author: JUSTICE McNAMARA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TONY HARRIS, Defendant-Appellant.
    First District (6th Division)
    No. 1—88—3002
    Opinion filed March 22, 1991.
    Rehearing denied April 23, 1991.

      Randolph N. Stone, Public Defender, of Chicago (Callie L. Baird, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and Marie Czech, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McNAMARA

delivered the opinion of the court:

Following a bench trial, defendant, Tony Harris, was convicted of the murder of Mybola Feazell (Spanky) at 534 West Division Street in the Cabrini-Green housing project and sentenced to a term of 30 years. On appeal to this court, defendant maintains that: (1) the trial court erred in granting the State’s motion in limine based upon the attorney-client privilege; (2) defendant was not proved guilty beyond a reasonable doubt; and (3) defendant’s sentence was excessive.

The State filed a pretrial motion in limine to restrict evidence of an alleged prior inconsistent statement by Kirby Higgs, one of the State’s eyewitnesses. After unsuccessful attempts to locate Higgs, defendant’s public defender apparently asked public defender Karen Szpajer, who represented Higgs in an unrelated juvenile court matter, to tell Higgs to call him. When she relayed this message to Higgs, he told Szpajer that he could not identify anyone in this case and that he did not want to talk about it. The State maintained that under the attorney-client privilege, neither Higgs nor Szpajer could testify as to this conversation. At the hearing on the motion, Higgs stated that “he did not want to reveal the conversation he had with Karen Szpajer, the public defender, about this case now on trial.” The trial court granted the State’s motion, finding that the attorney-client privilege precluded testimony about the conversations between Higgs and Szpajer.

The facts regarding the murder are as follows. Officer Alberto Contiveros testified that when he arrived at the scene of the shooting at about 3:50 a.m. on July 11, 1987, he found the deceased’s body lying on the lawn about 10 to 20 feet from the northwest corner of the 534 W. Division building. He described the area as not well lighted, the only light coming from the streetlights. After talking to some of the approximately 30 people on the scene, he received two descriptions of persons who may have been involved; both were black males, one wearing a red shirt, the other, a yellow shirt.

Officer Daniel Kowalski, who arrived soon thereafter, testified that there were lights in the hallways and floodlights on the corner of the building. He described the lighting where the body was found as “poor at best.” He spoke with four persons at the scene and then began to look for five or six possible suspects.

The State presented the testimony of two eyewitnesses: Kirby Higgs and Phyllis Haley. Higgs testified that on the evening of the shooting, he went to a party at 624 W. Division with Spanky and several others. Higgs and Spanky left the party together at about 3:30 a.m. and walked to 534 W. Division, where Higgs lived. Both Higgs and Spanky belonged to the same gang, which “controlled” the 534 W. Division building. When Higgs saw Jermaine Adams, a rival gang member, standing by the front doorway “just looking around,” Higgs decided to enter through a different entrance. When Higgs and Spanky approached the rear door, they saw defendant standing by the elevator, dressed in a white shirt and black shorts. Higgs told Spanky that he did not know who defendant was. Higgs went to his apartment on the fifth floor, while Spanky waited near the rear entrance for his friend, “Little Man,” to come down. Higgs found his apartment door locked and went to his uncle’s third-floor apartment. While on the third floor, he heard a shot and looked through the metal grating of the gallery down to the ground. He saw Spanky running toward the street with defendant chasing him. He saw defendant stand over Spanky, who had fallen, and shoot him four times. Although Higgs only saw defendant’s back prior to and during the shooting, Higgs saw defendant’s face when defendant turned and looked back before he ran away. Higgs stated that he had seen defendant 10 to 12 times in the prior two months and knew defendant belonged to a rival gang. Higgs, however, did not call the police until several days later. He admitted that at a codefendant’s trial, he testified that he did not know the shooter; that he first saw the shooter when he fired the shots; and that he never identified the shooter in a photo or lineup. He also acknowledged that the State dismissed a pending aggravated battery charge against him prior to this trial.

Phyllis Haley testified that, at about 3 a.m. on the morning of the incident, she entered the 534 W. Division building to go to her mother’s apartment. As she entered, she saw defendant and another man standing near the mailroom. She saw a gun in defendant’s waistband. When she left the building 15 or 20 minutes later, she heard Spanky yell for “Little Man” to come down, and she noticed that the two men were not by the mailroom, but were on the other side of the building. She heard someone yell, “Spanky, he has a gun,” then heard a shot. When she moved closer, she saw Spanky run a short distance and fall and then saw the shooter stand over Spanky with a gun and heard four shots. Haley then ran after defendant. When Haley’s brother called out to her, defendant turned around and looked directly at Haley, at which time she got a “good look” at him from about 10 to 12 feet. Her brother tackled her before she caught defendant. She did not contact the police until two days later because she feared for her life. On July 31, 1987, she identified defendant as the shooter from several photographs at the police station, and on the next day she identified defendant at a police lineup. She also identified defendant at trial. She testified that she had known defendant for about 12 years and had been his tutor and Sunday school teacher at Fourth Presbyterian Church in 1977 and 1978. Over the past 10 years, she saw defendant two or three times a month and saw him the day before the shooting at a playground adjacent to the building.

Haley testified that in an April 1988 telephone conversation she told Tom Reynolds, defendant’s attorney, that she was not sure if defendant was the shooter because she could not see his face. She also told Reynolds that when the police showed her photos, she told them that she could not identify the shooter because she was not that close.

Officer Bloomstrand testified that he spoke with Higgs two days after the murder. According to Bloomstrand, Higgs never stated that defendant shot the deceased, although Higgs told him that “Tony Sconey” did it. Higgs told Bloomstrand that he had seen defendant 9 or 10 times before the shooting and that he knew defendant belonged to a rival gang. Bloomstrand did not recall whether Haley told him that she ran after the shooter, although neither of his case reports indicated that she ran after him, that the shooter turned around and looked at her or that she taught defendant at church. Bloomstrand stated, however, that Haley told him that she saw defendant shoot the deceased. She also identified a photograph of defendant.

Officer Carl Silvestrini testified that Haley positively identified defendant at a lineup conducted in the police station.

It was stipulated that Spanky was shot five times and died of multiple gunshot wounds.

Cora Harris, defendant’s mother, testified for defendant that she is a Baptist and that defendant never attended the Fourth Presbyterian Church. She also stated that defendant lived with her at the time of the shooting, but was staying at her other son’s home several blocks away.

Patrick Gleason, an attorney and chief of the Cook County Public Defender’s Murder Task Force, testified for defendant that with Haley’s permission he participated in the April 1988 telephone conversation between Haley and Reynolds. He testified that although Haley was cooperative, Reynolds spoke to her in an angry tone. According to Gleason, Haley told them that she could not see the shooter’s face while he shot because it was too dark and she was too far away. Haley also told them that when the police showed her a group photo and when she viewed a lineup at the police station, she could not identify defendant as the shooter. Haley also said that the deceased’s family had threatened her and that the police told her she would be in trouble if she “covered up for these punks.”

The trial judge found defendant guilty of murder. In aggravation, the State requested an extended 60-year term because of the brutal and heinous nature of the crime. In mitigation, defendant requested leniency because he had no record, was 18 at the time of the incident, had family to support and had begun to work on his GED while in jail. The court sentenced him to a term of 30 years.

Initially, we consider defendant’s argument that the trial court erred in granting the State’s pretrial motion in limine which precluded defendant under the attorney-client privilege from questioning Higgs or Szpajer regarding their alleged conversation about this case. Defendant maintains that Higgs’ statement was not protected by the privilege and, even if the privilege applied, Higgs waived it. In addition, defendant argues that the State lacked standing to assert the privilege.

We first consider the purpose of the attorney-client privilege, which exists so that a client may freely consult with counsel without fear that the information will be disclosed by the attorney. (People v. Duarte (1979), 79 Ill. App. 3d 110, 398 N.E.2d 332.) The party asserting the privilege bears the burden of establishing all elements of the privilege, which exists when: (1) legal advice is sought; (2) from a professional legal advisor in his capacity as such; (3) the communication relates to that purpose; (4) the communication is made in confidence; (5) the communication is made by the client; (6) the communication is permanently protected; (7) from disclosure by the client or by the attorney; (8) except when the client waives the protection. People v. Williams (1983), 97 Ill. 2d 252, 454 N.E.2d 220.

Our review of the record leads us to conclude that the privilege does not apply to the brief colloquy between Higgs and Szpajer about this case. Subsequent to Higgs’ April 1988 arrest, Szpajer was appointed to represent him in juvenile court. When Szpajer met with Higgs, presumably to discuss his pending case, she told Higgs that defendant’s attorneys were looking for him. Higgs told her that he coúld not identify anyone and that he did not want to talk about it. Because Szpajer was appointed to represent Higgs in an unrelated criminal matter, his statements about this case are not protected by the privilege. Further, there is no evidence that Higgs sought legal advice from Szpajer regarding his identification of a suspect in this shooting.

