author: JUSTICE McNULTY

text:
    HARRY COHEN, d/b/a Bell Iron and Metal Company, Plaintiff-Appellant, v. WOOD BROTHERS STEEL STAMPING COMPANY, Defendant-Appellee.
    First District (5th Division)
    No. 1—90—3141
    Opinion filed December 27, 1991.
    Rehearing denied April 22, 1992.

      Cherry & Flynn, of Chicago (Myron M. Cherry, Peter Flynn, Jeffrey M. Wagner, and Peter C. Vilmos, of counsel), for appellant.
    Sally Clark and Jay R. Kraning, both of Whitted & Kraning, of Chicago, for appellee.
   JUSTICE McNULTY

delivered the opinion of the court:

Plaintiff Harry Cohen, doing business as Bell Iron & Metal Company, appeals from the denial of his petition pursuant to section 2— 1401 of the Code of Civil Procedure which sought to vacate a prior order dismissing his case. (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 1401.) We reverse the decision of the trial court.

On July 3, 1986, plaintiff filed a complaint alleging defendant’s breach of a contract for the sale of goods. On March 17, 1987, the trial court granted defendant’s motion for summary judgment and denied plaintiff’s motion for reconsideration. On September 30, 1988, this court reversed the trial court’s decision and remanded for further proceedings. In its decision, the appellate court held that a valid contract existed between the parties. (Cohen v. Wood Brothers Steel Stamping Co. (1988), 175 Ill. App. 3d 511, 529 N.E.2d 1068.) Upon remand plaintiff filed a motion for summary judgment, and on June 7, 1989, the trial court granted plaintiff’s motion as to all issues except the amount of plaintiff’s damages, and set the case for August 3 for status of discovery. On August 3, 1989, the court extended Cohen’s time to respond to discovery requests until August 24, and set a hearing on the damage issue for October 12, 1989. On September 22, 1989, defendant filed an updated discovery request narrowing its request to only three documents. At this time an agreed order was entered striking the October 13 trial date and resetting the case for status on November 16,1989.

On November 16, 1989, counsel for Cohen did not appear and defendant informed the court that he had not received any information responsive to the outstanding discovery request. With only counsel for Wood Brothers present, the court reset the case for status on January 11, 1990, and imposed February 15 as a cut off for all discovery. On January 11, 1990, counsel for Cohen again did not appear in court. At this time the trial judge set the case for a final hearing on March 22. On March 13, 1990, again with only counsel for Wood Brothers present, the court imposed discovery sanctions, barring Cohen from presenting any evidence as to damages at the final hearing. At the March 22 hearing, Cohen’s case was dismissed with prejudice. (Counsel for Cohen was again absent.)

On May 15, 1990, Timothy Carlmark, counsel for Cohen, resigned from his law firm, Cherry and Flynn, indicating to his superiors that Cohen’s case was set for a final hearing in June 1990. Cherry and Flynn’s review of Cohen’s file did not reveal either the March 13 order granting discovery sanctions, or the March 22 dismissal with prejudice. Upon checking the clerk of the court’s computerized docket, Cherry and Flynn learned that Cohen’s case had been dismissed with prejudice as no evidence had been presented as to damages. Additionally, since the March 22 order did not reference the March 13 grant of sanctions, this appeared to be a dismissal for want of prosecution.

On August 8, 1990, Cohen’s attorneys filed a section 2 — 1401 petition for relief from final judgment. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1401.) Cherry and Flynn learned for the first time of the March 13 order granting sanctions when counsel for Woods Brothers attached a copy of the same to its motion in opposition to the section 2 — 1401 petition. On October 2, 1990, the trial court denied Cohen’s section 2— 1401 petition, citing Cohen’s lack of due diligence in pursuing both the original claim and the post-judgment petition. Cohen appeals this denial of his request for post-judgment relief.

On appeal, plaintiff contends that in denying the section 2— 1401 petition the trial court abused its discretion in applying a strict “due diligence” test instead of looking at whether “substantial justice” would be done if plaintiff’s motion was granted. Section 2 — 1401 of the Illinois Code of Civil Procedure provides a comprehensive statutory procedure for obtaining relief from final orders and judgments after the expiration of 30 days from the entry thereof. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1401.) In order to obtain relief under section 2 — 1401, a petitioner must establish that he has a meritorious claim, and that he exercised due diligence, both in the original action and in filing the section 2 — 1401 petition for relief. Smith v. Airoom, Inc. (1986), 114 Ill. 2d 209, 499 N.E.2d 1381.

It is not disputed that Cohen has a meritorious claim, as this court has already decided that a valid contract existed between the parties, and the trial court subsequently granted summary judgment in Cohen’s favor on all issues except the extent of damages. What is at issue is the alleged lack of diligence of Cohen’s attorneys and the strict due diligence standard adhered to by the trial court. Assuming, arguendo, that due diligence was lacking in the pursuit of both Cohen’s case in chief and his section 2 — 1401 petition (Cohen’s attorney missed four court appearances between August 1989 and August 1990, failed to respond to all discovery requests during this period, and further, failed to file for post-judgment relief until four months from the entry of the order dismissing Cohen’s claim), this court must decide whether the trial court’s denial of post-judgment relief is justified, or whether the interests of justice and fairness require the application of a relaxed due diligence standard and the granting of Cohen’s section 2 — 1401 petition.

There is significant case law which supports the application of a strict due diligence standard and the trial court’s denial of Cohen’s section 2 — 1401 petition. Two recent second district cases, Salazar v. Wiley Sanders Trucking Co. (1991), 216 Ill. App. 3d 863, 576 N.E.2d 552, and Carroll Service Co. v. Schneider (1986), 144 Ill. App. 3d 38, 494 N.E.2d 253, which are factually similar to the case at bar, uphold the application of a strict due diligence standard. In Caroll Service, the trial court found that defendant had a meritorious defense, had exercised due diligence in the preparation of the section 2 — 1401 petition, but had not exercised due diligence in the prosecution of his lawsuit (he did not file an answer within 30 days of the complaint, and a default judgment was entered). The Caroll court attributed the negligence of the attorney to the defendant and refused to grant the section 2 — 1401 petition. In Salazar, plaintiffs’ complaint was filed in July 1988 and dismissed for want of prosecution in November 1988. (Plaintiffs’ attorney failed to file an amended complaint and failed to appear at the hearing on the motion to dismiss.) In December of 1988, plaintiffs’ attorney filed a section 2— 1301(e) motion (Ill. Rev. Stat. 1987, ch. 110, 2 — 1301(e)), which was never motioned up for hearing. In July 1989, this attorney resigned, claiming that he suffered from a mental illness, and advised the other members of his law firm that plaintiffs’ case was still pending. Plaintiffs filed a section 2 — 1401 petition to vacate the dismissal for want of prosecution in April 1990, claiming that their attorney had misled them as to the status of their case. The Second District Appellate Court upheld the trial court’s denial of plaintiffs’ post-judgment petition and its determination that a plaintiff is bound by the negligence of his attorneys (citing O’Malley v. Powell (1990), 202 Ill. App. 3d 529, 559 N.E.2d 981). The Salazar court also found that plaintiffs did not use due diligence in filing their section 2 — 1401 petition until nine months after their attorney resigned.

Other recent case law, most notably several first district opinions, supports the application of a relaxed due diligence standard when required by the interests of justice and fairness. In Yates v. Barnaby’s of Northbrook (1991), 218 Ill. App. 3d 128, 578 N.E.2d 174, plaintiff filed her personal injury suit in February 1987. Discovery was requested in April 1987, sanctions for noncompliance were requested in October 1987, plaintiff’s original attorney requested leave to withdraw in March 1988, and plaintiff’s case was dismissed with prejudice in April 1988 at an ex parte hearing. In July 1988 (three months after dismissal), plaintiff’s substitute counsel filed a section 2 — 1401 petition, and in August 1989, plaintiff’s claim was reinstated as required by justice and fairness, despite a finding of negligence and lack of due diligence on the part of plaintiff’s counsel. In affirming the trial court’s grant of plaintiff’s section 2 — 1401 petition, the appellate court agreed with the trial court, which found that though due diligence was not present, largely due to lack of cooperation between the plaintiff’s original and substitute counsel, justice and fairness required that the case be reinstated. In its opinion, the appellate court relied on a previous first district case, Resto v. Walker (1978), 66 Ill. App. 3d 733, 383 N.E.2d 1361, which noted that since petitions to vacate are addressed to the equitable powers of the court, “courts have not considered themselves strictly bound by precedent [citation], and have held, in the interest of justice and fairness, that these requirements need not be viewed in a vacuum [citation], nor must they invariably be enforced. *** In this regard, it is important to note the totality of circumstances attending the case, both before and after the rendition of judgment.” Resto, 66 Ill. App. 3d at 739, 383 N.E.2d at 1366.

Another more recent first district case, Kalan v. Palast (1991), 220 Ill. App. 3d 805 expressed concern that plaintiff’s attorney’s firm should have been more diligent, but nevertheless upheld the granting of a section 2 — 1401 petition in spite of an attorney’s negligence in failing to comply with discovery requests and appear at plaintiff’s dismissal hearing. (The attorney pleaded that he was suffering from alcoholism.)

In Zee Jay, Inc. v. Illinois Insurance Guaranty Fund (1990), 194 Ill. App. 3d 1098, 552 N.E.2d 1027, another first district case, the appellate court upheld the trial court’s grant of a section 2 — 1401 petition based on equitable considerations and in the absence of due diligence in both the case in chief and the post-judgment petition. Although the court noted that section 2 — 1401 relief will not be allowed to avoid a judgment resulting from a party’s or his attorney’s negligence or lack of due diligence (citing Kaput v. Hoey (1988), 124 Ill. 2d 370, 530 N.E.2d 230), it also stated that such relief involves the equitable powers of the court, and added that the court must liberally construe the scope of relief available to prevent an unjust result. (Zee Jay, 194 Ill. App. 3d at 1103, 552 N.E.2d at 1030.) In this breach of insurance contract case, plaintiff failed to comply with discovery requests, orders, and warnings of the court from January 1986 to July 1987. (Plaintiff’s original counsel died in September 1986.) In September 1987, the trial court dismissed plaintiff’s claim with prejudice. In August 1988, the trial court vacated the “with prejudice” language and granted plaintiff’s section 2 — 1401 petition. In relaxing the due diligence requirements and allowing plaintiff’s request for post-judgment relief, the trial court noted that in situations where the basis for dismissal is discovery violations, its practice is to dismiss with leave to refile under section 13 — 217. (Ill. Rev. Stat. 1987, ch. 110, par. 13— 217.) The Zee Jay court also determined that the defendant would not be prejudiced by the reinstatement of plaintiff’s actions. In its opinion, this court relied on the decision in Kubian v. Labinsky (1988), 178 Ill. App. 3d 191, 533 N.E.2d 22, which held that dismissal with prejudice is an inappropriate initial sanction for failure to comply with discovery. See also In re Application of the County Treasurer & Ex-Officio County Collector (1983), 114 Ill. App. 3d 921, 924, 449 N.E.2d 879, in which the first district found that a party has the right to be heard on the issue of damages even in the absence of due diligence. Furthermore, this opinion goes on to note that the “[ijnterests of fairness and justice require that a party who has a meritorious defense to a major portion of the award should be heard even though the requirements of due diligence are not met.”

