author: JUSTICE TULLY

text:
    NATIONAL WRECKING COMPANY, Plaintiff and Counterdefendant-Appellee, v. MIDWEST TERMINAL CORPORATION, Defendant and Counterclaimant-Appellant (Raymond Harkrider et al., Appellants).
    First District (3rd Division)
    Nos. 1—87—1899, 1—88—2587, 1—88—3600, 1—89—0279 cons.
    Opinion filed September 9, 1992.

      Paul J. Bargiel, P.C., of Chicago, for appellants.
    Schwartz & Freeman, of Chicago (Susan A. Berkowitz and Aaron E. Hoffman, of counsel), for appellee.
   JUSTICE TULLY

delivered the opinion of the court:

Appellants Midwest Terminal Corporation (Midwest) and its attorneys Raymond Harkrider and Stephen Sadin appeal from orders of the circuit court granting a motion to disqualify Harkrider from representing Midwest, denying Midwest’s motion to disqualify plaintiff’s counsel, entering judgment for plaintiff on its complaint, and awarding attorney fees to plaintiff.

This action arose in connection with work performed by plaintiff, National Wrecking Company, on property owned by Midwest. The property was located on a lot bordered by West 21st Street on the north, Canalport Avenue on the south and Morgan and Sangamon Streets on the west and east. Midwest owned the northern portion of the lot, which was approximately 62,000 square feet in size. The southern border of Midwest’s property was irregular, commencing on Sangamon Street approximately 37 feet south of 21st Street and running diagonally in a southwesterly direction on a line parallel with Canalport Avenue to a point approximately 115 feet to the north of Canalport Avenue on Morgan Street.

The southern portion of the lot was owned by the Chicago Sanitary Rag Company (the Rag Company). Three to four feet to the north of the line dividing the property was a low concrete bumper called a retaining wall. This wall ran parallel to the dividing line and was designed to prevent trucks present on Midwest’s property from bumping into the Rag Company building, which was located two to five feet to the south of the dividing line.

Midwest acquired the property in 1954 and used it as a cartage terminal until 1983. Sometime after Midwest’s formation, Harkrider, a licensed attorney, was appointed as the corporation’s secretary.

In 1984, Harkrider, acting on behalf of Midwest, contacted plaintiff about demolishing structures and removing debris located on the property. The structures to be demolished included three one-story brick buildings: an office building with an area of 1,050 square feet; a 3,618-square-foot garage that was used for repairing trucks and trailers; and an 18,459-square-foot dock that was used to unload trucks and trailers. The office building had a wooden floor that was located at ground level. The garage and dock buildings had concrete floors; the garage floor was at ground level, while the dock floor was four feet above the ground.

After being contacted by Harkrider, Sheldon Mandell, plaintiff’s president, visited the property with Harkrider and made an estimate of what the job would cost. Several months later, Harkrider contacted Mandell and asked that he submit a written proposal for the job.

The proposal, dated July 12, 1984, was prepared and signed by Allen Mandell, plaintiff’s estimator. The proposal provided that, in consideration for $10,900, the buildings would be wrecked down to the tops of the concrete floors, the basement areas would be filled and graded level, and fuel storage tanks would be dug out and removed. The proposal also contained an “alternate No. 1” stating that for the additional sum of $10,800, the dock building would be removed down to the level of the adjacent grade.

At a July 17 meeting with Allen Mandell, Harkrider signed the proposal and wrote “Accepted RH” next to alternate No. 1. Also written on the proposal was the statement “Remove all trees east of dock bldg, miscellaneous debris on site and all fencing. Add the sum of $1000.” This addition was initialled by both Mandell and Harkrider.

Plaintiff began work shortly after the proposal was signed. Work was concluded in early August. On November 8, 1984, after Midwest failed to respond to plaintiff’s requests for payment, plaintiff filed a claim for a mechanics’ lien with the Cook County recorder of deeds.

On January 14, 1985, plaintiff filed suit against Midwest in the circuit court. In count I of its complaint, plaintiff sought foreclosure of the mechanics’ lien and a sale of the property to satisfy Midwest’s debt. In count II, plaintiff charged Midwest with breach of contract, alleging that plaintiff had demolished and removed the structures from Midwest’s property as required by the contract and that Midwest had failed to make the agreed-upon payments.

The complaint was verified by Sheldon Mandell and accompanied by an “Affidavit as to Unknown Owners.” Service was made upon the Secretary of State as agent for Midwest and service on unknown owners was made by publication in the Chicago Daily Law Bulletin.

Midwest failed to respond and an order of default was entered against it on August 12, 1985. A prove up was conducted on August 27, 1985, and a decree of foreclosure and sale was entered.

On September 16, 1985, Harkrider, acting as Midwest’s attorney, filed a motion to vacate the default decree. This motion was granted, and Midwest filed its answer and affirmative defenses to plaintiff’s complaint, alleging that the proposal was too vague and ambiguous to constitute a contract and that the work performed by plaintiff was not the type to give rise to a mechanics’ lien.

Midwest also filed a counterclaim in which it alleged that it and plaintiff agreed that Midwest would request the Chicago Sanitary Rag Company to remove debris it placed on Midwest’s property, and if the Rag Company failed to remove the debris, plaintiff would do so and give Midwest a credit for any payment plaintiff received from the Rag Company. Midwest charged that this created a fiduciary relationship between it and plaintiff and that plaintiff breached its fiduciary duty to Midwest by entering into a “secret deal” with the Rag Company to remove the debris. Midwest charged that plaintiff's conduct also violated the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1985, ch. 121½, par. 262 et seq.).

In January 1986, plaintiff filed a motion to disqualify Harkrider as counsel for Midwest, alleging that the contract at issue was negotiated and executed by Harkrider and that, therefore, it was likely that Harkrider would be called as a witness. Plaintiff’s motion was denied as premature on March 10,1986.

Subsequently, after extensive discovery, including the taking of Harkrider’s deposition, plaintiff’s motion was renewed and a hearing was set for December 1986. At that hearing, the trial court found that the case could not proceed without Harkrider being called as a witness and ordered that he be disqualified from representing Midwest. Subsequently, Paul Bargiel and Stephen Sadin entered appearances as attorneys for Midwest.

Midwest appealed the order of disqualification to this court. We found that the court’s order was not final and appealable and remanded the cause to the circuit court for further proceedings. See National Wrecking Co. v. Midwest Terminal Corp. (1987), 164 Ill. App. 3d 621, 518 N.E.2d 193.

On April 9, 1987, Midwest filed a pleading entitled “Motion to Enjoin Law Firm Schwartz & Freeman and Lawyers in That Firm from Acting as Attorneys for National Wrecking Company in These Proceedings.” In this motion, which consisted of 48 pages and 166 paragraphs, Midwest argued that plaintiff’s lawyers were potential witnesses because of their conduct in causing the affidavit of Sheldon Mandell to be attached to the complaint and claim for lien, causing an affidavit of unknown owners to be filed when there were no such unknown owners, and causing the complaint and notice of prove up to be served on the Secretary of State when they knew that Harkrider was Midwest’s secretary and attorney.

On May 20, 1987, following arguments by the parties, the trial court denied Midwest’s motion, stating that the allegations it contained were collateral to the issues raised by the complaint and counterclaim. Midwest has filed a notice of appeal from this order.

In December 1987, plaintiff filed a motion for sanctions pursuant to section 2 — 611 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—611), alleging that statements in Midwest’s pleadings, motions, and certain discovery papers were made for an improper purpose. Arguments on this motion were heard on February 2, 1988, and the matter was taken under advisement.

Trial began on March 25, 1988, and lasted four days. Witnesses included Allen and Sheldon Mandell and Raymond Harkrider.

On the second day of trial, Midwest filed a motion to amend its answer and counterclaim. The motion sought to add two paragraphs: the first alleged that plaintiff illegally trespassed on Midwest’s property when it removed debris from the Rag Company property; the second alleged that plaintiff failed to give Midwest a contractor’s sworn statement as required by section 5 of the Mechanics Lien Act (Ill. Rev. Stat. 1987, ch. 82, par. 5). The trial court denied leave to add the second paragraph and reserved its ruling on the first.

During the course of the trial, Allen Mandell testified that he met with Harkrider in July 1984 to review plaintiff’s demolition proposal and to tour the site. At this meeting, the provision concerning removal of miscellaneous debris, trees, and fencing was added to the proposal. Mandell testified that the term “miscellaneous debris” referred to items scattered about Midwest’s property including broken pallets, the bottom of a trailer bed, and some tarpaper located north of the retaining wall. Mandell also testified that Harkrider informed him that the retaining wall represented the southern border of Midwest’s property.

Allen Mandell further testified that while the work on Midwest’s property was in progress, plaintiff was contacted by the Rag Company about removing debris located between the retaining wall and the Rag Company building. Mandell stated that three loads of debris were removed and that the Rag Company paid plaintiff $300 for each load. Mandell denied that he discussed the removal of the Rag Company debris with Harkrider or that Harkrider requested an invoice or a credit for the work done for the Rag Company.

Both Allen and Sheldon Mandell testified that the lot was clean and level when demolition was completed. However, on cross-examination both admitted that the foundation of the garage building protruded above the concrete floor. Sheldon Mandell testified that he measured this protuberance and found it was approximately one-half inch in height. Sheldon also testified that there were some broken bricks scattered about the site, but stated that the bricks were part of the “solid fill” used to fill in the basement areas. Both Allen and Sheldon denied that they were told by Harkrider that Midwest intended to use the property for a parking lot.

