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    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DARNELL ALLEN et al., Defendants-Appellants.
    First District (4th Division)
    No. 1—88—2293
    Opinion filed September 30, 1991.

      Randolph N. Stone, Public Defender, of Chicago (Ira Churgin, Assistant Public Defender, of counsel), for appellants.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, James E. Fitzgerald, and Judith M. Pietrucha, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McMORROW

delivered the opinion of the court:

Following a bench trial, Darnell Allen (Darnell) and his brother, Melvin Allen (Melvin) (both of whom are hereinafter collectively referred to as defendants), were convicted of multiple counts of aggravated criminal sexual assault (Ill. Rev. Stat. 1987, ch. 38, par. 12—14(b)), criminal sexual assault (Ill. Rev. Stat. 1987, ch. 38, par. 12—13(a)), and aggravated criminal sexual abuse (Ill. Rev. Stat. 1987, ch. 38, par. 12—16(c)), and were sentenced to concurrent terms of six years’ imprisonment. On appeal, defendants argue that the evidence was insufficient to prove them guilty beyond a reasonable doubt. Defendants also assert that they were denied the effective assistance of counsel, because their attorney was facing disciplinary proceedings that caused him to render per se ineffective assistance and led him to suffer from a per se conflict of interest. Defendants also contend, and the State concedes, that certain counts of their convictions should be vacated. We affirm in part and reverse in part.

The charges against defendants stemmed from acts they allegedly committed between May 1, 1986, and August 23, 1986, while the defendants babysat the two children of a neighbor, Ms. H. The children were a boy, M.H., who was 10 years old at the time of the offenses, and a girl, L.H., who was six at the time of the offenses.

The children’s mother, Ms. H., testified that the defendants lived in a nearby apartment, that she had known the defendants for the last three years, and that she was friendly with the defendants’ mother. Ms. H. stated that the defendants babysat her children four or five times a month between May 1, 1986, and August 23, 1986. She identified the defendants in court.

Ms. H. testified that on September 22, 1986, as she was bathing L.H., the child suddenly began to scream while she was being washed in her vaginal area, which Ms. H. discovered to be red and yellowish. The child refused to answer her mother’s questions regarding the cause of this condition. Ms. H. asked her son, M.H., what had happened. The boy responded that defendants had been in the apartment and had “freaked” the children. Ms. H. testified that the term “freaked” meant that the defendants had been “having sex with” the children. Ms. H. testified that M.H. informed her that defendant Darnell had sexually assaulted him. Thereafter, L.H. told her mother that both defendants had sexually assaulted her.

On cross-examination, Ms. H. acknowledged that L.H. had been sexually assaulted by the child’s uncle in 1984, and stated that the uncle had had no further contact with L.H. after the incident. Ms. H. also testified that she had caught defendant Darnell sexually assaulting L.H. in December 1985. On this occasion, Ms. H. did not report the incident to the police, but informed the defendants’ mother.

Both children testified against the defendants at trial. L.H. testified that she remembered the defendants were at her home when it was warm outside and school was not in session. She could not recall the precise dates of their visits, although she stated that they occurred in the summer of 1986. L.H. testified in detail to a sexual act that was performed upon her by defendant Melvin during this period of time. In addition, she testified in detail to having seen defendant Darnell sexually assault her brother, M.H.

L.H. also testified that defendant Darnell had assaulted her, but stated that this occurred in December 1985, and that her mother had caught defendant Darnell during this incident. L.H. testified that she was not assaulted by defendant Darnell after December 1985, but was only assaulted by defendant Melvin during the summer of 1986. The girl identified both defendants at trial, and with the use of anatomical dolls, L.H. demonstrated how the defendants had assaulted her. On cross-examination, L.H. testified that she remembered having been sexually assaulted by her uncle on one occasion, and that this incident occurred after she had been assaulted by defendant Darnell.

The son of Ms. H., M.H., also testified at trial that he remembered two incidents with defendants that took place in the summer of 1986. He recounted in detail the acts performed upon him by defendant Melvin on these two occasions, and recalled in detail having seen defendant Darnell perform sexual acts upon his sister, L.H., during these incidents. The boy testified that defendants told him they would hurt him if he ever disclosed what had occurred. M.H. identified defendant Melvin in court and identified defendant Darnell through a photograph.

Dr. Steven Sheldon, a licensed physician and surgeon specializing in pediatrics and child abuse, testified as an expert in pediatrics on behalf of the State. Dr. Sheldon stated that he examined both children on September 24, 1986. After giving the details of these examinations, the physician stated that, in his medical opinion, L.H. and M.H. had recently been sexually assaulted. Dr. Sheldon also testified that, in his opinion, each child had suffered chronic sexual abuse, i.e., repeated sexual assaults over a period of time. However, the physician stated that he could not determine for how long these assaults had continued. Dr. Sheldon also testified on cross-examination that M.H. had told the physician that M.H. had been sexually assaulted by his uncle.

It was stipulated at trial that, at the time of the offenses, defendant Darnell was 17 years of age and that defendant Melvin was 16 years old. Chicago police detective William Facchini, who spoke with the defendants after their arrest in September 1986, testified that defendant Melvin waived his Miranda warnings during police questioning. According to Detective Facchini, defendant Melvin stated that he and his brother “had been freaking the two children off and on for the past two years.” Defendant Melvin also said that he had been caught about two years earlier for the same conduct and had received a beating for it from his mother. The detective stated that he understood the word “freaking” to mean sexual contact.

The defendants presented one witness in their behalf at trial, 15-year-old Janice Dorkin (Janice), who testified that she knew both the children and the defendants. According to Janice, M.H. told her, shortly before the defendants’ trial began, that the defendants had not assaulted M.H. or his sister. Janice testified that M.H. informed her that M.H. had been assaulted by his uncle. In addition, Janice recalled that L.H. had told her that L.H.’s uncle had sexually assaulted L.H.

Based upon this evidence, the trial court found defendants guilty of multiple counts of aggravated criminal sexual assault, criminal sexual assault, and aggravated criminal sexual abuse. The defendants were sentenced to concurrent terms of six years’ imprisonment for these offenses. Their appeal followed.

I

Defendants argue that the State’s evidence was insufficient to prove them guilty beyond a reasonable doubt. Defendants maintain that their convictions should be reversed because the evidence against them was not clear and convincing or substantially corroborated. See, e.g., People v. Cole (1990), 193 Ill. App. 3d 990, 997-1001, 550 N.E.2d 723 (Steigmann, J., specially concurring) (historical review of case law development of standard requiring that proof in sex offense cases be clear and convincing or substantially corroborated).

Recent Hlinois decisions have rejected this heightened standard in appellate review of sexual offense cases. (People v. Wheeler (1991), 216 Ill. App. 3d 609; People v. McCarthy (1991), 213 Ill. App. 3d 873, 879-80, 572 N.E.2d 1219; People v. Stengel (1991), 211 Ill. App. 3d 337, 346, 570 N.E.2d 391; People v. Nicholl (1991), 210 Ill. App. 3d 1001, 1012, 569 N.E.2d 604; People v. Westfield, (1990), 207 Ill. App. 3d 772, 777, 566 N.E.2d 392; People v. Roy (1990), 201 Ill. App. 3d 166, 185, 558 N.E.2d 1208; People v. James (1990), 200 Ill. App. 3d 380, 384, 558 N.E.2d 732.) Instead, Illinois jurisprudence now favors the test applicable in other criminal cases, viz., whether the evidence, viewed in the light most favorable to the State, would support a rational trier of fact’s determination that the essential elements of the crime have been proved beyond a reasonable doubt. (See, e.g., People v. Pintos (1989), 133 Ill. 2d 286, 549 N.E.2d 344.) This court has also adopted the newer, uniform standard of appellate review in sex offense cases. People v. Casiano (1991), 212 Ill. App. 3d 680, 689, 571 N.E.2d 742; People v. Byrd (1990), 206 Ill. App. 3d 996, 1006, 565 N.E.2d 176.

In light of this precedent, we need not and do not consider whether the testimony of the children in the instant cause was clear and convincing or substantially corroborated. Rather, our inquiry is limited to whether the evidence, when considered in the light most favorable to the State, supports the trial court’s determination that defendants were guilty of the sexual assaults of L.H. and M.H. In this regard, we must decide whether the State’s evidence is so unsatisfactory or improbable that there remains a reasonable doubt of the defendants’ guilt. People v. Pintos (1989), 133 Ill. 2d 286, 549 N.E.2d 344; People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267.

Defendants do not dispute the State's proof that both children were subjected to repeated sexual assaults over an indefinite period of time. Defendants also do not question that the acts inflicted upon the children amounted to prohibited sexual assaults. Rather, defendants challenge the sufficiency of the State’s evidence with respect to whether it was the defendants who committed these sexual assaults. Based upon our review of the record, we find the evidence sufficient to sustain defendants’ convictions.

We consider first the evidence against defendant Melvin, who was convicted of the aggravated criminal sexual assaults of L.H. (counts III and IV, charging violations of section 12—4(b)(2)(i) (Ill. Rev. Stat. 1987, ch. 38, par. 12—14(b)(2)(i) (accused under 17 and victim under 9)) and the criminal sexual assault of M.H. (count V, charging violation of section 12—13(a)(2) (Ill. Rev. Stat. 1987, ch. 38, par. 12—13(a)(2)) (accused knew victim unable to understand nature of act or give knowing consent)). Defendant Melvin was 16 at the time of these offenses; L.H. was six years old, and M.H. was 10. Defendant Melvin was also convicted of other offenses which are vacated below.

