text:
      In re MARRIAGE OF SUSAN WOLF, Petitioner-Appellee and Cross-Appellant, and ALAN WOLF, Respondent-Appellant and Cross-Appellee.
    First District (1st Division)
    No. 1—87—0282
    Opinion filed March 13, 1989.

      F. James Foley, Richard Gigante, and Paul R. Jenen, all of Chicago, for appellant.
    Bush & Heise, of Barrington, for appellee.
   PRESIDING JUSTICE MANNING

delivered the opinion of the court:

Susan Wolf, petitioner, and Alan Wolf, respondent, were married on August 8, 1970. No children were born of this marriage nor were any adopted. Susan Wolf filed for dissolution of marriage on April 15, 1983. A contested trial was held on September 11 and 12, 1986, regarding division of marital property and indebtedness, maintenance, and attorney fees.

Alan Wolf testified that he is currently living with his mother and has lived with her for approximately three years prior to trial. He has a bachelor’s degree in accounting and education and a master’s degree in guidance and counseling. Between 1970 and 1978 he worked as a teacher in the Chicago public school system, school district 211, Grays Lake School, Fremd High School in Palatine, and a junior college in Chicago. From 1979 to 1982 Mr. Wolf worked in the areas of real estate sales, outside salesman, high school/college teaching, accounting and hospital work. Between 1982 and 1984 he worked as a school bus driver, a real estate salesman, and purchased an Amway distributorship. He has not been employed since 1984, when he attempted suicide.

Mr. Wolf attended the Fillmore Job Co-op from September 1984 through February 1985 in order to develop the personal skills needed to better cope with a job. Although the staff at Fillmore recommended continuation in the program, Mr. Wolf dropped out of this program prior to completion.

Mr. Wolf also presented testimony regarding his history of hospitalizations beginning in 1967, when he was placed in the psychiatric ward of Loretto Hospital for three weeks, while in college, after threatening his mother and father with a gun. He was hospitalized in 1980 at St. Anne’s Hospital in the psychiatric ward for three weeks as a result of stress and physical problems he suffered in coping with his job. St. Anne’s Hospital discharged him for a week, then he was returned to the hospital for four weeks. In April 1983, he was hospitalized at St. Joseph’s Hospital in Elgin after he attempted to kill his wife’s attorney in the courtroom with a knife. During the summer of 1983 he was also hospitalized for three weeks at the River’s Edge Hospital after stabbing a policeman. He was again hospitalized at River’s Edge Hospital for five weeks in the summer of 1984, after attempting suicide through a drug overdose. Finally, he was hospitalized in 1985 at River’s Edge Hospital for three weeks for depression. Mr. Wolf testified that he has been taking medication on a regular basis.

Mr. Wolf further testified regarding his sources of income. Since the summer of 1984, he has been receiving social security disability payments of $246 per month, and he is entitled to medicare benefits. Moreover, he has health benefits under his wife’s group health plan. He also testified that he has used the interest earned from his Cragin Federal savings account of about $300 per month to pay for his living expenses, and he has borrowed money from his mother, amounting to $33,000 at the time of trial.

Mr. Wolf testified that on April 15, 1983, when the divorce was filed, they had approximately $400,000 in marital assets as the result of selling the marital home for $170,000, certificate of deposits of $100,000, savings of $100,000, individual retirement accounts for $16,500, a coin collection appraised at $4,300, and H&R Block stock which sold for a net of $962. He further testified that in 1983, he purchased two Cadillac Seville automobiles. The first automobile, a brown Cadillac Seville, was purchased on April 13, 1983, for $26,560. On May 15, 1983, Mr. Wolf purchased a red Cadillac Seville for $32,355, paid for from the Cragin Federal Savings and Loan account. Four months after purchase, Mr. Wolf sold the red Cadillac Seville for $23,000, transferring a portion of that money to his mother for living expenses and depositing $17,000 in an account at the LaGrange Federal Savings and Loan, which he subsequently spent. He transferred title of the brown Cadillac to his mother as repayment for the room and board that his mother had provided him during the past year and a half.

Mr. Wolf also testified regarding his living expenses at the time of trial. He has an oral agreement with his mother to pay her $1,000 per month for room and board and the use of the car. He also pays for his other living expenses, including $25 per week for gas, $100 per month for doctor visits and drugs, $200 per month for clothing and $100 to $300 per week on entertainment.

Susan Wolf testified that she has a bachelor’s degree in education and a master’s degree in counseling-psychology. She is working as a counselor at Schaumburg High School, earning approximately $44,000 per year, resulting in a $1,242.80 biweekly net income.

Ms. Wolf further testified that at the time this action commenced on April 15, 1983, they had assets totalling approximately $360,000. This amount was based on the selling of the marital home for a net of $175,000, savings accounts at Citicorp Savings and Loan for $100,000, the Land of Lincoln for $39,000, Taiman Savings for $10,000, Cragin Federal Savings and Loan for $55,000, a checking account at First Bank of Schaumburg for $1,849, with a current balance of $300, money market account at First National Bank of Hoffman Estates for $2,663, a coin collection, stocks, an individual retirement account for $5,200, and automobiles and home furnishings. The assets also included her teacher’s pension with a total contribution of $26,000 together with accrued interest totalling $34,000. She also made a contribution of $3,290 for the 1984-85 school year. Ms. Wolf stated that if she quit her job she would only be entitled to her $26,000 contribution, less a penalty. She further stated that she does not know what her monthly payments would be at retirement.

Ms. Wolf testified that she purchased a 1984 Cutlass Oldsmobile for $11,000. However, at the time of trial she was unaware of the value of the automobile. Moreover, her average monthly living expenses totalled $1,455 to $1,565 per month, including rent, utilities, food, clothing, gasoline, automobile repairs, medical bills, entertainment, and telephone. She finally testified that Mr. Wolf could obtain a spin-off health insurance policy through her group health insurance plan at work.

Camille Ferrance, a clinical psychologist, who began treating Alan Wolf in 1980 when he was at St. Anne’s Hospital, testified that Alan has been diagnosed as acute schizophrenic reaction-paranoid type. Dr. Ferrence stated that Alan has unrealistic expectations of himself and his difficulty with jobs is characteristic of his illness. He also experiences hallucinations and delusions. Dr. Ferrence further testified that the purchasing of the two Cadillacs was done out of frustration and Alan’s feelings of power, which is consistent with schizophrenia. Dr. Ferrence stated that Alan can have periods of normalcy, but he is unable to handle “day to day” problems as a normal individual would. She determined that Alan’s stress occurs when he is working with people.

Dr. Ferrence testified that she believes that it is unlikely that Alan could function in the capacity of teacher or counselor, and in her opinion he would have to remain on medication and would be in need of psychiatric care for the rest of his life. Although Alan cannot cope with the pressure of accounting, there is a possibility that he may work in the future. However, Alan must be retrained for a different vocation that would allow him to work with his hands and less with people. Dr. Ferrence testified that she referred Alan to the Fillmore Job Co-op. However, he left the program before they could make a job recommendation to him. On cross-examination she read from a psychiatric evaluation history where Alan communicated that he did not want a low paying job but a job commensurate with his college education. At the same time he indicated that he wanted maintenance as a part of the divorce settlement.

Dr. Bernard G. Suran, a clinical psychologist, also testified that since 1967 Alan has suffered from chronic paranoid schizophrenia, and that although Alan’s medication reduces his symptoms, there is no known cure for schizophrenia. Moreover, even if Alan takes his medication as prescribed, there is no guarantee that he will not slip out of remission and have a violent episode. Dr. Suran stated that in paranoid schizophrenia there is progressive disorganization within the individual and his thought processes are frequently delusional, involving feelings of persecution or grandiosity. In his opinion Alan is not employable in the conventional sense and would require medication and some form of psychological therapy for the rest of his life. Additionally, his employability prospects are getting worse because of the deterioration in his functioning. Dr. Suran believes that Alan could manage a job that did not require interpersonal contact on a regular basis.

Dr. Robert E. Bussell, director of clinical services at Cook County juvenile court, testified that he observed Alan in 1985, and Alan was potentially suicidal. Alan talked about killing himself and his wife. In his opinion, Alan has the intelligence to “hold down” a job but it must be low stress with almost no contact with people. He also testified that Alan has been a chronic paranoid schizophrenic since 1967, and the purchase of the two Cadillacs is consistent with the grandiose stage of schizophrenia. He believes that once the divorce is over, Alan’s stress will be reduced and his illness should be helped.

A judgment for dissolution of marriage was entered on December 29, 1986. The petitioner was awarded: (1) her pension fund; (2) the account at Schaumburg State Bank; (3) the account at the First Bank of Hoffman Estates; (4) the 1984 Oldsmobile Cutlass automobile; (5) her IRA account; and (6) any and all personal property presently in her possession. The respondent was awarded: (1) the account at Cragin Savings and Loan; (2) the account at LaGrange Federal Bank; (3) his account at Land of Lincoln; (4) his IRA; and (5) any and all other personal property presently in his possession. Moreover, the joint accounts at Pathway Financial, America National and Land of Lincoln were to be divided equally between the parties.

The petitioner is also required to pay to the respondent $500 per month for maintenance to be reviewed in two years, and each party is responsible for payment of his own attorney fees. Finally, the petitioner is to “effectuate proceedings to retain the respondent on her medical insurance policy.” Alan Wolf appealed that portion of the judgment relative to division of marital property and debts, maintenance, and attorney fees.

