author: JUSTICE MEJDA JUSTICE MEJDA

text:
    ZACK COMPANY et al., Plaintiffs-Appellants, v. WILLIAM E. SIMS et al., Defendants-Appellees.
    First District (5th Division)
    No. 80 — 3266
    Opinion filed July 16, 1982.
    Supplemental opinion filed on denial of rehearing August 20, 1982.

      Donald R. Harris, Joseph G. Bisceglia, and Jon D. Botsford, all of Jenner & Block, of Chicago, for appellants.
    William J. Harte, Ltd., Richard J. Prendergast, Ltd., Joseph N. Cas-ciato, and Karen Hamity, all of Chicago (William J. Harte and Richard J. Prendergast, of counsel), for appellees.
   JUSTICE MEJDA

delivered the opinion of the court:

This is an action by the Zack Company, Christine Zack DeZutel (hereinafter Christine) and Isabell A. Zack (hereinafter Mrs. Zack) against William E. Sims and Terre Haute Industries, Inc. (hereinafter THI), claiming that plaintiffs were entitled under a number of different legal grounds, to recover certain corporate stock and other assets from defendant Sims. The eight-count complaint in chancery was filed on January 30, 1976. An amended complaint was filed on September 26,1978.

The trial commenced on March 5, 1979, and, after a number of adjournments, was concluded on October 2, 1979. The parties filed .written briefs, suggesting appropriate findings, and on July 2, 1980, the trial court heard oral argument. On October 3, 1980, the trial court issued an oral ruling indicating that judgment would be entered for defendants on a number of issues. Then, on December 2, 1980, the trial court entered its findings of fact and conclusions of law, entering judgment in favor of defendants and against plaintiffs on all counts of the amended complaint.

Plaintiffs appeal, contending that: (1) the trial court’s findings are contrary to the overwhelming weight of the evidence, and in some cases contrary to undisputed evidence or based on no evidence at all; (2) the trial court erred in according credibility to certain witnesses; and (3) the trial court erred in limiting discovery, and in admitting and excluding certain evidence at trial.

The parties herein have submitted extensive factual summaries in their respective briefs tracing the history of the Zack Company and the Zack family and the circumstances under which Sims became the owner of the common stock of THI and 44% (186 shares) of the stock of Zack Company. The evidence adduced at trial consisted of testimony of an array of witnesses and substantial documentary evidence. Facts necessary for determination of this appeal are set forth below. Additional facts will be referred to in this opinion only as they are necessary for the determination of particular issues presented.

The Zack Company is an Illinois corporation engaged in sheet metal fabrication and contracting. The company was founded in 1922 by Hans J. Zack, husband of plaintiff Mrs. Zack, and father of plaintiff Christine. Defendant THI is an Indiana corporation also in the business of metal fabrication. Defendant Sims, president of THI, is the former husband of Christine and former son-in-law of Mrs. Zack.

In 1946 Hans set up the “Christine Zack Trust” for his daughter’s benefit, placing in trust 200 of Zack Company’s 500 outstanding shares of stock, other stock and approximately $150,000 in cash, notes and bonds. Under the terms of the Christine Zack Trust, Christine was to receive 25% of the trust corpus at age 21 (1960), another one-third at age 25 (1964), and the balance at age 30 (1969). Christine was also beneficiary of a guardianship account, containing about $85,000, which was distributed to her in 1958 after her 18th birthday.

Hans Zack died in October 1956. After his death Mrs. Zack became president of Zack Company and Charles Howard became general manager. Two additional trusts, a marital trust and a residuary trust, were created by Hans Zack’s will. Mrs. Zack was the trustee and life beneficiary with a power of appointment over the marital trust, and also trustee and life beneficiary of the residuary trust, with Christine the vested remainderman after her death. One hundred eighty-six shares of Zack Company stock were put into the marital trust and 33 shares into the residuary trust. The balance of 200 shares remained in the Christine Zack Trust, of which Mrs. Zack became trustee.

In 1959 Christine married Sims. Immediately after their marriage Sims became an employee of Zack Company, remaining a continuous employee from 1960 until January 1976 when he was terminated. During the first few years of their marriage, Christine and Sims maintained one joint checking account and deposited monies they received from any source into that account. Later Sims opened up a “special” checking account into which he deposited his salary checks, while Christine continued to maintain the joint checking account with her salary from Zack Company. She paid all routine family household expenses out of that account and Sims would contribute when she became low in funds. Sims’ Zack Company compensation increased from $12,600 in 1964 to $70,000 in 1971. Three children were born to the Sims family during their marriage.

THE THI TRANSACTIONS

In 1967 Howard learned of the availability of an old boiler works plant in Terre Haute, Indiana, which he thought could serve as a production facility for Zack Company. Mrs. Zack, however, rejected any such expansion. Sims, on the other hand, became interested in the Terre Haute facility and formulated the idea of making a separate corporation. Sims testified that early in 1967 he asked Mrs. Zack if it would be possible to acquire some equipment from the Zack Detroit operation for the Terre Haute company. He said she indicated that the stockholders were not interested in investing any more money but that “if it was such a great opportunity, why didn’t he do it himself,” and that there were funds available for him to borrow.

After Mrs. Zack gave Howard and Sims approval, the building in Terre Haute was purchased in late 1967. The Zack Company paid the $25,000 earnest money deposit on behalf of the new company. Later, in January 1968, the Hans Zack residuary trust took title to the property, reimbursed the Zack Company for the earnest money deposit, and paid the balance of approximately $155,000 for the property. The residuary trust eventually took back a note from the new company (THI) for the purchase price, at 4% interest.

In early 1968, Howard drafted the details of the proposed incorporation. This document indicated that the “beginning shareholders” were to be “William E. Sims and Christine Zack Sims” with an 80% interest, “Charles L. Howard” with a 10% interest, and “Stephan W. Duncan” with a 10% interest. This document was approved by Howard and Sims, who then presented it to Mrs. Zack, who in turn referred the matter to her attorney, Andrew Gatenbey. Following assurance by either Sims or Howard that the joint ownership arrangement was acceptable to everyone, Gatenbey indicated his approval of the incorporation details by initialing the document. A few weeks later a Terre Haute attorney, Sam Beecher, sent to Howard for final signature typed incorporation papers still showing Christine as an incorpo-rator and shareholder. Howard took no further action with respect to the documents, however, until months later in September 1968.

During the above period, THI went into full operation using various assets and benefits obtained from the Zack Company and other Zack family sources. These assets included the purchase by THI of the Zack Detroit operation, including all work-in-progress, inventory, accounts receivable and the transfer of key personnel. The Zack Company in turn received a note for $198,000 at 4% interest for these items, which was subsequently paid by THI. In addition, other assets were leased from Zack Company for an annual rental, and administration services were provided by Zack Company, for which THI was paid $10,000 per year. The amounts charged for administrative services, leasing of equipment and the sale of work-in-progress by Zack Company to THI, as well as other matters involving Zack Company’s relationship with THI, were determined by Howard, as general manager of Zack Company. Zack family sources, including the residuary trust and the Zack Foundation, also provided long-term loans to THI totaling $678,983, and guaranteed without consideration another $371,000 in bank loans. The Zack Company also guaranteed THI’s credit with its suppliers, and its performance under numerous contracts, and provided other services and intangible benefits to the new company.

In September 1968 Howard and Sims reviewed the incorporation documents which had been forwarded by Beecher, and began to make some necessary revisions, most notably the deletion of Stephan Duncan’s name as 10% shareholder due to Duncan’s withdrawal from the enterprise. At that time Sims told Howard to also eliminate Christine’s name as a subscriber and joint shareholder. Howard had the documents retyped to reflect the changes and mailed them to Beecher with instructions to proceed with the incorporation. Actual THI stock certificates were not prepared by Howard until January 1973. Christine testified that at all times Sims represented to her that THI was a venture for their mutual benefit and not for himself alone, and that she did not learn otherwise until late in 1973 when a divorce was contemplated. .

THE USE OF CHRISTINE’S MONEY TO PURCHASE THE THI STOCK

In 1961 Christine, on Sims’ advice, placed $55,000 which she received from the Christine Zack Trust into joint certificates of deposit at Olympic Savings & Loan. In 1966 she agreed to let Sims close the accounts. Sims testified that he put the money into their joint safety deposit box in 1966. In November 1967 Christine deposited approximately $28,000 she received from the above trust into the joint household checking account. Christine testified that she agreed that this money could be used to invest in THI. Accordingly, Sims wrote a $28,000 check to cash on the account on December 7, 1967, and placed the $28,000 cash into the joint safety deposit box.

Sims testified that after the above $83,000 was put into the safety deposit box, he used $45,000 from the box, in early 1968, to pay THI for 4,500 shares of stock, representing 90% of outstanding THI stock. He also testified that later he took another $50,000 from the safety deposit box, and that he loaned it to THI on June 27, 1968. After these two transactions, according to Sims’ testimony, the cash fund was depleted.

