author: JUSTICE JOHNSON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DENNIS SCHORLE, Defendant-Appellant.
    First District (4th Division)
    No. 1—88—1548
    Opinion filed November 29, 1990.

      Barry Sheppard and Sue Augustus, both of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Gael O’Brien, Special Assistant State’s Attorney, and Inge Fryklund, Assistant State’s Attorney, of counsel), for the People.
   JUSTICE JOHNSON

delivered the opinion of the court:

Defendant, Dennis Schorle, was charged with murder (Ill. Rev. Stat. 1985, ch. 38, pars. 9—1(a)(1), (a)(2)) and armed violence (Ill. Rev. Stat. 1985, ch. 38, par. 33A—1 et seq.) by indictment. Following a bench trial, defendant was found guilty of murder and sentenced to a term of 20 years in the Illinois Department of Corrections.

The following issues are before this court for review: (1) whether the trial court erred when it ruled that the victim’s admission to her husband that she committed adultery did not constitute sufficient provocation to warrant a finding of voluntary manslaughter; (2) whether the State proved beyond a reasonable doubt that defendant was not acting under a sudden and intense passion resulting from provocation by his wife; and (3) whether the trial court’s ruling that defendant was sane at the time of the murder was supported by the evidence.

We affirm.

Background

Marvin Hamman, a Rolling Meadows police detective, arrived at defendant’s home at 2805 Wilke Road on the night of April 9, 1987, at 5:30 p.m. He found Mrs. Delores Schorle on the kitchen floor, moaning and bleeding profusely. Detective Hamman found a pistol on the kitchen counter. Dr. Mitra Kalelkar performed an autopsy on Delores Schorle. Mrs. Schorle died as a result of multiple gunshot wounds. She had one bullet wound in the back of her head, one in her shoulder, one in her right upper arm, and one in her left lower back. Detective Hamman found a shot glass and a .22 caliber pistol on the kitchen counter. The gun had a safety latch which had to be unlatched before it would fire.

Defendant was arrested by police officer Steven Schuster of the Rolling Meadows police department on April 9, 1987, and placed in a squad car. After approximately 10 minutes, defendant began striking the window of the squad car with his head.

Soon after, Officer Schuster drove defendant to the police station. Defendant began talking about the incident en route, although Officer Schuster did not ask defendant any questions. Defendant stated that his wife spent the previous Friday night with another man.

Defendant next stated that he received an anonymous telephone call from a man on April 9, 1987, who said, “Pal, I want to help you— call this number.” Defendant maintained that he called the number and that the number was answered by an answering machine message. The message was recorded by a man named “J.J.” Defendant then told Officer Schuster that he called his wife, Delores, at work and asked her if she knew “J.J.” Mrs. Schorle admitted that she knew J.J. and that she and J.J. spent the previous Friday night together. Mrs. Schorle agreed to meet defendant at home at 5:30 p.m. to discuss their marital problems.

Defendant told the officer that he left work early and arrived home around 4 p.m.; once there, he began drinking. He maintained that he called some of his friends to discuss his problems, but no one had time to talk. Defendant got a gun and loaded it. He placed the loaded gun under a cushion in a seat in the family room.

When his wife arrived home, he asked her if she enjoyed her night with J.J., and she admitted that she did. Defendant responded by taking out the gun. Defendant began shooting his wife as she ran toward the back door. Defendant told the officer that he became angry when his wife said she enjoyed her evening with J.J. He said that his first thought after loading the gun was to shoot himself, and that he did not know why he did not kill himself. Officer Schuster did not ask defendant any questions after defendant relayed this story.

Defendant’s neighbor, Valentino Nomavicz, testified that at 5:15 p.m. on the evening of April 9, 1987, Dennis Schorle ran into his home and told him that he had just shot his wife. Defendant asked Mr. Nomavicz to call the police. Defendant was trembling and crying. Mr. Nomavicz told defendant to stay at his house while his wife called the police and he went to defendant’s home. Mr. Novavicz went to the Schorle home, where he saw Mrs. Schorle lying in a pool of blood at the back door. Defendant then appeared, and Mr. Nomavicz told him to go back to his home and wait for the police.

When Detective Hamman searched the Schorle residence, he seized defendant’s gun collection. Defendant’s gun collection consisted of 14 rifles and 2 pistols. All of the guns were legally registered. The ammunition was kept separate from the guns. Detective Hamman also found defendant’s marksmanship awards, and he testified that defendant was an avid shooter.

Detective Hamman took an oral statement from defendant at the police station. Defendant gave a narrative statement without being questioned. Defendant said that he had been having marital problems for more than a year. He stated that on Friday, April 3, 1987, his wife went out to a lounge with her sister and did not return home. Early the next morning his wife called and told him that the battery in the van was dead and that she would be home as soon as it was serviced.

Defendant related the incident concerning the anonymous telephone call that he received on the morning of April 9, when the caller told him to call a phone number that belonged to J.J. He also said that the caller told him that his "wife was having an adulterous affair. Defendant next said that he spoke to his wife at work before leaving his job early.

Once defendant arrived home, he called some friends and drank two shots of Southern Comfort whiskey. Then, defendant got a .22 caliber pistol from a cabinet and loaded it. Defendant said that he thought about shooting himself, but he reasoned that that was not the best way to deal with the situation. Mr. and Mrs. Schorle’s son, Brian, came home from school and defendant told Brian to leave the house so that he could talk to Delores alone. Defendant then went into the family room and sat down on the sofa. He placed the gun under a seat cushion and waited for his wife. When Mrs. Schorle returned home, she sat down and talked with defendant. When Delores smiled and admitted that she enjoyed being with J.J. on the night of April 3, defendant grabbed the pistol. Delores said “No” and ran. Defendant began firing. The next thing he knew, his wife was lying in the kitchen at the back door. Defendant said that he put the gun to his head, but realized that there were no bullets left. He then knelt down, hugged Delores and apologized to her, and left for help.

After the oral statement, Detective Hamman took a written statement. In the second statement, defendant made one modification. He stated that he lied about receiving an anonymous telephone call that morning. Defendant stated that he asked Delores for the towing slip from the towing service that started her car on the morning of April 4. He called the towing company on the morning of April 9 and obtained the telephone number that Delores had given them. The callback number on the order belonged to J.J. When defendant called the number, he reached an answering machine with J.J.’s voice on it. Defendant said that he considered committing suicide, but he reasoned that it was not the best way to deal with the problem. Defendant also stated that he displayed the gun in order to “scare” his wife. Defendant refused to sign this statement because he believed that his statement regarding suicide would lessen his chances of obtaining bond.

After the State rested, the defense called Patricia Sell, the victim’s sister. Ms. Sell testified that she and Delores were close friends as well as sisters. She also stated that she had known defendant for 25 years, and that she knew him to be a good husband who “adored” her sister. She further testified that she was not angry with him for killing her sister.

Defendant called Ms. Sell on the morning of April 4 to ask whether she knew the whereabouts of his wife. Ms. Sell told defendant that Delores left her presence at 10 p.m. the night before, and that she assumed Delores went home.

Ms. Sell testified that defendant called her every day at work to discuss his marital problems. Defendant asked Ms. Sell to be an intermediary between him and his wife but she told him that she loved them both and that she would just listen. On April 9, the day of the shooting, defendant called Ms. Sell at work around 3:30 p.m. He asked her whether Delores was really involved with another man and if he should give Delores a divorce.

Dr. Bruce Christiansen, a clinical psychologist, counseled defendant six times during November and December 1986. Defendant sought counseling because he was depressed and concerned about the stability of his marriage. Defendant told Dr. Christiansen that he had had episodes during which he would beat himself about the head and face. Dr. Christiansen diagnosed defendant as having a masochistic personality disorder.

Dr. Christiansen next saw defendant on December 31, 1987, at the residential treatment facility in the Cook County jail. At the time, defendant was taking “Pamelar,” an antidepressant medication. Dr. Christiansen talked with defendant for three hours. On the basis of this meeting and prior contacts with defendant, Dr. Chistiansen opined that on April 9, defendant was suffering from a “brief reactive psychosis” when he shot his wife and that he did not have the ability to conform his conduct to the requirements of the law.

“Psychosis” is defined as “[a] mental disorder causing gross distortion or disorganization of a person’s mental capacity, affective response, and capacity to recognize reality, communicate, and relate to others to the degree of interfering with his capacity to cope with the ordinary demands of everyday life.” (Stedman’s Medical Dictionary 1166 (5th ed. 1982).) A “brief reactive psychosis” is defined in the record as “the sudden onset of psychotic disorder of at least a few hours, but no more than two weeks duration with eventual return to premorbid level of functioning.”

Dr. Christiansen maintained that the brief reactive psychosis happened in response to a stressor. The stressor was finding out that his wife spent the night with J.J. The deteriorating marriage made defendant vulnerable to this stressor.

Dr. Christiansen also testified that a previous episode between defendant and his wife “primed” defendant for this stressor. That stressor was an affair that Mrs. Schorle had had with her hairdresser while defendant was in the Army. This affair happened two or three years after the couple married. During the affair, Mrs. Schorle and her companion incurred large credit card and telephone bills, and they spent defendant’s savings. As a result of the affair, Mrs. Schorle became pregnant and left defendant; however, she came back to him. The couple agreed to raise the baby as defendant’s son, and defendant promised never to mention the affair. Dr. Christiansen also testified that Mrs. Schorle’s indifference toward her husband during and after his recent hospitalization for a herniotomy aided in “priming” defendant for the reactive psychosis.

