author: JUSTICE LINDBERG

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DONALD D. WENDT, Defendant-Appellant.
    Second District
    No. 2—87—1203
    Opinion filed May 15, 1989.

      Andrew B. Spiegel, of Chicago, for appellant.
    Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Richard S. London and Terence M. Madsen, Assistant Attorneys General, of Chicago, of counsel), for the People.
   JUSTICE LINDBERG

delivered the opinion of the court:

Defendant, Donald D. Wendt, was charged with tax evasion (count I), perjury (count II), willfully failing to file an income tax return for the taxable year 1983 (count III), filing a fraudulent income tax return (count IV), and willfully failing to file an income tax return for the taxable year 1984 (count V) in an information filed in the circuit court of Boone County. (See Ill. Rev. Stat. 1983, ch. 38, par. 32 — 2; ch. 120, pars. 5 — 502, 13 — 1301; Ill. Rev. Stat. 1985, ch. 120, pars. 5— 502, 13 — 1301.) The State proceeded to trial on count V, willfully failing to file an income tax return for the taxable year 1984. A jury found defendant guilty of this offense, and he was sentenced by the court to 2V2 years of probation conditioned on payment of a $2,500 fine; performance of 400 hours of community service; payment of all income taxes, interest, and penalties due the State; and service of six months of work release. Defendant has appealed from his conviction.

Defendant raises seven issues. He argues that this case should have been dismissed because (1) count V of the information was insufficient because it failed to allege that defendant was subject to the State income tax and failed to “allege any section of the [Illinois Income Tax] Act [Ill. Rev. Stat. 1985, ch. 120, par. 1 — 101 et seq.] setting forth an offense”; (2) “the failure of the General Assembly to abide by the provisions of Article 4, §13 of the Illinois Constitution of 1870 [with respect to passage of the Illinois Income Tax Act] renders this prosecution void ab initio”; and (3) his “inherent right to work for a living is not a taxable privilege and therefore he was not subject to prosecution for any violation of the [Illinois Income Tax] Act.” He also argues that his conviction should be reversed because (4) he was denied a fair trial by improper remarks made by the prosecutor during the State’s opening statement and closing arguments; (5) the evidence was insufficient to prove beyond a reasonable doubt that defendant had willfully failed to file a 1984 income tax return; and (6) the jury was improperly instructed regarding willfulness, the Illinois Income Tax Act, and defendant’s defense. Finally, defendant argues that (7) the trial court erred in denying his motion in arrest of judgment.

In 1984, Chrysler Corporation paid $33,131.95 in wages to defendant for his work at Chrysler’s Belvidere assembly plant. No money was withheld to pay the Illinois income tax because defendant, who was an Illinois resident, had filed an Illinois W-4 form claiming to be exempt from withholding. Defendant testified that he filed an Illinois 1040 form for 1984 but that it was returned with a letter from the Illinois Department of Revenue (DOR) telling him to sign it and to send the DOR a copy of his W-2 form. Defendant responded with a letter stating that he would sign the Illinois 1040 form if Chrysler signed the W-2 form. The records of the DOR indicated defendant did not file an Illinois 1040 form for the taxable year 1984. Defendant’s primary defense was that the State failed to prove beyond a reasonable doubt that he acted willfully. In support of this defense, defendant presented evidence tending to show that, in reliance upon certain court opinions he read, articles interpreting the law and the United States Constitution he read, and speeches at certain seminars he attended, he had in good faith come to believe that he was not subject to the Illinois (and United States) income tax.

We will first consider defendant’s fifth and sixth issues. In his fifth issue, defendant contends that the evidence was insufficient to prove beyond a reasonable doubt that he acted willfully in failing to file his income tax return. Defendant contends:

“There was no evidence from which the jury could infer Wendt acted with a bad purpose or without grounds for believing his actions were lawful or with careless disregard for whether or not he had the right to act as he did. In short, they could not infer willfulness from the evidence adduced at trial.
*** The most the jury could reasonably infer from the evidence was that Wendt had a bona fide misunderstanding of the law. They could not infer a voluntary intentional violation of a known legal duty; that is the definition the [United States] Supreme Court has given to willfulness in the context of the tax statutes. [Citation.] A bona fide misunderstanding negates willfulness. [Citation.]
The evidence at trial showed Wendt honestly and sincerely believed that he was not subject to the income tax. *** There was no evidence from which the jury could reasonably infer a voluntary, intentional violation of any known legal duty.
The subjective state of mind of Wendt during 1984 was what was at issue. So long as he subjectively believed he was not subject to the tax, and so long as such belief was held in good faith, he was not willful and therefore not guilty. [Citations.]
The judgment below imposes criminal liability on an individual who in good faith misunderstood the law. The jury’s verdicts [sic] are contrary to the evidence that Wendt had a bona fide misunderstanding of the law.”

This argument displays a profound misunderstanding of both the mental state of willfulness and the mistake-of-law defense under Illinois law.

The offense of which defendant was convicted is defined in these terms:

“Any person who is subject to the provisions of this Act and who willfully fails to file a return *** shall, in addition to other penalties, be guilty of a Class 4 felony for the first offense and a Class 3 felony for each subsequent offense.” (Ill. Rev. Stat. 1985, ch. 120, par. 13-1301.)

In People v. Clay (1988), 167 Ill. App. 3d 628, 635-36, 521 N.E.2d 243, 249, we held that a violation of this statute is an “offense” as defined in section 2 — 12 of the Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, par. 2 — 12). Accordingly, we applied the provision of the Criminal Code concerning the mental state of “willfulness” to section 13 — 1301 of the Act (Ill. Rev. Stat. 1985, ch. 120, par. 13 — 1301). (People v. Clay (1988), 167 Ill. App. 3d 628, 636, 521 N.E.2d 243, 249.) The Criminal Code provides:

“Conduct performed knowingly or with knowledge is performed willfully, within the meaning of a statute using the latter term, unless the statute clearly requires another meaning.” (Ill. Rev. Stat. 1985, ch. 38, par. 4 — 5.)

Section 13 — 1301 of the Act does not clearly require another meaning, so defendant willfully failed to file his income tax return if he knowingly failed to file it. See Ill. Rev. Stat. 1985, ch. 38, par. 4 — 5; ch. 120, 13-1301; People v. Clay (1988), 167 Ill. App. 3d 628, 636, 521 N.E.2d 243, 249.

The statute defining the applicable mental state provides:

“A person knows, or acts knowingly or with knowledge of:
* * *
(b) The result of his conduct, described by the statute defining the offense, when he is consciously aware that such result is practically certain to be caused by his conduct.” (Ill. Rev. Stat. 1985, ch. 38, par. 4 — 5(b).)

Thus, to prove the mental element of the offense at bar, it was only necessary to prove that defendant was consciously aware that a failure to file his income tax return was practically certain to be caused by his conduct.

Section 4 — 3 of the Criminal Code provides:

“Knowledge that certain conduct constitutes an offense, or knowledge of the existence, meaning, or application of the statute defining an offense, is not an element of the offense unless the statute clearly defines it as such.” (Ill. Rev. Stat. 1985, ch. 38, par. 4 — 3(c).)

Section 4 — 8 of the Criminal Code provides:

“(a) A person’s ignorance or mistake as to a matter of either fact or law, except as provided in Section 4 — 3(c) above, is a defense if it negatives the existence of the mental state which the statute prescribes with respect to an element of the offense.
(b) A person’s reasonable belief that his conduct does not constitute an offense is a defense if:
(1) The offense is defined by an administrative regulation or order which is not known to him and has not been published or otherwise made reasonably available to him, and he could not have acquired such knowledge by the exercise of due diligence pursuant to facts known to him; or
(2) He acts in reliance upon a statute which later is determined to be invalid; or
(3) He acts in reliance upon an order or opinion of an lilinois Appellate or Supreme Court, or a United States appellate court later overruled or reversed; [sic]
(4) He acts in reliance upon an official interpretation of the statute, regulation or order defining the offense, made by a public officer or agency legally authorized to interpret such statute.” (Ill. Rev. Stat. 1985, ch. 38, pars. 4 — 8(a), (b).)

Under these statutes, defendant’s contentions with regard to the sufficiency of the evidence of willfulness are meritless.

• 2 Section 13 — 1301 of the Act does not clearly define the offense of willful failure to file a return as including as an element “[k]nowledge that certain conduct constitutes an offense, or knowledge of the existence, meaning, or application of” section 13 — 1301, so such knowledge is not an element of the offense of willful failure to file a return. (Ill. Rev. Stat. 1985, ch. 38, par. 4 — 3(c); ch. 120, par. 13 — 1301.) All of defendant’s contentions regarding the deficiencies of the evidence of willfulness really come down to one claim: that defendant believed he was complying with the law. Such a mistake is not a defense under section 4 — 8(a) of the Criminal Code for two separate reasons. First, such a belief falls squarely within the provisions of section 4 — 3(c) and so is not a defense under section 4 — 8(a). (Ill. Rev. Stat. 1985, ch. 38, pars. 4 — 3(c), 4 — 8(a).) Second, such a belief does not negative the existence of the mental state of the offense at bar, i.e., conscious awareness by defendant that a failure to file his return was practically certain to be caused by his conduct. (Ill. Rev. Stat. 1985, ch. 38, pars. 4 — 5(b), 4 — 8(a); ch. 120, par. 13 — 1301.) Such a mistake is also not a defense under section 4 — 8(b), since none of the four alternative conditions listed there existed. Ill. Rev. Stat. 1985, ch. 38, par. 4 — 8(b).

