author: PRESIDING JUSTICE McGLOON

text:
    ALFRED SOLDANO, d/b/a Chesterfield Lounge, Plaintiff-Appellant, v. ILLINOIS LIQUOR CONTROL COMMISSION et al., Defendants-Appellees.
    First District (1st Division)
    No. 83—2437
    Opinion filed February 4,1985.
    Rehearing denied March 21,1985.

      Julius Lucius Echeles, of Chicago, and Edward A. Antonietti, of Antonietti & Culotta, of Calumet City, for appellant.
    Neill Hartigan, Attorney General, of Springfield (Karen Konieczny, Assistant Attorney General, of Chicago, of counsel), for appellees.
   PRESIDING JUSTICE McGLOON

delivered the opinion of the court:

Plaintiff appeals an order of the circuit court affirming the revocation of his liquor license. On appeal, plaintiff contends (1) the order of revocation was based in part on a violation of an ex post facto law and the violation of this law cannot be used as ground for revocation, and (2) the finding that plaintiff allowed solicitation for prostitution is against the manifest weight of the evidence.

We affirm in part, and reverse in part and remand.

On October 15, 1982, plaintiff Alfred Soldano received notice of a hearing on a complaint issued by the Calumet City police department regarding liquor license violations. Plaintiff was charged with violations of sections 3 — 38 and 3 — 40 of the Calumet City Municipal Code, which prohibit solicitation of drinks and solicitation for prostitution. Plaintiff was also charged with violating sections 11 — 14, 11 — 15 and 11 — 17 of the Criminal Code of 1961 (Ill. Rev. Stat. 1983, ch. 38, pars. 11 — 14, 11 — 15 and 11 — 17). The Calumet City liquor commission held a hearing on the charges on November 12, 1982.

At the hearing, Officer John Wilkens testified he went to the Chesterfield Lounge on July 16, 1982, at about midnight to check for illegal activity. He was approached by Sharon DeMoff, who asked him if he would like to buy her a drink. At the request of DeMoff and the bartender, Patricia Coffel, Wilkens bought DeMoff three or four more drinks. DeMoff also asked Wilkens if he would like to buy her a bottle of champagne for $45. Wilkens bought the champagne, and DeMoff and the bartender drank it. Wilkens asked DeMoff why the champagne was so expensive. DeMoff said Wilkens “would get a blowjob along with it” and she would do it when she was finished dancing on stage. Wilkens further testified that while he was seated at the bar, he observed a male employee directing females to sit by men who came into the bar.

Sharon DeMoff, called as a witness for plaintiff, testified she worked as a go-go dancer at the Chesterfield Lounge. Part of her job was to furnish conversation and company for male customers who bought her drinks. Employees were not allowed to date patrons and prostitution was not permitted at the lounge. Regarding her encounter with Wilkens, she testified he bought her two drinks and a bottle of champagne. Wilkens offered to buy her the cocktails. Before buying the champagne, Wilkens asked whether he would get anything with it. DeMoff told him she was not a prostitute and he was entitled to her conversation only.

Patricia Coffel, the bartender, testified Officer Wilkens was seated at the bar and motioned for DeMoff to sit by him. He ordered several cocktails and a bottle of champagne for DeMoff.

Diane Masterson, a friend of Coffel’s, testified she was an occasional patron of the Chesterfield Lounge. On the evening in question, she was seated at the bar near Wilkens and heard him ask DeMoff to sit by him. Wilkens asked DeMoff if she wanted a drink, and DeMoff accepted. Masterson saw the bartender serve champagne to Wilkens and DeMoff. She heard half of the conversation between Wilkens and DeMoff and did not hear DeMoff offer to perform any sexual acts. Masterson had been at the lounge on previous occasions and never saw anyone engaged in sexual activity.

John Mundo testified he had worked at the lounge as manager for 10 years. During that time, no arrests had been made for prostitution. Women are hired as dancers and barmaids. They are instructed that no prostitution is permitted on the premises and that they cannot date customers. Employees could sit with customers only at the customers’ request.

In his order revoking plaintiff’s liquor license, the local liquor control commissioner of Calumet City found that “the license and/or its agent did allow soliciting for drinks and soliciting for prostitution in the licensed establishment.” Plaintiff appealed to the State of Illinois Liquor Control Commission, and the order of revocation was affirmed. Plaintiff thereafter filed an action under the Administrative Review Law (Ill. Rev. Stat. 1983, ch. 110, par. 3 — 101 et seq.). The circuit court affirmed the decision of the Illinois Liquor Control Commission.

On appeal, plaintiff first contends the finding that solicitation for prostitution occurred on the licensed premises is against the manifest weight of the evidence. Plaintiff raises four points in support of his contention: (1) there is no evidence that DeMoff offered to perform an act within the purview of the prostitution statute; (2) no evidence was presented that DeMoff offered to perform such an act for money; (3) the testimony indicated there was no place in the lounge where sexual activity could take place; and (4) the licensee neither had knowledge of nor permitted prostitution on the premises.

Initially, we note that the findings of the local commissioner are presumed to be correct and will not be disturbed unless contrary to the manifest weight of the evidence. (Roque v. Quern (1980), 90 Ill. App. 3d 1015, 414 N.E.2d 161; Show of Shows, Inc. v. Illinois Liquor Control Com. (1967), 86 Ill. App. 2d 109, 230 N.E.2d 268.) It is the function of the commissioner to determine the credibility of witnesses and the weight accorded their testimony. Starnawski v. License Appeal Com. (1981), 101 Ill. App. 3d 1050, 428 N.E.2d 1102.

Regarding his first point, plaintiff argues that the local commissioner irrationally inferred that the term “blowjob” referred to an act prohibited by the prostitution statute. During oral argument, plaintiffs attorney stated the term has various connotations. For example, counsel argued, a blowjob could be considered either a service performed in a barber shop or a whispering in one’s lover’s ear.

Despite counsel’s imaginative argument, we reject plaintiff’s contention. During the hearing before the local commissioner, plaintiffs attorney used the term when questioning witnesses and stated, “[T]his act, I think we all know what we are talking about ***.” Thus, we find plaintiff admitted that the phrase had the meaning ascribed to it by the local liquor control commissioner.

Assuming, arguendo, that the issue is properly before us, we find that the commissioner in this case did not irrationally infer that a blowjob referred to an act of prostitution. In People v. Darling (1977), 46 Ill. App. 3d 698, 361 N.E.2d 121, the evidence indicated a police officer offered $25 to defendant “for a straight blow job.” Although the court did not address the same issue presented in this case, the court nonetheless equated the term “blow job” with an act of prostitution. (46 Ill. App. 3d 698, 700, 361 N.E.2d 121, 123.) Furthermore, in People v. Brewer (1983), 118 Ill. App. 3d 189, 454 N.E.2d 1023, the court addressed the issue of whether defendant’s prior criminal offenses involving children were admissible to prove identity in an indecent liberties case. In holding the evidence admissible, the court noted, “*** [distinction] as how the request for fellatio was phrased, i.e., ‘blow job’ * * * [is] merely [a] meaningless distinction.” (118 Ill. App. 3d 189, 194, 454 N.E.2d 1023, 1028.) Considering the aforementioned cases, we find no merit in defendant’s argument.

In support of his second point, plaintiff contends that $45 is not an unreasonable amount to pay for champagne in a commercial establishment, and that in the absence of any evidence of the quality or brand purchased by Wilkens, there is no proof that DeMoff agreed to perform a sexual act for money. In our opinion, however, Officer Wilkens’ testimony is sufficient to establish that the consideration to be paid for DeMoff’s acts was included in the price of the champagne. The committee comments on section 11 — 14 of the Criminal Code of 1961, cited with approval in S&F Corp. v. Bilandic (1978), 62 Ill. App. 3d 193, 378 N.E.2d 1137, state that “criminal liability cannot be escaped by schemes which would avoid the direct payment of cash to the prostitute.” (Ill. Ann. Stat., ch. 38, par. 11 — 14, Committee Comments, at 334 (Smith-Hurd 1979).) Thus, we find sufficient evidence that the act was to be performed for money.

Next, plaintiff argues that the lounge was not conducive to sexual activity because there were between. 15 and 30 other patrons present and, according to Wilkens’ testimony, the act was to take place at the bar after DeMoff had finished dancing. We find that this factor was one for consideration by the commission in determining credibility. The evidence does not negate the possibility of sexual activity and, in our opinion, is sufficient to support a finding that the commission’s decision is not against the manifest weight of the evidence.

Plaintiff’s final argument on this issue is that he neither knew of nor permitted prostitution on the premises and that his license therefore cannot be revoked on this basis. However, as noted in Maldonado v. License Appeal Com. (1981), 100 Ill. App. 3d 639, 640-41, 427 N.E.2d 225, 227:

“A liquor license may be revoked for cause based on the conduct or actions of the licensee or the conduct or actions of others for whom he is deemed responsible or chargeable. (See Childers, 67 Ill. App. 2d 107, 113, 213 N.E.2d 595, 598.) Pursuant to section 3 of article X of the Liquor Control Act (Ill. Rev. Stat. 1975, ch. 43, par. 185), a licensee is accountable for the actions of his employees. The performance of work for another is prima facie evidence of employment and supports a presumption that the party is an employee, in the absence of evidence to the contrary.”

The record in this case contains ample evidence that DeMoff was plaintiffs employee. Plaintiff never offered any contrary evidence. The Liquor Control Act does not condition the licensee’s accountability on knowledge of his employee’s actions, and, thus, revocation based on an employee’s misconduct is not improper.

