author: JUSTICE REINHARD

text:
    DONALD DELNICK, Plaintiff-Appellant, v. OUTBOARD MARINE CORPORATION, Defendant-Appellee (Jean Delnick, Plaintiff).
    Second District
    No. 2—89—0716
    Opinion filed May 18, 1990.

      Gregory A. Stayart, of Romanyak & Miller, of Chicago (James A. Romanyak, of counsel), for appellant.
    Donald J. O’Meara, T. Patrick Rice, D. Kendall Griffith, and Dawn L. Haghighi, all of Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago, and Robert E. Pederson, of Outboard Marine Corporation, of Waukegan (Joshua G. Vincent, of counsel), for appellee.
   JUSTICE REINHARD

delivered the opinion of the court:

Plaintiff, Donald Delnick, filed a four-count complaint in the circuit court of Du Page County seeking damages against defendant, Outboard Marine Company, for injuries arising out of his use of a Lawn-Boy self-propelled lawn mower manufactured by defendant. Count I presented a claim for negligent design and manufacture based on res ipsa loquitur. Count II alleged negligence in the design and manufacture of the mower and the failure to provide adequate warnings concerning use of the mower. Count III, based on strict liability, alleged defective design and manufacture and failure to warn. Count IV, brought by plaintiff’s wife, sought damages for loss of consortium.

Defendant successfully moved for summary judgment on count I, and count IV was voluntarily dismissed. Following a jury trial, verdicts against plaintiff were returned on counts II and III.

The following issues are raised by plaintiff on appeal: (1) whether the trial court erred in failing to instruct the jury on the issue of res ipsa loquitur; (2) whether the jury’s finding that the statute of re-' pose applied to plaintiff’s strict liability claim was against the manifest weight of the evidence; (3) whether section 13 — 213(b) of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 13 — 213(b)) is unconstitutional; (4) whether the trial court erred in instructing the jury on assumption of risk; (5) whether the trial court abused its discretion in excluding certain evidence; (6) whether the trial court erred in permitting defendant to impeach plaintiff; (7) whether defendant’s counsel’s closing argument was improper and prejudicial; (8) whether the trial court erred in failing to submit a general verdict form to the jury; and (9) whether the trial court erred in denying plaintiff’s motion for judgment notwithstanding the verdict.

Plaintiff was the only witness to the occurrence giving rise to his injuries. According to plaintiff, he purchased his Lawn-Boy lawn mower, to the best of his recollection, in the summer of 1976. On cross-examination, plaintiff’s deposition was introduced wherein he stated that he purchased the mower in either 1973 or 1974.

Plaintiff also admitted to having read the entire owner’s manual. The manual, which was introduced into evidence, contained warnings to never leave the operator’s position while the engine is running and to not walk in front of a self-propelled mower. It further stated that all nuts and bolts should be periodically checked and tightened before using the mower. The manual contained no specific warnings regarding potential malfunctions of the self-propelled mechanism of the mower.

Prior to the date of the accident, plaintiff took the mower in once to have the pull cord replaced and once for a checkup. About one month prior to the accident, he took the mower to a local hardware store for service. He testified that to his knowledge the mower had never been altered.

Plaintiff described how the self-propelled drive mechanism is engaged. According to plaintiff, a knob must be pulled sideways and a rod is pulled backward to engage the drive mechanism. To disengage the drive, the process is reversed.

On the left side of the handle of the mower is a device called a “clamp screw.” Plaintiff, on a few occasions, had to tighten the clamp screw when it loosened or became dislodged. According to plaintiff, when the clamp screw was loose or dislodged the self-propelled mechanism did not work. Plaintiff admitted that it was important to keep the clamp screw tight but that he did not check it the day of the accident.

On May 28, 1986, sometime after 6:30 p.m., plaintiff began cutting his grass with his lawn mower. While cutting the southern perimeter of his rear lawn in an easterly direction, plaintiff observed some irises leaning over into the projected path of his mower. At that point, plaintiff disengaged the self-propelled mechanism by pulling the handle forward until the “little white knob” clicked into place. Plaintiff then went to where the irises were, bent down on his left knee, put his left foot behind him, and began to move the irises away from the path of the mower. The lawn mower was not moving, but the engine was running when plaintiff left the operator’s position. According to plaintiff, the yard is level and flat at the point where he left the mower.

Plaintiff estimated the distance between where he knelt down and the front of the mower to be four or five feet. As plaintiff moved the irises, he felt a hot, wet sensation in his left foot. He went from a kneeling position to a sitting position, saw the lawn mower, and kicked it with his right foot. Plaintiff then observed that his left foot had been lacerated by the mower. Plaintiff did not see the lawn mower move after he disengaged the drive mechanism. Medical testimony establishes that plaintiff lost four of his toes on his left foot as a direct result of the accident.

On cross-examination, plaintiff was asked if he was approximately three feet from the birdbath at the point he stopped the mower, to which he replied that he did not recall ever saying how far he was from the birdbath. Defense counsel then read from defendant’s deposition wherein he was asked “Within how many feet of the birdbath?” to which plaintiff answered “three.” Plaintiff responded that if it is in the deposition, it must be his answer.

Plaintiff also answered “yes” when asked if he was three or four feet from the mower when he knelt down. Plaintiff also admitted that he did not know if the side or the front of the mower came into contact with his left foot.

Plaintiff further admitted on cross-examination that he raised and lowered the height of the wheels some years before without adjusting the clutch control rods as required by the manual.

Mr. Joseph K. Adelman, a mechanical engineer and consultant, testified for plaintiff. He inspected plaintiff’s mower on two occasions, reviewed the owner’s manual, and obtained the American National Standards Institute (ANSI) specifications applicable to plaintiff’s mower.

According to Adelman, during his first inspection, the mower’s drive mechanism would engage on its own if the clamp screw was not tight. Adelman opined that the mower was unreasonably dangerous due to the design of the clutch rod mechanism which relies on the owner to keep the clamp screw tightened. He also criticized the owner’s manual as not bringing “out up front the need, the importance, the significance of tightening that clamp screw.”

Adelman inspected the mower a second time because he discovered from defendant’s expert’s deposition that the mower should have a torque lug spring which it did not have during his first inspection. Adelman then requested and received a spring for a 1972 model Lawn-Boy from plaintiff’s attorney and installed it on plaintiff’s mower. Plaintiff’s mower, although made in 1972, is considered a 1973 model. Adelman tested the clutch rod mechanism 10,000 times, and the spring held up. Adelman further opined that the spring could break during 10 years of normal usage and that the spring he received was shorter than the one described in Lawn-Boy’s mechanical drawings which would cause it to come out of its notch on the mower during its usage.

Adelman described the spring’s function as insuring that the drive mechanism will return to neutral even if the clamp screw is loose. The owner’s manual is silent as to the spring, nor does the mower contain any warnings regarding the spring. Adelman opined that there should have been a warning as to the need to have the spring in place and its significance to the operation of the drive mechanism.

On cross-examination, he admitted that the drive mechanism will not engage even without the spring if the lock-out clip and clutch rod are in the proper neutral position and the clamp screw is tight. Likewise, even if the mower is not properly disengaged or the clamp screw is loose but the spring is properly in place, the drive mechanism will not engage. Adelman could not say with a reasonable degree of engineering certainty that the spring design caused the accident.

Mr. James Efflandt, employed by defendant as a project engineer, testified that he inspected plaintiff’s mower and discovered that the torque lug spring was missing. He further testified that plaintiff’s mower was manufactured on October 11,1972.

Efflandt disagreed with Adelman’s opinion that the torque lug spring later installed on plaintiff’s mower by Adelman was loose to the point it could fall out. Efflandt checked the spring in court and stated it was tight. Efflandt further stated, in disagreement with Adelman’s opinion, that the spring as designed is not subject to breakage. According to Efflandt, he tested the mower without a spring installed and discovered that, when the lockout mechanism was not in neutral, the mower would not self-propel but that the motor would sort of shudder. Additionally, defendant has no record of failure of the spring during any of its quality control testing procedures.

Efflandt also stated that the mower complies with the relevant 1972 ANSI safety standards and that the United States Testing Lab certified that it is in compliance with those standards. Finally, Efflandt opined that on the prior occasion when plaintiff had moved the clutch rod to the engaged position and the mower did not self-propel due to a loose clamp screw or misadjusted clutch rod, the spring was in place. On cross-examination, Efflandt conceded that there were alternative drive mechanisms available in 1972.

Mr. David Sassaman, a mechanical engineer, testified that the subject mower complied with the 1972 ANSI standards. According to Sassaman, with the spring in place and the clamp screw loose, the mower will not self-propel in the disengaged mode. It did self-propel, however, when the spring was removed. Sassaman opined that the mower was designed in a safe manner, meets or exceeds all existing safety standards, and is safe for its intended purpose.

On cross-examination, Sassaman stated that he found no evidence that the mower had been abused or misused. He further conceded that other drive mechanisms were available when plaintiff’s mower was manufactured.

Defendant submitted a production card maintained by it which indicates that defendant’s mower was manufactured on October 11, 1972. Steven Wood, who was employed at the plant where the mower was manufactured as a service training instructor in 1972, testified that part of his responsibilities at that time included inventory management. According to Wood, he was very familiar with the manufacture and sale of lawn mowers produced at the plant in 1972.

Wood stated that mowers were transferred to a warehouse in Galesburg, Illinois, after manufacture. The distributor would place orders, and the mowers would be shipped FOB within 30 days of receiving the order. According to Wood, title to the goods passed to the distributor once they were loaded on the truck and the driver signed the bill of lading. Wood testified that the absolute longest period of time a mower would remain in the warehouse before being shipped to a distributor was 12 months after its date of manufacture.

Plaintiff initially contends generally that it was error for the trial court to find that res ipsa loquitur did not apply in this case. More specifically, plaintiff argues that it was error for the trial court not to have given the standard res ipsa loquitur instruction as tendered by plaintiff.

