author: JUSTICE WOODWARD JUSTICE INGLIS,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. THOMAS R. SCHWARTZ, Defendant-Appellant.
    Second District
    No. 2—89—1178
    Opinion filed December 16,1991.
    INGLIS, J., dissenting.
    G. Joseph Weller and Manuel S. Serritos, both of State Appellate Defender’s Office, of Elgin, and Michael J. Pelletier and Barbara Kamm, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Roland W. Burris, Attorney General, of Springfield, and James E. Ryan, State’s Attorney, of Wheaton (Joseph L. Ponsetto and Timothy C. Reynolds, Assistant Attorneys General, of Chicago, and William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE WOODWARD

delivered the opinion of the court:

Following a bench trial, the defendant, Thomas Schwartz, was found guilty of two counts of aggravated home repair fraud (Ill. Rev. Stat. 1987, ch. 121½, pars. 1603, 1605). Defendant was sentenced to serve 30 days in the county jail and 11 months’ work release. He was fined $1,500 in each case and ordered to make restitution to the victims. Finally, defendant was prohibited from working in the home repair business. Defendant appeals.

FOR THE STATE

Roy Jozaitis, 70 years of age, testified that in mid-October 1987 he talked with the defendant about purchasing new windows for his home. On November 2, 1987, he went to defendant’s place of business and entered into a contract for the installation of a bay window for $1,760. According to Jozaitis, defendant requested a down payment of approximately one-half of the contract price. Defendant informed Jozaitis that it would take 12 weeks for the windows to be ordered and installed. Jozaitis informed defendant that he wanted the windows installed by Christmas. Defendant assured Jozaitis that the windows would probably be done by Christmas but that he did not wish to put that in writing to protect himself in case of delays. Jozaitis identified the check he wrote to defendant for the initial payment and stated that the check had been cashed on November 3, 1987.

Jozaitis further testified that he returned to defendant’s place of business on November 7, 1987, because his wife wanted written assurance that the windows would be installed by Christmas. As Jozaitis entered the store, he observed a couple of people leaving the store. They appeared to be very upset with the defendant. Defendant explained to Jozaitis that the people were upset because he had not delivered their windows on time. Although the windows were on the truck, they had refused delivery because delivery had been promised for the morning, and it was already afternoon, and the people did not want to wait that long. According to Jozaitis, defendant then amended his contract to provide delivery of Jozaitis’s windows by Christmas.

Jozaitis further testified that in December 1987 he read an article in the Elmhurst Press that defendant was being charged in connection with complaints filed with the State’s Attorney. He attempted to contact the defendant but could not reach him. Defendant did not install any windows in his home, nor did he refund Jozaitis’s money.

On cross-examination, Jozaitis testified that in December 1987 he received a letter from the State’s Attorney’s office that a receiver had been appointed for the defendant’s business. He was also contacted by Advantec, the company that had been appointed to fulfill the defendant’s contracts. He ignored Advantec.

Rocco DiLallo, 70 years of age, testified that in November 1987 he contacted the defendant to install a bay window in DiLallo’s home. Defendant came to his house and discussed the project with DiLallo. Defendant wrote up a contract which DiLallo did not sign at that time. DiLallo contacted other installers but found that their prices were a little higher than defendant’s. On November 10, 1987, defendant came over to DiLallo’s house, and DiLallo signed the contract for the installa-tion of a bay window at a cost of $1,830. At defendant’s request, DiLallo gave him a check for $830. According to DiLallo, defendant told him it would take four to five weeks for the installation. Defendant also told DiLallo that he was insured but not bonded.

DiLallo further testified that the contract was modified to include triple glass. He called defendant’s office once or twice and was told by a girl working there that his window had been ordered. After he read the article in the Elmhurst Press concerning the allegations against the defendant, he contacted a senior citizen’s office in Elmhurst. He was told to contact the Attorney General’s office. Defendant never installed the bay window, and DiLallo never received a refund from the defendant.

On cross-examination, DiLallo denied that defendant told him that the order for the bay window had been placed with Advantec but stated a girl in defendant’s office told him defendant had placed the order. Advantec did contact him but did not install his window. Advantec did not tell him that his order had been placed with Advantec by the defendant.

FOR THE DEFENSE

Sam Savides testified that, for four years and up to 1989, he was the office administrator for Thermal Industries. His duties included taking orders from window and door installers. Late in 1984, defendant’s company, TRS Installations, began placing orders with Thermal Industries. In 1985, defendant placed $100,000 worth of orders, and Savides recalled no defaults in payment or late payments in 1985. In both 1986 and 1987, defendant placed approximately $175,000 in orders.

Savides further testified that in 1986 at different times there were defaults in payments by the defendant. The total amount in default was between $5,000 and $20,000, but defendant subsequently made up the defaults. At the end of 1987, defendant owed between $20,000 and $25,000 on the $175,000 in orders he had placed in 1987.

Savides further testified that 99% of defendant’s orders were for residential installations. Orders would be called in to Savides by defendant or his installers or salesmén. Copies of the orders were then sent to Pittsburg, where Thermal Industries had "the doors and windows manufactured.

Savides further testified that, as early as 1985, defendant was put on a COD basis with Thermal Industries, but this was not unusual. According to Savides, in 1987, there were five to seven orders that defendant failed to pick up. At the end of 1987, Savides was aware that defendant was being sued by the Attorney General’s office and was enjoined from further business proceedings.

On cross-examination, Savides testified that in 1987 the name of defendant’s company was changed from TRS Installations to Du Page Window and Lumber Company. Savides also dealt with a company called M.S. Windows with which defendant was also affiliated. Defendant did not change the address of his business. The “bad checks” received from defendant were defendant’s checks, not those of his customers. On occasion, defendant would explain a “bad check” by stating that he had had a problem with a customer’s check.

Savides further testified that, from 1984 through 1986, he considered defendant to be an average businessman who placed a substantial number of orders but who had quite a few customers who were upset for one reason or another. By July 1987, defendant’s payments were not forthcoming. Savides continued to take orders from defendant until the fall of 1987. Some of defendant’s customers called Savides directly for information as to where their windows were. He would direct them to call defendant directly. Savides had no communication problem with defendant in 1987.

On redirect examination, Savides testified that there were some problems with defendant’s checks in the spring of 1987. Those checks were made up by the summer of 1987. According to Savides, the window installation business is seasonal with fall being the best in terms of placement of orders.

On re-cross-examination, Savides testified that as of February 3, 1988, defendant was behind with a total average of $20,964.73.

Dennis Jackson, Sr., president of Vinyl-1, testified that he first met defendant in approximately July 1987 and that defendant became a customer of Vinyl-1. He ceased doing business with defendant in November 1987. Between July 1987 and November 1987, defendant or his employees placed between $8,000 and $10,000 in orders with Vinyl-1.

Jackson further testified that from July to November 1987 defendant was on a credit basis with Vinyl-1. According to the business records of Vinyl-1, of the $8,000 to $10,000 of the orders placed by defendant, $1,884.82 is in arrears. Approximately 10 orders placed by defendant were not completed by Vinyl-1 because the Attorney General’s office instructed Jackson not to contact defendant’s customers.

On cross-examination, Jackson testified that defendant was placed on a COD basis because he did not pay his bills, but he did not remember when defendant was placed on a COD basis. Jackson only dealt with defendant’s company, Du Page Window and Lumber.

Allen McCreary, marketing director for Vinyl-1, testified that, as part of his duties in 1987, he was instructed to determine the amount of orders placed by the defendant it was currently processing and that a decision would then be made as to whether to continue to do business with defendant. McCreary reviewed the contracts of approximately 40 customers early in November 1987. At that time, none of the contracts were in default. The value of the contracts, including the windows and installation costs, was between $70,000 and $80,000. According to Mc-Creary, although Vinyl-1 attempted to complete the contracts, it was prevented from doing so because the then president of Vinyl-1, Eric Feldt, ordered work stopped on defendant’s orders after he received a call from the Attorney General’s office. It was after that Vinyl-1 terminated business with the defendant.

On cross-examination, McCreary testified that many of Vinyl-l’s contractors did not pay until the windows were installed. Not all of the windows of the $70,000 to $80,000 worth of orders were ever made. Only about $3,000 to $4,000 was owed to Vinyl-1.

Jay Deems testified that he is employed by Thermal Industries and was so employed in the Chicago area office in 1987. In preparation for his testimony, Deems was asked to review the records of Thermal Industries in connection with its dealings with the defendant.

Deems testified that in 1984 and 1985 Thermal Industries did business with the defendant as TRS Installations. The records from 1985 show that defendant picked up $50,000 worth of invoiced orders. The records for 1986 show that defendant picked up $175,000 worth of invoiced orders. According to the record, defendant was not in arrears to Thermal Industries at the end of 1986. The records for 1987 show that the defendant picked up $184,000 worth of invoiced orders.

Deems further testified that in February 1987 there were difficulties in collecting payment from the defendant, which got progressively worse. Defendant, did make payments to Thermal Industries in 1987, but Deems did not have the exact amounts. He did have the amount that defendant was in debt at the end of 1987 which was approximately $12,000, which meant defendant had paid somewhere in the amount of $172,000 to Thermal Industries during 1987.

Deems further testified that around October or November 1987 Thermal Industries began to refuse orders from the defendant because he was not picking up previous orders.

Deems further testified that at the beginning of 1987 defendant was placed on a COD basis with Thermal Industries. Around October or November 1987, Thermal Industries began to refuse orders from the defendant because he was not picking up previous orders. There was no record of either the Jozaitis or DiLallo order being placed with Thermal Industries.

