author: JUSTICE HOPF

text:
    ROBERT G. DOUGLASS, JR., et al., Plaintiffs-Appellants, v. EDWARD WONES et al., Defendants-Appellees—(Michael S. Douglas et al., Defendants).
    Second District
    No. 82—826
    Opinion filed December 12, 1983.

      Reuben A. Bernick, Howard C. Emmerman, and Mark P. Seidler, all of Rudnick & Wolfe, of Chicago, for appellants.
    John L. Hines, Jr., of Schwartz, Cooper, Kolb & Gaynor, David F. Holland, and Eric A. Oesterle and Robert H. Oakley, both of Sonneschein, Carlin, Nath & Rosenthal, all of Chicago, Brydges, Riseborough, Morris, Franke & Miller, and Conzelman, Schultz, Snarski & Mullen, both of Wauke-gan, for appellees.
   JUSTICE HOPF

delivered the opinion of the court:

Plaintiffs Robert Douglass, Jr. (Douglass), and Robert Douglass Development Company (Douglass Development) appeal from an order of the circuit court of Lake County dismissing with prejudice certain counts of their amended complaint against defendants Edward and Gwendolyn Wones (Wones es), Glenview Guaranty Savings and Loan Association (Glenview), First National Bank of Highland Park (First National), and the Citizens National Bank (Citizens) for failing to state a cause of action.

This action arose from a bad-check scheme which was perpetrated on plaintiffs by defendant Michael S. Douglas, who is unrelated to plaintiff Douglass and who is not a party to this appeal. The following facts were alleged in both the original and amended complaints as facts in common to all the dismissed counts.

On September 18, 1980, Michael Douglas requested and received from plaintiffs three checks drawn by Douglass on the in-State account of Douglass Development and payable to the following payees in the following amounts: R.C.G. Construction $3,100, Michael S. Douglas $1,000, and J.C.T. Consultants $30,000. In return Douglas gave plaintiff Douglass an out-of-State check totaling $34,100 made payable to Douglass Development, which plaintiff Douglass deposited. These checks are not involved in the instant appeal.

On September 23, 1980, a similar transaction occurred. On that date defendant Douglas again requested and received from plaintiff Douglass the following three checks drawn on Douglass Development’s in-State account: $5,000 to Glenview, $6,600 to First National and $54,000 to Citizens. In exchange, Michael Douglas gave Douglass another out-of-State check for $65,600 made payable to Douglass Development, which Douglass deposited.

On each of these two occasions, defendant Douglas represented to plaintiffs that his two checks payable to Douglass Development represented good funds. Plaintiffs issued their checks in reliance upon Douglas’ representations. All of the checks drawn by Douglass were paid to the payees named thereon. Defendant Douglas’ two checks payable to Douglass Development were returned for insufficient funds.

In 1981 Michael S. Douglas pleaded guilty to criminal charges of theft by deception and deceptive practices based upon the foregoing facts. Plaintiffs’ original complaint was based upon various theories of liability. As against the Woneses, the complaint proceeded on theories of conversion, conspiracy to defraud, and unjust enrichment. As against the three payee bank defendants, it proceeded on theories of conversion, rescission of negotiation and unjust enrichment. As against all of these defendants, plaintiffs alleged, in addition to the common facts, that “on information and belief *** [each defendant] knew or had reason to know that Douglass had been fraudulently induced by defendant Michael S. Douglas ***” to draw the checks. The original complaint contained no other facts in support of the allegation of knowledge.

Glenview responded to the original complaint by filing a demand for a bill of particulars, requesting that plaintiffs set forth the facts communicated to Glenview, along with the pertinent dates, from which it knew or had reason to know of the alleged fraudulent inducement. The request was granted by the trial court. However, rather than filing a bill of particulars, plaintiffs filed an amended complaint, realleging the facts- in common and also alleging that Glenview, First National, and Citizens had no business or other relationship with plaintiff Douglass and that, “[accordingly, [each defendant] knew or had reason to know that it had no right or authority to obtain payment ***.” The amended complaint also alleged that each of the payee defendants had a duty to inquire whether Douglass had been fraudulently induced to draw the check. In addition, plaintiffs alleged that Citizens and the Woneses knew of the fraud because the check was delivered to them in payment of another bad check of Michael Douglas which had previously been guaranteed by the Woneses and cashed by Citizens.

Defendants involved in this appeal each filed motions to dismiss alleging that the amended complaint consisted of conclusions and not statements of fact as required by section 33 of the Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, par. 33, now codified at Ill. Rev. Stat. 1981, ch. 110, par. 2 — 603). Additionally, Glenview's motion to dismiss, as well as a motion for summary judgment filed by First National, alleged that Glenview and First National were holders in due course which took the checks free of any defenses against them. The affidavits of two bank officers were attached to First National’s motion for summary judgment. In the affidavits the officers alleged that they were aware that Michael Douglas had overdrawn an account, but they had no knowledge of the circumstances surrounding the issuance of the replacement check. The motions to dismiss were all granted. First National’s motion for summary judgment was not ruled upon. No motion for leave to amend was filed by plaintiffs.

We first consider whether the trial court erred in dismissing the amended complaint against the Woneses for failure to state causes of action in conversion, conspiracy to defraud, and unjust enrichment. The Woneses maintain that because the complaint was based upon information and belief, it failed to place in issue the ultimate facts required to sustain the causes of action and placed in issue instead plaintiffs’ beliefs regarding the Wones’ knowledge of the fraudulent inducement. They also argue that the complaint contained a series of legal conclusions which are insufficient to state a cause of action against them.

In determining the sufficiency of the complaint, only those facts well pleaded, and not conclusions, are taken as true. (Mlade v. Finley (1983), 112 Ill. App. 3d 914, 918, 445 N.E.2d 1240; Knox College v. Celotex Corp. (1981), 88 Ill. 2d 407, 426-27, 430 N.E.2d 976.) Thus, in considering a motion to dismiss, the court must delete the conclusions of law or fact which are unsupported by allegations of specific facts on which the conclusions rest. (Knox.) If, after these deletions, there are not sufficient allegations of fact which state a cause of action against the defendant, the motion must be granted regardless of how many conclusions the count may contain and regardless of whether they inform the defendant in a general way of the nature of the claim against him. (88 Ill. 2d 407, 426, 430 N.E.2d 976.) A complaint should not be dismissed unless it clearly appears that no set of facts can be proved which will justify recovery. (City of North Chicago v. North Chicago News, Inc. (1982), 106 Ill. App. 3d 587, 435 N.E.2d 887.) However, when the trial court strikes a complaint and the plaintiff does not ask for leave to amend, the lawsuit stands or falls upon the contents of the stricken pleading. Mlade; Krachock v. Department of Revenue (1949), 403 Ill. 148, 153, 85 N.E.2d 682.

Count I of plaintiffs’ amended complaint against the Woneses proceeded upon the theory of conversion and alleged, in addition to the common facts, that Michael Douglas delivered to the Woneses the check made payable to Citizens; that the Woneses delivered the check to Citizens with instructions to credit the proceeds to an indebtedness owed to Citizens by the Woneses; that the Wones’ indebtedness arose out of their guarantee of payment of an earlier check of Douglas’ which was cashed by Citizens but was returned unpaid because of insufficient funds; that “on information and belief,” Douglas obtained the Wones’ guarantee by means of untrue and fraudulent misrepresentations that the earlier check was covered by sufficient funds; that the Woneses became aware of Douglas’ misrepresentations when the earlier check was returned unpaid; that “upon information and belief,” the Woneses knew or had reason to know that plaintiff Douglass had been fraudulently induced by Douglas to draw the check and therefore that their instructions to Citizens were wrongful and unauthorized; that, alternatively, they had a duty to inquire whether Douglass had been fraudulently induced; that the Woneses converted the check to their own use; that they refused to return the proceeds despite plaintiffs’ demand; and, that plaintiffs were damaged in the amount of $54,000.

To state a cause of action in conversion, a plaintiff must allege: an unauthorized and wrongful assumption of control; dominion or ownership by a person over the personalty of another; his right in the property; his right to the immediate possession of the property, absolute and unconditional; and, a demand for possession of the property. (Farns Associates, Inc. v. Sternback (1979), 77 Ill. App. 3d 249, 252, 395 N.E.2d 1103.) Relief in an action for conversion may be had without establishing malice, culpability or conscious wrongdoing. (Landfield Finance Co. v. Feinerman (1972), 3 Ill. App. 3d 487, 490, 279 N.E.2d 30.) Thus, knowledge is not an element of the cause of action. (3 Ill. App. 3d 487, 490, 279 N.E.2d 30.) It is generally held that one cannot purchase and acquire a good title to stolen property, and where personal property is wrongfully taken from the owner, the owner has the right to retake possession whenever and wherever the property may be found. (Hobson’s Truck Sales, Inc. v. Carroll Trucking, Inc. (1971), 2 Ill. App. 3d 978, 276 N.E.2d 89; Harris v. Lipman (1918), 212 Ill. App. 499; Baldwin v. Smith (1908), 143 Ill. App. 56.) An exception to this general rule exists where the property taken is a negotiable instrument. Under these circumstances, if the instrument is taken by a holder in due course of business, then the holder takes the instrument free of all claims against it. (Ill. Rev. Stat. 1979, ch. 26, par. 3 — 305(1).) The language “all claims” under the Uniform Commercial Code includes not only claims of legal title, but also all liens, equities or claims of any other kind. (Ill. Ann. Stat., ch. 26, par. 3— 305, Uniform Commercial Code Comment, at 183 (Smith-Hurd 1963).) Unless one has the rights of a holder in due course he takes the instrument subject to all valid claims and defenses to it on the part of any party. Ill. Rev. Stat. 1979, ch. 26, par. 3 — 306(a).

In light of the foregoing authorities, we believe plaintiffs’ amended complaint adequately states a cause of action in conversion against the Woneses. The complaint alleges an unauthorized and wrongful assumption of control by the Woneses which was demonstrated by their taking of a check from defendant Douglas which was fraudulently obtained. The Wones’ dominion over the check and its proceeds was pleaded and supported by the factual allegation that the Woneses directed Citizens to credit the proceeds to the Wones’ indebtedness to Citizens. The pleadings also contained the allegation that plaintiff Douglass had an immediate right to the property based upon the fact that the property was fraudulently obtained from him. The perpetrator of the fraud was convicted of deceptive practices and theft by deception on the basis of his fraudulent inducement. Further, the drawer is the owner of a check until it is received by the payee, so that as between plaintiff and the Woneses, plaintiff was entitled to possession. (First National Bank v. Pease (1897), 168 Ill. 40, 42, 48 N.E. 160.) Finally, plaintiffs alleged that a demand was made for the proceeds, which demand was refused by the Woneses. These facts, if proved, are sufficient to establish a conversion of the check and its proceeds by the Woneses.

