author: JUSTICE JONES

text:
    THE CITY OF ALTON, Plaintiff-Appellee, v. ROBERT H. CARROLL et al., Defendants-Appellants.
    Fifth District
    No. 81—392
    Opinion filed September 9, 1982.

      James S. Reeves, Jr., of Alton, for appellants.
    James E. Schrempf, of Alton, for appellee.
   JUSTICE JONES

delivered the opinion of the court:

Defendants Robert and Barbara Carroll appeal from a judgment of the circuit court of Madison County ordering the demolition of a building found to be “dangerous and unsafe” under section 11 — 31—1 of the Illinois Municipal Code (Ill. Rev. Stat. 1979, ch. 24, par. 11— 31 — 1) and section 5 — 1—8 of the City Code of Alton, Illinois. They contend that there was insufficient evidence to establish that the building is dangerous and unsafe and that the trial court erred in not specifying in its judgment the particular defects which rendered the building unsafe. Defendants further contend that the court failed to provide them a reasonable opportunity to repair the building in question prior to ordering its demolition and so violated their constitutional rights of due process. Defendants also assert that the trial court erred in ordering the demolition of a building having historical and architectural significance.

The building here involved is an L-shaped, two-story brick structure located in a residential area of the city of Alton. It is a “vintage” structure, dating from- before the turn of the century. Prior to 1977, the building was used for multiresidential purposes under a nonconforming use status in an area that is zoned for single-family residences. After being vacated in 1977, the structure was damaged by two different fires, one in 1977 and one in 1980. Following the first fire, the doors and windows were boarded up and a chain link fence was erected around the building.

On May 16, 1977, the Carrolls were notified by a letter from the Alton city building inspector that the building had been inspected and found to be “totally vacant, vandalized, and open at a number of windows.” They were given 30 days in which either to demolish the structure or repair it to comply with the minimum standards of the city’s building, electric, and plumbing codes. In spite of this and similar correspondence subsequently received by the Carrolls, they made no improvements to the building other than to secure it against further vandalism as described.

On February 22, 1981, the city of Alton filed a complaint against the Carrolls, as owners of the subject property, and the Greenland Co., Inc., and the Farmers State Bank of Greenfield, as mortgagees of the property, seeking an order authorizing the demolition of the building in question. The complaint alleged that the building was dangerous and unsafe in that it was “open at door and window; structurally unsound; fire hazard; generally deteriorated; and beyond reasonable repair.” The complaint further alleged that the total cost to repair the defects would exceed the market value of the property as repaired and that the defendants had failed to repair or demolish the building upon notice to that effect by the City.

At trial Miaban Hoene, Director of Building, Housing and Zoning for the city of Alton, testified that, as a result of the two fires in 1977 and 1980,

“[t]he interior [of the subject building] is completely gutted. What we have is an outer shell of masonry, and we have a roof plus interior walls; but there was some structural damage to ceilings and also walls. The building is not in a state of collapse to define it; but we have a fire-gutted shell, and that’s all. There is evidence of further deterioration on the outside due to the elements working on it and especially in corners where the soffit has deteriorated to the point of falling out ***.”

Mr. Hoene stated further that some of the bricks have actually fallen, and that the fire damage was so severe that the electrical and plumbing services would have to be redone entirely, both as a matter of necessity and in order to meet minimal housing codes. Heating and cooling services are also nonexistent. The ceilings are burned through with holes of various sizes between the two floors, some large enough to warrant the replacement of entire ceilings.

Mr. Hoene stated that in his opinion the cost to improve the structure would exceed the market value of the house when so improved. His opinion was based upon the expenditures necessary to rehabilitate the house so as to bring it within the minimal standards of the housing code.

On cross-examination Mr. Hoene testified that because the walls of the house were of brick, its structural integrity was not impaired by the fires but that it would be necessary to replace weight-bearing components such as ceiling beams in order to make the building useable.

Dr. Carroll, defendant and owner of the house, testified that he had trouble stabilizing the house after he purchased it in 1976 because it was vandalized repeatedly. His intention at that time was to restore it for use as a single-family residence but, while he has made some improvements to an auxiliary structure on the back of the house, he has not significantly improved the main structure. During this period of time, he has maintained a dusk-to-dawn light on the back corner of the lot. He checks the premises regularly and hires a man to keep the yard mowed.

Phil Poehner, a professional real estate broker specializing in old house sales and renovations in the inner city of Alton, testified that the building in question has been identified by the Illinois Register as one of the top 50 architecturally significant buildings in Alton, although it has not yet been listed on the Register. The defendants have engaged Mr. Poehner to sell the house and have it listed with him for $15,000. He testified that the house could be renovated for $30,000. Renovation would include adding two full baths and a complete kitchen, doing the dry wall, floor work, window and door restoration, repairing the brick on the back of the house which has been partially demolished, putting in all new wiring, plumbing, heating and central air, and decorating it with good wallpaper. Mr. Peohner estimated that the fair market value of the house after being so renovated would be between $49,900 and $54,000. His figures were based on a replacement cost factor less depreciation and also comparable market values of properties of similar size in similar neighborhoods.

Mr. Poehner stated that when he was in the house four years ago it was in a dangerous and unsafe condition but that it was not presently dangerous because it would be very difficult to enter the building. Even assuming that the cost of repairing the structure would be greater than its market value when repaired, Poehner was of the opinion that the house should not be demolished because of its architectural merit.

In its judgment entered on June 10, 1981, the trial court found the structure to be “dangerous and unsafe and not reasonably repairable.” The court noted that the building has been gutted by two serious fires, that vandals have removed certain fixtures and that large holes exist in the ceilings and floors. It is located near a public park which contains a playground, a golf course and ball diamonds. The court further stated that while the building is presently boarded up and fenced, there has been no attempt to repair it since it was first burned and, under the statute, it is not a defense to an action for an order of demolition that the building is boarded up or otherwise enclosed. It was the court's finding, “based on the evidence at trial, that the state of deterioration is such that repairs to be adequate would amount to substantial reconstruction.” The court therefore ordered that the city be authorized to demolish the building and that the cost of the demolition be a lien-on the property.

The statute at issue in this suit, section 11 — 31—1 of the Illinois Municipal Code, provides in pertinent part:

“The corporate authorities of each municipality may demolish, repair or cause the demolition or repair of dangerous and unsafe buildings or uncompleted and abandoned buildings within the territory of any such municipality ***. No building may be boarded up or otherwise enclosed. The corporate authorities shall apply to the circuit court of the county in which such building is located for an order authorizing such action to be taken with respect to any such building if the owner or owners thereof, including the lien holders of record, after at least 15 days’ written notice by mail so to do, have failed to put such building in a safe condition or to demolish it. It is not a defense to such cause of action that the building is boarded up or otherwise enclosed nor may the court order such building boarded up or otherwise enclosed.” (Ill. Rev. Stat. 1979, ch. 24, par. 11-31-1.)

Section 5 — 1—8 of the City Code of Alton reiterates this language in reference to the corporate authority of the city of Alton.

In urging this court to hold that the evidence did not support the trial court’s finding that the building in question is “dangerous and unsafe,” defendants stress the security measures they have taken to prevent access to the building. Section 11 — 31—1 provides, however, that it is no defense in an action of this nature that a building is boarded up or otherwise enclosed. (See City of Chicago v. Birnbaum (1971), 49 Ill. 2d 250, 274 N.E.2d 22.) While the measures taken by defendants were desirable as a temporary safeguard against the potential hazards of the vacant building, defendants will not be allowed to avoid the effect of the statute and “borrow time” for their renovation effort by merely boarding up the building. The determination, therefore, of whether the building is “dangerous and unsafe” must be made without regard to these temporary protective measures.

From the evidence adduced at trial, we believe the trial court was justified in finding the subject building “dangerous and unsafe.” As noted in the court’s judgment, the building has been damaged by two fires which left the interior gutted with large holes in the ceilings and floors. When trial commenced approximately four years after the first fire, defendants had yet to make any repairs or improvements to the structure. Such delay may properly be considered by the trial court in finding a building “dangerous and unsafe.” (City of Chicago v. James E. Mulligan Enterprises, Inc. (1960), 27 Ill. App. 2d 481, 170 N.E.2d 13.) Further, the court noted the location of the subject building in the proximity of a part containing a playground and ball diamonds. This, too, is a valid consideration in finding that the building constitutes a hazard to the public. (Cf. Village of Gurnee v. Miller (1975), 25 Ill. App. 3d 915, 323 N.E.2d 416, where the proximity of a grade school to the building in question was properly considered in ordering its demolition.) Finally, while technical violations of city housing code provisions will not, of themselves, sustain a finding of danger to the public (City of Chicago Heights v. Furrer (1981), 99 Ill. App. 3d 414, 425 N.E.2d 1125), testimony by the building inspector in the instant case that the structure would have to be completely renovated to comply with the minimal standards of the city’s building, electric and plumbing codes provides additional grounds for the trial court’s decision.

