author: JUSTICE NICKELS

text:
    ELMHURST AUTO PARTS, INC., et al., Plaintiffs-Appellants, v. FENCL-TUFO CHEVROLET, INC., Defendant (Quality Chevrolet-GEO Company, Respondent-Appellee).
    Second District
    No. 2—91—1242
    Opinion filed September 24, 1992.

      E. Paul Lanphier and Jeffrey N. Kowalkowski, both of E. Paul Lan-phier, Ltd., of Elmhurst, for appellants.
    Daniel P. Dawson and Michael J. Daley, both of Nisen & Elliott, of Chicago, for appellee.
   JUSTICE NICKELS

delivered the opinion of the court:

Plaintiffs, Elmhurst Auto Supply Company, Inc., and Villa Park Automotive Supply, appeal the order of the circuit court denying their motion for turnover of assets held by respondent, Quality Chevrolet-GEO Company (Quality). Plaintiffs contend the trial court erroneously applied the six-month statute of limitations of the Uniform Commercial Code — Bulk Transfers (Ill. Rev. Stat. 1989, ch. 26, par. 6 — 110) to their motion for a turnover order. The issue on appeal is whether a supplementary proceeding commenced under section 2 — 1402 of the Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 1402) tolls the limitation period of section 6 — 110.

Prior to June 1990, plaintiffs sold and delivered auto parts to defendant, Fencl-Tufo Chevrolet, Inc. However, in May 1990, defendant and General Motors Automobile Corporation (GMAC) executed an “Asset Purchase Agreement” and bill of sale respectively with Sypolt-Chevrolet-GEO, Inc., which transactions were completed on June 14, 1990. Plaintiffs eventually filed a complaint against defendant seeking payment for the auto parts and, on September 13, 1990, obtained a default judgment against defendant in the amount of $4,439.44.

In November 1990, plaintiffs caused the sheriff to serve a citation to discover assets on “Mr. Sypolt c/o Quality Chevrolet” and unsuccessfully attempted to levy defendants’ assets purchased by SypoltChevrolet-GEO, Inc., which had in turn been assigned under a contract to Quality. Quality appeared and participated in the citation proceedings, which were continued several times, and produced documents concerning its ownership of the assets formerly owned by defendant. Eventually on July 9, 1991, plaintiffs moved for a turnover of assets against Quality. Plaintiffs alleged that on or about June 14, 1990, defendant conveyed a substantial portion of its assets to Quality without notifying its creditors of the bulk sale of its assets as required by section 6 — 104(1) of the Commercial Code — Bulk Transfers. (Ill. Rev. Stat. 1989, ch. 26, par. 6 — 104(1).) Therefore, the change of ownership of the assets was ineffective as to plaintiffs as creditors without notice of the sale, and Quality was holding property deemed to be assets of defendant (see Ill. Rev. Stat. 1989, ch. 26, par. 6 — 104(1)), to which plaintiffs were entitled in satisfaction of their judgment against defendant.

Quality moved to dismiss plaintiffs’ motion for a turnover on several grounds. It maintained that the motion for a turnover was a levy and that because it was not filed until July 9, 1991, it fell outside the six-month statute of limitations that ran from the sale of assets. Quality also argued that its acquisition of the assets was not covered by the Commercial Code — Bulk Transfers based on various theories that are not at issue here.

On August 19, 1991, the trial court denied plaintiffs’ motion for turnover “finding that a levy was not made within the time period of [section] 6 — 110.” Plaintiffs filed a motion to reconsider the order, which the trial court denied on September 30, 1991. On October 24, 1991, plaintiffs filed a notice of appeal of those orders.

We first summarily dispose of Quality’s assertion, without citation to authority, that we have no jurisdiction to hear this appeal because plaintiffs’ motion to reconsider did not toll the time for filing their notice of appeal. Contrary to Quality’s bare assertion, a motion to reconsider is a post-trial motion. (Archer Daniels Midland Co. v. Barth (1984), 103 Ill. 2d 536, 538; Coleman v. Windy City Balloon Port, Ltd. (1987), 160 Ill. App. 3d 408, 418-19.) Therefore, under Rule 303(a)(2) (134 Ill. 2d R. 303(a)(2)), the time for filing the notice of appeal was tolled pending the ruling on the motion for reconsideration. Plaintiff’s notice of appeal was timely, and we have jurisdiction to hear such appeal.

Plaintiffs argue on appeal that they commenced an action within six months of the transfer of assets by virtue of their citation to discover assets on November 1, 1990, and, thus, section 6 — 110 does not apply to bar their claim. In contrast, Quality asserts that the citation to discover assets was not an action but merely a discovery measure.

Although the Commercial Code — Bulk Transfers was repealed effective January 1, 1992, it was effective at all times pertinent to this litigation. Section 6 — 110 of the Commercial Code — Bulk Transfers provides:

“No action under this Article shall be brought nor levy made more than 6 months after the date on which the transferee took possession of the goods unless the transfer has been concealed.” (Ill. Rev. Stat. 1989, ch. 26, par. 6 — 110.)

Section 6 — 110 is based on section 6 — 111 of the Uniform Commercial Code. 2C U.L.A. §6-111, at 104 (1991).

Prior to the enactment of the Commercial Code — Bulk Transfers, a merchant owing many debts would sell his stock in trade to any purchaser, sometimes a relative, for any price, appropriate the proceeds and flee the jurisdiction. Left with only the law of fraudulent conveyances, creditors had to prove that the acquisition was not bona fide to prevail against the purchaser and his assets. Most creditors could not meet this burden. (Ill. Ann. Stat., ch. 26, art. VI, Introductory Comment, at 611 (Smith-Hurd 1963); 2C U.L.A. Prefatory Note, at 6 (1991).) Bulk sales laws remedied this problem by allowing creditors to trace the debtor’s assets to the purchaser and to deem the assets as still belonging to the debtor-seller when the debtor-seller did not comply with the laws. (Ill. Rev. Stat. 1989, ch. 26, par. 6— 104.) For the conveyance to be effective against creditors, the transferor of the assets must compile a sworn list of creditors and a schedule of assets (Ill. Rev. Stat. 1989, ch. 26, par. 6 — 104), and the transferee must give creditors 10 days’ prior notice of the change of possession (Ill. Rev. Stat. 1989, ch. 26, par. 6 — 105). This notice provides creditors with the opportunity to investigate and prevent fraud prior to the conveyance. (Ill. Ann. Stat., ch. 26, par. 6 — 105, Illinois Code Comment, at 648 (Smith-Hurd 1963).) Without such notice, the transfer is deemed to be ineffective.

Because the remedy thus afforded was unique and available even against bona fide purchasers, and it was limited (see 2C U.L.A. Prefatory Note, at 7 (1991)), a short statute of limitations on the remedy was appropriate (Ill. Ann. Stat., ch. 26, par. 6 — 110, Uniform Commercial Code Comment, at 663 (Smith-Hurd 1963)). However, the remedy was cumulative of other legal remedies, and the statutes of limitations pertaining to other actions, such as repossession under a security agreement or a fraudulent transfers action, were not affected. See Palmeri v. Adams (1972), 4 Ill. App. 3d 881, 883; Boss v. Bassett Furniture Industries of North Carolina, Inc. (1982), 249 Ga. 166, 170, 288 S.E.2d 559, 562.

