text:
      In re MARRIAGE OF JOANNE M. COOK, Petitioner-Appellee, and JOHN L. COOK, Respondent-Appellant.
    First District (2nd Division)
    No. 82 — 1411
    Opinion filed September 6, 1983.

      Law Office of Douglas R Trent, of Wheaton (Douglas P. Trent and C. Stanley Austin, of counsel), for appellant.
    Kalcheim & Kalcheim, Ltd., of Chicago (llene E. Shapiro, of counsel), for appellee.
   JUSTICE PERLIN

delivered the opinion of the court:

Respondent, John L. Cook (John), appeals the property distribution portion of a judgment dissolving his marriage to petitioner, Joanne M. Cook (Joanne). On appeal, John contends that the trial court erred in finding that Joanne’s interest in certain property was non-marital; in evaluating the property owned by the parties; in finding that the temporary maintenance order entered by the court “without prejudice” was proper and that Joanne should receive temporary maintenance; in finding that John had dissipated marital assets; in awarding to Joanne the majority of marital assets in lieu of permanent maintenance; and in directing John to contribute $30,000 to Joanne’s attorney fees. For the reasons hereinafter stated, we affirm the judgment of the trial court.

John and Joanne were married on June 13, 1953. The marriage produced two sons, both now emancipated. On May 11, 1978, Joanne filed a petition for dissolution and for partition of the marital home. On May 25, 1978, John filed an answer to Joanne’s petition, and on December 6,1978, he filed a counterpetition for dissolution.

Both of the parties hereto filed numerous pretrial motions and petitions for rules to show cause, including a myriad of unsuccessful requests by Joanne for the production of documents seeking to establish John’s financial status. On October 2, 1979, Joanne filed a petition for temporary maintenance and for “suit money.” A temporary maintenance order was entered on December 14, 1979, directing John to pay to Joanne $500 semi-monthly “without prejudice pending a final determination relative to any award of temporary maintenance.” John did not voluntarily comply with this or subsequently repeated maintenance orders, including some agreed to by both parties. The trial court noted that some 17 rules to show cause were requested by Joanne’s attorneys in an attempt to compel John’s compliance with temporary maintenance orders and on one occasion a body , attachment order was entered.

On October 23, 1980, Joanne “confessed” to the grounds for dissolution alleged in John’s amended counter-petition. The parties agreed to a bifurcated hearing (Ill. Rev. Stat-. 1979, ch. 40, par. 401, as amended), and on November 17, 1980, the trial court entered an order dissolving their 27-year marriage. A property distribution hearing began in June 1981 but was continued until January 11, 1982, following a mistrial ordered after the judge originally assigned to this case was transferred.

The testimony established that Joanne, aged 49 and in apparent good health, held an undergraduate degree in recreation. She was a homemaker until 1969 when she was employed as the bookkeeper and later the general manager of Just-Rite Coffee Service Company, owned in part by Dr. Elmer J. Justema. In 1972, Joanne entered into a real estate investment partnership with Doctor Justema, designated “J & J #1” (the partnership).

John, aged 53, also in apparent good health, held a degree in chemical engineering and had been engaged in the plastics business since 1958. He testified that he was employed as a manufacturer’s representative for J.L. Cook Plastics and J.L. Cook Company (operated as one entity) of which he was sole owner. He also owned or had interests in several other businesses, including American Coil (of which he was sole proprietor); Metric Tool & Die Company (a screw machine company in which he owned a 50% interest); Cotronics, Inc. (a molding company in Logansport, Indiana); Tanfastic (a suntanning facility); and Alprod, Inc. and Porta-Chef Kane (the record does not establish the nature of these businesses).

Affidavits submitted by the parties indicate that at the time of trial John’s monthly personal expenses totaled $2,738.53 and Joanne’s monthly personal expenses were approximately $2,280. A credit application signed by Joanne in October 1978 and admitted into evidence indicates that while she was employed by Just-Rite Coffee Service, her monthly income was approximately $2,900 (including the $1,000 per month temporary maintenance to be paid by John). Joanne stated that she had not been employed since August 1979.

At the conclusion of 10 days of hearings, and following an exhaustive review of approximately 109 exhibits and a record in excess of 3000 pages, a task which the trial court labels “a long and laborious process,” the trial court found that John’s income from his various businesses was “unclear.” The court noted that John “has not filed any federal individual income tax returns since 1978. He has no personal checking account. He keeps no formal business records in regard to J.L. Cook Company and J.L. Cook Plastics. He personally keeps no check book, no ledger, and no journal ***.”

The court found that prior to October 1980 John maintained two business-checking accounts, one used for payroll and the other for the operation of J.L. Cook Plastics. Since October 1980, John has operated J.L. Plastics on a “cash basis.” Bank deposit records of J.L. Cook Plastics produced by John indicate that total deposits of $261,379 were made in 1978 to the J.L. Cook Plastics account, whereas the 1978 Federal individual tax return prepared by John indicates that he earned only $29,000. Bank statements for 1979 reflect total deposits of $331,556 and for the first 10 months of 1980 total deposits of $270,588.

John failed to submit evidence to reconcile apparent discrepancies between reported income and bank deposit records. The limited financial data proffered by John consisted principally of a financial statement prepared by a certified public accountant, Thomas Lane (Lane), who had been hired by John’s attorney in July 1980 to prepare “payroll sheets and financial statements” for use in the trial. Lane did no accounting for John’s businesses prior to this time. The court noted that “Mr. Lane never took a physical inventory of the plant. He relied on [John’s] representations in preparing the balance sheet and financial statements.” Lane testified that he reviewed bank statements and cancelled checks for the business checking account prior to October 1980 and customer invoices and handwritten summaries prepared by John.

In making its findings and in rendering its decision the trial court noted that it had “taken into consideration all of the guidelines and factors delineated in the Illinois Marriage and Dissolution of Marriage Act, including the various subsections thereto, and arguments of counsel, cases cited therein ***.” Thereafter, the trial court found that marital assets, with a combined value in excess of $600,000, included the marital home at 801 Cleveland, Hinsdale, Illinois; a vacant lot in Vilas County, Wisconsin; an industrial building and real estate in Sandwich, Illinois, owned by J.L. Cook Plastics; certain furniture and furnishings in the marital home; two Cadillac automobiles; and John’s various business interests.

The trial court found that Joanne owned nonmarital property including her interest in J .& J #1 Partnership; her interest in certain household furniture and furnishings; jewelry; and approximately $50,000 in stock purchased by her with the inheritance received from her father’s estate and held in her name alone. The trial court assigned this nonmarital property to Joanne and in addition awarded to her, in lieu of maintenance, the marital home, the furniture and furnishings in the marital home not assigned to her as nonmarital property, the Wisconsin property and her 1978 Cadillac automobile. The court awarded to John his various business interests, the industrial building and real estate in Sandwich, Illinois, and his 1979 Cadillac automobile.

After the parties waived a hearing on fees, the court allowed attorney fees based upon petitions filed by the attorneys for both parties. John was directed to contribute $30,000 toward Joanne’s attorney fees and $30,000 to his attorney. Joanne was directed to pay $20,000 to her attorney. The court ordered John to sell his 700 shares of Cotronics, Inc., stock to pay the attorney fees, and a lien was impressed on the stock in favor of Joanne’s attorneys to the extent of fees allowed.

On May 26, 1982, a written judgment was entered conforming to the court’s findings and award of attorney fees. John appeals from that judgment. The portion of the judgment directing the sale of the Cotronics, Inc., stock was stayed by this court pending the disposition of this appeal.

John initially contends that the trial court erred in finding that Joanne’s interest in certain property was nonmarital. Specifically, John disputes that Joanne’s interest in J & J #1 Partnership was non-marital property. John urges that the evidence establishes that Joanne’s $30,000 initial investment in the partnership was acquired during their marriage as the result of a loan to her from her father, Lee Vogt (Vogt). Joanne maintains that the money was a gift to her alone from her father.

Generally, all property acquired by either spouse during the marriage is presumed to be marital property, regardless of how title is held. (Ill. Rev. Stat. 1979, ch. 40, par. 503(b).) A spouse seeking to rebut this presumption has the burden of presenting evidence which clearly shows that the property was acquired by an excepted method enumerated in section 503(a) of the Act, such as by gift. (Ill. Rev. Stat. 1979, ch. 40, par. 503(a); see generally In re Marriage of Smith (1981), 86 Ill. 2d 518, 530-31, 427 N.E.2d 1239.) A gift is a voluntary, gratuitous transfer of property by one to another where the donor manifests an intent to make such a gift and absolutely and irrevocably delivers the property to the donee. (Dudley v. Uptown National Bank (1960), 25 Ill. App. 2d 514, 520-21, 167 N.E.2d 257.) Moreover to prove a gift it must be shown that the donor has relinquished all present and future dominion and power over the subject matter of the gift. In re Marriage of Simmons (1980), 87 Ill. App. 3d 651, 654, 409 N.E.2d 321.

Here, Mr. Vogt, who was 72 years old when in 1972 he gave the money to his daughter Joanne, his sole heir, raised the money by borrowing against his insurance policies, converting a certificate of deposit and obtaining a $17,000 mortgage on his home. Vogt died in January 1974 and Joanne contends that he intended to make a gift to her of the $30,000 as an advance on her inheritance. John, however, maintains that Vogt intended to be repaid and telephoned often to inquire about repayment. Although denied by Joanne, John claimed that he had several conversations with her regarding repayment arrangements. John also attempted to demonstrate Vogt’s intention to be repaid by introducing into evidence 13 cancelled checks drawn on Joanne’s Oak Brook Bank account, payable to Vogt and containing a notation “mortgage payment.” Joanne conceded that she gave these checks to her father but denied that they were given as partial repayment of the $30,000. She stated that she agreed to help her father make the mortgage payments “when she was financially able.”

