author: PRESIDING JUSTICE RARICK JUSTICE GOLDENHERSH,

text:
    DANIEL LOEPKER, Plaintiff-Appellant, v. EUGENE WESSELMAN et al., Defendants-Appellees.
    Fifth District
    No. 5 — 89—0853
    Opinion filed March 26, 1991.
    GOLDENHERSH, J., dissenting.
    Steven M. Wallace, of Carr, Korein, Tillery, Kunin, Montroy, Glass & Bogard, of East St. Louis, for appellant.
    Hohlt, House, DeMoss & Johnson, of Pinckneyville (Donald Bingham, of counsel), for appellees.
   PRESIDING JUSTICE RARICK

delivered the opinion of the court:

Plaintiff, Daniel Loepker, appeals from the order of the circuit court of Clinton County dismissing certain portions of his complaint seeking a declaratory judgment and order for replevin with respect to growing and/or standing crops planted by him as lessee of certain real estate. We affirm.

On May 2, 1988, Loepker entered into a lease of approximately 338 acres of farmland with Federal Land Bank of St. Louis (Federal Land Bank) as lessor. Federal Land Bank was the mortgagee in possession of the acreage and had purchased the property at a foreclosure sale. Loepker’s lease was executed during the period for redemption following the foreclosure sale. On August 4, 1988, 12 days before the expiration of the redemption period, defendants, Eugene and Patricia Wesselman, redeemed the property. Upon redemption, the Wesselmans informed Loepker they claimed all right, title and interest in and to all crops on the land. Loepker filed suit seeking injunctive relief, a declaratory judgment and an order of replevin against the Wesselmans for the crops he planted on the land. The trial court granted Loepker’s petition with respect to severed crops and ASCA payments but denied his requests pertaining to growing and/or standing crops.

Under Illinois law, growing and/or standing crops are deemed to be part of the realty to which they are attached. (Chicago Joint Stock Land Bank v. McCambridge (1931), 343 Ill. 456, 460, 175 N.E. 834, 836; Anna National Bank v. Prater (1987), 154 Ill. App. 3d 6, 17, 506 N.E.2d 769, 776.) Consequently, when a mortgagee takes possession of the premises or when a purchaser acquires title to the land through a sale upon a decree of foreclosure of a mortgage, the mortgagee or purchaser is entitled to any growing or unsevered crops on the land. (Chicago Land Bank, 343 Ill. at 460-61, 175 N.E. at 836; Anna National Bank, 154 Ill. App. 3d at 17, 506 N.E.2d at 776.) It would follow therefore that a mortgagor upon redeeming the property and reacquiring title to the land also would be entitled to any standing and/or growing crops. While this may seem fair when the mortgagor or his tenant planted the crops, such result appears harsh and inequitable when someone else, namely a tenant of the mortgagee, has sown the seeds. Loepker argues the doctrine or right of emblements remedies such a situation. Unfortunately, we cannot agree. The doctrine of emblements provides that when a tenant holds farmland for an uncertain period and the tenancy is terminated, the tenant has a right to reenter the premises and remove the crops he planted thereon during his tenancy prior to receiving notice to quit. (See Leigh v. Lynch (1986), 112 Ill. 2d 411, 415-16, 493 N.E.2d 1040, 1042; Roberts v. McAllister (1922), 226 Ill. App. 356, 359.) The key is holding the farmland for an uncertain period. When a term is fixed in time, either by the terms of the lease or by a notice terminating it at a time when the landlord has the right to end it, the tenant has no right to crops maturing after such termination unless otherwise provided for. (See Jones v. Ritter (1917), 206 Ill. App. 487, 491.) “If [a] term is certain and does not depend upon a contingency, so that at the time he sows the crop he may know that his term will not continue until he shall have reaped it, he will not be entitled to it as emblements ***.” (206 Ill. App. at 491.) Here, Loepker’s term was fixed in that his lease was subject to termination upon redemption of the property. Moreover, Loepker was aware of this possibility. (See Chicago Land Bank, 343 Ill. at 461-63, 175 N.E. at 836-37; Holt v. Reid (1867), 46 Ill. 181, 184; see also Wein v. Albany Park Motor Sales Co. (1941), 312 Ill. App. 357, 361-62, 38 N.E.2d 556, 558-59.) Consequently, Loepker has no right under the doctrine of emblements to reenter the premises to gather the unsevered crops he has sown. We are aware of language in Holt v. Reid (1867), 46 Ill. 181, which would appear to support Loepker’s position. This language, however, is dicta (see 46 Ill. at 184), and because such position conflicts with established law, we choose not to follow it.

We further believe we are supported in our position by the subsequent enactment of section 15 — 1701(g) of the Illinois Mortgage Foreclosure Law (Ill. Rev. Stat. 1989, ch. 110, par. 15 — 1701(g)). This section, which applies only to foreclosure proceedings filed after July 1, 1987, allows for leases of mortgaged real estate entered into by a mortgagee in possession or receiver to be binding upon all parties, including the mortgagor, after redemption if the lease has been approved by the court. This change in the law will in the future remedy such harsh outcomes as here. See Bernard & Thorpe, Recent Illinois Mortgage Law Changes Affecting Commercial Mortgage Lending, 76 Ill. B.J. 606, 616-17 (1988).

Lastly, we note the result here is not as harsh as it may appear at first blush. Loepker specifically contracted for the risk of redemption in his lease with Federal Land Bank to recover rent paid and expenses of planting the crop in the event of redemption and did in fact receive such payments.

For the aforementioned reasons, we affirm the judgment of the circuit court of Clinton County.

Affirmed.

CHAPMAN, J., concurs.

JUSTICE GOLDENHERSH,

dissenting:

I respectfully dissent.

In my opinion, the majority correctly states the law and the important factual situation concerning the cause when it states:

“The key is holding the farmland for an uncertain period. When a term is fixed in time, either by the terms of the lease or by a notice terminating it at a time when the landlord has the right to end it, the tenant has no right to crops maturing after such termination unless otherwise provided for. [Citation.] ‘If [a] term is certain and does not depend upon a contingency, so that at the time he sows the crop he may know that his term will not continue until he shall have reaped it, he will not be entitled to it as emblements ***.’ [Citation.] Here, Loepker’s term was fixed in that his lease was subject to termination upon redemption of the property. Moreover, Loepker was aware of this possibility. [Citations.]” (210 Ill. App. 3d at 910.)

Unfortunately, in this cause the redemption is a contingency, not a certainty. While the right of redemption is provided for by statute, there is no certainty that the party entitled to redemption will, in fact, exercise that right. The possibility of redemption, therefore, is an uncertainty or contingency which would allow appellant to maintain his interest in the growing crops on this land, given the state of the law as noted in the majority’s opinion.

I therefore would reverse the ruling of the trial court.


source: Caselaw Access Project

author: JUSTICE CHAPMAN

license: Public Domain

text:
    CATHERINE YOUNG, Indiv. and as Next Friend of Kevin Young, et al., Minors, Plaintiffs-Appellees, v. FRANK E. YOUNG et al., Defendants-Appellants.
    Fifth District
    No. 5 — 90—0136
    Opinion filed March 26, 1991.

      James L. Van Winkle and Theodore Van Winkle, both of Van Winkle & Van Winkle, of McLeansboro, for appellants.
    Alan C. Downen, of McLeansboro, for appellees.
   JUSTICE CHAPMAN

delivered the opinion of the court:

Beatrice Young and Frank Young executed a joint will on December 30,1964. The will provided in part as follows:

“We, Frank E. Young and Beatrice Q. Young, husband and wife, *** being of sound mind and memory, do hereby make, publish and declare this to be our Last Will and Testament, hereby revoking all prior wills, codicils and testamentary dispositions by us, or either of us, as follows: * * *

SECOND: We give, devise and bequeath to each other respectively, all the rest, residue and remainder of our estate, respectively, both real, personal and mixed, of whatsoever kind and nature, and wheresoever situate, of which we may die seized or possessed, respectively or to which we may be entitled to at the time of our deaths, respectively, to have and to hold same for and during the life of the survivor of us.

THIRD: After the decease of both of us it is our will, and the will of each of us, and we, and each of us, do and does direct that all the estate which we, or either of us shall own or may be entitled to at the time of our deaths, or the death of the survivor of us, both real and personal or mixed, of whatsoever kind and nature, and whereever [sic] the same may be situate, shall go and be paid over, delivered, transferred and conveyed as follows:

(a) To our son, Rex Lanier Young, the forty (40) acres of land in Carmi Township, inherited by testator, Beatrice Q. Young, from her father, Edward Questell, described as follows:

The Southeast fourth of the Northeast Quarter of Section 28, Township 5 South, Range 9 East of the Third Principal Meridian, in White County, Illinois, and containing 40 acres, more or less;

Also, in addition to said 40 acres, we give and devise to our son, Rex Lanier Young, the following described land, to-wit: A part of the Northeast fourth of the Northwest Quarter of Section 23, Township 5 South, Range 9 East of the Third Principal Meridian, in White County, Illinois, containing 36.24 acres, more or less, EXCEPT a parcel of ground 200 X 225 feet in the Northwest corner of said premises hereinafter devised to Basil Quinton Young; also

The East one-half (Vz) of all that part of Section 22, Town 5 South, Range 9 East of the Third Principal Meridian, in White County, Illinois, containing 68.03 acres, more or less, that lies North and West of the New York Central Railroad.