Defendants contend further that the trial court erred in failing to specify each particular defect which rendered their building unsafe. In the leading case of City of Aurora v. Meyer (1967), 38 Ill. 2d 131, 230 N.E.2d 200, the supreme court reversed an order of demolition entered without a determination of whether the defects which rendered the building “dangerous and unsafe” could be readily repaired. The Meyer court, emphasizing the care with which a trial court should proceed in ordering the destruction of dangerous structures, held that “the statute, in providing for repair or demolition in the alternative, contemplates repair where feasible and demolition where the state of deterioration is such that repairs would amount to a substantial reconstruction.” (38 Ill. 2d 131, 136, 230 N.E.2d 200, 203.) It was in this context that the court directed the trial court to “find from the evidence what the specific defects are which render the building dangerous and unsafe. If they are such as may readily be remedied by repair, demolition should not be ordered without giving the owners a reasonable opportunity to make the repairs.” 38 Ill. 2d 131, 137, 230 N.E.2d 200, 204.

Under City of Aurora v. Meyer, then, the court in the instant case, after finding defendants’ building to be “dangerous and unsafe,” was obliged to determine from the evidence whether the building was so defective that repair would not be feasible. The court expressly found in its judgment that the building’s interior is gutted, that large holes exist in the ceilings' and floors, and that “repairs to be adequate would amount to substantial reconstruction.” In addition to the findings articulated by the trial court, the record amply illustrates the basis for its decision ordering demolition of defendants’ building. (Cf. City of Aurora v. Meyer, where the trial court heard no evidence concerning the possibility of repair or the cost of repair compared to the value of the building before ordering its demolition; City of Chicago Heights v. Furrer, where the trial court’s demolition order stated only that the building was in a “dangerous and unsafe condition” and there was no record from which to determine the basis of the court’s finding; City of Chicago v. Busch (1971), 132 Ill. App. 2d 486, 270 N.E.2d 249, where the record was silent concerning the value of the property, the cost of repairs or the condition of the structure.) Witnesses for both plaintiff and defendants agreed that the building was a mere shell which would have to be completely renovated in order to be made safe and useable. Such renovation would include the replacement of structural components such as ceiling beams. Plaintiff’s witness testified that in his opinion the cost to improve the structure to minimum housing code standards would exceed the market value of the house when so improved. There was also testimony by defendants’ witness that it would cost $30,000 to renovate the house which is now listed for $15,000. While witness Poehner testified that the house when so repaired would be worth approximately $52,000, we note that, at the time the complaint was filed in the instant suit, the property was subject to two mortgages upon which the principal balances were $40,000 and $3,500. On this record we find that the court properly determined that the house is “not reasonably repairable” and that it was not error to order its demolition.

Defendants’ contention that they were not afforded a reasonable opportunity to repair their building is without merit in this case where approximately four years elapsed from the time they first received notice of its defective condition to the time of trial. (Cf. City of Chicago v. General Realty Corp. (1971), 133 Ill. App. 2d 662, 273 N.E.2d 712, where the court held that the owner’s 10-month delay in repairing his property to comply with city ordinances was, of itself, sufficient reason for ordering its demolition.) Defendants assert, in the first place, that the notice of May 16, 1977, from the city to repair or demolish the subject building was deficient in failing to specify the conditions which needed repair. While section 11 — 31—1 does not prescribe the form of notice required in a proceeding of this nature, the purpose of such notice is to give the owner the choice of demolishing the structure or putting it in safe condition. (City of Chicago v. James E. Mulligan Enterprises, Inc.) Here defendants were apprised in the notice of May 16, 1977, that the building must be repaired to comply with the minimum standards of the building, electric and plumbing codes of the city. Despite the general terms of this notice, it served to alert defendants that certain action was required on their part in order to avoid the alternative of demolition. Defendants, however, by their own admission, made no significant attempts to improve the structure to a livable condition as they hoped to locate a buyer for the property with the interest, talent and cash to restore it to livable condition. While the notice given here may have been insufficient in a different factual context, in this case, where the building is so deficient as to be unlivable without complete renovation, we do not believe defendants were denied a reasonable opportunity to repair due to lack of information about what repairs were needed.

As to the second part of defendants’ argument that the trial court should have allowed them the election to repair their building prior to authorizing demolition, we have already noted the court’s discretionary power to choose demolition over repair when repair is not feasible. This is not a situation contemplated by the Meyer court where the property can be repaired “with comparatively little expense” or “at a fraction of the building’s value” so as to warrant an order allowing the owners to repair. We believe the requirements set forth in City of Aurora v. Meyer have been met in this case and that defendants have consequently suffered no violation of their property ownership or due process rights by reason of the court’s decision not to allow further time for repair.

There is, finally, no basis in statute or case law for defendants’ contention that the court erred in ordering the demolition of a structure having “special historical and architectural significance.” While a building’s architectural interest, like true historical significance, may be a factor in determining its value and the feasibility of repairing or restoring it, this is not a decisive consideration in an action for demolition. The court’s decision must be based, as here, upon whether public necessity requires the removal of the offending structure. City of Aurora v. Meyer.

Finding that the trial court proceeded with proper regard for the dictates of the applicable statute, we accordingly affirm the judgment rendered for plaintiff.

Affirmed.

EARNS, P. J., and WELCH, J., concur.


source: Caselaw Access Project

author: JUSTICE KASSERMAN JUSTICE WELCH,

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN OAKLEY, Defendant-Appellant.
    Fifth District
    No. 80—550
    Opinion filed September 10, 1982.

      WELCH, J., dissenting.
    Daniel D. Yuhas and Gary S. Rapaport, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Martin N. Ashley and Raymond F. Buckley, Jr., both of State’s Attorneys Appellate Service Commission, of Mt. Vernon, for the People.
   JUSTICE KASSERMAN

delivered the opinion of the court:

Defendant, John Oakley, was found guilty of armed robbery and unlawful use of weapons after a jury trial in the circuit court of Williamson County. While defendant assigns various errors in the course of the trial, we need only consider defendant’s contention that he was denied his right to a speedy trial.

The operative facts concern the armed robbery of the 7-11 store in Herrin, Illinois, by defendant’s juvenile brother, who was apprehended while leaving the store. The brother was wearing a stocking mask with eye holes and was carrying a loaded sawed-off shotgun. Defendant was charged with accountability for the brother’s acts for allegedly cutting the eyeholes in the cap and helping cut off the shotgun barrel.

Originally, defendant and John Spiller were to be jointly tried. According to defendant’s motion for discharge and the arrest warrant of record, defendant was arrested on January 30, 1980. He was in custody until his trial. Orders directing the parties to comply with discovery were filed February 8; the order directed to the State recited that compliance should be within 30 days of receipt of the order. The State’s discovery answer was filed May 15. It included the substance of a statement allegedly made by defendant to police on February 6. According to the docket sheet, as of May 15 the joint trial was set for May 21. Defendant’s motion to sever, filed May 19, alleged that his defense and Mr. Spiller’s were antagonistic. Mr. Spider’s motion to have his name deleted from defendant’s statement to police was filed May 20. At a motion hearing held that day, defendant and Mr. Spiller agreed to the assessment of a six-day delay against each of them and stated they would be ready for trial on May 27. Also on May 20, defendant withdrew his motion to sever.

Defendant’s motion to suppress his February 6 statement was denied after a hearing on May 23. Mr. Spiller’s motion to strike all references to himself from defendant’s February 6 statement was also heard that date, as was the State’s motion to sever based on the February 6 statement. The court suggested that defendant’s statements be redacted to remove references to Mr. Spiller. Defendant’s counsel replied:

“Your Honor, the Defendant, John Oakley is going to object to any rephrasing of the statement. If this statement is going to come in, we wish it to come in in its original, pristine form, both of them and we’re going to object to any rephrasing and inform the Court that if it comes in, in a redacted form, in cross examination, we’re certainly going to bring out the gist of it. We fully intend to and will do so.”

The court granted the State’s motion for severance, explaining that the above-quoted statement of counsel indicated that a redaction of defendant’s statement would be futile. The State suggested that defendant be tried first, as he was arrested one day earlier than Mr. Spiller. The court ordered that Mr. Spiller be tried first and noted that he was “hereby assessing a sixty day delay against the defendant *** M

Defendant filed supplemental answers to discovery on May 23 and June 2. On June 17 defendant moved as an indigent that he be provided with a transcript of certain testimony from Mr. Spiller’s trial.

Defendant’s motion for discharge on the grounds that he was not given a speedy trial was heard and denied July 14. The court stated that the usual practice in Williamson County was to set the trial call over a month in advance. The court remarked that at the time of the instant suppression hearing, the trial call for June was already full, requiring that defendant’s trial be held in July. The judge observed that he had ordered Mr. Spiller tried first because Mr. Spiller was not to blame because he had not resisted redaction of defendant’s statement.

Defendant’s trial began on July 16. The judge presiding at trial and at the post-trial motion was not the judge who ruled on the pretrial motions including motions for suppression, severance, and speedy-trial discharge. The court apologized to the jury for “the confusion around here,” observing that this would be “the first time that we have had three jury trials going at the same time.”