It is well established that conflicts in testimony must be resolved by the trier of fact. (Schulenburg v. Signatrol, Inc. (1967), 37 Ill. 2d 352, 356, 226 N.E.2d 624.) A reviewing court will not reverse a trial court’s findings of fact unless they are palpably against the weight of the evidence. (Collins v. Nugent (1982), 110 Ill. App. 3d 1026, 1037, 443 N.E.2d 277.) After observing the demeanor of the parties and weighing the evidence, the trial court here concluded that Joanne’s interest in the partnership resulted from a gift from her father. From our review of the record we conclude that the trial court’s finding was not palpably against the weight of the evidence, and thus it should not be set aside.

John also contends that, even if Joanne’s original investment in the partnership resulted from her father’s gift to her, she thereafter acted in such a manner that her interest in the partnership was transmuted from nonmarital to marital property.

As heretofore noted, section 503(b) of the Act presumes all property to be marital unless it is shown to have been acquired by an excepted method specified in section 503(a). Nonmarital property may, however, be transmuted to marital property by affirmative acts of a party such as transferring title of nonmarital property into some form of coownership (In re Marriage of Smith (1981), 86 Ill. 2d 518, 532, 427 N.E.2d 1239) or depositing nonmarital funds into a joint bank account from which marital expenses are paid (In re Marriage of Leon (1980), 80 Ill. App. 3d 383, 385, 399 N.E.2d 1006). Here, John suggests that transmutation of Joanne’s interest in the partnership resulted from Joanne’s actions in the marital home which were allegedly made on behalf of the partnership, including use of the family telephone for partnership business and the maintaining of records of partnership accounts. John also contends that Joanne purchased airline tickets for partnership business with nonmarital funds that had been allegedly commingled with marital funds in Joanne’s Oak Brook bank account.

Joanne denied commingling the marital and nonmarital funds and testified, without contradiction, that during the marriage she maintained two separate and distinct bank accounts, one in an Oak Brook bank for her individual and partnership use (although she states that she had paid from this account some marital expenses including “various household repairs, maintenance and improvements”) and one in a Naperville bank from which most marital expenses were paid. The source of funds from the Oak Brook account included the gift from Joanne’s father, her income from Just-Rite Coffee Service and her inheritance. All of the contributions to the Naperville account were made by John, although the account was in Joanne’s name alone.

Nonmarital funds in a bank account retain their nonmarital character unless the owner of the funds, by affirmative acts, demonstrates an intent to change such funds to marital. (In re Marriage of Smith (1981), 86 Ill. 2d 518, 531, 427 N.E.2d 1239.) Here, the evidence indicates no affirmative acts by Joanne that would demonstrate an intention to change either her Oak Brook account or her interest in the partnership from nonmarital to marital.

John also contends that the trial court erred in finding that certain stocks, furniture, furnishings and jewelry were Joanne’s non-marital property. Joanne had submitted an affidavit to the trial court listing many items of personal property, and she testified at great length that each item was acquired by her either through inherited funds, by gift or from income from nonmarital funds. (Ill. Rev. Stat. 1979, ch. 40, par. 503(a).) John’s challenge to the trial court’s findings in this instance is based on the same arguments (acquired through marital funds or transmutation) used to challenge the court’s conclusion that Joanne’s interest in J & J #1 Partnership was nonmarital. Again, John has failed to rebut evidence presented by Joanne which indicates that these items were acquired pursuant to section 503(a), thereby making them nonmarital property. We must, therefore, agree with the trial court’s conclusion that the personal property listed in Joanne’s affidavit and the stocks which she purchased and held in her name alone were nonmarital property and were properly assigned to her.

Next, John contends that the trial court, using outdated financial data, erred in evaluating the business interests of the parties.

It has long been settled that the value of marital assets must be established in the record so that a court of review may determine the propriety of a trial court’s apportionment of such marital property. (In re Marriage of Kundit (1982), 107 Ill. App. 3d 310, 314, 437 N.E.2d 777.) Here, after carefully and thoroughly analyzing the testimony of the witnesses, financial statements submitted by a certified public accountant engaged by John’s counsel, the credit applications signed by John and John’s answers to interrogatories, the trial court found that the value of John’s business interests amounted to $2 54,300 including: J.L. Cook Plastics - $120,000; Cotronics - $38,000; Metric Tool & Die Co. - $30,000; American Coil - $23,000; Alprod, Inc. - $22,300; Porta-Chef Kane - $10,000; J.L. Cook Company - $6,000; Tanfastic - $5,000. The court also established the value of Joanne’s interest in J & J #1 Partnership as $8,720.

Our review of the record dictates our conclusion that John has failed to provide sufficient financial data to mandate a reversal of the trial court’s evaluation of the parties’ various business interests.

John contends that the trial court erred in its finding that Joanne was entitled to temporary maintenance. He argues that such finding was improper in the absence of a hearing and that Joanne was not entitled to temporary maintenance because she was capable of obtaining employment and also as a result of the property which she possessed. John asserts that this finding is contrary to the evidence and to the requirements of section 504(a) of the Act (Ill. Rev. Stat. 1979, ch. 40, par. 504(a)), which authorizes a maintenance award only if the court finds that the spouse seeking maintenance lacks sufficient property to provide for her reasonable needs and is unable to support herself through appropriate employment or is otherwise without sufficient income. It has been held, however, that when the basis for an award of maintenance has been established in the record, specific findings as to the statutory basis used by a trial court in awarding such maintenance are not required. In re Marriage of Coram (1980), 86 Ill. App. 3d 845, 848, 408 N.E.2d 418.

Here, Joanne was unemployed and living outside the marital home during the pendency of these proceedings while John continued to earn income. The record indicates that Joanne’s monthly expenses were approximately $2,280. At the time the temporary maintenance order was entered, the trial court was aware of John’s reluctance to comply with requests for the production of financial data. Moreover, the record indicates that a full hearing on the issue of temporary maintenance was precluded by the numerous continuances requested by the parties. In our judgment the order of temporary maintenance was not unreasonable.

John next asserts that the trial court erred in finding that he had dissipated marital assets.

Section 503(c)(1) of the Act (Ill. Rev. Stat. 1979, ch. 40, par. 503(c)(1)) directs the trial court, when apportioning marital assets, to consider “the contribution or dissipation of each party in the acquisition, preservation or depreciation or appreciation in value, of the marital and non-marital property ***.” The trial court found that John “attempted to dissipate and reduce the value of the marital property.”

Our review of the record reveals ample support for this finding. Prior to the parties’ marital problems, John regularly maintained the payments of mortgage and taxes on the various properties owned by the parties. Subsequent to the filing of this action, however, John failed to make the monthly payments necessary to preserve and maintain the property. The court found that as a result of John’s actions, mortgage foreclosure proceedings were held resulting in the sale of the marital home for $72,000. The marital home had been appraised in 1981 at $270,000 to $310,000, whereas at the time of judgment the marital interest in that property was reduced to a right of redemption. Also John had not paid the property taxes on the parties’ Wisconsin property. AT&T stock, held jointly by the parties was ordered sold, the proceeds to be applied to the payment of these property taxes and to contribute, in part, to the payment of the arrearage of temporary maintenance. John also failed to pay the taxes on the Wisconsin property which accrued after the sale of the AT&T stock. As a result, additional property taxes encumbered the Wisconsin property when it was awarded to Joanne.

The record also indicated that John defaulted on a loan secured by the Sandwich, Illinois property and at the time of the trial a mortgage foreclosure action on the Sandwich property was pending.

John, without citation of authority, seeks to avoid a finding of dissipation of marital assets on the ground that his obligation to pay maintenance to Joanne rendered him incapable of. maintaining their marital assets. Our review of the record, however, persuades us that in fact John made little effort to comply with the court’s temporary maintenance orders or to maintain the marital assets.

To compensate Joanne for the dissipation in value of these marital assets and in lieu of maintenance, the trial court awarded to Joanne a majority of marital assets. John contends that this award was erroneous and that Joanne should have been required to establish that she was entitled to receive permanent maintenance prior to an award of property in lieu of maintenance.

It is generally held that the purpose of the Act is to make the division of property the primary means of providing for the future financial needs of the spouses. (Kujawinski v. Kujawinski (1978), 71 Ill. 2d 563, 576, 376 N.E.2d 1382; In re Marriage of Smith (1981), 100 Ill. App. 3d 1126, 1130, 427 N.E.2d 1262; In re Marriage of Rothbardt (1981), 99 Ill. App. 3d 561, 566, 425 N.E.2d 1146.) Moreover, where it is shown that an award of periodic support cannot be relied on or the party ordered to make such payments is shown to be dilatory in paying his bills, an award of property in lieu of maintenance may be appropriate. See In re Marriage of Gan (1980), 83 Ill. App. 3d 265, 271, 404 N.E.2d 306.

Here, the record indicated that sufficient marital assets, valued in excess of $600,000, existed to provide for the parties’ post-marital financial needs. Furthermore, John’s apparent unwillingness to comply with court orders was evident. Under these circumstances, therefore, the court’s award to Joanne of marital assets in lieu of maintenance was not error.

Finally, John contends that the trial court erred in directing him to contribute $30,000 toward Joanne’s attorney fees.

An award of attorney fees in dissolution proceedings rests within the sound discretion of the trial court, and the exercise thereof will not be disturbed on review unless such discretion is clearly abused. (In re Marriage of Brophy (1981), 96 Ill. App. 3d 1108, 1117, 421 N.E.2d 1308.) Fees granted should provide fair compensation for reasonable and necessary services determined by the court after considering the financial position of the parties; the skill and standing of the attorneys employed; the importance, novelty and difficulty of the questions raised; the time and labor required; the usual and customary charge in the community; and the benefits resulting to the client. Donnelley v. Donnelley (1980), 80 Ill. App. 3d 597, 602, 400 N.E.2d 56.

Here, the trial court considered the petitions for fees submitted by the parties’ attorneys as well as the conduct of the parties. The court concluded that John’s conduct made necessary an unusual amount of legal services and as a result directed him to pay $30,000 of the $50,000 awarded to Joanne’s attorneys. In view of John’s failure or inability to comply with court orders and procedures, and in view of his failure to document his finances and to demonstrate his inability to pay the prescribed fees, we are unable to conclude that the trial court erred in its judgment.

As previously noted, that portion of the trial court’s judgment directing the sale of the Cotronics stock was stayed pending disposition of this appeal. In view of our decision such stay is dissolved.

