author: PRESIDING JUSTICE MANNING

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DARREN GRAY, Defendant-Appellant.
    First District (1st Division)
    No. 1—86—1213
    Opinion filed December 26, 1989.

      Joshua Sachs, of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, Marie Quinlivan Czech, and Judith M. Pietrucha, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE MANNING

delivered the opinion of the court:

The defendant, Darren Gray, was charged by indictment with one count of armed robbery. (Ill. Rev. Stat. 1983, ch. 38, par. 18—2(a).) Prior to trial, he filed a motion seeking to allow his attorney’s participation in voir dire, or in the alternative, to have specific questions which he submitted propounded to the prospective jurors. The questions pertained to the prospective jurors’ attitudes regarding a defendant’s failure to testify. Defendant also filed a motion in limine to preclude the State from using defendant’s two prior convictions for armed robbery as impeachment in the event he testified, or alternatively, that the State be limited to impeaching by use of the two prior convictions without specifying the nature of the convictions. The court denied both motions but did agree to use the questions submitted by defendant.

Following a jury trial defendant was convicted and sentenced to the penitentiary to a term of natural life imprisonment pursuant to the Habitual Criminal Act (Ill. Rev. Stat. 1985, ch. 38, par. 33B—1 et seq.). On appeal he contends: (1) that the trial court’s failure to ask certain questions individually on voir dire to each prospective juror denied him a fair trial by an impartial jury; (2) that the trial court’s denial of his motion in limine to preclude the State’s use of prior convictions for impeachment purposes was an abuse of discretion; (3) that he was not proven guilty beyond a reasonable doubt; (4) that his right to a fair trial was denied when the State was allowed to introduce improper evidence for the sole purpose of inflaming the passions of the juror; (5) that section 5 — 8—1(a)(2) of the Unified Code of Corrections (Ill. Rev. Stat. 1983, ch. 38, par. 1005—8—1(a)(2)), which provides for mandatory life sentence, is unconstitutional; and (6) that section 33B — 1 of the Illinois Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 33B—1) is unconstitutional in that it was amended in 1980 in violation of article IV, section 8(d), of the Illinois Constitution (Ill. Const. 1970, art. IV, §8(d)).

The following pertinent evidence was adduced at trial. Nathaniel Johnson, the 65-year-old victim, testified that on February 14, 1985, he was employed at Hilltop Food and Liquors in Chicago. He stated that he arrived there at 9 a.m. and was in the process of unlocking the door of the store when he felt something at the side of his head. He turned and saw a man holding a brown-handled .38 revolver with a dark or black barrel. Johnson testified that, although he did not recognize the offender, he did see his face. The offender told him to open the door and turn on the lights. After turning off the burglar alarm, Johnson was handcuffed and a dark scarf was tied over his eyes. The offender took his car keys, the store keys and two rings from him. The offender then took him to a storeroom in the back of the store and sat him on a box. Mr. Johnson heard the offender ransack the store; and although he never saw a second man, he heard the offender speak to someone at the back of the store.

After it became quiet and Johnson had waited 10 to 15 minutes, he was able to pull the blindfold down from his face so that he could see. He walked out through the front door, where he saw Ruby Love, who lived next door to the liquor store. He asked her to call the police. At that time he noticed that his car was missing. Shortly thereafter, the police arrived and removed the handcuffs.

On April 10, 1985, Mr. Johnson viewed a lineup at the police station, where he identified Darren Gray as the man who had robbed him on February 14. Mr. Johnson identified various exhibits, including a pair of handcuffs and a gun which were similar to those used in the robbery. He also identified the defendant in court.

On cross-examination, Mr. Johnson denied that the intruder’s face was covered by a scarf or that he told this to the police. On redirect, Johnson stated that he looked at the defendant’s face and that it is not hard to recall his face.

Next, Ruby Love testified that she had lived next door to Hilltop. On February 14, at approximately 9 a.m., she was brushing snow off her car when she saw Mr. Johnson go to the house next to hers and pick up the keys to the store. She usually saw him between 8:45 and 9 a.m. She testified that she saw two men in a car stop in front of the store as Johnson was unlocking the front door. Ms. Love knew the defendant and saw him almost daily hanging out in front of the store. He was wearing a scarf which covered the bottom part of his face and a big baggy coat. She stated that she saw the defendant standing next to Mr. Johnson but did not see a gun.

After brushing the snow from her car, Ms. Love went inside for 30 to 40 minutes. When she went back outside, she saw Mr. Johnson with a scarf tied around his face and his hands handcuffed behind his back. Johnson told her he had been robbed. Ms. Love took him inside her house and called the police. However, she did not speak to the police until a couple of days later because she did not want to get involved. Thereafter, she selected defendant’s photograph from a group of pictures.

On cross-examination, Ms. Love denied identifying herself to the police as Mary Scott. She admitted telling defense investigators, eight months later, that she saw “some boys” going into the store with Mr. Johnson but denied saying that they had stockings on their faces.

Chicago police officer Daniel Sheehan testified that on the morning of February 14, 1985, he and his partner received an assignment to Hilltop Liquors. Upon arrival there he removed the handcuffs from Mr. Johnson and inventoried them with the police department. He testified that the handcuffs were stamped with the words “STOP” and “TAI-MAN.” He described the store as “a mess,” and Mr. Johnson’s condition at the time as “upset.”

On cross-examination, Officer Sheehan acknowledged that Mr. Johnson told him although there were two men at the scene, he only saw the one who put the gun to his head. The officer did not remember seeing the scarf.

Next, Richard Leftridge, one of the owners of the store, testified that he arrived at the store at 10:30 a.m., after the robbery. He was missing some liquor and cigarettes valued at approximately $400. Mr. Johnson showed him the scarf that was used as a blindfold. He immediately recognized it because he had seen the defendant, as well as his girlfriend, Ramona, wearing it. He sent his son to Ramona’s house to return the scarf.

Detective Peter Dignan testified that he spoke with the owners of the store and also interviewed Ruby Love under an “anonymous relationship” because she did not want to give her name. He returned to Ms. Love’s home three or four days after the initial interview, at which time she selected the defendant’s photograph from an array of approximately 10 photographs.

Officer Armstrong testified that he arrested the defendant on March 3, 1985, after a traffic accident in which the defendant was charged with negligent driving and driving without a valid license. As he stood next to the defendant’s car, he saw a gun in a canvass bag in the back seat. He also found ammunition, a pair of handcuffs and a calculator, which he inventoried.

Detective Joseph Danzl testified that he conducted a lineup on April 10, 1985, at which time Mr. Johnson identified the defendant as the man who had robbed him on February 14,1985.

Nacy Antoine, an investigator with the public defender’s office, testified for the defense. He stated that he and his partner interviewed Ruby Love on October 10, 1985, at which time she told them she had seen “two men going into the store with Nathaniel Johnson” who had “stockings over their faces.” He further testified that Ms. Love told him she did not like the defendant. On cross-examination, Mr. Antoine testified that he works closely with Mr. Green, defense counsel, that he had reviewed the police reports and that he had instructions from Mr. Green that these witnesses would have to be impeached.

Ramona Harrell (Ramona) testified as an alibi witness. She testified that she has known the defendant for 14 years and had been his girlfriend since 1983, except for a time in August 1984 when she dated Nathaniel Johnson. She related that on the evening of February 14, 1985, she went with the defendant, Danny Profit and a man named Edward to a small party at the apartment of Profit and Diane (Dee-Dee) Williams. They first stopped at a liquor store and later arrived at the apartment at approximately 8:30 p.m. The group remained at the apartment overnight. When Ramona awoke at 9:30 a.m. the next morning, DeeDee had left for work; but everyone else, including defendant, remained at the apartment all day, except for a trip to a liquor store in the afternoon. She testified that she left the apartment at approximately 9:30 p.m. When she arrived home she was told that someone from the liquor store had brought a scarf to their house. She denied that the scarf belonged to her.

Next, Diane (DeeDee) Williams testified. Her testimony was substantially the same as Ramona’s testimony. She related that she took everyone home the evening of February 14. On cross-examination, DeeDee stated that although her husband was employed at the time of the robbery and worked from 8 a.m. to 5 p.m., he probably did not work on February 14. She did not wake anyone before she left for work, not even the children for preschool. However, her husband must have taken them to school during the day because she remembers picking them up from school that evening. She testified that Edward is her brother and that she has known the defendant since 1979.

Gladys Harrell testified that on February 14, 1985, two men came to her house looking for her daughter, Ramona, or the defendant, saying one of them had left a scarf at the liquor store. Although she had never before seen the scarf, she took it and left it on a table by the door.

In rebuttal, Mr. Johnson testified that he had never dated or had a relationship with Ramona Harrell. On cross-examination, he denied ever having gone to a motel with her. Officer Danzl testified that when he spoke with the defendant after his arrest, the defendant did tell him about a party on the 13th of February and at the time of the robbery. However, on cross-examination, he conceded that he did not reduce the defendant’s statement to writing.

In surrebuttal, Ramona related that in September of 1984 she had been involved in a sexual relationship with Nathaniel Johnson. After closing arguments were heard and the jury was instructed, the jury returned a verdict of guilty of armed robbery. After a hearing on the State’s petition to sentence the defendant as a habitual criminal based on his two prior armed robbery convictions, the court sentenced the defendant to natural life in prison.

I

Defendant first maintains that the trial court failed to ask three voir dire questions which go to the heart of a particular bias or prejudice, and therefore, denied him a fair trial by an impartial jury.

In People v. Zehr (1984), 103 Ill. 2d 472, 469 N.E.2d 1062, the supreme court held that to insure the selection of a fair and impartial jury, the jurors should be questioned concerning the presumption of innocence, the burden of proof, and the defendant’s right to remain silent. Zehr, 103 Ill. 2d at 477.

In the instant case, prior to the jury selection, the defendant made a motion for attorney participation in voir dire, or in the alternative, to have the court question the venire from a list of written questions he submitted, which included the People v. Zehr questions. Although the motion for attorney participation was denied, the trial judge noted that he had considered the requested questions and stated “that virtually all of the questions are *** put by me to prospective jurors in each case.” The court then addressed the venire en masse, stating that Mr. Gray was presumed innocent of the charge and it was the State’s burden to prove him guilty beyond a reasonable doubt. Further, the court explained that if the State failed to prove the defendant guilty, the jury must return a verdict of not guilty and that the defendant’s failure to testify could not be held against him.