In denying defendant’s post-trial motion, the judge observed that he personally handled the setting of criminal trials and that it was his practice to set them at least 30 days in advance. The court stated that as of the suppression hearing, the July docket was the earliest open docket unless some June settings were canceled, possibly creating speedy trial problems with respect to other defendants. The court stated that in its opinion, this was probably the reason the other judge had assessed a 60-day delay. The court stated that had there been no objection to redaction of defendant’s statement, joint trial could have taken place in May as planned; therefore, it concluded, the delay was properly assessed to defendant.

Section 103 — 5 of the Code of Criminal Procedure of 1963 requires, subject to certain exceptions, that a person in custody be tried within 120 days from the date he was taken into custody or else discharged. (Ill. Rev. Stat. 1981, ch. 38, par. 103 — 5.) The only exception urged by the State is “unless delay is occasioned by the defendant.” Ill. Rev. Stat. 1981, ch. 38, par. 103 — 5(a).

Defendant was arrested on January 30. Day 120 of his confinement, excluding the day of arrest (see People v. Walton (1969), 110 Ill. App. 2d 115, 118, 249 N.E.2d 170, 171) was May 30. However, since defendant agreed to assessment of a six-day delay against him, day 120 for purposes of section 103 — 5(a) was June 5. The State’s motion for severance was granted May 23, day 107 of the statutory period. The State’s discovery answer, including defendant’s alleged February 6 statements to police, was filed May 15, day 105 of defendant’s incarceration.

Defendant argues on appeal that the actual reason he was not tried within 120 days was the State’s tardy disclosure of his statement, which revealed a Bruton problem. (Bruton v. United States (1968), 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620.) Defendant also argues that the court erred: (1) in concluding that defendant’s objection to redaction of his statement was tantamount to a motion for severance; and (2) in concluding that two jury trials could not be convened in the remaining time. The State argues that the delay caused by the severance was properly attributed to defendant since severance was unnecessary absent defendant’s announced intention to violate any redaction order.

The burden is on the State to take the steps necessary to bring about a prompt trial. (People v. McRoberts (1977), 48 Ill. App. 3d 292, 295, 362 N.E.2d 1096, 1098.) It is the defendant’s burden to show that his right to a speedy trial has been violated, and this burden includes a demonstration that defendant caused no delay, which fact must be affirmatively established by the record. (People v. Boyce (1977), 51 Ill. App. 3d 549, 554, 366 N.E.2d 914, 918.) A delay chargeable to defendant must occur as a direct result of the defendant’s actions. (People v. Neideffer (1975), 25 Ill. App. 3d 819, 822, 324 N.E.2d 46, 49.) Where there are two reasons for a delay, one due to the State and the other due to the defendant, the fact that the delay was partly attributable to the defendant is sufficient to toll the statutory term. People v. Boyce.

We do not consider the State’s motion for severance or the court’s suggestion of redaction of defendant’s statement chargeable to defendant. The fact that the motion to sever was the State’s is not controlling in that regard. (People v. Boyce.) However, it was codefendant Spiller’s right of confrontation under Bruton v. United States which was in question, not defendant’s. The State’s motion for severance was made to protect Mr. Spiller, as was the court’s suggestion that defendant’s statement be redacted. Further, regardless of whether the State is to be faulted for failure to disclose defendant’s alleged statement to police sooner, the fact that the problem was not disclosed until May 15 cannot be attributed to defendant.

The parties differ as to the interpretation to be placed upon defendant’s counsel’s above-quoted comment which precipitated the severance. The State urges that the comment evinced counsel’s intent to defy any protective order by the court with respect to redaction. Defendant urges that he was merely objecting with an eye to preserving any error for appeal. We cannot conclude that counsel’s comments occasioned the delay in question. We are of the opinion that we must presume the efficacy of contempt sanctions and disciplinary proceedings as a deterrent to counsel’s deliberate violation of an order of the trial court. We will not presume on the basis of counsel’s comments that counsel would have violated the court’s order. It would be a “mockery of justice” indeed to permit the State to evade defendant’s right to a speedy trial based on speculation that unlawful conduct might occur in the future. See People v. Fosdick (1967), 36 Ill. 2d 524, 529, 224 N.E.2d 242, 246.

Finally, the State suggests that the smallness of the county involved should be considered an excusing factor with respect to section 103 — 5. Section 103 — 5 does not provide for such an exception. Further, assuming that the county could not hold simultaneous jury trials, that situation was not “occasioned” by defendant. We conclude that the legislature did not intend to dilute an accused’s speedy trial right based on the size or resources of the county in question. In any event, it appears that with reasonably prompt disclosure by the State to Mr. Spiller of defendant’s statement, the county’s scheduling constraints could have been accommodated without delaying defendant’s trial unduly.

We note that defendant made supplemental disclosures to the State on May 23 and June 2, and requested a transcript of certain testimony from Mr. Spiller’s trial on June 17. We do not regard those matters as having any effect on the date of defendant’s trial. With respect to filings by defendant after May 27, we note that those filings would have been unnecessary had defendant been tried on May 27 as planned.

For the foregoing reasons, we conclude that the delay in question was not “occasioned” by defendant and will not excuse the State’s burden to try defendant in compliance with section 103 — 5. The trial court erred in denying defendant’s motion for discharge. The judgment of the circuit court of Williamson County is reversed.

Reversed.

JONES, J., concurs.

JUSTICE WELCH,

dissenting:

The issue addressed in this case is whether the delay between the granting of the State’s motion for severance and the defendant’s July 1980 trial may be attributable to the defendant. The majority is correct that a delay partially due to the actions of the defendant is chargeable to him (People v. Boyce (1977), 51 Ill. App. 3d 549, 366 N.E.2d 914), but the majority neglects to mention that the trial court’s decision to charge or not to charge that delay to the defendant should be upheld absent a clear abuse of discretion (People v. Cunningham (1979), 77 Ill. App. 3d 949, 396 N.E.2d 876; People v. Wilkins (1979), 77 Ill. App. 3d 179, 395 N.E.2d 1036).

The full exchange between defendant’s counsel and the court at the hearing at which the severance was granted was as follows:

“DEFENSE COUNSEL: Your Honor, the defendant, John Oakley is going to object to any rephrasing of the statement. If this statement is going to come in, we wish it to come in in its original, pristine form, both of them and we’re going to object to any rephrasing and inform the Court that if it comes in, in a redacted form, in cross-examination, we’re certainly going to bring out the gist of it. We fully intend to and will do so.
THE COURT: You intend then to bring out reference to John Spiller?
DEFENSE COUNSEL: Yes, sir.
THE COURT: And you will name him?
DEFENSE COUNSEL: Yes, sir.
THE COURT: You will? The Motion for Severance is granted.”

Before this hearing, the court intended to hold a joint trial of the defendant and Spiller, and direct that the defendant’s statement be redacted. After defense counsel’s emphatic demonstration of his intent to undermine any redaction, to the great prejudice of Spiller, the court felt that it had no choice but to sever the trials. Under these circumstances, I cannot say that the court clearly abused its discretion in finding that “the defendant’s acts in fact caused or contributed to the delay” due to the severance (People v. Fosdick (1967), 36 Ill. 2d 524, 529, 224 N.E.2d 242, 246), and therefore I must dissent from the decision of the majority.


author: JUSTICE WILSON

text:
      In re MARRIAGE OF MARIE T. WALSH, Petitioner-Appellee, and EDMUND P. WALSH, Respondent-Appellant.
    First District (5th Division)
    No. 81—2398
    Opinion filed September 10, 1982.

      Staehlin, Jantorni & Sullivan, of Chicago (John M. Sullivan and Susan L. Jantorni, of counsel), for appellant.
    Maureen J. McGann-Ryan, Ltd., of Chicago, for appellee.
   JUSTICE WILSON

delivered the opinion of the court:

This is an appeal from a bifurcated trial where the trial court entered its judgment for dissolution of marriage making specific findings as to the disposition of property, maintenance, educational expenses and attorney fees. Respondent presents these issues for review, that the trial court (1) abused its discretion in providing for the disposition of property; (2) abused its discretion in providing for maintenance for petitioner; (3) abused its discretion in providing for maintenance and educational expenses for two adult children; (4) abused its discretion in providing for the payment of attorney fees; and (5) abused its discretion in the totality of its judgment for dissolution of marriage. The pertinent facts follow.

The parties were married on January 29, 1949, and have five children. Only two are currently college students. Petitioner is 53 years of age and is currently employed as a part-time sales clerk earning approximately $11,000 gross per year. Respondent is 62 years of age and currently earning approximately $26,000 gross per year. Petitioner filed for divorce on January 25, 1979, and a judgment was entered by the trial court on October 10, 1980. The judgment provided that, pending further order of the court, exclusive possession of the marital residence would be awarded to petitioner, based upon a specific finding that her mental and physical well-being was endangered by respondent’s continued habitation in the residence.

