text:
    GUY WASHINGTON, Plaintiff-Appellee, v. ROBERT WILLIAMS, Defendant-Appellant.
    Third District
    No. 3—90—0850
    Opinion filed July 10, 1991.
    Arthur J. Inman, of Peoria, for appellant.

      William T. Makovic, of East Peoria, for appellee.
   JUSTICE McCUSKEY

delivered the opinion of the court:

The plaintiff, Guy Washington, brought this action against the defendant, Robert Williams, to recover damages for personal injuries the plaintiff sustained in a hunting accident. The trial court found that Williams had engaged in wilful and wanton misconduct and awarded Washington $25,000. The defendant appeals. We affirm.

At trial, Williams testified as an adverse witness for Washington. He said he had known Washington for 20 to 25 years and that they had been close friends for three to four years prior to the incident. The two, along with Ellis Moore and Otis Grant, frequently went rabbit hunting together. All four went hunting together on November 8, 1981. While Moore remained near the parked car, the other three entered a wooded area approximately 60 feet wide. They proceeded in a straight line, with Williams in the center, Washington to his right, and Grant to his left. Because he was uncomfortable in the middle, Williams went ahead of the other two and climbed up on a brush top where a tree had fallen. Williams then waited for the dogs to flush out rabbits. Washington and Grant were still to Williams’ right and left respectively, but behind him. They were squatting down, waiting for a rabbit to come by.

Williams stated that the woods were not thick and he could see to either side, but had to look hard to see where everyone was. According to Williams, Grant fired six times somewhere behind them and killed a rabbit. Williams shot twice at a rabbit he saw coming straight toward him. His shots were fired in the direction of the car, but toward the ground about 10 to 15 feet in front of him. Williams denied Washington had called to him warning that a rabbit was approaching. He noted that before firing, he had looked at Washington.

Approximately five minutes after Grant fired his last shot, Williams saw Washington crawling out of the woods shouting he had been shot. Washington was about 30 to 40 feet away from Williams. Williams called to the others that Washington was shot. He and Grant then carried Washington to the car. Williams first testified he drove Washington to the hospital, but later stated that Grant drove. Williams saw no blood on Washington’s face or eye, but Washington was holding his hand over his eye.

Williams stated that as an experienced hunter, he was aware there was a rule or custom not to shoot toward what you could not see. He also stated that perhaps Washington had been shot earlier while hunting elsewhere and the others had brought Williams out there hunting in order to place the blame on him.

Ellis Moore testified he was a friend to both Washington and Williams and had often hunted with both in the past. On the morning of the incident, prior to the hunt, Moore noticed nothing unusual about Washington’s eye. During the hunt, Moore waited by the car and therefore did not see how Washington was shot. He noted when Williams came running past him to the car, Williams said nothing. A few minutes later, Grant came down the hill holding Washington by the arm. Grant said that Washington had been shot. Moore saw blood coming from between Washington’s fingers that were covering his eye. After the four men got into Williams’ car, Grant drove because Williams was too nervous. On their way to the hospital, Williams said, “I’m sorry. I didn’t intentionally shoot Guy.”

A few years after this incident and prior to his testimony in this case, Moore talked to Williams. Williams told Moore he did not know whether he had shot Washington. Moore responded by telling Williams he had previously told Moore he shot Washington. Williams said he was excited then and liable to say anything.

At the time of trial in November of 1990, Washington was 79 years old. He corroborated Williams’ testimony concerning the positions of the group prior to the shooting. According to Washington, though, once Williams was on the brush pile up ahead, Washington called to him that a rabbit was approaching. Williams, who was facing Washington, shot downward and Washington jumped up. Williams shot again and hit him. Washington said that he could see through the woods and was looking right at Williams when he shot him. He immediately fell to the ground and called to Grant that he had been shot. When he put his hand over his eye, he felt blood and slime running through his fingers. Williams started running towards the car. Grant drove Williams’ car to the hospital because Williams was too nervous. On the way, Williams told Washington he was sorry he shot him.

According to Washington, prior to this shooting, he had 20/20 vision. He stated he had not injured his eye before or after the incident. As a result of the incident, he lost his right eye, undergoing two operations for its removal. However, the surgeons were unable to remove the BB’s. He noted he had experienced headaches since the shooting and his eye still caused him pain. While he still drove during the day, he drove less frequently at night due to the strain. He could not see things up close and could not read anymore.

Williams took the stand on his own behalf and denied shooting Washington. He denied having any conversation with Moore after the incident. He also denied saying he was sorry he shot Washington, though he did say at the scene that he was sorry that Washington had been shot.

The trial court found Williams liable under the count charging wilful and wanton misconduct and awarded Washington $25,000 in damages.

On appeal, Williams argues the trial court’s finding of wilful and wanton misconduct was against the manifest weight of the evidence. We disagree.

A wilful or wanton injury must have been intentional or the act must have been committed under circumstances exhibiting a reckless disregard for the safety of others. Such acts include the failure to exercise ordinary care to prevent injury after knowledge of an impending danger. The trier of fact must closely scrutinize the facts the evidence discloses to determine whether wilful and wanton misconduct exists in a given case. (Barth v. Board of Education (1986), 141 Ill. App. 3d 266, 490 N.E.2d 77.) It is well established that in a bench trial it is within the province of the trial court to determine the credibility and weight of testimony, to resolve inconsistencies and conflicts, and to render its decision accordingly. Furthermore, a trial court’s decision will not be disturbed on appeal unless it is contrary to the manifest weight of the evidence. Silas v. Robinson (1985), 131 Ill. App. 3d 1058, 477 N.E.2d 4.

Applying the above principles to the instant case, we conclude the trial court’s verdict was consistent with the manifest weight of the evidence. The court could reasonably conclude from the evidence that Williams displayed reckless disregard for Washington’s safety.

Initially, we note it is apparent the trial court simply did not find Williams’ testimony credible and believed both Washington’s and Morris’ testimony instead. According to Washington, Williams was facing him when he fired his gun. Washington testified that he jumped up after Williams’ first shot. Williams did not deny he saw where Washington was. Yet, he again shot in Washington’s direction, this time hitting him. Given these circumstances, the trial court’s finding of wilful and wanton misconduct was not against the manifest weight of the evidence.

Williams also contends that the trial court’s award of $25,000 was excessive. He argues the trial court had no evidence before it from which it could determine the value of the injury.

It is well established that reviewing courts must be reluctant to interfere with the discretion of the trier of fact in matters relating to damages. The amount of damages fixed by the trier of fact should not be disturbed on appeal unless it is obviously the result of passion or prejudice, or is clearly excessive. Nicholson v. St Anne Lanes, Inc. (1985), 136 Ill. App. 3d 664, 483 N.E.2d 291.

Williams does not cite any authority, nor can we find any, for his apparent proposition that damages must be proved by medical testimony. The evidence in this case established that prior to this incident, Washington had no pain or problems with his eye. At the age of 70, he had to undergo two operations for the removal of his eye. Additionally, the doctors were unable to remove the BB’s. Approximately nine years after this shooting, Washington was still experiencing pain in his eye area, headaches, and was unable to read anymore. Considering the extent of Washington’s disability, we conclude the amount of damages was not clearly excessive.

The judgment of the circuit court of Peoria County is affirmed.

Affirmed.

STOUDER, P.J., and HAASE, J., concur.


source: Caselaw Access Project

author: JUSTICE GEIGER

license: Public Domain

text:
      In re A.C., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. A.C., Respondent-Appellant).
    Second District
    No. 2—89—0869
    Opinion filed July 11, 1991.

      G. Joseph Weller, and Barbara R. Paschen, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Paul A. Logli, State’s Attorney, of Rockford, and Terrence R. Lyons, of Chicago (William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GEIGER

delivered the opinion of the court:

The minor, A.C., appeals from the trial court’s order finding him delinquent, continuing his current term of probation, and placing him under the guardianship and custody of the Juvenile Probation Department. The issues on appeal are (1) whether a detached garage constitutes a “residence” under the criminal trespass to residence statute (Ill. Rev. Stat. 1989, ch. 38, par. 19 — 4); and (2) whether the State proved beyond a reasonable doubt that A.C. did not have authority to enter and sleep in the garage. We reverse.

On June 22, 1989, the State filed a juvenile petition, alleging that on June 21, 1989, A.C. committed a criminal trespass to a residence, in violation of section 19 — 4 of the Criminal Code of 1961 (Code) (Ill. Rev. Stat. 1989, ch. 38, par. 19 — 4). On those dates, A.C. was serving a two-year term of probation on an unrelated juvenile charge.

The following testimony was adduced at the July 3, 1989, adjudicatory hearing. Carolyn Dahlberg testified that on June 21, 1989, at approximately 6 a.m., she discovered a boy sleeping in her garage. She phoned the police and they responded to the call. She accompanied the police to her detached garage, where they found three male youths and one adult female asleep. She saw the officers take two handcuffed youths, including A.C., out of her garage.

Dahlberg testified that she was familiar with the three males but did not recognize the female. She further testified that she did not give A.C. permission to sleep in her garage. She stated that while the garage is part of the property at 606 Kennon Road in Rockford, Illinois, the address where she lives, it is not attached to the house.