Regarding defendant Melvin’s conviction for the aggravated criminal sexual assaults of L.H. and the criminal sexual assault of M.H., Chicago police detective Facchini testified that defendant Melvin admitted that he had “freaked” both victims on multiple occasions while babysitting the children during the summer of 1986. M.H. testified that he had been sexually assaulted by defendant Melvin on two occasions in the summer of 1986. L.H. also testified that defendant Melvin performed sexual acts upon her during this period of time. The children’s mother, Ms. H., stated that L.H. told her she had been assaulted by defendant Melvin. Physical examinations of the children established that they had been subjected to recent sexual assaults, and that these assaults had occurred repeatedly over an indefinite period of time. This evidence was sufficient to prove defendant Melvin guilty beyond a reasonable doubt of the aggravated criminal sexual assault of L.H. and the criminal sexual assault of M.H.

Defendant Darnell was convicted for the aggravated criminal sexual assaults of L.H. (counts I and II, charging violations of section 12—14(b)(1) (Ill. Rev. Stat. 1987, ch. 38, par. 12—14(b)(1)) (accused 17 or over and victim under 13)) and the aggravated criminal sexual assault of M.H. (count IX, charging same violation as counts I and II). Defendant Darnell was 17 at the time of these offenses; to restate, L.H. was six years of age and M.H. was 10 years old. Defendant Darnell was also convicted of other offenses which are vacated below.

Regarding the evidence against defendant Darnell for the aggravated criminal sexual assaults of both children, L.H. testified to having seen this defendant perform sexual acts upon her brother, M.H., during the summer of 1986. In addition, L.H. stated that she had also been sexually assaulted by defendant Darnell. Ms. H. also testified that both children told her that they had been sexually assaulted by defendant Darnell during the summer of 1986. Physical examinations of the victims revealed that they had suffered recent sexual assaults and that these assaults had been committed repeatedly over an indefinite period of time. We find this evidence sufficient to prove defendant Darnell guilty beyond a reasonable doubt of the aggravated criminal sexual assault of both victims.

Defendants point to certain inconsistencies in the children’s testimony regarding which of the defendants performed sexual acts upon them and with respect to when these assaults occurred. In addition, defendants note that L.H. admitted that she had been sexually assaulted on one occasion by her uncle, and that M.H. told Dr. Sheldon that he had been sexually assaulted by his uncle. Defendants also observe that the children’s trial testimony is not wholly consistent with what the children told their mother, Ms. H.

“In a bench trial it is for the trial judge to determine the credibility of witnesses, to weigh evidence and draw reasonable inferences therefrom, and to resolve any conflicts in the evidence.” (People v. Slim (1989) , 127 Ill. 2d 302, 307, 537 N.E.2d 317; see also People v. Hall (1990) , 194 Ill. App. 3d 532, 551 N.E.2d 763; People v. Hutson (1987), 153 Ill. App. 3d 1073, 506 N.E.2d 779.) It was the province of the trial court to resolve inconsistencies and conflicts in the State’s evidence with respect to whether it was the defendants who had sexually assaulted the children, with regard to which of the defendants performed sexual acts upon the children, and with respect to whether these assaults occurred in the summer of 1986. (See People v. Lemons (1991), 210 Ill. App. 3d 33, 568 N.E.2d 1380; People v. Roy (1990), 201 Ill. App. 3d 166, 558 N.E.2d 1208; People v. Cregar (1988), 172 Ill. App. 3d 807, 526 N.E.2d 1376; People v. Escobedo (1986), 151 Ill. App. 3d 69, 502 N.E.2d 1263.) Upon review, we cannot say that the trial court’s determination was against the manifest weight of the evidence, or that the alleged conflicts in the evidence rendered the State’s case so improbable or unsatisfactory as to raise a reasonable doubt of the defendants’ guilt.

Defendant Darnell claims that the evidence is insufficient because the trial court may have considered the inculpatory statement made by his brother, defendant Melvin, that implicated defendant Darnell in the sexual assaults of the children. Defendant Darnell observes that his brother did not testify at trial. According to defendant Darnell, if his brother Melvin’s out-of-court “statement was considered against Damell[,] this would be a gross violation of Darnell’s sixth amendment right to confrontation,” citing Bruton v. United States (1968), 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620.

However, there is nothing in the record to indicate that the trial court, sitting as finder of fact, considered defendant Melvin’s statements in determining the sufficiency of the evidence against defendant Darnell. Moreover, in light of the totality of the evidence properly admissible against defendant Darnell, as set forth above, the record supports the trial court’s determination of defendant Darnell’s guilt.

Based upon the foregoing, we find the State’s evidence sufficient to prove defendants’ guilt beyond a reasonable doubt.

II

The defendants argue that they are entitled to a new trial because they were deprived of the effective assistance of counsel. Defendants assert that their defense counsel was per se ineffective, and that he was suffering from a per se conflict of interest, because their attorney represented them while in the midst of disciplinary proceedings instituted against him.

The specific facts pertaining to this issue, according to the record as well as public documents of the Illinois Supreme Court, are as follows. On February 19, 1987, the law license of defendants’ trial counsel, Edward David Triwush (Triwush), was suspended for a six-month period by order of the Illinois Supreme Court. The suspension resulted from Triwush’s failure to file an appellate brief on behalf of a defendant in an unrelated criminal case. See In re Weinberg (1988), 119 Ill. 2d 309, 518 N.E.2d 1037.

On March 24, 1987, during this six-month suspension, Triwush filed his appearance on defendants’ behalf. On December 17, 1987, after the suspension had expired, the Illinois Supreme Court entered a rule to show cause why Triwush should not be held in contempt of court for having practiced law while his license was suspended. Thereafter, on February 3, 1988, Triwush was held in contempt of court by the Illinois Supreme Court and was ordered inter alia to make restitution to clients whom he had represented while his license was suspended.

A few weeks later, on February 25, 1988, the defendants’ bench trial began. Triwush appeared on defendants’ behalf during trial. Testimony was heard on February 25, 1988, as well as on March 4 and March 17, and closing arguments were given on March 17. Also on March 17, Triwush mailed to the Illinois Supreme Court the request that his name be stricken from the master roll of attorneys, pursuant to Illinois Supreme Court Rule 762 (107 Ill. 2d R. 762 (disbarment on consent)). On March 31, 1988, in accordance with his request under Rule 762, Triwush was disbarred from the practice of law by order of the Illinois Supreme Court.

Triwush failed to appear at post-trial hearings scheduled and continued by the court on April 18, April 20, and April 22, 1988. He did not notify the trial court, or the defendants, that he had been disbarred. The trial court was informed of Triwush’s disbarment on May 4, 1988, by an assistant State’s Attorney, and the court appointed an assistant public defender to represent defendants at the post-trial proceeding. The defendants’ appointed counsel drafted and filed a motion for a new trial on defendants’ behalf, and argued this motion at the trial court’s post-trial hearing. Thereafter, once the court denied defendants’ post-trial motion, the appointed counsel represented defendants at their sentencing hearing.

Defendants argue that Triwush’s representation of them during his disciplinary problems amounted to per se ineffective assistance of counsel and caused him to suffer from a per se conflict of interest. We disagree.

The sixth amendment guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right *** to have the Assistance of Counsel for his defence.” (U.S. Const., amend. VI.) This guarantee applies to all critical stages of the prosecution, including pretrial, trial, and sentencing. (United States v. Gouveia (1984), 467 U.S. 180, 81 L. Ed. 2d 146, 104 S. Ct. 2292.) If an accused is deprived of counsel at any of these critical stages, he is entitled to relief without showing that he was prejudiced thereby; the deprivation of counsel is deemed per se reversible error. (United States v. Cronic (1984), 466 U.S. 648, 80 L. Ed. 2d 657, 104 S. Ct. 2039.) Where counsel has been provided, but the attorney’s performance falls below objective standards of reasonable competence, the defendant is entitled to relief if he can prove that the outcome probably would have been different had his attorney provided competent legal representation. Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052.

. It has been held that the sixth amendment right to counsel is not satisfied where the defendant was represented by a person who was never licensed to practice law. In these circumstances, the defendant’s deprivation of a duly licensed attorney is considered per se reversible error. (See United States v. Novak (2d Cir. 1990), 903 F.2d 883; Solina v. United States (2d Cir. 1983), 709 F.2d 160; People v. Felder (1979), 47 N.Y.2d 287, 391 N.E.2d 1274, 418 N.Y.S.2d 295; see also People v. Cox (1957), 12 Ill. 2d 265, 146 N.E.2d 19 (defendant’s representation by one never licensed to practice law deprived defendant of fundamentally fair trial).) “The principle applied in such cases is that one never admitted to practice law and therefore who never acquired the threshold qualification to represent a client in court cannot be allowed to do so, and no matter how spectacular a performance may ensue, it will not constitute ‘effective representation of counsel’ for purposes of the Sixth Amendment.” United States v. Mouzin (9th Cir. 1986), 785 F.2d 682, 697.

