text:
    BRENT KLIMEK et al., Plaintiffs-Appellees and Cross-Appellants, v. ALFRED STEPHEN HITCH, Defendant-Appellant and Cross-Appellee.
    Fourth District
    No. 4—83—0752
    Opinion filed June 14, 1984.

      Costigan & Wollrab, of Bloomington, for appellant.
    Kinate & Morgan, of Fairbury, for appellees.
   JUSTICE GREEN

delivered the opinion of the court:

On October 30, 1980, plaintiffs, Brent and Claudia Klimek, brought an action for trespass in the circuit court of Livingston County against defendant, Alfred Stephen Hitch. After a trial by jury, a judgment was entered on November 18, 1982, in favor of plaintiffs and against defendant in the sum of $8,500 for compensatory damages and $14,500 for punitive damages. The trial court then allowed defendant’s post-trial motion request for a new trial as to all questions of damages. Pursuant to plaintiffs’ motion for a remittitur, the court ruled that plaintiffs could negate the order for a new trial by consenting to a remittitur (1) of the compensatory damage award by $2,500 to the sum of $6,000, and (2) of the punitive damage award by $12,000 to the sum of $2,500. Plaintiffs refused the remittitur and a new jury trial was held. On September 13, 1983, the court entered a judgment on a verdict awarding plaintiffs $10 compensatory damages and $25,000 punitive damages. The trial court denied defendant’s request for another new trial.

After plaintiffs rejected the remittitur upon the award of the new trial, they sought leave to appeal to this court pursuant to Supreme Court Rule 306 (87 Ill. 2d R. 306). We denied leave to appeal. Defendant now appeals the portion of the judgment entered after the second trial which awarded plaintiffs $25,000 in punitive damages. Plaintiffs cross-appeal, contending that the trial court erred in its granting of a new trial after the first trial.

The evidence was much the same at the two trials. When the difference is significant, we will discuss the evidence at the trial in which the verdict in issue was rendered. Plaintiffs were shown to own an 18-acre tract near Chatsworth upon which a dwelling house, a barn, and a garage were located. They had purchased the parcel in 1973 pursuant to an installment contract for a total price of $21,000. Two hedgerows grew along the north and east boundaries of the property consisting of Osage orange hedge, horse weeds, wild plum, black cherry, mulberry, elm, multiflora rose, wild gooseberry and wild asparagus. The hedgerow was approximately one-quarter mile long and varied from 20 to 25 feet in width. The dispute giving rise to this litigation arose when defendant, an adjoining landowner, acting without plaintiffs’ consent, went on plaintiffs’ land in the vicinity of the hedgerow in July of 1976 and, with the aid of a bulldozer operator and the use of a chain saw, removed the hedgerow.

We first rule upon the cross-appeal. Crucial to that decision is our determination as to whether the $8,500 award of compensatory damages should have been set aside. If the award of the new trial on that issue was correct, we need not consider the question of whether the punitive damage award should have been set aside, because plaintiffs received a larger award at the second trial, and the amount of that award which we are permitting to stand is equal to the award at the first trial.

Several witnesses testified as to whether plaintiffs sustained damages as a result of defendant’s trespass and, if so, the amount of the damage. Plaintiff, Brent Klimek, and James Kiley, an appraiser, testified for plaintiffs, stating their opinions of the value of the premises before and after the trespass, thus formulating a basis for determining the diminution in value of the property resulting from the removal of the hedgerow. Two appraisers testified for the defendant. Each stated that, in his opinion, the removal did not decrease the value of the property. Of all the witnesses who testified, none but plaintiff Brent Klimek gave an opinion of compensatory damages as large as the $8,500 awarded by the jury. He testified that, in his opinion, the property was worth $75,000 before the trespass and $60,000 thereafter. The question of the sufficiency of the evidence to support the $48,500 award centers on the significance of that plaintiff’s testimony.

James Kiley was shown to have considerable appraisal experience. He testified that the tract was worth $66,000 before the removal of the hedgerow and $60,000 afterwards. Mr. Kiley also testified that the property had subdivision potential. When asked whether, if the property “were subdivided,” a greater reduction in value would have taken place as a result of the removal of the hedgerow, Mr. Kiley indicated that, in his opinion, there would be a $9,000 reduction in value. However, he did not say that the potential for subdivision existing at the time of trespass was such that the reduction would have been in the amount of $9,000. Rather, his opinion was couched in terms of what would have been the situation if the property were subdivided.

Arthur Korte, a real estate salesman with 30 years’ experience, and Jack Kennedy, an agricultural loan officer and farm manager for a bank, were the appraisal witnesses who testified for defendant and stated opinions that the value of the property was not diminished by the cutting of the hedgerow. Richard Miller, a farmer with a college degree in agricultural economics and rural sociology testified for plaintiffs in rebuttal. He explained how the existence of the hedgerow served as a natural habitat for wild life. Other testimony indicated that the hedgerow served as a windbreak. Nevertheless, the hedgerow was shown to be a disadvantage when the property was used for agricultural purposes, because it reduced the area that could be tilled and also interfered with the operation of farm machinery which came close to it.

Plaintiffs maintain that the testimony of Brent Klimek justified the $8,500 award of compensatory damages, because the award was within his estimate of $15,000 reduction in value resulting from the removal. They maintain that his testimony was admissible, and that when the question of diminution of the value of land is in issue, a court should not upset a damage award that is within the range of the opinion testimony of witnesses except under very rare circumstances. The trial court admitted Mr. Klimek’s testimony, and the question of its admissibility is not before us. However, we examine the theory upon which it was admitted in order to determine the deference we must give the testimony.

In Department of Transportation v. Harper (1978), 64 Ill. App. 3d 732, 381 N.E.2d 843, a condemnation case, the owners of the land to be condemned were permitted by the trial court, over objection, to testify to their opinions as to the value of the property being condemned and damages to the remainder of their land not taken. The least qualified of the two owners did not testify whether he was familiar with the value of land in the area, nor did he show that he had any other expertise. In testifying to his estimate of values, he was directed by the examining counsel to consider the size of his land, the improvements thereon, and his general familiarity with the property. The other landowner was shown to have knowledge of real estate values in the area. The opinions of the landowners were the only testimony on their behalf giving opinions as to values. The jury returned verdicts nearer in amount to the appraisals of the petitioners’ witness than that of the owners. On appeal by the petitioners, the appellate court affirmed.

The Harper court recognized Illinois cases had held that any witness with knowledge of property to be condemned and real estate values in the area was competent to give an opinion as to value in a condemnation case. (Trustees of Schools v. Kirane (1955), 5 Ill. 2d 64, 124 N.E.2d 886; Department of Public Works & Buildings v. Atkins (1966), 68 Ill. App. 2d 98, 215 N.E.2d 452.) However, the court also recognized that no Illinois court of review had passed upon the question of whether a landowner was permitted to give such an opinion as to the values connected with his own land with any less foundation than that required of other witnesses. The court recognized that some States permit an owner to give his opinion without foundation while other States require the minimum foundation set forth for all witnesses in Kirane. The court concluded that a proper rule would be that an owner could testify as to the values of his own property, unless he was affirmatively shown not to have realistic knowledge of the attributes of the property that would give it value. The court held that (1) the burden was on the condemning authority to show that the owner lacked the required knowledge; and (2) in any event, knowledge of land values in the area was not necessary to make the landowner competent.

In affirming the trial court’s decision, the Harper court also applied the rule that, in condemnation cases, when the jury views the premises, and when the amount of compensation fixed by the jury is within the range of the evidénce, that determination will not be upset “unless it is clearly in error or the result of passion or prejudice.” (Department of Transportation v. Harper (1978), 64 Ill. App. 3d 732, 736, 381 N.E.2d 843, 847.) This rule has been pronounced in numerous cases. See Trustees of Schools v. Schroeder (1961), 23 Ill. 2d 74, 177 N.E.2d 178; Lake County Forest Preserve District v. Continental Illinois National Bank & Trust Co. (1976), 35 Ill. App. 3d 942, 343 N.E.2d 6.

The Harper court not only admitted the one landowner’s testimony which had little foundation but also permitted that landowner’s opinions of value and damage to form the upper limit of the area in which awards must be approved unless “clearly in error or the result of passion or prejudice.” We need not decide whether we would follow Harper in every detail, because this case was brought for trespass and not in condemnation. Furthermore, unlike the condemnation cases where the verdict is approved if it is within the range of the opinion testimony, the jury here did not view the premises. We conclude that the rule by which the testimony in determining the amount of damages should be viewed is the usual rule set forth by the supreme court that the jury verdict should be overturned and a new trial granted only if the verdict is contrary to the manifest weight of the evidence. (Mizowek v. De Franco (1976), 64 Ill. 2d 303, 356 N.E.2d 32.) We consider the plaintiffs’ proof of compensatory damages in this light.

Mr. Klimek testified describing the property and the aesthetic nature of the hedgerow in detail. He also testified that the plaintiffs had purchased the property in 1973 for $21,000 and had made improvements to the house which was then vacant and run-down. He did not testify to any knowledge of property values in the area. We agree with the trial court that his testimony concerning property values was worth very little. There was no substantial testimony that fixed the diminution in the value of the premises as greater than the $6,000 testified to by James Kiley. We agree with the trial court that the award of $8,500 was contrary to the manifest weight of the evidence. The trial court did not err in granting a new trial.

We now turn to the award of $25,000 in punitive damages made at retrial. Defendant testified that he thought Mrs. Joyce Howell Lindelof had obtained the property in a divorce settlement with her former husband and had authority to authorize him to remove the hedgerow. However, although Mrs. Lindelof and her former husband formerly had interests in the property, and Mrs. Lindelof had executed a deed to Brent Klimek in 1980, the evidence was undisputed that defendant knew plaintiffs had been in possession of the property for several years and had, in fact, rented portions of the acreage to defendant. Plaintiff, Claudia Klimek, testified that when she saw defendant tearing down the hedgerow, she asked him to stop, but he refused to do so. The jury could properly have determined that defendant eliminated the hedgerow knowing full well that he had no right to do so.

