author: JUSTICE KNECHT

text:
      In re MARRIAGE OF MARK A. KLEIN, Petitioner-Appellant, and JONI K. KLEIN, Respondent-Appellee.
    Fourth District
    No. 4—91—0789
    Opinion filed June 29, 1992.

      Jack C. Vieley, of Peoria, for appellant.
    G. Patrick Riley, of Harrod Law Firm, P.C., of Eureka, for appellee.
   JUSTICE KNECHT

delivered the opinion of the court:

Petitioner Mark A. Klein appeals from the Woodford County circuit court’s disposition of marital property. He alleges the court erred by (1) awarding maintenance to respondent Joni K. Klein although she was cohabiting; (2) requiring petitioner to pay $1,150 towards respondent’s attorney fees; and (3) allocating as debt to petitioner only a $2,000 loan made during the parties’ marriage to be used as a down payment on their marital home. We reverse the trial court’s maintenance award and remand for further consideration consistent with this ruling.

The parties were married in 1985. No children were born or adopted during their marriage. They were granted a dissolution on January 29, 1991. Hearings on disposition of the marital property were held on July 29 and August 2, 1991. During the hearings, petitioner testified he was employed as a salesperson by Martin Equipment Company of Illinois located in Goodfield, Illinois. He testified his base pay was $125 weekly plus commission. The dissolution made it difficult for him to work and he could not predict what his future earnings would be. Records submitted by him show his gross pay in 1988 as $51,267.83, in 1989 as $69,203.44, and in 1990 as $50,965.95. His pay stub for the pay period ending July 17, 1991, indicated his year-to-date gross earnings in 1991 were $25,218.31.

Respondent testified she was currently employed by a doctor in Toluca, Illinois, and by Roanoke Apostolic Christian Home in Roanoke, Illinois. Her pay stubs showed her gross income every two weeks was $742. In addition, she testified she earned a maximum of $80 weekly from the home in Roanoke, Illinois. The parties’ tax records indicated respondent’s gross pay in 1988 was 21,552.43, in 1989 it was $17,057.64, and in 1990 it was $17,195.26.

Respondent’s testimony about her current earnings was not precise. She testified she worked 72 hours every two weeks and grossed $742. Her pay stubs indicated the following gross wages: January 23, 1991, $715; March 9, $750; April 6, $752.50; April 20, $697.50; May 4, $732.50; June 29, $682.50; and July 13, $742.50. Respondent also submitted into evidence a pay stub showing her year-to-date gross earnings of $2,415.78 from the Apostolic Christian Home of Roanoke. From this evidence and respondent’s testimony, her earnings could not have exceeded $12,755.78 from January 1 through July 13, 1991. This includes her pay stubs submitted into evidence and assumes respondent grossed $752.50 when she worked the maximum hours. The $12,755.78 figure also includes an estimate of $5,267.50 representing earnings from periods not covered by the check stubs submitted.

The parties agreed respondent would receive the marital residence subject to the mortgage. Both testified petitioner’s parents loaned them $8,000 toward the purchase of their home. They currently owed a balance of $2,000 on this loan. During the hearing, respondent’s counsel conceded she was currently cohabiting. The only testimony on this issue was by respondent. She stated that the man she had been dating for approximately eight months sometimes stayed at her home for a week at a time. They had been sexually intimate. He currently stayed at her home regularly. He did not pay respondent a rental fee or for food he consumed while at respondent’s home. Respondent explained she paid all expenses because it was her home and cooking for two people costs no more than cooking for one.

After the hearing, the court filed a written property distribution order. The judge assigned the following liabilities to respondent: Mastercard, $3,699 and real estate taxes totalling $1,135.51. A $2,000 loan balance to petitioner’s parents for a down payment on the parties’ marital home and an outstanding Visa bill of $1,968 were assigned to petitioner as liabilities.

Before awarding monthly rehabilitative maintenance to respondent in the amount of $400 monthly for 52 months, the judge considered petitioner’s argument that respondent waived any right to maintenance because she was cohabiting. The judge noted cases submitted by petitioner in support of his argument did not bar future maintenance. Rather, the judge reasoned cohabitation after the award of maintenance could extinguish the party’s right to maintenance. The judge also ordered petitioner to pay $1,150 of respondent’s total attorney fees bill of $2,034.50.

Petitioner first argues because respondent was cohabiting the judge erred by awarding her maintenance. He directs us to section 510(c) of the Illinois Marriage and Dissolution of Marriage Act (Act), which states the obligation to pay future maintenance terminates “upon the death of either party, or the remarriage of the party receiving maintenance, or if the party receiving maintenance cohabits with another person on a resident, continuing conjugal basis.” (Ill. Rev. Stat. 1989, ch. 40, par. 510(c).) Because respondent’s counsel conceded that she was cohabiting, petitioner reasons he should not have been directed to pay maintenance.

Requiring him to pay maintenance, he contends, forces him to impliedly support the living expenses of his ex-spouse’s lover at the marital home. He directs us to cases in which future maintenance was terminated when the recipient of the maintenance was cohabiting. In re Marriage of Sappington (1985) 106 Ill. 2d 456, 467, 478 N.E.2d 376, 381; In re Marriage of Stanley (1985), 133 Ill. App. 3d 963, 979, 479 N.E.2d 1152, 1162-63; In re Marriage of Roofe (1984), 122 Ill. App. 3d 56, 60, 460 N.E.2d 784, 786; In re Marriage of Lowe (1981), 101 Ill. App. 3d 317, 319, 427 N.E.2d 1367, 1369.

Respondent cites In re Marriage of Hart (1990), 194 Ill. App. 3d 839, 551 N.E.2d 737, for her argument the court did not abuse its discretion in awarding her maintenance. She quotes a statement in Hart: “Marital misconduct and morality are not considered. ‘[T]he standard of living established during the marriage’ is a proper consideration.” (Emphasis omitted.) (Hart, 194 Ill. App. 3d at 851, 551 N.E.2d at 744.) Cohabitation was not at issue in Hart and the court’s observation does not control this case. Moreover, a determination that maintenance should be denied when the party requesting it is cohabiting is not based on the morality of cohabitation.

The propriety of a maintenance award is within the trial court’s discretion and should not be disturbed unless the court abused its discretion. (In re Marriage of Cheger (1991), 213 Ill. App. 3d 371, 378, 571 N.E.2d 1135, 1140; Hart, 194 Ill. App. 3d at 851, 551 N.E.2d at 744.) Based on statutory interpretation, and for public policy reasons, the trial court’s maintenance award to respondent must be reversed.

Respondent concedes if she continued to cohabit after the entry of the court’s order, section 510(c) of the Act authorizes termination of her maintenance award. She argues, however, that cohabitation should not be considered in deciding whether to grant maintenance because section 504 of the Act, which delineates the factors a court should consider in determining whether maintenance is warranted, does not include as a factor whether the party seeking maintenance is cohabiting. (Ill. Rev. Stat. 1989, ch. 40, par. 504.) Section 504 indicates the factors a court should consider are not limited to those delineated. It states, “after consideration of all relevant factors, including [those delineated].” Ill. Rev. Stat. 1989, ch. 40, par. 504(b).

In addition, section 510(c) delineates when the “obligation to pay future maintenance is terminated.” (Ill. Rev. Stat. 1989, ch. 40, par. 510(c).) There should be no distinction between whether petitioner’s obligation is terminated before it ripens or after maintenance is ordered. If a party died before maintenance was awarded, or if a party remarried before the award, there would be no reason for awarding maintenance only to then require it to be terminated pursuant to section 510(c). Similarly, if a party who seeks maintenance cohabits before maintenance is awarded, the award should be denied pursuant to section 510(c). Ill. Rev. Stat. 1989, ch. 40, par. 510(c).

Although case law cited by petitioner addresses termination of maintenance when the recipient is found to be cohabiting, cohabiting should not be ignored in determining the propriety of an original maintenance award. To espouse such a view ignores the potential for unnecessary, continuing strains between the parties whose marriage has ended. Although respondent’s counsel conceded respondent was cohabiting, if this action disqualifies her for maintenance only if she continues cohabiting, petitioner would be forced to continue to monitor respondent’s activities to learn if this status changed. Such contacts between the parties should not be encouraged.

We note that all relationships in which a party seeking or receiving maintenance participates do not constitute a cohabiting relationship which would justify denying or terminating maintenance. (See In re Marriage of Johnson (1991), 215 Ill. App. 3d 174, 181-82, 574 N.E.2d 855, 859; In re Marriage of Caradonna (1990), 197 Ill. App. 3d 155, 160, 553 N.E.2d 1161, 1165; In re Marriage of Olson (1981), 98 Ill. App. 3d 316, 321, 424 N.E.2d 386, 390.) Rather, an important consideration is whether the relationship has materially affected the recipient spouse’s need for support because the recipient receives support from her coresident or used maintenance money to support the coresident. Sappington, 106 Ill. 2d at 467-68, 478 N.E.2d at 381, quoting In re Marriage of Bramson (1980), 83 Ill. App. 3d 657, 663, 404 N.E.2d 469, 473; Johnson, 215 Ill. App. 3d at 180, 574 N.E.2d at 858.

