author: JUSTICE McLAREN

text:
    DOMENIC POETA et al., Plaintiffs-Appellees and Cross-Appellants, v. SHERIDAN POINT SHOPPING PLAZA PARTNERSHIP et al., Defendants-Appellants and Cross-Appellees.
    Second District
    No. 2—89—0260
    Opinion filed March 28, 1990.

      William C. Marlatt, Jr., of Lake Forest, and Julius Abler, of Libertyville, for appellants.
    Richard N. Kessler and Joseph E. Kolar, both of Becker & Baizer, of Highland Park, for appellees.
   JUSTICE McLAREN

delivered the opinion of the court:

Defendants, Sheridan Point Shopping Plaza Partnership, Ralph Schwartz and Alex Largo, appeal from the trial court’s award of $30,000 in punitive damages. They claim that the award is inappropriate as it is based upon a claim for breach of contract and it is excessive. Plaintiffs, Domenic Poeta, David Snider and Portage, Inc., cross-appeal from the trial court’s award of $100 in actual damages. They claim this award is insufficient as a matter of law. We affirm.

Defendants and plaintiffs entered into a lease arrangement whereby the plaintiffs agreed to lease commercial property in a shopping plaza for five years in order to operate a restaurant. The defendants agreed to provide 12 parking spaces immediately adjacent to the property and approximately 50 more spaces just south of the plaza.

At the time the restaurant opened in August 1986, the defendants had provided the 12 spaces adjacent to the restaurant. However, the defendants began developing the property south of the plaza, and on or about October 1, 1987, the 12 spaces were eliminated. Plaintiffs filed a four-count complaint seeking, inter alia, an injunction to prevent the defendants from building further on the south property. The request for injunction was denied. The most parking spaces ever provided by the defendant was 42. The restaurant was closed in January 1988, allegedly due to loss of business occasioned by the lack of parking.

Plaintiffs filed a four-count amended complaint: count I sought recision of the lease; count II sought damages at law for fraud; count III sought punitive damages; and count IV sought damages for breach of contract. Plaintiffs filed a motion for partial summary judgment seeking a judgment as to liability only on counts I and IV of its amended complaint. Plaintiff chose to pursue its motion only as to count IV.

On July 13, 1988, the court found that there was no issue of material fact and granted summary judgment to plaintiffs as to liability only on count IV of its amended complaint. The order also provided that the matter would be set for prove up on the issue of damages only as to count IV on a date to be agreed to by the parties.

On August 10, plaintiffs filed a second amended complaint adding count V for negligent misrepresentation. Defendants filed a motion to strike counts I, II, III and V, and the court granted the motion as to to count I only. The court also continued the matter for “Trial.” On two subsequent occasions the court entered orders continuing the matter for “Trial.”

The trial in this matter lasted several days. On December 6, 1988, the court ruled, as it had earlier in the summary judgment ruling, that there was a breach of contract. The court also stated that it found there had been fraudulent conduct on the part of the defendants. However, the court found that actual damages caused by defendant’s conduct had not been established. The court additionally stated that since there were no actual damages there could be no award of punitive damages. The court concluded its ruling by stating, “This court entered the judgment with severe reservations but feels it is required pursuant to the law it understands.”

On December 27, on its own motion, the court called the parties before it and altered its ruling. The court stated that it had reviewed the evidence and the applicable law and concluded that its earlier ruling was erroneous. The court then stated that it found actual damages had been established. However, the court expressed the extreme difficulty involved in quantifying these damages based on the evidence presented. The court entered an award of actual damages in the sum of $100, stating that it was confident that this amount was less than the damages actually incurred. The court also awarded punitive damages in the sum of $30,000.

Defendants filed a motion to vacate and a motion to reconsider, both of which the court denied. Defendants then filed a notice of appeal alleging that the court erred in awarding punitive damages. Plaintiffs filed a cross-appeal claiming that the actual damage award was insufficient as a matter of law. Defendants then filed a motion to strike plaintiff’s cross-appeal. This court ordered the motion to be decided with the merits of the case.

Initially, we note the inadequacy of defendants’ brief. Defendants’ argument consists of 12 sentences which attempt to address three issues. Defendants present general principles of law that do not directly apply to this case. We admonish defendants in the future to read and fully comply with Supreme Court Rule 341(e)(7). (113 Ill. 2d R. 341(e)(7).) We will, however, resolve the apparent issues in the case.

Defendants first contend that the July 13, 1988, order granting partial summary judgment limited the proceedings in this case to a prove up of damages on count IV only. Therefore, any damages awarded were a result of defendants’ liability for breach of contract as set forth in count IV. Since punitive damages are ordinarily not available in a breach of contract action, defendants contend that the court erred in awarding punitive damages of $30,000.

We find that the court’s reasoning set forth in its denial of defendants’ motion to vacate is clear and an accurate reflection of what transpired in this case. The trial in this matter was not only a prove up of damages on count IV but a full trial of all the issues raised by the complaint, except the liability issue of count IV, which was resolved by the motion for partial summary judgment. The orders entered by the court subsequent to July 13, 1988, state that the matter was continued for “Trial,” not prove up. Additionally, both parties introduced evidence at trial that went far beyond the issue of damages. Plaintiffs called several witnesses who testified extensively as to the circumstances surrounding the negotiation, execution and the terms of the lease. This evidence is not relevant to the issue of damages. This evidence is an attempt to establish fraud and breach of contract. Defendants, however, did not at any time object to the introduction of this testimony and, in fact, cross-examined the witness thoroughly on these issues. Also, defendants called their own witness and elicited evidence upon issues other than damages. We also note that on December 6, in announcing its original ruling, the court’s comments expressly referred to counts II, III and V of the complaint. At no time during this discussion did the defendants claim that the trial was limited to the issue of damages on count IV.

Additionally, when the court, sua sponte, reconsidered its ruling on December 27 and assessed actual and punitive damages, the defendants did not raise the issue of the trial being limited to the issue of damages on count IV. It is clear that all parties to this proceeding, as well as the court, were operating under the impression that the trial was not limited to the issue of damages. We believe that the court was correct in finding that the trial was not limited to the issue of damages on count IV.

We now turn to the issue of whether the court was correct in awarding punitive damages. Defendants claim that the court awarded damages for breach of contract. Defendants then cite the general rule that punitive damages are not recoverable for breach of contract. (Morrow v. L.A. Goldschmidt Associates, Inc. (1986), 112 Ill. 2d 87, 91.) Therefore, defendants conclude that the court erred in awarding punitive damages.

While defendants correctly cite a general rule of law, we find that their argument has no merit. While the court did discuss breach of contract, and it is not entirely clear pursuant to which specific counts the court awarded damages, we find that defendants have not sustained their burden of persuading this court that the trial court erred in awarding punitive damages.

In its rulings of December 6, the court stated:

“With regard to the allegations of fraudulent conduct, the Court would find for the purpose of this case and from the record before it that the defendant, Schwartz, made false statement of material fact to the plaintiffs; he knowingly made that statement; that he intended that that statement be made to induce others, plaintiffs, to act; and that the actions by the plaintiffs were in reasonable reliance upon those statements. It also concludes that the statements made were part of an overall plan to secure action on the plaintiffs[,] here[,] their entry to the lease.
With regard to the fraud count, the Court would find as I believe it already has that plaintiffs cannot prevail only because the Court has concluded that it has not — the plaintiffs have not shown actual damages proximately caused by the defendant’s conduct.”

On December 27, the court reconsidered its December 6 ruling and found that plaintiffs had established actual damages. The court stated:

“In the Court’s earlier ruling, I had concluded that because there was no showing of actual damages, there couldn’t be an award of punitive damages. But the Court has reconsidered its own decision, and I’ll find that there was showing sufficient award of actual damages ***. However, that was the only reason why I didn’t award punitive damages previously; that is, the non-existence of actual damages.”

We are not persuaded that the court awarded punitive damages on the breach of contract claim and not on the fraud claim.

Defendants next contend that even if the court was correct in awarding punitive damages, the $30,000 award was excessive absent evidence of defendants’ financial status. We disagree.

Defendants cite Wilson v. Colston (1983), 120 Ill. App. 3d 150, in support of their argument that evidence of financial status is required when awarding punitive damages. However, Wilson stands for just the opposite proposition. The court in Wilson stated:

“Courts in other jurisdictions that have considered the question of whether proof of a defendant’s wealth is mandatory to the recovery of punitive damages have, without exception, held to the contrary. [Citations.]
We think these courts have adopted a proper rule ***. *** The defendant has not proposed and we have not discerned any problem with regard to due process involved in permitting punitive damages to be assessed without evidence of a defendant’s net worth. In view of our holding that a plaintiff need not introduce evidence of a defendant’s financial worth to obtain an award of punitive damages, the trial court did not err in submitting the issue of punitive damages to the jury in the absence of such evidence.” (Emphasis added.) Wilson, 120 Ill. App. 3d at 152-53.

A reviewing court will not disturb an award of punitive damages that is allegedly excessive unless it appears that the award is a result of passion, partiality, or corruption. (Deal v. Byford (1989), 127 Ill. 2d 192, 204.) Defendants have not attempted to establish that the $30,000 punitive damage award was the result of passion, partiality, or corruption. The trial court’s award of $30,000 in punitive damages was not excessive.

We now turn to plaintiffs’ cross-appeal. Plaintiffs allege that the court erred in awarding only $100 in actual damages. Plaintiffs allege this sum is insufficient as a matter of law because it does not place them in the same financial position that they would have been in had they not been the victims of defendants’ fraud.

Defendants have filed a motion to strike the plaintiffs’ cross-appeal alleging that the plaintiffs cannot challenge the court order awarding $100 as actual damages because it was plaintiffs who requested this order to be entered.

The trial court orally expressed its findings on December 27, 1988. The court asked the plaintiffs to draft an order reflecting the court’s findings. Plaintiff complied with this request and presented the order for the court’s signature by way of a motion for entry of judgment. Plaintiffs did not “request” a judgment for $100. Defendants’ argument is without merit.