(b) To our son, Sydney Franklin Young, Lot No. 18, Block Two (2) of Young’s Sub-division to Carmi, Illinois, containing .50 acres, more or less; also

An undivided 1k interest in 398 acres, more or less, May-berry Township, in Hamilton County, Illinois.

(c) To our son, Julian Kent Young, the following described real estate, to-wit:

An undivided x/z interest in 398 acres, more or less, in Hamilton County, Illinois, in Mayberry Township.

(d) To our son, Basil Quinton Young, a parcel of ground and improvements thereon, described as follows:

A part of the Northeast xk of the Northwest xk of Section 23, Township 5 South, Range 9 East of the Third Principal Meridian, in White County, Illinois, described by metes and bounds as follows: Beginning at a point on the South line of State Highway Route 460 at the Northwest corner of the Northeast xk of the Northwest xk of said Section 23, running thence South to the present fence line approximately 225 feet, thence East 200 feet, thence North 225 feet to the South line of State Highway Route 460; thence West on the South line of State Highway Route 460, 200 feet to the place of beginning; also

The West xlz of all that part of Section 22, Town 5 South, Range 9 East of the Third Principal Meridian, in White County, Illinois, containing 68.03 acres, more or less, that lies North and West of New York Central Railroad. * * *

FIFTH: This joint will is made in pursuance of an agreement between us for the purpose of disposing all of our property, whether owned by us as joint tenants, as tenants in common, or in severalty, in this our Last Will and Testament.”

Beatrice Young died February 5, 1966. Her estate was fully administered, and the representative discharged from his office on January 30, 1967. Rex Young died intestate on March 4, 1989, survived by the plaintiffs in this case, his spouse, Catherine Young, and his minor children, Kevin, Lisa, and Tina. Following the death of Rex Young, Frank Young executed a new will on July 11, 1989, devising one parcel of property to Catherine Young, and the residue of his property to his sons, Basil, Julian and Sidney. In addition, Frank Young, Basil, Julian, and Sidney executed two deeds, conveying tracts I and III to Sidney Young, and conveying tract II to Basil Young. On July 28, 1989, the plaintiffs filed their cause of action to declare that the will of Beatrice Young and Frank Young was joint and mutual and, therefore, irrevocable, to establish their ownership of tracts I, II, and III, and to set aside the conveyances to Sidney Young and Basil Young as clouds upon their title. When Frank Young died November 17, 1989, plaintiffs amended their complaint to further allege that the will of Frank Young, dated July 11, 1989, was void. The trial court granted plaintiffs’ motion for summary judgment. Defendants appeal. We affirm.

The first issue is whether the will executed by Frank and Beatrice Young is a joint and mutual will. In their answer to plaintiffs’ complaint, the defendants admit the allegations contained in paragraphs one, five, and six:

“1. On the 30th day of December, 1964, the defendant, Frank E. Young, together with his wife, Beatrice Q. Young, duly made and executed their joint and mutual will ***.”

“5. The said Beatrice Q. Young died on the 5th day of February, 1966, leaving the said joint and mutual will as her last will and testament, *** the defendant, Basil Quinton Young, filed his petition for probate of the said joint and mutual will and for Letters of Administration *** and prayed that the said joint and mutual will be admitted to probate and Letters of Administration with the Will Annexed issue to the defendant, Sidney Franklin Young.”

“6. All of the defendants herein and the said Rex Lanier Young entered their appearance and Waiver of Notice on probate of said joint and mutual will of the said Beatrice Q. Young, and on the 10th day of February, 1966, the said joint and mutual will was admitted to probate as and for the Last Will and Testament of the said Beatrice Q. Young, and no appeal was taken by any of the heirs, devisees or legatees of the said Beatrice Q. Young from the said order admitting the said joint and mutual will to probate.” (Emphasis added.)

An admission in an answer is binding on the party making it and, as to such party, it is conclusive as to the admitted facts. (Severy v. McDougall (1913), 259 Ill. 272, 273, 102 N.E. 407, 408; Western Life Insurance Co. v. Chapman (1975), 31 Ill. App. 3d 368, 372, 334 N.E.2d 806, 809.) While the admissions might establish a joint and mutual will by themselves, we have examined the record and find that the evidence establishes that it was a joint and mutual will.

A joint and mutual will is a single testamentary instrument which contains the wills of two or more persons. It is executed jointly and disposes of property owned in severalty, in common, or jointly by the testators. (Rauch v. Rauch (1983), 112 Ill. App. 3d 198, 200, 445 N.E .2d 77, 79, citing Bonczkowski v. Kucharski (1958), 13 Ill. 2d 443, 449, 150 N.E.2d 144, 148.) A joint and mutual will must be executed pursuant to a contract between testators requiring the survivor of them to dispose of the property in accordance with the will’s provisions. The joint and mutual will may itself comprise the contract. (In re Estate of Schwebell (1985), 133 Ill. App. 3d 777, 782, 479 N.E.2d 500.) The mutual promises of the husband and wife are sufficient consideration to support the agreement to make a joint will with reciprocal provisions. (Curry v. Cotton (1934), 356 Ill. 538, 547, 191 N.E. 307, 311.) There is no disagreement that the will at issue is a joint will. The question remains whether the instrument is a joint and mutual will.

It has long been recognized in Illinois that there are five common characteristics of a joint and mutual will:

‘First, we look for the label the testators have assigned to the will — whether they refer to it as their joint and mutual will. [Citation.]

Second, we look for reciprocal provisions in the will— whether the testators made a disposition of his or her entire estate in favor of the other. [Citation.]

Third, we look for a pooling of the testators’ interests. In a joint and mutual will the testators pool all of their interests— whether owned jointly, in common, or severally — into one joint fund. [Citation.]

Fourth, we look for a common dispositive scheme under which the parties dispose of the common fund by bequeathing it to their heirs in approximately equal shares. [Citation.]

Fifth, we look for the use by the testators of common plural terms such as “we” and “our” as further evidence of the testators’ intent to make a joint and mutual will. [Citation.]’ ” In re Estate of Schwebel (1985), 133 Ill. App. 3d 777, 783-84, 479 N.E.2d 500, 505, quoting Rauch v. Rauch (1983), 112 Ill. App. 3d 198, 201, 445 N.E.2d 77, 80.

As to the first trait, it is only in paragraph fifth of the will that the parties refer to the instrument as their “joint will.” None of the other paragraphs of the will include the word “joint” in describing the instrument. However, where the sole exception of meeting the five criteria is the label, the trial court is not precluded from finding that the instrument is a joint and mutual will. In re Estate of Schwebel, 133 Ill. App. 3d at 784, 479 N.E.2d at 505.

Second, the will contains reciprocal provisions, as evident in paragraph second of the will:

“We give, devise and bequeath to each other respectively, all the rest, residue and remainder of our estate, respectively, *** to have and to hold same for and during the life of the survivor of us.”

Third, Frank and Beatrice Young pooled their interests into a common fund. As stated in the defendants’ brief, and uncontested by the plaintiffs, as of the date the will was executed, Beatrice Young owned in fee simple, tract I; Frank Young owned tracts II and III. The remaining described real estate in the will was owned by Frank and Beatrice Young, or was owned by Beatrice Young, the above-named defendants, and Rex Young, jointly. The will disposes of all of the estate of both testators.

Fourth, the common fund of assets is disposed of by a common dispositive scheme in which each of the four children receives virtually an equal share in the real property owned by the testators. The estate is distributed without regard to who owned it. As directed under the will, the testators' four children also receive an equal share in the residue of the estate.

Fifth, the testators used the terms “we” and “our” throughout the entire will.

Based on the existence of the five criteria in the will at issue, we are persuaded that the trial court was correct in concluding that it was intended to be joint and mutual. The case requires further discussion, however, because the defendants argue that in order to sustain the will as a joint and mutual will, it is necessary that the will be effective to pass the property of the deceased testator, and that distribution of the property must not be suspended until after the death of the last testator. Defendants cite Bonczkowski v. Kucharski (1958), 13 Ill. 2d 443, 150 N.E.2d 144, as support for their position that the will is not joint and mutual, because its language postpones distribution of the testators’ property until after the death of both testators.

In Bonczkowski, the court held that the joint instrument was ineffective at the death of the first testator to transfer any interest in the jointly owned property. The court found that the whole of the estate passed to the surviving joint tenant:

“Because the joint instrument provides that it is not to be effective until after the death of both testators, and because neither the instrument nor the real property involved was of the character that would permit a separation of estates and probate at the death of each maker, it is our conclusion that the instrument was not the valid will of either maker.” (Bonczkowski, 13 Ill. 2d at 451, 150 N.E.2d at 149.)

Unlike the instrument in Bonczkowski, it is undisputed that the joint will was admitted to probate upon the death of Beatrice Young, and her estate was fully administered. Since the original instrument of Beatrice and Frank Young did allow for probate at the death of each testator, we find that the trial court did not err in finding that the will was joint and mutual.