On cross-examination, Dahlberg testified that she has a 14-year-old son, Robert, who is a friend of A.C.’s. She admitted that Robert may have given A.C. permission to sleep in the garage but, if he did, it was without her knowledge or consent.

Officer Chester Epperson of the Rockford police department testified next. He was one of the officers that responded to Dahlberg’s phone call reporting a person sleeping in her garage. He testified that upon arriving at the scene, he spoke with Dahlberg, who told him that she wanted the boy out of her garage. After entering the garage, he discovered four persons sleeping there. He woke them and brought them out of the garage. He asked them their names and found out that two of the four were reported runaways. He then handcuffed them to transport them to the Public Safety Building. He again spoke with Dahlberg, who informed him that she did not give her permission to anyone to sleep in her garage. On cross-examination, Officer Epperson testified that he spoke with Robert Dahlberg, who told him that he had given A.C. and others permission to sleep in the garage.

A.C. testified that on June 20, 1989, he and Robert went into the Dahlberg house. Robert asked his mother if A.C. could use the telephone. She told the two to go back outside since she was using the telephone. About 10 or 15 minutes later, the boys returned. A.C. saw Dahlberg “just sitting there.” Dahlberg never objected to A.C.’s presence. He used the telephone, and then he and Robert went outside again. On cross-examination, A.C. admitted that although Robert had given him permission to sleep in the garage, Mrs. Dahlberg had not done so.

The trial court found that, since Robert knew that his mother had forbidden him to see A.C., Robert had no authority to allow A.C. onto the property; therefore, A.C. was on the property without authority. The trial court further found that the term “residence” as used in the statute includes the curtilage and therefore would include a detached garage. It found A.C. guilty of criminal trespass to a residence, found him to be delinquent, ordered him to continue his current term of probation, and placed him under the guardianship and custody of the Juvenile Probation Department. A.C. moved for reconsideration or, in the alternative, for a new trial. The trial court denied those motions, and this appeal followed.

The first issue on appeal is whether, in a prosecution for criminal trespass to a residence, the term “residence” as used in section 19 — 4 of the Code includes a detached garage.

Section 19 — 4 of the Code provides in pertinent part:

“A person commits the offense of criminal trespass to a residence when, without authority, he knowingly enters or remains within any residence, including a house trailer. For purposes of this Section, in the case of a multi-unit residential building or complex, ‘residence’ shall only include the portion of the building or complex which is the actual dwelling place of any person and shall not include such places as common recreational areas or lobbies.” Ill. Rev. Stat. 1989, ch. 38, par. 19 — 4.

The term “residence” is not defined in the Code. However, in other contexts, the word has been defined in a manner to indicate a relatively permanent habitat. See In re R.D.H. (1979), 68 Ill. App. 3d 299, 302 (“residence” defined for venue in juvenile proceedings under the Juvenile Court Act); Stein v. County Board of School Trustees (1967), 85 Ill. App. 2d 251, 256, aff’d (1968), 40 Ill. 2d 477 (“residence” defined for voting in school board elections).

We find no evidence in the plain language of the Code that section 19 — 4’s use of the term “residence” was intended to include anything more than a relatively permanent habitat. (See People v. Williams (1990), 133 Ill. 2d 449, 454.) Further, we note that there was no testimony here that anyone “inhabited” the garage. The garage was unattached to the house where Dahlberg and her son lived. We find that the garage here was not a “residence” as set forth in section 19 — 4 of the Code.

The State argues that the General Assembly, in enacting the residential burglary statute (Ill. Rev. Stat. 1989, ch. 38, par. 19 — 3), employed the term “dwelling” as opposed to “residence,” and by so doing intended the term “residence” to be more expansive than a “dwelling”; therefore, according to the State, the term “residence” would encompass an unattached garage. We disagree.

We find no such distinction between a “dwelling” and a “residence” here. The term “dwelling” is defined as an “enclosed space *** intended for *** human habitation” (Ill. Rev. Stat. 1989, ch. 38, par. 2 — 6), while “residence” is defined as a permanent habitat (see In re R.D.H., 68 Ill. App. 3d at 302). Under either meaning, neither “dwelling” nor “residence” would include a detached building used only as a garage.

Our finding leads us to the conclusion that the State has not proved that A.C. was guilty beyond a reasonable doubt of criminal trespass to a residence since it has not proved the essential element that A.C. knowingly entered or remained within a residence. (See People v. Collins (1985), 106 Ill. 2d 237, 261.) We need not address A.C.’s other contention on appeal.

The decision of the circuit court of Winnebago County is reversed.

Reversed.

McLaren and NICKELS, JJ., concur.


author: JUSTICE NICKELS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JUDITH ANN BENKOWSKI, Defendant-Appellant.
    Second District
    No. 2—89—1278
    Opinion filed July 12, 1991.

      G. Joseph Weller and Kathleen J. Hamill, both of State Appellate Defender’s Office, of Elgin, for appellant.
    James E. Ryan, State’s Attorney, of Wheaton (William L. Browers and Mary Beth Burns, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE NICKELS

delivered the opinion of the court:

Defendant, Judith Ann Benkowski, entered a nonnegotiated plea of guilty to three counts of murder, conspiracy to commit murder, and solicitation of murder for hire. (Ill. Rev. Stat. 1987, ch. 38, pars. 9— l(aXl), 8 — 2(a), 8 — 1.2(a).) Although finding defendant eligible for imposition of the death penalty because she had “procured another to commit the murder for money or anything of value” (Ill. Rev. Stat. 1987, ch. 38, par. 9 — l(bX5)), the court nevertheless found two statutory factors in mitigation (see Ill. Rev. Stat. 1987, ch. 38, par. 9 — 1(c) et seq.). Thus, the defendant’s lack of a criminal history and absence from the scene at the time of the commission of the murder (Ill. Rev. Stat. 1987, ch. 38, pars. 9 — 1(c)(1), (cX5)) precluded imposition of the death penalty. After a sentencing hearing, the court found that the victim’s age of 67 years at the time of his murder and the brutal and heinous nature of the offense justified an extended sentence of 100 years’ imprisonment. (Ill. Rev. Stat. 1987, eh. 38, par. 1005 — 5— 3.2(b).) Defendant appeals asserting that: (1) the trial court abused its discretion in imposing the maximum extended sentence; and (2) the court erroneously entered defendant’s convictions and sentences on the inchoate offenses of conspiracy to commit murder and solicitation of murder for hire. We affirm in part and reverse in part.

Defendant entered a guilty plea to charges stemming from the November 4, 1988, contract murder of her 67-year-old husband, Clarence Benkowski. Defendant paid Edward Brown, who entered a negotiated guilty plea in exchange for a natural-life sentence, to kill her husband. Debra Santana, who was a common friend of both defendant and Brown and who was instrumental in the murder, also entered a negotiated guilty plea in exchange for a 22-year sentence of imprisonment.

Because defendant appeals only her sentence, we can dispense with a detailed recitation of the facts. In the early fall of 1988, defendant secured the services of Brown to accomplish the murder of her husband. The killing was initially planned for October 3, 1988, but was cancelled. Defendant continued to meet and plan the killing with Brown during the month of October and, eventually, on November 4, 1988, defendant drugged her husband with sleeping pills to insure his sound sleep, locked the family dog in a spare room, and provided Brown with access to her home, her husband’s gun, a pillow to muffle the sound of the gunshots, and directed Brown to the bedroom where her husband lay taking his customary morning nap. Brown received $3,000 and defendant’s wedding rings worth $4,000 for the killing. Defendant ransacked the bedroom to make it appear as if a home intruder had committed the murder and then left with Santana for drinks and lunch. Returning several hours later, they then notified police. Although originally telling police the arranged home intruder version of events, defendant eventually confessed and identified both Brown and Santana as participants. Defendant entered a nonnegotiated plea of guilty, and a death penalty hearing took place. The court found defendant eligible for the death penalty but specifically found that her lack of a criminal record and her absence from the bedroom where her husband lay sleeping when Brown shot him were sufficient factors in mitigation to prevent imposition of the death penalty.

The hearing continued with the sentencing phase at which the State sought a sentence of natural life, and defendant’s counsel suggested the minimum sentence of 20 years’ imprisonment. The court accepted additional evidence in aggravation and mitigation, including defendant’s version of the events leading to her husband’s death. However, defendant’s version of events differed in several critical respects from that of Brown.

Brown testified that defendant approached him and that he had resisted the idea of killing her husband. However, defendant persisted, and Brown eventually agreed to kill defendant’s husband for $2,000, despite his reservations. Prior to the original planned murder date of October 3, 1988, when Brown learned that defendant had told Santana and defendant’s boyfriend of the plan, Brown withdrew from the plan because too many people knew. Defendant again urged Brown to proceed and gave him an additional $1,000 and her wedding rings and promised him another $1,000 after the killing occurred. Again on November 4, 1988, after Brown arrived in the morning to fulfill the plan only to find no one home, he attempted to withdraw from the plan. However, defendant once again prevailed upon Brown to proceed. Brown testified that at no time did defendant express any reservations or attempt to stop the killing of her husband and that she appeared happy and rubbed her hands together, as if in glee, after Brown shot defendant’s husband with her husband’s own gun as her husband lay sleeping in his own bed. Defendant suggested the story of a home invasion and gave Brown her VCR to cover up the murder before leaving with Santana for lunch and drinks to establish her alibi.