Much evidence was introduced as to the importance the plaintiffs placed on the hedgerow, and how it increased the enjoyment they obtained from living there. While the hedgerow was not shown to have increased the market value of the premises to the amount of the damage award, the plaintiffs’ enjoyment of the hedgerow was a proper matter for consideration in the award of punitive damages. Although defendant could have thought that removing the hedgerow would benefit the agricultural potential of both his and plaintiffs’ land, he should have been more sensitive to their desires to retain the hedge for other reasons. In any event, plaintiffs had a right to have the hedge remain as they wanted it.

In Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 384 N.E.2d 353, the supreme court discussed punitive damages in detail. The court noted that the function of such damages is similar to that of a criminal penalty, i.e., as a punishment to the wrongdoer and a deterrent to others who might attempt to engage in similar conduct. Because of the penal nature of punitive damages, the court indicated that such damages were not favored, and courts must take caution to see that they are not improperly or unwisely awarded. However, the court’s definition of the conduct giving rise to such damages would include the wilful and wanton disregard of plaintiffs’ rights which the jury apparently found defendant to have committed here.

In Hazelwood v. Illinois Central Gulf R.R. (1983), 114 Ill. App. 3d 703, 450 N.E.2d 1199, this court considered that in determining whether an award was excessive, the reviewing court should consider, in addition to the nature and enormity of the wrong, also (1) the financial status of the defendant, and (2) the potential liability of the defendant. Here, as with most farmers, defendant’s financial status was not easy to ascertain. He testified that he was buying, from two aunts, an 80-acre farm which he operated, and upon which he had built a house in which he lived. He testified to having little equipment, and that he had lost most of it immediately prior to trial. He said that he had made no payment to his aunts on the purchase contract for the farm and that he had little, if any, money in bank accounts. He was farming another 160 acres in addition to the 80-acre tract he owned and had about $15,000 worth of equipment with about a similar amount of liabilities. Defendant has no other potential liability arising from the occurrence.

Mr. Justice Mills, in writing the opinion in Hazelwood, stated that a punitive damage award “should send a message loud enough to be heard but not so loud as to deafen the listener. A deafening award is excessive.” (114 Ill. App. 3d 703, 713, 450 N.E.2d 1199, 1207.) Considering the nature of the wrong here and defendant’s financial situation in the face of an uncertain farm economy, we conclude that a substantial punitive damage award was supported by the evidence, but that the sum of $25,000 is excessive. As the case has been tried twice before, rather than ordering another new trial, we reduce the award to the sum of $14,500 which we deem to be the highest amount that could be justified. In reducing the award ourselves, rather than order a new trial, we are following the precedent of this court in Hazelwood and that of the Fifth District in Stambaugh v. International Harvester Co. (1982), 106 Ill. App. 3d 1, 435 N.E.2d 729, rev’d on other grounds (1984), 102 Ill. 2d 250.

As we have indicated, we affirm the order of the trial court entered after the first trial, awarding a new trial, and affirm the awarding of punitive damages at the second trial but reduce the amount of the judgment for those damages to the sum of $14,500.

Affirmed in part; modified as directed.

MILLS, P.J., and MILLER, J., concur.


source: Caselaw Access Project

author: JUSTICE MILLER

license: Public Domain

text:
    WILLIAM R. EDWARDS et al., Plaintiffs-Appellants, v. THE CITY OF QUINCY et al., Defendants-Appellees.
    Fourth District
    No. 4—83—0683
    Opinion filed May 30, 1984.

      David C. Little, of Quincy, for appellants.
    James L. Palmer, of Scholz, Staff & Palmer, and Loren E. Schnack, of ¡ Loos, Schnack & Siebers, both of Quincy, for appellees.
   JUSTICE MILLER

delivered the opinion of the court:

The plaintiffs, William and Verlee Edwards, sued the defendants, the city of Quincy and city officials, to recover damages for alleged statutory and constitutional violations. Acting on the defendants’ motion to dismiss, the trial court held the doctrines of res judicata and collateral estoppel along with the operation of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1981, ch. 85, par. 1 — 101 et seq.) barred the plaintiffs’ suit. The plaintiffs appeal, and we affirm. Because we decide that res judicata bars the plaintiffs’ suit, we need not address the issue of whether the act is also a bar.

On April 4, 1979, the plaintiffs agreed to purchase property in the city of Quincy. The building on the property was operated as a beauty parlor, a valid nonconforming use under the city’s zoning ordinance. The plaintiffs conditioned their offer to purchase on their ability to use the property as a cocktail lounge and restaurant, also a nonconforming use. The plaintiffs contacted city officials, and after they concluded they could get a building permit to remodel, they purchased the property.

On June 19, 1979, the plaintiffs applied for their building permit. Instead of their permit, the plaintiffs received a letter advising them that their application had been rejected because their proposed use of the property violated the zoning ordinance. The plaintiffs appealed to the zoning board of appeals for the city of Quincy. Before the appeal was heard, the city council approved a resolution directing the building inspector to delay issuance of permits involving a shifting of nonconforming uses.

On August 2, 1979, the board held a hearing. Judi Maas, secretary to the city’s planning commission, testified the plaintiffs had inquired about the zoning ordinance. She had sent them a letter stating that as long as a building is not enlarged, reconstructed, or structurally altered, it could be used for a different nonconforming use.

Dave Wilson, the city’s building inspector, also testified. Wilson had always interpreted the ordinance to exclude only extensions, enlargements, or structural alterations on the outside of the building. He informed the plaintiffs of this interpretation. Wilson accepted the plaintiffs’ money for a permit when the plaintiffs applied. He also signed the application stating that it was approved by the building inspector. Later, the corporation counsel, James Rapp, instructed Wilson to scratch out “approved” and put in “accepted.”

William Edwards testified that besides checking with the building inspector and the planning commission, he also asked the mayor whether his nonconforming use was permissible. After the mayor stated it was, Edwards bought the property.

The board also heard evidence on the remodeling the plaintiffs wanted to do. The plaintiffs intended to remodel only the interior of the building. Finally, the evidence showed the building had previously been operated as a beauty parlor and as a bakery, both nonconforming uses.

On August 15, 1979, the board issued its opinion and denied the permit. On September 5, 1979, the city council amended its zoning ordinance to eliminate shifting of nonconforming uses which altered the character of a neighborhood. The city council approved the board’s decision on September 10, 1979.

On September 19, 1979, the plaintiffs filed an administrative review suit. Count I alleged the board’s decision was arbitrary, discriminatory, unconstitutional, contrary to law, and not supported by the evidence. The complaint asserted the board’s decision would result in unnecessary and undue hardship to the plaintiffs, and amounted to a taking of property without due process of law. Counts II and III made the same allegations against the city council and the city itself.

The plaintiffs later filed an amendment to their complaint. They alleged they were denied a fair and impartial hearing because only four of the seven members of the board heard their appeal, and the board failed to conduct an open meeting. The trial court granted a motion to strike the amendment because the issues it raised were not raised before the board.

The trial court remanded the case to the board to make specific findings of fact. The board did so, but the court later rejected these findings. On July 25, 1980, the court reversed the board’s decision and ordered the city to issue the permit. The city appealed, and we reversed the trial court in Edwards v. Zoning Board of Appeals (1981), 95 Ill. App. 3d 455, 420 N.E.2d 228, holding the plaintiffs were not entitled to their permit under the ordinance.

On November 19, 1982, the plaintiffs filed their present complaint seeking compensatory damages. They first allege city officials assured them they could get a permit and they bought in reliance on these assurances. They also contend the city had an established local governmental standard which entitled them to their permit. They maintain that Rapp illegally instructed Wilson to alter their permit application. The plaintiffs further assert the board denied them due process because only four members heard their appeal, and the board failed to conduct a fair and impartial hearing when deliberating on the case and later on remandment. They contend the city council illegally directed the building inspector to withhold permits. The plaintiffs conclude the defendants’ actions deprived them of due process and equal protection and amounted to a taking of property without just compensation. They seek damages for reduction in market value and lost use of their property as well as other expenses relating to the establishment of the proposed business.

The defendants filed a motion to dismiss the complaint with prejudice. On July 15, 1983, the trial court granted the motion. The court held the decision in Edwards barred the plaintiffs’ present suit. The court also held the Local Governmental and Governmental Employees Tort Immunity Act also barred this suit.

The doctrine of res judicata prohibits repetitive litigation to enhance judicial economy and to protect litigants from the burden of retrying an identical cause of action or issue with the same party or a privy. Under the doctrine, a final judgment rendered by a court of competent jurisdiction on the merits bars absolutely a subsequent action involving the same cause of action or issue between the same parties or their privies. Spiller v. Continental Tube Co. (1983), 95 Ill. 2d 423, 432, 447 N.E.2d 834, 838.

A party invoking res judicata must not only plead the former action as a bar, but must also prove the existence and character of the former judgment as well as its legal effect. (La Salle National Bank v. County of Du Page (1979), 77 Ill. App. 3d 562, 564, 396 N.E.2d 48, 50.) The plaintiffs contend the defendants failed to properly plead and prove the judgment in Edwards as a bar because they never produced the record in Edwards. Instead, the defendants asked the court to take judicial notice of Edwards.

