author: JUSTICE RIZZI

text:
    THE CITY OF CHICAGO, Plaintiff and Counterdefendant-Appellee, v. MARSHALL KORSHAK et al., Defendants and Counterplaintiffs-Appellees (Martin Ryan et al., Intervenors-Appellants).
    First District (3rd Division)
    No. 1—89—3451
    Opinion filed November 28, 1990.
    Rehearing denied January 15, 1991.

      Clinton A. Krislov, John J. Lowrey, and Sidney Z. Karasik, all of Chicago, for appellants.
    Kelly R. Welsh, Corporation Counsel, of Chicago (Larence Rosenthal, Ruth M. Moscovitch, and Lynn Mitchell, Assistant Corporation Counsel, of counsel), for appellee City of Chicago.
    Kevin M. Forde and Katrina Veerhusen, both of Kevin M. Forde, Ltd., of Chicago, for appellee Policemen’s Annuity & Benefit Fund.
    William A. Marovitz, of Marovitz & Edelstein, and Frederick P. Heiss, of Boyle & Heiss, Ltd., both of Chicago, for appellees Laborers’ & Retirement Board Employees’ Annuity & Benefit Fund and Municipal Employees’ Officers’ & Officials’ Annuity & Benefit Fund.
    Martin J. Burns, of Jacobs, Burns, Sugarman & Orlove, of Chicago, for appellee Firemen’s Annuity & Benefit Fund.
   JUSTICE RIZZI

delivered the opinion of the court:

Intervenors-appellants Martin Ryan et al. (Intervenors), class representatives of the participants in the City of Chicago’s (City’s) annuitant health care program, appeal from an order of the trial court which approved the class action settlement agreement proposed by the City and the trustees of four City pension funds (the Funds). We affirm.

The City of Chicago’s retired employees are covered by four annuity and benefit funds: the Policemen’s Annuity and Benefit Fund, the Fireman’s Annuity and Benefit Fund, Municipal Employees’ Officers’ and Official’s Annuity Fund and the Laborers’ and Retirement Board Employees’ Annuity and Benefit Fund. Beginning in 1964, the Funds’ annuitants were allowed to participate in a medical benefits plan sponsored by the City under the same coverage and premium rates offered to current City employees. In 1965, the City began paying the cost of its active employees’ medical insurance coverage and, in 1971, the City paid the cost of its employees’ dependents’ medical insurance coverage. The medical insurance for active employees, annuitants and dependents was provided through traditional insurance policies until 1975 when the City became self-insured. The City then paid Blue Cross, Bankers Life and Home Pharmacy insurance companies to administer its insurance program.

When the annuitants first joined the City’s plan in 1964, the premium rate charged for an individual annuitant under age 65 was $8.04 per month. The premiums were periodically increased. By 1977, when the coverage was self-insured, the monthly rate charged by the City for a single annuitant under age 65 had increased to $38.26.

Prior to 1980, the annuitant beneficiaries paid the entire cost of their health care. That year, the City contributed $2 million toward the cost of the beneficiaries’ health insurance. The payment constituted 31% of the total cost of health care benefits. The City increased the rates charged the annuitants effective April 1982. Since 1982, Medicare-qualified annuitants have paid $21 per month while others have paid $55 per month for health care benefits. The rates have not risen since 1982 and, as a result, the City has had to cover the escalating costs of the pensioners’ policies. By 1989, the City was paying 77% of the health care costs. Prior to 1983, the Funds did not pay any of the cost of annuitants’ health benefits. In October 1987, the City informed the Funds of its intention to cease payment of annuitants’ health care benefit costs as of December 31,1987.

The dispute in this case arises out of the subsequent complaint for mandamus, restitution and other relief filed in 1987 by the City against trustees of the Funds to recover payments made for a portion of pension fund beneficiaries’ health care costs. State law specifies the monthly amounts the City is to raise through its tax levy for the cost of beneficiaries’ health care and the rest of the cost is paid by the beneficiaries who want coverage. The City’s lawsuit sought both an order declaring how much the City must pay and recovery of prior “illegal” payments. The Funds’ trustees responded to the City’s suit by filing a motion to dismiss and a counterclaim on behalf of their annuitants to prevent the City from terminating the annuitants’ coverage under the City’s plan and to compel the City to continue paying for a portion of the coverage. Certain individual, annuitants, who are the appellants in this matter, were granted leave to intervene in the trial court proceedings.

Following a hearing, the trial court dismissed the City’s complaint with prejudice, finding that the Funds had no obligation to reimburse the City for the health care benefits received by the annuitants since 1980. The claims asserted in the Funds’ counterclaims were the subject of a June 1988 bench trial. Before the trial court issued its decision, however, the City and the Funds agreed to support legislation amending the Pension Code and to enter into a settlement agreement consistent with the legislation. The terms of the settlement agreement provide that the City pay at least 50% of the cost of the health care claims of annuitants and dependants who participate in the City’s plan. The legislation further provides that the City’s obligation to continue coverage under the legislation will terminate at the end of 1997, but that, in the event that some permanent solution is not achieved by 1998, the annuitants will be permitted to assert whatever legal rights they had at the time the trial of the counterclaims commenced.

Intervenors filed a motion for summary judgment asking the trial court to permanently enjoin the City from changing the terms of the health care benefits provided to annuitants. The trial court held a fairness hearing on November 27, 1989, wherein it approved the settlement and thus decided not to rule on the Intervenors’ motion for summary judgment. This appeal followed. On February 14, 1990, this court granted the Intervenors’ motion to stay pending appeal implementation of the trial court’s order which approved the settlement.

On appeal, the Intervenors contend that the trial court abused its discretion in approving the class action settlement. We disagree. The procedural and substantive standards governing class action settlement hearings are well established. On appeal, the trial court’s decision may be reversed only on a clear showing that the trial court was guilty of an abuse of discretion. (People ex rel. Wilcox v. Equity Funding Life Insurance Co. (1975), 61 Ill. 2d 303, 316, 335 N.E.2d 448, 455.) A trial court’s approval of a settlement should not be overturned on appeal unless, taken as a whole, the settlement appears on its face so unfair as to preclude judicial approval. Gowdey v. Commonwealth Edison Co. (1976), 37 Ill. App. 3d 140, 149-50, 345 N.E.2d 785, 793.

The determination of whether a settlement is fair, reasonable and adequate requires the examination of an amalgam of factors, the principle factor is a balancing or comparison of the terms of the compromise with the likely rewards of litigation, as well as a determination of whether the settlement is in the best interests of all those who will be affected by it. (Wilcox, 61 Ill. 2d at 316.) Although review of class action settlements necessarily proceeds on a case-by-case basis, certain factors have been consistently identified as relevant to the fairness determination. Among the factors which the trial court should consider in judging the fairness of the proposal are the following:

(1) the strength of the case for plaintiffs on the merits, balanced against the money or other relief offered in settlement;
(2) the defendant’s ability to pay;
(3) the complexity, length and expense of further litigation;
(4) the amount of opposition to the settlement;
(5) the presence of collusion in reaching a settlement;
(6) the reaction of members of the class to the settlement;
(7) the opinion of competent counsel; and
(8) the stage of proceedings and the amount of discovery completed.

See Armstrong v. Board of School Directors (7th Cir. 1980), 616 E2d 305, 314.

We will review the trial court’s approval of the settlement agreement using the above-noted factors. The first factor is the strength of the case versus relief offered in settlement. In assessing the fairness, reasonableness and adequacy of the settlement, the trial court balanced the amount of the proposed settlement and the immediacy of a prospective recovery for class members against the continuing risks of litigation. The trial court found that the risks in the case primarily involve the establishment of the City’s liability for the cost of its retired employees’ health benefits. The settlement eliminates the risk that the Funds and their annuitants will not be successful in establishing liability. Throughout the litigation, the City maintained the position that it was legally entitled to terminate both the annuitants’ participation in the City’s health benefits plan as well as its payment of any of the costs for those benefits.

Here, by contrast to the usual class action settlement, the Funds and annuitants have not sued for money damages and are not settling for some percentage of their actual damages. Instead, the proposed agreement eliminates the risk that the annuitants would have to pay the entire cost of their health benefits and the further and more serious risk that they may not be able to obtain coverage at any price. The agreement eliminates these risks by committing the City to pay at least 50% of the cost of the annuitants’ health benefits through the end of 1997. At the conclusion of that period, if no permanent solution has been found, the parties will return to the legal postures they were in in June of 1988, before this compromise was negotiated.

