text:
      In re APPLICATION OF KANE COUNTY COLLECTOR.—(VIRGINIA J. THARP, Petitioner-Appellant, v. ROBERT CRITTON, County Treasurer of Kane County, Trustee, Respondent-Appellee.)
    Second District
    No. 80-850
    Opinion filed December 4, 1981.

      Steven A. Salzman, of Schmidt and Ginsberg, Ltd., of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Ronald P. Stake, Robert J. Morrow, and David R. Akemann, Assistant State’s Attorneys, of counsel), for appellee.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

The petitioner lost her home, located at 825 Royal Lane, Dundee, Illinois, through failure to pay real estate taxes assessed against the property for the year 1975, payable in 1976. A tax deed was issued to Michael Lap at on December 21,1979, after the period of redemption had expired. Thereafter, the petitioner brought a petition for indemnity under the provisions of section 247a(4) of the Revenue Act of 1939 (111. Rev. Stat. 1979, ch. 120, par. 728a(4)) and was awarded $1 as indemnity.

On appeal, the petitioner asserts that the trial court erred in not awarding indemnity in the amount of the fair cash value of the subject property. More specifically, she maintains that the trial court’s award of $1 compensation is against the manifest weight of the evidence; that such award is contrary to the express language of section 247a(4) of the Revenue Act of 1939 (Ill. Rev. Stat. 1979, ch. 120, par. 728a(4)); and that the $1 award frustrates the purpose of the statute and the legislative intent (Ill. Rev. Stat. 1979, ch. 120, par. 728a(5)).

The defendant county treasurer, as trustee of the fund created by the statute, contends that the decision of the trial court was not an abuse of discretion; that the trial court had the discretion to enter judgment in favor of the petitioner for less than the fair market value of the property, after deducting mortgages and liens, if equity warrants such an award, and that the trial court could take into consideration the condition and income of the fund in making its determination.

Section 247a of the Revenue Act of 1939 is designed to ameliorate in some instances the harsh consequences of a tax foreclosure. It provides that each person purchasing a tract or lot under tax foreclosure shall pay a fee of $10 to the county collector “for the purpose of an indemnity fund.” (Ill. Rev. Stat. 1979, ch. 120, par. 728a(2).) Section 247a(4) of the Revenue Act of 1939 reads as follows:

“Any owner of real estate sold pursuant to any provision of this Act at a sale held subsequent to September 1, 1970, who without fault or negligence of his own sustains loss or damage by reason of the issuance of a tax deed pursuant to Sections 266 or 266a, and who is barred or in any way precluded from bringing an action for the recovery of such real estate or any owner or property containing four or less dwelling units who resided thereon the last day of the period of redemption who, in the opinion of the Court which issued the tax deed order, is equitably entitled to just compensation, has the right to indemnity for the loss or damage sustained. Indemnity shall be limited to the fair cash value of the real estate as of the date that the tax deed was issued, less any mortgages or liens thereon.” (Emphasis added.) (Ill. Rev. Stat. 1979, ch. 120, par. 728a(4).) (The underscored words represent the language added by Public Act 81-512, and the statute, as amended, became effective on January 1,1980.)

In addition, section 247a(5) of the same Act provides:

“The court shall liberally construe this Section [section 247a] to provide compensation wherever in the discretion of the Court the equities warrant such action.” Ill. Rev. Stat. 1979, ch. 120, par. 728a(5). (This language was likewise inserted by Public Act 81-512 and also became effective on January 1, 1980.)

Before addressing the merits of the petitioner’s contention on appeal, we point out that the respondent had argued in the trial court that the statute, as amended, did not govern the present case. In this regard, the defendant asserted that the amended statute did not apply to cases where, as here, the tax sale was held and the tax deed issued prior to the effective date of the amendatory provisions. Apparently the respondent was of the view that the September 1, 1970, date of section 247a(4) applied only to the “without fault or negligence” language of the statute and not the words inserted by Public Act 81-512. The respondent indicated, however, that the trial court could apply either the “equitably entitled to just compensation” standard or the “without fault or negligence” test. The trial court first assumed at trial and then concluded in its judgment that the present case fell within the purview of the amended statute and accordingly determined that negligence on the part of the petitioner would not bar her from recovery. In this court' the respondent again attempts to raise the question whether the trial court correctly determined that the amendatory provisions of Public Act 81-512 apply to the present case. Upon the petitioner’s motion to strike, this court struck this argument from respondent’s brief since respondent had not cross-appealed on this issue. Village of Arlington Heights v. National Bank (1977), 53 Ill. App. 3d 917, holds that a specific negative finding below against an appellee is not before an appellate court unless cross-appealed. In any event, however, we believe the trial court correctly ruled that the petitioner came within the protection of section 247a(4) of the Revenue Act of 1939. We therefore confine our consideration to the question raised as to whether the trial court erred in allowing only a token award which confirms the petitioner’s right to indemnity but gives her no relief.

The evidence in this case indicates that the petitioner is a registered nurse who was employed in such capacity, from 1974 until the time of trial. After completing high school, she studied for three years in a nurses’ training program. Prior to his death in October 1968, petitioner’s husband, Harry G. Tharp, managed all the business affairs for the family, including the payment of all bills. Subsequent to her husband’s death, Gordon Humphrey, the petitioner’s attorney, began to assist petitioner in the management of her business affairs. The attorney showed her how to write checks, pay the bills, manage her checking account, and prepare her income tax returns. Despite his help, petitioner frequently had problems paying her telephone, electric and insurance bills on time and experienced difficulty writing out her checks correctly. While she had the money to pay her bills, sometimes she forgot to pay them. Petitioner further testified that, subsequent to her husband’s death, she began to pay the real estate taxes on her home upon being reminded to do so by her attorney. In 1975 the petitioner’s attorney died, at which time she began to assume the responsibility for the payment of her bills.

The petitioner “supposed” she received a 1975 tax bill around March 1, 1976, and acknowledged that she did not pay it. She stated that she failed to pay the real estate tax bill because she felt “completely lost” after the recent death of her attorney. She remembered receiving a “Take Notice” stating that her property had been sold for delinquent taxes; although she read this notice, she did not understand it. The petitioner stated that she did not do anything upon being advised that her house had been sold for the failure to pay back taxes because she felt overwhelmed by financial and business affairs. Her only thought was that if her attorney were alive, he would know what to do. The petitioner related that she did have sufficient funds to pay the real estate taxes in 1976. Finally, she stated that her daughter was sick often during the years 1975 through 1979.

Mary Tharp, petitioner’s daughter, corroborated her mother’s testimony that her father managed all the business affairs of the family; that Attorney Humphrey helped her mother quite a bit with the payment of bills and the writing of checks after her father died, and that Mary was often ill. Mary further related that her social security benefits were discontinued for a two-year period when she was in school because her mother failed to respond to an inquiry from the social security office regarding whether her daughter was still enrolled in school. Lastly, the parties stipulated that the fair market value of the subject property was $75,000 at the date that the tax deed was issued and that there were no mortgages or liens outstanding against the property as of that date.

Since this appears to be a case of first impression, we have no direct precedents to aid us. The cases relied upon by the parties on appeal (In re Application of County Collector (1978), 59 Ill. App. 3d 494; Garcia v. Rosewell (1976), 43 Ill. App. 3d 512) were adjudicated under the provisions of the prior statute and addressed the question whether the petitioners in those cases were precluded, as the result of fault or negligence on their part, from receiving indemnification for the loss or damage sustained by the issuance of a tax deed.

In Garcia v. Rosewell (1976), 43 Ill. App. 3d 512, the court determined that the plaintiff was not negligent or at fault within the meaning of the statute where there was evidence her failure to redeem the property was the result of fraud or deception and given the fact that she had a dying husband and was caring for nine children at the time. The court, noting that the plaintiff could not be held to the highest standard of business conduct under such circumstances, reversed the cause and remanded it to the trial court with directions to determine the value of the property and enter judgment for the plaintiff accordingly. The Garcia court, recognizing that the statute was enacted to provide a remedy for the harsh results brought about by the legislative policy favoring the collection of taxes and the merchantability of tax deeds, emphasized that the statutory purpose is to do equity and that each case must be decided on its own facts. (43 Ill. App. 3d 512, 517-18.) On the other hand, in In re Application of County Collector (1978), 59 Ill. App. 3d 494, the court distinguished Garcia and determined that the petitioner’s loss was the result of fault or negligence on her part where the evidence disclosed that she was well educated, had taken courses in real estate and real estate law, had previously redeemed property sold for taxes, and did not seek advice because she didn’t want to impose upon her friends. The court concluded that, the petitioner’s failure to redeem her property was the result of indifference, inaction, or a willful failure to act. 59 Ill. App. 3d 494, 498-99.

The thrust of the petitioner’s contention on appeal is that, once the trial court determined that she was entitled to compensation under the amended statute as the result of the issuance of a tax deed, the court below was bound to enter judgment in her favor for the fair cash value of her home ($75,000), because section 247a(4) states that any owner who is equitably entitled to receive just compensation “has the right to indemnity for the loss or damage sustained.” (Ill. Rev. Stat. 1979, ch. 120, par. 728a(4).) In support of her position here, she relies on the court’s mandate in Garcia, set forth above, which appears to require the trial court, upon remand, to enter judgment in the amount of the fair market value of the property.

In the case at hand, the parties stipulated that the value of the property as of the date the tax deed issued was $75,000. The parties further stipulated, that there were no mortgages or liens against the property as of the date the tax deed issued. A real estate expert’s written appraisal of the property setting the value as of the date the tax deed issued at $75,000 was offered and admitted into evidence by stipulation. No other evidence as to value was offered at trial.