In contrast, defendant testified that Santana suggested that Brown, who was Santana’s boyfriend, get rid of defendant’s husband for defendant permanently. Brown never balked at the idea, and it was defendant who continually expressed reservations and attempted to withdraw from the plan only to have Brown insist that it proceed. Defendant testified that she actually physically tried to stop Brown as he approached the room where defendant’s husband lay sleeping, only to be struck and pushed aside by Brown and held by Santana until the killing was over. Brown took defendant’s wedding rings from the dresser in the bedroom where the murder occurred and the VCR from the living room and told her to ransack the house to make it look like a home invasion. After Brown left, Santana suggested the alibi of lunch and shopping, which defendant agreed to in a daze, and defendant could not eat once she and Santana arrived at the restaurant.

An inmate of the Du Page County jail, who had been assigned to a cell with both Santana and defendant at different times and who was herself awaiting sentencing on charges stemming from the murder of her husband, testified that both Santana and defendant had told her that defendant tried to stop Brown, who pushed defendant away, and was further restrained from so doing by Santana. Other witnesses including a Du Page County Department of Corrections matron, defendant’s sister, neighbor, and minister, each testified to defendant’s sweet and caring, honest, maternal and deeply religious nature. Defendant completed her GED high school degree as well as other classes, including Bible studies, while incarcerated awaiting trial. Defendant expressed remorse for her actions and regret for the suffering she had caused her family, including the sons she shared with her husband, as well as her husband’s family.

However, the court explicitly rejected the defendant’s testimony, including her statements of remorse, as without credibility and a complete contradiction of common sense. It found that the testimony of the Du Page County Department of Corrections inmate was totally incredible and did not consider it whatsoever. It further found that other testimony in mitigation that defendant was sweet and caring, honest, deeply religious, and a concerned mother was contradicted by the degree of her participation in the events leading to her husband’s death. Rather, the court found that the defendant’s conduct in planning and persistently pursuing her husband’s murder over the course of several months without any attempt to stop it, participation in the murder by supplying the murder weapon, drugging her husband, locking up the family dog, providing access to her home, paying for her husband’s death with her wedding rings and Christmas money, and attempting to cover up the murder were premeditated and cold-blooded and, thus, brutal and heinous and indicative of wanton cruelty.

The court found that the statutory factor of exceptionally brutal and heinous conduct indicating wanton cruelty, as well as the victim’s age over 60 years, warranted an extended sentence. The court noted that a natural-life sentence, as requested by the State, was similar to an extended sentence. Either sentence could be imposed based upon a finding of exceptionally brutal and heinous conduct, and a natural-life sentence could also be imposed if any of the factors required for the death penalty were present, which the court had already found existed beyond a reasonable doubt, although mitigation prevented such penalty. Thus, the court found defendant eligible for either a natural-life sentence or an extended sentence and, after considering the factors in mitigation and aggravation, sentenced defendant to 100 years’ imprisonment for first degree murder, 40 years’ imprisonment for solicitation to commit murder, and seven years’ imprisonment for conspiracy to commit murder, with the sentences to run concurrently.

Defendant appeals, asserting that the court erred in sentencing her for the inchoate offenses of solicitation and conspiracy. Defendant also asserts that the court abused its discretion in sentencing her to an extended term of 100 years’ imprisonment. She asserts that the statutory provision allowing an extended sentence for offenses against victims over the age of 60 years was not applicable because her husband’s age was not the motivation in her choice of him as a victim and that her conduct was not brutal or heinous.

We agree, as does the State, that defendant’s sentences for solicitation of murder and conspiracy to commit murder were incorrectly entered. (Ill. Rev. Stat. 1987, ch. 38, par. 8 — 5.) Therefore, defendant’s convictions of those offenses are reversed and those sentences vacated. However, we do not find equal merit in any of defendant’s assertions regarding her sentence for first degree murder.

The proper setting for the formulation of a defendant’s sentence is in the trial court, which has considerable discretion to determine the sentence that is suitable to a defendant’s offense. (People v. La Pointe (1981), 88 Ill. 2d 482, 492.) Thus, a trial judge’s sentencing decision is entitled to great weight and deference. (La Pointe, 88 Ill. 2d at 492-93, citing People v. Perruquet (1977), 68 Ill. 2d 149, 154.) When the sentence imposed is within the limits established by the legislature for the offense, we will not modify it merely because we might have balanced the aggravating and mitigation factors differently. (People v. Jorgensen (1989), 182 Ill. App. 3d 335, 343.) Further, just as with the sentencing decision, the determination of what conduct constitutes brutal and heinous behavior is committed to the discretion of the trial court, and so long as the court does not consider incompetent or unreliable evidence, improper aggravating factors, or ignore pertinent mitigating factors, the court has wide latitude in sentencing a defendant to any term within the statutorily prescribed limits. (People v. Brown (1990), 195 Ill. App. 3d 78, 86-87.) Only if the judgment of the trial court is palpably erroneous or manifestly unjust will an abuse of discretion in sentencing be found. (Brown, 195 Ill. App. 3d at 87.) The infliction of torture or unnecessary pain is not required to find that a crime was brutal or heinous, the second statutory factor that allows the imposition of an extended sentence. (People v. La Pointe (1981), 88 Ill. 2d 482, 501.) Rather, “brutal” has been defined as “grossly ruthless,” “devoid of mercy or compassion [and] cruel and cold-blooded.” (La Pointe, 88 Ill. 2d at 501.) So, too, “heinous” has been defined as “hatefully or shockingly evil[,] grossly bad[,] or enormously and flagrantly criminal.” (La Pointe, 88 Ill. 2d at 501.) Thus, premeditation and cold-bloodedness are sufficient in certain situations to justify an extended sentence. (La Pointe, 88 Ill. 2d at 501; see People v. Bedony (1988), 173 Ill. App. 3d 613 (extended-term sentencing decided on case-by-case basis).) A trial court need find only a single statutory factor in aggravation to impose an extended sentence. Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 5—3.2(b); People v. Jackson (1986), 140 Ill. App. 3d 318, 325.

Defendant contends that the deterrence of crimes against the elderly, who are easily victimized because of their age, is the purpose of an extended sentence for felonies committed against those over 60 years of age. Defendant argues that the victim was not the target of her offense because of his age, but rather because of his relationship to her as her husband. Thus, she asserts that the age of the victim was unrelated to her crime and an extended sentence was inappropriate in this instance. We decline to read the extended-sentence provision so narrowly.

A similar argument to that raised here by defendant was considered and rejected by the Appellate Court for the Fourth District in People v. Huber (1986), 144 Ill. App. 3d 195, 197-98. In Huber, the defendant was convicted of reckless homicide and sentenced to an extended term based on the decedent’s age of five years old. The defendant argued that a reckless homicide, because it was not intentional, could not be deterred by an extended sentence based on the age of the victim. Thus, a sentence to an extended term of imprisonment failed to serve the purpose of the statute. The court rejected that argument. Instead, it relied on the determination of the legislature that crimes against the young were “a greater harm to society than those committed against persons” who were older. It found that, although the age of the victim had no part in the defendant’s decision to undertake his criminal conduct, the presence of that single factor was sufficient to impose an extended sentence. Huber, 144 Ill. App. 3d at 198.

Similarly, we find that the legislative determination that crimes against the elderly are a greater harm to society renders the age of the victim of 67 years sufficient to impose an extended sentence on defendant without regard to the effect, or lack of effect, that the victim’s age may have had on defendant’s decision to commit the offense of which she was convicted.

Having determined that the court’s decision to impose an extended sentence was supported by the presence of at least one statutory factor, we need not address defendant’s claim that her conduct in arranging the contract killing of her husband was not brutal or heinous. (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 5—3.2(b); see Jackson, 140 Ill. App. 3d at 325.) However, in this instance we note that the court not only explicitly rejected defendant’s evidence in mitigation, including her own testimony and statements of remorse, as incredible, but detailed its findings in aggravation by listing each instance of premeditated and cold-blooded conduct undertaken by defendant in the course of planning and executing the plan to murder her husband. The trial court need not have accepted defendant’s exculpatory version of events if it found such story to be improbable. (See People v. Freeman (1988), 167 Ill. App. 3d 740, 744.) Such determination of the credibility of the witnesses and weight to be given their testimony was well within the power of the court as trier of fact (see People v. Ellis (1978), 74 Ill. 2d 489, 496) and is entitled to great weight. (Freeman, 167 Ill. App. 3d at 744.) Thus, we cannot say that the court abused its discretion in finding that defendant’s conduct in procuring the contract murder of her husband, which defendant engineered and in which she participated, was brutal and heinous indicating wanton cruelty.

Defendant’s sentence of 100 years’ imprisonment on her conviction of murder is affirmed. The convictions of conspiracy to commit murder and solicitation of murder are reversed, and those sentences are vacated.

Affirmed in part; reversed and sentences vacated in part.

GEIGER and McLAREN, JJ., concur.


author: JUSTICE McLAREN

text:
    TRANS WORLD AIRLINES, INC., Plaintiff and Counterdefendant-Appellee, v. MARTIN AUTOMATIC, INC., Defendant and Counterplaintiff-Appellant.
    Second District
    No. 2—90—1108
    Opinion filed July 12, 1991.

