive jurisdiction of civil actions under this subchapter brought by the Secretary or by a participant, beneficiary, or fiduciary. State courts *** shall have concurrent jurisdiction of actions under subsection (a)(1)(B) of this section.” (Emphasis added.)

The preemption by ERISA in this type of case is contained at 29 U.S.C. sec. 1144(a) (1982):

“Except as provided in subsection (b) of this section, the provisions of this subchapter and subchapter III of this chapter shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan described in section 1003(a) of this title and not exempt under section 1003(b) of this title.”

We find that the provisions in ERISA specifically relate to the claim herein, unlike the general provision in the Labor Management Relations Act of 1947. The appropriate forum for civil actions involving fiduciary responsibilities, as here, is exclusively in Federal courts. (See, e.g., Levy v. Lewis (2d Cir. 1980), 635 F.2d 960, 967. See also Laborers Health & Welfare Trust Fund v. Kaufman & Broad (9th Cir. 1983), 707 F.2d 412; Bricklayers’ Pension Trust Fund v. Taiariol (6th Cir. 1982), 671 F.2d 988; Green v. Indal, Inc. (S.D. Ill. 1983), 565 F. Supp. 805; Hammond v. James W. Griffin Co. (N.D. Ga. 1981), 520 F. Supp. 162; Employer-Teamsters Joint Council No. 84 v. Weatherall Concrete, Inc. (S.D. W. Va. 1979), 468 F. Supp. 1167; Huge v. Maximeadows Mining Co. (N.D. Ala. 1978), 459 F. Supp. 267.) Therefore, the circuit court’s dismissal of the suit on this ground was correct and must be affirmed.

IV

The circuit court’s finding that the trustees were required to arbitrate their claim prior to filing it in a court of law is also identified as error. In light of our disposition of this appeal, we do not reach the merits of this contention. Further, we deny RJ.G.’s request for costs and attorney fees.

For the foregoing reasons, the decision of the circuit court of Cook County is reversed in part and affirmed in part.

Reversed in part; affirmed in part.

STAMOS and DOWNING, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANTHONY GATHINGS et al., Defendants-Appellants.
    First District (2nd Division)
    No. 83—291
    Opinion filed November 7, 1984.
    Rehearing denied November 30, 1984.

      Steven Clark and Richard F. Faust, both of State Appellate Defender’s Office, of Chicago, for appellants.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Jane E. Liechty, and Maureen A. Dahlke, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE HARTMAN

delivered the opinion of the court:

Defendants’ convictions on charges of attempted murder and attempted armed robbery, which arose out of a 1975 shooting incident at the Robert Taylor Homes, were reversed by this court on September 1, 1981, and were remanded for a new trial. (People v. Gathings (1981), 99 Ill. App. 3d 1135, 425 N.E.2d 1313.) Prior to the new trial, defendants moved for discharge pursuant to section 103 — 5 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 103 — 5), the speedy-trial provision. That motion was filed and denied on September 28, 1982. The new trial commenced on October 6, 1982, at which defendants’ motion for a mistrial was granted during the State’s opening statement. Defendants’ next motion, to bar reprosecution on double jeopardy grounds, was denied. Defendants appeal pursuant to Supreme Court Rule 604(f) (87 Ill. 2d R. 604(f)).

Defendants present two issues on appeal: first, whether the State intentionally provoked a mistrial so as to raise a double jeopardy bar to their reprosecution; and second, whether defendants’ speedy-trial rights were violated.

I

Although the double jeopardy clauses of both the United States and Illinois constitutions provide that no person shall be put in jeopardy twice for the same offense (U.S. Const., amend. V; Ill. Const. 1970, art. I, sec. 10), where a mistrial is declared pursuant to a defendant’s request, as in this case, there is no double jeopardy bar to reprosecution. (Oregon v. Kennedy (1982), 456 U.S. 667, 672-73, 72 L. Ed. 2d 416, 422, 102 S. Ct. 2083, 2088; People v. Pendleton (1979), 75 Ill. App. 3d 580, 394 N.E.2d 496.) This is true even in situations in which the defendant’s request is prompted by prosecutorial error. (United States v. Jorn (1971), 400 U.S. 470, 485, 27 L. Ed. 2d 543, 556, 91 S. Ct. 547, 557; People v. Pendleton (1979), 75 Ill. App. 3d 580, 394 N.E.2d 496.) An exception to this rule, postulated by the United States Supreme Court in Oregon v. Kennedy (1982), 456 U.S. 667, 72 L. Ed. 2d 416, 102 S. Ct. 2083, is that where a defendant’s request for a mistrial is granted due to prosecutorial misconduct, double jeopardy will bar reprosecution only if the prosecutor’s conduct was “intended to provoke the defendant into moving for a mistrial.” (Oregon v. Kennedy (1982), 456 U.S. 667, 679, 72 L. Ed. 2d 416, 427, 102 S. Ct. 2083, 2091.) The Kennedy standard has been adopted by this court. People v. Franklin (1983), 119 Ill. App. 3d 899, 906, 457 N.E.2d 1005; People v. Clark (1984), 124 Ill. App. 3d 14, 20-21, 463 N.E.2d 981.

