author: JUSTICE LORENZ

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARVIN WILLIAMS, Defendant-Appellant.
    First District (5th Division)
    No. 1—88—0212
    Opinion filed August 31, 1990.

      Randolph N. Stone, Public Defender, of Chicago (Z. Peter Tokatlian, Assistant Public Defender, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb, Paul Gliatta, and Catherine Bernard, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LORENZ

delivered the opinion of the court:

After a jury trial, defendant Marvin Williams was convicted and sentenced for aggravated criminal sexual assault (Ill. Rev. Stat. 1985, ch. 38, par. 12—14(b)(1)). Defendant now appeals and we address the following issues: (1) whether admission of the victim’s alleged hearsay testimony amounted to plain error; (2) whether defendant was denied effective assistance of counsel; (3) whether a witness improperly testified to a prior consistent statement; (4) whether the victim’s testimony that she and defendant had intercourse previously was inadmissible evidence of other crimes; (5) whether the trial judge improperly considered a victim impact statement prepared by the victim’s mother when sentencing defendant; and (6) whether defendant’s sentence was an abuse of discretion. We affirm.

The State tried defendant for one count of criminal sexual assault and one count of aggravated criminal sexual assault for an incident that occurred on April 18, 1986. (Ill. Rev. Stat. 1985, ch. 38, pars. 12— 13(a)(1), 12—14(b)(1).) The aggravated criminal sexual assault indictment was based on the fact that defendant was over the age of 17 and the victim was under the age of 13. The criminal sexual assault indictment was based on the use or threat of force.

Prior to trial, defendant moved to prohibit the State from introducing the victim’s testimony that defendant had intercourse with her for a period of two years. The trial judge denied the motion.

The victim, A.F., who was 11 years old, testified that it was her responsibility to pick up her five-year-old cousin from her aunt’s apartment and take him to school. Defendant lived with her aunt and was her cousin’s father.

On April 18, 1986, at approximately noon, A.F. went to her aunt’s apartment building to pick up her cousin. Defendant met A.F. downstairs and told her that her cousin was not home. Defendant gave A.F. some money and sent her to buy potato chips. When she returned, defendant and A.F. went to his apartment to get some newspaper and then they went to a nearby apartment building. On a stairway landing, defendant laid out the newspaper and told A.F. to take off her pants. When A.F. refused, defendant told her to trust him because he knew what he was doing. Defendant pulled down A.F.’s pants and underwear and laid her down on the newspaper. He pulled down his pants, laid on top of her, and put his penis in her vagina. During the act, A.F. saw her friend Terrell Anderson and two other boys walking up the stairway. When defendant saw them, he pulled his pants up and barked like a dog. The boys ran away. Defendant and A.F. left the building, and he gave her 40 cents and told her to go to school.

A.F. went to school and did not tell her teacher or her friends what happened. After school, she went to her grandmother’s apartment. A.F.’s mother was there with a family friend, Greta Conner, and they spoke with A.F. A.F.’s mother asked A.F. the name of the boy or the man. A.F. also testified that before she told her mother who he was, her mother hit her two or three times on the arm. After a half hour, A.F. “told her it was [defendant].” Defendant did not object to this testimony.

A.F. testified that defendant had intercourse with her for approximately a one-year period and generally it would always occur at her aunt’s apartment but once it occurred at her grandmother’s apartment. A.F. testified that she did not tell anyone during that time because defendant said her mother and her aunt would hate her and her mother would beat her.

Anderson testified that on April 18, 1986, he was with two friends and saw defendant on top of A.F. on the stairway landing. When defendant saw him, defendant zipped up his pants and barked like a dog. A.F. pulled up her pants. After Anderson ran away, he saw defendant and A.F. run out of the apartment building. Later that day, Anderson told his mother and her friend, Conner.

Conner testified that on April 18, 1986, she was at her sister’s apartment with her sister, Anderson, and his mother. After a conversation with Anderson, Conner went to A.F.’s grandmother’s apartment. Conner had a conversation with A.F.’s mother and was present during a conversation between A.F. and her mother.

J.F., A.F.’s mother, testified that in April of 1986, defendant was her sister’s live-in boyfriend. At that time, A.F. was 10 years old. In the afternoon of April 18, J.F. was at her mother’s apartment, where she had a conversation with Conner. J.F. then had a conversation with A.F. while Conner and J.F.’s sister were present. J.F. asked A.F. what happened but A.F. would not tell her. They spoke for a half hour, and during that conversation, J.F. hit A.F. once. Later that day, J.F. took A.F. to various hospitals.

Dr. Anthony Dekker, qualified as an expert in evaluating child sexual abuse, testified that on April 19, 1986, he examined A.F. Dekker’s physical examination of A.F. revealed vaginal trauma which was consistent with recent and chronic penile penetration. Also, A.F. had trichomonas which in Dekker’s opinion was transmitted by sexual contact. A.F. told Dekker that a man put his penis inside her, and when she was asked where, A.F. pointed to her vaginal area. A.F. said it happened on previous occasions. Dekker testified that A.F. told him the man’s name.

Defendant testified he was 42 years old and A.F.’s aunt was his girl friend. At approximately noon on April 18, 1986, he was at his girl friend’s apartment with her and their son. He left the apartment at approximately 12:30 p.m. with his sister. He denied ever having intercourse with A.F.

The parties stipulated that if a person identified as M. Lewis was called to testify, she would state that she was a social worker and on April 22, 1986, she interviewed J.F. In her report, Lewis stated that J.F. said, “I had to beat [A.F.] to get her to tell me who it was that messed with her.”

The parties also stipulated that defendant was convicted of misdemeanor theft on May 7,1982.

The jury found defendant guilty of criminal sexual assault and aggravated criminal sexual assault. Defendant’s motion for new trial was denied.

At the sentencing hearing, the State offered a victim impact statement prepared by J.F. pursuant to section 6 of the Bill of Rights for Victims and Witnesses of Violent Crime Act (Ill. Rev. Stat. 1985, ch. 38, par. 1406). Defendant objected, stating:

“[T]he statute says it’s a victim impact statement. I know this has been expanded to include the families, but based upon this, it’s hearsay on hearsay on hearsay. Some of the things that allegedly [J.F.] is saying like for instance, what a teacher told her about her daughter and that she’s now put in this report.
***
I think many of these statements in here are just broad allegations or generalizations which should not be considered by the court in sentencing.”

The trial court overruled defendant’s objection. The State indicated that J.F. believed it was in A.F.’s best interest that A.F was not present at the sentencing hearing. The State also indicated A.F. was receiving counseling.

In sentencing defendant, the trial judge relied on defendant’s 1967 and 1971 convictions for indecent liberties, the young age of the victim, and his concern that defendant could abuse other children. The judge sentenced defendant to the maximum term of 30 years’ imprisonment.

Opinion

Defendant argues A.F.’s testimony that she told her mother defendant had intercourse with her was inadmissible hearsay. When asked what she told her mother, A.F. testified that she “told her it was [defendant].”

Conceding that he did not object to the testimony at trial and did not include the issue in his post-trial motion, defendant urges this court to review the issue under Supreme Court Rule 615(a) (134 Ill. 2d R. 615(a)), which allows review of plain errors or defects affecting substantial rights even though the issue was not raised in the trial court. When the evidence at trial was closely balanced or the alleged error was of. such magnitude that defendant was denied a fair trial, the reviewing court may consider errors which were not raised in the trial court. (People v. Walker (1985), 109 Ill. 2d 484, 488 N.E.2d 529.) In this case, however, the evidence presented at trial, which included A.F.’s testimony, an eyewitness’ testimony, and medical evidence, overwhelmingly established defendant’s guilt. Further, the alleged error was insignificant in light of the evidence presented and did not deny defendant a fair trial. Accordingly, the admission of the alleged hearsay testimony was not plain error.

After oral argument in this case defendant was granted leave to file a supplemental brief raising the issue that he was denied effective assistance of trial counsel. Defendant contends that he was prejudiced because his trial attorney did not object to A.F.’s alleged hearsay statement that she told her mother defendant had intercourse with her.

Issues not raised in appellant’s brief are considered waived on appeal (134 Ill. 2d R. 341(e)(7)); however, as previously stated, a reviewing court can consider issues that rise to the level of plain error (134 Ill. 2d R. 615(a)).

To establish a claim of ineffective assistance of counsel, counsel’s performance must have been seriously deficient and there must be a reasonable probability that defendant would have been found not guilty had the professional errors not occurred. (People v. Jennings (1986), 142 Ill. App. 3d 1014, 492 N.E.2d 600.) “[W]here the declarant is available in court or there is an opportunity to ascertain the veracity of the testimony by cross-examination, there is no hearsay problem.” (Jennings, 142 Ill. App. 3d at 1027, 492 N.E.2d at 608.) The failure to object to such testimony does not support a claim of ineffective assistance of counsel. Jennings, 142 Ill. App. 3d 1014, 492 N.E.2d 600.

As noted previously, defendant claims that A.F.’s testimony that she “told her [mother] it was [defendant]” was hearsay. Such testimony did not present a hearsay problem because A.F. was on the witness stand and subject to cross-examination. Further, based on the overwhelming evidence against him, there is no reasonable probability that if defendant had raised an objection, he would have been found not guilty. Therefore, defendant’s argument that he was denied effective assistance of counsel is without merit.

Defendant also seeks review of another issue as plain error because he did not raise the issue in the trial court. Defendant claims that Anderson was allowed to testify to his prior consistent statement. Anderson testified that he saw defendant on top of A.F. on the stairway landing and that he later told his mother and Conner. His testimony did not reveal the substance of his conversation with them.