Thus, defendant’s contentions in his fifth issue that the evidence of willfulness was insufficient because it established that he believed he was not committing any offense are without merit. The ignorance or mistake of law claimed would not constitute a defense under section 4 — 8 of the Criminal Code. (Ill. Rev. Stat. 1985, ch. 38, pars. 4 — 8(a), (b).) Knowledge that his conduct constituted an offense or knowledge of the existence, meaning, or application of section 13— 1301 of the Act was not an element of the offense defined in section 13 — 1301. (Ill. Rev. Stat. 1985, ch. 38, par. 4 — 3(c); ch. 120, par. 13— 1301.) Accordingly, all the State was required to prove to establish the willfulness of defendant’s failure to file his return was that defendant was consciously aware that a failure to file his return was practically certain to be caused by his conduct. (Ill. Rev. Stat. 1985, ch. 38, par. 4 — 5(b); ch. 120, par. 13 — 1301.) Defendant’s contentions regarding his beliefs, even if true, would not affect the propriety of his conviction.

In his reply brief, apparently as an afterthought, defendant argues, as he did in the trial court, that the evidence was also insufficient to prove beyond a reasonable doubt that he failed to file his return. He bases this contention on his own testimony that he filed the return the first or second week of February 1985. The DOR returned it requesting that he sign it and send them a copy of his W-2 form. Defendant testified that he wrote back telling the DOR that he would sign his return if his employer signed the W-2 form.

Defendant presented no evidence to corroborate this testimony. Moreover, he ignores the redirect testimony of special agent Joanne Pflaum of the DOR, who checked the computer records of the DOR. She testified that those records indicated defendant had not filed a 1984 return, and her testimony in this regard was corroborated by a copy of the computer printout which was admitted as an exhibit. Since defendant did not ask Pflaum whether a return sent back to a taxpayer for a signature and a copy of a W-2 form would be recorded as filed in the DOR’s computer records, we can only assume that both defendant and Pflaum were using the term “filed” in the same sense.

The question of whether defendant filed his 1984 return was therefore a credibility question. The jury evidently believed Pflaum, rather than defendant, on this point, and we will not disturb that determination. People v. Akis (1976), 63 Ill. 2d 296, 298-99, 347 N.E.2d 733, 734-35 (“[I]t is the function of the trier of fact to determine the credibility of the witnesses, the weight to be given to their testimony and the inferences to be drawn from the evidence. [Citations.] Where the evidence is merely conflicting a court of review will not substitute its judgment for that of the trier of fact”).

In his argument on the sixth issue, defendant contends that the trial court erred by failing to give several jury instructions he requested. All of defendant’s tendered instructions were properly refused.

The rules regarding the giving of jury instructions are well settled:

“The sole function of instructions is to convey to the minds of the jury the correct principles of law applicable to the evidence submitted to it in order that, having determined the final state of facts from the evidence, the jury may, by the application of proper legal principles, arrive at a correct conclusion according to the law and the evidence.” (People v. Gambony (1948), 402 Ill. 74, 81-82, 83 N.E.2d 321, 325.)

(E.g., People v. Mitchell (1975), 27 Ill. App. 3d 117, 121, 327 N.E.2d 158, 161.) Accordingly, instructions which do not accurately state the law, or are misleading or confusing, should not be given. (People v. Dixon (1982), 105 Ill. App. 3d 340, 348, 434 N.E.2d 369, 376.) Moreover:

“[Wjhile the jury should be given instructions which embody the defendant’s legal theory of the case (Supreme Court Rule 451(a), 87 Ill. 2d 451(a)), that rule does not encompass instructions on erroneous or irrelevant theories.” (People v. Hunter (1984), 124 Ill. App. 3d 516, 542, 464 N.E.2d 659, 680.)

As to who has the burden with respect to instructing the jury:

“Generally, a party who desires a specific instruction must offer it and request the court to give it and the trial court has no obligation to instruct on its own motion. [Citations.] In criminal cases, however, this rule is modified in certain situations by the requirements of a fair trial. It has been held that a court bears the burden of seeing that the jury is instructed on the elements of the crime charged, on the presumption of innocence and on the question of burden of proof.” (People v. Parks (1976), 65 Ill. 2d 132, 137, 357 N.E.2d 487, 489.)

With respect to subjects to which the general rule applies:

“A defendant cannot complain of the failure of the court to instruct on a certain feature of the case where he has not requested a proper instruction on that feature. [Citations.] Also, an instruction which includes both a correct and an incorrect proposition of law *** is properly refused and the trial judge is under no obligation to rewrite the instruction tendered by defendant so that it would be proper.” People v. Baylor (1975), 25 Ill. App. 3d 1070, 1075, 324 N.E.2d 255, 259.

See People v. Moorelander (1962), 25 Ill. 2d 309, 312, 185 N.E.2d 166, 167-68.

There are nine instructions defendant claims should have been given. Defendant’s instruction No. 2 defined the word “felony.” (Ill. Rev. Stat. 1985, ch. 38, par. 2 — 7; Illinois Pattern Jury Instructions, Criminal, No. 4.04 (2d ed. 1981) (hereinafter IPI Criminal 2d).) A definition of the word “felony” was not necessary for the jury to determine whether defendant was guilty of the offense charged, and the trial court therefore did not err in refusing this instruction. Defendant’s instruction No. 5 defined “negligence.” (Ill. Rev. Stat. 1985, ch. 38, par. 4 — 7; IPI Criminal 2d No. 5.02.) There was no evidence from which negligence could be inferred, so this instruction was properly refused.

Defendant’s instruction No. 4 defined “willful,” and defendant’s instruction No. 6 set forth an ignorance or mistake defense. Both were based on defendant’s erroneous interpretation of the mental state of willfulness and of the ignorance or mistake-of-law defense. Accordingly, both contained misstatements of the law which made their refusal by the trial court proper.

Defendant’s instruction No. 7 defined “specific intent.” This instruction was also based upon defendant’s misinterpretation of the law regarding the mental state of the offense at issue. Moreover, an instruction defining specific intent was not necessary. Defendant’s instructions No. 9 (emphasizing that the case was a criminal case in which civil liability was not an issue), No. 12 (stating that “income” is not defined in the Internal Revenue Code and defining “gross income”), and No. 14 (instructing the jury as to what section 2 — 201 of the Illinois Income Thx Act (Ill. Rev. Stat. 1985, ch. 120, par. 2 — 201) provides) were all unnecessary for the jury to determine whether defendant was guilty of willful failure to file a return. (Ill. Rev. Stat. 1985, ch. 120, par. 13 — 1301.) The trial court therefore properly refused defendant’s instructions Nos. 7, 9,12, and 14.

Defendant’s instruction No. 8 stated:

“If the evidence in this case is susceptible of two constructions or interpretations, each of which appears to you to be reasonable, and one of which points to the guilt of the defendant and the other to his innocence, it is your duty under the law, to adopt that interpretation which will admit of the defendant’s innocence, and reject that which points to his guilt.”

This instruction was, in substance, an attempt to define reasonable doubt. (See People v. Bryant (1986), 113 Ill. 2d 497, 507-12, 499 N.E.2d 413, 418-20 (second paragraph of IPI Criminal 2d No. 3.02 that jury “should not find the defendant guilty unless the facts or circumstances proved exclude every reasonable theory of innocence” was, in substance, an attempt to define reasonable doubt).) As such, it was properly refused. (People v. Whittaker (1970), 45 Ill. 2d 491, 495-96, 259 N.E.2d 787, 789.) Thus, the issues raised by defendant regarding the jury instructions do not warrant reversal.

Defendant next argues that the count of the information charging the offense of which he was convicted was deficient in two respects. It did not set forth the section of the Illinois Income Tax Act (the Act) alleged to have been violated (Ill. Rev. Stat. 1985, ch. 38, pars. Ill— 3(aX2), 114 — 1(a)(8); see Ill. Rev. Stat. 1985, ch. 120, par. 13-1301) and it did not allege that defendant was a person subject to the provisions of the Act (Ill. Rev. Stat. 1985, ch. 120, par. 13 — 1301).

It is first necessary to determine whether these contentions were raised in the trial court, since that will affect the standard of our review of the charge. (Compare People v. Pujoue (1975), 61 Ill. 2d 335, 339, 335 N.E.2d 437, 440, with People v. Lutz (1978), 73 Ill. 2d 204, 383 N.E.2d 171.) Defendant was tried for the offense stated in count V of the information filed on May 23,1986.

Defendant argues that “[i]n his pro-se ‘Motion to Dismiss,’ filed May 16, 1986, Wendt argued he was not subject to the Act.” This, of course, was not a challenge to the sufficiency of count V of the information, which was filed a week later. It is, furthermore, not a claim that the charge does not allege he was subject to the Act but rather the very different claim that defendant, in fact, was not subject to the Act. Neither this argument in the trial court, nor any of the other more general contentions defendant made there, properly raised the issue of whether the charge was insufficient by failing to allege that defendant was a person subject to the provisions of the Act.

In support of his claim that the other contention made in his first issue was raised in the trial court, defendant quotes from a reply brief in support of a motion to dismiss the information filed by counsel. The document quoted is not in the record at the location cited, and we did not find it elsewhere in the record, so we would be justified in ignoring this argument. Moreover, defendant quotes the reply brief as saying:

“... Furthermore, counts III and IV must be dismissed as a matter of law because the section relied upon in those counts does not define any offense. Therefore, they fail to allege any criminal offense as a matter of law.” (Ellipsis in original.) (Emphasis added.)

Obviously, even if this appeared in the record it would not be sufficient to raise the issue now raised on appeal because it did not concern the count of the information charging the offense of which defendant was convicted (i.e., count V).