Defendant testified that he had a high school education and during the 1970’s he drove a truck for a living. Late in the 1970’s, he worked for people in Villa Park who operated a window replacement business. He then went to work for a home improvement company in Downers Grove. He then returned to driving trucks. In 1984, he purchased the Villa Park store and started up TRS Installation. His primary supplier of doors and windows was Thermal Industries. He did not have a bookkeeper; either he or his secretary did the bookkeeping. Defendant never had been employed as a bookkeeper.

Defendant further testified that in 1985 TRS Installation placed between $225,000 and $250,000 worth of orders and in 1986 between $275,000 and $280,000 worth of orders. In 1987, defendant changed the name of his company to Du Page Window & Lumber Company because one company would not do business with him as an installation company unless he had a lumber company, and in some cases, he received a larger discount because of being a lumber company rather than an installation company.

Defendant further testified that he had three salesmen off and on during 1987 on a commission-only basis. He wrote the contracts himself, and whoever took the order signed the contract. He had several installers during 1987.

Defendant further testified the residential door and window business was a seasonal business, and he would do 50% of his business between September and December. From 1984 until late in 1986, his business was doing well. Late in 1986, he ran into cash flow problems which he eventually made up with his suppliers. In 1987, the cash flow problem reoccurred. Between March and November 1987, defendant refunded $10,000 to customers. In 1987 he had almost 200 customers. By the middle of October 1987, he had written approximately $290,000 worth of orders. He was unable to fulfill all of the contracts; everything that was coming in went to pay bills, and some $20,000 in bills were paid in the first part of October 1987. According to defendant, the stock market crash in the fall of 1987 also affected business. In November 1986, he did $85,000 in orders; however, in November 1987, he only did $4,000.

Defendant further testified that upon the taking of an order, he would take a 50% or less down payment from the customer. Although his credit status changed back and forth, by 1987, he was on a COD basis with all suppliers. By fall 1987, cash had stopped coming in, and he could not get installers who would do the work. According to defendant, he would leave enough of the contract amount unpaid which came close to the cost of fulfilling the contract and would take enough to cover operating expenses. Defendant admitted that he was writing more orders than he could fulfill in 1987 because he had run out of cash. He did recall placing the Jozaitis order with either Bradford or Advantec. Defendant did not dispute the fact that he defaulted on the contracts to various individuals who testified.

Defendant further testified that in fall 1987 he was sued civilly by the Attorney General and Du Page Window and Lumber went into receivership. Two weeks after he entered into a consent agreement with the Attorney General’s office, he was charged in the present case. Under the consent agreement, he was to make restitution.

On cross-examination, defendant testified that he was beginning to dig himself out of his financial problems by September and October 1987 but suffered a setback after the stock market crash in the fall of 1987. According to the defendant, all of the checks or cash he received from customers went to pay bills. Defendant admitted not returning all of the telephone calls to dissatisfied clients, but he did return a lot of them. He denied telling anyone he was bonded.

On redirect examination, defendant testified that in spring 1987 his checking account at West Suburban Bank was closed because of overdrafts. He was paying bills in cash. Defendant ended 1987 with approximately $187,000 in orders placed and $12,000 in defaulted payments.

Following argument, the trial court found the defendant guilty of the Jozaitis and DiLallo charges, stating as follows:

“There is going to be a guilty finding with respect to Jozaitis and DiLallo because based upon all the evidence that I heard, I think as of November, the evidence that I heard, I think as of November the evidence is that there was no way that the defendant was doing anything with respect to trying to get all of that business. He had been cut off from suppliers and I think at that time, at the time that those contracts were entered into, there was an intent not to complete those contracts in violation of the law.”

The defendant was sentenced as stated above, and this appeal followed.

Although the defendant has raised issues in regard to the constitutionality of the penalty portion of the Act, as well as the sentence he received, we need only address the first issue raised by defendant in order to resolve this case, namely, that defendant contends that he was not found guilty of aggravated home repair fraud beyond a reasonable doubt. A person commits aggravated home repair fraud when he knowingly enters into an agreement or contract, written or oral, with a person, 60 years of age or older, for home repair, and he knowingly misrepresents a material fact relating to the terms of the contract or agreement or the preexisting or existing conditions of any portion of the property involved, or creates or confirms another’s impression which is false and which he does not believe to be true or promises performance which he does not intend to perform or knows will not be performed. Ill. Rev. Stat. 1987, ch. 121½, pars. 1603,1605.

It is well established that the failure to fulfill a contract or to refund or repay money given a defendant does not alone establish that the defendant intended or knew he would not perform a contract. (People v. Jensen (1982), 103 Ill. App. 3d 451, 453.) Whether the specific intent to defraud exists is a question of fact that does not have to be proved by direct evidence. Direct evidence of this intent is rarely available, so circumstantial evidence may be sufficient to sustain a conviction. (People v. Rolston (1983), 113 Ill. App. 3d 727, 731.) Questions of fact and inferences to be drawn from the evidence are for determination by the trier of fact. Although the determinations of the trier of fact are entitled to great weight, a reviewing court still has an obligation to set aside a conviction when the evidence is so unsatisfactory that it raises a reasonable doubt of the defendant’s guilt. Rolston, 113 Ill. App. 3d at 731.

We note that defendant was indicted and tried on five counts of aggravated home repair fraud and one count of home repair fraud (because the victim was under 60 years old). The trial court found the defendant not guilty of all but the Jozaitis and DiLallo counts even though the defendant’s conduct in all of the counts was virtually identical. The sole distinction as pointed out by the trial court in its decision was the timing of the acceptance by the defendant of the orders. According to the trial court, the evidence showed that defendant could not have ordered windows because his suppliers were no longer willing to do business with him. Thus, the trial court concluded, at the time defendant accepted money from Jozaitis and DiLallo, he did not intend to fulfill the window replacement contract.

Raymond Jozaitis signed his contract with defendant on November 2, 1987, and Rocco DiLallo signed his contract with the defendant on November 10, 1987. Sam Savides, office administrator for Thermal Industries, one of defendant’s suppliers, testified that in the fall of 1987 Thermal Industries stopped taking orders from the defendant. However, Savides did not testify to an exact date or even when in the fall ordering stopped. Dennis Jackson, Sr., testified that Vinyl-1, another of defendant’s suppliers, testified that it was approximately November 1987 that Vinyl-1 stopped taking orders for the defendant. Jackson also testified that Vinyl-l’s relationship with the defendant was terminated by the beginning of December 1987. Allen McCreary testified that Vinyl-l’s decision to terminate business with defendant came as a result of a call from the Attorney General’s office. Although there is no testimony as to the exact date of their telephone call, the civil suit against defendant was not filed until December 1987.

We disagree with the trial court’s conclusion that the evidence showed that the defendant never intended to fulfill the contracts at the time he entered into them. The evidence is extremely sketchy as to when defendant’s suppliers ceased doing business with him. Given that both the Jozaitis and DiLallo contracts were entered into within the first 10 days of November, there is no direct evidence that the suppliers had ceased doing business with defendant as of November 10, 1987. Although Savides testified that it was in the fall that Thermal Industries ceased doing business with defendant, he did not state an exact date or even the exact month when the business relationship ceased. It is apparent from the testimony of Dennis Jackson, Sr., as well as that of Allen McCreary, that Vinyl-1 did not cease doing business with defendant until sometime in November. Finally, it is apparent from the testimony of Mc-Creary that at least Vinyl-1 would have continued to supply defendant with windows had not the Attorney General’s office intervened.

Thus, the evidence does not show beyond a reasonable doubt that as of November 10, 1987, defendant was cut off from his suppliers as the trial court had concluded. Since that was the basis for the trial court’s decision to find the defendant guilty of aggravated home repair fraud on the Jozaitis and DiLallo contracts, the defendant’s conviction on those counts must be reversed.

The judgment of the circuit court is reversed.

Reversed.

GEIGER, J., concurs.

JUSTICE INGLIS,

dissenting:

I dissent from the opinion of the majority. The majority concludes that defendant’s conduct in all six counts was virtually identical without giving appropriate consideration to the timing differences. The timing of defendant’s acceptance of the orders and his taking of money from the elderly victims were properly weighed by the trial judge. The trial court’s conclusion that, at the time he accepted money from Jozaitis and DiLallo, defendant did not intend to fulfill the window replacement orders was supported by the evidence.

As the majority correctly states, defendant’s intent is measured at the time he entered into the home repair contracts. I believe that a crucial phrase in the Home Repair Fraud Act (Ill. Rev. Stat. 1987, ch. 121½, par. 1601 et seq.) is found in section 3(a)(1), which states that a person commits home repair fraud when he enters into such a contract and knowingly “[m]isrepresents a material fact *** which he does not believe to be true, or promises performance which he does not intend to perform or knows will not be performed.” Ill. Rev. Stat. 1987, ch. 121½, par. 1603(a)(1).

Defendant had a trail of broken promises, false representations and lies stretching from March 12, 1987, when he dealt with Harold Johnson (age 76) to May 29, 1987, when he dealt with Jack White (age 62), and through September when he dealt with James Kneip (age 74) and Audrey Jensen. Defendant failed to perform, but continued to solicit orders and take money. When defendant solicited orders and took money from Raymond Jozaitis (age 70) on November 2, 1987, and Rocco DiLallo (age 70) on November 10, 1987, the record supports a conclusion beyond a reasonable doubt that defendant made these two promises of performance, yet did not intend to perform or knew that he would not be able to perform.

The innocent misrepresentations of a floundering businessman in March, May and September became criminal acts against two senior citizens in November. Defendant knew by November that he was lying to his customers. He knew in November that he had not completed several orders, yet he took money from both Jozaitis and DiLallo knowing he could not complete either order as promised. The trial judge evaluated the facts and circumstances presented and rejected the evidence and arguments now accepted by the majority.