Defendant was also examined by Dr. Littnar, a psychiatrist. Dr. Littnar was contacted by Dr. Christiansen. Dr. Littnar interviewed defendant for over two hours on February 13, 1988. Dr. Littnar also examined police reports, Dr. Christiansen’s reports, and jail reports. He also interviewed Ms. Sell for 55 minutes. Based upon the interviews and the police reports, Dr. Littnar concluded that defendant has long had a personality disorder in the form of a pathological need to please other people. Dr. Littnar also testified that defendant experienced psychotic reactions earlier in his lifetime and on the evening that he killed his wife.

Dr. Littnar opined that defendant’s first psychotic reaction occurred 11 years ago when defendant’s mother was dying of cancer. At that time, Mrs. Schorle was upset by the fact that defendant took time off to visit his mother. Defendant reacted to his wife’s displeasure by beating himself. The stressor to which defendant was sensitive was his wife’s displeasure with him.

Dr. Littnar further testified that defendant’s personality disorder, coupled with the events on April 9, 1987, became the stressors that triggered a brief reactive psychosis in defendant’s mind. Dr. Littnar also stated that the psychosis began when defendant heard J.J.’s voice on the answering machine, and that the psychotic decomposition was completed when Mrs. Schorle walked away from defendant in the living room. Dr. Littnar believed that defendant knew the difference between right and wrong, but defendant’s psychotic decomposition prevented him from being able to apply the knowledge and conform his conduct to the requirements of the law.

Dr. Littnar believed that a series of previous problems undermined defendant’s ability to manage pressure, making him vulnerable to a brief reactive psychosis. These difficulties included Mrs. Schorle’s drinking and her neglect of defendant after his hospitalization, and his sons’ academic and drug problems.

Dr. Littnar also believed that the shooting was an “isolated explosive disorder.” “There are four diagnostic criteria for this disorder: ‘(A) A single, discrete episode in which failure to resist an impulse led to a single, violent, externally directed act that had a catastrophic impact on others[;] (B) [t]he degree of aggressivity expressed during the episode was grossly out of proportion to any precipitating psychological stressor[;] (C) [b]efore the episode there were no signs of generalized impulsivity of aggressivenessf;] (D) [the behavior is] [n]ot due to Schizophrenia, Antisocial Personality Disorder, or Conduct Disorder.’ ” State v. LaTourelle (Minn. 1984), 343 N.W.2d 277, 281 n.1, quoting The Diagnostic & Statistical Manual of Mental Disorders, at 298 (3d ed. 1989).

In rebuttal, the State called Dr. Albert Stipes, a forensic psychiatrist. Dr. Stipes reviewed the police reports, a social history report, and medical reports. He examined defendant for one hour on September 29, 1987, pursuant to a court order. After interviewing defendant and reviewing the reports, Dr. Stipes concluded that defendant was sane on the night of the shooting, that defendant did not have a mental illness, and that defendant neither suffered a brief reactive psychosis nor an explosive disorder.

Dr. Stipes based his opinion, and so testified, upon several factors, including the following: First, a brief reactive psychosis and an expíosive disorder are mutually exclusive mental, illnesses. He explained that an isolated explosive disorder which involves a strong impulse that the person decides to give into, by definition is not a psychosis. Next, defendant’s statement that he only intended to “scare” his wife indicated that defendant was not psychotic because he knew what had happened, and a psychotic person would not have known what occurred. Finally, defendant’s instant plea to his neighbor to “call the police” shows that defendant was not psychotic, he appreciated the criminality of his conduct, and he knew that it was necessary to call the police. For the aforementioned reasons, Dr. Stipes concluded that defendant was able to appreciate the criminality of his acts and conform his conduct to the requirements of the law.

Opinion

I

First, defendant contends that the trial court erred when it held that the victim’s admission that she committed adultery (she smiled and responded “yes” to defendant’s question as to whether she enjoyed “it”) did not constitute “sufficient provocation” to warrant a finding of voluntary manslaughter. We affirm the trial court’s ruling.

At the time of the offense in this case, voluntary manslaughter was defined in the Illinois Criminal Code of 1961 as follows:

“A person who kills an individual without lawful justification commits voluntary manslaughter if at the time of the killing he is acting under a sudden and intense passion resulting from serious provocation by:
(1) The individual killed, or
(2) ***
Serious provocation is conduct sufficient to excite intense passion in a reasonable person.” Ill. Rev. Stat. 1985, ch. 38, pars. 9—2(a)(1), (a)(2).

See also People v. McCarthy (1989), 132 Ill. 2d 331, 340; People v. Chevalier (1989), 131 Ill. 2d 66, 71; People v. Saldivar (1986), 113 Ill. 2d 256, 265.

“[A] defendant charged with murder may properly be found guilty of the lesser offense of voluntary manslaughter *** only if the evidence establishes the necessary elements of that offense ***.” People v. Chevalier (1989), 131 Ill. 2d 66, 74.

“Sufficient provocation” is one of the necessary elements of the crime of voluntary manslaughter. Illinois courts have held that “ ‘[pjassion on the part of the slayer, no matter how violent will not relieve him from liability for murder unless it is engendered by a serious provocation which the law recognizes as being reasonably adequate. If the provocation is inadequate, the crime is murder.’ ” (Emphasis added.) Chevalier, 131 Ill. 2d at 73, quoting People v. Neal (1983), 112 Ill. App. 3d 964, 969.

The Criminal Code does not enumerate which acts constitute provocation sufficient to reduce the offense of murder to voluntary manslaughter. (People v. McCarthy (1989), 132 Ill. 2d 331, 340.) However, Illinois courts have traditionally held that the following four events constitute sufficient provocation: “ ‘substantial physical injury or assault, mutual quarrel or combat, illegal arrest, and adultery with the offender’s spouse; but not mere words or gestures.’ [Citations.]” (Emphasis added.) McCarthy, 132 Ill. 2d at 340-41; People v. Fausz (1983), 95 Ill. 2d 535, 539; People v. Crews (1967), 38 Ill. 2d 331, 335; People v. Batson (1986), 144 Ill. App. 3d 1027, 1034.

The Illinois Supreme Court has mandated that adultery with a defendant’s spouse constitutes sufficient provocation to reduce homicide to voluntary manslaughter only where defendant discovers his or her spouse in the act of adultery, or immediately before or after such an act, and defendant kills his or her spouse immediately following the discovery. People v. Chevalier (1989), 131 Ill. 2d 66, 72; see also, People v. Middleswart (1984), 124 Ill. App. 3d 35, 39; People v. Harris (1984), 123 Ill. App. 3d 899, 904; People v. Wax (1966), 75 Ill. App. 2d 163, 182.

In the case at bar, defendant did not kill his wife immediately after discovering her in an adulterous act, or immediately prior to or after an act of adultery. The record shows that defendant loaded his gun, waited for his wife, and shot her seconds after she smiled and verbally admitted that she enjoyed the adulterous act. Therefore, Mrs. Schorle’s words were not legally sufficient to reduce defendant’s homicide to voluntary manslaughter.

Defendant relies upon People v. Ambro (1987), 153 Ill. App. 3d 1, People v. Carr (1980), 91 Ill. App. 3d 512, and People v. Ahlberg (1973), 13 Ill. App. 3d 1038, in support of his claim that his wife’s confession of adultery constituted sufficient provocation. Defendant’s reliance upon these cases is inappropriate. In these cases the courts “recognizefd] an exception to the general rule that a verbal communication of adultery is insufficient provocation.” (People v. Chevalier (1989), 131 Ill. 2d 66, 72.) A victim’s confession of adultery coupled with insulting remarks about a defendant’s sexual prowess, and a history of marital discord, or a threat by the victim to obtain a divorce constitutes provocation sufficient to reduce the crime of murder to voluntary manslaughter. See Ambro, 153 Ill. App. 3d at 2-7; Carr, 91 Ill. App. 3d at 517-18; Ahlberg, 13 Ill. App. 3d at 1040-41.

The Illinois Supreme Court explicitly rejected the aforementioned cases in People v. Chevalier (1989), 131 Ill. 2d 66. The supreme court found that “the ‘exception’ to the general rule created by the Ahlberg line of cases is an incorrect statement of Illinois law.” (Chevalier, 131 Ill. 2d at 75-76.) The court held that a verbal communication that adultery has occurred or will occur falls within the rule that mere words are insufficient provocation. (Chevalier, 131 Ill. 2d at 75; see also People v. Middleswart (1984), 124 Ill. App. 3d 35, 40.) “The rule that mere words are insufficient provocation applies no matter how aggravated, abusive, opprobrious or indecent the language.” Chevalier, 131 Ill. 2d at 71-72, citing People v. Neal (1983), 112 Ill. App. 3d 964, 967.

The Illinois Supreme Court has also found that mere gestures do not constitute sufficient provocation. (People v. McCarthy (1989), 132 Ill. 2d 331, 340-41; People v. Fausz (1983), 95 Ill. 2d 535, 539; People v. Crews (1967), 38 Ill. 2d 331, 335.) Therefore, we also find that the victim’s smile did not constitute sufficient provocation.

II

Defendant next contends that his conviction should be reduced from murder to voluntary manslaughter because the State failed to prove beyond a reasonable doubt that he was not acting under a sudden and intense passion resulting from provocation by his wife.

This court has held that it is entirely within the province of the fact finder to determine the credibility of witnesses, the amount of weight to accord their testimony, and the appropriate inferences to be drawn therefrom. (People v. Scherzer (1989), 179 Ill. App. 3d 624, 638; see also People v. Lighthall (1988), 175 Ill. App. 3d 700, 708; People v. Whitlock (1988), 174 Ill. App. 3d 749, 763.) Accordingly, a guilty verdict shall not be disregarded on review unless it is inconclusive, improbable, unconvincing, or contrary to human experience. People v. Stevenson (1962), 25 Ill. 2d 361, 365; People v. Banks (1985), 138 Ill. App. 3d 994, 1004.

