text:
    RTS PLUMBING COMPANY, INC., Plaintiff, v. LOUIS DeFAZIO et al., Defendants and Counterdefendants and Third-Party Defendants (Puritan Finance Corporation, Plaintiff-Intervenor; Summit First Federal Savings and Loan Association, Counterplaintiff and Third-Party Plaintiff-Appellee; Stephen J. Sharley et al., Proposed Intervenors-Appellants).
    First District (3rd Division)
    No. 1—87—3761
    Opinion filed March 15, 1989.

      Arthur Sternberg, of Pedersen & Houpt, P.C., of Chicago, for appellants.
    Ronald J. Broida and Laura L. Shimkus, both of Goldstine & Broida, Ltd., of Summit, for appellee.
   JUSTICE WHITE

delivered the opinion of the court:

Appellants, Stephen J. Sharley, Diane Perrier, Tadeusz and Lucyna Hejna, Damen Savings and Loan, and United Savings of America; appeal from an order of the circuit court denying their petition to intervene in a foreclosure action brought by the Summit First Federal Savings and Loan Association (Summit). Appellants argue that they were entitled to intervene as a matter of right and that the trial court erred in finding that a notice of lis pendens recorded by Summit barred them from intervening in the action.

The action was initiated in September 1984 when RTS Plumbing Co., Inc. (RTS), filed a complaint for foreclosure of a mechanic’s lien against Summit, Louis and David DeFazio, the Bank of Lyons (Lyons), the Bridgeview Bank and Trust, and the Midland Savings and Loan Association. RTS alleged that pursuant to a written contract with Louis DeFazio, it had furnished services in connection with certain real property located in Bridgeview, Illinois, that defendants failed to pay for the services rendered, and that a mechanic’s lien had been recorded against the property. RTS’ complaint requested that defendants be ordered to pay the amount owed or, in the alternative, that the property be sold to satisfy RTS’ lien.

On May 20, 1985, Summit filed a counterclaim and third-party complaint to foreclose against the DeFazios, Lyons, RTS, and others. Summit alleged that it held a mortgage on the Bridgeview property and that the mortgage was in default in the amount of $78,390.64. Summit asserts that it also filed a notice of Us pendens on May 20, 1985.

Lyons failed to appear in the foreclosure action and default orders were entered against it on October 1, 1985, and November 25, 1985. On December 30, 1985, Lyons transferred a portion of the Bridgeview property to Sharley and Perrier. Another portion of the property was transferred from Lyons to Tadeusz and Lucyna Hejna on July 24, 1986. Damen Savings and Loan and United Savings of America financed the purchases and executed mortgages on the transferred properties.

On June 16, 1987, appellants filed a petition to intervene in Summit’s foreclosure action. Appellants also filed a proposed answer and affirmative defense in which they requested that any judgment entered for Summit be satisfied by the sale of the vacant, unimproved portion of the Bridgeview property. Summit opposed intervention on the ground that Lyons, appellants’ predecessors in interest, had been defaulted nearly two years previously and, therefore, the petition was untimely. Following a hearing, the trial court denied appellants’ petition to intervene.

Appellants contend that the trial court’s decision to deny intervention was based on the court’s belief that Summit’s recording of a Us pendens notice barred intervention as a matter of law. Appellants argue that although the recording of a Us pendens notice serves to bind subsequent purchasers to any final judgment entered in the litigation in their absence, it does not prevent a subsequent purchaser from intervening in the action prior to final judgment. Therefore, appellants argue that the trial court’s decision should be reversed and they should be allowed to intervene in Summit’s foreclosure action. We agree with appellants’ contention that the filing of a Us pendens notice does not bar intervention as a matter of law.

The Illinois Us pendens statute (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1901) provides that in an action seeking equitable relief affecting or involving real property, the filing of a notice in the office of the recorder of deeds in the county where the real estate is located, signed by a party to the action and setting forth the title of the action, the parties thereto, the court where the action was brought, and a description of the real estate shall be constructive notice to every person subsequently acquiring an interest in the property. The statute further provides that every person whose interest is not shown of record at the time the notice is filed shall be deemed a subsequent purchaser and shall be bound by the proceeding as if he or she were a party thereto. Summit concedes that there is nothing in the language of the statute that bars intervention by a subsequent purchaser as a matter of law. However, it points out that a subsequent purchaser who takes subject to a notice of lis pendens need not be made a party to the pending action (Norris v. Ile (1894), 152 Ill. 190, 38 N.E. 762; Stavros v. Karkomi (1976), 39 Ill. App. 3d 113, 349 N.E.2d 599), and argues that to allow intervention would defeat the purpose of the Us pendens doctrine. We disagree.

The purpose of the doctrine of Us pendens is the avoidance of endless litigation of property rights precipitated by the transfer of interests in the property after litigation has begun. (Admiral Builders Corp. v. Robert Hall Village (1981), 101 Ill. App. 3d 132, 427 N.E.2d 1032.) This purpose is achieved by conclusively binding the party receiving the interest to the result of the litigation as though he or she had been a party from the outset. (Norris v. Ile (1894), 152 Ill. 190, 38 N.E. 762; Admiral Builders Corp. v. Robert Hall Village (1981), 101 Ill. App. 3d 132, 427 N.E .2d 1032.) Allowing intervention does not impair a court’s power to bind conclusively a subsequent purchaser, and because a court has the power to enter orders assuring that an intervenor will not interfere with or unduly delay the litigation (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 408(f)), it cannot be said that as a matter of law allowing a subsequent purchaser to intervene will defeat the purpose of lis pendens.

In an 1889 decision, the United States Supreme Court set forth the rule that purchasers of property involved in a pending suit may be admitted as parties in the discretion of the court. (See Mellen v. Moline Malleable Iron Works (1889), 131 U.S. 352, 33 L. Ed. 178, 9 S. Ct. 781.) Summit concedes that the question of whether to allow purchasers pendente lite to intervene in a pending action is addressed to the discretion of the trial court. However, it argues that in the present case, the trial court properly exercised its discretion in denying appellants’ petition to intervene. Again we disagree.

Our review of the transcript of the hearing on appellants’ petition to intervene leads us to conclude that, in denying the petition, the trial court acted under the mistaken belief that the filing of the lis pendens notice required it to deny intervention as a matter of law. A court commits error when it fails to exercise its discretion due to a belief that it has no discretion to exercise. (Avery v. Garbutt (1974), 19 Ill. App. 3d 1001, 313 N.E .2d 274.) Thus, the trial court erred when it ruled that Summit’s filing of the lis pendens notice barred appellants from intervening in the action.

Although we find that the trial court erred in holding that appellants were barred from intervening, we believe that the court’s order denying intervention was proper. Our decision is based on appellants’ failure to establish that their petition to intervene was timely filed and on their assertion before this court that they should be allowed to assert unknown and unspecified defenses to Summit’s foreclosure action.

Intervention may be permissive or as a matter of right. A party is allowed to intervene as of right when a statute confers the unconditional right to intervene, when a party who will be bound by an order or judgment in the action will not be adequately represented by existing parties, or when a party will be adversely affected by the disposition of property subject to the control of the court. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 408(a).) Permissive intervention is addressed to the discretion of the court, which may allow intervention when a statute confers a conditional right to intervene or when an applicant’s claim and the main action concern a common question of law or fact. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 408(b).) In the case of both permissive intervention and intervention as of right, the application to intervene must be made in a timely manner. In re Application of County Treasurer (1983), 113 Ill. App. 3d 655, 447 N.E.2d 553; Moran v. Commonwealth Edison Co. (1979), 74 Ill. App. 3d 964, 393 N.E.2d 1269.

Appellants argue that their petition to intervene was timely because it was filed before trial began on Summit’s foreclosure action. That is not the only issue to be considered in determining timeliness.

Generally, the determination of the timeliness of a petition to intervene is left to the discretion of the trial court. (Moran v. Commonwealth Edison Co. (1979), 74 Ill. App. 3d 964, 393 N.E.2d 1269; Childress v. State Farm Mutual Automobile Insurance Co. (1968), 97 Ill. App. 2d 112, 239 N.E.2d 492.) Factors considered in making this determination include when the intervenors became aware of the litigation (In re Application of County Treasurer (1983), 113 Ill. App. 3d 655, 447 N.E.2d 553; Schwechter v. Schwechter (1985), 138 Ill. App. 3d 602, 486 N.E.2d 340) and the amount of time that elapsed between the initiation of the action and the filing of the petition to intervene (Moran v. Commonwealth Edison Co. (1979), 74 Ill. App. 3d 964, 393 N.E.2d 1269). Another factor considered in determining timeliness is the reason for the party’s failure to seek intervention at an earlier date. Moore v. McDaniel (1977), 48 Ill. App. 3d 152, 362 N.E.2d 382.

