author: JUSTICE DiVITO

text:
    EDWIN C. FROEHLICH, Ex’r of the Estate of Paul Edwards, Plaintiff-Appellant, v. JOSEPH C.M. SHEEHAN et al., Defendants-Appellees (William Reed, Defendant).
    First District (2nd Division)
    Nos. 1—91—1751, 1—91—3202 cons.
    Opinion filed December 8, 1992.
    Rehearing denied February 4, 1993.

      Robert A. Clifford & Associates, of Chicago (Robert A. Clifford, Richard F. Burke, and Robert R Sheridan, of counsel), for appellant.
    Clausen, Miller, Gorman, Caffrey & Witous, P.C., of Chicago (James T. Ferrini, Kevin J. Glenn, and Edward M. Kay, of counsel), for appellees.
   JUSTICE DiVITO

Plaintiff Edwin C. Froehlich filed a claim on behalf of the estate of Paul Edwards. As respondents in discovery, pursuant to section 2 — 402 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 402), he named Joseph C.M. Sheehan; Joseph C.M. Sheehan, M.D., S.C., Sheehan’s service corporation (collectively, the Sheehan defendants); and a third person. Plaintiff timely moved for leave to file an amended complaint to convert all the respondents in discovery into defendants. The court granted the motion, which had been placed on the routine motion call. Shortly thereafter, Sheehan moved to vacate the order as to him due to plaintiff’s noncompliance with the evidentiary requirements of section 2 — 402, and the corporation later moved to vacate the order as to it. The court granted the motions, and plaintiff appeals both vacatur orders. This court consolidated the appeals and, for the reasons that follow, we affirm.

Paul Edwards died on March 13, 1988. Almost two years later, plaintiff, Edwards’ executor, filed this medical malpractice action against William Reed in which he named the Sheehan defendants and another doctor, J. Theodore King, as respondents in discovery under section 2 — 402. The Sheehan defendants filed a special appearance. Discovery ensued. What discovery requests exist in the record were addressed only to Reed.

Almost six months after filing his initial complaint, plaintiff moved for leave to file an amended complaint, with timely notice to the Sheehan defendants. In the amended version of the complaint, he named the respondents in discovery as defendants. Plaintiff did not indicate on either the notice of motion or the motion itself the purpose of the amendment. Too, although the amended complaint was filed with the motion after the routine motion call, it is unclear from the record if the amended complaint was appended to the notice of motion or presented to the court. Plaintiff placed the motion on the routine motion call, and the circuit court granted the motion without a hearing. The Sheehan defendants made no contemporaneous challenge to plaintiff’s motion.

Within 30 days of the order, however, Sheehan moved to vacate it, arguing that plaintiff had disclosed no evidence of probable cause for converting him from a respondent in discovery into a defendant, as section 2 — 402 requires. Ignoring two briefing schedules, plaintiff filed no brief opposing vacatur of the order until one day prior to the hearing on Sheehan’s motion. To that brief, plaintiff attached an undated, unsigned, and unverified letter, purportedly from a physician, which he had filed without leave of court the day before his brief was filed. In it, an unnamed internist states his or her opinion that Reed and the Sheehan defendants were negligent in their treatment of Edwards, giving facts in support of that conclusion. Plaintiff urged the court to deny Sheehan’s motion, claiming that this letter disclosed probable cause for adding the Sheehan defendants as party defendants, thereby satisfying the evidentiary requirements of section 2 — 402.

After a hearing on Sheehan’s motion, the circuit court granted the motion and dismissed the complaint as to him in an unsigned two-page opinion, ruling that Browning v. Jackson Park Hospital (1987), 163 Ill. App. 3d 543, 516 N.E.2d 797, controlled. At plaintiff’s request, the court entered a written order stating that there was no just cause to delay enforcement or appeal under Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)). Plaintiff appealed (No. 1—91—1751). Over three months later, the Sheehan defendants moved to amend the order nunc pro tunc to the date of the earlier order to include the corporation. The court granted the motion and dismissed both Sheehan defendants, again including language from Rule 304(a). Plaintiff again appealed (No. 1 — 91— 3202).

I

Plaintiff contends, as he did before the circuit court, that the Sheehan defendants waived their right to a probable cause hearing by not challenging his motion contemporaneously. He likens their right to the hearing to a defendant’s right to a jury trial, which may be waived, or the right to object to motions in civil matters, which must be raised at the proper time or will be considered waived. He claims that Browning does not establish a general rule that the waiver doctrine is inapplicable to section 2 — 402 motions but rather that the doctrine is inapplicable when a respondent in discovery has not received notice of the motion. Plaintiff also raises an estoppel argument, contending that the Sheehan defendants’ delay in objecting deprived him of the opportunity to correct any deficiency in his motion within the six-month statutory period. He warns that affirmance will “invit[e] parties to absent themselves from proceedings and reserve their objections to a time most convenient to their cases, rather than being required to present them when an issue first arises.”

The Sheehan defendants deny that they waived their right to object to the lack of supporting evidence, asserting that not only did they commit no decisive act that exhibited their intent to relinquish a known right, but also they promptly moved to vacate the order the circuit court erroneously entered. In addition, they claim that estoppel does not apply because there is no injustice in enforcing section 2 — 402’s provisions, which were well established prior to plaintiff’s motion, and because they committed no affirmative act that could have led plaintiff to believe he could ignore the statute’s requirements.

Plaintiff rejoins that the circuit court abused its discretion in granting the Sheehan defendants’ motion to vacate because the motion was unverified and did not explain why his own motion had not been challenged contemporaneously. He argues that motions to vacate are designed to permit a court to correct an error, and a court commits no error in granting a motion to which no objection is made.

We do not believe that the doctrines of waiver or estoppel apply in the circumstances here. Although we agree with plaintiff that the better practice is to challenge a motion when the circuit court is first asked to consider it, we cannot say that not doing so is tantamount to waiver, for Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)) provides that absent an express written finding in an interlocutory order such as this one that there is no just cause to delay enforcement or appeal, the order is subject to revision at any time prior to the disposition of a case. See also Andreasen v. Suburban Bank (1988), 173 Ill. App. 3d 333, 340, 527 N.E.2d 595, 601 (“While the courts do not condone negligence in answering pleadings in a timely manner, default [orders] are routinely vacated, particularly within term time, for the compelling reason that ‘substantial justice’ between the parties generally requires a hearing on the merits”).

In addition, plaintiff’s concern that the Sheehan defendants’ delay prejudiced him by depriving him of the opportunity to present evidence in support of his motion is bottomed on a misunderstanding of the effect of the vacatur order. The timing of the Sheehan defendants’ motions and the resulting orders did not preclude the court from considering plaintiff’s motion on its merits. On the contrary, as Clark v. Brokaw Hospital (1984), 126 Ill. App. 3d 779, 467 N.E.2d 652, teaches, so long as plaintiff filed his section 2 — 402 motion within six months of first naming a respondent, the effect of the vacatur was to permit the court to rule on his motion as he presented it originally.

II

Plaintiff cites Clark for the proposition that all a plaintiff must do to satisfy section 2 — 402 is to file a motion for leave to amend the original complaint within six months of first naming the respondents, so long as the motion indicates its purpose on its face or the amended complaint is presented or filed with the motion. In Clark, he explains, the court reversed an order dismissing the added defendants who had notice of the intent to join them as defendants but did not enter an objection. The Sheehan defendants distinguish Clark in that there the plaintiff initially did ask for a hearing, after which the court granted the motion.

We believe that plaintiff’s selective reliance on Clark has misled him, for if he had included the next sentence in the passage he cites, he would have understood that compliance with the filing requirements alone will not justify the granting of a section 2 — 402 motion. In Clark, the plaintiff filed a similar motion within the six-month period. The respondents received notice, but they did not appear at the hearing. The court granted the plaintiff’s motion, but it later vacated its order because the notices were untimely. When the plaintiff moved again for leave to file the amended complaint, the court denied the motion on the ground that the plaintiff had not acted within the statutory time period. The appellate court reversed and remanded for another hearing, stating:

“We hold, therefore, that a respondent in discovery may be made a defendant under section 2 — 402 pursuant to a motion by the plaintiff for leave to file an amended complaint where the motion is filed within six months after the respondent is first named in the complaint as a respondent in discovery and either (1) the motion indicates on its face that the purpose of the amendment is to add the respondent in discovery as a defendant or (2) the amended complaint naming the respondent as a defendant is presented or filed with the motion. The addition of the defendant as a party, of course, will only occur if the motion is allowed.” (Emphasis in original.) Clark, 126 Ill. App. 3d at 783, 467 N.E.2d at 655.

In Clark, contrary to plaintiff’s interpretation, the only issue the appellate court considered was the procedural steps a plaintiff must take before a court may consider a motion like this one; it did not address the substantive requirements a plaintiff must satisfy before leave will be granted. Moreover, unlike the motion in Clark, the motion here neither indicated its purpose on its face nor did it state that the proposed amendment was attached to the motion, and the date stamp on the motion and amended complaint in the record do not indicate that the amended complaint was attached to the motion when it was filed prior to the routine motion call. Even if plaintiff had complied with Clark, that decision leaves no doubt that these filing requirements are simply a procedural prerequisite a plaintiff must satisfy before a court may rule on the merits of such a motion. Allowing a plaintiff to add a respondent in discovery as a party defendant may occur only if the circuit court allows the motion, that is, if it makes an evidentiary determination that the evidence discloses probable cause for converting a respondent in discovery into a defendant.

Ill

Plaintiff contends that section 2 — 402 does not expressly state that a hearing is necessary, that no court has imposed the requirement of a formal hearing when there is no controversy as to probable cause, and that the decisions requiring a hearing state it only as dictum. Even if a formal hearing were necessary, he continues, the physician’s letter he presented at the vacatur hearing satisfies his evidentiary burden under section 2 — 402.

