author: JUSTICE HARRISON KASSERMAN, J.,

text:
    GARY HOLMES, Plaintiff-Appellee, v. SAHARA COAL COMPANY, Defendant-Appellant and Third-Party Plaintiff and Counterdefendant-Appellee (Caterpillar Tractor Company, Third-Party Defendant and Counterplaintiff-Appellant).
    Fifth District
    No. 5—83—0809
    Opinion filed March 13, 1985.
    Rehearing denied April 11, 1985.

      KASSERMAN, J., dissenting.
    William Kent Brandon, of Mitchell, Brandon & Schmidt, of Carbondale, for appellant Caterpillar Tractor Company.

      Harris, Lambert & Wilson, of Marion, for appellee Gary Holmes.
    Lord, Bissell & Brook, of Chicago, and Jelliffe, Ferrell & Morris, of Harrisburg (Hugh C. Griffin and Donald V. Ferrell, of counsel), for Sahara Coal Company.
   JUSTICE HARRISON

delivered the opinion of the court:

Sahara Coal Company (Sahara) and Caterpillar Tractor Company (Caterpillar) appeal a judgment entered in the circuit court of Williamson County. The action was brought by Gary Holmes (plaintiff) to recover for personal injuries. Plaintiff’s action against Sahara was predicated on a theory of negligence. Plaintiff’s action against Caterpillar was predicated on a theory of strict liability. Sahara filed a counterclaim for indemnity against Caterpillar, and Caterpillar filed an action for contribution against Sahara. Following a jury trial, judgment was entered in favor of plaintiff against Sahara in the amount of $183,000. Judgment was entered in favor of plaintiff against Caterpillar in the amount of $200,000. The jury returned a verdict in favor of Caterpillar on Sahara’s action for indemnity. Sahara was found liable in contribution to Caterpillar, and judgment was entered in the amount of $120,000.

Plaintiff was employed as a field mechanic by Fabick Machinery Company. On November 20, 1978, plaintiff was sent to repair a Caterpillar model 637D tractor-scraper, owned by Sahara. After arriving at Sahara’s mining site, plaintiff proceeded to the working area. Plaintiff was accompanied by Sahara employee Denzel Butler. The tractor-scraper in need of repair was operated by Deon Wallace. Upon being approached by plaintiff and Mr. Butler, Mr. Wallace turned off the machine and left the operator’s compartment. Plaintiff proceeded to work on the tractor-scraper. After approximately 15 to 20 minutes, plaintiff requested that Mr. Wallace start the engine. As Mr. Wallace started the engine, a piece of metal (the bail) located at the front of the tractor-scraper rose and pinched plaintiff’s leg against the bail cylinder.

The testimony at trial established that the bail is controlled by a lever which operates in three positions. When the engine is started with the lever in two of these positions (the “cushion ride-bail up” and “lock down-bail up” positions), the bail rises automatically. When the engine is started with the lever in the remaining position (the “lock down-bail down” position), the bail remains down. A decal above the bail lever warned that the lever should be placed in the “lock down-bail down” position when the machine was parked or being serviced, and that injury to persons working under the bail cylinder could result if the engine were started with the lever in the “bail up” position. Additional warnings and instructions were printed in the operator’s manual. A decal in the operator’s compartment directed the operator to read the manual and to lower all raised equipment before starting the engine.

Deon Wallace testified that he could not recall reading the warning decal near the bail lever prior to the accident, and that he had never read the operator’s manual. Mr. Wallace knew, however, that the bail would rise automatically if the engine were started with the bail lever in any but the “lock down-bail down” position. Mr. Wallace testified that before starting the engine, he asked plaintiff “if all was clear,” and that he thought plaintiff answered affirmatively.

Plaintiff testified that he was familiar with the model 637D tractor-scraper and knew that the bail lever would rise if the engine were started with the bail lever in the “bail up” or “cushion ride” positions. He stated that Deon Wallace said nothing before starting the engine at plaintiff’s request, and that it had not been necessary to position his (plaintiff’s) leg between the bail and bail cylinder in order to repair the machine.

Thomas Hrodey, a design engineer employed by Caterpillar, testified that an alternative design of the tractor-scraper would have prevented plaintiff’s injury. The installation of a heavier spring in the bail operating mechanism, according to Mr. Hrodey, would have prevented the bail mechanism from rising. Mr. Hrodey estimated the cost of the spring at $25.

Caterpillar alleges that the trial court erred in denying Caterpillar’s motion for judgment notwithstanding the verdict. Caterpillar argues that the evidence established that the model 637D tractor-scraper was, as a matter of law, neither defective nor unreasonably dangerous in light of Caterpillar’s warnings to the operator of the machine. The fact that a manufacturer supplies warning, however, does not mean that the warning is adequate to shift or reduce the risk inherent in a dangerous product. (Palmer v. Aveo Distributing Corp. (1980), 82 Ill. 2d 211, 221-22, 412 N.E.2d 959.) This determination is generally a question of fact for the jury. (82 Ill. 2d 211, 221.) A warning may be found inadequate, for example, if it does not specify the risk presented by the product, if its size or print is too small or inappropriately placed, or if it is unlikely to reach foreseeable users of the product. (82 Ill. 2d 211, 221-22.) In the instant case, the jury reasonably could have inferred that the decals in the operating compartment did not accurately specify the danger of starting the engine with the bail level in the “cushion ride-bail up” position, that the decals were of insufficient size, or even that the decals were inappropriately placed. The jury could also have inferred that the warnings in the operator’s manual were inadequate to warn foreseeable users such as Deon Wallace. Judgment notwithstanding the verdict should be entered only where all the evidence viewed in the aspect most favorable to the opponent so overwhelmingly favors the movant that no contrary verdict based on the evidence could ever stand. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504.) The evidence did not so overwhelmingly favor the movant in the instant case.

Caterpillar alleges that the trial court erred in refusing Caterpillar’s jury instruction No. 5 (as originally tendered) and in allowing Sahara’s instruction No. 10. Caterpillar’s original instruction No. 5 concerned the use of verdict forms with reference both to Caterpillar’s claim for contribution against Sahara and to Sahara’s claim for indemnity against Caterpillar. The court gave that portion of instruction No. 5 pertaining to Caterpillar’s claim for contribution. In place of that portion of instruction No. 5 pertaining to Sahara’s claim for indemnity, the court substituted Sahara’s instruction No. 10. Sahara’s instruction No. 10 (Illinois Pattern Jury Instructions, Civil, No. 500.24 (Supp. 1977)) contained the same language as that portion of Caterpillar’s instruction No. 5 which the court refused. Caterpillar nevertheless argues that the separation of the instructions regarding contribution and indemnity served to confuse the jury. We find no support in the record for this assertion.

Caterpillar alleges that the court erred in admitting testimony of an accident occurring in 1974 as a result of a person’s contact with a similar model tractor-scraper. Following Caterpillar’s cross-examination of Fabick mechanic Bill Ollis, during which Ollis stated that he was unaware of any accidents similar to the one involving plaintiff, plaintiff’s counsel was permitted to read into evidence a portion of the discovery deposition of Thomas Hrodey. The following questions and answers were read:

“Q: Do you know the reasons for the warnings contained in the decals to be placed on the machine identified as Exhibit 2 about which you have testified, what the reason for those warnings was?
A: There was another incident on a 657 size vehicle — it happened prior to this accident — of a mechanic getting pinched under the bail cylinder.
Q: What circumstances occurred? Was the bail in a down position and the engine started? A similar set of facts?
A: Yes.
Q: Or what? Do you know how long that event to which you just alluded took place prior to the — let’s say prior to 1977 when this machine was manufactured?
A: I believe somewhere in 1974.
Q: How did you learn of that, what I am going to call the 1974 incident?
A: We heard of an incident report of a man getting pinched. Now we realized the mechanics could possibly be up there around the bail and they started the engine and he got pinched in there.”

Evidence of prior similar occurrences is admissible for the purpose of demonstrating that a manufacturer possessed knowledge of a defect in a particular product prior to the accident in the litigated case. (Moore v. Remington Arms Co. (1981), 100 Ill. App. 3d 1102, 1110-11, 427 N.E.2d 608.) The issue of Caterpillar’s knowledge of the product’s dangerous propensity was properly before the court, since Caterpillar’s strict liability in tort rested upon its alleged failure to provide adequate warning of the danger. A manufacturer’s knowledge of a product’s dangerous condition must be established in order to impose strict liability for failure to warn. Woodill v. Parke Davis & Co. (1980), 79 Ill. 2d 26, 33, 402 N.E.2d 194.

Caterpillar argues that the 1974 accident is “totally dissimilar” to that in the instant case because the prior accident involved a model 657 tractor-scraper and not, as in plaintiff’s accident, a model 637D. The question of whether a prior occurrence is sufficiently similar to the subsequent occurrence is generally a determination within the sound discretion of the trial court. (Johnson v. Amereo, Inc. (1980), 87 Ill. App. 3d 827, 846, 409 N.E.2d 299.) It is not necessary that the facts and circumstances surrounding the accidents be identical; substantial similarity is all that is required. (Rucker v. Norfolk & Western Ry. Co. (1979), 77 Ill. 2d 434, 440-41, 396 N.E.2d 534.) Plaintiff’s accident in the instant case bore substantial similarity to the 1974 accident which was the subject of Mr. Hrodey’s deposition. The alleged dissimilarity of the equipment is undermined by Mr. Hrodey’s admission that the accident involving a model 657 tractor-scraper prompted Caterpillar to place warnings in the cab and operator’s manual of the model 637D.