It is essential to note that plaintiff does not raise a specific challenge to the pretrial granting of summary judgment in favor of defendant on the res ipsa loquitur issue in its brief. In the trial court, defendant moved for summary judgment on the res ipsa issue presented in count I of plaintiffs complaint. In doing so, it attached the depositions of plaintiff and his expert witness, Joseph K. Adelman. Plaintiff filed a response to defendant’s motion. The trial court subsequently ruled in favor of defendant which effectively eliminated the res ipsa issue from the case. This procedure was proper as the application of the doctrine in a given case is a question of law which must be decided in the first instance by the trial court (Imig v. Beck (1986), 115 Ill. 2d 18, 27, 503 N.E.2d 324), and it is the proper function of the trial court, at the pretrial motion stage, to determine the appropriateness of res ipsa loquitur to the facts of the case presented. (Greenberg v. Michael Reese Hospital (1979), 78 Ill. App. 3d 17, 25, 396 N.E.2d 1088, aff’d in part & rev’d in part on other grounds (1980), 83 Ill. 2d 282, 415 N.E.2d 390.) Because reliance on the doctrine must be pleaded (Walker v. Rumer (1978), 72 Ill. 2d 495, 502, 381 N.E.2d 689), and there was no allegation of res ipsa remaining in the case, no such issue remained before the jury. Therefore, it would have been improper to have instructed the jury thereon. Consequently, plaintiff’s contentions in that regard must fail.

Plaintiff has not addressed the propriety of the summary judgment order as to the res ipsa count in its appellate brief. As plaintiff has not presented any argument or authority to support the reversal of the trial court’s summary judgment order on the res ipsa count, the issue is waived.

Plaintiff next contends that the jury’s answers to two special interrogatories that plaintiff’s mower left the possession of defendant on or before May 27, 1974, and was purchased by plaintiff on or before May 27,1976, are against the manifest weight of the evidence.

It should be noted that plaintiff, in his brief, refers to the date of on or before May 27, 1974, as the date contained in the special interrogatory regarding when plaintiff purchased the mower. The record indicates that the date on that interrogatory is May 27, 1976, and defendant refers to it as such in its brief. Plaintiff offers no reason in its principal brief or in its reply why it uses the date of May 27, 1974, and thus it must be assumed that the use of that date is an oversight by plaintiff.

Section 13 — 213(b) of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 13 — 213(b)) states:

“(b) Subject to the provisions of subsections (c) and (d) no product liability action based on the doctrine of strict liability in tort shall be commenced except within the applicable limitations period and, in any event, within 12 years from the date of first sale, lease or delivery of possession by a seller or 10 years from the date of first sale, lease or delivery of possession to its initial user, consumer, or other non-seller, whichever period expires earlier, of any product unit that is claimed to have injured or damaged the plaintiff, unless the defendant expressly has warranted or promised the product for a longer period and the action is brought within that period.”

The two special interrogatories submitted to the jury asked:

“Was the Lawn Boy lawn mower, model 8231, serial number 6462552 sold and did it leave the possession of Outboard Marine Corporation on or before May 27, 1974?”
“Did Donald Delnick obtain and possess the Outboard Marine Corporation/Lawn Boy lawn mower, model 8231, serial number 6462552, on or before May 27,1976?”

The jury answered “yes” to both special interrogatories. An affirmative answer to either interrogatory would preclude plaintiffs strict liability count under the above-cited statute of repose. As the jury responded affirmatively to both interrogatories, the only issue is whether both responses were against the manifest weight of the evidence. As the statute of repose is an affirmative defense, the burden rests upon defendant to prove it. Burnett v. West Madison State Bank (1940), 375 Ill. 402, 408, 31 N.E.2d 776; Calumet Country Club v. Roberts Environmental Control Corp. (1985), 136 Ill. App. 3d 610, 613, 483 N.E.2d 613.

As to the interrogatory concerning whether the mower left defendant’s possession prior to May 27, 1974, defendant submitted a production card maintained by it, which shows that the mower was manufactured on October 11, 1972. Steven Wood, who was employed at the plant where the mower was manufactured as a service training instructor in 1972, testified that part of his responsibilities at that time included inventory management. According to Wood, he was very familiar with the manufacture and sale of lawn mowers produced at the plant in 1972.

Wood stated that mowers were transferred to a warehouse in Galesburg after manufacture. The distributor would place orders, and the mowers would be shipped FOB within 30 days of receiving the order. According to Wood, title to the goods passed to the distributor once they were loaded on the truck and the driver signed the bill of lading. Wood testified that the absolute longest period of time a mower would remain in the warehouse before being shipped to a distributor was 12 months after its date of manufacture. Plaintiff points to no evidence to rebut Wood’s testimony, but, rather, emphasizes Wood’s failure to testify as to the exact date the mower was shipped and defendant’s failure to introduce any documentary evidence to show when the mower was shipped.

Circumstantial evidence is sufficient to establish a fact in a civil case, and such evidence will suffice whenever an inference may reasonably be drawn therefrom. (Pace v. McClow (1983), 119 Ill. App. 3d 419, 423-24, 458 N.E.2d 4.) The question here is whether defendant submitted sufficient circumstantial evidence from which the jury could reasonably infer that the mower left defendant’s possession on or before May 24, 1974. Based on the manufacture date of October 11, 1972, and Wood’s testimony that the longest a mower would be warehoused before being shipped was one year, the jury could have reasonably inferred that plaintiff’s mower left the possession of defendant on or before October 11, 1973, well before the May 27, 1974, date. Thus, the jury’s affirmative response to the special interrogatory regarding whether the mower left defendant’s possession on or before May 27, 1974, is not against the manifest weight of the evidence. That finding alone is enough to bar plaintiff’s claim under the statute of repose regardless of the jury’s answer to the second interrogatory. Nevertheless, we shall briefly address the sufficiency of the evidence as to that interrogatory.

The second interrogatory asked whether plaintiff obtained and possessed the mower on or before May 27, 1976. Although there is no evidence as to how long plaintiff’s mower remained in possession of a distributor or retailer prior to being sold to plaintiff, defendant’s evidence does support a reasonable inference that the distributor took possession no later than October 11, 1973, well over two years before May 27, 1976. Plaintiff testified on direct examination that he purchased the mower “the summer of 1976.” He offered no other evidence as to the purchase date of the mower.

Plaintiff, on cross-examination, was asked whether it was possible that he purchased the mower in 1974 to which plaintiff answered, “I have no accurate records that indicate when the lawnmower [sic] was purchased.” The question was repeated, and plaintiff stated that he had purchased his previous mower in 1965 and he was sure it lasted in excess of 10 years. Defense counsel then referred to plaintiffs deposition wherein plaintiff stated that he could have purchased the mower in 1973 or 1974. Plaintiff admitted answering in the manner contained in his deposition. We note that plaintiff’s statement that he could have purchased the mower in 1973 or 1974 constitutes an admission and is therefore admissible as substantive evidence. See M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §802.1, at 525-26 (4th ed. 1984).

The credibility of the witnesses and the weight to be given their testimony are typically matters for a jury to consider, and unless its determination is manifestly against the weight of the evidence it will not be disturbed on appeal. (Moran v. Lala (1989), 179 Ill. App. 3d 771, 782, 534 N.E.2d 1319.) Clearly, the jury here was free to reject plaintiff’s trial testimony as to when he purchased the mower and was equally free to believe plaintiff’s testimony contained in his deposition. Furthermore, plaintiff's testimony that he purchased the mower in the “summer” of 1976 lacks definiteness and does not necessarily establish that the mower was purchased after May 27, 1976. There was sufficient evidence to support the reasonable inference that plaintiff purchased the mower prior to May 27, 1976. Accordingly, the jury’s affirmative response to the interrogatory concerning whether the mower was purchased on or before May 27, 1976, was not against the manifest weight of the evidence. As the two interrogatories1 indicate that plaintiff’s claim was barred by the statute of repose, the jury properly found for defendant on the strict liability claim.

Plaintiff also contends that section 13 — 213(b) is unconstitutional because it prohibits an injured party from bringing a products liability claim if the injury arises after 12 years from the first sale of the product or if it arises after 10 years from the sale of the product to the injured party. Plaintiff concedes that this court has upheld the constitutionality of section 13 — 213(b) but argues that the issue remains viable because our supreme court has never addressed the issue. Plaintiff further maintains that this court should reconsider the constitutionality of section 13 — 213(b) in light of several out-of-State decisions holding those States’ statutes of repose unconstitutional.

This court, in Thornton v. Mono Manufacturing Co. (1981), 99 Ill. App. 3d 722, 425 N.E.2d 522, addressed the same constitutional challenge raised by plaintiff in this case and upheld the constitutionality of section 13 — 213(b). (99 Ill. App. 3d at 724-28, 425 N.E.2d at 524-26.) Research indicates no other appellate or supreme court opinions in Illinois directly addressing this issue. As our decision in Thornton has disposed of this issue on the same grounds raised by plaintiff here, we will follow Thornton and hold section 13 — 213(b) to be constitutional. As the foreign jurisdiction cases cited by plaintiff address varying statutes only similar to section 13— 213(b) and constitutional provisions different from Illinois’ Constitution, we decline to follow them.

Plaintiff next argues that it was error to instruct the jury on assumption of risk relating to the strict liability count because the evidence at trial failed to show that he knew or should have known of the danger of stepping in front of the mower while the self-propelled mechanism was disengaged. Defendant makes several responses, one of which we find to be dispositive.

Defendant contends that the jury had no reason to consider the assumption of risk instruction because it found for defendant on the question of liability. The jury was instructed that should it find defendant liable on the strict liability claim and if it were to find plaintiff assumed the risk then it must determine damages. The jury was further instructed first to determine defendant’s damages if plaintiff had not assumed the risk and then reduce that amount by the percentage of damage attributable to plaintiff’s assumption of the risk. Consequently, as instructed, the jury need not consider plaintiff’s assumption of risk unless it first determined defendant to be liable on the strict liability claim. As the jury found for defendant on that claim based upon the answers to the two special interrogatories, any arguable error in instructing on assumption of risk was nonprejudicial in this case.