Under Supreme Court Rule 133(b), when pleading a judgment, a party need only state the date of its entry, describe its general nature, and allege generally that it was duly made. (87 Ill. 2d R. 133(b).) This rule applies to judgments pleaded in motions to dismiss based upon res judicata. (Gudgel v. St. Louis Fire & Marine Insurance Co. (1971), 1 Ill. App. 3d 765, 274 N.E.2d 597.) The defendants properly pleaded the decision in Edwards. Once a party pleads the former judgment, Rule 133(b) allows the court to take judicial notice of it. (Wascher v. Lundeen (1969), 111 Ill. App. 2d 452, 250 N.E.2d 318.) Therefore, production of the record is not required.

We outlined the scope of res judicata in Redfern v. Sullivan (1982), 111 Ill. App. 3d 372, 375, 444 N.E.2d 205, 208:

“The doctrine of res judicata is divided into two branches: estoppel by judgment, sometimes referred to as res judicata, and estoppel by verdict, also known as collateral estoppel. Hasset Storage Warehouse, Inc. v. Board of Election Commissioners (1979), 69 Ill. App. 3d 972 [25 Ill. Dec. 909], 387 N.E.2d 785.
Estoppel by judgment (res judicata) provides that a valid judgment in a previous action between the parties bars a subsequent action between those parties on the same claim or cause of action. The doctrine applies not only to those issues which were actually raised in the first proceeding, but also to any issues which might have been raised in that proceeding.”

Under the estoppel by judgment branch, therefore, a final judgment bars a second suit where the parties and the cause of action are identical. Redfern v. Sullivan (1982), 111 Ill. App. 3d 372, 376, 444 N.E.2d 205, 208.

The plaintiffs assert the parties named in this suit are not identical to the parties in Edwards. While the plaintiffs are the same, the defendants named in Edwards were the city, the city council, and the zoning board of appeals. The plaintiffs first contend the individual members of the city council and the board are not identical to the council or the board themselves. The effect of res judicata, however, is the same whether the suit is brought against an administrative body or its individual members. Consolidated Distilled Products, Inc. v. Allphin (1978), 73 Ill. 2d 19, 382 N.E.2d 217.

The plaintiffs next point out that the building inspector, the corporation counsel, and his assistant are parties here, while they were not in Edwards. These individuals are agents and employees of the city, and the city, which can only function through the actions of its agents and employees, can be held liable only under a respondeat superior theory. Melbourne Corp. v. City of Chicago (1979), 76 Ill. App. 3d 595, 604, 394 N.E.2d 1291, 1295.

Res judicata has special applicability in suits against masters or servants. As the supreme court stated in Towns v. Yellow Cab Co. (1978), 73 Ill. 2d 113, 124, 382 N.E.2d 1217, 1221-22:

“In this regard, it has been said that the liability of the master and servant for the acts of the servant is deemed that of one tortfeasor and is a unified or consolidated one. (Aldridge v. Fox (1952), 348 Ill. App. 96.) As such, any legal claim against the master must be said to be identical to that which the plaintiff may have asserted against the servant. The operative facts which comprise the alleged bases for liability of the master are identical to those which would prove the servant liable. Indeed, if the agency relationship is not in dispute, any act of the servant- which renders the master liable also renders the servant liable. A judgment, therefore, adjudicating the master not liable, where a judgment to the contrary could have only resulted from a finding that the servant committed an actionable wrong against the plaintiff, is a judgment in legal effect that the servant is not liable.”

Because the claims against the agents and employees of the city are predicated on the same acts which form the basis of the city’s liability, those claims are barred if the prior judgment in Edwards bars the present suit against the city. Neuberg v. Michael Reese Hospital & Medical Center (1983), 118 Ill. App. 3d 93, 100, 454 N.E.2d 684, 689-90.

The issue, therefore, is whether the cause of action in this suit is identical to the one in Edwards. The plaintiffs rely mainly on the difference in relief sought to establish a difference in the causes of action. In Edwards, they sought issuance of a building permit, while currently they seek money damages. Generally, where one suit seeks the performance of an act, and another a money judgment, the causes of action are not the same. Renner v. Greathouse (1957), 12 Ill. App. 2d 338, 341, 139 N.E.2d 825, 827.

Besides Renner, the plaintiffs cite other cases in which a court held the difference in relief sought amounted to a difference in the cause of action. (LaGrange Federal Savings & Loan Association v. Rock River Corp. (1981), 97 Ill. App. 3d 712, 423 N.E.2d 496; In re Estate of Heyder (1964), 48 Ill. App. 2d 119, 198 N.E.2d 350.) The rulings in these cases are based upon the rationale set forth in Pillsbury v. Early (1927), 324 Ill. 562, 155 N.E. 475. Pillsbury involved a suit for specific performance of a contract, which the plaintiff lost, and a subsequent suit for money damages. The court stated that in order to receive specific performance, a plaintiff had to prove an express contract existed by clear and convincing proof. To recover damages, however, a plaintiff need not prove an express contract existed, for he could recover on an implied contract as well. The judgment in the first suit, therefore, would not bar the second suit. (324 Ill. 562, 565, 155 N.E. 475, 477.) The important distinction between the causes of action was not the difference in relief sought, but rather, the evidence necessary to sustain a verdict in the second suit would not have sustained one in the first. In each of the cases the plaintiffs cite, this same difference in the evidence necessary for a verdict in the second suit was present.

A party cannot evade the effect of res judicata merely by changing the form of his complaint. (City of Des Plaines v. Metropolitan Sanitary District (1973), 16 Ill. App. 3d 23, 305 N.E.2d 639, rev’d (1974), 59 Ill. 2d 29, 319 N.E.2d 9.) A cause of action consists of a right belonging to the plaintiff which the defendant violates by some wrongful act or omission. (City of Elmhurst v. Kegerreis (1945), 392 Ill. 195, 205, 64 N.E.2d 450, 454.) Even if one group of facts gives rise to different claims for relief, there remains a single cause of action. (Morris v. Union Oil Co. (1981), 96 Ill. App. 3d 148, 157, 421 N.E.2d 278, 285.) The test is whether the causes of action are based upon a common core of operative facts or whether the evidence necessary to sustain the second verdict would have sustained the first. Redfern v. Sullivan (1982), 111 Ill. App. 3d 372, 376, 444 N.E.2d 205, 208.

Both the present suit and Edwards arose out of a common core of operative facts. The present complaint, like the Edwards suit, is based upon the city’s action in denying the plaintiffs’ building permit. The identical statutory and constitutional violations they now allege were asserted in either their complaint or their amended complaint in Edwards. The only real difference is the relief requested. In Edwards, the plaintiffs sought reversal of the board’s decision to deny their permit. If any of the constitutional or statutory violations that the plaintiffs now allege did occur, then they would have been entitled to a verdict in their favor in Edwards.

The plaintiffs now assert an estoppel theory, which was not alleged in their complaint in Edwards. They contend the city had an established standard for application of the ordinance, and they relied on the assurances of city officials when buying their property. While the plaintiffs did not make this claim in Edwards, the evidence they now allege in support of their claim was presented in the hearing before the board. If the plaintiffs could have recovered their permit in Edwards under this theory, their present claim is barred.

Generally, a city cannot be estopped by an act of its agent beyond the authority conferred upon him. This general rule, however, is qualified to enable a party to invoke estoppel when municipal officers induced his action and to prevent the municipality from stultifying itself by retracting what its agents have done, where the party would suffer substantial loss in the absence of such relief. Cities Service Oil Co. v. City of Des Plaines (1961), 21 Ill. 2d 157, 161, 171 N.E.2d 605, 607-08.

In Cities Service, the plaintiff inquired and city officials gave him a copy of a zoning ordinance no longer in effect. The plaintiff got a building permit and spent substantial sums to purchase and improve property. Later, the permit was revoked because it violated the valid ordinance. The supreme court held the city was estopped to deny the permit because the city officials had induced the plaintiff’s actions.

The plaintiffs in this case did not have to show they were actually issued a permit to invoke estoppel. In COS Corp. v. City of Evanston (1963), 27 Ill. 2d 570, 576-77, 190 N.E.2d 364, 367-68, the court held the plaintiffs’ substantial change in position by expenditures in reliance on the probability of issuance of a permit, based upon the existing ordinance together with the assurances of the city officials, entitled the plaintiffs to the issuance of the permit. The plaintiffs, therefore, could have received their permit based on the same evidence that they now claim entitles them to damages.

The plaintiffs complain the action in Edwards was only for administrative review. They incorrectly maintain they could not raise their constitutional and statutory claims in that setting. The purpose of administrative review is to make certain the agency has acted within its judicial bounds defined by law, to guard those statutory and constitutional rights guaranteed to one subject to administrative action, and to ascertain whether the record supports the order issued. (Piotrowski v. State Police Merit Board (1980), 85 Ill. App. 3d 369, 374, 406 N.E.2d 863, 866.) The reviewing court should also determine whether the person received a fair and impartial hearing before the administrative body. Golden Egg Club, Inc. v. Illinois Liquor Control Com. (1970), 124 Ill. App. 2d 241, 260 N.E.2d 329.

The plaintiffs point out that the res judicata effect usually affixes to the administrative decision rather than the reviewing court’s decision. (Godare v. Sterling Steel Casting Co. (1981), 103 Ill. App. 3d 46, 50, 430 N.E.2d 620, 623.) They conclude their constitutional claims are not barred because the board could not consider them. If there is any discrepancy between the court’s and the administrative decision, however, the res judicata effect affixes to the reviewing court’s decision. (La Salle National Bank v. City of Chicago (1977), 54 Ill. App. 3d 944, 369 N.E.2d 1363.) The reviewing court’s judgment, therefore, is res judicata to all issues raised before it, and all issues which could have been raised on the record but were not are deemed waived. People v. Mitchell (1981), 95 Ill. App. 3d 779, 791, 420 N.E.2d 415, 424.

