author: PRESIDING JUSTICE WOMBACHER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LYNN L. SEDREL, Defendant-Appellant.
    Third District
    No. 3—88—0536
    Opinion filed April 5, 1989.
    — Rehearing denied July 12, 1989.

      Stephen Omolecki, of State Appellate Defender’s Office, of Ottawa, for appellant.
    John A. Barra, State’s Attorney, of Peoria (Judith Z. Kelly, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE WOMBACHER

delivered the opinion of the court:

The defendant was convicted of unlawful possession with intent to deliver a controlled substance. She appeals the denial of her motion to quash a search warrant and suppress evidence seized from the execution of said warrant, and her resulting conviction and sentence.

On October 27, 1987, the defendant, Lynn Sedrel, leased an apartment from Mr. James Haggerty on a month-to-month basis. She paid one month’s rent and security deposit to Mr. James Haggerty (hereinafter Haggerty) on October 27, 1987. The lease permitted Haggerty to enter defendant’s apartment at reasonable times to repair or inspect the premises. Defendant’s lease contained a provision for a late charge to be assessed when rent was paid more than five days late. Throughout the existence of defendant’s lease, Haggerty went to her apartment on several occasions, but found no one home on each occasion.

As of November 30, 1987, the Monday following Thanksgiving, Haggerty did not receive defendant’s rent check for the next month. Haggerty received no notification from defendant the she intended to move and terminate her lease, nor did he give notice to defendant regarding the late payment of her rent or any other matter. After finding that no one answered at defendant’s apartment, Haggerty asked two other tenants to accompany him into her apartment to determine if she still resided therein. Upon entering, Haggerty observed a scale resembling the type used to measure drugs. One of the other tenants noticed plastic bags containing a white soapy substance located within an open safe in a closet of defendant’s apartment. Haggerty was not familiar with the appearance of cocaine, so he notified the police based only on his suspicion.

Haggerty related what he observed to the police when they arrived at the apartment. The police did not have a search warrant and indicated they believed they had insufficient information at that point to obtain one. Haggerty consented to their entry into and search of defendant’s apartment. They removed a portion of the white substance, field-tested it, and determined it to be cocaine. Then they secured her apartment and obtained a search warrant.

The trial court found that Haggerty had a valid reason to enter defendant’s apartment, entered after the termination of her lease, was not acting as an agent for the police, and therefore denied her motion to quash and suppress.

At trial, the same evidence was introduced regarding the events leading up to the search. In addition, defendant in her testimony claimed only to be a bookkeeper for Steven Spears, who was in charge of the cocaine operation and had possession of all the keys to the apartment. She stated she had no knowledge regarding the source of the cocaine or who Spears’ customers were.

The State’s expert analyzed approximately two ounces of cocaine. She weighed numerous other bags containing a white substance, which totalled about 26 ounces.

The trial court found defendant guilty, denied her post-trial motion, and sentenced defendant to a 7½-year term of imprisonment. The court also fined defendant $33,800, the street value of the cocaine in the analyzed and unanalyzed bags.

The defendant claims the search of her apartment was unlawful because it was based upon invalid consent of her landlord. We agree.

Both the United States and Illinois Constitutions protect individuals from unlawful searches and seizures. (U.S. Const., amend. IV; Ill. Const. 1970, art. I, §6.) The physical entry into one’s home by the police is the chief evil against which the fourth amendment is directed. (Payton v. New York (1980), 445 U.S. 573, 63 L. Ed. 2d 639, 100 S. Ct. 1371.) Warrantless searches of residences are per se unreasonable unless justified by a specific exception to the warrantless search rule. (Payton, 445 U.S. at 586, 63 L. Ed. 2d at 651, 100 S. Ct. at 1380.) The only possible exception that could exist in this matter is that Haggerty consented to the search; however, searches must usually be consented to by the person affected. Davis v. United States (1946), 328 U.S. 582, 90 L. Ed. 1453, 66 S. Ct. 1256.

Generally, a landlord cannot, during the pendency of a lease, validly consent to a search of the leased premises. (Chapman v. United States (1961), 365 U.S. 610, 5 L. Ed. 2d 828, 81 S. Ct. 776.) Haggerty could not effectively consent to the search by the police of defendant’s apartment. Haggerty’s right to occupancy was not equivalent or greater than defendant’s. The fact that he had authority under the lease to periodically enter her apartment only to inspect or repair the premises at reasonable times did not permit him to disregard the defendant’s fourth amendment rights by consenting to the initial search of defendant’s apartment, thereby subjecting her to an unreasonable search and seizure.

The initial search by the police pursuant to Haggerty’s invalid consent violated defendant’s fourth amendment rights. Without the initial intrusion by the police following Haggerty’s consent, the police would not have had any knowledge whether the white substance was cocaine. If they could have obtained a search warrant prior to entering defendant’s apartment, the case might have been closer. The police, however, admitted they did not have a sufficient basis from Haggerty’s statement to obtain a search warrant until they field-tested the substance and determined it was cocaine.

The trial judge found the lease expired or was terminated on November 30, 1987. We disagree. The defendant’s rent was only three days overdue, the five-day grace period did not even commence, and late charges could not have been assessed until two days subsequent thereto. That is insufficient time to lead one to believe the premises had been abandoned. Due to the holiday season, it is possible the defendant overlooked her rent obligation or was out of the vicinity. The landlord could not have considered defendant’s lease terminated and sued to recover possession until after providing written notice demanding payment to defendant. Ill. Rev. Stat. 1987, ch. 110, par. 9— 209.

A similar result was reached in Oregon. The Oregon Appeals Court in State v. Taggert (1971), 7 Or. App. 479, 491 P.2d 1187, held the landlord could not consent to a search of a tenant’s apartment even when the rental payment was over 30 days overdue. The proper inquiry justifying a search was whether the defendant had a reasonable expectation of privacy in a leased premises.

The search and seizure of defendant’s apartment was unreasonable. The landlord could not effectively have consented to the search of defendant’s apartment, and there were no other applicable exceptions to the warrantless search rule. The trial judge’s denial of defendant’s motion to suppress was contrary to the weight of authority and was erroneous.

The defendant contends the fine assessed was excessive. We agree. The trial court imposed a fine based upon the weight of all the substance confiscated from her possession. The police seized a total of approximately 26 ounces of a white substance believed to be cocaine; however, they only positively identified two ounces of cocaine. In order to impose a fine commensurate to the value of the cocaine seized, it is imperative that the substance seized be conclusively established as cocaine. See People v. Games (1981), 94 Ill. App. 3d 130, 418 N.E.2d 520.

Based on the foregoing, the circuit court of Peoria County is reversed as to defendant’s conviction and this matter is remanded for a new trial and further proceedings consistent with this decision.

Reversed and remanded.

STOUDER and SCOTT, JJ., concur.


source: Caselaw Access Project

author: JUSTICE SCOTT

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CLARENCE DACE, Defendant-Appellant.
    Third District
    No. 3—88—0575
    Opinion filed June 16, 1989.

      Thomas A. Lilien, of State Appellate Defender’s Office, of Elgin, for appellant.
    Edward Burmilla, State’s Attorney, of Joliet (Walter P. Hehner, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE SCOTT

delivered the opinion of the court:

Defendant was indicted for two counts of murder for causing the death of Roseleen Kilcoyne. After trial by jury, defendant was convicted on both counts and subsequently sentenced to natural life imprisonment. Defendant took a timely appeal, and on March 23, 1987, this court reversed the convictions and remanded the cause for a new trial. (People v. Dace (1987), 153 Ill. App. 3d 891, 506 N.E. 2d 332) (Dace I).) A second jury trial was then held, wherein defendant was again convicted of murder and felony murder. Once again, defendant was sentenced to natural life imprisonment on the felony murder conviction. Defendant now appeals his conviction and sentence after retrial for various reasons outlined hereinafter.

The underlying facts of this case are adequately stated in Dace I and will only be reiterated here as necessary in deciding the issues presented. Defendant first argues the trial court lacked jurisdiction to issue a search warrant for the seizure of impressions of defendant’s teeth on April 8, 1987. The basis for defendant’s objection is the State had pending a petition to the Illinois Supreme Court for leave to appeal this court’s decision in Dace I at the time the search warrant was issued. Moreover, one of the central issues on appeal in Dace I was whether probable cause existed for the issuance of a prior search warrant to obtain similar dental impressions of the defendant. The State’s petition for leave to appeal to the Illinois Supreme Court was subsequently denied on October 29, 1987, and the retrial then proceeded with the State using as evidence the dental impressions obtained via the search warrant issued April 8,1987.

It is generally correct that when a timely notice of appeal is filed, the jurisdiction of the appellate court attaches instanter and the circuit court is divested of jurisdiction. (Daley v. Laurie (1985), 106 Ill. 2d 33, 476 N.E. 2d 419; People v. Baker (1980), 85 Ill. App. 3d 661, 406 N.E. 2d 1152.) Trial courts, however, do retain jurisdiction to perform ministerial functions (People v. McBride (1983), 114 Ill. App. 3d 75, 448 N.E. 2d 551) and to hear and determine matters independent of and collateral to the judgment being appealed. (People v. Larry (1986), 144 Ill. App. 3d 669, 494 N.E. 2d 1212; People v. Verdone (1985), 136 Ill. App. 3d 75, 482 N.E. 2d 1134.) Nonetheless, as to matters integrally related to the appeal, appellate court jurisdiction continues until the mandate of that court is filed in the circuit court. McBride, 114 Ill. App. 3d 75, 448 N.E. 2d 551; Baker, 85 Ill. App. 3d 661, 406 N.E. 2d 1152.

The obvious question herein is whether the trial court lacked jurisdiction to issue a second search warrant on April 8, 1987, when an issue of defendant’s case on appeal in Dace I was the propriety of the prior search warrant. In other words, is the issuance of the second search warrant independent of and collateral to the issues of the case on appeal. We believe it is.