While the defendant recognizes that the court made these admonishments, he still maintains that the court did not sufficiently satisfy People v. Zehr. He maintains that failure to question prospective jurors individually or in smaller panels, coupled with the court’s generalized charge posed in a single question, was inadequate to insure the constitutional protections afforded defendants under People v. Zehr. Defendant argues this approach was inadequate to flush out the type of prejudice the People v. Zehr questions were designed to expose, citing to People v. Leamons (1984), 127 Ill. App. 3d 1056, 469 N.E.2d 1137, for the proposition that People v. Zehr dictates that any potential prejudice would be uncovered, where for example, in addition to the prevoir dire generalized charge, the court also makes specific inquiries to the individual panels.

The defendant correctly states the principles and constitutional protections the Zehr questions are intended to provide in the selection of a fair and impartial jury. However, People v. Zehr is not meant to be interpreted so narrowly. The State’s argument is more persuasive. It is clear from the record that the questions submitted by the defense counsel were addressed by the trial court. Further, the court on voir dire explained the nature of the indictment, the defendant’s presumption of innocence, the State’s burden of proof and that the jury could not hold it against the defendant if he chose not to testify on his own behalf. The court then inquired if anyone had any problems or reservations concerning any of these principles. Moreover, the court also informed the venire that they would receive instructions of the law applicable to the facts of the case. The court did in fact so instruct the jury at the close of the evidence and closing arguments. Although the People v. Zehr court did not specifically mandate the manner in which the questions should be posed, our supreme court has since held that a generalized question to the jurors as a whole is sufficient to ensure that the venire harbored no prejudices. People v. Emerson (1987), 122 Ill. 2d 411, 522 N.E.2d 1109.

In People v. Emerson, the trial judge instructed the prospective jurors in general statements that it would be their obligation to follow the law as he told them to do and inquired about their ability to do so. The prospective jurors all indicated yes. Later he discussed with them generally the principles regarding the presumption of innocence. Our supreme court determined that the trial court had complied with the requirements of People v. Zehr. Likewise, in the case at bar, the trial court addressed the venire generally and touched upon each of the People v. Zehr questions, inquiring if any prospective juror had a problem adhering to those principles. No juror indicated that he or she had any reservations about following those concepts. Accordingly, we follow the dictates of the supreme court and reject the defendant’s argument.

II

Defendant next maintains that the trial court abused its discretion when it denied his motion in limine to preclude the State from impeaching him with his two prior armed robbery convictions, or alternatively, to only allow the State to inform the jury of the unspecified prior convictions. He argues that as a result of the court’s ruling, he did not testify at trial.

The law is well settled in Illinois that a defendant’s prior conviction is admissible for impeachment purposes and proper in the exercise of sound discretion of the trial court where (1) the conviction involved a crime which is punishable in excess of one year or involves dishonesty or a false statement; and (2) the trial judge determines that the probative value of the conviction outweighs the prejudicial effect. People v. Montgomery (1971), 47 Ill. 2d 510, 268 N.E.2d 695.

In the instant case, the convictions were of felonies which were less than 10 years old. Thus, the State maintains that use of the prior convictions met the requirements set forth in People v. Montgomery. Further it asserts the crime of armed robbery relates directly to credibility and veracity. People v. Hancock (1982), 110 Ill. App. 3d 953, 955, 443 N.E.2d 226.

Conversely, defendant maintains that a trial court is required to balance the competing value of admitting a defendant’s prior conviction for impeachment against the danger of any unfair prejudice to the defendant (Montgomery, 47 Ill. 2d 510), because a jury is likely to convict a defendant based on his prior bad acts rather than the evidence introduced against him at trial. (People v. McDonald (1975), 62 Ill. 2d 448, 343 N.E.2d 489.) The defendant further maintains that the decision to admit a prior conviction for the same conduct for which defendant is on trial must.be carefully weighed by the trial court (Gordon v. United States (D.C. Cir. 1967), 383 F.2d 936), to ensure that the prejudicial effect does not outweigh introduction of the evidence which would lead jurors to the natural conclusion that “if he did it before, he probably did so this time.” People v. Siebert (1979), 72 Ill. App. 3d 895, 903, 390 N.E.2d 1322.

Defendant argues that the trial court gave absolutely no indication it was balancing the probative value of the prior convictions against any unfair prejudice that might inure to the defendant prior to denying the motion. This issue must be resolved in light of People v. Montgomery and the fact that the trial court has wide latitude in determining whether the probative value of a prior conviction outweighs any unfair prejudice to the defendant. In the case at bar, the record supports the conclusion that the facts regarding the prior convictions were presented to the judge before he made his ruling. Additionally, in response to defense counsel’s reservation that the court’s ruling would restrict Mr. Gray in his decision whether or not to testify, the judge stated that the jury would also be instructed on the limited purpose of the evidence.

The State’s argument is more persuasive, that where the defendant has failed to show any prejudice, the prior conviction involves a crime which is probative of the offender’s veracity and honesty as a witness and it is not mandatory that convictions for the same type of crime as charged in a case be precluded (People v. Spates (1979), 77 Ill. 2d 193, 495 N.E.2d 563), then the trial court committed no error in denying the defendant’s motion.

Defense counsel phrased the motion to bar the use of evidence of a prior conviction of the defendant in the alternative: “[y]ou permit Mr. Gray to testify without impeachment of any kind,” or “you permit Mr. Gray to testify and limit the impeachment.” However, a defendant’s decision whether to testify at trial cannot be used as a bargaining tool with the trial court regarding its determination to grant or deny the motion to preclude evidence of the prior convictions. The defendant’s refusal to testify, standing alone, cannot serve as the basis for a conclusion he is prejudiced. (People v. Leonard (1980), 83 Ill. 2d 411, 423, 415 N.E.2d 358.) Hence, we find defendant’s argument to be without merit.

Ill

Defendant’s next contention is that the State failed to prove him guilty beyond a reasonable doubt, maintaining that the eyewitness evidence was incredible and that his alibi testimony was unimpeached. He argues that the victim’s identification was based on no more than a fleeting glance; the testimony of the two occurrence witnesses was impeached; that the evidentiary value of the handcuffs found in his car at the time of his arrest is minimal; and that his alibi defense is believable. He further asserts that his conviction rests upon identification which does not produce an abiding conviction of guilt; and therefore, this court must reverse. People v. Kidd (1951), 410 Ill. 271, 102 N.E.2d 141.

The State counters that the identification of the defendant by the victim and his neighbor, Ms. Love, was both positive and convincing and that the alibi testimony was impeached. In addition, the cumulative effect of the physical evidence of the gun and handcuffs found in the defendant’s possession at the time of his arrest linked him to the offense.

It is well established that the testimony of one identification witness is sufficient to support a conviction (People v. Dotson (1981), 99 Ill. App. 3d 117, 424 N.E.2d 1319), as long as the witness is credible and the accused is viewed under circumstances which would permit a positive identification to be made. See People v. Manion (1977), 67 Ill. 2d 564, 571, 367 N.E.2d 1313; People v. Slim (1988), 164 Ill. App. 3d 519, 518 N.E.2d 154.

In the instant case, the victim testified that he was accosted by the defendant as he entered the store. When he turned as the gun was placed to his head, he was very close to the defendant. He was able to describe the defendant to the police immediately after the incident, identify him in a lineup two months later and make an in-court identification. Mr. Johnson described a gun which matched the description of the gun found in the defendant’s possession. Further, the testimony of Ms. Love corroborated and was consistent with that of the victim. The fact that two weeks after the robbery the defendant was in possession of a weapon and handcuffs identical in appearance to those used in the incident, coupled with positive identification of the defendant by two witnesses, was more than sufficient to establish the defendant’s guilt beyond a reasonable doubt. Further, any minor discrepancies in the witnesses’ testimony go to the weight of the testimony as evaluated by the trier of fact. People v. Mendoza (1978), 62 Ill. App. 3d 609, 615, 378 N.E.2d 1318.

IV

The defendant maintains that the admission of evidence which is offered solely to evoke sympathy or to inflame the jury is improper (People v. Bernette (1964), 30 Ill. 2d 359, 197 N.E.2d 436), and that the evidence of this nature has no relationship to guilt or innocence of the accused and only serves to prejudice the defendant. (People v. Hope (1986), 116 Ill. 2d 265, 508 N.E.2d 202.) Defendant contends that these legal principles were continually abused by the State during the trial, and the prosecutorial misconduct was so prejudicial to him that he was denied a fair trial.

The alleged improper instances of prosecutorial misconduct follow:

(1) During opening statements:
“MR. NORA [Assistant State’s Attorney]: On February 14 *** Darren Gray *** took a revolver, held it to the head of a 65-year-old man, who had already suffered three heart attacks.”
(2) During the direct examination and redirect examination of Mr. Johnson:
“Q. When the police got there, describe your physical condition to the — jury—when the police got there?
A. I was very weak and upset, very. I had three heart attacks and I was — .
MR. PATEL [Defense Attorney]: Objection.
THE COURT: Overruled.
Q. [Assistant State’s Attorney]: Tell us exactly what you-were feeling, at that time.
A. I don’t know. I know I was weak and sick.
Q. Did you take time off from work after the incident?
A. Yes.
Q. How long did you take off from work?
A. I was — it was over a week. I don’t know exactly.
Q. Have you been in combat before?
A. Yes.
Q. Tell us how many combat ribbons you got.
A. I have three silver stars and one bronze.”
(3) During the examination of Officer Sheehan:
“Q. Now, when you say he (Johnson) was upset, what did you actually observe about him?
A. Well, he was having a hard time talking, short of breath.
Q. Did he make any complaints about his physical well being, at that time.
MR. PATEL [Defense Attorney]: Objection, Judge.
THE COURT: He may answer yes or no.
A. Yes.”
(4) During closing arguments:
“MR. MORICI [Assistant State’s Attorney]: On February 14, 1985, Nathaniel Johnson, a sixty-five year old man who had three heart attacks — was just walking down the street.
MR. NORA [Assistant State’s Attorney]: A man (Johnson) who was scared and upset and who probably thinks about heart attacks every time his heart races a little bit fast.”

