author: JUSTICE SCOTT PRESIDING JUSTICE HEIPLE,

text:
    JACK BRADLEY, INC., Plaintiff-Appellee, v. THE DEPARTMENT OF EMPLOYMENT SECURITY et al., Defendants-Appellants.
    Third District
    No. 3 — 89—0613
    Opinion filed October 23, 1990.

      HEIPLE, P.J., dissenting.

      Neil F. Hartigan, Attorney General, of Springfield (Linda J. Hay and Jennifer Keller,. Assistant Attorneys General, of Chicago, of counsel), for appellant.
    Edmonds & Laukitis, Ltd., of Chillicothe (Richard V. Laukitis, of counsel), for appellee.
   JUSTICE SCOTT

delivered the opinion of the court:

Defendants, the Illinois Department of Employment Security (IDES) and Sally A. Ward, Director of Employment Security (Director), appeal from a circuit court decision reversing a determination made by the Director that plaintiff, Jack Bradley, Inc. (Bradley), owes IDES $13,898.16 plus interest in unpaid unemployment contributions.

Bradley, located in Chillicothe, Illinois, is engaged in the business of advertising and public relations. One of Bradley’s regular activities is that of intermediary between people who work as “food demonstrators” and food vendors and retailers that require their services.

At issue in this case is the status of these demonstrators with respect to the Unemployment Insurance Act (Ill. Rev. Stat. 1989, ch. 48, par. 300). IDES contends these demonstrators are employees and therefore subject to unemployment. contributions by Bradley. Bradley asserts they are independent contractors that are exempt from contribution under section 212 of the Act. Ill. Rev. Stat. .1989, ch. 48, par. 322.

On December 2, 1986, and April 9, 1987, the Director of IDES served Bradley with notices of determinations and assessments and demand for payment regarding Bradley’s demonstrators. Bradley filed protests and a petition for a hearing.

On August 26, 1987, a hearing was held on the notices of determinations and assessments before the Director’s representative, Irwin Racine. Bradley presented exhibits and testimony from its vice-president, Mark Bradley, its auditor, Steven Cushing, and Betty Thomas, a demonstrator. IDES offered no oral testimony. The hearing record is the source of the facts set out below.

The question of whether Bradley’s demonstrators were employees first arose in 1983, when Stella Roberson, a demonstrator that had been referred by Bradley, filed a claim with IDES seeking unemployment compensation. Bradley protested Roberson’s right to compensation on the theory that she was an independent contractor.

On September 15, 1983, a meeting was held to resolve this issue. Attending the meeting for IDES were auditor Jim Kelly and his supervisor, Lee Pickens. Representing Bradley at the meeting were Steven Cushing, his associate, Wayne Holloway, Mark Bradley and Jack Bradley, the president of Jack Bradley, Inc.

At that meeting, Kelly argued that the demonstrators were employees, while Cushing argued on behalf of Bradley that they were independent contractors. After listening to the arguments, Pickens reached a decision that demonstrators who did not have signed contracts with Bradley would be subject to unemployment contributions; he also decided that demonstrators who had signed contracts claiming status as independent contractors would not be subject to contributions.

Bradley acquiesced in this result and was instructed to compile a list of demonstrators that did not have signed contracts so Kelly could determine the amount of tax owed. Kelly was then to go to Cushing’s office and examine these lists but apparently never did.

In July 1985, Kelly’s replacement,. Suzanne Faulkner, contacted Cushing regarding Bradley’s demonstrators. Cushing informed her of the agreement reached in September 1983, described above, and offered to make available records showing the amount paid to demonstrators without signed contracts. After checking with her supervisors, Faulkner asserted that no agreement had been reached in 1983 and requested all of Bradley’s records.

Bradley has approximately 200 to 250 food demonstrators listed with it. Demonstrators make an average of $500 to $1,000 per year. For the period from June 30, 1983, to March 31, 1987, the total compensation paid to the demonstrators was about $650,000. Virtually all the demonstration work takes place on weekends at grocery stores and none of the demonstrations, are at Bradley’s place of business. Bradley issues 1099 forms to the demonstrators for their tax purposes, rather than W-2 forms.

Demonstrators that are listed with Bradley sign a nonexclusive form contract. Although some demonstrators worked without contracts in 1983, by 1987 demonstrators listed with Bradley had signed this contract. The contract specifically provides that the demonstrator is not an employee but an independent contractor. Mark Bradley testified that based on his personal knowledge and information from the president of the National Association of Demonstrating Companies, this is the standard practice throughout the industry.

A demonstrator that contracts with Bradley may also receive referrals from other companies as well as being contacted directly by food vendors to render services.

Mark Bradley and Betty Thomas testified as to the process of setting up a demonstration. First, the food vendor or retailer contacts Bradley and informs it of the dates of the demonstration, the starting and ending times, and the product to be demonstrated. Bradley then begins calling demonstrators from its list in search of someone to perform the work.

When a demonstrator is contacted by Bradley, she has complete discretion in deciding whether to accept the job. A demonstrator may be unavailable because of previous personal or business engagements. A demonstrator may refuse a job based on the location of the demonstration or her personal feelings about the product. A demonstrator that refuses a job is not penalized in anyway.

If a demonstrator accepts a job, the agreement is confirmed in writing and Bradley sends her a report form. Upon arrival at the store where the demonstration "will take place, the demonstrator reports to the manager or department head responsible for the demonstration. This individual directs the demonstrator on where to set up. Instructions on how to conduct the demonstration are supplied by the food vendor or the store itself. Companies such as Tony’s Pizza and Tombstone Pizza provide demonstrators with detailed instructions on how to properly demonstrate their products, including what to say, what to wear and how to act.

The equipment for the demonstration is provided by the food vendor, the retailer, or the demonstrator herself. In addition to passing out samples of the product, a demonstrator may be responsible for taking inventory and maintaining an adequate shelf supply of the product. If the product being demonstrated sells out, the store may instruct the demonstrator to distribute samples of another product. At the end of the demonstration, the demonstrator is responsible for cleaning up and removing all equipment from the area.

Bradley does not furnish demonstrators with equipment or supplies, or any information on the products demonstrated. Bradley does not train demonstrators or supervise their work in any way.

Normally a demonstrator does not fill out a formal time sheet, although one store, Kroger, made the demonstrators punch in and out. Usually the store manager verifies the demonstrator’s report form and that form is then sent back to Bradley. After receiving this report, Bradley sends a check to the demonstrator for the contract arfiouht. A demonstrator is paid the full contract amount even if the store runs out of supplies early and the demonstrator does not work the full amount of hours scheduled.

There is some question as to how a demonstrator’s rate of pay is determined. The contract submitted as petitioner’s exhibit No. 1 indicates a standard rate of pay for all demonstrations arranged by Bradley. This particular contract pertains to demonstrator Betty Thomas and specifies a wage rate of $36 per eight-hour day. However, Thomas testified before IDES that the amount she received depended on how much the food vendor or retailer paid. In either case, she apparently had little input in deciding her rate of pay, a characteristic usually associated with an employee, not an independent contractor.

At the administrative level the Director found that food demonstrators hired by Bradley were employees, not independent contractors, and therefore not exempt under section 212 of the Unemployment Insurance Act. (Ill. Rev. Stat. 1989, ch. 48, par. 322.) The Director also found that IDES was not estopped from assessing unpaid contributions and assessed Bradley $13,898.16 plus interest. On August 25, 1989, the circuit court reversed the Director’s decision as being contrary to the manifest weight of the evidence.

IDES contends on appeal that: (1) Bradley failed to prove the demonstrators met all the requirements of section 212 and therefore they are employees for the purposes of the Unemployment Insurance Act; (2) IDES was not estopped from assessing unemployment contributions by virtue of an oral statement made by an IDES auditor.

The purpose of the Unemployment Insurance Act is to provide economic security to those that are involuntarily unemployed. (Ill. Rev. Stat. 1989, ch. 48, par. 300.) Section 212 sets out the requirements for a specific exemption from the Act for people who earn a living as independent contractors. In order for Bradley’s food demonstrators to be characterized as independent contractors all three requirements of section 212 must be satisfied. (Ill. Rev. Stat. 1989, ch. 48, par. 322.) Section 212 reads as follows:

“Service performed by an individual for an employing unit, whether or not such individual employs others in connection with the performance of such services, shall be deemed to be employment unless and until it is proven in any proceeding where such issue is involved that—
A. Such individual has been and will continue to be free from control or direction over the performance of such services, both under his contract of service and in fact; and
B. Such service is either outside the usual course of the business for which such service is performed or that such service is performed outside of all places of business of the enterprise for which such service is performed; and
C. Such individual is engaged in an independently established trade, occupation, profession or business.” Ill. Rev. Stat. 1989, ch. 48, par. 322.

On administrative review of any agency decision, the findings of fact shall be held to be prima facie true, and the decision should not be reversed unless it is contrary to the manifest weight of evidence. (Ill. Rev. Stat. 1989, ch. 110, par. 3 — 110; Farmers Insurance Exchange v. Department of Labor (1989), 186 Ill. App. 3d 493, 542 N.E.2d 538.) The court’s sole function on review of an administrative decision is to determine whether the decision was just and reasonable. Farmers, 186 Ill. App. 3d at 498, 542 N.E.2d at 540.

