text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ARTHUR NEWELL, Defendant-Appellant.
    Third District
    No. 3—88—0649
    Opinion filed January 26, 1990.
    Rehearing denied May 14, 1990.

      Catherine Fitzsimmons, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Edward F. Masters, State’s Attorney, of Joliet (Rita Kennedy Mertel, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE STOUDER

delivered the opinion of the court:

Following a jury trial, defendant Arthur Newell was convicted of felony murder (Ill. Rev. Stat. 1987, ch. 38, par. 9—1(a)(3)) and sentenced to a 60-year, nonextended term of imprisonment. The jury found defendant guilty but mentally ill. (Ill. Rev. Stat. 1987, ch. 38, par. 6—2(c).) The defendant appeals.

The record indicates that during the evening of January 11, 1988, the defendant, along with Joe Robinson, Duane Page, Brian Page, Benjamin Burnett, and a boy named “Pookey” chartered a limousine from the victim, Robert DeYoung. DeYoung chartered and drove a black stretch limousine. At trial, Joe Robinson testified that after cruising the streets of Joliet in the limousine, Duane Page directed DeYoung to a park, where Burnett held a gun to DeYoung’s head. Robinson stated that he began leaving at that point and noticed defendant looting the front part of the limousine. A short time later, Duane Page, Brian Page, Burnett, and the defendant arrived at Robinson’s house. The defendant had a flashlight and a car phone. Robinson testified that he heard Burnett say, “Duane, why did you have to shoot the man twice in the head?” Duane answered, “So what. I did it.” DeYoung was later found dead in the park with two gunshot wounds to the head. The record shows that after his arrest, Duane Page admitted shooting DeYoung.

Three psychiatrists testified concerning the defendant’s mental state at the time of the offense. Dr. Barr and Dr. Egle testified for the defense. They testified the defendant was mildly retarded and in their opinion did not understand the proceedings against him. The State’s psychiatrist explained that although the defendant was mildly retarded, he fully understood the consequences of his actions. At the close of all of the evidence, the trial judge instructed the jury on, inter alia, the elements of guilty but mentally ill.

We first address whether the defendant proved his insanity by a preponderance of the evidence. Three psychiatrists testified at trial about the defendant’s mental state at the time of the offense. Dr. Egle and Dr. Barr testified for the defense and Dr. Kruglik testified for the State. Defendant asserts the testimony of his two expert witnesses established his insanity and that their testimony was more credible than the State’s expert witness. Dr. Egle observed that the defendant was moderately retarded, and as a result, the defendant did not possess the capability to conform his conduct to the law. Dr. Barr testified that the defendant did not know that a certain act was wrong unless told by someone. However, the State’s expert, Dr. Kruglik, commented that although the defendant was mildly retarded, he was able to appreciate the criminality of his conduct.

When a defendant asserts the affirmative defense of insanity, he has the burden of establishing by a preponderance of the evidence that he was insane. (Ill. Rev. Stat. 1987, ch. 38, pars. 3—2(b), 6—2(e).) The resolution of this fact question is to be made by the fact finder. (People v. Bouchard (1989), 180 Ill. App. 3d 26, 535 N.E.2d 1001.) A trier of fact’s finding a defendant legally sane at the time of the offense will not be disturbed on appeal unless it is against the manifest weight of the evidence. (People v. Bouchard (1989), 180 Ill. App. 3d 26, 535 N.E.2d 1001.) Upon review of the record, we do not believe the trier of fact’s finding was against the manifest weight of the evidence.

In deciding questions of sanity, the trier of fact may accept one expert’s opinion over another. (People v. Schwartz (1985), 135 Ill. App. 3d 629, 482 N.E.2d 104.) Here, the trier of fact was presented with a conflict of the evidence as to whether defendant was sane. The jury resolved this conflict in favor of finding defendant sane at the time of the offense. This decision is amply supported by the testimony of the State’s expert witness.

We next address the issue of whether the trial court abused its discretion in finding the defendant fit to stand trial. A criminal defendant has a constitutional right not to be tried or convicted while he or she is incompetent to stand trial. (People v. Turner (1980), 88 Ill. App. 3d 793, 410 N.E.2d 1151.) The defendant is unfit if, because of a mental or physical condition, he or she is unable to understand the nature and purpose of the proceedings or to assist in his or her defense. (People v. Murphy (1978), 72 Ill. 2d 421, 381 N.E.2d 677.) In making this determination, the court should consider whether the defendant has sufficient present ability to consult with defense counsel with a reasonable degree of rational understanding and whether the defendant has both a rational and factual understanding of the proceedings. People v. Turner (1980), 88 Ill. App. 3d 793, 410 N.E.2d 1151.

The law presumes that the defendant is fit to stand trial. (People v. Barnard (1981), 95 Ill. App. 3d 1132, 420 N.E.2d 1076.) However, where a bona fide doubt of the defendant’s fitness has been raised, the State has the burden of proving, by a preponderance of the evidence, that the defendant is fit. (People v. Turner (1980), 88 Ill. App. 3d 793, 410 N.E.2d 1151.) Both the initial determination as to whether a bona fide doubt as to the defendant’s fitness exists and a finding of fitness after a hearing are matters for decision by the trial court, reversible only upon a showing of abuse of discretion. People v. Dominique (1980), 86 Ill. App. 3d 794, 408 N.E.2d 280.

Here, the trial court ordered a fitness hearing. Doctors Egle, Barr, and Kruglik examined the defendant. Dr. Egle testified that based upon his observations, the defendant could not understand the proceedings against him. Dr. Barr testified that the defendant was incapable of understanding cause and effect relationships and the consequences of his actions. Dr. Kruglik, however, explained the defendant understood that Dr. Kruglik was a psychiatrist conducting a fitness examination and that the defendant understood the function of the court and the proceedings. The defendant told Dr. Kruglik that he didn’t know anyone carried a gun on the day of the murder and that he was “shocked” when the shooting occurred. The trial judge determined the defendant was fit to stand trial.

The record indicates the trial court recognized that it was required to determine the facts and make the ultimate decision as to the defendant’s fitness. The court determined that based upon the evidence presented, the defendant was fit to stand trial. Under these circumstances, we find no abuse of discretion.

Defendant next maintains that the trial judge committed reversible error by refusing to ask the jurors about their attitudes toward mental retardation during voir dire. In the instant case, defendant submitted questions pertaining to the prospective jurors’ views of mental retardation. The defendant contends that the questions submitted were designed to discover any potential bias or prejudice regarding that condition. The trial judge did not ask the submitted questions. The trial judge concluded that asking the questions would delve too far into the personal lives of the prospective jurors. The trial judge also noted that if he allowed an open-ended question to be asked he risked possibly prejudicing the other prospective jurors.

The State asserts the defendant waived any alleged error. Specifically, the State contends the defendant did not object in his post-trial motion to the questions relating to mental retardation. Rather, the defendant’s objection in his post-trial motion relates to questions submitted and not asked regarding “the insanity defense.” The State argues that defense counsel’s failure to object to the specific questions regarding mental retardation waived the issue.

It is well settled that a defendant must object to alleged errors at trial and include such errors in his post-trial motion or the errors are deemed waived. (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.) The State’s argument, however, elevates form over substance. In his post-trial motion, the defendant objected to the trial court’s refusal to ask the questions in voir dire tendered by the defendant. The questions the trial court refused to ask the prospective jurors pertained to the prospective jurors’ views of mental retardation. We believe, therefore, the defendant properly preserved the issue for appeal.

It is well established that limiting the scope of voir dire questioning may constitute reversible error where its effect is to deny a party a fair opportunity to probe an important area of potential bias or prejudice among prospective jurors. (Gasiorowski v. Homer (1977), 47 Ill. App. 3d 989, 365 N.E.2d 43.) The purpose of the voir dire examination is to permit counsel to ascertain whether the minds of prospective jurors are free from bias and prejudice. (People v. Witted (1979), 79 Ill. App. 3d 156, 398 N.E.2d 68.) Voir dire examination is to be initiated by the trial judge and may be supplemented by the parties at the court’s discretion. (People v. Pitts (1982), 104 Ill. App. 3d 451, 432 N.E.2d 1062.) However, the scope and extent of voir dire is left to the sound discretion of the trial judge. People v. Morgan (1986), 112 Ill. 2d 111, 492 N.E.2d 1303.