Since the contentions made on appeal were not made in the trial court, those challenges are made for the first time on appeal and count V:

“[I]s sufficient if it apprised the accused of the precise offense charged with sufficient specificity to prepare his defense and allow pleading a resulting conviction as a bar to future prosecution arising out of the same conduct. [Citations.]” (People v. Pujoue (1975), 61 Ill. 2d 335, 339, 335 N.E.2d 437, 440.)

Count V alleged:

“That on April 16, 1985, in the [s-ic] Boone County, Illinois, DONALD D. WENDT committed the offense of WILLFULLY FAILING TO FILE AN INCOME TAX RETURN in that he was a resident of the State of Illinois in 1984, and was required to file a Federal Income Tax Return for that year, and that he willfully failed to file an Illinois State Income Tax Return for the taxable year 1984. [sic] in violation of Chapter 120, Section 5 — 502, Illinois Revised Statutes[.]”

(See Ill. Rev. Stat. 1985, ch. 120, par. 13 — 1301.) This charge was sufficient to apprise defendant of the offense charged “with sufficient specificity to prepare his defense and allow pleading a resulting conviction as a bar to future prosecution arising out of the same conduct.” (People v. Pujoue (1975), 61 Ill. 2d 335, 339, 335 N.E.2d 437, 440.) Count V is therefore sufficient to withstand the attacks in defendant’s first issue.

In his second argument defendant contends that the Act never became law because:

“[T]he Senate did not read the proposed bill on three separate days and did not print the final bill and its amendments prior to passage. The House never conducted a first reading and also failed to print the final bill and its amendments prior to voting on it.”

A similar issue was rejected in Durjak v. Thompson (1986), 144 Ill. App. 3d 594, 494 N.E.2d 589. Contrary to defendant’s arguments on this issue, we believe that Durjak was correctly decided and controls the issue at bar.

In his fourth argument, defendant contends that he is entitled to a new trial because of improper and prejudicial remarks by the prosecutor. We disagree.

Although raised as a prejudicial-argument-of-the-prosecutor issue, defendant initially contends that the jury was tainted “before the first scintilla of evidence was even introduced” by statements made during voir dire by a prospective juror and by the trial court, which described willfulness as “ ‘a voluntary decision on [defendant’s] part not to pay something he was supposed to pay.’ ” The prospective juror was excused for cause, and defendant did not raise the issue of whether the other prospective jurors had been tainted at the time of the remarks. He also made no objection to the remarks of the trial judge he now contends tainted the jury. Moreover, neither the remarks of the prospective juror nor the remarks of the trial court were ‘ raised as errors in defendant’s post-trial motions. Accordingly, these arguments have been waived and will not be considered. See People v. Jackson (1981), 84 Ill. 2d 350, 358-59, 418 N.E.2d 739, 743.

Defendant argues that in this case, where the only charge being tried was willful failure to file a return, it was improper for the prosecutor to make remarks about his failure to pay income taxes. In context, the prosecutor’s remarks on this subject were to the effect that defendant had failed to file a return in order to avoid paying taxes. These were proper as comments on defendant’s motive for failing to file a return. E.g., People v. Huckstead (1982), 91 Ill. 2d 536, 548, 440 N.E.2d 1248, 1253; People v. Bunting (1982), 104 Ill. App. 3d 291, 296, 432 N.E.2d 950, 954.

Defendant also contends that he was prejudiced by the following remark made by the prosecutor during closing argument:

“Now, I’m not saying that our tax laws are perfect. But Donald Wendt decided he didn’t like our tax laws and so he decided that those laws didn’t apply to him. When he did that, ladies and gentlemen, he cheated not only you and me but he cheated every other honest taxpayer in the state of Illinois who every April 15 digs down deep and provides their fair share.”

The trial court ruled, sua sponte, that this was improper argument. The court had a conference with counsel at which defense counsel, in an apparent attempt to keep all of his options open, “request[ed] at a minimum [the jury] be given a cautionary instruction.” The court did so, telling the jury:

“There’s one comment that [the prosecutor] made which I’m sure was inadvertent. He made some comment that by doing what he did the defendant was cheating us or the defendant was cheating you. And I want to make it clear that you’re not to put yourself in the position of anything other than an impartial judge of the facts. You’re not to consider yourself a potential victim of something. You’re simply — I’m the judge of the law, you’re the judge of facts, and all of us are to be impartial in weighing this, and neither sympathy nor prejudice should influence you one way or the other.”

This admonition was sufficient to correct any error in the prosecutor’s remark. (People v. Morgan (1986), 112 Ill. 2d 111, 135, 492 N.E.2d 1303, 1312; People v. Carlson (1980), 79 Ill. 2d 564, 577, 404 N.E.2d 233, 238-39.) That being true, it is unnecessary to decide whether defendant waived the issue of this remark’s propriety or whether the remark was improper, two subjects on which the parties differ.

In his third issue, defendant argues that the action should have been dismissed, and in his seventh issue defendant argues that a motion in arrest of judgment should have been granted. In both issues, he contends that his wages are not income under the State and Federal Constitutions. He argues that his wages were received for exercising his right to earn a living by working and that this right is not a taxable privilege. He argues that income means only corporate profit. These and similar contentions have been rejected in numerous Federal cases, including one litigated by the same attorney representing defendant. (See, e.g., Coleman v. Commissioner of Internal Revenue (7th Cir. 1986), 791 F.2d 68, 70 (“The code imposes a tax on all income. [Citation.] Wages are income, and the tax on wages is constitutional”); Lovell v. United States (7th Cir. 1984), 755 F.2d 517, 519 (“All individuals, natural or unnatural, must pay federal income tax on their wages, regardless of whether they received any ‘privileges’ from the government. *** [Plaintiffs’ assertion that money received in compensation for labor is not taxable has been rejected by numerous courts”); United States v. Latham (7th Cir. 1985), 754 F.2d 747, 750 (“Latham contends that the district court improperly refused his instruction defining ‘income’ as distinct from ‘gross income.’ This instruction was intended to enforce his claim that he in good faith believed that wages are not income for taxation purposes ***. *** [A] claim of this nature is without merit. [Citation.] Latham’s wages were and are income; thus, his proposed jury instruction was a misstatement of the law and the district court properly refused to adopt the same in the instructions”); United States v. Koliboski (7th Cir. 1984), 732 F.2d 1328, 1329 n.l (“Although not raised in his brief on appeal, the defendant’s entire case at trial rested on his claim that he in good faith believed that wages are not income for taxation purposes. Whatever his mental state, he, of course, was wrong, as all of us already are aware. Nonetheless, the defendant still insists that no case holds that wages are income. Let us now put that to rest: WAGES ARE INCOME. Any reading of tax cases by would-be tax protestors now should preclude a claim of good-faith belief that wages — or salaries— are not taxable”).) We rejected a similar argument under the Act in the context of instructions in People v. Clay (1988), 167 Ill. App. 3d 628, 636-37, 521 N.E.2d 243, 249-50.

Defendant also argues in these issues that section:

“2 — 203(d)(2) [of the Illinois Income Tax Act] limits the phrase ‘taxable income,’ to income properly reportable for federal income tax purposes by certain specified insurance companies, corporations and investment trusts. It does not include individuals in its terms.”

This, too, is frivolous. Defendant apparently refers to section 2— 203(e)(2) of the Act (Ill. Rev. Stat. 1985, ch. 120, par. 2-203(e)(2)). (Compare Ill. Rev. Stat. 1985, ch. 120, par. 2 — 203(d)(2), with Ill. Rev. Stat. 1985, ch. 120, par. 2 — 203(e)(2).) What he has done is ignore the general provision of section 2 — 203(e)(1), examine solely the special rules set forth in section 2 — 203(e)(2), and conclude that since there is no rule in section 2 — 203(e)(2) applicable to individuals, individuals cannot earn taxable income. (Ill. Rev. Stat. 1985, ch. 120, pars. 2— 203(e)(1), (e)(2).) This is obviously absurd.

In defendant’s seventh issue, he adds his contention that the process by which the sixteenth amendment to the United States Constitution was ratified was “fatally flawed.” Based on the statement in the initial brief, we would be justified in holding this issue waived for failure to argue it or cite authority. (107 Ill. 2d R. 341(e)(7).) In addition, the argument, developed in the reply brief, is frivolous. Federal courts have held that (1) the question is a nonjusticiable political question and (2) the sixteenth amendment was properly ratified so as to become part of the U.S. Constitution. See, e.g., United States v. Foster (7th Cir. 1986), 789 F.2d 457, 463 n.6; United States v. Thomas (N.D. Ill. 1985), 611 F. Supp. 881, 883-84; United States v. Wojtas (N.D. Ill. 1985), 611F. Supp. 118.

Moreover, the basis on which, prior to the sixteenth amendment, the United States Supreme Court had held that the income tax law then enacted was unconstitutional was that the law taxed income from property, that taxation of the income was the same as taxation of the property itself, that taxation of the property constituted a direct tax, and that the tax was unconstitutional as a direct tax because it was not apportioned among the States. (U.S. Const., art. I, §9; Pollock v. Farmers’ Loan & Trust Co. (1895), 157 U.S. 429, 39 L. Ed. 759, 15 S. Ct. 673; Pollock v. Farmers’ Loan & Trust Co. (1895), 158 U.S. 601, 39 L. Ed. 1108,15 S. Ct. 912.) According to one treatise:

“Forty-two years later, with its decision in New York ex rel. Cohn v. Graves, [(1937), 300 U.S. 308, 81 L. Ed. 666, 57 S. Ct. 466,] the Court in effect overruled Pollock and in so doing rendered the Sixteenth Amendment redundant.” (R. Rotunda, J. Nowak, & J. Young, Treatise on Constitutional Law: Substance and Procedure §5.2 (1986).)