In the present case, appellants, who acquired their interests in December 1985 and July 1986, filed their petition to intervene in June 1987. This was more than two years after Summit’s foreclosure action was initiated. Appellants’ petition made no mention of when they first became aware of the litigation involving their property and provided no explanation whatsoever for their failure to seek intervention at an earlier date. These omissions make it impossible to determine whether appellants acted diligently or whether their application to intervene was made in a timely manner. We believe that appellants’ failure to supply information establishing that they made a timely effort to intervene provides a sufficient basis for upholding the trial court’s denial of appellants’ petition to intervene. See Moore v. McDaniel (1977), 48 Ill. App. 3d 152, 362 N.E.2d 382.

We are aware that in Moore, the petition to intervene was made after final judgment had been entered in the action, while in the case before us trial on Summit’s foreclosure action had not begun when appellants’ petition was filed. Nevertheless, we believe that the rationale behind the appellate court’s decision in Moore is applicable. The rules of intervention require that an application to intervene be made in a timely manner. Therefore, a decision denying intervention should be upheld where a party fails to supply the information necessary to make a determination of the timeliness of its petition.

In addition, we believe that allowing intervention in the present case would serve only to interfere with and hinder the progress of the litigation.

Appellants have argued that they should be allowed to intervene to address the issue of how to shape relief, should Summit prevail in its foreclosure action. However, nothing in appellants’ pleadings and arguments in the trial or before this court indicate that they sought intervention on this limited basis. In oral arguments before this court, appellants’ attorney stated:

“[T]here is one thing that I do want to point out on the defenses, it’s not that we’ve conceded before the trial court that there are no defenses [to Summit’s foreclosure action] and that we only want to be heard on relief, it may be that during the course of the proceedings we discover ***. I can’t point to the court [sic] any defenses that we have, but we may find later on ***. If a defense comes up we should be allowed to raise it.”

The record shows the default orders against Lyons, appellants’ predecessor in interest, were entered on October 1, and November 25, 1985, while appellants’ petition to intervene was not filed until June 15, 1987, nearly two years later. In spite of this delay, appellants now request that they be allowed to intervene so that they may inject any unknown defenses that “come up” or are “discovered” in the future. We find that appellants’ request is improper as well as untimely.

An intervener must take the suit as he finds it, and where intervention will result in the injection of new and complicated issues, it may be denied. (Home Insurance Co. v. Lorelei Restaurant Co. (1980), 83 Ill. App. 3d 1083, 404 N.E.2d 895; Chicago, Milwaukee, St. Paul & Pacific R.R. Co. v. Harris Trust & Savings Bank (1978), 63 Ill. App. 3d 1012, 380 N.E.2d 835.) Although the trial court in the present case denied intervention on other grounds, the only issue before this court is the correctness of the order appealed from. (In re Application of County Collector (1979), 71 Ill. App. 3d 161, 389 N.E.2d 193.) Thus, we find that here, where appellants have indicated their intention to raise unknown and unspecified issues in an action that has been pending for more than two years, it was not error to deny the petition to intervene.

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

Affirmed.

McNAMARA and RIZZI, JJ., concur.


source: Caselaw Access Project

author: JUSTICE McNAMARA

license: Public Domain

text:
    JAMES R. SWEENEY, Plaintiff-Appellant, v. SENGSTACKE ENTERPRISES, INC., et al., Defendants-Appellees.
    First District (3rd Division)
    No. 1—88—1839
    Opinion filed March 15, 1989.

      John G. Phillips & Associates, of Chicago (John F. Klebba, of counsel), for appellant.
    Parrillo, Weiss & Moss, of Chicago (Michael J. O’Halloran and Keely Truax, of counsel), for appellees.
   JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiff, James R. Sweeney, sued defendants Sengstacke Enterprises, Inc., d/b/a Chicago Defender, and Chinta Strausberg, among others, for defamation, invasion of privacy and intentional infliction of emotional distress. The trial court dismissed all three counts as to these defendants pursuant to section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 615). Plaintiff appeals only from the dismissal of the defamation count. Defendants Curtis Jones and his son Rodney Jones are not parties to this appeal.

On January 21, 1987, the Chicago Defender published an article which read, in pertinent part:

“OPS probes student charge policeman threatened mayor
by Chinta Strausberg
The Office of Professional Standards (OPS) is investigating charges with a white officer, who arrested the 16-year-old son of a Black City Hall policeman, allegedly threatened] the life of Mayor Harold Washington.
* * *
In an interview with the Chicago Defender, City Hall officer Curtis Jones, 48, who ironically is the cousin of the slain Emmett Till, then 14, who was killed August 22, 1955 in Money, Miss., by whites, has filed a formal complaint against a white colleague.
* * *
‘[My son] was horsing around outside of the restaurant in the park area,’ Jones said. ‘Sweeney told them he was under arrest and handcuffed my son. He put both of them in the car and while enroute to the 25th District, Area 5, the white officers made racial statements using (former mayoral candidate Bernard) Epton jokes.
‘They told Black and white jokes,’ continued Jones. ‘One of them made a statement saying “We forgave Jane Byrne” then asked my son who was he for. When my son said Washington, Sweeney and his partner said: “If he (Washington) gets in, we’re going to kill him. I got a friend with a helicopter, and we got a rifle with a scope and we are going to pick him off. We got grenades, too.” ’
An officer for 21 years, Jones said T try to keep that hostility out of my life.’ Jones said he was sleeping in the bed next to Till when the white men ‘dragged him out of the house that Saturday night. I was 17 years old then and a Crane student,’ he recalled.
* * *
‘It was wrong what they did to my son,’ Jones told the Chicago Defender. ‘They taught him to hate, and I don’t like that. I always taught him not to hate anyone because of skin color,’ said Jones who has over 180 honorable life-saving commendations involving Black and white citizens.”

Plaintiff’s complaint alleges that the statements were false and that the article suggested plaintiff was engaged in criminal activity and was unfit to be a police officer. The trial court dismissed the action under the innocent construction rule.

We are confronted with only the most preliminary and threshold question of whether the complaint is legally sufficient to entitle plaintiff to proceed on the merits of his claim. The facts alleged in the complaint should be interpreted in a light most favorable to plaintiff, and the complaint should not be dismissed unless the pleading discloses that no set of facts could be proved that would entitle plaintiff to relief. Davis v. Keystone Printing Service, Inc. (1982), 111 Ill. App. 3d 427, 444 N.E.2d 253.

A statement is libelous per se if it imputes to plaintiff the commission of a crime, if it imputes the inability to perform or want of integrity in the discharge of the duties of office or employment, or if it prejudices him in his profession or trade. (Owens v. CBS, Inc. (1988), 173 Ill. App. 3d 977, 527 N.E.2d 1296; Makis v. Area Publications Corp. (1979), 77 Ill. App. 3d 452, 395 N.E.2d 1185.) Thus, an allegation that a statement falsely accuses a person of committing a crime is sufficient to support a defamation action. Cartwright v. Garrison (1983), 113 Ill. App. 3d 536, 447 N.E.2d 446.

In Owens v. CBS, Inc., the court upheld a judgment for plaintiff where defendant published a false charge that plaintiff had sent a letter to the White House threatening the life of the President. The court found the accusations were of criminal conduct and obviously meant to be taken literally. “No reasonable person would have viewed them as mere ‘rhetorical hyperbole’ or as having been intended simply in a ‘loose, figurative sense.’ ” Owens v. CBS, Inc., 173 Ill. App. 3d at 992, 527 N.E.2d at 531, quoting Catalano v. Pechous (1980), 83 Ill. 2d 146, 162-63, 419 N.E.2d 350, 358.

Similarly, the statements here clearly charge that plaintiff committed criminal acts in conspiring to kill a man. Defendants maintain, however, that the application of the innocent construction rule to the statements in question would require a finding that they are not actionable as a matter of law.

Before a court may judge statements to be defamatory as a matter of law, they must be considered in light of the innocent construction rule. (Owen v. Carr (1986), 113 Ill. 2d 273, 497 N.E.2d 1145.) Under the innocent construction rule, words allegedly libelous which are capable of being read innocently must be so read and declared non-actionable as a matter of law. (Chapski v. Copley Press (1982), 92 Ill. 2d 344, 442 N.E.2d 195; John v. Tribune Co. (1962), 24 Ill. 2d 437, 181 N.E.2d 105.) The meaning of a statement must be gathered not only from the words singled out as libelous but also from the context in which they are used. (Chapski v. Copley Press, 92 Ill. 2d 344, 442 N.E.2d 195.) Whether the innocent construction rule requires dismissal is initially a question of law. Chapski v. Copley Press, 92 Ill. 2d 344, 442 N.E.2d 195; Cartwright v. Garrison, 113 Ill. App. 3d 536, 447 N.E.2d 446.