The Unemployment Insurance Act is to be liberally construed for the benefit of the unemployed worker. (Griffitts Construction Co. v. Department of Labor (1979), 76 Ill. 2d 99, 390 N.E.2d 333.) Any inquiry under section 212 is directed towards the actual relationship between the parties, and thus designations or terminology used by the parties is not controlling. (Bennett v. Department of Employment Security (1988), 175 Ill. App. 3d 793, 530 N.E.2d 541; Farmers, 186 Ill. App. 3d at 498, 542 N.E.2d at 540.) The common-law definition of independent contractor does not control under the Act, and “employee” is defined broadly; it includes relationships not ordinarily considered to be “employment” at common law. Farmers, 186 Ill. App. 3d at 498-99, 542 N.E.2d at 541.

Under the Act, a worker is considered an employee until proven otherwise. Any party claiming an independent contractor exemption has a strict burden of proof. (Farmers, 186 Ill. App. 3d at 498, 542 N.E.2d at 540.) As section 212 is conjunctive, failure by the claiming party to satisfy its burden of proof on any of the three requirements must result in a decision for the other side.

Although this is a case of first impression in Illinois, a recent Missouri appellate case addressed a factual situation that was nearly identical. (Sample & Sell, Inc. v. Labor & Industrial Relations Comm’n (Mo. App. 1988), 764 S.W.2d 109.) The statutory requirements for independent contractor exemption in Missouri are identical to those in section 212. Mo. Ann. Stat. §288.034(5) (Vernon 1965).

In Sample, Missouri’s Division of Employment Security and Labor and Industrial Relations Commission ruled that food demonstrators were employees, not independent contractors. The trial court reversed, but the appellate court in turn reversed the trial court and affirmed the administrative decision. Sample, 764 S.W.2d 109.

Sample and Sell, Inc., was a company that referred food demonstrators for demonstrating jobs, in the same way Bradley did here. The process was essentially the same. A vendor or retailer would call Sample, Sample would contact a demonstrator and the demonstrator would decide whether to take the job. Sample would then send a report form to the demonstrator to be verified by the store manager and returned to Sample for payment. Sample did not supervise the demonstrators’ activities or determine the times and places of demonstrations.

There were three differences from the case at bar. Sample supplied some of the equipment used in demonstrations. There was no written contract between the demonstrators and the company. No evidence was presented showing Sample’s demonstrators ever worked directly for food vendors.

None of these facts distinguish Sample, however. The fact that Sample supplied some equipment had nothing to do with the basis for the court’s ruling. Whether or not a written contract existed is of little importance because, as already pointed out, designations and terminology do not control under section 212. (Bennett v. Department of Employment Security (1988), 175 Ill. App. 3d 793, 530 N.E.2d 541; Farmers, 186 Ill. App. 3d at 498, 542 N.E.2d at 540.) Although Sample provided no evidence that demonstrators worked directly for food vendors, the evidence provided by Bradley with respect to this point was insufficient to satisfy its burden of proof.

We are persuaded by the Sample court’s reasoning. The third requirement for independent contractor exemption set out in the above statute is especially lacking. The food demonstrators are not customarily engaged in an entrepreneurial enterprise and, therefore, are not “engaged in an independently established trade, occupation, profession or business.” Sample, 764 S.W.2d at 112.

The Sample court reasoned that the requirement of having an independently established trade, occupation, profession or business was included to cover many persons who had freedom from detailed control by an employer but who nevertheless did not have the kind of independence which commonly rids the true entrepreneur of the risk of unemployment. (Sample, 764 S.W.2d at 112.) Thus, “the ultimate issue is whether the person performing the services was engaged in an entrepreneurial enterprise which enjoyed a degree of economic independence such that the enterprise could survive any relationship with the particular person contracting for services.” Sample, 764 S.W.2d at 112.

The standard in Illinois for satisfying this requirement was outlined in Murphy v. Daumit (1944), 387 Ill. 406, 56 N.E.2d 800. The court said that subparagraph (c) required “an individual who has a proprietary interest in such business to the extent that he can operate same without hindrance” and is not dependent on another for employment. Murphy, 387 Ill. at 417, 56 N.E.2d at 805.

In this case the demonstrators did not enjoy such a degree of economic independence. Although there was evidence that demonstrators are contacted directly by food vendors sometimes, such contacts appear to make up only a very minute portion of a demonstrator’s work. Betty Thomas testified that she had been contacted directly by Oscar Myer to do demonstration work in 1987 but could not remember any specific details. She mentioned no other food vendors that she had worked for directly. Bradley offered no other evidence tending to show that it was common for demonstrators to be contacted directly by food vendors. If food vendors regularly sought out demonstrators directly, there would be no reason for Bradley and other companies like it to exist.

Bradley has failed to prove that demonstrators who relied solely on direct contacts from food vendors would have steady employment. It was reasonable for the Director to find that Bradley and other such companies were necessary for the demonstrators’ continued employment. The Director’s decision that Bradley presented insufficient evidence of an independently established trade, occupation, profession or business must be upheld. The court’s finding that the administrative decision was against the manifest weight of evidence is incorrect and must be overturned.

Our affirmance of the finding that demonstrators are employees for the purposes of the Unemployment Insurance Act does not extend the definition of “employee” for any other purpose. Nor does the decision here affect common law theories of agency or vicarious liability. (See Joyce v. National Medical Registry, Inc. (1988), 170 Ill. App. 3d 141, 524 N.E.2d 243 (where we approved a summary judgment determination that an employment service was not vicariously liable for the acts or omissions of a person supplied to a customer of the service).) The result we reach here means only that Bradley must pay tax in accordance with the provisions of the Unemployment Insurance Act; we do not suggest that Bradley was in error in issuing IRS forms 1099 rather than withholding for income tax purposes. For other purposes these food demonstrators may or may not be “employees.”

IDES’ second contention is that it was not estopped from assessing the unemployment contributions, the tax. Bradley asserts that an oral agreement was reached in 1983 between itself and IDES auditor Lee Pickens. Apparently, Jim Kelly, an IDES employee, was to return to Bradley’s accountant’s office and compute the tax owed on those demonstrators that worked under oral arrangements. Kelly failed to return but Bradley never followed up, hence no tax in any amount was paid. Some three years later all demonstrators had written agreements reciting an independent contractor status on forms prepared by Bradley. In Bennet the court noted with approval the hearing officer’s observation (Bennet, 175 Ill. App. 3d at 797, 530 N.E.2d at 544) “that in a regular independent contractor-employer relationship, the independent contractor provides the contract, not the employer.”

Aside from the circumstance that we doubt there would be an estoppel between private parties, there is a general rule against applying the principles of estoppel to a State agency, especially in cases involving the collection of public revenue. (Hickey v. Illinois Central R.R. Co. (1966), 35 Ill. 2d 427, 220 N.E.2d 415.) The doctrine is only applied when necessary to avoid fraud or injustice. (Hickey, 35 Ill. 2d at 449, 220 N.E.2d at 426.) Accordingly, the State is not estopped from collecting taxes by previous acts or conduct of its agents, including the failure to collect a tax legally due because of a mistake or misinformation on the part of agents. National Service Lines, Inc. v. Edgar (1985), 129 Ill. App. 3d 729, 473 N.E.2d 134.

Bradley has presented no persuasive authority for applying estoppel in this case. No fraud or injustice is present. The Director’s decision in this case was supported by the evidence and should not have been disturbed on judicial review. The judgment of the circuit court of Peoria County is reversed.

Reversed.

STOUDER, J., concurs.

PRESIDING JUSTICE HEIPLE,

dissenting:

The plaintiff, Jack Bradley, Inc., filed a complaint seeking judicial review of a decision of the Director of the Illinois Department of Employment Security (hereinafter Agency) which assessed the plaintiff $13,898.16 plus interest in unpaid unemployment contributions. The Agency decision was based on its finding that food demonstrators, who were contacted for jobs by the plaintiff, were employees of the plaintiff, not independent contractors, pursuant to section 212 of the Unemployment Insurance Act. (Ill. Rev. Stat. 1987, ch. 48, par. 322.) The trial court found that the Agency decision was manifestly erroneous and reversed. A majority of this court reverses the trial court decision, finding that the food demonstrators are not “engaged in an independently established trade, occupation, profession or business” as required by the third prong of the independent contractor exemption set forth under section 212. I find that food demonstrators are independent contractors within the meaning of the statute and accordingly dissent.

Jack Bradley is engaged in the advertising and public relations business in Chillicothe, Illinois. As part of his business, Jack Bradley acts as a conduit between retail food stores and food demonstrators as to the availability of food demonstration work in retail establishments. The requests for food demonstrators’ services are initiated by retailers and then Bradley contacts one of the approximately 200 to 250 food demonstrators that he has on a list. The food demonstrators are free to either accept or reject the job. Jack Bradley’s contract with the demonstrators is entitled “Independent Contract Agreement” and provides in pertinent part that the food demonstrators “have sole control of the manner and means of performing” the job and are “responsible for supplying all equipment necessary for the performance” of the job. None of the demonstration work takes place at Bradley’s place of business, and Bradley issues 1099 forms to the demonstrators for tax purposes, which are the forms which are normally issued to independent contractors. Bradley pays the demonstrators for the jobs performed, and Bradley receives approximately 20% of his total business from arranging jobs between the retailers and demonstrators. Betty Thomas, a food demonstrator, testified that she is an independent demonstration person and that she finds work either through the food vendors or Jack Bradley.

