author: JUSTICE HARRISON

text:
    BERNARD BATES et al., Plaintiffs-Appellants, v. BOARD OF EDUCATION, ALLENDALE COMMUNITY CONSOLIDATED SCHOOL DISTRICT NO. 17, WABASH COUNTY, Defendant-Appellee.
    Fifth District
    No. 5—88—0146
    Opinion filed May 12, 1989.

      John F. Borden, of Gosnell, Benecki, Borden & Enloe, Ltd., of Lawrenceville, for appellants.
    Richard L. Kline, of Woodcock, Kline & Kaid, P.C., of Mt. Carmel and Stephen H. Pugh and David T.B. Audley, both of Chapman & Cutler, of Chicago, for appellee.
   JUSTICE HARRISON

delivered the opinion of the court:

Plaintiffs Bernard Bates, Dorothy Bates, Bob Trimble, Dorothy Trimble, Jim E. Kelsey, Donald Smith, Jewel Smith, Fred Smith, Stanley W. Kelsey, Kenneth Shepard, Don Shepard, Francis Shepard and John Stevens appeal under Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)) from an order of the circuit court of Wabash County which dismissed, on the pleadings, count I of their complaint against defendant, the Board of Education of Allendale Community Consolidated School District No. 17. (See Ill. Rev. Stat. 1987, ch. 110, par. 2 — 615.) In that count, plaintiffs alleged that bonds issued by defendant under authority of section 17 — 2.11a of the School Code (Ill. Rev. Stat. 1987, ch. 122, par. 17 — 2.11a) were illegal because they bore an interest rate of 9.75%, which exceeded the 7% rate specified in that statute. The circuit court rejected this claim on the theory that (1) the interest rate ceiling applicable to bonds issued under section 17— 2.11a (Ill. Rev. Stat. 1987, ch. 122, par. 17 — 2.11a) should actually be determined according to the provisions of section 2 of “An Act to authorize public corporations to issue bonds, other evidences of indebtedness and tax anticipation warrants subject to interest rate limitations set forth therein” (Ill. Rev. Stat. 1987, ch. 17, par. 6602) (hereinafter the Public Corporation Interest Act), and that (2) the 9.75% rate was proper under those provisions. For the reasons which follow, we find that the circuit court’s interpretation of the statutes involved here was erroneous. We therefore reverse and remand.

Plaintiffs allege that they are all taxpayers and owners of real property in the Allendale Community Consolidated School District No. 17 in Wabash County. On June 3, 1986, plaintiffs filed a 10-count complaint for declaratory and injunctive relief to challenge certain actions taken by defendant in connection with the remodeling of an old school building and the construction of a new one. Count I of plaintiffs’ complaint alleged that defendant had issued bonds under authority of section 17 — 2.11a of the School Code (Ill. Rev. Stat. 1987, ch. 122, par. 17 — 2.11a). The purpose of these bonds was to help finance the building projects. Section 17 — 2.11a of the School Code expressly provides that bonds issued thereunder “shall bear interest at a rate not to exceed 7% per annum.” (Ill. Rev. Stat. 1987, ch. 122, par. 17 — 2.11a.) In this case, however, the bonds issued by defendant carried an interest rate of 9.75%, 2.75% greater than that allowed by the statute. Plaintiffs therefore reasoned that the bonds were illegal and that defendant should not be permitted to pay any amounts allegedly due and owing on those bonds.

Following various developments not relevant here, defendant moved to dismiss plaintiffs’ complaint in its entirety. With respect to count I, defendant argued that judgment on the pleadings should be entered in its favor because, among other things, plaintiffs had failed to allege that the interest rate on the bonds in question violated section 2 of the Public Corporation Interest Act (Ill. Rev. Stat. 1987, ch. 17, par. 6602). In defendant’s view, that statute, and not section 17— 2.11a of the School Code (Ill. Rev. Stat. 1987, ch. 122, par. 17— 2.11a), set the applicable interest rate ceiling. Following a hearing, the circuit court entered an order which, inter alia, dismissed count I. Shortly thereafter, plaintiffs filed a motion in which they requested that the court reconsider its order of dismissal, or, in the alternative, that it make an express written finding pursuant to Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)) that “there is no just reason for delaying enforcement or appeal.”

The circuit court denied plaintiffs’ motion for reconsideration. In so doing, it expressly held that the applicable interest rate ceiling on the bonds in question here was set by section 2 of the Public Corporation Interest Act (Ill. Rev. Stat. 1987, ch. 17, par. 6602) and that the 9.75% rate payable on those bonds was, as the parties had agreed, within the limits imposed by that statute. Accordingly, the court reasoned that defendant’s failure to adhere to the interest rate limit imposed by section 17 — 2.11a of the School Code (Ill. Rev. Stat. 1987, ch. 122, par. 17 — 2.11a), as alleged in count I, could not subject it to liability.

Although the circuit court denied plaintiffs’ motion to reconsider, it granted their alternative motion and made the written finding required by Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)). This appeal followed. The sole question presented for our review is whether the circuit court erred in concluding that the bonds alleged in plaintiffs’ complaint to have been issued by defendant were not subject to the interest rate limitation imposed by section 17 — 2.11a of the School Code (Ill. Rev. Stat. 1987, ch. 122, par. 17 — 2.11a). We hold that it did. We therefore reverse and remand for further proceedings.

According to plaintiffs’ complaint, defendant levied a tax on property in the district pursuant to section 17 — 2.11 of the School Code (Ill. Rev. Stat. 1987, ch. 122, par. 17 — 2.11). That statute authorizes school districts having a population of less than 500,000 inhabitants to levy a tax for the purpose of altering or reconstructing school buildings and equipment when necessary to meet fire prevention or safety regulations under certain specified conditions. When a school district has levied a tax in the amount and for the purposes specified in this statute, it may, pursuant to section 17 — 2.11a of the School Code (Ill. Rev. Stat. 1987, ch. 122, par. 17 — 2.11a) “by proper resolution borrow money for such purposes and as evidence of such indebtedness may issue bonds without referendum.” According to plaintiffs’ complaint, the bonds being challenged in this case were issued pursuant to this statutory authority. Section 17 — 2.11a of the School Code (Ill. Rev. Stat. 1987, ch. 122, par. 17 — 2.11a) expressly provides that “[s]uch bonds shall bear interest at a rate not to exceed 7% per annum.” The legislature could scarcely have made this language more direct and unambiguous. The word “shall” has been used, which is ordinarily indicative of mandatory intent. (See People v. Emrich (1986), 113 Ill. 2d 343, 350, 498 N.E.2d 1140, 1143.) Moreover, the statute provides that “[t]his Section is cumulative and constitutes complete authority for the issuance of bonds as provided in this Section notwithstanding any other statute or law to the contrary.” Ill. Rev. Stat. 1987, ch. 122, par. 17 — 2.11a.

If, as plaintiffs allege, defendant had issued bonds bearing a 9.75% interest rate, the unambiguous and mandatory provisions of section 17 — 2.11a of the School Code (Ill. Rev. Stat. 1987, ch. 122, par. 17 — 2.11a) would clearly have been violated. Count I of plaintiffs’ complaint therefore does state a cause of action and should not have been dismissed on the pleadings. The circuit court should not have permitted defendant to defeat plaintiffs’ claim by invoking section 2 of the Public Corporation Interest Act (Ill. Rev. Stat. 1987, ch. 17, par. 6602). In its current form, that statute provides:

“Notwithstanding the provisions of any other law to the contrary, any public corporation may agree or contract to pay interest on bonds or other evidences of indebtedness and tax anticipation warrants issued pursuant to law at an interest rate or rates not exceeding the rate of 9% per annum or 125% of the rate for the most recent date shown in the 20 G.O. Bonds Index of average municipal bond yields as published in the most recent issue of The Bond Buyer ***.”

The term “public corporations” as used in this statute includes “any school district.” (Ill. Rev. Stat. 1987, ch. 17, par. 6601(a).) Defendant therefore argued, and the circuit court agreed, that the broad language of the statute superseded the restrictions imposed by section 17 — 2.11a of the School Code (Ill. Rev. Stat. 1987, ch. 122, par. 17— 2.11a). We are aware of no rule of statutory construction which would support such an interpretation.

If section 2 of the Public Corporation Interest Act (Ill. Rev. Stat. 1987, ch. 17, par. 6602) were construed to apply to bonds issued under authority of section 17 — 2.11a of the School Code (Ill. Rev. Stat. 1987, ch. 122, par. 17 — 2.11a), the two statutes would be in direct conflict, and the result would be that the interest rate provision in section 17 — 2.11a of the School Code (Ill. Rev. Stat. 1987, ch. 122, par. 17 — 2.11a) would be rendered meaningless. A fundamental rule of statutory construction, however, is that we must, whenever possible, construe statutes which are in conflict or which appear repugnant to each other so as to give effect to both. Welch v. Stocks (1987), 152 Ill. App. 3d 1, 5, 503 N.E.2d 1079, 1081-82.

Reconciliation of the two statutes here is not difficult. The 7% interest rate mandated by section 17 — 2.11a of the School Code (Ill. Rev. Stat. 1987, ch. 122, par. 17 — 2.11a) applies specifically to bonds issued under the conditions described in that statute. By contrast, section 2 of the Public Corporation Interest Act (Ill. Rev. Stat. 1987, ch. 17, par. 6602) applies generally to bonds issued by “any public corporation.” The law is well settled that where, as here, “there is a specific statutory provision, and where there is a general statutory provision either in the same or in another act which relates to the same subject that the specific provision relates to, the specific provision controls over the general statute.” (Welch v. Stocks, 152 Ill. App. 3d at 5, 503 N.E.2d at 1082, quoting McCann v. Lisle-Woodridge Fire Protection District (1983), 115 Ill. App. 3d 702, 711, 450 N.E.2d 1311, 1317; see also People ex rel. Kempiners v. Draper (1986), 113 Ill. 2d 318, 321, 497 N.E.2d 1166, 1167.) This is especially true where, as in this case, the specific statutory provision was enacted after promulgation of the general statute. See Ming Kow Hah v. Stackier (1978), 66 Ill. App. 3d 947, 953, 383 N.E.2d 1264, 1268.