However, courts have applied the rule of Strickland when the defendant was represented at trial by an attorney who has been disbarred or was practicing under a suspended license. (See Waterhouse v. Rodriguez (2d Cir. 1988), 848 F.2d 375 (defense counsel disbarred during trial for conduct unrelated to defendant’s trial); United States v. Mouzin (9th Cir. 1986), 785 F.2d 682 (same); Commonwealth v. Thibeault (1990), 28 Mass. App. 787, 556 N.E.2d 403 (defense attorney’s license suspended during trial for conduct unrelated to defendant’s case); State v. Smith (Minn. App. 1991), 464 N.W.2d 730 (same); see also United States v. Williams (7th Cir. 1991), 934 F.2d 847 (defense counsel's license suspended, for neglect of unrelated case, after defendant’s trial ended); People v. Elvart (1989), 189 Ill. App. 3d 524, 545 N.E.2d 331 (defense attorney’s license suspended for nonpayment of State license fees); Beto v. Barfield (5th Cir. 1968), 391 F.2d 275 (same); Reese v. Peters (7th Cir. 1991), 926 F.2d 668 (same); People v. Lieberman (1986), 149 Ill. App. 3d 1052, 501 N.E.2d 797 (attorney’s censure by Attorney Registration and Disciplinary Commission did not result in ineffective assistance of counsel); cf Commonwealth v. Vance (1988), 376 Pa. Super. 493, 546 A.2d 632 (no per se reversible error where defense counsel disbarred, for false statement in application for admission to bar, after trial ended); but see People v. Brigham (1991), 208 Ill. App. 3d 982, 567 N.E.2d 735, appeal allowed (1991), 139 Ill. 2d 599 (per se reversible error where defense counsel’s name stricken from master roll of attorneys, for failure to pay license fee, before defendant’s trial began).) Similarly, it has been held that the defense attorney’s pending disciplinary proceedings during his representation of the defendant do not automatically dictate the conclusion that defendant is entitled to a new trial for ineffective assistance of counsel; rather, the defendant’s claim of ineffective assistance of counsel is to be considered in light of the standard set forth in Strickland. See People v. Long (1990), 208 Ill. App. 3d 627, 567 N.E.2d 514; People v. Perry (1989), 183 Ill. App. 3d 534, 540 N.E.2d 379; People v. Bernardo (1988), 171 Ill. App. 3d 652, 525 N.E.2d 857; People v. Stachelek (1986), 145 Ill. App. 3d 391, 495 N.E.2d 984; see also People v. Williams (1983), 93 Ill. 2d 309, 444 N.E.2d 136 (defendant awarded a new trial under “unique circumstances” that defense counsel faced disbarment proceedings while representing defendant at trial for capital offense); People v. Rainge (1983), 112 Ill. App. 3d 396, 445 N.E.2d 535 (same); cf. People v. Williams (1985), 138 Ill. App. 3d 1041, 487 N.E.2d 13 (no per se ineffective assistance of counsel where defense attorney facing criminal indictment while representing defendant).

It has been noted that “the infliction of discipline upon an attorney previously qualified and in good standing will not and should not transform Ms services into ineffective assistance.” (Mouzin, 785 F.2d at 697.) Thus,

“[njeither suspension nor disbarment invites a per se rule that continued representation in an ongoing trial is constitutionally ineffective. Admission to the bar allows us to assume that counsel has the training, knowledge, and ability to represent a client who has chosen him. Continued licensure normally gives a reliable signal to the public that the licensee is what he purports to be — an attorney qualified to advise and represent a client. But it is an undeniable fact of experience that lawyers unhappily incur sanctions ranging from censure to disbarment; that sometimes that discipline flows from revealed incompetence or untrustworthiness or turpitude such as to deserve no client’s confidence. All we need hold here is that [whether] a lawyer’s services were ineffective [should be considered] on a case [by case], not a per se, basis.” Mouzin, 785 F.2d at 698.

Similar reasoning has influenced jurisprudence concerning the question of whether a defense attorney facing disciplinary proceedings has suffered from a per se conflict of interest that deprived the defendant of the effective assistance of counsel. A per se conflict of interest is said to arise when there are “certain facts about a defense attorney’s status *** [that] engender, by themselves, a disabling conflict.” (Emphasis in original.) (People v. Spreitzer (1988), 123 Ill. 2d 1, 14, 525 N.E.2d 30.) In such cases, “there is no need to show that the attorney’s actual performance was in any way affected by the existence of the conflict. [Citations.]” (Spreitzer, 123 Ill. 2d at 15.) Thus, where a per se conflict of interest exists, the defendant is not required to show prejudice in order for Ms conviction to be reversed. (Spreitzer, 123 Ill. 2d at 15.) The Illinois Supreme Court in Spreitzer stated:

“The justification for treating these conflicts as per se has been that the defense counsel in each case had a tie to a person or entity — either counsel’s client, employer, or own previous commitments — which would benefit from an unfavorable verdict for the defendant. The existence of such a tie created, in each instance, several problems. First, the knowledge that a favorable result for the defendant would inevitably conflict with the interest of his client, employer or self might ‘subliminally’ affect counsel’s performance in ways difficult to detect and demonstrate. [Citations.] A second consideration in per se conflict of interest cases has been the possibility that the conflict will unnecessarily subject the attorney to ‘later charges that his representation was not completely faithful.’ [Citations.] In these situations, we have reversed convictions unless the record reflects that the defendant has been made aware of the conflict and has knowingly waived his right to conflict-free counsel. [Citation.]” 123 Ill. 2d at 16-17.

It has been held that, where the defendant is represented by a person not licensed to practice law, the “imposter attorney” was cloaked with an active conflict of interest necessitating a new trial. (Solina v. United States (2d Cir. 1983), 709 F.2d 160, 164.) “The concern [in these circumstances is] that a layman posing as an attorney might fear that vigorous representation could lead to inquiry into his background and discovery of his lack of credentials ***.” (United States v. Mouzin (9th Cir. 1986), 785 F.2d 682, 699.) Courts have also found a per se conflict of interest where the attorney engaged in acts similar to those for which the defendant was convicted (United States v. Cancilla (2d Cir. 1984), 725 F.2d 867; Government of Virgin Islands v. Zepp (3d Cir. 1984), 748 F.2d 125; see also Commonwealth v. McCloy (1990), 393 Pa. Super. 217, 574 A.2d 86 (no per se conflict or ineffective assistance of counsel where attorney under investigation for unrelated criminal charge while representing defendant)), or when the attorney was under investigation or indictment by the same office that was prosecuting the defendant (United States v. DeFalco (3d Cir. 1979), 644 F.2d 132 (en banc); United States v. McLain (11th Cir. 1987), 823 F.2d 1457).

However, courts have held that there is no per se conflict of interest when the attorney has been suspended or disbarred for conduct unrelated to defendant’s trial. Under these circumstances, “[t]he mere fact that appellant’s attorney may have been distracted by his pending suspension does not rise to the level of a [per se] conflict of interest.” State v. Smith (Minn. App. 1991), 464 N.W.2d 730, 733; see also United States v. Mouzin (9th Cir. 1986), 785 F.2d 682; Commonwealth v. Thibeault (1990), 28 Mass. App. 787, 556 N.E.2d 403.

Based upon this precedent, we conclude that the facts in the instant cause are not sufficient to conclude either that Triwush rendered per se ineffective assistance of counsel, or that he was suffering from a per se conflict of interest that deprived defendants of the effective assistance of counsel.

Because Triwush had been duly licensed to practice law in this State, the instant cause is distinguishable from those cases where per se ineffective assistance was found because the defendant had been represented by someone never properly licensed to practice law. (See Novak, 903 F.2d 883; Solina, 709 F.2d 160; Felder, 47 N.Y.2d 287, 391 N.E.2d 1274, 418 N.Y.S.2d 295.) For this same reason, the facts of the instant cause also do not present a per se conflict caused by the defendant’s representation by an “imposter attorney.” (See Solina, 709 F.2d 160.) As a result, we decline to hold that the facts herein show that defendants’ attorney was per se ineffective, or that counsel suffered from a per se conflict of interest.

Defendants also argue that they were prejudiced by their attorney’s lack of effective representation of them at trial. In this regard, defendants contend that their trial counsel should not have questioned the children’s mother, Ms. H., whether she “ever ha[d] a problem with either of the [defendants] with regard to a sexual assault on your kids before 1986.” Ms. H. responded that she had. Defendants claim that this questioning permitted the State to “bring out the details” of the pre-1986 assault during redirect examination of Ms. H.

We consider this argument under the guidelines stated in Strickland. (See Waterhouse, 848 F.2d 375; Mouzin, 785 F.2d 682; Thibeault, 28 Mass. App. 787, 556 N.E.2d 403; Smith, 464 N.W.2d 730; see also Williams, 934 F.2d 847.) According to this standard, a defendant must show that (1) his trial counsel’s performance was so deficient that it fell below objective standards of reasonable professional competence and (2) this deficient performance so prejudiced defendant that he was denied a fair trial. (Strickland, 466 U.S. at 688-94, 80 L. Ed. 2d at 693-98, 104 S. Ct. at 2064-68; see also People v. Albanese (1984), 104 Ill. 2d 504, 473 N.E.2d 1246.) In determining prejudice, the court must inquire “whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt [concerning] guilt.” Strickland, 466 U.S. at 695, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068; see also People v. Kokoraleis (1989), 132 Ill. 2d 235, 547 N.E.2d 202.

We cannot conclude that the defense attorney’s cross-examination of Ms. H. regarding defendants’ other assaults upon the children so prejudiced the defendants that they should be accorded a new trial. We do not believe that the exclusion of this evidence would have created a reasonable doubt of the defendants’ guilt. The remaining evidence against the defendants was substantial and amply supported the trial court’s findings of defendants’ guilt. Defendant Melvin admitted that he had sexually assaulted both children in the summer of 1986, and the children testified at trial that they had been sexually assaulted by him during this period of time. In addition, L.H. testified that she and her brother had been sexually assaulted by defendant Darnell. Physical examinations of the children in September 1986 revealed that they had been recently subjected to sexual assaults, and that these assaults had been ongoing for an indefinite period of time.

Defendants also assert that they were prejudiced by their attorney’s absence during post-trial and sentencing proceedings. The record reflects that defendants were appointed an assistant public defender to represent them during these proceedings. We find nothing in the record to establish that the trial court’s rulings during post-trial and sentencing proceedings would have been altered by the continued representation of their trial counsel.

