author: JUSTICE LINDBERG

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EDWARD VIENS, Defendant-Appellant.
    Second District
    No. 81—83
    Opinion filed October 20, 1982.

      G. Joseph Weller and John R. Wimmer, both of State Appellate Defender’s Office, of Elgin, for appellant.
    J. Michael Fitzsimmons, State’s Attorney, of Wheaton (Phyllis J. Perko and Marshall Stevens, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE LINDBERG

delivered the opinion of the court:

The defendant, Edward Viens, was charged in a two-count indictment with the crimes of aggravated kidnaping with a deadly weapon (Ill. Rev. Stat. 1979, ch. 38, par. 10 — 2(a)(5)), and armed violence (Ill. Rev. Stat. 1979, ch. 38, par. 33A — 2). He proceeded to a bench trial in the circuit court of Du Page County. During trial, the defendant entered and the court accepted a plea of guilty to the charge of aggravated kidnaping. Trial continued on the charge of armed violence and the defendant was convicted of this offense. He was sentenced to serve 30 years for the kidnaping and 60 years for the armed violence conviction, these terms to run concurrently.

On the morning of February 1, 1980, Janice Klank was on her way to work when her car stalled about 30 feet from a frontage road in Lombard, Illinois. As she tried to restart the car, a brown car pulled up next to her. An individual, later identified as the defendant, got out of the brown car and offered Klank a ride. She declined, saying that her boyfriend worked down the street at National Controls and that she would go there. The defendant offered her a ride and after some hesitation, Klank accepted.

She got into defendant’s car and as they were driving to National Controls, she heard the passenger door lock. Viens drove past National Controls. Klank testified that he pulled out a knife, opened it and held it about 12 inches away from her. She tried to unlock the car door but the lock came off in her hand. Klank testified that defendant told her to move over and put on the seat belt in the middle of the front seat. She did so. Defendant told Klank that he would not kill or harm her if she did as he told her.

Defendant drove onto a frontage road and stopped the car. At that time, he took out a bag of plastic restraints described by Klank as being similar to garbage bag ties. Defendant used these to tie her wrists together underneath her legs. Sometime later when Klank told him she was uncomfortable and wanted a cigarette, Viens removed the restraints.

Viens took Klank to an apartment located at 902 Ridge Square in Elk Grove Village. Viens once again restrained Klank and took her into the apartment. There, he removed the restraints and allowed her to call her mother and offered her food. Viens then told Klank that he was holding her as hostage to gain the release of his girlfriend, who was in Du Page County jail. Shortly thereafter he restrained her again, put her in the car and drove to defendant’s place of employment. Defendant removed Klank’s restraints and they left without entering the building. The next stop was a Clark station where defendant allowed Klank to buy cigarettes. Klank testified that defendant held a knife on her while they were at the gas station.

They returned to the defendant’s apartment. Some time after their arrival, defendant told Klank to go into the bedroom and lie face down on the bed. He then used the plastic restraints to tie her hands and feet to the bedposts. Later, he expressed concern that the restraints were painful, removed them, and retied Klank in a different position. He left the bedroom returning about a half an hour later, and removed the restraints again. Klank and Viens both sat down in the living room. It was about 1:50 p.m.

About 40 minutes later Viens and Klank got back into the car and . drove to defendant’s place of employment. He restrained her again and went to see if anyone was in the building. Subsequently, he took Klank into the building’s bathroom where he tied her to a shower railing.

Klank asked Viens to call Charlie Bruttie, her girlfriend, to tell her the location of her disabled car. She gave Viens Bruttie’s name and office number, which he wrote down. A paper with the name and number was admitted as People’s Exhibit No. 4. Viens told Klank he was unable to reach Bruttie. Viens told Klank that he would leave soon to make a phone call to the Du Page County jail. He then made her go into the shower room and assume various positions so he could determine how to tie her up. He finally had her sit on a bucket, tied her wrists behind her back and tied her ankles to the bucket. He then placed a restraint around her neck and connected this to a restraint which was attached to the shower railing. He gagged the victim using two handkerchiefs. He then turned off the lights, shut the door and left. Klank testified that she heard a car start.

Viens returned after about 20 minutes, clipped the restraint which was attached to the shower railing and the ones on Klank’s wrists and ankles, but left the restraint around her neck. He told her to turn around so that he could remove that restraint. When she had turned he told her to take her top off. Klank reminded him that he had said he would not hurt her. He repeated his demand and tightened the restraint around her neck. Klank complied.

Viens then told her to remove her pants and underpants. She again stated that he’d said he would not hurt her. Defendant replied that he had lied to Klank all along. Klank removed her pants and underwear. Defendant tied her hands behind her back, tied her ankles together and sat her on the floor. He then left the room. While he was gone, Klank broke one of the ankle restraints.

When he returned and noticed the broken restraint, defendant became angry. He retied Klank, this time with her wrists behind her back and secured to her ankles.

Defendant left the room, and Klank managed to break her restraints. She left the building clad only in her jacket. Defendant was in his car and when he saw Klank leave the building he drove toward her, missing her by about a foot.

Klank ran toward a railroad track. The defendant ran after her and caught her about 150 feet from the building. Viens took her back to the office, told her to get dressed, and then left the building. While he was outside, Klank called the operator and asked for help. She hung up when defendant returned. Within minutes there was a call for Klank. Defendant allowed Klank to take the call, warning her not to give anything away. The caller identified himself to Klank as a police officer and she replied, “Oh, what’s the use, I’m about to be killed or raped.” At this, the defendant hung up the phone. The phone rang again, distracting defendant, and Klank was able to escape to a loading dock where several men escorted her into a building and called the police.

During trial, defendant pleaded guilty to aggravated kidnaping and moved to dismiss the armed violence count as a lesser included offense. The court stated that it would not accept the guilty plea if it was conditioned upon the dismissal of the armed violence. Defense counsel stated that it was not. The court admonished defendant and accepted the plea.

Trial continued on the armed violence count. Evidence was heard, and the State submitted the transcript of the defendant’s plea of guilty to aggravated kidnaping as a judicial admission.

The defendant was found guilty of armed violence and a sentencing hearing was held. The court stated that it found no factors in mitigation. In aggravation the court noted that defendant’s conduct caused or threatened serious harm, that defendant had a history of prior delinquency or criminal activity, and that the sentence was necessary to deter others from committing the same crime. The court further found that the offense was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty and sentenced defendant to the maximum extended term for each offense.

Subsequently, defendant asked the court to appoint a different attorney to represent him. The court did so, and the newly appointed attorney filed a “Post-Trial Motion and Motion to Withdraw Guilty Plea.” After a hearing wherein defendant testified that prior counsel had spoken to defendant only twice during the pretrial period, that he had failed to contact the attendant at the Clark station, and that he had misinformed defendant as to the effect of his guilty plea, the motion was denied. This appeal resulted.

I. LESS SERIOUS OFFENSE

The State and defendant are in agreement that one of the convictions in this case must be vacated pursuant to the supreme court’s opinion in People v. King (1977), 66 Ill. 2d 551, holding, inter alia, that multiple convictions cannot stand where more than one offense is carved from a single physical act. They also agree on the general rule that the conviction for the more serious of the offenses is to be upheld. (People v. King; People v. Walton (1981), 94 Ill. App. 3d 903, 419 N.E.2d 495.) The controversy centers upon which of the two offenses is the more serious. The defendant claims that aggravated kidnaping is the more serious offense. The State disagrees.

Our supreme court recently considered this problem in People v. Donaldson (1982), 91 Ill. 2d 164, where the court considered multiple convictions of (1) aggravated battery causing great bodily harm; (2) aggravated battery causing permanent disfigurement; (3) aggravated battery using a deadly weapon; and (4) armed violence. The armed violence charge was predicated upon aggravated battery causing great bodily harm. The supreme court noted that that the predicate felony was a “necessarily included offense” of armed violence and holding that sentence should have been imposed only on the more serious offense, vacated the aggravated battery. We find the rule in Donaldson is dispositive of the instant case. Accordingly, we vacate defendant’s conviction on the charge of aggravated kidnaping (Class 1 felony) and his conviction for the more serious offense of armed violence (Class X felony) is affirmed.

II. ASSISTANCE OF COUNSEL

The defendant next raises two issues concerning the adéquacy of his counsel at trial. First, he contends that his guilty plea was invalid due to the fact that counsel misinformed him as to the effect of his plea of guilty to the offense of aggravated kidnaping. He claims that he was unable to make an intelligent plea and that the court should therefore have granted his motion to withdraw that plea. Second, it is his contention that counsel’s failure to contact a gas station attendant who might have served as a witness constitutes ineffective assistance of counsel and that his conviction must be vacated on this ground.

