author: JUSTICE CAHILL

text:
    CHARLES E. PRATT, Plaintiff-Appellant, v. PROTECTIVE INSURANCE COMPANY, Defendant-Appellee (Express Freight Lines, Inc., et al., Defendants).
    First District (4th Division)
    No. 1 — 91—2011
    Opinion filed August 5, 1993.
    Rehearing denied September 10, 1993.

      Craig M. Armstrong, of Armstrong & Surin, of Ottawa, for appellant.
    Pretzel & Stouffer, Chartered, of Chicago (Robert Marc Chemers, Scott O. Reed, and Anne Scheitlin Johnson, of counsel), for appellee.
   JUSTICE CAHILL

delivered the opinion of the court:

This is an appeal from the dismissal of a declaratory judgment action. The plaintiff Charles E. Pratt sought a declaration of rights under an insurance policy issued by defendant Protective Insurance to defendant Express Freight Lines (Express). While delivering a load of freight for Express, defendant Rondell Andrews caused an accident in which Pratt was injured. Pratt presently holds an unsatisfied $425,000 personal injury judgment against Andrews. Andrews is not a named insured under the policy issued to Express. Pratt’s theory is that Andrews is covered even though unnamed in the policy because of his status as a “trip lessor” and driver for Express. The trial court dismissed Pratt’s action, holding that Pratt’s failure to join Express in the underlying negligence action, coupled with our ruling in an earlier appeal, Pratt v. Andrews (1987), 164 Ill. App. 3d 606, 518 N.E.2d 184 (Pratt I), and the language of the policy itself, bar his action. We reverse and remand. We hold that the failure to join Express in the underlying action, the decision in Pratt I, and the policy language relied upon by the trial court are not dispositive of Pratt’s rights.

In 1981, Andrews contracted with defendant Trailer Leasing Company, a subsidiary of Express, to deliver a load of freight. Andrews owned and operated the tractor/trailer rig used to pick up the goods at the Express freight yards in Chicago. Under the “trip lease” agreement which governed their relationship, Andrews leased his rig to Express for the delivery and is therefore known as the driver/trip lessor. As he drove to his destination, Andrews’ rig blew a tire on Interstate 80/94 in Hammond, Indiana. He veered into another rig driven by the plaintiff, Charles Pratt. Both rigs crossed through the center guard rail into the opposite lanes of the interstate and collided with two oncoming automobiles.

Pratt was seriously injured in the accident. He sued Andrews for negligence. For reasons not included in the record, he did not name Express as a defendant. Nevertheless, defendant Protective, the insurers for Express, undertook Andrews’ defense.

In November 1983, Andrews, through Protective’s attorneys, responded to an interrogatory alleging that he was insured under policy number “X-395” issued by Protective to Express. Six months later, however, Protective filed a declaratory judgment action, joining Pratt and Andrews as defendants, alleging no duty to defend or insure Andrews under the policy. Then, in July 1984, while its declaratory judgment action was pending, Protective changed its answer to the interrogatory in Pratt’s lawsuit, alleging that the policy did not cover Andrews. It then withdrew from defense of the case.

Pratt then amended his complaint to join Express as a defendant. The statute of limitations for negligence had run. Pratt joined Express, not on a negligence theory, but on a theory that the freight company had breached a contract to insure Andrews under the trip-lease agreement and Federal regulations governing interstate motor carriers. As a party injured by Andrews’ alleged negligence, Pratt claimed to be a third-party beneficiary of the insurance Express should have provided for Andrews. The trial court dismissed this count against Express and Pratt appealed.

While Pratt’s appeal and Protective’s independent declaratory judgment action were pending, a $425,000 default judgment was entered against Andrews in the ongoing negligence action. Then, in June of 1987, Protective sought and obtained a voluntary dismissal of its declaratory judgment action. In November of 1987, this court affirmed the trial court’s dismissal of Pratt’s action against Express. See Pratt v. Andrews (1987), 164 Ill. App. 3d 606, 518 N.E.2d 184.

Subsequently, Pratt filed his own declaratory judgment action to determine the scope of coverage of Protective’s policy. Pratt alleged coverage for Andrews under both the insurance policy and a surety bond numbered B-5084. The trial court dismissed the complaint, Pratt appealed, and that appeal is the matter before us.

Protective Insurance advances three procedural objections to Pratt’s claim on appeal: (1) Pratt, the injured party holding a judgment against Andrews, the tortfeasor, has no standing to litigate the rights of Andrews under an insurance policy in which Andrews is not a named insured; (2) Pratt is attempting to maintain a direct action against an insurer, an action prohibited by Illinois law; and (3) Pratt is collaterally estopped from litigating the insurance coverage because of our earlier decision in Pratt I.

Pratt presents the substantive question of actual coverage for Andrews under either the insurance policy or the surety bond.

We reject Protective’s procedural objections to the merits of Pratt’s claim. In examining the merits, we find as a matter of law that the surety bond does not provide independent insurance coverage for Andrews. We reverse and remand, however, for a hearing on the question of coverage under the insurance policy.

Protective stresses on appeal Pratt’s failure to properly join Express in the underlying negligence action against Andrews. A finding of negligence against Express arguably would have provided an easier route to recovery for Pratt. Nevertheless, tort liability and liability for payment under an insurance agreement are separate issues. That one option has been foreclosed does not necessarily preclude the other.

Protective argues that the only circumstance under which this policy would provide payment to an individual injured by a driver/ trip lessor occurs when a judgment has been obtained against Express itself, either alone or in conjunction with a judgment against the driver/trip lessor. Protective relies on the following language in the policy:

“The insured, as referred to herein, shall include:
Express Freight Lines, Inc.
4924 South 13th Street
Milwaukee, WI 53221
and all subsidiaries and shall also include officers, directors, and salaried personnel of said company and subsidiaries, while acting within the scope of their duties as such officers, directors and salaried personnel.” (Emphasis added.)

Because Andrews was neither an officer, director, nor salaried personnel of Express, Protective contends that the policy does not provide coverage directly to him. Protective admits, however, that Express might have been found liable for Andrews’ actions had Express been properly joined in the underlying negligence action. Where an injured party actually obtained a judgment against Express, Protective concedes that the policy would have allowed for payment to the injured party.

Pratt contends, however, that Protective should pay a party injured by a driver/trip lessor whether or not a judgment is obtained against Express. He relies on different language in the policy, set' forth in an “Additional Insured Endorsement” labelled endorsement No. 6:

“It is understood and agreed that Trailer Leasing Co., Inc.
4924 South Austin Avenue
Chicago, IL 60638
is hereby named as an Additional Insured hereunder with respect to: trailers leased by Express Freight Lines, Inc., Cobra Division, but only with respect to occurrences arising out of the negligence of the Named Insured, his agents, servants or employees.” (Emphasis added.)

The plaintiff argues that as a driver/trip lessor for Trailer Leasing Company, Andrews was an agent of Express Freight and, therefore, that the policy directly provided insurance for his negligence.

Nowhere in the memoranda filed in support of motions in the trial court, or in the briefs filed before this court, does Protective mention endorsement No. 6 or respond to the plaintiff’s agency argument. The plaintiff’s argument on this point is not foreclosed by any earlier ruling in this case that we can find, including the opinion in Pratt I. See Tobi Engineering, Inc. v. Nationwide Mutual Insurance Co. (1991), 214 Ill. App. 3d 692, 574 N.E.2d 160 (doubt as to potential coverage in insurance contract is to be resolved in favor of the insured); Protective Insurance Co. v. Coleman (1986), 144 Ill. App. 3d 682, 494 N.E.2d 1241 (where conflict exists between provisions of policy proper and provisions of endorsement, the endorsement will control).

Whether or not Andrews was an agent of Express is an issue that should be resolved. The endorsement alone, or some combination of the policy proper and the endorsement, may provide coverage for Andrews even without a judgment against Express.

Pratt also relies on a surety bond as separate justification for Protective’s duty to pay the judgment against Andrews. Protective filed the surety bond with the Interstate Commerce Commission and the Illinois Commerce Commission, effective April 1, 1979, as surety for Express.

We believe Pratt’s reliance on the surety bond for coverage is without merit. Unlike the more involved language of the policy, the bond states clearly that it applies only to “every final judgment recovered against the Principal.” (Emphasis added.) The bond also defines the principal as Express Freight Lines, Incorporated. This language goes to the heart of the issue in this case in that it states that only judgments obtained against Express need be paid by Protective through the surety bond. A clause in an insurance contract which is clear and unambiguous will be applied as written. (American Standard Insurance Co. v. Allstate Insurance Co. (1991), 210 Ill. App. 3d 443, 569 N.E.2d 162.) On remand, we limit the plaintiff’s arguments to the insurance policy.

Linked to Protective’s argument that Pratt cannot enforce his judgment when the principal is not sued is the question of standing. Standing to bring a declaratory judgment action requires an actual controversy capable of being affected by an order of the court and an interested party in that controversy. Ill. Rev. Stat. 1991, ch. 110, par. 2 — 701(a); Cottage-63rd Street Currency Exchange, Inc. v. Callahan (1982), 104 Ill. App. 3d 586, 432 N.E.2d 1258.