On this record, we cannot conclude that defendants’ counsel rendered ineffective assistance pursuant to Strickland. We are also unable to say that defendants’ attorney suffered from disabling, subtle pressures that created a conflict of interest which substantially and adversely affected counsel’s representation of defendants. (See Mouzin, 785 F.2d 682; Smith, 464 N.W.2d 730; Thibeault, 28 Mass. App. 787, 536 N.E.2d 403.) In light of these considerations, we find defendants’ arguments insufficient ground to grant them a new trial.

Ill

Defendants also claim that certain counts of their convictions should be vacated, and the State concedes error on this issue. As a result, counts VI, VII, VIII, X, XI, XII, and XIII of defendants’ convictions are reversed. Defendants’ convictions for the remaining counts (counts I, II, III, IV, V, and IX), as well as the sentences imposed therefor, remain undisturbed.

Pursuant to the State’s request and in accord with People v. Nicholls (1978), 71 Ill. 2d 166, and People v. Agnew (1985), 105 Ill. 2d 275, we hereby assess defendants $75 as costs for this appeal and incorporate it as part of our judgment.

For the reasons stated, the judgment of the circuit court of Cook County is affirmed in part, and reversed in part.

Affirmed in part; reversed in part.

JOHNSON and LINN, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE MANNING

license: Public Domain

text:
    JOSEPH D. HRUBOS et al., Plaintiffs-Appellants, v. CHARLES K. HELFRICK et al., Defendants-Appellees (Roy Pryce et al., Defendants).
    First District (1st Division)
    No. 1—90—0784
    Opinion filed September 30, 1991.
    Law Offices of Michael D. Richman and Harold I. Levine, Ltd., both of Chicago (Michael D. Richman and Harold I. Levine, of counsel), for appellants.
    Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (D. Kendall Griffith, Kevin R. Sido, and Terrence K. McGrath, of counsel), for appellees.
   PRESIDING JUSTICE MANNING

delivered the opinion of the court:

On February 9, 1986, plaintiffs Joseph D. Hrubos and Lisa M. Hrubos entered into a contract to purchase real estate in Barrington Hills from Ray and Myra Pryce. Defendant Charles K. Helfrick, a real estate broker with Re-Max of Barrington, was hired by the Pryces to act as their broker in this transaction. As part of defendant’s compensation, the Pryces agreed to convey a portion of their land to him. Defendant held title to land that adjoined the south property line of the land which the plaintiffs were purchasing. The plaintiffs were not aware of the compensation arrangement between defendant and the Pryces.

Under the real estate contract between plaintiffs and the Pryces, plaintiffs were to receive “not less than 15 acres.” The Pryces provided plaintiffs with a legal description for the property at the closing, but they did not provide a survey. The plaintiffs and their attorney agreed to close without a survey and with the legal description supplied by the Pryces. After the closing, defendant was conveyed the portion of land agreed to by the Pryces in the amount of .0188 acre. Defendant subsequently recorded his deed to this land.

After the closing, the legal description used was sent to a surveyor in Park Ridge to provide a survey. The Park Ridge surveyor determined that the legal description used for the closing did not correspond to his survey. Defendant advised the Pryces’ attorney of this discrepancy, and after consulting him, defendant contacted the Park Ridge surveyor, who provided a survey based on the original legal description used at the closing. That survey indicated that 14.9812 acres were conveyed from the Pryces to the plaintiffs. Defendant supplied the plaintiffs, their bank and the Pryces’ attorney with a copy of the survey prepared by the Park Ridge surveyor.

Subsequently, plaintiffs called defendant regarding the deficiency. Defendant then informed plaintiffs that the Pryces had conveyed the balance of the property to him as part of his commission. Defendant agreed to convey the property back to plaintiffs and asked the Pryces’ attorney to prepare the appropriate documents. The attorney did not prepare the documents. About April 16, 1987, defendant tendered to plaintiffs a warranty deed conveying back the land which he had received from the Pryces.

The plaintiffs retained counsel after receiving the deed from defendant, and on July 9, 1987, counsel for plaintiffs sent a letter to defendant advising him that the deed was unsatisfactory to counsel and that:

“1. The deed must be accompanied by an opinion of title from a recognized title company showing good title in the grantor free and clear of any unpermitted contract exceptions.
2. A correct survey must be submitted, certified after the date of the deed.
3. We also require a written undertaking from from [sic] your client that the acceptance and recording of the deed is without prejudice to the right of my client to any claim at law or in equity arising out of this transaction; and that the acceptanee and recording will not be raised as a defense to any action.”

In response to counsel’s letter, on October 25, 1987, defendant wrote a letter to plaintiffs’ attorney that stated:

“The deed was conveyed in full satisfaction of any complaints on the part of [plaintiff against defendant] and acceptance and recordation of the deed is intended to constitute full payments for any and all complaints [plaintiffs] have against [defendant]. In the event [plaintiffs] are not satisfied, the deed is to be returned and not to be placed of record.”

Plaintiffs did not return the deed, nor did they record it. Instead, on January 5, 1988, they filed a five-count suit in the chancery division against defendant. Count I sought equitable relief in the form of (a) an injunction; and (b) alternatively, to allow plaintiffs to record the deed without prejudice. Count II alleged common law fraud. Count III sought recovery on the loss of bank credit; count TV sought relief based on interference with prospective economic advantage; and count V alleged violation of the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1987, ch. 121½, par. 261 et seq.).

On January 28, 1988, plaintiffs filed a motion for leave to record the deed from defendant “without prejudice.” Plaintiffs’ motion was heard by Judge Siegan on June 1, 1988, and the court granted plaintiffs’ motion, but ruled that the recording of the deed would be without prejudice to the rights of either plaintiffs or defendant.

On September 27, 1988, defendant filed a motion to dismiss and an affidavit in support of his motion. The letter dated October 25, 1987, which he sent to plaintiffs was attached to the motion. Defendant claimed that his conveyance of the warranty deed to plaintiffs and their retention of that deed after receiving the October 25, 1987, letter resulted in an “accord and satisfaction” of all claims in the complaint. Plaintiffs filed an affidavit in response to defendant’s motion to dismiss. Plaintiffs asserted that not all the necessary elements for common law accord and satisfaction were present, and that if an accord and satisfaction were consummated this would not affect the common law and statutory counts of the complaint. Judge Siegan did not rule on the motion, but the motion was heard by Judge Curry.

On November 27, 1989, Judge Curry heard defendant’s motion to dismiss and granted his request. The court stated:

“Is it at all feasible that anyone would give up a piece of property to settle less than the whole claim?
* * *
Is it reasonable he would give it up and say, ‘Sure, go ahead and sue me, anyway. I’ll give you the rest of this property free and clear, but you go ahead and sue me, because *** it just doesn’t happen. Human experience tells you people don’t act like that.
* * *
What he has is an accord and satisfaction, pure and simple. *** The shortage made up, and communication which says; ‘I’m going to tender you this land; here’s a property that goes with your 14,988 [sic] acres. If you don’t want this to settle our claims, our dispute, then send it back to me.’ ”

On December 26, 1989, plaintiffs filed a post-judgment motion for reconsideration. This motion was supported by affidavits from plaintiffs, in addition to the transcript of proceedings from the November 27, 1989, order. A hearing was held and Judge Curry denied that motion. Judge Curry determined that

“[t]he original sale for 14,999 [sic] acres went down in the most informal process imaginable. *** There was no survey. There were no title searches. The contract talked about approximately 15 acres and things like that. When he sought to remedy the infinitesimal amount of shrinkage on the conveyance, all of a sudden we are talking about surveys and title reports and what-have-you for .12 [sic] acres.
* * *
WThen the counter proposal came back, here is the shrinkage under a deed as cavalierly executed as the one you took from the bigger portion. Take it and settle this claim or send it back and have a claim. And for the plaintiff to attempt to have his cake and eat it too is going to be prospects that I don’t think the Court should be encouraging.
* * *
Whether this is accord or a satisfaction or whether it is election of remedies isn’t really material. I don’t care what you call it. It is — he got what he was looking for. And you can’t have a cause of action beside it.”

Plaintiffs now appeal to this court and argue that the trial court erred in: (1) dismissing their complaint based on a finding of an accord and satisfaction; (2) in declining to follow the June 1, 1989, order entered by the court; (3) in dismissing rather than transferring their complaint for an alleged lack of equity; and (4) in relying on the doctrine of election of remedies to uphold the dismissal.

An accord is an agreement or settlement of an existing dispute, controversy or demand which presupposes a disagreement as to the amount due. (Sherman v. Rokacz (1989), 182 Ill. App. 3d 1037, 538 N.E.2d 1259.) It is an affirmative defense, and the defendant has the burden of proving all its elements. The elements necessary are: (1) a bona fide dispute; (2) an unliquidated sum; (3) consideration; (4) a shared or mutual intent to compromise the claim; and (5) execution (or satisfaction) of the accord. Koretz v. All American Life & Casualty Co. (1968), 102 Ill. App. 2d 197, 243 N.E.2d 586.

In this case, the trial court granted defendant’s motion to dismiss based upon defendant’s affirmative defense of accord and satisfaction pursuant to section 2—619 of the Illinois Code of Civil Procedure. (Ill. Rev. Stat. 1987, ch. 110, par. 2—619.) Subsection (a)(9) provides a ground for dismissal based on the fact “[t]hat the claim asserted against defendant is barred by other affirmative matter avoiding the legal effect of or defeating the claim.” Inland Real Estate Corp. v. Lyons Savings & Loan (1987), 153 Ill. App. 3d 848, 506 N.E.2d 652.

Plaintiffs argue that several elements of the accord were not met. They contend that there was no meeting of the minds or intent to compromise as required. They also maintain that when defendant tendered the deed to them he did not indicate that the conveyance of the deed would operate as a complete release or final satisfaction of the claim or cause of action against him. Plaintiffs further assert that their letter dated July 7, 1987, placed defendant on notice that acceptance of the warranty deed from him was conditional, and that he failed to comply with those conditions. Plaintiffs, therefore, maintain that the accord was never satisfied.