Defendant cites People v. Pitts (1982), 104 Ill. App. 3d 451, 432 N.E.2d 1062, for the proposition that a trial judge's failure to make pertinent inquiries during voir dire amounts to reversible error. In Pitts the trial judge refused to ask the jurors whether they had any viewpoint on the defense of insanity in a criminal case. In contrast, the trial judge in the instant case specifically asked the jurors whether they had any feelings for or against the use of the insanity defense in a criminal case. We note that the precise issue the jurors would eventually encounter in the instant case was whether the insanity defense applied, and defense counsel’s submitted question whether any of the prospective jurors’ relatives suffered from mental retardation was tangential to the insanity issue. Therefore, the question asked by the judge at voir dire was appropriately directed at an area of potential bias against the defendant. Accordingly, we believe the trial judge did not abuse his discretion in failing to ask the questions submitted by defense counsel to the prospective jurors during voir dire.

We next address the issue of whether it was reversible error for the trial judge to allow testimony concerning the defendant’s prior juvenile history to be introduced. Prior to Dr. Barr’s testimony, defense counsel moved in limine to preclude the prosecution from eliciting the fact that Dr. Barr’s examination of defendant was made in conjunction with an unrelated juvenile case. Defendant contends that the court erred in denying the motion since the probative value of the evidence was far outweighed by its prejudicial effect.

The State contends the defendant waived this issue by not properly objecting both at trial and in a written post-trial motion. (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.) The State contends that the defendant did not object to the questions on cross-examination and therefore waived the issue on appeal. The defendant contends that there was a pretrial order forbidding the introduction of evidence regarding the defendant’s juvenile past and that the line of questioning violated such order. The defendant also asserts that the issue was properly preserved for appeal. The Enoch rule, however, requires an objection at trial and in a written post-trial motion. The defendant did not object to the question on cross-examination as required by Enoch. We believe, therefore, defendant waived this issue on appeal.

Moreover, when the defense of insanity is raised, almost every aspect in a defendant’s life is relevant. (People v. Vanda (1982), 111 Ill. App. 3d 551, 444 N.E.2d 609.) It is well established that wide latitude will be allowed in cross-examination of an expert witness. (People v. Buggs (1986), 112 Ill. 2d 284, 493 N.E.2d 332.) Relevancy, however, remains a prerequisite for the admission of evidence. (People v. Free (1983), 94 Ill. 2d 378, 447 N.E.2d 218.) Therefore, when an expert witness expresses an opinion as to a defendant’s sanity, the scope of the inquiry into the basis for that opinion is broad. People v. Buggs (1986), 112 Ill. 2d 284, 493 N.E.2d 332.

The record shows that Dr. Barr offered expert testimony as to the defendant’s sanity based upon tests administered to the defendant. On cross-examination, the prosecutor elicited from Dr. Barr that at the time of the test the defendant was facing “legal difficulties.” The prosecutor did not elaborate on the nature of the legal difficulties, and we believe the defendant was not prejudiced by such comment.

In addition, if eliciting this statement constitutes error, it is harmless. If evidence of the defendant’s criminal record is later introduced, any error in the prosecutor’s reference to such record is harmless. (People v. Jones (1987), 155 Ill. App. 3d 641, 508 N.E.2d 357.) In the instant case, defense counsel introduced testimony about his criminal history. Indeed, during direct examination, Dr. Barr, a defense witness, explained that part of defendant’s problems related to depression defendant felt at receiving probation while his brother received imprisonment for a previous offense. In the instant case, we believe the trial court’s denial of defendant’s motion in limine did not constitute reversible error.

The defendant next contends the prosecutor committed reversible error during the cross-examination of Dr. Barr, in objecting to defense counsel’s closing argument, and in his closing argument. The State initially asserts that defense counsel waived these issues on appeal by failing to properly preserve these issues on appeal. (See People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.) The record indicates that defense counsel properly preserved the objections to the prosecutor’s closing argument and the statement made by the prosecutor during defense counsel’s closing argument. Defense counsel, however, did not properly preserve the objections to the cross-examination of Dr. Barr.

As to the merits of these objections, defendant first argues the prosecutor’s cross-examination of Dr. Barr insinuated that Dr. Barr violated the law by releasing the defendant after an earlier examination of defendant, and that Dr. Barr could have somehow prevented the murder from occurring by having defendant admitted in a hospital. The defendant asserts that the prosecutor improperly attempted to discredit Dr. Barr and that such line of questioning constitutes error. Although we believe the prosecutor’s attempt to discredit Dr. Barr was improper, such conduct does not amount to plain error.

Defendant next contends that reversible error occurred when the prosecutor asserted that the defense counsel “lied” during her closing argument. Comments made in closing argument not based on the evidence are improper. (People v. Holman (1984), 103 Ill. 2d 133, 469 N.E.2d 119.) Improper remarks, however, are harmless when the trial judge acts promptly to remove the remarks from the jury’s consideration. (People v. Carlson (1980), 79 Ill. 2d 564, 404 N.E.2d 233.) In the instant case, the prosecutor objected to a statement made by defense counsel at closing argument and commented that it was an “absolute total lie.” At that point, the trial judge defined lie and asked the prosecutor to withdraw the remark. The prosecutor promptly withdrew his remark. The trial judge further instructed the jury to disregard anything said by the lawyers that is not in evidence. Accordingly, we conclude the prosecutor’s remark was harmless error.

Next, the defendant contends that the prosecutor engaged in an inflammatory and prejudicial closing argument. During the prosecutor’s closing argument he stated that Dr. Barr and Dr. Egle had “the audacity to come in here and condemn mentally retarded people.” The defense counsel objected to the comment, and the trial judge sustained the objection. Defendant contends this statement was so prejudicial that it warrants a new trial.

We note that a prosecutor has wide latitude during closing argument. (People v. Richard (1980), 88 Ill. App. 3d 247, 410 N.E.2d 459.) Improper remarks in closing argument will not constitute reversible error unless they result in substantial prejudice to the defendant. (People v. Kinion (1982), 105 Ill. App. 3d 1069, 435 N.E.2d 533.) In the instant case, the record does not reveal the prosecutor’s comments regarding the “audacity” of defendant’s expert witnesses substantially prejudiced the defendant. We conclude, therefore, that such comment does not amount to reversible error.

Defendant also argues the guilty but mentally ill (GBMI) verdict form (Ill. Rev. Stat. 1987, ch. 38, par. 115—4(j)) is unconstitutional. Defendant contends the GBMI verdict "violates his due process rights under the Illinois and Federal Constitutions. He asserts that “[ajuthorizing a jury to find a defendant guilty but mentally ill deprives an accused of liberty without due process of law because it introduces into the jury’s fact-finding task a consideration that is wholly extraneous to the jury’s function, it diverts the jury’s attention from its primary duty, and it is unconstitutionally vague.”

The State contends that the defendant waived this issue on appeal. In order to challenge the constitutionality of a statute, the defendant must preserve the issue at trial and in a written post-trial motion. (See People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124; People v. Kerker (1984), 121 Ill. App. 3d 1072, 460 N.E.2d 771.) In the instant case, the defendant’s failure to properly preserve the issue at trial or in a written post-trial motion constitutes a waiver of such issue on appeal.

Moreover, defendant’s challenge to the constitutionality of this statute is not novel. In People v. DeWit (1984), 123 Ill. App. 3d 723, 463 N.E.2d 742, the defendant asserted that the GBMI verdict form promotes jury confusion and encourages a finding of GBMI as a compromise. The court disagreed and noted that section 115 — 4(j) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, par. 115—4(j)) expresses its requirements in simple and clear language and that the definition of mental illness provides meaningful standards for a jury to make required findings. People v. DeWit (1984), 123 Ill. App. 3d 723, 463 N.E.2d 742.

In addition, this court has upheld the constitutionality of the GBMI statute when faced with defendant’s procedural due process argument. In People v. Fierer (1987), 151 Ill. App. 3d 649, 503 N.E.2d 594, aff’d on other grounds (1988), 124 Ill. 2d 176, 529 N.E.2d 972, the defendant proposed that the GBMI statute violated his procedural due process rights. This court disagreed and held that the introduction of the GBMI verdict form into a criminal trial does not constitutionally deprive the defendant of procedural due process of law. (151 Ill. App. 3d at 660 (Heiple, J., concurring).) We note the supreme court affirmed this court’s decision without addressing the due process issue.

