author: JUSTICE SPITZ

text:
    TOYS “R” US, INC., Plaintiff-Appellant, v. CHARLES R. ADELMAN, as Will County Executive, et al., Defendants-Appellees.
    Third District
    No. 3—90—0532
    Opinion filed June 28, 1991.

      Jerome A. Siegan, Gary L. Starkman, and Allen H. Dropkin, all of Arvey, Hodes, Costello & Burman, of Chicago, for appellant.
    Edward Burmila, Jr., State’s Attorney, of Joliet (Judith Z. Kelly, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for appellees.
   JUSTICE SPITZ

delivered the opinion of the court:

This is an appeal by the plaintiff Toys “R” Us, Inc., from an order of the circuit court of Will County dismissing plaintiff’s complaint against defendants Will County (County) and Charles R. Adelman, County executive. In this action, plaintiff sought a declaratory judgment, mandamus, and other relief. The action challenged the validity of a County resolution passed on May 10, 1990, which repealed an earlier resolution (County resolution 89 — 332 passed on December 11, 1989) which had declared a real estate tax abatement for plaintiff. The trial court’s reason for granting defendants’ section 2 — 619(aX9) (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 619(a)(9)) motion was that section 162 of the Revenue Act of 1939 (Revenue Act) (Ill. Rev. Stat. 1989, ch. 120, par. 643) did not authorize the County to extend real estate tax abatements under the circumstances of this case and, therefore, resolution 89 — 332 was a nullity.

Whenever the granting of a motion to dismiss is reviewed, all well-pleaded facts alleged in the complaint are taken as true, and the test for determining the propriety of granting the motion to dismiss is whether it appears no set of facts may be proved so as to entitle plaintiff to recover from defendant. (Wheeler v. Caterpillar Tractor Co. (1985), 108 Ill. 2d 502, 485 N.E.2d 372; Johnston v. City of Bloomington (1979), 77 Ill. 2d 108, 395 N.E.2d 549.) Any allegations which are merely conclusions, unsupported by allegations of specific facts, are not, however, admitted. Howell v. Blecharczyck (1983), 119 Ill. App. 3d 987, 457 N.E.2d 494.

Section 2 — 619 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 619) allows for the filing of a motion for involuntary dismissal based on defects or defenses enumerated in the statute. For example, under section 2 — 619(aX4) (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 619(a)(4)) defendant may seek dismissal if the claim is barred by a prior judgment, under theories of res judicata or collateral estoppel. If the ground for dismissal is not evident from the face of the pleading, the motion may be supported by affidavit.

The failure to allege special damages and the failure to state a cause of action are not such affirmative matter precluding relief under section 2 — 619. (Rowan v. Novotny (1987), 157 Ill. App. 3d 691, 510 N.E.2d 1111.) In Rowan (157 Ill. App. 3d at 693-94, 510 N.E.2d at 1112-13), the majority distinguished section 2 — 615 and section 2— 619 (see Ill. Rev. Stat. 1989, ch. 110, pars. 2 — 615, 2 — 619) motions:

“The purpose of section 2 — 619 is primarily that of affording a means of obtaining at the outset of a case a summary disposition of issues of law or of easily proved issues of fact. The basis of the motion must go to an entire claim or demand. (Ill. Ann. Stat., ch. 110, par. 2 — 615, Historical and Practice Notes (by Albert E. Jenner, Jr., Philip W. Tone and Arthur M. Martin) (Smith-Hurd 1985).) Although defects that appear on the face of the pleading attacked may, according to the letter of the section, be reached by a section 2 — 619 motion, the section is not designed for that purpose. (Leitch v. Hine (1946), 393 Ill. 211, 66 N.E.2d 90.) In other words, if the only ground of a motion is a defect that appears on the face of the pleading attacked the appropriate method of reaching that defect is by a motion under section 2 — 615.”

See also Michel v. Gard (1989), 181 Ill. App. 3d 630, 536 N.E.2d 1375.

In the case at bar, the motion to dismiss was made pursuant to section 2 — 619(aX9) of the Code. Under that subsection, the motion asserts the claim is barred by some affirmative matter which avoids the legal effect or defeats the claim other than one of the grounds described in the previous eight subsections. (Defendants also filed a motion to dismiss pursuant to section 2 — 615 of the Code, but the trial court, having granted the section 2 — 619 motion, found it unnecessary to address the section 2 — 615 motion.)

Plaintiff’s complaint alleged in two counts the following facts. In 1988, plaintiff began a search for a site upon which to construct a regional distribution center. Twenty-five sites in Cook, Will, Kane, and Du Page Counties in Illinois were reviewed. Six of these sites were located in Will County.

On February 3, 1988, John A. Annerino, chairman of the Will County board, sent a letter to the Joliet-Will County Center for Economic Development, which had been designated by Will County as the County’s Economic Development Program Review Board. In that letter, a copy of which was passed on to representatives of plaintiff, Annerino stated, “[t]he County usually offers a three-year 100% abatement of taxes on expansion of businesses increasing jobs for Will County residents and to new companies locating in Will County.” Subsequently, plaintiff was advised by the Joliet-Will County Center for Economic Development that plaintiff’s project would be eligible for real estate tax abatement from Will County.

Plaintiff alleges that, in reliance on the representations of the availability of abatements, plaintiff entered into a contract to purchase 55 acres in Will County. On December 11, 1989, plaintiff filed a request with Adelman for a property tax abatement. The estimated annual abatement ranged from $23,130 to $30,840. On December 21, 1989, the Will County board adopted resolution 89 — 332, which authorized the Will County executive to enter into an agreement of intent to abate property taxes with plaintiff upon the execution of such agreement by plaintiff. On December 28, 1989, Adelman signed the agreement and sent the signed copy to the Will County clerk, but at no time was the agreement forwarded to plaintiff.

Plaintiff further alleges that in reliance on the resolution and the signing of the agreement by Adelman, plaintiff (1) purchased the subject site on March 21, 1990, at a cost of $1,375,000, (2) applied for and received a building permit from the City of Joliet at a cost of $29,069, and (3) expended a sum in excess of $7,630,400 on the project. On April 20, 1990, plaintiff delivered to the office of the County executive page 7 of the agreement signed by Michael Park Miller on behalf of plaintiff on April 18, 1990. Adelman had previously signed page 7. On May 10, 1990, according to plaintiff’s complaint, at a special meeting of the Will County board, a motion was adopted purporting to repeal the resolution and to deny the tax abatement to plaintiff.

In count II of plaintiff’s complaint, it is further alleged that Adelman was obligated by section 9 of the County Executive Act (Ill. Rev. Stat. 1987, ch. 34, par. 709, now section 2 — 5009 of the County Executive Law (Ill. Rev. Stat. 1989, ch. 34, par. 2 — 5009)) to faithfully execute all orders, resolutions, and regulations of Will County. Nevertheless, Adelman has refused and continues to refuse to execute the agreement even after having received the signed page 7 of the agreement on April 20,1990.

In count I, plaintiff sought to have the circuit court declare resolution 89 — 332 and the agreement valid and binding upon the parties and to declare as a nullity the action of the county to repeal the tax abatement. Count II requests the issuance of a writ of mandamus against Adelman.

The basis for defendants’ motion to dismiss pursuant to section 2 — 619 was that Will County was without authority to abate taxes. Section 162 of the Revenue Act provides, in pertinent part:

“Any taxing district, upon a majority vote of its governing authority, may, after the determination of the assessed valuation of its property, order the clerk of that county to abate any portion of its taxes on the property of any commercial or industrial firm locating within the taxing district during the immediately preceding calendar year from another state, territory, or country, or having been newly created within this State during the immediately preceding calendar year, or for an expanded previously existing facility. Such abatement shall not exceed a period of 10 years and the total aggregate amount of abated taxes for all taxing districts combined shall not exceed $1,000,000.” (Ill. Rev. Stat. 1989, ch. 120, par. 643.)

The defendants submitted in support of their motion the affidavit of Michael Makofski, an employee of the Will County supervisor of assessments office, and a certified copy of the building permit issued by the City of Joliet, both of which demonstrate that the subject property did not have a previously existing Toys “R” Us facility on that property. Defendants also asked the circuit court to take judicial notice of Will County circuit court case Nos. 87 — TX—0001, 87 — TX— 1003, and 88 — TX—1017, which defendants argued demonstrate plaintiff had an existing commercial facility within the State of Illinois at a location other than the subject property.

In support of plaintiff’s response to the motion to dismiss, plaintiff attached two exhibits. The first exhibit was an affidavit from plaintiff’s assistant secretary, Steven Taplits, which stated plaintiff is constructing a 650,000-square-foot regional distribution facility in Joliet, which facility will replace and is a relocation of an existing distribution facility in Milwaukee, Wisconsin, and it is an expansion of a 357,000-square-foot distribution facility currently in operation in Mel-rose Park, Illinois. The second exhibit is a copy of a letter from the State’s Attorney of Will County to Adelman concerning the effect of his signing the agreement before plaintiff’s representative signed it, the potential liability, and the defensibility of defendants’ position.

In granting the defendants’ section 2 — 619 motion, the trial court found, in addition to the facts alleged, that plaintiff has an existing retail facility in Will County, Illinois. The court also found that Will County is not a home-rule unit of government and is authorized to abate property taxes by section 162 of the Revenue Act. Relying on an opinion by the Illinois Attorney General (1982 Ill. Att’y Gen. Op. 24), the trial court found that the locating of a new facility in a taxing district by a business already operating in Illinois does not fall within any of the three categories of section 162, which authorizes an abatement of property taxes. As a result, the trial court determined that the statute does not authorize Will County to extend real estate tax abatements to plaintiff and the actions of defendants in attempting to do so are null and void.