Plaintiff’s second issue is based on that part of the finding regarding solicitation of drinks. The ordinance in effect at the time the acts took place prohibited solicitation of drinks by females only and was declared unconstitutional by the State of Illinois Liquor Control Commission. The amended ordinance under which plaintiff was charged was enacted by Calumet City on September 23, 1982, after the alleged act of solicitation took place. Plaintiff contends the amended ordinance cannot be applied to the acts in question without violating the prohibition of ex post facto legislation.

The ex post facto prohibition applies only to criminal legislation. (Harris v. Irving (1980), 90 Ill. App. 3d 56, 412 N.E.2d 976.) Hearings on liquor license violations are civil proceedings and therefore not subject to the constitutional provision.

Assuming, arguendo, that criminal legislation is involved, we find no merit to plaintiff’s argument. In Dobbert v. Florida (1977), 432 U.S. 282, 292, 53 L. Ed. 2d 344, 356, 97 S. Ct. 2290, 2298, the court, quoting Beazell v. Ohio (1925), 269 U.S. 167, 169-70, 70 L. Ed. 216, 217, 46 S. Ct. 68, 68, defined as ex post facto law:

“It is settled, by decisions of this Court so well known that their citation may be dispensed with, that any statute which punishes as a crime an act previously committed, which was innocent when done; which makes more burdensome the punishment for a crime, after its commission, or which deprives one charged with crime of any defense available according to law at the time when the act was committed, is prohibited as ex post facto.”

However, where the crime, the punishment and the degree of proof necessary to establish guilt remain unaffected by an amended law, there is no violation of the ex post facto clause. Dobert v. Florida (1977), 432 U.S. 282, 53 L. Ed. 2d 344, 97 S. Ct. 2290.

In this case, the act of solicitation for drinks was not an innocent act at the time it was done. Furthermore, counsel has not argued that the amended ordinance changed the punishment imposed or deprived plaintiff of any defense which was available at the time the act was committed. The crime, punishment and proof remained unchanged, and we therefore find no violation of the ex post facto clause.

Although we hold that the findings of the commission were not against the manifest weight of the evidence, we agree with plaintiffs argument that the penalty of revocation of his license was too severe. The record establishes that plaintiff had operated his business for 40 years and previously had never been charged with license violations. Calumet City presented no evidence to refute these facts. In Byrne v. Stern (1981), 103 Ill. App. 3d 601, 431 N.E.2d 1073, the court, when faced with similar facts, found that revocation was an abuse of discretion. We therefore remand this case for reconsideration of the penalty imposed and the imposition of a less severe sanction.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed in part and reversed in part, and the cause is remanded for further proceedings consistent with this opinion.

Judgment affirmed in part, reversed in part; cause remanded.

CAMPBELL and BUCKLEY, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE GREEN

license: Public Domain

text:
    MILDRED CLARKSON MESTJIAN, Plaintiff-Appellee, v. THE TOWN OF CERRO GORDO, Defendant-Appellee (Lynn H. Clarkson, Intervening Appellant).
    Fourth District
    No. 4—84—0551
    Opinion filed February 27,1985.

      Hugh Finson, of Monticello, for appellant.
    Rosenberg, Rosenberg, Bickes, Johnson & Richardson, Chartered, of Decatur (Wayne L. Bickes, of counsel), for appellee Mildred Clarkson Mestjian.
    Glasgow Law Office, P.C., of Monticello (John W. Foltz, of counsel), for appellee Town of Cerro Gordo.
   PRESIDING JUSTICE GREEN

delivered the opinion of the court:

On April 13, 1983, plaintiff, Mildred Clarkson Mestjian, filed suit in the circuit court of Piatt County against defendant, the town of Cerro Gordo, seeking a declaratory judgment authorizing “the disinterment of the remains of her father [Gus Clarkson from defendant’s township cemetery] and for the reburial of [the remains] beside his widow in the State of Florida.” The complaint sought, as an alternative remedy, injunctive relief to prevent defendant from interfering with or refusing to permit the disinterment. Lynn Clarkson, a brother of the deceased, was permitted to intervene. Upon issues being joined, a bench trial was held. On July 23, 1984, a judgment was entered declaring that plaintiff was authorized to disinter the remains for removal to and burial in Florida. The order was stayed pending appeal. The intervenor, Lynn Clarkson, has appealed. We affirm.

The unusual events giving rise to this dispute began with the sudden death from influenza of Gus Clarkson on February 20, 1920, at the age of 32. Plaintiff was then approximately 11 years old. Her father was a tenant farmer on land owned by his father. No evidence of burial instruction by the deceased was introduced. Apparently, the deceased’s mother arranged for burial in a family plot in defendant’s cemetery.' The widow apparently made no objection but would have had no money with which to bury the deceased elsewhere. The evidence indicated that plaintiff and the widow became somewhat estranged from the Clarkson family and moved from Piatt County within a few years. The evidence also indicated that the deceased and his widow had an agreement that if either died, the other would not remarry, and the widow did not do so.

The parties recognize the sanctity of a grave and that permission to remove buried remains will not be lightly granted. The intervenor, Lynn Clarkson, emphasizes that his brother was buried in a family plot, the place where he would likely have chosen to be buried, and that the body has remained there for nearly 65 years. He testified that it was the strong desire of the Clarkson family for the body to remain with those of the other members of the family at Cerro Gordo.

Plaintiff testified that she purchased a four-person plot in a cemetery in Sarasota, Florida, in 1973, and that she had her mother buried there. Plaintiff also testified that it was her desire and that of her mother that the remains of the deceased be brought there and that those of plaintiff and her husband be buried there as well. The thrust of plaintiff’s contentions is that the deceased should be buried with his widow and only child. The defendant township takes the proper position that the unfortunate dispute is between the plaintiff and the intervenor and that it will abide the court’s decision.

The opinions in only four Illinois cases have concerned the question of the propriety of disinterment. None are directly on point.

In Mannheimer v. Wolff (1962), 38 Ill. App. 2d 216, 187 N.E.2d 1, the plaintiff’s father was buried in a cemetery along with several other family members. According to the will of another family member buried in the plot, her grave was to be decorated in a manner different from that of other graves in the plot. The plaintiff sought to enjoin the nonuniform decorations, or, in the alternative, sought removal of that person’s body from the plot. In affirming the denial of the relief requested, the court stated that the sanctity of the grave should not be disturbed, and that a court will not ordinarily order or permit disinterment unless there is a strong showing that necessity and the interests of justice require disinterment.

The case of In re Estate of Fischer (1954), 1 Ill. App. 2d 528, 117 N.E.2d 855, turned on the question of whether a probate court had jurisdiction to order disinterment. The appellate court held that it did not, but it nevertheless spoke to the propriety of the requested disinterment. The wife of a decedent ordered his burial in a certain cemetery. Four years later, the decedent’s sister, who was named in his will as executor of his estate, requested permission to disinter the decedent’s body and rebury it in the cemetery which the decedent specified in his will. The sister apparently knew of this provision at the time of the decedent’s death, but the decedent’s wife did not. The court discussed how the right to determine place of burial is usually vested in the widow and next of kin but that a request in the will of the deceased might control over the right of the widow or next of kin. The court noted that once a body is properly buried, a very strong showing is necessary to permit disinterment. The court then concluded that although the sister might have been able to enforce a burial in the cemetery designated in the will had she acted promptly, she had lost that right by her delay.

In Friedman v. Agudath Achim North Shore Congregation (1953), 351 Ill. App. 413, 115 N.E.2d 553, the relatives of the decedent, who was buried in an orthodox Jewish cemetery, sought to remove the remains to what, in their view, was a better developed and improved cemetery. The organization which ran the cemetery opposed the disinterment on the ground that disinterment was contrary to the tenets of Judaism, and the plaintiff sought an injunction prohibiting the organization from interfering with the disinterment. The appellate court held that the circuit court properly dismissed the plaintiff’s complaint for want of equity. The basis for its decision was that the tenets of orthodox Judaism were incorporated into the contract for the purchase of the lot where the decedent was buried, and that the contract therefore prevented disinterment.

Finally, we consider Goodman v. Independent Order Bickur Cholem Ukadishu (1945), 326 Ill. App. 25, 60 N.E.2d 892. There, the widow of a decedent desired to remove the body from the cemetery of burial to a cemetery which provided for perpetual care of grave sites and to sell the lot in the former cemetery to another. Upon the refusal of the cemetery to consent to these things, she filed suit requesting that the cemetery be enjoined from interfering with the sale of the lot and with the removal of the decedent’s body. The appellate court held that the trial court erred in ordering the cemetery to consent to the sale of the lots, but properly enjoined it from interfering with the disinterment of the plaintiff’s husband’s body. The bases for the latter decision were that there was no evidence that disinterment was contrary to the decedent’s religion; the plaintiff, rather than her husband, selected the initial burial site; and the plaintiff and her son who, so far as the record showed, were the only parties interested in the matter, both assented to the disinterment.

The opinion of Justice Cardozo in Yome v. Gorman (1926), 242 N.Y. 395, 152 N.E. 126, is worthy of consideration. There, the New York Court of Appeals reversed a grant of a preliminary injunction restraining a cemetery association from interfering with a disinterment. The opinion spoke to the matters which the trial court should consider in passing upon the request for a permanent injunction. The opinion stressed the need for a substantial showing in order to support a disinterment but stated:

“Removal at the instance of a wife or of kinsmen near in blood to satisfy a longing that those united during life shall not be divided after death, may seem praiseworthy and decorous when removal at the instance of distant relatives or strangers would be arbitrary or cruel.” 242 N.Y. 395, 403, 152 N.E. 126, 129.

