author: PRESIDING JUSTICE BUCKLEY

text:
    LELA JANETIS, Indiv. and as Independent Ex’r of the Estate of Nicholas S. Janetis, Deceased, Plaintiff-Appellant, v. E.M. CHRISTENSEN et al., Defendants-Appellees.
    First District (1st Division)
    No. 1—88—1882
    Opinion filed June 25, 1990.

      Edward J. Walsh, Jr., of Wheaton, and David A. Novoselsky & Associates, of Chicago (David A. Novoselsky and Kathleen M. Krist, of counsel), for appellant.
    French, Rogers, Kezelis & Kominiarek, RC., of Chicago (Michael C. Kominiarek, Russell P. Veldenz, and Michael R. Webber, of counsel), for appellee LeRoy B. Garbe.
    Johnson & Bell, Ltd., of Chicago (Thomas H. Fegan, of counsel), for appellee E.M. Christensen.
    No brief filed for other appellees.
   PRESIDING JUSTICE BUCKLEY

delivered the opinion of the court:

Lela Janetis (plaintiff), individually and as independent executor of the estate of her husband, Nicholas S. Janetis, brought an action against Doctors E.M. Christensen, LeRoy B. Garbe and W.A. Moore in the circuit court of Cook County, alleging medical malpractice and seeking recovery under the Illinois Wrongful Death Act (Ill. Rev. Stat. 1985, ch. 70, par. 1 et seq.), the Illinois Survivor Act (Ill. Rev. Stat. 1985, ch. HOYa, par. 27 — 6) and the Illinois family expense act (Ill. Rev. Stat. 1985, ch. 40, par. 1015). The circuit court granted defendants Christensen’s and Garbe’s motions for summary judgment on the ground that the applicable statute of limitations period had expired, and plaintiff appeals from that order.

On August 14, 1985, Nicholas filed a complaint against defendants in the circuit court, alleging defendant Christensen’s negligence in failing to diagnose his colon cancer and defendant Garbe’s negligence in failing to properly read and interpret X rays of his colon in April 1982. Nicholas died of colon cancer on October 11, 1985.

On December 4, 1986, plaintiff filed an amended complaint, alleging the same acts of negligence. Defendants Christensen and Garbe filed motions for summary judgment, asserting the expiration of the statute of limitations. The limitations statute applicable to medical malpractice claims against physicians bars claims brought more than two years after the date of the claimant’s discovery of his claim and absolutely bars claims filed more than four years from the date of the act alleged to have been the cause of the injury. (Ill. Rev. Stat. 1987, ch. 110, par. 13 — 212.) In granting defendants’ summary judgment, the circuit court determined as a matter of law, based upon plaintiff’s deposition testimony, that the actions were not brought before the running of the above limitations period. Plaintiff’s deposition testimony revealed the following.

On April 7, 1982, Nicholas went to La Grange Hospital in La Grange Park, Illinois, after he noticed a bloody discharge from his rectum. He was treated by Dr. Christensen, a rectal specialist. On Nicholas' admittance to the hospital, Nicholas and plaintiff understood that Nicholas was to undergo certain tests to determine the cause of the bleeding. Following his discharge from the hospital, Nicholas was informed that the bleeding was due to hemorrhoids, for which no treatment was recommended.

Because of continual bleeding and at the insistence of plaintiff, Nicholas returned to Dr. Christensen on July 29, 1982. Nicholas apprised plaintiff after the visit that Dr. Christensen again diagnosed the problem to be hemorrhoids and stated “there is nothing to worry about.” Plaintiff believed her husband was content with the diagnosis and did not question the diagnosis.

In October 1982, when the bleeding continued, plaintiff and Nicholas “were beginning to worry about it then” and discussed the problem with Nicholas’ cousin, Leo Pappas. Pappas told Nicholas “this is going on too long.” He suggested that Nicholas schedule an appointment with his doctor, Dr. Moore, and then “pushed him into it.”

Dr. Moore examined Nicholas in October 1982. At Dr. Moore’s request, Nicholas underwent a proctoscopy and biopsy. In November 1982, Nicholas was informed that the results indicated that Nicholas had cancer, but that surgery would take care of the problem. Nicholas was admitted to La Grange Hospital the next day, where Dr. Parenti surgically removed part of his colon. Following the surgery, Dr. Parenti informed plaintiff and Nicholas that “everything was all right” and that he was very pleased with the surgery’s outcome. The bleeding ceased following the surgery, and plaintiff believed “it was very positive at that time that it was removed.” In three subsequent visits with Dr. Parenti, “everything was going well, there [were] no problems.”

