author: JUSTICE McNULTY

text:
      In re MARRIAGE OF ERNA TOTH, Petitioner-Appellee, and TAMAS TOTH, Respondent-Appellant.
    First District (5th Division)
    No. 1—90—0324
    Opinion filed December 20, 1991.
    Rehearing denied January 31, 1992.

      Diane M. Bruzas, of Chicago, for appellant.
    llene E. Shapiro, and Carroll A. Barry, of Feinberg & Barry, EC., both of Chicago, for appellee.
   JUSTICE McNULTY

delivered the opinion of the court:

On December 28, 1989, the trial court entered a judgment for dissolution of marriage of Erna Toth and Tamas Toth. Tamas appeals that portion of the judgment that relates to the award of maintenance and the distribution of property. The issues presented on appeal are whether the trial court properly (1) determined that Erna did not dissipate marital assets; (2) awarded maintenance to Erna; and (3) awarded Erna exclusive possession of the marital residence.

Erna and Tamas were married on May 21, 1966. No children were born to or adopted by them. At the time of trial Erna was 61 years of age. She had been employed by the Chicago Northwestern Transportation Company for 42 years. Erna injured her back in 1987, while exiting a train, but the accident did not affect her job performance and she never requested light duty because of her injury. At the time of trial, the lawsuit she filed against the Northeastern Illinois Regional Commuter Corporation as a result of her back injury was still pending. In 1988, Erna earned a gross income of $29,182 and her gross earnings for the first five months of 1989 were $13,381.53. Erna's amended affidavit of expenses reflected monthly expenses of approximately $2,200. Erna testified that she is eligible for retirement from her job with the Chicago Northwestern Transportation Company when she reaches age 62 and plans to retire at that time. She expects to receive around $l,200-per-month income from her pension when she retires. She has no plans for employment after retirement. Erna suffers from osteoporosis and arthritis in her knees but does not take any prescribed medication from any physician for either ailment.

Tamas, at the time of trial, was 49 years of age and had been employed by Delta Airlines as an auto mechanic and auto body repairman since January 3, 1966. Tamas considers his health fairly good for his age, but suffers from a medical condition known as an-kylosis spondylitis which has caused a deformity of his spine that has limited his spine and neck mobility. Tamas is under the care of a physician and has been taking a prescribed medication known as Indocin since 1979 for his condition. Tamas testified that as a result of his medical condition, he performs light duty work when such work is available. Tamas earned approximately $40,190 gross income in the year 1988 and received the same salary in 1989.

The parties lived together at the marital residence from the date of their marriage in May 1966, until January 1986, when Ta-mas vacated the premises. Erna testified that from January 1983 to January 1985, Tamas was not living at the marital residence on a full-time basis and only spent the night on occasion. A stipulation admitted at trial shows that the parties’ marital assets included the marital residence valued at $92,000 to $108,000, Delta Airlines savings plan valued at $23,147, Delta Airlines stock valued at $24,525, Chicago Northwestern stock valued at $14,475, an IRA account valued at $10,849, Delta Airlines credit pension plan valued at $22,788, Chicago & Northwestern pension plan valued at $59,177, Paine-Weber accounts/Dome Mining stock valued at $925, United States Savings Bonds valued at $9,878 and Chicago Northwestern credit union account valued at $11,415.

Erna admitted at trial that she liquidated the following assets. In December 1983, Erna withdrew $11,415 from her credit union account. Erna received $925 from the Paine-Weber account she liquidated in July 1983 and $9,130 in 1984 from the IRA account. Also in 1984, Erna received $9,878 from the liquidation of United States Savings Bonds. She received $10,000 from the liquidation of ten $1,000 certificates of deposit at Columbia National Bank. She also withdrew the sum of $5,005 from her savings account at Columbia National Bank.

On December 28, 1989, the trial court entered a judgment for dissolution of marriage between the parties, which included the following findings:

1. That marital and nonmarital assets were under Erna’s control and the monies spent by Erna were not distinguishable as marital and nonmarital property.

2. That the funds spent by Erna were not dissipation of assets by Erna.

3. That “[Erna] spent $17,049 and an additional $5,000 paid to the Internal Revenue Service from 1983 to the present to supplement [sic] her income.”

4. That there was no nonmarital property now in existence, other than a portion of Erna’s pension.

The trial court stated that “there is no finding that the Court approves the accounting essence and spending practice of [Erna].” The court made a further finding that the value of the marital residence was $105,000 and that the value of respondent’s tools was $2,000. The court awarded Erna the nonmarital portion of her Chicago & Northwestern pension valued at $51,459. The court awarded $141,774 in marital property to Erna and $124,960 to Tamas.

In addition, the court awarded Ema the sum of $350 per month as periodic maintenance to be reviewed in four years or sooner if either of the parties has a substantial change in circumstances. In addition, the court awarded Erna exclusive possession of the marital residence for four years after the entry of the judgment for dissolution. The court reserved jurisdiction as to the division of the proceeds as to Erna’s pending personal injury action against the Northeastern Illinois Regional Commuter Corporation.

Before addressing the merits of Tamas’ appeal, we must first consider Erna’s contention that we have no jurisdiction to hear this appeal. It is Erna’s contention that because the trial court reserved jurisdiction over the disposition of any recovery which Erna may receive from her pending personal injury suit, the judgment for dissolution of marriage was not a final and appealable order and Tamas’ appeal must therefore be dismissed. In support of her contention, Erna relies on In re Marriage of Leopando (1983), 96 Ill. 2d 114, 449 N.E.2d 137, in which the trial court entered an order dissolving the parties’ marriage and adjudicating the issue of permanent custody, but reserved for future consideration the issues of maintenance, property division and attorney fees. The supreme court in Leopando held that the order was not final and appealable since it failed to adjudicate all of the issues ancillary to the parties’ divorce. (Leopando, 96 Ill. 2d at 120, 449 N.E.2d at 140.) It is thus well settled that in a dissolution of marriage case, issues concerning property disposition or division are not separate claims, but instead, they are related, ancillary parts of a single petition for dissolution.

In applying the decision in Leopando, courts consider whether the public policy against fragmented litigation would be significantly undercut by granting finality to the judgment. In In re Marriage of Lord (1984), 125 Ill. App. 3d 1, 465 N.E.2d 151, the trial court entered an order of dissolution of marriage and reserved jurisdiction for two years on the issue of whether to award maintenance to the wife who had symptoms of Raynaud’s disease that might develop into a disabling disease. In determining that the order was final and appealable, the court stated that the public policy against piecemeal litigation would not be significantly impacted by granting finality to the judgment since the reservation of maintenance was due to legitimate concern for the wife which could not be handled in any other manner and that it was unfair to delay husband’s right to appeal until expiration of the reserved time. Of additional importance to the court in Lord was the fact that only one issue was reserved, where in Leopando only one issue was resolved. Lord, 125 Ill. App. 3d at 4, 456 N.E.2d at 153.

We likewise find that the judgment for dissolution in the instant case was final and appealable despite the court’s reservation of jurisdiction over the issue of Ema’s pending personal injury suit. In fact, to delay Tamas’ right to appeal until the resolution of Erna’s personal injury suit would be even more unfair here than in Lord. While in Lord the court reserved jurisdiction for two years, the court here reserved jurisdiction until some uncertain time — the resolution of Erna’s personal injury action. In addition, while Erna is required by the judgment of dissolution to inform Tamas if she receives a settlement or award from her lawsuit, she is not required to inform Tamas if she recovers no money from her lawsuit. Tamas would thus not only be forced to forego his right to appeal for some indefinite time, but if Erna does not succeed in her lawsuit, Tamas would not even become aware of his right to then appeal from the judgment for dissolution. Accordingly, since the trial court resolved all issues that could have been decided at the time of judgment, and reserved jurisdiction over only the one issue which could not have been resolved at that time, there is no public policy violation in finding the judgment final and appealable. We therefore address the issues raised by Tamas on appeal.