The drafters of the Commercial Code anticipated that the primary application of the act would occur when judgment creditors levied upon the debtor’s property held by a putative buyer. (See Ill. Ann. Stat., ch. 26, par. 6 — 110, Uniform Commercial Code Comment, at 663 (Smith-Hurd 1963).) In the case of such levy, no separate “action under this Article” would be necessary because the creditor’s claim against the transferor-defendant would already be reduced to judgment, and only the levy against the transferee would be conducted pursuant to the Commercial Code — Bulk Transfers. See Ill. Ann. Stat., ch. 26, par. 6 — 110, Uniform Commercial Code Comment, at 663 (Smith-Hurd 1963).

However, the Commercial Code — Bulk Transfers also provided that a separate action could be brought. (See Ill. Rev. Stat. 1989, ch. 26, par. 6 — 110.) The remedies available to creditors are thus left to the general laws of fraudulent conveyances and can include such diverse remedies as garnishment against the transferee, a levy on the property in the hands of the transferee, a prejudgment attachment, a fraudulent conveyance suit with injunctive relief or other action (see Ill. Ann. Stat., ch. 26, par. 6 — 104, Illinois Code Comment, at 639-41 (Smith-Hurd 1963)), and the court may look outside the Commercial Code — Bulk Transfers for the appropriate remedy (Pastimes Publishing Co. v. Advertising Displays (1972), 6 Ill. App. 3d 414, 417; see Froehlich v. J.R. Froehlich Manufacturing Co. (1981), 93 Ill. App. 3d 179, 185).

The Uniform Commercial Code also provides that an “ ‘[ajction’ in the sense of a judicial proceeding includes recoupment, counterclaim, set-off, suit in equity and any other proceedings in which rights are determined.” (Ill. Rev. Stat. 1989, ch. 26, par. 1 — 201(1).) The remedies provided in the Uniform Commercial Code are to be liberally administered (Ill. Rev. Stat. 1989, ch. 26, par. 1 — 106), and, similarly, the provisions of the Code of Civil Procedure, which includes section 2— 1402, are to be liberally construed (Ill. Rev. Stat. 1991, ch. 110, par. 1 — 106; Second New Haven Bank v. Kobrite, Inc. (1980), 86 Ill. App. 3d 832, 835). With this background, we must determine whether the commencement of a supplemental citation to discover assets proceeding under section 2 — 1402 was an action and whether such proceeding tolled the operation of section 6 — 110 of the Act.

A supplemental proceeding under section 2 — 1402, including a citation to discover assets, is a method by which a judgment creditor may proceed against the judgment debtor or third parties to discover and recover assets belonging to the judgment debtor for the purpose of applying the property in satisfaction of a judgment. (Valley Pontiac-Cadillac-Jeep-Eagle, Inc. v. Jim Thornton Pontiac Cadillac, Inc. (1989), 187 Ill. App. 3d 699, 703.) It differs from an execution and a levy as delineated in sections 12 — 110 and 12 — 111 of the Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, pars. 12 — 110, 12— 111). Pursuant to those sections, the lien of judgment does not attach to the debtor’s personal property within the county until the execution process begins (In re Marriage of Logston (1984), 103 Ill. 2d 266, 278), which occurs when a certified copy of the judgment is delivered to the sheriff of the county for service (In re Marriage of Rochford (1980), 91 Ill. App. 3d 769, 774; Kaiser-Ducett Corp. v. Chicago-Joliet Livestock Marketing Center, Inc. (1980), 86 Ill. App. 3d 216). Upon presentment of the certified copy of the judgment, the sheriff may seize and levy upon the property of the debtor to satisfy the judgment. Illinois law no longer refers to “writs of execution” but to the enforcement of judgments and levies. See Ill. Rev. Stat. 1991, ch. 110, par. 2-1501; Logston, 103 Ill. 2d at 281-83.

In contrast, the filing of a citation to discover assets alone may not explicitly create a lien on that property of the debtor in the hands of a third party. (See Poulos v. Litwin (1989), 193 Ill. App. 3d 35, 39; Water Technologies Corp. v. Calco, Ltd. (N.D. Ill. 1990), 132 F.R.D. 670, 677.) Section 2 — 1402 is designed to provide a statutory foundation for an efficient and expeditious procedure to discover assets and compel their application to satisfy a prior judgment. (Bank of Aspen v. Fox Cartage, Inc. (1989), 126 Ill. 2d 307, 314.) It is also a versatile proceeding in which a judgment creditor may not only discover assets but also may obtain orders from the circuit court to restrain the transfer of assets, turn over property, garnish funds due to the debtor or property held for the debtor, or order the sheriff to sell discovered property. (Ill. Rev. Stat. 1991, ch. 110, pars. 2 — 1402(d)(2), (b)(3), (b)(4), (c).) The citation issued by the clerk of the court may contain a restraining provision prohibiting the third party from transferring away the debtor’s property, which may be enforced either under punishment by a contempt proceeding or under the threat of entering a judgment against the third party for the amount of the transferred assets (Bank of Aspen, 126 Ill. 2d at 313, 320), and the circuit court may compel any person to assign property to the same extent as in any other proceeding brought by a creditor to enforce a judgment (Ill. Rev. Stat. 1989, ch. 110, par. 2-1402(b)(5); North Bank v. F & H Resources, Inc. (1977), 53 Ill. App. 3d 950, 953). A supplemental proceeding can itself be a final order that is independent of the initial lawsuit that has been reduced to judgment. (See Poulos, 193 Ill. App. 3d at 38.) Similarly, the precursor of section 2 — 1402 was held to be “other judicial process” under section 9 — 311 of the Commercial Code. (North Bank, 53 Ill. App. 3d at 954.) Thus, section 2 — 1402(e) permits the court to determine the rights of third parties in the property and such supplemental proceeding is an “action.” Ill. Rev. Stat. 1991, ch. 110, par. 2 — 1402(e); cf. Ill. Rev. Stat. 1991, ch. 26, par. 1— 201(1) (Commercial Code definition of “action”).

Respondent was served and appeared personally in this supplemental proceeding (see O’Connell v. Pharmaco, Inc. (1986), 143 Ill. App. 3d 1061, 1069), and within the citation proceeding, the circuit court had the authority to determine the rights of the parties (Ill. Rev. Stat. 1991, ch. 26, par. 1 — 201(1); ch. 110, par. 2 — 1402(e)). The citation proceeding was not merely a subpoena to appear before the court and answer questions regarding the debtor’s assets because the proceedings could have resulted in an injunction against the respondent, a judgment, an order of turnover or other relief. (Cf. Baronski v. Shust (1920), 218 Ill. App. 8, 11 (former citation process allowed only discovery).) Thus, the citation proceeding was an “action” for the purpose of section 6 — 110 of the Commercial Code — Bulk Transfers.

The trial court determined that the turnover order was a “levy” and was not made within six months as required by section 6 — 110. However, an action was commenced within the six-month statute of limitations with the filing of plaintiffs’ citation to discover assets. The purpose of a statute of limitations is to protect parties from stale claims and give defendants an opportunity to investigate the circumstances. (Segal v. Sacco (1990), 136 Ill. 2d 282, 286; see Amman Food & Liquor, Inc. v. Heritage Insurance Co. (1978), 65 Ill. App. 3d 140, 147.) Plaintiffs gave respondent apt notice that they were contesting its title to defendant’s former assets (cf. Johanna Farms, Inc. v. Elliott Equipment Co. (1976), 278 Md. 137, 149, 360 A.2d 436, 442 (section 6 — 111 tolled when a mechanic’s lien was asserted without formal legal process)), and respondent was personally served with process (O’Connell, 143 Ill. App. 3d at 1069). We hold that section 6 — 110 is tolled by the commencement of the enforcement proceedings, including citation proceedings, against the holder of the property alleged to be owned by the transferor debtor.