Defendant asserts that the only purpose served in questioning Mr. Johnson about his health or his war record was to arouse the passions of the jury, which resulted in substantial prejudice to him. The State contends that evidence elicited from Mr. Johnson regarding his physical health and age at at the time of the armed robbery was material and was not elicited solely to incite the passions of the jury. The State claims that the case at bar is distinguishable from People v. Bernette and People v. Hope, because in those cases the objectionable comments and testimony which were elicited concerned members of the deceased victim’s family. The State maintains that testimony of the victim’s physical state (1) at the time of the robbery was relevant to the issue of the victim’s credibility and state of mind and (2) immediately after the armed robbery was relevant to establish the element of force.

Although the State’s argument is persuasive and the defendant’s assertions that evidence of this nature has no relationship to the guilt or innocence of the defendant are more plausible in light of the overwhelming proof of defendant’s guilt, we find that any error which may have occurred from the prosecution’s conduct is harmless and does not warrant reversal. People v. Neumann (1986), 148 Ill. App. 3d 362, 375, 499 N.E.2d 487.

V

Defendant maintains that the mandatory life sentence provision in section 5 — 8—1(a)(2) of the Unified Code of Corrections, which prohibits the sentencing judge from considering mitigating factors in a defendant’s background, violates due process of law and the eighth amendment of the United States Constitution. He asserts that the eighth amendment requires that relevant facts and circumstances in aggravation and mitigation be considered before a defendant is permanently removed from society. (Lockett v. Ohio (1978), 438 U.S. 586, 57 L. Ed. 2d 973, 98 S. Ct. 2954; Woodson v. North Carolina (1976), 428 U.S. 280, 49 L. Ed. 2d 944, 96 S. Ct. 2978.) He also cites Solem v. Helm (1983), 463 U.S. 277, 77 L. Ed. 2d 637, 103 S. Ct. 3001, in which the United States Supreme Court held that a South Dakota recidivist statute violated the eighth amendment where Helm was sentenced to life sentence without parole after numerous nonviolent felony convictions. The defendant argues that the imposition of a life sentence is as severe a punishment as a death penalty; and when viewed in that light, the Illinois statute is unconstitutional since the defendant’s individual circumstances are not considered.

The State maintains that, contrary to the defendant’s assertions, People v. Taylor (1984), 102 Ill. 2d 201, 464 N.E.2d 1059, is dispositive of this claim. In People v. Taylor, our supreme court rejected the analogy the defendant draws between the death penalty and natural life in prison. In addition, the Lockett v. Ohio and Woodson v. North Carolina cases are distinguished, because they involve construction of death penalty statutes and cases construing death penalty statutes are of little assistance in determining the constitutionality of habitual offender statutes. See Rummel v. Estelle (1980), 445 U.S. 263, 272, 63 L. Ed. 2d 382, 389, 100 S. Ct. 1133, 1138.

In People v. Withers (1983), 115 Ill. App. 3d 1077, 1090, 450 N.E.2d 1323, 1332, this court held that the habitual offender act did not violate the eighth and fourteenth amendments because the two previous adjudications afforded the defendant an opportunity to present mitigating factors. Additionally, the Solem v. Helm decision, as noted above, involved the issue of whether the imposition of a mandatory term of life imprisonment resulted in a sentence disproportionate to the crime where the defendant’s prior offenses were six nonviolent felony convictions. Therefore, consistent with our prior decisions and in accord with our supreme court’s pronouncement in People v. Taylor, we reject the defendant’s attempt to rely on Solem v. Helm.

VI

Defendant finally argues that his life sentence must be reversed because the statute under which he was sentenced, the Habitual Criminal Act (Ill. Rev. Stat. 1981, ch. 38, par. 33B—1), was not amended in accordance with article IV, section 8(d) of the Illinois Constitution, which sets forth the procedural prerequisites for the passage of bills.

The State maintains that the defendant’s claim is without merit and posits that this court has continually rejected this identical argument.

The general rule, pursuant to the Illinois Constitution, provides that all bills submitted for approval must be read by title on three different days. In People v. Cannady (1987), 159 Ill. App. 3d 1086, 513 N.E.2d 118, the defendant raised the exact issue presented here, i.e., that the passage of the amendment to section 33B — 1 of the Habitual Criminal Act in 1980 was unconstitutional. However, the People v. Cannady court found that the three-day reading requirement was suspended by a majority of the members of the House of Representatives pursuant to its rules and therefore no violation occurred. Furthermore, the legislature and the courts have recognized that an additional exception to the rule requiring three title readings exists wherein the amendment is germane to the original bill submitted for passage. (Cannady, 159 Ill. App. 3d at 1090. See also People v. Poole (1988), 167 Ill. App. 3d 7, 520 N.E.2d 1017.) Based upon this precedent, we conclude that the aforementioned amendment was properly passed in accordance with the Illinois Constitution.

For the foregoing reasons, we conclude the defendant’s claims must fall, and we affirm the decision of the circuit court.

Judgment affirmed.

BUCKLEY and O’CONNOR, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    CARLENA MOSES et al., Plaintiffs-Appellees, v. CORONET INSURANCE COMPANY, Defendant-Appellant.
    First District (1st Division)
    No. 1—87—2536
    Opinion filed December 26, 1989.

      Beermann, Swerdlove, Woloshin, Barezky & Berkson, of Chicago (Alvin R. Becker and Steven P. Garmisa, of counsel), for appellant.
    Berman, Trachtman & Malek, P.C., of Chicago (Edward J. Malek, of counsel), for appellees.
   PRESIDING JUSTICE MANNING

delivered the opinion of the court:

This appeal arises out of the trial court’s order denying the defendant Coronet Insurance Company’s (Coronet’s) motion for summary judgment, and the trial court’s order granting plaintiffs Carlena Moses and Betty Lee Garrison’s motion for summary judgment. Coronet is also appealing the trial court’s order directing Coronet to proceed to arbitration on plaintiffs’ claims, pursuant to the uninsured motorist provisions of the insurance policy issued by Coronet.

On February 4, 1978, Carlena Moses and Betty Lee Garrison were injured in an automobile accident by a car driven by Jeffery Franzen. Mr. Franzen was insured by Security Mutual Casualty Company (Security Mutual), and the plaintiffs were insured by Coronet. On December 4, 1981, Security Mutual initiated a liquidation action. The plaintiffs became aware of Security Mutual’s insolvency in 1982 and filed a proof of claim on July 26, 1982, in accordance with liquidation requirements. On December 13, 1982, the plaintiffs were advised by representatives of Security Mutual that they must exhaust any uninsured motorist coverage with their own insurance company prior to pursuing their claims with the Security Mutual liquidator. The plaintiffs submitted an uninsured motorist claim to Coronet on December 9, 1983. Coronet denied plaintiffs’ claims, and on September 9, 1986, plaintiffs filed a petition to compel Coronet to submit to arbitration. Coronet raised as an affirmative defense that plaintiffs violated a provision of the insurance policy issued by Coronet which requires that uninsured motorist claims involving an insolvent tortfeasor insurer must be submitted within one year of the time the company becomes insolvent. Plaintiffs’ claims were not submitted until more than a year after they became knowledgeable of Security Mutual’s insolvency and more than five years after the accident. Plaintiffs responded to that affirmative defense by asserting that the one-year limitation provision included in the insurance policy is against public policy.

Coronet filed a motion for summary judgment, and the plaintiff’s filed a cross-motion for summary judgment and requested the trial court to enter an order for Coronet to submit to arbitration and to pay reasonable attorney fees and costs. The trial court denied Coronet’s motion for summary judgment and directed Coronet to proceed to arbitration of plaintiffs’ uninsured motorist claims. Summary judgment is proper where the pleadings, depositions and admissions on file, along with any affidavits, demonstrate that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Ill. Rev. Stat. 1987, ch. 110, par. 2—1005(c); Hettenhausen v. Economy Fire & Casualty Co. (1987), 154 Ill. App. 3d 488, 491, 507 N.E.2d 121; Carruthers v. B.C. Christopher & Co. (1974), 57 Ill. 2d 376, 313 N.E.2d 457.

At issue in the instant appeal is whether the one-year notice of intent provision to pursue an uninsured motorist claim contained in the insurance policy issued by Coronet is against public policy, and therefore, unenforceable. Coronet argues that the one-year limitation period to pursue an uninsured motorist claim, when the tortfeasor’s insurance company has become insolvent, is not against public policy provided that the one-year limitation provision does not begin to run until the claimant knew or should have known of the insolvency.

Plaintiffs contend that the one-year notice of intent provision contained in the policy issued by Coronet is against public policy. Therefore, the provision is void and unenforceable, resulting in the application of the 10-year statute of limitations for written contracts. Plaintiffs further contend that Coronet should be required to submit plaintiffs’ claims to arbitration.

It is well established that a clause in an insurance policy may be applied as written as long as it is not in contravention of public policy. (Menke v. Country Mutual Insurance Co. (1980), 78 Ill. 2d 420, 423, 401 N.E.2d 539; Severs v. Country Mutual Insurance Co. (1982), 89 Ill. 2d 515, 521, 434 N.E.2d 290; Strzelczyk v. State Farm Mutual Automobile Insurance Co. (1985), 138 Ill. App. 3d 346, 349, 485 N.E.2d 1230, aff'd (1986), 113 Ill. 2d 327, 497 N.E.2d 1170.) Moreover, the general rule is that when an insurer attempts to place limits on the uninsured motorist provisions of its insurance policy, the limitations must be liberally construed in favor of the policyholder and strongly against the insurer. (Hartford Acci dent & Indemnity Co. v. LeJeune (1986), 114 Ill. 2d 54, 59, 499 N.E.2d 464; Squire v. Economy Fire & Casualty Co. (1977), 69 Ill. 2d 167, 179, 370 N.E.2d 1044; Bachtell v. Illinois Farmers Insurance Group (1988), 176 Ill. App. 3d 148, 151, 530 N.E.2d 1131.) The uninsured motorist provision of the Coronet policy which is the subject of this appeal defines an “uninsured automobile” as:

“(c) an auto with respect to which there is a bodily injury liability insurance policy applicable at the time of the accident but the company writing same is or becomes insolvent subsequent to the date of an accident: providing the insured notifies the company that he intends to make a claim under this provision within one (1) year from the time any company becomes insolvent either by liquidation or rehabilitation.”