Also, Pollock did not affect the propriety of taxing wages. In fact, the Pollock court stated:

“We have considered the act only in respect of the tax on income derived from real estate, and from invested personal property, and have not commented on so much of it as bears on gains or profits from business, privileges, or employments, in view of the instances in which taxation on business, privileges, or employments, has assumed the guise of an excise tax and been sustained as such.” (Pollock v. Farmers’ Loan & Trust Co. (1895), 158 U.S. 601, 635, 39 L. Ed. 1108, 1125, 15 S. Ct. 912, 920.)

It, therefore, appears that even if defendant were correct and the sixteenth amendment was improperly ratified and so not part of the United States Constitution, the income tax on his wages would be proper because (1) the sixteenth amendment is redundant and so does not affect the propriety of the tax and (2) even under Pollock, the income tax on defendant’s wages would pass constitutional muster.

The judgment of the circuit court is affirmed.

Affirmed.

McLaren and WOODWARD, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE UNVERZAGT

license: Public Domain

text:
    THOMAS DOYLE et al., Plaintiffs-Appellees, v. THE CITY OF CRYSTAL LAKE et al., Defendants-Appellants.
    Second District
    No. 2—88—0701
    Opinion filed May 19, 1989.

      John L. Cowlin and Michael F. Kukla, both of Cowlin, Ungvarsky, Kukla & Curran, of Crystal Lake, and Henry E. Mueller of Ancel, Clink, Diamond, Murphy & Cope, P.C., of Chicago, for appellants.
    James F. Bishop, of Bishop, Callas & Wagner, of Crystal Lake, for appellees.
   PRESIDING JUSTICE UNVERZAGT

delivered the opinion of the court:

Plaintiffs are residents and taxpayers of the City of Crystal Lake, Illinois. Plaintiffs sought administrative review of the decision of the City of Crystal Lake Zoning Board of Appeals (Zoning Board) finding that plaintiffs had not timely appealed a purportedly final determination of the Zoning Administrator (Administrator). The Administrator had found that the Crystal Lake Park District’s proposed construction of a maintenance garage would be a permitted use within the city’s zoning scheme for RE-1 residential areas. The Administrator’s determination was in the form of an interoffice memorandum to the city manager dated July 21, 1987. The memorandum further advised that other normal procedures must also be followed in order to receive a development permit under the flood-plain ordinance. Plaintiffs filed their appeal to the Zoning Board on May 2, 1988, which was within 45 days of the issuance of the building permit for the garage (issued April 28, 1988); plaintiffs asserted that they had no prior notice of the actions of the Administrator. The Zoning Board concluded that the plaintiffs’ appeal was not timely because it was brought more than 45 days after the Administrator’s decision of July 21, 1987, as required by section 11 — 13—12 of the Illinois Municipal Code (Code) (Ill. Rev. Stat. 1987, ch. 24, par. 11 — 13—12).

Plaintiffs sought administrative review in the circuit court. On June 21, 1988, the circuit court found that the Administrator’s memorandum of July 21, 1987, was not a final determination of the Administrator and therefore plaintiffs’ appeal on May 2, 1988, was timely filed. The circuit court further ordered that its stay preventing construction should continue until the Zoning Board rendered a final decision pursuant to the procedures established by the City of Crystal Lake Zoning Ordinance. In effect, the circuit court remanded the case for further proceedings. Defendants timely appealed. Finding that the judgment of the circuit court is not final, we dismiss the appeal.

Defendants raise essentially two contentions on appeal: (1) the trial court’s determination that the plaintiffs’ appeal to the Zoning Board was timely filed was against the manifest weight of the evidence; and (2) the trial court erred in permitting certain testimony outside the scope of review afforded by section 3 — 110 of the Administrative Review Law (Ill. Rev. Stat. 1987, ch. 110, par. 3 — 110).

Initially, we note that defendants have failed to include a jurisdictional statement in their brief in contravention of Supreme Court Rule 341(e)(4)(ii) (122 Ill. 2d R. 341(e)(4)(ii)). Additionally, the record appears to be incomplete, contrary to Rule 323(a) (107 Ill. 2d R. 323(a)). The trial court apparently scheduled a hearing on the merits of this case for June 21, 1988, and issued its decision and order on that date; however, defendants have provided no report of the proceedings for that date. The failure to follow those rules can result in the refusal of the court to consider the merits of the appeal or to dismiss the case. (McKanna v. Duo-Fast Corp. (1987), 161 Ill. App. 3d 518, 524; Lindenmier v. City of Rockford (1987), 156 Ill. App. 3d 76, 79.) In addition, plaintiffs have not filed an appellees’ brief. We thus limit our consideration of this appeal to the parameters established in First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128.

We choose not to address the merits of defendants’ appellate contentions except to the extent that they affect our jurisdiction of the case. We perceive the thrust of defendants’ argument as questioning the jurisdiction of the Zoning Board to hear the appeal in the first instance; this in turn affects the validity of the circuit court’s subsequent decision on that issue and, ultimately, our jurisdiction. We recognize that jurisdiction can be attacked at any time or in any court, either directly or collaterally. (City of Chicago v. Fair Employment Practices Comm’n (1976), 65 Ill. 2d 108, 112.) The trial court found plaintiffs’ appeal to be timely because the Administrator’s memorandum was not a final determination We agree with the trial court that the Board could hear plaintiffs’ appeal within 45 days of the issuance of the building permit. The memorandum in question reads in pertinent part:

“TO: Joseph Misurelli, City Manager
FROM: Bill Ganek, Zoning Administrator
DATE: July 21, 1987
SUBJECT: Zoning Interpretation for Park District
Maintenance Garage
This memo is in- response to a letter from Michael T. Caldwell, regarding the Crystal Lake Park District Maintenance Garage. As Zoning Administrator, I am responsible for the interpretation of the Zoning Ordinance. After review of the Crystal Lake Zoning Ordinance, I would agree with Mr. Caldwell’s opinion for the following reasons:
1. A park is a permitted use in a ‘RE-1’ Zoning District (See Table 2 — Uses Permitted in Zoning Districts).
2. A maintenance garage including its associated activities would be classified as an accessory structure and accessory use to the use of the property as a park under Section 3 (definitions) of the Crystal Lake Zoning Ordinance and would be considered a permitted use.
While it would appear that an addition to the maintenance garage would be permitted under the Zoning Ordinance, the normal review procedures must be followed by the Park District to receive a ‘Development Permit’ under the Flood Plain Ordinance. Once a topographic map is prepared for the property, Staff would be better informed to assess what impact, if any, the addition would have on the flood plain.
Should you have any questions, please let me know.
BG/shd
cc: John Cowlin, City Attorney
Ken Smith, Building Director”

It is clear that the memorandum was advisory and tentative in nature and that the Park District had further steps to take before it could be said that an aggrieved party should be required to intervene or appeal. Moreover, the memorandum does not appear to be of record and fails to give notice, constructive or otherwise, to any potentially aggrieved parties. Section 11 — 13—12 of the Code states in pertinent part:

“An appeal to the board of appeals may be taken by any person aggrieved or by any officer, department, board, or bureau of the municipality. The appeal shall be taken within 45 days of the action complained of by filing, with the officer from whom the appeal is taken and with the board of appeals a notice of appeal, specifying the grounds thereof. The officer from whom the appeal is taken shall forthwith transmit to the board all the papers constituting the record upon which the action appealed from was taken.” Ill. Rev. Stat. 1987, ch. 24, par. 11 — 13—12.

We fail to see how an internal action of the municipality in this case, unknown to any potentially interested parties, should trigger the running of the 45-day appeal period. It is clear that a person cannot be aggrieved until he has some actual or constructive knowledge of the action complained of or suffers some injury in fact. While we have found no Illinois case directly on point, Bull v. American National Bank & Trust Co. (1969), 112 Ill. App. 2d 32, is instructive by analogy. There, a plaintiff was adversely affected by defendant applicant’s use of an irregular procedure to secure a building permit. The zoning administrator initially denied defendant’s application for a zoning variation, and defendant appealed to the zoning board of appeals. While the appeal was pending and without notice to either the board or to the plaintiff, defendant applied to the zoning administrator a second time, and the second request was allowed. Defendant then commenced construction of a building based on the approval of the second application. However, unaware of these developments, the zoning board affirmed the initial decision denying the zoning variation; defendant ignored that decision. Plaintiff noticed the permit issued pursuant to the second application when the permit was posted at the construction site and sued to enjoin construction. Plaintiff filed her complaint 40 days after the permit was posted at the building site.

Plaintiff could have appealed but failed to appeal the second decision of the zoning board within the 30 days provided by the rules of the zoning board then in effect. Plaintiff instead chose to obtain relief under section 11 — 13—15 of the Code (Ill. Rev. Stat. 1967, ch. 24, par. 11 — 13—15), whose provisions were intended to prevent zoning violations. The reviewing court found that plaintiff’s complaint was filed within a reasonable time after learning of the violation. The reviewing court also found that plaintiff’s choice of a remedy was appropriate under the circumstances and that she was an aggrieved party whose predicament was caused by defendant’s use of an irregular procedure. Her predicament was aggravated by defendant’s failure to notify plaintiff of the second application. The court found that plaintiff was not at fault; she could not object to a permit of which she had no knowledge and where there was no reason to examine the public records. Bull, 112 Ill. App. 2d at 38.

Similarly, in this case, plaintiffs could not object to the propriety of a zoning determination which was merely advisory, which was promulgated by interoffice memorandum within the municipal government, which was unknown to the complaining parties, and which required further steps before it would become an action that would aggrieve the plaintiffs. Here, the only “action” that could have aggrieved plaintiffs was the issuance of the permit authorizing construction. We conclude that the Zoning Board could have and should have heard plaintiffs’ appeal filed on May 2, 1988, in view of the apparently irregular procedure used to secure the building permit.