Plaintiff next contends that it was an abuse of discretion to grant defendant’s motion in limine precluding him from introducing evidence of post-occurrence changes in the traction and control mechanisms implemented by defendant in its self-propelled mowers. Any argument urging admission of this evidence in support of the strict liability claim need not be addressed as plaintiff suffered no prejudice due to the jury’s findings in the special interrogatories regarding the applicability of the statute of repose to that claim.

Plaintiff further contends that the trial court abused its discretion in excluding defendant’s mechanic’s handbook from evidence, particularly that portion referring to the need to keep the clamp screw securely tightened to ensure that the self-propelled mechanism operates properly. Similarly, we would again emphasize that plaintiff suffered no prejudice in the exclusion of the handbook it offered to support the strict liability claim due to the jury’s finding on the applicability of the statute of repose to that claim.

Plaintiff next contends that improper impeachment occurred in this case, first because defendant’s counsel used an excerpt from his deposition which did not show any direct or indirect inconsistency in his trial testimony. Second, defendant’s counsel demonstrated a lack of good faith in his impeachment of plaintiff because he knew that the deposition testimony was ambiguous and not inconsistent with plaintiff’s trial testimony.

At trial, plaintiff was asked on cross-examination, “[a]nd when you stopped the mower, you were approximately three feet from the bird bath, correct?” Plaintiff responded, “[n]o, I didn’t say that. I don’t recall ever having said how far I was from the bird bath.” Defendant’s counsel then read a portion of plaintiff’s deposition:

“Q. Page 69. And at that time you were asked and you gave answers to the following questions:
‘Q. Within how many feet of the birdbath?’ And you answered ‘three.’
* * *
Isn’t that correct, I asked that and you answered in that manner?
A. If it is in the deposition, yes, it must be.”

We note initially that plaintiff’s counsel never objected to the allegedly improper impeachment at trial and therefore waived any error for purposes of appeal. (Joynt v. Barnes (1979), 71 Ill. App. 3d 187, 204, 388 N.E.2d 1298.) Moreover, even were we to address plaintiff’s contention that improper impeachment occurred, we would find it nonmeritorious. While the portion of plaintiff’s deposition used to impeach him is not particularly clear standing alone, it is clear that the deposition question refers to plaintiff’s distance from the birdbath when considered in the context of defendant’s counsel’s trial examination. Thus, the use of plaintiff’s deposition to show the inconsistency in his trial and pretrial testimony was completely proper and in good faith. Moreover, it was not error for defense counsel to utilize that inconsistency in his closing argument.

Plaintiff raises two contentions that defense counsel’s closing argument was improper and prejudicial. First, he argues that it was error for defense counsel to have demonstrated to the jury his view of the accident based on evidence not of record. Specifically, plaintiff maintains that defense counsel’s “reconstruction,” which consisted of counsel’s attempt to reenact the occurrence, was improper because it was based solely upon the supposed impeachment of plaintiff regarding his distance from the birdbath. Second, plaintiff asserts that defense counsel implied that plaintiffs attorneys and expert were dishonest because he characterized plaintiff as the only honest person connected to the prosecution of the lawsuit.

Research indicates one Illinois case addressing the propriety of counsel’s own demonstration during closing argument. In Robinson v. Kathryn (1959), 23 Ill. App. 2d 5, 161 N.E.2d 477, the court held that it is proper for an attorney to demonstrate an occurrence if such demonstration is sustained by evidence in the record. (Robinson, 23 Ill. App. 2d at 8, 161 N.E.2d at 479.) Here, there was evidence in the record, based on defendant’s impeachment of plaintiff, that plaintiff was three feet from the birdbath at the time of the accident. Such evidence was further admissible as an admission of a party and could, therefore, be used to support defense counsel’s demonstration of the occurrence. Accordingly, defense counsel’s demonstration of the accident, based in part on the admission by plaintiff that he was three feet from the birdbath, was proper.

As to defense counsel’s reference to plaintiff as the one honest person connected with the prosecution of the lawsuit, counsel stated in his closing argument, in pertinent part:

“[Defense Counsel]: Mr. Delnick, who is very honest gentleman, told you he never saw it move, and the reason he never saw it move was because it never moved. Think about it. Everyone is insinuating. The one witness, the one honest man, the plaintiff, he never saw it move.
* * *
The funny part about this situation is we didn’t need anything at all except the plaintiff on the stand for the whole trial, and all you have to do is think about that and that one picture, and that’s all there was for this whole week, that one thing.
The honest man went up there, and the honest man told his story, and the honest man’s facts show no lawsuit against my client. Plaintiff has not proved the things he claims.”

It should be noted initially that plaintiff never objected to these comments at trial although he did raise the issue in his post-trial motion. His failure to object at trial waives any claimed error on appeal. Bruske v. Arnold (1969), 44 Ill. 2d 132, 137, 254 N.E.2d 453; Lindroth v. Walgreen Co. (1950), 407 Ill. 121, 136, 94 N.E.2d 847.

Even were we to address the merits of the issue, it is clear from a fair reading of defense counsel’s comments that he did not imply that plaintiffs attorney or his expert was dishonest. Defense counsel’s remarks concerning plaintiff’s honesty appear to emphasize plaintiff’s honesty for the purpose of accentuating plaintiff’s failure to prove his case. This was particularly appropriate considering plaintiff was the only occurrence witness. Defense counsel’s concession of plaintiff’s honesty served to strengthen his argument that plaintiff did not prove that the mower moved and as such was appropriate under the circumstances.

Plaintiff next argues that it was error not to submit a general verdict form because he was entitled to a general verdict form pursuant to sections 2 — 1108 and 2 — 1201 of the Civil Practice Law (Ill. Rev. Stat. 1987, ch. 110, pars. 2 — 1108, 2 — 1201). He further maintains that separate verdicts placed undue emphasis on the effect of the statute of repose and it was error to submit the two interrogatories.

Section 2 — 1108 provides, in pertinent part, that “[u]nless the nature of the case requires otherwise, the jury shall render a general verdict.” (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1108.) Under the circumstances present in this case, separate verdict forms were appropriate. Plaintiff presented two separate bases of recovery, negligence and strict liability. Defendant raised the statute of repose as an affirmative defense to the strict liability claim. Had the jury returned a general verdict in favor of plaintiff, defendant would have no way of determining whether the jury rejected or accepted his statute of repose defense. Likewise, had the jury returned a general verdict in favor of defendant, plaintiff would not know whether the jury had rejected its negligence claim outright or had misapplied the statute of repose to that claim. Under these particular circumstances, it was not error to submit separate verdict forms.

Nor was the giving of the two special interrogatories improper. The function of a special interrogatory is to require the jury’s determination as to one or more specific issues of ultimate fact and is a check upon the deliberations of the jury — it tests the general verdict against the jury’s conclusions as to the ultimate controlling facts. (Sommese v. Maling Brothers, Inc. (1966), 36 Ill. 2d 263, 222 N.E.2d 468.) The period of repose is a specific issue of ultimate fact, and the special interrogatories were properly given to the jury.

Finally, plaintiff maintains the trial court erred in denying his motion for judgment notwithstanding the verdict. Judgment notwithstanding the verdict should only be granted in those cases where all the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors the movant that no contrary verdiet based on that evidence could ever stand. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504.) Having carefully reviewed the record, we find no basis to set aside the jury’s verdicts and enter judgment for plaintiff.

For the foregoing reasons, we affirm the judgment of the circuit court of Du Page County.

Affirmed.

GEIGER and INGLIS, JJ., concur.


source: Caselaw Access Project

author: JUSTICE DUNN

license: Public Domain

text:
    GALVIN KENNEDY, Plaintiff-Appellee, v. BARBARA MILLER et al., Defendants (Drenk & Smith, Ltd., Appellant).
    Second District
    No. 2—89—1029
    Opinion filed May 21, 1990.

      Douglas Drenk and Nancy J. Smith, both of Drenk & Smith, Ltd., of Wheaton, for appellant.
    William E. Jegen, of William E. Jegen, P.C., of Glen Ellyn, for appellee.
   JUSTICE DUNN

delivered the opinion of the court:

The appellant in this cause is Drenk & Smith, Ltd. (defense counsel), the law firm representing defendants Barbara Miller, Laurence Miller, and La Grange State Bank in an action filed by the plaintiff, Galvin Kennedy, in the circuit court of Du Page County. After the appeal was filed, the plaintiff filed a motion with this court seeking dismissal of the appeal for lack of jurisdiction and sanctions against defense counsel for bringing an allegedly frivolous appeal. We granted the motion to dismiss the appeal but reserved our ruling on the question of sanctions.

The sole remaining issue on appeal is whether this court should impose sanctions on defense counsel for the filing of an allegedly frivolous appeal pursuant to Supreme Court Rule 375(b) (134 Ill. 2d R. 375(b)).

This cause was initiated with a complaint filed by the plaintiff on March 14, 1977, seeking to establish the existence of a joint venture between the parties. The complaint also sought an accounting and the recovery of profits. Although the long history of this litigation is given somewhat more thorough treatment in our prior decision in Kennedy v. Miller (1988), 174 Ill. App. 3d 48, 528 N.E.2d 406, no such recitation is necessary here. The only event of importance here is the trial court’s order of October 3, 1989, imposing sanctions on the defendants and their attorneys pursuant to section 2 — 611 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 611). On October 10, 1989, defense counsel filed a notice of appeal on their own behalf from the order imposing sanctions. The record does not indicate that the pending issues between the parties were resolved when the notice of appeal was filed. The entire record, comprising all proceedings since 1977, was subsequently transmitted to this court.

The brief submitted on appeal by defense counsel contained a jurisdictional statement stating that this court had jurisdiction over the appeal pursuant to our decision in Sherman Hospital v. Wingren (1988), 169 Ill. App. 3d 161, 523 N.E.2d 220. On February 23, 1990, the court, on its own motion, ordered defense counsel to file an amended jurisdictional statement indicating the supreme court rule pursuant to which the appeal was taken. Defense counsel’s amended jurisdictional statement, which was filed March 6, 1990, stated that jurisdiction over the appeal was based on Supreme Court Rule 301 (107 Ill. 2d R. 301), which governs appeals from a “final judgment of a circuit court.”

