author: JUSTICE O’CONNOR

text:
    CARYL LEE RIMKUS, n/k/a Caryl Lee Murray, Petitioner-Appellant, v. RONALD J. RIMKUS, Respondent-Appellee.
    First District (1st Division)
    No. 1—89—2663
    Opinion filed June 11, 1990.

      McBride, Baker & Coles, of Chicago (Paul D. Frenz, of counsel), for appellant.
    Mathias & Schmarak, P.C., of Broadview (Barry J. Schmarak, of counsel), for appellee.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Petitioner Caryl Murray filed a petition for rule to show cause and for child support on July 26, 1989, in the circuit court of Cook County against respondent Ronald Rimkus. Petitioner sought to enforce a provision in a marital settlement agreement regarding child support which was incorporated in the judgment for dissolution of marriage entered on December 27, 1984. Following a hearing on August 30, 1989, the trial court entered an order which dismissed the rule to show cause, denied child support arrearage, and set monthly child support after considering respondent’s net income. Petitioner appeals, raising three issues: (1) whether the court’s finding that respondent did not violate the judgment was against the manifest weight of the evidence; (2) whether child support arrearage was due; and (3) whether respondent’s business expenses should have been deducted to determine his net income.

The marital settlement agreement under the heading “Child Support” noted that respondent was then unemployed and without income at that time. Therefore, th'e parties agreed to request the court to reserve judgment on the issue. The judgment of dissolution stated that the court retained jurisdiction to modify or enforce the judgment and “specifically reserves the issue of child support.” The agreement was incorporated in the judgment. The second paragraph regarding child support stated:

“The husband agrees to notify the wife immediately upon receiving any income and to pay to the wife, as and for the support of the parties minor child, a fair and equitable portion thereof. The husband further agrees that if and when such income is of a substantial amount and/or is received on a regular and/or periodic basis that he will immediately enter into discussions with the wife regarding child support payments and that such agreement will be submitted to the Court and if the parties are unable to agree then the matter is to be presented to this court for its determination.”

The evidence at the hearing as presented through petitioner’s testimony showed that petitioner had a conversation with respondent at the beginning of 1988. He told her that he had a new job; however, he did not indicate that he had any money. Respondent told her that he would pay support when he had some money. He did not indicate at that time or any subsequent time how much money he was earning with his new job. Petitioner asked him subsequently in 1988 whether he was going to make support payments, and he said that he would when he had the money. She had no discussions with respondent in 1989 regarding his income and could not remember asking him to pay support in 1989. Respondent paid a total of $600 in July and August 1989. Petitioner also said that respondent told her that he wanted their son and did not want to pay child support.

Payments had been made by respondent on a sporadic basis from mid-1985 until February 1987. Respondent paid $2,300 in support in 1986, on an income of $2,600, and $200 in 1987, on an income of $2,300. However, no issue is raised with respect to these payments.

Respondent testified that he spoke with petitioner shortly after he began a new job in January 1988. They discussed the fact that he was employed and that he was not seeing their son. Petitioner told respondent, “I don’t want your money. Come and see your son.” He said that petitioner did not ask for any child support at that time. He indicated that he then saw his son, but that no specific agreement regarding child support was made.

It was established that respondent had a gross income of $26,250 in 1988, or $500 per week. He was earning the same amount in 1989. The court found that respondent had complied with the judgment when he notified petitioner that he had a job. When no agreement on support was reached, it was incumbent on petitioner to come into court under the terms of the judgment. Arrearage of support was therefore denied. Respondent was ordered to pay $255 per month for child support beginning in July 1989.

In her first issue, petitioner argues that respondent was required to pay a “fair and equitable portion” of any income as child support under the terms of the agreement. She claims that he was therefore required to notify petitioner of his income and to enter into discussions with her regarding payments. She characterizes the judgment as intended to be “self-executing.” Therefore, she concludes that respondent should have been found in contempt.

Respondent asserts that the evidence showed a conflict between the parties, and under the terms of the judgment the support issue should have been presented to the court. He says, however, that petitioner waited until July 1989 to file her contempt petition when in reality it was a petition to modify the judgment. He argues that he complied with the judgment and that at any rate there was no willful refusal to pay support based upon the evidence.

The trial court can properly enforce provisions of a settlement agreement incorporated into a judgment of dissolution. (In re Marriage of Moriarty (1985), 132 Ill. App. 3d 895, 478 N.E.2d 537.) The interpretation of a marital settlement agreement is a question of law, and the same rules that apply to the construction of contracts govern such interpretation. (In re Marriage of Talmadge (1989), 179 Ill. App. 3d 806, 534 N.E.2d 1356.) In interpreting the provisions, the court seeks to give effect to the intentions of the parties. (Moriarty, 132 Ill. App. 3d at 898.) Clear and unambiguous agreements must be given their ordinary and natural meaning. (Talmadge, 179 Ill. App. 3d at 813.) Judgments of dissolution should be reasonably construed, however; those providing child support receive special care and consideration by the courts. Moriarty, 132 Ill. App. 3d at 898.

In reviewing the present marital settlement agreement regarding child support, we affirm the trial court’s determination. First, any income received by respondent was to be reported to petitioner and a “fair and equitable” amount thereof was to be paid to petitioner as support. Based upon a reading of the remainder of the provision and evidence at the hearing, the first sentence was intended to address insubstantial, sporadic receipts of income by respondent as was the case between 1985-1987. At the time the settlement agreement was made, respondent was unemployed and without income. He had his own business in 1986 and 1987. He paid irregular support payments from the income received in 1986 and 1987, and petitioner raised no issue with those payments. Nor did she claim that he was obligated to enter discussions to set support payments based on that income at that time.

When the income became “substantial,” “regular,” and/or “periodic,” respondent was to enter into discussions with petitioner to set support payments. The only obligation on respondent at that time was to enter into discussions with petitioner to set support payments. Clearly, when respondent became employed in January 1988, he had at least “regular” income in that he was earning $500 per week. He was obligated to enter into discussions with petitioner to try to set support payments.

The settlement agreement further provided that an agreement on payments would be submitted to the court which had reserved the issue of support. Thus, the dissolution judgment and settlement agreement did not provide for an award of child support but required future court determination on the matter. (See Connor v. Watkins (1987), 158 Ill. App. 3d 759, 511 N.E.2d 200; Nerini v. Nerini (1986), 140 Ill. App. 3d 848, 488 N.E.2d 1379.) The settlement agreement was not “self-executing” as petitioner claims.

If no agreement on payments was reached, the matter was also to be submitted to the court for a determination. Obviously, if the parties had no discussions regarding support payments, an agreement would not be possible.

The evidence was conflicting as to whether the parties tried to set support payments. Petitioner claimed that she asked respondent about payments on two occasions, and he said that he would pay when he had money. Respondent claimed that petitioner indicated she was not concerned with payments. At any rate petitioner’s own testimony showed that respondent did not enter into an agreement regarding support payments despite the fact that he had a job. Even though respondent did not tell petitioner he had regular income, this should not have prevented her from seeking court intervention. Petitioner was aware that respondent was employed even while he was claiming that he had no money for support payments. When no discussions or agreement were forthcoming, the settlement agreement provided that the matter be submitted to the court. It took into consideration a situation just as this one by requiring court intervention when no agreement could be reached. Based upon the dissolution judgment, the settlement agreement incorporated therein and the evidence before the trial court, we do not find that the trial court erred in holding that respondent did not violate the terms of the dissolution judgment.

This conclusion leads us to affirm the denial of child support arrearage. As stated above, the settlement agreement required a court determination of the child support payments when respondent had “substantial,” “regular and/or periodic” income whether the parties agreed to an amount or not. There was no order of child support in effect until petitioner sought such an order with her petition.

Lastly, petitioner claims that the trial court allowed respondent to deduct $6,696 in nonreimbursed business expenses from his gross income to determine net income. Respondent was a commissioned salesman who used Schedule C of his Federal income tax return to reduce his income under section 505 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1987, ch. 40, par. 505). After also deducting taxes, the court applied the 20% statutory guideline and arrived at a monthly payment of $255 in child support. Petitioner asserts that nonreimbursed business expenses cannot be deducted to determine net income under section 505(a)(3) of the Illinois Marriage and Dissolution of Marriage Act. Ill. Rev. Stat. 1987, ch. 40, par. 505(a)(3).

Respondent claims that nonreimbursed business expenses are deductible to determine net income under section 505(a)(3)(h). (Ill. Rev. Stat. 1987, ch. 40, par. 505(a)(3)(h).) Both petitioner and respondent rely upon In re Marriage of McBride (1988), 166 Ill. App. 3d 504, 519 N.E.2d 1095, to support their arguments.

The facts in McBride clearly distinguish it from the case at bar. The parties in McBride entered into an agreement regarding child support. The agreement defined the husband’s net income, and the husband claimed nonreimbursed business expenses were deductible to determine his net income. However, the court found that under the terms of the agreement such expenses were not deductible.

The question of deductible business expenses under section 505 arose in McBride when the husband claimed they should be excluded from his gross income because they were equivalent to “[expenditures for repayment of debts that represent reasonable and necessary expenses for the production of income.” (Ill. Rev. Stat. 1987, ch. 40, par. 505(a)(3)(h).) The appellate court would not disturb the trial court’s finding that there was insufficient evidence that the expenditures were necessary to generate income. It also observed that the husband had offered no authority that nonreimbursed business expenses are the equivalent of debts incurred to produce income, nor did the court’s research reveal any. Moreover, the parties’ agreement had defined net income.