Defendant makes much of the fact that section 2 of the Public Corporation Interest Act indicates that interest may be paid by public corporations on bonds up to the limits it specifies “[njotwithstanding the provisions of any other law to the contrary” (Ill. Rev. Stat. 1987, ch. 17, par. 6602), and that the act specifies that its provisions “shall be cumulative and in addition to any powers or authority granted in any other laws of the State ***” (Ill. Rev. Stat. 1987, ch. 17, par. 6603). Defendant argues that these provisions must be interpreted to mean that the legislature intended to give school districts additional authority with regard to the interest rates at which they may issue bonds. We note, however, that section 17 — 2.11a of the School Code (Ill. Rev. Stat. 1987, ch. 122, par. 17 — 2.11a) itself provides not only that it is “cumulative,” but that it “constitutes complete authority for the issuance of bonds as provided in this Section notwithstanding any other statute or law to the contrary.” For defendant’s analysis to hold, this language would have to be ignored, because if section 2 of the Public Corporation Interest Act (Ill. Rev. Stat. 1987, ch. 17, par. 6602) gave additional authority regarding interest rates paid on bonds issued by school districts under the circumstances specified in section 17 — 2.11a of the School Code (Ill. Rev. Stat. 1987, ch. 122, par. 17 — 2.11a), then it could scarcely be said that the latter statute provided “complete authority” for the issuance of those bonds “notwithstanding any other statute or law to the contrary” (Ill. Rev. Stat. 1987, ch. 122, par. 17 — 2.11a).

For the foregoing reasons, we believe that the only proper way to interpret the statutes before us is to hold that where a school district issues bonds pursuant to section 17 — 2.11a of the School Code (Ill. Rev. Stat. 1987, ch. 122, par. 17 — 2.11a) the legislature intended that those bonds be subject to the specific interest rate ceiling set forth in that provision, not the general interest rate ceiling provided in section 2 of the Public Corporation Interest Act (Ill. Rev. Stat. 1987, ch. 17, par. 6602). This conclusion is further supported by the cardinal principle that in construing statutory provisions, a court should consider not only the language used but also the purposes to be attained by the law. (Canteen Corp. v. Department of Revenue (1988), 123 Ill. 2d 95, 104, 525 N.E.2d 73, 77.) A significant feature of section 17 — 2.11a of the School Code (Ill. Rev. Stat. 1987, ch. 122, par. 17 — 2.11a) is that, under certain narrowly defined circumstances, it authorizes covered school districts to issue bonds without first holding a referendum. Because voters have no opportunity to participate directly in the decision as to whether such bonds should be issued, we believe that the intention of the legislature was to provide some measure of protection to them against excessive debt obligations by limiting the amount of interest which could be paid on the bonds. If, as defendant argues, the bonds issued under section 17— 2.11a of the School Code (Ill. Rev. Stat. 1987, ch. 122, par. 17— 2.11a) were subject only to the general interest rate ceiling provided by section 2 of the Public Corporation Interest Act (Ill. Rev. Stat. 1987, ch. 17, par. 6602), then this protection would be completely vitiated.

Because bonds issued by school districts under section 17 — 2.11a (Ill. Rev. Stat. 1987, ch. 122, par. 17 — 2.11a) are subject to the 7% interest rate ceiling set forth therein, and because plaintiffs have alleged that the bonds issued under that statute here bore an interest rate which exceeded the 7% ceiling, we must conclude that the circuit court erred in dismissing on the pleadings count I of plaintiffs’ complaint. Accordingly, the circuit court’s order dismissing that count is reversed, and this cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

WELCH, P.J., and GOLDENHERSH, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE WELCH

license: Public Domain

text:
    JAMES GABLE et al., Co-Ex’rs of the Estate of Charles A. Gable, Deceased, Plaintiffs, v. JOHN REZNICK, Defendant and Third-Party Plaintiff-Appellant (James Gable et al., Third-Party Defendants-Appellees).
    Fifth District
    No. 5—87—0838
    Opinion filed May 16, 1989.
    Burroughs, Simpson, Hepler, Broom & MacDonald, of Edwardsville, for appellant.
    Roger L. Vetter, of Vassen, Vetter & Meives, P.C., of Belleville, for appellees.
   PRESIDING JUSTICE WELCH

delivered the opinion of the court:

Third-party plaintiff John Reznick appeals from the judgment of the circuit court of Fayette County entered November 12, 1987, dismissing his third-party complaint for failure to state a claim upon which relief could be granted.

On December 16, 1978, Charles A. Gable died leaving his entire estate to his only two children, James Gable and Charleen Meador. As appointed co-executors, the deceased’s two children retained, for the purpose of providing legal services, defendant and third-party plaintiff John Reznick, attorney at law. The primary asset of the estate was four parcels of property used for farming. On August 31, 1983, plaintiffs James Gable and Charleen Meador, acting in their capacity as co-executors of the estate of the deceased, Charles A. Gable, filed a complaint on behalf of the estate seeking to recover damages resulting from attorney Reznick’s negligent failure to timely file the Federal estate tax return, resulting in the loss of the special use valuation pursuant to section 2032A of the Internal Revenue Code. (26 U.S.C.S. §2032A (Law. Co-op. 1978).) Attorney Reznick admitted liability, but denied that plaintiffs suffered damages to the extent claimed.

On October 3, 1985, defendant Reznick filed a third-party complaint naming James Gable and Charleen Meador individually, seeking judgment against them for any amount he was obligated to pay them in their positions as co-executors of the estate of the deceased, Charles Gable. Attached to third-party plaintiff Reznick’s complaint was an instrument signed by James Gable and Charleen Meador which would have obligated them to pay any additional or recapturable estate tax due in the event that the land for which they sought a special valuation under section 2032A was no longer used for a purpose authorized under section 2032A. This instrument, signed by the co-executors, entitled “Consent and Agreement,” would have created a valid and binding consent agreement between the Internal Revenue Service and the co-executors; however, the instrument never became an enforceable agreement because attorney Reznick failed to timely file the petition for a special valuation, to which the “Consent and Agreement” was attached.

On October 17, 1985, third-party defendants filed a motion to strike the third-party complaint. Following a hearing, the trial court dismissed with prejudice the third-party complaint for failing to state a cause of action. This appeal followed.

The sole issue presented for our consideration is whether the trial court erred in dismissing with prejudice third-party plaintiff’s complaint. Illinois is a fact-pleading State, requiring that plaintiffs allege facts sufficient to bring a claim within the scope of a legally recognized cause of action. (People ex rel. Fahner v. Carriage Way West, Inc. (1981), 88 Ill. 2d 300, 308, 430 N.E.2d 1005, 1008-09.) The granting of a motion to strike or dismiss is within the sound discretion of the trial court. (Knox College v. Celotex Corp. (1981), 88 Ill. 2d 407, 422, 430 N.E.2d 976, 983.) We are unable to find that the trial court abused its discretion in the present case.

Notwithstanding that the “Consent and Agreement” signed by the third-party defendants and attached to the third-party complaint never became valid and binding, attorney Reznick relied on this instrument in his third-party complaint, and relies on it in the current appeal. According to attorney Reznick, the consent agreement, although never becoming an enforceable contract, should be considered a basis upon which he may subrogate himself to the rights of the Internal Revenue Service; therefore, his complaint should not have been dismissed.

Subrogation requires that the subrogor, here the Internal Revenue Service, possess an enforceable right against a third party, here the co-executors of the Gable estate, and that the subrogee, here attorney Reznick, seeks to enforce the subrogor’s right. (Continental Casualty Co. v. Polk Brothers, Inc. (1983), 120 Ill. App. 3d 395, 457 N.E.2d 1271.) A subrogee has no greater rights than the subrogor and can enforce only the rights of the subrogor. (Blume v. Evans Fur Co. (1984), 126 Ill. App. 3d 52, 466 N.E.2d 1366.) In the present case, the Internal Revenue Service does not have the rights to which attorney Reznick seeks to subrogate himself; thus, there can be no subrogation.

The right to which attorney Reznick wishes to be subrogated is the right which would have been conferred upon the Internal Revenue Service had attorney Reznick not been negligent in filing the consent form. This instrument would have obligated the co-executors to assume liability for any additional or recapturable estate taxes under the Internal Revenue Code, section 2032A(c), in the event of early disposition of the specially valued property or early cessation of the qualified use. As a result of attorney Reznick’s failure to file this instrument, the co-executors assumed no liability for any additional or recapturable estate taxes under section 2032A, and therefore, the Internal Revenue Service obtained no enforceable rights which attorney Reznick might subrogate. In fact, because of attorney Reznick’s negligence, the co-executors were deprived of their right to elect the alternate valuation of the estate property for inheritance tax purposes. Because they were deprived of this right, it follows that there could be no additional or recapturable taxes arising from a subsequent forfeiture of such a nonexistent right. In sum, the Internal Revenue Service did not have an enforceable right under section 2032A to which attorney Reznick could subrogate himself.

Attorney Reznick argues further that he has an equitable interest in subrogating himself to a right the Internal Revenue Service would have obtained had the alternate valuation and the attached consent agreement been timely filed. In effect, this interpretation would grant attorney Reznick a negative covenant obligating the co-executors to continue farming the inherited property for at least 15 years or pay him an amount equal to the recapturable inheritance tax which could have been imposed pursuant to section 2032A for their failure to continue farming for a period of at least 15 years. Such a negative covenant cannot be granted because, due to attorney Reznick’s negligence, the co-executors had no legal obligation to continue farming the property. Nor may such a negative covenant be contrived based on other circumstances existing between the parties. Moreover, even were we to apply subrogation rights liberally, such that based on principles of equity attorney Reznick would be entitled to subrogate himself to a right the Internal Revenue Service would have had were it not for his own negligence, we would still find that he is not entitled to subrogate because subrogation is allowed only to innocent parties. (Coffey v. ABC Liquor Stores, Inc. (1957), 13 Ill. App. 2d 510, 142 N.E.2d 705.) Therefore, we find that the trial court properly dismissed attorney Reznick’s third-party complaint for failure to state a cause of action upon which relief may have been granted.

For the foregoing reasons, the judgment of the circuit court of Fayette County dismissing the third-party complaint is hereby affirmed.

Affirmed.

HARRISON and HOWERTON, JJ., concur.


author: JUSTICE RARICK

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHARLES BUDDY SULLIVAN, Defendant-Appellant.
    Fifth District
    No. 5—87—0361
    Opinion filed May 18, 1989.

