author: JUSTICE TRAPP

text:
    COLES-MOULTRIE ELECTRIC COOPERATIVE, Plaintiff-Appellant, v. THE ILLINOIS COMMERCE COMMISSION et al., Defendants-Appellees.
    Fourth District
    No. 4—84—0412
    Opinion filed March 29, 1985.
    Modified on denial of rehearing May 3, 1985.

      Jon W. DeMoss, of Springfield, and William A. Sunderman, of Brainard, Bower & Kramer, of Charleston, for appellant.
    Neil F. Hartigan, Attorney General, of Springfield (Hercules F. Bolos, Special Assistant Attorney General, and Steven G. Revethis and John P. Kelliher, Assistant Attorneys General, of Chicago, of counsel), for appellee Illinois Commerce Commission.
    William S. Hanley, of Sorling, Northrop, Hanna, Cullen & Cochran, Ltd., of Springfield, for appellee Central Illinois Public Service Company.
   JUSTICE TRAPP

delivered the opinion of the court:

The plaintiff, Coles-Moultrie Cooperative (CM), appeals a circuit court order affirming a decision of the Illinois Commerce Commission (Commission) that CM and defendant Central Illinois Public Service Company (CIPS) have an equal right to provide electric service to customers residing within a particular area.

The area as to which the parties dispute the right to furnish electricity is located immediately north of Illinois Route 133 and east of Interstate Highway 57, and is known as “Industrial Estates.” The first electrical service on this tract of land apparently commenced in September 1968, when CIPS began providing service to a concrete mixing plant located there, which provided concrete for the construction of Interstate 57. The next electrical service in the area began on March 3, 1969, when CM began providing power for use in the construction of a building for G&S Services (G&S). Prior to CM’s commencing this service, G&S applied to CIPS for electrical service, but was referred to CM.

On March 17, 1969, the city of Areola annexed the Industrial Estates area. Prior to annexation, CIPS had apparently ceased providing service to the concrete mixing plant. Shortly after annexation, a dispute developed between CM and CIPS as to which of them was entitled to permanently serve the G&S premises. In 1970, the Commission resolved this dispute in favor of CM, holding that it has the exclusive right to serve G&S.

Between April 1970 and March 1983, CIPS connected eight commercial electricity customers in the Industrial Estates area, and CM connected one additional commercial customer as well as some mobile homes in that area.

The events which form the basis for the present dispute began in 1980 when the Sukup Manufacturing Company began construction of a building in Industrial Estates. During construction of the Sukup building, CM provided temporary service to the premises by means of a circuit from the G&S building. On April 30, 1981, pursuant to section 7 of the Electric Supplier Act (ESA) (Ill. Rev. Stat. 1983, ch. 1112/3, par. 407), CM provided CIPS with a notice of its intent to construct a permanent distribution line to serve Sukup. On the same day, CIPS wrote Sukup, describing the method by which it proposed to serve its premises. On the following day, a Sukup representative submitted a written request for electric service to CIPS, and CIPS commenced installation of facilities to provide that service on the same day.

On May 5, 1981, CM obtained an ex parte injunction prohibiting CIPS from serving Sukup, but this injunction was dissolved seven days later. On May 15, 1981, CIPS completed installation of facilities to serve Sukup, and has provided electricity to the Sukup premises since that date.

CIPS is the holder of a 75-year franchise, granted October 1, 1945, entitling it to “construct, maintain and operate within [Areola’s] corporate limits as the same exists or may hereafter be extended *** an electric light, heat and power system ***.” Also, CM is entitled to provide electricity to limited areas of Areola, pursuant to a 25-year franchise granted June 3, 1969. The areas of Areola to which CM may serve are described as follows:

“[A]ll areas, tracts and premises heretofore annexed to the City of Areola, in which area, tract or premise there are existing lines of Coles-Moultrie Electric Cooperative on the effective date of this ordinance. The rights granted herein shall furthermore extend to all areas, tracts and premises hereafter annexed to said City in which: (1) Coles-Moultrie Electric Cooperative has an existing line or lines at the time of such annexation; or, (b) Coles-Moultrie Electric Cooperative would be entitled to serve by virtue of the provisions of the Electric Supplier Act, as enacted by the 74th General Assembly of the State of Illinois, and approved on July 2, 1965, if such territory had not been annexed; or, (c) no electric service is being rendered by any supplier of electric energy at the time of such annexation.”

On May 20, 1981, CIPS filed a complaint with the Commission, requesting: (1) that CM be ordered to cease and desist from representing to customers other than G&S that it has the exclusive right to extend its lines to provide electricity to customers within the corporate limits of any incorporated municipality in which CIPS had a valid franchise as of the ESA’s effective date; and (2) that the Commission declare the parties’ rights pursuant to the ESA, the Commission’s order finding that CM is exclusively entitled to serve G&S and the franchises granted by Areola, and in connection therewith find that (a) with respect to the Industrial Estates area, either CM or CIPS may provide electricity to any customer in the area, provided that the supplier has permission from the city to provide such service, (b) that for the duration of its franchise, CIPS “has the right to extend its lines for providing electric service within the territorial limits of the municipality of Areola as they may be extended from time to time” without further necessity for Commission approval, and (c) “that for purposes of this Complaint being a timely response to” CM’s notice of intent to serve Sukup, the Commission find that it lacks jurisdiction under the ESA to determine which of the parties is exclusively entitled to serve the Sukup premises. In its answer, filed June 8, 1981, CM denied the salient allegations of CIPS’ complaint and requested a finding that CM, and not CIPS, is entitled to serve the Sukup premises.

In a decision filed March 22, 1983, the Commission held that both CM and CIPS are entitled to serve customers (other than those on the G&S premises) located in the Industrial Estates area; that CM had ample foundation for sending CIPS a notice of intent to serve Sukup (thus rejecting CIPS’ jurisdictional argument); and that CM’s conduct in informing Sukup that it had an alleged exclusive right to serve its premises did not warrant corrective action.

On April 22, 1983, CIPS filed a complaint in administrative review, requesting reversal of the Commission’s decision on the basis that the findings that CM had ample foundation for sending CIPS its notice of intent to serve Sukup and that CM’s conduct did not warrant corrective action were against the manifest weight of the evidence, and on the basis that the Commission’s order failed to make any findings of facts or conclusions of law as to the propriety of CM’s obtaining a preliminary injunction in an ex parte proceeding. (The complaint which CIPS filed with the Commission requested no specific relief as to the latter matter.) On April 28, 1983, CM filed a motion to dismiss CIPS’ complaint, and also filed a countercomplaint requesting reversal of the Commission’s decision on grounds, inter alia, that CM is exclusively entitled to serve Sukup, that the Commission’s allowing CIPS to serve Sukup resulted in wasteful duplication of CM’s existing lines, and that the Commission’s decision, contrary to the intent of the ESA, gives electricity customers in the Industrial Estates the right to change suppliers whenever they wish.

On December 5, 1983, the circuit court dismissed with prejudice CIPS’ complaint for administrative review and realigned the parties in that CM became the plaintiff and CIPS the defendant in administrative review. The circuit court affirmed the Commission’s decision on May 8,1984.

Reduced to their most elemental terms, the positions of the parties to this appeal are relatively straightforward — CIPS and the Commission contend that both CIPS and CM are entitled to serve the Industrial Estates area (with the exception of the G&S premises) and that electricity customers (other than those on the G&S premises) located in that area may decide for themselves by which of the two suppliers they wish to be served. CM, on the other hand, asserts that by virtue of its serving G&S when the Industrial Estates area was annexed to Areola, it is exclusively entitled to serve all electricity customers residing in the area.

A brief overview of the regulatory scheme applicable to electricity suppliers is essential to an understanding of the issues involved in the case at bar. Illinois municipalities have long had discretion to grant (or to refuse to grant) franchises to electricity suppliers. This power derives from the right of municipalities to control and regulate the use of their streets. (City of Geneseo v. Illinois Northern Utilities Co. (1941), 378 Ill. 506, 39 N.E.2d 26, cert, denied sub norm. Elinois Northern Utilities Co. v. City of Geneseo (1942), 316 U.S. 670, 86 L. Ed. 1746, 62 S. Ct. 1046.) The City of Geneseo decision has been interpreted as establishing that the power of municipalities to regulate the use of their streets is paramount to the power of the Commission to regulate public utilities. Note, Municipal Corporations — Licensing Public Utilities For Use of Streets, 1950 U. Ill. L. E 295.

Section 55 of “An Act concerning public utilities” (Ill. Rev. Stat. 1983, ch. 1112/3, par. 56) provides that a public utility must obtain from the Commission a certificate of convenience and necessity before constructing a new plant, new equipment, etc., which is not in substitution of any such existing facilities or “in extension thereof or in addition thereto,” except “with respect to any matter as to which [a public utility] has received the authorization or order of the Commission under the Electric Suppliers Act.” The rates of public utilities are also subject to regulation by the Commission. Ill. Rev. Stat. 1983, ch. 1112/3, par. 36.

Electric cooperatives are not “public utilities” as defined in “An Act concerning public utilities” and thus are not subject to regulation by the Commission (Ill. Rev. Stat. 1983, ch. 1112/3, par. 10.3), except to the extent set forth in the ESA (Ill. Rev. Stat. 1983, ch. 1112/s, pars. 401 to 416). Furthermore, cooperatives are not entitled to be heard or otherwise appear in Commission proceedings regarding authorization for power plant construction or matters as to which a remedy is available under the ESA. Ill. Rev. Stat. 1983, ch. 1112/3, par. 56.