Defendants assert that the comments were merely “racial jokes about Chicago mayors and mayoral candidates.” They characterize the statements as “tasteless jokes.” There is, however, no innocent interpretation possible for the following published statement:

“If he (Washington) gets in, we’re going to kill him. I got a friend with a helicopter,, and we got a rifle with a scope and we are going to pick him off. We got grenades too.”

The statement accused plaintiff of criminal conduct and was meant to be taken literally. The statement that plaintiff had already obtained access to a helicopter, rifles with a scope to “pick off” the mayor, and grenades, is far from a “tasteless racial joke.” The terms used were quite precise, adding to the credibility of the statement, and cannot be taken as something other than a suggestion that plaintiff had engaged in criminal activity. Moreover, such accusations could impute the inability of a police officer to perform or want of integrity in the discharge of his duties as a police officer and prejudice him in his profession. (See Coursey v. Greater Niles Township Publishing Corp. (1968), 40 Ill. 2d 257, 239 N.E.2d 837; Weber v. Woods (1975), 31 Ill. App. 3d 122, 334 N.E.2d 857.) An innocent reading is not plausible here, and a finding to the contrary would require a forced and strained interpretation of the published article, which the law does not permit. Owens v. CBS, Inc., 173 Ill. App. 3d 977, 527 N.E.2d 1296; Coursey v. Greater Niles Township Publishing Corp., 40 Ill. 2d 257, 239 N.E.2d 837.

We are unpersuaded by defendants’ attempt to distinguish Owens on the basis that a Federal statute makes any type of threat on the President’s life a crime, while “mere voicing of a threat to take the life of the mayor of Chicago” is not a criminal offense under a statute or ordinance. For words imputing the commission of a crime to be libelous per se, the offense need only be indictable, involve moral turpitude, and be punishable by either imprisonment or death rather than by fine. (Newell v. Field Enterprises, Inc. (1980), 91 Ill. App. 3d 735, 415 N.E.2d 434.) Obviously, conspiracy to murder falls within this definition.

Defendants argue that, “[e]ven if it could be considered defamatory when read alone and out of context (which Appellees deny), the remainder of the article gives it a different, innocent meaning.” The entire focus of the article is the threat by a police officer on the life of the mayor. The headline announces “policeman threatened mayor.” The first sentence reports the police department’s investigation of charges that an officer arresting the son of another officer made threats, on the mayor’s life. While the article is sprinkled with information about racial tension, the gist of the article in the Chicago newspaper is the threat by a Chicago police officer on the life of a Chicago mayor as told by the son of a second officer. The article refers to the 1955 murder of Jones’ cousin and Jones’ attempt to raise his children “not to hate anyone because of skin color.” This background information, however, plays no more important a role than references in the article to the arrested teenager’s acting as manager of a girls’ basketball team, or his father’s attempt to teach his children not to use drugs.

Finally, we must examine whether the complaint sufficiently alleges actual malice. A police officer is a public official (Reed v. Northwestern Publishing Co. (1988), 124 Ill. 2d 495, 530 N.E.2d 474), and thus plaintiff must prove the statements made about his official conduct were made with actual malice, i.e., with knowledge that the statements were false or with reckless disregard for whether or not the statements were false. (New York Times Co. v. Sullivan (1964), 376 U.S. 254, 279-80, 11 L. Ed. 2d 686, 706-07, 84 S. Ct. 710, 725-26; Reed v. Northwestern Publishing Co., 124 Ill. 2d 495, 530 N.E.2d 474; Coursey v. Greater Niles Township Publishing Corp., 40 Ill. 2d 257, 239 N.E.2d 837.) The complaint must set forth factual allegations from which actual malice may reasonably be said to exist as opposed to the bare assertion of actual malice. (Coursey v. Greater Niles Township Publishing Corp., 40 Ill. 2d 257, 239 N.E.2d 837; Weber v. Woods, 31 Ill. App. 3d 122, 334 N.E.2d 857.) This is true even where the statements are libelous per se, since a public official can still be defamed per se. Colson v. Stieg (1980), 86 Ill. App. 3d 993, 408 N.E.2d 431, aff’d (1982), 89 Ill. 2d 205, 433 N.E.2d 246.

Allegations that the statements made were false, were made with knowledge of their falsity, or were made in reckless disregard as to their truth or falsity have been held to sufficiently allege actual malice. See Colson v. Stieg, 86 Ill. App. 3d 993, 408 N.E.2d 431 (complaint sufficiently alleges statement was made by defendant “knowing it to be false” and statement was made maliciously, wilfully and intentionally); Coursey v. Greater Niles Township Publishing Corp., 40 Ill. 2d 257, 239 N.E.2d 837 (complaint sufficiently charges that defendants intended to injure the plaintiff police officer’s name and injure his livelihood, with knowledge statement was false and with reckless disregard for falsity, they maliciously composed and published libelous article about officer’s solicitation of girl); Weber v. Woods, 31 Ill. App. 3d 122, 334 N.E.2d 857 (complaint sufficiently alleges that defendant, knowing plaintiff was a police officer in good standing, maliciously intended to injure plaintiff and bring him into public scandal, disrepute and disgrace, by falsely and maliciously publishing statements concerning plaintiff which were false, scandalous, maliciously and defamatory); see also Davis v. Keystone Printing Service, Inc., 111 Ill. App. 3d 427, 444 N.E.2d 253.

The complaint in the present case alleges that defendants published statements falsely ascribing to plaintiff conduct and characteristics making him unfit for the proper conduct of his lawful business, trade or profession as a Chicago police officer and that defendants imputed to plaintiff conduct constituting a criminal offense, i.e., conspiracy to kill the mayor of Chicago. The complaint alleges further that defendants knew the statements were false or entertained serious doubts as to their truth, and in reckless disregard for their truth published the false, defamatory, malicious and scandalous statements.

We hold that the article, on its face, gives rise to factual inferences tending to support a charge of actual malice. (See Coursey v. Greater Niles Township Publishing Corp., 40 Ill. 2d 257, 239 N.E.2d 837.) These allegations, taken together with other factual allegations in the complaint and with the fact that the statements are slanderous per se and therefore words from which malice is presumed, are sufficient to charge actual malice. See Colson v. Stieg, 86 Ill. App. 3d 993, 408 N.E.2d 431, citing Coursey v. Greater Niles Township Publishing Corp., 40 Ill. 2d 257, 239 N.E.2d 837.

We conclude that count one of the complaint was legally sufficient. The trial court erred in dismissing the defamation count of this action.

For the above reasons, the judgment of the circuit court of Cook County dismissing count one is reversed and the cause is remanded for further proceedings consistent with the holdings contained herein.

Reversed and remanded.

FREEMAN, P.J., and WHITE, J., concur.


author: PRESIDING JUSTICE FREEMAN

text:
    MARY L. LICCIARDI, Plaintiff-Appellee and Cross-Appellant, v. HAROLD E. COLLINS et al., Defendants-Appellants and Cross-Appellees.
    First District (3rd Division)
    No. 1—88—2197
    Opinion filed March 15, 1989.

      Bernard B. Rinella, Leslie L. Veon, and Walter J. Moneo, all of Rinella & Rinella, Ltd., of Chicago, for appellants.
    Donald A. Hitzel, Jr., of Pretzel & Stouffer, Chartered, and Bradley B. Falkof, of Griffin & Fadden, Ltd., both of Chicago, for appellee.
   PRESIDING JUSTICE FREEMAN

delivered the opinion of the court:

On February 24, 1987, plaintiff, Mary Licciardi, filed a five-count amended complaint to recover $842,890 paid attorney Harold E. Collins and his law firm, Harold E. Collins & Associates (hereinafter collectively defendant), pursuant to a contingent fee contract for his services in litigation against plaintiff’s former husband, Gerard Licciardi (Licciardi). On June 23, 1987, Judge Thomas J. O’Brien denied defendant’s motion to dismiss the amended complaint. On February 24, 1988, Judge O’Brien granted plaintiff’s motion for summary judgment on count I of her amended complaint; denied defendant’s motion for same; and granted plaintiff’s motion for summary judgment on count I of defendant’s counterclaim. On July 12, 1988, Judge Thomas Rakowski denied plaintiff’s and defendant’s cross-motions for summary judgment on count III of the amended complaint; granted plaintiff’s motion for summary judgment on counts IV and V, brought against defendants Mary Collins and Michael Collins, respectively, as transferees of portions of the fee paid defendant; and granted plaintiff’s motion for summary judgment on count II of defendant’s counterclaim.