      Daniel M. Kirwan and Edwin J. Anderson, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Charles Garnati, State’s Attorney, of Marion (Kenneth R. Boyle, Stephen E. Norris, and Gerry R. Arnold, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE RARICK

delivered the opinion of the court:

Defendant, Charles “Buddy” Sullivan, was convicted after a jury trial of the murder of Ronald Hicks, defendant’s next door neighbor and best friend, and sentenced by the circuit court of Williamson County to natural life imprisonment.

On July 2, 1985, Hicks disappeared. His body was found four months later next to a pond near an abandoned farmhouse in Williamson County. Hicks apparently had been shot to death. His wallet was discovered some distance from the body. Eventually the police learned defendant and his girlfriend, Myla Jean Ring, were connected with the murder.

According to Ring, she and defendant had been dating for some time prior to Hicks’ murder. Ring, then age 18, and defendant, 45, developed-a rather intense sexual relationship. Ring claimed defendant was very demanding, violent and jealous, but she loved him and wanted to marry him. Defendant, however, did not want to make such a commitment, having recently been divorced.

At one point in the relationship, Ring went to Florida with some of her friends. Upon returning, Ring found defendant to be very angry and distant with her. She decided she would try to win defendant back by making him jealous. She asked Hicks out for a date and had sexual contact with him on May 28, 1985. Ring told defendant the next day about her date with Hicks. After defendant learned from Hicks the extent of his and Ring’s encounter, defendant became very depressed. Ring claimed defendant eventually determined he had to get rid of Hicks because of what he had done with his girlfriend. Defendant devised an elaborate plan whereby Ring would lure Hicks out to a deserted farmhouse and then kill him. The plan went according to schedule. Ring enticed Hicks out to the farmhouse on the pretext of repeating their earlier sexual encounter. As they were walking around, defendant appeared. They explained to Hicks that Ring was needed back at defendant’s business. As the three of them began walking back to their vehicles, Ring claimed she needed to relieve herself. She asked defendant to hold her purse, in which they previously had hidden a gun. Defendant took out the gun and shot Hicks in the back. Hicks began running, while pleading for his life. Defendant followed him. Ring saw Hicks fall, heard more shots, and then proceeded back to Hicks’ truck. She donned a wig and glasses and drove the truck back to town. After dropping it off, she hid in a ditch beside the highway and waited for defendant. Eventually, defendant picked her up and took the wig, glasses and Ring’s clothes to bum. Defendant and Ring continued to date, but defendant still refused to marry her. She eventually decided to get away from defendant and began dating his brother. Defendant again became very jealous and tried to stop them from seeing each other. Defendant met with Ring’s mother and told her that her daughter had killed Hicks. Ring’s mother informed the police of defendant’s story, and Ring turned herself in a few days later. She originally told the police she shot Hicks, but later informed them defendant killed Hicks while she watched. She told the police she originally lied because defendant asked her to do so and had finally promised to marry her. When she later learned defendant was not being honest with her, she decided to tell the police the truth.

Defendant’s version naturally differed from that of Ring’s. He denied any participation in the killing whatsoever. According to defendant, he was Ring’s “sex slave.” He learned about Hicks’ murder the day after it occurred and kept quiet because of her threats to implicate him. Defendant contended Ring killed Hicks because he had raped her. Defendant also claimed he was not bothered by Ring’s earlier date with Hicks because he knew she was very active sexually with many men. Defendant also stated he called Ring’s mother out of fear for his brother’s safety. The jury chose to believe Ring’s version and found defendant guilty of murder. Defendant appeals both his conviction and sentence. We affirm.

Defendant argues on appeal that he was not proved guilty beyond a reasonable doubt of Hicks’ murder because Ring’s testimony did not create an abiding conviction of his guilt. Defendant believes Ring’s testimony was not credible, as it served to exculpate her of guilt for a murder she already confessed to committing. We disagree.

The uncorroborated testimony of an accomplice is sufficient to sustain a conviction if such testimony satisfies the jury of a defendant’s guilt beyond a reasonable doubt. (See People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, 277; People v. Newell (1984), 103 Ill. 2d 465, 469-70, 469 N.E.2d 1375, 1377.) While it is true that in general such testimony may be fraught with serious weaknesses and should be accepted only with the utmost caution and suspicion (see Newell, 103 Ill. 2d at 470, 469 N.E.2d at 1377; People v. Hermens (1955), 5 Ill. 2d 277, 285, 125 N.E.2d 500, 504-05), defendant refuses to acknowledge that the accomplice testimony in this instance is corroborated. Material corroboration under such circumstances is entitled to considerable weight. Hermens, 5 Ill. 2d at 286, 125 N.E.2d at 505.

The evidence revealed that defendant exercised considerable control over Ring. She cooked and cleaned for him, took care of his children when they visited, helped out with defendant’s business, and paid for his food and beer with the money her parents gave her. Over time defendant became very jealous and possessive of Ring. One instance when he thought Ring was going to meet another man, defendant smashed her fingers on the window sill and on another occasion twisted her arm to such an extent that she required medical attention. Defendant’s ex-wife also testified to defendant’s jealous and somewhat violent nature.

Shortly after Ring was arrested and had confessed to the murder, she agreed to reenact the crime on video tape. Ring was not able to show the officers where Hicks fell. The officers had to point out for her where the body was found, and for the first time Ring learned of the existence of a pond near the scene. The pond was not visible from the point at which she stopped to go to the bathroom because of a small crest in the field. In addition, Ring could not remember the number of times she shot Hicks, and she also told them she did not remove his wallet from his pants. Ring seemed sure of what she had done up to the point of stopping to feign going to the bathroom and from there on appeared to be groping.

The corroborating evidence does not end here. Upon searching defendant’s house, the police confiscated a footlocker which contained the wig and eyeglasses Ring allegedly wore while driving Hicks’ truck back to town. A .22 caliber bullet similar to the type used to kill Hicks was also found at the bottom of the footlocker. In one of defendant’s notebooks, next to the date Ring went out with Hicks, was written “Black Day.” And, drafts of letters reveal defendant’s jealousy toward Ring dating his brother. In addition, Ring’s personal property bag at the jail contained a set of matching wedding and engagement rings. One of Ring’s cellmates also testified she overheard defendant trying to convince Ring to lie for him. The story defendant wished Ring to tell was the same one he told the police.

It is also important to note that Ring’s second version of the events remained constant. And, the relating of this second version occurred approximately V-k months prior to her plea agreement. Finally, Ring had no motive for killing Hicks.

Viewing all of the evidence in the light most favorable to the prosecution, it is more than sufficient to support the jury’s verdict. It is not our function to retry defendant. (See Collins, 106 Ill. 2d at 261, 478 N.E.2d at 277.) The resolution of defendant’s guilt or innocence depended primarily on the credibility of the witnesses and the weight given their testimony. It was for the jury to resolve any conflicts in the evidence (Collins, 106 Ill. 2d at 262, 478 N.E.2d at 277), and the jury obviously chose to believe Ring’s account of the crime. The jury simply was not required to believe defendant’s exculpatory testimony. See People v. Floyd (1987), 160 Ill. App. 3d 80, 85, 512 N.E.2d 1378, 1382.

We note the jury was fully cognizant of the infirmities in Ring’s testimony and of the agreement she made in exchange for her testimony. The jury was aware of a possible motive for implicating defendant in order to save herself and accordingly was instructed that accomplice testimony should be viewed with suspicion. The jury still chose to believe Ring, and after reviewing the record, we cannot say the jury’s conclusion is unreasonable. See Collins, 106 Ill. 2d at 262, 478 N.E.2d at 277. Cf. People v. Williams (1976), 65 Ill. 2d 258, 357 N.E.2d 525; People v. Savory (1978), 62 Ill. App. 3d 750, 379 N.E.2d 372.

Defendant also argues on appeal that his sentence must be reversed because the trial court improperly considered his post-crime behavior toward Hicks’ family and ignored his potential for rehabilitation. Again we disagree.

The determination and imposition of any sentence is a matter involving considerable judicial discretion, and absent an abuse of that discretion, we will not alter the sentence upon review. (People v. La Pointe (1981), 88 Ill. 2d 482, 492, 431 N.E.2d 344, 348; People v. Perruquet (1977), 68 Ill. 2d 149, 153, 368 N.E.2d 882, 883.) The trial judge, having had the opportunity to evaluate all of the facts and observe the defendant throughout the course of his trial and sentencing hearing, naturally is in a better position to determine the punishment to be imposed based upon the particular circumstances of that defendant’s case. (Perruquet, 68 Ill. 2d at 154, 368 N.E.2d at 884.) Such a judgment depends upon many factors, including the defendant’s credibility, demeanor, general moral character, mentality, social environment, habits and age. Perruquet, 68 Ill. 2d at 154, 368 N.E.2d at 884.

Turning to defendant’s sentence, the trial court may impose a sentence of natural life imprisonment for murder if the offense was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty (see Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 8— 1(a)(1)(b)). The evidence here clearly established such behavior. Defendant carried out a premeditated, cold-blooded murder and placed most of the risk on Ring. He shot Hicks in the back several times while ignoring all pleas for mercy. After the murder, he maintained contact with Hicks’ family and said nothing. Only when Ring began dating his brother, approximately one year later, did defendant reveal that he had information concerning the murder. The murder was both cruel and wanton, and defendant exhibited no remorse or pity whatsoever. A lack of “penitent spirit” is but one factor a trial court properly may consider in determining wanton cruelty. (See People v. Sowinski (1986), 148 Ill. App. 3d 231, 248, 498 N.E.2d 650, 660; People v. Nester (1984), 123 Ill. App. 3d 501, 506, 462 N.E.2d 1011, 1015.) The trial court must consider all factors and all facts surrounding the incident in question in evaluating the heinousness of a defendant’s conduct. See Nester, 123 Ill. App. 3d at 504-05, 462 N.E.2d at 1014.

These same facts and factors also support the trial court’s conclusion that defendant exhibited little, if any, potential for rehabilitation. While defendant has attained a high degree of education and has little prior history of criminal activity, he also exhibited repeatedly a very jealous, violent nature. Furthermore, defendant’s numerous writings were bizzare and revealed no remorse. The trial court concluded that if the situation were to arise again, defendant in all probability would kill in cold blood again. We find no basis in the record to dispute this conclusion.