The trial judge, as the trier of fact, was not required to accept the defendant’s version of the facts. It is not necessary that the evidence presented at trial exclude every possible doubt, so long as the entire chain of circumstances leads to a reasonable and moral certainty that the accused committed the crime. People v. Pintos (1988), 172 Ill. App. 3d 1096, 1101, aff’d (1989), 133 Ill. 2d 286.

The courts of Illinois have consistently held that the function of the trier of fact in criminal prosecutions is to determine the credibility of the witnesses, the weight to be given their testimony, and the inferences to be drawn from the evidence. (People v. Jaffe (1986), 145 Ill. App. 3d 840, 846.) In the present case, the trial judge resolved the credibility issue as to the defendant’s testimony in favor of the State’s witnesses.

The majority’s conclusion that “the evidence does not show beyond a reasonable doubt that as of November 10, 1987, defendant was cut off from his suppliers” misses the point. (222 Ill. App. 3d at 1049.) Defendant’s intention or knowledge that his promises could not be performed is the issue. Defendant’s continued nonperformance, repeated false promises, and lies support the trial court’s decision finding defendant guilty of aggravated home repair fraud on the Jozaitis and DiLallo contracts. I therefore dissent.


source: Caselaw Access Project

author: JUSTICE KNECHT

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DENNIS THOMAS, Defendant-Appellant.
    Fourth District
    No. 4—91—0221
    Opinion filed December 30,1991.
    Rehearing denied January 29,1992.

      Daniel D. Yuhas and Lori L. Mosby, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Craig H. DeArmond, State’s Attorney, of Danville (Kenneth R. Boyle, Robert J. Biderman, and Monroe D. McWard, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE KNECHT

delivered the opinion of the court:

Defendant, Dennis Thomas, was convicted by a Vermilion County jury of two counts of delivery of 15 grams, but less than 100 grams, of a substance containing cocaine. (Ill. Rev. Stat. 1989, ch. 56½, par. 1401(a)(2).) Defendant was tried jointly with codefendant Frank Miles, who was convicted as well. After a sentencing hearing, the court sentenced defendant to eight years’ imprisonment on each count and ordered the terms to be served concurrently. Defendant was granted credit for the 176 days he was in custody before sentencing. The court also imposed a $2,750 drug fine. Defendant appeals, arguing (1) the court erred by sustaining the State’s hearsay objection to testimony by the codefendant that, on the day the first delivery occurred, no conversation about drugs occurred between defendant and “the man with the cane,” who had allegedly delivered the drugs to an undercover agent; and (2) he is entitled to 177 days’ credit toward the sentence imposed, and (3) to $885 credit against his mandatory drug fine. We affirm defendant’s conviction and remand the case for a determination of the credit to which defendant is entitled against his mandatory fine.

The drug deliveries allegedly occurred on June 8 and 13, 1989. Rod Rodriquez, special agent with the Drug Enforcement Administration (DEA), testified that in April, May, and June 1989, he was working as an undercover agent in an investigation of William Taylor. As part of this investigation, on June 7, 1989, Rodriquez arranged to purchase an ounce of cocaine for $1,400 from Taylor. When they arrived at 1919 Cannon Street in Danville, Illinois, Rodriquez gave Taylor the money and Taylor went into the residence. He returned to the vehicle and told Rodriquez he had given Dennis the money but the cocaine had not arrived. They returned to this residence later. After entering the residence, Taylor told Rodriquez that defendant, Dennis Thomas, had said the cocaine would not arrive until noon. After another failed attempt to obtain the cocaine, Taylor was given a half gram of cocaine. At 5 p.m., Agent Casagrande replaced Rodriquez in surveilling defendant’s home. Casagrande met with Taylor across the street from the residence. Casagrande testified he stayed in his vehicle across the street from 5 p.m. until 1:25 a.m., except for two times when he went to meet with his superiors. Defendant exited the residence at one point and told Casagrande the cocaine would not arrive until 10 p.m., but if Casagrande waited he would find the cocaine to be real good. According to Casagrande, defendant left the residence that evening with codefendant Frank Miles, who was driving a white Oldsmobile.

A white Oldsmobile appeared in a nearby alley at 1:25 the next morning. Taylor left Casagrande’s vehicle, approached the Oldsmobile, leaned in, and retrieved something. He returned to Casagrande’s vehicle with a plastic bag of a white powdery substance.

Casagrande met with defendant on June 13, 1989, to arrange another deal. Defendant told Casangrande to phone him at 5 that evening. Casagrande’s 5 p.m. conversation with defendant had been recorded and was played to the jury. The tape recording indicated the parties arranged a cocaine purchase for 9 that evening. When Casagrande arrived to purchase the drugs, defendant was outside the residence. Casagrande also saw the codefendant, Frank Miles, and a female companion sitting in a tan Volvo. Defendant told Casagrande to give him the $1,350 for the cocaine and he would go with codefendant Miles to obtain it. Casagrande returned to his vehicle to wait. Defendant got into the codefendant’s vehicle and departed. Approximately an hour and a half later, a woman exited the residence and told Casagrande that defendant had called and stated Casagrande’s package was on the top step of the stairway to a residence across from 1919 Cannon Street. Casagrande retrieved the package.

Casagrande contacted defendant again July 12, 1989. The codefendant was also present when they met. Casagrande complained that defendant’s deals took too long. Defendant stated he thought Taylor may have overcharged Casagrande for the first purchase.

City of Danville police officer Larry Wilson testified he participated in the June 8, 9, and 13, 1989, surveillance of the drug transactions. He identified a white Oldsmobile he had seen outside the Cannon Street address at 10 p.m. on June 13. He had followed the vehicle until he heard from Casagrande that Casagrande had received the cocaine.

Illinois State Police officer Robert Putnam testified he was also involved in the surveillance of the drug transactions. He too, saw the white Oldsmobile on June 13 and followed it until the sale to Casagrande was complete.

Doug Eckerty, a special agent for the Vermillion County Metropolitan Enforcement Group, testified he, too, saw the white Oldsmobile parked outside 1919 Cannon Street on June 8, but he did not observe it on June 13.

Phylis Miles, codefendant’s wife, testified that on the evening of June 13, 1989, she and the codefendant went to defendant’s home in their Volvo. Defendant approached their car to talk with the codefendant. They dropped defendant off at a tavern and returned to their home. Although they owned an Oldsmobile, she stated it had been in Chicago for five days to a week.

Codefendant Frank Miles testified he knew defendant from work. On June 8, defendant was to sell a truck for him. After work on that day, he picked defendant up at home to go play pool at a tavern. Afterward they stopped for coffee and donuts. When they returned to defendant’s home early in the morning of June 9, they stopped across the street to speak with “a man with a cane.” According to codefendant Miles, no money was exchanged between defendant and the man with the cane. He saw defendant on June 13 to again discuss selling the truck. He dropped defendant off at a tavern and returned home. He was driving a Volvo. His wife had loaned their Oldsmobile to her sister.

Defendant’s attorney asked codefendant Miles whether, on the evening of June 8 or the early morning hours of June 9, he heard any conversation between defendant and “the man with the cane” regarding drugs. The State’s hearsay objection to codefendant’s answer to this question was sustained. Codefendant Miles testified “the man with the cane” did not reach into the vehicle at any time that evening. He also stated at no time did he see a plastic bag containing a white powdery substance. According to Miles, defendant never opened the passenger door, nor was the vehicle’s interior light turned on. At no time on June 13 did codefendant Miles see defendant with a plastic bag with a white powdery substance.

Defendant’s grandfather testified he was at defendant’s residence June 8, 1989, and did not see any white powder or drug paraphernalia in defendant’s possession. Defendant’s stepfather of eight years testified defendant had a reputation for being law abiding and for not being involved with drugs.

The jury convicted both defendant and codefendant Frank Miles of the June 8 and 13 drug deliveries. The court sentenced defendant to two concurrent eight-year terms of imprisonment, gave him credit for 176 days served, and also imposed a $2,750 drug fine.

Defendant first argues the court erred by sustaining the State’s objection to codefendant Frank Miles’ testimony about whether he heard any drug-related conversation between defendant and “the man with the cane,” presumably Taylor, on the morning of June 9, 1989. He contends this testimony was exculpatory and should have been permitted. According to defendant, it should not have been considered hearsay because it was not being offered to prove the truth of the matters asserted in the conversation. The State contends the testimony was hearsay. If the testimony was not hearsay, the State argues excluding it was harmless error.

The hearsay objection should not have been sustained. There was a conversation between Taylor and defendant. Miles overheard this conversation. Miles was asked the following on cross-examination: “And you didn’t hear any conversation regarding drugs between Dennis and the man with the cane?” That question would not elicit an answer directed at proving the truth of any matters asserted in the conversation. Instead, the question sought to elicit that a certain topic — drugs—was not mentioned. The editorial conclusion of Miles that he heard no conversation regarding drugs is not hearsay because it was not offered to prove the truth of any matter asserted in the out-of-court conversation. The court erred in sustaining the objection. The error was, however, harmless. A reviewing court should not reverse a conviction merely because of such an error unless the error could have affected the verdict. (People v. Tranowski (1960), 20 Ill. 2d 11, 17, 169 N.E.2d 347, 350; People v. Terry (1988), 177 Ill. App. 3d 185, 192, 532 N.E.2d 568, 573.) The evidence establishes defendant’s guilt beyond a reasonable doubt. The codefendant was permitted to testify he did not see any money exchanged, nor did he see defendant with any drugs at any time on June 9. Despite this evidence, the jury found both codefendant and defendant guilty of delivery of controlled substance on this date. The jury clearly did not view the codefendant as a credible witness. The additional testimony by him would not have changed the jury's verdict. Accordingly, the error does not require a new trial.