The Woneses do not claim, nor could they claim, that they are entitled to the protections afforded to holders in due course under the Uniform Commercial Code. (Ill. Rev. Stat. 1979, ch. 26, par. 3 — 305.) A “holder” under the Code is defined as one who has possession of an instrument issued or indorsed to him or to his order or to bearer or in blank. (Ill. Rev. Stat. 1979, ch. 26, par. 1 — 201(20).) Here, the check which was alleged to have been given to the Woneses by defendant Douglas was payable to the order of Citizens and not the Woneses. Thus, the Woneses took the check at their risk subject to the plaintiffs’ claims against it. Ill. Rev. Stat. 1979, ch. 26, par. 3 — 306.

Similarly, the Wones’ argument that the complaint is insufficient to place in issue the ultimate facts necessary to establish a conversion is without merit. The argument is based upon the legal principle that an allegation based “upon information and belief” puts in issue only the pleader’s belief and not the ultimate facts of the case. (See Fooden v. Board of Governors (1971), 48 Ill. 2d 580, 588, 272 N.E.2d 497, cert, denied (1972), 408 U.S. 943, 33 L. Ed. 2d 766, 92 S. Ct. 2847; Whitley v. Frazier (1961), 21 Ill. 2d 292, 294, 171 N.E.2d 644; Rezek v. Fishman (1950), 340 Ill. App. 638, 92 N.E.2d 359 (abstract); People v. Blair (1898), 82 Ill. App. 570, 583; but see Stanley Magic-Door, Inc. v. City of Chicago (1979), 74 Ill. App. 3d 595, 598, 393 N.E.2d 535, holding that a verified complaint is not insufficient if it is based merely on information and belief.) Without deciding this issue, we find it irrelevant as it relates to plaintiffs’ conversion count. The only allegations in count I which were based “upon information and belief” were those tending to establish the Wones’ knowledge of Douglas’ fraudulent misrepresentations to plaintiffs. Since knowledge is not an element of conversion, the allegations based “upon information and belief” in the conversion count were unnecessary to establish the cause of action. (Landfield Finance Co. v. Feinerman (1972), 3 Ill. App. 3d 487, 490, 279 N.E.2d 30.) Because we think plaintiffs’ complaint adequately states a cause of action in conversion against the Woneses, we reverse and remand this portion of the court’s order.

We agree, however, with the trial court’s conclusion that count II of plaintiffs’ amended complaint, alleging a conspiracy to defraud, was insufficient to state a cause of action. Count II alleged, in addition to the facts in common: that Michael Douglas delivered the check payable to Citizens to the Woneses and they thereupon delivered it to Citizens with instructions to credit the proceeds to their indebtedness; that “on information and belief,” the Woneses agreed and conspired with Douglas fraudulently to induce Douglass to draw the check and to use the proceeds to discharge the Wones’ indebtedness to Citizens; that in furtherance of this agreement the Woneses delivered the check to Citizens; and, that the Wones’ actions were intended to injure the plaintiffs, thereby justifying an award of punitive damages.

To state a cause of action for conspiracy, plaintiffs must allege the combination of two or more persons who act in concert to accomplish some criminal or unlawful purpose or a lawful purpose by criminal or unlawful means. (Heller v. Goss (1980), 80 Ill. App. 3d 716, 721, 400 N.E.2d 70.) An allegation of fraud, conspiracy or collusion must show the facts upon which the allegation is based, and not mere conclusions of the pleader. In re Estate of Hansen (1969), 109 Ill. App. 2d 283, 294, 248 N.E.2d 709.

In the present case, the only allegation of an agreement or conspiracy is contained in an unverified complaint based upon information and belief. Such a bare assertion, without more, is insufficient to place in issue the existence of an agreement between Douglas and the Woneses. (Fooden v. Board of Governors (1971), 48 Ill. 2d 580, 588, 272 N.E.2d 497; Whitley v. Frazier (1961), 21 Ill. 2d 292, 294, 171 N.E.2d 644; ef. Stanley Magic-Door, Inc. v. City of Chicago (1979), 74 Ill. App. 3d 595, 598, 393 N.E.2d 535.) Eliminating this allegation, there are no facts alleged which would tend to indicate any knowledge or agreement on the part of the Woneses that plaintiffs’ check was fraudulently obtained. The fact that the check was taken to satisfy an indebtedness arising from the Wones’ previous guarantee of defendant Douglas’ check is insufficient to establish the Wones’ knowledge of the fraud. (See Ill. Rev. Stat. 1979, ch. 26, par. 3 — 304(4)(f).) We therefore conclude that count II was properly dismissed for failing to state a cause of action in conspiracy to defraud.

Count III of the amended complaint against the Woneses alleged unjust enrichment and essentially realleged those facts contained in count I including an allegation that the Woneses were aware that a fraud had been perpetrated upon them when the earlier check was returned unpaid. In addition it alleged that by discharging the Wones’ indebtedness to Citizens, the payment of the check conferred a benefit of $54,000 upon the Woneses for which the Woneses gave no consideration or other value. The allegation of the Wones’ knowledge of the fraudulent inducement was again based upon information and belief.

In an action in equity for unjust enrichment, a complaint on which recovery may be based need only allege that there be unjust retention of a benefit, including money, by one party to the detriment of another party, against the fundamental principles of justice, equity, and good conscience. Kenneke v. First National Bank (1978), 65 Ill. App. 3d 10,12, 382 N.E.2d 309.

Here, plaintiffs’ amended complaint alleged sufficient facts to state an action for unjust enrichment. It alleged a fraudulent inducement by Michael Douglas to issue the check, a delivery of the check to the Woneses, the application of the proceeds of the check to the Wones’ indebtedness to Citizens, and the lack of any value or consideration given by the Woneses to plaintiffs in exchange for the money. It is clear that as guarantors of defendant Douglas’ previous check, the Wones were primarily liable to Citizens and that the subsequent credit reduced their liability, thereby conferring a benefit upon them. (Ill. Rev. Stat. 1979, ch. 26, par. 3 — 416.) The Woneses do not claim to have any legal right to the proceeds of the check, but only argue that where one of two innocent persons must suffer a loss, it must be borne by the one who could have prevented it. (National Premium Budget Plan Corp. v. LaSalle Casualty Co. (1967), 81 Ill. App. 2d 466, 225 N.E.2d 400.) However, the question of whether the Woneses and the plaintiffs were equally innocent parties is a question of fact which cannot be resolved on the basis of the pleadings here.

Next, we consider whether counts XII through XX of plaintiffs’ amended complaint, alleging causes of action in conversion, rescission of negotiation, and unjust enrichment against Citizens, First National and Glenview, were properly dismissed for failing to state causes of action. In all of these counts, plaintiffs alleged “on information and belief” that defendants “knew or had reason to know” of Douglas’ fraudulent inducement because plaintiffs neither had a business or other relationship with them nor owed them money. In addition, as against Citizens, the complaint also alleged it had knowledge or notice because the check payable to it was in payment of an indebtedness created by an earlier bad check of Douglas.

Initially, we consider the question whether these payee defendants are entitled to the protection afforded to holders in due course under the Uniform Commercial Code. (Ill. Rev. Stat. 1979, ch. 26, par. 3 — 305.) Under the Code, a “holder in due course” is a holder who takes an instrument for value in good faith, and without notice of any defense against or claim to it on the part of any person. (Ill. Rev. Stat. 1979, ch. 26, par. 3 — 302(1).) A “holder” is a person who has possession of an instrument payable to his order or to bearer in blank. (III. Rev. Stat. 1979, ch. 26, par. 1 — 201(20).) It is clear in the present case that the payee banks were “holders” of the checks in question. In Illinois it has been held that a payee who accepts a check from one who is indebted to him but who is not the drawer, without knowledge of any fraud which the debtor may have practiced to induce the drawer to write the check in favor of the payee is a holder in due course who takes the instrument free from any defenses claimed by the drawer. (Ill. Ann. Stat., ch. 26, par. 3 — 302(2), Hlinois Code Comment, at 140 (Smith-Hurd 1963); Drumm Construction Co. v. Forbes (1922), 305 Ill. 303, 137 N.E. 225.) However, a special situation exists where the payee is a bank who accepts a check from one who is not the drawer and that person requests that the bank credit his personal account with the proceeds. In this situation, the bank is held to a higher standard than is the individual in a private transaction, and notice is deemed to have been given by the terms of the instrument itself. (Milano v. Sheridan Trust & Savings Bank (1926), 242 Ill. App. 362, 368.) Explaining the distinction between individuals and banks under these circumstances, the court in Milano stated:

“There is a marked difference between the obligations of a banking institution receiving funds and an individual. The latter does not ordinarily receive checks payable to his order from persons not indebted to him; he is not the custodian of funds in which he has no interest; nor is he a depositary for such members of the public as wish to avail themselves of his services. On the other hand, a bank is all of these. The public is invited to use its conveniences as places of deposit; it holds itself out as trustworthy for such purposes; when it is named as the payee in a check by a party not indebted to it, it will be presumed that it accepts the same subject to the directions of the drawer and not to the directions of a stranger to the paper who happens to present it.” (242 Ill. App. 362, 369. Accord, People ex rel. Nelson v. Peoples Bank & Trust Co. (1933), 271 Ill. App. 41.)

Thus, under these circumstances the bank is required to hold the proceeds of the instrument subject to the order of the drawer, and not the presenter, and it generally cannot be a holder in due course as against the drawer if it has permitted the presenter to withdraw or otherwise use the proceeds of the check without taking precautions to determine the authority of the person to receive them. People ex rel. Nelson; Milano; Ill. Ann. Stat., ch. 26, par. 3 — 302(2), Illinois Code Comment, at 140-41 (Smith-Hurd 1963).