It is not our function to serve as a sentencing court and substitute our judgment for that of the trial court merely because we might have balanced the appropriate factors differently. (People v. Cox (1980), 82 Ill. 2d 268, 280, 412 N.E.2d 541, 547; Perruquet, 68 Ill. 2d at 156, 368 N.E.2d at 885.) Consequently, we find no error in sentencing defendant to natural life. Floyd, 160 Ill. App. 3d at 88, 512 N.E.2d at 1384; Sowinski, 148 Ill. App. 3d at 248, 498 N.E.2d at 660; People v. Barkauskas (1986), 147 Ill. App. 3d 360, 373, 497 N.E.2d 1183, 1192.

For the reasons given above, we affirm the judgment of the circuit court of Williamson County.

Affirmed.

CHAPMAN and GOLDENHERSH, JJ., concur.


author: PRESIDING JUSTICE WELCH JUSTICE HARRISON,

text:
    RICHARD D. PUCKETT, Plaintiff-Appellant, v. EMPIRE STOVE COMPANY, Defendant-Appellee and Counterdefendant (Honore Ghibaudy et al., Defendants and Counterplaintiffs and Third-Party Plaintiffs-Appellants; International Telephone and Telegraph Company, Third-Party Defendant-Appellee; Getty Oil Company, Third-Party Defendant).
    Fifth District
    No. 5—87—0372
    Opinion filed May 19, 1989.

      HARRISON, J., specially concurring.
    Thomas E. Jones, Anthony L. Martin, and John E. Sabo, all of Walker & Williams, P.C., of Belleville, for appellant.
    Churchill & McDonnell, of Belleville (Allen D. Churchill and Daniel G. Donahue, of counsel), for appellee International Telephone & Telegraph Company.
    Cornelius Thomas Ducey, Jr., of Ducey, Feder & Ducey, Ltd., of Belleville, for appellee Empire Stove Company.
   PRESIDING JUSTICE WELCH

delivered the opinion of the court:

Plaintiff, Richard D. Puckett, brought an action in the circuit court of St. Clair County to recover for personal injuries incurred in a fire which broke out in the house he was renting from defendants, Honoré Ghibaudy and Florence Ghibaudy (hereinafter Ghibaudys). Plaintiff alleged that the fire was caused by the defective condition of a floor furnace manufactured by defendant Empire Stove Company and installed by defendant Honoré Ghibaudy.

Count I of plaintiff’s complaint was directed to Empire Stove Company (hereinafter referred to as Empire) and alleged, in pertinent part, that at the time the floor furnace left the control of Empire it was in a defective and unreasonably dangerous condition in that the gas valve component contained a “jumper” which short-circuited and rendered inoperable the high temperature limit control switches, and further that, despite the fact that Empire knew or should have known that “jumpers” may be found on the valve supplied with the furnace or on replacement valves, the furnace failed to have affixed to it adequate warnings to the effect that “jumpers” should not be used on the gas valve of the furnace. Count II of plaintiff’s complaint was directed to the Ghibaudys and alleged that they had negligently installed the floor furnace with a “jumper” attached to the gas valve component which short circuited and rendered inoperable the high temperature limit control switches on the furnace.

Ghibaudys filed a third-party complaint for contribution against the manufacturer of the gas valve, International Telephone and Telegraph Company (hereinafter referred to as ITT), alleging that at the time the gas valve left the control of ITT, it was defective and unreasonably dangerous in that it was wired so as to circumvent a high temperature limit control switch and that it provided no warning of the danger involved. Plaintiff did not sue ITT.

The furnace in question was situated in the crawl space of the home and radiated heat upward through a grate-covered hole cut in the floor. The furnace was designed for such use. The furnace contained a safety device called a limit switch which was designed to shut the furnace off in the event the grate was covered and heat built up in the furnace to a dangerous level. The furnace utilized gas and had a valve which controlled the flow of gas into the burner assembly of the furnace. This valve contained four electric terminals to control operation of the valve. Terminals one and two were connected to the generator, which supplied electricity for operation of the valve and thermostat. Terminals three and four were connected to the thermostat, which was placed on a wall in the house. Terminal three was a dead terminal in that it had nothing connected to it from the inside of the valve. It received its electrical power from terminal two. The wires from the limit switch were connected to terminal two. The electric terminals worked in a series, so that if electricity was interrupted at any point, the terminals thereafter would receive no electricity.

When the thermostat in the house demanded more heat, it closed the circuit to terminal four, which caused the gas valve to open, allowing gas into the burner assembly. If the temperature inside the furnace reached a certain level, the limit switch would open, stopping the electric current from flowing from terminal two to terminals three and four, thereby closing the gas valve and shutting off the furnace. However, a problem arises when a metal “jumper” clip is installed between terminals two and three. This allows electricity to flow between these two terminals, circumventing the limit switch and allowing the gas valve to remain open, supplying gas to the burner and overriding the command of the limit switch to turn the gas valve off.

The furnace was designed for, and manufactured with, a gas valve manufactured by ITT and designated a B67RB88 valve. This valve was manufactured by ITT specifically for Empire. The B67RB88 valve is a right-angle or 90° valve, rather than a straight through or 180° valve. Its inlet is one-half inch in diameter, and its outlet is three-eighths inch in diameter. The furnace was designed and manufactured to accommodate this size valve. The electric terminals are raised and at 90° to the valve axis. This valve was manufactured by ITT and sold to Empire without a jumper attached to its terminals or included therewith.

The gas valve found on the furnace after the fire had also been manufactured by ITT, but was designated a B67RA28 valve. These valves were manufactured especially for and sold exclusively to two companies, neither of which was Empire. The B67RA28 valve is a straight through or 180° valve with a one-half inch inlet and a one-half inch outlet. The B67RA28 valve provides for the pilot downstream, whereas the B67RB88 valve provides that the pilot be located on the upstream or inlet side of the valve. The electric terminals on the B67RA28 were flat and along the valve axis, rather than raised and at 90° to the valve axis, as in the B67RB88 valve. The B67RA28 valve is normally sold with a jumper attached to it. The valve could not be attached to the furnace in question without a bushing, and the valve found on the furnace after the fire had a bushing on the outlet to decrease its diameter from one-half inch to three-eights inch. There was also a flared elbow attached to the valve found on the furnace after the fire to make it a right-angle valve.

At the time the furnace was manufactured, Empire did not carry the bushing, elbow or flaring tool to construct or attach the valve found on the furnace. Further, a straight through valve could not have been placed on the furnace by Empire when the furnace was assembled because it could not have gone through the testing stage of the assembly process. Finally, Empire never ordered or received a straight through valve from ITT.

When sold, the furnace had affixed to it just above the gas valve a wiring diagram showing how to connect wires to the terminals on the valve. The wiring diagram does not show a jumper clip, but does not warn that a jumper clip should not be used. The diagram does, however, state, “must be wired as shown above.” The furnace was sold with an installer’s manual, which states, “Check combination valve terminals for shorts, or a jumper between the two inside terminals— jumper should not be there when temperature limit controls are used.” This statement is contained in a section of the manual which discusses remedying problems with the furnace. ITT supplies an instruction sheet with its gas valves which states, “Auxiliary controls (if used remove jumper).”

The furnace had been installed in plaintiff’s home by defendant Honoré Ghibaudy in the summer of 1977. The furnace had been originally manufactured in June 1974 and had been first sold to James Kraft in September 1974. The Krafts used the furnace in their home without problem until April or May 1977. Ghibaudy received the furnace from the Krafts and placed it in his rental house. He did not alter, repair or change the valve which was on the furnace, and the furnace had worked satisfactorily up to the date of the fire.

On the night of the fire, October 6, 1979, plaintiff placed two large cardboard boxes on top of the furnace grate to keep his dogs from entering the living room of the house. Plaintiff did not think the pilot light to the furnace was lit and did not think the furnace would come on. Later that night, plaintiff woke up to discover a fire in the area of the cardboard boxes. Plaintiff broke a window to escape, which allowed oxygen into the room and caused flames to leap to the open window where plaintiff was standing. Plaintiff was severely burned.

The case was tried to a jury in September and October 1986. At the close of all the evidence, Empire moved to strike certain allegations of plaintiff’s complaint, including the allegation that the furnace was defective and unreasonably dangerous for failure to warn that a jumper should not be used on the gas valve. The court found as a matter of law that Empire had no duty to warn and struck that allegation of plaintiff’s complaint. Plaintiff’s first argument on appeal is that the trial court erred in so doing.

It is well settled that a failure to warn of a product’s dangerous propensities may serve as the basis for holding the manufacturer or seller strictly liable in tort. (Woodill v. Parke Davis & Co. (1980), 79 Ill. 2d 26, 29, 402 N.E.2d 194, 196.) The duty to warn, however, arises only where the manufacturer or seller knows or should know of the danger and where unequal knowledge exists on the part of the consumer/user. (Illinois State Trust Co. v. Walker Manufacturing Co. (1979), 73 Ill. App. 3d 585, 589, 392 N.E.2d 70, 73.) In order to find that the manufacturer should have known of the danger inherent in the product, it must be objectively reasonable to expect the user of the product to be injured in the manner in which the plaintiff was injured. (Renfro v. Allied Industrial Equipment Corp. (1987), 155 Ill. App. 3d 140, 158, 507 N.E.2d 1213, 1228.) It is not enough that the injury was merely conceivable. (Genaust v. Illinois Power Co. (1976), 62 Ill. 2d 456, 466, 343 N.E.2d 465, 471.) Whether the plaintiff’s injury was foreseeable by the manufacturer, and whether a duty to warn existed, are questions of law for the court to resolve, rather than questions of fact. (Genaust, 62 Ill. 2d at 466, 343 N.E.2d at 471.) Further, there is no duty to warn where the manufacturer and the user have equal knowledge of the danger (Peterson v. B/W Controls, Inc. (1977), 50 Ill. App. 3d 1026, 1029, 366 N.E.2d 144, 147), or where the danger is readily apparent. Curry v. Louis Allis Co. (1981), 100 Ill. App. 3d 910, 916, 427 N.E.2d 254, 258.