However, because respondent’s counsel conceded respondent was cohabiting, neither the trial court nor this court had to evaluate whether respondent’s relationship amounted to cohabiting which justifies denying her maintenance. We reverse the court’s ruling based on the concession that respondent was cohabiting. Maintenance is terminated when the recipient cohabits. It should also not be granted to one who cohabits. To rule otherwise would be inconsistent with the policy of section 510(c).

Petitioner next argues because the evidence showed the parties’ year-to-date gross income was equivalent, the trial court erred by ordering him to pay a portion of respondent’s attorney fees. He correctly contends a trial court can award attorney fees to one party in a dissolution of marriage proceeding when that party shows he cannot pay his fees and that the other party can afford to do so. In re Marriage of Bussey (1985), 108 Ill. 2d 286, 299-300, 483 N.E.2d 1229, 1235; In re Marriage of Riech (1991), 208 Ill. App. 3d 301, 312, 566 N.E.2d 826, 832.

Absent an abuse of discretion, the trial court’s decision to award attorney fees in a dissolution proceeding should not be overturned. (Bussey, 108 Ill. 2d at 299, 483 N.E.2d at 1235; Riech, 208 Ill. App. 3d at 312, 566 N.E.2d at 832.) The trial court’s award of a portion of attorney fees to respondent was not an abuse of discretion. Despite petitioner’s contention, the evidence did not establish the parties’ incomes were similar. While petitioner earned at least $50,000 annually during the previous two years, respondent’s annual earnings during the same time period was slightly over $17,000.

Moreover, as respondent aptly notes, petitioner’s year-to-date earnings for 1991 exceeded $25,000 despite his testimony that the dissolution proceedings made it difficult for him to work. During this same period, respondent’s earnings did not exceed $12,755.78. Petitioner attempts to argue that because respondent is cohabiting and thereby spending her money on another person, he should not be required to pay her attorney fees. This does not defeat the fact that petitioner’s earnings far exceed respondent’s. In light of the significant disparity in the parties’ incomes, the trial court did not abuse its discretion in ordering petitioner to pay a portion of respondent’s attorney fees.

Petitioner finally argues the trial court erred by assigning to him the $2,000 loan balance owed to his parents for their loan toward the purchase of the marital home. He contends respondent should have had to repay this debt because she received ownership of the marital home. In the alternative, he argues respondent should have been allocated one-half of the remaining balance. He claims a “general rule” exists which requires the party receiving the marital home to take the home subject to all debts associated with it. He provides no support for this “general rule.”

Respondent correctly notes the loan was not directly tied to the purchase of the home through a mortgage. She also correctly notes that petitioner attempts to complain about the assignment of one debt and fails to discuss the entire disposition of the marital assets and obligations.

Marital assets and obligations need not be distributed equally, but equitably. A trial court’s distribution should not be disturbed absent an abuse of discretion, which occurs only when the trial court exceeded the bounds of reason and ignored judicial principles so that substantial injustice resulted. In re Marriage of Schroeder (1991), 215 Ill. App. 3d 156, 162, 574 N.E.2d 834, 838; In re Marriage of Stone (1987), 155 Ill. App. 3d 62, 75, 507 N.E.2d 900, 908.

Petitioner complains only that the remaining $2,000 of the loan from his parents was assigned to him. He fails to illustrate how this assignment was unjust to him considering the overall property and obligation distribution. The trial court did not abuse its discretion. Moreover, respondent was allocated a larger portion of the marital debt. She was assigned a total of $4,834.51, while petitioner was assigned $3,968, including the $2,000 balance on the loan from his parents. It was reasonable for the trial court to assign that loan to him.

Based on statutory law and public policy, we are compelled to reverse the trial court’s maintenance award to respondent. In light of this ruling, we remand this case to the trial court to determine if rulings related to property and debt distributions between the parties should be revisited.

Reversed in part, and remanded.

McCULLOUGH and COOK, JJ., concur.


source: Caselaw Access Project

author: JUSTICE COOK

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. MARTY MULCAHEY, Defendant-Appellee.
    Fourth District
    No. 4—91—0457
    Opinion filed July 16, 1992.

      Charles G. Reynard, State’s Attorney, of Bloomington (Kenneth R. Boyle, Robert J. Biderman, and Elliott Turpin, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    George F. Taseff, of Bloomington, for appellee.
   JUSTICE COOK

delivered the opinion of the court:

Defendant was charged, in McLean County case No. 91 — CF—7, with six counts of aggravated criminal sexual abuse. (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 16(d).) On November 6, 1991, the jury was impaneled before Judge Townley, the State proceeded with its case in chief, and then rested. When the trial resumed November 7, the following transpired:

“MR. REYNARD [(the prosecutor)]: Judge, at this time I would like to indicate to the Court that Mr. Skelton [(defense counsel)] and I have discussed the resolution of the case, and that resolution would contemplate that I would be asking leave of the Court to nolle-pros the pending charges against the Defendant with leave to file in three additional counts, which would be referred to the Associate Division for plea and disposition. Those counts are in the process of being drafted.

THE COURT [(Judge Townley)]: Well, you can file in whatever you want to wherever you want to, but I am not going to handle the matter, and I am not going to grant you leave to file them in this case. You can file — you can start a new case if you want to file, but I have got this case on trial; and if you nolle it, that is fine.

Give me your nolle, and we’ll start the next case on the calendar, and then you and the Defendant and his counsel can head to the Associate Division with whatever new charges you have and proceed. So have you got your nolle?

MR. SKELTON: Judge, in fairness to the State and to be quite frank with the Court, the disposition that has been discussed involves a plea to certain misdemeanor counts that have been referred to by Mr. Reynard, and I want to indicate on the record that on behalf of Mr. Mulcahey, we are waiving any jeopardy claims or double jeopardy claims that have been attached in regard to this case, and I want to make that clear on the record today. I understand full well that certainly is going to have no impact on this Court today, but for future proceedings is what I am referring to.

THE COURT: Well, let me say that the Court is not granting a mistrial in this case on the basis that there is no jeopardy, because the matter is on trial.

MR. SKELTON: I understand.

THE COURT: This case has been pending since December of last year, and it is an old case, and we finished the State’s evidence. So as far as the Court is concerned, I am not going to accept it on — if this Court is confronted with that in the future on a refiling, I believe that jeopardy is attached, and that waiver isn’t going to be effective.

MR. SKELTON: I just want to indicate to the Court—

THE COURT: I understand what you’re saying. I understand.

MR. REYNARD: May I have a minute to discuss something with the witnesses before I proceed?

THE COURT: Mr. Reynard, at two minutes after 9:00 you said, ‘Can we have some time,’ and I said, ‘Let’s make it 10 minutes and not 30 like yesterday,’ and it is now 9:25, so take three minutes, and let’s get back.

(Whereupon a brief recess was taken.)

THE COURT: Show for the record Mr. Reynard is back in court. Mr. Reynard?

MR. REYNARD: Judge, again I would ask leave to file three additional counts into this matter, and the reason I renew that request is because of the Court’s indications with respect to jeopardy, and I think that would insure against difficulty. I understand Defendant’s waiver, but I think that would insure against any difficulty that might arise in the future, and I would again ask that Counts 1 through 6 be dismissed, and the matter referred.

THE COURT: I won’t grant you leave to file additional counts in this case. This case is on trial. It has been through the People’s evidence. The People have rested. We are ready for the defense’s case as to the charges that are pending, the six charges that are pending. The addition of additional counts at this time, I think, is not appropriate, so you will have to decide whether you are going to nolle or go on and finish the trial.

MR. REYNARD: I am handing up a nolle-pros.

* * *

(Jury returns to the courtroom.)

THE COURT: Thank you for being prompt this morning, ladies and gentlemen. I’m sorry that the Court did not make it clear where you should report this morning, but that was taken care of in time. You have been waiting for us since then.

This matter has been resolved without the necessity of proceeding with the trial, and, because of that, the Court is declaring a mistrial in the case and is excusing you from service.”

The State subsequently filed misdemeanor criminal sexual abuse counts against defendant, docketed as McLean County case No. 90— CM — 1990, pursuant to the “plea agreement.” Defendant discharged his attorney and hired new counsel. Defendant thereafter refused to enter a guilty plea and the State called a new grand jury which entered indictments on six counts of aggravated criminal sexual abuse identical to those charged in No. 89 — CF—691; these charges were docketed as No. 91 — CF—7. Defendant pleaded not guilty and moved to dismiss the charges on the grounds prosecution was barred by double jeopardy. The trial court (Judge Caisley) entered a written order dismissing the charges in No. 91 — CF—7, reasoning that since the State had utter discretion to nol-pros the charges, and there were no circumstances constituting “manifest necessity,” the trial in No. 89— CF — 691 was improperly terminated and the defendant was entitled to discharge in No. 91 — CF—7.