The following is also of significance:

“A change of sepulture is frequently permitted to enable those who were together in life to be together in death. The courts usually will authorize disinterment so the body may be reinterred in an after-acquired family plot, particularly where the request is made by the surviving members of decedent’s family, and is opposed only by the owner of the plot or the cemetery from which the body will be taken; the courts take a liberal view in permitting disinterment for such purpose.” (25A C.J.S. Dead Bodies sec. 4(1), at 498 (1966).)

Moreover, in one of the New York cases on which the above statement is based, it is said:

“The bonds of marriage are strong and to be upheld; separation after death of those who have been joined in matrimony cannot be lightly permitted.
In the case at bar, to prevent the removal of the husband’s body from one hallowed place to another hallowed place would cause, in the light of this application, a separation after death of husband and father from the rest of his family. I cannot conceive this to be right.” Application of Sherman (1951), 107 N.Y.S.2d 905, 906, aff’d (1952), 110 N.Y.S.2d 224, 279 App. Div. 872, aff’d (1952), 304 N.Y. 745, 108 N.E.2d 613.

The case here differs from Mannheimer, where the requested removal was by collateral relatives and made for the sole purpose of releasing the grave space from a requirement concerning decoration. The case also differs from In re Estate of Fischer, where the widow’s objection to disinterment was upheld. Granting disinterment there would not have brought the bodies of family members together. No contract or religious tenet is involved as in Friedman. As in Goodman, disinterment here would enable immediate family members to be buried together. The case differs from Goodman in that there, no family members objected while here, a brother has objected. However, we do not deem the objection of the intervenor, Lynn Clarkson, to be determinative.

The trial court made a finding that both plaintiff and her mother, the deceased widow, desired that they be buried in the same plot and side-by-side with their husbands. The finding was fully supported by the evidence. Taken together with the unusual circumstances whereby the decedent died suddenly while young, and the families became estranged, we deem the desires of plaintiff and her mother to fully justify the trial court’s order. We find this situation to be just that which Justice Cardozo referred to as deserving special consideration.

We recognize the concern of the intervening brother with disturbing the repose of the remains after so many years but find it justified under the circumstances. The evidence indicated that as early as 1928, the widow expressed a desire to have the family buried in a common plot. She moved from place to place to some extent, as did her daughter. The trial court could have concluded that for many years their financial resources were very limited. Only in fairly recent years were they in a position to know where an appropriate final resting place would be. Delay on the part of plaintiff should not be held to estop her.

The decision of the trial court was fully supported by the evidence and well within any discretion it had. We affirm its judgment.

Affirmed.

McCULLOUGH and TRAPP, JJ., concur.


author: JUSTICE ROMITI

text:
    TIMOTHY WOODS et al., Plaintiffs-Appellants, v. NORTH PIER TERMINAL COMPANY, Defendants (North Pier Terminal Company, Appellee).
    First District (4th Division)
    No. 84—56
    Opinion filed February 7, 1985.
    Ernest T. Rossiello, of Chicago, for appellants.
    Schaffenegger, Watson & Peterson, Ltd., of Chicago (Jay S. Nelson, of counsel), for appellee.
   JUSTICE ROMITI

delivered the opinion of the court:

Timothy Woods (Woods) appeals from the order of the Cook County circuit court which entered summary judgment in favor of North Pier Terminal Company, Inc. (North Pier). Woods had filed suit against North Pier to recover damages for personal injuries he allegedly sustained while employed at Navy Pier, which Woods claimed North Pier leased, maintained, or otherwise controlled pursuant to a lease agreement with the city of Chicago. The sole issue presented for our review is whether North Pier’s agreement with Woods’ employer, Ceres, Inc. (Ceres), to assign North Pier’s lease of Navy Pier to Ceres was valid where the city of Chicago never formally consented to the assignment although consent was required under the terms of the lease.

We affirm.

Woods’ complaint alleged that he was injured on June 13, 1977, while employed by Ceres as a longshoreman at Navy Pier, when he slipped and fell on an oil slick in a warehouse at the pier. He alleged that the premises were leased, operated, supervised, managed, maintained or otherwise controlled by North Pier at the time of his injury because of North Pier's agreement with the city of Chicago to lease the property. This agreement was dated May 5, 1976. By its terms, the period of the leasehold commenced January 1, 1976, and terminated December 31, 1978. The lease provided in pertinent part that North Pier could assign its interest only upon approval from the city of Chicago. Article II of the agreement specifically stated in relevant part:

“The tenant shall not, without prior approval of Landlord, assign or transfer this agreement nor any share, part or interest therein, or any of the rights or privileges granted hereby, nor enter into any contract requiring or permitting the doing of anything hereunder by an independent contractor unless otherwise expressly provided herein. Tenant further agrees that it shall not enter into agreements of any nature, formal or informal, concerning other business or corporation without prior approval of Landlord ***.”

The lease further obligated North Pier to maintain the premises in safe condition and reasonable repair and required it to obtain specified types of insurance coverage in case of property damage or personal injury.

North Pier’s motion for summary judgment contended that an effective assignment of this lease to Ceres had occurred prior to Woods’ injuries. In support, North Pier presented an assignment agreement between it and Ceres dated February 1, 1977; correspondence from the commissioner of public works of the city of Chicago to North Pier dated April 4, 1977, which expressed its intent to consent to the assignment to Ceres; and a resolution of the Chicago city council dated August 1, 1977, which authorized the commissioner of public works to execute on behalf of the city of Chicago a consent to the assignment agreement between North Pier and Ceres.

Although consent was thereby authorized, no formal instrument was ever executed by the commissioner of public works or any other authorized governmental official.

Based upon the parties’ pleadings, documents, and written and oral argument, the trial court found that North Pier had assigned its leasehold interest to Ceres and was therefore not liable for Woods’ alleged injuries. It entered summary judgment in favor of North Pier accordingly. Woods’ timely appeal followed.

Woods argues on appeal that summary judgment was improperly granted here because the facts do not establish North Pier’s valid and effective assignment of its lease to Ceres. He initially claims that the purported assignment was a nullity because it did not comply with the provisions of the Illinois Municipal Code (Ill. Rev. Stat. 1979, ch. 24, par. 1 — 1—1 et seq.), which set forth the manner in which a municipality may lease its real property (Ill. Rev. Stat. 1979, ch. 24, par. 11— 76 — 1 et seq.). Woods does not specify which provision of the Act was violated, however, and our research has discovered no deviation from its requirements here. We find no merit to Woods’ contention.

Woods further suggests that the assignment was invalid because it failed to comply with the terms of the lease agreement. In this regard, he correctly observes that common law rules of landlord-tenant govern the validity of the assignment, as a municipality leases its property in its proprietary capacity and is therefore held to the same legal standards applicable to any landlord. (Chemical Petroleum Exchange, Inc. v. Metropolitan Sanitary District (1980), 81 Ill. App. 3d 1005, 1011, 401 N.E.2d 1203; Chanslor-Western Oil & Development Co. v. Metropolitan Sanitary District (1970), 131 Ill. App. 2d 527, 529, 266 N.E.2d 405.) Applying these criteria, however, the assignment was not invalid.

It is well established that restrictions against assignment are intended solely for the benefit of the lessor. (Kaybill Corp. v. Cherne (1974), 24 Ill. App. 3d 309, 319, 320 N.E.2d 598; Wohl v. Yelen (1959), 22 Ill. App. 2d 455, 461, 161 N.E.2d 339.) Where a tenant has attempted assignment of a lease in contravention to its terms, the assignment is not void but merely voidable by the landlord. (Waukegan Times Theatre Corp. v. Conrad (1945), 324 Ill. App. 622, 632, 59 N.E.2d 308.) If the landlord does not elect to treat the leasehold as void, the requirements of the lease regarding assignment are deemed waived. Kay-bill Corp. v. Cherne (1974), 24 Ill. App. 3d 309, 320 N.E.2d 598; Wohl v. Yelen (1959), 22 Ill. App. 2d 455, 161 N.E.2d 339.

Even assuming that the lessor here, the city of Chicago, never formally consented to the assignment of North Pier’s lease to Ceres, nevertheless the assignment was valid because of the city’s waiver of the requirement of consent to the assignment. The record is devoid of any evidence indicating that the city ever elected to treat North Pier’s lease as void on the ground that the attempted assignment was a breach of the lease agreement. Further, Woods has made no argument at any point in the proceedings before the trial court or in this appeal to establish that the city objected to the assignment. Indeed, we question whether Woods is the proper party to raise any question of the validity of the assignment, as this issue is properly presented by the landlord himself and if he “does not object to a breach of the restriction [against assignment] no one else can do so.” (24 Ill. L. & Prac. Landlord & Tenant sec. 83, at 204 (1980).) Consequently, we conclude that the assignment was valid and effective.

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

Affirmed.

JIGANTI, P.J., and LINN, J., concur.


author: JUSTICE MILLS

text:
    SHARON D. CHESTNUT, Plaintiff-Appellant, v. M. ADELI, M.D., et al., Defendants-Appellees.
    Fourth District
    No. 4—84—0364
    Opinion filed February 26, 1985.

      Claudia Smith Anderson and Thomas B. Meyer, both of Acton, Meyer, Smith, Miller & Anderson, of Danville, for appellant.
    Sebat, Swanson, Banks, Lessen & Garman, of Danville (Ralph J. Swanson, of counsel), for appellee Lakeview Medical Center.
    Richard F. Record, Jr., Richard C. Hayden and Paul R. Lynch, all of Craig & Craig, of Mattoon, for appellee M. Adeli.
   JUSTICE MILLS

delivered the opinion of the court:

Medical malpractice limitations question.

