text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PEDRO VARGAS, Defendant-Appellant.
    Fifth District
    No. 5—90—0360
    Opinion filed February 11, 1992.
    Daniel M. Kirwan and Dan W. Evers, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Robert Haida, State’s Attorney, of Belleville (Kenneth R. Boyle, Stephen E. Norris, and Diane L. Campbell, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE CHAPMAN

delivered the opinion of the court:

The defendant, Pedro Vargas, was charged with first-degree murder, attempted first-degree murder, aggravated battery, and armed violence. On February 16, 1990, the defendant was found guilty by a jury of first-degree murder and reckless conduct. He was acquitted on charges of attempted first-degree murder, aggravated battery, and armed violence. On May 8, 1990, the defendant was sentenced to 30 years’ imprisonment for first-degree murder.

The defendant alleges that the trial court erred in refusing to instruct the jury on second-degree murder and in refusing to give an involuntary-intoxication instruction. The defendant also claims his sentence is excessive. We affirm.

A jury trial was held February 13 to 16, 1990, and the following evidence was produced. The defendant entered the VFW post in East St. Louis, St. Clair County, Illinois, on June 30, 1989, sometime after 10 a.m. Already at the post were Curtis Manning, Cecil Bell, Carl C. Moore and the defendant’s girlfriend, Linda Jones, who tended bar there. Manning testified that when the defendant arrived he exchanged words with Cecil Bell and became upset. The defendant then sat down at the bar and began drinking three to four half-pints of Hennessey cognac. The defendant at some point called Linda Jones to the end of the bar, spoke with her, and shot her several times. Manning stated that the defendant then approached him and began shooting at him at which point he ran outside, where he discovered he had been shot. Manning was later taken to the hospital. He testified that he had not seen any arguing, fighting or slapping between the defendant and Linda Jones.

Cecil Bell added that after he heard the shots he looked up to see the defendant holding a gun and the victim sliding down the wall behind the bar. The defendant then approached Manning and said, “[Y]ou go too, black mother fucker,” and shot at him. Defendant then turned toward Bell and said, “I got one for you too, hairy face,” and fired but missed him as Bell fled.

Carl Moore also testified at the trial and said that he heard the defendant say to the victim after he shot her that he had loved her and she had “messed up with him.” He then saw the defendant light a cigarette. Moore described the defendant’s drinking that day as “a little unusual” in that he drank four or five half-pints in a period of around 40 minutes. He also testified that he had not heard any arguing or fighting prior to the shooting of Miss Jones.

Sarah Johnson, who worked as a cook at the VFW post, testified that she observed the defendant shoot Linda Jones three or four times. She stated that the defendant told her, “I am not going to harm you, you haven’t did [sic] anything to me.” She then saw the defendant walk outside the bar and hand over the gun to the police.

Bobbie Hayes also witnessed the shooting, and he testified that after shooting at Manning and Bell the defendant walked out the rear door of the bar, then quickly returned and fired more shots at no one in particular. As the defendant exited the rear entrance of the post a second time, Hayes heard him say, “Yeah, I know, I go to jail.”

Mr. Lee Johnson testified that he had observed the defendant and Cecil Bell arguing prior to the shooting. He described the defendant’s manner as “highly agitated.” After drinking two or three half-pints of Hennessey, the defendant walked out the door. Shortly thereafter the defendant returned and ordered another half-pint. A few minutes later, according to Mr. Johnson, the shooting began. At some later point, the defendant told Johnson that he knew what he was doing and to call the police. Johnson also testified that there had been rumors that Linda Jones had been having a relationship with someone else while the defendant had been in New York.

East St. Louis police detective Clifton Maston testified that when he arrived at the scene the defendant ran up to him saying, “I killed the bitch, I killed the bitch and I turn myself over to you.” Officer Maston then took the gun from the defendant and placed him in the squad car.

At trial the defendant testified, with the help of an interpreter, that he was originally from the Dominican Republic and had resided in the United States since 1972. He first met Jones in 1982 and began dating her in 1987. Six months later they began living together. In the month prior to the shooting, the defendant had gone to New York seeking employment, failed in his efforts, and returned to the area on May 28, 1989. The defendant stated that on June 30, 1989, the day of the shooting, he had been working on the plumbing at Linda Jones’ residence. The piping she had bought was the wrong size, and the defendant went to the post to ask where she had bought it. When he entered, the defendant said the people there were laughing at him. The defendant told Cecil Bell not to bother him, and Bell made a comment which the defendant took to mean that Linda Jones had been seeing other men while he was in New York. The defendant said he questioned Jones about this and began drinking. After a third half-pint he went outside. The defendant testified that he went to Jones’ car and got a revolver to defend himself against Bell. Upon the defendant reentering the bar, Bell continued to talk about Jones going out with other men. The defendant said that he finished another half-pint and began to feel dizzy. After that, he stated, he remembered nothing until the police awoke him the next day. The defendant also claimed the police had beaten him and forced him to sign a piece of paper.

Detective Muckensturm testified that she interviewed the defendant on July 1, 1989. When the defendant first came into her office, he told the officer that he knew what he had done and was ready to pay for it. The defendant made a statement which she typed and he signed. Officer Muckensturm read this statement into the record. The statement told substantially the same story as the defendant’s testimony, except that the defendant stated that he had driven back to Linda Jones’ house to retrieve the gun and a box of shells. The statement also related that at some point the defendant called Jones to the end of the bar and started shooting. The defendant saw the victim fall to the floor, turned and shot at Curtis Manning. He then went outside, gave the gun to the police and was placed under arrest.

Dr. Daniel Cuneo, a psychologist with the Illinois Department of Mental Health, testified on behalf of the defendant. He described the defendant as a person with a long-term history of alcohol abuse. Defendant apparently consumed three to four half-pints of cognac and 10 to 20 beers a day. The doctor believed the defendant had developed a high tolerance for alcohol. Dr. Cuneo had interviewed the defendant three times prior to trial and had been told basically the same story each time. The defendant did, however, tell Cuneo that he thought someone might have put something in his drink and that after finishing his drink he remembered nothing. Dr. Cuneo was of the opinion that the defendant would not qualify for the intoxication defense because he knew right from wrong and had the ability to conform his behavior to the law even though he may have been somewhat impaired by the alcohol.

The defendant contends that the circuit court improperly rejected the defendant’s tendered instructions on second-degree murder and thereby denied the defendant a fair jury determination of his relative culpability.

The instructions, Illinois Pattern Jury Instructions, Criminal, Nos. 7.03A and 7.04A (2d ed. Supp. 1989), tendered by the defendant are based upon section 9 — 2(aXl) of the Criminal Code of 1961, which states:

“A person commits the offense of second degree murder when he commits the offense of first degree murder *** and either of the following mitigating factors are present:
(1) At the time of the killing he is acting under a sudden and intense passion resulting from serious provocation by the individual killed ***.” Ill. Rev. Stat. 1989, ch. 38, par. 9-2(a)(1).

For a defendant to be entitled to an instruction on second-degree murder in a murder case there must be some evidence in the record which, if believed by a jury, would reduce the crime to second-degree murder. (People v. Lockett (1980), 82 Ill. 2d 546, 413 N.E.2d 378.) While the evidence may arguably suggest that the defendant was acting under a sudden and intense passion resulting from serious provocation, there is no indication whatsoever that the victim was the source of the alleged provocation. The record is utterly devoid of even the slightest evidence manifesting any sign of provocation on the part of the individual killed, Linda Jones. Thus the minimum standard of Lockett was not met, and the trial court did not commit error in refusing the instruction for second-degree murder.

The defendant also alleges that the circuit court improperly rejected the defendant’s tendered instruction on involuntary intoxication thereby denying him a fair trial.

The relevant statute concerning involuntary intoxication states:

“A person who is in an intoxicated or drugged condition is criminally responsible for conduct unless such condition either: ***
(b) Is involuntarily produced and deprives him of substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.” Ill. Rev. Stat. 1989, ch. 38, par. 6—3(b).

The only evidence in the record suggesting that the defendant might have been involuntarily intoxicated was an isolated statement he made to Dr. Cuneo during a pretrial interview where he mentioned that someone might have put something in his drink and the defendant’s testimony at trial that after his fourth half-pint of cognac he began to feel dizzy after which he remembered nothing until the next day.

People v. White (1970), 131 Ill. App. 2d 652, 264 N.E.2d 228, is a factually similar case. In White the defendant was away from his glass of beer for a short time, alleged that he later “blacked out” and remembered nothing of the crime, claimed that he requested a blood test for drugs the next day after his arrest, and stated, “I feel I had been drugged.” The court did not find sufficient evidence to justify an involuntary-intoxication instruction.

The defendant proposes that his high tolerance for alcohol would have prevented him from being intoxicated from the alcohol alone, thus indicating he might have been drugged. We find this unconvincing. The record shows that the defendant consumed up to four half-pints of cognac in a period of 30 to 40 minutes as well as at least one beer just before that. The record also shows that the defendant remembered explicit factual details of the event one day later though at trial he claimed not to remember. There were numerous witnesses to the defendant’s excessive consumption of alcohol, his relative composure, his awareness of his actions, and their consequences at the time of the shooting, yet no evidence from anyone other than the defendant that his behavior resulted from anything other than his own passions spurred on by the intake of alcohol.

Since the record does not disclose a particular set of facts which would justify the involuntary-intoxication instruction, there was no error in its refusal. (People v. White, 131 Ill. App. 2d 652, 264 N.E.2d 228.) It should be noted the trial court did give an instruction on voluntary intoxication.