Finally, the plaintiffs contend this case involves different proof than Edwards. The only proof necessary in Edwards was evidence of the proposed use of the property and the interpretation of the ordinance because the only issue decided was whether the plaintiffs were entitled to their permit under the ordinance. The plaintiffs assert the proof in this suit will consist of evidence of conspiracy, violations of statutory rights, and oral and written communications.

The plaintiffs misconstrue the scope of res judicata. It applies not only to issues actually raised, but also to any issues which might have been raised. The record in Edwards contains the same evidence upon which the plaintiffs base their present complaint. The issues in Edwards were limited due to the theory under which the plaintiffs sued, but the issues the plaintiffs now raise could have been raised in that suit.

The second branch of res judicata, estoppel by verdict or collateral estoppel, also bars the present suit. An adjudication of a controlling fact or issue between the parties precludes relitigation of that fact or issue. The issue must actually or necessarily have been decided by a court of competent jurisdiction in an earlier proceeding, and if any uncertainty exists, the doctrine will not be applied. Redfern v. Sullivan (1982), 111 Ill. App. 3d 372, 376-77, 444 N.E.2d 205, 208-09.) Only the party against whom the estoppel is asserted must have been a party, or a privy of a party, in the prior proceeding. Illinois State Chamber of Commerce v. Pollution Control Board (1979), 78 Ill. 2d 1, 398 N.E.2d 9.

The plaintiffs contend the only issue decided in Edwards was whether they were entitled to their permit. We held they were not. While they concede they cannot now recover that permit, they claim damages which stem from the denial of the permit. If they cannot now prove they were entitled to the permit, however, they cannot recover these damages. The plaintiffs had an opportunity to prove the defendants wrongfully denied their permit, and they cannot relitigate the issue merely because they are unhappy with the previous result.

The order of the trial court granting the defendants’ motion to dismiss with prejudice is affirmed.

Affirmed.

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


author: JUSTICE WEBBER

text:
    DRIVES, INC., Appellant, v. THE INDUSTRIAL COMMISSION et al. (Janice Kay Den Besten, Appellee).
    Fourth District (Industrial Commission Division)
    No. 4—84—0100 WC
    Opinion filed May 31, 1984.
    John E. Cunningham, of Burgeson, Laughlin, Cunningham & Hare, of Chicago, for appellant.
    Richard R. Haldeman and Lynn K. Bruggen, both of Williams & McCarthy, of Rockford, for appellee.
   JUSTICE WEBBER

delivered the opinion of the court:

This appeal requires us to construe section 7(a) of the Workers’ Compensation Act (Ill. Rev. Stat. 1981, ch. 48, par. 138.7(a)). There is no controversy over the facts, and the case presents only issues of law.

The claimant, Janice Kay Den Besten Reitsema, was the child of Alfred Den Besten, who with his wife was killed in an airplane crash on September 23, 1977. There is no question of accident or employment. At the time of her father’s death, Janice was 21 years of age and enrolled as an undergraduate in her senior year in college; she was totally dependent upon her father for support. During that year, specifically on March 17, 1978, she married James Reitsema, who was also a student, and continued her studies until graduation in August 1978. After graduating, Janice was employed by the public school system of Grand Rapids, Michigan, and worked there as a teacher during 1978 and 1979. In 1980 she and her husband moved to the State of Colorado, where she became employed teaching special education.

Under Colorado law a master’s degree is required in order to be qualified as a special-education teacher. Therefore, Janice enrolled in the University of Denver in August 1980 and received her master’s degree in August 1981. She became 25 years of age after completing the work on her master’s degree.

At the time of this claim, the statute provided in pertinent part:

“If the employee leaves surviving a widow, widower, child or children, the applicable weekly compensation rate computed in accordance with subparagraph 2 of the paragraph (b) of Section 8, shall be made payable during the life of the widow or widower and if any surviving child or children shall not be physically or mentally incapacitated then until the death of the widow or widower until the youngest child shall reach the age of 18, whichever shall come later; provided that if such child or children shall be enrolled as a full-time student in any accredited educational institution, the payments shall continue until such child has attained the age of 25. In the event any surviving child or children shall be physically or mentally incapacitated, the payments shall continue for the duration of such incapacity.
The term ‘child’ means a child whom the deceased employee left surviving, including a posthumous child, a child legally adopted, a child whom the deceased employee was legally obligated to support or a child to whom the deceased employee stood in loco parentis. The term ‘children’ means the plural of ‘child.’ ” Ill. Rev. Stat. 1977, ch. 48, par. 138.7(a).

The arbitrator awarded the claimant benefits from the date of the death of her father, but disallowed them from the date of her marriage. On review, the Commission reversed the arbitrator and awarded her benefits for all periods during which she was enrolled as a full-time student prior to attaining age 25. The circuit court of McLean County confirmed the Commission’s order and the father’s employer has appealed. We affirm.

The respondent does not dispute that the claimant was entitled to benefits until the time of her marriage. However, it presents two issues on appeal: (1) whether the benefits should terminate upon marriage, since there was no longer a legal obligation upon the decedent to support the claimant, and (2) whether the benefits should terminate when education is interrupted.

As to the first issue, claimant maintains that her marriage is irrelevant, so long as she is a full-time student. We agree. Respondent’s argument was proper under the former statute, which provided in pertinent part:

“The term ‘such child’ means a child whom the deceased employee left surviving including a posthumous child or a child legally adopted before the accident, and who, at the time of the employee’s death was under 16 years of age or who at the time of the employee’s death had reached 16 but was still under 18 and was then not emancipated and is shown to have been substantially dependent upon the employee for support. The term ‘such children’ means the plural of ‘such child.’ ” (Ill. Rev. Stat. 1973, ch. 48, par. 138.7(a).)

Under this provision, the test for benefits was the deceased parents’ “legal obligation to support” and emancipated children over 18 had been allowed to recover under the Act based solely on the support obligation. Snyder v. Industrial Com. (1969), 42 Ill. 2d 18, 244 N.E.2d 601.

The statute was amended, effective July 1, 1975, to provide a broader eligibility test, as can be seen from its terms set forth above. A child now qualifies for benefits if he or she meets any of the following: (1) is under 18 years of age; (2) is under 25 years of age and is a full-time student at any accredited educational institution; or (3) is physically or mentally handicapped. While the statute, as amended, still retains the language “legally obligated to support,” this is no longer a general requirement for all children, but serves merely as a catch-all for those not covered by the specific criteria set forth above. As an example, it will cover illegitimates. Jones v. Industrial Com. (1976), 64 Ill. 2d 221, 356 N.E.2d 1.

Legal obligation to support is no longer a statutory requirement for benefits under this section. The Commission and the circuit court therefore correctly concluded that claimant’s marriage was not a basis for terminating benefits.

Respondent’s second issue concerns the interruption of education. It will be recalled that Janice completed her undergraduate work and then began teaching. Two years later she again enrolled in college in order to comply with Colorado requirements. Respondent argues that the claimant’s status was fixed on the date of her father’s death and, apart from the question of marriage, was terminated when she left school to teach; and further, that she should not be permitted to reenter that status at her personal convenience.

While the argument has some appeal, a liberal reading of the statute compels us to reject it. The statute makes no exceptions to the 25-year-age rule and does not expressly terminate benefits in the event of a break in the educational continuum. We cannot speculate on the intent of the legislature in so framing the law, but undoubtedly an unqualified eligibility until age 25 avoids a host of problems. While the claimant here acted volitionally, problems could arise with breaks in the education process due to extended illness, to pregnancy, to the need to earn money to continue schooling, to disciplinary suspensions by the school; the list is circumscribed only by one’s imagination. Each one would require the Commission and the courts to do too much soul-searching and legal juggling to reject unworthy pleas and to allow the opposite. The statute would then become so barnacled with exceptions as to be meaningless.

Accordingly, the judgment of the circuit court of McLean County affirming the Commission is affirmed.

Affirmed.

SEIDENFELD, P.J., McNAMARA, BARRY, and KASSERMAN, JJ., concur.


text:
    YELLOW FREIGHT SYSTEMS, Petitioner-Appellant, v. THE INDUSTRIAL COMMISSION et al. (Lurton H. Pepper, Respondent-Appellee).
    Second District (Industrial Commission Division)
    No. 2—84—0122WC
    Opinion filed June 13, 1984.
    Richard C. Hayden and Rochelle A. Funderburg, both of Craig & Craig, of Mattoon, for appellant.
    Gerald F. Tuite and Jason Gesmer, both of Tuite, Morrissey, Gesmer & Finnegan, of Rockford, for appellee.
   JUSTICE WEBBER

delivered the opinion of the court:

Claimant, Lurton Pepper, filed an application for adjustment of a claim seeking workers’ compensation benefits against his employer, Yellow Freight Systems, Inc. (Yellow). An arbitrator found Pepper to be totally and permanently disabled and awarded him $304.21 per week for life, together with $220 for necessary medical expenses. On review before the Industrial Commission, the decision of the arbitrator was affirmed and the Commission added $5,942.22 for necessary medical expenses. On further review the circuit court of Ogle County confirmed the Commission and this appeal followed.

Pepper was a truck driver for Yellow. On August 5, 1977, he made a run from Palatine to Effingham, starting about 3 a.m. After about 30 minutes in Effingham, he started back for Palatine about 9 a.m. Early in the return trip he experienced difficulty with his rig and stopped at the roadside to crank a dolly pad up since it was too near the pavement and was scraping. The dolly was covered with dirt and grime and it required considerable physical exertion to do the cranking. Upon resuming driving Pepper experienced chest pain which spread to his left arm, and he began to perspire. He again pulled off the road and another Yellow driver who was proceeding behind him also stopped to see what was wrong. They then went on to a truck stop, where Pepper obtained some across-the-counter medication for indigestion and then continued the run to Palatine. There was another stop for additional patent medicine, and Pepper was able to complete the run, although experiencing varying degrees of pain and discomfort throughout.