The argument could be made that a case belongs to the parties, not the trial judge, and that it is up to the prosecutor to determine what charges should be brought or proceeded with. In response the argument could be made that plea bargains during trial waste precious judicial resources, and it is the duty of a trial judge to exercise control over the parties to the litigation so as to prevent that waste. We need not decide which argument should prevail here, whether the prosecutor had other options available, or even whether the trial court had the authority to refuse to accept a plea or additional charges. The issues to be determined by this court are instead whether defendant, by trial in No. 91 — CF—7, would be placed twice in jeopardy for the same charges nol-prossed in No. 89 — CF—691 after jeopardy had attached; and whether he waived these protections at trial in No. 89— CF — 691.

A defendant’s right to be free from double jeopardy finds its basis in three distinct sources. The United States Constitution has a provision against double jeopardy (U.S. Const., amend. V) which is applied to the States via the fourteenth amendment. (U.S. Const., amend. XIV.) (Benton v. Maryland (1969), 395 U.S. 784, 23 L. Ed. 2d 707, 89 S. Ct. 2056.) Illinois has a constitutional prohibition against placing a criminal defendant twice in jeopardy. (Ill. Const. 1970, art. I, §10.) Finally, Illinois has a statutory prohibition against trying a criminal defendant twice for the same offense, which provides in pertinent part:

“(a) A prosecution is barred if the defendant was formerly prosecuted for the same offense, based upon the same facts, if such former prosecution:
* * *
(3) Was terminated improperly after the jury was impaneled and sworn or, in a trial before a court without a jury, after the first witness was sworn but before findings were rendered by the trier of facts, or after a plea of guilty was accepted by the court.”

(Emphasis added.) (Ill. Rev. Stat. 1989, ch. 38, par. 3 — 4(a)(3).)

It has long been recognized that the State, with all its resources and power, should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense, and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty. Green v. United States (1957), 355 U.S. 184, 187-88, 2 L. Ed. 2d 199, 204, 78 S. Ct. 221, 223.

The double jeopardy clause can only be applied if the accused has first been placed in jeopardy of a conviction. A defendant is placed in jeopardy in a jury trial when the jury is empaneled and sworn. (Crist v. Bretz (1978), 437 U.S. 28, 57 L. Ed. 2d 24, 98 S. Ct. 2156.) Generally, once a trial has begun and jeopardy has attached, the trial must be followed through to a conclusion unless the defendant consents to the termination or the trial court must declare a mistrial because there is a manifest necessity for the act or the ends of public justice would otherwise be defeated. (United States v. Perez (1824), 22 U.S. (9 Wheat.) 579, 6 L. Ed. 165.) One purpose of the double jeopardy clause is to protect the valued right of the accused to have his trial completed by a particular tribunal of his choice. Oregon v. Kennedy (1982), 456 U.S. 667, 72 L. Ed. 2d 416, 102 S. Ct. 2083.

A criminal defendant will not be allowed to seek the protection of the double jeopardy clause if a mistrial is declared because of manifest necessity. (Perez, 22 U.S. (9 Wheat.) 579, 6 L. Ed. 165.) A trial court may declare a mistrial as a manifest necessity if certain circumstances beyond the control of the parties and the court no longer make it possible to conduct a trial or to reach a fair result upon the evidence. (People v. Yarbrough (1989), 179 Ill. App. 3d 198, 200, 534 N.E.2d 695, 697.) Some examples of manifest necessity are a hung jury, a defective indictment, or inflammatory remarks which make a fair trial impossible. In these instances, the court can declare a mistrial and double jeopardy will not be a bar to a second prosecution. (See, e.g., Perez, 22 U.S. (9 Wheat.) 579, 6 L. Ed. 165; Illinois v. Somerville (1973), 410 U.S. 458, 35 L. Ed. 2d 425, 93 S. Ct. 1066; United States ex rel. Montgomery v. Brierley (3d Cir. 1969), 414 F.2d 552.) In examining whether there is a manifest necessity to declare a mistrial, the court should look to all the circumstances involved rather than apply a rigid, mechanical rule. United States v. Jorn (1971), 400 U.S. 470, 27 L. Ed. 2d 543, 91 S. Ct. 547.

Although the judge told the jury here that he declared a mistrial, that was contrary to his other statements, and the true reason for dismissing the jury was the nolle prosequi by the prosecution. No circumstances were present which were beyond the control of the parties and thus would require termination of the trial. The decision to terminate was a calculated decision on the part of the prosecution which was not of manifest necessity.

A trial also may properly be terminated if the defendant consents to the termination. (United States v. Scott (1978), 437 U.S. 82, 57 L. Ed. 2d 65, 98 S. Ct. 2187.) When a defendant consents to a termination, he is considered to have waived his right to have his case decided by a particular tribunal. (Scott, 437 U.S. 82, 57 L. Ed. 2d 65, 98 S. Ct. 2187.) This situation most often manifests itself when a defendant moves for a mistrial or fails to object when a mistrial is declared. (Scott, 437 U.S. 82, 57 L. Ed. 2d 65, 98 S. Ct. 2187; People v. Bean (1975), 26 Ill. App. 3d 1090, 325 N.E.2d 679, aff’d (1976), 64 Ill. 2d 123, 355 N.E.2d 17.) Here, however, the defendant failed to object to the prosecutor’s motion to nol-pros. A prosecutor’s decision to nolpros must be allowed unless it is part of a vexatious or repetitious course of conduct directed against the defendant, which is not the case here. (People v. Fulkerson (1984), 127 Ill. App. 3d 1084, 1086, 469 N.E.2d 1124, 1125.) It would be fruitless to require an objection where such an objection can necessarily have no effect.

The State contends the prosecutor’s decision to nol-pros was conditioned upon the defendant pleading guilty to the three misdemeanor counts. Generally, when the prosecution nol-prosses charges against the defendant after jeopardy has attached, it is barred from bringing the same charges against him in a subsequent action. (Fulkerson, 127 Ill. App. 3d at 1086, 469 N.E.2d at 1125-26; People v. Foley (1987), 162 Ill. App. 3d 282, 287, 515 N.E.2d 351, 354; People v. Miller (1965), 55 Ill. App. 2d 146, 153, 204 N.E.2d 305, 308, rev’d in part on other grounds (1966), 35 Ill. 2d 62, 219 N.E.2d 475; Ill. Rev. Stat. 1989, ch. 38, par. 3 — 4(a)(3).) The committee comments to section 3 — 4 support such a view by stating that a nolle prosequi by the prosecution after jeopardy has attached would be considered an improper termination of a proceeding and thus bar further reprosecution. Ill. Ann. Stat., ch. 38, par. 3 — 4, Committee Comments, at 126 (Smith-Hurd 1989).

Dismissal of charges may be conditioned on defendant’s plea of guilty to other charges. In People v. McCutcheon (1977), 68 Ill. 2d 101, 368 N.E.2d 886, a felony count was nol-prossed so that defendant could enter a negotiated plea to a misdemeanor, but the misdemeanor conviction was eventually vacated by the appellate court. The State was allowed to reinstate the felony count, despite defendant’s double jeopardy argument, on the basis that jeopardy never attached to the vacated misdemeanor charge, and the dismissal of the felony charge was conditional.

Additionally, the State cites three Federal cases. (Fransaw v. Lynaugh (5th Cir. 1987), 810 F.2d 518; United States v. Baggett (11th Cir. 1990), 901 F.2d 1546, cert. denied (1990), 498 U.S. 862, 112 L. Ed. 2d 133, Ill S. Ct. 168; Taylor v. Kincheloe (9th Cir. 1990), 920 F.2d 599.) In these cases the defendant was allowed to enter a negotiated plea after a trial had begun, and the trial was then terminated. When problems later developed and the plea agreement was not honored (a misunderstanding became apparent at sentencing in Fransaw; defendant’s promised cooperation was not forthcoming in Baggett; the plea was vacated by appellate court in Taylor), the prosecutor was allowed to reinstate the original charges. We find these cases distinguishable. In each of these cases the court actually accepted the plea agreement before the trial was terminated. In these cases the trial judge inquired of the defendant regarding the nature of the plea agreement, and that information was contained in the record. In the present case the trial court did not accept any plea agreement, did not inquire of the defendant, and the contents of any agreement are not contained in the record. From this record we cannot say the apparent repudiation of the purported agreement is solely attributable to the defendant. Finally, the trial judge here advised defendant that jeopardy had attached, and that the waiver of jeopardy which defendant’s counsel had announced to the court would not be effective.

Supreme Court Rule 402 (134 Ill. 2d R. 402) outlines the procedure to be followed when a defendant is pleading guilty to an offense. Specifically, Rule 402 seeks to ensure that the defendant is aware (1) of the nature of the charge; (2) of the maximum and minimum sentence prescribed by law; (3) of his right to plead not guilty; and (4) that by pleading guilty he waives the right to trial by jury and the right to be confronted with the witnesses against him. Under Ride 402, the court is also to determine whether the plea of guilty is voluntary. (134 Ill. 2d Rule 402(b).) Rule 402 admonitions ensure that when a defendant pleads guilty to an offense, that plea is an informed decision. This procedure was not followed here. To hold the defendant to an ephemeral “plea agreement,” which was not reduced to writing and on which no admonitions were given, would circumvent the spirit of Rule 402.