Moreover, protection under the privilege extends only to confidential communications and not to matters intended to be disclosed by the attorney. (People v. Adams (1983), 116 Ill. App. 3d 315, 451 N.E.2d 1351.) The mere passing of information between client and attorney is not sufficient to invoke the privilege. (McDonald’s Corp. v. Levine (1982), 108 Ill. App. 3d 732, 439 N.E.2d 475.) Here, after defense attorneys were unsuccessful in contacting Higgs, they sought Szpajer’s assistance, asking her to tell Higgs to telephone them. When Higgs told Szpajer that he could not identify anyone and that he did not want to talk to defendant’s attorneys, Higgs undoubtedly expected Szpajer to relay this message to defendant’s attorneys. As such, Higgs’ statements were intended for disclosure and were not confidential. For the foregoing reasons, these communications do not fall within the privilege and the motion in limine was improperly granted. Because we so conclude, we need not consider defendant’s standing and waiver arguments.

Although the trial court erred in granting the State’s motion in limine, a review of the excluded testimony and the record indicates that the error was harmless beyond a reasonable doubt. We, therefore, need not decide, as defendant suggests, whether the evidentiary privilege must yield to defendant’s right to cross-examine and call witnesses on his behalf. In People v. Wilkerson (1981), 87 Ill. 2d 151, 429 N.E.2d 526, our supreme court determined that error can be harmless if other properly admitted evidence overwhelmingly supports defendant’s guilt or if the excluded evidence is cumulative of other properly admitted evidence.

Our examination of the other evidence here leads us to conclude that there was overwhelming evidence to support defendant’s guilt. Haley testified that she saw defendant with a gun in the vicinity about 20 minutes prior to the shooting, and that after hearing the first shot, she repositioned herself and observed defendant shoot deceased four times. Most significantly, she saw defendant from about 10 to 12 feet when he turned around and looked directly at her before fleeing the scene. (People v. Pryor (1989), 181 Ill. App. 3d 865, 537 N.E.2d 1141 (improperly admitted evidence was harmless error where an eyewitness saw defendant’s face twice, once face to face).) Given Haley’s acquaintance and familiarity with defendant and her repeated opportunities to observe him prior to, during and after the incident, her testimony alone overwhelmingly supports defendant’s guilt. Nor would the excluded testimony suggesting Higgs’ inability to identify the shooter have contradicted the strength of Haley’s identification.

In addition, the excluded testimony here is cumulative. If permitted to cross-examine Higgs about the conversation at issue, defense counsel would likely have elicited evidence that in April 1988, several months before trial began, Higgs told his attorney that he was unable to identify anyone in this case. Even without this testimony, defendant established at trial that Higgs previously made several prior inconsistent statements regarding the identification at codefendant’s trial, and extensively cross-examined Higgs about these statements in order to impeach Higgs. (See People v. Rios (1986), 145 Ill. App. 3d 571, 495 N.E.2d 1103.) Although the timing of Higgs’ testimony at the codefendant’s trial might distinguish it somewhat from statements made to Szpajer, it is unlikely that the excluded statements would have made any difference in the outcome.

We also note that the trial court had ample evidence before it from which to assess Higgs’ credibility. The evidence established that Higgs and defendant were members of rival gangs; that Higgs did not speak to police until several days after the shooting; that he made several prior inconsistent statements; that he never gave a complete description of the shooter or identified the shooter in a lineup or photo; that the State dismissed an aggravated battery charge against him before he testified in this case; and that he had another action pending in juvenile court. We believe that defendant was afforded sufficient opportunity to establish Higgs’ lack of credibility even without the proffered impeachment evidence. Nor can we say that the excluded testimony could have reasonably affected the judgment. Therefore, we find that there was no prejudice to defendant sufficient to constitute reversible error.

Defendant next contends that the State failed to prove him guilty beyond a reasonable doubt because the testimony of Higgs and Haley was inconsistent and unbelievable. As we have already discussed, this argument is unpersuasive. A reviewing court may not substitute its judgment for that of the trier of fact on questions involving the weight of the evidence or the credibility of witnesses. Nor will we reverse a conviction unless the evidence is so unsatisfactory or improbable as to raise a reasonable doubt of defendant’s guilt. People v. Manion (1977), 67 Ill. 2d 564, 367 N.E.2d 1313.

The evidence in this case is not so improbable as to require a reversal of defendant’s conviction. Two witnesses positively identified defendant as the shooter. Haley saw defendant several times: when she first entered the building; after he fired the first shot; and when he turned and looked directly at her before he fled. Higgs also saw the shooter more than once. He saw defendant’s face when he entered the building. Then, after hearing the first shot, he looked down from the third-floor gallery of the budding and saw defendant chase Spanky and then shoot Spanky four times after Spanky fell. Higgs, like Haley, saw defendant’s face when he turned and looked back before fleeing. Although defendant maintains that the lighting and the distance precluded both Haley and Higgs from getting a good look at the shooter, the first shot likely alerted the witnesses, heightened their attention during the incident and made their identifications more credible. (See People v. Jones (1983), 114 Ill. App. 3d 576, 449 N.E.2d 547.) Additionally, the testimony of Haley and Higgs corroborated the sequence and timing of the occurrence. Defendant was proved guilty of murder beyond a reasonable doubt.

Finally, we consider defendant’s argument that his 30-year sentence is excessive and that the court failed to consider his age and his rehabilitative potential. Absent an abuse of discretion, we will not substitute our judgment for that of the trial judge who observed defendant throughout the trial and sentencing proceedings. (People v. Wiley (1989), 185 Ill. App. 3d 1097, 541 N.E.2d 1345.) Moreover, a sentence alleged to be excessive, even though within the statutory limitations, will not be disturbed on appeal unless grossly disproportionate to the nature of the offense. (People v. Moore (1988), 178 Ill. App. 3d 531, 533 N.E.2d 463.) Defendant’s 30-year sentence is within the 20 to 60-year range of sentences imposed for murder. (Ill. Rev. Stat. 1987, ch. 38, par. 1005—8—1(a)(1)(a).) The court’s findings indicate that it properly considered defendant’s rehabilitative potential and age when imposing the sentence. Moreover, the court’s description of this as a “cold-blooded murder” supports its refusal to impose the minimum term. (People v. Ellis (1989), 187 Ill. App. 3d 295, 543 N.E.2d 196.) We thus find that the sentence is not grossly disproportionate to the offense and that the trial court acted within its discretion in sentencing defendant.

Accordingly, the judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.

RAKOWSKI, P.J., and LaPORTA, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARTIN MATHIS, Defendant-Appellant.
    First District (6th Division)
    No. 1—88—3648
    Opinion filed March 22, 1991.

      Randolph N. Stone, Public Defender, of Chicago (Ira Churgin, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and Marie Quinlivan Czech, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McNAMARA

delivered the opinion of the court:

Defendant, Martin Mathis, was charged with possession of a controlled substance with intent to deliver. After a trial without a jury, defendant was found guilty of the lesser included offense of possession of a controlled substance. The trial court sentenced defendant to two years’ probation and imposed a fine of $500. On appeal, defendant contends that the trial court improperly denied his motion to suppress the evidence.

Prior to trial, the court conducted a hearing on the motion to quash the arrest and suppress the evidence. Officer Homer Rapier of the Chicago police department was the only witness to testify at the hearing. Rapier’s partner, who did not testify, made the search that defendant here challenges.

Rapier testified that on the evening of September 10, 1987, he and his partner received a message that two men were attempting to rape a woman by dragging her into a building at 250 West 71st Street in Chicago. While responding to the message, the officers observed defendant and another man running from the building at that address. The officers stopped the men, and Rapier’s partner conducted a pat-down search of defendant. During the pat-down, the officer told Rapier that he felt a hard object on defendant’s person. The object was about the size of a golf ball. Defendant complied with Rapier's partner's order to remove the object from his pocket, which consisted of 15 small packets containing a white powdery substance. From his experience, Rapier believed the substance to be cocaine, and it was later determined that it was cocaine.

After his partner seized the object, Rapier held it and at that time it did not feel like a gun or a knife. When asked if the object was as big as a gun, Rapier stated: “I guess a small caliber could possibly be that size” and remarked, “they make miniatures now.” At the conclusion of the hearing, the trial court denied the motion to suppress the evidence. At trial, the State’s case consisted of the stipulated testimony that Rapier had given at the hearing.

The trial court’s denial of a motion to suppress will not be overturned by a reviewing court unless it is manifestly erroneous. (People v. Winters (1983), 97 Ill. 2d 151, 454 N.E.2d 299.) During an investigatory stop, police officers may, for their own protection, conduct a reasonable search for weapons when dealing with a person who may be armed and dangerous. (Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868.) The Terry pronouncement has come to be known as the “stop and frisk” rule, permitting a protective pat-down.