Here, the controversy is whether or not the insurance issued to Express will provide payment for a judgment against Andrews. An injured party may always bring a declaratory judgment action to determine a tortfeasor’s coverage under an insurance policy. (Reagor v. Travelers Insurance Co. (1980), 92 Ill. App. 3d 99, 415 N.E.2d 512.) An actual controversy exists in suits to determine coverage under a liability insurance policy when the insurer is called upon to pay or to defend a claim on behalf of the insured. (M.F.A. Mutual Insurance Co. v. Cheek (1975), 34 Ill. App. 3d 209, 340 N.E.2d 331.) Pratt has called upon Protective to pay the judgment against Andrews, satisfying the actual controversy requirement.

An individual has sufficient interest in a controversy when he possesses a personal claim, status, or right which can be affected by a determination of the controversy. (Underground Contractors Association v. City of Chicago (1977), 66 Ill. 2d 371, 362 N.E.2d 298.) Pratt obtained a judgment against Andrews of $425,000 in 1986, which remains unsatisfied. The possibility that insurance issued to Express is available to satisfy the judgment creates a sufficient interest for Pratt to be deemed an interested party with standing.

Protective also maintains that Pratt lacks standing because he does not hold a judgment against an insured of Protective. This point begs the question. All parties to this lawsuit recognize that Andrews was not a “named insured” under any form of insurance granted to Express. This declaratory judgment action, like the declaratory judgment action of Protective which was voluntarily non-suited, presents the issue of whether Andrews was covered even though he was not named, and if so, whether or not a judgment against him and only him must be paid by Protective. (See Clemmons v. Travelers Insurance Co. (1981), 88 Ill. 2d 469, 477, 430 N.E.2d 1104, 1108.) Because Protective and Express decided that the policy did not cover Andrews does not make it so. The insurer and the insured may not conspire to defeat the rights of an injured party. Reagor v. Travelers Insurance Co. (1980), 92 Ill. App. 3d 99, 102, 415 N.E.2d 512, 514.

Protective next argues that the court in Pratt I found Pratt lacked standing to litigate Andrews’ rights and therefore the law of the case bars Pratt’s claim here. (See Pratt I, 164 Ill. App. 3d at 609.) After holding that Pratt lacked standing “to litigate the insurance coverage extended to Andrews or Express Freight,” the court in Pratt I cited Batteast v. Argonaut Insurance Co. (1983), 118 Ill. App. 3d 4, 454 N.E.2d 706, in which a declaratory judgment action was dismissed for lack of standing where there had been no determination of liability in the underlying negligence action. The present case is now distinguishable from Batteast. Here, plaintiff has standing because he holds a judgment against Andrews and because Andrews is arguably an insured of Protective.

Protective finally argues that Pratt’s action should be prohibited because it is against the public policy of Illinois to allow direct action suits against an insurance company. (See Marchlik v. Coronet Insurance Co. (1968), 40 Ill. 2d 327, 239 N.E.2d 799.) The argument fails to recognize the underlying policy prohibiting such suits. The policy barring direct action suits is based on the rationale that disclosure of liability insurance coverage at a trial is unfair to an insurer because juries may award larger sums of money when they know the negligent party is insured. (Loeber Motors, Inc. v. Sims (1975), 34 Ill. App. 3d 342, 350-51, 340 N.E.2d 132, 137-38; see Marchlik, 40 Ill. 2d at 333.) As the court stated in Reagor v. Travelers Insurance Co. (1980), 92 Ill. App. 3d 99, 103, 415 N.E.2d 512, 515: “[Ajdherence to this policy is required when the issue of the insurer’s liability would be intermingled with that of the liability of the insured and with the assessment of damages.” Here, Pratt has his judgment in hand. The liability of the alleged insured and damages have already been determined in the separate suit against Andrews. There is no possibility of intermingling the insurer and insured’s liability in this case. See Kennedy v. Kiss (1980), 89 Ill. App. 3d 890, 897, 412 N.E.2d 624, 629-30.

We address, finally, Protective’s contention that under the opinion in Pratt I, Pratt is collaterally estopped from arguing that Andrews is directly covered by insurance issued to Express. The doctrine of collateral estoppel acts to bar litigation of an issue of ultimate fact which has been previously litigated and decided by a valid and final judgment. (People v. Thomas (1991), 216 Ill. App. 3d 469, 576 N.E.2d 1020.) For the previous judgment to be conclusive, it must appear clearly and certainly that the identical and precise issue was decided in the previous action. Benton v. Smith (1987), 157 Ill. App. 3d 847, 510 N.E.2d 952.

We do not see the issue decided in Pratt I as identical to that presented by today’s case. Pratt’s argument in the present case is an alternative to the argument raised in the earlier action. Pratt I decided the breach of a contract to insure argument which relied on the assumption that no insurance covered Andrews but that Express had a duty to provide such insurance under ICC regulations. The issue of whether or not the insurance Express possessed did in fact cover Andrews was meant to be resolved by Protective’s then pending declaratory judgment action. Protective argued this very point in its motion to dismiss Pratt’s count against Express in Pratt’s original negligence action.

Our analysis of the opinion in Pratt I leads us to conclude that we did not decide the issue of actual insurance coverage. We held: “Based upon this analysis, we determine that ICC regulations do not obligate Express Freight to obtain liability insurance in which Andrews would be specified as a named insured.” (Pratt I, 164 Ill. App. 3d at 609.) This holding does not preclude litigation of the issue of whether or not the insurance issued to Express, in which Andrews is not a named insured, nevertheless by express language or construction provided coverage to Andrews so that Protective would have to pay a judgment against Andrews. We indicated as much in the opinion: “Pratt does not seek a declaratory judgment regarding the scope of coverage provided by Express Freight’s insurance policy ***.” Pratt 1, 164 Ill. App. 3d at 610.

By taking a voluntary nonsuit in its declaratory judgment action, Protective left the issue of actual coverage unanswered. As of yet, the plaintiff has not had his day in court on the issue of coverage for Andrews. (Alderman Drugs, Inc. v. Metropolitan Life Insurance Co. (1979), 79 Ill. App. 3d 799, 398 N.E.2d 984 (granting of defendant’s motion to dismiss is not a declaration of the parties’ rights in a declaratory judgment action).) An injured party must be given at least one opportunity to litigate the question of a tortfeasor’s coverage under a liability insurance policy before the injured party’s interest in the insurance can be terminated. M.F.A. Mutual Insurance Co. v. Cheek (1975), 34 Ill. App. 3d 209, 340 N.E.2d 331.

There are some circumstances where a judgment against a named insured is not necessary to collect under a policy. (See, e.g., Clemmons v. Travelers Insurance Co. (1981), 88 Ill. 2d 469, 430 N.E.2d 1104 (judgment obtained against person driving with named insured’s permission but not against named insured); Industrial Indemnity Co. v. Vukmarkovic (1990), 205 Ill. App. 3d 176, 562 N.E.2d 1073.) Special considerations might apply in interpreting the insurance contracts of ICC motor carriers, however. Compare Wellman v. Liberty Mutual Insurance Co. (8th Cir. 1974), 496 F.2d 131 (interpreting ICC regulations and insurance contract to only require payment for final judgments against named insured or insurance carrier), with Cosmopolitan Mutual Insurance Co. v. White (D. Del. 1972), 336 F. Supp. 92 (holding that final judgment against driver/trip lessor not named in policy must be satisfied by insurance company); see generally Rediehs Express, Inc. v. Maple (Ind. Ct. App. 1986), 491 N.E.2d 1006 (providing history and purpose behind Federal regulation of motor carriers).

The trial court did not decide this issue. The trial court relied on our decision in Pratt I and the plaintiff’s failure to join Express as a co-tortfeasor. Our reading of the record in Pratt I leads us to conclude that these factors are not dispositive' of Pratt’s claim. Accordingly, we reverse and remand this matter to the trial court for further proceedings consistent with this opinion.

On remand, we ask the lower court to consider the substantive question of whether insurance policy X-395 requires Protective Insurance to pay the plaintiff for his judgment against Andrews. As the plaintiff’s cause will be reinstated, he is free to bring another motion to amend raising his estoppel argument based on Clemmons v. Travelers Insurance Co. (1981), 88 Ill. 2d 469, 430 N.E.2d 1104.

Reversed and remanded.

JIGANTI, P.J., and JOHNSON, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DANIEL O'REILLY, Defendant-Appellant.
    First District (4th Division)
    No. 1 — 91—2432
    Opinion filed August 5, 1993.

      David S. Mejia, of Oak Park (William S. Kunstler and John L. Pacht, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee G. Goldfarb, Kenneth McCurry, and Annette Collins, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE CAHILL

delivered the opinion of the court:

A jury found Daniel O’Reilly guilty of first degree murder and home invasion, both based on accountability. The trial court sentenced him to concurrent terms of 38 and 30 years in prison for each conviction. On appeal, he contends: (1) the State failed to prove him guilty beyond a reasonable doubt; (2) the court erred when it refused to instruct the jury on involuntary manslaughter; (3) the court erred when it tendered jury instructions for both felony murder and first degree murder on accountability; and (4) the court abused its discretion by sentencing him to an excessive term of 38 years. We affirm.