Both Sahara and Caterpillar allege that the trial court erred in certain rulings regarding the admissibility of evidence demonstrating Caterpillar’s post-occurrence adoption of a design modification. Before trial, Caterpillar stipulated to the feasibility of an alternate design of the tractor-scraper which would have prevented plaintiff’s injury. Caterpillar then offered a motion in limine precluding the introduction of evidence regarding modification of the tractor-scraper subsequent to plaintiff’s injury. Sahara contends that the court erred in granting Caterpillar’s motion in limine. Caterpillar contends that the court erred in admitting plaintiff’s exhibit No. 32 (a Caterpillar service letter regarding proposed modifications of the bail selector valve and control valve) together with certain cross-examination testimony of Thomas Hrodey regarding such modifications, thus violating the court’s own in limine order.

Although evidence of post-occurrence modification of an allegedly defective product is not admissible in an action predicated on negligence, such evidence is admissible where, as in the instant case, the action is predicated on a theory of strict liability. (Burke v. Illinois Power Co. (1978), 57 Ill. App. 3d 498, 514, 373 N.E.2d 1354.) Plaintiff’s exhibit No. 32 and Thomas Hrodey’s cross-examination testimony were, then, properly admitted for the purpose of demonstrating that Caterpillar’s original design was defective, notwithstanding Caterpillar’s stipulation regarding the feasibility of an alternate design. Caterpillar’s stipulation that it was feasible to design a tractor-scraper upon which plaintiff would not have been injured cannot reasonably be characterized as a concession that Caterpillar’s actual design resulted in a defective product; rather, Caterpillar’s stipulation conceded but one element of a necessarily complex determination. Nevertheless, we cannot view the court’s order in limine as reversible error, since the only evidence of the product’s post-occurrence modification which was offered at trial was admitted despite the erroneous in limine order.

Sahara alleges that the trial court erred in directing the jury to find that Deon Wallace was not the “loaned servant” of Fabick. The loaned-servant doctrine is a maxim of agency law which recognizes that the agent or employee of one principal may in fact become the employee of a second principal when the employee is loaned to the second principal for some special purpose. (Heinrich v. Peabody International Corp. (1984), 99 Ill. 2d 344, 351, 459 N.E.2d 935.) The essential criterion for determining the existence of a loaned-servant relationship is that of control over the employee. (Kristensen v. Gerhardt F. Meyne Co. (1982), 104 Ill. App. 3d 1075, 1079, 433 N.E.2d 1050.) The determination of control will depend upon such factors as the context in which the employee was hired, the manner in which the employee is paid, the procedure according to which the employee may be discharged, and the way in which the employee’s work is directed or supervised. Bituminous Casualty Corp. v. Wilson (1983), 119 Ill. App. 3d 454, 460, 456 N.E.2d 696.

The allegation of a loaned-servant relationship usually will present a question of fact for the jury. (119 Ill. App. 3d 454, 460.) In the instant case, however, there was no evidence that Mr. Wallace was hired in a context suggesting control by Fabick. Neither was there evidence suggesting that Fabick was responsible for paying Mr. Wallace, nor that Fabick possessed authority to discharge him. These essential elements of control, then, were not established by the testimony at trial. Mr. Wallace’s act of starting the machine at plaintiff’s behest was not, in itself, sufficient to establish Fabick’s control over Mr. Wallace. The mere fact that an employee in the course of a special service responds to directions or signals given by a purported second principal does not make the employee a loaned servant. (Richard v. Illinois Bell Telephone Co. (1978), 66 Ill. App. 3d 825, 832, 383 N.E.2d 1242.) In the instant case, the evidence did not demonstrate the requisites of a loaned-servant relationship, and the facts were not subject to inferences which would allow a reasoned finding of such a relationship. The trial court did not abuse its discretion by directing a verdict for plaintiff on this issue.

Sahara alleges that the jury’s finding that only 8.5% negligence should be allocated to plaintiff was against the manifest weight of the evidence presented at trial. A verdict is against “the manifest weight of the evidence” only when an opposite conclusion is clearly apparent or when the finding of the jury appears arbitrary and unsubstantiated by the evidence. (Goodrick v. Bassick Co. (1978), 58 Ill. App. 3d 447, 454, 374 N.E.2d 1262.) A reviewing court will not overturn a jury’s verdict unless, considering all evidence in the light most favorable to the party who prevailed at trial, the jury’s conclusion is palpably erroneous and wholly unwarranted. (Lynch v. Board of Education (1979), 72 Ill. App. 3d 317, 326, 390 J.E.2d 526, affd (1980), 82 Ill. 2d 415, 412 N.E.2d 447.) In the instant case, substantial evidence was presented in support of plaintiff’s allegations that Deon Wallace was negligent in his operation of the tractor-scraper, and that the tractor-scraper itself was an unreasonably dangerous product. The precise allocation of the parties’ fault in light of all the evidence was a matter upon which reasonable persons could disagree. Upon reviewing the record, we cannot characterize the jury’s finding as arbitrary or palpably erroneous.

Sahara alleges that the jury’s answer to special interrogatory No. 2 entitled Sahara to judgment against Caterpillar both on Sahara’s claim for indemnity and on Caterpillar’s claim for contribution. The question asked of the jury was the following:

“Question No. 2: Was the 637D tractor-scraper machine defective and unreasonably dangerous at the time it left the control of Caterpillar, which defective and unreasonably dangerous condition was a proximate cause of the injuries and damages sustained by Gary Holmes?”

The jury answered the question in the affirmative. The jury had been instructed that if it should find that the tractor-scraper was in an unreasonably dangerous or defective condition at the time it left Caterpillar’s control, a verdict should then be entered in favor of Sahara on Sahara’s action for indemnity. Caterpillar argues that Sahara failed to state a cause of action, since the concept of implied indemnity has been superseded by the General Assembly’s adoption of the Contribution Among Joint Tortfeasors Act (Ill. Rev. Stat. 1981, ch. 70, par. 301 et seq.) and, in any event, Caterpillar is entitled to judgment as a matter of law since Sahara neither alleged nor proved the necessary pre-tort relationship between Sahara and Caterpillar.

The question of whether the General Assembly intended the Contribution Among Joint Tortfeasors Act to replace rather than supplement the common law concept of implied indemnity has generated considerable discussion. [E.g., Anich, Implied Indemnity After Skinner & the Illinois Contribution Act: The Case for a Uniform Standard, 14 Loy. U. Chi. L. J. 531 (1983); Appel & Michael, Contribution Among Joint Tortfeasors in Illinois: An Opportunity for Legislative & Judicial Cooperation, 10 Loy. U. Chi. L. J. 169, 192-93 (1979); Ferrini, The Evolution from Indemnity to Contribution — A Question of the Future, If Any, of Indemnity, 59 Chi. Bar. Rec. 254 (1978).) While acknowledging the debate, the Illinois Supreme Court thus far has declined to resolve the issue. (Heinrich v. Peabody International Corp. (1984), 99 Ill. 2d 344, 350-51, 459 N.E.2d 935; Simmons v. Union Electric Co. (1984), 104 Ill. 2d 444, 453-54.) The appellate court, in a thorough and well-reasoned disposition, recently held that the Contribution Act has in fact extinguished actions based on implied indemnity, with two “possible]” exceptions. (Morizzo v. Laverdure (1984), 127 Ill. App. 3d 767, 774, 469 N.E.2d 653.) The possible exceptions noted by the court were cases involving either some pre-tort relationship whereby one party becomes vicariously liable for another (e.g, employer-employee, owner-lessee, master-servant), or, an “upstream” claim of strict liability for an unreasonably dangerous or defective product. (127 Ill. App. 3d 767, 774.) One justice of the Morizzo court reasoned that these proposed exceptions are unfounded. (127 Ill. App. 3d 767, 775 (Downing, J., specially concurring).) “[W]ith the passage of the Contribution Act,” Justice Downing stated, “it is reasonable to conclude that the legislature intended that, without qualification, implied indemnity should no longer exist. I see no reason to distinguish between vicarious liability, indemnity in tort cases, or cases alleging ‘upstream’ strict liability.” (127 Ill. App. 3d 767, 775.) We agree.

The right of contribution provides a mechanism whereby each defendant in a tort action may bear the loss according to his responsibility for the tortious act. This apportionment of the burden complements the principles of comparative negligence and comparative fault enunciated by our supreme court. In indemnity, the measure of recovery is all or nothing. (Heinrich v. Peabody International Corp. (1984), 99 Ill. 2d 344, 459 N.E.2d 935.) Allowing one tortfeasor (the indemnitee) to shift the entire loss to another (the indemnitor) imposes upon the indemnitor a burden necessarily disproportionate to the indemnitor’s responsibility for the injury. Such an imposition in the so-called exceptional cases creates a scheme according to which a tortfeasor’s culpability bears no direct relation to his burden of loss in cases involving vicarious liability or strict “upstream” liability, while necessarily determining the tortfeasor’s burden in all other cases. The effect of this scheme is to nullify the equitable equation of the degree of responsibility for the tortious act and the burden of loss for the harm thereby inflicted, thus undermining the basis upon which the right of contribution, as well as the principles of comparative negligence and comparative fault, rest. We cannot, in light of such legislative history as we possess, attribute to the General Assembly an intention in enacting the Contribution Act inconsistent with what would appear to be the principles furthered by the Act. It is our judgment that the Contribution Act has extinguished all actions for implied indemnity, and that Sahara’s complaint thus failed to state a cause of action.

