author: JUSTICE RARICK

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EDWARD WILLIAMS, Defendant-Appellant.
    Fifth District
    No. 5—92—0293
    Opinion filed August 24, 1993.
    Robert S. Burke, of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Robert Haida, State’s Attorney, of Belleville (Norbert J. Goetten, Stephen E. Norris, and Diane L. Campbell, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE RARICK

delivered the opinion of the court:

Defendant, Edward Williams, was found guilty after a jury trial of unlawful possession of less than 15 grams of cocaine and sentenced by the circuit court of St. Clair County to an 18-month term of probation. Defendant appeals arguing he was deprived of a fair trial by the prosecutor’s closing argument. We affirm.

At trial, the evidence revealed that at approximately 7:42 p.m. on June 30, 1992, Sergeant Mark Koelker and Trooper Bill Moseley of the Illinois State Police were summoned to the scene of an illegal drug delivery in East St. Louis. When the officers arrived at the scene, they found six men standing between two parked cars. The officers exited their car with guns drawn, announced themselves as police, and ordered the men to place their hands on the cars. As Moseley approached the individual suspected of selling drugs, defendant started to walk around one of the two parked cars. Koelker ordered defendant to stop, while following him around the car. Defendant, now behind one of the cars, reached into his pants pocket, pulled out a brown pill bottle, and dropped it on the ground. After detaining and patting down defendant, Koelker picked up the bottle, which was later determined to contain .3 grams of rock cocaine. Defendant denied dropping any bottle or even walking around the car. Defendant claimed he was just getting out of his car and walking toward the police when he was ordered to “freeze.” Three witnesses at the scene, defendant’s brothers and a friend, also denied seeing a pill bottle in defendant’s possession or seeing defendant drop the bottle. The jury, however, chose to believe the State’s witnesses.

Defendant argues on appeal that the prosecutor’s closing argument distorted the State’s burden of proof and deprived him of a fair trial. Defendant believes that the evidence was closely balanced and argues consequently it was reversible error for the prosecutor to argue that the defense was asking the jury to believe Officer Koelker was lying. The State counters that defendant waived the right to raise the issue on appeal by failing to object at trial or specify the alleged error in his post-trial motion. Moreover, the State asserts, even if the issue were not waived, the prosecutor’s closing argument, consisting solely of proper comments upon directly contradictory evidence and the credibility of the witnesses, did not prejudice defendant.

It is well settled that the failure to object at trial to allegedly improper remarks made by the State or to raise such objections in a post-trial motion generally constitutes a waiver of any error on appeal. (See People v. Henderson (1990), 142 Ill. 2d 258, 322, 568 N.E.2d 1234, 1265; People v. Smith (1991), 222 Ill. App. 3d 473, 485, 584 N.E.2d 211, 219; see also People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124, 1130.) Only if the remarks were so flagrant as to threaten deterioration of the judicial process or so prejudicial as to deprive defendant of a fair trial will we consider their propriety under plain error review. (See People v. Ferguson (1988), 172 Ill. App. 3d 1, 13, 526 N.E.2d 525, 533; People v. Cole (1980), 80 Ill. App. 3d 1105, 1107, 400 N.E.2d 931, 933.) In this instance, we conclude that the complained-of comments do not rise to the level of plain error.

A prosecutor has a legitimate right to comment upon the credibility of witnesses as long as such comments are based upon the evidence or reasonable inferences therefrom. (See People v. Childs (1981), 101 Ill. App. 3d 374, 377, 428 N.E.2d 185, 187-88; People v. Roman (1981), 98 Ill. App. 3d 703, 707, 424 N.E.2d 794, 798.) Here the testimony of the witnesses was directly contradictory. Koelker testified that, even though ordered to stop, defendant continued to walk around one of the parked cars and dropped a brown pill bottle. Defendant, on the other hand, claimed he stopped immediately, never walked around the car, and did not throw down a pill bottle. Defendant specifically stated the officer’s testimony was incorrect. Clearly both witnesses could not be right. This is not a situation of possible mistaken identity, or of the prosecutor vouching for the credibility of a certain witness. (Compare People v. Wilson (1990), 199 Ill. App. 3d 792, 796-97, 557 N.E.2d 571, 574; People v. Ridley (1990), 199 Ill. App. 3d 487, 493-94, 557 N.E.2d 378, 382; Cole, 80 Ill. App. 3d at 1108, 400 N.E.2d at 933, with People v. Love (1991), 222 Ill. App. 3d 428, 436, 584 N.E.2d 189, 195; Roman, 98 Ill. App. 3d at 707-08, 424 N.E.2d at 798; People v. Bost (1980), 80 Ill. App. 3d 933, 953-54, 955, 400 N.E.2d 734, 749, 751.) Either defendant did what he said he did or did what the officer observed. As the prosecutor was merely questioning the credibility of the witnesses, her argument did not prejudice defendant. She did hot distort the burden of proof as defendant asserts; in fact, she specifically told the jury the correct statement of the burden of proof. Moreover, defense counsel repeatedly stated the burden of proof and reminded the jury that a police officer’s testimony was to be judged the same as any other witness’ testimony. And, any other possible prejudice was cured by the tendered jury instructions. We note that arguments of counsel generally carry less weight with a jury than do instructions from the court. (People v. Lawler (1991), 142 Ill. 2d 548, 564-65, 568 N.E.2d 895, 902-03.) If error occurred here at all, it certainly was not reversible. Under such circumstances, we cannot say that, without the complained-of comments, the verdict likely would have been different.

For the aforementioned reasons, we affirm the judgment of the circuit court of St. Clair County.

Affirmed.

CHAPMAN, P.J., and WELCH, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    WORLD COLOR PRESS, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Thomas L. Young, Appellee).
    Fifth District (Industrial Commission Division)
    No. 5—92—0503WC
    Opinion filed June 11, 1993.
    Rehearing denied September 17, 1993.
    James M. Gallen, of Evans & Dixon, of St. Louis, Missouri, for appellant.
    Richard K. Johnson and Harold A. Katz, both of Katz, Friedman, Schur & Eagle, of Chicago, for appellee.
   JUSTICE RARICK

delivered the opinion of the court:

Claimant, Thomas J. Young, sought benefits pursuant to the Workers’ Compensation Act (Act) (Ill. Rev. Stat. 1989, ch. 48, par. 138.1 et seq.) for injuries to his right hand, which occurred in the course of his employment as a maintenance worker for World Color Press.

On June 16, 1981, Young was repairing a book strapper when he caught his right hand in a machine clamp. His hand -was trapped for approximately one minute, and upon release, it began to swell and his fingers grew numb.

Young initially underwent two surgeries, the last of which was on September 2, 1982. Young sought benefits pursuant to the Act, and on January 1, 1984, the arbitrator awarded Young 202/7 weeks of temporary total disability (TTD) and 30% permanent partial disability to his right hand. No review by either party was requested.

The condition of Young’s hand continued to grow worse, and a third surgery was performed. On November 28, 1984, Young was referred to Dr. Nashaat Naam, a hand specialist, by World Color Press’ insurance agent. Based on various diagnostic tests, Dr. Naam made a preliminary diagnosis that Young had severe neuropathy of the right ulnar nerve and that a fourth surgery would be required. This surgery was performed on March 22, 1985, and Dr. Naam recommended that Young remain off work until May 19,1985.

World Color Press required Young to return to work earlier than this, and Young continued to worsen to the point where Dr. Naam felt he could no longer treat him effectively. Both Dr. Naam and World Color Press recommended that Young seek treatment at a better-equipped medical facility.

On April 22, 1987, Young saw Dr. V. Leroy Young, a specialist in plastic and reconstructive surgery. Dr. Young had a bone scan performed, which revealed degenerative changes involving" the right third metacarpal-phalangeal joint, the left fifth proximal interphalangeal joint and the right hamate. Dr. Young performed a fifth surgery, a luno-triquetra fusion with a metallic screw and excision of the triangular fibrocartilage of the right wrist on June 9, 1987, at Barnes Hospital in St. Louis, Missouri.

Young was subsequently evaluated by Dr. William Hart at the request of World Color Press. Dr. Hart noted that Young complained of numbness of the fingers and pain in his right wrist whenever he moved it. Dr. Hart concluded that Young’s condition was related to the 1981 injury and recommended physical therapy prior to Young’s returning to work.

Young was finally released for work on January 25, 1988. Upon returning to work, Young began experiencing an extreme amount of right-hand pain, a decrease in finger operations, and an inability to move his right hand laterally. X rays conducted on February 17, 1988, failed to reveal any definite evidence of luno-triquetra fusion, and on March 2,1988, Dr. Young took Young off work.

Young again returned to work on June 27, 1988. He continued to experience pain in his right hand, numbness, and tingling, excruciating pain in his right wrist where the screw was positioned. Young was also unable to do any heavy lifting and could sleep for no more than one or two hours without feeling a burning pain extending from his fingers to his elbow;

Dr. Young evaluated Young in 1989 and concluded that he had undergone significant adverse changes and suffered a material increase in disability since 1983. Dr. Young indicated the loss of use in the right hand and wrist was permanent but qualified that conclusion with the stipulation that Young might require additional surgery to correct any further complaints of pain.

