text:
    PATSY H. ADAMS, Indiv. and as the Adm’r of the Estate of Gilbert Adams, Deceased, Plaintiff, v. IAN TURNER et al., Defendants (Patsy H. Adams, Petitioner-Appellee and Cross-Appellant; Katherine Poole et al., Respondents-Appellants and Cross-Appellees).
    Fifth District
    No. 5—89—0447
    Opinion filed May 9, 1990.

      Raymond Lawler, P.C., of Marion, for appellants.
    Barbara L. Woodcock, of Marion, for appellees.
   JUSTICE HARRISON

delivered the opinion of the court:

Katherine Poole and Deanna Young, the adult children of decedent, Gilbert Adams, appeal from an order of the circuit court of Williamson County which awarded them each $2,000 as their share of a $500,000 settlement obtained in the wrongful death action brought by the administrator of the decedent’s estate, Patsy Adams. Adams was the decedent’s second wife and the stepmother of Poole and Young. On this appeal, Poole and Young claim that their shares of the wrongful death settlement were disproportionately small because those shares did not accurately reflect the loss of their father’s society which they experienced when their father was killed. They therefore request that their shares of the settlement proceeds be increased from $2,000 each to $36,227.60 each. Patsy Adams cross-appeals, arguing that Poole and Young were not entitled to even the $2,000 they each received. In Adams’ view, Poole and Young should not have been permitted to share in the settlement proceeds at all. For the reasons which follow, we find that the circuit court did not abuse its discretion in distributing the settlement proceeds as it did. We therefore affirm.

The decedent, Gilbert Adams, was killed in a mine accident in 1986. Patsy Adams, his wife, was appointed the administrator of his estate. She filed a wrongful death action against defendants, Ian Turner and N.E.1. Peebles, Ltd., pursuant to the Wrongful Death Act (Ill. Rev. Stat. 1985, ch. 70, par. 1 et seq.) to recover for the loss of “the society of decedent, including companionship, love, affection, care, attention, comfort, guidance, protection and support, which decedent would have provided but for his death.” Following various developments not relevant here, the litigation was settled for $500,000, and the wrongful death action was dismissed.

Patsy Adams, as administrator of Gilbert Adams’ estate, then petitioned the circuit court to “apportion and distribute” the proceeds of the wrongful death settlement. Stipulations were entered into regarding the workers’ compensation lien held by the decedent’s employer, Old Ben Coal Company; an evidentiary hearing was conducted; and legal memoranda were submitted to the court. Based upon the stipulations, evidence, and arguments of counsel, the circuit court held that the approximate present value of Patsy Adams’ right to receive future workers’ compensation benefits, calculated as of August 1, 1989, amounted to $162,276. The court noted that an annuity had been purchased for that amount which will pay Patsy Adams $1,500 a month for 17 years in 204 equal installments. Under the terms of the stipulations between Patsy Adams and Old Ben Coal Company, Old Ben was discharged and released from having to make any future workers’ compensation payments to Adams after August 1,1989.

The court also held: (1) that Old Ben Coal Company had an existing workers' compensation lien as of August 1, 1989, in the amount of $53,787.04; (2) that Old Ben should pay the estate’s attorneys $46,726.37 in attorney fees pursuant to section 5 of the Workers’ Compensation Act (Ill. Rev. Stat. 1985, ch. 48, par. 138.5) and reimburse those attorneys $7,060.67 as its share of the costs of the litigation; and (3) that the estate’s attorneys should receive a fee of $74,950.67 and costs of $8,986.29 payable from the settlement proceeds.

After deductions were made from the settlement proceeds for the cost of the annuity, the payment of the workers’ compensation lien held by the decedent’s employer, and the attorney fees and costs of the estate’s lawyers, $200,000 remained. Of this, the court awarded $196,000 to Patsy Adams. In support of its award, the circuit court found that Adams had sustained “a great loss of society and companionship” and that when decedent had died, Adams had lost her sole means of support. By contrast, the court found that the decedent’s two adult children, Katherine Poole and Deanna Young, had not been financially dependent upon the decedent and that their contacts with their father had been sporadic and limited. Accordingly, it awarded the two children the much more modest sum of $2,000 each.

From this judgment, Katherine Poole and Deanna Young have appealed, and Patsy Adams has cross-appealed. On these appeals, the sole dispute concerns the size of the shares of the settlement proceeds awarded to the daughters. The daughters claim they should have received more. Patsy Adams claims that they should have received nothing.

The division of an award in a wrongful death action is left to the circuit court’s discretion. (In re Estate of Flake (1985), 137 Ill. App. 3d 535, 536, 484 N.E.2d 1243, 1244.) Accordingly, the question before us on review is whether the circuit court abused its discretion in apportioning the wrongful death settlement proceeds as it did. (See 137 Ill. App. 3d at 536, 484 N.E.2d at 1244; In re Estate of Wiese (1989), 178 Ill. App. 3d 938, 942, 533 N.E.2d 1183, 1185.) In determining whether a circuit court has abused its discretion, the issue is not whether the reviewing court agrees with the circuit court, but whether the circuit court acted arbitrarily without the employment of conscientious judgment or, in view of all the circumstances, exceeded the bounds of reason and ignored recognized principles of law so that substantial prejudice resulted. (In re Marriage of Aud (1986), 142 Ill. App. 3d 320, 326, 491 N.E.2d 894, 898.) We do not believe that an abuse of discretion occurred in this case.

The Wrongful Death Act (Ill. Rev. Stat. 1985, ch. 70, par. 2), provides, in part:

“The amount recovered in any [wrongful death] action shall be distributed by the court in which the cause is heard or, in the case of an agreed settlement, by the circuit court, to each of the surviving spouse and next of kin of such deceased person in the proportion, as determined by the court, that the percentage of dependency of each such person upon the deceased person bears to the sum of the percentages of dependency of all such persons upon the deceased person.”

This statute has been interpreted to mean that where, as here, the claimants to the proceeds of a wrongful death settlement consist of the surviving spouse and the decedent’s adult children by a prior marriage, the distribution of those proceeds must be determined on the basis of the proportionate percentages of their dependency on the decedent. (In re Estate of Wiese (1989), 178 Ill. App. 3d 938, 941, 533 N.E.2d 1183, 1185.) In the case before us, there is no dispute that neither of the decedent’s adult daughters was financially dependent upon him. “Dependency,” however, is not limited simply to financial dependency. It also includes loss of society. (178 Ill. App. 3d at 941, 533 N.E.2d at 1185.) Accordingly, an adult child may recover a proportionate share of the proceeds of a wrongful death settlement if she has sustained a loss of society, regardless of whether she was financially dependent upon the deceased parent. 178 Ill. App. 3d at 942, 533 N.E.2d at 1185.

Under Illinois law, adult children are entitled to a presumption of substantial pecuniary injury in the loss of their deceased parent’s society. (Cooper v. Chicago Transit Authority (1987), 153 Ill. App. 3d 511, 518-19, 505 N.E.2d 1239, 1243-44.) Nevertheless, this presumption may be rebutted by contrary evidence. (153 Ill. App. 3d at 519, 505 N.E.2d at 1244.) In the face of contrary evidence, the presumption ceases to operate, and the trier of fact must base its decision on the actual facts and circumstances established by the evidence. See Scheibel v. Groeteka (1989), 183 Ill. App. 3d 120, 139-40, 538 N.E.2d 1236, 1249.

In the matter before us, considerable evidence was presented regarding the relationship between the decedent and his adult daughters and the loss of society which those daughters experienced when their father was killed. That evidence showed that the decedent had divorced the daughters’ mother when they were quite young. The mother had custody of the daughters, and for many years they did not communicate with the decedent at all. As the daughters grew older, they reestablished contact with the decedent. As the trial court indicated in its judgment, however, their contact with decedent was sporadic at best.

The decedent and his daughters did not live particularly close to one another. He resided in Herrin, which is in Williamson County, while Deanna lived in Springfield and Katherine lived in St. Clair County. According to Patsy Adams, decedent’s second wife, the daughters never called their father or sent him a card on his birthday. They rarely acknowledged him on Fathers’ Day, and never sent him a Fathers’ Day gift. Neither Deanna nor Katherine spent Christmas or Thanksgiving with the decedent, although they were invited to do so.

Katherine testified that she always attempted to see the decedent at some point during the holiday season. On the other hand, she stated that in the year or two prior to decedent’s death, she saw the decedent only once. She claims that she lost touch with everyone during this period because she had had a nervous breakdown. Deanna, for her part, testified that her family would visit the decedent in Herrin “three or four times a year, at least.”

The decedent was evidently quite fond of his grandchildren, the daughters’ children. According to one of decedent’s grandsons, “he never missed our birthdays and we got Christmas cards and presents.” The decedent also bought presents for Deanna and Katherine. Katherine testified that she had bought the decedent a knife which she intended to give him as a Christmas present before he died, but gifts to decedent from his daughters were evidently uncommon.

Deanna stated that she enjoyed decedent’s company and was very upset when he was killed. She stated that the decedent would give her advice if she came to him with a problem and that he would comfort her. Paul Van Eckhout, a longtime friend of the decedent, recalled the relationship as being somewhat different. He remembered that “most of the time when [decedent] discussed the [daughters] he was angry at them.” In his will, the decedent acknowledged his daughters, but left them nothing. Deanna understood that the decedent planned to change his will to make some provision for his daughters, but no new will was ever executed.

Under the Wrongful Death Act (Ill. Rev. Stat. 1985, ch. 70, par. 1 et seq.), calculation of the loss suffered by the decedent’s survivors is not subject to mathematical determination. (In re Estate of Flake (1985), 137 Ill. App. 3d 535, 537, 484 N.E.2d 1243, 1245.) Translating the loss into dollar terms is particularly difficult where, as in the case of the decedent’s daughters, the loss claimed is comprised exclusively of deprivation of the companionship, guidance, advice, love and other elements establishing “loss of society.” These are abstract and elusive concepts which cannot be gauged simply by the number of gifts or greeting cards people have exchanged at holidays or the amount of time they have spent together. Still, there can be no real dispute that the relationship between the decedent and his daughters here was far from close.

On the other hand, we are mindful that the decedent and his daughters were emerging from a troubled history colored by a divorce which had resulted in their separation for many years. A reconciliation, belated though it may have been, was evidently underway. Tensions certainly remained. It is evident, however, that a very real bond existed between the decedent and his daughters. We must therefore conclude, as did the trial court, that the daughters suffered some compensable loss of society when their father was killed. Correspondingly, we must reject Patsy Adams’ argument that the daughters were not entitled to any share of the proceeds of the wrongful death settlement.