The plaintiff first raised the issue of whether this court had jurisdiction to hear the appeal in a motion filed March 8, 1990, seeking dismissal of the appeal and sanctions against defense counsel pursuant to Supreme Court Rule 137 (134 Ill. 2d R. 137). The plaintiff argued that this court had no jurisdiction over the appeal because the order imposing sanctions was not a final, appealable order and because no provision for interlocutory appeal was applicable under these circumstances. Plaintiff stated in the motion that the underlying case remains pending in the circuit court of Du Page County. The motion asked us to impose sanctions on defense counsel because “this spurious interlocutory appeal was filed to cause further delays by removing the Court file from [the trial court] and/or to further harass this plaintiff in this thirteen (13) year old case.” The motion was accompanied by the affidavits of Peter Lombardo and William Jegen, attorneys for the plaintiff, indicating that plaintiff incurred $3,975 in attorney fees in conjunction with this appeal.

In a response to the plaintiff’s motion filed March 14, 1990, defense counsel claimed that the plaintiff’s jurisdictional argument “totally ignores” this court's prior opinion in Sherman. Defense counsel clairiied that Sherman recognized “the right of non-party attorneys who are sanctioned to an immediate appeal.” Accompanying the response was the affidavit of attorney Douglas Drenk, which took issue with the amount of attorney fees claimed by the plaintiff.

The plaintiff continued to argue in favor of dismissal and sanctions in its brief filed March 20, 1990. The plaintiff contended that the Sherman decision, cited by defense counsel in support of appellate jurisdiction, “does not address the timeliness of an appeal; it only addresses the standing of a party to bring an appeal.” The plaintiff’s brief again noted that this cause was appropriate for the imposition of sanctions pursuant to either Supreme Court Rule 375 or Supreme Court Rule 137 because the filing of the appeal was frivolous.

On March 27, 1990, this court issued an order granting the plaintiff’s motion to dismiss the appeal for lack of jurisdiction. The plaintiff’s motion for sanctions and defense counsel’s response thereto were taken under advisement. We now address the question of whether sanctions should be imposed on defense counsel for the filing of an allegedly frivolous appeal. We note that our inquiry here is limited solely to defense counsel’s conduct on appeal, and we do not address the merits of the appeal, now dismissed, from the imposition of sanctions by the trial court. Although we have dismissed the appeal, we retain jurisdiction to decide the question of sanctions. In this regard, we are in agreement with the recent holding of a Federal appellate court:

“Our inherent jurisdiction to condemn and punish the abusive conduct of litigants and their attorneys who appear before us is separate and apart from our jurisdiction to adjudicate the merits of their claims. In the exercise of our inherent jurisdiction we may, of course, inform ourselves of the nature and extent of apparent misconduct and we may condemn it as abusive. Our condemnation is not the exercise of our jurisdiction over the merits; it is an exercise of our inherent jurisdiction. That some issue may be common to both bases of jurisdiction does not preclude this court from exercising either independently or both simultaneously.” Trohimovich v. Commissioner of Internal Revenue (9th Cir. 1985), 776 F.2d 873, 875.

Although the plaintiff has asked us to impose sanctions under Supreme Court Rule 137 (134 Ill. 2d R. 137), we believe that Rule 137 is not applicable to motions seeking sanctions for the bringing of a frivolous appeal. Supreme Court Rule 375(b), however, specifically allows a reviewing court to impose sanctions for improper appeals. The rule states in part:

“If, after consideration of an appeal, it is determined that the appeal itself is frivolous, or that an appeal was not taken in good faith, for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation, or the manner of prosecuting the appeal is for such purpose, an appropriate sanction may be imposed upon any party or the attorney or attorneys of the party or parties. An appeal will be deemed frivolous where it is not reasonably well grounded in fact and not warranted by existing law or a good-faith argument for the extension, modification, or reversal of existing law.” (134 Ill. 2d R. 375(b).)

Because this rule, and not Supreme Court Rule 137, is applicable here, we will treat the plaintiff’s motion as a motion brought pursuant to Supreme Court Rule 375.

The plaintiff argues that defense counsel’s baseless attempt to bring an interlocutory appeal from the trial court’s imposition of sanctions represents an utterly frivolous appeal causing unnecessary delay. We agree. There is absolutely no arguable basis in law supporting the exercise of this court’s jurisdiction over the appeal brought by defense counsel, nor has an argument been advanced for modification of existing law.

The only basis defense counsel raises in support of the court’s jurisdiction to hear this appeal is our prior decision in Sherman Hospital v. Wingren (1988), 169 Ill. App. 3d 161, 523 N.E.2d 220. In Sherman, we noted that attorneys subject to an order assessing sanctions could appeal that order even if they were not parties to the underlying action. (Sherman, 169 Ill. App. 3d at 165, 523 N.E.2d at 223.) Thus, Sherman held that attorneys have standing to appeal from the imposition of sanctions. Contrary to defense counsel’s assertion that Sherman recognized the right of sanctioned attorneys “to an immediate appeal,” our decision in Sherman did not state that such an appeal could be brought before the entry of final judgment in the underlying action. In fact, the appeal in Sherman was not brought until after the entry of final judgment in the underlying suit. Sherman, 169 Ill. App. 3d at 162, 523 N.E.2d at 221.

Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)) provides that if multiple parties or claims for relief are involved in an action, an appeal may be taken from a final judgment as to fewer than all the parties or claims only if the trial court makes an express written finding that there is no just reason for delaying enforcement or appeal. In the present case, the trial court never made such a finding with regard to the order sanctioning defense counsel. In Hise v. Hull (1983), 116 Ill. App. 3d 681, 452 N.E.2d 372, the Appellate Court for the Fourth District dismissed an appeal from an order dismissing a complaint because defendant’s request for section 2 — 611 sanctions was still pending in the trial court when plaintiff’s notice of appeal was filed, and the trial court had not made the requisite.Rule 304(a) finding. (Hise, 116 Ill. App. 3d at 684, 452 N.E.2d at 374-75.) The court stated, however, that a section 2 — 611 claim could be brought as a separate action at any time within 30 days of the judgment disposing of the underlying claim, and if this were done, the trial court’s failure to rule on the section 2 — 611 claim would not affect the appealability of the underlying judgment, even in the absence of a Rule 304(a) finding. 116 Ill. App. 3d at 684, 452 N.E.2d at 375.

In People v. King (1988), 170 Ill. App. 3d 409, 524 N.E.2d 723, the Appellate Court for the Fourth District, relying on Plise, held that a section 2 — 611 claim made by the State after judgment was entered on defendant’s petition to rescind the statutory summary suspension of his driver’s license was a separate action which did not affect the appealability of the judgment on the petition to rescind. (King, 170 Ill. App. 3d at 417, 524 N.E.2d at 728.) In King, the court failed to consider the applicability of the following language that was added to section 2 — 611 effective November 25,1986:

“All proceedings under this Section shall be within, and part of the civil action in which the pleading, motion or other paper referred to herein has been filed, and no violation or alleged violation of this Section shall give rise to a separate cause of action, or another cause of action within the civil action in question, by, on behalf of or against any party to the civil action in question, and by, on behalf of or against any attorney or insurance company involved in the civil action in question.” (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 611.)

We note that similar language is also found in Supreme Court Rule 137 (134 Ill. 2d R. 137).

In Palmisano v. Connell (1989), 179 Ill. App. 3d 1089, 534 N.E.2d 1243, this court stated that the above language makes it clear that section 2 — 611 claims must be considered part of the civil action which gave rise to the claim and cannot be considered separate actions. (Palmisano, 179 Ill. App. 3d at 1095, 534 N.E.2d at 1247; see also Herman v. Fitzgerald (1989), 178 Ill. App. 3d 865, 869, 533 N.E.2d 1144, 1146.) We went on to hold in Palmisano that, absent a Rule 304(a) finding by the trial court, the underlying judgment in a civil action is not appealable if a section 2 — 611 claim remains unresolved. (Palmisano, 179 Ill. App. 3d at 1095, 534 N.E.2d at 1247.) The Palmisano holding has been cited and followed in other cases from this district. See In re Marriage of Strauss (1989), 183 Ill. App. 3d 424, 430, 539 N.E.2d 808, 813; Kousins v. Anderson (1989), 180 Ill. App. 3d 827, 829, 536 N.E.2d 487, 489.

In both Strauss and the case at bar, an attempt was made to appeal from the imposition of sanctions pursuant to section 2 — 611 while the underlying case was still pending in the trial court. We held in Strauss that, absent a Rule 304(a) finding by the trial court, the order granting sanctions was not final and appealable under these circumstances, and we dismissed the appeal. (Strauss, 183 Ill. App. 3d at 430, 539 N.E.2d at 813.) Strauss is directly on point, and it is clear from examining that holding that defense counsel’s attempted appeal in the case at bar was premature.

We recognize there is some conflict between the Palmisano line of cases and the holding of the Appellate Court for the Fourth District in King concerning the issue of whether a section 2 — 611 claim must be considered part of the action which gave rise to the claim or can be considered a separate action under some circumstances. Even if the King rationale has some validity, however, it only applies to section 2 — 611 claims brought after the judgment in the underlying action. (People v. King (1988), 170 Ill. App. 3d 409, 417, 524 N.E.2d 723, 728.) In the case at bar, the order imposing sanctions pursuant to section 2 — 611 was issued before judgment was entered in the underlying case. Thus, the King rationale is clearly unavailable to defense counsel, and there is no arguable basis for appellate jurisdiction in this case.

As we have already discussed, the only basis defense counsel put forth to show that this court had jurisdiction over the appeal was our prior decision in Sherman, a case which is wholly inapposite here. We look to the committee comments accompanying Rule 375 for guidance in determining whether defense counsel’s misapplication of the law, which resulted in this appeal being pressed, is cause for the imposition of sanctions. The committee comments state that we must apply “an objective standard of conduct, viz, an appeal will be found to be frivolous if a reasonable prudent attorney would not in good faith have brought such an appeal.” 134 Ill. 2d R. 375(b), Committee Comments.