Tamas’ first argument on appeal is that the trial court erred in determining that Erna had not dissipated marital assets. Dissipation occurs when one spouse uses marital property for his or her own benefit and for a purpose unrelated to the marriage at a time when the marriage is undergoing an irreconcilable breakdown. (In re Marriage of Partyka (1987), 158 Ill. App. 3d 545, 511 N.E.2d 676.) Once it is established that a party has liquidated marital assets, the party charged with the dissipation must establish by clear and convincing evidence how the funds were spent. (Partyka, 158 Ill. App. 3d at 549-50, 511 N.E.2d 676, 680.) General and vague statements that they were spent on marital expenses or bills are inadequate to avoid a finding of dissipation. (Partyka, 158 Ill. App. 3d at 550, 511 N.E.2d at 680.) Where a party has dissipated marital assets, the court may charge the amount dissipated against his or her share of the marital property so as to compensate the other party. In re Marriage of Block (1982), 110 Ill. App. 3d 864, 441 N.E.2d 1283.

Upon review, the trial court’s division of property will be disturbed only upon a showing of abuse of discretion. (In re Marriage of Rothbardt (1981), 99 Ill. App. 3d 561, 425 N.E.2d 1146.) The determination of an abuse, of discretion does not turn upon whether the reviewing court agrees with the trial court’s distribution of assets, but whether the trial court acted arbitrarily without employment of conscientious judgment. In re Marriage of Legge (1982), 111 Ill. App. 3d 198, 443 N.E.2d 1089.

Tamas maintains that Erna dissipated $46,353 of marital assets. The funds claimed to have been dissipated by Erna were: (1) her credit union account which she closed in December of 1983 from which she received $11,415; (2) various savings bonds cashed in from which she obtained proceeds of $9,878 on August 9, 1984; (3) Dome Mining stock held in a Paine-Weber brokerage account which she liquidated and received proceeds of approximately $925; (4) her IRA accounts which she liquidated in 1984 from which she received $9,130; (5) ten $1,000 certificates of deposit cashed in by Erna in 1984; and (6) $5,005 Erna withdrew from Columbia National Bank on July 31, 1982.

It is undisputed that in November 1983, the parties had an altercation in the course of which Tamas became physically violent towards Erna and struck her in her face. Erna testified that Tamas had threatened to kill her and, for the purpose of self-protection, she immediately left the marital home. It was at this time that Erna liquidated the assets, she contends, so as to provide her with cash in case of an emergency.

Erna testified that she intermingled the funds from the various sources and utilized them to pay various living expenses on an “as needed basis.” She testified that when she fled her home, she left with only the clothes on her back. Erna therefore claims that she used some of the liquidated assets to purchase a new winter wardrobe. However, she did not have any receipts for her purchases. In addition Erna testified that she paid approximately $1,200 to her brother for rent and food. She was also unable to provide any documentation or receipt as to this transaction. She did produce documentation as to the expenditure of $2,000 to pay a dental bill and $600 for the purchase of a thermopane window. She also testified as to having her garage roof replaced although the record is devoid of any evidence regarding the cost. Erna also testified to using the liquidated assets to pay her divorce attorney $12,000 and she expended $5,000 of the proceeds to pay the additional income tax she incurred from liquidating her IRA accounts before reaching retirement age. Erna maintained that she spent the rest of the money on living expenses although she was unable to provide any documentation or records as to specifically how the funds were used.

It is clear that Erna did not dissipate the $5,005 that she withdrew from her savings account at the Columbia National Bank since this was undisputably nonmarital property and any expenditure of nonmarital property, by definition, cannot constitute dissipation of marital property. Of the remaining $41,348 Tamas alleges that Erna dissipated, she is only able to account for $21,000 of expenditures and $12,000 of this amount was spent on her legal fees. Expenditures for attorney fees out of marital assets is a dissipation of marital assets, and even Erna admits that the fees paid to her divorce attorney were an expenditure for a purpose unrelated to marriage. (In re Marriage of Head (1988), 168 Ill. App. 3d 697, 523 N.E.2d 17.) Furthermore, as previously noted, vague and unsupported statements are inadequate to avoid a dissipation finding. In In re Marriage of Los (1985), 136 Ill. App. 3d 26, 482 N.E.2d 1022, the husband testified that he used the funds for “his cost of living and his bills.” The court held that the failure to explain specifically how this money was spent required a finding of dissipation. (See also In re Marriage of Partyka (1987), 158 Ill. App. 3d 545, 511 N.E.2d 676 (husband’s testimony that he spent marital funds “to live on and to pay bills” was inadequate to avoid a finding of dissipation); In re Marriage of Smith (1984), 128 Ill. App. 3d 1017, 471 N.E.2d 1008 (husband’s testimony that he used funds “to pay bills” but could not recall which bills he had paid and which he had not, warranted a finding that husband had improperly spent the funds).) Here, however, although Erna has not provided documentation as to all of her expenditures, it is clear that during her separation from Tamas, she did not seek temporary maintenance from him because she was able to pay her bills from cash received from the liquidated assets.

Furthermore, any dissipation of assets in the instant case does not require this case to be reversed since the evidence also shows that Tamas dissipated marital assets. The record reflects that from January 1983 to January 1985, Tamas was not living at the marital residence. Tamas admitted that during his absence from the marital residence, he spent marital assets on his girl friend. Tamas did in fact admit that during the two-year period, he and his girl friend dined out and purchased food jointly. Tamas also admitted to paying for a hotel room when he and his girl friend went to Florida for a weekend. Furthermore, Tamas admitted to lending his girl friend $500. The record is unclear as to whether his girl friend ever paid him back. Although the record reveals that in 1984, Tamas made four monthly rental payments on an apartment of $125 each, Tamas incredibly claims that these payments were not for himself or for his girl friend, but were for his friend, “Mike.”

Accordingly, since there is evidence of dissipation of marital assets by both parties, we find no error in the trial court’s distribution of marital assets.

The next issue raised on appeal by Tamas is that the trial court erred when it awarded to Erna maintenance of $350 per month. An award of maintenance rests within the sound discretion of the trial court, and the court’s decision will not be disturbed on review unless it amounts to an abuse of discretion or is against the manifest weight of the evidence. (In re Marriage of Heller (1987), 153 Ill. App. 3d 224, 505 N.E.2d 1294.) Section 504(a) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1989, ch. 40, par. 504(a)) provides that a court is to award maintenance only if it finds that the party seeking maintenance lacks sufficient property, including marital property, to provide for her reasonable needs, is unable to support herself through appropriate employment, or is otherwise without sufficient income. In determining the amount and duration of an award of maintenance, the court should consider such factors as the standard of living established in the marriage, the duration of the marriage, the age and the physical condition of both parties, and the ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance. Ill. Rev. Stat. 1989, ch. 40, par. 504(b).

The record in the instant case reveals that the trial court did not abuse its discretion in awarding Erna maintenance of $350 per month. The record reveals that Erna was 61 years of age at the time of trial and was earning $29,182.63 a year. In addition, Erna was a year away from retirement and suffers from chronic health problems. For these reasons, it is clear that Erna has dismal prospects to increase her income or acquire capital assets in the future. Tamas, on the other hand, was age 49 at the time of trial and, being 12 years younger than Erna, has more income-producing years ahead of him. In addition, Tamas earns $40,000 per year, over $10,000 per year more than Erna. Based on these facts, the maintenance award to Erna of $350 per month reviewable in four years should be affirmed as a proper exercise of discretion. In reviewing the maintenance award in four years, the court will have the opportunity to determine how Erna’s retirement as well as her personal injury lawsuit affect Erna’s need for maintenance.