Although the daughters did suffer a compensable loss of the decedent’s society, their dependency upon him was negligible when compared with that of the decedent’s second wife, Patsy Adams. At the time of decedent’s death, Adams had been married to him for 24 years. The record shows that theirs was a close and caring relationship. They traveled together, they spent their evenings together, and they shared hobbies, such as fishing and antique collecting. Although they had separate bedrooms, they remained sexually active.

Decedent made a substantial contribution to the upkeep of the household. He managed the household finances, he performed all of the repair work that was required, he helped clean house, and when Adams was still working, he would cook dinner for her.

Although Adams had held various jobs during the marriage, she stopped working in 1979 at her husband’s request. After that time, the decedent was her sole source of support. Adams testified that whenever she needed money she would ask decedent for it and that he never turned down her request.

Because Adams’ dependency upon the decedent was so complete, while the daughters’ was so modest, we cannot say that the circuit court abused its discretion in limiting the daughters’ share of the wrongful death settlement proceeds to $2,000 each. The judgment of the circuit court of Williamson County is therefore affirmed.

Affirmed.

LEWIS, P.J., and GOLDENHERSH, J., concur. .


source: Caselaw Access Project

author: JUSTICE CHAPMAN

license: Public Domain

text:
    MORSKI & ASSOCIATES, INC., Plaintiff-Appellee, v. R & R RESOURCES, INC., Defendant-Appellant.
    Fifth District
    No. 5—89—0047
    Opinion filed May 9, 1990.

      William D. Stiehl, Jr., of Wimmer, Stiehl & Montalvo, P.C., of Belleville, for appellant.
    Thomas Benedick, of O’Fallon, for appellee.
   JUSTICE CHAPMAN

delivered the opinion of the court:

Morski and Associates, Inc. (Morski), entered into a contract with R&R Resources, Inc. (R&R), whereby Morski was to prepare a permit application to the Illinois Department of Mines and Minerals so that a permit would be issued to R&R, which is in the business of mine reclamation. The contract provided that R&R was to pay Morski a fee not to exceed $40,000, and interest at the rate of 2% per month on all unpaid amounts under the contract.

Morski filed a complaint in circuit court on December 29, 1987, alleging that it had performed all provisions required of it under the contract or, in the alternative, that R&R had prevented Morski from performing its contractual obligations. Morski alleged in its complaint that R&R had failed and refused to make payments as required under the contract. The complaint prayed that judgment for breach of contract be entered in Morski’s favor in the amount of $40,000, plus interest as provided in the contract. Service of the complaint on R&R via its registered agent, Robert Robeson, was made January 5, 1988. On February 8, 1988, a default judgment was entered in plaintiff’s favor and against R&R in the sum of $53,023.71. R&R filed a petition for relief from judgment pursuant to section 2 — 1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—1401), on May 12, 1988. After a hearing on the matter, the court entered an order denying R&R’s petition. R&R appeals the trial court’s decision, raising the sole issue whether the trial court abused its discretion in denying R&R’s petition for relief.

In order to prevail in a petition for relief from judgment pursuant to section 2—1401, the petitioner must prove his right to the relief sought by a preponderance of the evidence. (Mitchell v. Seidler (1979), 68 Ill. App. 3d 478, 482, 386 N.E.2d 284, 286.) The Mitchell court set forth what the petitioner has to demonstrate to obtain relief under section 72 of the Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, par. 72), which is now section 2—1401:

“(1) the existence of a meritorious defense or claim [citation];
(2) due diligence in presenting this defense or claim in the original action [citation];
(3) that through no fault or negligence of his own an error of fact or a valid defense or claim was not made to appear to the trial court at the time and the challenged judgment, order or decree was entered [citation];
(4) due diligence in filing the [petition for relief from judgment] [citation].” Mitchell, 68 Ill. App. 3d at 482, 386 N.E.2d at 286.

R&R represents that it has a meritorious defense to the underlying cause of action in that R&R expects to prove that Morski breached the contract and is not entitled to judgment as a matter of law. R&R further alleges that R&R filed no responsive pleading prior to entry of the judgment because R&R’s president was ill. Attached to the petition for relief is the affidavit of Robert Robeson, president and chief executive officer of R&R. Robeson states in his affidavit that he is 51 years of age, has suffered three heart attacks, and suffers from an arterial blockage, an aneurysm, and Parkinson’s disease. He further states that after being served with the complaint on January 5, 1988, he mailed the summons and complaint to Ray Renner, vice-president of R&R, because Robeson’s doctor advised Robeson not to make the three-hour drive from his home to Belleville to answer the complaint. Ray Renner’s affidavit, attached to the petition, states that he did not receive the summons and complaint from Robeson until after 30 days had lapsed from entry of the judgment. Renner further states in his affidavit that within two weeks of receiving the summons and complaint, he consulted an attorney to have the judgment vacated.

At the hearing on R&R’s petition for relief, Ray Renner testified that he initially learned of the lawsuit against R&R during a telephone conversation with Robert Robeson. Robeson advised Renner during that conversation that he received a summons from Morski & Associates. Renner testified that Robeson did not ask him to take care of the matter, nor did he discuss getting an attorney. Renner testified that he is a 40% owner of the corporation, and that Robeson has been president and registered agent for the corporation since it was formed in 1981. When asked on cross-examination whether Robeson has always been in charge of handling the business affairs from the start of the corporation to the present time, Renner testified, “Well, he’s been sick. He was, and he’s been sick. He’s had a couple of heart attacks since then.” Renner testified that after the telephone conversation with Robeson, he assumed Robeson was handling the matter. It was not until the bank notified Renner that R&R’s account had been frozen pursuant to a garnishment proceeding that Renner was aware that a judgment had been entered against R&R.

Robert Robeson did not testify at the hearing on R&R’s petition for relief; therefore, the parties entered his previous deposition testimony into evidence. Robeson’s deposition testimony revealed that during January of 1988, the month he was served with the underlying complaint in this cause of action, he was taking medication to treat Parkinson’s disease, his heart disorder, and other ailments. Robeson testified that although he had to quit taking some of his medication because it caused him to become confused, he did recall being served with the complaint filed by Morski. Robeson testified that when he was served with the summons and complaint he read the documents and was under the impression he had to appear in Belleville, Illinois, to answer the complaint. He did not travel to Belleville, however, because his doctor advised him to avoid such lengthy trips. Robeson did not consult an attorney regarding the matter, but did call Renner to advise him of the litigation and then forwarded the summons and complaint to Renner to handle at his discretion. Robeson did not recall whether during the telephone conversation he advised Renner that he would mail the summons and complaint to him.

Whether a section 2—1401 petition should be granted lies within the sound discretion of the trial court. (People ex rel. Johnson v. Payne (1984), 127 Ill. App. 3d 398, 403, 469 N.E.2d 270, 274.) Based on the facts of this case, we do not believe the trial court abused its discretion in denying R&R’s petition for relief from judgment.

R&R maintains that it has demonstrated a meritorious defense, namely, that there was a failure of consideration on behalf of Morski in that Morski failed to perform under the contract. R&R also contends that it exercised due diligence in presenting this defense in the original action and that through no fault of its own did it fail to present this defense to the court. Defendant also argues that due diligence was demonstrated on its behalf in filing the petition for relief from judgment.

R&R failed to demonstrate that it exercised the requisite due diligence of section 2—1401. Notwithstanding Robeson’s testimony as to his physical infirmities, the evidence was sufficient to establish that Robeson was aware of the urgency of the pending litigation, yet he failed to see to it that the matter was properly handled. Although the evidence reveals that Robeson did contact Renner upon being served with the summons and complaint, it appears that neither of them acted reasonably in resisting the judgment. (Hogan & Farwell, Inc. v. Meitz (1976), 45 Ill. App. 3d 216, 220-21, 359 N.E.2d 740, 743.) As evidenced by the record and Robeson’s testimony, the only action taken by him with regard to the lawsuit was telephoning Renner to inform him of the litigation, and forwarding the summons and complaint to Renner without any instruction as to the course to take. When advised of the pending litigation, Renner failed to inquire of the status of the defense of the action, even though he was vice-president and 40% owner of R&R, and was aware that Robeson had been ill. Renner’s testimony indicates that after receipt of the summons and complaint he did not contact an attorney regarding the matter for two weeks. It is the duty of a defendant, once the court acquires jurisdiction, to follow the case, and section 2 —1401 is not intended to relieve a party from the consequences of his own mistake or negligence. Esczuk v. Chicago Transit Authority (1968), 39 Ill. 2d 464, 467, 236 N.E.2d 719, 720.

R&R maintains that even if it failed to act with due diligence, equity and justice require that the default judgment be vacated. Defendant relies on Elfman v. Evanston Bus Co. (1963), 27 Ill. 2d 609, 190 N.E.2d 348, in arguing that fairness and justice require the exercise of our equitable powers to grant relief from the judgment. R&R has not alleged any fraud by Morski; however, R&R contends that to permit the judgment awarding the full contract price plus interest to stand would sanction an unfair advantage Morski has taken over R&R. R&R also charges Morski with impropriety in not informing it of entry of the default judgment until Morski began to execute on the judgment 30 days after its entry.

While failure to notify defendant of the entry of a default judgment may be considered (Elfman, 27 Ill. 2d 609, 190 N.E.2d 348), it does not make the judgment void. (Falcon Manufacturing Co. v. Nationwide Brokers, Inc. (1984), 123 Ill. App. 3d 496, 500, 462 N.E.2d 562, 566.) Furthermore, we do not find Elfman controlling in this case since there has been no showing that plaintiff acted fraudulently or unconscionably. This is not a case where defendant can call upon equity to remedy the ills which it has brought upon itself. In light of the foregoing, we find that the trial court did not abuse its discretion in denying R&R’s petition for relief from judgment.

Affirmed.

RARICK and WELCH, JJ., concur.


author: JUSTICE RARICK

text:
    ROBERT A. KNOTT, Plaintiff-Appellee, v. THE ILLINOIS RACING BOARD et al., Defendants-Appellants.
    Fifth District
    No. 5—89—0358
    Opinion filed May 10,1990.