Glenview argues that an inquiry here would have been fruitless since plaintiffs intended Douglas to receive the proceeds and were not aware at the time of negotiation of any defense which they had upon the instrument. While this may be true, the pleadings do not indicate either the point at which plaintiffs became aware of Douglas’ fraud or the time when the checks were cashed. Thus, we are unable to conclude with any degree of certainty that an inquiry by the payee banks here would have been fruitless. It is conceivable that had the banks contacted plaintiffs, plaintiffs would have been advised of Douglas’ financial position and could have averted this controversy. Further, we do not consider the results of the inquiry as being determinative of whether the duty to inquire exists in the first instance. The duty in our opinion arises from the face of the instrument itself and not from the information which would be obtained from the drawer. We therefore conclude that the payee banks here are not entitled to assert holder in due course status as a defense to plaintiffs’ claims. They were merely holders of the instruments and as such took subject to all claims against them. Ill. Rev. Stat. 1979, ch. 26, pars. 3-306,1-201.

Turning to the complaint itself, as against each of these defendants, plaintiffs alleged, in addition to the common counts, that “on information and belief” they knew or had reason to know of the fraudulent inducement by Douglas because plaintiffs had no business or other relationship with defendants and owed them no money; that despite this knowledge or notice and without inquiry each endorsed and obtained payment of the checks, thereby converting them to their own use; that each refused to restore the proceeds to plaintiffs; and, that plaintiffs have been damaged in the face amount of the checks.

As previously set forth, an essential element of conversion is an immediate right of possession as against the defendant. (Farns Associates, Inc. v. Sternback (1979), 77 Ill. App. 3d 249, 252, 395 N.E.2d 1103.) First National and Glenview argue that a cause of action in conversion cannot be maintained against them because as holders they were entitled to possession of the instruments. We agree. The Comments to section 3 — 419 of the Uniform Commercial Code state that “[a] negotiable instrument is the property of the holder.” (Ill. Ann. Stat., ch. 26, par. 3 — 419, Uniform Commercial Code Comment 2, at 328 (Smith-Hurd 1963).) Therefore, as holders of the checks, the defendant banks became the owners of the instruments in question and as between the drawer plaintiffs and the payee banks the banks had the immediate right to possession of the instruments at the time of negotiation. Further, section 3 — 301 of the Code provides that a holder of an instrument “may transfer or negotiate it *** or enforce payment in his name.” (Ill. Rev. Stat. 1979, ch. 26, par. 3 — 301.) We therefore conclude that an action in conversion cannot lie against the payee banks.

However, we believe sufficient facts were alleged in the amended complaint to establish causes of action against the defendant banks in rescission of negotiation and unjust enrichment. Under section 3 — 306 of the Uniform Commercial Code (Ill. Rev. Stat. 1979, ch. 26, par. 3 — 306), a holder of an instrument who is not a holder in due course takes the instrument subject to all legal and equitable claims to it on the part of any person, including rescission of negotiation. The elements of an equitable claim for rescission on the basis of fraud and misrepresentation are: a representation in the form of a statement of material fact, made for the purpose of inducing the other party to act; the statement is false and known by the party making it to be false, or not actually believed by him to be true; the party to whom it is made must be ignorant of its falsity, must reasonably believe it to be true, must act thereon to his damage, and in so acting must rely upon the truth of the statement. Bank Computer Network Corp. v. Continental Illinois National Bank & Trust Co. (1982), 110 Ill. App. 3d 492, 501, 442 N.E.2d 586; Roda v. Berko (1948), 401 Ill. 335, 339, 81 N.E.2d 912.

On the basis of the foregoing authorities, plaintiffs’ complaint states sufficient facts to allege a right to rescission of negotiation on the basis of fraud. Plaintiffs alleged that defendant Douglas made a false representation to plaintiff Douglass, knowing it to be false, for the purpose of inducing plaintiffs to issue checks to the payee banks. The complaint stated that plaintiffs relied upon the misrepresentation in issuing said checks. While the complaint does not allege that plaintiffs’ reliance was reasonable, no objection on this basis was made. In any event, the reasonableness of plaintiffs’ reliance is a question of fact for the trier of fact. See Soules v. General Motors Corp. (1980), 79 Ill. 2d 282, 286, 402 N.E.2d 599.

In reaching this conclusion, we do not consider First National’s claim that plaintiffs’ action for rescission of negotiation is barred by the doctrine of laches. This question was not raised in the trial court and is therefore waived on appeal. (National Acceptance Co. of America v. Pintura Corp. (1981), 94 Ill. App. 3d 703, 706, 418 N.E.2d 1114.) First National also argues that because plaintiff Douglass did not personally negotiate the check, no negotiation occurred which can be rescinded by him. This argument is without merit. Section 3 — 202(1) of the Uniform Commercial Code defines “negotiation” when the instrument is payable to order as occurring when it is delivered with any necessary endorsement. (Ill. Rev. Stat. 1979, ch. 26, par. 3 — 202(1).) Under this definition, a drawer need not personally deliver the instrument to the payee in order for it to be “negotiated.”

To state a claim for unjust enrichment, the complaint must allege that there be unjust retention of a benefit, including money, by one party to the detriment of another party, against the fundamental principles of justice, equity, and good conscience. Kenneke v. First National Bank (1978), 65 Ill. App. 3d 10,12, 382 N.E.2d 309.

Plaintiffs’ amended complaint alleged that defendants gave no value to plaintiffs for the checks, but received the benefits of the proceeds. Plaintiffs also argue on appeal that defendants’ retention of the proceeds was unjust in light of their notice or knowledge of a claim and their lack of inquiry into it. Inasmuch as the defendant banks took the checks in payment of antecedent debts of defendant Douglas, they were taken “for value.” (Ill. Rev. Stat. 1979, ch. 26, par. 3 — 303(b).) However, as previously stated, the checks were taken with knowledge that there could be a claim against them. Under these circumstances, the application of the proceeds to the antecedent debt, without some precautions being taken, amounts to negligence on the part of the payee banks. (Milano v. Sheridan Trust & Savings Bank (1926), 242 Ill. App. 362.) We believe that under these circumstances it is a question of fact whether the proceeds were unjustly retained against the fundamental principles of equity. We therefore conclude that the amended complaint adequately stated a cause of action in unjust enrichment against the payee banks. Citizens argues that it was not unjustly enriched because it is in the same position as it was prior to cashing Douglas’ original check which gave rise to his indebtedness. However, this argument is spurious in light of the fact that it was the proceeds of plaintiffs’ check which enabled Citizens to be in the same position.

Finally, First National urges us to grant its motion for summary judgment based upon its alleged status as a holder in due course. Because we havé determined that First National is not entitled to assert this status as a defense to plaintiffs’ claims, we do not reach the question whether the motion should be considered by us although not ruled upon at trial.

For the foregoing reasons we reverse the order of the circuit court of Lake County dismissing the conversion and unjust enrichment counts of the amended complaint against defendants Woneses. We also reverse the court’s dismissal of the counts alleging rescission of negotiation and unjust enrichment against the payee defendant banks. In all other respects, the order is affirmed. The cause is remanded for further proceedings consistent with this opinion.

Affirmed in part, reversed in part, and remanded.

LINDBERG and REINHARD, JJ., concur.


source: Caselaw Access Project

author: JUSTICE UNVERZAGT

license: Public Domain

text:
      In re ADOPTION OF CINDY MARIE SCHUMACHER et al., Minors—(Wayne K. Krystek et al., Petitioners-Appellees, v. Lucille Schumacher, Petitioner-Appellant). In re MARRIAGE OF MARY E. SCHUMACHER, a/k/a Mary E. Krystek, Petitioner-Appellee and KIM A. SCHUMACHER, Respondent—(Lucille Schumacher, Petitioner-Appellant).
    Second District
    Nos. 83—340, 83—431 cons.
    Opinion filed December 12, 1983.

      Schwarz & Golden, Ltd., of West Dundee, for appellant.
    Thomas P. Young, of Muscarello, Crisanti & Young, of Elgin, for appel-lees.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

A judgment was entered dissolving the marriage of Mary and Kim Schumacher. Mary was awarded custody of the couple’s three minor children, Cindy, Peter, and Christopher, subject to Kim’s specified visitation rights. Subsequently, Kim’s mother, Lucille Schumacher, sought and obtained an order granting her weekly visitation with the children.

After Lucille filed her petition, but before the visitation order was entered, Mary and her new husband, Wayne K. Krystek, instituted an action to adopt the three Schumacher children. The adoption was ordered, after a hearing at which Lucille and her attorney were present. The adoption judgment provided that Lucille and the paternal grandfather, Joseph Schumacher, would have the right to visit with the children once each month.

Because of Mary’s alleged refusal to permit Lucille to visit with the children on August 7, 1982, Lucille filed a petition in the dissolution action seeking a rule to show cause for violation of the visitation orders. The judge presiding over the dissolution action directed that the matter be presented to the adoption judge, and Lucille filed a petition in the adoption proceeding for a rule to show cause, alleging that Mary had violated the order entered in that case for grandparent visitation. On Mary and Wayne’s motion, the trial court vacated the portion of the adoption judgment providing for grandparent visitation and dismissed Lucille’s petition.

Lucille then brought a petition in the dissolution action, seeking reinstatement of the visitation rights previously granted to her in that proceeding. Mary’s motion to dismiss this petition was denied; however, the trial court also denied Lucille’s petition to reinstate visitation.

Lucille appeals from the order dismissing her petition for a rule to show cause and vacating the grandparent visitation provisions of the adoption judgment. Lucille also appeals from the order denying her petition to reinstate the visitation rights granted in the dissolution proceeding. These appeals have been consolidated for resolution by this court.

The sole issue presented is whether the trial court erred in refusing to enforce or reinstate visitation rights granted to natural grandparents after adoption of their grandchildren.

After an order of adoption is entered, the natural parents of the adopted child are relieved of all parental responsibilities for the child and deprived of all parental rights with regard to the child. (Ill. Rev. Stat. 1981, ch. 40, par. 1521; People ex rel. Bachleda v. Dean (1971), 48 Ill. 2d 16.) These parental rights and responsibilities are assumed by the adoptive parents. (See Willey v. Lawton (1956), 8 Ill. App. 2d 344.) Adoption constitutes a complete and permanent severance of all rights and interests of the natural parent and child. (In re Custody of Atherton (1982), 107 Ill. App. 3d 1006; In re Petition to Adopt Cech (1972), 8 Ill. App. 3d 642.) This includes a termination of custodial rights (In re Drescher (1980), 91 Ill. App. 3d 658), as well as all rights of the natural parent to visitation (People ex rel. Witton v. Harriss (1940), 307 Ill. App. 283; see In re Custody of Atherton (1982), 107 Ill. App. 3d 1006), which is a form of custody. (In re Custody of Myer (1981), 100 Ill. App. 3d 27.) The only connections remaining are that the natural parent may be required to support the child if the adoptive parent is unable to do so and that the child may inherit from the natural parent. People ex rel. Bachleda v. Dean (1971), 48 Ill. 2d 16; In re Estate of Tilliski (1945), 390 Ill. 273.