In addition, the People assert that we must limit the scope of our review because judicial review of a trial court’s factual finding must be limited to an inquiry of whether a rational trier of fact could have found the essential elements of a crime beyond a reasonable doubt. The People rely upon Jackson v. Virginia (1979), 443 U.S. 307, 61 L. Ed. 2d 560, 99 S. Ct. 2781.

We agree with the People. In the seminal case of Woodby v. Im migration & Naturalization Service (1966), 385 U.S. 276, 17 L. Ed. 2d 362, 87 S. Ct. 483, the United States Supreme Court held:

“[I]f the correct burden of proof was imposed at the trial, judicial review is generally limited to ascertaining whether the evidence relied upon by the trier of fact was of sufficient quality and substantiality to support the rationality of the judgment. *** [A]n appellate court in a criminal case ordinarily does not ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt, but whether the judgment is supported by substantial evidence.” Woodby, 385 U.S. at 282, 17 L. Ed. 2d at 367, 87 S. Ct. at 486.

The Supreme Court followed Woodby in Jackson v. Virginia (1979), 443 U.S. 307, 61 L. Ed. 2d 560, 99 S. Ct. 2781. In Jackson, the United States Supreme Court held that “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt” (emphasis in original) (Jackson, 443 U.S. at 319, 61 L. Ed. 2d at 573, 99 S. Ct. at 2789), and that after a defendant has been found guilty, “the factfinder’s role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution.” (Emphasis in original.) Jackson, 443 U.S. at 319, 61 L. Ed. 2d at 573, 99 S. Ct. at 2789.

In People v. Collins (1985), 106 Ill. 2d 237, the Illinois Supreme Court relied upon Jackson. The court held that courts reviewing the sufficiency of the evidence should give deference to the fact finder and the prosecution and affirm the trial court’s verdict if any reasonable trier of fact could have found the elements of the crime beyond a reasonable doubt. Collins, 106 Ill. 2d at 261.

Furthermore, this court recently held that all evidence is to be considered in the light most favorable to the prosecution upon judicial review, and that the relevant question is whether any rational fact finder could have found the essential elements of the crime beyond a reasonable doubt. People v. Hileman (1989), 185 Ill. App. 3d 510, 515; People v. Scherzer (1989), 179 Ill. App. 3d 624, 638; People v. Whitlock (1988), 174 Ill. App. 3d 749, 763; People v. Banks (1985), 138 Ill. App. 3d 994, 1004.

We affirm the trial court’s determination. Defendant maintains the evidence was insufficient to prove beyond a reasonable doubt that he was not acting under an intense passion resulting from a sudden provocation by his wife. We believe the fact finder could have found the essential elements of murder beyond a reasonable doubt and that evidence that defendant committed the lesser crime of voluntary manslaughter was insufficient.

The record shows defendant knew that his wife committed adultery previously in their marriage. Defendant suspected that his wife had had a recent affair with J.J. on the morning of April 4. His suspicions were confirmed five days later. On the day of the murder, defendant left work early and went home. Once defendant was at home, he found a gun and loaded it. Defendant kept his ammunition in a place separate from his guns. Therefore, loading the gun was a premeditated act. When defendant’s son returned home, he asked his son to leave the house so that he could be alone with the victim. Defendant then hid the loaded gun under a cushion on the couch. Defendant testified that he only intended to scare his wife; but, if he only wanted to frighten her, he could have done so with an unloaded gun.

Based upon the record, the jury could have concluded beyond a reasonable doubt that defendant did not experience a sudden intense passion at the time he killed his wife and that he was guilty of murder. Ill. Rev. Stat. 1985, ch. 38, pars. 9—1(a)(1), (a)(2).

Ill

Finally, defendant contends that the trial court erred when it found defendant failed to meet his burden of proving that he was insane at the time of the shooting. Defendant argues that the trial court weighed the facts and the expert testimony improperly, and that the trial court focused on whether defendant could appreciate the criminality of his conduct, instead of whether defendant could conform his conduct to the requirements of the law. The People maintain that the trial court’s ruling was clearly supported by the evidence. We affirm the trial court’s decision.

Defendant’s contention that the trial court erred by focusing on whether defendant could appreciate the criminality of his conduct is frivolous. A trial court may focus upon whether defendant could have appreciated the nature of his actions. In Illinois, “[a] person is not criminally responsible for conduct if at the time of such conduct,, as a result of mental disease or mental defect, he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law.” (Emphasis added.) Ill. Rev. Stat. 1985, ch. 38, par. 6—2(a).

The law presumes that all defendants are sane. However, a defendant may overcome this presumption by presenting evidence which raises a reasonable doubt of his sanity. Once a defendant raises the insanity defense, he must prove his insanity at the time of the crime by a preponderance of the evidence. Ill. Rev. Stat. 1985, ch. 38, par. 3—2(b).

The issue of whether or not a defendant was sane when he committed the crime must be resolved by the fact finder. (People v. Teague (1982), 108 Ill. App. 3d 891.) The trier of fact evaluates the credibility of the witnesses, weighs their testimony, and determines the appropriate inferences to be drawn therefrom. (People v. Sckerzer (1989), 179 Ill. App. 3d 624, 638; see also People v. Jones (1982), 109 Ill. App. 3d 120, 126.) The fact finder is not required to accept the opinions or conclusions of experts or psychiatrists. (Jones, 109 Ill. App. 3d at 126; Teague, 108 Ill. App. at 899.) Ultimately, the “[Resolution of contrary testimony and [the] determination of its weight and credibility are for the trier of fact.” Teague, 108 Ill. App. 3d at 899.

A fact finder’s verdict on the issue of sanity will not be disturbed unless the “finding is so improbable or unsatisfactory as to raise a reasonable doubt concerning the defendant’s sanity” (Jones, 109 Ill. App. 3d at 126; see also People v. Gacy (1984), 103 Ill. 2d 1, 69), or “it is so manifestly against the weight of the evidence as to indicate the verdict was based [upon] passion or prejudice.” Teague,108 Ill. App. 3d at 899; see also People v. Martin (1980), 87 Ill. App. 3d 77, 81.

The People introduced the testimony of Dr. Stipes. Dr. Stipes’ testimony conflicted with the findings of defendant’s expert witnesses, the Drs. Littnar and Christiansen. The fact finder was not obligated to accept the testimony of defendant’s expert witnesses. The jury had the authority to evaluate these witnesses, weigh their testimony accordingly, and reach a verdict.

We will not set aside the trial court’s verdict. Upon review of the record, we find that there was sufficient evidence presented at trial to support the finding that defendant was sane beyond a reasonable doubt at the time of the killing. Dr. Stipes testified that defendant did not have a mental illness, and that defendant was able to appreciate the criminality of his conduct and conform his acts to the law. In addition to Dr. Stipes’ expert testimony, the record shows that defendant stated that he only wanted to scare his wife, and he asked his neighbor to call the police and report the shooting. These acts show that defendant appreciated the criminality of his conduct and that he was able to conform his acts to the law. Therefore, we cannot say that the fact finder’s conclusion that defendant was sane when he killed his wife was improbable or against the manifest weight of the evidence.

For the foregoing reasons, we affirm the trial court’s decision. As part of our judgment, we grant the State’s request that defendant be assessed $75 as costs and fees for this appeal, pursuant to People v. Agnew (1985), 105 Ill. 2d 275, and People v. Nicholls (1978), 71 Ill. 2d 166.

Affirmed.

McMORROW, P.J., and LINN, J., concur.


source: Caselaw Access Project

author: JUSTICE LINN

license: Public Domain

text:
    RUBY WILLIAMS, Plaintiff-Appellant, v. THE CITY OF CHICAGO, Defendant-Appellee.
    First District (4th Division)
    No. 1—89—3200
    Opinion filed November 29, 1990.

      Benjamin & Shapiro, Ltd., of Chicago (Gary B. Katz and Fred I. Benjamin, of counsel), for appellant.
    Kelly R. Welsh, Corporation Counsel, of Chicago (Ruth M. Moscovitch, Lynn Kristine Mitchell, and Stephen Davis, Assistant Corporation Counsel, of counsel), for appellee.
   JUSTICE LINN

delivered the opinion of the court:

Plaintiff, Ruby Williams, appeals from an order in which the trial court held that her personal injury claim against the City of Chicago was time barred. In granting Chicago’s motion for summary judgment, the trial court held that because Williams failed to provide the city with the required notice of her claim within one year, as required by the pertinent sections of the Local Governmental and Governmental Employees Tort Immunity Act (Act) (Ill. Rev. Stat. 1983, ch. 85, pars. 8—101 through 8—103), Williams could not maintain her lawsuit.

Although Williams admits that she failed to strictly comply with the notice requirements of the Act, she contends that Chicago waived its right to seek dismissal of her suit when it admitted in its answer that the filing of the complaint satisfied the notice requirement of section 8 — 102. She also maintains that the trial court abused its discretion in allowing the city to amend its answer years after the suit was filed. Finally, she argues that, in any event, certain decisions of this court support her position that the notice requirement could be fulfilled by her filing the lawsuit.

For the reasons that follow, we affirm.

Background

On September 12, 1984, Williams fell on a sidewalk in Chicago and injured herself. On September 11, 1985, she filed her complaint against the city and several other defendants who may have contributed to the allegedly defective condition of the sidewalk. The city was served with summons on September 26, 1985, and therefore did not have knowledge of Williams’ claim within one year of her injury.

On November 7, 1985, the city filed an answer, a notice to produce, and a notice to take plaintiff’s deposition. Williams filed answers to the discovery request on March 19, 1986.