The respondent and petitioner herein have not provided any authority for their respective positions other than McBride, nor have we found any Illinois case specifically on point. However, in Stern v. Stern (1989), 179 Ill. App. 3d 313, 534 N.E.2d 533, one of the points raised on appeal concerned the husband’s evidence of his net income under section 505. He had represented that his net income was $1,800 per month after business expenses were deducted. The appellate court found that the trial court did not have sufficient evidence before it regarding the husband’s income since he did not supply documentation of his business expenses. Implicit therein is the fact that business expenses would be deductible. See also In re Marriage of Erickson (1985), 136 Ill. App. 3d 907, 483 N.E.2d 692 (wherein the court noted that the trial court had evidence of the husband’s financial condition including his 1983 income which indicated he earned roughly $54,000 and had $17,000 in business expenses as a self-employed sales representative).

In In re Marriage of Dwan (1982), 108 Ill. App. 3d 808, 439 N.E.2d 1005, a temporary order for maintenance and child support required the husband to pay the greater of 40% of his net income, defined as income less taxes and business expenses, or $1,250 per month. The dissolution judgment ordered the husband to pay $2,500 per month in maintenance and child support. On appeal he claimed that this amount was excessive since he contended his net income was only $40,000 per year. The appellate court was not convinced that his net income accurately reflected his ability to pay under sections 504(b) and 505(a). He had income of $150,000 from his medical practice in 1980, from which he deducted $87,000 in business expenses, including 11 business trips, car depreciation, dwelling depreciation for that part used as an office, and various “one-time-only” deductions. He also apparently deducted a salary he paid to a woman with whom he lived for bookkeeping work. The woman also accompanied him on three business trips, and he paid all the rent. The appellate court found that the trial court could reasonably conclude that the husband had more spendable income than he claimed.

We read Dwan as providing that nonreimbursed business expenses are deductible to determine net income. However, the business expenses must be shown to be reasonable and necessary.

Looking at other jurisdictions which have enacted legislation based upon the Uniform Marriage and Divorce Act, business expenses have been deducted to determine net income to pay child support based on the concept of the parent’s ability to pay. In In re Marriage of Crowley (Colo. App. 1983), 663 P. 2d 267, the Colorado Court of Appeals held that obligations relating to reasonable and necessary expenses associated with maintaining the structure and solvency of a business or the production of income can be satisfied before payment of child support. Net income after reasonable and justifiable expenses was a primary consideration in determining the ability to pay support.

The Minnesota Court of Appeals in Martin v. Martin (Minn. App. 1985), 364 N.W.2d 475, looked at the statutory guidelines to determine net income to pay child support which allowed deductions for taxes, social security, and other payroll-type deductions. There was no provision for business deductions or expenses incurred in generating income or cases interpreting the definition as applied to self-employed obligors. However, the explanatory section in the guidelines provided that certain criteria were considered in the guidelines: all earnings, income, resources of the obligor; basic living needs of the obligor; and financial needs of the child. The appellate court upheld the trial court’s determination of the husband’s net income which had taken into consideration business expense deductions for meals and lodging as an independent over-the-road truck driver.

These other jurisdictions deducted business expenses in order to determine the non-custodial parent’s ability to pay child support from net income. Our statute provides that “the financial resources and needs of the non-custodial parent” be considered a relevant factor in applying the statutory guidelines. (Ill. Rev. Stat. 1987, ch. 40, par. 505(a)(2)(e).) However, section 505(a)(3) is more specific in that it defines net income for purposes of setting child support. Section 505(a)(3)(h) allows deductions for “[ejxpenditures for repayment of debts that represent reasonable and necessary expenses for the production of income.” (Ill. Rev. Stat. 1987, ch. 40, par. 505(a)(3)(h).) We find that section 505(a)(3)(h) allows the deduction of nonreimbursed business expenses which are “reasonable and necessary for the production of income” to determine net income. Since petitioner did not challenge respondent’s Schedule C nonreimbursed business expenses on any basis other than that they were not deductible under section 505(a)(3), we affirm the trial court’s decision.

The judgment of the circuit court is affirmed.

Affirmed.

BUCKLEY, P.J., and CAMPBELL, J., concur.


source: Caselaw Access Project

author: JUSTICE STEIGMANN

license: Public Domain

text:
    SOPHIA CROSS, Plaintiff-Appellant, v. AINSWORTH SEED COMPANY et al., Defendants-Appellees (Robert Hubner et al., Counterplaintiffs; De Kalb Pfizer Genetics, Intervenor and Counterdefendant-Appellee; Clayton R. Ainsworth, Counterdefendant; Ainsworth Seed Company et al., Third-Party Plaintiffs; Pfizer Genetics, Inc., Third-Party Defendant-Appellee).
    Fourth District
    No. 4—89—0607
    Opinion filed May 9, 1990.

      Donald K. Birner, of Pekin, for appellant.
    Steven B. Morgan, of Perbix & Morgan, of Havana, and James E. Mc-Cabe, of Williamsport, Indiana, for appellees Robert Hubner and Jim Hubner.
    Gregory A. Cerulo, Mary W. McDade, and David G. Wentz, all of Quinn, Johnston, Henderson & Pretorius, of Peoria, for appellee Pfizer Genetics, Inc.
    Heyl, Royster, Voelker & Allen, of Peoria (Karen L. Kendall, Rex K. Linder, and Nicholas J. Bertschy, of counsel), for appellee De Kalb Pfizer Genetics.
    William L. Hatch and Arnold E Blockman, both of Hatch, Blockman, McPheters, Fehrenbacher & Lyke, of Champaign, for appellees Ainsworth Seed Co., Edward Nunn, and Frank Short.
   JUSTICE STEIGMANN

delivered the opinion of the court:

Plaintiff brought this action to recover damages for claims alleging primarily products liability and negligence of defendants in designing, assembling, installing, or constructing a conveyer-belt system which resulted in personal injury to plaintiff.

After extensive discovery, defendants filed motions for summary judgment asserting the statute of repose of section 13—214(b) of the Code of Civil Procedure (Code) as an affirmative defense. (Ill. Rev. Stat. 1987, ch. 110, par. 13—214(b).) The trial court granted defendants’ motions and entered judgment in favor of defendants and against plaintiff on count V of plaintiff’s original complaint and on counts VI, VII, and VIII of plaintiff’s revised amended complaint. Plaintiff then filed a request for leave to amend her complaint which the trial court denied as untimely.

On September 27, 1985, plaintiff’s scalp was ripped from her head when her hair was caught in the unguarded driveshaft of a sorting conveyer belt located at the De Kalb Pfizer Genetics plant in Mason City, Illinois.

On May 1, 1986, plaintiff filed a complaint against Ainsworth Seed Company (Ainsworth), New London Engineering, and New Idea Corporation. Various counts of plaintiff’s complaint arose out of the above-described incident and were based on products liability and negligence. In her complaint against Ainsworth, plaintiff alleged that sometime prior to September 27, 1985, Ainsworth designed, manufactured, sold, and installed at the premises of De Kalb Pfizer Company (De Kalb), or its successor, certain conveyer belts, assembly gearing, and corn buskers, which were affixed to the floor of the premises. Ainsworth filed its answer on June 2, 1986, alleging no affirmative defense.

On December 2, 1986, De Kalb filed a petition to intervene to protect its workers’ compensation lien. De Kalb’s intervention was granted by the trial court on December 15, 1986.

On June 26, 1987, plaintiff filed a revised amended complaint against the three original defendants and Clayton R. Ainsworth (Clayton), Edmund Nunn (Nunn), Frank Short (Short), Cigna Companies, De Kalb, Robert Hubner (Robert) (doing business as Hubner Erection), and Kee Conveyers, Inc. The counts against Clayton, Nunn, and Short alleged that they designed, assembled, installed, or constructed for Ainsworth or its successors certain conveyer-belt assembly and gearing which were affixed to the floor. The revised complaint further alleged that plaintiff was injured as a result of the negligence of the defendants in the design, manufacture, and installation of the conveyer system. On August 11, 1987, Clayton, Nunn, and Short filed an answer, but alleged no affirmative defense.

On September 21, 1987, plaintiff filed another count against James Hubner (James). On October 23, 1987, James and Robert filed their answer and a counterclaim for contribution against De Kalb and Clayton.

On April 22, 1988, Ainsworth, Clayton, Nunn, and Short filed a motion for summary judgment alleging that plaintiffs cause of action was barred by section 13—214(b) of the Code in that, prior to the filing of her complaint, more than 10 years had elapsed since the defendants had anything to do with the design, planning, supervision, observation, or management of construction of the improvement to real property. In support of the summary judgment motion, defendants filed several affidavits. The affidavits stated that none of the individuals after 1972 had anything to do with the design, planning, supervision, observation, management, or construction of the conveyer belt and assembly gearing which were affixed to the floor, that no other employee of Ainsworth had anything to do with the improvement to the premises after 1972, and that after 1972, the premises in question were not owned, occupied, or controlled by Ainsworth.

On May 11, 1988, Robert and James filed their motion for summary judgment also asserting, as an affirmative defense, the statute of repose. Affidavits of James and Robert were incorporated into the motion. Subsequently, plaintiff filed motions to strike the affidavits of the defendants in support of their motion for summary judgment.