Given the statutory scheme for the complete severance of the relationship between the child and his or her natural parents upon adoption (Willey v. Lawton (1956), 8 Ill. App. 2d 344), it follows that adoption also terminates any legal rights and interests of the natural parents’ relatives in the child. (See People ex rel. Bachleda v. Dean (1971), 48 Ill. 2d 16; Wilson v. Wallace (1981), 274 Ark. 48, 622 S.W.2d 164; In re Adoption of Gardiner (Iowa 1980), 287 N.W.2d 555; Lee v. Kepler (Fla. App. 1967), 197 So. 2d 570.) This is consistent with the statute’s aim of promoting the best interests and welfare of the child (Ill. Rev. Stat. 1981, ch. 40, par. 1525), a purpose which generally is served by giving the adopted child the status of a natural child of the adoptive parents and completely breaking all ties with the natural family. (In re Fox (Okla. 1977), 567 P.2d 985; Browning v. Tarwater (1974), 215 Kan. 501, 524 P.2d 1135; see contra, Mimkon v. Ford (1975), 66 N.J. 426, 332 A.2d 199; Reeves v. Bailey (1975), 53 Cal. App. 3d 1019, 126 Cal. Rptr. 51.) Thus, the entry of an order of adoption will operate to divest natural relatives, such as grandparents, of the right to visitation with the adopted child. People ex rel. Bachleda v. Dean (1971), 48 Ill. 2d 16; In re Adoption of Gardiner (Iowa 1980), 287 N.W.2d 555; In re Fox (Okla. 1977), 567 P.2d 985; Browning v. Tarwater (1974), 215 Kan. 501, 524 P.2d 1135; see contra, Reeves v. Bailey (1975), 53 Cal. App. 3d 1019, 126 Cal. Rptr. 51.

Illinois law does expressly provide for grandparent visitation in certain instances. In cases of dissolution of marriage or death of a parent, a court is empowered to grant grandparent visitation when it is in the child’s best interest to do so (Ill. Rev. Stat. 1981, ch. 40, par. 607(b); Ill. Rev. Stat. 1981, ch. 110V2, par. 11 — 7.1), thus modifying the common law rule which required a showing of special circumstances to justify such an order. (Ill. Ann. Stat., ch. 40, par. 607, Historical & Practice Notes, at 22 (Smith-Hurd 1983-84 Supp.); see Hawkins v. Hawkins (1981), 102 Ill. App. 3d 1037.) While some courts have reached the opposite conclusion (Mimkon v. Ford (1975), 66 N.J. 426, 332 A.2d 199; Reeves v. Bailey (1975), 53 Cal. App. 3d 1019, 126 Cal. Rptr. 51), the majority view is that an adoption terminates a grandparent’s visitation rights despite the existence of such statutory provisions authorizing grandparent visitation. Wilson v. Wallace (1981), 274 Ark. 48, 622 S.W.2d 164; In re Adoption of Gardiner (Iowa 1980), 287 N.W.2d 555; Poe v. Case (1978), 263 Ark. 488, 565 S.W.2d 612; In re Fox (Okla. 1977), 567 P.2d 985; Browning v. Tarwater (1974), 215 Kan. 501, 524 P.2d 1135; Bikos v. Nobliski (1979), 88 Mich. App. 157, 276 N.W.2d 541; Ex parte Pepper (Tex. Civ. App. 1976), 544 S.W.2d 836, error dismissed (Tex. 1977), 548 S.W.2d 884.

The majority view is persuasive, as there is no indication that the Illinois statutory provisions for grandparent visitation were intended to override the adoption laws. The Probate Act provision is expressly limited to situations where the child has not been adopted. (Ill. Rev. Stat. 1981, ch. IIOV2, par. 11 — 7.1.) The Illinois Marriage and Dissolution of Marriage Act grandparent visitation provision does not contain a similar express exclusion. (Ill. Rev. Stat. 1981, ch. 40, par. 607(b).) However, as a grandparent’s status as such is derived from the relationship between the child and the natural parent (In re Adoption of Gardiner (Iowa 1980), 287 N.W.2d 555; see People ex rel. Bachleda v. Dean (1971), 48 Ill. 2d 16), an adoption, which terminates the rights of the natural parent, also removes the basis for the relationship of the grandparent and thereby ends the status on which the statutory right to visitation rests. (In re Adoption of Gardiner (Iowa 1980), 287 N.W-2d 555.) Further, the mere existence of a statute permitting court-ordered grandparent visitation under certain circumstances should not be allowed to defeat the adoption statute’s basic premise of the complete severance of ties between the child and the natural family. (See 287 N.W.2d 555; Browning v. Tarwater (1974), 215 Kan. 501, 524 P.2d 1135.) Therefore, the grandparent visitation provision should be construed as subject to the adoption laws, such that a completed adoption proceeding supercedes any rights which could have been obtained pursuant to section 607(b) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1981, ch. 40, par. 607(b)). See In re Adoption of Gardiner (Iowa 1980), 287 N.W.2d 555; Browning v. Tarwater (1974), 215 Kan. 501, 524 P.2d 1135; see also Bikos v. Nobliski (1979), 88 Mich. App. 157, 276 N.W.2d 541.

Given these principles, the trial court did not err in denying Lucille’s petition to reinstate the grandparent visitation rights originally granted in the dissolution proceeding. The initial visitation order was vitiated by the adoption, and this order, while not challenged directly, automatically was rendered ineffective and unenforceable upon entry of the adoption judgment. (People ex rel. Bachleda v. Dean (1971), 48 Ill. 2d 16; Ex parte Pepper (Tex. Civ. App. 1976), 544 S.W.2d 836, error dismissed (Tex. 1977), 548 S.W.2d 884; Lee v. Kepler (Fla. App. 1967), 197 So. 2d 570; see Wilson v. Wallace (1981), 274 Ark. 48, 622 S.W.2d 164; Quarles v. French (1981), 272 Ark. 51, 611 S.W.2d 757; In re Fox (Okla. 1977), 567 P.2d 985; see contra, Reeves v. Bailey (1975), 53 Cal. App. 3d 1019, 126 Cal. Rptr. 51.) Further, the court could not have ordered the reinstatement as the adoption deprived the court in the dissolution proceeding of its otherwise continuing jurisdiction over the Schumacher children. (People ex rel. Bachleda v. Dean (1971), 48 Ill. 2d 16; In re Adoption of Lewis (Okla. 1963), 380 P.2d 697; see Ex parte Pepper (Tex. Civ. App. 1976), 544 S.W.2d 836, error dismissed (Tex. 1977), 548 S.W.2d 884.) This jurisdiction was dependent upon the continued existence of a parent-child relationship between the children and the parties to the dissolution (People ex rel. Bachleda v. Dean (1971), 48 Ill. 2d 16; In re Adoption of Lewis (Okla. 1963), 380 P.2d 697), as otherwise the dissolution court could continue to make orders as to custody, thus nullifying the adoption. (48 Ill. 2d 16.) Although Mary and the children maintained a parent-child relationship, their relationship continued by virtue of the adoption.

Lucille also has appealed from the order vacating the grandparent visitation provisions of the adoption judgment and denying Lucille’s petition for a rule to show cause due to Mary’s asserted violation of those provisions.

As a general rule, where an order is not challenged directly either by appeal or an appropriate motion for post-judgment relief, the order is conclusive, even if incorrect. (See Williams v. A. E. Staley Manufacturing Co. (1980), 80 Ill. App. 3d 981, rev’d on other grounds (1981), 83 Ill. 2d 559; Lady v. Montgomery Ward & Co. (1980), 80 Ill. App. 3d 69.) Further, a court order typically must be obeyed, even if it is erroneous, until the order is set aside, and disobedience of the order is punishable by contempt. (Armentrout v. Dondanville (1979), 67 Ill. App. 3d 1021.) However, if the court’s order is void, it may be attacked at any time, in any proceeding (O’Dell v. Dowd (1981), 102 Ill. App. 3d 189), and a person may not be held in contempt for violating the order. (Armentrout v. Dondanville (1979), 67 Ill. App. 3d 1021.) A void judgment is one which is entered without jurisdiction of the parties or the subject matter or without legal authority in the court to decide the particular matters presented. 67 Ill. App. 3d 1021; City of Chicago v. King (1967), 86 Ill. App. 2d 340, cert, denied sub nom. Ditto v. City of Chicago (1969), 393 U.S. 1028, 21 L. Ed. 2d 571, 89 S. Ct. 626; see In re Adoption of Gardiner (Iowa 1980), 287 N.W.2d 555.

A court rendering a judgment of adoption has no jurisdiction to simultaneously grant visitation rights to natural relatives of the adopted child, and such provisions in adoption orders are void. (In re Adoption of Gardiner (Iowa 1980), 287 N.W.2d 555; Poe v. Case (1978), 263 Ark. 488, 565 S.W.2d 612; In re Fox (Okla. 1977), 567 P.2d 985; Browning v. Tarwater (1974), 215 Kan. 501, 524 P.2d 1135.) This has been held to be true even where the parties have consented to the provision. (Poe v. Case (1978), 263 Ark. 488, 565 S.W.2d 612.) As noted above, the statutes permitting grandparent visitation in certain circumstances (Ill. Rev. Stat. 1981, ch. 40, par. 607(b); Ill. Rev. Stat. 1981, ch. llOVz, par. 11 — 7.1) do not authorize the court to order such visitation in an adoption judgment. (In re Adoption of Gardiner (Iowa 1980), 287 N.W.2d 555.) The generally broad powers of a court to grant equitable relief are also insufficient as a basis for such an award. 287 N.W.2d 555.