In addition, section 115 — 4(j) provides in part: “When the affirmative defense of insanity has been presented during the trial, the court, where warranted by the evidence, shall also provide the jury with a special verdict form of guilty but mentally ill ***.” (Ill. Rev. Stat. 1987, ch. 38, par. 115— 4(j).) Defendant submits the language “where warranted by the evidence” is unconstitutionally vague.

Instructing the jury on the elements of an offense is within the trial court’s discretion. (107 Ill. 2d R. 451.) This standard is consistent with the present standard that an instruction should be submitted where there is any evidence which supports a party’s theory of the case. (See People v. Carr (1986), 149 Ill. App. 3d 918, 501 N.E.2d 241.) Likewise, it is the trial judge’s duty to give an instruction or verdict form when enough evidence has been presented to “support” or “warrant” the giving of such. Accordingly, we find the GBMI verdiet form is not unconstitutionally vague.

Defendant finally contends that his nonextended, 60-year sentence was excessive. Pursuant to Supreme Court Rule 615(b)(4), we have the discretionary power to reduce an excessive sentence. (107 Ill. 2d R. 615(b)(4).) However, a trial court’s sentencing decision will not be disturbed absent an abuse of discretion. (People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.) The Illinois Constitution requires 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.) Here, the defendant argues the trial court abused its discretion in imposing the nonextended term of 60 years’ imprisonment.

With respect to the nature and circumstances of the particular offense, we note that in the instant case, defendant was amongst a group of people involved in a shooting, another member of the group brought the gun used in the shooting, and defendant has repeatedly stated that he did not know a member of the group carried a gun the day of the murder. Taken in its proper context, we believe the defendant’s actions do not compare to a calculated, premeditated murderer.

With respect to the issue of rehabilitation, we have reduced a defendant’s sentence on the basis of rehabilitative potential where a defendant came from a poor social environment and had a limited education (see People v. Kosanovich (1979), 69 Ill. App. 3d 748, 387 N.E.2d 1061), where a defendant has expressed a desire to continue his education (see People v. Nelson (1982), 106 Ill. App. 3d 838, 436 N.E.2d 655), and where the defendant was 16 years old (see People v. Rickard (1981), 99 Ill. App. 3d 914, 425 N.E.2d 1317). In the instant case, defendant was found to be a mildly retarded 17-year-old at the time of the incident by the State’s psychiatrist.

In light of the circumstances presented, the defendant’s age and his mild mental retardation, we believe that defendant’s rehabilitative potential was not given adequate consideration. Therefore, we affirm the defendant’s murder conviction but reduce the sentence from 60 years to 30 years.

Judgment affirmed as modified.

SCOTT and WOMBACHER, JJ, concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE HEIPLE

license: Public Domain

text:
    CHARLES BRAY, Plaintiff-Appellant, v. STAN’S RENTAL, INC., Defendant-Appellee.
    Third District
    No. 3—89—0511
    Opinion filed April 10, 1990.
    Julie L. Galassi, of Harvey & Stuckel, Chartered, of Peoria, for appellant.
    Darrell K. Seigler, of Ottawa, for appellee.
   PRESIDING JUSTICE HEIPLE

delivered the opinion of the court:

The plaintiff, Charles Bray, filed a complaint against the defendant, Stan’s Rental, Inc., alleging that he was fired by the defendant in retaliation for pursuing his rights under the Workers’ Compensation Act (Ill. Rev. Stat. 1987, ch. 48, par. 138.1 et seq.). The defendant subsequently filed a motion for summary judgment. The trial court granted the defendant’s motion, and the plaintiff appeals. We reverse.

The record reveals that on January 11, 1988, the plaintiff was injured while working at the defendant’s warehouse. In his deposition, the plaintiff explained that he hit his head on an I-beam and was knocked unconscious for a few seconds. His supervisor, Jim Baxter, was present at the time, and the plaintiff immediately informed him of the accident. The plaintiff stated that he waited a few days before seeking medical attention for the injury, because some of the other employees told him he was causing the defendant’s insurance rates to go up. He explained that he also had been injured in 1986 and that as a result of that injury he was unable to work for seven months. During that time, he received temporary total disability benefits from the defendant. He noted that he was reinjured in 1987 and lost 3V2 months of work, for which he also received temporary total disability benefits.

When the plaintiff saw his family physician a few days after the instant accident, he was referred to a neurologist in Peoria. The neurologist diagnosed the plaintiff as suffering from a concussion and treated him with medication. The plaintiff estimated that as a result of his injury he lost approximately five days of work. He stated that he notified Jim Baxter that he would not be in those days.

The plaintiff further stated that he was scheduled to work on February 25, 1988, but awoke feeling sick. He called the defendant’s store at 6:50 a.m. and informed Sharon Snell, the secretary, that he would not be in that day because he was not feeling well. He also told her to notify Gaylon Ryg, the defendant’s president, that he would not be in.

About 10:30 a.m., the plaintiff received a phone call from Jim Baxter inquiring why he was not at work. The plaintiff told him that he was not feeling well and that he was dizzy and had been vomiting. According to the plaintiff, Baxter told him that he was fired because, “[w]ell, you’ve been taking off too many days seeing the doctor and stuff.” Later in the conversation, the plaintiff asked Baxter why he was fired and he replied that the plaintiff was “costing the company a few bucks.”

Jim Baxter stated in his deposition that the plaintiff was fired for a number of reasons, including tardiness and poor work performance. He also explained that employees were required to call in between 7 and 7:10 a.m. if they were not going to be in that day, but the plaintiff had not called until 7:30 a.m. Baxter denied making any statement to the plaintiff regarding the plaintiff’s costing the company money, claiming instead that it was the plaintiff who had made that statement. He did, however, recall that he spoke to the employees during their breaks regarding safety in the workplace and told them that when someone was injured it was expensive for the company. Baxter noted that he had fired the plaintiff once before, but rehired him the same day.

The defendant’s president, Gaylon Ryg, stated in his deposition that although he had affirmed the decision to fire the plaintiff, he had not instructed Baxter to do so. He also noted that of the six other employees who had filed workers’ compensation claims in the past, five were still employed by the defendant.

The record further reveals that on March 17, 1988, the plaintiff filed an application for adjustment of claim with the Industrial Commission for the instant injury. The application was signed by the plaintiff on February 25, 1988, the day he was fired by the defendant.

The plaintiff argues on appeal that the trial court erred in granting the defendant’s motion for summary judgment.

A motion for summary judgment should be granted “if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Ill. Rev. Stat. 1987, ch. 110, par. 2—1005(c).) In ruling on the motion, the trial judge should construe the pleadings, affidavits, exhibits, and depositions most strictly against the moving party and most liberally in favor of the opponent. (Staton v. Amax Coal Co. (1984), 122 Ill. App. 3d 631, 461 N.E.2d 612.) Summary judgment is not intended to be used as a means of weighing conflicting issues of fact. Fletcher v. Boxx (1973), 10 Ill. App. 3d 928, 295 N.E.2d 248.

To sustain a cause of action for retaliatory discharge, the plaintiff must allege that he was discharged in retaliation for his or her activities and that the discharge violated a clear mandate of public policy. (Palmateer v. International Harvester Co. (1981), 85 Ill. 2d 124, 421 N.E.2d 876.) The Illinois Supreme Court has expressly stated that it is against public policy to terminate employees for asserting their rights under the Workers’ Compensation Act. (See Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 384 N.E.2d 353.) It is not necessary, however, that the employee actually file a claim for workers’ compensation prior to his discharge, but only that he seek medical attention for the injuries. Hinthorn v. Roland’s of Bloomington, Inc. (1987), 151 Ill. App. 3d 1006, 503 N.E.2d 1128.

In the instant case, the trial court held as a matter of law that no genuine issues of material fact existed regarding whether the plaintiff was discharged for pursuing his rights under the Workers’ Compensation Act. We disagree. The plaintiff stated in his deposition that he was told by his supervisor that he was being fired because he had missed too many days due to his injury and because he was costing the company too much money. The supervisor denied making any such statements and further stated that the plaintiff was fired because of tardiness and poor work performance.