Finally, the defendant claims that his sentence of 30 years’ imprisonment is excessive and should be reduced because of the defendant’s rehabilitative potential, his insignificant criminal record and the fact that this offense resulted from overconsumption of alcohol and other factors unlikely to recur.

The imposition of a sentence is a matter of judicial discretion and, absent an abuse of this discretion, the sentence of the trial court may not be altered upon review. (People v. Perruquet (1977), 68 Ill. 2d 149, 153, 368 N.E.2d 882, 883.) We first note that the defendant did have a prior record, however insignificant, which included a 1974 felony and a 1975 misdemeanor of resisting arrest, which were legitimate aggravating factors in sentencing. The court did take into consideration the influence of alcohol on the defendant as a mitigating factor, as well as the fact that some time had elapsed since the defendant’s previous criminal convictions. The maximum penalty available was 60 years’ imprisonment, the State asked for 35 years’ imprisonment, and the defendant received a sentence of 30 years’ imprisonment. We find no abuse of discretion in sentencing on the part of the trial court under the circumstances of this case.

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

Affirmed.

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


source: Caselaw Access Project

author: JUSTICE RAKOWSKI

license: Public Domain

text:
    LARRY D. DICKERSON, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Illinois Minerals Company, Appellee).
    Fifth District (Industrial Commission Division)
    No. 5—90—0810WC
    Opinion filed December 20, 1991.
    Rehearing denied February 25, 1992.
    Harold B. Gulley, Jr., of Raleigh, for appellant.
    Edward M. Vokoun, of Evans & Dixon, of St. Louis, Missouri, for appel-lee.
   JUSTICE RAKOWSKI

delivered the opinion of the court:

Petitioner-appellant Larry Dickerson brought an occupational disease claim on May 18, 1983, alleging that he had contracted the disease of silicosis arising out of and in the course of his employment with respondent-appellee Illinois Minerals Company (Illinois Minerals) between 1959 and 1971. The arbitrator rendered a decision in favor of petitioner. Upon appeal to the Industrial Commission, a decision was rendered reversing the arbitrator’s determination, holding that petitioner’s claim was barred because petitioner’s disablement did not occur within the requisite statutory time frame. The decision was affirmed by circuit court of Alexander County, and the instant appeal followed.

The pertinent facts are these. In 1959, petitioner began to work with Illinois Minerals as a bagger boy. Illinois Minerals produces silica rock which is ground up into a fine powder and shipped to paint companies. As a bagger boy, petitioner’s duties were to insert paper bags in a machine and activate a button which caused the machine to fill the empty bags. The machine often failed to hold onto the bags. This resulted in the bagger boy often becoming covered with silica dust. The building was windowless and dust was ever-present.

After four or five years as a bagger boy, petitioner began to operate machinery in the mills. Petitioner’s last job with Illinois Minerals was as a “crusher operator.” This job required him to watch material go up a conveyer belt and into a crushing system. Occasionally, he would break large pieces of material with a sledge hammer. In 1968, petitioner left Illinois Minerals and worked as a machine operator. He returned to Illinois Minerals briefly in 1971 and worked as a boiler operator. Next, he worked as a laborer on State highway construction sites. In 1974, petitioner began working as the driver of a dump truck, a job which lasted until 1978 when he was laid off. Finally, in 1978 petitioner commenced work with the W.A. Willis Trucking Company (Willis), where he hauled building materials and agricultural lime. Toward the end of his employment with Willis in 1982, petitioner became unable to handle his duties because he was having breathing problems. As a result, petitioner quit Willis in October of 1982.

On the same day he quit working, petitioner quit his pack-a-day smoking habit and was admitted to St. Francis Medical Center, where an excisional biopsy was performed. The biopsy indicated a granulom-atous inflammation, although no etiological agent was found. Petitioner was referred to Dr. Peter Tuteur, a physician board certified in internal medicine and pulmonary diseases. Tuteur diagnosed petitioner to be suffering from silicosis and concluded that this condition resulted from petitioner’s employment with Illinois Minerals. According to Tuteur, the silicosis resulted in a severe obstructive ventilatory defect and is likely to progress to a more severe state over time.

Dr. Robert Bruce, however, a specialist in pulmonary diseases who examined petitioner at the request of Illinois Minerals, was of the conclusion that the airway obstruction problems were due primarily to bronchitis and emphysema, which were a result of petitioner’s cigarette smoking and a childhood bout with pneumonia. Bruce did testify, however, that between October of 1982 and January of 1984, there was evidence of the progression of silicosis.

Petitioner frames the following issues for review: (1) whether the circuit court and Industrial Commission erred in failing to read section 1(f) of the Workers’ Occupational Diseases Act (Ill. Rev. Stat. 1989, ch. 48, par. 172.36(f)) as subject to the discovery rule; and (2) whether the circuit court’s and Industrial Commission’s interpretation of section 1(f) of the Workers’ Occupational Diseases Act (the Act) violates petitioner’s constitutional rights under applicable due process, equal protection, special legislation and certain remedy provisions of the Federal and Illinois constitutions.

Section 1(f) of the Act provides:

“No compensation shall be payable for or on account of any occupational disease unless disablement, as herein defined, occurs within two years after the last day of the last exposure to the hazards of the disease, except in the cases of occupational disease caused by berylliosis or by the inhalation of silica dust or asbestos dust and, in such cases, within 3 years after the last day of the last exposure to the hazards of such disease and except in the case of occupational disease caused by exposure to radiological materials or equipment, and in such case, within 25 years after the last day of last exposure to the hazards of such disease.” Ill. Rev. Stat. 1989, ch. 48, par. 172.36(f).

Section 6(c) of the Act provided during the relevant time period:

“In any case, other than injury or death caused by exposure to radiological materials or equipment or asbestos, unless application for compensation is filed with the Commission within 3 years after the date of the disablement, where no compensation has been paid, or within 2 years after the date of the last payment of compensation, where any has been paid, whichever shall be later, the right to file such application shall be barred.” Ill. Rev. Stat. 1983, ch. 48, par. 172.41(c).

Petitioner’s argument on the first issue is as follows. The “discovery rule” provides that “when a party knows or reasonably should know both that an injury has occurred and that it was wrongfully caused, the statute [of limitations] begins to run.” (Nolan v. Johns-Manville Asbestos (1981), 85 Ill. 2d 161, 171, 421 N.E.2d 864, 868.) If the discovery rule is not read into section 1(f), then there is no remedy where a worker suffers from an industrial disease which by its nature does not manifest itself within three years of the last injurious exposure. Such a result, petitioner contends, is contrary to the remedial purpose of the Act, in that section 1(f) acts to routinely bar claims involving diseases with long latency periods. The only way to avoid this result is to read the discovery rule into section 1(f) of the Act, so that a claimant has three years from the date of discovery within which to file his claim.

In Goodson v. Industrial Comm’n (1989), 190 Ill. App. 3d 16, 545 N.E.2d 975, the court was faced with a claim for death benefits under the Act by a surviving spouse. The court held that where the petitioner’s husband’s last exposure to asbestos was outside of the allowable period of section 1(f), the claim was barred. In so holding, the court observed:

“The Workers’ Occupational Diseases Act reflects the legislative balance between the rights of employees and employers. [Citation.] The purpose of the limitation provisions in question is to protect the employer against claims too old to be adequately investigated and defended. [Citation.] Accordingly, sections 1(f) and 6(c) should be read together to effectuate the legislative intent. Section 1(f) clearly states that no compensation shall be payable for or on account of any occupational diseases unless the employee becomes disabled within [the applicable time period] of his last exposure to the hazard. That section evinces a legislative intent to reasonably limit an employer’s period of potential liability for both disability benefits payable to an employee and death benefits payable to a survivor.” (190 Ill. App. 3d at 18-19, 545 N.E.2d at 976-77.)

The Goodson court further stated, “[w]e find that the disablement of the decedent within [the applicable time frame] was a condition precedent to the survivor’s recovery. Therefore, the petitioner’s claim was barred by section 1(f) of the Act.” 190 Ill. App. 3d at 20, 545 N.E.2d at 977.

In the case sub judice, it is undisputed that petitioner’s disablement occurred more than three years after the last day of exposure, and as a result, a plain reading of the statute bars plaintiff’s claim. The statute does not contain a discovery rule, and we refuse to read one in because section 1(f) operates as a statute of repose rather than one of limitations. As the court indicated in Kline v. J.I. Case Co. (N.D. Ill. 1981), 520 F. Supp. 564, 566: Illinois courts have not hesitated to apply repose provisions despite the acknowledgement that, as in this case, an individual with a long latency disease may be barred from recovery. (See Olson v. Owens-Corning Fiberglass Corp. (1990), 198 Ill. App. 3d 1039, 1043, 556 N.E.2d 716, 719 (and cases cited therein).) Accordingly, we hold that section 1(f) is not to be read as subject to the discovery rule, and the commission correctly interpreted the statute as barring petitioner’s claim.

“Statutes of limitations extinguish, after a period of time, the right to prosecute an accrued cause of action. [Statutes of repose], by way of contrast, limit[ ] *** potential liability by limiting the time during which a cause of action can arise. As plaintiffs contend, the statute serves to bar causes of action before they accrue.”