Defendants next argue that upon the death of Beatrice Young, title to the real estate described in the will did not vest in the named devisees. Defendants cite various provisions of the will in support of their argument that the interests to be conveyed under the will were contingent. For instance, defendants contend that provision third of the will postponed distribution of any interest to the children until after the death of both testators. Although the language in the joint and mutual will does not expressly state that the devisees have a vested interest in the real estate upon the death of one of the testators, it is axiomatic that the contract in a joint and mutual will becomes irrevocable on the death of the first testator. At this time, a life estate is created in the surviving testator and the third-party beneficiaries receive a gift over. (Rauch, 112 Ill. App. 3d at 202, 445 N.E.2d at 81, citing First United Presbyterian Church v. Christenson (1976), 64 Ill. 2d 491, 356 N.E.2d 532.) The interests of the beneficiaries vest on the death of the first testator and not on the death of the surviving testator. In re Estate of Knight (1989), 178 Ill. App. 3d 777, 779, 533 N.E.2d 949, 951.

Defendants also argue that if the intent of the testators as to provision first of the will is to be carried out, then the interest of Rex Young must be contingent. Provision first reads:

“It is our will and we direct that all of our debts and funeral expenses of us, or either of us, be paid as soon as possible after our deaths, respectively.”

Defendants argue that Rex Young’s interest could not vest at the time of Beatrice Young’s death because it was subject to total defeat and contingent upon satisfaction of all prior claims against the testators’ estate.

Section 18 — 14 of the Probate Act of 1975 (Ill. Rev. Stat. 1989, ch. II01/2, par. 18 — 14) provides in part:

“All the real and personal estate of the decedent and the income therefrom *** are chargeable with the claims against the estate, expenses of administration, estate and inheritance taxes and legacies without distinction ***. *** [T]here is no priority as between real and personal estate ***.”

It is clear that an otherwise vested interest is subject to the debts of the estate and can be defeated by a sale to pay debts. The devisee acquires a vested, but not an absolute, interest in the property. (Peters v. Peters (1950), 342 Ill. App. 270, 277, 96 N.E.2d 369, 372.) Based on the foregoing, we find that the interest of Rex Young vested upon Beatrice Young’s death.

Defendants next argue that the interest of Rex Young lapsed as of the death of Frank Young, since Rex Young predeceased Frank Young. Under the antilapse statute (Ill. Rev. Stat. 1989, ch. 1101/2, par. 4 — 11), in the absence of an express provision to the contrary, a legacy to a descendant of a testator who predeceases the testator and leaves no descendants lapses and passes as part of the residue. We find that the antilapse statute does not apply in the instant case. Under a joint and mutual will, the death of the first testator determines whether the legacy lapses because the interest of the beneficiaries vests, not on the death of the surviving testator, but on the death of the first testator. See Rauch, 112 Ill. App. 3d at 202, 445 N.E.2d at 81.

The testators’ surviving children next argue that Frank Young was entitled to revoke his will at any time. Defendants’ argument is premised on their belief that the will is not a joint and mutual wiH. We have already determined that the testamentary instrument at bar is a joint and mutual will. Under a joint and mutual will, the interests of the beneficiaries vest on the death of the first testator. Thereafter, the survivor is estopped from disposing of the property other than as contemplated in the will. (Schwebel, 133 Ill. App. 3d at 782-83, 479 N.E.2d at 504; Rauch, 112 Ill. App. 3d at 200, 445 N.E.2d at 79-80.) We find that Frank Young was estopped from revoking the joint and mutual will by making a new will, and, therefore, the trial court did not err in finding that Frank Young’s will dated July 11,1989, was null and void.

Likewise, Frank Young was estopped from conveying more than his life estate in the realty. The contract contained within a joint and mutual will becomes irrevocable on the death of the first testator. At that time, a life estate is created in the surviving testator. In the absence of an express grant of such authority in the will under which the life estate was created, a life tenant is without power to convey the fee to real estate by sale, inter vivos gift or appointment. (Rauch, 112 Ill. App. 3d at 202, 445 N.E.2d at 80; First United Presbyterian, 64 Ill. 2d 491, 356 N.E.2d 532.) Frank Young was bound by the joint and mutual will after the death of Beatrice Young. He could not thereafter convey more than his life estate in the realty bequeathed in the will.

In light of the foregoing, we find no cause for reversal, and the judgment of the circuit court of White County is affirmed.

Affirmed.

RARICK, P.J., and GOLDENHERSH, J., concur.

      For purposes of this opinion, the three parcels of realty conveyed to Rex Young will be referred to as tracts I, II, and III, respectively.


author: JUSTICE LEWIS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff, v. JULIA CAMDEN, Defendant-Appellee (Jon C. Anderson, Appellant).
    Fifth District
    No. 5 — 89—0300
    Opinion filed March 26, 1991.

      Jon C. Anderson, State’s Attorney, of Robinson (Kenneth R. Boyle, Stephen E. Norris, and Raymond F. Buckley, Jr., all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for appellant.
    No brief filed for appellee.
   JUSTICE LEWIS

delivered the opinion of the court:

This is an appeal from an order of the circuit court of Crawford County sanctioning appellant Jon C. Anderson, the State’s Attorney of Crawford County, for ex parte communications with defendant’s physicians and fining him $1. For the reasons which follow, we vacate.

In July of 1983, Julia Camden was charged with aggravated battery, armed violence, and attempted murder as a result of a shooting that occurred in a Crawford County tavern. The defendant raised the defense of insanity. Ms. Camden’s trial ended when the trial court, sua sponte, declared a mistrial. Camden’s counsel subsequently filed a motion to dismiss on the ground of double jeopardy. When this was denied by the trial court, he filed an interlocutory appeal pursuant to Supreme Court Rule 604(f) (134 Ill. 2d R. 604(f)). A majority of this court reversed and remanded the cause with directions that the defendant be discharged. (People v. Camden (1986), 140 Ill. App. 3d 480, 488 N.E.2d 1082.) The Illinois Supreme Court granted the State’s petition for leave to appeal and reversed and remanded the decision of this court. People v. Camden (1987), 115 Ill. 2d 369, 504 N.E.2d 96.

After remand the case was set for trial in February 1989. Prior to trial, on February 16, 1989, the State filed a supplemental response to motion for production, listing as potential witnesses Dr. Dean J. Pelley of Robinson, Illinois, and Dr. Leonard J. Green, III, of Terre Haute, Indiana. On February 22, 1989, after the jury had been selected and sworn, counsel for the defendant filed motions to bar the testimony of these two physicians on the ground that the State’s Attorney had conducted an ex parte interview with them without the defendant’s consent, in violation of section 8 — 802 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 8 — 802), governing the physician-patient privilege.

In opposition to this motion, the State’s Attorney told the court that he learned of these two witnesses through discovery material furnished by the defendant. He stated that his conversation with both doctors was limited to their availability to testify. With respect to his conversation with Dr. Pelley, the State’s Attorney stated that Dr. Pelley told him that he was going to be in trial as a defendant in a case in the Federal district court in Benton. He added that Dr. Pelley informed his (State’s Attorney’s) secretary that there was a “progress note” at the Crawford County Hospital, a copy of which Dr. Pelley sent to the State’s Attorney. The State’s Attorney represented that he provided a copy of this document to defense counsel. Regarding the relevance of the testimony of Dr. Pelley, the State’s Attorney explained that Dr. Pelley saw the defendant at the Crawford Memorial Hospital at 8 a.m. on July 22, 1983, the day after the shooting, and discharged her from the hospital after examining her at that time. The State’s Attorney advised the court that Dr. Pelley, in his discharge summary, stated that defendant was oriented as to date, time, place, and person. The State’s Attorney maintained that this determination was pertinent to the defendant’s defense of insanity.

With respect to his conversation with Dr. Green, the State’s Attorney stated that he inquired as to his availability for trial and asked him if the report which he (the State’s Attorney) received in discovery was the pertinent report. Regarding the relevance of the testimony of Dr. Green, the State’s Attorney explained that Dr. Green’s examination of the defendant occurred just 13 days prior to the offense.

In ruling on the defendant’s motion to prohibit the doctors from testifying, the court ordered that their testimony be limited to the content of their reports. The court expressly barred Dr. Pelley from testifying about the progress note or about anything which counsel for Julia Camden had not given to the State. The court stated that neither witness would be allowed to express an opinion concerning the defendant’s sanity if that was not addressed in his report.

During trial, Dr. Leonard J. Green, III, testified that on July 8, 1983, he saw the defendant at his clinic in Terre Haute, Indiana. The defendant, who had been referred by Dr. Pelley, wanted a tubal reanastomosis, or reattachment of her fallopian tubes. A physical examination revealed that the defendant was normal.

Dr. Dean Pelley testified that he examined the defendant at 8 a.m. on July 22, 1983, at the Crawford Memorial Hospital in Robinson, Illinois. He stated that the defendant understood his questions and that she recognized him. She knew who she was and where she was; she was oriented as to date, time, place, and person. He testified that the defendant was concerned that, as a result of the shooting incident, her former husband would obtain custody of her children. Dr. Pelley stated that he discharged the defendant at 8:21 a.m. on July 22,1983.

