author: JUSTICE GEIGER

text:
    LEE WOMACK et al., Indiv. and d/b/a Douglas Tap, Plaintiffs-Appellants, v. THE LOCAL LIQUOR CONTROL COMMISSION OF THE CITY OF ELGIN et al., Defendants-Appellees.
    Second District
    No. 2—91—0715
    Opinion filed May 29, 1992.

      Marmarie J. Kostelny, of Zimmerman, Smith & Kostelny, of Elgin, and Cynthia M. Alexander, of Law Offices of Cynthia M. Alexander, of Waukegan, for appellants.
    Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and Claudia Sainsot, Assistant Attorney General, of Chicago, of counsel), for appellee Illinois Liquor Control Commission.
    Erwin W. Jentsch, Michael R. Gehrman, and Barbara Oklesen, Assistant Corporation Counsel, of Elgin, for other appellees.
   JUSTICE GEIGER

delivered the opinion of the court:

On April 25, 1990, the plaintiffs, Lee Womack and his son, Wyndell Douglas Womack, applied for a renewal of their liquor license for the Douglas Tap (the tavern), located at 158 North Street in Elgin. The City of Elgin (the City) opposed the renewal. On May 22, 1990, after a hearing, the Local Liquor Control Commission of the City of Elgin (the Commission) denied the application. On July 18, 1990, the State of Illinois Liquor Control Commission (the State Commission) affirmed the denial. The plaintiffs filed a complaint for administrative review (see Ill. Rev. Stat. 1989, ch. 110, par. 3 — 101 et seq.) in the circuit court of Kane County. The circuit court affirmed the decision of the State Commission.

The plaintiffs brought this appeal from the circuit court’s affirmance. They argue (1) that there is a lack of evidence to support the Commission’s findings; and (2) that the Commission abused its discretion in refusing to renew the license. We affirm.

The plaintiffs have operated the tavern since 1982 and each owns a 50% interest in it. Immediately east of the tavern, at 160 North Street, is the Elgin Inn; it has been boarded up since early 1990. Immediately west of the tavern is a fenced-in lot. There are commercial buildings and lots across the street from the Douglas Tap. The Elgin police department is located slightly more than a block west of the tavern.

On April 25, 1990, the plaintiffs filed an application for renewal of their Douglas Tap liquor license. The City opposed the application, and on May 21, 1990, the Commission held a hearing on the renewal. In summary, the following evidence was presented at the hearing.

Several Elgin police officers testified about making drug-related arrests in or near the Douglas Tap. Detective Sergeant Mark Brictson testified that he had arrested a person named Terry Sykes twice, once in March 1989 and again in November 1989. The first time, Brictson arrested Sykes for possession of cocaine as Sykes was about to enter the tavern. On the second occasion, Brictson arrested Sykes inside the tavern premises on an outstanding arrest warrant. When he informed Sykes that Sykes was under arrest, Sykes pushed Brictson aside and threw a package containing cocaine behind the bar. The cocaine weighed approximately five grams and was packaged for sale.

On cross-examination, Brictson acknowledged that when he entered the Douglas Tap to arrest Sykes in November 1989, he did not see any narcotics in Sykes’ possession until after he attempted the arrest. Sykes was carrying the cocaine in a jacket pocket, and Brictson conceded that since he had not been able to see the cocaine, others also would have had difficulty seeing it. Brictson acknowledged that no employees hindered his making the arrest and that, in fact, the bartender on duty assisted by retrieving the cocaine that Sykes attempted to discard.

Brictson also testified that on December 4, 1989, he arrested Edwin Gomez, who was standing on the sidewalk between 158 and 160 North Street. Brictson searched Gomez and seized heroin with a street value of about $75. On cross-examination, Brictson acknowledged that the police report of that incident, which was admitted into evidence at the hearing, did not mention the Douglas Tap.

On April 14, 1990, Brictson arrested Charles Stokes after he saw Stokes leave the Douglas Tap. Stokes was wanted for an outstanding drug charge, and Brictson began chasing him. While running, Stokes discarded a syringe and a packet containing one-quarter gram of cocaine.

Detective Sergeant Brictson and Officer Jesse Padrón cooperated in several drug-related arrests. On February 27, 1990, the two participated in the arrest of Christine Kleist. Padrón, acting undercover, purchased cocaine from Kleist.

Padrón testified that when he first spoke with Kleist, he told her that he wanted to purchase cocaine, and she replied that she could get it for him if he followed her to the Douglas Tap. Padrón persuaded her to let him wait in the vicinity of 260 Center Street, about V-k blocks from the Douglas Tap, instead. The police report did not mention the Douglas Tap.

Padrón also testified to an undercover operation on February 28, 1990. Working undercover, Officer Padrón took a taxicab to the front of the Douglas Tap. He waited there a couple of minutes until Walter Shields exited the tavern, walked up to the cab, and spoke with Padrón. After asking what Padrón wanted, Shields walked to the “foyer” next to the tavern and motioned Padrón to come over. Shields handed Padrón a package containing about a quarter gram of cocaine for payment of $25.

Detective Sergeant Brictson arrested Arturo Salez on the evening of April 12, 1990. Brictson was on a stakeout near the Douglas Tap and first saw Salez a few minutes before the arrest. Salez was east of the Douglas Tap and walking west toward it. He went into the Douglas Tap, then came out accompanied by Jerry Rogers. Salez and Rogers engaged in an apparent drug transaction about 50 to 75 feet from the tavern’s front door. When Brictson announced his presence, Salez threw away an item that tested positive for cocaine. Brictson acknowledged he did not enter the Douglas Tap that night and that he did not see any crime committed in the immediate area of the Douglas Tap.

Officer Padrón and Elgin police officer Don Jerome arrested Lavester Kish on March 6, 1990. Officer Padrón testified that on that evening he observed Mark Minter exit the Douglas Tap and run across the street. Next, Lavester Kish ran across the street and stood next to Minter. Officer Padrón observed a drug transaction; Officer Jerome, in a squad car, approached the two men. As Jerome exited his vehicle, Kish dropped some packages to the ground. The packages tested positive for cocaine. Officer Jerome testified that, after being arrested, Kish stated that he had bought the cocaine from someone “from the Douglas Tap.”

On March 28, 1990, Officers Padrón and Jerome were on a routine bar check inside the Douglas Tap when they arrested Nathan Buckingham. As the officers attempted to enter the washroom, someone inside blocked the door. When the officers forced their way in, they discovered Buckingham and another man facing each other. Buckingham had cocaine in his hand and told the officers that he had obtained it from Kevin Ferguson inside the Douglas Tap. Officers Padrón and Jerome stated on cross-examination that they did not observe anything suspicious in the bar area itself that evening. Also, there was a solid wall between the bar and the washroom, and a bartender would not be able to observe the washroom from behind the bar. No agent or employee of the Douglas Tap hindered the officers’ arrest.

On April 2, 1990, dining a routine bar check, Officers Padrón and Jerome arrested Kevin Ferguson and Ronald Mitchell inside the Douglas Tap. As the officers entered the tavern, they observed Ronald Mitchell, who was sitting on a stool at the end of the bar, pick up a small black purse from the bar, dump the contents of the purse onto the floor, and attempt to walk toward the exit. Kevin Ferguson, who was standing next to Mitchell when the officers entered, dropped a plastic baggie onto the ground and attempted to walk away. The contents of the black purse tested positive for cocaine.

Emmett Moneyhun, an Elgin police surveillance officer, testified that on September 2, 1989, he participated in a surveillance that led to the arrest of Jerry Cozart. Stationed in the Kellenberger parking lot, east of and across the street from the Douglas Tap, he focused his attention on the Douglas Tap and the Elgin Inn. Moneyhun observed Cozart making “numerous” drug sales from the area of the front door of the Douglas Tap. According to Moneyhun, Cozart stood at the front door of the Douglas Tap, approached cars as they pulled up there, and proceeded with his transactions. On several occasions, Cozart placed money into his pockets. Moneyhun also saw Cozart “go back to the front door of the Douglas tap [sic], enter the Douglas Tap, come out, wait, go back to different cars, talk to different people.” Moneyhun also saw Cozart go to the parking lot east of the Elgin Inn to talk to people in the parking lot there. During about two hours of such activity that evening, Cozart went in and out of the Douglas Tap about four or five times.

Officer Moneyhun and Officer John Demmin arrested Orlando Mavry and Casanova Echols on April 14, 1989. Moneyhun had been stationed in the parking lot at Kellenberger’s for 45 minutes when he observed Mavry, a known drug dealer, going in and out of the Douglas Tap and making sales both on the sidewalk and to passing cars. He and Officer Demmin arrested Mavry and Echols as Mavry was selling cocaine to Echols in the parking lot east of the Elgin Inn. They seized approximately half a gram of cocaine.

Officer Demmin also participated in the arrest of Steven Harper on October 7, 1989, in the parking lot east of the Elgin Inn. Demmin observed Harper walking out of the Douglas Tap toward the parking lot and arrested him on an outstanding traffic warrant. In the course of the arrest, Demmin discovered three grams of cocaine, packaged for sale, on Harper’s person.

Over the plaintiffs’ objections, the City introduced testimony about the reputation of the Douglas Tap. Detective Sergeant Brictson testified that he was familiar with the general reputation of the Douglas Tap from information he had received over the past two years. Brictson stated that the Douglas Tap had a reputation for general rowdiness and for a high frequency of narcotics trafficking.

Officer Padrón testified that he was familiar with the Douglas Tap’s reputation from talking to area residents, participating in arrests, talking to other officers, and conducting surveillance. He stated that the Douglas Tap’s reputation was “not a good reputation whatsoever. If you need — the way they put it, if you need any drugs, it’s just like buying cookies at the store.”

Officer Moneyhun testified that 158 North Street has a reputation for curbside drug sales and that the Douglas Tap has a reputation as a large-volume drug center. According to Moneyhun, drug activity in the several-block area was increasing. In the six months before the hearing, there was a large percentage increase in drug sales and activity within the one-block area of the Douglas Tap; this was the result of other places for drug activity, such as the Elgin Inn, being shut down.

Officer Demmin testified that he was familiar with the Douglas Tap’s reputation as “a very high drug activity area.”