A review of these recent appellate court decisions seems to reveal a split between the first and second districts as to whether the due diligence standard should ever be relaxed. Reliance on the second district authority would support a strict application of the due diligence rule and require our affirmance of the denial of Cohen’s petition for relief from judgment. However, we decline to follow this approach and alternatively rely on the ample authority provided by first district jurisprudence to relax the due diligence standard simply to allow Cohen the opportunity to prove up the damages for a case which he has already won. While we do not hold that the denial of Cohen’s petition was an abuse of discretion, we nevertheless find that the interests of fairness and substantial justice compel the exercise of the equitable powers of this court. The facts at bar involve not a case of ordinary negligence, but an extraordinary situation where a young attorney abruptly and unexplicably abandoned both his client and his law firm without attending court and without adequately documenting the files for which he retained responsibility. To charge a plaintiff with the harsh results of such aberrant and unanticipated conduct on the part of his attorney would be a mockery of the demands of substantial justice.

For the above reasons, we reverse the judgment of the circuit court denying plaintiff’s section 2 — 1401 petition. We also vacate the March 13, 1990, order barring discovery, as such order was premature, and to do otherwise would be to grant plaintiff a hollow victory.

Reversed in part; vacated in part and remanded.

MURRAY and GORDON, JJ., concur.


source: Caselaw Access Project

author: JUSTICE MURRAY

license: Public Domain

text:
    INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA, Plaintiff and Counterdefendant-Appellant, v. PROTECTIVE INSURANCE COMPANY, Defendant and Counterplaintiff-Appellee (John Reid et al., Defendants).
    First District (5th Division)
    No. 1—90—3326
    Opinion filed March 13, 1992.

      Clausen, Miller, Gorman, Caffrey & Witous, P.C., of Chicago (James T. Ferrini, John F. Brennan, and Edward M. Kay, of counsel), for appellant.
    McKenna, Storer, Rowe, White & Farrug, of Chicago (James R DeNardo, Richard M. Clark, and Christine L. Olson, of counsel), for appellee.
   JUSTICE MURRAY

delivered the opinion of the court:

The Insurance Company of the State of Pennsylvania (Pennsylvania) appeals from an order of the circuit court which granted summary judgment in favor of Protective Insurance Company (Protective) and awarded Protective $1 million in an insurance coverage dispute. For reasons that follow, we affirm the order of the circuit court.

John Reid and Sandra Reid (the Reids), doing business as R&D Trucking, owned a Hendrickson tractor, which was leased to Hamilton Trucking Company (Hamilton) for 30 days pursuant to an agreement dated March 24, 1986. The lease provided that, in addition to the tractor, the Reids and R&D Trucking were to supply Hamilton with a driver for trips contracted for; that these drivers were employees of the Reids and R&D Trucking and under their exclusive direction and control; that Hamilton’s placards were to be returned at the conclusion of any trip; and that the Reids were to carry adequate insurance, including “bobtail insurance.”

On April 4, 1986, John Reid (Reid), while operating the Hendrickson tractor leased to Hamilton, was involved in a vehicular accident with a car driven by Dorothy Caballero (Caballero). According to Reid’s deposition, the accident occurred on a Friday, not while Reid was transporting goods for Hamilton, but when Reid was taking the tractor for servicing in preparation for a trip scheduled for the following Monday. At the time of the accident, however, Hamilton’s identification label and ICC permit numbers were displayed on the tractor.

On May 2, 1986, Caballero filed a negligence action in the circuit court of Cook County naming Hamilton and John Reid as defendants. In this initial complaint Caballero alleged that Reid was the employee and agent of Hamilton and that as a result of their negligent acts or omissions she was injured. The complaint was amended to include additional defendants, including John and Sandra Reid, d/b/a R&D Trucking. In this amended complaint Caballero alleged that at the time of the accident Reid was the employee and agent of both Hamilton and R&D Trucking. The amended complaint further alleged that Caballero had been injured as a result of various negligent acts or omissions of both of these defendants.

Protective insured the Reids and R&D Trucking under a policy of insurance, policy No. SFB41723, effective October 3, 1985, through October 3, 1987. This policy provided what is known as “bobtail” insurance, which covered the Hendrickson tractor owned by the Reids and R&D Trucking. The policy excluded coverage “(1) [wjhile the vehicle is used to carry property for any business; (2) [wjhile the insured vehicle is being used in the business of any person or organization to whom the vehicle is rented or while on use for such purpose.”

On May 1, 1986, prior to the filing of the Caballero complaint, Protective notified Hamilton of the accident and explained that because the accident occurred at a time when Hamilton’s identification and ICC permit numbers were displayed on the leased tractor, Hamilton was obligated under Illinois law to provide insurance coverage. Thus, Protective tendered the defense of Reid to Hamilton and its insurance carrier. A second tender of defense was made on June 19, 1986, after Caballero filed her complaint.

Pennsylvania insured Hamilton under a policy of insurance, i.e., policy No. TA9980698 effective from March 1, 1985, through March 1, 1987, and pursuant to this policy it undertook the defense of Hamilton in the negligence action. Pennsylvania’s policy provided that an insured included:

“4. The owner or any one else from whom you hire or borrow a covered auto which is not a trailer is an insured while the covered auto:
a. is being used exclusively in your business; and
b. is being used pursuant to operating rights granted to you by a public authority.”

On October 7, 1986, Pennsylvania rejected the tender of defense, refusing to defend Reid based upon its belief that Reid was not an insured under the terms of its policy with Hamilton. Consequently, Protective undertook the defense of the Reids and R&D Trucking. It wasn’t until September 16, 1988, that Pennsylvania filed a declaratory judgment action, seeking a declaration of its rights and obligations as to the Reids and R&D Trucking under the terms of its policy of insurance with Hamilton.

On December 9, 1988, Hamilton moved to stay the declaratory judgment proceedings on the basis that the declaratory judgment action would address facts upon which recovery was predicated in the underlying action and that these issues should not be resolved in the declaratory judgment action to the detriment of the parties in the underlying suit. This motion was apparently not ruled upon, and while the declaratory action still pended, the underlying action was settled. Pennsylvania contributed $3 million on behalf of Hamilton, and Caballero signed a release for Hamilton and others dated June 19, 1989. Protective contributed $1 million on behalf of the Reids and R&D Trucking, and Caballero signed a release for them dated July 19, 1989.

On October 16, 1989, Protective filed a counterclaim in the declaratory action, alleging that Reid was an insured under Pennsylvania’s policy and that, at the time of the accident, the tractor was being used exclusively in Hamilton’s business. On June 19, 1990, Protective moved for summary judgment on its counterclaim for declaratory relief. At this time Protective raised the question of whether Pennsylvania should be estopped from denying that Reid and R&D Trucking were covered under its policy due to Pennsylvania’s failure to fulfil its obligation to provide for the defense of Reid and R&D Trucking in the underlying action.

At a hearing on the summary judgment motion, the circuit court found that the alleged policy defenses raised a “myriad of factual issues” which would preclude summary judgment on the question of whether the Reids and R&D Trucking were covered under the terms of Pennsylvania’s policy. Nevertheless, the circuit court granted Protective’s motion for summary judgment based upon its determination that Pennsylvania was estopped from denying coverage because it had failed to fulfil its obligations by either raising its various defenses to coverage in a promptly filed declaratory action or defending under a reservation of rights. Judgment was entered in Protective’s favor in the amount of $1 million, the amount Protective had contributed to the settlement of the underlying suit. The circuit court also included a Supreme Court Rule 304(a) ruling in its order. 134 Ill. 2d R. 304(a).

Pennsylvania appeals this order, contending that estoppel does not apply in this case because (1) a declaratory judgment action was brought in a timely fashion in that it was filed prior to settlement of the underlying action; (2) the declaratory action was premature prior to the resolution of the underlying suit due to the commonality of issues; and (3) Pennsylvania could not have assumed the defense of Reid and R&D Trucking due to a conflict of interest. Consequently, Pennsylvania contends that this court should reverse the decision of the trial court and remand for a hearing on the question of whether Reid and R&D Trucking were covered insureds under the terms of the policy with Hamilton.

Protective denies that Pennsylvania’s declaratory judgment action was timely filed or that the declaratory action was premature, nor does Protective agree that a conflict of interest existed which precluded Pennsylvania from representing Reid. Thus, Protective argues that the trial court properly granted summary judgment on the basis of estoppel. Alternatively, however, Protective argues that this court could determine that, under the circumstances of the case, Pennsylvania’s policy of insurance provided coverage for Reid and the Protective policy did not, and affirm the trial court on that basis.

For the following reasons, we affirm the order of the trial court.

It is well-established law in Illinois that an insurer’s duty to defend an action brought against an insured is triggered when a filed complaint alleges facts which are within, or potentially within, the coverage of the policy, without regard to whether or not the allegations are groundless, false or even fraudulent. (Conway v. Country Casualty Insurance Co. (1982), 92 Ill. 2d 388, 442 N.E.2d 245; Thornton v. Paul (1978), 74 Ill. 2d 132, 384 N.E.2d 335; Central Mutual Insurance Co. v. Kammerling (1991), 212 Ill. App. 3d 744, 571 N.E.2d 806.) If an insurer is uncertain as to its duty to defend, it must either seek a declaratory judgment as to its obligations and rights prior to trial or settlement of the underlying action or defend under a reservation of rights, or both. (Fidelity & Casualty Co. v. Envirodyne Engineers, Inc. (1983), 122 Ill. App. 3d 301, 461 N.E.2d 471.) If the insurer does not elect one of these courses of action and refuses to defend an insured who ultimately incurs an adverse judgment, the insurer will be estopped from raising policy exclusions or noncoverage as a defense in any subsequent action brought to recover policy proceeds. See Central Mutual Insurance v. Kammerling, 212 Ill. App. 3d at 748; Fidelity Casualty Co. v. Envirodyne Engineers, Inc., 122 Ill. App. 3d at 306.