      Neil E Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Daniel N. Malato, Assistant Attorney General, of Chicago, of counsel), for appellants.
    K. Douglas Hamman, of Frierdich, Lopinot & Morris, of Columbia, for appellee.
   JUSTICE RARICK

delivered the opinion of the court:

Plaintiff, Robert Knott, was a licensed horse trainer who raced horses in the Chicago area. On May 15, 1987, the Steward’s Office at Maywood Park in Cook County issued a “Stewards Ruling” suspending Knott for one year after one of his horses which had just won a race tested positive for drugs. Knott appealed to the Illinois Racing Board (Board), but before a hearing could be held, filed a complaint in the circuit court of St. Clair County seeking a temporary restraining order and preliminary injunction barring the suspension until the Board made its ruling. The complaint alleged that if the suspension were not restrained, Knott would suffer irreparable harm in the form of lost income and future business. On May 19, 1987, the court denied defendant’s motion to transfer venue to Cook County and granted the temporary restraining order. Knott subsequently amended his complaint, adding an allegation that his prehearing suspension was unconstitutional because the horse was in a “security barn” several hours before the race and he had no control over it at that time. A hearing was held on May 30, 1987, after which the court granted a preliminary injunction effective until the Board issued a ruling, finding that Knott would suffer irreparable harm if the injunction was not granted. The Board appeals both the May 17, 1987, and May 30, 1987, orders.

On appeal, the Board argues that venue was not proper in St. Clair County and that the trial court erred in denying its motion to transfer venue to Cook County.

We first address the question of venue. Venue is proper in the county of residence of any defendant or in the county in which the transaction or any part thereof occurred. (Ill. Rev. Stat. 1987, ch. 110, par. 2—101.) While the venue statute does not specifically provide for the determination of the county of residence for a State agency, section 2—103 of the Code of Civil Procedure provides that the county of residence for any public, municipal, governmental, or quasi-municipal corporation is the county where its “principal office” is located. (Ill. Rev. Stat. 1987, ch. 110, par. 2—103.) This section has been used to determine the county of residence of the Department of Transportation (Lake Ka-Ho, Inc. v. Kramer (1985), 131 Ill. App. 3d 782, 475 N.E.2d 1379), and we believe the present case is analogous. The Illinois Racing Board’s principal and only office, the steward’s office that issued the ruling, and Maywood Park are all located in Cook County. Further, all parts of the “transaction” in question, the race, the drug testing, and the issuance of the steward’s ruling all occurred in Cook County. We conclude that venue is clearly appropriate in Cook County and not in St. Clair County.

We also find that the trial court erred in granting both the temporary restraining order and the preliminary injunction. Generally, administrative remedies must be exhausted before judicial relief can be sought except where: (1) a statute or ordinance is attacked as unconstitutional on its face; (2) multiple remedies exist before the agency and at least one has been exhausted; (3) irreparable harm will result from further pursuit of administrative remedies; or (4) it would be patently useless to seek relief before the administrative agency. Graham v. Illinois Racing Board (1979), 76 Ill. 2d 566, 394 N.E.2d 1148.

The determination of whether injunctive relief should issue, however, should be made only after the Board has held a hearing and has failed to render a decision within a reasonable period of time. (Morgan v. Illinois Racing Board (1987), 155 Ill. App. 3d 611, 508 N.E.2d 762.) In Morgan, the plaintiff was a horse trainer who was suspended for racing a horse following illegal and unreported cryosurgery. Morgan sought a temporary restraining order and preliminary injunction enjoining his suspension pending administrative review of the suspension by the Board. The court held that the Illinois Horse Racing Act of 1975 (Ill. Rev. Stat. 1987, ch. 8, par. 37—1 et seq.) adequately protected plaintiff’s due process interests, i.e., his property interest in his occupation license, and that the summary suspension would violate Morgan’s due process rights only if the Board delayed rendering a decision for an unreasonable period of time. As the Board has not yet held a hearing in the present case, issuance of injunctive relief was not appropriate.

Knott cites Kurtzworth v. Illinois Racing Board (1981), 92 Ill. App. 3d 564, 415 N.E.2d 1290, for the proposition that the trial court properly enjoined his summary suspension. In Kurtzworth, this court held that the general rule requiring exhaustion of administrative remedies was not applicable because no attack was being made against any order of the Board and that both the Board and the plaintiff were free to pursue the administrative remedies, and because the preliminary injunction served only to arrest the summary suspension pending the conclusion of the administrative process. (Kurtzworth, 92 Ill. App. 3d at 573, 415 N.E.2d at 1298.) The court also held that there were circumstances where a court exercising its traditional and inherent chancery powers could intervene in the administrative process by issuing an injunction in order to maintain the status quo pending the completion of the administrative hearing process and the issuance of a decision by the agency. The court referred to the availability of adequate alternative relief, the necessity to prevent irreparable injury, and the deprivation of some constitutional right without due process. (Kurtzworth, 92 Ill. App. 3d at 585, 425 N.E.2d at 1205.) The court went on to uphold the injunction without a discussion of how these factors supported the injunctions.

We believe the rule announced in Morgan, that injunctive relief should only issue when the Board has unreasonably delayed in rendering its decision, adequately addresses the factors set forth by the Kurtzworth court. The Illinois Horse Racing Act of 1975 (Ill. Rev. Stat. 1987, ch. 8, par. 37—1 et seq.) provides that once an occupational licensee has been suspended, he may request a hearing within five days and that the Board shall hold the hearing within seven days. Only where the Board delays making a decision for an unreasonable period of time is the licensee left without an adequate remedy, possibly subject to irreparable injury in the form of lost income, or deprived of his property without due process.

In any event, we are not persuaded by Knott’s arguments in support of the injunction. Of the four exceptions to the general rule discussed above, only one and three arguably apply here. Knott argues that his suspension was unconstitutional because his horse was in a “security barn” where he did not have sole control over it. This argument is not of constitutional dimension. Prehearing suspensions in and of themselves are not violative of due process (Barry v. Barchi (1979), 443 U.S. 55, 61 L. Ed. 2d 365, 99 S. Ct. 2642), and the State’s interest in preserving the integrity of the sport of horse racing and protecting the public from harm authorizes such suspensions. (Phillips v. Graham (1981), 86 Ill. 2d 274, 427 N.E.2d 550; Morgan, 155 Ill. App. 3d at 612, 508 N.E.2d at 763.) Furthermore, the trial court did not rule on Knott’s purported constitutional argument, finding it to be premature. Knott fails to satisfy the first exception to the general rule. We are also unpersuaded by Knott’s argument that he will suffer irreparable harm in the form of lost income and future business as a result of the suspension. Loss of income for a brief period pending administrative proceedings does not constitute irreparable harm (Graham, 76 Ill. 2d at 576, 394 N.E.2d at 1152) and provides no basis for injunctive relief unless the Board unreasonably delays rendering its decision. Morgan, 155 Ill. App. 3d at 616, 508 N.E.2d at 765.

For the foregoing reasons, the judgment of the circuit court of St. Clair County is reversed.

Reversed.

CHAPMAN and HOWERTON, JJ., concur.


author: JUSTICE WELCH JUSTICE HARRISON,

text:
    TERESA BOCHANTIN et al., Plaintiffs-Appellees, v. DENNIS PETROFF, Defendant-Appellant (Illinois Health Facilities, Inc., d/b/a Oliver Anderson Hospital, Defendant).
    Fifth District
    No. 5—89—0185
    Opinion filed May 11, 1990.

      HARRISON, J., dissenting.
    Freeark, Harvey, Mendillo, Dennis & Wuller, P.C., of Belleville (Ray Freeark and Ransom P. Wuller, of counsel), for appellant.
    Dunham, Boman & Leskera, of East St. Louis (Edward L. Adelman, of counsel), for appellee.
   JUSTICE WELCH

delivered the judgment of the court:

Defendant, Dr. Dennis Petroff, appeals from the order of the circuit court of Madison County allowing plaintiffs’ motion for voluntary dismissal pursuant to section 2—1009 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1987, ch. 110, par. 2—1009).

Plaintiffs, Teresa and Matthew Bochantin, brought an action for medical malpractice in 1984 against Dr. Petroff and Southwestern Illinois Health Facilities, Inc., d/b/a/ Oliver Anderson Hospital. The hospital defendant was later dismissed from this case upon plaintiffs’ motion. The record from the court below indicates numerous discovery-related motions filed by both defendants, including motions to compel answers to interrogatories, motion for pretrial conference seeking court supervision of discovery, motion to set discovery deposition of plaintiffs’ expert and finally a motion to dismiss filed by Dr. Petroff in October 1988. Defendant alleged in the motion to dismiss that plaintiffs’ failure to set the deposition of its named expert barred the witness pursuant to Supreme Court Rule 220 (107 Ill. 2d R. 220), warranting dismissal of the complaint.

The background behind the filing of the motion to dismiss included what defendant alleges to be abusive manipulation of the discovery process. At a November 1985 pretrial conference, the court ordered a Rule 220 expert-disclosure schedule. Plaintiffs finally responded with the name of their expert but only after Dr. Petroff had obtained a dismissal of the complaint and they had obtained its reinstatement. Dr. Petroff then requested the setting of the deposition in January 1987. Over the next 18 months Dr. Petroff unsuccessfully attempted to set the expert’s deposition and in March 1988 again asked the court’s intervention by way of pretrial conference. The court ordered the expert produced for deposition within 45 days of its order. When the deposition had not yet been set five months after the time limit imposed by the court had expired, Dr. Petroff filed his motion to dismiss.

At the hearing on this motion on January 3, 1989, plaintiffs explained that their expert had refused to testify after being so instructed by his employer in November 1988. The court gave plaintiffs 30 additional days to replace their expert and disclose the identity to Dr. Petroff. Before the 30 days had run plaintiffs sought and obtained an additional 30 days to disclose their new expert, apparently on an ex parte basis. Dr. Petroff filed a motion to strike the court’s order granting the extension, citing the court’s earlier order which had specifically stated that there would be no more continuances. Before this motion was heard, however, plaintiffs requested and obtained a voluntary dismissal without prejudice.