Lastly, Tamas maintains that the trial court erred when it awarded to Ema exclusive possession of the marital residence. Ta-mas contends that although section 503(d)(4) recognizes the “desirability of awarding the family home, or the right to live therein for reasonable periods, to the spouse having custody of the children,” the Act provides no specific authority to award exclusive possession to a spouse, as in this case, where there are no minor children. Ill. Rev. Stat. 1985, ch. 40, par. 503(d)(4).

Tamas’ contention is without merit. Courts have found that a spouse may be awarded exclusive possession of the marital residence even when there are no minor children. The reasonableness of such awards is determined by considering the totality of the economic circumstances of the parties. (In re Marriage of McNeeley (1983), 117 Ill. App. 3d 320, 453 N.E.2d 748 (award of exclusive possession of the home to wife was reasonable where wife had been unemployed for 32 years and suffered from arthritis, and husband was employed and in good health); In re Marriage of Lukas (1980), 83 Ill. App. 3d 606, 404 N.E.2d 545 (award of exclusive possession to wife was reasonable where wife was unemployed and in poor health and husband was in good health and employed).) Considering the totality of the circumstances in the instant case, the trial court did not act unreasonably in awarding Erna exclusive possession of the marital residence for a period of four years. Erna’s opportunity to increase her income was limited in light of the fact that at the time of trial she was 61 years old and planned to retire in one year. She suffered from chronic medical problems including arthritis and osteoporosis. While Tamas also testified to having health problems, these problems have not substantially affected his employment. Accordingly, the trial court’s decision awarding Erna exclusive possession of the marital residence for a period of four years was a proper exercise of discretion.

Affirmed.

LORENZ, P.J., and MURRAY, J., concur.


source: Caselaw Access Project

author: JUSTICE EGAN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT TENNY, Defendant-Appellant.
    First District (6th Division)
    No. 1—89—2210
    Opinion filed December 20, 1991.

      Frederic R. Kein, Clark M. Stalker, and Joseph J. Krasovec III, all of Schiff, Hardin & Waite, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, James E. Fitzgerald, and Jeanette Sublett, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE EGAN

delivered the opinion of the court:

The defendant, Robert Tenny, was convicted by a jury of the murders of Ezekiel Rhoten and Sabrina Sommerville, but the jury found that the evidence was insufficient to support the imposition of the death penalty. The judge sentenced the defendant to natural life imprisonment without parole. The defendant contends that he was not proved guilty beyond a reasonable doubt. Alternatively, he asks that a new trial be granted because of improper conduct on the part of the State’s Attorney; the failure of the State to comply with discovery rules; improper restriction of cross-examination of the State’s witnesses; and the improper admission of evidence. He also contends that, if his conviction is affirmed, his sentence should be reduced.

On November 18, 1978, the bodies of Ezekiel Rhoten and Sabrina Sommerville were found in Rhoten’s home at 12135 South Normal Street in Chicago. Fingerprints were taken at the scene by the Chicago Police Crime Detection Laboratory. In April 1987, fingerprints lifted from a glass jar found in Rhoten’s house during the original investigation were analyzed using a new computer technology known as the Automated Fingerprint Identification System. One of the fingerprints matched those of Ella Haymon. Later comparisons established that four of her fingerprints had been found inside the house. The fingerprints of Dolores Lamb were also identified. After Haymon was arrested, she told the police that she had participated in the robbery and killing of Rhoten along with Lamb, Theaster Hunter, Johnny Armstrong and the defendant. Lamb, Hunter and the defendant were taken into custody. The police learned that Armstrong had died. The defendant was indicted with Lamb and Haymon; Hunter was indicted separately. Lamb and Haymon testified against the defendant while the charges of murder were still pending against them. No fingerprints of the defendant, Armstrong or Hunter were discovered in Rhoten’s house.

The judge denied the defendant’s pretrial motion to suppress his court-reported statement. The State, however, did not introduce that statement into evidence. Consequently, the State’s entire evidence implicating the defendant is the testimony of two accomplices, corroborated only by each other, more than eight years after the killing. We make this observation at the outset to answer the State’s argument that any error assigned here would be harmless since, the State maintains, the evidence is overwhelming. In our judgment, the testimony of two accomplices under all the circumstances present in this case is not overwhelming. We will first address the defendant’s contention that he was not proved guilty beyond a reasonable doubt.

Dolores Lamb testified that on November 18, 1978, she and Ella Haymon arrived at a Chicago pool hall located at 57th and Ashland; their acquaintance, Theaster Hunter, arrived later. Lamb had dated Hunter’s brother for two years and lived in Hunter’s house during that time. Hunter approached Lamb and asked to speak with her privately. Meanwhile, Haymon talked to the defendant and Johnny Armstrong while sitting in the defendant’s car outside the pool hall. After Lamb and Hunter finished their conversation, they went to the defendant’s car. Apparently, while Lamb and Hunter were away from the others, Hunter had shown Lamb a gun. Once in the car, Haymon asked the defendant if he would drive her to Ezekiel Rhoten’s house. The defendant agreed, and he, Hunter, Lamb, Haymon and Armstrong drove to Rhoten’s home at 12135 South Normal. On the way, Hunter asked Haymon whether Rhoten had any money because he wanted to steal it. The defendant said that he “wanted to stick [Rho-ten] up.”

When they arrived at Rhoten’s house, Hunter instructed Lamb and Haymon to go into the house and to leave the door unlocked behind them so that the others could come in quickly and surprise Rho-ten. Lamb and Haymon left the car and went to the house next door. They knocked on the door and were told by a man, Joseph Henderson, that they had the wrong house. Lamb and Haymon then went back to the car, and Lamb told Hunter that Haymon had reservations about going into Rhoten’s house. Hunter became angry and told Hay-mon she had better do as she was told. Haymon and Lamb then walked up to Rhoten’s house and rang the doorbell. Rhoten appeared in an upstairs window, saw Haymon and came downstairs to let her and Lamb in. Shortly after they were in the house, Sabrina Sommer-ville, a guest in the house, joined the others downstairs in the living room. Lamb testified that she and Haymon took a seat on the couch. Haymon and Rhoten were having a conversation when Hunter burst into the house, followed by Armstrong and the defendant. Both Hunter and Armstrong were carrying guns. Hunter yelled that it was a stickup; he was going to rob Rhoten. Rhoten laughed and told Hunter to get out of his house. Hunter began beating Rhoten’s head with his pistol. Rhoten then bent down and reached under a chair for a gun. After a struggle, Hunter took Rhoten’s gun and gave it to the defendant, who pointed the gun at Rhoten. After Hunter struck Rho-ten with his pistol, he struck Sabrina Sommerville over the head with “a vase or a statue or something,” knocking her unconscious. Som-merville fell backwards onto the couch.

Hunter then pushed Rhoten and ordered him upstairs. Everyone except the defendant followed Hunter and Rhoten upstairs. Rhoten attempted to run while he was going up the stairs, but Lamb caught him, and then Hunter grabbed him. They forced Rhoten into his bedroom. Lamb and Haymon tied Rhoten with a rope and beat him with a belt. Hunter ordered Rhoten to give him his money or he would die. Rhoten kept telling Hunter he did not have any money. Hunter then began to stab Rhoten repeatedly. Finally, Hunter raised a pillow to Rhoten’s face, pulled out his gun and fired a single shot into Rhoten’s head.

Upon Hunter’s orders, Armstrong, Haymon and Lamb searched through the house looking for valuables. Downstairs, Lamb saw the defendant coming out of the kitchen and Sommerville lying unconscious on the couch. Hunter again hit Sommerville on the head, this time with his pistol. Lamb never saw the defendant strike Sommer-ville. They returned to the car with a stereo and some of Rhoten’s clothes, a television and other personal belongings. They loaded the items into the defendant’s car and went to Hunter’s house. Upon arriving at Hunter’s house, he, Armstrong and the defendant unloaded the items and put them in the basement. Haymon left Hunter’s home first after four or five hours; then the defendant and the others left, while Lamb stayed overnight.

