author: JUSTICE TULLY JUSTICE CERDA,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FLEMON HOWARD, Defendant-Appellant.
    First District (3rd Division)
    No. 1—88—2792
    Opinion filed July 15, 1992.
    Michael J. Pelletier, Janice Lynn Triptow, and James E. Chadd, all of State Appellate Defender’s Office, of Chicago, for appellant.

      Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Michael Latz, and Gregory Vaci, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE TULLY

delivered the opinion of the court:

Defendant Flemón Howard was charged with two counts of murder and one count of armed violence. After a jury trial, Howard was convicted for the murder of Richard Rainey and sentenced to 30 years in prison.

At trial, defense counsel indicated that the defendant Howard never intended to kill Rainey and that the stabbing was a reckless act. On appeal, defendant raises three issues: (1) defendant was denied a fair trial due to the prejudicial remarks of the prosecutor made during closing argument; (2) defendant was denied effective assistance of counsel where defense counsel failed to tender a jury instruction defining “recklessness” and defendant’s mental state was a central issue in the case; and (3) the sentence imposed was excessive, in view of mitigating factors and rehabilitative potential.

Defendant Howard lived across the street from Richard Rainey. At trial, defendant stated that he had been best friends with the victim for approximately 16 years. On the evening of January 17, 1987, Howard, along with another man and five women, went to a restaurant around 4 a.m. They had previously been drinking at a nearby bar from midnight until closing. While at the restaurant, two unidentified males began verbally harassing the women who were with the defendant. Defendant asked them to stop and then became engaged in a fist fight with one of the two men. During the fight, the other man dropped a knife. Defendant retrieved the knife and put it in his pocket.

After the fight, defendant drove home, parking his car on Adams Street, one block west of his house, located at 4337 West Jackson. While walking to his house, defendant noticed that the two men, with whom he had just fought, were following him. Instead of going to his own house, defendant went to a house at 4326 West Jackson, where Rainey lives in the basement. In order to awaken Rainey, defendant knocked on the basement window causing it to break. Rainey asked defendant why he had broken the window and then crossed the street with the defendant. Defendant explained what had happened earlier and pointed to the two men, who were then approaching the defendant and Rainey. Defendant took the knife from his pocket, which he had from the previous fight and Rainey grabbed defendant in a “bear hug” in order to prevent another fight. Defendant was very upset and intoxicated. After defendant broke away from Rainey, the two men fled the scene. Rainey picked up a stick and gestured angrily at the defendant for having broken his basement window. Defendant then hit Rainey with the hand containing the knife. Rainey stumbled backwards gasping and fell to the ground.

Defendant testified that he became scared and went to the corner of Jackson and Kostner Streets to call the police from a public phone. While standing near the phone, defendant flagged an unmarked squad car and told the officers that he was sick and needed to go to a hospital. During the earlier fight, defendant had injured his right hand, which had been previously broken. Defendant subsequently refused help and walked away from the officers.

The only eyewitness to the stabbing was the victim’s niece, Karen Rainey, who lived on the first floor of the victim’s house. Karen Rainey testified at trial that she was awakened by the footsteps of her uncle, Richard Rainey, coming up the basement stairs. She heard him shouting at the defendant about the broken window. She then looked out the front window of the house and saw her uncle walking arm and arm with the defendant, whom she has known since childhood. She could hear the defendant yelling and the two men crossed the street. She could only see the defendant’s back and her uncle, Richard Rainey, was standing on the curb facing her. The defendant was hollering and motioning with both hands. She then saw the defendant take a step towards Richard Rainey, his hand moved and then he walked away. Richard Rainey then fell to the ground. She called the police and then crossed the street, where she found the motionless body of Richard Rainey. She also testified that the defendant and her uncle were friends and they saw each other almost every day.

The medical examiner testified that the victim suffered a stab wound to the neck, approximately one-half inch long and two inches deep. The wound perforated the left lung and penetrated the main blood vessel to the heart. Each chest cavity contained approximately one liter of blood.

Assistant State’s Attorney Lori Levin testified that the defendant rendered two different accounts as to the events. The first account was consistent with the defendant’s trial testimony. Levin then told the defendant that Karen Rainey had witnessed the stabbing and that Karen only saw two people, the defendant and Richard Rainey, in front of the house that evening. Defendant then stated that no one had followed him home. He went to Richard Rainey’s house because he was upset about the restaurant fight. Rainey walked across the street with him to calm him down. He then pointed at Rainey's chest and stabbed him. Rainey staggered a couple of steps and then collapsed. He then flagged down a police car to aid Richard Rainey.

On appeal, defendant contends the State’s closing argument was unduly prejudicial, denying him a fair trial. As a threshold matter, defendant failed to specifically list the objectionable statements in a post-trial motion. In order to preserve an issue on appeal, a party must make a contemporaneous objection at trial and raise it in a post-trial motion. (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.) Defendant’s post-trial motion contained a form objection, generally alleging that the closing-argument statements of the prosecutor were “inflammatory and erroneous *** designed to arouse the prejudices and passions of the jury.” Such a lack of specificity in the post-trial motion fails to preserve the issue for review. (See People v. Thomas (1983), 116 Ill. App. 3d 216, 452 N.E.2d 77.) However, where the evidence is closely balanced and the verdict would not have been the same absent the alleged errors, we may still reverse under the doctrine of plain error. Because we consider this to be a close case, we will review the alleged errors of the prosecutor in closing.

First, the State argued there was no conspiracy among the State, its witnesses and the police. It has been held to be reversible error, where a prosecutor instructs the jury that it must find the State’s witnesses are lying in order to believe the defendant. (People v. Cole (1980), 80 Ill. App. 3d 1105, 1108, 400 N.E.2d 931, 933.) The statements cited by the defendant in his brief refer to a conspiracy but are not as strong as the remarks in Cole. In addition, the State claims its remarks about a conspiracy were an “invited response” to defense counsel’s comment that the State’s counsel were “war dogs.” We agree.

The comments by defense counsel during closing accused the prosecution of being “war dogs” and implied that they were only interested in winning the case and not in discovering the truth. The State was entitled to defend itself against the defense’s accusations. In a like case, the defense counsel implied that a State’s witness was engaged in a conspiracy against the defendant. The court held that where defense counsel invites a rebuttal, it is neither improper nor prejudicial. People v. Johnson (1986), 114 Ill. 2d 170, 499 N.E.2d 1335.

The second series of remarks by the prosecutor were unsolicited comments about the defense of manslaughter. Just prior to the retirement of the jury, the prosecutor stated:

“Ladies and gentlemen, involuntary manslaughter does not apply; it is a cop-out and I don’t want to insult anyone but it is a cop-out in this case. The evidence is clear and we ask you to find him guilty of murder. Thank you.”

In People v. Wilson (1983), 120 Ill. App. 3d 950, 961, 458 N.E.2d 1081, 1089, the prosecutor repeatedly referred to the insanity defense as a “smoke screen” and implied it was not a proper defense in a rape case. The court held this to be a misstatement of the law and “grossly improper.” The court also commented on the cumulative effect of the errors, stating that they cast doubt on the defendant’s defense.

In the case sub judice, there is not a scintilla of evidence to support the prosecutor’s conclusion that involuntary manslaughter did “not apply” and was a “cop-out.” The defendant and the victim were best friends for more than a decade. Indeed, it was this friendship which prompted the defendant to visit the home of the victim after a prior altercation with two strange men. When the defendant encountered the victim, he was intoxicated and very upset. He accidentally broke the defendant’s window, while trying to awaken him in the early morning hours. The only witness to the encounter was Karen Rainey, the victim’s niece, who overheard her uncle yelling about the broken window. She then saw the two men cross the street, still arguing, their arms in the air. She could only see the defendant’s back, then his hand moved towards the victim and he fell to the ground. This corroborated the testimony of the defendant, except he claimed that Richard Rainey picked up a stick and began gesturing at him, angry about the broken window. Defendant then swung at the victim with the hand containing the knife. A stick was later found at the scene.

The only issue to be decided by the jury was whether or not the defendant’s actions and mental state supported a verdict of murder or involuntary manslaughter. The prosecutor’s suggestions to the jury that involuntary manslaughter was inapplicable and a “cop-out” were highly improper. While the prosecutor’s comments, standing alone, may not have been reversible error, when considered in light of the subsequent failure of the defense counsel to tender a jury instruction on involuntary manslaughter, the cumulative effect of these errors may have influenced the outcome in this case.

The second issue raised on appeal is whether the defendant was denied effective assistance of counsel for failure to tender a jury instruction defining “recklessness.” Defense counsel tendered Illinois Pattern Jury Instructions, Criminal, No. 7.07 (2d ed. 1981) (hereinafter IPI Criminal 2d), the definitional instruction on involuntary manslaughter:

“A person commits the offense of involuntary manslaughter when he unintentionally causes the death of an individual by acts which are performed recklessly and are likely to cause death or great bodily harm to another.”

The committee note beneath the instruction states that IPI Criminal 2d No. 5.01, defining “recklessness,” is to be given with IPI Criminal 2d No. 7.07. In asking this court to find reversible error, the defendant relies upon People v. Bolden (1968), 103 Ill. App. 2d 377, 243 N.E.2d 687. In Bolden, the evidence was closely balanced, where the victim was stabbed by the defendant during a game of “tough” (i.e., fencing with knives). The only issue was whether the stabbing was murder or involuntary manslaughter. The definition of involuntary manslaughter read to the jury omitted the phrase “the act must be performed recklessly.”