The Sheehan defendants contend that under Browning v. Jackson Park Hospital (1987), 163 Ill. App. 3d 543, 516 N.E.2d 797, a plaintiff has an affirmative duty to request a hearing at which to present the evidence the statute requires. Here, they claim, plaintiff deliberately circumvented the statutorily required hearing by placing his motion on the routine motion call, which by definition does not permit evidence to be considered. As a result, the circuit court was unjustified in allowing plaintiff to file the amended complaint in the first place, so its decision to vacate its order was correct. The Sheehan defendants also argue that under Torley v. Foster G. McGaw Hospital (1983), 116 Ill. App. 3d 19, 452 N.E.2d 7, a court must make a probable cause finding before deciding whether to add respondents in discovery as defendants. The sufficiency of proof necessary, the Sheehan defendants add, is a showing “such that ‘a man of ordinary caution and prudence’ would ‘entertain an honest and strong suspicion’ that the purported negligence of the respondent-in-discovery was a proximate cause of plaintiff’s injury,” citing Ingle v. Hospital Sisters Health System (1986), 141 Ill. App. 3d 1057, 1062, 491 N.E.2d 139, 143. They insist that plaintiff presented no such evidence to the court initially, which does not surprise them given that plaintiff undertook no discovery as to them during the almost six months prior to his motion. They also argue that the internist’s letter does not satisfy section 2 — 402 because it was filed after the six-month time period had elapsed and, in any event, does not meet Ingle’s evidentiary standard.

In reply, plaintiff points out that the evidentiary burden need not be satisfied by formal discovery of respondents themselves, so the fact that he propounded no formal discovery against the Sheehan defendants is not dispositive. Plaintiff also claims that Browning required a hearing only because the respondents had neither appeared nor been served with the motion to join them as defendants. Moreover, he maintains, it would not have been “meaningfully different” if he had placed the motion on the regular motion call and the defendants had not objected because lack of objection to any motion tells a judge that the other parties “are satisfied with the justice of the motion.”

Like the circuit court, we find Browning controlling. There, the plaintiff filed a complaint naming three people respondents in discovery. Within the six-month period, the plaintiff filed a motion like plaintiff’s and, like plaintiff, placed it on the routine motion call. He did not serve the respondents with notice of the motion, he did not attach any evidence to the motion, and he did not present any evidence to the court when it ruled on his motion. Two months after the motion was granted, one of the respondents moved to dismiss for the plaintiff’s failure to provide evidence of probable cause to name him as a defendant; the motion was granted. Later, another respondent filed a motion to dismiss under section 2 — 619(5) of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 619(5)) on the same ground. The court “suspended” its order joining the second respondent and continued the matter to allow the plaintiff to produce evidence. The second respondent moved for reconsideration of this order, and the third respondent moved for summary-judgment on the same ground. The circuit court granted the respondents’ motions. The appellate court affirmed, noting that because the plaintiff tried to join the respondents in discovery as defendants after the limitations period had run, he could do so only under section 2 — 402. In the court’s view, section 2 — 402 requires plaintiffs to present evidence to the court to justify granting leave to amend a complaint to convert respondents in discovery to defendants, and the plaintiff had not done so.

The Browning court separately addressed the plaintiff’s contention that even if he had improperly placed his motion on the routine motion call, the proper remedy was to conduct a hearing on the merits of his motion to afford him an opportunity to present supporting evidence, not to dismiss the respondents from the case. The appellate court rejected his proposal, noting that routine motions are defined as those that may be entered without presentation of evidence at a hearing unless a party-objects under the Rules of Procedure in Motion Court, par. 4.1 (1985). Thus, only if the plaintiff had attempted to join the respondents within the limitations period would a routine motion have been appropriate. Because section 2 — 402 requires that motions to convert respondents into defendants be supported by evidence, the appellate court held that section 2 — 402 motions “cannot properly be filed as routine motions” because courts do not consider evidence on routine motions. The court, moreover, decided not to remand the case for a hearing to present the requisite evidence because the plaintiff had chosen not to avail himself of his initial opportunity to place his motion on the regular motion call, where evidence could have been presented. The court concluded by stating that “[w]e hold that plaintiffs must request probable cause hearings on their motions to convert respondents to defendants in order to show that they have the evidence required by the statute.” Browning, 163 Ill. App. 3d at 549, 516 N.E.2d at 801.

Given this explicit wording in Browning, we are mystified by plaintiff’s insistence that courts have addressed the hearing requirement only as mere dictum. The statute permits respondents in discovery to be converted into defendants only “if the evidence discloses the existence of probable cause” for doing so. Thus, the plain meaning of the statute is that a court cannot grant such a motion without making an evidentiary determination. Logically, then, a routine motion call is by its very nature not the proper venue for such motions because asking a court to rule on a motion as routine tells the court that it need not make any evidentiary determinations, a message that here was contrary to the statute’s mandate. Perhaps equally important, the circuit courts rely on parties to place on the routine motion call only motions that perforce require no evidentiary determinations, so placing this motion on the routine motion call would have misled the court. Thus, we agree with Browning: plaintiffs must request probable cause hearings for section 2 — 402 motions.

Moreover, under Browning, the remedy for placing the motion on the routine motion call is to consider the motion as it was originally presented, not to give a plaintiff the opportunity to augment his motion with additional supporting documentation. As the appellate court there ruled, “[when a] plaintiff made no [evidentiary] showing and he specifically asked the court not to hold a hearing on the motion to add respondents as defendants by filing it as a routine motion,” affirmance of vacatur and consequent dismissal is proper. (Emphasis in original.) (Browning, 163 Ill. App. 3d at 549, 516 N.E.2d at 801.) The same is true here: plaintiff initially made no evidentiary showing and asked the court not to hold a hearing by filing his motion as routine. Furthermore, our holding would be no different if plaintiff had not placed his motion on the routine motion call because plaintiff’s original motion here was accompanied by no evidence whatsoever. Indeed, the amended complaint was not even verified. Thus, granting plaintiff’s motion was an error of law.

Even if this court were to diverge from Browning and allow plaintiff a second bite of the apple, we still would be compelled to hold that he failed as a matter of law to meet his evidentiary burden. As Ingle teaches, a circuit court may grant motions like this one only if a plaintiff presents evidence that would engender, in an ordinarily cautious and prudent person, an honest and strong suspicion that the respondent’s alleged breach of the applicable standard of care was the factual and legal cause of the plaintiff’s injury. Unlike the plaintiff in Ingle, however, plaintiff here presented no affidavits, no X rays, no reports by the respondents, nor any evidence other than the internist’s letter, which is unsworn, unsigned, and undated. Thus, the letter is not evidence, much less the type of evidence that would create in an ordinarily cautious and prudent person an honest and strong suspicion that the Sheehan defendants’ negligence caused Edwards’ injuries.

In sum, the circuit court’s decision to grant the Sheehan defendants’ motion was no abuse of discretion and therefore we see no reason to reverse it. (Greer v. Yellow Cab Co. (1991), 221 Ill. App. 3d 908, 915, 582 N.E.2d 1292, 1296.) The plain meaning of section 2 — 402 and its interpretation in the case law establish a simple regime for converting a respondent in discovery into a defendant, which plaintiff neglected to follow in virtually every respect. First, to be timely and have proper form, Clark teaches that a plaintiff’s motion to amend a complaint to convert respondents in discovery into defendants must be filed within six months after naming a respondent in discovery, and the motion must indicate this purpose on its face or by the attachment of the amended complaint when the motion is filed or presented to the court. Next, as Browning holds, section 2 — 402 motions cannot properly be filed as routine motions, so a plaintiff must request a probable cause hearing because, as Torley explains, only a court may decide this evidentiary question. Unlike plaintiff, we do not find these minimal requirements “hoop-jumping” or empty formalism, particularly when section 2 — 402, in effect, affords a plaintiff a six-month extension of the statute of limitations and an opportunity unknown at common law: the right to unilateral discovery.

For the reasons stated above, we affirm the circuit court’s orders vacating the order that granted plaintiff leave to file his amended complaint and dismissing the Sheehan defendants.

Affirmed.

HARTMAN, P.J., and SCARIANO, J., concur.

       The statute states in part as follows:
      “Respondents in discovery. The plaintiff in any civil action may designate as respondents in discovery in his or her pleading those individuals or other entities, other than the named defendants, believed by the plaintiff to have information essential to the determination of who should properly be named as additional defendants in the action.
      Persons or entities so named as respondents in discovery *** may, on motion of the plaintiff, be added as defendants if the evidence discloses the existence of probable cause for such action.
      * ** **
      A person or entity named as a respondent in discovery in any civil action may be made a defendant in the same action at any time within 6 months after being named as a respondent in discovery, even though the time during which an action may otherwise be initiated against him 0£ her may have expired during such 6 month period.” Ill. Rev. Stat. 1989, ch. 110, par. 2— 402.

      King had filed a similar motion. Plaintiff later moved to voluntarily dismiss him as a defendant, which the court allowed.

      Although the order nominally dismisses King, the parties agree that the court intended to vacate the order as to Sheehan, given that the opinion is dated after King had been dismissed voluntarily.

       As plaintiff correctly notes, the court’s earlier order dismissing Sheehan divested it of personal jurisdiction over Sheehan, but this error does not affect the validity of the earlier order as to Sheehan nor the validity of the second order as to the corporation.

       Contrary to plaintiff’s interpretation, this aspect of the Browning decision had nothing to do with lack of notice to the respondents. As noted above, this holding was in response to the plaintiff’s contention that the appropriate remedy for his having mistakenly placed his motion on the routine motion call was not to dismiss but rather to conduct a hearing on his motion.


source: Caselaw Access Project

author: JUSTICE CERDA

license: Public Domain

text:
    RONALD HILDEBRAND, Plaintiff-Appellee, v. ROBERT TOPPING, Defendant-Appellant.
    First District (3rd Division)
    No. 1—89—2452
    Opinion filed December 9, 1992.