Plaintiff argues that Empire had a duty to warn users of the furnace of the danger presented by the presence of a jumper on the gas valve because it had actual knowledge of the danger. Empire counters that there was no duty to warn because, although it knew of the danger presented by the presence of a jumper on the gas valve, it was not objectively reasonable to expect that the B67RB88 gas valve originally installed on the furnace by Empire would be replaced by a B67RA28 gas valve containing a jumper, and it therefore was not foreseeable that the user of the furnace would be injured in the manner in which plaintiff was injured. Empire also argues that, because there was no evidence as to who installed the B67RA28 gas valve on the furnace, there was no evidence as to whether that installer had unequal knowledge of the danger relative to Empire.

We find Empire’s argument persuasive and affirm the trial court’s order striking that paragraph of plaintiff’s complaint alleging strict liability for Empire’s failure to warn. The question is not whether Empire knew or should have known that a jumper on the gas valve would circumvent the high temperature limit control switches, but whether Empire knew or should have known that someone would replace its original gas valve with a different gas valve containing a jumper. We do not think it was objectively reasonably foreseeable by Empire that someone would remove the B67RB88 gas valve from the furnace and replace it with a B67RA28 gas valve with a jumper attached. The furnace was specifically designed to have a right-angle gas valve. In order to replace that valve with a B67RA28 valve, it was necessary to modify the design of the furnace and attach a bushing to accommodate the different size outlet of the B67RA28 valve. There was no evidence that this had ever occurred before or that Empire could have reasonably anticipated that it would occur. The B67RB88 valve and the B67RA28 valve clearly are not interchangeable. The B67RA28 valve was neither designed nor intended to be a replacement valve for the B67RB88 valve. The floor furnace was not designed to receive the B67RA28 valve, nor was the B67RA28 valve designed to be installed on this particular floor furnace. In fact, the B67RB88 valve and the B67RA28 valve are not even similar. Certainly they are not so similar that Empire should have known that the B67RB88 valve without a jumper would be replaced with the B67RA28 valve with a jumper. The trial court properly found, as a matter of law, that Empire had no duty to warn of the danger presented by a jumper on the gas valve.

The second argument raised by plaintiff is that the trial court erred in finding as a matter of law that a warning of the danger inherent in having a jumper on the gas valve was present on the furnace. During argument on Empire’s motion to strike the allegation of plaintiff’s complaint having to do with a duty to warn, the trial court stated,

“I would state this maybe for the record. I think that there is a warning in the diagram or in the schematic and the issue is does that adequately communicate is basically what it is [sic]. Does that communicate to the users of the product[?] And that would be a question, you know.”

Later in the proceedings, the trial court ruled as a matter of law that Empire had no duty to warn of the danger of placing a jumper on the gas valve.

Plaintiff argues that the above statement indicates that the trial court found, as a matter of law, that a warning was present and that this question was one more appropriately left to the jury. However, whether a warning was present and whether it was adequate were not properly questions for the jury in this case, where the trial court properly had determined as a matter of law that Empire had no duty to warn.

The next argument raised by plaintiff is that the trial court erred in striking from plaintiff’s complaint the allegation that the furnace was defective and unreasonably dangerous because it contained a nontransparent cover over the pilot light which prevented users from knowing whether the furnace was operational. The furnace had a pilot light which was covered with a clear lens, permitting the user to see if the pilot light was lit. However, the clear lens was covered with a movable solid metal lens to protect the clear lens and to prevent the glow from the pilot light from being seen. The solid lens could be moved to allow viewing of the pilot light. Plaintiff argues that the pilot light cover prevented him from knowing the location of the pilot light and whether it was lit, and argues that “there is a strong probability that the fire would not have occurred had the plaintiff been able to see that the pilot light was lit.” Plaintiff implies in his argument that he would not have placed the cardboard boxes on the grate had he known the pilot light was lit and the furnace might come on.

Plaintiff presented no evidence in support of the allegation that the furnace was defective and unreasonably dangerous because it contained a nontransparent cover over the pilot light. In order to succeed on a theory of strict liability, a plaintiff must prove that the injury resulted from a condition of the product and that the condition was an unreasonably dangerous one. (Walker v. Maxwell City, Inc. (1983), 117 Ill. App. 3d 571, 575, 453 N.E.2d 917, 921.) No witness, expert or otherwise, testified that the pilot light cover made the furnace unreasonably dangerous or that the pilot light cover contributed in any way to the fire.

Plaintiff’s argument that he probably would not have placed the boxes on the grate had he known the pilot light was lit is not sufficient to demonstrate that the furnace was defective and unreasonably dangerous. A product is unreasonably dangerous only when it is dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics. (Palmer v. Avco Distributing Corp. (1980), 82 Ill. 2d 211, 216, 412 N.E.2d 959, 962.) Plaintiff presented insufficient evidence that the movable pilot light cover made the furnace defective and unreasonably dangerous, or that it contributed in any way to his injuries. The trial court properly struck this allegation of plaintiff’s complaint.

Plaintiff also argues that the trial court erred in striking from his complaint allegations that there was a jumper on the gas valve of the furnace which had prevented the high temperature limit switch from performing its safety function when the temperature of the furnace became unreasonably high. Plaintiff argues that the jury could have inferred from the evidence that Empire had installed the B67RA28 gas valve which was attached to the furnace after the fire and which contained the jumper, and that this valve caused plaintiff’s injuries. We fail to understand plaintiff’s argument in this regard. This is precisely the allegation of plaintiff’s complaint upon which the case was submitted to the jury. The jury was instructed as follows:

“As to the Plaintiff’s claim against Empire Stove Company, the Plaintiff claims that he was injured as a result of Empire Stove floor furnace that there existed in the floor furnace at the time it left the control of the Defendant a condition which made the floor furnace unreasonably dangerous in that the gas valve component contained a jumper which short-circuited and rendered inoperable the high limit control switches.
The Plaintiff further claims that the foregoing was a proximate cause of his injury.
The Defendant denies the claimed condition existed in the floor furnace at the time the floor furnace left its control. Defendant denies that the Plaintiff sustained damages to the extent claimed.”

The jury found for the defendant, Empire, thereby finding that at the time the furnace left Empire’s control, the gas valve did not contain a jumper.

The trial court did, however, strike several other allegations of plaintiff’s complaint: that the furnace failed to have an operational high temperature limit switch; that the presence of the jumper on the gas valve effectively eliminated the high temperature limit switch, which was required by law; and that the furnace was wired in such a manner that it prevented the high temperature limit switch from functioning. The first of these allegations was not supported by the evidence, which clearly showed that the high temperature limit switch did operate properly in the absence of a jumper on the gas valve. The other allegations are substantially the same as the allegation upon which the case was submitted to the jury. The trial court did not err in striking these allegations from plaintiff’s complaint.

The next argument raised by plaintiff is that the trial court erred in directing a verdict in favor of the third-party defendant, ITT, and against the third-party plaintiffs, Honoré and Florence Ghibaudy. Plaintiff brings this appeal pursuant to an agreement entered into with the Ghibaudys at the conclusion of the trial which assigned to plaintiff the Ghibaudys’ cause of action for contribution against ITT.

Plaintiff argues that the trial court erred in directing a verdict in favor of ITT because the jury could have inferred from all the evidence that ITT placed the jumper on the B67RA28 gas valve which was found on the furnace after the fire, that ITT knew its B67RA28 gas valves were being installed on floor furnaces, that ITT knew of the danger of installing a gas valve with a jumper on a furnace which contained high temperature limit controls, that ITT had a duty to warn of the danger and that the warning it gave in its instruction manual was inadequate. Plaintiff argues that the question of the adequacy of the warning should have been left to the jury. Plaintiff further argues that ITT had a duty to place a warning directly on the gas valve and also to ship the valve with the jumper included but not attached.

ITT responds that plaintiff is not a proper party to prosecute this appeal because plaintiff never brought suit against ITT directly, the statute of limitations for bringing such an action has expired, and the assignment to plaintiff of the Ghibaudys’ cause of action for contribution against ITT is void as against public policy. ITT also argues that the Ghibaudys had no right of contribution to assign to plaintiff and that plaintiff received nothing by the assignment. Finally, ITT argues that it had no duty to warn of the danger of using a jumper on a furnace with a high temperature limit switch because it was not foreseeable that its B67RA28 gas valve would be installed on the Empire floor furnace involved in this case and because the installer of the valve andI or furnace had knowledge of the danger equal to that of ITT.

ITT argues that the assignment of Ghibaudys’ right of action for contribution against ITT is void as against public policy because it encourages litigation which otherwise would not be brought. To allow the assignment in this case, ITT argues, would constitute approval of what was known at common law as champerty or maintenance. We disagree.

Black’s Law Dictionary defines “champerty” as “[a] bargain by a stranger with a party to a suit, by which such third person undertakes to carry on the litigation at his own cost and risk, in consideration of receiving, if successful, a part of the proceeds or subject sought to be recovered.” (Black’s Law Dictionary 169 (abridged 5th ed. 1983).) “Maintenance” is defined as “maintaining, supporting, or promoting the litigation of another.” (Black’s Law Dictionary 169 (abridged 5th ed. 1983).) Champerty and maintenance have been disapproved by the courts as against public policy because a litigious person could harass and annoy others if allowed to purchase claims for pain and suffering and pursue the claims in court as an assignee. (Town & Country Bank v. Country Mutual Insurance Co. (1984), 121 Ill. App. 3d 216, 218, 459 N.E.2d 639, 640.) However, plaintiff in the instant case is no stranger to the action between third-party plaintiffs Ghibaudys and third-party defendant ITT. Nor is plaintiff promoting the litigation of another which otherwise might not be maintained. Instead, plaintiff has a direct and immediate interest in Ghibaudys’ right of action for contribution ■ against ITT. Allowing Ghibaudys to assign that cause of action to plaintiff is not violative of "any public policy of which we are aware." ;

That plaintiff cho.se not to bring suit directly against ITT, and may now be barred by the statute of limitations from doing so, does not affect our decision in this regard. The intent of the contribution statute was to reach anyone who is culpable, regardless of whether they have been immunized from a direct tort action by some special defense or privilege. (Scott & Fetzer Co. v. Montgomery Ward & Co. (1984), 129 Ill. App. 3d 1011, 1024, 473 N.E.2d 421, 431, aff’d (1986), 112 Ill. 2d 378, 493 N.E.2d 1022.) Thus, plaintiff’s inability to maintain a direct tort action against ITT does not protect ITT from Ghibaudys’ third-party contribution action. Plaintiff still has a direct and immediate interest in Ghibaudys’ third-party action against ITT despite his inability to maintain a direct action against ITT. We see no reason to find Ghibaudys’ assignment of that action to plaintiff void.