Sims stated that he had at least $45,000 of his own money in the safety deposit box which he used to pay for the stock. The money he used came from his income, company salary and cash gifts made to him by Mrs. Zack during the earlier years of his marriage. He testified that he also made $12,000 on a salvage job in earlier years, although his income tax returns for those years showed no such income. Sims offered no documentary evidence to corroborate his contributions to the joint safety deposit box funds. It is undisputed that the $45,000 used by Sims to purchase the stock came from the cash fund kept in that joint safety deposit box.

In 1972 Sims purchased the 500 THI shares (10%) then held in the name of Howard for $10 per share, for a total of $5,000. Under the agreement Howard received $5,000 cash and was to receive a specified percentage of THI’s earnings each year until he reached age 65. The $5,000 payment was made from Sims’ personal checking account. Pursuant to the agreement Howard received $8,550 in January 1973. This payment was also made from Sims’ checking account. Then, in the spring of 1973, under a verbal agreement to extinguish any future rights, Sims bought out Howard’s interest completely with a lump sum payment of $40,000. This payment was made with proceeds of a check, repaying the original $50,000 loan made to THI on June 27, 1968, with the funds in the joint safety deposit box. Sims cashed the check, totaling $68,825.20 with accrued interest, on May 1, 1973, used $40,000 to pay Howard, and deposited the balance of $28,825.20 into his special checking account. The stock certificates for the 500 THI shares were issued in the name of “William E. Sims.”

THE ZACK COMPANY TRANSACTIONS

The evidence as to events leading up to the sale of 186 shares (44%) of Zack Company stock held by the marital trust to Sims is disputed. According to Sims’ testimony, in the fall of 1971 Mrs. Zack asked him if he was interested in buying the Zack stock for about $1 million. Since Sims was not interested in a minority position in the Zack Company, he agreed to purchase the stock provided that Mrs. Zack would agree to resign as trustee of the residuary trust in favor of Christine. Mrs. Zack agreed to these terms, but at a later meeting at the office of attorney Gatenbey she refused to resign as trustee of the residuary trust. Sims had no desire to proceed with the deal under such circumstances. Howard and Christine testified that following the meeting Sims angrily ordered that his children were not to see Mrs. Zack, their grandmother, any more. Sims denied making such a statement. Christine also testified that on the day following the meeting she voluntarily tendered to Sims an executed power of attorney which she had had prepared earlier in 1971. It was undisputed that from the time of the aborted sale in 1971 until May 1973 the Sims family had virtually no contact with Mrs. Zack. The extent and cause of the estrangement between Mrs. Zack and the Sims family during this time was, however, largely disputed.

On May 29, 1973, Mrs. Zack resurrected her offer regarding the stock sale. Howard prepared an agreement which provided, inter alia, that the marital trust, of which Mrs. Zack was trustee and beneficiary, would receive $800,000 for the 186 shares of Zack stock and another $200,000 already owed to the trust by the Zack Company on a note, for a total price of $1 million. Christine testified that Sims notified her of the offer and that Mrs. Zack saw her grandchildren that very weekend for the first time in two years. The agreement was later modified to include the transfer of Mrs. Zack’s interest in Artie Engineering to Sims. Sims and Howard decided that Sims should offer to pay Mrs. Zack $88,000 for the Artie stock and reduce the price of the Zack stock by the same amount to $712,000.

Under the final terms of the 1973 transaction: (1) Mrs. Zack sold the 186 shares of stock held by the marital trust for $712,000; (2) the Zack Company paid back a $200,000 loan to the marital trust; (3) Mrs. Zack sold her interest in Artie Engineering for $88,000, which Sims immediately sold for the same price to Howard and William Mitchell; and (4) Mrs. Zack resigned as trustee of the residuary trust in favor of Christine, and assigned her life interest in the trust to Christine. The stock certificates were issued in the name of Sims alone. Christine testified that she was aware of this fact but thought that the stock was being purchased for their mutual benefit.

THE USE OF CHRISTINE’S MONEY TO PURCHASE THE 186 SHARES

In order to purchase the 186 shares of 1973, Sims arranged for an $800,000 bank loan. Christine pledged her 200 shares of Zack stock as part of the collateral for this loan. Plaintiffs presented documentary evidence to establish that Sims used $28,825 received as part of the proceeds of the $50,000 loan made to THI from the safety deposit box in 1968, as part of the purchase of the Artie Engineering stock. The Artie stock then was immediately sold to Howard and Mitchell for $88,000 and $84,000 of the sale proceeds was deposited in Sims’ account along with the original $800,000, bringing the account balance to $884,000. Sims then used $712,000 to pay Mrs. Zack for the 186 shares and immediately repaid $150,000 to the bank to reduce the loan balance to $650,000. The interest payments on the loan were made by Sims using various funds, including funds received from Christine.

The bank required that the note evidencing the $650,000 loan balance be renewed every six months. On one occasion in December 1974 Sims simulated Christine’s signature on the renewal note. Prior to this the bank had indicated that his signature on her behalf was unacceptable since the bank had no power of attorney on file relating to Christine. At this time Sims was in possession of the power of attorney Christine had given to him with respect to her 200 shares of Zack Company. Christine testified that had the documents been placed in front of her at the time, she would have signed them herself, and had she known that Sims signed her name, she would not have charged him with forgery.

In January 1975 Sims caused THI to pay back its outstanding loans, paying $65,000 balance on a note it owed to Christine and a $402,500 note it owed to the residuary trust, and other notes owed to Sims. Christine thereupon loaned to Sims, at an interest rate of “zero percent per annum,” the $402,500 from the residuary trust and $65,000 of her own money. The notes were payable within 30 days after the sale of the Zack Company. Sims used the $467,500 received from Christine, together with other funds, to pay the $650,000 balance on the bank loan.

Later, in February 1975, Sims converted to cash the balance of money remaining in his checking account and invested various large sums in certificates of deposit in the' Cayman Islands. The Cayman accounts were opened originally in the joint names of himself and Christine, although her name was deleted in 1975 when the divorce was contemplated. Sims also made other investments in 1975 including loans to personal friends and an investment in the Mitchell Film Company.

In support of Zack Company’s claim for excessive compensation and corporate waste, there was considerable evidence presented relating to Sims’ compensation from both Zack Company and THI, particularly from 1974 through 1975. Plaintiffs also presented evidence regarding Sims’ purchase of two corporate airplanes, one for THI, and another for Zack Company, and further adduced testimony regarding the relative company and noncompany use of these aircraft.

Opinion

I

Plaintiffs first contend that the evidence at trial overwhelmingly supported a finding that Christine was entitled to the THI stock upon the theory of a resulting trust.

A resulting trust is an intent enforcing device (In re Estate of Wilson (1980), 81 Ill. 2d 349, 410 N.E.2d 23), which arises by operation of law and has its roots in the presumed intention of the parties. (Wright v. Wright (1954), 2 Ill. 2d 246, 118 N.E.2d 280.) The trust is founded upon the “natural equity” that one who pays for the property should enjoy it, unless he or she intended by the vesting of title to confer a beneficial interest upon the grantee. (Bowman v. Pettersen (1951), 410 Ill. 519, 102 N.E.2d 787.) The trust usually comes into being when one person furnishes the consideration, or an aliquot part thereof, for the purchase of property while the conveyance is taken in the name of another. Tilley v. Shippee (1958), 12 Ill. 2d 616, 147 N.E.2d 347.

The trust arises at the time the title to the property vests, or it does not arise at all. (First National Bank & Trust Co. v. Illinois National Bank & Trust Co. (1960), 19 Ill. 2d 385, 167 N.E.2d 223.) If the trust does not arise then, it will not be created by the payor’s change of mind at a later date. (Brod v. Brod (1945), 390 Ill. 312, 61 N.E.2d 675.) The parties’ actions subsequent to the vesting of title have little bearing on the issue of trust (Hanley v. Hanley (1958), 14 Ill. 2d 566, 152 N.E.2d 879; Wright v. Wright), except insofar as those actions are probative of the original intent of the parties. (Suwalski v. Suwalski (1968), 40 Ill. 2d 492, 240 N.E.2d 677.) Subsequent declarations or admissions of the parties bear even less evidentiary weight than their actions. Curielli v. Curielli (1943), 383 Ill. 102, 48 N.E.2d 360; Hocking v. Hocking (1979), 76 Ill. App. 3d 29, 394 N.E.2d 653.