Both parties concede these settled principles of law. However, Pennsylvania contends that it complied with the letter of the law in that it filed a declaratory judgment action prior to the time that the underlying action was settled. Therefore, it argues, estoppel should not apply. In support of this position, Pennsylvania cites this court’s decision in Unigard Insurance Co. v. Whitso, Inc. (1990), 195 Ill. App. 3d 740, 553 N.E.2d 59, for the proposition that estoppel will not apply where the insurer brings a declaratory judgment action any time prior to the settlement of the underlying action. We do not agree with this interpretation of the Unigard decision.

In Unigard, Gutierrez, an employee of Whitso, was injured in 1981 during the course of employment. Gutierrez filed suit against two separate manufacturers of the machine involved in the accident and the manufacturers, in turn, sued Whitso for indemnity and contribution. Whitso was insured by three different carriers. The worker’s compensation carrier, Casualty Insurance Company, assumed the defense of Whitso in the third-party actions. In September 1985 American States, the excess liability carrier, notified Unigard, which insured Whitso under a comprehensive business liability policy, “to assume its duties pursuant to its policy, namely to ‘pay any third-party judgment which may or might be entered’ against Whitso.” (195 Ill. App. 3d at 741.) Unigard responded by denying coverage, noting that a provision within its policy with Whitso excluded coverage for liability based on bodily injury to any employee arising out of employment and indemnification for damages arising out of such injuries. Thus, the underlying complaint, on its face, failed to allege facts which would bring the case within the policy’s coverage.

In November 1986 Unigard was notified of settlement negotiations and was asked to participate. Unigard then filed a declaratory judgment action in January 1987, seeking a declaration of its obligation to contribute based upon its policy exclusions. In their answer to the declaratory action, Whitso, American and Gutierrez admitted that the injury occurred in the course of employment, but they contested the applicability of Unigard’s policy exclusion to third-party contribution actions. In April 1987 Gutierrez’ underlying suit was settled, and in April 1988 Unigard was granted summary judgment in its declaratory action. The award of summary judgment was affirmed on appeal.

The circumstances in Unigard are quite different from the circumstances in the case at bar. In Unigard the facts alleged in the underlying complaint, which are what determines an insurer’s duty to defend the insured, did not fall within, or even potentially within, the policy’s coverage. Therefore, Unigard had no duty to defend. Furthermore, in Unigard the insurer was never tendered the defense of the insured, but rather was only asked to contribute to the settlement of third-party claims. Under these circumstances, a declaratory action to determine one’s coverage liability must be delayed until after the underlying complaint has been resolved. See Bituminous Casualty Corp. v. Fulkerson (1991), 212 Ill. App. 3d 556, 571 N.E.2d 256 (an insurer’s declaratory action to determine its duty to indemnify its insured is premature if brought prior to the determination of the insured’s liability).

In the present case the underlying complaint, as amended, alleged that at the time of the accident Reid was an employee of Hamilton and/or R&D Trucking, that he negligently operated a tractor which was owned by Sandra Reid and R&D Trucking, and that the tractor was leased by Hamilton and displayed Hamilton’s identification and ICC permit number. According to the allegations in the complaint and considering the policy definition of an “insured” (cited above), the Reids and R&D Trucking were all insureds, or potentially insureds, within the terms of the policy Pennsylvania provided to Hamilton. Therefore, Pennsylvania became obligated to defend the Reids and R&D Trucking, or provide for their defense, despite the possibility they might later be found not to be insureds. (See Associated Indemnity Co. v. Insurance Co. of North America (1979), 68 Ill. App. 3d 807, 386 N.E.2d 529.) The duty to defend is broader than the duty to pay. Therefore, an insurer can justifiably refuse to defend only when the allegations of the complaint clearly show on their face that the claim is beyond the coverage of the policy. (Waste Management, Inc. v. International Surplus Lines Insurance Co. (1991), 144 Ill. 2d 178, 579 N.E.2d 322.) Any doubt will be resolved in favor of the insured. Even if the underlying complaint alleges several theories of recovery against the insured, the duty to defend will arise even if only one theory is within the potential coverage of the policy. United States Fidelity & Guaranty Co. v. Wilkin Insulation Co. (1991), 144 Ill. 2d 64, 578 N.E.2d 926.

It is important to note that due to the fact that Hamilton’s ICC permit number was displayed on the tractor, the question of whether the tractor was being used exclusively in Hamilton’s business at the time of the accident was not an issue in the underlying action. (See Schedler v. Rowley Interstate Transportation Co. (1977), 68 Ill. 2d 7, 368 N.E.2d 1287; Occidental Fire & Casualty Co. v. Padgett (1983), 113 Ill. App. 3d 215, 446 N.E.2d 937 (pursuant to the regulatory scheme set forth by the Interstate Commerce Act, a carrier-lessee whose identification and ICC permit number appear on the leased equipment will be held vicariously liable to the public for the negligent operation of the leased equipment without regard to whether at the time in question the equipment was being used in the business of the lessee).) Therefore, Reid’s agency and scope of employment at the time of the accident were not at issue in the underlying action. These issues would more properly be determined in a suit for indemnification or contribution brought against Reid’s insurer after liability was determined in the underlying action.

But Pennsylvania’s obligation to defend was not contingent upon these matters. Once the potential for coverage existed, the duty to defend was imposed. (Casualty Insurance Co. v. Northbrook Property & Casualty Insurance Co. (1986), 150 Ill. App. 3d 472, 501 N.E.2d 812.) Because Pennsylvania clearly had a duty to defend the Reids and R&D Trucking, it should have done so under a reservation of rights. It then could have brought a timely declaratory judgment action to determine the extent of its liability under the terms of its policy of insurance with Hamilton.

We agree with the trial court that Pennsylvania’s obligation was not satisfied by its defense of Hamilton and the filing of a declaratory judgment action more than two years after refusing the tender of defense for Reid. (See Central Mutual Insurance v. Kammerling, 212 Ill. App. 3d at 748-50 (when no justifiable reason exists for the delay in bringing a declaratory judgment action, estoppel will apply even though the declaratory action is filed prior to settlement of the underlying action).) When the duty to defend is clear, an insurer cannot avoid its obligation and then insulate itself from the imposition of estoppel by an eleventh-hour filing of a declaratory judgment action. Nor can Pennsylvania benefit from the fact that Reid’s insurance company fortuitously took over Hamilton’s obligation to defend. See Casualty Insurance Co. v. Northbrook Property & Casualty Insurance Co., 150 Ill. App. 3d 472, 501 N.E.2d 812.

Pennsylvania attempts to justify its refusal to defend and its delay in bringing its declaratory judgment action by arguing (1) that a declaratory action would have been premature and (2) that a conflict of interest existed. We find neither of these arguments to have merit.

A declaratory action to determine an insurer’s duty to defend will be deemed premature if it must look beyond the allegations of the complaint and if issues crucial to the underlying action would be decided, thereby precluding one or more theories of recovery. (Thornton v. Paul, 74 Ill. 2d 132, 384 N.E.2d 335; Maryland Casualty Co. v. Peppers (1976), 64 Ill. 2d 187, 355 N.E.2d 24; State Farm Fire & Casualty Co. v. Moore (1981), 103 Ill. App. 3d 250, 430 N.E.2d 641.) If an insurer must go beyond the allegations of the complaint to deny coverage, the insurer may not be permitted to obtain a ruling in a declaratory judgment proceeding prior to the conclusion of the underlying action. However, where, as here, the facts alleged in the complaint bring the matter potentially -within the policy’s coverage, the duty to defend cannot be denied. As a result of that breach of duty, the insurer will be estopped from denying coverage in any other ancillary proceedings.

We are also unpersuaded by Pennsylvania’s contention that estoppel should not be applied because a conflict of interest existed between it and Reid. In cases where a conflict of interest exists between the insurer and the insured, the insurer’s obligation to defend is not negated. Although the insurer would not be permitted to participate in the defense because of the conflict, it must fulfil its obligation to provide a defense by reimbursing the insured for the cost of independent counsel. (O’Bannon v. Northern Petrochemical Co. (1983), 113 Ill. App. 3d 734, 447 N.E.2d 985.) By the use of the term “reimbursement” one does not mean that the insurer can withhold payment until the underlying action is over. Reimbursement for defense costs should be provided as they are incurred. (Gibraltar Casualty Co. v. Sargent & Lundy (1990), 214 Ill. App. 3d 768.) Therefore, we see no reason to allow an insurer, whose obligation to provide a defense is clear, to avoid the application of estoppel simply because it later claims a conflict of interest existed, especially when this basis for denying the insured a defense was not told to the insured and the insurer made no offer to advance funds to pay for alternative representation in an effort to meet its obligation to provide a defense.

For all the reasons stated above, we find that the trial court properly granted summary judgment in favor of Protective and entered judgment against Pennsylvania based upon the equitable principle of estoppel. We affirm the order of the circuit court and the award of $1 million to Protective.

Affirmed.

McNULTY, P.J., and GORDON, J., concur.


author: JUSTICE CAMPBELL

text:
      In re ESTATE OF VICTOR J. JULIAN, Deceased (Victoria Julian Fisher et al., Petitioners-Appellants, v. Kenneth A. Julian et al., Respondents-Appellees).
    First District (1st Division)
    No. 1—90—0325
    Opinion filed December 16, 1991.
    Rehearing denied April 9, 1992.