Based on this record, we find that at a minimum a genuine issue of material fact exists as to the reason behind the plaintiff’s discharge. The question is one of credibility regarding the plaintiff’s testimony and that of his supervisor, and as such should be left to the trier of fact. The trial court could not have granted summary judgment here without improperly weighing this conflicting evidence. Accordingly, we find that the court erred in granting summary judgment.

The judgment of the circuit court of La Salle County is reversed, and the cause is remanded for further proceedings.

Reversed and remanded.

BARRY and STOUDER, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICHARD KUNCE, Defendant-Appellant.
    Third District
    No. 3—89—0260
    Opinion filed April 10, 1990.

      Catherine Fitzsimmons, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Raymond Kimbell III, State’s Attorney, of Galesburg (Judith Z. Kelly, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE HEIPLE

delivered the opinion of the court:

A jury convicted the defendant, Richard Kunce, of forgery on an accountability theory (Ill. Rev. Stat. 1987, ch. 38, pars. 17—3(a)(1), 5—2(c)). The trial court sentenced him to 30 months’ probation and 16 days in the county jail. The defendant appeals, essentially contending that he innocently relied upon the advice of an attorney.

The record shows that on May 12, 1979, Carole Stevens’ husband, Carl, died. Carole thereafter kept her husband’s body in a bedroom, apparently believing despite numerous signs of death that he was merely in a coma. In May of 1980, the defendant first visited Carole’s house and at that time saw her husband’s body. The defendant thereafter visited on numerous occasions and in 1986 moved in with Carole. In January of 1988, the police removed Carl’s body from the house.

Carole testified at the defendant’s forgery trial that in 1984 a balloon payment on her mortgage came due. Her brother-in-law, attorney Roger Stevens, prepared Carl’s power of attorney so Carole could refinance the house. Roger mailed the document to the defendant with directions for him to sign it as a witness to Carl’s signature and then forward it to Carole. According to Carole, when she received the document in the mail, Roger and the defendant had already signed it. She then signed Carl’s name on it and obtained his mother’s signature as another witness. Carole thereafter used the power of attorney to execute a new note and mortgage on her house, signing those documents on behalf of Carl and herself. She testified that she did not intend to defraud the bank, but merely wanted to keep her house. Toward that end, she claimed she relied entirely on Roger’s advice as a lawyer. She also noted that Roger had supported her after Carl died.

Detective Stephen Earl Johnson of the Knox County sheriff’s department testified that in June of 1979 Roger Stevens had contacted his department and indicated that any attempts at entry into Carole’s house or interference with her family would result in a harassment suit against the department.

Sergeant Dick Flanagan of the Illinois State Police testified that the defendant told him he had signed the power of attorney immediately after Carole signed Carl’s name on it.

The defendant testified that he had known Roger Stevens since 1978. Roger had informed him that they were going to use the power of attorney to refinance Carole’s house. Pursuant to Roger’s mailed instructions, the defendant had signed the power of attorney as a witness and then forwarded it to Carole. He admitted knowing about Carl’s condition when he signed the power of attorney. The defendant further testified that he had incorrectly told the police that he signed the power of attorney after Carole signed it. When he made the statement, he was disoriented because he had not had anything to eat or drink for three days. The defendant noted that his only intention in signing the power of attorney was to help Carole refinance the house.

The record contains the handwritten instructions from Roger to the defendant and Carole regarding execution of the power of attorney. Roger instructed the defendant to sign as a witness to Carl’s signature, then forward the document to Carole. He instructed Carole to have Carl sign the power of attorney on each page. Later in the instructions to Carole, Roger told her that the bank would require her to sign a document stating that Carl had not revoked the power of attorney and that he was still alive. Roger noted that this was just a formality, but also told her not to volunteer the affidavit unless the bank requested it.

Other evidence showed that Roger Stevens had.been in Carole’s house after Carl died. It was not clear, however, whether he saw Carl’s body.

On appeal, the defendant argues that the State failed to prove that he had the requisite intent to defraud or facilitate an offense. He claims that he relied on the directions of a lawyer in signing the power of attorney and did not know that either he or Carole could be defrauding the bank.

A person commits forgery when, with intent to defraud, he knowingly makes or alters any document capable of defrauding another in such manner that it purports to have been made by another or by authority of one who did not give such authority. (Ill. Rev. Stat. 1987, ch. 38, par. 17— 3(a)(1).) “Intent to defraud” means an intention to cause another to assume, create, transfer, alter, or terminate any right, obligation, or power with reference to any person or property. (Ill. Rev. Stat. 1987, ch. 38, par. 17—3(b).) A person is legally accountable for the conduct of another when, 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).

Guilt for forgery under an accountability theory can be shown by circumstantial evidence. (People v. Passantino (1979), 67 Ill. App. 3d 469, 385 N.E.2d 141.) Intent to defraud may be inferred from the facts and circumstances surrounding the transaction. (People v. Bailey (1958), 15 Ill. 2d 18, 153 N.E.2d 584.) When a reviewing court is presented with a challenge to the sufficiency of the evidence, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267.

This is a case where reviewing the evidence “in the light most favorable to the prosecution” takes on special significance. All of the evidence regarding Roger’s knowledge and the defendant’s intent is open to interpretation. We find, however, that under the instant facts a rational trier of fact could conclude that Roger did not know that Carl was dead when he helped Carole prepare the power of attorney. Moreover, the jury could also conclude that the defendant actively and knowingly participated in the scheme to defraud the bank by witnessing Carl’s signature when he knew that Carl could not sign the document and knew that it was going to be used to deceive the bank. Thus, viewing the evidence in the light most favorable to the prosecution, we conclude that the evidence was sufficient for the jury to find beyond a reasonable doubt that the defendant knew of the fraudulent nature of the document and was not innocently relying upon an attorney’s assurance that it was legal to refinance a house in this manner.

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

Affirmed.

BARRY and SCOTT, JJ., concur.


text:
    WILLIAM DILDINE, Plaintiff-Appellant, v. HUNT TRANSPORTATION, INC., Defendant-Appellee.
    Third District
    No. 3—89—0410
    Opinion filed April 10, 1990.

      Winstein, Kavensky, Wallace & Doughty, of Rock Island (Allan Hartsock, of counsel), for appellant.
    Lane & Waterman, of Rock Island, and John D. DeDoncker, of Lane & Waterman, of Davenport, Iowa (David DeDoncker, of counsel), for appellee.
   PRESIDING JUSTICE HEIPLE

delivered the opinion of the court:

The plaintiff, William Dildine, was injured in a propane explosion while making repairs on a Happy Cab Company automobile (hereinafter Happy Cab). The accident occurred in the garage area of a building owned by the defendant, Hunt Transportation, Inc. (hereinafter Hunt), and occupied by Hunt and Happy Cab. Dildine’s complaint alleged that Hunt should be liable for the injuries he received under a theory of common law negligence. The trial court granted Hunt’s motion to dismiss by finding that Dildine was a joint employee of Hunt and Happy Cab and that the Workers’ Compensation Act (Ill. Rev. Stat. 1987, ch. 48, par. 138.1 et seq.) prohibits an employee from bringing a tort suit against his employer. We affirm.

The relevant facts were set forth in uncontested affidavits submitted by each party. Hunt and Happy Cab are wholly owned subsidiaries of Butler Holding Company, Inc. (hereinafter Butler). Butler files consolidated tax returns on behalf of Hunt and Happy Cab. Hunt carries a workers’ compensation policy that lists Happy Cab as an additional insured. Dildine has been paid under the Hunt policy and is continuing to receive benefits under the Hunt policy. Happy Cab was not required to pay rent for the use of the garage area in the building owned by Hunt. Dildine was paid for the work he performed by Happy Cab.

At the time of the accident, Louis Krueger, Midwestern regional marketing manager for Hunt, had authority over all operations at the building owned by Hunt. Krueger had authority to direct and oversee the employees of Hunt and Happy Cab. Although Dildine spent most of his time repairing Happy Cab automobiles, Krueger had authority to direct Dildine to work for Hunt whenever necessary. Judi Stanton, a marketing manager for Hunt, stated by affidavit that she also had the power to direct the activities of Hunt and Happy Cab employees. Dildine performed the following work for Hunt: repaired truck trailers for Hunt, rearranged trailer loads, and occasionally drove loaded trucks for Hunt.

The sole issue on appeal is to determine whether the trial court properly determined as a matter of law that Dildine was a joint employee of Hunt and Happy Cab. We find that based on the undisputed facts, the trial court decision was correct.