On May 3, 1985, Young filed a petition for review of this award pursuant to sections 19(h) and 8(a) of the Act (Ill. Rev. Stat. 1985, ch. 48, pars. 138.19(h), 138.8(a)), alleging that his disability had increased and that World Color Press was liable for his additional medical expenses. By this time, the 202/7-week TTD award of January 1, 1984, had expired. A hearing on review was held on August 25, 1989. On the review proceedings stipulation form, Young indicated “nature and extent” and “TTD” as the issues in dispute. World Color Press claimed no issues in dispute. Additionally, World Color Press paid the TTD benefits which accrued after the arbitrator’s hearing.

On June 13, 1991, the Industrial Commission (Commission) ruled that Young’s disability had materially increased since the 1983 arbitration hearing and that the extent of Young’s permanent loss of use of his right hand had increased to 50%. The Industrial Commission increased Young’s permanent partial disability award to 50% pursuant to section 19(h) and awarded 574/7 weeks of temporary total disability benefits pursuant to section 8(b). The circuit court affirmed the decision of the Commission, ruling that in a section 19(h) proceeding, TTD benefits are available if the petitioner sustains his burden of proving a material increase in the permanent disability.

On appeal, World Color Press argues that it was improper to award TTD benefits for a period occurring after a prior determination of permanent partial disability. World Color Press contends that the additional 20% permanent partial disability award fully compensated Young for the additional loss of earning capacity.

Section 19(h) of the Workers’ Compensation Act provides in pertinent part:

“An agreement or award under this Act providing for compensation in installments, may at any time within 18 months after such agreement or award be reviewed by the Commission at the request of either the employer or the employee, on the ground that the disability of the employee has subsequently recurred, increased, diminished or ended.
However, as to accidents occurring subsequent to July 1, 1955, which are covered by any agreement or award under this Act providing for compensation in installments made a result of such accident, such agreement or award may at any time within 30 months after such agreement or award be reviewed by the Commission at the request of either the employer or the employee on the ground that the disability of the employee has subsequently recurred, increased, diminished or ended.
On such review, compensation payments may be re-established, increased, diminished or ended.” Ill. Rev. Stat. 1989, ch. 48, par. 138.19(h).

In Briggs Manufacturing Co. v. Industrial Comm’n (1989), 212 Ill. App. 3d 318, 570 N.E.2d 1152, upon which World Color Press relies, the arbitrator awarded claimant TTD benefits for 17% weeks. On review, the Industrial Commission modified the arbitrator’s award and found that claimant was permanently partially disabled to the extent of 2% and affirmed the 17% weeks’ TTD benefits. Approximately one year later, claimant filed a section 19(h) petition alleging that since the Commission’s decision she had become further temporarily totally disabled and that the degree of her permanent disability had increased. The Commission found that claimant had failed to prove that she had sustained a material increase in her permanent disability but nevertheless awarded additional TTD benefits for 45% weeks. The court in Briggs reversed the Commission’s award of additional TTD, holding that the Commission’s prior finding that claimant was permanently disabled to the extent of 2% “was tantamount to a decision that she had recovered as much as the character of her injury would permit” and that it was “improper *** for the Commission to award the petitioner TTD benefits for the period following the stabilization of her injury.” (Briggs, 212 Ill. App. 3d at 321, 570 N.E.2d at 1153.)

As the court in Briggs noted:

“It is well settled that TTD benefits are available only from the time an employee is injured until he has recovered as much as the character of his injury will permit. [Citation.] Temporary incapacity might be described as the period of the healing process. [Citation.] Once the Commission concludes that the petitioner’s condition has stabilized and that the permanent nature of the injury can be assessed, an award of temporary total disability is no longer appropriate under section 19(h). [Citation.] Whether an employee has sustained an injury which renders him permanently disabled is a question of fact to be resolved by the Commission.” Briggs, 212 Ill. App. 3d at 320-21, 570 N.E.2d at 1153.

Unlike Briggs, however, the Commission in the present case found that Young had proven a material increase in the degree of his permanent partial disability, and this is the distinction between the present case and Briggs. World Color Press argues that this distinction is not relevant and that the Briggs decision is based exclusively on the proposition that once the Commission finds a petitioner permanently disabled no further TTD benefits' can be awarded. World Color Press maintains that an award of permanent partial disability conclusively presumes a loss of earning capacity, the exact manifestation of which is unknown at the time the award is made. The permanent partial disability award essentially constitutes complete payment in advance for the total amount of this lost earning capacity, regardless of the form it takes. To award TTD in addition, World Color Press contends, in effect allows a double recovery for lost earning capacity.

What World Color Press overlooks in its argument is that where a petitioner’s condition continues to degenerate, resulting in an increase in permanent disability, there can be an additional period of temporary incapacity associated therewith. In the present case, Young required several additional surgeries to restabilize a condition previously thought to be permanent, but which became unstable and continued to degenerate. This continuing degeneration carried with it an additional temporary incapacity which was properly compensable by an award of TTD benefits.

This interpretation is in keeping with the spirit and purpose of the Act:

“The Workers’ Compensation Act is a humane law of a remedial nature. [Citation.] The underlying purpose of the Act is to provide financial protection for workers whose earning power is interrupted or terminated as a consequence of injuries arising out of and in the course of their employment.
Remedial legislation should be construed liberally to effectuate its purposes. [Citation.] Since section 19(h) seeks to redress changes in circumstances after the entry of a compensation award payable in installments, it is particularly remedial in nature and should be construed liberally so as to allow review of alleged changes in circumstances.” Hardin Sign Co. v. Industrial Comm’n (1987), 154 Ill. App. 3d 386, 389-90, 506 N.E.2d 1066, 1069.

To deny the availability of TTD benefits where the evidence establishes an increase in the degree of permanent disability and a concomitant temporary incapacity would frustrate the purpose of the Act.

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

Affirmed.

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


author: JUSTICE UNVERZAGT

text:
    STEVEN MAKOWSKI et al., Plaintiffs-Appellants, v. THE CITY OF NAPERVILLE, Defendant-Appellee.
    Second District
    No. 2—92—1181
    Opinion filed August 2, 1993.

      Peter H. Jagel, of Knuckles & Jagel, of Naperville, for appellants.
    Marvin J. Glink and Jeffrey D. Greenspan, both of Ancel, Glink, Diamond & Cope, P.C., of Chicago, for appellee.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

Plaintiffs, Steven Makowski, Richard Swanson, Ronald Calaway and Kent Novatny, appeal from an order of the circuit court of Du Page County denying their motion for partial summary judgment and granting defendant’s, the City of Naperville’s (City’s), motion for summary judgment. Plaintiffs contend that: (1) the trial court’s refusal to provide findings of fact or law regarding the basis for its summary judgment decision was reversible error; (2) the trial court erred in reaching its summary judgment decision if it considered certain affirmative defenses raised by defendant; and (3) the trial court erred in granting summary judgment in favor of defendant.

The relevant facts, as gleaned from the record, are as follows. Plaintiffs are each owners of residential property located along River Road within the City’s municipal boundaries. Plaintiffs’ properties are all located in the Countryside subdivision (Countryside).

Countryside was developed in four phases after it was annexed by the City in 1977. Plaintiffs contracted for the construction of their homes in Countryside between December 1985 and February 1986 in phase two of the Countryside development. Three plaintiffs took possession of their homes in June 1986, and the fourth took possession of his home in September 1986.

To the immediate south of Countryside is land within the City’s municipal boundaries known as the Fields subdivision (Fields). In 1976, the Naperville city council (City Council) approved a planned unit development (PUD) preliminary plat for the Fields by enacting ordinance 76 — 53. The Fields preliminary plat shows an unnamed, generally north-south roadway running north from the proposed Book Road extension through the Fields to the then-undeveloped Countryside. As depicted in the preliminary plat, the roadway abruptly curves to the west as it approaches the northern boundary of the Fields. The Fields preliminary plat remained in place until December 1, 1986, when the City Council approved a final plat for the Fields. In the Fields final plat, the roadway shown in the preliminary plat has been realigned.

The development of the Fields included the construction in 1987 of the north-south roadway shown in the Fields plats. The road became part of River Road. River Road in the Fields was designed and constructed as a local street. Plaintiffs contend that the extension of River Road from the Countryside through the Fields to the Book Road extension has resulted in severe traffic problems and safety concerns for them as homeowners along River Road.

In 1988, plaintiffs first sought judicial relief from these purported problems by filing a claim in Federal district court under 42 U.S.C. §1983 (1988). In a memorandum opinion and order, dated December 20, 1989 (Makowski v. City of Naperville, No. 89— C—4043), the Federal court dismissed count I (the 42 U.S.C. §1983 count) of plaintiffs’ complaint for failure to state a claim, and found no reason to retain the pendant State claims which constituted counts II through VII of plaintiffs’ complaint.

On May 10, 1990, plaintiffs filed a six-count complaint in State court. Plaintiffs’ amended complaint contains seven counts. Counts I and II seek mandamus. Counts III and IV allege common-law negligence. Count V alleges statutory negligence. Count VI alleges public nuisance. Count VII seeks a declaratory judgment.

The parties filed cross-motions for summary judgment (plaintiffs’ motion was for partial summary judgment, reserving the question of damages). The trial court subsequently entered a final order denying plaintiffs’ motion for summary judgment and granting defendant’s motion for summary judgment.

Plaintiffs appeal from the final order on the summary judgment motions.