Defendants also ask that the cross-appeal be stricken as the plaintiffs “did not raise the issue of the sufficiency of the $100 award of damages before the trial court.” The issue of damages was clearly before the trial court. In fact, if defendants had been correct in their previous argument, that is the only issue that would have been before the court. It is not necessary for the plaintiffs to raise the issue of sufficiency of a damage award in a post-trial proceeding in order to present this issue for appellate review. (See 107 Ill. 2d Rules 366(b)(3)(i), (b)(3)(ii).) Defendants’ motion to strike plaintiffs’ cross-appeal is denied.

We now turn to plaintiffs’ argument. Plaintiffs are correct in that a “benefit-of-the-bargain” analysis for damages is appropriate in an action for fraud. (In re Application of Busse (1984), 124 Ill. App. 3d 433, 439.) It is elementary, however, that damages must be proved to be recovered. The finding of the trial court, sitting without a jury, as to damages will not be disturbed upon review unless it is manifestly erroneous. Lynch v. Precision Machine Shop, Ltd. (1982), 93 Ill. 2d 266 278; Finance America Commercial Corp. v. Econo Coach, Inc. (1983), 118 Ill. App. 3d 385, 390.

We agree with the trial court that actual damages are extremely difficult if not impossible to quantify in this case. The evidence presented did not establish the amount of money plaintiffs would have received had they received the “benefit-of-the-bargain.” All the evidence presented by plaintiffs was in terms of gross earnings. Plaintiffs ask this court to find that average gross earnings are an appropriate measure of damages as a matter of law. Gross earnings are not the measure of plaintiffs’ loss in this case. Plaintiffs would be receiving far in excess of the “benefit-of-the-bargain” if gross earnings were used to compute damages. If the parking was provided as promised, and the restaurant operated as expected, plaintiffs would have net earnings to show for their efforts, not gross earnings. There was little evidence presented as to the expenses incurred in operating the restaurant. We find that the court was not manifestly erroneous in awarding $100 as actual damages in this case.

Plaintiffs also ask this court to find that they are entitled to $3,200 in consequential damages. This sum allegedly represents the legal fees incurred in selling the restaurant to mitigate damages. This claim was not included in plaintiffs’ complaint and, from our review of the record provided, was never brought to the court’s attention during trial, or during defendants’ motions to reconsider or vacate. This is a first-time request for consequential damages. A claim cannot be raised for the first time on appeal. Keating v. Iozzo (1987), 155 Ill. App. 3d 774, 776.

The trial court’s award of actual and punitive damages is affirmed.

Affirmed.

UNVERZAGT, P.J., andREINHARD, J., concur.


source: Caselaw Access Project

author: JUSTICE DUNN

license: Public Domain

text:
    THE VILLAGE OF LINCOLNSHIRE, Plaintiff-Appellee, v. JAMES DiSPIRITO, JR., Defendant-Appellant.
    Second District
    No. 2—89—0524
    Opinion filed March 27, 1990.

      Stephen M. Komie, of Komie & Associates, of Chicago, for appellant.
    Douglas E. Zeit, William G. Rosing, and Suzanne A. Lindsay, all of Rosing, Applehans & Smith, Ltd., of Waukegan, for appellee.
   JUSTICE DUNN

delivered the opinion of the court:

The defendant, James DiSpirito, Jr., was charged with, inter alia, the offenses of driving under the influence of alcohol (DUI) and driving with a blood-alcohol concentration of greater than .10 in violation of sections 10—8—2A1 and 10—8—2A2 of the municipal code of the Village of Lincolnshire (the Village) (Lincolnshire, Ill., Municipal Code ch. 10, pars. 10—8—2(A)(1), (A)(2)). The arrest occurred after the defendant’s automobile was stopped by a Village police officer. The trial court denied the defendant’s motion to suppress evidence and quash arrest, and the defendant was subsequently convicted of both offenses after a bench trial. The defendant now appeals, claiming that his motion to suppress evidence and quash arrest should have been granted because the stop of his automobile was conducted without an articulable suspicion that the defendant had engaged in criminal activity. We affirm.

The following facts were adduced at the hearing on the defendant’s motion to suppress evidence and quash arrest. The stop of the defendant’s automobile took place on January 1, 1988, at approximately 7:15 p.m. Officer Gregory Duffey was northbound on Route 21, a four-lane roadway, when he first saw the defendant, who was driving south on Route 21. At this location, Route 21 is intersected from the west by Old Half Day Road at a tee intersection. Old Half Day Road proceeds west from the intersection with Route 21 and curves in a southwesterly direction. The defendant turned his vehicle right from Route 21 and headed west on Old Half Day Road.

Officer Duffey testified that, in making a right turn to head west on Old Half Day Road, the defendant drove his car completely into the eastbound lane of Old Half Day Road for about 100 feet until he drifted back into the westbound lane. Officer Duffey at this time observed that the rear window of the defendant’s car was completely covered with snow and ice. According to Officer Duffey, although there was snow covering the grassy areas adjacent to the roadway, the road itself was only wet, and there was no snow on the road. Officer Duffey stated that “because there was no other traffic,” he then turned his vehicle left onto Old Half Day Road and followed the defendant’s automobile.

The officer continued to follow the defendant’s vehicle for about one-third of a mile until both cars stopped at a red light at the intersection of Old Half Day Road and Route 22. At the intersection, Officer Duffey radioed the police station and informed the dispatcher that he would stop the defendant’s car as soon as it passed through the intersection. The dispatcher informed Duffey that there were no outstanding warrants for the defendant or his automobile. After the defendant turned right onto Route 22 Officer Duffey activated his mars lights, and the defendant pulled his car over to the side of the road. The only reason he stopped the defendant’s vehicle, Duffey testified, was because of the defendant’s wide right turn onto Old Half Day Road and because of the snow and ice covering the rear window.

Officer Duffey approached the defendant’s vehicle and told the defendant the reasons why his car had been stopped. The defendant then exited the car so that he might remove the snow and ice from the rear window. Officer Duffey testified that the defendant stumbled when he exited the car, and the officer also smelled the odor of alcohol emanating from the defendant. The defendant was then asked to perform certain field sobriety tests, which he failed, and he was then arrested for DUI. Subsequently, citations were also issued to the defendant for an improper right turn at an intersection and driving with an obstructed rear window (Lincolnshire, Ill., Municipal Code ch. 10, par. 10—7B—5(B)) and also for the failure to wear a seat belt (Ill. Rev. Stat. 1987, ch. 95½, par. 12—603). After consenting to and failing a breathalyzer test, the defendant was also charged with driving with a blood-alcohol concentration greater than .10.

The defendant testified that his rear window was partially, but not totally, covered with snow and ice. The defendant admitted that he made a wide right turn onto Old Half Day Road, but he stated that the left front wheel of his car crossed only about one foot over the center line for about five seconds. The reason he drove over the center line, the defendant testified, was that he saw a glare on the road which he perceived to be a patch of ice or snow.

The trial court denied the defendant’s motion to suppress evidence and quash arrest. In doing so, the court did not make an explicit finding as to which witness’ testimony it believed regarding the dimensions of the defendant’s wide right turn and whether the turn was executed to avoid a patch of ice or snow. The court ruled that the propriety of the officer’s decision to stop the car depended on the officer’s observations at the time and it did not matter whether the defendant’s wide turn was actually made to avoid a patch of ice or snow in the right lane. The court found that the officer’s actions constituted a valid investigatory stop pursuant to Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868.

The defendant filed a motion to reconsider, and the court requested and received memoranda from both parties on the propriety of the investigatory stop. In ruling on the motion, the court stated that the “officer does not have to determine whether or not there is ice on the roadway to have a reasonable articulable suspicion that a law is being violated, that of executing a right turn not as nearly as practicable to the right side of the roadway.” Further, the court stated, the officer had observed snow and ice obstructing the defendant’s rear window. While the court held that this “of itself is not a violation of the law,” this factor, combined with the wide right turn, justified the officer’s decision to stop the defendant’s vehicle. Accordingly, the court denied the defendant’s motion to reconsider.

The cause then proceeded to a bench trial. The court found the defendant guilty of both DUI and driving with a blood-alcohol concentration greater than .10, but the defendant was found not guilty of the charges relating to the improper right turn, the obstructed window, and the failure to wear a seat belt.

The defendant now appeals his conviction, arguing that the trial court erred when it denied his motion to suppress evidence and quash arrest. On appeal, the defendant contends that, because he had violated no traffic laws, there were no specific and articulable facts justifying Officer Duffey’s stop of the defendant’s vehicle. It is important to note that although the defendant challenges the propriety of the stop, he does not argue that there was no basis for his arrest if, in fact, the investigatory stop was proper. Thus, the question of whether there was probable cause to arrest the defendant for the drunk-driving offenses is not at issue on appeal.

A reviewing court will not reverse the trial court’s finding on a motion to suppress evidence unless the finding is manifestly erroneous. (Village of Gurnee v. Gross (1988), 174 Ill. App. 3d 66, 69, 528 N.E.2d 411, 413.) An officer may make a valid investigatory stop, absent probable cause for an arrest, provided the officer’s decision is based on specific and articulable facts and reasonable inferences therefrom which warrant the investigative intrusion. (Terry, 392 U.S. at 21, 20 L. Ed. 2d at 906, 88 S. Ct. at 1880.) A mere suspicion or hunch is insufficient. (People v. Houlihan (1988), 167 Ill. App. 3d 638, 642, 521 N.E.2d 277, 280.) The standard by which such stops are evaluated is not the same as the more exacting requirement of probable cause to arrest or search. In order to make a valid investigatory stop, a police officer must have knowledge of specific, articulable facts which, when combined with the rational inferences from them, create a reasonable suspicion that the person in question has committed or is about to commit a crime. (People v. Repp (1988), 165 Ill. App. 3d 90, 94, 518 N.E.2d 750, 753-54.) Courts will review the officer’s decision using an objective standard: whether the facts available to the officer warrant a person of reasonable caution to believe that the action which the officer took was appropriate. (Houlihan, 167 Ill. App. 3d at 642, 521 N.E.2d at 280.) Generally, a traffic violation provides a sufficient basis for a Terry stop of an automobile, although an officer does not necessarily have to witness such a violation in order to establish reasonable ground for a stop. Houlihan, 167 Ill. App. 3d at 643-44, 521 N.E.2d at 281.