In awarding indemnity of $1, the trial court’s reasoning was stated as follows:

“However, when it comes to the equity situation, I feel that taking the record as a whole and considering it all, — the fact that this woman fortunately is employed, has a better than average job, has a better than average income and can take care of herself — I find few equities with her.
If this were an elderly, senile couple that this had happened to that could not support themselves and were destitute, this sort of conduct might call for a more generous award.
And, of course, the practicality of the matter which really isn’t determinative, is that there is very little money in this fund in Kane County and any substantial award would have to be paid over a number of years, which then in turn, might well block some future claimant who was in a far more destitute situation.
I will adopt the suggestion of the State’s Attorney— and find the recovery for the plaintiff in the amount of $1.”

It is clear that the trial court was concerned with the “equities of the situation” in determining the amount of indemnity. We determine this to be the wrong approach and therefore reverse. In our view, the court must make a two-pronged determination. First, the court must determine if the petitioner is “equitably entitled to just compensation” and secondly, the court must determine the amount of such recovery.

Once the trial court has determined, as here it so determined, that the petitioner is equitably entitled to a recovery against the fund, then all that remains is for the trial court to make the determination of the amount.

The statute delineates the amount to be recovered by one such as petitioner who:

“* 9 9 in the opinion of the Court which issued the tax deed order, is equitably entitled to just compensation, has the right to indemnity for the loss or damage sustained. Indemnity shall be limited to the fair cash value of the real estate as of the date that the tax deed issued, less any mortgages or liens thereon.” (Emphasis added.) Ill. Rev. Stat. 1979, ch. 120, par. 728a(4).

This section of the statute fixing the amount of damages is not left to the discretion of the trial court, but rather mandates that there is a “right to indemnity for the loss or damage sustained.” Here, the stipulated and uncontradicted loss was in the amount of $75,000. The use of the phrase “limited to” clearly is intended to prevent a property owner from recovering more than the equity in the property by requiring that the value of any liens or mortgages be deducted from the market value. This limiting language fixes a date certain to determine the amount of recovery and bars recovery of any other actual, consequential or punitive damages as well as fees, costs and expensés of litigation.

Because the trial court applied the wrong standards in this case, we reverse and remand for a new trial on the issues.

The respondent has argued that the trial court should consider the condition and income of the fund in making its determination. The trial court alluded to this but found that the amount of the fund was not determinative. We agree with the trial court in this regard.

For the foregoing reasons, the judgment of the circuit court of Kane County is reversed and the cause is remanded for a new trial.

Judgment reversed; cause remanded for a new trial.

REINHARD and VAN DEUSEN, JJ„ concur.


source: Caselaw Access Project

author: JUSTICE LINDBERG

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES B. WEST III, Defendant-Appellant.
    Second District
    No. 81-24
    Opinion filed December 7, 1981.
    R. Kent Heller, of Harlan Heller, Ltd., of Aurora, for appellant.
    Dallas C. Ingemunson, State’s Attorney, of Yorkville (Grant S. Wegner, Assistant State’s Attorney, of counsel), for the People.
   JUSTICE LINDBERG

delivered the opinion of the court:

The defendant was charged with and found guilty of a misdemeanor theft, in violation of Section 16 — 1(a)(1) of the Criminal Code of 1961 (111. Rev. Stat. 1979, ch. 38, par. 16 — 1(a)(1)). A six-member Kendall County jury found that the defendant had taken, without permission, several new railroad ties belonging to the Burlington Northern Railroad. He was placed on supervision for nine months in order to pay a fine of $100 and court costs in the amount of $30.

The defendant is employed by T&L Manufacturing as a foreman. On June 13, 1980, West’s employer asked him to get some railroad ties from the Burlington Northern Railroad Company. The defendant obtained a permit authorizing him to take “1/2 ties, more or less.” Allegedly it was explained to him at that time that a 1/2 tie is 3M to 4 feet long. On June 19 the defendant went, as he had been directed, to the stretch of track between Earlville and Plano, and removed 18 long, allegedly unused ties from the .right-of-way. An officer of the Oswego Police Department stopped the defendant and inquired about the ties he had on his truck. The defendant produced the permit authorizing him to take “1/2 used ties, more or less.” When asked why he had taken whole ties, defendant replied that he would rather have the long ones to use as parking lot abutments. The defendant was informed of his Miranda rights and later charged with theft under $150.

The defendant alleges error in three instances: (1) he argues that the trial court erred in quashing two pretrial subpoenas; (2) he contends that the trial court erred in failing to strike the testimony of Phyllis Dolan, an employee of the railroad; and (3) he claims that the State did not present enough evidence to justify a verdict of guilty.

We address the subpoena issue first. The defendant’s contention is that the trial court erred in quashing two pretrial subpoenas served by him upon the Burlington Northern. It is defendant’s position that by quashing these subpoenas the trial court violated his sixth amendment right to compulsory process. We reject the notion that the defendant’s right to compulsory process was violated and further find that the trial court’s action was consistent with Illinois case law concerning the use of pretrial subpoenas.

The compulsory process clause is one of five provisions that the framers of the United States Constitution consolidated in the sixth amendment as a basic code of procedure for use in criminal trials. (Washington v. Texas (1967), 388 U.S. 14, 18 L. Ed. 2d 1019, 87 S. Ct. 1920.) In 1967, the Supreme Court of the United States ended a 180-year silence concerning the compulsory process clause in its decision in Washington. In that case the court struck down a statute which provided that persons charged as principals, accomplices, or accessories in the same crime could not testify in behalf of one another. The court held that the statute violated the sixth amendment guarantee of compulsory process because it “denied him [the defendant] the right to put on the stand a witness who was physically and mentally capable of testifying to events that he had personally observed, and whose testimony would have been relevant and material to the defense.” (Emphasis added.) Washington v. Texas (1967), 388 U.S. 14, 23, 18 L. Ed. 2d 1019, 1025, 87 S. Ct. 1920, 1925.

Subsequent cases applying the compulsory process clause also centered on the defendant’s right to obtain and present relevant material testimony at trial. (See, for example, Webb v. Texas (1972), 409 U.S. 95, 34 L. Ed. 2d 330, 93 S. Ct. 351 (threats by a trial judge which caused defendant’s witness to refuse to appear violated the sixth amendment); United States v. Nobles (1975), 422 U.S. 225, 45 L. Ed. 2d 141, 95 S. Ct. 2160 (the sixth amendment may not be invoked as a justification for presenting a half-truth).) In the instant case, no action of the trial judge has worked to deprive the defendant of his right to call witnesses at trial. Rather, the trial court ruled on the propriety of two pretrial subpoenas.

In United States v. Nixon (1974), 418 U.S. 683, 41 L. Ed. 2d 1039, 94 S. Ct. 3090, the Supreme Court of the United States set out a four-point test for determining whether the issuance of pretrial subpoenas is required by the sixth amendment. A party must show that (1) the material sought is evidentiary and relevant; (2) the material sought is not otherwise reasonably procurable by the exercise of due diligence in advance of trial; (3) that the moving party cannot properly prepare for trial without such production and the failure to obtain the materials sought may tend to unreasonably delay the trial; and (4) the application is made in good faith and is not intended as a general “fishing expedition.” Neither of the subpoenas served upon the Burlington Northern by the defendant meets the Nixon standard.

The first subpoena demanded that the railroad produce a copy of the authorization given to defendant as well as any reports of any detectives or any statements taken by employees or agents of the railroad. A copy of the authorization was clearly otherwise procurable in advance of trial. The State provided the requested document one full month in advance of trial pursuant to the defendant’s later motion for discovery. The demand for reports included no limitation as to time, place, or subject matter and thus are of questionable relevance and constituted a general “fishing expedition.”

The second subpoena sought as witnesses, the employees of the railroad who worked on the stretch of track involved in this case and further commanded that payroll records for one week prior to June 19, 1980, and “all diaries, summaries, reports, notes, or memoranda of crew foreman, supervisory personnel, or section chiefs regarding this stretch of railroad” be produced. Such a broad demand is of questionable relevance. Moreover, it seems clear that it was intended as a catch-all request thus violating the prohibitions set out in Nixon. A similar demand was denied by the Supreme Court in the case of Bowman Dairy Co. v. United States (1951), 341 U.S. 214, 95 L. Ed. 879, 71 S. Ct. 675. We reject defendant’s contention that the trial court held that he was not entitled under any circumstances to cause pretrial subpoenas to issue. In its order quashing defendant’s subpoenas the court found that “the defendant has no right to subpoena the Burlington Northern as heretofore subpoenaed.” Argument which had taken place before the court indicated that the materials sought by the defendant would be obtainable by other methods. It appears that the court found the form of the subpoena unreasonable and the evidence sought of questionable relevance and therefore quashed the subpoenas.

We further note that the order of the trial court is not inconsistent with Illinois case law concerning the use of pretrial subpoenas. The defendant relies heavily on our supreme court’s holding in People ex rel. Fisher v. Carey (1979), 77 Ill. 2d 259, 396 N.E.2d 17. We believe this reliance is misplaced. In Fisher, the supreme court rejected the theory that a pretrial subpoena can issue only if defendant has unsuccessfully attempted to obtain the material sought through discovery. Fisher did not outline an absolute right to resort to subpoena. The court noted and applied the Nixon standard just as the trial court did in the case at bar. Of course, the Nixon and Fisher opinions were limited to an examination of the circumstances which trigger a sixth amendment right to subpoenas duces tecum. We note that there is no general constitutional right to depose witnesses prior to trial. Melancon v. Superior Court (1954), 42 Cal. 2d 698, 268 P.2d 1050.