The intention of the person paying for the property is the key to the doctrine of resulting trust (In re Estate of Wilson), and such intention must be gathered from the facts and circumstances of each individual case. (Bowman v. Pettersen.) The burden of proof is upon the party seeking to establish a resulting trust and the evidence must be clear, convincing and unmistakable. (Wright v. Wright.) The payment of consideration raises a prima facie presumption of a resulting trust which may be rebutted by proof that an intention that the grantee take a beneficial interest and not merely legal title (In re Estate of Wilson); however, if the transaction is susceptive of any other reasonable interpretation, then no resulting trust will be found. Carlson v. Carlson (1951), 409 Ill. 167, 98 N.E.2d 779.

If the evidence is contradictory, the factual determinations necessary to decide the case are left to the trial court, which has the opportunity to view the witnesses and assess their credibility. The trial court’s determinations will not be reversed unless they are against the manifest weight of the evidence (Hanley v. Hanley (1958), 14 Ill. 2d 566, 152 N.E.2d 879), or unless there is clear and palpable error in some other respect. (Brown v. Commercial National Bank (1969), 42 Ill. 2d 365, 247 N.E.2d 894; Crose v. Crose (1980), 91 Ill. App. 3d 216, 414 N.E.2d 872.) When the testimony at trial is contradictory, a reviewing court will not substitute its judgment as to the credibility of the witnesses or reweigh the evidence. Mortell v. Beckman (1959), 16 Ill. 2d 209,157 N.E.2d 63.

Upon reviewing this record, we are convinced that the trial court’s finding that Christine’s funds were not used to purchase the 4,500 shares of THI stock was contrary to the manifest weight of the evidence. The documentary evidence clearly established that $83,000 of the cash deposited in the joint safety deposit box was contributed by Christine. Sims’ own testimony was that after paying $45,500 for the THI stock and then making a $50,000 loan to THI a few months later, the money in the box was depleted. Although Sims’ testimony established other sources of income which may have been contributed to the cash fund, such sources were totally undocumented, and in the instance of “money earned from salvage operation,” contrary to Sims’ tax return filed for the years in question. The evidence presented required assessment of documentary evidence as well as witness credibility. Although we do not substitute our evaluation of credibility for that of the trial court, we hold that the trial court’s finding on this issue is clearly irreconcilable with the substantial documentation of the transaction presented by plaintiffs. On this record it is in our opinion firmly established that some of Christine’s money had to be used to purchase the 4,500 THI shares. Thus, we must consider whether the evidence sufficiently established the existence of a resulting trust with respect to those shares.

As noted among the foregoing principles, intention is the key to the doctrine of resulting trust. The extent of the resulting trust arising from the presumed intention, however, can in no case be contrary to the actual intention as proved by proper evidence. (Hinshaw v. Russell (1917), 280 Ill. 235, 117 N.E. 406.) Christine contends here that the evidence supports the imposition of a trust on all 4,500 shares of THI stock or, in the alternative, on a percentage of the shares proportionate to the amount of consideration specifically traced to her funds. Plaintiffs, however, also assert that Christine intended to own the stock mutually with her husband. Assuming plaintiffs’ later contention is true, then it may be reasonably interpreted that Christine intended to confer beneficial interest in one-half of the shares in her husband. A resulting trust may exist as to part of the property, or a part of the interest therein, according to the intent existing at the time of the transfer. The resulting trust also may be rebutted as to a part of the interest in the property. (See Cook v. Patrick (1891), 135 Ill. 499, 26 N.E. 658.) We are of the opinion that the theory of resulting trust applies to the 4,500 shares of THI stock representing 90% of the outstanding shares of the company. However, giving effect to the intent of Christine as evidenced by her trial testimony, and inferred from the facts and circumstances existing at the time of the purchase of the stock by Sims, we imply and therefore impose a resulting trust in the 4,500 shares in favor of Christine to the extent of a one-half interest only.

Plaintiffs also contend that the trial court erred in failing to impose a resulting trust on any of the remaining 10% interest in THI conveyed by Howard to Sims. Upon reviewing the record, we cannot say that the trial court’s determination was against the manifest weight of the evidence. While we are aware that the $40,000 payment to Howard completing the transfer of the remaining 500 shares was made with proceeds of a check, repaying the original $50,000 loan made to THI from the funds in the joint safety deposit box, we cannot say that the transaction was not susceptive of any other reasonable interpretation, namely that the money was originally loaned to Sims by Christine. The evidence is contradictory and rests largely on the assessment of the credibility of the witnesses and we will not substitute our judgment for that of the trial court who heard the evidence and observed the witnesses. A loan and a resulting trust are inconsistent. (Fields v. Fields (1953), 415 Ill. 324, 114 N.E.2d 402.) We feel there was sufficient evidence to defeat the implication of a resulting trust with respect to the 500 shares at issue.

II

At this juncture it is necessary to comment on the trial court’s findings with respect to certain loans at issue. In paragraph 17 of the findings of fact, the trial court found that in 1968, $50,000 was borrowed by Sims from Christine on behalf of THI, and that this amount and $18,825.25 in accumulated interest was repaid on or about May 1, 1973. Sims, however, testified that he has not yet repaid this loan to Christine. In paragraph 50 of the findings the trial court found that all loans made by any party to THI or Sims were repaid. Sims, however, testified that a $100,000 loan made to him by Christine in the fall of 1970 was also outstanding. Defendants in their brief in this court and again during oral argument have conceded that the finding in paragraph 50 is in error as to repayment of these two loans. Accordingly, we hold that paragraph 17 should be modified to reflect the fact, that although the $50,000 loan plus $18,825.25 in accumulated interest was repaid to Sims by THI on or about May 1, 1973, neither the principal amount nor the accumulated interest has been repaid to Christine. We hold further that paragraph 50 should be modified to reflect the fact that the $50,000 loan plus $18,825.25 accumulated interest, and the $100,000 loan, have not been repaid by Sims, are yet due and owing to Christine. Furthermore, we hold that the judgment must be accordingly modified to provide for recovery by Christine against Sims for the aggregate sum of $168,825.25.

III

Plaintiffs next challenge the trial court’s finding that no constructive trust should be imposed on the THI stock. A constructive trust is a restitutionary remedy which is imposed when one party holds property which in equity and good conscience should be possessed by another. (Steinmetz v. Kern (1941), 375 Ill. 616, 32 N.E.2d 151; Edwards v. Miller (1978), 61 Ill. App. 3d 1023, 378 N.E.2d 583; In re Estate of Ray (1972), 7 Ill. App. 3d 433, 287 N.E.2d 144.) Constructive trusts have traditionally been divided into two general groups (1) where actual fraud exists, and (2) where there is an abuse of a confidential or fiduciary relationship. (Steinmetz v. Kern; David v. Russo (1980), 91 Ill. App. 3d 1023, 415 N.E.2d 531.) The remedy is not limited to such situations, however, and a constructive trust may be imposed whenever facts are shown in which a person holding property would be unjustly enriched if he were permitted to retain that property. Chicago Park District v. Kenroy, Inc. (1982), 107 Ill. App. 3d 223; In re Estate of Ray.

The plaintiffs argue that the trial court’s finding that there was no actual fraud proved was against the overwhelming weight of the evidence. We note that actual fraud is never presumed and must be proved by clear and convincing evidence. Ray v. Winter (1977), 67 Ill. 2d 296, 367 N.E.2d 678.

The evidence on this point is conflicting. In support of her claim, Christine testified that Sims had always represented to her that THI would be a venture for their mutual benefit. She related that in December 1967 Sims told her that if she gave him $28,000 of her money, he would invest in “their” company. Plaintiffs also offered the testimony of Zack general manager Howard, attorney Gatenbey, Joe Or-dos, a personal friend of Sims, THI general manager Duncan, and Harold Linville, a personal friend of Sims, to corroborate the fact that Sims had made such representations to Christine regarding the ownership of THI.

At trial Sims denied making any such representation to anyone and insisted his position had been consistent since 1968. Sims, however, admitted that he never told Christine that she did not have any ownership interest in THI, or that he had had the stock issued in his own name.

Since the evidence on the question of actual fraud was conflicting, the question was one of fact for the trial court. (Lux v. Lelija (1958), 14 Ill. 2d 540, 152 N.E.2d 853.) The trial court in particular found the testimony of Christine, Howard and Ordos to be not credible nor worthy of belief. The testimony of William Sims, however, was found to be both credible and worthy of belief. The determination of the credibility of the witnesses and the weight to be given their testimony is peculiarly within the province of the trial judge (Glass v. Burkett (1978), 64 Ill. App. 3d 676, 381 N.E.2d 821; In re Estate of Ray (1972), 7 Ill. App. 3d 433, 287 N.E.2d 144), and we will not substitute our judgment on these issues. The trial court was in a much better position to determine the facts than is this court. We are of the opinion that there was sufficient evidence to support the court’s finding that no actual fraud was proved in this case.

We now must consider whether the trial court erred in holding that no fiduciary relationship existed between Sims and Christine at the time the THI stock was acquired by Sims.

