author: JUSTICE LEWIS

text:
    CATERPILLAR TRACTOR COMPANY, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Donald L. Hughes, Appellee).
    Fourth District (Industrial Commission Division)
    No. 4—90—0159WC
    Opinion filed June 5, 1991.
    Rehearing denied July 31, 1991.

      Forrest D. Serblin, of Peoria, for appellant.
    G. Douglas Stephens, of Peoria, for appellee.
   JUSTICE LEWIS

delivered the opinion of the court:

Claimant, Donald Hughes, filed an application for adjustment of claim pursuant to the Workers’ Compensation Act (Ill. Rev. Stat. 1981, ch. 48, par. 138.1 et seq.) for injuries to his right arm and shoulder which arose out of and in the course of his employment for the respondent, Caterpillar Tractor Company. An arbitration hearing was held on the claimant’s application on May 16, 1986, following which the arbitrator held that the claimant failed to prove that his accidental injuries arose out of and in the course of his employment on May 2, 1980, and denied him benefits. On review before the Industrial Commission (Commission), the Commission reversed the arbitrator’s decision, finding that the claimant’s injuries arose out of and in the course of his employment under a repetitive trauma theory. The Commission awarded the claimant temporary total disability for 13% weeks and permanent partial disability for 25% loss of the use of his right arm. Subsequently, the circuit court confirmed the Commission’s decision, and the respondent appeals.

On appeal, the respondent initially contends that the Commission improperly granted the claimant benefits under a repetitive trauma theory as the Commission considered this theory sua sponte for the first time on review. Secondly, the respondent claims that the Commission’s decision that the claimant’s injuries arose out of and in the course of his employment was against the manifest weight of the evidence. Before considering these issues, a statement of the facts is necessary.

The only testimony presented at the arbitration hearing was presented by the claimant. He testified that he had been employed by the respondent since May 7, 1973. On May 2, 1980, he was working as a shell machine operator, a job he had performed for approximately one year. Prior to his work as a shell machine operator, the claimant had worked as a pneumatic chipper for 5% years. The claimant’s work as a chipper had entailed the use of an air hammer to clean the “fins” and dirt from castings. His duties as a shell machine operator involved picking up cores for engine blocks by a hoist, pulling the cores around an overhead track, setting the cores down on another track, and pushing the cores down the line about 30 feet. The cores weighed over 100 pounds, and the claimant picked up and moved approximately 300 to 350 cores per day. The work performed by the claimant required a “lot of pushing and pulling and hoisting” of piece parts and required the claimant to work with his arms overhead. The claimant also picked up and placed smaller cores by hand onto the other track.

On May 2, 1980, the claimant experienced extreme pain in his right shoulder, and his right arm went numb. The claimant went to the respondent’s first aid station and sought treatment. The claimant told the first aid personnel that his right shoulder was hurting from “pulling and pushing on the hoist.” At that time, the first aid personnel treated the claimant’s right shoulder with heat packs. The claimant testified that he also saw the respondent’s doctor in May 1980 for his right shoulder.

According to the claimant, prior to May 2, 1980, he had trouble with his right shoulder for a number of years, and, in the year immediately preceding May 2, 1980, he sought treatment for his hands and shoulders from the respondent’s first aid station on numerous occasions. The treatments administered by the respondent’s doctor and nurse were whirlpool baths for his hands and heat packs for his shoulders.

In addition to the treatment from the respondent’s first aid station, in March 1980 the claimant sought treatment for his right shoulder from an outside doctor, Dr. David Conners. In March 1980, the claimant’s right arm was painful and tended to “go numb” frequently. The claimant again saw Dr. Conners shortly after May 2, 1980. At that time, Dr. Conners recommended surgery on his right shoulder.

The claimant underwent surgery to his right shoulder in September 1980. From May 2, 1980, until his surgery on September 4, 1980, the claimant continued to work at his job as a shell machine operator; however, he received heat pack treatments on his right shoulder from the respondent’s first aid station almost daily. The treatment with heat packs soothed his pain temporarily, but, when he resumed his work and used his shoulder, his pain returned.

After the claimant’s surgery to his right shoulder in September 1980, he received physical therapy for four to six weeks. The claimant subsequently returned to work on December 8, 1980, with the restrictions that he not lift more than 40 pounds and that he not do overhead work. The claimant continued to work; however, he was laid off in November 1984 and was not working at the time of arbitration because of his layoff.

The claimant testified that he continues to suffer from pain in his right shoulder, but his surgery had relieved his pain somewhat. Additionally, if the claimant lifts his right arm too high, i.e., raises his elbow a little higher than his shoulder, he would experience a sharp pain in his shoulder and his shoulder would “give way.” The claimant further stated that if he uses his right arm too much, e.g., if he mows the lawn with the lawn mower, his right arm becomes numb, and he has trouble sleeping that night.

On cross-examination, the claimant admitted that he had surgery for bilateral carpal tunnel syndrome in 1978, for which he filed a workers’ compensation claim. At that time, the claimant received benefits for a 15% loss of use of each hand. It was due to this disability that the claimant was taken off the chipper job and was given the job as a shell machine operator. The claimant further admitted that he had been having complaints with his shoulder since 1976, after working 2% years as a chipper. The claimant stated that the doctor told him he had osteoarthritis in his shoulder joint. The claimant denied that he told the respondent’s first aid personnel and Dr. Conners that he had not had an injury to his shoulder.

The only other evidence presented at the arbitration hearing was the medical records of Methodist Hospital, the medical notes of Dr. Conners, the medical records from the respondent’s first aid station, and weekly disability forms completed by the claimant. The medical records from the respondent’s first aid station consisted of the following: On April 1, 1980, the nurse wrote that the claimant had been to the first aid station on March 27, 1980. The nurse’s note indicated that the claimant had been having trouble with his right shoulder for the past month, and that the claimant had seen Dr. Conners the previous day (March 26, 1980). At that time, the doctor told him that he had arthritis and a “bad joint” in his shoulder. The nurse’s note also stated that the claimant told her he knew of no injury to his shoulder.

The respondent’s doctor’s note of April 7, 1980, reported that the claimant complained of discomfort in his right AC (acromioclavicular) joint when his shoulder was put through a range of motion for his shoulder and also when pressure was applied to the AC joint. The doctor noted that the claimant is left-handed, but that he used his right hand to guide the hoist. The doctor diagnosed the claimant as having arthritis in his right shoulder and indicated in his note that the claimant’s problems with his shoulder were not related to his occupation.

Another note written on April 30, 1980 (the record does not clearly indicate whether this note was written by the respondent’s doctor or nurse as the note was initialled, although the ending initials appear to be M.D.), indicated that the claimant saw Dr. Conners on April 16, 1980, and that the claimant was again told he had arthritis of the right shoulder. The note further indicated that the claimant’s right hand and shoulder bothered him when working with his hand overhead.

The medical note from the respondent’s first aid station of May 8, 1981, indicated that the claimant still complained of pain in his right shoulder, arm, and hand because of his work. Another note entered on May 29, 1981, reported that the claimant had seen Dr. Conners on May 27, 1981, and that Dr. Conners had placed a 40-pound weight-lifting restriction on the claimant. A retum-to-work slip dated May 27, 1981, from Dr. Conners indicated that the claimant could do light work, i.e., work that did not aggravate his right shoulder.

A retum-to-work pass, executed by the respondent’s doctor, corroborated the claimant’s testimony that he returned to work on December 8, 1980. Another report from Dr. J.R. Barron, medical director for the respondent, dated January 11, 1982, stated that the claimant was released to full work duties as of that date. Dr. Barron’s report further indicated that Dr. Conners had removed the 40-pound weightlifting restriction which the doctor had placed on the claimant on May 29,1981.

Dr. Conners’ records revealed that he had seen the claimant in March 1977, at which time the doctor’s examination indicated that the claimant had bilateral carpal tunnel syndrome. The doctor ordered tests for the carpal tunnel syndrome and also indicated that the claimant was to “undergo an arthritis profine [sic].” In June 1977, the doctor found that the claimant’s test results confirmed his diagnosis of carpal tunnel syndrome. The doctor also stated that the claimant “has had some problems with painful shoulders after working,” and he placed the claimant on physical therapy for this. The doctor also saw the claimant in August and September 1977.

In April 1978, the doctor’s notes indicated that the claimant continued to have problems with pain in his right shoulder, and because of this, Dr. Conners thought the claimant “should return and be seen by Dr. Shah for evaluation and treatment for the bursitis.”

Dr. Conners saw the claimant again in July, August, and September 1978. The primary focus of the doctor’s notes on those occasions was the claimant’s carpal tunnel syndrome. At some point between the July and August visits, the claimant had undergone surgery for this problem.

The next visit documented in the doctor’s notes was on March 26, 1980, at which time the claimant saw the doctor for the pain in his right shoulder. Dr. Conners stated in his note of that date as follows:

“Has had some pain involving his right shoulder especially when required to work overhead. Exam demonstrates some crepitation of the right acromioclavicular joint with abduction. X-rays demonstrate rather marked osteoarthritis of this joint. The patient does not recall any injury to this area in the past, however, it was explained to him that at some point he most likely did injure this and now the problem is being aggravated with working overhead. At this time he was told that he should attempt to find work that did not require overhead forceful use of the arm.”