The law is settled that when only the legal effect of undisputed facts is in question a trial court may properly grant a motion to dismiss pursuant to section 2 — 619 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—619). (Village of Oakwood Hills v. Diamond (1984), 125 Ill. App. 3d 58.) In the instant case, the affidavits of the parties present no “material and genuine disputed question of fact.” (Ill. Rev. Stat. 1987, ch. 110, par. 2—619(c).) Nevertheless, the plaintiff argues that the trial court could not determine as a matter of law whether Dildine was a joint employee since the court would have to necessarily balance a number of factors. Such consideration does not relieve the trial court of its responsibility and obligation to decide questions of law. In ruling on motions such as a motion to dismiss and a motion for summary judgment, the trial court will inevitably have to make determinations of law, based on the uncontroverted facts. (Ralston v. Casanova (1984), 129 Ill. App. 3d 1050.) In the case at bar, the trial court, in making its determination, necessarily considered the various factors that indicate whether an employment relationship exists as established by Illinois case law. While questions of fact and questions of law often blend together, the distinction remains a valid legal principle.

In determining whether an employment relationship exists, Illinois courts will examine the following factors: (1) who has the right to control an individual; (2) who controls the manner in which work is performed; (3) the method of payment; (4) who has the right to discharge; and (5) who furnishes the tools, materials, and equipment. (Clark v. Industrial Comm’n (1973), 54 Ill. 2d 311.) Of these factors, the right to control the work is perhaps the most important single factor. (Clark, 54 Ill. 2d at 314.) The undisputed facts show that Hunt’s managers controlled Dildine’s work and had the right to discharge him. While Dildine performed work for the most part on Happy Cab automobiles, Dildine did perform numerous jobs for Hunt on a regular basis. Further, Hunt owned the garage where the explosion occurred and Hunt had an insurance policy that included Happy Cab employees. Based on these facts, we cannot find that the trial court erred in finding that, as a matter of law, Dildine was a joint employee of both Hunt and Happy Cab.

The plaintiff relies heavily on this court’s ruling in Nutt v. Pierce Waste Oil Services, Inc. (1983), 112 Ill. App. 3d 612, wherein this court stated that no supreme court case has found a joint employer relationship to exist when the salary is provided on a unilateral basis. In the instant case, Happy Cab paid Dildine for the work he performed. While no supreme court case has reached such a result, the appellate court case of Freeman v. Augustine’s Inc. (1977), 46 Ill. App. 3d 230, ruled in this manner. In Freeman, a corporation other than the corporation paying wages was found to be either a borrowing employer or joint employer on the grounds that control and benefit were shared. We find that a similar result is warranted in the case at bar. The question of who pays an employee’s wages is only one factor to be considered along with other factors in determining whether an employment relationship exists. The totality of the relevant factors in the present action supports the trial court’s determination that, as a matter of law, Hunt was a joint employer of Dildine.

For all the foregoing reasons, the judgment of circuit court of Rock Island County is affirmed.

Affirmed.

SCOTT and STOUDER, JJ., concur.


text:
    ROBERT ADOLPHSON, d/b/a Adolphson Well Drilling Service, Plaintiff and Counterdefendant and Appellant-Cross-Appellee, v. GARDNER-DENVER COMPANY, Defendant and Counterplaintiff and Appellee-Cross-Appellant.
    Third District
    No. 3—89—0052
    Opinion filed April 10, 1990.

      Katz, McAndrews, Durkee, Balch & Lefstein, P.C., of Rock Island (Samuel S. McHard, of counsel), for appellant.
    Constance A. Schriver and Carole J. Anderson, both of Lane & Waterman, of Davenport, Iowa, for appellee.
   PRESIDING JUSTICE HEIPLE

delivered the opinion of the court:

The plaintiff, Robert Adolphson, brought suit in 1980 against the defendant, Gardner-Denver Company, for breach of contractual obligation to repair and for breach of implied warranties regarding a water well drilling rig purchased from Gardner-Denver and delivered to Adolphson in 1978. Adolphson sought $747,409.89 in damages representing lost profits, expenses incurred in repairing the rig, and the difference between the value of the rig as warranted and as delivered. Gardner-Denver counterclaimed for $8,775.10 in unpaid invoices plus the costs of bringing this action. The trial court found in favor of Gardner-Denver on Adolphson’s breach of contract and breach of warranties claims, and in favor of Adolphson on Gardner-Denver’s counterclaim. Both parties appeal the trial court decision.

Adolphson, sole owner of Adolphson Well Drilling Service since 1958, purchased well-drilling equipment from Gardner-Denver since 1968. In 1976, Adolphson was interested in purchasing a new rig, and he attended a 1976 well-drilling convention where he learned about Gardner-Denver’s 17W model, a new prototype rig. At that time, Adolphson owned one of Gardner-Denver’s 15W rigs, but Adolphson wanted a rig with greater well-drilling capacity than the 15W model. After the convention, Gardner-Denver brought a 17W rig for Adolphson to test on sites which reflected the type of work he does. Adolphson liked many of the features of the 17W prototype rig but also had several criticisms. Gardner-Denver recorded Adolphson’s criticisms and told him that the problems would be resolved.

Thereafter, at the 1977 water well-drilling convention, Gardner-Denver representatives allegedly told Adolphson that the 17W rig design had been perfected and the bugs had been worked out of the rig. Additionally, Adolphson was told that the 17W rig would drill twice as fast as his current 15W rig. Further, Gardner-Denver, in its sales brochure, made several representations about the 17W rig, such as “the versatile CD-17W drill is machined strictly for profitable water well drilling” and the 17W rig is designed for “quick service and lower maintenance.” Adolphson then began negotiations to purchase a 17W rig.

On August 30, 1977, Adolphson entered into a purchase agreement with Gardner-Denver to buy a 17W rig for $219,458. Paragraph 15 of the agreement stated:

“This proposal cannot be changed or varied by any verbal agreements and all orders are accepted under the provisions set forth.”

Paragraph 6 of the agreement, which set forth the warranty provisions stated:

“Subject to the terms and conditions hereinafter set forth, Gardner-Denver Company (the Company) warrants products and parts sold by it, insofar as they are of its own manufacture, against defects of material and workmanship, under use and service in accordance with Company’s written instructions, recommendations and ratings for installation, operation, maintenance and service of products, for a period of three months from the date of initial use, provided that such three-month period shall in no case extend beyond one year from the date of shipment by Company. THIS WARRANTY IS LIMITED TO THE REPAIR OR REPLACEMENT, AS COMPANY MAY ELECT, OF ANY DEFECTIVE PARTS, REGARDING WHICH, UPON DISCOVERY OF THE DEFECTS, THE PURCHASER HAS GIVEN IMMEDIATE WRITTEN NOTICE. Installation and transportation costs are not included. Company shall have the option of requiring the return to it of the defective material, transportation prepaid, for inspection. Because of varying conditions of installation and operation, all guarantees of performance are subject to variation of 3%. COMPANY DOES NOT WARRANT THE MERCHANTABILITY OF ITS PRODUCTS AND DOES NOT MAKE ANY WARRANTY, EXPRESS OR IMPLIED, OTHER THAN THE WARRANTY CONTAINED HEREIN. Company has not authorized anybody to make representation of warranty other than the warranty contained herein.” (Capitalization in original.)

The 17W rig was delivered to Adolphson in early January 1978. At the planned start-up time, there was extremely cold weather, and the new rig would not start without a start-up kit. In mid-January Gardner-Denver installed a start-up kit and sent one of its repairmen, Bert Jones, to start up the rig. After drilling 50 feet with the new rig, the air compressor was turned on but would not work properly. The 17W rig was then taken to Quincy, Illinois, and underwent repairs for 30 days. During the remainder of 1978 and 1979, numerous mechanical problems arose on the 17W rig. Gardner-Denver responded to these problems by sending replacement parts or sending their repairmen to work on the rig. On August 30, 1978, Gardner-Denver unilaterally renewed the rig warranty for an additional three-month period effective September 1, 1978, and gave a new two-year air compressor warranty to Adolphson. Thereafter, pursuant to verbal representations, Gardner-Denver continued to do warranty work on Adolphson’s 17W rig until January of 1980.