Harkrider’s testimony disputed that of the Mandells. He stated that at the meeting with Allen Mandell he told Mandell that Midwest wanted the property prepared for use as a parking lot. Harkrider further testified that he told Mandell that he would ask the Rag Company to remove its debris and that if it refused to do so, plaintiff should remove the debris while it had the equipment at the site. According to Harkrider, Mandell agreed to remove debris for an additional $1,000 and promised to give Midwest a credit for this amount if the Rag Company removed the debris. Harkrider claimed that the handwritten provision inserted into the proposal referred to this agreement.

Harkrider testified that there was miscellaneous debris scattered over the lot, that he told Allen Mandell that plaintiff should be concerned with cleaning only that portion of the property north of the retaining wall, and that Midwest was not interested in having any portion of the property south of the retaining wall cleaned.

Harkrider also disputed Sheldon Mandell’s claim that the foundation walls of the garage protruded only a half-inch above the concrete floor slab. Harkrider did not measure the height of the walls; however, he testified that they appeared to be four or five inches above floor level. Harkrider took several photographs of the site, showing the walls and what he claimed was debris left on the property by plaintiff. These photographs, along with several photographs taken by Allen Mandell, were admitted into evidence.

At the close of evidence, Midwest renewed its motion to amend its answer and counterclaim, arguing that the proofs offered during trial provided support for its allegations of trespass. The court denied the motion, finding that there was no evidence of trespass and, therefore, no basis for an amendment to conform to the proofs.

On July 29, 1988, the trial court issued a memorandum opinion finding that the proposal constituted the complete agreement of the parties and that there was no agreement to prepare the property for use as a parking lot. The court found that plaintiff had substantially performed its part of the agreement and that the presence of bricks scattered on the property and plaintiff’s failure to cut the garage wall foundations level to the concrete floor were “de minimis.” The court concluded that Midwest was entitled to a setoff of $2,525 for these items.

The court dismissed Midwest’s counterclaim, finding that there was no fiduciary relationship between plaintiff and Midwest and that there was no evidence of unfair or deceptive practices on the part of plaintiff. In addition, the court found that the term “miscellaneous debris,” as used in the proposal, referred not to the debris in the area of the retaining wall, but to debris that was scattered over the balance of the lot. However, the court determined that Midwest was entitled to a credit for $300 of the $900 paid to plaintiff by the Rag Company.

At the same time it filed its memorandum opinion, the court issued an order granting plaintiff’s section 2 — 611 motion for fees. The court found that Midwest’s action in filing a motion objecting to plaintiff’s affidavit of unknown owners and persisting in this objection throughout discovery, even after the court advised it that the affidavit was necessary, violated section 2 — 611.

The court also awarded sanctions in connection with certain of Harkrider’s actions during the discovery process. The court held these actions were in violation of its orders outlining the extent to which Harkrider could participate in the proceedings after his disqualification. The court specifically referred to Harkrider’s conduct at a September 1987 discovery meeting, describing it as “shameful and an abuse of the judicial process.” The court further found that the sanetions should be imposed against both Stephen Sadin and Harkrider, because of Sadin’s failure to control his client.

Responding to the other allegations in plaintiff’s sanction motion, the court found that some of the actions complained of could rise to a violation of section 2 — 611. However, the court declined to impose any additional sanctions, stating that it did not believe justice would be served by doing so. Plaintiff was ordered to submit a fee petition detailing its expenses in connection with the items found to be sanction-able.

On August 26, 1988, Midwest filed a notice of appeal from the court’s 1987 order disqualifying Harkrider, the July 29 memorandum opinion, and the July 29 order granting plaintiff’s motion for sanctions.

On August 30, plaintiff filed its petition for sanctions seeking a total of $10,198.80. On the same date, plaintiff also filed a supplemental motion for sanctions, seeking recovery for alleged misconduct by Midwest occurring after the original motion for sanctions was filed. In a petition in support of its supplemental motion, plaintiff requested $4,682.50 in attorney fees.

On November 23, 1988, following a hearing, the court granted part of plaintiff’s supplemental motion for sanctions. The court found that Midwest violated section 2 — 611 in repeatedly asserting that motions must be verified and in repeatedly filing motions seeking to get plaintiff to specify which interrogatories were answered by Allen and Sheldon Mandell. The court held that Midwest, Harkrider, and Sadin shared liability for these violations and ordered them to pay plaintiff $1,901.40.

A hearing was held on December 15, 1988, in connection with plaintiff’s original petition for sanctions, and on January 3, 1989, an order was entered awarding plaintiff $9,213.80 in sanctions. This order stated that the sanction award was made pursuant to both section 2—611 and Supreme Court Rule 219(c) (107 Ill. 2d R. 219(c)), and that Midwest, Harkrider, and Sadin were jointly and severally liable for paying the sum. Notices of appeal were filed from both awards.

The appeals from the May 20, 1987, order, the July 29, 1988, orders, the November 23, 1988, orders and the January 3, 1989, order have been consolidated in this court. We affirm in part and reverse in part.

Appellants’ first arguments on appeal concern the trial court’s order granting plaintiff’s motion to disqualify Raymond Harkrider. Rule 5—101(b) of the Code of Professional Responsibility (107 Ill. 2d R. 5—101(b)) provides that a lawyer shall not accept employment in contemplated or pending litigation if he knows or it is obvious that he or a lawyer in his firm ought to be called as a witness unless his testimony will relate solely to an uncontested matter, his testimony will relate solely to a matter of formality and there will not be substantial testimony offered in opposition to it, his testimony will relate solely to the nature and value of legal services rendered, or it would work a substantial hardship on the client because of the distinctive value of the lawyer or his firm as counsel in the particular case.

In the present case, Harkrider and the Mandells were the only parties involved in the negotiation of the proposal. In its answer, affirmative defenses, and counterclaim, Midwest alleged the existence of agreements in addition to those set forth in the proposal and charged that plaintiff had breached these agreements. The only witness who could have testified for Midwest concerning these additional agreements was Harkrider. Accordingly, we find that the trial court properly concluded that Harkrider ought to be called as a witness, and we affirm the trial court’s order of disqualification.

Appellants next argue the trial court erred in entering judgment for plaintiff under the doctrine of substantial performance. Appellants claim that plaintiff did not substantially perform its part of the contract because it failed to wreck the garage down to the concrete floor, it breached its promise to provide Midwest with an invoice and credit for removal of Rag Company debris, and it failed to remove the miscellaneous debris from the property.

Under the doctrine of substantial performance, a contractor may recover where there has been substantial performance of a contract even though there may be some omissions and defects in the contract’s performance, as measured by the strict terms of the contract. (Delta Construction, Inc. v. Dressier (1978), 64 Ill. App. 3d 867, 381 N.E.2d 1023.) Substantial performance will be found where there is an honest and good-faith performance of the contract and no willful departure from or omission of the essential parts of a contract. (Broncata v. Timbercrest Estates, Inc. (1968), 100 Ill. App. 2d 49, 241 N.E.2d 569.) In the present case, we find that the trial court properly concluded that plaintiff had substantially performed its part of the contract.

Initially, we note that, despite appellants’ claim to the contrary, the trial court did not find that plaintiff breached a promise to give Midwest credit for money paid by the Rag Company. Rather, the trial court allowed a credit for $300 of the amount paid to plaintiff by the Rag Company based on its finding that some of the Rag Company debris had spilled over onto Midwest’s property and it would have been difficult to determine what amount was on Midwest’s property and what amount was on the Rag Company’s property. In light of the fact that there was no finding of a promise to give an invoice or credit, the failure to do so does not support Midwest’s claim that plaintiff did not substantially perform.

Midwest’s contention that plaintiff failed to remove the miscellaneous debris scattered over the property is based on photographs in the record depicting two or three areas where rags, boards, and other items were present on the property and an area along the edge of the property where some bricks remained. Plaintiff’s witnesses denied that the rags and boards were present when work was completed, and the trial court apparently found their testimony to be credible.

The trial court also found that the presence of the bricks along the edge of the property was de minimis. Giving consideration to the fact that the proposal called for the removal of three buildings and the clearing of a 62,000-square-foot lot, we must agree that the failure to remove a few bricks did not amount to a failure to perform on the part of the plaintiff.

We next consider Midwest’s arguments that plaintiff did not substantially perform because it failed to completely remove the garage foundation walls.

Sheldon Mandell testified that the remaining walls measured one-half inch in height. Although Harkrider testified that the walls appeared to be four to five inches tall, he admitted that he never measured them. An expert called on behalf of Midwest testified that it would cost $8,300 and take two days and 12 loads to remove the walls and clear the site. However, his testimony was based on the condition of the site as it was at the time of trial, and included the cost of removing a substantial amount of debris that had been dumped on the property in the years between plaintiff’s removal of the buildings and the trial.

In awarding the $2,525 setoff, the trial court found that the work could be done in one day and that plaintiff should not be responsible for the expense of clearing the site of debris that had been dumped there after it completed the project. We affirm. We find that the failure to remove all of the garage foundation walls does not amount to a departure from or omission of an essential part of the contract. We also find that the trial court’s determination of the amount of the set-off is not contrary to the manifest weight of the evidence and, therefore, we see no reason to disturb it. See Joray Mason Contractors, Inc. v. Four J’s Construction Corp. (1978), 61 Ill. App. 3d 410, 378 N.E.2d 328.

Appellants’ next arguments concern the applicability of the Mechanics Lien Act (Act) (Ill. Rev. Stat. 1985, ch. 82, par. 1 et seq.). Appellants argue that plaintiff is not entitled to a mechanics’ lien because the Act does not apply to demolition. This argument is entirely without merit.