In Dace I, we determined the search warrant was improperly issued for lack of probable cause. Defendant does not claim on appeal in this case that the court lacked probable cause, merely that the court had no jurisdiction to issue the second warrant. Issuance of the second search warrant, however, in no way affected the appeal of Dace I. It was issued pursuant to an independent affidavit and testimony and was necessitated by our decision that the evidence seized pursuant to the first warrant should have been suppressed. We note that the Illinois Supreme Court’s mandate did not issue until October of 1987, roughly seven months after the second warrant was issued. To determine that the State must wait such a length of time to pursue its investigation and evidence gathering is not sound public policy, as time is often of the essence in certain investigatory situations. The trial court was not making any determination regarding the propriety of the first warrant and thus had jurisdiction to issue a new search warrant while Dace I was pending on appeal. The cases of People v. Circella (1972), 6 Ill. App. 3d 214, 285 N.E. 2d 254, McBride (114 Ill. App. 3d 75, 448 N.E. 2d 551), and Verdone (136 Ill. App. 3d 75, 482 N.E. 2d 1134), cited by defendant as support for his position, are factually dissimilar to the present case.

Defendant next argues that the trial court committed reversible error in precluding defendant from cross-examining an inmate-witness to an alleged admission by defendant about the conviction and sentence received by the witness’ codefendant. The witness, Victor Moffett, was a fellow inmate of the defendant, while defendant was detained in the Will County jail, in March of 1985. Moffett claimed he heard defendant state he struggled with Kilcoyne, grabbed a gun from her and shot her, when she caught him committing a theft in the tavern where she worked. At the time of the retrial, Moffett faced pending charges of. aggravated battery and unlawful use of weapons and was also on probation for 1985 charges of armed robbery and home invasion.

The defense revealed in cross-examination that in 1985, Moffett was in jail for armed robbery and home invasion with bond set at $30,000 and then suddenly released from custody on a recognizance bond after coming forward with defendant’s admissions. Moreover, Moffett subsequently negotiated a reduction of his own charges with the State from nonprobationable Class X felonies to lesser offenses and was sentenced to four years’ probation. It was further elicited that Moffett’s probation had not been revoked even though he had been subsequently charged with aggravated battery and unlawful use of weapons. The trial court, however, limited defendant’s cross-examination of Moffett regarding what had happened to his codefendant on the 1985 charges of armed robbery and home invasion for the reason that it “stretches the relevance considerably.”

Defendant correctly indicates that wide latitude should be given when cross-examining a witness on the subject of bias, interest or a motive to testify falsely. (People v. Triplett (1985), 108 Ill. 2d 463, 485 N.E. 2d 9.) It is entirely relevant for the cross-examiner to delve into evidence that the witness is currently under arrest, indictment (Triplett, 108 Ill. 2d 463, 485 N.E. 2d 9) or incarcerated (Alford v. United States (1931), 282 U.S. 687, 75 L. Ed. 624, 51 S. Ct. 218). It is also immaterial whether the arrest(s) used for impeachment involves the same occurrence for which the defendant is on trial. (Triplett, 108 Ill. 2d 463, 485 N.E. 2d 9.) Nonetheless, as a general rule, the latitude allowed in cross-examination rests largely in the discretion of the trial court and it is “only in a case of clear abuse of such discretion, resulting in manifest prejudice to the defendant, that a reviewing court will interfere.” (People v. Halteman (1956), 10 Ill. 2d 74, 86, 139 N.E.2d 286.) Irrelevant evidence which tends to mislead the jury should be excluded. People v. Santiago (1987), 161 Ill. App. 3d 634, 515 N.E. 2d 228.

Defendant’s goal in cross-examination was to show that Moffett was given leniency for his testimony. The record indicates that defendant’s cross-examination pertaining to leniency was thorough and effective. Defendant argues, however, the point would not completely hit home to the jurors unless Moffett was questioned about the more extreme sentence received by his codefendant in the armed robbery and home invasion arrests. Considering the questionable relevance of the testimony, along with the other evidence introduced regarding leniency, we believe the trial court did not abuse its discretion in excluding the evidence. Permitting testimony of Moffett’s codefendant’s sentence would have necessitated, in essence, a reexamination by the jury of the codefendant’s sentencing hearing, taking into account all of the factors considered by the court in determining an appropriate sentence. Although more extensive cross-examination is permitted in situations where a defendant is trying to show the bias of or a motive for a witness to testify falsely, such examination must still be within the bounds of reasonableness. (Triplett, 108 Ill. 2d 463, 485 N.E. 2d 9.) The evidence taken could have been reasonably interpreted by the jury as indicating Moffett received leniency for his testimony and therefore had a motive to testify falsely. The subject evidence, if allowed, would have unduly sidetracked the jury.

Defendant next contends that he was denied a fair trial because of certain remarks made by the prosecution in rebuttal argument at closing. We note initially that defendant has waived the issue of whether the prosecution committed error in closing for all allegations of error except one because no timely trial objection was made nor was a written post-trial motion filed. People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E. 2d 1124.

The one instance of alleged error preserved for review involves the following statement by the assistant State’s Attorney:

“One thing, as Ms. Badger says, the burden of proof, beyond a reasonable doubt. And it’s not as she would like to indicate, or have you believe. It’s not beyond all figment of everyone’s imagination. That is not the burden. Beyond a reasonable doubt.”

The State claims that defendant’s counsel invited the above comment by attempting to discredit the testimony of the State’s witnesses. We do not necessarily agree, but, regardless, do not believe the above-quoted remark rises to the level of reversible error. The cases considering remarks regarding the standard of proof uphold reversal where the remark tends to lessen the State’s burden of proof. (See People v. Bryant (1983), 94 Ill. 2d 514, 447 N.E. 2d 301; People v. Ellis (1985), 134 Ill. App. 3d 924, 481 N.E. 2d 320; People v. Eddington (1984), 129 Ill. App. 3d 745, 473 N.E. 2d 103; People v. Robinson (1984), 125 Ill. App. 3d 1077, 467 N.E. 2d 291; People v. Gray (1979), 80 Ill. App. 3d 213, 399 N.E. 2d 206.) The assistant State’s Attorney’s remark was simply a nonsensical statement that in no way tended to lessen the State’s burden of proof.

Defendant next charges that the trial court erroneously sentenced defendant to a term of natural life imprisonment on two grounds. First, that the statutory scheme for sentencing a defendant eligible for the death penalty is unconstitutional, and second, the sentence of natural life imprisonment imposed upon defendant was unfair and excessive. As to the constitutional argument, defendant acknowledges that the issue was not raised at the trial court, although mentioning the issue was raised in Dace I. Nonetheless, defendant maintains that this court should review the matter as plain error under Supreme Court Rule 615(a) (107 Ill. 2d R. 615(a)). Defendant maintains the sentencing scheme is unconstitutional, because it allows for a defendant to be sentenced to natural life imprisonment without being eligible for an extended-term sentence of what was then 40-80 years. In essence, no middle ground is available for a judge in certain felony murder scenarios such as the present case. We decline to review the sentencing scheme for two reasons. First, the defendant did not raise the issue at the trial level, and second, because the very issue defendant wants reviewed has already been recently decided contrary to defendant’s position in People v. Bowen (1985), 133 Ill. App. 3d 994, 479 N.E. 2d 997, and we adhere to the Bowen court’s rationale and decision. Furthermore, in light of Bowen we decline defendant’s invitation to review the sentencing scheme as plain error.

We further decline to hold the imposition of natural life imprisonment was unfair and excessive under the circumstances of this case. Defendant claims this sort of felony murder is not the type of crime for which natural life imprisonment was intended because defendant did not enter the bar with the intent to rob and kill the victim. The defendant, however, was convicted, by a jury, of felony murder, meaning that he was proven to have intended to do the acts he did. The trial court is in the best position to determine a proper sentence (People v. Almo (1985), 108 Ill. 2d 54, 483 N.E. 2d 203), and its decision will not be disturbed, absent a clear abuse of discretion. People v. Cox (1980), 82 Ill. 2d 268, 412 N.E. 2d 541.

The trial court in this case had sufficient basis to impose natural life imprisonment. First, the statute allows for such sentence (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8—1 (a)(1)(b)), and second, defendant showed signs of lacking rehabilitative capacity in that he has a prior criminal record and was convicted of tvzo offenses subsequent to the present offense. The trial court acted within the bounds of its discretion.

The last point of controversy regards defendant’s assertion that if his subsequent conviction for criminal sexual assault is reversed on appeal, his case should be remanded for a new sentencing hearing. Defendant’s sexual abuse case was in fact reversed on appeal by decision dated May 2, 1989. (People v. Dace (1989), 182 Ill. App. 3d 444.) The primary reason, however, for imposition of natural life imprisonment in this case was the murder was committed in the course of a forcible felony. Although subsequent convictions have some significance regarding potential for rehabilitation, we note that even though the sexual assault conviction was reversed, defendant was still subsequently convicted of escaping from the Will County jail. We simply fail to see how the reversal of the sexual assault conviction would significantly change the trial court’s sentencing determination and refuse to remand the cause for sentencing on this ground.

Finally, both sides agree and we concur that the trial court erroneously included in the amended mittimus to the Department of Corrections that defendant was sentenced to a natural life term for both murder and felony murder. The trial court’s sentence was based solely on the felony murder charge; therefore, we remand the cause for the trial court to amend the mittimus to indicate that defendant was sentenced to natural life for only the felony murder charge.

This cause is remanded for the limited purpose of amending the mittimus consistent with this opinion and is otherwise affirmed.

Remanded in part and affirmed in part.