Petitioner next argues that the Industrial Commission’s interpretation of the Act renders the Act unconstitutional. Specifically, petitioner relies upon due process, equal protection, special legislation and certain remedy guarantees of both the Federal and Illinois constitutions in advancing his arguments. Petitioner reminds us that courts are “ ‘obliged to construe statutes both to avoid absurd or unjust consequences and to affirm their constitutionality’ ” (quoting People v. Williams (1987), 119 Ill. 2d 24, 28, 518 N.E.2d 136, 138), and invites us to join the conclusion of a foreign court that according to the present state of medical knowledge, it is clear that silicosis often manifests itself well after the period of years provided in section 1(f). (See Caruso v. Aluminum Co. of America (1984), 15 Ohio St. 3d 306, 473 N.E.2d 818.) Petitioner further asks us to conclude that the repose period will routinely, as opposed to occasionally, bar the claim of a silicosis-suffering claimant, and as a result the statute is unreasonable. Additionally, petitioner argues that there is no justification for a different repose period for radiological- or asbestos-related diseases as opposed to silicosis.

The problem with petitioner’s invocations is that they are not supported by the record of this case. While testimony clearly exists in the record that petitioner suffered from silicosis as a result of his exposure to silica dust at Illinois Minerals, petitioner points to no testimony or other evidence to support his medical conclusions. Petitioner’s brief contains only one reference to a medical authority, to wit: in silicosis cases “[ujsually 20 to 30 [years] of exposure are necessary before the disease becomes apparent.” (Merck Manual 670 (14th ed. 1982).) However, the constitutional challenges petitioner makes in this case have to do with the period of time provided in which to bring a claim between the last date of exposure and manifestation of the disease, not the exposure period usually present before the disease manifests itself in the first instance. Based on the record before us and the scant authority petitioner brings to our attention, we are unable to say that this is a distinction without a difference.

The legislature has provided claimants who suffer silicosis a longer period within which to file a claim than the typical claimant. While colorable constitutional challenges might well be present if petitioner’s arguments were supported by evidence in the record and authoritative medical literature, the conclusions petitioner wishes us to draw are not so evident that judicial notice may be taken of them, and we therefore refuse to speculate as to the statute’s alleged unconstitutionality.

For the foregoing reasons, we affirm the judgment of the circuit court of Alexander County.

Affirmed.

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


author: JUSTICE WELCH

text:
    LANDMARK TRUST COMPANY, Ex’r under the Last Will and Testament of Earl T. Aitken, Deceased, Plaintiff-Appellee, v. LOUIS F. AITKEN, Defendant-Appellant (Beverly Ann Ederle et al., Defendants).
    Fifth District
    No. 5—90—0797
    Opinion filed January 30, 1992.

      Kathleen R. Sherby and Dan M. Lesicko, both of Bryan, Cave, McPhee-ters & McRoberts, of St. Louis, Missouri, for appellant.
    Charles A. Redd, of Armstrong, Teasdale, Schlafly & Davis, of St. Louis, Missouri, for appellee.
   JUSTICE WELCH

delivered the opinion of the court:

Defendant, Louis E Aitken, M.D. (hereinafter Dr. Aitken), appeals from the October 30, 1990, order of the circuit court of St. Clair County granting summary judgment in favor of plaintiff, Landmark Trust Company, executor under the last will and testament of Earl T. Aitken, deceased (hereinafter the Executor), and denying Dr. Aitken’s cross-motion for summary judgment.

The major issue we shall address in this case is whether the circuit court of St. Clair County erred in determining that section 24 — 3 of the Probate Act of 1975 (hereinafter Probate Act) (Ill. Rev. Stat. 1989, ch. 110½, par. 24—3) should not cause the abatement of general legacies under the testator’s will in order to pay the death taxes which the residuary estate was not large enough to cover. This section of the Probate Act, which deals with the order of distribution, abatement and contribution on settlement of an estate, provides in pertinent part as follows:

“(b) Unless otherwise provided by the will, if the estate of a testator is insufficient to pay all legacies under his will, specific legacies shall be satisfied pro rata before general legacies, and general legacies shall be satisfied pro rata, without any priority in either case as between real and personal estate.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 110½, par. 24—3(b).)

The Executor had determined that article second of decedent’s will provided against abatement of any preresiduary (specific or general) legacies. Article second of the last will and testament of Earl T. Aitken, deceased, provided as follows:

“I direct my executor, hereinafter named, to pay from the residue of my estate all my debts, funeral expenses, administration expenses and all estate, inheritance, succession and transfer taxes which may become due by reason of my death. Interest and penalties shall be paid in the same manner as any tax. My executor shall not seek contribution or reimbursement from any person for payment of any part of such taxes." (Emphasis added.)

The Executor determined that the italicized language exhibited an intent by the testator that if there was a shortfall in the amount of the residuary estate after payment of the above expenses, the deficit should be apportioned among all beneficiaries of probate property under the will and all such legatees should contribute toward payment of the deficit. Accordingly, the Executor prepared a residuary-deficit-allocation chart by which the Executor determined that Dr. Aitken’s share of the deficit, based upon the ratable portion of Federal estate tax liability and Kentucky inheritance tax generated by the decedent’s interest in certain horses specifically bequeathed to Dr. Aitken, was $99,814.04.

After Dr. Aitken’s refusal to pay any portion of the residuary estate deficit allocated to his specific bequests, the Executor filed on June 22, 1989, its petition to construe will and for declaratory judgment. The Executor joined as defendants all named beneficiaries under the will. Defendant Beverly Ann Ederle, the largest general legatee under decedent’s will, admitted all of the allegations in the Executor’s petition and concurred in the Executor’s opinion that the taxes had been properly apportioned as per the residuary-deficit-allocation chart. Consistent with his refusal to pay the amount determined by the Executor to be owed pursuant to the residuary-deficit-allocation chart, Dr. Aitken denied the relevant paragraphs of the petition and asked the court to construe the will such that section 24 — 3(b) of the Probate Act would control payment of the residuary deficit. No defendant, other than Dr. Aitken and Beverly Ann Ederle, filed a responsive pleading to the Executor’s petition.

Cross-motions for summary judgment were filed by Dr. Aitken and the Executor, and these motions were considered by the court based upon a stipulation of facts filed June 14, 1990, and the aforesaid parties’ agreement that the matter to be determined was one of law, the construction of decedent’s will. (See In re Estate of Bresler (1987), 159 Ill. App. 3d 535, 510 N.E.2d 1057.) The court noted in its October 30, 1990, order that section 2 — 1005 of the Code of Civil Procedure provides that summary judgment “shall be rendered without delay if *** there is no genuine issue as to any material fact and *** the moving party is entitled to a judgment as a matter of law.” (Ill. Rev. Stat. 1989, ch. 110, par. 2—1005(c).) We note at this juncture that where a question of law is raised by an appeal, this court may determine the issue independently of the trial court’s judgment. (Arneson v. Board of Trustees (1991), 210 Ill. App. 3d 844, 850, 569 N.E.2d 252, 256.) Further, when the evidence before the court is documentary in nature, the appellate court is not bound by the trial court’s findings and may make an independent decision on the facts. (In re Estate of Hook (1991), 207 Ill. App. 3d 1015, 1028, 566 N.E.2d 759, 767.) Based on this standard of review, we shall set forth the relevant portions of the record now before us.

The parties’ stipulation of facts indicates that Earl T. Aitken died on March 13, 1988, domiciled in St. Clair County, Illinois. Decedent’s will dated May 7, 1987, and a first codicil thereto dated February 2, 1988, were collectively admitted to probate in the circuit court of St. Clair County, and plaintiff was appointed executor pursuant to article sixteenth of the will, on April 11, 1988. In addition to article second recited above, article seventeenth of the will provided that the Executor had the power and discretion “[t]o make such election affecting taxes as the executor deems advisable, without regard to the relative interests of the beneficiaries and with or without making any compensating adjustments therefor.”

Articles third through thirteenth of the will provided for certain specific bequests and pecuniary general bequests. Of the general bequests which totalled $535,000, article thirteenth made the largest general bequest, in the amount of $500,000, to Beverly Ann Ederle, decedent’s stepdaughter. Specific bequests of decedent’s automobiles and household and personal effects were also made to Beverly Ann Ederle, in article third of the will. Articles fifth and seventh made specific bequests of the decedent’s interest in all horses owned in common with Nancy Vanier and Michael Jakovac at the time of his death to, respectively, Vanier and Jakovac.

Article fourth of decedent’s will bequeathed to his brother, Dr. Aitken, all of the decedent’s interest in all horses owned by the decedent and Dr. Aitken in common at the time of the decedent’s death and all of the decedent’s interest in all horses in which he and Dr. Aitken owned an interest in common at the time of the decedent’s death, “including my fifty percent (50%) share of the interest he and I own in common in a certain stallion named DANZIG, together with all income we are to receive from the interest we own in said stallion named DANZIG.” Article twelfth of the will, as amended by the codicil thereto, declared the intention of decedent that on his death all of his interest in any horse in which he owned an interest in common with another person, except a certain horse named Niqua, shall pass to and be the property of that other person and instructed the executor of his last will and testament to make no claim to such interest. Said article further provided that decedent’s interest in Niqua, which was owned in common with Michael Jakovac, was bequeathed to Carl Ederle, husband of Beverly Ann Ederle.

Article fourteenth of the will, as amended by codicil, named several individuals and two charities as residuary legatees. Dr. Aitken and Beverly Ann Ederle were each to receive 221/a% of the residuary estate, and the remaining individuals and charities were each to receive 5% of the residuary estate.

As reported on decedent’s Federal estate tax return, probate assets valued at $1,464,934.33, joint property valued at $183,595.94, and insurance proceeds valued at $963.78 were included in decedent’s gross estate. In addition to the Federal estate tax return, the executor filed on December 13, 1988, an Illinois estate tax return and a Kentucky nonresident inheritance and estate tax return. The Executor made tax payments of $316,991.91, $48,538.31, and $44,202.47 to the appropriate taxing authorities, although the Executor anticipated a refund in the Federal and State estate taxes paid of between $35,000 to $45,000. The residuary probate estate was insufficient to pay all death taxes and debts and administrative expenses, with a projected resulting shortage of $220,911.25 after exhaustion of the residue, subject to the anticipated refund from the amended estate tax returns.