In a 1980 amendment to the Act, the definition of persons entitled to a mechanics’ lien was extended to include anyone who contracts to “remove any house or structure” from the subject property. (Ill. Rev. Stat. 1985, ch. 82, par. 1.) Thus, it is readily apparent that plaintiff is covered under the Act and any argument to the contrary is plainly nonsense.

Appellants also argue that plaintiff’s failure to give Midwest a sworn contractor’s statement, as required by section 5 of the Mechanics Lien Act (Ill. Rev. Stat. 1985, ch. 82, par. 5), bars it from recovering on its breach of contract claim. We cannot agree.

Appellants’ argument is based on two cases in which the Second District of the Illinois Appellate Court held that a contractor’s failure to give an owner a sworn statement pursuant to section 5 precluded the contractor from recovering for breach of contract. (Malesa v. Royal Harbour Management Corp. (1989), 187 Ill. App. 3d 655, 543 N.E.2d 591; Ambrose v. Biggs (1987), 156 Ill. App. 3d 515, 509 N.E.2d 614.) These cases directly conflict with this court’s decision in Hall v. Harris (1926), 242 Ill. App. 315, where we held that a contractor’s failure to provide a sworn statement would not prevent him from suing to recover under the contract.

Appellants argue that Hall is no longer applicable because of later amendments to section 5. We disagree.

The legislature is presumed to be aware of the construction given to a statute by the courts of this State. (Hupp v. Gray (1978), 73 Ill. 2d 78, 382 N.E.2d 1211.) When the legislature amends or reenacts a statute which has been the subject of judicial interpretation and leaves unchanged portions of the statute that have been judicially construed, there is a strong presumption that the legislature intended to adopt the previous judicial construction of the unamended language. People v. Agnew (1985), 105 Ill. 2d 275, 473 N.E.2d 1319; Hupp v. Gray, 73 Ill. 2d at 86.

In the present case, section 5 of the Mechanics Lien Act was amended to add the requirement that contracts include language concerning the necessity of a sworn statement requirement. The original portion of the statute was unchanged and nothing in the amendments indicates any intent on the part of the legislature to bar contract actions for failure to include this language or for failure to give a sworn statement pursuant to section 5. Moreover, it is undisputed that the failure to provide a sworn statement does not bar a mechanics’ lien claim (see, e.g., Gillespie v. Patrick (1909), 146 Ill. App. 290; Rawle v. Gilmore (1898), 76 Ill. App. 372 (holding that the requirement to provide a sworn statement can be waived)); and we find no basis for concluding that by amending section 5, the legislature intended a different result with respect to contract claims. Accordingly, we find that under our earlier decision in Hall, plaintiff’s failure to provide a sworn statement pursuant to section 5 does not bar its recovery for breach of contract.

Appellants next argue that the trial court erred in dismissing Midwest’s counterclaim, in denying Midwest’s motion to amend its counterclaim, and in dismissing Midwest’s motion to enjoin plaintiff’s attorneys. We find no error.

In its counterclaim, Midwest charged plaintiff with common law fraud and a violation of the Consumer Fraud and Deceptive Business Practices Act (CFA). Midwest alleged that plaintiff agreed to give Midwest a credit for payments received for the removal of Rag Company debris from Midwest’s property, that this agreement created a fiduciary relationship between plaintiff and Midwest, that Midwest entered into a secret deal with the Rag Company in violation of this fiduciary relationship, and that plaintiff never intended to perform its agreement to give Midwest credit for amounts it received from the Rag Company. Midwest argues that these allegations support a finding of common law fraud and a violation of the CFA.

In disposing of Midwest’s common law fraud claim, we need only point out that the failure to perform a contractual promise, even when the promise is made with an intent not to perform, does not constitute common law fraud. (Bank of Lincolnwood v. Comdisco, Inc. (1982), 111 Ill. App. 3d 822, 444 N.E.2d 657.) Therefore, Midwest’s common law fraud claim was properly dismissed.

Turning to Midwest’s CFA claim, we note that Midwest again contends that the trial court found that plaintiff agreed to give Midwest a credit for amounts paid by the Rag Company. This contention is plainly untrue.

The trial court found only that the parties agreed that plaintiff would contact the Rag Company about removing the debris and that if the Rag Company refused to do so, National was to remove the debris and advise Midwest of the amount of money this removal entailed. Nowhere in its findings did the trial court conclude that the parties agreed that Midwest would get a credit against the contract price for amounts the Rag Company paid plaintiff, and we find no basis for inferring such a conclusion.

The question of whether there was an agreement to give a credit clearly turns on the credibility of the witnesses: the Mandells testified that there was no agreement; Harkrider testified that there was. In refusing to find that the parties agreed to a credit, the trial court apparently discounted Harkrider’s testimony. This was well within the trial court’s discretion. In re Marriage of Ligas (1982), 110 Ill. App. 3d 1, 441 N.E.2d 1277; Northbrook Trust & Savings v. County of Cook (1977), 47 Ill. App. 3d 879, 365 N.E.2d 433.

In addition, the trial court’s express finding that the proposal constituted the complete agreement of the parties effectively defeats Midwest’s claim that plaintiff violated the CEA by agreeing to give Midwest a credit while intending not to do so. Accordingly, Midwest’s CEA counterclaim was properly dismissed.

We also find that the trial court acted properly in denying Midwest’s motion to amend its counterclaim to allege trespass by plaintiff. Midwest’s trespass claim was based on plaintiff’s use of Midwest’s property to remove Rag Company debris from between the retaining wall and the Rag Company building.

Trespass is defined as the unauthorized entry on the land of another. (Checkley v. Illinois Central R.R. Co. (1913), 257 Ill. 491, 100 N.E. 942.) In the present case, the trial court’s finding that there was no evidence of trespass was based on Harkrider’s testimony that he instructed plaintiff to remove the Rag Company debris while plaintiff had its equipment at the site. The trial court concluded that there could be no trespass since Harkrider specifically instructed plaintiff to go onto Midwest’s property to clean up the area in question. We agree with the court’s conclusion, and we affirm its denial of Midwest’s motion to amend.

We next consider appellants’ claim that the trial court erred in dismissing Midwest’s motion to enjoin plaintiff’s attorneys. From their briefs on appeal, it appears that Midwest’s claim is based only on paragraph 162 of the motion, which contains an allegation that the actions of plaintiff’s attorneys violated section 2 — 611. Midwest argues that this “request for sanctions’’ should not have been denied without a hearing.

In its brief on appeal, Midwest claims that its request for fees is based on the conduct of plaintiff’s attorneys in serving process on the Secretary of State as agent for Midwest in an attempt to obtain a default decree of foreclosure against Midwest without its knowledge of participation. We agree that plaintiff acted improperly in serving process on the Secretary of State. Section 13 of the Business Corporation Act of 1933 (Ill. Rev. Stat. 1983, ch. 32, par. 157.13) provides that whenever a corporation’s registered agent cannot with reasonable diligence be found at its registered office in this State, the Secretary of State is the irrevocable agent for service of process for that corporation. Here, plaintiff had been corresponding with Harkrider, the secretary of Midwest, and Sue Benson, the president of the company. Either of these officers could have been properly served as agent for Midwest. A minimal amount of diligence, such as a cursory review of company records, would have revealed the appropriate mailing address. Under these circumstances, service upon the Secretary of State was improper. Because the propriety of service was not challenged in the trial court, the defendant waived any objections to service by filing a general appearance and answering plaintiff’s complaint.

Midwest filed a motion entitled “Motion to Enjoin Law Firm Schwartz & Freeman and Lawyers in that Firm From Acting as Attorneys for National Wrecking Company in These Proceedings.” It consisted of 48 pages and 166 numbered paragraphs. Paragraph 162 contained the following statement:

“By reason of above-mentioned untrue allegations and representations and other improper conduct Midwest has and asserts various claims against [plaintiff] and its attorneys including claims for damages both compensatory and punitive claims for costs and expenses of litigation including attorney fees and claims under section 2 — 611 of the Code of Civil Procedure as recently amended.”

Although the word “sanctions” is not mentioned, the reference made to section 2 — 611 clearly indicates an intent by the defendants to seek costs and expenses for sanctionable misconduct. For example, defendants incurred expenses as a result of plaintiff’s improper service upon the Secretary of State, when service could have been made directly upon Harkrider, the secretary of Midwest, with whom the plaintiffs had been corresponding. Therefore, we remand this case for a sanctions hearing, wherein the defendants may be allowed to present evidence in support of their request for sanctions insofar as it relates to improper service.

Appellants’ final arguments on appeal challenge the propriety of the trial court’s orders awarding sanctions to plaintiff. In its January 3, 1989, order, entered pursuant to plaintiff’s original motion, the trial court awarded plaintiff $2,196.40 in connection with Midwest’s motion objecting to plaintiff’s affidavit of unknown owners; $1,320 in connection with appellants’ behavior during discovery; and $5,697.40 for fees incurred in preparing the motion for sanctions.

In seeking reversal of this award, appellants first contend that the objections to the affidavit of unknown owners were well grounded in fact and, therefore, will not support a section 2 — 611 award of sanction. We disagree.

Under section 11 of the Mechanics Lien Act, all parties with any interest in property subject to a mechanics’ lien are necessary parties to a proceeding to foreclose the lien. (Anderson v. Gousset (1965), 60 Ill. App. 2d 309, 208 N.E.2d 37.) The failure to include a necessary party will defeat the lien. (Kleinschnittger v. Dorsey (1910), 152 Ill. App. 598.) To avoid this result, plaintiffs in an action to foreclose a mechanics’ lien are advised to file an affidavit of unknown owners. Despite the trial court’s repeated statements to this effect, Midwest persisted in asserting objections to the affidavit.