HEIPLE and STOUDER, JJ., concur.


author: JUSTICE STOUDER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee and Cross-Appellant, v. LEAMON JORDAN, Defendant-Appellant and Cross-Appellee. — THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant and Cross-Appellee, v. LEAMON JORDAN, Defendant-Appellee and Cross-Appellant.
    Third District
    Nos. 3—88—0505, 3—88—0518 cons.
    Opinion filed June 16, 1989.
    —Rehearing denied July 14, 1989.
    Edward F. Masters and Edward Burmilla, State’s Attorneys, of Joliet (John X. Breslin and Gary F. Gnidovec, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Robert Agostinelli and Peter A. Carusona, both of State Appellate Defender’s Office, of Ottawa, for Leamon Jordan.
   JUSTICE STOUDER

delivered the opinion of the court:

Both the State and Leamon Jordan appeal from the judgment of the circuit court of Will County, which, after a hearing on Jordan’s post-conviction petition, reduced his sentence of imprisonment. Jordan was convicted of murder and kidnapping and was given extended sentences of 60 years’ imprisonment and 14 years’ imprisonment for the respective crimes. This court affirmed the judgment of conviction and sentence (People v. Jordan (1983), 114 Ill. App. 3d 16, 448 N.E.2d 237), and the supreme court of Illinois affirmed the judgment convicting Jordan, but reduced the concurrent kidnapping sentence from 14 to 7 years’ imprisonment (People v. Jordan (1984), 103 Ill. 2d 192, 469 N.E.2d 569). Jordan filed this post-conviction petition some three years later, seeking relief from the alleged ineffective assistance of his defense counsel.

Jordan’s petition relates and the circuit court found that Jordan’s defense counsel was ineffective in two respects: first, in failing to encourage Jordan to accept the State’s offer of a recommended sentence of 20 years’ imprisonment in exchange for his testimony against the alleged codefendants in the murder for which he was convicted and, second, in having Jordan testify, repudiating line for line his prior confession to involvement in the crimes, after the defense counsel lost two motions to exclude Jordan’s confession. The circuit court, having further found that Jordan, at the post-conviction hearing, admitted his involvement in the murder and that Jordan was “ruined” as a State’s witness, concluded that the most appropriate form of relief was to reduce Jordan’s 60 years’ imprisonment sentence to a sentence of 35 years’ imprisonment.

In this appeal, the State argues that the circuit court erred in concluding that Jordan’s defense counsel was ineffective. Jordan contrarily argues that the circuit court was correct in its conclusion but asserts that the court erred in failing to grant greater relief. Jordan argues alternatively that the circuit court’s judgment reducing his sentence to 35 years’ imprisonment should be affirmed.

In arguing their respective positions, both parties cite to the standard relating to ineffective assistance of counsel set by the Supreme Court of the United States in Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052. To support a relievable claim of ineffective assistance of counsel under Strickland, a defendant must show that there is a reasonable probability that the result of the proceeding would have been different but for the fact that defense “counsel’s representation fell below an objective standard of reasonableness.” 466 U.S. at 688, 80 L. Ed. 2d at 693,104 S. Ct. at 2064.

In this case there is no argument that the outcome of the trial would have been different had Jordan’s defense counsel assisted differently. In fact, as the circuit court noted, Jordan, at the hearing on his post-conviction petition, admitted again his involvement in the kidnapping and murder. Thus, because there was no prejudice to Jordan with respect to the finding of guilt, there is no merit to the assertion that Jordan’s counsel rendered ineffective assistance by having Jordan testify. There remains, therefore, only the question of whether Jordan’s counsel’s advice to reject the State’s offer of a sentence of 20 years’ imprisonment constitutes ineffective assistance of counsel.

In this regard, Jordan relies substantially on Turner v. Tennessee (M.D. Tenn. 1987), 664 F. Supp. 1113, aff’d (6th Cir. 1988), 858 F.2d 1201. In Turner the defendant, relying on the advice of counsel, rejected the State’s offer of a sentence of two years’ imprisonment if he would plead guilty to one of the three counts charged against him. The defendant was subsequently convicted of all the counts, including kidnapping and murder, and sentenced to life imprisonment. After losing his State court appeals, Turner sought Federal habeas corpus relief, asserting primarily that he suffered a violation of his right to effective assistance of counsel when he relied to his detriment on his counsel’s advice to reject the State’s offer.

In support of his claim of ineffective assistance of counsel, Turner introduced evidence that his attorney “had an inflated estimate of his own abilities, an unrealistic estimate of the probabilities of outcome at trial, and a casual attitude toward trial preparation.” (664 F. Supp. at 1115 n.6.) There was also evidence that Turner’s attorney “used cocaine and consorted with prostitutes during the weekend that preceded trial.” (664 F. Supp. at 1115 n.6.) Turner’s counsel’s advice to reject the State’s offer was particularly unreasonable considering that at least two eyewitnesses — a codefendant and a victim — were available to testify against Turner. (664 F. Supp. at 1114.) In fact, cocounsel to the defendant, who had advised all along that Turner accept the State’s offer, testified that he thought the decision to go to trial was “ludicrous.” (664 F. Supp. at 1121.) Moreover, an attorney for one of Turner’s codefendants, who had advised his client to accept the same offer .which had been made to Turner, informed Turner’s attorneys that Turner would “be crazy not to take” the two-year offer. (664 F. Supp. at 1121.) The district court, giving deference to these facts as found by the State court, concluded that Turner’s counsel rendered ineffective assistance and granted relief.

While the Turner case provides some authority for Jordan’s position that ineffective assistance of counsel in deciding to reject an offer may result in the need to reinstate the offer, we note that unlike the substantiated assertions in Turner there is little, if any, evidence in this case, other than Jordan’s own self-serving assertions, to support Jordan’s argument that his counsel rendered unreasonable advice. Jordan’s counsel, for instance, did not, as did the counsel in Turner, have to defend against eyewitness testimony of both a victim and a codefendant. Additionally, there is no evidence that Jordan’s counsel was unreasonable in his estimation that Jordan would most likely receive a sentence not in excess of 30 years’ imprisonment if convicted. Jordan’s counsel’s basis for such an estimation was most likely founded on the fact that while Jordan was present at the time of the crimes, he did not, according to his subsequently refuted confession, commit the murder. (See People v. Jordan (1983), 114 Ill. App. 3d 16, 448 N.E.2d 237.) Moreover, Jordan’s counsel did not, like the counsel in Turner, appear to suffer from an exaggerated view of his abilities. On the contrary, the circuit court considered that Jordan’s defense counsel, particularly in handling pretrial motions to exclude evidence, acted as an “extremely gifted and competent attorney.” Thus, the Turner case has a factual basis which is absent from the case at bar, and there is otherwise no basis in the record for the circuit court to have concluded that Jordan’s counsel rendered ineffective assistance in advising Jordan to reject the State’s offer. Therefore, we hold that the circuit court erred in concluding that Jordan received ineffective assistance of counsel, and we accordingly reverse its judgment.

Reversed.

HEIPLE and SCOTT, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DERRICK WILLIAMS, Defendant-Appellant.
    Third District
    No. 3—88—0285
    Opinion filed June 8, 1989.

      Robert Agostinelli, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Edward F. Masters, State’s Attorney, of Joliet (Gary F. Gnidovec, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE SCOTT

delivered the opinion of the court:

A jury convicted the defendant, Derrick Williams, of armed violence and aggravated battery (Ill. Rev. Stat. 1987, ch. 38, pars. 33A— 2, 12 — 4(a)). Prior to sentencing, the trial court vacated the aggravated battery conviction. The defendant was then sentenced to a term of 10 years’ incarceration, to be served consecutively to a four-year sentence imposed following a prior guilty plea to residential burglary. The defendant appeals the imposition of a consecutive sentence. We affirm.

The record shows that the defendant was originally charged with residential burglary. While he was on pretrial release in that case, he committed the instant offenses of armed violence and aggravated battery. On December 30, 1987, the defendant was tried and convicted of the offenses he committed while on pretrial release, but was not sentenced. On January 5, 1988, he entered a plea of guilty to residential burglary and was sentenced to a four-year term of imprisonment. On April 15, 1988, the defendant was sentenced to a consecutive term of 10 years’ imprisonment on the armed violence conviction.

On appeal, the defendant argues that he was not eligible for a consecutive sentence under the statute in effect at the time the offense was committed and therefore the 10-year armed violence sentence should be vacated. At the time the offenses were committed, section 5 — 8—4(h) of the Unified Code of Corrections (Code) (Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 8—4(h)) provided:

“If a person charged with a felony commits a separate felony while on pre-trial release, any sentence imposed upon conviction of that separate felony shall be consecutive to any sentence imposed upon conviction of the original felony.”

The defendant contends that the statute contemplates that a defendant will be first convicted and sentenced for the original felony, and then convicted and sentenced for the felony committed while on pretrial release. Therefore, because he was first tried for the pretrial offenses rather than the original felony, he argues that a consecutive sentence was improper.

In support of his position, the defendant refers to the amendment of section 5 — 8—4(h) of the Code, which now provides:

“If a person charged with a felony commits a separate felony while on pre-trial release, the sentences imposed upon conviction of these felonies shall be served consecutively regardless of the order in which the judgments of conviction are entered.” (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8—4(h).)

The defendant argues that the statute was amended because the legislature realized the quirk in the law applicable to a case such as his and therefore changed the statute to provide that a consecutive sentence can be imposed regardless of the order of the convictions.

The State argues that the statute in existence at the time the defendant committed the offenses required only that the defendant be sentenced for the original felony before he was sentenced for the felony committed while on pretrial release. It contends that the amendment merely clarified the legislature’s original intent.

The fundamental objective of statutory construction is to ascertain and give effect to the legislature’s intent. (People v. Scott (1974), 57 Ill. 2d 353, 312 N.E.2d 596.) The language used in a statute is the primary source for determining this intent, and where that language is certain and unambiguous, the proper function of the court is to enforce the statute as enacted. People ex rel. Gibson v. Cannon (1976), 65 Ill. 2d 366, 357 N.E.2d 1180.

We find that section 5 — 8—4(h) as enacted at the time these offenses were committed required only that the defendant be sentenced on the original felony before he was sentenced for the felony committed while on pretrial release. (See People v. Clodfelder (1988), 176 Ill. App. 3d 339, 530 N.E.2d 1173.) The unambiguous language of the statute imposed no requirement that the convictions occur in a certain order. Further, there is no convincing legal or practical rationale for implying such a requirement.

In the instant case, the defendant was sentenced for residential burglary on January 5, 1988. He was then sentenced for the armed violence offense on April 15, 1988. The trial court could therefore properly impose a consecutive sentence for the armed violence conviction.