The first issue is whether the trial court’s failure to provide findings of fact or law as a basis for its summary judgment rulings prevents effective appellate review and is therefore reversible error. The trial court issued a letter ruling concerning, inter alia, plaintiffs’ motion for partial summary judgment and defendant’s motion for summary judgment. The letter ruling indicated that the trial court had “read and considered everything tendered to it” regarding the summary judgment motions. The letter ruling also indicated that the rulings were made in the light of the attorneys’ oral arguments at a prior hearing. The trial court provided no further explanation for its rulings and made no explicit findings of fact or law.

Plaintiffs subsequently filed a motion to clarify and for findings. At a hearing on that motion, plaintiffs’ counsel explained to the trial court that plaintiffs sought clarification because the letter ruling granted defendant partial summary judgment when defendant had made an unqualified motion- for summary judgment. The trial court responded that it had understood that the matter concerned cross-motions for partial summary judgment and then stated it would enter the written order as tendered (granting defendant’s motion for summary judgment and denying plaintiffs’ motion for summary judgment).

At the same hearing, plaintiffs stated that they assumed the trial court’s ruling was based on the court’s conclusion that there were no disputed issues of material fact. Plaintiffs then asked the trial court whether it had made some legal conclusions or findings based upon those undisputed facts, and whether that could be a part of the order to clarify exactly what the basis of the decision was. The trial court replied “I can’t say that I had done that,” and, despite plaintiffs’ request for elaboration, the trial court entered the order with no further explanation for its ruling.

On appeal, plaintiffs contend that the trial court did not understand the relief requested by defendant in its motion for summary judgment. Plaintiffs also contend that the trial court stated that it had not made any legal conclusions or finding of fact. Plaintiffs argue that such silence prevents effective review and cite two Federal cases (Smith v. Village of Maywood (7th Cir. 1992), 970 F.2d 397; Freeman v. Franzen (7th Cir. 1982), 695 F.2d 485) for the principle that such silence is reversible error.

In general, in a nonjury case, “[n]o special findings of fact, certificate of evidence, propositions of law, motion for a finding, or demurrer to the evidence is necessary to support the judgment or as a basis for review.” (134 Ill. 2d R. 366(b)(3)(i).) In appeals from summary judgment rulings, a reviewing court conducts a de novo review. (Outboard Marine Corp. v. Liberty Mutual Insurance Co. (1992), 154 Ill. 2d 90, 102.) It is the judgment and not what else may have been said by the lower court that is on appeal to the reviewing court. (Material Service Corp. v. Department of Revenue (1983), 98 Ill. 2d 382, 387.) The reviewing court’s function in reviewing a summary judgment is to determine whether the trial court correctly found that no genuine issue of material fact existed and whether the trial court correctly entered judgment for the moving party as a matter of law. (Fitzwilliam v. 1220 Iroquois Venture (1992), 233 Ill. App. 3d 221, 237.) In the light of the record made at the time the trial court ruled (Rayner Covering Systems, Inc. v. Danvers Farmers Elevator Co. (1992), 226 Ill. App. 3d 507, 509), a reviewing court may sustain the decision of the trial court on any grounds called for by the record, regardless of whether the trial court made its decision on the proper ground. Estate of Johnson v. Condell Memorial Hospital (1988), 119 Ill. 2d 496, 502.

Based on these principles, we conclude that it is not reversible error for a trial court to fail to provide findings of fact or law when ruling on a motion for summary judgment. While such a failure' can leave the nonprevailing party in a quandary as to exactly why the trial court ruled as it did, it is the ruling which is being appealed, not the reasons for the ruling.

Because the reviewing court conducts a de novo review of the entire record in reviewing a summary judgment, the trial court’s reasons for its ruling are not absolutely necessary for effective appellate review. A reviewing court must determine whether the record reveals disputed issues of material fact or errors in entering judgment as a matter of law. In making this determination, a reviewing court may rely on any grounds called for by the record and is not bound by the trial court’s reasoning.

Plaintiffs’ reliance on the Federal eases cited is unavailing. Those cases involve questions of the reasonableness of the amount of trial court awards for attorney fees and whether the trial court abused its discretion in making the awards. (Village of Maywood, 970 F.2d at 399; Freeman, 695 F.2d at 494.) Under those circumstances, the failure of the trial court to provide the reasoning behind its decision prevented effective appellate review. Village of Maywood, 970 F.2d at 399.

Here, we are reviewing the trial court decision granting defendant’s motion for summary judgment. As seen above, our review is de novo and based on the entire record, and our determination is not dependant upon the trial court’s reasoning. Consequently, the trial court’s failure to provide the reasoning behind its decision does not prevent effective appellate court review. Accordingly, we hold that the failure of the trial court to provide findings of fact or law as the basis for its summary judgment rulings was not reversible error.

The next issue on appeal is whether the trial court erred in considering certain affirmative defenses in reaching its decision on the summary judgment motions. Prior to its motion for summary judgment, defendant motioned to dismiss plaintiffs’ amended complaint pursuant to section 2 — 619 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1991, ch. 110, par. 1 — 101 et seq.). Defendant’s motion was based on three affirmative defenses: (1) that defendant’s acts were discretionary and therefore not subject to a mandamus action; (2) that sections 2 — 109 and 2 — 205 of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (Ill. Rev. Stat. 1991, ch. 85, par. 1 — 101 et seq.) expressly immunized defendant from liability for failure to enforce a law; and (3) that plaintiffs’ claims were barred by laches.

We note that on appeal there has been some confusion as to the affirmative defenses in question. In their appellate brief, plaintiffs state that the affirmative defenses raised by defendant in its motion to dismiss were: “the statute of limitations, tort immunity and laches.” However, a careful review of the record shows that the affirmative defenses raised by defendant in its motion to dismiss were those stated above: the applicability of a mandamus action, tort immunity and laches. We will therefore consider the affirmative defenses actually raised by defendant before the trial court as the affirmative defenses in question here.

The trial court denied defendant’s motion to dismiss. The trial court did not indicate if its ruling was on the merits.

Plaintiffs note on appeal that because the trial court did not give any reasons for its summary judgment rulings it is impossible to determine whether the trial court based its summary judgment decision on any of the affirmative defenses in question. Plaintiffs contend that, in the event the trial court did base its decision on any or all of the affirmative defenses in question, the trial court erred.

Plaintiffs argue that section 2 — 619(d) of the Code (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 619(d)) prohibits the subsequent raising of affirmative defenses which a court has previously disposed of on the merits. Plaintiffs assert that in denying defendant’s motion to dismiss the trial court must have ruled on the merits of the affirmative defenses and defendant was therefore precluded from raising these affirmative defenses again in its motion for summary judgment.

Alternatively, relying on Smith v. Powell (1982), 109 Ill. App. 3d 814, plaintiffs argue that even if the trial court did not reach the merits in disposing of the issues raised by the affirmative defenses when it denied defendant’s motion to dismiss, defendant must submit some additional evidence in order for the trial court properly to reconsider affirmative defenses in a motion for summary judgment. Plaintiffs maintain that defendant did not submit any evidence to support the affirmative defenses in question at the summary judgment stage and therefore the trial court could not base its summary judgment decision on those affirmative defenses.

Defendant responds that plaintiffs’ reliance on Smith v. Powell is misplaced. Defendant contends that where the factual requirements for a motion for summary judgment are established a party may raise an affirmative defense in a motion for summary judgment even if the same affirmative defense was previously denied on a motion to dismiss. Defendant asserts that it based its motion for summary judgment on facts contained in an affidavit, public documents on file with the court, and the deposition testimony of plaintiffs. Defendant argues that these facts were not part of its motion to dismiss and that the facts support the affirmative defenses it asserted in its motion for summary judgment. Defendant concludes that it has therefore properly raised the affirmative defenses in question in its motion for summary judgment.

In reference to affirmative defenses, section 2 — 619(d) provides:

“The raising of any of the foregoing matters by motion under this Section does not preclude the raising of them subsequently by answer unless the court has disposed of the motion on its merits; and a failure to raise any of them by motion does not preclude raising them by answer.” (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 619(d).)

Under section 2 — 619(d), where a party has previously raised affirmative defenses by a section 2 — 619 motion and the court has disposed of the motion on its merits, the court has adjudicated all the grounds set forth in the motion and the party cannot raise the affirmative defenses again on the same grounds in a later motion. See Mogul v. Tucker (1987), 152 Ill. App. 3d 610, 612.

Here, the record does not indicate whether the trial court disposed of defendant’s section 2 — 619 motion to dismiss on the merits. Because a court may deny such a motion without reaching the merits, such as when it cannot determine with reasonable certainty that the alleged defense exists or because it concludes the motion may involve disputed factual issues (Sjogren v. Maybrooks, Inc. (1991), 214 Ill. App. 3d 888, 891), we conclude that the denial of such a motion, without more, does not show that the court disposed of the motion on its merits. The plain language of section 2 — 619(d) provides that a party who has raised affirmative defenses in a prior section 2 — 619 motion may raise the same matters again in a subsequent motion “unless the court has disposed of the motion on its merits.” (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 619(d).) Accordingly, we conclude that unless the non-moving party shows that a court disposed of the prior motion on the merits, the moving party may subsequently raise the matters.

The record here does not indicate whether the trial court disposed of defendant’s motion to dismiss on the merits. Under these circumstances, we conclude that section 2 — 619(d) did not preclude defendant from raising the same affirmative defenses in its motion for summary judgment that it raised in its motion to dismiss.