We reverse the trial court’s ruling regarding the statute cf limitations. However, in its motion to dismiss Quality also alleged that plaintiffs’ claim was barred by affirmative matters outside the pleadings. Thus, we must remand the cause to the trial court for further proceedings.

For the above reasons, the order of the trial court is reversed, and the cause is remanded for further proceedings.

Reversed and remanded.

BOWMAN and DOYLE, JJ., concur.


source: Caselaw Access Project

author: JUSTICE HAASE

license: Public Domain

text:
    MARY BEASTALL, Ex’r of the Estate of Eleanor Bauer, Deceased, Plaintiff-Appellant, v. SCOTT MADSON, Defendant-Appellee.
    Third District
    No. 3—92—0054
    Opinion filed October 6, 1992.

      Douglas G. Griffin, of Miller, Hall & Triggs, of Peoria (William R. Kohlhase, of counsel), for appellant.
    Stephen R. Swofford and David E. Jones, both of Hinshaw & Culbertson, of Chicago (Bruce L. Carmen, of counsel), for appellee.
   JUSTICE HAASE

delivered the opinion of the court:

Eleanor Bauer died approximately one year after her husband, Frederick Bauer. The executor of Eleanor Bauer’s estate, Mary Beas-tall, brought the present legal malpractice action against the defendant, Scott Madson, claiming that Madson negligently failed to take action to protect Eleanor Bauer’s interest in her deceased husband’s estate. Specifically, Beastall claims that Madson failed to advise Eleanor Bauer to renounce Frederick Bauer’s will and failed to take action to set aside an antenuptial agreement and inter vivos trust which disposed of the bulk of Frederick Bauer’s estate. The defendant filed a motion to dismiss the complaint for failure to state a cause of action. The trial court granted the defendant’s motion and ruled (1) that Beastall lacked standing to bring the present action; and (2) that even if Beastall did have standing, the plaintiff failed to show a likelihood that Eleanor Bauer would have prevailed in setting aside the trust and antenuptial agreement. In response, the plaintiff sought leave to file an amended complaint. The trial court denied plaintiff’s motion to file an amended complaint. The plaintiff appeals.

Eleanor Bauer married Frederick Bauer in April of 1969. Shortly before the couple married, they executed an antenuptial agreement waiving any interest each may have possessed in the other’s property. In March of 1986, Frederick Bauer transferred substantially all of his assets to a revocable trust under which he was named as trustee. Shortly after Frederick Bauer’s death in September of 1987, his widow employed attorney Scott Madson to represent her in connection with her rights arising out of the death of Frederick Bauer. Mad-son filed suit to set aside the trust and antenuptial agreement. Mad-son also filed a petition to perpetuate the testimony of Eleanor Bauer. In this petition, Madson alleged that the reason Bauer wished to perpetuate her testimony was that she was in failing health “and there is no reasonable assurance she will be alive to testify at any trial in this cause.” Bauer died on November 13, 1988, prior to her giving an evidence deposition or any other sworn testimony. Madson also had not filed a petition to set aside the will of Frederick Bauer at the time of Eleanor Bauer’s death.

The executor of Bauer’s estate, Mary Beastall, brought the present legal malpractice action against attorney Madson. In her suit, the plaintiff alleges that Madson failed to advise Eleanor Bauer she could renounce Frederick Bauer’s will; failed to take appropriate action to set aside the antenuptial and trust instruments; and failed to preserve the testimony of Eleanor Bauer.

Beastall claims that had the defendant diligently prosecuted the claims of Eleanor Bauer, Eleanor Bauer or her personal representative would have obtained a judgment setting aside the antenuptial agreement and the trust.

The trial court ruled that in order for the plaintiff to maintain her malpractice action she must demonstrate that there is a likelihood that Eleanor Bauer would have prevailed in setting aside that trust. The court noted that the plaintiff’s complaint is devoid of specific factual allegations supporting her contentions. The court noted that mere assertions or conclusions of law contained in a complaint are not sufficient to support a claim of legal malpractice. The court ruled that the fact that the antenuptial agreement of 1969 and the deed in trust in 1986 were both signed by Eleanor Bauer, plus the fact that both Bauers are now deceased, makes such a showing unlikely. The court then granted the defendant’s motion to dismiss. In response, the plaintiff sought leave to file an amended complaint. The trial court denied the plaintiff’s motion and the plaintiff now appeals.

We must now determine (1) whether the trial court erred in ruling that the pláintiff lacks standing to bring the present action; (2) whether the trial court erred in dismissing her complaint for failure to state a cause of action; and (3) whether the trial court erred in failing to allow the plaintiff leave to file an amended complaint.

Citing Pelham v. Griesheimer (1982), 92 Ill. 2d 13, the trial court ruled that the plaintiff lacked standing to bring the present action. The court ruled that there was no evidence that Mary Beastall was an intended beneficiary of the attorney-client relationship between attorney Madson and Eleanor Bauer. The defendant also claimed that the plaintiff lacked standing because legal malpractice actions are nonassignable. The court specifically declined to rule on this point. On appeal, the defendant argues both standing theories. A careful review of these contentions, however, reveals that neither is correct.

In Pelham v. Griesheimer (1982), 92 Ill. 2d 13, the plaintiffs brought a legal malpractice action against the defendant, Ronald Griesheimer. Griesheimer had represented Loretta Ray, the plaintiffs’ mother, in a divorce proceeding against George Ray, the plaintiffs’ father. The divorce decree contained a provision requiring George Ray to maintain the plaintiffs as the primary beneficiaries of his life insurance policy. Ray subsequently remarried and named his second wife as the primary beneficiary. When Ray died, the second wife received the proceeds of the insurance policy. The plaintiffs then filed a malpractice action against the defendant. The defendant filed a motion to dismiss claiming that the plaintiffs lacked standing to bring the action. The trial court agreed and dismissed the plaintiffs’ case. The Illinois Supreme Court affirmed. The court noted that the attorney-client relationship was between Loretta Ray and the defendant. The high court ruled that in order for a nonclient to succeed in a malpractice action against an attorney, “he must prove that the primary purpose and intent of the attorney-client relationship was to benefit or influence the third party.” (Pelham, 92 Ill. 2d at 21.) The court held that since the plaintiffs were not the intended beneficiaries of the attorney-client relationship between their mother and the defendant, they lacked standing to sue.

In the case at bar, the plaintiff has not claimed that she was a third-party beneficiary of the attorney-client relationship between Eleanor Bauer and the defendant. Instead, the plaintiff has brought the present action in her capacity as the executor of Eleanor Bauer’s estate. Clearly, in that capacity an attorney-client relationship existed between plaintiff, as executor, and attorney, Scott Madson. As such, the doctrine announced in Pelham is inapplicable to the case at bar.

Instead, we must determine whether a legal malpractice action survives the death of the client. The defendant concedes that a plaintiff’s cause of action for professional malpractice “technically survives under the Survival Act” (Ill. Rev. Stat. 1987, ch. 110½, par. 27 — 6), but asserts that unless the action was filed by the client prior to the time of the death of either the client or the attorney, the plaintiff has no standing to sue. Although interesting, this contention is without legal merit.