      Daniel S. Goldman, of Jenner & Block, of Chicago (Joel T. Pelz, of counsel), for appellant.
    Richard K. Van Evera, of Barrick, Switzer, Long, Balsley & Van Evera, of Rockford, and Alan E. Lapidus, of Vedder, Price, Kaufman & Kammholz, of Chicago (Diane M. Kehl, of counsel), for appellee.
   JUSTICE McLAREN

delivered the opinion of the court:

Defendant/counterplaintiff, Martin Automatic, Inc. (Martin), appeals from the trial court’s dismissal of Martin’s counterclaim and first amended counterclaim and the court’s denial of Martin’s motion to file a second amended counterclaim. We affirm.

In March 1984, plaintiff, Trans World Airlines, Inc. (TWA), filed a one-count complaint against Martin, seeking payment of approximately $50,500 plus interest and attorney fees for travel expenses incurred but unpaid by Martin. In May, Martin filed a counterclaim with one count sounding in breach of contract and three counts sounding in tort. The tort counts were dismissed in September 1984. Martin filed its first amended counterclaim in July 1987, alleging one count of breach of contract and one count of tortious interference. The tort count was dismissed in November 1987. Martin moved in March 1990 for leave to file a second amended counterclaim; this motion was denied. TWA and Martin entered a settlement agreement regarding TWA’s complaint and Martin’s breach of contract counterclaim; the claims were dismissed, and a final judgment was entered in September 1990. This appeal, concerning only the dismissed tort counts and denial of leave to file a second amended counterclaim, followed.

Martin first contends that the court erred in dismissing the tort counts of its original counterclaim. These counts alleged tortious interference with employment contracts (count II), tortious interference with business relationships and economic expectations (count III), and tortious inducement of breach of fiduciary duty (count IV). However, counts III and IV are not properly before this court. The filing of an amended complaint waives any objection to the dismissal of an original complaint. (Perkins v. Collette (1989), 179 Ill. App. 3d 852, 856.) By filing its first amended counterclaim without realleging the stricken counts III and IV, Martin waived its objection to the court’s dismissal of those counts. We will, therefore, not consider this contention.

Martin next contends that the court erred in dismissing count II of Martin’s first amended counterclaim. That count was labeled “Tortious Interference” and alleged that TWA interfered with Martin’s employee relationships. The trial court dismissed the count, stating:

“I believe there are conclusions in the counterclaim that would raise this question of intentional tort but I don’t believe there’s [sic] sufficient facts alleged to plead it. There’s no allegation [of] fact in my opinion in Count II that there existed any intentional complicity between TWA and Mr. Martin’s employees to cheat the employer or that TWA ever intentionally solicited the disloyalty of the employees. At best, the only allegation is, I believe, that TWA offered a bonus program in such a manner that it created a climate in which dishonest employees might be able to use it to cheat their employers.”

Martin now argues that count II stated a claim upon which relief could be granted. We disagree.

To state a cause of action, a complaint must contain factual allegations of every fact that must be proved in order for plaintiff to be entitled to a judgment. (Madonna v. Giacobbe (1989), 190 Ill. App. 3d 859, 865.) Even though pleadings are to be liberally construed, any deficiencies in factual averments will not be cured through such construction. (Madonna, 190 Ill. App. 3d at 865.) In count II, Martin alleged that its employees had implied-at-law contracts with Martin and that the employees owed Martin a common-law fiduciary duty and a duty to deal with Martin in a fair and good-faith manner. Martin then alleged that TWA induced Martin employees to breach their duties by marketing its Frequent Flight Bonus program (a program in which TWA customers received free trips and other incentives based upon miles flown on the airline) in such a way as to encourage employees to travel in an inefficient manner so as to accumulate more miles flown and, thus, greater prizes. Specifically, Martin alleged that its internal rules required any mileage credits or prizes received by Martin’s employees for travel on Martin’s business be used only as directed by Martin. Martin charged that TWA encouraged Martin employees to violate this rule by (1) advising participants in the program to use their home addresses for any program purposes; (2) prohibiting the transfer of awards to nonrelatives; (3) prohibiting separate accounts (for business and personal use) for an individual; (4) refusing to allow corporations to enroll in the program; and (5) refusing to inform Martin about mileage credits earned as a result of air travel charged to Martin’s account. The complaint alleged that at least one Martin employee had already failed to comply with the duties alleged to be owed to Martin. Furthermore, Martin alleged that TWA knew, based on its own research, that a significant number of program participants would travel inefficiently in order to increase their own mileage credits.

Martin does not provide us with the elements to be proved in a claim of tortious interference with employee relations. The closest test supplied by Martin is the list of elements to be proved in a suit alleging tortious interference with contractual rights. As Martin’s amended counterclaim in essence argues interference with Martin’s contracts with its employees, we shall use the elements of that tort, which are:

“(1) the existence of a valid, enforceable contract between plaintiff and another; (2) defendant’s awareness of this contractual relationship; (3) intentional and unjustified inducement by defendant of a breach of the contract; (4) a breach of the contract as a result of defendant’s wrongful acts; and (5) resultant damage to plaintiff.” (Madonna, 190 Ill. App. 3d 867-68.)

Martin has successfully alleged the existence of a contract and some damage. However, we conclude that Martin has failed to plead properly the remaining elements of the cause of action. Martin makes the bald assertion that TWA knew that individuals charging tickets were Martin employees and that some of those employees were enrolled in the Frequent Flight Bonus program. However, this allegation is merely a conclusion, not a fact. Martin never alleges how TWA would ever know which people were both Martin employees and program members. Martin employees purchased their airline tickets through a TWA program called the “Universal Air Travel Plan Subscribers Contract.” Through this program, Martin employees could charge air travel on TWA and other airlines. This program was handled separately from the frequent flier program, which does not award points based on the method of payment, but on the passenger’s use of the ticket. Furthermore, no facts were alleged that TWA knew of Martin’s internal rule regarding usage of bonus point awards. Martin has also failed to allege intentional or unjustified inducement by TWA of a breach of contract. Martin alleged that the rules of the program encouraged breaches by its employees. However, Martin merely lists several program rules and makes conclusory remarks as to why TWA promulgated the rules. These rules may also have legitimate business purposes for TWA; the inferences that Martin draws from these allegations are not reasonably drawn. Finally, Martin has failed to allege that any breach by Martin employees was caused by TWA. Martin merely alleged that an employee violated Martin’s internal rules regarding air travel. Martin has not tied the alleged violations of its internal rules to TWA. Because Martin failed to plead facts supporting each element of the cause of action, the trial court did not err in dismissing count II of the first amended counterclaim.

Martin finally alleges that the court erred when it denied Martin’s motion for leave to file a second amended counterclaim. We disagree.

Martin filed this motion on March 15, 1990, approximately six years after the initial complaint was filed and approximately three years after it filed its first amended counterclaim. The second amended counterclaim, if filed, would have alleged commercial bribery pursuant to section 29A — 1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1989, ch. 38, par. 29A — 1) and violation of the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1989, ch. 121V2, par. 261 et seq.). The trial court determined that the second amended complaint alleged “no additional or different facts,” failed to plead the elements of the theories proposed therein, and was “inappropriate” at that stage of the trial (i.e., almost six years after the original complaint and “near the eve of trial”). The court, therefore, denied leave to file.

The decision whether to allow a party to amend its pleadings is within the sound discretion of the trial court; such a decision will not be disturbed without a showing of an abuse of that discretion. (In re Annexation of Certain Territory to the Village of Wadsworth (1987), 154 Ill. App. 3d 54, 58.) The right to amend pleadings is not absolute, and the timeliness of such a request may be considered by the court in its discretion. (Hall v. Northwestern University Medical Clinics (1987), 152 Ill. App. 3d 716, 722.) The court should exercise its power to permit amendment with a view toward allowing a party to present fully his causes of action. (Hall, 152 Ill. App. 3d at 722.) Ordinarily, amendment should not be allowed where the matters asserted were known by the moving party at the time the original pleading was drafted and for which no excuse is offered in explanation of the initial failure. (Hall, 152 Ill. App. 3d at 723.) The test to be applied in determining whether the trial court’s discretion was properly exercised is whether allowance of the amendment furthers the ends of justice. In re Annexation, 154 Ill. App. 3d at 58-59.

In the case before us, Martin attempted to file its second amended counterclaim six years after it first filed a counterclaim. Martin’s allegation of a civil cause of action under the criminal commercial bribery statute, as specious and unsupported as it is, was available to Martin since the inception of this case. Martin has not offered, and cannot offer, any excuse for waiting six years to make this allegation. Additionally, Martin’s excuse for the timing of its consumer fraud allegation is without merit. Martin argues that it could only allege this violation after the General Assembly amended the Act, effective January 1, 1990, to eliminate the requirement that a public injury be pleaded in any case arising under the Act. However, it has long been recognized by Illinois courts that no allegation of public injury was required in actions under the Act. (See, e.g., Duncavage v. Allen (1986), 147 Ill. App. 3d 88, 102.) The one excuse given by Martin for its delay is invalid. In the absence of any valid reasons for delay, we conclude that the court did not abuse its discretion in denying Martin’s motion to file the second amended counterclaim.

For these reasons, the orders of the circuit court of Winnebago County are affirmed.

Affirmed.