Alan contends that the trial court’s decision to award him only 54% of the marital assets while awarding Susan 46% was against the manifest weight of the evidence and an abuse of discretion. Alan specifically maintains that he should have been awarded the bulk of the assets or at least 80%, if the trial court would have considered his age, health, economic circumstance, prospects to produce income and the length of the marriage. Moreover, it is not clear what value the trial court placed on the marital assets such as the account balance at LaGrange Federal Savings and the petitioner’s 1984 Oldsmobile Cutlass. Furthermore, there is a discrepancy in the value of the petitioner’s pension.

A reviewing court will not disturb a division of marital property unless an abuse of discretion is shown. (In re Marriage of Partyka (1987), 158 Ill. App. 3d 545, 550, 511 N.E.2d 676; In re Marriage of Ales (1986), 148 Ill. App. 3d 305, 309, 499 N.E.2d 168.) There is an abuse of discretion if no reasonable person would take the view adopted by the trial court. In re Marriage of Lee (1979), 78 Ill. App. 3d 1123, 1127, 398 N.E.2d 126.

The touchstone of the proper apportionment of property is whether the distribution is equitable in nature. (In re Marriage of McNeeley (1983), 117 Ill. App. 3d 320, 325, 453 N.E.2d 748; In re Marriage of Lee (1979), 78 Ill. App. 3d 1123, 1132, 398 N.E.2d 126.) The Illinois Marriage and Dissolution of Marriage Act does not require an equal division of marital property but an equitable division. In re Marriage of Melnick (1984), 127 Ill. App. 3d 102, 107, 468 N.E.2d 490; In re Marriage of Aschwanden (1980), 82 Ill. 2d 31, 37, 411 N.E.2d 238.

The trial court must consider all relevant factors under section 503(d) of the Illinois Marriage and Dissolution of Marriage Act in dividing marital property. (Ill. Rev. Stat. 1983, ch. 40, par. 503(d); In re Marriage of Smith (1984), 128 Ill. App. 3d 1017, 1025, 471 N.E.2d 1008.) The relevant factors in the case at bar include:

“(1) the contribution or dissipation of each party in the acquisition, preservation, or depreciation or appreciation in value, of the marital and non-marital property, including the contribution of a spouse as a homemaker or to the family unit;
(2) the value of the property set apart to each spouse;
(3) the duration of the marriage;
(4) the relevant economic circumstances of each spouse when the division of property is to become effective ***;
* * *
(7) the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and needs of each of the parties;
***
(9) whether the apportionment is in lieu of or in addition to maintenance;
(10) the reasonable opportunity of each spouse for future acquisition of capital assets and income; and
(11) the tax consequences of the property division upon the respective economic circumstances of the parties.” 111. Rev. Stat. 1983, ch. 40, par. 503(d).

The property was awarded by the trial court in the following manner:

Description Husband Wife

Teacher Pension $26,219

Account at Schaumburg State Bank 300

Account at First Bank of Hoffman

Estates 2,663

Her IRA 5,622

Cragin Savings and Loan Account $54,507

LaGrange Federal Bank Account 0

His Land of Lincoln Account 125

His IRA 3,000

Pathway Financial Savings Account (50%) 90,000 90,000

Land of Lincoln Account (50%) 19,868 19,868

$167,500 $144,672

Each party was also awarded all personal property presently in his possession, and Susan was awarded her 1984 Oldsmobile Cutlass automobile.

Alan argues that the trial court failed to make definite findings as to the relevant factors considered in dividing the property. A trial court should make specific findings regarding the factors it considered under section 503(d) in rendering its decision. (In re Marriage of Los (1985), 136 Ill. App. 3d 26, 29-30, 482 N.E.2d 1022; Sostak v. Sostak (1983), 113 Ill. App. 3d 954, 447 N.E.2d 1345.) However, where the record adequately provides a basis for a reviewing court to determine the propriety of the decision and the decision is supported by the evidence, the trial court will not be reversed solely because the record does not contain specific findings. In re Marriage of Ales (1986), 148 Ill. App. 3d 305, 308, 499 N.E.2d 168; In re Marriage of Melnick (1984), 127 Ill. App. 3d 102, 108, 468 N.E.2d 490.

In this case, the trial court divided the marital assets, which totalled $312,172, by allocating to Alan $167,500 in marital assets (54% of the total marital assets) and allocating $144,672 in marital assets to Susan (46% of the total marital assets). The record reveals that the trial court specifically stated that it considered the relevant factors enumerated under section 503(d). Additionally, the court specifically noted that it considered the reasonable opportunity of each party to accumulate future assets.

Alan testified that he received approximately $300 per month from the interest of the Cragin Savings and Loan account with a balance of approximately $54,000. If he properly invested only the $109,868 that he was awarded from the Pathway Financial and the Land of Lincoln accounts, he could foreseeably receive an additional $600 per month in interest, totalling $900 per month in interest from these three accounts. This $900 per month is exclusive of the $246 per month that Alan is receiving as social security disability payments and the $500 per month that Susan is required to pay for Alan’s maintenance.

We also find unpersuasive respondent’s argument that the trial court did not place a value on Susan’s 1984 Cutlass Oldsmobile and that there is a discrepancy in the value of the petitioner’s pension. It is the parties’ obligation to provide the trial court with sufficient evidence of the value of property, including pension rights, and the trial court will base its division of property upon the evidence presented. (In re Marriage of Smith (1983), 114 Ill. App. 3d 47, 54, 448 N.E.2d 545.) In this case, Susan testified that she did not know the current value of her automobile and neither party presented evidence regarding the automobile’s value. A reviewing court will not reverse the trial court where the parties have failed to produce evidence in dissolution cases when there was an adequate opportunity to do so. In re Marriage of Flosman (1987), 160 Ill. App. 3d 832, 838-39, 513 N.E.2d 879; In re Marriage of Smith (1983), 114 Ill. App. 3d 47, 54, 448 N.E.2d 545.

When Susan testified to the value of her pension plan and the refundable distribution, the respondent’s attorney did not object to these figures, nor did he present any contrary evidence to Susan’s pension plan. Furthermore, the Teacher’s Retirement System presented a statement of the value of the pension as $26,219, which was stipulated to prior to trial by both parties. A party cannot argue for the first time on appeal regarding the value of a pension, when he has failed to object to the value before the trial court and failed to introduce to the trial court evidence to the contrary. (In re Marriage of Callaway (1986), 150 Ill. App. 3d 712, 714-15, 502 N.E.2d 366.) We conclude that there was sufficient evidence presented regarding the value of the pension plan.

Susan argues that Alan dissipated marital assets. It should be noted that although the trial court did not indicate that it specifically addressed Alan’s dissipation of marital assets, the court may consider the dissipation when apportioning marital property. (In re Marriage of Hellwig (1981), 100 Ill. App. 3d 452, 462 N.E.2d 1087.) Dissipation of marital assets may occur where one spouse uses marital property solely for his benefit for a purpose unrelated to the marriage when the marriage is in serious jeopardy. (In re Marriage of Los (1985), 136 Ill. App. 3d 26, 31, 482 N.E.2d 545; In re Marriage of Smith (1983), 114 Ill. App. 3d 47, 51, 448 N.E.2d 545.) Alan’s dissipation of assets was evidenced by the purchase of two Cadillacs in the amounts of $26,560 and $32,355, after it became clear that the marriage was in jeopardy. Moreover, he sold a coin collection from which he received $4,300 and H&R Block stock from which he received $962.

If an examination of the record reveals that the trial court was aware of the requirements of section 503(d), and its disposition of marital property was consistent with section 503(d), then an abuse of discretion has not occurred. (In re Marriage of Partyka (1987), 158 Ill. App. 3d 545, 555, 511 N.E.2d 676; In re Marriage of Fryer (1980), 88 Ill. App. 3d 454, 457, 410 N.E.2d 596.) After reviewing the record and the relevant statutory factors, we are convinced that the trial court’s apportionment of marital property was equitable and consistent with section 503(d). Therefore, it did not result in an abuse of discretion.

The respondent next contends that the trial court abused its discretion in awarding him only $500-per-month maintenance. An award of maintenance is within the discretion of the trial court, and it will not be disturbed by a reviewing court unless there is an abuse of discretion or the determination is against the manifest weight of the evidence. (In re Marriage of Kaplan (1986), 149 Ill. App. 3d 23, 33, 500 N.E.2d 612; In re Marriage of Johnson (1982), 106 Ill. App. 3d 502, 508, 436 N.E.2d 228.) An abuse of discretion will occur where no reasonable man would take the view of the trial court. In re Marriage of Los (1985), 136 Ill. App. 3d 26, 33, 482 N.E.2d 1022; In re Marriage of Glessner (1983), 119 Ill. App. 3d 306, 456 N.E.2d 311.

Section 504(b) of the Illinois Marriage and Dissolution of Marriage Act sets forth the following factors to be considered for the awarding of maintenance to the spouse seeking maintenance, including:

“(1) the financial resources of the party seeking maintenance, including marital property apportioned to him, and his ability to meet his needs independently ***;
(2) the time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment;
(3) the standard of living established during the marriage;
(4) the duration of the marriage;
(5) the age and the physical and emotional condition of both parties;
(6) the ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance; and
(7) the tax consequences of the property division upon the respective economic circumstances of the parties.” Ill. Rev. Stat. 1983, ch. 40, par. 504(b).