On December 17, 1980, an order was entered setting the sum of $100 per week as unallocated child support and maintenance and further setting January 7, 1981, for a pretrial conference. No record of proceedings was transcribed on that day nor was there any record of proceedings transcribed on January 7, 1981. On February 11, 1981, petitioner filed a verified petition indicating the amount of temporary support was inadequate and requesting that respondent pay her one-half of his net income. The petition was entered and continued until March 6, 1981, at which time an order was entered requiring both parties to produce certain documents. However, no report of proceedings was made for that date. The matter was continued until May 13, 1981, at which time the report of proceedings indicated that the court advised them to produce a stipulation. The stipulation was submitted on or about May 20, 1981, along with a document listing the expenses of petitioner and children and an attorney’s affidavit in support of a request for attorney fees.

During the final in-chambers conference, the trial court directed that a judgment be drafted setting forth the terms of its ruling which was entered on July 8, 1981. Respondent filed a timely post-trial motion requesting a rehearing or modification of the judgment. On September 14, 1981, the court heard argument on this motion and denied it. The judgment in pertinent part provides that:

Support and Maintenance

(1) Respondent is to pay petitioner $550 per month retroactive to October 10, 1980, as unallocated family support payments for petitioner and the parties’ minor daughter, Margaret. An arrearage of $900 shall be paid instanter.

(2) After September 1, 1981, respondent is to pay petitioner the sum of $400 per month maintenance, terminated only by the death or remarriage of petitioner.

Educational Expenses and Maintenance

(1) Respondent is to pay 75% of the college education expenses for Maureen and Margaret, including tuition, room, board, books, fees and cost of three round-trips between college and home per year.

(2) Respondent shall be solely responsible for all extraordinary medical and dental expenses for Margaret and Maureen until they graduate from college, and shall maintain major medical and hospitalization insurance coverage for them.

(3) Respondent shall pay current dental bill of $140 for Margaret and Maureen.

(4) Respondent shall maintain a total face amount of $15,000 in life insurance for minor [sic] children while they are in college, naming them as irrevocable beneficiaries of one-half the proceeds.

Disposition of Property

A. Personal Property

(1) Petitioner is awarded all furniture and furnishings in the marital home. (No valuation given.)

(2) Petitioner is awarded a 1980 Chevrolet and respondent is awarded a 1978 Ford. (No valuation given.)

(3) Each party is awarded his respective retirement plan, and respondent is awarded his IRA account of approximately $11,000.

(4) Petitioner is awarded a bank account at First National Bank of Chicago with a balance of $5,648, and respondent is awarded a bank account at the First National Bank of Lincolnwood with a balance of $1,570 which he owns with his sister.

(5) Shares of stock having an aggregate approximate value of $1,240 are to be divided equally between the parties.

(6) Respondent is to name petitioner as irrevocable beneficiary under life insurance in the total face amount of $15,000 for one-half the proceeds while the children are in college and for all of the proceeds thereafter, and respondent may not borrow against the policy.

B. Real Property

(1) Exclusive possession of the marital home (valued at $95,000) is awarded to petitioner until June 1, 1986. Thereafter, the home is to be sold, and the net proceeds are to be divided 60% to petitioner and 40% to respondent. The home is unencumbered.

(2) Until the real estate is sold, respondent is to pay 40% of all real estate taxes, special assessments, homeowner’s insurance and extraordinary maintenance and repairs.

C. Nomnarital Property

(1) Respondent is assigned his nonmarital property which he inherited consisting of a one-half interest in a two-flat building having a full value of $80,000 and a 1940 Ford automobile. (No valuation given.)

Attorney Fees

(1) One thousand six hundred fifty shares (1,650) of United Group stock, having a value of $9.50 per share, owned by the parties jointly are to be sold, and the proceeds are to be delivered to petitioner’s attorney. Twelve thousand dollars ($12,000) of the proceeds is to be paid to petitioner’s counsel for attorney’s fee, and the balance to respondent’s counsel as attorney fees. The parties are solely responsible for the balance of any other fees which may be due their respective attorneys.

Opinion

Respondent argues that the trial court abused its discretion in apportioning the disposition of property, in contravention of the factors set forth in section 503 of the Illinois Marriage and Dissolution of Marriage Act, hereinafter referred to as the “Act” (111. Rev. Stat. 1981, ch. 40, par. 503). Specifically, he contends that the trial court did not have evidence of the valuation of the exclusive possession of the marital home for five years, the current values of the pension plans and IRA account, the values of the automobiles, and the value of furniture and furnishings. Petitioner has argued that respondent did not request an evidentiary hearing on the issues of property, maintenance and support, and thus he waived these issues.

The Act requires that a trial court divide the marital property between the spouses in “just proportion” without regard to fault. In order to apportion marital assets under section 503, the proper value of such assets must be established. (In re Marriage of Donley (1980), 83 Ill. App. 3d 367, 403 N.E.2d 1337.) Where evidence in the record is lacking as to proper valuation, then there is no basis upon which a reviewing court can determine the propriety of a trial court’s award of marital property. (In re Marriage of Boone (1980), 86 Ill. App. 3d 250, 408 N.E.2d 96.) Further, failure to offer evidence on the value of such assets does not waive respondent’s right to appeal on this issue. (See In re Marriage of Kundit (1982), 107 Ill. App. 3d 310, 437 N.E.2d 777.) Thus, absent sufficient evidence of the present value of these assets, an award of interest in such assets is inappropriate under section 503. In re Marriage of Evans (1981), 85 Ill. 2d 523, 426 N.E.2d 854; In re Marriage of Kundit.

Accordingly, we must remand this cause to the trial court for the purpose of receiving evidence concerning the marital assets in question and then to apportion them in equitable proportions. We point out that the trial court should consider but need not make specific findings as to each of the 10 factors in making the disposition of marital property and the assignment of nonmarital property. (In re Marriage of Lipsch (1980), 86 Ill. App. 3d 81, 407 N.E.2d 1028.) Nor does section 503 of the Act mandate a 50-50 division of property. In re Marriage of Stallings (1979), 75 Ill. App. 3d 96, 393 N.E.2d 1065.

The related issues of maintenance to petitioner and the minor child and the payment of educational expenses are directly affected by the final property disposition since these awards are substantially dependent upon the financial resources of the parties, including marital property. (Ill. Rev. Stat. 1981, ch. 40, pars. 504(b)(1), 505(a)(2), 508(a), 513.) As such the maintenance and support awards should be reevaluated by the trial court so that it may properly consider any changes required in the disposition of such property. In re Marriage of Kundit.

Lastly, respondent argues that the trial court abused its discretion in providing for payment of attorney fees to petitioner’s attorney and to his attorney, in contravention of section 508 of the Act. The judgment provided that 1,650 shares of United Group Corporation stock are to be sold, of which $12,000 of the proceeds is to be paid to petitioner’s attorney and the balance paid to respondent’s attorney. The parties were each to be responsible for any fees over and above this amount. Specifically, respondent contends that the court abused its discretion in ordering the sale of this stock for payment of attorney fees, and moreover, the award is unreasonable and excessive, ordered without the benefit of notice and hearing.

Section 508(a) of the Act authorizes the court to provide for reasonable attorney fees after considering the financial resources of the parties and after due notice and hearing. Since we are remanding the property issue for reconsideration, of necessity this issue must be reevaluated. However, the real concern in this issue is the propriety of the court’s order directing that stock, a marital asset, be sold in order to directly satisfy the payment of fees.

We have reviewed this paragraph and the Historical and Practice Notes following (Ill. Ann. Stat., ch. 40, par. 508, Historical and Practice Notes, at 635-40 (Smith-Hurd 1980)), and find no such authority. Subsection (c) of this paragraph empowers the court to order that fees and costs be paid directly to the attorney, who may then enforce such order in his own name. It does not empower the court to order an asset sold for the direct payment of fees. This stock should have been apportioned by the court under section 503(c).

Furthermore, it was error for the court to award fees to respondent’s attorney, who did not file a petition for fees in accordance with section 508(a), requesting that the court award him fees for services.

For the foregoing reasons, we reverse and remand this matter to the trial court for the purpose of receiving evidence concerning the value of the marital assets and then to apportion them, to reconsider the issue of reasonable attorney fees, and for such other proceedings consistent with this opinion.

Reversed and remanded.

SULLIVAN, P. J., and MEJDA, J., concur.


author: JUSTICE MEJDA

text:
    FIRST NATIONAL BANK OF EVERGREEN PARK, Plaintiff-Appellee, v. KENNETH LAMBERT, Indiv. and d/b/a MF3, Defendant-Appellant.
    First District (5th Division)
    No. 81—1694
    Opinion filed September 10, 1982.

      Gordon James Arnett, of Chicago, for appellant.
    Ozinga, Lepore & Campbell, of Evergreen Park (Bernard F. Lord, of counsel), for appellee.
   JUSTICE MEJDA

delivered the opinion of the court:

Plaintiff instituted this action to recover an alleged overdraft balance of the defendant’s sole proprietorship checking account. The court granted plaintiff’s second motion for summary judgment and further denied defendant’s motion to reconsider that ruling. Defendant appeals from the court’s denial of his motion to reconsider. Plaintiff raises two issues on appeal: (1) whether the court can twice entertain a motion for summary judgment; and (2) whether the court properly granted defendant’s motion. We affirm.