      Jerome Marvin Kaplan, of Batler & Schwartz, of Buffalo Grove, for appellant.
    John P. DeRose, of . John P. DeRose & Associates, of Burr Ridge, for appellee.
   JUSTICE CERDA

delivered the opinion of the court:

Plaintiff, Ronald Hildebrand, filed a petition for an accounting seeking an accounting from defendant, Robert Topping, arising out of their relationship in two partnerships, Goldcrest Apartments Limited Partnership and Dixon Apartments General Partnership. After the trial, the court entered judgment in favor of Hildebrand, ordering Topping to pay Hildebrand $142,624.37. The order also provided that Hildebrand receive the full amount plus accumulated interest on deposit with American National Bank in a designated escrow account. The trial court retained jurisdiction for the purpose of overseeing the final windup of the partnership affairs, final accounting, and the sale of the Dixon Apartment Building. This appeal is taken pursuant to Supreme Court Rule 304 (134 Ill. 2d R. 304).

On appeal, Topping asserts that (1) this court lacks jurisdiction because the circuit court’s order was not final and appealable, and (2) the trial court erred in ordering him to pay Hildebrand prior to the court determining a final settlement of the partnership accounts.

Hildebrand and Topping began their professional relationship in 1963 when Hildebrand serviced Topping’s account at the Chicago Title and Trust Company, where Hildebrand was an attorney. In 1966, Topping started his own business, Country Squire Builders, and Hildebrand incorporated the business. Hildebrand performed accounting duties, bookkeeping duties, and prepared individual and business income tax returns for the Toppings and Country Squire Builders. For the services he rendered, Hildebrand regularly invoiced Topping and Country Squire Builders.

In 1968, Topping purchased two parcels of real estate in Forest Park, Illinois, at 7411 Dixon and 320 Circle, with the intention of building multi-unit apartment buildings. The land was purchased and the project financed with construction loans.

A 62-unit building called the Goldcrest Apartments was built at 320 Circle, Forest Park, Illinois. Topping was the general contractor for the construction. Title was held in a land trust, whose sole beneficiary was the 320 Corporation. When the building was completed, a limited partnership was formed in 1969 and later amended in 1970. The amended agreement indicates that Topping was the general partner with a 48.11% interest. There were 21 limited partners, including Hildebrand and his wife, who held a 10% interest.

Topping received his interest in consideration for his contribution of the land and construction of the building. Hildebrand and Topping agreed that Hildebrand was to receive an $8,000 credit against his capital contribution for legal and accounting work he had previously performed on behalf of the partnership. The Illinois Uniform Partnership Act (Ill. Rev. Stat. 1983, ch. IO6V2, par. 1 et seq.), however, prohibits services as the contribution of a limited partner. (Ill. Rev. Stat. 1983, ch. lOG1^, par. 47.) Hildebrand paid $1,500 toward his capital contribution. There was no evidence that any of the other limited partners were consulted about the arrangements between Hildebrand and Topping.

A 35-unit building called the Dixon Apartments was built at 7411 Dixon, Forest Park, Illinois. Title was held in a land trust and Topping was the general contractor for the construction. The 7411 Corporation was formed to hold the beneficial interest in the trust. On January 5, 1969, the Dixon Apartments Partnership was formed as a general partnership, with Topping holding an 89.1% interest, Hildebrand a 9.9% interest, and the 7411 Corporation a 1% interest. The beneficial interest in the land trust was transferred to the general partnership. The partnership agreement provides for no specific dollar amounts for the capital contributions of Hildebrand and Topping. Topping testified that he and Hildebrand made oral agreements as to amounts to be contributed and credits to be given.

From 1968 through May 1981, Hildebrand acted as the accountant and managing partner of both partnerships. He designed and maintained the general ledgers and journals of both partnerships until May 1981. At the end of each year, he prepared a profit and loss statement, a balance sheet, partnership K-l’s and tax advisory information for each of the partners and the partnerships’ State and Federal tax returns. For the legal, accounting, and tax work he performed for both partnerships, Hildebrand rendered regular invoices.

There was no written documentation regarding the amount of fees that Hildebrand should receive for his services. According to Topping, Hildebrand’s annual charges were not to exceed $2,500 for Gold-crest and $2,000 for Dixon. Hildebrand, however, contended that those figures were merely an estimate he gave for his 1968 work. Hildebrand’s notes from an August 1970 meeting between the two men indicated that the amounts were to increase until they reached $250 per month. There was a disagreement whether Hildebrand was to charge the partnerships for management services and bookkeeping or whether those services were to be performed by the on-site managers. There was no evidence that any of the limited partners was ever consulted regarding Hildebrand’s charges to Goldcrest.

Some cash transactions were not reflected in the partnership books. These included rent receipts and expenditures by the on-site manager, Thomas Wood.

In May 1981, Topping demanded and received the surrender of the books and records for both partnerships. From that point, Topping managed both partnerships and buildings. There was extensive testimony and evidence presented regarding Topping’s and Hildebrand’s services, charges, and use of the partnerships’ funds.

In 1981, Hildebrand filed a petition for accounting for both partnerships and sought return of personal effects, including books and records. Topping filed his answer and counterclaim, seeking dissolution and an accounting for both partnerships and an accounting by Hildebrand and payment of certain sums taken by Hildebrand.

The trial lasted over a year. The trial court heard extensive testimony and examined hundreds of pages of exhibits. The trial court indicated that some of the evidence was difficult to follow and that Hildebrand’s bookkeeping methods were very confusing. He also stated that both parties were responsible for neglect and unorthodox practices.

The trial court ruled in favor of Hildebrand on his complaint and against Topping on his counterclaim. The trial court entered judgment against Topping for $142,624.37, and the full amount plus accumulated interest on deposit with the American National Bank in escrow account No. 14004801. The trial court retained jurisdiction to oversee “the final wind up of partnership affairs, final accounting and the sale of the Dixon Apartments Building.” The judgment was appealed pursuant to Supreme Court Rule 304.134 Ill. 2d R. 304.

On appeal, Topping asserts that this court lacks jurisdiction because the circuit court order was not final and appealable pursuant to Supreme Court Rule 304. Although the necessary language is present in the order, Topping argues, it was still not final or appealable.

A final and appealable judgment is one which terminates the litigation and disposes of the rights of the parties either on the entire controversy or on some definite and separate part of it. (Bloom v. Landy (1979), 72 Ill. App. 3d 383, 396.) The fact that an order contains the necessary language cannot confer appellate jurisdiction if the order is in fact not final. (Crane Paper Stock Co. v. Chicago & Northwestern R.R. Co. (1976), 63 Ill. 2d 61, 66.) Instead of bestowing finality on a judgment or order, the special finding pursuant to Supreme Court Rule 304(a) simply makes appealable a final order in a suit with multiple parties or multiple claims. (Bloom, 72 Ill. App. 3d at 395-96.) To determine whether an order is final and appealable requires analysis of the precise nature of the conflict between the parties and the effect that the judgment in question will have on that conflict. In re Estate of Tingos (1979), 72 Ill. App. 3d 703, 709.

Notwithstanding the special language in the order requiring Topping to pay $142,624.37 to Hildebrand, the order is not final and appealable. It is intertwined with the final accounting that is still pending in the trial court. We agree that this case cannot be decided without a full examination of the partnership accounts.

Closely related is Topping’s assertion that the trial court erred in ordering him to pay Hildebrand any amount of money prior to the court determining a final settlement of the partnership accounts. Although the amended complaint was for an accounting and dissolution, the trial court entered an order for Topping to pay a certain amount to Hildebrand and specifically retained jurisdiction for final windup and a final accounting. Topping claims that the order was really a money judgment, not a partial accounting. Furthermore, Topping indicates, the trial court made no findings regarding Topping’s claims against Hildebrand or the respective capital accounts of all of the partners nor determined how profits and losses should be allocated between the partners, except to disallow interest to Hildebrand.

Topping relies on numerous cases that cite the general rule that one partner cannot sue a copartner on a matter concerning the partnership until there has been a final settlement of the partnership accounts. (See Frink v. Ryan (1841), 4 Ill. 322, 326; Schlossberg v. Corrington (1980), 80 Ill. App. 3d 860, 866, Mayhew v. Craig (1929), 253 Ill. App. 238, 241.) These cases are not directly applicable because they explain that the rule applies to cases at law. Here, the claims were for accounting and dissolution brought in chancery court.

The general purpose of this rule was stated in Mayhew, as follows:

“(1) a dispute of this nature ordinarily involves the taking of a partnership account, for, until that is taken, it cannot be known that plaintiff is not liable to refund even more than he claims in the particular suit; (2) in partnership transactions a partner does not as a rule become a creditor or the debtor of a copartner, but of the firm.” Mayhew, 253 Ill. App. at 241.

The rationale for the general rule is applicable. The rationale behind the general rule is that the resolution of disputes between partners on partnership matters usually entails a complete accounting in order to ascertain that the partner who claims some amount from his copartner is not liable to his copartner in connection with other partnership debts. (Mayhew, 253 Ill. App. at 241.) In line with that rationale, the court in Balcor Income Properties, Ltd. v. Arlen Realty, Inc. (1981), 95 Ill. App. 3d 700, 702, found that the better rule is that a partner or partnership can bring an action against a copartner only if the plaintiff’s claim can be decided without a full review of the partnership accounts.

Furthermore, an action for an accounting cannot generally be brought until the partnership has been dissolved even though a joint action for dissolution and accounting is proper. (Korziuk v. Korziuk (1958), 13 Ill. 2d 238, 242.) When a petition for an accounting is brought, it is not proper to render a personal decree against one partner until there is a complete adjustment of the partnership accounts and a disposition of all partnership property leaving nothing for subsequent settlement. (Williams v. Henkle (1916), 201 Ill. App. 362, 370.) Furthermore, one partner cannot maintain an action against his copartner for an accounting as to particular items or transactions. Williams, 201 Ill. App. at 370.

Although Hildebrand did not file an action for a partial accounting, that was the effect of the trial court’s order. The lack of extended findings makes this court’s review more difficult. Because there are findings on some of Hildebrand’s initial claims but not Hildebrand’s other claims or Topping’s counterclaims, it is unclear whether the order was a personal judgment against Topping or a partial accounting. The order does, however, specifically retain jurisdiction for a future final accounting and windup of the partnership affairs.