May a plaintiff file suit alleging medical malpractice on the basis of actions occurring toward the end of a continuous course of treatment, then subsequently file a timely amended complaint based on completely different conduct commencing early on in that course of treatment — nearly 10 years after the initial conduct occurred?

We think not.

We affirm.

Chestnut filed her initial complaint alleging medical malpractice on March 26, 1981. The gravamen of the allegations contained therein was defendants’ alleged tortious conduct in inserting a Kuntscher rod of improper length into Chestnut’s left femur on December 19, 1977. (This operation was part of a course of treatment of Chestnut by defendants which commenced in June 1974, following Chestnut’s involvement in an automobile accident.)

The next event of significance to the issues involved in this appeal occurred on November 5, 1982, when Chestnut filed a motion to amend her complaint. Chestnut alleged that as a result of a deposition which took place on November 3, 1982, she determined that the negligent care and treatment alleged in her initial complaint arose from facts other than those stated therein and that the “claim or demand sought to be amended” arose out of the same transaction or occurrence as that alleged in the initial complaint, “even though the original pleading was defective in that it failed to allege the performance of the act which is a necessary prerequisite to the plaintiff’s right to recover.”

On November 17, 1982 (prior to the time that the above motion was ruled upon), Chestnut filed, without leave of court, a “First Amended Complaint.” At a hearing held on Chestnut’s motion to amend and the objections of defendants thereto on December 13, 1983, Chestnut admitted that she inadvertently and erroneously filed her “First Amended Complaint” without leave of court, and that the only complaint properly on file at that time was the initial 1981 complaint. At the conclusion of the hearing, the court granted Chestnut leave to withdraw the document entitled “First Amended Complaint” and to file an amended pleading. Chestnut did so on February 1, 1984, and on the same date the court struck the amended complaint with leave to further amend.

Chestnut filed her second amended complaint on February 15, 1984. The allegations of this complaint are similar to those of the first amended complaint filed February 1, 1984. The gist of both amended complaints is that on June 4, 1974, defendant Adeli performed a left femoral plating and open reduction with screw fixation of Chestnut’s severely fractured left femur; that this was the improper procedure to remedy Chestnut’s condition; and that during the remainder of Adeli’s and Lakeview Hospital’s (Lakeview) treatment (which ended on August 15, 1978), Adeli and Lakeview failed to take other proper steps to cause Chestnut’s fractured left femur to heal, and did not advise Chestnut of the true cause of her continuing affliction. Chestnut’s second amended complaint was likewise dismissed on defendants’ motion following a hearing held April 24, 1984.

Opinion

The first question which we must determine is whether Chestnut’s amended complaints alleging a cause of action based on the entire course of treatment beginning in 1974 (as distinguished from the act of inserting a Kuntscher rod of improper length in 1977) may for limitations purposes be deemed to have been first filed in 1981 (when Chestnut filed her initial complaint) or in 1984. Section 2 — 616(ti) of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2— 616(b)) provides that an amended complaint relates back to the time of the filing of the initial complaint if the initial complaint was timely filed and “if it shall appear from the original and amended pleadings that the cause of action asserted *** in the amended pleading grew out of the same transaction or occurrence set up in the original pleading.” The circumstances under which an amended complaint may be deemed to relate back to the date of filing of the initial complaint were ably stated by the court in Krieger v. Village of Carpentersville (1972), 8 Ill. App. 3d 243, 246-47, 289 N.E.2d 481, 483:

“The right to amend and the relation back of an amendment *** depend on whether the original complaint furnishes to the defendant all of the information necessary to prepare its defense to the claim subsequently asserted in the amended complaint. [Citation.] The requirement that a cause of action be stated at the outset with precise accuracy has been shifted to a test of the identity of the transaction or occurrence, on the rationale that the defendant has not been prejudiced so long as his attention has been directed to the facts which form the basis of the claim within the prescribed time. [Citation.]’ ’

The 1981 complaint, alleging as it did medical malpractice on the basis of the insertion of a Kuntscher rod of improper length, cannot reasonably be said to have furnished the defendants with all of the information necessary to defend against the amended complaint. Indeed, the only reasonable conclusion which defendants could have drawn from the 1981 complaint was that Chestnut sought to hold them liable for medical malpractice solely on the basis of the insertion of a Kuntscher rod of improper length in 1977. The mutual exclusivity of the causes of action asserted in the initial 1981 complaint and the 1984 amended complaints is demonstrated by Chestnut’s complete failure to allege the insertion of a Kuntscher rod of improper length as a cause of the damages alleged in the 1984 amended complaints. Moreover, it is not inconceivable that the defendants would be prejudiced by now having to defend against the allegations of the 1984 amended complaints, since in reliance on the 1981 complaint, defendants may well have failed to take the steps necessary to preserve evidence pertaining to their treatment of Chestnut prior to December 1977.

Chestnut seeks to demonstrate that the 1984 complaints state the same cause of action as the 1981 complaint and may thus be deemed timely filed, by pointing out that the events mentioned in both the 1984 and 1981 complaints were part of the same continuous course of treatment. The only cases which she cites in support of this argument are Connell v. Hayden (1981), 83 App. Div. 2d 30, 443 N.Y.S.2d 383, and Schmit v. Esser (1931), 183 Minn. 354, 236 N.W. 622, which hold that for statute of limitations purposes, a cause of action as to any act occurring within a continuous course of treatment should not be deemed to accrue until the end of the entire course of treatment.

An evaluation of this portion of Chestnut’s argument requires a determination of the period of limitations applicable to the causes of action which Chestnut sought to state in her 1984 amended complaints. Medical malpractice actions must be filed within two years of the date of discovery of the wrongful causation of injuries by improper medical treatment, but in no event may such actions be brought more than four years after the act or omission forming the basis for the action. (Ill. Rev. Stat. 1983, ch. 110, par. 13 — 212.) The present medical malpractice statute of limitations, which became effective September 19, 1976, is applicable to causes of action in existence as of its effective date if such causes of action were not instantaneously barred as of its effective date, and a reasonable period of time remained within which to file the action subsequent to the statute’s effective date. (Anderson v. Wagner (1979), 79 Ill. 2d 295, 402 N.E.2d 560.) It is thus seen that the latest date on which Chestnut could have filed a cause of action based on the defendants’ alleged improper course of treatment beginning in 1974 (assuming that the continuous course of treatment doctrine is applicable) was August 15, 1982, four years after the admitted termination of that course of treatment.

Connell and Schmit did not deal with the situation where, as here, the plaintiff attempts to assert an entirely new cause of action after the statute of limitations has run as to all aspects of the continuous course of treatment. Stated somewhat differently, in the two cases on which Chestnut relies the action was timely filed prior to the time that the period of limitations expired as to the last act in the course of treatment. In the instant case, by contrast, the causes of action which Chestnut attempted to state in the 1984 amended complaints were filed after the statute of limitations had run as to the last act in defendants’ treatment of Chestnut.

None of the cases cited by Chestnut in support of her assertion that her alleged actions were timely filed require a result different from that which we reach. Cutsinger v. Cullinan (1979), 72 Ill. App. 3d 527, 391 N.E.2d 177, Jones v. Brill (1981), 97 Ill. App. 3d 943, 423 N.E.2d 930, and Mega v. Holy Cross Hospital (1984), 122 Ill. App. 3d 720, 462 N.E.2d 637, all involved causes of action which were instantaneously barred by the 1976 amendment to the medical malpractice statute of limitations. In the present case, by contrast, Chestnut had a minimum of 20 months (from September 19, 1976, until June 1978) in which to file a cause of action based on any act or omission occurring during the course of Adeli’s and Lakeview’s course of treatment. Champaign County Nursing Home v. Petry Roofing, Inc. (1983), 117 Ill. App. 3d 76, 452 N.E.2d 847, dealt with the repeal of a savings clause contained in an amended statute of limitations, which repeal instantaneously barred a cause of action which the savings clause had kept alive. We there held that the plaintiff’s cause of action was barred because it had a reasonable time prior to the repeal of the savings clause in which to bring its action. Thus, none of the cases on which Chestnut relies are factually apposite to the case at bar.

Chestnut finally attempts to salvage her alleged causes of action by asserting that the defendants are equitably estopped from raising the statute of limitations as a defense. In support of this position, Chestnut relies specifically upon defendants’ failure to inform her of the “surgical and post-operative procedures available, as well as the treatments of choice for her particular physical and mental state” prior to the June 7, 1974, surgery or at least prior to August 1978. Chestnut further asserts that the defendants’ “limiting” of medical records provided to Dr. Bussey (the physician whom she consulted after terminating her treatment with defendants) inhibited her determination of the cause of her ill-being at an earlier date.

The doctrine of equitable estoppel represents merely an application of the fundamental principle that a litigant will not be permitted to take advantage of his own wrongdoing. The doctrine has been applied to prevent a litigant, whose conduct has caused a plaintiff to delay filing suit until after the period of limitations has run, from asserting the statute of limitations as a bar to the action. (Real v. Kim (1983), 112 Ill. App. 3d 427, 445 N.E.2d 783; see Withered v. Weimer (1981), 85 Ill. 2d 146, 421 N.E.2d 869.) However, where the lulling of the plaintiff into inaction ceases months before the statute of limitations bars an action, and the plaintiff thereafter has ample time and opportunity to seasonably file his or her complaint, the doctrine of equitable estoppel is inapplicable. Reat v. Illinois Central R.R. Co. (1964), 47 Ill. App. 2d 267, 197 N.E.2d 860.

With respect to the alleged failure of defendants to advise Chestnut of the available surgical and post-operative procedures and treatment of choice, these actions admittedly occurred before Chestnut’s course of treatment ended, and Chestnut does not maintain that the defendants had an obligation to inform her of these matters after that time. Thus, if the continuous course of treatment doctrine is deemed applicable, Chestnut had ample time after the conduct providing the basis for the alleged estoppel ceased in which to file her action.