With regard to the defendant’s argument that in amending the statute the legislature intended to effect some change in the law as it formerly existed, we note that a subsequent amendment may be interpreted to indicate a legislative intent to clarify the law rather than change it. (People v. Bratcher (1976), 63 Ill. 2d 534, 349 N.E.2d 31; In re Marriage of Blaisdell (1986), 142 Ill. App. 3d 1034, 492 N.E.2d 622.) Thus, to the extent one could argue that an ambiguity existed in the prior statute, the legislature’s amendment merely clarified its intent that in imposing a consecutive sentence the order in which the convictions were entered would be of no effect.

The determination that a consecutive sentence should be imposed is left to the discretion of the trial judge and will not be disturbed absent a showing of an abuse of that discretion. (People v. Coleman (1980), 91 Ill. App. 3d 646, 415 N.E.2d 553.) We do not find under the facts of the instant case that the trial judge abused his discretion when he ordered the defendant to serve his sentence for armed violence consecutively to his sentence for residential burglary.

We note that our decision renders moot the defendant’s second argument on appeal that if his sentence were ordered to run concurrently he would be entitled to credit against his sentence for the time he spent in custody between the date he was sentenced for the residential burglary offense and the date he was sentenced in the instant case. See People v. Pluskis (1987), 162 Ill. App. 3d 449, 515 N.E.2d 480.

The judgment of the circuit court of Will County is affirmed.

Affirmed.

WOMBACHER and BARRY, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JACKSON L. NEELY, Defendant-Appellant.
    Third District
    No. 3—87—0531
    Opinion filed June 16, 1989.
    — Rehearing denied July 21, 1989.

      Frank W. Ralph, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Gary L. Peterlin, State’s Attorney, of Ottawa (Nancy Rink Carter, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE SCOTT

delivered the opinion of the court:

A jury found the defendant, Jackson L. Neely, guilty of robbery, intimidation, and aggravated battery (Ill. Rev. Stat. 1985, ch. 38, pars. 18 — 1, 12 — 6(a)(1), 12 — 4(a)). The trial court sentenced him to concurrent terms of 12 years on the robbery count, 8 years on the intimidation count, and 8V2 years on the aggravated battery count. The defendant appeals.

Prior to trial, the State filed a motion in limine seeking to exclude all evidence of an alleged cocaine delivery made by the victim, Thomas Bowers, to Neely’s codefendant, Gary Goldsmith, on the evening of the alleged offenses. At the hearing on the motion, defense counsel stated that Gary Goldsmith and Madelyn Ugolini would testify that, 45 minutes prior to the alleged offenses, Bowers had sold a small quantity of cocaine to Goldsmith. The trial court granted the motion over the defendant’s objection.

At trial, Thomas Bowers testified that at about 4 p.m. on March 21, 1986, he had met Gary Goldsmith in a Mendota tavern. Around 6 p.m., Bowers, Goldsmith, and Bill Askey drove to a low-income housing unit in Mendota and picked up the defendant. They then rode to Bowers’ trailer, where they played music and drank beer.

Bowers testified that at about 8 p.m., he, Goldsmith, and the defendant returned to the low-income housing unit. Inside, the defendant approached Bowers from behind and hit him on the back of the head, causing Bowers to fall to the floor. The defendant then kicked Bowers in the face, held him down by the hair, and stepped on his forehead. After kicking him some more, the defendant took $20 from Bowers’ pocket and stole his wallet.

Bowers further testified that the defendant and Goldsmith blindfolded him and drove him out into the country, where they left him. According to Bowers, the defendant stated that if Bowers told anyone about the incident they would kill him. Bowers found his way to the home of a friend, who gave him a ride home. He later received medical treatment for his injuries. While in the hospital, a police officer questioned him about the offense. Bowers identified the defendant in a police photo book as one of his assailants.

On cross-examination, Bowers testified that he did not know who had struck the first blow. He also said he did not know if Goldsmith kicked him or took his wallet.

The codefendant, Gary Goldsmith, testified for the defense. Goldsmith, who had pled guilty to a charge of aggravated battery in the instant cause, stated that he was the defendant’s friend and cousin. He also testified that he, not the defendant, had beaten Bowers. He had done so because earlier in the evening Bowers had sold him something that Goldsmith did not believe was worth the $20 he had paid for it. According to Goldsmith, during the fight the defendant had helped get the children out of the way and had tried to stop Goldsmith from beating Bowers. Goldsmith stated that he alone had taken the $20 from Bowers, blindfolded him, and driven him into the country.

Madelyn Ugolini corroborated Goldsmith’s testimony that when Goldsmith had started hitting Bowers, she and the defendant had taken the children upstairs. She also stated that the defendant pleaded with Goldsmith to stop.

The defendant first argues on appeal that the trial court erred in excluding evidence of the alleged drug delivery Bowers made to Goldsmith on the evening of the offenses. The defendant contends that he was denied his constitutional right to present a defense and to confront his accusers.

The State replies that the defendant has waived this issue because he did not make an offer of proof at trial nor did he properly raise it in his post-trial motion. We note, however, that the motion in limine was based on statements by Goldsmith and Ugolini which were disclosed in discovery. The defendant also stated in his post-trial motion that the trial court had improperly granted the motion in limine because it prevented the defendant from revealing all of the facts to the jury. Under these circumstances, we find that the defendant sufficiently preserved this issue for review.

Addressing the merits, we find that the evidence lent credibility to Goldsmith’s testimony that he, rather than the defendant, had attacked Bowers. Though there was evidence that Bowers had cheated Goldsmith in the sale of something, the jury was left wondering why Goldsmith would react so violently to having been cheated. The exclusion of the evidence made Goldsmith’s account less credible, and it therefore offended the principle that a defendant is entitled to all reasonable opportunities to present evidence which might tend to create doubt as to his guilt. (People v. Cole (1964), 30 Ill. 2d 375, 196 N.E.2d 691.) Accordingly, we find that the trial court erred in granting the motion in limine and we reverse the defendant’s convictions.

The defendant raises two other issues which may recur upon retrial. We shall therefore address them at this time.

The defendant argues that the trial court erred in admitting two police photographs of him into evidence. He contends that the photographs improperly suggested to the jury that he had been involved in criminal activity prior to the instant offenses.

The admission of police photographs into evidence is not error per se, even if they imply that the defendant was previously involved in criminal activity. (People v. Friedman (1986), 144 Ill. App. 3d 895, 494 N.E.2d 760.) In particular, police photographs are not improper evidence of other crimes where they are relevant to the issue of identification. (People v. Denwiddie (1977), 50 Ill. App. 3d 184, 365 N.E.2d 978.) The admissibility of photographs into evidence is a matter within the sound discretion of the trial court. Friedman, 144 Ill. App. 3d at 904, 494 N.E.2d at 765.

Officer Tim Reppin testified that when he spoke to Bowers at the hospital, Bowers said that he did not know the name of one of the men who had beaten him but that he could identify him in a police photo book. Reppin further stated that Bowers then slowly paged through a police photo book. When he saw the photographs of the defendant, he quickly identified him as one of the men who had attacked him. We find that the photographs were relevant to the identification issue and that the trial court did not abuse its discretion in allowing them into evidence.

The defendant next argues that the trial court erred in imposing extended-term sentences for aggravated battery and intimidation, because he was also convicted of the more serious offense of robbery.

Under section 5 — 8—2(a) of the Unified Code of Corrections (Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 8—2(a)), a trial court is empowered to impose an extended-term sentence only on those offenses within the most serious class. (People v. Jordan (1984), 103 Ill. 2d 192, 469 N.E.2d 569.) Robbery, a Class 2 felony, is a more serious offense than intimidation and aggravated battery, which are Class 3 felonies. (Ill. Rev. Stat. 1985, ch. 38, pars. 18 — 1, 12 — 6(a)(1), 12— 4(a).) Consequently, we find that the trial court erred in imposing extended-term sentences for aggravated battery and intimidation.

The judgment of conviction of the circuit court of La Salle County is reversed. The cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

HEIPLE and STOUDER, JJ., concur.


author: JUSTICE McLAREN

text:
    MARILEE L. ALCORN et al, Plaintiffs-Appellants, v. JOSEPHINE STEPZINSKI, Defendant-Appellee.
    Third District
    No. 3—88—0717
    Opinion filed June 8, 1989.

      Robert C. Strodel and Lindsay W. Wright, both of Strodel, Kingery & Durree, Associates, of Peoria, for appellants.
    Robert D. Jackson and John A. Kendrick, both of Westervelt, Johnson, Nicoll & Keller, of Peoria, for appellee.
   JUSTICE McLAREN

delivered the opinion of the court:

Plaintiffs appeal from a grant of summary judgment entered in favor of defendant. Plaintiffs contend that there were 18 material issues of fact which precluded summary judgment. Wfe disagree and affirm.

On February 7, 1987, defendant was washing her car in her driveway, and plaintiff, Marilee Alcorn, walked by. They began discussing some silk flowers which plaintiff was to arrange for defendant in a brass planter. Defendant asked plaintiff, “Would you like to look at this container?” and plaintiff replied, “[L]et me see it.” Defendant then proceeded through the garage doorway into the kitchen. She went out onto the porch, got the planter, closed the porch door, and returned to the kitchen doorway with the planter in hand. At that point, she saw plaintiff enter through the garage doorway. Defendant did not know plaintiff had followed her into the house and was surprised to see plaintiff entering the hallway through the doorway.

The descriptive characteristics of the hallway connecting the garage and kitchen have been clearly elaborated. Photographs of the hallway have been submitted as exhibits. The entrance into the hallway from the garage contains one separate step and the floor of the hallway. The stairway to the basement is immediately adjacent to the door to the garage and along the left wall of the hallway as a person enters the premises from the garage. A door has never been installed in front of the basement stairway, and, therefore, the stairway remains open. The floor of the hallway is covered by a light-colored, no-wax Congoleum linoleum. The area of the hallway floor directly in front of the stairs has dimensions of 3 feet 2 inches (38 inches) in width and 4 feet 5 inches (53 inches) in length. This area does not constitute a separate landing for the basement stairs. The surface of the hallway floor is on a single, integrated plane proceeding to the kitchen.