Nor are we swayed by defendant’s interpretation of People v. Harris (1980), 91 Ill. App. 3d 1, 413 N.E.2d 1369. That case was not, as defendant claims, “identical to the case at bar.” In Harris, the defendant, charged with a misdemeanor, caused a subpoena to be issued to the sheriff demanding production of certain documents. The sheriff denied the subpoena and was held in contempt of court. A careful reading of the opinion reveals that the decision turned upon the fact that no motion to quash had ever been made and that the subpoena was still in effect. The court in Harris held that parties may not ignore or defy a valid subpoena. It did not hold that subpoenas once issued may never be quashed, or that the court is without authority to review the propriety of a subpoena.

We turn next to the evidentiary issue. Defendant’s objection to Phyllis Dolan’s testimony centers on the fact that she attempted to testify concerning her general habit as to the issuance of permits rather than testifying to the particular facts involved in this case. Although Mrs. Dolan testified that she usually informed applicants that a half-tie was 3¥2 to 4 feet long and that she was not able to issue a permit for long ties, she admitted during cross-examination that she had no detailed recollection of her conversation with the defendant. Later, in the presence of the jury, she misidentified a court-appointed interpreter as the defendant.

The defendant correctly points out that evidence of habit or general practice is not admissible as proof of behavior and conformity with that habit on a specific occasion. (Goetz v. County Mutual Insurance Co. (1975), 28 Ill. App. 3d 154, 328 N.E.2d 109; City of Salem v. Webster (1901), 192 Ill. 369, 61 N.E. 323.) To do so constitutes error. However, it is not the policy of the appellate court to reverse a jury verdict merely because error has been committed. (Taylor Coal Co. v. Dawes (1906), 220 Ill. 145, 77 N.E. 131.) Where there is other sufficient, competent evidence establishing defendant’s guilt beyond a reasonable doubt and it does not appear that the error complained of was the basis of the jury’s verdict, that error is harmless and reversal is not required. (People v. Butler (1978), 63 Ill. App. 3d 132, 379 N.E.2d 703.) Generally, a reviewing court will not reverse a jury verdict due to an error in the admission of evidence unless it appears that there was a denial of real justice. (People v. Sanchez (1973), 11 Ill. App. 3d 1079, 297 N.E.2d 230.) We find that the court’s failure to strike Mrs. Dolan’s testimony was such harmless error.

The record shows that most of the defense counsel’s objections to her testimony were sustained. Further, the defense counsel conducted a cross-examination which revealed to the jury that Mrs. Dolan had no definite recollection of her conversation with the defendant. Finally, she was completely unable to identify the defendant in court. It is unlikely that the jury placed any particular weight on her testimony, given this rather thorough impeachment.

In addition, there was sufficient other evidence upon which the jury could have based its verdict. The subject of Mrs. Dolan’s testimony was the permit issued to the defendant, and the meaning of the terms used therein. Several other witnesses testified as to the contents of that document and the meaning of its terms.

Moreover, the admission of Mrs. Dolan’s testimony did not result in any substantial prejudice to the defendant and therefore reversal is not appropriate. Trial errors do not generally require reversal if the defendant has had substantial justice. People v. Bean (1974), 17 Ill. App. 3d 377, 308 N.E.2d 334.

The defendant also argues that the State did not present sufficient evidence to justify a finding of guilt beyond a reasonable doubt. It is defendant’s contention that the evidence presented to the jury was insufficient to establish that the Burlington Northern had not abandoned the ties.

As a general rule a reviewing court will not reverse a conviction unless the evidence presented to the jury was so improbable or unreasonable as to raise a serious doubt of the defendant’s guilt. (People v. Guzzardo (1979), 69 Ill. App. 3d 252, 387 N.E.2d 896; People v. Bullock (1970), 123 Ill. App. 2d 30, 259 N.E.2d 641.) Where it can be said that the State presented evidence sufficient to establish guilt beyond a reasonable doubt, the verdict will not be disturbed. People v. Goodpaster (1966), 35 Ill. 2d 478, cert. denied (1967), 386 U.S. 967, 18 L. Ed. 2d 120, 87 S. Ct. 1051.

Further, a verdict of guilty is not subject to reversal simply because the jury chose to believe the evidence presented by the prosecutor. (People v. Pelegri (1968), 39 Ill. 2d 568, 237 N.E.2d 453; People v. Crocker (1978), 58 Ill. App. 3d 328, 373 N.E.2d 621.) When the evidence presented is contradictory, it is within the province of the jury to assess the credibility of the witnesses and weigh the evidence accordingly. People v. Greeson (1975), 28 Ill. App. 3d 94, 327 N.E.2d 605.

In this case the jury heard the defendant testify that he found the whole ties on the same stretch of track as the half-ties and that the whole ties were partially covered with gravel and underneath several cut ties. The jury also heard the testimony of Eugene Bratcher, a railroad employee, to the effect that occasionally during track repairs, the crews leave extra ties alongside the rail bed to be picked up later. Mr. Bratcher also noted that there is a report made daily to a track inspector as to the number and location of these excess ties.

The testimony of Mr. Bratcher is sufficient, if believed by the jury, to establish the Burlington Northern’s intention to continue in possession of the ties and to justify the jury’s finding that the ties had not been abandoned. The defendant’s account is entitled to no special deference or particular weight. (People v. Greeson (1975), 28 Ill. App. 3d 94, 327 N.E.2d 605.) It is for the jury to resolve conflicting allegations of fact. It seems to have done so in this case, and we are not inclined to disturb its finding.

Defendant further contends that his conviction must be overturned since the State failed to prove that he acted with the requisite intent to permanently deprive another of his property. The defendant claims, and testified in court, that he believed he was entitled to take the longer whole ties. For support in his contention that he lacked the requisite mental state the defendant relies on the case of People v. Baddeley (1969), 106 Ill. App. 2d 154, 245 N.E.2d 593, in which the court ruled that a defendant’s bona fide belief, even though mistakenly held, that he has a right or claim to another’s property negates the intent to deprive an owner permanently of his property. However, the Baddeley decision also recognized that it is the jury’s duty to judge whether the belief held was actually bona fide in nature. In this case there was sufficient evidence presented to the jury to support its apparent conclusion that Mr. West did not have a bona fide belief that he was entitled to the whole ties. The defendant himself testified that the contract he signed referred to “1/2 used ties, more or less.”

In the case of People v. Greeson (1975), 28 Ill. App. 3d 94, 327 N.E.2d 605, a defendant made a similar argument claiming that he believed that he had the authority to remove certain typewriters and that he therefore lacked a requisite intent. In upholding the jury’s verdict of guilty the court noted:

“Where an authorized control of the property of another is admitted, the defendant’s intent to permanently deprive the owner of the property may be inferred from the facts and the circumstances surrounding the alleged criminal act. (People v. Carr 16 Ill. App. 3d 76, 305 N.E.2d 554 (1st Dist. 1973); People v. Ida, 14 Ill. App. 3d 407, 302 N.E.2d 713 (1st Dist. 1973).) We believe that the question of whether defendant knew his control was unauthorized can similarly be established by inference from the surrounding facts. Both questions involve defendant’s state of mind, his knowledge and intent, and the only evidence possible, other than defendant’s own testimony, must be what reasonable men would infer from surrounding circumstances.” People v. Greeson (1975), 28 Ill. App. 3d 94, 96-97, 327 N.E.2d 605, 606.

The evidence presented to the jury in this case seems sufficient to support a judgment of guilty and is neither so improbable nor so unsatisfactory as to raise serious doubt of the defendant’s guilt.

For the reasons noted, the judgment of the Circuit Court of Kendall County is affirmed.

Affirmed.

NASH and REINHARD, JJ., concur.


author: JUSTICE LONDRIGAN

text:
    DORIS SIDWELL, Plaintiff-Appellee, v. ROY SIDWELL, Defendant-Appellant.
    Fourth District
    No. 17128
    Opinion filed November 25, 1981.

      Kennith W. Blan, Jr., of Blan Law Offices, of Danville, for appellant.
    Harlan Heller, of Harlan Heller, Ltd., of Mattoon, for appellee.
   JUSTICE LONDRIGAN

delivered the opinion of the court:

We are confronted with the fifth chapter in the Sidwell saga. We hope our decision will bring an end to the Fourth District’s version of Jarndyce v. Jarndyce.

To avoid an unduly long opinion, we will confine our discussion of the facts to Sidwell IV (Sidwell v. Sidwell (1978), 58 Ill. App. 3d 33, 373 N.E.2d 814) and the present case. An excellent summary of the early history of this litigation may be found in Mr. Justice Simkins’ opinion in Sidwell v. Sidwell (1975), 28 Ill. App. 3d 580, 328 N.E.2d 595.

In Sidwell IV, this court attempted to insure that Sidwell IV would be the final chapter in this bitter litigation. We concluded:

“[T]he trial court as and for alimony in gross and special equities must enter an order providing an equal division of the property and liabilities applicable thereto acquired during the marriage. If the parties can agree, well and good. If they cannot agree upon such division, each shall submit to the trial court a plan for division into equal shares. The court shall then order one or the other of the plans approved. The party whose plan is not ordered approved shall have first choice of either half provided for in the plan submitted and ordered approved. The trial court shall thereupon cause such deeds or other instruments executed as may be necessary to effectuate the division.” (58 Ill. App. 3d 33, 36, 373 N.E.2d 814, 817.)