On February 25, 1980, plaintiff filed a two-count complaint against defendant. Count I alleged that plaintiff is a national banking association doing general banking business in Evergreen Park. Prior to and including December 14, 1979, defendant had a sole proprietorship checking account at the bank under the name of MF3. On December 14, 1979, the Internal Revenue Service served a tax levy on plaintiff for any and all of defendant’s assets. A copy of the tax levy was attached to and incorporated into the complaint. Count I further alleged that at the time of the tax levy defendant’s account had a balance in excess of $4,000. The bank called defendant to notify him that his account was being debited because of the tax levy. Upon receiving this notification defendant withdrew $4,400 from the account before the plaintiff had a chance to post the debit to defendant’s account. Therefore, when plaintiff subsequently posted the debit, an overdraft in the amount of $3,699.32 was created. Count II realleged the allegations of count I and further alleged that at the time defendant withdrew the $4,400 from his account he had received notice of the tax levy and knew that he would not have the funds to cover the checks. Plaintiff further alleged that defendant intended to and succeeded in deceiving plaintiff into believing that defendant had sufficient funds in his account to cover the checks and that plaintiff’s teller believed and relied on the plaintiff’s fraudulent representation to plaintiff’s detriment in the amount of $3,699.32. The complaint demanded judgment against defendant individually and doing business as MF3 for $3,699.32, interest and costs. No answer to plaintiff’s complaint has been included in the record.

On July 21, 1980, plaintiff moved for summary judgment. On August 12, 1980, Judge Joseph A. Salerno denied the motion. On August 26, 1980, Judge Salerno vacated the order denying plaintiff’s motion due to possible judicial prejudice caused by his review of a “Bystander’s Report” which had been improperly included in the court’s file. The “Bystander’s Report” was ordered quashed from the record and the case transferred to the presiding judge for reassignment. Plaintiff renewed his motion for summary judgment before Judge James L. Harris, presenting the affidavit of Kenneth A. Siam, one of its officers, a memorandum of law and certain exhibits in support of the motion.

In his affidavit Siam stated that he is the administrative assistant employed by plaintiff with responsibility over garnishments and tax levies. At 2:15 p.m. on December 14, 1979, plaintiff received a notice of levy from the Internal Revenue Service for one “*** Kenneth R. Lambert, whose address was listed as 10217 S. Kenneth, Oak Lawn, Illinois "***.” The levy directed plaintiff to turn over all of Lambert’s funds in plaintiff’s possession to the Internal Revenue Service. Plaintiff checked its records for any assets held in favor of “Kenneth Lambert” but found none and so notified the Internal Revenue Service. Upon receipt of the notice, the Internal Revenue Service immediately called and advised Stam that defendant had a sole proprietorship account under the name of “MF3.” Plaintiff checked its records again and found $4,482.53 deposited under the name “MF3.” These funds were debited from defendant’s account on December 21, 1979. Stam called the phone number listed on the signature card of the “MF3” account to advise defendant of the debit. Stam informed the woman who answered of the circumstances surrounding the debit to his account. Defendant immediately came into the bank on December 21, 1979, and wrote two checks payable to “Cash” totaling $4,400 and presented them to a bank officer for approval. Because the officer knew defendant to be a customer of the bank, he approved the checks without checking the computer terminal. The plaintiff then cashed defendant’s checks. Because the funds in the account were debited due to the aforesaid tax levy, an overdraft was created on defendant’s account. A check for $3,699.32 was sent to the Internal Revenue Service, as that was the balance in the “MF3” account when the notice of levy was served on plaintiff. Numerous demands were made upon defendant to repay the overdrawn balance but he failed to do so.

Defendant answered Siam’s affidavit and filed a counteraffidavit. Judge Harris found that defendant’s answer to affidavit and counteraffidavit failed to comply with the applicable supreme court rules and granted plaintiff’s motion for summary judgment. Defendant subsequently moved to have the court reconsider the summary judgment order entered. After considering the arguments of counsel and memoranda submitted in connection with defendant’s motion to reconsider, the court denied the motion. Defendant appeals from the order denying his motion to reconsider.

Opinion

Defendant first contends that the trial court erred in granting summary judgment because the court cannot twice entertain a motion for summary judgment. Defendant argues that the initial denial of the motion demonstrates that a genuine issue of fact existed. Defendant’s contention is without merit. In the instant case the initial order denying summary judgment was vacated. When an order is set aside in due time, it leaves the pleadings as if no order had ever been entered. (Talley v. Alton Box Board Co. (1962), 37 Ill. App. 2d 137, 185 N.E.2d 349; Mitchell v. Joseph (7th Cir. 1941), 117 F.2d 253.) Therefore, the initial motion for summary judgment here remained pending and not determined. Furthermore, the mere denial of a motion for summary judgment is not sufficient of itself to create a triable issue in a case. (Van Schaack v. Moody (1971), 3 Ill. App. 3d 43, 278 N.E.2d 145.) The denial of a summary judgment motion is in the nature of an interlocutory order which may be amended or revised at any time before a final judgment. (See Towns v. Yellow Cab Co. (1978), 73 Ill. 2d 113, 382 N.E.2d 1217.) A party may renew his summary judgment motion even though it has been denied by another judge, and the second judge hearing the renewed motion may review and modify the first judge’s interlocutory order. (See Towns.) Therefore, it was not error in the instant case for Judge Harris to consider and determine the motion for summary judgment.

Defendant next contends that summary judgment for plaintiff was improperly granted because material disputed facts remain as to whether defendant had knowledge of the tax levy at the time he cashed the checks, whether defendant’s account had sufficient funds as of the time he cashed his checks, and whether the checks were cashed with the authority of the bank officers. The plaintiff counters that no material issues of fact remain and that summary judgment was properly entered, relying on section 4 — 401(1) of the Uniform Commercial Code (Ill. Rev. Stat. 1979, ch. 26, par. 4 — 401(1)).

Summary judgment will be granted if the pleadings, depositions, admissions, exhibits and affidavits on file reveal that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. (Carruthers v. B.C. Christopher & Co. (1974), 57 Ill. 2d 376, 313 N.E.2d 457.) To defeat a motion for summary judgment, factual issues which are disputed must be material to the essential elements of the cause of action or defense, and those which are unrelated, regardless of how sharply controverted, do not warrant denial of summary judgment if otherwise proper. Schultz v. American National Bank & Trust Co. (1976), 40 Ill. App. 3d 800, 352 N.E.2d 310.

We find no merit to defendant’s contention that disputed material facts remained precluding summary judgment. There is no dispute that defendant’s checks were cashed with the authority of the bank’s officers as Siam’s affidavit stated that a bank officer had approved defendant’s checks for payment. Siam’s affidavit and attached exhibits established that because of the tax levy insufficient funds were in defendant’s account to cover the checks he cashed creating an overdraft. No dispute is raised as to this fact by defendant’s answer to affidavit or counteraffidavit because the trial court found they failed to comply with the applicable supreme court rules and did not consider them. On appeal defendant has not challenged that determination and it is not an issue before us. (See Village of Crainville v. Argonaut Insurance Co. (1980), 81 Ill. 2d 399, 410 N.E.2d 5.) Therefore any error in the court’s determination of their insufficiency has been waived (87 Ill. 2d R. 341(e)(7)), and we presume that the trial court correctly struck the defendant’s answer to affidavit and counteraffidavit and do not consider them in making our determination of the propriety of summary judgment here.

Finally, we conclude that whether or not defendant had knowledge of the tax levy at the time he cashed his checks is a fact immaterial to the central issue — whether the bank can recover the funds paid to defendant even though the payment created an overdraft in defendant’s account.

Having concluded that no material issues of fact remain, we consider whether the court erred in entering summary judgment for plaintiff.

At the time plaintiff presented his checks to be cashed, his account had been debited because of the Federal tax levy (see I.R.C. secs. 6331, 6332). Plaintiff honored his two checks even though an overdraft was created. Section 4 — 401(1) of the Uniform Commercial Code (Ill. Rev. Stat. 1979, ch. 26, par. 4 — 401(1)) provides that “(1) As against its customer, a bank may charge against his account any item which is otherwise properly payable from that account even though the charge creates an overdraft.” This provision as to overdrafts adopts the rule of Thomas v. International Bank (1892), 46 Ill. App. 461, in which the court held that a check on a bank, where the drawer keeps an account, implies a promise by the drawer to reimburse the bank honoring the overdraft. Ill. Ann. Stat., ch. 26, par. 4— 401(1), Illinois Code Comment, at 527 (Smith-Hurd 1963).

There is nothing in the record which indicates that defendant’s checks were not “otherwise properly payable” and defendant has not so contended on appeal. Defendant has only argued that as the funds had already been levied, the bank was negligent in mistakenly allowing the overdraft to be created by cashing his checks. We find no merit in defendant’s argument. As it is undisputed in the case at bar that except for creating an overdraft these checks were properly payable, plaintiff is entitled to recover the amount of the overdraft created.

The judgment of the trial court denying defendant’s motion to reconsider the entry of summary judgment is affirmed.

Affirmed.

SULLIVAN, P. J., and WILSON, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RUDY MORALES, Defendant-Appellant.
    First District (5th Division)
    No. 81—306
    Opinion filed September 10, 1982.