The independent contractor exemption in section 212 of the Unemployment Insurance Act applies when three criteria are met: (1) whether the individual is free from control; (2) whether the service is outside the usual course of business or is performed outside all of the places of business of the enterprise for which the service is performed; and (3) whether the individual is customarily engaged in an independently established trade, occupation, profession or business. (Ill. Rev. Stat. 1989, ch. 48, par. 322.) Here, there is no question that the demonstrators were free from Bradley’s control and direction and that the demonstrations were performed outside all of the places of Bradley’s business. Thus, the only question remaining is whether the food demonstrators were engaged in an independently established trade, occupation, profession or business.

The majority, relying on a Missouri appellate case with a similar factual situation, finds that this third requirement is lacking. (Sample & Sell, Inc. v. Labor & Industrial Relations Comm’n (Mo. App. 1988), 764 S.W.2d 109.) In Sample, the Missouri Appellate Court found that food demonstrators are not engaged in an independent entrepreneurial enterprise, but are dependent upon other entities for employment. The reasoning of Sample is flawed and is not binding precedent in Illinois.

The definition of an “independent contractor” necessarily means that a person is contracting with another to perform a particular job. (Black’s Law Dictionary 693 (5th ed. 1979).) While the common-law definition of an independent contractor does not control under the Unemployment Insurance Act (Farmers Insurance Exchange v. Department of Labor (1989), 186 Ill. App. 3d 493, 542 N.E.2d 538), neither the language of section 212 nor the case law interpreting the statute warrants the hollow definition given “independent contractors” by the majority holding. In the case at bar, the food demonstrators are not dependent on Jack Bradley for demonstration jobs but can obtain work from the food vendors directly or from other companies. Thus, under a commonsense reading of section 212(c), the food demonstrators are engaged in an independent occupation. Additionally, this case is factually distinct from the only Illinois case interpreting the third requirement of section 212. (Legal Process Service, Inc. v. Ward (1988), 165 Ill. App. 3d 83, 518 N.E.2d 768.) In Ward, Legal Process Service, Inc. (hereinafter LPS), hired persons to serve process for litigating attorneys. The Ward court found that these process servers were employees of LPS under section 212(c) because they engaged in no independent process serving other than pursuant to the directions of LPS, which engaged them. In the present case, the food demonstrators were free to, and did, perform their services independent of Jack Bradley, Inc.

Accordingly, I agree with the trial court that it was manifestly erroneous for the Illinois Department of Employment Security to find that the food demonstrators were employees rather than independent contractors under section 212. Therefore, I dissent.


source: Caselaw Access Project

author: JUSTICE GORMAN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DONALD E. DENNING, Defendant-Appellant.
    Third District
    No. 3-90-0131
    Opinion filed October 24, 1990.
    Kenneth D. Brown, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Gary Spencer, State’s Attorney, of Morrison (Gary F. Gnidovec, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GORMAN

delivered the opinion of the court:

Following a guilty plea, the defendant, Donald E. Denning, was convicted of perjury (Ill. Rev. Stat. 1989, ch. 38, par. 32 — 2(a)) and sentenced to 30 months’ probation. The defendant’s probation was subsequently revoked, and the trial court sentenced him to three years’ imprisonment. The defendant appeals. We affirm.

The record reveals that as a condition of the defendant’s probation, he was ordered to serve six months in home detention. Under the conditions of his confinement, he was not allowed to be absent from his home for any reason other than medical treatment or for purposes of purchasing groceries or other necessities. The defendant was to receive the same good-time credit for home detention he would have received for incarceration in the county jail.

A petition to revoke the defendant’s probation was subsequently filed. Following a hearing, the trial court granted the petition and extended the defendant’s probation an additional 30 months, conditioned upon his serving 60 days in the county jail.

The record further reveals that four separate revocation petitions were filed within a period of two years. The trial court ultimately sentenced the defendant to three years’ imprisonment, with credit for the time he had spent in custody. However, the defendant was not given credit for the time he had spent in home detention. The defendant argues on appeal that he is entitled to 91 days of additional credit for that time.

A similar issue was recently addressed by the Illinois Supreme Court in People v. Ramos (1990), 138 Ill. 2d 152. In Ramos, the defendant was placed under a home detention bond and was not allowed to leave his home without the prior consent of his probation officer or the court. The supreme court held that the term “custody” as used in section 5 — 8—7(b) of the Unified Code of Corrections (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—7(b)), which deals with sentencing credit, was not intended to encompass the period during which a defendant is released on bond, regardless of the restrictions imposed on him during that time. The court reasoned that home confinement differed in several respects from confinement in a jail or prison. In particular, it noted that an offender detained at home is not subject to the regimentation of penal institutions and, once inside the residence, enjoys unrestricted freedom of activity, movement, and association.

While we note that here the defendant’s home confinement was a condition of his probation and not part of a trial bond, we find this distinction meaningless. In light of the supreme court’s decision in Ramos, we find that the defendant is not entitled to an additional 91 days’ credit for the time he served in home confinement.

The judgment of the circuit court of Whiteside County is affirmed.

Affirmed.

HEIPLE, P.J., and STOUDER, J., concur.


author: PRESIDING JUSTICE HEIPLE

text:
    KATHLEEN HOWARD, Indiv. and as Mother and Next Friend of Joshua Howard, a Minor, Plaintiff-Appellant, v. PHILOMENA FRANCIS et al., Defendants-Appellees.
    Third District
    Nos. 3 — 88—0624, 3 — 89—0546 cons.
    Opinion filed October 12, 1990.
    Rehearing denied November 28,1990.

      Michael L. Bolos, Ltd., of Shorewood, and Snyder, Jaquays & Washburn, of Joliet (Michael L. Bolos and Andrew B. Boyer, of counsel), for appellant.
    Robert J. Baron, of Rooks, Pitts & Poust, of Joliet (Pamela Davis, of counsel), for appellees Philomena Francis and P.A. Edwin.
    Diane I. Jennings, Robert B. Austin, and Hugh C. Griffin, all of Lord, Bissell & Brook, of Chicago, for appellee John B. Roth, Jr.
    Dorothy F. French, of French, Kezelis & Kominiarek, P.C., of Wheaton, for appellee Morris Hospital.
   PRESIDING JUSTICE HEIPLE

delivered the opinion of the court:

These consolidated appeals arise out of a medical malpractice action filed on behalf of the plaintiff-minor, Joshua Howard, for birth-related injuries. The plaintiff appeals from two trial court orders: (1) the trial court’s denial of the plaintiff’s motion to vacate an order which granted the plaintiff a second voluntary dismissal; and (2) the trial court’s dismissal of the plaintiff’s third filing of the case with prejudice on the grounds of excessive filings pursuant to section 13 — 217 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 13-217). We affirm.

In 1982, the plaintiff filed a medical malpractice action against defendants Morris Hospital, Dr. Philomena Francis, Dr. P.D. Edwin, and Dr. John B. Roth, alleging that defendants rendered negligent medical treatment during the delivery and post-delivery care of the minor plaintiff, causing him permanent neurological injury. After the trial of this matter was rescheduled 11 times, the plaintiff voluntarily dismissed the action on March 27, 1985. The action was then refiled on August 21, 1985. Trial of the second action was rescheduled five times and numerous motions for continuances were granted. On July 2, 1987, the plaintiff moved for his fourth continuance because of the purported unavailability of one of his three experts, Dr. J. Patrick Lavery. At the time the plaintiff requested the continuance, the trial was scheduled for July 13, 1987. The trial court denied the motion for continuance.

Thereafter, on July 10, 1987, the plaintiff moved to substitute Dr. Robert D. Eden as an expert in place of Dr. Lavery. The plaintiff sent defense counsel a detailed outline of Dr. Eden’s opinions, which the defendants claim differed substantially from the opinions rendered by Dr. Lavery. The circuit court did not rule on the plaintiff’s motion to substitute, but indicated that it was disinclined to add an expert on the Friday before a Monday trial date. On July 13, 1987, the day trial was to commence, plaintiff moved to voluntarily dismiss his complaint for a second time. The plaintiff asserted therein that Dr. Lavery was unavailable, and that he was afraid that the court would not permit him to present the testimony of Dr. Eden or, alternatively, that if Dr. Eden’s testimony was allowed, the testimony would be grounds for reversal on appeal should plaintiff prevail at trial. The motion for voluntary dismissal was granted on July 14, 1987, over defendants’ objections.

Finally, on August 12, 1987, the plaintiff filed a motion to vacate the July 13, 1987, voluntary dismissal and additionally filed a third action in this matter. Defendants filed a motion to dismiss the third action. The trial court denied the plaintiff’s motion to vacate the voluntary dismissal of the 1985 filing and granted defendants’ motion to dismiss the 1987 filing as an excessive filing under section 13 — 217 (Ill. Rev. Stat. 1987, ch. 110, par. 13 — 217).