Section 2 — 611 (now Supreme Court Rule 137) provides that “[t]he signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion or other paper; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law, *** and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.” (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 611.) We believe the record amply supports a conclusion that Midwest’s objections to the affidavit were interposed for the improper purpose of delay and harassment and, therefore, we affirm the trial court’s imposition of sanctions in connection therewith.

Appellants also argue that the trial court erred in awarding sanctions in connection with Harkrider’s conduct at the September 1987 discovery meeting because the conduct did not involve an allegation or denial in a written pleading as required by section 2 — 611. AppeUants further argue that sanctions were not warranted because the meeting was conducted in an orderly manner and because they complied with plaintiff’s discovery request in a sensible and acceptable fashion.

Appellants’ contentions concerning the manner in which the meeting was conducted are belied by the transcript of the September 1987 meeting. A review of this transcript indicates that the trial court was entirely justified in finding that appellants’ conduct at the meeting was designed to waste time and abuse the discovery process.

As for appeUants’ argument that Harkrider’s conduct was not subject to sanctions under section 2 — 611, we note that the trial court’s award of sanctions was made pursuant to both section 2 — 611 and Supreme Court Rule 219. Supreme Court Rule 219 specifically authorizes sanctions for a party’s abuse of discovery procedures and failure to comply with court orders or rules regarding discovery. A court’s order awarding fees pursuant to Supreme Court Rule 219(c) is a matter of discretion and will not be disturbed absent an abuse of that discretion. (Van Hyning v. Hyk (1979), 78 Ill. App. 3d 721, 397 N.E.2d 566.) In the present case, we find no abuse of discretion in the trial court’s decision to award sanctions under Rule 219(c).

We do, however, find an abuse of discretion by the trial court in awarding $5,697.40 for fees incurred by plaintiff in preparing its motion for sanctions. A court may order an offending party to pay “reasonable expenses” incurred as a result of violations of the provisions of section 2 — 611. In Dayan v. McDonald’s Corp. (1984), 126 Ill. App. 3d 11, 466 N.E.2d 945, this court held that common sense required a finding that the term “reasonable expenses,” as used in section 2 — 611, included the fees and expenses incurred for work performed in prosecuting the request for sanctions. However, we do not find this amount to be “reasonable,” and, therefore, we reduce this part of the sanctions award to $1,500 based on an examination of the record.

Appellants next argue that the trial court erred in granting plaintiff’s supplemental motion for section 2 — 611 sanctions. In its supplemental motion, plaintiff sought fees for: (1) Harkrider’s conduct at a discovery meeting held in February 1988; (2) Midwest’s filing of a response to plaintiff’s original motion for sanctions in which Midwest described a number of plaintiff’s motions as “unverified,” despite the fact that the motions in question were not required to be verified; and (3) Midwest’s filing of a third motion to compel requesting that plaintiff identify which interrogatories were answered by Allen Mandell and which were answered by Sheldon Mandell.

Although the trial court refused to order sanctions for Harkrider’s conduct at the February 1988 meeting, it awarded plaintiff $250 in connection with Midwest’s motion to compel and $250 in connection with the response to plaintiff’s original motion for sanctions. The court also awarded plaintiff $1,401.40 for fees incurred in preparing its supplemental motion for sanctions. We agree that these awards were improper.

Prior to filing its third motion to compel, Midwest had attempted on two previous occasions to determine which answers Mandell had provided to its interrogatories. In response, the trial court entered orders requiring plaintiff to file a supplemental answer identifying those interrogatories answered by Sheldon and those answered by Allen. Plaintiff filed an answer stating that both Sheldon and Allen Mandell had provided information in answer to Midwest’s interrogatories.

In its third motion to compel, Midwest argued that the answer was nonresponsive and again requested that plaintiff identify who answered what questions. At a hearing on this motion, the trial court agreed that Midwest was entitled to know who answered which interrogatories. In light of this motion, we conclude that it was an abuse of discretion to award sanctions for Midwest’s filing of the motion.

We also conclude that the court abused its discretion in awarding sanctions in connection with the references to plaintiff’s unverified filings contained in Midwest’s response to plaintiff’s original motion for sanctions. Accordingly, we reverse both awards of $250 and the award of $1,401.40 for fees incurred in preparing the supplemental petition.

In their final argument on appeal, appellants contend that the trial court’s order imposing sanctions against Harkrider must be reversed. Appellants argue that Harkrider is not amenable to sanctions because he did not sign any papers either as a party or a lawyer. We disagree.

In its order awarding sanctions under plaintiff’s original motion, the trial court stated that the award was made pursuant to both section 2— 611 and Supreme Court Rule 219. Unlike section 2 — 611, Rule 219 does not limit imposition of sanctions only to parties or their attorneys. (See Profesco Corp. v. Dehm (1990), 196 Ill. App. 3d 127, 553 N.E.2d 101.) Accordingly, we find no reason to disturb that portion of the trial court’s order finding that Midwest, Harkrider, and Sadin were jointly and severally liable for payment of the sanctions award.

In conclusion, we affirm the trial court’s order disqualifying Harkrider from representing Midwest and the trial court’s judgment in favor of plaintiff. We also affirm the trial court’s dismissal of Midwest’s counterclaim; its denial of Midwest’s motion to amend the counterclaim; and we remand for a hearing on Midwest’s request for sanctions. Finally, we affirm the award of sanctions under plaintiff’s original motion, but we reduce the dollar amount of the sanctions award which relates to costs incurred in the preparation of plaintiff’s sanctions motion. In addition, we reverse the award made under plaintiff’s supplemental motion.

Judgment affirmed in part; reversed in part and remanded in part.

GREIMAN, P.J., and RIZZI, J., concur.


source: Caselaw Access Project

author: JUSTICE GORDON

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DONALD THOMPSON et al., Defendants-Appellants.
    First District (5th Division)
    Nos. 1—87—3716, 1—87—3736 cons.
    Opinion filed December 27, 1991.

      Randolph N. Stone, Public Defender, of Chicago (James N. Perlman, Assistant Public Defender, of counsel), for appellants.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Bonnie Meyer Sloan, and Donna J. Norton, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE GORDON

delivered the opinion of the court:

Following a jury trial, defendants Donald Thompson and Kenne Jordan were found guilty of armed robbery. Thompson was sentenced to 20 years’ imprisonment, and Jordan was sentenced to 18 years’ imprisonment. On appeal, defendants contend that the trial judge made improper comments in the presence of the jury shifting the burden of proof to defendants; that the court violated defendants’ due process rights by failing to instruct the jury on the requisite mens rea for armed robbery; that the trial court failed to properly conduct the voir dire of the jury; that the sentences are improper because the trial court relied on an element inherent in armed robbery; that the sentences are improper because the trial court relied on an improper aggravating factor; that Thompson was denied a fair sentencing hearing; that Jordan is entitled to a new sentencing hearing because the trial court improperly found he lacked remorse; and that the sentences are excessive.

For purposes of expedience, the specific facts pertaining to the trial judge’s conduct of the trial and sentencing hearing upon which defendants’ contentions on appeal are predicated shall be discussed in the analytical portion of the opinion. Our statement of facts here will be restricted to those relevant facts pertaining to the actual commission of the crime and the identification of defendants.

At trial, Yolanda Jackson testified that on November 16, 1986, at 7:00 p.m., she worked at a Kentucky Fried Chicken restaurant in Chicago. Defendants entered the restaurant and tried to sell Jackson and a co-worker, Lurene Pierce, some jewelry. Thompson asked Jackson for a date. Defendant stood three feet from Jackson and remained in the restaurant for 10 to 15 minutes. When two police officers in uniform entered the restaurant, defendants left.

At 8:30 p.m. on the same day, defendants again entered the restaurant. Jackson took their food order, and Pierce began to pack the food. Thompson then grabbed Jackson’s arm and demanded money from the register. Thompson held a gun pointed at Jackson. Jackson turned the money over to Thompson. Jordan reached over the counter and grabbed coins from the register. Defendants were in the restaurant approximately five minutes. When they exited the restaurant, Jackson activated a silent alarm.

Pierce, Jackson’s co-worker, testified similarly.

Defendants’ two visits to the restaurant were videotaped, and still photographs of the videotape showing defendants at the counter were introduced into evidence.

Jackson testified further that five days later, on November 21, 1986, she went into a pizza parlor next door to the Kentucky Fried Chicken restaurant. Thompson, accompanied by Jordan, happened to be present and approached Jackson, to ask if she remembered him. Jackson recognized them as the men who had robbed the store, but told defendants that she did not know who they were. Jackson then left the pizza parlor and telephoned the police. When they arrived, she reentered the pizza parlor with the police officers and identified defendants.

Jordan’s mother and sister testified on behalf of Jordan that he was home from 8:00 p.m. until midnight on November 16,1986.

Opinion

Defendants first contend that the trial judge committed reversible error when he made an improper comment in front of the jury. In a side bar, after the State rested its case, the trial court denied defendants’ motion for a directed finding, stating that the State had met its burden of proof and the case would proceed to the defense case in chief. At that point, counsel and the judge returned to the presence of the jury, where the court stated:

“Okay. Accordingly, ladies and gentlemen at this particular juncture it is the opinion of the court that the defense will have to move forward in presenting its case.”