On February 27, 1989, the trial judge made the following docket entry:

“Outside presence of jury, State’s Attorney is disciplined for ex parte communication with defendant’s treating physicians and fined the sum of $1.00. Judgement entered; execution stayed.”

On appeal appellant, Jon C. Anderson, contends: (1) his actions in contacting defendant’s physicians regarding their availability to testify did not constitute an act of contempt; (2) even if he had talked to the defendant’s physicians about her sanity, it would not have constituted contempt in the absence of a court order; and (3) even if his conduct constituted contempt, he still was entitled to a hearing.

We decline to address appellant’s contentions since we find that appellant has misconstrued the import of the trial judge’s docket entry order of February 27, 1989. Underlying appellant’s arguments is the premise that this docket entry order constitutes a finding of indirect criminal contempt by the trial judge. We do not share this conception. The record reveals the following preliminary remarks made by the trial judge on February 27, 1989, before he made the docket entry referred to above.

“THE COURT: Gentlemen, during the course of the arguments on the motion to exclude the testimony of the doctors, due to the alleged ex parte communication, Mr. Johnson [defense counsel] expressed a concern regarding his responsibilities in view of People vs. Himmel. D.R. 1 — 103 [Rule 1 — 103 of the Code of Professional Responsibility (107 Ill. 2d R. 1 — 103)] includes, among counsel’s prerogatives or alternatives, reporting to a tribunal which is empowered to act on such violation. The Canons of Judicial Conduct, Rule 63 — B(3) [Supreme Court Rule 63(B)(3) (107 Ill. 2d R. 63(B)(3))] provides that a Judge shall take or initiate appropriate disciplinary measures, and those have historically been construed to include disciplining with prudence, where appropriate, for actions occurring in the course of the case.

Therefore, all my — assuming jurisdiction is not binding as to any further reporting you feel compelled to make, it is my opinion that you have complied with any ethical duty by reporting it to the Court. And given the fact that this is a relatively new point of law, as far as an applicability in criminal cases, and, frankly, the possibility the jury may find the Defendant not guilty and preclude review of this, I am going to fine the Office of the State’s Attorney one dollar as a sanction for this, which provides an appealable order for a neutral review of this issue independent of all the other issues in this case, should the parties feel the need to pursue it.”

As noted earlier, the trial judge, prior to trial, sanctioned the State’s Attorney for his ex parte communications with defendant’s physicians by barring certain testimony that the physicians might give concerning defendant’s sanity. After the trial was over, in an effort to ensure that the State’s Attorney would be able to appeal his pretrial ruling barring portions of the physician’s testimony, the trial judge fined the State’s Attorney the nominal sum of $1. By doing this it was apparently the judge’s intention to provide an avenue by which the State could appeal should the jury acquit the defendant and thereby preclude any State appeal. We find this $1 fine to be a sanction imposed by the judge pursuant to Supreme Court Rule 63 (134 Ill. 2d R. 63) and not a finding of indirect criminal contempt as alleged by the State’s Attorney.

Supreme Court Rule 63 addresses judicial duties and administrative responsibilities and paragraph (B)(3) of that rule provides:

“A judge having knowledge of a violation of these canons on the part of a judge or a violation of Rule 1 — 102 of the Code of Professional Responsibility on the part of a lawyer shall take or initiate appropriate disciplinary measures.” (134 Ill. 2d R. 63(B)(3).)

It was pursuant to this rule that the trial judge sanctioned the State’s Attorney for his ex parte communications by fining him $1. There was no finding of contempt. After reviewing the record, we find that this sanction ordered by the trial judge was an impermissible infringement on the exclusive power of the supreme court, acting through the Attorney Registration and Disciplinary Commission (ARDC), to adjudicate attorney disciplinary matters. Disciplinary proceedings and sanctions for unprofessional conduct are exclusively within the province of the supreme court. (In re Harris (1982), 93 Ill. 2d 285, 291-92, 443 N.E.2d 557, 559; Schnack v. Crumley (1982), 103 Ill. App. 3d 1000, 1007, 431 N.E.2d 1364, 1369.) The ARDC acts as the agent of the supreme court in administering the disciplinary functions that have been delegated to it. (In re Mitan (1979), 75 Ill. 2d 118, 123-24, 387 N.E.2d 278, 280.) Attorney disciplinary proceedings are conducted by the ARDC completely separate and apart from the judicial proceedings in which the attorney .misconduct was alleged to have occurred. (Reed Yates Farms, Inc. v. Yates (1988), 172 Ill. App. 3d 519, 530, 526 N.E.2d 1115, 1122.) Accordingly, any sanctions based on alleged professional misconduct must be addressed by the ARDC and not by the trial court, as in the instant case. Schnack, 103 Ill. App. 3d at 1007, 431 N.E.2d at 1369.

A recent case somewhat similar to the instant one, in that the trial court relied on Supreme Court Rule 63 to sanction an attorney for violating the Code of Professional Responsibility, is Freeman v. Myers (1989), 191 Ill. App. 3d 223, 547 N.E.2d 586. In Freeman the trial court ordered attorney fees to plaintiff’s counsel on the basis that defense counsel intentionally violated the trial court’s ruling in limine thereby causing a mistrial. The trial court cited portions of Supreme Court Rule 63 and Rule 1 — 102 of the Code of Professional Responsibility (107 Ill. 2d R. 1 — 102) as supporting its action of imposing attorney fees. The appellate court, disagreeing with this interpretation, stated in pertinent part:

“[T]hese provisions do not grant the trial court such authority. Rule 63 addresses judicial duties and provides a judge should maintain order and decorum in proceedings before him. Rule 1 — 102 pertains to attorney misconduct and provides a lawyer shall not engage in conduct prejudicial to the administration of justice. These provisions provide for disciplinary measures to be taken by the Attorney Registration and Disciplinary Commission and do not provide for the trial court to order its own independent sanctions. The trial court erred in its interpretation.” (191 Ill. App. 3d at 227, 547 N.E.2d at 589.)

While noting that the trial court was justified in finding defense counsel’s violation of the court’s order in limine to be intentional, the appellate court remarked that in such a situation the trial court “may have been able to fashion appropriate relief based on contempt.” (191 Ill. App. 3d at 228, 547 N.E.2d at 589.) However, there was no finding of contempt and the appellate court in Freeman found that plaintiff was not entitled to attorney fees in the absence of statutory authority or an agreement. 191 Ill. App. 3d at 228, 547 N.E.2d at 589.

In the instant case, the trial judge made reference to the Code of Professional Responsibility and Supreme Court Rule 63 when he imposed the $1 fine on the State’s Attorney. As we noted above, there was no finding of contempt in this case, despite the argument to the contrary by the State’s Attorney. The trial judge did not have the authority to sanction the State’s Attorney by fining him and, accordingly, for the reasons stated above, the $1 sanction imposed on Jon Anderson, State’s Attorney of Crawford County, is vacated.

Vacated.

RARICK, P.J., and HARRISON, J., concur.


author: JUSTICE LEWIS JUSTICE GOLDENHERSH,

text:
    JUNE DAYMON, Plaintiff-Appellant, v. HARDIN COUNTY GENERAL HOSPITAL, Defendant-Appellee.
    Fifth District
    No. 5 — 89—0839
    Opinion filed March 26, 1991.

      GOLDENHERSH, J., dissenting.

      Douglas N. Dorris, of Harris & Lambert, of Marion, for appellant.
    Donald V. Ferrell, of Jelliffe, Ferrell & Morris, of Harrisburg, for appellee.
   JUSTICE LEWIS

delivered the opinion of the court:

The plaintiff, June Daymon, sought to recover damages for past and future lost earnings and fringe benefits as a consequence of her “wrongful discharge” by the defendant, Hardin County General Hospital. Central to this dispute is the defendant’s handbook, “Personnel Policies and Procedures,” a copy of which is attached to and made a part of plaintiff’s complaint. In a “motion attacking the complaint,” the defendant urged that the plaintiff was an employee terminable at will by virtue of a contract disclaimer with which the handbook concludes. The disclaimer states:

“This handbook is not intended to create any sort of contract of employment. Rather, it is simply intended to generally describe Hardin County General Hospital and its present policies and procedures. These policies and procedures will be revised at least every two years or as the governing board deems necessary.”

As requested by the defendant, the trial court entered judgment on the pleadings in favor of the defendant and against the plaintiff. The plaintiff appeals.

In her complaint the plaintiff, a nurse, alleged that on September 21,1988, defendant discharged her

“by written notice for the stated reason that ‘you left your work station on a shift you were scheduled to work on 09-16-88’, citing the policy on Page 4 of the Personnel Policies and Procedures handbook dated April 1, 1988, which states, ‘You are expected to be at your assigned job punctually at the starting time and to remain in your job until your proper quitting time, unless a bonafide [sic] emergency arises. Failure to do so is an automatic reason for dismissal.’ ”

Attached to and made a part of the complaint is a copy of the notice of discharge plaintiff received from the defendant’s administrator:

“This document is to serve as your official notice of discharge from employment at Hardin County General Hospital. The reason for discharge is that you left your work station on a shift you were scheduled to work on 09-16-88. The Personnel Policies and Procedures dated April 1, 1988[,] and in effect at this time state that ‘You are expected to be at your assigned job punctually at the starting time and to remain in your job until your proper quitting time, unless a bonafide [sic] emergency arises. Failure to do so is an automatic reason for dismissal.’ ”

The plaintiff alleged that, during the course of her employment, the custom and practice of the defendant and its employees “was to regard and to rely upon this Personnel Policies and Procedures handbook as setting forth the conditions and terms of employment.” The plaintiff alleges that the defendant’s discharge of her was “without just cause and in violation of the policies and procedures set forth” in the handbook. In her complaint she cited certain provisions of the handbook concerning absenteeism by employees, record of written warning to employees, and termination and discharge of employees.