Two subsequent entries in the doctor’s notes, on April 16, 1980, and on May 12, 1980, indicated that on those respective dates a “To Whom It May Concern” letter was sent on behalf of the claimant, and a copy of the doctor’s office notes of March 26, 1980, was sent to the respondent.

The next office visit by the claimant was on August 25, 1980, at which time the claimant continued to have considerable pain in his right shoulder. The doctor stated in pertinent part in this note as follows:

“He states that this [right shoulder] is painful even at rest and is especially aggravated by any use of the arm. Exam is essentially unchanged with crepitation over the right AC joint and x-rays [sic] demonstrate rather marked osteoarthritis.”

The doctor advised claimant that surgery could be performed, but the doctor warned the claimant surgery occasionally does not provide any benefits; however, the claimant decided to have surgery. The doctor told the claimant that if the surgery were unsuccessful, he may have to change his type of employment. The subsequent notes made by the doctor were of the claimant’s follow-up examinations after his surgery.

Two letters from Dr. Conners were also admitted into evidence. The first letter was the “To Whom It May Concern” letter documented in the doctor’s notes. This letter, dated April 16, 1980, indicated that the claimant had recurrent problems with pain in his shoulder, especially when working overhead. It was advised that another type of work should be found for the claimant which did not require overhead work. The other letter admitted was a letter to Dr. Barron dated May 29, 1981. In this letter, Dr. Conners indicated that the claimant had surgery on his right shoulder. Dr. Conners stated that “X-rays and clinical exam demonstrate that his status is essentially unchanged. However, as was stated previously, this shoulder may be aggravated by his performing heavy lifting with the right upper extremity especially if this is overhead.” Dr. Conners suggested that the claimant’s work be modified so as not to aggravate his problem.

The medical records of Methodist Hospital confirmed that the claimant had decompression surgery for his bilateral carpal tunnel syndrome on August 14, 1978, and that his prognosis was good following the surgery. Additionally, the medical records of the claimant’s surgery to his right shoulder were admitted into evidence. These records indicated that on September 8, 1980, the claimant underwent surgery wherein excision of the distal end of the right clavicle was performed. The report of the operation stated: “Examination of the AC joint demonstrated that there was complete destruction of the cartilaginous surface with calcification of the meniscus.” Both the preoperative and postoperative diagnosis of the claimant’s condition was osteoarthritis of the right AC joint.

Lastly, the claimant offered into evidence weekly disability forms and corresponding physician’s forms provided by the respondent which the claimant and Dr. Conners had completed. The first form completed by the claimant was dated September 7, 1980, and, on this form, the claimant gave the date of the accident as April 22, 1980. The claimant described the accident as follows: “excessive lifting and over head [sic] working while running [the] shell machine.” The corresponding physician’s report gave the diagnosis of the claimant’s condition as “Right shoulder acromioclavicular joint, degenerative joint disease.” The doctor did not answer the question on the form as to whether the claimant’s disability was caused by an injury at work. The second disability form completed by the claimant on December 1, 1980, gave March 12, 1980, as the date of accident. The description of the accident given by the claimant on this form was: “[d]ue to excessive lifting and over head [sic] work.” The corresponding physician’s form completed by Dr. Conners gave the same diagnosis as the previous form and, once again, the doctor did not answer the question as to whether the claimant’s disability was caused by an injury at work.

Following this evidence, the arbitrator found that the claimant was 31 years of age at the time of his injury and that the claimant failed to trace the onset of his right shoulder complaints to an accident on May 2, 1980. Therefore, the arbitrator held that the claimant failed to prove that his injuries arose out of and in the course of his employment and denied him benefits. As noted previously, the Commission, without considering additional evidence, reversed the decision of the arbitrator and found that the claimant’s injuries arose out of and in the course of his employment on March 26, 1980, under a repetitive trauma theory. Subsequently, the Commission’s decision was confirmed by the circuit court.

The first issue raised by the respondent on appeal is that the Commission improperly granted the claimant benefits under a repetitive trauma theory. The respondent argues that the Commission’s decision was improper as the claimant did not present this theory at arbitration and as the Commission sua sponte considered this theory for the first time on review. It is the respondent’s contention that the claimant’s theory at arbitration was that his injuries arose as a result of a specific accident on May 2, 1980, the date of accident given in the claimant’s application for adjustment of claim, and that the claimant did not successfully prove this theory. The respondent further argues that the claimant failed to present additional evidence before the Commission and failed to amend his application for adjustment to claim to conform with a repetitive trauma theory and that the claimant should not be able to prevail under this theory.

Similarly, because the Commission found that the claimant’s injuries arose out of and in the course of his employment under a repetitive trauma theory, the respondent claims it was prejudiced as the evidentiary requirements for defending a repetitive trauma theory are different than those required to defend a specific accident theory, and it was not given an opportunity to counter the repetitive trauma theory. The respondent cites General Telephone Co. v. Industrial Comm’n (1988), 167 Ill. App. 3d 420, 521 N.E.2d 287, in support of its contention that the claimant could not introduce a new theory of recovery at the review hearing before the Commission.

Initially, it must be noted that the case relied upon by the respondent is not dispositive of this issue. In General Telephone Co., the claimant attempted to introduce a new theory of recovery (repetitive trauma) before the appellate court for the first time. Additionally, in General Telephone Co., there was no evidence presented that the claimant had any problems, i.e., prior back pain, before the date given as his date of injury. Here, the repetitive trauma theory was discussed for the first time by the Commission in its decision as opposed to being considered for the first time before the appellate court. Secondly, as will be considered later in this opinion, there was evidence presented of the claimant’s prior problems with his right shoulder before the date of the alleged accident which could support a repetitive trauma theory and evidence presented that it was the repetitive motions of the claimant’s work which had caused his injury. Therefore, General Telephone Co. is not helpful in resolving this issue. Furthermore, our research has not turned up any case on point; therefore, it appears that this issue is one of first impression in Illinois.

We now consider whether the Commission can consider a new theory of recovery for the first time in a case on review. In this regard it is well established that, although a case brought before the Commission is in essence an appeal, it is also clear that the Commission has original jurisdiction in cases which come before it. (Orkin Exterminat ing Co. v. Industrial Comm’n (1988), 172 Ill. App. 3d 753, 526 N.E.2d 861.) Because of this, the Commission is not bound by the arbitrator’s findings, even where the Commission merely reviews the evidence presented at arbitration. (Orkin Exterminating Co., 172 Ill. App. 3d 753, 526 N.E.2d 861.) Since the Commission has original jurisdiction and can consider new evidence not presented before an arbitrator, the Commission can, unlike the appellate court, consider a new theory of recovery in a case brought on review. However, this determination does not bring our analysis of this issue to an end.

The next consideration must be under what circumstances the Commission can consider a new theory of recovery on review, i.e., must the claimant amend his application for adjustment of claim to reflect the actual theory of recovery in order for the Commission to consider it, or may the Commission consider a new theory sua sponte. The respondent’s position is that a claimant’s award must be restricted to the theory of recovery alleged in his application. The respondent likens an application for adjustment of claim to pleadings in a civil case, wherein a claimant presents the theory of recovery under which he is proceeding, and the opposing party is made aware of what evidence he must present to defend his position. While an application has been held to be “in the nature of a pleading” (Fleming v. Industrial Comm’n (1983), 95 Ill. 2d 329, 335, 447 N.E.2d 819, 821), and, as such, can be liberally amended, the applicable rules for an application for adjustment of claim are not as formal as the rules for pleadings. (Fleming, 95 Ill. 2d 329, 447 N.E.2d 819.) Additionally, an amendment of an application for adjustment of claim has been allowed where the amendment was to conform the pleadings to proof presented in the record. (McLean Trucking Co. v. Industrial Comm’n (1983), 96 Ill. 2d 213, 449 N.E.2d 832; Reliance Elevator Co. v. Industrial Comm’n (1988), 171 Ill. App. 3d 18, 524 N.E.2d 1022.) Thus, it is clear that had the claimant attempted to amend his application for adjustment of claim to reflect a repetitive trauma theory at any time before the Commission entered its final decision, he would have been permitted to do so; however, as the respondent correctly notes, this the claimant did not do. Therefore, our next consideration must be whether the Commission can consider a new theory of recovery sua sponte.

It has been stated in Larson as follows:

“Compensation procedure is generally as summary and informal as is compatible with an orderly investigation of the merits. This applies to pleadings, process, hearings, awards and appeals, although time periods for appeal are strictly enforced in many jurisdictions. Moreover, when the rule whose relaxation is in question is more than a merely formal requirement and touches substantial rights of fair play, no relaxation is justified; such a rule is that forbidding the raising on appeal of an issue that has not been raised below.” (2B A. Larson, Workmen’s Compensation Law §77A.OO, at 15 — 1 (1989).)

Larson goes on to state:

“The adjective law of workmen’s compensation, like the substantive, takes its tone from the beneficient and remedial character of the legislation. Procedure is generally summary and informal. *** The whole idea is to get away from the cumbersome procedures and technicalities of pleading, and to reach a right decision by the shortest and quickest possible route. On the other hand, as every lawyer knows, there is a point beyond which the sweeping-aside of ‘technicalities’ cannot go, since evidentiary and procedural rules usually have an irreducible hard core of necessary function that cannot be dispensed with in any orderly investigation of the merits of a case.” (2B A. Larson, Workmen’s Compensation Law §77A.10, at 15 — 1 through 15 — 5 (1989).)