Generally, a witness may not testify to prior statements consistent with his trial testimony unless there is a charge that the witness’ testimony was recently fabricated or he has a motive to testify falsely. (People v. Harris (1988), 123 Ill. 2d 113, 526 N.E.2d 335.) In this case, however, because Anderson did not testify as to the substance of his conversation, there was no testimony of a prior consistent statement.

Defendant next argues that the trial judge improperly admitted evidence of other sexual acts between defendant and A.F. for which defendant was not charged. At trial, A.F. testified that defendant had intercourse with her for a period of one year prior to April 18, 1986.

Evidence of crimes other than those defendant is charged with is inadmissible if relevant only to establish defendant’s propensity to commit crime. (People v. Lindgren (1980), 79 Ill. 2d 129, 402 N.E.2d 238.) However, such evidence is admissible if it is relevant to establish knowledge, intent, motive, design, plan, or identification. (Lindgren, 79 Ill. 2d 129, 402 N.E.2d 238.) In cases involving indecent liberties (now aggravated criminal sexual assault (Ill. Rev. Stat. 1985, ch. 38, par. 12—14(b)(1))), evidence of sexual acts by defendant with the same child can be admitted to show the relationship of the parties and defendant’s intent. People v. Richardson (1959), 17 Ill. 2d 253, 161 N.E.2d 268.

In Richardson, defendant was tried for taking indecent liberties with his seven-year-old daughter. In addition to testifying to the incident for which defendant was charged, the daughter also testified that two days after the incident, defendant again took indecent liberties with her. On appeal from his conviction, defendant contended evidence of other offenses was inadmissible. The supreme court stated that generally a defendant cannot be convicted of one offense with evidence that he committed another; however, an exception applied in indecent liberties cases. In such cases, evidence of separate offenses with the same child was admissible to show the relationship of the parties and the intent with which the act was done. The court found that the admission of the other offense against the daughter was admissible and defendant’s conviction was affirmed.

In People v. Tannahill (1987), 152 Ill. App. 3d 882, 504 N.E.2d 1283, defendant was charged with one count of aggravated criminal sexual assault and two counts of indecent liberties with his daughter. The daughter, who was between 9 and 12 years old at the time of the incidents, testified that defendant sexually abused her three different times. She also testified that defendant sexually abused her at other times even though defendant was not charged for those incidents. Defendant was convicted and argued the evidence of other offenses was inadmissible. The appellate court found that evidence of defendant’s prior sexual offenses with the same child was admissible to show the relationship and familiarity of the parties and defendant’s intent, design, or course of conduct. Also, such evidence was admissible to corroborate the child’s testimony.

In this case, defendant was charged with aggravated criminal sexual assault and criminal sexual assault against A.F. for an incident that occurred on April 18, 1986. A.E testified at trial that defendant had intercourse with her for approximately one year prior to that date. Based on Richardson and Tannahill, this evidence of defendant’s prior offenses against A.F. was properly admitted to show the relationship between defendant and A.F., defendant’s intent, and to corroborate A.F.’s testimony.

Defendant also argues that the trial court improperly considered a victim impact statement prepared by A.F.’s mother when sentencing him. At the sentencing hearing, the State presented a statement from J.F., A.F.’s mother, which explained the effect defendant’s crime had on A.F. and herself. Defendant did not object to the fact that the victim impact statement was prepared by J.F. rather than A.F. and, therefore, we must consider whether plain error occurred. Also,- the victim impact statement was not included in the record on appeal.

Section 6 of the Bill of Rights for Victims and Witnesses of Violent Crime Act (Ill. Rev. Stat. 1985, ch. 38, par. 1406) provides:

“In any case where a defendant has been convicted of a violent crime *** and a victim of the violent crime is present in the courtroom at the time of the sentencing *** hearing, the victim upon his or her request shall have the right to address the court regarding the impact which the defendant’s criminal conduct *** has had upon the victim. If the victim chooses to exercise this right, the impact statement must have been prepared in writing *** prior to the initial hearing or sentencing, before it can be presented orally at the sentencing hearing. The court shall consider any statements made by the victim, along with all other appropriate factors in determining the sentence of the defendant.”

The parent of a victim “who is physically or mentally incapable of exercising such rights” can exercise the victim’s rights under the Act. (Ill. Rev. Stat. 1985, ch. 38, par. 1403(a)(3).) Whether a victim is mentally capable of preparing a victim impact statement depends on his age and his ability to communicate. People v. Van Ostran (1988), 168 Ill. App. 3d 517, 522 N.E.2d 851.

For his argument that the trial court improperly considered the victim impact statement prepared by J.F., defendant relies on People v. Rainey (1986), 149 Ill. App. 3d 327, 500 N.E.2d 602. In Rainey, on appeal from defendant’s conviction for aggravated criminal sexual assault, an appellate court found it was improper to consider a victim impact statement prepared by the mother of a 12-year-old child. The child’s testimony at trial was competent and coherent and there was nothing in the record indicating that the child’s condition from the time she testified to the time of the sentencing hearing deteriorated to the point that she could not prepare the statement.

In People v. Reid (1987), 160 Ill. App. 3d 491, 513 N.E.2d 517, however, an appellate court declined to follow Rainey even though the victim also testified at trial and did not prepare the victim impact statement. In Reid, the parents prepared a victim impact statement for their seven-year-old child who testified at trial. On appeal from defendant’s conviction for aggravated criminal sexual assault, defendant argued that the trial judge erroneously considered the statement prepared by the victim’s parents because the victim was competent to testify at trial. The appellate court stated that it was proper for the trial judge to consider the statement even though there was no showing that the child was incapable of preparing it. The court distinguished Rainey because in that case the child was 12 years old and more likely to be capable of preparing the statement. The court stated that “[sjimply because the seven-year-old victim was found competent to testify and that she could relate the facts of what happened to her does not mean she is capable of preparing a written statement about the physical and emotional impact of the crime on her life.” (Reid, 160 Ill. App. 3d at 494, 513 N.E.2d at 519.) The court found that it was not improper for the trial court to consider the victim impact statement prepared by the victim’s parents.

At the sentencing hearing in this case, there was no specific showing that A.E was physically or mentally incapable of preparing the statement. Defendant did not raise an objection on that point at the time but now claims the victim impact statement was improperly considered.

Although A.F. testified at trial, the record indicates that she may not have been mentally capable of preparing the victim impact statement. The record shows that A.F. was 11 years old at the time and under counseling as a result of defendant’s abuse. Also, the State told the trial judge that J.F. believed it was in A.F.’s best interest not to attend the hearing. Accordingly, there is support in the record that A.F. was not mentally capable of preparing the statement and, therefore, it was not plain error for the trial judge to consider the statement prepared by J.F. when sentencing defendant.

Lastly, defendant argues that his sentence was excessive. A sentence within statutory limits will not be overturned on appeal absent an abuse of discretion. Reid, 160 Ill. App. 3d 491, 513 N.E.2d 517.

Defendant was convicted of a Class X felony (Ill. Rev. Stat. 1985, ch. 38, par. 12— 14(c)), which carries a sentence of not less than 6 years and not more than 30 years (Ill. Rev. Stat. 1985, ch. 38, par. 1005—8—1(a)(3)). Defendant was sentenced to the maximum term of 30 years’ imprisonment.

Defendant argues his sentence was excessive and that the trial judge did not consider his potential to rehabilitate himself. However, defendant’s record does not exhibit much potential for rehabilitation. He was 42 years old at the time of the crime and had two previous convictions for indecent liberties with a child. It was clear from the trial judge’s remarks that he imposed the maximum sentence because defendant had two prior convictions for abusing minors and he wanted to prevent defendant from harming any more children. Although the sentence was harsh, it was not an abuse of discretion.

Pursuant to People v. Nicholls (1978), 71 Ill. 2d 166, 374 N.E.2d 194, we grant the State’s request to assess the sum of $50 against defendant as costs for defending this appeal and pursuant to People v. Agnew (1985), 105 Ill. 2d 275, 473 N.E.2d 1319, we assess the sum of $25 as costs for oral argument.

Affirmed.

COCCIA, P.J., and MURRAY, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE LaPORTA

license: Public Domain

text:
    THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, Plaintiff-Appellee, v. JOHN E. WASHBURN, Director of Insurance, et al., Defendants-Appellants.
    First District (6th Division)
    No. 1—89—1157
    Opinion filed August 31, 1990.

      Neil E Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Deborah L. Ahlstrand, Assistant Attorney General, of Chicago, of counsel), for appellants.
    Richard Bromley, John L. Conlon, and Mary Kay McCalla, all of Chicago, for appellee.
   PRESIDING JUSTICE LaPORTA

delivered the opinion of the court:

Plaintiff, Prudential Insurance Company of America (Prudential), brought this action against defendants, John E. Washburn, Director of Insurance of the State of Illinois, Jerry Cosentino, State Treasurer of the State of Illinois, and Neil E Hartigan, Attorney General of the State of Illinois, seeking declaratory and injunctive relief based upon plaintiff’s claim that the computation of its privilege tax should be reduced by the amount paid as an interest assessment for underpayment of income taxes owed by plaintiff. The trial court construed the interest assessment as income tax and granted plaintiff a deduction for the interest assessment and ordered a refund of plaintiff’s privilege tax in the amount of the interest paid. Defendants appeal, contending that the trial court erred in holding that the interest assessed on the delinquent income taxes was to be construed as part of plaintiff’s income taxes and that plaintiff was entitled to a corresponding reduction of its privilege tax.