Ella Haymon testified that she offered to pay the defendant to give her a ride to Rhoten’s house, and he agreed. She had dated Rho-ten for four years and had moved out of his house only three days before. Haymon had the understanding that only she, the defendant and Lamb would go to Rhoten’s house. However, the defendant, Haymon and Lamb were joined by Armstrong and Hunter. During the ride, in response to a question by Hunter, she told him that Rhoten worked. She could not hear anything else due to loud music playing on the car radio.

When they arrived at the house Lamb told Haymon that Hunter had a pistol and that he wanted them to get into Rhoten’s house and leave the door unlocked. Haymon led Lamb to Rhoten’s next-door neighbor’s house, knowing it was the wrong house. Hunter did not know that it was the wrong house because he had never been there before. She told Joseph Henderson that she and Lamb were in trouble and asked him to help. Henderson said he did not want to get involved, and Lamb and Haymon returned to the car. Lamb told Hunter that Haymon did not want to go through with the plan. Hunter threatened Haymon that if she did not help, he would kill her. Hay-mon and Lamb rang the doorbell, and Rhoten answered.

Haymon testified that she asked Rhoten for money. Hunter, Armstrong and the defendant came through the front door; Hunter and Armstrong had guns drawn, and Hunter told Rhoten it was a stickup. Hunter struck Rhoten in the head with his pistol. Rhoten fell to the floor and reached under his couch for a gun. Hunter wrested the gun from Rhoten and gave it to the defendant. The defendant pointed the gun at Rhoten. When Sommerville jumped from the couch, she was struck with a lamp by Armstrong. (Lamb had testified that Hunter, not Armstrong, first struck Sommerville with “a vase or statue or something.”)

When Haymon was upstairs Hunter ordered her and the others to search Rhoten’s room for valuables. Lamb and Haymon went through dresser drawers and a closet. Hunter told Armstrong to watch Rho-ten, and Hunter and Lamb went downstairs. Armstrong then told Haymon to keep an eye on Rhoten while Armstrong “rumbled” through the closet. She beat Rhoten with a belt at the direction of Hunter. Haymon testified that she mouthed the word, “Rim,” to Rho-ten, and Rhoten jumped up and ran down the stairs, but Lamb caught him. Rhoten was then taken back upstairs where he was beaten, stabbed and shot. After Rhoten was killed, Haymon took her clothes and television, and the four went downstairs to join the defendant. Hunter then hit Sommerville two more times over the head with a hammer while she remained motionless on the couch. The defendant took Rhoten’s gun out of the house.

Haymon testified that on their way to Hunter’s house, Hunter threw the knife and hammer he had used out the window. She and Lamb left Hunter’s house about one half hour after arriving.

Doris Rhoten-Bames, Rhoten’s estranged wife, testified that Rho-ten usually kept a gun in the night stand in his bedroom. After receiving news that Rhoten had been killed, she went to his home. She found certain items to be missing including suits, a television, a .25 caliber handgun, all of Rhoten’s knives, some old coins and a diamond ring.

Joseph Henderson testified that he remembered answering his door around one o’clock in the morning of November 19, 1978, to two women he had never seen before. He did not remember anything else; he did not even know whether the two women went to Rhoten’s house after leaving.

Dr. Robert J. Stein, the Cook County medical examiner, testified that Rhoten died of a gunshot wound to the jaw, and that Sommer-ville’s death was due to a severe cranio-cerebral injury which included multiple skull fractures caused by six blows with a blunt instrument. Portions of her brain were sticking out of the fractures.

Detective Joan Ryan testified that Rhoten’s body was lying on a box spring mattress in the upstairs bedroom. The bedroom, as well as the rest of the house, appeared to have been ransacked. Rhoten had been stabbed in the neck, chest and back, and his hands and feet were bound with a rope. His body was covered with a blanket that had holes in it corresponding with his stab wounds. Sommerville’s body was lying on a “love seat” which was stained and spattered with blood. The side of her head “was bashed in.” Fragments of plaster were found in her robe. A plaster piece of statuary was recovered from the room where her body was lying.

While we have said the evidence was not overwhelming, we judge that the evidence was sufficient to establish guilt beyond a reasonable doubt. The testimony of the two accomplices was corroborated to some degree by the testimony of Henderson that two women came to his door on the morning of the killing and by the recovery of their fingerprints from the scene. That corroboration obviously does not extend to their implication of the defendant, but, on the other hand, no suggestion had been made of a motive that would cause them to implicate the defendant falsely. Their testimony may have differed in small details, but, considering the lapse of almost 11 years between the occurrence and their testimony, the differences in their recollection of events are understandable.

The jury was apprised of all the infirmities in their testimony. Haymon was a daily drug user at the time of the killings up until the time she was arrested. She engaged in prostitution to support her drug habit. She was impeached by showing that she admittedly lied when she first told the police she knew nothing about the killings. Lamb also was a drug user and engaged in prostitution. She admitted that she told some lies to the police when they first questioned her, but she did not know what lies she had told them. She had previously been convicted of a felony, aggravated battery.

The defendant’s principal argument was that he was merely present and, therefore, could not be held accountable for the actions of Hunter, Armstrong, Lamb or Haymon. The evidence most damaging to his defense was the testimony of Lamb and Haymon that he held a gun on Rhoten. The jury was informed that neither Lamb nor Haymon had ever told the police or the grand jury about the defendant’s possession or use of Rhoten’s gun. They first told the State’s Attorney shortly before the trial. The jury was also instructed that the testimony of Lamb and Haymon should be regarded with suspicion.

Thus, the jury was fully cognizant of the weaknesses in the testimony of Haymon and Lamb and was properly instructed. Nevertheless, the jury chose to believe their testimony, which was not inherently improbable. After reviewing the record, we cannot substitute our judgment for that of the jury. (See People v. Byron (1987), 116 Ill. 2d 81, 506 N.E.2d 1247.) For these reasons, we reject the defendant’s claim that he was not proved guilty beyond a reasonable doubt.

The defendant next maintains that reversible error occurred when the judge refused to grant a mistrial after the State rested without introducing the defendant’s court reported statement and again during the State’s final argument. An understanding of this argument requires a consideration of the State’s opening statement as well as the fact that the State vigorously resisted the defendant’s motion to suppress his statement.

In the opening statement the prosecutor told the jury that both Haymon and Lamb had implicated the defendant, Hunter and Armstrong and would testify and plead guilty later. He also said the following:

“Having talked to [Haymon and Lamb] *** Chicago police investigators from Area 2 Violent Crimes located Robert Tenny, interviewed him at the police station and Robert Tenny admitted his part, or at least part of his part, his role in the robberies, home invasion and murder of Ezekiel Rhoten and Sabrina Sommerville.”

We pause to express our view that a lay fact finder, unaware of the fine distinction between an admission and a confession, could well infer from that statement by the prosecutor that the defendant had confessed that he had committed a robbery, home invasion and murder.

The defendant’s attorney began his opening statement by telling the jury that the defendant did not hit Sabrina Sommerville, did not tie up or beat or shoot Ezekiel Rhoten; that he did not plan or participate in the planning of their deaths; and that he did not assist anyone else in bringing about the deaths of Rhoten and Sommerville. He said that the defendant had agreed to take Haymon to Rhoten’s home; that he assumed that Haymon and Lamb wanted to go to Rhoten’s home to “turn tricks for prostitution.” He also told the jury that all the time that Lamb, Hunter, Haymon and Armstrong were in the house committing the crimes against Sommerville and Rhoten, the defendant was sitting in the car in front of Rhoten’s house. After becoming concerned why the others were in the house for such a long period of time, he walked into the house and saw Sabrina Sommer-ville on the couch slumped over. When he went upstairs he saw Rho-ten dead in the bed.