The only issue raised is whether section 162 of the Revenue Act authorizes a county board to grant a real estate tax abatement for the relocation and expansion of a corporation’s regional distribution center and, if not, whether the trial court properly dismissed the property owner’s declaratory judgment action asking it to declare as a nullity the resolution which repealed the earlier resolution granting the abatement. As a result, the parties’ arguments focus on the statutory construction placed on section 162 by the Attorney General. As noted in the Attorney General’s opinion, there are three categories for which the statute allows an abatement of real estate taxes. One of these categories involves an industrial or commercial firm which is “newly created” within Illinois during the immediately preceding year. Plaintiff is not such a newly created firm and does not argue that the newly created firm category applies to this case.

Another category to which the statute allows tax abatement is for the property of a commercial or industrial firm locating within the taxing district during the immediately preceding year from another State, territory, or country. However, the applicability of this category to the case at bar need not be discussed since we now hold the abatement was authorized under the third category.

The third category of the statute in question allows real estate tax abatement “for an expanded previously existing facility.” Plaintiff contends the trial court wrongly relied on the Attorney General’s opinion No. 82 — 010. Plaintiff argues the Attorney General improperly utilized rules of statutory construction to construe an unambiguous statute. Plaintiff further argues that the Attorney General, in defining this statutory category, impermissibly added a limiting phrase “within the taxing district” to this category so that the Attorney General’s definition allows abatement of taxes when a firm “expands a previously existing facility within the taxing district.” (1982 Ill. Att’y Gen. Op. at 26.) We agree this category of the statute is unambiguous.

Judicial construction of a statute is necessary only when the statute is unclear or ambiguous. (Bergeson v. Mullinix (1948), 399 Ill. 470, 78 N.E.2d 297; 34 Ill. L. & Prac. Statutes §101 (1958).) This rule is applied even though the language may be considered unwise or to cause a serious impairment to the statute as a whole. (In re Jankowski (1976), 38 Ill. App. 3d 95, 347 N.E.2d 474; 34 Ill. L. & Prac. Statutes §101 (1958).) Construction and interpretation of a statute is a question of law for the court and, regardless of the court’s opinion regarding the desirability of the results surrounding the operation of the statute, the court must construe the statute as it is and may not, under the guise of construction, supply omissions, remedy defects, annex new provisions, substitute different provisions, add exceptions, limitations, or conditions, or otherwise change the law so as to depart from the plain meaning of the language employed in the statute. (Belfield v. Coop (1956), 8 Ill. 2d 293, 134 N.E.2d 249; People v. McCoy (1975), 29 Ill. App. 3d 601, 332 N.E.2d 690, aff'd (1976), 63 Ill. 2d 40, 344 N.E.2d 436; 34 Ill. L. & Prac. Statutes §102 (1958).) In ascertaining the meaning of a disputed statute, the threshold task of the court is to examine the terms of the statute. People ex rel. Gibson v. Cannon (1976), 65 Ill. 2d 366, 357 N.E.2d 1180.

Plaintiff contends that since the statute authorizes a tax abatement “for an expanded previously existing facility,” and the trial court found plaintiff’s new Joliet facility was intended to be an “expansion” of plaintiff’s previously existing Melrose Park facility, then the statute should allow an abatement in the instant case. The key words to be defined are “expand” and “facility.”

While there are other meanings of the word “expand” which have no apparent application to the case at bar, for the purpose of this case, “expand” means to increase the extent, number, volume, or scope of, to enlarge, or to extend. (Federal Electric Co. v. Zoning Board of Appeals (1947), 398 Ill. 142, 75 N.E.2d 359; Webster’s Ninth New Collegiate Dictionary 436 (1990).) The word “facility” also has varying definitions, but the one which appears to have the most appropriate application to the case at bar is a thing, such as a hospital, “that is built, installed, or established to serve a particular purpose.” Webster’s Ninth New Collegiate Dictionary 444 (1990).

In this case there is no preexisting Toys “R” Us establishment functioning on the subject property or apparently on any property adjacent to the site. The trial court reasoned that since there was no Toys “R” Us in operation on the site, plaintiff’s project was not an expansion of a previously existing facility. With one exception, the ordinary meanings of the words employed in the statute support this conclusion by the trial court. The exception lies in that portion of the definition of the word “expand” which means “to increase in number.”

If expand means to increase in number, then a facility can be expanded by building a second facility. And, if this definition is utilized, why does the second facility have to be in the same taxing district as the Attorney General opinion requires? The discussion of Representatives McPike and Davis, quoted by the Attorney General, indicates that the bill’s sponsor in the Illinois House of Representatives was of the opinion that a corporation currently doing business in Cook County, Illinois, could not get a tax abatement by moving to Will County or La Salle County, Illinois. However, that discussion seems to pertain more to the category relating to firms relocating to Illinois from another State, territory, or country, and not to the third category regarding expanded facilities. The purpose of the statute was to facilitate attracting business enterprises to Illinois. However, competition between counties for business enterprises already operating facilities within the State was not intended to be encouraged. (1983 Att’y Gen. Op. 69, 72, quoting 82d Ill. Gen. Assem., House Proceedings, June 17, 1981, at 155 (statements of Representative Davis) (debates on Senate Bill 486).) This case does not involve competition between counties within Illinois under the facts presented to this court.

Obviously, the legislature was concerned about the possible loss of jobs in one county when companies relocate to other counties in Illinois. However, merely because an additional facility is built in Will County does not necessarily mean jobs would be lost in Cook County, for example, and because of the proximity, residents of Cook County may even benefit. While the legislature did not want Illinois counties to compete against each other when a company is already doing business in Illinois, the legislature did not expressly require that the expansion of the facility occur in the same taxing district wherein the preexisting facility was situated. Had the legislature intended such a result, the statute would have included such a requirement.

Plaintiff’s new Will County distribution center being an expansion of a preexisting facility in Melrose Park, Will County had authority to abate real estate taxes on plaintiff’s new Will County facility. For this reason, the order of the circuit court of Will County is reversed and the cause is remanded for further proceedings.

Reversed and remanded.

LUND, P.J., and GREEN, J., concur.


source: Caselaw Access Project

author: JUSTICE McCUSKEY

license: Public Domain

text:
      In re MARRIAGE OF CRAIG DOEHNER, Petitioner-Appellant, and NANCY DOEHNER JESSUP, n/k/a Nancy Cull, Respondent-Appellee.
    Third District
    No. 3-90-0873
    Opinion filed July 2, 1991.
    Modified opinion filed July 15, 1991.

      Dunn & Martin, Ltd., of Joliet (Claire M. Wilson, of counsel), for appellant.
    Leanne M. Lantz, of McSteen, Kozlowski & Polito, of Joliet, for appellee.
   JUSTICE McCUSKEY

delivered the opinion of the court:

Petitioner, Craig Doehner, appeals from an order of the trial court denying his motion to dismiss the petition to modify child custody filed by respondent, Nancy Cull. The issue presented is whether the trial court’s decision not to decline jurisdiction on the basis of forum non conveniens was an abuse of discretion. We conclude that it was.

The parties were married in 1975. The parties’ only child, Kathleen Doehner, was bom April 29, 1979, in Richmond, Virginia. Following the birth, the family moved to North Carolina. On November 1, 1983, a judgment of dissolution of marriage was entered in Buncombe County, North Carolina. Joint custody of Kathleen was awarded to the parties by the North Carolina court.

In February 1985 the parties independently moved to Du Page County, Illinois. By agreement, the judgment of dissolution entered in North Carolina was registered and enrolled in the circuit court of Du Page County. The parties also submitted a joint parenting agreement which the circuit court approved and incorporated into the judgment.

On November 2, 1988, an agreed order was entered in Du Page County which granted Craig leave to remove Kathleen from Illinois to North Carolina. On February 2, 1989, Kathleen moved from Illinois to reside with Craig in Greenville, North Carolina.

Nancy subsequently moved to Will County, Illinois, and established the judgment of dissolution of marriage in the circuit court of Will County. On February 7, 1990, Nancy filed a petition for modification of custody in Will County. Craig filed a motion to dismiss Nancy’s petition on March 6, 1990. Craig then filed a petition for modification of custody in North Carolina on May 4, 1990. Craig’s motion to dismiss Nancy’s petition was denied, and he appealed to this court. Craig’s petition for modification of custody is currently stayed in North Carolina pending the outcome of this appeal.

The primary issue on appeal involves an application of the inconvenient forum provisions of the Uniform Child Custody Jurisdiction Act (Act) (Ill. Rev. Stat. 1989, ch. 40, par. 2101 et seq.). The parties acknowledge that the circuit court of Will County retained subject matter jurisdiction in this matter pursuant to section 4(b) of the Act. (Ill. Rev. Stat. 1989, ch. 40, par. 2104(b).) Section 8 of the Act, however, allows a court to decline to exercise jurisdiction “if it finds that it is an inconvenient forum to make a custody determination under the circumstances of the case and that a court of another state is a more appropriate forum.” Ill. Rev. Stat. 1989, ch. 40, par. 2108(a).

Section 8 provides a list of factors the trial court should consider when determining whether a more convenient forum exists:

“(c) In determining if it is an inconvenient forum, the court shall consider if it is in the interest of the child that another state assume jurisdiction. For this purpose it may take into account the following factors, among others:
1. if another state is or recently was the child’s home state;
2. if another state has a closer connection with the child and his family or with the child and one or more of the contestants;
3. if substantial evidence concerning the child’s present or future care, protection, training, and personal relationships is more readily available in another state; [and]
***
5. if the exercise of jurisdiction by a court of this State would contravene any of the purposes stated in Section 2 of this Act [(Ill. Rev. Stat. 1989, ch. 40, par. 2102)].” (Ill. Rev. Stat. 1989, ch. 40, par. 2108(c).)