DUNN and NICKELS, JJ., concur.


author: PRESIDING JUSTICE LUND

text:
      In re MARRIAGE OF ELEANOR JEAN IRVINE, Petitioner-Appellant, and JOHN E. IRVINE, Respondent-Appellee.
    Fourth District
    No. 4—90—0738
    Opinion filed June 28, 1991.
    Modified on denial of rehearing August 13, 1991.

      Duane D. Young, of Heckenkamp, Simhauser & LaBarre, P.C., of Springfield, for appellant.
    R.P. O’Connell, of Richard P. O’Connell, Ltd., of Quincy, for appellee.
   PRESIDING JUSTICE LUND

delivered the opinion of the court:

This is an appeal from a final order dated October 3, 1990, resolving the issues of attorney fees, rental income, and debts assessed against properties awarded to petitioner Eleanor Jean Irvine pursuant to a judgment of dissolution entered May 3, 1988. Petitioner appeals, contending the trial court erred in (1) denying her rent on the properties which were vacant but utilized by respondent and statutory double rent pursuant to section 9 — 202 of the Forcible Entry and Detainer Act (Detainer Act) (Ill. Rev. Stat. 1989, ch. 110, par. 9 — 202) on properties awarded to her but withheld by respondent; (2) allowing respondent credit for maintenance expenses on properties awarded to her in the May 1988 judgment; (3) denying her certain security deposits collected by respondent; (4) denying her mandatory attorney fees to enforce the judgment under section 508(b) of the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1989, ch. 40, par. 508(b)); and (5) denying her attorney fees pursuant to Illinois Supreme Court Rule 137 (134 Ill. 2d R. 137).

This is the third time issues involved in the dissolution of marriage of the parties have been on appeal before this court. Pursuant to the order of reversal and remandment following the first appeal (In re Marriage of Irvine (1987), 160 Ill. App. 3d 1163 (unpublished order under Supreme Court Rule 23)), the trial court entered judgment on May 3, 1988, dividing the marital property between the parties, which included a substantial number of rental properties. Petitioner appealed this judgment, which was subsequently affirmed by this court on March 9, 1989. In re Marriage of Irvine (1989), 180 Ill. App. 3d 1107 (unpublished order under Supreme Court Rule 23).

During the pendency of that second appeal, petitioner filed a petition for relief in the circuit court, requesting that, absent a stay and a sufficient bond, she be granted the immediate access and right to the income from the properties awarded her in the final judgment of May 3,1988. On July 19,1988, the trial court entered an order stating:

“Petitioner shall be entitled to all rents on the properties awarded her, and responsible for all debts ordered paid by her, from the date of the Judgment of Dissolution (May 3, 1988). Respondent shall not be required to convey his interest in such properties pending the appeal, and neither party shall contract to sell any property during the appeal. The parties shall prepare a schedule showing the rental and debt payments covered by this order. Each party shall reimburse the other for collection of the other’s rents, or the payment of debts they should have paid.”

Respondent did not file a petition for stay of the order of the trial court pursuant to Rule 305(b) (134 Ill. 2d R. 305(b)), and he neither submitted to petitioner the rents collected nor allowed her to collect them directly.

In mid-1989, following this court’s affirmance of the May 3, 1988, judgment, the parties executed and delivered deeds partitioning the real estate in accordance with the judgment and petitioner received possession of her properties and began collecting current rents and paying current debts. She did not, however, receive the rents respondent had collected until that date.

On July 11, 1989, petitioner filed a petition for judgment for the rents collected and retained by respondent for the period from approximately May 1988 to May 1989 in the sum of $24,737. Respondent’s response dated December 8, 1989, asserted that petitioner owed respondent $6,650 for the same period. Further discovery was had and additional petitions and responses for varying amounts due were filed by both parties. The final order of October 3, 1990, found $12,064.67 due to petitioner, net of a $3,760.92 credit allowed respondent for maintenance performed on petitioner’s properties during the period he collected and retained rental sums due her.

Petitioner first argues that she is entitled to double rents for the approximately 13-month period respondent withheld possession of the properties awarded to her in the dissolution judgment. Petitioner points to section 9 — 202 of the Detainer Act, which provides as follows:

“Wilfully holding over. If any tenant or any person who is in or comes into possession of any lands *** wilfully holds over any lands *** after the expiration of his or her term or terms, and after demand made in writing, for the possession thereof *** the person so holding over, shall, for the time the landlord or rightful owner is so kept out of possession, pay to the person so kept out of possession *** at the rate of double the yearly value of the lands *** so detained to be recovered by a civil action.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 110, par. 9 — 202.)

Although historically actions in forcible entry and detainer have arisen in the context of landlord-tenant relations, we see nothing within the cited statute which would preclude its application in a dissolution proceeding if the facts and circumstances of the case comport with the requirements of the statute. In cases where the marital estate is comprised of partitionable rental properties distributed between the parties, it is not inappropriate to provide an incentive to a recalcitrant spouse to promptly comply with a court order of transfer of title or possession within a reasonable time.

It has, however, been consistently held that an action to recover the double value of rent is in the nature of a forfeiture and is highly penal, and that an action to recover must be clearly within the statute. (Chapman v. Wright (1858), 20 Ill. 120; Stuart v. Hamilton (1872), 66 Ill. 253; Stride v. 120 West Madison Building Corp. (1985), 132 Ill. App. 3d 601, 477 N.E.2d 1318.) In reviewing the facts and circumstances of the parties before this court, it is indisputable that the judgment awarded petitioner various rental properties as her sole and separate property and, pursuant to that judgment, she became the rightful owner. There is also no dispute that respondent wilfully retained respondent’s properties in disregard of petitioner’s written demand for possession of the keys and rental income from the properties and, instead, instructed tenants in those properties to pay rent only to him. However, the court’s order of July 1988 for relief pending appeal allowed respondent to retain his “interest in such properties pending the appeal” and directed him to account for income received and debts paid. This order lacked validity to deny petitioner the right to possession she had been awarded by the judgment because no stay of that judgment had issued. However, the ambiguity in the language of the order created the appearance of a stay of the judgment and an implication that respondent’s retained “interest” and duty to account included a right to retain possession and the status quo as to the vacant properties, as well as legal title to the properties involved pending the appeal. Therefore, as an uncertainty existed regarding the right to present possession of the properties based on the implications of the July 1988 order, we conclude that the trial court’s denial of rents on the vacant properties utilized by respondent, and double rents for wilfully holding over pursuant to section 9 — 202 was proper. (See, e.g., Stride, 132 Ill. App. 3d 601, 477 N.E.2d 1318.) Our conclusion in this case, however, does not preclude application of the statutory remedy provided for in section 9 — 202 of the Detainer Act in a dissolution proceeding where different facts can support its imposition.

Petitioner next argues the court erred in allowing respondent a $3,760.92 credit for maintenance and repairs to her properties. The evidence supporting this sum was a series of monthly summaries listing dates, labor hours expended, and job location, prepared by respondent’s bookkeeper solely for purposes of the dissolution proceedings. On several of the monthly summaries, all of the entries were changed from “1988” to “1989.” The bookkeeper stated she prepared the monthly summaries from data sheets completed by individual employees but she had no personal knowledge that any work was either required or performed. The records supporting the summaries were not produced at trial, and the bookkeeper testified that they were not available. The summary documentation for the labor costs covered only 7 of the 12 months for which the maintenance credit was claimed. The remaining five months are represented by an estimate based on average labor costs, as data for those months was destroyed by a fire in respondent’s office.

At trial, respondent was required to prove by a preponderance of the evidence expenses chargeable against properties awarded petitioner. (See Sayad v. Sayad (1960), 27 Ill. App. 2d 250, 169 N.E.2d 585 (abstract of opinion) (slip op. at 6); see also Baker v. Baker (1955), 6 Ill. App. 2d 557, 128 N.E.2d 616.) The evidence of record is wholly lacking in proof that the labor hours allegedly expended by respondent’s employees were necessary, reasonable, or actually performed, and provides an entirely insufficient basis for proof of debts attributable to these properties. Moreover, the July 1988 order stated petitioner was responsible “for all debts ordered paid by her,” and there was no evidence that she ordered any of these expenses paid. Therefore, we reverse the trial court’s award to respondent of an offsetting credit of $3,760.92 as an abuse of discretion.

Petitioner next claims that the court erred in denying her a $550 security deposit collected by respondent for rental of the marital home from September 1985 to September 1986, as well as a security deposit of $105 refunded by respondent to a tenant in one of petitioner’s properties during the period he retained possession. The security deposit on the marital home was retained by respondent pursuant to a lease which expired prior to the court’s initial award of the home to petitioner in February 1987. Inasmuch as petitioner was entitled to neither rentals nor possession prior to that date, and petitioner herself entered into a new lease with different tenants in November or December 1986, it cannot be said the court’s decision denying petitioner the $550 security deposit was against the manifest weight of the evidence. However, with regard to the $105 security deposit refunded by respondent on one of petitioner’s properties, petitioner was entitled to this sum pursuant to the order of July 19, 1988. Respondent was ordered to reimburse petitioner for collection of her rents, and he was precluded from refunding this security deposit without petitioner’s approval. Therefore, the court erred in denying petitioner reimbursement for the security deposit of $105.