For the reasons herein stated, the judgment of the trial court is affirmed.

Affirmed.

DOWNING, P.J., and HARTMAN, J., concur.

      In a colloquy with the trial court, John’s attorney advised the court that he had explained to John that “[the Judge] has reviewed all of the exhibits and *** heard the trial testimony, and I am sure [the court] made mental corrections in regard to the briefs.”

      It is clear that if Vogt gave the $30,000 to Joanne and in addition himself serviced the mortgage cost, he would have expended substantially in excess of $30,000.

      In connection with the evaluation of John's assets the trial court noted that “[John], through his accountant, gave certain values to these assets. Other values were given in credit applications and still other values were given in answers to interrogatories.” This variance made difficult the court’s assessment of asset value. The court properly, in our opinion, adopted “mean” (average) value.

      We find no support in the record for John’s contention that the value of J.L. Cook Plastics should be diminished by approximately $111,000 allegedly owed to the Federal government in payroll taxes. The court found that, although at trial John claimed to owe payroll taxes for 1979, 1980 and 1981, his tax returns at no time indicated his liability for payroll taxes.


source: Caselaw Access Project

author: JUSTICE O’CONNOR

license: Public Domain

text:
      In re ESTATE OF E. DAVIS WERNICK, Deceased (Garson Wernick, Ex’r of the Estate of E. Davis Wernick, et al., Petitioners-Appellants, v. Mitchell Macks, Respondent-Appellee).
    First District (3rd Division)
    No. 82 — 1806
    Opinion filed August 31, 1983.
    Rehearing denied September 28, 1983.

      Barry A. Feinberg, of Chuhak, Tecson, Kienlen & Feinberg, of Chicago, for appellant Carson Wernick.
    Theodore M. Becker and David J. Eckert, both of Becker & Tenenbaum, and Peter R. Meyers, both of Chicago, for appellant Samuel S. Wernick.
    David R. Herzog, of Layfer, Cohen, Handelsman & Mora, Ltd., of Chicago (Fred F. Herzog, of counsel), for appellee.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Petitioners, Carson Wernick, executor of the estate of E. Davis Wernick, deceased (the Estate) and Samuel S. Wernick, son and one of the beneficiaries of the Estate, brought proceedings in probate court against respondent, seeking recovery of the decedent’s one-half beneficial interest in a land trust which held legal title to certain properties commonly known as 1615 South Wabash Avenue and .60 East Cedar Street (the Cedar property) in Chicago, Illinois, or, in the alternative, for one-half of the fair market value of said properties. Respondent, with his wife, claimed sole ownership of the Cedar property by virtue of an assignment allegedly executed by the decedent shortly before his death in exchange for-, a $90,000 promissory note (the note). After conducting substantial discovery, petitioners filed á motion for partial summary judgment in the amount of $90,000. The motion, which related solely to the Cedar property, was based on respondent’s admissions in the record which established that the decedent’s interest in the Cedar property had an undisputed value of at least that amount and that respondent had not paid the decedent any money to that date against the alleged note. Petitioners’ prayer for relief stated:

“Said partial summary judgment should be entered and yet have no bearing on any future litigation with respect to the difference between the NINETY THOUSAND DOLLAR ($90,000.00) figure and whatever the Court will later rule as to the total amount due and owing the Estate for the property at 60 East Cedar Street, Chicago, Illinois.” (Emphasis added.)

Petitioners at all times denied that the subject transaction had ever taken place between the parties and denied having possession of any note, nor was respondent able to produce a copy of said note, although he testified that he always made copies of the documents that he prepared. Nevertheless, a question arose during oral argument on petitioners’ motion concerning the hypothetical presentment of the note which respondent allegedly gave to the decedent, and the Estate agreed to indemnify respondent against a hypothetical holder in due course. The trial court granted petitioners’ motion on June 4, 1982. Respondent subsequently filed a motion for modification of judgment which the trial court granted on June 23, 1982, and which is the subject of this appeal.

Respondent’s motion was based solely on the premise that by proceeding to partial summary judgment on the admitted minimum value of the Cedar property, petitioners had necessarily conceded that a transaction (the purported assignment) had taken<place between the parties and had thereby “elected their remedy,” precluding them from any further relief. The effect of the trial court’s June 23 order was to convert petitioners’ partial summary judgment into a full summary judgment, “fully and finally adjudicating all of the rights and liabilities of the parties to [all of] the property which [was] the subject matter of [petitioners’ previously filed] Amended Citation to Recover Property.” Due to the nature of respondent’s motion, which was neither a motion to vacate the partial summary judgment nor a cross-motion for summary judgment, the trial court entered its order in the absence of an evidentiary hearing to determine the existence of genuine issues of material fact, including the existence of the alleged transaction itself which was, and still remains, in dispute. In light of the ramifications of such an order, we believe that its granting without such a hearing was erroneous. We have also examined the record which would have properly been before the trial court had such a hearing taken place, and we find that it reveals the existence of several factual issues with respect to the circumstances surrounding the alleged assignment which would cast doubt upon the validity of the disputed transaction even if such a transaction was ultimately found to have taken place.

We therefore reverse the trial court’s order of June 23, 1982, and affirm the partial summary judgment in favor of petitioners and remand the cause for further proceedings.

The events which culminated in the subject orders began during the proceedings for probate of decedent’s estate, pursuant to which counsel for the executor requested from respondent an accounting for the income, expenses and profits on the Cedar property. Respondent advised the Estate by letter on May 3, 1979, that he had purchased from the decedent all of his right, title and interest in the subject property many months prior to the decedent’s death. Thereafter, discovery proceedings were commenced against respondent, including a request for production of any documents supporting his claim to full ownership of the Cedar property. Respondent answered and averred that he had issued a $90,000 note for decedent’s interest in the property, but that he had no copy of the note in his possession. Respondent subsequently filed an amended response to the request for production, attaching a purported assignment by decedent of his rights in the Cedar property to respondent and respondent’s wife, dated July 7, 1977, less than two weeks before decedent’s death. The amended response stated that no witnesses were present at the execution of the alleged assignment.

Thereafter, on June 9, 1980, respondent submitted to jurisdiction before the trial court for further proceedings on this matter. Respondent testified that he had purchased the Cedar property with the decedent some seven or eight years previously and that each had paid one-half of the $180,000 purchase price. Respondent further testified that the decedent assigned to him his one-half beneficial interest in the land trust holding the Cedar property on July 7, 1977, at which time respondent knew decedent was ill and undergoing treatment for cancer. Respondent admitted having paid no money on the note allegedly given in exchange for the decedent’s interest.

Respondent also testified during discovery depositions taken in connection with the proceedings that he had met with the decedent, the decedent’s son Garson and his accountant approximately six months before the decedent’s death to discuss the disposition of certain properties which he and the decedent held jointly. Respondent admitted that the reason for the meeting was in part his expectation of the impending death of the decedent, in which event respondent stated that he did not want to become partners with the decedent’s son. The decedent agreed at that time to sell his interest in certain properties to respondent; however, he did not then agree to sell his interest in the Cedar property, nor did he agree to purchase respondent’s interest which was allegedly offered to him. Some time after the meeting, respondent informed decedent that the building on the Cedar property may have to be demolished, after which decedent allegedly accepted respondent’s offer of $90,000 in exchange for the property. Respondent further testified that he sold the Cedar property approximately one year to 15 months after decedent’s death, for money and property worth $400,000. Respondent stated that he had not paid anything on the alleged note.

By leave of court, petitioners filed their amended citation to recover property on April 2, 1982, seeking recovery of the full value of the decedent’s interest in the Cedar property, as well as other property. The amended citation incorporated an independent appraisal of the Cedar property conducted on September 20, 1977, just two months after decedent’s death, which stated its fair market value to be $405,000. At the same time, petitioners also filed their motion for partial summary judgment against respondent in the amount of $90,000, based on respondent’s admissions that the decedent’s interest in the Cedar property alone had a value of at least that much. The motion clearly did not concern decedent’s interest in the Wabash property or in any other properties, and expressly reserved for further consideration issues of fact concerning the actual value of the interest in the Cedar property.

Throughout the course of oral arguments on the motion; counsel for petitioners reiterated the necessity of an evidentiary hearing during which the trial court could determine the numerous questions of fact concerning the purported transaction. Due to the limited question upon which petitioners based their motion, however, the trial court considered at that time only the motion itself and corresponding memoranda, the amended citation to recover and respondent’s answer in which he raised the note theory in the form of a denial, respondent’s deposition and in-court testimony, and his answers to interrogatories. Similarly, no factual evidence was heard pursuant to respondent’s subsequent motion for modification, wherein the trial court based its ruling solely upon its belief that petitioners had acceded to the note theory and elected their remedy. The nature of the second hearing thereby denied petitioners an opportunity to present several items of evidence which, we believe, preclude the entry of total summary judgment. This evidence includes, but is not limited to, the deposition testimony of decedent’s office nurse that the decedent’s health was failing and that he became forgetful during the last four or five months of his life, often writing incorrect prescriptions; the testimony of decedent’s personal nurse that the decedent ingested drugs as part of his treatment which sometimes caused him to transpose telephone numbers and that his business affairs were not utmost on his mind during his final weeks; the affidavit of decedent’s son stating that the decedent told him he did not wish to sell the Cedar property because said property was excellent real estate which would continue to appreciate and establish his children for life. Decedent knew, at the time he made this statement, that the property had a value in excess of $325,000, which was its appraised value at the time of his wife’s death in September of 1974. In addition, these three persons at least questioned the validity of the decedent’s signature on the purported assignment.

A party’s right to summary judgment must be clear and free from doubt. (Lind v. Zekman (1979), 77 Ill. App. 3d 432, 438, 395 N.E.2d 964.) Summary judgment may only be granted where the pleadings, affidavits, answers to interrogatories, exhibits and depositions on file establish that there is no genuine issue of material fact and that the moving party is entitled to such judgment. (Admiral Builders Corp. v. Robert Hall Village (1981), 101 Ill. App. 3d 132, 427 N.E.2d 1032, appeal denied (1982), 88 Ill. 2d 549.) We believe that the evidence in the instant case demonstrates the existence of several genuine issues of material fact which must preclude the granting of total summary judgment. These include: whether the alleged transaction took place and, if so, the decedent’s capacity to enter into such a transaction; the existence of the purported note and whether, if found to exist, such constituted fair and adequate consideration for the alleged assignment; and whether respondent breached any fiduciary duty owed to the decedent. In light of these remaining questions, the trial court’s order granting summary judgment must be reversed.