The defendant argues that his conduct, as observed by the officer, did not evidence any traffic violations and that, therefore, the officer had no reason to suspect that the defendant had committed any crime. The defendant concedes that Illinois law requires right-hand turns to be made “as close as practical to the right-hand curb or edge of the roadway.” (Ill. Rev. Stat. 1987, ch. 95½, par. 11—801(a)(1).) Furthermore, vehicles are generally required to drive on the right-hand side of the center line on the roadway. (Ill. Rev. Stat. 1987, ch. 95½, par. 11—701(a).) There are, however, exceptions to this requirement. A vehicle may drive to the left of the center line if “an obstruction exists making it necessary” to do so, although such a maneuver must be done without creating a hazard to oncoming motorists. (Ill. Rev. Stat. 1987, ch. 95½, par. 11—701(a)(2).) It is also a violation of Illinois law to drive with an obstructed rear window, but only if the vehicle is not equipped with effective rearview mirrors. People v. LaGrone (1984), 124 Ill. App. 3d 301, 303, 464 N.E.2d 712, 714.

The defendant argues that he was confronted with an obstacle, a patch of ice or snow, which made it necessary for him to cross over the center line for a brief moment. The defendant also argues that, since his car was equipped with rearview mirrors, it was not a violation of the law to have his rear window covered with ice and snow. Thus, the defendant argues, his driving did not evidence any traffic violations upon which Officer Duffey could premise a valid investigatory stop of the vehicle.

We disagree. It is not necessary for an officer making an investigatory stop of a vehicle to have in hand sufficient evidence to convict the driver. (See People v. Bafia (1983), 112 Ill. App. 3d 710, 716, 445 N.E.2d 878, 882.) Here, the defendant’s motivation for driving around the patch of ice was a plausible, and ultimately successful, defense to the charge of leaving his proper lane. Evaluation of the officer’s conduct in stopping the vehicle, however, cannot be based on facts pertaining to the defendant’s motivation which are made known later; the inquiry must focus on “the facts available to the officer” at the time. (Houlihan, 167 Ill. App. 3d at 642, 521 N.E.2d at 280.) The officer’s testimony shows that he did not see any ice or snow on the road the night of the incident. He merely saw the defendant’s car drive out of the proper lane while executing a right-hand turn. This provided the officer with sufficiently specific and articulable facts from which a reasonable person might conclude that a law was being broken. Therefore, the investigatory stop was proper under the facts of this case. We need not address the question of whether the defendant’s obstructed rear window also provided a sufficient basis for an investigatory stop.

The defendant refers us to several cases which, he contends, support a conclusion different from the one we have reached in this case. In People v. Collins (1987), 154 Ill. App. 3d 149, 506 N.E.2d 963, the police officer saw the defendant’s car cross the center line, but he could not deny that the defendant swerved to avoid a parked car. The court held that this evidence was insufficient to show that the defendant created any hazard and, therefore, it did not provide a sufficient basis for the stop. (Collins, 154 Ill. App. 3d at 151, 506 N.E.2d at 965.) In People v. Houlihan, we held that Collins correctly stated the law regarding investigatory stops, but we found that Collins was factually inapposite in that case. (Houlihan, 167 Ill. App. 3d at 645, 521 N.E.2d at 282.) We now note that the analysis in Collins may also be flawed. The court in Collins relied on the fact that the “defendant gave an unrefuted, reasonable explanation for his safe usage of the oncoming lane.” (Collins, 154 Ill. App. 3d at 151, 506 N.E.2d at 965.) We believe that this approach departs from the fundamental notion that the reasonableness of a police officer’s investigatory stop must be based on “the facts available to the officer.” (Houlihan, 167 Ill. App. 3d at 642, 521 N.E.2d at 280.) The fact that the defendant may later demonstrate a valid reason for what reasonably appears to be illegal conduct may affect his ultimate liability for that offense, but it should not affect the validity of the police officer’s investigatory stop.

Similarly, the defendant cites People v. Decker (1989), 181 Ill. App. 3d 427, 430, 537 N.E.2d 386, 388, for the proposition that a “nonhazardous, momentary crossing of the center line [is] not reasonable grounds for a stop.” Again, we do not find persuasive the analysis set forth in this case. First, this statement of the law is incomplete. A motorist may cross the center line so long as he does not create a hazard to oncoming drivers, but only if “an obstruction exists making it necessary” to do so, (Ill. Rev. Stat. 1987, ch. 95½, par. 11—701(a)(2).) Second, the court in Decker mistakenly evaluated the reasonableness of the police officer’s actions on the basis of facts which may not have been reasonably perceptible to him at the time. The court’s approach again allowed the defendant to make an after-the-fact explanation of what appeared, on its face, to be illegal conduct. Third, the result in Decker stems at least as much from the trial court’s resolution of conflicting testimony as it does from the questionable legal proposition cited above.

Finally, the defendant argues that an officer’s authority to investigate a traffic violation may not serve as a subterfuge to obtain other evidence based on suspicion. (See People v. Penny (1989), 188 Ill. App. 3d 499, 502, 544 N.E.2d 1015, 1017.) The defendant relies on a portion of Officer Duffey’s testimony to show that the officer chose to follow the defendant’s vehicle merely “because there was no other traffic.” A closer examination of the officer’s testimony, however, reveals that he did not follow the defendant because his automobile was the only one on the road; instead, the officer’s testimony was only that he immediately turned his vehicle left to follow the defendant “because there was no other traffic” and a turn was possible at that time. Furthermore, as we have shown, the officer did have a valid reason to stop the defendant’s vehicle. The defendant has not here argued that, following the stop, there was insufficient reason for the officer to arrest the defendant because of his intoxication. Because the stop was valid, and because the trial court determined there was probable cause for an arrest based on drunken driving, we find no suggestion that the officer improperly relied on a pretext to support an investigation based on mere suspicion. See People v. Fenner (1989), 191 Ill. App. 3d 801, 807, 548 N.E.2d 147, 151-52.

Accordingly, the judgment of the circuit court is affirmed.

Affirmed.

UNVERZAGT, P.J., and McLAREN, J., concur.


text:
    JOAN J. MESSENGER, Indiv. and as Adm’r of the Estate of Susan I. Messenger, Deceased, and as Adm’r of the Estate of Lisa M. Messenger, Deceased, Plaintiff-Appellant, v. JOSEPH VOGLER, Adm’r of the Estate of Wayne C. Anderson, Jr., Deceased, Defendant (Stanton Point Ventures, Ltd., d/b/a Juke Box Saturday Night, Fox Lake, et al., Defendants-Appellees).
    Second District
    No. 2—89—0701
    Opinion filed March 27, 1990.

      Gerard A. Facchini, of Law Offices of Gerard A. Facchini (Kenneth J. Sophie, of counsel), for appellant.
    Brydges, Riseborough, Morris, Franke & Miller, of Waukegan (Louis W. Brydges, Jr., of counsel), for appellees.
   JUSTICE McLAREN

delivered the opinion of the court:

Plaintiff appeals from the dismissal of certain paragraphs contained in her second amended complaint seeking damages under the Liquor Control Act of 1934 (Dramshop Act or Act) (Ill. Rev. Stat. 1987, ch. 43, par. 135). We affirm.

Plaintiff’s decedents, daughters Susan and Lisa Messenger, were killed instantly on September 1, 1986, when the boat on which they were riding was rammed by a boat driven by Wayne Anderson. Plaintiff alleged in her complaint that defendants herein served alcohol to Anderson before the collision and that Anderson’s intoxication was at least one cause of the collision. Count III of plaintiff’s second amended complaint, the only count at issue in this appeal, sought damages under the Act for personal and pecuniary injuries sustained by decedents. Specifically, plaintiff appeals from the court’s dismissal, pursuant to section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—615), of paragraphs 21(b) through 21(e) of count III of her complaint, which sought damages for the following injuries to the decedents:

“b. The temporary disability and disfigurement experienced by Susan and Lisa Messenger from the time of the occurrence in question until the time of death.
c. The permanent disability and disfigurement experienced by Susan and Lisa Messenger.
d. The nature and extent of the injuries which proximately resulted in the deaths of Susan and Lisa Messenger.
e. The pecuniary injuries sustained as a result of the deaths of Susan and Lisa Messenger.”

The issue, as framed by the plaintiff, is whether the death (even instantaneous death) of an individual due to the wrongful conduct of an intoxicated person constitutes a compensable injury within the meaning of the phrase “injury to the person” under the Dramshop Act. We conclude that death is not an “injury to the person,” and we affirm the trial court’s ruling.

Section 6 — 21 of the Act, as amended in 1985, states in part: “For all causes of action involving persons injured, killed, or incurring property damage after the effective date of this amendatory Act of 1985, in no event shall the judgment or recovery for injury to the person or property of any person exceed $30,000 for each person incurring damages, and recovery under this Act for loss of means of support resulting from the death or injury of any person shall not exceed $40,000.” (Emphasis added.) (Ill. Rev. Stat. 1985, ch. 43, par. 135.)

The 1985 amendment, among other things, added the language “For all causes of action involving persons injured, killed, or incurring property damage after the effective date of this amendatory Act of 1985.” Plaintiff interprets the inclusion of the word “killed” to mean that the death of the decedent is itself compensable, without having to prove that decedent also suffered any other damage, such as pain and suffering or medical bills. Our review of the words of the Act and the legislative debates surrounding the amendment do not lead us to the same conclusion. We believe that the legislature, in adding the word “killed” to the Act, simply intended to provide that a cause of action under the Act survived a decedent’s death. This court had previously held that such actions survive death. (See Maras v. Bertholdt (1984), 126 Ill. App. 3d 876.) The words of the Act do not require an interpretation as broad as that given by plaintiff. In addition, the legislative debates include no statement to support plaintiff’s conclusion. When asked why he thought the bill amending this Act was necessary, the House sponsor of the bill replied:

“Well, Representative Mautino, I believe that we found over the years since, I think, 1954 when the Dramshop was last amended to its limits that inflation has played a great toll upon our society, and that the recovery for these damages is in a fairly low amount of money, and this was an attempt when we started out based upon the DUI Task Force recommendations to bring up those recoverable amounts to a more reasonable sum of money.” (84th Ill. Gen. Assem., House Proceedings, May 23, 1985, at 165 (statements of Representative Countryman).)