As the application of these criteria requires exercise of the trial court’s discretion, a decision not to decline jurisdiction will be affirmed absent an abuse of that discretion. (In re Marriage of Hilliard (1989), 178 Ill. App. 3d 620, 625, 533 N.E.2d 543, 546.) In the case before us, we believe the decision of the trial court to decline to concede jurisdiction to North Carolina was an abuse of discretion, and so we reverse.

The primary objective of the trial court is to determine which court can most capably act in the best interests of the child. (In re Marriage of Pavelcik (1985), 138 Ill. App. 3d 1060, 1064, 487 N.E.2d 33, 35.) A proper analysis of the four factors set forth above from section 8 of the Act leads to the conclusion that Illinois should decline to exercise its jurisdiction in this custody matter.

Applying the first factor, we find that North Carolina is Kathleen’s “home state.” “Home state” is defined in the Act as “the state in which the child immediately preceding the time involved lived with his parents [or] a parent *** for at least 6 consecutive months.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 40, par. 2103.04.) Although the “time involved” for purposes of applying the six-month rule is not explicitly set forth in the inconvenient forum provisions of the Act (Ill. Rev. Stat. 1989, ch. 40, par. 2108), we consider the February 1990 filing of Nancy’s petition to modify custody as the operative date in the statutory time frame. Since Kathleen had moved to North Carolina a full year earlier, we reason that her stay with Nancy in Illinois did not “immediately precede” the filing of the petition. Nor do we consider Illinois as having “recently” been Kathleen’s home State. Cf. In re Marriage of Miche (1985), 131 Ill. App. 3d 1029, 1031-32, 476 N.E.2d 774, 776 (in which the court construed the definition of “home state” only as it applied to section 4(aXlXü) of the Act concerning subject matter jurisdiction. Ill. Rev. Stat. 1989, ch. 40, par. 2104(aXlXü))-

Under the second factor, we believe Kathleen has a closer connection with North Carolina than with Illinois. The trial court heard testimony that Kathleen has made friends with other girls in her neighborhood and frequently attends parties and outings with these children. She attends church services with Craig and his new family, and participates in church-related functions with other children. She was named to the honor roll at school and has shown improvement in standardized testing since moving from Illinois. She has been involved in extracurricular activities, including gymnastics, basketball, swimming, and cheerleading. She also maintains a relationship with her maternal grandparents, who live in North Carolina. By contrast, Kathleen’s only continuing connections with Hlinois are her mother, periodic visits with acquaintances from her school days in Illinois, and occasional church attendance. It is apparent that she has many social activities and interests in North Carolina.

With the guiding principle of the child’s best interests, we find that North Carolina is the forum with the greatest access to relevant evidence concerning Kathleen’s present and future well-being. A more relevant determination as to Kathleen’s future care, protection, training and personal relationships can be made from information contained in the State with the most recent contact with the child. The statute directs the court to look at the child’s present and future circumstances, not merely at a previous period when Kathleen resided in Illinois. (In re Marriage of Slate (1989), 181 Ill. App. 3d 110, 115, 536 N.E.2d 894, 897.) North Carolina clearly has superior access to current information which would impact upon Kathleen’s well-being. Her minister and teachers are present in that State to comment on her religious and academic performance, and friends and acquaintances are available to testify concerning her personal relationships. Any records, history and paperwork in Illinois regarding Kathleen’s stay in Illinois can easily be transferred and fairly used in another forum.

Finally, the exercise of jurisdiction by an Illinois court in this case would contravene the goals and purposes of the Act, including those that (i) promote the rendering of a custody determination in the State which can best decide the case in the interest of the child; and (ii) assure that litigation takes place in the State into which the child and his family have the closest connection, and where significant evidence concerning the child’s care, protection, training and personal relationships is most readily available. Ill. Rev. Stat. 1989, ch. 40, pars. 2102(aX2), (aX3).

While no forum where a choice exists is likely to be equally convenient for all parties, it can at least be determined from the record that North Carolina is not an inconvenient forum for Nancy. Compared to Craig’s ability to travel to Illinois, Nancy’s part-time employment with a passenger airline allows her a more flexible and less expensive mode of transportation to North Carolina. Also, Kathleen will be less inconvenienced by travel if this matter is litigated in her home State. In any event, the Act is written to protect the child’s best interests; any hardships faced by the parents must give way to what is in the best interests of the child. Schiller, Uniform Child Custody Jurisdiction in Light of Siegel and New Legislation, 65 Chi. B. Rec. 72, 75 (1983).

Based upon our review of the Act and all the evidence, we find the trial court’s decision not to decline jurisdiction in favor of North Carolina was against the manifest weight of the evidence. In light of our ruling reversing the trial court, we decline to address Craig’s additional argument regarding the sufficiency as a pleading of Nancy’s petition for modification of custody.

The judgment of the trial court is reversed.

Reversed.

SLATER and GORMAN, JJ., concur.


author: JUSTICE BARRY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GLEN ROGERS, Defendant-Appellant.
    Third District
    No. 3—90—0706
    Opinion filed July 2, 1991.
    Spencer Lee Daniels, of Peoria, for appellant.
    Kevin W. Lyons, State’s Attorney, of Peoria (Judith Z. Kelly and John X. Breslin, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE BARRY

delivered the opinion of the court:

On October 22, 1984, the defendant, Glen Rogers, admitted the allegations of the State’s petition to have him declared a sexually dangerous person (Ill. Rev. Stat. 1989, ch. 38, par. 105 — 3). The trial court then found that he was a sexually dangerous person and committed him to the Department of Corrections. On April 21, 1988, the court ordered the defendant released, conditioned upon his abstinence from drugs and alcohol, regular testing for substance abuse, obtaining full-time employment, residing in a residence approved by parole services, attending out-patient therapy, and reporting to a parole supervisor. On March 27, 1990, the defendant petitioned the court to unconditionally release him. Following a hearing, the court denied the petition, leaving the conditions in place. The defendant appeals, arguing that the court erred in failing to terminate the conditions of his release.

The record shows that when the trial court originally imposed the conditions upon the defendant’s release, it found that he appeared to be no longer dangerous. However, because the nature of institutional care made it impossible to determine with certainty that he had fully recovered, it imposed conditions it felt would protect the public.

At the hearing on the defendant’s petition to terminate the conditions of his release, psychiatrist Richard Grant’s report was admitted into evidence. Dr. Grant stated that he had interviewed the defendant eight times over the past year. The doctor noted the defendant’s history from 1973 through 1984 of sexually abusing minors, including his daughter and two stepdaughters. He further noted the defendant’s violent temper and past marital instability. It was during such times of interpersonal conflict with his wives that all of the incestuous episodes had occurred.

Dr. Grant stated that at the time of the report the 51-year-old defendant was married to a 21-year-old woman. Although the woman was pregnant, they planned to put the child up for adoption when it was bom. Dr. Grant noted that though the defendant still had a significant temper, he no longer engaged in physical fights. In fact, the defendant had recently moved away from an apartment to avoid a provocative neighbor. The doctor also indicated it was a positive sign that the defendant recognized that due to the age difference he probably would not have a lasting relationship with his new wife. Dr. Grant concluded that the defendant’s statements and history indicated “he could conceivably not re-offend in the manner he has previously.”

Dr. Grant also testified at the hearing. He stated that he believed the defendant was no longer a danger to society. In this regard, he noted that the defendant had considerably improved his temper control, was no longer abusing substances, and was engaging in stable interpersonal relationships. The doctor found it significant that the defendant had attempted to apologize to his victims. On cross-examination, Dr. Grant stated that the defendant still suffered from residual evidences of a personality disorder.

The defendant’s testimony indicated that he was complying with the conditions of his release. He stated that the child born to him and his wife had been adopted and there were no other children living with them. The defendant opined that he was no longer a danger to society.

Based upon its observation of the defendant, Dr. Grant’s report, and the testimony at the hearing, Judge McCuskey found that he could not make a determination at that time that the defendant was fully recovered and no longer needed supervision. In so finding, the judge indicated his concern that the defendant’s current good behavior might merely be the result of having little stress in his present marriage. Judge McCuskey also noted that a relatively short period of time had passed since the defendant’s release. Under the circumstances, he left the conditions in place.

We note that when a defendant is conditionally released, it is his burden to show by a preponderance of the evidence that he is no longer sexually dangerous and that the conditions of his release should therefore be terminated. (People v. Cooper (1989), 132 Ill. 2d 347, 547 N.E.2d 449; People v. Hannan (1989), 184 Ill. App. 3d 937, 540 N.E.2d 1064.) Although treatment of the defendant is one purpose of the Sexually Dangerous Persons Act, the primary purpose is to protect the public. See People v. DeMont (1986), 146 Ill. App. 3d 437, 496 N.E.2d 1215.

The instant defendant’s offenses occurred over a 12-year period. Further, Dr. Grant stated in his report that all of the episodes occurred during severe interpersonal conflicts between the defendant and his wives. The trial court, after viewing the defendant and examining the evidence, found that his present life was fraught with uncertainties which could push him back into his old ways and that too little time had passed to determine whether he had truly gained control of his sexual deviances. The court therefore continued the defendant’s conditional release. Under the circumstances of this case, we find no abuse of discretion by the trial court.