Regarding the second asserted basis for the application of the doctrine of estoppel — the “limitation” of medical records provided to Dr. Bussey — the only medical records mentioned in this portion of Chestnut’s estoppel argument are the X rays of Chestnut’s injured femur. The defendants’ alleged failure to promptly supply these X rays likewise does not provide a basis for estopping defendants from asserting the statute of limitations. Chestnut very probably had a basis for believing that her ill-being was caused by the conduct of defendants when she sought treatment from Dr. Bussey in 1978, and she certainly had a basis for so believing when she filed her suit against defendants in 1981. Even if she is deemed to have first obtained knowledge that her ill-being was caused by defendants on or shortly before the date that she filed her initial complaint in 1981, she nevertheless had over one year (assuming the applicability of the continuous course of treatment doctrine) in which to utilize discovery procedures to obtain necessary X rays before the cause of action asserted in her amended complaint became barred. There is no indication that she made full use of all available discovery procedures and sanctions in order to obtain the X rays prior to that date.

In an adversary setting, it is extremely unusual, if not unheard of, for one party to voluntarily provide documentary evidence to the opposing party. In fact, to do so might well constitute a breach of ethical standards on the part of the attorney voluntarily providing such information. When the availability of discovery procedures and sanctions is considered, it would be unreasonable to hold that failure to voluntarily surrender discoverable documents provides a basis for an estoppel to assert the statute of limitations.

Moreover, Dr. Bussey asserted in an affidavit that he first saw the X rays on December 1, 1982. And, as previously stated, Chestnut cannot be deemed to have filed her suit until February 1, 1984. Also, Dr. Bussey stated in his affidavit that upon viewing the X rays, his opinion that the nonunion of Chestnut’s left femur and her ensuing problems were attributable to improper performance of the initial plating procedure in 1974 was confirmed. The above matters are, in our view, strong evidence that lack of the X rays prior to the time that the period of limitations expired was not an important factor in causing Chestnut’s asserted actions to become barred by the statute of limitations.

As a basis for her contention that this is a proper case for the application of the doctrine of equitable estoppel, Chestnut cites Magana v. Elie (1982), 108 Ill. App. 3d 1028, 439 N.E.2d 1319, and Guy v. Schuldt (1956), 236 Ind. 101, 138 N.E.2d 891. Neither of these cases, however, discusses the applicability of the principle of equitable estoppel to a specific factual situation. The present case is also distinguishable from Witherell v. Weimer (1981), 85 Ill. 2d 146, 421 N.E.2d 869, in that Chestnut, unlike Witherell, did not act with reasonable diligence in filing her suit upon ending her relationship with the defendants. Rather, she waited more than five years after she ceased her course of treatment with defendants before asserting causes of action based on defendants’ alleged acts of negligent treatment.

Finally, we note parenthetically that Chestnut seems to imply that the trial court may have abused its discretion in denying her leave to file a further amended complaint. However, we note that Chestnut did not file a formal written request for leave to further amend, and that her oral statement at the hearing on the motion to dismiss her second amended complaint did not demonstrate that an additional amended complaint would have contained allegations materially different from those of the first and second amended complaints. Under these circumstances, the circuit court did not abuse its discretion in denying Chestnut leave to further amend. Deasey v. City of Chicago (1952), 412 Ill. 151, 105 N.E.2d 727; Urfer v. Country Mutual Insurance Co. (1978), 60 Ill. App. 3d 469, 376 N.E.2d 1073.

Finding no merit in any of Chestnut’s allegations as to the impropriety of the trial court’s dismissal of her second amended complaint, we affirm that court’s judgment.

Affirmed.

GREEN, P.J., and TRAPP, J., concur.


author: PRESIDING JUSTICE NASH

text:
    HOWARD M. HUME et al., Plaintiff s-Appellants, v. THE TOWN OF BLACKBERRY et al., Defendants-Appellees.
    Second District
    No. 84—0047
    Opinion filed February 21, 1985.
    Charles H. Atwell, Jr., of Atwell & Atwell, of Aurora, for appellants.
    Charles A. Radovich, of Radovich & Radovich, of Geneva, and Robert J. Britz, of McClow & Britz, of Elburn, for appellees.
   PRESIDING JUSTICE NASH

delivered the opinion of the court:

Plaintiffs brought this action against defendants for declaratory judgment that the expense allowances paid to the township officers, without an accounting for expenses actually incurred, were contrary to law and sought reimbursement to the township of the sums so paid. The trial court granted defendants’ motion to dismiss plaintiffs’ amended complaint and they appeal, contending the court erred in dismissing Howard Hume as a party plaintiff for lack of standing, and in determining, as a matter of law, that the expense allowances were additional compensation to the officials which was not subject to an accounting.

Plaintiffs’ complaint alleged, inter alia, that certain officers of Blackberry Township have received from the township a fixed sum of money for expenses each month which were unsupported by voucher or itemization and constitute a flat rate expense account: that the monthly flat rate expense allowances have been paid to these officers by resolution of the township board without reference to expenses actually incurred and without requiring the expenses be supported by documentation. The complaint further alleged that the approval and payment of the flat rate expense accounts without an accounting requirement as to expenses actually incurred was contrary to the provisions of sections 4 and 5 of article XIII of “An Act to revise the law in relation to township organization” (hereinafter Township Act) (Ill. Rev. Stat. 1981, ch. 139, pars. 120, 121). And, further, that the payment of such flat rate expense accounts without accounting for expenses incurred was, in effect, an increase in salary of these elected officials during their terms of office, contrary to section 17 of article XIII of the Township Act (HI. Rev. Stat. 1981, ch. 139, par. 126.7) and to article VII, section 9(b) of the Illinois Constitution.

The complaint also alleged that at a meeting of defendant Blackberry Township Board held November 13, 1981, plaintiff, Howard Hume, who was a township trustee, advised the board it was improper for it to permit lump sum payment for expenses without an accounting by the recipient. Thereafter, at a meeting of the board held December 15, 1981, it adopted a resolution purporting to clarify the action taken at the annual town meeting of March 31, 1981, in which salaries of the incoming town officers and their expense allowances had been fixed in separate categories of salary and expenses. The resolution, which is made a part of plaintiffs’ complaint, provided that the separate sums originally listed for salary and for expenses will be “clarified and corrected to provide for total compensation under the single caption and name of Salary rather than being divided into two separate categories of Salary and Expenses.” The resolution further provided that in addition to the “total compensation” now designated as salary, all township officials may be reimbursed for the actual expenses incurred in their positions.

The plaintiffs’ complaint also alleged that the conduct complained of was a violation of the public trust without authority of law, for breach of which fiduciary duty to plaintiffs, defendants are required to account for any diversion of public funds.

Defendants’ motion to dismiss the complaint alleged, inter alia, that plaintiff, Howard Hume, should be dismissed as a party plaintiff, as he was a trustee of Blackberry Township, and also that the complaint failed to state a cause of action. The motion was granted and plaintiffs appeal.

I

We consider first whether Howard Hume was correctly dismissed as a party plaintiff on the grounds he was a member of the defendant township’s board of trustees.

Both parties rely on this court’s decision in Tanner v. Solomon (1965), 58 Ill. App. 2d 134, 206 N.E.2d 528, in which plaintiff Tanner, in his capacity as a member of a village board of fire and police commissioners, sought declaratory judgment against the other two members of the board after a disagreement over appointments to the police department. Because Tanner’s interest was solely as a dissident board member complaining of the other members’ conduct, this court considered that public policy weighed against judicial interference in an essentially intra-agency dispute and affirmed his dismissal as plaintiff. In doing so, however, this court noted that an interested citizen or property owner would have standing in the action, but that Tanner did not seek to sue in those capacities. In the present case, however, plaintiff Hume did not bring the action as a member of the township board; rather, he was identified in the complaint as an individual citizen who was a taxpayer and resident of Blackberry Township.

In our view, the fact Hume was also a member of the defendant township board would be violative of the rule that a party may not be both plaintiff and defendant in an action. Our early supreme court held that this rule operates although a party appears on one side in his personal capacity and on the other in his official character. McElhanon v. McElhanon (1872), 63 Ill. 457; Oliver v. Oliver (1899), 178 Ill. 527, 529, 53 N.E. 303; compare 59 Am. Jur. 2d Parties sec. 6 (1971).

We conclude plaintiff Hume was properly dismissed as a party and note defendants do not challenge the right of the other individual plaintiffs to bring this action.

II

The primary issue of this case is whether the trial court correctly dismissed the complaint on its finding that the expense allowanees in question were additional salary or compensation of the officials for which they need not account.

In making its ruling, the trial court relied upon DeSutter v. South Moline Township Board (1983), 96 Ill. 2d 372, 449 N.E.2d 1355, which it found to be controlling. While DeSutter is helpful to the resolution of the issues presented by plaintiffs’ complaint, it is not dispositive, as the facts differ. The court in that case held that a lump-sum expense account, if established prior to commencement of an official’s term of office and intended as additional compensation, would not conflict with article VII, section 9(b) of the Illinois Constitution, which provides:

“An increase or decrease in the salary of an elected officer of any unit of local government shall not take effect during the term for which that officer is elected.” (Ill. Const. 1970, art. VII, sec. 9(b).)

Unlike the present case, it was necessarily determined from the pleadings, stipulations and admissions of record in DeSutter that in fixing the salaries and expense allowances of the officers, to become effective upon their election, the township board intended to thus increase the compensation of the officers which was to be paid regardless of whether any expenses were incurred. (DeSutter v. South Moline Township Board (1983), 96 Ill. 2d 372, 375, 449 N.E.2d 1355.) As the officers’ compensation was clearly not increased during their terms of office, the court concluded the constitutional proscription was not violated.