The court found the failure to mention or define the mental state of recklessness, one of the essential elements of involuntary manslaughter, was prejudicial error and deprived the defendant of a fair trial. In the case at hand, the mental state, recklessness, was mentioned in the definition of manslaughter, but it was never defined for the jury. The defense argues this was prejudicial since many jurors may have thought that recklessness meant ordinary negligence and therefore they chose murder, the only alternative.

The State relies on People v. Carlson (1980), 79 Ill. 2d 564, 404 N.E.2d 233, wherein the supreme court found failure to tender the definition of “recklessly” in conjunction with involuntary manslaughter was not a substantial defect, where there was no substantial prejudice to the defendant. In order to prevail on a claim of ineffective assistance of counsel, a defendant must establish: (1) the defense counsel’s performance deviated from an objective standard of reasonableness; and (2) the defendant was substantially prejudiced by the alleged errors, such that the verdict would have been different. Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052.

The instant case is distinguishable from Carlson in several respects. First, the Carlson court rested its holding on People v. Underwood (1978), 72 Ill. 2d 124, 378 N.E.2d 513. In Underwood, the defendant stabbed the victim three times and the central issue in the case was whether the defendant justifiably acted in self-defense. A definitional instruction on self-defense was tendered to the jury stating: “A person is justified in the use of force when and to the extent that he reasonably believes that such conduct is necessary to defend himself ***.” (Emphasis in original.) (72 Ill. 2d at 128, 378 N.E.2d at 515.) An IPI instruction defining “reasonably believes” as “acting as a reasonable man, believes that the described fact exists” was neither tendered nor read to the jury by the court sua sponte. The court noted that, absent a substantial defect in the jury instructions, the court is under no obligation to give an instruction sua sponte which has not been tendered by counsel. A “substantial defect” exists where the failure to tender the instruction resulted in an unfair trial. 72 Ill. 2d at 129-30, 378 N.E.2d at 515.

In Underwood, an additional instruction, defining “reasonably believes,” would not have changed the outcome of the case. On two occasions, the jury was instructed as to the law on self-defense. Moreover, the words “reasonably believes” are meant to be understood by their common meaning. A term which is employed in a general, nontechnical context need not be defined as long as nothing in the instruction obscures its meaning. This is especially true where the applicable Illinois instruction does not instruct that an additional definition is necessary. (People v. Hicks (1987), 162 Ill. App. 3d 707, 713, 516 N.E.2d 807, 812.) In the present case, the IPI instruction on involuntary manslaughter specifically refers to the definitional instruction of “recklessness,” which should accompany it. Moreover, “recklessness” may be commonly understood by a lay person to mean ordinary negligence. A juror, concluding that the defendant’s acts were more than negligent, may have chosen murder, which was the only alternative presented. In actuality, IPI Criminal 2d No. 5.01 defines recklessness as a state of gross negligence or a “gross deviation from the standard of care which a reasonable person would exercise in such a situation.”

In addition, the Carlson case is factually distinguishable. The evidence does not overwhelmingly support a verdict of murder in this case. Here, the evidence is closely balanced, involving only one witness, Karen Rainey, the niece of the victim. Moreover, this involves a single stab wound inflicted during a heated conversation between the defendant and the victim, who was his best friend. Carlson involved a defendant who had just murdered his wife and when approached by police to be arrested, he began shooting, in the presence of many witnesses. In pleading involuntary manslaughter rather than murder, he based his defense on the theory that he pulled out the gun to shoot himself, not the officers.

Based upon the specific facts in this case, we find that the improper closing remarks of the prosecutor, referring to involuntary manslaughter as a “cop-out,” and the failure of the court to define the mental state of recklessness for the jury constituted reversible error. We cannot conclude that, absent these errors, the verdict in this case would have been the same. We, therefore, reverse and remand for a new trial.

Reversed and remanded.

RIZZI, J., concurs.

JUSTICE CERDA,

dissenting:

I dissent because I do not believe defendant was denied effective assistance of counsel for failure to tender a jury instruction defining “recklessness.” I would affirm.

People v. Bolden (1968), 103 Ill. App. 2d 377, 243 N.E.2d 687, is distinguishable from this case because the jury instruction given omitted any criminal intent or mental state, not just the definition of “recklessness.” The involuntary manslaughter instruction which is given in Bolden was as follows:

“The Court instructs the jury, in the language of the statute, that a person who kills an individual without lawful justification, commits involuntary manslaughter if his acts, whether lawful or unlawful, which cause the death, are such as are likely to cause death or great bodily harm to some individual.” Bolden, 103 Ill. App. 2d at 379-80.

The instruction failed to contain the concluding portion of section 9 — 3(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1989, ch. 38, par. 9 — 3(a)), which stated:

“and he performs them (the criminal acts) recklessly.” Bolden, 103 Ill. App. 2d at 380.

There was a complete omission of the word “reckless” in the Bolden involuntary manslaughter instruction. Since the issue of defendant’s concurring recklessness or lack of it was never presented to the jury in any of the instructions, the court ruled that the omission of any mental state in the jury instruction prejudiced defendant.(Bolden, 103 Ill. App. 2d at 381.) Bolden is distinguishable from both People v. Carlson (1980), 79 Ill. 2d 564, 404 N.E.2d 233, and this case.

In Carlson, the attorney for defendant did not tender an instruction defining “recklessly.” The court stated it viewed People v. Underwood (1978), 72 Ill. 2d 124, 378 N.E.2d 513, as controlling on this point. (Carlson, 79 Ill. 2d at 583.) The court further stated: “In Underwood the failure was not to instruct on an essential element of the case but was only a failure to give a definitional instruction on the meaning of ‘reasonably believes’ as used in the self-defense instruction which was given in that case. We held that the failure to sua sponte give the definitional instruction was not error. The same reasoning applies here.” (Carlson, 79 Ill. 2d at 584.) The court further stated that counsel’s failure to present the jury instruction defining “recklessly” did not result in substantial prejudice. Carlson, 79 Ill. 2d at 585.

In this case the jury was instructed on the essential elements involving involuntary manslaughter including mental state. The definition of “recklessly” has not been held to be an essential element that must be given where there is an issue of involuntary manslaughter. The failure of the attorney for defendant to submit the definitional instruction did not result in an unfair trial.

I would affirm the conviction.


source: Caselaw Access Project

author: JUSTICE LINN

license: Public Domain

text:
      In re MARRIAGE OF MARY ANN FLYNN, Petitioner-Appellant, and GEORGE FLYNN, Respondent-Appellee.
    First District (4th Division)
    No. 1—91—2101
    Opinion filed July 16, 1992.

      William J. Gerard, of Gerard & Gerard, of Chicago, for appellant on appeal only.
    Davis, Friedman, Zavett, Kane & McRae, of Chicago (Muriel Kuhs, of counsel), for appellee.
   JUSTICE LINN

delivered the opinion of the court:

The circuit court of Cook County entered a judgment that dissolved the marriage of petitioner, Mary Ann Flynn, and respondent, George Flynn. Prior to the entry of judgment, Mary Ann petitioned the trial court to vacate a prove up hearing on an oral marital settlement agreement. The trial court denied Mary Ann’s petition to vacate the prove up and incorporated the settlement agreement into the judgment.

Mary Ann appeals from the judgment and from the trial court’s denial of her petition to vacate the prove up. She contends: (1) the settlement agreement is unconscionable, and (2) her trial counsel coerced her into settling the case.

We affirm the judgment of the trial court.

Background

The record discloses the following pertinent facts. On August 17, 1989, Mary Ann petitioned the trial court to dissolve her marriage to George. At the time judgment was entered, Mary Ann was 66 years old and George was 54. The dissolution itself was uncontested. Rather, Mary Ann and George disagreed on the issues of asset distribution and maintenance.

Discovery occurred, which included depositions of both parties and extensive production of documents. The trial court held two pretrial conferences, in addition to the conference held on the day of trial. By the time of trial, Mary Ann had been represented by four attorneys in succession. Her fourth attorney and trial counsel was John Bickley.

On April 30, 1991, at approximately 10 a.m., Mary Ann and George, represented by their respective attorneys, appeared in the trial court ready for trial. However, both counsel informed the court that they continued to hope for a settlement. The attorneys asked for additional time to negotiate and the trial court recessed the case. The record indicates that the attorneys spent the day in negotiations, except for a break for lunch. However, the record is silent as to whether Mary Ann and George personally participated in the negotiations.

At approximately 3 p.m., both counsel advised the trial court that they had reached an oral marital settlement agreement. The court held a prove up hearing on the oral settlement. The attorneys questioned Mary Ann and George as to the fairness and voluntariness of the settlement. George readily assented to the settlement.

Mary Ann, during questioning by her attorney, Bickley, generally assented to the fairness and voluntariness of various components of the settlement. When questioned on the issue of maintenance, Mary Ann testified that she understood that: she had a right to ask the trial court to consider maintenance; George was asking her to waive maintenance in exchange for a greater share of the marital assets; and if she waived maintenance, she was barred from asking any court for maintenance in the future.

When Bickley asked Mary Ann whether she was willing to waive maintenance, the following colloquy occurred:

“[Bickley:] Are you willing then to waive maintenance in return for a higher percentage of the proceeds to be acquired by the sale of the assets of this particular marital property?
[Mary Ann:] I’m just — I’m trying to do math in my head and I’m not that good at it.
So, I’m waiving maintenance for all time, no matter what happens to me or what my physical condition is?
[Bickley:] That’s correct. Once you waive maintenance—
[Mary Ann:] For the sake of eight per cent being given to me as opposed to being given to my husband?
[Bickley:] You are in effect being given between eight and ten per cent more of the assets of this estate than you would be entitled to under the current law.
[Mary Ann:] Otherwise I get fifty per cent? Is that—
[Bickley:] You get fifty per cent.
[Mary Ann:] Yes.”