The State contends, however, that the defendant waived any claims to double jeopardy at trial in No. 89 — CF—691, by the remarks of defense counsel. A waiver is an intentional relinquishment or abandonment of a known right or privilege. (Johnson v. Zerbst (1938), 304 U.S. 458, 82 L. Ed. 1461, 58 S. Ct. 1019.) In Ricketts v. Adamson (1987), 483 U.S 1, 97 L. Ed. 2d 1, 107 S. Ct. 2680, the United States Supreme Court acknowledged that the right to claim double jeopardy is a right which can be waived. There, the plea agreement which defendant signed contained a clause stating that if defendant refused to testify as provided in the agreement, the agreement would be null and void and the original charge would automatically be reinstated. (Ricketts, 483 U.S. at 9, 97 L. Ed. 2d at 11, 107 S. Ct. .at 2685.) The Court found the defendant had affirmatively waived his right to claim double jeopardy.

The formality and concreteness of the waiver in Ricketts is not present here. In Ricketts, the defendant signed a document acknowledging he understood that the former charges would be reinstated if he failed to fulfill his part of the bargain. Here, no such clarity exists. The judge’s comments at trial in No. 89 — CF—691, i.e., that he believed that any such waiver would be ineffective, surely affected the defendant’s perception of the purported waiver and the need to actively rebut or oppose it. Courts indulge every reasonable presumption against waiver of fundamental constitutional rights (Aetna Insurance Co. v. Kennedy (1937), 301 U.S. 389, 393, 81 L. Ed. 1177, 1180, 57 S. Ct. 809, 811-12) and do not presume acquiescence in the loss of fundamental rights (Ohio Bell Telephone Co. v. Public Utilities Comm’n (1937), 301 U.S. 292, 307, 81 L. Ed. 1093, 1103, 57 S. Ct. 724, 731). On the facts before us and given this presumption against waiver, it cannot be said that the defendant waived his right not to be twice put in jeopardy for the same offense. A defendant can waive his right to claim double jeopardy, but we will not infer a waiver where the circumstances suggest the defendant may not have been aware of the consequences which flowed from his actions.

For the reasons stated herein, the judgment of the circuit court is affirmed.

Affirmed.

KNECHT and LUND, JJ., concur.


author: JUSTICE McCULLOUGH

text:
      In re SANDRA E. KNAPP, a Person Found Subject to Involuntary Admission (The People of the State of Illinois, Petitioner-Appellee, v. Sandra E. Knapp, Respondent-Appellant).
    Fourth District
    No. 4—91—0840
    Opinion filed June 25, 1992.
    William D. Reid, of Elmore & Reid, of Springfield, for appellant.
    Donald M. Cadagin, State’s Attorney, of Springfield (Norbert J. Goetten, Robert J. Biderman, and Rebecca L. White, all' of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

Sandra Knapp, respondent, appeals from a judgment of the circuit court of Sangamon County finding her to be a person subject to involuntary admission and ordering her to be hospitalized with the Illinois Department of Mental Health and Developmental Disabilities. The only issue raised on appeal is whether the decision of the trial court is against the manifest weight of the evidence. We affirm.

The petition for involuntary admission filed October 22, 1991, alleged respondent was a person who was mentally ill, who because of her illness was reasonably expected to inflict serious physical harm on herself or another in the near future, and who was in need of immediate hospitalization to prevent such harm. At the hearing, three witnesses testified: Betty Boyle, a psychologist employed at the Andrew McFarland Zone Center; Francis Glaser, respondent’s mother; and respondent. Boyle testified she examined respondent on October 24, 1991, for the purpose of making the certificate with regard to the involuntary commitment proceeding. Boyle found respondent to be highly delusional about her mother, feeling her mother was the root of all her problems. It had been reported that respondent told a friend she did not have a gun because she might kill her mother. Respondent did not deny making that statement. Respondent also indicated her mother had been harassing her for months.

According to Boyle, respondent has the delusion she has a life-threatening disease known as lupus erythematosus. Recently, respondent has been seeing a Dr. Vales, but she has seen a number of doctors. Respondent fires them when they suggest she needs psychiatric care and refuses to take antidepressants. It was Boyle’s opinion that because of the delusions, respondent was reasonably expected to inflict serious physical harm on herself or another in the near future. Boyle was particularly concerned about the danger to respondent’s mother and stepfather.

In addition, respondent became delusional about a neighbor of her parents. She looked his name up in the telephone book and began sending him love letters and tried to telephone him. The delusion persisted even though the man did not know her and the sheriff came to respondent’s mother’s house to explain that, if respondent’s activities persisted, the man’s wife would swear out a complaint. According to Boyle, hospitalization was the least restrictive form of treatment available for respondent.

Admitted into evidence without objection were a number of exhibits. Among those exhibits was an October 30, 1991, letter from Dr. James S. Vales stating respondent was in possession of an erroneous letter stating he diagnosed her to have systemic lupus, explaining that, after evaluation by Vales and two nephrologists, it was determined she did not have systemic lupus and further explaining that respondent refused the recommended psychiatric evaluation. A handwritten note from Vales dated October 23, 1991, stated he interviewed respondent on September 19, 1991. In the note, Vales stated respondent admitted to him that she had stated she would Mil her mother if she had a gun and she further stated that she could do that. In addition, there were copies of letters respondent sent to J.K., the gentleman who was the target of her affections. In those letters, respondent stated that she was abused and harassed by her mother and stepfather, her telephone was bugged by her ex-husband and the Governor of Wisconsin, and various other unidentified individuals were playing tricks on her and harassing her.

Respondent’s mother examined the letters sent to J.K. She testified she recognized the handwriting and signature on the letters as being respondent’s.

Respondent testified that her mother had been harassing her. “She is not the root of all my problems, she is the root of why I stated that if I had a gun, I would kill her.” Respondent explained she was not capable of shooting her mother, but she harbors a lot of anger toward her. She is not a violent person. It was just an expression of anger, not a threat. Respondent does not own a gun, and had no intention of ever buying one. She has never harmed herself or anyone else. Respondent testified she had systemic lupus erythematosus and offered into evidence the July 22, 1991, letter of Vales which stated she is disabled as a result of that disease. She explained she sent the letters to J.K. by mistake. She thought she was sending them to someone else, a person she had met two years before and whom J.K. resembled. Respondent stated she sent him and his family an apology. Respondent also testified Vales had been treating her for lupus with steroids since the first of March, but now he states she does not have the disease.

While it is true that the State’s burden of proof in the trial court in cases involving commitment of persons for mental treatment is to prove the basis for involuntary admission by clear and convincing evidence (In re Stephenson (1977), 67 Ill. 2d 544, 556, 367 N.E.2d 1273, 1278), the standard of review is whether the judgment is against the manifest weight of the evidence. This is similar to cases involving termination of parental rights. (In re L.M. (1990), 205 Ill. App. 3d 497, 513-14, 563 N.E.2d 999, 1009; In re R.B.W. (1989), 192 Ill. App. 3d 477, 499-500, 548 N.E.2d 1085, 1099-1100.) The decision of the trial court is against the manifest weight of the evidence if a review of the record clearly establishes that the decision opposite to the one reached by the trial court was the proper result. (Stone v. City of Arcola (1989), 181 Ill. App. 3d 513, 530-31, 536 N.E.2d 1329, 1340.) Great deference is given to the trial court’s findings since that court had the opportunity to see the respondent and witnesses and hear them testify and, therefore, is in a much superior position to determine credibility and weigh the evidence. (In re Biggs (1991), 219 Ill. App. 3d 361, 363, 579 N.E.2d 1170, 1172.) A reviewing court will not set aside a trial court’s decision simply because it would have ruled differently on the evidence. (In re Rogers (1985), 133 Ill. App. 3d 524, 525, 478 N.E.2d 1198, 1199.) It has long been recognized that predicting the future dangerousness of an individual is an inexact medical science, and therefore, reviewing courts have held that orders of commitment will not be overturned when there is “a reasonable expectation that the respondent would engage in dangerous conduct.” (In re Powell (1980), 85 Ill. App. 3d 877, 880, 407 N.E.2d 658, 660.) Courts are not required to wait until an individual is harmed by the respondent before ordering hospitalization. In re Johnston (1983), 118 Ill. App. 3d 214, 218, 454 N.E.2d 840, 842; Powell, 85 Ill. App. 3d at 880, 407 N.E.2d at 660.

Based on the evidence, the decision of the trial court was not against the manifest weight of the evidence. Accordingly, the judgment of the circuit court of Sangamon County is affirmed.

Affirmed.

COOK and LUND, JJ., concur.


text:
    VICKI S. HENSLER, Plaintiff-Appellant, v. BUSEY BANK, Defendant-Appellee.
    Fourth District
    No. 4—91—0913
    Opinion filed July 9, 1992.