The City also called Warren Danielson. At the time of the hearing, he had been interim Elgin chief of police for slightly less than a year. Danielson stated that he was very familiar with 158 North Street, because of the considerable time and effort that the police department put into handling calls regarding activity there, conducting surveillance, and making arrests. Numerous citizen comments had also familiarized Danielson with the “very negative” reputation of the Douglas Tap, based on the “type of activity” there. The City manager had complained that it was impossible to drive down North Street at certain hours of the evening because of the heavy traffic and double-parked cars. Further, police manpower, already inadequate to meet community needs, was strained by the need to detail officers to the tavern area because of the drug activity there.

Danielson conceded that most of the objectionable activity was occurring outside the tavern but noted that there was no other commercial or residential property within that block. Danielson also stated that the police had discussed the drug problems with representatives of the Douglas Tap in the previous year, but that the problem had increased, not decreased, since then.

Lee Womack testified both as the City’s witness and in the plaintiffs’ behalf. He stated that he worked about 45 hours per week at the Douglas Tap, almost entirely in the daytime. In all the time he had worked there, he had not observed any individual using or selling drugs. Womack testified that he had never been accused of involvement in illegal drug activity, nor had his son or anyone who worked at the Douglas Tap ever been arrested for illegal drug activity.

Womack admitted that on April 20, 1990, in connection with his license application, he wrote a letter to Elgin mayor and Commission chairman George Van De Voorde, stating that he was searching for a new location for a tavern in order to “get away from the Elgin Inn,” which, before it was closed, was the “center of undesirables dealing in dope and other problems.” After the Elgin Inn was closed, the letter went on, some of this activity filtered into the Douglas Tap, and all of Womack’s efforts “couldn’t stop it 100 per cent.”

Womack testified that, in an attempt to stop drug trafficking at the Douglas Tap, about V-fe months before the hearing he had put up a sign on the door, stating that if anyone was caught on the premises with drugs, the tavern management would call the police. Also, after learning of the arrest in the tavern’s washroom, he instituted a policy of not letting more than one person occupy the washroom at a time.

The City also introduced into evidence a May 8, 1989, letter from Elgin City Clerk Marie Yearman to Lee Womack. The letter, sent together with an application for a license renewal, stated as follows: “The Liquor Commission is again calling your attention to the number of police calls made to your establishment. Unless immediate steps are taken to eliminate these serious incidents, you will be scheduled for a Hearing before the [Local] Commission.”

Asked about this letter on direct examination, Womack stated that he recalled appearing before the Commission approximately a year before the May 1990 hearing. The Commission told him there had been too many phone calls from the Douglas Tap. Womack testified that he put the Commission’s letter to that effect beside the cash register for his employees to see. There had been fewer calls from the Douglas Tap since then.

On cross-examination, Womack testified that after receipt of the Commission’s letter, he told his employees to “slow down on calling.” He did not, however, tell them to act to “slow down on” the drug incidences.

The Commission received into evidence the plaintiffs’ 1990 liquor license applications for the Douglas Tap and two other locations. They list both Lee and Wyndell Womack as applicants for the licenses, with each holding a 50% ownership interest. Both Womacks’ signatures appear. The Commission also received the 1989 application for the Douglas Tap, and the 1988 application for the Douglas Tap. Those applications list only Wyndell Womack as the owner. The 1989 application is signed by both Lee and Wyndell Womack as applicants, but the 1988 application is signed only by Wyndell Womack. The 1988 and 1989 applications list Lee Womack as the agent or manager in charge of the premises. Lee Womack admitted at the hearing that he had been a 50% owner of the Douglas Tap since 1982.

Following the hearing, the Commission made written findings that the continued operation of the Douglas Tap constituted a threat to the public health, safety and welfare. It stated its reasons for that finding: (1) the ongoing pattern of drug activity and arrests at and in the immediate vicinity of the Douglas Tap; (2) the increase in such drug-related activity and arrests since the closing of the Elgin Inn; (3) that such drug-related activity was open and notorious; (4) that the plaintiffs had failed to call police or otherwise report such drug activity, but had instead instructed employees not to call the police when illegal activity was observed; (5) that a pattern of drug sales and use had been shown in that persons making curbside and sidewalk drug sales repeatedly enter and exit the Douglas Tap during such transactions; and (6) that known drug dealers were frequent and regular patrons of the Douglas Tap.

The Commission also found that Lee Womack was not of good moral character in that he had listed a false address on his 1990 liquor license applications, had failed to disclose his ownership interest in the Douglas Tap for 1988 and 1989, had falsified his address in his applications for a driver’s license and vehicle registration, and had failed to correct any of these false statements. Similarly, it found that the Douglas Tap was not of good reputation in the community, but rather had the reputation of permitting and facilitating open and notorious drug sales and use.

The Commission’s additional findings were (1) that Lee Womack was not a resident of the City of Elgin, and (2) that he had made to the Commission material misrepresentations about his address and ownership in the tavern. The Commission stated that its findings “jointly and severally” constituted sufficient ground for nonrenewal of the tavern’s license. It denied the renewal application.

The plaintiffs appealed to the State Commission, which affirmed the Commission and denied the plaintiffs’ motion for a rehearing. The plaintiffs then sought administrative review in the circuit court of Kane County. The circuit court affirmed the State Commission, but granted the plaintiffs a stay. The plaintiffs now appeal.

On appeal, the plaintiffs first challenge the sufficiency of the evidence for the Commission’s decision not to renew their license for the Douglas Tap. They argue as follows: (1) that the Commission improperly punished the plaintiffs for illegal drug activity which occurred on public property and over which the plaintiffs had no control; (2) that the Commission improperly considered evidence of the reputation of the business instead of evidence of the licensee’s reputation (see Ill. Rev. Stat. 1989, ch. 43, par. 120(2)); (3) that the Commission erred in finding that Lee Womack was not a resident of Elgin; and (4) that the Commission should not have considered Lee Womack’s illegal failure to disclose his 50% ownership interest in the Douglas Tap on two previous applications (see Ill. Rev. Stat. 1989, ch. 43, par. 145(24)) because this ground for license denial was not disclosed in the amended notice of hearing.

In their initial argument that there is not sufficient evidence to support the Commission’s findings, the plaintiffs contend that the Commission could not properly refuse to renew their license for the tavern because of conduct and circumstances over which they had no real control, i.e., the drug activity occurring on the public streets and areas in the vicinity of the plaintiffs’ establishment. The plaintiffs argue that the evidence completely fails to show that they or any employee or agent of the Douglas Tap in any way contributed to or condoned this illegal activity. The plaintiffs maintain that they are being punished for the City’s inability to control drug trafficking on public property.

On circuit court or appellate review, a local liquor control commissioner’s decision to deny renewal of a liquor license is analyzed the same as a local commission’s decision to revoke a license. (See Latin Social Club, Inc. v. Illinois Liquor Control Comm’n (1977), 54 Ill. App. 3d 798, 799, 805.) The Liquor Control Act of 1934 (the Act) (Ill. Rev. Stat. 1989, ch. 43, par. 93.9 et seq.) does not define “cause” to revoke a liquor license (Askew v. Daley (1978), 62 Ill. App. 3d 370, 373); however, local liquor commissioners have considerable discretion to revoke a license, if good cause is shown (Leong v. Village of Schaumburg (1990), 194 Ill. App. 3d 60, 65). On review, a local commission decision to revoke may not be disturbed for lack of evidence if there is any record evidence to support it. Leong, 194 Ill. App. 3d at 65.

In furtherance of the Act’s objectives, State regulations provide that “No person holding a license *** shall in the conduct of the licensed business or upon the licensed premises *** [s]uffer or permit a violation of any law of the State of Illinois, or of any rule of this Commission.” (Emphasis added.) (11 Ill. Adm. Code §100.30(a)(3) (1991).) The mental state “suffer or permit” can be interpreted to require proof of authorization, knowledge or, at least, recklessness in failing to know. Hansmar, Inc. v. Illinois Liquor Control Comm’n (1979), 78 Ill. App. 3d 690, 694.

In this case, the Commission considered substantial evidence of illegal drug activity inside and in close physical connection with the tavern. There also was substantial evidence of the plaintiffs’ and their employees’ knowledge of the existence of this activity. There was not only testimony of tavern representatives’ presence when such activity occurred. There also was testimony that after the City informed the plaintiffs that the number of police calls from the tavern must be decreased, Lee Womack informed tavern employees to call the police less frequently. That instruction apparently was without regard for the likelihood of a diminished level of illegal activity.

The Commission failed to make an explicit finding that the plaintiffs had “suffered or permitted” State law violations, in violation of liquor license regulations. Nevertheless, in light of Lee Womack’s police call instruction to employees, plus his general acknowledgment of tavern-related illegal drug activity and the extensive evidence of such activity, we find that the evidence manifestly supports such a conclusion. See Jager v. Illinois Liquor Control Comm’n (1979), 74 Ill. App. 3d 33, 41.

Because of the close connection between a liquor licensee’s violation of regulations against “suffering or permitting” illegal drug activity and the governmental interest in protecting the public health, safety, and welfare (compare Askew v. Daley (1978), 62 Ill. App. 3d 370, 374), and although a licensee generally cannot be held responsible for conduct over which he had no control (Jager, 74 Ill. App. 3d at

40), we find no insufficiency of evidence to support the Commission’s finding of cause to revoke (Leong v. Village of Schaumburg (1990), 194 Ill. App. 3d 60, 64-65). Furthermore, because the record on this single aspect was sufficient to support the Commission’s decision, we find no need to address the plaintiffs’ challenges to the factual sufficiency of the Commission’s other reasons for finding that the tavern constituted a threat to the public health, safety, and welfare. (Leong, 194 Ill. App. 3d at 65.) The plaintiffs do not argue, and the record does not demonstrate, that any of the Commission’s other challenged findings biased this proper finding and the Commission’s action thereupon.

We proceed, then, to the plaintiffs’ argument that even if the decision of the Commission was not insufficiently supported by the evidence, the Commission’s imposition of the harsh penalty of denial of a petition to renew was an abuse of discretion. We find no such abuse.