ITT also argues that plaintiff has no standing to prosecute this appeal because Ghibaudys had no cause of action against ITT to assign, and plaintiff therefore gained nothing by the assignment. The assignment provides, in relevant part, that the Ghibaudys agree to assign their cause of action for contribution against ITT to plaintiff, and in return, plaintiff

“agrees to refrain from executing upon Florence Ghibaudy and Honoré Ghibaudy, and their insurance carrier, Western Casualty and Surety Company, in an amount in excess of the aforesaid $50,000.00 and taxable costs of $1,348.22 and the amount of any judgment for contribution which is obtained against International Telephone & Telegraph Company.”

The Contribution Among Joint Tortfeasors Act provides that any tortfeasor who settles with a claimant pursuant to a release or covenant not to sue or not to enforce judgment is not entitled to recover contribution from another tortfeasor whose liability is not extinguished by the settlement. (Ill. Rev. Stat. 1987, ch. 70, par. 302(e).) ITT argues that, because the liability of ITT was not extinguished by the settlement between plaintiff and Ghibaudys, Ghibaudys have no right to recover contribution from ITT. Therefore, ITT argues, plaintiff received nothing by the assignment and has no standing to prosecute this appeal.

Plaintiff responds that because ITT had no liability to plaintiff in any case due to the running of the statute of limitations, it was not necessary to extinguish ITT’s liability in the release in order to preserve Ghibaudys’ right to recover contribution from ITT. This precise question has been disposed of by this court adversely to plaintiff. In Pearson Brothers Co. v. Allen (1985), 131 Ill. App. 3d 699, 476 N.E.2d 73, this court held that the joint tortfeasor’s liability must be extinguished by the settlement. The agreement entered into between plaintiff and Ghibaudys was an agreement not to enforce judgment which did not extinguish ITT’s liability, but was entered into for the express purpose of preserving ITT’s liability. Therefore, upon execution of the agreement, Ghibaudys lost their right to recover contribution from ITT. Because plaintiff received nothing by the assignment, he has no standing to prosecute this appeal with respect to ITT.

In any event, the trial court properly directed a verdict in favor of ITT and against third-party plaintiffs for the same reasons we found that it properly struck the allegations of plaintiff’s complaint with respect to Empire’s duty to warn. It was not reasonably foreseeable that one of ITT’s B67RA28 gas valves would be installed on the floor furnace involved in this case and therefore ITT had no duty to warn of the danger inherent in the presence of a jumper on the gas valve.

The final argument raised by plaintiff relates to jury instructions. Plaintiff first argues that the trial court erred in giving, over plaintiff’s objection, an instruction regarding plaintiff’s contributory negligence. The jury was instructed:

“It was the duty of the plaintiff before and at the time of the occurrence to use ordinary care for his own safety. The failure of the plaintiff to use ordinary care for his own safety is known as contributory negligence. The plaintiff’s contributory negligence if any does not bar his recovery. However, the total damages, if any, to which he would otherwise be entitled to recover is reduced in proportion to the amount of his negligence. This is known as comparative negligence.”

Plaintiff argues that this instruction was erroneous because the concept of contributory negligence does not apply to actions in strict liability, and therefore, the instruction should not have been given with respect to defendant Empire. We find it unnecessary to discuss the merits of plaintiff’s argument, as we find any error in the giving of the instruction to be harmless. The jury found against plaintiff and in favor of Empire on the question of liability. The jury found that the furnace was not defective or unreasonably dangerous at the time it left Empire’s control. Therefore, the jury never reached the issue of plaintiff’s comparative fault with respect to defendant Empire. A judgment will not be reversed on the basis of faulty instructions unless the party complaining of the instructions can show prejudice as a result. (Kohutko v. Four Columns, Ltd. (1986), 148 Ill. App. 3d 181, 189, 498 N.E.2d 522, 527.) We find no prejudice in the giving of the instruction.

Plaintiff also argues that the trial court erred in refusing to give his tendered instructions No. 28 and No. 29. Plaintiff’s instruction No. 28 states:

“More than one person may be to blame for causing an injury. If you decide that the defendants were negligent and that their negligence was a proximate cause of the injury to the plaintiff, it is not a defense that some third party who is not a party to the suit may have also been to blame.”

Because this instruction refers to the concept of negligence, it is evident that it was meant to apply only to defendants Ghibaudys, against whom plaintiff recovered a judgment. Again, we are unable to see what prejudice resulted from the trial court’s refusal to give this instruction. Furthermore, this instruction was tendered by one of plaintiff’s cocounsel but was objected to by plaintiff’s other cocounsel. It was only after plaintiff's cocounsel objected that the trial court refused to give the instruction. Plaintiff cannot now claim error in the refusal of the instruction.

With respect to plaintiff’s instruction No. 29, plaintiff argues in his brief that it is identical to No. 28 except that it refers to an object rather than to an unknown third party. The record reflects that plaintiff’s instruction No. 29 is an issues instruction which was given by the court. Plaintiff cannot complain that the trial court refused to give his tendered instruction No. 29 where the record clearly shows that it was given.

For the foregoing reasons, we affirm the judgment of the circuit court of St. Clair County.

Affirmed.

LEWIS, J., concurs.

JUSTICE HARRISON,

specially concurring:

. I agree with the result reached by the majority, but write separately because I cannot accept its analysis on the question of foreseeability.

As the majority indicates, a central issue in plaintiff’s claim against Empire for breach of its duty to warn is “whether Empire knew or should have known that someone would replace its original gas valve with a different gas valve containing a jumper.” 183 Ill. App. 3d at 187.) Empire contends that it was not objectively reasonably foreseeable that such a replacement would be made, but I believe that the record contains considerable evidence which would support a contrary conclusion.

The evidence shows, for example, that ITT, the manufacturer of the valve which should have been used on the furnace here, also marketed other valves of similar design and configuration which could be installed on the furnace and which did contain jumpers. Indeed, before it began installing limit switches on its furnaces, Empire used such valves. The particular valve here was an ITT product. Although certain modifications had to be made in order for it to fit, there was evidence that these modifications were not complex and could be easily made without affecting the valve’s safety or performance. The record makes clear that the problem with the valve had nothing to do with the modifications, only with the fact that it contained a jumper.

Moreover, the installer’s guide published by Empire for use with its furnace, a copy of which was admitted into evidence, recommended in the troubleshooting section that if one found that the register temperature controls had no effect on the furnace, one should “[cjheck combination valve terminals for shorts, or a jumper between the two inside terminals (see 14) — jumper should not be there when temperature limit controls are used.” In my view, this indicates not merely that use of valves with jumpers was objectively reasonably foreseeable, but that Empire had actual knowledge that such valves could and would be installed in the unit.

Empire was well aware of what could happen if a jumper was present on the valve in its furnace. The limit switch could not perform its function, the unit would overheat, and fire might result. That is precisely what happened here. Given this evidence, I would conclude that it was objectively reasonably foreseeable that the valve would be replaced as it was and that someone could sustain the type of injury suffered by plaintiff.

For similar reasons, I would hold that an injury such as plaintiff’s was foreseeable by ITT. Although the ITT valve which was on the furnace at the time of the fire differed from the model normally installed by Empire, it was, as previously noted, capable of being fitted to the furnace without substantial modification. The valve was distributed by ITT with a jumper affixed to it. That ITT knew that it might be installed on furnaces containing limit switches is reflected in its installation and service brochure, which indicates that the jumper should be removed if an auxiliary control, such as a limit switch, is used. In addition, representatives from ITT testified that they were aware that if a jumper were used in a furnace containing a limit switch, the limit switch would not operate properly.

Although I believe that the type of injury sustained by plaintiff was objectively reasonably foreseeable by both Empire and ITT, I nevertheless agree that the circuit court acted correctly in directing a verdict in favor of Empire and against plaintiff and in favor of ITT and against the third-party plaintiffs, the Ghibaudys, on the duty to warn claims. Generally, a duty to warn exists where there is unequal knowledge between the manufacturer and user. (In re Estate of Dickens (1987), 161 Ill. App. 3d 565, 570, 515 N.E.2d 208, 211.) In this case, both plaintiff and the Ghibaudys qualify as users, but Mr. Ghibaudy, who installed the furnace in his house, indicated that he had experience as an electrician and plumber and knew about jumpers and their effects on limit switches. In other words, Ghibaudy had equal knowledge. Because he already knew what would happen if a jumper were present on the gas valve, Ghibaudy cannot now complain that an additional warning was not given to him.

The only other user was plaintiff. Plaintiff certainly cannot be said to have equal knowledge. Indeed, the evidence indicates that he knew nothing at all about the furnace. There is, however, a more basic impediment to plaintiff’s claim: proximate cause. In a products liability action, a plaintiff must prove that the claimed defect in the product was a proximate cause of his injury. (Artis v. Fibre Metal Products (1983), 115 Ill. App. 3d 228, 232, 450 N.E.2d 756, 759; Lindenmier v. City of Rockford (1987), 156 Ill. App. 3d 76, 85, 508 N.E.2d 1201, 1207.) Here, the defect complained of is, of course, the inadequate warning. Plaintiff has failed to establish, however, how more extensive warnings might have helped avoid the accident in which he was injured. Plaintiff certainly never attempted to change or modify the gas valve in the furnace himself, and there is no indication that he had anyone attempt to do it for him. In fact, plaintiff did nothing to the furnace except block the grate. A warning against using a jumper on the gas valve would scarcely have deterred him from doing that.

The jury may have concluded that Ghibaudy was the one who replaced the valve, but as we have just discussed, he had equal knowledge of the jumper/limit switch problem. He therefore did not need additional warnings. The jury evidently rejected the claim that the furnace had a jumper on it at the time it left the factory. Based on the record before us, the only other way the valve with the jumper might have gotten on the furnace is if it had been installed by the company which first installed the furnace in a different residence before the furnace was acquired by Mr. Ghibaudy. As with Ghibaudy, however, the record indicates that the installer from that company had equal knowledge of the jumper/limit switch problem. Additional warnings were therefore not required for him either. Given this, I fail to see, and plaintiff has not explained, how the absence of more complete warnings as to the presence of jumpers on the valves contributed in anyway to his injuries. I therefore concur.


author: JUSTICE BARRY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GERALD L. WARREN, Defendant-Appellant.
    Third District
    No. 3—88—0405
    Opinion filed May 24, 1989.
    Rehearing denied June 16, 1989.