With regard to plaintiffs’ alternative arguments, we find plaintiffs’ authority unpersuasive for the purported principle that a party must submit additional evidence in order to reassert an affirmative defense. In Smith, the plaintiff alleged that the trial court erred when it allowed defendant there to assert a statute of limitations defense in a motion for summary judgment after a prior ruling denying defendant’s motion to dismiss based on a statute of limitations defense. (Smith, 109 Ill. App. 3d at 819.) However, the reviewing court found no trial court error because the trial court had additional evidence before it in its ruling on the motion for summary judgment. (109 Ill. App. 3d at 819.) In Smith, it was clear that the prior ruling had been on the merits. (109 Ill. App. 3d at 818.) Thus, Smith at most stands for the proposition that when a trial court allows a party to reassert a defense after previously ruling on the merits, new evidence is required.

Here, as seen above, the record does not show that the trial court reached the merits when it denied defendant’s motion to dismiss. Consequently, Smith is inapplicable. Furthermore, additional evidence, which was not available when the trial court denied defendant’s motion to dismiss, was available when the trial court granted defendant’s motion for summary judgment.

For all these reasons, we hold that the trial court did not err in its motion for summary judgment ruling if it relied on any or all of the affirmative defenses raised by defendant in its motion to dismiss.

The last issue on appeal is whether the trial court erred when it granted defendant’s motion for summary judgment. We will first set out general principles which govern the granting of a motion for summary judgment.

A court should grant summary judgment when “the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 1005(c).) While the goal of expeditious disposition of a lawsuit by the use of summary judgment is encouraged, summary judgment is a drastic means of disposing of litigation and should only be allowed when the right of the moving party is clear and free from doubt. (Loyola Academy v. S & S Roof Maintenance, Inc. (1992), 146 Ill. 2d 263, 271.) Accordingly, a court ruling on a motion for summary judgment must strictly construe the evidence against the movant and liberally in favor of the nonmoving party. Logan v. Old Enterprise Farms, Ltd. (1990), 139 Ill. 2d 229, 234.

It is well established that in deciding a motion for summary judgment the court may draw inferences from undisputed facts. (Loyola Academy, 146 Ill. 2d at 272.) However, where reasonable persons could draw divergent inferences from undisputed facts, the trier of fact should decide the issues and the summary judgment motion should be denied. Pyne v. Witmer (1989), 129 Ill. 2d 351, 358.

If the record shows that plaintiff has failed to establish an element of a cause of action, summary judgment for defendant is proper. (Town of Avon v. Geary (1991), 223 Ill. App. 3d 294, 298.) To prevent the entry of summary judgment, plaintiff need not prove his case at a preliminary stage, but plaintiff must present facts sufficient to support the elements of his claim. Kuwik v. Starmark Star Marketing & Administration, Inc. (1992), 232 Ill. App. 3d 8, 12.

Each of the seven counts in plaintiffs’ amended complaint alleges that defendant violated one or more ordinances. Each count is predicated on these alleged violations. Hence, under the above principles, if the record shows there are no genuine issues of material fact and the undisputed facts show as a matter of law that defendant did not violate the ordinances as alleged, then the trial court did not err in granting defendant’s motion for summary judgment. Accordingly, the first question before us is whether there are any genuine issues of material fact with respect to the alleged violations. If not, then the next question is. whether the record shows as a matter of law that defendant violated or did not violate the ordinances as alleged.

Plaintiffs’ amended complaint alleges that defendant violated ordinances in two ways: (1) procedural violations, where defendant allegedly failed to follow the procedures mandated by ordinances for approval of the Fields final plat; and (2) nonprocedural violations, where defendant allegedly knew or should have known that its approval of the Fields final plat would violate ordinances related to street design and use. We will determine for each of these sets of allegations whether there are genuine issues of material fact precluding summary judgment and, if not, whether defendant is entitled to summary judgment as a matter of law.

Plaintiffs first allege that defendant failed to follow mandatory procedures in approving the Fields final plat. This allegation is based on plaintiffs’ contention that there were “major changes” to the Fields preliminary plat as evidenced by the proposed Fields final plat.

The City’s Municipal Code provides that “[a] revised preliminary plat of planned unit development and supporting data shall be submitted upon a major change.” (Naperville, Ill., Municipal Code §6 — 4—6.2 (19_).) The Municipal Code also provides that the procedure to be followed when there has been a major change shall be the same procedure used in seeking approval of a preliminary plat. (Naperville, Ill., Municipal Code §6 — 4—6.2 (19_).) That procedure requires a number of specific steps, including a public hearing before the plan commission, notice of the public hearing in a newspaper of general circulation, and written findings of fact. (Naperville, Ill., Municipal Code §6 — 4—4.2 (19_).) It is undisputed that the procedural steps required for the approval of a major change were not completely followed in the Fields final plat approval process.

The Municipal Code defines major changes as “modifications which alter the concept or intent of the planned unit development such as, changes in density, changes in location and type of uses of land *** or alteration in road alignment.” (Naperville, Ill., Municipal Code §6 — 4—6.1 (19_).) The Municipal Code defines minor changes as “changes not defined as major changes and which do not alter the concept or intent of the planned unit development.” (Naperville, Ill., Municipal Code §6 — 4—6.2 (19_).) Unlike major changes, “[mjinor changes shall be approved by the City Council without the review and recommendation of the Plan Commission.” (Naperville, Ill., Municipal Code §6 — 4—6.2 (19_).) The immediate question before us is whether there were genuine issues of material fact related to whether there were major changes.

The parties both contend that there were no genuine issues of material fact related to the question of whether there were major changes in the Fields preliminary plat. We agree. The undisputed facts show that there were changes between the Fields preliminary plat and the Fields final plat. The changes were: (1) changes in the way the north-south street which became River Road is depicted; (2) the removal of a school site; and (3) changes in the width of River Road. The record does not establish the magnitude of any of these three changes, but it seems clear that the road alignment and road width changes were relatively minor. The exhibits which plaintiffs attached to their amended complaint purporting to show the change in road alignment shed little light on the exact nature or magnitude of the change.

Plaintiffs contend that each of these changes was a major change. In their arguments, plaintiffs focus primarily on the road alignment change. Plaintiffs essentially contend that the road alignment change was a major change because it is defined as such in the Municipal Code. Because the Fields final plat approval did not completely follow the procedural steps required for the approval of a final plat after a major change, plaintiffs maintain that defendant violated the ordinance requiring such procedures and that the trial court erred in granting defendant’s motion for summary judgment.

Defendant responds that none of the changes was a major change and therefore it did not violate the procedural ordinance when it approved the Fields final plat. Defendant primarily relies on the affidavit of Walter S. Newman to conclude that none of the changes was a major change.

In his affidavit, Newman, the City’s director of the department of community development and zoning administrator since 1976, stated that his duties include the interpretation of zoning regulations such as those governing PUD plat approval. Newman’s affidavit further stated that the plan commission, after several workshops and meetings which considered the Fields final plat proposal, “determined that the plat was changed for engineering purposes only and was considered to be in conformance to the preliminary plat.” Newman also stated in his affidavit that the Fields final PUD plat “did not alter the concept or the intent of the original planned unit development and is a minor change under section 6 — 4—6 of the Naperville Municipal Code.” Newman also stated that he was authorized by title 7 of the Municipal Code to recommend approval of a final plat to the City’s mayor and City Council if he determined that a final plat was in substantial conformance with a preliminary plat. Newman’s affidavit also stated that “In my opinion the final plat of the Fields Subdivision was in substantial conformance to the preliminary plat as approved.”

Determining whether the changes in question were major changes requires us to construe the City’s Municipal Code. The fundamental rule of statutory construction is to give effect to the intent of the drafters. (State of Illinois v. Mikusch (1990), 138 Ill. 2d 242, 247.) To do that, a court first looks to the language of the statute, and, if the language is clear and unambiguous, the court should give the language effect and not employ extrinsic aids to construction. (In re Marriage of Logston (1984), 103 Ill. 2d 266, 277.) The court must examine the language of the statute as a whole and consider each part or section in connection with every other part or section. (Antunes v. Sookhakitch (1992), 146 Ill. 2d 477, 484.) The construction of a statute or ordinance is a question of law. Monahan v. Village of Hinsdale (1991), 210 Ill. App. 3d 985, 993.

Here, the central provision in question is section 6 — 4—6.1 of the Municipal Code, which provides:

“Major changes are modifications which alter the concept or intent of the planned unit development such as, changes in density, changes in location and type of uses of land, increases in the height of buildings or structures, reduction in the acreage of open space, modification of more than ten percent (10%) in the number of dwelling units in any designated land use area, or alteration in road alignment.” Naperville, Ill., Municipal Code §6 — 4—6.1 (19_).

When section 6 — 4—6.1 is read without reference to other sections of the Municipal Code, it suggests a construction that agrees with the construction urged by plaintiffs. That construction is that any change in road alignment is a major change. However, title 6 of the Municipal Code is subject to title 7 of the Municipal Code in some respects because “[a]ll public improvements shall conform to the regulations and design standards of title 7, Subdivisions, of this Municipal Code.” Naperville, Ill., Municipal Code §6 — 4—3.2 (19_).