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

Affirmed.

STOUDER, P.J., and GORMAN, J., concur.


text:
    MARGARET GORMAN LAKE, Plaintiff-Appellant, v. WENDY K. BERTRAND, Defendant-Appellee.
    Third District
    No. 3—90—0641
    Opinion filed July 2, 1991.
    Adriene W. Albrecht, of Sacks & Albrecht, of Kankakee, for appellant.
    Daniel P. Slayden, of Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Joliet, for appellee.
   JUSTICE BARRY

delivered the opinion of the court:

Plaintiff Margaret Gorman Lake brought suit for personal injuries resulting from an automobile collision with defendant Wendy K. Bertrand. The cause was tried by a jury which returned a verdict for defendant. The trial court entered judgment accordingly and subsequently denied plaintiff’s post-trial motion for judgment notwithstanding the verdict. Plaintiff brought a timely appeal. We affirm.

The facts are largely undisputed. Plaintiff was returning to her Manteno, Illinois, home from a shopping trip in Kankakee around three o’clock p.m. on October 19, 1986. She was driving north along Convent Road, a four-lane highway, in the left-hand lane and was about a block past the intersection with State Route 102 when she noticed that the traffic ahead of her was stopped. Plaintiff pulled to a stop, and a few moments later was rear-ended by defendant’s vehicle.

According to defendant, she was proceeding north along Convent Road in the left-hand lane just past the intersection with Route 102 where the road makes a curve and driving about 25 miles per hour, when a red Fiero switched into her lane in front of her from the right. The Fiero then quickly switched back into the right-hand lane. At that point, defendant first saw plaintiff’s station wagon about 25 feet ahead. Defendant applied the brakes, skidded, and collided with the rear of plaintiff’s car. Plaintiff and defendant had a brief conversation and checked on damage to their vehicles, exchanged insurance information and made arrangements to report the accident to the police.

The parties’ testimony relative to their conversation immediately following the collision was in conflict. According to plaintiff, defendant left her car first and came to plaintiff. She commented on the fact that plaintiff had been wearing her seat belt and asked if plaintiff was hurt. Plaintiff said she didn’t think so and that she was sorry the accident had happened because she had children defendant’s age and knew how upsetting such an incident could be.

According to defendant, it was plaintiff who left her car first and came over to defendant to inquire if she was all right. Defendant testified that plaintiff told her not to worry about it, it was not defendant’s fault. They both stated that they were okay, just shaken up. Together they checked for damage to the vehicles. Defendant said they could see no damage to plaintiff’s car, but that defendant’s car had a broken headlight and a small dent to the right front corner. Defendant further testified that she pleaded guilty to a traffic citation so that she could receive a sentence of court supervision and the ticket would not go on her record.

With regard to injuries, plaintiff testified that her back began to bother her the day after the accident. She initially took aspirin and pain relievers, but eventually, on October 28, 1986, arranged to see a chiropractor. She temporarily discontinued chiropractic treatments during a visit to her son in Arizona. Plaintiff believed that the climate and her use of a hot tub there gave her relief. After she returned to Illinois, plaintiff had to undergo a hysterectomy. The back pain worsened after that. Then, in 1987, plaintiff began acupuncture treatments. Plaintiff testified that they gave relief for several weeks at a time, but were both expensive and painful when given. Plaintiff discontinued chiropractic treatments in March 1988. In December 1988, plaintiff discontinued the acupuncture treatments. Thereafter, and at the time of trial, plaintiff used pain medications like Flexeril and Naprosyn prescribed by her internist, but testified that she still suffers from back pain.

Drs. Stam, Lee, and Alford, plaintiff’s chiropractor, acupuncturist and internist, respectively, corroborated plaintiff’s testimony respecting their treatment of plaintiff for back pain following the accident. Dr. Lee testified that he had taken an X ray of plaintiff’s spine which disclosed some osteoporosis with minor degenerative change. All of the doctors agreed, however, that back pain is a primarily subjective complaint. Plaintiff introduced into evidence Dr. Siam’s bill for chiropractic services showing an unpaid balance of $357 and testimony that $296 of Dr. Lee’s charges had not been paid.

A photograph of the back of plaintiff’s car taken after the accident and introduced into evidence by defendant does not disclose any damage, although plaintiff testified that a seal under the rear door was cracked and the bumper was bent as a result of the collision. These damages, plaintiff explained, were not visible on the exhibit because of the angle from which the photograph had been shot.

Defendant defended this cause on theories that either she was not negligent or that plaintiff did not sustain any injuries. By its verdict, the jury found in defendant’s favor on either or both theories.

The parties agree that the standard of review for this appeal, is as stated in Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504, 513-14:

“[V]erdiets ought to be directed and judgments n.o.v. entered only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.”

In this case, despite the plaintiff’s consistent testimony of back pain, the evidence viewed in its aspects most favorable to defendant does not so overwhelmingly favor plaintiff that the jury’s verdict for defendant could never stand. Of particular damage to plaintiff’s case was the testimony that plaintiff did not complain of any injury at the scene of the accident and the photograph of her car which failed to demonstrate any damage. Also of significance is the fact that plaintiff did not seek medical attention for more than a week after the accident. Most importantly, none of plaintiff’s doctors could testify from his objective observations that plaintiff’s back pain was caused by trauma from the October 19, 1986, accident. Other testimony indicated that plaintiff’s pain may have resulted from causes unrelated to the accident. Plaintiff testified that she has suffered from arthritis since before the accident and that a hysterectomy was performed several months after the accident. After that operation, the pain in plaintiff’s lower back worsened. Finally, there was medical testimony that plaintiff suffered from osteoporosis, a naturally occurring degenerative process, in her spine. Based on this evidence, and given the subjective nature of the claimed injury, the jury could have determined that plaintiff’s problem with her back was merely coincidental with the accident and not a consequence of it.

Because one permissible inference from the evidence — i.e., that plaintiff was not injured in the accident — supports the jury’s verdict against plaintiff, we need not address plaintiff’s contention that defendant’s alternate defense theory of nonnegligence was contrary to the evidence. (See Illinois Racing Board v. Hammond (1977), 56 Ill. App. 3d 609, 611, 371 N.E.2d 1189, 1191 (In context of pretrial discovery order denying petition to enforce subpoenas, the appellate court noted that “on review, the [court’s] order may be affirmed on any sound basis found in the record, regardless of what led the trial court to its conclusion”).) We conclude that the trial court did not err in denying plaintiff’s post-trial motion for judgment notwithstanding the verdict.

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

Affirmed.

STOUDER, P.J., and McCUSKEY, J., concur.


text:
    AMY KESSLING, a Minor, by her Mother and Next Friend, Mary Kessling, Plaintiff-Appellant, v. UNITED STATES CHEERLEADERS ASSOCIATION, f/k/a U.S.C.A. Camps All American, Inc., Defendant-Appellee.
    Third District
    No. 3-90-0347
    Opinion filed July 2, 1991.
    A. Denison Weaver, of A. Denison Weaver, Ltd., of Chicago, for appellant.
    Robert Marc Chemers, of Pretzel & Stouffer, Chartered, of Chicago, for appellee.
   JUSTICE BARRY

delivered the opinion of the court:

Plaintiff Amy Kessling, a minor, brought suit against the defendant United States Cheerleaders Association claiming injuries to her right knee as a result of an acrobatic cheerleading maneuver attempted at defendant’s summer training camp at Northern Illinois University (De Kalb) on July 8, 1987. The matter proceeded through discovery and was set for an April 2, 1990, trial and status hearing on the prior Friday, March 30. On March 30, plaintiff’s counsel, A. Denison Weaver, Ltd., was engaged in a trial in Cook County. Weaver arranged for local counsel, Kenneth Carlson, to appear on his behalf to explain his absence to the court. The court refused to hear attorney Carlson because “he has no authority to make [an] oral motion” and dismissed the suit for want of prosecution.

On April 11, plaintiff’s counsel moved to vacate the order of dismissal. In the attached affidavit, counsel recited the facts concerning his firm’s conflicting trial engagement and their attempt to so notify the court through local counsel. Attorney Weaver also stated that he had learned from defendant’s counsel that defendant’s counsel was not present when the court dismissed the cause, and that defendant’s counsel had requested that the cause be reinstated when he arrived five minutes later, but that the court refused to consider the request. Plaintiff’s motion to vacate was denied, and plaintiff filed timely notice of appeal.

The issue before us is whether the trial court abused its discretion in denying plaintiff’s motion to vacate. We are guided by section 2 — 1301(e) of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1301(e)), which states:

“The court may in its discretion, before final order or judgment, set aside any default, and may on motion filed within 30 days after entry thereof set aside any final order or judgment upon any terms and conditions that shall be reasonable.”

Although an abuse of discretion standard applies on review, it has also been held that “[a] ruling on a motion to vacate must be reversed if the movant’s right to fundamental justice is violated.” Day v. Curtin (1989), 192 Ill. App. 3d 251, 254, 548 N.E.2d 670, 673, citing Zanzig v. H.P.M. Corp. (1985), 134 Ill. App. 3d 617, 480 N.E.2d 1204, and Chandler v. Jet Air Freight, Inc. (1977), 54 Ill. App. 3d 1005, 370 N.E.2d 95.

In this case, defendant concedes that the facts relating to the dismissal and motion to vacate are undisputed. Defendant cites as support for the trial court’s ruling a local rule requiring that motions for a continuance must be filed pursuant to supreme court rules and supported by affidavit (Rule 5.02, Rules of the Circuit Court of the 12th Judicial Circuit). The court’s interest in controlling its docket and preventing undue delays in disposing of pending cases, the argument continues, is a legitimate ground for rejecting plaintiff’s motion to vacate a dismissal for want of prosecution when no written motion for a continuance is filed.