Upon arriving at Yellow’s terminal in Palatine, Pepper, according to his testimony before the arbitrator, informed the operations manager, Sutton, of his pain and illness. This was corroborated by the other driver accompanying him. On the next day, August 6, Pepper again experienced pain and called Yellow by telephone to say that he was unable to work. He then went to the Rochelle Community Hospital, where his family physician admitted him into the intensive care unit. Initial hospital tests were inconclusive, but angina or myocardial infarction were suspected. He was released from the hospital on August 13, 1977, and remained at home with medication and orders to rest. On September 11, 1977, he was admitted to St. Anthony’s Hospital in Rockford under the care of a cardiologist, where a coronary angiogram was performed. This test showed an occluded right coronary artery and a hypokinetic inferior wall, suggesting that Pepper had suffered a heart attack.

At arbitration Pepper testified that either from the Rochelle hospital or immediately upon his release he phoned Sutton to inform him that “they found out it was my heart.” He also testified that he phoned the same information to the night operations manager of Yellow, Cirone by name. Pepper’s wife testified that she, too, had phoned Cirone to tell him that her husband had suffered a heart attack.

At the hearing on review before the Industrial Commission, both Sutton and Cirone denied receiving any such phone calls. However, Sutton stated that he knew, although he was not sure how, Pepper had suffered a heart attack. This knowledge came to him approximately one week after August 5.

Between the time of hearing on arbitration in July 1981 and the hearing on review in October 1981, Pepper underwent coronary bypass surgery. The medical bills for this were introduced at a further review hearing in April 1982.

On appeal in this court Yellow has raised two issues: (1) whether proper notice was given to it within the statutory 45-day period, and (2) whether the Commission’s determination that Pepper is permanently and totally disabled is against the manifest weight of the evidence.

As to notice: section 6(c) of the Workers’ Compensation Act (Ill. Rev. Stat. 1981, ch. 48, par. 138.6(c)) provides in pertinent part:

“(c) Notice of the accident shall be given to the employer as soon as practicable, but not later than 45 days after the accident. ***
* * *
No defect or inaccuracy of such notice shall be a bar to the maintenance of proceedings on arbitration or otherwise by the employee unless the employer proves that he is unduly prejudiced in such proceedings by such defect or inaccuracy.
Notice of the accident shall give the approximate date and place of the accident, if known, and may be given orally or in writing.”

Compliance with this section is accomplished by placing the employer in possession of the known facts within the statutory period. (Seiber v. Industrial Com. (1980), 82 Ill. 2d 87, 411 N.E.2d 249.) Notice to management-level employees will suffice. Atlantic & Pacific Tea Co. v. Industrial Com. (1977), 67 Ill. 2d 137, 364 N.E.2d 83.

Pepper’s testimony is that he informed Sutton, apparently a management employee, of his illness directly upon his return to Palatine. This was corroborated by his fellow driver. He also testified that he telephoned Cirone either from the hospital or upon his release August 13, well within the 45-day limit. Pepper’s wife stated that she also communicated with Cirone on the subject from the hospital. Both Sutton and Cirone denied receiving these communications, but in contradiction, Sutton stated that he knew of Pepper’s heart attack approximately one week after it occurred. This indicates actual knowledge, regardless of the source. Actual knowledge constitutes notice to the employer to the extent of that knowledge. Heyworth v. Industrial Com. (1926), 321 Ill. 298, 151 N.E. 920.

Furthermore, the Commission heard both Sutton and Cirone at the hearing on review. It is its particular function to judge the credibility of witnesses and to weigh the evidence. (Moore Electric Co. v. Industrial Com. (1980), 83 Ill. 2d 43, 413 N.E.2d 1262.) In the instant case it is apparent that the Commission elected to believe Pepper, and we cannot say that such a result is contrary to the manifest weight of the evidence. Yellow did receive proper notice within the statutory period.

As to the disability issue, we find that Yellow has waived the matter. The Commission’s order states, “The issues on Review are whether Petitioner gave Respondent notice within the requirements of section 6(c) of the Act, and the amount of necessary medical expenses.” The record shows that only four witnesses appeared before the Commission on review; Sutton, Cirone, Mrs. Pepper and Pepper himself; the first three testified only on the matter of notice. Pepper testified as to his treatment at St. Anthony’s Hospital and his medical records from there (and Swedish-American Hospital where the angiogram was actually performed) were admitted. The medical bills for the coronary bypass operation were later admitted by agreement.

It is thus apparent that the matter of total and permanent disability was never raised before the Commission. In her opening statement before the circuit court, counsel for Yellow stated in part, “The issues on review are, whether Mr. Pepper gave Yellow Freight notice of an accident, and the amount of necessary medical expenses. *** The issue here today is whether Mr. Pepper gave notice within the requirements of Section 6 — C of the Workman’s [sic] Compensation Act.”

The circuit court appears to have raised the issue of total and permanent disability sua sponte. At the conclusion of the argument before it, the following colloquy appears after a discussion regarding the medical bills for the bypass operation:

“THE COURT: Dr. Dougherty’s letter of 9/12/78 indicates that he could return to work, but he can’t pass the physical from the D.O.T. Does that mean he’s permanently disabled?
MR. GESMER [Yellow’s counsel]: Not just because of that, because the doctor’s opinion currently, at the time of this trial, was that he was not able to work in any capacity. They are just holding him a total disability because he couldn’t pass the D.O.T. The Commission has the ability to determine if he can do any work, not necessarily the job he was doing when he had the accident.
THE COURT: I’d have to say Dr. Warmoltz from Warmoltz Clinic in Oregon, Illinois, whose [sic] had four heart attacks and has angina sometimes, he goes water skiing and he chops wood every day and he says the heart is a muscle and you got to make it work.
MR. GESMER: Well, I can’t comment on Dr. Warmoltz.
THE COURT: He should be very proud at 83 to be doing these — he had his first heart attack in 1942 and he was affiliated with Rockford Memorial Hospital and the Catherine Shaw Bethea Hospital in Dixon, performed surgery until 1978.
MR. GESMER: That’s very good.
THE COURT: If we could send some of those people who think they have a problem to eat less and exercise more and

Later on, the court sent a letter to counsel which states in part:

“It’s my opinion that there is a factual matter which should be determined by this court which may or may not have been determined by this court which may or may not have been determined by the Industrial Commission; That question is whether or not the fact that the doctors say that the employee was suffering from angina pectoris was or was not directly caused by his employment.”

Still later, the court held a conference telephone call with counsel. It was transcribed and the following appears:

“THE COURT: Well, let me look at my letter.
MR. GESMER: Dated June 30th.
THE COURT: I think what I really want you to talk about is whether the nature of this illness is really related to his occupation or whether or not it was an oncoming thing because of the fact that he was getting older. In other words, is there any correlation between his angina and his occupation, whether or not the Commission took that into account when they made their ruling.”

The trial court far overstepped its bounds in raising a question which was not before the Commission. “On certiorari the circuit court considers a case only on the record made before the Industrial Commission and has no authority to consider evidence not presented therein.” Gunthrop-Warren Printing Co. v. Industrial Com. (1979), 74 Ill. 2d 252, 255, 384 N.E.2d 1318, 1319.

The question of permanent and total disability was not properly before the circuit court, and it is not before this court. Yellow waived the matter by not presenting it to the Commission. The trial court was correct, albeit for the wrong reason.

The decision and judgment of the circuit court of Ogle County affirming the order of the Industrial Commission is affirmed.

Affirmed.

SEIDENFELD, P.J., McNAMARA, BARRY, and KASSERMAN, JJ., concur.


author: JUSTICE GREEN

text:
      In re MARRIAGE OF LISA L. SPANGLER, Petitioner-Appellant, and KIM A. SPANGLER, Respondent-Appellee.
    Fourth District
    Nos. 4—83—0507, 4—83—0717 cons.
    Opinion filed May 30, 1984.

      Mark A. Schuering, of Goehl & Schuering, of Quincy, for appellant.
    Leahy and Leahy, of Springfield (Mary Lee Leahy, Andrew J. Leahy, and Cheryl Redfield Jansen, of counsel), for appellee.
   JUSTICE GREEN

delivered the opinion of the court:

These consolidated appeals arise from a dissolution of marriage proceeding in the circuit court of Adams County between petitioner, Lisa L. Spangler, and respondent, Kim A. Spangler. In case No. 4— 83-0507, petitioner appeals from that portion of an order entered by that court on April 7, 1983, awarding custody of the parties’ children to respondent. Subsequent to petitioner’s timely filing of notice of appeal from that order, petitioner filed a petition under section 610 of the Illinois Marriage and Dissolution of Marriage Act (IMDMA) (Ill. Rev. Stat. 1983, ch. 40, par. 610) on August 31, 1983, seeking modification of the custody order. On September 21, 1983, the trial court dismissed that petition for want of jurisdiction. The appeal in case No. 4 — 83—0717 is by petitioner and from that order. We affirm the April 7, 1983, order and reverse the order of dismissal entered on September 21,1983.

The order dismissing the petition to modify presents a unique question upon which no direct authority has been presented or discovered. Accordingly, we consider that question first.

The petition to modify was filed after the notice of appeal from the order of custody had been filed and while that appeal was pending. One of the reasons that the trial court held that it had no jurisdiction was the familiar, general rule that a trial court has no jurisdiction to change the substance of an order during the pendency of an appeal from that order. (In re Marriage of Legge (1982), 111 Ill. App. 3d 198, 443 N.E.2d 1089.) On the surface, it appears that the instant petition to modify seeks the very relief which the foregoing rule holds to be beyond the power of the court to grant. However, a close analysis of the nature of the procedure to modify custody pursuant to section 610 of the IMDMA persuades us to the contrary.