The circuit court recited the following conclusions of law in its order granting summary judgment to the Executor:

(1) That summary judgment is appropriate in this case.

(2) That although Illinois follows the “burden on the residue” rule with respect to allocation of estate taxes arising by reason of a decedent’s death, because there was a residuary estate deficit there was no residuary estate out of which to pay estate taxes and so the “burden on the residue” rule has no application in this case.

(3) That if section 24 — 3(b) of the Probate Act of 1975 were applicable in the present case, the specific legatees under decedent’s will would not be required to contribute any funds toward satisfaction of the residuary estate deficit because complete abatement of all general legacies under the decedent’s will would be more than sufficient to cover the residuary estate deficit.

(4) That the essential question in this case is whether section 24 — 3(b) applies; in other words, does the will provide otherwise within the meaning of section 24 — 3(b)?

(5) That the first sentence of article second of the will is irrelevant to a resolution of the legal issue at hand because it does not address expressly or by implication how to allocate the remaining burden of debts, expenses and death taxes after the residuary estate has been exhausted.

(6) That the first sentence of article second does not impliedly invoke Illinois’ law of abatement (section 24 — 3(b)) as argued by Dr. Aitken.

(7) That the second sentence of article second has no relevance to this case because no interest or penalties have been or will be paid.

(8) That the only sentence of article second that has any possible applicability to this case is the third sentence, and by this sentence, the decedent indicates his intention that all persons (other than residuary legatees, whose legacies are directed under the first sentence of article second to be the source from which death taxes are to be paid), without distinction among specific legatees, general legatees, recipients of nonprobate property by survivorship and beneficiaries of life insurance policies, be treated conceptually in the same manner and considered in the same category in allocating the burden of death taxes. The third sentence of article second “provides otherwise” within the meaning of section 24 — 3(b), and therefore the rules of abatement as set forth in section 24 — 3(b) are inapplicable to this case.

(9) That there are no reported Illinois cases that address the meaning of the type of language contained in the third sentence of article second in a situation in which the residue is exhausted and the beneficiaries and distributees of probate and nonprobate property disagree as to how the amount of death taxes not able to be paid from the residuary estate should be apportioned.

(10) That the following cases, cited by plaintiff in its memorandum in support of summary judgment, Mosher v. United States (D. Conn. 1975), 390 F. Supp. 1041, and In re Estate of White (1948), 63 Pa. D. & C. 408, though not technically identical to the present case, are quite instructive and contain elements that are present in the instant case:

(a) The residuary estate is insufficient to pay all death taxes in full.

(b) The will contains preresiduary specific and general legacies.

(c) In the absence of a contrary testamentary provision, State law mandates that certain preresiduary legacies abate before others.

(d) The will contains a tax clause that directs payment of all death taxes and transfer taxes from the residuary estate and contains language ostensibly absolving all recipients of property as a result of the decedent’s death from any obligation to defray death taxes. Also, in Mosher the will specified that death taxes were not to be charged against, or be subject to reimbursement by, any beneficiary, language strikingly similar to that in the present case.

(11) That Dr. Aitken’s attempts to distinguish Mosher and White, in his reply to plaintiff’s motion for summary judgment, are not persuasive. While in Mosher it is true that a recited fact was that all specific legacies were paid in full, the issue of abatement or nonabatement of specific legacies was not litigated in Mosher. Contrary to Dr. Aitken’s position, the White case does not appear to have been resolved on the basis of the Pennsylvania Apportionment Act, and this case discussed and rejected the rule of abatement.

(12) That inheritance tax is a tax imposed not upon decedent’s estate but upon the right or privilege of receiving property from such estate and as such is a charge against the share or interest with respect to which such tax is assessed. In the absence of a contrary provision in the will, the ultimate burden of an inheritance tax falls upon the recipient of the property giving rise to such tax even though the executor is personally liable to pay the tax in the first instance.

(13) That the plaintiff acted fairly, reasonably and in conformity with Illinois law by considering the residuary estate deficit as consisting, on a pro rata basis, of Federal estate tax, Illinois estate tax and Kentucky inheritance tax.

(14) That the portion of the residuary estate deficit allocable to payment of Kentucky inheritance tax should be apportioned, pro rata, between the recipients of property as to which Kentucky inheritance tax was assessed.

The court ruled that the Executor’s deficit-allocation chart attached to its petition to construe will and for declaratory judgment set out a fair, equitable and reasonable method of apportioning the residuary estate deficit and was in conformity with Illinois law. The court ordered that the rationale and methodology employed in the deficit-allocation chart be used in determining each of the listed legatees’ shares of the residuary estate deficit, after the Federal and State estate and inheritance tax liability was finally determined. The court ordered that the Executor’s and Dr. Aitken’s attorney fees and costs incurred in connection with this action be paid out of the principal of decedent’s estate as an expense of administration.

While we agree with the circuit court that the essential question in this case is whether section 24 — 3(b) of the Probate Act applies, we must disagree with the conclusion of the court that it does not, based on our review of Illinois case law. The operative question is whether article second “provided otherwise” than for abatement of general legacies when there is a shortfall in the residuary estate, by stating, “[m]y executor shall not seek contribution or reimbursement from any person for payment of any part of such taxes.” The will must be considered in its entirety to determine the testator’s intent and, to the extent possible, that construction should be adopted which will give effect to all language employed; no technical rule of construction, however, will be permitted to interfere with ascertaining the testator’s real intention. (Griffin v. Gould (1979), 72 Ill. App. 3d 747, 752-53, 391 N.E.2d 124, 128.) The circuit court relied on decisions from other jurisdictions in reaching its interpretation of the testator’s intent in article second of the will that equitable apportionment be the desired method of handling the shortfall in the residuary estate. However, Illinois case law is controlling as to equitable apportionment issues in Illinois estates. In re Estate of Fry (1989), 188 Ill. App. 3d 336, 339, 544 N.E.2d 109, 111.

“Equitable apportionment” is the term which is used to describe the process of distributing the burden of certain estate expenses among those beneficiaries in the same proportion as they respectively cause such expenses to be incurred. (Horwitz v. Ritholz (1984), 125 Ill. App. 3d 193, 198, 465 N.E.2d 642, 645.) The United States Supreme Court has held that States are free, if they so choose, to apportion the burden of estate taxes. (Riggs v. Del Drago (1942), 317 U.S. 95, 97-98, 87 L. Ed. 106, 110-11, 63 S. Ct. 109, 110.) While many jurisdictions have specific statutes providing for equitable apportionment of estate taxes among beneficiaries of the taxable estate, except where provided for otherwise by the will (Annot., 37 A.L.R.2d 14 (1954)), Illinois applies this doctrine only by case law. The Illinois Supreme Court has permitted apportionment of Federal estate taxes among recipients of probate and nonprobate assets where a decedent dies intestate, leaving property subject to probate as well as property held in joint tenancy and outside of probate (Roe v. Estate of Farrell (1978), 69 Ill. 2d 525, 372 N.E.2d 662), and also where the decedent did not provide any direction as to the payment of Federal estate taxes in his will (In re Estate of Gowling (1980), 82 Ill. 2d 15, 411 N.E.2d 266). In other words, Illinois recognizes contribution from surviving joint tenants and life insurance beneficiaries towards payment of the Federal estate tax upon the jointly owned property or life insurance proceeds which an executor or administrator must include in the decedent’s gross estate for Federal estate tax purposes, along with contribution from the legatees or devisees for the taxes generated by the decedent’s probate estate assets. However, equitable apportionment of Federal estate tax liability among recipients of probate and nonprobate assets is not recognized under Illinois law when the will directs, as in the instant case, that the estate will be responsible for payment of “all estate, inheritance, succession and transfer taxes,” and that “my executors shall not be entitled to reimbursement therefor from any persons against whom such taxes may be levied or assessed, or from any person who may have received any property so taxed.” (See Horwitz, 125 Ill. App. 3d at 201-02, 465 N.E.2d at 647.) Such language is construed to be a clear intention to the contrary of equitable apportionment. Additionally, a direction in a will that taxes were to be paid from the residuary estate without reimbursement from any person has been held to be a clear expression of the testator’s intent that the equitable apportionment doctrine should not apply. In re Estate of Fry (1989), 188 Ill. App. 3d 336, 339-40, 544 N.E.2d 109, 111.

In the instant case the executor sought to apply the doctrine of equitable apportionment beyond the application heretofore recognized by the Illinois Supreme Court, by asking the court to construe the language of article second, “[m]y executor shall not seek contribution from any person for payment of any part of such taxes,” to be a direction that equitable apportionment be utilized among beneficiaries of the preresiduary probate estate where the residuary estate is insufficient to satisfy payment of the death taxes directed to be paid by the will. We do not, however, construe the language in article second as a direction or an intent by the testator that equitable apportionment be utilized for payment of the deficit, based on our review of Illinois case law and a reading of the will in its entirety. We further decline to extend the doctrine of equitable apportionment beyond the parameters set by the supreme court in Gowling and Roe, absent a clear indication in the will that the testator intended for equitable apportionment to be utilized.