The circumstance which gave rise to the declaration of a mistrial in this case was an asserted violation of the circuit court’s ruling in limine that the fact of the victim’s death could be indicated only as an explanation for the use of a transcript of the victim’s testimony from the original trial. In the State’s opening statement, the prosecutor detailed the facts of the shooting, post-occurrence developments, including a description of the victim’s ensuing injuries and treatment at hospitals, and the victim’s loss of his ability to speak because of that gunshot wound. The prosecutor then observed that there had been a previous trial in this matter and, at the time of the earlier trial, the victim spoke through the voice of a doctor, who interpreted the words that the victim mouthed to the jury from his hospital bed. The prosecutor then stated, in pertinent part:

“*** some three weeks after that trial, Michael [the victim] died and—

MR. STECK [defense counsel]: May I approach the bench, Your Honor.

THE COURT: Take the jury out of the room, please.”

At this point, defense counsel moved for a mistrial, arguing that the prosecutor’s opening statement violated the circuit court order regarding the death of the victim. The circuit court granted defendants’ motion and declared a mistrial.

Defendants urge that the prosecutor’s reference to the victim’s death was an intentional violation of the circuit court’s order and was designed to provoke a mistrial. As evidence of such intent, defendants point to the fact that the circuit court excluded certain photographs offered by the State and to an exchange reflected in a supplement to the record in which the prosecutor expressed the notion that the circuit court judge always believed the defense attorney. Defendants argue that these facts show that the case was going poorly for the State and that the prosecutor was frustrated with the circuit court; therefore, the State intentionally provoked a mistrial satisfying the Kennedy standard and raising a double jeopardy bar to retrial. We disagree.

It is important to note that at the point in the State’s opening statement, in which the reference to the victim’s death was made, defense counsel interrupted in midsentence. The prosecutor may well have been on the verge of explaining that the victim’s death was the reason for the introduction of a transcript of his earlier testimony. This possibility, coupled with the fact that the excluded photographic evidence was not crucial to the State’s case, and that the assertion in the supplement to the record was tenuously supported, militate against a finding of prosecutorial intent to provoke a mistrial. Significantly, the circuit court transferred the case to another court after the mistrial was declared. Upon hearing, the transferee court found that the prosecutor’s remarks were not intended to cause a mistrial, but were based on a good-faith misunderstanding. The Kennedy standard, therefore, has not been satisfied. Accordingly, we affirm the circuit court’s finding that double jeopardy does not bar reprosecution of defendants.

II

The second issue on appeal, whether the circuit court properly denied defendants’ motion for a discharge pursuant to the Illinois speedy-trial provision (Ill. Rev. Stat. 1983, ch. 38, par. 103 — 5), ordinarily is deemed a nonappealable interlocutory order. (People v. Miller (1966), 35 Ill. 2d 62, 219 N.E.2d 475.) Because the appeal on the speedy-trial issue is coupled with an appeal on double jeopardy grounds over which this court has clear jurisdiction (87 Ill. 2d R. 604(f)), we elect to exercise jurisdiction over the speedy-trial issue in pursuance of efficient judicial administration. While not specifically applicable, that policy is evident in Supreme Court Rule 366(b)(2)(v) (87 Ill. 2d R. 366(b)(2)(v), Committee Comments), and in Robbins v. Professional Construction Co. (1978), 72 Ill. 2d 215, 222-23, 380 N.E.2d 786. (See also People v. Berland (1978), 74 Ill. 2d 286, 310, 385 N.E.2d 649; People v. Lilly (1974), 56 Ill. 2d 493, 309 N.E.2d 1, 87 Ill. 2d R. 615(b)(2)).) To require the completion of the new trial before the inevitable review was sought would be unrealistic, uneconomic and a waste of human resources under the circumstances of this case.