The second factor is the defendant’s ability to pay. The trial court found that under the circumstances of this case, this factor was not relevant. We agree.

The third factor is the complexity, length and expense of further litigation. On this point, the court found that this case presented the kind of dispute where a fair and reasonable settlement would be beneficial to all parties concerned and to the public interest. If the agreement were not approved, the litigation would return to the posture it was in in June of 1988 when the parties reached a settlement in principle. During the post-trial stage and probable appeal process, the annuitants’ health benefits would remain in limbo, both as to coverage and liability for payment of the cost of coverage. This settlement resolves these issues in the best interests of both the class and the public.

The fourth factor is the amount of opposition to the settlement. This factor and the sixth factor are closely related. We will therefore discuss the fourth factor in conjunction with our discussion of the sixth factor. The fifth factor is the presence of collusion. In this regard, the trial court noted that it had the opportunity to acquaint itself fully with the facts and law of the case and was aware of the procedural aspects of the litigation. The trial court found that the case was hard fought by both counsel for the City and the Funds and that settlement was reached after vigorously contested litigation and hard bargaining. The trial court therefore concluded that there was no collusion in conjunction with either the litigation or bargaining which preceded the agreement. We agree.

The sixth factor is the reaction of members of the class to the settlement. The trial court balanced the objections of class members against the strengths and weaknesses of the case and the risks of litigation and found the settlement agreement to be manifestly reasonable. Several annuitants complained that as a result of the settlement they would be obligated to pay unaffordable premiums. Although the premiums will substantially increase under the plan, the City is obligated to pay at least 50% of the total $340 actual cost per month for annuitant coverage. Because this settlement eliminates the possibility that the annuitants will not prevail on the merits and obligates the City to pay at least 50% of the annuitants’ health benefits coverage until the end of 1997, it is in the best interests of all parties. Furthermore, in oral argument before this court, counsel for the City indicated that the City has promulgated a municipal ordinance which obligates it to pay 62.5% of annuitants’ health care costs.

The seventh factor is the opinion of competent counsel. The trial court did not separately consider this point, but noted within the context of discussing the arm’s length negotiations which led to settlement that counsel for both sides reached agreement only after hard bargaining. The trial court therefore relied on the opinion of competent trial counsel who approved the agreement.

The eighth factor is the state of proceedings and the amount of discovery completed. The stage of proceedings at which settlement is reached is important because it indicates the extent to which the trial court and counsel were able to evaluate the merits of the case and assess the reasonableness of the settlement. The proposed settlement in this case was entered into after all discovery was completed and a trial had been conducted on the pension funds’ counterclaim. We therefore conclude that the trial court and the parties had all the information necessary to evaluate the merits of the parties’ legal positions and the probable course of future litigation.

Under the • circumstances, reviewing the facts in their entirety in the light most favorable to the settlement, we find the agreement to be both reasonable and in the best interests of all concerned parties. In reaching this conclusion, we defer to the trial court’s decision in this matter. This deference is accorded the trial court because of its familiarity with the litigants, the history of the litigation and the merits of the substantive claims asserted. See Armstrong, 616 F.2d at 315.

Interveners raised numerous additional challenges to the settlement agreement. The Interveners claim, that. (1) notice to the participant class was defective and confusing; (2) the class representatives were prevented from communicating to the class; (3) the court erroneously precluded intervention by entities having vital interests pertinent to the determination of fairness; and (4) the settlement is unfair and should be rejected. Upon review, however, we find the Intervenors’ challenges to be without merit.

On the issue of notice, each of the approximately 16,000 annuitants and widows of annuitants who participate in the City health benefits plan were given notice of the proposed settlement and fairness hearing. The notice informed the class members of their right to appear at the fairness hearing and to enter appearances through their own counsel, if desired. The notice, which fully and explicitly explained the litigation, the proposed settlement and the rights and options of the class members complied with due process. Further, although the trial court denied the Intervenors’ request that they be permitted to include, with the court-approved notice, a statement explaining their opposition to the settlement, they failed to appeal from that order. Accordingly, review of that order is waived. In addition, Intervenors failed to appeal from the trial court’s order denying intervention to the Retired Chicago Police Association, therefore precluding review of that order. See 107 Ill. 2d R. 301; Lewanski v. Lewanski (1978), 59 Ill. App. 3d 805, 815, 375 N.E.2d 961, 968-69.

In sum, the Intervenors’ challenges to the settlement agreement are without merit. Further, our independent review of the settlement agreement using the Armstrong criteria for approval of class action settlements leads us to conclude that the trial court did not abuse its discretion in approving the agreement.

Accordingly, the judgment order of the trial court which approved the settlement agreement in this matter is affirmed.

Affirmed.

CERDA, P.J., and WHITE, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE LaPORTA

license: Public Domain

text:
    JUNE FLACK, Plaintiff-Appellee, v. LORETTA McCLURE, Indiv. and as Adm’r of the Estate of John McClure, Defendant-Appellant.
    First District (6th Division)
    No. 1—90—0175
    Opinion filed November 30, 1990.

      Robert A. Morelli, Ltd., of Chicago, for appellant.
    Russell V. Sutton, of Chicago, for appellee.
   PRESIDING JUSTICE LaPORTA

delivered the opinion of the court:

Plaintiff brought suit July 3, 1985, against defendants for specific performance on a house sale. On September 10, 1985, the trial court granted plaintiff’s motion to amend her complaint to include an additional, claim for an equitable mortgage alleging the defendants had recorded a quitclaim deed given only as security for a $9,000 loan from defendants. A second amended complaint was filed by agreed order October 22, 1985. On February 21, 1986, the court granted defendant’s motion to strike the equitable mortgage claim from the second amended complaint. On March 21, 1986, plaintiff filed a third amended complaint in compliance with the earlier order.

Defendant John McClure died March 2, 1987, and his death was spread of record December 4, 1987, four days before the trial began. The trial court appointed his wife and codefendant, Loretta McClure, special administrator for purpose of the trial. At the close of plaintiff’s case, the trial court permitted plaintiff to amend her complaint to add an equitable mortgage claim to conform with the evidence presented. Following trial, the court ordered defendant to reconvey the property to plaintiff and imposed an equitable mortgage payable from plaintiff to defendant in the amount of $45,757.64.

Defendant appeals, citing as error by the trial judge (1) the admission at trial of the deposition testimony of John McClure, (2) the amendment of the complaint during trial to add an equitable mortgage claim, and (3) the manifest weight of the evidence was insufficient to support a finding that an equitable mortgage should be imposed.

On September 11, 1984, plaintiff signed a contract to sell her southside building to the defendants for $80,000. The defendants also signed the contract, and the closing was scheduled for October 16, 1984. We note that the real estate contract attached as an exhibit to the complaint recites, in pertinent part, “Purchaser has paid $1,000 *** as earnest money to be applied on the purchase price ***.” The sale was never completed because the defendants were unable to secure the required $60,000 financing.

On the day the sales contract was signed, September 11, 1984, plaintiff asked the defendants for $9,000, saying she needed money to pay off a college tuition payment for her son. The defendants, represented by counsel, loaned plaintiff the money in exchange for a quitclaim deed. Plaintiff argues that the deed was given as security, but the defendant argues the deed was an absolute conveyance of the property.

The defendants were unable to get financing to proceed with the scheduled closing on October 16, 1984. The holder of the first mortgage foreclosed on the property, and in December 1984 the property was offered for sale by the Cook County sheriff. Ivory Bennett, a nonlitigant here, bought the property at the sheriff’s sale for $35,000. In an effort to prevent the Bennett sale from being finalized, the defendants recorded the quitclaim deed and subsequently redeemed the property in June 1985, on the final day of the redemption period, by paying the sheriff’s office $36,757.64.

In July 1985 plaintiff sued defendants seeking specific performance on the original sales contract. The pretrial judge granted plaintiff leave to amend her complaint to include a claim for an equitable mortgage. The same judge later granted defendant’s motion to strike the equitable mortgage claim.

At trial before a different judge, plaintiff testified on direct examination and her cross-examination was begun on the first day of trial, December 8, 1987. At the end of the first day’s testimony, defense counsel indicated that he would continue his cross-examination of plaintiff the following day. The court reporter’s notes were lost for the second day of trial, December 9, 1987, and for that reason the balance of plaintiff’s cross-examination testimony is not part of the record before us.