We believe that a modification to the Act as significant as that urged by plaintiff would have been an acknowledged reason for amending the Act and would have been actively debated by the legislature. There is no indication that such a modification was even considered by the legislature.

Plaintiff cites for support Beaupre v. Boulevard Billiard Club (R.I. 1986), 510 A.2d 415, decided by the supreme court of Rhode Island. The court in Beaupre held:

“The pain and suffering associated with a fatal injury as well as the wrongful death of an individual are certainly within the context of the phrase ‘any injury to the person.’ The plain language of the statute, when coupled with the clear legislative intent, compels a finding that the wrongful death of an individual constitutes a compensable injury.” Beaupre, 510 A.2d at 416.

While the Rhode Island Supreme Court found clear legislative intent to expand the reading of its dramshop act, we are not so convinced of the intent of our own legislature to enlarge the classification of actionable injuries under our Act. It seems anomalous that a person injured to the extent that he dies immediately should have no cause of action for his personal injuries while a person less severely injured should be able to recover damages. However, the cause of action allowed under the Act is purely statutory and, as such, requires greater judicial restraint in attempts to alleviate perceived injustices. (Stevens v. Lou’s Lemon Tree, Ltd. (1989), 187 Ill. App. 3d 458, 463.) Any expansion of the classification of injuries actionable under this Act must be undertaken by the legislature, not the courts. In the absence of clear legislative intent, we refuse to expand the right of recovery under this Act.

Plaintiff, in her prayer for relief, also seeks reinstatement of her claims for damages for temporary and permanent disability and disfigurement and for pecuniary injuries. However, plaintiff has not addressed or argued these claims in her brief. We therefore will similarly disregard those claims.

A motion to dismiss admits all well-pleaded facts and all inferences which can be drawn from those facts for the purpose of determining whether, as a matter of law, those facts state a claim upon which relief may be granted. (Maras, 126 Ill. App. 3d at 889.) We conclude that plaintiff has failed to allege facts sufficient to show recoverable damages. We therefore find, as a matter of law, that plaintiff’s complaint failed to state a cause of action, and we affirm the trial court’s dismissal of the complaint.

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

Affirmed.

UNVERZAGT, P.J., and DUNN, J., concur.


author: JUSTICE HOWERTON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LARRY JOE ADAMS, Defendant-Appellant.
    Fifth District
    No. 5—87—0539
    Opinion filed February 23, 1990.

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

delivered the opinion of the court:

Convicted murderer, Larry Joe Adams, appeals the denial of his post-trial motion by the circuit court of Madison County, and requests a new sentencing hearing with new counsel; alternatively, he says that his natural life sentence is excessive and should be vacated. We affirm.

Defendant, represented by Tyler Bateman of the public defender’s office, was sentenced to death by a jury. Defendant’s post-trial motion claimed that he had been denied the effective assistance of counsel. Private counsel was then appointed. The new attorney filed a post-trial motion which also alleged ineffective assistance of counsel. The circuit court denied the motion. The Illinois Supreme Court affirmed the conviction, but vacated the death sentence and remanded. People v. Adams (1985), 109 Ill. 2d 102, 121, 485 N.E.2d 339, 349, cert. denied (1986), 475 U.S. 1088, 89 L. Ed. 2d 730, 106 S. Ct. 1476.

On remand the public defender’s office was appointed to represent the defendant, and Bateman again was assigned the case. Defendant objected, alleging that he perceived animosity between himself and Bateman.

The resentencing hearing was held, and Bateman represented defendant, who this time drew a natural life sentence.

Defendant first argues that he was entitled to counsel other than Bateman at the resentencing hearing due to the prior allegations of Bateman’s ineffectiveness as counsel.

Section 113 — 3(b) of the Illinois Code of Criminal Procedure of 1963 reads, “[i]f *** the court finds that the rights of the defendant will be prejudiced by the appointment of the Public Defender, the court shall appoint as counsel a licensed attorney.” (Ill. Rev. Stat. 1983, ch. 38, par. 113—3(b).) Section 4 of the Public Defender Act reads, “[ejvery court shall *** where the court finds that the rights of the defendant would be prejudiced by the appointment of the public defender, appoint counsel other than the public defender, except as otherwise provided in Section 113—3 of the ‘Code of Criminal Procedure of 1963’.” (Ill. Rev. Stat. 1983, ch. 34, par. 5604.) A showing of prejudice is necessary under each statute before the court can exercise its discretion and appoint another attorney. People v. Hall (1986), 114 Ill. 2d 376, 499 N.E.2d 1335.

The constitutional right to appointed counsel does not allow an indigent defendant to pick his appointed counsel. (People v. Cox (1961), 22 Ill. 2d 534, 177 N.E.2d 211, cert. denied (1963), 374 U.S. 855, 10 L. Ed. 2d 1076, 83 S. Ct. 1925.) Absent an abuse of discretion, the trial court’s denial of a request for another attorney will be affirmed upon review. People v. Gardner (1977), 47 Ill. App. 3d 529, 362 N.E.2d 14.

Defendant argues that People v. Brown (1976), 40 Ill. App. 3d 562, 352 N.E.2d 15, People v. Simpson (1984), 129 Ill. App. 3d 822, 473 N.E.2d 350, and People v. Krankel (1984), 102 Ill. 2d 181, 464 N.E.2d 1045, warrant a new sentencing hearing with new counsel, since defendant had previously accused Bateman of disloyalty and incompetence and because Bateman had even alleged his own incompetence. Brown, Simpson, and Krankel are distinguishable from this case because they were designed to meet a different problem. Only Krankel need be addressed to reveal the design.

In Krankel, defendant alleged ineffective assistance of counsel in his post-trial motion. Krankel held that other counsel should have been appointed to argue the post-trial motion so that original counsel would be relieved of the duty of arguing his own ineffectiveness, a most awkward conflict. This case does not fall within Krankel’s rule. Whereas, Krankel was designed to relieve a lawyer from having to argue his own ineffectiveness, in this case, the supreme court remanded only for resentencing; no motion for new trial was heard or could have been heard; ineffectiveness of counsel at trial is not relevant to the only issue presented, namely: how much time should defendant serve. Therefore, Bateman did not have to argue his own ineffectiveness. Hence, there was no conflict inherent in the representation itself.

Since no inherent or per se conflict exists, defendant must demonstrate that he was prejudiced by Bateman’s representation in the sentencing hearing. (People v. Hall (1986), 114 Ill. 2d 376, 499 N.E.2d 1335.) Defendant has demonstrated no prejudice, but has fallen back on vague charges and finally says, as if sighing in agitated resignation, that “the effect *** upon Bateman’s performance cannot be readily determined,” and then sniffs, “new counsel should have been appointed.” Is this demonstration? “Demonstrate” means “to teach by exhibition of samples.” Where is the teaching? Where is the exhibition? Where are the samples'? They are not there. Defendant has not demonstrated prejudice.

Next, defendant complains that his sentence was excessive. His sentence is natural life. Here is what he did. He planned to rob his victim’s shop, a pharmacy. He “cased” his target. He told cohorts he needed a gun to rob a drugstore of money and drugs, and he knew the merchant would be there alone. He got a gun. He went in the pharmacy. He pulled the gun. He walked his victim to the basement. He forced him to kneel. He put the gun to the poor man’s head and shot him, execution-style. The man’s body slumped, defendant shot him three more times in the body and once in the arm. Defendant did not forget to take the money and drugs. He wanted them.

His sentence is natural life. Here is his history. Prior convictions: robbery, theft, violation of probation, battery, and forgery. The facts of another armed robbery were shown in sentencing, for good measure. In that case, defendant committed an armed robbery, shot at his victim, missed, and then when he got out of jail, threatened the victim’s daughter for testifying against him. But, there is even more. Once he was arrested for a disturbance at his mother’s house; on his way back to jail, he said he was going back to kill his own mother.

The test is whether the circuit court abused its discretion in imposing this sentence. (People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541; People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.) We think the circuit court did not. Natural life means that defendant will leave prison only when his life ends. We think that for the safety of other human beings who have to live with him on this planet that that is not such a bad idea.

The circuit court is affirmed.

Affirmed.

LEWIS, P.J., and GOLDENHERSH, J., concur.


author: JUSTICE GOLDENHERSH

text:
    VERNON BUETTNER et al., Plaintiffs-Appellants, v. EDNA RINTOUL et al., Defendants-Appellees.
    Fifth District
    No. 5—89—0013
    Opinion filed February 28, 1990.
    Rehearing denied April 5, 1990.
    Robert E. Ryan, of Alton, for appellants.

      Steven N. Mottaz, of Thomas, Mottaz, Eastman & Sherwood, of Alton, for appellee Edna Rintoul.
    Dean E. Sweet, of Holland, Sweet & Barr, of Wood River, for appellee Milton Bracht.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

Plaintiffs, Vernon Buettner, Oliver Buettner, Howard Buettner and Ruth Ridenhower, appeal the judgment of the circuit court of Madison County finding that the will of Arthur J. Buettner and Irene A. Buettner is not a mutual will. We affirm.

Testators, Arthur J. Buettner and Irene A. Buettner, executed then-last will and testament on October 28, 1959. Arthur passed away on May 1, 1966. The will was probated in Madison County and letters testamentary issued to Irene on July 25,1966.

On October 18, 1966, Irene transferred title to real estate previously owned by Arthur and Irene to herself and her sister, defendant Edna Rintoul, as joint tenants. In September 1986, Irene passed away leaving a last will and testament dated April 12, 1983. In this second will, Irene named defendant, Milton Brecht, as sole legatee and devisee.

Plaintiffs in this cause are the children and sole heirs at law of Arthur, but are not related to Irene. Plaintiffs argue that the 1959 will was joint and mutual and therefore specifically enforceable as a contract. Defendants respond that (1) the will was not joint and mutual, and (2) testators held the land in joint tenancy and Irene, as survivor, acquired an undivided ownership interest in the land upon Arthur’s death.