      Robert Agostinelli, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Gary L. Spencer, State’s Attorney, of Morrison (Barbara A. Chasnoff, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE BARRY

delivered the opinion of the court:

Defendant Gerald Warren was charged in two counts with the November 22, 1987, residential burglary of the Rock Falls home of Wennona Bell. The charging instrument alleged that defendant entered Bell’s home with the intent to commit a theft (count I) and the intent to commit criminal sexual assault (count II). Prior to trial, defendant moved to dismiss count II. The court ultimately granted that motion after hearing the testimony of the State’s occurrence witnesses at trial. A jury found defendant guilty of count I, and defendant was sentenced to serve an extended term of 30 years in the Department of Corrections. The court ordered this sentence to run consecutive to a 25-year term imposed for another residential burglary for which defendant had been released on bail bond at the time he committed the instant offense.

In this appeal, defendant contends that the trial court erred in admitting evidence of his prior residential burglary and that he is entitled to a new sentencing hearing because the court erroneously believed that defendant was eligible for an extended term, and because 30 years is excessive. We allowed defendant to file a pro se brief to supplement that of his appellate counsel. In it, defendant challenges his sentence on the further ground that his sentence should not have been made consecutive to that imposed for the prior residential burglary. Having considered all of these issues, we affirm defendant’s conviction and his sentence for reasons that follow.

Prior to trial, defense counsel filed a motion in limine to bar evidence of defendant’s earlier residential burglary. The court reserved judgment on the motion until the State’s occurrence witnesses had completed their testimony and cautioned the prosecutor not to mention the prior offense in opening statement. The State’s evidence as it unfolded at trial established that Wennona Bell and defendant’s sister, Cheryl Heidi, had been friends for many years. Through Cheryl, Bell had met defendant and his brother, Greg Warren. On the evening of November 21, 1987, Bell and her boyfriend, David Burgess, went out on a date. Bell’s two teenage nieces, Kelly and Trina Williams, stayed at her home that night to baby-sit Bell’s three-year-old daughter, Carrie. Bell and Burgess stopped for a drink at the R & R tavern in Rock Falls between 9:30 and 10 p.m. Burgess left Bell at the bar for a few minutes while he went to the restroom. During this period, defendant, who was also at the bar, told the barmaid that he wanted to buy Bell a drink. Bell refused the offer. Defendant left the tavern. Burgess then returned from the restroom and left the tavern with Bell.

The two returned to Bell’s home between 10:30 and 10:45 p.m. Bell and Burgess retired to Bell’s upstairs bedroom, and Kelly and Trina slept downstairs on a couch and chair. Carrie, whose bedroom was down the hall from Bell’s, left her bed to sleep on the floor by her mother’s bed. Around 1:30 a.m., Trina was awakened by the sound of the kitchen window being opened. She went upstairs and lay down to sleep on Carrie’s bed. Then Trina heard more noises coming from the kitchen. She got up and went into Bell’s room, awoke Bell and told her someone was in the apartment. Bell told her to lie down by Carrie. Then a man appeared in the doorway. Bell observed that the man carried no weapon and wore gloves. He stood still for a few seconds and then walked down the hallway toward Carrie’s room. A few seconds later, he reappeared at the doorway to Bell’s room and opened the door. The light from the bathroom illuminated his face. Bell awoke Burgess and yelled out, “It’s Cheryl’s brother!”

The man bolted when Burgess lurched out of the bed to give chase. The man awoke Kelly when he fell down the stairs. He got up and fled through the back door. After assuring himself that Kelly was all right, Burgess walked out the front door. Then he saw a car resembling defendant’s pull out of a parking space in front of the apartment building with its lights out.

A check of the apartment revealed that the intruder had cut the kitchen window screen to gain entry, but that nothing had been taken. Bell was the only witness who had observed the intruder’s face sufficiently to make a positive identification. Burgess, who was acquainted with Greg Warren, but not with defendant, testified that he was certain that the slender build of the man he had chased was not that of Greg, who was heavier set.

The court heard the parties’ arguments on defendant’s motion in limine at the completion of the foregoing testimony. Defense counsel argued that the prior crime evidence was irrelevant and prejudicial. The prosecutor contended that the two offenses were strikingly similar, and they were committed only three months apart and in similar neighborhoods of Rock Falls. Because defendant was relying on an alibi defense, the prosecutor sought admission of the facts of the earlier crime for purposes of identifying defendant as the perpetrator— i.e., modus operandi — and intent to commit theft. The court determined that evidence of the prior offense could be admitted on the question of intent, but not for modus operandi.

At that point, the State introduced three witnesses — an investigating officer and two occurrence witnesses — who testified about an August 1987 residential burglary of the Earl Sliger residence in Rock Falls. A video cassette recorder taken from that residence was found in defendant’s car, which was parked in front of the home when officer Humberto Perez arrived on the scene. Defendant was subsequently arrested and convicted of the offense.

Defendant’s employer, Seymour Lesorgen, and two co-workers at Upholstery Unlimited in De Kalb testified on defendant’s behalf. Each testified that they had seen defendant working on a couch or asleep on a table in the shop at various times between 6 p.m. on November 21 and 10 a.m. the following morning.

As a general rule, evidence of other crimes is inadmissible if offered only to establish defendant’s propensity to commit crime. Exceptions to the rule are permitted where evidence goes to establish, e.g., intent or modus operandi, and the probative value of the evidence clearly outweighs its prejudicial impact. (People v. McKibbins (1983), 96 Ill. 2d 176, 449 N.E.2d 821.) In this case, the trial court ruled that the State could admit evidence of the earlier residential burglary only to the extent needed to establish the element of intent. The court’s ruling prohibited introduction of the prior crime for purposes of modus operandi.

Defendant complains that the State seized upon the opportunity presented by the trial court’s partial denial of defendant’s motion in limine to virtually retry the earlier residential burglary. Having reviewed the evidence in the context of the entire trial, we agree that the State exceeded the boundaries set by the court’s ruling. Rather than limiting the testimony to the fact that defendant had committed another residential burglary and had taken the victim’s property, the prosecutor elicited details concerning defendant’s encounter with the victim at a tavern during the evening of the burglary, his entry through a cut screen, defendant’s approach to the victim’s 12-year-old daughter in her bedroom, and his appearance at the bedroom door of the victim and his wife.

While admission of these details was objectionable based on the court’s ruling, defendant failed to object specifically to the scope of the testimony at trial or in his post-trial motion. Defendant stood, instead, on his general objection as set forth in his motion in limine to exclude. Thus, the trial court was not presented with an opportunity to rule upon the question of whether the evidence exceeded the scope of the court’s earlier ruling on defendant’s in limine motion, and that issue is waived for purposes of appeal.

Even were we to consider the issue on its merits, we nonetheless would not find that the excessive evidence of another crime as admitted in this case was so prejudicial as to require a reversal of defendant’s conviction. Except for the element of intent, the State’s evidence of defendant’s guilt of the instant residential burglary as presented through the occurrence witnesses was overwhelming. Defendant on appeal does not deny that the trial court correctly ruled that evidence of the prior burglary was admissible to the extent necessary to establish circumstantial evidence of intent. The jury was properly instructed on the use of both circumstantial evidence and evidence of another crime to show intent in this case. The evidence properly presented at trial amply supports the jury’s verdict. Accordingly, we conclude that the admission of excessive evidence of another crime in this case was harmless beyond a reasonable doubt.

Defendant next argues that he is entitled to a new sentencing hearing because the court erroneously considered his 1976 attempted murder conviction a Class 1 or greater class of felony for purposes of the extended-term statute (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 5— 3(b)(1)). Attempted murder was an unclassified offense at the time of defendant’s conviction, for which the sentence could not exceed the sentence for a Class 1 felony. (Ill. Rev. Stat. 1975, ch. 38, par. 8— 4(c)(1).) Defendant relies on the authority of People v. Moore (1978), 69 Ill. 2d 520, 372 N.E.2d 666, and the principle of strict construction of penal statutes in urging that his 30-year extended sentence is statutorily unauthorized.

In Moore, defendant was convicted of attempted murder and sentenced to a term of imprisonment of 4 to 10 years. The sentencing court ruled that four years was, by statute, the mandatory minimum. On review, the issue was whether the minimum prison sentence for attempted murder was determined by section 5 — 8—1(b)(2) of the Unified Code of Corrections (Ill. Rev. Stat. 1975, ch. 38, par. 1005— 8 — 1(b)(2)), which set the term for a Class 1 felony as “any term in excess of 4 years.” The court, construing section 8 — 4(c)(1) of the Criminal Code of 1961, observed that that section addressed only the maximum sentence allowable, and, since no provision of either the Criminal Code of 1961 or the Unified Code of Corrections delimited the minimum sentence for attempted murder, the court remanded the cause for resentencing.

Clearly, the issue in Moore is not identical to the one here presented. Although the precise question has not been addressed in any reported decision of this district, we note that it has been determined in sister districts of the Illinois Appellate Court. See, e.g., People v. White (2d Dist. 1985), 134 Ill. App. 3d 262, 479 N.E.2d 1121; People v. Zuniga (1st Dist. 1981), 99 Ill. App. 3d 396, 425 N.E.2d 1094 (both of which cases note that, for purposes of sentencing, attempted murder is a Class X felony).

In Zuniga, defendant appealed his sentence for attempted armed robbery. The predicate conviction for purposes of the extended-term statute was an attempted murder conviction entered in 1979. At that time, section 8 — 4(cXl) provided that the sentence for attempted murder was not to exceed the sentence for a Class X felony. (See Ill. Rev. Stat. 1979, ch. 38, par. 8 — 4(cXl) (as amended by Pub. Act 80 — 1099, eff. Feb. 1, 1978).) On the basis of the earlier attempted murder conviction, the court affirmed an extended sentence of 20 years on defendant’s attempted armed robbery conviction, for which section 8 — 4(cX2) provided that the sentence was not to exceed that of a Class 1 felony.