Defendant appeals all of the orders in favor of plaintiff and/or adverse to him. Plaintiff cross-appeals the denial of her motion for summary judgment on count III of the amended complaint and the denial of prejudgment interest at the rate of 6.74% compounded daily.

Plaintiff’s amended complaint alleged the following. Plaintiff and Licciardi were divorced on January 29, 1979, in the circuit court of Cook County. The judgment of dissolution incorporated by reference a separation agreement which provided for, inter alia, maintenance in gross to plaintiff. At the time of the divorce, Licciardi was president and chief operating officer of Anadite, Inc., a California corporation (Anadite). During the negotiations concerning the separation agreement, Licciardi asked plaintiff to keep his interests in Anadite out of the divorce proceedings to avoid jeopardizing his position and interests in the company. In return, Lieciardi agreed to give plaintiff 50% of his interests in Anadite. Contemporaneously with entry of the judgment on January 29, 1979, Lieciardi delivered a letter agreement to plaintiff confirming their oral agreement. In October 1979, Lieciardi: (1) agreed with Anadite to dispose of his interests therein and to use the proceeds to establish Gel Industries, Inc.; (2) entered a second letter agreement with plaintiff whereby she forbore from enforcing the first letter agreement and allowed Lieciardi to retain the proceeds from his interests in Anadite in exchange for a 40% interest in Gel Industries. In July 1986, plaintiff consulted defendant concerning the letter agreements and the divorce after learning that Lieciardi was contemplating the sale of Gel Industries. In August 1986, plaintiff entered a contract with defendant for his legal services which provided defendant with a contingency fee of 25% and $250 per hour (the contingent fee contract). Later that month, defendant filed a “Post-Decree Petition to Modify and Enforce Judgment for Dissolution of Marriage and Supplemental Agreements” in case No. 78 — D—10315, plaintiff’s divorce action, in the domestic relations division of the circuit court of Cook County. On October 10, 1986, an “Agreed Order for Modification of Judgment for Dissolution of Marriage and Specific Performance of Agreement” was entered by that court. In December 1986, plaintiff paid defendant the hourly fee, totalling $42,800 and a contingent fee of $800,000 pursuant to the contingent fee contract.

Count I of the amended complaint alleged that the contingent fee contract violated Supreme Court Rule 2 — 106(c)(4), which prohibits such agreements in respect of, inter alia, the procuring of a property settlement in or arising out of a dissolution of marriage. (107 Ill. 2d R. 2 — 106(c)(4).) Count II alleged that the fee paid defendant was so excessive as to be unconscionable. Count III alleged that defendant had a conflict of interest as a result of his representation of plaintiff and his prior representation of Lieciardi in the divorce action. Count IV alleged that defendant transferred $700,000 of the fee paid by plaintiff to his wife, Marilyn Collins. Count V alleged that defendant paid his son, Michael Collins, $75,000 out of the fee paid by plaintiff. Each count sought, inter alia, an order rescinding the contract for legal services and fee agreement.

Opinion

On appeal, defendant contends that the trial court erred in denying the motion to dismiss count I of the amended complaint.

Plaintiff originally filed this action in the chancery division of the circuit court. It was thereafter transferred to the domestic relations division of the circuit court. At a subsequent hearing before the presiding judge of that division, plaintiff stipulated that this case was unrelated to her prior divorce action. Based on that stipulation, the judge found that there were no matters in the instant cause “ancillary to the underlying divorce matter, 78 D 10315, and that the issue is entirely apart from said case” and retransferred the cause to the chancery division of the circuit court. Defendant now asserts that plaintiff’s stipulation and the judge’s findings estopped her from prosecuting count I of her amended complaint.

We cannot agree. Neither plaintiff’s stipulation nor the trial court findings based thereon precluded her from challenging the validity of the contingent fee contract with defendant. That stipulation and those findings were both made for the limited purpose of deciding the division of the circuit court in which this case would be most appropriately heard. They were not made for the purpose of defining or limiting the issues which plaintiff could assert in this cause. Only if they were made for that purpose would defendant’s cited cases, bearing on the binding effect of stipulations (see, e.g., City of Chicago v. Drexel (1892), 141 Ill. 89, 30 N.E. 774; In re Estate of Moss (1969), 109 Ill. App. 2d 185, 248 N.E.2d 513), require that the stipulation and findings based thereon be given the effect which defendant seeks. The stipulation and the findings based thereon were binding upon plaintiff only in the sense that she could not thereafter seek a retransfer of the cause to the domestic relations division of the circuit court. They did not estop plaintiff from alleging that defendant had entered into a contingent fee contract with her in violation of Supreme Court Rule 2 — 106(c)(4).

In granting plaintiff’s motion for summary judgment on count I of her amended complaint, the trial court held that defendant’s representation of plaintiff “was tantamount to procuring a [post-decree] modification of a property settlement agreement and therefore made in respect to procuring a property settlement that arose out of a dissolution of marriage.” The trial court therefore held the parties’ contingent fee contract unenforceable under Rule 2 — 106(c)(4).

Defendant contends that this holding was error because, as a matter of law, a property settlement in a dissolution proceeding is not modifiable after a final judgment has been entered therein under section 510(a) of the Illinois Marriage and Dissolution of Marriage Act (the Act) (Ill. Rev. Stat. 1987, ch. 40, par. 510). Section 510(a), defendant asserts, divests a court of jurisdiction after rendition of a final judgment and passage of the two-year period in which to seek a vacation or modification under section 2 — 1401 of the Civil Practice Law (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1401). He thus argues that the action pursued on plaintiff’s behalf was not one to procure a property settlement in a dissolution proceeding but, rather, one to obtain the enforcement of plaintiff’s letter agreements with her husband, which were separate from their property settlement.

In response, plaintiff asserts that, notwithstanding section 510(a), the domestic relations court had subject matter jurisdiction over the parties and the cause to modify the judgment of dissolution under the doctrine of revestment. In support, plaintiff cites In re Marriage of Demond (1986), 142 Ill. App. 3d 134, 491 N.E.2d 501, and In re Marriage ofSavas (1985), 139 Ill. App. 3d 68, 486 N.E.2d 1318.

Contrary to plaintiff’s assertion and the application of the doctrine of revestment in Demond and Savas, the doctrine does not apply in dissolution proceedings where the 30-day and two-year periods in which to seek a modification or vacation of the judgment under sections 2 — 1301(e) and 2 — 1401 of the Civil Practice Law (Ill. Rev. Stat. 1987, ch. 110, pars. 2 — 1301(e), 2 — 1401), respectively, have expired. See Meyer v. Meyer (1951), 409 Ill. 316, 319, 99 N.E.2d 137; Kelly v. Kelly (1982), 105 Ill. App. 3d 136, 434 N.E.2d 55; Bratkovich v. Bratkovich (1962), 34 Ill. App. 2d 122, 180 N.E.2d 716.

Notwithstanding this conclusion, however, we reject defendant’s analysis. The question whether an attorney has entered into a contingent fee contract in an area of law in which such an agreement is prohibited cannot turn on whether the court in which he pursued an action for the client had subject matter jurisdiction over the cause as denominated by the attorney or as treated by the court. That fact is irrelevant to the determination of the illegality of a contingent fee contract pursuant to which an attorney obtains relief for a client.

Rather, we believe that the nature of the services which the attorney provides to the client is dispositive. As the trial court found, the nature of the services which defendant provided plaintiff is revealed, in the first instance, in defendant’s July 25, 1986, letter to plaintiff. Defendant asserts that the letter merely set forth various legal theories for enforcement of the letter agreements between plaintiff and Licciardi. Even accepting defendant’s characterization of the letter, the letter nonetheless reveals that defendant’s representation of plaintiff was in the nature of representation to procure a property settlement in a dissolution proceeding.

In the letter, defendant noted that plaintiff’s separation agreement with Licciardi provided that she expressly waived and relinquished all of her rights in any and all of his property and that it contained the whole and entire agreement between them. He further noted that the judgment dissolving plaintiff’s marriage incorporated the separation agreement by reference and deprived plaintiff of all of her legal rights with regard to Licciardi’s income and property except as expressly set forth in the separation agreement. Defendant then informed plaintiff that they had a serious legal problem because of the terms of the separation agreement and judgment of dissolution. Defendant noted that while section 502(d) of the Act allowed parties to decide whether to incorporate their separation agreements into a dissolution judgment, it did require that the agreement so provide. Defendant further noted that section 502(d) of the Act also required that the judgment identify the agreement and that the trial court approve its terms. Defendant stated that neither the judgment of dissolution nor the separation agreement contained any reference to the first letter agreement, that the judgment did not identify the letter agreement, and that the judgment failed to indicate the trial court’s approval of its terms. Further, defendant stated that there was a fair chance of “petitioning the Divorce Court to modify its Judgment for Dissolution of Marriage to incorporate the January 29, 1979 letter agreement.” Defendant gave as a basis for his opinion the facts, inter alia, that section 502 of the Act permitted such an agreement, and that, since the letter agreement dealt only with property and maintenance, it would have been binding on the trial court in any event as it was not unconscionable.