Plaintiff, a New Jersey corporation authorized to do business as an insurer in the State of Illinois, is required to pay a privilege tax to the Illinois Department of Insurance (Ill. Rev. Stat. 1987, ch. 73, par. 1021) in addition to corporate income tax payable to the Illinois Department of Revenue (Ill. Rev. Stat. 1987, ch. 120, par. 2— 201(b)(2)). Under the Insurance Code, the net amount of annual privilege tax paid by an insurer is reduced by the amount paid to Illinois as a tax on or measured by net income (Ill. Rev. Stat. 1987, ch. 73, par. 1021(2)(b)). In accordance with this provision, plaintiff’s calculation and payment of its annual privilege tax for the years 1972 through 1980 included a deduction for the amount of corporate income tax which it had paid to the Department of Revenue.

As a result of adjustments made after a Federal tax audit, plaintiff’s Federal income tax liability for the years 1972 through 1980 was increased. In December 1986, plaintiff advised the Illinois Department of Revenue that its adjusted Federal tax liability resulted in additional Illinois income tax liability in the amount of $436,272 for the years 1972 through 1980. Thus, for the years 1972 through 1980, plaintiff had underpaid its income taxes, and overpaid its privilege taxes, by $436,272. Plaintiff paid the additional income tax to the Department of Revenue in 1986 and claimed a corresponding credit against its 1986 privilege tax. The Department of Insurance did not dispute plaintiff’s right to take the credit against its 1986 privilege tax in the amount of the additional income tax liability paid. In November 1987, the Department of Revenue assessed plaintiff $433,443.26 as interest on the additional income taxes owed for the years 1972 through 1980 but not paid until 1986. Plaintiff paid the interest assessment to the Department of Revenue. Plaintiff subsequently paid $433,443.26 of its 1987 privilege tax under protest, claiming that it was entitled to a credit against its privilege tax in the amount of the income tax interest assessment.

The trial court denied the defendants’ motion to dismiss the complaint, finding that the complaint adequately stated causes of action for declaratory and injunctive relief. Thereafter, the trial court granted plaintiff’s motion for summary judgment, concluding that the interest assessed on the delinquent income taxes was to be construed as a “tax on or measured by net income” for purposes of calculating a credit against privilege taxes under the Insurance Code. The court held that this result was equitable because the dollar-for-dollar credit of income tax against privilege tax ensured that the State held the full amount owed by plaintiff even though the company had made the payments to the Department of Insurance rather than to the Department of Revenue. Accordingly, the court ordered that the interest assessment paid in 1987 be credited against plaintiff’s privilege tax and that the monies paid under protest be refunded. The trial court also ordered similar relief for a $171,169 interest assessment paid by plaintiff in 1988 for late payment of income tax liability for the years 1981 through 1983.

Defendants have appealed, asserting that the trial court erred in construing the interest payment as payment of income tax and in allowing plaintiff to take a credit for the interest assessments against its privilege taxes.

Section 409 of the Illinois Insurance Code requires foreign insurers doing business in this State to pay a privilege tax equal to 2% of its net taxable premium income, but allows a deduction from this tax equal to the amount paid diming the preceding calendar year as a tax on or measured by net income. (Ill. Rev. Stat. 1987, ch. 73, pars. 1021(1), (2)(b).) The Insurance Code also includes a provision for refunds of overpayments of the privilege tax, but requires that such refunds be sought within six years of the overpayment. (Ill. Rev. Stat. 1987, ch. 73, par. 1024(1).) Although the Insurance Code does not define the phrase “tax on or measured by net income,” the parties agree that this term refers to the income tax imposed by the Illinois Income Tax Act (Ill. Rev. Stat. 1987, ch. 120, par. 1—101 et seq.). The dispute in this case centers on the question of whether the interest assessments on delinquent income taxes should be included in the amount of and considered to be income tax when calculating the credit against an insurer’s privilege tax.

In construing statutes, the role of the courts is to ascertain and give effect to the intent of the legislature. (Methodist Medical Center v. Taylor (1986), 140 Ill. App. 3d 713, 489 N.E.2d 351; Indian Valley Golf Club, Inc. v. Village of Long Grove (1985), 135 Ill. App. 3d 543, 481 N.E.2d 277.) The plain meaning of the language used by the legislature is the safest guide in construing any act, and the court has no right to read into the statute words that are not found therein either by express inclusion or by fair implication. Indian Valley Golf Club, 135 Ill. App. 3d 543, 481 N.E.2d 277; Illinois Publishing & Printing Co. v. Industrial Comm’n (1921), 299 Ill. 189,132 N.E. 511.

Initially we note that the obligation to pay income tax and the obligation to pay privilege tax are separate and distinct from each other. Section 201 of the Illinois Income Tax Act imposes upon corporations an annual 4% tax on net income for the privilege of earning or receiving income in this State. (Ill. Rev. Stat. 1987, ch. 120, pars. 2— 201(a), (b)(2).) This language clearly indicates that the income tax is to be imposed upon money earned or otherwise received by the taxpayer. Section 409(2)(b) of the Insurance Code expressly states that a foreign insurer in computing its privilege tax may deduct the amount paid as a tax on net income or measured by net income during the preceding calendar year. Ill. Rev. Stat. 1987, ch. 73, par. 1021(2)(b).

By the plain meaning of the words used by the legislature, an interest assessment on delinquent taxes is neither of these. Rather, interest is assessed on overdue tax and is computed on the amount and term of the tax delinquency. Interest is not assessed on or computed by the amount of net income received by the taxpayer. The statutory language in section 409(2)(b) of the Insurance Code is clear and unambiguous and does not mention or make reference in any way to interest assessments upon delinquent income taxes. Had the legislature intended that interest on delinquent income taxes be deducted from privilege taxes, the legislature would have expressly provided for such a deduction. (Bodine Electric Co. v. Allphin (1980), 81 Ill. 2d 502,-410 N.E.2d 828.) Because an interest assessment is not based upon amounts earned or otherwise received by the taxpayer, it cannot in any way be construed as a tax on or measured by net income. Rather, it is an amount owed which must be paid in addition to the amount of the tax because the tax was not paid oii time.

In addition, interest is treated differently from the tax imposed by the Income Tax Act. The corporate income tax is assessed at an annual rate of 4% while interest is assessed at an annual rate of 9% and accrues from the date due until the tax is paid. (Ill. Rev. Stat. 1987, ch. 120, pars. 2—201(b)(2), 10— 1003(a).) No interest shall be imposed on the interest assessed on delinquent taxes. (Ill. Rev. Stat. 1987, ch. 120, par. 10—1003(c).) Consequently, we believe that the plain meaning of section 409(2)(b) allows a deduction in computing privilege tax only for actual income taxes paid during the preceding calendar year, and that interest assessments upon delinquent income taxes cannot properly be claimed as a credit against a foreign insurer’s privilege taxes.

Plaintiff asserts that section 409(2)(b) of the Insurance Code, providing for the income tax deduction in computing privilege tax, must be construed in conjunction with the Income Tax Act (Ill. Rev. Stat. 1987, ch. 120, par. 1—101 et seq.) because both statutes relate to taxation and, consequently, are in pari materia.

Specifically, plaintiff refers to section 10 —1003(b) of the Income Tax Act, which provides as follows:

“Interest prescribed under this Section on any tax, including tax withheld by an employer, or on any penalty, shall be deemed assessed upon the assessment of the tax or penalties to which such interest relates and shall be collected and paid on notice and demand in the same manner as tax. Any reference in this Act to the tax imposed by this Act shall be deemed also to refer to interest imposed by this Section on such tax.” Ill. Rev. Stat. 1987, ch. 120, par. 10-1003(b).

Plaintiff contends that this paragraph requires that the interest assessed upon its unpaid income taxes for the years 1972 through 1980 must also be included when calculating the income tax deduction to be applied against its privilege tax under section 409(2)(b) of the Insurance Code. This argument is without merit.

Only where a statute is ambiguous on its face should courts look to similar statutes as an aid to construction. (Kozak v. Retirement Board (1983), 95 Ill. 2d 211, 219, 447 N.E.2d 394, 398.) Thus, for the rule of in pari materia to be applicable, the statute to be construed must be ambiguous. Kozak, 95 Ill. 2d at 219, 447 N.E.2d at 398.

When a statute is clear, there is no reason for courts to search for the motives of the legislature to justify giving the statute a meaning different than the words of the statute indicate. (Kozak, 95 Ill. 2d at. 220, 447 N.E.2d at 399.) In the absence of an ambiguity in the statutory language, there is no reason to consider the wording of similar statutes in construing the provision before the court. Kozak, 95 Ill. 2d at 220, 447 N.E.2d at 399.

The statutory provision at issue here does not contain any ambiguous language. (Ill. Rev. Stat. 1987, ch. 73, par. 1021(2)(b).) It expressly and exclusively provides that income tax paid in the preceding calendar year may be deducted from the privilege tax due and makes no similar provision for interest assessments upon delinquent income taxes. Consequently, it was improper for the trial court to rely on any portion of the Income Tax Act in construing section 409(2)(b) of the Insurance Code (Ill. Rev. Stat. 1987, ch. 73, par. 1021(2)(b)).

However, even if it were appropriate to consider similar statutes in construing section 409(2)(b) of the Insurance Code, section 10 — 1003(b) of the Income Tax Act does not contain a definition of “tax on or measured by net income.” Section 10 — 1003(b) indicates that for collection purposes, interest is to be treated as tax. Under this statute, interest is deemed to be assessed at the same time the tax or penalty to which it relates is assessed and is to be “collected and paid on notice and demand in the same manner as a tax.” Thus, this section merely provides for the efficient collection of interest and does not mandate that every reference to income tax in any legislative enactment must also include interest assessed upon delinquent income taxes.