      Thomas E. Harrington and Richard J. Winkel, Jr., both of Harrington, Porter & Winkel, of Champaign, for appellant.
    James W. Evans, Ltd., of Evans & Froehlich, of Champaign, for appellee.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

Plaintiff Vicki S. Hensler filed a two-count complaint alleging defendant Busey Bank misapplied the proceeds of a life insurance policy to various notes between defendant and Downtown Electric, Inc., an Illinois corporation. Defendant filed a motion to dismiss plaintiff’s complaint for failure to state a cause of action (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 615(a)) for either breach of contract or breach of a fiduciary duty, which the trial court granted on November 13, 1991. Plaintiff appeals, contending her complaint states a cause of action for breach of contract and breach of a fiduciary duty. We reverse in part and affirm in part.

Plaintiff’s husband, Guy Jack Hensler (decedent), was president of Downtown Electric, Inc., which was dissolved on February 1, 1991. On November 27, 1984, decedent executed a guarantee whereunder he guaranteed defendant the payment of “any and all indebtedness, obligations and liabilities” of Downtown Electric.

Downtown Electric obtained four loans from defendant to help maintain the corporation. Two of these loans were evidenced by term notes, dated March 14, 1985, and April 29, 1988, which required monthly installment payments. The April 29, 1988, term note was secured by a mortgage on plaintiff’s home. The other two loans were evidenced by two demand notes, dated April 29, 1988, and October 7, 1988, which required monthly interest payments. All four notes contained a standard acceleration clause which gave defendant the option, without notice, demand or presentment of any kind, to declare the entire balance of the note immediately due and payable. The demand notes could be accelerated at any time while the term notes needed an event of default to be accelerated. Failure to make a monthly installment payment was an event of default sufficient to trigger the acceleration clause in the term'notes.

On July 16, 1985, decedent applied to CNA Insurance Companies for a $250,000 life insurance policy. That policy was subsequently issued and defendant “as its interest may appear” was named as the beneficiary. The balance of the proceeds, if any, was to go to decedent’s survivor. On April 26, 1986, decedent collaterally assigned this life insurance policy to defendant.

On June 29, 1990, decedent died following an extended illness. At the time of his death, Downtown Electric was indebted to defendant on the four notes previously mentioned and it had failed to make the monthly installment payments on each of the four notes. Downtown Electric was in arrears on the four notes in the amount of $30,000. Defendant failed to invoke any of the acceleration clauses contained in the notes and did not demand the balance due on the two demand notes. At the time of decedent’s death, his only personal liability to defendant existed in the guarantee executed on November 27,1984.

Pursuant to the collateral assignment of decedent’s life insurance policy, CNA Insurance paid the proceeds of that policy to defendant. Defendant then applied that money to completely pay off three of the notes of Downtown Electric and partially pay off the fourth note. Defendant paid the term notes executed on March 14, 1985, October 7, 1988, and the demand note of April 29, 1988. The term note of April 29, 1988, which was secured by a mortgage on plaintiff’s home, was partially paid with the remainder of the proceeds of the life insurance policy. A balance of $130,000 remains on plaintiff’s mortgage. Defendant has made repeated demands for payment on the remaining note and has threatened to foreclose on plaintiff’s home to collect the balance of that note.

Plaintiff filed her two-count complaint on August 2, 1991, seeking injunctive and declaratory relief as well as compensatory damages. Count I alleged defendant breached the provisions of the various documents in its application of the insurance proceeds. Count II of plaintiff’s complaint alleged breach of a fiduciary duty in that defendant wrongfully engaged in overreaching and self-dealing by misapplying the insurance proceeds to the various loans.

On October 15, 1991, defendant filed a motion to dismiss pursuant to section 2 — 615 of the niinois Code of Civil Procedure (Code) (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 615) alleging plaintiff’s complaint failed to state a cause of action for either breach of contract or breach of a fiduciary duty. On November 13, 1991, the trial court issued a letter opinion granting, with prejudice, defendant’s motion to dismiss. The trial court indicated it had read and construed the documents and concluded plaintiff’s complaint did not state a cause of action for breach of contract or breach of fiduciary duty. Moreover, the trial court stated:

“I am satisfied that the actions described in Plaintiff’s complaint as giving rise to the pleaded claims are, in fact, actions by the Defendant which are within the terms of the notes, guaranty and assignment. As these actions of Defendant are within the terms of the agreement entered into by the late Mr. Hensler, the complaint cannot stand.”

Plaintiff timely filed her notice of appeal.

In ruling on a section 2 — 615 motion to dismiss, a court should deny the motion unless it clearly appears that no set of facts can be proved which will entitle the plaintiff to recover. In making this determination, the court is to interpret the allegations of the complaint in the light most favorable to the nonmovant. (McGrath v. Fahey (1988), 126 Ill. 2d 78, 90, 533 N.E.2d 806, 811.) In ruling on a motion to dismiss for failure to state a cause of action, a court must accept as true all well-pleaded factual matters in the complaint and all reasonable inferences that may be drawn therefrom, but need not accept conclusions of law, argumentative matter, or conclusions of fact unsupported by allegations of specific facts upon which such conclusions rest. (Kennedy v. First National Bank (1990), 194 Ill. App. 3d 1004, 1009, 551 N.E.2d 1002, 1005.) Unless it clearly appears that no set of facts could be established which would entitle plaintiff to relief, a dismissal with prejudice should not be made. McGann v. Illinois Hospital Association, Inc. (1988), 172 Ill. App. 3d 560, 564, 526 N.E.2d 902, 903.

The first issue for our resolution is whether count I of plaintiff’s complaint states a cause of action for breach of contract. Is there no set of facts which could be pleaded and proved which would entitle plaintiff to relief?

Plaintiff contends the resolution of this dispute depends upon the interpretation of the phrase “then existing Liabilities” as it is used in paragraph E(l) of the collateral assignment of decedent’s life insurance policy. Plaintiff suggests, because defendant failed to invoke the acceleration clauses in the two term notes, the only amount due on those notes was the amount of the past-due installments. Similarly, plaintiff argues the only amount due on the two demand notes, since defendant failed to “demand” the entire balance due, was the amount needed to bring the notes current. Plaintiff concludes the total amount due on the four notes, approximately $30,000, constituted the “then existing Liabilities” of decedent to defendant.

Thus, plaintiff argues that amount, $30,000, should have been paid out of the proceeds of the life insurance policy because that was the only amount decedent would be liable for under his guarantee. Plaintiff further contends the parties intended the life insurance proceeds to be used to pay off the mortgage on her home, which was $130,000, thus leaving a balance of $90,000 to be paid to her pursuant to paragraph E(l) of the collateral assignment.

Paragraphs D and E(l) of the collateral assignment of the life insurance policy state:

“This assignment is made and the Policy is to be held as collateral security for any and all liabilities of the undersigned, or any of them, to the Assignee, either now existing or that may hereafter arise in the ordinary course of business between any of the undersigned and the Assignee (all of which liabilities secured or to become secured are herein called ‘Liabilities’).
The Assignee covenants and agrees with the undersigned as follows:
(1) That any balance of sums received hereunder from the Insurer remaining after payment of the then existing Liabilities, matured or unmatured, shall be paid by the Assignee to the persons entitled thereto under the terms of the policy had this assignment not been executed.”

Thus, the proceeds of the life insurance policy were to pay “any and all liabilities” of decedent to defendant and any monies remaining after payment of the then existing liabilities were to be paid to plaintiff as the person other than defendant entitled to the proceeds of the life insurance policy.

In Tri State Bank v. Colby (1986), 141 Ill. App. 3d 807, 490 N.E.2d 1037, defendants had executed two notes to plaintiff with two refrigerated trailers as collateral. In addition, the security agreement for each note contained a provision in which defendants granted plaintiff a security interest in any monies on deposit with plaintiff. The default provision of the security agreement provided that failure to pay any installment caused a default, thereby allowing plaintiff to demand immediate payment of the balance due on the note and to apply the security to payment on the note. Defendants eventually failed to make the monthly installments on the notes and plaintiff froze defendants’ savings account. Plaintiff then brought an action to recover on the two notes which were in default and defendants counterclaimed for the wrongful conversion of their savings account. The trial court granted summary judgment to plaintiff awarding it damages in the amount of the note plus interest and also dismissed defendants’ counterclaim for the wrongful conversion of the money in the savings account. Tri State Bank, 141 Ill. App. 3d at 808, 490 N.E.2d at 1037.

On appeal, the court concluded plaintiff acted improperly in freezing defendants’ entire savings account. The court stated since plaintiff had not accelerated the two notes until after the savings account was frozen, plaintiff was only entitled to set off an amount equal to the indebtedness which had matured at that point. Specifically the court stated:

“A default in any monthly installment did not automatically make defendants liable for the outstanding balance. This is evident from the language of the acceleration clause contained in each security agreement. The accelerating provisions state that in the event of a default, ‘Lender can then demand immediate payment of the outstanding balance of this note ***.’ (Emphasis added.) Plaintiff therefore only had the option to accelerate the payments upon default. It is well settled that an option to accelerate the maturity of a note for the nonpayment of an installment ‘requires some affirmative action on the part of the holder, evidencing his election to take advantage of the accelerating provision, and that until such action has been taken the provision has no operation.’ Annot., 5 A.L.R.2d 968, sec. 3, at 970 (1949).” (Emphasis added.) (Tri State Bank, 141 Ill. App. 3d at 812, 490 N.E.2d at 1040.)