The trial court based its June 23 order on its belief that by moving for partial summary judgment petitioners had acceded to respondent’s note theory and had thereby elected their remedy. Respondent argues that this is further evidenced by the order for partial summary judgment, wherein the Estate indemnified respondent against any hypothetical holder in due course of the purported note. We disagree. Respondent relies principally on Paoli v. Zipout, Inc. (1959), 21 Ill. App. 2d 53, 157 N.E.2d 79, a case which is factually in-apposite to the one now before us. Paoli involved a suit brought after a prior suit had been tried to judgment. Plaintiff there elected to proceed and won damages based on a license agreement, then sought to cancel the agreement in a subsequent lawsuit based on forfeiture. In the instant case, petitioners never conceded the existence of any note; conversely, counsel for petitioners consistently maintained that whether the purported transaction took place remained a question of fact to be determined at trial. Petitioners neither affirmed nor forfeited the alleged assignment, nor can they be held to have elected a remedy where they were deprived of the opportunity to complete discovery on these issues. Moreover, election of remedies does not apply to the instant case because the Estate never attempted to pursue opposite and irreconcilable claims; the only claim brought by the Estate was that embodied in its amended citation to recover for recovery of decedent’s interest in both the Cedar and Wabash properties. The Estate’s motion for partial summary judgment sought the partial remedy of $90,000, which was the undisputed minimum value of only one of the subject parcels. The doctrine is also inapplicable where, as here, no threat of double recovery exists, the defendant has not been misled and has not changed his position in reliance on plaintiff’s conduct, and there is nothing in the action that would serve to bar the instant remedy by reason of res judicata. See Casati v. Aero Marine Management Co. (1980), 90 Ill. App. 3d 530, 536-37, 413 N.E.2d 122; Rotogravure Service, Inc. v. R. W. Borrowdale Co. (1979), 77 Ill. App. 3d 518, 395 N.E.2d 1143.

Finally, while not raised as an issue on appeal, we believe that the trial court’s June 4, 1982, order granting partial summary judgment in favor of the petitioners was proper in light of respondent’s admission of liability for at least that amount (see, i.e., Messenger v. Rutherford (1970), 130 Ill. App. 2d 407, 264 N.E.2d 775) and that such an order clearly does not preclude trial on the outstanding disputed claims raised in petitioners’ amended citation to recover. See also McKey v. Provus (1913), 181 Ill. App. 364.

Based on the foregoing, the June 23, 1982, judgment of the circuit court of Cook County is reversed, the order of June 4, 1982, granting partial summary judgment is affirmed, and this cause is remanded for trial on petitioners’ amended citation to recover.

Reversed in part, affirmed in part and remanded.

McGILLICUDDY and WHITE, JJ., concur.


author: JUSTICE CAMPBELL

text:
    JENNIFER MOSS, by her Father and Next Friend, Donald Moss, et al., Petitioners-Appellants, v. EARL S. MEYER, d/b/a Shrout Pharmacy, Defendants-Appellee.
    First District (1st Division)
    No. 82 — 2383
    Opinion filed September 6, 1983.
    Alan G. Langowski, of Chicago, for appellants.
    Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (D. Kendall Griffith, Carlton D. Fisher, and John R. Williamson, of counsel), for appellee.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Plaintiffs, Jennifer Moss and her parents Donald and Margaret Moss, appeal from a summary judgment entered against them in favor of defendant, Earl S. Meyer d/b/a Shrout Pharmacy, finding that the actions of Jennifer Moss constituted an intervening superseding cause to the negligence of the defendant. On appeal, the plaintiffs raise the following issues: (1) whether the trial court erred in finding that the plaintiff’s actions were superseding or intervening where the resulting injuries were a foreseeable consequence of the defendant’s actions; and (2) whether the trial court erred in entering summary judgment where the issue of intervening cause was previously determined by the trial court and where material issues of fact exist for the jury to determine.

The record discloses that on November 10, 1977, defendant, Shrout Pharmacy, accepted a phone call order for 100 capsules of a medical prescription purportedly on behalf of plaintiff, Donald Moss. The order was placed by Donald Moss’ minor daughter Jennifer Moss, age 14, for her own use.

Defendant filled the prescription and delivered it to the plaintiff’s home. The delivery was accomplished by leaving the prescription on the front doorstep of their home. Donald Moss’ youngest daughter, Mallory, took the prescription from the doorstep and gave it to Jennifer Moss. Jennifer Moss’ deposition reveals that she then put the prescription under her bed and retrieved it later that night. Her deposition further reveals that she then wrote a suicide note and ingested 35 of the prescription capsules. Plaintiff lapsed into a coma for four days and spent an additional V-k months in Evanston Hospital, as well as an additional year in out-patient psychiatric care.

The record further discloses that upon the filing of the complaint, the defendant filed a motion to dismiss the complaint. An agreed order was entered into by the parties whereby the defendant’s motion to dismiss was denied with prejudice. Thereafter the defendant filed a motion for summary judgment. In support of the motion, defendant offered the affidavit of Donald E. McDonald, director of the department of pharmacy at Northwestern Memorial Pharmacy in Chicago. McDonald stated that for eight years the plaintiffs had ordered prescriptions at defendant’s pharmacy and the doorstep delivery procedure had been used on several occasions. According to McDonald, the delivery procedure was “a reasonable, proper, necessary and accepted method of delivering drug prescriptions to pharmacy customers in general and to the Moss family in particular.” Plaintiffs offered no contradictory evidence. The trial court granted the defendant’s motion upon finding that Jennifer Moss’ actions constituted an intervening and superseding cause to the defendant’s negligence.

Initially, the plaintiffs contend that the act of ingesting the capsules does not constitute a superseding or intervening cause because Jennifer Moss’ injuries were a foreseeable consequence of the defendant’s actions. Plaintiffs rely on O’Brien v. Musfeldt (1951), 345 Ill. App. 12, 102 N.E.2d 173, and assert that because the defendant allowed a minor access to barbituates, the defendant was aware that attempted suicide was likely to result from his actions.

The defendant counters by asserting that negligent conduct cannot be the proximate cause of an injury unless there is evidence that but for the conduct the injury probably would not have resulted. (Kind v. Hycel, Inc. (1977), 56 Ill. App. 3d 772, 372 N.E.2d 385.) Additionally, where a defendant’s negligence merely creates a passive condition that makes injury possible, but is not the cause of the injury, the defendant cannot be held liable for a plaintiff’s injury. First National Bank v. City of Aurora (1976), 41 Ill. App. 3d 326, 353 N.E.2d 309, rev’d on other grounds (1978), 71 Ill. 2d 1, 373 N.E.2d 1326.

In the instant case, application of a “but for” analysis as suggested by the plaintiffs, would miss the import of the intervening superseding cause doctrine. Clearly, had the defendant not filled the prescription, the plaintiff could not have attempted suicide. The issue, however, is whether attempted suicide was the natural and probable result of the defendant’s actions.

We are in accord with the holding in Stasiof v. Chicago Hoist & Body Co. (1964), 50 Ill. App. 2d 115, 122, 200 N.E.2d 88, 92, aff’d sub nom. Little v. Chicago Hoist & Body Co. (1965), 32 Ill. 2d 156, 203 N.E.2d 902, that attempted suicide is not a natural and probable result of a defendant’s negligence. Therefore, the defendant could not have foreseen the plaintiff's actions and cannot be held liable for them.

Plaintiffs next argue that Jennifer Moss’ deposition poses questions as to whether she was in command of all her faculties at the time of the incident. Plaintiff’s inability to remember other acts she had performed on the day in question, her failure to remember whether the prescription container had a safety top, and her inability to remember whether the suicide note was written with a pen or pencil or on notebook paper are all actions alleged to question whether or not the plaintiff was in full command of her faculties. Plaintiffs rely on Orcutt v. Spokane County (1961), 58 Wash. 2d 846, 364 P.2d 1102, to assert that when insanity prevents one from realizing the nature of his act or from controlling his conduct, a resulting suicide is to be regarded as a direct result and not as an intervening force. Therefore, a defendant would be liable for injuries resulting from an attempted suicide.

Defendant contends that the trial court properly construed the rule prohibiting recovery for attempted suicide following a tortious act. Defendant relies on the rule acknowledged in Stasiof v. Chicago Hoist & Body Co. (1964), 50 Ill. App. 2d 115, 122, 200 N.E.2d 88, 92, aff’d sub nom. Little v. Chicago Hoist & Body Co. (1965), 32 Ill. 2d 156, 203 N.E.2d 902, which states that “the act of suicide is an independent intervening act which the original tortfeasor could not have reasonably expected to foresee.” Therefore, “there is no recovery for [an] *** attempted suicide following a tortious act ***” (50 Ill. App. 2d 115, 122, 200 N.E.2d 88, 92).

Plaintiffs argue, however, that an exception to the general rule exists where the suicide is a traceable result of the tortfeasor’s actions, notwithstanding that the decedent was not insane at the time of taking his own life. Plaintiff relies on the case of Tate v. Cononica (1960), 180 Cal. App. 2d 898, 5 Cal. Rptr. 28. In Tate, defendants continually harassed, embarrassed and humiliated the deceased in the presence of friends, relatives and business associates. As a direct result, the deceased became physically and mentally disturbed and committed suicide. (180 Cal. App. 2d 898, 900, 5 Cal. Rptr. 28, 31.) The court held that civil liability would not attach where defendant’s act was intentional but where there was no intent to cause injury. (180 Cal. App. 2d 898, 909, 5 Cal. Rptr. 28, 36.) The exception, therefore, was applicable only where the actor intended to cause injury, and the injury was a cause in fact of the suicide.