The issues before this court on appeal involve interpretation of the rule stated by the supreme court in the recent case, Gibellina v. Handley (1989), 127 Ill. 2d 122, 535 N.E.2d 858. In Gibellina the court announced that effective February 22, 1989, the date of filing of the opinion, “the trial court may hear and decide a motion which has been filed prior to a section 2—1009 motion when that motion, if favorably ruled on by the court, could result in a final disposition of the case.” (Emphasis in original.) (Gibellina, 127 Ill. 2d at 137-38, 535 N.E.2d at 866.) The supreme court announced this rule in response to what it perceived as the myriad abusive uses by plaintiffs of their statutory right to voluntary dismissal under section 2—1009 of the Code, and the legislature’s failure to respond with amendment of the statute to prevent continued abuse. Gibellina, 127 Ill. 2d at 136, 535 N.E.2d at 865.

At common law, a plaintiff was permitted to take a nonsuit any time prior to entry of a decision by the judge or the jury. (Gibellina, 127 Ill. 2d at 132, 535 N.E.2d at 863.) The voluntary dismissal statute is somewhat more restrictive and provides as follows:

“The plaintiff, may, at any time before trial or hearing begins, upon notice to each party who has appeared or each such party’s attorney, and upon payment of costs, dismiss his or her action or any part thereof as to any defendant, without prejudice, by order filed in the cause. Thereafter the plaintiff may dismiss, only on terms fixed by the court (1) upon filing a stipulation to that effect signed by the defendant, or (2) on motion specifying the ground for dismissal, which shall be supported by affidavit or other proof. After a counterclaim has been pleaded by a defendant no dismissal may be had as to the defendant except by the defendant’s consent.” (Ill. Rev. Stat. 1987, ch. 110, par. 2-1009.)

Prior to the rule announced in Gibellina the only other restriction on the plaintiff’s liberal voluntary dismissal right was by way of the decision in O’Connell v. St. Francis Hospital (1986), 112 Ill. 2d 273, 492 N.E.2d 1322. In O’Connell the supreme court held that a trial court must rule on a defendant’s Rule 103(b) motion to dismiss for untimely service of process before it rules on plaintiff’s section 2—1009 motion to voluntarily dismiss and section 13—217 motion to refile. In so ruling the court may consider the circumstances surrounding plaintiff’s original service of process and the circumstances surrounding service of the refiled complaint. (O’Connell, 112 Ill. 2d at 283, 492 N.E.2d at 1327.) Courts consistently held prior to Gibellina that plaintiffs had an absolute right to voluntary dismissal without prejudice prior to commencement of trial, except when the defendant by prior motion was seeking a dismissal for lack of diligence in service of process.

Against this background we must examine Dr. Petroff’s arguments concerning the extent of Gibellina’s ruling. Defendant argues that a proper interpretation of Gibellina would mandate that where discovery abuses are manifestly apparent on the record the trial court must consider the defendant’s potentially dispositive motion before ruling on plaintiff’s motion for voluntary dismissal. In the alternative defendant argues that the trial court abused its discretion when it entered the January 19, 1989, order granting plaintiff an additional 30 days to locate an expert and when it granted the voluntary dismissal on February 23,1989.

We initially note that the trial court could properly have applied the Gibellina rule on February 23, 1989, in determining whether it could decide defendant’s motion to dismiss before plaintiff’s motion for voluntary dismissal. The supreme court specifically held that this rule should be applied prospectively only from the date the opinion was filed on February 22,1989.

Moreover, defendant properly notes in his reply brief that the Gibellina rule is not limited to pending defense motions for summary judgment, as were the three cases consolidated for purposes of the supreme court’s decision in Gibellina, but applies to any potentially dispositive defense motion. The decision of a trial court was recently vacated and remanded for consideration of the court’s discretionary authority under Gibellina because the trial court incorrectly found at the hearing on defendant’s motion for judgment pursuant to section 2—622 (Ill. Rev. Stat. 1987, ch. 110, par. 2—622), that Gibellina only applied to1 pending motions for summary judgment. (See Mizell v. Passo (1989), 192 Ill. App. 3d 435, 442, 548 N.E.2d 783, 787.) The court in Mizell found a discretionary authority to decide defendant’s motion before determining plaintiff’s motion for voluntary dismissal because the section 2—622 motion was a potentially final disposition of the case. (Mizell, 192 Ill. App. 3d at 441, 548 N.E.2d at 786.) Error is committed when a trial court refuses to exercise discretion due to the incorrect belief that it has no discretion as to the question presented. (Mizell, 192 Ill. App. 3d at 441, 548 N.E.2d at 787.) There is no evidence in the record, however, nor does defendant argue, that the trial judge did not recognize that he had a discretionary authority to decide defendant’s motion to dismiss prior to plaintiffs’ motion for voluntary dismissal.

Defendant’s argument, however, is not whether the trial court had the discretionary authority to consider his motion before plaintiffs’ motion. Dr. Petroff argues that based on the record of discovery abuse Gibellina required the court to rule on defendant’s motion first. Supreme court rules are to be construed in accordance with the appropriate provisions of the act concerning statutory construction. (107 Ill. 2d R. 2, citing Ill. Rev. Stat. 1981, ch. 1, par. 1001 et seq.) “May” is usually employed as implying permissive or discretional as opposed to mandatory action and is construed as “shall” or “must” only where necessary to carry out legislative intent or when rights of public or third persons depend upon exercise of power given. (Rankin v. Rankin (1944), 322 Ill. App. 90, 92-93, 54 N.E.2d 58, 59.) Defendant urges that the court’s discretion should be limited to require at least review of the prior pending defense motion in cases where the discovery process has been repeatedly abused or the abuses intended to be corrected by the Gibellina rule will continue, plaintiffs will be encouraged to forum shop, and lack of direction will create inconsistent decisions with no standard of review. What defendant proposes is revision of the Gibellina rule to require determination of the defense motion rather than making the court's authority to do so discretionary. While we acknowledge defendant’s concerns, we decline to adopt this proposed interpretation because it would further limit plaintiff’s statutory right of voluntary dismissal and because we find that the supreme court intended to afford discretion to the court, not a mandate. This construction is consistent with the question presented for review in Gibellina and the resulting rule announced. The Gibellina defendants each argued in their consolidated cases that once a motion has been filed for summary judgment, that motion should be heard prior to a plaintiff’s motion for voluntary dismissal. (Gibellina, 127 Ill. 2d at 131, 535 N.E.2d at 863.) The supreme court recognized that plaintiffs have used the voluntary dismissal statute in a myriad of ways ranging from the potentially abusive to the innocuous. (Gibellina, 127 Ill. 2d at 136, 535 N.E.2d at 865.) The trial judge is in the best position to determine the characterization of plaintiff’s use or abuse of the voluntary dismissal statute and can exercise his or her discretion accordingly. Moreover, as long as the dismissal order is subject to review, defendant has suffered no legal prejudice. Kahle v. John Deere Co. (1984), 104 Ill. 2d 302, 307, 472 N.E.2d 787, 789.

Defendant further argues that the trial court abused its discretion in allowing plaintiffs a second, 30-day extension in derogation of its prior order and in deciding plaintiffs’ motion prior to his pending motion to dismiss. Absent abuse of discretion, a reviewing court should not substitute its discretion for that of the trial court. (Asch v. Asch (1981), 100 Ill. App. 3d 293, 296, 426 N.E.2d 1066, 1068.) A trial court’s decision constitutes an “abuse of discretion” only where no reasonable person would take the view adopted by trial court. In re Marriage of Petrovich (1987), 154 Ill. App. 3d 881, 887, 507 N.E.2d 207, 211.

Plaintiffs argue that no abuse was present as the record indicates a last-minute defection of their expert and that defendant’s motion to dismiss was not in fact pending when they filed their motion for voluntary dismissal. Plaintiffs maintain that the motion to dismiss was effectively denied by the court’s order of January 3, 1989, when it granted them the 30-day extension and that the motion to strike did not revive the motion to dismiss. While the court may have abused its discretion by entering the order on January 19, 1989, granting plaintiffs an additional 30 days to name an expert in light of the ruling of January 3, 1989, we find that the error did not impact on the court’s decision to rule on and grant plaintiffs’ motion for voluntary dismissal on February 23, 1989. The motion to dismiss stated as grounds the discovery abuse by plaintiffs in failing to produce their expert for deposition. Defendant also claimed in his motion that the testimony of the expert would have been barred because of the scheduled trial date the following month. Rule 220 requires expert-witness discovery to be completed not later than 60 days before the anticipated trial date, and mandates disqualification of the expert as a witness for failure to make the disclosure or otherwise comply with the discovery contemplated by this rule. See 107 Ill. 2d R. 220(b).

Although the record is unclear, trial was either not set on the November 1988 docket or was continued. In any event the trial court considered not only the defense motion to dismiss but also the plaintiffs’ motion for extension of time to identify its expert at the January 3, 1989, hearing. We find that by granting plaintiffs the additional time to disclose a new expert as opposed to producing the previously disclosed expert for discovery, the court was acting pursuant to provisions of Rule 220 which allow for scheduling of disclosure of not previously known experts after the first pretrial conference. We also note that the court did not reset the trial date at the January 3, 1989, hearing. Therefore any new expert to be disclosed by plaintiffs would not have been automatically barred if plaintiffs failed to disclose his or her identity within 30 days of the January 3, 1989, order. We find that the trial judge could reasonably have determined, without abusing the discretion accorded by the Gibellina rule, to rule on plaintiffs’ motion for voluntary dismissal prior to defendant’s pending motion.

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

Affirmed.

GOLDENHERSH, J., concurs.

JUSTICE HARRISON,

dissenting:

I must dissent as in my view, under any reading of the Gibellina decision, the trial court should be reversed and this cause should be remanded with instructions to consider the motion to dismiss filed by defendant before granting plaintiffs’ motion to voluntarily dismiss. The supreme court noted in Gibellina that it has become clear that the allowance of an unrestricted right to dismiss and refile an action in the face of a potentially dispositive motion is infringing on the authority of the judiciary to discharge its duties fairly and expeditiously. To curb this abuse the supreme court determined that trial courts may, from the date of its decision, hear and rule on prior pending motions filed by the defense that would be dispositive of the case. It seems to me that the case sub judice is precisely the type of case contemplated by our supreme court.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. STEPHEN STEVENSON, Defendant-Appellant.
    Fifth District
    No. 5—88—0343
    Opinion filed May 14, 1990.