The trial court then explained to Mary Ann that the marital assets would not necessarily be divided equally. Rather, the court would consider the reasonable opportunity of Mary Ann and George to accumulate future assets, and the amount of the marital assets that Mary Ann would require to live comfortably without maintenance. The following colloquy then occurred:

“[Bickley:] Well, the question that is presently pending before the Court, is do you understand now *** that if you waive maintenance today, you can never come before this Court or any other court and ask for an imposition of maintenance for you, do you understand that?
[Mary Ann:] Yes, I understand that. It’s just such a big thing to understand to say yes, and say yes, and I agree, I’ll do it. I’ll never come back again, you know, no matter what my situation is.
[Bickley:] Well, that is why we are here in court, Mrs. Flynn.
[Mary Ann:] Yes.
[Bickley:] We are here to get a dissolution of marriage.
[Mary Ann:] Yes.
[Bickley:] And to reach an accord with respect to all of the property rights between the parties.
[Mary Ann:] All right.
[Bickley:] Do you understand that?
[Mary Ann:] I do understand that.”

During questioning by George’s attorney, Mary Ann again assented to the fairness, voluntariness, and conclusiveness of the settlement. The following colloquy subsequently occurred:

“[Kuhs:] Do you feel that this is a fair settlement of this case under the circumstances?
[Mary Ann:] A fair settlement? Is my answer going to determine anything that is going to happen here?
THE COURT: Do you feel that it is fair and equitable? Are you satisfied with it? Was there any force or coercion used upon you to enter into this agreement?
[Mary Ann:] No. It seems like the best we can do under the circumstances.
THE COURT: Under the circumstances do you feel that it is fair and equitable?
[Kuhs:] No one has threatened you or coerced you to sign this?
[Mary Ann:] No one has threatened me.
[Kuhs:] You are not under the influence of alcohol or any other medication or drugs today, are you?
[Mary Ann:] Nothing at all.
[Kuhs:] Thank you.”

Lastly, at the close of the prove up hearing, the following colloquy occurred:

“[Mary Ann:] May I ask a question? Was the subject of my health brought up?
THE COURT: Well, I would assume it was brought up in the negotiations.
[Mary Ann:] Was it?
[Bickley:] Anything further?
[Kuhs:] Thank you, your Honor.
THE COURT: You’re welcome. Good luck.”

On May 16, 1991, 16 days after the prove up hearing on the oral settlement agreement, Mary Ann filed, ■pro se, a petition to vacate the prove up. She claimed that the settlement was unconscionable and that Bickley coerced her into settling. On May 29, the trial court denied Mary Ann’s petition to vacate.

On May 30, 1991, with the settlement agreement reduced to writing and incorporated into the judgment, the trial court entered the dissolution judgment. The court specifically found that the settlement was not unconscionable and that Mary Ann and George entered into the settlement freely and voluntarily. Mary Ann timely appeals from the judgment and from the trial court’s denial of her petition to vacate the prove up.

Opinion

The applicable legal principles are quite settled. The law favors the peaceful settlement of marital disputes. Indeed, section 502 of the Illinois Marriage and Dissolution of Marriage Act (the Act) (Ill. Rev. Stat. 1989, ch. 40, par. 502) is intended to encourage parties to reach an amenable settlement of their rights. In re Marriage of Riedy (1985), 130 Ill. App. 3d 311, 313, 474 N.E.2d 28, 30.

When a party seeks to vacate or modify a property settlement incorporated into a dissolution judgment, the settlement is presumed valid. A reviewing court may not reverse the trial court’s judgment merely because different conclusions could be drawn from the evidence. Rather, the modification of a dissolution judgment rests in the sound discretion of the trial court; a reviewing court will not disturb the trial court’s findings unless the evidence clearly requires. (Riedy, 130 Ill. App. 3d at 313, 474 N.E.2d at 30.) A reviewing court will set aside a settlement agreement only if it is shown that the agreement was procured through coercion, duress, or fraud, or if the reviewing court finds that the agreement is contrary to any rule of law, public policy, or morals (In re Marriage of Morris (1986), 147 Ill. App. 3d 380, 389, 497 N.E.2d 1173, 1178; Riedy, 130 Ill. App. 3d at 313, 474 N.E.2d at 30), or is unconscionable (Ill. Rev. Stat. 1989, ch. 40, par. 502(b)).

I

Mary Ann first claims that the settlement agreement is unconscionable. She argues that the settlement is unconscionable because: (A) it did not provide for maintenance, and (B) it is generally unfair and inequitable.

A

Mary Ann argues that the settlement was unconscionable because it did not provide for maintenance. Mary Ann claims that she is enti-tied to “permanent maintenance on the basis of her being 67 years of age, unlikely employment potential and ill-health. George is 55 years of age and a gainfully employed professor of music who is quite capable of providing Mary Ann with support.”

Section 504(a) of the Act provides that a court may grant maintenance only if it finds that the spouse seeking maintenance lacks sufficient property, including marital property apportioned to her, to provide for her reasonable needs; is unable to support herself through appropriate employment; or is otherwise without sufficient income. (Ill. Rev. Stat. 1989, ch. 40, par. 504(a).) The Act intends that post-marital support be accomplished through a just distribution of marital assets wherever possible, rather than maintenance. Kujawinski v. Kujawinski (1978), 71 Ill. 2d 563, 576, 376 N.E.2d 1382, 1388; In re Marriage of Smith (1981), 100 Ill. App. 3d 1126, 1131, 427 N.E.2d 1262, 1267; Ill. Ann. Stat., ch. 40, par. 504, Historical & Practice Notes, at 524 (Smith-Hurd 1980).

After carefully reviewing the record, we cannot accept Mary Ann’s argument that the absence of maintenance, by itself, renders the settlement agreement unconscionable. The property distribution provides Mary Ann with a cash payment, proceeds from the sale of the real estate, several bank accounts, several certificates of deposit, an individual retirement account, and half of George’s pension. According to Mary Ann’s own calculations, she will receive, from her half of George’s pension alone, a lifetime annual annuity income of approximately $8,400. We further note that, due to Mary Ann’s age, she is able to begin immediately to withdraw the monthly annuity. The record shows that the marital assets apportioned to Mary Ann appear to generate income sufficient to meet her needs. See In re Marriage of Harding (1989), 189 Ill. App. 3d 663, 679-80, 545 N.E.2d 459, 469-70; Smith, 100 Ill. App. 3d at 1131, 427 N.E.2d at 1267.

B

Mary Ann further argues that the settlement is unconscionable because it is generally unfair and inequitable. However, unfairness or inequality does not render a marital settlement agreement unconscionable. Rather, a settlement “is unconscionable when it is improvident, totally one-sided or oppressive.” Riedy, 130 Ill. App. 3d at 317, 474 N.E.2d at 33.

Applying these principles to the case at bar, we conclude that the settlement was not unconscionable. Mary Ann essentially waived maintenance in exchange for a greater share (approximately 62%) of the marital assets. We cannot say that the settlement is improvident, totally one-sided, or oppressive. We uphold the trial court’s finding that the settlement agreement is not unconscionable.

II

Mary Ann next contends her trial counsel coerced her into settling the case. As examples of this alleged coercion, Mary Ann refers to the several portions of the prove up hearing which we previously quoted.

Coercion or duress includes the imposition, oppression, undue influence, or the taking of undue advantage of the stress of another, whereby that person is deprived of the exercise of her free will. Further, stress is common in dissolution proceedings; stress alone does not coercion make. The burden of proving duress, by clear and convincing evidence, is on the person asserting it. Riedy, 130 Ill. App. 3d at 314, 474 N.E.2d at 30-31.

After carefully reviewing the record, we cannot say that the record contains evidence of coercion that is so clear and convincing that the settlement agreement should be set aside. This court has noted that “those cases in which evidence of coercion was found usually involved hastily contrived agreements occurring only hours before the hearing.” (Riedy, 130 Ill. App. 3d at 314, 474 N.E.2d at 31.) However, the settlement in the present case was not by any means “hastily contrived.” The settlement was the result of extensive discovery and several pretrial conferences.

Moreover, this case had been in the trial court for nearly two years when the settlement was finally reached. Mary Ann was represented by counsel throughout those proceedings. If Mary Ann’s attorneys could have deprived her of the exercise of her free will, Mary Ann could have been coerced into settlement long before the day of trial. See In re Marriage of Chapman (1987), 162 Ill. App. 3d 308, 316-17, 515 N.E.2d 424, 430-31.

Lastly, the above-quoted portions of the prove up show that Mary Ann understood the terms and consequences of the settlement agreement. Mary Ann was not enthusiastic about that portion of the settlement which pertained to maintenance. However, she acknowledged that the agreement was “the best we can do under the circumstances.” Mary Ann understood that she had the right to have a trial to determine asset distribution. She stated that no one had threatened her and that she was not under the influence of any medication or other substance.

Mary Ann, however, chose to settle her case rather than accept the uncertainty of a trial. The anxiety inherent in making this choice does not, by itself, constitute coercion. (See Morris, 147 Ill. App. 3d at 392-93, 497 N.E.2d at 1179-80.) The fact that Mary Ann “has since changed her mind should not render the settlement invalid.” (Harwich v. Horwich (1979), 68 Ill. App. 3d 518, 522, 386 N.E.2d 620, 622.) We uphold the trial court’s finding that Mary Ann entered into the settlement agreement freely and voluntarily. See Riedy, 130 Ill. App. 3d at 314-15, 474 N.E.2d at 31.