In Jones v. Siesennop (1977), 55 Ill. App. 3d 1037, 371 N.E.2d 892, the court ruled that an action for professional malpractice does not abate with the death of the plaintiff. Likewise, in McGill v. Lazzaro (1978), 62 Ill. App. 3d 151, 379 N.E.2d 16, the court ruled that an action for professional malpractice does not abate with the death of the defendant attorney. In the case at bar, the defendant asks this court to distinguish Jones and McGill. According to the defendant, an action for professional malpractice can only survive if the action was filed prior to the death of the client. We disagree. In Jones, the court ruled that an action for professional malpractice is considered “personal property” within the meaning of the Survival Act. (Jones, 55 Ill. App. 3d at 1041.) As such, the action survives and any factual distinction between that case and the one at bar is inconsequential.

Having determined that the plaintiff has standing to bring the present action, we now turn to the merits of her claim. The plaintiff claims that the trial court erred in dismissing her original complaint. We disagree.

In support of her allegation that diligent prosecution of Bauer’s claim would have resulted in the trust being set aside, the plaintiff alleged:

“The Trust was, in actuality, a sham transaction, essentially testamentary in character, and a fraud upon the marital rights of Eleanor Bauer.”

The trial court ruled that the plaintiff failed to provide specific factual allegations in support of her contention that the trust was a “fraud upon the marital rights of Eleanor Bauer.” The court ruled that in order for the plaintiff to maintain her action, “there must be a showing that Eleanor Bauer would have prevailed in setting aside that trust.” The plaintiff argues the trial court erred on this point. A review of applicable case law reveals the plaintiff is mistaken.

In Sheppard v. Kroll (1991), 218 Ill. App. 3d 254, 578 N.E.2d 212, the court dealt with a situation similar to the one at bar. In Sheppard, the plaintiff was injured when he was struck at work by a forklift. It was the plaintiff’s belief that the forklift had a defective transmission and that the vehicle slipped into gear as he was walking past. The plaintiff hired the defendant attorney to prosecute his workman’s compensation claim and institute a products liability action. The plaintiff alleged that the defendant attorney, however, failed to take steps to preserve the forklift, failed to take steps to identify the make and model of the forklift, and failed to employ a mechanical engineer or other expert to inspect the forklift. As a result, the plaintiff alleged that the forklift had been “destroyed, sold or otherwise disposed of by Jay’s Foods, Inc.,” and that it was now “impossible to ascertain the make, manufacturer, seller, or mechanical condition of the forklift that was involved in plaintiff’s injury.” 218 Ill. App. 3d at 256.

In response, the defendant moved to dismiss the plaintiff’s complaint contending that the plaintiff could not succeed in the malpractice action because he could not plead and could not prove he would have prevailed in a products liability action. The trial court agreed and granted the defendant’s motion and dismissed the plaintiff’s suit. The plaintiff appealed.

On review the court noted that in any legal malpractice action, a plaintiff must plead the existence of a valid underlying cause of action. (Claire Associates v. Pontikes (1986), 151 Ill. App. 3d 116, 502 N.E.2d 1186.) Four elements must be alleged and proven: (1) the existence of an attorney-client relationship that establishes a duty on the part of the attorney; (2) a negligent act or omission that breached that duty; (3) proximate cause that establishes that but for the attorney’s negligence, plaintiff would not have suffered an injury; and (4) damages. Pelham v. Griesheimer (1982), 92 Ill. 2d 13, 440 N.E.2d 96.

Because a plaintiff must establish that but for the attorney’s negligence he would have been successful in the underlying action, plaintiff is essentially required to prove a case within a case, specifically, establishing a prima facie product liability case and then proving it in order to prove the legal malpractice case. (Cook v. Gould (1982), 109 Ill. App. 3d 311, 314, 440 N.E.2d 448.) This is required because of the damages element of the action; no malpractice exists unless counsel’s negligence has resulted in the loss of an underlying action. Claire Associates, 151 Ill. App. 3d at 122.

Therefore, we must consider whether plaintiff’s legal malpractice complaint alleged the facts to establish she not only had a valid cause of action, but that she would have been successful in that cause. The court in Sheppard ruled that because the plaintiff could not allege facts which could support a finding that he would have been successful in his products liability action, the trial court did not err in dismissing his malpractice action.

In the case at bar we are faced with a similar situation. The plaintiff alleges that had the defendant diligently prosecuted the claim of Eleanor Bauer, she could have set aside the Frederick Bauer trust. In Johnson v. LaGrange State Bank (1978), 73 Ill. 2d 342, 383 N.E.2d 185, the Illinois Supreme Court explained that in order to set aside a valid inter vivos trust, it is not enough to show that the surviving spouse was deprived of his or her statutory share in the assets transferred. Instead, the contesting party must show that the trust transaction lacked donative intent which was tantamount to a fraud on the marital rights of the surviving spouse.

“We conclude that an inter vivos transfer of property is valid as against the marital rights of the surviving spouse unless the transaction is tantamount to a fraud as manifested by the absence of donative intent to make a conveyance of a present interest in the property conveyed.” 73 Ill. 2d at 361.

The court explained that in order to set aside the trust, it is not enough to show that the settlor has named himself trustee and retained indicia of ownership and control. (Farkas v. Williams (1955), 5 Ill. 2d 417.) Instead, the intent to defraud is found when the transferor in reality had no intent to convey any present interest in the property but, in fact, intended to retain complete ownership. Johnson, 73 Ill. 2d at 359.

In this case, the plaintiff failed to allege in her original complaint that Frederick Bauer retained complete ownership and control over the assets he transferred to the trust. The court correctly dismissed the complaint.

In her amended complaint, however, the plaintiff has made the proper allegations. Although the fact that both Eleanor and Frederick Bauer are now deceased casts doubt upon the plaintiff’s ability to prove the allegations of her amended complaint, we are of the opinion she should be afforded an opportunity to do so.

In Loyola Academy v. S & S Roof Maintenance, Inc. (1992), 146 Ill. 2d 263, 586 N.E.2d 1211, the court noted that there are four factors which must be evaluated to determine whether a trial court has abused its discretion in denying leave to file amended pleadings. These factors are: (1) whether the proposed amendment would cure the defective pleading; (2) whether other parties would sustain prejudice or surprise by virtue of the proposed amendment; (3) whether the proposed amendment is timely; and (4) whether previous opportunities to amend the pleading could be identified. Loyola Academy, 146 Ill. 2d at 273.

A review of the record before this court reveals that the plaintiff’s motion satisfies all four elements articulated above. First, the proffered pleadings, if proven, could form a basis for a judgment in plaintiff’s favor. The amended pleadings allege that Frederick Bauer never actually transferred ownership of the subject property to the trust and that he treated the property as if it were his own. Of course if the subject property was never actually transferred to the trust, the trust could not shield the assets of Frederick Bauer. Second, the defendant would not suffer prejudice or surprise if the amended pleading were allowed. The plaintiff is not seeking to add a new and divergent cause of action to her complaint. She is simply seeking to amend her complaint by adding more specific factual allegations. Third, the proffered amendment was brought fairly early on in the stage of this litigation. If plaintiff had sought to add a new theory of recovery after discovery had been completed and the case was ready for trial, we might have a different view of the proffered amendment. Finally, the plaintiff had not sought any prior amendments. Although the plaintiff did not have an absolute right to amend her complaint, trial courts should generally take a deferential view of such motions when brought early on in the litigation process.