Section 610 states in part:

“Modification, (a) Unless by stipulation of the parties, no motion to modify a custody judgment may be made earlier than 2 years after its date, unless the court permits it to be made on the basis of affidavits that there is reason to believe the child’s present environment may endanger seriously his physical, mental, moral or emotional health.
(b) After the expiration of the 2 year period following a custody judgment specified in subsection (a) of this Section, the court shall not modify a prior custody judgment unless it finds by clear and convincing evidence, upon the basis of facts that have arisen since the prior judgment or that were unknown to the court at the time of entry of the prior judgment, that a change has occurred in the circumstances of the child or his custodian, or in the case of a joint custody arrangement that a change has occurred in the circumstances of the child or either or both parties having custody, and that the modification is necessary to serve the best interest of the child.” (Emphasis added.) Ill. Rev. Stat. 1983, ch. 40, par. 610.

A grant of section 610 relief by a trial court during the pendency of an appeal from a prior custody order differs in a significant aspect from other situations where a trial court is requested to “modify” a prior order pending its appeal. Section 610 retains the common law rule enunciated in Nye v. Nye (1952), 411 Ill. 408, 105 N.E.2d 300, that a final custody order is res judicata as to facts presented to the court at the time of the entry of that order. (See Ill. Ann. Stat., ch. 40, par. 610, Historical & Practice Notes, at 93 (Smith-Hurd 1980).) Thus, the original custody order stands as the judgment of the court as to the circumstances before the court at the time of entry and that judgment is not changed by a grant of relief under section 610. Although the granting of such relief is said to “modify” the judgment of custody, actually, a new judgment is entered based on new facts and circumstances. As the procedure requires the giving of res judicata effect to the original custody determination, the new custody judgment is one that could be entered even if the original custody judgment is affirmed.

Our conclusion that the trial court had jurisdiction to enter the order of modification here is consistent with that of the Second District in the case of In re Marriage of Petramale (1981), 102 Ill. App. 3d 1049, 430 N.E.2d 569. That court held a trial court to have jurisdiction to hear a petition to modify an award of child support filed pursuant to section 510 of the IMDMA while appeal from the original order of support was pending. That court made a somewhat different analysis than ours, basing its decision on the rule that support orders are always subject to modification and that the court has jurisdiction to modify such orders without reserving jurisdiction. The court also noted that “the duration of the appellate process requires that petitioners have a forum available at all times in which support matters may be determined.” 102 Ill. App. 3d 1049, 1053, 430 N.E.2d 569, 573.

In order to obtain relief under either section 510 or section 610, a petitioner must show a change in circumstances from the situation which existed at the time the original order was entered. In both cases, relief may be necessary while an appeal is pending. The appellate court cannot grant such relief because its only power to change the effect of the judgment on appeal is that to stay the enforcement of the judgment. (87 Ill. 2d R. 305.) Suggestion has been made that proceedings to change custody pending appeal from a custody order might be had in a dire emergency under the provisions of the Juvenile Court Act. (Ill. Rev. Stat. 1981, ch. 37, par. 701 — 1 et seq.) Such a procedure would be most cumbersome. It is questionable if the Juvenile Court Act would cover all instances where modification of custody is highly desirable.

If the trial court hears the section 610 petition while the original order is on appeal and denies relief, the appeal would not suffer interference. If the trial court granted relief, the original appeal may become moot. The Petramale court recognized this, but was not deterred from upholding the trial court’s jurisdiction. We agree. The mooting of the question on appeal is not an interference with the appeal as would be the case if the record upon which the appeal is based was changed by the trial court after a notice of appeal was filed. The cause of justice is usually served rather than obstructed when a dispute is mooted. Because of the res judicata effect that the trial court must give to the original order on appeal, the authority of the reviewing court to pass on the propriety of the original order, if necessary, is not infringed upon by the trial court.

In taking the position that the trial court lacked jurisdiction to hear the petition, both the trial court and respondent have relied upon the theory that the intent of section 610 of the IMDMA, which is to encourage stability and continuity as to child custody, would be defeated if a trial court could do so. However, the provisions of the IMDMA encourage stability and continuity regardless of whether the petition is heard pending appeal or otherwise. Not only is a change in circumstance required for any relief under section 610, but where, as here and typically when the original order is on appeal, less than two years have elapsed since the prior order, the petitioner must support the petition with affidavits showing that there is reason to believe the child’s present environment may “endanger seriously his physical, mental, moral or emotional health.” When the stringent requirements of section 610 are met, relief may be necessary, regardless of whether the original order is on appeal.

In reversing the order dismissing the section 610 petition we are holding that the pendency of the appeal from the original custody order did not deprive the court of jurisdiction to hear the petition to modify. We are not passing on any other aspect of that request for relief.

We now address the issue raised by petitioner in case No. 4 — 83— 0507. Petitioner maintains on appeal that the trial court’s order entered on April 7, 1983, awarding permanent custody of the parties’ two minor daughters to respondent was contrary to the manifest weight of the evidence.

The parties agree that (1) a trial court’s decision awarding custody will not be disturbed on appeal unless it is contrary to the manifest weight of the evidence or unless it appears that manifest injustice has been done, and (2) the presumption favoring the result reached by a trial court is strong and compelling in custody cases because the trial court, rather than the reviewing court, is in a better position to evaluate the credibility of the witnesses and the needs of the children. In re Custody of Switalla (1980), 87 Ill. App. 3d 168, 408 N.E.2d 1139.

The record in this case contains the following background information. The parties were married on January 16, 1976, and had two daughters: Jamie, born on June 29, 1976; and Brooke, born on December 13, 1980. In June 1977, the parties moved into a duplex house in Quincy. The living quarters of the duplex consist of a living room, dining room, kitchen, half bathroom and back porch downstairs, and a full bathroom and two bedrooms upstairs.

Respondent worked full-time from 1977 until March 13, 1982, when he was laid off work subject to recall and began drawing unemployment compensation benefits. Petitioner held a variety of jobs during the marriage. The children were placed in day care facilities while petitioner was working and also during certain times when she was not working.

After the trial court entered an order on February 11, 1982, which gave exclusive possession of the marital residence to petitioner, respondent moved to an upstairs apartment which consisted of a living room, dining room, two bedrooms, and a large kitchen with a snack bar.

In mid-August 1982, petitioner left the children with respondent for four days while she was in the hospital. On August 19, 1982, when petitioner returned from the hospital to the marital residence, respondent was moving some furniture and the children’s clothes out of that residence. After a confrontation between the parties, respondent left the premises with the children.

Respondent subsequently enrolled Jamie in the first grade at Adams School in Quincy and continued to care for both children at his apartment. On August 27, petitioner went to the Adams School, removed Jamie from class, and took her to live with petitioner in Iowa. Petitioner admitted during cross-examination that (1) she did not get court permission to take the child to Iowa, (2) even though she saw respondent at the school when she removed Jamie from class, she did not tell respondent she was going to take the child out of school, and (3) she did not tell the school personnel that she was taking Jamie to Iowa.

From August 27, 1982, until the October 7, 1982, temporary custody hearing, petitioner and Jamie lived at a friend’s home in Iowa while Brooke continued to live with respondent in Quincy. Following the temporary custody hearing, the trial court entered an order awarding custody of both children to respondent and granting visitation rights to petitioner.

At the conclusion of the hearings on the issue of permanent child custody, the trial court, noting that the evidence indicated that both parties were fit parents, awarded custody of the children to respondent. After carefully considering the record, we conclude that the trial court’s decision was not contrary to the manifest weight of the evidence.

We note that although each party called several witnesses who testified favorably as to the parties’ parental skills, no witness testified that respondent was incapable of caring for the children or supplying their physical and emotional needs. The evidence also indicates that respondent has properly cared for the children since obtaining temporary custody of them in October 1982. Specifically, the testimony adduced at the hearings demonstrated that respondent has cooked well-balanced meals for the children, kept them clean, dressed them well, disciplined them properly, and kept their apartment clean.

We recognize that Kathy Entrap, called by petitioner to testify as an expert witness on emotional child abuse, stated that certain of respondent’s conduct constituted “poor” or “not so good” parenting. However, Ms. Entrap testified that such conduct would have to be consistent in order to constitute emotional child abuse. The record in this case contains no evidence of such a consistent course of conduct.

In addition, Dr. Frank Froman, a clinical child psychologist, called to testify by respondent, testified that respondent’s parenting skills were “okay,” but that respondent had certain things to learn about parenting as do most young parents. However, after interviewing the children, Dr. Froman testified that (1) they appeared warm, friendly, and relaxed, and (2) he found no evidence of emotional child abuse.

Finally, we note that Norma Barnwell, Jamie’s first-grade teacher, testified that (1) Jamie came to school appropriately dressed, clean, and well-groomed, and (2) respondent had visited the school and discussed Jamie’s progress with her on various occasions. Moreover, Ms. Barnwell stated that although Jamie had behavioral problems and poor study habits early in the 1982 school year when she returned from Iowa, these problems had improved substantially since Jamie began living with respondent. Specifically, Ms. Barnwell testified that at the time of the child custody hearings Jamie had more friends, and was more disciplined and organized in her work.

The foregoing evidence indicates that the trial court’s award of custody to respondent did not constitute a manifest injustice, nor was the custody order against the manifest weight of the evidence.

For the reasons stated herein, we reverse the trial court’s order entered in case No. 4 — 83—0717 which dismissed the petition for modification of custody for want of jurisdiction and remand the cause for further proceedings; we affirm the trial court’s order entered in case No. 4— 83 — 0507 which awarded custody of the parties’ children to respondent.