The court noted the record indicated plaintiff attempted to accelerate the notes after it had frozen defendants’ savings account. Had plaintiff accelerated the notes prior to seizing defendants’ account, the court stated there would be no question that it could have legitimately set off the entire balance of the notes due since the notes would have been fully matured at that time. However, because plaintiff had not exercised its option of acceleration when it seized defendants’ account, plaintiff was only entitled to a setoff in the amount equal to the indebtedness which had matured at that point; namely, the amount past due.

Generally speaking, the guarantor is a favorite of the law. (Heritage Bank v. Bruti (1986), 141 Ill. App. 3d 107, 108, 489 N.E.2d 1182, 1183.) A guarantor is to be accorded the benefit of any doubt which may arise from the language of the contract, and his liability is not to be varied or extended by construction or implication beyond its precise terms. (McLean County Bank v. Brokaw (1988), 119 Ill. 2d 405, 412, 519 N.E.2d 453, 456.) The liability of a guarantor is strictly construed in his favor and against the party in whose favor the guaranty runs. Lincoln Park Federal Savings & Loan Association v. Carrane (1989), 192 Ill. App. 3d 188, 191, 548 N.E.2d 636, 638.

The general rule is that the liability of a guarantor is limited by and is no greater than that of the principal debtor and that if no recovery could be had against the principal debtor, the guarantor would also be absolved from liability. A guaranty of the payment of an obligation of another is an absolute undertaking imposing liability upon the guarantor immediately upon the default of the principal debtor. No liability may be imposed upon the guarantor unless and until the principal debtor has defaulted and this is true whether the guaranty is coextensive with or broader or narrower than the principal contract. Where under the conditions of the contract no liability has arisen on the part of the principal, there is no liability on the guarantor. Kreizelman v. Stevens (1941), 311 Ill. App. 161, 168, 35 N.E.2d 532, 535, aff'd (1942), 381 Ill. 73, 44 N.E.2d 873.

In conclusion, we are not convinced that there is no set of facts which plaintiff could plead and prove to establish her entitlement to relief. If defendant was required to accelerate the notes and give plaintiff notice of its election to do so before applying the proceeds of the life insurance policy to the notes, and failed to perform these acts, a jury could conclude defendant misapplied the proceeds of the life insurance policy. An ambiguity exists as to the extent of decedent’s liability to defendant. It was error to grant defendant’s motion to dismiss count I of plaintiff’s complaint. Therefore, we reverse the trial court’s dismissal with prejudice of count I of plaintiff’s complaint and order that count reinstated.

Plaintiff next contends count II of her complaint states a cause of action for breach of a fiduciary duty. She alleges defendant was in a position of dominance and superiority to her as it had exclusive control of the insurance proceeds which she further suggests were held in an actual or constructive trust. She suggests defendant misapplied the proceeds from the insurance policy and thus breached a fiduciary duty owed to her by virtue of its having control of these funds.

A fiduciary relationship exists when there is a special confidence reposed in one, who, in equity and good conscience, is bound to act in good faith and with due regard to the interest of the one reposing the confidence. The factors to be considered in determining whether a fiduciary relationship exists include the degree of kinship, disparity of age, health and mental condition, and the extent to which the allegedly servient party entrusted the handling of his business and financial affairs to and reposed faith and confidence in the dominant party. Kolze v. Fordtran (1952), 412 Ill. 461, 468, 107 N.E.2d 686, 690; Lamb v. Lamb (1984), 124 Ill. App. 3d 687, 690-91, 464 N.E.2d 873, 876.

A fiduciary or confidential relationship may be found in one of two ways. A fiduciary relationship may be presumed from the relationship of the parties, such as an attorney-client relationship, or may be found to exist by the facts of a particular situation, such as a relationship where trust is reposed on one side and there is resulting superiority and influence on the other side. The burden of pleading and proving the existence of a fiduciary relationship lies with the party seeking relief, and where the alleged relationship does not exist as a matter of law, facts from which a fiduciary relationship arises must be pleaded and proved by clear and convincing evidence. (Farmer City State Bank v. Guingrich (1985), 139 Ill. App. 3d 416, 422-24, 487 N.E.2d 758, 762-63.) A fiduciary relationship does not exist as a matter of law between a guarantor and a creditor. (Farmer City State Bank, 139 Ill. App. 3d at 424, 487 N.E.2d at 764.) In order to establish a fiduciary relationship, the trust and confidence allegedly reposed by the first party must actually be accepted by the second party. De Witt County Public Building Comm’n v. County of De Witt (1984), 128 Ill. App. 3d 11, 26, 469 N.E.2d 689, 700.

Plaintiff has failed to plead any facts supporting her contention that a fiduciary relationship existed between herself and defendant. Count II of plaintiff’s complaint incorporates paragraphs 1 through 27 of count I, which contains many conclusions of law regarding the amount of decedent’s liability to defendant at the time of his death and the proper application of the insurance proceeds. The remaining allegations in count II also contain conclusions of law regarding defendant holding the funds in trust for plaintiff and defendant’s engaging in self-dealing and overreaching when it applied the proceeds to the various loans. However, plaintiff did not plead any facts to show the existence of a fiduciary relationship between herself and defendant nor facts to establish either an actual or constructive trust.

A fiduciary duty may have existed between decedent and defendant, but not as a matter of law. Any relationship of that type between decedent and defendant would have to have been pleaded and proved by clear and convincing evidence, which plaintiff failed to do. Clearly, defendant has not accepted any trust and confidence placed in it by plaintiff. Plaintiff failed to plead that she entrusted the handling of her business affairs in defendant or that she placed her trust and confidence in defendant. In fact, the only relationship between defendant and plaintiff arose because she was a contingent beneficiary under decedent’s life insurance policy and the collateral assignment to defendant of that policy, and the fact she signed the mortgage to defendant and was married to decedent, who had a business relationship with defendant.

Therefore, as plaintiff failed to allege facts to support a cause of action for breach of a fiduciary duty, and no set of facts could ever be pleaded to show the existence of such a relationship and a subsequent breach thereof, the trial court properly dismissed with prejudice count II of plaintiff’s complaint.

Affirmed in part; reversed in part and remanded with directions.

KNECHT and COOK, JJ., concur.


text:
    EARL McGEE, Plaintiff-Appellant, v. RACTIAN CONSTRUCTION COMPANY, Defendant-Appellee.
    Fourth District
    No. 4—91—0968
    Opinion filed July 9, 1992.

      Patrick James Smith, of Delano Law Offices, P.C., of Springfield, for appellant.
    William J. Thomas, of Henry D. Noetzel & Associates, Ltd., of Peoria, for appellee.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

Plaintiff Earl McGee appeals from an order of the circuit court of Sangamon County entering judgment in his favor against defendant Ractian Construction Company, but denying plaintiff’s requested relief of attorney fees and costs. Plaintiff had sued defendant to obtain a judgment based on the failure of defendant to tender payment under a decision of the Illinois Industrial Commission (Commission) with regard to a workers’ compensation claim. The only issue raised on review by plaintiff is whether the circuit court erred in refusing to award attorney fees and costs. Defendant raises the additional issue of whether the circuit court had subject-matter jurisdiction to consider the cause. We find the circuit court did have subject-matter jurisdiction, and we affirm the judgment of the circuit court.

On May 6, 1991, the Commission entered a decision affirming the arbitrator’s award. (McGee v. Ractian Construction Co. (1991), 91 Ill. Ind. Comm’n 975.) In addition to affirming the June 26, 1990, arbitrator’s decision, the Commission further ordered that defendant pay interest under section 19(n) of the Workers’ Compensation Act (Act) (Ill. Rev. Stat. 1989, ch. 48, par. 138.19(n)), and provided that defendant receive a credit for any sums paid to or on behalf of plaintiff on account of the accidental injury. Neither the arbitrator nor the Commission determined the rate to be applied. Section 19(n) states:

“After June 30, 1984, decisions of the Industrial Commission reviewing an award of an arbitrator of the Commission shall draw interest at a rate equal to the yield on indebtedness issued by the United States Government with a 26-week maturity next previously auctioned on the day on which the decision is filed. Said rate of interest shall be set forth in the Arbitrator’s Decision. Interest shall be drawn from the date of the arbitrator’s award on all accrued compensation due the employee through the day prior to the date of payments. However, when an employee appeals an award of an Arbitrator or the Commission, and the appeal results in no change or a decrease in the award, interest shall not further accrue from the date of such appeal.
The employer or his insurance carrier may tender the payments due under the award to stop the further accrual of interest on such award notwithstanding the prosecution by either party of review, certiorari, appeal to the Supreme Court or other steps to reverse, vacate or modify the award.” Ill. Rev. Stat. 1989, ch. 48, par. 138.19(n).

The June 26, 1990, decision of the arbitrator held defendant liable to plaintiff for the following: (1) temporary total disability benefits of $400 per week for 217 weeks, with credit for $69,600 paid on account of the injury; (2) permanent total disability benefits of $400 per week beginning February 20, 1990; and (3) $5,649.44 for necessary medical and rehabilitation expenses. Defendant did not seek judicial review of the Commission’s decision. Plaintiff’s petition recited that defendant had not sought judicial review “within the 20 days as required by law.”