Section 143a of the Illinois Insurance Code addresses uninsured or hit-and-run motor vehicle coverage. (Ill. Rev. Stat. 1985, ch. 73, par. 755a.) Section 143a specifically requires an insurer to provide uninsured motorist coverage which extends to individuals who may be entitled to recover damages for bodily injury or death from persons who own and operate uninsured motor vehicles. (Severs, 89 Ill. 2d at 518.) The purpose of this statute is to place the policyholder in substantially the same position he would have occupied, so far as his injury or death is concerned, if the wrongful driver did have the minimum liability insurance required by the Illinois Safety Responsibility Law, previously known as the “Financial Responsibility Act” (Ill. Rev. Stat. 1985, ch. 951/2, par. 7—203; Hettenhausen, 154 Ill. App. 3d at 492; Squire, 69 Ill. 2d at 176). Although the one-year provision in Coronet’s policy limits the time within which notification of a claim must be made, section 143a, the applicable statute which requires the policy to have an uninsured motorist provision, does not state a limit as to when an uninsured motorist claim may be brought. (Severs, 89 Ill. 2d at 518-19.) Moreover, our supreme court has held that the purpose underlying this statute “cannot be circumvented by the insertion of a contrary or restricting provision in an insurance policy.” Severs, 89 Ill. 2d at 520.

It is well settled that in bringing an uninsured motorist claim, if the applicable statute fails to specify a period within which an uninsured motorist claim is required to be brought, then the action is governed by the statute of limitations for filing a contract action. (Shelton v. Country Mutual Insurance Co. (1987), 161 Ill. App. 3d 652, 656, 515 N.E.2d 235; Murphy v. United States Fidelity & Guaranty Co. (1983), 120 Ill. App. 3d 282, 285, 458 N.E.2d 54; Burgo v. Illinois Farmers Insurance Co. (1972), 8 Ill. App. 3d 259, 264, 290 N.E.2d 291; Hartford Accident & Indemnity Co. v. Holada (1970), 127 Ill. App. 2d 472, 480-81, 262 N.E.2d 359.) In the instant case, plaintiffs paid an additional premium to receive uninsured motorist coverage. Therefore, plaintiffs’ actions which are based upon their contract with the insured for uninsured motorist coverage must be governed by the 10-year statute of limitations applicable to contract actions. Ill. Rev. Stat. 1985, ch. 110, par. 13—206.

The one-year limitation was directly addressed in Coronet Insurance Co. v. Ferrill (1985), 134 Ill. App. 3d 483, 481 N.E.2d 43. In Coronet Insurance Co. v. Ferrill, we concluded that “[t]he one-year limit serves no notice purposes other than to limit Coronet’s liability.” (Ferrill, 134 Ill. App. 3d at 486-87.) Specifically, the court found that the provision “impermissibly limits the time within which the policyholder may assert the insolvency of his opponent’s insurer to one year, whether the policyholder knows of it or not.” Ferrill, 134 Ill. App. 3d at 487.

The one-year limitation provision was also extensively addressed in Burgo v. Illinois Farmers Insurance Co., where the court determined that if the practical effect of the one-year limitation provision is to deny the insured of the contracted uninsured motorist coverage, which the statute requires, then the provision is deemed to be void and without effect. (Burgo, 8 Ill. App. 3d at 263.) Moreover, the court concluded that a one-year limitation provision set forth in an insurance policy “is a dilution or diminution of the uninsured motorist statute and is an attempt to defeat the intent and the purpose of the statute; therefore, it is against public policy and the statute must prevail.” (Burgo, 8 Ill. App. 3d at 264; see also Hartford Accident & Indemnity Co. v. Holada (1970), 127 Ill. App. 2d 472.) The court in Burgo v. Illinois Farmers Insurance Co. further held that the policy provision which limits an arbitration demand to one year after the accident is arbitrary, unreasonable, capricious and void as against the public policy of the State of Illinois. Burgo, 8 Ill. App. 3d at 264.

While the court in Coronet Insurance Co. v. Ferrill examined in dicta an analogy of the discovery rule as it pertains to the one-year notice period requirement, we believe that the one-year limitation provision is overly restrictive and violates the public policy set forth in the Illinois Insurance Code (Ill. Rev. Stat. 1987, ch. 73, par. 755a). Therefore, based upon the circumstances involved in the present case, we conclude that the trial court correctly denied Coronet’s motion for summary judgment, since as a matter of law Coronet had a duty to pay uninsured motorist benefits to the plaintiffs. We further conclude that the trial court was correct in granting the plaintiffs’ motion for summary judgment and directing Coronet to proceed to arbitration of plaintiffs’ uninsured motorist claims.

Accordingly, for the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.

CAMPBELL and O’CONNOR, JJ., concur.


author: JUSTICE BUCKLEY

text:
    STEEL CITY NATIONAL BANK OF CHICAGO, as Trustee, Plaintiff-Appellant, v. J.J. WRIGHT OLDSMOBILE, INC., Defendant-Appellee.
    First District (1st Division)
    No. 1—88—2873
    Opinion filed December 26, 1989.

      Ruff, Weidenaar & Reidy, Ltd., of Chicago (Edward P. Freud, of counsel), for appellant.
    Herbert Lesser, of Chicago, for appellee.
   JUSTICE BUCKLEY

delivered the opinion of the court:

This appeal from the circuit court of Cook County arises from a forcible detainer action brought by Steel City National Bank of Chicago, as trustee under trust No. 2556 (plaintiff), to recover possession of commercial real estate leased to defendant J.J. Wright Oldsmobile, Inc. (Wright Oldsmobile). The circuit court entered judgment for Wright Oldsmobile following a hearing, and plaintiff appeals from this judgment.

The facts here are not in dispute. On March 31, 1975, Skorberg’s of Crystal Lake, Inc. (Skorberg), owner of the premises at 17220 Torrence Avenue in Lansing, Illinois, leased the property to a corporate entity, J.J. Wright Motor Company (Wright Motors), for a 15-year term from the date of occupancy, occurring on or about June 1, 1975, with the option to renew the lease for two additional terms of five years each. Wright Motors was incorporated on January 23, 1923, in the State of Illinois, but was involuntarily dissolved by the Secretary of State of Illinois on December 29, 1969, for nonpayment of the franchise tax.

On July 7, 1975, subsequent to the execution of the lease, John A. Wright executed a “Memorandum of Lease and Assignment” to transfer Wright Motors’ rights under the lease to Wright Oldsmobile. Wright executed the agreement as president of both Wright Motors and Wright Oldsmobile, the latter entity incorporated in the State of Illinois on May 9, 1975. Skorberg consented to the transfer as follows:

“The Landlord hereby consents to the assignment of the lease by the Tenant to the Assignee, but upon the express condition that neither such consent nor the collection of rent from the Assignee shall be deemed a waiver or relinquishment for the future of the covenant against assignment or subletting, nor shall the acceptance of the Assignee as tenant be construed as releasing the Tenant from the full performance of the provisions of the lease.”

Subsequently, Skorberg went into bankruptcy, and First Federal Savings & Loan Association of Lansing, Illinois (First Federal), filed a mortgage foreclosure proceeding in the circuit court of Cook County. Wright Oldsmobile, as a party in possession, was made a defendant in that action. On June 6, 1979, the circuit court entered a “Decree of Foreclosure.” Included in the decree was a finding that the lease dated March 13, 1975, between Skorberg and Wright Motors, subsequently assigned to Wright Oldsmobile, was “in full force and effect.” First Federal was the successful bidder at the foreclosure sale, and plaintiff in 1983 became a later successor to that interest.

On May 23, 1988, plaintiff, claiming the existence of a month-to-month tenancy, served Wright Oldsmobile with a 30-day notice to terminate the tenancy. On July 18, 1988, plaintiff filed the instant forcible detainer proceeding. In its answer to plaintiff’s complaint, Wright Oldsmobile claimed that it was lawfully in possession of the premises pursuant to the unexpired lease executed in March 1975.

Plaintiff’s claim here, as well its claim before the circuit court, is that the March 1975 lease is invalid because Wright Motors lacked capacity to contract as a corporation since it had previously been administratively dissolved as a corporation. Before reviewing the circuit court’s findings as to plaintiff’s claim, we must first address defendant’s contention that plaintiff’s claim is moot due to an order entered in the circuit court during the pendency of this appeal.

Subsequent to the hearing in this action, a petition to vacate the dissolution order was filed in the circuit court. The court vacated the dissolution order and restored Wright Motors to good standing “with such powers, authority and franchises as it has and was authorized to exercise prior to the entry of such Decree.” Defendant contends that this order renders plaintiff’s claim moot because the order restores full corporate power to Wright Motors as of the date of its dissolution.

Plaintiff initially responds that our consideration of this court order would violate the established principle of appellate review that a reviewing court may consider only documents and arguments pertinent to the appellate record. (See McCutcheon v. Chicago Principals Association (1987), 159 Ill. App. 3d 955, 513 N.E.2d 55.) This argument overlooks the fact that the question we confront is whether to exercise our appellate jurisdiction in this case. The duty of an appellate court in exercising its power of review is confined to consideration of actual controversies and not to opine upon moot questions or to declare principles of law which cannot affect the matter in issue in the case before the court. (Johnson v. Quern (1980), 90 Ill. App. 3d 151, 412 N.E.2d 1082; Dear v. Dear (1967), 87 Ill. App. 2d 72, 230 N.E.2d 385.) Where circumstances exist which render the issue on appeal moot, the appeal will be dismissed even though such facts do not appear in the record. Johnson, 90 Ill. App. 3d at 155, 412 N.E.2d at 1085.

While we reject plaintiff’s argument as to the impropriety of our consideration of the court order, we nonetheless agree with plaintiff that the order does not render the issues here moot. The order provides that Wright Motors is restored to good standing, but it does not explicitly state that the acts of the officers or directors purporting to act in the capacity of a corporation are ratified and confirmed. Defendant apparently bases its contention that the order ratifies the officers’ actions on the fact that the Illinois Business Corporation Act of 1983 (the Act) (Ill. Rev. Stat. 1987, ch. 32, par. 1.01 et seq.) provides an administrative procedure whereby such a result may be attained. Section 12.45 of the Act provides that if certain administrative procedures, including the payment of past-due fees, are followed within five years following the date of the dissolution, the corporate existence will be “deemed to have continued without interruption from the date of the issuance of the certificate of dissolution *** and all acts and proceedings of its officers, directors and shareholders, acting or purporting to act as such, which would have been legal and valid but for such dissolution, shall stand ratified and confirmed.” (Ill. Rev. Stat. 1987, ch. 32, par. 12.45.) The reinstatement here, however, was not, and could not have been, obtained by this administrative procedure. Because the order does not state that the acts of the officers are ratified or confirmed, we cannot conclude that the order renders the issues in this appeal moot.