In reviewing defendant’s affidavit, it indicates that he communicated the discrepancy in the land conveyed to plaintiffs and that plaintiffs stated that the discrepancy was inconsequential. Defendant offered to convey the fraction of the land to make up the difference and plaintiffs agreed to accept the deed. On April 16, 1987, defendant delivered the warranty deed to plaintiffs.

Subsequent to receiving the deed, plaintiffs retained counsel who sent a letter to defendant dated July 9, 1987, in which counsel expressed that the delivery of the deed was unsatisfactory. That letter further advised defendant that the deed would be accepted only if the conditions set forth in the letter were met. Defendant responded by letter on October 25, 1987. Defendant advised plaintiffs’ attorney that the deed had been tendered in full satisfaction of any complaint that plaintiffs had against defendant or codefendant, and that recordation of the deed was intended to constitute full payment. He also advised plaintiffs that the deed should be returned and not recorded if plaintiffs were not satisfied. Defendant’s affidavit further stated that his original agreement with plaintiffs was that the conveyance of the deed was in full satisfaction of all claims against him or codefendant.

It is clear from the record that a bona fide dispute existed between the parties as to whether conveyance of the deed would constitute full satisfaction of all claims. Further, in consideration of plaintiffs’ release of all claims, defendant agreed to tender the warranty deed to cover the deficiency. Defendant’s October 25, 1989, letter advised plaintiffs that they should return the deed if they were not satisfied. Plaintiffs never returned the deed. Instead, plaintiffs filed a motion for leave to record the deed without prejudice, which motion was granted. However, they never recorded it and held it for several months.

The accord in this case was plaintiffs’ agreement to accept a warranty deed covering the deficient amount of land. The warranty deed was delivered and accepted without being returned. It is the doing of the thing agreed upon that constitutes satisfaction of the accord. Sherman v. Rokacz (1989), 182 Ill. App. 3d 1037, 1045, 538 N.E.2d 1259.

Plaintiffs’ claim that there was no meeting of the minds is not supported by the record. Plaintiffs’ affidavit does not assert that no agreement existed; it simply alleges that the terms of the agreement were not as alleged by defendant. Further, the July 7, 1987, letter from plaintiffs’ attorney to defendant was sent to defendant after the deed had been tendered. Thus, they could have returned the deed to defendant and brought suit. Moreover, in granting defendant’s motion the court held that “clearly and simply, this is an accord and satisfaction.”

We cannot say that the trial court abused its discretion in granting defendant’s motion to dismiss. Having found that the trial court did not abuse its discretion in finding that an accord and satisfaction existed, we need not address the other issues raised in this appeal.

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

Affirmed.

CAMPBELL and O’CONNOR, JJ., concur.


text:
    KNAUS SYSTEMS, INC., Plaintiff-Appellee, v. GENERAL CASUALTY RELIANCE INSURANCE COMPANY, Defendant-Appellant.
    First District (1st Division)
    No. 1—90—0921
    Opinion filed September 30, 1991.
    Pretzel & Stouffer, Chartered, of Chicago (Robert Marc Chemers, Robert J. Franco, Michael A. Clarke, and Donald J. Kindwald, of counsel), for appellant.
    Thomas H. Sterns & Associates, P.C., of Chicago, for appellee.
   PRESIDING JUSTICE MANNING

delivered the opinion of the court:

Plaintiff, Knaus Systems, Incorporated, entered into a contract with Fogarty Van Lines to transport computer equipment from plaintiff’s Tampa, Florida, facility to its Schiller Park, Illinois, facility. While en route, plaintiff’s computer fell from Fogarty’s truck and was damaged. At the time of the incident, Fogarty Van Lines was insured through General Casualty Reliance Insurance Company. Plaintiff filed a claim against General Casualty to recover for the damage to its computer. General Casualty denied that claim on the basis that the insurance policy excluded “breakage.”

On April 15, 1986, plaintiff filed a complaint for declaratory judgment. Defendant filed its answer generally denying that plaintiff was entitled to any recovery under the policy. Defendant raised an affirmative defense pursuant to section 7(b) of the policy that the claim was excluded from coverage. On September 11, 1986, defendant filed its motion for summary judgment.

In its initial motion for summary judgment defendant asserted that the damage to the computer was not caused by a collision. However, the discovery answers that plaintiff received from defendant revealed that while in transit the computer equipment struck both the truck doors and the pavement. Plaintiff’s reply to the summary judgment motion asserted that the policy language was vague as to what constituted a collision, and that a collision included the property colliding with the doors and pavement. Plaintiff also maintained that the damage to its computer was not “breakage.” Plaintiff filed an amended response to defendant’s motion for summary judgment which stated that defendant had previously paid two similar claims to that of plaintiff’s under a similar insurance provision.

On September 29, 1987, the trial court granted summary judgment for defendant on the collision issue only. The court found that the damage to plaintiff’s computer was not due to a “collision” as defined by the insurance policy. Plaintiff then brought to the court’s attention its argument that there was no “breakage” under the policy and that the exclusion did not apply. The court ordered the parties to supply additional authority on the issue of whether breakage had occurred.

The parties did not find case law interpreting the term “breakage” as expressed in the insurance contract. After a hearing on the issue, the court denied defendant’s motion for summary judgment. Plaintiff then brought its summary judgment motion as to liability, which motion was granted. An evidentiary hearing was held and the court entered judgment for plaintiff in the amount of $37,500.

Defendant argues on appeal that the trial court’s interpretation of the term “breakage” as not including the damage to plaintiff’s computer was unreasonable.

Generally, the purpose of an insurance contract is indemnity, and, therefore, the policy should be liberally construed with uncertainty resolved in favor of the insured. (Travelers Insurance Cos. v. P.C. Quote, Inc. (1991), 211 Ill. App. 3d 719, 570 N.E.2d 614.) Where a policy provision is clear and unambiguous, its language must be taken in its plain, ordinary and popular sense. (Hartford Accident & Indemnity Co. v. Case Foundation Co. (1973), 10 Ill. App. 3d 115, 294 N.E.2d 7.) A provision is ambiguous if it is subject to more than one reasonable interpretation. (Marathon Plastics, Inc. v. International Insurance Co. (1987), 161 Ill. App. 3d 452, 514 N.E.2d 479.) All doubts and ambiguities must be resolved in favor of the insured. Northbrook Property & Casualty Insurance Co. v. United States Fidelity & Guaranty Co. (1986), 150 Ill. App. 3d 479, 501 N.E.2d 817.

Defendant argues that the exclusion applies in this case, pointing to the fact that the underlying complaint seeks recovery for the costs of the computer which was damaged by “breakage.” Plaintiff counters that the parties intended that the “All Risks” policy would cover the type of damage to the computer that occurred. Alternatively, plaintiff maintains that the term “breakage” as construed in the policy is ambiguous.

Section 6 of the policy provides:

“Perils Insured
This policy insures against all risks of direct physical loss of or damage to the property covered (including general average and salvage charges on shipments covered while waterborne) except as provided in this Policy.”

Section 7(b) provides that this policy does not insure:

“Loss by leakage, breakage, marring, scratching, chafing, or rubbing unless caused by fire, lightning, cyclone, tornado, flood, collision, derailment or overturning of vehicle, or unless caused by the vessel being on fire, stranded, sunk or in collision.”

Here, the insuring provision of the policy initially provides coverage for all risks of direct physical loss of or damage to the property covered, except that which is specifically excluded elsewhere in the policy. Section 7(b) excludes specific claims and includes “breakage.” Defendant maintains that the exclusion of “breakage” in the above provision prevents plaintiff from recovering in this case.

There is no dispute in the record that plaintiff’s computer was damaged while in the possession of the vehicle controlled by defendant’s insured. In fact, defendant conceded that plaintiff’s computer was damaged. However, defendant contends that the “damage” caused to the computer was “breakage,” and, therefore, excluded. Thus, we must determine whether the trial court properly interpreted the term “breakage.”

There is no definition in the policy that defines “breakage,” nor has this court had occasion to interpret the term “breakage” as it refers to an exclusion from coverage. However, the policy which plaintiff purchased was an “All Risk” policy. It was purchased to insure against risk of loss to plaintiff’s personal property while the property was transferred from Florida to Illinois. Section 6 of the policy clearly stated that the policy insured against risk of loss due to physical damage to the property. To adopt the position asserted by defendant would be to render the “All Risk” policy which plaintiff purchased meaningless.

In liberally construing the insurance contract in favor of the insured, as the trial court was required to do, we cannot say that the trial court erred in granting plaintiff’s motion for summary judgment.

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

Affirmed.

BUCKLEY and O’CONNOR, JJ., concur.


author: JUSTICE BUCKLEY

text:
    LUMINALL PAINTS, INC., Plaintiff-Appellant, v. LA SALLE NATIONAL BANK, as Trustee, Defendant-Appellee.
    First District (1st Division)
    No. 1—90—1516
    Opinion filed September 30, 1991.

      Cherry & Flynn, of Chicago (Myron M. Cherry and Peter Flynn, of counsel), for appellant.
    Gould & Ratner, of Chicago (Robert A. Carson and Karin T. O’Connell, of counsel), for appellee.
   JUSTICE BUCKLEY

delivered the opinion of the court:

Luminall Paints, Inc.’s (Luminall’s) original complaint was filed on August 7, 1986, against the La Salle National Bank (Bank). After various motions and dismissals, Luminall filed its second-amended complaint alleging breach of contract, fraud and breach of fiduciary duty. The trial court dismissed this complaint pursuant to the Illinois Code of Civil Procedure section 2 — 619(5) on the grounds that it was barred by the applicable statutes of limitations. (Ill. Rev. Stat. 1983, ch. 110, par. 2—619(5).) Luminall now appeals that order.