Defendant then informed plaintiff that there was a strong probability that the October 15, 1979, letter agreement could be enforced. Defendant cited Semmens v. Semmens (1979), 77 Ill. App. 3d 936, 396 N.E.2d 1282, for the proposition that, without court approval, parties could modify a property settlement agreement incorporated into a divorce decree and that such modification is enforceable. Defendant also stated that, even if the first letter agreement was unenforceable, plaintiff could have filed a section 2 — 1401 petition asserting that she had been defrauded by Licciardi’s and her lawyer’s exclusion of the letter agreement from the judgment of dissolution and their failure to inform her of its resultant unenforceability. Defendant informed plaintiff that when she entered the second letter agreement she had a legal right to file proceedings to set aside the judgment of dissolution and to modify the separation agreement so as to include the first letter agreement. Finally, defendant informed plaintiff that the “Divorce Court” had retained jurisdiction for the purpose of enforcing its judgment of dissolution and that he believed they were compelled to go to that court with their lawsuit.

The nature of defendant’s representation of plaintiff is further revealed by the written contract into which she entered with defendant. The contract stated that plaintiff retained defendant to represent her in her claim for damages from Licciardi on account of “marital property settlement contracts” entered into in January and October 1979.

We also note, like the trial court, that defendant filed in the domestic relations court a “Post-Decree Petition to Modify and Enforce Judgment of Dissolution of Marriage and Supplemental Agreements” and obtained an “Agreed Order for Modification of Judgment [of] Dissolution of Marriage and Specific Performance of Agreement” on plaintiff’s behalf.

Defendant asserts that the trial court erred in relying on the labels placed on the petition pursued and the relief obtained on plaintiff’s behalf. Defendant argues that the trial court ignored the law to the effect that the domestic relations court was without subject matter jurisdiction to modify the separation agreement between plaintiff and her former husband and that such jurisdiction cannot be conferred by the parties. Defendant also argues that the trial court erred in finding that the factual result of his representation of plaintiff was a modification of the property provisions of the judgment of dissolution. He maintains that the factual result of his services was an order declaring the enforceability of the private letter agreements of the parties. He concludes that, although this order purported to modify the judgment of dissolution, no modification, in fact, occurred.

As previously noted, the legality of the contingency fee contracted for by defendant cannot be made to turn on the subject matter jurisdiction of the court in which he represented plaintiff. In this regard, the label which defendant placed on the action pursued for plaintiff and which defendant and Licciardi’s counsel placed on the agreed order entered pursuant thereto bely his assertion that he merely sought and obtained enforcement of the letter agreements between plaintiff and Licciardi. Having both sought and obtained a modification of the judgment of dissolution, it ill-behooves defendant to now assert that, as a matter of law, he could not seek and the trial court could not grant that relief.

The case of Jamal v. Jamal (1968), 98 Ill. App. 2d 180, 240 N.E.2d 246, which defendant claims reveals the procedure he followed in representing plaintiff, is not on point.

In Jamal, four years after the parties’ divorce, the plaintiff petitioned for enforcement of the property settlement provisions of the divorce decree through recognition and enforcement of a supplemental agreement entered into thereafter. Under the property settlement incorporated into the divorce decree, in consideration for half the proceeds from the sale of certain parcels of real estate, plaintiff waived her other property rights. The petition alleged that: (1) the parcels had not been sold because defendant allowed their encumbrance by income tax liens; (2) the parties had entered a second agreement in full settlement of defendant’s obligations under the divorce decree; (3) that agreement provided that defendant was to remove the liens from certain parcels and convey them to plaintiff; and (4) all the parcels were lost through foreclosure. The petition prayed that plaintiff be put in the financial position she would have enjoyed had defendant honored the divorce decree and the supplemental agreement based thereon.

The appellate court first found that the trial court was without jurisdiction to modify the divorce decree to include the terms of the parties’ second agreement. Considering only the portion of the prayer for relief seeking enforcement of the supplemental agreement, the court then found that the petition made out a prima facie case of defendant’s breach of the second agreement and that plaintiff was seeking relief from the damages caused by that breach. The court also held that plaintiff’s having filed the petition in the divorce division under the post-decretal enforcement procedure warranted only transfer to the proper division, not dismissal. Jamal, 98 Ill. App. 2d at 187-89.

We find Jamal distinguishable from this case. The petition in Jamal, as considered by the appellate court, merely sought to enforce an agreement which the parties entered after they were divorced. Here, in contrast, the petition filed by defendant on plaintiff’s behalf sought to enforce an agreement entered before plaintiff and Licciardi were divorced, as well as one entered after their divorce. Putting aside the question whether the domestic relations court, in fact, had the power to enforce either agreement by modifying the judgment of dissolution, defendant’s belief that the court had such power is conclusively established by the fact that the petition explicitly seeks such relief. Moreover, the petition is clearly premised on the theory that a modification of the judgment of dissolution was necessary for enforcement of the letter agreements.

The petition alleged, inter alia that: (1) plaintiff consented to the judgment of dissolution and settlement agreement entered by the court in reliance on the first private letter agreement with Licciardi; (2) the agreement was fair, equitable, not unconscionable, nor tainted with any fraud or illegal purpose; (3) the court would have been bound to approve the terms of the letter agreement and make it part of the judgment of dissolution and the settlement agreement had it been disclosed to the court; (4) the second letter agreement was fair, equitable, not unconscionable and would have been enforced by the court if brought to its attention; and (5) since the divorce, plaintiff had been forced to live on the meager property settlement provided in the judgment of dissolution. The petition then prayed that the court enter an order: (1) finding the letter agreements not unconscionable and enforceable; (2) modifying the judgment of dissolution and the settlement agreement to incorporate by reference the letter agreements; and (3) enforcing the judgment of dissolution “as modified” by requiring Licciardi to comply with the terms of the second letter agreement.

When considered as a whole, the petition filed by defendant in the domestic relations court did not merely seek to invoke the general jurisdiction of the court, to enforce the letter agreements between plaintiff and Licciardi, as the petition in Jamal was held to have done. Rather, the petition sought to invoke the subject matter jurisdiction which the court had over the parties and the judgment of dissolution it had previously entered. In this regard, we note the allegations in the petition that the letter agreements were not unconscionable and would have been binding upon the court had they been brought to its attention. These allegations were obviously included in the petition to satisfy section 502(b) of the Act, providing that the terms of a separation agreement are binding upon the court unless found unconscionable. (Ill. Rev. Stat. 1979, ch. 40, par. 502(b).) Had defendant merely been seeking enforcement of the letter agreements as contracts separate from and independent of the separation agreement, there would have been no need to allege that they were not unconscionable.

Defendant next asserts that, assuming arguendo that he did obtain a modification of the judgment of dissolution for plaintiff, his representation fell within the exception in Rule 2 — 106(c)(4) allowing contingency fees in matters subsequent to a final judgment of dissolution. Because it was not undertaken until seven years after entry of the judgment dissolving plaintiff’s marriage and because it involved the enforcement of existing contracts rights, rather than the procurement of a property settlement, defendant maintains, the trial court erred in applying the rule to his representation of plaintiff.

Defendant’s concession that he obtained a modification of the judgment of dissolution precludes the inconsistent argument that his representation did not involve the procurement of a property settlement.

The gist of the post-decree petition was that the first property settlement was a nullity because of the failure to include therein Lic-ciardi’s property rights in Anadite, which were also marital property. Similarly, the gist of the judgment modification obtained pursuant thereto was to correct the judgment to award to plaintiff the fruits of what had been plaintiff’s and Licciardi’s marital property by enforcing the letter agreements between them. In this regard, we note that, in the first letter agreement, Licciardi stated that it was supplemental to the separation agreement dated January 29, 1979. More importantly, it was only by first obtaining enforcement of plaintiff’s marital property rights under the first letter agreement that defendant could obtain enforcement of her rights to the fruits of that property under the second letter agreement. We thus agree with the trial court that defendant’s representation of plaintiff was, indeed, tantamount to procuring a property settlement in a dissolution proceeding and thus within the bar of Rule 2 — 106(cX4).