Defense counsel immediately moved for a mistrial. The court denied the motion and out of the presence of the jury, stated: “It’s appropriate and proper for the court to indicate that the defense must proceed in presenting its case if it sees fit to do so and I see nothing wrong or reversible with that particular statement.”

Defendants maintain that the comment could “have only one meaning” for the jurors. “Buried just below the surface of [the] comment is the message: it is the opinion of the court [that] the State has proven its case unless the defense can present some evidence to counter the State’s case.”

In order for an improper comment by a trial judge to constitute reversible error, the defendant must show that the remark was prejudicial and that he was harmed by the comments. (People v. Heidorn (1983), 114 Ill. App. 3d 933, 449 N.E.2d 568.) The remark must constitute a material factor in the defendant’s conviction. People v. Brown (1980), 87 Ill. App. 3d 368, 409 N.E.2d 81.

We find that the propriety of the judge’s comment here was at the very least questionable and should have been avoided. While not overtly stating that defendants must go forward with a defense, the remark unnecessarily risked conveying the signal by implication.

The State relies on People v. Cannon (1971), 49 Ill. 2d 162, 273 N.E.2d 829, in urging that there was no error. In that case, the court found no impropriety where, after the State rested its case on a Friday afternoon, the judge informed the jury that “the taking of evidence would be resumed on Monday,” and then asked counsel for one of the defendants if on Monday “he would be ready to start some part of his case.” (Cannon, 49 Ill. 2d at 166.) The court on appeal held: “We fail to see how the jury could construe the inquiry to mean that the court was of the opinion that the People had proved their case.” (Cannon, 49 Ill. 2d at 166.) Unlike the present case, Cannon involved an inquiry, not a statement of the court’s “opinion”; involved the possibility of defendant’s presenting evidence, not an announcement that defense “will have to move forward in presenting its case”; and involved a statement made to counsel for a codefendant for whom the court later directed a verdict of acquittal.

However, while the judge’s comment in this case, unlike those in Cannon, creates a much closer question of impropriety, it would clearly not constitute reversible error. Because the State’s evidence here was overwhelming, the comment of the trial judge, regardless of its impropriety, could not have been a prejudicial factor in defendants’ convictions. Two eyewitnesses identified defendants as the robbers. They viewed defendants in good light for 10 to 15 minutes the first time, and for five minutes the second time, from a distance of three feet. Moreover, the two visits were videotaped and still photographs of defendants standing at the cash register were admitted into evidence. Finally, defendants approached Jackson, in a pizza parlor next door to the Kentucky Fried Chicken restaurant they had robbed five days earlier, and asked if Jackson remembered them. Jackson then offered a positive identification of defendants to the police. In view of this overwhelming evidence which supported the convictions, the remark by the trial judge could not have played a material role in the jury’s verdict. Thus any error was clearly harmless. (See People v. Tucker (1989), 186 Ill. App. 3d 683, 542 N.E.2d 804 (trial court’s improper comments which concerned the burden of proof were harmless error where defendant made no showing of resulting prejudice).) We note further that the jury here was properly instructed on the burden of proof at the end of the trial. See People v. Cannon, 49 Ill. 2d at 166.

Defendants next contend that the trial court erred in failing to instruct the jury that the State had the burden of proving beyond a reasonable doubt that defendants acted knowingly or intentionally when they robbed the store. Defendants failed to object at trial and, therefore, have waived the issue for purposes of appeal. (See People v. Roberts (1979), 75 Ill. 2d 1, 10, 387 N.E.2d 331.) Defendants urge that plain error occurred. (See 134 Ill. 2d R. 451(c).) No plain error occurred here, where the case is not factually close. (See People v. Tannenbaum (1980), 82 Ill. 2d 177, 180, 415 N.E.2d 1027; People v. Anderson (1981), 93 Ill. App. 3d 646, 653, 417 N.E.2d 663.) Moreover, armed robbery is a general intent crime (People v. Banks (1979), 75 Ill. 2d 383, 392, 388 N.E.2d 1244), and instructions need not include a description of a specific mental state. People v. Avant (1989), 178 Ill. App. 3d 139, 532 N.E.2d 1141; People v. Talley (1988), 177 Ill. App. 3d 170, 531 N.E.2d 1139; People v. Leonard, (1988), 171 Ill. App. 3d 380, 526 N.E.2d 397.

Defendants next contend that the trial court failed to ask two of the jurors questions during voir dire as required under the holding in People v. Zehr (1984), 103 Ill. 2d 472, 469 N.E.2d 1062. Defendants assert that the trial judge here failed to question juror Paul Kertay regarding defendants’ right not to testify. He also failed to question juror Kim Lang about a defendant’s right not to offer any evidence in his own behalf and the State’s burden of proving defendants guilty beyond a reasonable doubt.

Our review of the record does not agree with defendants’ contention regarding Kertay. The trial judge questioned both Kertay and Lang regarding defendants’ right not to testify. We agree, however, that the judge failed to ask Lang about defendants’ right not to offer any evidence. Contrary to the State’s argument, this inquiry was not made unnecessary by the court’s general comments to the general venire since the record does not reflect that this specific admonition was ever given to the general venire. Notably, neither defendant here testified; Jordan’s defense consisted of his mother’s and sister’s alibi testimony; Thompson offered no defense.

However, defendants failed to object at trial or include this issue in their motion for a new trial and, thus, have waived the issue for purposes of appeal. People v. Coleman (1989), 129 Ill. 2d 321, 340-41, 544 N.E.2d 330; People v. Holman (1984), 103 Ill. 2d 133, 181-82, 469 N.E.2d 119; People v. Thomas (1989), 186 Ill. App. 3d 782, 542 N.E.2d 881.

Moreover, even if there was no waiver, it would not provide a basis for reversal because even though the error is of constitutional magnitude, the overwhelming weight of the evidence supporting the convictions enables us to find with certainty that this was harmless beyond a reasonable doubt.

Defendants next contend that, in sentencing defendants, the trial court improperly relied on an inherent element of the offense of armed robbery as an aggravating factor. At Jordan’s sentencing hearing, the court stated:

“But I’m going to start again with your first premise that there were no threats of violence. Mr. Grzeca [defense counsel], if I had a gun in my hand and I waived [sic] it in front of your face and didn’t even open up my mouth, you are not going to stay here and wait and see if there is any threat of violence, you as an individual, you can justifiably anticipate that there is plenty of violence there; if that trigger is pulled and it is a matter of very little pressure that could be put on that trigger to use that gun you may not be here to talk about it later on. *** So I can’t see any basis for saying there were no threats of violence ***.”

At Thompson’s sentencing hearing, the court noted generally that whatever it had said to Jordan was also applicable to Thompson.

These comments, however, were made only after defense counsel argued that no violence or serious harm was involved in this case. Defense counsel argued:

“[T]here was no testimony that would link what the courts have considered serious harm to any act that was committed by Mr. Jordan, meaning, there were no threats of violence from Mr. Jordan, there were no movements, any type of *** exaggerated type of movement toward the victim in this matter, there was no evidence of that. *** [H]ere, there was no serious harm, there was [sic] no physical injuries, there was no testimony as to emotional stress suffered after this incident. So that takes it out of the realm of serious harm.
It is ironic that [the prosecutor] used the word[s] ‘some violence’ and yet failed to go into any detail as to what that violence was. The words ‘some violence’ leaves [sic] the court begging for an avenue to inflict a sentence that is proportionate with a violent act.”

Thus, the trial judge was merely responding directly to defense counsel’s argument at sentencing that there were no threats of violence nor any movement toward the victim. (See People v. Reid (1983), 94 Ill. 2d 88, 445 N.E.2d 329 (court’s comments as to threat of harm were in response to defense counsel’s argument; the comments did not indicate the court considered the threat of harm as an aggravating factor).) No error occurred.

We are unpersuaded by the case defendants cite. (See People v. Rhodes (1986), 141 Ill. App. 3d 362, 363, 490 N.E.2d 169 (court vacated a 10-year sentence for armed robbery and remanded for a new sentencing hearing because the trial court had expressly considered the serious physical harm threatened during the robbery).) Unlike the present case, Rhodes did not involve a trial judge responding to argument in mitigation made by defense counsel regarding the absence of violence.

Defendants next contend that the trial court improperly considered compensation as an aggravating factor during sentencing. While the State argued in aggravation that defendants received compensation from the robbery, the trial court never referred to that fact. We presume that in imposing sentence on a defendant, the trial judge considers only proper factors. People v. Heredia (1989), 193 Ill. App. 3d 1073, 550 N.E.2d 1023.

Defendant Thompson alone contends that “the trial court denied [him] effective assistance of counsel at sentencing when it precluded counsel from presenting evidence and questioning a probation officer.” At sentencing, the court noted the presentence report included the phrase: “On advice from his attorney, defendant made no statement.”

At the sentencing hearing, the court asked the probation officer to clarify the statement. She testified that she had expressly advised defendant that without his attorney present, it may be in his best interest not to comment on the incident. In an attempt to satisfy the court on this question, counsel for Thompson then sought to question the probation officer.

“[DEFENSE COUNSEL]: May I inquire?
THE COURT: Sure, you may.
[DEFENSE COUNSEL]: On that basis you informed this Defendant, since his Attorney was not here and you proceeded to ask him the questions that you asked at that point, is that right?
THE COURT: Counsel, that is an improper question, that has nothing to do with a pre-sentence investigation.
[DEFENSE COUNSEL]: I don’t understand.
THE COURT: I’ll answer that question, that has nothing to do with it, any reference to advice of an attorney representing an individual during a pre-sentence investigation. I will ask you
not to even go into that. Do you understand that?
* * *
*** Because as a matter of fact you weren’t even the attorney of record at the time and so that question is completely improper for you to ask.”