We also ordered that the trial court enter an order granting attorney fees to Mrs. Sidwell upon remand without further hearing.

Mr. Sidwell petitioned for a rehearing. His petition was denied. He then petitioned to the supreme court for leave to appeal. The supreme court denied his petition. The mandate of this court was issued on October 24, 1978.

On May 1, 1979, the trial court entered an order which made a division of the property and awarded attorney fees to Mrs. Sidwell. Mr. Sidwell filed a motion to vacate the order on May 18, 1979. The motion was granted. The trial court entered a second order on March 31, 1980, confirming a plan submitted by Mrs. Sidwell. Mr. Sidwell filed a motion to vacate that order on April 18, 1980. A hearing was held on the motion on May 29, 1980. The trial court allowed the motion to vacate and directed both parties to submit plans of distribution before June 24, 1980.

After this point, the record becomes somewhat murky. Apparently, an order was entered on August 27,1980, confirming a plan submitted by Mrs. Sidwell. The docket sheet indicates that a “Judgment Order” was entered on September 2, 1980. Mr. Sidwell filed a motion to vacate the order on September 25, 1980. A hearing was held on October 21, 1980.

At the hearing, Mr. Sidwell argued that the plan submitted by Mrs. Sidwell and approved by the trial court was clearly not in compliance with the mandate of this court. If the motion to vacate was allowed, Mr. Sidwell contended, he would try to formulate a plan. Finally, Mr. Sidwell claimed that he had no notice of the entry of the order. The trial court rejected Mr. Sidwell’s arguments and denied his motion to vacate. The trial court stated that the order of August 27 contemplated that a further order would be entered. The trial court entered an order on October 21, 1980, which provided the following:

(1) Roy Sidwell will be charged with the value of all cash in bank, livestock, grain, machinery, equipment and miscellaneous assets appearing in defendant’s exhibit No. 3 (a financial statement of Sidwell dated March 19, 1964).

(2) Roy Sidwell will pay all liens, mortgages and encumbrances on the real estate other than is shown on the financial statement of March 19, 1964.

(3) Roy Sidwell will pay all obligations shown on the financial statement of March 19,1964.

(4) Roy Sidwell will receive 160 acres.

(5) Roy Sidwell will pay to himself a sum equal to the amount described in (1) above.

(6) Doris Sidwell will receive 133% acres of land free and clear of all liens and encumbrances plus $3,818.03 in cash.

(7) Roy Sidwell will pay Doris Sidwell one-half of the net income from the 133% acres for 1979 and all the net income from the 133% acres in 1980. Roy Sidwell will pay all real estate taxes.

Mr. Sidwell filed a post-trial motion on November 19, 1980. A hearing on the post-trial motion and on a motion by Mrs. Sidwell for attorney fees was held on January 27, 1981. The trial court entered an order on March 16, 1981, denying Mr. Sidwell’s post-trial motion and granting Mrs. Sidwell’s motion for attorney fees. Mr. Sidwell filed his notice of appeal on April 14,1981.

The idea behind the mandate in Sidwell IV was that allowing each side to submit a plan, with first choice going to the party whose plan was not adopted, would ensure that the division of the property was fair to both parties. For this plan to work, both sides had to be willing to cooperate with the trial court and had to make a good-faith effort to comply with the appellate court’s mandate. We note that defendant has made no attempt to comply with the mandate of this court issued in Sidwell IV. He has never submitted a plan of his own for the trial court’s consideration, nor has he ever chosen a portion of one of the plans submitted by Mrs. Sidwell and approved by the trial court. He has chosen instead to attempt to delay and hinder, for as long as possible, an equitable division of the parties’ property.

Mrs. Sidwell has submitted three separate plans to the trial court since the remand. Mr. Sidwell was able to persuade the trial court to vacate orders adopting the first two plans. His strategy failed when the trial court refused to vacate an order confirming a third plan submitted by Mrs. Sidwell. He now complains that the plan adopted is not in compliance with our mandate issued in Sidwell IV.

It is a time-honored maxim of equity that he who seeks equity must do equity. (Homey v. City of Springfield (1957), 12 Ill. 2d 427, 147 N.E.2d 58.) Mr. Sidwell’s wilful and contumacious behavior, aimed solely at hindering an equitable distribution of property, prevented the trial court from fully complying with the mandate of Sidwell IV. Therefore, we decline to grant him relief from a situation he himself has created.

Furthermore, the order of the trial court entered October 21,1980, is in reasonable compliance with the mandate issued in Sidwell IV. The order provides for a just and reasonable disposition of the parties’ property and we have no quarrel with the disposition ordered.

Mr. Sidwell also contends that the trial court erred in awarding attorney fees to Mrs. Sidwell’s attorney. We disagree. In Sidwell IV, we directed the trial court to enter an order awarding attorney fees without further hearing. On remand, Mrs. Sidwell petitioned the trial court to enter such an order. Mr. Sidwell filed an answer to the petition. On August 19, 1979, the trial court entered an order requiring Mr. Sidwell to pay Mrs. Sidwell’s attorney the sum of $6,567.50 plus interest from April 25, 1979. The money was not paid. On March 31, 1980, the trial court entered an order directing Mr. Sidwell to pay Mrs. Sidwell’s attorney $7,032.44 ($6,567.50 plus interest from April 25, 1979, to March 14, 1980). Mr. Sidwell moved to vacate this order and the trial court granted the motion. Mrs. Sidwell again moved for an order granting an award of attorney fees on November 6, 1980. A hearing was held on January 27, 1981. At the hearing, Mrs. Sidwell’s attorney testified regarding the fees and costs incurred in this case from March 30, 1976, to the date of the hearing. He also testified that he and members of his firm were required to make numerous court appearances to answer objections interposed by Mr. Sidwell to the motion for an award of attorney fees.

The trial court entered an order on March 16, 1981, directing Mr. Sidwell to pay Mrs. Sidwell’s legal fees and expenses in the sum of $7,241.69. The trial court also found:

“[T]he Plaintiff has been obliged to conduct numerous proceedings and has prepared pleadings and made appearances but that the delays incident to this matter have not been occasioned by good faith efforts on the part of the Defendant; * * * the Defendant has disregarded the Order of the Appellate Court for the Fourth District of Illinois * 6 6 that the Plaintiff is entitled to her reasonable attorneys’ fees and costs in enforcing the Order of the Appellate Court.”

When a party must go into court to vindicate his rights under a divorce decree, the party resorting to the judicial system is entitled to an award of attorney fees in a reasonable amount. (Tippet v. Tippet (1978), 65 Ill. App. 3d 1018, 383 N.E.2d 13; Neeland v. Neeland (1974), 17 Ill. App. 3d 803, 308 N.E.2d 651.) An award of attorney fees will be upheld against attack where the party attacking the award has deliberately impeded the progress of the proceedings in bad faith. Van Fleet v. Van Fleet (1977), 50 Ill. App. 3d 172, 365 N.E.2d 1143; Booth v. Booth (1971), 132 Ill. App. 2d 758, 270 N.E.2d 171.

In Van Fleet, the trial court found that plaintiff did not pursue his divorce litigation in good faith and awarded attorney fees to defendant. On appeal, the First District upheld the award. In Booth, an award of attorney fees to plaintiff was upheld where her former husband made numerous pro se motions and habitually appealed every final order entered.

The trial court found that Mr. Sidwell had not acted in good faith during the proceedings. We agree. It is clear from an examination of the record that Mr. Sidwell has acted with a total disregard for the mandate of this court and has made every effort to delay and impede a final resolution of this case. The trial court’s award of $7,241.69 in attorney fees to Mrs. Sidwell was proper.

Mrs. Sidwell filed a motion in this court for an award of attorney fees on appeal. The motion was denied. Our denial of the motion was not intended as a ruling on the merits of her request. The appropriate procedure for Mrs. Sidwell to follow in her attempt to recover attorney fees for this appeal is to make an application in the trial court. The case law is clear that a prevailing party may petition the trial court for a retroactive award of fees regardless of whether the party prosecuted or defended the appeal. Sherman v. Sherman (1979), 74 Ill. App. 3d 451, 393 N.E.2d 67; McCarrel v. McCarrel (1977), 48 Ill. App. 3d 666, 363 N.E.2d 198.

The judgment of the circuit court of Cumberland County is affirmed.

Affirmed.

WEBBER and MILLS, JJ., concur.


author: JUSTICE LONDRIGAN Mr. JUSTICE TRAPP,

text:
    FRANCISCAN SISTERS HEALTH CARE CORPORATION, d/b/a St. Elizabeth Hospital, Plaintiff-Appellee, v. JOHN R. DEAN, Indiv. and as Ex’r of the Estate of Elizabeth R. Messmer, Deceased, Defendant-Appellant.—(KATE FISK et al., Defendants.)
    Fourth District
    No. 16890
    Opinion filed December 10, 1981.
    TRAPP, J., dissenting.