On May 10, 1988, before the trial resumed for a third day, the trial judge permitted plaintiff to amend her complaint again to include a claim for equitable mortgage. The trial resumed for a third day, July 22, 1988, and defendant Loretta McClure testified on direct examination. The trial was recessed thereafter to afford plaintiff an opportunity for further discovery. The trial resumed on September 5, 1989, the final day of trial. At that time, Loretta McClure was too ill to testify on cross-examination and was never cross-examined.

On the final day of trial, over defense objection, the court granted plaintiff’s motion to admit the entire deposition testimony of the deceased, John McClure. The parties stipulated at trial that the defendants were unable to obtain a mortgage for the property and therefore did not complete the sales contract.

In her ruling at the conclusion of the trial, the trial judge found the equities were with the plaintiff, ordered defendant to reconvey the property to plaintiff and declared an equitable mortgage in the defendant’s favor in the amount of $45,757.64 — the cost of the redemption together with the $9,000 “loan.” Defendant appeals from that order, citing three errors by the trial judge as issues here. Defendant contends the trial court improperly admitted John McClure’s deposition into evidence, improperly permitted plaintiff to amend her complaint to include an equitable mortgage count, and erred when it found sufficient evidence to impose an equitable mortgage.

We first consider whether the trial judge erred in admitting the deposition testimony of deceased defendant John McClure. Supreme Court Rule 202 (107 Ill. 2d R. 202) distinguishes between discovery and evidence depositions. Rule 202 states: “The notice, order, or stipulation to take a deposition shall specify whether the deposition is to be a discovery deposition or an evidence deposition. In the absence of specification a deposition is a discovery deposition only. If both discovery and evidence depositions are desired of the-same witness they shall be taken separately, unless the parties stipulate otherwise or the court orders otherwise upon notice and motion.” 107 Ill. 2d R. 202.

Defendant contends McClure’s deposition testimony was inadmissible, because (1) it was taken for discovery purposes only and (2) it was not signed by McClure. Plaintiff argues, however, that the deposition was admissible because notice to the defendants indicated that it would be for both discovery and evidentiary purposes. Plaintiff argues also that the defendant’s attorney, through her conduct, agreed to the dual purpose when she remained silent when the plaintiff’s attorney stated on the record the dual purpose of the deposition.

Defendant argues that conduct by an attorney is not enough to create a “stipulation” under the law. While a stipulation need not follow any particular form, it must be clear, certain and definite in its material provisions. (Village of Schaumburg v. Franberg (1981), 99 Ill. App. 3d 1, 4, 424 N.E.2d 1239, 1242.) Defendant argues that if the decision is allowed to stand, any party would be able to take simultaneous discovery and evidence depositions on their own notice — in essence rewriting Supreme Court Rule 202.

Plaintiff notes that notice to the defendants indicated the dual purpose of the deposition and that the dual purpose was repeated at the beginning of the deposition. A stipulation is like a contract, and the court will look to the actual intention of the parties. (Scott v. Dreis & Krump Manufacturing Co. (1975), 26 Ill. App. 3d 971, 989, 326 N.E.2d 74, 86.) The agreement need not require a meeting of the minds. A subjective understanding is not requisite. Conduct can indicate the terms of the agreement. Steinberg v. Chicago Medical School (1977), 69 Ill. 2d 320, 330-31, 371 N.E.2d 634, 638-40.

Plaintiff relies on a case where a discovery deposition was allowed as an evidence deposition because the deponent lived in another State and was not expected to or able to travel for the trial. There the court found the opposing party had actual notice because the parties discussed in court the witness’s inability to travel. (In re Estate of Ragen (1981), 96 Ill. App. 3d 1035, 1046, 422 N.E.2d 179, 187.) Defendant distinguished Ragen by noting the fact there that the witness had always been unable to travel, whereas the parties in this case could not have known ahead of time that John McClure would not be available for trial.

Here, in admitting the deposition testimony, the trial judge stated that the comments published with the rules show the purpose behind Rule 202. The comments state in pertinent part: “[T]he federal practice of combining evidence and discovery depositions tends to impair and restrict discovery, encourage objections and motions and other disruptions of orderly procedure, and to afford a means of entrapment of the unwary and inexperienced.” Ill. Ann. Stat., ch. 110A, par. 202, Historical & Practice Notes, at 261 (Smith-Hurd 1985).

The trial court found proper notice was given and that the dual purpose of the deposition was stated on the record, giving opposing counsel the opportunity to object. “Certainly counsel is aware of the evidentiary portion of this and could have taken whatever measures were necessary to protect her client in the event the deposition would be used as evidence, so I don’t think under these circumstances that the reasons for Rule 202 have been disregarded.” The trial court also found the deposition could be entered without a signature because the signature requirement was impossible to meet when McClure died before the deposition was transcribed. We find the court did not err in admitting the deposition testimony of John McClure.

We next consider whether the trial court erred in permitting plaintiff to amend her complaint to add a claim for equitable mortgage. The pretrial judge assigned to the case permitted an equitable mortgage claim to be added to the complaint but subsequently struck that claim from the complaint upon defendant’s motion. At trial before a different judge, plaintiff was given leave to amend her complaint to add a claim for an equitable mortgage to conform to the proof plaintiff presented at trial.

Defendant cites Towns v. Yellow Cab Co. (1978), 73 Ill. 2d 113, 121, 382 N.E.2d 1217, for the proposition that a prior court order cannot be overturned unless there is a showing that the original order was incorrect or erroneous. However, in Towns, the supreme court urged the trial court to vacate or amend prior orders only after careful consideration, but went on to state that the trial judge is not bound by the order of a previous judge and can correct orders “which it considers to be erroneous.” (Towns, 73 Ill. 2d at 121.) In Towns, as in this case, the litigation went to a second judge for trial as a matter of procedure.

A 1980 appellate court case that gave extensive consideration to amending pleadings stated that courts should permit liberal amendments in the interest of justice. (Pickett v. First American Savings & Loan Association (1980), 90 Ill. App. 3d 245, 249-50, 412 N.E.2d 1113, 1117-18.) The materiality of an amendment to conform to the evidence must be apparent, so that defendant is not prejudiced. Pickett, 90 Ill. App. 3d at 250.

Plaintiff relies on Pickett and argues that no prejudice has been done to defendant here since throughout the trial sufficient evidence was adduced to establish a basis for the imposition of an equitable mortgage. The amendment was allowed at the close of plaintiff’s case to conform to the trial evidence. The first two days of trial occurred in December 1987. The amendment was permitted May 10, 1988. From May 10, 1988, to July 22, 1988, the third day of trial, the defendant had adequate time to prepare a defense to the equitable mortgage claim. In addition, trial was recessed the afternoon of July 22, 1988, to permit plaintiff additional time for discovery, and the final day of trial took place on September 5, 1989, 16 months after plaintiff was allowed to amend her complaint to include the equitable mortgage claim. Clearly the defendant had adequate time to prepare a defense to the equitable mortgage claim. She was not prejudiced when the amendment was permitted. Consistent with the holdings in Towns and Pickett, we find the trial court did not err in permitting plaintiff to amend her complaint.

Finally, we consider whether the evidence was sufficient to support the imposition of an equitable mortgage. “Every deed conveying real estate, which shall appear to have been intended only as a security in the nature of a mortgage, though it be an absolute conveyance in terms, shall be considered as a mortgage.” (Ill. Rev. Stat. 1983, ch. 95, par. 55.) Whether a deed is to be taken as a mortgage depends on the intentions of the parties. (Beelman v. Beelman (1984), 121 Ill. App. 3d 684, 690, 460 N.E.2d 55, 59.) In order to convert a deed absolute on its face into a mortgage, the proof must be clear, satisfactory and convincing and can come from almost every conceivable fact that could legitimately aid that determination. (McGill v. Biggs (1982), 105 Ill. App. 3d 706, 708, 434 N.E.2d 772, 773.) The burden of proof rests upon the party asserting a mortgage where a deed absolute was conveyed. Havana National Bank v. Wiemer (1975), 32 Ill. App. 3d 578, 585, 335 N.E.2d 506, 512.

Since the question of whether to impose an equitable mortgage is based on fact, consideration of the trial testimony is essential. Deeds have been set aside where evidence showed a preexisting debt and the grantee retained a promissory note or other evidence of the debt where an agreement to reconvey was entered into at the same time or where the price paid was far below the fair value of the property. Wilkinson v. Johnson (1963), 29 Ill. 2d 392, 404, 194 N.E.2d 328, 335.