Defendant next asserts that, in finding that rule applicable here, the trial court misapprehended the public policy underlying it. Defendant asserts that that public policy is to prevent the encouragement of divorce and the hindrance of reconciliation which could result if attorneys were given financial interests in property settlements. (In re Fisher (1958), 15 Ill. 2d 139, 153 N.E.2d 832.) That public policy is inapplicable here because plaintiff and Licciardi had been divorced for seven years and he had remarried. He further argues that it was also inapplicable because the judgment of dissolution and property settlement did not result from bifurcated proceedings, to which courts of other States have found the rule applicable. See, e.g., Meyers v. Handlon (Ind. App. 1985), 479 N.E.2d 106.

We agree with defendant that the prohibition of contingent fee contracts in bifurcated dissolution proceedings does not apply here. We therefore reject plaintiff’s attempt to analogize this case to cases involving such proceedings. Nonetheless, we do agree with plaintiff that the public policy behind Rule 2 — 106(c)(4) is best served by prohibiting attorneys from acquiring contingent financial interests in all domestic relations cases involving the division of marital property between either spouses or former spouses. That is, we believe the public policy behind the rule so important that, as long as an attorney’s services are employed with respect to the division of marital property, the rule bars contingent fees therefor whether or not a judgment of dissolution has or has not been entered when the attorney is retained.

Defendant next contends that, contrary to the trial court’s ruling on his motion to dismiss, count II of the amended complaint failed to state a cause of action for rescission of the contingent fee contract as unconscionable. We have found that the trial court correctly entered summary judgment for plaintiff on count I of her amended complaint, which sought essentially the same relief as count II. Therefore, even assuming that count II does not state a cause of action, we find that fact of no avail to defendant.

Next, each party contends that the trial court erred in denying their respective motions for summary judgment on count III of the amended complaint, which alleged a conflict of interest in defendant’s representation of plaintiff subsequent to his representation of her former husband.

As we have affirmed the summary judgment for plaintiff on count I of her amended complaint, we believe that reversal of the denial of either party’s motion for summary judgment on count III would have no effect on defendant’s liability to plaintiff. Having brought one complaint against defendant, plaintiff would be entitled to only one judgment against him regardless of the number of counts on which she prevailed. Moreover, even if she were entitled to more than one judgment against defendant, she could only have one satisfaction against him, inasmuch as she sought basically the same relief against defendant in all counts of her complaint. We therefore find no need to determine whether the trial court’s rulings on count III were correct.

Defendant next contends that the trial court erred in granting plaintiff’s motion for summary judgment on count II of defendant’s counterclaim, which asserted a claim for quantum meruit. Defendant asserts that the trial court erred in holding that an attorney who enters into an unethical contingent fee contract is barred from a quantum meruit recovery on the basis of Leoris v. Dicks (1986), 150 Ill. App. 3d 350, 501 N.E.2d 901.

Leoris barred a quantum meruit recovery by an attorney who entered into a fee-splitting arrangement with another attorney in violation of the public policy against fee-splitting subsequently codified in Supreme Court Rule 107(a) (107 Ill. 2d R. 107(a)). Rather than establishing a per se rule against a quantum meruit recovery by an attorney for any ethical violation, defendant reads Leoris as barring an attorney’s quantum meruit recovery only in fee-splitting cases where his fee is not based on his services to the client. In support of his construction of Leoris, defendant cites several cases from foreign jurisdictions.

We reject defendant’s narrow reading of Leoris. We believe that, correctly construed, Leoris amply supports the denial of a quantum meruit recovery to defendant in this case. In rejecting the argument that the plaintiff was entitled to a quantum meruit recovery even if his fee-splitting agreement with another lawyer violated public policy, the Leoris court stated:

“Where enforcement of an illegal contract is sought, the courts will aid neither party but will leave them where they have placed themselves since the parties are pari delicto and can recover nothing under the contract. [Citation.] Therefore, we find that plaintiff is foreclosed from recovery on the theory of quantum meruit because unprofessional conduct, as exhibited here, clearly violated stated canons of ethics that bar recovery. [Citation.] Accordingly, we find that plaintiff’s conduct, which clearly violated established canons of ethics, warrants forfeiture of his attorney fees.” (Emphasis added.) Leoris, 150 Ill. App. 3d at 354.

We believe that defendant places unwarranted emphasis on the first italicized passage from Leoris to argue that it is not applicable here while ignoring the second italicized passage. While the first passage deals with the violation of the prohibition against fee-splitting, the second passage is as applicable here as it was in Leoris. That is, defendant violated an established canon of ethics as surely as the plaintiff in Leoris. Therefore, the fact that they violated different canons is irrelevant. Acceptance of defendant’s argument would place more importance on the disciplinary rule violated in Leoris than that violated here. This we will not do. Nor do we find Talley v. Alton Box Board Co. (1962), 37 Ill. App. 2d 137, 185 N.E.2d 349, which recognizes that unethical conduct may be a complete bar to any recovery in some cases, of any avail to defendant. This is one such case.

Finally, while other jurisdictions allow an attorney such as defendant a quantum meruit recovery (see, e.g., Guenard v. Burke (1982), 387 Mass. 802, 443 N.E.2d 892; Wiley v. Silsbee (1934), 1 Cal. App. 2d 520, 36 P.2d 854), it suffices to say that that is not the rule in Illinois.

In view of our affirmance of the summary judgment for plaintiff on count I of the amended complaint, we need not address defendant’s next contention, viz., that the award to plaintiff of prejudgment interest was error because the parties’ contingent fee contract was legal. We likewise need not address his contention that the trial court erred for the same reason in imposing a constructive trust on monies paid by defendant to his wife and son.

Lastly, plaintiff contends that she was entitled to prejudgment interest at the rate of 6.74% compounded daily rather than at the rate of 5%, provided in the Interest Act (Ill. Rev. Stat. 1987, ch. 17, par. 6401 et seq.), which the trial court awarded.

In a chancery proceeding, the allowance of interest is governed by equitable considerations and lies within the sound discretion of the trial court. The trial court’s decision will not be disturbed absent an abuse of that discretion. Finley v. Finley (1980), 81 Ill. 2d 317, 332, 410 N.E.2d 12.

We agree with plaintiff that the trial court based its award of prejudgment interest on equitable considerations rather than the Interest Act. We therefore accept plaintiff’s assertion that the trial court could have awarded a higher interest rate than the 5% provided in the Interest Act. (See First Arlington National Bank v. Stathis (1983), 115 Ill. App. 3d 403, 450 N.E.2d 833.) However, we believe that the trial court abused its discretion in awarding prejudgment interest at the rate of 5% only if it concluded that it was bound by the Interest Act. The fact that the trial court awarded prejudgment interest “in accordance with” the Interest Act does not compel that conclusion. On the record before us, it may be that the trial court believed that prejudgment interest at the rate of 5% “in accordance with” the Interest Act was an equitable rate of interest in this case. From the record, we cannot say that the trial court abused its discretion in so doing, notwithstanding the evidence which plaintiff adduced to support the higher interest rate claimed.

For all of the foregoing reasons, we affirm: (1) the denial of defendant’s motion to dismiss the amended complaint; (2) the summary judgment for plaintiff on count I of her amended complaint; (3) the summary judgment for plaintiff on counts IV and V of her amended complaint; (4) the summary judgment for plaintiff on count II of defendant’s counterclaim; and (5) the award of prejudgment interest at the rate of 5% per annum.

Affirmed.

McNAMARA and WHITE, JJ., concur.


author: JUSTICE RIZZI

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CLEAVON KIDD, Defendant-Appellant.
    First District (3rd Division)
    No. 1—85—1313
    Opinion filed March 15, 1989.
    Rehearing denied April 17, 1989.

      Debra R. Salinger, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Thomas V. Gainer, Jr., Lynda A. Peters, and Carol L. Gaines, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE RIZZI

delivered the opinion of the court:

Defendant, Cleavon Kidd, was convicted of murder and armed violence and sentenced to 25 years in the Illinois Department of Corrections. On appeal, defendant contends that (1) the State’s identification evidence was not sufficient to prove him guilty beyond a reasonable doubt; (2) the trial court erred in denying defendant’s motion to quash arrest and suppress evidence; (3) the trial court erred in admitting evidence of an out-of-court identification of defendant; (4) the State’s destruction of evidence precluded defendant from exercising his sixth amendment right to confrontation and his right to establish a defense; (5) the trial court improperly considered defendant’s prior arrests in imposing a 25-year sentence; (6) the trial court abused its discretion in sentencing defendant to 25 years in prison; and (7) the trial court improperly entered judgment on two counts of murder since only one person was killed. We affirm in part and reverse in part.

On October 15, 1983, at approximately 8:30 p.m., Linda Hutcher-son was walking eastbound on 16th Street in Chicago. As Hutcherson walked, she observed Darryl Tapes talking with an unidentified woman near a cleaning store. Hutcherson continued walking eastbound and passed the victim, Lionel Jones, as he walked westbound. Hutcherson then walked diagonally across a vacant lot.