Section 412 of the Insurance Code provides for the refund of privilege tax overpayments within six years but does not indicate that interest is to be paid on the overpayments. (Ill. Rev. Stat. 1987, ch. 73, par. 1024.) Plaintiff was precluded from obtaining a refund on its privilege tax overpayments for the years 1972 through 1980 because the overpayments were not discovered within the requisite six-year period. Plaintiff properly paid the additional tax in 1986 and claimed it as a deduction in computing its 1986 privilege tax liability. Defendant allowed this deduction without challenge.

We do not believe that plaintiff’s overpayment of its privilege tax for the years 1972 through 1980 in any way excuses or justifies the underpayment of income taxes for those years, and we find nothing in the statute which persuades us that plaintiff should be relieved of its obligation to pay interest on the delinquent income taxes. In the instant case, plaintiff did not pay the additional tax owed for the years 1972 through 1980 until 1986. The income tax delinquency, therefore, ranged from 13 years for its 1972 liability to five years for its 1980 liability. The Illinois Income Tax statute provides that the taxpayer who fails to pay income taxes on time is liable for an additional assessment for interest based upon the amount and term of the delinquency and may also be obligated to pay penalties. (Ill. Rev. Stat. 1987, ch. 120, pars. 10—1003, 10— 1005.) If the State perceives some justification to exempt the payment of interest or penalties or to allow a credit for such amounts paid against other tax obligations owed the State, it need only adopt appropriate legislation in either the Income Tax Code or the Insurance Code. In the absence of such statutory amendment and contrary to plaintiff’s argument before this court, we do not perceive the plaintiff’s payment of interest on overdue taxes as a windfall to the State.

Moreover, we do not believe that the obligation to pay interest on delinquent income taxes should work to the benefit of a foreign insurer who also happens to owe privilege tax to this State. No other taxpayer would receive a comparable benefit, and we see no reason for disparate treatment in this regard. Consequently, we find that the statutory language of section 409(2)(b) of the Insurance Code does not provide for or permit interest assessments upon delinquent income taxes to be included in the amount of income tax to be deducted when calculating a foreign insurer’s privilege tax.

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

Reversed.

McNAMARA and RAKOWSKI, JJ., concur.


author: JUSTICE O’CONNOR JUSTICE MANNING,

text:
    SANDRA VIRZINT, Plaintiff-Appellee, v. ROBERT BERANEK, Defendant-Appellant.
    First District (1st Division)
    No. 1—87—3341
    Opinion filed September 4, 1990.

      MANNING, J., dissenting.
    Serpico, Novelle, Dvorak & Navigato, Ltd., of Chicago (William D. Serpico and Kevin J. O’Shea, of counsel), for appellant.
    No brief filed for appellee.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Defendant in this paternity action appeals from an order which found that a support order entered on December 4, 1981, was effective on January 30, 1979, when the jury’s finding of paternity was entered, rather than on December 4, 1981, when the support order was entered, as defendant had claimed. Defendant contends that the trial court’s finding that the support order was retroactive to the date of the finding of paternity was against the manifest weight of the evidence since the support order contained no provision regarding the retroactive effect of the payments and (2) the trial court had no jurisdiction to alter the court order of December 4, 1981, almost six years later.

Plaintiff commenced this paternity action on March 29, 1977, alleging that defendant was the father of a child born on January 27, 1977. On January 30, 1979, a jury found defendant to be the father. This court dismissed defendant’s appeal from that order because it was not final. (Virzint v. Beranek (1980), 85 Ill. App. 3d 919, 407 N.E.2d 701.) On December 4, 1981, the trial court entered an order requiring defendant to pay plaintiff $400 per month in support, and this court affirmed the final judgment. (Virzint v. Beranek (1983), 119 Ill. App. 3d 97, 456 N.E.2d 184.) Plaintiff brought proceedings to enforce the support order in 1984. Defendant objected because the support order was effective on December 4, 1981, and not “retroactive” to January 31, 1979. The court entered an order on October 10, 1987, finding that there was an agreement between the parties in the presence of the trial court that the support order was to be effective on January 30, 1979, and the court entered such a support order nunc pro tunc to January 30,1979.

Although plaintiff has not filed an appellee’s brief, we may decide the merits of the appeal since the record is simple and the claimed errors are such that we can easily decide them without the aid of an appellee’s brief. First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128,133, 345 N.E.2d 493.

On December 4, 1981, the trial court entered an order that defendant pay plaintiff $400 in monthly support for her and the child and $900 in medical expenses for the birth of the child. The three-page order does not state explicitly when the support payments would accrue, but the report of the proceedings shows the following colloquy after the parties had each testified and their respective counsel had argued:

“THE COURT: Well, the Court is prepared to make a decision based on what it deems the law to be, which is the maintenance and care of the child. I did take the assets of the defendant into consideration, and the Court is going to based on that is going to order $400.00 a month for the support and maintenance of this child, and thinks that’s a fair and reasonable — you may object to it, [Defense Counsel], as being excessively high and you may object to it as being excessively low but based on the evidence I heard I think that will keep the child (a) in a good relationship and maintain the child adequately and let’s see what happens. That would be my theory on this case.
PLAINTIFF’S COUNSEL: When is that effective, Your Honor[?] It’s my understanding of the law that that should be retroactive until the day of adjudication of paternity. Is there any dispute that it’s retroactive as of the date of judgment of paternity?
DEFENDANT’S COUNSEL: No, I don’t think there’s any dispute. So the record is clear, I think counsel knows we will file a notice of appeal and post the appropriate bond. Post the appropriate bond with the court.”

Despite the statement of his counsel and the above-quoted colloquy, defendant now emphasizes that the court did not address the retroactivity issue and the written order omitted any reference to it. He argues that in the circuit court judgments for child support become effective only upon the date of entry, and that plaintiff conceded in the trial court that generally an order is effective from the date of the order. However, plaintiff also argued that the transcript showed an agreement or stipulation between the parties that the order of support would be retroactive to the date of the finding of paternity. He argues that the order of October 1, 1987, could not be entered nunc pro tunc because there was no order to which it could relate back, since the support order did not mention retroactivity, citing Furth v. Furth (1972), 5 Ill. App. 3d 73, 283 N.E.2d 102. The Furth court stated that a nunc pro tunc order could be entered to supply an omission in the record of a prior order which was actually made but omitted from the record. Although the court found the form of the order was incorrect, it did not deny the power of the trial court to enter an order allowing alimony and child support to be retroactive to the date of the original divorce decree. 5 Ill. App. 3d at 76-77.

The record in this case makes clear that the parties agreed in open court concerning the retroactivity issue. In 1987 the court found that there was an agreement between the parties made in the presence of the trial court, and the support order of December 4, 1981, was made effective nunc pro tunc to January 30, 1979. As in Furth v. Furth, if this use of nunc pro tunc verbiage is inappropriate, it does not diminish the power of the court to enter a retroactive order based, as here, upon the agreement of the parties as memorialized in the transcript of the hearing before the court. Our supreme court has said that a father’s obligation to support his child begins at birth. (Gill v. Gill (1973), 56 Ill. 2d 139, 143, 306 N.E.2d 281.) When support obligations are modified, the court may order them “retroactive” to the date of the filing of the petition for modification. Fink v. Roller (1983), 113 Ill. App. 3d 1084,1089, 448 N.E.2d 204.

A judgment order must be construed with reference to the issues it was intended to decide, and it is not the form of the judgment order which is determinative but the substance and effect of the adjudication. (Weigel v. O’Connor (1978), 57 Ill. App. 3d 1017, 1027, 373 N.E.2d 421.) In determining the meaning of the judgment or decree, one must examine the situation as it existed at the rendition of the judgment. (Thomas v. Thomas (1978), 56 Ill. App. 3d 806, 808, 372 N.E.2d 679.) Defendant contends that it was the duty of plaintiff’s attorney to draft the order to include a retroactive provision. However, the parties’ agreement as stated in open court explains the omission of such a provision from the order. The order was not intended to determine retroactivity since the parties had agreed on that issue. We cannot find that the trial court’s judgment was against the manifest weight of the evidence.

Defendant also maintains that the trial court had no jurisdiction to alter the order of December 4, 1981. He contends that after 30 days, plaintiff could attack the order only under the provisions of section 2—1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—1401). However, relief after 30 days may also be granted by application of the revestment doctrine, by a finding that the order is void, by agreement of the parties or by a nunc pro tunc order. (First Bank v. Rezek (1989), 179 Ill. App. 3d 956, 958, 535 N.E.2d 20.) A court has inherent power to make amentry nunc pro tunc at any time to have the record reflect the actual order or judgment rendered. (Thiele v. Ortiz (1988), 165 Ill. App. 3d 983, 988, 520 N.E.2d 881.) The correction must be based on some note, memorandum or memorial in the file or records of the court and not on mere recollection, and the correction cannot be of a judicial error. (In re Marriage of Hirsch (1985), 135 Ill. App. 3d 945, 954, 482 N.E.2d 625.) Defendant contends that there was no note or memorandum in the files or records of the court to support the amendment, citing Lichter v. Scher (1956), 11 Ill. App. 2d 441, 446-47, 138 N.E.2d 166, but the report of proceedings here clearly supports the requirement that there be some note or memorandum in the court files or records. (In re Marriage of Hirsch, 135 Ill. App. 3d at 955.) Defendant denies that an agreement was made between the parties, but we find that the trial court’s conclusion that there had been an agreement concerning retroactivity was not against the manifest weight of the evidence. The court’s findings that there was an agreement concerning retroactivity and that a nunc pro tunc order should be entered were correct. Defendant’s child support obligation commenced on January 30,1979.

Order affirmed.

BUCKLEY, P.J., concurs.