The exception is recognized in Illinois where, due to the defendant’s actions, the “person injured becomes insane and bereft of reason, and while in [that] condition and as a result thereof he takes his own life.” Stasiof v. Chicago Hoist & Body Co. (1964), 50 Ill. App. 2d 115, 122, 200 N.E.2d 88, 92; Repinski v. Jubilee Oil Co. (1980), 85 Ill. App. 3d 15, 25, 405 N.E.2d 1383, 1390.

The issue then, is whether the defendant’s negligent conduct caused the plaintiff to be so bereft of reason as to cause her to attempt suicide. Jennifer Moss’ deposition is the only evidence before the court which gives an indication of her mental state before ingesting the drugs. At several points in her deposition, Jennifer stated that she knew the dangers of the drugs. When asked if she was ever warned about the sleeping pills she responded, “[m]y father had instructed never to touch his sleeping pills. My father had instructed never to go near his sleeping pills, never to touch them or to take them, and they were fatal.” She also admitted that she knew that teenagers had died from overdoses of sleeping pills.

In her deposition, the minor plaintiff also admitted that the suicide attempt was a voluntary, intentional act. She stated that she intended to take enough of the sleeping pills to die, and that she had decided to commit suicide before she ordered the pills.

We are convinced that the defendant’s act of filling the prescription and delivering it to the plaintiff’s doorstep were not the proximate cause of Jennifer Moss’ attempted suicide. From plaintiff’s deposition it is clear that she was aware of the act she attempted to commit. She knew the drugs could be fatal, she decided to kill herself before she ordered the drugs, she wrote a suicide note and she hid the prescription under her bed until late that same night in order that she would not be disturbed before the drugs could take effect. Therefore, we disagree with the plaintiffs that a material issue of fact exists for a jury to determine as to Jennifer Moss’ mental state.

Finally, the plaintiffs make a blanket assertion, without more, that summary judgment should not have been granted where the issue of intervening cause had been previously determined by virtue of the agreed order of the parties.

The defendant, on the other hand, asserts the well-established principle that there is no error in entering summary judgment after a motion to dismiss the complaint has been denied. (Morck v. Nicosia (1968), 91 Ill. App. 2d 327, 328, 235 N.E.2d 287, 288; Stanko v. Zilien (1961), 33 Ill. App. 2d 364, 368-69, 179 N.E.2d 436, 438.) This result is especially true where the motion to dismiss was entered by agreement of the parties, rather than by a ruling of the court. It follows that the trial court did not err in entering summary judgment in favor of the defendant.

Accordingly, for the reasons stated herein, the decision of the circuit court of Cook County is affirmed.

Judgment affirmed.

BUCKLEY, P.J., and GOLDBERG, J., concur.


author: JUSTICE JIGANTI

text:
    NORMAN PIERCE et al., Plaintiffs-Appellants, v. CHESTER JOHNSON ELECTRIC CO., Defendant-Appellee.
    First District (4th Division)
    No. 82 — 2561
    Opinion filed September 8, 1983.
    Edwin H. Conger and David L. Coghlan, both of Tenney & Bentley, of Chicago, for appellants.
    James P. Hilliard, of Chicago, for appellee.
   JUSTICE JIGANTI

delivered the opinion of the court:

This action raises the question of whether the trustees of a trust may maintain an action for money damages when the beneficiaries of the trust are members of an unincorporated association. The plaintiffs in this cause are the trustees appointed under a trust agreement between the Electrical Contractors’ Association of City of Chicago, Inc., and Local 134 of the International Brotherhood of Electrical Workers. The plaintiffs brought this action to recover liquidated damages and fringe benefit contributions due from the defendant, Chester Johnson Electric Company, under a collective bargaining agreement. All of the trustees are named plaintiffs in this suit. Prior to trial the defendant brought a motion to dismiss the plaintiffs’ complaint for failure to state a cause of action. It alleged that because the union was a voluntary unincorporated association the plaintiffs were merely an extension of the voluntary unincorporated association and therefore could not maintain an action at law under American Federation of Techni cal Engineers, Local 144 v. La Jeunesse (1976), 63 Ill. 2d 263, 347 N.E. 2d 712. The trial court granted the defendant’s motion to dismiss and this appeal followed.

In La Jeunesse, the Illinois Supreme Court held that an unincorporated association may not maintain an action for money damages in Illinois. Because an unincorporated association has no separate legal existence independent of the members who compose it, each member of the association must be named as a party in a suit brought by or against the association. While the supreme court recognized that this rule has been changed in a number of jurisdictions, it further observed that such changes in Illinois should come about through legislative action rather than court decisions.

In the instant case, the defendant does not dispute the existence of a trust or the fact that the creators of a trust agreement have the legal right to appoint trustees. Further, the defendant does not contest the fact that a trustee generally has the power in Illinois to bring suit on behalf of a trust. (Ill. Rev. Stat. 1981, ch. 17, par. 1665.) Rather, the defendant relies solely upon La Jeunesse to support its argument that because the trust was created by an unincorporated association, the trust is simply an extension of the association and is also precluded from maintaining an action for money damages. We disagree.

We do not believe that La Jeunesse applies to the facts presented in this case. In La Jeunesse, the Union brought suit against a number of its members to recover monetary fines which had been assessed against those members. Significantly, the court observed that, “an unincorporated association has no separate legal existence independent of the members who compose it.” (American Federation of Technical Engineers, Local Ill. v. La Jeunesse (1976), 63 Ill. 2d 263, 265-66, 347 N.E.2d 712, 714.) Thus, the Union could not bring suit unless all of its members were joined as parties. However, in the instant case, a written trust in Illinois possesses a distinct legal existence which is recognized by statute. (See Ill. Rev. Stat. 1981, ch. 17, par. 1651 et seq.) Furthermore, trustees possess a specific statutory power to sue in a representative capacity on behalf of a trust. (See Ill. Rev. Stat. 1981, ch. 17, par. 1665.) While the La Jeunesse plaintiff representative had no legal status which set them apart from the other members of the unincorporated association, the trustees in this case do not encounter a similar plight. Here, the plaintiff trustees operate in a separate, statutorily recognized legal existence which is independent of the status of the members who compose the unincorporated association. We believe it irrelevant that the trust was created by an unincorporated association or that the beneficiaries of the trust are members of an unincorporated association; the trust and trustees nonetheless possess a separate legal existence apart from the sum of the members who comprise the unincorporated association. Therefore, we find that the plaintiffs were proper parties to bring suit for money damages on behalf of the trust and we believe that the trial court improperly granted the defendant’s motion to dismiss.

For the foregoing reasons, the order granting the defendant’s motion to dismiss is reversed and this cause is remanded to the trial court for further proceedings consistent with this opinion.

Reversed and remanded.

ROMITI, P.J., and JOHNSON, J., concur.


author: PRESIDING JUSTICE WILSON

text:
    SANDOR SZABO, Plaintiff-Appellee and Cross-Appellant, v. THE BOARD OF EDUCATION OF COMMUNITY CONSOLIDATED SCHOOL DISTRICT 54, COOK COUNTY, et al., Defendants-Appellants and Cross-Appellees.
    First District (5th Division)
    No. 82 — 2729
    Opinion filed September 2, 1983.

      Wesley A. Wildman, John A. Relias, and Andrea R. Waintroob, all of Vedder, Price, Kaufman & Kammholz, of Chicago, for appellants.
    Peter M. Katsaros and Wayne Schwartzman, both of Hirsh & Schwartz-man, of Chicago, for appellee.
   PRESIDING JUSTICE WILSON

delivered the opinion of the court:

Sandor Szabo, a tenured physical education teacher assigned to the MacArthur Elementary School, was dismissed from his position by the Board of Education of School District 54, Schaumburg, Illinois (Board). The Illinois State Board of Education upheld plaintiff’s discharge on the ground that in 1979 and 1980 Szabo misused the school district’s sick leave and business leave policies. On administrative review (Ill. Rev. Stat. 1981, ch. 110, par. 264 et seq.), the trial court reversed and ruled that plaintiff’s conduct was remediable and that he should not have been discharged. The case was remanded to the Board to impose an alternative penalty.

The Board appeals the trial court’s decision that plaintiff’s conduct was remediable, that discharge was too harsh a penalty and that the cause should be remanded. Plaintiff alleges in his cross-appeal that he did not misuse leave policies and that the Board need not impose a lesser penalty. For the reasons that follow, we affirm in part and reverse in part.

From 1969 until November 1980, Szabo taught health and physical education at MacArthur Elementary School. During the last two years of his employment his teaching duties were performed between 8:15 a.m. and 3:30 p.m. He also held a part-time job in the late afternoon as a soccer coach at Harper Community College (Harper). Soccer was a varsity sport at Harper with regularly scheduled games against other teams. In addition to his coaching duties, Szabo was responsible for establishing the team’s soccer match schedule. He decided which colleges would be placed on the schedule, the times that the games would be played and the bus schedules. Szabo received $1,062 for each season that he coached.

In 1979, Harper College participated in five soccer matches, four of which Szabo allegedly either took a personal business day or sick day to attend. On November 9, the team made the midwest regional playoffs and a game was scheduled. Departure time from the college was 11 a.m. Since November 9 was a Friday, Szabo had to give a reason for seeking personal leave. (No reasons were required for personal leave on Tuesday through Thursday.) On November 6, Szabo submitted a written request for personal business leave for November 9. He stated that he would be absent because he had a court appearance in the morning and a tournament in the afternoon. The assistant superintendent of personnel, Ronald Ruble, and the school principal, Roy Johnson, informed Szabo that one-half day of personal business leave would be allowed for the court hearing but that Szabo would be docked a half day’s salary for his attendance at the soccer tournament. For the 1979 school year, Szabo was absent from his teaching duties at the elementary school five times. Each day of absence corresponded to a day that the Harper College team participated in a soccer competition that was not played on its campus.

During the 1980 school year, Szabo was absent seven times. Again, the absences corresponded to the days that the soccer team played an away game. Szabo either called in sick or took these absences as personal business days and as a result, his salary was never docked. The only date for which Szabo had taken time off at a salary deduction was, as previously stated, November 9, 1979.