In May 1983, Nicholas returned to Dr. Moore because he again experienced rectal bleeding. Dr. Moore informed Nicholas that the bleeding was caused by his hemorrhoids and that there was no problem. He instructed Nicholas to return after Dr. Moore’s vacation.

Plaintiff was aware that the previous bleeding was caused by the cancer, but “figure[d] it was taken care of.” She was anxious and unsatisfied with the answers the doctors gave them, but stated that Nicholas “was very trusting of his doctors” and did not question them.

Nicholas returned to Dr. Moore in the fall of 1983 after Dr. Moore returned from his vacation. A proctoscopy examination revealed that the cancer had recurred. Plaintiff and Nicholas again consulted with Dr. Parenti, who informed them that a colostomy was required, whereby the tumor would be removed, the rectum sealed, and the colon brought up. Plaintiff and Nicholas understood at this time that the cancer, a continued growth from his earlier cancer, was the cause of the recurrent bleeding and that its progression required a “different kind of operation.”

Subsequent to Nicholas’ surgery in November 1983, Dr. Parenti informed plaintiff that there had been more growth of the cancer than he had anticipated and that he could not remove all the cancer. Plaintiff at this time expressed to Dr. Parenti her belief, which she first held during Nicholas’ November 1982 hospitalization but did not express to Nicholas, that the diagnosis should have been made earlier. Following radiation therapy and various other problems, Nicholas died on October 11,1985.

On appeal, defendants initially raise an issue as to whether plaintiff has admitted the running of the limitations period by failing to deny defendants’ affirmative defenses that the action had been barred by the statute of limitations. We agree with plaintiff that her failure to reply to the affirmative defense attached to defendants’ answers is not an admission because defendants’ affirmative defense did not contain any well-pleaded facts but mere legal conclusions. (See Mitchell Buick & Oldsmobile Sales, Inc. v. National Dealer Services, Inc. (1985), 138 Ill. App. 3d 574, 485 N.E.2d 1281.) In any event, defendants have waived this issue by failing to raise it at the summary judgment hearing when plaintiff introduced contradictory evidence. See In re Adoption of McFayden (1982), 108 Ill. App. 3d 329, 438 N.E.2d 1362.

We turn now to plaintiff’s contention that the circuit court improperly found as a matter of law that her survival and wrongful death actions were not brought within the limitations period for medical malpractice actions against physicians. Before focusing on plaintiff’s deposition testimony as the basis for the circuit court’s ruling, it is necessary to distinguish between the two actions for purposes of determining the date the limitations period begins to run for each action, as well as the date the period is tolled.

Plaintiff’s survival action is a derivative action for the decedent’s injury. (Ill. Rev. Stat. 1985, ch. llCP/a, par. 27 — 6.) As such, the survival count in plaintiff’s amended complaint relates back to the date the decedent filed his claim for purposes of tolling the limitations period, while the date which triggers the limitations period is the date the decedent discovered his action. (Wyness v. Armstrong World Industries, Inc. (1989), 131 Ill. 2d 403, 411, 546 N.E.2d 568, 571.) Since Nicholas filed his actions on August 14, 1985, plaintiff’s survival action is time barred unless Nicholas discovered the action within two years of that date.

Plaintiff’s wrongful death action, on the other hand, is based upon her loss as the next of kin. (Wyness, 131 Ill. 2d at 411, 546 N.E.2d at 571.) Hence, the date plaintiff filed her amended complaint is the date which tolls the limitations period for this action, while the date which triggers the limitations period is the date plaintiff discovered her action. (Wyness, 131 Ill. 2d at 414-15, 546 N.E.2d at 573-74.) Plaintiff’s amended complaint filed on December 4, 1986, was brought within two years of her discovery of the action because she could not have discovered the action until Nicholas’ death on October 14, 1985, since death creates the next of kin’s wrongful death action. (See Wyness, 131 Ill. 2d at 414-15, 546 N.E.2d at 573-74; Cramsey v. Knoblock (1989), 191 Ill. App. 3d 756, 762, 547 N.E.2d 1358, 1363.) Nonetheless, because a wrongful death action requires that the deceased have a viable action for wrongful injury at the time of death (Wyness, 131 Ill. 2d at 414, 546 N.E.2d at 574), Nicholas must have discovered his claim within two years of the date he filed his action, August 14, 1985, in order for plaintiff to maintain her wrongful death action.