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

Affirmed.

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


author: JUSTICE LORENZ

text:
    CARMECE PERRY, Plaintiff-Appellant, v. PUBLIC BUILDING COMMISSION OF CHICAGO, Defendant-Appellee (The City of Chicago et al., Defendants).
    First District (5th Division)
    No. 1—90—3371
    Opinion filed July 17, 1992.
    Rehearing denied August 26, 1992.

      Tyrrell, Etchingham & Associates, of Chicago (Thomas J. Tyrrell and Jeffrey D. Javors, of counsel), for appellant.
    Barry M. Lewis & Associates, of Chicago (Kurt Olsen, of counsel), for appellee.
   JUSTICE LORENZ

delivered the opinion of the court:

In this slip-and-fall case, plaintiff’s original complaint (filed on the last day of the applicable statute of limitations) incorrectly designated the defendant Public Building Commission of Chicago as the “Cook County Public Building Commission.” The trial court found that the incorrect designation was a misidentification of a party and not a misnomer under section 2 — 401 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 401(b)). Therefore, the trial court dismissed the Public Building Commission of Chicago pursuant to the expiration of the statute of limitations. The trial court also entered an order pursuant to Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)), and plaintiff appealed. We considered whether the trial court erred in holding that the incorrectly designated defendant was a misidentification of a party and not a misnomer.

We affirm.

On January 26, 1988, Carmece Perry (plaintiff) slipped and fell while walking in the concourse of the Richard J. Daley Center in Chicago. On January 26, 1989, the last day of the applicable statute of limitations for claims against municipal corporations, plaintiff filed suit to recover for her injuries. The complaint named three defendants: “City of Chicago,” “County of Cook,” and “Cook County Public Building Commission.” The language in the complaint referred to the defendants as those entities which “owned, operated, maintained, controlled” or otherwise asserted an interest in the Daley Center. Plaintiff issued summons on these defendants addressed as follows:

City of Chicago County of Cook County of Cook

Walter S. Kozubowski Stanley T. Kusper Building Commission

City Clerk County Clerk Stanley T. Kusper

107 City Hall 118 N. Clark St. County Clerk

Chicago, IL 60602 Rm. 434 118 N. Clark St.

Chicago, IL 60602 Rm. 434

Chicago, IL 60602

All three summons were returned as served on a registered agent or authorized person.

Also on January 26, 1989, plaintiff completed a City of Chicago form called “Notice of Claim For Personal Injuries.” This form stated: “Please take notice that an action for damages on account of personal injuries will be brought against the CITY OF CHICAGO.” Plaintiff added a brief statement of the facts of her claim. Plaintiff filed the form with the city clerk, the corporation counsel of Chicago, the Cook County clerk, the Cook County Board of Commissions, and the “Public Building Commission”; the stamp of each office, including the stamp of the “Public Building Commission,” appears on the face of the completed form indicating the date of January 26, 1989.

Defendants Cook County and the City of Chicago both filed an appearance with the circuit court. Plaintiff filed a motion for a default judgment against the Cook County Public Building Commission. This motion was withdrawn prior to its being presented.

Cook County filed a motion for summary judgment and attached to it the affidavit of Stephen S. Crane stating that Cook County did not own or manage the Daley Center. Subsequently, plaintiff deposed Crane and learned that the actual owner of the Daley Center was not named the “Cook County Public Building Commission” but, instead, was named the “Public Building Commission of Chicago.” Therefore, plaintiff drafted an order providing (1) “Cook County shall be voluntarily dismissed” and (2) “plaintiff is granted leave to file [an] amended complaint pursuant to [section] 2 — 401 to correct misnomer.” The order was signed by the trial judge and dated September 29, 1989. On that same day, plaintiff filed her amended complaint which deleted the words “Cook County” and added the words “of Chicago” to all references to the Public Building Commission. Plaintiff also issued an alias summons addressed as follows:

Public Building Commission

Richard J. Daley Center

66 W. Washington St.

Room 705

Chicago, IL 60601 The alias summons was served on October 4, 1989, along with both the original and amended complaints.

On November 28, 1989, the Public Building Commission of Chicago (defendant) filed a motion to dismiss pursuant to Supreme Court Rule 103(b) (134 Ill. 2d R. 103(b)), contending that plaintiff was not diligent in obtaining service until over eight months after the statute of limitations expired. Two days later, defendant filed its appearance (designated as only Public Building Commission) and obtained leave to vacate any defaults against it. After plaintiff filed her response to the Rule 103(b) motion to dismiss, the parties appeared before the trial court. Then, defendant informed the court that it would file a motion to dismiss pursuant to section 2— 619(a)(5) of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 619(a)(5)), contending that the plaintiff’s claim against it was barred by the statute of limitations. The court granted leave to file the motion and set a briefing schedule.

Plaintiff argued that the original complaint was timely filed and that the incorrect designation of defendant was a misnomer subject to correction pursuant to section 2 — 401 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 401(b)). The trial court found instead that the incorrect designation was a mistaken identification of a party. Therefore, the court granted the section 2— 619(a)(5) motion to dismiss in favor of defendant. The Rule 103(b) motion to dismiss was thereby deemed moot. There is no indication in the record that plaintiff argued the relation back doctrine pursuant to section 2 — 616(d) (Ill. Rev. Stat. 1989, ch. 110, par. 2— 616(d)), in the trial court.

Opinion

Section 2 — 401 of the Code of Civil Procedure provides:

“(b) 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. 1989, ch. 110, par. 2— 401(b).)

Courts have held that section 2 — 401 is narrow and applies only where an action is brought and summons is served upon the party intended to be made defendant, thus giving actual notice of the lawsuit to the real party in interest, but the process and complaint do not refer to the person by his correct name. (Ashley v. Hill (1981), 101 Ill. App. 3d 292, 427 N.E.2d 1319.) The party’s intent is the ultimate dispositive factor and must be gleaned from objective manifestations. (Hatcher v. Kentner (1983), 120 Ill. App. 3d 571, 458 N.E.2d 131.) Furthermore, section 2 — 401 does not embrace naming the wrong party, provision for which is made in section 2 — 616. (See Ill. Ann. Stat., ch. 110, par. 2 — 401, Historical & Practice Notes, at 330 (Smith-Hurd 1983).) Where section 2 — 401 applies, service of summons after the expiration of the statute of limitations does not bar suit providing that the plaintiff used reasonable diligence in obtaining service upon the proper defendants; however, in cases of mistaken identity, service upon proper defendants is required before expiration of the time provided in the statute of limitations. Barbour v. Fred Berglund & Sons, Inc. (1990), 208 Ill. App. 3d 644, 567 N.E.2d 509.

Here, plaintiff argues that three factors established that section 2 — 401 applies: (1) the party named in the complaint (“Cook County Public Building Commission”) does not exist; (2) the complaint described the defendants as the owners and managers of the Daley Center; and (3) the defendant received actual notice of plaintiffs claim. We will address each of these factors before setting forth our own analysis.

First, plaintiff, relying on Clinton v. Avello (1982), 105 Ill. App. 3d 336, 434 N.E.2d 355, argues that because the “Cook County Public Building Commission” does not exist she could not have intended to sue it as the real party in interest. In Clinton, the plaintiff argued that he merely misnamed the real party in interest even though the party named in the complaint in fact existed. The court commented: “The plaintiff’s rather subjective explanation of who [sic] he intended to sue cannot prevail over a somewhat more obvious conclusion that he intended to sue the specific party who [sic] he named in his complaint and who in fact exists.” (Clinton, 105 Ill. App. 3d at 338, 434 N.E.2d at 356.) Plaintiff’s reliance on Clinton is misplaced. Our court has subsequently stated:

“We do not read the *** language in Clinton as the establishment of a correlative rule *** that if there is a claim of mistaken identity, then the party mistakenly identified must exist.” (Barbour, 208 Ill. App. 3d at 650, 567 N.E.2d at 513.)

In Barbour, the plaintiff designated defendant under a variety of names, none of which constituted a legal entity. The court still found that plaintiff did not misname the right party but instead named the wrong party. Similarly, although the plaintiff here designated a nonexisting defendant, this is not sufficient evidence that she merely misnamed the real party in interest.

Second, the language in the complaint describing the defendants as the owners and managers of the Daley Center does not establish plaintiffs intent to sue the real party in interest. The plaintiff in Clinton, who was suing to recover for injuries sustained in a car accident, made the same argument. The plaintiff contended that he could not have named the wrong party because the complaint stated he intended to sue the person who was in the use, possession, operation, and control of the vehicle. The court responded:

“We do not believe that such general descriptive language in a complaint is sufficient evidence of who [sic] the plaintiff intended to sue. It merely begs the question for a plaintiff to contend that he intended to sue the party who caused his injuries.” (Clinton, 105 Ill. App. 3d at 338, 434 N.E.2d at 356.)

Similarly, we find that plaintiff’s argument here merely begs the question of whom she intended to sue.

Third, we do not believe that defendant received actual notice as argued by plaintiff. The two possibilities for notice here were the alias summons and the City of Chicago form “Notice of Claim For Personal Injuries.” However, the alias summons was served on defendant after the statute of limitations had expired which, as stated above, is proper only if section 2 — 401 was otherwise satisfied. As we shall see, we do not believe that section 2 — 401 was otherwise satisfied. Furthermore, although the City of Chicago form was filed with defendant on the last day of the statute of limitations, it stated that a claim would be made only against the City of Chicago. Therefore, the form did not constitute notice to defendant.