On June 3, 1988, and June 12, 1988, plaintiff filed a response to James and Robert’s motion for summary judgment and a response to Ainsworth’s motion for summary judgment. Plaintiff attached to her response affidavits and exhibits in opposition to the summary judgment motions, including excerpts from Clayton’s deposition, excerpts from Nunn’s deposition, excerpts from Tom Ainsworth’s deposition, excerpts from Howard Lockenour’s deposition, excerpts from Robert’s deposition, excerpts from James’ deposition, an affidavit and pictures of Duane Snyder (Snyder), an affidavit of Robert Pietrzak (Pietrzak), and Ainsworth’s depreciation schedule.

On June 3, 1988, James and Robert filed more excerpts from various depositions in support of their summary judgment motions. On June 3, 1988, plaintiff filed a supplemental response to the summary judgment motions of the defendants.

On June 10, 1988, James and Robert filed a reply to plaintiff’s response to their summary judgment motion. On June 10, 1988, Clayton, Nunn, Short, and Ainsworth filed a memorandum in support of their motion for summary judgment. On June 10, 1988, defendants filed the supplemental affidavits of Clayton and Short.

Clayton’s supplemental affidavit stated that in 1969 the sorting building where the plaintiff was injured was constructed and that conveyors and husking beds were installed in the building for the purpose of sorting seed corn. The affidavit also indicated that Ainsworth was incorporated in 1972 and never had anything to do with the sorting building in question.

On May 13, 1988, Clayton, Nunn, Short, and Ainsworth filed a motion for leave of court to file a counterclaim for contribution against De Kalb and a third-party complaint for contribution against Pfizer Genetics, Inc. (Pfizer). On June 16, 1988, defendants’ counterclaim and third-party complaint were filed. On June 16, 1988, defendants filed their first affirmative defense to plaintiff’s complaints based upon the statute of repose.

On June 23, 1988, Judge Lipe denied all of the defendants’ motions for summary judgment, finding that section 13—214(b) of the Code did not bar plaintiff’s claim. On August 1, 1988, defendants filed a motion to reconsider the denial of the summary judgment motions of Ainsworth, Clayton, Nunn, and Short.

On August 1, 1988, counterdefendant De Kalb filed a motion for summary judgment, alleging the same statute of repose defense as asserted by defendants.

On August 5, 1988, and August 25, 1988, third-party defendant Pfizer filed a motion for change of venue from Judge Lipe, alleging prejudice on his part. The motion was denied at a hearing on August 9, 1988. Additionally, on August 9, 1988, Judge Lipe entered a second-amended order regarding the defendants’ summary judgment motions. In that order, the judge denied defendants’ summary judgment motions regarding the statute of repose, specifically finding that “section 13 — 214(b) shall not be applied retroactively to any act or omissions occurring prior to the effective date of the statute.”

On August 16, 1988, Pfizer filed a motion to reconsider change of venue.

On August 18, 1988, Judge Lipe entered an order denying defendants’ motion for an interlocutory appeal from the denial of their motions for summary judgment on their affirmative defense dealing with the statute of repose.

On August 29, 1988, Judge Lipe entered an order granting third-party defendant Pfizer’s motion to reconsider the change of venue and recused himself from the case, finding that, “[a]ll rulings on or after August 9, 1988, as announced from the bench are vacated. All rulings entered in writing on or after August 9, 1988, are hereby vacated.” On September 1, 1988, plaintiff filed a motion to reconsider the court’s order for change of venue. That motion was denied by the court on September 2, 1988.

On September 7, 1988, Judge Fred W. Reither was assigned the case. On October 31, 1988, Robert and James filed a motion for change of venue from Judge Reither, alleging prejudice on the part of the judge. On November 1, 1988, the motion for change of venue was allowed by Judge Reither.

On November 16, 1988, the case was assigned to Judge Carson D. Klitz.

On January 19, 1989, defendants sent a notice of hearing on defendants’ motion to reconsider the denial of their summary judgment motions before Judge Klitz. On February 10, 1989, counter-defendant De Kalb filed additional authority in support of its motions for summary judgment, which included the statute-of-repose issue asserted by defendants. On February 22, 1989, third-party defendant Pfizer filed a motion for summary judgment, also asserting the statute-of-repose defense brought by defendants.

On February 17, 1989, plaintiff filed a motion to amend her complaint by adding an additional defendant, Pfizer, and by amending count VII of her complaint pertaining to Nunn.

On February 23, 1989, the court orally granted defendants’ summary judgment motions on the statute-of-repose defense.

On February 27, 1989, plaintiff filed a reply to De Kalb’s motion for summary judgment and Ainsworth’s motion for reconsideration. To this reply, plaintiff attached Pietrzak’s affidavit, Ainsworth’s depreciation schedule, the appraisal report of Trojan Seed of Illinois, excerpts from Robert’s deposition, Snyder’s affidavit, and excerpts from the deposition of Barry A. Miller.

On February 28, 1989, defendants filed a motion for a finding under Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)), praying that there was no just reason for delaying the enforcement or appeal of the counts under which the defendants obtained summary judgment.

On March 10, 1989, plaintiff filed an amended supplemental complaint against Nunn and Pfizer, and a motion to amend the supplemental complaint.

On July 13, 1989, Judge Klitz entered a written order granting the defendants’ motions for summary judgment and entering judgment in favor of defendants, Ainsworth, Clayton, Nunn, and Short, and against the plaintiff. The court granted the judgments based on defendants’ first affirmative defense and found that the plaintiff’s cause was barred by section 13—214(b) of the Code. The summary judgments were granted in favor of defendants and against the plaintiff on count V of plaintiff’s original complaint and on counts VI, VII, and VIII of plaintiff’s revised amended complaint. The court also granted plaintiff’s motion to file an amended supplemental complaint for count VII as to Nunn, but not as to Pfizer.

I. THE MOTION FOR SUMMARY JUDGMENT

On appeal, plaintiff contends that the trial court erred in granting defendants’ motions for summary judgment. Plaintiff argues that there were genuine issues as to material facts because defendants contradicted themselves. Defendants respond that the granting of their motions for summary judgment was proper because there were no issues of material fact.

A motion for summary judgment is properly granted if the pleadings, depositions, and admissions on file, together with any affidavits or exhibits, demonstrate that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Montgomery Ward & Co. v. Wetzel (1981), 98 Ill. App. 3d 243, 247, 423 N.E.2d 1170, 1174.) Even though a complaint and answer may purport to raise issues of material fact, if such issues are not further supported by evidentiary facts through affidavits or other appropriate supporting documents, summary judgment should be granted. Lawrence v. Rubio (1980), 85 Ill. App. 3d 472, 476, 406 N.E.2d 946, 951.

A. THE AFFIRMATIVE DEFENSE OF THE STATUTE OF REPOSE

Plaintiff’s first argument on appeal is that the trial court erred in considering the affirmative defense of the statute of repose (Ill. Rev. Stat. 1987, ch. 110, par. 13—214(b)) when defendants failed to raise it in their answers. This issue is important because it is potentially dis-positive of many of the other issues raised by plaintiff. If the affirmative defense of the statute of repose is required to be raised in defendants’ answers, amended answers, or motions under sections 2—615 or 2—619 of the Code (Ill. Rev. Stat. 1987, ch. 110, pars. 2—615, 2—619), as opposed to its being raised in a motion for summary judgment, the statute-of-repose defense should not have been considered at the summary judgment hearings.

Section 2 — 613(d) of the Code states:

“(d) The facts constituting any affirmative defense, such as payment, release, satisfaction, discharge, license, fraud, duress, estoppel, laches, statute of frauds, illegality, that the negligence of a complaining party contributed in whole or in part to the injury of which he complains, that an instrument or transaction is either void or voidable in point of law, or cannot be recovered upon by reason of any statute or by reason of nondelivery, want or failure of consideration in whole or in part, and any defense which by other affirmative matter seeks to avoid the legal effect of or defeat the cause of action set forth in the complaint, counterclaim, or third-party complaint, in whole or in part, and any ground or defense, whether affirmative or not, which, if not expressly stated in the pleading, would be likely to take the opposite party by surprise, must be plainly set forth in the answer or reply.” Ill. Rev. Stat. 1987, ch. 110, par. 2—613(d).

The statute of repose is one such affirmative defense. (Elliott v. Sears, Roebuck & Co. (1988), 173 Ill. App. 3d 383, 527 N.E.2d 574.) Section 2 — 613, however, is designed to prevent unfair surprise at trial and is not meant to be a restriction on motions for summary judgment. (Chaplin v. Geiser (1979), 79 Ill. App. 3d 435, 438, 398 N.E.2d 628, 631.) As noted in Chaplin, several cases have held that a trial court may consider an affirmative defense raised in a motion for summary judgment even if the defense was not raised in the answer. See Chaplin, 79 Ill. App. 3d at 438, 398 N.E.2d at 631.

Even though the original answers filed by defendants did not contain any affirmative defenses, on June 16, 1988, Nunn, Short, Ainsworth, and Clayton did file their first affirmative defense based on the statute of repose. The trial court was thus correct in considering this defense in its review of defendants’ motions for summary judgment.

B. SECTION 13-214 IS CONSTITUTIONAL

Plaintiff next argues that section 13—214 of the Code is unconstitutional as applied and on its face. Specifically, plaintiff contends that section 13—214 is unconstitutional special legislation and is violative of the due process and equal protection clauses of the United States Constitution (U.S. Const., amend. XIV).