      F. Daniel Welsch, of Young, Welsch, Young & Hall, of Danville, for appellant.
    Sebat, Swanson, Banks, Lessen & Carman, of Danville (Hardin W. Hawes and Ralph J. Swanson, of counsel), for appellee.
   JUSTICE LONDRIGAN

delivered the opinion of the court:

Defendant Dean, a lawyer, drafted what turned out to be Elizabeth Messmer’s final will February 7, 1978; after making two small specific bequests Messmer gave the residue of her estate to Dean and St. Elizabeth Hospital, the plaintiff, in equal shares. Messmer died in St. Elizabeth Hospital April 10,1979, at the age of 97, and the will was later admitted to probate. According to the estate’s Illinois inheritance tax return, Messmer died owning property and money worth almost $300,000; schedule E of the return shows that the hospital’s and Dean’s shares were each worth approximately $130,000. The plaintiff filed this suit to contest the will, alleging that Dean as drafter presumptively had exercised undue influence in obtaining his substantial legacy. The plaintiff sued to invalidate the entire will and not just Dean’s legacy (cf. Williams v. Crickman (1980), 81 Ill. 2d 105, 405 N.E.2d 799 (permitting partial invalidation of wills)). Finding that Dean had not overcome the presumption of undue influence, the trial court invalidated the will. Dean appeals this decision, arguing that the trial court misunderstood the effect of the presumption and that his evidence rebutted it and supports the will.

At the outset of the trial the parties agreed that the pleadings admitted the existence of an attorney-client relationship between Dean and Messmer and that the will in question had been typed in Dean’s office. The trial court entered orders of default as to the recipients of the two specific bequests, Chapman, who died before the start of the trial, and Castle, and also as to Messmer’s heirs. Before hearing testimony the judge declared that the presumption of undue influence was in effect.

Because Dean’s appeal focuses on the strength of the evidence adduced at trial, a rather detailed summary of the testimony is necessary; the parties provided a large amount of information regarding Messmer’s health during the last several years of her long life and the relationship between Messmer and the Dean family. The plaintiff’s first witness was Robert D. Acton, an attorney in Danville who knows Dean. Acton had done legal work for Messmer, including the preparation of two wills, from some time in the 1950s until some time in the 1970s, when he directed her to seek another lawyer because his continued representation of her posed a conflict of interest with his representation of another client. At some point between 1974 and 1979 Acton received a telephone call from Mrs. Messmer; in response he asked Dean to return to him a key to Messmer’s safe deposit box; Dean did not do this. Acton saw Messmer April 3 or 4,1979, at the Americana Nursing Home in Danville; according to Acton she told him, “ ‘I want you to arrange to have the Second National Bank look after my affairs. I want out from under the influence of Mr. Dean and want nothing more to do with him.’ ” Acton then prepared a power of attorney, which Messmer signed, and delivered it to the Second National Bank of Danville. In the nursing home Messmer was hard of hearing but mentally alert; she was strong-willed. Acton said that Messmer had generally looked after her own business affairs. He also said, though, that Messmer had often received advice on business matters from Norman Dale, a local real estate broker, and that Messmer had generally followed Dale’s advice. Acton said that “by someone Messmer trusted she was easily influenced.” In the two wills that Acton drafted for Messmer he had disposed of the property according to her instructions.

Kathy Omahen, who worked at the nursing home, was in the same room when Acton visited Messmer in April 1979; Omahen had telephoned Acton at Messmer’s behest. Omahen confirmed what Acton testified to regarding his visits.

Viola Kersey, a private nurse, was in the nursing home with her patient when Acton stopped by to talk to Messmer. Kersey testified that Messmer told Acton that she wanted him to assume the management of her financial affairs; Acton asked, “ ‘Are you sure? Mr. Dean has been your business advisor for awhile.’ ” Messmer said that she was sure, and at that point Kersey left the room. The day when Kersey heard this conversation Messmer appeared disturbed about a recent matter: Mrs. Dean had visited Messmer several days earlier and had been rude to her; they had argued whether Messmer should live at home and pay persons to stay with her. Kersey did not know whether Messmer was still upset about that the day she talked to Acton.

Don Fuller, vice-president, trust officer, and counsel for the Second National Bank of Danville, testified; he identified several exhibits, including a power of attorney signed April 5, 1979, authorizing him to transact certain business matters for Messmer.

Bessie K. Castle had lived across the street from Messmer since 1940 and was to receive a specific bequest under the will involved here. Castle testified that her friendship with Messmer became closer after Messmer’s 90th birthday in 1971 or 1972, and that during the last two years Messmer was alive Castle visited her daily. According to Castle, the Dean family began to visit Messmer and dine out with her after Dean wrote a will for her, and these visits continued through the last year of Messmer’s life; Messmer considered Dean a very competent attorney. Mrs. Dean usually was the one to telephone Messmer to invite her out. Castle testified that Messmer had regarded these calls as a nuisance and had generally declined the invitations; even when Messmer accepted them she would make a face as she talked on the telephone. Castle also testified that Messmer’s mental and physical condition had remained about the same from 1972 until shortly before her death and described her as intelligent and opinionated. In the early 1970s Messmer did not have any close friends in Danville; one friend lived in Waukegan and another in Rockford. Castle also referred to trips that Messmer and the Deans had taken together during the 1950s. Messmer and the Deans’ daughter went to Puerto Rico, and Messmer went to Florida with the entire family. After the 1950s Messmer traveled with others and was “off the Deans.” On Messmer’s 97th birthday the Deans took a cake to her house. Messmer never spoke to Castle about her wills. The several times that Messmer needed to go to a hospital she went to St. Elizabeth.

The defendant’s first witness was Edward Litak, who is an attorney in Danville and has known Dean since about 1950; the two men are acquaintances rather than friends. Litak testified that he spoke to Messmer February 7,1978, regarding her will. That day Dean went to Litak’s office and asked him to witness a will that he, Dean, had drafted and that made him a beneficiary; Litak was immediately aware of the potential ethical problem and therefore was determined to interrogate Messmer longer and more thoroughly than he normally interrogates testators and testatrices. Litak called in his secretary, Julie Hembrey, and explained to her what he intended to do and advised her to listen carefully. Dean took Messmer and the will to Litak’s office, introduced Messmer, and then left. For about 15 to 20 minutes Litak questioned Messmer to determine whether the will was voluntary and whether she was aware of the large legacy to Dean. Litak did not, however, discuss with Messmer the size of the legacy beyond referring to it as “substantial.” Messmer understood that it was a large amount and explained that she was giving it to Dean because he was her attorney; she also said that she did not have any relatives to leave anything to. Litak repeated his questions but in different forms; he testified that she had the opportunity to reveal any impropriety in the preparation of the will but did not mention anything. Litak’s questions concerned whether the will was voluntary, whether Messmer realized that Dean stood to receive a large amount under it, and whether she had been pressured into this. Litak did not read each provision of the will to Messmer; he explained at trial that when he witnesses a will he prefers not to discuss the dispositions because frequently persons do not like to reveal their financial matters to strangers. Thus he did not read the will to Messmer paragraph by paragraph and did not read it to himself; he did not know that Castle and Chapman were to receive bequests. During the interview Litak handed the will to Messmer for her to read. Litak did not advise Messmer about the tax consequences of the will or the role of an executor — the will named Dean executor. Litak also did not tell her about the ethical problems that arise when a lawyer drafts a will that makes him a beneficiary. Litak did, however, ask Messmer whether she knew that Dean was a beneficiary of the will, and he may have mentioned the hospital too. Although Messmer did not refer to the dispositions of her earlier wills, Litak was left with the impression from his conversations that day with either Messmer or Dean that this was the first of her wills to give anything to Dean.

Litak testified to his belief that “without question [Messmer] was acting freely and voluntarily and intelligently.” In his opinion Messmer’s mind was strong and she was intelligent and determined; when Litak met her he judged her to be in her early or middle sixties. Litak did not notice whether Messmer was wearing a hearing aid and at trial did not recall that she had had any difficulty hearing. Litak was not paid for interviewing Messmer, although he did receive the customary $25 fee for testifying when the will was admitted to probate. At the conclusion of his interview he, Messmer, and Hembrey each signed the will in the presence of each other. After this Litak spoke only briefly with Dean, handing him the document and saying something to the effect that this was the will that had been executed.

Julie Hembrey also testified for the defendant. Hembrey did not hear Dean’s initial conversation with Litak. Hembrey had never seen Messmer before nor did she see her later. According to Hembrey, Litak asked Messmer whether the will was hers, whether she realized that she was leaving something to Dean, and whether she was certain that she wanted to do that; Messmer replied affirmatively to all three questions. Litak read aloud the provision in the will concerning Dean. Litak also asked Messmer whether she had any close relatives or friends, other than Dean, that she wanted to benefit, and she said that she did not. Litak asked Messmer whether she and Dean were friends, and she said that they had been friends for about 20 years and that Dean was her attorney. Litak repeated these questions several times. At trial Hembrey did not recall any reference during the interview to St. Elizabeth Hospital. In Hembrey’s opinion Messmer understood the contents of the will and realized what she was doing; Messmer was very alert, appeared to be younger than 90 years old, and did not have any difficulty walking or hearing. Like Litak, Hembrey received no compensation in connection with this except the witness fee given for her testimony in probate court. At trial Hembrey thought that Litak had referred during the interview to the specific bequests and not just to the provision concerning Dean, yet she did not remember hearing Castle, Chapman, or St. Elizabeth Hospital mentioned.