Generally, proof of a confidential or fiduciary relationship requires a showing that one person has reposed trust and confidence in another who thereby gains a resulting influence or superiority over the other. (Ray v. Winter.) The marital status alone does not establish a fiduciary relationship (Pollard v. Pollard (1957), 12 Ill. 2d 441, 147 N.E.2d 66), and where a fiduciary relationship does not exist as a matter of law, evidence must be clear and convincing so that it unequivocally and unmistakably provides the base for raising a constructive trust. Ray v. Winter.

The question of whether the evidence in this case establishes clearly and convincingly that Sims occupied a fiduciary relationship to Christine at the time he purchased the THI stock was one of fact for determination by the trial judge who heard the testimony and observed the witnesses. Following long-established principles, this court will not reverse the trial court’s findings unless they are contrary to the manifest weight of the evidence or palpably erroneous.

In support of their position, plaintiffs have cited many instances during the period of their marriage in which Sims executed financial transactions on behalf of himself and Christine. Since the constructive trust is normally proved by establishing facts showing an antecedent relationship which gives rise to the trust and confidence reposed in another (.Ray v. Winter), we believe the evidence regarding events subsequent to the THI transaction is of relatively little importance here. In examining the evidence to determine the extent to which Christine entrusted the handling of her affairs to her husband we find ample support for the trial court’s finding that neither dominated the other, and that Christine did not put full trust and confidence in Sims to manage her assets, but rather discussed financial matters with him regularly and shared financial decision-making with him. Accordingly, we find that the evidence supports the trial court’s finding of no fiduciary relationship with respect to the THI transfer.

IV

Plaintiffs next contend that the trial court erred in failing to find a violation of Illinois and Indiana securities laws in connection with the THI stock transactions. The relevant portion of the Indiana statute provides:

“Prohibited practices with respect to sales and purchases. It is unlawful for any person in connection with the offer, sale or purchase of any security, either directly or indirectly, *** (2) to make any untrue statements of a material fact or to omit to state a material fact necessary in order to make the statements made in light of circumstances under which they are made, not misleading, ***.” (Ind. Code sec. 23-2-1-12 (1972).)

Section 12(G) of the Illinois Securities Law of 1953 similarly provides:

“It shall be a violation of the provisions of this Act for any person:
* * *
G. To obtain money or property through the sale of securities by means of any untrue statement of a material fact or any omission to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading.” Ill. Rev. Stat. 1979, ch. 1211/2, par. 137.12(G).

Under the remedial provisions of these statutes every sale of a security made in violation of the proscriptions of the statutes may be voidable at the election of the purchaser, exercised pursuant to statutory provisions. (Ind. Code sec. 23 — 2—1—19 (1982 Supp.); Ill. Rev. Stat. 1979, ch. 1211/2, par. 137.13; see Kelsey v. Nagy (1980), _ Ind. App. _, 410 N.E.2d 1333; Norville v. Alton Bigtop Restaurant, Inc. (1974), 22 Ill. App. 3d 273, 317 N.E.2d 384.

Plaintiffs contend that Sims clearly failed to state material facts in connection with the purchase or sale of a security, as those terms are defined in both statutes (Ind. Code sec. 23 — 2—1—1 (1982 Supp.); Ill. Rev. Stat. 1979, ch. 121/2, pars. 137.2 — 1 and 137.2 — 5), and therefore that the trial court should have granted a rescission of the THI transactions and other appropriate remedies, including the awarding of attorney fees and costs.

Sims argues, inter alia, that plaintiffs may not invoke the civil remedies of the securities laws with respect to the THI stock transactions because Christine was not a “purchaser” as contemplated by the Indiana and Illinois statutes in question. (Ind. Code sec. 23 — 2—1—19 (1982 Supp.); Ill. Rev. Stat. 1979, ch. 1211/2, par. 137.13.) In essence, Sims challenges Christine’s standing under the State securities laws.

Sims’ contention is based on the rule stated in Gowdy v. Richter (1974), 20 Ill. App. 3d 514, 314 N.E.2d 549. In this case a wife sought to rescind a sale of unregistered securities made in violation of the Securities Act. (Ill. Rev. Stat. 1967, ch. 121/2, pars. 137.13(A) and (B).) The transaction constituting the sale of the securities was conducted at a meeting between her husband and defendant. Following the sale, pursuant to the husband’s directions, the defendant issued the stock certificate in the name of the husband and the wife as joint tenants. The wife testified th'at all the funds making up the purchase price were derived from three sources: her father, her husband’s brother, and a bank loan obtained by increasing the mortgage on the family residence, which was held in joint tenancy. She also testified that she had participated in raising the funds and that she considered herself to be a joint owner of the stock. Nonetheless, the court held that the wife was not a “purchaser” as contemplated under the Securities Act for purposes of proceeding under the statute. The court defined the term “purchaser” as “a party to a transaction wherein he assumes ownership in exchange for valuable consideration” (20 Ill. App. 3d 514, 522, 314 N.E.2d 549, 555), and observed that since the wife was outside the actual contract negotiations for the purchase of the stock, her role was at best one of “financier” with respect to the transaction, despite the fact that she owned a one-half interest in the property. The court noted, however, that “a financing party may assume a variety of legal roles with regard to the benefited party, such as donor, lender, or beneficiary of a resulting trust, that have no relationship whatever to the agreement between the contracting parties.” (Emphasis added.) 20 Ill. App. 3d 514, 522, 314 N.E.2d 549, 555.

Although we recognize that the provisions of these securities statutes are to be liberally construed (Norville v. Alton Bigtop Restaurant, Inc. (1974), 22 Ill. App. 3d 273, 317 N.E.2d 384), we do not believe that under the facts and circumstances here Christine was a “purchaser” with respect to the THI stock transactions. There was considerable evidence establishing that the plaintiffs provided financing with regard to THI, and indeed we have recognized the existence of a resulting trust in favor of Christine in a one-half interest in 4,500 shares of the THI stock. We believe that the rule of Gowdy v. Richter is particularly appropriate here, and conclude that as between the parties, only Sims was a purchaser with attendant rights of rescission under the statutes. Accordingly, we will not reverse the trial court’s denial of plaintiffs’ claim under the securities statutes with respect to the THI transactions.

V

We now turn to plaintiffs’ claims of error which deal with various findings of fact and conclusions of law relating to the 186 shares of Zack Company stock acquired by Sims in 1973. As with the THI stock, plaintiffs contend that the evidence at trial overwhelmingly supported the finding that plaintiffs were entitled to the 186 shares upon the theories of constructive trust, resulting trust and redress of securities laws violations. Plaintiffs also claim alternatively that Mrs. Zack was entitled to rescind the sale of these shares on the theory of duress.

With respect to plaintiffs’ resulting trust claim, we have examined the record with reference to the intention of the parties, the burden of proof with respect thereto, the quantum of evidence required and the amount of evidence to rebut a resulting trust, and we do not find that the trial court’s finding of no resulting trust is contrary to the manifest weight of the evidence. The trial court found that Christine intended Sims to be the sole beneficial owner of the 186 shares. The evidence was contradictory and rested largely on the assessment of witness credibility, which in our opinion should not be overruled.

Similarly, with reference to the trial court’s failure to impose a constructive trust based on actual fraud or abuse of confidential relationship, we do not believe that the trial court’s findings are contrary to the manifest weight of the evidence.

The crux of plaintiffs’ fraud claim was that Sims was able to purchase the 186 shares of Zack Company stock as as result of misrepresentations to Christine that she would have an ownership interest in those shares. Sims testified, to the contrary, that Christine understood that he would be the sole owner of the stock. The trial court concluded that Sims’ testimony was credible, and that the pledge of Christine’s stock to facilitate the bank loan in question was not based on any representation that she would be an equitable owner. Moreover, it was established that as a result of Christine’s actions she was ensured of becoming trustee and income beneficiary of the residuary trust, entitled to an annual income of $40,000 to $50,000 per year. The trial court concluded that the above consideration to Christine was a key component of the transaction. We do not find these findings to be against the manifest weight of the evidence.

Although plaintiffs point to evidence showing that Sims, on one occasion, signed Christine’s name to a renewal of the bank loan, we do not believe such evidence clearly establishes plaintiffs’ claim of misrepresentation in view of the record. It was undisputed that Christine had tendered to Sims an executed power of attorney with respect to the 200 pledged shares. In addition, Christine testified that had she been asked to sign the renewal note she would have done so, and had she known at the time that Sims had signed it, she would not have considered his actions to be forgery. Under the circumstances we feel the trial court was justified in concluding that Sims had authority to sign his wife’s name. Accordingly, we will not reverse the court’s findings with respect to the alleged fraud.