Reviewing now the circuit court’s findings as to plaintiff’s claim that the March 1975 lease is invalid, we note that the circuit court stated that it was not ruling that the nonexistent corporation in March 1975 formed a valid contract or that the nonexistent corporation had the legal capacity to assign its interest. The court instead held that (1) the foreclosure proceeding was res judicata as to the question of the validity of the lease; (2) a novation occurred between the legal successor in interest, Wright Oldsmobile, and the lessor under the written agreement in July 1975; and (3) the doctrine of equitable estoppel barred plaintiff from claiming the invalidity of the lease. We affirm the circuit court’s judgment on two of these bases.

Under the doctrine of res judicata, a final judgment on the merits rendered by a court of competent jurisdiction is conclusive as to the rights of the parties and their privies, barring any subsequent action involving the same claim, demand or cause of action. (Housing Authority v. YMCA (1984), 101 Ill. 2d 246, 461 N.E.2d 959; People v. Kidd (1947), 398 Ill. 405, 75 N.E.2d 851.) The judgment is conclusive not only as to every matter offered to sustain or defeat the claim or demand, but as to any other matter which might have been offered for that purpose. Housing Authority, 101 Ill. 2d 246, 461 N.E.2d 959; Barry v. Commonwealth Edison Co. (1940), 374 Ill. 473, 478, 29 N.E.2d 1014.

In the case at bar, the decree entered in the foreclosure proceeding, in which defendant was joined as a party defendant and plaintiff’s predecessor as plaintiff, included the determination that “[t]he lease dated March 31, 1975 *** is still in full force and effect.” No dispute exists here as to the finality of the judgment, the jurisdiction of the court, or the identity of the parties. Nor is there any question that plaintiff’s predecessor could have raised and litigated the issue as to the validity of the lease in the foreclosure proceeding. This latter dimension of res judicata, however, applies only where the first and second suit involve the same cause of action. (Pfeiffer v. William Wrigley Jr. Co. (1985), 139 Ill. App. 3d 320, 322, 484 N.E.2d 1187, 1189; Fountas v. Breed (1983), 118 Ill. App. 3d 669, 673, 455 N.E.2d 200, 204.) It is this element of res judicata which plaintiff claims has not been satisfied here because the first action was a foreclosure proceeding, whereas the instant case is a claim for possession of the premises.

While a plethora of cases have addressed the question of whether proceedings involve the same cause of action for res judicata purposes,, we believe our supreme court’s decision, in Housing Authority for La Salle County v. YMCA (1984), 101 Ill. 2d 246, 461 N.E.2d 959, is most analogous to the situation here. The judgment in issue in Housing Authority was a default judgment entered against the Housing Authority’s predecessor in title in a condemnation action brought by the Federal government to condemn an easement to certain property. The action sought to be barred was a suit to quiet title to the property brought by the Housing Authority against a defendant whose predecessor in title was joined as a codefendant in the condemnation action. In confronting the issue of whether the case before it involved the same claim or cause of action, the supreme court stated that a decree operates as res judicata of the claim presented in a later action when the facts and relief sought in both actions “are substantially the same.” (Housing Authority, 101 Ill. 2d at 254, 461 N.E.2d at 963; Midlinsky v. Rubin (1930), 341 Ill. 378, 385, 173 N.E. 368, 371.) It noted that the court in the condemnation proceeding had the power to determine among competing claimants the ownership of the condemned land and that the government joined as defendants all competing claimants in order to litigate their conflicting claims. The court then reasoned that the same cause of action existed because both cases involved the claim of title to disputed property and the object of each case was to ascertain the true owner of the property. Housing Authority, 101 Ill. 2d at 252-54, 461 N.E.2d at 962-63.

Similarly, the court in the foreclosure proceedings here had the power to determine the legal interests, including the possessory interests, of all competing claimants in the real estate, and defendant was joined for that purpose. Both cases involve the claim of a possessory interest in the property, and the object of each case was to ascertain the parties’ legal interests in the property. The circuit court, therefore, properly concluded that the same claim or cause of action existed and correctly applied the doctrine to bar plaintiff’s claim.

Another independent ground also exists here to sustain the circuit court’s judgment. Although we believe that the circuit court erred in holding that a novation occurred notwithstanding the question of the validity of the previous lease, we find that the court correctly held that plaintiff is equitably estopped from denying the validity of the lease. The doctrine of equitable estoppel is a doctrine developed in equity to prevent a party from asserting rights where the assertion of those rights would work a fraud or an injustice on another party. (Launius v. Najman (1984), 129 Ill. App. 3d 498, 472 N.E.2d 170.) The numerous cases attempting to define the doctrine reveal that the circumstances in each particular case must be considered to determine whether honest dealing requires that the party be estopped. E.g., Carey v. City of Rockford (1985), 134 Ill. App. 3d 217, 480 N.E.2d 164; Tyska v. Board of Education (1983), 117 Ill. App. 3d 917, 453 N.E.2d 1344.

The necessary elements under the doctrine most commonly cited are some representation or conduct on the person sought to be estopped, reliance by another, and prejudice or injustice to that person. (Payne v. Mill Race Inn (1987), 152 Ill. App. 3d 269, 504 N.E.2d 193; Old Security Life Insurance Co. v. Continental Illinois National Bank & Trust Co. (7th Cir. 1984), 740 F.2d 1384; Sponemann v. Country Mutual Insurance Co. (1983), 120 Ill. App. 3d 211, 457 N.E.2d 1031.) Plaintiff maintains in the instant case that the circuit court erred in applying the doctrine because the record does not demonstrate any fraudulent conduct or intent on plaintiff’s part or any good-faith reliance on defendant’s part.

The fraud element under the doctrine of estoppel, as distinguished from the concept of waiver, focuses on the effect of a party’s conduct on the opposing party, rather than on the intent of the party being estopped. (Bledsoe v. Carpenter (1987), 163 Ill. App. 3d 823, 516 N.E.2d 1013.) It is not necessary in the equitable estoppel context that there be fraud in the strict legal sense or that the party have the intent to mislead or deceive; it is sufficient if a fraudulent effect would follow upon allowing a party to set up a claim inconsistent with his former conduct. (Beynon Building Corp. v. National Guardian Life Insurance Co. (1983), 118 Ill. App. 3d 754, 455 N.E.2d 246; First Savings & Loan Association v. Kern (1977), 55 Ill. App. 3d 838, 370 N.E.2d 1326; Cessna v. Montgomery (1976), 63 Ill. 2d 71, 344 N.E.2d 447; Dill v. Widman (1952), 413 Ill. 448, 109 N.E.2d 765.) We believe that the fraud element has been satisfied in the case at bar. Allowing plaintiff to claim the invalidity of the lease due to Wright Motors’ incapacity to contract where it has accepted rents under the lease for five years, and its predecessor for eight years, would have a fraudulent and unjust effect.

We also believe that the element of detrimental reliance has been satisfied here. The estoppel doctrine has often been applied to prevent a person from asserting the invalidity of an agreement where the person has accepted the benefits of the agreement. (See Ego Oil Co. v. Garner (1983), 115 Ill. App. 3d 82, 450 N.E.2d 375; Cashman v. Shinn (1982), 109 Ill. App. 3d 1112, 441 N.E.2d 940.) Defendant here has relied on plaintiff’s or its predecessor’s acceptance of the contract’s benefits by fulfilling its rental obligation under the lease for over 13 years.

Finally, plaintiff’s assertions as to defendant’s lack of good faith are unpersuasive. Defendant’s knowledge of the invalidity of Wright Motors’ corporate status did not result in any injustice here, as Wright Motors’ corporate status was a matter of public record, Wright Oldsmobile was in fact an existing corporation at the time of the transfer, Skorberg intended to extend a lease to an existing corporation, and plaintiff succeeded to the property containing a leasehold with that valid corporate entity. Accordingly, we find that the circuit court did not err in holding that plaintiff is equitably estopped from denying the validity of the lease.

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

Affirmed.

MANNING, P.J., and CAMPBELL, J., concur.

      One of the essential elements of a novation is a previous, valid obligation. Aluminum Co. v. Home Can Manufacturing Corp. (1985), 134 Ill. App. 3d 676, 480 N.E.2d 1243; Phillips & Arnold, Inc. v. Frederick J. Borgsmiller, Inc. (1984), 123 Ill. App. 3d 95, 462 N.E.2d 924.


author: JUSTICE HARTMAN

text:
    MANOR HEALTHCARE CORPORATION, Plaintiff-Appellant, v. SOILTEST, INC., et al., Defendants-Appellees.
    First District (2nd Division)
    No. 1—88—3178
    Opinion filed December 26, 1989.

      Keck, Mahin & Cate, of Chicago (James J. Casey and Jill E. Evans, of counsel), for appellant.
    Winston & Strawn, of Chicago (Harold C. Wheeler and George C. Lombardi, of counsel), for appellees.
   JUSTICE HARTMAN

delivered the opinion of the court:

Plaintiff, Manor Healthcare Corp. (Manor), sought a judicial declaration that the maker of a “Contingent Promissory Note” (Note), Soiltest, Inc. (Soiltest), and a related entity, Engineering Laboratory Equipment, Ltd. (ELE), or either of them, had been “sold, liquidated, merged, abandoned, discontinued, disaffiliated or otherwise disposed of.” Manor also prayed for monetary “non-contingent” proceeds under the Note, plus interest, costs, and attorney fees, from Soiltest and John Mowlem & Co. PLC (Mowlem PLC), as guarantor.

Manor filed a motion for summary judgment claiming certain events had rendered 40% of the principal balance due under the Note fixed and noncontingent. Soiltest and Mowlem PLC (defendants) filed a cross-motion for summary judgment, asserting that the noncontingent provisions had not been triggered and no default had occurred. The circuit court denied Manor’s motion and granted partial summary judgment in favor of defendants. From that ruling, Manor appeals. The issue raised here is whether, under the terms of the Note, certain transactions occurring within a corporate reorganization rendered a portion of the Note fixed and noncontingent.

Mowlem PLC, a corporation organized under the laws of the United Kingdom, is principally involved in international construction, property development, and mechanical engineering. In 1961, Mowlem PLC formed ELE as a subsidiary to provide materials testing and other technical services to the construction industry. ELE’s business was concentrated in Europe, the Middle East, Africa, and the Far East.