In conclusion, we find the trial court erred in not allowing the plaintiff the opportunity to file her amended complaint. The trial court obviously did so because the court had serious doubts about the plaintiff’s ability to produce admissible evidence in support of her allegations. In light of the fact both Frederick and Eleanor Bauer are now deceased, we share the court’s concerns. If upon remand the plaintiff is unable to produce admissible evidence to support her allegations, the trial court will take the appropriate action. However, it is the view of this court that a party alleging a cause of action should be afforded the opportunity to present her proofs. If allegations are made and the proofs are insufficient to meet her burden, the trial court should grant a motion for a directed verdict.

The judgment of the circuit court of Bureau County is reversed.

Reversed.

SLATER and STOUDER, JJ., concur.


author: JUSTICE STEIGMANN

text:
    PRE-FAB TRANSIT COMPANY, Plaintiff and Counterdefendant-Appellee, v. NORTHBROOK PROPERTY AND CASUALTY INSURANCE COMPANY et al., Defendants and Counterplaintiffs-Appellants.
    Fourth District
    No. 4—91—0835
    Opinion filed September 17, 1992.
    Dunn, Goebel, Ulbrich, Morel & Hundman, of Bloomington (John L. Morel, of counsel), for appellants.
    Edward H. Rawles, of Reno, O’Byrne & Kepley, P.C., of Champaign, for appellee.
   JUSTICE STEIGMANN

delivered the opinion of the court:

Defendants, Northbrook Property and Casualty Insurance Company and Northbrook Indemnity Company (Northbrook), issued insurance polices to plaintiff, Pre-Fab Transit Company (Pre-Fab), which contained a standard premium and retrospective premium endorsement. Pre-Fab filed a declaratory judgment action seeking construction of the retrospective premium endorsement to these policies. Northbrook filed an answer and counterclaim against Pre-Fab to collect the retrospective premium owed plus interest. Northbrook contended that the retrospective premium owed to it by Pre-Fab is $382,167 plus interest; Pre-Fab contended that the premium owed under the retrospective premium endorsement is $99,286. The trial court construed the retrospective premium endorsement to provide that the maximum and minimum retrospective premiums were to be calculated by line of insurance, i.e., auto liability, workers’ compensation, employer liability, and general liability; and then the maximum and minimum retrospective premiums for each line of insurance were to be combined to produce the actual minimum and maximum retrospective premiums. This decision concurred with Pre-Fab's contentions. The trial court found that Pre-Fab owed Northbrook $99,286, and Northbrook appeals. We reverse and remand.

I. Facts

Northbrook entered into a contract of insurance with Pre-Fab. Under the contract, the coverage began on July 1, 1984, and continued until July 1, 1985. Pre-Fab was engaged in the trucking business and employed various drivers and other employees in conjunction with its business.

The policies Northbrook issued to Pre-Fab included a business auto policy covering truckers’ liability, a business auto policy (which provided coverage for physical damage to those vehicles either owned by Pre-Fab or under permanent lease to them), a commercial inland marine policy, a general automobile liability policy covering trailers and semitrailers, and various workers’ compensation and employer’s liability policies. The policies provided workers’ compensation coverage in multiple States by endorsement with variable rates per State.

Northbrook issued Pre-Fab a retrospective premium endorsement, one-year plan, multiple lines, because Pre-Fab chose to have the cost of insurance rated retrospectively. The endorsement explained how the retrospective premium would be determined. The retrospective premium endorsement was on a standardized form, copyrighted by the National Council on Compensation Insurance and used with its permission.

Due to the high frequency and the severity of accidents, the premium was increased on March 1, 1985, through the balance of the policy term. No other changes occurred in the coverages nor were any other policies issued.

Pre-Fab paid the standard premium owed to Northbrook. A dispute arose over the amount of the premium Pre-Fab owed to North-brook that was generated pursuant to the retrospective rating plan endorsement. On November 3, 1986, Pre-Fab sent a check to North-brook for $94,124.81, the amount of premium that Pre-Fab claimed it owed Northbrook under the retrospective rating plan endorsement. Northbrook returned the check and informed Pre-Fab that it owed Northbrook more than $400,000.

Pre-Fab filed a multicount complaint and, later, a first-amended complaint against Northbrook. Northbrook filed an answer with affirmative defenses and a counterclaim. Later, Northbrook filed an amended counterclaim to recover its premium due on the retrospective rating plan endorsement.

Both parties agreed that the contract was unambiguous (but each had its own interpretation) and that a question of law was presented to the circuit court as to the retrospective premium endorsement. The dispute involved the method and manner of calculating the retrospective premium pursuant to the endorsement.

The circuit court agreed with the parties that the contract language was unambiguous. It held that the contract called “for the combination of the multiple lines after figuring basic premium percentages, tax multipliers and the minimum and maximum retrospective premium for the differing lines of insurance.” (Emphasis added.) As previously noted, this interpretation concurred with Pre-Fab’s formula regarding computation of the retrospective premium. The trial court granted Pre-Fab’s request for declaratory relief, held that Pre-Fab owed Northbrook $99,286, and denied Northbrook’s amended counterclaim. This appeal followed.

II. Analysis

A. General Principles of Construction and the Standard of Review

General principles regarding the construction and interpretation of insurance contracts do not differ from those controlling other contracts. (Zitnik v. Burik (1946), 395 Ill. 182, 186, 69 N.E.2d 888, 890.) The Illinois Supreme Court has written that “[t]he construction of a contract and the determination of the rights and obligations of the parties to the contract are questions of law, the determination of which rests exclusively with the court.” (Zurich Insurance Co. v. Raymark Industries, Inc. (1987), 118 Ill. 2d 23, 58, 514 N.E.2d 150, 166; see also Oldweiler v. Peoples Bank (1987), 161 Ill. App. 3d 317, 320, 514 N.E.2d 541, 543.) An insurance contract must be interpreted from an examination of the complete document and not an isolated part. (Zurich, 118 Ill. 2d at 50, 514 N.E.2d at 162.) When evidence before the trial court is entirely documentary, the appellate court is not bound by the trial court’s finding, and may independently construe the document unrestrained by the trial court’s determination. Oldweiler, 161 Ill. App. 3d at 320, 514 N.E.2d at 543.

The primary objective in construing a contract is to effectuate the parties’ intentions when entering the agreement. Absent ambiguity, the intention of the parties must be gathered from the language used in the contract, not from a party’s construction of that language. Lenzi v. Morkin (1984), 103 Ill. 2d 290, 293, 469 N.E.2d 178, 179; Board of Governors of State Colleges & Universities v. Illinois Educational Labor Relations Board (1988), 170 Ill. App. 3d 463, 470, 524 N.E.2d 758, 761.

A contract is ambiguous if it is subject to more than one reasonable interpretation. The existence of an ambiguity in a contract must be determined as a question of law by the court. (Quake Construction, Inc. v. American Airlines, Inc. (1990), 141 Ill. 2d 281, 288, 565 N.E.2d 990, 994.) If the terms of an alleged contract are ambiguous or capable of more than one interpretation, parol evidence is admissible to ascertain the parties’ intent. Quake Construction, 141 Ill. 2d at 288, 565 N.E.2d at 994.

A document is not ambiguous merely because the parties fail to agree upon its meaning. (First National Bank v. Country Mutual Insurance Co. (1988), 175 Ill. App. 3d 860, 866, 530 N.E.2d 521, 525.) Insurance contracts must be construed according to the sense and meaning of the terms which the parties have used. Zitnik, 395 Ill. at 186, 60 N.E.2d at 890.