Similarly, the adoption statute cannot serve as authority for the inclusion of a grant of grandparent visitation in the adoption judgment here. The adoption statute contains no express provision for grandparent visitation..(Ill. Rev. Stat. 1981, ch. 40, par. 1501 et seq.; In re Adoption of Gardiner (Iowa 1980), 287 N.W.2d 555.) While the best interests of the adopted child are to be a paramount concern in adoption proceedings (Ill. Rev. Stat. 1981, ch. 40, par. 1525) and the adoption statute is to be liberally construed (Ill. Rev. Stat. 1981, ch. 40, par. 1524), these principles do not constitute authorization for an order of grandparent visitation given the fact that the adoption judgment has the effect of terminating the rights of the natural parent. (Ill. Rev. Stat. 1981, ch. 40, par. 1521; In re Adoption of Gardiner (Iowa 1980), 287 N.W.2d 555.) The liberal construction rule apparently was designed to alleviate the harsh results of the former requirement of strict construction of the procedural aspect of the adoption statute. (See Keal v. Rhydderck (1925), 317 Ill. 231.) Liberal construction should not be used to read into the statute something which is not there. Further, although it is an important factor (see Ill. Rev. Stat. 1981, ch. 40, par. 1525), the child’s welfare is not the sole criterion in an adoption proceeding (In re Adoption of Barker (1976), 37 Ill. App. 3d 721; In re Petition to Adopt Cech (1972), 8 Ill. App. 3d 642), and therefore cannot . support an. otherwise unauthorized grant of visitation to natural grandparents after an adoption. (See In re Adoption of Gardiner (Iowa 1980), 287 N.W.2d 555.) It is notable that before a court can enter an order for adoption, the court must find that the natural parents either consent or áre unfit and that the adoption is in the best interests of the child. (See In re Adoption of Burton (1976), 43 Ill. App. 3d 294; In re Petition to Adopt Cech (1972), 8 Ill. App. 3d 642.) The original order for visitation by Lucille, entered in the dissolution action, implies a judicial determination that such visitation would be in the best interests of the Schumacher children. (Ill. Rev. Stat. 1981, ch. 40, par. 607(b); Reeves v. Bailey (1975), 53 Cal. App. 3d 1019, 126 Cal. Rptr. 51.) This finding would not be conclusive in a subsequent proceeding, contrary to Lucille’s argument, as orders concerning visitation are not final and are subject to modification upon a change in circumstances. (Ill. Rev. Stat. 1981, ch. 40, par. 607(c); see In re Custody of Roberts (1982), 107 Ill. App. 3d 913.) However, the prior finding that contact with Lucille was beneficial for the children might have suggested that adoption, which would have eliminated this contact, would not have been in the children’s best interests. (See Quarles v. French (1981), 272 Ark. 51, 611 S.W.2d 757.) While not determinative, this factor would have been entitled to consideration. (See 611 S.W.2d 757; In re Johnson (1972), 210 Kan. 828, 504 P.2d 217.) However, Lucille did not object to the adoption, seeking only to continue her visitation rights.

Because the provision in the adoption judgment for visitation by Lucille was void, it was properly stricken. Further, because a person cannot be held in contempt for violating a void order (Armentrout v. Dondanville (1979), 67 Ill. App. 3d 1021), Lucille’s petition for a rule to show cause was properly dismissed.

The judgments of the circuit court of Kane County are affirmed.

Affirmed.

LINDBERG and NASH, JJ., concur.


author: JUSTICE BARRY

text:
    AMERICAN FLY ASH COMPANY, Plaintiff-Appellee, v. THE COUNTY OF TAZEWELL, Defendant-Appellant—(Families Opposed to Contaminating Uses of Soil, Defendant).
    Third District
    No. 82—0781
    Opinion filed December 14, 1983.
    G. Edward Orr, Assistant State’s Attorney, of Pekin, for appellant.
    Ronald L. Keyser and William L. Kasley, both of Elliff, Keyser, Oberle & Davies, P.C., of Pekin, for appellee.
   JUSTICE BARRY

delivered the opinion of the court:

This appeal involves an action for declaratory judgment and an injunction by American Fly Ash Company, plaintiff, against the County of Tazewell, defendant, to determine whether plaintiff was required by statute to obtain a permit from defendant before developing a waste disposal site in Tazewell County.

In the fall of 1980, plaintiff began efforts to locate a new site for disposal of fly ash and boiler slag to serve Commonwealth Edison’s Powerton plant located in Cincinnati Township in Tazewell County. Between October of 1980 and November 12, 1981, approximately $94,000 was spent on site location activities by Commonwealth Edison and plaintiff, including engineering studies, drilling, surveys and testing at various potential sites. On July 27, 1981, plaintiff filed an application with the Illinois Environmental Protection Agency for a developmental permit for a site located within Elm Grove Township in an unincorporated area of Tazewell County, and on October 27, 1981, the Agency issued the developmental permit to plaintiff for the requested site.

On November 12, 1981, Public Act 82 — 682 became law. This act amended the Environmental Protection Act (Ill. Rev. Stat. 1981, ch. IHV2, par. 1001 et seq.) to provide that the Environmental Protection Agency could not grant a permit for the development or construction of “a new regional pollution control facility” unless the applicant submits proof to the Agency “that the location of said facility has been approved by the County Board of the county if in an unincorporated area, or the governing body of the municipality when in an incorporated area, in which the facility is to be located ***.” (Ill. Rev. Stat., 1982 Supp., ch. IllV2, par. 1039(c).) Public Act 82 — 682 also defines a regional pollution control facility and further defines a “new” facility as one “*** initially permitted for development or construction after July 1, 1981; ***.” (Ill. Rev. Stat., 1982 Supp., ch. 38, par. 1003(x)(l).) Thus, even though the act did not become effective until November 12, 1981, more than two weeks after the Agency permit was issued, the Tazewell County Board of Supervisors sought to require plaintiff to obtain county board approval of the site under the new act.

Plaintiff did file an application with the Tazewell County Board, but plaintiff also brought this action for declaratory judgment and an injunction against the county. The parties agreed to a stipulation of facts, which provided, among other things, that the deposition of Mi-chell L. Nowicki, operations and product manager for plaintiff for the Peoria area, would be considered as evidence. After a hearing, the trial court ruled in favor of plaintiff, holding that plaintiff is not a new regional pollution control facility under Public Act 82 — 682 and that defendant is enjoined from proceeding under that Act. Defendant appeals.

The determinative issue is, we believe, whether Public Act 82 — 682 applies to plaintiff’s proposed facility which was in fact permitted for development after July 1, 1981, but before the effective date of the Act. Plaintiff had fully complied with the law in effect prior to November 12, 1981, and had a site development permit on October 27, 1981, after expending considerable sums of money for site studies. On November 12, 1981, the law governing such permits changed, and plaintiff now had to obtain additional approval from the appropriate local authorities. This provision of the law clearly mandates retroactive application of the local approval requirements.

We agree with the following statements by the appellate court in Champaign County Nursing Home v. Petry Roofing, Inc. (1983), 117 Ill. App. 3d 76, 79, 452 N.E.2d 847, 850:

“Even where there is a clear legislative intent that a statute be given retroactive effect, however, the enactment will not be so applied when to do so would lead to unreasonable or unjust results. [Citation.] Whether the retroactive application of legislation is permissible is not dependent on such outmoded distinctions as whether vested or nonvested rights are affected, or whether a statute affects rights or merely affects remedies. Rather, such cases must be decided on the basis of whether basic concepts of justice, fairness and equity militate for or against the retroactive application of the statute to a particular class of persons.”

In the case at bar, we believe justice, fairness and equity require that persons who comply with the law not as it might be but as it is then in effect, and in this instance obtain the required permit after expenditure of funds, should not have that permit nullified by retroactive application of a statute subsequently enacted. Accordingly, we hold that Public Act 82 — 682 applies only to facilities initially permitted for development or construction after November 12, 1981, and that plaintiff is not required to obtain site approval from the Tazewell County Board.

Having ruled that the statute may not be applied retroactively to plaintiff, we are not required to consider the other issue argued by defendant: whether plaintiff’s waste disposal site is a “regional pollution control facility” as defined by Public Act 82 — 682. However, in the exercise of our judicial discretion, we choose to comment on that issue.

Section 3 of the Environmental Protection Act as amended (Ill. Rev. Stat., 1982 Supp., ch. lll1^, par. 1003(x)), sets forth the following definition:

“ ‘Regional Pollution Control Facility’ is any waste storage site, sanitary landfill, waste disposal site, waste transfer station or waste incinerator that accepts waste from or that serves an area that exceeds or extends over the boundaries of any local general purpose unit of government. *** The following are not regional pollution control facilities: (1) sites or facilities located within the boundary of a local general purpose unit of government and intended to serve only that entity; (2) waste storage sites regulated under 40 CFR, Part 761.42; or (3) sites or facilities used by any person conducting a waste storage, waste treatment, waste disposal, waste transfer or waste incineration operation, or a combination thereof, for wastes generated by such person’s own activities, when such wastes are stored, treated, disposed of, transferred or incinerated within the site or facility owned, controlled or operated by such person, or when such wastes are transported within or between sites or facilities owned, controlled or operated by such person.”

Plaintiff’s proposed facility would accept waste only from within Tazewell County but would serve an area that crosses township boundaries. Thus at issue here is whether the term “local general purpose unit of government” includes townships or whether it is limited to counties and municipalities. The parties to this appeal have cited no cases defining the term in question. The only authority of which we are aware is an opinion of the Attorney General which reached the conclusion that the term “local general purpose unit of government” as used in Public Act 82 — 682 includes only counties and municipalities, not townships. (1981 A.G.O. No. 82 — 003.) The Attorney General noted that the term “units of local government” is defined in the Constitution as including counties, municipalities, townships, special districts and units designated as units of local government which exercise limited governmental powers. The opinion observed that the local government article of the constitution (Ill. Const. 1970, art. VII) makes clear that counties and municipalities, as a class of units of local government, are to be distinguished from townships. Section 6 of article VII provides that only counties and municipalities may become home rule units, and section 7 enumerates the powers which counties and municipalities which are not home rule units may have in addition to those granted by law. Section 8 grants powers to townships, school districts, and special districts and units of limited governmental powers which are considerably more restricted than those powers provided for counties and municipalities in section 7. On the basis of this analysis and a review of the history of these constitutional provisions, the Attorney General concluded:

“Although the term ‘local general purpose unit of government,’ as it appears in Public Act 82 — 682, is not identical to the term ‘unit of local general government,’ as discussed above, the terms are substantially equivalent and it is apparent that the General Assembly, by using the term ‘local general purpose unit of government,’ meant to make the same distinction initially made by the drafters of the local government article.”