It is also set forth in Larson that:

“In pleadings under a compensation act, calling things by wrong names, or bringing a petition under a wrong title, or making other harmless mistakes as to details such as dates, are immaterial if the intention of the pleading is clear.” (2B A. Larson, Workmen’s Compensation Law §77A.42, at 15 — 27 through 15-31 (1989).)

We lastly note that Larson states that:

“As to variance between pleadings and proof, wide latitude is allowed.” (2B A. Larson, Workmen’s Compensation Law §77A.45, at 15-41 (1989).)

From the foregoing passages, it is clear that the pleadings and the proceedings in workers’ compensation cases are informal and are designed to expedite and to achieve a right result. Thus, the Commission must decide a case on the evidence presented and on the merits of the case before it and must not be restricted to the information provided on a form. The Commission’s decision in the instant case was properly decided on the evidence admitted and not on a specific theory presented. While a Commission must decide a case on its merits, it is also clear that a party’s substantial rights must not be prejudiced by the Commission’s relaxation of its requirements.

In the case sub judice, it seems that to reverse outright the Commission’s decision because it considered a repetitive trauma theory without that theory being presented by either party would not be fair to the claimant, as the evidence (as will be discussed later) indicated that the claimant was injured through the repetitive motions of his work and supported a repetitive trauma theory. On the other hand, to obligate the respondent for the claimant’s benefits without giving the respondent an opportunity to defend its position under that theory may be construed as being prejudicial to the respondent’s substantial rights. However, under the facts of this case, we find that the respondent’s substantial rights were not unduly prejudiced by the Commission’s determination that the claimant was entitled to benefits under a repetitive trauma theory. Dr. Conners’ medical notes of March 26, 1980, which were provided to the respondent prior to the arbitration hearing, sufficiently alerted the respondent that it was the claimant’s repetitive overhead work with his right arm which aggravated his preexisting condition. Furthermore, the respondent was in possession of the weekly disability forms completed by the claimant in which he stated that it was the repetitive nature of his work which was responsible for his injury. Thus, the respondent was aware of this evidence of repetitive trauma, but the respondent failed to refute these facts despite the advance knowledge of this evidence. Therefore, reversal of the Commission’s decision is not mandated since the respondent was not prejudiced where it had an opportunity to counter the claimant’s evidence and did not do so.

It should be noted that the claimant’s failure to amend his application for adjustment of claim may possibly be explained (besides the obvious explanation that amendment of an application is not possible after the Commission has entered a final decision) by the timing of this case. The claimant filed his application for adjustment of claim in 1981. The arbitration hearing was not held until 1986, and the Commission’s decision was not entered until 1988. The principles of the repetitive trauma theory of recovery were presented in the case of Peoria County Belwood Nursing Home v. Industrial Comm’n (1987), 115 Ill. 2d 524, 505 N.E.2d 1026. Thus, it is apparent that the arbitrator’s decision came before the decision in Peoria County Belwood Nursing Home, while the Commission’s decision came after that decision.

The respondent’s next contention is that the Commission’s decision that the claimant’s injuries arose out of and in the course of his employment under a repetitive trauma theory was against the manifest weight of the evidence. The law is well established that the Commission’s decision will not be overturned on review unless its determination is against the manifest weight of the evidence. (General Electric Co. v. Industrial Comm’n (1989), 190 Ill. App. 3d 847, 546 N.E.2d 987.) Additionally, even if an employee suffers from a preexisting condition, he will not be precluded from receiving an award if it is shown that the claimant’s condition was aggravated or accelerated by his employment. (General Electric Co., 190 Ill. App. 3d 847, 546 N.E.2d 987.) This has been held to be so even in a case where the preexisting condition was aggravated by the repetitive nature of the employment. (General Electric Co., 190 Ill. App. 3d 847, 546 N.E.2d 987.) However, a claimant is still required, under a repetitive trauma theory, to show that his injury is work related and not the result of a normal degenerative aging process. General Electric Co., 190 Ill. App. 3d 847, 546 N.E.2d 987.

Here, the evidence presented by the claimant was sufficient to support the Commission’s decision. The claimant’s testimony established that for a year prior to May 2, 1980, he performed a job which required him to push or pull with his right hand overhead a 100-pound object over 300 times a day. This evidence was unrebutted and was certainly sufficient to show the repetitive nature of his work. The claimant also testified that his right shoulder problems had existed for some time before March or May 1980.

The medical evidence presented, i.e., the medical notes of Dr. Conners and a letter written by him, indicated that the claimant’s overhead work aggravated his preexisting condition. This evidence was also unrebutted. (The only evidence presented by the respondent was Dr. Conners’ notes which showed the claimant had prior problems with his right shoulder and which were apparently presented to show that the claimant had not received his injury from a specific accident at work, and the respondent’s first aid records in which the respondent’s doctor gave an unsubstantiated opinion that the claimant’s problems were nonoccupational.)

For the foregoing reasons, the judgment of the circuit court of Mason County, confirming the Industrial Commission’s decision, is affirmed.

Affirmed.

McCULLOUGH, P.J., and McNAMARA, WOODWARD, and STOUDER, JJ., concur.


source: Caselaw Access Project

author: JUSTICE McLAREN

license: Public Domain

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Plaintiff-Appellee, v. DAWN MARIE HASKINS et al., Defendants-Appellants.
    Second District
    No. 2—90—1280
    Opinion filed June 25, 1991.

      James R. Murphy, of Law Offices of J. Robert Murphy, of Aurora, for appellant Dawn Marie Haskins.
    Richard R. Solomon, of Richard R. Solomon & Associates, of Aurora, for appellant Walter Huhn.

      James J. Kenney and Peter G. Limperis, both of Palivos Law Firm, Ltd., and James A. McCarron, both of Chicago, for appellant Barbara Quinones.
    James S. Jendryk, of Querrey & Harrow, Ltd., of Wheaton, and Timothy J. Fagan, Ellen L. Karecki, and Michael Resis, all of Querrey & Harrow, Ltd., of Chicago, for appellee.
   JUSTICE McLAREN

delivered the opinion of the court:

Defendants, Dawn Haskins, Walter Huhn and Barbara Quinones, appeal from a decision of the trial court granting plaintiff, State Farm Automobile Insurance Company, judgment on its complaint for declaratory relief. Defendants argue: (1) necessary and indispensable parties were not joined in the action; (2) State Farm’s failure to file a written response to Quinones’ affirmative defense constituted an admission of coverage; (3) the trial court erred by not granting Quinones a continuance to locate and secure the testimony of a witness; (4) the trial court erred by not striking the testimony of a witness who was allowed to remain in the courtroom while other witnesses were testifying; and (5) the decision of the trial court was against the manifest weight of the evidence. We affirm.

In September 1986, Jose Sanchez obligated himself on a loan so that his brother, Angel Sanchez, could acquire an automobile. At the time, Angel had just moved from Puerto Rico and was living with Jose. Jose also purchased insurance coverage on the automobile from State Farm, and he was the named insured under the policy.

In November, Angel moved to a new residence which he shared with Maria Rivera and three of her four children. Although Rivera’s other son, Jose Soto, did not reside in the home with his mother and Angel, Soto did have a key to the Sanchez/Rivera home and ate most of his meals there.

On December 12, Soto was driving the vehicle purchased for Angel and was involved in an accident. At the time of the collision, Huhn, Quinones and Haskins were passengers in the vehicle.

The passengers filed personal injury suits against Soto, Angel and Jose Sanchez. State Farm filed a declaratory judgment action naming Soto, Huhn, Haskins and Quinones as defendants. State Farm claimed it was not obligated to provide Soto with a defense in the underlying personal injury lawsuits and could not be held liable to pay any judgments imposed against him as a result of the lawsuits. Angel and Jose Sanchez were not made parties to the declaratory action.

After a bench trial, the trial court found Soto had not been a permissive user of the vehicle. The court determined that State Farm did not owe a defense to Soto as the policy in force did not cover Soto. The court entered judgment for State Farm. Huhn, Quinones and Haskins appeal from this decision.

The first issue we address is defendants’ contention that the court’s order is void since Jose and Angel Sanchez were not named as party defendants in the declaratory action. Defendants contend Jose and Angel are necessary and indispensable parties to the declaratory judgment proceedings.

A necessary and indispensable party is one whose presence in the litigation is required: when a substantial interest of an absent party will be affected by a judgment entered in his or her absence; or to reach a decision which will protect the interests of the parties before the court; or to allow the court to resolve completely the controversy. (West Bend Mutual Insurance Co. v. Salemi (1987), 158 Ill. App. 3d 241, 252.) A court lacks jurisdiction to enter an order or judgment which affects the rights of a party not properly before the court. (Lain v. John Hancock Mutual Life Insurance Co. (1979), 79 Ill. App. 3d 264, 269.) An order entered by a court without jurisdiction over a necessary party is null and void. People ex rel. Meyer v. Kerner (1966), 35 Ill. 2d 33, 38.