The defendant’s attorney also told the jury that the defendant had waived his right to remain silent and cooperated and answered questions asked of him by the police. He pointed out that Ella Haymon and Lamb had changed their stories, but that the defendant’s statement was consistent with the first statement of Ella Haymon. Both the defendant and Haymon had told the police that they had no idea that there was a robbery planned. However, he said, the stories of Lamb and Haymon changed considerably to help themselves by testifying against the defendant. The attorney concluded by saying that the undisputed evidence would be that the defendant did not plan, and did not participate in a plan, to kill Sommerville and Rhoten. The tenor of his opening statement was that the defendant was not guilty of any crime either as an active participant or on the basis of accountability.

After the State rested without introducing the defendant’s statement, the defendant’s attorney moved for a mistrial. The prosecutor’s response in part was as follows:

“However, I have elected and I think properly so, during the course of the trial, not to introduce the portions of that statement because of the much self-serving nature of the statement as used at great length by the defense in their opening statements at this trial. * * *
In opening statements before this Court, we were told that Robert Tenny was the most cooperative man in the world who couldn’t wait to tell the police his story. And that turn of events is what precipitated my choice of not using the defendant’s self-serving statement which I believe legally is a — an admission under accountability theory. But nonetheless, inconsistent with much of the evidence that we have presented. The decision was not made until the cross examination of each of the other witnesses that the People presented was completed. The defense, I don’t believe, has any right to try and force us to introduce evidence or determine the way in which we introduce that evidence. * * *
My statement was made during an opening statement in good faith. And I stand by it at this point. I did not highlight it in any way. And I did nothing improper. Yesterday at the conclusion of additional evidence, we determined not to proceed with further evidence. That is our decision. We stand by it.” (Emphasis added.)

The judge then denied the motion for a mistrial.

Immediately after the judge denied the motion for a mistrial, the State’s Attorney made a motion in limine in which he asked the court to bar any testimony by the defendant concerning the statements he had made to the police. He characterized those statements as inadmissible hearsay. The judge did not rule on the motion, and the defendant did not testify.

During the final argument the prosecutor said this:

“Well, how do you know that Ella Haymon and Dolores Lamb were telling you the truth here. Well, first of all, a lot has been conceded. It’s conceded that Robert Tenny was with Hunter and Armstrong that night. It’s been conceded that he drove out of there with the other four people. It’s been conceded that he entered the—

[DEFENSE ATTORNEY]: Your Honor, I have an objection to this line of argument in this case. It’s the State’s burden to prove every single fact. Defense has no burden—

THE COURT: Overruled. Counsel may argue.

[STATE’S ATTORNEY]: It’s been conceded that he drove them back.”

The State now tells us that its argument that matters were “conceded” was based on the defendant’s attorney’s opening statement.

It is our judgment that the State’s procedures in this case, sanctioned by the judge, constituted prejudicial error which deprived the defendant of a fair trial. We so judge even if the prosecutor acted in good faith. We have no reason to believe that he did not; we accept his statement that the decisions he made were “tactical” decisions.

As we previously noted, a lay fact finder could conclude from the State’s opening statement that the defendant had confessed to the crime. Judging from the prosecutor’s remark later that the defendant’s statement was “an admission under accountability theory,” he was of the opinion that it was a confession. The record does not contain a copy of the statement the defendant made. If it consists of what the defendant’s attorney said in his opening statement, it was not a confession.

It is the general rule that a prosecutor cannot comment during his opening statement upon what evidence will be introduced and fail to introduce that evidence. (People v. Warmack (1980), 83 Ill. 2d 112, 413 N.E.2d 1254.) In view of the State’s failure to establish that the defendant had, in fact, confessed, the defendant at the very least was entitled to show that he had not confessed. We do not depart from the general rule that self-serving statements by an accused are inadmissible hearsay. But we do not think the rule may be invoked under the circumstances of this case. The judge should have ruled on the State’s motion in limine, and he should have denied it. The defendant would have been alerted by a prompt ruling that he could take the stand and testify to what he had told the police. Under the circumstances present here, he could not make a reasoned judgment as to whether he should take the stand because he could not be certain that he would be permitted to testify to the contents of his statement.

To compound the error, the State was then permitted to use the defense attorney’s statement as evidence. The inconsistency in the State’s position is obvious to us. The prosecutor told the judge in his opposition to the motion for a mistrial that the judge would instruct the jury that opening statements are not evidence. On the other hand, the State now tells us, in effect, that the defense attorney’s opening statement was evidence.

The State enjoyed the best of all possible worlds. It could lead the jury to believe erroneously that the defendant had confessed; it could prevent him from showing the jury he had not confessed; it could successfully resist the defendant’s attempt to suppress the statement, which would have been corroboration of the testimony of the accomplices-, and it could treat, as evidence, the defendant’s attorney’s opening statement, which, it is reasonable to assume, was prompted by the expectation that the State would introduce the statement whose admissibility it had urged the judge to permit.

The defendant also contends that error occurred when the prosecutor argued as follows:

“You now know when Ella Haymon and Dolores Lamb were in that pool hall at 57th and Ashland that night, that they met up with three men who entered that establishment together. They entered it together and that indicated and is evidence of the fact that they were working together that night as a sophisticated, experienced team of killers.”

We agree with the defendant’s contention that the use of the term “experienced” was designed to convince the jury that the defendant had participated in other killings with Armstrong and Hunter. Therefore, it was improper. (See People v. Whitlow (1982), 89 Ill. 2d 322, 433 N.E.2d 629.) No objection was made to the prosecutor’s statement, but we deem it to be plain error in this case. See People v. Natoli (1979), 70 Ill. App. 3d 131, 387 N.E.2d 1096; People v. Valdery (1978), 65 Ill. App. 3d 375, 381 N.E.2d 1217.

We also agree with the defendant that the judge erred by unduly restricting the cross-examination of Lamb. It is the general rule that in any case where an accomplice testifies, wide latitude should be given the defendant to determine the motive of the accomplice in testifying. (People v. Baker (1959), 16 Ill. 2d 364, 158 N.E.2d 1.) The State’s Attorney told the jury that Haymon and Lamb would plead guilty to murder. However, both of them testified that they did not intend to plead guilty. The inconsistency between the prosecutor’s opening statement that the accomplices would plead guilty and their testimony that they would not plead guilty presented a subject that the defendant’s attorney should have been permitted to explore. He was not.

On direct examination of Lamb the following occurred:

“Q. Through your lawyer have you reached an agreement with the prosecutor, specifically me?

A. No, I haven’t.

Q. Through your lawyer have you agreed to do something in relation to Robert Tenny and Marcus Hunter?

A. No.”

Lamb testified on cross-examination that she was not going to plead guilty After that the following occurred:

“[DEFENSE ATTORNEY]: Are you guilty of anything that you are charged with?

THE COURT: Wait just a moment.

[STATE’S ATTORNEY]: Objection.

THE COURT: Objection sustained.

[DEFENSE ATTORNEY]: Ms. Lamb, you have an understanding through your lawyer about what will happen to those charges?

[STATE’S ATTORNEY]: Judge, objection. Asked and answered.

[DEFENSE ATTORNEY]: No. I’m asking do you.

THE COURT: No. No. No. Wait. You started out with all this, counsel, so don’t go back to it now. We have covered all that. * * *

THE COURT: Let me tell you. There was no objection, but your question about what — whether the witness here intends to plead guilty or not, the question and answer are stricken.

[DEFENSE ATTORNEY]: If I may, Your Honor. [The State’s Attorney] opened by saying this witness and the other witness would plead guilty to murder.

THE COURT: Well, your question to her is not [the State’s Attorney] on the witness stand. That question and answer is [sic] stricken. Now, what do you want to ask and get to it directly.

[DEFENSE ATTORNEY]: Do you have any understanding — I’m sorry. Do you have any idea, you, not anybody else, of what you hope to gain in relation to your pending murder charges—

[STATE’S ATTORNEY]: Objection.