The circuit court found that plaintiff’s deposition testimony established that Nicholas discovered his medical malpractice claim in November 1982, more than two years from the date he filed his action. The discovery date under the limitations statute is determined from the time the claimant knows or reasonably should know of the injury and also knows or reasonably should know that it was wrongfully caused. (Nolan v. Johns-Mansville Asbestos (1981), 85 Ill. 2d 161, 169, 421 N.E.2d 864, 868; Witherell v. Weimer (1981), 85 Ill. 2d 146, 156, 421 N.E.2d 869, 874.) At that time, the party is under an obligation to inquire further to determine whether an actionable wrong has been committed. Nolan, 85 Ill. 2d at 171, 421 N.E.2d at 868.

The point at which the injured person becomes possessed of sufficient information concerning his injury and its cause to trigger the running of the limitations period is usually a question of fact (Knox College v. Celotex Corp. (1981), 88 Ill. 2d 407, 416, 430 N.E.2d 976, 980-81), unless the facts are undisputed and only one conclusion may be drawn from them (Nolan, 85 Ill. 2d at 171, 421 N.E.2d at 868-69). In determining whether sufficient information exists as to the injury and its cause, courts often look to the nature of the injury. (Cramsey, 191 Ill. App. 3d at 763, 547 N.E.2d at 1363.) Where a traumatic injury occurs, an injured party’s knowledge of the injury is immediate because of its nature, whereas when the injury is an aggravation of a physical problem which may naturally develop, absent negligent causes, neither its existence nor potential wrongful cause may immediately be known. Lebrecht v. Tuli (1985), 130 Ill. App. 3d 457, 486, 473 N.E.2d 1322, 1342.

After reviewing plaintiff’s deposition testimony, we conclude that her testimony does not conclusively establish the requisite knowledge of an injury and its cause before August 1983 because it does not demonstrate that Nicholas knew or should have known of defendants’ misdiagnosis. Plaintiff’s deposition testimony indicates that in the fall of 1982 a doctor informed Nicholas that he had cancer, but it does not establish that Nicholas was told that the bleeding he experienced at the time defendants examined him was caused by the cancer. In fact, her testimony discloses that doctors repeatedly assured Nicholas, a lay person who plaintiff testified trusted doctors, that the bleeding was due to his hemorrhoids. As late as May 1983, the doctor who diagnosed his cancer so assured him. Not until the fall of 1983, within two years of the filing date, could it be said as a matter of law that plaintiff’s deposition testimony established that Nicholas was aware that the cancer caused the bleeding.

Moreover, even assuming arguendo that plaintiff’s deposition testimony conclusively establishes that Nicholas should have been aware of defendants’ misdiagnosis of his bleeding as early as November 1982, the mere awareness of a physical problem and a misdiagnosis does not translate into knowledge of an injury and its wrongful cause as a matter of law. (Lebrecht, 130 Ill. App. 3d at 487, 473 N.E.2d at 1343.) The further fact that Nicholas knew the correct diagnosis of his problem also does not translate into knowledge of his injury and its wrongful cause here because the evidence does not establish that Nicholas knew the result of the misdiagnosis in November 1982. The basis of Nicholas’ action is not that defendants’ misdiagnosis caused his cancer, but that their failure to properly diagnose his cancer resulted in the progression of the cancer. Because Nicholas was told that all the cancer was removed in November 1982, it cannot be said as a matter of law that he should have had knowledge of his injury or even that defendants’ misdiagnosis caused him any harm. Not until the fall of 1983, within two years of the date Nicholas filed his action, when the proctoscopy examination revealed the cancer had recurred and when Nicholas was informed of the cancer’s progression, could it be found as a matter of law that Nicholas should have been aware of his injury and the possibility that defendants’ misdiagnosis was the cause.

The circuit court, therefore, erroneously determined that plaintiff’s deposition testimony established as a matter of law that her wrongful death and survival actions were not filed within the limitations period. The question of whether Nicholas knew or should have known of his injury and its cause before the fall of 1983 should have been a question to be determined by the jury.

Finally, plaintiff has abandoned on appeal her count seeking recovery under the family expense statute. Nonetheless, we find that the circuit court properly dismissed this count as time barred. Although such an action is derivative, since the right of action arises out of the injury to the person of another, it is not an action for damages for injuries but is an action for damages arising from the spouse’s liability under the family expense act. (See Severe v. Miller (1983), 120 Ill. App. 3d 550, 555, 458 N.E.2d 173, 177.) As such, the applicable limitations period is that set forth in section 13 — 203 of the Code of Civil Procedure, which provides:

“Actions for damages for loss of consortium or other actions deriving from injury to the person of another shall be commenced within the same period of time as actions for damages for injury to such other person.” (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 110, par. 13—203.)