We believe that a reasonable, prudent attorney would have taken care to insure that jurisdiction existed before attempting to bring such an unusual interlocutory appeal. Defense counsel’s fault lies not merely in misreading the clear statement of the law in Sherman, but also in failing to recognize their error after being presented with a number of opportunities to do so. Defense counsel’s first opportunity to examine whether there was jurisdiction over this appeal was at the time they wrote the original jurisdictional statement in their brief as required by Supreme Court Rule 341(e)(4)(ii) (134 Ill. 2d R. 341(e)(4)(ii); see also Ill. Rev. Stat., 1988 Supp., ch. 110A, par. 341(e)(4)(ii)). The very purpose of requiring a party to include such a jurisdictional statement is to “provoke counsel to make an independent determination of the right to appeal prior to writing the briefs.” (Waitcus v. Village of Gilberts (1989), 185 Ill. App. 3d 248, 252, 541 N.E.2d 213, 216.) Defense counsel failed to utilize this opportunity, because the original jurisdictional statement merely referred us to our prior decision in Sherman. Our order directing defense counsel to file an amended jurisdictional statement in conformity with Rule 341(e)(4)(ii) gave them yet another opportunity to cogitate about whether jurisdiction was present. Instead, defense counsel’s amended jurisdictional statement again merely stated that jurisdiction was appropriate pursuant to Supreme Court Rule 301. Because Rule 301 applies only to appeals from final judgments, it is apparent that this second opportunity for defense counsel to consider the jurisdictional question passed without effect.

Finally, the plaintiff’s motion to dismiss the appeal placed the propriety of our jurisdiction squarely at issue. Again, defense counsel relied solely on our decision in Sherman although that case clearly does not resolve the jurisdictional issue in this case. None of these three opportunities prompted defense counsel to reevaluate their reliance on Sherman. Instead, defense counsel persisted in prosecuting an appeal which, under these circumstances, a reasonable, prudent attorney would have realized could not be brought at this juncture. The result was the unnecessary expenditure of resources by both the plaintiff and this court, not to mention the delay which may have been occasioned in resolving the underlying lawsuit in the trial court.

We conclude that the filing of this appeal was an action not reasonably well-grounded in law, and, as such, this conduct is sanction-able under Rule 375. We believe that the appropriate sanction under these circumstances is to require defense counsel to pay the reasonable attorney fees the plaintiff incurred in defending this appeal.

Since appellate jurisdiction was obviously lacking in this case, we believe plaintiff should only be compensated for the work of his attorneys relating to the preparation of his motion to dismiss this appeal. Plaintiffs attorneys seek compensation for 29.3 hours of work on this appeal. This itemized account of attorney fees reveals that some of this time obviously did not relate to preparation of the motion to dismiss, including reading defense counsel’s appellate brief and cases cited therein and reviewing transcripts. Furthermore, plaintiff’s motion to dismiss was lengthier than necessary because it did not cite any of the recent relevant authority from this district, including Palmisano and Strauss. We believe 10 hours of attorney Lombardo’s time was necessary at a rate of $125 per hour and five hours of attorney Jegen’s time at $150 per hour. We therefore direct attorneys Drenk and Smith to pay $2,000 to plaintiff as a sanction for bringing this appeal. Drenk and Smith shall be jointly and severally liable for payment of this amount.

Motion granted; sanction imposed.

REINHARD and GEIGER, JJ., concur.


author: JUSTICE LUND

text:
    THE CITY OF BLOOMINGTON, Plaintiff-Appellee, v. BIBLE TRUTH CRUSADE, Defendant-Appellant (Champaign Federal Savings & Loan, Defendant).
    Fourth District
    No. 4—89—0791
    Opinion filed May 24, 1990.

      Gary L. Morris and Marcia F. Straub, both of Peoria, for appellant.
    James D. Bass, of Thomas N. Jacob & Associates, of Bloomington, for appellee.
   JUSTICE LUND

delivered the opinion of the court:

On August 30, 1989, the circuit court of McLean County entered an order authorizing the City of Bloomington (City) to demolish a building belonging to the Bible Truth Crusade (Crusade). The Crusade now appeals. We affirm.

On August 14, 1987, the City filed a complaint pursuant to section 11 — 31—1 of the Illinois Municipal Code (Ill. Rev. Stat. 1987, ch. 24, par. 11 — 31—1), alleging that a building owned by the Crusade was dangerous and unsafe, and seeking authority to have the building demolished and to create a lien against the property for the cost of demolition. The Crusade answered with an affirmative defense, alleging the City was estopped from so proceeding. Pursuant to motion, the court dismissed this defense.

A bench trial was held on August 25, 1989. The evidence establishes that the building in question is a former school building, located in a residential neighborhood, which the Crusade had used as a Bible College. In the early 1980’s, the Crusade began demolition of the property. It was not able to complete the work within the time frames of various permits issued by the City. Finally, in June 1986, upon the lapsing of the last permit, the City issued a stop order and would grant no further permits. At the time of the trial, the structure was partially torn down. It had no roof and several walls were down. The lot was covered with bricks and other debris. While the property was enclosed with a cyclone wire fence, a city inspector has observed that it had been down at various times. A neighbor testified that wild animals, such as raccoons, opossums, and groundhogs, appeared to live in the rubble on the property.

Delbert Herman, the Crusade’s founder and president, testified that demolition was started as a cooperative arrangement with the urban renewal department of the City. However, part way through the project, the City began withholding funds, necessitating the stoppage. He worked as the general contractor. At the time, he had a purchaser for the bricks. He also had bids to finish the demolition. It was his concern that the City would spend too much money removing the building and the Crusade would then have to pay for it.

The court found the property was unsafe and dangerous. Accordingly, it entered an order authorizing the City to finish demolition of the building, including removal of the foundation and footings, and to finish the grade and seed the lot. The order also provided the City was entitled to pursue its lien rights to recover the cost of the demolition. This appeal followed.

The Crusade initially argues the court improperly dismissed its affirmative defense. This defense was predicated on an estoppel theory. The pleading alleged in great detail that the City and the Crusade had entered into an agreement to tear the structure down, wherein the City would provide some funds and would cooperate and assist the Crusade in the project. The pleading alleged that the City then embarked upon a course of conduct contrary to this agreement by freezing the funds, refusing to issue permits, and by other conduct. Therefore, the Crusade asserted the City should be barred from seeking a court order to demolish the building, and the court erred by not allowing it to assert this defense. We disagree.

Section 11 — 31—1 provides municipalities with a mechanism to demolish a building that is dangerous or unsafe at the expense of the property owner. (Turpen v. City of St. Francisville (1986), 145 Ill. App. 3d 891, 895, 495 N.E.2d 1351, 1353.) Its purpose is to provide municipalities the power to abate public nuisances which may prove detrimental to public health, safety, and welfare. (City of Peru v. Bernardi (1980), 81 Ill. App. 3d 227, 231, 401 N.E.2d 1, 3; Turpen, 145 Ill. App. 3d at 895, 495 N.E.2d at 1353-54.) It is also intended that this procedure be an expeditious one. (See City of Chicago v. General Realty Corp. (1971), 133 Ill. App. 2d 662, 667, 273 N.E.2d 712, 716; City of Chicago v. Nielsen (1976), 38 Ill. App. 3d 941, 945, 349 N.E.2d 532, 538.) The questions to be answered are whether the building is dangerous and unsafe or abandoned, and whether the building is beyond reasonable repair. Ill. Rev. Stat. 1987, ch. 24, par. 11 — 31—1; City of Aurora v. Meyer (1967), 38 Ill. 2d 131, 137, 230 N.E.2d 200, 204.

We conclude it is not in keeping with the legislative intent and sound public policy to allow other issues to be introduced into the controversy. As noted, the statute is intended to provide a quick and effective means to remove structures that present danger and blight. (Nielsen, 38 Ill. App. 3d at 945, 349 N.E.2d at 538.) In fact, it provides that the hearing “shall be expedited by the court and shall be given precedence over all other suits.” (Ill. Rev. Stat. 1987, ch. 24, par. 11 — 31—1(a).) The City’s conduct has no bearing on the issues involved. The allegations contained in the asserted defense also comprise a lawsuit earlier filed by the Crusade against the City. It is through this mechanism, as the trial court observed, that the Crusade can obtain relief for any misconduct on the part of the City. To allow related issues to be drawn into a demolition or repair action would only complicate and delay the proceeding, endanger public safety, and defeat the purpose of the statute.

The Crusade next contends the court erred in refusing its demand for a jury trial. The Illinois Constitution provides: “The right of trial by jury as heretofore enjoyed shall remain inviolate.” (Ill. Const. 1970, art. I, §13.) This same provision was provided in the 1870 Illinois Constitution. (Ill. Const. 1870, art. II, §5.) However, this language is designed to simply secure the right to trial by jury as it existed in common law actions when the Constitution was adopted. (Lazarus v. Village of Northbrook (1964), 31 Ill. 2d 146, 148, 199 N.E.2d 797, 799; People ex rel. Keith v. Keith (1967), 38 Ill. 2d 405, 407, 231 N.E.2d 387, 389.) Since there had been no such right previously recognized, there is no constitutional right to trial by jury in cases involving equity. (Lazarus, 31 Ill. 2d at 148, 199 N.E.2d at 799.) Nor was this provision intended to guarantee a trial by jury in special or statutory proceedings unknown to common law. (Keith, 38 Ill. 2d at 408, 231 N.E.2d at 389.) Since the present controversy qualifies in both regards, it is evident that no right to jury trial existed and, consequently, the court did not err in denying the request for one.

The Crusade finally contends that the court’s order of demolition was overly broad. The order provided not only that the building be demolished, but also that the foundation and footings be removed and the property seeded. The Crusade objects to these latter provisions. It notes that it will ultimately bear the cost of this work. It does not believe it should have to pay for this work which is unnecessary and, in fact, will only increase the cost of any rebuilding since new footings and foundation will have to be built.