We note, however, that the constitutionality of section 13—214 of the Code has already been determined. See People ex rel. Skinner v. Hellmuth, Obata & Kassabaum, Inc. (1986), 114 Ill. 2d 252, 500 N.E.2d 34 (section 13—214(a) not unconstitutional special legislation under the Illinois Constitution); Matayka v. Melia (1983), 119 Ill. App. 3d 221, 456 N.E.2d 353 (section 13—214 not violative of the Federal or State due process clause and not special legislation); Calumet Country Club v. Roberts Environmental Control Corp. (1985), 136 Ill. App. 3d 610, 483 N.E.2d 613 (section 13—214(a) not violative of the Federal equal protection clause and not special legislation); Blackwood v. Rusk (1986), 148 Ill. App. 3d 868, 500 N.E.2d 69 (section 13—214 not violative of the equal protection clause and not special legislation); Continental Insurance Co. v. Walsh Construction Co. (1988), 171 Ill. App. 3d 135, 524 N.E.2d 1131 (section 13—214 not violative of the equal protection clause); People ex rel. Skinner v. FGM, Inc. (1988), 166 Ill. App. 3d 802, 520 N.E.2d 1024 (section 13—214 not special legislation under the Illinois Constitution).

C. SECTION 13-214 IS APPLICABLE

1. SECTION 13—214(b) IS RETROACTIVE

Plaintiff argues that section 13—214(b) of the Code should not be applied retroactively to deprive her of a remedy. Defendants argue that four recent cases hold to the opposite effect and specifically reject plaintiff’s argument. A short summary of these cases follows.

In Blackwood, the court stated:

“Defendants further argue that section 13—214 cannot be construed to operate retroactively.
We disagree with defendants’ contention. As heretofore noted, the legislature, on September 16, 1981, reenacted the 1979 act (Ill. Rev. Stat., 1980 Supp., ch. 83, pars. 22.3(a), (b)), but without the language which provided, ‘The limitations of this Section shall apply to all acts or omissions which occur on or after the effective date of this amendatory act of 1979.’ The omission of this language broadened the applicability of the 1979 statute so that it would within its parameters apply to actions based on tort or contract and arising out of negligent design, planning, construction, etc., of buildings which occurred prior to November 29, 1979, as well as to those which occurred subsequent to this date. Champaign County Nursing Home v. Petry Roofing (1983), 117 Ill. App. 3d 76, 452 N.E.2d 847.” Blackwood, 148 Ill. App. 3d at 872-73, 500 N.E.2d at 72.

Other opinions have also addressed plaintiff’s argument and are helpful in disposing of it. In Champaign County Nursing Home v. Petry Roofing, Inc. (1983), 117 Ill. App. 3d 76, 78, 452 N.E.2d 847, 849-50, this court discussed the history of section 13—214 of the Code, specifically noting that the section was originally enacted in 1979 with a saving clause stating, “ ‘The limitations of this Section shall apply to all acts or omissions which occur on or after the effective date of this amendatory Act of 1979.’ (Ill. Rev. Stat., 1980 Supp., ch. 83, par. 22.3(e).)” (Champaign County Nursing Home, 117 Ill. App. 3d at 78, 452 N.E.2d at 849.) On July 13, 1982, section 13—214 was reenacted without the saving clause. This court quoted from the legislative debates and concluded that the legislative intent behind the deletion of the saving clause was that the statute be given retroactive effect and act as a bar to actions premised on defects in design and construction before 1979. See also People ex rel. Skinner v. Graham (1988), 170 Ill. App. 3d 417, 524 N.E.2d 642 (lack-of-retroactivity argument specifically dealing with section 13—214(a) rejected).

Even more recently, in Erdie v. Central Illinois Public Service Co. (1988), 175 Ill. App. 3d 1050, 1054-55, 530 N.E.2d 514, 518, this court rejected the lack-of-retroactivity argument dealing with both the products liability statute of repose of section 13—213 of the Code and the construction statute of repose of section 13—214, and stated as follows:

“Plaintiffs argue their interpretation of Costello should apply to section 13—214. We have already declined to apply their interpretation to section 13—213, and we similarly decline to apply it to section 13—214. Section 13—214, which became effective November 29, 1979, by Public Act 81—1169 (Ill. Rev. Stat. 1985, ch. 110, par. 13—214 (formerly Ill. Rev. Stat., 1980 Supp., ch. 83, par. 22.3); 1979 Ill. Laws 4479, 4480 (§1)), is to be given retroactive effect.” Erdie, 175 Ill. App. 3d at 1055, 530 N.E.2d at 518.

Based on the above cases, section 13—214(b) of the Code is to be applied retroactively.

2. THE CONVEYER IS AN IMPROVEMENT TO REAL PROPERTY

Plaintiff argues that the conveyer belt and assembly gearing in question are not improvements to real property, but instead they are “products,” which are not covered by the provisions of the statute of repose in section 13—214 of the Code. We disagree.

Section 13—214 of the Code states in pertinent part:

“(a) Actions based upon tort, contract or otherwise against any person for an act or omission of such person in the design, planning, supervision, observation or management of construction, or construction of an improvement to real property shall be commenced within 4 years from the time the person bringing an action, or his or her privity, knew or should reasonably have known of such act or omission. ***
(b) No action based upon tort, contract or otherwise may be brought against any person for an act or omission of such person in the design, planning, supervision, observation or management of construction, or construction of an improvement to real property after 10 years have elapsed from the time of such act or omission. ***
* * *
(e) The limitations of this Section shall not apply to causes of action arising out of fraudulent misrepresentations or to fraudulent concealment of causes of action.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 110, pars. 13—214(a), (b), (e).)

Thus, in order for section 13—214 to apply in the instant case, the installation, assembly, and construction of the conveyer-belt system must be the “construction of an improvement to real property.”

The case closest on point is from the Seventh Circuit Court of Appeals, Hilliard, v. Lummus Co. (7th Cir. 1987), 834 F.2d 1352, where the issue was whether, under Illinois law, a screw conveyor that moved cocoa through a plant was an “improvement to real property” for the application of section 13—214(b) of the Code (Ill. Rev. Stat. 1987, ch. 110, par. 13—214(b)). In Hilliard, the plaintiff argued in the trial court that Lummus had not improved real property, but had merely provided a product that was installed on real property. The district court disagreed and held that the screw conveyor substantially enhanced the value of the property and constituted an “improvement to real property.” (Hilliard, 834 F.2d at 1354.) The Seventh Circuit affirmed.

The Hilliard court first noted that whether work on a screw conveyor constituted an “improvement to real property” within the context of section 13 — 214(b) of the Code is an issue of law for the court. (Hilliard, 834 F.2d at 1354.) The court cited approvingly Calumet Country Club v. Roberts Environmental Control Corp. (1985), 136 Ill. App. 3d 610, 483 N.E.2d 613, which held that words are to be given their commonly accepted meaning, and that an improvement to real property is something which substantially enhances the value of the property and is more than a repair or replacement. (Hilliard, 834 F.2d at 1354.) The court also cited the following definition of improvement:

“ ‘A valuable addition made to property (usually real estate) or an amelioration in its condition, amounting to more than mere repairs or replacement, costing labor or capital, and intended to enhance its value, beauty or utility or to adapt it for new or further purposes.’ ” (Hilliard, 834 F.2d at 1354 n.3, quoting Black’s Law Dictionary 682 (5th ed. 1979).)

The Hilliard court rejected plaintiff’s argument that the case merely involved a piece of machinery installed in a building that could easily be removed without damage and stated the following:

“ ‘That the conveyor is more than a mere repair or replacement is beyond dispute. The uncontested deposition testimony establishes that the conveyor was installed in about 1950 along with the construction of the building and has remained there ever since. The conveyor was not a repair to or a replacement of anything that previously existed. Furthermore, we do not think that it can seriously be doubted that the conveyor substantially enhanced the value of the property. The plant is designed to produce processed cocoa, and the conveyor was built as an integral component of that process.’ ” (Hilliard, 834 F.2d at 1355.)

The court also rejected plaintiff’s argument that since the conveyor was not bolted or welded to the steel supports and is not a fixture, section 13 — 214 of the Code should not apply:

“We disagree. As we explained above, the words of a statute are to be given their common ordinary meaning unless the statute indicates otherwise. Nothing in §13 — 214 indicates that it intended the peculiar definitions of fixture law to apply to that section ***. If Hilliard’s argument is intended to raise an issue as to the conveyor’s permanence, we must disagree. Taken to its logical conclusion, Hilliard’s argument would mean that nothing could be considered an ‘improvement to real property’ if there were any possibility that the structure might be redesigned or rebuilt at any time, no matter how far into the future. We do not think this is a reasonable interpretation of the statutory language.” (Hilliard, 834 F.2d at 1355.)

The court also stated that the relevant inquiry should focus on the entire work or system completed by Lummus and not simply on a single component that may have been involved in the plaintiff’s injury.

In interpreting section 13—214 of the Code, the Hilliard court followed the generally accepted approach in other States with similar statutes of repose. See Cudahy Co. v. Ragnar Benson, Inc. (D. Colo. 1981), 514 F. Supp. 1212; Adair v. Koppers Co. (N.D. Ohio 1982), 541 F. Supp. 1120; Mullis v. Southern Co. Services, Inc. (1982), 250 Ga. 90, 296 S.E.2d 579; Anderson v. M.W. Kellogg Co. (Colo. 1988), 766 P.2d 637; McCormick v. Columbus Conveyer Co. (1989), _ Pa. _, 564 A.2d 907.