A related issue of whether equitable apportionment of Federal estate tax liability among every beneficiary, preresiduary and residuary, was appropriate under a will where only probate assets were involved was decided by this court in In re Estate of Maddux (1981), 93 Ill. App. 3d 435, 417 N.E.2d 266. In Maddux we determined that the current rule of apportionment, as determined by the supreme court in Gowling and Roe, is that both probate and nonprobate assets should be subject to Federal estate taxes because both types of assets generate estate tax liability, in the absence of a direction otherwise from the testator. (Maddux, 93 Ill. App. 3d at 436, 417 N.E.2d at 268.) However, we noted that in Gowling the supreme court implicitly approved the common law burden-on-the-residue rule, reiterated by the appellate court’s holding therein that the Federal estate tax liability “shall be borne to the extent possible by the residue of those assets, and upon extinguishment of that sum shall be paid out of the remaining probate assets according to the rules on abatement” (In re Estate of Gowling (1979), 77 Ill. App. 3d 548, 554, 396 N.E.2d 82, 86). (Maddux, 93 Ill. App. 3d at 437, 417 N.E.2d at 268-69.) We therefore reasoned that where the will is silent as to payment of taxes, as between the various probate assets, Illinois follows the burden-on-the-residue rule, but to the extent nonprobate assets exist which generate estate tax liability, contribution may be sought on a proportionate basis. (Maddux, 93 Ill. App. 3d at 436-47, 417 N.E.2d at 268-69.) Accordingly, we declined to extend the equitable apportionment doctrine among recipients of assets from an estate made up of only probate property where there was no statute so directing or provision in the will directing an apportionment-manner of payment. (Maddux, 93 Ill. App. 3d at 437, 417 N.E.2d at 269.) Moreover, this court has rejected extension of equitable apportionment among recipients of testate and intestate property of a decedent’s estate which consisted solely of probate assets, where the decedent expressed a contrary direction by way of language that the specific devisees and legatees receive their respective devises and bequests without the deduction of any taxes. (In re Estate of Fenton (1982), 109 Ill. App. 3d 57, 62, 440 N.E.2d 222, 225.) In a more recent decision the court on review has rejected an argument that equitable apportionment should be applied though the residuary estate would be exhausted by payment of estate taxes, declining to further extend the doctrine to comport with decisions from other jurisdictions. In re Estate of Fry, 188 Ill. App. 3d at 339, 544 N.E.2d at 111.

While we agree that the burden-on-the-residue rule of construction is not applicable in the instant case, it is not because there was no residuary estate, as the circuit court found, but because the testator specified what property shall assume the burden of Federal estate taxes, other taxes and costs of administration. In the instant case the decedent specifically directed that all taxes which may become due by reason of his death be paid from his residuary estate. Therefore, the direction for payment has the same effect as application of the burden-on-the-residue rule with respect to Federal estate taxes and also makes inapplicable the equitable apportionment doctrine set forth in the Gowling and Roe decisions. The residuary estate must first be utilized to satisfy Federal estate taxes and other taxes and costs of administration, without contribution from the recipients of nonprobate property, the joint tenancy interests or life insurance proceeds for the Federal estate tax liability generated by those assets.

We further acknowledge the distinction between inheritance taxes and estate taxes noted by the circuit court in its conclusions of law. However, a testator may specify what property shall assume the burden of inheritance tax on the transfer of or the right of succession to his estate. (In re Estate of McDonald (1942), 314 Ill. App. 148, 150, 41 N.E.2d 128, 130.) Therefore, the distinction between inheritance and estate taxes is immaterial in a case such as this where the testator has expressed an intention that all taxes attributable to his estate be paid from the residuary estate. (See Horwitz v. Ritholz (1984), 125 Ill. App. 3d 193, 201-02, 465 N.E.2d 642, 647-48.) The first sentence of article second could not express a clearer intent but that all death taxes, including inheritance taxes, be paid from the testator’s residuary estate. Therefore, independent of the equitable apportionment or abatement issue, Dr. Aitken cannot be called upon to pay the Kentucky inheritance tax by way of a charge or levy upon his interest in the specified horses.

We also disagree with the conclusion of the circuit court that a residuary estate deficit must be categorized as the nonexistence of a residuary estate. In order to calculate the residuary estate and determine that there was a deficit, the executor had to segregate the specific legacy assets from the general pecuniary or liquid assets and thereafter determine what was left over after the general bequests would be paid. Implicit in a finding that there was a $220,000 deficit in the residuary where the estate and inheritance taxes paid totalled $400,000 is that there was a certain amount of money that the executor had available out of the residuary to pay towards the obligations singled out in sentence one of article second. We find, based on the facts presented, that there was a residuary estate, but that it was insufficient to satisfy the specified residuary obligations. The issue, as refined, is what, if any, direction was given by the testator concerning payment of the deficit.

Under Illinois law a testator is deemed to have acted upon the belief that his estate would be sufficient to answer the purposes to which it is devoted, but, if the chances of deficiency are anticipated, the order in which a legacy shall abate may be controlled by direction of the testator expressed in his will. (In re Estate of McDonald, 314 Ill. App. at 151, 41 N.E.2d at 130.) In such cases, however, the testator indicates that a certain legacy is to be given priority over others such that in the case of a deficiency in the estate, his wish will be enforced. (In re Estate of McDonald, 314 Ill. App. at 151-52, 41 N.E.2d at 131.) In the absence of a provision in the will for a scheme of disposition, general legacies suffer and abate pro rata, consistent with the Illinois abatement statute, now section 24 — 3(b) of the Probate Act. In re Estate of Fleer (1974), 21 Ill. App. 3d 56, 59, 315 N.E.2d 260, 262.

As one Illinois court has previously stated, “[a] rule of construction which prefers specific over general bequests and devises in the allocation of the burden of debts and taxes, which in substance is the residue rule which Illinois courts have long followed, is not manifestly unfair or a great distance apart from what a decedent’s desires might ordinarily be assumed to be if [the] matter had been given full and adequate consideration.” (In re Estate of Phillips (1971), 1 Ill. App. 3d 813, 816, 275 N.E.2d 685, 688.) A “specific legacy” singles out a particular thing or things which the testator intends the donee to have without regard to their value, and a “general legacy” can be satisfied out of general assets, since the chief element of the gift is its value. (In re Estate of Berman (1963), 39 Ill. App. 2d 175, 177-78, 187 N.E.2d 541, 544.) We find that, by directing in the will that the burden of death taxes was to fall on the residuary estate, the testator expresses a similar preference for specific devisees and legatees over the general devisees and legatees. Whether by rule of construction or specific direction in the will, the result is consistent with the legislative pronouncement set forth in the abatement statute whereby specific legacies are preferred over general legacies such that the specific legacies are satisfied first if the estate is insufficient to pay all legacies.

Moreover, our review of the facts herein indicates that the only legacies over which the testator indicated any preference were the specific legacies of his interests in horses owned in common with another person, except for a horse named Niqua, that is, the horses owned in common with Dr. Aitken, Nancy Vanier and Michael Ja-covac. In article twelfth the testator provided that the executor was to make no claim to such interest. We further find that the language in article second, “my executor shall not seek contribution or reimbursement from any person for payment of any part of such taxes,” is a direction against equitable apportionment, not against abatement, consistent with the above-noted Illinois decisions. Thus, the testator’s intention gleaned from the will as a whole does not support an intention that the testator wanted equitable apportionment of the residuary estate deficit among the preresiduary legatees and recipients of nonprobate property.

We also note that in Mosher v. United States (D. Conn. 1975), 390 F. Supp. 1041, which was relied upon by the circuit court in the instant case in reaching its decision, the executor had argued that a combined direction, to pay taxes from an insufficient residuary estate but not to reduce bequests by proration or seek reimbursement for the taxes, required the tax clause to fail and required the executor to prorate the taxes according to that State’s statutory apportionment scheme. The district court rejected the argument, finding that such language was an unambiguous direction against proration-ing, and concluded that the preresiduary bequests must ratably abate to satisfy payment of the taxes. (Mosher, 390 F. Supp. at 1044-45.) In contrast, we find that the direction in the instant case not to seek contribution or reimbursement was not an unambiguous rejection of the Illinois rules of abatement but rather the testator’s direction against equitable apportionment.

While the Mosher and White decisions were relied upon by the circuit court in reaching its decision because the cases had certain facts in common with the instant case, we decline to accord them any authority with respect to our decision, particularly because, as Dr. Aitken duly notes, unlike Illinois the jurisdictions in which Mosher and White were decided had enacted equitable apportionment statutes. The enactment of such statutes creates a presumption that the testator intended that the taxes be apportioned in the statutory manner. (Annot., 37 A.L.R.2d 14 (1954).) A testator is presumed to have known the law and to have made his will in conformity, and therefore the state of the law when a will is made affords considerable assistance in ascertaining a testator’s intention, if otherwise unclear. (Belfield v. Findlay (1945), 389 Ill. 526, 529, 60 N.E.2d 403, 404.) The same presumption accorded equitable apportionment statutes will likewise be accorded the statute on abatement enacted by the Illinois legislature, which was in effect at the time the decedent in the instant case executed his will and codicil thereto.

We hold, therefore, that the testator did not “provide otherwise” than for the statutory abatement scheme set forth in section 24 — 3(b) of the Probate Act and that the circuit court of St. Clair County erred in entering summary judgment for the Executor on this issue. Accordingly, we reverse the October 30, 1990, order of the circuit court of St. Clair County and enter judgment in favor of defendant, Louis F. Aitken, M.D., on his cross-motion for summary judgment.