Luminall and Bank entered into a lease on September 1, 1964 (Master Lease), covering the premises at 12555 West Higgins Road in Chicago and a one-story building to be erected on those premises (the premises) by Bank. The Master Lease had a 25-year term with two successive options to extend the term for five years each, beginning when Bank completed the one-story building. On November 25, 1966, Luminall and Bank entered into an amendment to the Master Lease (the Amendment). The Amendment extended the lease term to March 31, 1994, with options for two additional five-year terms. The Amendment also changed the base rent.

On April 1, 1974, Luminall and Bank entered into a letter agreement to terminate the Master Lease and the Amendment (the Termination Agreement). Under the Termination Agreement, Luminall agreed to complete at its expense certain cleanup of the premises in preparation of a new tenant, including removing the equipment, acid etching and refinishing the existing floor slab and removing paint debris from the walls and ceiling of the “paint making area” and removing tanks, piping, motor control center and acid etching and resealing the floor of the “tank room” (the work) prior to May 10, 1974. Luminall also agreed to execute a promissory note for $14,039.20 in favor of Bank and pay certain percentages of the real estate taxes for 1973, 1978 and 1979. In return, Bank agreed that during the period beginning April 1, 1974, through March 31, 1994, Bank or its successors or assigns would pay Luminall an amount equal to 35% of all rentals actually received by Bank from any lessee of the premises in excess of the respective amount of rent which would have been payable under the provisions of the Master Lease.

At approximately the same time the Termination Agreement was executed, Bank leased the premises to Chemtron (New Lease). Luminall was headquartered in Los Angeles County, California, without direct access to the premises. Bank did not readily inform Luminall that its work under the Termination Agreement had been unsatisfactory nor did it inform Luminall of the amounts of rent Chemtron was required to pay under the New Lease. Bank was entitled to retain Luminall’s 35% of the excess rent for some time after the New Lease commenced due to certain expense setoffs.

On August 7, 1986, Luminall filed its original complaint against Bank in chancery court seeking a declaratory judgment and an accounting. That complaint was dismissed on April 25, 1987, for want of prosecution. Upon Luminall’s motion, the order dismissing the complaint for want of prosecution was vacated on May 10, 1988. The trial court transferred the case to the law division.

Bank, on November 10, 1988, moved to strike and dismiss the first-amended complaint and further moved for sanctions. The motions were set for December 28, 1988. On December 27, 1988, Luminall filed its second-amended complaint without leave of court. On December 28, 1988, a briefing schedule was set for Bank’s motions and the hearing was continued until March 23,1989.

On March 23, 1989, the trial court granted Bank’s motion to dismiss the first-amended complaint and gave Luminall leave to file a second-amended complaint by April 20, 1989. Luminall eventually filed another second-amended complaint on May 3, 1989, alleging breach of contract, fraud and breach of fiduciary duty. Again, Bank moved to dismiss the second-amended complaint on the ground that it was barred by the applicable statutes of limitations.

On July 28, 1989, the parties agreed that Luminall would file its response to Bank’s motion to dismiss by August 11, 1989, and that the motion would be heard on September 21, 1989. Luminall failed to file a response and also failed to appear for argument on the motion to dismiss. The trial court ordered that written response to the motion be barred and set the hearing for November 8, 1989. By agreement of the parties, the hearing was continued to February 1, 1990, and then again until April 18, 1990. Luminall failed to appear for the hearing on April 18, 1990, due to an office docketing error. After a hearing on the merits, the trial judge granted Bank’s motion and dismissed the complaint with prejudice. Luminall then filed a motion for reconsideration which was denied. Luminall now appeals the April 18 order dismissing the complaint.

The second-amended complaint contains three counts against Bank for breach of contract, fraud and breach of fiduciary duty in connection with the Termination Agreement. The second-amended complaint alleges that about September 22, 1976, Bank initially informed Luminall that its work to the premises under the Termination Agreement was unsatisfactory. Luminall states that it was unable to inspect the premises to verify this or to ascertain the extent of the problem or to take any corrective action to cure the alleged defective work or to take appropriate legal action against the salvager hired to perform the work. Chemtron, as evidenced in Mr. Kostak’s affidavit, claimed it had expended $15,129 to rectify the unsatisfactory work.

Luminall also alleged that Bank failed to timely notify it of the amounts of the 1978 and 1979 real estate taxes even though Bank paid these taxes and did not request reimbursement from Luminall. Luminall alleged that Bank’s actions indicated that either Luminall’s share of the excess rents was sufficient to cover the tax amounts or that Bank’s actions were a deliberate attempt to deprive Luminall of its rights under the Termination Agreement. Luminall further alleged that it requested Bank in January 1981 to send it all leases for the premises along with an accounting of the rents paid on the premises. Bank, however, stated that it was ignoring Luminall’s request.

Luminall claims Bank did not inform it until August 1982 that Bank was claiming that an aggregate $144,399 was owed to Bank by Luminall which included $15,129 for rectifying the work, $3,436 for maintenance and $61,974 for Luminall’s share of the 1978 and 1979 real estate taxes. Thereafter, Bank agreed to provide Luminall with a full accounting, supported by documents of the amounts Luminall allegedly owed to Bank. Bank continued to refuse to pay Luminall any portion of the excess rents or to provide Luminall copies of any of the leases on the premises.

More specifically, in its breach of contract count Luminall alleges that Bank breached the Termination Agreement in the following manner by failing to (1) provide Luminall with copies of all the leases on the premises, (2) pay Luminall 35% of excess rents received for the premises beginning April 1, 1974, (3) provide Luminall with a proper accounting of rents collected and amounts due to Luminall’s setoffs and expenses, (4) timely notify Luminall of the real estate taxes due on the premises, (5) timely notify Luminall of alleged defects in the work in order to allow Luminall an opportunity to cure, and (6) by knowingly and systematically withholding information from Luminall and preventing Luminall’s performance under the Termination Agreement.

In Luminall’s breach of fiduciary duty count, it alleges that (1) in its capacity as agent for Luminall, Bank deliberately and fraudulently deprived Luminall of 35% of the excess rents on the premises, (2) after Luminall vacated the premises and had no means to determine the condition of the premises, Bank was aware of the condition and knew Luminall was relying upon communications from Bank in connection with its rights under the Termination Agreement, (3) Bank failed to timely notify Luminall of alleged defects in the work, of the real estate taxes for 1978 and 1979 and failed to provide an accounting and leases on the premises, (4) Bank acted with the intent that Luminall rely to its detriment on Bank’s omission, (5) Luminall justifiably relied to its detriment on Bank’s omission, and (6) as a direct consequence, Luminall was prevented from inspecting the premises, verifying the existence and extent of the alleged defects and from attempting to cure the defects and was further damaged.

The fraud count in the second-amended complaint alleges that (1) Bank concealed and omitted the items in the first and second count, (2) Luminall justifiably relied to its detriment, and (3) as a direct and proximate result of Bank’s conduct, Luminall was damaged.

The inquiry on appeal from an order granting a motion to dismiss pursuant to section 2 — 619 of the Illinois Code of Civil Procedure is limited to accepting as true all well-pled facts and reasonable inferences that can be drawn therefrom and to examining whether a cause of action was stated. (Moreno v. Joe Perillo Pontiac, Inc. (1983), 112 Ill. App. 3d 670, 445 N.E.2d 1184.) Conclusions of law, however, are not admitted. Outlaw v. O’Leary (1987), 161 Ill. App. 3d 218, 220, 514 N.E.2d 208, 210.

The Termination Agreement is a written contract. Under the Illinois Code of Civil Procedure section 13—206, Luminall could commence a suit for breach of contract any time “within 10 years next after the cause of action accrued.” (Ill. Rev. Stat. 1987, ch. 110, par. 13—206.) Bank correctly states that a cause of action accrues when facts exist which authorize one party to maintain an action against another. (Beynon Building Corp. v. National Guardian Life Insurance Co. (1983), 118 Ill. App. 3d 754, 762, 455 N.E.2d 246, 251.) Moreover, a cause of action accrues when a suit first may be maintained thereon, and a plaintiff cannot delay running of the statute of limitations by postponing the time of demand upon the proper party. Brehm v. Sargent & Lundy (1978), 66 Ill. App. 3d 472, 475, 384 N.E.2d 55, 57.

Under the Termination Agreement, the excess rent Luminall was to receive from Bank was to be set off by expenses as indicated in Mr. Kostak’s affidavit and the amount due on Luminall’s portion of the 1978 and 1979 real estate taxes which Bank never required Luminall pay; therefore, Luminall was not expecting to receive any money under the excess rent provision until 1981. In Illinois, 1979 taxes became due and payable in 1980; therefore, it would not have been apparent to Luminall that Bank was in violation of the Termination Agreement until 1981. Since Luminall’s original complaint was filed in August 1986, it was filed well within the statutory period.

Luminall relies on the well-established rule that “where an obligation is payable by installments, the statute of limitations runs against each installment from the time it becomes due, that is, from the time when an action might be brought to recover it.” (Brehm, 66 Ill. App. 3d at 474, 384 N.E.2d at 56; Light v. Light (1957), 12 Ill. 2d 502, 147 N.E.2d 34.) Bank’s obligation to pay Luminall excess rents from the premises does not end until March 1994. Bank admitted that it received rents under the subsequent leases at specified times throughout each year. Since rents become due at specified intervals, Bank’s obligation to Luminall is payable by installments. (See Brehm, 66 Ill. App. 3d at 474, 384 N.E.2d at 56.) Thus, under the above rule each time Bank receives excess rent from a lessee of the premises and fails to pay Luminall its share of those rents, Luminall may bring an action for breach of contract. Luminall is barred from recovering for breaches occurring before August 7, 1976, because the statute of limitations has run on those breaches, but Luminall has timely filed its complaint for breaches occurring after August 7, 1976. We find that the trial court erred in dismissing Luminall’s breach of contract on the ground that the statute of limitations had run.