      Piccione, Keeley & Associates, Ltd., of Wheaton, and William J. Harte, Ltd., of Chicago (John J. Piccione, Patrick C. Keeley, Mark W. Tader, and William J. Harte, of counsel), for appellants Victoria Julian Fisher and John Julian.
    Torshen, Schoenfield & Spreyer, Ltd., of Chicago (Jerome H. Torshen, Abigail K. Spreyer, and James K. Genden, of counsel), for appellant Gracemarie Julian Soper.
    James E. Dahl & Associates, of Chicago (Walter P. Dahl, of counsel), for appellee Kenneth A. Julian.
    David A. Novoselsky & Associates, of Chicago (David A. Novoselsky and Linda A. Bryceland, of counsel), for appellee Anthony Rodia.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Petitioners Victoria Julian Fisher, John A. Julian, Gwendolyn Julian and Gracemarie Julian Soper appeal orders of the circuit court of Cook County dismissing counts I through III of a second amended petition to contest the will of decedent Victor J. Julian. The petition alleged that: (1) respondent Kenneth A. Julian exercised undue influence over Victor; (2) assets listed in the second article of the will are part of the residuary estate; and (3) a corporation known as the Julian Electric Service (Julian Electric) became the property of Kenneth under an agreement between Kenneth and Victor signed in 1986. Respondent Anthony Rodia, the executor of decedent’s estate, has filed a brief in support of affirmance. For the reasons which follow, we affirm the dismissal of count I, reverse the dismissal of counts II and III and remand for further proceedings.

Victor J. Julian died on July 31, 1988. The decedent was survived by five adult children: Victoria Julian Fisher, Gracemarie Julian So-per, John A. Julian, Gwendolyn Julian and Kenneth A. Julian. On September 2, 1988, a document dated May 13, 1988, was admitted to the probate division of the circuit court of Cook County as the decedent’s last will and testament. The first three articles of that document provide as follows:

“FIRST: I order and direct my Executor, hereinafter named, to pay all my just debts, funeral expenses, charges and costs of administering my Estate.
SECOND: All the rest, residue and remainder of the property, real, personal or mixed, of whatsoever character and wheresoever situated, of which I may die seized or possessed of, or which I may own or have any interest in at the time of death, I give, devise and bequeath as follows:
To my son, KENNETH A. JULIAN: My business known as Julian Electric Service and Engineering Inc., an Illinois Corporation, and operating presently at 701 Blackhawk Drive — Westmont, Illinois, and 10 North Beach Street — La Grange, Illinois, which includes all assets, inventories, cash, but not limited to this and my Real Estate now housing Julian Electric Service and Engineering, Inc., and located at 701 Blackhawk Drive— Westmont, Illinois, and 10 North Beach Street — La Grange, Illinois.
To my grandchildren whose names are stated below: Each $25,000. in cash: MICHAEL KOVANDA, JAMES KOVANDA, GREGORY KOVANDA, MICHELLE KOVANDA, VICTORIA JULIAN, JOHN JULIAN, KENNETH JULIAN, ANTHONY JULIAN, SHERI JULIAN, CHRISTOPHER JULIAN, CELESTE FISHER, JOANN FISHER, JULIE ANN FISHER, GREGORY FISHER AND JENNIFER SQUIRE.
To my friend and companion, BERNICE REESE, the following:
1) My real estate and all furnishings and personal property therein located at 14511 Carrolton Road — Rockville, Maryland for as long as she lives and with full and absolute control during her lifetime. Upon her death, the real estate shall be given equally to the following: To my son, JOHN JULIAN, to my daughter, GRACE MARIE SOPER, to my daughter, VICTORIA FISHER, to my daughter, GWENDOLYN JULIAN.
2) The entire remaining balance of a Bank Account at the Sandy Springs Savings National Bank in Rockville, Maryland.
3) My Condominium, and all furnishings and personal property therein, located at 915 Ocean Shore Boulevard, Ormand Beach, Florida for as long as she lives and with full and absolute control during her lifetime. Upon her death, the real estate shall be given equally to the following: To my son, JOHN JULIAN, to my daughter, GRACE MARIE SOPER, to my daughter, VICTORIA FISHER, to my daughter, GWENDOLYN JULIAN.
THIRD: All the rest, residue and remainder of the property, real, personal or mixed, of whatsoever character and wheresoever situated, of which I may die seized or possessed of, or which I may own or have any interest in at the time of death, I give, devise and bequeath as follows: To my son, JOHN JULIAN — to my daughter, GRACE MARIE SOPER — to my daughter, VICTORIA FISHER-to my daughter, GWENDOLYN JULIAN.”

On September 27, 1988, petitioners filed their petition to contest the will, alleging that the will was the result of undue influence exercised upon the decedent by his son, respondent Kenneth. In turn, Kenneth moved to strike certain paragraphs of the petition and for summary judgment; the motion to strike was denied and there was no resolution of the motion for summary judgment.

On February 24, 1989, petitioners filed an amended petition to contest the will and for a construction of the will. Count I of the amended petition realleged undue influence, adding allegations concerning the existence of a fiduciary relationship between the decedent and Kenneth. Count II alleged that both articles second and third created residuary estates which would bear the burden of estate administration costs under Illinois law. Count III alleged that title to the Julian Electric Service had passed to Kenneth under the terms of a document dated October 16, 1986, signed by the decedent and Kenneth and were therefore nonprobate assets subject to estate taxes and administration costs under the doctrine of “equitable apportionment.”

The document referred to in count III states that decedent, the sole shareholder of Julian Electric, Inc., transferred, assigned and sold all the shares of the company to Kenneth in return for Kenneth’s promise to devote his time and efforts to the company and to refrain from obtaining an interest in any competitor. The document also provided that voting rights would remain with decedent until his death, but that dividends would be split equally between decedent and Kenneth. The document further provided that if the shares could not be so transferred, decedent would hold the shares in trust for Kenneth for the life of decedent.

On May 23, 1989, respondent Rodia filed an answer to the amended petition. In this answer, respondent Rodia, as executor, stated that he interpreted article second as containing specific devises outside the residuary estate. Rodia also denied any fiduciary relationship between Kenneth and the decedent. Finally, Rodia stated that he drafted the 1986 agreement, but denied knowledge of whether Kenneth and the decedent entered into that agreement.

Kenneth moved to dismiss the amended petition. Kenneth argued that: count I failed to allege specific facts which would support a claim for undue influence; count II failed because article second of the will contained specific devises and was therefore not a residuary clause; and count III failed because the shares of stock in the Julian Electric in question had never been transferred to Kenneth, had been included in the inventory of the estate and therefore passed under the terms of the will and were probate assets. The trial court granted the motion to dismiss as to count I on July 15, 1989, but granted petitioners leave to file an amended count I.

Petitioners filed a second amended petition on August 8, 1989. Counts II and III of this petition were identical to those in the first amended petition.

Amended count I alleged that Kenneth, as decedent’s son and the primary manager of Julian Electric Service, stood in a fiduciary relationship of trust and confidence with decedent. Count I then alleged that during the three-year period before his death, decedent was unable to operate Julian Electric due to advanced age as well as impaired health and memory. Consequently, it was alleged that Kenneth’s management of the business was indispensable to its continued profitability. Julian Electric was alleged to be decedent’s main source of income; thus, decedent was alleged to be dependent on Kenneth’s management of the business. During this period, Kenneth was allegedly decedent’s main source of social and intellectual outlet, particularly following the death of decedent’s wife in 1986. Count I further alleged that Kenneth overcame decedent’s free will through repeated threats and demands that unless decedent gave Kenneth control over the business and assured that Kenneth would retain control by transferring ownership of the business to Kenneth by contract or will, Kenneth would terminate his own employment at Julian Electric. Count I alleged that these threats and demands caused decedent to draft both a May 10, 1986, will and the contested May 13, 1988, will. Finally, count I alleged that Kenneth was a substantial and disproportionate beneficiary of the 1988 will.

On September 5, 1989, respondent Rodia moved to dismiss count I of the second amended petition. Kenneth later filed a motion to dismiss the petition in its entirety. On September 15, 1989, the trial court granted the motions to dismiss as to count I only. Petitioners attempted to appeal this order, but the appeal was dismissed without prejudice by this court as the order was not final and appealable.

On December 18, 1989, the trial court heard argument on the motion to dismiss counts II and III. At the conclusion of that hearing the trial court denied the pending motions for summary judgment on count III and judgment on the pleadings on count II, but granted the motion to dismiss counts II and III. The report of proceedings indicates that the trial court dismissed count II by determining that the “four corners” of the document indicated that article second was not a residuary clause. The report of proceedings does not indicate the trial court’s rationale for dismissing count III. On January 10, 1990, the trial court entered an order making the dismissal of counts II and III final and appealable under Illinois Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)). Petitioners timely filed their notices of appeal as to counts II and III. On March 28, 1990, the trial court granted Kenneth’s motion to enter a Rule 304(a) finding as to the dismissal of count I. On May 21, 1990, this court permitted Victoria Julian Fisher and John A. Julian to amend their notice of appeal to include the dismissal of count I, pursuant to Rule 303(e) (134 Ill. 2d R. 303(e)).

Initially, we note that this appeal challenges the dismissal of a petition for failure to state a claim. The Illinois Code of Civil Procedure applies to a will contest (Ill. Rev. Stat. 1989, ch. IIOV2, par. 1 — 6); therefore, the rules governing the review of a dismissal under section 2 — 615 of the Code (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 615) apply to this appeal.

A trial court should dismiss a cause of action on the pleadings only if it is clearly apparent that no set of facts can be proven which will entitle a plaintiff to recover. (Burdinie v. Village of Glendale Heights (1990), 139 Ill. 2d 501, 504, 565 N.E.2d 654, 657.) On appeal, all well-pleaded facts in the attacked portions of the complaint are taken as true and this court must decide whether the allegations, when viewed in the light most favorable to the plaintiff, are sufficient to state a cause of action upon which relief may be granted. Burdinie, 139 Ill. 2d at 505, 565 N.E.2d at 657.

I

Petitioners first challenge the dismissal of count I, which alleged that the decedent’s will was the product of undue influence exercised by respondent Kenneth. Undue influence sufficient to invalidate a will is that influence which prevents the testator from exercising his own free will in the disposition of his estate or which deprives the testator of free agency and renders the will more that of another than his own. The influence may be exerted at any time, but must be directly connected with the execution of the will and operate at the time the will is made. (In re Estate of Sutera (1990), 199 Ill. App. 3d 531, 536, 557 N.E.2d 371, 374 (and cases cited therein).) The prima facie elements of undue influence are: (1) a fiduciary relationship between the testator and a substantial and comparatively disproportionate beneficiary under the will; (2) a testator in a dependent situation in which the substantial and disproportionate beneficiaries are in dominant roles; (3) a testator who reposed trust and confidence in such beneficiaries; and (4) a will prepared or procured and executed in circumstances wherein such beneficiaries were instrumental or participated. (See In re Estate of Mooney (1983), 117 Ill. App. 3d 993, 997, 453 N.E.2d 1158, 1161.) Furthermore, the pleading of undue influence must contain a specific recital of the manner in which the free will of the testator was impaired at the time the instrument was executed. The mere conclusion that the testator was influenced by the dominant nature of the disproportionate beneficiary is insufficient. Merrick v. Continental Illinois National Bank & Trust Co. (1973), 10 Ill. App. 3d 104, 111, 293 N.E.2d 767, 771, quoting Sterling v. Kramer (1957), 15 Ill. App. 2d 230, 234,145 N.E.2d 757, 759.