Dean’s daughter, Gwendolyn Fish, and grandaughter, Diana Whitley, also testified in his behalf. Fish and Whitley knew Messmer for about 25 years; Messmer and the Dean family were friends and frequently traveled together; they took their last joint vacation sometime during the 1950s. Throughout the past three decades, and including the last five years of Messmer’s life, Messmer and the Deans dined out together, usually about once a month. Their socializing did not increase during the last years of Messmer’s life. Messmer gave the Deans gifts; Messmer bought some of these items with the intent to make a gift and bought other items for herself and then decided to give them away when she decided that they were unsuitable for herself. Messmer gave Dean and his granddaughter each a ring. Fish and Whitley visited Messmer in the nursing home about every other week; Dean and his wife visited more frequently. Messmer told Fish and Whitley that she had no relatives.

Dean’s and his wife’s testimony was presented in an offer of proof; the plaintiff’s objection to this was sustained under the Dead Man’s Act (Ill. Rev. Stat. 1979, ch. 51, par. 2). Dean does not attack this ruling here.

The plaintiff presented two rebuttal witnesses, Janet O’Rourke and Neils Neilson. O’Rourke lived next door to Messmer for 10 years; O’Rourke did not specify which ten. According to O’Rourke, Messmer was “small and frail” and hard of hearing and could not see well; these problems worsened during the 10 years the two women were neighbors. Because O’Rourke was frequently in her kitchen, where she could see Messiiier’s yard and driveway, she often saw who was visiting Messmer. Castle went to Messmer’s home every day, and Chapman, who mowed the lawn, stopped by almost as frequently. A friend from out of town visited Messmer about once a year. O’Rourke saw Dean there “very occasionally”; he visited more frequently during the last year of Messmer’s life. O’Rourke did not remember ever seeing Fish or Whitley next door.

Neils Neilson lived across the street from Messmer for an unspecified length of time. After the death of Messmer’s former advisor, Norman Dale, Neilson assumed that role. Several times Neilson’s own business matters led him to have business dealings with her. At trial Neilson described Messmer as “an amazing woman up until four or five years ago, I would say”; although she was small and frail, she was strong until that time. Her loss of hearing was “quite advanced,” and despite her hearing aid one had to speak to her loudly. Like O’Rourke, Neilson was able to see who visited Messmer; Castle and Chapman were daily visitors; Dean _ visited, “particularly a year or so before [her] death.”

The trial court admitted into evidence previous wills signed by Messmer; although Dean objected at trial to their admission, he does not dispute that here. Previous wills containing testamentary schemes that conflict with that of the contested will are admissible evidence of growing influence; their use is limited to this purpose. (Blackhurst v. James (1922), 304 Ill. 586, 136 N.E. 754; Kelley v. First State Bank (1980), 81 Ill. App. 3d 402, 401 N.E.2d 247.) In her immediately preceding will dated September 22, 1975, Messmer gave Dean her safe or vault and all its contents. On March 4, 1976, she executed a codicil to that will, naming Dean executor in place of the Second National Bank of Danville. Messmer’s wills of March 10,1972, and November 25, 1974, do not mention Dean.

On October 16, 1980, the trial judge entered his written order. After summarizing the evidence and discussing the presumption of undue influence he concluded that Dean had not overcome the presumption and declared the will invalid. The judge also said:

“In making this finding, the Court, as fact finder, realizes the evidence would not have been sufficient to upset the will if the presumption was not in existence. The Court, however, recognizes and agrees with the reasoning for the presumption.”

Dean does not dispute that the facts here raise the presumption of undue influence. He drafted the will in question and stands to receive a substantial benefit from it; this much is sufficient. (In re Saladino (1978), 71 Ill. 2d 263, 375 N.E.2d 102; Breault v. Feigenholtz (1973), 54 Ill. 2d 173, 296 N.E.2d 3.) Dean argues that the evidence presented by him rebutted the presumption and that the court’s decision is contrary to the manifest weight of the evidence. In his written order the trial judge rejected Dean’s contention that the presumption of undue influence is rebutted by producing some evidence to the contrary; the court then quoted the following passage from Herbolsheimer v. Herbolsheimer (1977), 46 Ill. App. 3d 563, 566, 361 N.E.2d 134, 136:

“Once the presumption of undue influence has been raised, the burden shifts to the proponents of the will to prove that the influence exerted over the testator was not so great that it overcame the will of the testator.”

The trial judge construed this to mean that “the weight of the evidence or preponderance of evidence test would be the obligation of the proponents”; the court also noted that early Illinois cases required clear and convincing evidence to overcome this presumption. The court also said, however, that “the evidence would not have been sufficient to upset the will if the presumption was not in existence.” We hold that the trial court misconstrued the role of the presumption and incorrectly shifted onto Dean the burden of persuasion.

Part of this confusion stems from Herbolsheimer s statement, quoted above, that when undue influence is presumed “the burden shifts to the proponents of the will to prove” that the testator’s volition was not overborne. In reaching this conclusion Herholsheimer cites generally to Tidholm v. Tidholm (1945), 391 Ill. 19, 62 N.E.2d 473; Tidholm said, however, that the presumption of undue influence:

“* * * casts upon the proponent, if he is to sustain the will, the necessity of showing that the execution of the will was the result of free deliberation on the part of the testator and of the deliberate exercise of his judgment, and not an imposition or wrong practiced by the trusted beneficiary. [Citations.] This, however, does not change the general rule, which is, that upon the whole case, the burden of proof is upon the contestant to establish undue influence by the whole evidence. [Citation.]” (391 Ill. 19, 25-26, 62 N.E.2d 473, 476-77.)

In re Saladino (1978), 71 Ill. 2d 263, 272, 375 N.E.2d 102, 105, an attorney disciplinary proceeding, quoted approvingly a similar statement made in Dial v. Welker (1927), 328 Ill. 56, 63, 159 N.E. 286, 289, that evidence raising the presumption of undue influence “ ‘casts upon the proponents, if the will is to be sustained, the necessity of producing evidence to show that its execution was the result of free deliberation on the part of the testator and of the deliberate exercise of his judgment.’ ” Thus, in rebutting the presumption of undue influence the proponent’s burden is one of production rather than persuasion.

In Diederich v. Walters (1976), 65 Ill. 2d 95, 357 N.E.2d 1128, the supreme court reaffirmed its earlier decision in McElroy v. Force (1967), 38 Ill. 2d 528, 232 N.E.2d 708, that Illinois follows the Thayer “bursting bubble” theory of presumptions. McElroy involved the presumption that the owner of a car is driving it when he is in it; Diederich dealt with the presumption that children seven to 14 years of age are incapable of being contributorily negligent. On appeal to the supreme court the plaintiff in Diederich argued that the trial court should have instructed the jury on the presumption even though the defendant had presented evidence rebutting it. Diederich held that rebutting evidence causes a presumption to evaporate. Once a presumption takes effect, the opposing party has the burden of producing evidence to rebut it:

“However, once evidence opposing the presumption comes into the case, the presumption ceases to operate, and the issue is determined on the basis of the evidence adduced at trial as if no presumption had ever existed. [Citation.] The burden of proof thus does not shift but remains with the party who initially had the benefit of the presumption.” (65 Ill. 2d 95, 100-01, 357 N.E.2d 1128, 1130-31.)

That last sentence must be read narrowly: for “burden of proof” read “burden of persuasion,” and the rule is true only when the plaintiff is claiming the benefit of a presumption: a defendant whose presumption has been rebutted does not then have the burden of disproving the plaintiff’s allegations. Diederich then cited Wigmore for the proposition that presumptions will dictate a particular result when unrebutted but dissolve when rebutted and Jones for the proposition that the jury ought not to be instructed on a presumption that has been rebutted. Thayer’s theory regarding the effect of presumptions, the “prevailing” one, “has generally been followed in Illinois.” (65 Ill. 2d 95, 102, 357 N.E.2d 1128, 1131; see also McElroy.) Diederich distinguished the opposing position, the Pennsylvania or Morgan theory, that presumptions continue in force even after the production of rebutting evidence and form the basis for instructions to the jury.

Thus, Illinois observes an essential difference between presumptions and inferences; some inferences are occasionally incorrectly referred to as “permissive presumptions.” (E. Cleary & M. Graham, Handbook of Illinois Evidence §302.2 (3d ed. 1979).) The fact-finder may in its discretion make the inference but in the absence of evidence to the contrary would have to take the presumption; thus, the party urging an inference is not entitled to a directed verdict, but the party urging a presumption is, when no rebuttal evidence is introduced; stated another way, a presumption shifts the burden of production but an inference does not. Furthermore, the rebuttal of a group of facts that gives rise to a presumption and supports an inference will cause the presumption to disappear but will not preclude the fact-finder from drawing the inference. E. Cleary & M. Graham, Handbook of Illinois Evidence §§302.1, 302.2 (3d ed. 1979); McCormick, Evidence §345, at 821 (2d ed. 1972).

Diederich and McElroy are applicable to all presumptions and therefore govern here; in those opinions the court spoke broadly and did not limit the intended applicability of its rules to the two presumptions at issue.