      Daniel M. Kirwan and Larry R. Wells, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    John Baricevic, State’s Attorney, of Belleville (Kenneth R. Boyle, Stephen E. Norris, and Ellen Eder Irish, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE RARICK

delivered the opinion of the court:

Stephen Stevenson was charged in the circuit court of St. Clair County with aggravated battery, armed violence, attempt (murder), and home invasion. He was found guilty by a jury on all counts and sentenced to concurrent 25-year terms of imprisonment on the armed violence, attempt (murder), and home invasion charges. No judgment was entered on the aggravated battery verdict.

On June 15, 1987, several phone calls were made to the home of Robert and Jane Winters. During one of the calls, which Jane had answered, Robert took the phone from her and recognized the voice of the defendant. Stevenson told Robert that he would kill him. The record indicates that Stevenson had previously had an affair with Jane Winters.

During the early morning hours of June 16, 1987, Stevenson appeared at the Winters’ bedroom window shouting “I’m here and you’re dead.” After throwing two bricks through the bedroom window, Stevenson kicked in the front door and chased Robert into the kitchen. Robert hit Stevenson with a stick at the same time Stevenson stabbed Robert in the chest with a knife. Robert dropped the stick, got behind Stevenson, and grabbed him by the throat. After a struggle, Stevenson held the knife against Robert’s stomach and threatened to stab him again. Robert broke free and went to the home of Katherine Winters, a nearby relative, who called an ambulance.

Jane Winters testified that she and Stevenson had been lovers from October 1986 through June of 1987. Jane Winters’ testimony corroborated Robert’s, and she further testified that after Robert had fled and as Stevenson was leaving, he put the knife to her throat and said, “You should die, not Bob, next time it will be you.” She also testified that Stevenson had threatened Robert before.

Bobby Winters, age 11, testified that on the evening in question, he was awakened by the sound of breaking glass and saw Stevenson through the window. He further testified that Stevenson kicked in the door and chased Robert into the kitchen. Bobby thereupon ran to Katherine Winters’ home. He stated that he did not see a knife in the defendant’s hand. Christina Winters, age nine, testified that she had been awakened by a loud noise and, upon coming into the living room, she saw Stevenson holding a knife to Jane Winters’ throat. Katherine Winters, Robert’s sister-in-law, testified that on the morning of June 16, 1987, Bobby Winters had run into her home and said Stevenson and Robert were fighting. Robert appeared a few moments later and said Stevenson had stabbed him. He was taken to the emergency room at Memorial Hospital in critical condition. The knife had struck an artery and surgery was performed immediately to stop the bleeding. The surgery took several hours and at one point the surgeon advised Robert’s family that he was near death. He was hospitalized for approximately two weeks, part of the time on a ventilator. The doctor who performed the surgery testified that Robert could have died from the wound.

Bob Barth, a Fairview Heights police officer, testified that upon being dispatched to the Winters’ home to investigate a possible stabbing, he found Stevenson, who said, “Yes, arrest me, I did it.” Sometime later, Stevenson said, “The faggot ain’t gonna die, is he, I hope — -I should have stabbed him a couple more times.” Officer Jeffrey Stratman also heard Stevenson make this remark, along with other remarks to the effect that he was glad the incident occurred in St. Clair County because Madison County judges were tougher, and that he wasn’t worried about jury trials because the previous year he had beaten three felony charges because of jury trials.

Officer Robert Lewallen testified that he overheard Stevenson tell other jail inmates that he had stabbed Winters, and that he “had been in jail five times and was going again.” Officer Philip Wisely testified that after waiving his Miranda rights, Stevenson admitted calling the Winters’ home, throwing a brick through the window, and stabbing Robert Winters. Stevenson also stated that he entered the Winters’ house after Robert did not answer his challenge to come out and fight.

Stevenson testified that he had gotten drunk and called Jane Winters on June 16, 1987. Robert took the phone away, threatened him, and challenged him to come over and fight. Stevenson went, intending to fight Robert with his fists. When Robert wouldn’t come outside, Stevenson kicked in the door. Robert was holding a stick, and Stevenson told him to put it down. When he wouldn’t, Stevenson drew a knife. Robert backed into the kitchen, and Stevenson followed him. When Robert struck him with the stick, Stevenson lost his balance and “jabbed” at Robert, striking him in the chest with the knife. Steven further testified that while leaving he told Jane Winters, “I ought to kill you,” but denied putting the knife to her throat.

Stevenson’s roommate testified that Stevenson told him that he had only wanted to talk to Jane Winters, but things got out of hand, and that he had not meant to stab Winters.

During deliberations, the jury requested a definition of “authority,” and asked if it could mean provocation. Over Stevenson’s objection, the court returned a supplemental instruction defining “authority” as “permission.”

The jury returned verdicts of guilty on all four counts. The trial court entered judgment on all but the aggravated battery charge, finding it to be a lesser-included offense.

Stevenson first argues that the jury was incorrectly instructed on the state of mind necessary for the offense of attempt (murder). In instructing the jury on the definition of attempt (murder), the trial court gave Illinois Pattern Jury Instructions, Criminal, No. 6.05 (2d ed. 1981) (hereinafter IPI Criminal 2d), which provides:

“A person commits the pífense of attempt when he, with intent to commit the offense of murder, does any act which constitutes a substantial step toward the commission of the offense of murder.
The offense attempted need not have been committed.”

The jury was further instructed pursuant to IPI Criminal 2d No. 6.07 that to sustain the charge of attempt, the State was required to prove:

“First: That the defendant performed an act which constituted a substantial step toward the commission of the offense of murder; and
Second: That the defendant did so with intent to commit the offense of murder.”

The court also gave IPI Criminal 2d No. 7.01, which provides:

“A person commits the offense of murder when he kills an individual if, in performing the acts which cause the death,
[ 1 ] he intends to kill or do great bodily harm to that individual or another.”

Stevenson maintains that while attempt (murder) requires the specific intent to kill, under the instructions as given, he could have been convicted of attempt (murder) based on either the intent to kill or do great bodily harm.

Instructions on the offense of attempt (murder) have been a consistent source of confusion where attempt (murder) is defined as taking a substantial step toward murder and murder is defined as causing death while possessing the intent to kill or do great bodily-harm. Clearly, attempt (murder) is a specific intent crime requiring proof of the defendant’s specific intent to kill the victim. (People v. Kraft (1985), 133 Ill. App. 3d 294, 478 N.E.2d 1154.) Instructions such as those given in the present case, which allow a conviction for attempt (murder) based on the intent to do great bodily harm, have been held to be error. People v. Harris (1978), 72 Ill. 2d 16, 377 N.E.2d 28; People v. Trinkle (1977), 68 Ill. 2d 198, 369 N.E.2d 888.

In the present case, the indictment charging Stevenson with attempt (murder) clearly indicates he could be convicted of attempt (murder) only if the State proved that he possessed the intent to kill Robert Winters. The indictment read as follows:

“THE SAID DEFENDANT, WITH THE INTENT TO COMMIT THE OFFENSE OF MURDER, IN VIOLATION OF ILLINOIS REVISED STATUTES, CHAPTER 38, SECTION 9-1, PERFORMED A SUBSTANTIAL STEP TOWARD THE COMMISSION OF THAT OFFENSE, IN THAT HE, WITHOUT LEGAL JUSTIFICATION AND WITH THE INTENT TO KILL BOBBY WINTERS, STABBED BOBBY WINTERS WITH A KNIFE.”

It is not clear whether the court read the indictment to the jury as the voir dire was not transcribed. In the State’s opening statement, however, the prosecutor indicated to the jury that to find Stevenson guilty of attempt (murder), they must find he intended to kill Winters. Likewise, during closing argument, defense counsel indicated that the jury must find that Stevenson intended to kill Winters. No mention was made of intending to do great bodily harm. The jury was thus aware from the beginning that the intent to cause great bodily harm to Winters was insufficient to support a verdict of guilty on the attempt (murder) count. We need not determine the effect of this, however, as Stevenson did not object to the instruction as given, nor did he raise the issue in a post-trial motion. Generally, failure to object or raise an issue in a post-trial motion waives that issue on appeal. (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.) This rule is not absolute. Substantial, defects in instructions may be reviewed on appeal despite a failure to object or to raise the issue in a post-trial motion if the interests of justice require and this exception will be invoked to correct grave errors or where the evidence is so close that fundamental fairness requires proper jury instructions. (People v. Thurman (1984), 104 Ill. 2d 326, 472 N.E.2d 414.) While instructions informing the jury that a person may be convicted of attempt (murder) based on mental states other than the intent to kill have been held to be error, they do not constitute grave error (People v. Roberts (1979), 75 Ill. 2d 1, 387 N.E.2d 331; People v. Bridges (1989), 188 Ill. App. 3d 155, 544 N.E.2d 43), and the evidence in this case can hardly be called close. We therefore conclude that Stevenson has waived any defect in the jury instructions.

Stevenson also argues that under our supreme court’s decision in People v. Reddick (1988), 123 Ill. 2d 184, 526 N.E.2d 141, the trial court incorrectly instructed the jury on murder, and therefore attempt (murder). In Reddick, the court held, in a prosecution for murder, a mitigating state of mind such as intense passion or an unreasonable belief that one’s actions were justified is an affirmative defense which once raised by the evidence must be disproved by the State. Stevenson maintains that in cases of attempt (murder), the State had a similar duty to disprove the existence of a sudden and intense passion such as that arising from his jealousy of Robert, his paramour’s husband. Again, because Stevenson failed to object to the murder instruction or raise this issue in a post-trial motion, it is waived. Enoch, 122 Ill. 2d at 185-88, 522 N.E.2d at 1129-31.