In this case, the parties primarily contest the existence of a fiduciary relationship and the preparation and procurement of the will. As the court did not err in dismissing count I on the latter ground, we need not address the former.

Count I of the petition was properly dismissed on the issue of whether the will was procured and executed under circumstances which would give rise to a claim of undue influence. For example, in Sutera, this court held that allegations of a testator’s declining health, dominant influence exercised by a beneficiary and a threat by that beneficiary to expose the testator’s sexual preferences did not suffice to state a claim of undue influence. (Sutera, 199 Ill. App. 3d at 538, 557 N.E.2d at 375-76.) The Sutera court then noted:

“In their brief, petitioners contend that ‘the testator is alleged to have executed his will under the fear that respondent’s threat would be carried out.’ While such an allegation comes closer to those allegations sufficient to state a cause of action for undue influence, unfortunately the petition did not, in fact, contain such a statement.” Sutera, 199 Ill. App. 3d at 539, 557 N.E.2d at 376.

In this case, the petition comes closer to specifically alleging the manner in which the alleged influence operated to overcome the free will of the testator. It is notable, however, that the Sutera court did not conclude that such allegations actually suffice to state a claim. Indeed, the Sutera court, in distinguishing the Sterling case, noted that in Sterling, the petition included allegations of a conspiracy by one beneficiary and his wife to misrepresent facts about other beneficiaries. (Sutera, 199 Ill. App. 3d at 538, 557 N.E.2d at 375.) In this case, as in Sutera, there are no such allegations of misrepresentation. Moreover, there are no allegations that the respondent directly participated in the procurement or execution of the will. Consequently, count I fails to allege undue influence with the specificity required to survive a motion to dismiss.

II

Petitioners next challenge the dismissal of the second count of the petition, which sought a construction of the will that both articles second and third are residuary clauses which would be subject to taxes and estate administration costs under the “burden on the residue” rule followed in Illinois. (See In re Estate of Maddux (1981), 93 Ill. App. 3d 435, 437, 417 N.E.2d 266, 268.) Illinois lawyers have long relied on this rule and “countless wills have been drafted on this assumption.” In re Estate of Phillips (1971), 1 Ill. App. 3d 813, 815, 275 N.E.2d 685, 687.

In construing a will, a court will normally give technical terms their technical meaning and will seek to effectuate the testator’s intent. (See In re Estate of Laos (1985), 134 Ill. App. 3d 504, 507, 480 N.E.2d 1183, 1186.) A court will normally accord a word which appears in more than one place in a will an identical meaning. (Heller v. Metcalf (1981), 98 Ill. App. 3d 76, 78, 424 N.E.2d 87, 89.) The construction of a will should seek to give effect to all the language of the testator’s will. (In re Estate of Powers (1983), 117 Ill. App. 3d 1087, 1089, 454 N.E.2d 384, 386.) Where the language of a will is ambiguous, the court will apply the rules of construction to ascertain the testator’s presumed intent. When applying the rales of construction, a court may insert or delete words in order to arrive at that intent. Chicago Title & Trust Co. v. Schwartz (1983), 120 Ill. App. 3d 324, 329, 458 N.E.2d 151, 154.

In this appeal, petitioners rely primarily on two cases. In In re Estate of Georgen (1971), 2 Ill. App. 3d 750, 277 N.E.2d 341, this court held that two separate clauses of a will created a residuary estate which served to place real estate with a trustee instead of the testator’s husband. In Molner v. Silbert (1956), 8 Ill. App. 2d 388, 132 N.E.2d 36, this court held that two residuary clauses were subject to taxes and costs where one residuary clause contained specific bequests and other distributions, where the will allowed the trustee to defer such distributions if needed to pay such expenses.

In contrast, respondents rely upon the aforementioned rule that this court must seek to effectuate the testator’s intent. Respondents note that article second contains a number of specific bequests and distributions and the will contains no other specific devises. The conclusion respondent draws is that the four corners of the will evince an intent such that article second is not a residuary clause.

Respondents’ conclusion does not necessarily follow from their argument. Georgen and Molner imply that language which creates a residuary estate is not overcome by the fact that the clause goes on to make specific bequests or distributions; moreover, this court expressly stated that a residuary bequest may be specific in In re Estate of Comiskey (1960), 24 Ill. App. 2d 199, 204, 164 N.E.2d 535, 538. Respondents have failed to cite any binding authority contradicting Comiskey.

Respondents also rely on In re Estate of Appel (1973), 13 Ill. App. 3d 546, 300 N.E.2d 845, in which the term “residuary estate” appeared four times. The Appel court concluded that there was only one residuary clause, based on the language of that will. For example, article V of the Appel will stated that “[i]f my residuary estate shall contain” shares of stock in a company, it would go to two specific beneficiaries equally. (Appel, 13 Ill. App. 3d at 547, 300 N.E.2d at 846.) The Appel court stated that this conditional phrase operated to identify the asset, rather than apportion taxes and costs. (Appel, 13 Ill. App. 3d at 549, 300 N.E.2d at 847.) Thus, Appel is distinguishable from this case because the term “residuary estate” appeared in different contexts within the will. In contrast, the language here is identical in both articles second and third.

In sum, considering the identical language in articles second and third, as well as the rules that a court is to give effect to all the language in the will and give that language its technical meaning unless the testator manifested a contrary intent, it is possible that both articles were intended as residuary clauses. Despite this ambiguity, the trial court dismissed count II without hearing evidence of the testator’s intent; judgment on the pleadings was denied. Given the procedural posture of this appeal, we conclude that count II should not have been dismissed.

Ill

Finally, petitioners challenge the dismissal of count III of the petition, which sought a construction of the will which declared Julian Electric a nonprobate asset. Petitioners claim that title to Julian Electric passed under the 1986 agreement between respondent Kenneth and the decedent, rather than under the will. Whether the business is deemed a nonprobate asset is important because nonprobate assets are subject to taxation under the doctrine of equitable apportionment.

Although Illinois does not have an equitable apportionment statute, our courts have consistently applied the doctrine of equitable apportionment to intestate and testate estates, thereby permitting the apportionment of Federal estate taxes among recipients of probate and nonprobate assets. (In re Estate of Gowling (1980), 82 Ill. 2d 15, 411 N.E.2d 266; Roe v. Estate of Farrell (1978), 69 Ill. 2d 525, 372 N.E.2d 662.) Equitable apportionment will not be allowed, however, as to nonprobate assets where the testator or legislature has expressed a contrary intention. In re Estate of Grant (1980), 83 Ill. 2d 379, 415 N.E.2d 416.

Petitioners did not specify a particular theory in count III which would result in the equitable apportionment they seek, at least not in the sense of employing specific technical buzzwords or legalese. However, we are cognizant that the petition as a whole is a petition for will construction. The petition alleges that title to Julian Electric passed under the 1986 agreement, which would preclude it from passing under the will. These allegations include the terms of the 1986 agreement itself; the agreement was incorporated into their petition by attaching it as an exhibit.

These allegations, with or without accompanying legalese, state a claim for will construction based on a latent ambiguity in the will. In determining the propriety of the trial court’s dismissal of the petition, this court’s task would be to determine whether the factual allegations of the petition to construe the will set forth facts which, if proved, would create a latent ambiguity in the will. (In re Estate of Smith (1990), 198 Ill. App. 3d 400, 555 N.E.2d 1111.) If the petition states such facts, a hearing must be held in which evidence extrinsic to the will is taken to determine if there is a latent ambiguity. If it is determined that no latent ambiguity exists, the petition is dismissed; otherwise, a full hearing is held in which evidence extrinsic to the will is admitted to determine the intent of the testator. (Weir v. Leafgreen (1962), 26 Ill. 2d 406, 186 N.E.2d 293.) This rule has been applied where legacies are in clear and unambiguous terms but the testator did not own the property described in the bequest. Huff v. State Bank & Trust Co. (1953), 414 Ill. 111, 110 N.E.2d 449; Appleton v. Rea (1945), 389 Ill. 222, 58 N.E.2d 854; Alford v. Bennett (1917), 279 Ill. 375,117 N.E.89.

In this case, petitioners allege that decedent did not own Julian Electric at the time of his death. Thus, under Huff it seems that the trial court erred in dismissing count III without a hearing on whether a latent ambiguity exists in the will.

Respondents raise a number of arguments in support of the dismissal of count III. They first argue that decedent’s will specifically provides for the transfer of Julian Electric and, consequently, the trial court “cannot be said to have erred in failing to ‘construe’ the language of a document to exclude that which is plainly included within it by the most explicit possible terms.” Respondents, however, cite no authority for this proposition, which is contrary to the Huff line of cases.

Respondents note that in the motion to dismiss, Kenneth asked the trial court to take judicial notice of the fact that the shares of Julian Electric stock were never physically transferred to Kenneth. The executor states that Kenneth has never claimed ownership of the stock or paid gift taxes on the stock. Thus, respondent Rodia concludes that “there is no basis in fact to find that decedent ever transferred the stock to Kenneth during his lifetime” and respondent Kenneth concludes that count III “cannot make Kenneth A. Julian the owner of assets he does not possess and which he has not claimed.”

The argument is unpersuasive, for it relies on factual matters outside the petition which cannot be considered upon hearing a motion to dismiss for failure to state a claim.

Respondents also note that the executor has included the Julian Electric shares in the inventory of the estate and that petitioners did not object to the inventory when it was filed. The filing of an inventory with the court, however, is merely a “preliminary investigation to determine probabilities, and not ultimate rights,” and the property inventoried is brought before the court “so that an adjudication in the interest of the estate on such property may be had.” (Simms v. Guess (1894), 52 Ill. App. 543, 546.)