JUSTICE MANNING,

dissenting:

I must respectfully disagree with my colleagues that the trial court’s finding of an agreement between the parties concerning retro-activity was not contrary to the manifest weight of the evidence and that a nunc pro tunc order was properly entered. The evidence relied on by the trial court to conclude that an agreement existed between the parties about retroactivity is found in a brief colloquy wherein plaintiff’s attorney asked whether there was any dispute as to the retroactive effect of the support to which defendant’s attorney responded “No, I don’t think there’s any dispute.” The record reveals no pronouncement from the court on the issue. In my view such an utterance falls far short of an agreement. Additionally, the judgment order which was entered was prepared by plaintiff’s lawyer. Certainly, if such an agreement was intended, it would have been embodied in the judgment order. It is clearly erroneous, in the absence of some memorandum or clear statement of either the court or counsel, to speculate on what the attorneys’ intent was some years ago. A nunc pro tunc order cannot be entered to supply an omission. It is a mechanism to correct the record as to something that actually occurred. It must relate back to the occurrence and that occurrence should have been memorialized in some way, i.e., written notation, memo, verbally uttered and set forth in a transcription, etc. Furth v. Furth (1972), 5 Ill. App. 3d 73, 283 N.E.2d 102, 105; Lichter v. Scher (1956), 11 Ill. App. 2d 441, 446-47, 138 N.E.2d 66; In re Marriage of Hirsch (1985), 135 Ill. App. 3d 945, 482 N.E.2d 625.

For the foregoing reasons, I would reverse the trial court.


author: JUSTICE CAMPBELL

text:
    A & A ACOUSTICS, INC., Plaintiff, v. MARK S. VALINSKY et al., Defendants-Appellees (Adler and Adler, Appellant; Chicago Title and Trust Company et al., Defendants).
    First District (1st Division)
    No. 1—88—2169
    Opinion filed September 4, 1990.

      Adler & Adler, of Chicago (Charles E. Adler, of counsel), for appellant.
    Frederick A. Lurie, of Chicago, for appellees.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Appellant, Adler & Adler (Adler), a law firm, appeals from orders entered by the trial court assessing attorney fees and costs against Adler as sanctions pursuant to section 2—611 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—611). The sole issue before this court is whether the trial court properly imposed section 2—611 sanctions. For the following reasons, the judgment of the trial court is affirmed and the cause is remanded for further proceedings consistent with this opinion.

The record indicates that on December 24, 1985, Adler filed a complaint for foreclosure of a mechanics’ lien on behalf of A & A Acoustics, Inc. (A & A), against defendants Dr. Mark Valinsky; Aaron Podiatry Associates, P.C. (Aaron Podiatry); Capitol Bank and Trust Co. of Chicago (Capitol), as trustee; E.P. Hale Lumber, Inc.; John Mandel, d/b/a Glacier Title; Ceren Plumbing & Heating Co.; Richard Shorba, d/b/a Shorba Construction Co.; R.G.C. Construction Corp. (R.G.C.); and unknown owners and unknown lienholders. This appeal relates only to defendants Valinsky, Aaron Podiatry and Capitol. The two-count foreclosure complaint alleged, inter alia, that on or about February 12, 1985, Valinsky and Aaron Podiatry were authorized by Capitol to enter into a contract with A & A for the purchase and installation of acoustical ceiling and drywall soffets at the podiatry offices; that the work was completed on April 13, 1985; and that the sum of $1,859 remained due and owing. Count I of the complaint sought foreclosure of a mechanics’ lien, and count II sought damages under the theory of quantum meruit.

In response, Capitol moved to dismiss on the ground that count I failed to allege that any named defendant had entered into a contract with A & A and count II set forth only conclusory allegations. Thereafter, Adler amended A & A’s complaint to include the language, “and did in fact enter'into said contract.” Capitol then withdrew its motion to strike and leave was granted for Capitol to file its answer.

In their answer filed on April 16, 1986, Valinsky, Aaron Podiatry and Capitol (collectively, defendants) raised the affirmative defense that on or about November 15, 1984, Valinsky had entered into a construction contract with R.G.C., as general contractor, for remodeling of the podiatry offices. Defendants further alleged that A & A’s relationship to the construction contract was subcontractor or sub subcontractor, and A & A, as a subcontractor, had failed to timely serve the statutorily required 90-day notice of lien. Defendants then moved for summary judgment on the grounds that: (1) A & A, as subcontractor, had failed to serve a 90-day notice of lien on defendants; (2) defendants never had entered into a contract -with A & A; and (3) R.G.C.’s affidavit had not contained A & A’s name or the amount A & A would be paid. Defendants attached a copy of their construction contract with R.G.C. and Valinsky’s affidavit to the motion. The affidavit stated that: Valinsky, as president of Aaron Podiatry, contracted with R.G.C., as general contractor, to remodel the podiatry offices; neither Valinsky, Aaron Podiatry, nor Capitol had entered into a written or oral contract with A & A; no work was performed on the offices after March 27, 1985; and A & A did not serve notice of its lien on defendants within 90 days of completing its work.

In reply, A & A alleged that its status as a subcontractor or contractor is a factual matter which must be decided by a trier of fact. A & A further alleged that on or about February 12, 1985, A & A had met with Valinsky and they had entered into an agreement for A & A to do the work. In addition, Valinsky had paid A & A $2,600 partial payment. A & A attached the affidavit of Burton Ames, a principal of A & A, to its reply. In the affidavit, Ames stated that he had met with Valinsky on February 12, 1985, to discuss the improvements and had reached an agreement, and Valinsky had been at the jobsite almost daily and had directed and accepted A & A’s work. As a result, the trial court denied defendants’ motion for summary judgment.

Thereafter, on September 18, 1987, following A & A’s case in chief, the trial court granted defendants’ motion for a directed verdict on the grounds that: (1) A & A had failed to establish that it was a contractor with any of defendants; and (2) A & A had failed to establish that it was in privity with any of defendants. On that same date, A & A moved orally for leave to file an amended complaint. The trial court granted A & A leave to file a written motion for the request within 30 days. There is no indication in the record that this motion was ever filed.

On October 16, 1987, defendants moved for imposition of sanetions on A & A and Adler pursuant to section 2—611 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—611), on the ground that “plaintiffs complaint contained untrue allegations that plaintiff and its counsel knew were not well-grounded in fact or warranted by existing law.”

In response, A & A argued that defendants improperly sought sanctions for a situation where A & A had merely sought the wrong remedy. A & A stated that the trial court had found that there was sufficient evidence to proceed with an action as a subcontractor. Further, A & A argued that it had investigated the case and had interviewed Robert Cimo of R.G.C., the general contractor, several times. Each time, Cimo had stated that A & A worked directly with defendants as a general contractor and was not a subcontractor of R.G.C. In addition, A & A alleged that it had established in court that defendants had paid A & A directly and that the affidavit filed by R.G.C. had not listed A & A as a subcontractor. Also, at the summary judgment hearing, defendants failed to produce any documents to establish that A & A was a subcontractor. As a result, A & A and Adler pursued the cause of action with a reasonable belief that A & A was a general contractor.

On December 28, 1987, following a hearing on defendants’ section 2 — 611 motion, the trial court granted defendants’ motion and awarded defendants $2,364.60 in attorney fees and $31 in costs. As the basis for its ruling, the trial court stated in its order:

“This court finds that the sworn allegations made by, and on behalf of, the plaintiff in the three pleadings aforementioned were made without reasonable cause and found to be untrue. The plaintiff abused its right to free access to the courts by pleading untrue statements of fact which it knew or reasonably should have known were untrue. One of the purposes of [section 2 — 611] is to prevent litigants from being harassed by actions brought against them which by their nature are vexatious, based upon false statements or brought without legal foundation. There would have been no trial but for plaintiff’s untrue pleadings. The allegations made in the pleadings were not minor misstatements, but were without factual foundation.”

The following day, December 29, 1987, Adler filed a motion, on its own behalf, to vacate the December 28, 1987, order. Defendants moved to strike the motion to vacate on the ground that it merely reiterated the arguments set forth at the section 2 — 611 hearing and failed to supply any grounds for relief. Adler was then granted leave to file an amended motion to vacate, which it did on February 2, 1988. In the interim, Adler filed a separate motion to vacate on behalf of A & A. Approximately two months later, Adler moved to withdraw as counsel for A & A, citing potential conflict in the resolution of the section 2 — 611 issue. The trial court granted the motion, and on May 3, 1988, Burton Ames, principal of A & A, filed his appearance as pro se counsel. Subsequently, on June 15, 1988, following a hearing, the trial court denied A & A’s and Adler’s motions to vacate and granted leave to defendants to file an affidavit of additional time spent and fees charged in connection with resolving the motions to vacate. On July 13, 1988, the trial court awarded defendants additional fees of $1,331.20, assessed against A & A and Adler. Adler appealed from the orders entered on December 28, 1987, June 14, 1988, and July 13, 1988. A & A is not a party to this appeal.

As previously stated, the sole issue before this court is whether the trial court properly imposed section 2 — 611 sanctions on Adler, A & A’s attorney, when no facts were present to support a contractual relationship between A & A and defendants. Initially, Adler attempts to minimize the groundless nature of his foreclosure complaint by stating that he had simply sought an improper remedy and should have proceeded under a subcontractor theory rather than a contractor theory. Adler supports this inadvertent error argument by claiming that the trial court found that he had a sufficient basis for a claim based on a subcontractor theory.