Having determined that the Zoning Board had jurisdiction to hear plaintiffs’ appeal, we next consider whether the trial court’s order is final and appealable for the purposes of appellate review. We have a duty to inquire into our jurisdiction and to dismiss an appeal if jurisdiction is wanting. Archer Daniels Midland Co. v. Barth (1984), 103 Ill. 2d 536, 539.

This court has stated that “a circuit court order remanding a cause to the administrative agency for further hearings or proceedings has been held to be a non-appealable interlocutory order,” and the general rule is that “when an administrative decision is reversed, vacated, or remanded, the case stands as if no decision had ever been made.” Jones v. Board of Fire & Police Commissioners (1984), 127 Ill. App. 3d 793, 801.

When a reviewing court remands for further proceedings involving disputed questions of law or fact, the judgment of the reviewing court is not final. (Wilkey v. Illinois Racing Board (1983), 96 Ill. 2d 245, 249.) In such a case, upon remand of a cause to an agency for further proceedings, jurisdiction must necessarily remain with the circuit court until after disposition of those matters; only when the circuit court has examined the results of these additional proceedings will we recognize its subsequent order as being final and appealable. Mitrenga v. Martin (1982), 110 Ill. App. 3d 1006,1008.

The ultimate question is whether the order fully and finally disposed of the rights of the parties so that no material, controverted issue remains to be determined. (Wilkey, 96 Ill. 2d at 249.) In the present case, the trial court effectively remanded the case to the Zoning Board for a final decision on plaintiffs’ appeal and ordered that the stay of construction continue until a final decision was issued. Because the court reversed and remanded the case for further action, we cannot assume that the Zoning Administrator’s advice will prevail or that a valid building permit will issue. Thus, the rights of the parties are not finally adjudicated. Additionally, the circuit court must have an opportunity to review any action taken by the Zoning Board before appellate jurisdiction can be conferred on this court. Mitrenga, 110 Ill. App. 3d at 1008.

Accordingly, we must dismiss the appeal.

Appeal dismissed.

REINHARD and NASH, JJ., concur.


author: JUSTICE DUNN

text:
    POLO NATIONAL BANK, Plaintiff-Appellant, v. DAVID W. LESTER et al., Defendants-Appellees.
    Second District
    No. 2—88—0715
    Opinion filed May 19, 1989.

      Craig E. McGuire, of Polo, for appellant.
    Gregory H. Clark, of Rockford, for appellees.
   JUSTICE DUNN

delivered the opinion of the court:

Plaintiff, Polo National Bank, filed suit against David and Linda Lester for $5,286.94 allegedly owed on a $23,000 promissory note. The trial court found for defendants, ruling that a release of trust deed executed by Polo National Bank released the total amount owed on the note. Plaintiff appeals, contending that the release of the trust deed released only the security and not the note. For the reasons stated below, we reverse.

The Lesters executed a promissory note to Polo National Bank for $23,000. As security for the note, the Lesters executed a second mortgage on their, residence in the form of a trust deed. Subsequently, the residence was sold, and Polo National Bank received $19,105.25 to apply to the $23,000 note. Prior to the closing on the house, Polo National Bank also executed and delivered a release of trust deed on the property. The release stated in relevant part:

“The party secured in and by a certain trust deed executed by
* * *
do hereby acknowledge receipt of full payment and satisfaction of the moneys secured in and by said document, and in consideration thereof do hereby FOREVER release and discharge the same, and quit claim all right and interest to and in the premises therein described or conveyed, for a description whereof reference may be had to said document or said record thereof. Said trust deed was made to secure one or more promissory notes bearing even date therewith aggregating the sum of Twenty-three thousand and 00/100 *** Dollars. I further certify that said note or notes has or have been presented to me with satisfactory evidence that the same, with interest due thereon, has or have been fully paid and cancelled.”

After Polo National Bank received $19,105.25 from the house sale, it notified defendants in writing that they still owed $5,286.94 on the note. Plaintiff sent defendants four written notices. In the third notice, plaintiff asked defendants to bring their obligation to current status and requested that defendants make a payment of at least $185.45 to pay off the interest. Plaintiff also asked defendants to deliver title of their Cadillac as collateral for the amount owed. Two weeks after this notice was sent, David Lester made a cash payment of $185.45.

At trial, David Lester testified it was his understanding that the bank’s receipt of the proceeds from the house sale would settle the obligation owed on the note. He stated that this was what his real estate agent told him. He also said he was never told by anyone at Polo National Bank that he would have to pay for a deficiency that resulted from the house sale. As for the $185.45 payment he made after the house sale, Lester explained that he made that payment under the belief that he owed this amount on a different loan with Polo National Bank. Lester admitted that the normal payment on this different loan was $368.19, but he stated that he believed the $185.45 was an interest payment he owed on that loan.

Doug Harper testified he handled defendants’ account at Polo National Bank. He stated the bank never intended to release the total amount due on the note in executing the release of trust deed; it only intended to release the security. The bank still possessed the note, which had never been canceled. Harper stated he talked with David Lester before the house closing, and they talked about working together to pay off the amount defendants would owe after closing. When the trial court asked Harper if he ever told defendants before the house was sold that they would be responsible for a deficiency, Harper replied that he felt he did, but he could not recall a specific conversation or date of conversation.

The trial court held the trust deed release operated as a complete release of the note. The court found the parol evidence rule applied to the release and determined that two exceptions to the rule were not present; the release was not ambiguous and there was no evidence of mutual mistake. The court then stated that it could consider parol evidence where the document did not state the true intent of the parties. The court concluded that the extrinsic evidence did not support plaintiff’s position that it did not intend to release defendants’ obligation on the note.

Plaintiff contends the trial court erred in finding that the trust deed release also operated to release the note. The general standard of review in a case where the evidence consists mainly of documents is that the court is not bound by the trial court’s finding and may make an independent determination on the facts. (Howard A. Koop & Associates v. KPK Corp. (1983), 119 Ill. App. 3d 391, 398.) Where, however, extrinsic evidence is introduced to aid the interpreting of a contract, the determination of the trial court will not be reversed unless it is contrary to the manifest weight of the evidence. Howard A. Koop & Associates, 119 Ill. App. 3d at 398.

In this case, the trial court properly found that the parol evidence rule applied to the release. A release is a contract wherein a party abandons a claim to a person against whom the claim exists. (Shultz v. Delta-Rail Corp. (1987), 156 Ill. App. 3d 1, 10; Costa v. Stephens-Adamson, Inc. (1986), 142 Ill. App. 3d 798, 800.) Therefore, its construction is governed by the rules of law for contracts, specifically in this case, the parol evidence rule. (Shultz v. Delta-Rail Corp. (1987), 156 Ill. App. 3d 1, 10; Ainsworth Corp. v. Cenco, Inc. (1982), 107 Ill. App. 3d 435, 439.) After finding that the parol evidence rule applied to this case, the trial court considered the extrinsic evidence presented by the parties, stating that an exception to the parol evidence rule exists where the document fails to exhibit the true intent of the parties.

The trial court’s basis for considering parol evidence was improper. There is no exception to the parol evidence rule that allows a court to consider parol evidence merely because there is an assertion that the document does not exhibit the intent of the parties. The court must first find that a document is ambiguous before it may consider extrinsic evidence to resolve the parties’ intent. Where no ambiguity is presented, the meaning of the agreement and the intention of the parties must be asertained from the words of the document. (Shultz v. Delta-Rail Corp., 156 Ill. App. 3d at 10; Murphy v. S-M Delaware, Inc. (1981), 95 Ill. App. 3d 562, 565.) The trial court found in this case, and we agree, that the release is not ambiguous. We find, however, that extrinsic evidence was properly introduced and considered, though for a reason other than the one enunciated by the trial court. Extrinsic evidence is permissible to show that the recital of consideration in a deed or other like document contract is not the actual consideration. (Wright v. Buchanan (1919), 287 Ill. 468, 478; First United Presbyterian Church v. Christenson (1975), 33 Ill. App. 3d 928, 935, rev’d on other grounds (1976), 64 Ill. 2d 491.) The exception may be invoked provided that such showing does not change or defeat the legal operation and effect of the document. First United Presbyterian Church, 33 Ill. App. 3d at 935.

In this case, the trust deed release states that the trustee acknowledges full payment and cancellation of the note. This statement is a recital of the consideration for release of the trust deed. It is proper to consider extrinsic evidence to determine whether the consideration recited is the actual consideration so long as this does not defeat the legal operation of the release. Since Polo National Bank does not contest the validity of the release, extrinsic evidence may be considered. The evidence is uncontroverted that Polo National Bank did not receive full payment on the $23,000 note as recited in the release. There is no dispute that the proceeds from the house sale which plaintiff received amounted to only $19,105.25. The evidence also showed conclusively that Polo National Bank still possessed the note, which was signed by defendant, and it had not been marked canceled. Thus, the actual consideration for the trust deed release was $19,105.25, not the full payment and cancellation of the note as recited in the release.

Under section 3 — 307 of the Uniform Commercial Code (UCC), when the signature on a note is admitted or established, production of the instrument entitles a holder to recover unless the defendant establishes a defense. (Ill. Rev. Stat. 1987, ch. 26, par. 3— 307(2); Tuttle v. Rose (1981), 102 Ill. App. 3d 865, 867.) Defendant has the burden of establishing any defense, including payment, by a preponderance of the evidence. Ill. Ann. Stat., ch. 26, par. 3 — 307, comment at 204; par. 3 — 603, comment at 396 (Smith-Hurd 1963); Tuttle, 102 Ill. App. 3d at 867.