In this case, however, plaintiffs have not admitted or stipulated that the township board, when fixing salaries and the separate expense allowances for town officers at the meeting held March 31, 1981, intended both funds to constitute compensation to the officers. And, plaintiffs’ complaint alleges that the expense allowances fixed by the township board at that meeting were for expenses which were subject to the auditing requirements of the Township Act.

The resolutions or ordinances adopted by the township board on March 31, 1981, in establishing the salaries and expense allowances are not found in the record; they may well constitute the best evidence of the intentions of the township board. We do not consider the subsequent resolution adopted by the township board, during the terms of the officers in question, to be dispositive of the intent of the previous township board. To the extent that it may be considered as self-serving, the clarifying resolution would be entitled to little weight. That resolution also appears to provide for payment for the same expenses of.the township officers to which the allowances made in the earlier documents were apparently directed.

A motion to dismiss a complaint under section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 615) admits as true all well pleaded facts of the complaint, together with all reasonable inferences which may be drawn from them. (O’Fallon Development Co. v. City of O’Fallon (1976), 43 HI. App. 3d 348, 351, 356 N.E.2d 1293.) We consider the trial court misplaced reliance upon the limited scope of the ruling in DeSutter v. South, Moline Totunship Board (1983), 96 Ill. 2d 372, 449 N.E.2d 1355. It may.not be determined from the record before us that the disputed expense allowances were, in fact, additional compensation awarded to the township officers prior to commencement of their terms of office. If in the further proceedings which are required it is determined that the allowances were, indeed, intended as compensation, then DeSutter will apply, and the auditing requirements of the Township Act would not be applicable. Necessarily, the converse will be true should the status of the expense allowances be found not to have been intended as compensation when established by the township board in the March 31,1981, meeting.

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

Reversed and remanded.

LINDBERG and REINHARD, JJ., concur.


author: JUSTICE LINN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. REGINALD COLE, Defendant-Appellant. THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES SCOTT, Defendant-Appellant.
    First District (4th Division)
    Nos. 82—2506, 82—2650 cons.
    Opinion filed February 21,1985.

      Steven Clark and Kenneth L. Jones, both of State Appellate Defender’s Office, of Chicago, for appellant Reginald Cole.
    James J. Doherty, Public Defender, of Chicago (Donna Hickstein-Foley, Assistant Public Defender, of counsel), for appellant James Scott.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat and Thomas Gearen, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LINN

delivered the opinion of the court:

Defendants, James Scott and Reginald Cole, were jointly indicted for the murder of Jerome Powell. Following a joint trial in the circuit court of Cook County, a jury found them guilty of murder and the court sentenced them to the Illinois Department of Corrections, Scott to a term of 35 years and Cole to a term of 27 years.

A review of the issues each defendant raises in his separately prosecuted appeal indicates that certain issues have been argued by both defendants. Accordingly, while we elect to address the two appeals in one opinion, we shall deal with the issues each has raised separately in addition to those both have argued.

On appeal, both defendants argue that the trial court’s refusal to sever their joint trial resulted in extreme prejudice and prevented each of them from receiving a fair trial. In addition, Cole maintains that he was not proved guilty beyond a reasonable doubt, while Scott argues that (1) his custodial admission should have been suppressed as being obtained in violation of (a) his sixth amendment right to counsel and (b) the material witness rule (Ill. Rev. Stat. 1983, ch. 38, par. 114 — 11(d)); (2) the jury should not have found him guilty of murder because he presented evidence of self-defense; and (3) :he was denied a fair trial because prosecutorial misconduct, including impeachment questioning and comments during closing argument, prejudiced his theory of self-defense.

We affirm the defendants’ convictions of murder.

Facts

Testimony by several eyewitnesses presented at trial established that at approximately 11 p.m. on the evening of August 22, 1981, two men were seen walking down 29th Street toward State Street. One, identified as James Scott, was tall, thin, and wearing a green surgical suit; the other, identified as Reginald Cole, was short and stout. One witness watched as Scott approached a group of men standing in the center of the crosswalk at the corner, while Cole stood in the walkway of a building across the street and looked up and down several times. Scott walked up to one of the men, later identified as Jerome Powell, and fired a gun, whereupon Powell began to run. According to the witness, Scott fired at least three more shots, finally hitting Powell in the head. Both Scott and Cole then ran toward 2840 State Street.

The Chicago police arrived to find Powell lying at the side of the street, a bullet wound in his head. As an officer knelt to examine the injured man, an unidentified child handed him an eight-inch table knife, which he placed on the ground near the victim. In the police photographs, the knife could be seen approximately two feet from a pool of Powell’s blood. A post mortem examination of the body revealed that death had resulted from a single wound to the head and that marks on the victim’s arm were consistent with narcotics addiction.

Nearly two months later, on October 20, 1981, Scott was arrested pursuant to warrant, his photograph having been identified by the eyewitnesses. After police detective Roberts informed him of his Miranda rights and questioned him on three occasions, Scott made a written statement in which he admitted that he had acted as the lookout while Cole shot Powell in retaliation for Powell’s earlier shooting of Cole’s cousin.

On November 29, 1981, Roberts learned that Cole had been arrested under another name. When Roberts interviewed Cole and showed him Scott’s statement, however, Cole told Roberts that he had been the lookout for Scott, who had shot Powell on orders from a gang leader. Cole stated to Roberts that he had watched as Scott first shot one of the men at the bus stop and then continued to fire as the man ran and finally fell. Both defendants then filed their first motions for severance of their joint trial, and both motions were denied.

At trial, both defendants testified. Cole stated that on the evening of Powell’s shooting, he accompanied Scott to 29th and State at the direction of some members of the Black Disciple Nation, the gang to which both belonged, ostensibly to pick up some drugs. When they arrived at the designated location, however, the leader of a local Disciple faction directed Scott toward two men at a bus stop; Scott in turn told Cole to act as his lookout while Scott took care of “some Nation business.” Cole argued that he did not want to get involved, but he was ordered by Scott’s superior to follow orders. Cole testified that although he crossed the street and walked toward his lookout location, he had determined to catch a bus and leave the area. Cole stated that as he stood watching for the bus, he saw Scott arguing with two men on the other side of the street. Cole began walking away, but when he heard the gunshots, he started to run and, without looking back, caught a bus a block away.

In contrast, Scott testified at trial that he and Cole had traveled to 29th and State to visit Cole’s cousin, who had been shot. Upon learning that the cousin was still hospitalized, the two men went to the apartment of one T.Y., a friend of Cole’s, to smoke marijuana. As they were leaving T.Y.’s, they began to argue over whether to take a bus or a cab back to Cole’s apartment. They separated, and Scott testified that he did not see Cole again until later that evening.

Meanwhile, as Scott walked past the bus stop on his way to visit his girlfriend, two men approached him asking for drugs. Scott, an admitted drug dealer for the gang, said he had none, whereupon one of the men, whom Scott identified as Powell, began to demand money. When Scott told him he “didn’t have any,” Powell pulled out a “shining object” and started swinging at Scott, hitting his clothing but not cutting his body. Scott, seeing a blade on the object, pulled out his gun and fired “about three” times. He then returned to T.Y.’s and found Cole, and the two went on to Scott’s girlfriend’s house.

After deliberation, the jury found both defendants guilty of murder, and this appeal followed.

Opinion

I

On appeal, both defendants claim that the trial court erred in denying their repeated motions for severance on the ground that their defenses were antagonistic. Our examination of their various motions for severance, the arguments of counsel that accompanied each motion, and the trial court’s fully stated reasons for denying each motion has led us to conclude that the trial court did not err in its rulings.

“The general rule is that defendants jointly indicted are to be jointly tried unless fairness to one of the defendants requires a separate trial to avoid prejudice.” (People v. Lee (1981), 87 Ill. 2d 182, 187, 429 N.E.2d 461, 463.) A defendant who believes that a joint trial will prejudice his chances of receiving a fair trial may request severance by a pretrial motion. (Ill. Rev. Stat. 1983, ch. 38, par. 114 — 8.) The burden is on the defendant requesting severance to prove, prior to trial, that a joint trial would be prejudicial; the mere apprehension that defenses may prove antagonistic is an insufficient ground for severance. (People v. Lee (1981), 87 Ill. 2d 182, 429 N.E.2d 461.) The defendant’s motion must specifically detail his and his codefendant’s defenses, the substance of the testimony to be heard in the trial, and the manner in which the defenses conflict. (People v. Sanford (1983), 116 Ill. App. 3d 834, 452 N.E.2d 710.) To be awarded a separate trial is not a matter of right; the decision falls within the sound discretion of the trial court and will not be reversed absent an abuse of that discretion. People v. Lee (1981), 87 Ill. 2d 182, 429 N.E.2d 461.

Trial courts generally grant motions for severance in one of two situations. The first occurs when a codefendant has made hearsay admissions implicating the defendant. In such cases, the “defendant may be denied his constitutional right of confrontation if the codefendant’s hearsay admission is admitted against him and the defendant is unable to cross-examine the codefendant because the latter does not testify.” (People v. Daugherty (1984), 102 Ill. 2d 533, 541, 468 N.E.2d 969, 973.) In the instant case, not only did both defendants testify, but neither pretrial statement was exculpatory; while in their pretrial statements they definitely disagreed over who actually had shot Powell, both defendants’ pretrial statements were clear admissions of guilt according to the statutory and common law theory of accountability. People v. Sanders (1981), 103 Ill. App. 3d 700, 431 N.E.2d 1145, cert, denied (1982), 459 U.S. 871, 74 L. Ed. 2d 131, 103 S. Ct. 157.