Contrary to plaintiff’s arguments, we believe that the following objective manifestations in the complaint and process establish that plaintiff misidentified the real party in interest. Although the “Cook County Public Building Commission” does not exist, “Cook County” does exist. Furthermore, there are numerous commissions associated with Cook County; there are also numerous commissions associated with the City of Chicago. With this in mind, we believe that plaintiff misidentified defendant as an entity associated with Cook County instead of properly identifying defendant as an entity associated with the City of Chicago.

In support thereof, we note that plaintiff clearly addressed the initial summons for this defendant to Cook County; plaintiff added the name of Stanley T. Kusper, the clerk of Cook County, to receive the summons. The case law also supports our analysis. In several cases the courts have concluded that the plaintiffs misidentified the real party in interest where they addressed the summons to an incorrect but existing person. (E.g., Barbour, 208 Ill. App. 3d 644, 567 N.E.2d 509; Ashley, 101 Ill. App. 3d 292, 427 N.E.2d 1319.) In other cases the courts have concluded that the plaintiffs merely-misnamed the real party in interest where they correctly addressed the summons. (E.g., Thielke v. Osman Construction Corp. (1985), 129 Ill. App. 3d 948, 473 N.E.2d 574; Ellis v. Borisek (1991), 220 Ill. App. 3d 48, 580 N.E.2d 899; Hatcher v. Kentner (1983), 120 Ill. App. 3d 571, 458 N.E.2d 131.) Again, the address on the summons here shows that plaintiff misidentified the real party in interest.

We are cognizant that the trial judge signed an order providing that plaintiff could amend her complaint “pursuant to [section] 2— 401 to correct misnomer.” We point out that plaintiff drafted the order after the statute of limitations had expired and is therefore not directly relevant to whom defendant intended to sue when she filed her original complaint. The trial court, on its part, entered the order without the benefit of hearing arguments on the issue. At any rate, the order in no way restricts this court’s review of the issue on appeal.

Finally, the fact that defendant filed papers in the trial court misnaming itself the “Public Building Commission” does not affect or overcome our conclusion that plaintiff mistakenly identified the real party in interest at the time she filed her original complaint.

In sum, plaintiff here did not misname the right party but instead named the wrong party. Therefore, the trial court correctly dismissed defendant pursuant to an expiration of the statute of limitations. It follows that it is not necessary for us to address defendant’s Rule 103(b) motion to dismiss. Also, because plaintiff did not raise section 2 — 616(d) in the trial court, plaintiff has waived the right to argue it on appeal.

Affirmed.

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


author: JUSTICE McMORROW

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL RENTERIA, Defendant-Appellant.
    First District (4th Division)
    No. 1—91—0993
    Opinion filed July 16, 1992.

      Michael J. Pelletier and Ann C. McCallister, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Christine Cook, and Dori Leo, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McMORROW

delivered the opinion of the court:

Following a bench trial, defendant was convicted of aggravated battery of a child (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 4.3(a)) and sentenced to six years’ imprisonment. On appeal, defendant argues that his conviction should be reversed because the State’s evidence was insufficient to prove him guilty beyond a reasonable doubt. In the alternative, defendant contends that he is entitled to a new sentencing hearing because the trial court erroneously applied amendments to the pertinent statutory provision (see Pub. Acts 86 — 575, 86 — 1003, effective January 1, 1990, amending Ill. Rev. Stat. 1989, ch. 38, par. 12 — 4.3(a)), that enhanced aggravated battery of a child from a Class 2 felony to a Class 1 felony and provided for a greater minimum term of imprisonment, although these amendments were not in effect at the time of the incident for which defendant was convicted. We affirm defendant’s conviction, but vacate his sentence and remand for a new sentencing hearing.

Defendant was convicted for the aggravated battery of S.M. that allegedly occurred at approximately 10 p.m. on October 11, 1989, when S.M. was 2xk months old. It was undisputed at trial that at that time, defendant was 19 years of age and was living with the child’s mother, B.M., in an apartment in Chicago. It was also undisputed that defendant was not the natural father of the baby.

Officer Joseph Lux of the Chicago police department testified that on October 13, 1989, he received a call from the Illinois Department of Children and Family Services reporting that S.M. had sustained injuries a few days earlier. Officer Lux went to the residence of defendant and the child’s mother and, in the presence of the mother, told defendant that he was investigating how the child was injured. Officer Lux testified that he posed to defendant a broad, general question regarding what had happened. According to Officer Lux, defendant told Lux that the child had fallen off the bed on the evening of October 11 at approximately 10 p.m. Officer Lux testified that defendant showed him the bed, which was standard sized and stood approximately 2V2 to 3 feet high. The officer further testified that defendant informed him that defendant had left the child on the bed and gone into the kitchen area to get the baby’s bottle, and that defendant then heard “something like a commotion” and discovered that the baby had rolled off the bed and onto the floor. Officer Lux stated that defendant told the officer that the child’s mother had not been home at the time, but had gone to the store.

Officer Lux testified that thereafter, on October 25, 1989, he had a second conversation with defendant following defendant’s admonition and waiver of his Miranda rights. Officer Lux stated that at this second conversation, defendant told the officer that the defendant “didn’t do anything to hurt the child” and that he “didn’t mean to hurt the child.” Officer Lux testified that he told defendant that he did not believe him, because medical personnel reported the incident as a case of “shaken baby syndrome.” Officer Lux stated that defendant then said that he had been getting the baby a bottle and that the baby would not stop crying. Defendant also told Officer Lux that the defendant was angry and frustrated about his job and his financial condition, and that “in anger he took it out on the child by picking the child up and shaking the kid hard.” Officer Lux testified that defendant told him the baby had stopped breathing at one point, and that the defendant blew on the child’s face. Officer Lux testified that he then placed defendant under arrest.

The State also presented the testimony of Dr. Mark Hershenson, who specializes in pediatric critical care and treated the baby following its admission to the hospital on the night of October 11, 1989. Dr. Hershenson testified that when he examined the child on October 12, the baby was comatose, had increased pressure in his brain from swelling, and had a bruise and swelling over the right eye. The physician testified that a computerized axial tomography scan (hereinafter CAT scan) revealed collections of blood in the back and on the left front side of the brain, as well as collections of blood between the two halves of the brain. Dr. Hershenson testified that the child’s brain was extremely swollen on the complete left side and also on the right front of the brain. Dr. Hershenson also discovered one small skull fracture at the back of the child’s head, and testified that there might also have been a second small skull fracture at the back of the baby’s head. The physician performed an ophthalmoligic exam that revealed bleeding in the back of the child’s left eye.

Dr. Hershenson testified as an expert that, in his opinion and to a reasonable degree of medical certainty, the child suffered severe brain injuries that were the result of shaken baby syndrome. The physician based this diagnosis on three factors: (1) the CAT scan results, which showed bleeding in different areas of the brain as well as swelling of the brain; (2) the retinal hemorrhages, and the bleeding in the eye, which “most of the time means shaking”; and (3) the fact that the injuries were “way out of proportion” to the history given, i.e., that the baby had rolled off the bed onto the floor. Dr. Hershenson stated that in his opinion and experience, the child’s injuries would have required “extremely violent shaking, way out of proportion to anything that would be considered normal, such as a child swinging or a child moving in a car or even a resuscitative effort.” Dr. Hershenson testified that a person who attempted to revive the child by shaking him would have had to undertake “extremely violent” shaking to cause the “very massive brain injuries” suffered by the child in the instant cause. Dr. Hershenson testified that in his opinion, within a reasonable degree of medical certainty, the child’s skull fractures indicated that after the baby was shaken, it was “thrown against another object, be it the crib, or the bed, or the floor, or the wall, or something like that.”

Dr. Hershenson also testified that in his experience and based upon pertinent literature within the field of pediatric critical care, it was his opinion to a reasonable degree of medical certainty that the child’s injuries were not consistent with falling from a bed and that the injuries “could not occur from falling from a bed.” The physician testified that in his experience, he had never seen similar or identical injuries caused by falling from a bed, nor did medical literature report such an occurrence. Dr. Hershenson stated that medical literature indicated that, in studies of babies who have fallen from hospital beds, only a very small percentage had fractures, and none of those children had the “severe brain bleeding and swelling that we see in this case.” The doctor testified that the baby will probably be mentally retarded from the injuries, that he may suffer some seizures, and that there were also questions about whether the child could see and hear appropriately. Dr. Hershenson testified that the child’s prognosis for a complete recovery of these conditions “would be most impossible.”

In his defense, defendant presented the testimony of Dr. Demetra Soter, also a specialist in pediatric trauma and critical care. She testified that she had reviewed neither the results of the CAT scan nor the X rays taken of the child, but had reviewed only the reports of these procedures. Based upon her review of the reports of the X rays and CAT scan taken of the child, it was Dr. Soter’s opinion that the child had not sustained any skull fractures, since none were explicitly mentioned in the CAT scan reports or the X-ray reports. Dr. Soter testified that the medical records indicated that the baby had sustained injuries causing abnormal swelling of the brain and retinal hemorrhaging. Dr. Soter testified that these conditions “all fit together with shaking baby syndrome” and that the “injuries fit with the child being vigorously shaken for whatever reason.”