Petitioner next argues that the court improperly denied her mandatory attorney fees under section 508(b) of the Act for enforcement of the May 3, 1988, judgment because respondent’s failure to turn over rents collected was without cause or justification. Petitioner submitted affidavits as to fees and expenses incurred since this court’s affirmance of that judgment in the sum of $8,424.33.

A party who has been forced to resort to the judicial process to secure compliance with the terms of an order or judgment is entitled to her reasonable attorney fees even absent a showing of inability to pay. (In re Marriage of Moriarty (1985), 132 Ill. App. 3d 895, 478 N.E.2d 537; In re Robertson (1986), 151 Ill. App. 3d 214, 502 N.E.2d 1279.) The provision for mandatory award of attorney fees, section 508(b) of the Act, was broadened in 1988 to include enforcement of all orders and judgments and not merely child support orders. (See Ill. Ann. Stat., ch. 40, par. 508(b), Supplement to Historical and Practice Notes, at 179 (Smith-Hurd Supp. 1991).) Under section 508(b) of the Act, the trial court has no discretion as to whether to award reasonable attorney fees and costs incurred in enforcement of its orders; its only discretion is to decide whether the failure to pay was without cause or justification. If the trial court so finds, the award of reasonable attorney fees and costs is mandatory. Elliott v. Elliott (1985), 137 Ill. App. 3d 277, 280, 484 N.E.2d 482, 485.

The judgment of May 3, 1988, awarded petitioner the rental properties “as her sole and separate property” and the order of July 19, 1988, entitled her to current rents on those properties as well as reimbursement of sums respondent had collected on her behalf. Petitioner received none of the proceeds respondent had collected from these properties for the approximately 13-month period, May 1988 to May 1989, until the court’s final order of October 3, 1990. Respondent therefore failed to pay the sums due under the court’s May and July 1988 orders. It therefore becomes necessary to determine whether respondent’s failure to pay was without cause or justification.

Respondent argues that he was not required to pay over any sums to petitioner until after this court’s disposition of her appeal. This view is clearly without merit. The judgment granted petitioner all rights in and to the properties awarded, and the July 19, 1988, order rescinded only petitioner’s right to legal title during the pendency of the appeal. However, accepting, arguendo, respondent’s interpretation of those orders, respondent failed to promptly account for and pay over the sums he had collected, and which he interprets as then coming due, when this court affirmed the judgment on March 9, 1989. As direct collection of the rents had been denied her, petitioner filed a petition for judgment, relying on data obtained from respondent, who had filed no personal income tax returns since 1981 and had sole access to the records from which to compute rental sums due her. His subsequent accounting asserted that petitioner owed him more than $6,600 over the same period. He demanded credits for expenditures to which he clearly was not entitled, such as monthly mortgage payments made prior to the date the properties were awarded petitioner. He failed to pay the 1987 prejudgment taxes on properties awarded petitioner, and allowed those properties to be later purchased at a tax sale by his sons by a prior marriage. Respondent withheld rental income due petitioner pursuant to the orders of May 3, 1988, and July 19, 1988, and failed to promptly pay over and account following this court’s affirmance of the judgment, and petitioner was required to resort to judicial process to enforce compliance.

We find that respondent’s failure to comply with the orders of May 3, 1988, and July 19, 1988, was without cause or justification and the court was without discretion to deny mandatory fees pursuant to section 508(b) of the Act. We therefore reverse and remand for a finding by the trial court as to reasonable attorney fees incurred in enforcement of the judgment.

Petitioner next argues that the court erred in denying her attorney fees pursuant to Supreme Court Rule 137. Respondent filed two verified pleadings making claim for a $5,500 debt owed by petitioner which had been satisfied two years previously. The trial court denied petitioner’s request for attorney fees under Supreme Court Rule 137, finding that Rule 137 imposed no absolute liability for mistakes, that respondent’s error in alleging nonpayment of the $5,500 debt was unintentional, and that the petition was not filed for an improper purpose.

Supreme Court Rule 137 preempts all matters sought to be covered by section 2 — 611 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 611), which contains substantially similar language. (Yassin v. Certified Grocers of Illinois, Inc. (1990), 133 Ill. 2d 458, 551 N.E.2d 1319.) The primary difference between the two provisions is that under Rule 137 the imposition of sanctions is discretionary rather than mandatory as under section 2 — 611. Case law developed under section 2 — 611 of the Code can therefore be applied to interpret identical provisions of Rule 137.

Trial court decisions on whether to impose sanctions are entitled to considerable deference upon review and will not be reversed on appeal absent an abuse of discretion. Yassin, 133 Ill. 2d at 467, 551 N.E.2d at 1323.

Rule 137 requires that all papers filed in court shall be signed by an attorney or party and such signing constitutes a certification that to the best of the signer’s knowledge, information, and belief, formed after reasonable inquiry, it is well grounded in law and fact. Upon a violation of Rule 137, the court, on its own discretion, may impose on the attorney, represented party, or both, an order to pay to the other party the amount of reasonable attorney fees incurred because of the filing of the document or paper. 134 Ill. 2d R. 137.

Respondent claims the trial court properly denied the request for sanctions under Rule 137 because the filed pleadings resulted from honest error. At the June 7, 1990, hearing for closing arguments on the accounting of sums due petitioner, and previous to the filing of any petitions, respondent first orally made demand for the $5,500 credit based on a debt first allocated to petitioner in 1986. Petitioner’s counsel informed respondent that the debt had long since been satisfied and demanded that if he persisted in this claim, he do so by verified pleading. Respondent was thereby put on notice that his claim would be contested, and he was provided an opportunity for inquiry as to the validity of this claim prior to pleading. He nevertheless filed two false pleadings as well as a motion for corrections alleging nonpayment of the $5,500 debt and made demand for payment plus statutory interest.

Any reasonable inquiry would have revealed the falsity of the allegations made at the June 7 hearing prior to respondent’s filing of verified pleadings: the satisfaction of the $5,500 debt was evidenced by a letter from respondent’s counsel dated June 8, 1987, together with copies of checks forwarded to petitioner from which the $5,500 had been deducted.

The trial court apparently imposed a good-faith standard in finding respondent not liable for mistakes in the absence of improper purpose. However, neither a test of good faith nor respondent’s concession that he made a mistake comports with the affirmative obligation of Rule 137 to make a reasonable inquiry prior to the filing of pleadings. “A court must use an objective standard to determine whether a particular inquiry was reasonable, based upon the circumstances that existed at the time the pleading was filed.” (Cmarko v. Fisher (1990), 208 Ill. App. 3d 440, 445, 567 N.E.2d 352, 355.) No inquiry at all was conducted here. We conclude that the trial court abused its discretion in denying appropriate sanctions under Rule 137 as no reasonable inquiry was made by respondent as to the validity of his claim for $5,500. Accordingly, we reverse and remand to the trial court for imposition against respondent of an appropriate sanction for violation of Rule 137.

Affirmed in part, reversed in part and remanded for further action consistent with this opinion.

Affirmed in part; reversed in part and remanded.

STEIGMANN and KNECHT, JJ., concur.


text:
    THE OAKLAND NATIONAL BANK, Plaintiff-Appellee, v. EDWIN E. TOMEI, Defendant-Appellant.—THE OAKLAND NATIONAL BANK, Plaintiff-Appellee, v. DAVID E. SUHRENBROCK, Defendant-Appellant.
    Fourth District
    Nos. 4—90—0871, 4—90—0872 cons.
    Opinion filed June 28, 1991.

      Shari D. Goggin-Ward, of Kirtley-Pavia-Marsh, P.C., of Urbana, for appellants.
    Jeffrey B. Wampler, of Erwin, Martinkus, Cole & Ansel, Ltd., of Champaign, for appellee.
   PRESIDING JUSTICE LUND

delivered the opinion of the court:

Defendants Edwin E. Tomei and David E. Suhrenbrock appeal from the order of the circuit court of Coles County denying their motion to vacate judgments by confession entered against them on July 12, 1990, in the amounts of $25,000 and $10,000, respectively (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1401). We reverse.

Plaintiff Oakland National Bank (Bank) obtained judgments by confession against defendants based on guaranties they purportedly signed for loans made by the Bank to Donald Nappe.

Each of the guaranties specifies the dollar limits of the guarantor’s liability and refers to separate and numbered notes signed solely by Donald Nappe, as maker. Only the notes contain a warrant of attorney provision, authorizing confession of judgment against the “borrower” and in favor of the Bank.

Judgments by confession are viewed circumspectly; the general rule constraining the power to confess judgment is that such authority must be clearly given and strictly followed, and a judgment entered in violation of this rule is void. (Wells v. George W. Durst Chevrolet Co. (1930), 341 Ill. 108, 173 N.E.2d 92; Grundy County National Bank v. Westfall (1971), 49 Ill. 2d 498, 275 N.E.2d 374.) The policy underlying this rule of strict construction against the party in whose favor the power operates is based on the severity of the summary proceeding itself. The party granting such authority deprives himself of all defenses and delay of execution and places his cause in the hands of a hostile defender. (Annot., 5 A.L.R.3d 429 (1966).) Therefore, courts are unanimous in holding that judgment may not be confessed against one who did not himself sign the warrant of attorney, whether he is assignee, guarantor, or another party obligating himself for the performance of the primary contract. See, e.g., Wolf v. Gaines (1961), 33 Ill. App. 2d 428, 179 N.E.2d 466; Liberty National Bank v. Vance (1954), 3 Ill. App. 2d 1, 120 N.E.2d 349; Sharpe v. Second Baptist Church (1934), 274 Ill. App. 374; Doss v. Evans (1933), 270 Ill. App. 55.