B. Retrospective Premiums

The issue in this case involves the calculation of a retrospective premium in the standard form insurance policy between North-brook and Pre-Fab. A retrospective premium endorsement provides flexible premiums based on the insured’s loss experience. A retrospective premium enables an insurer to determine its incurred losses with finality and to adjust the final premium in relation to the loss experience. Aetna Life & Casualty Co. v. Anfinsen Plastic Molding Co. (1977), 47 Ill. App. 3d 146, 361 N.E.2d 848.

The title of the retrospective premium endorsement in the present case states that it includes “multiple lines” of insurance. According to the endorsement, it applies to “any policy listed in the schedule.” The policies listed in the schedule are workers’ compensation, employer’s liability, automobile liability coverage, and general liability coverage. The calculation of the retrospective premium is explained within the endorsement.

The amount of the retrospective premium depends on five standard elements and two elective elements. The five standard elements are the standard premium, the basic premium, incurred losses, converted losses, and taxes. The “standard premium” is the premium that Northbrook would charge during the policy period for the insurance, subject to the retrospective plan if Pre-Fab had not chosen the retrospective premium. Pre-Fab chose the application of two elective elements, the “excess loss” premium and the “retrospective development” premium. The “maximum retrospective premium factor” is 130% of the standard premium and the “minimum retrospective premium factor” is 56% of the standard premium.

The endorsement provided as follows:

“C. Retrospective Premium Formula.
Insurance policies listed in the Schedule will be combined with this policy to calculate the retrospective premium. If the policies provide insurance for more than one insured, the retrospective premium will be determined for all insureds combined, not separately for each insured.
1. Retrospective premium is the sum of basic premium, converted losses, and taxes, plus the excess loss premium and retrospective development premium elective elements if you chose them.
2. The retrospective premium will not be less than the minimum nor more than the maximum retrospective premium. The minimum and maximum retrospective premiums are determined by applying the minimum and maximum premium factors shown in the Schedule to the standard premium.
3. If this endorsement applies to more than one policy or state, the standard premium will be the sum of the standard premiums for each policy and state.”

C. The Parties’ Contrasting Applications of the Formula

Pre-Fab comes to its figure of $99,286 by calculating the minimum and maximum retrospective premium amounts separately for each line of insurance and then combining them to reach the final minimum and maximum retrospective premiums. In essence, the minimum and maximum premium factors are applied to the standard premium of each line of insurance and then they are combined. The trial court followed Pre-Fab’s methodology.

Northbrook argues that Pre-Fab’s contention — which the trial court accepted — contravenes the “plain and concise language” contained in the endorsement. Northbrook maintains that the retrospective premium endorsement does not indicate that there are to be three separate calculations — one for each line of insurance — of the minimum and maximum retrospective premiums. According to North-brook, the retrospective premium should be determined from a single standard premium which was calculated from all of the different lines of the insurance. Under this methodology, Pre-Fab would owe North-brook the amount of $386,167.

The difference between the parties’ methodologies is the timing of the calculation of the minimum and maximum retrospective premiums. Pre-Fab contends that the minimum and maximum retrospective premiums should be applied to the standard premium, and then calculated from the earned retrospective premium by line of insurance, and then combined to determine the final retrospective premium. If, for example, in the general liability line the losses were greater than 130% of the standard premium for that line, and the losses for each of the other two lines were less than 56% of the standard premium for each line, the retrospective premium would be the sum of the 130% of the standard premium general liability and 56% of the standard premium for the other two lines.

Northbrook contends that the minimum and maximum retrospective premiums should be calculated after the standard premiums from all lines of insurance have been calculated and combined. That is, the actual losses for all lines would be combined and if that amount exceeded 130% of the standard premium of all the lines combined, the retrospective premium would be 130% of that standard premium. If the actual losses were less than 56% of the standard premium of all the lines combined, the retrospective premium would be 56% of that standard premium.

Here, the timing of the calculation of the minimum and maximum retrospective premiums is important because for some lines of insurance the earned retrospective premium is less than the maximum retrospective premium. However, the total earned retrospective premium, not limited by the maximum retrospective premium calculated by line of insurance, exceeds the maximum retrospective premium as applied to the final standard premium. Consequently, the calculations under the parties’ methodologies differ by over $280,000.

The parties’ computation sheets are appended. A comparison of them indicates that Pre-Fab would apply the minimum and maximum retrospective premiums to the standard premium of each line of insurance and Northbrook would apply the minimum and maximum retrospective premiums to the final standard premium. Northbrook’s computation worksheet differs from Pre-Fab’s in that Northbrook inserts a “total” column for each element and its maximum retrospective premium is calculated as 130% of the total standard premium of all the lines of insurance combined. The total standard premium is $1,273,891, and the maximum retrospective premium calculated as 130% of the standard premium is $1,656,058. Pre-Fab’s calculation of the retrospective premium is calculated as 130% of the standard premium for each line of insurance, hence three separate figures are calculated for each time period and then combined. Similarly, North-brook’s minimum retrospective premium is calculated as 56% of the total standard premium for all lines of insurance combined, resulting in a single figure of $713,379. By contrast, Pre-Fab’s calculation is again by separate lines with three resultant figures for each time period which are then combined.

The circuit court, following Pre-Fab’s methodology, emphasized that the language of the retrospective endorsement formula contained a plural subject (“premiums”) and a plural verb (“are”) in the following sentence: “The minimum and maximum retrospective premiums are determined by applying the minimum and maximum premium factors shown in the Schedule to the standard premium.” (Emphasis added.) The circuit court held that the plural subject and verb indicated that there must be more than one minimum and maximum “premium.” Accordingly, it held that the minimum and maximum retrospective premiums are calculated for each line of insurance and then combined.

Northbrook contends, and we agree, that the word “are” is appropriately used in referring to two different premiums: the minimum and maximum. The verb refers to minimum and maximum, not to separate retrospective premium computations.

D. The Proper Application of the Formula

We conclude that the retrospective premium endorsement in the present case is unambiguous, and we also conclude that the contract requires calculation consistent with Northbrook’s methodology. Section C(2) of the retrospective premium reads in pertinent part, “the minimum and maximum retrospective premiums are determined by applying the minimum and maximum premium factors shown in the Schedule to the standard premium.” (Emphasis added.) Section C(3) correspondingly reads: “If this endorsement applies to more than one policy or state, the standard premium will be the sum of the standard premiums for each policy and state” (emphasis added). On the face of this endorsement, the “standard premium” to which the minimum and maximum premium factors are to be applied is defined as the sum of the standard premiums for each policy. Accordingly, we hold that the minimum and maximum retrospective premium factors are to be applied after one final standard premium is calculated from all the lines of insurance. This corresponds with Northbrook's contentions; it also permits the language of section C(3) to be given some effect.

■ In essence, through the endorsement, Northbrook is pooling its bottom line risk from all the lines of insurance by applying the minimum and maximum retrospective premiums to one total standard premium. This permits the insured to have the benefit of drawing on those lines wherein its actual losses were less than those reflected in the standard premium. It also permits the insured to compensate for excessive losses in one or more other lines, but not to claim a windfall via the formula advanced by Pre-Fab.