Defendant attempts to read a contrary legislative intent into the Governor’s amendatory veto message, which was subsequently approved by both houses of the legislature. The Governor stated that he “strongly endorsed the concept of greater local control over the location of waste facilities,” but then he listed several problems with the bill as presented to him. His message included the following paragraph:

“First, this bill was intended to apply to offsite treatment, storage or disposal facilities, as opposed to those sites where industrial waste stays on the site where it was generated. The definition of ‘regional pollution control facility’ should be amended to recognize this distinction, and more clearly define the extent of the local approval process.”

The Governor discussed other problems and then set forth the specific language which would have to be changed in order for him to approve the bill. The Governor’s recommended amendments did not change the definition of “regional pollution control facility” as set out in the first sentence of section 3(x) quoted earlier (Ill. Rev. Stat., 1982 Supp., ch. IllV2, par. 1003(x)) but did amend the description of facilities that are not “regional pollution control facilities” to exclude on-site operations and those offsite facilities operated by the person whose activities generate the waste involved. The governor’s message did not purport to limit the purpose of Public Act 82 — 682 solely to offsite treatment facilities, but rather specified that intention as one that needed clarification.

We think it obvious that the legislature primarily intended to negate the holding of the Supreme Court in Carlson v. Village of Worth (1975), 62 Ill. 2d 406, 343 N.E.2d 493, where it was held that the Environmental Protection Act conferred upon the State agency exclusive power over pollution control matters, and thereby preempted all local regulation — zoning or otherwise. Public Act 82 — 682 does restore zoning powers to the unit of local government having jurisdiction over the proposed site before a permit may be granted by the Environmental Protection Agency for a new facility that is not a regional pollution control facility. (HI. Rev. Stat., 1982 Supp., ch. lllVa, par. 1039(c).) Therefore, those regional facility sites for which permits are sought after the effective date of Public Act 82 — 682 will be required to obtain approval of the Tazewell County Board pursuant to section 39.2 (Ill. Rev. Stat., 1982 Supp., ch. lllVa, par. 1039.2), and nonregional sites, pursuant to the county zoning ordinance.

To summarize, we conclude that plaintiff’s proposed site does not come within the definition of a “regional pollution control facility” because it will not serve an area that extends over the boundaries of any local general purpose unit of government. We reach that conclusion by deciding that townships are not “local general purpose units of government” since, under article VII of the Illinois Constitution, townships are more restricted in purpose than are counties and municipalities. To ignore that distinction would invite confusion. In the event the legislature disagrees that townships are excluded from the term “local general purpose unit of government,” the statute can be amended in the future.

For the reasons stated, we affirm the judgment of the trial court.

STOUDER, P.J., and SCOTT, J., concur.


author: JUSTICE WELCH PRESIDING JUSTICE HARRISON,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FLOYD COHOON, Defendant-Appellant.
    Fifth District
    No. 81—420
    Opinion filed November 28, 1983.

      HARRISON, P.J., dissenting.
    Appeal from the Circuit Court of Williamson County; the Hon. William A. Lewis, Judge, presiding.
    Randy E. Blue and E. Joyce Randolph, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Randy Patchett, State’s Attorney, of Marion (Stephen E. Norris and Frank J. Bieszczat, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE WELCH

delivered the opinion of the court:

Defendant Floyd Cohoon was convicted in the circuit court of Williamson County of rape and sentenced to 60 years’ imprisonment to be served consecutively with the term imposed for parole violation on 'an" earlier rape conviction. On appeal the defendant raises five issues. He asserts that: (1) the trial court improperly allowed identification evidence obtained with the assistance of hypnosis; (2) the trial court erred in not allowing the police officer who hypnotized the victim to testify; (3) the victim’s in-court identification resulted from an improperly suggestive photo array; (4) the trial court erred when it ruled he could be impeached with his former rape conviction, and (5) the sentence imposed was excessive.

On January 2, 1981, the 27-year-old victim was carrying groceries into her home in a rural area of Williamson County when a man stepped out' from behind the door and closed it. A struggle ensued, she dropped the groceries, he pushed her against the wall and told her he would not hurt her if she did as he said. She testified at trial that she thought he held a knife against her neck as he spoke to her. He then tied her hands with wire and led her out the front door to turn off the headlights of her truck. After returning to the house he led her into the bedroom, pulled her pants down and put his penis into her vagina. After he completed sexual intercourse, he tied her legs together, threw a sleeping bag over her and left. She waited about five minutes, freed herself, went to the phone and asked the operator to call her husband at work and ask him to come home immediately. The victim’s husband arrived home, phoned the police and then took his wife to the hospital.

On February 24, 1981, the victim picked the defendant’s photograph out of six she was shown in a photo array. She later made an in-court identification of the defendant. The victim testified that on the night of the crime she realized that she had seen the rapist previously. She stated she subsequently realized that he was one of the men who installed insulation in her house December 15-17, 1980. On cross-examination, the victim testified that she was interviewed by police three times during the week following the crime, but did not identify the defendant until seven weeks after the offense. She also testified on cross-examination that just prior to being shown the photo array, she was placed under hypnosis in order to refresh her memory. On re-cross-examination it was established that the only significant difference between the victim’s original description of her attacker and the description given under hypnosis was that under hypnosis she added the fact the rapist had very large ears.

Agent Connell F. Smith of the Illinois Division of Criminal Investigation testified that he hypnotized the victim. He stated he had conducted hypnosis interviews since September 1978 and had attended a 30-hour seminar in hypnosis. After listening to an offer of proof, the trial court ruled that Smith was not qualified to testify before the jury as an expert on how hypnosis affects the human mind.

Evidence found by police at the scene of the crime included the defendant’s fingerprint on the rear door of the victim’s residence. A volunteer weather observer for the National Weather Service, who maintained records of weather conditions in the area of the crime, testified that at no time between December 15 and January 2 was there ever more than a trace of rain or snow in the area. However, Robert C. Bartley, a latent fingerprint specialist with the Federal Bureau of Investigation, testified that it was “unlikely” that a latent fingerprint could last 16 days outdoors.

Also found at the scene was an empty beer can of the brand the defendant was known to drink and a piece of paper, undamaged by moisture, which contained instructions for sharpening drill bits of the type the defendant used regularly. Detective Roger Odum testified the defendant came to the police station to talk with him at his request. Detective Odum said the defendant told him he worked at his brother’s garage until 5 p.m. on the day of the crime and then went home and ate dinner with his family until 6 p.m. The defendant consented to a search of his automobile and home and also provided the hair samples requested by police. Detective Odum testified that F.B.I. tests showed that none of the hair samples found on the bed where the rape took place were the defendant’s.

Harold Cannup, Jr., who worked with the defendant, testified that he had once asked the defendant about an “unusual” odor, which the defendant attributed to the aftershave he wore. The victim had testified that her attacker wore a “very strong” aftershave.

After hearing the evidence and closing arguments of counsel, the jury was instructed on the law and retired to deliberate. The jury found the defendant guilty of rape and he was subsequently sentenced by the court to 60 years’ imprisonment to be served consecutively with the term imposed for parole violation on an earlier rape conviction.

The defendant’s primary argument on appeal is that the general scientific reliability of hypnosis, an underlying factor in producing the identification of the defendant, has not been demonstrated. Therefore, the defendant argues that evidence obtained with the aid of hypnosis cannot be presented at trial. A similar issue was presented in People v. Smrekar (1979), 68 Ill. App. 3d 379, 385 N.E.2d 848. In that case, identification testimony of a prosecution witness was not rendered inadmissible by her prior hypnosis by a physician. The evidence was held admissible since the prosecution established that the hypnotist was competent, evidence indicated that suggestion had not been used in the hypnosis, the identification was corroborated by other substantial evidence unknown to the witness and the witness had ample opportunity to view the perpetrator at the time of the crime. j

Recently, the Smrekar test was utilized in People v. Gibson (1983), 117 Ill. App. 3d 270, 452 N.E.2d 1368. In Gibson, the defendant was convicted of home invasion, rape, deviate sexual assault, burglary and felony theft. One of the victims was able to make an identification of the assailant following a hypnotic session conducted by a police officer to refresh her recollection. The reviewing court, adhering to Smrekar, stated that the hypnotism of a witness goes only to the weight accorded the evidence and not to its admissibility. (See also People v. Byas (1983), 117 Ill. App. 3d 979, 453 N.E.2d 1141.) The Gibson court stressed that allowing the defense to present expert testimony to the jury to show that hypnotism may influence a witness’ recollection will adequately allow the trier of fact to assess the value of the hypnosis testimony.

In Gibson, however, the court elaborated on the requirement that the hypnotist be competent to perform the interview. The court rejected the hypnosis-aided identification because the police officer who conducted the session had only one week of hypnosis training at police school and no foundation of competence or qualification had been shown. In addition, the court noted that as a police officer, the hypnotist was not disinterested in the success of the identification process. Accordingly, admission of the victim’s identification testimony in Gibson was held error, but the error was ruled harmless beyond a reasonable doubt because of accomplice testimony, testimony by a friend of the defendant and scientific evidence introduced by the State’s expert serologist.

The defendant in the case at bar argues that hypnotically enhanced testimony should be inadmissible because it fails to satisfy the test oí Frye v. United States (D.C. Cir. 1923), 293 F. 1013, concerning the admissibility of scientific evidence. For the results of a scientific procedure to be admitted under the Frye test, there must be a showing that the technique has been generally accepted as reliable in the scientific community in which it developed. The Gibson court noted that since the consensus of opinion among experts is that hypnosis is not a reliable method of producing accurate recollection of events, adoption of the Frye rule would require that testimony enhanced through hypnosis be inadmissible. Smrekar and Gibson both rejected this analysis. As was pointed out in Gibson, the Frye test is inapplicable primarily because that standard concerns admission of expert opinion deduced from a scientific technique, not eyewitness testimony In addition, the reliability of the procedure in a given situation is far more important than its theoretical general reliability. Therefore, the Gibson court stated, “Notwithstanding the substantial authority excluding the testimony of a witness who has undergone hypnosis, we believe that requiring the State to choose between the use of hypnosis on a witness to aid in the resolution of a difficult case and the use of that witness at trial exacts too high a price.” (People v. Gibson (1983), 117 Ill. App. 3d 270, 276, 452 N.E.2d 1368, 1373.) We agree.