“For example, suppose by mistake an asset which was never owned by the decedent was inventoried in her estate and the claim period passed. No one would say that the mere passage of time, and in this instance a relatively short time, somehow passed title to the decedent, and therefore, the true owner could not have his property back due to the lapse of time.” (In re Estate of Toigo (1969), 107 Ill. App. 2d 395, 404, 246 N.E.2d 68, 73.)

Thus, whether petitioners objected to the inclusion of the business in the inventory under the provisions of the Probate Act cited by respondents is not determinative of whether petitioners may ask the trial court to examine whether the existence of the 1986 agreement creates a latent ambiguity in decedent’s will.

Respondents finally contend that petitioners cannot enforce the 1986 agreement because petitioners were not parties to the contract and are not in privity to either decedent or Kenneth. This argument is supported by legal authority. (See, e.g., White Hen Pantry, Inc. v. Rak Woo Cha (1991), 214 Ill. App. 3d 627, 574 N.E.2d 104.) This argument is also premised on respondents’ assertions that the contract has not been executed. As these assertions are not contained in count III, they cannot affect the outcome of the motion to dismiss.

In sum, given the allegations in count III of the petition, we conclude that count III alleges facts which could give rise to a latent ambiguity in the will. Thus, count III should not have been dismissed for failure to state a claim.

For all of the above reasons, we affirm the dismissal of count I, but reverse and remand the dismissal of counts II and III for further proceedings consistent with this opinion.

Affirmed in part; reversed in part and remanded.

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


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JESSE AVERY, Defendant-Appellant.
    First District (1st Division)
    No. 1—88—2408
    Opinion filed September 30, 1991.
    Rehearing denied January 23, 1992.

      Randolph N. Stone, Public Defender, of Chicago (John T. Kennedy, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and Howard D. Weisman, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Following a bench trial in the circuit court of Cook County, defendant Jesse Avery was found guilty of aggravated arson and two counts of murder in connection with a fire which occurred at 4109 West Madison Street on August 8, 1986. Defendant was sentenced to 40 years’ imprisonment. Defendant now appeals, arguing that: (1) the trial court improperly admitted evidence concerning other crimes; (2) the trial court improperly admitted evidence of polygraph examinations taken by defendant and a witness; (3) the trial court conducted an investigation outside the record developed at trial; and (4) the State failed to prove him guilty of the charged offenses beyond a reasonable doubt. For the following reasons, we affirm.

THE TRIAL

The report of proceedings at defendant’s trial indicates the following. Benjamin Scott testified that he lived at 4109 West Madison during the summer of 1986. Scott stated that he paid no rent to live there because he sold drugs on behalf of defendant. According to Scott, several months prior to August 8, 1986, defendant had offered him $5,000 to set fire to the building, half to be paid in advance. Scott further stated that defendant told him he wanted the building burned because he had $100,000 of insurance on it. Defendant told him to make sure that babies and young ladies were not in the building when it was to be burned. Scott testified that about a month before the alleged arson, defendant told the tenants in the building to buy fire insurance. Scott also testified that he refused this offer twice. Scott stated that the last time he spoke with defendant, several months before the alleged arson, nothing was said about a fire.

On cross-examination, Scott admitted to occasional use of cocaine and a prior conviction for armed robbery. He also stated that while he had moved out of the building several months before the alleged arson, he continued to sell drugs from that location. Scott stated that although defendant always had money in his pocket, defendant did not offer him money or supplies with which Scott could burn the building. Finally, Scott stated he did not know that defendant did not own the building.

Kenneth Campbell testified that the building was owned by an absentee landlord, Mr. Schavin. Campbell stated that he was going to replace defendant as the building manager at 4109 West Madison once a community group rented the entire building.

Campbell testified that there had been a fire in the building about a week before the alleged arson. Campbell had a conversation with defendant shortly thereafter in which Campbell told defendant that he did not think the fire was accidental and defendant replied that “he would not have that problem anymore.” On August 8, 1986, Campbell went to the building upon hearing of the fire. Campbell heard someone say that a body was being brought out of the building and went to the back of the building. Campbell found out that the body was that of Bill Coney, whom Campbell knew. Over defendant’s objection, Campbell further testified that he saw defendant at the scene of the fire and told defendant that he knew defendant was responsible for the fire.

George Newby, Jr., testified that he was a tenant of the building at the time of the alleged arson. He also testified that about a week before the alleged arson, defendant had turned off the electricity in the building and that power was later restored. Between the time the power was restored and the alleged arson, Newby, Jr., his father and several other tenants were told by defendant that “all you sons of bitches are going to roast.” Newby, Jr., further stated that he saw defendant and Robert Divine leave the building at some time between 1 and 1:30 a.m. the night of the alleged arson. On cross-examination, Newby, Jr., testified that the electricity in the building was not very good.

George Newby, Sr., testified that in August 1986, he was a tenant of 4109 West Madison, living with his son. On August 8, 1986, he saw defendant shut off the lights in the building by unscrewing a fuse in a utility closet on the second floor of the building. Newby, Sr., called the police; following their arrival, Newby, Sr., restored the lights by replacing a fuse in the fusebox. Later that evening, Newby, Sr., and several other tenants were told by defendant that defendant had shut the lights off again and offered to turn them back on for $20 dollars. Newby, Sr., refused, at which time defendant said “I will fry all you so and so’s." Newby, Sr., then placed these events as happening the evening of August 7, 1986, the day before the alleged arson. At approximately 2 a.m. the following morning, Newby, Sr., woke up because Robert Divine was shouting that there was a fire.

Newby, Sr., further testified that the owner of the building, Mr. Schavin, had told him not to pay rent for a few months prior to the alleged arson because the building was to be turned over to Butch Campbell and the existing tenants would have to move. Defendant had advised Newby, Sr., to buy fire insurance about two or three months prior to the alleged arson.

Robert Divine then testified that he was defendant’s stepbrother. In August 1986, he had lived at 4109 West Madison rent-free and believed that defendant owned the building. Divine further believed that defendant was a roofer and contractor and was unaware that defendant was dealing drugs. According to Divine, on August 8, 1986, at about 1 a.m., he awoke in his second-floor room and went to the washroom. Returning to his room, he heard a crackling coming from the utility closet, but did not look inside the closet, believing the noise to be rats. About 15 minutes later, Divine smelled smoke. Looking out into the hall, Divine saw fire coming out of the utility closet and began shouting fire and warning everyone to leave the building.

Divine then testified that he did not start the fire and had no idea how it started. Then Divine testified that from 6 a.m. to midnight the following day, he had spoken with the police about the fire, taken a polygraph, spoken further to the police and later he gave a written statement to a State’s Attorney. This written statement was ruled admissible as substantive evidence, pursuant to section 115 — 10.1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, par. 115 — 10.1). At this point, the trial was continued to the following day, in order that Divine could be represented by his attorney.

THE VOLUNTARINESS HEARING

The next day, the court held a hearing to determine whether Divine’s written statement was voluntarily made. Divine was recalled and testified that he wished to change his prior testimony to reflect that he did know that defendant was selling drugs from 4109 West Madison. After the State granted Divine immunity from prosecution for perjury, Divine again testified that he gave the written statement to a State’s Attorney.

The written statement indicated that Divine had been read and understood his constitutional rights. Divine’s statement indicated that defendant dealt drugs from the building, had demanded money from the tenants to restore their electricity and was going to be replaced as the manager of the building. Divine stated that at about 9:30 p.m. the night of the alleged arson, defendant told him not to remain in the building that night because there was going to be trouble, but also asked him to return to the building later that night.

Divine then stated that around 11:30 p.m., defendant told him that he owed defendant for allowing him to stay in the building rent-free and for providing him with transportation money back and forth to school. Defendant told Divine that he was going to start a small fire in the building and needed Divine’s help. According to Divine’s statement, defendant and Divine went to a gas station to buy some Ronson lighter fluid, which defendant had stated was smokeless, odorless and could not be detected once ignited. The two men returned to 4109 West Madison at about 1 a.m. and climbed the back stairs of the building. Divine then saw defendant go to the second-floor utility closet, pour the lighter fluid inside the closet, ignite the fluid and throw the bottle into the flames. Defendant told Divine to wait five minutes before putting out the fire. When Divine attempted to extinguish the fire, he could not do so. Defendant had already left the area. Divine attempted to warn the other tenants of the fire.

Divine’s statement also indicated that defendant had told Divine that defendant wanted to start the fire to get back at Butch Campbell. Defendant chose the utility closet because George Newby, Sr., had been messing with some of the fuses in the closet.

On cross-examination, Divine testified that he had made up the written statement because while in police custody, the police had told him that defendant had given them a statement implicating only Divine and had further told him that he had “flunked” the polygraph. The trial court asked whether the polygraph test pertained to Divine’s story that he thought he had heard rats in the utility closet, which Divine confirmed. Divine further testified that he made another written statement while in the lockup at 26th and California with defendant. This second written statement indicated that Divine had accidentally started the fire and had made up the first written statement. However, Divine then testified that the second written statement was also incorrect; he had not started the fire and did not know who had.

The trial court found that the first written statement given to the State’s Attorney was made voluntarily and therefore could be considered as substantive evidence.

THE TRIAL RESUMES

The parties stipulated that the building at 4109 West Madison was owned by Leonard Schavin, that William Coney died of carbon monoxide poisoning, and that samples taken from the fire source indicated the presence of an accelerant.

Detective Lawrence Gates, a member of the Chicago police department’s bomb and arson unit for nine years, testified that the fire was not accidentally caused. The fire did not originate in the fusebox, but from the ignition of a flammable liquid poured on the closet floor.

Detective Dennis Keane testified that he had spoken to a number of the tenants at the scene and asked both defendant and Divine to come down to the police station for questioning. Keane stated that both men were given polygraph tests. Defendant’s objection to the introduction of testimony concerning the results of any such polygraph was sustained.

Detective Ross Horne testified that he had spoken with defendant at the police station. Horne testified that defendant stated that Divine told defendant that he wanted to set fire to a woman’s door with gasoline. Defendant told Horne that he advised Divine to set a fire in the utility closet, but to close the closet door so there would be smoke, but no one would be hurt. Defendant further told Horne that he rented the building from Mr. Schavin and that he was a little upset at being ousted as manager of the building.