Defendant testified that plaintiff entered the hallway, placed her right foot on or near the throw rug, and positioned her left foot approximately two inches over the edge of the top step of the stairway. The left foot was placed upon a metal strip on the top step of the stairway. Thereafter, plaintiff lost her balance and fell down the basement stairway immediately to her left, suffering injuries. The rug did not slip or move preceding the fall. Defendant did not give any warnings about the basement stairway to plaintiff as plaintiff entered through the garage door.

The lighting conditions in the hallway permitted an individual to become aware of the presence of the stairway. Immediately opposite the stairway, a door with a glass window had been installed which permits entrance into a glass-enclosed porch. The light from the porch shines into the basement stairway. Josephine Stepzinski related that the hallway was well lit at the time of the occurrence. Mary Osborne, a neighbor, entered the hallway and proceeded to the basement shortly after the occurrence. Mary Osborne testified that the visibility in the area was “all right” and “bright enough to see.”

Defendant filed a motion for summary judgment. The affidavit of defendant and the depositions of the plaintiffs, defendant, and Mary Osborne were annexed as exhibits. The court granted summary judgment, finding “[tjhat the undisputed facts show Defendant had no duty to warn and no duty to enclose the stairway; and they do not support negligent distraction of Plaintiff, MARILEE ALCORN, by Defendant.”

The plaintiffs raise 18 issues contending the issues are of material fact. Rather than address each issue on its merits or lack thereof, we will address the findings contained in the judgment order. We find that the 18 issues fail to raise material issues of fact. In this case, defendant is and was the only competent witness to present testimony as to how the incident occurred. Plaintiff, Marilee, experienced retrograde amnesia and could recall nothing concerning the events of the entire day of February 7, 1987. Furthermore, no expert testimony was submitted to suggest some danger or hazard beyond the ken of an ordinary person. For the reasons stated below, the trial court was correct when it found that the facts were undisputed and concluded that as a matter of law there was no negligent distraction by defendant nor duties extant.

In Econo Lease v. Noffsinger (1976), 63 Ill. 2d 390, 393, our supreme court stated:

“A motion for summary judgment will be granted if the pleadings, depositions, admissions and affidavits on file reveal that there is no genuine issue as to any material fact and that the movant is entitled to a judgment or decree as a matter of law. (Ill. Rev. Stat. 1975, ch. 110, par. 57(3); Carruthers v. B.C. Christopher & Co., 57 Ill. 2d 376.) A reviewing court must reverse an order granting summary judgment if it is determined that a material question of fact does exist.”

It is also noted, as stated in Peltz v. Chicago Transit Authority (1975), 31 Ill. App. 3d 948, 951:

“Merely alleging that a genuine issue of material fact exists without presenting any statement of fact to contradict the defendants’ version, does not thereby create such an issue. * * *
If there are no facts in dispute, inferences may be drawn from the undisputed facts to determine if the defendant is entitled to judgment as a matter of law. If no fair-minded person could draw different inferences from these facts, then there is no triable issue and the motion for summary judgment should be granted. (Southland Corp. v. Village of Hoffman Estates (1970), 130 Ill. App. 2d 311, 264 N.E.2d 451.) This does not prejudice the party against whom judgment is granted since the same undisputed facts would support entry of a judgment at the conclusion of that party’s case.”

The court in Doherty v. Kill (1986), 140 Ill. App. 3d 158, 162 set forth:

“In determining whether an issue of material fact exists, the evidence must be viewed in a light most favorable to the nonmovant. *** Even if there is some evidence from which differing inferences might be drawn, this is not significant so long as there is a reasonable basis in substantial evidence to support the inference that is drawn. Manahan v. Daily News-Tribune (1977), 50 Ill. App. 3d 9,12, 365 N.E.2d 1045.”

The Appellate Court for the Second District in Whitman v. Lopatkiewicz (1987), 152 Ill. App. 3d 332, affirmed the trial court’s grant of summary judgment when the plaintiffs were unable to present any substantive evidence of duty, breach thereof, and proximate cause. The plaintiffs pulled out from a stop sign and were injured when the respective cars collided. The defendant had the right-of-way, and the plaintiffs could not refute defendant’s factual rendition of what happened because neither of the plaintiffs saw defendant’s car until after the collision. Based upon the undisputed testimony of the defendant, summary judgment was granted. This court stated as follows:

“Plaintiffs must come forward with evidence of negligence on the part of the defendant and with evidence that defendant’s negligence was a proximate cause of the plaintiffs’ injuries. As the court stated in Koukoulomatis v. Disco Wheels, Inc. (1984), 127 Ill. App. 3d 95, 101, ‘In order to prevent the entry of a summary judgment, the nonmoving party must present a bona fide factual defense and not hide behind equivocations and general denials.’ *** * * *
*** It is fundamental, however, that there can be no recovery in tort for negligence unless the defendant breached a duty owed to the plaintiff. [Citation.] * * *
No presumption of negligence arises from the mere happening of an accident. [Citation.] Negligence is not presumed but must be proved as a fact by the party alleging it. [Citation.]
The jury must base its decision on evidence and not on guess or speculation. [Citation.] Liability cannot be predicated upon surmise or conjecture as to the cause of the injury; proximate cause can only be established when there is a reasonable certainty that defendant’s acts caused the injury.” Whitman, 152 Ill. App. 3d at 336-38.

We now will review the merits of the case to determine if, as a matter of law, defendant was entitled to judgment.

In Genaust v. Illinois Power Co. (1976), 62 Ill. 2d 456, the supreme court stated that the proper standard of care was and is contained in section 343 of the Restatement (Second) of Torts. Said section provides:

“A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he
(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and
(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and
(c) Fails to exercise reasonable care to protect them against the danger.” (Restatement (Second) of Torts §343 (1965).)

The Premises Liability Act (Act) (Ill. Rev. Stat., 1984 Supp., ch. 80, par. 300 et seq.) abolished the distinction between the duties owed to an invitee or licensee by an owner or possessor of land. The Act did not alter the duty owed to an invitee. (Icenogle v. Myers (1988), 167 Ill. App. 3d 239, 243.) We shall consider plaintiffs’ allegations within the above parameters.

Plaintiffs allege three acts of negligence. The first act was set forth as follows:

“Defendant negligently failed to warn the Plaintiff of a hazardous and unreasonably dangerous condition inside the doorway aforescribed to wit: an open stairway leading to a basement; such hazardous and dangerous condition being known to the Defendant or being one that she should have known.”

The plaintiffs neither allege nor establish factually anything extraordinary about the stairs in question. There is nothing contained in the record to suggest that the stairs were improperly designed, improperly or inadequately lighted, covered with a foreign substance, or that they were slippery. In the vernacular, they were just stairs. (Carden v. Hunt (1971), 1 Ill. App. 3d 937, 939.) As such, it is conceded that there is a risk of harm. However, the standard is an unreasonable risk of harm. (Restatement (Second) of Torts §343A (1965).) Because the stairs did not constitute an unreasonable risk of harm, it is immaterial whether defendant knew or should have known of the condition of the stairs. The trial court was correct in granting summary judgment as there was no duty under this allegation as a matter of law. Turner v. Chicago Housing Authority (1956), 11 Ill. App. 2d 160; Carden, 1 Ill. App. 3d at 939.

The second alleged act of negligence was set forth as follows:

“Defendant negligently permitted a hazardous and dangerous condition to exist; namely, an open and unguarded basement stairway immediately to the left of the doorway, so as to provide a dangerous condition for one entering said doorway ***

As stated previously, the undisputed facts establish the stairs were just stairs. There was no expert testimony to raise any issue of fact as to whether the stairs were situated in such a way as to constitute an unreasonable risk of harm. Plaintiffs fail to cite authority in support of this proposition. Our research has failed to unearth any case law which would logically, implicitly, or inferentially support their proposition. To the contrary, our research indicates that the configuration of a stairway may be dangerous only if the configuration masks or obscures the stairs in a way which prevents the invitee from becoming aware of the open and obvious configuration of the stairway. Allgauer v. Le Bastille, Inc. (1981), 101 Ill. App. 3d 978, 981; McGinty v. Nissen (1984), 127 Ill. App. 3d 618.

The undisputed facts in this case establish that the stairs were not configured in a manner which masked or obscured them. There is no evidence here tending to show that, properly used, a stairway of the configuration extant here is not as safe as others. We are unaware of any authorities that have held that the owner or occupant of a building must provide a certain kind of stairway for persons or be held guilty of negligence. (Carden, 1 Ill. App. 3d at 939.) To hold otherwise would make every landowner an absolute insurer for all injuries occurring on his stairs. (Turner, 11 Ill. App. 2d at 167; Bonamie v. Welsh (1981), 95 Ill. App. 3d 349, 350.) The trial court was correct in granting summary judgment as there was no duty under this allegation as a matter of law.

The third allegation of negligence is set forth as follows:

“Defendant negligently detracted [sic] Plaintiff’s attention to the dangerous open stairway as Plaintiff entered the premises by approaching Plaintiff to show her an object which Defendant held in her hand.”

The plaintiff has made a convoluted argument regarding distraction. The plaintiff confuses “distraction,” which may be relevant and material to the issue of contributory negligence, and “distraction,” which may create a duty to warn or to take other action on the part of the landowner to protect the invitee upon the land. In discussing known or obvious dangers, the Restatement (Second) of Torts states:

“A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.” (Restatement (Second) of Torts §343A(1) (1965).)

Comment f to the Reporter’s notes to section 343A indicates that a possessor of land may be under a duty of care to an invitee who knows of danger on the possessor’s premises if the possessor “has reason to expect that the invitee’s attention may be distracted, so that he will not discover what is obvious, or will forget what he has discovered, or fail to protect himself against it.” (Emphasis added.) (Restatement (Second) of Torts §343A, comment f at 220-21 (1965).) The trial court found and determined that the facts did not support negligent distraction of plaintiff, Marilee Alcorn, by defendant. Again, looking at the uncontroverted facts in the case, we determine that no fair-minded person could draw different inferences from these facts; there is no triable issue, and the motion for summary judgment should be granted. (Southland Corp. v. Village of Hoffman Estates (1970), 130 Ill. App. 2d 311.) Applying the test formulated in Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510, “Does all the evidence, viewed in its aspect most favorable to the opponent, so overwhelmingly favor the movant, that any other verdict would not be permitted to stand?” (Weber v. Northern Illinois Gas Co. (1973), 10 Ill. App. 3d 625, 635), we believe summary judgment was properly entered on behalf of defendant.