Under Illinois law a written or oral employment contract that does not specify the term of employment creates an employment that endures at the will of the parties and is terminable by either the employer or the employee at any time without cause, subject only to independent contractual or statutory provisions. (Hogge v. Champion Laboratories, Inc. (1989), 190 Ill. App. 3d 620, 546 N.E.2d 1025.) In Illinois an employment relationship at will can be terminated for “ ‘a good reason, a bad reason, or no reason at all.’ ” (Criscione v. Sears, Roebuck & Co. (1978), 66 Ill. App. 3d 664, 669-70, 384 N.E.2d 91, 95, quoting Loucks v. Star City Glass Co. (7th Cir. 1977), 551 F.2d 745, 747.) Where an employee is hired for an unspecified period of time, a presumption arises that the employee’s status is that of an employee at will; that presumption, however, can be rebutted by a showing that the parties contracted otherwise. Duldulao v. Saint Mary of Nazareth Hospital Center (1987), 115 Ill. 2d 482, 505 N.E.2d 314; Hogge, 190 Ill. App. 3d 620, 546 N.E.2d 1025.

In Duldulao the supreme court held that an employee handbook or other policy statement creates enforceable contractual rights if the traditional requirements for contractual formation are present.

“First, the language of the policy statement must contain a promise clear enough that an employee would reasonably believe that an offer has been made. Second, the statement must be disseminated to the employee in such a manner that the employee is aware of its contents and reasonably believes it to be an offer. Third, the employee must accept the offer by commencing or continuing to work after learning of the policy statement. When these conditions are present, then the employee’s continued work constitutes consideration for the promises contained in the statement, and under traditional principles a valid contract is formed.” (Duldulao, 115 Ill. 2d at 490, 505 N.E.2d at 318.)

All three conditions set forth in Duldulao must be present to create enforceable contract rights. Koch v. Illinois Power Co. (1988), 175 Ill. App. 3d 248, 529 N.E.2d 281.

The handbook in Duldulao did not contain a disclaimer. Although a contract claim may be difficult to maintain when the employee handbook expressly provides that the employee relationship is at will, a manual of personnel policies and procedures can create enforceable contractual rights despite the presence of a disclaimer. (Perman v. ArcVentures, Inc. (1990), 196 Ill. App. 3d 758, 554 N.E.2d 982.) In Perman the court held that as a matter of law the plaintiff’s employment could not be terminated at will insofar as the manual provided for an established grievance procedure for an unfavorable decision affecting employment. The handbook in Perman contained the following introductory statements:

“ ‘The Personnel Policies and Procedures which follow, and which may be modified from time to time by the Medical Center, are meant to provide managers and supervisors with guidance as to how the above-discussed employee relations policy of the Medical Center should be implemented. The Personnel Policies and Procedures do not constitute, modify, or otherwise alter the terms and conditions of employment of any Medical Center employee, do not limit or restrict the right of management to terminate or otherwise discipline any Medical Center Employee, and do not constitute an employment contract with any Medical Center Employer.’ ” Perman, 196 Ill. App. 3d at 762, 554 N.E.2d at 985.

In Bennett v. Evanston Hospital (1989), 184 Ill. App. 3d 1030, 1031, 540 N.E.2d 979, 980, the employee handbook there contained a disclaimer stating that the Hospital’s Employee Handbook “ ‘is not intended to create a contract of employment.’ ” (Emphasis omitted.) The handbook in Bennett contained no provision requiring just cause as a basis for dismissal. On review the court determined that no contract could exist and that the trial court, having so found, properly dismissed the cause of action.

In Hogge the handbook in question concluded with the following statements:

“ ‘This handbook serves only to outline Champion’s major employment policies. It is not intended, and shall not be considered all inclusive or construed as an employment contract. This handbook reflects the company policy at the time of publication. The Company, of course, may improve or change these policies and reserves the right to do so at any time.’ ” Hogge, 190 Ill. App. 3d at 623, 546 N.E.2d at 1027.)

The handbook in Hogge stated further that the 10 reasons listed under major offenses pertaining to disciplinary action up to and including discharge were “ ‘by way of illustration and [were] not to be deemed to exclude management’s right to discharge employees for any other reason.’ ” (Hogge, 190 Ill. App. 3d at 622, 546 N.E.2d at 1027.) We concluded in Hogge that such a statement could not reasonably suggest that an employee could be discharged only for engaging in conduct described and proscribed by one of the 10 items enumerated therein.

The question of the existence of a contract is a matter of law for determination by the court. (Bennett, 184 Ill. App. 3d 1030, 540 N.E.2d 979.) The court determines the meaning of contractual terms as a matter of law. (Trustees of Schools of Township U2, Cook County v. Schroeder (1971), 2 Ill. App. 3d 1009, 278 N.E.2d 431.) A motion for judgment on the pleadings is a type of motion “with respect to pleadings” as provided for by section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 615), subsection (e) of which states that “[a]ny party may seasonably move for judgment on the pleadings.” Such a motion raises the issue of the sufficiency of the pleadings. (Baillon v. S.S. Kresge Co. (1972), 4 Ill. App. 3d 82, 277 N.E.2d 719.) Upon consideration of a motion for judgment on the pleadings, the court is to ascertain whether there is an issue of material fact presented by the pleadings, and if there is no such issue, the question is which party is entitled to judgment. (Baillon, 4 Ill. App. 3d 82, 277 N.E.2d 719.) The only matter to be considered in ruling on such a motion is the allegations of the pleadings. (Seefeldt v. Millikin National Bank (1985), 137 Ill. App. 3d 841, 485 N.E.2d 30.) The question thus presented is whether those pleadings construed most strongly against the movant nevertheless show that there is no factual issue which, if determined against the movant, would prevent entry of judgment on behalf of the movant. Seefeldt, 137 Ill. App. 3d 841, 485 N.E.2d 30.

A copy of the handbook dated April 1, 1988, having been attached to and made a part of the complaint by reference, we examine it. As the plaintiff alleged, the handbook provides concerning “WORK SCHEDULES,” “You are expected to be at your assigned job PUNCTUALLY at the starting time and to remain in your job until your proper quitting time, unless a bonafide [sic] emergency arises. Failure to do so is an automatic reason for dismissal.” With regard to “ABSENCE,” the handbook provides in part, “You are requested to notify your supervisor at least eight hours prior to an absence so that arrangements can be made for someone to cover your position during your absence. Excessive or continued absenteeism or failure to notify your supervisor on the first day of absence will be considered just cause for dismissal.” With respect to “TERMINATION AND DISCHARGE,” the handbook provides as follows:

“Upon termination of employment if the employee gives proper two-week written notice of resignation, the accrued vacation days and personal days will be paid on the next regular pay day at straight time at base rate. If the employee fails to give proper notice or is discharged for just cause, they [sic] forfeit their accrued personal days. No severance pay other than accrued days (listed above) will be paid any employee upon termination. Some of the reasons for discharge are: * * *
10. Missing consecutive scheduled working days without the required notice to the supervisor (considered voluntary termination). * * *
21. Other situations which the Administrator deems serious enough for immediate dismissal.”
Concerning “GRIEVANCES” the handbook provides as follows:
“1. DEFINITION OF A GRIEVANCE—
A grievance shall be considered to be any complaint or dissatisfaction arising from an interpretation, application, or claimed violation of any provisions of hospital policies, rules, or regulations and may be submitted to arbitration in the following manner:
A. The supervisor should attempt to anticipate and prevent causes of grievances. Employees, however, have the right to seek assistance in solving on-the-job problems via the following procedure:
1. Any employee with a grievance should discuss the grievance ORALLY with his/her immediate supervisor. If the grievance is not satisfied, the employee should give his supervisor WRITTEN notice within five (5) days (the term ‘day’ means his/her working days — Monday through Sunday), that he/she is appealing to the Administrator. This appeal must be clearly stated, dated and signed by the employee. The Administrator will then meet with the employee within six (6) days of the receipt of the appeal. The Administrator must, in turn, give a written answer to the employee’s grievance within ten (10) days of the meeting with the employee. The answer, also, must be clearly stated, dated, and signed. If the grievance is still unresolved, it may be submitted to the Board of Directors upon the employee’s written notification to the Administrator that he or she desires this step be taken. This notice must be made within five (5) days after receipt of the Administrator’s written answer to the grievance. This, also, must be clearly stated, dated, and signed.”