Three issues are presented by this appeal: (1) whether the trial court had jurisdiction to grant the plaintiff’s motion to vacate the voluntary dismissal of his 1985 filing; (2) whether the trial court erred in dismissing the plaintiff’s third filing on the grounds of excessive refilings; and (3) whether the trial court abused its discretion in denying the plaintiff’s July 2, 1987, motion for a continuance.

It is well settled that a circuit court may not set aside a voluntary dismissal unless, at the time it was entered, the plaintiff was granted leave to later move to vacate the order. (Weisguth v. Supreme Tribe of Ben Hur (1916), 272 Ill. 541.) Such leave was not granted in this case. The reason for this rule is that “[i]f a plaintiff by his deliberate and voluntary act secures the dismissal of his suit he must be held to have anticipated the effect and necessary results of this action and should not be restored to the position and rights which he voluntarily abandoned.” (Weisguth, 272 Ill. at 543.) Here, the plaintiff freely and voluntarily chose to dismiss his complaint for a second time over defendants’ objections. Thus, the trial court did not have the power to vacate its order of dismissal and reinstate the plaintiff’s medical malpractice action.

The plaintiff next argues that the trial court erred in dismissing the plaintiff’s third filing of this action based on a misinterpretation of section 13 — 217 of the Illinois Code of Procedure. Section 13 — 217 provides in relevant part:

“In the actions specified in Article XIII of this Act or any other act or contract where the time for commencing an action is limited, if *** the action is voluntarily dismissed by the plaintiff, or the action is dismissed for want of prosecution *** then, whether or not the time limitation for bringing such action expires during the pendency of such action, the plaintiff *** may commence a new action within one year or within the remaining period of limitation, whichever is greater, after *** the action is voluntarily dismissed by the plaintiff, or the action is dismissed for want of prosecution ***.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 110, par. 13-217.)

The plaintiff maintains that section 13 — 217 permits a plaintiff to file a cause of action as many times within the original statute of limitations as is necessary. Therefore, because the plaintiff is an incompetent minor whose statute of limitations does not expire until his disabilities are removed (Ill. Rev. Stat. 1989, ch. 110, par. 13— 212), the plaintiff claims that his third filing is permissible. The plaintiff relies on the fifth district appellate case of Relaford v. Kyaw (1988), 173 Ill. App. 3d 1034, 1042, which held that, under section 13 — 217, “[t]he plaintiff has a right to file as many times as needed within the original statute of limitations.”

We reject the plaintiff’s argument based on the reasoning set forth in the first district appellate case of Walicek v. Ciba-Geigy Corp. (1987), 155 Ill. App. 3d 667, our decision in Reed v. Illinois Concepts (3d Dist. 1989), No. 3—88—0217 (unpublished order under Supreme Court Rule 23), and the first district appellate case of Bernstein v. Gottlieb Memorial Hospital (1989), 185 Ill. App. 3d 709. In Walicek, the plaintiff filed two actions prior to the expiration of the statute of limitations with the first suit being dismissed for want of prosecution and the second suit being voluntarily dismissed 11 months after the statute of limitations had expired. The plaintiff then attempted to file a third complaint. The Walicek court found that section 13 — 217 expressly permits one, and only one, refiling of the claim “even if the statute of limitations has not expired,” and therefore reversed the circuit court’s denial of the defendants’ motion to dismiss plaintiff’s third complaint.

This court in Reed v. Illinois Concepts (3d Dist. 1989), No. 3—88—0217 (unpublished order under Supreme Court Rule 23) was presented with a fact pattern similar to Walicek. In Reed, the plaintiffs filed two causes of action prior to the expiration of the statute of limitations, which were voluntarily dismissed, and then filed a

third action after expiration of the statute of limitations. This court followed the holding of Walicek and found that section 13 — 217 only permits a plaintiff to refile a cause of action one time and that “by its very terms, section 13 — 217 is obviously intended to take into account refilings occurring prior to expiration of the statutory time period.” (Reed, No. 3—88—0217, slip op. at 8 (unpublished order under Supreme Court Rule 23).) Moreover, this court expressly rejected the Relaford holding, which the plaintiff relies on, by stating:

“In Relaford the Fifth District Appellate Court held that a ‘plaintiff has a right to file as many times as needed within the original statute of limitation.’ (Relaford, 173 Ill. App. 3d 1034, 527 N.E.2d, at 1334.) We simply regard this holding as an incorrect statement of the law in light of prior case law and the language contained within section 13 — 217.” Reed, No. 3—88—0217, slip op. at 12 (unpublished order under Supreme Court Rule 23).

The Relaford case has also been distinguished in Bernstein v. Gottlieb Memorial Hospital (1989), 185 Ill. App. 3d 709, a case which mirrors the facts of the instant case. In Bernstein, an incompetent minor attempted to file a malpractice action for a third time before the statute of limitations had expired. The Bernstein court agreed with the reasoning in Walicek which interpreted “a new action” in section 13 — 217 to mean that only one refiling is permitted, even if a statute of limitations has not expired. Bernstein (1989), 185 Ill. App. 3d at 713.

The common thread running through Walicek, Reed, and Bernstein is that each case adheres to rules of statutory construction by giving effect to the plain meaning of the statutory language of section 13 — 217. (Franzese v. Trinko (1977), 66 Ill. 2d 136, 139-40.) The phrase “may commence a new action *** within the remaining period of limitation” is unambiguous and must be interpreted to mean that only one refiling is permitted regardless of whether or not the applicable statute of limitations has expired. Accordingly, we find that the trial court did not err in dismissing the plaintiff’s third filing of the case with prejudice.

Finally, there is no merit to the plaintiff’s claim that the trial court abused its discretion in denying the plaintiff’s fourth motion for a continuance. The plaintiff’s request was predicated on the alleged unavailability of his own expert witness. Supreme Court Rule 231 provides that a party who applies for a continuance based on the absence of material evidence shall support the motion by affidavit. (107 Ill. 2d R. 231(a).) Here, no such affidavit accompanied the plaintiffs motion for continuance and this alone is a sufficient basis to deny the plaintiffs motion. Mikarovski v. Wesson (1986), 142 Ill. App. 3d 193.

For all the foregoing reasons, the decision of the circuit court of Will County is affirmed.

Affirmed.

BARRY and GORMAN, JJ., concur.


author: JUSTICE BARRY

text:
    SHERRY E. KELSO, Adm’r of the Estate of Lisa L. Kelso, Deceased, et al., Plaintiffs-Appellants, v. JOHN WATSON, d/b/a Foley-Watson Mortuary, et al., Defendants-Appellees.
    Third District
    No. 3-90-0070
    Opinion filed September 11, 1990.
    Rehearing denied November 30, 1990.

      Michael J. Warner, of Braud/Warner, Ltd., of Rock Island (Duane Thompson, of counsel), for appellants.
    Burrel Barash, of Barash, Stoerzbach & Henson, of Galesburg, for appellee.
   JUSTICE BARRY

delivered the opinion of the court:

Plaintiffs, administrator of the estate of Lisa Kelso, deceased, and her next of kin, brought suit against defendant mortuary and mortician claiming damages for intentional infliction of emotional distress and improper disposal of the decedent’s body. On defendant’s motion, all four counts of the original complaint were dismissed for failure to state a cause of action. Plaintiffs amended counts II and IV, and defendant renewed his motion to dismiss. After a further hearing, the court granted defendant’s motion and proposed to grant plaintiffs leave to further amend, but plaintiffs’ counsel stated that he could not improve on the allegations. The court, accordingly, dismissed both counts of the amended complaint with prejudice, and this appeal followed. The dismissal of counts I and III, brought by the administrator, has not been appealed.

The amended complaint alleges in count II that defendant owed plaintiffs a duty to refrain from willful and wanton conduct; that in conscious disregard of this duty, defendant told plaintiffs that the decedent had acquired immune deficiency syndrome (AIDS), and that because of the disease her body had to be cremated instead of buried; that defendant “knew or should have known” that in fact decedent did not have AIDS; that had plaintiffs not been told that the decedent had AIDS they would have chosen interment as the appropriate disposition of the corpse; and that the proximate result of defendant’s intentional conduct was extreme emotional distress suffered by the plaintiffs. In count IV, plaintiffs allege the same core facts and charge that defendant’s willful and wanton disregard for the rights of plaintiffs as decedent’s next of kin to dispose of the body in an appropriate manner caused them severe emotional distress.

The standards by which we review the circuit court’s dismissal were summed up in Schaffer v. Zekman (1990), 196 Ill. App. 3d 727, 731, 554 N.E.2d 988, 991:

“In reviewing the circuit court’s dismissal, this court must accept as true all well-pleaded facts in the complaint and all reasonable inferences which can be drawn therefrom to determine, as a matter of law, whether the pleadings state a cause of action.' (Harris Trust & Savings Bank v. Phillips (1987), 154 Ill. App. 3d 574, 579, 506 N.E.2d 1370.) Conclusions of law or conclusions of fact not supported by allegations of specific facts will not be considered. Davis v. Keystone Printing Service, Inc. (1982), 111 Ill. App. 3d 427, 433, 444 N.E.2d 253.”