The ESA, which became effective July 2, 1965, encourages electricity suppliers to provide for the delineation of areas of service by mean of contracts between competing suppliers specifying areas of service (Ill. Rev. Stat. 1983, ch. 1112/3, pars. 402, 406), and generally requires that electricity suppliers whose lines are in close proximity to those of other suppliers provide the Commission with maps of their lines. (Ill. Rev. Stat. 1983, ch. 1112/s, par. 404.) The ESA further provides that electricity suppliers may continue serving premises which they were serving, had contracted to serve, or as to which they had discontinued service within 12 months of the ESA’s effective date if service facilities were still located on the premises at that time. No supplier may construct new or extend existing lines to serve a premises which another supplier is entitled to serve without the written consent of the other supplier “subject to the approval of the Commission as to such consent, if required.” Ill. Rev. Stat. 1983, ch. 1112/3, par. 405.

Also, a supplier may not generally construct new or extend existing lines unless it gives written notice to any other supplier or suppliers who would be adversely affected by such action. The most significant exceptions to this requirement are (1) those delineated in section 5 of the ESA (Ill. Rev. Stat. 1983, ch. 11142/s, par. 405), such as where there was existing service or a contract to provide service on the ESA’s effective date or where there were on the ESA’s effective date electricity supply facilities on a premises as to which service had been discontinued within 12 months of that date; (2) situations in which a supplier wishes, for the purpose of furnishing a customer with service, to extend a line with voltage capacity of 600 or less for a distance of 300 feet or less, provided that the extension “does not make the service of that supplier any nearer to the existing lines of another supplier than at the effective date of this Act;” and (3) in the case of public utilities, situations where there are no lines of an electric cooperative in the county or in a county adjacent to the county where the line extension is to be made or where the extension will be located more than five miles away from an existing line of an electric cooperative. (Ill. Rev. Stat. 1983, ch. 1112/s, par. 407.) If a supplier files a complaint with the Commission after having received a notice of intent to serve from a competing supplier, the Commission must hear the parties’ positions and then make a determination as to which is entitled to furnish the proposed service. Ill. Rev. Stat. 1983, ch. 212/3, par. 408.

A separate provision of the ESA (section 14) (Ill. Rev. Stat. 1983, ch. 1112/3, par. 414) applies to electricity supplier line extensions within municipalities. This section states that except for the provisions which allow suppliers to continue serving premises which they had been serving or had agreed to serve on the ESA’s effective date and to resume service to premises as to which they had discontinued service within 12 months of the ESA’s effective date but still had equipment located on the premises as of that date, the ESA provisions as to the necessity of obtaining written permission to serve premises which other utilities are entitled to serve and as to providing notices of intent to serve to utilities which would be adversely affected by proposed line extensions are inapplicable to areas included in municipalities. Moreover, a supplier which is serving in an area annexed to or which is “otherwise located within an incorporated municipality” may continue to furnish service to premises in that area which it was serving at the time of the incorporation or annexation, subject to three provisions as to line extensions within the municipality, which are unimportant in view of our disposition of this matter.

Section 14 of the ESA further provides that an electricity supplier needs no permission to extend its lines within a municipality to the extent that on the ESA’s effective date it had permission from either the municipality or the Commission or “as a matter of law” to so extend its lines, “but any such authorization must [have been] lawfully in effect” on the ESA’s effective date.

The first question which we consider is the effect on the dispute before us of the last-mentioned portion of section 14 of the ESA. At the outset, it should be recalled that the franchise granted CIPS by Areola provides that it is applicable to the entire corporate limits of the city, “as the same now exists or may hereafter be extended.”

CIPS and the Commission contend that the language of section 14 of the ESA, and of CIPS’ franchise, quoted immediately above, exempts CIPS from obtaining any further permission for line extensions within the corporate limits of Areola. CM asserts that the statutory language on which CIPS and the Commission rely is inapplicable because on the ESA’s effective date CIPS was not authorized to serve the Industrial Estates. CM’s premise for this assertion is that a franchise purporting to grant a public utility the right to serve areas not yet a part of the city would have constituted an illegal attempt to enact an ordinance having extraterritorial effect.

We deem the view of CIPS and the Commission to represent the better position. It is true, as CM points out, that a municipal ordinance can have no extraterritorial effect. (E.g., Commercial National Bank v. City of Chicago (1982), 89 Ill. 2d 45, 432 N.E.2d 227; Dean Milk Co. v. City of Aurora (1949), 404 Ill. 331, 88 N.E.2d 827; City of Rockford v. Hey (1937), 366 Ill. 526, 9 N.E.2d 317.) However, virtually all of the cases which so hold involved an attempt to give present effect to an ordinance in an area not at that time a part of the municipality which sought to enforce the ordinance. In the instant case, by contrast, the parties make no contention that the franchise ordinance was effective in the Industrial Estates area prior to its annexation by Areola, and the ordinance could not have had such effect. Rather, the ordinance became applicable to Industrial Estates only when Areola annexed that area. Upon annexation, no further legislative action was necessary in order for the ordinance to be applied to the Industrial Estates, for when a municipality annexes new territory, its ordinances automatically become applicable to the annexed area. People ex rel. City of Chicago v. Chicago Telephone Co. (1906), 220 Ill. 238, 77 N.E. 245; City of Highland Park v. Calder (1932), 269 Ill. App. 255.

CM further contends that the last phrase of the portion of section 14 of the ESA on which CIPS and the Commission rely, providing that authorization to extend lines “must have been lawfully in effect [at the time of the ESA’s enactment],” requires a holding that CIPS was not, at the ESA’s effective date, authorized to extend its lines into areas subsequently annexed to Areola. In our view, however, this language relates only to situations where there was no franchise whatsoever validly in effect on the ESA’s effective date, such as where an agreement in principal as to a franchise had been reached, but the franchise had not yet been executed.

CM also places reliance on section 11 — 117—1 of the Illinois Municipal Code (Ill. Rev. Stat. 1983, ch. 24, par. 11 — 117—1), which requires Commission approval prior to a municipality’s acquiring by eminent domain property outside of its boundaries for use in the production of electricity. CM asserts that this provision is indicative of a legislative intent that municipalities exercise no extraterritorial control over electrical systems. However, as previously indicated, the franchise at issue here involves no exercise of extraterritorial authority; rather it provides for the exercise of franchise rights only as to territory included within municipal limits at either the time of its enactment or at future dates.

Also, in support of its argument that CIPS does not have unbridled discretion to extend its lines within Areola’s city limits, CIPS cites section 2.1 of the ESA:

“It is declared to be the public policy of this State, pursuant to paragraphs (h) and (i) of Section 6 of Article VII of the 1970 Illinois Constitution, that, except as otherwise provided in this Act, any power or function set forth in this Act to be exercised by the State is an exclusive power or function and such power or function may not be exercised concurrently, either directly or indirectly, by any unit of local government.” (Ill. Rev. Stat. 1983, ch. 1112/3, par. 402.1.)

In our opinion, this provision makes it clear that those matters committed to the Commission’s discretion by the ESA are matters for the Commission and not municipalities to determine. However, the second paragraph of section 14 of the ESA clearly removes the extension of electric lines pursuant to franchises in existence on the ESA’s effective date from the control of the Commission and vests sole authority as to such extensions in municipalities.

In sum, on the ESA’s effective date, CIPS possessed authorization to extend its lines as Areola’s boundaries expanded. That authority does not run afoul of the prohibition against extraterritorial ordinances, because CIPS may extend its lines into areas not within Areola on the ESA’s effective date only upon the actual annexation of new territory to the city. A contrary result would have the absurd consequence of requiring the granting of new utility franchises every time the smallest piece of territory is annexed to a municipality. Such could not have been the legislative intent.

CM .also contends that the first part of the second sentence of the first paragraph of section 14 gives it the exclusive right to serve the Industrial Estates:

“An electric supplier which is serving in an area which has been or hereafter becomes annexed to or otherwise located within an incorporated municipality may continue to furnish service within such annexed or otherwise incorporated area to the premises which it is serving at the time of such annexation or incorporation ***.” (Ill. Rev. Stat. 1983, ch. 1112/s, par. 414.)

The gravamen of this portion of CM’s argument is that since Nell Van Voorhis Smith owned the entire tract which later became known as Industrial Estates at the time that service to G&S began, the entire tract constituted a single premises which CM was serving at the time of its annexation to Areola. Therefore, CM argues that it has an exclusive right to serve the entire tract and all present and future and customers thereon pursuant to the above-quoted language contained in section 14.

For purposes of the ESA, “premises” is defined as:

“[A] physical area (a) which, except for any intervening public or private rights of way or easements, constitutes a single parcel or unit and (b) which a single customer owns, uses or in which it has some other interest in connection with receiving service at one or more points of delivery.” (Ill. Rev. Stat. 1983, ch. 1112/3, par. 403.12.)

“Customer” means:

“[A]ny person receiving electricity for any purpose from an electric supplier.” (Ill. Rev. Stat. 1983, ch. 1112/3, par. 403.3.)

Finally, a “person” is:

“[A]n individual, corporation, partnership, electric cooperative, public utility, association, joint stock company, trust, incorporated municipality, municipal corporation, and any governmental entity or political subdivision thereof.” Ill. Rev. Stat. 1983, ch. 1112/3, par. 403.11.