We have also examined plaintiffs’ claim that Sims abused a fiduciary relationship with Christine in his acquisition and financing of the 186 shares of Zack Company stock. Plaintiffs cite many facts in evidence which they contend illustrate the manner in which Sims was benefited at the expense of Christine. Plaintiffs argue, inter alia, that Sims was able to purchase the stock at “greatly below book value” and as a result Christine was deprived of the full value of the stock which she might eventually inherit. Sims contends that this claim converts a contingent expectancy into a certainty since Christine would inherit the proceeds from the sale of stock only if her mother predeceased her, assuming the trust was still in existence at such time. Sims also points to evidence that Mrs. Zack had previously tried to find a buyer without success; that he was not anxious to buy the stock; and that Mrs. Zack set the purchase price and terms with the advice and counsel of Howard and attorney Gatenbey.

We have examined the above and other examples of Sims’ alleged abuse of fiduciary duty and conclude that plaintiffs have not shown by clear and convincing evidence that Sims was unjustly enriched by either fraudulent acts or the abuse of a confidential relationship. Contrary to the contention of plaintiffs here, we believe that the evidence showed that Sims and Christine were mutually benefited by the transaction as evidenced by the benefits derived by Christine as income beneficiary and trustee of the residuary trust. Accordingly, we will not upset the trial court’s refusal to impose a constructive trust with respect to the 186 shares.

VI

Plaintiffs have also argued that Sims’ purchase of the 186 shares should have been rescinded because of his violation of. Illinois securities laws, both with respect to Christine and Mrs. Zack. Ill. Rev. Stat. 1979, ch. 121/2, pars. 137.12(F), (G), and (I).

In examining Christine’s claim, we are of the opinion that she was properly denied relief under the securities laws. Initially, we note that plaintiffs have argued that Sims’ “action and omissions” constituted an unlawful scheme. However, plaintiffs, in their brief, refer us to no particular actions or omissions to support this conclusory statement. Under the rule that points not argued are deemed waived, we do not believe this argument has been adequately presented for review here. (73 Ill. 2d R. 341(e)(7).) Moreover, we find that the rule of Gowdy v. Richter (1974), 20 Ill. App. 3d 514, 314 N.E.2d 549, as discussed above with reference to the THI transactions, is equally applicable to deny Christine standing with respect to the sale of the 186 shares.

We also point out that relief under the Illinois Securities Law is wholly statutory in nature and the only civil remedy provided for by section 13 is actual rescission of the sale of the securities. (Ill. Rev. Stat. 1979, ch. 1211/2, par. 137.13; Shofstall v. Allied Van Lines, Inc. (N.D. Ill. 1978), 455 F. Supp. 351.) Thus, even assuming that Christine’s agreement to co-sign the bank loan and her pledge of her 200 shares of Zack Company stock as collateral for the loan are to be treated as a “sale or purchase of a security” so as to bring such transactions within the ambit of the securities laws (see, e.g., Rubin v. United States (1981), 449 U.S. 424, 66 L. Ed. 2d 633, 101 S. Ct. 698 (the pledging of shares of stock to obtain a bank loan was held to be a disposition of an interest in a security for value under section 17(a) of the Securities Act of 1933 (15 U.S.C. sec. 779(a) (1976))), her sole civil remedy under the Illinois statute would appear to be rescission of these transactions only. Plaintiffs, however, have not pursued this remedy here, and we need not consider its merits.

VII

As to Mrs. Zack’s claim that rescission was mandated under the Illinois Securities Law, or alternatively under her theory of duress, we cannot say that the trial court’s determination of these issues was contrary to the manifest weight of the evidence.

Addressing briefly Mrs. Zack’s duress claim, we note that in order to invalidate an agreement on the basis of duress, a party must show that she was induced by a wrongful act or threat of another to execute a contract under circumstances which deprived the party of the exercise of her free will. (Harris v. Flack (1919), 289 Ill. 222, 124 N.E. 377; Higgins v. Brunswick Corp. (1979), 76 Ill. App. 3d 273, 395 N.E.2d 81.) Generally, the issue of duress is one of fact to be judged in light of the circumstances surrounding a given transaction. (Higgins v. Brunswick Corp.) In the instant case plaintiffs contend that Mrs. Zack disposed of the 186 shares of Zack Company stock, at a price considerably less than book value, only because Sims isolated her from her only child and grandchildren. However, Mrs. Zack failed to testify in support of her claim and the court concluded that her absence was not adequately explained. An unfavorable evidentiary presumption may arise if a party, without reasonable excuse, fails to produce evidence which is under her control. (Fuery v. Rego Co. (1979), 71 Ill. App. 3d 739, 390 N.E.2d 97; Dollison v. Chicago, Rock Island & Pacific R.R. Co. (1976), 42 Ill. App. 3d 267, 355 N.E.2d 588.) Here, the trial court had no opportunity to hear Mrs. Zack’s explanation of the events surrounding the sale of the stock, no opportunity to evaluate her credibility, and no opportunity to observe her in person to determine whether she was the type of person who could have been forced against her will to relinquish her interest in the family business under these circumstances. The trial court was left to evaluate the issue of duress solely on the basis of circumstantial evidence and the conflicting testimony of other witnesses. This evidence showed, however, that Mrs. Zack, at the brink of retirement age, had tried, unsuccessfully, to sell the stock prior to her offer to Sims in 1971. From such evidence and in view of her failure to testify, the court could have reasonably inferred that Mrs. Zack might have executed the transaction notwithstanding any inducement regarding her grandchildren.

On this record we feel that the court’s findings that the purchase was a voluntary arms-length transaction at a price set by the seller with the advice of her financial advisor, and with full knowledge that Sims was to be the sole owner, were not contrary to the manifest weight of the evidence.

VIII

Next, we have examined plaintiffs’ contentions that the trial court erred in refusing to enter judgment in favor of Christine for money allegedly appropriated from her, and for assets accumulated by Sims with his Zack Company and THI income. We find that many of these claims are repetitious and their factual bases have been considered elsewhere in this opinion. As we have previously stated, we consider the $50,000 loan and the $100,000 loan to be yet due and owing to Christine. In examining plaintiffs’ several remaining contentions here, we are ever mindful of the yet to be resolved disposition of these assets under the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 503), as noted earlier in this opinion. In any event, except as previously held, we do not find the trial court’s determination of these issues to be contrary to the manifest weight of the evidence.

IX

We are next asked to review the trial court’s refusal to accord relief on derivative claims, brought by Christine on behalf of Zack Company and THI against Sims, for alleged acts of corporate waste and mismanagement. Initially, we find that Christine has standing to bring these claims as a shareholder of Zack Company, and as beneficial owner of one-half of the 4,500 shares of THI. Galler v. Galler (1975), 61 Ill. 2d 464, 336 N.E.2d 886.

The instant dispute involves Sims’ compensation as president of Zack Company for 1974 and 1975, and his compensation as president of THI for the fiscal years 1974, 1975, 1977 and 1978. Also contested is Sims’ use of two corporate aircraft owned by the respective companies as well as other assets.

According to plaintiffs, the amounts paid to Sims during the period in question were in excess of the fair value of any services rendered by him. In support of their derivative claim plaintiffs generally cite Galler v. Galler. We do not find this case entirely dispositive of the situation presented here. Galler considered the salaries of defendants, in a family corporation, which clearly exceeded that authorized by a shareholder’s agreement. No such agreement has been presented here. In fact, in the case of Zack Company, the compensation at issue was approved by a unanimous resolution of the board of directors. This resolution authorized Sims a salary of $50,000 annually, and a profit-sharing bonus of 20% of profits before income taxes. Plaintiffs have not contended that the disputed compensation was not authorized either by the bylaws or any resolution of the boards of the two companies. Moreover, we are not convinced that the “fair value of services” necessarily is, or should be, the scale upon which to measure compensation of family shareholders in a closely held corporation such as the one at bar. In any case we think a noteworthy aspect of Galler is the great deference afforded by the reviewing court to the findings and conclusions of the trier of fact, especially on issues of credibility of the witnesses.

In the instant case the evidence consisted largely of contradictory testimony of the several witnesses. The trial court evaluated the credibility of the witnesses and the weight of their testimony. We believe that on the whole the record supports the trial court’s determination that Sims’ compensation was not excessive under the circumstances, and that plaintiffs have not proved their claims of excessive compensation or corporate waste.

X

Finally, plaintiffs urge reversal arguing that the trial court committed errors at trial in admitting and excluding certain evidence, and in limiting discovery.

First, plaintiffs argue that Sims’ testimony was inconsistent and misleading and should have been disregarded as a matter of law. (Chance v. Kimbrell (1941), 376 Ill. 615, 35 N.E.2d 48.) We have examined the examples of Sims’ testimony cited by plaintiffs in their brief. We find that the complained-of testimony relates solely to the matters of funding and ownership of THI. Since we have resolved these issues in favor of plaintiffs by the imposition of a resulting trust in the THI stock, we feel that plaintiffs have shown no prejudice, and we need not comment further on the credibility issues raised herein.