Defendants contended the trust deed release conclusively established that the note was released by plaintiff. Section 3 — 605 of the UCC provides that a holder of a note may discharge the debtor by renouncing his rights by a writing signed and delivered. (Ill. Rev. Stat. 1987, ch. 26, par. 3 — 605(l)(b).) In our opinion, the trust deed release fails to prove by a preponderance of the evidence that Polo National Bank discharged the total amount owed on the note. The trust deed release does not state that the obligation on the note is discharged or released. It states that the security, the trust deed, is released. The recital in the release that the trustee acknowledged full payment and satisfaction on the note does not release the note. As already discussed, the recital of consideration may be disproved by extrinsic evidence, and the evidence is undisputed that plaintiff did not receive full payment.

We do not believe defendants have proved by a preponderance of the evidence that plaintiff discharged the note in consideration of the $19,105.25 it received from the house sale. Not only does the release not prove this, but the extrinsic evidence introduced also fails to prove this contention. Doug Harper, who handled defendants’ account for Polo National Bank, testified that the bank did not intend to release the note when it executed the trust deed release. Plaintiff produced four letters sent to defendants after the house sale which demanded payment on the deficiency. Harper also testified that he talked with defendants about the fact that the house sale would not cover the total amount owed on the note, and he told them that they would work together to get it paid off.

Defendant David Lester denied he was ever told this by anyone from Polo National Bank; however, he also was very unclear about whether he was told that he would not be responsible for a deficiency. He stated his real estate agent told him something to this effect, but he did not state that Harper ever made this statement to him. David Lester stated he believed his debt was canceled after the sale of his house, but the evidence showed that he made an interest payment on the note after the house sale. He made a payment of $185.45 after he received his third letter from Polo National Bank telling him he must bring this loan current and make at least a minimum payment of $185.45. Though Lester stated that he believed he was paying an interest payment on a different loan, we find this explanation implausible since the letter clearly stated which loan was concerned.

We find that plaintiff released only the trust deed in consideration of the $19,105.25. The trial court’s decision that the trust deed release discharged the note is against the manifest weight of the evidence. The decision of the circuit court of Ogle County is therefore reversed, and this cause is remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

UNVERZAGT, P.J., and McLAREN, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Respondent-Appellee, v. GEORGE PHILLIPS, Petitioner-Appellant.
    Second District
    No. 2—87—0752
    Opinion filed May 25, 1989.

      G. Joseph Weller and Kim M. DeWitt, both of State Appellate Defender’s Office, of Elgin, for appellant.
    James E. Ryan, State’s Attorney, of Wheaton (William L. Browers and Marshall M. Stevens, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE LINDBERG

delivered the opinion of the court:

Petitioner, George Phillips, appeals from an order of the circuit court dismissing his petition for relief under the Post-Conviction Hearing Act (Act) (Ill. Rev. Stat. 1987, ch. 38, par. 122 — 1 et seq.). Petitioner raises one issue on appeal: whether the trial court abused its discretion when it dismissed petitioner’s petition without an evidentiary hearing.

On January 4, 1984, petitioner was charged with the armed robbery of an Aldi’s grocery store. On March 15, 1984, a negotiated plea agreement was presented to the court. Under the agreement, petitioner was to be sentenced to a 20-year term of imprisonment in exchange for a plea of guilty to the armed robbery charge. During the hearing, petitioner and the trial court engaged in the following colloquy:

“THE COURT: Mr. Phillips, you understand the plea agreement?
DEFENDANT PHILLIPS: Yes, I do.
THE COURT: Are you satisfied with it?
DEFENDANT PHILLIPS: I believe so.
* * *
THE COURT: Outside or apart from this plea agreement has anyone done anything to influence you to plead guilty to this charge?
DEFENDANT PHILLIPS: No, they haven’t.
THE COURT: Have you talked about the advisability of accepting the agreement with your attorney, Mr. Thompson?
DEFENDANT PHILLIPS: Yes.
THE COURT: Are you satisfied with the investigation he has done into this case?
DEFENDANT PHILLIPS: Yes.
THE COURT: Is there anything you don’t understand about the agreement or any question of me that you have at this point in time?
DEFENDANT PHILLIPS: No, I don’t have any questions.”

After admonishing petitioner, the court imposed the sentence according to the agreement.

On February 28, 1985, petitioner filed a pro se petition for a post-conviction hearing alleging that he was denied effective assistance of counsel at the hearing on the entry of his guilty plea. Petitioner asserted that his attorney, the public defender, was inadequate because he was appointed for that hearing and consulted with petitioner for only five minutes prior to the hearing.

On April 13, 1987, petitioner filed a pro se amended petition for post-conviction relief. In the petition, petitioner alleged that his appointed attorney consulted with him for only five minutes before the hearing, did not consult with petitioner’s family and failed to offer any evidence in mitigation. Petitioner submitted an affidavit in which he reasserted the allegations in the petition and added the allegation that he pleaded guilty because the State’s Attorney threatened him with a harsher sentence if the case proceeded to trial.

The record establishes that petitioner filed his petition for post-conviction hearing pro se on February 28, 1985. The circuit court of Du Page County thus had 30 days, or until March 30, 1985, to “examine such petition and enter an order thereon pursuant to” section 122 — 2.1(a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1985, ch. 38, par. 122 — 2.1(a)). Section 122 — 2.1(a) authorizes the trial court to dismiss the petition by an order entered within SO days of it being filed if the court finds it frivolous or without merit. (Ill. Rev. Stat. 1985, ch. 38, par. 122 — 2.1(a).) However, if the petition is not dismissed by order entered within 30 days of its being filed and docketed by the circuit clerk pursuant to section 122 — 2.1(a), then, pursuant to the next subsection, subsection 122 — 2.1(b), the trial court is to order the petition docketed for further consideration in accordance with the next sections, sections 122 — 4 through 122 — 6. Ill. Rev. Stat. 1987, ch. 38, pars. 122 — 2.1(b), 122 — 4 through 122 — 6.

Obviously, for reasons not explained in the record or briefs, the trial court did not enter either order required by section 122 — 2.1. (See People v. Jones (1989), 180 Ill. App. 3d 37, 535 N.E.2d 1103.) The failure of the trial court to comply with section 122 — 2.1 with regard to the February 28, 1985, petition, however, is not raised as an issue on appeal.

The next relevant occurrence was the filing of an amended petition, pro se, by petitioner on April 13, 1987. In compliance with section 122 — 2.1(b), the trial court entered an order docketing the case for May 13, 1987 (see Ill. Rev. Stat. 1987, ch. 38, par. 122 — 2.1(b)), and appointing counsel for petitioner (see Ill. Rev. Stat. 1987, ch. 38, par. 122 — 4). On May 13, court-appointed counsel was given leave to file his appearance, and the cause was continued to June 17, 1987, for a status report. Petitioner was given leave to file an amended post-conviction petition within 14 days. In compliance with section 122 — 5 (Ill. Rev. Stat. 1985, ch. 38, par. 122 — 5), the State was ordered to respond to the second amended petition within 14 days of its being filed, and the matter was set for hearing on all motions and petitions for July 23, 1987. On July 10, 1987, petitioner filed the second amended petition. In the petition and accompanying affidavit, petitioner alleged that his guilty plea was not made knowingly and voluntarily because the public defender did not consult with petitioner except for five minutes before the hearing on the plea agreement, did not conduct any discovery or investigation into the case and did not explore any defenses or mitigating factors.

On July 23, 1987, the State moved to dismiss the petition on the ground that it was conclusional and not supported by the evidence. The court noted that at the hearing on the plea, petitioner was asked whether he was satisfied with his attorney, to which petitioner responded affirmatively. The court found that the petition was frivolous and granted the State’s motion to dismiss. This appeal followed.

Petitioner contends that this court should remand the cause to the trial court for an evidentiary hearing to determine whether his trial counsel was incompetent and, if so, - whether petitioner’s guilty plea was voluntary. First, petitioner argues that the court could not dismiss his petition as frivolous because he had already had counsel appointed to represent him on his petition, relying upon People v. Porter (1988), 122 Ill. 2d 64, 521 N.E.2d 1158 (where the court held that the trial court could not summarily dismiss a petition under section 122 — 2.1(a) after 30 days but would have to proceed as directed by section 122 — 2.1(b)). Petitioner bases this argument on section 122 — 2.1(a) of the Act (Ill. Rev. Stat. 1987, ch. 38, par. 122 — 2.1 et seq.), which provides that the court, on its own motion, may dismiss the petition within 30 days of filing if it is frivolous. Ill. Rev. Stat. 1987, ch. 38, par. 122-2.1(a).

A careful reading of People v. Porter (1988), 122 Ill. 2d 64, 521 N.E.2d 1158, as to petitioners therein, Singleton and Mason, and in the context of the several steps involved in the Act, makes it clear that the 30-day limitation on the trial court imposed by section 122— 2.1(a) of the Act (Ill. Rev. Stat. 1987, ch. 38, par. 122 — 2.1(a)) as to entry of a judgment of summary dismissal is mandatory and not merely directory. That is, the court has only 30 days after the filing and docketing by the circuit clerk of the petitioner’s post-conviction petition to enter a judgment of summary dismissal. If the 30-day period has expired, the trial court has no authority under the statute (Ill. Rev. Stat. 1987, ch. 38, par. 122 — 2.1(a)) to enter a judgment of summary dismissal. (People v. Porter (1988), 122 Ill. 2d 64, 521 N.E.2d 1158.) Instead, the court must docket the petition for further consideration (Ill. Rev. Stat. 1987, ch. 38, par. 122 — 2.1(b)). The court must appoint counsel if the petitioner so requests and if the petitioner is indigent. (Ill. Rev. Stat. 1987, ch. 38, par. 122 — 4.) The State is limited to 30 days after the petition is docketed pursuant to section 122— 2.1(b) to file either a motion to dismiss or an answer (Ill. Rev. Stat. 1987, ch. 38, par. 122 — 5), and if the State files a motion to dismiss which the court denies, the State is given an additional 20 days to file an answer. Ill. Rev. Stat. 1987, ch. 38, par. 122 — 5.