An analysis of the language of the provisions defining premises and customer for ESA purposes, juxtaposed with the evidence presented to the Commission, belies CM’s contention that it possesses an exclusive right to serve Industrial Estates. A premises is defined as, inter alia, a single parcel or unit which a single customer uses. A customer may be an individual, corporation or sole proprietorship. Obviously there can be only one customer on a particular parcel or unit of land, and that customer is the business entity, governmental entity or natural person or group of natural persons having the predominate interest in obtaining electrical service on the premises. If the customer is a group of natural persons, such as a family, each group member must have a co-equal interest in obtaining electrical service at that location, and the group may not constitute an organization of a type which has traditionally been regarded as a business entity, such as a partnership.

In the present case, the evidence does not clearly establish whether G&S was a corporation or an unincorporated partnership at the time that CM first began providing it with electricity. It is also unclear whether Ms. Smith had an interest in G&S at that time and what, if anything, the extent of her interest was. What organizational structure G&S possessed at the time it began receiving electricity from CM and what, if any, interest Ms. Smith owned therein is, however, unimportant for our purposes here. What is important is that G&S was operating at that time as a separate business entity, was at least in part owned by persons other than Ms. Smith, and an identifiable portion of the tract was set apart for G&S’s use. As the occupant of the premises at which CM began providing service, G&S, as a business entity, had an interest superior to that of any of its owners in obtaining electrical service at that site. Since G&S, and not Ms. Smith, was thus the customer to which CM began providing service in March 1969, and G&S did not at that time own the Industrial Estates area in its entirety, the Commission correctly held that CM’s exclusive service rights under the second sentence of the first paragraph of section 14 are limited to the G&S premises.

Both parties also raise numerous contentions as to the relevance and applicability of the portions of the first paragraph of section 14 describing situations in which the Commission and/or municipal approval is required for electricity supplier line extensions within municipalities. Because of our decision, we need not address these arguments.

CM further asserts that a decision that both it and CIPS are entitled to compete for customers within Industrial Estates would run counter to a public policy clearly enunciated by the legislature and the courts, that duplication of facilities on the part of electricity suppliers is to be avoided. In support of this contention, CM points out that its lines almost surround the Sukup premises, and that CIPS was able to serve Sukup only by constructing a much longer line than CM would have had to construct in order to serve that establishment.

In the two cases on which CM relies in support of this assertion (Illinois Power Co. v. Illinois Commerce Com. (1968), 39 Ill. 2d 406, 235 N.E.2d 614; Coles-Moultrie Electric Cooperative v. Illinois Commerce Com. (1979), 76 Ill. App. 3d 165, 394 N.E.2d 1068), the courts rejected requests that particular tracts of land be divided between competing electricity suppliers. Instead, the courts held that the right to serve the disputed tracts resided in one supplier exclusively. In Coles-Moultrie, this court stated, “Our reading of the [Electric Supplier] Act reveals that one of its express purposes was to avoid duplication of facilities.” (76 Ill. App. 3d 165, 166, 394 N.E.2d 1068, 1069.) However, neither of these cases involved parcels of land which were within municipalities. While the legislature has mandated that electricity suppliers retain the right to serve specific premises which they are serving at the time an area is annexed to a municipality and that the Commission has some authority to regulate the service areas of suppliers outside municipalities, the regulation of service areas of electricity suppliers within municipal boundaries has, with the exceptions stated in section 14 of the ESA, been left to the municipalities through use of the franchise power.

There is nothing in the statutes or applicable judicial decisions which prevents a municipal government from rejecting the policy of minimizing duplicative electrical service facilities by granting franchises which enable more than one electricity supplier to compete for customers within the same area. Moreover, such a policy decision, viewed in perspective, is not nearly as extraordinary as CM’s arguments before this court would lead one to believe. It is indeed true that in recent years the distribution of electricity has increasingly assumed the nature of a regulated monopoly, with only one supplier per geographic area. This has not, however, been a universal phenomenon. (See C. E Phillips, Jr., The Economics of Regulation: Theory and Practice in the Transportation and Public Utility Industries 551 (1969); see generally Kentucky Utilities Co. v. Farmers Rural Electric Cooperative Corp. (Ky. 1962), 362 S.W.2d 498; Yellowstone Valley Electric Cooperative, Inc. v. Montana Power Co. (1968), 150 Mont. 519, 437 P.2d 5; Central Power & Light Co. v. Public Utility Com. (Tex. 1983), 649 S.W.2d 287.) Permitting two electricity suppliers to compete for customers in the same area may, in fact, be desirable where one of the competitors is a public utility, subject to utility commission regulation as to rates, etc., and the other competitor is an electric cooperative, whose rates are not subject to regulation, but in which the member-customers have a direct voice in management. In such a situation, some customers may, for reasons of their own, prefer to be served by a regulated public utility, while others may prefer an unregulated but customer-controlled cooperative. (See Clearwater Power Co. v. Washington Water Power Co. (1956), 78 Idaho 150, 299 P.2d 484; In re Otter Tail Power Co. (N.D. Pub. Serv. Com. 1965), 58 Pub. Util. Rep. 3d (PUR) 267.) In sum, we conclude that there is no legal authority which explicitly precludes a municipality from granting franchises to two electricity suppliers to serve the same area, and that the city of Areola’s issuing franchises which permit both CM and CIPS to serve Industrial Estates was not a manifest abuse of the city’s franchise power.

Finally, CM asserts that by virtue of its service upon CIPS of an intent to serve notice with respect to the Sukup premises, pursuant to section 7 of the ESA (Ill. Rev. Stat. 1983, ch. par. 407), it should have been permitted to serve Sukup during the pendency of these proceedings. However, as CIPS correctly points out, CM does not specifically assert that it is entitled to money damages on the basis of deprivation of its alleged right to serve Sukup during that period. Therefore, CM’s request that we address this issue amounts to a request for declaratory relief, which may not properly be awarded in an administrative review action. Ill. Rev. Stat. 1983, ch. 110, par. 3 — 111.

Finding no merit in any of CM’s contentions, we affirm the decisions of the circuit court and the fllinois Commerce Commission.

Affirmed.

GREEN, RJ., and MILLS, J., concur.


source: Caselaw Access Project

author: JUSTICE STOUDER

license: Public Domain

text:
    ARTHUR R. MILLER, Plaintiff-Appellant, v. RAY DALEY, Defendant-Appellee.
    Third District
    No. 3—84—0375
    Opinion filed March 21, 1985.
    Keith K. Kost, of Kost & Kost, of Lewistown, for appellant.
    Ross E. Morris, of Lewistown, and John J. McCarthy, of Canton, for appellee.
   JUSTICE STOUDER

delivered the opinion of the court:

This appeal arises from a suit brought by Arthur Miller, a onetime tenant of Canton township, against Ray Daley, who was at the time this incident occurred the Canton township road commissioner. The complaint alleges among other things that during the pendency of a forcible entry and detainer suit the defendant padlocked the restroom door which was the only restroom facility available for Miller’s use in the apartment he was then leasing from Canton township. As a result of being wrongfully deprived of his use of the restroom facility while the forcible entry and detainer suit was pending — a period of at least seven months — he suffered damages to his possessions and mental anguish and embarrassment. Count II of the complaint alleges that this wrongful action on the part of defendant was intentional, wilful and wanton and asks for punitive damages. The trial court dismissed the complaint, finding it was barred by res judicata because plaintiff had an opportunity to litigate this matter in a former action. The former action to which the trial court was referring was a forcible entry and detainer suit filed by Canton township in which Miller counterclaimed for possession.

The sole issue before us on appeal is whether this claim should have been litigated in the previous forcible entry and detainer suit and is, therefore, barred by the doctrine of res judicata. Because we find that section 9 — 106 of the Civil Practice Act precluded this claim from being brought in the former proceeding, we will not address the issue raised and argued at length by both parties as to the relationship of defendant and Canton township.

The Civil Practice Act governs forcible entry and detainer proceedings (Ill. Rev. Stat. 1983, ch. 110, par. 9 — 101 et seq.) and speaks to what matters are permitted to be brought as part of such a proceeding as well as matters Which are precluded in a counterclaim in an eviction proceeding. Section 9 — 106 provides as follows: “Sec. 9 — 106 Pleadings and Evidence.

On complaint by the party or parties entitled to possession of such premises being filed in the circuit court for the county where such premises are situated, stating that such party is entitled to the possession of such premises *** and that the defendant * * * unlawfully withholds the possession thereof from him, her or them, the clerk of the court shall issue a summons.
*** No matters not germane to the distinctive purpose of the proceeding shall be introduced by joinder, counterclaim or otherwise. However, a claim for rent may be joined in the complaint, and judgment may be entered for the amount of rent found due.” (Ill. Rev. Stat. 1983, ch. 110, par. 9 — 106.)

Clearly, this provision does not require joinder of any claim unrelated to possession of the premises to which the above statute applies.

The distinct purpose of the forcible entry and detainer proceeding is to determine only who should be in rightful possession. As the Illinois Supreme Court stated in Rosewood Corp. v. Fisher (1970), 46 Ill. 2d 249, 263 N.E.2d 833, quoting the court in Bleek v. Cos-grove (1961), 32 Ill. App. 2d 267, 272, 177 N.E.2d 647: “ ‘Forcible entry and detainer is a summary statutory proceeding to adjudicate rights to possession and is unhampered and unimpeded by questions of title and other collateral matters not directly connected with the question of possession.’ ” (Rosewood Corp. v. Fisher (1970), 46 Ill. 2d 249, 255, 263 N.E.2d 833, 837.) Unlike the situation in Rosewood, where the counterclaim in the forcible entry and detainer proceeding asked the court to determine the validity of contract provisions directly affecting which party had the right to possession, the question here is whether Miller is entitled to recover damages, for the damage to his property and mental distress and is not related to the question of which party is entitled to rightful possession. Therefore, we hold that this claim could not have been previously litigated because of the statutory preclusion of section 9 — 106.