The facts in this case do not support a determination that defendant intentionally did acts which would have distracted plaintiff, thereby causing a misstep and the consequent injuries. The facts relate that defendant was carrying a brass planter to plaintiff for her inspection. Such an activity would not put a reasonable person on notice that the invitee would be distracted from an open and obvious danger requiring a duty to warn or protect the invitee. The facts disclose that in the short time span in which this accident occurred, it would be unreasonable to place upon defendant a duty to warn plaintiff that she was about to make a misstep or protect her from the consequences of doing so. Were we to hold otherwise, all homeowners would be liable in negligence for every injury arising out of an open or obvious danger because of their inability or disability to communicate a warning of risk of impending harm. In Shaffer v. Mays (1986), 140 Ill. App. 3d 779, 782, the court discussed comment / of section 343A and opined that if the defendant had reason to expect that the plaintiff would likely be distracted, then a duty of due care would arise. Based upon the facts in this case we find that as a matter of law it is unreasonable to conclude a reasonable person would anticipate the harm incurred by plaintiff. Therefore, the trial court was correct in determining that there was no negligent distraction of plaintiff by defendant, and summary judgment was appropriate.

Plaintiff Marilee’s cause of action in tort was correctly disposed of by way of summary judgment in favor of defendant. Therefore, the husband’s derivative cause for loss of consortium was correctly disposed of by a summary judgment in favor of defendant. Brown v. Metzger (1983), 118 Ill. App. 3d 855, affd (1984), 104 Ill. 2d 30.

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

Affirmed.

DUNN and INGLIS, JJ., concur.


text:
    GREATER PEORIA SANITARY AND SEWAGE DISPOSAL DISTRICT, Petitioner-Appellant, v. THE POLLUTION CONTROL BOARD et al, Respondents-Appellees.

    Third District
    No. 3-88-0728
    Opinion filed June 16, 1989.

      Gardner, Carton & Douglas, of Chicago, and Frederick A. Johnson, of Swain, Johnson & Card, of Peoria (Lee R. Cunningham and Richard J. Kissel, of counsel), for petitioner.
    Neil F. Hartigan, Attorney General, and Thomas Davis, of Illinois Environmental Protection Agency, both of Springfield (Robert Ruiz, Solicitor General, and Patricia E. Collins, Michelle D. Jordan, and Matthew J. Dunn, Assistant Attorneys General, of Chicago, of counsel), for respondents.
   JUSTICE SCOTT

delivered the opinion of the court:

This is a direct appeal from an opinion and order dated October 6, 1988, of the Illinois Pollution Control Board (the Board) pursuant to section 41(a) of the Illinois Environmental Protection Act (the Act) (Ill. Rev. Stat. 1987, ch. HV-k, par. 1041(a)). In its order, the Board denied appellant’s, the Greater Peoria Sanitary and Sewage Disposal District’s (the District’s), request for site-specific relief from an ammonia-nitrogen effluent standard set forth at 35 Ill. Adm. Code §304.122 (1985) of the Board’s water pollution regulations.

The District is a municipal corporation organized to collect industrial and domestic wastewaters within its service area and provide treatment of those wastewaters before discharge into the Peoria Pool of the Illinois River. The District has a service area of 58.4 square miles, serves a population of approximately 135,000 and has a total annual operating budget of $5.5 million. The District’s treatment process includes screening and grit removal, primary sedimentation, activated sludge treatment, rotating biological contactors (RBCs), tertiary clarification, tertiary ponds and chlorination.

Following promulgation of the current ammonia-nitrogen effluent limitations, the District received a State grant of $48.5 million in 1975 for upgrading its plant. As part of the project, the District installed a nitrification process consisting of 12 reinforced concrete tanks with seven RBCs per tank for a total of 84 RBCs. The cost of this particular project was $4.7 million and it became operational in 1979. The estimated useful life of these units is 20 years, or roughly a little less than 11 more years.

The nitrification process was designed to meet the ammonia-nitrogen limitation of 35 Ill. Adm. Code §304.122(a) (1985), which states:

“a) No effluent from any source which discharges to the Illinois River, the Des Plaines River downstream of its confluence with the Chicago River System or the Calumet River System, and whose untreated waste load is 50,000 or more population equivalents shall contain more that 2.5 mg/1 of ammonia nitrogen as N during the months of April through October, or 4 mg/1 at other times.”

This particular subsection is applicable to only three municipal corporations: The District, the Metropolitan Sanitary District of Greater Chicago, and the City of Joliet. There are no other specific ammonia-nitrogen effluent standards applicable to other municipal discharges into the Illinois River.

Annual costs of the District’s nitrification process include operation and maintenance (O & M) costs and replacement costs. O & M costs for the past four fiscal years have averaged $81,960, 89% of which is for electrical power. Approximately $192,000 per year has also been budgeted, although not expended, for replacement costs of the RBCs. Part of the District’s electrical power cost, however, will be alleviated in future years because of a recently completed project allowing the District to produce its own electrical power.

The District’s rulemaking petition, filed pursuant to section 28 of the Environmental Protection Act, proposed to totally exempt the District from the effluent standards for ammonia-nitrogen of 35 Ill. Adm. Code §304.122(a) (1985). The District also submitted in its petition that no economic impact study need be prepared by the Illinois Department of Energy and Natural Resources (DENR) pursuant to section 4 of “An Act in relation to natural resources ***” (Ill. Rev. Stat. 1987, ch. 96V2, par. 7404(d)). By letter, dated July 7, 1988, the DENR recorded its determination that a formal economic impact study would not be done in regard to the District’s petition because “[t]he cost of making a formal study is economically unreasonable in relation to the value of the study to the Board in determining the adverse economic impact of the regulation.”

In its petition, the District claims that exemption from the above-named effluent standard is justified at this time, because even without the ammonia-nitrogen removal process, the District’s effluents will not adversely affect downstream dissolved-oxygen levels in that it will still be required to meet other general water quality standards. As support, the District submitted several Illinois State Water Survey reports conducted partially by some of the same authors who conducted the original studies relied on by the Board when setting the current effluent standards from which the District seeks site-specific relief.

In its opinion and order, the Board found that it is technically feasible for the District to meet the current ammonia-nitrogen effluent standard; the District failed to adequately prove compliance with the standard was economically unreasonable; violations of the dissolved-oxygen standard caused by excessive oxygen demand, to which ammonia is a contributor, continue to occur downstream of the District’s discharge; the “restore, maintain and enhance” provision of section 11(b) of the Illinois Environmental Protection Act (Ill. Rev. Stat. 1987, ch. 111-k, par. 1011(b)) requires Illinois to go beyond a minimal clean-up goal and resist the temptation to pollute waters at the maximum allowable limits. The District is proposing an untried plan which would allow the general water quality standards to be consistently approached and did not present any evidence that the plan could operate “close to the line” without inadvertently exceeding the standard.

Section 13(a)(1) of the Act authorizes the Board to proscribe water quality standard, and section 13(a)(2) empowers the Board to prescribe effluent standards. (Ill. Rev. Stat. 1987, ch. HV-h, pars. 1013(a)(1), (a)(2)). Section 27(a) allows the Board to adopt substantive regulations in conformity with section 13, which “may include regulations specific to individual persons or sites.” (Ill. Rev. Stat. 1987, ch. 111V2, par. 1027(a).) Thus, it is clear the Board has the power to adopt the effluent standard from which the District requests relief.

A rejection of a site-specific standard is in effect the adoption of a previously existing regulation. (Citizens Utilities Co. v. Pollution Control Board (1985), 134 Ill. App. 3d Ill. 479 N.E.2d 1213.) The Board, therefore, was performing a quasi-legislative, as opposed to quasi-judicial, function in denying the District’s request for site-specific relief. Accordingly, our standard for review is whether the Board’s decision was arbitrary and capricious. Central Illinois Public Service Co. v. Pollution Control Board (1987), 116 Ill. 2d 397, 507 N.E.2d 819; Central Illinois Light Co. v. Pollution Control Board (1987), 159 Ill. App. 3d 389, 511 N.E.2d 269.

It is apparent that unless specific levels of justification are provided in a regulation for an adjusted standard pursuant to section 28.1 of the Act, the Board, in considering site-specific relief, must take into account certain statutory criteria outlined in section 27(a) and also provide procedural safeguards pursuant to section 28 of the Act. See Central Illinois Public Service Co., 116 Ill. 2d 397, 507 N.E.2d 819.

Section 27(a) states in part:

“In promulgating regulations under this Act, the Board shall take into account the existing physical conditions, the character of the area involved, including the character of surrounding land uses, zoning classifications, the nature of the existing air quality, or receiving body of water, as the case may be, and the technical feasibility and economic reasonableness of measuring or reducing the particular type of pollution.” Ill. Rev. Stat. 1987, ch. 1111/2, par. 1027(a).

See also Central Illinois Light Co., 159 Ill. App. 3d 389, 511 N.E.2d 269.

The District’s primary argument is that the Board is requiring treatment of ammonia-nitrogen for treatment’s sake because an input of ammonia-nitrogen effluent from the District that complies with general toxicity standards and mixing zone requirements would have an insignificant effect on downstream dissolved oxygen levels. Thus, the cost of requiring the District to maintain and replace the facilities necessary to treat ammonia-nitrogen effluent is economically unreasonable when considering the economic impact of the current standard with a less restrictive standard. As a point of clarification, the standard, from which the District seeks relief, regards the direct regulation of the emission of effluents into the water. The general toxicity and mixing zone standards are actual water quality standards and would not regulate, except in an indirect way, the effluent discharge by the District.