Bank’s argument that Luminall’s cause of action accrued in 1974 because Bank failed to provide Luminall with copies of the leases on the premises in 1974 is incorrect. Luminall did not request copies of the leases -until 1981 because it was unnecessary since Luminall was aware that Bank had leased the premises to Chemtron until at least 1979. Furthermore, Luminall was not expecting to receive any excess rents until after 1981 because it agreed to pay real estate taxes and other costs out of the excess rents. In addition, Bank argues that the contract was repudiated and that to allow Luminall to proceed on its breach of contract claim would force Bank to look back to 1974 for its defenses. In effect, Bank is also arguing laches. Laches does not affect when the statute of limitations accrued, but rather, is an affirmative defense which is a bar to a cause of action, not simply by reason of the passage of time, but in addition, by reason of a substantial detriment to a defendant’s position resulting from the passage of time. (Martin v. Soucie (1982), 109 Ill. App. 3d 731, 736, 441 N.E.2d 131, 134.) This affirmative defense was not pled and, therefore, is not before this court.

In Illinois the statute of limitations for breach of fiduciary duty is five years. (Ill. Rev. Stat. 1987, ch. 110, par. 13—205.) Bank focuses on two specific breaches of its fiduciary duty to Luminall. First, Bank argues that since it failed to notify Luminall of its unsatisfactory work in 1974, it breached its fiduciary duty to Luminall in 1974. Entertaining this logic, Bank asserts that Luminall had until 1979 in which to bring a fiduciary duty cause of action against it. Luminall did not file its original complaint until August 1986; therefore, according to Bank, the statute of limitations has run on the breach of fiduciary duty count.

Second, Bank claims that since Luminall requested an accounting in January 1981 and Bank did not provide Luminall with an accounting as requested, the statute of limitations on its fiduciary duty to Luminall began to run in January 1981. Since Luminall did not file its original complaint until August 7,1986, the statute has run.

Both of Bank’s theories fail. Bank omits significant facts. Bank ignored rather than refused Luminall’s January 1981 request for an accounting. Thereafter, Luminall again requested Bank provide it with an accounting. In August 1982, Bank responded to Luminall’s request by asserting that Luminall owed Bank money. After Luminall complained that the August 1982 accounting was an incomplete and highly informal accounting, Bank agreed to provide Luminall with a full accounting supported by documentation. Finally, in January 1984, Bank began to produce documents to support its accounting. After six months of producing documents and completing the accounting, Bank refused to pay Luminall any part of the excess rents. Under these alleged circumstances, Luminall did not discover Bank’s breach of fiduciary duty until after the accounting was completed and Bank, ultimately, refused to pay Luminall any of the excess rents. Furthermore, if Luminall was not informed of its unsatisfactory work and Bank’s failure to notify Luminall of it until the completed accounting, then Luminall had no reason to bring a breach of fiduciary suit against Bank. Therefore, Luminall filed its cause of action for breach of fiduciary duty well within the five-year statute of limitations, and thus, this count was improperly dismissed.

The trial court also dismissed Luminall’s fraud count. In order to withstand Bank’s motion to dismiss as to the fraud count, the facts pled and the reasonable inferences drawn therefrom must indicate that Luminall was unaware of the fraud and used due diligence in attempting to uncover the fraud. (Suslick v. Rothschild Securities Corp. (7th Cir. 1984), 741 F.2d 1000.) We have already found that under the Termination Agreement, the excess rent Luminall was to receive from Bank was to be set off by expenses such as a portion of the 1978 and 1979 real estate taxes. Since in Illinois, 1979 taxes became due and payable in 1980, Luminall would not have been aware of the fraud until 1981. Luminall did request an accounting in January 1981. Thus, Luminall was using due diligence in attempting to discover why Bank was not paying excess rents to it. After Bank had ignored this request, Luminall submitted another request for an accounting. Finally, in August 1982, Bank responded to Luminall’s request by asserting that Luminall owed Bank money. Thereafter, Luminall complained that the August 1982 accounting was incomplete and Bank agreed to provide Luminall with a full accounting, which was completed in July 1984. Accepting as true all well-pled facts and reasonable inferences which can be drawn therefrom, we find that Luminall used due diligence in attempting to discover the alleged fraud and that Luminall was fully aware of the alleged fraud in July 1984 after the full accounting and Bank’s refusal to pay Luminall any part of the excess rents. Luminall filed its original complaint in August 1986, which was within the five-year statute of limitations. We find that the trial court erred in dismissing Luminall’s fraud count.

Bank argues that Luminall should be precluded from bringing this appeal because it failed to file a written response to the motion to dismiss and failed to appear and give oral argument on the motion. The trial court dismissed the second-amended complaint on the merits pursuant to section 2—619 of the Illinois Code of Civil Procedure, not as a sanction for missing court dates and failing to file a response. (Ill. Rev. Stat. 1987, ch. 110, par. 2—619.) “Failure to file a supporting or answering memorandum shall not be deemed to be a waiver of the motion, or a withdrawal of the opposition thereto, but shall be deemed to be a waiver of the right to file the respective memorandum.” (Cook County Cir. Ct. R. 2.1(d).) Thus, Luminall’s failure to file a response to the motion to dismiss is not a waiver of its opposition to the motion. Due to an office docketing error, Luminall was not represented at the oral arguments on the motion. Since the trial court ruled on the motion solely on the statute of limitations ground, this court can consider the statute of limitations argument. When reviewing a motion to dismiss pursuant to the Code of Civil Procedure section 2— 619, this court accepts as true all well-pled facts and reasonable inferences that can be drawn therefrom. Moreno, 112 Ill. App. 3d 670, 445 N.E.2d 1184.

Bank contends that Luminall has waived all of its arguments by failing to make them in the trial court proceeding. However, as noted above, Bank’s motion is not facially sufficient to overcome the second-amended complaint. Luminall does not need to present new matter previously not in the record or to present additional facts on appeal. Ill. Rev. Stat. 1983, ch. 110, par. 2—619.

For the foregoing reasons, the judgment of the circuit court of Cook County is reversed and remanded for further proceedings.

Reversed and remanded.

MANNING, P.J., and O’CONNOR, J., concur.


text:
    DAVID KALAN, Indiv. and as Ex’r of the Estate of Sherry S. Kalan, Plaintiff-Appellee, v. HAROLD PALAST et al., Defendants-Appellants.
    First District (1st Division)
    No. 1—89—3469
    Opinion filed September 30, 1991.

      McKenna, Storer, Rowe, White & Farrug, of Chicago (James P. DeNardo and Christine L. Olson, of counsel), for appellants.
    Corboy & Demetrio, P.C., of Chicago (Philip H. Corboy, Todd A. Smith, and David A. Novoselsky, of counsel), for appellee.
   PRESIDING JUSTICE MANNING

delivered the opinion of the court:

On July 5, 1985, plaintiff’s wife, while driving her car, was involved in an automobile accident in Northbrook, Illinois, with another car driven by Harold A. Palast and owned by defendant Advertising Survey and Circulation. The car driven by Palast crossed over the center line and collided head-on with the car driven by plaintiff’s wife, subsequently causing her death.

Plaintiff retained Charles Biggam, Jr., of the law firm of Biggam, Cowan, Marquardt and Lunding to represent him in the wrongful death action against Harold Palast and his employer, Advertising Survey and Circulation Corporation. On April 12, 1986, Biggam filed a lawsuit on behalf of the plaintiff. On June 19, 1986, defendants filed their answer, generally denying all allegations. The parties began discovery, and the court entered several orders thereafter.

On September 26, 1986, the court entered an order directing plaintiff to comply with defendants’ discovery request within 28 days from the date of the October 24, 1986, order. Defendants’ counsel sent plaintiff a letter on February 6, 1987, requesting compliance with this order. Defendants’ counsel filed a motion for sanctions and served plaintiff with a copy of that motion. The motion was heard on June 26,1987.

Plaintiff was again ordered to comply with outstanding discovery by July 24, 1987, and ordered to give his deposition testimony by August 27,1987. A copy of that order was mailed to plaintiff.

The plaintiffs law firm had a docketing system to maintain entries of these orders. The firm also had an informal procedure in place for the periodic review of active files.

On September 23, 1987, defendants served plaintiff with their notice of motion to dismiss based on plaintiff’s failure to comply with the court’s orders of September 26, 1986, and June 26, 1987. The motion was heard on December 2, 1987, but no one from plaintiff’s firm appeared at the hearing on the motion. The trial court granted defendants’ motion and entered the dismissal with prejudice and also stated in the order it would entertain a motion to vacate the dismissal if plaintiff complied with all outstanding discovery by January 4, 1988. Plaintiff was served with a copy of this notice, but did not comply with outstanding discovery by January 4,1988.

On May 15, 1989, plaintiff retained the law firm of Corboy and Demetrio to replace attorney Biggam. On June 8, 1989, counsel for Corboy and Demetrio appeared on behalf of plaintiff to present to the court their “Petition for Relief From Order of Dismissal,” pursuant to section 2—1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—1401). The firm also filed a supplemental petition in support of the petition for relief.