Like the handbook in Bennett, the instant one contains no provision, express or implied, requiring just cause as a basis for dismissal. Although a grievance procedure is set forth, it is not clear that this procedure, relating to assistance for employees in solving “on-the-job problems,” applies to matters relating to termination and discharge. This grievance procedure differs from the one provided in the handbook in Perman as the means of pursuing the “right of appeal” of an employee “from an unfavorable decision affecting his employment.” (Perman, 196 Ill. App. 3d at 762-63, 554 N.E.2d at 985.) In addition, as in Hogge, the actions calling for disciplinary action that are set forth in the handbook under “TERMINATION AND DISCHARGE” are commonsense enumerations of actions any reasonable at-will employee in such a setting would understand generally to call for disciplinary action. Furthermore, the provisions relating to termination and discharge might be construed to mean that an employee who gives proper notice of resignation or is terminated without just cause does not forfeit his or her accrued personal days. Although the employer has indicated in its official notice of discharge to the plaintiff that she has been discharged for just cause, we think that, quite apart from any considerations posed by the presence of the disclaimer, the language of the handbook does not contain a promise clear enough that an employee would reasonably believe an offer has been made not to discharge him or her except for just cause. Since the first of the three requirements for contractual formation set forth in Duldulao is absent here, the instant employee handbook does not create enforceable contractual rights, and the trial court properly entered judgment on the pleadings in favor of the defendant and against the plaintiff.

We note that the plaintiff does not plead that the terms of the alleged contract, as set forth in the handbook, were altered by subsequent oral agreement to prohibit termination for other than just cause.

Affirmed.

HOWERTON, J., concurs.

JUSTICE GOLDENHERSH,

dissenting:

I respectfully dissent.

The majority opinion accurately states the law applicable to this situation, but in my opinion erroneously affirms the trial court in its misapplication of the law. When one reviews the majority’s opinion and compares the disclaimer of contract in the instant case with that in Perman v. ArcVentures, Inc. (1990), 196 Ill. App. 3d 758, 554 N.E.2d 982, cited by the majority, one finds that the disclaimer in the Perman case was much stronger, yet enforceable contractual rights concerning discharge procedures were found. The majority opinion also notes ambiguity in the application of grievance procedures in resolving termination and discharge matters, stating, “[a]lthough a grievance procedure is set forth, it is not clear that this procedure, relating to assistance for employees in solving ‘on-the-job problems,’ applies to matters relating to termination and discharge.” (210 Ill. App. 3d at 934.) Applying the well-settled rule that an ambiguity will be resolved against the drafter of the instrument, in this case the hospital which unquestionably is in a superior bargaining position, and further given the disclaimer that does not reach the Perman standard and the ambiguity noted above, I believe that this matter was erroneously decided. Since all three requirements of Duldulao are present here, this cause should be reversed and remanded to the trial court for further proceedings.


text:
      In re MARRIAGE OF NANCY J. MOBLEY, Petitioner-Appellant, and CRAIG A. MOBLEY, Respondent-Appellee.
    Fifth District
    No. 5 — 89—0641
    Opinion filed March 27, 1991.
    John A. Clark, of Croegaert, Clark & Hough, Ltd., of Olney, for appellant.
    Charles Bradley Vaughn, of Vaughn & Vaughn, of Olney, for appellee.
   JUSTICE CHAPMAN

delivered the opinion of the court:

Nancy and Craig Mobley were married while both were in the United States military service. They were stationed at various places and have had a history of marital discord. In 1980, Nancy filed a petition for dissolution of marriage in Lawrence County, Illinois, and summons was served on Craig in Massachusetts. This action lay dormant for some period of time during which the parties engaged in divorce proceedings in Massachusetts, and then reconciled. The reconciliation efforts were unsuccessful, and in April 1982, Nancy returned to Illinois from Massachusetts with the two children. On April 12, 1982, Craig filed a complaint for separate support in Massachusetts, and apparently the Massachusetts court granted custody of the children to him. On May 5, 1982, Nancy filed a motion for temporary custody in Illinois. Craig filed a special and limited appearance contesting the court’s jurisdiction over him, and the court agreed that it had no personal jurisdiction over him. The Illinois court was made aware of the pending action in the Massachusetts court by pleadings and/or affidavits filed by Craig in support of his special limited appearance.

A hearing on Nancy’s petition for dissolution was held on July 21, 1982, and on August 6, 1982, the circuit court of Lawrence County entered an order dissolving the marriage between Nancy and Craig and awarding custody of the two minor children to Nancy. The court also found that it was without authority to make a determination as to child support, alimony or division of assets other than those located in Illinois because of its lack of personal jurisdiction over Craig. Craig filed a motion to vacate the judgment which was denied on December 15, 1982. No appeal was taken. Insofar as the record reflects, no further court action was undertaken by either Craig or Nancy during the next six years. Presumably the children have resided with Nancy in Illinois and have received no support from Craig.

On June 6, 1988, Nancy filed a petition for child support and other relief. Craig again filed a special and limited appearance which alleged in part that he had secured a divorce in Massachusetts in October 1983.

On September 5, 1989, the circuit court of Lawrence County held that the August 6, 1982, judgment of that court which granted custody of the two minor children to Nancy was void. Nancy appeals from that order.

The trial court relied upon Davis v. Davis (1973), 9 Ill. App. 3d 922, 293 N.E.2d 399, and In re Marriage of Passiales (1986), 144 Ill. App. 3d 629, 494 N.E.2d 541, in holding that the failure of the trial court to possess in personam jurisdiction made the subsequent custody provisions void for lack of subject matter jurisdiction. While it is true that personal jurisdiction is necessary to impose child support obligations (Kulko v. California (1978), 436 U.S. 84, 91-92, 56 L. Ed.2d 132, 140-41, 98 S. Ct. 1690, 1696-97; Boyer v. Boyer (1978), 73 Ill. 2d 331, 383 N.E.2d 223; Duncan v. Duncan (1981), 94 Ill. App. 3d 868, 419 N.E.2d 700), the same is not true with regard to orders establishing or modifying custody arrangements under the Uniform Child Custody Jurisdiction Act (Act) (Ill. Rev. Stat. 1989, ch. 40, par. 2101 et seq.).

Section 4 outlines the bases of subject matter jurisdiction under the Act:

“§4. Jurisdiction, (a) The circuit courts have jurisdiction to make a child custody determination by initial or modification judgment if:

1. this State

(i) is the home state of the child at the time of commencement of the proceeding, or

(ii) had been the child’s home state within 6 months before commencement of the proceeding and the child is absent from this State because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this State; or

2. it is in the best interest of the child that a court of this State assume jurisdiction because

(i) the child and his parents, or the child and at least one contestant, have a significant connection with this State, and

(ii) there is available in this State substantial evidence concerning the child’s present or future care, protection, training, and personal relationships; or

3. the child is physically present in this State and

(i) the child has been abandoned or

(ii) it is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse or is otherwise neglected or dependent; or

4. (i) it appears that no other state would have jurisdiction under prerequisites substantially in accordance with paragraphs 1., 2., or 3., or another state has declined to exercise jurisdiction on the ground that this State is the more appropriate forum to determine the custody of the child, and

(ii) it is in the best interest of the child that this court assume jurisdiction.

(b) A court, once having obtained jurisdiction over a child, shall retain such jurisdiction unless it concedes jurisdiction to a foreign state or none of the parties to the action, including the child, remain in Illinois.” (Ill. Rev. Stat. 1989, ch. 40, par. 2104.) The methods of affording notice and an opportunity to be heard are set out in sections 5 and 6 (Ill. Rev. Stat. 1989, ch. 40, pars. 2105, 2106).

Several courts have held that the fulfillment of the policies of the Uniform Child Custody Jurisdiction Act does not require personal jurisdiction. See In re Marriage of Schuham (1983), 120 Ill. App. 3d 339, 458 N.E.2d 559 (and cases cited therein); see also Bodenheimer, The Uniform Child Custody Jurisdiction Act: A Legislative Remedy for Children Caught in the Conflict of Laws, 22 Vand. L. Rev. 1207 (1969); Friedman & Marcus, The Continuing Jurisdiction Dilemma in Interstate Child Custody Disputes, 70 Ill. B. J. 304 (1982); Schiller, Uniform Child Custody Jurisdiction in Light of Siegel & New Legislation, 65 Chi. B. Rec. 72 (1983); Cook, Jurisdiction in Dissolution of Marriage Cases, 77 Ill. B. J. 266 (1989).

The trial court’s focus only upon the personal jurisdiction aspects of the case was erroneous. While the trial court did refer to the possibility of the effects of the Act in a letter supplementing its order, it apparently gave little or no consideration of those effects to the matters before it.

The record reveals that the trial court had subject matter jurisdiction in 1982 based upon section 4(a)(2) (Ill. Rev. Stat. 1989, ch. 40, par. 2104(a)(2)). Nancy was born in Lawrence County, Illinois, and lived there until she was 13. At that time she moved to Italy with her parents (her stepfather was in the military services). After her first marriage to a navy man failed, she returned to Illinois for over three years. She then enlisted in the armed forces and approximately 18 months later married Craig in Alaska. She and Craig had lived in Alaska and Massachusetts before her return to Illinois with the children in 1982. During her time in the service, Nancy listed Illinois as her permanent residence and voted in Illinois elections only. Nancy’s mother testified that she, her other children, her mother, and several other relatives all lived in Lawrence County, Illinois, and had lived there for many years.