If the order is a money judgment against Topping, it was inappropriate under the general rule that one partner cannot sue a copartner on a matter concerning the partnership until there has been a final settlement of the partnership accounts. (See Frink, 4 Ill. at 326; Balcor, 95 Ill. App. 3d at 702; Schlossberg, 80 Ill. App. 3d at 866.) If it was a partial accounting, it was inappropriate to render a personal decree against one partner until there is a complete adjustment of the partnership accounts and a disposition of all partnership property leaving nothing for subsequent settlement. Williams, 201 Ill. App. at 370.

Hildebrand did not address the issues of jurisdiction or the lack of a final accounting. Instead, he claims that the trial court properly denied the motion for dissolution. Although the second order appealed from was a denial of dissolution, Topping did not raise that issue on appeal.

We conclude that the circuit court’s order requiring Topping to pay $142,624.37 to Hildebrand is closely intertwined with a complete, final accounting of the partnerships. Therefore, it is necessary for the trial court to determine a final settlement of the partnership accounts.

Based on the foregoing, this cause is remanded to the circuit court for a full accounting.

Remanded.

GREIMAN, P.J., and TULLY, J., concur.


author: JUSTICE McCORMICK

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GREGORIO CARDONA, Defendant-Appellant.
    First District (2nd Division)
    No. 1 — 89—1461
    Opinion filed December 8, 1992.

      Rita A. Fry, Public Defender, of Chicago (Elyse Krug Miller, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Maureen Harton, and Kathleen Bom, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McCORMICK

delivered the opinion of the court:

Defendant, Gregorio Cardona, his brother Roberto, and four other persons participated in a residential burglary in which one of the burglars killed the homeowner. A jury found defendant guilty of murder and residential burglary, and the trial court imposed consecutive sentences of 40 and 15 years’ imprisonment for the crimes. Defendant appeals from these convictions.

We affirm the conviction for felony murder. The trial court committed no reversible error in its evidentiary rulings. The trial court properly inferred from the jury verdict the jury’s intention to convict defendant for felony murder. Since the verdict could not support an inference that the jury found intentional murder, we vacate the conviction for that count. We vacate the conviction for residential burglary as that is a lesser-included offense of the felony murder. Finally, we affirm the sentence the trial court imposed for felony murder. We discuss the facts pertinent to each issue separately.

I

On June 23, 1987, Raymond Carvis died in his home due to multiple stab wounds. His house was ransacked and stereo equipment and jewelry were missing.

A few days later Roberto Cardona sold on the street some jewelry which police believed to be that which had been taken from Carvis’ home. When police questioned Roberto, he told them that on June 23, 1987, he saw Lowell Higgins-Bey and Michael McCastle burglarizing Carvis’ home.

Police arrested Higgins-Bey and McCastle and told them, in separate interviews, that Roberto implicated them in the burglary. Higgins-Bey told police that he participated in the burglary with McCastle, Roberto and defendant. McCastle also admitted participating in the burglary and implicated defendant as another participant. Confronted with these statements, Roberto admitted that he and defendant had participated in the burglary. Police arrested defendant about two hours after Roberto made this admission, after 11 p.m. on July 15,1987, without obtaining a warrant.

The trial court denied defendant’s pretrial motion to quash arrest. On appeal defendant maintains that the statements of Higgins-Bey and McCastle were not sufficiently reliable to support a finding of probable cause.

Sufficient indicia of reliability must support the information which police rely upon to establish probable cause. (People v. James (1987), 118 Ill. 2d 214, 222, 514 N.E.2d 998.) “One indicia of reliability of information is found in admissions against the penal interests of the party giving the information.” (James, 118 Ill. 2d at 223.) Another is in corroboration of the information from other witnesses. (People v. Denham (1968), 41 Ill. 2d 1, 5, 241 N.E.2d 415.) Here, three persons made statements against their own penal interests which also implicated defendant, and those statements substantially corroborated each other. The trial court’s finding of probable cause was not manifestly erroneous. See People v. Adams (1989), 131 Ill. 2d 387, 400, 546 N.E.2d 561.

II

Police permitted Roberto to talk to defendant, who was then 16 years old, at the station. With Officer William O’Donnell present, Roberto said to defendant: “[CJooperate with these guys; they are going to help you.” Defendant later made a statement implicating himself in the burglary. Defendant admitted, in the written statement, that no promises were made to him to induce the confession.

At the hearing on defendant’s motion to suppress his statement, O’Donnell admitted that he overheard the conversation and said nothing. He testified that police never told Roberto what to say to defendant. The officers who were present during questioning of defendant testified that police read defendant his rights, defendant never asked for a lawyer, and police never threatened, coerced or mistreated defendant.

Youth Officer James Bach testified that he arrived at the police station at 1:30 a.m. on July 16, 1987, about two hours after defendant arrived at the station. Bach asked the assistant State’s Attorney whether he had informed defendant’s parents of the arrest and advised defendant of his Miranda rights. The assistant State’s Attorney answered that he had. Defendant told Bach that he understood his rights. Bach remained with defendant throughout the subsequent questioning, staying after defendant confessed at 4:30 a.m.

Defendant testified that when he came to the police station officers asked him to sign some papers. He refused and asked to speak to his lawyer. Officers told him they would bring his brother down to talk sense to him. His brother told him that if he went along with the story that the police would tell him, they would both be released the next morning. Since Roberto had been in custody the day before, and police had released him, defendant believed him. Police did not tell him his rights before he made his confession.

The trial court denied defendant’s motion, finding that “defendant was treated like a gentleman at the police station. There is no *** believable evidence of any physical, psychological or any other type of coercion. There was in fact a reading of the Miranda [r]ights.”

Defendant contends that the trial court should have suppressed his statements to the police as involuntary because police, through defendant’s brother, promised to release him and because police failed to take him to a youth officer before questioning.

The court must look to the totality of the circumstances to determine whether a defendant made statements voluntarily. (In re Lamb (1975), 61 Ill. 2d 383, 388, 336 N.E.2d 753.) “[Cjourts must be especially cautious in cases involving juveniles because the coerciveness of a situation is thereby enhanced.” (People v. Cole (1988), 168 Ill. App. 3d 172, 179, 522 N.E.2d 635.) The court may consider such factors as defendant’s age, the length of interrogation, defendant’s need for sleep, presence of a youth officer and promises made to defendant, but no single one of these factors mandates a finding of involuntariness. (People v. Pittman (1973), 55 Ill. 2d 39, 302 N.E.2d 7; People v. McGhee (1987), 154 Ill. App. 3d 232, 240, 507 N.E.2d 33; People v. Wright (1984), 127 Ill. App. 3d 747, 751, 469 N.E.2d 351.) This court will not overturn the trial court’s determination of voluntariness unless that determination is contrary to the manifest weight of the evidence. People v. Wipfler (1977), 68 Ill. 2d 158, 368 N.E.2d 870.

Police interrogated defendant, who was then 16 years old, from 11:30 p.m. until 4:30 a.m. The trial judge believed police testimony that they advised defendant of his Miranda rights before questioning him and they treated him well. The youth officer did not arrive until 1:30 a.m., when questioning was in progress, but the officer reminded defendant of his rights and remained with him throughout subsequent questioning. The police did not directly make any promises to defendant, and defendant admitted in his transcribed statement that police made no promises to induce the statement. The trial court’s finding that defendant confessed voluntarily is not contrary to the manifest weight of the evidence. See In re Potts (1978), 58 Ill. App. 3d 550, 374 N.E.2d 891.

Ill

The State charged Fernando Gomez, Henry Rodriguez, McCastle, Higgins-Bey and the Cardonas with murder and residential burglary. Gomez and Higgins-Bey agreed to plead guilty to residential burglary and testify against McCastle, Rodriguez and the Cardonas. The State tried defendant on an indictment in four counts, which charged him as one accountable for (1) intentional killing; (2) stabbing the victim while knowing that the acts created a strong probability of death or great bodily harm; (3) killing in the course of the forcible felony of residential burglary; and (4) residential burglary.

Gomez testified that on June 23, 1987, he met the other five participants in front of the Cardonas’ home and they agreed to burglarize a home. They went to Carvis’ home, which was nearby, and Rodriguez went in. After a minute he told Gomez, McCastle and Roberto to follow him, while Higgins-Bey and defendant waited outside. When Gomez entered, he saw Carvis standing by the staircase. McCastle, Rodriguez and Roberto began to struggle with Carvis while Gomez went through the house, looking for things to steal.

Gomez testified that defendant came in later and hit Carvis. Rodriguez pulled out a knife and stabbed Carvis once. Gomez and defendant went back to the television room and Rodriguez said, “Get something to tie this motherfucker up.” Defendant gave Rodriguez a tie. Gomez then left. Shortly after he left, he saw defendant leave; Roberto carried some things out of the home a few minutes later.

Gomez admitted that he lied in his first statement to the police. In his written, signed statement, he said he saw Higgins-Bey kicking Carvis. He explained that he said this because police told him Higgins-Bey implicated him in the burglary. Gomez also told police that he met the other participants over at Maple and Potomac Streets, which is not near defendant’s home, in order to throw them off. On cross-examination, Gomez admitted that he also told police, falsely, that Roberto drove to Carvis’ home in a black car and that he had stopped at a McDonald’s on the way. He admitted that he lied further when he told police that the six participants rushed into the house together.

Higgins-Bey testified that he and defendant waited in the alley until they heard Rodriguez signal for them. When they got upstairs, he saw McCastle holding Carvis by the neck while Roberto and Rodriguez hit him, then Gomez and defendant hit him and Rodriguez stabbed him. On cross-examination, he admitted that there were several inaccuracies and omissions in his initial statement to the police. Defense counsel brought out the omissions, partly by reading from the transcribed statement.

The assistant State’s Attorney read into evidence the statement defendant made to the police. Defendant admitted that he went into Carvis’ home with Higgins-Bey, and he left when he saw Rodriguez stab Carvis once. The attorney also identified a document as Roberto’s statement to the police.