Accordingly, section 6 — 4—6.1 must be read in connection with section 7 — 2—5.7. Section 7 — 2—-5.7 authorizes the director of the Department of Community Development (DCD) to “recommend approval of a final plat to the mayor and City Council if the director determines that the final plat is in substantial conformance to the preliminary plat as approved.” (Naperville, Ill., Municipal Code §7 — 2—5.7 (19_).) This section clearly allows for some discretion by the director of DCD in recommending approval for a final plat even though it may contain some changes from a preliminary plat. We conclude that this discretion extends to the specific changes listed in section 6 — 4— 6.1. A contrary conclusion (that there is no discretion with respect to the changes specifically listed) would require the notice and hearing procedure for any change in a specifically listed item. Such a construction would clearly conflict with section 7 — 2—5.7, which is controlling. Such a construction would also be an absurd and inconvenient result, and courts should not construe statutes to lead to such results. Loyola Academy, 146 Ill. 2d at 273.

Applying this construction of the City’s Municipal Code to this case leads us to the conclusion that the changes in question were not major changes and therefore did not require the notice and hearing procedures mandated for major changes. While Newman’s affidavit was addressed primarily to the road alignment change, it also encompassed the school and road width changes. Newman’s affidavit indicated that the Fields final plat, as a whole, did not alter the concept or intent of the preliminary plat and that the Fields final plat changes were minor changes under the Municipal Code.

Plaintiffs argue that Newman’s affidavit was inconsistent with a different DCD recommendation written by Newman to the City Council indicating that a school site change was a major change. We find this argument unpersuasive. Newman’s other recommendation was based on a proposed school change in a different PUD. Under the circumstances of that PUD, Newman concluded that the proposed school change would be a major change because it would alter the concept or intent of the PUD. We disagree with plaintiffs’ position that Newman’s recommendation, based on the facts of another PUD, necessarily means that any school change is a major change. With respect to the road width change, plaintiffs simply did not present any evidence to support their conclusion that the road width change was a major change.

For all these reasons, we conclude, as a matter of law based on the undisputed facts, that there were no major changes in the Fields final plat. Accordingly, defendant did not violate procedural ordinances when it approved the Fields final plat without following the procedures required for a major change.

We turn next to plaintiffs’ allegations of nonprocedural ordinance violations. In their amended complaint, plaintiffs allege that defendant violated mandatory ordinances governing street design and use when defendant approved the Fields final plat.

Plaintiffs claim that defendant violated three ordinances. The first ordinance, the master thoroughfare plan (Naperville, Ill., Municipal Code, title 1, ch. 11 (1985)), was incorporated as part of the official comprehensive plan of the City and contained a map indicating that River Road in the Fields should be a local street. (This indication was by default, because the map did not depict River Road as a higher classification street; River Road was deemed classified by default as a local street.)

The second ordinance in question provides in relevant part:

“The street layout shall conform to the adopted Thoroughfare Plan of the City. The street layout shall recognize the functional classification of the various types of streets and shall be developed and located in proper relation to existing and proposed streets, *** to public convenience and safety, to the proposed use of the land to be served by such streets and to the most advantageous development of adjoining areas.” Naperville, Ill., Municipal Code §7 — 3—3.1.1 (19_).

The third ordinance in question provides that local streets “shall be arranged *** to discourage use by through traffic.” Naperville, Ill., Municipal Code §7 — 4—2.1.5 (19_).

The facts relevant to the issue of alleged nonprocedural ordinance violations are not in dispute. Defendant admitted that the master thoroughfare plan, by default, indicates that River Road in the Fields should be a local street. Defendant also admitted that River Road was designed and actually constructed to local street standards as defined by City ordinances. Defendant further admitted that it has conducted traffic studies which indicate that River Road in the Fields, in 1991, experienced traffic flow in excess of the standards for a local street. Because these facts are not in dispute, we may determine as a matter of law whether defendant violated the ordinances in question and whether, therefore, defendant was or was not entitled to summary judgment on this issue.

Plaintiffs contend that the undisputed facts show that defendant violated the ordinances. On appeal, plaintiffs assert that defendant “violated these ordinances with regard to the extension of River Road by approving a street layout that failed to recognize the functional classification of the existing local street design within the Countryside Subdivision, failed to locate the extension of River Road in proper relation to existing and proposed streets of higher functional classification, failed to consider the safety and convenience of plaintiffs within the Countryside subdivision, encouraged the continuing use of a local street design by through traffic from other parts of Naperville and from areas outside the corporate limits of the city, and not conforming to the Master Thoroughfare Plan of the city.” Plaintiffs also assert that they presented evidence showing that defendant recognized traffic problems on River Road and that defendant therefore knew or should have known that its conduct in approving the Fields final plat would result in ordinance violations.

Defendant responds that the undisputed facts show that defendant did not violate the ordinances in question. Defendant asserts that plaintiffs failed to establish any facts showing noncompliance by defendant with any of the ordinances or any other violations. We agree.

The first ordinance plaintiffs alleged defendant violated was the master thoroughfare plan (MTP). The MTP indicates that River Road in the Fields should be a local street. The undisputed facts show that River Road in the Fields was laid out and constructed as a local street and is classified as a local street. Although plaintiffs imply that there is a kind of ongoing violation of the MTP because the actual vehicle usage on River Road in the Fields exceeds the standards for a local street, plaintiffs have failed to present any evidence supporting such a conclusion. Plaintiffs have not pointed to anything in the MTP itself or anywhere else that even suggests that a change in the usage of a street laid out in conformity with the MTP violates the MTP. Accordingly, we find that the undisputed facts show that defendant did not violate the MTP.

The first sentence of the second ordinance defendant allegedly violated provides: “The street layout shall conform to the adopted Thoroughfare Plan of the City.” (Naperville, Ill., Municipal Code §7 — 3— 3.1.1 (19_).) The record shows that the adopted thoroughfare plan of the City is the MTP. The undisputed facts show that under the MTP River Road in the Fields should be a local street and that River Road in the Fields was actually constructed as a local street. Again, we fail to see how defendant violated the ordinance in question when the ordinance requires that street layout conform to the MTP and River Road in the Fields was in fact laid out and constructed in conformity with the MTP.

Plaintiffs rely on the part of the ordinance following the first sentence for their argument that defendant failed to recognize the functional classification of adjoining streets and failed to locate River Road in proper relation to existing streets and for public convenience and safety. We find that plaintiffs failed to present facts supporting these claims. In addition, as seen above, the ordinance first required plaintiff to follow the MTP which defendant did. Plaintiffs have not argued that the MTP violated other ordinances or was itself invalid. Accordingly, we find that the undisputed facts show that defendant did not violate section 7 — 3—3.1.1 of the Municipal Code.

The last ordinance plaintiffs allege defendant violated is section 7 — 4—2.1.5 of the Municipal Code. This ordinance requires that local streets shall be arranged “to discourage use by through traffic.” (Naperville, Ill., Municipal Code §7 — 4—2.1.5 (19_).) Plaintiffs’ amended complaint alleged that defendant knew or should have known that its approval of the Fields final plat would result in the continuing violation of this ordinance.

We find that plaintiffs have not presented facts sufficient to support this claim. On appeal, plaintiffs argue that they presented evidence showing that defendant recognized that River Road was functioning as a collector street and that defendant recognized a River Road problem and a “River Road syndrome” where an arterial street dumps into a residential area. However, plaintiffs’ evidence does not establish that defendant knew or should have known that its approval of the Fields final plat would result in these problems.

The evidence purportedly showing that defendant knew; River Road was functioning as a collector street is contained in a 1988 interoffice memo which was a follow-up of a City Council deliberation concerning River Road in Countryside. This evidence fails to support the allegations in plaintiffs’ amended complaint because: it is after the fact of the Fields final plat approval which occurred in December 1986; it is in reference to River Road in Countryside rather than the subject of plaintiffs’ complaint, River Road in the Fields; and the interoffice memo taken as a whole shows that when defendant realized there were problems with traffic ón River Road in Countryside defendant responded with reasonable attempts to solve the problem including various alternative solutions with particular attention to child safety.

The evidence purportedly showing that defendant was aware of a River Road problem or River Road syndrome is based on a 1989 plan commission public hearing meeting concerning revisions to the MTP. This evidence suffers from the same deficiencies as the collector street evidence seen above. This evidence also arose after the approval of the Fields final plat and therefore does not support a conclusion that defendant knew or should have known of it when the final plat was approved. This evidence also does not deal directly with River Road in the Fields. Rather, the evidence specifically concerns River Road in Countryside, so that even if it was timely its relevance is doubtful. In addition, the evidence again shows that when defendant realized there were problems of this type defendant took reasonable steps to try to solve the problems.

For these reasons, we conclude that the undisputed facts show that defendant did not violate section 7 — 4—2.1.5 of the Municipal Code.

Based on the foregoing, we conclude that the undisputed facts of this case, construed liberally in favor of plaintiffs, show that defendant did not violate any of the ordinances plaintiffs’ amended complaint alleges defendant violated. Because these alleged violations are essential elements in each count of plaintiffs’ amended complaint, we conclude that the trial court did not err when it granted defendant’s motion for summary judgment. Because of our finding with respect to the alleged ordinance violations, it is not necessary for us to address the affirmative defenses the trial court might have considered.

The trial court’s order granting defendant’s motion for summary judgment is affirmed.