After Hutcherson was approximately one-third of the way into the lot, she heard a gunshot, turned and saw two men running. Hutcher-son began to run and looked over her shoulder as she proceeded. Hutch-erson heard another gunshot, and when she looked back she saw a man, later identified as Lionel Jones, fall to the ground. Hutcherson then observed defendant standing with a gun in his hand. There were streetlights on both 16th Street and in the alley. Hutcherson watched defendant and observed his profile as he ran towards 16th and Homan and southbound down the alley. Hutcherson then returned to the vacant lot and waited until the police arrived.

At trial, Hutcherson testified that she identified defendant in a lineup on May 30, 1984. She stated that she was pretty sure that defendant was the person she saw shoot the victim. Hutcherson testified that she had observed the defendant in the community prior to the date of the shooting. She also stated that she had known the victim, Lionel Jones, for 15 years and Darryl Tapes for a few years. Hut-cherson further stated that the person she saw holding the gun in the vacant lot on the night that Lionel Jones was killed was not Darryl Tapes.

Darryl Tapes also testified on behalf of the State. Tapes testified that he had known Lionel Jones for eight years prior to his death. He also stated that he was friends with defendant for six-years. On the day of the shooting, Tapes was with defendant and Jones in the vicinity of 16th Street and Homan. The three men were sitting on a porch when defendant and Jones got into an argument and began fighting. The fight was prompted by an argument concerning money defendant owed Jones for drugs Jones purchased for defendant. Jones and defendant exchanged words, and Jones kicked defendant. The three men then went their separate ways. Tapes and Jones met later that evening in the vicinity of 16th Street and Christiana. They went to the Holly Restaurant and had dinner until approximately 8 p.m. After leaving the restaurant, Tapes and Jones took the bus and returned to 16th Street and Homan. As Tapes and Jones crossed the street, they heard a gunshot. They were near the alley next to the vacant lot when Tapes heard the first shot. Tapes looked back and saw defendant standing approximately 40 or 50 feet away with his arm extended and his fingers curled around what looked like a gun.

Tapes further testified that after hearing the first shot and seeing defendant, he and Jones began to run. As Tapes continued to run eastbound on 16th Street, he heard another shot, looked back and observed Jones on the ground in the vacant lot. Tapes then ran to a nearby house to inform Jones’ girlfriend that he had been shot. Tapes returned to the vacant lot and later went to the hospital where Jones had been transported. At the hospital, Jones’ girlfriend accused Tapes of the shooting and the police handcuffed him and took him to the police station. Tapes stated that while at the police station, officers took scrapings from his hands.

Finally, Tapes testified that he had prior convictions for aggravated battery and misdemeanor theft. He further stated that he had two auto theft cases pending. Tapes stated that his testimony in the present matter was in exchange for the State’s recommendation of a two-year minimum sentence in his pending cases.

Chicago police officer Terrence Thedford testified that on October 15, 1983, he was assigned to investigate the shooting death of Lionel Jones. Thedford took Tapes into custody at the hospital after the victim’s girlfriend implicated him in the shooting. Thedford stated that although gunshot residue samples were taken from Tapes’ hands, he was never arrested or charged in the shooting. Thedford testified that Tapes informed him that defendant was the person who shot Jones. Based on the information provided by Tapes, Thedford went to defendant’s home on October 16, 1983, but was unable to locate him.

Thedford then had a stop order placed on defendant so that he would be brought in for questioning if he was arrested on any other matter. Thedford failed to secure a warrant for defendant’s arrest because Tapes would not cooperate and provide the necessary interview required by the State’s Attorney’s office. Thedford testified that he received a phone call from an attorney who indicated that the defendant would surrender himself voluntarily on October 24, 1983. Defendant did not surrender on that date. However, Thedford ultimately arrested defendant on May 30, 1984. Defendant was placed in a lineup and identified by Linda Hutcherson as the person who shot Lionel Jones.

The prosecution and defense stipulated that the gunshot residue test done on Darryl Tapes was sent to the crime lab and kept in inventory until May 24, 1984. They further stipulated that the sample was confiscated and destroyed before it was ever tested or analyzed.

Prior to trial, defendant made a motion to quash arrest and suppress evidence. The court heard the motion simultaneously with the trial. At the close of the State’s case, defendant made a motion for a directed finding. The motion was denied. Defendant chose not to present any evidence. Following closing arguments, the trial court denied defendant’s motion to quash arrest and suppress evidence. Defendant was found guilty of two counts of murder and one count of armed violence.

After defendant’s post-trial motion was denied, a sentencing hearing was conducted. Following the introduction of evidence in aggravation and mitigation, defendant was sentenced to serve 25 years in the Illinois Department of Corrections. This appeal followed.

Defendant first argues that the State’s identification evidence was insufficient to prove him guilty beyond a reasonable doubt. Defendant asserts that the testimony of Hutcherson was not reliable because she had an inadequate opportunity to view the offender. He further argues that the testimony of Tapes was tainted because he was a suspect in the shooting, a convicted felon, and was given leniency on other matters in exchange for his testimony. We disagree.

The positive identification of an accused by a single eyewitness may be sufficient to sustain a conviction. (People v. Dean (1987), 156 Ill. App. 3d 344, 351, 509 N.E.2d 618, 622.) An identification is considered positive, and thus reliable, where (1) the witness had a sufficient opportunity to view the offender, (2) showed an adequate degree of attention to the characteristics of the assailant, (3) described the perpetrator with a reasonable degree of accuracy, (4) displayed a sufficient amount of certainty in identifying the offender, and (5) identified the accused within a reasonable period of time following the crime. 156 Ill. App. 3d at 351, 509 N.E.2d at 622.

Here, two eyewitnesses, Hutcherson and Tapes, identified the defendant as the person who shot the victim. Hutcherson observed the defendant from a distance of 30 feet, as he chased the victim with a gun through the vacant lot. She observed defendant’s profile as he ran down the alley and noted that he was wearing a hat. There were streetlights in the alley and along 16th Street. Hutcherson also recognized the defendant as a member of the community. Seven months after the shooting, Hutcherson identified the defendant in a lineup and told the police that she was “pretty sure” defendant was the person she saw shoot the victim on October 15, 1983. Furthermore, Tapes knew both defendant and the victim and spent time with them the day of the shooting. Although Tapes was a suspect in the shooting, he was never arrested or charged. Tapes admitted that he was a convicted felon and that he received a plea offer on unrelated cases in exchange for his testimony in the present case. However, the court took Tapes’ background into consideration in evaluating his testimony. The court noted:

“Mr. Tapes has a background of activity. Take that into account here, but he tells a credible story as to the problems they had over the juice and beans, I guess as we call it now, cough syrup. And as I notice there, the deceased had codeine in his body at the time so that kind of backs up Mr. Tapes’ assertion that the dissertation between Kidd and Jones arose over the syrup as they were drinking. And I think he told a credible story. He was right at the scene there. He knew who was there.”

It is clear from the evidence adduced at trial that the witnesses’ identification of the defendant was not so doubtful, vague, or uncertain that his conviction should be reversed on appeal. Further, the function of a court in a bench trial is to determine the credibility of witnesses and the weight that should be given their testimony. (People v. Manion (1977), 67 Ill. 2d 564, 577-78, 367 N.E.2d 1313, 1320.) A reviewing court should not substitute its judgment for that of the trier of fact unless the evidence is so improbable as to raise a reasonable doubt of guilt. (People v. Molstad (1984), 101 Ill. 2d 128, 133, 461 N.E.2d 398, 401.) Therefore, we conclude that the identification evidence provided by the State was sufficient to sustain defendant’s conviction.

Defendant next argues that the trial court erred in denying his motion to quash arrest and suppress evidence. It is defendant’s position that because his warrantless arrest was based solely on the unreliable statement of Darryl Tapes, no probable cause existed. Defendant further asserts that because Tapes was from the criminal milieu, had never given information to the police before, and gave information which totally exculpated him from the murder charges, probable cause was not established. Thus, defendant concludes that the arrest should be quashed and the subsequent lineup identification suppressed. We disagree.

The trial court’s finding of probable cause will not be disturbed on review unless manifestly erroneous. (People v. Jones (1983), 119 Ill. App. 3d 615, 623, 456 N.E.2d 926, 931.) Probable cause to arrest exists where facts and circumstances known to the arresting officer would lead a reasonable and prudent man to believe that a crime has been committed and the person arrested committed the crime. (People v. Tisler (1984), 103 Ill. 2d 226, 237, 469 N.E.2d 147, 153.) The requirement of prior reliability or independent corroboration which must be shown when the arresting officer acts upon information from police informers does not apply to information supplied by citizen-informers. (People v. Hester (1968), 39 Ill. 2d 489, 514, 237 N.E.2d 466, 481.) Where a witness has never given information to the officer in the past, and is clearly not a professional or police informant, he is presumed to be a citizen-informant. (People v. Beto (1980), 86 Ill. App. 3d 622, 628, 408 N.E.2d 293, 298.) Further, a witness’ prior arrest record alone does not make him a member of the criminal milieu. People v. Fisher (1979), 76 Ill. App. 3d 331, 334, 395 N.E.2d 54, 56.