Even if not waived, we are not persuaded by Stevenson’s argument. Under the old voluntary manslaughter statute, the existence of a mitigating state of mind such as intense passion or an unreasonable belief that the use of force was justified operated to reduce the crime of murder to voluntary manslaughter. (Ill. Rev. Stat. 1985, ch. 38, par. 9—2.) Stevenson maintains that a mitigating state of mind would likewise reduce attempt (murder) to attempt (voluntary manslaughter). Attempt requires an intent to commit a specific offense and an act or acts constituting a substantial step toward the commission of the offense. Attempt (murder) requires the intent to commit murder and attempt (voluntary manslaughter), if such an offense did exist, would require the intent to commit voluntary manslaughter. The offense of voluntary manslaughter requires killing a person without lawful justification while acting out of sudden and intense passion or an unreasonable belief that the killing was justified. Therefore, attempt (voluntary manslaughter) would require the intent to kill without lawful justification coupled with a mitigating state of mind such as intense passion or unreasonable belief that one’s action was justified. Logically, one cannot intend to kill without lawful justification and still believe, however unreasonably, that one’s actions are justified. Therefore, there can be no attempt (voluntary manslaughter) in cases involving the unreasonable belief that the use of deadly force was justified. (People v. Reagan (1983), 99 Ill. 2d 238, 457 N.E.2d 1260; People v. Beacham (1989), 189 Ill. App. 3d 483, 545 N.E.2d 392; People v. Powell (1989), 180 Ill. App. 3d 315, 533 N.E.2d 1008.) Likewise, there can be no attempt (voluntary manslaughter) in cases where the alleged mitigating state of mind is a sudden and intense passion. The intent to commit an offense contemplates deliberation. Voluntary manslaughter resulting from a sudden and intense passion, however, precludes any deliberation, but can be found only where the passion engendered is sufficient to deprive a defendant of his self-control. One cannot intend such passion. People v. Weeks (1967), 86 Ill. App. 2d 480, 230 N.E.2d 12.

Even if the offense of attempt (voluntary manslaughter) did exist in situations where sudden and intense passion was the alleged mitigating state of mind, the evidence in this case is such that no reasonable jury could find that Stevenson acted out of a sudden and intense passion. The record indicates that an hour and a half elapsed between Stevenson’s phone call to the Winters’ home and his attack on Robert. Any passion engendered by the phone call would have dissipated long before the attack.

Stevenson also argues that under the instructions as given, it would be possible for him to receive a greater penalty for attempting to murder Robert than he would receive if Robert had been killed. The existence of a mitigating state of mind will operate to reduce a charge of murder to voluntary manslaughter, a Class 1 felony. Under the instructions as submitted, such a mitigating state of mind would not mitigate the charge of attempt (murder), a Class X felony. As a result, had Stevenson been acting under the influence of sudden and intense passion, he would have received a lesser punishment had Robert died. The penalty for a lesser offense, Stevenson argues, cannot be greater than that for a more serious offense. (People v. Wisslead (1983), 94 Ill. 2d 190, 446 N.E.2d 512.) Even if not waived by Stevenson’s failure to object to the murder instruction, we do not find his argument to be persuasive. Stevenson cites no authority for the proposition that voluntary manslaughter is a more serious offense than attempt (murder), and the legislature, in classifying attempt (murder) as a Class X felony and voluntary manslaughter as a Class 1 felony, clearly considered the former to be a more serious offense. See Wisslead, 94 Ill. 2d 190, 446 N.E.2d 512.

Stevenson next argues that the jury was prejudiced by the admission of various statements made by him, which were irrelevant and highly prejudicial. Officer Lewallen testified that Stevenson said, “I stuck the m— f- — . I’m going to jail. I’ve been there five times now and I’m going again.” Stevenson maintains that in addition to being irrelevant, this statement wrongfully introduced evidence of prior crimes, and such evidence is inadmissible. We disagree. Stevenson specifically admitted stabbing Robert Winters, and as an admission the statement is both relevant and admissible as an exception to the general rule excluding evidence of other crimes. People v. Free (1983), 94 Ill. 2d 378, 447 N.E.2d 218; People v. Williams (1987), 151 Ill. App. 3d 1010, 503 N.E.2d 1090.

Officer Jeffrey Stratman testified that Stevenson said he was “glad this was St. Clair County because Madison County judges get up on something like this and I’ll probably only get four years and then I could come back and finish the job.” Stevenson argues that this statement could only have served to arouse the jury, making it more inclined to find him guilty. Again, we find the statement to have been properly admitted. Stevenson’s reference to only getting four years and finishing the job serve as an admission that he in fact had stabbed Winters. Williams, 151 Ill. App. 3d at 1013, 503 N.E.2d at 1092-93; People v. Prante (1987), 147 Ill. App. 3d 1039, 498 N.E.2d 889.

Stratman also testified that Stevenson said he was not worried about jury trials because he had beaten three felony charges in the past year because of jury trials. He maintains that in addition to placing inadmissible evidence of other crimes before the jury, the State impermissibly placed evidence that he had previously availed himself of his constitutional right to a trial by jury. This statement was not emphasized during the State’s examination of Stratman, nor was it mentioned during closing argument. In light of the overwhelming weight of the evidence before the jury, we do not find this statement to be prejudicial error. See People v. Oden (1960), 20 Ill. 2d 470, 170 N.E.2d 582.

Stevenson further argues that admission of this statement requires a reversal of his conviction because, pursuant to a motion in limine, he was to be impeached with only one burglary conviction. The admission of the statements discussed above indicated to the jury that he had a criminal history other than the one burglary conviction, violating the terms of the motion in limine. Again, we consider any potential error harmless in light of the evidence against Stevenson.

Stevenson also maintains that his statement regarding having beaten three felony charges because of jury trials should not have been admitted into evidence because it was not disclosed pursuant to Supreme Court Rule 412(a)(ii), which requires disclosure of

“any written or recorded statements and the substance of any oral statements made by the accused or by a codefendant, and a list of witnesses to the making and acknowledgment of such statements.” (107 Ill. 2d R. 412(a)(ii).)

Where a defendant is prejudiced by the failure to disclose, the conviction must be reversed. (People v. Greer (1980), 79 Ill. 2d 103, 402 N.E.2d 203; People v. Eliason (1983), 117 Ill. App. 3d 683, 453 N.E.2d 908.) The evidence against the defendant in this case is overwhelming. Stevenson came to the Winters’ home, shouting “I’m here and you’re dead,” broke into the house, attacked Robert Winters and stabbed him with a knife. Even if Stevenson’s reference to past jury trials had been excluded, the remaining evidence of his guilt is clear and fully supportive of the convictions.

We note further that at Stevenson’s arraignment, the State’s Attorney discussed Stevenson’s statement about how he was glad the incident occurred in St. Clair County instead of Madison County. At trial, Officer Stratman testified that Stevenson made the above remark, and further testified that Stevenson went on to state that he wasn’t afraid of jury trials and that he had beaten three felony charges because of jury trials. Stevenson moved for a mistrial, arguing that he had not been informed pursuant to discovery that Stratman would testify as to the latter remark and that his ability to effectively cross-examine Stratman was thereby impaired. The trial court denied the motion, but told Stevenson he could recall the officer as an adverse witness. He did not do so, nor did he request a continuance and his failure to do so is fatal to his claim of unfair surprise. (People v. Smith (1982), 111 Ill. App. 3d 895, 444 N.E.2d 801.) When faced with a discovery violation, a trial court has numerous options under Supreme Court Rule 415(g)(i), including the granting of a continuance, exclusion of the evidence, or other appropriate relief. (107 Ill. 2d R. 415(g)(i).) An abuse of discretion will be found only where the violation prejudices the defendant and the court did not take steps to eliminate that prejudice. (People v. Weaver (1982), 92 Ill. 2d 545, 442 N.E.2d 255.) The court in this case took adequate steps to eliminate any possible prejudice to Stevenson.

Stevenson next contends that he was denied a fair trial by the instruction defining “authority” as “permission.” He argues that the term “authority” is a term of general usage needing no definition. Further, if any definition were needed, the one given by the trial court was too limited as it did not include the concepts of right, power, privilege, or justification, as well as permission.

The instruction was given in response to a request by the jury. At some point during its deliberations, the jury sent a note to the court asking if “authority” meant without provocation or authority granted by law. In response, the trial court gave the following instruction: “Black’s Law Dictionary defines authority as ‘permission.’ ” Although Black’s definition of authority is more extensive than this, “permission” is listed first as the most common definition.

The giving of supplemental instructions to the jury rests with the discretion of the trial court. (United States v. Keck (7th Cir. 1985), 773 F.2d 759; People v. Glass (1984), 128 Ill. App. 3d 869, 471 N.E.2d 595.) Likewise, granting or denying a jury’s request for a dictionary is also a matter of the trial court’s discretion. (See People v. Pelty (1987), 160 Ill. App. 3d 207, 513 N.E.2d 486; People v. Zeigler (1981), 100 Ill. App. 3d 515, 426 N.E.2d 1229.) We believe providing a dictionary definition is similarly a matter for the trial court’s discretion absent demonstration of prejudice to the defendant. We do not believe the instruction given in this case prejudiced Stevenson.

Finally, Stevenson argues that his armed violence conviction and either his attempt (murder) or home invasion convictions must be vacated as they are all based upon the same acts. The State concedes that the armed violence conviction must be vacated, but maintains that attempt (murder) and home invasion convictions are proper as they are not based upon the same acts. We agree. The offenses of home invasion and attempt (murder) each require proof of elements not necessary to the other, and neither is a lesser-included offense of the other. We also reject Stevenson’s contention that the cause must be remanded for a new sentencing hearing because it is not possible to tell the degree to which the court relied upon the multiple convictions in determining the sentence. Where the record does not demonstrate that the court was influenced in its sentencing on other offenses by a conviction which was subsequently vacated, remand for resentencing is unnecessary. People v. Payne (1983), 98 Ill. 2d 45, 456 N.E.2d 44.

For the foregoing reasons, the judgment of the circuit court of St. Clair County is affirmed in part, and vacated in part.

Affirmed in part; vacated in part.

LEWIS, P.J., and CHAPMAN, J., concur.


text:
    WABASH AND LAWRENCE COUNTIES TAXPAYERS AND WATER DRINKERS ASSOCIATION, Appellant, v. THE POLLUTION CONTROL BOARD et al., Appellees.
    Fifth District
    No. 5—89—0366
    Opinion filed May 14, 1990.

      John A Clark, of Croegaert, Clark & Hough, Ltd., of Olney, for appellant.
    Neil E Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Jan E. Hughes, Assistant Attorney General, of Chicago, of counsel), for appellee Pollution Control Board.
    Richard L. Kline, of Mt. Carmel, and William A. Speary, Jr., of Tenney & Bentley, of Chicago, for appellee K/C Reclamation, Inc.
    No brief filed for other appellee.
   JUSTICE RARICK

delivered the opinion of the court:

Appellant, Wabash and Lawrence Counties Taxpayers and Water Drinkers Association (hereinafter Association) seeks review of the decision of the Illinois Pollution Control Board (hereinafter PCB) affirming the approval granted by the Wabash County Board of Commissioners (hereinafter Commissioners) of K/C Reclamation, Inc.’s application for site suitability for a proposed regional pollution control facility in Wabash County. We affirm.