Defendants did not raise the issue of nonjoinder of necessary parties at trial, but this issue may be raised for the first time on appeal. (See Hobbs v. Pinnell (1959), 17 Ill. 2d 535, 536.) However, when an objection to the nonjoinder of a necessary party is first raised after judgment, it will be rejected unless the absent party was deprived of material rights without being heard or the absent party’s interests in the litigation are so interconnected with the named parties’ interests that the presence of the absent party is absolutely necessary. Davidson v. Comet Casualty Co. (1980), 89 Ill. App. 3d 720, 725.

Defendants claim that Angel’s and Jose’s rights might have been compromised by the court’s judgment “as issues of agency and negligent entrustment may be litigated in the [underlying] personal injury cause of action.” While it is true these issues may be litigated in the underlying action, the instant declaratory action did nothing to impair Angel’s and Jose’s rights with respect to coverage trader the State Farm insurance policy. State Farm does not dispute coverage exists for Angel and Jose Sanchez. State Farm admits it owes these two persons a defense in the underlying suit. Their rights could not have been and were not affected by the declaratory judgment action.

Defendants cite Safeway Insurance Co. v. Harvey (1976), 36 Ill. App. 3d 388, to support their position that the named insured is an indispensable party to a declaratory judgment action. However, in Safeway, the plaintiff insurance company sought and was granted rescission of a policy of insurance due to misrepresentation. (Safeway, 36 Ill. App. 3d at 390.) The named insured was never served. The reviewing court held that, since the company was relieved of its contractual duty to pay, defend or indemnify the named insured as a result of the judgment entered in the declaratory action, it was obvious the named insured’s interests were injuriously affected. (Safeway, 36 Ill. App. 3d at 392.) Therefore, the named insured was held to be an indispensable party to the litigation, and the judgment entered in his absence was void. Safeway, 36 Ill. App. 3d at 392.

Unlike in Safeway, in the case at bar, Angel and Jose were not deprived of material rights by the court’s determination of Soto’s coverage under the insurance policy. Angel and Jose retained all rights under the policy in question. State Farm still had the obligation under the policy to defend, pay, or indemnify Angel and Jose. We determine Angel and Jose Sanchez were not necessary parties to the declaratory judgment action.

Defendants next contend State Farm admitted Soto was a permissive user of the automobile by not responding in writing to Quinones’ affirmative defense which alleged this fact.

It is true that failure to reply to an affirmative defense constitutes an admission of the allegations contained therein. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — -610(b); Lundberg v. Gage (1961), 22 Ill. 2d 249, 251.) However, if the complaint itself negates the affirmative defense, no reply is necessary. (Warren Barr Supply Co. v. Haber Corp. (1973), 12 Ill. App. 3d 147, 149.) The court should liberally construe the rule excusing the filing of a reply to an affirmative defense. Adams v. Zayre Corp. (1986), 148 Ill. App. 3d 704, 711.

Plaintiff’s complaint alleged Soto took the vehicle from Angel’s home without Angel’s permission. Quinones’ affirmative defense alleges Angel granted Soto permission to use the vehicle. Quinones’ affirmative defense was simply a contrary statement of fact which was negated by the complaint. It was not necessary for State Farm to file a written reply to the alleged affirmative defense.

Additionally, we note defendants have waived any objection to the failure to file a reply to the affirmative defense by introducing evidence in support of the allegations contained in the affirmative defense and fully litigating the issues raised by the affirmative defense. Mooney v. Underwriters at Lloyd’s, London (1965), 33 Ill. 2d 566, 570.

Defendants next contend the court erred by not granting Quinones’ request for a continuance to obtain the testimony of a particular witness. It is within the trial court’s sound discretion to grant a request for a continuance, and its decision will not be disturbed absent a manifest abuse of that discretion. Feder v. Hiera (1980), 85 Ill. App. 3d 1001, 1002.

Supreme Court Rule 231(a) provides:

“If either party applies for a continuance of a cause on account of the absence of material evidence, the motion shall be supported by the affidavit of the party so applying or his authorized agent. The affidavit shall show (1) that due diligence has been used to obtain the evidence, or the want of time to obtain it; (2) of what particular fact or facts the evidence consists; (3) if the evidence consists of the testimony of a witness, his place of residence, or if his place of residence is not known, that due diligence has been used to ascertain it; and (4) that if further time is given the evidence can be procured.” (134 Ill. 2d R. 231(a).)

In the case at bar, defendants did not submit an affidavit to the court. This court has previously stated: “A denial of a motion for continuance cannot be regarded as an abuse of discretion where the requirements of Supreme Court Rule 231(a) [(134 Ill. 2d R. 231(a))] have not been met.” (Mikarovski v. Wesson (1986), 142 Ill. App. 3d 193, 195.) While defendants did inform the court of the nature of the testimony the witness would provide, defendants did not establish due diligence had been used to obtain the evidence or that, if further time were allowed, the evidence could be produced. The witness was known to defendants at the time of the accident. In fact, defendants had previously secured an affidavit from the witness which was filed some eight months prior to trial. While defendant indicated the witness had no permanent address and was hard to track down, defendants offered no excuse as to why they had not attempted to subpoena the witness prior to the start of trial. Additionally, the difficulty involved in locating the witness supports a finding that, even with additional time, the evidence would probably not be procured. The court did not abuse its discretion in denying defendants’ request for a continuance.

The next issue we address is defendants’ contention the court erred by not striking the testimony of Angel Sanchez as he was allowed to remain in the courtroom while other witnesses were testifying after a motion to exclude witnesses was allowed. Defendants’ argument consists of seven sentences with no citation to authority in violation of Supreme Court Rule 341(e)(7) (134 Ill. 2d R. 341(e)(7)). It is well established that bare contentions without argument or citation to authority do not merit consideration on appeal. (Deckard v. Joiner (1970), 44 Ill. 2d 412, 419.) Defendants have waived this contention on appeal.

Defendants lastly contend the court erred when it found Soto was not a permissive user of the vehicle. The findings of the trial court will not be set aside unless they are contrary to the manifest weight of the evidence. (Hill v. Hill (1979), 79 Ill. App. 3d 809, 814.) There was substantial testimony indicating Soto did not have permission to use the automobile. Soto himself testified he did not have permission to use the vehicle. While defendants point out certain inconsistencies in the testimony, the credibility of the witnesses is for the trial court to determine. (Northlake Community Hospital v. Cadkin (1977), 55 Ill. App. 3d 344, 349.) The trial court’s finding is not against the manifest weight of the evidence.

For the above-stated reasons, the judgment of the circuit court of Kane County is affirmed.

Affirmed.

BOWMAN and INGLIS, JJ., concur.


author: JUSTICE KNECHT

text:
      In re MARRIAGE OF DONALD A. KERBER, Petitioner-Appellee, and VONCELLA E. KERBER, Respondent-Appellant.
    Fourth District
    No. 4—90—0791
    Opinion filed June 18, 1991.

      Timothy D. Sturm, of Springfield, for appellant.
    Brown, Hay & Stephens, of Springfield (Almon A. Hanson, Jr., of counsel), for appellee.
   JUSTICE KNECHT

delivered the opinion of the court:

The circuit court of Sangamon County entered a judgment of dissolution of marriage dissolving the marriage between Donald and Voncella Kerber on September 18, 1990. The court awarded Voncella $600 per month in rehabilitative maintenance for a period of one year, her nonmarital property, and divided the marital property between the parties. Voncella appeals, challenging both the maintenance award and the distribution of marital assets. We affirm the distribution of marital assets but find the award of time-limited maintenance to be an abuse of discretion, and therefore modify the award.

Donald and Voncella Kerber were married on November 5, 1960. They had four children together, all of whom have reached majority age. The two youngest children, Don Kerber, Jr., and Leighann Kerber, ages 24 and 19, respectively, currently live with Voncella, and both work full time.

Voncella is 50 years old, has a high-school education, and does not appear to have any specialized skills for working outside the home. When the parties married, Voncella worked as a dental assistant, but quit when she became pregnant, and stayed home to raise the children. She testified that during the marriage Donald discouraged her from working outside the home, and at one point told her not to accept a job that was offered to her. Voncella did not have any employment until after the separation in June 1989, when she began working part time as a food demonstrator, promoting food products. She testified she wishes to enroll in a 10-month program in massage therapy to become a registered physical therapist. The cost of this program is approximately $4,000.

Voncella has $445 to $485 in monthly income from monthly payment on balance of a contract for deed from her brother, rent from an elderly woman living on one of her nonmarital properties, and from her job as a food demonstrator. In her financial affidavit, she claims $939 in monthly expenses, including $400 for food and household supplies, $150 in gas, oil, and vehicle repairs, $225 average for utilities, $46 for phone, and $120 in medical insurance. Voncella also testified she pays approximately $600 in property taxes and insurance. However, when the itemized figures in this affidavit were contrasted at trial with her actual checkbook entries for these expenses, she acknowledged her expenses could be as low as $650 to $700 per month, and that a portion of the expenses listed included expenses for her two children who are living with her.

Voncella asserts she suffers from poor health, specifically a painful ankle, chronic migraine headaches, and trigeminal neuralgia, a nerve condition causing facial pain. She testified the headaches and trigeminal neuralgia are severe and she cannot work when she experiences these conditions. Harriet Becky, a neighbor of the Kerbers, confirmed Voncella’s headaches are severe, and she suffers one at least once a month. Leighann Kerber also testified her mother experiences severe headaches and trigeminal neuralgia. Voncella testified she has not seen a doctor “in years” because she cannot afford it.