We hold that the belt conveyor and assembly gearing in question in the present case were an improvement to real property under section 13—214(b) of the Code as a matter of law. We note that the conveyor system in question was installed by Clayton, Short, and Nunn in 1969 and was not a repair or replacement of an existing conveyor system. Accordingly, this is not a case of mere repair or replacement. Also, the belt conveyor system that was installed at the sorting building in 1969 was a substantially new addition to that building and included corn buskers, a husking bed, a belt sorting conveyor, and a reject conveyor. Thus, the conveyor system and the overall work completed at the sorting building in 1969 was a substantial improvement to the real property. Finally, the sorting building was erected in 1969, the same year that the conveyor system was placed in the sorting building. The sole reason for the existence of the sorting building is to sort corn. The belt conveyor that allegedly caused the plaintiff’s injury was an integral and essential part of that corn-sorting system.

We find Hilliard persuasive, especially when read in conjunction with similar cases from other States, and we hold that the conveyor at issue is an improvement to real property within the meaning of section 13—214 of the Code.

D. NO GENUINE ISSUES OF MATERIAL FACT

Plaintiff argues that the trial court erred in granting defendants’ motion for summary judgment because genuine issues of material fact exist on the record. Specifically, plaintiff alleges that inconsistencies exist between affidavits and answers to requests to admit facts. However, careful review of the record before this court shows plaintiff’s argument to be without merit.

In support of his summary judgment motion, Nunn filed an affidavit stating that after 1972 he had nothing to do with the design, planning, supervision, observation, management of construction, or construction of the conveyor belt and assembly gearing which were affixed to the floor of the premises. His affidavit also said that after 1972 no other employee of Ainsworth had anything to do with said improvement to the premises, and that the premises in question were not owned, occupied, or controlled by Ainsworth. In an answer to a request to admit, Nunn stated, “I admit that when I was an employee of Pfizer in 1978, I helped remove almost everything from the sorting building.”

As to the above-described documents, we find no issue of material fact. First, the two documents are not contradictory. In Nunn’s answer, Nunn stated that he took out the entire conveyor from the building in 1978. He also stated that he was not involved in designing, planning, supervising or managing construction after 1972. In his affidavit, Nunn stated that he did not design, plan, supervise, observe, manage construction, or construct the conveyer belt or assembly gearing. In addition, the affidavit concerns Nunn’s employment by Ainsworth only through 1972. Second, the answer to the request to admit was never presented by the plaintiff to the court during the hearings on the summary judgment motions. In addition, no counter-affidavits were filed by plaintiff to contradict Nunn’s affidavit. Accordingly; because Nunn’s original affidavit was never contradicted, the facts contained in that affidavit must be accepted as true at the hearing on the motion for summary judgment. In order to create an issue of fact, plaintiff must file counteraffidavits. Smith v. South Shore Hospital (1989), 187 Ill. App. 3d 847, 543 N.E.2d 868.

II. LEAVE TO AMEND PLAINTIFF’S COMPLAINT

Plaintiff also argues on appeal that the trial court erred in denying her motion for leave to file an amended complaint as untimely. Third-party defendant Pfizer argues that the trial court acted appropriately in denying plaintiff’s motion because it was untimely. Pfizer points out that plaintiff’s motion was filed after the trial court orally granted summary judgment and after the applicable statute of limitations had run. Pfizer also argues that plaintiff had earlier opportunities to file her amended complaint.

Section 2—616(a) of the Code provides that amendments may be allowed on just and reasonable terms at any time prior to final judgment. (Ill. Rev. Stat. 1987, ch. 110, par. 2—616(a).) Although the policy adopted by the Illinois courts is one of liberality in allowing amendments, parties do not have an absolute or unlimited right to amend. (Montgomery Ward & Co. (1981), 98 Ill. App. 3d 243, 250, 423 N.E.2d 1170, 1177.) Permission to file an amended complaint rests within the sound discretion of the trial court, and its decision will not be disturbed on review absent an abuse of that discretion. (Montgomery, 98 Ill. App. 3d at 250, 423 N.E.2d at 1177.) A trial court’s power to allow amendments should be freely exercised in order that litigants may fully present their causes of action. (Ryan v. Mobil Oil Corp. (1987), 157 Ill. App. 3d 1069, 1074, 510 N.E.2d 1162, 1165.) The greatest liberality should be applied in allowing amendments, and the most important question is whether the amendment will be in the furtherance of justice. (Ryan, 157 Ill. App. 3d at 1074, 510 N.E.2d at 1165.) In Lawson v. Hill (1979), 77 Ill. App. 3d 835, 396 N.E.2d 617, the court discussed these principles as follows:

“[Wjhile recognizing that an amendment should not ordinarily be permitted to set up matters of which the pleader had full knowledge at the time of interposing the original pleading and no excuse is presented for not putting its substance in the original pleading, such an amendment will be allowed where justice is not served by denying leave to amend; doubts should be resolved in favor of allowing amendments. ‘The liberal policy of permitting amendments to pleadings is in accord with the salutory principle that controversies ought to be settled on their merits in accord with the substantive rights of the parties.’ ” Lawson, 77 Ill. App. 3d at 845, 396 N.E.2d at 625, quoting Stevenson v. Maston (1969), 107 Ill. App. 2d 65, 70, 246 N.E.2d 38, 40.

Section 2 — 616 of the Code states in pertinent part:

“(c) A pleading may be amended at any time, before or after judgment, to conform the pleadings to the proofs, upon terms as to costs and continuance that may be just.
(d) A cause of action against a person not originally named a defendant is not barred by lapse of time under any statute or contract prescribing or limiting the time within which an action may be brought or right asserted, if all the following terms and conditions are met: (1) the time prescribed or limited had not expired when the original action was commenced; (2) failure to join the person as a defendant was inadvertent; (3) service of summons was in fact had upon the person, his or her agent or partner, as the nature of the defendant made appropriate, even though he or she was served in the wrong capacity of as agent of another, or upon a trustee who has title to but no real power of management or control over property constituting a trust of which the person is a beneficiary; (4) the person, within the time that the action might have been brought or the right asserted against him or her, knew that the original action was pending and that it grew out of a transaction or occurrence involving or concerning him or her; and (5) it appears from the original and amended pleadings that the cause of action asserted in the amended pleading grew out of the same transaction or occurrence set up in the original pleading, even though the original pleading was defective in that it failed to allege the performance of some act or the existence of some fact or some other matter which is a necessary condition precedent to the right of recovery when the condition precedent has in fact been performed, and even though the person was not named originally as a defendant. For the purpose of preserving the cause of action under those conditions, an amendment adding the person as a defendant relates back to the date of the filing of the original pleading so amended.” Ill. Rev. Stat. 1987, ch. 110, pars. 2—616(c), (d).

With regard .to Pfizer’s argument that the motion for leave to amend the complaint was untimely, section 2—616(c) of the Code provides some guidance. That section allows for amendments to be filed even after judgment in order to conform the pleadings to the proofs. In the present case, plaintiff was merely restructuring her complaint so that she could obtain relief. We note that in Siebert v. Continental Oil Co. (1987), 161 Ill. App. 3d 891, 515 N.E.2d 728, the appellate court reversed the trial court and held that the administratrix of an estate should have been permitted to amend her complaint after summary judgment. Citing the seminal case of Kupianen v. Graham (1982), 107 Ill. App. 3d 373, 437 N.E.2d 774, the court in Siebert delineated the relevant factors to be considered in deciding whether the trial court properly exercised its discretion in denying amendment of a complaint or counterclaim:

“ ‘[Wjhether the proposed amendment would cure the defective pleading [citation]; whether other parties would sustain prejudice or surprise by virtue of the proposed amendment [citations]; the timeliness of the proposed amendment [citation]; and whether previous opportunities to amend the pleadings could be identified. [Citation.]’ 107 Ill. App. 3d 373, 377, 437 N.E.2d 774.” Siebert, 161 Ill. App. 3d at 895, 515 N.E.2d at 731.

Plaintiff filed her original complaint within the time period for either a products liability or personal injury action. Plaintiff’s proposed amended complaint takes her out of the section 13 — 214 statute of limitations because she there alleged, as to Pfizer, that it was negligent in modifying the conveyor belt system. Section 2 — 616(d) of the Code provides for amendments to pleadings to avoid being barred by a statute of limitations if the amendment grew out of the same transaction or occurrence alleged in the original pleading, if the original pleading was filed within the applicable statute of limitations period, and if the defendant to the amendment, within the time period for bringing the action, knew that (1) the original action was pending, and (2) “it grew out of a transaction or occurrence involving or concerning” that defendant. Ill. Rev. Stat. 1987, ch. 110, par. 2—616(d).

The record demonstrates that plaintiff’s proposed amended complaint merely incorporated an already named party, Pfizer, into plaintiff’s complaint. Pfizer had become a third-party defendant on June 13, 1988, some 2 years and 8V2 months after the alleged date of plaintiff’s injury. If, as Pfizer contends, the appropriate statutory limitation as to plaintiff’s alleged claim is a two-year statute of limitations, plaintiff’s action against Pfizer would be barred if Pfizer did not have the required knowledge of plaintiff’s claim by September 17, 1987, the second anniversary of plaintiff’s injury. Clearly, Pfizer had that knowledge by June 13, 1988, and, because Pfizer was De Kalb’s partner, most likely it had the required knowledge long before that second anniversary. In any event, the circuit court could not properly conclude from the record that a statute of limitations had run on plaintiff’s claim against Pfizer.