“A second type of prejudice occurs when defenses of the various defendants are so antagonistic that a severance is imperative to assure a fair trial.” (People v. Daugherty (1984), 102 Ill. 2d 533, 542, 468 N.E.2d 969, 973.) Such antagonism occurs, for example, when each defendant protests his innocence and condemns the other. (People v. Braune (1936), 363 Ill. 551, 555, 2 N.E.2d 839, 841.) Although both Scott and Cole claim that they were faced with this second type of prejudice and brought it to the trial court’s attention, we do not agree with their characterization of the evidence. First, their pretrial motions were simply generalized statements that antagonism existed and did not contain any of the detailed proof required by People v. Sanford (1983), 116 Ill. App. 3d 834, 452 N.E.2d 710. Second, the antagonism that did develop was not between the defendants’ trial testimony but rather between each defendant’s trial testimony and his codefendant’s pretrial statement.

While each defendant did, in effect, “protest his innocence” in his trial testimony, Scott by claiming self-defense and Cole by claiming withdrawal, neither accused the other of committing murder. Cole's testimony at trial was not antagonistic to Scott’s claim to self-defense because, according to Cole, he left the scene before the shooting and did not look back to see what had happened. His position is entirely consistent with Scott’s claim at trial that Powell’s attack with a knife forced him to shoot in self-defense. As succinctly stated by the State, “defendant asks this Court to assume that because each defendant was impeached with his own pretrial confession in which he implicated his co-defendant, the jury must have focused solely on this impeachment evidence, defied instructions to the contrary and used each defendant’s pretrial statement as substantive evidence of the guilt of the other defendant.” Further, defendants must argue that the jury would not have convicted them absent the improperly considered impeachment evidence. Both arguments are erroneous and entirely inconsistent with one of the basic assumptions underlying the theory of a jury trial, that the jury is able to follow instructions. Opper v. United States of America (1954), 348 U.S. 84, 99 L. Ed. 101, 75 S. Ct. 158.

Even the third motion for severance, made after Cole testified that Detective Roberts had told him during questioning that the police had evidence linking Scott with several other homicides, was not erroneously denied. Prior to trial, Cole’s counsel had agreed to warn Cole against making prejudicial statements concerning Scott and other police investigations, a practice found acceptable in People v. Chianakas (1983), 114 Ill. App. 3d 496, 448 N.E.2d 620. Although the warning apparently never was given, the trial court concluded that a proper admonishment to the jury was sufficient to overcome the prejudice, a discretionary decision with which we agree in light of the other evidence establishing the guilt of both Scott and Cole. Brown v. United States (1973), 411 U.S. 223, 36 L. Ed. 2d 208, 93 S. Ct. 1565.

II

Scott’s second argument on appeal is that his pretrial admission should have been suppressed as it had been obtained in violation of his sixth amendment right to counsel. He maintains that the issuance of a complaint charging him with murder and his arrest pursuant to a warrant constituted the initiation of adversarial judicial proceedings, and therefore his custodial interrogation was a “critical stage” of the prosecution requiring the presence of counsel. (People v. Hinton (1974), 23 Ill. App. 3d 369, 319 N.E.2d 313.) We disagree, based on the recent Illinois Supreme Court decision of People v. Owens (1984), 102 Ill. 2d 88, 464 N.E.2d 261.

In Owens, as here, defendant argued that his sixth amendment right to counsel attached upon the filing of a complaint and issuance of an arrest warrant. Noting that neither the United States nor the Illinois Supreme Court has resolved whether sixth amendment rights attach under those circumstances, the court found that no such resolution was necessary because the validity of defendant’s waiver of those rights was not affected.

In both cases, defendant was informed of his Miranda rights before the commencement of interrogation. The crucial point in Owens was that although defendant claimed that before he could knowingly waive his sixth amendment right to counsel he had a right to be informed that a complaint had been filed charging him with murder, the waiver he signed after acknowledging his Miranda rights was not void for sixth amendment purposes because the defendant already possessed that information. Indeed, in the instant case, Scott admitted that he had lied while making his custodial statement because he was afraid he would be charged with murder.

“Thus, he was aware of the severity of the situation facing him and, since he had been given his Miranda warnings, he knew he had the right to have an attorney present during questioning. Considering these facts, together with defendant’s familiarity with the Miranda warnings, we have no doubt of the admissibility of the statements irrespective of whether sixth amendment rights had attached at the time the statements were made.” People v. Owens (1984), 102 Ill. 2d 88, 102-03, 464 N.E.2d 261, 267.

Accordingly, we find no error in the trial court’s denial of Scott’s motion to suppress his confession based on an alleged violation of a sixth amendment right to counsel.

Defendant Scott also claims that the trial court erred in refusing to suppress his admission because the State failed to call all material witnesses at the suppression hearing and did not explain their absence. We find this claim similarly to be without merit.

In his post-trial motion, Scott claimed that his custodial statement was coerced in part by physical attacks from various unknown black policemen, one who struck him at the time of his arrest and two others who struck him repeatedly while he was in custody. In his appeal, however, defendant complains that because the two white policemen who drove him from his house to the police station did not testify at his suppression hearing, his conviction for murder should be reversed.

We note that section 114 — 11(d) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 114 — 11(d)) requires the defendant to object during the suppression hearing in the trial court to the State’s failure to call all material witnesses to the making of his confession. Further, although the State bears the burden of proving the confession was voluntary, once it makes out a prima facie case of voluntariness, the burden shifts to the defense to produce evidence that the confession was involuntary. (People v. Cukojevic (1981), 103 Ill. App. 3d 711, 431 N.E.2d 1154.) In the instant case, Scott not only offered absolutely no evidence to support his allegation of physical abuse, but he also did not raise any objection during the hearing, as required by statute, to the State’s failure to call the two white officers. We therefore find no error in the trial court’s refusal to suppress Scott’s admission.

Ill

Defendant Scott next contends that his murder conviction should be reversed because he had presented evidence showing that the shooting of Jerome Powell was justified as self-defense, and the jury was compelled to believe that evidence. We find Scott’s contention meritless.

The only evidence Scott presented to support his self-defense theory was his claim that Powell had threatened him with the table knife that was later given by an unidentified child to the policeman investigating the shooting. However, in his pretrial statements, Scott never mentioned self-defense, contending only that he had been the lookout while Cole shot Powell; further, Scott admitted that he had claimed to be only the lookout in an effort to avoid being charged with murder, a charge he had a better chance of avoiding with a believable claim to self-defense.

Although the evidence given by Ricky Jackson, the eyewitness, did not exactly track all the other evidence, the jury found it to be inherently more believable than Scott’s claim of self-defense. Whether certain facts and circumstances would induce a reasonable apprehension of serious bodily harm is a question of fact for the jury. (People v. Moore (1976), 43 Ill. App. 3d 521, 357 N.E.2d 566.) A jury’s finding on the issue of self-defense will not be overturned unless the evidence is so clearly contrary to the finding and renders that finding so improbable that a reasonable doubt is left as to the defendant’s guilt. People v. Barnes (1983), 117 Ill. App. 3d 965, 453 N.E.2d 1371.

It is obvious to us that Scott’s claim was not only contradicted by other testimony but was rendered incredible by his own admission on the stand that he was a liar, a felon, a drug dealer, and a leader in the Black Disciple Nation. We do not agree that, in light of all these factors, Scott’s evidence of self-defense was sufficiently persuasive to create a reasonable doubt of his guilt. Accordingly, we decline to overturn the jury’s decision.

IV

Defendant Scott’s final argument is that prosecutorial misconduct, including impeachment questioning and comments during closing argument, prejudiced his theory of self-defense. We note that because no specific reference was made to the questioned remarks in Scott’s motion for a new trial, they were not sufficiently brought to the attention of the trial court. (People v. Precup (1978), 73 Ill. 2d 7, 382 N.E.2d 227.) The failure to include alleged errors in the post-trial motion constitutes a waiver of those issues on appeal given where objections were made at trial. People v. Thomas (1983), 116 Ill. App. 3d 216, 452 N.E.2d 77.

V

Defendant Cole’s final contention on appeal is that his pretrial statement was contradicted in so many respects by the evidence given by the medical examiner that the jury should have believed his trial testimony asserting that he had withdrawn from participation in the crime before Scott actually shot Powell. We disagree.

First, Cole’s actions, as he described them at trial, were insufficient to constitute withdrawal from participation in the murder in that he never communicated to Scott his intent to withdraw. Such communication is essential to a defense of withdrawal. (People v. Rybka (1959), 16 Ill. 2d 394, 158 N.E.2d 17.) Section 5-2(c) of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 5 — 2(c)) establishes that a person is legally accountable for the conduct of another if before or during the commission of an offense, and with the intent to promote or facilitate such commission, he aids or agrees to aid the other person in the planning or commission of the offense; section 5 — 2(c)(3) of that statute relieves a person of such accountability only if he terminates his efforts to aid in the commission of the offense and deprives his former efforts of effectiveness, warns law enforcement authorities, or otherwise acts to prevent the commission of the offense. According to his own testimony, Cole took none of these latter steps.

Second, the testimony of the eyewitness confirmed Cole’s actions as the lookout, which was the position he admitted to in his pretrial statement. Finding that there was sufficient competent evidence presented upon which the jury could base a verdict of guilty, we hold that there was no error in Cole’s conviction for murder.

In light of all the above, we affirm the decision of the trial court convicting both Scott and Cole of the murder of Jerome Powell.

Affirmed.