The trial court set a two-year time limitation for the review of its maintenance award. The purpose for providing maintenance for a certain length of time is to provide an incentive for the spouse receiving maintenance to use this time in diligently trying to obtain the necessary training or skills to become self-sufficient. (In re Marriage of Wilder (1983), 122 Ill. App. 3d 338, 351, 461 N.E.2d 447.) A spouse seeking maintenance has an affirmative duty to diligently try and secure gainful employment. (In re Marriage of Kaplan (1986), 149 Ill. App. 3d 23, 33, 500 N.E.2d 612; In re Marriage of McNeeley (1983), 117 Ill. App. 3d 320, 328, 453 N.E.2d 748.) In this case expert testimony revealed that although Alan could not maintain employment which required direct contact with people, he could seek employment in other areas.

In determining the proper amount of maintenance the trial court specifically stated that it had considered the factors set out in section 504(b). Moreover, in reaching its conclusion, the trial court stated that it had observed the witnesses, given proper weight and credence to their testimony and special consideration was given to the reasonable opportunity of each party to accumulate future assets. As previously noted, Alan testified that he received $300 per month interest on the $54,000 principal in Cragin Savings and $246 per month in social security disability payments. Therefore, in addition to the $500-per-month maintenance award, Alan can generate income from the assets apportioned to him.

Alan was awarded approximately $167,500 or 54% of the marital assets. The court in In re Marriage of Borg (1981), 96 Ill. App. 3d 282, 286-87, 421 N.E.2d 214, awarded the wife $177,500 in assets or 26% of the marital assets and denied periodic maintenance, concluding that the assets awarded were sufficient to meet her reasonable needs. In this case the trial court could have concluded that Alan was not entitled to receive maintenance in light of his substantial award of marital property. Instead, the trial court granted Alan a $500-per-month maintenance award to be reviewed in two years. We are not convinced that the maintenance award in conjunction with the monthly social security disability payment and the marital property distribution are insufficient to provide for Alan’s reasonable needs. After reviewing the record, we cannot conclude that the trial court abused its discretion in awarding maintenance nor does the record show that the maintenance award is against the manifest weight of the evidence.

The respondent finally contends that the trial court abused its discretion when it failed to order Susan to contribute towards his attorney fees and cost. Specifically, the respondent argues that he was never allowed to file a petition for attorney fees since the court determined that each party would pay his own attorney fees.

The award of attorney fees is within the sound discretion of the trial court, and a court of review will not disturb that decision absent an abuse of discretion. (In re Marriage of Stockton (1988), 169 Ill. App. 3d 318, 328, 523 N.E.2d 573; In re Marriage of Bussey (1985), 108 Ill. 2d 286, 299, 483 N.E.2d 1229, 1235.) The payment of attorney fees is the primary obligation of the party on whose behalf the services are rendered. (In re Marriage of Kaplan (1986), 149 Ill. App. 3d 23, 34, 500 N.E.2d 612; In re Marriage of Jacobson (1980), 89 Ill. App. 3d 273, 411 N.E.2d 947.) Whether an award of attorney fees is proper depends upon a showing of the party seeking them of an inability to pay and the ability of the other spouse to pay fees. In re Marriage of Pahlke (1987), 154 Ill. App. 3d 256, 263, 507 N.E.2d 71; In re Marriage of Bussey (1985), 108 Ill. 2d 286, 299-300, 483 N.E.2d 1229, 1235.

A party can request a hearing on attorney fees and is entitled to an opportunity to present evidence in support of his request. (Kaufman v. Kaufman (1974), 22 Ill. App. 3d 1045, 1051, 318 N.E.2d 282.) However, where a party does not request a hearing on his inability to pay or the wife’s ability to pay, he has waived his right to a hearing (In re Marriage of Lord (1984), 125 Ill. App. 3d 1, 6-7, 465 N.E.2d 151; In re Marriage of Hellwig (1981), 100 Ill. App. 3d 452, 466, 426 N.E.2d 1087), and the judge may award attorney fees based on the pleadings, affidavits on file and on his own experience. (Kaufman v. Kaufman (1974), 22 Ill. App. 3d 1045, 1051, 318 N.E.2d 282.) Alan has sufficient assets to pay for his attorney fees. Therefore, we do not find an abuse of discretion in the trial court requiring Alan to pay his own attorney fees.

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

Judgment affirmed.

CAMPBELL and O’CONNOR, JJ., concur.


source: Caselaw Access Project

author: JUSTICE CAMPBELL

license: Public Domain

text:
    TRILLA STEEL DRUM CORPORATION, Petitioner, v. THE POLLUTION CONTROL BOARD et al., Respondents.
    First District (1st Division)
    No. 1—87—2757
    Opinion filed March 13, 1989.

      A.L. Zimmer, of Chicago, for petitioner.
    Neil F. Hartigan, Attorney General, of Springfield (Shawn W. Denney, Solicitor General, and Joseph M. Claps, Marcia Bellows, and Joseph J. An-nunzio, Assistant Attorneys General, of Chicago, of counsel), for respondents.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Trilla Drum Corporation (Trilla) appeals from an administrative decision of the Illinois Pollution Control Board (the Board) imposing a $10,000 fine against Trilla for failure to comply with Illinois permit requirements for a period in excess of 15 months.

Trilla is an Illinois corporation engaged in the business of manufacturing 55-gallon steel drums in Chicago, Illinois. As part of its manufacturing process, Trilla applies coatings to both the interior and exterior of the steel drums, resulting in emissions of volatile organic materials (VOM) into the air. In December 1982, the Board adopted certain regulations that pertain to steel drum manufacturers requiring that coatings or linings used to cover the interior of steel drums contain no more than 4.3 pounds of VOM per gallon of interior coating as applied and that paints or coatings used to cover the exterior of steel drums contain not more than 3.5 pounds of VOM per gallon of exterior coating as applied. (35 Ill. Adm. Code 215.204Q) (1985).) Since Trilla conducts a regulated activity, it is required to have a current permit issued by the Illinois Environmental Protection Agency (the Agency) in order to operate its business. Trilla’s permit expired on December 31, 1984, and for a period of 15 months Trilla did not renew its operating permit.

On January 16, 1986, Trilla filed its petition for a variance from the Board requirements until December 31, 1987. The Board granted the variance on February 5, 1987, finding that the company would suffer an arbitrary or unreasonable hardship if the variance was denied. On March 13, 1986, Trilla filed an application with the Agency for an operating permit which the Agency denied for the reason that the Board regulations to control emissions might be violated. On May 19, 1987, a second permit application was filed with the Agency and was also denied for the same reason.

On April 18, 1986, the Agency filed a two-count complaint against Trilla. Count I alleged that Trilla had operated its facility since January 1, 1985, without an operating permit from the Agency, and count II charged that the company’s interior coating line was not in compliance with the Board’s regulations. A hearing on the Agency’s complaint was held on July 21, 1986, at which time a stipulation of facts was presented to the Board. Among the facts agreed to by the parties was that Trilla did not have an operating permit for its facility between January 1, 1985, and the date the Agency’s complaint was filed due to its failure to comply with the Board’s emission control regulations. Trilla contested the allegation that its interior coating line was emitting VOM in excess of that allowed by the Board’s regulations and presented evidence that it actively tried to reduce the violative air emissions.

On June 25, 1987, the Board issued an opinion finding that the Agency did not meet its burden of proving the allegations of Trilla’s noncompliance with the air emissions standards as contained in count II of the Agency’s complaint. Regarding the count I allegations of permit violations, the Board found that because Trilla admitted to operating without a permit from January 1, 1985, to April 18, 1986, Trilla had violated both section 9(b) of the Illinois Environmental Protection Act (Ill. Rev. Stat. 1985, ch. llTVa, par. 1009(b)) and 35 Ill. Adm. Code 201.141 and 215.204(j) (1985). The Board imposed the maximum $10,000 fine as an incentive for Trilla to come into compliance with its regulations. The Board further ordered Trilla to cease and desist operating until such time as it acquired a permit. Thereafter, Trilla moved to modify the order of June 25, 1987, to allow it to continue operating while it continued actively to seek an operating permit. Trilla also requested the Board to vacate or reduce the $10,000 fine. In response to the motion, on August 11, 1987, the Board stayed its cease and desist order for 60 days to allow Trilla to reapply for an operating permit, but denied relief from the imposition of the $10,000 fine. This direct appeal from the order imposing the fine by the Board followed.

On appeal, Trilla argues that a mere violation of the permit requirement without a showing of harm to the environmental regulation process does not justify a $10,000 fine. Section 42(a) of the Illinois Environmental Protection Act (the Act) provides:

, “Any person that violates any provisions of this Act or any regulation adopted by the Board, or any permit or term or condition thereof, or that violates any determination or order of the Board pursuant to this Act, shall be liable to a civil penalty of not to exceed $10,000 for said violation and an additional civil penalty of not to exceed $1,000 for each day during which violation continues.” (Ill. Rev. Stat. 1985, ch. IllV2, par. 1042(a).)

General constraints have been established concerning the power of the Board under section 42(a) to levy monetary penalties. Penalties are imposed primarily to aid in enforcement of the Act rather than to impose punishment. (Ill. Rev. Stat. 1985, ch. IIIV2, par. 1033(c); City of Monmouth v. Pollution Control Board (1974), 57 Ill. 2d 482, 313 N.E.2d 161.) A monetary fine must be supported by some reasonable ground appearing in the record (Bresler Ice Cream Co. v. Pollution Control Board (1974), 21 Ill. App. 3d 560, 315 N.E.2d 619) and must be commensurate with the seriousness of the infraction for which it is imposed. (City of Chicago v. Pollution Control Board (1978), 57 Ill. App. 3d 517, 373 N.E.2d 512.) Monetary penalties must not be imposed solely to set an example. City of Chicago, 57 Ill. App. 3d 517, 373 N.E.2d 512.