On January 12, 1987, K/C Reclamation, Inc. (hereinafter K/C), filed an application for approval of site location for a proposed sanitary landfill and recycling facility on a 45-acre portion of a 172-acre parcel of land in the northeast corner of Wabash County. According to the application, the landfill was designed to accept general municipal refuse and nonhazardous special water from the area, including Wabash and Lawrence Counties, with an expected useful life of approximately 70 years. The Commissioners approved the application on July 6, 1987, after holding the required public hearings. The PCB vacated the decision, however, on the basis the Commissioners did not have jurisdiction to make a determination concerning K/C’s application because K/C failed to comply with the notice requirements of section 39.2(b) of the Environmental Protection Act (hereinafter Act) (Ill. Rev. Stat. 1987, ch. 111½, par. 1039.2(b)). K/C refiled its original application for site-suitability approval with the Commissioners on January 20, 1988. After three days of public hearings, during which the transcript, exhibits and written comments from the hearings pertaining to K/C’s first application were incorporated, the Commissioners again approved site suitability. The Association, in turn, once again appealed the Commissioners’ decision to the PCB. This time, however, the PCB affirmed the Commissioners’ decision. The Association now appeals both decisions.

The Association, having been successful once, again attempts to find violations of the statutory notice requirements in order to thwart the jurisdiction of the Commissioners to grant K/C approval. This time, however, the Association’s argument is without merit. While it is true the notice requirements contained in section 39.2(b) of the Act are jurisdictional prerequisites which must be followed in order to vest the Commissioners with power to hear a landfill proposal (see Browning-Ferris Industries of Illinois, Inc. v. Pollution Control Board (1987), 162 Ill. App. 3d 801, 805-06, 516 N.E.2d 804, 807; Kane County Defenders, Inc. v. Pollution Control Board (1985), 139 Ill. App. 3d 588, 593, 487 N.E.2d 743, 746), the Association’s allegations of three instances of improper notice here simply are not supported by the record.

Under section 39.2(b), notice is required to be sent to all owners of property within 250 feet of the property line of the proposed facility. “Owners” are defined as those persons or entities appearing from the authentic tax records of the county in which such facility is to be located. (See Ill. Rev. Stat. 1987, ch. 111½, par. 1039.2(b).) The Association’s first claim of error involves property that was listed on the tax records as owned by the heirs of a certain individual. It is true only one heir received notice, but only that heir was listed by name and address in the tax records to receive the tax statement on behalf of all the heirs. As K/C notified the owner of the property appearing from the authentic tax records, the PCB properly found the notice complied with section 39.2(b) of the Act even though all of the heirs did not receive personal notice. In the second instance of alleged error, the tax records listed a bank as owner of a certain parcel of land. The bank was duly notified. The fact that an individual was purchasing the land by contract for deed from the bank is irrelevant when that individual was not included in the tax records. Accordingly, K/C was not statutorily required to provide notice to the purchaser. The same holds true for the third instance of alleged improper notice. The fact that an individual may be living on neighboring property but is not listed in the tax records does not entitle him to notice under section 39.2(b). The Association’s mere assertion that this individual owns the land is insufficient in and of itself to carry the burden of proving the Commissioners lacked jurisdiction to rule on K/C’s application. Generally, as long as notice is in compliance with the statute and places those potentially interested persons on inquiry, it is sufficient to confer jurisdiction on the county board. (See Tate v. Pollution Control Board (1989), 188 Ill. App. 3d 994, 1019, 544 N.E.2d 1176, 1193.) The PCB committed no error in dismissing the Association’s arguments pertaining to notice.

The Association’s primary contention on appeal is that the proposed facility fails to meet three of the six statutory criteria required before site-suitability approval -can be given. The Association therefore argues the decision of the Commissioners and PCB granting approval is against the manifest weight of the evidence.

In order to protect against arbitrary action on the part of a county board, section 39.2(a) of the Act sets forth six criteria which must be met before approval of new pollution control facilities can be given. (See Ill. Rev. Stat. 1987, ch. 111½, par. 1039.2(a); see also Clutts v. Beasley (1989), 185 Ill. App. 3d 543, 545, 541 N.E.2d 844, 845; Waste Management of Illinois, Inc. v. Pollution Control Board (1987), 160 Ill. App. 3d 434, 443, 513 N.E.2d 592, 597-98.) These six criteria are:

“(i) the facility is necessary to accommodate the waste needs of the area it is intended to serve;
(ii) the facility is so designed, located and proposed to be operated that the public health, safety and welfare will be protected;
(iii) the facility is located so as to minimize incompatibility with the character of the surrounding area and to minimize the effect on the value of the surrounding property;
(iv) the facility is located outside the boundary of the 100 year flood plain on [sic] the site is flood-proofed;
(v) the plan of operations for the facility is designed to minimize the danger to the surrounding area from fire, spills, or other operational accidents;
(vi) the traffic patterns to or from the facility are so designed as to minimize the impact on existing traffic flows; ***.” (Ill. Rev. Stat. 1987, ch. 111½, par. 1039.2(a).)

The Association takes issue with the findings pertaining to criteria (i), (ii) and (v). We first note that in order to prevail here, the Association must demonstrate the PCB’s decision is contrary to the manifest weight of the evidence. (See, e.g., Clutts, 185 Ill. App. 3d at 546, 541 N.E.2d at 846; Waste Management, 160 Ill. App. 3d at 441-42, 513 N.E.2d at 596-97; Willowbrook Motel, Partnership v. Pollution Control Board (1985), 135 Ill. App. 3d 343, 349, 481 N.E.2d 1032, 1036.) That a different conclusion may be reasonable is insufficient; the opposite conclusion must be clearly evident, plain or indisputable. (Tate, 188 Ill. App. 3d at 1022, 544 N.E.2d at 1195; Willowbrook, 135 Ill. App. 3d at 349, 481 N.E.2d at 1036.) Furthermore, as a reviewing court we will not reweigh conflicting testimony or assess the credibility of witnesses. Tate, 188 Ill. App. 3d at 1022, 544 N.E.2d at 1195; Waste Management of Illinois, Inc. v. Pollution Control Board (1988), 175 Ill. App. 3d 1023, 1030-31, 530 N.E.2d 682, 689.

Specifically, with respect to criteria (i), the Association argues K/C failed to establish its landfill is necessary to accommodate the needs of the area intended to be served when the landfill in Lawrence County will accept Wabash County waste and has an 8- to 10-year lifespan which can be expanded to 60 years. Necessary under section 39.2, however, does not mean absolute necessity, but rather expedient, indicating some urgency, or reasonably convenient. (See Clutts, 185 Ill. App. 3d at 546, 541 N.E.2d at 846; Waste Management of Illinois, Inc. v. Pollution Control Board (1984), 123 Ill. App. 3d 1075, 1084, 463 N.E.2d 969, 976; see also Tate, 188 Ill. App. 3d at 1023, 544 N.E.2d at 1195.) In other words, the applicant must show his landfill is reasonably required by the waste needs of the area, taking into consideration its waste production and disposal capabilities. (Waste Management, 175 Ill. App. 3d at 1031, 530 N.E.2d at 689; Waste Management of Illinois, Inc. v. Pollution Control Board (1984), 122 Ill. App. 3d 639, 645, 461 N.E.2d 542, 546.) Furthermore, the applicant does not have to prove every other potential landfill site in the region is unsuitable. E&E Hauling, Inc. v. Pollution Control Board (1983), 116 Ill. App. 3d 586, 609, 451 N.E.2d 555, 573, aff’d (1985), 107 Ill. 2d 33, 481 N.E.2d 664.

Contrary to the Association’s assertions, there is evidence on the record before us which demonstrates a need for a landfill in Wabash County. Wabash County presently has no landfills. The nearest landfill in Lawrence County has a short life-span and several environmental problems. While there is some evidence on the record the lifespan of the Lawrence County landfill could be expanded to 60 years, the owner of the landfill had not even purchased the necessary land to do so by the time of the hearing. Other evidence, on the other hand, revealed poor operation of landfills in neighboring counties and increased costs involved in transporting and disposing of Wabash County waste in these landfills. We simply cannot say the PCB erred in determining there was sufficient evidence in the record to support the Commissioners’ conclusion the proposed landfill is necessary to ensure the county’s waste will be disposed of in an environmentally sound and cost-efficient manner. See Tate, 188 Ill. App. 3d at 1023-24, 544 N.E.2d at 1196.

The Association next points out K/C failed to establish its proposed facility would be operated so as to protect the public health, safety and welfare. According to the Association’s experts, the soil of the proposed site has high permeability with little clay to retain leachate. Additionally, abandoned wells cover the area, and water in general rests in close proximity to the surface of the landfill. These factors in conjunction with an allegedly improperly designed leachate collection system ensure contamination, according to the Association. The comprehensive investigation, of the site suitability of the land conducted in 1986, however, concluded the geology of the site was suitable for a nonhazardous municipal waste sanitary landfill because, in part, of its very thick underlying layer of shale. The investigation also revealed that water wells in the area were relatively deep and would not be affected adversely by the proposed landfill. K/C’s witnesses also testified the design of the proposed landfill complied with or exceeded the landfill standards of the Act.

Obviously the experts disagreed as to the site suitability of the proposed landfill as it relates to public health, safety and welfare. Merely because there is some evidence on the record which, if accepted, would support a contrary conclusion does not mean we will substitute our judgment for that of the Commissioners or the PCB. (Tate, 188 Ill. App. 3d at 1026, 544 N.E.2d at 1197.) The proposed landfill was designed in compliance with the standards set by the Illinois Environmental Protection Agency for nonhazardous waste disposal. We cannot say such compliance does not satisfy the second criterion of the statute. (Clutts, 185 Ill. App. 3d at 546, 541 N.E.2d at 846.) While it is not abundantly clear from the record that damage from migrating leachate is not impossible, it is clear that it is not against the manifest weight of the evidence to find the water supplies are adequately protected. (Town of Ottawa v. Pollution Control Board (1984), 129 Ill. App. 3d 121, 127, 472 N.E.2d 150, 154; see also Clutts, 185 Ill. App. 3d at 546, 541 N.E.2d at 846.) We further note the Association experts did not conduct their own tests or studies of the proposed site, thereby weakening the Association’s position with respect to this issue. (See Town of Ottawa, 129 Ill. App. 3d at 127, 472 N.E.2d at 154.) Again, we find no error in the PCB’s affirming the Commissioners’ approval of K/C’s application.