Although we accept the Gibson court’s conclusion that the Frye rule is inapplicable in cases involving hypnotically enhanced testimony, we do not accept the Gibson court’s application of the Smrekar standards. We do not feel that a person with training in hypnosis is incompetent solely because he is a police officer. Although the officer in the case at bar did not have extended or elaborate training in hypnosis, the transcript of the hypnotic session shows that his 30 hours of training were sufficient to prevent him from attempting to influence the witness. Moreover, as the victim testified at trial, her hypnotic session brought out only one descriptive detail not previously offered, that the rapist had big ears. Given that the hypnotist in the case at bar had formal training in hypnosis, we hold he was sufficiently competent to satisfy the requirements of People v. Smrekwr. In addition to showing the hypnotist to be competent, there is no indication from the record that the procedure was fraught with suggestive influences since the victim altered the description under hypnosis in only one minor way. Other corroborative evidence did exist and the witness described how she had ample opportunity to view the rapist during the crime. Given the circumstances of this case, we find that the hypnotically enhanced testimony was helpful to the trier of fact in arriving at the truth and was properly admitted pursuant to People v. Smrekar.

Next, the defendant argues that the trial court erred when it ruled that the police officer who hypnotized the victim could not testify before the jury. The trial court ruled that the police officer Con-nell F. Smith could not testify as an expert on hypnosis. The defendant asserts on appeal that Smith’s testimony about his own nonexpert experiences with hypnosis was relevant and would have helped establish the suggestiveness of the identification procedure. Therefore, the defense contends, the testimony of Connell F. Smith was erroneously excluded. We disagree.

The trial court ruled that Smith, a police officer with 30 hours of training in hypnosis, was not an expert on hypnosis and the workings of the human mind. Even Officer Smith characterized himself as a technician, trained to place people under hypnosis, question them and bring them out of hypnosis. He never purported to have the training of a psychiatrist or a psychologist. Given this testimony we cannot say the trial court abused its discretion in ruling that the police officer’s qualifications as an expert on hypnosis had not been established. (People v. Park (1978), 72 Ill. 2d 203, 380 N.E.2d 795.) Moreover, the record does not show that the defendant preserved this issue for review. The only issue before the court was the police officer’s qualification as an expert. The relevancy of the officer’s testimony was never before the trial court. Since issues not raised in the trial court generally cannot be raised on appeal, we find that the defendant has waived this issue. People v. Holloway (1981), 86 Ill. 2d 78, 426 N.E.2d 871.

Thirdly, the defendant argues that the victim’s in-court identification should have been suppressed because a pretrial photo array was impermissibly suggestive. The defendant reasons that the photo array was impermissibly suggestive because his last name could be seen on the shirt he was wearing in the picture. Reliance is placed on Simmons v. United States (1968), 390 U.S. 377, 19 L. Ed. 2d 1247, 88 S. Ct. 967. In Simmons, the defendant was convicted of armed robbery and argued that photographs viewed before the trial tainted the witnesses’ in-court identifications. The Supreme Court stated that the hazards of identification by photograph are lessened by defense counsel’s having the opportunity to cross-examine an eyewitness at trial and expose any misidentification. The court concluded that each case must be considered on its own facts and convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. Applying this test, the Supreme Court held that the defendant’s due process rights were not violated by the pretrial identification.

Illinois courts have held that it is initially the defendant’s burden to establish that a pretrial identification was impermissibly suggestive. (People v. Blumenshine (1969), 42 Ill. 2d 508, 250 N.E.2d 152.) The State may then overcome this obstacle by a clear and convincing showing, based on the totality of the circumstances, that the identification was based solely on the witness’ memory of the crime. People v. Lee (1973), 54 Ill. 2d 111, 295 N.E.2d 449.

In the case at bar, the State asserts that the defendant has not established that the pretrial identification was impermissibly suggestive because a portion of the name tag was obscured in the photograph by a sign indicating that the photo was taken at Vienna Correctional Center. We reject this argument. The victim testified that she and her husband had discussed the possibility that Floyd Cohoon was the man who raped her and her husband then suggested to police that Cohoon was the rapist. The fact that only half of the first several letters of the defendant’s name were visible in the photo does not obscure the name to someone who already knows it. The victim testified that she saw the defendant’s name on the shirt in the photo, but was not influenced by it. This subjective statement does not contravene the fact that by objective standards the photo array was impermissibly suggestive. This court has held that differences among the photographs in an array, even noticeable and unnecessary differences, do not always amount to impermissible suggestiveness. (People v. Harrell (1982), 104 Ill. App. 3d 138, 432 N.E.2d 1163.) Nonetheless, including a suspect’s name in a photo when the victim knows the suspect by name is impermissibly suggestive.

However, we cannot agree with the defendant’s argument that the victim’s in-court identification was inadmissible, since the record shows that there was an independent origin for the in-court identification. At trial, the victim described her attacker in detail, mentioned that he wore very strong aftershave lotion and had beer on his breath. She further stated that although her attacker stepped from behind the door when she entered the house, she did look him in the face at that time with the aid of light coming through the window.

Moreover, during the rape the victim was lying on her back on the bed facing her attacker as he whispered questions to her about her husband and about her sexual experiences. In light of the victim’s testimony about her opportunity to observe her attacker, it is evident that her in-court identification of the defendant rested on her memory of the events as she observed them at the time of the crime, rather than resting on the suggestiveness which occurred during the photo-identification procedure. People v. McTush (1980), 81 Ill. 2d 513, 410 N.E.2d 861.

Fourthly, the defendant contends that the trial court erred in refusing to grant his motion in limine preventing impeachment at trial with his 1975 rape conviction. He asserts the ruling was prejudicial because it precluded him from testifying on his own behalf. We find this contention to be without merit. We note that the burden is on the defendant to demonstrate unfair prejudice from evidence of a prior conviction and the defendant’s refusal to testify, standing alone, will not serve as a basis for concluding that he is prejudiced.- (People v. Leonard (1980), 83 Ill. 2d 411, 415 N.E.2d 358.) Instead, the

defendant’s decision not to testify appears to be merely a matter of trial strategy. Accordingly, any possible error was not prejudicial and does not require reversal.

Finally, defendant asserts that his 60-year sentence was excessive because the trial court improperly considered his lack of remorse and the amount of penitentiary good time credit he would likely receive. As the State points out, the court’s reference to the statutory good time provision at the sentencing hearing was in response to an argument on that point advanced by defense counsel. After discussing Department of Corrections policies on the release of prisoners, the judge stated, “*** my first primary concern is that Mr. Cohoon not have a third victim. If I do anything that allows him to get out and rape a third young girl, then I haven’t done my job.” This statement makes evident that the court’s primary concern was the prevention of crime and the court’s remarks about good time credit were not improper. In addition, the court’s statement about the defendant’s lack of remorse was also appropriate. (People v. Morgan (1974), 59 Ill. 2d 276, 319 N.E.2d 764.) Overall, the record shows that the trial court imposed the maximum sentence because of the seriousness of the crime, the presence of several aggravating factors and the absence of mitigating factors. Accordingly, the 60-year sentence cannot be considered an abuse of discretion and must be affirmed. People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.

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

Affirmed.

JONES, J., concurring.

PRESIDING JUSTICE HARRISON,

dissenting:

I respectfully dissent.

In State v. Mena (1981), 128 Ariz. 226, 624 P.2d 1274, the Arizona supreme court succinctly stated the rationale for excluding testimony which has been tainted by hypnosis:

“The determination of the guilt or innocence of an accused should not depend on the unknown consequences of a procedure concededly used for the purpose of changing in some way a witness’ memory. Therefore, until hypnosis gains general acceptance in the fields of medicine and psychiatry as a method by which memories are accurately improved without undue danger of distortion, delusion or fantasy, we feel that testimony of witnesses which has been tainted by hypnosis should be excluded in criminal cases.” 128 Ariz. 226, 231, 624 P.2d 1274, 1279.

In my view, the position articulated in Mena is superior to that adopted in People v. Smrekar (1979), 68 Ill. App. 3d 379, 385 N.E.2d 848, and adhered to by the majority herein. Hypnosis simply does not seem to be understood even to the point where experts can agree on its reliability or usefulness, and it is unrealistic to expect that even the most conscientious jury is capable of rationally determining what weight should be accorded to hypnotically tainted testimony. “The degree of reliability attributable to the behavior of the truly hypnotized, cooperative individual is most difficult to ascertain, even for the skilled hypnotist. The hypnotic state induces communication with the unconscious mind of the subject and a combination of delusion, fantasy and reality may be harbored therein. *** The desire to please the hypnotist may induce the subject to mirror the attitude detected in the hypnotist’s questions and his behavior.” (Spector & Foster, Admissibility of Hypnotic Statements: Is the Law of Evidence Susceptible? 38 Ohio St. L.J. 567, 578 (1977).) Moreover, as admitted by the hypnotist in the offer of proof in the instant case, a hypnotized subject may confabulate, or create plausible but inaccurate explanations to fill in gaps in memory. In my opinion, to ask a judge or jury to meaningfully access testimony quite possibly influenced by these most subtle of subtleties is simply to ask too much. As a reviewing court which has observed neither the witness nor the hypnotist, we are especially unfit to conclude, as does the majority here, that a transcript of the hypnotic session “shows that 30 hours of training were sufficient to prevent [the hypnotist] from trying to influence the witness.” Until such time as hypnosis gains general acceptance in the scientific and psychiatric communities, it should not be accorded such acceptance in the judicial process. As our supreme court clearly indicated in People v. Baynes (1981), 88 Ill. 2d 225, 241, 430 N.E.2d 1070, when determining that polygraph evidence was wrongly admitted, “ '*** while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.’ (Frye v. United States (1923), 293 F. 1013,1014.)”

Finally, I believe that the error committed in allowing the hypnotically tainted identification of defendant was greatly exacerbated by the use of the highly suggestive photographic lineup discussed by the majority. The victim, who apparently knew defendant’s name, emerged from the highly suggestive state created by hypnotism to view a photographic lineup in which defendant was pictured wearing a shirt with his name on it. Under these circumstances, I cannot help but conclude that the methods employed “give rise to a very substantial likelihood of irreparable misidentification.” (Simmons v. United States (1968), 390 U.S. 377, 384, 19 L. Ed. 2d 1247, 1253, 88 S. Ct. 967, 971.) For these reasons, I believe that defendant’s conviction should be reversed and this cause remanded for a new trial.


author: JUSTICE WELCH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KEITH D. WALN, Defendant-Appellant.
    Fifth District
    No. 82—615
    Opinion filed November 16, 1983.