The defendant claims that, in advising him about the entry of a guilty plea, trial counsel informed him that a plea of guilty to the “lesser” charge of kidnaping would preclude trial on the “greater” charge of armed violence in that it would amount to acquittal of this greater charge. Counsel made this argument in open court. Defendant correctly notes in his brief that People v. McCutcheon (1977), 68 Ill. 2d 101, includes a clear rejection of the idea that a defendant can, in effect, preempt the prosecution by entry of the guilty plea. However, the record reveals that defense counsel made two other arguments urging the trial court to dismiss the armed violence charge. The first was based on counsel’s contention that any further proceeding was precluded by constitutional double jeopardy. The second was based upon the premise that any conviction of armed violence would later have to be vacated pursuant to People v. King (1977), 66 Ill. 2d 551. Although no great weight of authority can be said to support these positions they are not insupportable. We are reluctant to denounce as per se improper, a defensive posture which urges that contrary authority is incorrect and should be rejected.

In order to gain reversal based upon inadequacy of counsel a defendant is required to establish actual incompetence as reflected in the manner in which the attorney executed his duties as a trial attorney, which resulted in substantial prejudice, without which the outcome of the trial would probably have been different (People v. Carlson (1980), 79 Ill. 2d 564; People v. Goerger (1972), 52 Ill. 2d 403). The trial counsel’s decision to follow one strategy rather than another does not necessarily amount to incompetence. (See, for example, People v. Tennyson (1979), 75 Ill. App. 3d 341, 394 N.E.2d 418 (counsel’s decision to emphasize an insanity defense over other possible defenses was not an indication of actual incompetence).) Generally the appellate court will not second guess the tactical decisions made by a trial counsel. (People v. Hawk (1981), 93 Ill. App. 3d 175, 416 N.E.2d 717.) Even an error in judgment is insufficient to meet the tests set out in the Carlson case. (People v. Tolefree (1980), 85 Ill. App. 3d 844, 407 N.E.2d 604.) The exercise of judgment and adoption or rejection of available trial tactics does not establish actual incompetence (People v. Knowles (1979), 76 Ill. App. 3d 1004, 395 N.E.2d 706).

The general rule, then, is that the courts will not disturb a conviction on this basis unless the totality of counsel’s conduct indicates his actual incompetence. The conduct of counsel in this case does not lead to such a conclusion. He argued vigorously and obviously expended time researching the arguments which he presented to the trial court. That he did not in fact prevail is no indication of incompetence.

Defendant’s contention that counsel’s failure to contact and call as a witness the gas station attendant amounted to incompetence is equally without merit. In People v. Smith (1980), 81 Ill. App. 3d 764, 401 N.E.2d 1017, the appellate court rejected a defendant’s contention that his attorney had not provided a competent defense due to his failure to research the operation of the pistol allegedly used by defendant in the commission of an armed robbery. The evidence against Viens in this case was, to say the least, substantial. Even if defense counsel’s failure to call the gas station attendant can be said to amount to actual incompetence, there is no indication that this testimony would have been likely to produce a different result in this case.

III. RULE 402 ADMONITIONS

Defendant also contends that the trial court’s admonitions were inadequate, thus resulting in an unintelligent plea of guilty. At the time when the defendant entered his guilty plea to the charge of aggravated kidnaping, the trial court gave a lengthy admonition which fully complied with the provisions of Rule 402. No assertion is made that the trial judge failed to meet the requirements of this rule. Rule 402 provides in relevant part:

"In hearings on pleas of guilty, there must be substantial compliance with the following: (a) Admonitions to Defendant. The court shall not accept a plea of guilty without first, by addressing the defendant personally in open court, informing him of and determining that he understands the following: (1) the nature of the charge; (2) the minimum and maximum sentence prescribed by law, including, when applicable, the penalty to which the defendant may be subjected because of prior convictions or consecutive sentences; (3) that the defendant has the right to plead not guilty, or to persist in that plea if it has already been made, or to plead guilty; and (4) that if he pleads guilty there will not be a trial of any kind, so that by pleading guilty he waives the right to a trial by jury and the right to be confronted with the witnesses against him.” 81 Ill. 2d R. 402.

The defendant argues that although these admonitions are generally sufficient to assure the intelligent entry of a guilty plea as required by the United States Constitution (see Boykin v. Alabama (1969), 395 U.S. 238, 23 L. Ed. 2d 274, 89 S. Ct. 1709), more was required in this case. The defendant contends that where an individual enters into a guilty plea clearly expecting that by doing so he has precluded conviction on a further count, the trial judge must go beyond the provisions of Rule 402. The defendant claims that the trial court had a duty to inform him (1) that his guilty plea did not preclude a further prosecution on the charge of armed violence, (2) that his action did not limit the sentence to that for a Class 1 felony, (3) that a guilty plea to the aggravated kidnaping constituted, in effect, a judicial admission to the elements of the armed violence charge, and, (4) that such an admission could be used against him in the armed violence prosecution. Defendant cites no case law, nor did our research reveal any, to support this rather expansive interpretation of the constitutional requirement that guilty pleas be intelligently made.

We begin by noting that the trial judge, in open court and in the presence of defendant, stated that he would not accept the plea of guilty to aggravated kidnaping if it was made on condition that the other charge be dismissed. Defense counsel answered that the plea was not so conditioned and the judge continued with his admonitions. In light of this exchange it strains credulity to argue that Viens had no idea he could be tried and convicted for armed violence.

Implicit in defendant’s argument on this point is the assumption that the fact that the plea resulted in no tactical advantage establishes that it could not have been intelligently made. The law requires a knowing and informed plea; not a shrewd one. It appears from the record that this plea was knowingly and intelligently made. The Rule 402 admonitions were sufficient to meet the constitutional standard.

The Historical and Practice Notes to Rule 402 indicate that it was intended to meet the standards set forth in Boykin. (Ill. Ann. Stat., ch. 110A, par. 402, Historical & Practice Notes, at 531-32 (SmithHurd 1976).) The case law interpreting the rule has not seemed to indicate that the courts are bound by so broad a duty as defendant posits. In People v. Jenkins (1970), 128 Ill. App. 2d 351, 262 N.E.2d 105, the court held that no reversal was required due to a trial court’s failure to inform a defendant that his guilty plea could result in the suspension of his driver’s license.

“The provision of the statute requiring the court to advise a defendant of the consequences of his plea means those consequences which constitute punishment to be imposed by the court. People v. Thomas, 41 Ill. 2d 122, 242 N.E.2d 177 (1968). It is not necessary that a court advise a defendant of the innumerable side effects which are not part of a sentence to be judicially imposed.” 128 Ill. App. 2d 351, 355, 262 N.E.2d 105, 107.

Further, nothing in the Committee Comments or Historical and Practice Notes indicates that the legislature intended the statute to relate to any charge other than the one to which the defendant is pleading guilty. (Ill. Ann. Stat., ch. 110A, par. 402, Committee Comments, at 529 (Smith-Hurd 1976).) The admonition given in this case comported with Rule 402 and the mandate of Boykin. The trial court properly denied defendant’s motion to withdraw his plea.

IV. DOUBLE ENHANCEMENT

Defendant asserts that his conviction for armed violence cannot stand, claiming that it amounts to an improper double enhancement because a weapon used to establish that offense was also used to prove the predicate felony. He proposes two rationales in support of his position. We find neither one to be persuasive.

First, the defendant relies on People v. Haron (1981), 85 Ill. 2d 261. In Haron, the supreme court found that the General Assembly, in enacting the armed violence statute, did not intend that the presence of a weapon be used to enhance an offense from a misdemeanor to a felony which could then be used as a predicate for the charge of armed violence. “In our opinion the requirement of section 33A — -2 that there be the commission of a felony while armed with a dangerous weapon contemplates the commission of a predicate offense which is a felony without enhancement by the presence of a weapon.” People v. Haron (1981), 85 Ill. 2d 261, 278.

This case falls outside the rule propounded in Haron. The presence of a weapon did not serve to elevate the offense from a misdemeanor to a felony; at most it served to establish a more serious predicate felony (aggravated kidnaping), than would otherwise have been proved (kidnaping).