Defendant asked the court to give the jury copies of Higgins-Bey’s and Gomez’s statements to the police. The State asked the court to give the jury a copy of Roberto’s statement as well. The court said the statements of Higgins-Bey and Gomez contained much irrelevant material that was not admissible for any purpose, so it refused to send any statements to the jury.

Defendant claims that this ruling is reversible error. In People v. Lewis (1977), 51 Ill. App. 3d 109, 366 N.E.2d 446, two witnesses, who may have been involved in a fatal stabbing, made formal transcribed statements to police. When they testified against the defendant, defense counsel cross-examined them on inconsistencies between their testimony at trial and the transcribed statements. The trial court refused defendant’s request to send the statements back to the jury room, and the appellate court affirmed, holding:

“Whether or not the typewritten statements should have been given to the jury was within the discretion of the trial court. [Citations.] The trial court did not abuse its discretion in not allowing the jury to have copies of the pretrial statements.” (Lewis, 51 Ill. App. 3d at 119-20.)

Specifically, in view of the irrelevant material included in the transcribed statements, we find that the trial court here did not abuse its discretion by refusing to send the statements to the jury. See also People v. Panzer (1979), 73 Ill. App. 3d 1, 8-9, 391 N.E.2d 467.

IV

The medical examiner testified that Carvis died from 15 deep stab wounds and 22 other wounds caused by at least two different knives. Over defendant’s objection, the court permitted the medical examiner to present gruesome morgue slides showing the many stab wounds; some also showed the victim’s arms tied with a necktie. The court permitted the jury to have photographs of the corpse during deliberations, finding that although there was no issue as to the cause of death, the photographs would help the jury evaluate the credibility of Gomez and Higgins-Bey, since the photographs also showed the interior of the home, and the photographs showed a far greater number of wounds than that to which either witness testified.

Our supreme court announced general principles concerning the admission of gruesome photographs in People v. Jenko (1951), 410 Ill. 478, 102 N.E.2d 783. The court rejected the defendant’s argument that admission of the photographs constituted prejudicial error, holding:

“The fact and cause of death, the number and location of the wounds, the manner in which they were inflicted, and the wilfulness of the acts in question are all material to the offense charged. The photographs tended to establish these facts and conditions, and under such circumstances their production as evidence is a legitimate mode of proof ***. A party cannot have competent evidence excluded merely because it might arouse feelings of horror and indignation in the jury. *** [QJuestions relating to the character of the evidence offered, and the manner and extent of its presentation, are largely within the discretion of the trial judge ***.” Jenko, 410 Ill. at 482.

The slides here corroborated and explained the medical examiner’s testimony (see People v. Hicks (1981), 101 Ill. App. 3d 238, 427 N.E.2d 1328), and the photographs are somewhat probative of the credibility of Higgins-Bey and Gomez (see People v. Speck (1968), 41 Ill. 2d 177, 242 N.E.2d 208, rev’d on other grounds (1971), 403 U.S. 946, 29 L. Ed. 2d 855, 91 S. Ct. 2279). The trial judge did not abuse his discretion by permitting the pathologist to show the morgue slides or by permitting the jury to have the gory photographs with them during deliberations.

V

The court, using the State’s proposed instruction, told the jury that to prove defendant guilty of murder, the State needed to prove that someone for whose acts defendant was responsible caused the death, and that when he did so

“he intended to kill or do great bodily harm to Raymond Car-v[i]s; or he knew that his acts would cause death or great bodily harm [to] Raymond Carv[i]s; or he knew that his acts created a strong probability of death or great bodily harm to Raymond Carv[i]s; or he was committing the offense of residential burglary.”

During deliberations, the jury sent the judge a note asking: “If we find the defendant guilty of *** residential burglary, do we automatically find him guilty of murder?” Following discussion of other proposed answers, the court wrote: “Please read the instructions carefully, they should answer your questions.” The jury returned one verdict finding defendant guilty of residential burglary and one verdict finding defendant guilty of murder.

Defendant argues that the trial court could not enter judgment against him for both felony murder and residential burglary since the burglary was a lesser-included offense of the felony murder. (See People v. King (1977), 66 Ill. 2d 551, 566, 363 N.E.2d 838.) The State does not contend that the two convictions and sentences can stand together, although some Illinois cases support such an argument. (Compare People v. Davis (1988), 173 Ill. App. 3d 300, 313-14, 527 N.E.2d 552; People v. Johnson (1988), 167 Ill. App. 3d 659, 669-70, 521 N.E.2d 609.) Instead, the State asks this court to vacate the felony murder conviction and the conviction for causing death while performing acts which defendant knows will probably cause great bodily harm, affirm the conviction for intentional murder, and impose sentence on that count.

When a jury returns a general verdict, that verdict supports a conviction on any count for which “the jury’s intention can be ascertained with reasonable certainty.” (People v. Tannahill (1976), 38 Ill. App. 3d 767, 773-74, 348 N.E.2d 847.) When the trier of fact finds a defendant guilty on several murder charges for a single murder, the trial court should enter judgment only on the most serious murder charge which the trier of fact found that the State proved beyond a reasonable doubt. (People v. Mack (1984), 105 Ill. 2d 103, 136-37, 473 N.E.2d 880, vacated on other grounds (1987), 479 U.S. 1074, 94 L. Ed. 2d 127, 107 S. Ct. 1266.) Our supreme court has decided that intentional killing is more serious than killing while knowing one’s acts create a strong probability of death or killing in the course of a felony because intentional killing involves the most culpable mental state. Mack, 105 Ill. 2d at 137.

In this case, as in People v. Plummer (1986), 151 Ill. App. 3d 94, 502 N.E.2d 1120, the trial court entered judgment on all three counts of murder, although only one person died, and the trial court imposed sentence on only the felony murder count. In Plummer, this court affirmed the conviction for intentional murder, because that was the most serious charge on which defendant was convicted, vacated the other murder convictions and remanded for sentencing since the trial court had not imposed sentence on the intentional murder charge. Plummer differs from this case in one significant respect: Plummer involved a bench trial and defendant here had a jury trial. Therefore, in Plummer, as in Mack, the trier of fact expressly considered each murder count separately and decided that defendant was guilty of intentional murder, beyond a reasonable doubt.

Our supreme court indicated proper application of Mack in People v. Guest (1986), 115 Ill. 2d 72, 103-04, 503 N.E.2d 255:

“Defendant was charged *** with intentional murder (count 1), knowing murder (count 2), and felony murder (count 3). The record reveals that the trial court found him guilty on all three counts. The court, having heard the witnesses and having weighed the evidence, found that the State had proved each charge beyond a reasonable doubt. However, despite there being evidence to support each charge, it must be remembered that only one person was murdered. In such circumstances, this court has held that only the conviction for the most serious murder offense charged will be upheld, with convictions on the less serious murder charges vacated. [Citations.] Where, as here, charges of intentional, knowing, and felony murder have been proved, intentional murder is deemed the most serious offense. [Citation.] It is clear, therefore, that defendant’s convictions for knowing murder and felony murder should be vacated.”

In Guest, Mack and Plummer, as well as in the other cases the State cites, People v. Pitsonbarger (1990), 142 Ill. 2d 353, 568 N.E.2d 783, and People v. Matthews (1990), 205 Ill. App. 3d 371, 562 N.E.2d 1113, the trial courts in bench trials determined the defendants’ guilt and entered verdicts expressly finding defendants guilty of both intentional murder and felony murder. Juries in Pitsonbarger and Mack heard only the sentencing phases of those trials.

In this case, on the other hand, the jury determined defendant’s guilt. The jury did not make specific findings on each count of the indictment, and the jury’s general verdict does not indicate that it made findings pertinent to all of the State’s theories. The court never asked the jury to consider the question of whether defendant was guilty specifically of intentional murder. The court instructed the jury to return a verdict of guilty of murder even if it found only felony murder. The “distinctive characteristic of felony murder is that it does not involve an intention to kill.” People v. Viser (1975), 62 Ill. 2d 568, 581, 343 N.E.2d 903.

The jury returned a general verdict of guilty of murder. The court can be reasonably certain that the jury found defendant guilty of a count of murder at least as serious as felony murder, since it found defendant guilty both of murder and the felony which formed the predicate offense for the felony murder charge. The court cannot be reasonably certain that the jury intended to convict defendant for intentional murder. The trier of fact here, unlike the trier of fact in the cases which the State cites, never found intentional murder beyond a reasonable doubt. Cf. Guest, 115 Ill. 2d at 103.

When a jury convicted a defendant of murder on instructions which permitted the jury to convict either on a theory of accountability or for guilt as the principal, the appellate court vacated judgment entered by the court for guilt as a principal, affirming the conviction for guilt as an accessory. (People v. Bivens (1987), 163 Ill. App. 3d 472, 494, 516 N.E.2d 738.) The court held:

“From a review of the record before us it cannot be discerned whether the jury by its guilty murder verdict found the defendant, Aryules Bivens, guilty as principal, i.e., that he was the person who actually killed the deceased, Kelvin Coleman, or whether the jury found Bivens guilty under accountability for his aiding, abetting and agreeing to the commission of Coleman’s murder by Johnny Nicks. Having chosen to take two bites from the apple to prove Bivens’ guilt as principal and as an accountable accomplice, the prosecutor was bound by that choice at sentencing. He was not also entitled to another two bites from sentencing. Because the prosecutor presented evidence of Bivens’ guilt as principal as well as evidence of Bivens’ accountability, because the prosecutor argued to the jury to find Bivens guilty on either or both theories and because the jury was so instructed, the guilty verdict fails to specify and it cannot be determined whether the jury found Bivens guilty as the actual shooter or as one who was accountable for the shooting of Coleman, the defendant’s life imprisonment sentence is invalid and it is therefore vacated.” Bivens, 163 Ill. App. 3d at 494.

The prosecutor here invited the jury to enter a verdict of guilty of murder without finding intent to murder, based on the felony murder doctrine, if the jury found that the killing occurred in the course of a residential burglary. The trial court in Bivens could infer that all of the jurors found defendant guilty of murder at least as an accessory; the trial court here could properly infer from the jury’s verdict that all of the jurors found defendant guilty, beyond a reasonable doubt, of murder at least as serious as felony murder, but the court could not infer that the jury found him guilty of the more serious charge of intentional murder. Therefore, we affirm the conviction for felony murder and vacate the other murder convictions.