Finally, Sahara alleges that the contribution judgment in favor of Caterpillar should be reduced by 8.5% to account for plaintiff’s comparative negligence. This allegation fails to realize that plaintiff’s action against Sahara was predicated on a theory of negligence, that plaintiff’s action against Caterpillar was predicated on a theory of strict liability, and that the jury’s attribution of 8.5% negligence to plaintiff affects neither Caterpillar’s liability to plaintiff nor Sahara’s liability to Caterpillar. The jury specifically found that plaintiff was guilty of negligence with regard to count I of plaintiff’s complaint, i.e., plaintiff’s action against Sahara. The jury specifically found that plaintiff did not assume the risk of the defective and unreasonably dangerous condition of the tractor-scraper alleged in count II of plaintiffs complaint, i.e., plaintiffs action against Caterpillar. The jury-made the following finding with regard to Caterpillar’s contribution action against Sahara.

“We, the jury, found that Caterpillar is entitled to contribution from Sahara and further find the following:
Assuming that 100% represents the total combined fault of Sahara and Caterpillar on the claim for contribution, we find the percentage of fault attributable to Sahara is 60% percent, for which Caterpillar should receive contribution.”

The trial court correctly entered judgment against Sahara in the amount of $120,000, reflecting 60% of Caterpillar’s obligation to plaintiff. It was the judgment regarding Caterpillar’s liability to plaintiff, unaffected by plaintiff’s negligence, upon which Caterpillar sought contribution from Sahara.

The judgment of the trial court is affirmed.

Affirmed.

WELCH, J., concurs.

KASSERMAN, J.,

dissenting:

I am unable to conclude, as does the majority, that the Illinois Contribution Among Joint Tortfeasors Act (Ill. Rev. Stat. 1981, ch. 70, par. 301 et seq.) extinguishes all actions of implied indemnity; therefore, I respectfully dissent.

In adopting the special concurring opinion of Justice Downing in Morizzo v. Laverdure (1984), 127 Ill. App. 3d 767, 469 N.E.2d 653, the majority in the case at bar overrules the majority of the court in Morizzo in its decision that certain causes of action for implied indemnity are not extinguished by the Contribution Act. The court in Morizzo did, in fact, determine that implied ijdemnity is still viable in Illinois with respect to cases involving some pre-tort relationship between parties which gives rise to a duty to indemnify, such as those involving vicarious liability (lessor-lessee; employer-employee; owner and lessee; master and servant) and “upstream” claims in a strict liability action.

In the case at bar, Sahara’s counterclaim against Caterpillar is an “upstream” claim in a strict liability action and, consequently, is embraced within one of the specified instances in which the Morizzo court found that implied indemnity still exists. Such a claim falls squarely within the ambit of the rule announced in Lowe v. Norfolk & Western Ry. Co. (1984), 124 Ill. App. 3d 80, 97, 463 N.E.2d 792, 805, in which this court stated that the Illinois Contribution Act does not prohibit an action for “upstream” indemnity in products liability cases.

Applying the above rationale to the instant appeal, it is my conclusion that Sahara’s counterclaim stated a cause of action against Caterpillar for implied indemnity. Furthermore, the jury in its answer to special interrogatory No. 2 found that Caterpillar placed a defective and unreasonably dangerous product in the stream of commerce and that such defective and dangerous condition was the proximate cause of the injuries sustained by plaintiff. Therefore, Sahara would have been entitled to a judgment on its counterclaim against Caterpillar for indemnity; and although “downstream” indemnity has generally been prohibited, Caterpillar should be permitted to seek contribution from Sahara to establish that it is entitled to contribution on the basis that Sahara misused or assumed the risk of the defective product. Cf. Lowe v. Norfolk & Western Ry. Co. (1984), 124 Ill. App. 3d 80, 97, 463 N.E.2d 792, 805.

For the foregoing reasons, I would reverse the decision of the trial court and remand this cause for a new trial consistent with this dissent.


source: Caselaw Access Project

author: JUSTICE KARNS

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RONALD WREN, SR., Defendant-Appellant.
    Fifth District
    No. 5—83—0680
    Opinion filed February 28, 1985.
    Rehearing denied March 20, 1985.

      Randy E. Blue and Daniel M. Kirwan, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    John Baricevic, State’s Attorney, of Belleville (Kenneth R. Boyle, Stephen E. Norris, and Raymond P. Buckley, all of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE KARNS

delivered the opinion of the court:

Ronald Wren, Sr., appeals from the judgment of the circuit court of St. Clair County denying relief on his post-conviction petition.

In November 1982 defendant entered a negotiated plea of guilty to the offense of armed robbery (Ill. Rev. Stat. 1981, ch. 38, par. 18— 2). His guilty plea was accepted, and in January 1983 he was sentenced to 10 years’ imprisonment, despite the court’s awareness that plea negotiations had taken place and the State would recommend an eight-year term. In April 1983, while imprisoned, defendant filed a pro se petition for post-conviction relief. (Ill. Rev. Stat. 1983, ch. 38, par. 122 — 1 et seq.) In July 1983, through court-appointed counsel, defendant amended his petition. He alleged that the trial court did not properly admonish him of his rights upon entering his plea. He also alleged that he was denied effective assistance of counsel in that his retained counsel in the former proceedings “coerced [him] into pleading guilty” and “failed to file a Motion to Withdraw the Plea of Guilty and, further, failed to file a Petition for Post-Conviction Relief, although he assured Petitioner he would do so.”

In September 1983 the post-conviction hearing was held and commenced as follows:

“[Defense Counsel]: Your Honor, this is a post conviction petition alleging inassistance [sic] of counsel.
[The Court]: Who was counsel?
[Defense Counsel]: Jim Gomric.
[The Court]: Denied. When they start raising incompetence of our best trial counsel, that’s the end of the line as far as I’m concerned. They’ve got nothing else to do down' there except sit there and draw up papers? But, let’s go ahead with it.
[Defense Counsel]: I’d like to put on some brief testimony.
[The Court]: Sure, put on anything you want. I’m not blaming you. I’m blaming the system. They have got it now so they never are convicted. Forty years later, they are still filing papers.”

Defendant was the sole witness. He testified without objection that after he pleaded guilty, his trial counsel told him that he would appeal the judgment “that wasn’t part of the bargain” and that counsel would later contact him. He testified that he had no knowledge about whether trial counsel performed further work on the case, though allegedly he was assured that counsel would do something. He testified that he had written trial counsel four letters and that his mother had also tried to contact counsel, all to no avail. Defendant further testified without objection that trial counsel told him that if he “went along” with eight years, “[‘] I guarantee you get the eight years.[’] So, I said, ‘Cool, I go along with eight years.’ Then, get in front of the Judge, it’s ten.”

The trial court noted it was not bound by plea negotiations and concluded the hearing by denying relief to defendant.

Defendant’s sole contention on appeal is that a new post-conviction hearing is required because the presiding judge was predisposed to rule against him. His argument essentially is that the trial court's remarks foreclosed the possibility of an unbiased determination of whether trial counsel’s inaction, after the proceedings which resulted in his conviction, amounted to ineffective representation. Assuming, arguendo, the court’s remarks were inappropriate and indicative of predisposition, we nonetheless must examine the record to determine if anything occurred in the plea proceedings which could warrant the trial court’s granting defendant the relief sought. No purpose would be served in granting defendant a new hearing if Rule 402 (87 Ill. 2d R. 402) were complied with in all respects, as regardless of the trial court’s remarks, defendant’s prior record well supported the 10-year sentence imposed.

Defense counsel at oral argument conceded that defendant failed to produce evidence to substantiate his claim that he was “coerced” to plead guilty. Nonetheless, defendant argues that he was “abandoned” by trial counsel, and with effective representation he would have been able to establish a defect that occurred during the taking of the plea, namely, the trial court’s failure to inform him in accordance with Supreme Court Rule 402(d)(3) (87 Ill. 2d R. 402(d)(3)) that the court was not bound by the plea agreement.

The record establishes a patent violation of Supreme Court Rule 402(d)(3) in that defendant was not informed before his plea was accepted that despite the plea agreement the court was not bound to honor it.

This record stands in contrast to the admonition given defendant in People v. Lambrechts (1977), 69 Ill. 2d 544, 372 N.E.2d 641. There, the defendant was told, in compliance with Rule 402(d)(3), that the plea agreement was not binding on the court and that a different sentence could be imposed. The defendant there was fully informed that the court had not concurred in the agreement. This case presents a much more obvious violation of Rule 402 than was present in People v. Collins (1981), 100 Ill. App. 3d 611, 426 N.E.2d 1274, where defendant was allowed to withdraw her plea and plead anew where the trial court fully informed the defendant as required by Rule 402 that it had not concurred in the plea agreement but failed to inform the defendant if she persisted in her plea, the disposition could be different from that contemplated by the agreement, and failed to give the defendant an opportunity to persist in or withdraw her plea at time of sentencing. The court considered the violation to have due-process implications and addressed the issue as plain error.