A cause of action for intentional infliction of emotional distress can be stated if the facts alleged demonstrate:

“(1) the defendant’s conduct is so extreme and outrageous as to exceed all possible bounds of decency; (2) the emotional distress inflicted is so severe that no reasonable person could be expected to endure it; and (3) the defendant intended to inflict this distress or was substantially certain the conduct would result in severe distress.” (Berkos v. National Broad casting Co. (1987), 161 Ill. App. 3d 476, 496-97, 515 N.E.2d 668, 680, citing Public Finance Corp. v. Davis (1976), 66 Ill. 2d 85, 89-90, 360 N.E.2d 765.)

As with any tort action, plaintiffs also must allege actual and proximate causation of the injury by defendant’s conduct. Debolt v. Mutual of Omaha (1978), 56 Ill. App. 3d 111, 371 N.E.2d 373.

In this case, the complaint cannot withstand scrutiny because some of the essential elements are alleged in a conclusionary fashion without specific facts to support them. A mortician’s telling of a lie to the next of kin concerning the decedent could, indeed, be considered outrageous conduct, especially where that lie accuses the deceased of having contracted an odious, sexually transmittable disease like AIDS. Cremation of a corpse against the wishes of the next of kin, if done maliciously, out of ill will or spite, likewise could be conduct sufficiently outrageous to support that element of the tort.

The intent and injury allegations, however, are purely conclusionary. With respect to the former, plaintiffs allege merely that defendant “knew or should have known that plaintiff’s decedent did not have AIDS.” There are no facts to support the bald allegation that defendant intended to cause or recklessly disregarded the probability that plaintiffs would be emotionally distressed. We cannot tell from the allegations whether defendant knew that the decedent did not have AIDS at the time he discussed cremation with the plaintiffs. There are no facts from which we can determine how defendant knew in fact that the decedent did not have AIDS or why he should have known that she did not have the disease. If, for example, defendant possessed a death certificate stating that the decedent died from causes other than AIDS at the time he told plaintiffs otherwise, this fact should have been alleged. Nor are there facts alleged demonstrating that defendant knew that decedent’s cremation would cause emotional distress to plaintiffs.

With respect to the allegations, of injury, plaintiffs allege only that the decedent was cremated and that “as a proximate result of the defendant’s conduct, *** plaintiff’s decedent’s next of kin underwent and continue to undergo extreme emotional distress.” This bald allegation is unsupported by any factual allegation that demonstrates why cremation was particularly repugnant to plaintiffs, or why no reasonable person could expect to endure the degree of emotional distress inflicted upon them. If, for example, the next of kin held religious or moral beliefs that cremation was particularly immoral or offensive, such beliefs were not alleged.

Because all essential elements of the tort of intentional infliction of emotional distress were not alleged with sufficient factual specificity, the trial court did not err in dismissing amended count II of the complaint.

Plaintiffs’ count IV is similarly flawed. To state a cause of action based on the right of the next of kin to possession and preservation of the body of a decedent, plaintiffs must demonstrate by specific facts that defendant’s conduct was willful and wanton. (Hearon v. City of Chicago (1987), 157 Ill. App. 3d 633, 637, 510 N.E.2d 1192, 1195, citing Mensinger v. O’Hara (1914), 189 Ill. App. 48.) Plaintiffs here allege only the legal conclusion “[t]hat the defendant knowingly and in a conscious disregard for the rights of the next of kin, did violate the aforesaid duty [not to willfully or wantonly violate the rights of the next of kin to make appropriate disposition of decedent’s corpse] by knowingly and willfully cremating decedent’s corpse.” Without any facts to support the allegation that defendant knew the decedent did not have AIDS and without an allegation that plaintiffs had made known to defendant their desires that the decedent’s body be interred, there is no factual support for the intent element in count IV.

As aforesaid, plaintiffs’ counsel made it clear in the circuit court that plaintiffs could not improve upon their complaint. Having determined that the court correctly found that both counts failed to state a cause of action, we must affirm the judgment of dismissal with prejudice.

The judgment of the circuit court is affirmed.

Affirmed.

HEIPLE, P.J., and SCOTT, J., concur.


author: PRESIDING JUSTICE UNVERZAGT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT HERNANDEZ, JR., Defendant-Appellant.
    Second District
    No. 2 — 88—0518
    Opinion filed August 15, 1990.
    Rehearing denied November 26,1990.

      G. Joseph Weller, of State Appellate Defender’s Office, of Elgin, for appellant.
    James E. Ryan, State’s Attorney, of Wheaton (William L. Browers and Mary Beth Burns, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE UNVERZAGT

delivered the opinion of the court:

Robert Hernandez, Jr., was indicted by the Du Page County grand jury for the murder of Jolene LaRocca and the attempted murder of Mark Caccippio. The 16-count indictment included seven counts of murder, one count of attempted murder, two counts of aggravated battery, three counts of home invasion, one count of residential burglary, and two counts of armed violence. All of these charges arose out of events which occurred on April 29, 1986, at Caccippio’s apartment in Downers Grove, Illinois.

The defendant pleaded guilty to count I of the indictment, which charged the murder of Jolene LaRocca with an intent to kill, and to count VIII of the indictment, which charged the attempted murder of Mark Caccippio. In exchange, it was agreed that all the other charges would be nol-prossed, and, as to sentencing, the only agreement was that the death penalty would not be sought on the murder charge. The defendant was advised that extended-term penalties — up to 80 years for murder and 60 years for attempted murder — would be possible if the circumstances of the offenses were found to have been accompanied by exceptionally brutal or heinous behavior.

The State presented a detailed factual basis for the guilty plea which may be summarized as follows. On April 29, 1986, at approximately 9:30 p.m., the defendant broke into the apartment of Mark Caccippio armed with a pipe. Jolene LaRocca, who was in the bedroom with Caccippio, took the pipe away from the defendant. The defendant rearmed himself with a pair of scissors taken from the kitchen area of the apartment. A struggle between the defendant and Caccippio then ensued during which Caccippio was stabbed seven times. Jolene LaRocca was thereafter stabbed 89 times by the defendant. She died from loss of blood due to multiple injuries to the heart, lungs, liver, and one stab wound which penetrated to the brain through her right eye. Caccippio’s wounds required extensive treatment at a hospital.

The defendant was arrested at the scene, and he later made a statement to the police admitting the acts alleged. He told a detective that Jolene had informed him a few days before the incident that she was seeing Mark Caccippio and, on the day of the incident, Jolene further told him she did not want to go out with him or talk with him. Although not mentioned in the prosecutor’s factual basis, the record shows the defendant and Jolene LaRocca had a long-standing relationship and that they had a three-year-old daughter, Serena Marie Hernandez.

The defendant told the police that when he did not find Jolene at home, he found out what Caccippio’s address was and went to Caccippio’s apartment. After listening at the door for about 20 minutes, the defendant kicked in the apartment door and observed Caccippio and Jolene, fully clothed, lying on the bed. The defendant stated he fought with Caccippio, chasing him into the hallway. Caccippio told the police the defendant stabbed him, kicked him in the head, and that the defendant tried to insert the scissors into his rectum. When the fight with Caccippio ended, the defendant went back into the apartment and saw Jolene on the phone trying to contact the police, saying, “Please hurry, please hurry.” The defendant stated that he began to stab her and that he “just kept stabbing her and couldn’t stop.” The defendant told the police he stabbed Jolene in the face, eyes, neck and chest.

The defendant’s guilty pleas were accepted by the court, and judgments of conviction were entered. A presentencing report was filed which noted that the defendant had no prior criminal record but which concluded that he has an “apparent tendency to violence” as evidenced by the circumstances of the instant offenses and by his hospitalization on three separate prior occasions as a result of injuries received in altercations.

During a lengthy eight-day sentencing hearing, a total of 28 witnesses were called to the stand by both sides. There were also several stipulations of testimony, and victim impact statements were introduced. Defense counsel’s objection to the conclusional statement in the presentencing report about the defendant’s “tendency to violence” was overruled. Defense counsel also had specific objections to each victim impact statement as it was orally presented, and portions of the statements were ruled improper by the court. The court did not exclude all portions of the statements relating to the suicide death of Jody LaRocca, Jolene’s brother, which suicide was felt by those making the statements to have been caused in part by Jolene’s murder.

In addition to presentation of the victim impact statements, the State’s evidence during the sentencing hearing included the testimony of Mark Caccippio and various police officers whose testimony essentially repeated the circumstances of the offenses previously set forth in the factual basis provided by the prosecutor at the guilty plea proceedings.

During presentation of its case during sentencing, the defense called 16 witnesses to the stand, including the defendant. A number of character witnesses — four neighbors, three friends and three co-workers — testified on behalf of the defendant. They stated that the defendant was a nonviolent person, an honest man and good worker. A clergyman testified that the defendant had become a spiritual leader in jail, and a corrections officer described him as a model prisoner. The defendant’s sister and father also testified on the defendant’s behalf.

Taking the stand on his own behalf, the defendant denied that he had a prior tendency to violence as suggested in the presentence report. He explained the three prior incidents which were in the presentence report: in 1980, he broke up a fight between his brother and one of Jolene’s brothers, and, while doing so, a third man unexpectedly hit him in the face with a car jack. In 1981, he was involved in a scuffle over a parking place and was hit with a bat. Then, in 1982, he crashed a party, and, as he was leaving, the intoxicated host hit him with the butt of a gun.