Diederich said only that “evidence opposing the presumption” will rebut it, without elaborating on what that quantum of evidence must be. (Shaver v. Berrill (1976), 45 Ill. App. 3d 906, 908, 358 N.E.2d 290, 292.) Consistent with the Thayer approach is the requirement that the opponent of the presumption produce evidence that is “sufficient to support a finding of the non-existence of the presumed fact.” (Graham, Presumptions in Civil Cases in Illinois: Do They Exist? 1977 S. Ill. U. L.J. 1, 24.) This is also consistent with the language used in other cases involving fiduciaries (e.g., Zeilenga v. Stelle Industries, Inc. (1977), 52 Ill. App. 3d 753, 367 N.E.2d 1347) that presumptions of undue influence or fraud or unfairness must be rebutted with “clear and convincing” proof. When fact P is presumed, evidence that will support not-P constitutes clear and convincing proof in rebuttal. A defendant faced with a presumption has the burden of producing evidence to rebut it, not the burden of persuading the fact finder that facts Q, R, and S exist. The requirement of clear and convincing evidence cannot mean anything more than this. Measured by this standard, Dean’s evidence was sufficient to rebut the presumption of undue influence. The key question here is Messmer’s state of mind February 7, 1978, the day that she signed the will (Sterling v. Duhin (1955), 6 Ill. 2d 64, 72, 126 N.E.2d 718, 723); if she was not under Dean’s influence at that time, then her earlier or later feelings toward Dean are irrelevant. Litak and Hembrey provided the only descriptions of Messmer on that day, and they both concluded that Messmer was acting of her own volition in making Dean a substantial beneficiary of her estate. This evidence was sufficient to rebut the presumption of undue influence. Although Litak did not advise Messmer in the sense of drafting another will for her (see, e.g., In re Estate of Stuhlfauth (1980), 88 Ill. App. 3d 974, 410 N.E.2d 1063), or in the sense of recommending an alternative disposition in her will or discommending the devise to Dean, he did question her thoroughly. Litak recognized the ethical problem involved here and undertook to determine whether the will represented Messmer’s intent and not Dean’s. We also note that Messmer was not survived by any close relatives and had few friends. She had known the Deans for years and had traveled with them, given them gifts, and dined with them. All the witnesses agreed that Messmer was determined and knew her own mind; she was alert and in good health. On this basis, then, we conclude that the evidence is sufficient to rebut the presumption of undue influence.

The inference of undue influence still remains, however, and the force of the inference will vary according to the evidence presented at trial. The statement in Wunderlich v. Buerger (1919), 287 Ill. 440, 445, 122 N.E. 827, 829, that “[t]he strength of the presumption [of undue influence] and the amount of proof required to overcome it must depend upon the circumstances of each case” is valid under Diederich and Thayer’s theory only as a rule of inferences and not of presumptions: a presumption operates until it is rebutted, and when rebutted, it evaporates and has no further effect on the action. What remains is a factual question, and we remand the cause to the trial judge as trier of fact to assess the strength of the evidence.

Dean also argues that the trial court erred in permitting the plaintiff to open and close and in admitting Castle’s testimony. Dean argues that because the pleadings admitted the facts necessary to raise the presumption, he should have been allowed to rebut it at the outset of the trial. We find the contrary to be true. Will contests are the products of statute (Mitchell v. Van Scoyk (1953), 1 Ill. 2d 160, 167, 115 N.E.2d 226, 230), and the statute provides:

“The contestant shall in the first instance proceed with proof to establish the invalidity of the will. At the close of the contestant’s case, the proponent may present evidence to sustain the will.” Ill. Rev. Stat. 1979, ch. IIOJ2, par. 8 — 1(c).

Dean mildly attacks the admission of Castle’s testimony. The will in question here gives Castle $1,000 in cash; the immediately preceding will, dated September 22, 1975, gave her one-half of Messmer’s household furnishings, which were worth slightly more than $1,100, according to an affidavit filed as part of her estate’s inheritance tax return. Castle’s testimony was therefore adverse to her pecuniary interest and admissible. In re Estate of Shanahan (1978), 59 Ill. App. 3d 269, 272, 375 N.E.2d 508, 511-12.

Reversed and remanded.

GREEN, P. J., concurs.

Mr. JUSTICE TRAPP,

dissenting:

We deal with the fact that an attorney was a major beneficiary under a will which he drafted for his client. I must dissent from the majority opinion in its application of the Thayer hypothesis of the “bursting bubble” in the presumption of undue influence arising under the fiduciary relationship which exists as a matter of law.

It is the conclusion of the opinion that since Dean produced “some evidence” which might be considered to suggest a voluntary choice of the testator, and the plaintiff produced no specific evidence of undue influence in addition to the admitted presumption, the trial court erred in finding the issues for plaintiff. The majority have not sufficiently explored the depths of the Thayer hypothesis.

The annotation in Annot., 5 A.L.R. 3d 19, 39 (1966), quotes the Thayer expansion of the hypothesis as stated in J. Thayer, Evidence App.' B, at 575-76 (1898):

“(1) A presumption operates to relieve the party in whose favor it works from going forward in argument or evidence. (2) It serves therefore the purposes of a prima facie case, and in that sense it is, temporarily, the substitute or equivalent for evidence. (3) It serves this purpose until the adversary has gone forward with his evidence. How much evidence shall be required from the adversary to meet the presumption, or, as it is variously expressed, to overcome it or destroy it, is determined by no fixed rule. It may be merely enough to make it reasonable to require the other side to answer; it may be enough to make out a full prima facie case; and it may be a great weight of evidence, excluding all reasonable doubt. (4) A mere presumption involves no rule as to the weight of evidence necessary to meet it. When a presumption is called a strong one, like the presumption of legitimacy, it means that it is accompanied by another rule relating to the weight of evidence to be brought in by him against whom it operates.” (Emphasis added.)

As so explicated, the “bursting bubble” of Thayer does not provide that “some evidence” in behalf of the proponent is necessarily sufficient to make the presumption valueless.

The position taken here was succinctly stated by Mr. Justice Goldenhersh in Diederich v. Walters (1976), 65 Ill. 2d 95, 105, 357 N.E.2d 1128. That opinion concluded that a particular presumption ceased “to operate in the face of contrary evidence In dissent, it was stated:

“Assuming arguendo the correctness of the majority’s conclusion the flaw in its treatment of the question is that it has attempted to apply the same rule to all presumptions whereas it is clear from the decisions of this court that all presumptions are not alike.” 65 Ill. 2d 95, 105-06, 357 N.E.2d 1128, 1133.

One finds that 1 Card, Illinois Evidence Manual ch. II (1979) lists some 40 presumptions, in addition to statutory presumptions, which may be considered under the Thayer hypothesis. McCormick, Evidence §343, at 806-07 (2d ed. 1972), states that it is inappropriate “to attempt to list the hundreds of recognized presumptions, ° °

McCormick states the nature, quality, and purpose for the creation of presumptions:

“A presumption shifts the burden of producing evidence, and as we shall see, under the preferable view operates to assign the burden of persuasion as well. Therefore naturally, the reasons for creating particular presumptions are similar to the considerations, which have already been discussed, that bear upon initial or tentative assignment of those burdens. Thus, just as the burdens of proof are sometimes allocated for reasons of fairness, some presumptions are created to correct an imbalance resulting from one party’s superior access to the proof. * 0 e. Similarly, notions, usually implicit rather than expressed, of social and economic policy incline the courts to favor one contention by giving it the benefit of a presumption, and correspondingly to handicap the disfavored adversary.”

In discussing the “bursting bubble” theory of the Thayer hypothesis, it is stated in McCormick:

“As has been discussed, presumptions are frequently created in instances in which the basic facts raise a natural inference of the presumed fact. This natural inference may be sufficient to take the case to the jury, ° * * despite the resultant destruction of the presumption. ° McCormick, Evidence §345, at 821 (2d ed. 1972).
The text continues:
“Presumptions, as we have seen, have been created for policy reasons that are similar to and just as strong as those that govern the allocation of the burdens of proof prior to the introduction of evidence. These policy considerations generally persist despite the existence of proof rebutting the presumed fact. They may be completely frustrated by the Thayer rule when the basic facts of the presumption do not give rise to an inference that is naturally sufficient to take the case to the jury.” McCormick, Evidence, §345 at 822 (2d ed. 1972).

The majority opinion cites controlling authority upon the established policy of the courts where a fiduciary relationship exists and a presumption of undue influence is created, i.e., the fiduciary is required to show that the execution of the will:

“[W]as the result of free deliberation on the part of the testator and of the deliberate exercise of his judgment, and not an imposition or wrong practiced by the trusted beneficiary.” Tidholm v. Tidholm (1945), 391 Ill. 19, 25-26, 62 N.E.2d 473, 476.

Happily, relatively few will contests include an issue where the testator’s attorney drafts a will wherein he is a beneficiary. However, instances are found in attorney disciplinary proceedings. It may be argued that in a narrow sense, attorney disciplinary proceedings include factors not necessarily concerned in the decision here, i.e., “an obligation to avoid even the appearance of impropriety.”

In In re Saladino (1978), 71 Ill. 2d 263, 272, 375 N.E.2d 102, 105, the supreme court agreed with the finding “that the evidence is not clear and convincing that respondent was actually carrying out complainant’s wishes.” That language is cited with approval in In re Barrick (1981), 87 Ill. 2d 233. In Barrick, the attorney drafted a will wherein the testator left to him a legacy from a substantial estate. The legacy was computed as the equivalent of his retainer fee for a period of five years. In a disciplinary proceeding, the supreme court found that although undue influence might have been presumed “the evidence established that there was none.” (Emphasis supplied.) (87 Ill. 2d 233, 241.) Among the items of evidence noted was that the testimony showed that the attorney had emphasized his conflict of interest to the testator and pressed the testator to obtain other counsel to the point that the testator was offended and adamant. There was substantial evidence that the testator had received independent advice (Saladino; In re Anderson (1972), 52 Ill. 2d 202, 287 N.E.2d 682.) Barrick states that while the act of the attorney in drafting such a will may be proper in special circumstances “he should be prepared to prove later what really happened.” 87 Ill. 2d 233, 239.