As we noted in In re Estate of Schwebel (1985), 133 Ill. App. 3d 777, 479 N.E.2d 500, there are five common characteristics of a joint and mutual will repeatedly recognized by Illinois courts:

‘First, we look for the label the testators have assigned to the will — whether they refer to it as their joint and mutual will. [Citation.]
Second, we look for reciprocal provisions in the will — whether the testators made a disposition of his or her entire estate in favor of the other. [Citation.]
Third, we look for a pooling of the testators’ interests. In a joint and mutual will the testators pool all of their interests— whether owned jointly, in common, or severally — into one joint fund. [Citation.]
Fourth, we look for a common dispositive scheme under which the parties dispose of the common fund by bequeathing it to their heirs in approximately equal shares. [Citation.]
Fifth, we look for the use by the testators of common plural terms such as ‘we’ and ‘our’ as further evidence of the testators’ intent to make a joint and mutual will. [Citation.]’ ” (Emphasis in original.) 133 Ill. App. 3d at 783-84, 479 N.E.2d at 505, quoting Rauch v. Rauch (1983), 112 Ill. App. 3d 198, 201, 445 N.E.2d 77, 80.

The will before us is labeled “Last Will and Testament of Arthur J. Buettner and Irene A. Buettner.” It is not labeled “Joint and Mutual Will of Arthur J. Buettner and Irene A. Buettner.”

Provisions IV and VI are reciprocal dispositions of the entire estate of each. They read:

‘TV
I, ARTHUR J. BUETTNER, being fully confident that my wife shall amply provide for the welfare of our children, HOWARD L. BUETTNER, VERNON BUETTNER, OLIVER J. BUETTNER and RUTH RIDENHOWER, I do hereby give, devise and bequeath to IRENE A. BUETTNER, my wife, all of the property, real, personal or mixed of which I may die seized and possessed, absolutely and forever.”
“VI.
I, IRENE A. BUETTNER, being fully confident that my husband shall amply provide for the welfare of our children, HOWARD L. BUETTNER, VERNON BUETTNER, OLIVER J. BUET-TNER and RUTH RIDENHOWER, I do hereby give, devise and bequeath to ARTHUR J. BUETTNER, my husband, all of the property, real, person or mixed of which I may die seized and possessed, absolutely and forever.”

In these reciprocal provisions, the testators made a disposition of his or her entire estate in favor of the other.

In the will before us, we cannot find a pooling of the testators’ interests into one fund. In a joint and mutual will the testators pool all of their interests — whether owned jointly, in common, or severally — into one joint fund. In re Estate of Schwebel (1985), 133 Ill. App. 3d 777, 783-84, 479 N.E.2d 500, 505; Rauch v. Rauch (1983), 112 Ill. App. 3d 198, 201, 445 N.E.2d 77, 80.

Next, we cannot find a common dispositive scheme under which the parties dispose of the common fund by bequeathing it to their heirs in approximately equal shares. The will only discusses a distribution of property in the event both testators die together.

Finally, we look for the use by the testators of common plural terms such as “we” and “our” as further evidence of the testators’ intent to make a joint and mutual will. Here, the use of such common language is sporadic and irregular. Far more common are singular words such as “I” and “my.”

In addition, this situation is strikingly similar to that of Larison v. Record (1987), 117 Ill. 2d 444, 512 N.E.2d 1251. In Larison, testators wrote a will entitled “Mutual Will.” (117 Ill. 2d at 447, 512 N.E.2d at 1252.) As in this case, the first provision of the Larison will directed that funeral expenses and debts be paid by the estate. (117 Ill. 2d at 447, 512 N.E.2d at 1252.) As in this case, the Larison will’s second paragraph declared that the surviving testator was to take all real and personal property possessed by the other. Again, as in this case, the Larison will’s third paragraph provided for a distribution in the event the testators met their deaths as a result of a common disaster. (117 Ill. 2d at 447-48, 512 N.E.2d at 1252.) Finally, as in this case, the fourth paragraph of the Larison will related that the surviving testator was to be executor of the will. 117 Ill. 2d at 448, 512 N.E.2d at 1252.

In Larison, the supreme court noted that the testators only provided for the two contingencies — the simultaneous death of testators through a common cause, and the death of one and the other surviving the first. The supreme court held that the Larison will did not preclude the surviving testator from making a new will. (117 Ill. 2d at 450, 512 N.E.2d at 1254.) The same can be said of the Buettner will.

In their complaint, plaintiffs allege that testators held the land as joint tenants. Defendants do not dispute this fact. The law is well settled that title to real estate held in joint tenancy does not pass under a joint and mutual will. The real estate can, however, be the subject of a limiting contractual agreement contained within such a will. (First United Presbyterian Church v. Christenson (1976), 64 Ill. 2d 491, 497, 356 N.E.2d 532, 535; Moline National Bank v. Flemming (1980), 91 Ill. App. 3d 398, 403, 414 N.E.2d 936, 939.) We can find no such limiting contractual agreement here, however. Thus, upon Arthur’s death, Irene acquired the land by virtue of her joint tenancy, not under the terms of the will. As noted above, nothing in the will prohibited Irene from disposing of the property after Arthur’s death as she desired.

At the time of her death, Irene owned the land in joint tenancy with her sister, defendant, Edna Rintoul. The land therefore passed to Edna by joint tenancy and not under Irene’s 1983 will.

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

Affirmed.

LEWIS, P.J., and HOWERTON, J., concur.


author: JUSTICE CHAPMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN T. SMITH, Defendant-Appellant.
    Fifth District
    No. 5—87—0752
    Opinion filed March 7, 1990.

      Daniel M. Kirwan and Rita K. Peterson, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    John Baricevic, State’s Attorney, of Belleville (Kenneth R. Boyle, Stephen E. Norris, and Debra A. Buchman, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE CHAPMAN

delivered the opinion of the court:

The defendant, John T. Smith, was charged with murder in the death of Steve Smith (no relation). After a jury trial, the defendant was found guilty of voluntary manslaughter and was sentenced to six years’ imprisonment. On appeal, the defendant contends that: (1) he was denied a fair trial because the jury was improperly instructed; (2) his defense counsel was ineffective; (3) the trial court considered improper factors in sentencing the defendant; and (4) he is entitled to two additional days’ credit against his sentence of imprisonment.

Although the testimony of the witnesses differs with regard to various details, there was general agreement concerning the series of events which culminated in the shooting of Steve Smith. The defendant and the victim were at the house of their friend, Johnnie Bean, at 9:30 p.m. on January 21, 1987. Bean’s two brothers, Steven and Dion, were also present, as was Damon Williams. The victim was trying to sell some shirts, which were apparently stolen, to Steve Bean. The defendant advised Steve not to buy the shirts because the asking price was too high. This angered the victim, who told the defendant to “stay out of his business” and that “if he was on the streets *** he would get killed.” Thereafter the defendant remained quiet, but a short time later the victim, apparently still angry, began to demean the defendant, calling him a “punk” and making fun of his clothes. The victim then asked the defendant to “come walk with him outside” after Johnnie Bean told them not to argue in his house. Everyone went outside, and the defendant and the victim walked near the driveway. The victim pushed the defendant and they began fighting. After some minutes the defendant got the upper hand in the fight, and was on top of the victim, and the defendant then indicated that he wished to stop fighting. Steve Bean then broke up the fight. The victim then began arguing with Steve Bean, threatening to “whoop” him.

After the fight was broken up the defendant went home and got a .22 caliber rifle. He returned to the Bean residence, carrying the rifle, 5 to 10 minutes after the fight had ended. The victim was still outside the Bean residence, and as the defendant approached, the defendant fired a shot into the street. Upon hearing the shot and seeing the defendant, the victim ran a short distance away, out of the sight of the defendant. About that time a police car drove nearby and the defendant threw the rifle on the ground. After the car had gone, the defendant picked the rifle up and started up the porch steps of the Bean residence. The victim suddenly appeared near the porch, saying “shoot me punk motherfucker” or “if you want to be a man and shoot me, shoot me.” The testimony indicated that the victim then rushed at or lunged at the defendant, and the defendant turned and shot the victim, firing three to five times. There was conflicting evidence concerning whether the defendant continued to fire at the victim after he had fallen on the ground. It was established at trial that the defendant’s rifle had a lever action which had to be operated each time before a shot could be fired.

After he was shot, the victim got up, ran across the street and collapsed. The defendant ran home. An autopsy revealed that the victim had been shot in the upper left chest, the left buttock, and in the back of the left upper arm. The victim died as a result of blood loss from the wounds.

The defendant’s theory at trial was that he had acted in self-defense. He testified that he thought the victim was armed, although he did not state that he ever saw a weapon. Some of the witnesses testified that the victim was a dangerous person who was known to carry and sell guns. In a statement given to the police after his arrest, the defendant did not mention that he thought the victim was armed. In addition, the defendant’s statement indicated that he saw the victim begin walking back towards him, challenging him to shoot, at a distance of one-half of a city block. The jury found the defendant guilty of voluntary manslaughter.

The defendant first contends that he was denied a fair trial because the jury was instructed on the use of force by an initial aggressor. At the conference on jury instructions, defense counsel objected to People’s instruction No. 12 (Illinois Pattern Jury Instructions, Criminal, No. 24—25.09 (2d ed. 1981)) (hereinafter IPI Criminal 2d No. 24—25.09), which read:

“A person who initially provokes the use of force against himself is justified in the use of force only if the force used against him is so great that he reasonably believes he is in imminent danger of death or great bodily harm, and he has exhausted every reasonable means to escape danger other than the use of force which is likely to cause death or great bodily harm to the other person.”

The instruction was given over the defendant’s objection. The court also gave, without objection, an instruction on self-defense (Illinois Pattern Jury Instructions, Criminal, No. 24—25.06 (2d ed. 1981)).