On July 22, 1991, plaintiff filed the petition for application for entry of judgment herein pursuant to section 19(g) of the Act (Ill. Rev. Stat. 1989, ch. 48, par. 138.19(g)). Section 19(g) provides:

“Except in the case of a claim against the State of Illinois, either party may present a certified copy of the award of the Arbitrator, or a certified copy of the decision of the Commission when the same has become final, when no proceedings for review are pending, providing for the payment of compensation according to this Act, to the Circuit Court of the county in which such accident occurred or either of the parties are residents, whereupon the court shall enter a judgment in accordance therewith. In a case where the employer refuses to pay compensation according to such final award or such final decision upon which such judgment is entered the court shall in entering judgment thereon, tax as costs against him the reasonable costs and attorney fees in the arbitration proceedings and in the court entering the judgment for the person in whose favor the judgment is entered, which judgment and costs taxed as therein provided shall, until and unless set aside, have the same effect as though duly entered in an action duly tried and determined by the court, and shall with like effect, be entered and docketed. The Circuit Court shall have power at any time upon application to make any such judgment conform to any modification required by any subsequent decision of the Supreme Court upon appeal, or as the result of any subsequent proceedings for review, as provided in this Act.
Judgment shall not be entered until 15 days’ notice of the time and place of the application for the entry of judgment shall be served upon the employer by filing such notice with the Commission, which Commission shall, in case it has on file the address of the employer or the name and address of its agent upon whom notices may be served, immediately send a copy of the notice to the employer or such designated agent.” (Ill. Rev. Stat. 1989, ch. 48, par. 138.19(g).)

Plaintiff also requested the court to order defendant to pay a 50% penalty for unreasonable and vexatious delay and a $10-per-day penalty from May 20, 1991, for failure to pay within 14 days following the Commission’s affirmance of the arbitrator’s decision. (See Ill. Rev. Stat. 1989, ch. 48, pars. 138.19(k), (1).) In addition to the penalties, the petition prayed the judgment include the following: $22,849.44 as and for the arbitrator’s award; $25,369.89 as attorney fees, representing 20% of the amount awarded to date plus the first five years of permanency payments; $2,386.80 as costs; and interest calculated at the rate of 7.67% on the award from the date of arbitration to the date of judgment and on the accrued weekly permanency award until paid. Plaintiff admits in his brief that he subsequently withdrew his demands for penalties under sections 19(k), 19(1), and 16 of the Act (Ill. Rev. Stat. 1989, ch. 48, par. 138.16). Section 16 allows for the assessment of attorney fees and costs in the event a finding is made of unreasonable or vexatious delay, intentional underpayment of benefits, or engaging in frivolous defenses within the purview of section 19(k). Ill. Rev. Stat. 1989, ch. 48, par. 138.16.

In her memorandum of decision, the circuit judge advised the parties of the reasons for her decision with regard to attorney fees and costs as follows:

“I am of the opinion that since Plaintiff made no demand for payment before filing his petition and since Defendant made a nearly complete tender of the amount owed eight days after suit was filed, and since there could be some confusion about the calculation of interest, no attorney fees and costs should be awarded. The Court will enter judgment for Plaintiff and against Defendant for the amounts of the awards plus interest to the date of December 2, 1991.”

The first issue to address is whether the circuit court had subject-matter jurisdiction. Just as jurisdiction to judicially review the Commission’s decision may be invoked only upon strict compliance with the Act, which provides a purely statutory remedy (American Steel Foundries v. Industrial Comm’n (1983), 96 Ill. 2d 513, 518-19, 451 N.E.2d 883, 885-86), strict compliance with the Act must also be had in order to invoke the circuit court’s jurisdiction to enter a judgment pursuant to section 19(g). (Evans v. Corporate Services (1990), 207 Ill. App. 3d 297, 302, 565 N.E.2d 724, 728.) In arguing lack of subject-matter jurisdiction, defendant relies on the section 19(g) requirement that the decision of the Commission be final and the section 19(f)(1) provision that a proceeding for review of a Commission decision “shall be commenced within 20 days of the receipt of notice of the decision of the Commission.” (Ill. Rev. Stat. 1989, ch. 48, par. 138.19(f)(1); see also Perusky v. Industrial Comm’n (1978), 72 Ill. 2d 299, 300-02, 381 N.E.2d 270, 271-72.) It is defendant’s argument that plaintiff did not allege when defendant received the notice of the decision and, therefore, failed to allege the time for review had passed and the Commission decision was final.

We reject this argument for three reasons. First, defendant’s pleadings in the circuit court supply the missing information and refute the argument. In defendant’s request for admission of facts filed October 9, 1991, defendant recited that it received the Commission decision on May 13, 1991, so that the decision became final on June 3, 1991. The first paragraph of defendant’s brief in the circuit court states the same facts and is supported by an exhibit, being a photocopy of the Commission decision stamped “RECEIVED MAY 13, 1991.” Since plaintiff’s section 19(g) petition was filed in the circuit court on July 22, 1991, the Commission decision was then final, and the circuit court had subject-matter jurisdiction, provided of course no appeal had been taken in the statutorily allotted time. Second, plaintiff’s petition alleged “[t]hat said award was not appealed within the 20 days as required by law and therefore, such decision of the Industrial Commission has become final.” Since defendant has not explicitly denied this allegation, it is admitted. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 610(b).) Furthermore, the only responsive pleading defendant filed in the circuit court was a motion to dismiss, which did not challenge the allegation of finality of the Commission decision. In considering a motion to dismiss, with the exception of allegations of damages, all well-pleaded facts alleged in the attacked pleading are taken as true. (City of Marshall v. City of Casey (1989), 177 Ill. App. 3d 1065, 1069, 532 N.E.2d 1121, 1123.) The third reason for refusing to accept defendant’s argument is that, ordinarily, the plaintiff would not know when defendant received notice of the Commission decision. It would be unfair to place on plaintiff the burden of alleging a fact he is incapable of knowing. Therefore, if defendant is aware of facts which demonstrate that the circuit court is without subject-matter jurisdiction, defendant should file a motion to dismiss pursuant to section 2— 619(aXl) of the Illinois Code of Civil Procedure supported by affidavit in order to bring these facts to the trial court’s attention. Ill. Rev. Stat. 1989, ch. 110, par. 2-619(a)(l).

As for the question of attorney fees and costs, we note that the courts are not required to award such costs in every section 19(g) case. (Wirth v. Industrial Comm’n (1976), 63 Ill. 2d 237, 241-42, 347 N.E.2d 136, 138; Evans, 207 Ill. App. 3d at 303, 565 N.E.2d at 728-29.)

“However, the statute itself gives no authority to allow reasonable attorney fees and costs to be taxed against the party owing compensation unless that party refuses to pay the compensation, or some installment thereof, when it becomes due. McMurray v. Peabody Coal Co. (1917), 281 Ill. 218, 224, 226; see also Board of Education, 308 Ill. at 451; Franklin, 5 Ill. App. 3d at 735.” (Emphasis in original.) Evans, 207 Ill. App. 3d at 303, 565 N.E.2d at 728-29.

One of the reasons argued by defendant, and relied on by the circuit court, for not imposing such attorney fees and costs in the case at bar is the fact that plaintiff never made a demand for payment. In affirming the circuit court, this court does not hold that a demand must be made in every case before an award of attorney fees and costs may be made, and clearly a demand is not a prerequisite to filing a section 19(g) petition in the circuit court. Instead, the presence or absence of a demand is one factor to be considered by the circuit court in assessing the unreasonableness of the failure to pay on the part of defendant. Other relevant factors to consider include, but are not limited to, the length of time which transpired between the date the Commission decision became final and the date of filing the section 19(g) petition in the circuit court; the negotiations and communications between the parties which took place during that period; whether the decision of the Commission leaves room for good-faith disagreement as to the amount of the payments owed by defendant, such as in this case where the arbitrator and Commission failed to designate the rate of section 19(n) interest and the per diem accrual rate of interest as to each portion of the award; and whether and when defendant made a good-faith offer of settlement.

In this case, the decision of the Commission became final on June 3, 1991. Plaintiff filed his section 19(g) petition on July 22, 1991. The record does not disclose what, if any, communications took place between the parties from June 3 to July 22, 1991. However, based on the defendant’s request to admit facts, which was not denied, the record discloses that on July 26, 1991, plaintiff’s attorney sent a letter to defendant’s attorney returning two checks in the total amount of $26,162.88 which had been tendered in settlement of the award. He asked for full payment in accordance with the section 19(g) petition. In an August 1, 1991, letter from plaintiff’s attorney sent by facsimile transmission to defendant’s attorney, it was stated, “I have not completed computation of the amount due under the award.” However, he disagreed with defendant’s computation because it failed to include attorney fees and penalties. Defendant had tendered a check dated July 30, 1991, in the amount of $56,369.09 and this was returned by plaintiff’s counsel. In a letter dated August 7, 1991, plaintiff sought payment of $103,250.27. However, at the September 5, 1991, hearing, plaintiff withdrew his demand for attorney fees pursuant to section 16 and penalties under sections 19(k) and 19(1). At that hearing, plaintiff submitted a document entitled “Computation of Judgment” which represented a revised demand totalling $86,600.87. On September 6, 1991, plaintiff’s attorney sent another letter by facsimile transmission revising the demand to $72,288.92, including a demand for attorney fees and costs totalling $14,455.54. Prior to the entry of judgment in the circuit court, there was filed an interim statement of additional attorney fees of $1,820.