Reversed and remanded in case No. 4 — 83—0717, affirmed as to case No. 4-83-0507.

MILLS, RJ., and MILLER, J., concur.


author: JUSTICE SCOTT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. ROBERT D. LONG, Defendant-Appellee.
    Third District
    No. 3—83—0690
    Opinion filed June 14, 1984.

      John A. Barra, State’s Attorney, of Peoria (John X. Breslin and Gerry R. Arnold, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
    Joseph M. Gibson, of Peoria, for appellee.
   JUSTICE SCOTT

delivered the opinion of the court:

On the evening of May 20, 1983, the defendant was driving on Illinois Route 116 in Peoria County. As he approached to within 100 yards of a police checkpoint he pulled off the road and parked on the shoulder. A State police officer approached the defendant’s car and after observing the defendant asked him to perform several field sobriety tests. The defendant was then arrested for driving under the influence of intoxicating liquor. The trial court granted the defendant’s motion to quash his arrest and to suppress the evidence seized as a result of the arrest. The State certified that the suppression order substantially impairs its ability to prosecute the defendant, and timely filed a notice of appeal. We reverse and remand.

On October 18, 1983, the trial court conducted a hearing on the defendant’s motion to quash his arrest and to suppress the evidence seized as a result of the arrest. The court heard testimony by the arresting officer, the defendant, and a passenger in the defendant’s car on the night of the defendant’s arrest.

Mark Bramlet, an Illinois State police officer, testified as follows. On the night of May 20, 1983, a stationary driver’s license checkpoint was set up on Illinois Route 116, one-half mile west of Airport Road in Peoria County, for the purpose of checking driver’s licenses. The area at which the checkpoint was located on Route 116 was in a valley. At the checkpoint five State police vehicles were parked on the shoulder of the road and three or four more were in a nearby parking lot. While the headlights of the police cars were not on, the flashing red lights on several of the cars were on and emergency yellow lights may have been on some of the cars. None of the police cars were on or blocking the road, and there were no barricades or flares.

The officers stopped all vehicles traveling on Route 116. Officer Bramlet observed the defendant's car, a 1968 Corvette, approach within approximately 100 yards of the checkpoint. At the time, the officers were standing near their cars waiting for the defendant’s car to reach the checkpoint. The officer gave conflicting testimony as to whether the defendant slowed down or actually stopped on the road itself before pulling off onto the shoulder. However, the defendant was not stopped by the police.

Bramlet approached the defendant’s car and initially asked “if there was a problem.” He then inquired whether the defendant was sick and asked the defendant why he pulled off the road onto the shoulder. The defendant answered that he thought there might have been an accident. Bramlet advised him that the police were conducting a driver’s license check and that he would like to see the defendant’s driver’s license. The officer testified that he asked the defendant to proceed to the checkpoint. However, it is unclear from the record at what point in the above sequence of events the officer made this request.

As the officer was speaking with the defendant, he detected an odor of liquor on the defendant’s breath. He also noticed that the defendant’s speech was “somewhat slurred” and that the defendant had difficulty in producing his license. .The officer then asked the defendant to perform several field sobriety tests. There is also conflicting testimony as to the number of tests that the defendant actually agreed to perform and the exact results of those tests. The defendant was, however, arrested for driving under the influence of intoxicating liquor. (Ill. Rev. Stat., 1982 Supp., ch. 951/2, par. 11— 501(1).) He was taken to a State police mobile communications van located at the license checkpoint, where he refused to submit to a breath analysis.

Bramlet admitted that he had no warrant for the defendant’s arrest and that he had not observed the defendant commit any traffic offense other than coming to a stop on the road. The defendant did not obstruct any traffic at the time he stopped and no vehicles approached the defendant’s car from behind.

The defendant testified that to his knowledge no warrant was outstanding for his arrest on the night of May 20, 1983, and he had not committed any criminal offense. He testified that he was not stopped by the police. Rather, he stopped because he thought there had been an accident ahead of him.

Linda Smith, a friend of the defendant’s who was in his car on the night of May 20, 1983, testified as follows. As they approached the checkpoint they could see police car lights and the defendant com-merited that there must be an accident ahead. They hesitated and then pulled off the road some distance from the police cars. A police officer walked up to the car and asked to see the defendant’s driver’s license. The defendant had trouble getting his license because his pocket was tight. The officer asked the defendant to perform several sobriety tests.

After argument by counsel, the trial court ruled that the detention, arrest, and evidence were without probable cause and granted the defendant’s motion to quash his arrest and to suppress the evidence seized as a result of the arrest.

On appeal, the State suggests three grounds in support of its contention that the trial court erred in quashing the defendant’s arrest and suppressing the evidence seized. First, the State argues that the defendant halted his progress as a result of the license checkpoint and was sufficiently within the territory surrounding the checkpoint to be subject to the officer’s request that he produce his driver’s license. Secondly, the State argues that because the defendant stopped his car prior to reaching the checkpoint, the officers could reasonably assume that the defendant was attempting to avoid the checkpoint and could properly request that he display his license as part of the license check. Thirdly, the State argues that since the defendant stopped his car and pulled onto the shoulder of the road, the arresting officer had a duty to approach and determine whether the defendant required assistance.

We must determine on appeal whether the trial court erred in quashing the defendant’s arrest for driving under the influence of intoxicating liquor and suppressing the evidence seized where the defendant stopped and parked his car on the shoulder of the road within approximately 100 yards of a stationary driver’s license checkpoint.

The United States Supreme Court noted in Delaware v. Prouse (1979), 440 U.S. 648, 59 L. Ed. 2d 660, 99 S. Ct. 1391, that when a police officer stops a car and detains its occupants, a “seizure” within the meaning of the fourth and fourteenth amendments has occurred, even though the detention was for a limited purpose and was brief. Whether a particular police practice is permissible is to be judged by a standard of reasonableness whereby the intrusion on an individual’s fourth amendment interests caused by the police practice is balanced against its promotion of legitimate governmental interests. (440 U.S. 648, 654, 59 L. Ed. 2d 660, 667-68, 99 S. Ct. 1391, 1396.) The court expressly stated that States are not precluded from developing spot checks that involve only a limited amount of intrusion or do not involve an unconstrained exercise of discretion. It indicated that one alternative would be to question all oncoming traffic at roadblock-type stops. 440 U.S. 648, 663, 59 L. Ed. 2d 660, 673-74, 99 S. Ct. 1391, 1401.

The checkpoint in the case at bar did not involve an unconstrained exercise of discretion by the police officers. Rather, as suggested in Prouse, all cars, traveling either east or west, were stopped for the purpose of checking driver’s licenses. Judged by the standard of reasonableness set forth in Prouse the legitimate governmental interest promoted by the checkpoint — ensuring that only those qualified to do so are permitted to drive cars — outweighed the defendant’s fourth amendment interests. Therefore, the stationary driver’s license checkpoint was proper.

We also hold that the defendant was sufficiently close to the area in which the check was being conducted to be subject to the officer’s request that he produce his driver’s license. A checkpoint encompasses not only the immediate area at which vehicles stop in response to requests by the police, but also the area within a reasonable distance from the checkpoint. A motorist may not avoid having his driver’s license checked by attempting to evade a stationary checkpoint. (See Morgan v. Town of Heidelberg (1963), 246 Miss. 481, 150 So. 2d 512.) We believe that the determination of what is a “reasonable distance” from a checkpoint must be judged objectively based on the facts in each case. Here, the fact that the defendant stopped within 100 yards of where the police were located, close enough that Officer Bramlet walked over to the defendant’s car, indicates that the defendant stopped within the area encompassed by the checkpoint.

We have determined that the stationary checkpoint set up on Route 116 was proper and that, since the defendant stopped at a point encompassed by the checkpoint, he could be requested to produce his driver’s license. Next, we consider whether Officer Bramlet properly asked the defendant to step out of his car to perform sobriety tests.

In Pennsylvania v. Mimms (1977), 434 U.S. 106, 54 L. Ed. 2d 331, 98 S. Ct. 330, the United States Supreme Court held that a police officer’s request that the defendant get out of his car, issued after the defendant was lawfully detained, was reasonable and thus permissible under the fourth amendment. The Supreme Court stated that the inconvenience to the defendant as a result of the order could not prevail when balanced against the State’s legitimate concern for the officer’s safety.

In the present case, the defendant was not stopped by the police. Rather, he made the decision to stop on the shoulder of the road. As stated above, since the checkpoint was proper, the defendant was lawfully detained when the officer requested that the defendant produce his driver’s license. Officer Bramlet testified that while he was speaking with the defendant he detected an odor of liquor on the defendant’s breath and noticed that his speech was slurred. The officer also indicated that the defendant had difficulty producing his license. Thus, “specific and articulable facts” existed which, when taken together with the rational inferences from those facts, reasonably warranted the officer’s request that the defendant step out of his car and perform several sobriety tests. Terry v. Ohio (1968), 392 U.S. 1, 21, 20 L. Ed. 2d 889, 905-06, 88 S. Ct. 1868, 1879-80.

Officer Bramlet testified that after the defendant stepped out of the car he failed the finger-to-nose test and refused to attempt to perform several other tests. The defendant was therefore arrested for driving under the influence of intoxicating liquor and was escorted to the police van. At the van the defendant was read a request to submit to a breath analysis and refused to do so.