The other rationale urged by defendant is that contained in the United States Supreme Court decision in Busic v. United States (1980), 446 U.S. 398, 64 L. Ed. 2d 381, 100 S. Ct. 1747. There, defendant was found guilty of assaulting a Federal officer with a dangerous weapon, and of violation of a statute concerning the use or carrying of a firearm during the commission of a felony. 18 U.S.C. sec. 111 (1976); 18 U.S.C. sec. 924(c) (1976), respectively.

The United States Supreme Court held that the conviction on section 924(c) constituted an impermissible double enhancement of penalty. The court based its ruling on the fact that section 111 provided for enhancement of sentence where a dangerous weapon was used, and that legislative history indicated that section 924(c) was not intended to apply.

The Busic case is distinguishable from those before us. First, the statute construed there and our armed violence statute are facially different. Section 924(c) provides in relevant part:

“Whoever — -(1) uses a firearm to commit any felony for which he may be prosecuted in a court of the United States, or (2) carries a firearm unlawfully during the commission of any felony for which he may be prosecuted in a court of the United States, shall, in addition to the punishment provided for the commission of such felony, be sentenced to a term of imprisonment for not less than one year nor more than ten years.” (Emphasis added.) (18 U.S.C. sec. 924(c).)

The armed violence statute provides in relevant part:

“A person commits armed violence when, while armed with a dangerous weapon, he commits any felony defined by Illinois law.” (Ill. Rev. Stat. 1979, ch. 38, par. 33A — 2)

and:

“(a) Violation of Section 33A — 2 with a Category I weapon is a Class X felony, (b) Violation of Section 33A— 2 with a Category II weapon is a Class 2 felony or the felony classification provided for the same act while unarmed, whichever permits the greater penalty.” Ill. Rev. Stat. 1979, ch. 38, par. 33A — 3.

Facially, section 924 is a sentencing provision, while the Illinois armed violence statute creates a distinct felony. The armed violence statute does not, strictly speaking, provide an enhancement, but rather a further crime. Going beyond this facial distinction, the structure of the Illinois armed violence statute avoids the double enhancement problem which is clearly present in 18 U.S.C. sec. 924(c) (1976). Section 924(c) results in an “accumulation” of penalty which does not occur where a defendant has been found guilty of armed violence.

For example, the defendant in Busie was charged with assaulting a Federal officer. The fact that he committed that assault with a deadly weapon resulted in an increased sentence for the assault. Section 924(c) imposed a further penalty for the same condition (use of a deadly weapon). The effect was incremental. The assault statute in question provided for a maximum three-year sentence, or alternatively, where a deadly or dangerous weapon was used, a maximum 10-year sentence. Section 924(c) worked to provide an additional sentence of 10 years.

Such is not the case with the armed violence statute. The severity of the penalty for the underlying felony does not affect the penalty imposed for the armed violence charge. For instance, where the underlying felony charge is kidnaping, the use of a Category I weapon serves to allow a conviction for a Class X felony — armed violence. If the underlying felony is aggravated kidnaping with a deadly weapon, proof of the use of a Category I weapon allows for the conviction of a Class X felony, armed violence. The character of the underlying felony is irrelevant. Further, any possible injustice is avoided by our application of People v. Donaldson (1982), 91 Ill. 2d 164, to vacate the aggravated kidnaping charge.

V. SENTENCING

Finally, the defendant maintains that both of the sentences imposed are excessive in that his behavior was not sufficiently brutal or heinous to justify the imposition of an extended term. Section 5 — 5— 3.2(b)(2) of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 5—3.2(b)(2)), provides for the imposition of an extended sentence where an offense is accompanied by “exceptionally brutal or heinous behavior indicative of wanton cruelty.” The defendant contends that no such behavior was present in the case at bar. He notes that no serious physical injury was sustained by the victim, that the defendant showed concern for her physical comfort and that he offered her food and drink and stopped at a gas station to get her cigarettes.

Generally, a reviewing court has the authority to reduce a sentence only if a trial court has abused its discretion in imposing it. (People v. Cox (1980), 82 Ill. 2d 268.) A sentence which reflects both the gravity of the offense and the rehabilitative potential of the defendant will not be set aside. People v. Heflin (1978), 71 Ill. 2d 525, cert. denied (1979), 439 U.S. 1074, 59 L. Ed. 2d 41, 99 S. Ct. 848.

In this case, the sentence imposed was proper and reasonable. The facts on the record are similar to those presented in People v. Piontkowski (1979), 77 Ill. App. 3d 994, 397 N.E.2d 36. In that case, a defendant robbed a liquor store. Even though all the employees of the liquor store were cooperating, he herded them into a large walk-in beer cooler at the back of the store where he ordered the three male employees to lie face down on the floor, and instructed one female employee to bind the hands of her co-workers. Two of the employees testified at trial that the defendant had made reference to taking the female employee with him when he left. The defendant left alone through a rear door, however, leaving the employees tied up. The trial court imposed an extended sentence pursuant to section 5 — 5—3.2. The reviewing court rejected defendant’s contention that the fact that there had been no serious physical injury as a result of his action made the extended sentence excessive. The appellate court held that where an offense has been exacerbated by needless additional intrusions upon the physical integrity of the victim, an extended sentence is proper.

The record in the instant case reveals a series of actions by defendant which can reasonably be said to have terrorized and endangered the victim. In addition, testimony taken at the sentencing hearing indicated that the victim suffered substantial emotional trauma as well as some minor physical injuries. The courts may consider mental suffering in deciding whether to impose an extended sentence. Common experience teaches that the subjective pain of mental injury often exceeds that of physical injury and the intangible scars may be as lasting. (People v. Clark (1981), 102 Ill. App. 3d 414, 429 N.E.2d 1255.) The sentence imposed here was not improper, and accordingly we affirm on this point.

In conclusion, the conviction and sentence for the offense of aggravated kidnaping is vacated as dictated by our supreme court’s decision in People v. Donaldson (1982), 91 Ill. 2d 164. The judgment of the circuit court of Du Page County is, in all other respects, affirmed.

Affirmed in part, reversed and vacated in part.

SEIDENFELD, P.J., andHOPF, J., concur.

       We note that trial on this matter was had before the Illinois Supreme Court decided People v. Donaldson.


source: Caselaw Access Project

author: JUSTICE ALLOY

license: Public Domain

text:
    ELMHURST-CHICAGO STONE COMPANY, Plaintiff-Appellee, v. THE COUNTY OF WILL, Defendant-Appellant.—(Carl B. Bryant et al., Intervening Defendants-Appellants.)
    Third District
    No. 82—45
    Opinion filed October 27, 1982.
    Edward Petka, State’s Attorney, and Thomas R. Wilson, of Herschbach, Tracy, Johnson, Bertani & Wilson, both of Joliet, for appellants.

      James T. Bradley and James D. Grumley, both of Thomas, Wallace, Feehan and Baron, Ltd., of Joliet, for appellee.
   JUSTICE ALLOY

delivered the opinion of the court:

Plaintiff Elmhurst-Chicago Stone Company brought the instant action to challenge the Will County Zoning Ordinance as applied to certain of its Will County land. The company owned 15 acres of land in Will County and planned to construct and operate a concrete plant and an asphalt plant on the property. The property is in the midst of other property, some of which is owned by Elmhurst-Chicago, and which is zoned for quarrying and blasting. The Will County Board denied the company’s request for industrial rezoning which would have permitted the construction and operation of the plants. Thereafter the company filed this declaratory action against the county, seeking a declaration that the zoning ordinance as applied to the company’s land in question was null and void. It sought injunctive relief and an order directing the county to permit the proposed industrial uses. After certain nearby landowners were allowed to intervene, the case proceeded to trial before the trial judge, sitting without a jury. Extensive documentation was presented concerning the proposed plants and sites, and numerous witnesses testified during the lengthy trial. At the close of the trial, the court took the matter under advisement. Three days later, the court entered an oral interim order, finding the issues in favor of the plaintiff and against the defendants. At the same time, by oral direction, the court ordered the plaintiff to submit to it a plat showing the location of the two plants, a diagram or map showing the roads that would be used, and the plans and specifications for the two plants. The case was then continued for one month, for the presentation of this further evidence.