Donald Kerber is 53 years old, and earns $34,668 as an assistant administrator for the Secretary of State. In his first financial affidavit of July 21, 1989, he listed monthly expenses of $920.33. By the day of the hearing, on August 6, 1990, Donald’s expenses rose to $1,630 per month, including approximately $300 for food and household expenses, $85 for vacations, $175 in cigarettes and liquor, and $250 in attorney fees. His testimony revealed he usually pays only $100 per month in attorney fees. He also testified he was living with Linda Travis, and his expenses of meals out ($70), vacation ($85), liquor, beer, and cigarettes ($175), constituted his share of the expenses.

On October 23, 1990, the circuit court entered an amended judgment of dissolution of marriage. The court ordered Donald to pay Voncélla $600 per month in rehabilitative maintenance for a period of one year “at which time the court shall review the rehabilitative maintenance award.” The court distributed the marital and nonmarital assets as follows, with the values as to each stipulated to by the parties:

Voncella Donald
Marital residence $49,000.00
Fiat pension $25,209.46
Personal property 3.010.00
Knights of Columbus
Policy No. W13169 541.59
Policy No. L68289 2.516.00
2,484.66 IRA No. 100B5751
Metropolitan insurance policy 12,117.82
Series E and EE bonds 4,146.51 4,146.51
1983 Thunderbird 700.00
1988 Plymouth 70.00
State of Illinois pension 4,470.52
$59,372.51 $49,040.56
Voncella’s nonmarital property:
208 N. 2d Street, Riverton $15,000.00
Two 40’ by 100’ empty lots in Riverton 6,000.00
Balance due on a contract for deed from John Alex Bonas 4,900.00
Bank of Riverton stock 920 shares at fair market value of $4.50 per share 4,144.50
$30,044.50
TOTAL $89,417.01 $49,040.56

This appeal followed.

An award of maintenance is warranted when the court finds the spouse seeking maintenance lacks sufficient property, including marital property, to provide for her reasonable needs and is unable to support herself. (Ill. Rev. Stat. 1989, ch. 40, par. 504(a); In re Marriage of Wade (1987), 158 Ill. App. 3d 255, 269, 511 N.E.2d 156, 166.) A spouse need not be reduced to poverty before maintenance is appropriate. (In re Marriage of Hart (1990), 194 Ill. App. 3d 839, 852, 551 N.E.2d 737, 745 (Steigmann, J., specially concurring).) Further, a spouse is not required to sell off his or her assets or capital in order to maintain the standard of living established during the marriage. In re Marriage of Emery (1989), 179 Ill. App. 3d 744, 750, 534 N.E.2d 1014, 1018.

An award of maintenance is within the discretion of the trial court and should not be reversed unless it constitutes an abuse of discretion or is against the manifest weight of the evidence. (In re Marriage of Zummo (1988), 167 Ill. App. 3d 566, 574, 521 N.E.2d 621, 626.) Under section 504 of the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1989, ch. 40, par. 504(a)), the court properly found Voncella was entitled to an award of maintenance.

However, the trial court abused its discretion in failing to make Voncella’s maintenance award permanent. Section 504(b) of the Act provides maintenance “shall be in such amounts and for such periods of time as the court deems just.” (Ill. Rev. Stat. 1989, ch. 40, par. 504(b).) What constitutes a “just” time period for the award is made on the consideration of all relevant factors, including (1) the financial resources of the party seeking maintenance, including his or her marital property; (2) the time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment; (3) the standard of living established during the marriage; (4) the duration of the marriage; (5) the age and the physical and emotional condition of each of the parties; (6) the ability of the spouse paying maintenance to meet his or her needs while meeting those of the spouse seeking maintenance; and (7) the tax consequences of the property division of the parties. Ill. Rev. Stat. 1989, ch. 40, par. 504(b).

In light of these factors, it is apparent the court abused its discretion in awarding Voncella maintenance for a period of one year, even though at that time the court would review the award, and not necessarily terminate it. (In re Marriage of Albiani (1987), 159 Ill. App. 3d 519, 525, 512 N.E.2d 30, 34 (time-limited maintenance with review does not terminate at the end of the stated time period).) Almost every one of the statutory factors indicates this was a classic case for the award of permanent maintenance. The parties had a marriage of long duration. Voncella has limited resources to meet her needs independently. She has only a high-school education, so the time needed for her education or training to enable her to seek employment somewhere other than, e.g., a fast-food restaurant, will be significant. Voncella suffers from debilitating migraine headaches, trigeminal neuralgia, and a painful ankle. Because of the agreed-upon division of labor during her marriage, Voncella stayed home and raised the children, and is thus attempting to enter the work force relatively late in life, with limited skills. Donald, however, because of the division of labor that he requested, was able to gain marketable skills which enable him to earn over $34,000 working for the Secretary of State. As Justice Steigmann stated in his special concurrence in Hart:

“Marriage is a partnership, not only morally, but financially. Spouses are coequals, and homemaker services must be recognized as significant when the economic incidents of divorce are determined. Petitioner should not be penalized for having performed her assignment under the agreed-upon division of labor within the family. It is inequitable upon dissolution to saddle petitioner with the burden of her reduced earning potential and to allow respondent to continue in the advantageous position he reached through their joint efforts.” Hart, 194 Ill. App. 3d at 853, 551 N.E.2d at 745 (Steigmann, J., specially concurring).

Under these circumstances, it is inappropriate to review Voncella’s maintenance to ensure she will vigorously pursue employment. Especially with regard to long marriages such as this, the desire of the former spouse and her potential employability are not mutually exclusive with an order of permanent maintenance. Accordingly, we modify the award of maintenance, pursuant to our authority under Supreme Court Rule 366(a)(5) (134 Ill. 2d R. 366(a)(5)), to $600 per month permanent maintenance.

The court’s distribution of marital assets did not, however, constitute error. The court awarded Voncella nonmarital assets in the amount of $30,044.50. She also received $59,372.51 worth of marital assets, including the marital residence, personal property in the residence, an insurance policy, bonds, and a 1983 Thunderbird car. Donald received $49,040.56 worth of the marital assets.

A court’s distribution of marital property should not be reversed absent a showing the court abused its discretion, i.e., no reasonable person could adopt the trial court’s position. (Hart, 194 Ill. App. 3d at 847, 551 N.E.2d at 741.) Section 503(d) of the Act provides the court should distribute the marital property in just proportions, considering all relevant factors, including a number of statutory factors.

Voncella argues the court erred because it distributed more liquid assets to Donald. Given her lack of vocational skills, it is unlikely she will be able to sustain herself in the manner she became accustomed to during marriage, and since she was not awarded any of the pensions, she will have only 15 years to build a retirement fund. She further argues she will have to deplete marital and non-marital assets in order to support herself.

It is true the assets distributed to Donald may be somewhat more liquid, but that does not render the award an abuse of discretion. Voncella has the marital residence in which to live. In addition, she owns $30,000 worth of nonmarital property, including real property in Riverton, the balance due on the contract for deed, and approximately $4,100 of Bank of Riverton stock. Under these circumstances, the court’s award of 55% of the marital assets to Voncella does not constitute an abuse of discretion.

The judgment of the circuit court of Sangamon County is affirmed as modified.

Affirmed as modified.

LUND, P.J., and STEIGMANN, J., concur.


author: JUSTICE GORMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TONY LYNN ROYARK, Defendant-Appellant.
    Third District
    No. 3—90—0017
    Opinion filed June 20, 1991.
    Rehearing denied July 24, 1991.

      Mark D. Fisher, of State Appellate Defender’s Office, of Ottawa, for appellant.

      Roland Burris, Attorney General, of Springfield (Thomas L. Ciecko, Assistant Attorney General, of Chicago, of counsel), for the People.
   JUSTICE GORMAN

delivered the opinion of the court:

Defendant Tony Lynn Royark pleaded guilty to murder, armed robbery and conspiracy (to commit murder). The prosecution sought the death penalty, and the court found the defendant eligible for the death penalty, but declined to impose it. The defendant was sentenced to natural life for murder and an extended term of 60 years for armed robbery. Defendant moved to withdraw his guilty plea, vacate the judgment and reconsider the sentence. The court denied the post-trial motions except that the sentence for armed robbery was reduced to 30 years.

On appeal, this court vacated the order of the trial court denying the motion for leave to withdraw the guilty plea. This court held that trial counsel had failed to comply with the requirements for guilty pleas as outlined in Supreme Court Rule 604(d) (107 Ill. 2d R. 604(d)). We remanded for rehearing on that motion or any amended motion to withdraw the guilty plea.

On remand, the defendant filed an amended motion to withdraw his guilty plea. The trial court denied the motion. The defendant appeals. We affirm.