In this portion of their argument, the plaintiffs cite cases where reviewing courts found that although the evidence supported liquor commission fact findings, the sanction of license revocation was an abuse of discretion. The plaintiffs also analogize, in part, our recent decision in Hanson v. Illinois Liquor Control Comm’n (1990), 201 Ill. App. 3d 974. There, we held that revocation of the plaintiffs’ liquor license was an excessively severe penalty for a single sale of cocaine by the plaintiffs’ employee. Hanson, 201 Ill. App. 3d at 983-84.

We find that Hanson, and the plaintiffs’ other cases, are distinguishable. Here, we have not just evidence of an isolated incident supporting the Commission’s decision. Rather, there is evidence of a longstanding and significant pattern of illegal drug activity to support the Commission’s finding that the plaintiffs’ licensed operation of the tavern posed a threat to the community. Although the evidence does not show that the plaintiffs willingly aided this activity, and although Lee Womack has held a liquor license since 1982, given the extent of evidence to support a finding that the tavern facilitated drug trafficking, we find “good cause” for not renewing the plaintiffs’ license and no abuse of discretion.

Based upon the foregoing, we affirm the judgment of the circuit court of Kane County.

Affirmed.

UNVERZAGT and BOWMAN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE McLAREN

license: Public Domain

text:
    AETNA CASUALTY AND SURETY COMPANY OF ILLINOIS, Plaintiff-Appellant, v. JAMES J. BENES AND ASSOCIATES, INC., et al., Defendants (Intergovernmental Risk Management Agency et al., Defendants-Appellees).
    Second District
    No. 2—91—1073
    Opinion filed May 28, 1992.

      Michael R. Orlando, of Connelly, Mustes & Schroeder, of Chicago, for appellant.
    Gerald J. Brooks, of James, Brooks, Adams & Tarulis, of Naperville, for appellee Village of Clarendon Hills.
    Kenneth T. Garvey and Robert J. O’Connor, both of Bresnahan & Garvey, of Chicago, for appellee Intergovernmental Risk Management Agency.
   JUSTICE McLAREN

delivered the opinion of the court:

Aetna Casualty and Surety Company of Illinois, plaintiff, filed an action seeking a declaration that it is entitled to reimbursement from the Intergovernmental Risk Management Agency (IRMA), defendant, for one-half of the defense and settlement payments made by Aetna on behalf of the Village of Clarendon Hills in an underlying suit. The trial court denied Aetna’s motion for summary judgment and granted IRMA’s cross-motion for summary judgment. Judgment was entered in favor of defendants, and plaintiff appealed. For the following reasons, we affirm.

J. Congdon Sewer Service, Inc. (Congdon), a general contractor, entered into a contract with the Village of Clarendon Hills (the Village) to perform construction services on a sewer project known as the Traube Avenue Storm Drainage Relief Sewer and Street Improvements Project. The terms of the contract required Congdon to name the Village as an additional insured under its policy with its commercial general liability insurer, Aetna. Accordingly, Aetna issued an additional insured endorsement naming the Village as an additional insured under Congdon’s general liability policy.

At all relevant times, the Village was a member of an organization known as the Intergovernmental Risk Management Agency (IRMA). As a member, the Village paid a certain sum of its municipal funds to IRMA in consideration of IRMA’s promise to provide risk management services to the Village, including the defense and settlement of claims.

On October 19, 1989, Manuel Valdovinos, an employee of Cong-don, suffered fatal injuries while working on the sewer project. A lawsuit was filed in the Federal District Court for the Northern District of Illinois against the Village, among others, for damages sustained by the estate of Valdovinos (hereinafter the Valdovinos litigation). In its defense, the Village tendered the contract between Aetna and Congdon naming the Village as an additional insured. Accordingly, Aetna agreed to pay for the Village’s defense, but reserved the right to participate in the Village’s defense with IRMA on a pro rata basis. Thereafter, Aetna tendered the Village’s defense to IRMA and requested that IRMA contribute on an equal basis with Aetna for defense and potential indemnification of the Village in the Valdovinos litigation. IRMA responded by stating:

“[Tjhere is no written policy of insurance issued to the Village of Clarendon Hills by IRMA for the accident that occurred on October 19, 1989, in the Village of Clarendon Hills involving J. Condgon [sic] Sewer Service, Inc. and Manuel Valdovinos.
Our review of the policy of insurance, naming the Village of Clarendon Hills as an additional insured, clearly indicates that your company, Aetna Life and Casualty, should be providing a defense and indemnification to the Village of Clarendon Hills.”

Aetna has paid $1.4 million to settle the Valdovinos litigation thus far. The final amount Aetna will pay in the Valdovinos litigation, however, will be determined in a pending contribution action brought by the Village against James J. Benes & Associates, Inc., the engineers on the sewer project, also named as defendants in the underlying suit. This contribution action was originally filed by the Village in the Valdovinos litigation to recover the amount paid on behalf of the Village in excess of the Village’s pro rata share pursuant to the Joint Tortfeasor Contribution Act (Ill. Rev. Stat. 1989, ch. 70, par. 301 et seq.). However, the contribution action was dismissed without prejudice in the Valdovinos litigation at the time Valdovinos released all defendants pursuant to the settlement. Accordingly, the Village refiled a contribution action against Benes which is currently pending in the circuit court of Du Page County.

On May 2, 1990, Aetna filed a complaint for declaratory judgment in the circuit court of Cook County. Count I presently exists as a counterclaim in a separate declaratory judgment action and is not relevant to this controversy. Count II comes to this court pursuant to defendants’ motion to transfer venue and is the only count that exists in the present declaratory judgment action. In count II, plaintiff sought a declaration that a contractual agreement between the Village and IRMA which allegedly obligated IRMA to defend and indemnify the Village for liability incurred in the Valdovinos litigation requires IRMA to reimburse Aetna for the amount of defense costs and settlement payments made by Aetna on behalf of the Village in the Valdovinos litigation in excess of its equal share. IRMA responded by denying that it owed any defense or indemnity obligation to the Village.

Thereafter, Aetna filed a motion for summary judgment pursuant to section 2 — 1005 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1005) as to the relief sought in count II of Aetna’s complaint for declaratory judgment. IRMA and the Village responded by filing a cross-motion for summary judgment on the same issues. After a hearing, the court entered an order denying Aetna’s motion for summary judgment and granting summary judgment in favor of defendants. Aetna appealed.

The aim of summary judgment is not to try issues, but to determine whether any triable issues of fact exist. (Choi v. Commonwealth Edison Co. (1991), 217 Ill. App. 3d 952, 956.) Plaintiffs are not required to prove their case at the summary judgment stage, but must provide a factual basis which would arguably entitle them to judgment in their favor. (Connor v. Merrill Lynch Realty, Inc. (1991), 220 Ill. App. 3d 522, 528; Choi, 217 Ill. App. 3d at 956.) Summary judgment is a drastic remedy and should be granted only when the pleadings, depositions, and admissions on file, together with the affidavits presented, if any, show there is no genuine issue as to any material fact such that the movant’s right to judgment is clear as a matter of law. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1005(c); Logan v. Old Enterprise Farms, Ltd. (1990), 139 Ill. 2d 229, 233-34; Sawko v. Dominion Plaza One Condominium Association No. 1-A (1991), 218 Ill. App. 3d 521, 528.) The trial court must strictly construe all such evidence and draw reasonable inferences from the record in favor of the nonmoving party. The motion should be denied where reasonable persons could draw divergent inferences from the undisputed facts. Loyola Academy v. S & S Roof Maintenance, Inc. (1992), 146 Ill. 2d 263, 272.

On review, we must determine whether the trial court abused its discretion in concluding there were no genuine issues of material fact such that the judgment was correct as a matter of law. (Schnering v. Midlothian Park District (1991), 219 Ill. App. 3d 664, 666; Sawko, 218 Ill. App. 3d at 528.) In this case, the trial court failed to indicate its rationale in granting summary judgment, but, instead, adopted the arguments of defendants as the basis for its ruling. However, summary judgment may be affirmed on any grounds supported by the record, regardless of whether the trial court relied on those grounds or whether the trial court’s reasoning was correct. See Beckman v. Freeman United Coal Mining Co. (1988), 123 Ill. 2d 281, 286.

The issue presented for review is whether there is a genuine issue of material fact concerning IRMA’s obligation to contribute to the defense and settlement of the Valdovinos litigation. In support of its position, Aetna contends that IRMA’s contract and bylaws specifically obligate IRMA to provide comprehensive liability coverage to the Village on the date of Valdovinos’ fatal injury, which amounts to primary insurance coverage, concurrent with Aetna. Thus, Aetna asserts that IRMA is obligated by contract to reimburse Aetna for one-half of the settlement paid by Aetna on behalf of the Village in the Valdovinos litigation.

In insurance law, contribution is “an equitable principle arising among coinsurers which permits one who has paid the entire loss to receive reimbursement from the other insurer liable for the loss.” (Hall v. Country Casualty Insurance Co. (1990), 204 Ill. App. 3d 765, 772; Pekin Insurance Co. v. Cincinnati Insurance Co. (1987), 157 Ill. App. 3d 404, 406.) The reason for this rule is that one insurer has paid a debt which is equally owed by the other insurers. The fact that one insurer undertakes the burden of a full settlement payment does not mean the insurer is a volunteer. Thus, the paying insurer is not precluded from recovering contribution from the other insurers liable for the same loss. (Royal Globe Insurance Co. v. Aetna Insurance Co. (1980), 82 Ill. App. 3d 1003, 1005.) In order for the settling insurer to recover in a contribution action, the policies must cover a risk on the same basis, and there must be identity between the policies as to parties and insurable interests and risks. Home Indemnity Co. v. General Accident Insurance Co. (1991), 213 Ill. App. 3d 319, 321; United States Fidelity & Guaranty Co. v. Continental Casualty Co. (1990), 198 Ill. App. 3d 950, 955.