We, therefore, reverse the decision of the circuit court of Fulton County and remand with instructions to proceed in accordance with this decision.

Reversed and remanded.

HEIPLE, P.J., and WOMBACHER, J., concur.


text:
      In re D.M., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. D.M., Respondent-Appellant).
    Third District
    No. 3—84—0489
    Opinion filed March 28, 1985.
    Robert Agostinelli and Jean Herigodt, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    John X. Breslin and Terry A. Mertel, both of State’s Attorneys Appellate Service Commission, of Ottawa, for the People.
   JUSTICE STOUDER

delivered the opinion of the court:

The respondent minor, D.M., appeals from an adjudication finding him guilty of the offense of battery. Following the adjudication, the minor was committed to the Juvenile Division of the Department of Corrections (DOC). On appeal, the minor argues that he was not proved guilty of battery beyond a reasonable doubt. The respondent’s second contention concerns whether the juvenile court had jurisdiction for the dispositional hearing. We affirm.

The minor was charged with two counts of aggravated battery on May 15, 1984. (Ill. Rev. Stat. 1983, ch. 38, pars. 12 — 4(a), 12 — 4(b)(1).) The petition listed the 15-year-old minor and his mother and father as respondents. His mother received notice of the petition and the hearing date through personal service of a summons. Notice to the father, a Chicago resident, was first attempted through service by certified mail. That service was returned unclaimed.

The minor appeared in court with his mother on June 28, 1984, and denied the allegations. Service was again attempted on the father by certified mail on June 29, 1984, but this notice was also returned unclaimed. Personal service was then attempted at the father’s last known Chicago address, but that too failed.

On July 11, 1984, the minor, represented by counsel, and his mother appeared for the adjudicatory hearing. Various facts and events were disputed by the witnesses. The State began with testimony of the victim, 18-year-old Quincy Blake. He stated that on May 12, 1984, in the area of Taft Homes, he and three other boys observed D.M. walking his bike through the Taft grounds. D.M.’s presence angered the group because D.M. belonged to a rival gang.

Blake then walked across the street to confront D.M. According to Blake, D.M. slapped him, thereby causing a wrestling match to ensue between the two of them. They wrestled for about five minutes. At some point, Blake felt something cutting his back, then his left arm, and, finally, an area above his left ear. Some bystanders then separated the boys. Blake stated he saw D.M. throw an object which looked like a straight razor into the street. No weapon, though, was ever recovered.

Blake’s injuries required 29 stitches in his back and six stitches in his head. One of Blake’s companions that night testified next for the State. He said that D.M. and Blake were talking to each other and then began fighting. After the two boys were separated, another boy threatened D.M. with a baseball bat until D.M. threw what appeared to be a utility knife into the street. This testimony completed the State’s evidence.

An adult bystander then testified for the defense, saying that she saw a group of eight to 12 boys standing around D.M. after the fight with Blake. This witness observed one of the boys strike D.M. with an object while he was still on the ground. She did not see D.M. with a weapon.

A 14-year-old boy testified next for the defense, saying he was present with Blake and others when D.M. first appeared with his bike. The victim, however, had stated earlier that the 14-year-old boy had not been there that night. According to the witness, Blake approached D.M. from behind, armed with two knives which he dropped when they began fighting. One of Blake’s friends then picked up a knife and attempted to strike D.M. The boy missed D.M., cutting Blake instead. This witness claimed that D.M. did not use any weapon in his fight with Blake, that after the fight Blake and the other boys agreed to blame D.M. for the wounds Blake received. This witness concluded by saying he had not talked with D.M. about his testimony. The final witness for the defense was D.M. When the fight with Blake took place, he had been on authorized absence from the Juvenile Division of DOC for prior incidents involving theft. As Blake approached him that night, D.M. continued to walk, but Blake struck at him with a razor. They began to wrestle and Blake dropped a knife he had been holding. D.M. released Blake when someone threatened him with a meat cleaver and someone else put a gun to his head. D.M. then stated that he was hit on the head with the cleaver, and the other boys began to kick him. An older man appeared and pulled D.M. away from the group. According to D.M., he was not armed, and he did not know who inflicted Blake’s injuries.

The trial court concluded that the evidence was insufficient to prove great bodily harm and that the utility knife was a dangerous weapon. The court found D.M. guilty of the lesser included offense of battery because it did not view the defense account of the fight as accurate or credible.

The dispositional hearing was held on July 18, 1984. D.M., represented by counsel, and his mother attended the hearing although notice had not been served on the respondents. The court considered a social history report which recommended recommitment. The court concluded that D.M. could not control his behavior and thus recommitted him to DOC, noting, however, that D.M.’s conduct was, to some degree, provoked by the victim. D.M. then filed the instant appeal.

The first issue on appeal concerns whether the minor’s guilt of battery was established beyond a reasonable doubt. D.M. testified that he did not have or use any weapons in his fight with the victim. Yet he could not offer any explanation as to how the stab wounds were sustained by the victim. The claim of the 14-year-old defense witness that one of the victim’s friends accidentally inflicted the wounds in his efforts to cut D.M. was rejected by the trial court as “unbelievable and incredible.”

The trial court in this case was presented with various witnesses who expressed differing versions of the events in question. The court was required, as the trier of fact, to weigh the credibility of the witnesses. The trial court found the testimony of the State’s witnesses to be more credible than that offered by the defense witnesses.

We find, on the basis of the evidence presented, that the trial court’s assessment of the testimony was adequate and sufficient to support its decision. The decision of a trial court will not be reversed on review unless the evidence is palpably contrary to the finding or so unreasonable, improbable or unsatisfactory as to cause reasonable doubt as to the guilt of the accused. People v. Reese (1973), 54 Ill. 2d 51, 294 N.E.2d 288.

The final issue raised on appeal concerns the juvenile court’s jurisdiction for the dispositional hearing. The minor argues that because his father was not given notice of the dispositional hearing, the court lacked jurisdiction to commit him to DOC. The minor did not contest the court’s jurisdiction at the adjudicatory hearing.

It is true that notice was not served on the respondents for the dispositional hearing. It is also true, however, that the requirements of notice and service were fulfilled for the adjudicatory hearing. The minor and his mother attended both hearings. The court was unsuccessful in its three attempts to serve the father, who lived in Chicago, and the father did not attend either hearing.

As to the jurisdictional issue in the case at bar, we find that the juvenile court did have jurisdiction for the dispositional hearing. Although the father was not present for either hearing, the State made sufficient efforts to locate and serve the father with notice of the adjudicatory hearing. It was not required to make additional attempts to serve the father for the second hearing because the court’s initial jurisdiction, which was proper, continued until all issues of fact and law had been decided.

Once attached, a court’s jurisdiction over the subject matter and the parties continues, ceasing only upon rendition of the final judgment. A juvenile court’s jurisdiction terminates after the entering of a final discharge order or when the minor attains the age of 21. (Ill. Rev. Stat. 1983, ch. 37, par. 705 — 11; In re Thompson (1980), 79 Ill. 2d 262, 402 N.E.2d 609.) The trial court in the instant case thus possessed jurisdiction to enter its dispositional order.

The case at bar is distinguishable from People v. R.S. (1984), 104 Ill. 2d 1, 470 N.E.2d 297. In that case, the trial court never acquired jurisdiction over the minor, the parents or the subject matter because the parents were not given notice of the initial adjudicatory hearing. This defect did not exist in the instant case.

Accordingly, the judgment of the circuit court of Peoria County is affirmed.

Affirmed.

HEIPLE, P.J., and SCOTT, J., concur.


author: JUSTICE WOMBACHER

text:
    KARL SICINSKI et al., Plaintiffs-Appellants, v. WILL COUNTY POLICE DEPARTMENT MERIT COMMISSION et al., Defendants-Appellees.
    Third District
    No. 3—84—0442
    Opinion filed April 2, 1985.
    Rehearing denied May 1, 1985.
    Patrick J. McNamara, of Schenk, Duffy, Quinn, McNamara, Phelan, Carey & Ford, of Joliet, for appellants.
    Edward F. Petka, State’s Attorney, of Joliet (Steven J. Prodehl, Assistant State’s Attorney, of counsel), for appellee Will County Police Department Merit Commission.
    John H. Kelly, of Thomas F. McGuire & Associates, Ltd., of Long Grove, for appellee John Shelley.
   JUSTICE WOMBACHER

delivered the opinion of the court:

This case comes on appeal from the circuit court of Will County, from an order affirming the actions of the defendant Will County Police Department Merit Commission (hereinafter commission). We reverse.

Plaintiffs Sicinski and Rathbun were deputies of the Will County police department. Sicinski held the rank of lieutenant, and Rathbun held the rank of sergeant. Both men were supporters of Ikey Liker, candidate for sheriff of Will County in the 1982 election.

In August 1982, Sicinski received a memo from another deputy, Pat Barry. This memo was approximately seven pages long and contained some allegations against the sheriff. Sicinski gave the memo to Rathbun, who was Liker’s campaign chairman. The memo was photocopied on the department’s photocopying machine. There is some evidence that Rathbun gave the memo to Liker. There is no evidence that the memo was given to anyone else.