Adler’s argument that he merely sought an improper remedy and should not be penalized fails for two reasons. First, the December 28, 1987, order contains no finding as to the sufficiency of the claim under a subcontractor theory, and the record does not contain a transcript of the December 28, 1987, proceedings to verify this allegation. Second, a reasonable investigation would have revealed that a suit brought under a subcontractor theory would have been dismissed for failure to have timely filed a notice of claim pursuant to section 24 of “An Act relating to contractors’ and material men’s liens, known as mechanics’ liens.” (Ill. Rev. Stat. 1987, ch. 82, par. 24.) Section 24 requires that the subcontractor file written notice of his or her mechanics’ lien claim within 90 days after the work has been completed. A & A’s claim for lien, filed August 12, 1985, expressly states that A & A had completed its work for defendants on April 13, 1985. Thus, the notice was filed beyond the 90-day period. Timely notice of a mechanics’ lien is a condition precedent to an action to foreclose a lien, without which a subcontractor cannot recover. (Vanderlaan v. Berry Construction Co. (1970), 119 Ill. App. 2d 142, 255 N.E.2d 615.) Accordingly, a foreclosure claim brought as a subcontractor was not a viable alternative cause of action.

Section 2 — 611 requires that an attorney sign every pleading, motion and other paper filed with the court, certifying “that he has read the pleading, motion or other paper; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.” (Ill. Rev. Stat. 1987, ch. 110, par. 2—611.) If a reasonable inquiry into the facts to support the pleading has not been made to ensure that facts are well grounded, the party, the party’s attorney, or both are subject to an appropriate sanction, including payment of the other party’s attorney fees and costs. Ill. Rev. Stat. 1987, ch. 110, par. 2—611; Chicago Title & Trust Co. v. Anderson (1988), 177 Ill. App. 3d 615, 532 N.E.2d 595.

The purpose behind section 2—611 is to prevent counsel from making unsupported assertions of fact or law [In re Custody of Caruso (1989), 185 Ill. App. 3d 739, 542 N.E.2d 375) and to prevent a litigant from abusing the judicial process (Beno v. McNew (1989), 186 Ill. App. 3d 359, 542 N.E.2d 533). Section 2—611 imposes upon both client and counsel the duty to make a reasonable inquiry into the facts to support a legal claim before pleadings are filed, not after they are filed. (Chicago Title & Trust Co. v. Anderson, 177 Ill. App. 3d 615, 532 N.E.2d 595.) Whether an inquiry is reasonable depends upon the circumstances existing at the time the pleading was filed. As a general rule, however, an attorney cannot rely solely on his client’s verbal representations when additional information is available from his client or from third parties. (In re Custody of Caruso, 185 Ill. App. 3d 739, 542 N.E.2d 375.) Further, the attorney has an obligation to objectively review all information and if any discrepancies, inconsistencies or gaps appear, he must investigate further before filing. (Chicago Title & Trust Co. v. Anderson, 177 Ill. App. 3d 615, 532 N.E.2d 595.) This duty to investigate does not stop at the filing stage. An attorney has a continuing professional duty to promptly dismiss a baseless lawsuit, even over his client’s objections, when he learns he no longer has grounds for a case. (In re Custody of Caruso, 185 Ill. App. 3d 739, 542 N.E.2d 375.) Upon review, the trial court’s decision assessing attorney fees is entitled to great weight and will not be disturbed absent a showing of abuse of discretion. Beno v. McNew, 186 Ill. App. 3d 359, 542 N.E.2d 533.

In the present case, pursuant to Adler’s affidavit, his “extensive investigation” prior to filing consisted solely of an interview with Burton Ames, principal of A & A, during which Ames allegedly told Adler that A & A had a direct contract with defendants. As previously stated, a client’s assurance that facts exist does not satisfy the section 2 — 611 requirement to reasonably investigate a claim before filing. (In re Custody of Caruso, 185 Ill. App. 3d 739, 542 N.E.2d 375; Chicago Title & Trust Co. v. Anderson, 177 Ill. App. 3d 615, 532 N.E.2d 595.) After the complaint was filed, Adler allegedly met with Robert Cimo, principal of R.G.C. According to Adler’s affidavit, Cimo told him that A & A was the general contractor for all the acoustical ceiling work. Adler claims that R.G.C.’s section 5 affidavit (Ill. Rev. Stat. 1987, ch. 82, par. 5), attached to defendants’ motion for summary judgment, supports his claim that A & A was a general contractor. However, contrary to Adler’s position, R.G.C.’s affidavit does not support this claim. The section 5 affidavit, filed before the contracting work began, merely listed the various subcontractors with whom R.G.C. intended to contract for various phases of the work at the podiatry offices. The affidavit states that Carrano was to do the acoustical ceiling work, as a subcontractor. Apparently, A & A was substituted for Carrano because A & A actually did the acoustical ceiling work. At the very least, the affidavit, available at the time the complaint was filed, revealed an inconsistency or discrepancy in the facts which Adler was under a duty to reasonably investigate. (Chicago Title & Trust Co. v. Anderson, 177 Ill. App. 3d 615, 532 N.E.2d 595.) The fact that Adler was unaware of the affidavit until it was attached to defendants’ motion for summary judgment is indicative of Adler’s inadequate investigation before filing. Even after the information became known at the summary judgment stage, Adler still failed to further investigate. In re Custody of Caruso, 185 Ill. App. 3d 739, 542 N.E.2d 375.

Adler contends that defendants’ section 2 — 611 petition was deficient because it is void of any allegation that Adler had any knowledge that A & A was not a general contractor and failed to set forth that Adler’s inquiry and investigation was deficient. Contrary to Adler’s position, a petition for section 2—611 sanctions is required to only identify the statements falsely made and the fees that resulted from the false statements. (Beno v. McNew, 186 Ill. App. 3d 359, 542 N.E.2d 533.) In its section 2 — 611 petition, defendants specifically alleged that Adler’s allegation that A & A had entered into a direct contract with defendants was false. In addition, defendants attached a comprehensive account of the fees that resulted from the false statements. There is no requirement that defendants state in their section 2 — 611 petition that Adler had failed to reasonably investigate. Moreover, such a statement would be an inappropriate conclusion of law. Instead, defendants alleged the necessary facts to support a legal conclusion by the trial court that Adler had failed to reasonably investigate.

Adler further argues that the trial court had failed to investigate what facts were known to Adler at the time documents were filed or at the time of trial. Adler clearly has the delegation of the duty to investigate confused. It is Adler’s duty, not the trial court’s, to reasonably investigate. Further, the standard is known or reasonably should have known. (Chavez v. Watts (1987), 161 Ill. App. 3d 664, 515 N.E.2d 146.) Therefore, what Adler actually knew is not dispositive.

Next, Adler argues that there was no written documentation available during discovery that would dispute the allegation that A & A was a general contractor. Once again, Adler is confused about its duty to reasonably investigate pursuant to section 2 — 611. The duty arises before filing. The record contains two documents which were clearly available before filing and which either expressly dispute the allegation that A & A was a general contractor or raise an inconsistency or discrepancy which should have triggered further investigation by Adler before filing. First, A & A’s quotation for the acoustical ceiling work, dated January 26, 1985, addressed to R.G.C. and containing a signature line for R.G.C.’s acceptance of A & A’s quotation expressly disputes the allegation that A & A was a general contractor. As a general contractor, A & A would not have required R.G.C.’s acceptance; it would have required defendants’ acceptance. In addition, R.G.C.’s section 5 affidavit, which itemized the intended subcontractors, would have raised an inconsistency or discrepancy. In light of the fact that A & A was Adler’s client, it is reasonable to assume that, with reasonable investigation, Adler would at least have discovered A & A’s quotation before filing the foreclosure complaint.

In addition, Adler appears to put great weight on the fact that defendants allegedly made partial payment directly to A & A. Adler claims that this direct payment indicates that there was a contract between A & A and defendants. However, pursuant to the contract between R.G.C. and defendants, defendants had the option of making payments directly to any subcontractors. Finally, Adler’s limited relianee on case law in its brief is unpersuasive for the basic reason that every case cited predates the amended version of section 2 — 611, which significantly changed the grounds for imposition of sanctions.

Accordingly, after reviewing the record and relevant case law, we conclude that the trial court properly imposed section 2 — 611 sanctions on Adler. With respect to additional attorney fees and costs incurred in connection with this appeal, the cause is remanded to the trial court for such appropriate relief as may be necessary. See Chavez v. Watts (1987), 161 Ill. App. 3d 664, 515 N.E.2d 146.

Affirmed and remanded for further proceedings consistent with this opinion.

Affirmed and remanded.

O’CONNOR and MANNING, JJ., concur.

      Dr. Mark Valinsky is the president of Aaron Podiatry Associates, Inc., located at 159-169 Oak Park Avenue, Oak Park; and Capitol Bank and Trust Company of Chicago holds title to the property as land trustee.

      The order, dated September 18, 1987, does not include this finding, and the transcript of the trial is not included in the record.

      The record contains no exhibit or record of proceeding to verify this statement.


text:
    LESLIE PRINCIVALLI, Plaintiff-Appellant, v. THE CITY OF CHICAGO, Defendant-Appellee.
    First District (1st Division)
    No. 1—89—0192
    Opinion filed September 4, 1990.

      Beermann, Swerdlove, Woloshin & Barezky, of Chicago (Lawrence R. Barezky, Timothy M. Kelly, and Michael A. Burr, of counsel), for appellant.
    Kelly R. Welsh, Corporation Counsel, of Chicago (Ruth M. Moscovitch and Nina Puglia, Assistant Corporation Counsel, of counsel), for appellee.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Plaintiff, Leslie Princivalli, appeals from an order granting summary judgment in favor of defendant, City of Chicago, in a negligence action alleging that the city had failed to maintain a city street in a reasonably safe condition. On appeal, plaintiff contends that because she was an intended and permitted user of the city’s residential street and had been using the street in a foreseeable manner at the time she was injured, the trial court erred in ruling that, pursuant to section 3 — 102(a) of the Local Governmental and Governmental Employees Tort Immunity Act (the Tort Immunity Act) (Ill. Rev. Stat. 1987, ch. 85, par. 3—102(a)), the city owed no duty to her. For the following reasons, the judgment of the trial court is reversed and the cause is remanded for further proceedings.