Affirmed.

WOODWARD and QUETSCH, JJ., concur.


author: JUSTICE QUETSCH

text:
    HOME STATE BANK/NATIONAL ASSOCIATION, Plaintiff-Appellee and Cross-Appellant, v. RALPH POTOKAR, Defendant (Raymond Salm, Citation Respondent-Appellant and Cross-Appellee).
    Second District
    No. 2—92—0949
    Opinion filed August 5, 1993.

      Kirk L. Miller, of Law Offices of Kirk L. Miller, of Highland Park, for appellant.
    Andrew T. Freund and Valeree D. Marek, both of Zukowski, Rogers, Flood & McArdle, of Crystal Lake, for appellee.
   JUSTICE QUETSCH

delivered the opinion of the court:

This appeal and cross-appeal arise from orders entered during the course of supplementary proceedings in connection with a lawsuit by plaintiff, Home State Bank/National Association (the bank), against defendant, Ralph Potokar, seeking recovery on a promissory note. Raymond Salm appeals from an order of the circuit court of McHenry County that held that an assignment by Potokar to Salm of stock in MacNair Development, Inc. (MacNair), was void and directed MacNair and its corporate secretary to turn over amounts representing dividends on the stock to the bank. The bank cross-appeals from an order of the circuit court granting Salm’s motion to strike the bank’s request for a determination of attorney fees.

The relevant facts are as follows. The bank filed its complaint in this action on April 30, 1990, seeking recovery of amounts due under a promissory note executed by Potokar. The promissory note expressly provided that Potokar “agree[d] to pay reasonable attorney’s fees, costs and expenses incurred by [the bank] in the collection and enforcement of this Note,” and the bank requested an award of attorney fees and costs of suit in its complaint.

On January 7, 1991, on an oral motion by the bank, the trial court held Potokar to be in default due to his failure to appear at the law. jury trial conference call. Two days later, however, the circuit court vacated the default judgment and entered an agreed order governing payment of the promissory note. Paragraph 1 of the agreed order set forth a schedule for payment of the promissory note and attorney fees and costs incurred in the litigation up to January 15, 1991. The agreed order further provided that judgment would not be entered against Potokar at that time, but that should Potokar breach the terms of the agreed order, amounts due thereunder would be accelerated and, on petition by the bank, judgment would enter in its favor for the amount outstanding. The agreed order also provided that the bank “shall be entitled to reasonable attorneys’ fees and costs relating to the enforcement of the agreement herein” and that the circuit court would “retain jurisdiction over this matter until the sums stated in paragraph 1 above have been fully satisfied by Defendant.”

On April 15, 1991, the bank moved for the entry of judgment against Potokar pursuant to the agreed order, on the basis that Potokar had failed to make certain payments required under the agreed order. In its motion the bank also requested attorney fees and costs. The trial court granted the motion on the same day and entered an order stating that judgment was entered against Potokar in- the amount of $29,170.72 plus interest, costs and attorney fees. The April 15, 1991, order did not, however, specify the amount of attorney fees and costs, nor did it expressly reserve jurisdiction over the matter of fees and costs or schedule further proceedings relative to fees and costs.

Thereafter, the bank instituted supplementary proceedings, serving Potokar with a citation to discover assets on June 14, 1991, commanding his appearance for examination and prohibiting him from transferring or otherwise disposing of nonexempt property. During examination pursuant to the citation, Potokar indicated that he was a plaintiff in a lawsuit pending in the United States District Court for the Northern District of Illinois. Accordingly, on September 3, 1991, the bank filed a motion pursuant to section 2 — 1402(b)(5) of the Civil Practice Law (735 ILCS 5/2 — 1402(b)(5) (West 1992)) seeking an order requiring Potokar to assign it the Federal court cause of action “in order to satisfy Plaintiff’s Judgment.” The trial court granted the motion. Its order, dated September 3, 1991, provided that Potokar was “ordered to assign any interest or right that he may have [in the Federal court cause of action] to satisfy Plaintiff’s judgment awarded herein.”

Additionally, on September 19, 1991, the trial court entered an order requiring Potokar to turn over the proceeds from his Federal court lawsuit. The order further provided that it constituted a lien on such proceeds to be imposed upon the attorney for the defendants in that lawsuit. An order entered on December 30, 1991, again required Potokar to assign his interest in the Federal court action to the bank. Potokar ultimately delivered a written assignment to the bank in January 1992. After the delivery of the assignment, judgment was entered in the plaintiff’s favor in the Federal court action. Potokar’s share of the judgment was $360,000. The record establishes that this judgment had not been collected as of June 1992.

During the supplementary proceedings, the bank learned of Potokar’s interest in and involvement with MacNair. Both Potokar and Raymond Salm had been shareholders and directors of MacNair, and Potokar had been president of MacNair since its formation. In May 1991, MacNair had directed the sale of certain real property held in a land trust for a purchase price of $782,000, payable in three installments, the second of which was in the amount of $226,000 and was due on March 20, 1992. MacNair planned to distribute the second and third installments to its shareholders as a dividend on their stock. The bank also discovered that on July 6, 1991, subsequent to having been served with the citation to discover assets, Potokar had assigned his shares of stock in MacNair to Raymond Salm as security for payment of a promissory note in the amount of $95,000.

On March 6, 1992, the bank served a citation to discover assets on MacNair’s corporate secretary, and on April 14, 1992, the bank filed a “Motion for Turnover of Assets,” seeking an order requiring MacNair to turn over the dividends payable on the stock assigned by Potokar to Salm. The motion asserted that the transfer of the stock constituted a fraud against the bank and was therefore void. An evidentiary hearing on the turnover motion was conducted, and, on May 12, 1992, the trial court issued a memorandum opinion finding that the assignment of Potokar’s stock to Salm violated section 6(b) of the Uniform Fraudulent Transfer Act (740 ILCS 160/6(b) (West 1992)) and holding that the bank was entitled to the relief requested in the turnover motion. The trial court directed the bank’s attorneys to prepare an order consistent with the memorandum opinion.

On May 26, 1992, the bank filed a petition seeking a determination of the allowable amount of interest, attorney fees and costs as awarded by the court in its order of April 15, 1991. Salm moved to strike the petition asserting, inter alia, that the trial court lacked jurisdiction to consider the request for attorney fees since more than 30 days had passed since the entry of judgment against Potokar on April 15, 1991. On June 25, 1992, the trial court granted Salm’s motion in part, striking only the bank’s request for a determination of attorney fees. On July 13, 1992, the court entered an order awarding the bank costs in the amount of $638.50, and directing MacNair to turn over the sum of $33,073.48 to the bank. The present appeal and cross-appeal followed.

Salm contends on appeal that the judgment against Potokar was satisfied by the assignment to the bank of Potokar’s interest in the lawsuit then pending in Federal court in which Potokar was a plaintiff. In support of his argument, Salm points to certain language in the bank’s motion seeking the assignment and language in the written assignment Potokar delivered to the bank, as well as certain conduct by the bank during the course of the supplementary proceedings.

Generally, the only way in which a money judgment can be satisfied is by payment in money unless the parties agree otherwise. (Heller v. Lee (1985), 130 Ill. App. 3d 701, 702, citing A D A Enterprises Inc. v. Thompson (1965), 26 Wis. 2d 269, 132 N.W.2d 244; 47 Am. Jur. 2d Judgments §985 (1969).) Whether an agreement to satisfy a judgment has been concluded is a question of fact for the trial court. (Russell v. Klein (1975), 33 Ill. App. 3d 1005, 1008.) Issues of fact concerning satisfaction of judgments are best left to be resolved by the trial court. (Marks v. L.C.J. Construction Co. (1980), 89 Ill. App. 3d 418, 422.) The trial court’s judgment will not be disturbed unless against the manifest weight of the evidence. Marks, 89 Ill. App. 3d 418; see also Bee Jay’s Truck Stop, Inc. v. Department of Revenue (1980), 86 Ill. App. 3d 7, 11 (“manifestly erroneous” standard is applicable in garnishment proceedings).

Salm contends that the bank agreed to accept the assignment of Potokar’s cause of action in satisfaction of its judgment. Salm initially notes that the bank, in its motion seeking the assignment, requested that the court order the assignment “in order to satisfy” the bank’s judgment. We do not find any indication in this language that the bank agreed to take the assignment in full satisfaction of its judgment. The motion does not state that the assignment would be taken “in satisfaction” of the judgment. The language used simply expresses the bank’s purpose in seeking the assignment. Nothing in the bank’s motion in any way suggests that the bank agreed to relinquish its right to obtain full payment of the judgment.

Salm also points out that, although the trial court, in its order of September 19, 1991, created a lien on the proceeds of the Federal court lawsuit, the bank continued to demand an assignment from Potokar. Salm argues that, since the bank already had a lien as a result of the September 19, 1991, order, the bank took the assignment not merely as security for payment of the judgment, but in satisfaction of the judgment. We believe, however, that the bank was simply acting with diligence and caution in its efforts to collect the judgment. When Potokar did not deliver the assignment, as ordered by the trial court, the bank apparently was concerned about its ability to reach the proceeds of the Federal court litigation, should they actually be distributed to Potokar, and the September 19, 1991, order was an attempt to obtain control over any potential recovery in Potokar’s lawsuit before Potokar did. While the order imposing a lien might arguably be viewed as serving the same function as the assignment, it was reasonable for the bank, in the exercise of due caution, to accept additionally the written assignment provided for in the trial court’s earlier order. It is not necessary to conclude that the bank accepted the written assignment for a distinct purpose. We therefore reject Salm’s contention that the assignment was necessarily taken in satisfaction of the judgment.