Finally, the fact that plaintiff failed to give an excuse for the lateness of her request for leave to amend is no reason to deny her request for leave to amend her complaint in this case. Allowing the amendment would not have caused any undue prejudice to or hardship for Pfizer and it might allow plaintiff to obtain some relief. While it is true that plaintiff could have amended her complaint earlier, our recitation of the complicated pleadings in this case demonstrates no dilatory behavior by plaintiff as she proceeded through the pretrial stages of this litigation. On these facts, we conclude that the trial court abused its discretion when it denied plaintiff’s leave to amend her complaint. This cause must be remanded for purposes of allowing the filing of the amended complaint against Pfizer.

Affirmed in part; reversed in part and remanded.

LUND and GREEN, JJ., concur.


author: JUSTICE LUND

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PAUL E. GREEN, Defendant-Appellant.
    Fourth District
    No. 4—89—0519
    Opinion filed July 12, 1990.

      Daniel D. Yuhas and Jonathan Haile, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Lawrence R. Fichter, State’s Attorney, of Decatur (Kenneth R. Boyle, Robert J. Biderman, and Kevin T. McClain, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE LUND

delivered the opinion of the court:

On May 16, 1989, following a jury trial in the circuit court of Macon County, defendant Paul Green was found guilty of the offenses of armed violence and possession of a controlled substance with intent to deliver. (Ill. Rev. Stat. 1987, ch. 38, par. 33A—2; ch. 56½, par. 1401(b)(2).) He subsequently received concurrent jail sentences of 12 years on the armed-violence conviction and 6 years on the controlled-substance conviction. These sentences were to run consecutively to a 10-year prison sentence imposed for another armed-violence conviction.

On February 28, 1989, defendant was charged by information with committing the offenses of (1) armed violence, which was predicated on unlawful possession of a controlled substance (Ill. Rev. Stat. 1987, ch. 38, par. 33A—2); (2) unlawful possession of a controlled substance with intent to deliver (Ill. Rev. Stat. 1987, ch. 56½, par. 1401(b)(2)); (3) unlawful possession of a controlled substance (Ill. Rev. Stat. 1987, ch. 56½, par. 1402(b)); and (4) unlawful possession of weapons by a felon (Ill. Rev. Stat. 1987, ch. 38, par. 24—1.1(a)). This last charge was severed prior to trial.

At trial, the State presented the testimony of Decatur police officers Carl Carpenter, Mark Barthelemy, and Randall Chaney. They responded to a radio dispatch concerning shots being fired at the Longview area around 9 p.m. on February 27, 1989. As Barthelemy arrived at the scene, a small car pulled from the parking lot and accelerated at a high rate of speed. Barthelemy stopped the vehicle. Carpenter and Chaney then arrived.

Defendant was the driver of the car. When he exited the car, he wore a long outer coat and had his right hand in his right outside pocket. He was ordered to remove his hand and would not do so. Chaney approached and removed defendant’s hand. Carpenter reached into the pocket and found a loaded revolver and two small bags containing a substance later identified as cocaine. A subsequent search of the coat at the police station found nine small plastic bags containing a white, powdery substance in the left front pocket. Six of these bags were positively tested for cocaine and three were not tested. Defendant also had $225 in cash in his possession, basically in $20 denominations.

Both sides rested, and the jury, after 2ik hours of deliberation, found defendant guilty on all counts. At the sentencing hearing, the court vacated the unlawful possession of a controlled-substance conviction, finding it was an included offense of the armed-violence conviction. The court denied a similar request concerning the possession-of-a-controlled-substance-with-intent-to-deliver conviction. The court imposed concurrent prison sentences of 12 years for the armed-violence conviction and 6 years on the controlled-substance conviction, with these sentences to be served consecutively to another sentence for another armed-violence conviction.

Defendant now appeals, asserting the court erred in (1) failing to dismiss a juror for cause; and (2) failing to vacate the controlled-substance conviction.

I

One of the first prospective jurors questioned on voir dire was a secretary in the juvenile division of the State’s Attorney’s office. She knew the State’s Attorney and was an at-will employee of the office. She testified her employment would not affect her ability to serve as a fair and impartial juror. Defense counsel’s challenge for cause was denied, and he used one of his peremptory challenges in excusing her.

We are critical of this trial court ruling. If the issue had been adequately preserved, we would have reversed this conviction and remanded for a new trial.

People v. Cole (1973), 54 Ill. 2d 401, 298 N.E.2d 705, is the leading case in Illinois addressing considerations to be made in determining if a prospective juror should be dismissed for cause. However, our court, in Marcin v. Kipfer (1983), 117 Ill. App. 3d 1065, 454 N.E.2d 370, made the following statement:

“Our decision is consistent with the following statement of an experienced authority on Illinois trial procedure:
‘The trend of authority is to exclude from juries all persons who by reason of their business or social relations, past or present, with either of those parties, could be suspected of possible bias ***.’ Hunter, Trial Handbook for Illinois Lawyers sec. 15.14 (5th ed. 1983).” (Marcin, 117 Ill. App. 3d at 1068, 454 N.E.2d at 372.)

Marcin was a civil action based upon a malpractice claim, and it was held error to allow patients of the defendant doctor to sit as jurors. The argument for dismissal for cause in the present case is even stronger, and we find it difficult to understand why a supposedly impartial judge hesitated in granting the challenge.

The State argues that, even if she should have been excused for cause, defendant was not prejudiced and therefore no reversible error existed. In the Haymarket Square riot case, our supreme court stated:

“We can not reverse this judgment for errors committed in the lower court in overruling challenges for cause to jurors, even though defendants exhausted their peremptory challenges unless it is further shown that an objectionable juror was forced upon them and sat upon the case after they had exhausted their peremptory challenges.” (Spies v. People (1887), 122 Ill. 1, 258, 12 N.E. 865, 989.)

This holding was most recently applied in People v. Washington (1982), 104 Ill. App. 3d 386, 392, 432 N.E.2d 1020, 1025, where the court explained:

“In the present case, the defense exhausted its peremptory challenges, but it did not indicate to the trial court that it was being forced to accept an objectionable juror because of the error in overruling the prior challenge for cause. Notifying the trial court of this fact would have served the salutary purpose of giving the court a final opportunity to cure the alleged error by exercising its inherent power to grant the defense an extra peremptory challenge. Because the defense in the present case did not indicate that it was being forced to accept an objectionable juror as a result of the trial court’s error, we hold that the error in denying the challenge for cause was waived.”

This analysis seems similarly recognized in this district. In Marcin (117 Ill. App. 3d at 1067, 454 N.E.2d at 372), the court, in addressing the issue of denial of challenges for cause, stated in passing: “Plaintiff fully preserved his claim of error by exercising all his allotted peremptory challenges, asking for additional peremptories, and making a motion for a mistrial.”

In the case at bar, after examining the final panel, the following took place:

“[DEFENSE COUNSEL]: We have no peremptories.
THE COURT: Pardon?
[DEFENSE COUNSEL]: We are exercising no other peremptories.”

Defendant had, in fact, used all his peremptories. At no time did defendant ask for other peremptories or indicate that he would have excused a juror if he had any left. Regardless of authorities cited by the defendant, we hold defendant is precluded from asserting this error.

II

Defendant’s second contention is that his conviction for possession of a controlled substance with intent to deliver should be vacated. The trial court found that, since it is not an included offense of the armed-violence conviction, it need not be vacated. Defendant acknowledges that it is not an included offense. However, he points out the armed-violence conviction is predicated upon the possession of the controlled substance. Accordingly, he believes the two convictions arise out of the same act and, pursuant to People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838, the controlled-substance conviction should be vacated.

Multiple convictions and concurrent sentences should be permitted in cases where a defendant has committed several acts, despite the interrelationship of those acts. (King, 66 Ill. 2d at 566, 363 N.E.2d at 844; People v. Dixon (1982), 91 Ill. 2d 346, 355, 438 N.E.2d 180, 185.) The word “act” is intended to mean any overt or outward manifestation which will support a different offense. (King, 66 Ill. 2d at 566, 363 N.E.2d at 844-45.) When more than one offense arises from a series of incidental or closely related acts and the acts are not included offenses, convictions with concurrent sentences can be entered. (King, 66 Ill. 2d at 566, 363 N.E.2d at 845; Dixon, 91 Ill. 2d at 355, 438 N.E.2d at 185.) “Prejudice results to the defendant only in those instances where more than one offense is carved from the same physical act.” King, 66 Ill. 2d at 566, 363 N.E.2d at 844.

The armed-violence conviction is based on defendant’s possession of cocaine while armed with the loaded revolver. An included offense of the armed-violence charge would, in the present case, be unlawful possession. Because of the added element of intent to deliver, the unlawful-possession-of-a-controlled-substanee-with-intent-to-deliver offense would not be an included offense. Furthermore, in the present case, the armed-violence conviction could be based upon the contents of the right-hand pocket, while the possession with intent to deliver could be based upon the six tested bags of the nine bags subsequently found in the left-hand pocket. This conclusion finds support from Dixon, where the court found that separate blows administered during a beating were separate acts and would support separate convictions. See Dixon, 91 Ill. 2d at 356, 438 N.E.2d at 185.

Defendant cites several cases. One, People v. Manning (1978), 71 Ill. 2d 132, 374 N.E.2d 200, appears to be resolved more by a statutory analysis than by applying King. The others, due to their facts, are not relevant since they are distinguishable.

Affirmed.

GREEN and McCULLOUGH, JJ., concur.


author: JUSTICE STOUDER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL TAYLOR et al., Defendants (Jennifer Yeast, Defendant-Appellant).
    Fourth District
    No. 4—89—0498
    Opinion filed June 27, 1990.
    Rehearing denied August 15, 1990.