Defendant Thompson now argues that the court’s decision “prohibited counsel from fulfilling his duty to his client regarding insuring the accuracy of the presentence report.” Thus, Thompson concludes, the record “clearly demonstrates an abridgement of [his] rights to a full sentencing hearing.” Thompson asks that we remand for a new sentencing hearing.

We agree with the State’s position (which Thompson does not refute in his reply brief) that this is actually an issue regarding the fairness of the sentencing hearing, and not an issue regarding the denial of the right to effective assistance of counsel since counsel, by his attempts to inquire into the matter before he was cut off, demonstrated his effective assistance.

While the sentencing judge was critical of the probation officer for offering this advice to Thompson, there is no indication that the judge relied on the statement in the presentence report in imposing a sentence on Thompson. Thus, it does not appear that any further inquiry would have had any impact on the ultimate sentence since the judge’s interest was focused on the propriety of the probation officer’s conduct rather than the defendant’s conduct. Although it would have been preferable for the court to permit full scope of cross-examination, it is apparent here that there was no abuse since the area in which cross-examination was limited did not pertain to matters material to the imposition of sentence. The character and scope of cross-examination at a sentencing hearing are left largely to the discretion of the trial court, and the court’s ruling will not be overturned on appeal absent an abuse of that discretion which results in manifest prejudice to the defendant. People v. Fields (1990), 135 Ill. 2d 18, 552 N.E.2d 791.

Next, defendant Jordan alone contends that the trial court improperly stated at the sentencing hearing that Jordan lacked remorse. At the hearing, Jordan stated:

“I would like to say to you that I have done wrong things at times, you know, I’m really being found guilty of something that I didn’t do as it is, and like counsel said, you know, if you can take into consideration, you know, and not give us a whole lot of time for something we haven’t done.”

The court later stated:

“Your attorney was talking about remorse. Mr. Grzeca [defense counsel], I don’t think I’m going to address myself to that particular aspect because of the nature of the offense before this court. Try as I may, I looked over the facts of this case, I looked over the pre-sentence investigation which is part of Mr. Jordan’s case consisting of twelve pages, I can find nothing in any way to reflect upon any remorse by the defendant herein.”

The trial court is in the best position to evaluate the sincerity of the defendant’s remarks. (People v. Greene (1981), 102 Ill. App. 3d 933, 430 N.E.2d 23.) In the present case, we cannot say that the trial court’s conclusion that defendant lacked remorse was erroneous. Here, it would not have been inappropriate, in light of the overwhelming evidence of defendant’s guilt, for the trial court to deem defendant’s continued protestations of innocence to be a demonstration of a lack of remorse. See People v. Greene, 102 Ill. App. 3d 933, 430 N.E.2d 23 (court rejects defendant’s arguments that at the sentencing hearing, the trial court misinterpreted a statement made by defendant as evidence of a lack of a penitent attitude).

In regard to the court’s reference to lack of remorse and continued protestation of innocence, our supreme court has held that a defendant’s failure to show remorse or a penitent spirit may properly be considered in determining sentences. (People v. Ward (1986), 113 Ill. 2d 516, 529, 499 N.E.2d 422.) These factors may be evaluated in light of all other relevant factors. People v. Ralon (1991), 211 Ill. App. 3d 927, 960, 570 N.E.2d 742.

Defendants next contend that the sentences imposed are excessive. Absent an abuse of discretion, a sentence will not be altered on review. (People v. La Pointe (1982), 88 Ill. 2d 482, 431 N.E.2d 344.) It is not our function to serve as a sentencing court. (People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.) The record reveals that the sentencing judge carefully considered all arguments in mitigation and aggravation, and the presentencing investigation reports, including defendants’ prior criminal records.

In December 1984, Thompson was convicted of strong arm robbery when he robbed an 84-year-old woman and a 64-year-old woman; he received 30 months’ probation. While on probation, in October 1986, Thompson was convicted of attempted robbery; he received 30 months’ probation once again. One month later, he committed the armed robbery at issue here.

In February 1982, Jordan was convicted of robbery; he received 60 days’ imprisonment and four years’ probation. While on probation, in August 1985, Jordan was convicted of theft; he was sentenced to two years’ imprisonment. Five months after being paroled, Jordan committed the armed robbery at issue here.

We find no abuse of discretion in the 20-year and 18-year sentences imposed on Thompson and Jordan, respectively. See Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8—l(aX3) (armed robbery is a Class X felony punishable from 6 to 30 years in prison).

Jordan asserted at the sentencing hearing that he “would have took [sic] six years a long time ago” if he had actually committed the crime. However, there is no support in the record that any plea offer was previously made. (Cf People v. Dennis (1975), 28 Ill. App. 3d 74, 328 N.E.2d 135 (trial court participated in plea negotiations where defendant was offered two to six years; after trial, court sentenced defendant to 40 to 80 years in prison; appellate court reduced sentence to 18 years).) Defendant has failed to make an affirmative showing in the record that the greater sentence was imposed, e.g., as punishment for exercising his right to trial. See People v. Moffitt (1985), 138 Ill. App. 3d 106, 485 N.E.2d 513; People v. Greene, 102 Ill. App. 3d 933, 430 N.E.2d 23.

For the foregoing reasons, the judgments of the circuit court of Cook County are affirmed.

Judgments affirmed.

LORENZ, P.J., and MURRAY, J., concur.


author: JUSTICE MURRAY

text:
      In re ESTATE OF MAUDE LACKEY HALL, Deceased (Cornel Benford et al., Plaintiffs-Appellees, v. Creamolia Dunlap et al., Defendants-Appellees (Georgia Counts Tucker et al., Intervenors-Appellants)).
    First District (5th Division)
    No. 1—90—2781
    Opinion filed January 17, 1992.
    Rehearing denied March 4, 1992.

      Robert S. Minetz, of Cowan & Minetz, Chartered, of Chicago, for appellants Georgia Counts Tucker, Louise Benson, Cleophus Counts, Annie Counts McGowan, Celure Counts Robinson, Foster Counts, and Waverly Counts.
    Morton John Barnard, of Gottlieb & Schwartz, of Chicago, for Creamolia Dunlap.
   JUSTICE MURRAY

delivered the opinion of the court:

Georgia Counts Tucker, Louise Benson, Cleophus Counts, Annie Counts McGowan, Celure Counts Robinson, Foster Counts and Waverly Counts appeal from orders entered by the trial court on July 26, 1990, and August 22, 1990. The July 26, 1990, order denied the appellants leave to file an appearance in the estate of Maude Lackey Hall, deceased. The August 22, 1990, order sustained a motion of Creamolia Dunlap, individually, and as executor of the will of Maude Lackey Hall, to strike and dismiss the amended petition of Georgia Counts Tucker for leave to intervene and a petition for leave to intervene filed by Torsey Counts. A confusion exists as to whether the appellants are intervenors or petitioners. Since there are two sets of counts involved in the case, we shall refer to the appellants, whether they be intervenors or petitioners (specifically, Georgia Counts Tucker, Louise Benson, Cleophus Counts, Annie Counts McGowan, Celure Counts Robinson, Foster Counts and Waverly Counts), as Georgia Counts Tucker et al.

The relevant facts of this case are as follows.

Maude Lackey Hall died on June 1, 1988. On the date of Ms. Hall’s death, Creamolia Dunlap (Dunlap) filed a petition for probate of will and for letters testamentary for the estate of Maude Lackey Hall. In her petition Dunlap requested that a will dated November 15, 1987, be admitted to probate and letters testamentary be issued. The estimated value of the estate was $405,000. Dunlap had attached as exhibit A a list of the names and addresses of Mildred Spencer, Newlyn Benford and Cornel Benford as heirs and Ms. Dunlap as legatee. The will gave decedent’s entire estate to Dunlap and appointed her as executor.

The will was approved on June 9, 1988, and letters of office issued to Creamolia Dunlap as independent executor. On July 19, 1988, Cornel Benford filed a petition to require formal proof of will. In his petition, Mr. Benford alleged that the deceased executed two wills, one dated May 31,1984, and one dated November 15,1987.

On August 4, 1988, the trial court entered an order declaring that the only heirs of decedent were “Unknown Heirs.” On August 9, 16, and 23, 1988, notice to “Unknown Heirs” was published in the Chicago Daily Law Bulletin, advising them of the time limitation for requiring formal proof of will and that a petition to contest the will could be filed within six months after June 9,1988.

On October 20, 1988, the trial court confirmed its order admitting the will of November 15,1987, to probate.

On November 14, 1988, Cornel Benford filed a supplementary proceeding contesting the validity of the November 15, 1987, will. Cornel Benford alleged that the deceased was under the undue influence of Creamolia Dunlap in that: (1) the deceased was of unsound mind and memory and depended upon Dunlap; (2) that Dunlap was in a confidential relationship to the deceased; and (3) that Dunlap procured the services of her attorney and arranged for witnesses to the will. Georgia Counts Tucker et al. were not given notice of this proceeding. On November 15, 1988, the trial court amended its order declaring heir-ship, stating, “[AJfter considering evidence concerning heirship, the court declares that the following are the only heirs of Maude Lackey Hall, deceased: ‘Cornel Benford, [Address], Tanya Benford, [Address], Grady Benford, [Address], Myron Benford, [Address],’ and other ‘Unknown heirs.’ ” The order entered August 4, 1988, declaring heirship was vacated. The amended order was based on Cornel Benford’s affidavit of heirship.