At trial, plaintiff testified that she intended the $9,000 to be an advance on their $80,000 contract. She testified that defendant John McClure assured her the quitclaim deed would not be recorded but would be held as security. She testified she relinquished the quitclaim deed “to show that I was an honest person. I really appreciated him giving me an advance of the $9,000 so that my kid could go to school.”

Plaintiff testified that later defendant Loretta McClure assured her the closing would occur prior to the sheriff’s sale. Plaintiff stated: “She told me not to worry, that God would help me, and that everything would be taken care of.” Evidence admitted at trial included the sales contract and a letter signed by plaintiff dated September 12, 1984, that acknowledged receipt of a $9,000 cashier’s check from defendant John McClure. The letter did not indicate the purpose of the $9,000 payment but it did identify plaintiff as the owner of the four-flat building.

Plaintiff also testified that before the redemption period ended, the McClures indicated they were no longer interested in purchasing the property and she subsequently located a second buyer who was willing to pay $75,000. Plaintiff testified that she asked for a return of the quitclaim deed from the defendants, promising to give them $9,000 after the June 7, 1985, closing. Plaintiff testified that the defendants told her they would not give her the deed until she repaid them $9,000. The second sale was never consummated.

John McClure’s deposition testimony was admitted over defendants’ objection. In his deposition, he testified he gave plaintiff $9,000 in exchange for the quitclaim deed. The deposition includes the following questions and answers between plaintiff’s counsel and John McClure: “At the time Miss Flack-Bargyh gave you the deed, did you feel you owned the property?” “Yes, I think so.” “Did you feel that if Miss Flack-Bargyh gave you $9,000 in return, paid you the $9,000 back, that you would be legally obligated to return her deed?” “Sure.”

Later in the deposition he testified: “At the time we found we could not get the mortgage, if she gave me that $9,000 back, I would give her the quitclaim deed back.” Still later in the same deposition, the following colloquy took place between plaintiff’s attorney and John McClure: “It was your intention for you to give the quitclaim deed back if she gave you your $9,000?” “That’s correct.” “At all times?” “That’s correct.”

John McClure testified in his deposition that he knew of the impending sheriff’s sale and told plaintiff that he believed they could close on the deal before the sheriff’s sale. He also testified that his attorney sent someone to the sheriff’s sale to bid on the property.

Defendant Loretta McClure testified at trial that the quitclaim deed is what plaintiff offered for the $9,000 given to her on the mortgage. She further testified that she and her husband chose to redeem the property on the final day of the redemption period because “that’s the only hope we had of receiving the money that was given— that she had asked for for the mortgage.” (Emphasis added.)

The trial court in its findings at the close of trial made reference to John McClure’s testimony only, noting that he conceded that the quitclaim deed was taken as security. Defendant argues that plaintiff’s entire case is premised on John McClure’s testimony and therefore has no support without its admission. Plaintiff argues that John McClure’s testimony simply corroborates Loretta McClure’s testimony. We find that Loretta McClure’s testimony showed evidence that the deed was not given as an absolute conveyance but rather as a security interest for the $9,000. She specifically identified the transaction as money given “for the mortgage.”

In a bench trial it is within the province of the trial court to determine the credibility and weight of testimony, to resolve inconsistencies and conflicts and to render its decision accordingly. (Silas v. Robinson (1985), 131 Ill. App. 3d 1058, 1061, 477 N.E.2d 4, 6-7.) Though conflicts in evidence exist, a court can still find an equitable mortgage. Burroughs v. Burroughs (1973), 11 Ill. App. 3d 176, 177, 296 N.E.2d 350, 351.

Six factors are to be considered by the trial judge to determine whether an equitable mortgage exists. Those factors include whether a debt exists, the relationship of the parties, whether legal assistance was available, the sophistication and circumstances of each party, the adequacy of the consideration and who retained possession of the property. McGill, 105 Ill. App. 3d at 708; Beelman, 121 Ill. App. 3d at 689.

The existence of a debt is the essential element to establish an equitable mortgage. (Metcalf v. Altenritter (1977), 53 Ill. App. 3d 904, 909, 369 N.E.2d 498, 502.) But the fact that the mortgage was made for a future debt or that there was no fixed time for repayment does not affect the status of an instrument as a mortgage. Davidson v. Iwanowski (1950), 341 Ill. App. 152, 166, 93 N.E.2d 139, 145-46.

The existence of a debt here does not appear to be in doubt. The court in McGill found an indication of a debt relationship in a defendant’s attempt to collect and held that an agreement to re-convey has long been considered a significant factor in distinguishing a sale from a mortgage. (McGill, 105 Ill. App. 3d at 709-10.) Both defendants testified they tried to get the $9,000 back. John McClure said more than once that he would have returned the deed had plaintiff returned the $9,000. In addition, plaintiff signed a note which the defendants retained. Where the grantor is indebted to the grantee at the time of the conveyance, and the grantee retains the note evidencing the indebtedness, then the indebtedness was not satisfied by the conveyance, and, until the contrary is shown, it will be presumed that a mortgage is intended. Havana National Bank, 32 Ill. App. 3d at 584.

Beelman and McGill also hold that a court could consider the prior relationship of the parties, if any. The record does not indicate that the parties had any prior relationship, business or otherwise. The court should also consider whether or not the parties had the benefit of legal assistance at the time of the occurrence. The record indicates that plaintiff did not have advice of counsel when she accepted the $9,000, signed the note and relinquished the quitclaim deed to the defendants whereas the defendants were represented by counsel.

Beelman and McGill also considered the sophistication and circumstances of each party. Here, we do not know the defendants’ financial situation except that they were unable to obtain the necessary financing to close the real estate purchase on the scheduled closing date, October 16, 1984. The record shows plaintiff had a school tuition payment due and was behind on her mortgage payments to the point that her property was about to be foreclosed by the mortgage holder. The record discloses nothing about the sophistication of plaintiff or defendants.

Beehnan and McGill identify a fifth factor: the adequacy of consideration. Where consideration is grossly inadequate, a mortgage is strongly indicated. (McGill, 105 Ill. App. 3d at 708.) Here, the defendants signed an $80,000 contract on the home at the same time they gave plaintiff $9,000. Defendants argue that, in light of the building’s poor condition, “it is clear the actual value of the property was significantly less.” However, in his deposition testimony, John McClure acknowledged that he still would have gone through with the $80,000 contract if he could have obtained a mortgage. Clearly, the $80,000 price was the agreement of the parties, and the defendant may not now argue that the value of the property was “significantly less.”

The final factor the McGill court considered is whether the grantor of the deed remained in possession of the property. (McGill, 105 Ill. App. 3d at 709-10.) In her analysis, the trial judge noted that plaintiff stayed in the home for a year after she gave the defendants the quitclaim deed. Plaintiff remained in the home until the defendants successfully obtained a court order requiring plaintiff to vacate the premises, and this occurred after the defendants had recorded the quitclaim deed and redeemed the property from the foreclosure sale. .We find that the trial evidence clearly supports the finding of an equitable mortgage and that the trial court’s decision was consistent with the manifest weight of the evidence. We find no error.

For all of the foregoing reasons, we affirm the judgment of the trial court.

Judgment affirmed.

McNAMARA and EGAN, JJ., concur.


text:
    THE VILLAGE OF WORTH, Plaintiff-Appellee and Counterdefendant, v. FRED R. HAHN, JR., Defendant-Appellant and Counterplaintiff.
    First District (3rd Division)
    No. 1—88—3025
    Opinion filed December 5, 1990.

      George J. Jasinski, of Palos Heights, for appellant.
    James E. Gierach, of Oak Lawn, for appellee.
   JUSTICE RIZZI

delivered the opinion of the court:

Defendant Fred R. Hahn, Jr. (Hahn), appeals from an order of the circuit court which entered judgment in favor of plaintiff Village of Worth (Village) and against him on plaintiff’s motion for judgment on the pleadings. We affirm.