On the afternoon of June 15, 1989, the defendant, his girl friend Gina Tripoli, Manny Nieves, and John Schultz were at a house on 3715 N. Troy. Gina and Nieves both lived at the house. Schultz was there to exchange property he had stolen for cocaine held by the defendant and Nieves. Nieves took Schultz to his room on the second floor and showed him where he and the defendant kept drugs, jewelry, and guns. After they made the exchange they went out to a bar where they met with Carl Craig, the defendant’s friend. Later that night, Schultz left. At approximately 2 a.m. the defendant, Craig, and Gina returned to the house to find that someone had stolen the drugs kept in the house. The defendant immediately suspected Schultz. He took a sawed-off shotgun, Craig took a handgun, and they went to find him. They knew Schultz lived with Robert McCormick, so they drove to McCormick’s apartment at 2942 W. Belle Plaine. On the way they saw Schultz and McCormick in an alley near the apartment. The defendant and Craig stopped the truck, got out, and pointed their guns at Schultz and McCormick. McCormick asked what they were doing. McCormick and the defendant had known each other for 10 years and were friends. The defendant told McCormick he mistakenly thought they were members of a rival gang. McCormick then invited them to his apartment. Later, at trial, the defendant explained that he made up the story about rival gang members so he could get into McCormick’s apartment to look for the drugs he thought Schultz stole.

When they entered McCormick’s apartment, the defendant and Craig put their guns down. All then ingested cocaine. Soon the front doorbell rang, and the defendant told McCormick it was Gina. McCormick walked with the defendant to the front door and waited while the defendant walked down the stairs and talked to Gina alone. He told Gina he thought Schultz stole his drugs. He asked her to get some help and to send them up the back stairs. Then he returned to McCormick’s apartment and waited.

Twenty minutes later someone came up the back stairs, and the defendant again said it was Gina. He unlocked two locks on the back door, but had trouble with the third lock, so McCormick opened the door. Two men entered: Nieves, who had a gun, and Alex Jovanovich, Gina’s grandfather. Nieves ran into the dining room and the defendant followed. The defendant pointed his gun at Schultz and told him to stand against the wall. He tried to hit Schultz with the butt of the gun but Schultz moved out of the way. Then Nieves hit Craig across the mouth with his gun. The defendant stopped Nieves and said that Craig was with them. The defendant told Schultz to get down on the floor and asked him what he had done with the defendant’s stuff. Schultz said he did not take it. Nieves said, “I’ll show you how to take care of this” and shot Schultz four times, killing him.

The defendant, Nieves, Craig, and Jovanovich fled the apartment together. They hid their guns in a garbage can in the alley and returned to the house on Troy. Later that night they sent someone to retrieve the guns.

A month and a half later the defendant was arrested. He made a statement and told the police where they could find his gun. He admitted he planned to tie up Schultz, take him to the house on Troy, and force him to reveal where he hid the drugs. At trial the court instructed the jury on the charges of home invasion based on accountability, first degree murder based on accountability, and felony murder based on the underlying felony of home invasion. The jury found the defendant guilty of home invasion based on accountability and first degree murder based on accountability.

On appeal the defendant argues the State failed to prove him guilty beyond a reasonable doubt. On review the question is whether or not, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the elements of the crime beyond a reasonable doubt. (People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267.) For a conviction based on accountability, the State must establish: (1) the defendant solicited, agreed, or attempted to aid another in the commission of the crime; (2) the defendant participated before or during commission of the crime; and (3) the defendant concurrently intended to promote or facilitate commission of the crime. Ill. Rev. Stat. 1991, ch. 38, par. 5 — 2; People v. Carrizales (1993), 240 Ill. App. 3d 893, 608 N.E.2d 30.

The defendant argues he is not accountable for Nieves’ actions because he did not aid Nieves or ask him to shoot Schultz. He also argues he was intoxicated and so could not form the requisite intent to promote a crime.

A charge of accountability flows from the underlying crime. To convict on accountability, the prosecution must only prove the defendant had a specific intent to promote a crime, not necessarily a specific crime. Once the defendant’s specific intent to aid a crime is proven, he is accountable for any crime that happens as a consequence of the intended crime. People v. Terry (1984), 99 Ill. 2d 508, 460 N.E.2d 746.

Viewing the evidence in a light most favorable to the prosecution, we find the State proved beyond a reasonable doubt that the defendant was guilty of home invasion on accountability and first degree murder on accountability.

The defendant admitted he entered McCormick’s apartment to tie up Schultz and take him to the house on Troy. He intended to force Schultz to tell him where his drugs were, and he told Gina to send someone to aid him. He also admitted that when he and Craig first held Schultz and McCormick at gunpoint in the alley, he made up the story about rival gang members so McCormick would invite him into the apartment, where he could search for the drugs. This evidence shows the defendant intended to commit a crime. Further, the evidence of forethought and actions taken to set his plan in motion contradict the defendant’s claim that he was too drunk and drugged to form the intent to commit a crime.

The evidence also shows the defendant assisted Nieves in the home invasion. When Nieves arrived at the apartment, the defendant told McCormick it was Gina so McCormick would open the door. Then when Nieves entered and hit Craig, the defendant aligned himself with Nieves by telling him that Craig was “with them.” The defendant and Nieves both pointed their guns at Schultz, and the defendant ordered Schultz to get down on the floor. After Nieves shot Schultz, the defendant and Nieves fled the apartment together and hid their guns in the same place. Evidence that a defendant maintained a close relationship with his accomplice after the crime is an element the court may consider in finding accountability. (People v. Calvillo (1988), 170 Ill. App. 3d 1070, 524 N.E.2d 1054.) Even though, as the defendant argues, he did not send for Nieves specifically and did not order him to shoot Schultz, ignorance of what might happen does not preclude accountability. Calvillo, 170 Ill. App. 3d at 1078, 524 N.E.2d at 1060.

The defendant further maintains his conduct was merely reckless and the evidence insufficient to make him accountable for Nieves’ acts. In support he cites People v. Mitchell (1973), 12 Ill. App. 3d 960, 299 N.E.2d 472, where the court found insufficient evidence of accountability to prove the defendant guilty beyond a reasonable doubt. In Mitchell the defendant was held not accountable for the murder committed by his brother because he did not ask his brother to help him, did not assist his brother, and ran away when his brother arrived. The facts of this case are the opposite. Here, the defendant asked his girl friend to send aid, remained in the apartment when Nieves arrived, assisted Nieves by pointing his gun at Schultz, and left with Nieves after Nieves committed the murder.

The defendant next argues the court erred when it instructed the jury on felony murder but then refused to instruct the jury on the lesser included offense of involuntary manslaughter. He argues there was sufficient evidence introduced for the jury to find him guilty of mere reckless behavior and acquit him of the felony murder.

A defendant is entitled to instructions on lesser included offenses when a jury could rationally find him guilty of the lesser offense and acquit him of the greater. (People v. Balls (1981), 95 Ill. App. 3d 70, 419 N.E.2d 571.) However, an instruction on a lesser included offense is properly refused when the defendant is either guilty of the greater offense or not guilty of any offense. People v. Moore (1990), 206 Ill. App. 3d 769, 774, 565 N.E.2d 154, 157.

The defendant relies on People v. Taylor (1991), 212 Ill. App. 3d 351, 570 N.E.2d 1180. The court in Taylor held that the trial court erred in failing to instruct the jury on involuntary manslaughter when the defendant did not admit he committed the felony underlying the felony murder charge. The defendant was charged with felony murder after he allegedly robbed and assaulted the deceased. At trial the defendant denied he robbed the deceased. The appellate court held that the defendant was entitled to an instruction on involuntary manslaughter because the jury could have found him not guilty of the robbery but nevertheless guilty of involuntary manslaughter based on his assault of the deceased.

The State distinguishes Taylor on the grounds that the defendant was tried for murder based on his own act of assault, not murder based on the act of another. We agree. In Taylor the defendant killed the deceased. In this case the defendant did not kill the deceased, Nieves did. It is Nieves’ conduct, not the defendant’s, which is relevant to the issue of murder, and Nieves clearly intended to shoot Schultz.

We find the court properly refused to instruct the jury on the lesser included offense of involuntary manslaughter because if the defendant was acquitted of felony murder, he could not be found guilty of involuntary manslaughter. It is undisputed that Nieves committed the murder. So the issue for the jury based on the instructions it received was whether the defendant: (1) committed a home invasion; (2) committed felony murder based on the home invasion; (3) assisted Nieves in committing a home invasion; (4) assisted Nieves in committing a murder; or (5) none of these. These are the only conceivable crimes the defendant could have committed. If the jury found the defendant guilty of the underlying home invasion, it could find the defendant guilty of felony murder. If the jury acquitted the defendant of home invasion, it could not find the defendant guilty of felony murder. And if the jury acquitted the defendant of felony murder, it could not then find him guilty of involuntary manslaughter, because he did not kill Schultz. The jury found the defendant guilty of home invasion and murder both based on accountability — perfectly consistent verdicts given the facts before them.

Next the defendant contends the court incorrectly instructed the jury on both felony murder and first degree murder based on accountability. The record shows the defendant did not object to the instruction at trial and did not include the issue in his post-trial motion. As a result, it is waived. People v. Solis (1991), 216 Ill. App. 3d 11, 576 N.E.2d 120.

Finally the defendant argues the court abused its discretion by imposing an excessive sentence. The defendant further complains that the court ignored the mitigating factors of his potential for rehabilitation, his cooperation with the authorities, and his role as a mere accomplice when it sentenced him to 38 years in prison. The sentence for first degree murder is 20 to 60 years. (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—1(a).) When a sentence is within the guidelines we will not reduce it unless we find the court abused its discretion. (People v. Cabrera (1987), 116 Ill. 2d 474, 508 N.E.2d 708.) The record shows the court recognized that the defendant was not the principal in the murder of Schultz and considered the defendant’s “conduct and attitudinal changes” in sentencing. We find no abuse of discretion in the sentence of 38 years.