However, this case is not the proper forum to object to excessive demolition costs. In City of Peru v. Bernardi (1980), 84 Ill. App. 3d 235, 239, 405 N.E.2d 462, 465-66, the court addressed a similar contention and stated:

“The defendants Bernardi also appeal the denial of their motion to strike specifications and bids. They argue that the city’s specifications unnecessarily and unreasonably increased the cost of the demolition work and that the lowest bid submitted to the city is $40,000 greater than calculated by another contractor. The trial court determined that the proper time to raise the issue of unreasonable demolition costs was at the time of foreclosure. The trial judge was correct in suggesting that the city will have the burden of proving the reasonableness of its expenditure in such a proceeding. (City of Peru v. Bernardi (1980), 81 Ill. App. 3d 227, 401 N.E.2d 1.) We believe this and other remedies afford adequate protection of defendants’ property interests and are consistent with the policy of the unsafe buildings act.”

The Crusade’s objection that the scope of the order improperly increased the costs of the demolition to be borne by the Crusade is, therefore, better raised at the proceeding in which the City would seek to foreclose its lien. The trial court also correctly observed that the Crusade has an adequate remedy in its other lawsuit with the City, in which it can seek damages for the cost of replacing the footings and foundations. Accordingly, this allegation of error is misplaced.

Affirmed.

SPITZ and STEIGMANN, JJ., concur.


author: JUSTICE McCULLOUGH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EVA SAVAGE, Defendant-Appellant.
    Fourth District
    No. 4—89—0694
    Opinion filed May 24, 1990.
    Asher 0. Geisler, of Geisler Law Offices, of Decatur, for appellant.
    Lawrence R. Fichter, State’s Attorney, of Decatur (Kenneth R. Boyle, Robert J. Biderman, and Rebecca L. White, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

After a jury trial, defendant was convicted of unlawfully possessing a controlled substance (cocaine). (Ill. Rev. Stat. 1987, ch. 56V2, par. 1402(a)(2).) She appeals, arguing the trial court erred in not vacating the jury verdict as it was contrary to the manifest weight of the evidence. Defendant also argues the trial court erred in failing to grant her a mistrial when the State introduced a photograph which was not provided in pretrial discovery.

We affirm.

On June 16, 1988, Decatur police officers Jerry Wagoner and Edgar Combs arrested defendant in a parking lot near her home. Wagoner made the initial stop of defendant’s vehicle. Combs parked his squad car in a fashion which blocked defendant’s vehicle. Wagoner and Combs stated that after defendant exited her car, she ran. They caught her, a struggle ensued, and they handcuffed her hands behind her back. Combs stated defendant was wearing light blue shorts and a top. Both officers stated that they did not frisk or search defendant prior to placing her in Combs’ squad car.

Combs stated that prior to the arrest, he had searched the squad car to determine whether any weapons or drugs were in it. He found none. Wagoner and Combs placed defendant in the rear, driver’s side compartment. As Combs stood outside the car watching her, he observed defendant pull cellophane baggies out of her left front pocket. She dropped them onto the floor of the squad car and attempted to kick them under the driver’s side front seat. Combs retrieved the baggies and gave them to Wagoner.

Combs stated six to eight people had gathered near the lot. However, none approached closer than 20 feet prior to defendant’s being placed in the car.

A forensic scientist testified the packets obtained from the squad car weighed 18.3 grams and contained cocaine.

Jeanette Taylor, defendant’s sister-in-law, testified she observed the arrest. She saw Wagoner frisking defendant as Combs arrived. The officers threw defendant against an air-conditioning unit and cuffed her. Taylor stated she approached within five to six feet of the squad car. She could see inside the vehicle and noticed a plastic packet containing a white substance on the floor of the vehicle.

Joseph McGee, defendant’s nephew, also observed the arrest. He saw the officers search defendant prior to placing her in the vehicle. McGee testified he was three to four feet from the squad car. He observed a white plastic bag in the squad car prior to the time the officers placed defendant in it. McGee admitted he had discussed the incident with defendant, but stated they did not discuss his testimony.

Defendant testified the police searched her prior to placing her in the squad car. She denied removing a plastic package from her pocket and throwing it to the floor of the vehicle. Defendant identified a turquoise pair of shorts as the ones she wore on June 16, 1988. The turquoise shorts did not have a left front pocket.

Combs testified in rebuttal. He stated defendant was not wearing the turquoise shorts on June 16, 1988. During cross-examination of Combs, he admitted his police report described the shorts as blue but did not specify the shade or further describe them. Defense counsel then asked Combs whether he or anyone else had photographed the shorts. Combs responded that the shorts had not been photographed, but a photograph of defendant had been taken. Combs believed the photograph might depict the corner of defendant’s shorts. Defense counsel asked where the photograph was located. Combs stated the records bureau had the photograph, and though he did not have access to the records bureau, he could request the photograph.

On redirect examination, the State offered the booking photograph. It depicted a corner portion of defendant’s shorts, showing they were light blue in color.

Initially, defendant argues the court erred in failing to vacate the jury’s verdict as it was contrary to the manifest weight of the evidence. In a criminal case, the reasonable doubt standard applies, and we address the issue in light of that standard.

A criminal conviction will not be set aside unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt of the accused’s guilt. (People v. Byron (1987), 116 Ill. 2d 81, 506 N.E.2d 1247.) In assessing the sufficiency of the evidence, the reviewing court should affirm if, after viewing the evidence in a light most favorable to the prosecution, it determines any rational trier of fact could have found the elements of the offense proved beyond a reasonable doubt. Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789; Byron, 116 Ill. 2d at 90, 506 N.E.2d at 1250; People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267.

The reviewing court should not reweigh credibility determinations. (Collins, 106 Ill. 2d 237, 478 N.E.2d 267.) In the instant case, the jury resolved the credibility question. The evidence viewed most favorably to the prosecution established defendant’s guilt beyond a reasonable doubt.

Defendant next argues the trial court erred in denying her motion for a mistrial. The court entered a pretrial discovery order on July 14, 1988. The State answered on July 14, 1988, and provided two supplemental answers to the discovery order. The booking photograph was not tendered to the defendant. Defendant now argues the photograph was “obtained from or belonged to the accused,” and the prosecutor should have anticipated her defense. Therefore, defendant maintains the prosecutor should have been held to have intended to use the photograph at trial. Defendant argues she was prejudiced by the State’s failure to tender the photograph in discovery.

Supreme Court Rule 412(a)(v) states that upon proper request, the State shall disclose to defense counsel

“any *** photographs *** which the prosecuting attorney intends to use in the hearing or trial or which were obtained from or belong to the accused.” 107 Ill. 2d R. 412(a)(v).

Supreme Court Rule 412(a)(v) was not violated. First, the photograph was not obtained from and did not belong to the accused. Second, the record is clear the State did not intend to use the photograph in trial. The State did not introduce the photograph as a part of its case in chief, nor in its direct examination of Combs in rebuttal. Defense counsel first elicited the testimony concerning the photograph during cross-examination of Combs after Combs’ rebuttal testimony. Defense counsel asked Combs several questions concerning the photograph and its location. The State produced the photograph during rebuttal redirect examination. The defendant cannot complain of the admission of evidence which was invited by her. People v. Jones (1983), 119 Ill. App. 3d 615, 456 N.E.2d 926.

For the above reasons, we affirm the trial court.

Affirmed.

LUND and GREEN, JJ., concur.


text:
      In re M.C., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. Karen Barrett, Respondent-Appellant).
    Fourth District
    No. 4—89—0605
    Opinion filed May 24, 1990.

      Bruce G. Ratcliffe, of Urbana, for appellant.
    Thomas J. Difanis, State’s Attorney, of Urbana (Kenneth R. Boyle, Robert J. Biderman, and Timothy J. Londrigan, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Michael Q. Jones, of Urbana, guardian ad litem.

   JUSTICE McCULLOUGH

delivered the opinion of the court:

Respondent Karen Barrett appeals from an order terminating her parental rights to her son, M.C. Respondent argues the evidence did not support the findings that she failed to make reasonable efforts or reasonable progress toward the return of M.C. to her custody. We affirm.

Only those facts necessary for our resolution of the issue before us will be recited.

In a prior proceeding, M.C. was adjudicated an abused child and made a ward of the court, per article II of the Juvenile Court Act of 1987 (Act) (Ill. Rev. Stat. 1987, ch. 37, pars. 802 — 1 through 802 — 30).

On August 22, 1988, a supplemental petition was filed to terminate respondent’s parental rights to her five children, including M.C. On October 27, 1988, respondent was found unfit pursuant to section l(D)(m) of the Adoption Act (Ill. Rev. Stat. 1987, ch. 40, par. 1501(D)(m)). A dispositional hearing on the petition to terminate was set for December 2, 1988. At the December 2 hearing, the trial judge stated he was not going to grant the State’s request to terminate respondent’s parental rights at that time because (1) he believed respondent showed some hope of correcting the problems which led to the removal of her children in 1987 when M.C. was approximately four months old; and (2) as to M.C., termination of respondent’s parental rights would result in M.C. having an abusive father, Jethro Cole, as his sole parent. The cause was continued for further review to March 28, 1989. Respondent was advised of her right to appeal the December 1988 finding of unfitness. Respondent did not appeal that finding at that time.

On March 28, 1989, the cause was called for a dispositional hearing. The trial judge stated it was not in M.C.’s best interest that respondent be allowed more time to show progress. However, the trial judge again noted that M.C.’s father had not yet been found unfit and expressed concern that M.C. might return to Cole’s home in the future if respondent’s parental rights were terminated. For this reason, the trial judge “continued” the cause as to M.C. for further dispositional hearing. As to another son, C.K., respondent’s parental rights were terminated. This court affirmed that order. (In re C.C. (4th Dist. 1990), No. 4 — 89—0344 (unpublished order under Supreme Court Rule 23).) As to yet two other children, the court denied the State’s request to terminate respondent’s parental rights. Respondent was advised she could appeal the findings of unfitness as to the two other children. The trial judge stated he did not believe a final order as to M.C. had been entered, but referred the parties to Supreme Court Rule 662(a) (107 Ill. 2d R. 662(a)). The trial court set June 29, 1989, for a review hearing.