In December 1988, Chicago moved for summary judgment. The court entered an order denying the motion, without prejudice, in May 1989. Thereafter the city moved for leave to file an amended answer (to retract its admission of the notice element) and filed an amended motion for summary judgment. The court granted both motions, holding that Williams had not satisfied the notice requirements of section 8 — 102 (Ill. Rev. Stat. 1983, ch. 85, par. 8—102).

Section 8 — 102 states in relevant part:

“Within 1 year from the date that the injury or cause of action *** accrued, any person who is about to commence any civil action for damages on account of such injury against a local public entity *** must serve *** a written notice on the Secretary or Clerk *** for the entity *** signed by himself, or his agent *** [and] giving in substance the following information: the name of the person to whom the cause of action has accrued, the name and residence of the person injured, the date and about the hour of the accident, the place or location where the accident occurred, the general nature of the accident, the name and addresses of the attending physician, if any, and the name and address of the treating hospital or hospitals, if any.” Ill. Rev. Stat. 1983, ch. 85, par. 8—102.

Section 8 — 103 of the Act states:

“If the notice under Section 8—102 is not served as provided therein, any such civil action commenced against a local public entity *** shall be dismissed and the person to whom such cause of injury accrued shall be forever barred from further suing.” Ill. Rev. Stat. 1983, ch. 85, par. 8—103.

Opinion

Williams first argues that the city waived its right to a dismissal of her suit based on the notice defense because of its original answer admitting notice and its subsequent participation in discovery. She cites no supporting authority for this position. Instead she attempts to distinguish the pending case from that of Shortt v. City of Chicago (1987), 160 Ill. App. 3d 933, 514 N.E.2d 3, appeal denied (1988), 117 Ill. 2d 553, 516 N.E.2d 271. In Shortt the plaintiff sent notice to the corporation counsel’s office, rather than to the city clerk. Five years after suit was filed the city moved to dismiss on the grounds that statutory notice never was served because it went to the wrong entity. The appellate court affirmed the dismissal, rejecting the plaintiff’s argument that the city should be estopped because of its participation in discovery and its long delay in moving to dismiss. The court noted that none of the city’s actions in responding to the complaint or discovery matters misled the plaintiff in the sense of causing him to refrain from filing suit timely. Therefore, the plaintiff’s filing of the lawsuit was in no way influenced by the city’s representations or conduct. The court also held that the mere filing of a general appearance and answer did not constitute a waiver of notice under section 8—102.

In the pending case; Williams filed her complaint at the very end of the one-year period; no acts or misrepresentations of the city led her to refrain from earlier filing the written notice of claim or the lawsuit itself. While the city’s original answer admitted the statutory notice requirement, the nature of this admission is not one of fact, but of legal conclusion. (See, e.g., Borushek v. Kincaid (1979), 78 Ill. App. 3d 295, 397 N.E.2d 172 (conclusions of law or fact are to be disregarded in construing a pleading).) Because the facts themselves are undisputed as to the timing of Williams’ filing and the city’s receipt of the lawsuit, we are not faced with a situation in which a party commits to a factual position and then attempts to retract that position in a later pleading.

The trial court allowed the city to amend its pleading and to incorporate the defense of improper notice of claim based on the lack of statutory notice. We do not find that the court abused its discretion in allowing the amendment. (See Whildin v. Kovacs (1980), 82 Ill. App. 3d 1015, 1017, 403 N.E.2d 694 (absent a manifest abuse of discretion, trial court’s decision to allow an amendment to pleadings will not be reversed).) The narrow situation in' which estoppel may be found requires conduct or misrepresentations on the part of the government or public entity. For example, if a representative of the city had repeatedly assured the plaintiff that she need not comply with all of the statutory requirements and that her claim was being processed, the result would differ. (See Searcy v. Chicago Transit Authority (1986), 146 Ill. App. 3d 779, 497 N.E.2d 410.) Plaintiffs are not lightly excused from strict compliance with the requisite statutory notice, however. (See Murphy v. Chicago Transit Authority (1989), 191 Ill. App. 3d 918, 548 N.E.2d 403 (attorney’s allegations that agent of CTA misled him on where to send notice did not establish an estoppel).) We do not believe that the city’s admission of a legal conclusion in its original answer compares with the type of active, misleading conduct that a plaintiff may reasonably rely on to excuse her failure to perfect the statutory notice requirements of her claim.

Nor does the waiver doctrine aid Williams; if the trial court believed that Chicago’s original answer and participation in discovery constituted waiver it would not have allowed the city to replead. Since we have found no abuse of discretion in the trial court’s decision to allow Chicago to withdraw its admission of the legal conclusion of notice, we necessarily agree that the city did not intentionally relinquish its right to assert the lack of notice merely by filing the original answer.

The remaining issue for our resolution concerns the proper interpretation to be given a line of cases in which the statutory notice requirement was satisfied by the filing of the lawsuit within the limitation period. There is ample authority for the proposition that as long as the information that it to be furnished the defendant by statutory notice of claim is contained in the plaintiff’s complaint, and that complaint is filed within the time period required for giving notice, there is no sound reason to dismiss the action. The reason is simple: the very notice the public entity is entitled to receive within the statutory period is satisfied by the complaint and any technical defects in serving notice are cured. See, e.g., Zavala v. City of Chicago (1977), 66 Ill. 2d 573, 363 N.E.2d 848; Dunbar v. Reiser (1976), 64 Ill. 2d 230, 356 N.E.2d 89; Rio v. Edward Hospital (1984), 104 Ill. 2d 354, 472 N.E.2d 421.

While both sides agree that filing a complaint in lieu of serving notice under section 8 — 102 may suffice in some situations, the problem posed here is whether the mere filing of the complaint on the last day of the one-year notice period is sufficient when it is undisputed that the city did not receive the complaint until after the expiration of that period. Williams says yes, relying on this language from the Dunbar opinion:

“For the reasons stated we hold that the filing of the complaint within the [applicable] period satisfied the notice requirement of section 8 — 102 of the Tort Immunity Act and the judgment of the appellate court is affirmed.” 64 Ill. 2d at 237, 356 N.E.2d at 92.

Williams emphasizes one word in that sentence, “filing.” She would have us hold that as long as the complaint was filed, even on the last day of the applicable period, she necessarily comes within the Dunbar exception to the notice requirement of section 8 — 102. Williams concedes that an appellate court decision has since held that a complaint filed before the expiration of the statutory notice period alleviates the necessity of notice only if the complaint was served on the defendant within the statutory period or the defendant otherwise received actual notice of the claim within the statutory period. (Lane v. Chicago Housing Authority (1986), 147 Ill. App. 3d 876, 498 N.E.2d 604, appeal denied (1987), 113 Ill. 2d 576, 505 N.E.2d 354.) She also concedes that the Lane decision “attempts” to reconcile itself with the Dunbar line of cases, in that each case in which the filing of the complaint served to satisfy the notice requirement, the complaint was actually received by the defendant or the defendant had some actual notice of the claim within the statutory period. Williams nevertheless argues that it is unfair for us to apply Lane “retroactively” to suits pending before its publication, including hers.

We do not agree that Lane effected a change of existing law so as to require us to consider whether we can apply it retroactively. While the precise issue before the court was one of first impression, the court’s reasoning and result grew logically out of existing case law and statutory construction principles. In Lane, the plaintiff filed suit three days before the expiration of the statutory period and the city was served one day after its expiration. In dismissing the case, the court held that the mere filing of a complaint that it is not served within the statutory time period does not satisfy the notice requirements of section 8—102 of the Tort Immunity Act. “To hold otherwise would defeat the purpose of the Act and would diminish, if not destroy, the clear intent of the legislation.” 147 Ill. App. 3d at 880, 498 N.E.2d at 607.

Unlike Williams, we find no conflict between the appellate decision in Lane and the supreme court’s opinion in Dunbar. Dunbar expressly noted that the plaintiff in that case had filed the complaint early enough to allow the defendant to take discovery within the limitation period and thereby obtain the information required by statute but omitted from the complaint. Hence, the statutory purpose of timely notice, to allow prompt investigation of claims, was fulfilled.

In Zavala, decided by the supreme court one year after Dunbar, the plaintiff had given notice to defendant within the statutory period but had omitted the names of the hospitals where she was treated, information required by section 8 — 102. There, as in the pending case, the defendant did not receive that information until after the statutory period had expired. Accordingly, the plaintiffs cause of action was held to be properly dismissed because the notice was defective. See also Oliver v. City of Chicago (1985), 137 Ill. App. 3d 958, 485 N.E.2d 428 (filing of complaint the last day of the statutory notice period cured defect in earlier, timely filed notice, which had omitted the date of the injury or cause of action); Rio v. Edward Hospital (1984), 104 Ill. 2d 354, 472 N.E.2d 421 (complaint was filed within three months of cause of action and defendants were served shortly thereafter).

We find the reasoning of Lane persuasive because it reviewed and reconciled the pertinent case law before determining that the key to satisfying the notice requirement of section 8 — 102 by the filing of a lawsuit is this: As long as the filing of the complaint within the statutory period cures an earlier, defective or incomplete notice of claim, notice is adequate under the statute because the defendant is thereby given the opportunity to investigate within the time intended by the legislature. If, on the other hand, no notice of claim whatsoever is filed, within the statutory period, even a complaint which furnishes the necessary information is not considered timely notice unless it is served upon the defendant before the expiration of the time period. Under that view, we cannot say that the City of Chicago had any such notice within the one-year time frame. Accord Kirby v. Town of Somer (1987), 162 Ill. App. 3d 463, 515 N.E.2d 342, appeal denied (1987), 118 Ill. 2d 545, 520 N.E.2d 386.