Affirmed.

JOHNSON and HOFFMAN, JJ., concur.


author: PRESIDING JUSTICE JIGANTI

text:
    DEAN IANOTTI, Plaintiff-Appellant, v. CHICAGO PARK DISTRICT et al., Defendants-Appellees.
    First District (4th Division)
    No. 1 — 92—1637
    Opinion filed August 5, 1993.

      Bledsoe & Tuohy, of Chicago, for appellant.
    Donald J. Suriano, of Chicago Park District, of Chicago, for appellees.
   PRESIDING JUSTICE JIGANTI

delivered the opinion of the court:

The plaintiff, Dean Ianotti, filed a notice of rejection of an arbitrator’s award seven days late. The issue we address is whether a party who files a notice of rejection of an arbitrator’s award one week late should be allowed under any circumstances to proceed to trial.

Ianotti brought a negligence action in the circuit court of Cook County against the defendants, the Chicago Park District and the Chicago Bears Football Club, for an injury he sustained as a spectator at a Bears football game. The case was assigned to mandatory arbitration as provided for in the Supreme Court Rules 86 through 95. (134 Ill. 2d Rules 86 through 95.) On February 3, 1992, an arbitration hearing was held and an award was entered for the defendants. Thirty-seven days later, on March 12, 1992, Ianotti filed a notice of rejection of the award in the circuit court pursuant to Supreme Court Rule 93(a) (134 Ill. 2d R. 93(a)), which reads as follows:

“Within 30 days after the filing of an award with the clerk of the court, and upon payment of the sum of $200 to the clerk of the court, any party who was present at the arbitration hearing, either in person or by counsel, may file with the clerk a written notice of rejection of the award and request to proceed to trial, together with a certificate of service of such notice on all other parties. The filing of a single rejection shall be sufficient to enable all parties to proceed to trial on all issues of the case without the necessity of each party filing a separate rejection.”

Four days later, the defendants filed a motion for judgment on the arbitrator’s award according to Supreme Court Rule 92(c) (134 Ill. 2d R. 92(c)), which states:

“In the event none of the parties files a notice of rejection of the award and requests to proceed to trial within the time required herein, any party thereafter may move the court to enter judgment on the award.”

The defendants argued to the circuit court that Ianotti failed to file a timely notice of rejection since he filed 37 days after the arbitrator’s award, instead of within the 30-day time period mandated by Supreme Court Rule 93(a). In his reply to defendants’ motion for judgment, Ianotti moved to voluntarily dismiss pursuant to section 2 — 1009(a) of the Illinois Code of Civil Procedure. Ill. Rev. Stat. 1989, ch. 110, par. 2-1009(a).

The circuit court sustained the defendants’ motion for judgment on the arbitrator’s award and entered judgment for the defendants. The court subsequently denied Ianotti’s motion to voluntarily dismiss his claim.

On appeal, Ianotti argues that the court erred in granting the defendants’ motion for judgment on the arbitrator’s award and thus deprived him of a trial because the court should have applied the standards set forth in the Illinois Code of Civil Procedure for setting aside judgments, in particular section 2 — 1301(e). (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1301(e).) Ianotti claims that his failure to file his notice of rejection on time was the result of an inadvertent error. He argues that since he was diligent in every other aspect of the case, in the interest of justice, he should have been allowed to have a trial. In the alternative, Ianotti contends the court should have allowed him to voluntarily dismiss his claim without prejudice.

The defendants rely on Yanan v. Ewing (1990), 205 Ill. App. 3d 96, 562 N.E.2d 1243, in which the plaintiff obtained an arbitration award against the defendant. The defendant never rejected the award but requested that the trial court set off the award in the amount of the plaintiff’s previous settlement with another defendant. The trial court allowed the setoff and the plaintiff appealed the decision. On appeal, the setoff was reversed. However, the court stated that the defendant’s failure to file a notice of rejection of the award within the prescribed 30-day period had waived the defendant’s right to proceed to trial on the plaintiff’s complaint.

We believe that a distinction exists between the instant case and Yanan v. Ewing (1990), 205 Ill. App. 3d 96, 562 N.E.2d 1243. In Yanan, the defendant never rejected the arbitration award and, on appeal, raised the issue of the effect of his failure to do so only parenthetically. In the case at bar, the rejection was filed one week late. The issue of whether relief may be given when a rejection is filed one week late because of an alleged inadvertent error is clearly different from whether a party has waived his right to a trial by failing to file any rejection whatsoever.

We believe that it is relevant to the resolution of the issue before us that Supreme Court Rule 86(e) provides that the provisions of the Code of Civil Procedure and the rules of the supreme court shall be applicable to actions placed in an arbitration track, except insofar as the mandatory arbitration rules provide otherwise. Moreover, Supreme Court Rule 183 (134 Ill. 2d R. 183) provides:

“This court, for good cause shown on motion after notice to the opposite party, may extend the time for filing any pleading or the doing of any act which is required by the rules to be done within a limited period, either before or after the expiration of the time.”

With these rules in mind, we believe that the court may extend the time for filing a notice of rejection of an arbitrator’s award upon a showing of good cause. In the instant case, however, Ianotti merely claimed that his failure to file within the prescribed 30-day period was a result of inadvertent error. We do not believe that it was an abuse of discretion for the trial judge to conclude that Ianotti’s assertion, without any further explanation, did not constitute good cause.

Ianotti also contends that the court erred by not allowing him to voluntarily dismiss his cause of action without prejudice. A plaintiff may at any time before trial begins voluntarily dismiss the action without prejudice. (Ill. Rev. Stat. 1989, ch. 110, par. 2— 1009(a).) Ianotti relies on Perez v. Leibowitz (1991), 215 Ill. App. 3d 900, 576 N.E.2d 156, in which the court affirmed the trial court’s decision to grant the plaintiff a voluntary dismissal following a mandatory arbitration. However, we believe Perez is distinguishable because the defendant in that case had filed a timely notice of rejection of the arbitrator’s award prior to the plaintiff’s motion to voluntarily dismiss. Thus, unlike the instant case, no judgment had been entered on the award and the parties were entitled to a trial pursuant to Supreme Court Rule 93(a). (134 Ill. 2d R. 93(a).) Ianotti’s rejection of the award was filed one week late and, as we have already discussed, Ianotti did not show good cause for the delay and, thus, the defendants’ motion for a judgment on the arbitrator’s award was granted. Ianotti then moved to voluntarily dismiss the action and the court denied his motion.

Our supreme court has held that the trial court may hear and decide a motion which has been filed prior to a motion for voluntary dismissal when that motion could result in a final disposition of the case. (Gibellina v. Handley (1989), 127 Ill. 2d 122, 535 N.E.2d 858.) Here, the defendants filed their motion to enter judgment on the arbitrator’s award prior to Ianotti’s motion to dismiss. The court properly heard and granted the defendants’ motion. Entering judgment on the arbitrator’s award constituted a final disposition of the case. Thus Ianotti’s motion to voluntarily dismiss was properly denied.

For all of the aforementioned reasons, the judgment of the circuit court is affirmed.

Affirmed.

CAHILL and HOFFMAN, JJ., concur.


text:
    MILES BEERMAN et al., Plaintiffs-Appellees and Counterdefendants-Appellees, v. LEE GRAFF et al., Indiv. and d/b/a Graff and Check Real Estate, et al., Defendants-Appellants (Lee Graff et al., Indiv. and d/b/a Graff and Check Real Estate, Counterplaintiffs-Appellants).
    First District (4th Division)
    No. 1 — 92—3936
    Opinion filed August 5, 1993.
    Rehearing denied August 31, 1993.

      Martin A. Blumenthal, of Northfield, for appellants.
    Jerome E. Boyle, of Alvin W. Block & Associates, of Chicago, for appellees.
   PRESIDING JUSTICE JIGANTI

delivered the opinion of the court:

The plaintiffs, Miles Beerman, Nathan Swerdlove, William Woloshin, Lawrence Barezky, Mitchell Weiss, and Joseph Rush (collectively, Beerman), and the defendants, Lee Graff and David Check, individually and doing business as Graff & Check Real Estate, and Mario Ceresini (collectively, Graff), entered into an oral partnership agreement in 1971 to own and manage a 78-unit apartment building in Hyde Park, Illinois, commonly known as the Poinsettia Apartments. The defendants were employed by the partnership to act as the managing agents of the building. Eighteen years later, the plaintiffs filed a complaint against the defendants alleging that they breached their fiduciary duties when they reported one of the apartments in the building as vacant while they had, in fact, rented the apartment. The plaintiffs further alleged that the defendants used partnership funds to construct an office in the building which was subsequently used to conduct nonpartnership business. The plaintiffs sought an accounting and injunctive relief.

The defendants’ answer alleged several affirmative defenses which were all predicated upon the plaintiffs’ failure to inspect the premises or to inquire about the vacant apartment. The defendants also alleged that the plaintiffs told one of the defendants that he could use and retain the apartment as a perquisite and as part of his compensation for managing the building. The defendants also filed a counterclaim alleging that the plaintiffs were unjustly enriched because they did not compensate the defendants for the value of their labor in constructing an office in the building which they used for partnership purposes. They further counterclaimed for dissolution of the partnership pursuant to the Uniform Partnership Act (Ill. Rev. Stat. 1989, ch. 106½, par. 32) and for the recovery of legal fees which the partnership paid the plaintiffs’ law firm for legal work concerning partnership business. They also asked that approximately $1,000 in legal fees which were deducted from their capital accounts be apportioned to all of the partners.