It is no less clear by this record that defendant could have filed a Rule 604(d) (87 Ill. 2d R. 604(d)) motion to withdraw his plea and that his guilty plea should have been vacated and defendant allowed to plead anew. According to his uncontroverted testimony, this is what he expected, and the record bears out the reasonableness of his expectation. Even if a Rule 604(d) motion was denied, however, defendant would have been able to appeal that denial and would have been faced with a significantly lesser burden than the one faced in this proceeding to secure post-conviction relief.

Our courts have considered the failure of trial counsel to file 604(d) motions under circumstances similar to this to be ineffective assistance of counsel and have allowed the late filing of an appropriate motion, even though no motion was filed within the 30-day period provided for in the Rule. (People v. Morguez (1980), 90 Ill. App. 3d 471, 413 N.E.2d 128; People v. Brownell (1980), 86 Ill. App. 3d 697, 408 N.E.2d 304; People v. Pulley (1979), 75 Ill. App. 3d 193, 394 N.E.2d 47; People v. Kinzer (1978), 66 Ill. App. 3d 466, 384 N.E.2d 50; People v. Porter (1978), 61 Ill. App. 3d 941, 378 N.E.2d 788; People v. Meacham (1977), 53 Ill. App. 3d 762, 368 N.E.2d 400.) For these reasons, we view it proper to consider defendant’s petition as a belated but cognizable motion to withdraw his plea of guilty, based on his uncontroverted assertion that trial counsel failed to file the 604(d) motion clearly warranted.

Accordingly, this cause is remanded to the circuit court of St. Clair County with directions that counsel, retained or appointed, if appropriate, be allowed to file a Rule 604(d) motion to withdraw defendant’s plea of guilty and that if such a motion is filed, that defendant be allowed to withdraw his plea and plead anew. If defendant declines to file such a motion, the judgment of conviction is affirmed.

Remanded with directions.

JONES, P.J., and WELCH, J., concur.


author: JUSTICE HARRISON

text:
    H. L. MILLER, Plaintiff-Appellant, v. CARL J. WOOTERS, Defendant-Appellee.
    Fifth District
    No. 5—83—0741
    Opinion filed February 26, 1985.
    George H. Huber and Richard O. Habermann, both of Vandalia, for appellant.
    Edward C. Eberspacher, of Dove & Dove, of Shelbyville, for appellee.
   JUSTICE HARRISON

delivered the opinion of the court:

H. L. Miller, plaintiff, appeals from a judgment of the circuit court of Fayette County dismissing with prejudice his third amended complaint against Carl Wooters, defendant. Plaintiff’s complaint alleged that defendant breached a contract between the parties under which defendant was to purchase plaintiff’s 1974 Kenworth truck for $12,000. In dismissing the complaint, the court ruled that plaintiff had failed to plead sufficient facts to bring this case within the exception to the Statute of Frauds contained in the Uniform Commercial Code. (Ill. Rev. Stat. 1983, ch. 26, par. 2 — 201(3)(c).) For the reasons which follow, we reverse and remand for further proceedings.

The Statute of Frauds set forth in the Uniform Commercial Code provides that a contract for the sale of goods for $500 or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that such a contract has been made between the parties. (Ill. Rev. Stat. 1983, ch. 26, par. 2 — 201(1).) In this case, plaintiff does not argue on appeal that there exists a writing sufficient to show that a contract was made, but relies on the statutory exception which waives the writing requirement “with respect to goods for which payment has been made and accepted or which have been received and accepted” (Ill. Rev. Stat. 1983, ch. 26, par. 2 — 201 (3)(c)). Plaintiff’s amended complaint alleged, in pertinent part:

“3. That the Defendant, in consideration of Plaintiff conveying title to said vehicle and delivering possession to Defendant, gave to Plaintiff his check in the sum of Twelve-thousand dollars ($12,000.00), being the agreed full purchase price which was accepted by Plaintiff as payment in full at which time the Defendant accepted delivery of the said vehicle.
4. That the Plaintiff thereupon endorsed the title to Defendant and delivered the title to him and obtained a release of lien from the First National Bank of Vandalia, Vandalia, Illinois, based upon the subsequent delivery of Defendant’s check to the said bank.
* * *
6. That the Defendant herein has refused to abide by the terms of the agreement and has issued a stop payment order on the check which action of Defendant was willful and has caused the Plaintiff to suffer damages ***.”

Attached to plaintiff’s complaint is a photocopy of what appears to be a check in the amount of $12,000 made out from defendant to plaintiff. This document contains the notation “74 Kenworth” in the lower lefthand corner, and is marked “STOP PAYMENT” in two places.

In defendant’s motion to dismiss the complaint, he alleged that the contract was not taken out of the Statute of Frauds, in that payment had not been made and accepted or the goods had not been received and accepted. Appended to the motion to dismiss was an affidavit of defendant, in which he stated:

“2. That he has never made any payment for the 1974 Kenworth semi-trailer tractor, Model number K-125, serial number 227254.
3. That within one (1) working day after first having an opportunity to inspect the said tractor, he signified to H.L. Miller that he would not retain them by reason of their non-conformity to the representations made.
4. That within one (1) working day of the first opportunity to inspect the said goods, he notified H.L. Miller that he rejected the goods and returned the physical possession of the said goods to H.L. Miller, and that H.L. Miller, upon information and belief, took the goods and sold them to a third party.”

In granting the motion to dismiss the complaint with prejudice, the court made a docket entry indicating, in part, that “had payment been made and accepted there would bp no lawsuit.” A motion for reconsideration of the court’s ruling was denied, and plaintiff filed timely notice of appeal.

While our research discloses no Illinois case on point, examination of relevant authorities from other States leads us to conclude that the court erred in holding, based on the facts before it, that payment for the truck had not been “made and accepted.” Plaintiff’s third amended complaint alleged that defendant gave plaintiff a check for the truck, and that defendant stopped payment on the check; defendant’s affidavit, while stating that legal conclusion that payment had not been made, does not deny that defendant initially gave the check to plaintiff, or that the check was originally intended to be in payment for the truck. It has been recognized that delivery of a check by the buyer to the seller constitutes a “payment” within the meaning of the statute in question (Kaufman v. Solomon (3d Cir. 1975), 524 F.2d 501, 502), and that the stopping of payment on the check by the buyer is of no legal significance regarding whether or not an enforceable contract came into being upon the delivery and acceptance of the check. (Cohn v. Fisher (1972), 118 N.J. Super. 286, 287 A.2d 222; Presti v. Wilson (E.D.N.Y. 1972), 348 F. Supp. 543.) The rationale for this rule was expressed in Cohn v. Fisher:

“The fact that defendant had stopped payment on the check is of no legal significance. As stated by Professor Corbin, ‘The requirements of the statute [Statute of Frauds] are satisfied even though the drawer of the check causes its dishonor by stopping payment; the oral contract is still enforceable and the holder can maintain suit against the drawer for the amount of the check.’ Corbin on Contracts, sec. 495 (1950). The Uniform Commercial Code takes the same view in N.J.S.A. 12A:3-802(l)(b) [Illinois version at Ill. Rev. Stat. 1983, ch. 26, par. 3 — 802]: Tf the instrument is dishonored action may be maintained on either the instrument or the obligation.’ Thus, a subsequent stop-payment order has no bearing on whether or not an enforceable contract came into being upon the delivery and acceptance of the check.” 118 N.J. Super. 286, 297, 287 A.2d 222, 228.

This holding appears to be the product of sound reasoning, and we elect to follow it here. Accordingly, since plaintiff’s third amended complaint sets forth facts which, if true, bring the instant contract within the “payment made and accepted” exception to the Statute of Frauds, and since defendant’s affidavit offers only a bare legal conclusion to the contrary, the judgment dismissing the complaint must be reversed, and this cause remanded for further proceedings not inconsistent herewith.

Reversed and remanded.

JONES, P.J., and WELCH, J., concur.


author: PRESIDING JUSTICE JONES

text:
    HARRY D. DEATHERAGE, Plaintiff-Appellant, v. RUSSELL LEWIS et al., Defendants-Appellees.
    Fifth District
    No. 81—565
    Opinion filed March 1, 1985.

      James E Thebeau, Jr., of Granite City, for appellant.

      Irvin Slate, Jr., of Granite City, for appellees Russell Lewis and Estella Lewis.
   PRESIDING JUSTICE JONES

delivered the opinion of the court:

At issue in the instant case is whether the plaintiff’s possession of property with his father during the plaintiff’s minority was sufficient to show his acquisition of the property by adverse possession. We find that it was not and accordingly affirm the judgment of the trial court.