Under the circumstances here, the protective pat-down search was reasonable. The officers were responding to a call that a violent crime was occurring at a certain address. When the officers arrived at the scene, they observed defendant running from the building in question. A protective pat-down frisk was clearly in order.

The issue, therefore, becomes whether after the pat-down revealed an object on defendant’s person, the officers’ conduct was proper. More specifically, the issue is whether under the circumstances, a reasonably prudent officer would believe that the object which he ordered defendant to produce was a weapon which threatened the officer’s safety. Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868.

In the present case, we do not have the benefit of the testimony of the officer who conducted the pat-down search. Only Rapier testified, and the extent of his testimony was that his partner told him that he felt a hard object. No evidence was introduced that the officer felt threatened or that the object was a weapon. Indeed, the record reveals otherwise. It seems that if the officer believed during his frisk he had felt a weapon, he would not have ordered defendant to withdraw the object, but would have removed it himself. This conduct on the part of the officer indicates his belief that the object was not a weapon and is a proper factor for consideration for the court. People v. Galvin (1989), 127 Ill. 2d 153, 535 N.E.2d 837.

There is no hardfast rule that the police have the right to seize any hard object after a pat-down. The hardness of the object is a factor in determining the reasonableness of the officer’s belief that he is in danger, but it is only one factor. The police may only seize an object they reasonably believe might be a weapon. Here, there is no evidence that the officer believed the object was a weapon and that he seized it for that reason. Indeed, the officer permitted defendant to withdraw the object from his pocket, rather than retrieve it himself. There is evidence, moreover, that the object was about the size of a golf ball, and that the officer who testified did not believe that the object felt like a weapon. Under the totality of the circumstances, we hold that the finding of the trial court that the officer reasonably might have believed that the object was a weapon is manifestly erroneous. People v. Ricksy (1990), 206 Ill. App. 3d 302, 564 N.E.2d 256.

In support of its argument that the search was proper, the State cites People v. Day (1990), 202 Ill. App. 3d 536, 560 N.E.2d 482. Day is clearly distinguishable. There, the officer testified that during the frisk he noticed a small rectangular object in defendant’s pants pocket. The officer believed that the object could have been a razor blade wrapped in something. When the officer retrieved the object, he discovered it was a package containing cocaine, and this court upheld the propriety of the search. In the present case, however, there was no testimony that the officer believed the object in defendant’s pocket was a weapon.

Accordingly, the trial court’s order denying defendant’s motion to suppress the evidence is reversed. Since without the suppressed evidence there is apparently no evidence against defendant, the judgment of conviction is reversed without remand.

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

Judgment reversed.

RAKOWSKI, P.J., and LaPORTA, J., concur.


author: JUSTICE LaPORTA

text:
    GEORGE F. KNOWLES, Plaintiff-Appellant, v. MID-WEST AUTOMATION SYSTEMS, INC., et al., Defendants-Appellees.
    First District (6th Division)
    No. 1—89—1619
    Opinion filed March 15, 1991.

      Galliani & Doell, Ltd., of Chicago (William R. Galliani and Patrick F. Healy, of counsel), for appellant.
    Landau, Omahana & Kopka, Ltd., of Chicago (Byron L. Landau, Robert K. Scott, and Timothy M. Palumbo, of counsel), for appellees.
   JUSTICE LaPORTA

delivered the opinion of the court:

A complaint alleging work-related injuries sustained on defendants’ premises on June 13, 1986, was filed on June 7, 1988, captioned, “George E Knowles, plaintiff v. Mid-West Automation Systems Inc. and Mid-West Automation Enterprises, Inc., defendants.” Both defendants were served but neither appeared nor filed an answer, and a default judgment was entered against them on December 7,1988.

On January 5, 1989, the court granted defendants’ motion to vacate the order of default. Defendants then moved to dismiss the original complaint under section 2—619(5) of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—619(5)), on the ground that plaintiff had died November 12, 1987, prior to commencement of the suit. Defendants argued that a suit cannot be brought in the name of a dead person and that when filed the suit was barred by the statute of limitations. Following a hearing, the trial judge granted defendants’ motion to dismiss. Plaintiff appealed.

On appeal, plaintiff raises, as its sole issue, whether a complaint filed in the name of an injured employee pursuant to the Workers’ Compensation Act (Ill. Rev. Stat. 1985, ch. 48, par. 138.5(b)) should be dismissed under section 13—209 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 13—209) when the employee had died prior to the filing of the complaint. Section 5(b) of the Workers’ Compensation Act permits a subrogation action by the employer or employer’s insurer to recover from a third party responsible for the injuries the compensation paid to the employee by the employer or the employer’s insurer.

The complaint was filed on June 7, 1988, in the name of George Knowles as plaintiff by the employer’s insurer and not in the name of any representative, alleging that on June 13, 1986, Knowles was injured while he worked at defendants’ business as an independent contractor engineer. The complaint alleged he suffered severe and permanent injuries because of defendants’ negligence in the way it permitted furniture to be moved around the area where he was working at a drafting table. The complaint sought damages for his injuries, lost wages, medical expenses and loss of future earnings.

Defendants were served with summons and failed to appear or answer the complaint. On December 7, 1988, the trial court entered a default order and judgment against defendants and set the matter for prove up of damages on March 14, 1989. On December 30, 1988, prior to the prove up date, defendants moved to vacate the default judgment and sought leave to appear and plead to the complaint. On January 5, 1989, the trial court granted the motion, vacated the default judgment and permitted defendants to appear and to file responsive pleadings.

On January 31, 1989, defendants moved to dismiss plaintiff’s complaint pursuant to section 2—619(5) of the Illinois Code of Civil Procedure on the ground that dismissal of the action is appropriate where the suit has not been commenced within the statutory time limit. As grounds for their motion to dismiss, defendants argued that although a cause of action for personal injury survives the plaintiff’s death under the Illinois Probate Act of 1975 (Ill. Rev. Stat. 1985, ch. 110½, par. 27—6), the cause of action is the property of and an asset of the decedent’s estate and can only be commenced by the decedent’s representative. Since decedent’s representative did not file an action or seek to substitute him or herself in any representative capacity for plaintiff, the defendants contended that action is barred by the statute of limitations requirement in section 13 — 209 of the Illinois Code of Civil Procedure, which states in pertinent part: “If a person entitled to bring an action dies before the expiration of the time limited for the commencement thereof, and the cause of action survives, an action may be commenced by his or her representatives before the expiration of that time, or within one year from his or her death whichever date is the later.” Ill. Rev. Stat. 1985, ch. 110. par. 13-209.

George Knowles died on November 12, 1987, and seven months after his death, “George Knowles” in his own name and not in the name of any representative filed suit alleging defendants were negligent in the manner in which their premises were maintained and alleging severe and permanent personal injuries suffered by him while he was lawfully working on defendants’ premises.

The trial court granted defendants’ motion to dismiss, finding that there was no motion pending to name an administrator as plaintiff within the limitations time period and that, therefore, an action by a decedent was a nullity. The court found that section 13 — 209 extended the statute of limitations and provided for the substitution by an administrator of the decedent only for one year after the decedent’s death. The trial court rejected the insurer’s contention that the insurer or the employer would be allowed more time to file a complaint than an employee would under section 5 of the Workers’ Compensation Act (Ill. Rev. Stat. 1985, ch. 48, par. 138.5). The court found that “section [5] was written in light of existing law applicable to all other plaintiffs, not to confer an exceptional benefit for insurers.” The court held that the employer could have sued in its own name or in the name of plaintiff’s personal representative but chose not to do so and was now time barred by the statute of limitations.

Section 13—209 (Ill. Rev. Stat. 1985, ch. 110, par. 13—209) provides an injured party may file suit with a two-year statute of limitations and extends that two-year period only in the case of the injured party’s death and then only for a year after the date of the party’s death. In this case, Knowles was injured June 13, 1986, he died November 12, 1987, and a suit was filed in his name seven months later on June 6, 1988. The suit in Knowles’ name was brought in the twenty-third month after he sustained his injuries but was brought by plaintiff after his death and not in the name of his representative, of the employer or its insurer. Thereafter the insurer moyed to substitute itself as subrogee-plaintiff on January 5, 1989, nearly 14 months after Knowles’ death.

On appeal, plaintiff argues that it is error to interpret section 13—209 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 13—209) so strictly as to require that a suit be brought only in the name of the deceased’s personal representative. Plaintiff argues that the statute does not contain an identical requirement to that in the wrongful death statute, which requires that a complaint be filed “by and in the names of the personal representatives.” (Ill. Rev. Stat. 1985, ch. 70, par. 2.) Plaintiff argues that to create such a requirement would be contrary to the intent of the legislation. Plaintiff contends that section 13—209 is inapplicable because it was enacted for the limited purpose of giving personal representatives of a deceased the ability to file an action on behalf of the deceased within two years. Plaintiff argues that this action is brought on behalf of the insurer under the Workers’ Compensation Act. . Rev. Stat. 1985, ch. 48, par. 138.5.