Following a bench trial, the court ordered the defendants to file an accounting with respect to the rental value of the apartment from the inception of the partnership through the defendants’ termination as managing agent by court order in 1989. The parties stipulated the value of the apartment rental to be $70,430. The court also entered judgment against the defendants on their counterclaims for unjust enrichment, dissolution of the partnership, and for legal fees paid to the plaintiffs’ law firm. The court ordered that $1,004.77 in legal fees be allocated to the capital accounts of each partner in proportion to each partner’s respective interest in the partnership.

The defendants appeal from the court’s order requiring an accounting and from the amount of the damage award. The defendants further allege that the court erred by not ordering a return of the legal fees which the partnership paid to the plaintiffs’ law firm and in not granting a dissolution of the partnership.

At trial, William Woloshin testified that he is an attorney and practices at the law firm of Beerman, Swerdlove, Woloshin, Barezky, Becker, Genin and London. In 1971, he and Beerman, Swerdlove, Barezky, Weiss, and Rush purchased an ownership interest in the Poinsettia Apartments building in Hyde Park, Illinois. Graff and Check managed and owned a portion of the building prior to the purchase. Graff and Check retained a 23% interest in the building. All of the partners agreed that Graff and Check would remain as managers of the building and a monthly management fee would be paid to them. Graff was primarily responsible for the day-to-day management of the building which included collecting rents and taking care of building problems. Woloshin was the liaison between Graff and the remaining partners. Graff would send him monthly statements which listed each apartment unit, the tenant’s name, the rental charged, the rental collected, gross rentals for the month, expenses, and the checking account balance. Woloshin stated that he received these statements from Graff on a monthly basis for 18 years.

Woloshin visited the building only a few times a year. He believed that Graff was running the building properly. He also sporadically spoke with Graff on the telephone. He stated that he relied on Graff to operate the entire building and absolutely trusted him.

Beginning in 1987, Graff spoke of retirement and would discuss selling Poinsettia. In 1988, Graff’s attorney contacted Woloshin and told him that Graff had negotiated a contract for the sale of the building to Abe Mizrahi. The purchase offer was rejected by the remaining partners because they were not willing to pay Graff the commission which Graff had structured as a part of the sale.

At one point in the negotiations, Mizrahi telephoned Woloshin and told him that while he was reviewing the records, he noticed that apartment 401 was listed as vacant. However, Mizrahi observed that there was a name on the doorbell to that apartment. Graff had told Mizrahi that apartment 401 was his apartment. Woloshin stated that he had not known that Graff was living in the apartment. Woloshin never agreed to allow Graff to use the apartment as his personal perquisite. He never approved such an arrangement. Woloshin contacted other partners and they did not know anything about Graff’s arrangement either. Woloshin telephoned Graff, who told him that he was not living in the apartment at the time because it was rented. Graff told him that he had lived there in the past and insisted that Woloshin knew about it. Woloshin stated that he knew that Graff was living there for a short time in 1971 because Graff was going through a divorce, but that the divorce had been over for 17 years. Graff told him that he had lived there for a time, kept it empty for 15 years to accommodate his wife’s visiting family from New York, and that he had just rented it recently. Woloshin was told later by the building superintendent that the apartment had been rented for the past several years but a name had never gone on the sheets.

Woloshin further testified that he and another partner went to the partnership premises and found Graff’s entire staff working in a room on the main floor of the building. The room measured approximately 30 by 15 feet and was fully equipped with office machinery. Woloshin stated that he never approved of the construction of an office on the premises. About three weeks prior to his visit to the building, he had a conversation with Graff in which Graff told him that he had put a desk in a linen closet of the building and was using it as an office. Upon their discovery of the newly constructed office, Woloshin and another partner immediately dispatched a letter to Graff terminating his management of the building and asking him to remove his business from the premises. Graff telephoned him and was screaming at the receptionist and threatened to kill her. Graff spoke with Woloshin and threatened to punch him out. Graff and Check were ultimately removed from their management position by court order.

Woloshin testified that the partnership had lost approximately $65,000 as a result of the vacancy in the apartment Graff had been using. His calculations were based upon the rental rate for other comparable apartments.

Mitchell Weiss testified that he is a general contractor and a partner in the Poinsettia Apartments investment. Weiss stated that in 1971 he visited the building and became aware that Graff was living in one of the apartments. He was not aware that Graff was not paying rent. Weiss never agreed that Graff could live there for free, nor had he ever agreed to treating the apartment as Graff’s personal perquisite.

Lee Graff testified that at the time he became partners with the plaintiffs, he and Woloshin agreed that his compensation for managing the building would be a certain fee and an apartment to live in, free of charge, as a perquisite. David Check was also present during that conversation. Graff testified that he lived in the apartment from 1971 to 1973. He continued to maintain the apartment to accommodate his friends and family. Graff prepared the monthly statements for the apartment complex and always listed his apartment as vacant. Graff stated that he constructed an office in the building with Woloshin’s concurrence. The materials were paid for by the partnership and the labor was done, free of cost, by the manager and janitor of the building.

In 1989, Graff told Woloshin that he wanted to retire and sell the building. Woloshin told him that he did not want to sell, but if Graff was retiring, he would go along with a sale. Abe Mizrahi made them an offer which was rejected. Woloshin never discussed the vacant apartment with Graff during this time. Mizrahi sued the partnership for not closing the sale of the building. The firm of Beerman, Swerdlove, Rush, and Weiss represented the partnership in the lawsuit and was paid $6,878 from partnership funds for legal fees. Graff was never consulted with regard to payment of the legal fees. The same firm had represented the partnership prior to Mizrahi’s lawsuit in another matter.

David Check testified that he is a partner in the Poinsettia Apartments investment. Check stated that he was present when Woloshin agreed to allow Graff to use an apartment in the building as a perquisite. For the last 18 years, Check had been aware that Graff was using the apartment as his perquisite.

Woloshin was recalled as a witness and testified that when his law firm represented the partnership in the lawsuit filed by Mizrahi, none of the partners who were involved with the Poinsettia Apartments investment worked on the lawsuit. Additionally, the law firm gave the partnership a discounted rate.

Graff contends on appeal that the court erred in ordering an accounting for the vacant apartment because the plaintiffs had notice of Graff’s use of the apartment, no partner ever inquired as to Graff’s use of the apartment, and the plaintiffs ratified Graff’s use of the apartment. Graff argues that the apartment was part of his compensation and a perquisite. Additionally, he never hid the fact that the apartment was vacant and reported on monthly statements for 18 years that no rent was being collected from the use of this apartment.

Graff cites to section 12 of the Uniform Partnership Act, which imputes notice and knowledge of one partner to the partnership. Graff argues that since Check knew that he was using the apartment as a perquisite, his knowledge can be imputed to the partnership.

This argument can readily be dismissed because the court found that both Graff and Check had breached their fiduciary duty to the partnership. We do not believe that two partners acting in concert as managing partners can rely on each other’s knowledge of a wrongdoing as evidence of the partnership’s knowledge of the wrongdoing.

Graff supports his ratification argument by citing Hofner v. Glenn Ingram & Co. (1985), 140 Ill. App. 3d 874, 489 N.E.2d 311, for the proposition that when a principal, with knowledge of the material facts of an unauthorized transaction, takes a position which is consistent with affirmation of that transaction, the principal ratifies the act. However, as Hofner makes clear, whether the alleged acts of a partnership constitute a ratification is a question of fact. The only evidence which Graff points out in his brief is Woloshin’s testimony that he knew Graff was living in the apartment, Weiss’ testimony that he knew Graff was living in the apartment, and Check’s testimony that he knew Graff was living there as a part of his compensation.

However, as we have discussed earlier in this opinion, Woloshin testified that he knew Graff was living in the apartment in 1971 because he had recently been divorced, but he was not aware that he had been living there or using the apartment for his own purposes for another 17 years. Further, Woloshin repeatedly stated that he never agreed to allowing Graff to use the apartment as a part of his compensation or as a perquisite. Moreover, Weiss testified that he knew Graff was living in the apartment in 1971 but was not aware that Graff was not paying rent. The trial judge is in the best position to resolve conflicts in the testimony and to determine the credibility of the witnesses. (Flynn v. Cohn (1992), 154 Ill. 2d 160, 607 N.E.2d 1236.) We do not believe that the court’s finding for the plaintiffs was against the manifest weight of the evidence.

Graff further assumes that the partners had a duty to inquire as to Graff’s use of the apartment. In his brief, Graff has ignored the duty which was at issue in this lawsuit, his fiduciary duty as managing partner. A managing partner who is responsible for virtually all of the financial aspects of the partnership has a duty, as trustee, to maintain regular and accurate records and to account for partnership transactions. (Couri v. Couri (1983), 95 Ill. 2d 91, 447 N.E.2d 334.) The burden of proof lies with the defendant partner in an accounting action to show by clear, convincing, unequivocal and unmistakable evidence that he has been completely frank and honest with his partner and has made full disclosure and not dealt secretly behind his partner’s back. (Peskin v. Deutsch (1985), 134 Ill. App. 3d 48, 479 N.E.2d 1034.) Where there is a question of breach of a fiduciary duty of a managing partner, all doubts will be resolved against him, and the managing partner has the burden of proving his innocence. Labovitz v. Dolan (1989), 189 Ill. App. 3d 403, 545 N.E.2d 304.