At the hearing on the additional evidence, an employee of Elmhurst-Chicago testified and produced the exhibits required by the trial court’s previous interim order. The evidence was admitted over the objection of the defendants, who argued that the evidence ought to have been produced earlier and that the trial court could not accept further proof, after close of the case. The court offered defendants a continuance for the purpose of permitting them to challenge the evidence, or for preparing for cross-examination with respect to it, but the court’s offers were refused. Thereafter, defendants objections were overruled, and the court admitted the evidence previously requested by it. A written judgment order followed. In the 13-page written judgment order, the trial court carefully set forth its findings and the basis for its decision in the case. After reviewing the salient facts and the applicable law, the court concluded:

“*** that the evidence is clear and convincing that the action of the County Board must be found to bear no real or substantial relation to the public health, safety or general welfare, and that such denial was arbitrary, capricious and unreasonable, and that it must be set aside by this Court as a matter of law.”

The court in its order also detailed the steps required of all parties with respect to compliance and the construction of the plants. Elmhurst-Chicago was required to apply for and comply with all permit requirements concerning the plants. The court also set forth roadways to be used for construction equipment and materials, and other pertinent details with respect to plant location and road repair. The county was permanently enjoined from attempting to enforce its zoning ordinance to prevent or hinder the proposed use of the property by the plaintiff. From the judgment, the defendants county of Will and the interveners now appeal.

The issues raised by the defendants focus on the court’s action in requiring and permitting further proof into the record (the plat, maps and plant specifications), after the trial had ended and an interim order had been entered. We find no reversible error and affirm. Whether to reopen a case for further proof is a decision resting within the sound discretion of the trial court, as is any decision on the order of proof. The court in Harper v. Johnson (1978), 61 Ill. App. 3d 190,193, 377 N.E.2d 1288, noted:

“ “*** It must be remembered that courts are instituted for the administration of justice, and that the matter of the order of proof and allowing a case to be opened up for taking further evidence rests in the sound judicial discretion of the court ***. [Citations.] Where the cause is tried before the court without a jury, as in the case at bar, greater liberty should be allowed in such matter and such leave should not be refused except for the most cogent reasons.’ ” (Citing to People ex rel. Boos v. St. Louis, Iron Mountain & Southern Ry. Co. (1917), 278 Ill. 25, 28-29.)

It is noted that in the instant case, the trial judge was sitting without a jury. This was also a declaratory and injunctive relief action, involving a question of zoning. At least one court has noted the particular usefulness. of such discretionary authority in permitting additional proof in actions for declaratory and injunctive relief. (Continental Illinois National Bank & Trust Co. v. Village of Park Forest (1972), 4 Ill. App. 3d 811, 817, 282 N.E.2d 167.) Others have noted the appropriateness of taking additional evidence where the court desires or needs such evidence in order to adequately and completely frame a decree. (Fiore v. City of Highland Park (1966), 76 Ill. App. 2d 62, 76, 221 N.E.2d 323, appeal after remand (1968), 93 Ill. App. 2d 24, 235 N.E.2d 23, cert. denied (1969), 393 U.S. 1084, 21 L. Ed. 2d 776, 89 S. Ct. 867.) As is evident from the above, whether to reopen proofs for taking of additional evidence is a decision resting within the wide discretion of the trial court.

In attacking the procedure used by the trial court in the instant case, the defendants correctly note that in an action challenging a zoning ordinance or zoning decision, the plaintiff has the burden of producing evidence on the specific uses and improvements proposed. (Sinclair Pipe Line Co. v. Richton Park (1960), 19 Ill. 2d 370, 167 N.E.2d 406.) The defendants then further argue that plaintiff herein failed to meet the burden imposed upon it, because it closed its case without introducing evidence as to the “specific matter of the contemplated bituminous asphalt plant and concrete plant.” Such argument ignores the record, as produced by the parties even prior to the acceptance of additional proof. There was extensive and very detailed testimony and exhibits presented by plaintiff concerning the plants, their location, their construction, their operation, and their installation. Detailed evidence was heard concerning the size of the plants, their essential components, their exact location, and their operation. Evidence concerning needed roadway alterations for construction and roadway patterns after installation, as well as landscaping plans and related matters, was also presented. Plaintiff Elmhurst-Chicago presented extensive and detailed evidence on the specific uses and improvements it proposed to construct on the property. It did so in the main presentation to the court at the trial. Defendants’ unsubstantiated, conclusory assertion to the contrary is not supported. The plaintiff met their burden of proof with respect to the specific uses and improvements planned. The obvious problem the court had with the evidence at the close of proof at trial was not a lack of evidence concerning the improvements and uses, but rather an overabundance of detailed evidence strung throughout the record. Essentially, the additional evidence (plat, map, and specifications) requested by the court afforded it a centralized and condensed version of the data and evidence in a compact, easily manageable form. As such, it was useful to the court in framing its decree and thereby clearly guiding the parties as to future enforcement. The request by the court for the evidence saved it a great deal of time, and made compliance and enforcement considerably more manageable.

We find no abuse of discretion in this action by the trial court on its own motion. While the more usual case involves a motion by one of the parties to open proof for additional evidence, we find no prohibition against the court ordering such, on its own motion, where a sound basis for the action appears in the record. In La Salle National Bank v. County of DuPage (1979), 77 Ill. App. 3d 562, 396 N.E.2d 48, a trial court’s action in ordering proofs reopened was held to be within its discretion and not an unfair interference. In the instant case, as noted, the additional documents admitted acted to put in final, condensed documentary form an extensive mass of oral and photographic evidence produced at trial. The court had determined, on the basis of the previous evidence, that the plaintiff was entitled to judgment. The additional evidence had obvious relevance and usefulness to the court’s task of framing a decree in the case. We find this to be a proper purpose, and given the duty of the court in framing a decree, we find it had the discretion to require further evidence in order to aid it in the task. We stress, however, our prior conclusion that the plaintiff’s evidence was adequate, without the additional evidence, to support the decision and judgment of the court.

We find no abuse of discretion in the trial judge’s action in ordering further evidence to be produced by plaintiff, in the circumstances of this case. Relevant to this finding is the lack of any prejudice shown to have been inflicted upon the defendants by the court’s action. It is noted that no objection was voiced by defendants at the time of the oral request to plaintiff by the trial court. Defense objections were voiced at the following hearing wherein the further evidence was presented. The defendants argued that had the evidence been presented earlier, they would have been able to use it to cross-examine plaintiff’s witnesses. Faced with this objection, the court offered to continue the hearing, to give defendants an opportunity to bring in witnesses for such cross-examination. The offer was refused by the defendants. The court even offered to have any other witnesses, of the defendant’s choosing, brought in at plaintiff’s expenses, for defense examination. This offer was likewise refused. If the defense wished to attack the evidence presented, or to utilize it to attack the plaintiff’s other evidence, the court presented it with the opportunity to do so, prior to the entry of final judgment. The opportunity was declined. Thus, not only was the additional evidence basically a compilation of other evidence presented previously, but the defendants were given an opportunity to meet the “new” evidence. We find no abuse of discretion, and even if there were error, it would be harmless under the circumstances in this case.

We have reviewed the other issues concerning the additional proof, and find in them no basis for reversal. The record fully supports the trial court’s decision striking the zoning ordinance as applied to plaintiff’s property, and we find no reversible error in the court’s action, on its own motion, in requesting and admitting additional proof, prior to framing the final written decree.

The decision of the circuit court of Will County is affirmed.

Affirmed.

BARRY, P.J., and SCOTT, J., concur.


text:
    STANLEY E. STEINKE, Ex’r under the Will of Oswald Steinke, et al., Plaintiffs-Appellees, v. ELLEN C. NOVAK, Defendant-Appellant.
    Third District
    No. 82—64
    Opinion filed October 27, 1982.

      Nancy Rink Carter and Craig M. Armstrong, both of Ottawa, for appellant.
    Dale F. Conde and Robert A. Calgaro, both of Pedderson, Menzimer, Conde, Stoner & Killoren, of Rockford, and Thomas Anderson, Jr., of Anderson & Anderson, of Earlville, for appellees.
   JUSTICE ALLOY

delivered the opinion of the court:

This is an appeal by Ellen C. Novak, defendant, from an entry of judgment on the pleadings by the circuit court in a suit to construe a will. Stanley Steinke and Eugene Steinke, executors under the will of Oswald Steinke, filed a complaint against Ellen Novak, their sister and a third-named executor of Oswald Steinke’s estate, for construction of parts of their father’s will. Oswald Steinke died testate in 1969, and his will provided, in pertinent part, that certain of his farm real estate should pass to his surviving spouse, for her lifetime. Upon her death, his executors were directed to sell the farm property within two years. However, in the will, Stanley Steinke was given the first right to purchase the farm real estate “at the appraised value approved for Inheritance Tax purposes.” The proceeds of any sale were to be divided equally between the three children of Oswald Steinke. In 1981, Ella Steinke, widow of Oswald Steinke, died. Thereafter, Stanley Steinke offered the full amount of the appraised value of the farm, approved for inheritance tax purposes, being $78,000, for the purpose of exercising his first right to purchase the farm, pursuant to his father’s will. Ellen Novak, as co-executor, refused to accept the offer and refused to sell the real estate.