On March 23, 1987, the Village of Worth filed a two-count verified complaint against Hahn seeking a fine, injunction and other relief. Count I of the complaint alleged that Hahn was the owner of a parcel of residential real estate located within the corporate limits of the Village. The complaint further alleged that beginning on or about January 14, 1986, and continuing until the filing of the complaint, Hahn erected and constructed an addition to his garage which exceeded an area of 576 square feet and a length of 24 feet in violation of a Village of Worth zoning ordinance. Count I’s prayer for relief requested that the court fine defendant $500 for each day that he remained in violation of the zoning ordinance. Count II requested an injunction requiring defendant to correct the zoning violations, an order compelling defendant to demolish the garage addition, the appointment of a receiver and the placement of a lien on the property for the cost of demolition if required to bring the defendant’s real property into compliance with the Village of Worth zoning ordinances.

On May 11, 1987, defendant filed a motion to dismiss plaintiffs complaint. In his motion, defendant alleged that the Village of Worth failed to allow him to appeal from the building inspector’s decision which found him in violation of a Village zoning ordinance. Following briefing and oral argument on August 20, 1987, the court ordered the Village of Worth Zoning Board of Appeals to conduct a hearing on defendant’s request for a variance from the zoning requirements pursuant to the ordinance’s appeals procedures.

On March 31, 1988, plaintiff filed its first amended complaint. On May 31, 1988, when defendant had failed to answer the complaint, plaintiff filed a motion for default judgment. Following a hearing, the trial court denied the motion and allowed defendant until June 13, 1988, to answer. On June 13, 1988, defendant filed an answer, affirmative defense and countercomplaint for declaratory judgment wherein he alleged that the Village of Worth Zoning Board of Appeals had granted his request for a variance. Defendant further alleged that notwithstanding the board’s decision, the Village had failed to implement the variance.

On July 20, 1988, the trial court issued an order allowing plaintiff until July 29, 1988, to respond to defendant’s pleadings and counterclaim. On August 2, 1988, plaintiff filed a motion for judgment on the pleadings, a reply, an answer to plaintiff’s affirmative defense, and a motion to dismiss the countercomplaint for declaratory judgment. On August 10, 1988, the trial court entered an order (1) granting plaintiff’s motion for judgment on the pleadings on counts I and II of its complaint; (2) granting plaintiff’s motion to dismiss defendant’s counterclaim; (3) directing defendant to correct and abate the excess size of his detached garage; and (4) setting the case for a status hearing on September 13,1988.

On September 9, 1988, defendant filed a motion for reconsideration of the court’s August 10 order and a first amended countercomplaint. On September 13, plaintiff filed a motion to dismiss defendant’s first amended countercomplaint with prejudice. On September 13, 1988, the trial court entered an order which (1) denied defendant’s motion to reconsider; (2) granted plaintiff’s motion to dismiss defendant’s first amended countercomplaint with prejudice; and (3) assessed a $500 fine against defendant. On October 6, 1988, defendant filed a motion to stay entry of judgment pending appeal and a notice of appeal. On October 11, 1988, the trial court granted defendant’s motion to stay entry of judgment pending appeal. On October 18, 1988, the trial court ordered the stay of its order to demolish defendant’s garage. This appeal followed.

On appeal defendant first contends that the trial court erred in granting plaintiff’s motion for judgment on the pleadings. We disagree.

A motion for judgment on the pleadings tests the sufficiency of the pleadings by determining whether the plaintiff is entitled to the relief sought by his complaint or, alternatively, whether the defendant by his answer has set up a defense which would entitle him to a hearing on the merits. (Hartlett v. Dahm (1981), 94 Ill. App. 3d 1, 3, 418 N.E.2d 44, 45.) The motion requires an examination of the pleadings to determine the existence or absence of an issue of fact, or whether the controversy can be resolved as a matter of law. (Baker-Wendell, Inc. v. Edward M. Cohon & Associates, Ltd. (1981), 100 Ill. App. 3d 924, 927, 427 N.E.2d 317, 319.) However, if the pleadings put in issue one or more material facts, evidence must be taken to resolve such issues, and a judgment may not be entered on the pleadings. (Bank & Trust Co. v. Arnold N. May Builders, Inc. (1980), 90 Ill. App. 3d 454, 456, 413 N.E.2d, 183, 184.) A motion for judgment on the pleadings admits the truth of all facts well pleaded by the opposite party. Bank & Trust Co., 90 Ill. App. 3d at 456.

In the present case, defendant contends that his answer and countercomplaint raised factual issues which should have precluded the court from entering a judgment on the pleadings. Defendant further argues that his motion for reconsideration in which he alleged that plaintiff refused to allow him to appeal the decision of the Village building inspector should have precluded entry of judgment on the pleadings.

The record reveals that defendant made several judicial admissions in his pleadings which resolved all issues of material fact. Plaintiff by verified complaint alleged that defendant was in violation of a Village of Worth ordinance which required that no garage exceed 576 square feet and no one side of the building exceed 24 feet in length. In his answer, defendant admitted that his garage occupied a gross area of approximately 1,596 square feet and that it had sides which exceeded 24 feet in length. Defendant also admitted that after applying for and receiving a permit to construct a garage with dimensions allowed by the ordinance, he later added an addition which is not used exclusively as a garage, but which exceeds the boundaries authorized by the Village ordinance. Defendant further alleged that since he applied to the zoning board for a variance, he was not in violation of the statute.

In his countercomplaint for declaratory judgment, defendant alleged that although the zoning board of appeals had granted his request for a variance, the Village trustees failed to accept and implement their recommendation. Defendant further alleged that to the extent that Village ordinance prohibited the existence of his garage, it was invalid, void and contrary to the State and Federal Constitutions. Defendant therefore sought a declaratory judgment that the Village ordinance was unconstitutional.

The issue as framed by the pleadings was whether the size of defendant’s garage exceeded the dimensions required by Village ordinance. Defendant admitted that his garage exceeded the required dimensions, but alleged that he had been granted a variance by the zoning board which was not implemented by the Village trustees. Plaintiff alleged in its motion for judgment on the pleadings that the Village of Worth zoning ordinance places the power to grant the type of variation requested by defendant in the board of trustees, who must grant the variance via implementation of an ordinance. Plaintiff further alleged in its reply to defendant’s answer that because the zoning board can only make recommendations upon approval of at least four board members, the vote on defendant’s request for variance which only received three votes did not pass. A copy of the minutes of the Board’s meeting which supports plaintiff’s position was attached to the reply. It is clear that defendant’s request for a variance was denied by the zoning board of appeals. Therefore, defendant by his own admission is in violation of the Village ordinance governing the size of residential garages.

Further, defendant’s contention that an issue raised in his motion for reconsideration should have precluded the court from entering judgment on the pleadings is without merit since that motion was not before the court when the motion for judgment on the pleadings was granted. We therefore conclude that the trial court did not err in granting plaintiff’s motion for judgment on the pleadings.

Defendant raises two additional trial court errors. Defendant contends that the trial court erred in allowing plaintiff to file its response to defendant’s pleadings on August 2, 1988, when its order of July 20 indicated that plaintiff had until July 29, 1988, to respond. Defendant also contends that the trial court erred in granting the plaintiff’s motion to dismiss its first amended countercomplaint with prejudice since plaintiff failed to serve defendant with notice. We disagree with both of defendant’s contentions.

It is a basic principle of appellate practice that a party who brings a cause to the appellate court must provide a record which demonstrates the complained-of error. (Keefe v. O’Neil (1988), 174 Ill. App. 3d 1068, 1071, 529 N.E.2d 628, 630.) In addition, failure to raise an objection at trial or during post-trial proceedings results in waiver of any alleged error. (Western Casualty & Surety Co. v. Brochu (1985), 105 Ill. 2d 486, 500, 475 N.E.2d 872, 879.) Further, the failure to specifically appeal from a trial court order precludes review of that order. Lewanski v. Lewanski (1978), 59 Ill. App. 3d 805, 815, 375 N.E.2d 961, 968-69; 107 Ill. 2d R. 301.

Here, the defendant’s contentions must fail because the record on appeal, which consists of the common-law pleadings alone, does not demonstrate that defendant objected to plaintiff filing its pleadings on August 2 instead of July 29. Defendant failed to either file a written objection or provide this court with a transcript of the relevant court proceedings to demonstrate the complained-of error and defendant’s objection thereto. In addition, defendant failed to include in his prayer for relief in the notice of appeal any request to reverse the trial court’s order dismissing defendant’s first amended countercomplaint with prejudice. Accordingly, any error on those issues is waived.

For the foregoing reasons, the order of the trial court is affirmed.

Affirmed.

CERDA, P.J., and WHITE, J., concur.


text:
      In re MARRIAGE OF MARY ANN JOHNSON, Petitioner-Appellee, and RICHARD W. JOHNSON, Respondent-Appellant.
    First District (3rd Division)
    No. 1—89—0832
    Opinion filed December 5, 1990.