On June 29, the cause was called for a dispositional hearing as to M.C. and a review hearing as to the two other children. The court considered the June 27, 1989, report prepared by the Illinois Department of Children and Family Services (Department), which recommended respondent’s parental rights to M.C. be terminated. The State and the guardian ad litem also recommended termination, given that it was reported that M.C. was deeply bonded to his foster family. Respondent’s attorney argued she had made some progress since the finding of unfitness was entered and asked that respondent be allowed additional visitation. The court noted that Jethro Cole had not yet been found unfit and, therefore, continued M.C.’s case to July 24, 1989, for a final decision on the State’s request in the supplemental petition to terminate respondent’s parental rights.

On July 24, 1989, in a separate proceeding, Jethro Cole’s parental rights to M.C. were terminated. At a later hearing on July 24 concerning M.C., the court noted the progress respondent had made and continued to make with regard to her children. However, the court found it was in the best interests of M.C., because he was so attached to his foster family, that respondent’s parental rights to M.C. be terminated.

Respondent argues the finding that she is an unfit parent pursuant to section l(D)(m) of the Adoption Act (Ill. Rev. Stat. 1987, ch. 40, par. 1501(D)(m)) is against the manifest weight of the evidence. Respondent points to the fact that she complied with the tasks set forth in the client-service plans prepared by the Department and made measurable progress toward reunification with M.C.

Section 2 — 29(3) of the Act sets forth the findings neces-' sary before parental rights are terminated as to an abused child. (Ill. Rev. Stat. 1987, ch. 37, par. 802 — 29(3).) In sum, a court must find a parent is an unfit person under the Adoption Act and that it is in the best interests of the minor that a guardian be appointed and authorized to consent to adoption of the minor. A court order so empowering the guardian terminates parental rights as to the minor. (Ill. Rev. Stat. 1987, ch. 37, pars. 802 — 29(2), (3).) A decision to terminate parental rights rests within the sound discretion of the trial court. (In re Allen (1988), 172 Ill. App. 3d 950, 527 N.E.2d 647.) Great deference is afforded such decisions, and a reviewing court will not interfere absent a showing of abuse of discretion. In re Brown (1981), 86 Ill. 2d 147, 427 N.E.2d 84.

After reviewing the record in this case and in light of issues raised by the respondent, some discussion regarding the proceedings for termination of parental rights is in order. Here, the child, M.C., had previously been found to be an abused child and declared a ward of the court. The Act contemplates the filing of a supplemental petition for termination of parental rights, but does not set forth, with any of the particularity afforded wardship proceedings under the Act, the various hearings to be held on the petition. In the case before us, the finding of respondent’s unfitness was determined at an adjudicatory hearing, while the consideration of whether to grant the relief sought (termination of parental rights) was set for various dis-positional hearings. It is manifest the provisions of the Act regarding adjudicatory and dispositional hearings concern wardship proceedings (Ill. Rev. Stat. 1987, ch. 37, pars. 801 — 3(1), (6), 802 — 14, 802 — 22) and not proceedings involving termination of parental rights. A dispositional hearing as to a ward of the court is not required after a parent is found unfit per a petition to terminate. (Ill. Rev. Stat. 1987, ch. 37, pars. 802 — 29(2), (3).) Because a trial court may only consider the best interests of a child after a parent is found unfit (In re Johnson (1977), 54 Ill. App. 3d 627, 370 N.E.2d 560; In re Adoption of Burton (1976), 43 Ill. App. 3d 294, 356 N.E.2d 1279), and here the trial court did not terminate respondent’s parental rights, the proceedings in this case were not improper. With these considerations in mind, we next address the issue raised by respondent.

Respondent raises an issue regarding the finding of her parental unfitness. We need not determine whether respondent could have appealed the unfitness finding in 1988 by means of permissive appeal under Rule 306. The unfitness finding is properly before this court in the present appeal from the order terminating respondent’s parental rights.

On the merits, once a finding of unfitness is made, all considerations must yield to the best interests of the child. (In re T.G. (1986), 147 Ill. App. 3d 484, 488, 498 N.E.2d 370, 373.) Thus, the subsequent proceedings and evidence considered at various review hearings concerned only the best interest of M.C. Any evidence supporting the unfitness finding must be found in the reports received and proceedings conducted through October 27, 1988.

The record shows respondent was found unfit for failure to make reasonable efforts to correct the conditions which led to removal of M.C. and reasonable progress within 12 months of the adjudicatory hearing. (Ill. Rev. Stat. 1987, ch. 40, par. 1501(D)(m).) The evidence of respondent’s unfitness was before this court in respondent’s earlier appeal as to C.K. It need not be recited in full. We do note, however, as we did in C.C., that there is a history of domestic violence between respondent and Jethro Cole. Respondent was repeat edly told continued contact with Cole would jeopardize her chances of reunification with her children. Yet the evidence established respondent’s unwillingness to cooperate with the Department and to cut her ties with Cole. In support of her contention that unfitness had not been proved by clear and convincing evidence in this case, respondent contends the reports from the Department established she had completed a parenting class; maintained regular visits with M.C.; obtained a residence separate from Cole; attended counselling; and obtained full-time employment. While it may be that respondent made some progress in some areas, when viewing all of the evidence from the entire period, we conclude the trial court’s findings are supported by the evidence.

For the foregoing reasons, the orders of the trial court finding respondent an unfit parent and terminating her parental rights to M.C. are affirmed.

Affirmed.

KNECHT, P.J., and GREEN, J., concur.


author: JUSTICE SPITZ

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. AMY JOY CHRISTENSEN, Defendant-Appellant.
    Fourth District
    No. 4—89—0886
    Opinion filed May 24, 1990.

      J. Steven Beckett, of Beckett & Crewell, and Roger B. Webber, both of Champaign, for appellant.
    Nancy Owen, State’s Attorney, of Charleston (Kenneth R. Boyle, Robert J. Biderman, and David E. Mannchen, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE SPITZ

delivered the opinion of the court:

Defendant pleaded guilty to burglary and now appeals from the denial of her motion to withdraw her guilty plea, claiming that the plea was involuntary and taken in violation of her right to counsel. We affirm.

On April 20, 1989, Detective Earl Ashmore of the Charleston police department questioned defendant, an 18-year-old student at Eastern Illinois University, about several items taken from a vehicle on or around April 12, 1989. Defendant admitted taking a citizen’s band radio (CB) and a “fuzz buster” from a vehicle on April 13, 1989, without the owner’s permission. Defendant later sold the items for $10 each.

After defendant admitted taking the items, Detective Ashmore phoned the State’s Attorney, referred to defendant as a “special case,” and asked the State’s Attorney for a “walk-through.” A “walk-through” is a procedure in which qualified defendants agree to plead guilty to the offense charged, and in return are not arrested, spend no time in jail, meet with the probation office, review and sign a probation order prior to a court appearance, appear before the court in a plea hearing, agree to waive a preliminary hearing, and are then given the option to either accept or reject the arrangement. Detective Ashmore informed defendant that by entering a plea of guilty, she would receive two years’ probation and pay restitution and other fees.

On May 3, 1989, an information was filed charging defendant with burglary in violation of section 19 — 1(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, par. 19 — 1(a)). Pursuant to the walk-through agreement, defendant arrived at the Charleston jail, along with her mother, on May 8, 1989, and was directed to the probation office, where she met with probation officer Mike Hughes. Hughes asked defendant whether she had an agreement for the walk-through, and gave her a probation order, which she and Hughes signed. Defendant’s mother then paid Hughes $500 for probation fees and restitution. Hughes told defendant that she could pick up a copy of the probation order with the judge’s signature a few days after the court proceeding.

That same day, May 8, 1989, defendant went to the courtroom with six others who were also tentatively entering guilty pleas. Defendant was not represented by counsel. The trial court extensively admonished defendant of her rights in accordance with Supreme Court Rules 401 (waiver of counsel) and 402 (pleas of guilty). (107 Ill. 2d Rules 401, 402.) The court further explained in detail that by pleading guilty, defendant would waive all her rights. The court added, however, that the seven cases were being heard together to save time and that any one defendant did not have to give up any right simply because one or more of the others had done so. One of the defendants in fact decided to plead not guilty. Defendant acknowledged that she understood the court’s instructions, and informed the court that she still wished to plead guilty and that she was not acting under any threats or promises, but of her own free will.

Twice during the court’s instructions defendant showed some uncertainty and asked the court to clarify her rights. The first inquiry was made after the court explained to defendant her right to a preliminary hearing and asked her if she wished to waive the right. Defendant responded:

“DEFENDANT: I don’t know, Sir.
THE COURT: Well, you have made some kind of agreement with [the assistant State’s Attorney] and he said you would get a certain sentence if you entered a plea of guilty today, is that correct?
DEFENDANT: Correct, Sir.
THE COURT: And is it pursuant to that agreement that you are waiving your preliminary hearing?
DEFENDANT: Yes, Sir.”

The court found defendant to have waived the right to a preliminary hearing.

Defendant also asked the court about her right to an attorney. After the court instructed defendant twice of her right to an attorney, defendant replied that she understood. The court continued:

“THE COURT: Do you have an attorney to represent you in your case, [Miss Christensen]?
DEFENDANT: No, Sir.
THE COURT: Do you want me to consider appointing an attorney to represent you in your case, [Miss Christensen]?
DEFENDANT: I don’t know. Is it really necessary, Sir?
THE COURT: Well, that is only for you to decide. You have the right to be represented by an attorney if you want to and if you can’t afford one, I will consider appointing one for you; but only you can make the decision as to whether you want one or not.
DEFENDANT: Yes, Sir, I guess.
[ASSISTANT STATE’S ATTORNEY]: Your honor, if that is the case, we would have to have her fill out an affidavit.”

The court went into recess so that the assistant State’s Attorney could speak to defendant about obtaining an attorney.

During the recess, assistant State’s Attorney Novak once again instructed defendant of her right to an attorney, and noted that if defendant could not afford one, the court would appoint an attorney to represent her. Defendant asked the assistant State’s Attorney if she would receive what she was “supposed to get” if she went through with the proceeding. Assistant State’s Attorney Novak responded affirmatively. Later in the hearing, defendant was again informed of her continuing right to an attorney but declined to be represented by counsel.