The record reveals that on February 21, 1982, approximately 2:30 a.m., plaintiff, her sister, and her cousin returned home from visiting a friend. Plaintiff legally parked her car parallel to the curb across the street from her home. The driver’s side of the car was next to the curb. When plaintiff alighted from her car, she walked around the back end of the car and stepped off the curb into the street. As she was crossing the street, she accidentally stepped into a pothole and fell on her right side, landing on her elbow. Her sister, who had been walking behind her, helped her up. Plaintiff’s arm was sore when she got home, but she just took a few aspirin and went to bed. When her arm was still sore and bruised the next morning, plaintiff’s cousin drove her to the hospital emergency room where X rays were taken and it was determined that she had a comminuted fracture of the elbow. Plaintiff was then admitted to the hospital and her arm was operated on the following day. Subsequently, plaintiff had two additional operations, the first to remove a pin and the second to remove a wire.

On June 28, 1982, plaintiff filed a negligence complaint against the city, seeking damages for her injuries. On October 11, 1988, the city moved for summary judgment, arguing that plaintiff, as a jaywalker, was not an intended and permitted user of the roadway pursuant to section 3 — 102(a) of the Tort Immunity Act. Therefore, the city did not have a duty to plaintiff to maintain the roadway in a reasonably safe condition. Following a hearing on the motion, the trial court granted summary judgment in favor of the city. Plaintiff appealed.

The sole issue before this court is whether the trial court properly granted summary judgment in favor of the city. Summary judgment is proper when the pleadings, together with any depositions, admissions, affidavits and exhibits, indicate that there is no genuine issue of material fact. (Best v. Richert (1979), 72 Ill. App. 3d 371, 389 N.E.2d 894.) Upon review, the court has a duty to construe evidence strictly against a movant and liberally in favor of the opponent. The right to summary judgment must be free from doubt and determinable solely as a question of law. Hill v. Lutheran Hospital (1978), 58 Ill. App. 3d 1003, 374 N.E.2d 1147.

In the present case, plaintiff and the city each present a different issue on appeal. Plaintiff states the issue as whether the trial court erred in ruling that she was not an intended and permitted user of the city’s street when she crossed the street in mid-block to get from her legally parked car to her home. The city, on the other hand, states that the issue is whether, pursuant to section 3—102(a), the city has a duty to a pedestrian who crosses the street in mid-block outside of a crosswalk. The reason for the confusion is that the appropriate issues were not presented to the trial court in the motion for summary judgment and, therefore, necessary rulings were not made. Section 3—102(a) of the Tort Immunity Act provides:

“(a) Except as otherwise provided in this Article, a local public entity has the duty to exercise ordinary care to maintain its property in a reasonably safe condition for the use in the exercise of ordinary care of people whom the entity intended and permitted to use the property in a manner in which and at such times as it was reasonably foreseeable that it would be used, and shall not be liable for injury unless it is proven that it has actual or constructive notice of the existence of such a condition that is not reasonably safe in reasonably adequate time prior to an injury to have taken measures to remedy or protect against such condition.” (Ill. Rev. Stat. 1985, ch. 85, par. 3—102(a).)

As section 3—102(a) indicates, before a determination can be made as to whether the city has a duty toward plaintiff, the issues of whether plaintiff was an intended and permitted user of the street and, if so, whether her use of the street was reasonably foreseeable must be resolved.

Neither of these threshold issues was raised in the city’s motion for summary judgment. Instead, the city reached its own legal conclusions on these issues and presented them to the trial court as fact. Specifically, the city argued that plaintiff had been jaywalking at the time of the accident and, therefore, was not a permitted and intended user of the street. Interestingly, during oral argument, the city altered its position and admitted that plaintiff had not been jaywalking and that she was a permitted user of the street. However, the city maintained its position that she was not an intended user of the street. In our view, the entry of summary judgment on the issue of duty was premature. As stated, the questions of permitted and intended use and reasonable foreseeability must be addressed first. Without a clear resolution of these questions, the right to summary judgment is not free from doubt.

The cases relied upon by the city are distinguishable on the pivotal point that, in each of these cases, there was no question as to whether the respective plaintiff had been an intended and permitted user of the street. Vlahos v. City of Chicago (1990), 198 Ill. App. 3d 911 (plaintiff was walking to his illegally double-parked truck); Mason v. City of Chicago (1988), 173 Ill. App. 3d 330, 527 N.E.2d 572 (plaintiff admitted that she had been jaywalking); Risner v. City of Chicago (1986), 150 Ill. App. 3d 827, 502 N.E.2d 357 (plaintiff had been jaywalking); and Deren v. City of Carbondale (1973), 13 Ill. App. 3d 473, 300 N.E.2d 590 (plaintiff was struck by a car while using the roadway as a sidewalk).

For the aforementioned reasons, the judgment of the circuit court of Cook County is reversed and the cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

BUCKLEY, P.J., and MANNING, J., concur.

      The record does not contain a transcript of the proceedings.


author: JUSTICE McNAMARA

text:
    ROSEMARY O’MALLEY et al., Plaintiffs-Appellees, v. PETER A. POWELL, Defendant-Appellant.
    First District (6th Division)
    No. 1—89—1623
    Opinion filed August 17, 1990.

      Roberta Cole, of Law Offices of Joseph P. Marto, of Skokie (Sidney Z. Karasik, of counsel), for appellant.
    Law Offices of Joseph V. Roddy, of Chicago, for appellees.
   JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiffs, James and Rosemary O’Malley, filed a personal injury action against defendant Peter Powell following an automobile accident. (James is now deceased, and Rosemary is administrator of his estate.) The complaint was dismissed for want of prosecution. Plaintiffs filed a petition to vacate the default judgment pursuant to section 2—1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 —1401). The court granted the petition and reinstated the case. Defendant appeals, contending that the court abused its discretion because plaintiffs failed to use due diligence either in prosecuting their case or in filing their section 2—1401 petition; and that plaintiffs had an adequate remedy under section 3—217 (Ill. Rev. Stat. 1987, ch. 110, par. 13—217). A third party action remains pending in the trial court.

The section 2 — 1401 petition and defendant’s response, along with attached affidavits and facts of record, reveal the following facts. In June 1984, plaintiffs were passengers in a vehicle driven by third-party defendant John Halvey, when that vehicle was struck by a vehicle driven by defendant. Prior to filing suit, attorney Ellis E. Reid represented plaintiffs. When he became a judge in February 1985, Reid suggested to plaintiffs that they retain the services of attorney James D. Montgomery, Jr.

Montgomery performed legal services for plaintiffs both before and after a complaint was filed. On November 1, 1985, attorney Walter S. Clifton, Jr., filed this personal injury action on behalf of plaintiffs. The section 2 — 1401 petition states that Clifton was “at all times the attorney of record for plaintiffs” and that Montgomery was never the attorney of record.

In June 1985, Montgomery wrote several letters to an insurance company regarding plaintiffs’ case. On January 15, 1986, Montgomery sent defendant a notice of service of summons and complaint on behalf of plaintiffs.

On May 9, 1986, the trial court dismissed the case for want of prosecution (DWP). On June 13, 1986, the court granted plaintiffs’ motion, filed by Montgomery, to vacate the DWP order.

In August 1986, Montgomery again wrote to the insurer about plaintiffs’ case.

On December 11, 1986, defendant filed a motion to quash service. On February 26, 1987, Montgomery, on behalf of plaintiffs, responded. On March 3, 1987, the trial court struck defendant’s motion to quash when defendant failed to appear in court.

In April 1987, Clifton left the practice of law because of illness and moved to Urbana, Illinois. Clifton’s March 4, 1989, affidavit states that he executed a substitution of attorney form with Montgomery before leaving Chicago.

On June 1, 1987, defendant’s attorney sent a deposition notice to Clifton in Chicago.

On June 25, 1987, defendant converted his special appearance to a general appearance. Defendant filed a jury demand, an answer, interrogatories, a notice to produce, and Rule 220 (107 Ill. 2d R. 220) interrogatories, all of which defendant served on Clifton in Chicago.

The response to the section 2 — 1401 petition states that on September 4, 1987, defense counsel received a postcard notice of the pretrial hearing from the court, and that on November 2, 1987, the Chicago Daily Law Bulletin published notice of the November 4, 1987, pretrial hearing.

Defendant later filed a third-party action against Halvey. Halvey filed discovery requests addressed to Clifton and to defendant.

The section 2 — 1401 petition states further that on November 4, 1987, the case was set for pretrial “as a matter of course, and neither plaintiffs or their counsel received any notice of said pretrial and did therefore not appear.” The court entered an order dismissing the cause for want of prosecution. “Neither the court nor [defense.counsel] sent notice of this dismissal either to plaintiffs or their attorney and no proof of service of said notice was filed” as required by circuit court rule. “At no time were the plaintiffs advised of this dismissal and plaintiffs did not learn of this dismissal until March of 1989” from attorney Joseph Y. Roddy. Clifton’s affidavit states that after April 1987: “I received no notice of any pre-trial conference or notice that the matter had been dismissed for want of prosecution by Judge Bonaguro on November 4, 1987,” until Roddy telephoned Clifton on March 1, 1989.