A similar result was reached in People v. Shumate (1981), 94 Ill. App. 3d 478, 419 N.E.2d 36. There, defendant unsuccessfully challenged application of the extended-term statute in sentencing for attempted robbery (for which section 8 — 4(cX4) of the Criminal Code of 1961 specified that the sentence could not exceed the sentence for a Class 3 felony) predicated on an aggravated battery conviction (a Class 3 felony in 1976 when the conviction was entered). Because attempt is an unclassified offense, defendant posited, attempted robbery could not be considered a “felony” for purposes of the extended-term statute. The court rejected defendant’s application of Moore and ruled that “[s]ince an attempt may be punished as a felony, we find no statutory impediment to considering attempts as felonies for purposes of the extended-term statute.” 94 Ill. App. 3d at 491, 419 N.E.2d at 47, citing with approval People v. Sally (1980), 84 Ill. App. 3d 167, 405 N.E.2d 407; People v. Clifford (1980), 88 Ill. App. 3d 305, 410 N.E.2d 537.

Based on the authority of these well-reasoned opinions, we hold that for purposes of applying the extended-term provision of the Uniform Code of Corrections to a subsequent conviction, it is the legislative pronouncement of the maximum sentencing scheme as provided in section 8 — 4(c) of the Criminal Code of 1961 that controls. (We note that legislation effective January 1, 1980, ultimately resolved the Moore problem by changing the language from “shall not exceed the sentence for” to “is the sentence for.” (Emphasis added.) (Ill. Rev. Stat. 1979, ch. 38, par. 8 — 4(c) (as amended by Pub. Act 81 — 923, eff. Jan. 1, 1980).) Accordingly, we find that the sentencing court in this case did not err in extending the sentence for defendant’s residential burglary conviction (a Class 1 felony) on the basis of his 1976 attempted murder conviction, the maximum sentence for which was that of a Class 1 felony.

We have reviewed defendant’s contention that his 30-year sentence for this offense, which is to run consecutively to the sentence imposed on the prior residential burglary sentence, is excessive. We find this argument meritless. Defendant’s criminal history is extensive. The sentence is within permissible guidelines (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8—2(a)(3)), and the record discloses no abuse of the sentencing court’s discretion.

Likewise, we have reviewed and found meritless defendant’s pro se issue challenging the sentencing court’s determination that the sentence for this offense must run consecutively to that imposed for the prior residential burglary sentence. Defendant apparently takes the position that “pre-trial release,” as it appears in section 5 — 8— 4(h) of the Uniform Code of Corrections (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8—4(h)), includes release for purposes of, e.g., a psychiatric evaluation, but not release on bail bond. Suffice it to say, defendant’s construction is strained and antithetical to the legislative intent of the statute, which is to protect the public from repeat offenders.

Finally, we note that defendant’s cause in appellate case number 3 — 88—0080 (the Sliger residential burglary conviction) was remanded to the circuit court for a new sentencing hearing. Defendant has urged in this appeal that a remand in that case will necessitate a remand in this one as well. However, inasmuch as we have concluded based upon our independent analysis of the issues presented in this case that the circuit court did not err, we decline to grant a remand.

The judgment of the circuit court is affirmed.

Affirmed.

WOMBACHER, P.J., and SCOTT, J., concur.


author: JUSTICE STOUDER

text:
      In re VERNON J. VANCIL, Asserted to be a Person Subject to Involuntary Admission (The People of the State of Illinois, Petitioner-Appellee, v. Vernon J. Vancil, Respondent-Appellant).
    Third District
    No. 3—88—0623
    Opinion filed May 18, 1989.

      Cynthia Z. Tracy, of Guardianship & Advocacy Commission, of Peoria, for appellant.
    John A. Barra, State’s Attorney, of Peoria (Vicki L. Seidl, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE STOUDER

delivered the opinion of the court:

The respondent, Vernon J. Vancil, was involuntarily committed to a mental health hospital (Ill. Rev. Stat. 1987, ch. 911/2, par. 1 — 119). The trial court subsequently found that the respondent was still subject to involuntary admission and entered an order continuing his hospitalization in the Department of Mental Health and Developmental Disabilities. The respondent appeals, arguing among other things that the petition for continuation of his involuntary admission was not timely filed.

The record shows that on June 16, 1988, the trial court initially found that the respondent was subject to involuntary admission and ordered him hospitalized. On August 22, 1988, the State filed the second petition to involuntarily admit the respondent.

Section 3 — 813(a) of the Mental Health and Developmental Disabilities Code (the Code) (Ill. Rev. Stat. 1987, ch. 911/2, par. 3 — 813(a)) provides that an initial hospitalization order expires no later than 60 days after its entry, unless a timely petition is filed within the 60-day period. If no petition is filed prior to the expiration of the initial order, the statute requires that the patient be discharged. Ill. Rev. Stat. 1987, ch. 911/2, par. 3-813(a).

Here, the initial order for hospitalization was filed June 16, 1988. The second petition was not filed until August 22, 1988. The respondent was still in the hospital despite the expiration of the 60-day period. Nonetheless, the State argues that because the petition filed on August 22 satisfied all the requirements of a section 3 — 701(a) initial commitment petition (Ill. Rev. Stat. 1987, ch. 911/2, par. 3 — 701(a)), the second petition should be viewed as a petition for initial involuntary admission even though the respondent had not been released.

We find no merit in this argument. The trial court treated the proceeding on the August 22 petition as an action for continuation of hospitalization. The mandatory requirement that the respondent be discharged if a section 3 — 813(a) petition is not timely filed cannot be circumvented by utilizing other sections of the Code. Protection of the rights of persons who may be entitled to discharge requires adherence to the statutory provisions enacted for that purpose. (In re Smith (1986), 145 Ill. App. 3d 1002, 496 N.E.2d 497.) Unambiguous statutory involuntary commitment procedures affecting liberty interests will be strictly enforced. In re Macedo (1986), 150 Ill. App. 3d 673, 502 N.E.2d 72.

The unambiguous statutory provisions were not followed in this case. We therefore reverse the trial court’s order of August 31, 1988, continuing the respondent’s involuntary hospitalization. Our decision renders moot the remaining issues raised by the respondent..

The judgment of the circuit court of Peoria County is reversed.

Reversed.

BARRY andHEIPLE, JJ., concur.


text:
    GALENA PARK HOME, Plaintiff-Appellee, v. WILLIAM KRUGHOFF, Defendant-Appellant.
    Third District
    No. 3—88—0462
    Opinion filed May 17, 1989.

      James E. Swanson, of Peoria, for appellant.
    Leanna L. Karnopp, of Peoria, for appellee.
   JUSTICE STOUDER

delivered the opinion of the court:

The trial court entered judgment in the sum of $8,407.82 in favor of the plaintiff, Galena Park Home, and against the defendant, William Krughoff. The defendant appeals. We affirm.

On April 7, 1986, the plaintiff sued the defendant for payment for nursing home services the plaintiff had provided the defendant’s father, Clarence Krughoff. At trial Dianna Stroud, the plaintiff’s assistant administrator, testified that on September 21, 1982, Clarence Krughoff was admitted into Galena Park Home. According to Stroud, at the time of the admission the defendant told her that he would take personal responsibility for the cost of the care. While Clarence Krughoff was under the plaintiff’s care, the defendant had difficulty getting Blue Cross/Blue Shield to pay for some of the nursing home services. Stroud testified that on several occasions the defendant assured her that regardless of Blue Cross’s actions he would be personally responsible for the bill.

The defendant testified that he had previously filed suit against Blue Cross to compel them to pay $8,412.65 for the nursing home services. In his verified complaint against Blue Cross, the defendant stated that he was personally liable for the amount due and that he had paid the plaintiff in full. As a result of the suit, Blue Cross paid to the defendant’s attorney the full amount due Galena Park Home. The attorney deducted his legal fees from Blue Cross’s payment and transferred $4,255.62 to the defendant. The defendant offered that amount to the plaintiff in full settlement of the account, but the plaintiff rejected the offer.

The defendant admitted that he had not paid any money on his father’s account. He stated that he believed he was not responsible for the full amount of the unpaid bill but was only required to turn over the amount he received after the deduction of attorney fees.

The trial judge held for the plaintiff under the doctrine of promissory estoppel. The defendant argues on appeal that the doctrine of promissory estoppel should not apply in this case. The plaintiff replies that the doctrine was properly applied and, alternatively, that the doctrine of judicial estoppel should bar the defendant from denying liability for the full amount of the unpaid services. We find that the judgment should .be affirmed under the doctrine of judicial estoppel and will therefore .address the appeal on that basis.

The defendant first argues that the judicial estoppel argument was waived because it was not advanced at trial. We note, however, that an appellee is entitled to sustain a judgment by any argument and upon any basis appearing in the record, even if that argument was not raised at trial. (Village of Arlington Heights v. National Bank (1977), 53 Ill. App. 3d 917, 369 N.E.2d 502.) Consequently, the waiver doctrine is inapplicable to this case.

The doctrine of judicial estoppel provides that when a party assumes a particular position in a legal proceeding, that party is estopped from asserting a contrary position in a subsequent proceeding. (Finley v. Kesling (1982), 105 Ill. App. 3d 1, 433 N.E.2d 1112.) The doctrine applies only when the following elements are established: (1) two positions have been taken by the same party; (2) the positions were taken in separate judicial or quasi-judicial administrative proceedings; (3) the party intended that the trier of fact accept the truth of the facts alleged in support of the positions; (4) the party was successful in asserting the first position and received some benefit in the first proceeding; and (5) the two positions were inconsistent. Department of Transportation v. Grawe (1983), 113 Ill. App. 3d 336, 447 N.E.2d 467.

In his suit against Blue Cross, the defendant stated in his verified complaint that he was liable for the costs of his father’s care and that he had expended $8,412.65 on his father’s bill. As a result of that proceeding, he and his attorney received the full amount due on the bill. In the instant case, by contrast, the defendant stated that he had not expended any money for his father’s care and that he did not believe that he was liable for the full amount of the bill. As this position is inconsistent with the defendant’s position in the previous case, and since the defendant received a benefit from the first proceeding, we find that he was judicially estopped from arguing in the instant case that he was not liable for the full amount of his father’s bill.

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

Affirmed.

WOMBACHER, P.J., and BARRY, J., concur.