The relevant statutory language of section 5 of the Illinois Workers’ Compensation Act provides:

“In the event the employee or his personal representative fails to institute a proceeding against such third person at any time prior to 3 months before such action would be barred, the employer may in his own name or in the name of the employee, or his personal representative, commence a proceeding against such other person for the recovery of damages on account of such injury or death to the employee, and out of any amount recovered the employer shall pay over to the injured employee or his personal representatives all sums collected from such other person by judgment or otherwise in excess of the amount of such compensation paid or to be paid under this Act ***.” Ill. Rev. Stat. 1985, ch. 48, par. 138.5.

Plaintiff contends that although the present action was filed in the name of George Knowles, it was commenced for the benefit of and on behalf of his employer’s insurer, Aetna Casualty & Surety Company, which paid workers’ compensation benefits to Knowles during his lifetime. The Illinois Workers’ Compensation Act permits an action to be brought by the employer in his own name or by his insurer on his behalf or in the name of the employee or his personal representative, if, after 21 months, the employee or personal representative has failed to institute an action against a third party who is potentially liable for damages because of the employee’s injury or death. (Ill. Rev. Stat. 1985, ch. 48, par. 138.5(b).) This statutory language creates in the employer a right akin to the common law right of subrogation. Chicago Transit Authority v. Yellow Cab Co. (1982), 110 Ill. App. 3d 379, 381, 442 N.E.2d 546.

Plaintiff argues that the legislature clearly sought to create a right of recovery for the employer or its insurer in the Workers’ Compensation Act and the subsequent death of the employee should not affect that right. Plaintiff contends that to require every employer or insurer to determine the status of an employee or ex-employee in the three months within which the suit must be filed would be to impose an unreasonable burden on the employer or insurer.

Defendants argue that to permit an extension of the statute of limitation would be to extend to an employer and its insured’s rights beyond and greater than those of the injured employee, an argument the supreme court specifically rejected in Joseph Schlitz Brewing Co. v. Chicago Rys. Co. (1923), 307 Ill. 322, 329, 138 N.E. 658. The court in Schlitz held that the right of the employer to sue a third-party tortfeasor is not a new cause of action created by the Workers’ Compensation Act but is merely the employee’s right of action taken from him and transferred to the employer. Schlitz, 307 Ill. at 327.

The constitutionality of section 5(b) (Ill. Rev. Stat. 1985, ch. 48, par. 138.5) was upheld in McCormick v. Zander Reum Co. (1962), 25 Ill. 2d 241, 244, 184 N.E.2d 882, where the supreme court stated that the subrogee can have no greater rights than the subrogor and can enforce only such rights as the subrogor could enforce. (McCormick, 25 Ill. 2d at 244.) The McCormick court held that the employer was time barred from asserting a claim against a third-party tortfeasor because the suit was not brought within the time limit in which the employee would have had to bring the suit.

Defendants urge this court to interpret the Workers’ Compensation Act in conjunction with section 13—209 of the Code of Civil Procedure. In Schlitz, the supreme court considered a case with similar facts where an employer sought to collect against a third-party tortfeasor for money it had paid in compensation to an injured employee. There the court held that section 5(b) of the Workers’ Compensation Act (Ill. Rev. Stat. 1985, ch. 48, par. 138.5) simply confers on the employer the employee’s right of action and that, therefore, the statute of limitations is the same for an employer action or an employee action brought under section 5(b).

Defendants contend that a dead person cannot be party to a lawsuit since a dead person is a nonentity. (McCue v. Colantoni (1980), 80 Ill. App. 3d 731, 737, 400 N.E.2d 683, 687; Reed v. Long (1970), 122 Ill. App. 2d 295, 297, 259 N.E.2d 411 (A dead person cannot be a party to a suit as such is a nonexistent entity and the proceedings were void ab initio).) In order to maintain a civil suit in tort, there must be a plaintiff and a defendant, each of them either a natural or artificial person in being and not those who are dead or have not yet been born. (Bavel v. Cavaness (1973), 12 Ill. App. 3d 633, 637, 299 N.E.2d 435.) Under section 13-209 (Ill. Rev. Stat. 1985, ch. 110, par. 13—209), a plaintiff may file suit within two years of an injury, but in the event of the plaintiff’s death prior to the expiration of two years, this limitation period is extended to one year from the date of the injured party’s death. Defendants contend that plaintiff’s motion on January 5, 1989, to substitute the insurer as plaintiff-party was brought nearly three years after plaintiff’s injury and more than a year after plaintiff’s death. Defendants argue that this attempt to substitute was made after the expiration of the statute of limitations and, therefore, the trial court properly granted defendants’ motion to dismiss the suit as time barred.

Defendants urge this court to follow the law enunciated in Vukovich v. Custer (1952), 347 Ill. App. 547, 555, 107 N.E.2d 426, rev’d on other grounds (1953), 415 Ill. 290, 294, 112 N.E.2d 712, on which the trial court relied in its ruling. The facts in Vukovich are as follows: John Vukovich was injured while riding as a passenger in an automobile, and he died SW months later, at 6:41 a.m. April 25, 1946. At 8 a.m. that same day, Vukovich’s attorney filed a complaint captioned “John Vukovich, plaintiff v. Mike Komadina and William Custer, defendants” seeking damages of $25,000 from each defendant for their negligent and willful and wanton conduct. A year later, and less than 18 months after the accident, Vukovich’s death was suggested of record and the administratrix of his estate was substituted as party plaintiff and was granted leave to file an amended complaint. The amended complaint alleged wrongful conduct on the part of the defendants which resulted in Vukovich’s injury and death and sought damages for his estate and for his surviving spouse and child. Komadina’s motion to strike the supplemental complaint and motion to dismiss the suit were denied. He was not a party to the later appeal. The trial court granted Custer’s motion to dismiss the complaint against him on the ground that the original complaint was a nullity because it was filed after Vukovich’s death.

The appellate court affirmed the trial court’s decision in Vukovich v. Custer (347 Ill. App. at 555), but on appeal the supreme court reversed the appellate court (415 Ill. at 294). In its decision, the supreme court stated that it was “not necessary to resolve the dispute between the parties as to the effect of the death of Vukovich a matter of hours before the complaint was filed.” (415 Ill. at 292.) The court stated that even if it found the original complaint in the name of a deceased plaintiff was a nullity, “it does not follow that the amended complaint must fall.” (415 Ill. at 293.) The court noted that the amended complaint properly pled a wrongful death action and sought damages for Vukovich’s estate and next of kin.

Defendants argue that in this case there was no motion to name an administrator as plaintiff within the appropriate statute of limitations period and that, therefore, the trial court correctly followed the law as stated in that part of the appellate court decision in Vukovich, which was not reversed by the supreme court, i.e., a complaint filed in the name of a dead person is a nullity.

We do not have a wrongful death action before us. Plaintiff’s complaint seeks damages for a personal injury suffered. Plaintiff now urges this court to find that the complaint was not filed by Knowles but was instead filed on his behalf by his former employer’s insurer as a subrogation action pursuant to the Workers’ Compensation Act. The complaint mentions neither the insurer nor the Workers’ Compensation Act. The Workers’ Compensation Act does permit the employer or its insured a cause of action. Ill. Rev. Stat. 1985, ch. 48, par. 138.5.

Under the facts and procedural history of our case, we find Schlitz and McCormick are persuasive. Both cases hold that the statute of limitations for plaintiff’s suit is two years after the injury or, where the employee has died without filing suit, the limitation period is extended to one year after the employee’s death and that the employer’s and its insured’s rights extend no further. Any attempt to substitute Aetna Casualty as plaintiff nearly three years after the date plaintiff sustained the injury and more than a year after plaintiff’s death does not satisfy the requirements of section 5(b) (Ill. Rev. Stat. 1985, ch. 48, par. 138.5) and section 13—209 (Ill. Rev. Stat. 1985, ch. 110, par. 13—209). We find the trial court properly granted defendants’ motion to dismiss plaintiff’s complaint.