Further, we note that the Act limits the basis upon which the post-conviction petition can be summarily dismissed in that the court must find that it is “frivolous or is patently without merit” or, presumably, words to that effect. (Ill. Rev. Stat. 1987, ch. 38, par. 122— 2.1(a).) However, if after 30 days of its filing and docketing by the circuit clerk the petition is dismissed after compliance with sections 122 — 4 through 122 — 6 of the Act (Ill. Rev. Stat. 1987, ch. 38, pars. 122 — 4 through 122 — 6), the finding by the court is not so limited. Therefore, the fact that the court is enlightened by or agrees with the State’s motion to dismiss (Ill. Rev. Stat. 1987, ch. 38, par. 122 — 5) because the petition is “frivolous” or “without merit,” or words to that effect, such a finding should not automatically indicate that the dismissal was a summary dismissal as described in section 122 — 2.1(a) of the Act (Ill. Rev. Stat. 1987, ch. 38, par. 122 — 2.1(a)). It may be that the court fully complied with sections 122 — 2.1(b) and 122 — 4 through 122 — 6 as required after 30 days of the filing on docketing of the petitioner’s post-conviction petition but, nonetheless, found it frivolous.

Finally, we do not read Porter as holding that once the 30-day limitation in section 122 — 2.1(a) has expired, no dismissal can be entered thereafter. In fact, section 122 — 5 specifically authorizes the State to file a motion to dismiss the petition before filing an answer to it. (Ill. Rev. Stat. 1987, ch. 38, par. 122 — 5.) It would, indeed, be ludicrous to suggest that the trial court could not act on the State’s motion to dismiss by granting it if the trial court found the State’s motion meritorious and petitioner’s petition frivolous. Rather, we believe Porter holds that no summary dismissal as described in section 122 — 2.1(a) can be entered after 30 days of the petition being docketed by the clerk.

Thus, petitioner Phillips’ argument is not persuasive because the court was not proceeding under section 122 — 2.1(a). The dismissal was, instead, granted pursuant to section 122 — 5 (Ill. Rev. Stat. 1987, ch. 38, par. 122 — 5), as evidenced by the fact that the trial court proceeded pursuant to section 122 — 2.1(b) by docketing the case for further consideration, by appointing counsel as provided for by section 122 — 4, and by considering and disposing of the State’s timely motion to dismiss as provided for under section 122 — 5 by granting the State’s motion to dismiss.

The language of the trial court’s finding that the petition was baseless and frivolous does not convert the procedure employed to a summary dismissal which would be prohibited after 30 days of the clerk’s docketing of the petition under section 122 — 2.1(a) since the basis for a section 122 — 5 dismissal is not so circumscribed as to prohibit the dismissal of a frivolous, meritless or baseless petition under section 122 — 5. That section simply provides that the court may dismiss the petition beyond the 30-day limit provided for in section 122— 2.1(a) if the succeeding requisites of the Act have been met. Ill. Rev. Stat. 1987, ch. 38, pars. 122-2.1(b), 122-4,122-5.

Petitioner’s next argument is that the trial court used the wrong standard to determine whether to dismiss the petition. According to petitioner, the court confused a direct appeal with a post-conviction petition, as demonstrated by the following comments of the court:

“THE COURT: What about the requirement that, Mr. Mannina, if there were appeal [sic] in this case, petitioner would first have to ask for leave to withdraw his guilty plea and set forth the reasons why that should be done?
It appears to me that maybe that should be a necessary prerequisite to post-conviction relief as well, I don’t know.”

Petitioner asserts that the court applied the standard for a direct appeal rather than the standard for post-conviction relief.

This argument is without merit because both defense counsel and the State’s Attorney informed the court that withdrawal of the guilty plea was not necessary for a post-conviction petition. The record indicates that the court used the correct standard in deciding whether to dismiss the petition.

•3 Petitioner further argues that it was error for the court to conclude that the transcript from the plea hearing was sufficient to counter the facts alleged in the petition and supporting affidavit because the facts supporting petitioner’s allegations occurred off the record. Petitioner claims that this case is analogous to People v. Brumas (1986), 142 Ill. App. 3d 178, 491 N.E.2d 773. The petitioner in Brumas alleged that his guilty plea was not voluntary because his attorney was an assistant Attorney General and therefore had a conflict of interest. Based on the alleged conflict of interest, the petitioner claimed that his trial counsel was ineffective. The petitioner attached an affidavit reciting the factual bases for his allegations. The State filed affidavits in response. The appellate court decided that it was error for the trial court to dismiss the petitioner’s petition without holding an evidentiary hearing because the affidavits presented a factual conflict. Brumas, 142 Ill. App. 3d at 181, 491 N.E.2d at 775.

We do not agree with petitioner’s conclusion that the present case is analogous to Brumas. The State in Brumas did not contest the sufficiency of the affidavit submitted by the petitioner. Rather, the State argued that the need for an evidentiary hearing “was obviated by the affidavits filed by the State.” (Brumas, 142 Ill. App. 3d at 180, 491 N.E.2d at 775.) In the present case, the court found that the affidavit did not allege specific facts capable of rebutting the record of the plea hearing in which petitioner indicated that he was satisfied with the investigation by the public defender.

We find that People v. Hysell (1971), 48 Ill. 2d 522, 272 N.E.2d 38, is dispositive of this appeal. In Hysell, our supreme court noted that the petitioner’s affidavit, submitted with his post-conviction petition, “was a reaffirmation of the conclusional statements made in [the] petition.” (Hysell, 48 Ill. 2d at 526, 272 N.E.2d at 40.) In finding that the' petitioner’s petition was not sufficient to survive a motion to dismiss, the court stated:

“The amended petition set forth conclusional statements pertaining to a violation of the defendant’s constitutional rights because: his guilty plea was coerced; he was denied the right to confer with counsel at the time of his arrest; and he was not allowed the right to appeal from his original sentence. Neither the petition nor the affidavit set forth evidence supporting such conclusions. In order to require an evidentiary hearing, a post-conviction petition must make a substantial showing that the defendant’s constitutional rights have been violated. Such showing must be based on factual allegations rather than conclusional statements.” 48 Ill. 2d at 527, 272 N.E.2d at 40-41.

In the present case, the second amended petition and the accompanying affidavit are nearly identical. There are no additional facts in the affidavit, only conclusions. Since petitioner failed to make a substantial showing based on factual allegations that his constitutional rights had been violated, the trial court correctly dismissed the petition.

The order of the circuit court is affirmed.

Affirmed.

REINHARD and INGLIS, JJ., concur.


text:
      In re MARRIAGE OF MARLA STRAUSS, Petitioner-Appellee, and FREDERICK J. STRAUSS, Respondent-Appellant.
    Second District
    Nos. 2—88—0317, 2—88—0581 cons.
    Opinion filed May 25, 1989.

      Ralph E. Madsen, of Madsen, Baudin, Stolfi & Sugden, of Crystal Lake, for appellant.
    Thomas W. Hunter, of Palatine, for appellee.
   JUSTICE DUNN

delivered the opinion of the court:

Respondent, Frederick Strauss, filed a petition to restrain his second wife, petitioner Marla Strauss, from initiating any contact with his three children from a prior marriage. The circuit court denied the petition and imposed sanctions against Frederick and his attorney pursuant to section 2 — 611 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 611). We have consolidated on our own motion Frederick’s separate appeals from the order denying the petition and the order imposing sanctions. With regard to the former proceeding, Frederick contends that the trial court erred in the following respects: (1) by requiring him to give notice of the proceeding to certain attorneys who represented the children in the prior divorce and allowing them to participate; (2) by denying his motion for a court-appointed psychologist; (3) by refusing to allow certain testimony concerning Marla’s conduct; (4) by refusing to allow his attorney to make offers of proof concerning disallowed testimony; and (5) by ruling that he failed to establish a prima facie case for injunctive relief. With regard to the award of sanctions, Frederick contends that this award was against the manifest weight of the evidence and that the award to his minor son, Charles, was improper because Charles was not a party. We affirm the denial of Frederick’s petition and dismiss the appeal from the award of sanctions.

The circuit court issued an order on November 7, 1986, dissolving the parties’ marriage and reserving other issues for future determination. Six days later, Frederick filed his petition to restrain Marla from initiating contact with Charles, Kevin and Frederick, his three sons from a prior marriage. Over Frederick’s objection, the trial court directed him to provide notice of the proceedings to David Stone, who had served as Charles’ attorney during the prior divorce, and Richard Jones, who had been guardian ad litem for all three children during the earlier divorce. These two attorneys were allowed to participate in the hearing on the petition.

The hearing on the petition commenced on January 20, 1988, with Frederick calling Marla as an adverse witness. Marla testified she left Frederick in December 1985, subsequently returned to his home, left again in May 1986, returned for a few days in July 1986, and left for good later that month. Marla sometimes spoke to the children in church after the final separation, and they went over to her home a few times. She stated that her home was always open to the children. The trial court sustained an objection when Frederick’s attorney asked Marla if she had ever discussed with Frederick’s first wife, Melody, the possibility of hiring an attorney to regain custody of the children. Melody was the mother of the children. Marla admitted that in April 1986, she took the family housekeeper to the location of her new job after the housekeeper quit. Marla also allowed this woman to stay in a vacant house she owned after the woman left the second job.