It is apparent to us, however, that the court’s dismissal in this case did not result from any request for a continuance. From the record on appeal, it is clear that the court dismissed the cause on the court’s own motion upon learning only that plaintiff’s counsel had asked attorney Carlson to appear on behalf of Weaver’s firm. At the court’s request, the circuit court clerk prepared a letter to plaintiff’s counsel, the substance of which follows:

“On March 30, 1990, Status Call, The Honorable Judge Rodney B. Lechwar entered in the above captioned cause:
‘Case called for status. Mr. Carlson appears and represents to the Court that he is not a party to this matter but was asked to appear. Being that he has no authority to make oral motion case is hereby dismissed for want of prosecution. Written order waived. Copy of minutes to all parties of record.’ ”

In the affidavit in support of the motion to vacate, counsel alludes to the conflicting trial engagement, but it does not state whether both Weaver and his associate, Jeffery C. Amier, would be engaged in the Cook County trial on April 2. Thus, it is pure speculation at this point that plaintiff would have sought a continuance of the trial of this cause. Moreover, defendant neither objected to nor appeared for the April 11 hearing on plaintiff’s motion to vacate. We note that counsel for both parties are Chicago firms. However, neither party has complained of any hardship for counsel’s inaccessibility. In fact, there is no basis upon which to find that defendant would be prejudiced by granting plaintiff’s motion.

In the absence of any factual dispute, we find that the sole basis for the court’s judgment of dismissal was the absence of plaintiff’s counsel of record at the March 30 status call. Under the circumstances, given attorney Carlson’s “appearance” at attorney Weaver’s request, Weaver’s reasonable explanation for his failure to appear personally at the status call and the lack of any showing of prejudice to defendant, we find that plaintiff’s right to fundamental justice was violated by the court’s denial of her motion to vacate the dismissal. Accordingly, we hold that the circuit court abused its discretion in denying plaintiff’s motion to vacate. We remand with directions to vacate the judgment of dismissal and to reinstate the cause.

The judgment of the circuit court is reversed.

Reversed; cause remanded with directions.

McCUSKEY and GORMAN, JJ., concur.


author: JUSTICE HAASE

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES D. COLE, SR., et al., Defendants-Appellants.
    Third District
    No. 3-90-0274
    Opinion filed July 5, 1991.

      Harry Williams and Parker & Halliday, both of Peoria, Law Offices of Patrick A. Tuite, Ltd., of Chicago, and James R. Wyrsch, of Kansas City, Missouri (Patrick Tuite and Richard E. Halliday, of counsel), for appellants.
    Kevin W. Lyons, State’s Attorney, of Peoria (Chris Fredericksen, Assistant State’s Attorney, of counsel), for the People.
   JUSTICE HAASE

delivered the opinion of the court:

The defendants, James D. Cole, Sr., and James D. Cole, Jr., appeal from the trial court’s dismissal of their petition to set aside their convictions for solicitation (to commit murder). We affirm.

In 1980, the defendants were convicted by a jury of solicitation (to commit murder). The indictment charged that the defendants encouraged William Haley, a special agent for the Illinois Department of Law Enforcement, to murder attorney Robert H. Jones. Prior to the original trial, the defendants filed a discovery motion requesting that the State indicate whether there had been any electronic surveillance of the defendants’ conversations. The State in its answer indicated that the defendants’ conversations had been listened to on extension phones. The State, however, did not indicate whether any of those conversations had been recorded. At trial, Haley testified that none of the conversations that he or Elbert Martin (another State’s witness) had had with the defendants had been recorded.

The trial court sentenced the defendants to serve five years in prison. Thereafter, the defendants’ convictions were affirmed on appeal. People v. Cole (1982), 91 Ill. 2d 172, 435 N.E.2d 490.

On August 31, 1989, the defendants filed a petition pursuant to section 2 — 1401 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1401), to set aside their convictions. The defendants alleged, inter alia, that tape recordings of their conversations had been made and that the State violated their due process rights in not disclosing them. They also alleged that Haley’s testimony regarding the existence of the tapes was peijured.

In support of their petition, the defendants attached the affidavits of a Peoria County sheriff’s department jailer and two private investigators. The jailer’s affidavit stated that he had a “strong suspicion” that tapes of conversations between the defendants and Haley existed. The private investigators’ affidavits stated that Haley’s supervisor, Joe Hobbick, and Elbert Martin had told the investigators that the defendants’ conversations with Haley and Martin had been recorded. The affidavits also stated that Martin’s attorney told the investigators that he had read the transcript of taped conversations between the defendants and the “hit man.”

On August 31,1989, the defendants filed a motion to compel discovery. The trial court granted the motion and entered an order requiring the State to respond within 28 days. The order also required the State to request the Department of Law Enforcement to file an affidavit with the court showing that a response to discovery was completed. The State responded by filing an affidavit that discovery had been completed. The State also sent a letter to the defendants’ counsel informing him that it had asked the State Police to file an affidavit stating that discovery was completed. The State Police apparently chose not to respond to the request.

On January 17, 1990, the State filed a motion to dismiss the defendants’ petition. Judge Michael McCuskey allowed the State’s motion and dismissed the petition, finding that the affiant’s statements were hearsay and not based on firsthand knowledge of the facts.

On appeal the defendants first argue that the trial court erred in dismissing their petition.

We note that section 2 — 1401(b) of the Code provides that a petition seeking relief from a final judgment must be supported by affidavit or other appropriate showing as to matters not of record. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1401(b).) A petition filed under section 2 — 1401 is tantamount to the filing of a new civil action. Thus, the petition is subject to a motion to dismiss if it fails to state sufficient facts to warrant relief. (Ostendorf v. International Harvester Co. (1982), 89 Ill. 2d 273, 433 N.E.2d 253.) Furthermore, the general rule is that a petition supported by an affidavit based only on hearsay or mere conclusions is insufficient to warrant relief under section 2— 1401. People v. Sanchez (1986), 115 Ill. 2d 238, 503 N.E.2d 277.

Here, the investigators’ affidavits were clearly hearsay, and the jailer’s statement that he had a “strong suspicion” was a mere conelusion unsupported by the facts. The defendants nevertheless argue that an exception to the general rule against hearsay affidavits is applicable. In support of their position, they rely on People v. Sanchez (1986), 115 Ill. 2d 238, 503 N.E.2d 277, and Supreme Court Rule 191(b) (134 Ill. 2d R. 191(b)).

In Sanchez, the defendant supported his petition with an investigator’s hearsay affidavit. The affidavit specifically stated that material facts are known to Oscar Cartegna, but that an affidavit to that effect cannot be procured due to Cartegna’s invocation of the fifth amendment. The supreme court held that the allegation that the witness would invoke the fifth amendment was sufficient to warrant an evidentiary hearing. In so holding, the court found that the exception to the general rule against hearsay affidavits is applicable only in situations where material facts which ought to appear in the affidavit are known solely to persons whose affidavit the affiant is unable to procure by reason of hostility or otherwise.

We find that Sanchez is clearly distinguishable from the instant case. Here, the defendants failed to offer any reason for the unavailability of the actual declarants. Unlike Sanchez, the defendants did not make any allegations in their petition that the affidavits of persons possessing firsthand knowledge of the facts could not be obtained because of hostility or any other reason. Moreover, the record does not indicate that any of the witnesses purported to have firsthand knowledge were hostile or would invoke the fifth amendment. Accordingly, we find that the defendants’ reliance on the exception announced in Sanchez is misplaced.

The defendants also rely on People v. Alfano (1981), 95 Ill. App. 3d 1026, 420 N.E.2d 1114. Alfano, however, does not support the defendants’ position. The Alfano court held only that a verified Williamson County information charging the State’s expert witness with perjury constituted an “other appropriate showing as to matters not of record” which provided the court with an adequate factual basis upon which to conduct an evidentiary hearing on the defendant’s post-conviction petition. Alfano does not change the general rule noted by the supreme court in Sanchez that hearsay affidavits are insufficient.

The defendants next argue that the trial court violated their due process rights to confront and cross-examine witnesses by dismissing their petition without an evidentiary hearing.

It is well settled that a petition under section 2 — 1401 of the Code is tantamount to the filing of a new civil action. If the petition fails to state sufficient facts to warrant relief, it is subject to a motion to dismiss. Here, the defendants’ petition, which was supported only by hearsay affidavits and mere conclusions, did not state sufficient facts so as to require an evidentiary hearing.

Chambers v. Mississippi (1973), 410 U.S. 284, 35 L. Ed. 2d 297, 93 S. Ct. 1038, cited by the defendants for the proposition that their rights to confront and cross-examine witnesses were denied, is distinguishable on its facts. Chambers did not involve a post-conviction proceeding. Accordingly, we find that the defendants’ due process rights were not violated.

Next, the defendants contend that they made a sufficient showing that a Brady violation occurred so as to require an evidentiary hearing on their petition.

We again note that a petition supported by an affidavit based solely on hearsay is insufficient to warrant relief. The defendants did not sufficiently support their allegation that a Brady violation occurred and, therefore, a hearing on the petition was not required.

The defendants argue that the Department of Law Enforcement’s failure to indicate whether discovery was completed violated a court order.

We disagree. The State correctly points out that the Department was not ordered to comply with the discovery request filed by the defendants. Rather, the assistant State’s Attorney was ordered to ask the Department to file an affidavit stating that discovery was complete.