With respect to the fifth criterion, the Association contends K/C failed to establish its plan of operations is designed to minimize the danger to the surrounding area from operational accidents. The key, here, however is minimize. There is no requirement that the applicant guarantee no accidents will occur, for it is virtually impossible to eliminate all problems. (See Tate, 188 Ill. App. 3d at 1024, 544 N.E.2d at 1196.) K/C’s statement of proposed operations begins with the screening of materials entering the site to ensure that the quantity and quality of the load is known, spillage is contained and any waste likely to cause landfill fires is refused. It ends with the detailing of procedures to be followed in the event of an accident. The evidence is more than sufficient to support the findings of the Commissioners and of the PCB that K/C’s design meets the applicable statutory requirements.

We are mindful of the Association’s concerns, but we cannot say in this instance the decisions of the Commissioners and the PCB are against the manifest weight of the evidence. Our determination, however, by no means concludes the matter. This is but the first step in a long process. The Illinois Environmental Protection Agency still must approve K/C’s application and issue an operating permit. And, once that has occurred, K/C will be subject to regular inspections and ongoing review of its facility in operation, thereby ensuring additional environmental safeguards. (See Tate, 188 Ill. App. 3d at 1026, 544 N.E.2d at 1197.) The existence of strong public opposition alone cannot invalidate the decision of either the Commissioners or the PCB. See Waste Management, 123 Ill. App. 3d at 1081, 463 N.E.2d at 974.

For the aforementioned reasons, we affirm the decision of the Pollution Control Board affirming the approval granted by the Commissioners with respect to K/C’s application for a proposed regional pollution control facility in Wabash County.

Affirmed.

WELCH and CHAPMAN, JJ., concur.


text:
    JUNE CHILDERSON, Plaintiff-Appellant, v. MYRON J. HESS, Defendant-Appellee.
    Fifth District
    No. 5—89—0202
    Opinion filed May 14, 1990.

      June Marie Childerson, of Highland, appellant pro se.

    No brief filed for appellee.
   JUSTICE CHAPMAN

delivered the opinion of the court:

The plaintiff, June Childerson, appeals from the order of child support for her 16-year-old son, Douglas, alleging that the amount is inadequate. Defendant has not filed a brief in this court; however, the issue is such that this court can decide the case without the aid of defendant’s brief. (See First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 133, 345 N.E.2d 493, 495.) Plaintiff alleges numerous issues on appeal; however, we need only discuss whether the court erred in the amount of the support awarded and whether the court erred in holding that social security payments for the benefit of the minor child satisfied defendant’s obligation. Issues concerning payment of maternity expenses and reimbursement of public aid cannot be reviewed due to the inadequacy of the record.

On October 2, 1987, plaintiff filed a “Petition to Determine the Existence of the Father and Child Relationship,” which alleged that defendant was the father of her son, Douglas, then age 15. On September 26, 1988, defendant acknowledged that he was the father of Douglas, and the case proceeded to trial on the issue of child support. It was stipulated that defendant, age 66, earned $12,449 as a union member of the operating engineers and had $6,755 income from social security. Through his union because of his age he was allowed to work up to 250 hours per year. Monday after trial was defendant’s last work day, because he could not work 250 hours at age 67. Defendant then would be completely retired, and his income would be $981 per month: $412 from his union pension and $569 from social security.

Plaintiff receives $368 per month from social security for Douglas, now 16, on the basis that he is defendant’s dependent. Plaintiff receives annually a net income of $11,891. In October 1988, petitioner was to receive a raise of 7% on the gross income.

Plaintiff testified that Douglas, who was born on August 23, 1972, is a junior in high school, making A’s and B’s. Plaintiff listed the following monthly expenses: rent, $400; payment on loan of $1,500 from Southern Illinois University credit union, $93; automobile expenses, $270; medical, life, and hospital insurance, $51; doctor and dental bills, $40; medicine, $22; union dues, $33.50; and food for herself and Douglas, $500. Although Douglas has a slight heart murmur, he can play tennis and basketball with his friends. Douglas plans to go to college, but plaintiff does not earn enough to set money aside for such purpose. Plaintiff’s car will soon have to be replaced due to its age and poor condition. In order to meet everyday living expenses, she obtained a $2,800 loan from Mastercard.

Defendant testified that he had no additional sources of income other than work as an operating engineer, his pension, and social security.

The court calculated defendant’s child support obligations as follows: $981 income from the pension and social security times 20% (see Ill. Rev. Stat. 1987, ch. 40, par. 505) equals $196. The court noted that Douglas was receiving almost twice $196 from social security. The court ruled:

“There is no case law specifically on whether the Court should disregard the Social Security that is being received by the minor in setting child support, but I think the better rule of law, as I’ve discussed with counsel already, would be to give Mr. Hess credit for having these benefits for the young man, and my ruling is going to be that his child support obligation is satisfied by the Social Security payments that are being made.”

The court continued the cause for the parties to determine on whose medical plan it would be the most advantageous to carry Douglas.

On October 24, 1988, the court entered a final order which ordered defendant to provide health and hospital insurance for Douglas.

Plaintiff filed a petition for rehearing which was denied February 28,1989. Plaintiff filed a timely notice of appeal.

On appeal, plaintiff’s main issue is: whether payments to the minor child from defendant’s social security and defendant’s providing health insurance coverage on behalf of the minor satisfy defendant’s support obligations. Plaintiff believes the court should have ordered payment of further support from the income and assets of defendant. She cites no cases in support of her position.

The amount of an award of child support is a matter within the sound discretion of the trial court, and the award will not be disturbed on appeal absent an abuse of discretion. Such an abuse of discretion occurs only where no reasonable person would take the view adopted by the trial court. (In re Marriage of Dwan (1982), 108 Ill. App. 3d 808, 812, 439 N.E.2d 1005, 1008.) In determining child support, the courts, in proceedings under the Illinois Parentage Act of 1984 (Ill. Rev. Stat. 1987, ch. 40, par. 2501 et seq.), are directed to the statutory guidelines set forth in the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1987, ch. 40, par. 1 et seq.) (Ill. Rev. Stat. 1987, ch. 40, par. 2514(a)). Section 505(a) of the Act (Ill. Rev. Stat. 1987, ch. 40, par. 505(a)) states, in relevant part:

“(1) The Court shall determine the minimum amount of support by using the following guidelines:
Number of Children Percent of Supporting Party’s Net Income
1 20%
2 25%
3 32%
4 40%
5 45%
6 or more 50%.”

Strictly following the guidelines, respondent should pay 20% of his net income, or $196 a month, the amount the trial court determined the statute required the court to assess. The statute allows the court to set an amount in excess of the guidelines. Ill. Rev. Stat. 1987, ch. 40, par. 505(a)(2)(e).

In the case at bar, it was not established that defendant has any income other than his social security or pension. Defendant, age 67, is now completely retired. There is no indication that the retirement was an effort to avoid child support payments. On the contrary, defendant testified that he had worked a maximum of 250 hours per year but could no longer do so apparently due to union rules. This court cannot find that the trial court abused its discretion in awarding child support in accordance with the statutory guidelines.

We must also consider whether the court abused its discretion in finding that defendant’s support obligation was satisfied by the social security payments on behalf of Douglas. We again find no abuse of the trial court’s discretion.

Our research has found no Illinois case squarely on point. Courts of our sister States have held that social security disability payments and social security retirement benefit payments for minor children may be credited toward the father’s obligation to pay support. (Cash v. Cash (1962), 234 Ark. 603, 353 S.W.2d 348; Horton v. Horton (1963), 219 Ga. 177, 132 S.E.2d 200; Chase v. Chase (1968), 74 Wash. 2d 253, 444 P. 2d 145; Andler v. Andler (1975), 217 Kan. 538, 538 P.2d 649; Cohen v. Murphy (1975), 368 Mass. 144, 330 N.E.2d 473; In re Marriage of Robinson (Colo. App. 1982), 651 P.2d 454; Binns v. Maddox (Ala. App. 1976), 327 So. 2d 726; Potts v. Potts (Iowa 1976), 240 N.W.2d 680.) The reasons for credit are plain. The United States Congress has seen fit to place the Federal government in the role of insurer in order to afford members of the work force the protection and security of insurance against future disability. The fundamental nature of the social security system is a form of insurance in every sense of that word. Benefits paid out by a governmental insurer, under a policy of insurance for which the insured has paid premiums, are no more gratuitous than benefits paid out by a private insurance company. (Andler, 217 Kan. at 541, 538 P.2d at 653.) Because the law had created a contributory insurance system, the employee, who throughout his working life has contributed part of the premiums in the form of deductions from his wages or salary, has earned the benefits, and they are not a gift. Since the amount of child support required to be paid is determined largely by income, this court can see no reason why, in discharging the obligation to pay child support, social security payments should not be credited, because often social security substitutes for lost income. (See Mooneyham v. Mooneyham (Miss. 1982), 420 So. 2d 1072.) In considering the extent of the setoff to be allowed, a father is entitled to credit only up to the extent of his obligation for monthly payments of child support. The excess is regarded as a gratuity to the child under the order of support. (Andler, 217 Kan. at 543, 538 P.2d at 654; Robinson, 651 P.2d at 455-56.) We agree with this rationale. In the case at bar, the minor child was receiving $368, which exceeded the court-ordered support award, due to defendant’s contributions to the social security system. The excess over $196 is considered a gratuity to the child. We can find no abuse of discretion by the trial court in finding the social security payments satisfied the support obligation.

In her petition to determine the existence of the father and child relationship, she also asked that defendant be made to pay the reasonable expenses of her pregnancy and to reimburse the Illinois Department of Public Aid for any payment previously provided for the benefit of the minor child. Plaintiff presented no evidence on these issues in the trial court. No evidence was presented on the expenses she incurred during delivery and pregnancy. No evidence was presented as to public aid payments, if any, plaintiff received for the benefit of the parties’ son. This issue was not presented in the circuit court, the record is devoid of the necessary factual matters to fully determine the matter, and it has not been adequately briefed in this appeal, thereby rendering consideration of the matter inappropriate. Taylor v. County of St. Clair (1974), 57 Ill. 2d 367, 375, 312 N.E.2d 231, 235.

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

Affirmed.

LEWIS, P.J., and HARRISON, J., concur.