In reviewing the record in the case at bar, we do not believe the facts as set forth are sufficient to support the imposition of the maximum $10,000 fine for Trilla’s permit violation. The record reveals that the penalty was imposed due to Trilla’s failure to obtain an operating permit for a period of 15 months. During that time, however, Trilla was not entirely beyond the regulatory awareness of the Agency since prior to the end of 1984 Trilla had applied for and received an operating permit. Further, in January 1986, Trilla had applied for and received a variance from the Agency. By Trilla’s permit and variance applications, the company became a part of the regulatory program of the Agency and the Agency had data concerning the company’s existence, the products it manufactured and the contaminants which were emitted by the operation. The Board has not shown that Trilla’s omission has harmed in a serious manner either the information gathering or oversight roles of the Agency. See Standard Scrap Metal Co. v. Pollution Control Board (1986), 142 Ill. App. 3d 655, 491 N.E.2d 1251.

The circumstances here are readily distinguishable from those cases where a violation of the permit program could create a harmful impediment to the Agency’s responsibility to protect the environment and the public. (Cf. Standard Scrap Metal Co. v. Pollution Control Board (1986), 142 Ill. App. 3d 655, 491 N.E.2d 1251 (the company had never applied for. operating permits for its wire-burning furnace and incinerator for a period of nine years and this court found the company had exhibited a blatant disregard for the rules and procedures designed to protect the environment and upheld a $30,000 penalty).) Trilla is a company against which the Board had not proven actual pollution in any instance. In our judgment, after examining the record, we do not find a reasonable basis of support for the imposition of the $10,000 fine. (See Bresler Ice Cream Co. v. Pollution Control Board (1974), 21 Ill. App. 3d 560, 315 N.E.2d 619.) The imposition of the maximum penalty here for a permit violation where there has been no finding that Trilla was a polluter would appear unwarranted on this record. As this court has previously determined, the company should only be penalized in a measure appropriate to the impediment it poses to the effective implementation of the goals of the Act. Harris-Hub Co. v. Pollution Control Board (1977), 50 Ill. App. 3d 608, 365 N.E.2d 1071.

In Southern Illinois Asphalt Co. v. Pollution Control Board (1975), 60 Ill. 2d 204, 326 N.E.2d 406, our supreme court addressed the issue of when a fine imposed by the Pollution Control Board is arbitrary and unauthorized. There an asphalt pavement supplier failed to obtain an operating permit before beginning operations. Southern Illinois Asphalt was not charged with air pollution, and the failure to obtain an operating permit at the time of commencing operations was characterized by the supreme court as inadvertent. The Board, however, assessed a $5,000 penalty. In addition, the Board issued a cease and desist order against the further operation of the plant, apparently unaware of the fact that the plant had voluntarily closed before the complaint against it had been filed. The supreme court found that the fine was an arbitrary penalty and was unjustified in view of the mitigating circumstances shown by the evidence, stating:

“Obviously the General Assembly did not intend that the Pollution Control Board should impose a monetary fine in every case of a violation of the Act or regulations. Section 33(a) provides that the Board, following a hearing, shall enter such order ‘as it shall deem appropriate under the circumstances.’ Section 33(b) provides that the order may include a direction to cease and desist ‘and/or the imposition by the Board of civil penalties in accord with Section 42.’ [Citation.] Section 42 authorizes the imposition of a civil penalty of not to exceed $10,000 for the violation and an additional civil penalty of not to exceed $1,000 for each day during which the violation continues. Implicit in the grant of the discretionary authority to impose monetary civil penalties in varying amounts is the requirement that the severity of the penalty should bear some relationship to the seriousness of the infraction or conduct.” (Emphasis in original.) 60 Ill. 2d at 208, 326 N.E.2d at 410.

In the case at bar, Trilla’s business involved treating metal products with paint coatings and Trilla was refused a permit when it applied to the Agency. Trilla’s operations were not found to violate Board emissions regulations for organic materials, and the record indicates Trilla was making efforts to reduce its objectionable emissions and was searching for compliant interior coatings. The Board made no finding of bad faith on the part of Trilla. Further, the record reveals that Trilla had attempted to obtain the required permit before the filing of the enforcement action, and in fact, on February 5, 1987, while this case was pending, the Board granted Trilla the variance it sought. By the terms of that variance Trilla was allowed until December 31, 1987, to emit VOM in excess of that allowed by the Board regulations. Had the Agency acknowledged the variance granted Trilla, and that Trilla was then in compliance with the Act, no further action would have been necessary for Trilla to take in order to comply with the permit requirements. Since the Board determined that “Trilla’s efforts to achieve compliance with emissions standards [were] commendable,” it is our opinion that the Board’s determination that the maximum fine of $10,000 was warranted by Trilla’s lack of diligence in pursuing a permit does not find support in the record. The Board should not attempt to make an example of Trilla since such a practice has been expressly disapproved of by this court and the penalty must bear some relationship to the seriousness of the infraction. (Southern Illinois Asphalt Co. v. Pollution Control Board (1975), 60 Ill. 2d 204, 326 N.E.2d 406; City of Chicago v. Pollution Control Board (1978), 57 Ill. App. 3d 517, 373 N.E.2d 512.) Accordingly, we find the penalty imposed here is unsupported by the record and we remand this matter for reconsideration. See Itasca Public School District, No. 10 v. Ward (1989), 179 Ill. App. 3d 920.

For the reasons stated, the portion of the order of the Pollution Control Board which imposed the $10,000 fine is reversed and the cause is remanded to the Board for consideration of an appropriate penalty as warranted by the circumstances of this case.

Reversed and remanded.

MANNING, P.J., and QUINLAN, J., concur.

      A variance is a license issued by the Board allowing a standard or limitation of the Environmental Protection Act (Ill. Rev. Stat. 1985, ch. IIIV2, par. 1001 et seq.) to be exceeded for a specific amount of time in order to permit a company to achieve compliance with that provision. A variance may be granted where it is found that compliance with a provision causes undue hardship. See Ill. Rev. Stat. 1985, ch. IIIV2, par. 1035.


author: JUSTICE QUINLAN

text:
    LEO BRIGANDO, Plaintiff-Appellee, v. REPUBLIC STEEL CORPORATION, Defendant and Third-Party Plaintiff (Hunter Corporation, Third-Party Defendant-Appellant).
    First District (1st Division)
    No. 1—87—3851
    Opinion filed March 13, 1989.
    Rehearing denied April 4, 1989.
    Lord, Bissell & Brook, of Chicago (William T. Weaver, Hugh C. Griffin, and Diane I. Jennings, of counsel), for appellant.
    Balkin & Doran, Ltd., of Chicago (Philip H. Doran, Mark G. Adler, and Michael W. Rathsack, of counsel), for appellee.
   JUSTICE QUINLAN

delivered the opinion of the court:

The plaintiff, Leo Brigando, an employee of the Hunter Corporation (Hunter), was injured while repairing a crane at the Chicago plant of Republic Steel Corporation (Republic). Brigando sued Republic in the circuit court of Cook County alleging negligence and violations of the Structural Work Act (see LI. Rev. Stat. 1987, ch. 48, par. 60 et seq.). Republic, in turn, filed a third-party claim against Hunter, asserting a claim based upon theories of indemnity, contribution, and breach of contract. When Brigando’s suit against Republic was apparently settled by an agreement of Republic, Hunter and Brigando, the trial court, on the basis of the purported settlement, dismissed Bri-gando’s suit and Republic’s third-party claim against Hunter. Pursuant to this purported settlement, Republic had agreed to pay Bri-gando $25,000 and Hunter had agreed to pay Brigando $100,000. One week later, Republic filed for bankruptcy. Thereafter, Brigando filed a motion to vacate the dismissal and reinstate its suit. Later, however, Brigando agreed to accept $10 as payment in full, under the purported settlement, from Republic. After Brigando accepted $10 from Republic, Hunter refused to pay its portion, $100,000, when payment was demanded from Brigando. Subsequently, the trial court, on plaintiff’s motion, ordered “enforcement” of the dismissal order, and, specifically, ordered Hunter to abide by the oral settlement agreement and pay Brigando $100,000. Hunter has now appealed.

The particular facts underlying the Brigando lawsuit are as follows. Republic hired Hunter to repair a crane at its Chicago plant. Hunter sent its employee, Brigando, to Republic’s Chicago plant to repair the crane, and, on July 23, 1977, while performing that job, Bri-gando fell from a scaffold and was injured. Brigando sued Republic to recover for his injuries, and Republic, in turn, as noted, filed a third-party claim against Brigando’s employer, Hunter. Brigando, Republic and Hunter reached an oral settlement agreement during the pretrial phase of the case, under which Republic agreed to pay Brigando $25,000, and Hunter agreed to pay Brigando $100,000 and waive its workers’ compensation lien. These basic terms are undisputed, although the agreement was not reduced to writing. The dispute, which will be discussed in detail later, centered around the question of whether Hunter’s payment of $100,000 was conditioned upon Republic’s payment of $25,000 to Brigando.

Based upon the settlement by the parties, the claims were dismissed with prejudice on July 10, 1986. The trial court’s order of July 10, 1986, was a form dismissal order which consisted only of generalized language and stated as follows:

“This cause coming to be heard upon the regular call of cases for pre-trial, and it appearing to the court that the said cause has been settled by agreement of the parties. IT IS HEREBY ORDERED, adjudged and decreed that the above entitled cause be and the same is hereby dismissed with prejudice — and without costs.”

One week later, on July 17, 1986, Republic filed a petition for reorganization in Federal bankruptcy court, and, because of Republic’s filing, on July 18, 1986, Brigando brought a motion in the trial court requesting that the court vacate its order of July 10, 1986. Hunter did not object to this motion, and a hearing date on the motion was set for May 11, 1987.