Citing Royal Globe Insurance Co. v. Aetna Insurance Co. (1980), 82 Ill. App. 3d 1003, Aetna contends that it is entitled to contribution from IRMA for defense and settlement payments made on behalf of the Village in the Valdovinos litigation. In that case, Royal Globe issued a business liability policy to a realty company. In turn, Aetna issued a public and garage liability policy to its insured, a parking garage. Since the realty company was the managing agent of the parking garage, the realty company was listed as an additional insured under the Aetna policy. During the policy periods of both insurance contracts, a third party brought a personal injury action against both companies for injuries suffered on the premises of the parking garage. When Aetna refused to undertake the defense and payment of the claim, Royal Globe settled on behalf of the realty company. Royal Globe demanded payment of one-half of the settlement from Aetna, and Aetna refused. Thus, Royal Globe sought a declaration that Aetna was liable in equitable contribution to make such payment. On appeal, the court held that Royal Globe’s complaint sufficiently stated a cause of action for contribution from Aetna.

In the present case, Aetna claims that it is entitled to contribution from IRMA based on the factual similarities of Royal Globe. We note that Royal Globe involved an action for contribution between two commercial insurance carriers. The structure and policy of IRMA, however, do not support this characterization.

IRMA provides risk management services to the Village and approximately 48 other municipalities. Article XV of IRMA’s bylaws defines the contractual relationship among the entities participating in IRMA as follows:

“This document shall constitute a contract among those members of local government which become MEMBERS of the AGENCY. The obligations and responsibilities of the MEMBERS set forth herein *** shall remain a continuing obligation and responsibility of the MEMBER. The terms of this contract may be enforced in a court of law by the AGENCY for any of its MEMBERS.”

Article I of the contract, in effect at the time of Valdovinos’ injury, sets forth IRMA’s purpose as follows:

“The Intergovernmental Risk Management Agency is a cooperative agency voluntarily established by contracting units of local government as defined in the Illinois Constitution of 1970 *** for the purpose of seeking the prevention or lessening of casualty losses to municipal properties and injuries to persons or property which might result in claims being made against such units.
It is the intent of the MEMBERS of the CONTINUING AGENCY to create an entity which will administer a joint risk management pool and utilize such funds contributed by the MEMBERS to defend and protect, in accordance with these By-laws, any MEMBER of the AGENCY against stated liability or loss. Such By-laws shall constitute the substance of a contract among the MEMBERS.
All funds contained within the Risk Management Pool are funds directly derived from its MEMBERS which are local governments within the State of Illinois. It is the intent of the parties in entering into this agreement that, to the fullest extent possible, the scope of risk management undertaken by them through a joint municipal self-insurance program using governmental funds shall not waive, on behalf of any local public entity or public employees as defined in the Local Governmental and Governmental Employees Tort Immunity Act, any defenses or immunities therein provided.”

The contract defines “joint risk management pool” as “[a] fund of public monies established by [IRMA] to jointly self-insure certain risks within an agreed scope and to purchase catastophe [sic], excess and aggregate stop loss insurance.”

Further, the contract enumerates the powers and duties of the agency, one of which is “[t]o provide risk management services including the defense of and settlement of claims,” which is defined as “[a] program attempting to reduce or limit casualty losses to municipal properties and injuries to persons or property caused by the operations of units of local government.”

The types and amounts of coverage afforded to members of the agency are also set forth in the contract, which provides a $5 million limit per occurrence for general liability. However, IRMA’s bylaws specifically allow any member to purchase any insurance coverage above those amounts purchased by the agency. It also specifically allows the agency, IRMA, to purchase excess and aggregate stop loss insurance from approved companies.

In Antiporek v. Village of Hillside (1986), 114 Ill. 2d 246, 251, our supreme court held that membership in IRMA substantively amounts to “pooled self-insurance, through formal agreement, of governmental entities which share the risks and costs of civil liabilities” (emphasis added) and does not operate as a waiver of the municipal tort immunities conferred by the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (Ill. Rev. Stat. 1985, ch. 85, par. 1 — 101 et seq.). The Antiporek court reached this conclusion after analyzing both the structure of the IRMA contract and bylaws and the public policy concerns behind the establishment of intergovernmental agreements for joint risk pooling, such as IRMA. Although the plaintiff in Antiporek attempted to analogize IRMA to an insurance company, the court summarized the essence of IRMA as follows:

“IRMA provides a totally different type of protection — one tantamount to self-insurance within the meaning of section 9— 103 [of the Tort Immunity Act]. Participating public entities, too small to self-insure, pool their resources and risks to provide a level of protection from potential fiscal disasters which would otherwise accompany large, nonimmune liabilities. IRMA participants have not shifted the risk to for-profit risk takers, but have instead decided to share the risk among themselves. The contract and bylaws are distinguishable from commercial policies in that they require supplemental contributions from all members — even those which have submitted no claims — if liabilities outstrip annual contributions. A complementary provision reduces each participant’s next succeeding annual contribution if claims against the pool are fewer than forecast. Funding IRMA in that manner underscores that the risks and costs of civil liability are completely internalized among its participants, so every penny paid on every claim is taken from revenue otherwise available to meet the governmental responsibilities of member municipalities. Finally, because there are no private investors or nongovernmental participants, there is no danger that private persons will receive an unconscionable profit by accepting premiums while asserting immunities to avoid claims.” (Emphasis added.) Antiporek, 114 Ill. 2d at 250-51.

Aetna contends that Antiporek is inapplicable to the facts of this case because its ruling is restricted to the issue of a municipality’s waiver of governmental immunity. Thus, Aetna urges this court to treat IRMA as an insurance company for purposes of equitable contribution because it functions in the same manner as a commercial insurance company by providing risk protection. It is true that Antiporek did not determine IRMA’s status for all purposes and did not specifically analyze the liabilities of IRMA and commercial carriers in conjunction with one another. However, we deem its rationale and characterization of IRMA as a pool of self-insureds applicable to the facts of this case.

Since Antiporek, section 9 — 103 of the Tort Immunity Act has been amended to allow municipalities to acquire commercial liability insurance without waiving their immunities under the Act. Aetna attempts to characterize the legislature’s act as rendering Antiporek moot. On the contrary, we construe the amendment to be an extension of Antiporek. In reaching its holding, the Antiporek court reasoned that immunity is waived when the municipality’s liability is covered by private commercial carriers because there is no risk of tax revenues being diverted from public functions. The court further reasoned that “when a municipality self-insures, it bears all risks itself, and settlements or awards are paid directly from government coffers.” (Antiporek, 114 Ill. 2d at 250.) Thus, Antiporek distinguished the purchase of insurance from separate licensed insurance companies from self-insurance and announced the public policy interest of protecting public funds and property and preventing the diversion of tax monies from their intended purpose of paying damage claims. (See Ramos v. City of Countryside (1985), 137 Ill. App. 3d 1028, 1034.) Under the amendment, municipalities have the choice of electing either to rely on self-insurance or have a contractor name the municipality as an additional insured under its policy with a commercial carrier as a bargained-for-benefit from contracting for specific projects. In either case, the municipalities’ immunities are protected.

Thus, IRMA is not and ought not to be treated as a private insurance carrier. The reason a self-insured municipality would acquire commercial liability insurance for a specific project, even though it is part of a self-insurance pool, such as IRMA, is because it chooses not to place taxpayer revenues in jeopardy. Allowing Aetna’s equitable contribution claim would completely undercut the rationale of Antiporek. In finding “[t]he substance of IRMA [was] pooled self-insurance” (Antiporek, 114 Ill. 2d at 251), the court reasoned that treating IRMA as an insurance policy would unfairly penalize municipalities too small to self-insure, because larger municipalities capable of self-insuring could retain their immunities under the Act. To hold that the IRMA agreement is an insurance policy for purposes of equitable contribution from a commercial carrier would penalize small municipalities for the exact reason the Antiporek court ruled otherwise.

For example, if a large municipality capable of self-insuring would have been named as the insured party under Aetna’s policy in this case, Aetna would be claiming a right of equitable contribution against its own insured. This would amount to a demand that the money paid out on behalf of the named insured be reimbursed by the insured, which is completely contrary to the purposes of insurance.

The sole authority Aetna cites in opposition to Antiporek is Wesala v. City of Virginia (Minn. App. 1986), 390 N.W.2d 285, vacated & appeal dismissed (Minn. 1987), 401 N.W.2d 73. The Wesala court addressed the issue of whether a municipality’s membership in the League of Minnesota Cities Insurance Trust (LMCIT), similar to IRMA, resulted in a waiver of a Minnesota tort immunity statute. The court found that LMCIT operated in the same manner as a commercial insurer and was an effective device to spread risk because the member municipalities did not bear the entire risk individually. As a result, the court found that the city waived its immunity by its membership in LMCIT. While this case is instructive on the position of another jurisdiction, we are bound to follow Antiporek and the sound policy it articulates. See Kannel v. State Farm Mutual Automobile Insurance Co. (1991), 222 Ill. App. 3d 1013,1018.

Under Antiporek, IRMA is not an insurance company, but a pool of self-insured municipalities. Thus, we find no identity between the IRMA contract and Aetna’s policy naming the Village as an additional insured concerning the parties, insurable interests, and risks. Accordingly, Aetna has no right of equitable contribution from IRMA pursuant to the Valdovinos’ settlement. For the foregoing reasons, we find that the trial court did not abuse its discretion in granting summary judgment in favor of defendants, as the pleadings and evidence before the court show there is no genuine issue of material fact and that defendants’ right to judgment is clear as a matter of law.

Accordingly, the judgment of the circuit court of Du Page County is affirmed.

Affirmed.

UNVERZAGT and DOYLE, JJ., concur.


author: JUSTICE NICKELS

text:
    AMERICAN STATES INSURANCE COMPANY, as Subrogee of Homestead Electric Company, Plaintiff-Appellant, v. A.J. MAGGIO COMPANY, INC., Defendant-Appellee.
    Second District
    No. 2—91—1052
    Opinion filed May 28, 1992.

      Michael C. Piller, of Eichstaedt, Krause, Piller & O’Leary, of Carol Stream, for appellant.
    Michael L. Handley, of Aries & Hoyt, of Chicago, for appellee.
   JUSTICE NICKELS

delivered the opinion of the court:

This negligence claim was brought by plaintiff, American States Insurance Company, as subrogee of Homestead Electric Company (Homestead), pursuant to section 5(b) of the Workers’ Compensation Act (Ill. Rev. Stat. 1989, ch. 48, par. 138.5(b)). Plaintiff insurer brought the action against defendant, A.J. Maggio Company, Inc., to recover $20,783.75 in damages sustained when defendant, a general contractor, allegedly failed to provide a reasonably safe workplace for Homestead’s employee according to defendant’s contract with Homestead, one of its subcontractors.