In the early morning hours of November 23, 1986, Kim Wayne Jackson was beaten to death in an unoccupied rural farmhouse he owned. On January 7, 1987, the victim’s estranged wife, Janet Jackson, was charged with soliciting the murder. Additionally, Jackson, 16-year-old Michael Miller, and Tony Royark were charged with three courts of murder (Ill. Rev. Stat. 1989, ch. 38, pars. 9 — 1(a)(1), (a)(2), (a)(3), conspiracy (murder) (Ill. Rev. Stat. 1989, ch. 38, par. 8 — 2(a)), and armed robbery (Ill. Rev. Stat. 1989, ch. 38, par. 18 — 2(a)). Miller pleaded guilty to conspiracy and attempted murder and agreed to testify for the State. On May 18, 1987, the defendant pleaded guilty to all charges. At the hearing on that date, the trial court admonished the defendant of the rights he waived by entering the guilty plea, advised him of the range of possible sentences, and was assured by the defendant that his guilty plea was not induced by promises or threats made by the State, his attorney, or anyone else. The State recited the evidence it would present at trial, and the defendant tendered his plea. The court determined there was a factual basis for the plea and found the defendant guilty of all charges. The phases of the death penalty hearing were explained, and Royark stated that he waived his right to a jury for the death penalty hearing.

The case against Jackson proceeded to jury trial. The evidence presented at the trial is more fully described in People v. Jackson (1989), 180 Ill. App. 3d 78, 535 N.E.2d 1086. For purposes of this appeal, a summary of the proceedings will suffice and is presented below.

The evidence at that trial tended to establish that Royark and Miller waited for Jackson to lure the victim to the Jacksons’ rural farm on November 23, 1986, and, as part of a prearranged plan, beat him to death and took his wallet. Royark and Miller also took Janet’s purse and hit her with a board to substantiate her claim that she and her estranged husband were attacked by an unknown intruder. The evidence at the trial also established that the threesome had been planning the victim’s death for months and had made previous unsuccessful attempts to end his life. Royark and Miller had an ongoing sexual relationship, as did Miller and Jackson, and it appears that the three intended to live together as soon as it was practicable.

Kim Jackson had recently procured a $100,000 insurance policy which named his daughter and wife as beneficiaries. The testimony at trial suggested that obtaining the insurance proceeds was another one of the codefendants’ motives for the murder. Additionally, Royark had been charged with arson in Iowa because he tampered with the gas pipes beneath the trailer in which the victim resided after he moved out of the marital residence. The victim was a witness to the crime, and some of the testimony at the murder trial indicated he was killed, in part, to prevent him from testifying against Royark.

While Janet Jackson testified that she did not conspire to murder her estranged husband or know that Royark and Miller would be waiting at the unoccupied farmhouse to murder him, other testimony suggested that she actively directed and participated in the activities in this murder plot and the previous unsuccessful ones. The jury found Jackson guilty of solicitation, conspiracy, murder, and armed robbery.

On June 10, 1987, Royark, Jackson, their attorneys, and counsel for the State signed a stipulation governing procedures to be employed in the defendants’ death penalty hearing. As to Royark, the stipulation provided that the court would consider the evidence adduced at Jackson’s trial in its determination of whether he was eligible for the death penalty (Ill. Rev. Stat. 1989, ch. 38, par. 9 — 1(b)) and in its determination of whether the penalty should be imposed (Ill. Rev. Stat. 1989, ch. 38, par. 9 — 1(c)). The stipulation further provided that all parties would be permitted to introduce additional evidence during the penalty phase of the hearing, but evidence offered against Jackson at the hearing would not be considered against Royark.

The trial court determined that Jackson was eligible for the death penalty and then considered Royark’s eligibility. The State called Michael Miller, who testified that he met Royark in 1984. Miller said they were initially friends and co-workers, but they began a sexual relationship approximately three months after they met. Miller stated he had sex with men Royark introduced him to, and the men gave him money, some of which he gave to Royark. Upon cross-examination concerning his testimony at trial, Miller indicated that although the plans to murder the victim had been discussed for several months, they did not become serious until after Royark was arrested for arson. Miller testified that Jackson told Royark to take the victim’s wallet.

Next, evidence was introduced on Royark’s behalf. Several character witnesses testified to Royark’s good character and the high quality of work he performed.

Eugene VanDriel, the Iowa attorney Royark retained to represent him on the arson charges filed after he tampered with the trailer’s gas lines, also testified. He stated that on November 21, 1986, two days before the murder, Royark entered into a plea agreement under which a charge of arson would be dismissed and, in exchange, Royark would plead guilty to a lesser offense. The State was to recommend supervised probation in a residential facility. The attorney testified that the agreement was never finalized and that the case remained pending. Concurrence of the court was a condition of the plea. Royark was not scheduled to enter his guilty plea in court until the first week of December, which was, of course, after the events of November 23 herein.

Royark took the stand in his own behalf. He testified that as a child, his home life was unstable and that two of his older brothers sexually abused him for several years. He stated he dropped out of school after seventh grade, but obtained a General Educational Development degree.

Royark testified about meeting Miller, who was a male prostitute. He stated that he was initially bothered by Miller’s sexual relationship with Jackson, and told the court that eventually he and Jackson agreed they would continue their relationships with Miller and the three of them would live together someday. Royark told the court that Miller was afraid of the victim, who was 6 feet 4 inches tall and weighed over 300 pounds. The victim had harmed Miller several times while wrestling with him.

Royark testified that he tampered with the gas pipes under the trailer because Jackson repeatedly told him he had to “do something” or her husband would kill him and Miller. He testified that on November 22, 1986, Jackson, Miller and his brother, and the victim’s brother came to his house, where they discussed plans to murder the victim. Jackson said she could get her husband to their rural farm and the others could beat him. Royark explained the events leading up to the murder and stated that he and Miller struck the victim with pipes. At Jackson’s insistence, they struck her, too, and took her purse and the victim’s wallet before they left. Royark said he expected the victim to have money, but took it only to make the police think there had been a robbery. He stated that, after the murder, Jackson mentioned the victim had insurance.

Two psychiatrists who examined Royark and Jackson testified at the hearing. The experts offered different diagnoses of Royark. The State’s expert testified that Royark suffered from adult antisocial behavior disorder, while the defense expert indicated that Royark was a weak, altruistic person, who was easily manipulated but could be rehabilitated. They agreed that Royark genuinely loved Miller and participated in the murder to protect him.

The trial court determined that Royark was eligible for the death penalty because the murder was committed pursuant to an agreement by which the defendant was to receive money (Ill. Rev. Stat. 1989, ch. 38, par. 9 — l(bX5)), the victim was killed during the course of another felony (Ill. Rev. Stat. 1989, ch. 38, par. 9 — l(bX6)), and the defendant murdered the victim with the intent to prevent him from testifying in a criminal prosecution (Ill. Rev. Stat. 1989, ch. 38, par. 9 — 1(b)(8)). The court also found that the murder was accompanied by exceptionally brutal and heinous behavior indicative of wanton cruelty. The court determined that sufficient mitigating circumstances existed to preclude imposition of the death sentence and imposed a sentence of natural life imprisonment for the murder. The court imposed a term of 60 years for armed robbery.

On June 30, 1987, Royark’s trial counsel filed a motion to withdraw his guilty plea and vacate the judgment and a motion to reconsider the sentence. The motion to withdraw the guilty plea alleged that Royark’s sentence was excessive and disproportionate to those of Jackson and Miller. In the motion to reconsider, Royark alleged that the court failed to fully consider certain mitigating factors and that the sentence was excessive. Arguments on the motions were heard on July 7, 1987. The court reduced the armed robbery sentence to a term of 30 years and denied the remaining requests for relief. The defendant appealed.

On appeal, this court held that defendant’s trial attorney failed to file the requisite Rule 604(d) certificate, failed to consult with his client prior to filing the motion to withdraw guilty plea, and did not have the opportunity to review a transcript of the plea hearing before filing the motion to withdraw guilty plea. This court, in an unpublished order under Supreme Court Rule 23 (107 Ill. 2d R. 23), remanded the cause for a hearing on defendant’s motion to withdraw guilty plea and directed that new counsel be appointed and that an amended motion be filed if necessary.

When this case was remanded, the Mercer County public defender was appointed to represent defendant. Finding a conflict of interest, the circuit court disqualified the Mercer County public defender and appointed the Rock Island County public defender to represent defendant.

Nine days later, William Schick, the Rock Island public defender, met defendant and appeared before the trial court. Defendant told counsel to ask for two attorneys because he “read somewhere” he could ask for them. Schick did ask the trial court, and this request was denied. None of defendant’s subsequent allegations, regarding his motion to substitute counsel, apply to Schick.

During the time defendant was represented by the Rock Island public defender’s office, he clearly wanted private counsel. He wanted, in fact, two attorneys.

In early August 1989, David Hoffman, of the Rock Island public defender’s office, took over the case. Two days later, Hoffman came to see defendant. Defendant pressured him into filing a motion to substitute the trial court judge. Hoffman did not agree that filing the motion would serve any purpose other than to upset the judge. Defendant wanted Hoffman to raise every issue he (defendant) could think of, while Hoffman wanted to narrow the issues in the motion to withdraw defendant’s guilty plea. Defendant was displeased that Hoffman did not talk to him for three days. When defendant and Hoffman spoke, defendant was adamant about filing the motion to substitute judges. Hoffman finally agreed, only to have defendant begin to argue with him over the specifics of the motion. During this time, defendant told Hoffman that his appellate counsel was available and had offered to help in his behalf.

When the motion to substitute was heard and denied, defendant was upset because he was not allowed to testify or allowed to change from his “jail clothes.” Defendant further became upset because Hoffman didn’t come to see him for two days. During this time, defendant was being advised by his appellate counsel to file certain objections. During the next few weeks, defendant constantly called Hoffman with requests about his transcripts and motions he wished filed.