Dr. Soter defined “shaken baby syndrome” as a young child who “is vigorously shaken back and forth,” which causes “the brain [to] bounce within the skull and the bridging vessels that go from the brain to the skull [to] tear because of the movement of the brain in the skull in separate directions.” Dr. Soter demonstrated to the court the degree of shaking necessary to cause such injuries in a young child and characterized it as “significant.” When asked to classify the degree of severity of the child’s injuries in the instant cause in comparison to other cases of shaken baby syndrome observed by the physician during her career, Dr. Soter stated:

“When he was brought in, he had already blown one pupil and had partially because of the swelling in his brain, pushed part of his brain out of the brain stem. His — one of his — one pupil was dilated. He was — he was quite — it was quite a severe injury. The next step would have been the second pupil blowing and death. So, he was in the top — top third of severity of shaking. *** Of brain injury.”

Dr. Soter testified that, with regard to the degree of shaking necessary to cause such injuries, the “child would have to whip back and forth more than a few times to get up enough velocity to cause such brain damage.” According to the physician, “[i]t wouldn’t have to be over a minute or two, but a couple of seconds would probably be too short.”

Defendant testified at trial that on the evening of October 11, 1989, he had gone with the child and its mother to the grandmother’s home for dinner. Defendant stated that while at dinner, he had mentioned that he was starting a new job the following day and that he was excited about doing so. Upon returning to their own apartment at approximately 9:35 p.m., the baby’s mother went to the local store and defendant remained in the apartment to change the child’s diapers. Defendant testified that he often participated in the baby’s care, including diaper changing, washing of the child, and feeding, and he provided the funds necessary to support the baby and its mother.

Defendant stated that after changing the baby’s diapers, defendant left the baby on the bed and went into the kitchen to get the child’s bottle. Defendant stated that he heard a noise and loud crying, and discovered that the baby had rolled off the bed onto the floor.

Defendant stated that he ran into the bedroom and picked up the baby to see if he was all right, and placed the child back on the bed. Defendant testified that he saw that the baby was holding his breath and turning red, so he blew on and “lightly brushed” his hand over the baby’s face. He then noticed that the child was turning blue and had stopped breathing entirely. Defendant stated that he became terrified that the child was going to die, and that the “only thing” he could “think of doing” was to “pick him up and shake him.” Defendant testified that he picked up the child and shook him in order to have him start breathing again, and that the baby then began to breathe. Defendant stated that he went back to get the child’s bottle and when he returned, the child had stopped crying and looked like he was in “a daze.” Defendant testified that he noticed that the baby was not responding or moving his arms or legs. Defendant stated that he listened to the baby’s heartbeat and that it was “much slower than a normal baby’s heartbeat is.” Defendant testified that he wrapped the child in a blanket and that, when the mother returned a few moments later, defendant told her that they would have to go to the hospital because the baby had fallen off the bed. Defendant stated that he remained at the hospital that night until approximately 5 to 7 a.m. the next morning.

Defendant testified that he spoke to Officer Lux a few days after the incident in the company of the child’s mother. At that time, defendant told the officer that the child had fallen off the bed, that the baby stopped breathing, and that the defendant revived him. Defendant stated that he did not deny to the officer that he had shaken the baby.

On cross-examination, defendant acknowledged that he had been “angry because he [the baby] was not breathing.” Defendant stated that he shook the child for “a matter of 3 or 4 seconds.” Defendant testified that there had been instances in the past where the child had held his breath for a few seconds, and that the baby would do so because he became frustrated or angry while he was being changed. Defendant further said that, on these prior occasions, no one would shake the child violently to revive him, and that the child was never taken to the hospital.

The child’s mother, B.M., corroborated defendant’s testimony regarding events preceding her departure from the apartment to go to the store. B.M. testified that when she returned, defendant told her that the baby had fallen from the bed and that he had to be taken to the hospital. B.M.’s mother also testified that defendant appeared to be in a good frame of mind that evening because he was starting a new job the next day. In addition, both B.M. and her mother testified that the defendant often undertook various aspects of the child’s daily care, including changing the baby’s diapers. They also confirmed that, in the past, the child had occasionally held his breath when the baby was angry, but that the child would resume breathing after a few seconds and never required special efforts to revive him.

Based upon this evidence, the trial court judge, sitting as finder of fact, determined that the State’s evidence proved defendant guilty of aggravated battery of a child beyond a reasonable doubt. Following a hearing, the trial court sentenced defendant to six years’ imprisonment. This appeal followed.

Defendant argues that the State’s evidence was insufficient to prove him guilty beyond a reasonable doubt of aggravated battery of a child. Upon review, we must consider all of the evidence in the light most favorable to the State in order to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. It is not the function of a reviewing court to weigh the evidence or resolve conflicts in the evidence, nor to determine which witness provided more credible testimony. Rather, it is the fact finder’s province to resolve conflicts, weigh the evidence, and draw reasonable inferences therefrom. On appeal, a defendant’s criminal conviction should be vacated only if the evidence is so improbable or unsatisfactory that it creates a reasonable doubt of the defendant’s guilt. Jackson v. Virginia (1979), 443 U.S. 307, 61 L. Ed. 2d 560, 99 S. Ct. 2781; People v. Young (1989), 128 Ill. 2d 1, 538 N.E.2d 453; People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267.

Aggravated battery of a child is defined as follows: A person is considered to act intentionally “to accomplish a result or engage in conduct described by the statute defining the offense, when his conscious objective or purpose is to accomplish that result or engage in that conduct.” (Ill. Rev. Stat. 1989, ch. 38, par. 4 — 4.) A person acts knowingly with respect to the result of his conduct “when he is consciously aware that such result is practically certain to be caused by his conduct.” (Ill. Rev. Stat. 1989, eh. 88, par. 4 — 5(b); see People v. Psichalinos (1992), 229 Ill. App. 3d 1058; People v. Pratt (1991), 213 Ill. App. 3d 69, 571 N.E.2d 1190.) Both of these definitions are consistent with the rule that a defendant is presumed to intend the natural and probable consequences of his acts. See, e.g., People v. Jackson (1991), 145 Ill. 2d 43, 86-87, 582 N.E.2d 125.

“Any person of the age 18 years and upwards who intentionally or knowingly, and without legal justification and by any means, causes great bodily harm or permanent disability or disfigurement to any child under the age of 13 years *** commits the offense of aggravated battery of a child.” (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 4.3(a).)

On appeal, defendant acknowledges that he shook the child after it had fallen from the bed and had apparently stopped breathing. Defendant contends that he shook the child only briefly to revive the baby’s breathing. Defendant argues that the State’s evidence was insufficient because there was no testimony to establish that defendant intended or knew that his shaking the child would cause the baby to suffer great bodily harm or permanent disability. Defendant claims that his conduct was at most negligent or reckless.

Based upon our review of the record, and considering the evidence in the light most favorable to the State, we find sufficient evidence to support the fact finder's determination that the defendant intentionally or knowingly caused the child great bodily harm or permanent disability during the incident that occurred on October 11, 1989. Defendant acknowledged in his trial testimony that he shook the child when it had stopped breathing after the baby had apparently rolled off the bed and fallen on the floor. Officer Lux testified that defendant told the officer that the defendant had been angry about his job status and that defendant “took it out” on the child by “shaking the kid hard.” Although the testimony of defendant, as well as the child’s mother and grandmother, contradicted Officer Lux’s testimony regarding defendant’s frame of mind over his job status, it was the role of the fact finder to resolve this conflict. Moreover, defendant admitted at trial that he shook the child because he was “angry” that the baby would not stop crying. Consequently, there was sufficient evidence from which the finder of fact could have reasonably concluded that defendant did not shake the child simply to revive the baby’s lapsed breathing.

With regard to whether defendant intended or knew that his shaking the child would cause the baby to sustain great bodily harm or permanent disability, we note that an accused’s knowledge and intent can be reasonably inferred from, and are often proved by, the circumstances surrounding the incident including the nature and degree of severity of the victim’s injuries. (See, e.g., People v. West (1990), 137 Ill. 2d 558, 585-86, 560 N.E.2d 594; People v. Flores (1988), 168 Ill. App. 3d 284, 289, 522 N.E.2d 708.) Both Dr. Soter, the defendant’s expert, and Dr. Hershenson, the State’s expert, testified that the child had suffered shaken baby syndrome and had sustained massive brain injuries as well as retinal hemorrhaging. In addition, Dr. Soter specifically testified that the child here “had already blown one pupil” and that swelling in his brain had “partially *** pushed part of his brain out of the brain stem.” Dr. Soter related that “it was quite a severe injury.”

In addition, both of the physicians agreed that the child’s severe brain injuries could only have been caused by shaking the child for more than a few seconds. Dr. Hershenson stated that the baby must have been “violently shaken” in order to cause the child’s severe brain injuries. Dr. Soter testified that the baby’s extensive injuries were caused by “significant” shaking, and stated that the “child would have to whip back and forth more than a few times to get up enough velosity to cause such brain damage.”

Dr. Hershenson also testified that the child will probably be mentally retarded and that the prognosis for complete recovery is “most impossible.” In addition, Dr. Hershenson testified that the child’s skull fractures were probably caused by the baby having been shaken and then “thrown against another object,” such as the crib, bed, floor, or wall. Although defendant’s expert, Dr. Soter, testified that in her opinion the child had not suffered skull fractures, it was the province of the trial court, sitting as finder of fact, to resolve this conflict in the testimony.