In her memorandum of decision, the circuit judge specifically found that on July 30, 1991, defendant owed plaintiff $56,708.37, and on that date, defendant tendered $56,369.09, an amount $339.28 short of what was owed. These findings are not in dispute in this appeal. As already noted, the circuit court relied on the facts that there was a “nearly complete tender” and there “could be some confusion about the calculation of interest” to deny attorney fees and costs.

In Wirth, a delay resulting from a dispute as to liability for interest was considered to be not a refusal to pay the compensation within the meaning of the Act and did not warrant ordering a section 19(g) defendant to pay attorney fees. (Wirth, 63 Ill. 2d at 241-42, 347 N.E.2d at 138.) In Evans, the Commission decision became final on July 24, 1989, and the section 19(g) petition was filed on August 15, 1989. At the time the petition was filed, the award had not yet been paid, but it was uncontested that the award was paid in full in August 1989, before the hearing was had. On those facts, the denial of attorney fees was approved, although we recognize the discussion in Evans was dicta. (Evans, 207 Ill. App. 3d at 299, 303-04, 565 N.E.2d at 726, 728-29.) Similarly, in Poe v. Industrial Comm’n (1992), 230 Ill. App. 3d 1, 11, the refusal to grant attorney fees and costs was upheld where there was a dispute as to the amount of interest owed.

In Poe, the interest in dispute amounted to $503.36. In the present case, the difference between the tender and the actual amount owed including interest was $339.28. To allow plaintiff to recover $16,275.54 in costs and attorney fees because of a dispute over $339.28 would be a harsh and unconscionable result which was not contemplated by the statute. On the other hand, we recognize that the purpose of the Act is to protect injured employees, and their dependents, by providing a prompt, sure remedy for injuries and requiring that industry, rather than the individual, bear the cost of individual accidents. (Mier v. Staley (1975), 28 Ill. App. 3d 373, 379, 329 N.E.2d 1, 6.) To the extent that employers do not promptly pay awards, violence is done to the purposes of the Act. Therefore, where an unreasonable failure to pay has been demonstrated, a minor dispute over the calculation of interest may not avoid the imposition of attorney fees and costs.

Finally, under section 19(n) of the Act, the arbitrator has a mandatory, statutory duty to set the rate of interest. Had the arbitrator’s decision or the Commission’s decision set forth the rate of interest under section 19(n), and the amount of interest to accrue on a per diem basis on each portion of the awards provided therein, the employer would not be able to raise a dispute as to the amount of interest accruing as a defense for failing to promptly pay. Although the Commission has a duty to set forth the rate of interest, the dispute over the calculation of interest was, to some extent, caused by the failure of plaintiff to request the arbitrator or the Commission to specify the interest in their respective decisions, or for the Commission to subsequently set the interest rate. See Hughes v. Industrial Comm’n (1990), 196 Ill. App. 3d 143, 144-46, 553 N.E.2d 113, 113-14.

Accordingly, the judgment of the circuit court of Sangamon County is affirmed.

Affirmed.

GREEN, P.J., and KNECHT, J., concur.


author: PRESIDING JUSTICE GREEN

text:
    E.M.E. ENTERPRISES, INC., Plaintiff-Appellee, v. ANVIL BRAND SHOE COMPANY, INC., et al., Defendants-Appellants.
    Fourth District
    No. 4—92—0058
    Opinion filed June 30, 1992.

      Maurice J. Barry, of Ostling, Ensign, Barry & Glenn, of Bloomington, for appellants.
    Marvin H. Gesell, of Bloomington, for appellee.
   PRESIDING JUSTICE GREEN

delivered the opinion of the court:

This procedural morass arises under the provisions of the Uniform Enforcement of Foreign Judgments Act (Act) (Ill. Rev. Stat. 1989, ch. 110, pars. 12 — 601 through 12 — 617), which has since been repealed and its provisions rewritten (Pub. Act 87 — 358, eff. September 9, 1991 (1991 Ill. Laws 1921-22); see Ill. Rev. Stat. 1991, ch. 110, pars. 12— 627 through 12 — 634). Section 12 — 603 of the Act provided for the filing in the circuit court of a petition for registration of the judgment of another State or territory or a Federal judgment and states that “[t]he filing of the petition constitutes registration of the foreign judgment.” (Ill. Rev. Stat. 1989, ch. 110, par. 12 — 603; as rewritten, see Ill. Rev. Stat. 1991, ch. 110, par. 12 — 628.) Section 12 — 607 of the Act stated if the court, after hearing, refused “to set aside the registration, the registered judgment shall become a final judgment of the court in which it is registered, binding personally upon the defendant.” Ill. Rev. Stat. 1989, ch. 110, par. 12 — 607 (repealed).

On July 17, 1991, plaintiff E.M.E. Enterprises, Inc., filed a petition in the circuit court of McLean County to register a judgment of the Court of Common Pleas of Allegheny County, Pennsylvania, in the sum of $17,929.68 in plaintiff’s favor and against defendants Anvil Brand Shoe Co. and John Claudon. On August 29, 1991, the defendants filed a document entitled “MOTION TO DISMISS PETITION TO REGISTER FOREIGN JUDGMENT.” On September 4, 1991, an order was entered stating that after a hearing, the motion was denied. Various supplementary proceedings took place. On December 6, 1991, defendants filed another motion to dismiss the petition for registration. An order was entered on December 12, 1991, which indicated that, as to the defendant Claudon, a hearing was held on a motion “to dismiss the foreign judgment” because the Pennsylvania court lacked jurisdiction to enter the judgment upon which the instant petition for registration was based. The circuit court denied that motion upon the ground that it was not verified.

On December 26, 1991, defendants filed a petition seeking leave to appeal to this court from the order of December 12, 1991, denying defendants’ motion to dismiss. This petition was based upon Supreme Court Rule 306(aXlXiü)> which permits the appellate court to grant leave to appeal orders “denying a motion to dismiss on the' grounds that the defendant has done nothing which would subject him to the jurisdiction of the Illinois courts” (134 Ill. 2d R. 306(a)(1)(iii))- On January 10, 1992, this court allowed defendants’ motion to dismiss their petition for leave to appeal.

On January 14, 1992, defendants filed a document entitled “POST TRIAL MOTION,” requesting the circuit court to reconsider its order of December 12, 1991, denying defendants’ second petition seeking dismissal. The common law record presented indicates this motion was actually heard and denied on January 10, 1992. On January 14, 1992, defendants filed a notice of appeal from the January 10, 1992, order denying their post-trial motion.

On appeal, defendants maintain that the petition for registration should have been denied because (1) petitioner did not comply with section 12 — 603 of the Act because the petition was not verified; and (2) petitioner failed to show that the Pennsylvania court had jurisdiction of the person of the defendants when it entered the money judgment against them. Plaintiff maintains that we 'have no jurisdiction over this appeal, and that if we do (1) its petition to register was verified; and (2) defendants had the burden of showing any lack of personal jurisdiction over them in regard to the Pennsylvania judgment.

We agree with plaintiff that we have no jurisdiction of this appeal, because the circuit court order of September 4, 1991, denying defendants’ motion to dismiss was a final order disposing of the case and appealable as a matter of right pursuant to Supreme Court Rule 301. (134 Ill. 2d R. 301.) No additional motion was made by defendants to set aside that order within 30 days thereafter, and the court lost jurisdiction to modify the order. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1203(a).) No motion for extension of time to file notice of appeal pursuant to Supreme Court Rule 303(e) was ever presented to this court. (134 Ill. 2d R. 303(e).) Thus, defendants failed to comply with the requirement of Supreme Court Rules 303(a)(1) and (a)(2) (134 Ill. 2d Rules 303(a)(1), (a)(2)) that notice of appeal from a final judgment must usually be filed within 30 days of the entry of the judgment when no timely post-hearing motion has been filed.

Ordinarily, the denial of a motion to dismiss is not a final order. However, as we have indicated, section 12 — 603 of the Act provided that the filing of the petition to register “constitutes registration of the foreign judgment.” (Ill. Rev. Stat. 1989, ch. 110, par. 12 — 603.) Section 12 — 607 of the Act then stated that a refusal “to set aside the registration” becomes “a final judgment.” (Ill. Rev. Stat. 1989, ch. 110, par. 12 — 607.) A motion to dismiss the petition for registration after registration has taken place can only be construed as a request “to set aside the registration” which, upon denial, creates a “final judgment.”

No argument is made here that anything that happened more than 30 days after the entry of the September 4, 1991, order revested the circuit court with jurisdiction to hear further motions by defendants. Accordingly, we dismiss the appeal.

Appeal dismissed.

McCULLOUGH and LUND, JJ., concur.