On December 6, 1988, Mildred Neal Spencer filed a petition to contest the will, with a jury demand. Notice of the filing was given to counsel for the executor and counsel for the Benfords. Summons were served on Torsey Counts and Essie Counts Wilson. Georgia Counts Tucker et al. were alleged to be “Address Unknown.”

On December 21, 1988, an amended affidavit of heirship signed by Mildred Spencer was filed. Paragraph four of the amended affidavit states:

“(4) Pearl Dewalt Counts had eleven children: Cleophus Counts, Celia [Celure] Marion Robinson, Anna Pearl McGowan, Foster Counts, Louise Benson, Torsey Counts, Georgia Tucker, Tarrant Counts, Waverly Counts, Essie Wilson and John Edward Counts. John Edward Counts and Tarrant Counts died before the decedent. I do not know whether or not either of them left a child bom to or adopted by him. The other children of Pearl are living.”

An amended order was entered on December 21, 1988, declaring the following to be heirs of the decedent: Gomel Benford, Tanya Ben-ford, Myron Benford, Mildred Spencer, Adam Neal, Jr., Richard Neal, Cleophus Counts, Celia Marion Robinson, Anna Pearl McGowan, Foster Counts, Louise Benson, Torsey Counts, Georgia Tucker, Waverly Counts, Essie Wilson, and “Unknown Heirs,” if any, living. All prior orders declaring heirship were vacated.

On December 22, 1988, a petition to admit will as to omitted or unnotified persons was filed. Georgia Counts Tucker et al. were described in the latter petition as heirs with addresses unknown; the addresses of Torsey Counts and Essie Wilson were stated. On January 24, 1989, a certificate of publication was filed. The publication notices were filed in the Chicago Daily Law Bulletin. It is alleged that this publication is the only notice that Georgia Counts Tucker et al. received of the probate of Maude Lackey Hall’s estate. This notice is at the center of the case and appeal.

On March 3, 1989, the two will contests were consolidated. On March 1, 1990, the inventory was filed. It stated that the appraised value of the decedent’s real estate was $100,000 and the total value of the estate was $567,495.53.

The trial of the will contest cases commenced on June 12, 1990. A jury was selected and opening arguments were made. The jury heard the testimony of Dr. Robert Rose, a geriatric psychiatrist. After the testimony of a single witness, counsel advised the court that the will contest cases had been settled. Counsel advised the court that the terms of the settlement were as follows:

(1) Ms. Creamolia Dunlap would receive the real estate at 6751 South Crandon, Chicago, Illinois.
(2) Mildred Spencer and the Benfords, as a group, would each receive $135,000.
(3) After expenses and conveyance of the real estate, the balance of the estate would be divided in thirds equally among Ms. Dunlap, Ms. Spencer and the Benfords.
(4) Case to be dismissed with prejudice.

As of the date of this appeal, no dismissal order of the will contests has ever been entered and a division of the proceeds of the estate has never been made.

Georgia Counts Tucker et al. were not parties to the settlement. On July 19, 1990, Georgia Counts Tucker et al. filed their motion for leave to file an appearance. The motion for leave to appear was denied without prejudice on July 26,1990.

On August 2, 1990, Torsey Counts and Essie Counts Wilson also filed a petition for leave to intervene. On August 3, 1990, Georgia Counts Tucker et al. filed their petition to intervene. On August 8, 1990, the executor filed objections to the petitions to intervene and moved to strike and dismiss the petitions. Georgia Counts Tucker et al. filed an amended petition to intervene on August 20,1990.

On August 22, 1990, the trial court entered an order striking and dismissing the amended petition of Georgia Counts Tucker et al., and of Torsey Counts and Essie Wilson.

Georgia Counts Tucker et al. argue the following on appeal:

(1) That the failure of Mildred Spencer and the Benfords to serve them with summons in their will contest proceedings as required by statute mandates the granting of their petition to intervene and the vacation of the settlement agreement;

(2) Service by publication violated their constitutional rights;

(3) Service by publication violated Illinois law;

(4) Their petitions to intervene should have been granted; and

(5) Georgia Counts Tucker et al. should have been granted discovery before any ruling on their intervention petition had been made.

The first issue in this case is a procedural one, i.e., whether the notice by publication to Georgia Counts Tucker et al. complied with the provisions of the Illinois Probate Act of 1975 (Ill. Rev. Stat. 1989, ch. 110½, par. 1 — 1 et seq.).

Section 6 — 10 of the Probate Act provides in pertinent part:

“Not more than 14 days after entry of an order admitting or denying admission of a will to probate or appointing a representative, the representative or, if none, the petitioner must mail a copy of the petition to admit the will or for letters and a copy of the order showing the date of the entry to each of the testator’s heirs and legatees whose names and post office addresses are stated in the petition. If the name or post office address of any heir or legatee is not stated in the petition, the representative or, if none, the petitioner must publish a notice once a week for 3 successive weeks, the first publication to be not more than 14 days after entry of the order, describing the order and the date of entry. The notice shall be published in a newspaper published in the county where the order was entered ***. *** The information mailed or published under this Section must include an explanation, in form prescribed by rule of the Supreme Court of this State, of the rights of heirs and legatees to require formal proof of will under Section 6 — 21 and to contest the admission or denial of admission of the will to probate under Section 8 — 1 or 8 — 2. The petitioner or representative must file proof of mailing and publication, if publication is required with the clerk of the court.” (Ill. Rev. Stat. 1989, ch. 110½, par. 6-10.)

Section 6 — 11 of the Probate Act provides:

“Omitted or unnotified heir or legatee, (a) If it appears after entry of an order admitting or denying admission of a will to probate that an heir or legatee was omitted from the petition to admit the will to probate or, if included in the petition, that notice to him was not mailed or published as provided in Section 6 — 10 or 6 — 20, whichever is applicable, and that no waiver of notice was filed by the omitted or unnotified heir or legatee, an amended petition shall be filed under Section 6 — 2 or 6 — 20 which shall include the omitted or unnotified heir or legatee.” Ill. Rev. Stat. 1989, ch. 110½, par. 6 — 11(a).

The Illinois Code of Civil Procedure applies to all proceedings including probate proceedings. (Ill. Rev. Stat. 1989, ch. 110, par. 1 — 108; In re Estate of Ariola (1979), 69 Ill. App. 3d 158, 386 N.E.2d 862.) Georgia Counts Tucker et al. correctly state that in order to effectuate service by publication, the Illinois Code of Civil Procedure, section 2 — 206, requires the filing of:

“[A]n affidavit showing that the defendant resides or has gone out of this State, or on due inquiry cannot be found, or is concealed within this State, so that process cannot be served upon him or her, and stating the place of residence of the defendant, if known, or that upon diligent inquiry his or her place of residence cannot be ascertained ***.” (Ill. Rev. Stat. 1989, ch. 110, par. 2-206.)

No affidavit was filed in this case. However, section 1 — 108(b) of the Code of Civil Procedure also provides:

“In proceedings in which the procedure is regulated by statutes other than those contained in this Act, such other statutes control to the extent to which they regulate procedure but Article II of this Act applies to matters of procedure not regulated by such other statutes.” Ill. Rev. Stat. 1989, ch. 110, par. 1— 108(b).

Section 6 — 10 of the Probate Act specifies the procedure required with regard to notice of the admission of a will to probate. Section 6 — 10 requires the petitioner, not the clerk of the court as required in 2 — 206 of the Code of Civil Procedure, to mail a copy of the petition to each of the testator’s heirs and legatees and to publish notice if “the address of any heir or legatee is not stated in the petition.” Nothing in section 6 — 10 requires the filing of an affidavit.

On December 22, 1988, a petition to admit the will to probate as to the omitted or unnotified heirs, under section 6 — 11, was filed by Dunlap. Notice was mailed to the Benfords, Torsey Counts and Essie Wilson at their respective addresses as stated in the petition. Since the addresses of Georgia Counts Tucker et al. and unknown heirs were not stated in the petition to admit the will, notice was published to them. Notice was published as to them on January 4, 11, and 18, 1989. The notice advised them of their right to demand formal proof of the will within 42 days after the filing of the petition to admit the will as to each of them and of their rights under section 8 — 1 of the Probate Act. Pursuant to section 6 — 11, the notice by publication to Georgia Counts Tucker et al. was proper regarding the admission of Ms. Hall’s will to probate. The date of the publication notice also began the tolling of the six-month time period for Georgia Counts Tucker et al. to institute their own will contest action.

Georgia Counts Tucker et al. argue that the service by publication violated their constitutional rights. We disagree. The trial court found and we agree that the executor complied with the notice requirements of sections 6 — 10 and 6 — 11 of the Probate Act for the admission of the will to probate. Georgia Counts Tucker et al. also argue that the service by publication violated Illinois law. Georgia Counts Tucker et al. argue that section 2 — 206 of the Illinois Code of Civil Procedure applies to the Probate Act. For the reasons stated above, we find that section 2 — 206 of the Illinois Code of Civil Procedure does not apply to sections 6 — 10 and 6 — 11 of the Probate Act.

Georgia Counts Tucker et al. argue that the addresses of the intervenors were readily obtainable by the executor. They maintain that a diligent inquiry would have revealed that Torsey Counts knew the addresses of her brothers and sisters (Georgia Counts Tucker et al.). The record discloses that on December 21, 1988, counsel for Creamolia Dunlap sent a letter to Torsey Counts giving notice of the admission of Ms. Hall’s will to probate. The letter also requested that if Torsey Counts had the address of any person listed as an heir on the petition, she would send that information to counsel.