The property that is the subject of this suit consists of a strip of ground 27 feet in width and approximately 600 feet in length. The parties described the property as a “ditch” lying approximately eight to 10 feet below the property north and south of it. The disputed strip runs east and west along the southern border of property belonging to the various defendants and lies north of a farm once owned by the plaintiff’s father and then by his mother. The plaintiff’s father’s farm was separated from the disputed property by a strip of ground 75 feet in width. The plaintiff purchased this latter strip in 1967 but owned no other property in the area.

While the record is unclear as to the ownership of the disputed property at times relevant to this action, it appears that the property was acquired by Howard Robertson at an undisclosed date from the East Side Levee District. Robertson had also purchased the property immediately north of the disputed strip in 1968 from Ervin Schaeffer. Robertson had sold the 75-foot strip south of the disputed property to the plaintiff and, in 1977, had sold both the disputed strip and the property north of it to Russell Lewis. This property was subsequently developed by defendant Eastlands, Inc., and sold as lots to the individual defendants whose lots contained a portion of the disputed property.

At a hearing on the plaintiff’s amended complaint to quiet title to the disputed property, the plaintiff testified that he had moved with his parents to his father’s farm in 1937. At that time there was a fence along the north edge of the disputed property consisting of three or four feet of hog wire plus a strand of barbed wire. The plaintiff stated that the fence had not been maintained since the early fifties. and that he had taken down a substantial part of the fence about 20 years earlier (around 1960). The plaintiff at another point stated that the fence had not come down until after the property had been surveyed in 1969.

The plaintiff asserted that he had “constructively farmed” the property in question since 1939, when he was eight years old. More specifically, he stated that the property had been farmed by his father “who kept hogs and cows and had hog houses.” After the fifties the property had been used only to store equipment and scrap lumber and to dump trash. This use had been intermittent, and the storage and dumping had occurred primarily near the Deatherage residence. The plaintiff had not maintained the fence since the early fifties because “there was no livestock.” The plaintiff stated further that he had occasionally hunted and cut firewood on the disputed strip and that he had had a garden there about six years earlier.

Gus Smolar, a friend of the plaintiff’s for about 35 years, testified that he had seen the fence line on the disputed strip in 1944 or 1945 when it was “good and tight.” He had first noticed some deterioration of the fence between 1959 and 1964, and the fence had now been knocked down in places. Gus Smolar stated that he had observed pasturing in the ditch and that he had at one time had a tar vat in the ditch that he had used to treat fish nets. He had also seen some lumber stored there from time to time for intervals of 30 days to four or five months.

Howard T. Robertson, the previous owner of the disputed property, testified that he had lived near the property since 1945 and could see it from his home. He had been aware of the fence on the property and had known of the use of the property by the plaintiff’s father. Robertson had had no objection to this use because he had been a good friend of the plaintiff’s father. Robertson stated that he and the plaintiff’s parents and Ervin Schaeffer, from whom he had acquired the property north of the disputed strip, had been “neighbors and good friends.” Robertson stated, however, that he did not get along well with the plaintiff.

Robertson testified that by 1952 the fence on the disputed property had remained only in part. There was no work done on it after 1954, and it was no longer in existence after 1959. Robertson stated that sheep had been grazed on the disputed parcel one spring in 1948 or 1949, but he could not remember any cows being kept there. According to Robertson, the plaintiff had farmed since about 1948 or 1949.

Robertson stated further that in 1969, after he had sold the 75-foot strip of ground to the plaintiff, the plaintiff had tried to make a trade with Robertson for the disputed property. The plaintiff challenged this testimony by offering into evidence a letter he had written to Robertson’s attorney in 1969 concerning the possibility of acquiring property owned by Robertson north of the fence line.

Defendant Russell Lewis, who had purchased the disputed property from Robertson, testified that the plaintiff had approached him in early 1977, before he (Lewis) had actually acquired a deed to the property, to propose a trade of other property for the disputed strip. Lewis could not make such a trade because his loan documents had been prepared and he was afraid that his financing would be delayed by a change in the legal description.

Howard W. Robertson, son of Howard T. Robertson, testified that he had lived with his parents near the disputed property until 1955 and knew the plaintiff well. He stated that the last time the property had been used for pasturing was in the fifties. The plaintiff’s parents had kept milk cows there, but the plaintiff did not have any cows on the property. Robertson stated that he had never seen the plaintiff work on the fence and that, after the pasturing had stopped, the plaintiff had used the disputed strip intermittently to dump trash and store scrap. Most of the dumping had been south of the disputed property, however, and there had been no farm implements stored there during the last 10 years.

Following the hearing the trial court entered judgment for the defendants and against the plaintiff on his claim of ownership by adverse possession. In an extensive memorandum of judgment, the court noted that the plaintiff claimed to have commenced the period of adverse possession in 1939 when he was eight yeas old and to have continued such possession until 1959 when title was perfected. The court continued:

“The law is very clear on the question of one obtaining title by adverse possession against a minor. One cannot obtain title in that manner during the infancy of a minor owning land. It would seem to this writer that the converse should also be true — that an infant cannot obtain title by adverse possession due to the legal disability of infancy.”

The court added that it doubted whether an 8-, 9-, 10-, 11- or 12-year-old child “could form any intent to actually possess real estate in an adverse, hostile and open manner.” Since, in the instant case, the plaintiff’s legal disability of infancy would have lasted until the year 1952, the court ruled that

“adverse possession, if any, in this cause could not have commenced prior to January 1, 1952. Plaintiff would have to have had actual, visible, hostile, notorious and exclusive, continuous and exclusive [sic] possession under a claim of ownership until at least January 1, 1972. Plaintiff’s evidence does not support his claim of adverse possession.”

On appeal from this judgment, the plaintiff contends that the court erred in holding that he could not obtain ownership by adverse possession based upon his possession of the disputed property during his minority. The plaintiff asserts that his acts of ownership, including maintenance of the fence and use of the property by his father and him for farming, storage and dumping purposes, established the elements of adverse possession. The plaintiff further asserts that he is entitled to “tack” onto his father’s possession of the disputed property if necessary to meet the required time period and that, in any event, there was sufficient evidence of his possession of the disputed property for 20 years after he had attained his majority to sustain his claim of ownership by adverse possession.

We note preliminarily that we are aware of no Illinois case that addresses the issue of whether a minor can obtain ownership of property by adverse possession. While the limitations statute pertaining to recovery of lands (Ill. Rev. Stat. 1983, ch. 110, par. 13 — 101 et seq., formerly Ill. Rev. Stat. 1979, ch. 83, par. 1 et seq.) contains an exception as to the running of the statute against a minor (Ill. Rev. Stat. 1983, ch. 110, par. 13 — 112, formerly Ill. Rev. Stat. 1979, ch. 83, par. 9), it is silent regarding the minority of one seeking to obtain title by adverse possession. The law is well settled, however, that title to property may be established by 20 years’ possession that is (1) continuous, (2) hostile or adverse, (3) actual, (4) open, notorious and exclusive, and (5) under claim of title inconsistent with that of the true owner. (Joiner v. Janssen (1981), 85 Ill. 2d 74, 421 N.E.2d 170; Martin v. My Farm, Inc. (1983), 111 Ill. App. 3d 1097, 445 N.E.2d 44.) Thus, unless such possession is affected by the minor’s legal disability of infancy, it would appear that a minor could obtain title by adverse possession as well as another who had established the requisite elements.

The legal disability of infancy under which a minor may, among other things, avoid contracts made during his minority, is really a privilege that the law gives to be exercised for the minor’s benefit (43 C.J.S. Infants sec. 108, at 370-71 (1978)), the object being to protect minors from the inexperience and improvidence of youth (Old Mutual Casualty Co. v. Clark (1977), 53 Ill. App. 3d 274, 368 N.E.2d 702; Fuller v. Pool (1930), 258 Ill. App. 513). The limits on the legal capacity of minors to act on their own behalf were not established, however, to defeat enforcement of their rights, and, although infancy protects a party from the consequences of many of his acts, no one else may take advantage of that infancy. (See 43 C.J.S. Infants sec. 108, at 371 (1978); Ballard v. Buist (1959), 8 Utah 2d 308, 333 P.2d 1071.) Thus, while a minor may avoid certain obligations entered into during his minority those with whom he deals are liable as though he were an adult and cannot set up his disability as a defense. Cf. Field v. Herrick (1881), 101 Ill. 110 (adult lessor cannot defeat lease or be relieved of its obligation by reason of infant lessee’s disability); see generally Wood, Validity of Transactions with Minors and Incompetents, 1951 U. Ill. L. F. 212 (hereinafter Wood, Transactions with Minors).

Notwithstanding the protection afforded a minor by the legal disability of infancy, he is not precluded thereby from acquiring and owning real property, and he may obtain and dispose of such property in the same manner as an adult, subject, of course, to the minor’s right of avoidance. (Wood, Transactions with Minors, at 215-16; 43 C.J.S. Infants secs. 126-145 (1978); 27 Ill. L. & Prac. Minors secs. 31-34 (1956).) Since the minor’s legal disability, by its nature and purpose, does not affect his capacity otherwise to enjoy and exercise real property rights, it follows that his minority would not affect the adverse character of his possession of real property and that a minor could, therefore, acquire title by adverse possession in the same manner as an adult. See Wood, Transactions with Minors, at 216; 2 C.J.S. Adverse Possession sec. 21, at 672 (1972).