The defendant also provided a summary of his relationship with Jolene LaRocca. They met in 1979 while in high school, and “it was love at first sight.” Until 1981, they lived together as a couple, with few problems. In 1981, Jolene had an abortion with his concurrence. They resumed their relationship théreafter and their daughter, Serena, was born on November 18, 1983, during a period in which they were living in the basement of the defendant’s parents’ home. They frequently discussed marriage, although they had some disagreements, and they continued to live in the defendant’s parents’ house until 1985. They then moved into an apartment in Westmont and both worked. Jolene moved out of the apartment in August or September 1985, but she continued to see him on a frequent basis. Eventually, he moved back to his parents’ house and turned the apartment over to Jolene, where she lived with the baby and Jolene’s sister, Danielle LaRocca. In March 1986, he and Jolene again talked about getting married and went as far as to ask friends to stand up for them at the wedding.

The defendant testified that, on Sunday, April 27, 1986, two days before the incident at the Caccippio apartment, he, Jolene and their daughter spent a pleasant day together. He spent the next night with Jolene at her mother’s house. During the night, Jolene revealed the full extent of her relationship with Mark Caccippio. Jolene had previously told the defendant that she had dated another man, but the defendant believed this relationship was not serious. He was upset when Jolene told him that she had slept with Caccippio. She assured the defendant, though, that he was “better in bed” than Caccippio. By morning, he and Jolene had renewed their relationship and still contemplated marriage.

On the day of the incident, he met Jolene and her mother after work at a pizza place. He and Jolene made plans for an evening together. Jolene later cancelled their date, stating over the telephone that she felt ill. The defendant wanted to talk with Jolene about their contemplated marriage, so he drove over to her mother’s house and found her car was gone. A subsequent telephone call to Jolene’s mother confirmed that she was out of the house. When the defendant also determined that Jolene was not at the apartment, he suspected that she might be seeing Mark Caccippio.

He learned Caccippio’s address by calling directory assistance. He went to that address and found Jolene’s car in the parking lot. The defendant picked up a “little bar” (a pipe) for protection and went inside the building. He listened at the door of the apartment. When he heard Jolene talk about leaving, he unscrewed some light bulbs in the hallway so he would not be seen. Then, because she did not come out, he tried to get in by removing a ceiling tile. Finally, upon hearing what he thought was kissing, the defendant broke through the door and entered the apartment. He testified that his sole purpose was to get Jolene out and that he did not intend to hurt anybody.

Jolene and Caccippio were on the bed fully clothed except that Jolene’s pants were unzipped and her shoes were on the floor. In Caccippio’s testimony, when the defendant broke down the locked door and entered the apartment, Jolene stated, “Bob, don’t you touch him,” and the defendant, breathing heavily, stated to Caccippio, “Come on, motherfucker; come on motherfucker.” The defendant’s testimony was that Jolene got off the bed and “came at” him in a state of rage. She took the bar away from him and told him, “If you don’t get out of here right now, you’ll never see your daughter again.” According to Caccippio’s testimony, the defendant punched Jolene in the face twice with his left hand after she took the bar away from him. The defendant’s testimony was that he tried to leave the apartment, but that Jolene pulled his hair from behind. As he fell, he saw Caccippio holding the bar. The defendant then took a pair of scissors from a pencil-holder cup in the kitchen and stabbed Caccippio in the stomach. The struggle between the defendant and Caccippio continued into the hallway, and the defendant testified he could only remember “pieces” of what occurred. He could not remember stabbing Jolene. He only remembered seeing “black” and “red” and “walking.” He described himself as “being out of control.”

The defendant stated he was remorseful over the incident and did not believe he was guilty of premeditated murder. He testified that he pleaded guilty because he was afraid of the death penalty.

Also on behalf of the defendant at sentencing, the defense called the two expert witnesses who were the subject of the State’s previous pretrial motion in limine, Dr. Lisa Robbin Grossman and Dr. William S. Kusick. Prior to entry of the defendant’s guilty plea, the court granted the State’s pretrial motion to exclude the doctors’ testimony at trial on the basis intense passion is a state of mind which is not a mental defect or disorder that may be established by psychiatric testimony.

After examining the defendant for five hours on two separate occasions and studying the police reports concerning the case, Dr. Gross-man testified at the sentencing hearing she found no evidence of psychosis or a thinking disorder. Dr. Grossman believed the defendant was a young man with “strong feelings of inadequacy and low self-esteem” who has “strong needs for affection.” She concluded: “He is especially vulnerable to situations that would challenge his masculinity or sources of dependency, and under these kinds of circumstances, he could have trouble putting things in perspective and controlling any emotional outbursts.” Regarding the incident in question, she stated she believed he

“was under severe emotional disturbances, and that given the fact that he felt that his world was collapsing, that what was most important to him was being taken away from him, that given his strong dependency needs, feeling that Jolene was no longer was going to take care of him and be there for him, that given all that, coupled with the fact that she was threatening not to let him see his daughter, threatening his manhood, saying that, take this like a man, and then actually grabbing him, caused a state of uncontrolled frenzy and rage *** [which] was an intense and sudden passion *** evoked by the psychological, emotional distress, coupled with the actual, physical grabbing and fighting.”

Dr. Grossman further believed that the defendant had the opposite intention of wanting to kill Jolene; he wanted her to be his wife, to live with her and be with her but that he was out of control. Dr. Grossman believed his remorse was sincere.

Dr. Kusick examined the defendant on one occasion for about IV2 hours. He determined the defendant “was a rather naive, immature individual who showed no evidence of any psychiatric illness, and a rather, almost happy-go-lucky attitude toward life.” Based on his examination of the defendant, it was the doctor’s opinion that the defendant was confused and frustrated when he entered Caccippio’s apartment; that he did not know what he was going to do; that he was acting under sudden, intense passion; and that he had a true blackout. As to whether the defendant would be capable of such acts again, it was the doctor’s opinion that this experience was unlikely to recur.

The State called four witnesses in rebuttal. Kelly Hoseman, Jolene’s girlfriend since sixth grade and the one who introduced the defendant and Jolene when they were sophomores in high school, described the defendant as being “low keyed, but jealous of Jolene.” Hoseman was present on one occasion in which the defendant hit Jolene, and she was on the telephone with Jolene in 1986 during a time when the defendant was throwing glasses at Jolene. George Manseau, the defendant’s supervisor at work, related a conversation he once had with the defendant in which the defendant said that if he knew Jolene was going out with another man, he might kill Jolene or the man. Shirley LaRocca, Jolene’s mother, testified that on the day of the incident Jolene asked a friend, Bob Buttle, not to tell the defendant she was trying to decide whether it would be better for the baby for her to settle down with the defendant or with Mark Caccippio because, she said, the defendant would kill her if he found out.

Jolene’s sister, Danielle LaRocca, also testified in rebuttal. She provided some details of various fights the defendant had with Jolene, plus a fight which he had with Jolene’s brother, Jamie. The defendant’s jaw was broken as a result of the altercation with Jamie, and for a while the defendant held a knife, but he eventually turned the knife over to his father and then went to the hospital for treatment. Danielle next testified about a card party in 1981 during which the defendant followed Jolene into the bathroom and hit her in the face. Also, during the summer of 1983, Jolene was beaten by the defendant. Danielle did not see this beating, but she saw a scratch on Jolene’s face and “bruises around her neck.” A fourth incident related by Danielle occurred on Thanksgiving day in 1984. Danielle heard Jolene screaming upstairs, and, when Danielle ran to her sister’s aid, she observed the defendant yelling obscenities and accusing Jolene of cheating on him. The defendant at one point held his baby daughter in one arm whilé he threw objects at Jolene with his other arm. Danielle ran from the house in a “state of panic” and drove to the police department. Danielle called the police one other time in 1985 because the defendant called her “filthy names” on the telephone.

Testifying in surrebuttal, the defendant denied the substance of the State’s rebuttal testimony. He explained that the 1981 incident testified to by Kelly Hoseman was actually a fight between Jolene and a 16-year-old girl named Valerie Arrington Burroughs, whom he had brought into his house to use the telephone. Jolene grabbed Valerie, thinking she was having a romantic encounter with the defendant, and the defendant had to pull Jolene off of Valerie. The card party argument, according to the defendant, did not involve any hitting, pushing, or choking. He testified that he never choked Jolene. The Thanksgiving fight arose because Jolene thought he had stayed out too late. He related that Jolene came at him and he had to hold her down. During the scuffle, Danielle entered and grabbed him. He stated that he pushed Danielle away but did not hit her. He further testified that the baby was not in the room at the time because she was sleeping in another room with his sister, Margaret. With regard to the fight with Jolene’s brother in which his jaw was broken by a tire jack, he explained that he came home in a “daze” afterward, and at one point he held a “plastic bayonet” in his hand, but he never threatened anybody with it. His surrebuttal testimony was supported by Margaret Hernandez, Valerie Burroughs, and the surrebuttal testimony of his father, Robert Hernandez, Sr.

Following arguments of counsel, the court below sentenced the defendant to concurrent prison sentences of 80 years for his murder conviction and 30 years for his attempted-murder conviction. In the court’s opinion, an extended-term penalty was appropriate because the defendant’s behavior was “exceptionally brutal and heinous.”