Defendant also argues he is entitled to $5-per-day credit toward his mandatory drug fine for time served in custody prior to his sentencing. The State concedes the law requires defendant receive this credit because he was not informed in writing by the clerk of the court after his conviction that he was entitled to it. (Ill. Rev. Stat. 1989, ch. 38, par. 110 — 14; People v. Johnston (1987), 160 Ill. App. 3d 536, 544, 513 N.E.2d 528, 534.) We remand defendant’s case to permit the trial court to determine the proper credit.

At the sentencing hearing, the trial judge credited defendant 176 days’ for time spent in custody before sentencing. Defendant argues he should have been credited 177 days. The record indicates defendant was arrested on January 8, 1990, and sentenced on March 20, 1991. It would appear defendant is entitled to either 176 or 177 days of credit dependent upon how the date of arrest and the date of sentencing are treated. The State, however, argues that defendant ought not receive double credit for the day he was given over to the Department of Corrections, and suggests this court remand the cause for completion of the record and issuance of an amended judgment order if appropriate. After the trial court determines the sentence credit to which defendant is entitled, it can compute the amount by which defendant’s fine must be credited.

We affirm defendant’s conviction and remand the case for a determination of the sentence credit to which defendant is entitled, as well as the credit against his mandatory fine.

Affirmed, and cause remanded.

GREEN, P.J., and McCULLOUGH, J., concur.


author: JUSTICE INGLIS

text:
    RONALD M. BRANSKY, Plaintiff-Appellant, v. SCHMIDT MOTOR SALES, INC., Defendant-Appellee.
    Second District
    No. 2—91—0487
    Opinion filed December 19, 1991.

      David N. Rechenberg, of O’Brien, Hanrahan, Wojcik & Fay, of Woodstock, for appellant.
    Michael T. Caldwell, of Caldwell, Berner & Caldwell, of Woodstock, for appellee.
   JUSTICE INGLIS

delivered the opinion of the court:

Plaintiff, Ronald M. Bransky, appeals from an order of the circuit court granting summary judgment in favor of defendant, Schmidt Motor Sales, Inc. The issue on appeal is whether defendant was a tenant at sufferance, as the trial court found, or a holdover tenant when defendant continued to occupy the premises and pay rent after the original six-month term of the lease had expired. Plaintiff asks that we reverse the trial court’s order which granted summary judgment to defendant and enter summary judgment in plaintiff’s favor, including damages of $6,942.18 plus costs and attorney fees.

The parties signed an industrial building lease for a term beginning February 20, 1982, through August 30, 1982. The monthly rent was $3,000. Defendant, as lessee, agreed to keep the premises in good repair and to pay utility bills and real estate taxes. A clause in the contract entitled “Termination: Holding Over” provided, in part:

“At the termination of the term of this Lease, by lapse of time or otherwise, Lessee will yield up immediate possession of the Premises to Lessor, in good condition and repair ***. If Lessee retains possession of the Premises *** after the termination of the term ***, then Lessor may at Lessor’s option within thirty (30) days after termination of the term serve written notice upon Lessee that such holding constitutes either (a) renewal of this lease for one (1) year, and at Lessor’s option from year to year thereafter, at double the rental ***, or (b) creation of a month-to-month tanancy [sic], upon the terms of this lease except at double the monthly rental ***, or (c) creation of a tenancy at sufferance at a rental of two hundred Dollars ($200.00) per day for the time Lessee remains in possession. If no such written notice is served, then a tenancy at sufferance with rental as stated at (c) shall have been created.”

The lease also included a confession of judgment clause which provided for plaintiff’s attorney fees.

On March 13, 1989, plaintiff filed suit. In his amended complaint, plaintiff alleged that upon the expiration of the written lease in 1982, the parties entered into an oral agreement extending the rental based on the same terms and conditions of the written lease. Plaintiff further alleged that in July 1985 the parties entered into another oral agreement extending the rental of the premises with the same terms and conditions as the earlier written lease, except that the rental amount increased to $4,000 per month. On April 30, 1987, defendant vacated the premises, although it had not paid rent for the month of April 1987 and had not paid the property taxes due that month. Plaintiff further alleged that he incurred $1,750 in repairs to the premises and, after applying the security deposit, defendant still owed plaintiff $3,297.18. Plaintiff requested judgment in the amount of $3,297.18 plus attorney fees, prejudgment interest and court costs.

In his evidence deposition, plaintiff testified that after the initial six-month term had expired, defendant remained in possession of the premises and continued to make the monthly rental payments of $3,000. In addition, according to plaintiff, he and defendant’s agent, George Schmidt, orally agreed to a $500 increase in the rental amount in January 1984, which was followed up by a letter from plaintiff. Defendant paid the increased rent and remained in possession of the premises. Plaintiff and Schmidt had a similar conversation in July 1985, which also was followed up by a letter confirming the increase in the amount of the rent. Defendant paid $4,000 per month from September 1985 through March 1987. Plaintiff also testified that, prior to 1986, defendant paid the real estate taxes as they became due, but in 1986 plaintiff began collecting money for the taxes monthly. In addition, plaintiff stated that after defendant vacated the premises, plaintiff paid $1,145 to have the furnace replaced and $1,250 to replace the water heater because both were inoperable.

Included in the record are copies of two letters sent by plaintiff to defendant. In the first letter, dated January 5, 1984, plaintiff wrote:

“In accordance with the terms of our expired lease, you are hereby notified that commencing February 1, 1984, your monthly rent will be at $3,500.00. There will be a renewel [sic] option in six months (August, 1984) at the same rental of $3,500.00 per month.

All other terms of the original lease shall remain the same.” The second letter, dated July 1, 1985, is identical, except that the rental amount was increased to $4,000.

Defendant moved for summary judgment, alleging that the lease became a nullity as of August 30, 1982. Defendant argued that plaintiff did not implement any of the holdover provisions, that as a matter of law defendant became a tenant at sufferance, and that none of the obligations of the lease survived.

In plaintiff’s motion for summary judgment, he alleged that defendant agreed to the extensions of the lease and paid rent to plaintiff until April 1, 1987. Plaintiff argued that he elected to treat defendant as a holdover tenant according to the same terms as the written lease. Plaintiff attached to the motion a copy of the bill for replacement of the furnace and a copy of the bill for replacement of the water heater.

The trial court denied plaintiff’s motion for summary judgment and granted defendant’s motion. Plaintiff then filed a motion to reconsider, which the court denied. Plaintiff’s timely appeal followed.

On appeal, plaintiff contends that the trial court erred in entering summary judgment in favor of defendant. Although plaintiff has not included a report of proceedings or a bystander’s report in the record, we may resolve the issue because it concerns whether summary judgment should have been granted as a matter of law. (See In re B.H. (1991), 218 Ill. App. 3d 583, 586.) Summary judgment is proper where there is no genuine issue of material fact, and judgment may be granted as a matter of law. (Mitchell v. Jewel Food Stores (1990), 142 Ill. 2d 152, 165.) The court must construe all pleadings, depositions, affidavits and admissions strictly against the movant. (Mitchell, 142 Ill. 2d at 165.) Where other facts are not in dispute, construing a contract as a matter of law may be suitable for summary judgment. (National Underground Construction Co. v. E.A. Cox Co. (1991), 216 Ill. App. 3d 130, 134.) “Here, then, our function is to determine whether the trial court correctly found that no genuine issue of material fact existed and also to determine whether judgment was correctly entered for the moving party as a matter of law.” Zale Construction Co. v. Hoffman (1986), 145 Ill. App. 3d 235, 241.

The parties agree that the trial court found that defendant was a tenant at sufferance. A “tenant at sufferance” is “one [who] comes into the possession of property by lawful title, but wrongfully holds over after the termination of his interest.” (Black’s Law Dictionary 1466 (6th ed. 1990).) The right of a tenant at sufferance is limited to possession only, which the landlord may terminate at any time, without notice. Heller v. Goss (1980), 80 Ill. App. 3d 716, 719.

The failure of a tenant to vacate the premises following the expiration of a lease term may create a tenancy at sufferance or a holdover tenancy. (See Troccoli v. L & B Products of Illinois, Inc. (1989), 189 Ill. App. 3d 319, 321.) In cases where courts have determined that a tenancy at sufferance was created, the landlord either notified the tenant to vacate the premises or filed a forcible entry and detainer action (see, e.g., Troccoli, 189 Ill. App. 3d at 322; Bradley v. Gallagher (1973), 14 Ill. App. 3d 652, 655), or the person in possession was a subtenant of a life tenant who had died (Peters v. Balke (1897), 170 Ill. 304, 315). We deduce from these cases that the essence of a tenancy at sufferance is that the tenant has maintained possession wrongfully, that is, without the landlord’s permission. Whether defendant was a tenant at sufferance or a holdover tenant is significant because a landlord cannot enforce covenants of an original lease against a tenant at sufferance. Troccoli, 189 Ill. App. 3d at 322.

Plaintiff argues that defendant was not a tenant at sufferance, but was a holdover tenant. We agree. If a lessee holds over after the expiration of the term of a lease, only the lessor, not the lessee, has the right to decide whether to treat the lessee as a holdover tenant. (Bismarck Hotel Co. v. Sutherland (1980), 92 Ill. App. 3d 167, 171.) In the absence of evidence to the contrary, a presumption arises that there is a holding over under the terms of the original lease. (Bellows v. Ziv (1962), 38 Ill. App. 2d 342, 347-48.) As the court in Bellows explained:

“The holding over does not renew or extend the lease but it creates a new tenancy from year to year. Such tenancies are the creation of judicial decisions based upon principles of policy and justice and are indefinite as to duration. Such a tenancy has many of the qualities of a tenancy for a definite term of years, but substantially it is a tenancy at will except that it cannot be terminated without notice to quit.” Bellows, 38 Ill. App. 2d at 348.