The defendant maintains that the court erred in giving IPI Criminal 2d No. 24—25.09 because the victim was the initial aggressor in the instant case. The defendant argues that it is error to give such an instruction where the evidence does not show the defendant to be the initial aggressor (People v. Slaughter (1980), 84 Ill. App. 3d 1103, 405 N.E.2d 1295) and that in the instant case it is “undisputed” that the defendant was not the initial aggressor. The defendant contends that the events leading up to the shooting must be viewed either as one incident, in which case the victim was clearly the initial aggressor, or as three incidents, in which case the victim was the initial aggressor at the time of the shooting because he charged the defendant from behind. We do not agree.

The defendant’s suggestion that the events which occurred must be viewed as either one incident or three incidents ignores an obvious alternative: that the events may be viewed as two incidents. It is clear that the initial physical confrontation between the defendant and the victim ended when the fight was broken up and the defendant went home. The defendant then returned 5 to 10 minutes later and provoked a second, much more dangerous, confrontation with the victim when he returned carrying a loaded rifle. Whether this incident was terminated when the victim briefly fled the scene, and was then followed by a third incident in which the victim was again the aggressor was, we believe, a question for the jury to decide.

As the court stated in People v. Fleming (1987), 155 Ill. App. 3d 29, 37, 507 N.E.2d 954, 959:

“The aggressor instruction in question states that a person may not provoke the use of force and then retaliate claiming self-defense. This instruction is appropriate and permissible when there is evidence that the defendant provoked the deadly affray. [Citation.] The giving of this instruction does not erroneously assume the defendant was the initial aggressor. [Citation.] The question of self-defense, specifically whether the defendant was the initial aggressor, is a question of fact for the jury to decide. Where there is conflicting evidence regarding the issue of self-defense, the jury should be given both the self-defense and the initial aggressor instruction so that they might decide between the conflicting evidence and apply the correct law.”

Accord People v. Santiago (1987), 161 Ill. App. 3d 634, 515 N.E.2d 228; People v. Ellis (1982), 107 Ill. App. 3d 603, 437 N.E.2d 409.

As indicated above, we believe that the evidence presented at trial was sufficient to present a factual issue concerning whether the defendant provoked the fatal confrontation. Thus, we find that the trial court committed no error in giving the instruction.

The defendant next contends that his trial counsel was ineffective because he was unaware that the initial aggressor instruction (IPI Criminal 2d No. 24—25.09) given to the jury did not include the second paragraph of the instruction, which states:

“or (2) he in good faith withdraws from physical contact with the other person and indicates clearly to the other person that he desires to withdraw and terminate the use of force, but the other person continues or resumes the use of force.” IPI Criminal 2d No. 24—25.09.

The defendant argues that the jury could have viewed his actions in walking up the steps to the Bean residence after firing the rifle in the street as a withdrawal. Such a withdrawal, the defendant maintains, would negate the duty to retreat imposed by the first paragraph of the instruction. Absent the duty to retreat, the argument continues, the jury might have found that the defendant acted in self-defense and rendered a verdict of not guilty.

Claims of ineffective assistance of counsel are evaluated under the now familiar two-prong test established by the United States Supreme Court in Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052, and adopted by our supreme court in People v. Albanese (1984), 104 Ill. 2d 504, 473 N.E.2d 1246. In order to prevail, the defendant must show that counsel’s representation fell below an objective standard of reasonableness and that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. (Albanese, 104 Ill. 2d at 525, 473 N.E.2d at 1255.) Moreover, a court of review “ ‘need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. *** If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice *** that course should be followed.’ ” Albanese, 104 Ill. 2d at 527, 473 N.E.2d at 1256, quoting Strickland, 466 U.S. at 697, 80 L. Ed. 2d at 699, 104 S. Ct. at 2069.

We believe that there is little, if any, possibility that the results of the defendant’s trial would have been different if the second paragraph of the initial aggressor instruction had been given. Contrary to the defendant’s assertion, we do not believe that his act of walking up the porch steps of the Bean residence, rifle in hand, moments after firing a shot in the victim’s presence, can fairly be construed as “indicating] clearly to the other person that he desires to withdraw and terminate the use of force” (IPI Criminal 2d No. 24—25.09). The record indicates that the defendant was ably represented by counsel and the single error of which the defendant complains did not “ ‘deprive the defendant of a fair trial, a trial whose result is reliable’ ” (Albanese, 104 Ill. 2d at 525, 473 N.E.2d at 1255, quoting Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064).

The defendant next contends that the trial court erred in sentencing him because it relied on two improper aggravating factors: (1) deterrence; and (2) that the defendant’s conduct caused serious harm, the loss of a life.

The defendant argues that deterrence is not a proper factor to consider in sentencing a defendant convicted of voluntary manslaughter, citing People v. Alejos (1983), 97 Ill. 2d 502, 455 N.E.2d 48. In Alejos our supreme court noted “the difficulty of thinking conceptually of ‘deterring’ a crime such as voluntary manslaughter which is committed on the spur of the moment and, by definition, without any deliberation.” (Alejos, 97 Ill. 2d at 509, 455 N.E.2d at 51.) Alejos did not hold, however, that deterrence cannot be considered in sentencing a defendant convicted of voluntary manslaughter. Instead, Alejos held that a conviction for armed violence (Ill. Rev. Stat. 1979, ch. 38, par. 33A—1 et seq.) cannot be predicated on voluntary manslaughter.

In the instant case it appears that the trial judge was concerned with deterring others from acting as the defendant had acted when, after the initial confrontation had ended, he armed himself with a deadly weapon and returned to confront the victim.

“[T]he fight had broken off at one point in time, I believe the testimony was that you went back and got a rifle. This started the whole thing over. *** You I think re-started the problems; had broken off completely at one point in time, and had you not come back, there would not have been this situation, this confrontation or this death.”

We believe that the trial judge was correct in his belief that the type of unwise and provocative conduct engaged in by the defendant can be deterred. (See People v. Sawyer (1985), 139 Ill. App. 3d 383, 487 N.E.2d 662, aff'd (1986), 115 Ill. 2d 184, 503 N.E.2d 331, cert. denied (1987), 482 U.S. 930, 96 L. Ed. 2d 702, 107 S. Ct. 3216.) We find no error in this regard.

The defendant also maintains that the trial court erred in considering the victim’s death as an aggravating factor. At the sentencing hearing the State argued that the court should consider the “ultimate bodily harm which resulted from this defendant’s actions” as a factor in aggravation. Defense counsel argued that every voluntary manslaughter involves a death, that the taking of life is included in the definition of the offense, and that the loss of life should therefore not be considered as an aggravating factor. Before imposing sentence the trial court stated:

“The two factors that the State mentioned as being in aggravation stand out, there was serious harm, there was a death of an individual, and there was also — there was also the consideration is it necessary to impose a more lengthy penalty or more serious penalty in order to deter others from committing the crime of a similar kind. Those are the considerations, those are the factors in my consideration of what the sentence will be.
On the other side of the coin, though, the jury found that *** there was some provocation *** [b]ut when I consider the fact that there was a taking of a life *** I don’t believe this is a probationable situation because of the fact that there was the loss of a life. ***
On the other hand, when you did get into trouble, it really was a serious situation and caused the loss of a life. You can’t bring that back.
For that reason, Mr. Smith, I’m going to sentence you to a term of six years to the Department of Corrections.”

In People v. Saldivar (1986), 113 Ill. 2d 256, 497 N.E.2d 1138, the defendant was convicted of voluntary manslaughter and sentenced to seven years in the Department of Corrections. At the sentencing hearing the prosecutor emphasized that the defendant had killed the victim. Defense counsel argued that “[b]y definition voluntary manslaughter involves a homicide. There is going to be a death.” (Saldivar, 113 Ill. 2d at 266, 497 N.E.2d at 1142.) In considering the factors in aggravation, the trial court stated: “The number one factor in aggravation — there are some that come to a lesser degree, but the one that is probably the most serious is the terrible harm that was caused to the victim. And the victim is dead today.” (Saldivar, 113 Ill. 2d at 272, 497 N.E.2d at 1144.) The Illinois Supreme Court held that in sentencing a defendant for voluntary manslaughter, it is permissible for the trial court to consider the force employed and the physical manner in which the victim’s death was brought about. The court found, however, that

“the circuit court’s finding in aggravation was not directed at the degree or gravity of the defendant’s conduct, i.e., the force employed and the physical manner in which the victim’s death was brought about or the nature and circumstances of the offense, including the nature and extent of each element of the offense as committed by the defendant. Rather, the record demonstrates that the circuit court focused primarily on the end result of the defendant’s conduct, i.e., the death of the victim, a factor which is implicit in the offense of voluntary manslaughter and which *** cannot be considered in aggravation.” Saldivar, 113 Ill. 2d at 271-72, 497 N.E.2d at 1144.

The supreme court reduced the defendant’s sentence to the statutory minimum period of incarceration of four years.

We find that the instant case is controlled by Saldivar. It is apparent from the trial court’s comments that it considered the victim’s death to be a major aggravating factor in sentencing the defendant. It is also clear that it was not the manner in which the death was brought about that concerned the court, but rather, it was the fact that the end result of the defendant’s conduct was the victim’s death. We find, therefore, that the trial court improperly considered the victim’s death as a factor in aggravation. We do not, however, reduce the defendant’s sentence as the supreme court did in Saldivar because we are unable to determine from the record how much weight this improper factor was accorded by the court. We therefore vacate the defendant’s sentence and remand this cause to the circuit court for resentencing.

Finally, the defendant contends, and the State agrees, that the defendant is entitled to two additional days’ credit against his sentence of imprisonment for the time he spent in custody prior to posting bond. The record indicates that the defendant was arrested on January 21, 1987, and posted bond on January 23. The sheriff’s report to the warden, however, listed the defendant’s date of confinement as January 23, 1987. The defendant is therefore entitled to two additional days’ credit against any sentence of imprisonment which may be imposed on remand. People v. Johns (1984), 130 Ill. App. 3d 548, 474 N.E.2d 739.

Accordingly, the defendant’s conviction is affirmed. The defendant’s sentence is vacated, and this cause is remanded for a new sentencing hearing and for the purpose of issuing an amended mittimus to reflect that the defendant is entitled to two additional days’ credit against any sentence imposed by the circuit court.