In 1980, Mowlem PLC began negotiations with Cenco Medical Industries (Cenco) for the purchase of Soiltest, then a Cenco subsidiary. The acquisition of Soiltest was intended to give Mowlem PLC a “significant presence” in the United States and other international markets where ELE was not active. Soiltest’s material testing products complemented those of ELE “in areas where American as opposed to British testing standards apply.” Mowlem PLC formed a wholly owned subsidiary, Ciro Acquiring, Inc. (Ciro), specifically to acquire Soiltest.

On July 2, 1980, Ciro executed the Note with a face amount of $1,100,000 in favor of Cenco, as partial consideration for the transfer and sale of Soiltest common stock by Cenco to Ciro. The Note was issued pursuant to a prior agreement for the purchase of Soiltest dated February 3, 1980. The "final deal” involved four different agreements. Mowlem PLC guaranteed payment of any unpaid installments of principal and interest on the Note that would become due and payable upon default by the payor. Manor, the successor in interest to Cenco, is the current payee under the Note.

Defendants submitted the affidavit of Frederick E. Worth, a Mowlem PLC negotiator for the purchase of Soiltest, with their cross-motion for summary judgment. He averred that Mowlem PLC discovered Soiltest’s profits had “fallen dramatically” in the previous year. Concerned about Cenco’s asking price, the parties agreed to an “earn out” as a compromise; according to Worth, the parties understood the “earn out” to provide that Mowlem PLC would pay further consideration to Cenco if Soiltest’s profits exceeded predetermined levels. Cenco was concerned about the implementation of the “earn out” provision, because ELE and Soiltest were in similar businesses and Mowlem PLC could lessen the amounts due under the provision by diverting potential Soiltest profits to ELE. Cenco also hoped that the profit-making potential of ELE and Soiltest would be greater when part of the same company than if they remained separate. According to Worth, Mowlem PLC agreed that payments under the “earn out” would be tied to the combined profits of ELE and Soiltest, although Cenco had no affiliation with ELE.

Section 2 of the Note, entitled “Conditions to Payment of Principal and Interest,” provides in part:

“On each Payment Date, interest accrued hereon to and including the preceding December 31, shall be payable but only to the extent that Annual Net Income (as hereinafter defined) for the fiscal year ending on such December 31 (on a non-cumulative basis) exceeds $2,500,000 (the ‘Threshold’).
Installments of principal *** shall be payable on any Payment Date only to the extent of 75% of the excess of Annual Net Income (on a non-cumulative basis) for the fiscal year most recently preceding the year of such Payment Date over the sum of (i) the Threshold, (ii) the amount of interest payable by [Ciro] hereunder on such date by reason of the provisions of this Section 2, and (iii) the amount of interest payable by [Ciro] on such date on that certain Four Year Note of [Ciro] dated July 2, 1980, delivered to the payee pursuant to the Agreement * * *
‘Annual Net Income’ for any fiscal year shall mean the aggregate of (i) the consolidated pre-tax net income of Soiltest, Inc., an Illinois corporation, or any corporation *** which succeeds to substantially all of its business and assets, and its subsidiary, Houghton Manufacturing Company *** and (ii) the separate pre-tax net income of Engineering Laboratory Equipment Ltd. (ELE), an English corporation (so long as ELE remains an affiliate of [Ciro] or Soiltest) ***.”

Amounts due under the Note would remain contingent until the threshold was exceeded by combined Soiltest and ELE profits. In another affidavit submitted in support of defendant’s cross-motion for summary judgment, Michael L. Bryant, vice-president of Soiltest, averred that this amalgamation of Soiltest and ELE profits resulted in payment under the “earn out” only once.

According to Worth, the parties contemplated instances when the profits of ELE and Soiltest could not be combined, as where the two companies were no longer affiliated or if one went out of business. In such case, section 2, in paragraph 4 (Paragraph 4) of the Note, provides:

“If, however, either ELE or Soiltest (or any substantial part of either out of the ordinary course of business) is sold, liquidated, merged, abandoned, discontinued, disaffiliated or otherwise disposed of, in that event 40% of the then outstanding principal balance of this Note shall become firm and shall no longer be contingent; provided, however, that this paragraph shall not apply to a merger or liquidation of Soiltest into [Ciro] * * * >>

According to the succeeding provision (Paragraph 5), the remaining 60% of the outstanding principal balance would continue as contingent, except the threshold would be reduced by $1.5 million if ELE, or $1 million if Soiltest, was subject to such changes set forth in Paragraph 4.

Paragraph 6 of the Note contains the following provision:

“In the event of a transaction which results in a third party succeeding to substantially all the assets and businesses of [Ciro, now Soiltest] and ELE, [Soiltest] shall require that the acquiring entity assume [Soiltest]’s obligations hereunder, and [Soiltest] shall not enter into any such transaction prior to the maturity hereof unless such acquiring entity shall have a net worth (immediately after giving effect to the acquisition) equal to at least twice the sum of the outstanding principal amounts (fixed or contingent) of this Note, the Four Year Note and the ‘Note’ as defined in the Agreement.”

On December 15, 1980, Ciro merged with Soiltest, its wholly owned subsidiary pursuant to the purchase from Cenco, and changed the corporation’s name to Soiltest, Inc. This merger was provided for in Paragraph 4 of the Note and did not trigger the contingency provisions. Prior to the merger, Ciro was a wholly owned subsidiary of John Mowlem, Inc. (J.M. Inc.), as was Mowlem Engineering Products, Ltd., now Mowlem Technology, Inc. (Technology, Inc.). J.M. Inc. was a subsidiary of Mowlem Technology Ltd. (Technology Ltd.), which in turn was a subsidiary of Mowlem PLC.

In 1983, Mowlem PLC decided to put its materials analysis business under a “unified management team.” In October 1985, Mowlem PLC incorporated Buehler International, Inc. (Buehler International), as its indirect wholly owned subsidiary; Mowlem PLC then reorganized its material analysis subsidiaries (including ELE and Soiltest) into a holding company structure with Buehler as the parent. It was Mowlem PLC’s belief that the reorganization would permit consolidation of marketing, coordination of research and development efforts, and better development of its materials analysis equipment division.

Pursuant to the reorganization, in November 1985, Technology Ltd., owner of ELE, transferred 100% of its shares in various subsidiaries, including ELE, to newly created Buehler Europe Ltd. (Buehler Europe), in exchange for shares in Buehler Europe. Technology Ltd. then transferred all of the shares of Buehler Europe to Buehler Holdings, Inc. (Buehler Holding), a wholly owned subsidiary of Buehler International, for approximately $10 million. Also, Technology, Inc., exchanged 100% of its shares of Soiltest and other companies to Buehler International, in return for 4 million shares of Buehler International stock. Both Soiltest and ELE thereby became subsidiaries of Buehler International.

On December 24, 1985, over 1.2 million shares of Buehler International common stock, representing 24% of its outstanding shares, were offered to the public. Technology, Inc., retained 76% of the shares.

Manor subsequently received the 1985 annual report from Buehler International, which described the transfer of Soiltest from Technology, Inc., to Buehler International and the $10 million transferred to Mowlem PLC for 100% of ELE. In a letter dated July 2, 1986, Manor declared that Soiltest and ELE were “sold” by virtue of the intracompany transfers; it demanded from Soiltest the payment of $280,000, representing the portion which it claimed due and owing under Paragraph 4 of the Note by reason of such sales.

In a letter to Manor dated July 18, 1986, Soiltest denied that Paragraph 4 of the Note was activated by the corporate reorganization and insisted the Note remained contingent; further, it claimed that no amounts were due. Considering Soiltest’s refusal to make payment a default, Manor, on September 15, 1986, made a demand for payment upon Mowlem PLC as guarantor of the Note. Mowlem PLC refused payment, referring Manor to Soiltest’s letter of July 18.

According to Bryant’s affidavit, the corporate reorganization of the Mowlem PLC companies in 1985 did not affect the affiliation of Soiltest and ELE, or the relationship of Soiltest and ELE to Mowlem PLC; by the reorganization “Mowlem transferred both [Soiltest and ELE] from one subsidiary within the Mowlem family to another.” Worth, in his affidavit, averred that “so long as ELE and Soiltest are within the same corporate family, they are affiliated, their profits can be combined for purposes of the Note and no contingent amounts become due. Neither [Mowlem PLC] nor Cenco intended to make contingent amounts due and owing merely because of a corporate reorganization which required the intracompany transfer of stock within [Mowlem PLC].”

On October 3, 1988, after argument on the motion and cross-motion for summary judgment, the circuit court granted defendant’s and denied Manor’s motion, simply stating:

“Okay. Many times I have to rule in instances where it’s very close questions [sic], but I’m going to rule for the Defendant, against the Plaintiff.”

Manor appeals.

Manor contends that the noncontingent provisions of Paragraph 4 were invoked by the “sale” or “other disposition” of Soiltest and ELE during Mowlem PLC’s reorganization. Manor concludes 40% of the outstanding balance on the Note became firm and noncontingent, and therefore, Soiltest as payor and Mowlem PLC as guarantor are liable for that amount.

Defendants maintain the circuit court accurately interpreted the Note as a whole and gave effect to the language and intent of the contracting parties in denying Manor’s claim that the reorganization required resort to the provisions of Paragraph 4. As noted, the court did not state its reasons for its ruling; however, as defendants observe, they may support the judgment with any arguments and upon any basis appearing in the record, and we must sustain a correct decision for any reason or grounds appearing in the record. Peters & Fulk Realtors, Inc. v. Shah (1986), 140 Ill. App. 3d 301, 307-08, 488 N.E.2d 635.