In South Dakota v. Neville (1983), 459 U.S. 553, 74 L. Ed. 2d 748, 103 S. Ct. 916, the United States Supreme Court held that a State may compel a driver to submit to a breath test since he has no constitutional right to refuse to take the test. Thus, evidence of his conduct in refusing to submit to the test can be properly admitted at trial. Recently, in People v. Rolfingsmeyer (1984), 101 Ill. 2d 137, the Illinois Supreme Court held that Neville is applicable to section 11 — 501.2 of the Illinois Vehicle Code. (Ill. Rev. Stat. 1981, ch. 951/2, par. 11— 501.2.) Section 11 — 501.2(c) provides that an accused’s refusal to submit to a breath test shall be admissible as evidence at his trial. Thus, the court explained, section 11 — 501.2 does not offend either the United States Constitution or article I, section 10, of the Constitution of Illinois. We note that under Rolfingsmeyer, the defendant’s refusal-in the instant case to submit to a breath analysis may be admissible at trial.

For the foregoing reasons, the order of the circuit court of Peoria County is reversed.

Reversed and remanded.

BARRY and HEIPLE, JJ., concur.


author: JUSTICE HEIPLE

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. KATHLEEN A. GROSS, Defendant-Appellee.
    Third District
    No. 3—83—0669
    Opinion filed June 14, 1984.
    Edward F. Petka, State’s Attorney, of Joliet (John X. Breslin and John M. Wood, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
    Robert Agostinelli and Thomas A. Lilien, both of State Appellate Defender’s Office, of Ottawa, for appellee.
   JUSTICE HEIPLE

delivered the opinion of the court:

The defendant was charged with possession of cocaine and filed a pretrial motion to suppress the evidence seized. The trial court granted the motion and the State appeals.

On July 23, 1982, the police obtained a warrant to search the premises and person of Tom Sawyer for contraband. The warrant was executed later that evening. The defendant was present at Sawyer’s apartment along with four other individuals. The nonresidents were detained and frisked before being permitted to leave. The police searched the defendant’s purse which was lying near her on a table and found some green leafy plant material and a substance later identified as cocaine. The trial court granted the defendant’s motion to suppress because there had been no articulation of an individualized suspicion against the defendant that she was either armed or concealing contraband. We affirm.

The trial court’s decision on a motion to suppress will not be overturned unless it is manifestly erroneous. (People v. Fuentes (1980), 91 Ill. App. 3d 71.) The search of the defendant’s purse was warrantless. Therefore, the burden was on the State to establish an exception to the warrant requirement. People v. Rinaldo (1980), 80 Ill. App. 3d 433.

The State argues that there are two exceptions to the warrant requirement which justify the search of the defendant’s purse: (1) the search was permissible under section 108 — 9 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 108 — 9) and, (2) the search was permissible as a weapons frisk. The State also contends that the defendant’s purse was within the scope of the search warrant.

Section 108 — 9 reads as follows:

“In the execution of the warrant the person executing the same may reasonably detain to search any person in the place at the time:
(a) To protect himself from attack, or
(b) To prevent the disposal or concealment of any instruments, articles or things particularly described in the warrant.” (Ill. Rev. Stat. 1981, ch. 38, par. 108 — 9).

The defendant contends that the scope of this provision must be read narrowly in light of Ybarra v. Illinois (1979), 444 U.S. 85, 62 L. Ed. 2d 238, 100 S. Ct. 338.

In Ybarra, the police had obtained a search warrant for a tavern and its bartender. While executing the warrant, police officers frisked each of the customers present at the tavern. A cigarette pack containing other objects was seized from Ybarra and was later found to contain contraband. The Illinois trial and appellate courts upheld the search under section 108 — 9.

The United States Supreme Court held that the search of Ybarra contravened the fourth and fourteenth amendments. The search warrant did not authorize the search of anyone other than the bartender, nor was there any indication that the police had probable cause to believe anyone else at the tavern would be violating the law. The warrant did not refer to the patrons or indicate that any patrons were engaged in drug trafficking. The police had no probable cause to search Ybarra at the time the warrant was executed, since he was simply present at the bar and did not make gestures indicative of criminal conduct or concealment of contraband. The police had probable cause to search the tavern, but Ybarra’s propinquity to someone else independently suspected of criminal activity did not amount to probable cause to search him. (444 U.S. 85, 91, 62 L. Ed. 2d 238, 245, 100 S. Ct. 338, 342.) Each patron of the tavern was protected by the fourth amendment. Absent probable cause particularized with respect to a patron, no patron should have been searched. Open-ended or general warrants which do not specify the places or persons subject to the search are unconstitutional, and the search of Ybarra was equivalent to a search pursuant to a general warrant.

The State of Illinois contended in Ybarra that, due to the need to control drug trafficking and the ease with which evidence of narcotics possession can be passed between persons, the fourth amendment should be construed to permit searches of persons present on “compact” premises where a warrant is being executed, where the police have a “reasonable belief” that the persons are connected with drug trafficking and may be concealing contraband. (444 U.S. 85, 94, 62 L. Ed. 2d 238, 247, 100 S. Ct. 338, 343-44.) The Supreme Court rejected the State’s position in light of United States v. DiRe (1948), 332 U.S. 581, 92 L. Ed. 210, 68 S. Ct. 222. The constitutional standard of probable cause was held to be applicable.

The State contends that since the search in Ybarra was carried out in a tavern, the probable cause requirement should be limited only to searches carried out in public places rather than a private residence as in the case at bar. The State’s rationale for this distinction is that owing to the increased danger to police safety involved in a search of a private residence and the increased likelihood and opportunity for occupants to conceal or carry away contraband, a reasonable suspicion should suffice to permit officers to search persons who are connected to the premises. This was the rationale of pre-Ybarra cases which the State maintains are still good law. (People v. Dukes (1977), 48 Ill. App. 3d 237; People v. Campbell (1979), 67 Ill. App. 3d 748.) The State also cites 2 W. LaFave, Search and Seizure sec. 4.9 at 41 (1984 Supp.).

The public versus private premises issue is one of first impression in Illinois. Other jurisdictions which have dealt with the question have refused to recognize any such distinction. Lippert v. State (Tex. Crim. App. 1984), 664 S.W.2d 712; State v. Weber (1983), 64 Ore. App. 459, 668 P.2d 475.

The thrust of the Supreme Court holding in Ybarra is that the fourth and fourteenth amendments protect the legitimate expectations of privacy of persons, not places. Therefore, a person’s mere presence during the execution of a search warrant naming others does not, without more, give rise to probable cause to search that person. Ybarra does not condition a person’s expectation of privacy on the type of premises being searched and we will not alter that protection. Therefore, we hold that the requirement of probable cause set forth in Ybarra applies to the present case.

We have examined the record and find that it fails to show that the police had probable cause to search the defendant. There is nothing which indicates that the defendant had acted suspiciously, furtively, threateningly or that the officers executing the warrant had any specific reason to believe that the defendant was concealing contraband or a weapon. Based on the record, we conclude that the defendant was searched simply because she was present while the warrant was being executed. This is not permitted. Accordingly, we find that the State has failed to establish an exception to the warrant requirement based on section 108 — 9.

The State next contends that the warrantless search constituted a reasonable frisk for weapons under Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868. Terry sets forth a very narrow exception to the requirement of probable cause which permits an officer to conduct a patdown to find weapons that he reasonably believes or suspects are then in the possession of the person he has accosted. The State argues that the situation which confronted the police who had executed the warrant justified a weapons search of the occupants. The police had either completed or were in the process of executing a search warrant for a private premises in which the defendant was apparently a social guest. These premises had been the suspected site of drug trafficking, and the search to that point had proved that there was an “array of drugs” throughout the house. According to the State, the fact that the police were entering upon private premises, presumably after giving notice of entry, permitted the police to assume that at least some of the people present on the premises had a few crucial seconds to react before the apartment was secured. Thus, the concealment of weapons and/or contraband on one’s person or effects was possible if not probable. When confronting the defendant, the policeman noticed that a purse full of personal effects was within her immediate control. Given the inherently risky and dangerous business of drug trafficking, and the “wilful presence of the defendant on a site that had just proved to be rampant with drugs,” the State argues that the police had an articulable and individualized suspicion that the defendant may well have been harboring weapons and/or contraband in this easily accessible purse. We disagree.

The circumstances described by the State are nothing more than broad generalizations. Just because the police were searching a private residence does not by itself establish that the occupants were concealing weapons and contraband. The record does not reveal any circumstances surrounding the entry which suggest that the occupants had concealed contraband or weapons while the police prepared to enter. Once the police had entered the residence (with no apparent difficulty, delay or resistance), the ratio of officers to occupants was slightly better than 2 to 1.

The fact that drug trafficking is often a risky business does not justify the assumption in all cases that every person present where a drug search is being conducted is inherently dangerous or is harboring weapons and contraband. Beyond these broad assumptions, the record contains nothing which shows that the police had reason to believe that the defendant or anyone else at the premises was armed and dangerous. Therefore, the search cannot be justified based on Terry.

Finally, the State argues that the search of the defendant’s purse was within the scope of the search warrant because the defendant did not assert ownership over the purse and the police reasonably believed that it may have belonged to someone who lived at the premises. The State maintains that by failing to claim the purse as her property, the defendant gave up any reasonable expectation of privacy regarding its contents.

The record of the suppression hearing establishes that the purse was lying on a table right next to the defendant. It is clear from the following excerpt from the record that the officer who conducted the search knew that the purse belonged to the defendant:

“Q. How did you determine it was her purse?
A. I believe I asked her at that time if that was her purse, and then upon opening it I found — I believe I found a picture of her and some other things.”

The State cannot now argue that the police reasonably believed that the purse was a part of the premises described in the search warrant rather than the defendant’s personal property.

For the foregoing reasons, we find that the State has failed to show that the trial court’s order granting the defendant’s motion to suppress was manifestly erroneous. The judgment of the circuit court of Will County is affirmed.

Affirmed.

SCOTT and STOUDER, JJ., concur.