The defendants next argue that they set forth sufficient facts to demonstrate a possibility of recovery. Thus, they contend, they were entitled to an evidentiary hearing under Wheeler v. Caterpillar Tractor Co. (1984), 123 Ill. App. 3d 539, 462 N.E.2d 1262.

We find the defendants’ argument meritless. To withstand a motion to dismiss, a complaint must allege facts sufficiently setting forth the essential elements of the cause of action. If the facts alleged do not demonstrate any possibility of recovery, the order of dismissal will be affirmed. (Wheeler v. Caterpillar Tractor Co. (1984), 123 Ill. App. 3d 539, 462 N.E.2d 1262.) Here, the defendants did not meet the requirement of setting forth facts demonstrating a possibility of recovery. It was incumbent upon the defendants to support their petition with firsthand factual affidavits illustrating the perjury and not with mere hearsay affidavits, which cannot be used to meet the requirements of Wheeler. See People v. Jayne (1977), 52 Ill. App. 3d 990, 368 N.E.2d 422.

Lastly, the defendants argue that the statements in the investigators’ affidavits attached to their petition fell within an exception to the hearsay rule. The defendants contend that the statements were admissible as declarations against penal interest and prior inconsistent statements.

The defendants’ argument fails. A declaration against penal interest may be admissible as an exception to the hearsay rule if the four criteria set forth in People v. Tate (1981), 87 Ill. 2d 134, 429 N.E.2d 470, are met. In the present case, the statements fail to meet at least three of the Tate requirements. The statements occurred nine years after the crime, there was no opportunity for cross-examination, and most importantly, the statements were not incriminating to any of the alleged declarants.

Regarding the prior inconsistent statements exception, we note that the record does not show that the hearsay statements offered in the affidavits were prior inconsistent statements. We also note that a prior inconsistent statement is admissible only for the purpose of impeaching the credibility of a witness. Here, the statements were not offered to impeach the credibility of a witness. Accordingly, the statements did not fall within the exception.

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

Affirmed.

BARRY and SLATER, JJ., concur.


text:
      In re MARRIAGE OF EVELYN C. MARTHENS, Petitioner-Appellant, and WILLIAM R. MARTHENS, Respondent-Appellee.
    Third District
    No. 3—90—0626
    Opinion filed July 5, 1991.

      William G. Schick, of Rock Island, for appellant.
    Michael J. Weng, of Lousberg, Kopp & Bonnett, P.C., of Rock Island (Peter H. Lousberg, of counsel), for appellee.
   JUSTICE HAASE

delivered the opinion of the court:

The petitioner, Evelyn C. Marthens, appeals from the trial court’s judgment dissolving her marriage to the respondent, William R. Marthens. Specifically, Evelyn contends that the trial court abused its discretion with respect to the amount and duration of maintenance, the division of the marital property, and the refusal to award attorney fees.

The record shows that the parties were married on September 14, 1968. On September 18, 1987, the trial court entered an order finding grounds for the dissolution of the marriage. On January 12, 1989, the court awarded custody of the parties’ four minor children to Evelyn. On December 28, 1989, the court entered an order dissolving the parties’ marriage and resolving issues regarding the division of marital property, maintenance, child support, and attorney fees.

Evelyn testified that at the time of trial she was 47 years old. She had almost 40 hours of college credit, but did not plan to obtain a college degree. For most of the 21-year marriage, she had been a homemaker, although she did secretarial work for William’s company from 1980 to 1985. In 1985, she started an international trade show business, which she operated in her home. The business required her to travel in the United States and to Europe. In 1987, the business showed a profit of $6,097. Evelyn estimated that her 1988 income would be about the same.

Evelyn further testified that she often received money from her parents. She claimed that money she received before 1985 from her parents was a gift, but thereafter her parents loaned her $73,500. There was no written agreement that Evelyn repay the money, and she used it for household expenses, vacations, and private schooling for the children. Regarding her health, Evelyn stated that she suffered from bronchiectasis, which required surgery to remove the lower and middle lobes of her right lung. According to Evelyn, a doctor advised her to have one of her lungs removed. Consequently, she was concerned about obtaining health insurance.

William testified that he was 49 years old at the time of trial. He began working for his father’s business, the Marthens Company, in 1964. Over the years, his father gave him shares of stock in the company. By 1969, William owned a majority of the stock in the company. In 1973, he became president of the company. Between 1973 and 1987, the stock book value of the company increased from $20.52 to $103.26 per share. William’s annual net income was $98,931.

Based on the foregoing evidence, the trial court dissolved the parties’ marriage and entered an order providing, inter alia, that: (1) William pay Evelyn $3,300 per month in child support; (2) William pay Evelyn $700 per month in maintenance for 12 months, beginning January 1, 1990 (the court retained jurisdiction to review the further extension of maintenance); (3) William provide health insurance for the children and pay all their uninsured medical expenses; (4) William maintain health insurance for Evelyn for three years on the group policy of the Marthens Company; and (5) William be appointed trustee of $52,000 in certain accounts to administer it for the children’s education.

The court further ordered that the marital property, which had a total value of $744,594.98, be divided as follows:

William Value
(1) Time-share interest in Colorado condominium $15,000.00
(2) Timber Knoll Apartment Complex -119,963.05 (liability)
(3) Half of Executive Life Insurance Policy 30,832.50
(4) Northwestern Mutual Life Insurance Policy 3,849.00
(5) General American Life Insurance Policy 2,015.00
(6) Merrill Lynch IRA 7,421.78
(7) 60% of the Merrill Lynch IRA Combined Pension Accounts 205,327.56
(8) Reimbursement to Marital Estate from First Midwest Bank IRA 194,839.54
(9) Private school tuition refund 6,000.00
(10) Half of all household goods, furnishings, clothing, jewelry 16,703.00
(H) Economy Fire and Casualty check 1,029.00
(12) Silver coin collection 11,900.00
(13) Merrill Lynch Cash Management Account 13,615.00
(14) Bank accounts 106.00
(15) Country club membership 1,730.00
TOTAL $390,405.33
(52.4% of total marital assets)
Evelyn Value
(D Marital home equity $80,000.00
(2) Half of Executive Life Insurance Policy 30,832.50
(3) Northwestern Mutual Life Insurance Policy 6,409.00
(4) General American Life Insurance Policy 2,015.00
(5) IRA account 9,250.00
(6) 40% of Merrill Lynch IRA Combined Pension Accounts 136,885.04
(7) Two automobiles 9,078.00
(8) Additional tax refund for filing amended joint tax return 11,950.00
(9) Half of all household goods, furnishings, clothing, jewelry 16,703.00
(10) West German bank account 9,934.92
(H) First Midwest Bank checking account 2,006.97
(12) Northwestern Bank checking account 10,745.00
(13) E.F. Hutton account 7,084.00
(14) Merrill Lynch account 21,197.00
TOTAL $354,189.65
(47.6% of total marital assets)

The court further awarded the parties their nonmarital property as follows:

William Value
(1) 6,200 shares of Marthens Company stock $669,600.00
(2) First Midwest Bank IRA 104,913.60
(3) Aetna Insurance Policy 483.00
(4) Sun Life Insurance Policy 1,500.00
(5) Other items of personal property 24,277.50
TOTAL $800,774.10
Evelyn Value
(1) 600 shares of Marthens Company stock 64,800.00
(2) Swiss bank account 21,736.00
(3) Personal property (furniture) 39,200.00
(4) Wedding and engagement rings 1,500.00
TOTAL $127,236.00

Evelyn’s first argument on appeal is that the trial court abused its discretion regarding the amount and duration of the maintenance award.

Section 504(b) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1989, ch. 40, par. 504(b)) provides that a court is to award maintenance in such amounts and for such periods of time as it deems just, after consideration of the following additional factors: the time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment; the standard of living established during the marriage; the duration of the marriage; the age and the physical and emotional condition of both parties; and the ability of the spouse from whom maintenance is sought to meet his or her needs while meeting those of the spouse seeking maintenance. A trial court’s decision regarding the amount of a maintenance award will not be overturned unless no reasonable person would take the view adopted by the trial court. In re Marriage of Heller (1987), 153 Ill. App. 3d 224, 505 N.E.2d 1294.

A spouse applying for maintenance has an affirmative duty to seek gainful employment. (In re Marriage of Heller (1987), 153 Ill. App. 3d 224, 505 N.E.2d 1294.) This goal, however, must be balanced against a realistic appraisal of the likelihood that the spouse will be able to support herself in some reasonable approximation of the standard of living established during the marriage. (In re Marriage of Carney (1984), 122 Ill. App. 3d 705, 462 N.E.2d 596.) Maintenance for a limited period is appropriate where the spouse is employable at an income not overly disproportionate to the standard of living established during the marriage. Conversely, where the spouse is not employable or is employable only at a lower income, as compared to her previous standard of living, then permanent maintenance would be appropriate. (In re Marriage of Heller (1987), 153 Ill. App. 3d 224, 505 N.E.2d 1294.) Limited maintenance awards have been upheld in cases in which the award was intended to maintain a party for a period during which such party’s income-producing potential might be fully realized. (In re Marriage of Hart (1989), 181 Ill. App. 3d 1066, 537 N.E.2d 829.) The decision to grant limited maintenance will not be disturbed on review unless it amounts to an abuse of discretion or it is against the manifest weight of the evidence. In re Marriage of Wilder (1983), 122 Ill. App. 3d 338, 461 N.E.2d 447.