On April 3, 1987, however, Brigando sent out notice of another motion, in which he requested that the court enter an order “enforcing” the order of July 10, 1986. Brigando presented the so-called motion to enforce to the court on May 11, 1987. Attached to Brigando’s motion to enforce was his signed release, in which he agreed to release Republic from liability in exchange for Republic’s payment of $10 and to release Hunter in exchange for both Hunter’s payment of $100,000 and Hunter’s waiver of its workers’ compensation lien. Apparently to clarify the inconsistency of his prior motions to vacate and enforce the order, Brigando subsequently filed a single consolidated motion in which he requested that the court enforce the July 10, 1986, dismissal order, or, in the alternative, vacate the July 10 dismissal order and reinstate the case.

On June 23, 1987, the trial court held a hearing on Brigando’s consolidated motion. The record reveals that, at the hearing, the court found that there had been no revision or modification of the terms of the oral settlement agreement as they applied to Hunter and then, based on that finding, entered an order stating that its prior order of July 10, 1986, should, accordingly, be “enforced” against the parties. In conjunction with this ruling, the court also denied Brigando’s motion to vacate the order of July 10,1986.

Subsequent to this ruling, Brigando filed a second motion to enforce the dismissal order of July 10, 1986, since Hunter still refused to pay Brigando. On November 17, 1987, the court held a hearing on this second motion to enforce and, at the hearing, Hunter argued that it had not paid Brigando because the court’s prior order of June 23, 1987, did not specifically order it to pay Brigando, and in fact did not order it to do anything. The court disagreed with Hunter and found that since the terms of the July 10, 1986, agreement were undisputed, Hunter unequivocally agreed to pay Brigando $100,000, and Hunter’s payment to Brigando was not contingent upon Republic’s payment of $25,000. Therefore, the court again ordered that the July 10, 1986, order be enforced, but this time, in contrast to the court’s prior order of enforcement, it specifically directed Hunter to pay Brigando $100,000 and waive its workers’ compensation lien. It is from this second order of enforcement, entered on November 17, 1987, as well as the court’s prior order of enforcement, entered June 23, 1987, that Hunter appeals.

Three issues are raised by Hunter on appeal: (1) whether the trial court had jurisdiction to enter the orders of June 23, 1987, and November 17, 1987, which attempted to enforce the July 10, 1986, dismissal order; (2) whether the trial court erred when it ordered enforcement of the settlement agreement and ordered Hunter to pay Brigando $100,000 and waive its workers’ compensation lien; and (3) whether the oral settlement agreement should have been rescinded because there was a mutual mistake of fact regarding Republic’s solvency.

The first issue raised by Hunter contests the jurisdiction of the trial court to enter its orders of enforcement of June 23, 1987, and November 17, 1987. Hunter argues that the trial court did not have jurisdiction to order Hunter to pay the $100,000 settlement amount because the July 10, 1986, order was merely a dismissal order and nothing else. Hunter contends that Brigando’s motion was an attempt to have the court enforce the modified terms of the settlement agreement. Hence, Hunter argues that Brigando was actually requesting that the court modify its original order more than 30 days after the July 10, 1986, dismissal order was entered. Consequently, Hunter asserts that since the July 10 order was a final order and 30 days had passed since its entry, the trial court no longer had jurisdiction to change it to include the alleged terms of the settlement. Moreover, Hunter notes that the terms of the agreement were, in any event, disputed because its agreement to pay Brigando $100,000 and waive its lien was conditional upon Republic’s agreement to pay $25,000 to Bri-gando.

Brigando, on the other hand, argues that a court has inherent power to enforce its own orders and that the court here properly enforced its previous order of July 10, 1986, when it required Hunter to pay the $100,000, for that requirement was part of an undisputed oral settlement agreement encompassed in the July 10, 1986, order. The court’s orders of enforcement were jurisdictionally proper, Brigando asserts, because there were no revisions or amendments to the July 10, 1986, order and the parties never disputed the fact that before Republic filed for bankruptcy, Hunter had agreed, unconditionally, to pay $100,000 and waive its lien in exchange for Brigando dropping his lawsuit.

Generally, a trial court retains jurisdiction over cases pending before it until such time as a final judgment is entered in the case and the litigation is effectively terminated between the parties in the trial court. The court does, however, have a 30-day period after the entry of a final judgment within which it may hear post-trial motions or other motions, and at the end of this 30-day period, the judgment becomes “final” in the sense that, when the 30-day period expires, the court loses its jurisdiction to alter its judgment orders. (See Midwest Bank & Trust Co. v. Village of Lakewood (1983), 113 Ill. App. 3d 962, 968, 447 N.E.2d 1358, 1361-62.) Thus, 30 days after the entry of a final judgment, a trial court loses jurisdiction to amend, modify, rehear, retry, vacate, or grant other relief of a similar nature from the final judgment order. (See Ill. Rev. Stat. 1987, ch. 110, pars. 2 — 1202, 2— 1203; Midwest Bank & Trust Co. (1983), 113 Ill. App. 3d 962, 968, 447 N.E.2d 1358, 1362.) There is, however, a procedure under section 2 — 1401 of the Code of Civil Procedure in which a party has up to two years after the 30-day period has lapsed to petition the court for relief from the judgment, i.e., to set aside the judgment, but this petition must be based upon matters not of record. Ill. Rev. Stat. 1987, ch. 110, par. 2-1401.

In some limited circumstances, a trial court may retain jurisdiction to enforce its own orders after the 30-day time period has lapsed. For example, in Comet Casualty Co. v. Schneider (1981), 98 Ill. App. 3d 786, 424 N.E.2d 911, where the trial court entered a consent judgment, i.e., a judgment consented to by all of the parties and which is also approved and entered by the trial court, the court had jurisdiction after the 30-day period had lapsed to order the continuing performance of certain specific acts by the parties, which had been included as part of the consent judgment entered by the court. (Comet, 98 Ill. App. 3d 786, 424 N.E.2d 911.) A trial court may also, at times, retain jurisdiction to enforce its order after the lapse of the 30-day period where the judgment contemplates or orders future performance by the parties. (See, e.g., Village of Gilberts v. Holiday Park Corp. (1986), 150 Ill. App. 3d 932, 502 N.E.2d 378 (issuance of permits); Adam-Martin Construction Co. v. Brandon Partnership (1985), 135 Ill. App. 3d 324, 481 N.E.2d 962 (set off of arbitration award).) This is not, however, the usual case if a money judgment is entered by the court. See generally Green v. Alton Telegraph Printing Co. (1982), 107 Ill. App. 3d 755, 763, 438 N.E.2d 203, 208.

In order to determine if the court here had jurisdiction to enter the orders of June 23, 1987, and November 17, 1987, we must examine the scope of the July 10, 1986, order. Hunter, as noted, contends that the scope of the order was limited to the dismissal of the claims of the parties, and Brigando argues that the scope of the order included the undisputed terms of the settlement agreement referred to in the order. We agree with Hunter that the scope of the order here was limited solely to the dismissal of the claims of the parties and did not include any terms of the alleged oral settlement agreement.

It is clear that the trial court’s order of July 10, 1986, was only an order of dismissal, and, accordingly, 30 days after the entry of the dismissal order, the trial court’s jurisdiction over the matter ended. There were no special circumstances present here which could have extended the court’s jurisdiction to “enforce” the order, for the order did not direct or enjoin activity, it merely dismissed the case. Brigando’s contention that the terms of the oral agreement were inherently a part of the trial court’s order is without basis. The case was dismissed, and the trial court merely noted that the reason for the dismissal was the purported agreement of the parties to settle the matter outside of court. Therefore, the purpose of the order of July 10, 1986, was merely to dispose of the litigation between the parties, and nothing in that order or in the record suggests that the court intended to do otherwise. Additionally, it is quite clear that the trial court was never asked to entertain a consent or stipulated judgment for Brigando in the case. Moreover, Brigando could have asked to move to amend, clarify, modify or vacate the dismissal order within 30 days, and although Brigando did move to vacate the dismissal order within 30 days, he did not pursue this motion and it was eventually denied, and the order denying Brigando’s motion to vacate the dismissal order has not been appealed. Brigando here chose instead to file and pursue a “motion to enforce” after the 30-day period had expired, but, as noted, by this time the trial court had no jurisdiction to enter any “orders of enforcement,” nor did it have jurisdiction to modify, alter or amend its dismissal order.

Since we find that the trial court did not have jurisdiction to order enforcement of the alleged oral settlement agreement, we need not address the other issues raised on appeal by Hunter. The other issues raised by Hunter presume that the trial court had jurisdiction to order enforcement of the alleged settlement agreement, and, as a consequence, are not now relevant.

For the above reasons, the orders of the trial court dated June 23, 1987, and November 17, 1987, which purported to “enforce” the dismissal order of July 10, 1986, and directed Hunter to pay Brigando $100,000 and waive its workers’ compensation lien are both reversed.

Orders reversed.