School principal Roy Johnson reported Szabo’s absences to the administrator of personnel relations, Curtis Casey. Casey compared Szabo’s absences during 1979 and 1980 with the Harper soccer team schedule and discovered that with the exception of one occasion, Szabo had never been present at the elementary school on an afternoon when Harper played an away game. Casey notified the Board and based on his report, it voted to discharge Szabo. Subsequently a hearing was held before a hearing officer of the State board of education. Although unable to dispute the unfailing correlation of his sick and personal leave days to Harper College’s away game schedule, Szabo maintained that he had not abused the school district’s leave policy and that on each of the days in question he either had legitimate personal business or had been too ill to teach but not too ill to coach soccer. He denied that he had taken the afternoons off in order to arrive at Harper College earlier than his normal quitting time at the elementary school of 3:15 p.m. would have permitted. Szabo alleged that although he had scheduled the departure times for the games, the team buses never left before 3:30, which is when he said he would have arrived at Harper had he worked a full school day.

The hearing officer did not find Szabo’s explanations to be credible and concluded, as had the Board, that Szabo had wilfully abused the school district’s personal and sick leave policies in order to avoid pay deductions for time spent coaching soccer. The hearing officer upheld the Board’s determination that Szabo’s conduct was an irremediable cause for discharge and explained that Szabo’s conduct had deprived his students of his services, that he had taken the school district’s money under false pretenses and that he had committed a breach of trust which reflected badly on the other faculty members and on the school system. The officer ruled that since Szabo’s offense involved cheating and dishonesty, no notice of remediation was required.

Szabo filed a complaint in the circuit court of Cook County alleging that the hearing officer’s decision was contrary to the manifest weight of the evidence. The court ruled that although it was apparent that Szabo had lied about the reasons for his absences, his conduct was remediable. The case was remanded to the Board with instructions to impose a penalty other than discharge. This appeal followed. Plaintiff cross-appealed the court’s ruling that he misused leave policies and that a lesser penalty should be imposed.

OPINION

The controlling issue for our consideration is whether sufficient cause for plaintiff’s dismissal is shown by the record to be irremediable. The determination of whether causes for dismissal are remediable or irremediable is a question of fact which initially lies within the discretion of the Board. A reviewing court will not interfere with the Board’s decision unless the Board has acted in an arbitrary or capricious manner or the reasons formulated for the dismissal were against the manifest weight of the evidence. Gilliland v. Board of Education (1977), 67 Ill. 2d 143, 153, 365 N.E.2d 322; Lowe v. Board of Education (1979), 76 Ill. App. 3d 348, 355-56, 395 N.E.2d 59.

We note at the outset that in order to encourage teachers to work within the educational system and to assure teachers of experience and ability that rehiring will be based upon merit rather than upon reasons that are political, partisan or capricious, the School Code provides that a tenured teacher may only be discharged for cause. (Ill. Rev. Stat. 1981, ch. 122, par. 24 — 12; Morris v. Board of Education (1981), 96 Ill. App. 3d 405, 410-11, 421 N.E.2d 387.) In furtherance of the goal of protecting tenured teachers, the School Code provides that:

“Before setting a hearing on charges stemming from causes that are considered remedial, a board must give the teacher reasonable warning in writing, stating specifically the causes which, if not removed, may result in charges.” (Emphasis added.) Ill. Rev. Stat. 1981, ch. 122, par. 24 — 12.

If charges against a teacher are remediable but the teacher is not given proper notice in writing, the failure to provide the warnings required by the School Code deprives the Board of jurisdiction. Aulwurm v. Board of Education (1977), 67 Ill. 2d 434, 442-43, 367 N.E.2d 1337.

A written warning is not required when the teacher’s conduct is irremediable, however. The test in determining whether a cause for dismissal is irremediable is whether damage has been done to the students, faculty or school, and whether the conduct resulting in the damage could have been corrected had the teacher’s superiors warned her. (Gilliland v. Board of Education (1977), 67 Ill. 2d 143, 153, 365 N.E.2d 322.) Where causes which are remediable in nature continue for a long enough period of time and where the teacher refuses or fails to remedy them, they may be considered to be irremediable. Mc-Cutcheon v. Board of Education (1981), 94 Ill. App. 3d 993, 998, 419 N.E.2d 451.

In our opinion, the manifest weight of the evidence reveals that because Szabo’s pattern of improperly taking days off with pay could have been rectified upon proper notice, his conduct was remediable. Although he was informed of the applicable leave policy by the principal, Roy Johnson, and the assistant superintendent of personnel, Ronald Ruble, these conversations occurred before either administrator was aware that a violation had transpired. Similarly, Johnson’s remarks to Szabo that he must adhere to the proper channels to take time off to coach was not given in a context which indicated that he was aware of a repeated violation. Szabo was, therefore, never admonished to correct his conduct. Arguably, Szabo was put on notice that a salary deduction was the only acceptable means to account for the time he took for his coaching responsibilities; however, a written warning stating the consequences of Szabo’s absenteeism and failure to adhere to Board policy should have been issued. (Ill. Rev. Stat. 1981, ch. 122, par. 24 — 12.) There is nothing in the record to suggest that Szabo would not have corrected his modus operandi of taking sick leave and personal business days to coach had he been forewarned. The evidence presented therefore falls short of sustaining a charge of irremediability. The absence of a warning is fatal to the Board’s appeal, for, as previously explained, it deprives the Board of jurisdiction of this matter. Aulwurm v. Board of Education (1977), 67 Ill. 2d 434, 442-43, 367 N.E.2d 1337.

As to the second cause of dismissal, we again find no evidence in the record of any detrimental consequences suffered by the students, school or faculty as the result of Szabo’s conduct. The Board has failed in this regard as well to justify not giving the required statutory warning. Moreover, we are unpersuaded by the cases cited by the Board on this issue as those cases are distinguishable from the facts before us. The teacher in Christopherson v. Spring Valley Elementary School District (1980), 90 Ill. App. 3d 460, 462, 413 N.E.2d 199, stated in advance that she would disregard the board’s denial of her request for a five-day business leave to attend an education convention. Accordingly, the court held that the teacher’s wilful violation could not be remedied. (90 Ill. App. 3d 460, 462.) In Yuen v. Board of Education (1966), 77 Ill. App. 2d 353, 222 N.E.2d 570, the court upheld the board’s discharge of a teacher who, after having expressly been denied a request for absence, was found to have intentionally and wilfully violated the board’s ruling by leaving work and attending a teacher seminar. As in Christopherson, thé court ruled that once the wilful violation had occurred, the damage was done and could not be remedied. 77 Ill. App. 2d 353.

Clearly, the distinguishing factor in each of the above cited cases is that the teacher’s conduct could not have been corrected even if a written warning had been given. In each case the teacher announced in no uncertain terms his and her intention to defy the board’s denial of a request for leave. Such is not the case here. Szabo did not exhibit hostile defiance of his employer and did not erode the disciplinary authority of the Board. We therefore hold that defendants were not irremediably harmed and that the Board’s decision was against the manifest weight of the evidence.

We are compelled to next address the question of Szabo’s alleged cheating the school district of money by taking leave with pay under false pretenses. In this regard, the hearing officer noted that to classify Szabo’s conduct as theft would be overly harsh:

“Where outright theft of school property is concerned, the thief would probably find it impossible to justify his action either to himself or to others. Where sick leave or personal leave is concerned, some teachers begin to think in terms of ‘Those days are coming to me. They are mine.’ and it becomes very easy to justify to one’s self that there is nothing wrong with taking the day off even though one is not sick or engaged in an activity covered by the business leave provision. This is, of course, wrong, and may well constitute taking money under false pretenses, but the same social stigma does not commonly apply, although logically perhaps it should.”

The trial court also noted that the abuse of leave policies” *** is not unusual under the maladies of our system. The lack of scrupulousness in the serving of one’s employer is pervasive ***.”

These observations raise the question of whether a teacher’s use of his sick or personal business days to engage in part-time employment is, ipso facto, an irremediable act. We are of the opinion that in order to justify a dismissal for that reason alone, the Board must clearly articulate the restrictions placed on this privilege. In the case at bar, plaintiff was never expressly informed of any such restrictions, he was not instructed to refrain from working part-time nor was he warned in writing that to use his sick and business leave days to coach would result in his termination. In the absence of such warnings, we hold that plaintiff’s conduct was not an irremediable cause for dismissal.

Finally, we note that plaintiff and defendants agree that the school code has, in effect, an all or nothing policy which does not permit a lesser disciplinary penalty other than discharge in cases which have been adjudicated by the trial or appellate court. The pertinent portion of the code provides that “[i]f a decision of the hearing officer is adjudicated upon review or appeal in favor of the teacher, then the trial court shall order reinstatement and shall determine the amount for which the board is liable including but not limited to loss of income and costs incurred therein. Any teacher who is reinstated *** shall be assigned by the board to a position substantially similar to the one which that teacher held prior to that teacher’s suspension or dismissal.” (Emphasis added.) Ill. Rev. Stat. 1981, ch. 122, par. 24 — 12.

The language cited above indicates that a reviewing court is empowered to make only one of two decisions: to reinstate the teacher with no loss in pay or, to uphold the order of dismissal with no award of back pay. There is no language in the statute which suggests that a disciplinary penalty other than discharge is available. Accordingly, we find that the trial court erred in remanding this case to the Board.

For the reasons indicated, the trial court’s order reversing the Board’s order of dismissal is affirmed; the order remanding the case to the Board is reversed. The case is remanded to the circuit court to proceed in a manner consistent with the views expressed herein.

Affirmed in part; reversed in part and remanded.

LORENZ and MEJDA, JJ., concur.

      We note that the record includes copies of pamphlets entitled “Agreement between the Schaumburg Education Association and the Board of Education” for 1979-80 and 1980-81. Under a section entitled “Business Leave,” the agreement explains the procedure to be used to request time off and lists 10 common uses for business leave. These include religious holidays, legal hearings and weddings. Restrictions on the use of business leave or sick leave days are not addressed, however.


author: JUSTICE NASH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. VINCAS MATULIS, Defendant-Appellee.
    Second District
    No. 82 — 794
    Opinion filed September 8, 1983.