      James J. Doherty, Public Defender, of Chicago (Judith A. Stewart and Donald I. Singer, Assistant Public Defenders, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, David Shapiro, and Sheila M. King, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE MEJDA

delivered the opinion of the court:

Defendant was convicted of possession of a controlled substance (heroin) after a jury trial and was sentenced to a term of three years’ imprisonment. Defendant appeals his conviction presenting the following issues for review: (1) whether the warrantless search of the undercarriage of his parked automobile violated the Fourth Amendment; (2) whether the warrantless search of a closed jar seized from beneath his car violated the Fourth Amendment; and (3) whether the trial court erred by excluding an alibi witness on the ground that such witness was not disclosed in defendant’s answer to the State’s request for discovery. We affirm.

On January 22, 1979, at approximately 7:40 p.m., Officer Martin Conroy and Sergeant John Zitek of the Chicago Police Department received information from an informer, Oscar Alvarado, that defendant had just sold him a quantity of heroin. Both officers were in plainclothes and in an unmarked squad car. They proceeded to the 600 block of West 18th Street where they parked in a lot under an expressway overpass in a position to establish surveillance of a parked 1979 burgundy colored Ford Thunderbird auto at about 722 West 18th Street, and of the defendant, who was also on 18th Street standing near the northeast comer of Halsted Street.

For the next 45 minutes, the two police officers observed defendant from a distance of about one block. Sergeant Zitek’s observations were made with the assistance of binoculars. Both officers testified that they observed defendant engage in conversation with an unknown individual, then walk alone to the corner of the parked Thunderbird, kneel down on the street at the rear of the auto and reach underneath the car. The defendant then walked back to the unknown individual with whom he was previously engaged in conversation, and there was an exchange of hands between them. This ritual was repeated several more times with either five, six or seven other individuals over the 45-minute period of observation. On each occasion, according to the officers’ testimony, while there was an exchange of hands, the officers could not see what, if anything was exchanged or what was in defendant’s hands or the hands of the individuals with whom defendant met. The officers also testified that they could not see what, if anything, was under the car.

At about 8:50 p.m. the two officers ended their surveillance and drove over to the parked Ford Thunderbird. At the time he was stopped by police, defendant was standing about six feet from that automobile, on the passenger or curb side and towards the rear of the auto. The defendant was searched by Officer Conroy and then by Sergeant Zitek. As Sergeant Zitek stood between defendant and Officer Conroy, Conroy knelt down on the street behind the Thunderbird, looked under the rear bumper, and saw a glass baby food bottle or jar attached to the underside of the auto with a wire. He untied the wire and took possession of the baby food jar. Sergeant Zitek testified that he did not see the bottle until it was brought out from under the car by Officer Conroy. Officer Conroy unlocked the auto with keys taken from the defendant, searched the car, locked up the vehicle and returned the car keys to defendant.

The officers proceeded to central police headquarters with defendant and the baby food jar. The jar was secured by a screw-on type cap. Through the jar a number of multicolored balloons could be seen. Officer Conroy opened the jar, opened a balloon, opened a tin foil packet, and tested its powder contents. The test indicated the presence of heroin, as did subsequent tests performed 45 days later by a Chicago Police Department chemist. A search warrant was not obtained at any time prior to the opening of the jar, the balloons, and the foil packets. At the preliminary hearing, defendant’s motion to suppress was denied.

At trial the only witnesses offering testimony were Officer Conroy, Sergeant Zitek, the police chemist, and defendant. After the State had completed examination of its first witness, Officer Conroy, defendant moved to amend his answer to discovery to add the name of Viola Medillan to his list of witnesses. A hearing on the motion was held outside the presence of the jury. At that hearing defendant testified that he had not, prior to that day, advised his counsel of Ms. Medillan’s existence or the import of her testimony. Defendant’s motion was denied.

Opinion

Defendant contends that the warrantless search of his parked automobile was unconstitutional on several grounds. Initially defendant urges reversal on the “search incident to arrest” theory contending that the search of the undercarriage of his automobile improperly extended beyond defendant’s person and the area within his immediate control. Chimel v. California (1969), 395 U.S. 752, 23 L. Ed. 2d 685, 89 S. Ct. 2034; People v. Hendrix (1974), 25 Ill. App. 3d 339, 323 N.E.2d 505.

We find the “search incident to arrest” theory unavailing under the facts and circumstances presented here. Unlike the situations addressed in Chimel, Hendrix and like cases, the police activity here was supported by probable cause. The police officers, operating on an informant’s tip, observed defendant for some 45 minutes from a distance of one block. During this period defendant was observed kneeling and reaching underneath the rear of the vehicle, and then exchanging hands with another individual, repeating this ritual at least five times. On such facts the police officers could have reasonably believed that defendant was in possession of contraband and that such contraband was concealed in the undercarriage of the vehicle. Since the instant search was premised on probable cause, and not merely “incident” to the arrest, we think that the more important question before us is whether the warrantless search was justified under the “automobile exception” to the fourth amendment’s warrant requirement as established in Carroll v. United States (1925), 267 U.S. 132, 69 L. Ed. 543, 45 S. Ct. 227.

Defendant argues that the warrantless search of the closed containers (sealed baby food jar, balloons, and tin foil wrappers) exceeded the permissible scope of a search under the “automobile exception” as limited in the recent United States Supreme Court decisions in United States v. Chadwick (1977), 433 U.S. 1, 53 L. Ed. 2d 538, 97 S. Ct. 2476, Arkansas v. Sanders (1979), 442 U.S. 753, 61 L. Ed. 2d 235, 99 S. Ct. 2586, and Robbins v. California (1981), 453 U.S. 420, 69 L. Ed. 2d 744, 101 S. Ct. 2841. It is defendant’s contention that since the secreted contraband was enclosed within three distinct containers, such containers could not be opened without a warrant under these cases.

Subsequent to the filing of the briefs in this court, and prior to oral argument, the United States Supreme Court filed its opinion in the case of United States v. Ross (1982), 456 U.S. 798, 72 L. Ed. 2d 572, 102 S. Ct. 2157. We believe that this case is dispositive of the defendant’s argument here.

In Ross, police officers, acting on information from an informant that the defendant was selling narcotics kept in the trunk of a certain car parked in a certain location, drove to the location, found the car and a short while later stopped the car and arrested the defendant. One of the officers then opened the car’s trunk and found a closed brown paper bag. After opening the bag he found several glassine bags containing white powder, later determined to be heroin. Also found was a zippered pouch containing cash. No warrant was obtained before opening these containers. In ruling that the warrantless search of the containers was justified, the Supreme Court departed somewhat from the line of reasoning in Chadwick, Sanders and Robbins. In an attempt at further “clarifying” the “automobile exception,” the court stated that the scope of a warrantless search of an automobile “is not defined by the nature of the container in which the contraband is secreted. Rather, it is defined by the object of the search and the places in which there is probable cause to believe that it may be found.” (456 U.S. 798, 824, 72 L. Ed. 2d 572, 593, 102 S. Ct. 2157, 2172.) Thus, the Ross court held that the scope of a warrantless search, authorized by the automobile exception recognized in Carroll “is no broader and no narrower than a magistrate could legitimately authorize by warrant. If probable cause justifies the search.of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search.” 456 U.S. 798, 825, 72 L. Ed. 2d 572, 594, 102 S. Ct. 2157, 2172.

In the instant case we have held that the search of the undercarriage of defendant’s parked car was justified by probable cause. Thus, applying the Ross interpretation of the fourth amendment, we believe that the police officers were justified in probing into the glass jar and the containers enclosed therein in their search for the contraband.

It is noted that defendant has urged in oral argument that Ross is inapplicable to the situation at bar essentially on two grounds. First, it is suggested, without citation to authority, that the automobile exception recognized in Carroll and Ross does not apply where an automobile was not “stopped” by police officers, but rather was stationary prior to the search. This distinction is without merit. The fact that the car in Ross was seized after being driven on the roadway, whereas defendant’s car was seized while parked in a public place, has little, if any, significance in terms of the fourth amendment. (See, e.g., Cardwell v. Lewis (1974), 417 U.S. 583, 41 L. Ed. 2d 325, 94 S. Ct. 2464 (seizure in a public parking lot held reasonable); Cady v. Dombrowski (1973), 413 U.S. 433, 37 L. Ed. 2d 706, 93 S. Ct. 2523 (seizure of car disabled on roadway held reasonable); People v. Davis (1981), 93 Ill. App. 3d 217, 416 N.E.2d 1197 (seizure in public place held reasonable); but cf. Coolidge v. New Hampshire (1971), 403 U.S. 443, 29 L. Ed. 2d 564, 91 S. Ct. 2022 (seizure on private properly held not reasonable).) Here the facts furnishing probable cause to search the automobile arose while the vehicle was in defendant’s possession while parked on a public roadway. It would certainly be an exercise in futility to require the police to wait until defendant had moved his automobile some distance before conducting a search otherwise reasonable based on the “automobile exception.” We find that the crucial facts in Ross are similar to those in the present case. Both in Ross and in the present case the searches of the automobiles were based on probable cause to believe the cars were instrumentalities used in crimes and that contraband was concealed somewhere therein. Accordingly, we do not find Ross distinguishable from the present situation on the grounds suggested by defendant.