Affirmed in part; vacated in part; and remanded with directions.

RARICK and HOWERTON, JJ., concur.


author: PRESIDING JUSTICE BARRY

text:
    LARRY DURFEE, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Old Ben Coal Company, Appellees).
    Fifth District (Industrial Commission Division)
    No. 5—89—0046WC
    Opinion filed March 7, 1990.

      William D. Hanagan, of Hanagan & Dousman, of Mt. Vernon, for appellant.
    A. Courtney Cox, of Hart & Hart, of Benton, for appellee.
   PRESIDING JUSTICE BARRY

delivered the opinion of the court:

An arbitrator found that the petitioner, Larry Durfee, was 10% permanently disabled as a result of injuries arising out of and in the course of his employment (Ill. Rev. Stat. 1983, ch. 48, par. 138.8(d)(2)). The Industrial Commission affirmed the arbitrator’s decision, and the circuit court confirmed the Commission’s decision. The petitioner appeals.

The record shows that on June 6, 1985, the petitioner filed an application for adjustment of claim and a request for hearing, alleging that under section 8(d)(1) of the Workers’ Compensation Act (Ill. Rev. Stat. 1983, ch. 48, par. 138.8(d)(1)) he was entitled to compensation from the respondent, Old Ben Coal Company. At the hearing before the arbitrator, the petitioner testified that he had been employed by the respondent as a repairman. His job duties included repairing equipment and lifting heavy pieces of machinery. On June 16, 1984, he and another man attempted to move a piece of sheet metal onto a belt line. The petitioner knelt under the piece, extended his left leg, and pushed. He then felt a sharp pain in his stomach and left leg. He stopped lifting and spent the rest of the shift riding in a cart and checking transformers. His pain increased throughout the evening, so upon leaving work he went to the hospital. The doctor who saw him prescribed rest and therapy. On a later date, he referred the petitioner to Dr. Richard Morgan.

According to Dr. Morgan’s notes, he first examined the petitioner on August 1, 1984. He noted that the petitioner walked with a limp and could not lift or squat without pain. The petitioner also had tenderness along the insertion of the pectineus and adductor magnus. X rays revealed no bone abnormalities. Dr. Morgan diagnosed the injury as an adductor avulsion from the superior pubic ramus. He prescribed physical therapy and nonsteroidal medicine.

The petitioner continued seeing Dr. Morgan for about one year after the accident. According to the doctor’s notes from this period, the petitioner’s pain did not abate. Dr. Morgan continued with his diagnosis of an adductor strain of the left groin. In making his diagnosis, he noted that there were no physical parameters by which he could measure the petitioner’s progress; he could only rely on the petitioner’s subjective symptoms.

In notes dated July 19, 1985, Dr. Morgan stated that the petitioner had recently completed a one-month rehabilitation program. The petitioner told him that the program had improved his overall tone, but that because of his pain, he had had difficulty performing the simulated duties of a repairman. Dr. Morgan could not explain why the petitioner had not improved with rest and therapy. He was pessimistic about the petitioner’s ability to return to work, but stated that a work trial might be in order. He placed no physical restrictions on the petitioner. If the petitioner failed his work trial, Dr. Morgan stated there was little else he could do.

Dr. John Gragnani stated in a report dated October 8, 1984, that he had examined the petitioner and found that the petitioner had tenderness in the left inguinal area. The pain did not radiate down the leg, but was limited to the lower abdomen and groin. Forced flexion against resistance as well as straight-leg raising caused him discomfort. In a letter dated November 26, 1984, Dr. Gragnani stated that the petitioner continued having pain in his left thigh, although the deep pain had subsided. The petitioner also had difficulty rotating his leg. Dr. Gragnani prescribed further therapy for the injury.

In a letter dated July 19, 1985, Virgil May, the director of a vocational rehabilitation service, stated that the petitioner had participated in a rehabilitation program from June 11 to July 3, 1985. The program consisted of exercises simulating the petitioner’s job activities. May stated that the petitioner had made significant gains in strength and endurance, but that his pain had increased as well. Because of his pain, he was only able to tolerate two hours of exercise a day during the last days of the program. Repetitive motion and leg activity increased his pain. A therapist told May that he believed the pain would continue for at least six to nine months. May was uncertain whether the petitioner’s pain would completely abate in that time. He concluded that the activity level the petitioner was able to maintain was far below that required by his job and that more difficult activities would only irritate his condition. Noting that the petitioner was enrolled in the seminary and planned on being ordained as a minister, May recommended that the petitioner pursue his clerical goals and be released from his former position.

John Grenfell, who holds a doctorate in vocational guidance and educational psychology, testified that the petitioner’s injury would prevent him from returning to work of heavy or moderate physical difficulty. He noted that the petitioner could anticipate an earning reduction of one-half to two-thirds of his former salary if he performed clerical work.

The petitioner testified that 15 years earlier he had been employed as a computer operator. He was presently employed as a school administrator for the Praise World Outreach Church at a salary of $250 per week. He said that he enjoyed his new job and that it was the best one he could find. He was also an ordained minister and an elder in his church. He continued having constant pain in his groin and upper leg, which was aggravated by twisting or lifting as well as by long standing, walking, or sitting.

The arbitrator found that the petitioner had sustained accidental injuries arising out of and in the course of his employment. He further found that the petitioner was entitled to receive temporary total disability benefits of $327.60 per week for a period of 584/?th weeks. Regarding the request for compensation under section 8(d)(1), the arbitrator noted that the petitioner had sought employment as a school administrator and there was no evidence that he had attempted to return to his job or find other employment. He concluded that the petitioner should be compensated for 10% permanent disability under section 8(d)(2) of the Act (Ill. Rev. Stat. 1983, ch. 48, par. 138.8(d)(2)) instead of for loss of earnings under section 8(d)(1) (Ill. Rev. Stat. 1983, ch. 48, par. 138.8(d)(1)). Accordingly, he awarded the petitioner the additional sum of $293.61 per week for 50 weeks. In affirming the decision, the Commission adopted the arbitrator’s findings.

The petitioner argues on appeal that the Commission erred in making a section 8(d)(2) award. He contends that the Commission should have made a section 8(d)(1) award, because he proved that he was partially incapacitated from pursuing his usual and customary line of employment and, as a result, had suffered a loss in earning capacity.

Section 8(d)(1) of the Workers’ Compensation Act states that if an accidental injury renders a worker partially incapacitated from pursuing his usual and customary line of employment, he shall receive compensation pursuant to that section. (Ill. Rev. Stat. 1983, ch. 48, par. 138.8(d)(1).) However, if a worker who has been partially incapacitated from pursuing his usual and customary line of employment has not suffered a loss in earning capacity, he shall be compensated pursuant to section 8(d)(2) instead of section 8(d)(1). (Ill. Rev. Stat. 1983, ch. 48, par. 138.8(d)(2).) In establishing his right to compensation, the petitioner has the burden of proving all of the elements of his case by a preponderance of the evidence. (A.M.T.C. of Illinois, Inc. v. Industrial Comm’n (1979), 77 Ill. 2d 482, 397 N.E.2d 804.) On review, the Commission’s compensation finding should be reversed only if it was against the manifest weight of the evidence. Marek v. Industrial Comm’n (1973), 55 Ill. 2d 323, 302 N.E.2d 300.

The record shows that Dr. Morgan suggested that the petitioner attempt a work trial and placed no physical restrictions on him. The petitioner did not attempt to return to work, however, but elected to remain in a job which he enjoyed and which coincided with his clerical interests. Although he stated that this was the best job he could find, there is no evidence that he attempted to obtain a position as a computer operator or any other form of employment. Based on the foregoing, the Commission could have reasonably concluded that the petitioner, while having suffered an injury, had not shown a loss in earning capacity. We therefore find that the section 8(d)(2) award was not against the manifest weight of the evidence.

The petitioner also argues that the arbitrator, the Commission, and the circuit court erred in requiring that he attempt to return to work in order to qualify for a section 8(d)(1) award. A review of the decisions below reveals that only the arbitrator and the circuit court specifically mentioned his failure to return to work. We find that they did so to support their decisions and not to impose a legal requirement. Accordingly, there was no error.

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

Affirmed.

McNAMARA, WOODWARD, McCULLOUGH, and LEWIS, JJ., concur.


text:
      In re ESTATE OF JOSEPHINE DEBEVEC, A Disabled Adult (Eugenia Seibold, Petitioner-Appellee, v. Eleanor Schulte, Respondent-Appellant).
    Fifth District
    No. 5—89—0282
    Opinion filed March 8, 1990.

      William C. Evers III, of Collinsville, for appellant.
    Barbara L. Crowder, of Crowder & Taliana, of Edwardsville, guardian ad litem.

   JUSTICE GOLDENHERSH

delivered the opinion of the court:

Respondent Eleanor Schulte, Madison County public guardian, appeals from an order of the circuit court of Madison County removing her as guardian of the person of Josephine Debevec, a disabled adult, and appointing instead petitioner, Eugenia Seibold. In this cause, respondent raises two issues: (1) whether the trial court erred in removing respondent as guardian of the person of Josephine Debevec, and (2) whether the trial court erred in awarding attorney fees to petitioner. This court affirms.

Josephine Debevec was originally declared a disabled adult in California on July 8, 1988. Josephine had no relatives in California to act as her guardian, so the public guardian was appointed. Josephine was then moved to a nursing home in Illinois, and her conservators in California nominated respondent to act as guardian over both the estate and person of Debevec. On November 9, 1988, the Illinois trial court appointed respondent to be the guardian over the estate and person of Josephine. On February 14, 1989, petitioner herein, a sister of Josephine, petitioned to remove respondent as guardian and sought appointment of herself as guardian of both the estate and person of Josephine. A hearing was held pursuant to her petition.

Mike and Penelope Rousseau both testified that petitioner had been a baby-sitter for their two young children since’ 1985, and had done an excellent job. Barbara Green, a nurse’s aid at the nursing home where Josephine resides, testified that she had seen petitioner visit her sister at the nursing home approximately two to three times per week. Green testified that during these visits petitioner would bring Josephine fruit and new clothing, talk to and walk with Josephine, and generally take good care of her.