Dr. Aitken and the Executor have both prayed for an order from this court that their respective attorney fees and costs incurred in this appeal and in any subsequent related proceedings before the trial court be paid from the assets of the estate as an expense of administration. An ambiguity in a will justifies suit for construction, and the trial court, finding the need for construction, properly allowed attorney fees and costs for both parties to be charged as a cost of administration. (See Orme v. Northern Trust Co. (1962), 25 Ill. 2d 151, 183 N.E.2d 505.) The party appealing the construction placed upon a will by the lower court, however, does so at his own risk and cost. (Glaser v. Chicago Title & Trust Co. (1948), 401 Ill. 387, 393, 82 N.E.2d 446, 449.) By our reversal of the October 30, 1990, order of the circuit court of St. Clair County and entry of judgment in his favor, Dr. Aitken was vindicated on appeal in the assertion of a construction of the will contrary to that placed upon it by the court below. We find, therefore, that Dr. Aitken is entitled to an order that his reasonable attorney fees and costs on appeal be paid as a cost of administration of this estate. (See Rosenthal v. First National Bank (1970), 127 Ill. App. 2d 371, 374-75, 262 N.E.2d 262, 264.) The attorney for the Executor is entitled to reasonable compensation for his services under section 27 — 2 of the Probate Act (Ill. Rev. Stat. 1989, ch. 110½, par. 27—2), where the executor’s interest in the appeal, as appellee, was to sustain the judgment of the lower court. (Dyslin v. Wolf (1952), 347 Ill. App. 80, 87-88, 106 N.E.2d 193, 196.) Because the determination of what constitutes reasonable compensation is a matter peculiarly within the discretion of the trial court (Estate of Knight v. Knight (1990), 202 Ill. App. 3d 258, 261, 559 N.E.2d 891, 894), we must remand this proceeding to the circuit court of St. Clair County to determine Dr. Aitken’s and the Executor’s reasonable attorney fees and costs in this appeal and to enter judgment in favor of Dr. Aitken and the Executor, respectively, for the compensation so determined and to order that said judgments be paid by the estate as a cost of administration consistent with our judgment on appeal in favor of Dr. Aitken.

Reversed and remanded.

HARRISON and LEWIS, JJ., concur.


author: JUSTICE BOWMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANTHONY BERG, Defendant-Appellant.
    Second District
    No. 2—90—0065
    Opinion filed December 30, 1991.
    Rehearing denied March 2, 1992.

      G. Joseph Weller, of State Appellate Defender’s Office, of Elgin, Thomas A. Lilien, of State Appellate Defender’s Office, of Ottawa, and Edwin R. McCullough, of Chicago, for appellant.
    Dennis Schumacher, State’s Attorney, of Oregon, and Richard E. Zulkey, of Chicago (William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE BOWMAN

delivered the opinion of the court:

A jury in the circuit court of Ogle County convicted defendant, Anthony Berg, of witness harassment (Ill. Rev. Stat. 1989, ch. 38, par. 32—4a). He appeals, contending that the evidence was insufficient to prove him guilty beyond a reasonable doubt.

Susan Courtney is a social worker for the Department of Children and Family Services (DCFS). On the morning of June 22, 1989, she testified regarding defendant in a child-custody hearing. After the hearing, she left the courtroom with co-worker Adrianne Riipi and intern Cynthia Nelson. Defendant approached the three as they were waiting for an elevator outside the courtroom.

Defendant stopped about five feet away and said, “Susan, why did you lie in court?” Courtney denied lying, but defendant repeated the allegation.

At that point, defendant stepped closer to Courtney and raised his voice. He said, “[Y]ou are going to be really sorry you said this. You are going to be really sorry.” His voice continued to get louder, and he kept moving closer to Courtney. His fists were clenched, and he appeared very angry. He then started pointing at Courtney and said, “You are going to pay for what you said, and you are going to pay soon.”

After he said this his girlfriend, Debbie Rasmussen, tried to persuade him to leave. Then James Cratty, a sheriff’s deputy serving as a bailiff, escorted him out of the courthouse. As he was moving away, defendant said, “[SJomebody bigger than me is going to make you pay for this.”

Courtney testified that her initial reaction to this incident was surprise and amazement and then she began to get scared. She returned to the courtroom where she had just testified and told Assistant State’s Attorney Robin Minnis that defendant had threatened her. Minnis advised her to report the incident to the sheriff’s department. Courtney then made out a report to Deputy Gregory Breitel.

On redirect examination, the prosecutor asked Courtney whether she left town for the weekend following the incident because she was afraid. Defense counsel objected on the ground that the question went beyond the scope of cross-examination, and the trial court sustained the objection. However, Riipi later testified without objection that Courtney did spend the following weekend out of town.

Riipi, Nelson and Cratty all gave substantially similar accounts of the incident outside the courtroom. Cratty testified that he wears a hearing aid and could not hear what was being said. However, he stated that defendant appeared angry, and Cratty was concerned that the situation could turn into a physical confrontation.

The provision which defendant was convicted of violating, section 32 — 4a of the Criminal Code of 1961, provides as follows:

“A person who, with intent to harass or annoy one who has served as a juror or as a witness in a legal proceeding, because of the *** testimony of such witness, communicates directly or indirectly with the juror or witness in such manner as to produce mental anguish or emotional distress or who conveys a threat of injury or damage to the property or person of such party or witness *** commits a Class 4 felony.” (Ill. Rev. Stat. 1989, ch. 38, par. 32—4a.)

Defendant raises four separate issues, each challenging the sufficiency of the evidence to establish a particular element of the crime. Specifically, defendant contends that the evidence was insufficient to prove that (1) he had the requisite intent to harass Susan Courtney; (2) he conveyed a threat; and (3) the communication caused mental anguish to Courtney. Finally, defendant contends that even if the communication was a threat, it was made as a result of passing anger and thus defendant lacked the requisite intent to harass.

Defendant’s first contention is that the State failed to prove beyond a reasonable doubt that he had the requisite intent. In order to be convicted of witness harassment, the statute requires that the defendant intend to “harass or annoy” the witness. (People v. Nix (1985), 131 Ill. App. 3d 973, 975.) Intent may be inferred from the surrounding circumstances. People v. Jackiewicz (1987), 163 Ill. App. 3d 1062, 1065; People v. Jones (1981), 93 Ill. App. 3d 475, 479; 1 W. LaFave & A. Scott, Substantive Criminal Procedure, §3.5, at 316 (1986).

Defendant cites People v. Nix (1985), 131 Ill. App. 3d 973, in support of his contention that he lacked the requisite intent to harass or annoy Courtney. In Nix, the court reversed defendant’s conviction of witness harassment. Defendant encountered the victim, a drug enforcement agent who had testified against defendant, outside the women’s rest room of a restaurant. Defendant grabbed the victim’s arm and said, “How is it going?” (131 Ill. App. 3d at 974.) The victim then locked herself in the women’s room. When she emerged, defendant grabbed her again and said, “I want to talk to you.” (131 Ill. App. 3d at 974.) The appellate court found that the meeting between defendant and the victim was purely a chance encounter. The fortuitous meeting, combined with defendant’s inherently innocuous words, was insufficient to establish that defendant acted with the requisite intent to harass or annoy. 131 Ill. App. 3d at 975.

Nix is distinguishable from the instant case. It is not so clear that the encounter between defendant and Courtney was merely fortuitous. Although defendant argues that he merely “ran into” Courtney and her companions while they were waiting for an elevator, an equally plausible inference is that defendant was waiting for her. It appears that he approached her quickly and purposefully upon seeing her outside the courtroom and left only when requested to do so by a uniformed deputy. These facts do not compel the conclusion that the meeting was purely a chance encounter.

More importantly, defendant’s words were not inherently innocuous, as were those in Nix. Defendant told Courtney that she would “be sorry” and that she would “pay for” her lies. These remarks are certainly more threatening in nature than Nix’s remarks, “How is it going?” and “I want to talk to you.”

Defendant points out that during the encounter, Courtney asked him, “Is that a threat?” and defendant responded “no.” Courtney testified that she asked the question, but did not recall defendant’s response. She speculated that she probably missed it due to her surprise and the general confusion. In any event, defendant’s one-word denial is not conclusive on the issue of intent. It was but one factor among all the facts and circumstances which the jury could consider.

Other facts also support the inference that defendant intended to harass or annoy the victim. Courtney testified that defendant was walking toward her and that his fist was clenched. Deputy Cratty, who could not hear the words, observed that the situation appeared volatile and saw fit to escort defendant from the courthouse. Defendant’s girlfriend encouraged him to leave the area.

Defendant further objects that his statements such as “You’re going to have to answer to someone bigger than me,” refer to God and that Courtney was aware of this fact. Courtney, however, testified that it was only sometime later that she came to realize that “someone bigger than me” might refer to God. Moreover, defendant made this statement as Deputy Cratty was leading him away. Courtney speculated that defendant might have said this in an attempt to justify his previous statements once the deputy sheriff had intervened. Defendant’s prior statements such as “you are going to pay soon” are not necessarily consistent with divine judgment and could be seen as implying a more immediate form of retribution.

Considering all the facts and circumstances, the jury could conclude beyond a reasonable doubt that defendant possessed the requisite intent to harass or annoy Courtney because of her testimony at the custody hearing.

Defendant’s second and third arguments, which we consider together, are that the State failed to prove beyond a reasonable doubt either that defendant conveyed a threat or that he communicated with Courtney in such a way as to produce mental anguish or emotional distress.

The statute provides two alternative bases of liability for the offense of witness harassment. A person is guilty of witness harassment if, having the requisite intent, he (1) communicates with the witness in such a manner as to produce mental anguish or emotional distress or (2) conveys a threat of injury or damage to the person or property of the witness. (Ill. Rev. Stat. 1989, ch. 38, par. 32—4a.) Defendant contends that the evidence was insufficient to establish either of these alternatives.