While authority regarding the adverse possession of property by a minor is scant and of an early vintage, courts in other jurisdictions have similarly held that a minor is not foreclosed from acquiring property by adverse possession where the required elements have been properly established. In R.W. Wier Lumber Co. v. Conn (Tex. Civ. App. 1913), 156 S.W. 276, the court held that possession of land by two sons, one of whom was a minor, was sufficient to vest them with title by adverse possession, even though both sons were then living with their father on other property. The court noted in this regard that “[the minor son’s] right to acquire this tract was recognized by his father.” (56 S.W. 276, 279.) In another case, Houston Oil Co. v. Griffin (Tex. Civ. App. 1914), 166 S.W. 902, the minor defendant claimed title by adverse possession of property occupied “as his own *** with the consent of his father, who at no time asserted any claim to the land.” (166 S.W. 902, 904.) The court stated that, under these circumstances, the minor “[could] not be regarded as holding possession for or under his father, and we cannot believe that his minority affect[ed] the adverse character of his claim and possession.” (166 S.W. 902, 904.) The court continued:

“The consent of the father to the acquisition by [the minor son] of the land for himself by occupying and cultivating it had the effect of emancipating [the minor son] in so far as his right to acquire the land was concerned.” (166 S.W. 902, 904.)

(See also Petty v. Griffin (Tex. Civ. App. 1922), 241 S.W. 252.) Further cases to this effect are Woodruff v. Roysden (1900), 105 Term. 491, 58 S.W. 1066, where the minor defendant, who had occupied property with his father under claim of title for seven years, was held-to have acquired title by adverse possession even though he was a minor, and Riley v. Jameson (1823), 3 N.H. 23, where the defendant, who had entered upon land when he was a minor 14 years of age, was presumed to have taken possession of the property in his own right despite the fact that he was living at the time in his mother’s family.

Because of our conclusion that a minor can acquire title by adverse possession in the same manner as an adult, we believe that the trial court erred in holding as a matter of law that the plaintiff could not obtain title to the instant property by adverse possession during his minority. From a consideration of the record on appeal, however, we find that the plaintiff here failed to show sufficient facts to establish his possession of the disputed property for the required amount of time. The plaintiff’s claim of adverse possession from 1939 until the 1950’s rested upon his father’s use of the property for keeping hogs and cattle. Unlike in Houston Oil Co. v. Griffin and R.W. Wier Lumber Co. v. Conn, where the cultivation and use by the minor claimants of the property in question was separate from any claim to or use of the property by their fathers, there was no showing here that the plaintiff exercised any acts of ownership over the property on his own behalf. Moreover, while the plaintiff’s claim of ownership by adverse possession could not depend upon his father’s possession of the disputed property, there was evidence that even his father’s use was by permission and acquiescence of the owner.

The plaintiff’s other alleged acts of dominion over the disputed property “after the fifties” — storing equipment and scrap lumber and dumping trash — were, by the plaintiff’s own testimony, “intermittent,” and the dumping and storage occurred “primarily near the Deatherage residence,” which was separated from the disputed property by the 75-foot strip of ground. Thus, evidence of the plaintiff’s own use of the property was indefinite and failed to show unequivocal acts of ownership necessary to a claim of adverse possession. (See 1 Ill. L. & Prac. Adverse Possession sec. 13 (1953).) Further, while the plaintiff relies upon Patient v. Stief (1977), 49 Ill. App. 3d 99, 363 N.E.2d 927, and Ewald v. Horenberger (1976), 37 Ill. App. 3d 348, 345 N.E.2d 524, to assert that the fence along the north edge of the disputed property constituted notice of his occupancy for purposes of adverse possession, those cases are distinguishable in that both involved a fence as boundary line between two adjoining landowners. In the instant case the plaintiff owned no property on either side of the fence before 1967, and the fence, therefore, could not be said to have provided notice of the plaintiff’s occupancy of the disputed strip extending to the fence. Indeed, it is significant that, while possession of the disputed property extending from his father’s land over to the fence would necessarily have included the 75-foot strip lying between the two, the plaintiff did not claim to have acquired the 75-foot strip by adverse possession but, rather, purchased it from Robertson in 1967, thereby forfeiting any claim of adverse possession to the 75-foot strip and, by implication, to the disputed strip as well.

Finding, then, that there was insufficient evidence to sustain the plaintiff’s claim of adverse possession of the disputed property during his minority, we likewise reject his further contention that he could establish the requisite period of possession by “tacking” his own possession to that of his father’s. There was, in the first place, no evidence that the plaintiff’s father ever claimed possession of the disputed property adversely to the owner, and, since the plaintiff’s father conveyed no property to him, there was, additionally, no privity or connection in succession between the plaintiff and his father necessary to establish the continuous possession required for adverse possession. (1 Ill. L. & Prac. Adverse Possession sec. 88 (1953).) As to the plaintiff’s final contention that there was sufficient evidence, in any event, of his possession for 20 years after he had attained his majority to sustain his claim of adverse possession, the trial court specifically found to the contrary, and we see no basis upon which to overturn that finding.

For the reasons expressed in this opinion, we hereby affirm the trial court’s judgment that the plaintiff failed to acquire the disputed property by adverse possession.

Affirmed.

WELCH and EARNS, JJ., concur.


author: JUSTICE WEBBER

text:
      In re TRINA LYNN CROUCH, a Minor (The People of the State of Illinois, Petitioner-Appellee, v. Carla Rogers Malone, Respondent-Appellant).— In re TRACEY MICHELLE CROUCH, a Minor (The People of the State of Illinois, Petitioner-Appellee, v. Carla Rogers Malone, Respondent-Appellant).
    Fourth District
    Nos. 4—84—0632, 4—84—0633 cons.
    Opinion filed March 19, 1985.
    David H. Hoff, of Fruin, Andrews & Hoff, of Paris, for appellant.
    Michael M. McFatridge, State’s Attorney, of Paris (Robert J. Biderman and Michael K. Blazicek, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
    Steven L. Garst, of Ruff & Garst, of Paris, guardian ad litem.

   JUSTICE WEBBER

delivered the opinion of the court:

Following a combined hearing in the circuit court of Edgar County, the parental rights of respondent, Carla Rogers Malone, as to her two daughters were terminated pursuant to sections 1(D) (b) and (m) of “An Act in relation to the adoption of persons, and to repeal an act therein named” (Ill. Rev. Stat. 1983, ch. 40, pars. 1501(D)(b), (m)) and section 5 — 9(2) of the Juvenile Court Act (Ill. Rev. Stat. 1983, ch. 37, par. 705 — 9(2)). Respondent now appeals from all of the orders entered in both cases below claiming that the circuit court failed to properly gain jurisdiction over the persons of her daughters since they have never been served with summons, or notice, as to these proceedings. She also challenges the court’s finding that she is an unfit parent.

On June 23, 1980, respondent turned her daughters, Trina Lynn Crouch and Tracey Michelle Crouch, over to the Department of Children and Family Services (DCFS). She requested that DCFS care for the children until she was on her “feet again.” On June 24, 1980, a petition for adjudication of wardship was filed as to each child. Both petitions named the minor, the mother (respondent herein), and the father (Bobby Crouch) as respondents. Following a hearing on the same day, the circuit court placed both children in the temporary custody of DCFS and scheduled a further hearing for July 10, 1980.

Summons as to the July 10, 1980, hearing on the petitions for adjudication of wardship was directed only to the mother and father. The mother, representatives of DCFS, and the children, in the custody of DCFS, were present at the hearing. Respondent confessed to the petitions, and the court found each child to be neglected and made each a ward of the court. They were placed in the custody and guardianship of the DCFS guardianship administrator. At the time, Trina Lynn Crouch was two years old and Tracey Michelle Crouch was one year old.

Pursuant to a petition for supplemental relief filed on September 29, 1981, the parental rights of the father, Bobby Crouch, were terminated as to each child.

Another petition for supplemental relief was filed on June 28, 1983. Therein it was requested that the court modify its July 10, 1980, order by finding respondent to be an unfit mother and by terminating her parental rights as to each child. A hearing on the supplemental petition was scheduled for January 6, 1984. Although they were included as respondents in the petition, no summons was ever directed to the minors. Nor was summons directed to the guardianship administrator of DCFS.

The circuit court appointed a guardian ad litem for the minors on July 12, 1983. He appeared at the January 6, 1984, hearing, along with the respondent herein, her counsel, and the assistant State’s Attorney. Following testimony by representatives of DCFS, a psychiatrist, and the respondent, the circuit court found that respondent had failed to make a reasonable effort to correct the conditions which were the basis for the removal of her daughters from her custody. The court also found that she had failed to make reasonable progress toward the return of her daughters within 12 months after they were adjudicated neglected and that she had failed to maintain a reasonable degree of interest, concern, or responsibility as to the children’s welfare. She was determined to be an unfit parent pursuant to sections l(D)(b) and (m) of “An Act in relation to the adoption of persons, and to repeal an act therein named” (Ill. Rev. Stat. 1983, ch. 40, pars. 1501(D)(b), (m)). A written order incorporating these findings was filed on March 22, 1984, wherein respondent’s parental rights were terminated as to each child.