In addition, plaintiff argues that the trial court erred in denying plaintiff’s motion to substitute the name of Aetna Casualty & Surety Company in place of Knowles as plaintiff. Plaintiff argues that Illinois courts favor substitution over dismissal of a lawsuit and cites as authority the case Sjostrom v. McMurray (1977), 47 Ill. App. 3d 1040, 362 N.E.2d 744, and section 2—1008(b) of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—1008(b)). Section 2—401(b) of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2—401(b)) states: “Misnomer of a party is not a ground for dismissal but the name of any party may be corrected at any time, before or after judgment, on motion, upon any terms and proof that the court requires.” (Ill. Rev. Stat. 1985, ch. 110, par. 2— 401(b).) In Vaughn v. Speaker (1988), 126 Ill. 2d 150, 159, 533 N.E.2d 885, the Illinois Supreme Court stated that section 2—401(b) addresses the action to be taken when the proper party is named in a complaint but is identified by the wrong name. The court concluded that changing the name of a party who is deceased to the name of his executor was not simply the correction of a misnomer, since an individual and his estate cannot exist contemporaneously and are wholly distinct legal entities and, therefore, the substitution of the estate for the decedent was not the correction of a misnomer and section 2—401 cannot be invoked for relation back of the second complaint to the date of the original filing. (Vaughn, 126 Ill. 2d at 159.) Using the same rationale, we do not believe section 2—401(b) applies here.

Finally, plaintiff contends that section 2—1008(b) of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2—1008(b)) should have been applied by the trial court to permit substitution of Aetna Casualty & Surety Company as plaintiff on January 19, 1989, the same day defendants filed its motion to dismiss. Section 2— 1008(b) states: “If a party to an action dies and the action is one which survives, the proper party or parties may be substituted by order of court upon motion. *** No action brought for the use of another abates by reason of the death of the plaintiff whose name is used but may be maintained by the party for whose use it was brought in his or her own name upon suggesting the death of record and the entry of an order of substitution.” Ill. Rev. Stat. 1985, ch. 110, par. 2—1008(b).

Defendants contend that a plain reading of section 2—1008(b) indicates that the General Assembly was referring to situations in which a living being who is already a party to a pending action passes away. (Vaughn, 126 Ill. 2d at 158.) Plaintiff contends that the Vaughn case did not consider that portion of the statute which permits substitution of a party when an action is brought “for the use of another.” Here the original complaint was not framed as an action “for the use of another” who subsequently died while the action was pending. The action by insurer for the use of Knowles, the decedent, was required to be filed within the two-year statute of limitations following Knowles’ injury, and we find that on June 13, 1988, the statute of limitations expired. The insurer’s attempt to substitute as subrogee-plaintiff on January 5, 1989, was made after the limitations period had expired and was an attempt to substitute an entirely different legal entity in place of the original named plaintiff.

We believe sections 2—401(b) and 2—1008 (Ill. Rev. Stat. 1985, ch. 110, pars. 2—401(b), 2—1008) do not apply here, where plaintiff has failed to comply with the threshold obligation of filing in the proper legal capacity within the statute of limitations.

For all of the foregoing reasons, we find the trial court properly granted defendants’ motion to dismiss the complaint because subrogee-plaintiff failed to sue in its own name or as a personal representative of decedent within the time allowed under the statute of limitations.

Judgment affirmed.

EGAN- and McNAMARA, JJ., concur.


author: JUSTICE EGAN

text:
    DONNA M. MAKAR, Petitioner-Appellant and Counterrespondent-Appellant, v. RUSSELL K. MAKAR, Respondent-Appellee and Counterpetitioner-Appellee (Lorren Makar, Third-Party Petitioner-Appellee; Donna M. Makar et al., Third-Party Respondents-Appellants).
    First District (6th Division)
    No. 1—89—2463
    Opinion filed March 22, 1991.

      Fritzshall & Gleason, of Chicago, for appellant Donna Makar.
    Brian W. Carey, of Chicago, for appellee Lorren Makar.
    Haas & McLennan, of Wheaton (Douglas L. Haas and Mary Lou McLennan, of counsel), for Russell Makar.
   JUSTICE EGAN

delivered the opinion of the court:

A petition for dissolution of marriage was filed by Donna Makar (Petitioner or Donna) against Russell Makar (Respondent or Russell) alleging physical cruelty. Lorren Makar (Intervenor or Lorren), the step-father of Russell, filed an intervening petition seeking a share of the award of the marital assets. The parties had one major asset, which was a home purchased on March 20, 1984. Donna, Russell and Lorren owned the home in co-tenancy. Donna and Russell also had a minor child, Frederick Makar.

The appraised value of the home was $90,000; the mortgage was $47,536. Of the $42,464 equity in the home, $19,340 was awarded to Lorren, representing the amount he had given to Russell for mortgage payments; $23,124 was split between Lorren, Donna and Russell. Lorren received a total of $27,048; Donna and Russell each received $7,708. Donna has accepted her share. Custody of the minor child was awarded to Russell. Donna was required to pay child support in the sum of $140 per month or 20% of her net take-home pay, whichever was greater. She maintains that the division of the assets of the home was contrary to law and that the award of child support and the custody award were against the manifest of the evidence.

The parties were married December 5, 1981; and Frederick Makar was born on November 20, 1982. On March 20, 1984, Donna and Russell purchased a home at 200 West Kennedy, Streamwood, Illinois. The intervenor, Lorren, gave Russell approximately $8,000 toward the purchase of the house. Donna and Russell together saved $4,000 the first two years of their marriage and used that as part of the down payment on the home. Donna, Russell and Lorren were joint tenants in title to the home, but only Donna and Russell were occupants. During 1985 Lorren started to assist Donna and Russell in their living expenses mainly by helping them pay their mortgage. In May 1986, with the mortgage in default, no payments having been made for several months, Lorren began making the full mortgage payment by giving checks to Russell; Russell would deposit the checks in his account, and he would make the mortgage payments. Lorren testified that he had given Russell $19,340 for mortgage payments during the course of the marriage. Donna does not dispute this figure.

Donna moved out of the home in February 1986 and filed her petition in March 1986. Russell continued to live in the home and still did as of the time of oral argument in this court.

From March 1986 through September 1987, Donna was the custodial parent of Frederick by court order and, in effect, shared custody with Russell. She did not receive any child support from Russell during that time. However, in September 1987 after a contested hearing, Donna was awarded full temporary custody of Frederick and was awarded $125 per month in child support. Donna retained custody of the child until the final judgment of the court was entered.

Donna first contends that the judge erred in the award given to the intervenor, Lorren; she maintains that Lorren was merely protecting his own one-third interest in the home when he made mortgage payments for 27 or 28 months and thus was liable for one-third of the mortgage payments which included interest, principal and taxes that were paid. She concludes that Lorren was entitled to only two-thirds of-the $19,340 awarded or, alternatively, that the entire $19,340 paid by Lorren should be deemed a gift.

We first reject Donna’s alternative argument that the $19,340 paid by Lorren was a gift. The burden of proving a gift is the responsibility of the donee, in this case, Donna. (Keshner v. Keshner (1941), 376 Ill. 354, 33 N.E.2d 877.) Stated briefly, she has not submitted any evidence to support a finding of a gift by Lorren. The only evidence that could be considered relevant on the question of donative intent was the fact that Lorren insisted that he be named a co-tenant in title. That fact militates against any donative intent.

Donna’s claim that Lorren received a disproportionately high share of the award must also be rejected. By her reckoning, Lorren should have received only two-thirds of $19,340 ($12,893) plus one-third of the available balance of $29,571 ($9,857) for a total of $21,750. She argues that Lorren, by law, would have been responsible for one-third of the mortgage payments. In support of her argument she cites Gilmore v. Gilmore (1975), 28 Ill. App. 3d 36, 328 N.E.2d 562. In that case, the court recognized that, as a general proposition of law in joint tenancy, co-tenants are equally liable for the cost of necessary repairs as well as payment of the mortgage and real estate taxes and that the rule applies regardless of the fact that only one tenant may be in actual possession of the property because such expenditures protect the property from loss or damage and thus all co-tenants benefit.

The applicability of Gilmore, decided before the enactment of the Dissolution of Marriage Act of 1977, has been questioned. (See In re Marriage of Fleming (1980), 80 Ill. App. 3d 1006, 400 N.E.2d 625.) But whether it is applicable we need not decide, because we have determined that the amount of money received by Lorren, accepting Donna’s argument, was proper. As noted, Donna agrees that Lorren should receive two-thirds of the $19,340 ($12,893) he gave for mortgage payments and $9,857 for his one-third of the available balance for a total of $21,750. But, as Lorren points out, she ignores the $8,000 advanced by Lorren for the purchase of the home. Donna has not responded to the argument of Lorren that, even accepting her position, Lorren would have been entitled to $29,750, which would be $2,702 more than he actually received. Donna has also not responded to Lorren’s argument that she may not complain of the award because she accepted the benefits of the award and executed a quitclaim deed to the property to Lorren and Russell. (See Katz v. Katz (1973), 10 Ill. App. 3d 39, 293 N.E.2d 904.) The judge did not err in granting an award of $27,048 to the intervenor.