Displeased with Hoffman’s conduct of his case, defendant filed a pro se motion to appoint counsel other than the public defender. Hoffman came to see defendant. Defendant denounced Hoffman’s representation and terminated the meeting.

Defendant’s motion and affidavits, in essence, alleged Hoffman showed no interest in his case; had not read his transcripts; had not talked to him about his issues; missed appointments; failed to return his phone calls; and lied to him.

In response, Hoffman filed a motion to withdraw as defendant’s counsel, stating if he responded to defendant’s allegations he would create a conflict, and further meetings with defendant would only be twisted to provide new allegations for defendant.

At the hearing on defendant’s motion, defendant told the trial court “I think it’s pretty clear that things are not being done when they should be. I can never get a hold of him *** the motions I wanted to file were never filed. I had to file them myself.” Hoffman did not want to respond to the allegations because he feared it would create a conflict with the defendant. He finally wanted to respond, but the trial court saw no purpose in a response. Hoffman related a pattern of defendant’s refusal to cooperate with him and attempts to interfere with Hoffman’s representation.

At the conclusion of the October 19, 1989, hearing, the trial court remarked:

“This matter is of deep concern for me for a number of reasons. Probably the most significant is that I not only know Mr. Hoffman’s reputation from his multiple appearances in this Court and I not only know of his ability from multiple appearances in this court, but I know of his statewide reputation as well, as a former judge and as an outstanding public defender in the State of Illinois.
I know from his reputation that there are few better qualified defense attorneys in the State of Illinois and it is of great concern to me that either his, either his integrity or his ability is impugned.
* * *
Mr. Hoffman, your motion, as painful as it is to me, and to Mr. Hoffman, Mr. Hoffman’s motion to withdraw as counsel is also denied.”

Defendant then made an oral motion to proceed pro se which was not considered by the court.

Defendant filed a “second amended” motion to withdraw guilty plea. The motion alleged that the plea was involuntary as a result of ineffective assistance and promises, false information, and coercion; trial counsel had a conflict of interest; defendant had a hearing problem; there was insufficient evidence of an armed robbery; one or more of the death-eligibility factors on which the trial court had relied did not exist; two of the death-eligibility factors were based on the same conduct and should have been considered as only one factor; the sentence was excessive; and no presentence report was filed.

The State filed a response, and at a hearing on the motion, the defense produced testimony from Royark and trial defense attorney Karl Bredberg.

Bredberg related that he had farm business dealings with Janet and Kim Jackson. He had filed a lawsuit against them which remained pending in November 1986. In his capacity as an attorney he had never represented the Jacksons in any matter.

The defendant testified that he had been unaware of a current legal relationship between his attorney and his codefendant and the victim of the crime. His attorney had misled him about his sentence. His attorney told him that the judge had referred to this as a case involving a 50-year term and that the judge had actually offered a 30-year term if defendant pleaded guilty. Thus, the defendant pleaded guilty only because he thought he had been promised a 30-year term. He denied the existence of that promise when asked about it by the judge at the May 18, 1987, hearing when he pleaded guilty only because “I was told that was the way things were done. You made an agreement or whatever and you go in and you answer the questions the right way and then you plead guilty.” His understanding was that the judge denied being a part of that promise when he admonished him from the bench since, “I thought that’s just the way it was done for the record.” Part of his reason for pleading guilty was to escape the possible subsequent filing of sex crime charges. His attorney never told him he was eligible for death until after he had pleaded guilty. The defendant indicated that he would never have pleaded guilty if he had known he was getting a term of natural life imprisonment. Defendant further asserted that he never waived his presence at any proceeding. The defendant denied killing Kim Jackson and denied being present at the time of Kim’s murder. He alleged that his attorney had failed him in several other ways, too: failed to discuss many documents in the record with him, failed to discuss which charges were “death penalty enabling” or the theory of accountability and failed to make him understand that he was waiving an appeal. Finally, the defendant explained that he needs hearing aids in both ears, but did not possess any hearing aids at the time of the plea.

The defense called Jackson but her testimony was disallowed as hearsay. As an offer of proof, the defense showed that Jackson would have testified that before she and the defendant had been sentenced, the defendant told her that Bredberg had told him that he would receive not more than 50 years if he pleaded guilty.

The prosecution recalled Bredberg to show that he acted effectively and had fully informed the defendant to enable him to make a voluntary and intelligent decision about pleading guilty. Bredberg, the only public defender in Mercer County, had represented 720 to 800 defendants from 1978 to 1987 and litigated two to three jury trials a year. He saw the defendant almost daily from the time of appointment and considered this the most time-consuming case he ever undertook. He knew this was a death penalty case and conveyed this to Royark many times before the defendant decided to plead guilty. Bredberg felt the defendant did not want to face the prospect of death and always felt that the prosecution would change its mind. Bredberg hoped that if the defendant entered a plea very early, he might be able to draw a sentence in the 30- to 50-year range. However, the prosecution never offered anything less than death and refused to waver in that position. He told the defendant that, based on the discovery, it was his opinion that the death penalty was a likely outcome unless he made an open plea at which time it would be up to the judge. He never told the defendant that the judge had promised or even indicated an intention to impose a sentence in the 30- to 50-year range, and he never told the defendant that he better plead guilty to escape the filing of additional charges. The defendant was present for every major decision and court appearance, and Bredberg showed him a copy of everything that had been filed in court. There was never any agreement with the State about an 80-year sentence because the prosecutors from the Attorney General’s office were not present; anyway, the defendant had rejected it. The defendant had admitted to the charged crimes. In fact, the defendant had given a statement that Bredberg had tried to suppress, but because it wasn’t suppressed, the statement eliminated most of the alternatives. He had made it clear to the defendant that his later statements were inconsistent with his former and this would be a large hurdle to overcome at trial.

During argument, the defense urged that the plea was involuntary because Bredberg had not told the defendant that a guilty plea would expose him to the same sentence as had he gone to trial. Instead Bredberg “promised” the defendant that if he went to trial and lost he would get the death penalty; yet, if he pleaded guilty, he would not. This promise arose, according to the defense, simply because Bredberg felt better about his client pleading guilty than going to trial. Further, Bredberg failed to discuss with Royark the possibility of eliminating the armed robbery charge at trial, thereby negating application of the death penalty. There was no indication why the defendant would have rejected the offer of 80 years.

The prosecution argued that the defendant knew everything he needed to make a voluntary decision to plead guilty. Counsel had met with him 48 times.

The judge denied the motion that same day He stated that some of the allegations in the amended motion fly in the face of a very complete record that had been witnessed by a number of people, including the defendant and his attorney. The defendant appeals, raising several issues for review.

Royark initially contends that the trial court abused its discretion in rejecting his attempt to substitute counsel. Royark argues that this court should vacate the ruling of the trial court denying his motion to withdraw his guilty plea and remand for a new hearing with direction that new counsel be appointed to represent him. We reject this argument.

The case law makes it clear that an indigent defendant has no right to select his own counsel absent a showing of good cause. (People v. Sylvester (1979), 71 Ill. App. 3d 130, 132, 389 N.E.2d 601, 602.) Absent a showing of good cause, it is within the discretion of the trial court to deny a request for substitute counsel. People v. Gornick (1982), 107 Ill. App. 34 505, 510, 437 N.E.2d 892, 896.

Royark advances two arguments in support of a “good cause” theory First, he claims that the deterioration in his relationship with Hoffman constituted good cause. Second, citing People v. Stoval (1968), 40 Ill. 2d 109, 239 N.E.2d 441, Royark argues that the combination of his motion for substitution of counsel and Hoffman’s motion to withdraw placed him in an adversary posture against attorney Hoffman. This, Royark maintains, was a per se conflict of interest obviating any requirement of a showing of prejudice.

Responding to Royark’s first argument, the fact that an appointed attorney and his client bicker between themselves does not require a court to grant a motion for new counsel. (Sylvester, 71 Ill. App. 3d at 132, 389 N.E.2d at 602-03.) Accordingly, we reject defendant’s argument that, based on his showing of disagreement between himself and Hoffman concerning representation and tactics, there existed automatic good cause grounds for substitution of counsel.

Concerning Royark’s second argument, this case is distinguishable from Stoval. Stoval involved a defendant represented by appointed counsel whose law firm was currently representing the jewelry store owner and the business allegedly victimized by the defendant. “The progeny of Stoval *** have interpreted the per se rule to apply only ‘where counsel’s conflict of interest arises from a commitment to others,’ and has not applied or adopted the rule where a conflict arises in another fashion.” (People v. Gardner (1977), 47 Ill. App. 3d 529, 533, 362 N.E.2d 14, 18, quoting People v. Fuller (1974), 21 Ill. App. 3d 437, 442, 315 N.E.2d 687, 690-91.) Accordingly, we reject Royark’s per se argument.

With that said, we turn now to the question of whether the trial court abused its discretion in denying Royark’s motion. In People v. Jackson (1981), 100 Ill. App. 3d 318, 426 N.E.2d 1132, the appellate court stated:

“To permit every defendant in every case to change counsel without good cause would result in judicial chaos. Therefore, the rule has necessarily evolved that cases of this type must each be carefully considered with due regard for the facts involved. Then, it is necessary to classify each particular case as either a legitimate exercise of a constitutional right or as an unnecessary exercise in futility. As we would expect, the matter is one which is left to the sound judicial discretion of the trial court.” Jackson, 100 Ill. App. 3d at 323-24, 426 N.E.2d at 1137.