The court stated that the evidence was clear and convincing that the defendants had violated their fiduciary duties to the partnership, as the managing partners admittedly were responsible for virtually all of the financial aspects of the partnership, by not supplying the other partners with accurate records. The court further found that the evidence was “woefully lacking” on behalf of Graff to show that an agreement was made that the apartment would be a perquisite.

We believe the court’s finding is supported by the evidence. Essentially, Graff’s only evidence in support of his position was his testimony that the apartment was a part of his compensation and the corroborating testimony of Check. On the other hand, his evidence was contradicted by the fact that he reported the apartment as “vacant” for 18 years and by Woloshin’s complete denial of any agreement with Graff. Given Graff’s role as managing partner and the burden of proof required of a managing partner, we do not believe the court’s decision was against the manifest weight of the evidence.

Graff also contends that the damage award was speculative because it was based upon the rental value of the apartment for 18 years. Graff argues that given the fact that there were usually 4 to 12 vacancies in the building every month, it is possible that the apartment that he used could have been vacant, thus generating no profit.

While absolute certainty concerning the amount of damages is not necessary, the evidence must show a basis for its calculation with a fair degree of certainty. (Posner v. Davis (1979), 76 Ill. App. 3d 638, 395 N.E.2d 133.) Damages are speculative when uncertainty exists as to the fact of damages, rather than to the amount of such damages. De Koven Drug Co. v. First National Bank (1975), 27 Ill. App. 3d 798, 327 N.E.2d 378.

We believe the damage award was amply supported by the evidence. The parties stipulated to the rental value of the apartment. Moreover, Woloshin testified to the calculations which supported the damage award. We do not believe that Graff’s argument supports a finding that the damage award was speculative.

Graff further argues that the court erred in finding against the defendants on their counterclaim to have the plaintiffs’ law firm return fees paid to it by the partnership. Gráff cites the Uniform Partnership Act, which provides that a partner cannot be remunerated for acting in the partnership business, unless there is a special agreement among the partners. Ill. Rev. Stat. 1989, ch. 106½, par. 18.

We believe the evidence supports the court’s finding. The law firm of Beerman, Swerdlove, Woloshin, Barezky, Becker, Genin and London had represented the partnership in a matter prior to the lawsuit at issue without any objection by Graff. This prior representation was evidence of an agreement among the partners to employ the law firm to represent the partnership. Thus, the subsequent representation by the same firm was not in violation of the Uniform Partnership Act.

Finally, Graff argues that the court erred in not granting the defendants’ counterclaim for dissolution. On appeal, Graff has argued that the partnership should have been dissolved because partnerships formed without reference to any term are subject to dissolution at any time by the express will of any partner, as delineated in section 31(b) of the Uniform Partnership Act. However, in Graff’s counterclaim and at trial, Graff argued under section 32(l)(f) of the Uniform Partnership Act that the partnership should be dissolved under circumstances which render a dissolution equitable. All of the testimony at trial focused on how the partnership was deadlocked on the issue of the sale of the building and the general conflicts among the partners. The court found that the evidence did not support a dissolution at this time. Graff cannot now argue dissolution using a different theory which was not presented at trial. (Kravis v. Smith Marine, Inc. (1975), 60 Ill. 2d 141, 324 N.E.2d 417.) A party waives his right to complain of an error where to do so is inconsistent with the position taken by the party in an earlier court proceeding. (Auton v. Logan Landfill, Inc. (1984), 105 Ill. 2d 537, 475 N.E.2d 817.) Thus, we find that Graff has waived this argument on appeal.

Accordingly, for all of the aforementioned reasons, the judgment of the circuit court is affirmed.

Affirmed.

JOHNSON and CAHILL, JJ., concur.


author: JUSTICE COUSINS

text:
    TRAVELERS INSURANCE COMPANY, Plaintiff-Appellee, v. FIRST NATIONAL BANK OF BLUE ISLAND, Defendant-Appellant.
    First District (5th Division)
    No. 1 — 91—3491
    Opinion filed August 6, 1993.
    Jenner & Block, of Chicago (Larry M. Wolfson, C. David Watson, and Daniel S. Goldman, of counsel), for appellant.
    Coffield, Ungaretti & Harris, of Chicago (Kevin M. Flynn and Barbara J. Anderson, of counsel), for appellee.
   JUSTICE COUSINS

delivered the opinion of the court:

In this case of first impression, Travelers Insurance Company (Travelers), the appellee, filed a mortgage foreclosure action in March 1989 on property commonly known as the Holiday Plaza Complex in Matteson, Illinois. In a first mortgage, security agreement and collateral assignment of rents dated in November 1985, debtors granted and assigned to Travelers a security interest in all “rents, issues, proceeds and profits *** from mortgaged premises.” Travelers recorded these documents and a UCC-2 financing statement with the recorder of deeds of Cook County in December 1985 and filed a UCC-1 financing statement in the office of Secretary of State of Illinois in February 1986. First National Bank of Blue Island (FNBBI), the appellant, intervened and, in 1991, filed a motion for summary judgment alleging that Travelers failed to properly create and perfect a security interest in the hotel receipts and also allowed the financing statement it did file to lapse. FNBBI claimed a priority interest in the hotel receipts because, in 1986, as security for a loan from FNBBI to debtors, FNBBI was granted a security interest in “all accounts receivable.” FNBBI claims that its security interest was perfected by the filing with the Illinois Secretary of State in September 1986 of a UCC-1 financing statement and that hotel revenues are personal property in which a security interest can only be perfected by the filing of a UCC-1 financing statement.

Travelers filed a cross-motion for summary judgment claiming a prior security interest. Travelers also claims inter alia that hotel receipts are “rents,” that rents are real property, and that its loan documents were properly recorded and filed. Travelers further claims that the Uniform Commercial Code (UCC) (Ill. Rev. Stat. 1989, ch. 26, par. 1 — 101 et seq.) does not apply to “an interest in or lien on real estate.” The circuit court judge found inter alia that all of the hotel receipts are “rents” or an interest in real property and not accounts receivable; that Travelers has a properly perfected, first priority security interest in the hotel receipts rather than an interest in personal property by virtue of the recorded documents; that Travelers also has a properly perfected, first priority security agreement in all of the remaining property located in or on the property, including but not limited to personal property, by virtue of the recording [sic] of its UCC-1 financing statement on February 26, 1986, and the recording of its UCC-2 financing statement with the recorder of deeds on December 2, 1985. Accordingly, the circuit court denied the motion of FNBBI, granted Travelers’ cross-motion for summary judgment and entered foreclosure.

We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In 1985, Travelers lent $23 million to Mid-Continent Builders, Inc., Matteson Hotel Corporation, MCBI Development Co., and MCBI Hospitality Corporation (collectively debtors). The debtors operated a Holiday Inn hotel complex in Matteson, Illinois.

As security for the debt, Travelers received, inter alia, a first mortgage and security agreement; an assignment of leases and rents; a collateral assignment of rents; a UCC-1 financing statement according to provisions of Uniform Commercial Code section 9 — 401 (Ill. Rev. Stat. 1989, ch. 26, par. 9 — 401) and a UCC-2 financing statement according to provisions of Uniform Commercial Code section 9 — 402 (Ill. Rev. Stat. 1989, ch. 26, par. 9 — 402). All of the documents were dated as of November 25,1985.

In the first mortgage and security agreement, debtors granted Travelers a security interest in the debtors’ hotel, and in

“all rents, issues, proceeds and profits accruing and to accrue from Mortgaged Premises, and all right, title and interest of Mortgagor in and to any and all leases approved by Mortgagee.”

The document also provided:

“Mortgagor hereby sells, assigns and transfers to Mortgagee all of its right, title and interest in and to Leases and all rentals, issues, proceeds and profits now due and which may hereafter become due ***.”

Similarly, the collateral assignment of rents provided that the debtors

“transfer and set over unto [Travelers] *** all of the rents, earnings, income, issues and profits now due and which may hereafter become due, payable or collectable.”

Finally, Travelers’ UCC-1 and UCC-2 financing statements each stated that Travelers’ security covered all “income, rents, issues, and profits arising from the operation of the Land and Improvements.”

Travelers filed its mortgage and rent assignments with the Cook County recorder of deeds on December 2, 1985. It filed its UCC-2 financing statement on December 12, 1985. It filed its UCC-1 financing statement with the Illinois Secretary of State on February 20, 1986. However, Travelers did not file a UCC-3 continuation statement within the requisite five-year period. See Ill. Rev. Stat. 1989, ch. 26, par. 9 — 403.

On September 18, 1986, FNBBI lent the debtors approximately $2 million, and entered into a written loan and security agreement with them, which was periodically renewed. At the time FNBBI filed its summary judgment motion, debtors owed FNBBI $581,028.80. The security agreement granted FNBBI a security interest in the following property of the debtors:

“all present and hereafter acquired or created inventories of goods and supplies held for sale or for use in debtor’s business, fixtures and all accounts, accounts receivable." (Emphasis added.)

FNBBI’s UCC-1 financing statement listed the same.

FNBBI filed its UCC-1 financing statement with the Illinois Secretary of State on September 22, 1986, and filed a UCC-3 continuation statement on June 25,1991.