[DEFENSE ATTORNEY]: (Continuing) — by testifying in this case?

THE COURT: Objection sustained to the form of the question, what she hopes to gain. * * *

[DEFENSE ATTORNEY]: Ms. Lamb, have you spoken to your attorney about whether or not you should testify in this matter?

[STATE’S ATTORNEY]: Objection, Judge.

THE COURT: Sustained. What she has talked to her attorney about is a confidential matter.

[DEFENSE ATTORNEY]: Your Honor, may I have a side bar on this issue because I specifically—

THE COURT: No. You may ask another question. * * *

THE COURT: I told you. Ask direct questions. It’s none of your business what she had talked to her attorney about.

[DEFENSE ATTORNEY]: To the extent that you have spoken with your attorney, Ms. Lamb, do you have a hope in this «ase of what good its going to do you to testify against Robert Tenny?

[STATE’S ATTORNEY]: Objection.

THE COURT: Objection sustained to the form of the question.”

We believe those rulings of the judge constituted error. The question of whether she intended to plead guilty was a proper one. The judge was wrong when he said that what her attorney told her was confidential. If it were the law that information about an agreement with the State given by an attorney to his client may not be disclosed, disclosure of any agreement could always be prevented by the simple device of the prosecutor using a lawyer as the conduit for the information rather than the prosecutor giving the information directly to the witness. The judge was also wrong when he refused to permit Lamb to be asked what she hoped to gain. The expectations of accomplice witnesses are always probative whether they be realistic or fanciful. People v. Triplett (1985), 108 Ill. 2d 463, 485 N.E.2d 9.

After the State rested, the defendant moved for a mistrial based on the variance between the prosecutor’s comment in opening statement that the witnesses would plead guilty and their testimony that they did not intend to plead guilty. The prosecutor responded as follows:

“With regard to the statements in opening statement regarding possible guilty pleas by Dolores Lamb and Ella Haymon, those were made based on conversations I have had with their attorneys. They understand that in exchange for their agreement to testify, if they expect any consideration from the State’s Attorney, it would be in exchange for guilty pleas to the murder of both of these victims. And they will not have these charges ever dropped against them.
They will, sometime in the future, determine whether or not they choose to plead guilty. And that changes, apparently, from day to day as I have learned from listening to their testimony and talking to them. I expect if they see Robert Tenny gets a not guilty verdict, they are not going to plead guilty to anything. But that’s a decision they have made. And I have made that statement in good faith. And there’s nothing improper about what I have said.” (Emphasis added.)

Again, we have no reason to doubt that the State’s Attorney made his comments in opening statement in good faith. It is obvious to us that he was taken by surprise by the testimony of Lamb and Haymon. We find it impossible to believe that the lawyers for Lamb and Haymon did not apprise them of any agreement they made with the State’s Attorney. Consequently, the defendant’s attorney should have been given every opportunity to inquire into what the witnesses were told by their attorneys as to any agreement. Indeed, under the circumstances, not only was the defendant entitled to inquire about any agreement reached by the witnesses and lawyers, it was the duty of the State to inform the jury of the agreement and its terms, whatever they might be. If a prosecutor is aware of facts which would affect the credibility of an accomplice, he has an obligation under the constitution to bring those facts to the attention of the jury. See Na-pue v. Illinois (1959), 360 U.S. 264, 3 L. Ed. 2d 1217, 79 S. Ct. 1173.

We conclude that the cumulative effect of the prejudicial argument, the restriction of the cross-examination of Lamb and the procedures followed concerning the defendant’s statement deprived the defendant of a fair trial.

There are other assignments of error by the defendant which we find to be without merit and which we will discuss briefly. The brief reference to the deceased’s widow in final argument was improper but not prejudicial; the introduction of the defendant’s photograph, which was identified by Haymon, was not error; the prosecutor’s statement that the charges against Haymon and Lamb would not be dropped was invited by the defense attorney’s argument; and the prosecutor’s explanation to the jury of the law of accountability was correct.

Since this cause is being remanded, we need not decide the defendant’s claim that the State violated the discovery rules by belatedly providing him with the information that the witnesses would testify that the defendant had a gun and that the body of Sommerville had been moved while only the defendant was present.

For these reasons, the judgment of the circuit court is reversed and the cause remanded for a new trial.

Reversed and remanded.

McNAMARA and LaPORTA, JJ., concur.


author: JUSTICE McNAMARA

text:
    WESTERN NATIONAL BANK OF CICERO et al., Plaintiffs-Counterdefendants, v. RICHARD C. MOENNING, Defendant-Counterplaintiff (Richard C. Moenning et al., Plaintiffs; La Salle National Bank, Trustee, et al., Defendants).
    First District (6th Division)
    Nos. 1—90—0371, 1—90—2001 cons.
    Opinion filed December 20, 1991.
    Rehearing denied January 28, 1992.

      Richard C. Moenning, of Chicago, pro se, for appellants.
    Hauselman & Rappin, Ltd., of Chicago, and Law Offices of Joseph M. Williams, of St. Charles (Martin F. Hauselman, Rhoda E. Markovitz, and Joseph M. Williams, of counsel), for appellees Western National Bank of Cicero and S. Louis Rathje.
   JUSTICE McNAMARA

delivered the opinion of the court:

This appeal arises from the consolidation of two cases. In the first, plaintiffs, Western National Bank of Cicero and Western National Bank of Cicero, as trustee (collectively Western National), filed a complaint against Richard Moenning alleging default on a promissory note. In the second case, Richard and Margot Moenning (hereinafter “Moenning” or “the Moennings”) filed a complaint against La Salle National Bank, as trustee (La Salle), and S. Louis Rathje for declaratory relief and damages and suit to quiet title. Rathje counterclaimed to recover on a second promissory note, a guarantee and his claim for various expenses paid on Moenning’s behalf.

The relevant facts as adduced from the pleadings, depositions and trial testimony are set forth below.

In September 1974, the Moennings conveyed title to their home to the La Salle National Bank as trustee under trust number 40193. By 1976, Moenning was heavily in debt to the Harris Savings and Trust Bank (the Harris Bank), the indebtedness secured by the residence, insurance and Margot’s stock. In May 1980, Moenning signed a note for a new loan with the Harris Bank for $35,382 at 8% interest which was guaranteed and secured by S. Louis Rathje, Margot’s brother and an attorney. In 1982 and 1983, Moenning, also an attorney, defaulted on between 14 and 17 payments. John Benton, a Harris Bank employee, testified that in 1984 the Harris Bank required that Rathje, as guarantor, pay off Moenning’s entire debt. Rathje repaid the loan in full without notice to Moenning. (Moenning admitted at trial that he owed Rathje $34,108.01 plus interest, and the trial court entered judgment on Rathje’s amended counterclaim for this debt.)

In April 1981, the Internal Revenue Service commenced collection proceedings against the Moennings for income taxes owed. Rathje paid $14,719 to the IRS on the Moennings’ behalf in exchange for a 100% assignment of their land trust and a promissory note dated

April 23, 1981, at 14% interest for the amount due. (Moenning admitted at trial that he owed this debt and the trial court accordingly entered judgment for Rathje on this portion of his amended counterclaim.) The assignment transferred to Rathje “ALL (100%) of the entire beneficial interest in, to and under” the Moennings’ trust agreement. The document specifically referred to an April 22, 1981, letter from Moenning to Rathje which states in pertinent part as follows:

“[Y]ou now promise to loan to me to pay [the IRS] *** provided that Margot and I assign to you, *** the entire (100%) beneficial interest of the [land trust]. I agree to make such an assignment only because you have represented to me that this is the sole basis on which you will loan me money to pay [the IRS], *** and 3) your promise to immediately reconvey this beneficial interest when $13,719.20 is repaid to you. ***
I appreciate your need to feel secure, the business basis for this request and transfer and your willingness to save and protect the property from forced sale or foreclosure as my cash flow improves to service all debt.”