Upon the conclusion that the Thayer hypothesis does not undertake to specify what quantum of evidence is required to rebut the presumption of undue influence, one finds that the cases cited as to both will contests and disciplinary proceedings establish a standard of evidence to rebut the presumption of undue influence which is much greater than the “some evidence” which is deemed sufficient in the conclusions of the majority. The standard of clear and convincing evidence found in the disciplinary proceedings is consistent with, and the equivalent of, the standard of Tidholm cited in the majority opinion as the “necessity of showing that the execution of the will was the result of free deliberation 0 * “ and of the deliberate exercise of his judgment ” * e.” (Tidholm v. Tidholm (1945), 391 Ill. 19, 25-26, 62 N.E.2d 473, 476.) One may fairly conclude that notwithstanding the Thayer hypothesis, the supreme court has established that in cases of this character the proponent has the burden of persuasion, and that the rationale of the majority opinion is clearly inconsistent with the standard of proof required under these facts.

The evidence presented in support of this will clearly fails to rebut the presumption of undue influence arising from the attorney-client relation. An absence of close relatives is hardly proof that the bequest to Dean was a product of the testator’s free and voluntary determination. Again, evidence that Dean and testator went to dinner once a month, or had in years past joined in vacation trips, is hardly persuasive evidence upon that significant issue. Such facts may equally be interpreted as a program to enlarge Dean’s influence.

Testator’s interview with Mr. Litak prior to the execution of the will cannot fairly be called independent advice. Conceding that Litak made a conscientious effort to cope with an apparently unexpected, unclear, and embarrassing circumstance, one finds that testator was simply introduced by Dean and delivered to Litak to execute the will. Although Dean did not preside at the execution in a literal sense, he not only drafted the will, but procured its execution before strangers to the testator. It does not appear that Litak knew the contents of the will, or that he was in any way aware of the circumstances under which Dean became a major beneficiary. There is no basis to necessarily conclude that the testator would immediately disclose doubts, or fears to the strangers introduced to her some 20 minutes before the signing of the will.

The majority opinion emphasizes the language of the trial court concerning reliance upon the presumption to reach his decision. The statement is not remarkably significant for the reason that the plaintiff had no access to information concerning the substance and background of the transaction between the testator and Dean. The circumstances of the making of the will in this case are precisely the reason for which the presumption was created as a matter of policy. The quoted sentence of the trial court may fairly be interpreted to mean that the presumption of undue influence was not rebutted, and I would affirm.


author: JUSTICE WEBBER

text:
      In re D. L. B., a Minor.—(THE PEOPLE OF THE STATE OF ILLINOIS, Petitioner-Appellee, v. D. L. B., Respondent-Appellant.)
    Fourth District
    No. 17200
    Opinion filed December 10, 1981.
    Rehearing denied January 8, 1982.
    Daniel D. Yuhas and James G. Woodward, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Anthony B. Cameron, State’s Attorney, of Quincy (Robert J. Biderman and David E. Mannchen, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE WEBBER

delivered the opinion of the court:

The minor involved in this case was twice adjudicated delinquent and placed on probation. On April 7, 1981, a petition for supplemental relief was filed, alleging violations of the terms of probation. After a hearing, the circuit court of Adams County found the allegations proved, revoked probation and sentenced the minor to the Department of Corrections. The appeal lies from that order.

We find both the State and the minor guilty of gross breaches of the rules of procedure, but notwithstanding, the minor has waived these imperfections and we affirm.

The early history of this case is not of concern here. It is firmly established that on the date of the filing of the supplemental petition the minor was a delinquent on probation. What is of concern is the supplemental petition. It is attenuated almost beyond belief. Apart from the formal recitations of the status of the minor and the prayer for relief, the critical portion states as follows:

“That on February 28,1981, the minor committed the offenses of curfew violation and malicious mischief; that on April 6, 1981, the minor committed the offenses of curfew violation, theft, and burglary.”

No objection was made to this travesty of a charging instrument, and the trial court proceeded thereon to take evidence at a dispositional hearing. Following that hearing, the order appealed from was entered on May 19, 1981, and on the same date notice of appeal was filed.

On June 23,1981, counsel for the minor filed a motion for new trial or in the alternative a motion for modification of disposition. In this instrument the question of the sufficiency of the supplemental petition was raised for the first time. The trial court denied the motion for lack of jurisdiction.

The trial court found the allegations concerning February 28, 1981, not proved and dismissed them; it found the allegations concerning April 6, 1981, proved by a preponderance of the evidence. We need not dwell on the evidence, since no issue is raised on appeal about its sufficiency. We have examined the testimony and find it sufficient to sustain the April 6, 1981, charges, if they had been properly alleged. In summary, it was established that a Quincy police officer observed a car backed up to a building at about 1:15 a.m. He also observed a broken window in the building and a person walking from the car to the building. That person was apprehended and identified as the minor. Four cases of beer were found in the car along with two other persons in the car and a fourth person in the building. Another police officer testified that he had interviewed the minor who stated, in substance, that he, along with the other persons found at the scene, went in the automobile to the area and that one of the others passed the beer out of the building to him; he then placed the beer in the car. The defense presented no evidence.

As we have already indicated, two closely intertwined problems are presented: (1) the insufficiency of the supplemental petition, and (2) the lack of proper and timely objection to it. We believe that the petition was woefully deficient, and if proper and timely objection had been made, we would have no hesitancy in reversing. However, such objection was not made, and even though we are reluctant to find waiver in a juvenile case, we do so here.

It may first be observed that we view with dismay the steadily increasing informality with which juvenile matters are being handled. Undoubtedly the Juvenile Court Act was intended to disentangle minors from much of the legalism attendant upon adult criminal prosecution, but we find nothing in this humanitarian approach which should strip a minor of the most elementary right of any offender, that of knowing precisely what he is charged with. The Juvenile Court Act itself provides that “[t]he procedural rights assured to the minor shall be the rights of adults unless specifically precluded by laws which enhance the protection of such minors.” Ill. Rev. Stat. 1979, ch. 37, par. 701—2(3)(a).

Two propositions are well established in the law. First, that an instrument seeking revocation of probation need not be as specific as an indictment or information. (People v. Tempel (1971), 131 Ill. App. 2d 955, 268 N.E.2d 875; People v. Johnson (1973), 13 Ill. App. 3d 1020, 304 N.E.2d 681; People v. Melson (1974), 19 Ill. App. 3d 438, 311 N.E.2d 763.) Equally well established is that a minor is entitled to elementary due process (In re Gault (1967), 387 U.S. 1, 18 L. Ed. 2d 527, 87 S. Ct. 1428) and that a defendant charged with a probation violation is entitled to a conscientious judicial determination of the charge according to accepted and well-established procedural methods. (People v. Pier (1972), 51 Ill. 2d 96, 281 N.E.2d 289.) The charging instrument in the instant case meets none of these standards.

In Tempel it was at least alleged where the premises were located which were the subject of the burglary; in Johnson the persons whose property was stolen were alleged by name; in Melson the premises were named. This is little more information than in the instant case, but it is still . more. In People v. Monick (1977), 51 Ill. App. 3d 783, 367 N.E.2d 225, little information was furnished other than a specific date, but defense counsel raised the issue below.

In the instant case there is lacking any allegation whatsoever of persons, places or things. There is nothing but a bare allegation of two dates. This represents notice pleading at its worst and is even more offensive since the Supreme Court Rules on criminal discovery (73 Ill. 2d Rules 411, 412, 413, 414, and 415) do not apply to juvenile proceedings. See Ill. Ann. Stat., ch. 110A, par. 411, Committee Comments, at 674 (Smith-Hurd 1976).

While the State is to be sharply criticized for its lackadaisical pleading, no honors are to be awarded defense counsel in this matter. No specific objection was ever raised to the petition until the motion for new trial filed more than one month after the notice of appeal. There was a failure to register objection at the earliest possible moment, but even apart from this, it is elementary that a notice of appeal divests the trial court of jurisdiction. By filing the notice in this case on the same day as the order appealed from, counsel automatically precluded the trial court from correcting the error.

The minor argues that the deficiency was brought to the trial court’s attention, but it was not by way of objection but by way of argument at the close of the revocation hearing. As such, it was directed to the sufficiency of the evidence, not to the legal point.

We have stated that we are reluctant to find waiver. (Compare In re Carson (1973), 10 Ill. App. 3d 387, 294 N.E.2d 75.) However, a variety of cases have held that waiver is the rule under the circumstances when the issue is raised for the first time on appeal. (People v. Gilmore (1976), 63 Ill. 2d 23, 344 N.E.2d 456 (sufficiency of an indictment); People ex rel. Ryan v. Sempek (1958), 12 Ill. 2d 581, 147 N.E.2d 295 (lack of definiteness in a dependency petition); People v. White (1975), 33 Ill. App. 3d 523, 338 N.E.2d 81 (lack of specific subsection of the statute); In re Dyess (1978), 62 Ill. App. 3d 571, 378 N.E.2d 1313 (failure to raise issue of age).) We find these cases analogous and hold that the failure to object specifically to the inadequacy of the charging instrument constitutes a waiver when the issue is raised for the first time on appeal.

In brief, neither side covered itself with glory in this case. We trust we shall not see its like again.

The minor’s final argument is that the trial court abused its discretion in committing him to the Department of Corrections. A review of the minor’s history shows a rapidly accelerating delinquent behavior pattern. There was no abuse.

The order of the circuit court of Adams County is affirmed.

Affirmed.

GREEN, P. J., and MILLS, J., concur.