The trial court continued the hearing until March 3, 1988. The trial court denied Frederick’s motion that morning for a court-appointed psychologist to examine the children. Frederick then testified. He stated that when Marla left on December 14, 1985, she was aware that Frederick would be out of town for job-related reasons from December 24 to 26. Marla left anyway and told Frederick to get a babysitter. Frederick also stated that the grades of the children began to decline after he and Marla separated and that the children began missing soccer practices and spending time with Marla instead. The trial court sustained the objection of Marla’s counsel when Frederick was asked if Marla’s contact with the children increased at any time subsequent to the initial separation. The trial court did not permit Frederick’s counsel to make an offer of proof concerning this question.

After Frederick rested, Marla’s counsel moved for a directed finding. The trial judge granted the motion, stating that no evidence was presented that Marla’s contacts with the children had a detrimental effect on them. Marla’s attorney and Charles’ attorney both filed petitions with the court for attorney fees pursuant to section 2 — 611 of the Code. The trial court granted the petition following a hearing on May 5, 1988. The court awarded $3,945 to Marla and $1,985 to Charles, with Frederick’s attorney, Ralph Madsen, jointly and severally liable for $625 of the award to Charles.

It is difficult to perceive any possible prejudice to Frederick from the trial court’s actions in requiring Frederick to send notice of the proceedings on his petition to the guardian ad litem for the children and to Charles’ attorney. The trial court denied the petition because Frederick failed to present a prima facie case for injunctive relief, not because of any evidence presented by these attorneys. Furthermore, the trial court’s actions were not erroneous. Courts have inherent power to appoint a guardian ad litem for minors interested in litigation. (Pelham v. Griesheimer (1982), 92 Ill. 2d 13, 24.) If the interests of minors are not adequately represented, it is the duty of the trial court to take such a measure. Majidi v. Palmer (1988), 175 Ill. App. 3d 679, 685.

In light of the apparent hostility between the parties and the fact that the trial court’s ruling on the petition would affect the children, the trial court did not err by permitting representatives of the children to participate in the hearing. The trial court’s exercise of its inherent authority to protect the best interests of the minors by insuring them adequate representation was well within its discretion and did not result in prejudice to Frederick.

Frederick complains of several evidentiary rulings made by the trial court but does not cite any authority in his brief in support of his argument that the rulings were erroneous. The appellate court is not a depository in which the appellant may dump his burden of argument and research. (Williams v. Danley Lumber Co. (1984), 129 Ill. App. 3d 325.) Failure to cite pertinent authority in support of an issue raised is a violation of Supreme Court Rule 341(e)(7) (113 Ill. 2d R. 341(e)(7)) which results in waiver of the issue on appeal. (Britt v. Federal Land Bank Association (1987), 153 Ill. App. 3d 605, 608.) Frederick has waived any objection to the evidentiary rulings of the trial court. Frederick has also failed to cite any authority in support of his contention that his motion for a court-appointed psychologist was erroneously denied and has also waived this argument.

According to Frederick, the trial court erroneously refused to allow him to introduce offers of proof on two occasions after the court sustained objections to questions asked to him by his attorney. One of the questions related to an incident mentioned by Marla in her testimony in which Frederick supposedly called the local police in order to have them watch while he administered corporal punishment to one of the children. The other was whether Marla’s contact with the children increased at any point after her initial separation from Frederick.

If an offer of proof is necessary, it is error for the trial court to refuse counsel an opportunity to state what he or she proposed to prove through the evidence. (Blazina v. Blazina (1976), 42 Ill. App. 3d 159, 166.) Here, we do not believe that offers of proof were necessary because the questions asked would not have produced relevant testimony. Evidence is relevant if it tends to prove a matter in controversy. (Bullard v. Barnes (1984), 102 Ill. 2d 505, 519.) The question about the incident in which Frederick supposedly called the police to have them witness him administer corporal punishment is not relevant since Marla’s conduct was at issue, not Frederick’s. The other question would not have produced relevant evidence since the matter in controversy was whether Marla’s contacts with the children were harming them, not whether she increased those contacts at a certain point.

Finally, Frederick argues that the trial court erred in determining that he did not establish a prima facie case for injunctive relief. Once again, Frederick has failed to cite any authority in support of this argument and has therefore waived it pursuant to Supreme Court Rule 341(e)(7). In any event, the contention is without merit. An injunction will only be granted if the party seeking it has a certain and clearly ascertained right which needs protection and will suffer irreparable harm if the injunction is not granted. (Smith Oil Corp. v. Viking Chemical Co. (1984), 127 Ill. App. 3d 423, 431.) Proof of a speculative possibility of injury is not sufficient. Smith Oil Corp., 127 Ill. App. 3d at 431.

Frederick failed to present any evidence that he or the children were likely to suffer irreparable harm because of the contacts between Marla and the children. Frederick testified that the grades of the children had generally declined since the initial separation of the parties and the children had stopped participating in soccer. It is sheer speculation, however, to assume that these things occurred because of Marla's contacts with the children. Frederick presented no evidence that Marla discouraged the children from doing their school work or participating in soccer.

Frederick contends in his brief that he presented evidence that Marla exhibited a callous disregard for the welfare of the children on several occasions. The first was when she left him on December 14, 1985, forcing Frederick to hire a baby-sitter to care for the children because he was out of town for job-related reasons from December 24 to 26. We note that Marla had no legal duty to care for the children. With scant evidence in the record of the circumstances surrounding Marla’s December 14 departure, it cannot be said from the evidence presented that she exhibited a callous disregard for the children solely because she departed from a failing marriage and forced her husband to hire a baby-sitter on short notice. Another alleged example of Marla’s callous disregard for the children was the fact that Marla transported the housekeeper/baby-sitter to her new job after she quit. Since the baby-sitter was leaving anyway, it is difficult to imagine how Marla harmed the children by giving her a ride to her new job. There is no evidence Marla encouraged the woman to quit.

Frederick also testified that Marla refused to allow him to borrow a van which had been temporarily awarded to her by the trial court. Since the trial court awarded two vehicles to Frederick, it is difficult to imagine how Marla was exhibiting a disregard for the children by refusing to lend him the van. The trial court correctly ruled that Frederick did not establish a prima facie case for injunctive relief because there was no evidence that Marla’s contacts with the children were likely to cause irreparable harm to them or to Frederick.

With regard to the appeal from the order imposing sanctions against Frederick pursuant to section 2 — 611 of the Code, said appeal must be dismissed. The foregoing statute was amended, effective November 25, 1986, and now states in relevant part as follows:

“All proceedings under this Section shall be within, and part of the civil action in which the pleading, motion or other paper referred to herein has been filed, and no violation or alleged violation of this Section shall give rise to a separate cause of action, or another cause of action within the civil action in question, by, on behalf of or against any party to the civil action in question, and by, on behalf of or against any attorney or insurance company involved in the civil action in question.” Ill. Rev. Stat. 1987, ch. 110, par. 2 — 611.

It is clear from the above language that section 2 — 611 claims must be considered part of the civil action which gave rise to the claim; they can no longer be considered separate actions. (Palmisano v. Connell (1989), 179 Ill. App. 3d 1089, 1095.) Thus, the section 2— 611 claims in this case must be considered part of the underlying dissolution-of-marriage action. In Palmisano, we went on to hold that, absent a special finding pursuant to Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)), the underlying judgment was not appealable until the section 2 — 611 claim was resolved. 179 Ill. App. 3d at 1095.

In the case at bar, the situation is the reverse of that in Palmisano. The section 2 — 611 claims have been resolved, but there are matters still to be resolved with regard to the underlying action. According to our review of the record, Marla’s petition for allocation of attorney fees, which was filed in June 1987, was still pending at the time Frederick filed his notice of appeal. This court has held that there can be no final judgment in a dissolution-of-marriage proceeding if a petition for allocation of attorney fees remains pending. (In re Marriage of Derning (1983), 117 Ill. App. 3d 620, 627.) Under Derning, there was no final order at the time Frederick filed his notice of appeal.

This court only has jurisdiction to review final orders (107 Ill. 2d R. 301) unless the order appealed from falls within one of the exceptions for interlocutory orders set forth in the Supreme Court Rules. (Renzulli v. Zoning Board of Appeals (1988), 176 Ill. App. 3d 661, 662.) Since Frederick’s initial appeal in this consolidated case was from an order denying an injunction, the exception set forth in Supreme Court Rule 307(a)(1) (107 Ill. 2d R. 307(a)(1)) was applicable. None of the exceptions, however, applies to his appeal from the order granting sanctions pursuant to section 2 — 611. We must therefore dismiss this appeal for lack of jurisdiction.

Frederick argues that the section 2 — 611 claim is not directly related to the other matters in the proceeding. If the trial court had made a finding pursuant to Supreme Court Rule 304(a) that there was no just reason to delay enforcement or appeal from the order, his argument might support a conclusion that the section 2 — 611 claim is a separate claim which is rendered appealable under the rule by inclusion of the aforementioned language in the order. The trial court, however, did not include this language in either of the orders granting sanctions. Although a section 2 — 611 claim might constitute a separate claim in a dissolution proceeding for Rule 304(a) purposes, the language of section 2 — 611 makes it clear that it cannot constitute a separate action.

For the reasons stated herein, we affirm the order of the circuit court of McHenry County denying the petition for injunctive relief and dismiss the appeal from the two orders imposing sanctions.

No. 2-88-0317, Affirmed.

No. 2 — 88—0581, Dismissed.

McLAREN and NASH, JJ., concur.