On the merits of the speedy-trial issue, we find that defendants’ rights were not violated. Although the circuit court concluded that the term began when the appellate court mandate reversing defendants’ original convictions was spread of record on April 22, 1982, under Illinois law the time for computing a speedy-trial violation begins on the date that the appellate court mandate is filed in the circuit court. (People v. Dodd (1974), 58 Ill. 2d 53, 317 N.E.2d 28; People v. Worley (1970), 45 Ill. 2d 96, 256 N.E.2d 751; People v. Baskin (1967), 38 Ill. 2d 141, 230 N.E.2d 208; People v. Nolan (1981), 102 Ill. App. 3d 895, 430 N.E.2d 345.) In the instant case, therefore, the term began on the mandate filing date, March 18, 1982.

On March 18, 1982, defendants were in custody. The applicable term within which trial should have commenced was 120 days. (Ill. Rev. Stat. 1983, ch. 38, par. 103 — 5(a).) Defendants moved to reinstate bond and demanded a speedy trial on May 21, 1982. Pursuant to the bond motion, one defendant was released from custody on June 14, 1982, and the other on June 24, 1982. Neither defendant repeated his demand for trial upon release. Nevertheless, defendants’ release from custody changed the applicable term during which they were to be brought to trial to 160 days. (Ill. Rev. Stat. 1983, ch. 38, par. 103— 5(b).) Contrary to the State’s contention, defendants’ failure to renew their demand for trial upon their release did not prevent the triggering of the 160-day term, because their demand had been made simultaneously with their bond motion; to require a new demand would be unduly repetitious. See People v. Adams (1982), 106 Ill. App. 3d 467, 471, 435 N.E.2d 1203; People v. Arch (1975), 33 Ill. App. 3d 331, 333, 337 N.E.2d 221.

Under the foregoing circumstances, the issue becomes whether conversion of the 120-day term to a 160-day term gave the State an additional 40 days, or whether the State received a full 160 days from the date of defendants’ release within which to bring them to trial. In People v. Donalson (1976), 64 Ill. 2d 536, 356 N.E.2d 776, the supreme court declared:

“With respect to an offense allegedly committed on or after March 1, 1977, a delay occasioned by the defendant temporarily suspends for the time of the delay the period within which the defendant shall be tried. (Pub. Act 79 — 1237.) With respect to offenses allegedly committed prior to March 1, 1977, however, a delay occasioned by the defendant tolls the running of the statute, and a new statutory period commences to run from the date to which the case had been delayed.” (Emphasis added.) (64 Ill. 2d 536, 540.)

The same approach has been taken in other cases. See People v. Brown (1982), 92 Ill. 2d 248, 442 N.E.2d 136; People v. Gooding (1975), 61 Ill. 2d 298, 335 N.E.2d 769; People v. Lee (1969), 44 Ill. 2d 161, 254 N.E.2d 469; People v. Bevis (1980), 89 Ill. App. 3d 344, 411 N.E.2d 1123; People v. Rhoads (1982), 110 Ill. App. 3d 1107, 443 N.E.2d 673; People v. Bivins (1981), 97 Ill. App. 3d 386, 422 N.E.2d 1044; People v. Gimza (1977), 56 Ill. App. 3d 477, 371 N.E.2d 1135.

Applying the Donalson rule to the case sub judice requires a finding that defendant’s speedy-trial rights were not violated. The offense with which defendants were charged was committed on August 17, 1975. The latter half of the Donalson rule therefore applies: “*** a delay occasioned by the defendant tolls the running of the statute, and a new statutory period commences to run from the date to which the case had been delayed.” (People v. Donalson (1976), 64 Ill. 2d 536, 540.) Of 18 continuances recorded before defendants’ September 28, 1982, speedy-trial motion was ruled upon, one such motion was made on defendants’ behalf, for a continuance, on August 23, 1982. This delay, rather than suspending the term, caused a new term to commence. The trial, which began on October 6, 1982, was well within this new term under Donalson. Further, August 23, 1982, was 159 days after defendants’ original 120-day term began to run on March 18, 1982. Therefore, whether the State received a full 160-day term upon the defendants’ release from custody in June or whether this release simply added 40 days to the 120-day term which started on March 18, 1982, is irrelevant to the disposition of this case. In either situation defendants’ August 23, 1982, continuance tolled the term before it expired and commenced a new one and the trial, having begun on October 6,1982, was within this new term. There was no speedy-trial violation.

For the foregoing reasons, we affirm and remand this case for a new trial.

Affirmed and remanded.

DOWNING and PERLIN, JJ., concur.

      The statement alleged to have been made by the prosecutor, to the effect that the court always believes defense counsel, fails to demonstrate an intent to provoke a mistrial. The photographs which were excluded by the circuit court purported to depict a stairwell and a door which were somehow intended to be used as aids in direct and cross-examination of witnesses. They were excluded for failure to produce upon discovery demand.