To hold otherwise could lead to perverse results. For example, if there is a retrospective endorsement covering three lines of insurance, each with a separate standard premium of $100,000, and if one line of insurance suffers unexpectedly high losses of $500,000 and the other two lines each suffer losses of $50,000, by applying the minimum and maximum retrospective premium factors of 56% and 130% respectively from the present case to each line of insurance as PreFab argues, the retrospective premium would be less than the standard premium. That is, 130% of the $100,000 standard premium for the line of insurance that suffered high losses is $130,000 and the 56% to be applied to the $100,000 for the other two lines of insurance which suffered $50,000 in losses respectively would be $56,000 per line. Consequently, the retrospective premium of $242,000 would be less than the $300,000 standard premium for the three lines of insur-anee even though the actual losses were $600,000. Under the methodology the court adopts today, the retrospective premium would be $390,000, which is 130% of the $300,000 standard premium. This retrospective premium reflects the enormous total losses of $600,000. The insured would still be protected under this methodology as it would pay only a total of $390,000, even though its actual total losses were $600,000. However, the $390,000 would reflect a true maximum retrospective premium which would be appropriate in a situation where the actual losses were twice the standard premium.

A similar situation existed in the present case. But for the 130% maximum retrospective premium, the retrospective premium owed by Pre-Fab to Northbrook based on the actual losses would have been approximately $1,900,000. However, because the maximum retrospective premium that Pre-Fab must pay is 130% of the standard premium of $1,273,891, the maximum retrospective premium is $1,656,058. As Pre-Fab has already paid the standard premium of $1,273,891, it owes Northbrook $382,167.

Nothing we have said here should be interpreted as discouraging the insurance industry from developing policy provisions written in more clear and understandable language. The policy provisions at issue in this case tend to confirm the public’s worst fears that insurance policy English is to English as military music is to music. If insurance companies would put some initial effort in drafting such policies so that they would truly and realistically explain their coverage (perhaps even using examples to show what the coverage would be in certain situations) instead of seeking to be protectively opaque in meaning — or so the drafters think — then those companies would avoid the uncertainty and expense of litigation like this case.

III. Conclusion

For the reasons stated, we reverse the judgment of the circuit court and direct the entry of judgment in favor of Northbrook for $382,167.

Reversed and remanded with directions.

KNECHT and LUND, JJ., concur.


text:
    THOMAS V. CASSIDY, Plaintiff-Appellant, v. JAMES R. KENTNER, Defendant-Appellee.
    Third District
    No. 3-91-0458
    Opinion filed September 16, 1992.
    Rehearing denied November 3,1992.
    Thomas V. Cassidy, of Atlanta, Georgia, appellant pro se.

    Robert P. Schmidt, of Behrends & Gentry, of Peoria (Richard N. Gentry, Jr., of counsel), for appellee.
   JUSTICE HAASE

delivered the opinion of the court;

The plaintiff, Thomas Cassidy (Cassidy), is an attorney who represented the defendant, James Kentner (Kentner), in several legal matters. Kentner was unable to pay Cassidy the full amount of his legal fees in advance. To secure the debt, Cassidy allowed Kentner to execute a promissory note in lieu of cash payment. Following the resolution of his legal problems, the defendant moved to Florida and filed bankruptcy. The defendant listed the plaintiff as a creditor and notice was sent to the plaintiff by the bankruptcy court. The plaintiff signed and returned an acknowledgment to the court and the defendant’s obligation to the plaintiff was discharged. The plaintiff then brought the present action to collect on the note. The trial court dismissed the action. The court ruled that the debt was discharged and could not form the basis of a suit. The plaintiff appeals. The plaintiff argues that he did not receive proper notice of the bankruptcy proceedings and that the bankruptcy court failed to follow applicable Federal bankruptcy laws in discharging the debt.

Plaintiff raises several other issues. Based on our view of this case, the real issue is one of jurisdiction to review orders of Federal bankruptcy courts. Based upon that and our view that we do not have jurisdiction to review the decisions of Federal bankruptcy courts, we will not deal with the other issues raised by plaintiff in this appeal. In our view, even if the plaintiff’s contentions were true, the trial court did not err in dismissing the plaintiff’s complaint.

Article VI of the Constitution of the United States of America provides that “[T]he laws of the United States which shall be made in Pursuance thereof *** shall be the supreme Law of the Land; and the Judges of every State shall be bound thereby ***” (U.S. Const., art. VI). It is well established that sole jurisdiction in bankruptcy is lodged in the national government and that power is paramount and supersedes all inconsistent State laws. By statute, Congress has vested the Federal bankruptcy courts with exclusive jurisdiction in all matters pertaining to bankruptcy. (28 U.S.C. §1334 (1988) provides “(a) Except as provided in subsection (b) of this section, the district courts shall have original and exclusive jurisdiction of all cases under title 11.”) (See In re Chicago Rapid Transit Co. (7th Cir. 1942), 129 F.2d 1, cert. denied sub nom. Chicago Junction R.R. Co. v. Sprague (1942), 317 U.S. 683, 87 L. Ed. 547, 63 S. Ct. 205.) It is clear that this court lacks any power to review the correctness of the rulings of a Federal bankruptcy court.

Our review of the record establishes that the trial judge’s decision on the real factual question that he had before him was that there had been a discharge in the bankruptcy proceedings of the debt involved in the case. That finding was not against the manifest weight of the evidence. A trial judge’s ruling on a disputed issue of fact will only be reversed if it is against the manifest weight of the evidence. The trial court’s ruling was correct on the only factual issue properly before it.

Plaintiff’s claim that errors were committed in the bankruptcy proceedings can be reviewed only by a court appointed by Congress to review such decisions. This means that the plaintiff’s contentions of error may only be heard by the appropriate Federal court of review. To allow a State court to entertain a collateral attack of a Federal bankruptcy judgment would violate the supremacy clause of the U.S. Constitution.

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

Affirmed.

SLATER and STOUDER, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MATTHEW ALVARADO, Defendant-Appellant.
    Third District
    No. 3—91—0768
    Opinion filed September 29, 1992.
    Robert Agostinelli, of State Appellate Defender’s Office, of Ottawa, for appellant.
    William Herzog, State’s Attorney, of Kankakee (John X. Breslin and Jay P. Hoffmann, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE HAASE

delivered the opinion of the court:

The trial court convicted the defendant, Matthew Alvarado, of criminal sexual assault and unlawful restraint (Ill. Rev. Stat. 1989, ch. 38, pars. 12 — 13, 10 — 3). He was thereafter sentenced to 12 years of imprisonment for criminal sexual assault and a concurrent three-year term of imprisonment for unlawful restraint. He appeals, and we affirm.

On appeal, the defendant argues that his conviction for unlawful restraint should be vacated because it was based on the same physical act as the criminal sexual assault. In the alternative, he contends that it should be vacated because it is a lesser included offense of criminal sexual assault.

Unlawful restraint is not necessarily a lesser included offense of criminal sexual assault. (See People v. Jackson (1990), 203 Ill. App. 3d 1, 560 N.E.2d 1019.) While the offense of unlawful restraint is often committed in conjunction with other offenses, it is punishable as a separate crime if the restraint is independent of the other offenses and arose out of separate acts. People v. Leonhardt (1988), 173 Ill. App. 3d 314, 527 N.E.2d 562.

In the case at hand, the record shows that the defendant, in addition to physically restraining the victim during the sexual assault, also committed two separate acts of unlawful restraint. At trial, it was established that the defendant was driving a car in which the victim was the sole passenger. While driving the victim home, he stopped the car on a deserted road and told her they needed to talk about their relationship. When she said she was tired, wanted to go home,, and refused to discuss the matter, the defendant grabbed her around the neck and choked her. Thereafter, the defendant released her, and when she asked him to take her home, he drove to another secluded area and sexually assaulted her.