Next defendant has contended that Ross cannot be applied retroactively to the present case. This contention is dispelled by the Ross court’s expression that its holding is “faithful to the interpretation of the Fourth Amendment” followed by the Supreme Court throughout its history. (456 U.S. 798, 824, 72 L. Ed. 2d 572, 593, 102 S. Ct. 2157, 2172.) Moreover, the court interestingly noted that “[a]ny interest in maintaining the status quo that might be asserted by persons who may have structured their business of distributing narcotics or other illicit substances on the basis of judicial precedents clearly would not be legitimate.” (456 U.S. 798, 824 n.33, 72 L. Ed. 2d 572, 593 n.33, 102 S. Ct. 2157, 2172 n.33.) Suffice it to say we deem Ross to be applicable to the case at bar.

Finally, defendant contends that the trial court committed reversible error in excluding a defense alibi witness on the grounds that the witness’ name had not been submitted to the State in response to discovery as required under Supreme Court Rule 413(d)(1) (73 Ill. 2d R. 413(d)(i)).

It is within the trial court’s discretion to admit testimony of unlisted witnesses (People v. Banks (1981), 102 Ill. App. 3d 877, 430 N.E.2d 602; People v. DeLeon (1976), 40 Ill. App. 3d 308, 352 N.E.2d 234), and the exercise of that discretion will not be disturbed absent a showing by the accused of resulting prejudice or surprise. (People v. Jordan (1967), 38 Ill. 2d 83, 230 N.E.2d 161; Banks; DeLeon) Under the circumstances herein presented the defendant has failed to establish that he was prejudiced in any manner by the exclusion of Viola Medillan as a witness.

Defendant testified that during the period of time that the police officers observed him, he was in a tavern in the company of Medillan. Although no offer of proof was made, Medillan’s testimony would have been relevant to the issue of the credibility of the police officer’s observations" during the time in question. Defendant, however, was found guilty of possession of a controlled substance, not its sale during this time. It is not contested that defendant was arrested within six feet of his automobile or that the heroin was found by the officers secreted beneath the car. In the instant case we believe there was overwhelming evidence of defendant’s guilt of possession of heroin. Thus assuming the trial court erred in excluding the witness, we do not find sufficient grounds here for reversal.

For the foregoing reasons, we affirm defendant’s conviction.

Affirmed.

SULLIVAN, P. J., and WILSON, J., concur.

       Defendant here relies on a footnote to the dissenting opinion of Justice Marshall in Ross. (United States v. Ross (1982), 456 U.S. 798, 828 n.1, 72 L. Ed. 2d 572, 596 n.1, 102 S. Ct. 2157, 2174 n.1 (Marshall, J., dissenting).) There Justice Marshall commented that he felt that the Ross holding was confined to automobiles “stopped” on the highway. Justice Marshall stated “I do not understand the Court to address the applicability of the automobile exception rule announced today to parked cars. Cf. Coolidge v. New Hampshire, 403 U.S. 443 (1971).” Crucial to Coolidge, however, was that the seizure of the cars occurred on defendant’s private property and thus the cars were seized from a place where the police had no right to be. The importance of this factor was pointed out in Cardwell v. Lewis (1974), 417 U.S. 583, 593, 41 L. Ed. 2d 325, 336-37, 94 S. Ct. 2464, 2471. (See People v. Davis (1981), 93 Ill. App. 3d 217, 416 N.E.2d 1197.) Unlike the Coolidge situation, the defendant here was in possession of his car on a public roadway when the arrest was made, a situation, we feel, requiring no practical or legal distinction from the “stop” involved in Ross.


author: PRESIDING JUSTICE BARRY

text:
    UNARCO INDUSTRIES, INC., Plaintiff-Appellee, v. FREDERICK MANUFACTURING CO., INC., Defendant-Appellant.
    Third District
    No. 81-716
    Opinion filed September 14, 1982.

      James R. Morrison, of McConnell, Kennedy, Quinn & Johnston, of Peoria, for appellant.
    George D. Browning and John A. Kendrick, both of Westervelt, Johnson, Nicoll & Keller, of Peoria, for appellee.
   PRESIDING JUSTICE BARRY

delivered the opinion of the court:

Defendant Frederick Manufacturing Co., a foreign corporation, brings this interlocutory appeal from an order entered in the circuit court of Peoria County denying its motion to quash personal service of summons in Missouri.

Plaintiff manufactures radio towers at its plant in Peoria County, Illinois, and for the last 12 years has regularly purchased from defendant Frederick certain component parts called clevises. Plaintiff filed a suit in the circuit court of Peoria County alleging that in March of 1979 plaintiff issued to defendant a purchase order for 1600 “C” clevises and 1000 “D” clevises, specifying that the C and D clevises were to be manufactured from 1018 steel; that defendant shipped the C and D clevises to plaintiff in Peoria in April; that plaintiff thereafter sold these clevises to its customers to be used as a component part of towers to be erected; and that the clevises were not made from 1018 steel as specified but were made from 1215 steel and were not of sufficient strength to withstand the pressure placed on them as components of towers. The complaint contained three counts. Count I alleged that the clevises were unreasonably dangerous, that the towers into which they were incorporated were damaged because they were diminished in value, and that plaintiff was forced to recall all C and D clevises from its customers at substantial cost. Count II asserted a breach of implied warranty of merchantable quality, and count III asserted a breach of implied warranty that the clevises were fit for the particular purpose required by plaintiff. Plaintiff prayed for $626,877 in damages under each count.

After summons was served upon defendant’s vice-president in Jackson County, Missouri, defendant appeared specially in this cause and, pursuant to section 20 of the Civil Practice Act (111. Rev. Stat. 1981, ch. 110, par. 20), moved to quash the service of summons upon the grounds that defendant is not amenable to Illinois process. Defendant also filed affidavits from its president which indicated that the clevises in question were manufactured in Missouri; that defendant does no business in Illinois; that defendant’s principal and only place of business is in Kansas City, Missouri; the defendant has no facilities, employees or agents in Illinois; that defendant is not licensed or registered to do business in Illinois; that no officer, employee or agent of defendant went to Illinois either to negotiate the sale, or perform the contract, or for any other purpose; that defendant did nothing, in Illinois in connection with this transaction; that defendant received a purchase order at its office in Kansas City, Missouri, from plaintiff; that defendant delivered the clevises to plaintiff F.O.B. Kansas City, meaning of course that the clevises were delivered to plaintiff at Kansas City, not at Peoria; and that no representative of defendant has ever visited plaintiff’s facilities in Illinois for any reason. Business records furnished by plaintiff and defendant indicate that the business relationship between plaintiff and defendant originated with a letter of inquiry from plaintiff which defendant answered by mail with quotation of prices, delivery dates, etc. Thereafter, plaintiff regularly ordered clevises from defendant over a 12-year period prior to this action.

After hearing arguments of counsel, the trial court denied defendant’s motion to quash the summons, and then granted defendant’s motion to permit an interlocutory appeal pursuant to Supreme Court Rule 308 (73 Ill. 2d R. 308). The trial court certified the question on appeal as follows: “Is defendant subject to personal jurisdiction in Illinois in this case?” This court ultimately granted leave to appeal.

Defendant contends that it did not submit to the jurisdiction of Illinois courts under section 17 of the Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, par. 17), which provides:

“(1) Any person, whether or not a citizen or resident of this State, who in person or through an agent does any of the acts hereinafter enumerated, thereby submits such person, and, if an individual, his personal representative, to the jurisdiction of the courts of this State as to any cause of action arising from the doing of any of such acts:
(a) The transaction of any business within this State;
(b) The commission of a tortious act within this State ***.”

Although plaintiff’s complaint alleges that defendant was a Missouri corporation “doing business in the State of Illinois” as a jurisdictional fact, there are no allegations of any facts that would constitute the doing of business in Illinois. Defendant has had no employees, officers or agents in Illinois at any time in connection with this sale; it performed no acts in Illinois; it did not even advertise or solicit business in Illinois. This entire transaction originated with plaintiff, and the goods purchased were delivered to plaintiff in Missouri. A very similar case is that of Woodfield Ford, Inc. v. Akins Ford Corp. (1979), 77 Ill. App. 3d 343, 395 N.E.2d 1131, where a sale of cars by a Georgia dealer to an Illinois dealer did not bring the Georgia seller within the jurisdiction of the Illinois courts under the “long-arm statute.” In Woodfield the sale of cars was initiated by the plaintiff buyer both by telephone and personal visit to Georgia; defendant’s entire performance under the contract took place in Georgia; payment and delivery occurred in Georgia; and there were no contacts amounting to the conduct of business in Illinois. The court held that Illinois lacked personal jurisdiction of a breach of contract action under section 17(l)(a), noting that to hold otherwise would be to permit plaintiff to “lure” the nonresident defendant into the jurisdiction of Illinois. (Accord, Wood v. Moody-McMaster (1982), 107 Ill. App. 3d 116, 437 N.E.2d 373.) Only the acts of defendant can be considered in determining whether business was transacted in Illinois. (Servo Instruments, Inc. v. Fenway Machine Co. (1980), 92 Ill. App. 3d 509, 415 N.E.2d 34; Chicago Film Enterprises v. Jablanow (1977), 55 Ill. App. 3d 739, 371 N.E.2d 161.) We conclude,' therefore, that the defendant here did not submit to the jurisdiction of Illinois under subsection (a) of section 17(1).