The defendant first contends his 80-year extended-term sentence is excessive in light of the fact he had no prior criminal record, he pleaded guilty, and the instant offenses were provoked by a “sudden intense passion,” which is unlikely to recur. We find the sentence is not excessive.

The weight to be accorded each factor in aggravation and mitigation in setting a sentence of imprisonment depends on the circumstances of each case. (People v. Lewis (1980), 89 Ill. App. 3d 15.) As long as the court does not consider incompetent evidence, improper aggravating factors, or ignore pertinent mitigating factors, it has wide latitude in sentencing a defendant to any term within the statutory range prescribed for the offense. (People v. Brown (1990), 195 Ill. App. 3d 78.) The balance which is to be struck amongst the aggravating and mitigating factors is a matter of judicial discretion which should not be disturbed on review absent an abuse of that discretion. (People v. Perruquet (1977), 68 Ill. 2d 149.) The imposition of a sentence is an abuse of discretion only when the judgment of the trial court is manifestly unjust or palpably erroneous. People v. Anderson (1986), 112 Ill. 2d 39; Brown, 195 Ill. App. 3d at 87.

That the defendant was a first-time offender is no more than a mitigating factor which is to be considered by the court along with all the other mitigating and aggravating factors. (People v. Tatum (1989), 181 Ill. App. 3d 821.) A defendant’s lack of a prior record is not necessarily the most persuasive consideration at sentencing (People v. Edens (1988), 174 Ill. App. 3d 1033), and, in fact, the seriousness of the crime has been called the most important factor to be considered in imposing sentence (People v. Johnson (1987), 159 Ill. App. 3d 991, 1001).

Although the court clearly was cognizant of the defendant’s clean prior criminal record, it was also aware of several prior incidents which involved the defendant and physical violence. It also undoubtedly considered the exceptional brutality and heinousness of the defendant’s act to be of paramount importance in imposing the 80-year extended-term sentence. The record plainly shows the brutality of the crime.

The fact that the defendant pleaded guilty is not a statutory factor in mitigation. (Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 5—3.1.) However, charge and sentence concessions may properly be granted a defendant who enters a plea of guilty. (People v. Sivels (1975), 60 Ill. 2d 102, 104-06; A.B.A. Standards for the Administration of Criminal Justice, Standards Relating to Pleas of Guilty, §1.8, at 58 (1974).) Leniency in sentencing has been acknowledged to be available to a defendant who has admitted his guilt and shown a willingness to assume responsibility for his conduct or who has cooperated in the successful prosecution of other offenders. People v. Bergman (1984), 121 Ill. App. 3d 100.

The State argues, and we agree, that neither of those situations applies to this defendant. No other offenders were involved, and the defendant has never unqualifiedly acknowledged his responsibility for murdering Jolene. We note the 14 other counts which were nol-prossed in exchange for the defendant’s guilty pleas to murder and attempted murder represent a substantial concession to the defendant. Over and above that, the sentences imposed show the judge impliedly rejected the State’s recommendation that he impose either natural-life or consecutive sentences. In sum, we believe the record shows the mitigation value of the defendant’s guilty plea was favorably considered by the court.

We reject the defendant’s further contention that the probable existence of a diminished mental state was a strong mitigating factor. Relying on People v. McCarthy (1989), 181 Ill. App. 3d 208, he argues he may have been entitled to voluntary manslaughter instructions predicated upon the sudden, intense passion provoked in him “by the sight of the woman he loved in the arms of another man.”

In Illinois, only four situations have been recognized as engendering the type of “serious provocation” which warrants partial or incomplete exoneration for the commission of a homicide. They are: (1) substantial physical injury or assault; (2) mutual quarrel or combat; (3) illegal arrest; and (4) adultery with the offender’s spouse. (People v. Crews (1967), 38 Ill. 2d 331, 335-36.) Mere words, no matter how insulting — and including those which carry messages of adultery — are not sufficient provocation for a voluntary manslaughter. People v. Chevalier (1989), 131 Ill. 2d 66, 71-72.

In McCarthy, the victim, Adrianne Neal, and the defendant had dated since they began high school in 1974. They never married, but they had one daughter in 1978 and another in 1981. In April 1983, Adrianne and the children moved out of the apartment they shared with the defendant. On June 7, 1983, the defendant forcibly entered Adrianne’s apartment and found her and another man dressed in their underwear in bed, and he shot both of them. The man escaped, but Adrianne died as the result of five close-range shots.

On appeal from his conviction of murder and his 34-year sentence, the court agreed with the defendant that the trial judge had erred in refusing defense counsel’s tendered instructions on the offense of voluntary manslaughter. The court believed that such a verdict should be an available option even in the absence of a marital relationship and that the evidence in the case warranted the use of such an instruction. Accordingly, it reversed and remanded the cause for a new trial.

The supreme court reversed the McCarthy decision. In reversing, the supreme court did not decide whether the category of serious provocation already recognized in instances of spousal adultery should be enlarged to include unmarried persons who share a marital-type relationship. Rather, it focused on the fact that the relationship had broken off two months before the homicide occurred. In declining to fashion a rule that would permit use of the voluntary manslaughter instruction when the relationship in question has effectively ended, the court adhered to previous cases, which stated that the provocation of adultery will not warrant use of the voluntary manslaughter instruction when the spouses are already divorced. (People v. McCarthy (1989), 132 Ill. 2d 331, 341-42.) Further, the court found no evidence apart from the defendant’s own testimony that his actions were engendered by the “sudden and intense passion” required by statute. (Ill. Rev. Stat. 1983, ch. 38, par. 9 — 2(a)(1).) Rather, the court felt the defendant’s actions suggested he “was stalking the victim and intended to kill her.”

Similarly here, although Jolene and the defendant were engaged in a sexual relationship and produced a child, Jolene and the child moved out of the apartment they shared with the defendant in August or September 1985. This was about the same time Jolene began seeing Mark Caccippio. Although she and the defendant saw each other frequently after that time, talked about getting married, and slept together on occasion at several different residences, they never resumed the close relationship they shared prior to August 1985.

Additionally, as in McCarthy, the trial judge here did not believe the defendant’s acts were provoked by a sudden and intense passion, and we agree. The fatal intensity of the defendant’s desire to possess Jolene exclusively was presaged by remarks he made to his supervisor, George Manseau (that he might kill Jolene or the man if he found out she was seeing someone else) and was apparent to Jolene, as well, on the very day she was killed (when she asked Bob Kittle not to tell the defendant she was debating whether settling down with him or Mark Caccippio would be in the baby’s best interest or the defendant would kill her). Also as in McCarthy, the record shows the defendant literally stalked Jolene. The defendant’s extensive effort to locate Caccippio’s apartment, the stealthy entrance into the apartment building, the 20 minutes of eavesdropping, unscrewing of light bulbs and removal of ceiling tile in the hallway, and the violent entry into Caccippio’s apartment after the defendant believed he heard kissing and an invitation to Jolene to stay the night all confirm that his subsequent acts were not provoked suddenly but, rather, were the vengeful conclusion of his successful hunt for the self-confessed cheating woman.

We note also that although the defendant testified at sentencing that he could not remember stabbing Jolene, the record shows the defendant told the police he began stabbing her, that he “couldn’t stop,” and that he stabbed her in the face, eyes, neck and chest. This significantly undercuts the theory that he suffered a blackout during the fatal stabbing of Jolene. We see no parallel between this case and People v. Andrews (1989), 132 Ill. 2d 451, cited by the defendant in his reply brief. In Andrews, a robbery victim was shot once and killed. The defendant received an extended-term sentence of 70 years for the murder conviction. The trial court concluded that an extended term was warranted because “the murder was senseless and unresisted.” On appeal, the court noted that all murders are brutal and heinous to a certain degree and that many murdered robbery victims are defenseless when killed. Accordingly, since the shooting was not “exceptionally” brutal or heinous, an extended-term sentence was not warranted on that basis. Moreover, the court noted, the defendant had no criminal history of violence (only theft and burglary), he had not premeditated the shooting, and his expressions of remorse at sentencing were accepted by the trial judge as sincere.

In the case at bar, the court rejected the defendant’s theory that he acted under a sudden intense passion, and the manner in which Jolene’s death was accomplished stands virtually as a definition of the phrase “exceptionally brutal or heinous behavior indicative of wanton cruelty” which far outweighs the mitigating factors argued by the defendant.

In light of the evidence, we find the defendant’s 80-year extended-term sentence for the brutal murder of Jolene LaRocca is not excessive, was not an abuse of the court’s discretion and does not depart from the fundamental spirit and purpose of the law.

The defendant next contends his extended-term sentence must be vacated because the aggravating factor of the extended-term statute under which his sentence was predicated, i.e., “exceptionally brutal or heinous behavior indicative of wanton cruelty,” is unconstitutionally vague under the eighth amendment. (Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 5—3.2(b)(2); U.S. Const., amend. VIII.) He acknowledges this issue was not raised below, but he correctly cites People v. Bryant (1989), 128 Ill. 2d 448, in support of the proposition that a constitutional challenge to a statute may be raised at any time. Accordingly, this issue will not be considered waived.