Suit was then filed by Stanley and Eugene to construe that provision of the will within which Oswald Steinke providéd for disposition of the farm real estate. Subsequent to the filing of this action, Ellen Novak resigned as co-executor of the estate of Oswald Steinke. In her answer she alleged a breach of Stanley’s fiduciary duty as executor, a breach of his common law duty of good faith and fair dealing, and also that the will must be interpreted in light of changed circumstances since the testator’s death. The answer did, however, admit the allegations in the plaintiffs’ complaint.

Plaintiffs thereafter filed their motion for judgment on the pleadings, contending that there existed no material issue of fact, and that on the pleadings they were entitled to judgment as requested. The circuit court agreed, granting judgment to the plaintiffs. The court found the language of Oswald Steinke’s will to be clear and unambiguous in setting forth his intention that Stanley be given an option to purchase the farm at the approved inheritance tax appraised value. The court found no need, nor basis, for considering extrinsic evidence in construing the will. The court also concluded that the matters raised by answer would not affect the will construction, and, in any event, that there was no substantial question, based on the facts as admitted, that Stanley violated any fiduciary duty “by availing himself of his father’s directions.”

From the court’s decision and judgment, the defendant Ellen Novak appeals. She argues: (1) that the court erred in not permitting extrinsic evidence on the testator’s intentions; (2) that the subsequent event of inflation creates an ambiguity as to the intent of the testator; (3) that the court erred in that it only considered one clause in the will, and not the will in its entirety; and (4) that the court erred in ignoring the allegations of a conflict of interest.

The record discloses the following additional undisputed facts. Oswald Steinke died in April 1969, leaving a will. In pertinent part, the will provided:

“THIRD. I give and devise all of the real estate that I may own at the time of my death unto my wife, Ella Steinke, for and during the term of her natural life only. I direct that my said wife shall pay all taxes levied against said property, keep the premises fully insured from fire and windstorm and keep the buildings thereon in a fair state of repair. That upon the death of my said wife, I direct my Executors hereinafter named, shall sell said real estate within two years after her death. I do hereby give Stanley Steinke, personally and individually, the first right to purchase said real estate at the appraised value approved for Inheritance Tax purposes and that the proceeds from said sale shall be divided equally among my children, namely, Eugene Steinke, Ellen Novak, and Stanley Steinke, share and share alike, absolutely.
FOURTH: All the rest, residue and remainder of my estate, after the payment of funeral expenses, costs of administration, and all other expenses, I give and bequeath unto my said children, namely, Eugene Steinke, Ellen Novak, and Stanley Steinke, share and share alike, absolutely.
LASTLY: I do hereby make, nominate, constitute and appoint my said children, ***, to be Executors of this my Last Will and Testament ***. I do hereby *** empower said Executor to sell said real estate, either at public or private sale, as said Executors shall deem best, without the sanction or approval of any Court, after they have first offered said real estate to Stanley Steinke as herein provided, ***.”

After Oswald Steinke’s death, the executors, on June 8, 1970, filed an inheritance tax return with the court, wherein the farm real estate, consisting of 130 acres, was valued at $78,000. There is no dispute that the approved appraised value, for inheritance tax purposes in the Oswald Steinke estate, was $78,000. No objection to that figure was raised by any of the executors, when the return was filed.

In 1981, Ella Steinke, Oswald’s widow and the life tenant under his will, died. After her death, Stanley Steinke, exercising his first right of purchase under the third paragraph of his father’s will, offered $78,000 for the purchase of the real estate in the estate. When Ellen Novak, as co-executor, refused to consent to such sale, the instant action was commenced by the brothers. Their complaint alleged the facts previously set forth, and requested the court to construe the will of Oswald Steinke, in its disposition of the real estate. The factual allegations of the complaint were admitted in Ellen Novak’s answer, but additional matter was also raised. Novak alleged breaches of fiduciary duties by Stanley Steinke in exercising his right of first purchase under the will, and also she alleged that the will should be interpreted in light of changed conditions since Oswald Steinke’s death. The court found no ambiguity in the pertinent will provisions, and no basis for the allegations made by Ellen Novak in her answer. Judgment for the plaintiffs and against Ellen Novak was ordered.

The rules with respect to will construction are well known and of long-standing applicability. Courts of law have limited powers when construing wills, and where the intent of the testator is clear from the language used in the will, courts are not permitted to change or. alter that intention, under the guise of interpretation. (Stern v. Stern (1951), 410 Ill. 377, 384-85, 102 N.E.2d 104; Fuller v. Fuller (1924), 315 Ill. 214, 146 N.E. 174.) The primary purpose in any will construction is to ascertain the intention of the testator, and where his own words are clear as to his intention, they prevail. Courts are not permitted to speculate as to what may have been the intentions of a testator, had he survived and been aware of a particular contingency occurring after his death. (Gridley v. Gridley (1948), 399 Ill. 215, 229, 77 N.E.2d 146.) Where the words of the testator are clear and unambiguous, extrinsic evidence is not admitted to vary those words. (Peek v. Drennan (1951), 411 Ill. 31, 38, 103 N.E.2d 63; In re Estate of Rettig (1981), 100 Ill. App. 3d 653, 655, 427 N.E.2d 235.) Words used in a will are to be given their ordinary and natural meaning, but where technical terms are used, they are presumed to be used in their technical meaning. Gridley v. Gridley (1948), 399 Ill. 215, 223.

With these rules in mind, we examine the language of Oswald Steinke’s will. The will provides that the real estate is to pass to Ella Steinke, for her lifetime, and then the property is to be sold, with the proceeds divided between the three children. However, Stanley Steinke is specifically given the first right to purchase the real estate, and the purchase price is specifically set. It is to be the approved and appraised value for inheritance tax purposes. In the event Stanley did not exercise his right to purchase, the will directs the executors to sell the property, at public or private sale. We find no ambiguity in the will’s language with respect to disposition of the real estate. The will clearly and unequivocally gives a preference to Stanley Steinke, with respect to the purchase of the real estate, and it sets forth a formula, for arriving at a clearly ascertainable price, i.e., the value set for inheritance tax purposes. Such a price is clearly distinct from the method set forth, in the event Stanley chose not to exercise his right of first purchase. In that event, the real estate was to be sold by the three executors at public or private sale, yielding a market value it must be presumed.

The will is specific and unambiguous in directing the disposition of decedent’s real estate. There was no need for any extrinsic evidence to aid in ascertaining Oswald Steinke’s intentions. The court correctly so held.

The defense argues that the court erred in considering only the third paragraph of the will, thus ignoring what is alleged to be the general intent of the testator that his children be treated equally. When the will, in its entirety, is examined, it is clear that Stanley was singled out for some preferential treatment. By the third paragraph he, and not his brother or sister, is given that first right to purchase. In addition, the value set is not market value, but rather the value as appraised for inheritance tax purposes. Furthermore, this preferential treatment as regards the real estate is reflected also in the last paragraph of the will, wherein the testator empowers the executors to sell the property, “after they have first offered said real estate to Stanley Steinke as herein provided ***.” The will, in its entirety, indicates a definite distinction in treatment between the children. That the testator provided for an equal distribution of the proceeds of sale to Stanley, and an equal distribution of the residual estate, does not contradict the preferential treatment shown Stanley. We find no inconsistency between the third paragraph of the will and the other provisions, such as to raise an ambiguity as to the testator’s intentions. Those intentions are clearly expressed, and the court’s judgment is consistent with the intentions of the will. One can speculate endlessly about the testator’s beliefs with respect to his own life expectancy, his wife’s life expectancy, or the future of the farm real estate market. That the testator may have changed his intentions, could he have foreseen the future, is not a sufficient basis for finding an ambiguity, where the words used are clear and unambiguous.