Upon our review of the record, we must agree with the decision of the Board. In compliance with the dictates of section 27(a) of the Act, the Board expressly determined that compliance with the effluent standard of 35 Ill. Adm. Code 314.122(a) (1985) is technically feasible. The District is indisputably complying with the standard and has done so for the past 10 years. Regarding the District’s contention that there would be no significant decrease in water quality if the site-specific relief were granted, the Board noted there are currently ongoing violations of the dissolved oxygen standard downstream caused by excessive oxygen demand and that ammonia is a contributor. Therefore, allowing a relaxed standard of ammonia input into the Illinois River, in light of current ongoing violations of water quality, is not in accord with the stated purpose of restoring, maintaining and enhancing the purity of this State’s waters under section 111(b) of the Act. (Ill. Rev. Stat. 1987, ch. HV-k, par. 1011(b).) If the ultimate goal of the Environmental Protection Act is to clean up the air and the waters of this State, then positive action to do so must be taken that continually creates tougher standards for compliance. Moreover, the District’s contention that the cost burden of the more restrictive standard warrants exception is unpersuasive. There has been no mention that the District is currently unable to cover the cost of compliance, but in fact has been able to save money each year to replace equipment in the future. We commend the District’s foresight but decline to find compliance economically unreasonable at this time.

It has been held that determinations regarding technical feasibility and economic reasonableness alone are sufficient to support the decision of the Board. (Central Illinois Light Co., 159 Ill. App. 3d 389, 511 N.E.2d 269.) In this case, however, the Board took a closer look and determined that ongoing violations of water quality downstream were a critical situation that supported denial of the District’s request. This court is not to determine whether the Board’s action is wise or even the most reasonable since the Board is made up of technically qualified individuals, whose opinions require deference unless arbitrary or capricious. Central Illinois Public Service Co., 116 Ill. 2d 397, 507 N.E.2d 819.

For all of the foregoing reasons, the decision of the Pollution Control Board is affirmed.

Affirmed.

WOMBACHER, P.J., and STOUDER, J., concur.


author: JUSTICE BARRY

text:
    JUDY SETINC, Special Adm’r of the Estate of Joseph Masny, Deceased, et al., Plaintiffs-Appellants, v. JOSEPH C. MASNY, Defendant-Appellee.
    Third District
    No. 3-88-0421
    Opinion filed June 16, 1989.

      Ketchum & Associates, Ltd., of Chicago (Paul E. Peldyak, of counsel), for appellants.
    James T. Ferrini, Thomas H. Ryerson, and Jeanette M. Bourey, all of Clausen, Miller, Gorman, Caffrey & Witous, P.C., of Chicago (Edward M. Kay, of counsel), for appellee.
   JUSTICE BARRY

delivered the opinion of the court:

Eleven-year-old Joseph Masny died as a result of severe burns suffered when a can of model airplane fuel exploded in the family garage. Helen Masny, his mother, and Judy Setinc, the special administrator of his estate, filed suit against decedent’s father, Joseph C. Masny, to recover damages. Plaintiffs appeal from those orders of the trial court dismissing some counts of the complaint and entering summary judgment in favor of defendant as to the other counts.

Briefly, defendant and his son flew model airplanes as a hobby. The airplane fuel, which is a mixture of gasoline and nitroglycerine, was stored in a one-gallon can attached to a pack of equipment used to fly the model planes. The pack was kept on a workbench in the Masny family garage.

On the morning of June 29, 1984, defendant locked the garage when he left for work, but later plaintiff Helen Masny left the garage unlocked when she went to the store for groceries. While she was gone, decedent and a friend went into the garage to play. Decedent lit a candle, set the candle on a board, and, using the hand pump on the fuel can, began to pump some model airplane fuel onto the burning candle. The fuel can exploded, and decedent was severely burned. He died in December of 1984 as a result of the burns.

The complaint in this cause contained the following counts:

I. Under the Survival Act (Ill. Rev. Stat. 1983, ch. llO1^, par. 27 — 6), to recover for decedent’s pain and suffering caused by defendant’s negligence.
II. Under the Wrongful Death Act (Ill. Rev. Stat. 1983, ch. 70, par. 1 et seq.), to recover for decedent’s wrongful death caused by defendant’s negligence.
III. Under the family expense statute (Ill. Rev. Stat. 1983, ch. 40, par. 1015), to recover medical expenses incurred as a result of defendant’s negligence.
IV. Under the Survival Act, to recover for decedent’s pain and suffering caused by defendant’s willful and wanton misconduct.
V. Under the Wrongful Death Act, to recover for decedent’s wrongful death caused by defendant’s willful and wanton misconduct.
VI. Under the Survival Act, to recover for decedent’s pain and suffering caused by a nuisance maintained by defendant.
VII. Under the Wrongful Death Act, to recover for decedent’s wrongful death caused by a nuisance maintained by defendant.

The trial court granted motions for summary judgment in favor of defendant as to counts I, II, III, IV, and V. Counts VI and VII were disposed of by orders of dismissal.

Plaintiffs’ first contention is that the trial court erred in ruling that the common law doctrine of parental tort immunity is a bar to the causes of action grounded in negligence (counts I and II) brought by the administrator of decedent’s estate against the father. Plaintiffs challenge the public policy reasons advanced in support of the doctrine.

One of the cases plaintiffs rely upon is Schenk v. Schenk (1968), 100 Ill. App. 2d 199, 241 N.E.2d 12, where a father’s cause of action against his daughter arising out of an accident where she struck her pedestrian father as she drove the car was allowed on the ground that the daughter’s allegedly tortious conduct had no direct connection with the family relationship. While the court there recognized an exception to the immunity doctrine, the court also spoke in defense of the doctrine as follows:

“[Tjhere are no impelling reasons for eroding or emasculating the family immunity rule for conduct of either parent or child arising out of the family relationship and directly connected with the family purposes and objectives in those cases where it may be said that the carelessness, inadvertence or negligence is but the product of the hazards incident to inter-family living and common to every family. In such instances the immunity doctrine is neither unjust, unreasonable nor without a sound and solid foundation. To hold otherwise is to inject into the courts a judicial supervision over everyday family conduct of parent and child, and invites endless litigation over what is or is not ordinary negligence in the operation of a household. The assumption of the role of paterfamilias by either the courts or the State, except under most compelling circumstances, is foreign to our way of life.” 100 Ill. App. 2d at 206, 241 N.E.2d at 15.

Parental tort immunity remains the law in Illinois. Most recently, an appellate court ruling which would have abrogated the parental tort immunity doctrine was nullified by the supreme court in Stallman v. Youngquist (1988), 125 Ill. 2d 267, 531 N.E.2d 355. There the supreme court vacated that portion of the appellate court decision which recognized a cause of action for negligence brought on behalf of a child against her mother, who allegedly caused an injury to her unborn child in an automobile accident.

Plaintiffs further argue that collusion is not possible here because there was an independent eyewitness, a neighbor, who saw the boys playing in the garage and saw the explosion. Plaintiffs reason that there is little likelihood of perjury or fraud or other collusive conduct under the circumstances of this case. This issue was addressed in Chamness v. Fairtrace (1987), 158 Ill. App. 3d 325, 327, 511 N.E.2d 839, where the court said:

“The doctrine has been justified on the basis that allowing a child to sue a parent for a personal tort would (1) disrupt family harmony, (2) encourage collusion, perjury and fraud between family members, and (3) impair parental authority and discipline.”

The facts in Chamness v. Fairtrace are similar to those in the case before us. The father as administrator of the estate of his deceased daughter brought a wrongful death action against the mother alleging that the mother’s negligence caused an automobile collision which resulted in the death of the unborn child. The court recognized that any recovery for pecuniary loss would inure to the benefit of the defendant through the husband-wife relationship. The court noted the evident possibility of collusion. Here we cannot ignore the fact that any award of damages to the plaintiff mother will inure to the benefit of the defendant father.

Plaintiffs additionally argue that this case comes within an exception to the parental tort immunity doctrine in that the storage of highly volatile model airplane fuel is not a “family purpose” as required to invoke the doctrine. (See Schenk v. Schenk (1968), 100 Ill. App. 2d 199, 241 N.E.2d 12.) We do not agree. The storing of fuel and other equipment necessary to fly the model airplanes was a necessary adjunct to the activity of flying those airplanes. Since flying models was plainly a family recreational activity, the storage and maintenance of the equipment and supplies necessary to do so were also a part of the family activity.

We conclude that the trial court correctly ruled that parental tort immunity is a bar to the causes of action asserted in counts I and II of the complaint.

Plaintiffs also contend that it was error to grant summary judgment as to counts IV and V because the pleadings raise a substantial issue of material fact as to whether defendant was guilty of willful and wanton misconduct. The parental tort immunity doctrine is not a bar to an action for willful and wanton misconduct. (E.g., Nudd v. Matsoukas (1956), 7 Ill. 2d 608, 131 N.E.2d 525; Chamness v. Fairtrace (1987), 158 Ill. App. 3d 325, 511 N.E.2d 839.) A widely accepted definition of wilful and wanton misconduct is set forth in Klatt v. Commonwealth Edison Co. (1965), 33 Ill. 2d 481, 488, 211 N.E.2d 720, 724, as “intentional or the act must have been committed under circumstances exhibiting a reckless disregard for the safety of others, such as a failure, after knowledge of impending danger, to exercise ordinary care to prevent it or a failure to discover the danger through recklessness, or carelessness when it could have been discovered by the exercise of ordinary care.”

Plaintiffs allege, inter alia, that defendant “[rjecklessly and with conscious disregard for others kept gasoline and other volatile combustibles and/or compounds in [his] garage in such a manner as to be accessible to decedent and other children when he knew or should have known children frequented said garage.” There is no dispute that defendant instructed decedent of the flammable nature of the airplane fuel, that he warned him of the danger, and that he locked the garage door when he left on the day of the accident. The trial court apparently concluded that defendant’s conduct in locking the garage door was “ordinary care,” under the circumstances, so as to preclude a claim of willful and wanton misconduct, and we agree. Neither the allegation quoted above nor the other allegations of willful and wanton misconduct, when considered together with the pleadings and the undisputed deposition testimony, raise a material issue of fact sufficient to justify setting aside the summary judgment entered on counts IV and V.