Travelers filed this action on March 8, 1989, to foreclose its mortgage. The initial complaint did not name FNBBI as a defendant. FNBBI filed a motion for leave to file an intervening petition on February 7,1990, which the circuit court granted.

On May 9, 1991, FNBBI filed a counterclaim and cross-claim asserting that FNBBI has a well-perfected first priority security interest, superior to any interest of Travelers, in all of the debtors’ personal property including the hotel’s revenues. The hotel revenues consisted of funds received in payment for hotel rooms, as well as other services provided by the hotel, such as restaurants, bar, maid service, and room service.

On May 28, 1991, FNBBI filed a motion for summary judgment, claiming that its security interests took priority because Travelers’ purported security interests were invalid and/or unperfected. Specifically, FNBBI argued that Travelers had no well-perfected security interest in the collateral because (1) hotel revenues are properly characterized as personal property, such that perfection of a security interest in hotel revenues is governed by the UCC and not by real estate recording statutes and (2) because, a UCC financing statement which Travelers filed with the Secretary of State was ineffective because it failed to adequately describe the collateral and because Travelers had allowed it to lapse by failing to file a continuation statement within five years.

On July 2, 1991, Travelers filed a cross-motion for summary judgment. Travelers asserted that (1) hotel revenues are properly characterized as “rents,” rather than as personal property and thus Travelers’ recording of its loan documents pursuant to Illinois real estate law perfected a security interest in the hotel revenues; and (2) that Travelers’ financing statement adequately described the collateral, and did not lapse, despite the fact that five years passed and no continuation of the financing statement was filed.

In an order dated September 26, 1991, after a hearing, the circuit court denied FNBBI’s motion and granted Travelers’ cross-motion for summary judgment. The court found that: (1) the recording of Travelers’ mortgage and collateral assignment of rents created a valid first priority security interest in the hotel revenues as the revenues were properly characterized as rent, not personal property; (2) Travelers’ UCC-1 financing statement also properly perfected a first priority security interest in the revenues and other personal property of the debtors and had not lapsed; and (3) FNBBI’s UCC-1 financing statement, which covered the hotel’s “accounts” and “accounts receivable,” failed to properly perfect an interest in the hotel revenues.

DECISION

In this case, the primary issue raised by the parties’ summary judgment motions is the priority of the parties’ respective security interests. This is a question of law. (See Hatton v. Money Lenders & Associates, Ltd. (1984), 127 Ill. App. 3d 577, 582, 469 N.E.2d 360, 365.) Summary judgment is particularly appropriate where, as here, all parties file for summary judgment. In re Estate of Bresler (1987), 159 Ill. App. 3d 535, 540, 510 N.E.2d 1057, 1059.

This court reviews a circuit court’s resolution of disputed questions of law de novo, and, therefore, the circuit court’s decision regarding legal issues is accorded no deference. See In re Marriage of Skinner (1986), 149 Ill. App. 3d 788, 791, 501 N.E.2d 311, 313; Best Coin-Op, Inc. v. Old Willow Falls Condominium Association (1983), 120 Ill. App. 3d 830, 833, 458 N.E.2d 998,1000.

The characterization of hotel receipts as real or personal property determines how an interest in hotel receipts is perfected. If hotel receipts constitute an interest in realty, they are not governed by the Uniform Commercial Code, which relates only to interests in personalty, and need be perfected only by filing in the Cook County recorder of deeds office. See Ill. Rev. Stat. 1991, ch. 26, par. 9 — 104(j) (Uniform Commercial Code does not apply to “the creation of or transfer of an interest in or lien on real estate, including a lease or rents thereunder”).

FNBBI contends that the great weight of authority and substantial public policy concerns demonstrate that the court erred in finding that hotel revenues are real property.

We disagree.

An analysis of existing law and public policy considerations demonstrates that the court in this case correctly held that hotel receipts are “rents” and an interest in realty and that Travelers properly perfected its interest in those receipts through recording its interest with the office of the Cook County recorder of deeds.

The brief of FNBBI cites an Oklahoma bankruptcy case which holds that, in contrast to tenants, hotel guests are mere licensees who receive only a personal contract allowing them occupancy. In re Greater Atlantic & Pacific Investment Group, Inc. (N.D. Okla. 1988), 88 Bankr. 356, 359.

FNBBI also cites a California bankruptcy case which holds that, unlike rent, hotel fees constitute payment for a package of services as well as for a room. In re Ashkenazy Enterprise, Inc. (C.D. Cal. 1986), 94 Bankr. 645, 647.

Indeed, FNBBI contends that one of the primary ways in which to distinguish tenants from hotel guests is through services which hotels offer. FNBBI also posits that a reversal of the court’s ruling would further uniformity, clarity, and certainty in Illinois commercial law.

The bankruptcy cases which FNBBI has cited in support of its contention do not have precedential value and we are unpersuaded by FNBBI’s assertions.

The conclusion that room revenue is not rent generated by real property is counterintuitive. It is indisputable that the common understanding is that rent is compensation for use of property for shelter. Also, the commonly held view is that a hotel guest primarily seeks shelter not service. The court’s finding conforms to the commonly held view.

Black’s Law Dictionary defines “rent” as:

“Consideration paid for use or occupancy of property. *** [Compensation or return of value given at stated times for the possession of lands and tenements corporeal.” Black’s Law Dictionary 1297 (6th Ed. 1990).

This definition affords no basis for distinguishing a tenant from a hotel guest in determining what is rent. Further, the reliance on the services provided by the owner of the building or rooms in a hotel for the distinction between a tenant and a hotel guest can become uselessly blurred as a high-class apartment building may offer more services than a low-class hotel. The validity of security agreements should not be contingent upon such vagaries as the length of occupancy or the extent of services provided. Revenues generated by the residential occupancy of real estate property should be “rents,” without reference to term of occupancy or level of services. In re S.F. Drake Hotel Associates (N.D. Cal. 1991), 131 Bankr. 156, 159.

Illinois law alone governs the characterization of hotel receipts in Illinois. Property interests are created and defined by State law. Butner v. United States (1979), 440 U.S. 48, 54-55, 59 L. Ed. 2d 136, 141-42, 99 S. Ct. 914, 917-18.

In defining property, real or personal, judicial decisions should conform with laws enacted by the legislature. Relative to laws enacted by the legislature, the Illinois Hotel Operators’ Occupation Tax Act defines “rent” as “consideration received for occupancy, valued in money, whether received in money or otherwise including all receipts, cash, credits and property or services of any kind or nature.” (Ill. Rev. Stat. 1991, ch. 120, par. 481b.32(b).) The hotel operator’s occupation tax is imposed upon “persons engaged in the business of renting, leasing or letting rooms in a hotel.” (Ill. Rev. Stat. 1991, ch. 120, par. 481b.33(a).) We also note that section 2 of the Municipal Tax Complianee Act refers to “rental” for occupancy of hotel or motel rooms. Ill. Rev. Stat. 1991, ch. 24, par. 1552.

The parties to this appeal have cited only one bankruptcy case in Illinois which has given consideration to whether hotel receipts in Illinois are characterized as real estate. In re Schaumburg (N.D. Ill. Jan. 12, 1989), No. 87B 14301.

In Schaumburg, the United States bankruptcy judge concluded that “the Hotel’s” revenues fall within the general grant of a security interest in “all rentals, income, and profits” and that under Illinois law, aU hotel receipts, including income from incidental services such as telephone and food and beverage service, are deemed to arise primarily from the hotel occupant’s use of the underlying real estate and hence are an interest in real estate. Schaumberg, slip op. at__

The characterization of hotel receipts was considered in Springfield Hotel-Motel Association v. City of Springfield (1983), 119 Ill. App. 3d 753, 457 N.E.2d 1017. In this case, the court considered the City of Springfield’s use of proceeds from a tax assessed on hotel room revenues. Under Springfield’s home rule powers, revenue from taxes on the use of personal property could be used for general corporate purposes. In contrast, revenue from taxes on an occupation providing services could only be expended for a limited number of purposes. Thus, the court had to determine whether hotel room revenues derived from the use of property or from the providing of a service. The court found that the city’s hotel tax was assessed on the use of property, not on the providing of a service. The court stated:

“In the case of the rental of a hotel or motel room, it is our opinion that any service *** is only incidental to the use of the tangible property ***.” Springfield Hotel-Motel Association, 119 Ill. App. 3d at 761.

The court’s finding in this case that hotel receipts are “rent” conforms to provisions in the Illinois Hotel Operators’ Occupation Tax Act (Ill. Rev. Stat. 1991, ch. 120, par. 481b.32(b)) and the Municipal Tax Compliance Act (Ill. Rev. Stat. 1991, ch. 24, par. 1552). The court’s finding also conforms with the decision in Springfield Hotel-Motel Association v. City of Springfield, 119 Ill. App. 3d 753, 457 N.E.2d 1017. The court did not err.

We now hold that hotel receipts are “rents.”

We also hold that Travelers perfected a first priority security interest in the hotel receipts through its action in recording the loan documents with the Cook County recorder of deeds. Thereafter, no further action by Travelers was necessary to perfect its security interest.