Next, plaintiffs contend that the trial court erred in refusing to order Sims to answer an interrogatory concerning his net worth as of December 15, 1976. The trial judge has wide discretion in the control of discovery (Cohn v. Board of Education (1970), 118 Ill. App. 2d 453, 254 N.E.2d 803), and a reviewing court will not interfere with a trial court’s ruling on discovery matters unless there is manifest abuse of discretion. (Dobbs v. Safeway Insurance Co. (1978), 66 Ill. App. 3d 400, 384 N.E.2d 34.) Under Supreme Court Rule 201(a), the duplication of discovery methods to obtain the same information should avoided. (73 Ill. 2d R. 201(a).) Here, plaintiffs requested the same information from defendants by means of deposition and by the production of documents. In addition, the court permitted an in camera inspection of Sims’ tax returns for the years in question. In light of the above, we find no manifest abuse of discretion by the trial .court.

Plaintiffs next argue that the trial court erred in excluding certain evidence explaining Mrs. Zack’s failure to testify at trial and then raising an inference from her failure to testify. During trial Christine sought to testify about the poor condition of her mother’s health to explain why she could not testify as a witness at trial. The trial court excluded some of this testimony and then later found that no competent or credible explanation was given for Mrs. Zack’s failure to testify.

Specifically, plaintiffs offered rebuttal testimony of Christine that Mrs. Zack was 77 years old and in poor health. She suffered from diabetes, for which she took two insulin injections daily, and experienced “complications inherent with diabetes.” She testified that Mrs. Zack had peripheral neuritis and back problems which a doctor thought might be the result of an unspecified nerve problem or a possibly ruptured disc. She had “retinal hemorrhages” and only partial vision in the right eye. In addition, she had memory lapses which were becoming more pronounced and of longer duration. Christine offered the opinion that a doctor would “probably diagnose” it as senility.

Defendants’ counsel objected to Christine’s conclusions and medical opinions on the grounds that they were self-serving and beyond her qualifications to render medical opinions. The court struck the conclusion that Mrs. Zack’s health was “poor,” and the testimony that Mrs. Zack had “complications that accompany diabetes,” “hand in glove syndrome,” and “the possibility of a ruptured disc.” The remaining testimony was allowed.

Where an adverse presumption might arise from a party’s failure to call a witness at trial, that party is entitled to explain why the witness is unable to testify. (Warth v. Loewenstein & Sons (1905), 219 Ill. 222, 76 N.E. 379.) If there is a plausible explanation for a party not testifying, or if a party is not a competent witness, no unfavorable presumption is warranted. (In re Estate of McVicker (1963), 39 Ill. App. 2d 389, 188 N.E.2d 731.) It remains, however, within the province of the trial court to determine if such a plausible explanation has been proved by credible and competent evidence.

Here, there was no evidence that Mrs. Zack was not competent to testify. Plaintiffs rather contend that Christine’s personal observations constituted competent evidence of Mrs. Zack’s poor health, which explained her inability to testify. On the basis of the evidence the trial court was not persuaded that Mrs. Zack was unable to testify due to her disabilities. The court’s determination rested in part on assessment of Christine’s credibility, and we will not reverse its determination on that issue. Plaintiffs here were not foreclosed from offering competent medical testimony to explain Mrs. Zack’s inability to testify but none was offered. We feel that under these circumstances the trial court was under no obligation to accept Christine’s explanation of Mrs. Zack’s failure to testify.

We have considered the plaintiffs’ final contentions of error with respect to the trial court’s exclusion and admission of certain evidence. The determination as to the admissibility of evidence rests primarily in the discretion of the trial court and its decision will be reversed only where that discretion has clearly been abused. (Country Mutual Insurance Co. v. Adams (1980), 85 Ill. App. 3d 501, 407 N.E .2d 103.) After reviewing the relevant evidence, we find no clear abuse of discretion in the evidentiary rulings at issue.

XI

Accordingly, paragraphs 17 and 50 of the findings by the circuit court are modified as herein set forth; the judgment is modified (a) to impose a resulting trust in favor of Christine as to a one-half interest in the 4,500 shares of THI held by Sims, and to order Sims to transfer and deliver to Christine her interest therein, namely, 2,250 shares; and (b) to enter judgment in favor of Christine and against Sims in the amount of $168,825.25. The judgment of the circuit court as hereby modified is affirmed.

Modified in part; affirmed as modified.

LORENZ and WILSON, JJ., concur.

Supplemental Opinion on Denial of Rehearing

JUSTICE MEJDA

delivered the opinion of the court:

Plaintiffs have filed a petition for rehearing contending that the money judgment awarded herein should be further modified to include interest on two unpaid loans, computed to the date of judgment. The subject loans are the $50,000 loan made by Christine to Sims in 1968 and the $100,000 loan made by her to Sims in 1970.

We have carefully reviewed the relevant portions of the record, and we find that the evidence presented does not support the claim for additional interest on these two loans. Plaintiffs refer us to no facts or evidence in the record, other than Sims’ general statement that he owed these loans “and accrued interest,” which would indicate that Christine is entitled interest beyond the $18,825.25 accruing on the amount loaned to Sims for the purpose of investment in THI. With respect to the $100,000 loan, the fact that Sims loaned this amount to THI at an interest rate of prime plus 1/4% does not require us to fix the rate of interest payable on the note from Sims to Christine at the same rate. These were separate transactions between separate parties. The note evidencing.the subject loan was not produced at trial, nor does the record disclose the existence of any terms requiring the payment of interest on this note.

There being no evidence to support the claim for interest beyond that awarded in our modified judgment, we adhere to our original opinion. Accordingly, the plaintiffs’ petition for rehearing is denied.

LORENZ and WILSON, JJ., concur.

      Counts I and III were based on the theory of resulting trust. Counts II and IV were grounded on the theories of constructive trust, common law fraud, and violation of Illinois and Indiana securities laws. Count V was based on duress. Counts VI and VII were derivative claims brought on behalf of Zack Company and Terre Haute Industries for corporate waste. Count VIII was based on a theory of constructive trust and unjust enrichment.

      As an outgrowth of the termination of the marriage of Christine and William Sims, the respective parties have reserved for subsequent determination in the Domestic Relations Court, the question of whether certain assets which are the subject of this action are to be treated as marital or nonmarital property for purposes of ultimate disposition under the Illinois Marriage and Dissolution of Marriage Act. (Ill. Rev. Stat. 1979, ch. 40, par. 503.) Accordingly, we intend and express no opinion as to the marital or nonmarital character of these assets in the determination of this appeal.

      On the instant record it is impossible to assign a certain percentage to the cash contribution of the respective parties to the cash fund. Based on the substantial evidence adduced on this point, however, at least one-half of the money used to purchase the THI stock was clearly traceable to Christine’s funds.


source: Caselaw Access Project

author: JUSTICE HEIPLE JUSTICE STOUDER,

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIAM C. LAMPTON, Defendant-Appellant.
    Third District
    No. 81 — 500
    Opinion filed July 2, 1982.
    Rehearing denied August 27, 1982.

      STOUDER, J., dissenting.
    Robert Agostinelli and Charles W. Hoffman, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    Bruce W. Black, State’s Attorney, of Pekin (John X. Breslin and Terry A. Mertel, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE HEIPLE

delivered the opinion of the court:

On April 14, 1981, a Tazewell County grand jury indicted the defendant, William Lampton, for attempt (murder), armed violence (two counts), and aggravated battery (four counts). Trial was by jury. The jurors returned guilty verdicts on all armed violence and aggravated battery charges. Defendant was acquitted of attempt. Judgment was entered on the first armed violence count. Defendant appeals.

Were the prosecutor’s opening remarks so prejudicial as to deny defendant a fair trial? Did the People prove guilt beyond a reasonable doubt? Did the trial judge err in aggravating defendant’s sentence, as well as in the degree of punishment imposed? These are the issues in this appeal.

In sum, the People established the following facts. At 4:30 p.m., April 8, 1981, defendant, Edward Lavin, Tom Daly, Bob Ring, and John Cowan were quaffing beers in Gloria’s tavern in Pekin. All these men worked together as tradesmen. Lavin and the defendant had known each other for 13 years as fellow union workers. The men continued drinking until about 8:30 p.m. Lavin and defendant began arguing over a work-related incident. Defendant popped Lavin in the chin with his fist. A grappling match ensued. Finally, the two were disentangled. Defendant got up to leave. When exiting, he said to Lavin, “We’ll finish this outside later.”

The others continued drinking. Thirty minutes later, the four men left the bar. They went into the parking lot to enter Mr. Ring’s car. Mr. Lampton, loitering at the rear of the lot, shouted, “Lavin, I want to talk to you.” Lavin told the others he was going to talk to Lamp-ton and try and calm him down. He went over. As he did, Lampton shot him in the stomach with a pistol from a distance of three feet. Lavin fell to the ground. Defendant walked away. Cowan and Ring came to Lavin’s aid. He told them Lampton shot him. Then, Lavin blacked out. The police arrived and took him to the hospital. A .38-caliber slug was removed from the victim’s abdomen. A forensic scientist testified the slug was from a .38-caliber ammunition.