However, the original lease term here was for six months. Our supreme court addressed such a situation in Prickett v. Ritter (1854), 16 Ill. 96:

“Where a party enters upon premises undera [sic] a leas [sic] for a year or years, and holds over, it will be construed as an implied agreement for a year, and from year to year. Where the lease is for any period less than a year, the holding will be construed as being for another term of the same length of time; and in all cases as upon the same terms, as to the amount of rent and times of payment, unless there be some act of one or both of the parties to rebut such an implication.” Prickett, 16 Ill. at 97.

Defendant argues that the tenancy could not be a holdover tenancy because plaintiff could not raise the rental amount during the term of the lease and, consequently, defendant was a tenant at sufferance. This argument is without merit. The evidence demonstrates that each rental increase was made at the end of a six-month term.

The letters from plaintiff to defendant indicate that defendant remained in possession of the premises with plaintiff’s permission under the same terms as the original lease. Since plaintiff did not charge defendant $200 per day in accordance with the lease provisions for a tenant at sufferance and defendant was not wrongfully in possession, the tenancy could not have been one at sufferance. Either the arrangement was a series of common-law holdover tenancies, or it was a series of new, oral leases.

For a valid contract to be formed, the terms of the agreement must be definite and certain, and there must be mutual assent to those terms. (Academy Chicago Publishers v. Cheever (1991), 144 Ill. 2d 24, 29-30.) When a contract incorporates another document by reference, the terms of that document become a part of the contract. (Wilson v. Wilson (1991), 217 Ill. App. 3d 844, 853.) The letters referred to the original lease agreement by reference and expressly incorporated its terms, except for the amount of rent. Thus, either all the terms were holdover tenancies, or only the first and second were holdover tenancies, and the remaining terms were individual, oral leases based on the terms of the original lease (see Bismarck Hotel Co. v. Sutherland (1988), 175 Ill. App. 3d 739, 745-46). In either scenario, defendant was not a tenant at sufferance, and the trial court erred in entering summary judgment for defendant. We therefore reverse the portion of the trial court order which granted summary judgment to defendant.

Plaintiff next asks this court to reverse the portion of the trial court order which denied his motion for summary judgment. While the denial of a motion for summary judgment is not ordinarily appealable, such a denial is reviewable where the case is before this court on appeal from a final judgment and there has been no trial or evidentiary hearing. (Regnery v. Regnery (1991), 211 Ill. App. 3d 607, 613; see Deerfield Management Co. v. Ohio Farmers Insurance Co. (1988), 174 Ill. App. 3d 837, 839-40.) Here, since the grant of summary judgment to defendant is a final judgment properly before this court, we may also properly review the denial of plaintiff’s motion for summary judgment. Based on our prior analysis of the issues here, we conclude that the trial court erred in denying plaintiff’s motion for summary judgment. We therefore enter summary judgment in favor of plaintiff as matter of law.

Plaintiff’s motion for summary judgment before the trial court requested $6,942.18 ($4,000 unpaid April 1987 rent, $547.18 unpaid April 1987 real estate taxes, $1,145 for the furnace, and $1,250 for the water heater) plus attorney fees and costs. Plaintiff’s calculations, however, omitted the $3,000 security deposit that defendant gave plaintiff in 1982. Since plaintiff’s evidence deposition supplied the requisite evidentiary facts to establish the amount of damages and defendant did not present any evidence to contradict plaintiff’s evidence, the amounts stated by plaintiff must be taken as true. (See Olaf v. Christie Clinic Association (1990), 200 Ill. App. 3d 191, 194.) We remand the cause to the trial court for entry of an award of damages of $3,942.18 ($547.18 for real estate taxes due; $1,145 for the furnace; $1,250 for the water heater; and $4,000 unpaid rent minus the $3,000 security deposit plaintiff retained) and for a hearing to determine the amount of attorney fees and costs.

The order of the circuit court is reversed, and the cause is remanded.

Reversed and remanded.

McLAREN and UNVERZAGT, JJ., concur.


author: JUSTICE McLAREN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WAYNE E. MACKINS, Defendant-Appellant.
    Second District
    No. 2—90—0188
    Opinion filed December 17,1991.

      G. Joseph Weller and Manuel S. Serritos, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Michael J. Waller, State’s Attorney, of Waukegan (William L. Browers and Martin P. Moltz, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McLAREN

delivered the opinion of the court:

Defendant, Wayne E. Mackins, appeals from an order of the circuit court of Lake County which dismissed his petition for relief pursuant to section 2 — 1401 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1401). Defendant raises two issues on appeal: (1) whether the trial court erred in dismissing the petition without a hearing; and (2) whether, alternatively, the petition should have been considered a petition pursuant to the Post-Conviction Hearing Act (Ill. Rev. Stat. 1989, ch. 38, par. 122 — 1 et seq.) which was adequate to require the trial court to appoint counsel for defendant. We affirm.

Defendant was found guilty following a bench trial of the offense of residential burglary (Ill. Rev. Stat. 1989, ch. 38, par. 19 — 3(a)) and was sentenced to a term of 15 years’ imprisonment. This court affirmed defendant’s conviction on direct appeal. (People v. Mackins (2d Dist. Sept. 26, 1990), No. 2 — 89—0300 (unpublished order under Supreme Court Rule 23).) In his direct appeal, defendant argued that the State failed to prove beyond a reasonable doubt that he had the requisite intent to commit residential burglary. In our order, we extensively discussed the evidence presented at trial, including the testimony of three police officers, and concluded that a reasonable inference from the facts presented was that defendant made an unauthorized entry into a residence with the intent to commit a theft therein.

Defendant had testified at trial that he entered the residence by reaching in and unlocking the back door and pushing a refrigerator away from the doorway. He stated that he entered the residence because he wanted to sleep. He thought it was his ex-girlfriend’s mother’s house, which he had visited on two occasions more than six months prior to the occurrence. The police officers testified that they saw defendant moving about in the house and found the mattress and box spring askew in the bedroom of the house.

On January 17, 1990, defendant, pro se, filed a petition for post-judgment relief pursuant to section 2 — 1401 of the Code (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1401). He also filed a motion for the appointment of counsel. In the petition, defendant alleged that the police officers who testified at trial committed perjury. Defendant pointed out, in a rambling manner, that there were inconsistencies between the officers’ trial testimony and a police report and between the trial testimony and the testimony of Richard McKissick, the police officer who testified at defendant’s preliminary hearing. At the preliminary hearing, McKissick testified that he went to the scene of the burglary sometime after four other officers had responded to a report of a burglary in progress. McKissick essentially related his recollection of what one of the other officers told him about the events after the officers responded to the call. McKissick did not testify at trial.

Defendant also detailed some inconsistencies in the trial testimony of the officers. Defendant observed that there were inconsistencies in the testimony regarding which light was on in the residence when the officers arrived and whether Officer Brown was involved in investigating the premises. In addition, defendant generally alleged that the police officers’ testimony was choreographed and “coached and led on by the State.” Defendant had earlier filed two affidavits in which he stated that McKissick and the three officers who testified at trial committed perjury and subornation of perjury.

A hearing was held regarding defendant’s petition on January 30, 1990. An assistant public defender was present at the hearing but stated that no counsel had been appointed for defendant. The trial judge stated that he' found that the petition was frivolous and patently without merit. An order was entered which dismissed the petition. This timely appeal followed.

On appeal, defendant first argues that the trial court considered defendant’s petition to be a post-conviction petition which could be dismissed without a hearing. (See Ill. Rev. Stat. 1989, ch. 38, par. 122 — 2.1(a).) Defendant contends that a section 2 — 1401 petition, however, is the proper procedure for obtaining relief from a judgment based on perjured testimony and could not be dismissed without a hearing.

In order to be entitled to post-judgment relief under section 2 — 1401, a petitioner “must affirmatively set forth specific factual allegations supporting each of the following elements: (1) the existence of a meritorious defense or claim; (2) due diligence in presenting this defense or claim to the circuit court in the original action; and (3) due diligence in filing the section 2 — 1401 petition for relief.” Smith v. Airoom, Inc. (1986), 114 Ill. 2d 209, 220-21; see also People v. Smith (1989), 188 Ill. App. 3d 387, 391.) The petition must establish adequate grounds for relief and must show that the party seeking the relief was not negligent in failing to raise that ground at trial. People v. Sanchez (1986), 115 Ill. 2d 238, 284; Smith, 188 Ill. App. 3d at 392.

The petition filed by defendant failed to meet these standards. The allegations made were not sufficient to establish that perjury was committed at trial. Also, defendant did not allege anything in the petition that was not known at the time of trial. We conclude that the petition was therefore properly dismissed.

Defendant is correct that section 2 — 1401 “ ‘provides a basis for obtaining relief from a judgment based upon perjured testimony.’ ” (People v. Steidl (1991), 142 Ill. 2d 204, 253, quoting People v. Jennings (1971), 48 Ill. 2d 295, 298.) However, the cases relied upon by defendant, People v. Berland (1978), 74 Ill. 2d 286, 316, People v. Jennings (1971), 48 Ill. 2d 295, 298, and People v. Lewis (1961), 22 Ill. 2d 68, 70, do not support defendant’s position that such a petition cannot be dismissed without an evidentiary hearing. In fact, in all three cases cited, the court held that the petition or petitions at issue were properly dismissed. Berland, 74 Ill. 2d at 316-17; Jennings, 48 Ill. 2d at 300; Lewis, 22 Ill. 2d at 71-72.