Georgia Counts Tucker et al. point out that all of the appellants except Louise Benson and Annie McGowan have lived at their addresses since at least June 1, 1988, and that Cleophus Counts has lived in his home in Queens, New York, since 1957. However, nothing in the record, including the respective affidavits of Georgia Counts Tucker et al., reveals any information which would impute that knowledge to the executor, Creamolia Dunlap. Accordingly, for all the reasons set forth above we find that the trial court properly found that notice of the admission of Ms. Hall’s will to probate was proper pursuant to sections 6 — 10 and 6 — 11 of the Probate Act.

Cornel Benford, Mildred Spencer and Creamolia Dunlap appear to argue that because Dunlap complied with the notice requirements regarding the admission of a will to probate, the service requirements concerning a will contest have been met. We disagree, and for the following reasons, we reverse and remand the matter to the trial court for further proceedings.

Section 8 — 1 of the Probate Act provides in relevant part:

“8 — 1. Contest of admission of will to probate, (a) Within 6 months after the admission to probate of a domestic will in accordance with the provisions of Section 6 — 4, *** any interested person may file a petition in the proceeding for the administration of the testator’s estate or, if no letters were issued, in the court in which the will was admitted to probate, to contest the validity of the will. The representative, if any, and all heirs and legatees of the testator must be made parties to the proceeding and the petition must state, if known, their names and post office addresses and whether any of them is a minor or disabled person. ***
(b) Upon [the] filing of the petition, process shall be issued, served and returned as in other civil cases.” (Ill. Rev. Stat. 1989, ch. 110½, par. 8 — 1.)

Thus, in order to effectuate service in a will contest action, the rules set forth in the Illinois Code of Civil Procedure would apply. We note that this includes section 2 — 206, which specifies the requirements for service by publication. This includes the filing of:

“[A]n affidavit showing that the defendant resides or has gone out of this State, or on due inquiry cannot be found, or is concealed within this State, so that process cannot be served upon him or her, and stating the place of residence of the defendant, if known, or that upon diligent inquiry his or her place of residence cannot be ascertained ***.” Ill. Rev. Stat. 1989, ch. 110, par. 2-206.

However, in the present case we need not address the issue of whether the type of service was appropriate because there was no notice of any type given to Georgia Counts Tucker et al. of either the Benford will contest or the Spencer will contest.

The record discloses the following information regarding service in the respective will contest actions. Cornel Benford first filed a will contest on November 14, 1988. The attached service list included the following names: Tanya Benford, Grady Benford, Myron Benford, Mildred Spencer, and Creamolia Dunlap. On January 20, 1989, Cornel Benford filed an amended complaint listing Louise Benson, Cleophus Counts, Foster Counts, Torsey Counts, Waverly Counts, Anna Pearl McGowan, Celia (Celure) Marion Robinson, Georgia Tucker, Essie Wilson and other “Unknown Heirs” as persons who are or may be heirs. Notice of filing was sent to counsel for Creamolia Dunlap and to counsel for Mildred Spencer. On February 23, 1989, Cornel Benford, Grady Benford, Myron Benford and Tanya Benford filed their second amended complaint, listing Louise Benson, Cleophus Counts, Foster Counts, Torsey Counts, Waverly Counts, Anna Pearl McGowan, Celia (Celure) Marion Robinson, Georgia Tucker, Essie Wilson, Adam Neal, Jr., Richard Neal and other “Unknown Heirs” as persons who are or may be heirs. The following names were listed on the attached service list: James Gildea (counsel for Mildred Spencer), Morton John Barnard (counsel for Creamolia Dunlap), Torsey Counts, Adam Neal, Jr., Richard Neal and Essie Counts Wilson.

On December 6, 1988, Mildred Spencer filed a will contest. The will contest listed the following persons as persons who either are or claim to be heirs of the decedent: Cornel Benford, Grady Benford, Myron Benford, Tanya Benford, Louise Benson, Georgia Counts Tucker, Cleophus Counts, Foster Counts, Torsey Counts, Waverly Counts, Anna Pearl McGowan, Celia Marion Robinson, Essie Counts Wilson. The service list attached to her petition indicated that notice was sent to Lester Barclay (attorney for the Benfords), Morton John Barnard (counsel for Creamolia Dunlap), Torsey Counts, and Essie Counts Wilson. Summons issued on January 13, 1989, to Torsey Counts. Summons issued to Essie Counts Wilson on December 12, 1988. On January 20, 1989, Mildred Spencer filed her first amended petition to contest will; she listed Georgia Counts Tucker et al. as persons who are or claim to be heirs of the decedent. The service list included the following: Lester Barclay, Morton John Barnard, Torsey Counts, Adam Neal, Jr., Richard Neal, and Essie Counts Wilson.

Section 8 — 1 of the Probate Act requires the joinder of all heirs of the decedent as parties to the proceeding and thus makes them necessary parties whose presence is required to enable the court to make a complete decree binding on all who may be interested in the subject matter of the litigation. (Forys v. Bartnicki (1982), 107 Ill. App. 3d 396, 399, 437 N.E.2d 706.) As their respective petitions disclosed, both Cornel Benford and Mildred Spencer were aware of the fact that Georgia Counts Tucker et al. were heirs of Maude Lackey Hall. Both Cornel Benford and Mildred Spencer had an obligation to serve Georgia Counts Tucker et al. with notice of their respective will contests pursuant to the Code of Civil Procedure; however, neither Cornel Benford nor Mildred Spencer gave notice of any type to Georgia Counts Tucker et al. of their respective pending will contest actions.

Dunlap argues that Georgia Counts Tucker et al. are in the same position as were the noncontesting heirs in Forys v. Bartnicki (1982), 107 Ill. App. 3d 396, 437 N.E.2d 706, where two heirs had timely filed a will contest. In Forys after a judgment had been entered setting aside the will, but while a post-trial motion was pending, the parties agreed to a settlement and plaintiffs filed a motion to dismiss the proceedings, stating that the suit to set aside the will had been settled. The dismissal was agreed to by the executor and beneficiary under the will, but was not agreed to by the noncontesting heirs, who had been joined as parties defendant but had not joined as parties plaintiffs or had instituted any action to contest the will within the period provided by section 8 — 1 of the Probate Act. The appellate court held that the noncontesting heirs, by failing to assert their own right to contest the will, had forfeited the right to control the cause instituted by the plaintiffs.

Although we agree with the reasoning in Forys, we find distinguishing facts in the present case. In Forys the noncontesting heirs were named as parties-defendants in both will contest proceedings as required by statute, and each was served with summons. (Forys, 107 Ill. App. 3d at 398.) The noncontesting heirs in Forys chose not to appear in the will contest actions, whereas in the present case Georgia Counts Tucker et al. were never served with the required notice of the will contest actions. Georgia Counts Tucker et al. did not choose not to appear in a will contest action wherein they had been served with notice; rather, they never appeared in an action for which they had never received the required notice of the proceedings.

Georgia Counts Tucker et al. raise the issue that the petitions to intervene should not have been considered untimely by the trial court. We agree. Georgia Counts Tucker et al. were necessary parties to the will contest actions filed by Cornel Benford and Mildred Spencer. (Ill. Rev. Stat. 1989, ch. 110½, par. 8 — 1.) Benford and Spencer failed to give the required notice and should not be allowed to profit from their failure to act.

On July 26, 1990, the trial court denied the motion of Georgia Counts Tucker et al. on the basis that no will contest was filed on behalf of Georgia Counts Tucker et al. within the six-month time period and that Georgia Counts Tucker et al. “received what appears to be proper notice under the Probate Act.”

On August 22, 1990, a hearing was held on the petition to intervene of Georgia Counts Tucker et al. Georgia Counts Tucker et al. maintained that they never received proper notice of the admission of the will to probate or of the will contest actions. Counsel for Creamolia Dunlap argued that the parties were properly served with notice pursuant to section 6 — 11 of the Probate Act and that whether Georgia Counts Tucker et al. were served with notice under section 8 — 1 was irrelevant due to the fact that the will contest actions had been settled. As stated earlier in this opinion, we find that the notice pursuant to sections 6 — 10 and 6 — 11 of the Probate Act was proper. However, no notice was given to Georgia Counts Tucker et al. of the will contest actions. The trial judge did not consider the separate notice provisions under the two sections of the Probate Act.

The facts of the case disclose that the will contest actions were settled after trial had commenced. A jury had been impaneled and the testimony of one witness was heard. The single witness testified that he did not feel that Maude Lackey Hall was competent to make a will on November 15, 1987. Before the testimony of any other witnesses, the parties settled the will contests. There is no evidence of any attempt of service in either will contest action. Mildred Spencer, the Benfords and Creamolia Dunlap maintain that since Georgia Counts Tucker et al. appeared too late, they should not be allowed to take part in the cause of action. If Georgia Counts Tucker et al. had been served summons in the will contest actions and then failed to appear, Spencer, the Benfords and Dunlap would be correct; however, this court cannot reward these parties’ failure to even attempt notice by upholding the settlement. On remand we direct the trial court to allow the petition to intervene of Georgia Counts Tucker et al. and to vacate the settlement agreement.

For the reasons set forth above, we affirm the trial court’s finding that notice was proper under sections 6 — 10 and 6 — 11 of the Probate Act. We reverse the decision of the trial court denying the petition to intervene of Georgia Counts Tucker et al. and remand for further proceedings. We direct the trial court to allow the petition to intervene of Georgia Counts Tucker et al. and to vacate the settlement agreement. In light of our holding above, we need not address appellant’s argument regarding discovery.

Judgment affirmed in part and reversed and remanded in part with directions.

LORENZ and GORDON, JJ., concur.