The complaint alleged that Homestead’s employee slipped and fell on a patch of ice and sustained injuries due to defendant’s failure to remove dangerous ruts or accumulations of ice on the driveway of a construction site and failed to warn of the dangerous condition of the premises. The trial court granted defendant’s motion for summary judgment based on its finding that defendant did not undertake a duty to remove ice and snow at the workplace.

On Friday, December 30, 1988, Leonard Adelman, an electrician who worked for Homestead, injured his left ankle while walking on the paved driveway which was covered with snow and ice. According to Adelman’s deposition, he was going to his car in the paved parking lot after he left Homestead’s trailer at the construction site. The traffic to the construction site created ruts in the snow and ice where Adelman fell. There had been 8 to 12 inches of snow that week, and, on Wednesday, it had rained, turning the snow to slush. Due to the thawing and freezing, there was ice on the ground by Friday. Defendant was the general contractor at the construction site and occupied its own trailer. There was a third trailer for the pipe fitters. Adelman never saw anyone shovel or remove the snow on the driveway, although the occupants of each trailer put salt on their own steps. Adelman did not observe any signs warning of hazards at the site.

In response to plaintiff’s interrogatories, defendant acknowledged that it did not take any steps to remove the ice and snow from the driveway and parking lot or take other precautions such as the posting of warnings with respect to the ice and snow; neither did defendant receive any complaints regarding the condition of the driveway, parking lot or construction site.

Plaintiff’s complaint averred that defendant owed a duty to Homestead and its employees to take reasonable precautions to prevent injury to them and to maintain reasonable safeguards for their safety, including the posting of danger signs. Further, the complaint essentially alleged that defendant breached its duty in negligently failing to remove dangerous ruts and accumulations of ice; failed to warn or post signs regarding the dangerous conditions of the premises; and failed to provide reasonable protections to prevent injury to workers on the premises in violation of its contractual obligations.

The record establishes that defendant was hired to perform construction work for the local school district. Defendant subcontracted the electrical work to Homestead. The subcontract between defendant and Homestead, which was not appended to the complaint, provided, in pertinent part:

“10.2.2 The Contractor shall take reasonable precautions for safety of, and shall provide reasonable protection to prevent damage, injury or loss to:
.1 employees on the Work and other persons who may be affected thereby[.]”

The contract further provided:

“10.2.3 The Contractor shall erect and maintain, as required by existing conditions and performance of the Contract, reasonable safeguards for safety and protection, including posting danger signs and other warnings against hazards ***.”

On July 12, 1991, defendant moved for summary judgment, arguing that it did not have a duty to warn of or to remove a natural accumulation of ice and snow. In support of its position, defendant cited Harkins v. System Parking, Inc. (1989), 186 Ill. App. 3d 869 (ruts and uneven surfaces created by traffic on snow and ice are not considered unnatural accumulations and cannot form the basis of liability), and Galivan v. Lincolnshire Inn (1986), 147 Ill. App. 3d 228 (property owner has no duty to remedy and is not liable for injuries caused by natural accumulation of ice and snow; ruts and uneven surfaces caused by traffic usage not unnatural accumulation). On August 19, 1991, after hearing the arguments of counsel, the trial court concluded that, as a matter of law, the contract between the parties did not impose additional duties for the removal of ice and snow, and the court entered summary judgment for defendant.

On appeal, plaintiff again contends that the contractual agreement imposed additional duties upon defendant to remove the snow and ice or warn of any hazardous condition occasioned by their presence. Plaintiff concedes that the condition of the driveway was the result of a natural accumulation of snow and ice. However, plaintiff argues that the common-law rule that an occupier of land owes no duty to remove natural accumulations of snow and ice does not apply in this case because defendant’s duty arises from its contract. Defendant further argues that the terms of the contract need not be specific to require defendant to remedy the situation arising from the presence of ice and snow. We disagree with plaintiff’s application of the law to the facts of this case.

An owner or occupier of property has a duty to invitees to maintain the property in a reasonably safe condition. (Wolter v. Chicago Melrose Park Associates (1979), 68 Ill. App. 3d 1011, 1019.) In the absence of a contractual obligation, there is no common-law duty on the part of the owner (or occupier) of property to remove accumulations of ice or snow from areas maintained for the use of his invitees where the accumulation is a natural one and is not caused or aggravated by the owner. (Wells v. Great Atlantic & Pacific Tea Co. (1988), 171 Ill. App. 3d 1012, 1017.) However, a voluntary undertaking to remove snow and ice may subject the owner to liability if the removal is performed negligently. (Wells, 171 Ill. App. 3d at 1017.) Whether a defendant has the duty to warn plaintiff of the condition of the premises is contingent upon the finding that the ice or snow resulted from an unnatural or artificial accumulation. Walter, 68 Ill. App. 3d at 1019; see Galivan, 147 Ill. App. 3d at 230.

Additionally, in slip-and-fall cases, the plaintiff must affirmatively show that the accumulation of ice or snow is due to unnatural causes and that the property owner had actual or constructive knowledge of the condition. (Gilberg v. Toys “R” Us, Inc. (1984), 126 Ill. App. 3d 554, 557.) Here, plaintiff concedes that the ice and snow constituted a natural accumulation. (See Galivan, 147 Ill. App. 3d 228.) Therefore, defendant has no liability under the traditional rules of negligence applied in a slip-and-fall case.

Plaintiff argues that defendant had a contractual duty to remove or warn of the condition created by the ice and snow. However, our examination of the contract persuades us that it only imposes a duty of a very general nature to maintain the work area in a reasonably safe condition — a duty no greater than would be imposed at common law on an owner or occupier of the property. Where a defendant is charged with negligence because of his failure to perform an act allegedly required by contract, the question whether the defendant had a duty to perform the act is determined by the terms of the contract. (Perkaus v. Chicago Catholic High School Athletic League (1986), 140 Ill. App. 3d 127, 134.) The defendant’s duties will not be expanded beyond the scope of the duties described in the contract. B.C. v. J.C. Penney Co. (1990), 205 Ill. App. 3d 5, 13-14; Perkaus, 140 Ill. App. 3d at 134.

Plaintiff concedes that imposing upon defendant a duty to clear snow and ice exceeds the express language of the contract, but argues that the language could be interpreted to include such a duty; therefore, the interpretation of the contract becomes a question for the trier of fact. We disagree. Whether an agreement is ambiguous is a matter of law for the court to determine. Aqua-Aerobic Systems, Inc. v. Ravitts (1988), 166 Ill. App. 3d 168,171.

A contract is ambiguous only if it is reasonably susceptible of different constructions; it is not ambiguous if the court can determine its meaning without any guide other than a knowledge of the simple facts on which, from the nature of the language in general, its meaning depends; contracts are not rendered ambiguous merely because the parties do not agree upon their proper construction. (Shultz v. Delta-Rail Corp. (1987), 156 Ill. App. 3d 1, 10.) In such a case, the intent of the parties must be determined from the language of their agreement alone. (Berutti v. Dierks Foods, Inc. (1986), 145 Ill. App. 3d 931, 934.) Any particular interpretation that only the plaintiff may have envisioned at the time the contract was executed is immaterial. (Metro East Sanitary District v. Village of Sauget (1985), 131 Ill. App. 3d 653, 658.) A court will not add another term about which an agreement is silent; no word can be added to or taken from the agreement to change the plain meaning of the parties as expressed therein. La Salle National Bank v. City of Warrenville (1982), 105 Ill. App. 3d 643, 647.

The duty which plaintiff claims existed goes beyond the agreement of the parties and exceeds the scope of the undertaking. (See J.C. Penney, 205 Ill. App. 3d at 14 (contractor’s agreement to take precautions for safety of property and employees would not be extended to impose duty to prevent crime from occurring at site).) Defendant only assumed a general duty of care to keep the workplace reasonably safe and assumed no duty greater than would be ordinarily expected of a landowner. There is no express provision in the contract for the removal of snow and ice from the construction site.

Plaintiff’s interpretation of the general provisions of the contract is unreasonably strained, and we will not add terms to the contract where it is silent. Since the accumulation of snow and ice was natural, defendant was under no special duty to remove it or warn of its possible danger. (See Choi v. Commonwealth Edison Co. (1991), 217 Ill. App. 3d 952, 957 (defendant’s duty to maintain reasonably safe workplace did not extend to taking precautions against danger posed by water from melted snow and tracked inside from a natural accumulation outside).) Plaintiff has not demonstrated the existence of a duty which was breached by defendant and which would subject it to liability. Since there is no triable issue of fact, the trial court properly granted summary judgment to defendant. See Choi, 217 Ill. App. 3d at 956-57.

The judgment of the circuit court is affirmed.

Affirmed.

INGLIS, P.J., and DUNN, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GERALD D’AREZZO, Defendant-Appellant.
    Second District
    No. 2—90—1036
    Opinion filed May 28, 1992.

      G. Joseph Weller and Patrick M. Carmody, both of State Appellate Defender’s Office, of Elgin, and Marilyn Martin, of Chicago, for appellant.
    Michael J. Waller, State’s Attorney, of Waukegan (William L. Browers and Cynthia N. Schneider, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McLAREN

delivered the opinion of the court:

Gerald D’Arezzo, defendant, pleaded guilty to the offense of first degree murder (Ill. Rev. Stat. 1989, ch. 38, par. 9 — 1(a)(2)) and was sentenced to a term of 42 years’ imprisonment. He appeals from an order denying his motion to reconsider the sentence. For the following reasons, we affirm.

In the early morning hours of January 3, 1990, defendant accompanied Linda Morrison to her apartment in Lake Bluff, Illinois, having met in a tavern earlier that evening. After engaging in an act of sexual intercourse, defendant claims the victim became physically aggressive. When she persisted, defendant began to shove and push her away and proceeded to grab the victim around the neck and strangle her. Defendant collected his belongings, finding everything except his necktie, grabbed the victim’s purse, and fled the premises through the bedroom window.