In Berland, the court held that the defendant’s petition was properly dismissed where the petition did not support a charge of perjury and therefore offered no basis for an evidentiary hearing. The court noted that discrepancies in the description of the defendant and variations in what different witnesses reported they saw do not indicate perjury. Berland, 74 Ill. 2d at 316-17.

The same is obviously true here. We note that the inconsistencies pointed out by defendant relate only to minor details. “Mere inconsistencies in testimony do not establish perjury” (People v. Amos (1990), 204 Ill. App. 3d 75, 85) and go only to the weight and credibility of the evidence (People v. Tyner (1968), 40 Ill. 2d 1, 3; People v. Moore (1990), 199 Ill. App. 3d 747, 766; People v. Foster (1989), 190 Ill. App. 3d 1018, 1030). We also note that the discrepancies are insignificant considering that defendant admitted that he entered and was in the house. Absent inconsistent circumstances, an inference of an intent to commit theft which will sustain a conviction of burglary arises when there is evidence of unlawful breaking and entry into a building where a theft could occur. People v. Johnson (1963), 28 Ill. 2d 441, 443; People v. Coleman (1990), 203 Ill. App. 3d 83, 89; In re P.A.G. (1990), 193 Ill. App. 3d 601, 603.

Further, McKissick, who testified at the preliminary hearing, was testifying regarding his recollection of a report which another officer gave to him. The fact that this testimony was not exactly the same as that presented at trial is not surprising and does not show that perjury was committed.

Defendant next argues, in the alternative, that his petition should have been considered a petition pursuant to the Post-Conviction Hearing Act (Ill. Rev. Stat. 1989, ch. 38, par. 122 — 1 et seq.) as it “unequivocally raised the inference that his original trial attorney was ineffective.” He contends that this is true because his trial counsel “failed to impeach the police officers.” He argues that the petition, although inartfully drawn, was sufficient to require the appointment of counsel and a hearing. Again, we disagree.

The petition clearly stated that it was brought pursuant to section 2 — 1401 of the Code and nowhere alleged ineffective assistance of counsel. Defendant has cited no authority for his argument that the petition should be considered an ineffective assistance of counsel claim. It is obvious that a court is not required to “infer” allegations that are not made. We also note that the allegations in the petition totally fail to establish any ineffective assistance of counsel. Furthermore, even if the petition was considered a petition for post-conviction relief, we conclude that it was properly dismissed.

A post-conviction petitioner is entitled to have counsel represent him regarding the petition once he sets out allegations demonstrating a meritorious constitutional claim. (See People v. Porter (1988), 122 Ill. 2d 64, 74.) Counsel need not be appointed and a hearing need not be held if the claim is frivolous and patently without merit. See Ill. Rev. Stat. 1989, ch. 38, par. 122 — 2.1(a)(2).

A post-conviction petition, in unusual circumstances, may be used to remedy a claim of perjury. (People v. Del Vecchio (1989), 129 Ill. 2d 265, 280.) The court in Del Vecchio determined that a claim of perjury does not “rise to a constitutional violation” requiring an evidentiary hearing where it is based solely on inconsistencies or improbabilities in the testimony. (Del Vecchio, 129 Ill. 2d at 280-81; see also People v. Doherty (1966), 36 Ill. 2d 286, 289.) As we discussed previously, “such matters concern the weight and credibility of the evidence and go to the issue of guilt or innocence.” Del Vecchio, 129 Ill. 2d at 280; see also People v. Tyner (1968), 40 Ill. 2d 1, 3.

In this cause, defendant alleged only minor inconsistencies in the police officers’ testimony. The petition, if considered a post-conviction petition, was frivolous and patently without merit and was properly dismissed.

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

Affirmed.

UNVERZAGT and INGLIS, JJ., concur.


author: JUSTICE WOODWARD

text:
    MARION W. SAPP, Jr., Appellant, v. THE INDUSTRIAL COMMISSION et al. (Clifford-Jacobs Forging Company, Appellee).
    Fourth District (Industrial Commission Division)
    No. 4—91—0073WC
    Opinion filed November 7,1991.
    Rehearing denied January 30, 1992.

      Perz, Condon & Ridge, of Chicago (Leslie T. Johnson, of counsel), for appellant.
    Robert A. Hoffman, of Thomas, Mamer & Haughey, of Champaign, for appellee.
   JUSTICE WOODWARD

delivered the opinion of the court:

Claimant, Marion Sapp, filed a claim seeking benefits from his employer, Clifford-Jacobs Forging Company. The arbitrator found that the claimant had sustained accidental injuries arising out of and in the course of his employment by the employer. However, the arbitrator denied benefits on the basis that claimant had failed to prove a causal connection between his present condition of ill being and the accidental injuries he suffered.- The Illinois Industrial Commission (Commission) reversed the arbitrator’s denial of benefits and awarded benefits. Both parties appealed the Commission’s decision to the circuit court of Champaign County. The circuit court, holding the Commission’s decision to be against the manifest weight of the evidence, set aside the decision of the Commission and reinstated the decision of the arbitrator denying benefits to claimant. Claimant appeals.

On appeal, claimant raises the following issues for review: whether the decision of the Commission that claimant proved a causal relationship between his accidental injury and his present condition of ill being was against the manifest weight of the evidence; and whether the Commission’s refusal to order the employer to pay certain medical bills was against the manifest weight of the evidence.

We note at the outset that the record on appeal in this case consists solely of the pleadings before the circuit court and copies of the decisions of the Commission and the arbitrator. Although claimant’s appellate brief contains citations to a transcript and to exhibits, there are no transcripts, no medical records, doctors’ reports or exhibits of any kind. Thus, there is no record for this court to review the decision of the circuit court or to determine whether or not the Commission’s decision was against the manifest weight of the evidence.

The responsibility for the proper preservation of the record of proceedings before the trial court rests on the appellant. (Neylon v. Illinois Racing Board (1978), 66 Ill. App. 3d 621, 623.) Where a party desires to have a judgment reviewed, it is incumbent upon him to present the record of the proceedings and judgment sufficient to show the errors of which he complains. (Neylon, 66 Ill. App. 3d at 623.) Any doubt arising from the incompleteness of the record will be resolved against the appellant. Teitelbaum v. Reliable Welding Co. (1982), 106 Ill. App. 3d 651, 661.

The record before us contains no transcripts, medical records or doctors’ reports. Without these documents, we are unable to review the decision of the circuit court or to determine whether the Commission’s decisions regarding causal connection and the payment of the claimant’s medical expenses were against the manifest weight of the evidence. The cause must be resolved against the claimant.

We note that our inability to review this cause on the merits is a direct result of the failure to file a complete record on appeal. While we may appear to be stating the obvious, in light of the result in this cause, appellate counsel are urged to make certain that the records on appeal contain all of the necessary transcripts, etc., to enable this court to review the issues raised on their merits. Merely citing to such documents in the briefs, while required (134 Ill. 2d Rules 341(e)(6), (e)(7)), is not sufficient. The record on appeal must contain the actual transcripts, etc., cited to in the briefs.

The judgment of the circuit court is affirmed.

Affirmed.

McCULLOUGH, P.J., and RAKOWSKI, STOUDER, and LEWIS, JJ., concur.


author: JUSTICE NICKELS

text:
    THOMAS C. ROSER, Plaintiff-Appellee, v. KAREN ANDERSON, Defendant (Government Employees Insurance Company, Inc., Defendant-Appellant).
    Second District
    No. 2—91—0297
    Opinion filed December 16,1991.

      Robert Marc Chemers, of Pretzel & Stouffer, Chartered, of Chicago (Scott 0. Reed, of counsel), for appellant.
    Law Offices of G. Douglas Grimes, of Waukegan (G. Douglas Grimes, of counsel), for appellee.
   JUSTICE NICKELS

delivered the opinion of the court:

Defendant Government Employees Insurance Company, Inc. (GEICO), appeals the trial court’s grant of summary judgment in favor of plaintiff, Thomas C. Roser, who was GEICO’s insured. GEICO asserts that the court erred in finding as a matter of law that section 143a — 2(2) of the Illinois Insurance Code (the Insurance Code) (Ill. Rev. Stat. 1987, ch. 73, par. 755a — 2(2)) did not relieve GEICO of the obligation to offer plaintiff additional uninsured motorist coverage in 1989 when plaintiff renewed his policy of insurance with GEICO and increased his limits of bodily injury liability coverage above the statutory minimum.

Plaintiff first purchased automobile insurance from GEICO in 1981, at which time he purchased both bodily injury liability coverage and uninsured motorist coverage at the then statutorily mandated minimum of $15,000 per individual and $30,000 per occurrence (Ill. Rev. Stat. 1981, ch. 95½, par. 7 — 203), which were automatically increased in 1988 to $20,000/$40,000 when the statutory minimum limits were increased (Ill. Rev. Stat. 1989, ch. 95½, par. 7 — 203). Every six months until February 1989 plaintiff continued to renew such insurance coverage but always at the minimum limits allowed. However, in February 1989, plaintiff increased his bodily injury liability coverage to $50,000/$100,000.