The time requirements set out in the Tort Immunity Act serve a purpose that has been discussed at length in the cases. Even if the Lane case had not been decided, we would follow a similar analysis and reach a similar result. Therefore, there is no unfairness to Williams in our citing to Lane or finding its rationale persuasive. Strict adherence to time limitations are necessary to effect the legislative intent, however harsh a result may appear to the plaintiff who has missed the limitation by only a few days. We conclude that because Chic,ago was not put on notice of Williams’ claim within one year, her cause of action is barred by section 8 — 103 of the Act.

Affirmed.

McMORROW, P.J., and JOHNSON, J., concur.


author: PRESIDING JUSTICE DiVITO

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHNNY MOORE et al., Defendants-Appellants.
    First District (2nd Division)
    Nos. 1—88—2181, 1—88—2556 cons.
    Opinion filed November 30, 1990.

      Randolph N. Stone, Public Defender, of Chicago (Julie M. Campbell and James H. Reddy, Assistant Public Defenders, of counsel), for appellants.
    Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb, Walter P. Hehner, and Margaret Iwerebon, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE DiVITO

delivered thé opinion of the court:

Following a consolidated jury trial, defendants Johnny Moore and David Jackson were found guilty of residential burglary (Ill. Rev. Stat. 1987, ch. 38, par. 19—3) and possession of burglary tools (Ill. Rev. Stat. 1987, ch. 38, par. 19—2) and each was sentenced to the Illinois Department of Corrections. Both defendants appeal their convictions; Jackson appeals his four-year sentence and the denial of his request for rehabilitative drug treatment. The issues raised on appeal are: (1) whether the evidence was sufficient to prove defendants guilty beyond a reasonable doubt of burglarizing a “dwelling”; (2) whether the circuit court erred in refusing to instruct the jury on the lesser included offenses of burglary and criminal trespass to a residence; and (3) whether the circuit court erred in sentencing Jackson to a term of years in the Illinois Department of Corrections rather than granting him rehabilitative drug treatment.

On October 10, 1987, Chicago police officers Michael Pelka and Thomas Moore were on routine patrol. At approximately 5 a.m., while patrolling the 11000 block of South Parnell, they approached the house at 11014 S. Parnell and noticed a van on the lawn, backed up to the front door with its two rear doors wide open. Two men, later identified as defendants, were coming through the front door of the house carrying a large refrigerator. Upon seeing the officers, defendants immediately dropped the refrigerator, jumped off the porch, and ran south down Parnell. Officer Moore left the squad car to pursue on foot while Pelka pursued in the squad car.

Both defendants ran between two houses and into the alley behind the houses. Once in the alley, Jackson ran south while defendant Moore ran north. Officer Moore, who ran north after defendant Moore, identified himself as a police officer and shouted to defendant Moore to stop; however, defendant Moore continued to flee.

Pelka drove the squad car to the end of the block, parked in the alley, and ran north up the alley. He saw Jackson running in the alley and ran after him, eventually apprehending him. After handcuffing Jackson, Pelka searched him and found a screw driver and pliers in his back pocket.

Meanwhile, defendant Moore had run back to the house at 11014 S. Parnell and had jumped into the van in front of the house. Officer Moore and Sonya Haddad, another officer who had arrived at the scene, ran up to the driver’s side of the van and yelled to defendant Moore to get out of the van. Defendant Moore, however, started the van and attempted to drive away. When both officers drew their revolvers, defendant Moore stopped the van and he was arrested.

In 1987, the home at 11014 S. Parnell was occupied by Terrence Lowe, who had lived in the house with his parents and sister from 1971 until 1979, when his parents moved to Mississippi. Lowe continued to live in the house from 1979 until 1987. Although the home was owned by Lowe’s father, Terrence Lowe paid the mortgage and all the utility bills.

In September 1987, Terrence Lowe travelled to Mississippi to look for a job and to visit his parents. The house at 11014 S. Parnell was fully furnished when Lowe left for Mississippi; however, the electricity, gas, and telephone service were all disconnected before he left.

Lowe returned to Chicago on October 9, 1987, and drove directly to his sister’s house in Markham, Illinois. Later that evening, he drove by the house at 11014 S. Parnell. After satisfying himself that the house looked secure, he drove back to his sister’s house.

The next day, Lowe returned to his house at approximately 7:30 a.m. and noticed that the front door was open and that his refrigerator was lying on its side on the front porch. Lowe immediately walked to the side of his house and saw that the kitchen windows and the doors to the basement and the back porch were also open. When he entered the house, he saw that most of his furniture had been moved to the front room and that several items were missing; the dining room set, bar stools, stereo, and lamps were gone. Shortly thereafter, a police officer arrived to inform him of the burglary and the arrests that had taken place that morning.

At trial, Lowe stated that he knew neither defendant and he did not authorize either of them to enter his home. Lowe further testified that while in Mississippi he intended to return to his house in Chicago. Moreover, after returning to Chicago, Lowe moved back into his house and lived there for approximately one month before selling it.

At the close of the evidence, both defendants requested a jury instruction for the lesser included offenses of burglary and criminal trespass to a residence. The circuit court denied their request, stating that the evidence was uncontradicted that the house was a “residence.” The court then instructed the jury on the charges of residential burglary and possession of burglary tools. The jury found defendants guilty of both charges.

At the sentencing hearing, the circuit court denied Moore’s request for drug treatment evaluation because he was on parole for armed robbery and was thus ineligible for the treatment alternative. Jackson, on the other hand, was eligible for rehabilitative treatment, but the circuit court denied his request, stating:

“The Court is *** faced with the question of whether it’s in the public’s interest to grant this defendant Probation in view of the fact that a jury has found him guilty of the offense that requires a mandatory prison sentence.
This Court feels that a deferred judgement is not appropriate in this case. The Court is not opposed to giving him TASC along with Probation and 6 months in the House of Corrections with credit for time served, but that can only be done- on the consent of the State’s Attorney in reducing the charge from residential to burglary.”

The State’s Attorney refused to lower the charges. Moore was sentenced to eight years and Jackson was sentenced to four years in the Illinois Department of Corrections.

I

Defendants’ first contention on appeal is that the evidence was not sufficient to prove them guilty beyond a reasonable doubt. Defendants specifically argue that the house at 11014 S. Parnell was not a “dwelling place” as defined by the residential burglary statute.

That statute provides:

“A person commits residential burglary who knowingly and without authority enters the dwelling place of another with the intent to commit therein a felony or theft.” (Ill. Rev. Stat. 1987, ch. 38, par. 19—3.)

“Dwelling,” for the purpose of the residential burglary statute, is defined as:

“a house *** or other living quarters in which at the time of the alleged offense the owners or occupants actually reside or in their absence intend within a reasonable period of time to reside.” Ill. Rev. Stat. 1987, ch. 38, par. 2—6(b).

Defendants contend that the house at 11014 S. Parnell was not inhabited at the time of the burglary and that none of the prior occupants had any intention of returning to it. They contend that the house was used only as a “storage space” and that the record does not indicate that Lowe intended to return to it. Their contentions, however, are not borne out by the record. During trial, Lowe clearly stated that while in Mississippi he intended to return to the house. Moreover, after one month’s absence, Lowe did indeed move back into the house.

The residential burglary statute applies to burglaries of structures intended for use as residences, regardless of whether the structure was being actively used as a residence at the time of the burglary. (People v. Benge (1990), 196 Ill. App. 3d 56, 552 N.E.2d 1264; People v. Sexton (1983), 118 Ill. App. 3d 998, 1000, 455 N.E.2d 884.) Accordingly, the mere fact that Lowe travelled to Mississippi before the burglary took place does not mean that the house was not a “dwelling place.” In fact, Lowe had returned to Chicago the evening before the burglary and had checked on the house both before and after the burglary.

Defendants’ reliance upon People v. Bales (1985), 108 Ill. 2d 182, 483 N.E.2d 517, is misplaced. In that case, the supreme court stated:

“The common sense construction of the phrase ‘the dwelling place of another’ as used in section 19 — 3 requires that the structure be one used by another as a residence or living quarters in which the owners or occupants actually reside or, if absent, intend within a reasonable period of time to reside.” (People v. Bales, 108 Ill. 2d at 191.)

Defendants maintain that, because the occupant of the house was absent, the true focus should be on the occupant’s intent to return. They further argue that the record does not indicate that the owners of the home had any intent to return. They assert that because one of Lowe’s purposes in returning to Chicago was to sell the house, the house was not a dwelling. Thus, they argue, an element of residential burglary was not proved beyond a reasonable doubt.

The record, however, does not support defendants’ arguments. Lowe stated that before travelling to Mississippi he locked up his house securely and left all his furniture inside. He clearly stated that he intended to return to the house. In fact, soon after he returned to Chicago, the utilities were turned on and he lived in the house for one month before putting it up for sale. Although Lowe stated that one of his purposes in returning to Chicago was to sell the house, this did not mean that the house was no longer a “dwelling place.” Lowe’s intent was clear: while in Mississippi, he intended to return to his home in Chicago, which is precisely what he did. Putting the house up for sale one month after the burglary is irrelevant to the question of whether the house was a “dwelling place.”

Based upon Lowe’s testimony, the jury reasonably concluded that the house was a “dwelling place” and that Lowe, while in Mississippi, intended to return to it. Thus, defendants were properly convicted of residential burglary.

II

Defendants next argue that the circuit court improperly refused to instruct the jury on the lesser included offenses of burglary and criminal trespass to a residence. In support of their contention, defendants rely upon People v. Bryant (1986), 113 Ill. 2d 497, 499 N.E.2d 413.