The supplemental petition set forth the facts leading to the lawsuit, and further outlined that plaintiff’s first attorney suffered from alcoholism and that this fact affected his ability to prosecute plaintiff’s case. Specifically, in 1984 attorney Biggam received treatment for his alcohol problems through the Lawyers’ Assistance Program. While undergoing treatment he refrained from abusing alcohol for nine months. Two weeks after plaintiff retained Biggam to represent him he resumed drinking.

In March of 1986, Biggam was admitted to Hazelden Alcoholic Treatment Center in Center City, Minnesota, where he underwent treatment for several months. Biggam resumed his practice of law in April 1986. In October 1986 he began weekly sessions with a psychiatrist.

Biggam provided his own affidavit in this action in which he stated in part:

“10. As a direct result of my alcoholism, my mental facilities [sic] became impaired and my mind unsound to the extent that I was irresponsible and mentally incapacitated and unable to realize the status of David G. Kalan’s case, its corresponding discovery schedule, or its progress on the motion call.
11. Due to my impaired mental faculties and unsound mind, I did not complete my legal duties with respect to David G. Kalan’s case, including the duty to comply with discovery requests and appear at corresponding motions.
12. On December 2, 1987, David G. Kalan’s lawsuit was dismissed with prejudice. I failed to appear for the hearing. My failure to appear was due to my impaired faculties and inability to fully appreciate my legal duties with respect to the Kalan lawsuit.
13. I did not appear at this court’s dismissal hearing and, specifically on that day, I was giving a deposition in the ARDC [Attorney Registration and Disciplinary Commission] proceeding brought against me.
* * *
15. David G. Kalan was unaware of my mental incapabilities or the dismissal of his lawsuit until May 11, 1989, when I informed him of both.
16. I, myself, did not become aware of the dismissal of the lawsuit until it was discovered by an associate of the firm on approximately May 4,1989.”

Plaintiff also attached his affidavit and a memorandum of law to the supplemental petition in which he advised the trial court:

“6. On many other occasions, I met with or spoke over the telephone with Charles Biggam concerning my case. I was always made to feel that the case was proceeding as scheduled.
7. On May 11, 1989, Charles Biggam, Jr., informed me for the first time that my lawsuit had been dismissed. He did not tell me when my lawsuit was dismissed.
8. On May 13, 1989, I contacted Corboy and Demetrio, P.C. in an effort to determine my legal remedies.
9. At no time did I realize Mr. Biggam had an alcohol problem or any other problem which prevented him from pursuing my lawsuit.”

Two of the doctors that treated Biggam for his illness also provided diagnosis. Dr. Katie Busch opined:

“It is my opinion, to a reasonable degree of medical certainty, that although Mr. Biggam knew that what he was doing was wrong, but for the effect of his disease, Mr. Biggam would not have become involved in this particular conduct.”

Dr. Sackett, opined that “with a high degree of professional certainty, Mr. Biggam’s misconduct was the direct result of his chronic alcohol abuse.”

Immediately after filing the petition and supporting documents, plaintiff’s new counsel worked to comply with all outstanding discovery, beginning with filing his answers to defendants’ interrogatories on June 21, 1989. Plaintiff also appeared for his deposition hearing scheduled July 7, 1989.

In response to plaintiff’s section 2 — 1401 petition, defendants asserted that the petition should not be granted because Biggam’s condition did not render him incapable of representing plaintiff and that the firm had an affirmative obligation to act with due diligence in following plaintiff’s case.

The court held a hearing on the section 2 — 1401 petition. At that hearing, plaintiff’s attorney admitted that Biggam had practiced law during the period plaintiff’s lawsuit was pending. The attorney asserted that Biggam was incapable of practicing law, and that on the day that the dismissal order was entered, Biggam was giving his deposition in an ARDC proceeding against him.

After hearing the evidence on the section 2 — 1401 motion the court stated:

“I must concede that had I known of his lawyer’s disability at the timefof the entry of the dismissal order] that in all probability I would not have entered the order.
* * *
I am absolutely persuaded that law firms ought to act like firms.
* * *
This is mockery of the Court system. In an effort to see that justice is done to the plaintiff here, I will vacate the order. That will be the order.”

In order to be granted relief under section 2—1401, plaintiff must show a meritorious cause and the exercise of due diligence. (Smith v. Airoom, Inc. (1986), 114 Ill. 2d 209, 499 N.E.2d 1381.) The purpose of section 2—1401 is to enable a party to bring facts to the trial court’s attention which, if known by the court at the time it entered the final order or judgment, would have prevented the entry of the judgment or order. (Gayton v. Levi (1986), 146 Ill. App. 3d 142, 496 N.E.2d 1045.) Petitioner bears the burden of establishing a right to relief by a preponderance of the evidence. (Morski & Associates, Inc. v. R & R Resources, Inc. (1990), 198 Ill. App. 3d 359, 555 N.E.2d 1044.) The determination of whether or not to grant the petition lies in the discretion of the trial court and "will not be disturbed absent an abuse of that discretion. O’Malley v. Powell (1990), 202 Ill. App. 3d 529, 559 N.E.2d 981.

Defendants maintain that plaintiff failed to present a meritorious defense for his failure to follow the litigation and that the record does not support the trial court’s finding that plaintiff suffered from a disability before the cause was dismissed. We disagree.

A section 2—1401 petition must set forth facts showing the existence of a meritorious defense and the exercise of due diligence on the part of plaintiff in presenting both a defense to the lawsuit and the petition to vacate. (Bonanza International, Inc. v. Mar-Fil, Inc. (1984), 128 Ill. App. 3d 714, 717, 471 N.E.2d 221.) Here, plaintiff and his attorney filed affidavits in support of the petition for relief under section 2 — 1401. Plaintiff’s affidavit stated that he employed attorney Biggam to prosecute his lawsuit in July 1985. Between December 1987 and May 1989 he inquired into the status of his case with attorney Biggam, who assured him that the case was on schedule. Plaintiff specifically met with the attorney on March 28, 1988, and was advised that a pretrial hearing would possibly occur on April 28, 1988. No pretrial was held, and plaintiff met with Biggam on November 19, 1988, to ask about the delay. He was advised not to worry because nothing ever happens until the actual trial. On May 11, 1989, Biggam advised him that the case had been dismissed. On May 13, 1989, plaintiff retained alternate counsel. At no time was he aware that Biggam suffered from alcoholism.

Attorney Biggam’s affidavit stated that as a direct result of his alcoholism he was impaired and unable to adequately handle plaintiff’s cause. Specifically, he stated that he was incapable of complying with discovery requests and motions, and did not appear at plaintiff’s dismissal hearing because he was attending an ARDC proceeding brought against him, giving his deposition. Further, he did not become aware that plaintiff’s case had been dismissed until an associate brought it to his attention on May 4, 1989.

The record also includes letters from Drs. Sackett and Busch. Dr. Sackett performed an extensive longitudinal psychiatric evaluation of attorney Biggam from October 1986 through July 1987 and diagnosed Biggam to be suffering from alcoholism. Dr. Sackett opined that with a high degree of professional certainty, Biggam’s misconduct was the direct result of his chronic alcohol abuse. Dr. Busch conducted a psychiatric examination on April 13, 1988. She also concluded that Biggam suffered from alcohol dependence.

After argument on the section 2—1401 motion, the court stated:

“[H]ad I known of his lawyer’s disability at the time [I entered the motion to dismiss] that in all probability I would not have entered the order. There was no way I could have known about it because counsel, [sic] the movant, didn’t know about it.”

Although the court expressed concern that the attorney’s firm should have been more diligent in handling the cause, it concluded that in an effort to see that justice was done the motion would be granted.

In Campbell v. White (1989), 187 Ill. App. 3d 492, 543 N.E.2d 607, appeal denied (1990), 129 Ill. 2d 561, 550 N.E.2d 553, a case decided on a section 2—1301(e) motion, the court held that substantial justice required that a default judgment be vacated. In that case, the plaintiff police officer sought to vacate a default judgment entered pursuant to section 2—1301(e). He had been represented in that cause by an attorney from the Attorney General’s office who handled a Federal matter for the officer. While handling the Federal matter the attorney concurrently represented defendant in a State matter, in violation of the rules of the Attorney General’s office. The attorney failed to file an appearance, an answer or request for extension of time in the State cause.

Defendant’s affidavit stated that he received interrogatories from his attorney regarding the Federal matter, but never had any communication with him regarding the State matter. He made several calls to the attorney’s office, but his calls were never returned. Defendant and the attorney provided affidavits in support of his motion for relief. The attorney’s affidavit stated that the chief reason for his lack of diligence in pursuing the cause was his ongoing problem with alcohol.

Although the court found that the attorney was negligent, and thus imputed the negligence to petitioner, it vacated the judgment based on defendant’s reasonable reliance on the attorney’s representation that he would handle the matter. The court also noted that the petitioner acted immediately upon receiving notice of the default judgment.

While the Campbell case was decided on a section 2 — 1301(e) motion, it presents facts similar to this case. The attorney in his affidavit stated that the chief reason for his neglect of the case was due to his alcohol problem, petitioner had little communication with him after making an effort to do so, and upon learning that a default order had been entered, defendant acted immediately.

Here, Biggam stated in his affidavit that the reason for his failure to follow the case was due to his problem with alcohol. Further, he assured plaintiff that the case was going as scheduled. Plaintiff made all reasonable effort to follow the litigation and upon finding that his cause had been dismissed acted within three days to retain new counsel.

The illness of an attorney is always a persuasive excuse for his failure to comply with a court requirement. (Kaufman v. Kaufman (1974), 22 Ill. App. 3d 1045, 318 N.E.2d 282.) The facts here show that plaintiff’s attorney was suffering from alcoholism during the time that defendant’s case was before the court. Under these conditions, we find that the trial court did not abuse its discretion in vacating the default judgment.

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

Affirmed.

CAMPBELL and O’CONNOR, JJ., concur.