In May 1989, plaintiff was involved in an auto accident. The operator of the other car, defendant Karen Anderson, paid to plaintiff Anderson’s bodily injury policy limits of $25,000, which was insufficient to pay all of plaintiff’s expenses. Plaintiff then sought declaratory relief to reform his policy of insurance with GEICO to provide $50,000/$100,000 uninsured and underinsured motorist coverage based on GEICO’s failure to offer additional uninsured motorist coverage to plaintiff at the time when plaintiff increased his bodily injury liability coverage in February 1989. As an affirmative defense, GEICO asserted that the Insurance Code provided that in a renewal or supplemental policy of insurance an insurer need not offer additional uninsured motorist coverage to an insured who had elected either less uninsured coverage than his bodily injury liability limits or rejected bodily injury limits in excess of the statutory minimum. Ill. Rev. Stat. 1987, ch. 73, par. 755a — 2(2).

The parties stipulated that GEICO neither offered plaintiff additional uninsured motorist coverage in 1989 nor did plaintiff request such coverage in writing at that time. Plaintiff further alleged that GEICO never offered plaintiff additional uninsured motorist coverage prior to 1989, an assertion that GEICO did not deny or contradict.

The court struck GEICO’s defense as a matter of law, granted plaintiff’s motion for summary judgment, and reformed plaintiff’s insurance policy to provide uninsured and underinsured motorist coverage of $50,000/$100,000. GEICO filed its original notice of appeal (Roser v. Anderson, No. 2 — 90—0660, June 15, 1990). Subsequently both Roser and GEICO filed timely cross-motions in the trial court for sanctions (134 Ill. 2d R. 137). The trial court denied GEICO’s motion for sanctions. However, the trial court reserved ruling on Roser’s motion pending our disposition of GEICO’s appeal. We dismissed GEICO’s appeal for lack of jurisdiction, finding both that the timely motions for sanctions rendered GEICO’s initial notice of appeal ineffective, and, absent a finding that there was no just reason to delay enforcement or appeal pursuant to Supreme Court Rule 304(a), no final and appealable order was presented. (Cashmore v. Builders Square, Inc. (1990), 207 Ill. App. 3d 267.) The court having now made such a finding, GEICO again appeals.

GEICO asserts that the court incorrectly interpreted section 143a — 2(2) of the Insurance Code relative to its affirmative defense. GEICO asserts that plaintiff’s increase in his bodily injury liability limits in 1989 was nevertheless a “renewal or supplementary policy” (Ill. Rev. Stat. 1987, ch. 73, par. 755a — 2(2)), and plaintiff’s decision in 1981 to purchase the minimum limits of coverage was a rejection of “limits in excess of that required by law.” (Ill. Rev. Stat. 1987, ch. 73, par. 755a — 2(2).) Thus, GEICO asserts that section 143a — 2(2) relieved it of its obligation to offer uninsured motorist coverage to plaintiff in 1989 when he increased his bodily injury liability limits above the statutory minimum.

In contrast, plaintiff asserts that section 143a — 2(1) requires that an insurer at some time provide an insured with the opportunity and information necessary to make an informed election either to purchase or to reject additional uninsured motorist coverage before the renewal exception of section 143a — 2(2) is effective. Because GEICO never made such offer or supplied such information, section 143a— 2(2) is inapplicable. Moreover, plaintiff argues that GEICO’s position is contradicted by existing law and seeks the imposition of sanctions (134 Ill. 2d R. 137).

Initially we address GEICO’s assertion that this is a question of first impression and, in contrast, plaintiff’s contention that GEICO’s appeal is frivolous in light of the existing precedent and warrants the imposition of sanctions (134 Ill. 2d R. 375(b)). Section 143a and its predecessors have been subjected to judicial construction on numerous occasions. (E.g., Fuoss v. Auto Owners (Mutual) Insurance Co. (1987), 118 Ill. 2d 430; Cloninger v. National General Insurance Co. (1985), 109 Ill. 2d 419.) However, the issue in such cases has been the adequacy of the offer made by the insurer and the effect of an inadequate offer, which results in the implication by law of increased coverage. See Rutter v. Horace Mann Insurance Co. (1989), 190 Ill. App. 3d 467, 478.

The issue now before us is distinguishable because it is undenied that no offer of either uninsured or underinsured motorist coverage was ever made. Rather, because plaintiff initially purchased bodily injury liability and uninsured motorist coverage at the statutorily mandated minimum limits, the purchase of additional uninsured or under-insured motorist coverage was precluded. Therefore, the necessity to offer any additional uninsured or underinsured motorist coverage was equally precluded. Thus, the issue presented here is whether the initial purchase of one type or amount of coverage is an election to reject all future other possible coverage. Notwithstanding the abundance of precedent on the issue of offers of uninsured and underinsured motorist coverage, which is instructive in determining the legislative intent in this instance, GEICO is correct in its contention that this is a question of first impression, and this is neither a frivolous appeal nor an appropriate situation for the imposition of sanctions.

It is fundamental that our overriding objective in interpreting section 143a — 2(2) of the Insurance Code is to ascertain and give effect to the intent of the legislature. (M.I.G. Investments, Inc. v. Environmental Protection Agency (1988), 122 Ill. 2d 392, 397.) Equally fundamental are the maxims that guide our determination of the legislative intent. We must look first to the plain language of the statute. (Lake County Board of Review v. Property Tax Appeal Board (1989), 192 Ill. App. 3d 605, 616-17.) Language is to be given its ordinary and popularly understood meaning. (People v. Haywood (1987), 118 Ill. 2d 263, 276.) In addition to the language so chosen by the legislature, the court should consider the reason for the law, the evil to be remedied, and the purpose to be obtained thereby. People v. Alejos (1983), 97 Ill. 2d 502, 511.

In determining the intent of the legislature, we must consider the statute as a whole and construe each part or section together with every other part or section and not any part alone. (Castaneda v. Illinois Human Rights Comm’n (1989), 132 Ill. 2d 304, 318.) Whenever possible, every word, clause, and section of a statute should be attributed some reasonable meaning. (In re Marriage of Freeman (1985), 106 Ill. 2d 290, 297.) An interpretation that avoids absurd results is favored (Stewart v. Industrial Comm’n (1987), 115 Ill. 2d 337, 341), and an interpretation that renders any part of the statute superfluous must also be avoided. People v. Singleton (1984), 103 Ill. 2d 339, 345.

The Insurance Code required GEICO to provide underinsured motorist coverage to plaintiff in an amount equal to the amount of uninsured motorist coverage provided (Ill. Rev. Stat. 1985, ch. 73, par. 755a — 2(5)). Plaintiff sought to reform the amount of underinsured motorist coverage of his policy of insurance with GEICO, which was thus determined by the amount of his uninsured motorist coverage. The uninsured motorist coverage requirements of the Insurance Code are, therefore, directly at issue in this instance, and GEICO’s initial argument that the uninsured motorist coverage requirements of the Insurance Code are not relevant to plaintiff’s claim is without merit. (See Rutter, 190 Ill. App. 3d at 478 (inadequate offer of uninsured motorist coverage should result in implication of underinsured motorist coverage equal to bodily injury liability limits); Eipert v. State Farm Mutual Automobile Insurance Co. (1989), 189 Ill. App. 3d 630, 637 (failure to plead uninsured motorist coverage provisions of Insurance Code fatal to plaintiff’s claim for underinsured motorist coverage).) We thus turn to the uninsured motorist coverage requirements of the Insurance Code applicable to plaintiff’s policy of insurance in February 1989, which provided:

“§143a — 2. (1) Required offer of additional uninsured motor vehicle coverage. No policy insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance or use of a motor vehicle-shall be renewed or delivered or issued for delivery in this State with respect to any motor vehicle registered or principally garaged in this State unless uninsured motorist coverage as required in Section 143a of this Act is offered in an amount up to the insured’s bodily injury liability limits.
(2) Right of election or rejection of additional uninsured motorist coverage. The named insured may elect to purchase limits of uninsured motorist coverage in an amount up to the bodily injury liability limits on the insured motor vehicle or reject the offer of additional uninsured motorist coverage provided that the uninsured motorist coverage maintained on such vehicle is not less than the limits as set forth in Section 7 — 203 of the Illinois Vehicle Code. In those cases where the insured has elected to purchase limits of uninsured motorist coverage which are less than bodily injury liability limits or rejects limits in excess of those required by law, the insurer need not offer in any renewal or supplementary policy, coverage in excess of that elected by the insured in connection with a policy previously issued to such insured by the same insurer unless the insured subsequently makes a written request for such coverage.” Ill. Rev. Stat. 1987, ch. 73, par. 755a — 2.

Because an insured may not purchase uninsured motorist coverage in excess of his bodily injury liability coverage, GEICO was under no obligation to offer plaintiff additional uninsured motorist coverage prior to 1989 when plaintiff had only the statutory minimum bodily injury liability coverage. (See Fuoss, 118 Ill. 2d at 435 (purchase of more protection for insured in uninsured motorist coverage than provided to public in bodily injury liability coverage is “repugnant to our system of justice”).) However, in 1989 an insurer was required to offer an insured the opportunity to purchase additional uninsured motorist coverage in an amount up to the insured’s bodily injury coverage if such bodily injury liability coverage was in excess of the statutory minimum, and no policy of insurance was to be renewed absent such offer. (Ill. Rev. Stat. 1987, ch. 73, par. 755a — 2(1).) Thus, GEICO was required to offer plaintiff uninsured motorist coverage of $50,000/$100,000 in 1989 when it renewed plaintiff’s insurance policy, and GEICO’s admitted failure to so do justifies reformation of the policy to include such uninsured and underinsured motorist coverage. See Makela v. State Farm Mutual Automobile Insurance Co. (1986), 147 Ill. App. 3d 38, 42; Tucker v. Country Mutual Insurance Co. (1984), 125 Ill. App. 3d 329, 337 (additional underinsured motorist coverage will be implied by" law into policy if insured fails to offer either such insurance or uninsured motorist coverage).