Salm also points to language in the written assignment as evidence that it was accepted in satisfaction of the judgment, and not merely as security. The assignment provides, in pertinent part:

“The above Assignment is made by Assignor pursuant to 2— 1401(b)(5) of the Code of Civil Procedure *** and for good and valuable consideration, receipt of which is hereby acknowledged.
The intent of this instrument is to transfer to Assignee the above-described claims and to confer on it the right in full power in its absolute discretion to dispose of the above-described claims at any time.”

Salm argues that this language suggests an “unconditional” transfer rather than a transfer for security. While the language used in the assignment may have some of the flavor of an absolute transfer, we do not find it to be inconsistent with a security transaction. The rights conferred on the bank by the assignment are appropriate to enable the bank to reduce the Federal cause of action to a sum of money to be applied to the judgment.

In any event, even to the extent the language may suggest an absolute transfer, this alone is dispositive of the nature of the transaction. For example, in Heller v. Lee (1985), 130 Ill. App. 3d 701, the defendant posted an appeal bond consisting of, inter alia, a deed to real property and following affirmance of the judgment against the defendant, the trial court granted the plaintiffs’ motion to release the bond and the plaintiffs took title to the property instead of compelling a sheriff’s sale. In a subsequent appeal, the court accepted the plaintiffs’ argument that they took the property as security for eventual cash payment of the judgment rather than in satisfaction of the judgment. (130 Ill. App. 3d at 703.) The assignment in the present case is no more absolute in character than the deed to real property in Heller, and, therefore, the trial court did not err in viewing the assignment as securing payment of the judgment. We note that in Heller the court required the plaintiffs to foreclose upon the property and apply the proceeds to the judgment, since it would be inequitable to permit the plaintiffs indefinitely to have the use and enjoyment of a valuable piece of property while proceeding with collection activities against other property of the defendants. (130 Ill. App. 3d at 703.) This concern is inapplicable in the present case since, unlike a parcel of real property, the assignment of Potokar’s Federal court action is of no benefit to the bank except as a source of money to be applied to the judgment against Potokar.

Salm also contends that the consideration recited in the written assignment can only refer to the bank’s agreement to accept the assignment in satisfaction of the judgment. We disagree. The recital of consideration might merely have been included in the document as a matter of form as is customary in such documents in business transactions. Alternatively, the recital of consideration might simply have been intended to reflect that the assignment was given for value insofar as amounts collected pursuant to the assignment would reduce the judgment against Potokar pro tanto.

Finally, Salm argues that because the bank stated in its motion requesting the assignment that it sought the assignment “in order to satisfy” the judgment against Potokar, the bank is barred by the doctrine of judicial estoppel from denying that the judgment was satisfied by the assignment. Alternatively, Salm argues that the statement constitutes a binding judicial admission that the judgment was satisfied. We have already rejected Salm’s interpretation of this language, and we likewise reject the arguments based on the judicial estoppel and judicial admission doctrines.

The language and circumstances Salm relies upon at most support only a weak inference that the bank agreed to accept the assignment of Potokar’s interest in the Federal court action in full satisfaction of the judgment against Potokar. Salm has failed, however, adequately to explain why the bank would voluntarily relinquish its right to pursue further collection efforts upon merely receiving assignment of part of a cause of action not then reduced to judgment and of uncertain ultimate value. Although a judgment was later recovered in the Federal court action, and Potokar’s share was sufficient to pay the bank’s judgment against him, nothing in the record suggests that the judgment in the Federal case has been collected.

Moreover, we note that pursuant to the terms of the written assignment the bank’s rights with respect to the Federal court action were limited to the amount of its judgment against Potokar. In a consensual settlement with Potokar, the bank might hypothetically have accepted an assignment of Potokar’s entire interest in the full amount of his recovery in the Federal court lawsuit, in which case the possibility that the Federal court action would yield a surplus above the amount of the bank’s judgment against Potokar might serve as consideration supporting the bank’s agreement to forego further recourse against Potokar and his property.

In this case, there, was no voluntary agreement. The assignment by Potokar was given under compulsion pursuant to the statutory mechanism for collection of judgments. The bank stood to gain no more from the assignment than that to which it was entitled, but faced the risk of an adverse, inadequate or uncollectible judgment. We can see no reason why the bank would accept the assignment in lieu of all other recourse against Potokar and his property. Salm suggests in his reply brief that the bank would do so because it believed that Potokar was insolvent, and the bank “decided to take something, [the assignment,] rather than nothing.” However, the bank was entitled to demand the assignment without abandoning its right to pursue further collection efforts. If the bank did relinquish such rights, as Salm claims, it acted out of charity or despair. We find this to be unlikely. Given these circumstances, we do not find the facts and inferences relied upon by Salm to be persuasive. The trial court’s order requiring MacNair to turn over dividends payable on the stock assigned to Salm is not against the manifest weight of the evidence and will be affirmed.

We next consider the bank’s cross-appeal from the trial court’s order of June 25, 1992, striking the bank’s request for a determination of attorney fees. During the proceedings below, Salm argued, as he now does on appeal, that the bank’s request for a determination of attorney fees, filed more than 30 days after the entry of judgment against defendant in the underlying action, was untimely, and accordingly, the trial court lacked jurisdiction to make the requested determination. The bank argues on appeal that contrary to Salm’s assertion, the request for attorney fees was not an attempt to amend or modify the judgment in the underlying action. The bank further asserts that the trial court retained jurisdiction with respect to attorney fees, noting language in the judgment, order of April 15, 1991, and in the agreed order of January 9, 1991. We agree with the bank that the trial court had jurisdiction to determine the amount of attorney fees to which the bank was entitled.

Initially, we note that contract provisions for awards of attorney fees and costs are an exception to the general rule that absent a statute which provides otherwise a successful party is not entitled to recover attorney fees. (Abdul-Karim v. First Federal Savings & Loan Association (1984), 101 Ill. 2d 400, 411-12; La Hood v. Couri (1992), 236 Ill. App. 3d 641, 648; Grossinger Motorcorp, Inc. v. American National Bank & Trust Co. (1992), 240 Ill. App. 3d 737, 752; Daiwa Bank, Ltd. v. La Salle National Trust, N.A. (1992), 229 Ill. App. 3d 366.) That the terms of the promissory note underlying this action entitle the bank to recovery of reasonable attorney fees and costs is not in dispute. The sole basis for Salm’s challenge to the bank’s request for fees was the timeliness of the request.

Salm contends that the bank’s request to determine allowable attorney fees was an attempt to modify or amend the judgment against defendant entered on April 15, 1991. Salm argues that the trial court lost jurisdiction to modify or amend the judgment after the passage of 30 days following its entry. It is well established that, in general, a trial court loses jurisdiction to vacate or modify its judgment 30 days after entry of judgment unless a timely post-judgment motion is filed. (Beck v. Stepp (1991), 144 Ill. 2d 232, 238; In re Marriage of Agustsson (1992), 223 Ill. App. 3d 510, 515.) This principle has been applied to bar requests for attorney fees and costs made after the trial court has lost jurisdiction due to the passage of time. In People ex rel. Madison Chemical Corp. v. Gurrie (1964), 52 Ill. App. 2d 360, the plaintiff in a mandamus action claimed interest, costs and damages in its original petition, but neither requested these items at the time judgment was entered, nor moved that the court reserve jurisdiction for that purpose. More than three months after the the entry of judgment, the plaintiff filed a motion to assess damages and costs. On appeal, the court held that “[sjince the petition for costs and fees was not filed within thirty days of the entry of the judgment and since jurisdiction was not retained by the court, the trial court correctly held that it was without jurisdiction to modify the judgment and the petition to modify was properly dismissed.” (52 Ill. App. 2d at 364.) In Eugene Matanky & Associates, Inc. v. Onixt (1966), 74 Ill. App. 2d 53, the court in reliance upon Gurrie held that a petition for attorney fees as a sanction for untrue statements in an opposing party’s pleadings was untimely when filed more than 30 days after judgment was entered. (See also Ford Hopkins Co. v. Faber (1970), 121 Ill. App. 2d 143; Harlem Savings Association v. Lesniak (1970), 121 Ill. App. 2d 137, 142; accord Touchdown Sportswear, Inc. v. Hickory Point Mall Co. (1987), 165 Ill. App. 3d 72 (notwithstanding failure to reserve issue of attorney fees prior to closing of proofs, where fees were pleaded, petition for attorney fees filed within 30 days of judgment was timely).) We find these cases to be distinguishable. In none of these cases did the trial court’s judgment rule favorably for the party seeking attorney fees on any part of the fee issue. In the present case the trial court did award attorney fees in its judgment order, but did not set forth the amount. While the order did not expressly reserve jurisdiction to determine the amount of fees, we believe the the order must be given that effect.