After the sexual assault, the defendant drove to his grandfather’s house. Once there, the victim jumped out of the car and ran up to the front door. The defendant caught her and physically prevented her from entering the house. She managed to escape from his grasp, ran to the car, and drove away.

Based on these facts, we find that the record supports the defendant’s convictions for both criminal sexual assault and unlawful restraint. As the record clearly indicates, the convictions were based upon separate, independent acts which were not closely related. There was no evidence that the defendant’s initial choking of the victim was in any way related to his later rape of her. In addition, his final restraint of the victim at his grandfather’s home was not related to the sexual assault, since its sole purpose was to prevent her from entering the house.

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

Affirmed.

McCUSKEY and STOUDER, JJ., concur.


author: JUSTICE CHAPMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SCOTT A. TICE, Defendant-Appellant.
    Fifth District
    No. 5-91-0779
    Opinion filed October 7, 1992.
    Daniel M. Kirwan and Lawrence J. O’Neill, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Michael Kiley, State’s Attorney, of Shelbyville (Norbert J. Goetten, Stephen E. Norris, and Gerry R. Arnold, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE CHAPMAN

delivered the opinion of the court:

On October 10, 1989, defendant Scott Tice entered an open plea of guilty to three counts of unlawful delivery of a controlled substance which, because of the amounts involved, represented a Class X felony, a Class 1 felony and a Class 2 felony. He was also convicted of one count of armed violence, a Class X felony. The armed violence charge was predicated on the Class 1 felony count of unlawful delivery of a controlled substance. Defendant received a sentence of eight years and a $12,500 fine on the Class X unlawful delivery charge. He was sentenced to five years on the Class 1 unlawful delivery charge, seven years on the Class 2 unlawful delivery charge, and four years on the armed violence charge. He was also required to make restitution of $460 to the State of Illinois, Department of State Police. He did not appeal.

On June 17, 1991, defendant filed a pro se post-conviction petition pursuant to the Post-Conviction Hearing Act (Ill. Rev. Stat. 1991, ch. 38, par. 122 — 1 et seq.). He claimed, inter alia, that he was denied the effective assistance of trial counsel in violation of substantial due process and his sixth amendment right to counsel in that the convictions and sentences were entered on two crimes that arose from the same act. The trial court dismissed the petition as patently without merit pursuant to section 122 — 2.1 of the Post-Conviction Hearing Act (Ill. Rev. Stat. 1991, ch. 38, par. 122 — 2.1). Defendant appeals from the order dismissing his petition without an evidentiary hearing.

The State argues that the defendant waived his ineffective assistance of counsel claim because he did not file a direct appeal. The defendant argues that it was error for the circuit court to dismiss his post-conviction petition because it presented a meritorious constitutional claim for relief. We reverse.

The defendant did not lose his right to a post-conviction petition hearing by failing to appeal. Although he waived those rights based on nonconstitutional error, the Post-Conviction Hearing Act protects his right to assert violations of his constitutional rights. (People v. Rose (1969), 43 Ill. 2d 273, 279, 253 N.E.2d 456, 461.) A post-conviction petitioner who has not taken a direct appeal may raise, in his post-conviction petition, every constitutional issue which “appears in or is suggested by the record.” (People v. Eatmon (1970), 47 Ill. 2d 90, 92, 264 N.E.2d 194, 195.) In addition, where a defendant-petitioner is proceeding pro se, a court may elect to consider his post-conviction petition allegations on the merits, even though failure to appeal might have constituted a waiver of the asserted errors. (People v. Goerger (1972), 52 Ill. 2d 403, 406, 288 N.E.2d 416, 418.) Finally, this court has held that where a defendant is convicted for both armed violence and the underlying felony and a single physical act is the basis for both offenses, the underlying felony conviction is void and may be attacked at any time. (People v. Johnson (1990), 200 Ill. App. 3d 1018, 1022, 558 N.E.2d 607, 610.) Therefore, defendant may raise his ineffective assistance of counsel claim in this post-conviction petition. He has not waived that right.

A post-conviction proceeding is not an appeal. It is a collateral attack on the judgment. (People v. Owens (1989), 129 Ill. 2d 303, 308, 544 N.E.2d 276, 277.) It provides a remedy for criminal defendants who claim substantial violations of their constitutional rights occurred at trial. (Owens, 129 Ill. 2d at 308, 544 N.E.2d at 277.) A defendant does not have an absolute right to an evidentiary hearing on a post-conviction petition. Instead, the defendant must establish a substantial denial of his constitutional rights before a hearing will be granted. (People v. Henderson (1991), 215 Ill. App. 3d 24, 28, 574 N.E.2d 268, 272.) The trial court, in its discretion, may deny an evidentiary hearing on a post-conviction petition if the petition is frivolous or patently without merit. Ill. Rev. Stat. 1991, ch. 38, par. 122 — 2.1(a).

Because defendant proceeded pro se, his petition, in order to adequately State a claim for relief, was required to contain a simple statement which presented a claim for relief that was meritorious when considered in light of the trial court record. (People v. Dredge (1986), 148 Ill. App. 3d 911, 913, 500 N.E.2d 445, 447.) Defendant’s post-conviction petition meets this standard. It states that he was denied effective assistance of counsel because he was convicted and sentenced for two crimes based on one act. There is support in the record for this contention. Accordingly, an evidentiary hearing is required to determine (1) whether defendant was improperly convicted and sentenced for both the armed violence charge and the underlying felony charge, unlawful delivery of a controlled substance; (2) whether defendant’s trial counsel was objectively deficient because he failed to object to defendant’s two sentences on two convictions based on a single act; and (3) whether the defendant was prejudiced by trial counsel’s failure to do so. Strickland v. Washington (1984), 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064 (defendant bears the burden of proving that trial counsel was both objectively deficient and that he was prejudiced by these deficiencies).

It is well settled in Illinois that “multiple convictions for both armed violence and the underlying felony cannot stand where a single physical act is the basis for both charges.” (People v. Donaldson (1982), 91 Ill. 2d 164, 170, 435 N.E.2d 477, 479.) A defendant who is improperly convicted and sentenced on both an armed violence charge and its underlying felony is prejudiced. (Donaldson, 91 Ill. 2d at 170, 435 N.E.2d at 479.) This court has held that when improper multiple convictions are entered for armed violence and its underlying felony, the underlying felony is void and must be vacated. People v. Johnson (1990), 200 Ill. App. 3d 1018, 1022, 558 N.E.2d 607, 610.

In view of these holdings and of the fact that defendant adequately raised this issue in his post-conviction petition, he is at least entitled to a hearing on his claim. It was error for the trial court to dismiss defendant’s petition without an evidentiary hearing.

Defendant also argues that he is alternatively entitled to a hearing because his petition was neither dismissed nor docketed for further consideration within 30 days of the date of filing as required by the Post-Conviction Hearing Act. (Ill. Rev. Stat. 1991, ch. 38, par. 122 — 2.1(a).) Our decision to grant defendant an evidentiary hearing is not, however, based on this argument.

We reverse and remand to the trial court for an evidentiary hearing to determine (1) whether defendant was improperly convicted and sentenced for both the armed violence charge and the underlying felony; and (2) whether defendant’s trial counsel was objectively deficient because he failed to object to defendant’s two sentences on two convictions based on a single act. Defendant’s request for court-appointed counsel for this post-conviction petition is to be determined by the trial court.

Reversed and remanded.

H. LEWIS and W.A. LEWIS, JJ., concur.