In Bryant, the court stated that an instruction on a lesser included offense is appropriate if the evidence would permit the trier of fact to rationally find the defendant guilty of the lesser offense and acquit him of the greater. (People v. Bryant, 113 Ill. 2d at 507.) Moreover, an included offense instruction is proper only where the charged offense requires the jury to find a disputed factual element which is not required in the lesser offense. People v. Bryant, 113 Ill. 2d at 507.

Although a defendant is entitled to instructions on lesser included offenses (People v. Cramer (1981), 85 Ill. 2d 92, 421 N.E.2d 189), those instructions will be permitted only if the trier of fact can rationally determine that the evidence is insufficient to support a finding of guilty of the greater offense, but sufficient for a finding of guilty of the lesser included offense. (People v. Balls (1981), 95 Ill. App. 3d 70, 419 N.E.2d 571.) It is equally true that where the evidence shows that defendants are either guilty of the higher offense or not guilty of any offense, an instruction on the lesser included offense is unnecessary and properly refused. People v. Thompson (1976), 35 Ill. App. 3d 773, 776, 342 N.E.2d 445.

In refusing to accept defendants’ tendered instructions, the court stated that “the evidence in this case is uncontradicted, that the place was a residence, and it was used as a residence before the offense, and after the offense.” The prosecution presented overwhelming evidence that defendants committed the offense of residential burglary. Lowe lived at 11014 S. Parnell for eight years and then travelled to Mississippi for only one month. The utilities and gas were turned off for this period; however, they were turned on again after Lowe returned from Mississippi. Additionally, it is undisputed that defendants knowingly and without authority entered the house. Furthermore, defendants were seen carrying a refrigerator out of the house and several other items were missing from the house.

In the instant case, in regard to the residential burglary charge, an examination of all the testimony shows that the jury could have reached only one of two conclusions: defendants were guilty of residential burglary or they were not guilty. From the evidence contained in the record, defendants were unquestionably guilty of residential burglary. Therefore, defendants were not entitled to an instruction of the lesser included offenses, since the jury would have been justified in returning a verdict only on the greater offense. People v. Sexton (1983), 118 Ill. App. 3d 998, 455 N.E.2d 884.

Ill

Finally, Jackson contends that the circuit court abused its discretion in sentencing him to prison rather than in ordering treatment under article III of the Alcohol and Substance Abuse Act (Ill. Rev. Stat. 1987, ch. 111½, pars. 6320 through 6325), which provided that an addict charged with or convicted of a crime was eligible to elect rehabilitative treatment instead of traditional sentencing, within certain statutory limitations. Ill. Rev. Stat. 1987, ch. 111½, par. 6321.

When an addict elects to undergo treatment, the court must order an examination by a licensed program to determine whether he is likely to be rehabilitated through treatment. (Ill. Rev. Stat. 1987, ch. 111½, par. 6323.) In the instant case, Jackson moved for such an evaluation, which was granted. The result of the evaluation was that Jackson was an addict and that he demonstrated a likelihood of rehabilitation. However, the court denied Jackson’s request for treatment.

A defendant does not have an absolute right to require the treatment alternative provided by the statute. (People v. Hirschmann (1988), 175 Ill. App. 3d 150, 529 N.E.2d 760.) Rather, the circuit court has broad discretion to deny or grant a defendant’s request to participate in the treatment program. (People v. Warren (1977), 69 Ill. 2d 620, 373 N.E.2d 10.) Furthermore, the circuit court’s determination of a defendant’s eligibility for treatment and sentencing will not be reversed on review absent a showing that the court acted arbitrarily or abused its discretion. People v. Hirschmann, 175 Ill. App. 3d at 153.

Thus, we must determine whether the circuit court abused its discretion in sentencing Jackson. The court stated that it was “not opposed to giving [Jackson rehabilitative treatment] along with Probation and 6 months in the House of Corrections with credit for time served, but that can only be done on the consent of the State’s Attorney in reducing that charge.” The court further stated:

“I have considered the [treatment alternative] report. However, the Court feels in view of the contents of the presentence investigation, in view of the fact that the legislature had seen fit to make this an offense that requires a mandatory sentence, the Court does not feel that it would be in the public interest to grant you [rehabilitative treatment]. However, the Court would encourage you to continue your narcotics treatment at the Department of Corrections, and the Court intends to impose the minimum sentence.”

Defendant argues that the circuit court mistakenly believed that since Jackson was found guilty of residential burglary he was ineligible for treatment. However, it is evident from the language of the circuit court that it did not mistakenly believe that Jackson was ineligible. On the contrary, the record shows that the circuit court was aware of its discretion and that it weighed all the evidence in mitigation and aggravation and only then did it deny the treatment alternative to defendant.

The court’s statement that it would sentence Jackson to six months’ probation with treatment was merely a statement that it was willing to impose probation other than that provided by the Alcohol and Substance Abuse Act, if the State were to reduce the charge. Because the court considered the necessary factors in determining whether to sentence Jackson or place him in treatment, the court neither abused its discretion, nor arbitrarily denied treatment. People v. Suane (1987), 164 Ill. App. 3d 997, 518 N.E.2d 458.

For the reasons stated, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

HARTMAN and BILANDIC, JJ., concur.

      Seetions 10—101 and 10—102 of the Illinois Alcoholism and Other Drug Dependency Act (Ill. Rev. Stat. 1989, ch. 111½, pars. 6360—1, 6360—2) have replaced these sections pursuant to Public Act 86—848, effective September 7, 1989.


text:
    EILEEN LAURENCE et al., Plaintiffs-Appellants, v. THE FLASHNER MEDICAL PARTNERSHIP et al., Defendants-Appellees.
    First District (2nd Division)
    Nos. 1—88—3392, 1—88—1147 cons.
    Opinion filed November 30, 1990.

      William J. Harte, Ltd., of Chicago (William J. Harte and Sylvia A. Sotiras, of counsel), for appellants.
    Cheryl Weissman, of Office of General Counsel of Flashner Medical Partnership, of Chicago, for appellees.
   PRESIDING JUSTICE DiVITO

delivered the opinion of the court:

Plaintiffs Eileen Laurence, M.D., and James H. Martin, M.D., filed suit against defendants Bruce A. Flashner, M.D., and the Flashner Medical Partnership (FMP) for an accounting, a declaration of partnership rights, breach of fiduciary duty, and fraud in inducing entry into the partnership. The circuit court entered summary judgment against plaintiffs and in favor of defendants as to all counts. Defendants then sought to impose sanctions against plaintiffs, and, in response, plaintiffs sought to impose sanctions against defendants. The circuit court denied both motions for sanctions. Plaintiffs appeal the entry of summary judgment against them and the denial of their motion for sanctions. Defendants cross-appeal the denial of their motion for sanctions. The issues raised on appeal are: (1) whether the circuit court erred in granting defendants’ motion for summary judgment; and (2) whether the circuit court erred in denying both plaintiffs’ and defendants’ motions for sanctions.

On September 1, 1981, Dr. Laurence joined FMP, a medical partnership engaged in the practice of providing medical care. On April 1, 1983, Dr. Martin joined FMP. Thereafter, on April 10, 1985, Dr. Martin was expelled from the partnership, and on September 30, 1985, Dr. Laurence was also expelled.

FMP’s articles of partnership governed all partners’ rights and responsibilities. Pursuant to the articles of partnership, all new partners were allocated “units” representing their respective percentage interests in FMP. The articles required that all partners pay into the partnership the book value of units distributed to him. Those articles stipulated that the senior partner, Dr. Flashner, “shall at all times automatically be entitled to *** no less than 51% of the outstanding units of Partnership.” The articles further indicated that the capital investment of FMP was to be divided into 100 units valued at $10,000 per unit, the aggregate amount of the capital investment and the number and dollar amount of each unit being subject to change in the sole discretion of Dr. Flashner: Dr. Flashner “shall consider whether, in the interest of fairness to individual Partners, or in the general interest of the Partnership, the Partnership interest of any of the Partners should be reduced or increased.” Additionally, the articles stipulated that FMP could require a partner’s withdrawal effective upon 90 days’ written notice. On April 10, 1985, the articles were amended to allow for the expulsion of a partner on 90 days notice or “such lessor [sic] time as the Partnership’s Management Group shall determine.”

On October 8, 1985, Drs. Laurence and Martin filed a verified complaint containing four counts. Count I of the complaint sought an accounting from defendants. Plaintiffs averred that Dr. Flashner had “exclusive control over and access to books and records of FMP.” Plaintiffs claimed that they did not receive their just and proportionate shares of the profits of FMP, in contravention of the articles of partnership. Plaintiffs further alleged that their unit interests in FMP were improperly, negligently, or fraudulently revalued, reallocated or reduced to zero. The complaint alleged that despite repeated demands for an accounting, Dr. Flashner refused to allow plaintiffs or their accountants access to the books and records of FMP. For relief, plaintiffs requested a formal accounting and a court appointee to manage and control the assets and affairs of FMP until proper distributions were made to the partners.

In count II, plaintiffs alleged that their unit interests in FMP were substantially devalued and that Dr. Flashner failed to provide a “full and complete accounting for the reallocation and decrease of plaintiffs’ unit interests.” Count II also alleged that Dr. Martin had been improperly expelled from FMP. For relief, plaintiffs again requested an accounting as well as a declaration of the rights, obligations and interests of the partners in FMP.