Illinois appellate courts have reached conclusions contrary to ours in similar circumstances in at least two cases. In People v. Travis (1988), 170 Ill. App. 3d 873, 525 N.E.2d 1137, the trial court instructed the jury to find defendant guilty of murder if it found intent to kill, knowledge that his acts would kill or cause great bodily harm, knowledge that his acts created a strong probability of death or great bodily harm, or if it found that when he caused death he was committing a residential burglary. The jury returned a general verdict of guilty of murder and guilty of residential burglary, and the defendant argued on appeal that the murder conviction should be construed as a felony murder conviction. After discussing the various theories that the jurors could have believed, and agreeing that the jury’s verdict did not show that it accepted any one of these theories, the court held that:

“the general verdict of guilty of murder would support convictions on all four theories. *** Accordingly, our present case should be considered to consist of a conviction for intentional murder ***.” (Travis, 170 Ill. App. 3d at 893.)

Because the court vacated the conviction for felony murder, it found that the residential burglary conviction and the intentional murder conviction could both stand without violating King. Thus, although the appellate court expressly recognized that the finder of fact may not have found an intent to kill, it affirmed a conviction and sentence for intentional murder, a sentence which it recognized as one that could not have been imposed for felony murder.

In People v. Baker (1984), 127 Ill. App. 3d 565, 469 N.E.2d 602, a jury returned a general verdict of guilty of murder and home invasion, and the trial court imposed consecutive sentences for the offenses. Defendant argued that his murder conviction should be construed as a felony murder conviction, for which the home invasion was a lesser-included offense. The court held that “with three possible bases for the general guilty of murder verdict, it is impossible to state that the verdict was based on the felony murder count alone.” (Baker, 127 Ill. App. 3d at 569.) On this basis, the court held that the conviction counts as a conviction for intentional murder, and since home invasion is not an included offense for intentional murder, the court affirmed the convictions and consecutive sentences. Thus, the court in Baker, like the court in Travis, affirmed a conviction for intentional murder although it found that the trier of fact may not have believed that defendant, or one for whom he was accountable, had the intent necessary for intentional murder.

The courts ostensibly based their holdings on a principle announced in People v. Lymore (1962), 25 Ill. 2d 305, 185 N.E.2d 158. In that case, the jury returned a general verdict of guilty on a complaint charging defendant with two counts of burglary and one count of receiving stolen property. The defendant argued that the general verdict was internally inconsistent because finding him guilty of receiving stolen property was inconsistent with finding him guilty of burglary. Our supreme court rejected the argument, holding: “A general finding of guilty is presumed to be based on any good count in the indictment to which the proof is applicable.” (Lymore, 25 Ill. 2d at 307-08.) Since the proof presented applied principally to the burglary charge, the court affirmed the verdict on that charge. The case stands for the proposition that the court should not construe a general verdict on several counts as internally inconsistent if the verdict on any charge is valid. The case does not support the principle that when a jury returns a general verdict of guilty, following instructions to enter the general verdict if it found the defendant guilty on any one of several counts, the court should construe the verdict as a finding on the most serious offense listed as one of the alternatives supporting the general verdict. Nonetheless, that is the principle applied in Baker and Travis.

In Travis and Baker the court imposed a greater sentence appropriate for intentional murder on a defendant found guilty of murder in a general verdict which the jury was instructed to enter if it found either intentional or felony murder. Where the State proved the proposition in the disjunctive, it cannot claim to have proved the conjunctive. Each juror found either intentional or knowing or felony murder; the jurors did not state that they found all three. Because those cases conflict with the fundamental principle that the court cannot impose sentence on a defendant for an offense unless the trier of fact has found the defendant guilty of that offense, we decline to follow Travis and Baker. The verdict here, as in Baker and Travis, does not state that it is a finding of guilt as charged in the indictment, nor does it in any other way indicate that it is a finding on each count. (Compare People v. Green (1963), 27 Ill. 2d 39, 187 N.E.2d 708.) The verdict is, therefore, not sufficient for the trial court to ascertain with reasonable certainty that the jury found defendant guilty of intentional murder. (See People v. Schrader (1954), 2 Ill. 2d 212, 117 N.E.2d 786.) Accordingly, we vacate the convictions for intentional murder and knowing murder. Since the jury found defendant guilty of murder and the felony which formed the basis for the felony murder charge, we infer that it found him guilty of at least felony murder. We affirm the conviction for felony murder.

Thus, we must confront the question which the State sought to avoid, and which the courts in Baker and Travis expressly avoided. Defendant contends that the court cannot sentence him for both felony murder and the predicate felony of residential burglary. The State has offered no argument in opposition.

The appellate courts of this State are in direct conflict on the issue. The first district has repeatedly held, in adherence to People v. Green (1975), 62 Ill. 2d 146, 340 N.E.2d 9, that the underlying felony for felony murder is not a lesser included offense of the felony murder, and therefore separate convictions and sentences for felony murder and the predicate felony may stand. (E.g., People v. Montes (1989) , 192 Ill. App. 3d 874, 884-85, 549 N.E.2d 700; Davis, 173 Ill. App. 3d at 313-14.) The fifth district has adopted the same rule. (People v. Thomas (1991), 217 Ill. App. 3d 698, 706-07, 577 N.E.2d 831.) The third district, interpreting the statutory definition of “included offense” without reference to Green, has found that “[i]n the case of felony murder, the predicate felony is always a lesser included offense.” (People v. Johnson (1991), 223 Ill. App. 3d 169, 170, 584 N.E.2d 515; see People v. Jordan (1983), 116 Ill. App. 3d 269, 275, 452 N.E.2d 93.) The fourth district apparently applies the same rule. (Johnson, 167 Ill. App. 3d at 669-70.) Our supreme court has denied leave to appeal or petition for certiorari for cases on both sides of the issue. See Johnson, 167 Ill. App. 3d 659, appeal denied (1988), 122 Ill. 2d 586, 530 N.E.2d 256; Montes, 192 Ill. App. 3d 874, appeal denied (1990) , 132 Ill. 2d 551, 555 N.E.2d 383.

Section 2 — 9 of the Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, par. 2 — 9) defines “[i]ncluded offense” as “an offense which

(a) Is established by proof of the same or less than all of the facts or a less culpable mental state (or both), than that which is required to establish the commission of the offense charged, or
(b) Consists of an attempt to commit the offense charged or an offense included therein.”

The Appellate Court, Third District, reasoned:

“In the case of felony murder the underlying felony is a lesser included offense because the felony, which in the case at bar was burglary, is established by proof of the same or less than all of the facts required to establish the offense of murder in the course of a burglary. This form of a lesser included offense has been further defined judicially as ‘ “ ‘one composed of some, but not all of the elements of the greater offense, and which does not have any element not included in the greater offense [citation] so that it is impossible to commit the greater offense without necessarily committing the lesser offense.’ ” ’ People v. Devine (1981), 98 Ill. App. 3d 914, 924[, 424 N.E.2d 823].” Jordan, 116 Ill. App. 3d at 275.

Our supreme court in Green did not address this argument, as it did not consider the statutory definition of included offense. The court, relying on People v. Williams (1975), 60 Ill. 2d 1, 322 N.E.2d 819, held that an attempted robbery and a felony murder predicated on that attempted robbery did not arise out of the same transaction. Williams involved findings of guilt on all counts of an indictment charging defendant with murder, felony murder and armed robbery. The court found that although the murder was closely related to the robbery,

“ ‘the crimes are clearly distinct and require different elements of proof.’ [(People v. Johnson (1970), 44 Ill. 2d 463, 475, 256 N.E.2d 343; citations.)] The convictions and sentences imposed upon the defendant for murder and armed robbery may both stand.” Williams, 60 Ill. 2d at 14-15.

The court in Green did not identify an element of the attempted robbery not required for proof of felony murder, nor did the court explain how the prosecution could prove felony murder without proving attempted robbery. To establish felony murder, the prosecution needed to prove that defendant killed the victim without lawful justification, and “in performing the acts which cause[d] the death *** [defendant was] attempting or committing a forcible felony other than voluntary manslaughter.” (Ill. Rev. Stat. 1971, ch. 38, par. 9 — 1 (a)(3).) Since the State based the felony murder charge on the felony of attempted robbery, the State needed to show all the elements of attempted robbery to obtain the felony murder conviction.

Our supreme court has more recently discussed included offenses in People v. Donaldson (1982), 91 Ill. 2d 164, 435 N.E.2d 477. There the court adopted, as a rule of statutory construction, the test established in Blockburger v. United States (1932), 284 U.S. 299, 304, 76 L. Ed. 306, 309, 52 S. Ct. 180, 182:

“[W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact, which the other does not.”

Applying that rule to the facts before it, the court said:

“The underlying felony charge here, aggravated battery causing great bodily harm, does not require proof of a fact in addition to those required to prove the offense of armed violence based on the underlying felony of aggravated battery causing great bodily harm. One cannot violate the armed violence statute without first committing a felony. The alleging of that felony in the armed violence charge has the effect, upon conviction, of making it a necessarily included offense.” (Donaldson, 91 Ill. 2d at 170.)

The court vacated the aggravated battery conviction.

The reasoning of Donaldson is fully applicable to, and entirely contradictory to, Green. We find no language in the felony murder statute, and the court in Green cites none, demonstrating legislative intent to “provide[ ] for separate convictions and sentences on charges of [felony murder] and its predicate or underlying felony.” (Donaldson, 91 Ill. 2d at 168.) We conclude that in Donaldson our supreme court implicitly overruled Green. If we are wrong about the import of Donaldson, we fervently hope that our supreme court will explain the error and resolve the conflict between the districts on this issue.

We anticipate one argument the State might have made for affirming the separate convictions here under the Donaldson rule. To prove felony murder, the prosecutor could have shown that defendant was attempting burglary when he caused the victim’s death. The State needed to prove additional facts establishing successful completion of the burglary to obtain a conviction for that offense. We raise the argument on our own, and we find it unconvincing.