The following afternoon, the victim’s roommate discovered her naked body facedown on the floor covered with a sheet and towel. Shortly after Lake County sheriff’s officer Bertrand arrived at' the apartment, he discovered a sailor’s tie monogrammed with the initials GJD on top of the body. He contacted the Navy, which provided him with a list of names, including that of defendant. The following day, defendant met with Lake County sheriff’s detective Robert Randall. Defendant admitted the occurrence of the aforementioned events and stated that he believed the victim was dead when he fled her apartment. Thereafter, defendant pleaded guilty to the offense of first degree murder in that he knew his act of manual strangulation created a strong probability of death or great bodily harm. Ill. Rev. Stat. 1989, ch. 38, par. 9-l(a)(2).

At the sentencing hearing, the State tendered victim impact statements (VIS) pursuant to section 6 of the Bill of Rights for Victims and Witnesses of Violent Crime Act (Act) (Ill. Rev. Stat. 1989, ch. 38, par. 1406) by the victim’s parents and siblings (Ill. Rev. Stat. 1989, ch. 38, par. 1403(a)(3)). Although the defense objected on the basis that the statements contained improper opinions concerning defendant’s lack of remorse, the judge admitted them, indicating his intent to read them in their entirety while mentally separating and disregarding any improper contents.

Later, Mildred Decosola, mother of the victim, testified that her presence at the hearings was most upsetting because she believed defendant showed no remorse for his actions. Specifically, she stated that during the hearings defendant “looked us straight in the eye” and “never once blinked an eye, never once put his head down.” The defense again objected on the basis that the proper subject matter of a VIS does not concern the degree of remorse exhibited by defendant. In overruling the objection, the court reasoned that the statute was intended to encompass all “rippled effects” of the crime on persons identified as victims in the Act. In rendering a sentence of 42 years’ imprisonment, the court expressly stated that it considered both the written and testimonial VIS.

On appeal, defendant contends that the court considered improper factors in sentencing. The weight attributed to each factor in aggravation and mitigation in setting a sentence depends on the particular circumstances of each case. (People v. Perruquet (1977), 68 Ill. 2d 149, 154; People v. Hernandez (1990), 204 Ill. App. 3d 732, 740.) The sentencing judge is in the best position tó consider all factors relating to sentencing and is vested with wide discretion in making a reasoned judgment concerning the appropriate penalty. (People v. O’Neal (1988), 125 Ill. 2d 291, 297.) A reviewing court must examine the propriety of sentences with great caution, ensuring that it does not substitute its judgment for that of the sentencing court merely because it would have weighed the factors differently. (People v. Streit (1991), 142 Ill. 2d 13, 19.) Thus, the trial court’s balancing of aggravating and mitigating circumstances is entitled to substantial weight and deference and will not be disturbed on review absent an abuse of discretion. (Streit, 142 Ill. 2d at 18-19; People v. Center (1990), 198 Ill. App. 3d 1025, 1032.) The imposition of a sentence constitutes an abuse of discretion only when the judgment of the trial court is manifestly unjust or palpably erroneous. People v. Anderson (1986), 112 Ill. 2d 39, 46.

Defendant first contends that his sentencing hearing was tainted by the testimony and statement of the victim’s mother, Mildred Decosola. Persons identified as victims in the Bill of Rights for Victims and Witnesses of Violent Crime Act, which includes the spouse, parent, child or sibling of a person killed as a result of a violent crime (Ill. Rev. Stat. 1989, ch. 38, par. 1403(a)(3)), are statutorily entitled to address the court “regarding the impact which the defendant’s criminal conduct *** has had upon the victim[s].” (Ill. Rev. Stat. 1989, ch. 38, par. 1406.) The Act further provides that the court shall consider the victim impact statements, as well as all other appropriate factors in rendering the defendant’s sentence.

Although the Act fails to address precisely what type of information is the proper subject matter of a VIS, the United States Supreme Court has recently addressed the admissibility of these statements. (Payne v. Tennessee (1991), 501 U.S._, 115 L. Ed. 2d 720, 111 S. Ct. 2597.) In Payne, the Supreme Court overruled its prior decisions in Booth v. Maryland (1987), 482 U.S. 496, 96 L. Ed. 2d 440, 107 S. Ct. 2529, and South Carolina v. Gathers (1989), 490 U.S. 805, 104 L. Ed. 2d 876, 109 S. Ct. 2207, and allowed evidence of the specific harm caused by the defendant to be introduced at the sentencing phase in a capital case “for the jury to assess meaningfully the defendant’s moral culpability and blameworthiness.” (Payne, 501 U.S. at_, 115 L. Ed. 2d at 735, 111 S. Ct. at 2608.) Payne has recently been applied in Illinois in People v. Hope (1992) 147 Ill. 2d 315, 323. As stated in Booth, “there may be times that the victim’s personal characteristics are relevant to rebut an argument offered by the defendant. [Citation.] The trial judge, of course, continues to have the primary responsibility for deciding when this information is sufficiently relevant to some legitimate consideration to be admissible, and when its probative value outweighs any prejudicial effect.” Booth, 482 U.S. at 507 n.10, 96 L. Ed. 2d at 451 n.10,107 S. Ct. at 2535 n.10.

Although defendant asserts that Mrs. Decosola’s statements concerning the degree of remorse exhibited by defendant constituted an inadmissible lay interpretation of his subjective mental process in violation of evidentiary rules, we find no error. The opinions concerning the degree of remorse exhibited by defendant were based on personal observations of defendant’s demeanor in the courtroom. Because defendant claims he did exhibit remorse for the crime, the statements were directly relevant to assess defendant’s moral culpability and blameworthiness (Payne, 501 U.S. at_, 115 L. Ed. 2d at 735, 111 S. Ct. at 2608), and rebut his argument (Booth, 482 U.S. at 507 n.10, 96 L. Ed. 2d at 451 n.10, 107 S. Ct. at 2535 n.10).

We further find that the sentencing judge placed an appropriate degree of weight on the VIS. If these statements were before a jury rather than the judge, the court would have been required to sift through the statements and eliminate inflammatory material. However, the court explicitly stated that it intended to read through all the statements in their entirety and mentally separate and disregard improper contents. When rendering defendant’s sentence, the court explained in great detail the many factors it considered in aggravation and mitigation. Only in passing did the court state that it considered the written and oral statements of the victims. We note that the range of sentencing in this case was far higher than defendant actually received. (See Ill. Rev. Stat. 1989, ch. 38, pars. 9 — 1, 1005 — 8—1, 1005 — 8—2.) Without evidence in the record to support defendant’s contention that the court placed undue emphasis on the evidence concerning the degree of remorse exhibited by defendant, we find no abuse of discretion. See People v. Trice (1991), 217 Ill. App. 3d 967, 983.

Next, defendant asserts that the sentencing process was infected with improper speculation and conjecture concerning the degree of violence accompanying the murder, the amount of premeditation involved, and the impact of defendant’s background and history. In rendering its sentence, the court stated that the victim was murdered:

“[B]y manual strangulation, choking her, which in the Court’s opinion requires considerable deliberation, considerable continuous physical contact, and it takes a period of time to accomplish. It is not something which is done over the spur of the moment such as the instantaneous pulling of a trigger and firing a bullet into someone’s body causing their death. This took a period of time. It took a concerted effort, thinking and thought.
There was further evidence from the factual basis supplied to the Court that this was a crime committed with some additional violence, [given] that there were contusions and abrasions to the head, breasts, clavicle and shoulder of the victim.”

Defendant contends that the State failed to produce any evidence indicating a causal connection between the bruises on the victim’s body and her strangulation by defendant, thus making the court’s assertion that the murder was accompanied by “additional violence” nothing more than unfounded speculation. He further asserts that the judge’s postulation that the crime was premeditated exceeded reasonable bounds of facts tending to aggravate the offense. We disagree.

The record contains evidence that Dr. Lawrence Blum performed an autopsy on the victim. His report revealed two contusions on the victim’s head, one of which was approximately lxh inches in length and one inch wide, and additional contusions to the left breast, clavicle, and shoulder. It is not speculation that an act of manual strangulation resulting in murder requires intense physical contact over a considerable time and is likely to cause bruising. “The fact that the sentencing judge added some personal observations before imposing sentence, while not to be encouraged, is of no consequence.” (People v. Steppan (1985), 105 Ill. 2d 310, 323.) The existence of those injuries is physical evidence from which reasonable inferences were properly drawn. The degree of harm or force employed, as well as the physical manner in which a victim’s death occurred, may be considered as aggravating factors in determining the length of a sentence in cases where serious bodily harm is arguably implicit in the offense for which a defendant is convicted. (See People v. Saldivar (1986), 113 Ill. 2d 256, 271; People v. Bolden (1991), 210 Ill. App. 3d 940, 947; Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 5—3.2(a)(1).) Without any indication that the court placed undue emphasis on the manner in which the victim’s death occurred in aggravation, we find no abuse of discretion.

Defendant contends that his sentence should be reduced because the court gave insufficient consideration to his rehabilitative potential. The Illinois Constitution provides that “[a]ll penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship.” (Ill. Const. 1970, art. I, §11.) Similarly, section 1 — 1—2 of the Unified Code of Corrections states that the purposes of the Act are to “prescribe sanctions proportionate to the seriousness of the offenses and permit the recognition of differences in rehabilitation possibilities among individual offenders” and “restore offenders to useful citizenship.” (Ill. Rev. Stat. 1989, ch. 38, pars. 1001 — 1—2(a), (d).) However, the constitutional mandate calls for balancing of the retributive and rehabilitative aspects of punishment. (People v. Young (1988), 124 Ill. 2d 147, 156.) Therefore, the record must show that the court gave due consideration to both elements. (People v. Thomas (1991), 217 Ill. App. 3d 698, 705; People v. Jenkins (1991), 209 Ill. App. 3d 249, 264.) Before a reviewing court reduces a sentence pursuant to Supreme Court Rule 615(b) (134 Ill. 2d R. 615(b)), it must find that the sentencing court abused its discretion, in that the punishment clearly departs from the spirit and purpose of fundamental law and the State Constitution, which requires that the sentence be proportionate to the nature of the offense and the possibilities of rehabilitation. People v. Haepp (1990), 194 Ill. App. 3d 207, 210.