Similarly, we reject a related contention that inflation occurring between 1969 and 1981 in this country creates an ambiguity in the clear language of Oswald Steinke’s will. While courts in Illinois have approved consideration of subsequent events in construing an ambiguous will, none have found that inflation subsequent to the will is a sufficient basis for creating an ambiguity in a will that is otherwise clear and definite. To do so would be to open the floodgates to massive probate litigation. There was no ambiguity in this will, and we will not create an ambiguity merely because the value of the farm property increased dramatically between its appraisal for estate purposes and the time of its sale.

The final contention of the defendant is that Stanley Steinke is in an inherent conflict of interest with the other beneficiaries under the will. The basis for this argument is the allegation that Stanley was acting for his own benefit when the appraised value was set for inheritance tax purposes. It is clear from the will that Oswald Steinke wanted his son Stanley to have the option to purchase the real estate and that he wanted Stanley to be executor along with his brother and sister. The option to purchase was created in the will, and Stanley was following the scheme set forth in the will when he exercised the option. We see no basis in his actions for finding a breach of fiduciary duties. With respect to any conflict of interest on the appraised value, there is no allegation or suggestion that at the time that value was set, being 1969, it was at all unfair or unrepresentative of the value of the property. Furthermore, all three executors were needed for approval of that tax return, and no objection was made by anyone at the time of the estate’s action. There is no allegation or basis in the admitted facts for finding a material question of fact on any issue of impropriety on the part of Stanley Steinke.

The trial court correctly entered judgment on the pleadings. The allegations of the complaint were admitted, and they, along with the will, required the judgment entered by the trial court. The matters raised by answer were either insufficient to raise a question as to the will construction, or not relevant to construction of the will, which was clear and unambiguous on its face.

Judgment for the plaintiffs entered by the La Salle County circuit court is affirmed.

Affirmed.

STOUDER and HEIPLE, JJ., concur.


author: JUSTICE HEIPLE

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LAWRENCE H. CARROLL, Defendant-Appellant.
    Third District
    No. 82-193
    Opinion filed October 27, 1982.
    Roberg Agostinelli and Stephen H. Omolecki, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    John A. Barra, State’s Attorney, of Peoria (John X. Breslin and Patricia Hartmann, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE HEIPLE

delivered the opinion of the court:

This appeal presents an interesting paradox. The defendant claims that the trial court erred by conducting his trial without him. Thus, the proceedings are invalid and a new trial should be granted. On the other hand, the defendant argues that the State’s evidence presented at the allegedly invalid trial was not sufficient to convict the defendant beyond a reasonable doubt. According to the defendant, this entitles him to an outright reversal. This duplicitous argument is based on the following facts.

The defendant was convicted of reckless driving, fleeing and attempting to elude the police, speeding and operating a motorcycle without lights, glasses or license plates. The defendant missed his first trial date and a bench warrant was issued. He also failed to appear on the second date, so a bench trial was had without him. The defendant charges that this was error since there is no affirmative showing that the court admonished the defendant that trial could proceed in his absence. (Ill. Rev. Stat. 1979, ch. 38, par. 113 — 4(d).) The State confesses error on this point and we agree. Because the court failed to give the required warnings, it cannot be said that the defendant waived his right to be present at trial. Therefore the defendant is entitled to a new trial. We note that the defendant also claims the court erred in conducting the trial in absentia without complying with section 115— 4.1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, par. 115 — 4.1). This provision explicitly applies only to noncapital felonies and is not controlling here since the defendant was charged with misdemeanors.

The defendant next asserts that if we reverse and remand for a new trial, we must also comply with his request to review the sufficiency of the evidence. The defendant claims the evidence was insufficient to prove him guilty of reckless driving. The defendant also argues that the State failed to identify the defendant as the same person who committed the offenses.

Indeed, paradoxically, if there is any flaw in the identification, it was due in whole or in part to the defendant’s absence from the trial. In any event, the best way to remedy such alleged flaw is to remand for a new trial. Under these circumstances, we decline to review the evidence in this case.

In support of his request that we review the evidence, the defendant cites People v. Taylor (1979), 76 Ill. 2d 289, which held that a court risks subjecting a defendant to double jeopardy by remanding a case for a new trial without first deciding a defendant’s claim that the evidence was insufficient. While Taylor correctly states the law in Illinois, we find that it is distinguishable from the facts in the instant case.

In Taylor, the defendant was present at trial and had the opportunity to confront the witnesses against him and testify on his own behalf had he wished to do so. Here, the defendant was denied those rights and that is the evil we seek to cure by granting a new trial. We fail to see how the defendant can assert the bar of double jeopardy based on proceedings in which the adversary system was reduced to a nullity. We do not read Taylor as requiring us to review the evidence until there has been a trial in the defendant’s presence, or a trial in absentia where the defendant was given the warnings required by law. Where there has been a violation of the defendant’s right to be present which renders the lower court proceedings a mere pretense of a trial, it is enough that we reverse and remand for a new trial.

Reversed and remanded.

BARRY, P.J., and SCOTT, J., concur.


author: PRESIDING JUSTICE BARRY

text:
    PEORIA SAVINGS AND LOAN ASSOCIATION, Plaintiff-Appellee, v. AMERICAN SAVINGS ASSOCIATION et al., Defendants-Appellants.
    Third District
    No. 82-514
    Opinion filed October 18, 1982.
    Rehearing denied November 30, 1982.

      Stephen C. Sandels, John R. Doyle, and Steven H. Hoeft, all of McDermott, Will & Emery, of Chicago, and David Mueller, of Cassidy & Mueller, of Peoria, for appellants.
    Lyle W. Allen, of Heyl, Royster, Voelker & Allen, and David B. Radley, of Baymiller, Christison & Radley, both of Peoria, for appellee.
   PRESIDING JUSTICE BARRY

delivered the opinion of the court:

This interlocutory appeal is from an order of the circuit court of Peoria County granting a preliminary injunction to halt the merger of Peoria Savings and Loan Association with American Savings Association.

In July of 1981, American Savings Association was created by the merger of Citizens Savings of Belleville, Illinois, and Quincy People Savings and Loan Association of Quincy, Illinois, into American Savings and Loan Association of Springfield, Illinois. American has assets of approximately $900 million and has a net worth of about $22 million with 28 branch offices in western and central Illinois. During the same period of time, Jack Shinn, the executive vice-president of American, was also negotiating the possible acquisition of the Champaign Loan and Building Association of Champaign, Illinois, and the Mt. Vernon Savings and Loan Association of Mt. Vernon, both of which were in serious financial trouble. Shinn also discussed the possibility of merger with Samuel McFarland, president of Peoria Savings and Loan Association, and on August 4, 1981, Shinn presented to Peoria a plan for a proposed merger between Peoria and American. Peoria has assets of approximately $155 million, net worth of $11.2 million, and three branch offices in the Peoria area. Shinn was acting in accordance with the philosophy that savings and loan associations can best survive the current economic depression of their industry by diversifying and expanding market areas through mergers that would increase the size of the main association, that would expand into other major retail markets, that would permit “economies of scale,” and that would generate profits from new business to offset the losses resulting from current high interest rates and the mismatch of short-term high-cost liabilities (deposits) with long-term low-yielding assets (mainly residential mortgage loans). At the time of the proposed merger, American was averaging $700,000 in monthly losses while Peoria was averaging approximately $150,000 monthly losses.

The merger proposal stated that tentative merger agreements had been entered into between American and two other savings and loan associations, one with assets of $150 million, a net worth of V-fe percent and nine retail outlets, and the other with assets of $100 million, a net worth of two percent, and four retail outlets. These were the Mt. Vernon and Champaign associations. American indicated that it was negotiating with the Federal Savings and Loan Insurance Corporation to obtain financial assistance as a condition for these mergers. The Peoria merger proposal included, “American Savings will go forward with these merger plans only with adequate F.S.L.I.C. assistance.” The Peoria Board of Directors approved the proposed merger agreement on November 17, 1981, and the agreement was signed by McFarland, Peoria’s president, the next day. The executed agreement did not mention the proposed Mt. Vernon-Champaign mergers. A key provision of the agreement is that entitled “Conditions of Closing.” “From the date hereof to the Closing, which for the purposes hereof shall mean the date on which the Certificate of Merger is issued by the Office of the Savings and Loan Commissioner of the State of Illinois and is recorded in the Office of the Recorder of Deeds of Sangamon County, Illinois and Peoria County, Illinois, there shall not have been any material adverse change in the financial condition or results of operations of any of the Merging Associations ***.” (Emphasis added.)