When Lavin was in the hospital he would not, at first, tell the police who shot him. After five or six days he finally told the police Lampton was his assailant. By then Lavin not only knew the extent of his injuries, but also had conferred with his attorney. Whien cross-examined, Lavin denied ever telling Cowan or Ring that he did not know who shot him. Also, he disclaimed telling police that on the night of the shooting he was shot as he entered an automobile in the parking lot.

The defendant presented the testimony of 13 witnesses. John Cowan’s version of the shooting controverted Mr. Lavin’s account. According to Cowan, Lavin was the first to leave Gloria’s and he did so alone or with Mr. Ring. Mr. Ring did not testify. After his exit, Cowan heard what he thought was a car backfiring. He went outside. He found Lavin lying wounded in the parking lot. Cowan, as well as Tom Daly, testified they did not hear Lampton say to Mr. Lavin, “We’ll finish this outside later.” Also, Cowan stated that Lavin never told him he was going to talk to Lampton in the parking lot. Finally, Cowan declared, Lavin did not tell him that Lampton had shot him.

Police officer Terry Ziegenbein testified that on the night of the shooting Lavin said he did not know who shot him. This was corroborated by Pekin policeman Roger Davis and Neis Calbert, the emergency room physician who treated Lavin. Both Calvert and Ziegen-bein did testify that Lavin was in a state of shock and experiencing pain due to his wound when they talked with him. Also, they said, Mr. Lavin appeared to be in control of his senses. Dr. Robert Gregorski testified that Lavin’s blood alcohol count was 196 when he arrived at the hospital. Such a figure indicates that Lavin was either “drunk” or “under the influence of alcohol” depending upon Mr. Lavin’s “experience” in drinking alcoholic beverages.

Pekin policeman Ted Hartman testified he seized a box of ammunition from defendant’s truck and a .357 magnum handgun from defendant’s home. The People’s ballistic’s expert, James Roberts, while testifying for the defense, stated the .38-caliber slug removed from the victim’s body had not been fired from the seized pistol. Neither did the slug come from the seized ammunition. The weapon used to shoot the victim is not in evidence.

Mr. Lampton was the next witness. He denied shooting Mr. Lavin. He admitted fighting at the tavern. He explained that recently he was demoted at work and felt Lavin, as a fellow union member, should have spoken out against the job action, but did not. Apparently, such depreciated defendant’s pride. After the fight, Mr. Lampton said, he went to the Crazy Horse Saloon in Bartonville, some 10 miles distant. He arrived at 9 p.m. and spoke with Robert Koeppel about a friend. Defendant drank some beer. He left and drove home, arriving around 9:30 p.m. Mr. Lampton was arrested in the early morning of August 9, 1981 by officer Craig Salmon. Officer Salmon said that when informed of the shooting, defendant said he never liked Lavin and if he was shot it could not have happened to a nicer person.

Robert Koeppel owns the Crazy Horse Saloon in Bartonville. Koeppel remembered talking with Lampton on that evening sometime between 5:30 p.m. and 9:30 p.m. Mrs. Lampton testified for the defense. She stated she was not sure when defendant came home on April 8, 1981. When he entered the home she did recall she was putting the couple’s nine-year-old child to sleep. The child’s usual bedtime was 9:30 p.m. Also, Mrs. Lampton said, to her knowledge, her husband owned only one handgun.

In rebuttal, Pekin policeman James Conover gave testimony. He said defendant told him that he did not know when he came home on the night of the shooting. And, Mr. Lavin said the $1700 found on his person when he was shot was money for a debt he had to pay in court on April 9, 1981. The police had recovered this money from the victim as well as four pills which the police determined were not controlled substances.

Finally, two stipulations were read to the jury. First, Tom Hines, another Pekin police officer, said that John Cowan told him that he never asked Lavin any questions when Lavin was lying wounded in the parking lot. This conversation with Officer Hines occurred on April 8, 1981. And, in testimony before the grand jury, Cowan stated, he had asked Lavin who shot him, but Lavin responded, “I don’t know.”

After the jury returned their verdicts, a presentence investigation was conducted. A psychological evaluation of the defendant was appended to the presentence report. At the sentencing hearing, evidence in mitigation was presented and considered by the court. No evidence was offered in aggravation. Mr. Lampton was sentenced to 10 years’ imprisonment.

In his opening statement, the prosecutor told the jury Bob Ring would testify that he saw a man fitting Mr. Lampton’s physical description walk away from Lavin immediately after the shooting. Mr. Ring never testified. Defendant maintains he was denied a fair trial because the People failed to prove those facts they said they would prove at the trial’s outset. We disagree.

It is error where a prosecutor with foreknowledge includes remarks in his opening statement which are not thereafter proved at trial. This is so because such comments amount to nothing more than a prosecutor’s unsworn testimony. (People v. Rodgers (1976), 42 Ill. App. 3d 499, 502-03.) But the fact of this omission of proof is not a death knell to a criminal conviction. Only where such delinquency is attributable to the deliberate misconduct of the prosecutor which results in substantial prejudice to defendant does reversible error occur. People v. Harris (1979), 70 Ill. App. 3d 363, 368; People v. Butler (1973), 12 Ill. App. 3d 541, 548.

In Butler, defendant was charged with forgery and theft of postal money orders. In his opening statement the prosecutor announced that a bank president would describe the getaway car and its license number when appearing as a State’s witness. Also, such witness would declare that the person trying to cash the questionable money orders left the bank in such vehicle. The witness did not testify. It was held the prosecutor’s opening statements, although error, were not reversible error. Several reasons were given for such conclusion. First, the prosecutor cautioned the jury in his opening statement that his remarks were not evidence. Next, the prosecutor did not directly say the bank president would identify the defendant. Finally, the failure to bring the bank president forward was not the result of bad faith on the prosecutor’s part. Thus, the court found the prosecutor’s opening statement was not prejudicial.

We reach a similar conclusion in the cause at bar. Defendant offered no proof that the People’s refusal or failure to call Mr. Ring was done in bad faith. Because the prosecutor could not ascertain the content of Mr. Ring’s testimony does not denote the prosecutor’s omission to call Ring was done purposefully. Nobody can be certain what a witness will say at a trial. Once the jury was impanelled, various considerations may have arisen which altered the prosecutor’s original decision to employ Ring as a witness for the People. Merely because Mr. Ring made inconsistent statements before trial does not mean the prosecutor knew, when he made his opening statement, that he would not call Bob Ring at trial. More than that is required to show the prosecutor’s bad faith.

Next, the prosecutor’s statement as to Ring’s testimony was not direct proof. The prosecutor said the witness could not identify who shot Lavin, but could only describe him. Also, the prosecutor and defense counsel in their opening statements stated their remarks were not evidence, and anything they said would be proven, and if it was not, it should be disregarded. Additionally, in closing argument the prosecutor told the jury to ignore the comments concerning Mr. Ring made in his opening remarks. Defense counsel acknowledged this in his statement. Finally, the trial judge instructed the jury to disregard any opening statement or argument not based on the evidence. For these several reasons we conclude the prosecutor’s comment, although erroneous, was not so prejudicial as to deny defendant a fair trial.

Defendant says he was not proven .guilty beyond a reasonable doubt. He argues the victim was thoroughly impeached and his failure to name the defendant as his assailant until five days after the offense establishes the improbability of the guilty verdicts.

It is the function of the jury, not us, to assess the credibility of the witnesses and weigh conflicting accounts as to the events in a particular cause. It is within the jury’s prerogative to credit or dis- . credit such evidence as it wishes, so long as the evidence as a matter of law leaves no reasonable doubt of guilt. (People v. Hampton (1969), 44 Ill. 2d 41, 45.) As a reviewing court we have no authority to insert our beliefs for the collective judgment of the jury.

Apparently, the jury chose to believe Mr. Lavin’s version rather than the defendant’s view of what happened on April 8, 1981. Although Mr. Lavin did not identify the defendant as the offender until five days after the shooting, Lavin explained why he did not. Having known Lampton for many years as a fellow worker, he did not wish to involve the latter in trouble. Mr. Lavin did not think he was seriously injured. Only when he discovered the gravity of his injuries did he inform the police of Lampton’s identity. As to the inconsistencies in Mr. Lavin’s testimony, such was for the jury’s determination in evaluating his character for truthfulness. The same is equally true with respect to Mr. Cowan’s testimony. It was for the jury to resolve any discrepancy. We observe that Mr. Lavin was shot from a distance of three feet in an apparently well-lighted place. His identification of Lampton as the perpetrator, although belated, was unequivocal. (Compare People v. Gardner (1966), 35 Ill. 2d 564, 571.) The testimony of a single eyewitness, if positive and credible, is sufficient to convict even if contradicted by the accused. (People v. Novotny (1968), 41 Ill. 2d 401, 411-12.) Based on our thorough review of the record, the evidence is not so improbable or unsatisfactory as to raise a reasonable doubt of guilt.