The above facts were enough to establish jurisdiction in Illinois since the children and at least one parent had

“a significant connection with this State, and (ii) there is available in this State substantial evidence concerning the child’s present or future care, protection, training, and personal relationships.” (Ill. Rev. Stat. 1989, ch. 40, pars. 2104(a)(2)(i), (a)(2)(ii).)

In view of the foregoing we find that the trial court erred in holding that the 1982 judgment with regard to the custody of the children was void, and we reverse on that issue. However, we do affirm the trial court’s ruling that Craig has not subjected himself to the in personam jurisdiction of Illinois for purposes of Nancy’s petition for child support payments. See Boyer v. Boyer (1978), 73 Ill. 2d 331, 383 N.E.2d 223.

Affirmed in part; reversed in part.

LEWIS and HOWERTON, JJ., concur.


author: JUSTICE UNVERZAGT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DANIEL N. BOLDEN III, Defendant-Appellant.
    Second District
    No. 2 — 89—0190
    Opinion filed March 21, 1991.

      G. Joseph Weller and Barbara R. Paschen, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Michael J. Waller, State’s Attorney, of Waukegan (William L. Browers and Martin P. Moltz, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

Defendant, Daniel N. Bolden III, appeals his convictions of aggravated battery, arguing that they must be vacated because the aggravated batteries are lesser-included offenses of armed violence or, alternatively, that the convictions violate the one-act, one-crime principle. Defendant also appeals the length of his sentence for armed violence, arguing that the trial court improperly considered the factors in aggravation and mitigation and his potential for rehabilitation. We affirm the conviction of armed violence and the sentence therefor, and we vacate the two convictions of aggravated battery and their respective sentences.

In September 1988, defendant was indicted for the offenses of armed violence premised on aggravated battery causing great bodily harm (count I) (Ill. Rev. Stat. 1987, ch. 38, pars. 12 — 4(a), 33A — 2), aggravated battery causing great bodily harm (count II) (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 4(a)), aggravated battery by use of a deadly weapon (count III) (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 4(b)(1)), and attempted murder (Ill. Rev. Stat. 1987, ch. 38, pars. 8 — 4(a), 9— 1(a)(1)). Each and every count recited that the defendant had shot William Terry in the body and leg with a gun on August 20,1988.

On February 1, 1989, a jury found defendant guilty of the first three counts but acquitted him of attempted murder. On February 23, 1989, the trial court denied defendant’s post-trial motion and, after a hearing, sentenced defendant to a term of 17 years’ imprisonment for armed violence, a Class X felony, and five-year concurrent terms for the two offenses of aggravated battery, a Class 3 felony.

The record reveals the following additional facts pertinent to this appeal. William Terry, the victim, testified that, at about 3 a.m. on August 20, 1988, he left work and drove to a gas station where he purchased gas. He later went to make a telephone call at a mini-mart across the street from defendant’s house. He crossed the street to the alley behind defendant’s house where, as he spoke to a man named Pug, Carolyn Calloway, a tenant of defendant’s, came out of the house. Shortly thereafter, defendant came out of the house and asked Terry for a ride to North Chicago. Defendant indicated that he first had to stop at his father’s tavern, which was called Father’s Tavern, and was located down the street from defendant’s house.

Terry stated that he, Carolyn Calloway, and defendant went into the tavern and had drinks during a 10- or 15-minute period. Terry then drove defendant and Calloway to the corner of Kristan and 15th Streets in North Chicago, where Calloway got out of the car and talked to some men on the corner. After a few minutes, Calloway returned. Terry assumed that she had purchased some cocaine. Terry, Calloway, and defendant returned to Father’s Tavern. After defendant unlocked the tavern door, the three went downstairs to the basement, where defendant and Calloway injected cocaine. Terry had a drink. He said that he tried some cocaine by inhaling it.

Terry estimated that they were in the basement for about an hour when he told the others he wanted to leave, but defendant said he wanted another ride somewhere. When they went back upstairs, defendant sat on a chair by the door. The tavern door was locked, and defendant had told Terry the alarm would go off. Terry again asked to leave, but defendant would not let him do so. Terry turned to use the telephone at the bar where he was standing. He heard Calloway scream, and, as he turned around, defendant shot him in the stomach. After he was first shot, Terry attempted escape by breaking a big picture window, but could not break it at first. He ran toward defendant to keep him from shooting. Defendant shot at Terry again, but missed him. They both fell to the floor as they struggled; the gun went off again. Defendant got up and hit Terry in the face. Defendant shot at Terry again as he lay on the floor. Terry got up and again ran to the window to hit it with a barstool, and, at that point, defendant shot him in the leg. Terry knocked out the window, and defendant shot one more time. Defendant took the clip out of the gun. Terry got out through the window and crawled across the street to his car, but he did not have his keys. He stayed on the ground until the police arrived and took him to a hospital.

Dr. Yusooff Allian testified that he treated Terry’s injuries surgically. Terry had five bullet holes in the small bowel, the number of holes created by the bullet as it penetrated the coiled small bowel. The doctor characterized these wounds as life threatening. The bullet in the leg was removed several days later by another physician.

Carolyn Calloway testified that she was a tenant living with her two children in the second-floor apartment of defendant’s house on Tenth Street. She had known defendant for about four years. She spent August 19, the day before the shooting, getting “high” on cocaine with defendant. Defendant drove her over to Kristan and 15th Streets that day; he gave her $50 to buy cocaine. They took drugs, talked, and drank. They went out again twice that day to get more drugs and repeated the pattern of activity.

In the early morning hours of August 20, Calloway saw Terry parked in the alley behind her house. She said he wanted some cocaine. Defendant came out of his house, and they all went to Father’s Tavern for a drink. Defendant went to get some money, and the three went to 15th Street, where Calloway purchased some cocaine with defendant’s money. They went back into the tavern. Defendant locked the door, and they got drinks and went downstairs. Calloway and Terry smoked some cocaine. Defendant got “high,” but Calloway was not sure if defendant smoked the pipe.

Calloway further testified that, after a while, they came back upstairs to get something to drink. They were going to make another “run” for drugs, and Terry wanted to use the telephone at the bar to obtain more cocaine. Defendant was sitting at the table near the door of the tavern. Calloway was drinking and listening to music. She heard a shot. As she turned around, she saw Terry on the floor. She screamed and ran to the kitchen to hide. She heard defendant call the police.

Defendant testified that he was 43 years old and lived at 1109 Tenth Street in North Chicago. He claimed to be the landlord. He spent August 19 operating Father’s Tavern, which was located down the street from his home. He closed the tavern at 9 p.m. and went home, where he ate, prepared his clothing, watched television, and then retired. After retiring, he became aware of some people coming and going from the apartment house. At about 5 a.m. on August 20, Calloway knocked on his door and asked him for $5. He went outside and observed Calloway talking to a person he called “Step” (meaning Terry). Terry wanted to share in the purchase of a bag of cocaine. Defendant said he was not interested but invited them to have a drink. Defendant went back into the house and put his weapon in his back pocket. He said he walked over to the tavern, where he found Calloway and Terry were parked. Defendant unlocked the door, let them in and locked it again. They had a drink. Calloway suggested that they buy more cocaine, but defendant stated that he was not interested. Defendant agreed to go along with them to 15th Street, where Calloway purchased cocaine.

The trio returned to the tavern. Once inside, defendant relocked the door and poured drinks. They went to the basement, where defendant observed Calloway prepare a pipe to smoke cocaine. Calloway and Terry smoked, but defendant claimed that he did not use any cocaine.

Sometime later, Terry asked to use the restroom, which was upstairs. Defendant said he had to accompany Terry upstairs. Once there, defendant suggested that they all stay upstairs. After some conversation with Terry, Calloway asked defendant for $100 to buy a whole gram of cocaine, but defendant refused.

Terry made a telephone call. Defendant claimed that he was fed up by that time, so he set off the alarm system to summon the police while Terry was on the telephone. Defendant sat down at a table near the door of the tavern waiting for the police. He asked if the other two were ready to leave. Terry said he was waiting for a telephone call. Defendant became upset. The telephone rang and Terry answered it. Terry said the call was from the drug dealer and that for a mere $100 defendant could get a whole gram of cocaine. Calloway also pleaded for the money. Defendant had a gun in his left hand and keys in the other.

Defendant further testified that Terry approached him saying, “Buy another or I will kick your ass, take your money, and your keys.” He then grabbed defendant’s arm and said, “Well, you ain’t going nowhere.” Defendant shot Terry in the stomach. As Terry lay on the floor, defendant fired two more shots on either side of Terry. As defendant attempted to go to the telephone, Terry, who was on his knees, grabbed defendant by the legs, and both men fell to the ground and wrestled. Defendant put the gun to Terry’s head. Defendant got up and headed toward the telephone in the kitchen area. Terry grabbed a barstool, and defendant fired two more shots at Terry, forcing him into the corner of the bar. As defendant called the police, Terry smashed-the front picture window of the bar. Defendant testified that when he fired the first shot, he was “frightened to death” and felt that Terry was going to hurt him. When the police came, defendant opened the door and gave them his gun.