Because a plaintiff under this section has the same period of limitation as the person from whom the action is derived (Severe v. Miller, 120 Ill. App. 3d at 555, 458 N.E.2d at 176), plaintiff had two years from the date of Nicholas’ discovery of his action and no later than four years of the negligent acts to bring the action pursuant to the limitations statute applicable to Nicholas’ action.

Even though plaintiff has the same limitations period as Nicholas, her family expense statute count in the amended complaint does not relate back to the date Nicholas filed his original complaint because the action is based upon her liability under the family expense statute. In McGinnis v. A.R. Abrams, Inc. (1986), 141 Ill. App. 3d 417, 422, 490 N.E.2d 115, 118, the court held that although the wife’s consortium action was inextricably connected to her husband’s original complaint for personal injury, it was still a separate cause of action of a new party and did not relate back to his complaint. In Joyce v. Wilner (1987), 156 Ill. App. 3d 702, 509 N.E.2d 769, this reasoning was adopted in an action under the family expense statute. The court there found that the plaintiffs’ amended complaint in their individual capacities as parents for medical, funeral and hospital expenses pursuant to the family expense statute related back to the date of their original complaint alleging wrongful death in their capacities as co-administrators because, unlike McGinnis, the parties in both the actions before it were the same, the only difference being the capacities in which they brought their action. Joyce, 156 Ill. App. 3d at 707, 509 N.E.2d at 771-72.

In the case at bar, since plaintiff’s count under the family expense statute, filed on December 1986, is a new action by a new party, it does not relate back to Nicholas’ complaint for personal injuries. The action, therefore, is time barred, as it was brought more than four years after the alleged acts of negligence.

Affirmed in part; reversed in part and remanded.

CAMPBELL and O’CONNOR, JJ., concur.

       The parties did not address plaintiff’s count under the Illinois family expense act on appeal or in the circuit court. An appellate court, though, may affirm a judgment below on the basis of a legal ground not argued either in the lower court or on appeal where the ground has factual support in the record. Ogden Group, Inc. v. Spivak (1981), 92 Ill. App. 3d 932, 416 N.E.2d 393; Redd v. Woodford County Swine Breeders, Inc. (1977), 54 Ill. App. 3d 562, 370 N.E.2d 152; Collins v. Towle (1972), 3 Ill. App. 3d 753, 279 N.E.2d 172.


source: Caselaw Access Project

author: JUSTICE O’CONNOR

license: Public Domain

text:
    BIMEX CORPORATION, Plaintiff-Appellee, v. ELITE PLASTIC SERVICES, INC., Defendant-Appellant.
    First District (1st Division)
    No. 1—89—1308
    Opinion filed June 25, 1990.

      Schwartz & Freeman and Walter Soroka, both of Chicago (Lawrence Jay Weiner, of counsel), for appellant.
    Bell, Boyd & Lloyd, of Chicago (Eric J. Avram, of counsel), for appellee.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Bimex Corporation (Bimex) sued Elite Plastic Services, Inc. (Elite), for amounts owed for the purchase of metallurgical products manufactured by Bimex. Elite asserted as an affirmative defense that breach of warranties by Bimex with respect to one product had caused Elite to incur greater costs than the amount owed to Bimex. After a bench trial, the trial court entered judgment for Bimex, ruling that Elite failed to establish either warranties or breach. For the reasons below, we affirm.

Extrusion and injection molding are manufacturing processes where fluid material, such as plastics, is forced into a mold through a nozzle, or barrel. To protect the barrel from wear, it is fitted with a replaceable bimetal liner, such as the QC 9100, made by Bimex. Bimex makes other metallurgical products and sells its products to manufacturers through distributors, such as Elite, which either resells to the ultimate user, or tools the Bimex products into its own products.

In 1984, Donald Lomax, president of Bimex, and Edward Blechner, president of Elite, met to discuss an arrangement for Bimex to sell QC 9100 liners to Elite. Blechner told Lomax that Elite had a very important customer and was interested in using Bimex’s products. Lomax told Blechner that the QC 9100 liner was “just as good as” other liners used by the industry.

In December 1984, Bimex shipped a QC 9100 to Elite, which fitted the liner into a barrel. The fitting process required splitting the liner, sizing it for the particular barrel, and welding it, all of which was done by Elite. Elite then sold the barrel to J-M Manufacturing Company (JM), not a party here.