Next, the defendant argues he was improperly sentenced. Allegedly, the trial court incorrectly considered, as a statutory factor, that defendant’s conduct caused serious harm. Mr. Lampton maintains that factor is implicit in the offense of armed violence based on aggravated battery. Therefore, since inherent to the offense, such factor should not be used to aggravate a sentence since it is reasonable to conclude the legislature already considered such factor in determining penalties for the offense originally. (Accord, People v. Conover (1981), 84 Ill. 2d 400, 404-05.) Alternatively, defendant says his sentence is excessive. On the former contention he asks for a new sentencing hearing. On the latter, he requests a reduced sentence. We decline both invitations.

A trial judge may properly consider in sentencing a defendant, conduct which causes bodily harm even in those cases where great bodily harm is arguably implicit in the offense for which a defendant is convicted. (People v. Hert (1981), 95 Ill. App. 3d 871, 874.) The amount of harm sustained by a victim in a given situation varies from case to case. It is not a constant but one of degree. Its consideration depends not on the classification of the offense but the peculiar conduct of the actor, which is an ever-changing variable. A sentencing judge does not err in considering the amount of harm as a statutory aggravating sentencing factor in such context.

Finally, defendant asks us to reduce his 10-year prison term (73 Ill. 2d R. 615(b)(4)), because the trial court purportedly abused its discretion. We will not do this.

The range of punishment for armed violence is not less than six nor more than 30 years’ imprisonment (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 8—1(a)(3)). The trial judge balanced the two aggravating factors of deterrence and the infliction of serious bodily harm against the substantial evidence in mitigation. Even though this was defendant’s first offense, a 10-year prison term resulted. It is not our function to attempt to peer into the sentencing judge’s mind to ascertain why he sentenced defendant to the term imposed. Such is impossible as it is unwise. We cannot say this punishment, which was at the lower end of the those penalities which might have been levied, contravenes the spirit and purpose of the law. (People v. Sprinkle (1974), 56 Ill. 2d 257, 264, cert, denied (1974), 417 U.S. 935, 41 L. Ed. 2d 239, 94 S. Ct. 2650.) This offense was a calculated act of harm on another human being. No abuse of discretion occurred.

For the reasons stated, the verdict and judgment of the circuit court of Tazewell County are hereby affirmed.

Affirmed.

BARRY, RJ., concurs.

JUSTICE STOUDER,

dissenting:

I respectfully disagree with my colleagues. In my opinion the defendant was deprived of a fair trial by the prosecution’s representation during opening statement about what a witness would testify to when the witness did not thereafter testify.

As observed in People v. Rogers (1976), 42 Ill. App. 3d 499, 502-03, 356 N.E.2d 413, “*** the prosecutor cannot comment during his opening statement upon what testimony will be introduced at trial and then fail to produce such testimony. Such arguments and comments effectively assert the prosecutor’s own unsworn testimony in lieu of competent evidence.” This rule often refers to the representation having been made with knowledge the testimony will not be produced or, in other words, is made in bad faith. The reference to knowledge or bad faith reflects the situation as it is at the time of the opening statement. No evidence has been presented, and the defendant is in no position to object as he may if the statement were made during final argument that it is not based on the evidence or is a misrepresentation of the evidence. Even though the presence of good faith or bad faith is not a factor which should determine whether the defendant has been deprived of a fair trial, the cases sometimes tend to suggest a good-faith representation renders the error harmless and that a representation made in bad faith is less likely to be harmless error.

In People v. Platter (1980), 89 Ill. App. 3d 803, 412 N.E.2d 181, and the cases cited in it, the ambivalence of courts in treating good and bad faith representations is demonstrated. After having denied the defendant’s motion in limine to exclude a doctor’s testimony concerning the condition of the child on some prior occasion, the prosecutor in Platter (a child-abuse prosecution) represented during his opening statement that the doctor would so testify. When the testimony was offered during the trial the court decided the testimony was too remote in time and ruled it should not be admitted. Clearly the prosecution represented the doctor’s testimony in good faith, and the only reason the testimony was not presented was because of an adverse ruling of the trial court. In holding that reversible error was not committed the court emphasized the good faith of the prosecution, an emphasis which is understandable but misleading. The implication of the court’s reasoning is that if the prosecution knew the doctor would not testify a contrary result might have ensued.

It seems to me that cases such as Platter and People v. Butler (1973), 12 Ill. App. 3d 541, 298 N.E.2d 798, relied upon by the majority, by references to good or bad faith fail to apply the usual and customary standard in determining whether an error is harmless or not. By not applying the usual harmless-error standard the effect of the error is glossed over. As- applied to this type of error, it seems to me that if the representation has some significant probative value concerning a contested material issue in the case it should be regarded as harmless error only if beyond a reasonable doubt it might not have contributed to the verdict of the jury.

Before proceeding further, I think it well to suggest how I believe the good or bad faith of the prosecution should be taken into account. Where the prosecutor has represented during his opening statement that testimony will be presented which is not, then I believe it is his burden to show the- failure to produce such testimony was a good-faith omission. If the failure to present the testimony was not made in good faith, then I believe the prosecutor also has the burden of showing the failure did not deprive the defendant of a fair trial. Contrary-wise, if the omission was in good faith, then it should be the defendant’s burden to establish that the omission did result in unfairness. In most cases these distinctions will make little difference, but at a minimum they should place the burden where it belongs. It would also underscore the nature of the representation itself. The harmful effects of such representation ought not to be excused or ignored merely because made in good faith, nor should the prosecution be penalized merely because of its bad faith.

I have- dealt at some length with the issue of good or bad faith because both the majority opinion and People v. Butler (1973), 12 Ill. App. 3d 541, 298 N.E.2d 798, the principal case relied on, in finding no reversible error do so by depending substantially on a holding the representation was made in good faith. As I have already said,, I do not see how the good-faith characterization of the representation can affect the nature and effect of the representation on the fairness of the trial. In my opinion, the representations were not made in good faith and in any event might have contributed to the verdict of the jury, thereby rendering the error harmful rather than harmless.

During his opening statement the prosecution informed the jury that Bob Ring would “testify that he saw a person walking away from Lavin after Lavin doubled up and he will describe that person to you and his description will match that of the Defendant, Mr. Lamp-ton. However, he will also tell you, I believe, he could not see the face of the person and he could not say it is Lampton or it isn’t Lampton.”

Prior to trial, Bob Ring was placed on the State’s list of witnesses. Thereafter, the prosecution served a grand jury subpoena on Ring. At a pretrial hearing to quash this subpoena, the assistant State’s Attorney asserted that Ring had been subpoenaed because the State believed that he “knew more than what [he] told the police” and perhaps was involved in obstruction of justice. Later, during the trial, in discussing whether certain stipulations would be entered, the prosecutor stated that there were “certain reasons” that he was not going to call Ring as a wdtness; that Ring had “made several inconsistent statements” and the prosecutor did not know what Ring would testify to if called as a witness.

Contrary to the holding of the majority, the record discloses a classic case of bad faith. When the record shows, and the majority concedes, the witness was not called because the prosecution did not know what he would testify to and because he had made inconsistent statements, I find no support for any conclusion the representation was made in good faith.

This brings me to the representation itself and its potential effect. Could , it have contributed to the verdict of the jury? I think in this case the answer must be “yes.”

This is a case of the identification of the defendant as the offender by a single witness, the victim. As correctly stated by the majority such identification is sufficient even if contradicted by the defendant to support a conviction. However, the credibility of the victim’s testimony is a substantially disputed issue since he did not identify the defendant, although well knowm to him, for nearly five days after the incident had taken place and after earlier indicating he could not identify his assailant. Anything tending to corroborate the victim’s testimony might well have tipped the credibility balance in favor of the victim, and this was the natural effect of the representation of Ring’s testimony to come. The seed was planted early in the minds of the jurors that a third party had seen someone of the defendant’s description in the parking lot, and I do not see how any of the peripheral advice to disregard the thought or idea could obviate the harmful effect of the error. This is a perplexing problem for trial courts and courts of review. Where an error has occurred and has been recognized during the course of a trial, the nature of the error is in the final analysis the determination of whether its effect can be disregarded and ignored by appropriate instructions. In this case I think not. Were the credibility of the victim’s testimony not so subject to impeachment, maybe it might be otherwise.

In summary, I believe the representation in the prosecution’s opening statement to the testimony which was thereafter not produced constituted reversible error and the defendant should be granted a new trial.