      David Bohrer, of Highland Park, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Obyrietta Gammett Scott and Leonard N. Foster, Assistant State’s Attorneys, of counsel), for appellee.
   JUSTICE RIZZI

delivered the opinion of the court:

Respondent, Richard W. Johnson (Richard), appeals from an order which granted the motion of petitioner Mary Ann Johnson (Mary Ann) to strike his petition for modification of the parties’ dissolution decree. We affirm.

Richard and Mary Ann Johnson were married on April 20, 1968. On October 12, 1970, Richard left home to serve in the United States Army. During his one-year tour of duty overseas, Richard did not return home, nor did he see his wife. Richard returned home from Viet Nam on October 11, 1971. On November 2, 1971, 22 days after Richard’s return, Mary Ann gave birth to a son whom she named Richard Wellington Johnson II.

The couple remained married for several more years, but on May 25, 1976, Mary Ann filed a petition for dissolution of marriage. In her petition Mary Ann alleged that the parties separated on January 1, 1974. Personal service upon Richard was unsuccessful, and he was subsequently served by publication. When Richard failed to appear to contest the petition for dissolution of marriage, Mary Ann obtained a default judgment. The decree of dissolution was entered on December 15, 1977.

On July 1, 1980, Mary Ann, through the State’s Attorney’s office, filed a petition for support. On September 2, 1980, the court ordered Richard to pay support in the amount of $140 per month to the clerk of the circuit court for the use of the Illinois Department of Public Aid. The payment was reduced to $100 per month on April 7, 1981. Richard complied with the support orders until April 15, 1982. However, on February 22, 1984, a new support order was entered along with a $100-per-month income withholding order.

On November 14, 1988, Richard filed a petition for modification of the judgment of dissolution and supplemental orders. In his petition, Richard sought, pursuant to the Illinois Parentage Act of 1984 (Ill. Rev. Stat. 1987, ch. 40, par. 2501 et seq), a declaration of the nonexistence of a parent-and-child relationship between him and Richard II. In the petition and an affidavit, Richard alleged that he was neither the natural nor adoptive parent of Richard II. Richard further alleged that he first learned that he was not Richard II’s biological father in May 1988 through admissions made to school officials by Richard II and his natural father, Merlin Henderson.

On January 3, 1989, Mary Ann, through the State’s Attorney’s office, filed a motion to strike Richard’s petition because it was barred by the Illinois Parentage Act’s statute of limitations. A hearing on the motion was held on February 23, 1989. Following arguments, the court granted Mary Ann’s motion and dismissed Richard’s petition. This appeal followed.

Section 8 of the Illinois Parentage Act of 1984 provides in pertinent part:

“(2) An action brought on behalf of any person other than the child shall be barred if brought later than 2 years after the birth of the child. Failure to bring an action within 2 years shall not bar any party from asserting a defense in any action to declare the non-existence of the parent and child relationship.
(3) An action to declare the non-existence of the parent and child relationship shall be barred if brought later than 2 years after the petitioner obtains knowledge of relevant facts. Failure to bring an action within 2 years shall not bar any party from asserting a defense in any action to declare the existence of the parent and child relationship.” Ill. Rev. Stat. 1987, ch. 40, pars. 2508(a)(2), (a)(3).

The general rule is that an amendment shortening a statute of limitations period will not be retroactively applied so as to terminate a cause of action unless the party has had a reasonable period of time after the effective date of the amendment in which to file his action. (Mega v. Holy Cross Hospital (1986), 111 Ill. 2d 416, 421, 490 N.E.2d 665, 667.) This rule also applies to new statutes of limitations and has been found specifically applicable to the limitations provisions of section 8 of the Hlinois Parentage Act of 1984. (Sakellariadis v. Spanos (1987), 163 Ill. App. 3d 1084, 1089, 517 N.E.2d 324, 328.) A reasonable time for bringing an action in cases under the Act cannot be greater than the statutory limitation period itself, since a longer period would defeat the purpose of the statute. Sakellariadis, 163 Ill. App. 3d at 1089.

In addition, section 25 of the Illinois Parentage Act of 1984 provides:

“Except as provided in Section 8 of this Act, the repeal of the ‘Paternity Act,’ approved July 5, 1957, as amended, shall not affect rights or liabilities which have accrued thereunder and which have been determined, settled or adjudicated prior to the effective date of this Act or which are the subject of proceedings pending thereunder on such effective date. Provided further, this Act shall not be construed to bar an action which would have been barred because the action had not been filed within the then applicable time limitation, or which could not have been maintained under the ‘Paternity Act,’ approved July 5, 1957 and repealed hereunder, as long as the limitations periods set forth in Section 8 of this Act are complied with.” Ill. Rev. Stat. 1987, ch. 40, par. 2525.

In the present case, Richard filed his petition in 1988, three years after the enactment of section 8 of the Act. At that time, Richard II was 17 years of age. Although Richard contends that he did not obtain knowledge of the relevant facts concerning Richard II’s real parentage until May of 1988, his contention strains credulity to the breaking point. When Richard returned from Viet Nam in 1971, his wife was eight months pregnant although he had not seen her in one year. At that time, Richard possessed knowledge of the relevant facts necessary to determine that he was not the father of Mary Ann’s child. However, despite these facts, Richard resumed his marital relationship with Mary Ann and accepted Richard II into the family unit. Richard’s acceptance and acknowledgement of Richard II as his child continued after the parties’ separation and divorce. When Mary Ann petitioned for child support, Richard complied with the support order although he alleged that he based his decision on the advice of counsel who told him that he was not entitled to contest his paternity of Richard II.

Richard further contends that he filed his petition for modification within a reasonable period of time following the enactment of section 8. However, the filing of the petition three years after the enactment of the statute and 15 years after the expiration of the limitations period cannot be construed as reasonable when Richard possessed the relevant facts upon which to base his petition at the time of Richard II’s birth. See Sakellariadis, 163 Ill. App. 3d at 1089-90.

Under these circumstances, we find that the trial court did not err in ruling that Richard’s petition for declaration of the nonexistence of a parental relationship was barred by the statute of limitations provisions of the Hlinois Parentage Act of 1984. We base this decision on the power of this court to draw inferences of fact and enter any order, judgment or relief that could or should have been made in the trial court. 107 Ill. 2d Rules 366(a)(4), (a)(5).

Accordingly, the order of the circuit court of Cook County is affirmed.

Affirmed.

CERDA, P.J., and WHITE, J., concur.


author: JUSTICE JOHNSON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHARLES BYRD et al., Defendants-Appellants.
    First District (4th Division)
    Nos. 1—87—0949, 1—87—1057 cons.
    Opinion filed December 6, 1990.
    Rehearing denied January 7, 1991.

      Randolph N. Stone, Public Defender, of Chicago (Karen E. Tietz, Assistant Public Defender, of counsel), for appellant Charles Byrd.
    Michael J. Pelletier and Patricia Unsinn, both of State Appellate Defender’s Office, of Chicago, for appellant Larry Watts.
    Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb, David R. Butzen, and Michele I. Lavin, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE JOHNSON

delivered the opinion of the court:

After a jury trial, defendants, Charles Byrd and Larry Watts, were found guilty of aggravated criminal sexual assault. (Ill. Rev. Stat. 1985, ch. 38, par. 12—14(a)(2).) Defendant Watts was sentenced to 10 years and defendant Byrd was sentenced to eight years to be served in the Illinois Department of Corrections.

On appeal, defendant Watts seeks reversal of his conviction and remand for a new trial or remand for a new sentencing hearing or reduction of his sentence to a term of eight years. Defendant Byrd seeks reversal of his conviction or reversal of his conviction and remand for new trial or remand of the cause for a new sentencing hearing.

Watts raises the following issues for review: (1) whether the State’s expert witness rendered an opinion on an ultimate issue that was outside of her expertise; (2) whether the cumulative effect of alleged prosecutorial misconduct deprived him of a fair trial; (3) whether he was denied due process when the trial judge considered statements contained in complainant’s impact statement; and (4) whether his 10-year sentence was grossly disparate to the eight-year sentence imposed upon his codefendant.

Byrd raises essentially the same issues, with the exception of the last issue raised by Watts. However, in addition, Byrd raises the following issues: (1) whether the evidence was sufficient to prove him guilty beyond a reasonable doubt, and (2) whether the trial court erred in instructing the jury on an accountability theory.