In construing terms of a contract, the primary objective is to give effect to the intent of the parties, which should be determined from the language employed. (Srivastava v. Russell’s Barbecue, Inc. (1988), 168 Ill. App. 3d 726, 730, 523 N.E.2d 30.) Clear and unambiguous terms in the contract must be given their ordinary and natural meaning. (Srivastava, 168 Ill. App. 3d at 730; Purolator Security, Inc. v. Wells Fargo Alarm Service (1986), 141 Ill. App. 3d 1106, 1111, 491 N.E.2d 161.) In determining the intent of the parties, the contract must be interpreted as a whole, giving meaning and effect to every provision thereof (St. John v. City of Naperville (1987), 155 Ill. App. 3d 919, 923, 508 N.E.2d 1128); its various terms should be construed harmoniously throughout the document (Long Grove Country Club Estates, Inc. v. Anderson (1977), 47 Ill. App. 3d 449, 454, 362 N.E.2d 374). Where the terms of a contract are plain and unambiguous, the intent of the parties must be ascertained solely from the instrument itself (AZL Resources, Inc. v. Bromagen (1979), 79 Ill. App. 3d 76, 80, 398 N.E.2d 292); extrinsic evidence will not be considered. (See Berutti v. Dierks Foods, Inc. (1986), 145 Ill. App. 3d 931, 934, 496 N.E.2d 350.) A contract will be considered ambiguous where the language employed reasonably can be interpreted in more than one sense. (Srivastava, 168 Ill. App. 3d at 732.) Terms in a contract are not rendered ambiguous simply because the parties do not agree upon their meaning. (Srivastava, 168 Ill. App. 3d at 732; White v. White (1978), 62 Ill. App. 3d 375, 379, 378 N.E.2d 1255.) In the case at bar, the circuit court did not make an express finding regarding the document’s ambiguity. Despite differing interpretations of the Note, both parties suggest its terms are unambiguous. We agree.

According to its clear terms, Paragraph 4 applies when either Soiltest or ELE is disposed of in a designated manner. When activated, this paragraph provides that 40% of any outstanding principal balance becomes firm and noncontingent. Paragraph 6 applies to any transaction wherein a third party succeeds to substantially all of the assets of both Soiltest and ELE, and assigns two obligations to Ciro (now Soiltest) in the event of such a transaction: (1) Soiltest shall require the acquiring third party to assume Soiltest’s obligations under the Note; and (2) Soiltest shall not enter such a transaction unless the acquiring third party meets certain financial criteria. These paragraphs are clear and unambiguous; by their ordinary and natural meaning, they apply to two distinct circumstances.

These provisions can be construed harmoniously. Under the terms of Paragraph 6, a third party which acquired both Soiltest and ELE would assume all obligations under the Note. These obligations would include those imposed by Paragraph 4, in the event the acquiring third party disposed of either ELE or Soiltest, as well as the affirmative covenants in Section 3, which require the transmittal of certain financial information concerning both Soiltest and ELE to the payee under the Note. Construing the Note as a whole, particularly in light of the “earn out” and both Paragraphs 4 and 6, the reasonable interpretation of the agreement is that the parties intended to combine ELE and Soiltest profits for the determination of payment due under the Note so long as such combination was practical. Paragraph 6 insures that an acquiring third party will assume such an obligation, including the financial reporting requirements; Paragraph 4, on the other hand, provides the method to determine payment due under the Note when the profits of ELE and Soiltest can no longer be combined for purposes of the “earn out.” These provisions protect the payee under the Note if one or both companies are disposed of, yet allow Soiltest the freedom to engage in such transactions if desirable.

Indeed, Manor admits in its reply brief that Paragraph 6 imposes upon an acquiring third party the obligation to combine the net income of Soiltest and ELE to determine payments due to the payee under the “earn out” provisions of the Note. Manor also recognizes that this paragraph protects the payee under the Note against the possibility that the acquiring third party might operate the companies in favor of ELE and to the detriment of Soiltest, thereby reducing or eliminating payments due under the Note. We disagree, however, with Manor’s assertion that Paragraph 6 itself acknowledges that the non-contingent provisions of Paragraph 4 would have been triggered by a third-party acquisition of both companies.

By its express terms, Paragraph 4 does not apply to a transaction wherein both companies are disposed of; it is implicated only by a transaction wherein either ELE or Soiltest is disposed of. In essence, Manor asks this court to substitute “and” for “or” in Paragraph 4. The words “and” and “or” ordinarily are not commutual terms; they should not be considered interchangeable absent strong supporting reasons. (Chicago Land Clearance Comm’n v. Jones (1957), 13 Ill. App. 2d 554, 559, 142 N.E.2d 800.) Since Paragraphs 4 and 6 can be interpreted consistently with one another without changing the expressed wording, no basis exists for a substitution of “and” for “or.”

As a result of the corporate reorganization, Buehler International, a third party, succeeded to substantially all the assets of Soiltest and ELE. Since both Soiltest and ELE were involved, Buehler assumed the various obligations imposed by the Note, including the responsibility to combine profits of both companies for purposes of calculation under the “earn-out”; the alternative method of payment detailed in Paragraph 4, which would be necessary if either ELE or Soiltest individually was sold, was not mobilized. Therefore, as correctly found by the circuit court, 40% of the outstanding principal balance did not become fixed and noncontingent.

Manor’s argument, that such an interpretation means Paragraph 4 would not be triggered “as long as what happens to one company happens to the other,” misconstrues the language of the agreement and purpose behind Paragraph 4, which was intended to provide protection for the payee under the Note in the event that the profits of ELE and Soiltest no longer could be combined. If both Soiltest and ELE were liquidated, as posited by Manor, Paragraph 6 would not be implicated since no third party would “succeed to substantially all the assets” of both companies. Further, a combination of profits would be impossible, and the noncontingent provisions of Paragraph 4 would be applied. Nowhere does the Note suggest that if the “status quo remains the same” between the companies, Paragraph 4 would never be put into operation; however, Paragraph 6 is implicated when both Soiltest and ELE are acquired by a third party.

Manor next suggests that an intracompany transaction was intended to fall within Paragraph 4, in reliance upon an express exclusion in the contract of the Ciro-Soiltest merger. Manor observes that this merger was the only intracompany transaction explicitly excluded from invoking the noncontingent provisions of Paragraph 4; it concludes that “[t]he expression in a contract of one or more things of a class implies the exclusion of all not expressed.” (Suga v. Suga (1962), 35 Ill. App. 2d 355, 359, 182 N.E.2d 922.) If only Soiltest or only ELE was transferred by an intracompany reorganization, the noncontingent provisions would have been activated. Indeed, the merger of Soiltest with Giro would have launched Paragraph 4 absent the aforementioned exclusion, since only Soiltest, and not ELE, was involved. As noted above, however, both Soiltest and ELE were acquired by Buehler in the reorganization. Even were this court to adopt Manor’s contention that an intracompany reorganization constituted a “sale” or “other disposition” for purposes of the Note, under the circumstances of this case, Paragraph 4 was not implicated.

In a footnote, Manor also disputes defendants’ claim that both companies were sold by Mowlem PLC to the same third party; it claims that Soiltest and ELE were “sold separately, at different times, by different parent companies,” and ultimately, to different parties: Buehler International and its subsidiary, Buehler Holding. In reviewing the transaction as a whole, ELE and Soiltest became subsidiaries of Buehler International pursuant to the comprehensive corporate reorganization of Mowlem PLC. Such a transaction, considered in broad perspective, is in harmony with the Paragraph 6 language of the Note, and allows the profits of ELE and Soiltest to be combined. Any other characterization of Mowlem PLC’s actions exalts form over substance and disregards the intent of the parties as determined from the Note as a whole.

The circuit court correctly found that the payments requested by Manor did not become due and owing under the Note. Summary judgment was granted properly for defendants, and must be affirmed.

Affirmed.

SCARIANO and DiVITO, JJ., concur.

      The original maker of the Note, Ciro Acquiring Co. (Ciro), after merger with Soiltest, changed its name to Soiltest before suit.

      See footnote 1 for explanation of name change.


author: PRESIDING JUSTICE FREEMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Respondent-Appellee, v. MICHAEL PITTMAN, Petitioner-Appellant.
    First District (3rd Division)
    No. 1—87—2028
    Opinion filed December 27, 1989.

      Randolph N. Stone, Public Defender, of Chicago (Alvin A. Stokes, Assistant Public Defender, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, Kenneth T. McCurry, and Mark A. Shlifka, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE FREEMAN

delivered the opinion of the court:

Petitioner, Michael Pittman, appeals from the dismissal of his petition for post-conviction relief. The petition, which was dismissed without an evidentiary hearing, was based on the allegation of ineffective assistance of counsel at trial. On appeal, petitioner contends that dismissal was improper because conflicting affidavits presented a factual dispute which could only be resolved by an evidentiary hearing. We affirm.

Following a bench trial in the circuit court of Cook County, petitioner was convicted of robbery and was sentenced to a term of three to nine years’ imprisonment in the Illinois Department of Corrections. Petitioner appealed his conviction, whereupon this court affirmed. (People v. Pittman (1978), 62 Ill. App. 3d 295, 379 N.E.2d 112.) Subsequently, petitioner filed a petition under the Post-Conviction Hearing Act (Ill. Rev. Stat. 1985, ch. 38, par. 122—1 et seq.) at which time counsel was appointed on his behalf.

In his petition, petitioner alleged that his constitutional rights had been violated due to ineffective assistance of counsel at trial. Specifically, petitioner claimed that at trial he was identified as the perpetrator in a robbery which occurred on August 29, 1976. According to him, on the date of the robbery, he was incarcerated in the Illinois Department of Corrections, Youth Division, and therefore, he could not have been the perpetrator. Petitioner informed his privately retained attorney of this fact. However, defense counsel neither conducted an investigation, nor did he raise it as an alibi defense at trial. Petitioner maintains that defense counsel’s conduct prejudiced his case and that, but for this prejudicial conduct, he would not have been convicted.

The petition, though accompanied by petitioner’s affidavit attesting its truth, was unsupported by any other affidavits. The State filed a motion to dismiss the petition. Petitioner’s trial attorney, who had also represented him on appeal, filed an affidavit in which he stated that he had not known of defendant’s alibi defense until the filing of the post-conviction petition, and had he known, he would have conducted an investigation. A certificate of compliance with Supreme Court Rule 651(c) (107 Ill. 2d R. 651(c)) appears in the record. An assistant public defender filed an affidavit of a court reporter which stated that he was unable to locate the stenographic notes for two of the four dates of defendant’s robbery trial. Additionally, an affidavit was filed on behalf of the clerk of the circuit court which stated that only a portion of the appellate court record could be located.

On June 24, 1987, the trial court conducted a hearing on the petition. Petitioner’s court-appointed attorney stated that there were no amendments to the petition. The trial court granted the State’s motion to dismiss. Petitioner now appeals, contending that the trial court was required to conduct an evidentiary hearing to resolve the factual dispute presented by the conflicting affidavits.