A defendant is guilty of felony murder if he causes death without justification while “attempting or committing a forcible felony.” (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 1(a)(3).) If the State predicates a felony murder charge on attempting a forcible felony like residential burglary, the State must prove all the elements of the felony of attempted residential burglary. The offense of attempted burglary, as an included offense of the felony murder, could not stand together with the felony murder conviction. Where, as here, the State predicates the felony murder charge on committing a burglary, the State must prove the commission of the felony to sustain the felony murder conviction. The State must prove, as a predicate offense, either a forcible felony or an attempted forcible felony to show felony murder; in either case, the predicate offense is included.

Thus, if a defendant in the course of a rape and kidnapping kills the victim, he may be found guilty of felony murder predicated on either the rape or the kidnapping. If the State elects to prove felony murder based on kidnapping, it may be able to obtain a separate conviction for rape insofar as proof of rape would require proof of facts in addition to the killing in the course of kidnapping. Of course, the State would still need to show that the rape involved separate acts from the murder. The State could not, however, obtain separate convictions for that felony murder and the kidnapping. Since the prosecution here based the felony murder charge on residential burglary, the conviction for residential burglary must be vacated.

VI

Finally, defendant maintains that the trial court did not give adequate consideration to his rehabilitative potential when it imposed an excessive sentence of a total of 55 years’ imprisonment. According to the presentence investigation, defendant had no significant prior record. When he was 12 years old, his father committed suicide at home. Defendant ran away from home shortly thereafter, when his mother permitted her new boyfriend to move into the home. Defendant joined the Spanish Cobras and began selling drugs. He returned home after his mother’s boyfriend died. The report does not indicate for how long defendant continued selling drugs, but defendant’s record shows no arrests or convictions for possession or sale of narcotics.

Emphasizing defendant’s drug sales and the pain suffered by Carvis and his family, the court sentenced defendant to 40 years’ imprisonment for felony murder and 15 years’ imprisonment for residential burglary, the sentences to run consecutively. The court entered judgments, but no sentences, on the counts charging defendant with intentional murder and killing while knowing that his acts created a strong probability of great bodily harm. We have already vacated those judgments. Since we vacate the conviction for residential burglary, we also vacate that 15-year sentence.

Trial courts have broad discretion for determining sentences, and we will not disturb a sentence unless the trial court has abused that discretion. (People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.) As our supreme court stated in People v. Cox (1980), 82 Ill. 2d 268, 280, 412 N.E.2d 541:

“The trial judge was charged with the difficult task of fashioning a sentence which would strike the appropriate balance between protection of society and rehabilitation of the offender. *** We have consistently held that it is not our function to serve as a sentencing court, and we will not substitute our judgment for that of the trial court merely because we would have balanced the appropriate factors differently if the task of sentencing had been ours.”

Here, the trial court considered the pretrial investigation and weighed the relevant factors to arrive at a sentence of 40 years’ imprisonment for the felony murder, and that sentence is well within statutory parameters. We find no abuse of discretion.

We find no reversible error in the trial court’s evidentiary rulings. Because the verdict shows that the jury found defendant guilty of at least felony murder, we affirm the conviction and sentence for felony murder. We vacate the convictions for intentional murder and knowing murder since the jury’s verdict is not sufficient to support an inference that the jury found defendant guilty of charges so serious. We vacate the conviction for residential burglary as a lesser included offense of felony murder.

Affirmed in part; vacated in part.

HARTMAN, P.J., and SCARIANO, J., concur.


author: JUSTICE RIZZI

text:
    JIMMY JACKSON, Plaintiff-Appellant, v. BACK OF THE YARDS NEIGHBORHOOD COUNCIL et al., Defendants-Appellees.
    First District (3rd Division)
    No. 1 — 90—1744
    Opinion filed December 9, 1992.

      Harold A. Katz, David E. Rapoport, and David J. Kupets, all of Chicago, for appellant.

      Michael Resis, of Querrey & Harrow, Ltd., of Chicago, for appellee All-star Amusement Company.
    John M. Barnes, of Chicago, for appellee Astro Amusement Company.
   JUSTICE RIZZI

delivered the opinion of the court:

Plaintiff, Jimmy Jackson, filed an action under the Structural Work Act (Ill. Rev. Stat. 1983, ch. 48, par. 60 et seq.), to recover damages from defendants, Back of the Yards Neighborhood Council (Council), Astro Amusement Company (Astro) and Allstar Amusement Company, Inc. (Allstar), for personal injuries sustained in a fall. All-star and Astro filed motions for "summary judgment which were granted. Plaintiff appeals. We reverse.

The issues before this court are: (1) whether the trial court erred when it ruled that plaintiff’s claim under the Structural Work Act (Ill. Rev. Stat. 1983, ch. 48, par. 60 et seq.) was barred by employers’ immunity under the Workers’ Compensation Act (Ill. Rev. Stat. 1983, ch. 48, pars. 138.5(a), 138.11); (2) whether the trial court erred in granting summary judgment on the basis that there was a genuine issue of material fact as to whether defendants were “in charge” of plaintiff’s work; and (3) in the event the trial court’s grant of summary judgment is reversed, whether defendant Allstar is entitled to summary judgment on count I on the basis that the roller coaster from which plaintiff fell was not an “other structure” within the meaning of the Structural Work Act. Ill. Rev. Stat. 1983, ch. 48, par. 60 et seq.

On March 27, 1984, the Council entered into an agreement with Carol Stream Amusements, Alistar and Astro, a group of amusement ride operators, for the purpose of producing the Back of the Yards Fair. Carol Stream Amusements, Alistar and Astro were referred to as “the company” in the agreement. Under the agreement, the company was required to furnish a sufficient number of rides, games, security, and sanitation; to obtain public liability insurance; and to pay a flat fee to the Council. In return for these services, the company was to receive the exclusive right to parking fees, gate charges, beer sales, tent rentals and the proceeds from other fair-related business activities; all money paid for admissions to rides and to concessions; and the right of first refusal for a period of five years to continue to provide these services annually. The agreement was signed by a representative of the Council, and the presidents of Carol Stream Amusements, Alistar and Astro.

In furtherance of the above agreement, the Council and the company formed Spectacular Midways, Inc., and entered into an equipment lease agreement. The presidents of Allstar, Astro and Carol Stream Amusements served as the officers of Spectacular Midways, Inc. The equipment lease agreement makes the following relevant provisions:

“WHEREAS, the PARTIES hereto as LESSOR and LESSEE respectively desire to enter into an agreement for the purpose of leasing carnival equipment and/or personnel, to be used by the LESSOR in furtherance of its contract with the Back of the Yards Council.
THEN, THEREFORE, in consideration of the premises and of the sum of One ($1.00) Dollar and other good and valuable consideration the sufficiency of which is deemed adequate, the PARTIES agree as follows:
1. EQUIPMENT LEASED: Attached to this Agreement is a schedule known as Schedule ‘A’ which sets forth on it the equipment which originally forms the terms of this Lease. The LESSEES of said equipment may from time to time append or alter the schedules as may be agreed between the individual LESSEE and the LESSOR. In addition thereto, such personnel as may be needed to operate the equipment from time to time may be leased or loaned under the terms of this Agreement.
* * *
5. INDEMNIFICATION AND HOLD HARMLESS: The LESSOR agrees to hold harmless and indemnify the LESSEES from any and all claims, causes of action, demands or suits that may arise out of the LESSOR’S operation of the equipment leased and supervision of the personnel loaned. This indemnity extends to all actions in contract, tort and any other cause of action brought by any party in that regard. The LESSOR agrees that there shall be in force at all times appropriate amounts of insurance. This indemnification shall extend to attorneys’ fees, court costs and other costs in connection with the defense of any case.”

The equipment lease agreement was signed by the same persons who signed the first agreement.

Under the terms of both agreements, Shirl T. Magid, president of Carol Stream Amusements, Jeffrey Blomsness, president of Allstar, and Steven Thebault, president of Astro, were to oversee the entire fair.

On August 14, 1984, Jimmy Jackson, an employee of Carol Stream Amusements, was seriously injured when he fell from the “Zyclon 36” roller coaster which he was erecting. Jackson was pushed off the structure when a section of the roller coaster being raised by a crane struck another worker who in turn struck Jackson. Jackson fell approximately 25 feet to the ground. There were no safety belts or harnesses on the work site.

Jackson subsequently brought an action to recover damages for personal injuries sustained in the fall. Count I of Jackson’s second amended complaint alleged that the Council, Alistar and Astro committed willful violations of the Structural Work Act by failing to provide a scaffold upon which he could work, failing to direct and supervise the work, failing to provide safe working conditions and failing to provide protective equipment. (Ill. Rev. Stat. 1983, ch. 48, par. 60 et seq.) Count II was substantially similar to count I; however, count II was based on common law negligence.

Alistar and Astro filed answers denying all material allegations of wrongdoing. Alistar and Astro thereafter filed third-party complaints seeking contribution from Carol Stream Amusements. Carol Stream Amusements filed answers denying all material allegations.

Alistar and Astro then moved for summary judgment. Alistar and Astro argued that they were entitled to summary judgment because they were not “in charge” of the work performed by Jackson within the meaning of the Structural Work Act, and because they owed no duty to Jackson since he was an employee of Carol Stream Amusements.

The trial court found that a joint venture existed between Carol Stream Amusements, Alistar and Astro. The court then held that Jackson was an employee of the joint venture as a matter of law. The trial court also raised employers’ immunity under the Workers’ Compensation Act, sua sponte, stating that all claims against Allstar, Astro and Carol Stream Amusements were barred by the Structural Work Act. (Ill. Rev. Stat. 1983, ch. 48, par. 60 et seq.; Ill. Rev. Stat. 1983, ch. 48, pars. 138.5(a), 138.11.) The court then granted Allstar and Astro’s motion for summary judgment. This appeal followed. Plaintiff and Allstar filed briefs before this court.