Petitioner testified that she is the younger sister of Josephine. She stated that she visits Josephine at least one time per day and sometimes two times per day. She also testified that she did not want compensation should she be appointed guardian and was willing to be guardian only of the person of Josephine and have a bank or another person act as guardian of the estate. Petitioner stated that respondent had not interfered with petitioner visiting her sister, but she insisted that respondent had made her feel that she could not take her sister out of the nursing home to visit other relatives, go on drives, or go out to eat.

Velma Gray and Betty Rushing, also sisters of Josephine, testified that they preferred the public guardian over petitioner. Both specifically questioned petitioner’s ability to manage the estate of Josephine. Vernon Fulcher, a brother-in-law to both Josephine and petitioner, testified that he was satisfied with the job respondent had done and wanted respondent to remain as Josephine’s guardian. Fulcher stated he did not believe petitioner was qualified to act as guardian for Josephine, but could not give a factual basis for this opinion.

At the trial court’s request, another sister, Helen Roberts, testified that she had not been involved in most of the family decisions concerning Josephine, as she had until recently lived in Las Vegas, Nevada. She did think that petitioner would be qualified to act as guardian over Josephine.

Barbara Crowder, the guardian ad litem for Josephine, filed a written report and gave oral testimony. In her report she stated that while the petition in Illinois for guardianship over Josephine gave the names and addresses of Josephine’s nearest relatives, no notice was ever sent to the relatives. Her recommendation was that petitioner was qualified to act as guardian. She noted that Josephine herself indicated that she would prefer petitioner over respondent. The report also stated that none of the family members “have any significant complaints against” petitioner, only “vague reservations about [petitioner’s] ability to handle the financial aspects.” The guardian ad litem found that it would be in the best interests of Josephine for respondent to be removed as guardian and for petitioner to be appointed.

The trial court entered an order finding that while respondent had acted properly at all times, it would be in the “best interests” of Josephine to have respondent removed and petitioner appointed guardian of the person of Josephine Debevec.

Respondent’s first issue on appeal is whether the trial court erred in removing her as guardian. Respondent contends that the General Assembly has not adopted a preference for relatives to act as guardians in cases involving disabled adults. Moreover, once a guardian is appointed for a disabled adult, respondent contends that the guardian cannot be removed unless it can be shown that the guardian is unable to perform his or her duties or has been derelict in doing so. Respondent further argues that it is not enough that a relative desires to act as guardian. If it were enough, this could lead to a never-ending stream of petitions to remove guardians. Petitioner responds that removal of a representative does not limit itself to situations where the representative has committed malfeasance. Additionally, petitioner contends that the problem in the instant case arose because she was not notified concerning the appointment of the public guardian for her sister. Had she been notified of the hearing, the issue would not be removal, but initial appointment of a guardian in Illinois. Petitioner argues that she is better qualified to serve as guardian of her sister because she is a relative and is, therefore, more caring and more concerned over Josephine’s welfare than the public guardian, who is a stranger. We first address the notice issue.

In the instant case, the nearest relatives were not given notice of the hearing to transfer guardianship from the California conservators to the Illinois public guardian. In an original guardianship proceeding, the General Assembly requires that the nearest living relatives of the alleged disabled adult must be given notice. (Ill. Rev. Stat. 1987, ch. 110½, par. 11a—10(f).) Failure to give notice to such relatives is a jurisdictional defect requiring vacation of the order appointing a guardian. (In re Guardianship of Sodini (1988), 172 Ill. App. 3d 1055, 527 N.E.2d 530.) We can find no such notice requirement in cases involving a transferred guardianship and decline to impose such a requirement today. However, we do find that this lack of notice was a contributing factor in the problems faced by these parties. With this in mind, we move to a discussion of the removal issue.

Section 23 — 2 of the Probate Act of 1975 (the Act) deals with the removal of a guardian and states:

“§23 — 2. Removal, (a) On petition of any interested person or on the court’s own motion, the court may remove a representative for any of the following causes. If the representative:
(1) is acting under letters secured by false pretenses;
(2) is adjudged a person subject to involuntary admission under the Mental Health and Developmental Disabilities Code or is adjudged an disabled person;
(3) is convicted of a felony;
(4) wastes or mismanages the estate;
(5) conducts himself in such a manner as to endanger his co-representative or the surety on his bond;
(6) fails to give sufficient bond or security, counter security or a new bond, after being ordered by the court to do so;
(7) fails to file an inventory or accounting after being ordered by the court to do so;
(8) conceals himself so that process cannot be served upon him or notice cannot be given to him;
(9) becomes incapable of or unsuitable for the discharge of his duties; or
(10) there is other good cause.” (Ill. Rev. Stat. 1987, ch. HWIz, par. 23 — 2(a).)

It is clear that the first nine factors deal with reasons a person would be unfit to remain as guardian. The tenth reason, “other good cause,” recognizes that the first nine may not be exhaustive. The question then becomes what constitutes “other good cause.”

Our research and the briefs of counsel indicate that this is a case of first impression as to guardianship of a disabled adult. In other guardianship situations, however, “other good cause” has not been limited to situations in which the representative committed malfeasance. In the case of In re Estate of Wadman (1982), 110 Ill. App. 3d 302, 442 N.E.2d 333, involving guardianship of a minor, it was found that “other good cause” referred to in section 23 — 2(a)(10) of the Act was not limited to those situations where the representative committed malfeasance. The Wadman court found that if this were so, no procedure would exist for returning a child to the custody and control of a parent when that parent had become a fit parent, but the previously appointed guardian had served properly and remained able to do so. (110 Ill. App. 3d at 304, 442 N.E.2d at 335.) We therefore find that other good cause can mean something other than malfeasance or misfeasance by the guardian.

The General Assembly has provided that the selection of a guardian is in the discretion of the trial court, which must give due consideration to the preference of the disabled adult. (Ill. Rev. Stat. 1987, ch. 110½, par. 11a—12(d).) In the case of In re Conservatorship of Browne (1977), 54 Ill. App. 3d 556, 370 N.E.2d 148, the court found that decisions in appointing a conservator for an incompetent should be interpreted in light of the best interest and well-being of the incompetent. (54 Ill. App. 3d at 559, 370 N.E.2d at 151.) The Browne court also found that the recommendations of relatives should be considered by the court because it is presumed that relatives would be more solicitous of an incompetent’s welfare than would a nonrelative. (54 Ill. App. 3d at 559-60, 370 N.E.2d at 150.) Respondent rightly points out that the Browne case is distinguishable from the instant case because Browne dealt with the initial appointment of a guardian while the instant case deals with removal. While recognizing this difference, we find that the holding in Browne is applicable to the instant case as well.

Josephine herself has stated a preference for petitioner to act as her guardian. Petitioner, a sister of the disabled adult, is quite willing to take on the task of guardian. Petitioner visits with her disabled sister at least once per day. All testimony reflected that petitioner is a loving and caring sister. The only complaints lodged against petitioner were by other family members concerned over petitioner’s ability to manage Josephine’s estate, which was valued at between $150,000 and $350,000. Petitioner then withdrew her request to be appointed guardian of Josephine’s estate. The testimony reflected that petitioner would be an appropriate guardian over the person of Josephine Debevec. The guardian ad litem recommended that respondent be removed as guardian of the person of Josephine and that petitioner be appointed instead. Additionally, we note that notice was never sent to Josephine’s relatives on the transfer of guardianship from California to the Madison County public guardian.

The standard of review for removal of an executor under section 23 — 2 of the Act is whether the decision of the trial court is against the manifest weight of the evidence. (In re Estate of Hubbard (1977), 54 Ill. App. 3d 238, 241, 369 N.E.2d 292, 295.) A review of the trial court’s findings and the record leads us to conclude that the decision to remove respondent as guardian of the person of Josephine Debevec was not against the manifest weight of the evidence. The record establishes that there was “other good cause” for removal not in any way reflecting upon respondent’s performance, and respondent remains guardian of the estate. By removing the public guardian and appointing petitioner, the public guardian will have more time to spend on cases where there is not a relative willing to take on the task of guardian of the person. We in no way imply it is enough that a relative desires to be appointed guardian in order to remove a guardian. If that were so, respondent’s argument that this decision would lead to a never-ending stream of removal petitions would be valid. After reviewing the record as a whole, however, we cannot say that the trial court erred in removing respondent and appointing petitioner.

The final question we are asked to address is whether the trial court erred in awarding attorney fees to petitioner. Respondent contends that no benefit was conferred upon the estate of Josephine Debevec by removing respondent as guardian of the person of Josephine and appointing petitioner.

Respondent correctly contends that in order to award attorney fees, the legal services rendered must benefit the estate. (In re Estate of Weber (1980), 80 Ill. App. 3d 1044, 1045, 400 N.E.2d 991, 992; In re Estate of Minsky (1978), 59 Ill. App. 3d 974, 376 N.E.2d 647.) The findings of a trial court will not be disturbed by a reviewing court if there is any evidence in the record to support such findings. (In re Estate of Freund (1978), 63 Ill. App. 3d 1, 4, 379 N.E.2d 935, 937.) After examining the record in this case, we conclude that the award of attorney fees from Josephine’s estate to petitioner was proper.

The General Assembly adheres to the policy that family relationships should be safeguarded. (See section 102(2) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1987, ch. 40, par. 102(2)).) Furthermore, the courts of Illinois presume that a relative would be more solicitous of an incompetent’s welfare than would be a nonrelative. (In re Conservatorship of Browne (1977), 54 Ill. App. 3d 556, 559-60, 370 N.E.2d 148, 150.) We cannot say that a benefit has not been conferred upon the estate of Josephine by removing the public guardian and substituting her sister, as public policy clearly prefers a relative to act in such situations. We do not believe that the trial court’s allowance of attorney fees was manifestly erroneous under the circumstances of this case. Estate of Weber (1980), 80 Ill. App. 3d at 1045, 400 N.E.2d at 992.

For the foregoing reasons, the order of the circuit court of Madison County is affirmed.

Affirmed.

HARRISON and HOWERTON, JJ., concur.