We affirm.

At trial, complainant testified that on July 20, 1985, at approximately 2 a.m., complainant began walking home after visiting Beverly Smith, one of her friends. Beverly walked part of the way with complainant. Complainant testified that in the vicinity of 39th Street and Cottage Grove Avenue, in Chicago, she stopped to talk with two male acquaintances. Shortly thereafter, Watts, who was driving a car, saw complainant and honked his car horn to attract her attention. Byrd was riding in the car with Watts as a passenger. Watts parked his car across the street from where complainant stood. He got out of the car to talk with her. He identified himself as a friend of complainant’s mother.

After conversing with Watts, complainant agreed to join him in the car; she sat in the front seat and Byrd moved to the back seat. Complainant then asked for a drink. En route to Byrd’s apartment, the parties stopped at a liquor store where Watts purchased a six-pack of beer and a package of cigarettes. Upon their arrival, Byrd and Watts went to the back of the apartment to talk while complainant stayed in the front of the apartment. Watts then invited complainant to join him in the rear of the apartment. When she refused, Watts grabbed complainant and pulled her into one of the rear bedrooms. Byrd, in the meantime, situated himself in another room in the apartment.

Once inside of the bedroom, Watts told complainant to disrobe. When complainant asked Watts to repeat what he had said, he struck her in the face with his fist. Complainant screamed when he hit her. Byrd, who was in another room, asked if Watts was hitting her. Complainant responded that Watts was not hitting her. Watts then struck complainant a second time and told her to take off her clothes. Watts then proceeded to have vaginal and oral intercourse with complainant.

Shortly thereafter, Byrd entered the bedroom. He was nude when he entered the room. Watts then told complainant to tell Byrd to put his penis into her anus. Although complainant complied with this order, Watts struck her again.

After this act and at complainant’s request, she was allowed to go to the bathroom. Both Watts and Byrd later joined her in the bathroom and forced her to have oral intercourse with both of them. Watts then poured beer and shampoo into complainant’s hair and asked whether she liked what he had done. When complainant answered, he slapped her and stated, “When I ask you something you answer by, yes, ma’am [sic].” Watts struck her again and she responded as she was told.

Both Watts and Byrd were in the bathroom with complainant while she bathed. Eventually, Watts left complainant alone in the bathroom with Byrd. Byrd proceeded to wash complainant’s hair. He then took her into the bedroom and had vaginal intercourse with her. After Byrd completed this act, complainant noted that she was bleeding from the vaginal area. Byrd forced complainant to wipe the blood from his penis and offered her a sanitary napkin. Subsequently, complainant dressed and managed to escape from the apartment.

Once out on the street, about one block away from Byrd’s apartment, complainant saw a security guard. The guard testified that when complainant approached him at approximately 4 a.m. on July 20, 1985, she asked whether he had a telephone. He noticed that she was badly shaken and crying. He also noticed swelling in the area of her forehead and blood on her mouth. The guard called the police as complainant was too distraught to make the call.

When the police arrived, they proceeded directly to Byrd’s apartment. Byrd was arrested outside of his apartment. Watts was arrested inside of the apartment. After being advised of their Miranda rights, Watts told the officers that he did not rape complainant because he “did not come in her.”

Complainant was taken to the hospital and received treatment for edema, bruises around both eyes and cheekbones, and abrasions on her buttocks and thighs. The treating physician also found that complainant’s bleeding was due to a four-inch V-shaped laceration on the left side of her vagina.

Byrd testified in his own behalf. He stated that complainant flagged them down while he and Watts were driving in the vicinity of 39th Street and Cottage Grove Avenue. As they drove around the area, they drank liquor and smoked an hallucinogenic drug. Watts then asked complainant to “turn him on.” She agreed to do this for a fee of $45. The parties then proceeded to Byrd’s apartment. Complainant was allegedly paid before entering the apartment building.

According to Byrd, the parties entered the apartment at approximately 1:50 a.m. After drinking beer and smoking marijuana, Watts and complainant went into one of the bedrooms. Byrd smoked marijuana and watched television in another room in the apartment. Subsequently, he was called into.the bedroom with Watts and complainant. At that time, complainant stated, “Come on, [i]t’s your time” and she then guided him in an act of anal intercourse. Thereafter, she had oral intercourse with him. After several minutes, complainant asked if she could take a bath. She went into the bathroom and began to run the water. Approximately 10 minutes later, Byrd entered the bathroom with a towel. He, at that time, noticed that complainant was bleeding. She explained that she must have begun her menstrual cycle. Byrd then gave her a sanitary napkin. He testified that he did not have vaginal intercourse with complainant after she took a bath.

Byrd further testified that complainant then went into the room occupied by Watts. After approximately three minutes, she left that room and went into another bedroom. Shortly thereafter, complainant left the apartment. Byrd dressed, after he heard her close the apartment door, and went in search of complainant. He stated that he went in search of her because he was concerned for her safety in a neighborhood in which she was unfamiliar. He was arrested shortly thereafter.

Watts testified that he picked up complainant while he and Byrd were en route to the liquor store. Complainant allegedly told Watts that it would cost each of them $25 to have sex with her. Watts subtracted $5 from the quoted amount to pay for the liquor complainant requested. The parties then proceeded to the liquor store. According to Watts, complainant waited in the car while he and Byrd went into the store. When Watts came out, he saw complainant expose her breasts to some men. He struck her and told her not to expose her breasts again. Watts stated that complainant then exposed her breasts again and he struck her a second time. He also stated that he struck complainant twice during the entire incident.

Watts further testified that once they were inside of Byrd’s apartment, complainant approached him and performed an act of fellatio. Thereafter, complainant told him to call Byrd into the room with them. She then guided Byrd in an act of anal intercourse with her. According to Watts, after this act, complainant had oral intercourse with him. She then went into the bathroom to bathe. Approximately 20 minutes later, Watts saw complainant getting dressed. After dressing, she asked for some money but then stated, “That’s all right,” and left the apartment. He was arrested sometime thereafter.

At the conclusion of the evidence, the jury found defendants guilty of aggravated criminal sexual assault. The court then imposed sentence. It is from this decision that defendants appeal.

Defendants first argue that reversible error was committed when the trial court allowed an expert witness to render an opinion that was outside of her area of expertise. At trial, Dr. Katherine Wenstrom testified that in her opinion complainant sustained vaginal injuries as a result of nonconsensual intercourse. Defendants argue that this testimony invaded the province of the jury and was based upon mere conjecture and factors outside of her expertise. Defendants contend that Dr. Wenstrom’s testimony did not aid the jury in its determination of whether the acts complained of were nonconsensual. Defendants further contend that the expert testimony was improperly based upon either the doctor’s identification of the type of trauma sustained or it was based upon the expert’s assessment of complainant’s credibility.

The State, on the other hand, maintains that this expert’s testimony was within the province of the jury since her testimony concerned scientific matters that were generally beyond the jury’s experience. Moreover, this testimony, the State argues, is not inadmissible as it is simply an expression of her opinion. We agree.

Dr. Wenstrom, who is trained in both obstetrics and gynecology, has examined 40 to 50 victims of sexual assault. She was also one of complainant’s treating physicians. Dr. Wenstrom testified that although the vagina is a soft, stretchable organ that can accommodate a baby, the injuries complainant sustained must have been the result of nonconsensual intercourse. This opinion was based upon the extensiveness of the injuries; complainant had a four-inch laceration in her vagina. Dr. Wenstrom also testified that complainant had sustained injuries to her head.

The basis for an expert’s opinion may properly include not only medical evidence concerning the nature and extent of injuries sustained but also the surrounding circumstances of the crime. (People v. Harris (1989), 132 Ill. 2d at 366. An expert may also testify on an ultimate issue in a case. Harris, 132 Ill. 2d at 385.

Dr. Wenstrom’s credentials as an expert were not contested. The fact that her opinion may have been based upon the identification of the type of trauma sustained by the complainant or the extensiveness of her injuries does not render her testimony improper. (Harris, 132 Ill. 2d at 385.) Moreover, after reviewing the transcript of Dr. Wenstrom’s testimony, we do not find that her opinion was necessarily based upon the credibility of the complainant to any extent. The error, if any, therefore, would not warrant reversal of this cause. The jury in this case was free to accept or reject the opinion of this witness.