However, GEICO asserts that section 143a — 2(2) of the Insurance Code renders plaintiff’s initial purchase of the minimum statutorily required bodily injury liability coverage in 1981 a rejection of excess uninsured motorist coverage. Such an interpretation of the statute is unwarranted for several reasons.

First, the interpretation of section 143a — 2(2) of the Insurance Code urged by GEICO would render the inclusion of the term “renewed” in section 143a — 2(1) mere surplusage and meaningless. If an initial purchase of statutory minimum levels of bodily injury liability coverage was to be construed as an election not to purchase additional uninsured motorist coverage, then an offer of additional uninsured motorist coverage would never be necessary in a renewed policy. The prohibition that “[n]o policy *** shall be renewed *** unless uninsured motorist coverage *** is offered in an amount up to the insured’s bodily injury liability limits” (Ill. Rev. Stat. 1987, ch. 73, par. 755a — 2(1)) would be meaningless.

Second, the language of section 143a — 2(2) itself plainly requires that an insured reject limits of uninsured motorist coverage in excess of that required by law. “Reject” is commonly defined as “to refuse to take, agree to, accede to, use, believe, etc.” (Webster’s New Universal Unabridged Dictionary 1524 (2d ed. 1983)), and “rejection,” a term having legal significance, is defined as an offeree’s communication to an offeror that the terms of the offeror’s proposal are refused (Black’s Law Dictionary 1288 (6th ed. 1990)). Similarly, “election” is defined both by Webster and Black as “the act of choosing,” and Webster further defines “election” in a legal context as “the choice between two rights mutually inconsistent or alternatives. (Emphasis added.) (Black’s Law Dictionary 517 (6th ed. 1990); Webster’s New Universal Unabridged Dictionary 582 (2d ed. 1983).) Thus, some action on GEICO’s part offering plaintiff additional uninsured motorist coverage or informing plaintiff that such coverage was available was necessary before plaintiff could act to “elect to reject” such coverage. Such interpretation of the words “reject” and “elect” is further supported by both the legislative history of the Insurance Code and the courts’ interpretation of both such history and the legislative intents behind the uninsured and underinsured provisions of the Insurance Code.

During the legislative debates prior to the passage of Public Act 81 — 1426 (Ill. Rev. Stat. 1981, ch. 73, par. 755a — 2), which was the predecessor of the statute before us and which added the comprehensive uninsured and underinsured provisions in language almost identical to that now before us, Senator Berman commented that “ ‘what we’re saying is that it is going to be up to the insured upon being advised as to what is available to him to decide what he wants to buy and what he wants to pay for *** and I’m sure that the department [of Insurance] will require them to in the policy forms, to spell out what they are offering, what is being paid for and what the coverage is. Without this kind of clarifying language, you’re going to find some companies charging more for coverage that the insured doesn’t want *** or on the other hand, not offering what the insured is willing to pay for.’ ” (Emphasis added.) (81st Ill. Gen. Assem., Senate Proceedings, June 27, 1980, at 73, quoted in Tucker v. Country Mutual Insurance Co. (1984), 125 Ill. App. 3d 329, 334.) Thus, Tucker required an informed decision by the insured after an explanation of coverage is provided by the insurer, an interpretation adopted by our supreme court in Cloninger (109 Ill. 2d at 424-25).

Finally, consistent with Cloninger, the amendment of section 143a — 2, effective January 1, 1990, and February 5, 1990, clarified the legislature’s intent that an' insurer is to provide an insured with the information necessary to make an informed decision whether to purchase or to reject additional uninsured motorist coverage. An amendment to a statute is presumed to have been made for some purpose, and an amendment of an unambiguous statute is presumed to change the original statute. (O’Connor v. A & P Enterprises (1980), 81 Ill. 2d 260, 271.) However, if the circumstances surrounding the change indicate that the legislature intended to interpret the original act, the presumption of change is rebutted (O’Connor, 81 Ill. 2d at 271), and a subsequent amendment is an appropriate source of discerning legislative intent. (O’Connor, 81 Ill. 2d at 271-72; People v. Scott (1974), 57 Ill. 2d 353, 358-59.) The language of an amended statute must be considered both in light of the need that created the amendment and the purpose it serves. (People v. Richardson (1984), 104 Ill. 2d 8, 16.) Thus, a detailed consideration not only of the statute applicable in 1989, but its amendment since that time, is necessary. The uninsured motorist coverage requirements of the Insurance Code that became effective in 1990, with deletions and additions to the same provision as applicable to GEICO’s policy of insurance with plaintiff noted, provides:

“§143a — 2. (1) Required offer ef Additional uninsured motor vehicle coverage. No policy insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance or use of a motor vehicle shall be renewed or delivered or issued for delivery in this State with respect to any motor vehicle designed for use on public highways and required to be [emphasis- added] registered er principally garaged in this State unless uninsured motorist coverage as required in Section 143a of this Code is included offered in an amount equal up to the insured’s bodily injury liability limits unless specifically rejected by the insured. Each insurance company providing the coverage must provide applicants with a brief description of the coverage and advise them of their right to reject the coverage in excess of the limits set forth in Section 7 — 203 of The Illinois Vehicle Code. The provisions of this amendatory Act of 1990 apply to policies of insurance applied for after June 30,1991.
(2) Right of election er rejection of additional uninsured motorist coverage. After June 30, 1991, every application for motor vehicle coverage must contain a space for indicating the rejection of additional uninsured motorist coverage. No rejection of that coverage may be effective unless the applicant signs or initials the indication of rejection. The applicant named insured may elect te purchase limits ef uninsured motorist coverage in an amount up te the bodily injury liability- limits en the insured motor vehicle er reject the offer ef additional uninsured motorist coverage in excess of provided that the uninsured motorist coverage maintained en sueh vehicle is net less than the limits as set forth in Section 7 — 203 of the Illinois Vehicle Code. In those cases, including policies first issued before July 1, 1991, where the insured has elected to purchase limits of uninsured motorist coverage which are less than bodily injury liability limits or to reject rejects limits in excess of those that required by law, the insurer need not provide offer in any renewal, reinstatement, reissuance, substitute, amended, replacement [emphasis added] or supplementary policy, coverage in excess of that elected by the insured in connection with a policy previously issued to such insured by the same insurer unless the insured subsequently makes a written request for such coverage.” Pub. Act 86 — 1155, eff. July 1, 1991.

Thus, an insurer must now provide its insureds with “a brief description of the coverage and advise them of their right to reject the coverage” (Ill. Rev. Stat., 1990 Supp., ch. 73, par. 755a — 2(1)). The amendment further provides that an application must contain a place for the insured to indicate rejection of uninsured motorist coverage in excess of that required by statute (Ill. Rev. Stat., 1990 Supp., ch. 73, par. 755a — 2(2)), which further clarifies that the legislature intended some express conduct by an insured as an indication of his election to reject additional uninsured motorist coverage. Absent such express rejection, an insured is automatically provided uninsured motorist coverage in an amount equal to his bodily injury liability coverage (Ill. Rev. Stat., 1990 Supp., ch. 73, par. 755a — 2(1)). Prior to the amendment, such result was judicially achieved through statutory interpretation requiring an informed decision and reformation of the contract of insurance in the absence of such informed decision by the insured to reject such additional uninsured motorist coverage. See, e.g., Rutter, 190 Ill. App. 3d at 478.

Section 143a — 2(2) as applicable in 1989 to this policy of insurance provided that “where the insured has elected to purchase *** or rejects” additional insurance coverage, an insurer need not offer such insurance in a “renewal or supplementary policy” unless requested in writing by the insured. (Ill. Rev. Stat. 1987, ch. 73, par. 755a — 2(2).) However, that language was amended to “where the insured has elected to purchase *** or to reject” such coverage, an insurer need not provide such coverage “in any renewal, reinstatement, reissuance, substitute, amended, replacement or supplementary policy” unless requested in writing by the insured (Ill. Rev. Stat., 1990 Supp., ch. 73, par. 755a — 2(2)). Thus, by placing the infinitive “to” before the verb “reject” in the amendment, the legislature further clarified its intent to express action or conduct.

An insured’s active election or choice between two known and understood alternatives of uninsured motorist coverage at only the statutory minimum or at a higher level up to the level of his bodily injury liability limits is necessary before an insurer may renew a policy of insurance without an offer of uninsured motorist. Such choice only occurs if an insured has the information necessary to make an informed decision, and only the insurer can provide the insured with the necessary information. (See Cloninger, 109 Ill. 2d at 424-25 (offer of underinsurance requires information necessary so that insured may make informed decision).) An insured’s mere implicit rejection of additional insurance by the purchase of the legally mandated minimum coverage limits is not an informed choice and is insufficient to allow an insurer to provide uninsured motorist coverage in an amount less than bodily injury liability limits.

The amendment further clarified that any subsequent policy is subject to an insured’s prior express election of uninsured motorist coverage. Therefore, although GEICO correctly asserts that section 143a — 2(2) applies to -any subsequent policy of insurance issued by an insurer to an insured, GEICO fails to consider the effect of section 143a — 2(1), which requires as a prerequisite to application of section 143a — 2(2) that an insured make an informed decision to elect to reject additional uninsured motorist coverage. Thus, because GEICO failed to provide plaintiff with the information necessary or the opportunity to make such informed choice, GEICO cannot avail itself of section 143a — 2(2).

The judgment of the trial court striking GEICO’s affirmative defense and granting summary judgment for plaintiff is affirmed.

Affirmed.

DUNN and McLAREN, JJ., concur.