JM used Elite’s barrel for just 34 hours, then returned it to Elite due to excessive wear in the liner. Elite notified Bimex, and two Bimex employees went to Elite to inspect the liner. Bimex sent a replacement QC 9100 liner to Elite, but JM refused to accept the barrel with the replacement. JM required Elite to reline the barrel at no cost to JM, with a liner by a different manufacturer. The replacement liner was returned to Bimex, but the original was not.

On July 2, 1985, Elite notified Bimex of JM’s refusal to accept the replacement QC 9100, and stated that Elite would deduct the relining costs from the amount owed Bimex. Bimex disclaimed any liability for the relining costs.

On April 16, 1986, Bimex sued to collect the amount owed by Elite. Elite asserted, as an affirmative defense, that Bimex had breached implied and express warranties with respect to the QC 9100, causing Elite to incur costs exceeding the amount it owed Bimex.

At trial, Lomax and Blechner testified to the above events. The Bimex employees who inspected the original liner after it was returned by JM did not testify. Blechner also testified that tests on the original liner after its return showed that its hardness was far below industry standards.

The trial court found that although Blechner might have told Lo-max at their meeting that JM was the ultimate user, Lomax was not informed that Elite intended to rework the liner into its own barrel. The trial court further found that Blechner made unreasonable assumptions based on Lomax’s assertion that the QC 9100 was “just as good as” other liners used in the industry, and that those assumptions were insufficient to establish any express warranties, absent a showing that the parties intended to incorporate the assumptions into the purchase contract.

The trial court ruled that Bimex had made no warranties, express or implied, concerning the quality of the QC 9100, or its fitness for a particular purpose. The trial court further ruled that Elite had failed to establish that the failure of the QC 9100 liner was due to its defective manufacture. Accordingly, the trial court entered judgment for Bimex. Elite appeals.

Elite argues that the trial court erroneously disregarded evidence that the QC 9100 was defective and that its rulings were contrary to the manifest weight of the evidence. The trial court’s rulings, however, were correct.

Elite argues that Blechner’s testimony concerning the hardness of the QC 9100, and Bimex’s failure to call the employees, required the trial court to rule, as a matter of law, that Bimex breached its warranties with respect to the QC 9100. Elite’s contentions are based on correct legal principles: undisputed testimony binds the trier of fact, and the failure to call witnesses unavailable to the adverse party raises the presumption that their testimony would be adverse. The conclusions Elite draws from those contentions, however, are without merit.

The trial court stated that it disregarded testimony concerning defects in the QC 9100 because Elite had failed to establish that Bimex made any warranties of quality or fitness. Even had Blechner’s testimony been accepted without qualification, and the Bimex employees testified that the QC 9100 was defective, neither testimony would have established that Bimex had made any warranties. The trial court correctly disregarded the evidence.

Elite also argues that the trial court’s rulings were contrary to the manifest weight of the evidence, but the record supports the trial court. The Uniform Commercial Code (Ill. Rev. Stat. 1987, ch. 26, par. 1 — 101 et seq.) provides:

“Where the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller’s skill or judgment to select or furnish suitable goods, there is unless excluded or modified under the next section an implied warranty that the goods shall be fit for such purpose.” (Ill. Rev. Stat. 1987, ch. 26, par. 2 — 315.)

The Commercial Code further provides:

“(1) Express warranties by the seller are created as follows:
(a) Any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise.
(b) Any description of the goods which is made part of the basis of the bargain creates an express warranty that the goods shall conform to the description.
(c) Any sample or model which is made part of the basis of the bargain creates an express warranty that the whole of the goods shall conform to the sample or model.” Ill. Rev. Stat. 1987, ch. 26, par. 2 — 313.

The record shows that Blechner did not inform Lomax at their meeting that Elite required the QC 9100 for a particular application, and that Bimex had no knowledge of a particular requirement by Elite when the invoice for the original QC 9100 was sent. Elite contends that Bimex “probably knew,” by the time the original QC 9100 was shipped, that Elite intended to rework the liner into a barrel for JM, but even had Bimex known then of Elite’s intended use, the shipping occurred after the contract had been made. Clearly, Bimex knew of no particular requirement by Elite at the time the parties contracted for the sale and purchase of the QC 9100. The record further shows that, even assuming Lomax’s assertion that the QC 9100 was “just as good as” other liners was a promise or affirmation of fact, and not simply “puffing,” or opinion, the assertion was not made part of the contract for the QC 9100. Thus, the record supported the trial court’s ruling that Bimex gave no warranties, express or implied, concerning the quality of the QC 9100 or its fitness for a particular purpose.