Plaintiff insists that jurisdiction may also be had in this case under subsection (b) of the statute, which provides that a party submits to the jurisdiction of Illinois when it commits a tortious act in Illinois. This provision has been the subject of much judicial attention in recent years, beginning with the case of Gray v. American Radiator & Standard Sanitary Corp. (1961), 22 Ill. 2d 432, 176 N.E.2d 761, where an Illinois resident brought a negligence action for injuries received when a hot water heater exploded in Illinois. Defendant manufactured a safety valve in Ohio which was sold to another company which incorporated the valve into hot water heaters in Pennsylvania, and eventually the hot water heaters were sold to the consumer in Illinois. The court held that a tortious act is committed for purposes of jurisdiction where the last event takes place which is necessary to render the actor liable — i.e., the place of injury.

The rationale of the Gray decision was utilized in a recent product liability action, Connelly v. Uniroyal, Inc. (1979), 75 Ill. 2d 393, 389 N.E.2d 155, where a motorist brought suit in Illinois against a Belgian tire manufacturer and others for personal injuries incurred when a tire failed during use in Illinois. The court held that distribution in Illinois of the tire manufacturer’s products rendered the manufacturer amenable to process under section 17(1)(b). The court quoted Gray for the general proposition that it is not unjust to hold a corporation answerable in Illinois for damage caused by defects in its products where it elects to sell its products for ultimate use in Illinois.

Without extending our discussion of the principles involved, we believe it sufficient to say that defendant would be subject to Illinois jurisdiction for a tort action arising out of a defect in its products which are sold for use in Illinois. Plaintiff insists that count I of its complaint sets out a tort action framed in terms of product liability. To quote the complaint:

“8. That as a direct and proximate result of one or more of the aforementioned unreasonably dangerous conditions of the C and D clevises, the towers into which the C and D clevises were incorporated were damaged in that the towers were diminished in value by said incorporation ***.”

Plaintiff asserts as damages the cost of replacement material, freight, labor, engineering and administrative time, and the loss of good will and profits. All of these items amount to economic loss, not physical injury, and there is no allegation of any type of accident or damage to any person or other property.

The Illinois Supreme Court in Moorman Manufacturing Co. v. National Tank Co. (1982), 91 Ill. 2d 69, 435 N.E.2d 443, has held that economic losses caused by qualitative defects, where only the defective product itself is damaged, cannot be recovered under a theory of strict liability in tort or under any other tort theory. “Our conclusion that qualitative defects are best handled by contract, rather than tort, law applies whether the tort theory involved is strict liability or negligence. Tort theory is appropriately suited for personal injury or property damage resulting from a sudden or dangerous occurrence ***. The remedy for economic loss, loss relating to a purchaser’s disappointed expectations due to deterioration, internal breakdown or non-accidental cause, on the other hand, lies in contract.” 91 Ill. 2d 69, 86, 435 N.E.2d 443, 450.

Moorman is perhaps an extension of the ruling in Green v. Advance Ross Electronics Corp. (1981), 86 Ill. 2d 431, 427 N.E.2d 847, which denied personal jurisdiction under section 17(1)(b) for misconduct occurring outside Illinois which caused a financial loss to plaintiff residing in Illinois. (In Green the tortious acts complained of involved the misappropriation of funds in Texas which had as a consequence the reduction of corporate assets in Illinois. The court stated that the injury was complete in Texas.)

In view of the Moorman decision, it is clear that the complaint in this case does not allege the commission of any tortious act within the meaning of section 17(l)(b). In Mroczynski v. McGrath (1966), 34 Ill. 2d 451, 216 N.E.2d 137, the supreme court construed that “tortious act” as used in this section to mean an act leading to recovery in tort. Since there is no proposed recovery in tort in this action for the economic loss incurred by plaintiff as a result of the alleged manufacturing defects in the clevises, then there was no “tortious act” by defendant occurring in Illinois and it follows that defendant is not amenable to Illinois jurisdiction.

Accordingly, the summons served upon defendant in Missouri should be quashed. We reverse the order of the circuit court of Peoria County, remand the cause, and direct that defendant’s motion be granted.

Reversed and remanded with directions.

STOUDER and HEIPLE, JJ., concur.


author: JUSTICE NASH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES TEDFORD, Defendant-Appellant.
    Second District
    No. 81—561
    Opinion filed September 14, 1982.
    Robert Morrow, State’s Attorney, of Geneva (Phyllis J. Perko, of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE NASH

delivered the opinion of the court:

Defendant, James Tedford, appeals from an order of the circuit court of Kane County committing him to the Department of Mental Health for a period of 24 years after his acquittal of murder by reason of insanity. He contends the trial court erred in determining his maximum period of involuntary confinement.

Defendant was charged with murder on November 23, 1977; he was subsequently found unfit to stand trial and placed in custody of the Department of Mental Health. After psychiatric evaluation, the State stipulated that defendant was psychotic at the time of the offense and on February 21, 1980, a judgment was entered finding him not guilty by reason of insanity. On July 16, 1981, the trial court fixed defendant’s maximum term of involuntary commitment at 24 years in the custody of the Department of Mental Health.

Defendant asserts the trial court erred in determining the period of commitment by failing to allow him to elect to have his maximum term of involuntary commitment fixed with reference to the indeterminate sentencing scheme in effect at the time of the offense (Ill. Rev. Stat. 1977, ch. 38, par. 1005 — 8—1(b)(1)). The State agrees that defendant had such an election and confesses error. We concur.

A defendant acquitted by reason of insanity is subject to involuntary commitment pursuant to section 5 — 2—4(b) of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 2—4(b)), which is identical in relevant part to that in effect at the time of the offense in this case. (Ill. Rev. Stat. 1977, ch. 38, par. 1005 — 2—4(b).) This provision provides that:

“[T]he initial order for admission of a defendant acquitted of a felony by reason of insanity shall be for an indefinite period of time; provided, however, that such period of commitment shall not exceed the maximum length of time that the defendant would have been required to serve, less credit for good behavior, before becoming eligible for parole had he been convicted of and received the maximum sentence for the most serious crime for which he has been acquitted by reason of insanity.”

Under the statute, the period of commitment may not exceed the term of the most punitive sanction which could have been imposed upon conviction for the most serious crime charged, less credit for good behavior. While the time of involuntary commitment is indefinite, the maximum period is limited by reference to the relevant sentencing scheme. The maximum term for murder at the time of the offense in this case was any term in excess of 14 years (Ill. Rev. Stat. 1977, ch. 38, par. 1005 — 8—1(b)(1)), less good time credit to be deducted pursuant to administrative regulation of the Department of Corrections. The sentencing provision in effect at the time of the commitment hearing provided for a term of not less than 20 nor more than 40 years (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 8—1(a)(1)(a)) with good time credit for diminution of sentence to be computed on a day for day basis pursuant to section 3 — 6—3(a) (Ill. Rev. Stat. 1979, ch. 38, par. 1003 — 6—3(a)). To determine which provision is applicable in a given case, section 8 — 2—4(b) of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1008 — 2—4(b)) provides in relevant part:

“If the defendant has not been sentenced before the effective date of this amendatory Act of 1977, he shall have the right to elect to be sentenced under the law as it existed at the time of his offense or under the law in effect on and after the effective date of this amendatory Act of 1977.”

The trial court erred in not allowing defendant to elect to be committed to an indefinite period of involuntary confinement under the sentencing scheme in effect at the time of the offense. (People v. Tanzy (1982), 108 Ill. App. 3d 59; People v. Thiem (1980), 82 Ill. App. 3d 956, 962, 403 N.E.2d 647, 652.) In tills case, that would have resulted in defendant’s parole eligibility in 11 years and 3 months, regardless of the maximum sentence imposed for the offense of murder, and the period of commitment may not exceed that time.

We note that while defendant has not been “sentenced” as such, commitment in these circumstances is involuntary, quasi-criminal in nature and results in a period of “criminal” commitment. (Raimondo v. Pavkovic (1982), 107 Ill. App. 3d 226, 230, 437 N.E.2d 712, 715.) In such circumstances defendant was entitled to an election. People v. Tanzy (1982), 108 Ill. App. 3d 59; People v. Thiem (1980), 82 Ill. App. 3d 956, 962, 403 N.E.2d 647, 652.

Accordingly, that portion of the trial court’s order subjecting defendant to a maximum commitment of 24 years is vacated and he is committed to the Department of Mental Health for an indefinite period not to exceed 11 years, 3 months. The order of commitment is so modified.

Judgment vacated in part, modified and affirmed.

REINHARD and VAN DEUSEN, JJ., concur.