The trust agreement between La Salle and the Moennings provided in pertinent part as follows:

“(F) It is understood and agreed by the parties hereto and by any person who may hereafter become a beneficiary hereunder, that said LASALLE NATIONAL BANK will deal with [the Evanston property or title to the Evanston property] *** on the written direction of such person or persons as may be the beneficiary or beneficiaries at the time, or on the written direction of Richard C. Moenning, *** or such other person or persons who as shall be from time to time named in writing by the beneficiary or beneficiaries ***.”

In May 1985, Rathje, as beneficiary, directed La Salle to convey the Evanston real estate to the Rathje trust at Western National. Rathje testified that he did this to prevent future foreclosures and to prevent Moenning from mortgaging the interest. La Salle complied with Rathje’s direction and closed Moenning’s trust. Joseph Lang, La Salle’s attorney, testified at trial that La Salle closed the trust on May 1, 1985, based upon the 100% assignment of beneficial interest to Rathje. Rathje testified that at the time of this transfer, the land trustee deleted the reference in the assignment to the April 22 letter. Moenning claims that he did not learn of such alteration of the assignment until late 1982. In September 1981, First Federal of Wilmette, the Moennings’ lender, began foreclosure proceedings against the Moennings and La Salle as trustee. A judgment of foreclosure was entered and the premises were sold at a sheriff’s sale in May 1984. On November 1, 1984, Moenning redeemed the property. On the day before the redemption period expired, Moenning contacted Charles Mal-len, an officer at Western National, pursuant to Rathje’s suggestion. Mallen told Moenning that Western National would make an unsecured $94,600 loan at 14% interest to Moenning to redeem the residence and that Rathje’s mother agreed to guarantee the loan. Moen-ning executed and delivered the note on November 1, 1984, and testified that he read and understood the note. He received three checks from Western National totaling $94,600 which funds the bank disbursed from the Rathje trust at Rathje’s request and acting as his agent. The note was renewed three times for 90 days each at 12% per annum interest until maturity. The last note was executed on July 29, 1985. Prior to July 1985, Moenning reduced the principal balance by $1,100 and paid all interest. Moenning subsequently made no payments.

In February 1986, Western National filed a complaint in its individual capacity against Moenning alleging default on the July 1985 note. Western National subsequently moved for summary judgment. Moenning’s cross-motion for summary judgment alleged: failure of consideration because the money came from Rathje’s trust, not from Western National per se; usury; and fraud. After a hearing, the court denied both summary judgment motions, noting that “the only basis” for denying Western National’s summary judgment motion was that Western National as trustee, not individually, was the holder of the note. Western National subsequently amended its complaint to add the bank in its trustee capacity as plaintiff.

Moenning subsequently filed a five-count counterclaim against Western National, La Salle and Rathje which he subsequently amended. After the court struck three counts with prejudice, counts I and IV remained. Count I against Western National and Rathje was an action for declarative and injunctive relief requesting an adjudication of the parties’ rights and liabilities under the July 1985 note, and a judgment that Western National, acting as Rathje’s undisclosed agent, knowingly and illegally charged usurious interest. Count IV against Rathje alleged breach of fiduciary duty.

Rathje’s amended counterclaim against Moenning sought to recover: (1) $14,719 plus 14% interest on the note; (2) $35,382 plus interest for the Harris Bank loan, which Rathje paid after Moenning’s default; and (3) $7,880 plus statutory interest for Rathje’s payments on Moenning’s behalf for utility bills, land trust charges and legal fees. Moenning’s answer and affirmative defenses alleged breach of assignment of beneficial interest in the trust by Rathje, improper payment by Rathje on his guarantee and failure of consideration.

In October 1989, trial began on Western National’s amended complaint, counts I and IV of Moenning’s second amended counterclaim and on the three counts of Rathje’s amended third-party counterclaim. Mallen testified that the money given to Moenning in November 1984 came from Rathje’s living trust; that Rathje initiated the loan and the suit; and that the principal and interest payments were credited to Rathje’s trust. Rathje testified that at his suggestion, Western National loaned Moenning money and that Western National would not otherwise make the loan. He stated that his intent was to make a personal loan to Moenning of $94,600 through the bank in order to redeem Moenning’s property from sale. From 1981 through 1990, Moen-ning never made any payments to Rathje. Moenning lived in the Evanston home rent free since 1981, and Rathje “frequently” paid the taxes and the insurance.

The trial court entered judgment for Western National against Moenning for $157,073.58 ($93,500 principal plus $63,573.58 interest); for Rathje against Moenning for $27,710 ($14,719 principal plus $12,990.80 interest), $49,783.27 ($34,108.01 principal plus $15,475.25 interest) and $12,211.77 ($6,661.11 principal plus interest of $5,550.66), respectively, on his three-count amended counterclaim; and against Moenning on his counterclaim. The court ruled that when Moenning paid the judgment, Rathje would give the house to Moen-ning. The court subsequently granted Western National’s petition for $6,507.81 in attorney fees.

On appeal, Moenning first argues that Western National had no right, interest or title in the promissory note because the loaned funds came from Rathje’s trust. Moenning therefore seeks reversal of the judgments for Western National on the note and on attorney fees. Western National responds that it properly loaned the funds as trustee of Rathje’s trust and therefore had an interest in the promissory note.

Pursuant to the Illinois Trusts and Trustees Act (Ill. Rev. Stat. 1985, ch. 17, par. 1651 et seq.), a trustee has the power to “borrow money and to mortgage, pledge or otherwise encumber any part or all of the trust estate.” (Ill. Rev. Stat. 1985, ch. 17, par. 1657.) The power to borrow money is incidental to a bank’s general banking power. (5 Ill. L. & Prac. Banks §143 (1953).) Moreover, a bank may properly lend money on deposit for a customer. (5 Ill. L. & Prac. Banks §152 (1953).) Under such circumstances, “the bank is an agent *** of the customer, and as such agent it has authority to accept on behalf of its customer, payments of principal and interest on the loan.” 9 C.J.S. Banks and Banking §384(b) (1938).

We conclude that under Illinois law, Western National, as trustee of the Rathje trust, was empowered to loan the funds from Rathje’s trust to Moenning. Indeed, the very nature of a banking institution is to lend funds that belong to other people. The fact that Western National in its capacity as trustee transferred funds to itself as bank which then made the loan to Moenning does not alter Moenning’s liability to Western National. The note itself evidences the obligation between Moenning and Western National. Indeed, Moenning executed and delivered the promissory note to Western National and renewed the note three times. Moreover, he admitted that he read the note and knew what he was doing. Nor do we find the note ambiguous in any material aspect. We reject Moenning’s claim that Western National had no right to sue on the note because it acted as Rathje’s agent and at his request to disburse and collect the money. Under Illinois law, Western National had authority pursuant to Rathje’s direction to lend funds from his trust and to accept payments of principal and interest. Moreover, the trial judge sitting as trier of fact determined that Western National had title to the note, presumably after weighing the evidence adduced at trial and assessing the credibility of witnesses. We do not believe such finding is contrary to the manifest weight of the evidence and therefore decline to disturb it. (In re Estate of Wiese (1989), 178 Ill. App. 3d 938, 533 N.E.2d 1183.) For these reasons, we conclude that Western National had title to the note, and we find that the trial court properly treated Western National as a party plaintiff.

We also reject Moenning’s related claim that the trial court erred in awarding legal fees in favor of Western National. Where a promissory note contains a provision authorizing reasonable attorney fees expended to recover on the note, the trial court may properly award such fees in judgment. (See Main Bank v. Baker (1981), 86 Ill. 2d 188, 427 N.E.2d 94; First National Bank & Trust Co. v. Van Hilsen (1970), 125 Ill. App. 2d 305, 260 N.E.2d 867 (abstract of opinion).) The note in this case provides in pertinent part:

“Undersigned (Moenning) agrees to pay reasonable attorneys’ fees, costs and expenses incurred by Lender in the collection and enforcement of this note.”