However, assuming, arguendo, that further action was necessary, the court correctly found that Travelers also has a properly perfected, first priority security agreement in all the remaining property located in or on the property, including but not limited to personal property, by virtue of the filing of its UCC-1 financing statement on February 20, 1986, and its underlying security documents which adequately described Travelers’ security interest in the hotel receipts. Further, the UCC-1 financing statement which Travelers filed did not lapse by failure to file a UCC-3 continuation statement within the five years from February 20, 1986. Travelers’ security interest did not lapse because the relative rights of the parties to the hotel receipts became fixed March 8, 1989, the date Travelers commenced this foreclosure action. See Avant Petroleum, Inc. v. Banque Paribas (1988), 853 F.2d 140.

The Avant case involved an interpleader action. The Federal Court of Appeals in Avant held that it was not necessary to file a continuation statement during the pendency of the lawsuit because rights of the parties had become fixed once the action had been commenced. The court wrote:

“To allow the subsequent lapse of its perfections, due to its failure to file continuation statements, to divest Paribas of its superior interest in the funds would be to penalize it for the delay in collection that was forced on it by the initiation of a court proceeding. This would create the bizarre result that the very act of setting up the ‘trust’ in order to protect and reserve property for the benefit of its rightful owner would be the indirect cause of that rightful owner losing its rights to the property. Such an outcome is not only inequitable, but it is also inconsistent with the notion that the funds are held by the Court pending determination of the rightful owner at the time of the interpleader.” Avant, 853 F.2d at 145.

The cogent rationale of Avant is alive and applies to this mortgage foreclosure case.

For all of the foregoing reasons, we affirm the judgment of the circuit court.

Affirmed.

MURRAY and McNULTY, JJ., concur.


author: JUSTICE MURRAY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LUIS d'AVIS, Defendant-Appellant.
    First District (5th Division)
    No. 1 — 92—3176
    Opinion filed August 6, 1993.
    Rehearing denied September 9, 1993.

      Matthew F. Kennedy, of Cotsirilos, Stephenson, Tighe & Streicker, Ltd., of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Kenneth McCurry, and Michael Golden, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE MURRAY

delivered the opinion of the court:

After a bench trial defendant, Dr. Luis d’Avis (d’Avis) was found guilty of the misdemeanor, battery (Ill. Rev. Stat. 1991, ch. 38, par. 12 — 3(a)(2)), and sentenced to one year’s probation. He now appeals his conviction and sentence.

Because the facts of this case are not in dispute and repulsive to recount, we give only a brief accounting here.

At trial the State presented a single witness, Luis Lopez, the complainant. Lopez testified that he made an initial appointment with d’Avis, a licensed medical doctor certified as a family practitioner, for a general physical examination. On November 13, 1991, in the course of the examination, d’Avis asked Lopez if he wanted to be checked for hemorrhoids. Lopez consented and d’Avis performed a rectal exam on Lopez. However, at some point during this exam, d’Avis asked Lopez if he was “enjoying it.” Lopez then turned around and discovered that, while performing the exam, d’Avis was also masturbating.

d’Avis testified in his own defense, admitting that he had performed a rectal exam on Lopez. However, not only did d’Avis deny that he had masturbated during the exam, he accused Lopez of masturbating during the examination, claiming also that Lopez had stated that he was enjoying the exam and “wanted more.”

After considering all of the evidence, the trial court found d’Avis guilty of battery and sentenced him to one year’s probation. Now, on appeal, d’Avis raises four arguments for reversal, each one completely without merit.

First, it is d’Avis’ position that, even if it were true that he had acted in the manner in which he was accused, we must reverse his conviction because the behavior fell outside the purview of the battery statute. Specifically, d’Avis contends that to be found guilty of committing a battery it must be shown that he intentionally and knowingly made physical contact of an insulting or provoking nature with an individual. (Ill. Rev. Stat. 1991, ch. 38, par. 12 — 3(a)(2).) He then contends that his act of masturbation while performing a rectal exam on Lopez did hot meet this definition because Lopez testified that he was not embarrassed by the rectal exam, itself, but by the fact that d’Avis was masturbating in his presence while performing the rectal exam. Consequently d’Avis claims that his physical contact with Lopez, i.e., the rectal exam, was not insulting or provoking and that he should not have been found guilty of battery.

This argument is absurd. Although d’Avis would have this court believe so, the touching associated with the rectal exam did not occur in isolation from the act of masturbation and, therefore, the one act should not be partitioned or segregated from the other. We believe that the State is correct in its assertion that a particular physical contact may be deemed insulting or provoking based upon the factual context in which it occurs. In other words, what may be an innocent touching in one instance may be interpreted quite differently in a different set of circumstances.

In this case d’Avis ceased performing a legitimate medical examination once he exceeded the bounds of Lopez’s consent by exploiting the situation for sexual pleasure. Thus, it was perfectly reasonable for the trial court to have found that the otherwise noninsulting medical procedure performed on Lopez became an insulting and provoking contact once Lopez realized that d’Avis was using the rectal examination as a vehicle to bring about his own sexual gratification.

Case law supports interpretation of the battery statute to encompass this situation. In People v. Dunker (1991), 217 Ill. App. 3d 410, 577 N.E.2d 499, defendant was found guilty of battery based upon his conduct with his son’s teacher. The teacher testified that defendant became angry and poked his finger in her chest several times while she attempted to speak with him regarding his son’s scholastic progress. Defendant argued on appeal that the victim had not been insulted or provoked by the contact with defendant’s finger. However, the reviewing court found that the witness’ testimony that she left the area crying, shocked by defendant’s behavior, was sufficient evidence from which the jury could have found that the contact was insulting or provoking.

Similarly, in People v. Wilkinson (1990), 194 Ill. App. 3d 660, 551 N.E.2d 327, the court found that, by placing his hand inside the victim’s blouse and pants, the defendant’s conduct was insulting, despite the fact that the victim did not testify that she was insulted or provoked by the touching.

The next argument raised by d’Avis is that he was denied due process because the battery statute was unconstitutionally vague as applied to him, failing to put him on notice that conduct of this nature was proscribed. Although d’Avis cites to case law which, undisputedly, stands for the general propositions of law relied upon, he is unable to cite to any case law (nor do we believe it is possible to find any such case law) which supports the notion that it is beyond the ken of a reasonable medical professional to know that behavior of the sort alleged here would be prohibited.

We shudder to think that any medical professional could fail to recognize the legal, as well as moral, duty he or she has to refrain from exploiting the vulnerabilities of patients and the need to treat patients with dignity and respect. Therefore, no authority is required to dispose of d’Avis’ claim that the battery statute was unconstitutionally vague as applied to him in this case.

As d’Avis notes, the battery statute seeks to regulate unconsented physical contact. There is no question in this court’s mind that, although Lopez initially consented to having a medical examination by a medical professional, d’Avis, by his behavior, transformed the medical procedure into sexual contact, to which Lopez did not knowingly consent. Although d’Avis seeks to isolate the act of performing the rectal exam from the masturbation, these two acts occurred simultaneously and must be considered together when determining whether the crime of battery occurred.

Next, d’Avis contends that there was insufficient evidence presented at trial to constitute proof beyond a reasonable doubt. While conceding that the uncorroborated testimony of a single witness may be sufficient to establish guilt beyond a reasonable doubt (People v. Stengel (1991), 211 Ill. App. 3d 337, 570 N.E.2d 391), d’Avis seeks to discredit Lopez’s testimony by claiming that it was “fraught with inconsistencies.” Specifically, d’Avis contends that there were three major discrepancies or inconsistencies in Lopez’s testimony: (1) that Lopez was confused as to which hand d’Avis used for the rectal exam and which hand he used to masturbate; (2) that Lopez testified that the rectal examination lasted for three minutes, although he never told police how long the examination lasted; and (3) that at trial Lopez testified that d’Avis used one or two fingers for the rectal exam, although he told police that it felt like d’Avis stuck his whole fist in his anus.

We find that these so-called inconsistencies are so minor and immaterial that they do not detract from Lopez’s unswerving testimony that d’Avis masturbated while performing a rectal examination on Lopez. This testimony was clear and convincing and supported the finding of guilt.

Furthermore, d’Avis is merely questioning Lopez’s credibility, which was for the trier of fact to determine. We do not find Lopez’s testimony to be so improbable or incredible that no trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (See People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267.) Consequently, we find no basis for reversing the finding of the lower court.

Lastly, d’Avis claims that the trial judge’s comment that “there had been no evidence given to this court that would leave [sic, lead?] me to believe that the allegations made by Mr. Lopez are untrue” indicates that the burden of proof was shifted to him, requiring him to prove his innocence by producing evidence to show that Lopez was lying. We disagree.

This was a bench trial. The trial judge is presumed to know the proper standards and to have applied them. Consequently, more weighty evidence would have to be presented to show that the trier of fact was misled as to the burden of proof to overcome this presumption.

Furthermore, it is within the unique province of the trier of fact to assess credibility and weight to be given a witness’ testimony. (People v. Eyler (1989), 133 Ill. 2d 173, 191, 549 N.E.2d 268.) We believe that the trial judge’s comment evidences nothing more than the court’s exercise of its discretion in assessing the credibility of the witnesses before it. The fact that in this case the trial judge found Lopez more credible than d’Avis does not lead this court to the conclusion that an error has been made.

Additionally, we take notice of the fact that the trial judge, when considering this same issue in d’Avis’ motion for new trial, denied that it was in any way misled as to the standard that was to be applied and that his comment should not be interpreted as a shifting of the burden of proof.

For all the reasons stated above, we affirm the judgment of the lower court and uphold defendant’s conviction and sentence.

Affirmed.

GORDON, P.J., and McNULTY, J., concur.