Deputy Barry had received about six copies of the memo from different sources. He had discussed the contents of the memo with six or seven other people, some of whom were deputies. The information in this memo was known by the three network television stations in Chicago. WLS had a copy in its news file. WMAQ had used the memo in a November 1981 newscast; WBBM used it in February 1982.

Defendant Sheriff Shelley was re-elected in November 1982. In December 1982, proceedings were instituted against Rathbun and Sicinski. They were charged with violating three departmental rules and regulations: No. 10. Conduct unbecoming an officer of the department; No. 37. Violations of departmental rules and regulations; and No. 40. Any act that brings or tends to bring the individual or department into disrepute.

The deputies were found to have violated rules Nos. 10 and 40. Lieutenant Sicinski was demoted to sergeant. Sergeant Rathbun was suspended for 90 days without pay. Sicinski and Rathbun sought judicial review of the commission’s decision. The lower court affirmed the commission. Sicinski and Rathbun then brought this appeal.

The issue we consider on this appeal is whether the decision of the commission is contrary to the manifest weight of the evidence. The Administrative Review Law provides that agency decisions of fact are prima facie true and correct (Ill. Rev. Stat. 1983, ch. 110, par. 3 — 110). The function of the reviewing court is to ascertain if the findings are against the manifest weight of the evidence. (Department of Mental Health & Developmental Disabilities v. Civil Service Com. (1981), 85 Ill. 2d 547, 426 N.E.2d 885.) The judiciary is to decide if the final decision of the agency is just and reasonable in light of the evidence presented. Fantozzi v. Board of Fire & Police Commissioners (1963), 27 Ill. 2d 357,184 N.E.2d 275.

With this as our guide, we must reverse. The essential facts are undisputed. Boiled down to its simplest, Sicinski got a memo, gave it to Rathbun, it was photocopied on a departmental machine, it may have gotten to Liker, and some of this was done while the deputies were on duty. We find no possible way to connect these facts with any violations of the department’s rules. We cannot equate the facts with any conduct that could be considered unbecoming to an officer. We also cannot see any actions that would have brought the department into disrepute. The information contained in the memo was known by several law enforcement agencies and was broadcast on two Chicago television stations. Aside from Liker, Sicinski and Rathbun did not disseminate the information elsewhere. As we interpret “brings the department into disrepute,” it means in the public eye. The actions of these deputies did not diminish the stature of the Will County police force in the public eye. We find that all reasonable and unbiased persons would agree that the decision of the commission is erroneous and that the opposite conclusion is evident. O’Boyle v. Personnel Board (1983), 119 Ill. App. 3d 648, 456 N.E.2d 998.

Because of our decision, we decline to examine appellant’s questions of hearsay, the constitutionality of the rules and regulations and the severity of the punishment.

Therefore, the decision of the circuit court of Will County is hereby reversed. We remand the case to that court with instructions to reverse the Will County Police Department Merit Commission and to order the reinstatement of the deputies to the positions they held prior to the decision of the commission. The court is also to order any other relief that it may deem necessary.

Reversed and remanded with directions.

STOUDER and SCOTT, JJ., concur.


author: JUSTICE SCOTT PRESIDING JUSTICE HEIPLE,

text:
    JAMES HOLLENBECK, Plaintiff-Appellant, v. SELECTONE CORPORATION, Defendant-Appellee.
    Third District
    No. 3—84—0311
    Opinion filed March 15, 1985.
    HEIPLE, P.J., specially concurring.
    Joseph A. Mueller, of Ottawa, for appellant.
    Robert M. Hansen and Michael T. Reagan, both of Herbolsheimer, Lannon, Henson, Duncan & Reagan, P.C., of La Salle, for appellee.
   JUSTICE SCOTT

delivered the opinion of the court:

The plaintiff, James Hollenbeck, brings the instant interlocutory appeal from an order dismissing those counts of his complaint which stated causes of action against the defendant, Selectone Corporation.

The plaintiff was a police officer for the city of Marseilles. As part of his equipment, he was issued a mobile pager manufactured by Selectone. On February 28, 1982, the plaintiff activated the pager in an effort to obtain assistance in effectuating an arrest. The pager unit failed to operate. During the course of the arrest, the plaintiff was assaulted by several individuals and was severely injured.

The plaintiff brought suit against his assailants and the defendant Selectone. The plaintiff asserted three grounds for recovery against Selectone. Count IX of the complaint set forth a cause of action based upon breach of an implied warranty. Count X set forth a claim under the theory of strict liability. The cause of action stated in count XI was based upon negligence. On the defendant’s motion, the trial court dismissed counts IX, X and XI. This appeal followed.

The trial court based its dismissal on the holding in Williams v. RCA Corp. (1978), 59 Ill. App. 3d 229, 376 N.E.2d 37. The plaintiff in Williams was employed as a private security guard. The plaintiff’s employer supplied him with a two-way portable receiver manufactured by RCA. A robbery occurred while the plaintiff was on duty. The plaintiff activated the receiver to request assistance. Believing that additional officers would be arriving, Williams attempted to arrest the robber. However, the receiver had malfunctioned. While acting alone in attempting the arrest, Williams was severely injured.

Williams filed suit against RCA under a products liability theory. The trial court dismissed Williams’ complaint for failure to state a cause of action. The trial court ruled that the complaint failed to establish the element of proximate cause because the robber’s action in wounding Williams was, as a matter of law, an independent intervening cause.

The Williams court affirmed the decision of the trial court. The court began its review with the legal principle that an intervening criminal act does not break the causal connection between the product and the injury if that criminal act is probable and foreseeable. The Williams court construed probable and foreseeable to mean “objectively reasonable to expect.” The injury to Williams was not objectively reasonable to expect, according to the court, because a manufacturer may assume that no one will violate the law; the receiver was not designed to prevent criminal attack; and the manufacturer could not have foreseen that Williams would act before determining whether he had support.

We consider first the dismissal of count I, which alleged strict liability by misrepresentation. The cause of action in Williams was based upon strict liability for an unreasonably dangerous product. Williams was therefore required to prove that the defective, dangerous product was the proximate cause of his injury. (Restatement (Second) of Torts sec. 402A (1965).) In the instant case, the plaintiff based the cause of action in count X on strict liability based upon misrepresentation. (Restatement (Second) of Torts sec. 402B (1965).) Thus, the plaintiff was required to allege that his injury was proximately caused by the failure of the pager to conform to the defendant’s representations. Klages v. General Ordinance Equipment Corp. (1976), 240 Pa. Super. 356, 367 A.2d 304.

The issue before this court, then, is whether the plaintiff properly set forth the element of proximate cause so as to defeat a motion to dismiss. Specifically, we must determine whether the intervening criminal acts of the arrestee’s family were probable and foreseeable so that the causal connection between the plaintiff’s injury and the pager’s failure to conform to the defendant’s representations remained unbroken.

We find that the intervening criminal acts were not so improbable and unforeseeable as to break the causal connection. As the Williams court stated, probable and foreseeable means “objectively reasonable to expect.” In the instant case, the plaintiff has alleged that the defendant represented that its product was suitable for use by police agencies and that it marketed its product specifically for use by such agencies. It was, therefore, objectively reasonable to expect that pagers would be used by police officers in emergency situations where communication by pager was necessary. Given the undisputable fact that one of the critical functions of a police officer is to deal with persons violating the law, it was objectively reasonable to expect that the pager would be utilized in a situation involving a criminal offense. In short, we cannot say, as the court in Williams did, that the defendant manufacturer could assume that no one will violate the law.

It was also objectively reasonable to expect that the plaintiff, after activating the pager, would proceed to make the arrest. It is a police officer’s duty to apprehend and arrest those violating the law. The defendant knew or should have known of this duty when it marketed its product to police departments. Thus, the instant case is distinguishable from Williams in that the defendant manufacturer should have foreseen that the plaintiff would act after activating his pager.

We, therefore, find that the intervening criminal acts did not break the causal connection because the acts were probable and foreseeable. The plaintiff has alleged the requisite element of proximate cause so as to defeat the defendant’s motion to dismiss count X.

The plaintiff asserts that counts IX and X are based upon strict liability. However, a reading of count IX clearly shows that it states a theory of breach of the implied warranty of merchantability. Because no issue has been raised concerning this theory of liability, we decline to review the merits of the dismissal as to count IX.

Similarly, the plaintiff has not argued on appeal that the acts of the defendant which he alleges were negligently performed were the proximate cause of his injury. Because the plaintiff has not raised the merits of the dismissal of count XI, which sounds in simple negligence, we decline to review the merits as to the dismissals of count XI.

Accordingly, the judgment of the circuit court of La Salle County is affirmed as to counts IX and XI and reversed as to count X; the cause is remanded for further proceedings consistent with this decision.

Affirmed in part, reversed in part, and remanded.

BARRY, J., concurs.

PRESIDING JUSTICE HEIPLE,

specially concurring:

I agree with the result reached. The attempt to distinguish Williams v. RCA Corp. (1978), 59 Ill. App. 3d 229, 376 N.E.2d 37, however, is not convincing. The effect of the instant decision is to overrule Williams.