Because we conclude that Western National has a legitimate interest in the note, the note’s provision for attorney fees applies to Western National. The trial court therefore properly awarded it reasonable attorney fees expended in recovering on its note.

We next consider Moenning’s claim that the interest collected by Western National violated the Blinois Interest Act (Ill. Rev. Stat. 1985, ch. 17, par. 6401 et seq.). The Illinois Interest Act applicable when this note was executed prescribed the maximum interest rate that may be lawfully contracted for “between any person and any other person or corporation” was 9% per annum. (Ill. Rev. Stat. 1985, ch. 17, par. 6404(1).) Pursuant to the Act, however, this statutory rate expressly does not apply to State banks. (Ill. Rev. Stat. 1985, ch. 17, par. 6404(1).) Whether a loan is usurious depends on whether the party intended to charge unlawful interest. (Saskill v. 4-B Acceptance (1983), 117 Ill. App. 3d 336, 453 N.E.2d 761.) Moreover, we may consider the nature and substance of the transaction rather than its form, to insure against evasion of the statute by a party’s ingenious schemes. Saskill v. 4-B Acceptance (1983), 117 Ill. App. 3d 336, 453 N.E.2d 761.

Moenning argues without authority that because the Rathje trust made the loan “through the bank,” Western National acted as Rathje’s agent and therefore could not charge a higher rate of interest than its principal, the Rathje trust. Western National responds that the interest rate charged was not excessive because it loaned the funds and the statutory usury rate does not apply to banks. We agree. As indicated above, we believe that Western National could legally lend money from Rathje’s trust pursuant to its inherent banking powers. As such, the statutory rate does not apply to this note. Nor is there any evidence in the record that Rathje suggested the initiation of the note from Western National in order to evade the statutory interest provisions.

We next consider Moenning’s claim that the trial court after trial erred in entering judgment on counts II and III of Rathje’s amended counterclaim. In count II, Rathje sought $35,382.90 plus interest for the amount he paid to Harris Bank as guarantor after Moenning defaulted on his payments. Moenning admits the loan but “denies the relief sought,” arguing that Rathje failed to comply with the terms of the guaranty because Rathje did not pay the Harris Bank with Moenning’s knowledge or at his request. This argument is unpersuasive and lacks any authority. Rathje signed an absolute guaranty, which is an unconditional promise by guarantor to be immediately liable upon principal’s default, without notice. (Lawndale Steel Co. v. Appel (1981), 98 Ill. App. 3d 167, 423 N.E.2d 957.) Moenning admitted the loan and his default. As such, we cannot conclude that the trial court erred in entering judgment on count II.

Pursuant to count III, the trial court entered judgment for Rathje for miscellaneous expenses paid on Moenning’s behalf plus interest. Moenning challenges this judgment on the ground that Rathje voluntarily incurred these charges and that the interest rates charged were excessive and usurious. At trial, Rathje testified that Moenning owed him $6,661.11 plus interest for various payments made. The specific expenditures were set forth. Moenning admitted liability on certain payments made to the Harris Bank, and admitted that he owed $520 for payments made to Illinois Bell and the land trustee. Michael Moyski, a certified public accountant, testified that he computed the total interest owed for the expenses claimed under count III based upon an 8% or 14% rate of interest. Moyski could not explain, however, how the rates were chosen and why he applied different rates. Based upon this evidence, we believe that the interest award of $5,550.66 under count III was improper and exceeded the allowable statutory interest. We therefore reverse this portion of the judgment. We affirm, however, the award of the principal sum of $6,661.11 finding it to be supported by the evidence.

Moenning also contends that the trial court improperly dismissed counts II and III of his second amended counterclaim. We note that in reviewing a trial court’s dismissal pursuant to section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2—615), we consider only questions of law presented by the pleadings and the sufficiency of the complaint by determining whether the essential elements of a cause of action were alleged. Duncan v. Rzonca (1985), 133 Ill. App. 3d 184, 478 N.E.2d 603.

Count II sought declaratory and other relief against Western National and Rathje. Count III was an action to quiet title to the Evan-ston real estate against Western National, Rathje and La Salle.

Upon review of the record, we conclude that the trial court properly dismissed counts II and III of Moenning’s counterclaim because he had no legal, tangible interest sufficient to sustain an action for declaratory relief or an action to clear title. (Ill. Rev. Stat. 1989, ch. 110, par. 2—701; Underground Contractors Association v. City of Chicago (1977), 66 Ill. 2d 371, 362 N.E.2d 298; Klingel v. Kehrer (1980), 81 Ill. App. 3d 431, 401 N.E.2d 560.) Rathje held a 100% beneficial interest in the trust with the power of direction, and the April 22 letter was unambiguous. The trial court stated that even if La Salle’s officer deleted the reference to the letter, such act was irrelevant because the assignment was absolute. We agree. The assignment on its face unambiguously gave Rathje an absolute 100% interest in the land trust without specifically reserving a power of direction or indicating that the transfer was for collateral purposes only. Moreover, the April 22 letter did not in any way restrict Rathje from exercising the power of direction. In the letter, Moenning acknowledged that he assigned 100% of the beneficial interest. The letter’s subsequent reference to Rathje’s reconveyance upon Moenning’s repayment of his outstanding obligations does not negate the assignment nor change its effect. Therefore, the deleted reference to the letter is of no consequence.

We finally consider Moenning’s contention that the trial court erred in finding that Rathje was not Moenning’s fiduciary. Our supreme court has stated:

“A fiduciary or confidential relationship exists where, by reason of friendship, agency, business association and experience, trust and confidence are reposed by one person in another who, as a result, gains an influence and superiority over him.” (McCartney v. McCartney (1956), 8 Ill. 2d 494, 499, 134 N.E.2d 789, 792.)

Factors to be considered include the degree of kinship, disparity of age, health and mental condition, and the extent to which the allegedly subservient party entrusted his business and financial affairs and reposed faith and confidence in the dominant party. (Nemeth v. Banhalmi (1981), 99 Ill. App. 3d 493, 425 N.E.2d 1187.) The fact of a blood relationship does not in itself establish a fiduciary relationship. (Perry v. Wyeth (1962), 25 Ill. 2d 250, 184 N.E.2d 861.) Nor does a creditor-debtor relationship necessarily constitute a fiduciary relationship. A fiduciary relationship must be established by such clear and convincing evidence that no other conclusion is possible. See Beelman v. Beelman (1984), 121 Ill. App. 3d 684, 460 N.E.2d 55.

Applying these factors, we conclude that a fiduciary relationship did not arise between Rathje and Moenning. Although Moenning claims that he placed trust and confidence in Rathje during a time of “financial extremis,” Moenning did not entrust Rathje with the power to handle his business and personal financial matters (Cf. Nemeth v. Banhalmi (1981), 99 Ill. App. 3d 493, 425 N.E.2d 1187), nor does it appear that Rathje exerted influence over Moenning or occupied a dominant position over him. In fact, the assignment of beneficial interest and the April 22 letter, in which Moenning recognized “the business basis” for the assignment, suggest an arm’s length transaction. Finally, both Rathje and Moenning are attorneys. There simply was no disparity of age, health, mental condition, education or business experience between Rathje and Moenning sufficient to create a fiduciary relationship.

We note that although Moenning raised several challenges on appeal to the trial court’s judgment in La Salle’s favor, Moenning’s counsel at oral argument conceded that the trial court correctly decided such issues. We, therefore, need not address them.

For the foregoing reasons, that portion of the orders which ordered Moenning to pay $5,550.66 in interest under count III of Rath-je’s counterclaim is reversed. In all other respects, the orders of the circuit court of Cook County are affirmed.

Affirmed in part; reversed in part.

RAKOWSKI, P.J., and EGAN, J., concur.