      J. Michael Fitzsimmons, State’s Attorney, of Wheaton (Linda S. Pieczynski and Barbara A. Preiner, Assistant State’s Attorneys, of counsel), for the People.
    Walter Bard Carroll, of Downers Grove, for appellee.
   JUSTICE NASH

delivered the opinion of the court:

The State appeals from a judgment of the circuit court dismissing an implied consent hearing, which had been requested by defendant, Vincas Matulis, on the grounds that the statement of the arresting officer required by section 11 — 501.1(d) of the Illinois Vehicle Code (Ill. Rev. Stat. 1981, ch. 95^2, par. 11 — 501.1(d)) was not sworn to by the officer.

Officer Pat O’Brien testified at the hearing that at 2 a.m. on December 31, 1981, he was on patrol in the city of Lisle and observed a Ford Pinto in the parking lot of Riedy’s Hardware Store. The doors of the car were locked, its headlights on and its engine was running; defendant was lying across the front seat. Attempts to arouse defendant were unsuccessful and Officer O’Brien and his partner opened the door with a device in order to ascertain defendant’s condition. Upon arousing defendant the officer noted he had bloodshot eyes, an odor of alcohol on his breath and slurred speech; when defendant left the car he staggered. Officer O’Brien was of the opinion defendant was intoxicated and requested that he perform certain field sobriety tests; defendant declined to do so. He was placed under arrest for driving while under the influence of intoxicating liquor (Ill. Rev. Stat. 1981, ch. 95½, par. 11 — 501) and transported to the police station. There, defendant was admonished pursuant to section 11 — 501.1(a)(2) of the Illinois Vehicle Code (Ill. Rev. Stat. 1981, ch. 95½, par. 11— 501.1(a)(2)) of his obligation to submit to a breath or chemical test for alcohol and the consequences of his failure to do so. Defendant refused to submit to any tests.

Subsequently, Officer O’Brien filed a report and affidavit of arresting officer, which provided:

“I hereby certify that I have placed the above named person under arrest, and that I had at the time of arrest reasonable grounds to believe that said person was driving a motor vehicle in this state while under the influence of intoxicating liquor in that: He was found in veh., could not be awakened by knocking, upon awakening he had slurred speech, a strong odor of alcohol, staggering gait.
I further certify that said person did willfully refuse to submit to the breath analyses when requested to do so in accordance with Section 11 — 501.1 of The Illinois Vehicle Code, after being informed of the possible consequences of his or her refusal.”

Although Officer O’Brien signed the report, it was not sworn to before a notary public or other officer capable of taking an oath.

The officer filed the report with the circuit clerk who thereupon notified defendant, pursuant to section 11 — 501.1(d), that his license would be suspended unless he requested an implied consent hearing. Defendant did then file a complaint in the circuit court for the hearing in which Officer O’Brien testified, under oath, as we have earlier described.

During cross-examination of the officer, however, the trial judge interrupted the proceedings, as follows:

“THE COURT: At this time I’m going to stop this and make five findings.

Number one, that the driver was placed under arrest for the offense of DWI; that the officer did have reasonable grounds; that the driver was informed orally and in writing; after he was so informed, he did refuse to submit; and number five, that this be dismissed on the Court’s motion because it is not a sworn statement. It is not notarized. [Referring to Report and Affidavit" of Arresting Officer.]

I think it will be overturned on appeal on that basis, so I’m not going to waste any more time with it.

MR. BIRKETT [prosecutor]: At this time I’d ask the - the officer is on the stand. I believe we can correct this by having the officer swear to it.

THE COURT: I think it goes to my jurisdiction. It should have been done a long time ago.

MR. BIRKETT: Sure. I would object to that. Under People versus Raefelt [sic], the Defendant waives any defect.

THE COURT: I don’t think that’s the case.

MR. BIRKETT: I have People versus Raefelt [sic].

THE COURT: It’s on my motion. Take it up and see if you’re right. I’m not going to suspend his license based on a defective complaint.”

The trial court thereupon dismissed the implied consent hearing and the State has appealed. The issue which we consider is whether failure of the arresting officer to file a sworn statement with the circuit clerk deprives the court of jurisdiction to conduct an implied consent hearing. We find it does not do so.

Initially, we note that an implied consent hearing is civil in nature and an adverse final judgment in- such a proceeding is appealable by the State in the same manner as other civil proceedings. (People v. Malloy (1979), 76 Ill. 2d 513, 519, 395 N.E.2d 381, 382-83; People v. Schuberth (1983), 115 Ill. App. 3d 302, 304, 450 N.E.2d 459, 461.) It is also well established that neither the implied consent statute itself (Ill. Rev. Stat. 1981, ch. 95½, par. 11 — 501.1) nor the sworn statement of the arresting officer provide the basis for the jurisdiction of the circuit court in an implied consent proceeding; rather, its jurisdiction flows from the Illinois Constitution. (People v. Babych (1983), 112 Ill. App. 3d 704, 708, 445 N.E.2d 921, 923; People v. Rehfeldt (1982), 103 Ill. App. 3d 368, 370, 431 N.E.2d 450, 452; People v. Fancher (1978), 56 Ill. App. 3d 632, 634-35, 371 N.E.2d 1291, 1293-94; Village of Park Forest v. Angel (1976), 37 Ill. App. 3d 746, 752-53, 347 N.E.2d 278, 283-84, appeal denied (1976), 63 Ill. 2d 564.) As in other civil matters, the failure of a party to object to deficiencies in the pleadings of an implied consent proceeding prior to trial constitutes a waiver and does not deprive the court of jurisdiction. People v. Babych (1983), 112 Ill. App. 3d 704, 708, 445 N.E.2d 921, 923; People v. Rehfeldt (1982), 103 Ill. App. 3d 368, 371, 431 N.E.2d 450, 453; Village of Park Forest v. Angel (1976), 37 Ill. App. 3d 746, 752-53, 347 N.E.2d 278, 283-84, appeal denied (1976), 63 Ill. 2d 564.

We conclude the trial court erred in dismissing sua sponte the implied consent hearing. Defendant had not objected to the lack of a sworn statement of the arresting officer and has waived that procedural error. (People v. Rehfeldt (1982), 103 Ill. App. 3d 368, 371, 431 N.E.2d 450, 453.) The deficiency was not jurisdictional and could have been cured by a timely objection by defendant. Nor may defendant argue he was deprived of due process in this proceeding. People v. Batchelder (1982), 107 Ill. App. 3d 81, 437 N.E.2d 364, which he cites, was reversed with the United States Supreme Court holding that the Illinois implied consent statute comports with due process of law. Illinois v. Batehelder (1983), 463 U.S___ 77 L. Ed. 2d 1267, 103 S. Ct. 3513.

Accordingly, the judgment of the circuit court will be reversed and the cause remanded for a new implied-consent hearing. As the trial judge expressed his view on the merits before defendant had an opportunity to present evidence, the hearing must be before another judge.

Reversed and remanded.

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


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. JAMES L. HALL, Defendant-Appellee.
    Second District
    No. 82 — 420
    Opinion filed July 18, 1983.
    Charles R. Hartman, State’s Attorney, of Freeport (Phyllis J. Perko, of State’s Attorneys Appellate Service Commission, of counsel), for the People.
    G. Joseph Weller and Paul J. Glaser, both of State Appellate Defender’s Office, of Elgin, for appellee.
   JUSTICE NASH

delivered the opinion of the court:

The State appeals from a judgment of “acquittal” of defendant, James L. Hall, to the offense of robbery (Ill. Rev. Stat. 1981, ch. 38, par. 18 — 1(a)) contending the trial court abused its discretion in denying the State’s motion for continuance of trial and erred in directing a verdict of not guilty where no evidence was presented. The State also requests that the costs of this appeal be taxed against defendant.

An indictment was returned on March 25, 1982, charging defendant with home invasion (Ill. Rev. Stat. 1981, ch. 38, par. 12 — 11(a)(2)) and robbery and, after arraignment, jury trial commenced on May 4, 1982, at which Judge Lawrence Smith presided. Stephenson County State’s Attorney Charles Hartman and Assistant State’s Attorney Michael Phillips represented the State in trial. Eight witnesses were called by the State, three of whom were examined by Mr. Phillips, who also gave the State’s closing argument. All of the evidence was presented in one afternoon and at close of the State’s case the trial court directed a verdict of not guilty to the offense of home invasion and the remaining charge of robbery was submitted to the jury. It was unable to agree upon a verdict and a mistrial was declared. With agreement by the State, the case was then set for retrial on May 11.

On May 6, 1982, State's Attorney Hartman filed a motion for continuance of trial and at a hearing on May 10 advised the court he was committed to another trial on May 11 and requested a new trial date in the first half of June. Judge Smith granted the motion, in part, continuing trial to May 18, and advised “the State can renew its motion and we may continue it.” On May 14, Assistant State’s Attorney Phillips filed a second motion for continuance which stated that State’s Attorney Hartman was assigned to try the case and would be out of town until June 1 in service with the United States Army Reserves. This motion was heard and denied by the trial court on May 17.

Assistant State’s Attorney Phillips renewed the motion for continuance the next day when the case was called for trial as scheduled. He advised the court of the State’s Attorney’s continued absence on military duty and that Phillips had been instructed not to try the case. Phillips also stated he was not familiar with all aspects of the case as he had talked to only the three police witnesses and had never interviewed the four civilian witnesses. Phillips advised the court he could not proceed with the trial and asked leave to withdraw from the courtroom.

Judge Smith again denied a continuance noting Assistant State’s Attorney Phillips had participated with the State’s Attorney in the first trial and had a transcript of the evidence there heard; that the testimony took less than two hours to present and that Phillips was an experienced prosecutor. The judge noted defendant was in custody unable to post bond and would be prejudiced by a delay. The court thereupon granted the assistant State’s Attorney permission to leave the courtroom. Phillips left and the judge, with defendant and his counsel present, empaneled a jury. No evidence was presented on behalf of the State and the trial court then granted defendant’s motion for the directed verdict of acquittal from which the State appeals.

We consider first whether the trial court abused its discretion in denying the continuance sought by the State and conclude it did not do so under these circumstances.