      George R. Ripplinger, Jr., of Ripplinger, Dixon & Hoffman, of Belleville, for appellant.
    John Baricevic, State’s Attorney, of Belleville (Stephen E. Norris and Mark A. LaRose, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE WELCH

delivered the opinion of the court:

Following a jury trial in the circuit court of St. Clair County, defendant Keith Wain was convicted of burglary and sentenced to six years’ imprisonment. He argues that the trial court erred in denying his motions to suppress evidence seized in a search of his car and to suppress a confession given to St. Clair County authorities.

At approximately 10 p.m. on April 25, 1982, the defendant’s car was stopped by Caseyville police officers at the only entrance to a subdivision where a burglary had been reported as being in progress. St. Clair County deputy James Lay joined the Caseyville officers soon after the defendant’s car was stopped and directed them to detain the defendant. The defendant instead left the police and led them on a high speed chase until- his car ran off the road about one-quarter mile from where he was first stopped. He was issued several traffic citations and his license was taken for bond. Later, while he was still at that location, his car was searched, including the trunk, and he was placed under arrest. The defendant was transported to the St. Clair County jail, where he gave a statement to the authorities.

The defendant first contends that his initial detention by the Ca-seyville officers was improper. He reasons that his subsequent flight, the search of his car, his arrest and his confession are all products of that detention and should have been suppressed. He points out that when he was first directed to stop, he was not engaged in any criminal activity, nor was he committing any traffic violations. Moreover, at that time, the authorities did not have a description of any of the individuals observed at the scene of the burglary. The People respond that the officers nonetheless had sufficient information to make an investigatory stop of the defendant’s car pursuant to Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868.

The principles applicable to this issue are well settled. Under Illinois’ codification of the Terry rule (Ill. Rev. Stat. 1981, ch. 38, par. 107 — 14), a police officer may, after identifying himself, stop a person in a public place for a reasonable period of time if the officer reasonably infers from all of the circumstances that that person is about to commit or has committed an offense. Probable cause for arrest need not be shown for this detention, but the stop must be justified by specific and articulable facts which, when combined with rational inferences from those facts, warrant the intrusion. A mere hunch or suspicion is not sufficient. People v. Fox (1981), 97 Ill. App. 3d 58, 421 N.E.2d 1082; People v. Grice (1980), 87 Ill. App. 3d 718, 410 N.E.2d 209, cert, denied (1981), 450 U.S. 1003, 68 L. Ed. 2d 207, 101 S. Ct. 1714.

Caseyville police officer Michael Mooney testified both at trial and at a hearing on the defendant’s motion to suppress physical evidence. At 9:56 p.m. on April 25, 1982, Mooney received a radio dispatch concerning a burglary in progress at 103 Southern Drive in Caseyville. Three other police units responded with Mooney to that call. Mooney did not arrive at the scene of the burglary because he received a radio transmission from his sergeant informing him that there were two vehicles leaving the scene of the burglary and advising him to stop the vehicles. At the hearing on the motion to suppress, Mooney stated that the transmission did not include a description of the vehicles.

As a result of this information, Mooney stopped a black-over-red Dodge Charger driven by the defendant and Caseyville officer Ga-zawski stopped a blue Ford Granada. These cars were stopped at the only entrance to the subdivision containing the burglarized residence, approximately one-quarter to one-half mile from the site of the burglary, at 10:02 p.m., 30 seconds after Mooney received the radio transmission from his sergeant. It appears that a third car, a tan or brown AMC Pacer or Gremlin, was stopped subsequently at this location. Mooney testified that at the time he arrived at the entrance to the subdivision, the Charger and the Granada were the only two cars leaving the subdivision, although other cars were entering it and “one or two” additional cars may have later exited the subdivision.

Mooney asked the defendant for identification, which he produced. Mooney also inquired whether the defendant lived in the area, and he replied that he did not, but he was there to visit a friend known as “Buster.” About 30 seconds after Mooney first stopped the defendant’s car, St. Clair County deputy sheriff James Lay arrived at the scene of that stop. Lay recognized the defendant, whom, he stated, he was aware through fellow officers was an “admitted burglar.” The defendant had not previously been arrested for burglary, and Lay had no personal knowledge of the defendant’s connections with law enforcement authorities. Lay directed Mooney to detain the defendant while he went to the burglarized residence, so Mooney instructed the defendant to pull his car to the side of the road. The defendant then left the entrance of the subdivision at a high speed.

These facts establish reasonable cause for the initial stop of the defendant’s car. The authorities were aware that a burglary was in progress in a residential neighborhood or had been very recently completed at 9:56 p.m., and knew, within a minute or two after 10 p.m., that two cars were leaving the scene of that burglary. The knowledge of each of the police officers, when working together, is the knowledge of all (People v. Hobson (1983), 117 Ill. App. 3d 191, 452 N.E.2d 771), and so Michael Mooney was justified in acting upon the information furnished him through the radio transmissions. While that information did not include a description of any suspects or vehicles to be stopped, we cannot say that Mooney acted unreasonably by stopping the only two cars he saw leaving the sole exit to the subdivision, especially given the extremely close spatial and temporal proximity to the report of the burglary in progress. (People v. Jones (1981), 102 Ill. App. 3d 246, 429 N.E.2d 1101; People v. Grice (1980), 87 Ill. App. 3d 718, 410 N.E.2d 209, cert, denied (1981), 450 U.S. 1003, 68 L. Ed. 2d 207, 101 S. Ct. 1714; People v. Drummer (1980), 81 Ill. App. 3d 626, 402 N.E.2d 307.) Furthermore, the recognition of the defendant by Deputy Lay as a person who had been connected with other burglaries furnished additional grounds to detain the defendant while Lay inspected the scene of the burglary. (People v. Keith (1972), 7 Ill. App. 3d 1071, 289 N.E.2d 103.) Under the evidence presented to the trial court, it did not err in deeming the initial stop of the defendant to be in accord with Terry standards.

Our holding that the defendant’s car was properly stopped at the entrance to the subdivision undercuts much of the defendant’s argument that the search of his car and his subsequent arrest were unreasonable. Since the initial stop of the defendant was legal, his precipitous flight from that location was, at the least, an additional factor to support the detention of the defendant where the chase came to an end. (People v. Holdman (1978), 73 Ill. 2d 213, 383 N.E.2d 155, cert, denied (1979), 440 U.S. 938, 59 L. Ed. 2d 496, 99 S. Ct. 1285.) If cause existed to hold the defendant at the first location pending Lay’s investigation of the burglary site, it necessarily existed in greater quantity at the second location.

While the defendant was being detained at the second location, Deputy Lay went to the site of the burglary, where he spoke to Dan Dervalis, who is a neighbor of the Cowgills, whose residence was burglarized. At trial, Dervalis testified that he was at home on April 25, 1982, when at about 9:30 or 10 p.m., he heard his dogs barking. He observed “a big gray car going real slow and two guys walking next to it.” The men walked the length of the Cowgills’ yard and then went between the Cowgills’ trailer and their shed. Dervalis went outside and kept watch over the Cowgills’ trailer for about five minutes. The back door of the trailer swung open, and two people exited the trailer carrying items. At that point, he could not tell whether these individuals were men or women, but he called out, “Hold it, boys.” The two people ran away, dropping items as they went, although Dervalis observed that they still had some goods in their possession. Dervalis ran to the front of the Cowgills’ trailer, where he saw an individual run across the street, carrying a white bag or pillowcase.

Dervalis then returned to his home and instructed his wife to telephone the police. He walked to the house of his neighbor, Buster Armstrong, to ask him about the gray car which Dervalis had seen earlier. That car was still in the road near the Cowgills’ trailer at that time. Armstrong told Dervalis that the car belonged to his mother. The defendant and a woman with long black hair were also at the Armstrong residence when Dervalis arrived. The defendant was seated on his Charger. When Dervalis inquired about the break-in at the Cowgill residence, the three told him that they did not know anything about it. Dervalis then returned to his residence, where he stood outside until the authorities arrived. He was not certain if the defendant left the Armstrong residence during this period.

Dervalis spoke to Deputy Lay for five minutes between 10:30 p.m. and 11 p.m. In addition to relating to him the events recounted above, Dervalis said that he had seen two white males, “one short, stocky, shoulder length blond hair, with light colored T-shirt,” and the other was a “skinny white male with darker hair.” The first description fit the defendant. Lay then spoke to John Cowgill, who had recently arrived home. Cowgill told him that among the items taken from his residence were several guns, a box of jewelry and a white pillowcase. Lay returned to the location where the defendant was being held.

After arriving at that location, Lay asked the defendant if he could look in the trunk of his car. He replied that the trunk did not open and, in any case, he did not have a key for the trunk. Lay observed a key ring with the initial “K” on it on the ground four feet from the driver’s door of the defendant’s car. One of the keys was a Chrysler product trunk key, and Lay tried it on the trunk of the defendant’s car. It opened, and inside was a white pillowcase containing pistols and a jewelry box. The defendant was then placed under arrest for burglary.

We agree with the People that the search of the defendant’s vehicle was made with probable cause to believe that a crime had been committed and that evidence of it was in the defendant’s vehicle. (People v. Beil (1982), 110 Ill. App. 3d 291, 442 N.E.2d 291.) The many corroborative details which establish probable cause need not be repeated. Thus, as probable cause for the search existed, the search of the defendant’s trunk and the pillowcase in it were permissible according to the authority of United States v. Ross (1982), 456 U.S. 798, 72 L. Ed. 2d 572, 102 S. Ct. 2157, and People v. Clark (1982), 92 Ill. 2d 96, 440 N.E.2d 869. The fact that the property found in the defendant’s trunk was the same type as that missing from the Cowgill trailer only adds to the inferences to be drawn from the defendant’s close proximity to the offense, his flight from the officers once stopped, his attempt to prevent them from looking into his trunk, and his similarity to Dervalis’ description of one of the men seen near the trailer. Viewing all of this evidence as a whole, we cannot find error in the trial court’s determination that the defendant’s arrest was supported by probable cause. People v. Moody (1983), 94 Ill. 2d 1, 445 N.E.2d 275.

Finally, the defendant contends that his confession, given at the St. Clair County jail after his arrest, should have been suppressed. He argues only that it was the fruit of the unlawful search of his car. Having found that search to have been lawful, we must necessarily reject this argument. We also agree with the State that the record fails to show that the trial court erred in finding that confession to have been voluntarily made.

For these reasons, we affirm the judgment of the circuit court of St. Clair County.

Affirmed.

HARRISON, P.J., and JONES, J., concur.