Count III of the complaint alleged that Dr. Flashner, as the senior and “controlling” partner, breached his fiduciary duty to the partners. Plaintiffs averred that Dr. Flashner convinced them to purchase stock in Doctor’s Officecenters Corporation, which was owned and controlled by FMP, at $9 per share. Plaintiffs alleged that they purchased the stock in reliance upon Dr. Flashner’s representations that the investments were needed to stabilize the price and to present a cohesive and healthy financial picture of the service corporation to the public. Moreover, plaintiffs averred that, in order to expedite the sale of the stock, Dr. Flashner helped them secure loans for the purchase of the stock. Plaintiffs further alleged that Dr. Flashner promised to make them “whole” should the value of the stock decline. According to plaintiffs, the stock value declined to $3 per share, a fact which Dr. Flashner knew would occur due to his “private and secret” negotiations with Humana, the company which later purchased Doctor’s Office-centers Corporation. Plaintiffs alleged that, after the drop in the stock value, Dr. Flashner again assured them that he would make the partners of FMP “whole” with respect to the investment losses. For relief, plaintiffs again requested an accounting in addition to damages resulting from Dr. Flashner’s alleged breach of fiduciary duty.

In count IV, plaintiffs alleged that Dr. Flashner fraudulently induced them to join the partnership by promising greater compensation than was available elsewhere, but that the higher compensation was never forthcoming. Plaintiffs requested compensatory and punitive damages in addition to an accounting. In support of their allegations, plaintiffs attached to their complaint FMP’s original articles of partnership.

Defendants, in their verified answer, admitted that Drs. Laurence and Martin had been partners in FMP at one time and had been expelled from the partnership. However, defendants denied plaintiffs’ allegations that Dr. Flashner had exclusive control over FMP’s books and records and had refused plaintiffs’ requests for access to the financial documents. Furthermore, defendants denied that Dr. Flashner breached his fiduciary duty or fraudulently induced plaintiffs to enter into partnership with FMP. Defendants further denied that Dr. Laurence or Dr. Martin was improperly expelled from the partnership.

On August 4, 1988, defendants filed a motion for summary judgment. In support of their motion, defendants attached the amended articles of partnership and six affidavits. In addition, defendants submitted copies of two opinions involving FMP as a defendant: one from a Federal district court in Illinois and the other from a New York State court.

In the first affidavit, Dr. Flashner stated that though he had sent Dr. Laurence numerous letters during the period that she had been absent from work, he received no responses from her. Dr. Flashner further stated that he had offered Dr. Laurence access to all of FMP’s financial statements and other records in his letters of May 14, 1985, and June 14, 1985. Those letters, in addition to all the other letters and mailgrams which Dr. Flashner sent to Dr. Laurence, were also attached to the motion for summary judgment.

The second and third affidavits, from Karin Olson and Kathy Brasky, respectively, simply stated that those letters which Dr. Flashner sent to Dr. Laurence were mailed by the two affiants.

The fourth, fifth, and sixth affidavits were from doctors who were present at the management meeting on April 10, 1985, when the articles of partnership were amended and when Dr. Martin was voted out of the partnership. All three doctors stated that Dr. Laurence was present at the meeting and that the vote was unanimous as to the amendment and as to the expulsion of Dr. Martin.

Plaintiffs did not respond to defendants’ motion for summary judgment nor did they offer any counteraffidavits or exhibits in response to defendants’ motion.

On October 18, 1988, a hearing on the summary judgment motion was held. After hearing arguments, the court granted summary judgment in favor of defendants. In so doing, the court stated:

“I have reviewed the motion for summary judgment. It’s extensive. The documentation supplied is extensive, and I am satisfied that without counter-affidavits, counter exhibits, or counter presentations, the motion must prevail.
It’s the law in Illinois that a verified complaint does not satisfy as an answer to a motion for summary judgment. Once summary judgment is presented and affidavits are tendered in support of evidentiary questions, counsel cannot look to its pleadings and say we have answered it, we have denied it, we have pled earlier. Affidavits must be countered by counter-affidavits, and if they are not countered, the affidavits stand as the last word available to the court.
On this multiple count complaint, the affidavits dictate that all the issues are resolved in favor of the Defendant.”

The court then found that the articles of partnership governed the dispute and that, pursuant to the articles, Dr. Martin was expelled properly from the partnership. On the question of fraudulent inducement into the partnership, the court stated that the complaint set forth only future promises which did not “satisfy Illinois law to set out a complaint for fraud.” As to breach of fiduciary duty, the court found that the articles governed and that it was “satisfied that what was done was done pursuant to the articles of incorporation.”

The court further found that the accounting which plaintiffs requested had already been given to plaintiffs. According to the argument advanced by defendants, hundreds of documents had been made available to plaintiffs, yet plaintiffs had not taken adequate opportunity to review the documents; nor had plaintiffs ever complained about the content or the number of the documents provided by defendants. Thus, the court stated:

“[I]f it was Plaintiffs’ position that there were documents being secreted *** withheld or *** not being made available, a motion under 2 — 1007 would have fleshed out that argument and would have brought appropriate consideration from the Court. None of that was done.”

After summary judgment was entered against them, plaintiffs did not file a motion to reconsider nor did they move to file supplemental pleadings. Defendants, however, filed a motion pursuant to section 2— 611 of the Illinois Code of Civil Procedure against plaintiffs. (Ill. Rev. Stat. 1987, ch. 110, par. 2—611.) That motion alleged that plaintiffs advanced false pleadings due to plaintiffs’ reliance upon the original articles of partnership attached to the complaint. Defendants averred that plaintiffs were aware of the existence of the amended articles and knew that those articles governed, but had instead relied upon the original articles. Plaintiffs responded, asserting Dr. Martin’s good-faith basis for relying upon the original articles. In response, plaintiffs requested that defendants be sanctioned for filing a frivolous section 2 — 611 motion. On April 21, 1989, the court denied both motions for sanctions.

From the order granting defendants’ motion for summary judgment and the order denying plaintiffs’ motion for sanctions, plaintiffs appeal. Defendants cross-appeal from the order denying their motion for sanctions.

I

Plaintiffs argue that the circuit court erred in granting defendants’ motion for summary judgment because issues of fact still remained. Specifically, plaintiffs contend that although defendants submitted affidavits in support of their motion for summary judgment, those affidavits did not address every issue of fact raised in plaintiffs’ complaint. Accordingly, since there were still issues of fact, summary judgment was inappropriate.

Summary judgment will be awarded only where the pleadings, depositions, admissions, and affidavits demonstrate that no genuine issue of fact exists which warrants trying the case. (Ill. Rev. Stat. 1987, ch. 110, par. 2—1005(c); Carruthers v. B.C. Christopher & Co. (1974), 57 Ill. 2d 376, 313 N.E.2d 457; Cato v. Thompson (1980), 83 Ill. App. 3d 321, 403 N.E.2d 1239; Diomar v. Landmark Associates (1980), 81 Ill. App. 3d 1135, 401 N.E.2d 1287.) When affidavits presented in support of summary judgment are not contradicted by counteraffidavits, they must be taken as true, even though the adverse party’s pleadings allege contrary facts. (Fooden v. Board of Governors of State Colleges & Universities (1971), 48 Ill. 2d 580, 587, 272 N.E.2d 497, cert. denied (1972), 408 U.S. 943, 33 L. Ed. 2d 766, 92 S. Ct. 2847; Zannis v. Lake Shore Radiologists, Ltd. (1982), 104 Ill. App. 3d 484, 432 N.E.2d 1108.) Thus, although a party need not support with affidavits a motion seeking summary judgment, a party may not rely solely on his complaint to oppose a supported motion for summary judgment. Where a party moving for summary judgment files supporting affidavits containing well-pleaded facts and the party opposing the motion files no counteraffidavits, the material facts set forth in the movant’s affidavits stand as admitted. (Lawrence v. Rubio (1980), 85. Ill. App. 3d 472, 410 N.E.2d 946; Pitler v. Michael Reese Hospital (1980), 92 Ill. App. 3d 739, 415 N.E.2d 1255.) Even the allegations of a verified complaint cannot prevail over the uncontradicted facts set forth in affidavits submitted by defendants in support of a motion for summary judgment. (Fooden v. Board of Governors of State Colleges & Universities (1971), 48 Ill. 2d 580, 586, 272 N.E.2d 497; Wooding v.L & J Press Corp. (1981), 99 Ill. App. 3d 382, 425 N.E.2d 1055.) However, even though the opposing party fails to provide counteraffidavits, the movant is not entitled to summary judgment unless the affidavits establish the right to summary judgment as a matter of law. (Session v. Chartrand Equipment Co. (1985), 133 Ill. App. 3d 719, 479 N.E.2d 376.) Moreover, such affidavits are to be strictly construed against the movant, and summary judgment should be granted only when the right to it is clear and free from doubt. Carruthers v. B.C. Christopher & Co. (1974), 57 Ill. 2d 376, 313 N.E.2d 457.

Plaintiffs argue that the circuit court erred when it found that an accounting had been given to plaintiffs. Specifically, plaintiffs contend that defendants did not offer any support in their affidavits for their contention that they had given plaintiffs adequate access to the partnership books.

Plaintiffs maintain that only Dr. Flashner’s affidavit addressed the issue of whether an accounting had been given. Dr. Flashner’s affidavit stated that he had left several messages on Dr. Laurence’s answering machine offering access to all the financial documents and that he sent two letters containing offers to Dr. Laurence to come in to view financial documents. Plaintiffs argue that Dr. Flashner’s statement in the affidavit did not address plaintiffs’ allegation in their complaint that, despite repeated attempts by plaintiffs, Dr. Flashner had refused access to the books. Moreover, plaintiffs argue that Dr. Flashner made no reference to any similar invitation to Dr. Martin to view the books. Notwithstanding the offers to Dr. Laurence, plaintiffs argue that such offers fall far short of satisfying defendants’ burden to sufficiently demonstrate and explain FMP’s financial matters.