Whether to grant or deny a motion for continuance is within the sound discretion of the trial court, and it will consider the diligence of the movant in weighing the exercise of its discretion. (Ill. Rev. Stat. 1981, ch. 38, par. 114 — 4(e); People v. Williams (1982), 92 Ill. 2d 109, 116, 440 N.E.2d 843, 847-48; People v. Verstat (1983), 112 Ill. App. 3d 90, 97-98, 444 N.E.2d 1374, 1380-81; People v. Pruden (1982), 110 Ill. App. 3d 250, 258, 442 N.E.2d 284, 290.) Where the grounds upon which a continuance is sought is the unavailability of counsel, it has been held not to be an abuse of discretion to deny the motion where co-counsel was available and could adequately try the case. (People v. Nobles (1980), 83 Ill. App. 3d 711, 713, 404 N.E.2d 330, 332-33; People v. Miller (1958), 13 Ill. 2d 84, 112, 148 N.E.2d 455, 470; People v. Davis (1950), 406 Ill. 215, 219, 92 N.E.2d 649, 651.) Assistant State’s Attorney Phillips had represented his office at the preliminary hearing and arraignment of defendant. He was present throughout the first trial and conducted a substantial part of it. That trial was short, requiring less than two hours, and there is no indication the retrial would be more complicated. Phillips was experienced in handling jury trials, and was not held to trial in any other matter at the time he sought a continuance because of the absence of the State’s Attorney. (Compare, People v. Grimm (1979), 74 Ill. App. 3d 514, 515, 392 N.E.2d 1138, 1139-40; People v. Edwards (1981), 97 Ill. App. 3d 407, 412, 422 N.E.2d 1117, 1121.) The decision whether to grant a continuance of trial depends upon the circumstances existing at the time of the request (People v. King (1977), 66 Ill. 2d 551, 557, 363 N.E.2d 838, 840), and the determination of the trial court will not be disturbed on review absent a clear abuse of its discretion. People v. Hayes (1972), 52 Ill. 2d 170, 287 N.E.2d 465.

The State misplaces reliance upon section 114 — 4(e) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 114 — 4(e)) in arguing it was entitled under the statute to a further court date for trial. That statute applies only where one year has passed since the filing of an indictment or information and the trial court has found that the State lacked diligence in bringing a case to trial. (See, e.g., People v. Verstat (1983), 112 Ill. App. 3d 90, 98-99, 444 N.E.2d 1374, 1380-81.) As the indictment in the present case was filed in March 1982 and the continuance was sought and denied in May, the statute was not implicated.

We agree, however, that procedures followed by the trial court after denying the State’s motion for a continuance constituted an unauthorized “sham” trial of the type which has been repeatedly condemned by reviewing courts. See People v. Deems (1980), 81 Ill. 2d 384, 389, 410 N.E.2d 8, 11, cert. denied (1981), 450 U.S. 925, 67 L. Ed. 2d 355, 101 S. Ct. 1378; People v. Verstat (1983), 112 Ill. App. 3d 90, 101, 444 N.E.2d 1374, 1383; People v. Edwards (1981), 97 Ill. App. 3d 407, 411-12, 422 N.E.2d 1117, 1121; People v. Shields (1979), 76 Ill. 2d 543, 544-48, 394 N.E.2d 1161, 1163, cert. denied (1980), 445 U.S. 917, 63 L.Ed. 2d 602, 100 S. Ct. 1279; People v. Dellecarto (1978), 67 Ill. App. 3d 490, 494, 384 N.E.2d 902, 906.

In People v. Deems the supreme court described a “trial” conducted without participation by the State after its motion for a continuance was denied as a sham, an artifice employed by the trial court to dismiss the case for want of prosecution. In People v. Verstat this court recently discussed the circumstances under which a trial court may effect the dismissal of a criminal charge without trial. Suffice it to note here that none of the grounds authorizing that action are present in this case.

Defendant’s suggestion in this court that his constitutional right to a speedy trial was violated, thus supporting the trial court’s action, was not raised below nor was the trial judge’s action predicated upon the alleged violation of such right. This issue has been waived but, in any event, the argument is without merit. If a defendant is retried within a reasonable time following a mistrial his constitutional right to a speedy trial has not been violated. (People v. Bazzell (1977), 68 Ill. 2d 177, 182, 369 N.E.2d 48, 50; People v. Dixon (1980), 87 Ill. App. 3d 814, 817, 410 N.E.2d 252, 255.) The mistrial here occurred May 5, 1982, and the State was prepared to retry the case in early June when the State’s Attorney returned. There clearly was no constitutional speedy trial basis on May 18 for the trial court to dismiss the case. (See People v. Dixon (1980), 87 Ill. App. 3d 814, 817, 410 N.E.2d 252, 255.) The defendant agrees in his brief there are no statutory speedy trial considerations present in this case. See Ill. Rev. Stat. 1981, ch. 38, par. 103 — 5(a); People v. Richards (1980), 81 Ill. 2d 454, 459, 410 N.E.2d 833, 836.

Defendant also relies upon dictum in People v. Thomas (1975), 24 Ill. App. 3d 907, 908, 322 N.E.2d 97, to support the judgment of the trial court. In Thomas the reviewing court held that a trial court was not authorized to dismiss a criminal charge for want of prosecution. It also suggested, however, that where a motion for continuance has been properly denied the case should be called for trial and, if no evidence or insufficient evidence is presented by the State, a judgment of acquittal may be entered by the court. Certainly, if the State presents evidence which is insufficient to convict, a judgment of acquittal will be properly entered. Where no evidence has been presented by the State and it has not participated in a trial, however, as in the present case, we conclude the holdings of People v. Deems and People v. Verstat preclude the trial court from conducting a sham trial and acquitting defendant.

The State has requested that costs be taxed against defendant for the State’s Attorney’s fee provided for an appeal by section 8 of “An Act concerning fees and salaries ***” (Ill. Rev. Stat. 1981, ch. 53, par. 8). It has been held, however, that a conviction is a prerequisite for the assessment of costs against a defendant. (People v. Halliday (1979), 73 Ill. App. 3d 615, 618, 392 N.E.2d 389, 391; People v. Lee (1982), 109 Ill. App. 3d 870, 874, 441 N.E.2d 403, 406; see also People v. Nicholls (1978), 71 Ill. 2d 166, 174, 374 N.E.2d 194, 197; In re W.W. (1983), 97 Ill. 2d 53. As defendant has not been convicted in this case, there is no authority for taxing this cost against him.

Defendant has contended in his brief that this appeal by the State is moot and should be dismissed. He argues that at a hearing held May 28, 1982, of a petition to revoke defendant’s sentence to conditional discharge which had been entered on unrelated charges, the trial court found him not guilty of the conduct on which the pending robbery offense was premised.

A supplemental record filed herein by defendant discloses that on February 26, 1982, he entered a plea of guilty to the offense of criminal damage to property (Ill. Rev. Stat. 1981, ch. 38, par. 21 — 1) and was placed on conditional discharge for one year. After leaving the courtroom defendant went to the residence of Debra Parker where he encountered his estranged wife, Earlene Gibson. The robbery charge upon which this appeal is premised is alleged to have occurred at that time, together with home invasion, battery, theft and criminal damage to property. On that same day the State filed a petition to revoke the conditional discharge which had been imposed that morning in which it alleged as violations battery, theft and criminal damage to property. The State also filed separate charges for home invasion and robbery and on March 25, 1982, an indictment was returned on those offenses.

While defendant was incarcerated in the county jail under the indictment and revocation petition, his alleged conduct there led to the filing by the State on May 24, 1982, of a second petition to revoke his conditional discharge. It alleged as grounds aggravated assaults against officers on March 30 and April 11, and criminal damage to jail property on May 23,1982.

As earlier noted, the first trial under the indictment resulted in the dismissal by the court of the home invasion charge and a mistrial on March 5 as to the robbery. And, when the State declined to proceed with the retrial on May 18, the judgment of acquittal to robbery was entered and the State filed its notice of appeal to this court on May 26.

On May 28, a revocation hearing was held before Judge Dexter Knowlton at which evidence was presented by the State relating to the May 24 petition charging misconduct by defendant in the county jail. No evidence was presented relating to the offenses which arose from defendant’s alleged conduct on February 26 which resulted in the first petition for revocation and the indictment. At the conclusion of the hearing Judge Knowlton found that two of the three counts of the May 24 petition were established and, after revoking defendant’s conditional discharge, sentenced him to 364 days in the Department of Corrections. Defendant’s counsel thereupon requested that the court enter a directed verdict in favor of defendant as to the matters alleged in the February 26 petition, advising the court that Judge Smith had previously acquitted defendant of similar charges in the other proceeding. Judge Knowlton noted that no evidence had been presented in the hearing relating to theft or criminal damage to property occurring on February 26 and stated, “defendant is discharged, found not guilty of any violation on that petition.”

From this factual basis defendant now argues that principles of double jeopardy and collateral estoppel bar further prosecution of the February 26 robbery offense rendering this appeal moot.

We note first that jeopardy does not attach at a revocation hearing and defendant’s double jeopardy argument is thus without merit. (People v. Newell (1982), 105 Ill. App. 3d 330, 334-35, 434 N.E.2d 349, 353-54; People v. Warne (1976), 39 Ill. App. 3d 894, 897-98, 350 N.E.2d 836, 839, cert. denied (1977), 429 U.S. 1107, 51 L. Ed. 2d 559, 97 S. Ct. 1139.) Nor was there any judgment entered in the revocation proceeding which is res judicata of the robbery offense. The State was not required to join at the May 28 hearing all grounds for revocation known to it. As no evidence was offered and no ultimate fact relating to the robbery offense determined in the revocation hearing, collateral estoppel does not apply. People v. Bone (1980), 82 Ill. 2d 282, 288, 412 N.E.2d 444, 446-47, cert. denied (1981), 454 U.S. 839, 70 L. Ed. 2d 120, 102 S. Ct. 145.

Accordingly, the judgment of the circuit court is reversed and the cause remanded for further proceedings.

Reversed and remanded.

REINHARD and UNVERZAGT, JJ., concur.