The fact finder could also have found persuasive Dr. Hershenson’s testimony that the child’s severe brain injuries could not have resulted from efforts to resuscitate the baby once it had stopped breathing. Although defendant claims that Dr. Soter testified that brain injuries have resulted from misguided efforts to revive a child whose breathing has lapsed, the record does not indicate that Dr. Soter gave such testimony. According to the transcript, Dr. Soter testified at trial that she had encountered instances where persons had “claimed” that they had shaken the child in an effort to revive lapsed breathing. Dr. Soter did not testify that, in her medical experience, she had encountered an instance where injuries consistent with shaken baby syndrome had, in fact, been caused by efforts to revive a baby that had stopped breathing.

In light of these considerations, we are unable to accept defendant’s claim that his conduct was reckless rather than intentional or knowing. In our view, the evidence of record was sufficient to support the fact finder’s conclusion that the defendant violently shook the baby for more than a few seconds, that the defendant also then threw the child against an object, and that the defendant intended or knew that such acts would cause the child to suffer great bodily harm or permanent disability. In addition, the defendant’s actions after the incident, where defendant checked the child’s heartbeat, wrapped the child in a blanket, and immediately took the child to the hospital upon the mother’s return, demonstrate that the defendant realized the injuries he had inflicted upon the child were so grave that the baby required emergency medical assistance. We find the State’s evidence sufficient to prove the defendant guilty beyond a reasonable doubt of aggravated battery of a child. (See People v. West (1990), 137 Ill. 2d 558, 560 N.E.2d 594.) Accordingly, we affirm his conviction.

The defendant also argues that his sentence should be reversed and that he should receive a new sentencing hearing. Defendant contends that the trial court erroneously applied the amended statute that enhances the offense of aggravated battery of a child from a Class 2 felony to a Class 1 felony and increases the minimum term of imprisonment. (See Pub. Acts 86 — 575, 86 — 1003, effective January 1, 1990, amending Ill. Rev. Stat. 1989, ch. 38, par. 12 — 4.3(a).) The State confesses error in this point. Consequently, we vacate defendant’s sentence and remand the matter for a new sentencing hearing.

Affirmed in part; vacated in part and remanded.

JIGANTI, P.J., and LINN, J., concur.


author: JUSTICE MANNING

text:
    WILLIAM MYERS, Plaintiff-Appellant, v. PUTZMEISTER, INC., d/b/a Thomsen Equipment, et al., Defendants-Appellees (Original Concrete Pumping Service, Inc., Defendant).
    First District (1st Division)
    No. 1—91—1986
    Opinion filed July 6, 1992.

      Alan C. Mendelson, of Chicago, for appellant.
    Katz, Randall & Weinberg, of Chicago (Lawrence M. Karlin, of counsel), for appellees.
   JUSTICE MANNING

delivered the opinion of the court:

Plaintiff, William Myers, brought this action against Putzmeister to recover damages for injuries he sustained while operating a cement pump which was manufactured by Putzmeister’s predecessor. Putz-meister had purchased the assets of the predecessor pursuant to a sales agreement and bankruptcy court order. Plaintiff also sued the owner of the pump, Original Concrete Pumping Service (Original); however, Original is not a part of this appeal. The trial court granted Putzmeister’s motion to dismiss the amended complaint, with prejudice, from which this Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)) appeal is taken.

The sole issue presented on review is whether the trial court properly granted Putzmeister’s motion to dismiss the complaint where it found that under Illinois law (see, e.g., Hernandez v. Johnson Press Corp. (1979), 70 Ill. App. 3d 664, 388 N.E.2d 770; Nguyen v. Johnson Machine & Press Corp. (1982), 104 Ill. App. 3d 1141, 433 N.E.2d 1104), the defendant asset purchaser does not become liable for the preacquisition torts of the original manufacturer, absent an express or implied assumption of liability. We find that the trial court properly followed the dictates of Illinois law.

The record reveals that plaintiff filed a negligence action against Original Pumping Service in which he sought damages for injuries to his hand sustained on July 24, 1987, while operating a concrete cement pump that was owned by Original. Original filed answers to interrogatories which stated that the pump was manufactured by Thom-sen Equipment and that it was purchased from the same on or about May 8,1981.

Plaintiff then amended his complaint joining Putzmeister, Inc., d/b/a Thomsen Equipment, Thomsen Equipment Company, and unknown owner or owners, d/b/a Thomsen Equipment Company, as defendants. In count II of the complaint, plaintiff alleged that Putz-meister, doing business as Thomsen Equipment, designed, manufactured and sold the concrete pump which caused his injuries. He further alleged that the pump was unreasonably dangerous when it left defendant’s control in that it had an unguarded nip point in a flapper valve.

Putzmeister filed a special and limited appearance and a motion to dismiss the amended complaint, with prejudice. The motion to dismiss alleged (1) that Thomsen Equipment Company, a California corporation (hereafter Predecessor), and not Putzmeister, manufactured, designed and sold the pump to Original; (2) that Putzmeister was not incorporated until June 1982 in Delaware under the name of Thomsen Equipment Company (the name was thereafter changed to Putzmeis-ter, Inc.-Thomsen Division, and later to Putzmeister, Inc.); and (3) that Putzmeister acquired the assets of the predecessor, which had filed a chapter 11 bankruptcy petition in California, pursuant to an asset purchase agreement and bankruptcy order entered by the Federal court on September 3, 1982. Following the filing of additional pleadings, exhibits, affidavits, court documents, and Secretary of State corporate records, the trial court entertained oral argument on the motion to dismiss.

Putzmeister alleged that its acquisition of the predecessor’s cement pump business does not fall within any of the exceptions to the general rule of nonliability of asset purchasers as established in Hernandez. On the other hand, plaintiff countered that Putzmeister’s purchase of the predecessor’s assets falls within the exceptions or, in the alternative, that Putzmeister is liable because of the “unique circumstances” by which it acquired the assets. The trial court dismissed count II of the complaint, with prejudice, and specifically rejected plaintiff’s argument that the asset purchase therein was “unique.” The court remarked that the purchase of a bankrupt corporation’s assets and the continued employment of some of its middle level management personnel and officers by the successor corporation is hardly unique, but something “that happens everyday in Bankruptcy Court.”

The generally accepted rule is that a corporation which merges with another corporation takes on the latter corporation’s obligations and liabilities while a successor corporation which purchases the business assets of another corporation does not become liable for the debts of the seller in the absence of an express agreement to assume the seller’s debts. Illinois has long applied this rule, which is based upon Illinois corporate law rather than strict liability principles, to determine the liability of an asset purchaser in a products claim. Green v. Firestone Tire & Rubber Co. (1984), 122 Ill. App. 3d 204, 460 N.E.2d 895; Gonzalez v. Rock Wool Engineering & Equipment Co. (1983), 117 Ill. App. 3d 435, 453 N.E.2d 792; Nguyen, 104 Ill. App. 3d 1141. See also People ex rel. Donahue v. Perkins & Will Architects, Inc. (1980), 90 Ill. App. 3d 349, 413 N.E.2d 29 (involving a de facto argument in a nonpersonal injury situation).

However, there are several exceptions to the general rule. As stated in Hernandez, the often-quoted exceptions to the rule of nonlia-bility are:

“(1) where there is an express or implied agreement of assumption; (2) where the transaction amounts to a consolidation or merger of the purchaser or seller corporation; (3) where the purchaser is merely a continuation of the seller; or (4) where the transaction is for the fraudulent purpose of escaping liability for the seller’s obligations.” See Hernandez, 70 Ill. App. 3d at 667.

The second exception has been interpreted to include a de facto merger. In Donahue, this court held that a purchaser of assets will not be liable under the theory of de facto merger or mere continuation in the absence of continuity of ownership. Donahue, although not a personal injury case, relied upon the criteria necessary to establish the existence of a de facto merger, as first set forth in Hernandez (70 Ill. App. 3d at 667) and reiterated in Nguyen. Those elements are stated as follows:

“(1) There is a continuation of the enterprise of the seller corporation, so that there is a continuity of management, personnel, physical location, assets, and general business operations.
(2) There is a continuity of shareholders which results from the purchasing corporation paying for the acquired assets with shares of its own stock, this stock ultimately coming to be held by the shareholders of the seller corporation so that they become a constituent part of the purchasing corporation.
(3) The seller corporation ceases its ordinary business operations, liquidates and dissolves as soon as legally and practically possible.
(4) The purchasing corporation assumes those liabilities and obligations of the seller ordinarily necessary for the uninterrupted continuation of normal business operations of the seller corporation.” Hernandez, 70 Ill. App. 3d at 667.

Here, it does not appear that Putzmeister’s purchase of the predecessor’s assets come within the exceptions to the general rule of nonliability of asset purchasers. With respect to the first exception, agreement of assumption, it is clear that there was no agreement between the corporations to assume the preacquistion tort liabilities of the seller corporation. Although plaintiff presented evidence that Putzmeister took on some of the obligations of the predecessor prior to the closing date of the sale, we are nevertheless governed by the express provisions of the written document which dictates the agreement between the parties. The asset purchase agreement and the bankruptcy order expressly disclaim “charges and claims,” which includes “without limitation *** product liability claims.”

Neither is there sufficient evidence to demonstrate that the transaction was for the purpose of committing a fraud on creditors. This conclusion is logical notwithstanding the disparity between the value of the predecessor’s debts and assets.