Gloria Avery, defendant’s wife, testified that the evening before the fire, she was at home at 4036 West Madison with defendant and their three sons. According to his wife, defendant came home around 9:30 or 10 p.m., had dinner, watched wrestling with his sons, took a bath and went to bed. Later, she heard a commotion and went to their back door, from which she could see the fire. Defendant’s wife returned to bed, not realizing the fire was at 4109 West Madison. Subsequently, two men from a board-up company came to the door, asking her to tell defendant that 4109 West Madison was on fire. She awakened defendant and both of them went to the scene of the fire.

Defendant’s three sons, Jesse Walker, Ebenious Walker and Christopher Walker, all gave substantially similar testimony. Jesse Walker testified that the night before the fire, defendant watched wrestling with him, took a bath and then went to bed some time after 10:30 p.m., the same time as the rest of the family. Jesse Walker further testified that he knew where defendant was, even though he was asleep in the room next to defendant’s room. Ebenious Walker testified to the same sequence of events. Ebenious did not claim to know where defendant was while he was asleep, but did not remember which day of the week the fire occurred. Christopher offered the same sequence of events as well. Christopher could not remember the date of the fire or what day of the week it occurred. Christopher testified that he knew where defendant was while he was asleep, because he could always hear someone leaving by the front door.

Grover Doyle testified that he was a tenant of 4109 West Madison at the time of the fire, had known defendant for about 20 years and had been a foreman for defendant’s roofing business for three or four years. During the end of July or the beginning of August of 1986, Doyle helped George Newby, Sr., fix the lights in 4109 West Madison. According to Doyle, defendant told them at that time that they would get all burned up messing with that electricity. The night of the fire, a lady awakened Doyle and he was able to escape from the building. Doyle could not remember what time he went to bed that evening because he was high, but testified that he awoke at about 1:30 or 2 a.m.

Finally, John Jordan, who was also a tenant at the time of the fire, testified that the morning before the fire, defendant advised him to stay out of the building that evening because he had not paid rent for eight months. Jordan did stay in the building, though, and escaped after being awakened by Robert Divine. Jordan did not see defendant at the scene of the fire.

Following closing arguments, the trial court found defendant guilty of two counts of murder and one count of aggravated arson. Defendant was sentenced to 40 years’ imprisonment.

I

On appeal, defendant first contends that he was denied a fair trial because the trial court improperly admitted and considered evidence of other crimes allegedly committed by defendant. In particular, defendant objects to testimony alleging that: (1) defendant ran a drug dealership from 4109 West Madison; (2) a fire separate from the alleged arson occurred about one week prior to the alleged arson; and (3) defendant attempted to extort money from the tenants of the building in return for the restoration of electricity to the building.

The State initially contends that defendant waived the issue by failing to object at trial and to include the alleged error in his post-trial motion. (People v. Lucas (1981), 88 Ill. 2d 245, 250, 430 N.E.2d 1091, 1093.) Supreme Court Rule 615(a), however, provides an exception to the rule of waiver where there has been “plain error.” (107 Ill. 2d R. 615(a).) Under this rule, this court may elect to consider errors that have not been properly preserved for review where the evidence at trial is closely balanced or where the errors were of such magnitude that a defendant was denied a fair trial. (Lucas, 88 Ill. 2d at 250-51, 430 N.E.2d at 1093-94.) In this case, due to the prejudicial effect such evidence may have on the trier of fact, we turn to consider defendant’s arguments. See People v. Alford (1982), 111 Ill. App. 3d 741, 744, 444 N.E.2d 576, 578.

Although evidence of other crimes is inadmissible to prove a defendant’s predisposition to commit the crimes charged, it may be admitted if it is relevant for any other purpose. (People v. Stewart (1984), 105 Ill. 2d 22, 61-62, 473 N.E.2d 840, 868.) Of course, there must be some evidence that the alleged other crime was actually committed. (People v. Gugliotta (1980), 81 Ill. App. 3d 362, 365, 401 N.E.2d 262, 264.) The decision to admit or exclude evidence of other crimes rests within the discretion of the trial court and will not be reversed absent an abuse of that discretion. People v. Chambers (1989), 179 Ill. App. 3d 565, 577, 534 N.E.2d 554, 560.

Moreover, the trial judge in a bench trial is generally presumed to have considered only properly admitted evidence. (People v. Eddmonds (1984), 101 Ill. 2d 44, 461 N.E.2d 347.) Likewise, when evidence is admissible for a limited purpose, it is presumed that the trial judge considered it only for that proper purpose. (See People v. Lewis (1986), 147 Ill. App. 3d 249, 258, 498 N.E.2d 1169, 1176.) Where the evidence of defendant’s guilt is manifest, the defendant must be able to show more than a mere suspicion to rebut these presumptions. (See People v. Brock (1989), 184 Ill. App. 3d 595, 599, 540 N.E.2d 554, 556.) Indeed, these presumptions are only rebutted when the defendant can make an affirmative showing to the contrary from the record on appeal. (People v. Gilbert (1977), 68 Ill. 2d 252, 258, 369 N.E.2d 849, 852.) Once a defendant has been found guilty after a bench trial, all evidence is to be construed in the light most favorable to the prosecution. People v. Schuld (1989), 191 Ill. App. 3d 809, 812, 548 N.E.2d 336, 338.

In this case, the State’s theory at trial was that defendant, as the manager of 4109 West Madison, considered himself the “boss hog” of the building. The record shows that defendant was to be replaced as manager of the building and that the tenants had been instructed not to pay rent to defendant because they were to be relocated. Thus, evidence that defendant stood to lose any profit generated from alleged drug-dealing or extortion at 4109 West Madison was admissible to show the motives of economic loss and vengeance against the building’s owner and those tenants whom defendant could no longer control.

Even if this evidence was deemed inadmissible, the error would not mandate reversal in this case. The record shows that the trial court affirmatively stated that it would not consider the evidence of drug dealing in reaching its decision. Similarly, defendant has failed to indicate from the record that the trial court improperly considered the testimony of alleged extortion in reaching its decision. Hence, defendant has failed to rebut the presumption that it was not improperly considered.

Defendant also objects to the introduction of evidence of a fire which occurred at 4109 West Madison about one week before the alleged arson, not only because it was inflammatory, but also because there was no evidence that the prior fire was an arson. The record here shows that when the defendant objected to this testimony, the trial court stated:

“Subject to my seeing the relevancy, so far I don’t, it may come a time when I sustain the objection but at this time I want to hear the testimony.”

The record also shows that the trial court later refused to admit evidence of a report concerning the prior fire which defense counsel characterized as a “report of an accidental fire,” advising defense counsel not to “open up a can of worms here.” The record further indicates that just before the defense rested, defense counsel attempted to have the State stipulate that the prior fire was an accidental stove fire. At that time, the trial court rejected the State’s argument that the evidence could show a pattern of fires, remarking that there was “no inference one way or another as to what caused the earlier fire.” Therefore, although the trial court may have initially treated evidence of the prior fire as conditionally relevant, the record indicates that it ultimately did not consider evidence of the prior fire in reaching its verdict because the State failed to demonstrate its relevance to the charged offenses.

In sum, defendant has failed to overcome the presumption that the trial court considered only proper evidence for proper purposes. Lewis, 147 Ill. App. 3d at 258, 498 N.E.2d at 1176.

II

Defendant’s second argument on appeal is that the trial court improperly considered evidence that Robert Divine and defendant took polygraph tests and evidence that Divine “flunked” his polygraph. Again, the State contends that defendant has waived the issue by failing to object at trial and to include the alleged error in his post-trial motion. (Lucas, 88 Ill. 2d at 250, 430 N.E.2d at 1093.) However, because the use of polygraph evidence may rise to the magnitude of plain error (People v. Yarbrough (1982), 93 Ill. 2d 421, 426, 444 N.E.2d 493, 495; People v. Baynes (1981), 88 Ill. 2d 225, 430 N.E.2d 1070), this court will review defendant’s argument.

In Baynes, our supreme court held polygraph evidence inadmissible even in the face of a written stipulation. (Baynes, 88 Ill. 2d at 240, 430 N.E.2d at 1077.) The court expanded on Baynes in Yarbrough, stating that such evidence could not be considered even when the trier of fact is a judge. People v. Yarbrough (1982), 93 Ill. 2d 421, 427, 444 N.E.2d 493, 495.

Nevertheless, the case law suggests that the prohibition on polygraph evidence is not absolute. For example, in People v. Triplett (1967), 37 Ill. 2d 234, 226 N.E.2d 30, our supreme court recognized that although Illinois law manifests a strong aversion to the admissibility of polygraph evidence, “it can be argued that a different result should follow when the issue is the voluntariness of a confession.” (Triplett, 37 Ill. 2d at 239, 226 N.E.2d at 32.) The court further stated that “[i]t can be said that the fact that the confession followed a polygraph examination is a relevant circumstance and that it is the fact of the examination, rather than its result, that is significant.” (Triplett, 37 Ill. 2d at 239, 226 N.E.2d at 32.) The court held, however, that because no limiting instruction was given to the jury, a new trial was required regardless of whether or not the evidence was admissible. Triplett, 37 Ill. 2d at 240, 226 N.E.2d at 33.

This court has allowed evidence of a polygraph examination on the question of voluntariness where a limiting instruction was given to the jury, even after Baynes and Yarbrough were decided. (People v. Jackson (1990), 198 Ill. App. 3d 831, 846, 556 N.E.2d 619, 628-29; see also People v. McClellan (1991), 216 Ill. App. 3d 1007, 1012-13 (distinguishing Jackson as a case involving voluntariness).) This court has also approved a trial judge’s consideration of polygraph evidence relating to voluntariness in the context of a motion to suppress. E.g., People v. Hattery (1989), 183 Ill. App. 3d 785, 822-23, 539 N.E.2d 368, 393; People v. Haymer (1987), 154 Ill. App. 3d 760, 772-73, 506 N.E.2d 1378,1386-87.

Defendant argues that Baynes and Yarbrough should apply because the trial judge heard Divine testify that the police told Divine that he flunked the polygraph and that the trial judge asked about which statements the polygraph test addressed. The record indicates that these events took place in the context of a hearing to determine whether Divine’s first written statement, which was otherwise admissible as substantive evidence, should be suppressed as being coerced by the police. During this hearing, the trial judge heard that Divine had been told by the police that Divine had flunked his polygraph examination. This case, then, is similar to Jackson.