The evidence adduced at trial revealed that the facts known to the officer when defendant was arrested were that (1) Tapes was an eyewitness to the shooting, (2) Tapes was personally acquainted with both Jones and defendant, and (3) Tapes was present when defendant and the victim had an altercation concerning money and drugs on the day of the shooting. Although these facts alone were not necessarily sufficient evidence to convict, they did provide Thedford with sufficient probable cause to arrest defendant. The fact that Tapes had a criminal arrest record did not preclude him from acting as a citizen-informant in this matter. Tkpes was merely questioned and never arrested or charged. Moreover, there is no evidence that Tapes was a professional police informant. Under the circumstances, we conclude that he was merely a citizen-informant and that the arresting officer was not required to establish Tapes’ prior reliability before acting on the information which he provided.

For the reasons that we have stated, we do not believe that the trial court’s finding that there was probable cause to arrest defendant was manifestly erroneous. Therefore, we conclude that the trial court did not err in denying defendant’s motion to quash arrest and suppress evidence.

Defendant next argues that the trial court erred in allowing the admission of an out-of-court lineup identification. It is his position that the admission was erroneous because it was not supported by an independent in-court identification. Defendant maintains that the identification evidence was used as a substitute for a positive in-court identification. Because defendant’s assertions are based on an improper interpretation of relevant law, we disagree.

The court in People v. Rogers (1980), 81 Ill. 2d 571, 579, 411 N.E.2d 223, 227, held that an “out-of-court identification *** should be admissible but should be used only in corroboration of in-court identifications and not as substantive evidence.” Subsequently, the legislature, by Public Act 83 — 367, added section 115 — 12 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1985, ch. 38, par. 115— 12). Section 115 — 12 allows the admissibility of out-of-court identifications as substantive evidence. (People v. Davis (1985), 137 Ill. App. 3d 769, 484 N.E.2d 1098.) It is applicable where a witness testifies at the trial or hearing, is subject to cross-examination concerning the statement, and the statement is one of identification of a person made after perceiving the offender.

In the present case, Hutcherson gave a statement regarding her identification of defendant made after perceiving him. She also testified at the trial and was subject to cross-examination. Thus, the statutory requirements governing the admission of her out-of-court identification as substantive evidence were fulfilled. (Ill. Rev. Stat. 1985, ch. 38, par. 115 — 12.) An independent basis for an in-court identification is required only where the pretrial identification has been found to be unduly suggestive. (People v. Williams (1987), 118 Ill. 2d 407, 412-14, 515 N.E.2d 1230, 1233.) Although an independent basis for the in-court identification exists, the State is not required to demonstrate one where the pretrial identification is not found to be unduly suggestive. In the present case, because the lineup procedure was not found to be unduly suggestive, the testimony regarding the out-of-court identification was properly allowed. Therefore, we conclude that the trial court did not err in admitting evidence of Hutcherson’s prior identification of defendant.

Defendant next argues that he was precluded from exercising his sixth amendment right to confrontation and his constitutional right to establish a defense where the State destroyed evidence from the gunshot residue test performed on Darryl Tapes. Defendant asserts that he was prejudiced because this evidence was potentially exculpatory. We disagree.

Determination of whether a defendant’s sixth amendment right to confrontation has been violated depends upon whether defendant has been deprived of the right to test the truth of his accuser’s direct testimony. (People v. Dixon (1982), 105 Ill. App. 3d 340, 347, 434 N.E.2d 369, 375.) In preparation for trial, a criminal defendant has a right to have access to evidence that is material either to guilt or punishment. (Brady v. Maryland (1963), 373 U.S. 83, 87, 10 L. Ed. 2d 215, 218, 83 S. Ct. 1194, 1196.) Where evidence is destroyed, a due process violation occurs if the evidence possessed an exculpatory value that was apparent before the destruction and was of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means. (California v. Trombetta (1984), 467 U.S. 479, 81 L. Ed. 2d 413, 104 S. Ct. 2528.) Only when both these factors are present will a due process violation be found. People v. Sleboda (1988), 166 Ill. App. 3d 42, 53, 519 N.E.2d 512, 519.

In the present case, defendant cross-examined Tapes extensively regarding the gunshot residue testing, the events surrounding the murder, Tapes’ criminal background and Tapes’ relationship to the victim and defendant. Defendant was also afforded the opportunity to provide testimony from other sources regarding the identity of the shooter. Moreover, defendant concedes that his assertion that the test would exculpate him is merely speculative. Based upon these facts, we conclude that the evidence did not possess an exculpatory value that was apparent before it was destroyed and that defendant was able to obtain comparable evidence by other means. Accordingly, we conclude that the State’s failure to preserve the gunshot residue test did not infringe on defendant’s sixth amendment right of confrontation or his constitutional right to establish a defense.

Next, defendant argues that his 25-year sentence for the offense of murder is excessive and the trial court improperly considered prior arrests during the sentencing hearing. It is his position that this error warrants a new sentencing hearing.

Although a reviewing court has the power to reduce an excessive sentence (107 Ill. 2d R. 615(b)(4)), a sentence set by the trial court will not be disturbed absent an abuse of discretion. (People v. La Pointe (1981), 88 Ill. 2d 482, 492, 431 N.E.2d 344, 348.) The trial court is normally in the best position to determine an appropriate sentence and its decision regarding sentencing is entitled to great deference and weight. (People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.) Moreover, where improper evidence is presented, such as the introduction of an arrest or a charge, it is presumed that the trial court disregarded that which was improper, and considered only proper evidence in imposing sentence. (People v. Garza (1984), 125 Ill. App. 3d 182, 186, 465 N.E.2d 595, 598-99.) In order to obtain a new sentencing hearing, it is not sufficient to show merely that the trial court mentioned the arrest during the hearing, rather the record must affirmatively disclose that the arrest or charge was considered by the trial court in imposing sentence. People v. Shumate (1981), 94 Ill. App. 3d 478, 488, 419 N.E.2d 36, 44.

In the instant case, defendant was sentenced after the court heard evidence in aggravation and mitigation. In aggravation, the State argued that because of defendant’s criminal history, and the nature of the offense, a significant sentence was warranted. In mitigation, defendant argued that he had no felony convictions, was disabled and society would not benefit by the imposition of a sentence in excess of the minimum.

After consideration of defendant’s age, criminal background and the nature of the crime, the court felt that a sentence in excess of the minimum was justified. In fact, prior to sentencing defendant, the court had the following colloquy with defense counsel:

“THE COURT: When I reviewed the facts in the case and I look over Mr. Kidd’s background here, he certainly has been a burden on our police and judicial system, starting in 1969. That is sixteen years ago ***. I have what we call a rap sheet here consisting of four pages, 44 entries on it.
MR. LEVIN: A lot of those are arrests.
THE COURT: I agree with that, but it is 44. Based on that, his background and based on the nature of this matter here, I think this deserves a little more than the minimum. So, accordingly, I am sentencing him to serve 25 years in the Illinois Department of Corrections ***.”

Based on our reading of the record, we do not find that the trial court abused its discretion or improperly considered mere arrests in sentencing defendant. The court’s response to defense counsel’s comment regarding arrests indicates that it was aware that prior arrests could not be properly considered in imposing sentence. In addition, the 25-year sentence imposed is within the statutory range of 20 to 40 years. (Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 8—1(a)(1)(a).) We therefore find that the trial court did not improperly consider mere arrests or abuse its discretion in sentencing defendant.

Finally, defendant argues that he was improperly convicted and sentenced on two counts of murder when only one person was killed. The State concedes that it is improper to enter judgment on two counts of murder where only one person was killed. However, the State asserts that under People v. Mack (1984), 105 Ill. 2d 103, 137, 473 N.E.2d 880, 898, the sentence must be imposed on the most serious offense. We agree. Accordingly, we vacate defendant’s conviction for murder under section 9 — 1(a)(2) of the Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, par. 9 — 1(a)(2)), and affirm defendant’s conviction and sentence for murder under section 9 — 1(a)(1) (Ill. Rev. Stat. 1985, ch. 38, par. 9-l(a)(l)).

Affirmed in part; reversed in part.

FREEMAN, P.J., and WHITE, J., concur.