In those cases where fee requests have been held to be untimely, the issue of fees was not properly before the court at the time the judgment was entered. Here, in contrast, the bank requested an award of attorney fees and costs in its motion for entry of judgment. Since the trial court awarded fees in an unspecified amount, the amount of the allowance was a matter properly before the court that remained undisposed of. Cf. Ford Hopkins Co. v. Faber (1970), 121 Ill. App. 2d 143, 147 (although defendant moved that master tax costs, including attorney fees, where no exception was taken to failure of master’s report to recommend taxation of costs, the issue was not one that “simply remained undisposed of”).

Indeed we believe that because the trial court awarded attorney fees and costs in its order of April 15, 1991, but failed to specify their amount, the order did not constitute a final judgment as to all claims in the case and was thus subject to modification prior to the entry of a final judgment. See Catlett v. Novak (1987), 116 Ill. 2d 63, 68; Leopold v. Levin (1970), 45 Ill. 2d 434, 446.

Where a judgment disposes of fewer than all claims and lacks a finding of no just reason to delay enforcement or appeal pursuant to Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)), it is subject to revision before the entry of a judgment that does in fact adjudicate all claims and liabilities of the parties. (Towns v. Yellow Cab Co. (1978), 73 Ill. 2d 113, 120.) Requests for attorney fees pursuant to a contract constitute a claim within the meaning of Rule 304(a). (Northern Trust Co. v. Upjohn Co. (1991), 213 Ill. App. 3d 390, 397, citing Mars v. Priester (1990), 205 Ill. App. 3d 1060.) Since the order of April 15, 1991, did not dispose of the bank’s claim for attorney fees and costs, and did not contain a special finding under Rule 304(a), it was in all respects interlocutory.

The decision in Mars v. Priester (1990), 205 Ill. App. 3d 1060, which, like the present case, involved a contractual fee provision, is instructive. In Mars, on September 6, 1989, the trial court entered an order entering judgment in the plaintiff’s favor, awarding attorney fees and costs in an undetermined amount, and setting a hearing to consider a petition for fees and costs. More than 30 days after the entry of the September 6, 1989, order, but prior to the determination of the amount of fees and costs, the plaintiff moved for reconsideration of the amount of the judgment on the principal claim. On appeal, the court considered whether the motion for reconsideration was timely so as to extend the period for filing a notice of appeal until 30 days after the disposition of the motion for reconsideration. The court concluded that the request for attorney fees was a “claim” for purposes of Rule 304(a) and, therefore, because the order of September 6, 1989, left the amount of attorney fees and costs undetermined, it did not resolve all the claims in the case and was not a final judgment. Thus the motion for reconsideration was timely even though filed more than 30 days thereafter. The court observed:

“The attorney fees claim meets all of the criteria set out in Rule 304(a). It is a matter involved in the action; it is a possible right of the plaintiff and a possible liability for defendant. [Citations.] Because the request for attorney fees and costs is a ‘claim’ under Rule 304(a), it is not an issue incidental to the merits of the case. Therefore, the September 6, 1989, order was not a final judgment.” Mars, 205 Ill. App. 3d at 1064, citing Hernandez v. Fahner (1985), 135 Ill. App. 3d 372.

Hise v. Hull (1983), 116 Ill. App. 3d 681; cf. Servio v. Paul Roberts Auto Sales, Inc. (1991), 211 Ill. App. 3d 751, 760, citing Szabo v. United States Marine Corp. (7th Cir. 1987), 819 F.2d 714, 717 (under Federal practice, where the judgment sought to be appealed from includes an order to pay attorney fees, but leaves the calculation of those fees for a later date, the judgment is not final for purposes of Federal appellate jurisdiction).

The result in Mars governs the disposition of the present case. The bank’s request for attorney fees and costs based upon the provisions of the promissory note was a claim in the case which was not fully disposed of by the order of April 15, 1991, which merely adjudged Potokar liable for attorney fees and costs but did not set the amount. While in Mars the trial court did set a hearing to determine fees and costs, we do not find this circumstance to be of consequence. In the present case, the trial court’s order of April 15, 1991, left the bank’s claim for attorney fees and costs pending. There was no final judgment adjudicating all claims and liabilities of the parties in this case until after the entry of the trial court’s subsequent orders striking the bank’s request for a determination of attorney fees on June 25, 1992, and calculating the amount of costs on July 13, 1992. The trial court had jurisdiction over the case at the time the bank made its request for a determination of attorney fees, and accordingly the trial court erred in striking the request.

We recognize that our determination that the order of April 15, 1991, was not a final judgment calls into question the propriety of the supplementary proceedings that led to the turnover order at issue in Salm’s appeal. Since that order lacked a special finding under Rule 304(a), it was not subject to enforcement, and there is authority that under such circumstances supplementary proceedings were improper. (See Cochran v. Howell (1964), 46 Ill. App. 2d 304 (abstract of opinion).) However, at no point was any objection to the supplementary proceedings made on this basis, and we will not consider the possibility of error on this basis sua sponte.

For the foregoing reasons, the order of July 13, 1992, directing the turnover of dividends on stock assigned by Potokar to Salm is affirmed. The portion of the order of June 25, 1992, striking the bank’s request to determine attorney fees is reversed, and the cause is remanded.

Affirmed in part; reversed in part and remanded.

McLAREN and GEIGER, JJ., concur.


author: PRESIDING JUSTICE TULLY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. THOMAS MEDEIROS, Defendant-Appellant.
    First District (3rd Division)
    No. 1—91—0669
    Opinion filed June 30, 1993.
    Rehearing denied August 12, 1993.
    David P. Sterba, of Orland Park, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Donald T. Lyman, and Bennett E. Kaplan, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE TULLY

delivered the opinion of the court:

After a jury trial, defendant Thomas Medeiros was convicted of first degree murder in violation of section 9 — 1(a)(1) of the Criminal Code of 1961 (Ill. Rev. Stat. 1989, ch. 38, par. 9 — 1(a)(1) (now 720 ILCS 5/9 — 1(a)(1) (West 1992))). Judgment was entered on the verdict and defendant was sentenced to serve a term of 22 years’ imprisonment. It is from the judgment of conviction that defendant now appeals to this court pursuant to Supreme Court Rule 603. 134 Ill. 2d R. 603.

On appeal, defendant argues that: (1) he was denied a fair trial as a result of the cumulative impact of allegedly improper and prejudicial remarks made by the prosecution during closing argument; and (2) he was not proven guilty beyond a reasonable doubt.

For the reasons which follow, we affirm.

One fact in this case remains uncontroverted: On September 21, 1989, Kenny Wayne was shot dead by a bullet fired from defendant’s revolver. The State maintains that defendant killed Wayne while being involved in a drug deal that went awry. Defendant asserts that Wayne was accidentally shot by a stray bullet fired while he was in the process of attempting to make a lawful arrest of another individual, while off duty from his - responsibilities as a Marrionette Park police officer.

Before addressing defendant’s assertion that he was denied a fair trial due to the allegedly improper prosecutorial remarks, we must address the State’s contention that defendant has waived review of these complained-of remarks. Speaking to this issue, the Illinois Supreme Court has held that, absent plain error, “[b]oth a trial objection and a written post-trial motion raising the issue are required for alleged errors that could have been raised during trial.” (Emphasis in original.) (People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124, cert. denied (1988), 488 U.S. 917, 102 L. Ed. 2d 263, 109 S. Ct. 274; see also People v. Nevitt (1990), 135 Ill. 2d 423, 441, 553 N.E.2d 368; People v. Adams (1985), 109 Ill. 2d 102, 116, 485 N.E.2d 339, cert. denied (1986), 475 U.S. 1088, 89 L. Ed. 2d 730, 106 S. Ct. 1476.) Furthermore, it is not sufficient to merely refer to a cited error in a post-trial motion as “prejudicial,” “inflammatory” or “erroneous” without factual detail; doing so is inadequate to preserve an issue on appeal. People v. Phillips (1989), 186 Ill. App. 3d 668, 682, 542 N.E.2d 814; People v. Pendelton (1989), 185 Ill. App. 3d 768, 777, 542 N.E.2d 386; People v. David (1986), 141 Ill. App. 3d 243, 261, 489 N.E.2d 1124.

With respect to the prosecutor’s allegedly improper remarks, we find that defendant has waived this issue. In his post-trial motion, defendant merely states that “[t]he Defendant was prejudiced and deprived of a fair trial as the result of improper and inflammatory arguments made by the State before the jury.” We find this general averment of error to be woefully inadequate to sufficiently apprise the trial court of the cited error and, therefore, the issue is deemed waived. David, 141 Ill. App. 3d at 261.

We now turn to the greater issue of whether defendant was proven guilty beyond a reasonable doubt. After a careful review of the evidence presented at trial and the record on appeal, we conclude that there is more than sufficient evidence from which the jury could have concluded that defendant, without lawful justification, committed an act which created a strong probability of killing and did, in fact, kill Kenny Wayne. The jury chose to believe the State’s version of the incident. While defendant’s story is quite different, it is the function of the jury to determine the credibility of witnesses and resolve conflicts. (People v. Jordan (1960), 18 Ill. 2d 489, 165 N.E.2d 296.) A reviewing court will disturb a finding of guilt only where the evidence is unreasonable, improbable, or so unsatisfactory as to justify a reasonable doubt of the defendant’s guilt. (People v. Crews (1967), 38 Ill. 2d 331, 231 N.E.2d 451.) In the case sub judice, the evidence leaves no reasonable doubt of defendant’s guilt.

In light of the foregoing, the judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.

RIZZI and CERDA, JJ., concur.