Unlike Jackson, however, the trial judge here also asked Divine whether he had told the polygraph examiner that Divine attributed the crackling sound in the hall to rats in the utility closet. Nevertheless, whether Divine told the polygraph examiner the same story initially told at trial is probative of voluntariness. At the time the trial judge asked this question, Divine had told the “rat story” at trial. The trial judge had not yet heard the version Divine told after being placed in the lockup with defendant. Therefore, if the version told to the polygraph examiner was the “rat story,” matching Divine’s trial testimony at that point, the version related by the written statement would appear to be inconsistent, possibly suggesting that the written statement was coerced. It is therefore not necessary to infer that the trial judge was inquiring into the truthfulness, rather than the voluntariness, of the statement.

Moreover, this case is a stronger one for admissibility than Jackson because it was a bench trial, rather than a jury trial. The trial judge is presumed to consider admissible evidence only, and to consider evidence introduced for a limited purpose for that proper purpose only. (Lewis, 147 Ill. App. 3d at 258, 498 N.E.2d at 1176.) In this case, we have more than these presumptions upon which to rely. We have the record, which indicates that the trial judge both stated during the voluntariness hearing that he could not consider polygraph evidence in reaching a judgment on the merits and sustained defendant’s objections to the introduction of such evidence when the trial on the merits resumed. Thus, the record does not remove this case from the scope of Jackson.

It is this record which also distinguishes this case from Yarbrough. In that case, the trial court violated State law by suggesting that a defendant take a polygraph and subsequently asked counsel whether there was new evidence beneficial to the defendant. Our supreme court inferred from those facts that the trial court improperly considered polygraph evidence in deciding the sufficiency of the evidence. (Yarbrough, 93 Ill. 2d at 427-28, 444 N.E.2d at 495-96.) Thus, the presumptions that the trial court knew the law and only considered admissible evidence were successfully rebutted.

In this case, defense counsel first elicited polygraph evidence during the hearing, not the trial judge. The testimony elicited by defense counsel and the trial judge was introduced to determine the voluntariness of a witness’ written statement, not the sufficiency of the evidence of defendant’s guilt. Consequently, this case is not controlled by Yarbrough.

The rule against admitting polygraph evidence is premised on two concerns: (1) such evidence is unreliable and thus infringes on the integrity of the judicial process; and (2) such evidence may appear to a jury as being completely determinative of guilt. (See Baynes, 88 Ill. 2d at 244, 430 N.E.2d at 1079.) Here, where a trial judge has merely heard polygraph evidence on the question of voluntariness during a motion to suppress, then hears the bench trial concerning the same defendant and states during the latter that he will not consider polygraph evidence adduced at the former, these concerns are not implicated. Given these circumstances, the trial court did not commit reversible error.

Ill

Defendant’s third argument is that the trial court improperly conducted an investigation into matters outside the trial record. The State contends that defendant waived the issue by failing to object at trial and to include the alleged error in his post-trial motion. (Lucas, 88 Ill. 2d at 250, 430 N.E.2d at 1093.) The error defendant alleges goes to his constitutional right that all proceedings against him shall be open and notorious, and in his presence. Any inquiry or acquisition of evidence outside of open court and outside of the presence of the defendant is prejudicial error. (People v. Rivers (1951), 410 Ill. 410, 416, 102 N.E.2d 303, 306.) This court, as a result, will review such alleged errors under Rule 615(a). People v. Brantley (1976), 43 Ill. App. 3d 616, 618, 357 N.E.2d 105, 107.

Defendant likens his case to People v. Harris (1974), 57 Ill. 2d 228, 314 N.E.2d 465. In Harris, the trial judge stated that he could not believe the defendants’ alibi because they relied on alleged facts that they apparently had not told their defense counsel during their initial meeting and these facts had not been mentioned in a related case heard by the same trial judge. Our supreme court reversed the convictions, holding that the record did not allow the presumption that the trial judge considered only admissible evidence. Harris, 57 Ill. 2d at 231-32, 314 N.E.2d at 467.

In this case, defendant asserts that “[a]fter the evidence was closed, the trial court demanded that the lawyer for the defendant provide certain information about the time defendant first asserted an alibi defense, and inquired if there were any police reports indicating that the alibi witnesses went to the police station and related the alibi.” Defendant contends that “where the judge inquired about the timeliness of the alibi, as his own private investigation, and then stated that he did not believe the alibi witnesses or any thing they said, *** the conviction must be reversed and the case remanded for a new trial.”

The record in this case indicates that during closing arguments, defense counsel stated that it would have been very easy for her to tell the alibi witnesses the date of the fire and what time the firemen said the fire started. The record shows that it was at this point that the trial judge asked the “personal question” of when defendant’s trial counsel first asked the alibi witnesses where they were and who was present on the date at issue. Defense counsel replied that she had not asked those questions until that very day, upon which the trial judge inquired whether there were any police reports in which the family members mentioned the alibi to which they had just testified one year and nine months following the alleged arson. The record does not indicate that this question was answered. The record later reflects that the court remarked that the alibi could be fabricated and further stated:

“I can’t believe what they testified to as being something which they can remember and relate. That the way in which they testified, the manner in which they testified, the questions which were asked, their reasons for remembering fall way short of what I think is needed to make this an alibi or to overcome the evidence that the State — to me the overwhelming evidence introduced by the State.”

The record reflects that the trial court chose to disbelieve the alibi witnesses on the grounds that they were family members who did not want to see defendant convicted and that their testimony was not convincing.

This case does resemble Harris insofar as the trial court asked defense counsel about matters which ultimately bear on the credibility of an alibi defense. However, based on the record, this case is distinguishable from Harris. First, in Harris, the trial court initiated an investigation of matters not in evidence in one charge based on the judge’s knowledge of a related charge. (Harris, 57 Ill. 2d at 231-32, 314 N.E.2d at 467.) In contrast, the record here shows that the judge’s “personal questions” were provoked by the argument of defense counsel that the alibi witnesses did not fabricate their testimony. In Harris, the trial court concluded that the defendants were not credible because he could not ascertain whether they had mentioned their alibi in their first meeting with the public defender. In this case, the trial judge appears to have based his conclusion upon the substance of the testimony and his observation of the witnesses’ demeanor, not on information obtained in another judicial proceeding. Even if we were to deem the trial judge’s question concerning police reports to be problematic, defendant has not indicated that this question was answered or demonstrated that any answer given would have been anything more than cumulative to what the trial judge had already seen and heard. Thus, the trial judge’s questions do not require reversal.

IV

Defendant’s final argument is that the State failed to prove him guilty beyond a reasonable doubt. Defendant contends that his case turns on credibility and that Divine’s credibility was sorely damaged, making it doubtful that defendant set the fire.

This court will not reverse a criminal conviction unless the evidence is so improbable or unsatisfactory that it raises a reasonable doubt as to defendant’s guilt. (E.g., People v. Brandon (1990), 197 Ill. App. 3d 866, 874, 557 N.E.2d 1264, 1269.) The relevant inquiry on appeal is whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt, after viewing the evidence in the light most favorable to the prosecution. People v. Jimerson (1989), 127 Ill. 2d 12, 43-44, 535 N.E.2d 889, 903.

The testimony of an accomplice, whether corroborated or not, may be sufficient to sustain a conviction if the trier of fact is convinced beyond a reasonable doubt. (See, e.g., People v. Newell (1984), 103 Ill. 2d 465, 469 N.E.2d 1375.) However, accomplice testimony is often problematic; the accomplice may have been promised leniency or harbor bias against the accused. Consequently, such testimony should be accepted with the utmost caution and be subjected to the highest scrutiny. (Newell, 103 Ill. 2d at 470, 469 N.E.2d at 1377; see People v. Krankel (1985), 131 Ill. App. 3d 887, 476 N.E.2d 777.) Nevertheless, whether accomplice testimony forms a sufficient basis for conviction ultimately goes to the weight of the evidence; therefore, it is generally a function within the province of the trier of fact. See Newell, 103 Ill. 2d at 470, 469 N.E.2d at 1377.

In this case, the finder of fact chose to believe Divine’s first written statement, which directly implicated defendant in the charged offenses. Divine was not offered leniency with regard to the charged offenses; the record reflects that Divine’s arrest had been quashed previously. Indeed, the record reflects that Divine was offered immunity for perjury before he denied the truthfulness of his first written statement, not before he made the written statement itself. The record further reflects that the trial court was aware of the suspicion with which Divine’s statements should be viewed, declaring:

“Certainly the State would rather have a pope or a priest to be present, but popes and priests and lawyers and doctors and Indian chiefs do not go out and burn buildings down.
So the best the State could do was to produce someone who was there present and viewed the whole circumstances, corroborated by the physical facts. None of the alibi witnesses do anything to deter the proof presented by the state which does convince me beyond a reasonable doubt that the defendant *** is guilty ***.”

Divine’s first written statement was consistent with the testimony of Detective Gates that the physical evidence led Gates to conclude that the fire was caused by the igniting of an accelerant poured inside the electrical closet. It is also consistent with the testimony of George Newby, Jr., that he saw defendant at 4109 West Madison on the night of the fire between 1 and 1:30 a.m. and that he previously heard defendant tell a number of tenants that “all you sons of bitches are going to roast:” It is consistent with George Newby, Sr.’s testimony that defendant told the tenants that “I will fry all you so and so’s.” It is consistent with Benjamin Scott’s testimony that defendant had previously offered him $5,000 to bum the building down and that about a month before the fire, defendant told the tenants to buy fire insurance.

Divine’s first written statement is not consistent with the alibi testimony of defendant’s wife and children. The trial judge noted on the record that he found the alibi testimony vague and also remarked upon the demeanor of the alibi witnesses. The trial judge’s comments in this regard find support in the record; for example, the children testified that they knew defendant did not leave their home that night, even though they were asleep in a room separate from defendant.

In sum, viewing the evidence in the light most favorable to the prosecution, the trial court’s reliance on the first written statement Divine gave to the police was consistent with the testimony of numerous witnesses; Divine’s other versions of events were not. The opposing testimony was primarily given by members of defendant’s family, who lacked credibility and had an obvious desire to see the head of the family escape punishment. Given this record, the trial court could have found defendant guilty beyond a reasonable doubt.

For all of the aforementioned reasons, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

MANNING, P.J., and BUCKLEY, J., concur.

       The trial court cited People v. Bacon (1971), 2 Ill. App. 3d 324, 276 N.E.2d 782, as authority for holding a hearing on whether the statement of one in the position of a codefendant or co-indictee should be suppressed. Neither side has raised any issue regarding this ruling on appeal.