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

      Hence, even if we were to find that the court had retained jurisdiction in this instance, the court’s order to “enforce” was improper in any event, for it is not within the scope of the trial court’s authority in such a situation to “order” a defendant to pay the plaintiff damages, as the trial court here attempted to do. The proper procedure in a case such as this, where the court enters a dismissal order based on an oral settlement, and the defendant refuses to pay, is for the plaintiff to file a lawsuit to enforce the terms of the oral settlement, which is essentially a suit for breach of oral contract. (See Fishburn v. Barker (1988), 165 Ill. App. 3d 229, 518 N.E.2d 1054; Zamouski v. Gerrard (1971), 1 Ill. App. 3d 890, 275 N.E.2d 429.) Some courts have allowed trial courts to “enforce” settlement agreements where the case was still pending before it (McAllister v. Hayes (1988), 165 Ill. App. 3d 426, 519 N.E.2d 71; Sheffield Poly-Glaz, Inc. v. Humboldt Glass (1976), 42 Ill. App. 3d 865, 356 N.E.2d 837), but that was not possible here since the case had been previously dismissed by the trial court and was not pending when Brigando sought to enforce the judgment.


author: JUSTICE SCARIANO

text:
    RICHARD TURNER, Plaintiff-Appellee, v. COSMOPOLITAN NATIONAL BANK, Trustee, Defendant (Sam Lane et al., Defendants-Appellants).
    First District (2nd Division)
    No. 1—87—2958
    Opinion filed March 14, 1989.

      Law Offices of Sherwin Greenberg, of Chicago (Sherwin Greenberg, of counsel), for appellants.
    McNeela & Griffin, Ltd., of Chicago (James R. Dashiell, of counsel), for appellee.
   JUSTICE SCARIANO

delivered the opinion of the court:

A jury returned a verdict for the plaintiff in this personal injury action wherein he charged defendants with negligence in the maintenance of the door of the vestibule at the entrance of a building owned by them.

Defendants raise the following issues on appeal: (1) whether the court erred in vacating its order of summary judgment based upon its determination that the action was time barred; (2) whether the court erred in voiding a release executed by plaintiff in favor of defendants; and (3) whether the court erred in not directing a verdict in favor of defendants and against plaintiff. We affirm.

On November 10, 1974, plaintiff slipped and fell in the vestibule of a multi-unit apartment building owned by defendants. The outer door of the vestibule could not be kept shut and would repeatedly blow open; as a result, water, ice and snow accumulated on the vestibule floor. Plaintiff slipped and fell on this accumulation, thereby fracturing his left fibula just above the ankle.

On November 10, 1976, plaintiff filed this action against Cosmopolitan National Bank as trustee. On December 21, 1976, pursuant to its motion, the bank was dismissed, and plaintiff, after being granted leave, amended his complaint to add Sam and Evelyn Lane as defendants. On March 25, 1982, plaintiff voluntarily dismissed his action and refiled it on May 21, 1982. Defendants filed their answer on October 21, 1982, without asserting therein the statute of limitations as an affirmative defense.

Thereafter, numerous pleadings and motions were filed, voluminous discovery was had, and the case was placed on the trial call for November 13, 1984. Defendants did not raise the issue of the statute of limitations until March 31, 1986, when they filed a motion for summary judgment. By that time the matter had been called for trial nine different times, but had been continued each time at the request of defense counsel. On April 10, 1986, after hearing the arguments of counsel and reviewing the documents filed in support of their respective positions, Judge Berman denied defendants’ motion. Just as the case was to proceed to trial before Judge Bieschke, on January 15, 1987, defendants filed another motion for summary judgment, and the judge granted it on that same day.

Thereafter, counsel for the parties entered into settlement negotiations, pursuant to which defendants made a settlement offer of $3,500. On January 28, 1987, plaintiff’s counsel discussed the offer with his client in a phone conversation, during which plaintiff was advised that outstanding costs and expenses in the approximate amount of $1,800 had been advanced on his behalf in the case and that this sum would have to be reimbursed out of the settlement, but that counsel would waive his fee. As a result of this conversation, it was plaintiff’s counsel’s understanding that he should attempt to negotiate the best possible settlement for his client, but that in any event he had authority to settle the case for $3,500.

Accordingly, plaintiff’s counsel resumed settlement negotiations with the attorney for the defendants, Larry Wikoff. Ultimately, plaintiff’s attorney advised Mr. Wikoff that his client agreed to a settlement of $3,500. On February 10, 1987, plaintiff’s counsel confirmed this in a letter to his client, enclosing a release to be signed by him. On February 13, 1987, when plaintiff’s attorney had not yet received the release signed by his client, he filed a motion to reconsider the court’s awarding summary judgment and scheduled it for a hearing on February 23, 1987. On February 16, 1987, plaintiff’s attorney sent a letter to his client informing him that he had filed the motion to reconsider. On that same day, plaintiff’s counsel received a telephone call from Reverend Smith, a friend of plaintiff, of whom plaintiff had previously informed the attorney. Reverend Smith desired information in behalf of plaintiff concerning the settlement and the background of the case, which plaintiff’s counsel supplied. Reverend Smith indicated to the attorney that plaintiff expected to receive a larger portion of the settlement, but that he would relay the information to plaintiff. On February 17, 1987, plaintiff’s counsel received an executed release signed by plaintiff and witnessed by Lavonne Essex. Plaintiff’s attorney dated the release based upon the accompanying postmark of February 16, 1987, and on February 19, 1987, he delivered the executed release to Mr. Wikoff. Later that same day, plaintiff’s attorney received a telephone call from his client, who said that he had thought he would be receiving a net amount of $2,500 if the case was settled for $3,500. Plaintiff’s attorney promptly advised Mr. Wikoff of problems with the release, and they agreed to reset the hearing on the motion for reconsideration for March 9,1987.

At the hearing on plaintiff’s motion to reconsider on March 9, 1987, defendants brought the signed release to the court’s attention. Judge Bieschke heard testimony from plaintiff, and pursuant to leave of court, both attorneys filed affidavits relating to the circumstances surrounding the execution and delivery of the release..

After Judge Bieschke held a hearing on March 30, 1987, regarding the issues presented by the release and by plaintiff’s motion for reconsideration, he held that fundamental equities required that the release be set aside and predicated the ruling on his opportunity to hear and observe the plaintiff first hand and on plaintiff’s inability to comprehend adequately the nature of the matter before the court.

The court then dictated an opinion from the bench granting plaintiff’s motion for reconsideration and instructed counsel to agree upon a trial date. Trial began on June 1, 1987, and resulted in a jury verdict and judgment in favor of the plaintiff in the sum of $25,000. Defendant’s post-trial motion was filed on July 6, 1987, and denied on August 13,1987. This appeal followed.

I

Defendants argue that plaintiff failed to file his action within the two-year period from the date the cause of action accrued (Ill. Rev. Stat. 1981, ch. 110, par. 13 — 202), asserting that plaintiff incurred his injury on November 10, 1974; that the original action was filed on November 10, 1976; that service of summons was had on defendant Cosmopolitan National Bank on November 15, 1976; that Cosmopolitan was dismissed on December 21, 1976; that plaintiff was given leave that same day to amend by adding Sam and Evelyn Lane; and that on March 25, 1982, plaintiff filed his amended complaint adding the Lanes.

Defendants acknowledge, and the record is clear, that they did not raise the issue of the bar of the statute of limitations by pleading it as an affirmative defense in their answer, but claim instead that they correctly raised the issue by way of a motion for summary judgment, contending that it is permissible to raise an affirmative defense for the first time in such a motion. (Florsheim v. Travelers Indemnity Co. (1979), 75 Ill. App. 3d 298, 393 N.E.2d 1223.) Defendants further maintain that plaintiff’s amended complaint filed on March 25, 1982, did not relate back to the date of the filing of the original suit on November 10, 1976.

Section 2 — 616(d) of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 616(d)) sets forth five requirements that a plaintiff must meet in order for a successor complaint to relate back to the original filing of his or her action: (1) the time prescribed or limited had not expired when the original action was commenced; (2) failure to join the person as a defendant was inadvertent; (3) service of summons was in fact had upon the person; (4) the person knew, within the time that the action may have been brought, that the original action was pending and that it grew out of a transaction involving him or her; and (5) it appears from the original and amended pleading that the cause of action asserted in the amended pleading grew out of the same transaction or occurrence set up in the original pleading. Hoving v. Davies (1987), 159 Ill. App. 3d 106, 512 N.E.2d 729.

Defendants charge that the plaintiff does not meet the requirement of section 2 — 616(d)(4), contending that in order to comply with it, service upon Cosmopolitan National Bank as trustee must have been had within the limitations period. (Foster v. Leong (1985), 139 Ill. App. 3d 492, 487 N.E.2d 995.) The court in Foster held that, in effect, section 2 — 616(d)(4) poses an additional requirement in that suit must not only be filed within the limitations period, but service must be had upon the trustee within that time frame. Defendants argue that since the trustee was not served until November 15, 1976, five days after the limitations period had expired, plaintiff failed to meet the requirement of the statute, and therefore plaintiff may not avail himself of the “relation-back” theory.

Plaintiff, on the other hand, avers that his second complaint, filed in 1982, did in fact relate back to the original filing in 1976, maintaining that section 2 — 616 (Ill. Rev. Stat. 1981, ch. 110, par. 2— 616) is not the applicable law. Rather, plaintiff contends, the pertinent provision of our Code of Civil Procedure is section 2 — 401(b) (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 401(b)), which states as follows:

“Misnomer of a party is not a ground for dismissal but the name of any party may be corrected at any time, before or after judgment, on motion, upon any terms and proof that the court requires.”

We are compelled to disagree. Section 2 — 616(d)(3) was specifically amended to eliminate injustices as a result of the procedure followed in land trust cases. Before that section was amended, a plaintiff was barred from bringing suit unless the beneficiary actually received notice within the limitations period. With the amendment of section 2— 616(d)(3) in 1963, a plaintiff was allowed to bring a subsequent action against a beneficiary as long as the trustee was served within the statutory period. Foster; 139 Ill. App. 3d at 495, citing Ill. Ann. Stat., ch. 110, par. 2 — 616, Historical and Practice Notes, at 529 (SmithHurd 1983).