Joint application for approval of the merger was submitted to the Illinois Savings and Loan Commissioner and to the Federal Home Loan Bank Board. The Illinois Commissioner approved the merger on December 22, 1981, but Federal approval was delayed until March 4, 1982. In the meantime, on November 30, 1981, American entered into merger agreements with the Mt. Vernon and Champaign associations, and applications for these two mergers were filed with both the State and Federal agencies. Final approval of these mergers was received on December 28, 1981, and the certificates of merger were recorded on December 31,1981.

During the course of negotiations with Mt. Vernon and Champaign, it was learned that financial assistance in the form of monetary aid was no longer available for supervisory mergers. However, the FSLIC was willing to permit the use of “purchase accounting” as a form of assistance where a weaker association merges into a stronger one. Under purchase accounting, American can discount the newly acquired assets of the Mt. Vernon and Champaign associations to market value and can amortize the markdown as good will over a period of time up to 40 years. Since the amortization period is longer than the average repayment time of existing loans, the net effect is to show an increase in income during the early years of the merger while spreading expenses over the longer life of the good will, thereby improving the profit position of American. The applications for approval of the Mt. Vernon-Champaign mergers were prepared with the help of Peoria’s chief financial officer, Roger Kilpatrick. These applications included projections based upon the combined financial data of Peoria and American along with data showing the result of the additional merger with Mt. Vernon-Champaign. Thus the applications were based on projections that presupposed the completion of the merger of Peoria with American.

On February 8, 1982, the board of directors of Peoria met in a special session and approved a resolution to withdraw from the merger with American. The resolution recited that just prior to its merger with American, the Champaign association had a net worth of slightly under $30,000 and the Mt. Vernon association had a net worth of slightly under $600,000; that the two associations had combined net losses for the month of December of $700,000 which would produce a negative net worth within two months; that American had acquired the assets and assumed the liabilities of the two associations without any assistance from Federal agencies; that the acquisition of the two associations without assistance constituted a material adverse change in the financial condition of American; that American cannot for long absorb the substantial losses which all three associations have been sustaining; and that to continue the proposed merger would not be in the best interest of Peoria, its shareholders and depositors, its employees and the community in which it operates.

Peoria then attempted to withdraw the application pending before the Federal Bank Board and also requested the Illinois Commissioner to rescind his December 22 approval of the merger. Both agencies refused Peoria’s request, and Federal approval of the merger was given' on March 4, 1982. Peoria immediately filed suit for an injunction to prevent the recording of the merger certificate. A temporary restraining order was entered ex parte on March 12, and thereafter a three-week trial was held. On July 1, 1982, the court ordered that a preliminary injunction issue enjoining American from recording the merger .documents and from taking any further steps toward consummation of the merger. American then perfected this interlocutory appeal pursuant to Illinois Supreme Court Rule 307 (87 Ill. 2d R. 307).

Initially American contends that Peoria failed to establish the prerequisites for the issuance of a preliminary injunction. It has been held that a preliminary injunction will not be issued unless there is a probability of success on the merits and a need to preserve the status quo in order to prevent an irreparable injury for which there is no adequate remedy at law. (McErlean v. Harvey Area Community Organization (1972), 9 Ill. App. 3d 527, 292 N.E.2d 279.) This court has, in addition, required a showing that the threatened injury would be immediate, certain and great if the injunction were denied, while the loss or inconvenience to the opposing party would be relatively small if it were granted, and also a showing that granting the injunction will not have an injurious effect upon the general public. (Illinois Housing Development Authority v. Arbor Trails Development (1980), 84 Ill. App. 3d 97, 404 N.E.2d 1097.) The order in the instant case must be examined in light of these requirements.

The trial court expressly found that Peoria is likely to prevail on the merits of this cause and that American sustained material adverse change in its financial condition as a result of its mergers with Mt. Vernon and Champaign, which were accomplished without the consent of Peoria’s board of directors, who were not provided with written notice or financial information. The court also found that Peoria would suffer irreparable harm if the merger were completed since Peoria would cease to exist as an entity as soon as the certificate was recorded and, therefore, would have no adequate remedy at law. Implicit in these findings is a determination that American’s defenses of waiver, estoppel and failure to pursue administrative remedies would not be reasonably likely to prevail.

The necessity of preserving the status quo to prevent the termination of Peoria’s existence would seem to satisfy the requirement that irreparable harm be shown. American urges that it offered “in open court” to permit Peoria to maintain its identity as a separate division of American during the course of the litigation. However, this seems only to be an offer to keep separate books while using Peoria’s assets. In the record is defendant’s exhibit No. 35 where the regional director of the Federal Home Loan Bank Board stated in his January 19, 1982, report that American (after its merger with Peoria) would have a projected 29 month survival time but with the proposed merger of American-Peoria with Mt. Vernon-Champaign, using the current rate of loss experienced individually by the associations, the merged entity would survive only 20-24 months before net worth would be depleted. We think this is sufficient evidence to support a finding that a merger of assets would harm Peoria irreparably, even if separate books and a separate identity were maintained during the course of the litigation of this cause. By the time final judgment is entered, Peoria might well have no assets remaining to be returned. Thus we believe the “irreparable harm” requirement was met in this case, regardless of American’s oral offer to preserve Peoria’s identity during litigation.

Furthermore, since the filing of the certificate would terminate Peoria’s existence, there can be no adequate remedy at law because there would be no entity to bring a legal action. The applicable statute provides: “When duly recorded, the certificate of merger is conclusive evidence *** of the merger and of the correctness and validity of all proceedings in connection with the merger.” (Ill. Rev. Stat. 1981, ch. 17, par. 3167(c).) Accordingly, once the merger certificate is recorded, Peoria would have no standing to pursue a legal remedy and, in the face of “conclusive evidence” of validity of the merger, Peoria would have no legal basis for asserting a cause of action. The legal consequences of the recording of the merger certificate fulfill the requirement that the threatened injury to Peoria be immediate, certain, and great as compared to the loss or inconvenience to American. The evidence indicates that American has been denied use of the assets of Peoria to improve its financial condition, but its existence is not immediately threatened by postponement of the merger.

American also contends that Peoria failed to sustain its burden of establishing that there would be no adverse effect upon the general public if the injunction were granted. We disagree. We think the trial court could reasonably infer that there would be no harm to the general public from the fact that both American and Peoria are private corporations, as opposed to governmental, and that both will continue to exist and serve their respective communities if the status quo if maintained. Such an inference is sufficient to meet the “no adverse effect on the public” requirement.

The real heart of this case is contained in American’s contentions relating to its defenses, all of which are really part and parcel of the argument that the preliminary injunction should not have been issued because Peoria failed to establish a reasonable likelihood of success on the merits of its case. It is important to keep in mind that the purpose of a preliminary injunction is to preserve the status quo until the trial court can have an opportunity to consider and decide the merits of the case, and in ruling on an application for such relief, controverted facts are not determined and the merits are not decided. (Longergan v. Crucible Steel Co. (1967), 37 Ill. 2d 599, 299 N.E.2d 536.) In a case involving an interlocutory appeal from the denial of a motion for preliminary injunction, the reviewing court stated:

“The only question reviewed in such an appeal is whether there was a sufficient showing to sustain the order of the trial court granting or denying the relief sought. [Citations.] Therefore, in the case before us, we can decide only whether, prima facie, plaintiffs showed the trial court that there was a fair question as to existence of the rights claimed; that the circumstances lead to a reasonable belief that they probably will be entitled to the relief sought, if evidence sustains their allegations; and that matters should be kept in status quo until the cause could be decided on its merits.” Schwalm Electronics, Inc. v. Electrical Products Corp. (1973), 14 Ill. App. 3d 348, 352, 302 N.E.2d 394, 397-98.

In the instant interlocutory appeal, we may not decide controverted issues of fact or determine the merits of Peoria’s breach-of-contract claim, but rather "we must consider whether the trial court abused its discretion in finding that there was a reasonable likelihood of Peoria succeeding on the merits of its case.

The first defense asserted by American is that Peoria’s cause of action is barred for failure to exhaust its administrative remedies. American reasons that Peoria should have sought administrative review of the decisions of the Illinois Savings and Loan Commissioner approving the merger application and then refusing to rescind that approval.