The Bank nevertheless argues that even though defendants did not execute the notes, the guaranties they did execute, by referring to the note number and maker, incorporated by reference the entire note and all its terms and conditions, including the provision for confession of judgment and warrant of attorney. The Bank alleges that the power conferring a right to confess judgment may be incorporated by reference, citing a section from a legal encyclopedia (23 Ill. L. & Prac. Judgments §54, at 256 & nn.55, 56 (1979).) However, nothing in that section provides for incorporation by reference of a warrant of attorney that has not been executed by the party against whom judgment is to be confessed. That section provides only that the warrant may be attached to, or incorporated in, the primary contract. If the warrant of attorney is appended to the obligation to be confessed, both the warrant and the obligation must be signed by the same person. Wolf, 33 Ill. App. 2d at 430, 179 N.E.2d at 468.

The Bank also cites First National Bank v. Seass (1910), 158 Ill. App. 122, and First National Bank v. Husted (1965), 57 Ill. App. 2d 227, 205 N.E.2d 780, for its claim that provision for confession of judgment may be incorporated by reference. In Seass, the same parties had executed both a promissory note and a warrant of attorney to confess judgment which made no reference to the note. The court construed both documents as one instrument, finding that the warrant of attorney necessarily applied to the note. Seass, 158 Ill. App. at 124.

In Husted, the party against whom judgment was confessed had signed a retail installment contract on its face, and which contained language that incorporated by reference all the conditions on the reverse. The reverse contained the warrant of attorney to confess judgment. The court upheld the judgment, finding specific language on the face of the contract incorporated by reference the authority to confess judgment contained on the reverse. Husted, 57 Ill. App. 2d at 230, 205 N.E.2d at 782.

In Seass and Husted, the parties against whom judgments were confessed were both the debtors and the signers of documents granting a warrant of attorney to confess judgment against them. The defendants in this case have not executed any of the notes or any other document authorizing an attorney to confess judgment against them; therefore, the notes could not be incorporated by reference into the guaranties they did sign.

Accordingly, the order of the circuit court is reversed and this cause is remanded with instructions to vacate the judgment against defendants.

Reversed and remanded.

SPITZ and McCULLOUGH, JJ., concur.


author: JUSTICE GREEN

text:
    DONALD LEE KREN, Plaintiff-Appellant, v. CIVIL SERVICE COMMISSION OF THE CITY OF SPRINGFIELD, Defendant-Appellee.
    Fourth District
    No. 4—90—0698
    Opinion filed June 27, 1991.

      Donald Kren, of Springfield, appellant pro se.

    James K. Zerkle, Corporation Counsel, of Springfield (John P. Schmit, Assistant Corporation Counsel, of counsel), for appellee.
   JUSTICE GREEN

delivered the opinion of the court:

On October 26, 1989, plaintiff Donald Lee Kren filed a complaint in the circuit court of Sangamon County directed against defendant Springfield Civil Service Commission (Commission). An amended three-count complaint was subsequently filed. At all times, one of the counts sought administrative review (Ill. Rev. Stat. 1989, ch. 110, par. 3 — 102) of the ultimate decision of the Commission, i.e., that plaintiff had failed a civil service examination for promotion to the position of fire battalion chief.

The Commission filed a motion to dismiss each count of the amended complaint, and plaintiff filed a motion for summary judgment. At a hearing, the circuit court treated the Commission’s motion to dismiss as a motion for summary judgment. On September 10, 1990, the circuit court entered an order denying plaintiff’s motion for summary judgment and granting a summary judgment to the Commission as to every count, including that for administrative review. Plaintiff has appealed the ruling as to count I, which sought a writ of mandamus to require the Commission to take certain action in regard to hearing objections plaintiff had made in regard to the civil service examination involved; and count II, which sought administrative review.

Because the Illinois Municipal Code (Ill. Rev. Stat. 1989, ch. 24, par. 10 — 1—45) expressly provides that judicial review of the Commission’s final decisions is to be taken pursuant to the Administrative Review Law (Ill. Rev. Stat. 1989, ch. 110, par. 3 — 101 et seq.), the use of “preexisting methods to secure judicial review[, including mandamus,] is prohibited, and the review law itself is the exclusive means of review.” (Blagoue v. Edgar (1990), 196 Ill. App. 3d 92, 95, 553 N.E.2d 90, 92.) Accordingly, the circuit court did not err in entering judgment for the Commission in regard to the request for relief in mandamus.

The judgment against plaintiff on the administrative review count presents more difficult questions. The Commission maintains plaintiff’s request for judicial review in the circuit court was untimely because plaintiff did not make a timely request of the Commission for a final decision pursuant to Commission rules. Plaintiff’s complaint concerning the action of the Commission in failing him on his examination is not articulated with clarity. He proceeds pro se before us and apparently drafted the documents he presented to the Commission. He did have counsel before the circuit court. The substance of his complaint is that the answers to the examination questions deemed appropriate by the Commission were, in fact, not correct answers.

Analysis of the Commission rules, which plaintiff was required to follow in seeking review of the Commission’s grading of his test, begins with Civil Service Commission Rule 40 (Rule 40), which stated:

“APPEALS AND CORRECTIONS OF ELIGIBILITY RATINGS
Candidates must appeal to the Commission in writing within five [5] days of receipt of placement results to seek any corrections thereof. The Commission shall examine the candidate’s appeal at its next regular meeting. If manifest error is discovered in rating, scoring, or computation of results, the Commission shall make the required correction and place the name of the person or persons in the corrected position on the list of eligibles.” (Emphasis added.) (Rule 40, City of Springfield, Illinois, Rules of the Civil Service Commission, at 17.)

The question presented by the operation of this rule in this case is when plaintiff became in “receipt of placement results” in order for the five-day period of Rule 40 to commence running.

The record reveals that on July 15, 1988, plaintiff took the civil service examination for placement on the eligibility list for a promotion to fire battalion chief. Then, on July 25, 1988, the Commission sent notice to plaintiff he failed the examination, and plaintiff received this notice on August 1, 1988. On September 6, 1988, plaintiff received a second notice informing him that his name would not be placed on the eligibility list for promotion to fire battalion chief. On September 9, 1988, plaintiff appealed to the Commission pursuant to Rule 40, objecting to the certification of the eligibility list on grounds that the examination was not properly scored.

On September 16, 1988, plaintiff requested the Commission to grant him a hearing regarding his appeal and, on October 3, 1988, his request was denied. On October 10, 1988, the Commission notified plaintiff that the hearing was denied. On October 26, 1988, plaintiff filed the instant complaint, taking the position that he received “placement results” on September 6, 1988 — when he received notice his name would not be placed on the eligibility list for promotion to battalion chief — and that the five-day period of Rule 40 commenced running then, making his September 9 appeal to the Commission timely. The Commission maintains plaintiff received “placement results” on July 25, 1988, when he was sent notice that he had failed the examination.

Attached to the Commission’s motion to dismiss the amended complaint was the affidavit of the civil service chief examiner employed at the time plaintiff took the examination. The affidavit stated, among other things:

(1) “The purpose and intent of an appeal under Rule No. 40, as consistently interpreted by the Civil Service Commission, is to correct any manifest errors in rating, scoring, or computation of results. It is not the intent or purpose of this Rule to contest the content or subject matter of the test, that is the purpose of Rule No. 34. Rule No. 40 simply allows for corrections of mathematical errors in calculating the score. It is simply a ministerial act and, therefore, no evidentiary hearing is provided under this Rule”; and
(2) “Rule No. 40 also provides that the candidates must file their appeal with the Commission in writing within (5) days of receipt of placement results in order to seek correction.”

The chief examiner’s affidavit asserted that plaintiff was sent his “placement results” on July 25, 1988, when he was sent notice he failed the exam, and he was aware of his “placement results” at least by August 1, 1988. Therefore, plaintiff’s appeal filed pursuant to Rule 40 on September 9, 1990, was not within the prescribed five-day period. During the discovery deposition of the chief examiner, she stated plaintiff’s claim could only be properly brought under Rule 34, and not Rule 40. Rule 34 provides as follows:

“PROTESTS OF EXAMINATIONS BY APPLICANTS
An applicant wishing to protest an examination must within five (5) days (excluding weekends and holidays) after such test file a written Notice of Protest with the Commission.
***
At the next regular meeting after receipt of the Notice of Protest, the Commission shall consider the petition, hear any evidence the petitioner may wish to present, and consider any facts or statements of the Chief Examiner.” Rule 34, City of Springfield, Illinois, Rules of the Civil Service Commission, at 14.

The thrust of plaintiff’s claim was that he had made various answers which were correct, and the answers deemed by the Commission to be correct were not. Plaintiff would have had difficulty in forming an opinion in this respect within five days after the examination and filing a written notice of protest within that time as required by Rule 34 when he was not informed of his failure of the test until six days after the test. Clearly, Rule 34 was not adequate to give plaintiff sufficient opportunity for review.