Further, expert testimony is admissible when the subject matter is beyond the experience of common laypersons. (People v. Cole (1988), 170 Ill. App. 3d 912, 929.) Dr. Wenstrom’s testimony aided the jury in understanding the pliability of the vagina and the type of trauma that must be inflicted which would be indicative of nonconsensual sexual intercourse. We, therefore, do not find that the trial court erred in admitting the testimony of Dr. Wenstrom.

Next, defendants argue that the cumulative effect of prosecutorial arguments denigrating the presumption of innocence, attacking defense counsel, and encouraging the jury to engage in unsupported speculation deprived them of a fair trial. The State contends that this issue was waived for review as defendants did not specifically raise this issue in their post-trial motions. An alleged error may properly be preserved for review where both an objection is made at trial and the issue is raised in the defense’s post-trial motion. (People v. Enoch (1988), 122 Ill. 2d 176, 186.) We agree with the State that this issue was waived for our review.

Even assuming, arguendo, that this issue had not been waived, we find the error, if any, would not warrant reversal of defendant’s convictions. Where numerous instances of misconduct are alleged, a court of review may consider the cumulative effect of the comments rather than assess the prejudicial effect of each isolated comment. (People v. Whitlow (1982), 89 Ill. 2d 322, 341.) Great latitude is afforded to attorneys in closing arguments. (People v. Frank lin (1976), 42 Ill. App. 3d 408, 421.) Reversal error may be found where improper argument substantially prejudices the defendant. People v. Cregar (1988), 172 Ill. App. 3d 807, 825-26.

In the instant case, the evidence against defendants was overwhelming. In reviewing the record, including the remarks that defendants complain of, we do not find that defendants were denied a fair trial. Defendants were not so prejudiced as to warrant a reversal.

Next, defendants argue that they were denied due process when the trial judge considered statements contained in the complainant’s impact statement. Moreover, defendants argue that they were not provided with a viable opportunity to rebut the claims made in the report.

At defendants’ sentencing hearing, the victim impact statement was offered by the State. Contained in the report was the following statement by complainant:

“The crime affected my plans to attend school. I was planning to start school in September of 1986 but because I was so upset about the crime I was unable to enroll. I could not concentrate on anything for a long time after the crime.”

Defendants argue that this statement was contradicted by the complainant at trial and should not have been considered, as it was unreliable. The trial court stated that it would give the victim impact statement the same weight as it would give the presentence report. At trial, in January 1987, the complainant testified that she was attending Midwest Women’s Center and studying nursing. Defendants contend that their requests for discovery and cross-examination to test the veracity of the statement should have been granted.

We do not find that the victim impact statement and complainant’s testimony were necessarily inconsistent. As the State argues, the fact that she was too emotionally distraught to enroll in school in September 1986 does not mean that she would never be able to enroll in school. Since this statement was not necessarily inaccurate, we do not find that an error was committed in the trial court’s consideration of this statement.

Even assuming, arguendo, it was error to admit the victim impact statement, we do not find that the trial court gave a great deal of weight to the statement in question. Byrd received an eight-year sentence. Watts received a 10-year sentence. The commission of the crime of which they were convicted carries the potential sentence of 6 to 30 years. (Ill. Rev. Stat. 1985, ch. 38, par. 1005—8—1(a)(3).) If the commission of the offense is accompanied by heinous or brutal behavior indicative of wanton cruelty, an extended term of 30 to 60 years could be imposed. (Ill. Rev. Stat. 1985, ch. 38, pars. 1005—5— 3.2(a)(2), (b)(2).) As the State points out, the sentences were well within the statutory minimum. The error, if any, under the circumstances of this case would be harmless.

Finally, Watts argues that his 10-year sentence is grossly disparate to the eight-year sentence imposed upon his codefendant. Watts points out that he had no prior criminal conviction, while Byrd, alone, had a prior felony conviction. Watts was, however, placed on supervision on a charge of unlawful use of a weapon.

The imposition of a sentence is a matter of judicial discretion and, absent an abuse of discretion, the reviewing court may not alter the sentence of the trial court. (People v. Perruquet (1977), 68 Ill. 2d 149, 153.) “The Constitution permits qualitative differences in meting out punishment and there is no requirement that two persons convicted of the same offense receive identical sentences.” (Williams v. Illinois (1970), 399 U.S. 235, 243, 26 L. Ed. 2d 586, 594, 90 S. Ct. 2018, 2023.) “[Disparity in sentencing between codefendants, without more, does not warrant a reduction of the punishment imposed by the trial court.” People v. Riddle (1988), 175 Ill. App. 3d 85, 92.

The record reveals that the trial court properly considered all of the aggravating and mitigating factors presented by counsel. The record also reveals that Watts initiated the encounter between defendants and complainant. Watts also admitted to having struck complainant twice. The trial judge remarked that he was particularly disturbed with Watts’ denigration of the complainant. We do not find that the trial court abused its discretion in sentencing Watts to a term of 10 years.

Byrd raises two additional issues. First, he contends he was not proved guilty beyond a reasonable doubt of the charge against him, because complainant’s testimony was not clear and convincing. However, the standard to be used in reviewing the sufficiency of evidence in all criminal cases is proof beyond a reasonable doubt, whether the evidence is direct or circumstantial. (People v. Pintos (1989), 133 Ill. 2d 286, 291.) “We will no longer require that in a case in which a sex offense is charged, the State must demonstrate either the victim’s testimony is clear and convincing or substantially corroborated to prove guilt beyond a reasonable doubt.” (People v. James (1990), 200 Ill. App. 3d 380, 394.) It is not the function of a court of review to retry the defendant. (People v. Phillips (1989), 127 Ill. 2d 499, 509.) It is the function of the trier of fact to determine the accused’s guilt or innocence; a court of review will not reverse the conviction unless the evidence is so improbable as to justify a reasonable doubt of the defendant’s guilt. Phillips, 127 Ill. 2d at 509-10.

In the instant case, the evidence was not so improbable as to warrant a reversal of defendant Byrd’s conviction. Byrd was found guilty beyond a reasonable doubt of aggravated criminal sexual assault. Sexual assault is committed when sexual penetration is committed by force or threat of force. Ill. Rev. Stat. 1985, ch. 38, par. 12—14(a)(2).

Complainant testified that Byrd forced her to have oral, anal, and vaginal intercourse with him. She sustained injuries as a result of her encounter with defendants. As the State notes, complainant did not notice any bleeding until after Byrd had engaged in vaginal intercourse with her. We, therefore, find that the evidence was sufficient beyond a reasonable doubt to support Byrd’s conviction.

Next, defendant Byrd argues that the jury was improperly instructed on the law of accountability. He contends that there was no evidence presented to support this theory. A defendant may be held legally accountable for a crime when “[ejither before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense.” (Ill. Rev. Stat. 1985, ch. 38, par. 5—2(c).) The slightest evidence upon a theory of accountability would warrant giving the jury the instruction. People v. Jarvis (1987), 158 Ill. App. 3d 415, 430.

In the instant case, complainant testified that she was forced to commit various sexual acts with both defendants. Byrd admitted to having had sexual intercourse with complainant even though, according to Byrd, the acts were consensual. The jury evidently found complainant’s testimony to be more credible. A court of review will not substitute its judgment for that of the trier of fact where the evidence is conflicting. (People v. Woods (1980), 81 Ill. 2d 537, 542.) Therefore, an instruction on accountability theory would be harmless beyond a reasonable doubt, as Byrd actually participated in the commission of the crime. He did not merely promote or facilitate Watts in the commission of this offense.

Even if Byrd had not forced complainant to have intercourse with him, he may still be held on an accountability theory. A defendant may be held accountable for aggravated criminal sexual assault if he was aware of the commission of the offense even though there was no actual participation in the act. (People v. Jones (1989), 184 Ill. App. 3d 412, 431.) Under the circumstances of this case, we also find that Byrd must have been aware of the violent encounter between Watts and the complainant. Complainant sustained visible facial injuries. Byrd even inquired, at one point, whether Watts had been hitting her. Defendant Byrd’s argument simply fails with respect to this issue.

Accordingly, the decision of the circuit court is affirmed. As part of our judgment, we grant the State’s request that defendants be assessed $75 as costs and fees for this appeal, pursuant to People v. Agnew (1985), 105 Ill. 2d 275, and People v. Nicholls (1978), 71 Ill. 2d 166.

Affirmed.

McMORROW, P.J., and JIGANTI, J., concur.