Respondent filed her post-trial motion on April 19, 1984. A hearing on the motion was held July 31, 1984. In an order filed on August 14, 1984, respondent’s motion was denied. She subsequently filed timely notice of appeal. Upon the joint motion of the parties, the cases were consolidated for the purposes of this appeal.

On appeal, respondent first contends that all of the orders of the circuit court in both cases below are void because the minors involved were not given proper notice of the proceedings. Hence, she claims, the circuit court lacked personal jurisdiction over them and its orders should be vacated.

Section 4 — 3(1) of the Juvenile Court Act mandates that a summons, with a copy of the petition attached, shall be directed to the minor and each person named as a respondent in a petition filed pursuant to section 4 — 1 of the Juvenile Court Act (Ill. Rev. Stat. 1983, ch. 37, pars. 704 — 1, 704 — 3(1)). It is undisputed that no summons was ever served on either minor here, nor was any summons directed to the guardianship administrator of DCFS. Respondent claims that this statutory violation resulted in a failure to obtain jurisdiction over the minors and served to void all of the circuit court’s orders.

In support of this contention respondent relies on the recent decision of our supreme court in People v. R.S. (1984), 104 Ill. 2d 1, 470 N.E.2d 297. There, the court held that the failure to notify a necessary respondent in a juvenile proceeding results in a failure to properly invoke the circuit court’s jurisdiction and renders its orders void. (See also People v. R.D.S. (1983), 94 Ill. 2d 77, 445 N.E.2d 293.) Respondent argues that this clear language applies to the present juvenile proceeding also.

It is clear that the minors here were not properly notified pursuant to the requirements of the Juvenile Court Act. Indeed, the State does not argue that proper notice was given here. However, the State contends that respondent does not have standing to assert this error and she has waived the contention due to her lack of diligence below. The State further claims that notice to these minors, because of their age, would have been impractical and that their interests were adequately represented in any event.

Initially, we do not believe that the waiver rule should be applied in this case. Respondent argued that the court lacked jurisdiction over the minors due to the lack of notice at the July 31, 1984, hearing on her post-trial motion. The circuit court considered and rejected the argument at that time. Therefore, the issue was brought to the circuit court’s attention. Furthermore, a petition attacking a judgment as void may be brought at any time, either in a direct or collateral proceeding. In re Marriage of Parks (1984), 122 Ill. App. 3d 905, 461 N.E.2d 681; Augsburg v. Frank’s Car Wash, Inc. (1982), 103 Ill. App. 3d 329, 431 N.E.2d 58.

Next, we believe that respondent does have standing to allege the statutory violation and lack of jurisdiction. Standing contemplates a personal stake in the outcome of a controversy or the adjudication of an issue. (Weihl v. Dixon (1977), 56 Ill. App. 3d 251, 371 N.E.2d 881.) Here, due to the nature of the juvenile proceedings and the termination of her parental rights, respondent has standing to argue that her daughters did not receive the required notice as to these proceedings. Indeed, noncompliance with the notice provisions of this Act has been held to violate the right of parent and child to due process. People v. R.S. (1984), 104 Ill. 2d 1, 470 N.E.2d 297; In re J.W. (1981), 87 Ill. 2d 56, 429 N.E.2d 501.

We do not believe, nor does the statute suggest, that the notice provisions of the Juvenile Court Act are mandatory only when practical. Rather, “[njotice to all required by the Act is mandatory.” (In re J.W.M. (1984), 123 Ill. App. 3d 1036, 1037, 463 N.E.2d 1023, 1024.) The provisions are applicable regardless of the age of the minor. Likewise, the contention that the minor’s interests here were adequately represented by others is based upon speculation and does not fulfill the statutory notice requirement.

The supreme court has expressly held that the failure to notify a known respondent in a juvenile proceeding results in the failure to properly invoke the circuit court’s jurisdiction. (People v. R.S. (1984), 104 Ill. 2d 1, 470 N.E.2d 297; People v. R.D.S. (1983), 94 Ill. 2d 77, 445 N.E.2d 293.) The State does not contend that notification was given to the minors here. Therefore, the circuit court did not have jurisdiction over the persons of the minors. Similarly, as articulated by Justice Goldenhersh in his special concurrences in People v. R.S. (1984), 104 Ill. 2d 1, 470 N.E.2d 297, and People v. R.D.S. (1983), 94 Ill. 2d 77, 445 N.E.2d 293, the orders entered by the circuit court were in violation of the statutory provisions and were erroneous for that reason alone. Accordingly, the orders entered by the circuit court in these juvenile proceedings must be reversed.

We note that the supreme court, in R.S., stated that, where notice is not given, the orders entered by the circuit court are void. This would appear to suggest that subject-matter jurisdiction was lacking. However, the case was remanded to the circuit court for further proceedings, indicating that the circuit court did have subject-matter jurisdiction and that its orders were merely voidable as lacking in personal jurisdiction over the parties. (See In re L.E.J. (1983), 115 Ill. App. 3d 993, 451 N.E.2d 289.) Likewise, the circuit court’s orders here were voidable in that personal jurisdiction was not established.

Since the circuit court’s orders must be reversed for the above reasons, we need not consider respondent’s alternate contentions.

For all the foregoing reasons, the judgment of the circuit court of Edgar County is reversed and the cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

MILLS and McCULLOUGH, JJ., concur.


author: PRESIDING JUSTICE GREEN

text:
    PEARSON BROTHERS COMPANY, INC., Third-Party Plaintiff-Appellant, v. STEPHEN ALLEN, Third-Party Defendant-Appellee (VCV Engineering & Supply, Inc., Third-Party Plaintiff).
    Fourth District
    No. 4—84—0680
    Opinion filed March 21, 1985.
    Heyl, Royster, Voelker & Allen, of Springfield (Gary L. Borah, of counsel), for appellant.
    James J. Elson, Chartered, of Canton (James J. Elson and Walter D. Barra, of counsel), for appellee.
   PRESIDING JUSTICE GREEN

delivered the opinion of the court:

This case concerns the application of section 2(e) of “An Act in relation to contribution among joint tortfeasors” (the Act). It states:

“A tortfeasor who settles with a claimant pursuant to paragraph (c) is not entitled to recover contribution from another tortfeasor whose liability is not extinguished by the settlement.” (111. Rev. Stat. 1983, ch. 70, par. 302(e).) '

Paragraph (c) of section 2 of the Act (Ill. Rev. Stat. 1983, ch. 70, par. 302(c)) requires that any such settlement be in good faith. Only those persons or entities specifically designated in such an instrument are released thereby. (Alsup v. Firestone Tire & Rubber Co. (1984), 101 Ill. 2d 196, 461 N.E.2d 361.) Here, an alleged tortfeasor who has settled with the estate of the injured party contends that, despite the express language of section 2(e), the tortfeasor is not barred from obtaining contribution from an alleged joint tortfeasor who was not specifically named in the release instrument and whose liability was not extinguished by the settlement. We reject the contention and hold that no right of contribution exists.

The case began when Evelyn Allen, executor of the estate of Gerald C. Allen, deceased, brought suit against Pearson Brothers Company, Inc. (Pearson Brothers), and VCV Engineering & Supply, Inc. (VCV), in the circuit court of Menard County. The complaint alleged that Gerald Allen’s death on January 23, 1980, occurred when he allegedly became entangled in the power takeoff shaft of a farm implement manufactured by Pearson Brothers and distributed by VCV. The suit was both a survival action and a wrongful death action. Stephen Allen, the owner of the implement, was not sued by the estate of Gerald Allen.

Ultimately, both Pearson Brothers and VCV brought third-party contribution actions against Stephen Allen. The Pearson Brothers’ suit was filed April 4, 1984. The trial court severed the contribution actions from the underlying case. On May 4, 1984, which was after the effective date of Alsup, the underlying case was settled. In exchange for the payment of $14,250 by Pearson Brothers to plaintiff, the latter executed a document of that date which released Pearson Brothers and VCV and purported to also release “any and all other persons and entities” from liability arising from the occurrence in question. On August 20, 1984, the trial court allowed Stephen Allen’s motion to dismiss the complaints against him for contribution. Pearson Brothers, who paid consideration for the release from plaintiff, has appealed. VCV, which had given no consideration for the release, has not appealed.

The trial court’s decision was based upon reasoning that (1) under the holding in Alsup, the failure of the settlement document to specially name Stephen Allen as a person to whom the release ran prevented him from being a person whose liability to plaintiff was thereby released, and (2) accordingly, the lack of release of that liability prevented Stephen Allen from being a person against whom Pearson Brothers could seek contribution under section 2(e). We agree and affirm.

The major thrust of Pearson Brothers’ argument is that we should give an equitable rather than literal interpretation to section 2(e) in order to do justice between the parties. It notes that the Act was based upon similar legislation in other States (Alswp v. Firestone Tire & Rubber Co. (1984), 101 Ill. 2d 196, 461 N.E.2d 361) and asks us to give consideration to interpretations given by other States, particularly interpretations made before the Act was enacted in 1978. Our attention is called to Mong v. Hershberger (1962), 200 Pa. Super. 68, 186 A.2d 427, where, under similar legislation, a tortfeasor who, by settlement, had partially relieved the liability of a joint tortfeasor was permitted to obtain contribution from that tortfeasor despite the existence of a provision very similar to section 2(e). Such an interpretation was deemed to be the controlling law of Pennsylvania in Castillo v. Roger Construction Co. (3d Cir. 1977), 560 F.2d 1146.