      James C. Craven, of James C. Craven, P.C., Gregory Collins, of Stratton, Dobbs, Nardulli & Lestikow, and Donald M. Craven, of Donald M. Craven, P.C., all of Springfield, for appellant.
    Thomas J. Difanis, State’s Attorney, of Urbana (Kenneth R. Boyle, Robert J. Biderman, and David E. Mannchen, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE STOUDER

delivered the opinion of the court:

This case arises from the murder of Raymond A. Boldin on June 16, 1988. A three-count indictment filed on July 7, 1988, charged the defendant, Jennifer Gay Yeast, along with Michael Taylor, John Brazelton and Vernon Brazle, with the murder of Boldin. On November 9, 1988, Brazelton pled guilty to the murder of Boldin. On November 14, 1988, Brazle had his murder charge dismissed in exchange for immunity. Following a jury trial in April 1989, the defendant was convicted of first degree murder (Ill. Rev. Stat. 1987, ch. 38, par. 9—1(a)(1)) on an accountability theory. The defendant’s post-trial motions were denied, and the trial court sentenced the defendant to a 30-year term of imprisonment. The defendant appeals her conviction and sentence.

The record reveals the following information. The defendant was an assistant manager at a Burger King restaurant in Rantoul, Illinois. She attended a Burger King Corporation training class in Downers Grove, Illinois, on April 18 through 22, 1988. During the course of this week-long class, the defendant met the victim. Boldin was the manager of a Burger King Restaurant in Oak Forest, Illinois. Boldin had recently separated from his wife and was residing with his parents in Orland Hills, Illinois. The defendant and Boldin became romantically involved and began a long-distance relationship, with the defendant frequently travelling to Orland Hills to visit Boldin and Boldin travel-ling to Champaign, Illinois, to visit the defendant.

During the months of April and May 1988, the defendant resided at 1214 Mimosa in Champaign. This was not the defendant’s residence, but the residence of Michael Taylor. According to the defendant, she and Taylor, with whom she had previously been romantically involved, were involved in a platonic relationship during this time. The defendant indicated that she had experienced difficulties with her roommate and that she moved in with Taylor until her roommate moved out. At trial, however, Brazelton indicated that during this time the defendant and Taylor had a “boyfriend-girlfriend” relationship.

The long-distance relationship with Boldin also continued. The defendant and Boldin had discussed the possibility of the defendant leaving the Champaign area and transferring to a Burger King restaurant in the Chicago area. The defendant had asked for such a transfer, requesting that it take place in August 1988. Additionally, the two had discussed living together once the defendant moved to the Chicago area.

It is not clear from the record how the plan that resulted in Boldin’s murder came about. John Brazelton testified that on June 13, 1988, Taylor told him that he was upset that the defendant was involved in another relationship. Taylor indicated that he would just as soon confront Boldin and beat him up rather than have to look at him. Brazelton testified that the next day, June 14, 1988, he and Taylor drove to a remote borrow pit north of Champaign and formulated a plan whereby the defendant would bring Boldin to the borrow pit and Taylor would rough him up and leave him to walk back to town. Apparently the goal of the plan was to scare Boldin from further contact with the defendant. Brazelton’s role was to watch the fight and intervene if Boldin started getting the better of Taylor.

Brazelton further testified that on the night of June 14, 1988, Taylor, Brazelton and the defendant went to the borrow pit in the defendant’s car. Taylor indicated to the defendant where he and Brazelton would be hiding and where she should stop the car so that he could ambush Boldin.

The night of June 15, 1988, the defendant was working at the Burger King restaurant. She contacted Boldin and indicated that she was being verbally harassed by two male employees. She requested that he drive down from Orland Hills and assist her with the two employees. Boldin agreed, indicating that he would arrive in the Champaign area at approximately 10:30 p.m. The defendant contacted Taylor at his residence to advise him that Boldin was on his way to the Champaign area.

Brazle drove Taylor and Brazelton to the borrow pit. The three unloaded a boat from the top of the car, a rope and some concrete blocks. Brazle was instructed to return to Taylor’s residence and wait there for the defendant. After her arrival, he was to wait one half hour and return to the borrow pit to pick up Taylor and Brazelton. Brazle then left the area.

Meanwhile, Boldin had arrived at the restaurant. He and the defendant finished some paperwork and then left the restaurant. Boldin, in his car, followed the defendant, in her car, to her apartment on White Street in Champaign. They parked their cars and took some of Boldin’s belongings into the apartment. The defendant and Boldin then left the apartment in the defendant’s car. The defendant drove the car to the borrow pit.

Upon arriving at the borrow pit, the defendant stopped her car at the prearranged spot where Taylor and Brazelton were waiting. Boldin exited the car and, appearing to be angry, started walking toward the main road. The defendant looked at Taylor and shrugged her shoulders as if to indicate “What do I do now?” Taylor responded: “Bring him back here.”

The defendant went to Boldin and talked with him for a few minutes. Meanwhile, Taylor crawled on his hands and knees to the passenger side of the defendant’s car, locked the door, quietly shut it and crawled back to where he had been hiding.

The defendant and Boldin walked back to the car. The defendant got into the driver’s side while Boldin approached the passenger side. As Boldin attempted to open the passenger door, Taylor jumped up from behind Boldin and struck Boldin in the back of the head with his fist a couple of times. The two men struggled, and Taylor threw Boldin to the ground. Boldin started to get up, and Taylor picked up a weightlifting bar out of the weeds and struck Boldin in the head. Taylor continued to strike Boldin in the head with the bar. During the course of the attack, the defendant drove away, returning to the house at 1214 Mimosa.

Upon arriving at 1214 Mimosa, Brazle and Donald Frye testified that the defendant was upset and crying. She went directly to Taylor’s bedroom and, upon questioning by Brazle and Frye, indicated that she had seen Boldin hit once and that it happened like it was supposed to happen.

After Taylor stopped striking Boldin with the bar, either he or Brazelton cut Boldin’s throat. The two carried the body to a pond. While Taylor stripped the body of clothes, Brazelton retrieved the concrete blocks from the drop off point, and the two men attached the blocks to the body using rope. The two men loaded the body into the boat, but the boat overturned in relatively shallow water and the body sank to the bottom. The two men returned to the shore, hid the boat, cleaned up the murder scene and threw the weight-lifting bar into the pond. Shortly thereafter, Brazle returned and picked them up. Brazle, Brazelton, and Taylor returned to 1214 Mimosa.

The defendant, Brazelton, Taylor and Frye then proceeded to the defendant’s apartment on White Street in Champaign. The four retrieved some of the victim’s personal articles from the apartment. The group then divided, with Taylor and Brazelton getting into the victim’s car and Frye and the defendant getting into the defendant’s car. The two ears travelled together to a rural area where Taylor and Brazelton disposed of the victim’s car in a ravine. The four additionally disposed of the victim’s personal effects and then returned to the 1214 Mimosa residence.

Boldin’s car was discovered by the police on June 16, 1988. Boldin’s body was discovered on June 20, 1988. An autopsy performed on the body confirmed the identity of the body, with the pathologist opining that death had occurred as a result of severe head injury due to multiple skull fractures resulting from a narrow, blunt-edge trauma. The pathologist further testified that death probably occurred late on June 15 or on June 16,1988.

During the course of the investigation into Boldin’s murder, the defendant made three statements to the police. The first was made on June 21, 1988. In that statement the defendant indicated that after Boldin arrived in Champaign on June 15, 1988, the two got into an argument because the defendant wanted to cool off the relationship. Boldin left and, because she was upset, the defendant went to Taylor's residence. While there, Brazelton and Taylor left, and when they came back they told her that she wouldn’t be bothered by Boldin anymore.

The second statement was made on June 22, 1988, six to eight hours after the first statement. At that time the defendant indicated that she and Boldin were having a fight at her apartment because she wasn’t sure that she wanted to live with him. Taylor’s name came up during the fight and Boldin, upset, left the apartment. The defendant went to Taylor’s house, and shortly thereafter Boldin arrived. She said that Brazelton hit Boldin with something in his hands because Boldin was going to hit Taylor. She saw Boldin fall and went back into the house.

The defendant’s third statement was made on June 28, 1988, after she had been arrested for Boldin’s murder. The defendant explained that her statement on June 22, 1988, was made out of fear of reprisal by Brazelton and Taylor. However, since both men had been arrested, she had nothing to fear and wanted to correct her story.

In her third statement the defendant indicated that she drove Boldin out to the borrow pit, where the two sat in her car and argued. During the course of the argument, Boldin exited the car and started walking up the hill. She got out of the car and caught up with him. The two talked for several minutes and then returned to the car. When they arrived at the car, she got in while Boldin waited outside, waiting for her to unlock the passenger door. At that moment Brazelton and Taylor jumped out and struck Boldin in the head. Boldin screamed and she screamed. She then realized that her car keys were not in the car. Taylor came around and handed her the keys, instructing her to drive back to his residence on Mimosa. Boldin was hit again and screamed in pain. She screamed and drove away crying. The remainder of her statement concerning the disposal of Boldin’s car corresponds to participants Brazelton’s and Frye’s versions.

When specifically asked during the third statement about whether there was a plan conceived by Taylor, Brazelton and her, the defendant replied: “They told me to bring Ray to the pond. Other than that, I didn’t know what they had planned. I, the only plan that I thought of was that they were going to scare him, fight with him, but I did not know, I did not believe that they would kill him.” Next, she was asked whether it was safe to say that she thought they were going to beat him up and teach him a lesson. The defendant replied: “I don’t know if they had planned to beat him up, if they wanted to talk to him, wanted to get him away from people, I’m not knowledgeable.”