JIGANTI, P.J., and JOHNSON, J., concur.


author: JUSTICE WOMBACHER

text:
    GERALD WRIGHT et al., Plaintiffs-Appellees, v. FLORENCE M. WRIGHT et al., Defendants-Appellants (Michael D. Wright, a Minor, Defendant).
    Third District
    No. 3—84—0366
    Opinion filed January 14, 1985.
    Rehearing denied April 1, 1985.

      Stanley L. Tucker and Franklin M. Hartzell, both of Hartzell, Glidden, Tucker, Neff and O’Neal, of Carthage, for appellants.
    Albert V. Ancelet and Ross A. Robinson, both of Capps, Ancelet & Stoverink, of Carthage, for appellees.
   JUSTICE WOMBACHER

delivered the opinion of the court:

This is an appeal by certain objectors from the judgment of the circuit court in this partition action, overruling their objection to the commissioners’ report and ordering sale of the properties at issue. Pursuant to statutory provision (Ill. Rev. Stat. 1983, ch. 110, par. 17— 106), the court had appointed three commissioners to partition the premises among a number of intestate beneficiaries of the estate of Harry M. Wright, the former owner of the properties. The commissioners reported to the court that properties could not be divided without manifest prejudice to the parties in interest. (See Ill. Rev. Stat. 1983, ch. 110, pars. 17-108, 17-116.) Section 17-116" of the Code of Civil Procedure provides for a sale of the properties under these circumstances.

The defendants in the partition action, Florence M. Wright, Eva Nelson, Jean M. Nelson as administrator of the estate of Fred Wright, and Hilda Dienst (hereinafter referred to as “objectors”), filed objections to the report of the commissioners, seeking a partition in kind, or alternatively, a partition in kind with a sale and the award of owelty. The trial judge heard testimony on the objections, overruled them, and approved the report of the commissioners. An order of sale pursuant to the approval was entered. From the decision overruling the objections, approving the report and ordering a sale the objectors now appeal.

The objectors raised issues as to (1) whether the court’s decision overruling the objections and approving the report was contrary to the manifest weight of the evidence; (2) whether the court applied the correct legal standards in making its decision; and (3) whether the burden of proof at the hearing was improperly placed upon the objectors.

The relevant facts in the record indicate that the plaintiffs, all relatives and heirs of Harry Wright, filed a partition action seeking the partition of three parcels of property owned by Harry Wright. By virtue of the intestacy statute, the ownership of the properties was divided among 13 persons, including Harry Wright’s surviving spouse, Florence M. Wright, a defendant in the partition action and an appellant herein. Mrs. Florence Wright had an ownership interest in one-half of the properties, and the other 12 beneficiaries had various interests, from one eighty-fourth to six eighty-fourths. The complaint for partition sought a partition of the three parcels of real estate according to the parties’ respective rights and interests, or alternatively, a sale of the properties with distribution of proceeds, in the event that a partition in kind could not be made without manifest prejudice to the owners. The complaint also requested that the court appoint commissioners to make a partition, or, alternatively, to make an appraisal of the properties. Ill. Rev. Stat. 1983, ch. 110, par. 17 — 108.

The partition action by plaintiffs was contested by the defendants, now appellants and objectors, but the trial court ultimately entered judgment on the pleadings for the plaintiffs, finding the respective interests of the parties to be as alleged in the complaint. In the judgment order the court appointed three commissioners to make a partition, or to make an appraisal of the properties in the event they found it not susceptible to partition without manifest prejudice to the owners. The commissioners filed their report thereafter. They reported that they had undertaken an examination and evaluation of the properties and determined that the properties were not susceptible of division without manifest prejudice to the parties in interest. They also set an appraisal value on each of the three separate parcels of real estate involved in the suit. Objections to the report were filed by the objectors. The objections filed indicated that Florence M. Wright, surviving spouse of Harry Wright, was 87 years of age, having resided on Tract 1 of the three tracts since 1917. It was noted that Florence Wright was the owner of one-half interest in all of the real estate for which a partition was sought. The objectors asserted that it would be in the best interest of all parties if Tract 1 be awarded to Florence M. Wright and the remaining two tracts be sold, with the proceeds divided among the parties, due consideration given to the value of Tract 1 assigned to Florence. It was stated that Tract 1 had been valued at $197,200, that being 41% of the total appraised value of all three parcels. A hearing on the objections was held, at the conclusion of which the court ordered a supplemental report of commissioners to be filed.

In their supplemental report, the commissioners again found that a partition in kind would be prejudicial to the parties in interest. The commissioners, in support of that conclusion, stated that there were differences in improvements, soil types, and values among the properties. They noted that a division into 13 separate tracts would require numerous easements for ingress and egress and create drainage problems. They stated that an attempted physical division would result in many small tracts of five acres or less which would not be as valuable as comparable parts of the larger tract to be sold.

The objectors again filed objections to the commissioners report. In their objections, they argued that the commissioners could have divided some part of the real estate and ordered a sale of the remainder. They contended that the court should make a division in kind, with owelty, so as to arrive at an equitable distribution which retained Tract 1 for Florence Wright. A hearing on the objections was held, at which only one witness, Eva Nelson, daughter of Florence Wright, testified. Her testimony indicated that her mother had some health problems. She also testified that her mother was 87, having lived continuously since 1917 at her home on Tract 1. Counsel for the objectors attempted to inquire into Mrs. Wright’s desires as to the property, but hearsay objection was sustained. No testimony was received with respect to the specifics of the proposed distribution in the objections, nor did testimony attack the findings of the commissioners in their reports. Neither had counsel for the objectors sought to require the appearance of the commissioners, for the purpose of examination on their reports.

The court overruled the objections and approved and confirmed the report by the commissioners. In a memorandum opinion on the post-trial motion, the trial judge indicated that he had considered the question of a partition in kind, with an award of owelty, as requested by the objectors, but that he did not believe such action warranted by the circumstances presented. The court found with the plaintiffs that the objectors’ proposal would not be fair to all parties of interest. The objectors now seek reversal of the judgment on appeal.

As the court noted in Rothert v. Rothert (1982), 109 Ill. App. 3d 911, 916, 441 N.E.2d 179:

“The Partition Act makes no reference to an unequal division of the premises with a payment of owelty. However, the inherent power of the court sitting in equity to make such a division has long been recognized. [Citations.] The law favors a division of land in kind, rather than a division of proceeds from a sale of the land and, therefore, an unequal division with owelty is preferred over a sale of the premises.”

It is also clearly established that a partition sale is proper only where a division cannot be made without prejudice to the rights of interested parties. (Rosenbaum v. Rosenbaum (1976), 38 Ill. App. 3d 1, 15, 349 N.E.2d 73.) In those instances, an essential prerequisite to a decree of sale is the appointment of commissioners and a report by them indicating that the land is not susceptible to partition. (38 Ill. App. 3d 1, 15, 399 N.E.2d 73.) In the instant case, the court appointed the commissioners and they submitted an initial report and a supplemental report, wherein they found that the property could not be divided without manifest prejudice to the parties in interest. Accordingly, they appraised the real estate involved.

The objectors contend that the commissioners failed to give any consideration to their proposal that Tract 1 be set off to the surviving spouse, with the remainder sold at public sale, for distribution. While the record is unclear as to whether the commissioners considered the proposal, the determinative fact is that the court considered the proposal, as is evident from his memorandum opinion. Moreover, as noted above, it is the court, sitting in equity in partition cases, which has the power to order a partition in kind, with owelty, and not the commissioners. The decision in such matters is within the trial court’s discretion. In this case, the court considered the proposal of the objectors and rejected it as being inequitable to all parties in interest. After hearing evidence on the objections, he found that the commissioners were correct in concluding that a partition in kind could not be accomplished without manifest prejudice to all the owners. We find no basis to conclude that this decision is contrary to the manifest weight of the evidence.

While, as asserted by the objectors, a partition action is an adversary proceeding (Rosenbaum v. Rosenbaum (1976), 38 Ill. App. 3d 1, 14, 349 N.E.2d 73) with the plaintiff having the burden of proof for affirmative allegations in the petition, the findings and conclusions of the commissioners are not allegations of the plaintiff. The commissioners having been duly appointed, and having filed their report, as directed, the burden is upon those objecting to the report to support their objections. (Miller v. Lanning (1904), 211 Ill. 620, 623; Watke v. Stine (1905), 214 Ill. 563, 567.) Absent valid objections, supported by sufficient evidence, a court is justified in relying upon the report of the commissioners. (Miller v. Lanning (1904) 211 Ill. 620, 623.) We find that the objectors failed to present sufficient evidence in support of their claims that the commissioners’ report was in error. The only witness for the objectors testified solely about Florence Wright’s health and her long residency on the property. No evidence was presented to contradict the findings of the commissioners or their conclusions. Neither were the commissioners asked or subpoenaed to appear for purposes of examination by objectors’ counsel. Absent evidence indicating errors or omissions in the report, the court was justified in approving and confirming it. There is no requirement, in the statute or elsewhere, that the commissioners are obligated to testify at the hearing on objections to their report. If an objector wishes to examine the commissioners on the report, clearly he has that right. Absent the parties’ request or notice that a commissioner is to appear, there is no obligation to appear and testify.

In summary, the court, following statutory procedure, appointed commissioners to examine the property and report back. The commissioners did so, indicating their findings and conclusions. The trial court considered the objections to the report, including the proposal for a partial division in kind, with owelty, and overruled them, approving and confirming the report of the commissioners. That decision was based upon the established law and was not shown to be contrary to the manifest weight of the evidence.

For these reasons, the judgment of the circuit court of Hancock County is affirmed.

Affirmed.

STOUDER and BARRY, JJ., concur.