The determining factor here is that Peoria is not challenging the action of the Commissioner in approving the merger of American and Peoria. That approval was given on December 22, 1981. American’s acquisition of the Mt. Vernon and Champaign associations occurred on December 28, 1981. It was this event occurring without “adequate FSLIC assistance” as promised, which caused the alleged “material adverse change” in American’s financial condition, and it was this event which apparently triggered Peoria’s decision to withdraw from the merger. The fact that Peoria asked the Commissioner to rescind his approval does not signify an election of administrative remedies by Peoria but rather indicated an effort to revoke its participation in the joint application for merger. Peoria undertook comprehensive action to extract itself from an undertaking that seemed unwise and inadvisable, obviously moving on “all fronts” to halt the merger.

American has cited such cases as Kankakee Federal Savings & Loan Association v. Becker (1961), 23 Ill. 2d 477, 179 N.E.2d 22, as authority for its argument that administrative review should have been pursued, but those cases are distinguishable because they challenge the correctness of the administrative rulings, while Peoria does not. Peoria is seeking judicial relief for an alleged breach of contract by American which occurred after the Commissioner’s administrative action was complete. We conclude that Peoria had no basis for seeking administrative relief.

American’s next contention is that Peoria is barred from withdrawing by the doctrines of waiver and of equitable estoppel. American says that Peoria knew that the Mt. Vernon-Champaign merger was conditioned upon American’s merger with Peoria, that Peoria had full knowledge of the financial ramification of all the mergers, and yet Peoria voiced no objections to the Mt. Vernon-Champaign mergers prior to its decision to withdraw. Under the doctrine of equitable estoppel, where one party fails to assert a contract right and the other party construes the silence as consent and changes position in reliance thereon, the party who remained silent is estopped to assert that contractual right later. (E.g., Jurek v. Smuczynski (1965), 61 Ill. App. 2d 426, 209 N.E.2d 850.) American claims that it completed the mergers with Mt. Vernon-Champaign in reliance upon completion of the American-Peoria merger, and that Peoria knew American was acting in reliance on its merger because Peoria’s chief financial officer, Kilpatrick, helped prepare the financial reports and other merger documents which reflected the intended American-Peoria merger. Also, both Kilpatrick and Peoria’s president, McFarland, were informed in early December 1981 that the Mt. Vernon-Champaign mergers were proceeding with the use of purchase accounting. These facts are asserted as being sufficient to estop Peoria from claiming that American’s actions amounted to a breach of contract.

American advances a parallel argument as to the applicability of the doctrine of waiver. It is insisted that Peoria waived any right to complain about the Mt. Vernon-Champaign merger causing a material adverse change because Peoria’s conduct prior to the Mt. VernonChampaign merger might reasonably be construed as showing that it did not intend to assert its right to terminate its merger with American on that basis. (See, e.g., Business Development Services, Inc. v. Field Container Corp. (1981), 96 Ill. App. 3d 834, 422 N.E.2d 86.) Because members of Peoria’s management worked on the Mt. VernonChampaign merger, American argues that Peoria intentionally waived its right to claim that American experienced a material adverse change due to the Mt. Vernon-Champaign merger. American relies upon the legal theory that the knowledge of the officers and agents of a corporation is to be imputed to the corporation itself.

Contained within these two issues are numerous disputed factual questions. For example, the estoppel defense is predicated on the assumption that Peoria knew that American would not have undertaken the Mt. Vernon-Champaign mergers without assurance that the Peoria merger would be completed. However, that is really a much disputed fact. On the basis of the record, we think it most unlikely that Peoria had knowledge that the subsequent mergers were conditioned upon the completion of the Peoria merger. Although it would have been a fairly simple matter to include an express provision to that effect in the merger proposal, no reference to any other mergers was made a part of the agreement presented to Peoria. In addition, the estoppel argument also assumes that Peoria had full knowledge of the financial effect the Mt. Vernon-Champaign merger would have upon the consolidated American association. Much of the evidence heard by the trial court involved that very issue, and it was not at all clear that Peoria or its agents in fact fully understood the effect of the subsequent mergers particularly without direct monetary aid from the Federal government. On February 9, 1982, Shinn, American’s chief executive officer, provided McFarland, president of Peoria, with copies of the information in the Champaign and Mt. Vernon merger applications, including five-year projections using Peoria’s financial data. The cover letter stated, “we regret that this information had not previously been made available to you; however, there was no attempt to keep this information from you. It was merely an oversight.” Obviously the entire question of how much knowledge Peoria is charged with has no clear-cut answer.

In addition to the disputes just discussed, American insists that Peoria and its board of directors are chargeable with everything that was known to Kilpatrick, Peoria’s financial officer who was assigned by Peoria to assist American in the preparation of the necessary merger documents for the Mt. Vernon-Champaign merger as well as for other financial projects. Peoria insists that Kilpatrick was a “loaned employee” who had very limited assignments while working for American. Peoria argues that under the “loaned servant” doctrine, Kilpatrick became the employee of American, not Peoria, and thus that Peoria should not be held to have notice of all the information which Kilpatrick had access to in the course of his employment at American. Peoria also argues that American failed to establish that Kilpatrick had sufficient information to determine that the merger would cause a material adverse change in the financial condition of American. American disagrees. These are both matters for resolution after a trial on the merits. It seems clear to us that the evidence was sufficiently contradictory to raise issues of credibility, and that there was sufficient evidence to support a determination that Peoria is likely to succeed on the merits. We cannot say that the trial court abused its discretion on this point.

The final contention of American also related to the question of whether Peoria had a reasonable likelihood of success on the merits, although American’s argument is framed solely in terms of the merits themselves. American argues that its financial condition did not in fact suffer a material adverse change as a result of the Mt. VernonChampaign merger, if proper consideration is given to the depressed condition of the savings and loan business and to the advantages of obtaining a broader geographical area for marketing operations. American also insists that authorization to use purchase accounting was a form of financial assistance equivalent to monetary aid and well within the meaning of the term “financial assistance” as used in documents furnished by American at the time of the original merger proposal. We cannot agree. While purchase accounting permits the long-term write-off of the loss in market value of an association’s assets, this merely prevents the immediate insolvency of the firm but does not add any money or other property of value to the firm’s business. There was considerable evidence that use. of purchase accounting was not the form of financial assistance which Peoria would have considered acceptable if it had been stated explicitly at the time the merger proposal was discussed. We believe, as apparently did the trial court, that Peoria has a reasonable likelihood of success on the question of whether it had knowledge that purchase accounting was an alternative form of financial assistance expected in the Mt. Vernon-Champaign mergers.

We agree with Peoria that American’s stance in this entire cause has been based upon its contention that it would never have merged with Mt. Vernon-Champaign without Peoria’s financial strength. That position presupposes that without Peoria there would be a material adverse change in American’s financial condition as a result of the merger with the two weaker associations. The evidence is quite strong that the Federal agency considered the impact of the Mt. Vernon-Champaign merger to have an adverse effect upon American. In addition to the decrease in American’s survival time, during the first month after the Mt. Vernon-Champaign merger American lost nine percent of its net worth, and experienced sharp decreases in the ratio of net worth to assets and net worth to liabilities. Also, there was testimony by Shinn that he would have stopped the Mt. VernonChampaign merger without Peoria, and testimony from several expert witnesses that American had indeed experienced a material adverse change in financial condition.

American also argues that Peoria should not be able to assert such facts as a decline in net worth ratios or survival time as reasons for withdrawal from the merger, but that Peoria should be limited to the reasons stated in its February 8, 1982, resolution. The stated reason for withdrawal was the material adverse change in American’s financial condition. We believe Peoria has continued to assert only one reason for withdrawal. The factual matters which American finds objectionable are, in our view, relevant to establish that a material adverse change in American’s financial condition did in fact occur.

Without going into further detail, we think it clear that a breach of contract can, in all reasonable likelihood, be established by Peoria. The test in this case, as indicated previously, is whether the trial court abused its discretion in determining that Peoria has a reasonable likelihood of being successful in a trial on the merits. The test is not whether the findings of the trial court were contrary to the manifest weight of the evidence. Using the proper test, we conclude that the trial court’s findings and order were not erroneous and should be affirmed.

We also note that American did not file the transcript of proceedings as a part of the record on appeal within the time allowed. In such a situation, the reviewing court is required to assume that the evidence presented in the trial court supported the rulings of the trial court. (Flynn v. Vancil (1968), 41 Ill. 2d 236, 242 N.E.2d 237.) However, in the exercise of our judicial discretion, we have elected to deal with the issues argued on appeal, rather than resort to a perfunctory affirmance, because, obviously, we believe the issues of this case are of sufficient importance to require our- full consideration. However, we affirm the trial court in any event.

Affirmed.

STOUDER and HEIPLE, JJ., concur.