The response to the section 2 — 1401 petition states that the dismissal order was published in the Chicago Daily Law Bulletin.

On December 13, 1987, Montgomery wrote Clifton again seeking another substitution of attorney. The section 2 — 1401 petition states: “[U]n-known to Mr. Clifton he remained attorney of record.” Clifton’s affidavit states that shortly after December 13, 1987, Montgomery wrote that the prior substitution of attorney was never filed. Clifton executed another form with Elliot Muse and returned the form.

On May 11, 1988, six months after the dismissal of the case, third-party defendant Halvey’s counsel sent notice of a firm name change to Montgomery.

In October 1988, plaintiffs spoke with Roddy about the case. Plaintiffs asked Roddy “to look into the merits of plaintiffs’ claim against defendant Powell and to consider representing plaintiffs in their claim.” On October 12, 1988, Roddy mailed Montgomery a substitution of attorney form and requested plaintiffs’ file from Montgomery.

In November 1988, Montgomery sent Roddy an incomplete file, which contained no pleadings or substitution of attorney. On February 23, 1989, Montgomery returned an unsigned substitution form to Roddy.

On March 17, 1989, Roddy, on behalf of plaintiffs, filed a section 2— 1401 petition to vacate the November 4, 1987, order.

The petition states further that on February 14, 1989, Roddy discovered the November 4, 1987, DWP order. The petition asserts: “Roddy then made numerous attempts to contact Mr. Clifton to determine if this order had ever been vacated.” After discovering it had not been vacated, Roddy filed the section 2 — 1401 petition.

On May 25, 1989, the court granted plaintiffs’ section 2 — 1401 petition, vacated the November 4, 1987, DWP order, and reinstated the lawsuit.

On appeal, defendant contends that the trial court abused its discretion. He concedes that plaintiffs sufficiently allege a meritorious cause of action, but maintains that they failed to exercise due diligence.

A successful section 2—1401 plaintiff must show a meritorious cause and the exercise of due diligence. (Smith v. Airoom, Inc. (1986), 114 Ill. 2d 209, 499 N.E.2d 1381.) The determination of whether or not to grant the petition lies in the discretion of the trial court and will not be disturbed absent an abuse of that discretion. (Smith v. Airoom, Inc., 114 Ill. 2d 209, 499 N.E.2d 1381.) Petitioner bears the burden of establishing a right to relief by a preponderance of the evidence. Smith v. Airoom, Inc., 114 Ill. 2d 209, 499 N.E.2d 1381; In re Marriage ofDuffey (1988), 168 Ill. App. 3d 1086, 523 N.E.2d 371.

If the facts alleged in a section 2 — 1401 petition are not of record, the petition must be supported by affidavits, and respondent must answer the petition’s allegations, (Ostendorf v. International Harvester Co. (1982), 89 Ill. 2d 273, 433 N.E.2d 253.) Where affidavits support the petition, the court may enter judgment if those affidavits are uncontradicted. (Ostendorf v. International Harvester Co., 89 Ill. 2d 273, 433 N.E.2d 253.) In considering a section 2—1401 petition, all uncontradicted facts in the petition and supporting affidavits are treated as true by the court. (Galligan v. Washington (1987), 163 Ill. App. 3d 701, 516 N.E.2d 894.) Thus, respondent should file counteraffidavits in support of its response to the section 2—1401 petition. (Ostendorf v. International Harvester Co., 89 Ill. 2d 273, 433 N.E.2d 253.) Where respondent places the petition’s allegations in issue with contradictory counteraffidavits, an evidentiary hearing should be held. (Ostendorf v. International Harvester Co., 89 Ill. 2d 273, 433 N.E.2d 253.) However, the parties’ waiver of the right to an evidentiary hearing permits the court to decide the motion on the affidavits. Smith v. Airoom, Inc., 114 Ill. 2d 209, 499 N.E.2d 1381.

Plaintiffs merely rely upon facts of record and the affidavit of Clifton. Defendant did not file counteraffidavits and did not request an evidentiary hearing.

Plaintiffs found themselves in a unique situation. Their first attorney, Reid, left private practice when he became a judge. Their second attorney, Clifton, left private practice after representing plaintiffs for almost two years and moved to Urbana when he was stricken with a serious illness. This was only a few months before the postcard notice of the pretrial hearing was sent by the court. The records indicate that the court had Clifton’s Urbana address, but Clifton’s uncontradicted affidavit states he received no notice of the pretrial hearing. It is clear from the petition and Clifton’s affidavit that not only was he unaware that he was still attorney of record, but also was seriously ill and retired from practice.

Defendant emphasizes that Montgomery acted as legal counsel for plaintiffs and thus must have received notice of the pretrial hearing and subsequent DWP order. Montgomery clearly handled some of the legal services both prior to, and during, a transition period. Most of the legal services he rendered, however, occurred prior to Clifton’s leaving practice. Following Clifton’s April 1987 retirement, Montgomery did have Clifton execute a second substitution of attorney form, but with Muse, an attorney plaintiffs ultimately did not hire.

Moreover, even during the earlier period when Montgomery did file court papers and write several letters on behalf of plaintiffs, defendant himself continued serving Clifton with various papers. For example, on June 24, 1987, defendant filed a jury demand, an answer, interrogatories, Rule 220 interrogatories, and a notice to produce at trial, and served these papers on Clifton in Chicago. This was only a few months before the court’s postcard notice of the upcoming pretrial hearing.

Plaintiffs must show their failure to prosecute the suit was the result of excusable mistake and that, under the circumstances, they acted reasonably and without negligence. (Smith v. Airoom, Inc., 114 Ill. 2d 209, 499 N.E. 2d 1381.) One of the guiding principles in the administration of section 2—1401 relief is that the petition invokes the equitable powers of the court, which should prevent enforcement of a judgment when it would be unfair, unjust or inequitable. Smith v. Airoom, Inc., 114 Ill. 2d 209, 499 N.E.2d 1381.

Following the unavoidable loss of two attorneys, and the continued use of Montgomery through a transition, plaintiffs, in October 1988, approached Roddy about representing them. Under the unusual and somewhat confusing circumstances presented here, we cannot say plaintiffs acted unreasonably.

We also note that defendant apparently permitted all other parties to the suit to believe that the case was still pending. For example, six months after the dismissal, Halvey, the third-party defendant, was unaware of such an order. In May 1988, Halvey sent notice of a firm name change to Montgomery at Clifton’s old address. Certainly Halvey would not do so if he were aware that the suit had been dismissed.

Defendant relies on the fact that the section 2 — 1401 petition fails to say “whether a notice of the pretrial was received by Montgomery.” (Emphasis added.) In addition, the petition fails to refer to the Law Bulletin’s constructive notice of the hearing. The section 2—1401 petition is the equivalent of a complaint. Discovery is available. (Lubbers v. Norfolk & Western Ry. Co. (1986), 147 Ill. App. 3d 501, 498 N.E.2d 357.) If respondent believes the petition fails to allege facts necessary to support relief, he should file a section 2—615 motion to dismiss. (Ostendorf v. International Harvester Co., 89 Ill. 2d 273, 433 N.E.2d 253.) Defendant did not do so. Moreover, if defendant had requested an evidentiary hearing, he could have, for example, examined Montgomery as a witness and explored the points about which he now speculates.

Defendant maintains that plaintiffs acted negligently in not following the progress of the case and being aware of the alleged negligence of Montgomery. Defendant points out that plaintiffs knew their attorney, Clifton, was ill, and thus they should have personally attended hearings or retained other counsel. A party is normally responsible for following his lawsuit and will be bound by the negligence of his attorney. (City National Bank v. Langley (1987), 161 Ill. App. 3d 266, 514 N.E.2d 508; Carroll Service Co. v. Schneider (1986), 144 Ill. App. 3d 38, 494 N.E.2d 253; Illinois Marine Towing Corp. v. Black (1979), 74 Ill. App. 3d 909, 393 N.E.2d 707.) However, as we have stated, under the unusual circumstances presented here, we do not believe that plaintiffs themselves acted unreasonably or negligently.

Finally, defendant maintains that after retaining Roddy plaintiffs were- not diligent in filing the section 2 — 1401 petition. A petitioner must show due diligence in filing the section 2—1401 petition. Bonanza International, Inc. v. Mar-Fil, Inc. (1984), 128 Ill. App. 3d 714, 471 N.E.2d 221; American Consulting Association, Inc. v. Spencer (1981), 100 Ill. App. 3d 917, 427 N.E.2d 579.

In October 1988, Roddy was approached about representing plaintiffs. He wrote to Montgomery, who sent an incomplete file, containing no pleadings and no substitution of attorney. In February 1989, Montgomery returned an unsigned substitution form. Shortly thereafter, Roddy inspected the court file, discovered the DWP order, and within a month he filed the section 2 — 1401 petition and all accompanying documentation and affidavits. Sufficient diligence was used in filing the petition.

We find that the trial court did not abuse its discretion in granting plaintiff’s section 2 — 1401 petition to vacate the earlier dismissal. Plaintiffs established their right to relief by a preponderance of the evidence.

In view of our holding, it is unnecessary to consider defendant’s additional argument that plaintiffs had a sufficient remedy under section 13 — 217 (Ill. Rev. Stat. 1987, ch. 110, par. 13 — 217), which would have permitted them to refile an action following the dismissal for want of prosecution.

For the foregoing reasons, the judgment of the circuit court of Cook County granting plaintiffs’ section 2 — 1401 petition and reinstating the case is affirmed, and the cause is remanded for further proceedings.

Judgment affirmed; cause remanded.

LaPORTA, P.J., and RAKOWSKI, J., concur.