At trial, the plaintiff testified that on July 31, 1978, Tony Elegante, a Midwest manager for Gardner-Denver, visited him and made the following representations: (1) Gardner-Denver would stand behind the rig and cure all of its problems; (2) Adolphson would not be left holding the bag if a problem occurred; and (3) they would make sure the continued lost profits would not financially impair Adolphson. Adolphson further stated that Gardner-Denver responded to all of his complaints concerning the 17W rig and that he did not pay Gardner-Denver for any repair costs incurred by Gardner-Denver in 1978, 1979, or 1980. Adolphson claimed that he lost 190 days of production in the first two years of owning the 17W rig, and that in January of 1980 he unsuccessfully tried to sell the rig. Adolphson stated that the 17W rig was down for repairs 19 days in 1980 and down eight days in 1981. Adolphson admitted that 1979 was his most profitable year ever and that the well-drilling market suffered from an economic downturn beginning in 1980 or 1981. Adolphson also acknowledged that he could not separate how much of his lost profits could be attributed to the economy and how much to an increased number of competitors. Adolphson claims lost profits extending over the IOV2 years he has been using the 17W rig based on his assessment of how much additional footage he could have drilled if the 17W rig had performed as warranted.

Also testifying for the plaintiff at trial were the plaintiff’s expert witness, Dr. Thomas Eaton, and the plaintiff’s son, Kerry Adolphson. Dr. Eaton testified that in his opinion the 17W rig was defectively designed. Specifically, Dr. Eaton testified that the one-engine rig design, the omission of a ladder, and the choice of oil were all design defects. Dr. Eaton further testified that the life expectancy of a rig would be “between 5 to 15 years” and “realistically 7 — 10.” Dr. Eaton testified that when he examined the rig it had been in service for IOV2 years and it was in good condition for its age. Additionally, Dr. Eaton stated that Adolphson’s rig has operated with no major repairs since 1981.

Kerry Adolphson, the operator of the 17W rig, testified that the rig was not merchantable and that Gardner-Denver’s repair work was not adequate to bring the rig up to warranty standards and that numerous problems on the 17W rig have never been adequately resolved. Kerry Adolphson admitted that Gardner-Denver shipped every part he ordered.

Walt Ervin, the owner of another 17W rig, testified in a deposition that he had numerous problems with his rig and that the 17W rig was considered a lemon in the industry. In Ervin’s opinion, neither his rig nor Adolphson’s rig was fit for the ordinary purpose for which it was intended to be used.

Testifying for Gardner-Denver at trial were Bert Jones, a 23-year employee of Gardner-Denver, design engineer William Bezner, and 17W rig owner Edgar Hurdis. Jones testified that during 1978 and 1979 Gardner-Denver corrected every problem the Adolphsons reported to the company. Jones further testified that after repairs were made to the rig, the Adolphson rig was worth what they paid for it. Bezner, who helped design the 17W rig, testified that the rig was adequately tested and that the design was not defective. Hurdis, who has been operating a 17W rig for 10 years, stated that at first he was frustrated with his 17W rig but the problems were corrected by Gardner-Denver and “any new rig I have ever gotten takes a year or so to square them away.” Hurdis thinks the 17W rig is a good machine, very versatile and worth what he paid for it.

After a trial lasting nearly two weeks, Judge Ronald Taber found that Gardner-Denver honored the express warranty set forth in the sales contract fully, that no additional warranties were created, and that the plaintiff failed to prove damages. Further, Judge Taber found that Gardner-Denver failed to support its counterclaim by the required burden of proof.

On appeal, the plaintiff raises three issues: (1) did the trial court err in finding that the only warranty between Gardner-Denver and Adolphson Well Drilling Service was the written warranty printed on the sales contract; (2) did the trial court err in finding the express and implied warranties were not breached; and (3) did the trial court err in not awarding Adolphson damages as a result of the defendant’s breaches of warranty? We find that the trial court’s judgment in favor of Gardner-Denver on the breach of warranty claims was not against the manifest weight of the evidence and accordingly affirm.

The standard that this court must apply in the instant case is well settled. A reviewing court may not reverse the judgment of a trial court merely because different conclusions could be drawn. (General Grocer Co. v. Bachar (1977), 51 Ill. App. 3d 907.) The findings of the trial court will not be disturbed on appeal unless they are clearly contrary to the manifest weight of the evidence. Peoria Harbor Marina v. McGlasson (1982), 105 Ill. App. 3d 723.

The plaintiff first argues that representations were made to him before, during, and after he entered into the purchase agreement to buy the 17W rig which created express warranties pursuant to section 2—313 of the Illinois Commercial Code (Ill. Rev. Stat. 1987, ch. 26, par. 2—313). Section 2—313 provides in pertinent part:

“(1) Express warranties by the seller are created as follows:
(a) Any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise.
(b) Any description of the goods which is made part of the basis of the bargain creates an express warranty that the goods shall conform to the description. * * *
(2) It is not necessary to the creation of an express warranty that the seller use formal words such as ‘warrant’ or ‘guarantee’ or that he have a specific intention to make a warranty, but an affirmation merely of the value of the goods or a statement purporting to be merely the seller’s opinion or commendation of the goods does not create a warranty.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 26, par. 2—313.)

The trial court found that the only express warranty that existed was in the purchase agreement and that any other representations that were made, either by Gardner-Denver representatives or in the sales brochures, was “puffing sales language.” We cannot find that this ruling was manifestly erroneous.

The proposal Gardner-Denver made to Robert Adolphson in July 1977 and the purchase agreement signed a month later contained the following language:

“This warranty is limited to the repair or replacement, as company may elect, of any defective parts, regarding which, upon discovery of the defects, the purchaser has given immediate written notice. *** Company does not warrant the merchantability of its products and does not make any warranty, express or implied, other than the warranty contained herein. Company has not authorized anybody to make any representation of warranty other than the warranty contained herein.”

In addition, paragraph 15 of the terms and conditions of sale set forth in both of these documents states:

“This proposal cannot be changed or varied by any verbal agreements and all orders are accepted under the provisions set forth.”

Adolphson admitted that he understood the terms of the purchase agreement prior to signing the document. Adolphson saw the prototype 17W rig demonstrated and had a month in which to study the proposal, which included the terms and conditions set forth above. Adolphson is an experienced businessman who has been in the well-drilling business since 1958. Under these facts, the trial court could have found that the purchase agreement was a complete representation of the warranties that existed between the parties and that the alleged sales talk and the language found in the sales brochures were merely “commendation of the goods” and did not constitute a promise or description which became a basis of the bargain.

Moreover, under Illinois law the parties must have intended that the representations made were to be construed as a warranty. (Admiral Oasis Hotel Corp. v. Home Gas Industries, Inc. (1965), 68 Ill. App. 2d 297.) Here, the trial court was not compelled to believe that Adolphson relied upon sales talk in entering the purchase agreement. This finding is buttressed by the clear language of the purchase agreement and the fact that Robert Adolphson is an experienced businessman who admittedly understood the terms of the contract. Likewise, the trial court was not obligated to accept the plaintiff’s argument that the sales brochure created an express warranty. This is especially true given the fact that Adolphson testified that he did not rely on the sales brochure and could not recall whether he first saw it before or after the sale. Further, unlike the Crest decision (Crest Container Corp. v. R.H. Bishop Co. (1982), 111 Ill. App. 3d 1068), which the defendant heavily relies on, the sales brochure in the instant case was not specifically tailored for the Adolphson sale and only included general statements, such as the 17W rig is designed for “quick service and lower maintenance.” Under the facts of the case at bar, the trial court could reasonably conclude that such statements were not intended to be a basis of the bargain but merely constituted puffing sales language.

Adolphson additionally contends, pursuant to section 2— 719(2) of the Illinois Commercial Code, that the plaintiff is not prevented from proving other implied and express warranties outside of the purchase agreement. Section 2 — 719(2) permits contract modification if a limited warranty fails of its essential purpose. (Ill. Rev. Stat. 1987, ch. 26, par. 2—719(2).) Adolphson argues that the disclaimer of warranties in paragraph 6 of the purchase agreement failed of its essential purpose since repair and replacement of parts did not solve the rig’s continuous mechanical problems. Gardner-Denver claims that there was no failure of the disclaimer’s essential purpose since the company provided the necessary repairs and replaced defective parts in order to make the 17W rig functional. Testimony was presented that Gardner-Denver responded to all of Adolphson’s requests for repairs, that all the parts ordered from the company were delivered, and that Gardner-Denver voluntarily extended the warranty period well beyond the period provided in the purchase agreement. Additionally, evidence was presented that the 17W rig was still operating IOV2 years later and that the rig had not undergone major repairs since 1981. Under these circumstances, it was not manifestly erroneous for the trial court to conclude that the limited warranty did not fail of its essential purpose.