It is significant in this case that the pager was allegedly marketed specifically for use by police agencies. As the majority opinion correctly points out, it is a police officer’s duty to apprehend and arrest lawbreakers. The defendant should be charged with the knowledge that the pager would be used by a police officer to summon help in dangerous situations and that the officer’s safety would be seriously compromised if the device failed to work. That is the theory. The case should not have, been dismissed on the pleadings. The plaintiff was entitled to a trial.


author: JUSTICE STOUDER JUSTICE BARRY,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ARVID D. NIX, Defendant-Appellant.
    Third District
    No. 3—84—0143
    Opinion filed April 1, 1985.
    BARRY, J., dissenting.
    Robert Agostinelli, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Raymond Kimbell, State’s Attorney, of Galesburg (John X. Breslin and Rita Kennedy Mertel, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE STOUDER

delivered the opinion of the court:

The defendant, Arvid Nix, appeals from his conviction for harassment of a witness. The defendant raises multiple issues on appeal. Because we find that he was not proved guilty beyond a reasonable doubt, we reverse.

The defendant was charged with battery, aggravated battery, and harassing Donna Kurlinkus. Kurlinkus, a Multinarcotics Enforcement Group (MEG) agent, had testified against Nix in an earlier trial which resulted in his conviction of delivery of a controlled substance. On September 1, 1983, Kurlinkus and another agent, Donald Espinoza, were in the Taco House in Galesburg. The defendant entered the restaurant between 9 and 9:40 p.m. Kurlinkus subsequently left the table and walked toward the restrooms. According to Kurlinkus, the defendant followed her. As she opened the door leading to the hallway • in front of the restrooms, the defendant grabbed her arm and asked her, “How is it going?” Kurlinkus entered the women’s restroom and locked the door. A short time later, she emerged from the restroom. The defendant was still standing in the hallway. He again grabbed her arm and stated, “I want to talk to you.”

Kurlinkus testified that she opened the door leading into the restaurant and wedged her knee in the opening. The defendant then slammed the door against her knee. Kurlinkus testified that the struggle then ceased for no apparent reason. During this incident, Kurlinkus did not call to Espinoza for help.

Espinoza testified that when Kurlinkus returned to their table, her eyes were wide and her voice was pitched higher than was normal. He stated that Nix then identified Kurlinkus and him as MEG agents. Espinoza and Kurlinkus then left the restaurant.

The defendant testified in his own behalf that he did not - follow Kurlinkus or encounter her in the restroom area. He stated that he did not intend to harass Kurlinkus. He acknowledged that he identified her as an agent.

The jury acquitted the defendant on the charges of battery and aggravated battery. The defendant was convicted of harassment and sentenced to a three-year term of imprisonment.

The offense of harassment of a witness is established in section 32 — 4a of the Criminal Code of 1961 (Ill. Rev. Stat. 1983, ch. 38, par. 32 — 4a). That section provides in relevant part:

“A person who, with intent to harass or annoy one who has served as a juror or as a witness in a legal proceeding, *** because of the testimony of such witness, communicates directly or indirectly with the juror or witness in such a manner as to produce mental anguish or emotional distress *** commits a Class 4 felony.”

Section 32 — 4a has not yet been interpreted by a court of this State.

The defendant asserts that he was not proved guilty of the offense beyond a reasonable doubt because the State failed to prove that he possessed the requisite intent and that Kurlinkus suffered mental anguish or emotional distress.

• 1 The decision of the finder of fact will not be reversed on review unless the evidence is palpably contrary to the finding or so unreasonable, improbable or unsatisfactory as to cause reasonable doubt as to the guilt of the accused. (People v. Reese (1973), 54 Ill. 2d 51, 294 N.E.2d 288.) The crime of harassment as defined in section 32— 4a is a specific intent crime. (See State v. Zeit (1975), 22 Or. App. 480, 539 P.2d 1130.) The State was required to prove that the defendant acted with the “intent to harass or annoy.” The requisite intent may be inferred from the facts and circumstances surrounding the communication.

On the facts and circumstances in the instant case, we find that the State failed to prove that the defendant acted with the intent to harass or annoy. The jury’s verdicts on the charges of battery and aggravated battery demonstrated that the jurors gave little credence to Kurlinkus’ testimony regarding any physical assault on her in the restroom area. The question, then, is whether the requisite intent may be inferred from the content of the defendant’s communication and the fact that he touched Kurlinkus’ arm.

The defendant communicated twice with Kurlinkus. He stated, “How is it going?” and “I want to talk to you.” Neither of these statements, standing alone, evidences an intent to harass or annoy. Similarly, Kurlinkus never called to Espinoza for help. Her lack of reaction indicates that the defendant’s communication was not threatening enough to cause her to seek aid. When considered in light of the mild nature of the defendant’s remarks, it is apparent that no intent can be inferred from the defendant’s communication alone. Additionally, the evidence indicated that the defendant’s presence in the restaurant at the time Kurlinkus was there was purely coincidental. Thus, there was no evidence of advance planning on the part of the defendant which would demonstrate intent. The encounter between Kurlinkus and the defendant occurred in a public place which would be accessible to potential witnesses, further negating any inference that the defendant intended to harass Kurlinkus.

Given the innocuous nature of the defendant’s statements; the fact that the encounter between Kurlinkus and the defendant occurred by chance; the fact that the encounter occurred in a public place; and the evidence that Kurlinkus at no time called out for help, we find the evidence establishing intent was so unsatisfactory as to cause reasonable doubt as to the guilt of the accused.

We do not, by our decision today, find that a communication innocuous or nonthreatening on its face can never be the basis for a charge of harassment under section 32 — 4a. We find instead that under the totality of the facts and circumstances, the State failed to prove beyond a reasonable doubt that the defendant possessed the intent to harass or annoy Kurlinkus.

The defendant has raised several additional issues in this appeal. Because we have found that the defendant’s conviction must be reversed, we do not address these issues.

The judgment of the circuit court of Knox County is reversed.

Reversed.

SCOTT, J., concurs.

JUSTICE BARRY,

dissenting:

I do not agree with the majority that the State failed to prove defendant’s intent to harass or annoy Donna Kurlinkus, and therefore, I dissent.

The jury as the trier of fact is permitted to infer defendant’s intent to commit the offense from the facts and circumstances surrounding the words and actions of the defendant. (People v. Jones (1981), 93 Ill. App. 3d 475, 417 N.E.2d 647; People v. Mertens (1979), 77 Ill. App. 3d 791, 396 N.E.2d 595.) The majority opinion seems to concentrate mainly on the words spoken by defendant without regard to all the accompanying circumstances, and by my view, the majority also engages in a selective distortion of the testimony of the witnesses.

The victim testified that she was an experienced MEG agent who had gone to the Taco House bar with a new MEG agent on an undercover assignment. The two agents were trying to arrange a drug “buy” that evening. Although the victim had been in the bar for about 45 minutes when she decided to go to the restroom, she had not seen defendant. She entered the enclosed hallway which led to two restrooms at the back of the barroom. She heard someone following her into the hallway, and when she turned around, she saw defendant. She testified that his tone of voice was threatening and that he “grabbed” her arm twice (not that he touched it). She stated that she was frightened by defendant but that her first concern was to protect the identity of the fellow agent who was accompanying her so that he could continue to work as an undercover agent. For that reason, she did not call for help or make a public commotion immediately after the incident. The victim also testified that she knew the bartender was the defendant’s sister.

The majority opinion gives considerable weight to the fact that the encounter occurred in a public place and by chance, but the record indicates that the encounter actually took place in a secluded hallway, separated from the public room by a solid wooden door which opened inward and which defendant held closed. It appears the defendant purposefully followed her into the hallway and after she pulled away from him and entered the ladies’ room, he waited about five minutes in the hallway for her to come out. When she did, he blocked the exit, grabbed her arm again, and said he wanted to talk to her. They struggled until she pushed him aside and exited the restroom area. Defendant’s actions coupled with his words would seem to indicate an intent to harass or annoy the police agent who had been a witness against him in an earlier case.

After carefully reviewing the record, I am persuaded that the evidence was sufficient to sustain the jury verdict of guilty.


author: PRESIDING JUSTICE HEIPLE

text:
    COMMERCIAL NATIONAL BANK OF PEORIA, Plaintiff-Appellee, v. FEDERAL DEPOSIT INSURANCE CORPORATION, Defendant-Appellant.
    Third District
    No. 3—84—0454
    Opinion filed April 3, 1985.

      Tim Swain, of Swain, Johnson & Gard, of Peoria, for appellant.
    David J. Dubicki and Timothy J. Howard, both of Kavanagh, Scully, Sudow, White & Frederick, P.C., of Peoria, for appellee.
   PRESIDING JUSTICE HEIPLE

delivered the opinion of the court:

Commercial National Bank of Peoria (Commercial) recovered a judgment of $105,652.57 plus costs against the Federal Deposit Insurance Corporation (FDIC) based on loans fraudulently induced by Farmers State Bank of Lewistown (Farmers), for whom the FDIC is acting as receiver. The FDIC appeals and we affirm.

At all times relevant to the instant case, Commercial and Farmers had a longstanding correspondent banking relationship. As one service to its “country bank,” Commercial would provide participation and overline loans to customers of Farmers who sought credit in excess of Farmers’ legal lending limits. Commercial’s officer in charge of correspondent banking was Clifford Michael. Michael had been doing business for over a decade with Donald Thomas, who at the time of the events in 1981 was president of Farmers. Both Michael and Thomas testified to having an excellent business relationship. Whenever a customer of Farmers needed the services of Commercial, Thomas would call upon Michael. They would share the relevant financial data, and a decision would be made based upon that data.