Donna next maintains that the award to Russell should be reduced by $6,446. She reasons that Russell paid no rent or any other expenses for the period of time that Lorren was paying the $19,340. The $6,446 represents the one-third amount that Donna maintains Russell should have been paying. She concludes that that amount represents a dissipation of the marital assets by Russell. We disagree. Whatever the benefit Russell might have enjoyed in living rent-free may be, it is not dissipation under the law. Dissipation is the use of marital property for the sole benefit of one of the spouses for a purpose unrelated to the marriage at the time when the marriage is undergoing an irreconcilable breakdown. (In re Marriage of Sevon (1983), 117 Ill. App. 3d 313, 453 N.E.2d 866.) The action of Russell in living in the home without paying the rent cannot be considered the use of marital property for a purpose unrelated to the marriage at a time when the marriage is undergoing an irreconcilable breakdown. For these reasons, that part of the judgment fixing the distribution of the marital assets is affirmed.

Donna next contends that the judge abused his discretion when he ordered that she pay $140 a month or 20% of her net income, whichever is greater, for child support. We agree with Donna’s argument for two reasons. Since the judge exceeded the guidelines set forth in section 505 of the Act (Ill. Rev. Stat. 1987, ch. 40, par. 505), he was not obliged to make express findings explaining his reasons for doing so. In this case, however, he did explain his reasons for granting custody to Russell. The judge noted the strength of Russell’s financial position and the weakness of Donna’s. He said that Donna’s living expenses exceeded her income. Under the circumstances the award of child support was against the manifest weight of the evidence.

Moreover, the attorney for Russell conceded Donna’s weak financial position and expressly agreed that the issue of child support should be reserved for a later date. He said this:

“Now, Judge, I would briefly like to go over the other issues. With custody to Russell, Judge, on the issue of child support, I don’t think that Mrs. Makar has the ability to pay child support. So what I am going to suggest, Judge, is a reservation of child support from Donna Makar to Russell.”

The judge recognized, when deciding the question of custody, that Donna’s financial position was weak, and he gave no reason for ignoring the agreement of Russell to reserve the question of child support. For these reasons, the order awarding child support is vacated.

Donna’s last contention is that the judge abused his discretion in-awarding sole custody of Frederick to Russell. The judge found that both parents were fit and proper to have custody of the child. He made numerous findings of fact on the question of custody. He pointed out that Russell had a regular, full-time job and retained the marital home. The child expressed the desire to live with his father. There was also a positive relationship between the child and Lorren. Donna had had five jobs in 36 months. She had quit three of them and had been fired from two. She had lived in four different places over a 26-month period. She was earning no more than $500 a month from her present employment, but she had hopes of being promoted. At the time she was earning commissions from her present employer, she was accepting unemployment compensation from the State of Illinois. She had another 13-year-old son from a previous marriage who lived with her, but she had given up custody of that child to his father. The judge expressed doubts that she was likely to be promoted. He also expressed difficulty in reconciling Donna’s “income, bank deposits and living expenses.”

As is so often the case, the evidence was not all one-sided, but we cannot say that the judge’s decision was against the manifest weight of the evidence or that he abused his discretion. In re Custody of Blonsky (1980), 84 Ill. App. 3d 810, 405 N.E.2d 1112.

Donna also argues that the judge improperly considered evidence that had been stricken. Russell’s attorney asked Donna a question about sexual relations she had had with another man while she was separated from Russell. The judge sustained an objection by Donna’s attorney. The judge later permitted cross-examination of an investigator of the Cook County Supportive System concerning the relationship between Donna and the other man. However, he did not permit any questions about their sexual relations. During his explanation of his final order, the judge said that Donna had admitted having sexual relations with another man “between 15-20 times over the last two years.” The judge was mistaken, but his later remarks showed that he did not attach any significance to the fact that Donna had sexual relations with the other man. He emphasized that there was no evidence to show that Frederick was aware of their sexual relationship. Any error, therefore, was harmless. For these reasons, that part of the judgment granting custody to Russell is affirmed.

Judgment affirmed in part and vacated in part.

McNAMARA and LaPORTA, JJ., concur.

      The order provided for “liberal visitation” between Donna and Frederick. Donna does not contest the visitation order.


author: PRESIDING JUSTICE RAKOWSKI

text:
    BOARD OF TRUSTEES OF THE VILLAGE OF BARRINGTON POLICE PENSION FUND, Plaintiff-Appellant, v. THE DEPARTMENT OF INSURANCE et al., Defendants-Appellees.
    First District (6th Division)
    No. 1—89—2528
    Opinion filed March 22, 1991.

      Doss, Puchalski & Keenan, Ltd., of Chicago (Richard J. Puchalski, of counsel), for appellant.
    Neil E Hartigan, Attorney General, and Pfeifer & Kelty, both of Springfield, and Arnstein & Lehr, of Chicago (Robert J. Ruiz, Solicitor General, and Daniel N. Malato, Assistant Attorney General, of Chicago, and Thomas W. Kelty, J. William Braithwaite, Eugene J. Kelley, Jr., Arthur L. Klein, and Leslie W. Loftus, of counsel), for appellees.
   PRESIDING JUSTICE RAKOWSKI

delivered the opinion of the court:

Plaintiff Board of Trustees of the Village of Barrington Police Pension Fund (Pension Board) filed a declaratory action against the Illinois Department of Insurance and its Director, John R. Washburn (collectively, the Department). The complaint questioned the propriety of the Department’s finding that the Pension Board had violated the Illinois Pension Code (Ill. Rev. Stat. 1987, ch. 108½, par. 1—101 et seq.) by investing pension funds in a below market rate home mortgage loan program (program) available to its participants and beneficiaries (members). The trial court granted defendant Village of Barrington’s (Village’s) petition for leave to intervene.

On August 23, 1989, the trial judge ruled on the parties’ cross-motions for summary judgment, presented by way of stipulated facts. The trial judge held that the Pension Board’s program was violative of the Pension Code and common law trust principles, and that the program amounted to “compensation” to its members. The Pension Board appeals, requesting that this court reverse the trial court’s finding and declare the validity of the program. We reverse and remand.

The Pension Board has the sole authority to invest pension fund assets provided such investments comport with the provisions of the Illinois Pension Code. The Department is the State agency which regulates the pension fund at issue in this case, and the Department is empowered to take legal action against pension funds or their trustees. In July of 1984, the Pension Board investigated the possibility of establishing a residential mortgage investment program wherein the members of the Barrington Police Pension Fund (the Fund) could receive mortgages at lower than market interest rates.

The Pension Board consulted actuaries, pension and labor lawyers and bankers in developing the program. The Pension Board hired the actuarial and consulting firm of Hewitt Associates to do a study of the implementation of the program. Hewitt Associates issued a report and concluded that the implementation of such a program would have no adverse impact upon the benefit security of the Fund. The Pension Board filed an action for declaratory judgment in 1985, seeking to have the validity of the proposed program affirmed. The court, however, declined to rule as to the validity of the program due to the fact that the program had not yet been implemented.

On June 30, 1986, the Pension Board entered into a written agreement with AmeriFed Federal Savings Bank (AmeriFed). This agreement, which made the program available only to the Fund’s participants and beneficiaries, worked as follows: Pension funds were not loaned directly to the individuals receiving loans. Two accounts were established at AmeriFed. One account was a market rate account which bore interest at the standard rate paid to all AmeriFed money management account holders. The other account was a matching fund account. As loans were made by AmeriFed to qualified persons, an amount equal to the loan was transferred from the market rate account to the matching account. Earnings and repayments were transferred from the latter account to the former account on a quarterly basis. The purpose of these two accounts is to ensure that the Fund would return the greatest return on its investment under the program.

Under the agreement, AmeriFed would make residential loans to persons who qualified under the program at a rate of 21/2% below AmeriFed’s current “note rate.” Funds which were deposited in the matching account earned interest at a rate of 21A% below AmeriFed’s current note rate. In 1988, the difference between the interest earned in the market rate account and the interest earned in the matching account was .25%. The agreement provided that AmeriFed would not loan money if the interest paid to the Pension Board’s matching account would be less than the annual interest rate assumption issued to the Village by the Department in order to determine tax levy requirements for the Fund.

AmeriFed charged no fees to the Fund under the agreement. The individuals qualifying for a loan were charged certain customary fees, and the applicant’s financial qualification was determined by AmeriFed, which applied its standard underwriting criteria in determining the prospective mortgagor’s financial qualification. Under the agreement, AmeriFed warrants that all funds held will be fully insured in the aggregate of up to $100,000 for each participant and beneficiary, provided that the accrued value of any member does not exceed $100,000. Mortgages of up to $125,000 are authorized. The Pension Board agreed to limit its total investment under the program to $1 million.

The Pension Board posted an agreement it made with its members which detailed the rights of the current and retired police officers who were members of the Fund. This document established a selection system among pension fund members as to participation in the program. Eligibility to participate included such criteria as police service for three years, a declaration of intention to participate, and that the officer not be on a leave of absence or suspended from the force. No participants or beneficiaries objected to the program, and all members who chose to participate in the program, nine to date, have been allowed to do so.