We find no abuse of discretion regarding the amount of the maintenance award. However, we find that even though the trial court properly retained jurisdiction to review the case, it nevertheless abused its discretion in making the award reviewable after only one year. The court’s maintenance award stated that “[William] shall pay as rehabilitative maintenance the sum of $700 per month on the 1st day of each month for 12 months, starting January 1, 1990. Jurisdiction is retained to review the issue of further extension of rehabilitative maintenance.” Under this order, Evelyn’s maintenance payments ceased on January 1, 1991.

This left Evelyn with three minor children, no college education, no special skills, and a yearly net income from her import business of only $6,000. We also note that even though Evelyn had an obligation to become self-sufficient, her ability to earn significant income in the near future was very speculative. On the other hand, William had substantial earning power and assets. Given the disparity between the parties’ relative earning powers and assets, we find that a better approach would have been to make the award reviewable at the end of five years.

Accordingly, we find that William’s maintenance obligation of $700 per month should be extended from January 1, 1991, through January 1, 1995. The trial court will retain jurisdiction so that it can review the maintenance award on or about January 1, 1995, to determine whether William’s maintenance obligation should continue. At that point, the court can reassess Evelyn’s ability to become financially independent in the future. We note that since the court has retained jurisdiction and is to determine whether maintenance should continue, no motion to modify the award is required by either party at that time and either party may make any argument appropriate on the issue of raising, lowering, continuing and/or terminating the maintenance award.

Because it is apparent from the record that Evelyn’s maintenance payments ceased on January 1, 1991, we order William to pay Evelyn a lump sum for the maintenance that accrued after January 1, 1991, through the time that this decision becomes final. That payment should be made within 30 days after this decision becomes final.

Additionally, we note that the trial court’s order provided that William provide health insurance for Evelyn for only three years on the group policy of the Marthens company. Due to Evelyn’s poor medical history, she may have some difficulty procuring health insurance. If she is unable to do so, the trial court should take the matter into consideration in any future review. We also find that Evelyn should have the option to petition the trial court for a review of her circumstances earlier than the five-year review date if it is necessary because of her inability to obtain reasonably priced health insurance.

Next, Evelyn argues that the court erred in its distribution of the marital property. In that regard, she initially argues that she was entitled to a portion of William’s 6,200 shares of Marthens Company stock, which was nonmarital property, because the company indirectly benefited from her homemaking services.

We find Evelyn’s argument meritless. The 6,200 shares of Marthens Company stock were clearly WiUiam’s nonmarital property. Section 503(cX2) of the Act provides that if a spouse makes a contribution to nonmarital property through her personal effort, she shall be reimbursed from the estate receiving the contribution notwithstanding any transmutation, provided that the effort is significant and results in substantial appreciation of the nonmarital property. (Ill. Rev. Stat. 1987, ch. 40, par. 503(cX2).) We find that the “personal effort” contemplated by the statute must relate to the nonmarital property. Evelyn failed to cite any Illinois cases holding that a spouse’s homemaking services can be deemed a contribution to the other spouse’s nonmarital business venture. Here, Evelyn’s claim of homemaking services were unrelated to the nonmarital property. Her actual contributions to the business were minimal, and she received adequate wages for her secretarial work. Moreover, the trial court correctly noted that Evelyn was substantially reimbursed throughout the marriage by William’s yearly salary, which was reasonable compensation for his efforts. In such a case, the salary received during marriage is marital property, and therefore, the estate has already been compensated. See In re Marriage of Morse (1986), 143 Ill. App. 3d 849, 493 N.E.2d 1088.

Evelyn further argues that the property division was inequitable and should be modified.

It is well settled that fair and equitable division of marital property under the Act does not require that the marital estate be split in equal proportions. (In re Marriage of McMahon (1980), 82 Ill. App. 3d 1126, 403 N.E.2d 730.) Rather, the Act requires only that the trial court divide the marital property in just proportions. (In re Marriage of Carney (1984), 122 Ill. App. 3d 705, 462 N.E.2d 596.) The court is to consider all relevant factors which, in this case, include: the duration of the marriage; the value of the property set apart to each spouse; the relevant economic circumstances of each spouse; the amounts and sources of each spouse’s income; the age, occupation, vocational skills, employability, and needs of each party; whether the apportionment is in lieu of or in addition to maintenance; and the reasonable opportunity for each spouse for future acquisition of assets and income. (Ill. Rev. Stat. 1985, ch. 40, par. 503(d).) A reviewing court will not disturb the trial court’s apportionment of property absent a showing of an abuse of discretion. (In re Marriage of Wentink (1984), 132 Ill. App. 3d 71, 476 N.E.2d 1109.) The standard used in determining whether the trial court abused its discretion is whether no reasonable person would take the view adopted by the court. In re Marriage of Brooks (1985), 138 Ill. App. 3d 252, 486 N.E.2d 267.

Applying the above principles to the instant case, we find that a reasonable person could have adopted the view taken by the trial court. Although William had significant assets and a large annual income, Evelyn was not left without sizeable assets of her own. More importantly, the trial court ordered William to pay $700 per month in maintenance which we have extended for five years before it is reviewable. Additionally, the trial court also ordered William to pay 40% of his annual net income in child support. Under the circumstances, we find no abuse of discretion in the court’s distribution of the marital property.

Evelyn next argues that the trial court’s order relating to the children’s educational expenses should be modified to provide: (1) private out-of-State high school tuition expenses for the children; (2) that Evelyn be named as trustee of the funds established for the children’s college education; and (3) that William pay all college education expenses not covered by the trusts.

We disagree. The trial court’s decision regarding the above issues was well within its sound discretion, and we find no abuse of that discretion. The trial court correctly found that the parties did not have significant' income to continue the private education. It appears that the couple was able to afford the private schooling in part because of money loaned or given to Evelyn by her parents. The trial court also prudently named William the trustee of the educational funds. The record showed that he was responsible for establishing the funds and showed more concern about the parties’ financial ability to provide for the children’s education. Regarding the college education expenses not covered by the trust fund, the court ruled that if the parties cannot agree, the court will resolve the issue when and if it arises. The trial court’s approach was reasonable, since any additional expenses were speculative, and the issue could be decided at a later date. Under the circumstances, we find that the trial court’s decision was proper.

Lastly, Evelyn argues that the trial court erred in refusing to award her attorney fees and costs.

A trial court’s decision of whether to award attorney fees will not be disturbed on review absent an abuse of discretion. (In re Marriage of Bussey (1985), 108 Ill. 2d 286, 483 N.E.2d 1229.) A party seeking an award of attorney fees must show a financial inability to pay and a corresponding ability of the other spouse to do so. Financial inability to pay, however, does not require a showing of destitution. (In re Marriage of Felson (1988), 171 Ill. App. 3d 923, 525 N.E.2d 1103.) Nor is it necessary for a spouse seeking such fees to divest herself of capital assets or deplete her means of support and thereby undermine her economic stability. In re Marriage of Felson (1988), 171 Ill. App. 3d 923, 525 N.E.2d 1103; In re Marriage of Erickson (1985), 136 Ill. App. 3d 907, 483 N.E.2d 692.

Here, the record shows that William’s income, assets, and potential earning power are far greater than Evelyn’s. While Evelyn had an obligation to contribute toward her attorney fees, she should not be divested of her assets thereby undermining her economic stability to do so. Accordingly, we find that Evelyn should be awarded $18,712 in attorney fees from William, which is one-half of the $37,424 that she stipulated at trial was necessary to present her case. Evelyn will be making a contribution to her attorney fees which we believe is appropriate to her situation.

The judgment of the circuit court of Rock Island County is reversed as to the duration of the time-limited maintenance award and the refusal to award attorney fees. The remainder of the trial court’s judgment is affirmed.

Affirmed in part; reversed in part.

SLATER and STOUDER, JJ., concur.


text:
      In re C.S., a Minor (The People of the State of Illinois, Petitioner-Appellant, v. C.S., Respondent-Appellee).
    Third District
    No. 3—90—0804
    Opinion filed July 5, 1991.
    Edward Burmila, Jr., State’s Attorney, of Joliet (Jay P. Hoffmann, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Joseph C. Polito, of Joseph C. Polito, Ltd., of Joliet, for appellee.
   JUSTICE McCUSKEY

delivered the opinion of the court:

The defendant, C.S., was charged with one count of criminal sexual abuse (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 15(b)). He subsequently tendered a negotiated plea of guilty. However, the trial court found that no offense had been committed and refused to accept the plea. Thereafter, the State filed two motions for substitution of judge. The trial court denied the motions, and the State appeals. We affirm.

The State first argues the trial court erred in denying its motion for an automatic substitution of judge. Specifically, the State contends the motion for substitution of judge was timely filed within 10 judicial days after being placed on the judge’s trial call.

The State, by written motion, may move for an automatic substitution of the trial judge by alleging that such judge is prejudiced against the State. Upon the filing of such motion, the court shall proceed no further in the cause but shall transfer it to another judge. A timely motion for automatic substitution of judge must be filed within 10 judicial days after the case has been placed on the judge’s trial call. (Ill. Rev. Stat. 1989, ch. 38, par. 114 — 5(c).) The time within which any act provided by law is to be done shall be computed by excluding the first day and including the last, unless the last day is Saturday or Sunday or is a holiday, and then it shall also be excluded. Ill. Rev. Stat. 1989, ch. 1, par. 1012.

Here, the record reflects that Judge Bolden’s first involvement in this case was on October 12, 1990. It also shows the State did not file its motion until October 26, 1990. The motion was filed four days after the statutory 10-day time limit. We agree the motion was untimely filed. Therefore, we find the trial court properly denied the State’s motion.