We find that the requirements of section 2 — 616(d) are quite clear: a plaintiff must meet all five provisos in order to allow the amended complaint to relate back to the original filing of the action. Here, plaintiff failed to serve the trustee within the required period; he therefore does not meet the section 2 — 616(dX4) mandate that the beneficiary of the trust have notice within the limitations period. Consequently, since the amended complaint does not relate back to the original filing, defendants have a valid statute of limitations defense.

However, plaintiff claims that defendants have waived their statute of limitations defense by failing to raise it within the time for pleading, as is specifically required by section 2 — 619, and now seek approval of their attempt to avoid that commandment by introducing it in a motion for summary judgment, a stratagem that does not insulate it from a successful attack. (Midwest Bank & Trust Co. v. Village of Lakewood (1983), 113 Ill. App. 3d 962, 447 N.E.2d 1358.) Plaintiff further contends that defendants should not be allowed to raise an affirmative defense permitted to be asserted by section 2 — 619 (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 619) long after the time for pleading has passed (Romero v. Ciskowski (1985), 137 Ill. App. 3d 529, 484 N.E.2d 1150) and that to hold otherwise renders section 2 — 619 a nullity.

Plaintiff cites well-recognized authority that statutory provisions are to be interpreted to give them meaning if possible; the courts will not assume they are superfluous. (Lopez v. Fitzgerald (1979), 76 Ill. 2d 107, 390 N.E.2d 835.) Nor will the legislature be presumed to have enacted an ineffective law. (Moran v. Katsinas (1959), 16 Ill. 2d 169, 157 N.E.2d 38.) Plaintiff also urges that if there is an apparent conflict between a general statutory provision and a more specific one, the latter provision prevails. People ex rel. Myers v. Pennsylvania R.R. Co. (1960), 19 Ill. 2d 122, 129, 166 N.E.2d 86.

Advancing the foregoing principles for guidance, plaintiff reasons that the dichotomous provisions of the Code of Civil Procedure, i.e., section 2 — 619(a) and section 2 — 1005, can be easily reconciled: section 2 — 1005 is much more general; it obviously deals with summary judgments under any circumstance where it appears that there is no genuine issue of material fact; whereas section 2 — 619 refers only to affirmative defenses which bar a plaintiff’s claims. Section 2 — 619 lists, of course, several specific types of affirmative defenses, including the statute of limitations, as a time bar to the bringing of an action. (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 619(5).) On the other hand, the plaintiff posits, the two sections are irreconcilable if the defenses provided in section 2 — 619 can be raised through section 2 — 1005 long after the time for pleading has passed. Plaintiff asserts that this would be tantamount to holding that section 2 — 1005 has repealed section 2 — 619 by implication, a ruling our courts do not favor except in the clearest possible case. Pennsylvania R.R. Co., 19 Ill. 2d at 129.

Plaintiffs argument that in cases where a conflict exists between seemingly irreconcilable yet pertinent statutory provisions, one general and the other specific, the more specific should prevail, has strong appeal as a respectably authoritative method of resolving the instant dispute, and were it not for the distinctive circumstances we encounter here, we should be inclined to adopt it as dispositive of the issue. However, we believe that procedural matters that are marked by singularly distinguishing characteristics as are found here should be adjudicated on a case-specific basis.

Thus, while the cases are legion wherein it is acknowledged that an affirmative defense may be raised in a motion for summary judgment as well as in the pleadings (Metropolitan Sanitary District v. Pontarelli & Sons, Inc. (1972), 7 Ill. App. 3d 829, 288 N.E.2d 905; Harris Trust & Savings Bank v. Illinois Fair Plan Association (1979), 68 Ill. App. 3d 934, 386 N.E.2d 341; Florsheim v. Travelers Indemnity Co., 75 Ill. App. 3d 298, 393 N.E.2d 1223; Chaplin v. Geiser (1979), 79 Ill. App. 3d 435, 398 N.E.2d 628; Midwest Bank & Trust Co. v. Village of Lakewood, 113 Ill. App. 3d 962, 447 N.E.2d 1358; Romero v. Ciskowski, 137 Ill. App. 3d 529, 484 N.E.2d 1150), we apprehend nothing in our Code of Civil Procedure or in the cases construing its provisions to suggest that a defendant who has the statute of limitations available to him as an affirmative defense to an action brought against him may blithely disdain invoking it in his answer and may further indulge himself in a 3%-year dalliance before he deigns to raise it, in the contemplation that our courts, with an alacrity he does not exact of himself, will serve up the felicitous response — especially where during that 3x/2-year period the parties engaged in some 22 docketed activities, including what appears to be plenary discovery, and where the case has been called for trial nine different times and each time continued at defendant’s request. The law, it is safe to say, no less than equity, aids the vigilant. And although section 1 — 106 of our Code of Civil Procedure requires its provisions “to be liberally construed,” nowhere does it authorize the summary judgment procedure to be employed in gossamer attempts at seeking the Northwest Passage around the hindrances to be found in section 2 — 619, which, being of equal rank and dignity with those in section 2 — 1005, are also to be accorded a liberal construction. These matters are best left to the informed discretion of the trial court, which we find in this case to have been commendably exercised and which we consequently uphold.

II

The second issue raised by defendants is that the court erred in setting aside a release executed by the plaintiff. Settlements between parties of a disputed claim are encouraged and favored by the courts and should be given full force and effect. (Knoll v. Swanson (1968), 92 Ill. App. 2d 398, 234 N.E.2d 543.) In the absence of mistake or fraud, a settlement is conclusive on the parties as to all matters included therein and will not be lightly altered or set aside. (McCracken Contracting Co. v. DePrizio & Associates, Inc. (1984), 122 Ill. App. 3d 680, 462 N.E.2d 682.) However, a unilateral mistake is insufficient to invalidate an agreement compromising and settling a disputed claim. (Barth v. Reagan (1986), 146 Ill. App. 3d 1058, 497 N.E.2d 519.) If a plaintiff is incapable of comprehending a release, it may be set aside. (Florkiewicz v. Gonzalez (1976), 38 Ill. App. 3d 115, 347 N.E.2d 401.) Further, the party urging the invalidity of the release bears the burden of proving that the release should be set aside. Welsh v. Centa (1966), 75 Ill. App. 2d 305, 221 N.E.2d 106.

Defendants claim that the sole reason advanced by plaintiff for setting aside the release is that he did not feel that he was going to net enough of the proceeds for himself. Pointing to the plaintiff’s testimony that his attorney advised him that he would net between $1,700 and $1,800, and that Reverend Smith told him that he would net $2,500, defendants argue that plaintiff’s mistake was unilateral and self-induced. Defendants contend that plaintiff’s inability to read and write are irrelevant to the nature of his mistake or misunderstanding and that plaintiff’s testimony manifests an ability to understand amounts of money, the proportion that he would receive, and the nature of the settlement offers.

Here, the trial judge, having had the opportunity to observe plaintiff and to hear his testimony, and to consider the affidavits of counsel for both parties, could properly conclude that because of plaintiff’s illiteracy and the difficulty he had in communicating with his attorney, made all the more rigorous by his lack of a telephone, plaintiff did not understand the nature of what he had signed. Moreover, plaintiff’s rescission of the release was communicated to defense counsel on the same day that he received it, and concomitantly, the attorneys agreed to reset the hearing date on plaintiff’s motion for reconsideration; no funds changed hands, no stipulation to dismiss was agreed to or presented to the judge, and no order of dismissal was entered. It is clear, then, that defendants placed no reliance on the document, nor do they make any claim that they changed their position in reliance thereon, to their prejudice. Accordingly, we find that the trial court was prodigal in fulfilling its obligation to review all the circumstances surrounding the purported settlement in order to determine its validity, and its determination to set aside plaintiffs release was not against the manifest weight of the evidence. Ainsworth Corp. v. Cenco, Inc. (1982), 107 Ill. App. 3d 435, 439, 437 N.E.2d 817.

Ill

Third, the defendants charge that the trial court erred in failing to direct a verdict in favor of the defendants and against the plaintiff. It is by this time well established and well defined that the standard for directing a verdict is whether all the evidence, when viewed in the aspect most favorable to the opponent, so overwhelmingly favors the movant that no contrary verdict based on the evidence could be reached. Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504.

Defendants complain that plaintiff’s evidence shows nothing more than the existence of a natural accumulation of ice or snow, and that in the absence of a contract, there is no duty on the part of a landlord to remove ice or snow from common areas that are under the landlord’s control. (Lewis v. W.F. Smith & Co. (1979), 71 Ill. App. 3d 1032, 390 N.E.2d 39.) Defendants further assert that plaintiff must in some way show that the defendants caused an unnatural accumulation, or that they aggravated a natural accumulation, and that the condition existed long enough to charge the defendants with notice or knowledge of the condition. (Bansch v. Donnelly (1979), 77 Ill. App. 3d 922, 396 N.E.2d 869.) Finally, defendants claim that they did not have a duty to remove ice or snow tracked in from out-of-doors. Lohan v. Walgreens Co. (1986), 140 Ill. App. 3d 171, 488 N.E.2d 679.