Consequently, we hold that the trial court did not err in finding that the only warranty that existed between Adolphson and Gardner-Denver was that contained in the purchase agreement. In so ruling, this court must decide if the trial court erred in finding that the warranty provided in the purchase agreement was breached. The warranty provided in the agreement was limited to the repair or replacement of any defective parts. As previously discussed, there was sufficient evidence presented at trial to support a finding that the defendant corrected all of the mechanical problems on the 17W rig which were reported to the company by Adolphson at its own expense, thus honoring the express warranty fully. Since this court finds that the trial court did not err in ruling that the express warranty was not breached, this court need not address the issue of damages.

Finally, we agree with the trial court that Gardner-Denver failed to prove that they were entitled to $8,775.10 in unpaid invoices for repair parts which was alleged in their counterclaim. From a scrutiny of the record, we are unable to determine whether these invoices for repair parts covered parts furnished under warranty or thereafter, nor is the agreement or expectation of the parties pertaining thereto made clear. There is a presumption in favor of the correctness of the trial court’s ruling. To rebut that presumption, the party challenging that correctness is obliged to furnish an adequate record to demonstrate otherwise. That has not been done. Consequently, we must assume that the trial court decision in that regard was correct and entitled to affirmance.

For all the foregoing reasons the decision of the circuit court of Mercer County is affirmed.

Affirmed.

BARRY and SCOTT, JJ., concur.


author: JUSTICE STOUDER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOSHUA FIERER, Defendant-Appellant.
    Third District
    No. 3—89—0411
    Opinion filed April 12, 1990.

      Edward M. Genson, Jeffrey B. Steinback, and Marc W. Martin, all of Genson, Steinback & Gillespie, of Chicago (James Cutrone, of counsel), for appellant.
    Erik I. Blanc, State’s Attorney, of Pekin (Terry A. Mertel, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE STOUDER

delivered the opinion of the court:

The defendant, Joshua Fierer, filed motions to bar his prosecution for first degree murder and dismiss the indictment against him on grounds of double jeopardy. The circuit court of Tazewell County denied the motions, and the defendant brings this appeal pursuant to Supreme Court Rule 604(f) (107 Ill. 2d R. 604(f)).

At the defendant’s first murder trial, the jury found the defendant guilty but mentally ill (GBMI) (Ill. Rev. Stat. 1987, ch. 38, par. 115—4(j)) and he was sentenced to 30 years in prison. On appeal, this court reversed and remanded the cause for a new trial (People v. Fierer (1987), 151 Ill. App. 3d 649, 503 N.E.2d 594), and the Illinois Supreme Court affirmed this court’s reversal (People v. Fierer (1988), 124 Ill. 2d 176, 529 N.E.2d 972). The facts of the case are adequately set forth in those opinions and need not be repeated here. This court found, inter alia, and the supreme court agreed that the jury was improperly instructed on the verdict of GBMI. The jury was instructed that in order to find the defendant guilty but mentally ill it must find, among other things, that “[b]y a preponderance of the evidence [the] defendant was sane at the time of the commission of the offense.” However, section 115 — 4(j) of the Code of Criminal Procedure of 1963 requires that the jury be instructed that it must find beyond a reasonable doubt that the defendant was not legally insane at the time of the commission of the alleged acts. (Ill. Rev. Stat. 1987, ch. 38, par. 115—4(j).) We therefore reversed and remanded the cause for a new trial.

On appeal in the instant case, the defendant contends his retrial for murder violates the double jeopardy provisions of the United States Constitution (U.S. Const., amend. V) and the Illinois Constitution (Ill. Const. 1970, art. I, §10).

The defendant argues that reprosecution is barred by the implied acquittal doctrine. (See Green v. United States (1957), 355 U.S. 184, 2 L. Ed. 2d 199, 78 S. Ct. 221.) In Green, the jury was instructed on both first and second degree murder and found Green guilty of second degree murder. The verdict was silent as to the first degree murder charge. On appeal, his conviction was reversed and remanded for a new trial. At retrial, Green was found guilty of first degree murder. The United States Supreme Court reversed Green’s conviction, holding that the jury’s silence in the first trial on the first degree murder charge and finding of guilt for second degree murder constituted “an implicit acquittal on the charge of first degree murder.” 355 U.S. at 190, 2 L. Ed. 2d at 206, 78 S. Ct. at 225.

In the instant case, the defendant contends that the jury’s verdict of GBMI implicitly acquitted him of murder and that therefore he cannot again be tried for murder without twice being put “in jeopardy of life or limb.” Under the circumstances and given the nature of a GBMI verdict, we find no merit to the defendant’s contention.

In People v. Crews (1988), 122 Ill. 2d 266, 522 N.E.2d 1167, the Illinois Supreme Court upheld the death sentence of a defendant who pled guilty but mentally ill. The court stated: “A GBMI offender is no less guilty than one who is guilty and not mentally ill; unlike insanity, a GBMI finding or plea does not relieve an offender of criminal responsibility for his conduct. By its plain terms, section 5 — 2—6(a) authorizes imposition on a GBMI offender of any sentence that could be imposed on one convicted of the same offense without the additional finding of mental illness ***.” (People v. Crews (1988), 122 Ill. 2d 266, 278, 522 N.E.2d 1167, 1173.) In finding a defendant guilty but mentally ill, the trier of fact is finding the defendant guilty of the offense charged and also finding that he was mentally ill at the time the acts were committed. In the instant case, the jury’s determination did not constitute an implicit acquittal of the murder charge. The jury found the defendant guilty of murder but mentally ill; this is not the same as the jury implicitly finding the defendant not guilty of murder because it found him guilty of some other offense, such as second degree murder.

In a related argument, the defendant contends that guilty of murder but mentally ill is a lesser included offense of murder. Initially, we note the defendant cites no authority for the proposition that GBMI is a lesser included offense of the crime charged. The defendant contends a finding of GBMI requires a less culpable mental state than a finding of murder.

An included offense is defined as an offense which is “established by proof of the same or less than all of the facts or a less culpable mental state (or both), than that which is required to establish the commission of the offense charged.” (Ill. Rev. Stat. 1987, ch. 38, par. 2—9(a).) Section 6—2(c) of the Criminal Code of 1961 states: “A person who, at the time of the commission of a criminal offense, was not insane but was suffering from a mental illness, is not relieved of criminal responsibility for his conduct and may be found guilty but mentally ill.” (Ill. Rev. Stat. 1987, ch. 38, par. 6—2(c).) As the supreme court stated in Crews, a defendant found guilty but mentally ill is no less guilty than one who is guilty but not mentally ill. To find the defendant GBMI, the jury must find the defendant guilty of the offense charged and find the additional element of mental illness. The finding of GBMI is not a finding of a lesser included offense than the offense charged. We find no merit to the defendant’s contention that a verdict of GBMI requires a finding of a less culpable mental state. Therefore, the defendant in the instant case was not found guilty of a lesser included offense of murder.

The defendant also argues that the State failed to prove the defendant sane beyond a reasonable doubt at his first trial, and therefore cannot be given a second opportunity to prove this element. The defendant contends that because the jury found him sane by a preponderance of the evidence, the State failed to prove the defendant sane beyond a reasonable doubt. It is true that the double jeopardy clause forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding. (Burks v. United States (1978), 437 U.S. 1, 57 L. Ed. 2d 1, 98 S. Ct. 2141; People ex rel. Daley v. Crilly (1985), 108 Ill. 2d 301, 483 N.E. 2d 1236.) However, in the instant case, the defendant’s earlier conviction was reversed based on trial error, i.e., the improper jury instruction, not insufficiency of the evidence. As the United States Supreme Court stated in Burks: “In short, reversal for trial error, as distinguished from evidentiary insufficiency, does not constitute a decision to the effect that the government has failed to prove its case. As such, it implies nothing with respect to the guilt or innocence of the defendant. Rather, it is a determination that a defendant has been convicted through a judicial process which is defective in some fundamental respect, e.g., incorrect receipt or rejection of evidence, incorrect instructions, or prosecutorial misconduct.” (Emphasis added.) (Burks v. United States (1978), 437 U.S. 1, 15, 57 L. Ed. 2d 1, 12, 98 S. Ct. 2141, 2149.) The jury was improperly instructed on the burden of proof as to sanity, and its finding in no way implies that the State failed to present sufficient evidence to prove the defendant sane beyond a reasonable doubt. This court’s reversal and remand for a new trial implied nothing regarding the guilt or innocence of the defendant or the sufficiency or insufficiency of the evidence presented by the State. There is no merit to defendant’s contention that the State failed to prove him sane beyond a reasonable doubt at his first trial.