At trial the defendant testified that Taylor had asked her on June 15, 1988, whether Boldin would be coming to Champaign that day. Taylor asked her to bring Boldin to the borrow pit. She indicated that maybe she would bring Boldin to the borrow pit, that they would have to wait and see. She testified that she did not know for a fact that Taylor would be at the borrow pit and that Taylor never said anything about Brazelton being there. Her intentions, when walking back to the car that night with Boldin, were to get in the car with him and drive back to her apartment. She testified that she didn’t know Boldin was dead until June 21, 1988, and that neither Taylor nor Brazelton actually told her what happened after she left the pit that night.

As previously indicated, the defendant was found guilty of first degree murder and now appeals, raising several issues for our consideration.

The defendant’s first issue contends that the accountability instruction was improper because it misstated the law and allowed the jury to convict her without reaching a unanimous verdict.

Section 5—2(c) of the Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, par. 5—2(c)) defines accountability. It provides:

“A person is legally accountable for the conduct of another when:
* * *
(c) Either before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense.” Ill. Rev. Stat. 1987, ch. 38, par. 5-2(c).

People’s instruction No. 10 was given over the objection of the defendant. This instruction, a modified version of Illinois Pattern Jury Instructions, Criminal, No. 5.03 (2d ed. Supp. 1987) states:

“A person is responsible for the conduct of another when, either before or during the commission of an offense, with the intent to promote or facilitate the commission of an offense, he knowingly solicits, aides, abets, agrees or attempts to aid the other person in the planning or commission of an offense.”

During the prosecutor’s closing argument, she read this instruction to the jury and then argued:

“Now let me read that again in the context of this case. A person, Jennifer Yeast, the defendant, is responsible for the conduct of another, Michael Taylor, John Brazelton, when either before or during the commission of an offense, which is murder in our case, and with the intent to promote or facilitate the commission of an offense — and an offense does not have to be the same offense as murder—
DEFENSE COUNSEL: Objection to that, your Honor, it’s not the instruction.
THE COURT: You may argue.
Thank you your Honor. It does not have to be the same offense. It could be a battery, it could be a disorderly conduct, intimidation, it could be an assault, it could be any offense, so with the intent to promote or facilitate an offense, he knowingly solicits, aids, abets, agrees or attempts to aid the other person in the planning or commission of an offense. And that offense could be a battery, a disorderly conduct, an assault, an intimidation, any of those. So in the particular facts of this case, we need to ask, did she knowingly solicit, aid, abet, agree or attempt to aid Mike Taylor and John Brazelton in the commission of an offense?”

The defendant contends that the instruction, coupled with the prosecutor’s closing argument, misstated the law and invited the jury to convict the defendant of murder without unanimous agreement on what offense she had the intent to promote or facilitate.

The instruction given in this case is substantially similar to the instruction given in People v. Terry (1984), 99 Ill. 2d 508, 460 N.E.2d 746. In Terry our supreme court held that such an instruction accurately states the law on accountability. The law on accountability incorporates the “common design rule,” which provides that where two or more persons engage in a common criminal design, any acts in furtherance thereof committed by one party are considered to be the acts of all parties to the common design and all are accountable for those acts. People v. Fyke (1989), 190 Ill. App. 3d 713, 720, 546 N.E.2d 1101, citing People v. Terry (1984), 99 Ill. 2d 508, 514, 460 N.E.2d 746, 749.

In People v. Miscichowski (1986), 143 Ill. App. 3d 646, 655, 493 N.E.2d 135, the appellate court stated:

“In Terry, the court held that under section 5—2(c), which incorporated the long established ‘common-design rule’ [citation], the State need only prove that the defendant had the specific intent to promote or facilitate a crime, and not the actual crime for which he was charged. Once the State proved that the defendant intended to promote or facilitate a crime, he was responsible for any criminal act done in furtherance of the intended crime. Thus, where the defendant intended to promote or facilitate only a battery, he was legally responsible for the act of his codefendant in stabbing and killing the victim. The defendant did not have to intend that the victim be killed.” (Emphasis in original.)

See also People v. Terry (1984), 99 Ill. 2d 508, 512, 460 N.E.2d 746.

The defendant contends that the State failed to establish a specific crime which was the “common design” of the group. We note, however, that the defendant objected to the instruction offered by the State defining battery. Had the battery instruction been given and the jury returned a guilty verdict as to that offense, there would have been no issue as to whether the defendant could be found guilty of murder on an accountability theory. The defendant, having objected to the State’s proffered battery instruction, cannot now claim that the State failed to establish a specific crime which was the common design of the group.

We agree with the State that the jury instruction properly states the law on accountability. Furthermore, we find that ample evidence supports the jury’s verdict. It is apparent that the jury believed that the defendant was involved in the plan that led to the victim’s murder. Although it is not clear whether the defendant intended for Taylor and Brazelton to kill Boldin, it is clear that she played an integral part in the plan by delivering him to the perpetrators knowing that some harm would come to him. This, we believe, is all that is necessary for making her legally responsible for the acts of Taylor and Brazelton.

The defendant also contends that the trial court committed reversible error by allowing the prosecutor to read the accountability instruction to the jury. A review of the record reveals that the defense counsel also read the accountability instruction to the jury and made his argument.

It is permissible for a prosecutor to frame his argument around anticipated instructions. (People v. Grayson (1980), 89 Ill.. App. 3d 766, 773, 411 N.E.2d 1316.) The judge did instruct the jury as to the law, and since both the prosecutor and defense counsel had an opportunity to read the instructions and make their arguments, we do not believe that this constituted reversible error.

The defendant next contends that the murder instruction requires reversal because it created an impermissible presumption regarding the defendant’s mental state and shifted the burden of proof on that element of the crime from the prosecution. We disagree.

People’s instruction No. 13 states:

“To sustain the charge of first degree murder, the State must prove the following propositions:
First: That the defendant or one whose conduct she is legally responsible [for] performed the acts which caused the death of Raymond A. Boldin; and
Second: That when the one for whose conduct the defendant is legally responsible did so,
1) he intended to kill or do great bodily harm to Raymond A. Boldin;
or
2) he knew that his acts would cause death or great bodily harm to Raymond A. Boldin;
or
3) he knew that his acts created a strong probability of death or great bodily harm to Raymond A. Boldin;
If you find from your consideration of all the evidence that each one of these propositions has been proved beyond a reasonable doubt, you should find the defendant guilty.
If you find from your consideration of all the evidence that any one of these propositions has not been proved beyond a reasonable doubt, you should find the defendant not guilty.”

The defendant maintains that by deleting any reference to the female defendant from the second section of the instruction, the State created an impermissible presumption that the state of mind of the defendant was the same as that of her codefendants.

We are of the opinion that the instruction accurately states the law on accountability; that is, the defendant can be found guilty of murder when she is legally responsible for the conduct of another even if she did not have the intent to kill. We find no impermissible presumption and believe that the instruction was proper.

The defendant next argues that she was deprived of a fair trial by the prosecutor’s use of a felony murder analogy during the closing argument. We disagree.

The record reveals that during closing argument the defense counsel used two hypothetical situations concerning accountability situations. The prosecutor then presented a third situation — where a crime other than the one originally contemplated is committed and a homicide results. The defendant cannot complain of error which was invited or provoked by her attorney’s conduct. See People v. Myers (1966), 35 Ill. 2d 311, 220 N.E.2d 297; People v. Hicks (1981), 101 Ill. App. 3d 238, 427 N.E.2d 1328; People v. Webster (1988), 175 Ill. App. 3d 119, 529 N.E.2d 741.

The defendant next argues that the court erroneously admitted the statements of the defendant’s coconspirators. We disagree.

Under the coconspirator’s exception to the hearsay rule, acts and declarations of coconspirators made in furtherance of a conspiracy are admissible against the defendant even when made out of the defendant’s presence, so long as a prima facie case of conspiracy has been shown by independent evidence. (People v. Goodman (1980), 81 Ill. 2d 278, 283, 408 N.E.2d 215.) The existence of an agreement or conspiracy may be inferred from both direct and circumstantial evidence, including acts and statements of the defendant. People v. White (1984), 122 Ill. App. 3d 24, 38, 460 N.E.2d 802.

After a careful review of the record, we are of the opinion that there existed overwhelming independent evidence to support the existence of a conspiracy. The discussions between Taylor, Brazelton and Brazle were therefore properly admitted under this exception.

The defendant lastly contends that the trial court erred in the sentencing hearing by refusing to consider all relevant factors in mitigation of the sentence.

A trial judge’s decision on sentencing is entitled to great weight and deference and should not be disturbed on review absent a showing of abuse of discretion. (People v. La Pointe (1981), 88 Ill. 2d 482, 493, 431 N.E.2d 344.) We find no merit in the defendant’s contention as to this issue. Accordingly, we affirm the trial court on the imposed sentence of 30 years’ imprisonment.

For the reasons listed above, the decision of the circuit court of Champaign County is affirmed.

Affirmed.

BARRY and SCOTT, JJ., concur.

      The instruction in Terry read:
      “A person is responsible for the conduct of another when, either before or during the commission of a crime, and with the intent to promote or facilitate the commission of a crime, he knowingly solicits, aids, abets, agrees or attempts to aid the other person in the planning or commission of a crime.” Terry, 99 Ill. 2d at 512.