On October 5, 1981, Thomas called Michael to inform him that Tingley Products (Tingley), a small manufacturing corporation owned by Vincent and Rebecca Augenstein, needed $90,000 to complete a contract. Thomas represented that the loan would be paid when the receivables generated by the contract were collected. Michael requested financial information. Thomas informed him that he had financial statements of both Tingley and the Augensteins dated September 30. The statements reflected a net worth of $15,000 for Tingley and $487,000 for the Augensteins personally. Michael had previously made a $60,000 loan to Tingley which had been repaid, albeit late. Michael agreed to make the loan on an unsecured basis, backed by the personal guarantees of the Augensteins. The maker of the note was listed as “Vincent Augenstein d/b/a Tingley Products.” The note was signed “Vincent Augenstein, Pres.”

"What Thomas did not tell Michael was that Tingley had laid off all its employees in July. The contract that Thomas represented did not exist at all, but was merely a vague and uncertain prospect which never materialized. He also conveniently ignored an $88,000 overdraft from Tingley to Farmers. The financial statements submitted to Michael (prepared by Augenstein on a quarterly basis for Thomas) mentioned neither the overdraft nor a $56,000 loan from Augenstein to Tingley.

The evidence strongly suggests that Thomas was for a long time aware of Tingley’s overdraft situation. It was the largest overdraft outstanding to Farmers. Augenstein testified that Thomas called him in to discuss the overdraft situation. Augenstein never suggested a loan to cover the overdraft. Thomas, however, had other ideas. Exhibits offered by Commercial show that the proceeds of the loan went directly into Tingley’s account to offset the overdraft. Further exhibits show that Tingley had already been in debt up to or over Farmers’ lending limits, not even considering the overdraft.

In the first week of November, Michael learned that Thomas had resigned from Farmers. In reviewing loans to customers of Farmers, Michael saw that the $90,000 had been applied to cover the overdraft. He promptly informed Farmers of Commercial’s claim against it. He also extracted a substantial payment from Augenstein, leaving a principal balance of $74,472.47, although the note was not due until April 1982. On January 11, 1982, a new note was given to Commercial by Tingley, representing the corporation as the maker and granting Commercial security interests in most of Tingley’s assets. Tingley and the Augensteins were both placed in involuntary bankruptcy by the FDIC. Judgment was taken on the January note and guarantees by Commercial. No portion of the judgment has been satisfied.

Commercial sued the FDIC on a single count of fraud. The jury returned a verdict of $77,860.96. Attached to the verdict form was a sheet indicating that the verdict was arrived at by taking the principal amount on January 11 and adding interest thereto up to April 12, the due date of the note. Commercial’s post-trial motion seeking additional interest up until the date of the judgment was granted, resulting in the judgment referred to above.

Defendant argues that its motion for a directed verdict should have been granted or, in the alternative, that it should be granted a new trial. Its principal contention is that plaintiff did not prove the elements of a cause of action for fraud.

The elements of fraud can be found in Soules v. General Motors Corp. (1980), 79 Ill. 2d 282, 402 N.E.2d 599. Plaintiff must prove that defendant:

(1) Made a false statement of a material fact.

(2) Knew or believed the statement to be false.

(3) Intended to induce action in reliance thereon.

(4) Actually induced the desired action.

(5) Caused damage to the party due to his reliance.

In addition, plaintiff must prove that his reliance was justified under the circumstances.

Despite defendant’s protestations to the contrary, the evidence and all reasonable inferences therefrom suggest that plaintiff made out a prima facie case of fraud. The statement that Tingley had a contract for which short-term financing was needed was decidedly false. The financial statements submitted were also false statements of fact in that critical financial information that Thomas was aware of was omitted. In fact, the record reveals that Thomas had another financial statement from the Augensteins showing a personal net worth of $319,000. It is a fair inference that Thomas communicated false information to Michael by submitting the statement showing a net worth of $487,000. Knowledge of falsity is easily inferred from the surrounding circumstances. Augenstein and Thomas both testified that Thomas followed Tingley’s progress closely in 1981. He certainly must have known that the Tingley employees were laid off and that no actual contract existed. His testimony to the contrary is unconvincing at best. Furthermore, Thomas’ possession of a contrary financial statement suggests that he knew he was giving Michael bogus data.

The intent to induce action is obvious from the facts. Thomas concocted the contract story because he had to create a credit basis for Tingley Products. Armed with a plausible story, Thomas went to Michael seeking to induce a loan to clear up the troublesome overdraft. Corroborative of this scenario is a letter to Augenstein from Thomas which in essence informed Augenstein that Tingley would have to sign a note for the balance if the overdraft were not paid within 10 days. Since Farmers had already reached its lending limit with Tingley, the overdraft had to be cleared up or Thomas may have been held personally liable for an unauthorized loan. The action taken by Commercial in reliance on the statements is not in serious dispute.

The damage element is seriously disputed by defendant, but its arguments are misguided. The court took judicial note of the judgments arising from the notes. The loss caused by the extension of credit to one incapable of repaying is clearly an injury which is the proper subject of a fraud action. Horne v. Walton (1866), 117 Ill. 141.

Defendant argues that damages have not been proved with sufficient certainty. Specifically, the failure to introduce evidence of the value of security taken for the January 11 note and of the value of claims in bankruptcy is cited to show that the true net loss to Commercial was not proved. However, these are questions of mitigation of plaintiffs damages. Mitigation of damages is an affirmative defense which must be pleaded and proved. (Rozny v. Marnul (1969), 43 Ill. 2d 54, 250 N.E.2d 656.) The only pleading which arguably raised this defense was stricken on plaintiff’s motion. The striking of this defense was in no way preserved.

Defendant further argues that Commercial was not damaged by Thomas’ misrepresentation because the note induced by fraud (the October note), was satisfied by the taking of the January note, which was taken with full knowledge of Tingley’s true condition. Plaintiff argues that the intention of the parties was that the January note was given in renewal and not in payment of the October note.

These positions are academic. Thomas induced Commercial to extend credit to third parties. These third parties did not have the means to pay. The indebtedness to Commercial continued regardless of the formalities of the instruments representing the debt. The new note did nothing to dissipate the taint of the original fraud. The proof of damage to Commercial stemming from the fraud was sufficient to support the jury’s verdict.

The closer question is whether Commercial proved that its reliance on Thomas’ representations was justified under the circumstances. Defendant’s position throughout has been that plaintiff, the sophisticated “city bank,” entered this transaction with its eyes closed. It had made a loan to Tingley before which had been difficult to collect. Michael had never spoken to Augenstein personally nor had he ever visited Tingley facilities. In fact, Michael had reason to know that Farmers itself was having financial problems. Nonetheless, Commercial made an unsecured loan of $90,000 based solely on Thomas’ representations.

In sum, defendant accuses Commercial of negligence in making the loan to Tingley. But negligence is not necessarily a good defense here. Rather, all relevant circumstances must be considered in determining whether a party’s reliance was justified. (Chicago Title & Trust Co. v. First Arlington National Bank (1983), 118 Ill. App. 3d 401, 454 N.E.2d 723.) Furthermore, it is ineffective to charge a party with negligence when a positive statement of material fact is made with the intention of inducing the party to act in reliance thereon. Eisenberg v. Goldstein (1963), 29 Ill. 2d 617, 195 N.E.2d 184.

The circumstances surrounding the transaction at issue lead to the conclusion that Commercial’s reliance was justified. Particularly telling is the 50 years’ relationship between Farmers and Commercial and the 13-year relationship of Michael and Thomas. Thomas knew that Michael trusted his business judgment. Thomas also knew that Michael would feel no need to investigate his representations independently because of that trust. Most importantly, Thomas knew Michael would accept Thomas’ information concerning Tingley because Thomas had made it his business to follow Tingley closely. This combination of disparity of information and misplaced trust created laboratory conditions for lulling Michael into a false sense of security. Such a situation triggers the exception to the general rule that a party is not justified in relying on representations made when ample opportunity exists to ascertain the truth of the representations before acting in reliance thereon (Carter v. Mueller (1983), 120 Ill. App. 3d 314, 457 N.E.2d 1335). Consequently, the element of justified reliance under the circumstances was adequately demonstrated.

Defendant submits the court erred in denying its motion in limine seeking exclusion of Thomas’ conviction of defrauding the United States (18 U.S.C. sec. 371 (1982)). The conviction was admitted on cross-examination for the purpose of generally impeaching Thomas’ testimony.

In Knowles v. Panopoulos (1977), 66 Ill. 2d 585, 363 N.E.2d 805, our supreme court adopted proposed Rule 609(a) of the Federal Rules of Evidence governing the admissibility of convictions to impeach a nonparty witness in a civil case. (See also People v. Montgomery (1971), 47 Ill. 2d 510, 268 N.E.2d 695.) In People v. Stover (1982), 89 Ill. 2d 189, 432 N.E.2d 262, the court emphasized that it had adopted the proposed version of the Rule ánd not the version ultimately adopted by Congress. The critical distinction is that in the Federal system, a conviction of a crime involving dishonesty or false statement is admissible regardless of prejudicial effect or probative value. Under Illinois’ adoption of the proposed rule, a showing that a conviction’s probative value outweighs its prejudicial effect is a prerequisite to the admissibility of any conviction for purposes of impeachment. Defendant contends that the court denied its motion in limine without undertaking the aforementioned balancing process.

Even if defendant’s assertion is correct, the ruling of the court below must be upheld. There is no record of the motion hearing beyond the court’s order reciting that it had heard argument and was fully advised in the premises. The burden of presenting a complete record of the proceedings below to support a claim of error is on the appellant. Given the findings as stated in the order, we must presume that the court properly exercised its discretion in denying the motion. Foutch v. O’Bryant (1984), 99 Ill. 2d 389, 459 N.E.2d 958.