The Post-Conviction Hearing Act provides a remedy for violation of substantial constitutional rights at trial. (Ill. Rev. Stat. 1985, ch. 38, par. 122-1; People v. Cihlar (1986), 111 Ill. 2d 212, 216, 489 N.E.2d 859.) In order to require a hearing, the petitioner must substantially show that there was a violation of a constitutional right. (People v. Silagy(1987), 116 Ill. 2d 357, 365, 507 N.E.2d 830, cert. denied (1987), 484 U.S. 873, 98 L. Ed. 2d 163, 108 S. Ct. 212; People v. Arbuckle (1969), 42 Ill. 2d 177, 246 N.E.2d 240; People v. Carrion (1974), 21 Ill. App. 3d 195, 315 N.E.2d 251.) Such a showing must be based on factual allegations rather than conclusory statements. (People v. Hysell (1971), 48 Ill. 2d 522, 527, 272 N.E.2d 38.) A petitioner is not entitled to an evidentiary hearing on his petition as a matter of right. (People v. Albanese (1988), 125 Ill. 2d 100, 115, 531 N.E.2d 17, cert. denied (1989), 490 U.S. 1075, 104 L. Ed. 2d 652, 109 S. Ct. 2088; People v. Ford (1981), 99 Ill. App. 3d 973, 426 N.E.2d 340.) Rather, it is the function of the post-conviction pleadings to determine whether the petition is entitled to a hearing. (People v. Clements (1967), 38 Ill. 2d 213, 216, 230 N.E.2d 185.) Where the trial court determines that the allegations of the petition are sufficient to require a hearing, the petitioner must be afforded an opportunity to prove his allegations. (People v. Airmers (1966), 34 Ill. 2d 222, 226, 215 N.E.2d 225.) On review of dismissal of a petition, an appellate court must determine whether petitioner has alleged sufficient facts to require an evidentiary hearing. (People v. Redmond (1986), 146 Ill. App. 3d 259, 262, 496 N.E.2d 1041.) In making that determination this court must necessarily look to allegations contained in the petition, construed liberally in favor of petitioner and as set forth in light of the record and transcript. People v. Wise (1975), 26 Ill. App. 3d 158, 160, 331 N.E.2d 302.

Petitioner first argues that the fact that a counteraffidavit was filed was an improper basis for dismissing the petition. Our review of the transcript reveals that the trial court, in dismissing the petition, stated that petitioner had failed to meet his burden to sustain the allegations in the petition. Clearly, the court’s basis for dismissal was not merely that a counteraffidavit had been filed.

Petitioner next argues that the fact that a counteraffidavit was submitted makes it clear that a factual dispute exists, and therefore, an evidentiary hearing was required. He relies on People v. Wegner (1968), 40 Ill. 2d 28, 237 N.E.2d 486, and People v. Brumas (1986), 142 Ill. App. 3d 178, 491 N.E.2d 773, as support. The state argues that the petition was properly dismissed because the counter-affidavit clearly and unequivocally refuted petitioner’s allegations. We reject the State’s reasoning. Our supreme court has held that a motion to dismiss a post-conviction petition assumes the truth of allegations to which it is directed and questions only their legal sufficiency. People v. Wilson (1968), 39 Ill. 2d 275, 277, 235 N.E.2d 561.

The State correctly distinguishes Wegner on the basis that the defendant’s petition in that case was accompanied by an affidavit from the defendant’s mother. However, this distinguishing factor carries little weight to defeat petitioner’s argument in favor of an evidentiary hearing. We note that the Wegner court relied on an earlier case, People v. Sigafus (1968), 39 Ill. 2d 68, 233 N.E.2d 386, wherein the petitioner presented no supporting affidavit. In Sigafus, the court stated:

“The conflicting representations of the petitioner and the prosecutor created a factual issue as to the claimed occurrence upon which the record casts no helpful light. When a claim of substantial constitutional denial is based on assertions beyond the record it is contemplated by the Post-Conviction Hearing Act that evidence be taken. (See People v. Airmers, 34 Ill. 2d 222, 226.) Here, no evidentiary hearing was held. None of the three persons who allegedly formed the bargain pursuant to the claimed promise were called to testify nor were present at the proceedings had on the petition.
*** We deem that this allegation can be determined to be truthful or otherwise only through an evidentiary hearing, at which the petitioner, the prosecutor and petitioner’s trial counsel can give testimony.” (39 Ill. 2d at 70-71.)

Like in Sigafus, the Wegner court held that the conflicting representations of the petitioner and the prosecutor created a factual issue, and that the truth or falsity of the allegation could only be determined through an evidentiary hearing. (Wegner, 40 Ill. 2d at 31-32.) At the hearing the credibility of the testimony could be weighed by the trial judge. (Wegner, 40 Ill. 2d at 32.) Similarly, in Brumas, the trial judge was confronted with defendant’s affidavit containing allegations of ineffective assistance of counsel, and the State’s motion to dismiss, which was supported by affidavits of defendant’s trial attorneys and an undercover agent alleging facts in contradiction to the defendant’s affidavit. (Brumas, 142 Ill. App. 3d 178.) The trial court dismissed the post-conviction petition without an evidentiary hearing. On review, the appellate court held that the affidavits filed by the parties presented a factual conflict which required an evidentiary hearing. Brumas, 142 Ill. App. 3d 178.

Moreover, in People v. Washington (1967), 38 Ill. 2d 446, 451, 232 N.E.2d 738, in addressing the issue of whether the right to an evidentiary hearing was precluded by the fact that the petition was not accompanied by the required supporting affidavits, the supreme court held that the petition itself was a sworn statement by the accused, and that in the absence of anything in the record disputing the allegations, he was entitled to a hearing to determine their truth or falsity. Finally, in People v. Williams (1970), 47 Ill. 2d 1, 4, 264 N.E.2d 697, the petitioner alleged that his constitutional rights had been violated because of misrepresentations which had been made to him by his attorney. The State contended that the petition was insufficient to entitle the petitioner to a hearing because it was not accompanied by supporting affidavits. The court, in rejecting the State’s argument, stated that the only affidavit that the petitioner could possibly have furnished, other than his own sworn statement, would have been that of his attorney who allegedly made the misrepresentation to him, and that the difficulty in obtaining such an affidavit was self-apparent. The court noted that to so strictly construe the Post-Conviction Hearing Act as to require, in that case, an accompanying affidavit would be to defeat the purpose of the Act by denying the petitioner a hearing on the factual issues raised by the pleadings. However, the court cautioned that it did not, in any case, intend to lessen the duty of the petitioners to make a substantial showing of a violation. “[T]he allegations of mere conclusions to that effect under oath will not suffice.” (Williams, 47 Ill. 2d at 4. See also People v. Nesbitt (1972), 5 Ill. App. 3d 123, 238 N.E.2d 294.) Thus, we must conclude that, as a general rule, an evidentiary hearing may be necessary to determine the truth or falsity of conflicting affidavits and the absence of supporting documentation will not necessarily doom the petition.

However, where the State moves to dismiss a post-conviction petition, the court must necessarily focus upon the sufficiency of the allegations in the petition and any supporting documents. (People v. Stepheny (1970), 46 Ill. 2d 153, 157, 263 N.E.2d 83; People v. Ortiz (1974), 22 Ill. App. 3d 788, 317 N.E.2d 763.) If the allegations and supporting documents were true and would establish a constitutional violation, the trial court must hold a hearing to determine the actual facts. (People v. Smith (1985), 136 Ill. App. 3d 300, 303, 483 N.E.2d 655.) NonmeritoriouS petitions may be dismissed without a hearing on the basis of what is contained in the petition and what is revealed in the record of the trial or other proceedings. People v. Spicer (1970), 47 Ill. 2d 114, 118, 264 N.E.2d 181.

We have examined some cases wherein the courts have found the petition to be legally insufficient to withstand a motion to dismiss. In Smith (136 Ill. App. 3d 300, 483 N.E.2d 655), the petitioner, in his post-conviction petition, alleged ineffective assistance of counsel. According to the petitioner, his attorney failed to call, as an alibi witness, his wife, whom petitioner was with at the time of the commission of the offense. Petitioner admitted that his attorney had explained his reason for not calling the wife. Petitioner failed to present any supporting documents showing the potential testimony of the alibi witness, and thus, the court held that the statements in his petition were insufficient to require an evidentiary hearing. (136 111. App. 3d at 303.) Similarly, in the case at bar, petitioner has failed to provide the court with any supporting documentation from either the Youth Division, or from persons with knowledge of his incarceration which would tend to support his allegation.

In People v. Phillips (1989), 183 Ill. App. 3d 417, 539 N.E.2d 804, the petitioner filed a petition and an accompanying affidavit in which he alleged ineffective assistance of counsel at the hearing on the entry of his guilty plea. Petitioner asserted that his attorney, the public defender, was inadequate because he was appointed for that hearing and consulted with the petitioner for only five minutes prior to the hearing. The trial court found the petitioner’s affidavit to be insufficient in that it did not allege specific facts capable of rebutting the record of the plea hearing in which the petitioner indicated that he was satisfied with the investigation by the public defender. (Phillips, 183 Ill. App. 3d at 423.) While in the case at bar no record of the proceedings at trial is available to the court, we note that in the recitation of the facts contained in the appellate court decision (Pittman, 62 Ill. App. 3d at 297), there was positive testimony from a police officer who stated that he knew petitioner and that he had seen him a few days prior to the August 29 robbery. Further, the statements in the petition itself suggest the possibility that he might not have been confined at the Youth Division on the date of the robbery. According to the petition, petitioner was incarcerated from March 3, 1976, through September 1976. During that period, he was absent from the Youth Division from May 4, 1976, through May 27, 1976, and again on September 1, 1976. Like in Phillips, petitioner did not provide sufficient evidence capable of either rebutting the facts contained in the appellate court opinion or to defeat the inference in his petition that he might have been on leave from the Youth Division at the time of the robbery. Further, in light of the police officer’s testimony, we find it incredible that information concerning petitioner’s incarceration would not have been adduced at trial, and if it were not, we find it even more incredible that petitioner continued to have his privately retained attorney represent him on appeal.

Where the post-conviction petition and any supporting documents are legally sufficient to support the allegations in the petition, an evidentiary hearing would be required to resolve any factual disputes. Assuming, in the instant case, that the facts set out in the petition are true, we believe that petitioner has failed to present sufficient evidence in support thereof. The court properly dismissed the petition, despite the fact that there were conflicting affidavits.

For the foregoing reasons we affirm the order of the circuit court.

Affirmed.

RIZZI and CERDA, JJ., concur.