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

Affirmed.

HEIPLE, P.J., and SCOTT, J., concur.


author: JUSTICE SCOTT PRESIDING JUSTICE HEIPLE,

text:
      In re MARRIAGE OF CAROL A. SENESAC, Petitioner-Appellee, and DAVID M. SENESAC, Respondent-Appellant.
    Third District
    No. 3—89—0447
    Opinion filed April 10, 1990.
    Rehearing denied May 17, 1990.
    HEIPLE, P.J., concurring in part and dissenting in part.
    Ronald E. Boyer, of Boyer & Thompson, Ltd., of Watseka, for appellant.
    Robert W. Boyd, of Ackman, Marek, Boyd & Simutis, of Kankakee, for appellee.
   JUSTICE SCOTT

delivered the opinion of the court:

This is an appeal from an order finding the respondent husband in contempt of court for failing to pay $12,074.09 in maintenance. We affirm.

The record shows that on December 2, 1981, the trial court entered an order dissolving the marriage of the petitioner, Carol A. Senesac, and the respondent, David M. Senesac. Pursuant to a settlement agreement, the court ordered the respondent to pay the petitioner $80,000 in maintenance, payable in 121 monthly installments of $661.16.

The agreement also incorporated a property settlement wherein each party agreed that he or she would be the sole owner of any and all real estate held in that individual’s name. Under this agreement, the respondent received two funeral homes and the marital home. The petitioner received a home encumbered with a $29,000 mortgage she was to pay. The petitioner’s property was held in a land trust by the First Trust and Savings Bank of Kankakee. To protect its financial interest, the bank required the respondent to remain a beneficial owner of the property.

In September of 1985, the respondent stopped making his maintenance payments. In December of 1985, the petitioner stopped making her mortgage payments. Thereafter, in January of 1986 the bank filed a foreclosure action, and in February of 1986 the petitioner moved out of the home. At that time the respondent, without permission and on his own initiative, contracted to have over $9,000 in repairs made to the home. The respondent then tried to sell the home, listing it at $38,700. The property was eventually sold, however, at a foreclosure sale, and the respondent was required to pay a deficiency judgment of $2,724.

On October 8, 1987, the petitioner filed a rule to show cause alleging that the respondent was $14,798.09 in arrears on maintenance payments. In response, the respondent alleged that he was entitled to a setoff against the maintenance payments. He contended that the petitioner owed him money for the repairs he had made to the petitioner’s home, for the deficiency judgment entered against him following the foreclosure sale, and for his loss of equity in the house.

Following a hearing on the rule to show cause, the trial court found that the respondent was $14,798.09 in arrears on maintenance. The court also found, however, that the respondent was entitled to a $2,724 setoff against the arrearage, since he had been required to pay the deficiency judgment on the house.

On appeal, the respondent argues that the trial court erred in disallowing the full amount he requested as a setoff. Specifically, he argues that the petitioner breached an oral contract wherein she was to redeem the mortgage on her home and then buy the respondent’s equity in the home. He therefore concludes that he was entitled to the full amount of damages caused by the petitioner’s breach of their agreement.

Provisions of divorce judgments and property settlements are construed by applying the same rules governing construction of contracts. (In re Marriage of Kloster (1984), 127 Ill. App. 3d 583, 469 N.E.2d 381.) Unless an ambiguity exists, the intentions of the parties are determined solely from the language of the document. Where there is an ambiguity, extrinsic evidence is admissible to determine the parties’ intentions. (In re Estate of Bresler (1987), 159 Ill. App. 3d 535, 510 N.E.2d 1057.) Furthermore, in determining the parties’ intentions the court may consider the surrounding circumstances at the time of the agreement. In re Marriage of Whetstone (1980), 87 Ill. App. 3d 164, 409 N.E.2d 41.

In the instant case, the trial court was required to construe the following provision of the parties’ divorce agreement:

“The parties acknowledge that they have previously divided certain parcels of real property prior to the filing of this petition for Dissolution. of Marriage. Each party agrees that the other shall be the sole and exclusive owner of any and all real estate, beneficial interests in real estate trust or any other interests in real estate, which are in that party’s own name, and said interests shall be free of any right, title or interest in or on behalf of the other.”

The trial court found that the parties had orally agreed that the intent of this provision was for the petitioner to be responsible for the mortgage indebtedness on her property and to hold the respondent harmless therefrom. The court further found that the petitioner had breached this contract when the respondent was required to pay the $2,724 deficiency judgment. Therefore, the court allowed the respondent a $2,724 setoff against the maintenance arrearage. The trial court further found that this was the extent of the petitioner’s liability to the respondent under the settlement agreement and oral contract.

Based on the circumstances surrounding the property settlement, we agree with the trial court’s implicit finding that the respondent did not retain any interest in the petitioner’s property. Under the agreement, the respondent received two funeral homes and the marital home, free from any interest of the petitioner. The petitioner, in turn, received a home encumbered with a $29,000 mortgage. While the respondent remained a beneficial owner of the property, that appears to have been for the bank’s sake only. All of the other circumstances surrounding the agreement indicated that the petitioner would own the property free from any encumbrance by the respondent.

We therefore conclude that the trial court did not err in refusing to allow the remaining set-off costs requested by the respondent. The court correctly found that the respondent was not entitled to act as a self-appointed receiver to look after the property after the petitioner defaulted on the mortgage. As stated by the trial court, if the respondent wanted to modify the settlement agreement, his proper recourse was to petition the court.

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

Affirmed.

BARRY, J., concurs.

PRESIDING JUSTICE HEIPLE,

concurring in part, dissenting in part:

This case involves a dissolution of marriage agreement wherein respondent-husband was ordered to pay petitioner-wife $80,000 in maintenance installments. Additionally, respondent received two funeral homes and the marital home, and petitioner received another home subject to a $29,000 mortgage. Petitioner was solely responsible for making the mortgage payments on her property, but respondent remained a beneficial owner at the request of the bank that held the land trust. Sometime later in 1985, respondent stopped making maintenance payments, and shortly thereafter, petitioner stopped making mortgage payments. A few months later petitioner vacated the house, and the bank filed a foreclosure action.

Respondent then made $9,000 in repairs to the home and attempted to sell. Eventually, the house was sold at foreclosure, and respondent paid a deficiency judgment of $2,724. Petitioner filed suit against respondent in 1987 for back maintenance. Respondent alleged that he was entitled to offset the monies spent for repairs and the judgment. The trial court determined he was only entitled to offset the judgment amount. The respondent appeals. The issues on appeal are whether respondent is entitled to recover his “equitable interest” in the property, which he valued at $10,000, and the $9,000 in fix-up costs for the property. The majority correctly determined that respondent retained no interest in the property and, therefore, is not entitled to recover any monies representing an “equitable interest.” The majority then concludes, however, that respondent is not entitled to any repair costs either. I respectfully dissent from this portion of the order.

While petitioner took the property subject to a mortgage, and respondent had no equity in it, he remained a beneficial owner on the land trust. As such, respondent also remained liable on the mortgage in the event of default. Petitioner defaulted. Respondent was entitled to repair damage, including broken pipes, water damage, and casualty to the hot water heater and sump pump, in order to protect himself from greater liability on the mortgage in the event of default. Although respondent retained no interest in the property, the fact remains that he faced liability for any deficiency judgment resulting from the foreclosure sale. His efforts to limit that liability by preparing the home for sale do not label him a “self-appointed receiver,” but rather indicate a legitimate concern on his part. Respondent’s efforts to halt further deterioration of the property and avoid an even larger deficiency judgment were proper, and I believe he is entitled to recover his reasonable repair expenditures. Accordingly, I dissent.