Defendant raises several points regarding jury instructions. An objection to the damages instruction concerned the failure to discuss the possibility of the October note being satisfied by the January note and the lack of an allegation of fraud relative to the January note. In light of our previous discussion of the significance of the different notes, these questions are moot. Additionally, we note that the jury was instructed that if it did not find liability it would have no occasion to consider damages. If the jury accepted defendant’s theory that fraud did not induce Commercial’s action in taking the January note, it would have held defendant not liable. Thus, any error in the damage instruction would be inconsequential.

A series of non-IPI instructions tendered by defendant was refused by the court. Defendant’s No. 16 concerns the meaning of justifiable reliance. The instruction is essentially argumentative in that it condemns “closing one’s eyes” to available information, irrespective of whether such inattention was purposefully induced by the other party. Furthermore, the burden of proof instruction already informed the jury that plaintiff had to prove that its reliance was reasonable.

Defendant’s No. 17 distinguishes misrepresentation of facts from “mere promise or expression of opinion or intention.” This coincides with defendant’s position that Thomas did not make false material statements of fact. Our review of the testimony indicates that while this instruction is substantially correct, it is not supported by the evidence. Also, the issues instruction makes it clear that plaintiff had to prove that false statements of fact were made.

Defendant’s No. 18 states that damages from an alleged fraud must be a consequence only of the wrong and not from other causes. This is another expression of defendant’s view that plaintiff’s failure to act properly contributed to its loss. As before, we must reject this statement as an injection of a mitigation of damages defense which was neither pleaded nor proved.

Defendant’s final assertion of error is the court’s addition of interest to comport with the damages instruction given. The proper measure of damages in a fraud action is the loss to plaintiff and not the gain to defendant. (Martin v. Allstate Insurance Co. (1981), 92 Ill. App. 3d 829, 416 N.E.2d 347.) In Horne v. Walton (1886), 117 Ill. 141, the court held that the measure of damages for a fraudulently induced loan was the sum of money lent plus interest for the time that plaintiff was deprived of possession. In this case, that time would be from the time of the loan until judgment. The jury only awarded interest up until the due date of the note.

Defendant argues that the jury’s ignoring of the damages instruction constitutes a compromise verdict on the issue of liability. There is nothing in the record to support such a conclusion. Instead, it is reasonable to conclude that the jury confused the amount of interest that would have been due had the note been timely paid with the amount to which plaintiff was lawfully entitled. Since the awarding of the correct amount of interest involved only a simple use of arithmetic, it was within the court’s discretion to do so.

Accordingly, we affirm the judgment of the circuit court of Fulton County.

Affirmed.

BARRY and WOMBACHER, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SEYMOUR ASHINSKY, Defendant-Appellant.
    Third District
    No. 3—84—0619
    Opinion filed April 3, 1985.

      Robert Agostinelli and Gary Hicks, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    Edward E Petka, State’s Attorney, of Joliet (John X. Breslin and Rita Kennedy Mertel, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   PRESIDING JUSTICE HEIPLE

delivered the opinion of the court:

Defendant, Seymour Ashinsky, was arrested and charged with being a fugitive from justice from the State of Oklahoma. The arrest was made prior to the issuance of a Governor’s warrant. (Ill. Rev. Stat. 1981, ch. 60, par. 30.) The court informed defendant of the charges against him and, following the filing of an affidavit of assets and liabilities, appointed the Will County public defender to represent him. Defendant refused to waive extradition. During his confinement defendant received a check for $1,000 from family members in New York. The money was placed in his commissary account at the jail. Upon learning of defendant’s newly acquired riches, the State’s Attorney filed a motion to recoup the costs of providing defendant the services of the public defender. (Ill. Rev. Stat. 1981, ch. 38, par. 113— 3.1.) A hearing was held to determine the merits of the motion. Defendant testified that he had been unemployed for some time and had been subsisting on whatever charitable organizations would offer. His assets were a 1976 Chevrolet Caprice which was subject to a lien and household goods stored with a Joliet warehouseman. The goods were soon to be sold for failure to pay storage charges. The $1,000 was obtained to cover expenses for defendant’s “son,” Sean Harper, an 18-year-old whom defendant apparently took care of, although there was neither a blood nor adoptive relationship between them. Defendant had promised Mary Ellen Vories, the mother of Sean’s girlfriend, that he would reimburse her for Sean’s living expenses while he boarded there. Sean was also arrested, with defendant promising to reimburse Ms. Vories the $200 needed to post Sean’s bond. The public defender noted during the hearing that he had expended “probably 20 hours or so”, in representing defendant. The court, apparently rejecting the validity of the obligations incurred by defendant, ordered that $960 be recouped from defendant. The basis of this charge was the customary rate of $48 per hour for appointed counsel in Will County. The court ordered the remaining $750 in defendant’s commissary account paid over to the county.

Defendant argues that the court erred in assessing a public defender’s fee against him because the court was without authority to assess such a fee in an extradition case. The focal point of the controversy is under which statute the court appointed the public defender. The recoupment statute (Ill. Rev. Stat. 1981, ch. 38, par. 113 — 3.1) empowers the court to order reimbursement when counsel is appointed pursuant to section 113 — 3 of the Code of Criminal Procedure of 1963 or Supreme Court Rule 607 (which is not germane to the question here). Defendant contends that counsel was not appointed under section 113 — 3. That section provides:

“(a) Every person charged with an offense shall be allowed counsel before pleading to the charge. If the defendant desires counsel and has been unable to obtain same before arraignment the court shall recess court or continue the cause for a reasonable time to permit defendant to obtain counsel and consult with him before pleading to the charge.
(b) In all cases, except where the penalty is a fine only, if the court determines that the defendant is indigent and desires counsel, the Public Defender shall be appointed as counsel.” (Ill. Rev. Stat. 1981, ch. 38, par. 113-3.)

Defendant argues that he was not charged with an offense within the meaning of the Code of Criminal Procedure of 1963. An offense is defined as “a violation of any penal statute of this State.” (Ill. Rev. Stat. 1981, ch. 38, par. 102 — 15.) Instead, defendant claims he was arrested for violating an Oklahoma penal statute. The appointment of counsel was thus made pursuant to section 4 of “An Act in relation to the office of Public Defender” (Ill. Rev. Stat. 1981, ch. 34, par. 5604), which states:

“The Public Defender, as directed by the court, shall act as attorney, without fee, before any court within any county for all persons who are held in custody or who are charged with the commission of any criminal offense, and who the court finds are unable to employ counsel.” (Emphasis added.)

We agree with defendant. The “cases” mentioned in subsection (b) of section 113 — 3 whereby counsel is to be appointed to indigent defendants refers only to those who are charged with an offense as described in subsection (a). Defendant was not charged with an offense, but was being held pending the issuance of a Governor’s warrant pursuant to the provisions of the Uniform Criminal Extradition Act (Ill. Rev. Stat. 1981, ch. 60, par. 18 et seq.). Thus, one can only conclude that counsel was appointed because defendant was being held in custody, and not because he was charged with an offense. Accordingly, the provisions of section 113 — 3.1 are inapplicable.

The State raises numerous challenges to this argument. It is argued that defendant waived this contention by not raising it at trial. Even without regard to defendant’s pro se status at the recoupment ‘hearing, this argument is unavailing. Since counsel was appointed pursuant to section 4 of “An Act in relation to the office of Public Defender” (Ill. Rev. Stat. 1981, ch. 34, par. 5604), the court was without authority to order reimbursement. The public defender appointed thereunder is to serve as attorney without fee when so appointed.

The State argues that by submitting the affidavit of assets and liabilities mandated by section 113 — 3(b), counsel was effectively appointed pursuant to section 113 — 3. Turning once again to section 4, the court must find that defendant is unable to employ counsel. The use of the form customarily prepared by those charged with an offense indicates nothing more than a convenient method of making the required determination. It is not indicative of which statute the court below considered in making the appointment.

The State argues that since there is no record of the May 8 appointment of counsel, it must be presumed that the court acted properly in appointing counsel. This argument misses the point. The statute the State claims the court acted under could not have authorized the appointment of counsel, as defendant was not charged with an offense. Thus, it must be presumed that the court properly appointed counsel pursuant to section 4.

The State argues that the point is waived by a failure to move to retax costs in the trial court. The fee assessed here is not a cost of the proceeding. The reimbursement of public defender’s costs is a sui generis statutory remedy unrelated to the normal costs of a proceeding. A motion to retax costs was not necessary.

Finally, the State argues that County of Champaign v. Hanks (1976), 41 Ill. App. 3d 679, 353 N.E.2d 405, authorizes the recovery of costs from defendant. Hanks is distinguishable. There, defendant fraudulently conveyed real property for the purpose of appearing indigent. The court upheld an action for fees based on a theory of implied contract. Here, the State points to the omission of defendant’s household goods as an asset on his affidavit, as well as his failure to inform the court of his receipt of the $1,000. However, there is evidence in the record that the court would have found defendant indigent even if these assets had been disclosed. This is corroborated by defendant’s testimony as to debts and encumbrances. Therefore, any right to relief based upon Hanks is speculative at best.

Accordingly, we reverse the judgment of the circuit court of Will County and order the $750 returned to defendant.

Reversed.

BARRY and STOUDER, JJ., concur.