If an officer left the department or withdrew from the Fund, he was no longer able to participate in the program, and the mortgage rate would increase to the current mortgage rate. If there was a default, the Fund accrues no liability.

At the time that the program was implemented, three of the trustees were eligible to participate in the program, though none have elected to do so. From 1986, when the program was implemented, to 1988, the Fund’s monetary assets have increased. The rate of return on the Fund’s assets, however, has declined from 9.975% in 1986 to 8.902% in 1988. The Fund was fully funded in 1988. At the end of 1988, some 18% of the Fund’s total assets were invested in the program. An additional 12% of the Fund’s assets were committed to the matching account. The rates the Fund received on other accounts than those involved in the program varied from 7.25% to 12%.

The Village objected to the implementation of the program. The Village also commissioned an actuarial firm Towers, Perrin, which studied the program. Towers, Perrin issued a report which concluded that while the program may not threaten benefit security, the program could force the Village to levy over $1 million in additional taxes on real property over the 30-year period the program is to extend. The study also concluded that the Fund will have $2.4 million less at the end of the 30-year period.

In 1987, the Department conducted an examination of the Fund for the five-year period ending April 30, 1986. In July of 1987, the Department issued a report contending that the program violated provisions of the Illinois Pension Code, and the Department ordered the Pension Board to terminate the program. The Pension Board filed suit for declaratory judgment.

The Pension Board, the Department and the Village all presented motions for summary judgment. In granting defendants’ motions for summary judgment, the trial court held that the program amounted to compensation in violation of Illinois law. Additionally, the trial court held that the program was violative of both the “exclusive purpose” rule in the Pension Code and the common law of trusts. The trial court did not rule on whether the program was an imprudent investment or whether the program constituted a prohibited transaction under the Pension Code.

The first issue we shall address is whether the program impermissibly provides compensation to employees of the Village. The Village contends that the providing of discount mortgages to the members constitutes an attempt by the Pension Board to usurp the Village’s sole authority to compensate its employees. As authority for this argument, the Village cites section 3—13—2 of the Illinois Municipal Code (Ill. Rev. Stat. 1987, ch. 24, par. 3—13—2), which provides in pertinent part: “No compensation shall be paid to any city officer or employee in addition to that provided in the ordinance fixing his salary.”

The Village has not cited any case law construing this statutory provision. A review of the case law involving issues of additional compensation under this statute, however, reveals that the issues center around whether an employee has been entitled to additional compensation (for services rendered) from the city. At issue in these cases is the city’s liability for such service as overtime work (see Gathemann v. City of Chicago (1914), 263 Ill. 292, 104 N.E. 1085), and whether the work an employee performed was contemplated within his occupational duties with the city and whether his compensation thus was limited to that fixed by ordinance (see Osborne v. City of Alton (1954), 4 Ill. 2d 605, 123 N.E .2d 847). The Village does cite case law containing principles of statutory construction in arguing that we should not construe the Pension Code to allow the Pension Board investment authority to additionally compensate village employees. This argument, however, assumes that the program amounts to current compensation. Here, there is simply no issue as to the Village’s liability; it is the fund that has implemented the program. Moreover, participants and beneficiaries are eligible for the program only by virtue of membership in the Fund, not as remuneration for services rendered. We hold that the program does not constitute current compensation in violation of Illinois law.

We next address the other grounds upon which the trial court based the granting of defendants’ motions for summary judgment. The trial court held that the program was violative of both the Pension Code’s exclusive purpose rule and the common law of trusts. In arriving at the conclusion that it was error for the trial court to do so, we focus on an area the trial court did not: that of prudence.

Initially, we note that given the lack of Illinois case law construing the relevant portions of the Pension Code, we look for guidance to analogous provisions of the Employee Retirement Income Security Act of 1974 (29 U.S.C. §1001 et seq. (1988)) (ERISA) and the Federal case law construing ERISA.

The trustees of the Pension Board are fiduciaries under the Pension Code. (Ill. Rev. Stat. 1987, ch. 108½, par. 1—101.1.) Trustees of a pension fund are likewise fiduciaries under ERISA. (29 U.S.C. §1002(21)(A) (1988).) Both the Department and the Village argue, as they did below, that the program was an imprudent investment. Section 1—109(b) of the Pension Code provides that the Pension Board should discharge its duties “with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims.” (Ill. Rev. Stat. 1987, ch. 108½, par. 1—109(b).) Essentially the same language requiring prudence is found in ERISA. See 29 U.S.C. §1104(a)(l)(B) (1988).

Prudence under ERISA is measured according to the objective prudent person standard which has been developed in the common law of trusts. (Fink v. National Savings & Trust Co. (D.C. Cir. 1985), 772 F.2d 951, 955.) A court’s task in evaluating fiduciary compliance under ERISA is to inquire “whether the individual trustees, at the time they engaged in the challenged transactions, employed the appropriate methods to investigate the merits of the investment and to structure the investment.” (Donovan v. Mazzola (9th Cir. 1983), 716 F.2d 1226, 1232.) A fiduciary’s independent investigation of the merits of a particular investment is “at the heart of the prudent person standard.” Fink, 772 F.2d at 957.

In arguing that the Pension Board failed to exercise reasonable prudence when investing in the program, the Department emphasizes that the program’s matching account received .25% lower interest than the market account, which received an interest rate identical to AmeriFed’s other management accounts. The Department contends that the Pension Board acted imprudently by putting any funds in the lower interest matching account, and also that the Pension Board acted imprudently in implementing the program at all, as the Fund will lose some $2.4 million in assets over the next 30 years as a result of the lower rate the Fund receives through the program, as opposed to other Fund investments. The Department has not provided any evidence, however, nor has the Department raised the argument that the Pension Board could have procured a better deal from an institution other than AmeriFed. Nor has the Department provided any evidence that the Pension Board could have procured any better deal from AmeriFed itself.

The Village cites McLaughlin v. Rowley (N.D. Tex. 1988), 698 F. Supp. 1333, for the proposition that it was imprudent for the Pension Board to invest and receive a lower than prevailing rate of interest. In McLaughlin, the trustees of a pension fund made loans to participants and charged lower interest than the market rate. While the court held that the trustees acted imprudently in administering the program, it is important to note that the court based this conclusion on several factors in addition to the lower interest rate, including failure to require evidence of borrowers’ ability to repay the loan without resort to the security (the security being the participant’s vested interest in the plan), failure to enter written agreements setting forth all relevant terms of the loans, and failing to require repayment of the loans when due or to properly renegotiate the loans. (McLaughlin, 698 F. Supp. at 1338.) Thus, McLaughlin is distinguishable from the instant case. Moreover, in Brock v. Walton (11th Cir. 1986), 794 F.2d 586, where the fund itself issued mortgage loans to its participants at more than two percentage points less interest than the market rate, the court clearly held that the evidence of a lower than market interest rate, alone, was insufficient to create a question as to whether the trustees failed to charge a reasonable rate of interest or violated the rule of prudence. We thus conclude that the fact that the program earned a less than market rate of interest, alone, is insufficient reason to hold as a matter of law that the program was an imprudent investment in violation of the Pension Board’s fiduciary duty.

The Pension Board emphasizes that it consulted actuaries and attorneys in implementing the program. We are not convinced, however, that these facts, alone, entitle the Pension Board to judgment on the issue as a matter of law, either. This is because “[a]I-though due care will often demand the taking of advice from attorneys, appraisers, investment bankers, and from others, the fact that such advice was obtained does not of itself show that the trustee has used the requisite caution. He may have been guilty of a lack of ordinary judgment in weighing all the evidence he obtained about the projected investment.” (G. Bogert, Trusts and Trustees §612, at 28-29 (2d ed. 1980).) Because of our inability to determine as a matter of law the prudence of the investment at issue, we remand this case to the trial court for a determination of the issue.

Being unable to assess the prudence of the investment, and for other reasons which we shall discuss, we are unable as well to determine that the program is violative of the other provisions of the Pension Code defendants cite or violative of the common law of trusts.

While there is no Illinois case law construing the exclusive purpose rule in the Pension Code, it is apparent, both from the language of the statute and the parties’ analysis of the statute, that the provision is essentially a codification of common law trust principles. Under section 1—109 of the Pension Code (Ill. Rev. Stat. 1987, ch. 108½, par. 1—109), a pension board must discharge all its duties “solely in the interest of the participants and beneficiaries *** [flor the exclusive purpose of: (1) Providing benefits to participants and their beneficiaries; and (2) Defraying reasonable expenses of administering the retirement system or pension fund.” Under established principles of the law of trusts, “[a] trustee must act honestly and with undivided loyalty to his trust.” (Rennacker v. Rennacker (1987), 156 Ill. App. 3d 712, 715, 509 N.E.2d 798.) A trustee under Illinois law is a fiduciary and must serve the interest of his beneficiary excluding self-interest. (Home Federal Savings & Loan Association v. Zarkin (1982), 89 Ill. 2d 232, 239, 432 N.E.2d 841.) This exclusive purpose rule prohibits a trustee from dealing with the trust property for his individual benefit. See Central Standard Life Insurance Co. v. Gardner (1959), 17 Ill. 2d 220,161 N.E.2d 278.