Plaintiff contends that the trial court erred when it invoked the employer’s immunity doctrine under the Workers’ Compensation Act on behalf of defendants and ruled that each member of the joint venture was entitled to employers’ immunity as a matter of law. (Ill. Rev. Stat. 1983, ch. 48, pars. 138.5 (a), 138.11.) We agree.

Although the Workers’ Compensation Act provides that employers have an immunity defense against any tort action asserted against them by an employee for injuries sustained in the course of employment (Ill. Rev. Stat. 1983, ch. 48, pars. 138.5(a), 138.11; see also Gannon v. Chicago, Milwaukee, St. Paul & Pacific Ry. Co. (1961), 22 Ill. 2d 305, 322, 175 N.E.2d 785, 794), the immunity is an affirmative defense which the employer must plead and prove. (Doyle v. Rhodes (1984), 101 Ill. 2d 1, 10, 461 N.E.2d 382, 386-87; Hindle v. Dillbeck (1977), 68 Ill. 2d 309, 317-18, 370 N.E.2d 165, 168.) If the defense is not raised by the employer-party before the trial court, it is waived. (Doyle, 101 Ill. 2d at 10, 461 N.E.2d at 386-87; Meador v. City of Salem (1972), 51 Ill. 2d 572, 578, 284 N.E.2d 266, 270; Victor v. Dehmlow (1950), 405 Ill. 249, 252-53, 90 N.E.2d 724, 726-27.) On the basis of the aforementioned case law, a trial court cannot invoke employers’ immunity sua sponte on behalf of an employer and then hold that the defense applies to said employer as a matter of law. None of the defendants in the present case pled or raised the affirmative defense of employers’ immunity. Accordingly, the trial court erred when it invoked employers’ immunity sua sponte on behalf of defendants and ruled that the company was immune from suit under the Structural Work Act pursuant to the Worker’s Compensation Act as a matter of law. See Smith v. Metropolitan Sanitary District (1979), 77 Ill. 2d 313, 319-21, 396 N.E.2d 524, 527-28.

Next, plaintiff contends that the trial court erred in granting summary judgment on the basis that there was a genuine issue of material fact as to the question of whether defendants were “in charge” of his work. We agree.

The trial court’s grant of summary judgment conflicts with the standards established by the Illinois Supreme Court and this court for determining when a defendant was “in charge” of a plaintiff’s work. The Illinois Supreme Court has treated the issue of whether a defendant was “in charge” of an injured plaintiff’s work as a question of fact, not a question of law. (Emberton v. State Farm Mutual Automobile Insurance Co. (1978), 71 Ill. 2d Ill, 123-24, 373 N.E.2d 1348, 1353; McNellis v. Combustion Engineering, Inc. (1974), 58 Ill. 2d 146, 151-52, 317 N.E.2d 573, 576.) In addition, this court has found in cases similar to the present case that injured workers have a cause of action under the Act. (American National Bank & Trust Co. v. National Advertising Co. (1990), 205 Ill. App. 3d 348, 352-54, 562 N.E.2d 1057, 1060-61; Brazier v. Kontos (1987), 160 Ill. App. 3d 177, 181-82, 513 N.E.2d 152, 155-56; Burke v. Illinois Power Co. (1978), 57 Ill. App. 3d 498, 515-16, 373 N.E.2d 1354, 1371.) We have found that “[i]t is axiomatic that the [Structural Work Act] is to be liberally construed in light of its purpose of protecting persons engaged in extrahazardous activities involving construction, repair, alteration or removal of structures.” (American National Bank & Trust Co., 205 Ill. App. 3d at 352, 562 N.E.2d at 1059-60.) On the basis of the above case law, we find that accidents involving workers who are knocked to the ground by the force of a crane while erecting elevated structures are within the contemplated hazards of the Act.

The question of whether defendants were “in charge” of plaintiff’s work in the present case is a disputed issue of material fact. Plaintiff maintains that defendants were “in charge” of his work since the president of Carol Stream Amusements admitted that defendants were responsible for overseeing the entire fair, and because the agreements implicitly required that each defendant share responsibility for controlling the ongoing work. Plaintiff, however, testified that he worked for Carol Stream Amusements.

Defendant Allstar argues that the trial court properly granted summary judgment because it was not “in charge” of plaintiff’s work since it neither had the right to control the operations of Carol Stream Amusements or defendant Astro, nor did it exercise control or supervision over said parties. Defendant Allstar also maintains that it did not have the right to control plaintiff because each company was solely responsible for its own employees, equipment and amusement rides. Defendant Allstar also maintains that it was not “in charge” of plaintiff’s work at the time of the accident because defendants acted as independent contractors in supplying the equipment, because each defendant retained individual responsibility for its own rides, its own employees, its own expenses, its own payroll and its own building permits and because none of the agreements gave any of the defendants a right to control any other defendant. Finally, defendant Allstar argues that it was not in charge of plaintiff’s work because it did not own the roller coaster from which he fell, or the crane or truck being used at the time of the accident.

The following factors are taken into consideration in determining whether a party is “in charge” of a complainant’s work: supervision and control of the work; retention of the right to supervise and control the work; constant participation in ongoing activities at the construction site; supervision and coordination of subcontractors; responsibility for taking safety precautions at the jobsite; authority to issue change orders; and the right to stop work. (Cutuk v. Hayes/Gallardo, Inc. (1991), 223 Ill. App. 3d 1097, 1100-01, 586 N.E.2d 357, 359; Chance v. City of Collinsville (1983), 112 Ill. App. 3d 6, 11, 445 N.E.2d 39, 42.) Other factors include ownership of the equipment used on the jobsite, defendant’s familiarity with construction customs and practices and whether defendant was in a position to assure worker safety or alleviate equipment deficiencies or improper work habits. Cutuk, 223 Ill. App. 3d at 1100-01, 586 N.E.2d at 359; Chance, 112 Ill. App. 3d at 11, 445 N.E.2d at 42.

Summary judgment is a drastic measure which may be granted only where the evidence, which must be strictly construed against the movant, establishes the movant’s clear right to relief. (American National Bank & Trust Co. v. National Advertising Co. (1990), 205 Ill. App. 3d 348, 354, 562 N.E.2d 1057, 1061.) Defendants have not established a clear legal right to summary judgment. We therefore find that the trial court erred when it found that as a matter of law defendants were not “in charge” of the work performed by plaintiff within the meaning of the Structural Work Act at the time he was injured.

Finally, defendant Allstar argues that it is entitled to summary judgment on count I on the basis that the roller coaster from which plaintiff fell was not an “other structure” within the meaning of the Structural Work Act (Act). The Act provides:

“§1. That all scaffolds, hoists, cranes, stays, ladders, supports, or other mechanical contrivances, erected or constructed by any person, firm or corporation in this State for the use in the erection, repairing, alteration, removal or painting of any house, building, bridge, viaduct, or other structure, shall be erected and constructed, in a safe, suitable and proper manner, and shall be so erected and constructed, placed and operated as to give proper and adequate protection to the life and limb of any person or persons employed or engaged thereon, *** and in such manner as to prevent the falling of any material that may be used or deposited thereon.” (Emphasis added.) (Ill. Rev. Stat. 1983, ch. 48, par. 60.)

The Act was enacted in order to protect workers engaged in work-related activities of a hazardous nature on or near a construction site. McNellis v. Combustion Engineering, Inc. (1974), 58 Ill. 2d 146, 151, 317 N.E.2d 573, 576; Vuletich v. United States Steel Corp. (1987), 117 Ill. 2d 417, 421-22, 512 N.E.2d 1223, 1224.

Illinois courts have addressed the question of whether a particular object from which a plaintiff-employee fell constituted an “other structure” within the meaning of the Act on several occasions. In Navlyt v. Kalinich (1972), 53 Ill. 2d 137, 138-39, 290 N.E.2d 219, 220, the Illinois Supreme Court held that the plaintiff’s deceased relative was killed while working upon a sewer system which constituted an other structure within the meaning of the Act, either by itself or on the basis that it was an integral part of the buildings being erected on the construction site. Later, in Farley v. Marion Power Shovel Co. (1975), 60 Ill. 2d 432, 436-37, 328 N.E.2d 318, 320, the Illinois Supreme Court ruled that a power shovel used for strip mining coal was not a structure within the meaning of the Act. In Brazier v. Kontos (1987), 160 Ill. App. 3d 177, 183, 513 N.E.2d 152, 156, we ruled that a shopping center sign was a structure within the meaning of the Act. This court has ruled that drilling rigs and oil wells, however, are not structures within the meaning of the Act. (Heil v. Superior Oil Co. (1989), 182 Ill. App. 3d 238, 242, 537 N.E.2d 1045, 1048; Bullistron v. Northern Builders, Inc. (1984), 127 Ill. App. 3d 242, 245-46, 468 N.E.2d 1281, 1283-84; Bishop v. Mitchell Group, Inc. (1987), 163 Ill. App. 3d 275, 278-79, 516 N.E.2d 969, 971.) Furthermore, this court has found that decorative lights strung between utility poles, and television cables and poles do not constitute other structures within the meaning of the Act. (Long v. City of New Boston (1982), 91 Ill. 2d 456, 466-67, 440 N.E.2d 625, 630; Burks v. Matrix Vision of Wilmette, Inc. (1988), 174 Ill. App. 3d 1086, 1089, 529 N.E.2d 642, 644.) In addition, we have ruled that an air compressor system located on an elevated concrete platform in an automotive service department was a structure within the meaning of the Act. (Innis v. Elmhurst Dodge, Inc. (1984), 126 Ill. App. 3d 690, 692-93, 467 N.E.2d 1002, 1003-04.) The question of whether a particular object constitutes an “other structure” within the meaning of the Act should be determined by a trier of fact on a case-by-case basis. Accordingly, the question of whether the roller coaster in the present case was an “other structure” within the meaning of the Act is an issue of material fact which cannot be determined as a matter of law. This issue should therefore be resolved by the trial court upon remand.

For the aforementioned reasons, we reverse the trial court’s grant of summary judgment and remand this cause for further proceedings in the trial court.

Reversed and remanded.

GREIMAN, P.J., and CERDA, J., concur.