Regardless of the existence or meaning of Rule 34, a reasonable argument can be made that when applicants, such as plaintiff, fail an examination given by the Commission, Rule 40 requires any appeal be filed within five days after that notice. However, Rule 39 states:

“NOTICE OF RESULTS OF ELIGIBILITY FOR APPOINTMENT
All persons competing for placement on any eligibility list shall receive notice of their final position thereon, or of their failure to attain placement ***.” (Rule 39, City of Springfield, Illinois, Rules of the Civil Service Commission, at 4.)

The notice required by Rule 39 appears to be notice of “placement results” referred to in Rule 40, which follows Rule 39 in numeral listing. Rule 39 requires notice not only to those on the listing but those who did not attain placement on the list. Plaintiff, who failed the examination, was given this notice. Plaintiff or other applicants could reasonably assume that the Rule 39 notice was the triggering instrument for the five-day period of Rule 40. We hold it was and that plaintiff’s appeal was filed within the time span of Rule 40.

Commission Rule 33 allows a candidate a right to inspect his test “except where the validity of the test would be jeopardized,” and to question “the validity of his grade,” any error “in scoring” and other “relevant” and “material” matters. Questions raised are to be noted by the chief examiner and certified to the Commission. Plaintiff alleges he followed this route, raising questions to the chief examiner, who failed to certify them to the Commission. The Commission contends that appeal from this ruling should be under Rule 34, but for an applicant to proceed in this manner — and get a ruling before the end of the five-day period from the date of the examination, so as to appeal within the time frame required by Rule 34 — would appear to be almost impossible.

The instant “summary judgment” was entered on a motion of the Commission to dismiss. Plaintiff had a right to a hearing under Rule 40, which he was not given. We must reverse the order of the circuit court granting summary judgment and remand to the Commission with directions to hold such a hearing. We recognize that each applicant who fails an examination cannot appeal under Rule 40 and, if dissatisfied with the result, take judicial review and expect the court to regrade the examination. However, an applicant is entitled to some sort of a Rule 40 hearing to determine whether (1) the examination and scoring were done fairly, and/or (2) the answers deemed appropriate by the examiner are clearly out of line.

We so order.

Reversed and remanded with directions.

LUND, P.J., and McCULLOUGH, J., concur.


author: JUSTICE BARRY

text:
      In re MARRIAGE OF NORMAND SIMARD, Petitioner-Appellee, and DORIS L. SIMARD, Respondent-Appellant.
    Third District
    No. 3—90—0672
    Opinion filed July 2, 1991.
    Rehearing denied August 13, 1991.

      Paul A. Osborn and Daniel C. Hawkins, both of Ward, Murray, Pace & Johnson, of Sterling, for appellant.
    Walter C. Kilgus, of Nelson, Kilgus, Richey & Hauptman, of Morrison, for appellee.
   JUSTICE BARRY

delivered the opinion of the court:

The petitioner husband, Normand Simard, and the respondent wife, Doris L. Simard, entered into a property settlement agreement under which Doris was to receive $140,000 from the sale of certain stock. After the stock sold for less than expected, Normand filed a motion to modify the agreement. The trial court subsequently reduced Doris’ share of the stock proceeds to $95,780. She appeals.

The record shows that Doris and Normand were married for 31 years. A judgment for the dissolution of their marriage, incorporating their property settlement agreement, was entered on February 28, 1990. In pertinent part, the agreement provided the following:

“Husband is awarded all interest in the Stanwich Industries, Inc. stock, now known as DeVlieg-Bullard, Inc., in consideration for said award, Husband shall pay to Wife, $140,000.00 in seven annual installments of $20,000.00 each commencing January 1, 1991 and continuing each year thereafter on January 1 until paid in full. Said payment is conditioned upon the sale, transfer, conveyance or assignment of said Devlieg [sic] Bullard, Inc. stock prior to January 1, 1991. If, upon January 1, 1991, there has been no sale, transfer, conveyance or assignment of said stock, the Wife, in her sole discretion, may elect to receive $25,000.00, payable within 30 days of the receipt of Husband of written notice of her election, in total satisfaction of all obligations with respect to said stock; alternatively, Wife may elect to forbear in the collection of that year’s annual payment of $20,000.00 and retain the right to collect the total sum of $140,000.00 with payment to commence on January 1, 1992. The Court will reserve jurisdiction to reevaluate the disposition of the Stanwich stock and payments of the $140,000.00 to be made to the Wife until January 1, 1992 with said reevaluation to be made only in the event that there has been no sale, transfer, conveyance or assignment prior to said date.”

On March 22, 1990, Normand filed a motion for reconsideration and rehearing. In his motion, he alleged that his payment to Doris of the $140,000 was conditioned upon the sale of the stock at a price of $11, $12, or $13 per share. With a stock distribution to Normand of 41,250 shares, it was anticipated that an after-tax net income of at least $305,000 would be generated, from which the payments to Doris would be made. The stock actually sold for $7 per share. Normand received approximately $191,560 after taxes. He requested that the court reevaluate the payments to be made to Doris based on the actual sale price.

In her response to Normand’s motion, Doris alleged that the court had reserved jurisdiction for reevaluation only “in the event that there has been no sale, transfer, conveyance, or assignment [prior to January 1, 1992].” Among other things, Doris alleged that the parties’ agreement was not unconscionable, and that, in his motion, Normand had failed to assert that new facts unknown to the parties at the time of the agreement or judgment made the judgment unconscionable.

In his amended motion for reconsideration and rehearing, Normand added that the sale of the stock at $7 per share was a fact unknown to the parties at the time of their agreement or to the court at the time of the entry of its order, which made the judgment as entered unconscionable.

FoHowing a hearing on Normand’s motion, the trial court found that it had jurisdiction over the subject matter and parties and ordered that the previous judgment for dissolution of marriage be modified with respect to the amount Normand would pay Doris for the stock. Normand was directed to pay Doris one half of the net value of the stock ($95,780) in seven equal annual installments of $13,682.86 without interest. Following the trial court’s ruling, Doris’ attorney requested a reopening of the case for an evidentiary hearing on all aspects of the case. The trial court denied the request.

Doris subsequently filed a motion to vacate or modify and a memorandum in support of this motion. She once again asserted that the trial court lacked jurisdiction to modify its original judgment and therefore requested that the original judgment be reinstated. In the alternative, she requested that the case be reopened for a full hearing on the merits. Normand filed a brief in opposition to Doris’ motion.

In its order denying Doris’ motion, the trial court found that it had jurisdiction and that the parties had agreed that the motions could be considered by the court based upon the briefs submitted by the parties’ respective attorneys.

Doris initially argues on appeal that the trial court abused its discretion in granting Normand’s motion for reconsideration and rehearing. She contends that because the original judgment contained language purporting to limit the circumstances under which the trial court could modify the parties' agreement, the court was precluded from entertaining Normand’s motion for rehearing. We disagree.

While we are aware that the parties’ agreement appeared to limit the circumstances under which the trial court could modify the portion pertaining to the stock, that agreement could not bar a party’s right to seek a rehearing pursuant to section 2 — 1203 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1203). Section 2 — 1203 allows any party, within 30 days after the entry of judgment, to file a motion for a rehearing, retrial, or modification of the judgment, to vacate the judgment, or for other relief. Such a timely filed motion stays enforcement of the judgment. Until the last timely filed post-trial motion has been passed upon, the trial court retains complete jurisdiction over the final order under attack to rectify any errors that may have been brought to its attention. (City of De Kalb v. Anderson (1974), 22 Ill. App. 3d 40, 316 N.E.2d 653.) We therefore hold that the parties cannot agree to usurp the trial court’s function of reviewing timely filed post-trial motions. The trial court thus did not abuse its discretion in entertaining Normand’s timely filed motion for reconsideration and rehearing.

Doris also contends that the trial court could not properly modify the parties’ agreement unless pursuant to section 502 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1989, ch. 40, par. 502) it found the agreement unconscionable. We disagree.

The above-cited statute was enacted to encourage the parties to reach an amicable disposition of the financial and other incidents of their marriage. The statute specifically states that the terms of the parties’ agreement are binding upon the court unless the court finds that the agreement is unconscionable. However, this section of the statute does not eliminate many of the traditional grounds for setting aside settlement agreements. See Ill. Ann. Stat., ch. 40, par. 502, Supplement to Historical & Practice Notes, at 46 (Smith-Hurd Supp. 1990).

In the instant case, the trial court determined that the parties had never agreed upon the disposition of the stock in the event that it sold at a lower price than anticipated. When the trial judge ruled on Normand’s motion, he specifically stated that his recollection was that at the time of the original settlement agreement the parties proceeded as if the sale of stock would occur at at least $11 per share or the stock would not sell at all. Therefore, the sale of the stock at a lesser figure was never contemplated by the parties. Accordingly, it was within the trial court’s discretion to set aside the parties’ original agreement on this basis.

Finally, Doris contends that the trial court abused its discretion by modifying the agreement without first conducting an evidentiary hearing. We find that a hearing was not necessary.

In the instant case the court was aware of what the parties’ assets were and how the parties wanted them divided. The court modified the agreement based on the actual sale price of the stock, awarding Doris an even greater proportion than originally contemplated in the agreement. Under these circumstances, the court did not abuse its discretion by modifying the agreement without a hearing.

The judgment of the circuit court of Whiteside County is affirmed.

Affirmed.

SLATER and GORMAN, JJ., concur.