As the defendant concedes, the question of the constitutionality of this aggravating factor under the eighth amendment’s proscription against cruel and unusual punishment has been considered and found to be without merit in People v. Peeples (1989), 184 Ill. App. 3d 206. The Illinois Supreme Court denied leave to appeal in Peeples subsequent to the filing of the defendant’s brief. (People v. Peeples (1989), 127 Ill. 2d 633.) Also subsequent to the filing of the defendant’s brief, this court has had occasion to consider an eighth amendment challenge to this same aggravating factor in People v. Brown (1990), 195 Ill. App. 3d 78. We concluded there that Peeples controlled, inasmuch as the defendant had not raised a proportionality challenge to his term-of-years sentence. (Brown, 195 Ill. App. 3d at 91.) In the absence of such a challenge, the eighth amendment analysis in Maynard v. Cartwright (1988), 486 U.S. 356, 100 L. Ed. 2d 372, 108 S. Ct. 1853, which was controlled by Godfrey v. Georgia (1980), 446 U.S. 420, 64 L. Ed. 2d 398, 100 S. Ct. 1759, applies only in death penalty cases and does not apply to an extended term of imprisonment. Brown, 195 Ill. App. 3d at 89.

We further determined in Brown that, even absent the qualifying age limitation present in People v. Odle (1988), 128 Ill. 2d 111, under the similarly worded death penalty statute (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 1(b)(7)) (victim “under the age of 12”), the extended-term statute was not unconstitutionally vague under the eighth amendment in light of the qualification that the offense be “indicative of wanton cruelty” as well as exceptionally brutal or heinous. (Brown, 195 Ill. App. 3d at 90-92; see also People v. Page (1990), 193 Ill. App. 3d 467; People v. Fyke (1989), 190 Ill. App. 3d 713; People v. Barnhill (1989), 188 Ill. App. 3d 299, appeal denied (1990), 129 Ill. 2d 566.) Accordingly, we conclude this issue is without merit.

The defendant’s final contention is that he should be afforded a new sentencing hearing because the trial judge was improperly influenced by the victim impact statements of Jolene’s mother, sister and father. Each of those statements tended in part to suggest that the defendant’s murder of Jolene was the cause of the subsequent suicide of Jolene’s brother, Jody.

Specifically, the victim impact statement of Jolene’s mother, Shirley LaRocca, included the following statements:

“There were many nights I sat up and tried to calm my son Jody because he was crying for his sister. He never forgave himself for not being there when she needed him most. I hope with all my heart that the two of them are together and happy at last. In the early morning hours of February 22, 1987, my son Jody committed suicide. I do put some of the blame on Robert Hernandez, Jr. [e]ven though he, himself, did not to [sic] this, he does have a part in it.
Because of finding my son’s body in my home, I had to move, causing more pressure on me, more time off work and more sorrow and grief.”

The victim impact statement of Jolene’s sister, Danielle LaRocca, included these statements:

“I welcome this opportunity to finally stand and be heard, and I would like to state that as I speak these words ***. Jody discussed his feelings with me on many occasions, and I know the loss of our sister, Jolene, disturbed him deeply as did his sense of failure and guilt ***. I do firmly believe Jolene’s death had a definite affect [sic] on Jody’s already troubled mind, and perhaps the perpetual visualization of his mutilated sister was the final torment that lead him to commit suicide on February 22, 1987.
* * *
I have never known pain so consuming as knowing that my sister is never coming back. I now feel another loss — that of my brother Jody. As we grew up, she was there on my left, he on my right, and today, I stand before you, alone.”

And, finally, the victim impact statement of Jolene’s father, Tony LaRocca, included these statements:

“Because of Bob killing Jolene, Jody didn’t care for his life or anybody. Jody is my youngest son, age 26. My three youngest, Danielle, Jody and Jolene, were very close to each other because they are a year apart. Jody took care of his sisters while growing up. Jody felt the way I feel about losing his baby sister. He started to drink heavily and getting into a lot of fights. He just didn’t care for his life or who he hurt. He was so depressed and troubled that he could not adjust to the idea of his sister murdered the way she was. He lost his job too. He was always thinking of Jolene. Life to him stopped. He got himself drunk on Saturday, February 21, 1987, [and] he came home drunk, real drunk [and] he didn’t know what he was doing that’s how drunk he was. He sat in a closet and tied a cord to the pole and the other end around his neck and being so drunk he passed out, kneeled over in his sleep and killed himself. At this moment, I feel like doing the same thing.”

In imposing sentence, the court commented that it considered the fact of Jody’s suicide “[not as] a factor in coming to the decision as to the appropriate sentence to be imposed, but I considered that fact in terms of the impact upon members of [Jolene’s] family, the way they felt, to some extent, that that may have been as a result, indirectly, at least, of the conduct of this defendant.”

The defendant acknowledges that it has been held that victim impact statements may be used in noncapital cases (People v. Scott (1989), 180 Ill. App. 3d 418; see also People v. Turner (1989), 128 Ill. 2d 540, 577-78; People v. Young (1989), 187 Ill. App. 3d 977) as opposed to capital cases, where they can result in an unfair sentencing decision because they create a constitutionally unacceptable risk that the jury may impose the death penalty in an arbitrary and capricious manner. (See South Carolina v. Gathers (1989), 490 U.S. 805, 810-11, 104 L. Ed. 2d 876, 882-83, 109 S. Ct. 2207, 2210-11; Booth v. Maryland (1987), 482 U.S. 496, 501-06, 96 L. Ed. 2d 440, 448-50, 107 S. Ct. 2529, 2533-34.) He further acknowledges that even though a judge always makes the sentencing decision in a noncapital case, judges are not totally immune from the effect of irrelevant information, and the causal connection between Jolene’s murder and Jody’s suicide was simply too tenuous for the court to consider it in imposing sentence. In support of the irrelevancy of the suicide, the defendant cites People v. Johnson (1976), 43 Ill. App. 3d 649 (the fact that a rape victim’s husband deserted her shortly after the crime was irrelevant matter). In light of the “considerable amount of mitigation” presented on his behalf during the sentencing hearing and the maximum 80-year extended-term sentence imposed, the defendant believes the judge was improperly influenced by the impact statements.

First, we note that People v. Johnson does not support the defendant’s argument of irrelevancy. In that case, the information found irrelevant was not introduced by way of a victim impact statement, nor, in fact, was it introduced during sentencing. Rather, the references to the rape victim’s husband’s desertion of her were made by the prosecutor during opening and closing arguments and direct examination of the victim at trial. (Johnson, 43 Ill. App. 3d at 659.) Such references clearly were irrelevant at the guilt phase of the proceedings.

Second, although we agree defendant’s argument of irrelevancy has some merit, we believe the record shows his sentence was not affected thereby and no new sentencing hearing is warranted.

Section 6 of the Bill of Rights for Victims and Witnesses of Violent Crime Act (Ill. Rev. Stat. 1985, ch. 38, par. 1406), which gives crime victims and members of their immediate families (Ill. Rev. Stat. 1985, ch. 38, par. 1403) the right to present a statement detailing the effect crime has had on them, was enacted by the legislature in recognition of the fact that the harm flowing from the defendant’s criminal, act affects not only the victim but the victim’s immediate family. (People v. Lewis (1990), 197 Ill. App. 3d 438.) In determining that victim impact statements were irrelevant in the unique circumstance of a capital sen-fencing hearing, the supreme court in Booth nevertheless noted that such statements, describing the “full range oí foreseeable consequences of a defendant’s actions[,] may be relevant in other criminal and civil contexts.” (Emphasis added.) Booth, 482 U.S. at 504, 96 L. Ed. 2d at 449, 107 S. Ct. at 2533.

We do not believe the suicide of the victim’s brother here was a foreseeable consequence of the defendant’s actions in murdering Jolene. However, the trial judge carefully excused from his sentencing consideration those portions of the victim’s statements which purported to attribute blame for the suicide to the defendant, retaining only those portions which directly related to the feelings and mental status of the witnesses. He also explicitly stated he did not consider the suicide as a factor in his decision as to the appropriate sentence to be imposed. We believe the judge’s comments reflect his acute awareness that the defendant’s sentence should not reflect that he caused this second tragedy in the victim’s family. The defendant’s father testified, in fact, that Jolene’s mother, Shirley LaRocca, mentioned to him the night of the suicide that Jody left a note concerning Jody’s girlfriend, Wanda. The defendant’s sister, Margaret, testified she spoke with Jolene’s mother that same night. Shirley told her that Jody left a note stating something to the effect that his girlfriend, Wanda, “was playing games with him” and “[n]ow I can be with Jolene.” Clearly, evidence of the note reveals that the reasons for Jody’s suicide were complex. Certainly, however, it also poignantly suggests Jody’s deep sense of loss after his sister’s murder.

Although we do not believe the defendant could have foreseen such a remote consequence of his conduct as Jody’s suicide, we also do not believe the defendant’s sentence was aggravated improperly by references to the suicide which were contained in the victims’ impact statements.

Accordingly, we conclude the defendant is not entitled to a new sentencing hearing.

The judgment of the circuit court of Du Page County is affirmed.

Affirmed.

INGLIS and DUNN, JJ., concur.