Pearson Brothers argues that the purpose of section 2(e) is to prevent a tortfeasor who is still subject to liability to an injured party from having to make contribution to a joint tortfeasor who has settled with the injured party. Here, Stephen Allen was not a party to the underlying litigation. Pearson Brothers asserts that during the course of the litigation and before settlement, the statute of limitations ran on plaintiff’s claims against Stephen Allen. Accordingly, Pearson Brothers contends that Stephen Allen could only be liable for contribution and, if his tortious conduct was a proximate cause of the death and injury, Stephen Allen should be liable to pay fair contribution. We cannot ascertain from the record whether Stephen Allen has tolled the running of the statutory periods limiting action against him, but for reasons subsequently stated, we do not consider that factor to be determinative.

We reject the contention that we should not interpret section 2(e) to mean what it clearly states, i.e., that a tortfeasor “who settles with a claimant *** is not entitled to contribution from another tortfeasor whose liability is not extinguished by the settlement.” (Emphasis added.) (See Western National Bank v. Village of Kildeer (1960), 19 Ill. 2d 342, 167 N.E.2d 169.) Section 2 presents a comprehensive scheme. Section 2(a) provides for rights to contribution except as otherwise provided in the Act. Section 2(b) limits recovery of contribution to a pro rata share and places a similar limit on the liability to make contributions. Section 2(c) requires a release to be given in good faith and states that release of one tortfeasor does not release others not listed but does reduce the recovery obtainable from others by the amount paid for the release. Section (d) provides that the tortfeasor who settles in good faith is immune from liability for contribution. Section (f) concerns certain rights of subrogation. To give each provision a loose interpretation which appears to meet the equity of the situation could well destroy the symmetry of the scheme.

An obvious purpose of the Act is to reduce the amount of litigation. A limitation on the right to obtain contribution ought to reduce the amount of litigation. The situation where the statute of limitations runs on a joint tortfeasor or where a plaintiff chooses not to sue such a person is a rather rare occasion. We do not choose to torture the language of section 2(e) to permit the seeking of contribution here even though it might seem fair to do so. To disregard the limitation of section 2(e) each time it might seem fair to do so would cause intolerable confusion.

Pearson Brothers also claim that Stephen Allen was a person released by the settlement. They contend that the holding of Alswp, that under section 3(c) of the Act only those specifically named in the settlement document are released thereby, is applicable only to cases where the release is sought to bar action against other parties to the litigation. It contends that the “any and all persons” provision of the document was sufficient to release Stephen Allen. We disagree. We find nothing in Alsup to support such a contention, and the decision in Trexler v. Hubbard (1983), 118 Ill. App. 3d 697, 455 N.E.2d 274, cited in support of the contention was subsequently reversed. Trexler v. Chrysler Corp. (1984), 104 Ill. 2d 26, 470 N.E.2d 300.

We affirm the dismissal of the claim for contribution by Pearson Brothers against Stephen Allen.

Affirmed.

WEBBER and McCULLOUGH, JJ., concur.


author: JUSTICE TRAPP

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JONATHAN C. TARTER, Defendant-Appellant.
    Fourth District
    No. 4—84—0544
    Opinion filed March 21, 1985.
    Daniel D. Yuhas, of State Appellate Defender’s Office, of Springfield, for appellant.
    Thomas J. Difanis, State’s Attorney, of Urbana (Robert J. Biderman, of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE TRAPP

delivered the opinion of the court:

On January 19, 1984, defendant Jonathan Tarter pleaded guilty to a charge of driving with a suspended license, and he was sentenced to a six-month period of conditional discharge, conditioned upon his payment of costs and a $200 fine. Defendant stipulated to the allegations of a petition to revoke his conditional discharge on June 14, 1984. The circuit court accepted defendant’s admission, revoked his conditional discharge, and sentenced him to 14 days’ incarceration. On appeal, defendant contends that he is entitled to credit for time served on conditional discharge.

Upon appeal it is urged by defendant that since the circuit court failed to mention whether the time served on conditional discharge should be credited against his sentence of imprisonment, he is automatically entitled to such credit. Section 5 — 6—4(h) of the Unified Code of Corrections (Ill. Rev. Stat. 1983, ch. 38, par. 1005 — 6—4(h)) provides:

“Resentencing after revocation of probation, conditional discharge or supervision shall be under Article 4. Time served on probation, conditional discharge or supervision shall be credited by the court against a sentence of imprisonment or periodic imprisonment unless the court orders otherwise.”

The prosecution urges that the statement of the court made in imposing sentence clearly indicates that it did, in fact, effectively deny such credit. The colloquy of the trial court includes:

“[I]f there’s one thing that Mr. Tarter has to learn and, more importantly, people that come before this Court must be made aware of, even if it is at Mr. Tarter’s expense, so to speak, is that when you receive conditional discharge from this Court that is, in and of itself, a privilege to be treasured not to be betrayed and violated as was done here by Mr. Tarter in a period of less than a month. The fact is, Mr. Tarter, I have no sympathy for you because it’s a self inflicted wound.
* * * It took you less than thirty days to violate the trust of this Court the last time it was reposed in you. And, Mr. Tarter, I will not again make that same mistake. You now have the burden of earning the trust, not only of this Court, but of the Secretary of State’s Office. Until you do that, you’re not going to receive it.
So, the Court having considered the nature and circumstances of this offense, the character, history and condition of the Defendant, his past record of law violations, hereby finds that a period of conditional discharge, court supervision or probation would unduly deprecate the seriousness of this offense, would be inconsistent with the^ends of justice and would be inadequate to protect the community from further conduct of this nature by the Defendant.
It is therefore the sentence of this Court that the Defendant be incarcerated in the Champaign County Correctional Center for a period of fourteen days from today’s date. He is further ordered to pay the cost of this proceeding. He is remanded to the custody of the Sheriff for commencement and service of sentence.”

The written order of imprisonment specifically directed that defendant would begin serving a 14-day jail term at 3:30 p.m. on July 11, 1984.

Following the imposition of sentence, defendant filed a motion to withdraw his guilty plea, or in the alternative, to reconsider the sentence as excessive. Timely appeal followed.

Although this court in People v. Brogan (1979), 76 Ill. App. 3d 957, 395 N.E.2d 408, had determined in 1979 that upon revocation of probation, credit for time served in custody would not support an inference of denial of credit for time served on probation, we find that the issue here is controlled by the opinion in People v. Hollingsworth (1982), 89 Ill. 2d 466, 433 N.E.2d 682.

In Hollingsworth, the trial court revoked probation and imposed imprisonment with credit for time spent in jail but with no reference to credit for time spent on probation. The appellate court (People v. Hollingsworth (1981), 93 Ill. App. 3d 416, 417 N.E.2d 175) considered the colloquy of the trial court at the time of imposition of sentence, which was closely comparable to that found here, and concluded that the trial court had implicitly denied credit for time served on probation. That court expressly rejected the opinion in Brogan.

The supreme court reversed the judgment of the appellate court insofar as it denied credit for time served on probation. The rationale of the ruling is most succinctly expressed in the language of the opinion.

“We see no reason to depart from the rule laid down in Hills [78 Ill. 2d 500, 401 N.E.2d 523]. Appeals are not designed to decide what a judgment means, as opposed to whether it is erroneous, and yet that is what the State’s theory requires reviewing courts to do. Still less should a sentence depend on a prison warden’s personal interpretation of what the judge must have really meant. Because according to Hills the sentencing court cannot later clarify its own order so as to deny a defendant credit, the initial judgment must be unambiguous. If the court decides to deny credit for probation time, it should say so; the point should not be left to inference or interpretation. If the court does not expressly deny credit, the defendant is entitled to it under section 5 — 6—4(h) of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 6—4(h)), which contemplates that credit will usually be allowed. The proper administration of justice requires a rule that will make it unnecessary for anyone to try to figure out what the sentencing judge had in mind where he could have properly either granted or denied credit. We reverse the appellate court because the circuit court’s sentence was ambiguous; the appellate court erroneously read into it a meaning that may or may not have been intended.” (Emphasis added.) People v. Hollingsworth (1982), 89 Ill. 2d 466, 468, 433 N.E.2d 682, 683-84.

The consequences of applying the rule here prove most lugubrious, but to conclude otherwise would require this court to reach by inference that which, in fact, the trial court did not state and otherwise would have “to decide what a judgment means.” People v. Hollingsworth (1982), 89 Ill. 2d 466, 468, 433 N.E.2d 682, 683.

As in Hollingsworth, the circuit court’s judgment is interpreted as allowing the defendant credit against his sentence for time served on conditional release and, as so interpreted, is affirmed. The cause is remanded to the circuit court with directions to ascertain the correct amount of time served on conditional release and to issue a corrected mittimus allowing credit for the time served on conditional release.

The judgment of the circuit court is affirmed. The cause is remanded with directions.

GREEN, P.J., and McCULLOUGH, J., concur.