In response, defense counsel argued at the hearing for summary judgment that 30 boxes of documents were made available to plaintiffs, but that plaintiffs did not take advantage of the offering. Defendants maintained that they provided everything to plaintiffs, that they gave plaintiffs the opportunity to come into FMP’s offices with their attorneys and accountants, and that they allowed plaintiffs four days in which to review the financial documents. However, plaintiffs never took advantage of defendants’ offer. Rather, plaintiffs’ accountant examined the books for only four hours.

At the hearing, plaintiffs admitted that they had wanted to identify documents which had not been produced by defendants, but had “run out of time.” However, as defendants correctly pointed out, plaintiffs had had over one year in which to study the documents: the documents were provided in March and June 1987; the hearing was held on October 18,1988.

Despite their acknowledgment that they “ran out of time,” plaintiffs maintain that the court should not have awarded summary judgment to defendants, but instead should have ordered an accounting for plaintiffs. Plaintiffs argue that the circuit court erred when it held that an appropriate accounting had been made. For support, plaintiffs rely upon Schane v. Conrad (1979), 68 Ill. App. 3d 961, 386 N.E.2d 431, and Lichtenstein v. Anvan Co. (1978), 62 Ill. App. 3d 91, 378 N.E.2d 1171.

In Schane, the parties were partners and when the partnership dissolved, one partner sued for an accounting. The circuit court refused to order an accounting, stating that the accounting had already been accomplished through the testimony of one of the defendants and his accountant and the former’s business records. The plaintiff in Schane argued that this information was not sufficient to establish an accounting and that he was entitled to a separate hearing. On appeal, the court reversed the circuit court, holding that the evidence produced in the circuit court was only a cursory summary which “fell far short of meeting the requirement of a complete adjustment of all partnership matters.” (Schane v. Conrad, 68 Ill. App. 3d at 966.) The court held that the plaintiff was entitled to a separate hearing because the circuit court’s award was based upon insufficient data. (Schane v. Conrad, 68 Ill. App. 3d at 967.) Pursuant to Schane, a suit for an accounting involves two separate and distinct determinations: (1) that an accounting is required, and (2) that plaintiff is due a sum certain. Schane v. Conrad, 68 Ill. App. 3d at 964.

Plaintiffs also rely upon Lichtenstein v. Anvan Co. (1978), 62 Ill. App. 3d 91, 378 N.E.2d 1171, where the plaintiffs, former partners, sued the partnership for an accounting. To satisfy the plaintiffs’ demands for an accounting, the defendant tendered an audit prepared by its accounting firm. Not satisfied with the defendant’s audit, the plaintiffs hired their own accounting firm to produce a second audit. The circuit court then formulated its own accounting based upon a combination of both audits and ruled that a hearing at which both sides could produce evidence in support of their accountings was unnecessary. (Lichtenstein v. Anvan Co., 62 Ill. App. 3d at 95.) The appellate court reversed, holding that a genuine issue of fact existed as to which accounting was proper and that the circuit court erred in refusing to grant an evidentiary hearing on this issue. Lichtenstein v. Anvan Co., 62 Ill. App. 3d at 96.

The Uniform Partnership Act provides that a partner has a right to have an accounting as to his interest when he leaves the partnership. (Ill. Rev. Stat. 1987, ch. 106½, par. 43.) An accounting is a statement of receipts and disbursements which should show all of the detailed financial transactions of the business including a listing of the original contributions and current assets and liabilities of the partnership. (Horwitz v. Ritholz (1984), 125 Ill. App. 3d 193, 465 N.E.2d 642; Schane v. Conrad (1979), 68 Ill. App. 3d 961, 386 N.E.2d 431; Polikoff v. Levy (1971), 132 Ill. App. 2d 492, 270 N.E.2d 540.) However, whether an accounting is ordered is largely a matter within the discretion of the circuit court. Sharps v. Stein (1980), 90 Ill. App. 3d 435, 413 N.E.2d 75.

The evidence in the instant case does not reveal or suggest that defendants’ production of documents was anything more than an invitation to rummage through selected files. The record fails to establish what the “30 boxes” of documents actually contained. Whether those boxes contained a list of all receipts and disbursements made, the original vouchers, bills, cancelled checks, and a listing of original contributions and current assets and liabilities is not known. The record does not reveal that defendants prepared or commissioned audits or otherwise explained or documented the manner and method by which the value or allocation of plaintiffs’ unit interests in the partnership were determined. In an action for an accounting, the defendant has the burden to prove that he has been completely frank and honest with his partner and has made full disclosure. (Bakalis v. Bressler (1953), 1 Ill. 2d 72, 115 N.E.2d 323.) Here, defendants argued and the circuit court concluded that, since many boxes of documents were made available for inspection by plaintiffs, an accounting had been given.

We do not deny plaintiffs’ responsibility to effectively use the discovery tools available under the supreme court rules. Indeed, there is no excuse for plaintiffs’ failure to properly review the documents given by defendants. Nonetheless, the circuit court’s finding that an accounting had been given was based upon insufficient evidence. We therefore conclude that, given the absence of evidence as to what documents had been tendered by defendants, the court’s finding that an accounting had been given was erroneous.

Plaintiffs next contend that summary judgment was improper because defendants’ affidavits did not address plaintiffs’ allegations that Dr. Flashner breached his fiduciary duty. Specifically, plaintiffs contend that even if the circuit court’s conclusion that defendants’ affidavits stood uncontradicted was correct, those affidavits did not negate all the questions of material fact as to Dr. Flashner’s breach of fiduciary duties.

Although the articles of partnership provided Dr. Flashner with sole discretion in handling the affairs of FMP, implicit in partnership agreements is a fiduciary duty between partners to act in the best interests of the partnership. (Couri v. Couri (1983), 95 Ill. 2d 91, 447 N.E.2d 334.) Moreover, where one party is the senior or “managing” partner, his obligation to deal fairly and openly and disclose completely is heightened. (Saballus v. Timke (1983), 122 Ill. App. 3d 109, 460 N.E.2d 755.) Further, when there is a question of breach of fiduciary duty of a managing partner, such partner has the burden of proving his innocence. Bakalis v. Bressler (1953), 1 Ill. 2d 72, 115 N.E.2d 323.

Even though the articles of partnership vested unfettered discretion in Dr. Flashner, he still owed a fiduciary duty to his fellow partners. Thus, a question of fact remained whether Dr. Flashner breached such a duty, notwithstanding the provisions in the articles of partnership. Consequently, the grant of summary judgment as to the issue of whether Dr. Flashner breached his fiduciary duty was error.

In granting summary judgment on plaintiffs’ fraud claims the court essentially found that plaintiffs had not stated a cause of action cognizable in Illinois. Though combining a motion for summary judgment with a motion to dismiss, absent a showing of prejudice, is not grounds for reversal (Kubik v. CNA Financial Corp. (1981), 96 Ill. App. 3d 715, 422 N.E.2d 1), it is clear that in finding that no issue of genuine fact was presented the court treated the motion as one for summary judgment. In so doing, the court made findings of fact; specifically, the court weighed the evidence provided by both parties and found for defendants. This was improper on a motion for summary judgment.

We conclude that the affidavits submitted by defendants did not remove questions of fact and therefore did not establish their right to summary judgment. The orders granting summary judgment must therefore be reversed.

II

Both parties appeal the denials of their motions for sanctions. Defendants contend that plaintiffs attached the original articles of partnership in order to fraudulently advance their case. Plaintiffs maintain that defendants motioned for sanctions in order to harass plaintiffs.

The grant or denial of a motion for sanctions rests within the sound discretion of the circuit court. (Ill. Rev. Stat. 1987, ch. 110, par. 2—611; Fried v. Barad (1989), 187 Ill. App. 3d 1024, 543 N.E.2d 1018.) Furthermore, as section 2 — 611 is penal in nature, its provisions must be strictly construed. (Diamond Mortgage Corp. v. Armstrong (1988), 176 Ill. App. 3d 64, 530 N.E.2d 1041.) The burden of proving entitlement to fees and costs rests on the party seeking sanctions. (Diamond Mortgage Corp. v. Armstrong, 176 Ill. App. 3d at 71.) Moreover, a petition for attorneys fees and costs must meet minimum specificity requirements so that a responding party has an opportunity to challenge and defend against the allegations; the petition must specifically state both which statements were falsely made and what fees were incurred as a result of such statements. Geneva Hospital Supply, Inc. v. Sanberg (1988), 172 Ill. App. 3d 960, 966, 527 N.E.2d 611.

From the record before us, we cannot say that the circuit court abused its discretion in denying the requests for sanctions. The denial of both motions must therefore be affirmed.

For the reasons stated, the judgment denying plaintiffs’ and defendants’ requests for sanctions is affirmed. The judgment granting defendants’ motion for summary judgment is reversed, and the cause is remanded for further proceedings consistent with this opinion.

Affirmed in part; reversed in part and remanded.

BILANDIC and SCARIANO, JJ., concur.

       Prior to Dr. Laurence’s dismissal from the partnership, she was absent from work for a period of approximately six months. FMP and Dr. Flashner repeatedly attempted to contact her by letters and mailgrams; however, she did not respond. Dr. Laurence stated that she did not receive most of the correspondences.

      On June 19, 1987, in her answers to a request to admit, Dr. Laurence stated that she could neither admit nor deny attending the meeting of April 10, 1985. However, Dr. Laurence did state that if she had voted that day she would have voted “with qualifications.”

      PIaintiffs never “motioned” for sanctions; rather, they requested in their reply to defendants’ motion that the defendants be sanctioned. Notwithstanding the fact that plaintiffs never filed a formal motion, the court denied both motions.