In this case, as there has been no determination of the prudence of the transaction, we are left with the possibility that the program may well be a prudent investment. Assuming this to be the case, we are hesitant to conclude that the program violates the exclusive purpose rule or the common law rule of trusts for a number of reasons. First, if the investment in question is deemed a prudent one, we are not troubled by the possibility that some members of the fund will receive the benefit of discounted mortgage loans. If the investment is a prudent one from an objective standard, we would not discourage the Pension Board from also procuring an incidental benefit of the type at issue. The exclusive purpose rule under ERISA, which is identical to the rule found in our Pension Code, “does not prohibit a party other than a plan’s participants and beneficiaries from benefit-ting in some measure from a prudent transaction with the plan.” (Donovan v. Walton (S.D. Fla. 1985), 609 F. Supp. 1221, 1245.) Surely, then, there is no conflict where members of the fund may additionally benefit from a prudent transaction. Moreover, ERISA itself specifically allows a fund to make loans to its members, providing, inter alia, that such loans are available to members on a reasonably equivalent basis and bear a reasonable rate of interest. Here, the program did make participation available on a reasonably equivalent basis and, as we will discuss, we are unable to say that the loans did not bear a reasonable rate of interest.

A review of Federal decisions which have found violations of the exclusive purpose rule under ERISA reveals situations where there is an imprudent transaction in which the trustee has a personal stake. (See, e.g., Leigh v. Engle (7th Cir. 1984), 727 F.2d 113; Donovan v. Bierwirth (2d Cir. 1982), 680 F.2d 263.) No such circumstance is presented in this case. Moreover, the conduct of the Pension Board was “above board” throughout the implementation of the program, as the trial judge observed. The members, fully informed of its implementation, voiced no objections to the program. To date, there have been no members turned away from participation in the program. Moreover, there is no indication why in the future, should more members choose to participate in the program than the program currently accommodates, the Pension Board could not invest greater amounts of money as the Fund’s assets continue to increase to accommodate extra members. In sum, absent a finding regarding prudence, we are not convinced that the Pension Board’s investment, as a matter of law, is violative of either the exclusive purpose rule or the common law of trusts.

Both the Department and Village argue that the program was a prohibited transaction under the Pension Code. The Pension Code provides that fiduciaries, such as the Pension Board, may not engage “direct[ly] or indirect[ly]” in certain transactions, including:

“Lending of money or other extension of credit from the retirement system or pension fund to a party in interest without the receipt of adequate security and a reasonable rate of interest, or from a party in interest to a retirement system or pension fund with the provision of excessive security or an unreasonably high rate of interest.” Ill. Rev. Stat. 1987, ch. 108½, par. 1—110(a)(2).

The Department argues that the program is violative of the above provision because the Pension Board received inadequate consideration for the program, while the Village argues that the program violates the above provision because it receives an unreasonable rate of interest. Both prohibitions defendants rely on, however, refer to the loaning or transferring of funds to parties in interest. Here, the Pension Board has not loaned or transferred funds to the members. Rather, the Pension Board has invested in a program whereby AmeriFed makes the loans to the participants. Moreover, as is the case with regard to the argument defendants make concerning prudence, defendants have not argued any facts of record which indicate that the Pension Board could have procured any better deal than it did. In Brock, the court refused to hold that the mere showing of a below market interest rate was enough to present a factual question concerning whether the trustees failed to charge a reasonable rate of interest. (Brock, 794 F.2d at 587.) Similarly, we cannot say, as a matter of law, that merely because the investment here obtained an interest rate at below the market rate the investment fails for lack of consideration or because of an unreasonably low interest rate.

The Department also argues that the program constitutes a prohibited transaction because some of the Pension Board trustees who implemented the program could elect to participate in the program (although none have to this date). As the Department acknowledges, however, section 1—110(c)(1) of the Pension Code provides that a trustee is not prohibited from “[receiving any benefit to which he may be entitled as a participant or beneficiary in the retirement system or pension fund.” (Ill. Rev. Stat. 1987, ch. 108½, par. 1—110(c)(1).) The Department argues that this provision justifies the trustee’s eligibility for the program only if the program does not violate the other provisions of the Pension Code which the parties have discussed. Thus, this issue is only duplicative of the others. As the program is not violative of the exclusive purpose rule or rule of prudence as a matter of law, it follows that the program is not a prohibited transaction under the Pension Code as a matter of law.

Our holding should in no way indicate that the mere existence of incidental benefits to all or some members of a pension fund justifies any investment by a pension board. We emphasize that the transaction at issue was one enacted by the Pension Board after full disclosure, without objection, by a fund that has become fully funded, and whose portfolio has been successful as evidenced by the fund’s continued increase in assets. Further, the only indication is that the program will not threaten benefit security.

Finally, we address the Pension Board’s contention that the Village should not have been allowed to intervene as a party to the litigation. The Pension Board contends that the Village did not meet any of the requirements for mandatory intervention as no statute conferred the right to intervene to the Village, the Village cannot show that its interests are not adequately represented by the State, and there has been no showing that the Village will be adversely affected by a distribution or other disposition of property. Moreover, the Pension Board contends, the Village has no standing to challenge the program’s validity, the Village’s assertion that an increase in tax levies may occur is speculative, and taxpayers, not the Village, would suffer the injury of any tax increase. Thus, according to the Pension Board, permissive intervention is inappropriate as well.

Intervention in Illinois is governed by section 2—408 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—408), which provides, in pertinent part:

“(a) Upon timely application anyone shall be permitted as of right to intervene in an action: (1) when a statute confers an unconditional right to intervene; or (2) when the representation of the applicant’s interest by existing parties is or may be inadequate and the applicant will or may be bound by an order or judgment in the action; or (3) when the applicant is so situated as to be adversely affected by a distribution or other disposition of property in the custody or subject to the control or disposition of the court or a court officer.
(b) Upon timely application anyone may in the discretion of the court be permitted to intervene in an action: (1) when a statute confers a conditional right to intervene; or (2) when an applicant’s claim or defense and the main action have a question of law or fact in common.”

The intervention section of the Code of Civil Procedure is to be liberally construed. (Bredberg v. City of Wheaton (1962), 24 Ill. 2d 612, 623, 182 N.E.2d 742.) A trial court’s decision to allow leave to intervene will not be disturbed absent an abuse of discretion. (Ackmann v. Clayton (1976), 39 Ill. App. 3d 1013, 1014, 350 N.E.2d 824.) The purpose of the intervention is to expedite litigation by disposing of the entire controversy among the persons involved in one action to prevent a multiplicity of lawsuits. (University Square, Ltd. v. City of Chicago (1979), 73 Ill. App. 3d 872, 877-78, 392 N.E.2d 136.) The threshold determination a trial court must make is whether the requirements of the intervention statute have been met. University Square, 73 Ill. App. 3d at 878.

To intervene, “[a] party need not have a direct interest in the pending suit but it must have an interest greater than that of the general public [citation], so that the party may stand to gain or lose by the direct legal operation and effect of a judgment in the suit.” (Caterpillar Tractor Co. v. Lenckos (1981), 84 Ill. 2d 102, 112.) The Pension Board relies on the University Square case in arguing that the Village should not have been allowed to intervene. In that case, the intervenor was both the alderman of the ward and a taxpayer who lived over a mile from the site where building permits were issued. He contended that “the escalation of population density and traffic caused by plaintiff’s project would adversely affect his use and enjoyment of his property.” (University Square, 73 Ill. App. 3d at 878.) The trial court acknowledged that the intervenor did not meet the requirements of the intervention statute, but allowed the petition to intervene “as a means of permitting the procedural and substantive matter to be presented to the Appellate Court at one time, thereby avoiding a piecemeal appeal.” (University Square, 73 Ill. App. 3d at 877.) As indicated above, the appellate court held that the initial determination in an intervention case is whether the requirements of the statute authorizing intervention have been met. The court further held that intervention in that case was not warranted.

In this case, the Pension Board does not dispute that the Village budgets money for the Pension Fund, nor does it dispute that the program may cause an increase in the tax levies, estimated to be well over $1 million during the life of the program. A basic tenet of the intervention statute is that it is remedial and should be liberally construed. (People v. Roush (1982), 111 Ill. App. 3d 618, 444 N.E.2d 625.) The Department and Village have different interests at stake, and the evidence indicates that the Village can be affected by the resolution of the program’s validity. We therefore hold that the trial court did not abuse its discretion in allowing the Village leave to intervene.

Accordingly, the judgment of the circuit court is reversed, and the cause is remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

EGAN and LaPORTA, JJ., concur.