In sentencing defendant, the judge expressly stated that he considered all evidence presented at the hearing, as well as the presentence report and defendant’s personal statement. However, the court also rendered a lengthy statement where it professed its belief that defendant committed the murder without a strong provocation. Based on the testimony of Dr. Marva P. Dawkins, a clinical psychologist who examined defendant, as well as letters from persons who knew defendant, the court believed defendant is “too volatile a person to remain in liberty in an unsuspecting society” and was “convinced” that defendant’s character and attitude indicate a likelihood of committing another offense when faced with similar circumstances. The court referred to defendant’s unfortunate upbringing, but noted that defendant’s own sister was leading a productive life, stating that “not everyone who comes from a broken home or bad parents or similar upbringing goes on to commit murder, much less other criminal offenses.” Although the court found defendant “highly intelligent, highly articulate, [with] excellent recall, [and] excellent memory,” it considered his credibility suspect.

In urging a reduction of his sentence, defendant refers to cases where sentences were reduced by the court in situations where the defendant’s background was similar to his own. However, the sentencing judge has an opportunity to observe the defendant in person and is in the best position to assess his credibility, demeanor, general moral character, and mentality (Streit, 142 Ill. 2d at 19), with proper consideration to his prior criminal history, rehabilitative potential, seriousness of the offense, and the need to protect society and deter others. (People v. Smith (1991), 214 Ill. App. 3d 327, 338-39.) Therefore, the sentencing judge is in the best position to fashion a sentence which balances the rehabilitative and retributive elements. Further, the existence of mitigating factors does not automatically oblige the court to reduce a sentence. Where there is evidence in mitigation before the court, it is presumed to have considered such evidence absent some contrary indication other than the sentence imposed. (Thomas, 217 Ill. App. 3d at 705; Smith, 214 Ill. App. 3d at 339.) We find no abuse of discretion in the present case, since the record adequately reflects that the court gave appropriate weight to all evidence concerning defendant’s rehabilitative potential, both positive and negative, when imposing a sentence of 42 years’ imprisonment, which is well below the maximum possible penalty for this offense. See Ill. Rev. Stat. 1989, ch. 38, pars. 9-1,1005-8-1,1005-8-2.

Lastly, defendant contends that he was denied the effective assistance of counsel. A defendant claiming ineffective assistance of counsel must meet a two-part test articulated in Strickland v. Washington (1984), 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064, and adopted in Illinois in People v. Altánese (1984), 104 Ill. 2d 504, 526. The first prong requires a showing that counsel’s performance fell outside the range of competence demanded of attorneys in criminal cases. Next, defendant must establish that counsel’s deficient performance prejudiced his defense to the extent that he was denied a fair trial. (Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064.) This prong requires a showing that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. (People v. Horton (1991), 143 Ill. 2d 11, 23.) Claims of ineffectiveness may be disposed of on the ground that the defendant suffered no prejudice from the claimed errors, without deciding whether the errors were serious enough to constitute less than reasonably effective assistance. People v. Pecoraro (1991), 144 Ill. 2d 1, 13; People v. Jones (1991), 144 Ill. 2d 242, 253.

In this case, defendant asserts that he suffered prejudice because his attorneys allowed the sentencing hearing to proceed without obtaining certain reports concerning defendant’s background and history. In order to sustain his burden of proving ineffective assistance of counsel, defendant must not only show that the documents would have been helpful to his defense, but also that they contained evidence which was not previously placed before the sentencing court. However, the record reflects that a lengthy history of defendant’s background was presented to the sentencing court through the ^contradicted testimony of defendant and his sister, through the presentence report, and the testimony of the psychologist who examined defendant, all of which was supported by letters from various persons from defendant’s past. Without the omitted documents incorporated into the record, we cannot assess the degree of impact they might have had at sentencing, if any. Therefore, we find that defendant has failed to sustain his burden of proving the omission of the documents prejudiced his defense such that he was denied a fair sentencing hearing.

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

Affirmed.

WOODWARD and DUNN, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOSE GARCIA, Defendant-Appellant.
    Second District
    No. 2—90—0693
    Opinion filed May 29, 1992.
    G. Joseph Weller and Sherry R. Silvern, both of State Appellate Defender’s Office, of Elgin, for appellant.

      James E. Ryan, State’s Attorney, of Wheaton, and Lawrence D. O’Gara, of Chicago (William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GEIGER

delivered the opinion of the court:

After a bench trial, the defendant, Jose Garcia, was convicted of armed robbery (Ill. Rev. Stat. 1989, ch. 38, par. 18 — 2(a)) and sentenced to six years’ incarceration. On appeal, he argues that the conviction must be reduced to simple robbery (Ill. Rev. Stat. 1989, ch. 38, par. 18 — 1(a)) and the cause remanded for resentencing because the evidence failed to prove beyond a reasonable doubt that he was armed with a dangerous weapon at the time he committed the offense. We disagree and affirm.

On the evening of February 1, 1990, defendant robbed Mr. A’s Liquor Store in Carol Stream. At trial, Bethany Jessop testified that at about 9 p.m. that evening she was working alone at the store. She took a final reading on the cash register, placed about $1,000 into a deposit bag, and left some money in the register drawer. As she walked to the store’s backroom with the bag, she heard the front door open. She walked back toward the counter and encountered the defendant. The defendant produced a gun from his jacket and told Jessop to give him the bag. Jessop testified that the gun was small, black and hand-held and that “[i]t looked real” to her. She could not say whether the gun was a revolver. Jessop gave the defendant the bag.

The defendant tucked the gun into his jacket pocket and ordered Jessop to walk toward a beer cooler in the back of the store. At this point, a woman entered the store. The defendant told Jessop not to say anything or he would shoot her. With her back to the defendant, Jessop walked toward the counter. Jessop spoke briefly to the woman, who then left. Jessop walked back to the cooler. Defendant took two six-packs of beer and left the store through the back door. After the defendant left, Jessop called the police and store owner Donald Antonacci.

Carol Stream police officer Hunter Gilmore testified that at about 9:24 p.m. on February 1, 1990, he and two other officers were dispatched to the area of the store. After receiving a description of the suspect, Gilmore drove to an apartment complex two or three blocks from the store. About 15 or 20 minutes after receiving the dispatch, he saw the defendant walking through the front yard of 623 Gundersen.

Gilmore got out of his car and observed that the defendant was concealing something under his coat. When Gilmore asked him what he was concealing, the defendant, with Gilmore’s assistance, pulled out the store’s deposit bag. Inside the deposit bag were $830 in cash and various store receipts. No firearm was found on the defendant or in the immediate area of the arrest nor was the weapon ever recovered.

The defendant concedes that he was properly found guilty of robbery. He argues, however, that the State did not prove beyond a reasonable doubt that, during the robbery, he carried on or about his person or was otherwise armed with a dangerous weapon (Ill. Rev. Stat. 1989, ch. 38, pars. 18 — 1(a), 18 — 2(a)). The defendant argues that Jessop’s testimony about the gun was limited to the statement that the gun was “small and black.” The defendant also argues that her testimony was uncorroborated in that no gun was ever found or introduced into evidence. From this, the defendant argues that the evidence was insufficient to prove that he was armed with a dangerous weapon while he robbed the store. We disagree.

The issue for this court is whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the essential elements of the crime were proved beyond a reasonable doubt. (People v. Young (1989), 128 Ill. 2d 1, 48.) We will not substitute our judgment for that of the fact finder on matters of witness credibility unless the evidence itself is so implausible, improbable or unsatisfactory as to raise a reasonable doubt of the defendant’s guilt. People v. Slim (1989), 127 Ill. 2d 302, 307.

Whether a defendant is armed with a dangerous weapon is ordinarily a question for the fact finder unless the character of the weapon is such as to admit of only one conclusion. (People v. Skelton (1980), 83 Ill. 2d 58, 66; People v. Meadows (1981), 92 Ill. App. 3d 1028, 1031.) A gun may be a dangerous weapon even if it is unloaded (People v. Hill (1977), 47 Ill. App. 3d 976) or incapable of firing (People v. De La Fuente (1981), 92 Ill. App. 3d 525, 535-36).

Here Bethany Jessop testified unequivocally and without impeachment that the defendant was carrying a gun during the robbery. She saw the gun twice in the open from close range, and it "looked real” to her. The photographs in evidence enabled the trial judge to conclude that the lighting conditions were favorable for such an identification.

The witness was not required to describe the gun to any particular degree of detail or precision. In People v. Thomas (1989), 189 Ill. App. 3d 365, 371, the court upheld a conviction of armed robbery based on the uncontradicted testimony of one eyewitness that the defendant was holding a gun in his hand. In People v. Meadows (1981), 92 Ill. App. 3d 1028, the court held that eyewitness testimony that the defendant carried an object that resembled “a shotgun or something” was sufficient for the fact finder to infer that the defendant was armed with a dangerous weapon. In People v. Moore (1973), 14 Ill. App. 3d 361, 363, the eyewitness was not sure whether the object she saw in the defendant’s hand was a gun or a knife. The appellate court upheld the defendant’s conviction of armed robbery, reasoning that either way the fact finder could infer that the defendant used a dangerous weapon.

Jessop concluded, based on her ample opportunity to observe, that the defendant had a gun and that the gun looked real. This was enough to enable the fact finder to conclude that the defendant was carrying a dangerous weapon. The defendant’s repeated threats to shoot Jessop were also circumstantial evidence that he was armed with a dangerous weapon. (Meadows, 92 Ill. App. 3d at 1030-31.) As the trial court credited Jessop’s testimony, it was entitled to find defendant guilty beyond a reasonable doubt of armed robbery.

The judgment of the circuit court of Du Page County is affirmed.

Affirmed.

NICKELS and WOODWARD, JJ., concur.


author: PRESIDING JUSTICE INGLIS

text:
    H. KENT HELLER, Plaintiff-Appellee and Cross-Appellant, v. TRAVEL AMERICA, INC., et al., Defendants (Transcontinental Insurance Company, Citation Defendant-Appellant and Cross-Appellee).
    Second District
    No. 2—91—0677
    Opinion filed May 19, 1992.