The State next argues the trial court erred in denying its motion for substitution of judge for cause. Specifically, it contends the court erred in failing to assign the case to a neutral judge for a hearing on the State’s motion.

The State may move at any time for substitution of judge for cause and must support its position with an affidavit. (Ill. Rev. Stat. 1989, ch. 38, par. 114 — 5(d).) However, the right to a substitution of judge for cause is not absolute and the burden of establishing cause rests with the moving party. (People v. Andricopulos (1987), 162 Ill. App. 3d 899, 516 N.E.2d 302.) Furthermore, the trial court is in the best position to determine whether it has become prejudiced. People v. Hall (1986), 114 Ill. 2d 376, 499 N.E.2d 1335.

In the case at hand, the record shows the 14-year-old male defendant was charged with having sexual intercourse with a 13-year-old female victim. Defense counsel informed the trial judge that a plea agreement had been reached wherein the defendant agreed to plead guilty in exchange for a sentencing recommendation by the State.

The trial court refused, however, to accept the plea, finding the defendant was not guilty of any crime. It found the parties were of equal stature and the sexual conduct was consensual. The court further explained that some abuse, by either force, lack of consent, or some other factor, was necessary for this to be a crime.

The State then informed the court it wished to present additional evidence to prove that criminal conduct had occurred. The court told the State to proceed with its case. The State responded, claiming the trial court was prejudiced because the judge had stated he would not find the defendant guilty.

The court, in denying the State’s motion for substitution of judge, stated:

“Not on the facts that I understood this morning. You’re introducing new facts now, and I’ll hear them. I didn’t hear these facts this morning or at the probable cause hearing either and nothing resembling it. This is all very new, Mr. Knick, all very new. So I haven’t [prejudged] those facts because this is the first time I heard them. I haven’t [prejudged] anything. I judged what I heard. Now, do you want to present those new facts at your adjudicatory hearing which you’re entitled to have? And you may proceed. I’ll hear that, and we’ll decide then whether this young fellow is guilty of anything. But what I understood this morning and what I understood at the probable cause hearing which is not what I heard this afternoon, I would not have found him guilty. And you can’t change the facts on me, Mr. Knick, and then tell me I prejudged the facts, and that’s what you’ve done.”

Here, we find the trial court had not formed an opinion on the merits of the State’s case and, as such, was not prejudiced against the State. The record clearly reflects the trial judge refused to accept the plea on the facts presented by the State. The State then attempted to introduce new evidence at the same time it claimed the court had already formed an opinion on the facts.

The court assured the State that it could be fair and that it was not prejudiced against any new facts the State wished to introduce to establish the defendant’s guilt. Our examination of the record clearly fails to show any unfairness to the State. We find the State failed to meet its burden of showing the court was prejudiced against it.

Accordingly, the judgment of the circuit court of Will County is affirmed.

Affirmed.

SLATER and HAASE, JJ., concur.


text:
    MARK A. BERTULI et al., Plaintiffs-Appellants, v. WILLIAM GAULL et al., Defendants-Appellees.
    Third District
    No. 3—90—0736
    Opinion filed July 5, 1991.
    Louis E. Olivero & Associates, of Peru (Louis E. Olivero, of counsel), for appellants.
    Bernabei & Balestri, of La Salle (John Balestri, of counsel), for appellees.
   JUSTICE HAASE

delivered the opinion of the court:

The plaintiffs, Mark and Cynthia Bertuli, successfully enforced a restrictive covenant against the defendants, William and Julie Gaull. Subsequent to the entry of the injunction, the plaintiffs brought suit seeking to recover $4,000 in legal fees, court costs, and out-of-pocket expenses they expended in bringing the action. The defendants moved to dismiss. The trial court granted the defendants’ motion and ordered the plaintiffs’ complaint dismissed. The plaintiffs filed a motion to reconsider. The trial court denied the motion to reconsider. The defendants then brought a motion for sanctions pursuant to Supreme Court Rule 137 (134 Ill. 2d R. 137). On June 26, 1990, a hearing was held on the defendants’ motion for sanctions.

At the conclusion of the hearing, the trial court took the motion under advisement. On August 14, 1990, the trial court, in a written order, granted the defendants’ motion for sanctions. The plaintiffs appeal both the dismissal of their complaint and the imposition of sanctions. We affirm in part and vacate in part.

The plaintiffs and defendants live in the same residential subdivision. All lots in the subdivision are subject to a restrictive covenant. The covenant provides that no garage may be erected for more than two cars. The covenant also provides that any party violating the covenant will be liable for “damages.” The plaintiffs learned the defendants planned to build a four-car garage on their property and sought preventative injunctive relief. In addition, the plaintiffs sought the attorney fees and court costs they expended in bringing the action. The court granted the injunction but denied the plaintiffs’ request for attorney fees and court costs. The court ruled that a petition for attorney fees and court costs was not properly part of an action to enforce a restrictive covenant. The plaintiffs then brought the present action.

The rule in Illinois is well established that attorney fees and the ordinary expenses of litigation are not allowable to the successful party in the absence of a statute or specific agreement of the parties. (Saltiel v. Olsen (1981), 85 Ill. 2d 484; Amoco Realty Co. v. Montalbano (1985), 133 Ill. App. 3d 327, 478 N.E.2d 860.) The plaintiffs acknowledge this basic rule laid down in Saltiel and Amoco, but assert that when one party successfully obtains a preventative remedy against another under contract, the only possible meaning of the word “damages” is that the successful party be allowed to recover the attorney fees and court costs expended in bringing the action. Any other interpretation, the plaintiffs argue, would render the term “damages” meaningless. Although the plaintiffs’ theory has some logical merit, the terms “attorney fees” and “court costs” are legal terms of art. If the parties to a contract wish to include attorney fees and court costs as part of the recoverable costs for breach of that contract, they are free to do so. In absence of such an explicit recitation of those terms by the parties, however, they will not be inferred. The trial court did not err in dismissing the plaintiffs’ complaint.

We are now called upon to decide whether the trial court erred or abused its discretion in assessing sanctions against the plaintiffs under Supreme Court Rule 137. (134 Ill. 2d R. 137.) Rule 137, effective August 1, 1989, preempts section 2 — 611 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 611). Rule 137 is almost identical to section 2 — 611, with a few notable exceptions. For example, Rule 137 provides a trial court “may” impose sanctions for violation of its terms, instead of the mandatory “shall” of section 2 — 611. Additionally, Rule 137 states:

“Where a sanction is imposed under this rule, the judge shall set forth with specificity the reasons and basis of any sanction so imposed either in the judgment order itself or in a separate written order.” (134 Ill. 2d R. 137.)

This requires a court to make specific factual findings rather than just recite the language of the rule in its ratio decidendi. Unfortunately, the trial court’s order in the case at bar simply recites the language of Rule 137 and no transcript of the hearing on the motion for sanctions was included in the record on appeal. The trial court’s written decision, in pertinent part, provides as follows:

“Now, having considered all relevant matters, the court FINDS that the Plaintiffs’ Motion to Reconsider was not well ground in fact and warranted by existing law or a good faith argument for the extension, modification or reversal of existing law. The Court FURTHER FINDS that the Motion to Reconsider was brought to harass and needlessly increase the costs of litigation for the Defendants.”

As reviewing courts have noted previously, the decision to impose sanctions is within the sound discretion of the trial judge and will not be reversed on appeal absent an abuse of discretion. (Yassin v. Certified Grocers of Illinois, Inc. (1990), 133 Ill. 2d 458.) We adhere to this rule because the circuit court is in the best position to decide how the rules and statutes of this State should be applied in the cases before it, and it is for that reason we afford its decisions considerable deference upon review. The predicate to such deference, however, is that the circuit court make explicit factual findings upon which a court of review may make an informed and reasoned decision. As we noted in In re Estate of Smith (1990), 201 Ill. App. 3d 1005, 1009-10, 559 N.E.2d 571:

“The decision of the circuit court needs to clearly set forth the factual basis for the result reached in order to be accorded deferential treatment. The appellate court in reviewing a decision on a motion for sanctions should primarily be determining whether (1) the circuit court’s decision was an informed one, (2) the decision was based on valid reasons that fit the case, and (3) the decision followed logically from the application of the reasons stated to the particular circumstances of the case.”

In the case at bar, the court has set forth the legal conclusions upon which it assessed sanctions against the plaintiffs, but in order to intelligently review those conclusions, we need to be apprised of the evidentiary facts that precipitated the award. Additionally, such facts are necessary in order for a court of review to develop and maintain a consistency of result, at least for certain situations which are common, that adequately protects both the litigants and the integrity of our judicial system. See Mars Steel Corp. v. Continental Bank N.A. (7th Cir. 1989), 880 F.2d 928 (Seventh Circuit’s en banc decision on how to approach review of decisions under Rule 11 of the Federal Rules of Civil Procedure, after which Rule 137 is patterned).

As we further noted in In re Estate of Smith (1990), 201 Ill. App. 3d 1005, 1010, 559 N.E.2d 571:

“For a court of review to enter its decision without benefit of the trial court’s explicit findings tends to establish too many ad hoc rules of law as to the correct result in any given case. ***
*** [I]n order for the circuit court to fulfill the prerequisites for exercising its discretion, it must have an evidentiary hearing and it must make specific findings which will then form the basis for its ultimate decision.”

In this case the circuit court undoubtedly had reasons for its decision; however, it failed to express those reasons. Accordingly, the order of the circuit court of Putnam County assessing sanctions and attorney fees against the plaintiffs is vacated.

Affirmed in part and vacated in part.

GORMAN and McCUSKEY, JJ., concur.