On cross-examination, defendant acknowledged that up to the time when Terry was waiting for the telephone call, he had not threatened or touched defendant. Defendant admitted that he gave Calloway $30 to buy drugs.

Timothy Clark, a North Chicago police officer, testified that he first investigated the sounding of the police alarm at Father’s Tavern on Tenth Street at 6:11 a.m. Clark and another officer checked the outside of the building but found all the doors secure. As he returned to the police station, at 6:34 a.m., he was dispatched back to the tavern to investigate a shooting. He found the victim lying on the corner opposite the tavern. A black male came through the door and handed him a handgun which had an empty clip in it. The officer found five spent casings in the tavern.

At the defendant’s sentencing hearing, the State described the nature of defendant’s violent attack upon the victim, the numerous shots fired at the victim as he lay on the floor, and the life-threatening injury caused by the shot in the abdomen. The State argued that, due to his explosive nature, defendant posed a severe threat to the community.

Defense counsel argued that the facts showed that defendant did not intend to kill the victim and could have done so had he chosen. He argued that defendant did not have a history of violence, that he had a supportive family and that he should be given a sentence which gave some hope of being restored to society.

In pronouncing sentence, the trial court noted that it considered the evidence from the trial, the presentence report, the letters of defendant, the statutory factors in aggravation and mitigation, defendant’s statement, and the arguments of counsel. In considering defendant’s background, the court noted defendant’s prior offenses only included two traffic offenses and resisting arrest. He also took notice of defendant’s prior psychiatric care. The trial court noted as factors in aggravation “the facts of the case itself” and “the use of a weapon.”

Defendant’s first appellate argument is that both aggravated battery convictions must be vacated in view of his conviction of armed violence. Relying on People v. Donaldson (1982), 91 Ill. 2d 164, and People v. King (1977), 66 Ill. 2d 551, defendant points out that multiple convictions are impermissible where they are carved from the same physical act or when one conviction is for a lesser-included offense of another. Defendant correctly points out that “multiple convictions for both armed violence and the underlying felony cannot stand where a single physical act is the basis for both charges.” (Donaldson, 91 Ill. 2d at 170.) Clearly, the aggravated battery (count II) premised on great bodily harm caused by defendant in shooting the victim “in the body and leg with a gun” is a lesser-included offense of armed violence, and the conviction on that count must be vacated.

Similarly, based on our decision in People v. Williams (1987), 155 Ill. App. 3d 332, 337-38, we must vacate the conviction on count III, aggravated battery premised on the use of a deadly weapon, where the same conduct or act stated in the armed violence charge and the other aggravated battery charge, shooting the victim “in the body and leg with a gun,” is the basis for this conviction. In vacating this conviction, we emphasize that the same underlying conduct was charged identically in all three counts, and thus the State elected to treat the conduct as a single act, notwithstanding that there were two separate injuries. (See Williams, 155 Ill. App. 3d at 339 (and cases cited therein).) This is not a case such as Williams, where one physical act (stabbing) was charged in one count and another physical act (striking the victim in the face) was charged in another count. See also People v. Crum (1989), 183 Ill. App. 3d 473, 490-91 (where it was alleged in each count that defendant shot and killed the victim with a gun and the State failed to differentiate the conduct supporting the murder charge from the conduct supporting the armed violence charge, defendant’s conduct would be treated as one act, and only the murder conviction would stand).

Defendant next argues that his 17-year prison term is excessive where (a) it was based in part on the court’s consideration of an improper factor, namely, the use of a gun in committing armed violence, and where (b) the court failed to consider adequately defendant’s minimal criminal background and his potential for rehabilitation.

Defendant failed to challenge the basis of his sentence in the trial court either at the sentencing hearing or by way of a motion to reconsider his sentence. We deem this sentencing issue waived on appeal. See People v. Szabo (1986), 113 Ill. 2d 83, 93; People v. Davis (1982) , 93 Ill. 2d 155, 163; People v. Murray (1990), 201 Ill. App. 3d 573, 580; People v. Craddock (1987), 163 Ill. App. 3d 1039, 1048; People v. Killings (1986), 150 Ill. App. 3d 900, 909.

Furthermore, we do not find that plain error has occurred. For a reviewing court to modify a sentence within the statutory limits, it must appear to the reviewing court that the sentence imposed is a clear departure from the spirit and purpose of the fundamental law and the constitutional requirement that the sentence be proportionate to the nature of the offense and that the possibilities for rehabilitation be taken into account. (People v. Plantinga (1985), 132 Ill. App. 3d 512, 522.) A sentence is presumptively correct, and only where such a presumption has been rebutted by an affirmative showing of error will a reviewing court find that the court abused its discretion. Plantinga, 132 Ill. App. 3d at 522.

To the extent that an aggravating factor is inherent in the offense, it may not be used to enhance the sentence. (Craddock, 163 Ill. App. 3d at 1048, citing People v. Conover (1981), 84 Ill. 2d 400.) Before an aggravating factor may properly be considered in sentencing, its risk must be greater than that inherent in the offense. Craddock, 163 Ill. App. 3d at 1048.

While the classification of a crime determines the sentencing range, the severity of the sentence depends upon the degree of harm caused to the victim. The degree of harm may be considered as an aggravating factor in determining the exact length of a particular sentence even in cases where serious bodily harm is arguably implicit in the offense for which a defendant is convicted. (People v. Saldivar (1986), 113 Ill. 2d 256, 269.) Thus, for example, in sentencing a defendant for a conviction of voluntary manslaughter, it is permissible for the trial court, in applying the statutory aggravating factor that the defendant’s conduct caused serious harm to the victim, to consider the force employed and the physical manner in which the victim’s death was brought about. Saldivar, 113 Ill. 2d at 271.

The two elements of armed violence are (1) being armed with a dangerous weapon and (2) committing a felony. (People v. Alejos (1983) , 97 Ill. 2d 502, 508.) The mere presence of a weapon of the proscribed character is sufficient; the defendant need not actually use the weapon to commit the felony. (Alejos, 97 Ill. 2d at 508.) In People v. Estrella (1988), 170 Ill. App. 3d 292, a case cited by neither party, the defendant pleaded guilty to the offense of armed violence based on his possession of a dangerous weapon in committing aggravated battery causing great bodily harm. This court determined that the trial court could consider the actual use of a weapon as an aggravating factor in the commission of armed violence to the extent that the actual use of the weapon to cause serious harm, as opposed to its mere presence, was not implicit in the offense. Otherwise stated, the actual use of the weapon created harm greater than that inherent in the mere presence of the weapon during the commission of the crime. In Estrella, the trial court had noted the serious harm caused to the victim and the wanton cruelty of shooting the victim twice in the head while he lay on the ground wounded from the first shot in the chest.

In the present case, the trial court’s statement of its reasons for the imposition of sentence was not a model of clarity, and we observe that, in appropriate circumstances, where the record does not provide us the means to determine on what basis the court fixed a particular sentence, we will find an abuse of discretion. (People v. Bergman (1984), 121 Ill. App. 3d 100, 109.) Such lack of clarity may result in needless appeals and a waste of judicial resources. Here, the court did state that it had considered, among other things, the evidence adduced at trial, the statement of defendant, and the arguments of counsel. Regarding factors in aggravation, the court stated that it considered the facts of the case itself and the use of a weapon. In the context of all that had preceded this comment, it is implicit that the trial court considered the violent and deliberate manner in which the weapon was used to inflict two serious injuries to the victim as opposed to considering the mere presence of the weapon. In determining whether a sentence was improperly imposed, a reviewing court should not focus on a few words or statements made by the trial court, but it is to consider the record as a whole. (People v. Ward (1986), 113 Ill. 2d 516, 526-27.) Before reversing a sentence imposed by the trial court, it must be clearly evident that the sentence was improperly imposed. (Ward, 113 Ill. 2d at 526.) Defendant has not shown, on the basis of an impermissible consideration of a factor in aggravation, that the sentence was improperly imposed. The facts of this case are analogous to those in Estrella.

Similarly, defendant has not shown that the factors in mitigation and his rehabilitative potential should have resulted in the imposition of the minimum sentence of six years’ imprisonment he argues is appropriate in this case. The record shows that the trial court did consider defendant’s minimal criminal history, the fact of his prior psychiatric care, and the arguments of counsel regarding his potential for rehabilitation. The trial court was not required to set forth every reason or the weight given each factor considered in the sentencing decision. (People v. Brajcki (1986), 150 Ill. App. 3d 506, 515.) Though the court must consider the defendant’s rehabilitative potential in sentencing him, such consideration need not outweigh the seriousness of the offense or other aggravating factors. (Brajcki, 150 Ill. App. 3d at 515.) Here, the trial court could have imposed a term of imprisonment of up to 30 years, but it imposed a term of 17 years, a term substantially below the maximum yet consistent with the seriousness of the offense under consideration. We find no plain error with respect to the sentencing issue.

In view of the foregoing, defendant’s two convictions of aggravated battery and the sentences therefor are vacated. The conviction of armed violence and the sentence therefor are affirmed.

Affirmed in part; vacated in part.

WOODWARD and INGLIS, JJ., concur.