      Robert G. Black, D. Kendall Griffith, and Adam S. Kreuzer, all of Hinshaw & Culbertson, of Chicago, for appellant.
    H. Kent Heller, of H. Kent Heller & Associates, P.C., of Naperville, appellee pro se.

   PRESIDING JUSTICE INGLIS

delivered the opinion of the court:

Transcontinental Insurance Company (Transcontinental), citation defendant, appeals from the trial court’s decision that awarded H. Kent Heller (Heller), plaintiff, $17,028.47 in a citation proceeding under section 2 — 1402 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1402). Transcontinental had moved to quash the citation to discover assets or, alternatively, to adjudicate the amount owed. Transcontinental’s issues on appeal are: (1) whether the trial court erred in not declaring the default judgment against Transcontinental’s insured, General Mechanical Service Corporation (GMSC), void for failure to include Transcontinental as a necessary and indispensable party; (2) whether citation proceedings may be maintained against an insurer for payment of a default judgment predicated on a claim of fraud; and (3) whether the trial court erred in awarding an amount beyond that covered under Transcontinental’s warranty policy. Heller cross-appeals claiming that the amount awarded should have been equal to the unpaid portion of the judgment, $36,453.47. We dismiss the appeal for the reasons stated below.

In September 1985, Heller purchased a motor home from Travel America, Inc. (Travel America), that was manufactured by Winnebago Industries, Inc. (Winnebago). Heller paid $5,024.38 as a down payment and financed $20,000 with Chemical Financial Services, Inc. (Chemical). Included in Heller’s purchase was a vehicle service contract administered by GMSC, a Colorado corporation. Transcontinental insured GMSC’s service contracts.

Heller claimed that the motor home had “manifested various defects, including but not limited to [e]ngine breakdowns, engine rods, engine turbocharger, and other various defects.” After Heller tried unsuccessfully to have the vehicle repaired under the warranty service contract, Heller filed this action. Counts I and II of the amended complaint, filed on March 2, 1989, were claims under the Magnuson-Moss Warranty Act (15 U.S.C.A. §2301 et seq. (West 1982)) against Travel America and Winnebago. Count III, the count pertinent to this appeal, was a claim under the Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act) (Ill. Rev. Stat. 1987, ch. 121V2, par. 261 et seq.) against Travel America and GMSC. Count IV was a claim against Chemical to revoke the retail installment contract pursuant to Federal regulation 16 C.F.R. §433.2 (1992).

Count III specifically alleged that Heller was induced by Travel America to purchase the GMSC vehicle service contract. After discovering defects in the motor home, Heller contacted Travel America and GMSC for warranty repairs. GMSC denied Heller’s claim in a letter dated April 6, 1988, because of “inadequate service records.” Heller claimed that Travel America’s and GMSC’s fraudulent conduct caused him damage.

The vehicle service contract stated that Travel America would “repair, replace, or reimburse the Purchaser for reasonable costs to repair or replace any of the covered parts *** due to mechanical breakdown.” The contract also stated that “[e]vidence of proper service must be submitted in the event of a claim.” GMSC was the contract administrator of the agreement.

GMSC’s counsel filed an appearance after the original complaint was filed on May 27, 1988. GMSC filed a motion to dismiss certain counts of the original complaint. The counts were dismissed without prejudice on March 2, 1989, and Heller filed the above-mentioned amended complaint. Thereafter, GMSC did not file an answer. On September 14, 1989, counsel for GMSC withdrew because GMSC ceased operations.

Heller filed a motion for default against GMSC on June 19, 1990. Noel Prather, a representative with Transcontinental, was served by mail with notice of the motion. The court’s order of June 28, 1990, granted default in favor of Heller and ordered prove up. The notice of default was filed on July 9, 1990, and notice was served by mail to Noel Prather of Transcontinental. Heller also obtained default against Travel America.

Heller filed an affidavit on September 11, 1990, proving the losses he incurred because of the defective motor home. The costs and expenses were:

“a. Down payment $5,034.00. Installment payments $10,656.00. Repairs unreimbursed by warranty company $9,088.47, loss of use (vehicle undriveable) 4-4-86 through 7-12-86 $2,970.00.1-26-88-8-29-88 $6,480.00.
b. Additional repairs necessary to repair engine $5,300.00. Attorneys fees incurred through 8-24-90 $19,425.00 (not including time spent by attorney in plaintiff’s office, prior to time Lehrer, Flaherty & Canavan retained). Costs of litigation, including expert witness fees c. $4,500.00. TOTAL:' $63,453.47.”

On September 25, 1990, the trial court entered a default judgment against GMSC and Travel America, jointly and severally, in the amount of $63,453.47. Heller settled with Winnebago for $18,000 and with Chemical for $8,000. Thereafter, Heller filed a stipulation to dismiss the complaint. An accompanying order was attached, which stated:

“ORDER
This cause coming on to be heard on this date upon the Stipulation for Dismissal with prejudice filed herein by the above plaintiffs) and above named defendant(s), and the Court having examined said Stipulation and being fully advised in the premises, finds that this cause of action has been fully compromised and settled and the parties have stipulated and agreed to dismissal of the complaint with prejudice, and that the court further finds that all costs have been paid.
IT IS THEREFORE ORDERED that the complaint of plaintiffs) against the defendant(s) be and the same is hereby dismissed with prejudice.
Done this 15th day of November, A.D. 1990.”

After dismissing the complaint, Heller served citations to discover assets to Travel America, GMSC, and Transcontinental. Transcontinental moved to quash the citation or, alternatively, for an adjudication of the amount owed. Transcontinental attached a copy of its insurance policy with GMSC. The policy stated that GMSC would be indemnified by Transcontinental for warranty claims GMSC was obligated to pay.

Transcontinental also filed a motion to void or vacate the default judgment, arguing that Heller had failed to join Transcontinental as a necessary and indispensable party and that the notices of default were improperly served. The trial court denied Transcontinental’s motion to vacate based on Transcontinental’s lack of standing and also denied its motion to quash.

Pursuant to the motion for adjudication, the trial court ordered Transcontinental to pay Heller $17,028.47. Heller had previously settled with Winnebago for $18,000 and with Chemical for $8,000. The trial court subtracted what it believed was a combined “$27,000” settlement and the $19,425 figure for attorney fees from the $63,453.47 default judgment to come up with $17,028.47.

Transcontinental filed a timely appeal on June 14, 1991. Heller apparently filed his cross-appeal on July 2, 1991.

We need not address either Transcontinental’s contention that we lack jurisdiction to hear Heller’s cross-appeal or any of the other substantive contentions. We dismiss this appeal because Heller filed a stipulation to dismiss the entire cause of action on November 15, 1990, thereby giving notice that the matter had been “satisfactorily compromised and settled.”

This court entered an order on March 25, 1992, which stated as follows:

“The court has examined the record and finds an order entered by the trial court on November 15, 1990, which found that the cause of action had been fully compromised and settled and ordered the complaint dismissed with prejudice. Now, therefore, on the court’s own motion, the appellant is given 10 days to inform this court why the appeal should not be dismissed and the citation proceedings stricken for failure of the trial court to have jurisdiction to allow citation proceedings after dismissal with prejudice on November 15, 1990. The appellee to have 10 days thereafter to respond.”

Transcontinental responded on Monday, April 6, 1992, and, not surprisingly, agreed that Heller’s stipulation to dismiss “fully compromised and settled” the cause of action as to all defendants. The previous judgments against Travel America and GMSC were no longer “subject to enforcement,” which is a requirement to supplemental proceedings under Supreme Court Rule 277(a) (134 Ill. 2d R. 277(a)).

Heller responded by claiming that the November 15, 1990, order did not vacate the previous judgments entered against Travel America and GMSC. Heller stated that the case was dismissed because “all of the claims against all of the parties [have] been resolved, three by settlement and two by Judgment.” Heller’s very next sentence states that the judgments against Travel America and GMSC remain “unsatisfied.” We fail to see how all claims could be resolved and certain judgments remain unsatisfied.

Although we find no case that deals squarely with the situation at hand, a few cases are instructive. In In re Marriage of Pitulla (1990), 202 Ill. App. 3d 103, the court determined whether the satisfaction and release of a judgment barred an appeal on the amount of the judgment. The Appellate Court, First District, construed section 12 — 183(h) of the Code of Civil Procedure, which states:

“(h) Upon the filing of a release or satisfaction in full satisfaction of judgment, signed by the party in whose favor the judgment was entered or his or her attorney, the court shall vacate the judgment, and dismiss the action.” (Ill. Rev. Stat. 1989, ch. 110, par. 12-183(h).)

The court held that section 12 — 183(h) did not preclude the judgment creditor’s right to appeal and stated:

“We believe that the purpose of section 12 — 183 is twofold: (1) to serve as proof of payment of the judgment, barring any further attempt by the judgment creditor to enforce the judgment, and (2) to stop the accrual of post-judgment interest. Once a satisfaction of judgment has been filed in the trial court, the statute places a limitation on that court’s jurisdiction to conduct further proceedings on the issue, but does not bar an appeal.” (Emphasis added.) Pitulla, 202 Ill. App. 3d at 110.

Pappas v. Cappell (1938), 297 Ill. App. 301, also dealt with the effect of filing a satisfaction statement. The plaintiff filed a “satisfaction piece” cancelling a judgment on certain notes held by the plaintiff. The court held that the filing of the satisfaction was evidence of the intent to cancel the judgment based on those notes and that a contrary intention was not indicated. Pappas, 297 Ill. App. at 303-04.

On its face, the stipulation to dismiss barred the bringing of any action based on the claim being dismissed. We hold that this would include citation proceedings to discover assets. Heller may have intended to release only Winnebago and Chemical, but a contrary intention is indicated by the stipulation to dismiss. We believe that the four corners of that document must be upheld. Thus, we dismiss this appeal and vacate the trial court’s May 16, 1991, order because the underlying cause of action has been dismissed with prejudice.

Appeal dismissed and order vacated.

NICKELS and BOWMAN, JJ., concur.