A review of the record here discloses that the trial court devoted studious attention to the facts, carefully weighed them, dutifully observed the demeanor of the witnesses, diligently judged their credibility and correctly declined to direct a verdict in favor of defendants, for there was ample evidence upon which the jury could find that the door leading to the vestibule would constantly blow open, and could not be kept shut, resulting in the constant blowing of water, ice, or snow into the hallway. These elements, the jury found, formed an unnatural accumulation, the result of a broken door, and was not caused by water, ice, or snow being tracked in by residents. Moreover, the problem had been long-standing, and the defendants had at least four persons who were at the building to perform such tasks as rent collection, cleaning, and advising the defendants of any untoward conditions. Defendants, being in control of the premises, had notice and therefore the duty to prevent or remove the unnatural accumulation of ice or snow. (Foster v. Cyrus & Co. (1971), 2 Ill. App. 3d 274, 276 N.E.2d 38.) Defendants fail to meet the Pedrick standard herein.

Accordingly, for all of the foregoing reasons, we affirm the judgment of the circuit court of Cook County.

Affirmed.

EGAN, P.J., and BILANDIC, J., concur.


author: JUSTICE WHITE

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ELLIOT WHITE, a Minor, Defendant-Appellant.
    First District (3rd Division)
    No. 1—87—0235
    Opinion filed March 15, 1989.
    Rehearing denied April 11, 1989.

      Steven Clark and Elizabeth E. Clarke, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Inge Fryklund, Patricia Y. Brown, and Laren E. Brown, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE WHITE

delivered the opinion of the court:

On March 13, 1986, defendant, age 15, was arrested and charged by complaint with the offense of unlawful use of weapons on school grounds. (Ill. Rev. Stat. 1985, ch. 38, par. 24 — l(aX12).) He was prosecuted as an adult under the Criminal Code of 1961 pursuant to exceptions contained in section 2 — 7(6)a. of the Juvenile Court Act (Ill. Rev. Stat. 1985, ch. 37, par. 702 — 7(6Xa) (now Ill. Rev. Stat. 1987, ch. 37, par. 805 — 4(6Xa))), which provides:

“(a) The definition of delinquent minor under Section 2 — 2 of this Act shall not apply to any minor who at the time of an offense was at least 15 years of age and who is charged with murder, aggravated criminal sexual assault, armed robbery when the armed robbery was committed with a firearm, or violation of the provisions of subsection 24 — l(a)(12) of the Criminal Code of 1961, as amended. These charges and all other charges arising out of the same incident shall be prosecuted pursuant to the Criminal Code of 1961, as amended.” (Emphasis added.)

A motion on defendant’s behalf was presented to the trial court asking that his case be remanded to the juvenile court on the basis that this section of the Juvenile Court Act is unconstitutional as applied to the charge of unlawful use of weapons on school grounds. The motion was denied. In a bench trial defendant was found guilty and sentenced to two years’ adult probation, the terms of which included the requirements that he continue his high school education and in addition perform 100 hours of community service.

In his trial, defendant did not deny the act charged, but presented the affirmative defense of necessity, which the court rejected. On appeal he presents three issues for review. The first is whether the 1985 amendment to the Juvenile Court Act adding the offense of unlawful use of weapons on school grounds (Ill. Rev. Stat. 1985, ch. 38, par. 24 — l(a)(12)) to the offenses which require trial of a juvenile under the Criminal Code is unconstitutional. This issue has been fully considered and answered in the negative by the Illinois Supreme Court in People v. M.A. (1988), 124 Ill. 2d 135, 529 N.E.2d 492. We therefore give the same answer here.

The second issue is whether the trial court erred in rejecting defendant’s necessity defense. This issue must also be answered in the negative. The defense of necessity is defined by statute as follows:

“Conduct which would otherwise be an offense is justifiable by reason of necessity if the accused was without blame in occasioning or developing the situation and reasonably believed such conduct was necessary to avoid a public or private injury greater than the injury which might reasonably result from his own conduct.” Ill. Rev. Stat. 1985, ch. 38, par. 7 — 13.

The evidence in this case is not in dispute; it was obtained largely through defendant’s own testimony. He was a freshman at Wendell Phillips High School and lived with his parents in the Wentworth Gardens Housing Project. His father was a security guard who owned a gun as part of his job. During his freshman year, defendant tried to avoid associating with the youths in school who were members of the gangs, but from September to March he had been questioned daily by some gang members about not belonging to a gang. Finally, on March 11, 1986, two gang youths, who had been harassing him, physically assaulted White and stole his lunch ticket. The boys threatened to shoot him if he told anyone about the incident so he kept quiet about what had happened. The following day the same gang members stole defendant’s new leather gloves, pointed a gun at him and threatened to shoot anyone he told about the incident. Defendant testified that he did not tell anyone, particularly his parents, about this incident because he was afraid they would get hurt.

The following day defendant decided to do something to protect himself. He wore a six-pointed star, the symbol of a rival gang, to try to discourage the gang members from harassing him. He also took his father’s gun and some bullets to school in his briefcase. Defendant testified:

“I was going to show it to somebody, hoping it would get back to them *** that I had a gun and maybe they would leave me alone.”

Both the dean of the school and the police officer assigned to the school testified that when they talked with defendant after discovering the gun in his briefcase, he told them he brought the gun to school because the gangs were bothering him.

Even if we take all of defendant’s testimony at face value, it fails to provide the defense of necessity. “[Necessity is viewed as involving the choice between two admitted evils where other optional courses of action are unavailable.” (People v. Krizka (1980), 92 Ill. App. 3d 288, 416 N.E.2d 36.) In People v. Gindorf (1987), 159 Ill. App. 3d 647, 512 N.E.2d 770, the defendant contended “that the trial court erred when it found her guilty of murder and not voluntary manslaughter where it was established by all the expert testimony that she believed that it was necessary to kill her children, albeit an unreasonable belief, to avoid the greater injury to the children of forcing them to continue living, after defendant’s suicide, their lives doomed to be spent in misery and suffering. She argue[d] that she believed her conduct was justified by reason of necessity ***.” (159 Ill. App. 3d at 660.) The court adverted to the statutory definition of necessity (Ill. Rev. Stat. 1985, ch. 38, par. 7 — 13) and rejected this contention, refusing to accept the defendant’s unreasonable belief as a basis for the defense of necessity.

Nothing at trial demonstrates that defendant could have reasonably believed that carrying a loaded revolver was “necessary” to avoid a private injury which he feared. We read the statutory words “reasonably believed” to justify only such otherwise illegal conduct which constitutes the sole reasonable alternative available to the act. (See generally Tiffany & Anderson, Legislating the Necessity Defense in Criminal Law, 52 Den. L.J. 839, 845-46 (1975).) Simple common sense prohibits the conclusion that the sole reasonable alternative available to defendant was to carry a loaded revolver within the City of Chicago in order to protect himself against the threats allegedly made against him.

Defendant cites People v. Unger (1977), 66 Ill. 2d 333, 362 N.E.2d 319, and City of Chicago v. Mayer (1974), 56 Ill. 2d 366, 308 N.E.2d 601, in support of his position that it was necessary for him to bring a gun to school. However, those cases involving the failure of the trial court to give the jury an instruction on the defense of necessity are inapposite. In the instant case there is ample evidence to show that the trier of fact considered defendant’s necessity claim, but found that defendant had failed to establish the affirmative defense of necessity. The court stated:

“There was time for the defendant to use other conceivable methods. This wasn’t a thing where he had to quickly react. It took place over a period of a couple days, even if one believes the defendant.
* * *
Mr. White nor [sic] anybody else is not empowered under the facts to act as his own vigilante squad or to handle it in his own fashion ***.”

The third issue is whether the trial court erred in sentencing the defendant to two years of adult probation. On December 30, 1986, at the time of White’s sentencing, section 2 — 7(6)(c) of the Juvenile Court Act provided that if a minor is convicted as an adult pursuant to the exceptions to the Act set forth in section 2 — 7(6)(a), the court “shall have available any or all dispositions prescribed for that offense pursuant to Chapter V of the Unified Code of Corrections and Article 5 of the Juvenile Court Act.” (Ill. Rev. Stat. 1985, ch. 37, par. 702— 7(6)(c).) He argues that the trial court in sentencing failed to consider any optional disposition available under the Juvenile Court Act and “probably was not aware it could be considered.” Although he failed at the time to object to the sentence and failed to bring any alternative to the attention of the trial court, he urges that we reverse on the basis that the court failed to consider all the available sentencing alternatives. He argues that the sentencing issue is not waived. If we determine that it is waived, he urges this court to review the sentencing on the issue of the ineffectiveness of his counsel at the sentencing hearing.

The law does not permit us to presume, as counsel for appellant does, that the trial court at sentencing was unaware of its powers. Indeed our supreme court has repeatedly emphasized that trial judges’ decisions in regard to sentencing are entitled to great deference. (People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.) Further, a review of the record urged by appellant indicates that the trial judge was appropriately sensitive to the defendant’s youth in his sentencing, incorporating in his order requirements to attend school and perform reasonable public work taken from the Juvenile Court Act (Ill. Rev. Stat. 1985, ch. 37, pars. 705 — 3(2)(j), (2)(n)). In sentencing Elliot White, the judge said to him:

“Now, don’t think this is the end of your life, the fact that you have been convicted of this offense here, because it isn’t. It is the beginning of your life. You’re a very young person, and with the family that you have, the backing that you have and the good things that you have going for you, even though you made this mistake it seems to me that the future is bright for Mr. Elliot White and it is simply up to you to take advantage of the opportunity you have, young man, in order to succeed in your goals. You have a good goal here, wanting to be a carpenter. Certainly we need such people in this society, so I think that you’re the type of person that will probably comply with the type of terms of your probation.”

There is nothing in the record to cause us to conclude that the trial court erred in sentencing the defendant.

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

Affirmed.

FREEMAN, RJ., and RIZZI, J., concur.