Another error asserted by plaintiffs was the entry of summary judgment in favor of defendant on count III. In that count the mother sought to recover decedent’s medical expenses for which she became liable under section 15 of “An Act *** in relation to husband and wife” (Ill. Rev. Stat. 1981, ch. 40, par. 1015). The statute provides that family expenses are “chargeable upon the property of both husband and wife, or of either of them, in favor of creditors therefor, and in relation thereto they may be sued jointly or separately.” Ill. Rev. Stat. 1981, ch. 40, par. 1015.

This statute has been held to authorize the wife to sue a third-party tortfeasor to recover medical expenses incurred by a member of the family. (Houghton v. Novak (1973), 9 Ill. App. 3d 699, 292 N.E.2d 905.) However, it makes no provision for the liability of one spouse to another, and as the court notes in Houghton v. Novak, at common law only the husband was liable for family expenses. Plaintiffs do not allege that the mother has actually paid the medical expenses but only that she is liable for them under this statute. Since there is neither a common law nor a statutory basis for this cause of action, the trial court did not err in entering summary judgment in favor of defendant.

Both parties argue at some length as to whether legislation abolishing interspousal tort immunity, effective January 1, 1988, should be applied retroactively to this case, thereby requiring us to reverse the judgment of the trial court entered on November 20, 1987. (Ill. Rev. Stat. 1987, ch. 40, par. 1001, as amended by Pub. Act 85 — 625, §1, eff. Jan. 1, 1988.) However, we do not decide whether the doctrine of interspousal immunity is a bar to plaintiffs’ action in this instance since we have held that count III failed to state a cause of action.

Finally, plaintiffs claim that the trial court should not have dismissed counts VI and VII since, it is argued, they allege a valid cause of action for public nuisance. The theory of liability set forth in those two counts is that defendant stored volatile combustible fuel in his garage in a manner that created a condition dangerous to the general public. Plaintiffs cite section 1 of “An Act to regulate the storage, transportation, sale and use of gasoline and volatile oils” (Ill. Rev. Stat. 1987, ch. 1271/2, par. 153), which states that it is unlawful for any person to store gasoline and other volatile combustibles in such manner or under such circumstances as will jeopardize life or property. Section 7 of that act provides various criminal and civil penalties for violations of the statutory provisions, nearly all of which pertain to underground storage tanks.

Plaintiffs argue that the storage of model airplane fuel in a can on the workbench of defendant’s garage was, under the statute, an unlawful use of defendant’s property and, consequently, was a public nuisance rendering defendant liable for damages arising from such use. Furthermore, plaintiffs cite no local ordinance or administrative rule violated by defendant. Since the undisputed facts indicated that defendant stored this fuel in locked garage, it would be impossible to say that it was stored in a manner that would “jeopardize life or property” so as to violate the statute. We agree with the trial court that the complaint failed to state a cause of action for nuisance.

We affirm the judgment in favor of defendant entered in the circuit court of Will County.

Affirmed.

SCOTT and STOUDER, JJ., concur.


text:
      In re MARRIAGE OF MADELINE TEAUSEAU, Petitioner-Appellant, and ROBERT TEAUSEAU, Respondent-Appellee.
    Third District
    No. 3-88-0317
    Opinion filed June 8, 1989.

      Cynthia M. Raccuglia, of Anthony C. Raccuglia & Associates, of Peru, for appellant.
    John Olivero and William LaSorella, both of Peru, for appellee.
   PRESIDING JUSTICE WOMBACHER

delivered the opinion of the court:

The trial court entered a judgment for the dissolution of the parties’ marriage, which included a four-year, $100-per-week maintenance award to the petitioner, Madeline Teauseau. The respondent, Robert Teauseau, was also ordered to pay 55% of the petitioner’s attorney fees and costs incurred as a result of the action. In the property distribution, Madeline received 55% of the parties’ assets. Robert received 45% and assumed all of .the marital debts. The court awarded custody of the parties’ daughter to Madeline and ordered Robert to pay $67 per week in child support. The petitioner appeals the four-year limitation on the maintenance award and the percentage of attorney fees granted.

The record reveals that the parties were married for 27 years and had two children, Mark, age 25, and Tammy, age 16. At the time of the dissolution proceedings, Madeline was 46 years old. Her education included graduation from high school and a beauty school. She had worked as a beautician up until the birth of her son, but had not worked since that time.

The record further shows that after Tammy was born, Madeline was hospitalized for physical and mental problems. She had suffered from depression since the age of 15, when her father committed suicide. While hospitalized, she began seeing Dr. Sheen, who prescribed antidepressants and other medication. Between 1971 and 1982, she continued in therapy with Dr. Sheen, but in 1982 began seeing Dr. Remolina, with whom she met about once a month.

Madeline was hospitalized again in 1984 after she ran her car into a tree following an argument with her husband. At that time, she was diagnosed as suffering from a major depressive disorder, a state of depression associated with thoughts of suicide and self-destructive tendencies. Madeline’s depression became more severe with the breakdown of her marriage. Dr. Remolina stated in his evidence deposition that he had last seen Madeline in November of 1986, and that although she had made some improvement, she was still unable to cope with situations in life. Madeline testified at trial that she had stopped seeing Dr. Remolina due to financial difficulties following the divorce.

Robert had been self-employed as the owner and operator of Bob’s Body Shop for over 14 years. At the time of the dissolution proceedings, he was 47 years old and in good health. Robert testified that he took $300 per week from the business as his salary. He further testified that he had been living with a friend and paid her $150 per month in rent. During the marriage, Robert paid all of the bills and gave Madeline $200 per week for groceries and other items.

Madeline first argues on appeal that the trial court erred in ordering that maintenance would automatically terminate after four years. She does not dispute the amount of the award.

In determining the duration and amount of a maintenance award, section 504(b) of the Illinois Marriage and Dissolution of Marriage Act (the Act) (Ill. Rev. Stat. 1987, ch. 40, par. 504(b)) provides that the following factors should be considered: the financial resources of the party seeking maintenance; the time necessary for that party to acquire sufficient education or training to enable appropriate employment; the standard of living established during the marriage; the duration of the marriage; the age and the physical and emotional conditions of both parties; the ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance; and the tax consequences of the property division upon the respective economic circumstances of the parties.

One objective of the Act is to encourage a formerly dependent spouse to become financially independent in the future, if possible. (In re Marriage of Wilder (1983), 122 Ill. App. 3d 338, 461 N.E.2d 447.) This goal, however, must be balanced against a realistic appraisal of the likelihood that the spouse will be able to support herself in some reasonable approximation of the standard of living established during the marriage. (In re Marriage of Carney (1984), 122 Ill. App. 3d 705, 462 N.E.2d 596.) Time-limited maintenance which is reviewable at a certain date in the future has been widely accepted by Illinois courts as a logical, practical, and fair way to handle maintenance awards. (See In re Marriage of Albiani (1987), 159 Ill. App. 3d 519, 512 N.E.2d 30; In re Marriage of Asch (1981), 100 Ill. App. 3d 293, 426 N.E.2d 1066.) A maintenance award rests within the sound discretion of the trial court and will not be disturbed on review unless it constitutes an abuse of discretion or is against the manifest weight of the evidence. In re Marriage of Wilder, 122 Ill. App. 3d at 351, 461 N.E.2d at 456.

In the instant case, we find that the trial court abused its discretion in ordering that the maintenance award would automatically terminate after four years. The evidence showed that Madeline suffered from chronic depression and required psychiatric care. At the time of these proceedings, she was 46 years old and had not been employed for over 24 years. Regarding her ability to work in the future, Dr. Remolina stated in his deposition that, in his opinion, Madeline could not handle full-time employment because she suffered from feelings of insecurity and had difficulty withstanding pressure. Dr. Remolina speculated that Madeline could perform some menial tasks, such as washing dishes. Madeline likewise testified that she did not feel she could handle a full-time job because some days she was so depressed she could not get out of bed.

With regard to the standard of living during the marriage, Robert paid all of the bills and gave Madeline money each week for groceries and whatever else she needed. Madeline testified that she did not have any financial problems while the two of them were living together as husband and wife. They had purchased a home for $110,000 and during the marriage she was able to spend $8,000 to $10,000 per year in 1983 and 1984. She stated that her current monthly expenses were $2,000, including her medication and doctor visits, and that the money she received from the property settlement was her only source of income.

Under these circumstances, it was impermissibly speculative for the trial court to decide that in four years Madeline would be self-sufficient. In light of her emotional problems, her long absence from the labor market, her educational background, and her age, we conclude that the maintenance award should be reviewable at the end of four years rather than automatically terminating at that time. Accordingly, we find that the most appropriate solution is for the trial court to retain jurisdiction so that it can periodically reevaluate the relevant circumstances of the parties and make such modifications in the maintenance award as may be appropriate in the future.

Madeline next argues that the trial court erred in ordering Robert to pay only 55% of her attorney fees and costs. She contends that he should be required to pay the full amount. We note that the trial court initially ordered Robert to pay all of Madeline’s fees and costs, but upon reconsideration held that Robert was to pay only 55%.

Attorney fees are the primary obligation of the party for whom services are rendered, and a party seeking an award must show financial inability to pay the fees and the financial ability of the other spouse to do so. (In re Marriage of Bauer (1985), 138 Ill. App. 3d 379, 485 N.E.2d 1318.) The propriety and amount of an award of attorney fees are left to the sound discretion of the trial court, and the award will not be disturbed on appeal absent an abuse of discretion. In re Marriage of Dwan (1982), 108 Ill. App. 3d 808, 439 N.E.2d 1005.

The record shows that the total amount of the attorney fees at issue is $5,077.05. After Robert’s payment of 55% of that figure, Madeline would be required to pay $2,284.67. Madeline failed to show that she was unable to pay these fees. Her cash assets from the divorce totaled $29,180.13. Payment of the remaining fees and costs would not even come close to exhausting her resources. We therefore cannot say that the trial court abused its discretion in awarding her only 55% of her attorney fees and costs.

Based on our findings, we reverse that portion of the trial court’s decision ordering that the maintenance award terminate automatically after four years and remand this cause with instructions that the award be periodically reviewed after four years. The trial court’s determination that Robert is to pay 55% of Madeline’s attorney fees and costs is affirmed, as is the remainder of the court’s judgment.

Reversed in part and remanded; affirmed in part.

STOUDER and SCOTT, JJ., concur.