The first alternative appears to be a subjective one, based on whether the communication in fact produced mental anguish or emotional distress in the mind of the victim. In this regard, defendant points out that Courtney did not call for help during the encounter and admitted that she later realized that the words could be viewed in a nonthreatening context.

Initially, we note that the entire confrontation took place in a very short time span, apparently less than a minute. Courtney testified that her initial reaction was surprise and amazement. It is entirely possible that she never had time to overcome her original surprise before defendant was led away. Immediately after the incident, Courtney reported to Ms. Minnis that defendant had threatened her and filed a complaint with the sheriffs department. Moreover, Adrianne Riipi testified without objection that following the incident Courtney left town for the weekend.

Secondly, we note that Courtney testified that she realized only sometime after the incident that defendant’s last remark to her might refer to God. She also stated that it appeared that defendant made this last statement only to provide an after-the-fact justification for his earlier remarks. This realization did not prevent her from reporting the incident or from leaving town for the weekend.

Defendant cites a number of cases from foreign jurisdictions in support of his contention that his statements did not constitute threats. These cases were decided under a number of different statutes and in any event hardly form an unbroken line of precedent. Compare Nix, 131 Ill. App. 3d 973; People v. Todaro (1970), 26 N.Y.2d 325, 325, 310 N.Y.S.2d 303, 304 (reversing conviction based on single statement, “I’ll get you for this”); and Commonwealth v. Sullivan (1979), 269 Pa. Super. 279, 409 A.2d 888 (conviction reversed based on two threats to kill deputy sheriff), with People v. Dorns (1976), 88 Misc. 2d 1064,_, 390 N.Y.S.2d 546, 546-47 (affirming conviction based on statements, “Who do you think you’re playing with, bitch. I’ll kill you”); Commonwealth v. Ferrer (1980), 283 Pa. Super. 21, 23, 423 A.2d 423, 424 (affirming conviction based on statement, “That conviction is going to cost you one of your fuckin kids, punk”); and State v. Zeit (1975), 22 Or. App. 480, 539 P.2d 1130 (affirming conviction based on 3 a.m. telephone calls threatening to kill victim or a family member).

We do not find these cases particularly helpful as they were decided under a variety of statutes which specify various elements for the offenses thereunder. To the extent a meaningful general principle can be derived from the cases it is that inherently innocuous statements or vaguely threatening statements, in the absence of additional circumstances indicating a present intention to carry out the threat, are insufficient to support a conviction. Conversely, even a single threatening statement, together with circumstances which indicate the party making it is likely to carry out the threat, can support a conviction.

In the instant case, defendant’s statements were sufficiently threatening and accompanied by sufficient corroborating circumstances to support the jury’s verdict. Defendant admits that his words were more threatening than the innocent statements in Nix. Defendant stated without qualification that Courtney would “pay” for her “lies.” He said this while moving toward her in an obviously agitated state with his fist clenched. The situation was so charged with danger that Deputy Cratty saw fit to escort defendant from the premises. Moreover, under the first alternative in the statute, defendant’s statements and conduct did in fact cause Courtney mental anguish.

Defendant’s statements and conduct were not so clearly threatening as those in People v. Bemis (1985), 127 N.H. 490, 503 A.2d 789, on which the State relies. In that ease, the defendant punched and kicked the victim and threatened to break his arm if he testified against the defendant. (127 N.H. at 493, 503 A.2d at 791.) We hold, however, that defendant’s statements and accompanying conduct were sufficient to support his conviction. We note that the statute requires only an intention to “harass or annoy” the victim, not to physically harm or even threaten the victim. We decline to read into the statute a requirement that the defendant specify what harm he intends to visit on the victim or accompany the threat with physical violence. We do not believe that such is the intent of the statute.

Defendant’s final argument is that, even if his statements did constitute threats, they were made in a passing state of anger and, therefore, defendant lacked the requisite intent. This is substantially similar to defendant’s first argument. We have already held that there was sufficient evidence for the jury to find beyond a reasonable doubt that defendant purposely waited for Courtney to emerge from the courtroom and intentionally delivered his threatening remarks with the intent to annoy or harass.

This case is thus distinguishable from the cases which defendant cites, which involved only isolated comments obviously made in a state of transitory anger. (See People v. Todaro (1970), 26 N.Y.2d 325, 310 N.Y.S.2d 303; Commonwealth v. Sullivan (1979), 269 Pa. Super. 279, 409 A.2d 888.) Although Sullivan, which involved two separate threats to kill a peace officer, is somewhat difficult to harmonize with other decisions in this area, we note that in that case defendant was convicted under a Pennsylvania statute prohibiting “terroristic threats” and which requires the making of a threat “to commit any crime of violence with intent to terrorize another.” (Sullivan, 269 Pa. Super, at 281, 409 A.2d at 889.) This differs from the Illinois statute, which requires only an intention to “harass or annoy.”

For the foregoing reasons, defendant’s conviction of harassing a witness is affirmed.

Affirmed.

DUNN and UNVERZAGT, JJ., concur.


author: JUSTICE DUNN

text:
    THE PEOPLE ex rel. THE VILLAGE OF LAKE BLUFF, Plaintiff-Appellee, v. THE CITY OF NORTH CHICAGO, Defendant (Shriners Hospitals for Crippled Children et al., Petitioners and Intervenors-Appellants).
    Second District
    Nos. 2—91—0293, 2—91—0319 cons.
    Opinion filed January 30, 1992.

      Mueller, Alspaugh & Lofthouse, of Schiller Park (Wayne T. Lofthouse, of counsel), for appellant Shriners Hospitals for Crippled Children.
    Hercules Paul Zagoras & Associates, Ltd., and William G. Rosing, of Rosing, Applehans & Smith, Ltd., both of Waukegan (Hercules Paul Za-goras, of counsel), for other appellants.
    William L. Barr, Jr., and Robert J. Best, both of Bell, Boyd & Lloyd, of Chicago (Daniel Lawler, of counsel), for appellee Village of Lake Bluff.
    Peter J. Nordigian, of Brydges, Riseborough, Morris, Franke & Miller, of Waukegan, for City of North Chicago.
   JUSTICE DUNN

delivered the opinion of the court:

Petitioners Shriners Hospitals for Crippled Children (Shriners) and Rossman Danner Company et al. (Rossman Danner) appeal from the order of the trial court denying their petitions to intervene in an action between the plaintiff, the Village of Lake Bluff (Lake Bluff), and the defendant, the City of North Chicago (North Chicago). At issue is whether the petitioners have a right to intervene in an action between Lake Bluff and North Chicago which resulted in a consent decree incorporating an intergovernmental boundary agreement between the two municipalities pursuant to section 11 — 12—9 of the Municipal Code of 1961 (Municipal Code) (Ill. Rev. Stat. 1989, ch. 24, par. 11—12—9). We affirm the trial court’s order denying the petitions.

On March 17, 1986, Lake Bluff filed a complaint for writ of quo warranto against North Chicago, alleging North Chicago had annexed certain parcels of land improperly and asking the court to declare these annexations null and void. On January 19, 1988, prior to trial, the parties settled the dispute and agreed to enter into a consent decree incorporating, among other things, a municipal boundary line between them, beyond which neither party would attempt to annex without the written consent of the other party.

The trial court entered the consent decree on February 16, 1988. The decree provided in part that, pursuant to the authority contained in section 11 — 12—9 of the Municipal Code, the parties entered into an agreement concerning the boundary line between their respective municipalities beyond which neither party would annex without the consent of the other municipality for a period of 20 years. The court attached a copy of the agreement and a map of the boundary lines to which the parties had agreed.

The boundary agreement concerned certain unincorporated property located near the southern border of North Chicago and the northern border of Lake Bluff. The agreement placed the unincorporated properties owned by the petitioners on the Lake Bluff side of the boundary line. On June 17, 1988, Shriners contacted North Chicago to pursue the annexation of its property to North Chicago. In July 1988, North Chicago approved the annexation, but notified Shriners that the actual annexation would be delayed in order to obtain consent from Lake Bluff and to amend the agreement between the municipalities. On August 29, 1988, in accordance with the agreement, North Chicago and Shriners requested that Lake Bluff agree to an amendment to the agreement allowing North Chicago to annex the property as requested by Shriners. Lake Bluff agreed to consider North Chicago’s request on September 25, 1989, at its board of trustees meeting.

At the hearing, Lake Bluff heard testimony from Shriners and its engineering firm, from the city attorney for North Chicago, and from North Chicago’s mayor. On November 27, 1989, Lake Bluff refused to amend the boundary agreement to allow North Chicago to annex Shriners’ property. On February 16, 1990, Shriners filed a petition pursuant to section 2 — 1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2—1401) for post-judgment relief in the original quo warranto action filed by Lake Bluff and, alternatively, a petition to intervene in that action.

On July 20, 1990, Rossman Danner, a contract purchaser of an unincorporated property located on Lake Bluff’s side of the boundary, the First National Bank of Highland Park as trustee of the property, and Edward, Helen and Percy Lloyd filed a petition to intervene and a complaint for declaratory judgment. The purchase of the property by Rossman Danner was contingent upon the annexation of the property to North Chicago.

On February 15, 1991, after hearing argument, the trial court entered an order denying the petitions to intervene and the other petitions seeking relief from Lake Bluff’s refusal to permit the annexation. The petitioners appeal, claiming the trial court erred in denying their petitions to intervene and in construing section 11— 12 — 9 to bar the petitioners from seeking annexation of their properties. Shriners claims that the trial court also erred in denying its section 2 — 1401 petition for relief. In addition, Rossman Danner claims the trial court erred in refusing to consider its motion for a declaratory judgment. The petitioners’ claims have been consolidated on appeal. We affirm.