After finding that defendant voluntarily waived her rights and pleaded guilty, the court went over the factual basis for the plea and the evidence that would be presented at trial. Defendant acknowledged that she understood the charges and the factual basis for the plea and the court accepted the walk-through agreement promised defendant.

On June 7, 1989, defendant filed a motion to withdraw her guilty plea, claiming that the plea was entered involuntarily and that she did not voluntarily waive her right to counsel. As her basis for the motion, defendant testified at the October 17, 1989, hearing that she was afraid that if she did not go along with the plea proceedings in the manner expected of her, she would “mess up” the special deal and go to jail. The court denied the motion, and defendant filed a timely notice of appeal.

On appeal, defendant argues that the walk-through procedure created a situation in which she did not knowingly and voluntarily enter her plea of guilty and did not knowingly and intelligently waive her right to counsel. Defendant maintains that the walk-through procedure caused her to misapprehend both facts and law due to the actions of those in authority.

We first address defendant’s argument that the walk-through procedure created a situation which rendered her plea of guilty involuntary. Because a guilty plea is a conviction in itself and involves the waiver of constitutional rights, due process requires the record to affirmatively demonstrate that a guilty plea was entered intelligently and voluntarily. (People v. Jones (1988), 174 Ill. App. 3d 794, 529 N.E.2d 66.) The decision whether to allow a defendant to withdraw a plea of guilty is within the sound discretion of the trial court and will not be disturbed absent an abuse of discretion. (People v. Van Ostran (1988), 168 Ill. App. 3d 517, 522 N.E.2d 851.) Permission to withdraw a plea is granted not as a matter of right, but instead to correct a manifest injustice based on the facts of the case. (People v. Dumas (1977), 50 Ill. App. 3d 637, 365 N.E.2d 1320.) Defendant has the burden of proving that the ends of justice require the withdrawal of the plea. (Dumas, 50 Ill. App. 3d 637, 365 N.E.2d 1320.) To attain a reversal of a trial court’s decision denying a motion to withdraw a guilty plea, a defendant must normally establish that (1) the guilty plea was attributable to a misapprehension of law or fact on his part; (2) he has a defense to the charge(s) worthy of consideration; or (3) there is doubt as to his guilt, and the ends of justice would be better served by a trial of the cause. People v. Cosby (1985), 137 Ill. App. 3d 854, 484 N.E.2d 1165.

Defendant does not claim that she has a defense to the charge or that there is any doubt as to her guilt. Instead, defendant argues that her guilty plea was attributable to a misapprehension of the facts on her part. Defendant argues that Detective Ashmore’s reference to her as a “special case” caused her to believe she was being given a special deal which she should not “mess up.” Hughes also allegedly reinforced defendant’s belief that she should not “mess up” a special deal because she signed a probation order and her mother paid the required amount of restitution and fees. Defendant insists that because the consequences of the plea preceded the guilty plea itself, the plea proceeding was nothing more than a formality, simply another step to comply with without “messing up” and landing in jail. Finally, defendant contends that representations made by the assistant State’s Attorney during the plea hearing reinforced her belief that if she continued to comply with the proceedings and not “mess up,” she would be allowed to continue with her special arrangement. The assistant State’s Attorney told defendant that she would receive what was promised, probation and payment of fees, if she went through with the walk-through proceeding.

To vacate a plea based on a misapprehension of law or fact, the defendant must establish that her mistaken beliefs or impressions were reasonably justified under all the circumstances when those circumstances are judged by an objective standard rather than by the defendant’s own subjective impression. (People v. Hale (1980), 82 Ill. 2d 172, 411 N.E.2d 867.) The only misapprehension defendant alleges is her subjective perception that she would go to jail or get into more trouble if she “messed up.” Defendant presented no evidence other than her subjective perception that this misapprehension was reasonable, and alleged no threats to send her to jail if she did not follow through with the plea. The trial court was not required to accept defendant’s testimony at the motion to withdraw her guilty plea but could instead regard it as at best improbable and at worst false. (Van Ostran, 168 Ill. App. 3d at 521, 522 N.E.2d at 853.) The evidence presented shows only that defendant was promised probation and payment of fees in return for her guilty plea and that defendant accepted and received this agreement.

We further do not agree with defendant’s assertion that the walk-through procedure, along with the representations by Detective Ashmore, Hughes, and Assistant State’s Attorney Mark Novak, created a momentum which rendered her plea involuntary in that it caused her to go ahead with a plea that she did not fully understand. Defendant was an 18-year-old college student who received a very thorough reading of her rights and options as an accused. No misrepresentations were made, or even alleged. Defendant’s argument is contradicted by her own actions at the hearing when she asked the court to explain the waiver of the preliminary hearing and her right to an attorney. It thus cannot be said that defendant failed to understand the court’s instructions and answered the questions by rote. The fact that one of the defendants at the hearing declined to plead guilty and did not “get into more trouble” by “messing up” also casts doubt on defendant’s argument. Defendant therefore could not have reasonably believed that she was compelled to plead guilty, could not change her mind, or that the plea proceedings were a mere formality.

We next address defendant’s argument that she was under a misapprehension of law and facts which caused her to not knowingly and intelligently waive her right to counsel. Supreme Court Rule 401 provides:

“(a) Waiver of Counsel. Any waiver of counsel shall be in open court. The court shall not permit a waiver of counsel by a person accused of an offense punishable by imprisonment without first, by addressing the defendant personally in open court, informing him of and determining that he understands the following:
(1) the nature of the charge;
(2) the minimum and maximum sentence prescribed by law, including, when applicable, the penalty to which the defendant may be subjected because of prior convictions or consecutive sentences; and
(3) that he has a right to counsel and, if he is indigent, to have counsel appointed for him by the court.” 107 Ill. 2d R. 401(a).

A finding of waiver of counsel is not to be lightly made, and the record must demonstrate the accused was offered counsel and knowingly and intelligently refused the offer. (People v. McMurray (1977), 55 Ill. App. 3d 581, 371 N.E.2d 46.) Something more than a routine inquiry by the court is required. (McMurray, 55 Ill. App. 3d 581, 371 N.E.2d 46.) Strict compliance with Rule 401(a) is required with the exception of cases where it appears that the defendant has a high level of legal sophistication. People v. Woods (1980), 84 Ill. App. 3d 938, 405 N.E.2d 1238.

It is clear from the record that the court strictly complied with Rule 401(a). Defendant, however, argues that she lacked legal sophistication and was obviously confused during the hearing so as to not intelligently and voluntarily waive the right to counsel. Defendant cites several cases as examples of appellate courts reversing trial court decisions denying the withdrawal of a guilty plea because of defendants’ confusion. We find defendant’s cases factually distinguishable from the instant case.

Defendant first cites McMurray, in which the defendant, an 18-year-old college student, informed the court that she did not wish to be represented by counsel. (McMurray, 55 Ill. App. 3d 581, 371 N.E.2d 46.) However, as the court there was stating for the record that it found defendant to have waived the right to counsel, the defendant interrupted the court and stated that she did wish to have an attorney. The court, surprised by the statement, asked:

“THE COURT: What? Pardon?
[DEFENDANT]: At, at the present time I don’t wish to have an attorney.
THE COURT: You do?
[DEFENDANT]: I don’t.
THE COURT: Well, that is, I understood that clearly. You are now ready to go, to have your cases heard?
[DEFENDANT]: Yes.” (McMurray, 55 Ill. App. 3d at 585, 371 N.E.2d at 49.)

The appellate court in McMurray found that defendant had not intelligently and voluntarily waived her right to counsel because she demonstrated confusion when questioned about her desire to be represented by counsel. The appellate court stated that the trial court should have inquired further once the defendant appeared confused about her right to counsel. In the instant case, once defendant questioned the court about her right to counsel, she was instructed again by the court and by the assistant State’s Attorney of her right to counsel. After these additional instructions, defendant displayed no confusion and waived her right to counsel. The court followed this waiver by informing defendant of her continuing right to counsel at any time during the proceeding, which defendant acknowledged she understood.

Defendant also relies on People v. Derra (1981), 92 Ill. App. 3d 1106, 416 N.E.2d 688, in which the defendant, an 18-year-old male with a history of a low IQ, nine years of special education, and no criminal history, was charged with driving under the influence and decided that he did not want to be represented by counsel. This court reversed the defendant’s conviction because the circuit court failed to strictly comply with Rule 401(a) by not advising the defendant of the minimum and maximum sentences. In the instant case, the trial court strictly complied with Rule 401(a).

Defendant also cites several cases in which the appellate court rejected arguments that defendants had failed to effectively waive their right to counsel. (People v. Houston (1988), 174 Ill. App. 3d 584, 529 N.E.2d 292; People v. Davis (1988), 169 Ill. App. 3d 1, 523 N.E.2d 165; People v. Kessler (1983), 113 Ill. App. 3d 354, 447 N.E.2d 495.) In each of these cases, the appellate court rejected defendants’ arguments because each defendant showed either obvious legal sophistication or a familiarity with the criminal justice system. Defendant argues here that the record reveals that she was obviously confused with the plea proceeding, thereby demonstrating her lack of legal sophistication. While defendant may have lacked the requisite legal sophistication, the trial court strictly complied with Rule 401(a), which was all that was required.

Finally, defendant argues that the trial court erred because it did not inform her that she could halt the proceedings and hire an attorney of her own choosing in addition to having one appointed for her. Defendant’s argument is without merit. Defendant received an extensive reading of her right to counsel pursuant to Rule 401(a). Included in this reading was the explanation of defendant’s right to have an attorney during the- entire proceeding and the fact that the court would appoint an attorney to represent defendant if she could not afford one. Defendant offers no authority for the proposition that the trial court was obligated to inform her that she could halt the proceedings and hire her own attorney, even after admonishing defendant of her right to an attorney pursuant to Rule 401(a). We decline to create the authority for such an instruction.

We find no abuse of discretion by the trial court and accordingly affirm the trial court’s decision.

Affirmed.

KNECHT, P.J., and GREEN, J., concur.