Similarly, the second and third exceptions, de facto merger and continuation, respectively, do not appear to be present here. As previously stated, all of the elements must be shown to establish a de facto merger. Nguyen determined that the absence of any single element is enough to defeat successor liability. Here, based upon a review of the affidavits of company officials, it seems there was neither continuity of enterprise nor continuity of ownership between the two corporations. No director of the predecessor ever was a director of Putzmeister. Putzmeister did not continue the product line of the predecessor; rather, the equipment produced by it was of its own design, although it marketed the equipment under the “Thomsen” trade name. No shareholder of the predecessor has ever been a shareholder of Putzmeister. Moreover, although some of the elements of merger were present here, including continuity of middle management employees, like the Nguyen case, there can be no successor liability absent a showing of common ownership between the seller and buyer.

Neither is plaintiff’s argument persuasive that Putzmeister’s purchase of the predecessor’s assets is a “mere continuation” as defined in Donahue. While plaintiff cites Donahue for the proposition that a voluntary reorganization of a corporation by its shareholders makes the reorganized corporation liable under the mere continuation exception, he then plainly ignores or discounts the Donahue holding. The Donahue court denied the claim for successor liability on the ground that continuity of ownership was lacking. Similarly, we affirmed the Donahue premise in Gonzalez, a personal injury case, where a claim for successor liability based on a mere continuation of the seller’s business was also rejected because of the lack of continuity of ownership. Accordingly, we believe the present factual matrix does not allow a deviation from the general rule of nonliability.

However, notwithstanding the well-established foregoing princi- ■ pies of law, plaintiff contends that based upon general principles of law and because of the discord found in Illinois cases regarding what is necessary to establish continuity of ownership, defendants should remain liable to pay damages to the victims of their unreasonably dangerous products even though the form or the ownership of the business has changed. He makes reference to other Illinois authorities that support the proposition that continuity of ownership should not be absolutely necessary to find a de facto merger or a mere continuation. This authority includes the legislative mandate that the surviving corporation is liable for its predecessor’s obligations in a de jure merger (see Ill. Rev. Stat. 1989, ch. 32, par. 11.10(c)) and the rule which requires continuing partners to remain liable to the creditors of the first partnership even though there is no continuity of ownership.

In the reply brief, plaintiff continues his argument that courts should be guided by the substance rather than the form of the transaction when determining whether the successor corporation’s purchase of the predecessor corporation’s assets also creates liability for preacquisition obligations and torts of the predecessor. Plaintiff contends that Putzmeister exercised ownership-like control of its predecessor’s affairs prior to closing the sale where it paid accounts payable, assumed bank obligations and controlled the management. As a result of the preclosing activities, coupled with the use of the name for a time period, continuity of location, continuity of officers and continuity of middle management, plaintiff urges that the cases relied upon by Putzmeister are factually distinguishable from the present case. A review of the cases, however, demonstrates that there are several similarities between the cases and the present factual matrix. For example, in Nguyen, the elements of continuity of management, location and business purpose were present. However, the court found that continuity of shareholders and a showing of common ownership between seller and buyer were absent.

Plaintiff also cites to cases in other States, which in grappling with the problem of holding successor businesses liable for the debts of predecessors without continuity of ownership in asset purchase situations have decided that continuity of ownership is not necessary. See Ramirez v. Amsted Industries, Inc. (1981), 86 N.J. 332, 431 A.2d 811; Ray v. Alad Corp. (1977), 19 Cal. 3d 22, 560 P.2d 3, 136 Cal. Rptr. 574; Turner v. Bituminous Casualty Co. (1976), 397 Mich. 406, 244 N.W.2d 873.

Thus, the plaintiff here, like plaintiffs in a recent opinion from this division, Kaleta v. Whittaker Corp. (1991), 221 Ill. App. 3d 705, 583 N.E.2d 567, also urges this court to adopt the “product line” approach to successor liability as set forth in the California case of Ray. Illinois law, however, to date remains the same; Nguyen rejected the analysis of the “product line” approach, and in Gonzalez, this court likewise refused to adopt the “product line” exception to the general rule of nonliability of a purchaser of assets.

The “product line” approach to successor liability is set forth in the California case of Ray (19 Cal. 3d 22, 560 P.2d 3, 136 Cal. Rptr. 574), and has been adopted in other State cases. (See Turner, 397 Mich. 406, 244 N.W.2d 873; Ramirez, 86 N.J. 332, 431 A.2d 811.) In Illinois in Nguyen (104 Ill. App. 3d 1141, 433 N.E.2d 1104), this court declined to address the specific issue, however, and rejected the analysis and results of the other States which did recognize the “product line” approach. Similarly in Gonzalez v. Rock Wool Engineering (117 Ill. App. 3d 435, 453 N.E.2d 792), we affirmed the dismissal of plaintiff’s fourth amended complaint and thereby refused to adopt the “product line” exception to the general rule of nonliability of a purchaser of assets as set forth in Ray (19 Cal. 3d 22, 560 P.2d 3, 136 Cal. Rptr. 574).

Accordingly, based on our research, as set forth in the Kaleta opinion and therefore not necessary to restate here, we found that the “product line” approach to successor liability has been repeatedly rejected by Illinois courts for several legal reasons and policy considerations. (See Gonzalez, 117 Ill. App. 3d 435, 453 N.E.2d 792; Nguyen, 104 Ill. App. 3d 1141, 433 N.E.2d 1104; Domine v. Fulton Iron Works (1979), 76 Ill. App. 3d 253, 395 N.E.2d 19; Hernandez, 70 Ill. App. 3d 664, 388 N.E.2d 770; Johnson v. Marshall & Huschart Machinery Co. (1978), 66 Ill. App. 3d 766, 384 N.E.2d 141.) We decline to revisit the “product line” approach cases here; however, we will briefly review the Illinois cases’ response thereto and this State’s rationale for rejection of the doctrine.

In Domine, we held that the Ray doctrine was not in conformity with the law of strict liability in Illinois because the Illinois Supreme Court had specifically refused to impose strict liability upon a defendant who is outside of the original producing and marketing chain. (Domine, 76 Ill. App. 3d at 257, citing Peterson v. Lou Bachrodt Chevrolet Co. (1975), 61 Ill. 2d 17, 329 N.E.2d 785.) Domine further opined that the public policy of Illinois does not favor the extension of the doctrine of strict liability to a successor corporation.

Hernandez emphasized an additional reason to reject the “product line” exception in reliance on statements enunciated in Leannais v. Cincinnati, Inc. (7th Cir. 1977), 565 F.2d 437. The court of appeals for the seventh circuit stated:

“In recent years, for a variety of reasons, many have thought it necessary to turn to the courts in search of solutions to social problems. Courts are ill-equipped, however, to balance equities among future plaintiffs and defendants. Such forays can result in wide-ranging ramifications on society, the contemplation of which is precluded by the exigencies of deciding a particular case presented on a limited record developed by present parties. Absent compelling necessity, therefore, a Federal Court should not impose the policy pronouncements of the Supreme Court of one state upon the citizens of another. Nor are we at liberty to impose our own view as to what the law of Wisconsin should be. As the Wisconsin Supreme Court has recognized, such broad public policy issues are best handled by legislatures with their comprehensive machinery for public output and debate.” Leannais, 565 F.2d at 441.

Furthermore, in Nguyen, this court extensively reviewed several hypotheses for creating liability on the part of the successor corporation and rejected each of them. The court concluded that the “arguments offered by plaintiff do not justify imposing the predecessor’s potential liability on the successor. *** Perhaps that law should be changed, but the change must come from the legislature.” (Nguyen, 104 Ill. App. 3d at 1151.) We agree.

It is clear that Illinois courts have declined to accept the doctrine of assigning liability without fault in successor corporation cases. However, this rule of thumb has been guided by corporate law principles, where the contract and agreement between the parties govern. As previously stated, the plaintiff has raised some interesting arguments on appeal, particularly the use of a term he phrased as the successor’s business identifiability with that of the predecessor. However, the implications of fraud, both pre-acquisition and post-acquisition, may be better raised and proved, if legitimate, where the legislature has set forth clear guidelines of what a successor corporation can and cannot do. These guidelines are set forth by statute in the other examples cited by plaintiff, such as the de jure corporation and the continuing partnership situations.

As stated in Green v. Firestone Tire (122 Ill. App. 3d 204, 460 N.E.2d 895), while the Illinois courts have been struggling with this issue, none have adopted the approach and most have looked to the legislature for direction in this area of law. The legislature’s role in this situation is especially important in light of the other statutory prerogatives governing corporations doing business in the State of Illinois.

Accordingly, in light of the foregoing decisions of this court and because the particular circumstances here do not mandate a different result, we affirm the trial court’s dismissal of plaintiff’s amended complaint, with prejudice.

Putzmeister seeks sanctions pursuant to Supreme Court Rule 375(b) (134 Ill. 2d R. 375(b)), on the ground that this appeal is frivolous as it is neither reasonably well-grounded in fact nor warranted by existing law or a good-faith argument for the extension, modification or reversal of existing law. Singer v. Brookman (1991), 217 Ill. App. 3d 870.

We have reviewed the record below and listened to counsel’s arguments on appeal and his theory that the instant case presents “unique circumstances” that allow for deviation from the general rule of non-liability in successor corporation product injury cases. Although it does not appear that counsel’s arguments are meritorious in this case, it cannot be said, based upon the facts here, the law in Illinois and other States, and the arguments advanced in the plaintiff’s briefs, that a reasonably prudent attorney would not, in good faith, have brought the instant appeal. (See Dreisilker Electric Motors, Inc. v. Rainbow Electric Co. (1990), 203 Ill. App. 3d 304, 562 N.E.2d 970.) Accordingly, we deny Putzmeister’s request for sanctions against the plaintiff.

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

Affirmed.

BUCKLEY, P.J., and O’CONNOR, J., concur.