The petitioners assert their right to intervene in the present matter under section 2 — 408(a) of the Code. That section provides in part:

“(a) Upon timely application anyone shall be permitted as of right to intervene in an action: (1) when a statute confers an unconditional right to intervene; or (2) when the representation of the applicant’s interest by existing parties is or may be inadequate and the applicant will or may be bound by an order or judgment in the action; or (3) when the applicant is so situated as to be adversely affected by a distribution or other disposition of property in the custody or subject to the control or disposition of the court or a court officer.” Ill. Rev. Stat. 1989, ch. 110, par. 2—408(a).

A petition to intervene must allege specific facts that demonstrate that the petitioners have a right to intervene. (People ex rel. Thomas v. Village of Sleepy Hollow (1981), 94 Ill. App. 3d 492, 495.) In determining whether to grant a petition to intervene as a matter of right, a trial court’s discretion is limited to determining timeliness, inadequacy of representation by parties already in the suit, and whether the party seeking to intervene has a sufficient interest in the suit. (Schwechter v. Schwechter (1985), 138 Ill. App. 3d 602, 604.) Unless there is a clear abuse of discretion, the court’s judgment thereon will not be disturbed. (Johnson v. Burnett (1989), 182 Ill. App. 3d 574, 580.) The intervenor need not show a direct interest in the suit; however, he or she must establish an injury to an enforceable right or interest which must be more than a general interest. Harris Trust & Savings Bank v. Duggan (1983), 95 Ill. 2d 516, 525; Serio v. Equitable Life Assurance (1989), 184 Ill. App. 3d 432, 435-36.

The petitioners claim that, because they have the right to petition North Chicago to request the annexation of their land under section 7 — 1—2 of the Municipal Code (Ill. Rev. Stat. 1989, ch. 24, par. 7—1—2), they have a sufficient interest in the subject matter to allow for their intervention. We disagree.

Section 11 — 12—9 of the Municipal Code (Ill. Rev. Stat. 1989, ch. 24, par. 11—12—9) provides if unincorporated territory is within IV2 miles of the boundaries of two or more corporate authorities that have adopted official plans, those corporate authorities may agree upon a line which shall mark the boundaries of the jurisdiction of each corporate authority adopting the agreement. In the absence of an agreement, section 11 — 12—9 provides that the jurisdiction of any one of the corporate authorities shall extend to a median line equidistant from its boundary and the boundary of the other corporate authorities. It also provides in part:

“On and after September 24, 1987, such agreement may provide that one or more of the municipalities shall not annex territory which lies within the jurisdiction of any other municipality, as established by such line. In the absence of such a boundary line agreement, nothing in this paragraph shall be construed as a limitation on the power of any municipality to annex territory.” Ill. Ann. Stat., ch. 24, par. 11—12—9 (Smith-Hurd 1990).

As we explained in Village of South Elgin v. City of Elgin (1990), 203 Ill. App. 3d 364, the subsequent amendments to section 11 — 12—9 expressly provide that boundary line agreements may limit the annexation powers of one or more of the municipalities regarding territory which lies within the jurisdiction of any other municipality. In Village of South Elgin, we held that where no boundary line agreement exists, nothing prohibits one municipality from annexing territory within another municipality’s jurisdiction. (Village of South Elgin, 203 Ill. App. 3d at 371.) We stated:

“Annexation of contiguous, unincorporated territory lying within the respective municipalities’ planning jurisdiction boundaries is prohibited only if (1) the boundary line was an agreed-upon one and (2) the boundary-line agreement also included the annexation prohibition.” (Emphasis in original.) (Village of South Elgin, 203 Ill. App. 3d at 371.)

In the present case, Lake Bluff and North Chicago explicitly entered into an agreement limiting the power of each to annex territory within the other’s jurisdiction without consent.

Municipalities are creatures of the legislature and are subject to the legislative will (with the exception of the powers enuring to a “home rule” municipality). (In re Disconnection of Certain Territory From the Village of Machesney Park (1984), 122 Ill. App. 3d 960, 965; People ex rel. Landwer v. Village of North Barrington (1968), 94 Ill. App. 2d 265, 268.) Thus, it is the legislature which is granted the power of prescribing the conditions relative to the alteration of municipalities — whether through annexation, disconnection or incorporation. In re Disconnection of Territory, 122 Ill. App. 3d at 965; La Salle National Bank v. Village of Burr Ridge (1967), 81 Ill. App. 2d 209, 218.

Although the legislature has seen fit to give certain property-owners the right to petition a municipality for the annexation of their land, it has not granted those property owners the right to have that land annexed. Thus, a boundary line agreement which provides that the parties can agree to an annexation to the contrary of the agreement does not conflict with the right of property owners to petition for that annexation. See Groenings v. City of St. Charles (1991), 215 Ill. App. 3d 295, 304.

The legislature, recognizing that a municipality’s concerns do not end at its borders (Village of Lake Bluff v. Jacobson (1983), 118 Ill. App. 3d 102, 110), enacted section 11 — 12—9 in an effort to promote developmental harmony between incorporated municipalities and contiguous unincorporated territories which may ultimately be annexed. (Village of South Elgin, 203 Ill. App. 3d at 373.) North Chicago and Lake Bluff entered into the boundary agreement in accord with that section, and the petitioners lack a sufficient interest in the present case to provide for their intervention into the matter.

Further, Lake Bluff’s suit against North Chicago was disposed of by consent decree. A consent decree is not considered a judicial determination of the rights of the parties, nor does it purport to represent the judgment of the court, but merely records that agreement of the parties. (People ex rel. Thomas v. Village of Sleepy Hollow (1981), 94 Ill. App. 3d 492, 495.) This court has held that in such a situation the petitioner’s interests could not be affected by the decree, and, therefore, the petitioners had no right to intervene. People ex rel. Thomas v. Village of Sleepy Hollow, 94 Ill. App. 3d at 496.

Petitioners argue the trial court’s interpretation of section 11— 12 — 9 resulted in an unconstitutional deprivation of their property rights without due process. However, the law is clear that the powers conferred upon municipalities and the territory over which these powers will be exercised rests within the sole discretion of the State. (See Kaltsas v. City of North Chicago (1987), 160 Ill. App. 3d 302, 307; People ex rel. Landwer v. Village of North Barrington, 94 Ill. App. 2d at 268-69; Hunter v. City of Pittsburg (1907), 207 U.S. 161, 177-79, 52 L. Ed. 151, 158-59, 28 S. Ct. 40, 46-47.) Thus, the case at bar does not involve a fundamental right but, rather, the prerogative of the State to establish municipal boundaries.

In People ex rel. Landwer v. Village of North Barrington, 94 Ill. App. 2d 265, this court held no fundamental right was implicated where the adequacy of notice of annexation was at issue. Quoting extensively from the United States Supreme Court in Hunter v. City of Pittsburg, 207 U.S. at 177-79, 52 L. Ed. at 158-59, 28 S. Ct. at 46-47, we stated:

“The state, therefore, at its pleasure, may modify or withdraw all such powers, may take without compensation such property, hold it itself, or vest it in other agencies, expand or contract the territorial area, unite the whole or a part of it with another municipality, repeal the charter and destroy the corporation. All this may be done, conditionally or unconditionally, with or without the consent of the citizens, or even against their protest. In all these respects the state is supreme ***. Although the inhabitants and property owners may, by such changes, suffer inconvenience, and their property may be lessened in value by the burden of increased taxation, or for any other reason, they have no right, by contract or otherwise, in the unaltered or continued existence of the corporation ***.” People ex rel. Landwer v. Village of North Barrington, 94 Ill. App. 2d at 269.

We conclude that no violation of due process has occurred, substantive or procedural, because an owner of unincorporated property does not have a fundamental right to be annexed to a municipality. Nor does a property owner possess an entitlement to increase the value of his or her land through annexation. (Groenings, 215 Ill. App. 3d at 307.) The City of North Chicago struck a bargain with the Village of Lake Bluff. It agreed not to annex property within Lake Bluff’s planning jurisdiction. Section 11 — 12—9 of the Municipal Code of 1961 permits such an action. Because no fundamental right is in danger of impairment, no need for a hearing on the issue exists. See Kaltsas, 160 Ill. App. 3d at 309.

A municipality has a legitimate interest in regulating the development of land near its borders to protect the health and safety of its people (City of Urbana v. County of Champaign (1979), 76 Ill. 2d 63, 70) and to provide uniformity and continuity (Petterson v. City of Naperville (1956), 9 Ill. 2d 233, 246). (Village of South Elgin, 203 Ill. App. 3d at 373.) Lake Bluff and North Chicago properly exercised their powers to enter into a boundary line agreement to further this interest.

We need not address Shriners’ claim that the trial court erred in denying their section 2 — 1401 petition, as that relief is only available to the parties to an action. (Elmhurst National Bank v. Novak (1985), 137 Ill. App. 3d 904, 906-07.) Under the authority of In re Estate of Reilly (1979), 68 Ill. App. 3d 906, this court has held that section 2 — 1401 (previously section 72) was never intended to permit a person not a party to an action to intervene after final judgment and reopen the suit so as to permit a new claim to be filed., Elmhurst National Bank, 137 Ill. App. 3d at 906.

Accordingly, the judgment of the circuit court of Lake County denying the petitions to intervene is affirmed.

Affirmed.

BOWMAN and NICKELS, JJ., concur.