The record in this case reveals that the trial judge who ruled on this motion is the same judge who handled much of the case from the outset. The record further reveals that appointed counsel, despite difficulty with this particular defendant, filed necessary motions, represented the defendant at hearings and vigorously protected his rights. The trial court’s decision was not an abuse of discretion.

Royark next contends that his sentence should be vacated and he should be allowed to withdraw his guilty pleas and plead anew because he received ineffective assistance of counsel which rendered his guilty pleas involuntary. The defendant’s arguments are that his trial attorney was “ill-equipped” to represent a defendant in a capital case, that his attorney encouraged him to plead guilty based on a false notion as to the benefits of pleading guilty as opposed to proceeding to trial, and that counsel failed to apprise him of all of the consequences of his pleas. We disagree.

Defendant’s public defender, Karl Bredberg, had been the public defender in Mercer County for nearly 10 years. During that time, Bredberg prepared, investigated in preparation for trial and proceeded to trial in nearly 800 cases. Several of these were jury trials where Bredberg defended clients charged with felony offenses. Many were guilty plea cases. Although Bredberg had not defended a client charged with a capital offense, he sought the assistance of the Capital Unit of the State Appellate Defender’s office. He conferred with that office and reviewed a manual sent to him.

Bredberg met with defendant daily from his appointment to the date defendant pleaded guilty, a total of 48 meetings. Bredberg followed up on every investigative lead given him and hired a psychiatrist for the case. Bredberg testified that it was the most time-consuming case he had ever had “by at least a factor of ten.”

While it is true that Bredberg had never represented a defendant charged with a capital offense, it is clear that he was an experienced criminal defense attorney. Every experienced capital defense attorney once tried his first capital case. Given the factors of this case, particularly Royark’s statements to the police, the expected testimony of codefendant Miller, and the brutal and heinous nature of the crime, the true measure of Bredberg’s competence in handling this case is that Royark did not receive the death penalty.

Royark’s second argument is that Bredberg encouraged him to plead guilty based on a false notion of the benefits of a guilty plea.

The record reveals that Bredberg was ready to try the case. Although he had counselled Royark to plead, he was ready, willing and able to make the best defense possible. Royark himself chose to plead guilty. Bredberg’s theory that the court would not impose the death penalty if Royark pleaded guilty proved true.

Finally, in a last attempt to show Bredberg was ineffective, defendant alleges counsel failed to explain that a guilty plea waived certain issues for appeal and failed to discuss the potential sentence of life imprisonment. He cites no support for his allegation that this renders Bredberg ineffective.

Whether a defendant has received effective assistance of counsel has two components: deficiency and prejudice. A defendant must prove that the performance of his counsel was so lacking, his errors so grave, that he was not functioning as the counsel guaranteed by the Constitution; and those errors so prejudicial to defendant as to deprive him of a fair trial. (Strickland v. Washington (1984), 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064; People v. Caballero (1989), 126 Ill. 2d 248, 260, 533 N.E.2d 1089, 1091.) In the context of a guilty plea, a defendant cannot satisfy the prejudice requirement without demonstrating that counsel’s ineffective assistance actually affected the outcome of the plea proceeding. (Hill v. Lockhart (1985), 474 U.S. 52, 59, 88 L. Ed. 2d 203, 210, 106 S. Ct. 366, 370.) There must be a reasonable probability that “but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” 474 U.S. at 59, 88 L. Ed. 2d at 210, 106 S. Ct. at 370.

When defendant pleaded guilty, Bredberg was asked if he had discussed the possible consequences of a guilty plea with defendant. Bredberg said “yes.” Defendant later admitted he knew he was eligible for the death penalty before he pleaded guilty. It was Bredberg’s opinion that a death sentence was more than probable if defendant went to trial. He knew that even with a plea of guilty, the State would seek death, but believed that the defendant would end up with less.

Aside from defendant’s assertion that he would not have pleaded guilty if he had known he could have received life without parole or death, defendant provides no allegations detailing the reasons why he would have insisted on going to trial. He cannot support an allegation on conclusory assertions unsupported by specific facts. Thus, defendant fails to show either component necessary to succeed here.

Finally, defendant, relying on this court’s opinion in People v. Stoneking (1990), 193 Ill. App. 3d 98, 549 N.E.2d 931, suggests that because he was not admonished as to the applicable sentence he might receive, he should be allowed to withdraw his guilty plea. In Stone-king, this court held that because the trial court had failed to inform the defendant that life imprisonment meant that he was not eligible for parole and there was no evidence in the record indicating the defendant knew he could not be paroled, his motion to withdraw his guilty plea should have been granted. The holding in Stoneking was based on the requirement that a defendant be informed of the maximum penalty he faces by pleading guilty. Here, defendant was advised:

“[T]he prima facie case would make this a capital offense and under the circumstances this defendant could be executed or given a sentence of life in prison.”

Defendant acknowledged the possible penalties. Thus, he knew the maximum penalty he faced — death. At the hearing on his motion to withdraw his guilty plea, he acknowledged that he knew he was eligible for the death penalty. It did not surprise him when the State con-tinned, after his plea, to ask for death. The State vigorously pursued the death penalty. Defendant is hardly in a position to claim he was not informed of the maximum penalty he was facing. Accordingly, Royark’s second argument is rejected.

Royark’s third argument contends that his sentence should be vacated and he should be allowed to withdraw his guilty pleas and plead anew. Royark argues that his guilty plea to armed robbery, which made him eligible for the death penalty, should not have been made because the evidence is insufficient to establish guilt. We disagree.

The measure of proof necessary to establish a factual basis for a plea is less than that required to sustain a conviction after a trial. (People v. Barker (1980), 83 Ill. 2d 319, 327, 415 N.E.2d 404, 408; People v. May (1975), 25 Ill. App. 3d 1, 3, 322 N.E.2d 606, 608.) All that is required to appear on the record is the basis from which the court could reasonably make the decision that the defendant actually committed armed robbery. Barker, 83 Ill. 2d at 327-28, 415 N.E.2d at 408.

The information in this case charged defendant with armed robbery “in that [he] while armed with a dangerous weapon, a metal pipe, took property, being approximately $110.00 United States currency, from the person of Kim Wayne Jackson, by the use of force.” In the factual basis presented at the guilty plea hearing, it was stated that defendant struck the victim repeatedly in the head with a metal pipe, forcing him to the floor, and then went through his pockets and removed an amount of currency. It cannot be seriously disputed that the information properly charges the offense of armed robbery, and that the factual basis provides reasonable support for every material allegation in the information.

Defendant relies primarily on People v. Tiller (1982), 94 Ill. 2d 303, 447 N.E.2d 174, and argues that the distinction between armed robbery and theft is a matter of intent: if fatal force is used against the victim solely for the purpose of killing, then the subsequent taking of property is a theft, not a robbery. The difficulty with this argument is that the information charging armed robbery does not contain an allegation concerning why defendant used force against the victim, it simply alleges that he was armed with a pipe, that he took property from the person of the victim, and that the taking was effected by the use of force. Thus, defendant finds it necessary to turn elsewhere for evidence of his intent, and he turns to the record of his codefendant’s trial. However, in pleading guilty, defendant waived all the rights exercised by his codefendant when she went to trial, including the rights to require the State to prove its charge and to present a defense, and he may not now rely on the evidence produced at that trial to impeach the charge he admitted and the factual basis he stipulated to. To the extent that the factual basis presented at the guilty plea hearing indicates that the purpose of the assault on the victim was to kill him, it also indicates that the taking of whatever money was on his person was part of the preconceived plan. The intent to use deadly force against the victim to disable him and prevent him from resisting does not make the subsequent taking of his property less than robbery. People v. Washington (1984), 127 Ill. App. 3d 365, 377, 468 N.E.2d 1285, 1294.

This is not a case like Tiller, where there was no intent to take property from the victim at a time before or proximate to the application of force. The record therefore contains reasonable support for the armed robbery conviction, and defense counsel did not render ineffective assistance in counseling defendant to plead guilty to that charge.

It also bears remembering that armed robbery does not require specific intent. People v. Lamprey (1979), 79 Ill. App. 3d 1065, 1068, 398 N.E.2d 1076, 1078.

Royark’s next issue questions whether the three eligibility factors rendering him eligible for the death penalty were shown beyond a reasonable doubt.

Our review of the record reveals that all three of the death penalty eligibility factors (contract murder, felony murder predicated on armed robbery and witness murder) were proven beyond a reasonable doubt. In addition, the trial court found that the murder was accompanied by exceptionally brutal and heinous behavior indicative of wanton cruelty and sentenced the defendant to life imprisonment pursuant to section 5 — 8—l(aXl)(b) of the Unified Code of Corrections (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—l(aXl)(b)). Accordingly, the court did not err in finding the defendant eligible for, and subsequently sentencing him to, life imprisonment.

We note that the defendant raises two additional issues. We have reviewed the record and considered the parties’ arguments. We find the issues to be without merit.

For the reasons listed above, the circuit court of Mercer County is affirmed.

Affirmed.

McCUSKEY and SLATER, JJ., concur.