Finally, the trial court correctly found that Elite failed to show that the failure of its barrel was due solely to breach of warranties. The record shows that the liner failed after undergoing Elite’s reworking process, and Elite offered no evidence to show that the failure of its barrel was caused by defective manufacture of the QC 9100, and not substantial alterations made in the reworking process. Thus, even assuming, arguendo, that Bimex made warranties, Elite failed to show that the warranties had been breached.

In conclusion, the record supports the trial court’s findings that Elite failed to establish that Bimex had made any warranties, express or implied, for the fitness of the QC 9100 liner for a specific purpose, and that Elite failed to show that any failure of the liner was the result of defective manufacture. Elite’s arguments fail to show that the trial court’s rulings were clearly erroneous. Accordingly, we affirm.

Affirmed.

BUCKLEY, P.J, and CAMPBELL, J., concur.


text:
    In re MARRIAGE OF ANN E. ZIMMERMAN, Petitioner-Appellee, and JAMES J. ZIMMERMAN, Respondent-Appellant.
    First District (1st Division)
    No. 1—89—1457
    Opinion filed June 25, 1990.
    Rehearing denied August 9, 1990.

      Riordan, Larson, Bruckert & Moore, of Chicago (Alan L. Fulkerson, of counsel), for appellant.
    Davis, Friedman, Zavett, Kane & MacRae, of Chicago (Marcia S. Lipkin, of counsel), for appellee.
   JUSTICE O’CONNOR

delivered the opinion of the court:

On February 10, 1989, the marriage of Ann and James Zimmerman was dissolved and the property divided. James appeals the distribution of property, arguing that the trial court erred in the valuation of the parties’ real property and abused its discretion in finding that James had dissipated marital assets. For the reasons below, we reverse and remand.

Ann and James were married on May 31, 1980. The marriage was the second for both and produced no children. James, 39, has a bachelor’s degree in management and earns approximately $120,000 per year. Ann, 42, has a master’s degree in education and earns approximately $46,000 per year.

During the marriage, the parties acquired the marital home in Chicago, and a house in Newark, Ohio, which the parties purchased on a contract for deed from James’ mother, who lived in the house. The parties also owned three savings accounts, two IRAs, two pension funds, a Mercedes-Benz, and a Pontiac. In addition, James owned a camper jointly with Patricia Johnson, which he acquired after the parties separated in January 1985.

In December 1985, Ann filed a petition for dissolution of marriage. The trial court entered judgment for dissolution and found the value of the marital estate to be $287,800, of which it awarded $149,300 to Ann and $138,500 to James. The marital home was valued at $82,900 and awarded to Ann. The Newark house was valued at $30,000 and awarded to James. Two of the savings accounts, both IRAs, one of the pension funds, and the Pontiac were awarded to Ann. The remaining savings account and pension fund, the Mercedes, and the camper were awarded to James. In addition, the trial court found that during the period of separation, from 1985 to 1988, James dissipated $67,700 in marital assets through excessive rents and gifts to friends and relatives. The amount of dissipation was added to James’ share of the marital estate. James appeals.

James first challenges the trial court’s valuation of the marital home and the Newark house, arguing that the values were based on mathematical errors and resulted in an inequitable division of the marital estate. The trial court calculated the value of the marital home by subtracting the outstanding mortgage amount, $66,100, from the fair market value of $169,000. That calculation should have yielded a value of $102,900. Instead, the trial court valued the marital home at $82,900. The fair market value of the Newark house was $30,000, but the trial court did not subtract $13,000 still owed by the parties. The trial court’s values were clearly the product of mathematical errors.

We disagree with Ann’s argument that the trial court’s values be left undisturbed. Ann’s argument was based on the premise that the marital home’s fair market value was $135,000. The trial court, however, based the marital home’s $169,000 fair market value on a stipulated appraisal, adjusted for inflation, and there is no indication that the finding was either error or an abuse of discretion. Ann further contends that the Newark house was correctly valued at $30,000 because James’ mother did not pay rent as required by the purchase contract, and James would receive tax benefits from owning the house. Those factors, however, do not affect the value of the property.

If, as the record indicates, the trial court sought to value the properties at the parties’ equity, subtracting the outstanding amount owed from the fair market value, the proper values should have been $102,900 for the marital home, and $17,000 for the Newark house. Although we find no error in assigning the marital home to Ann and the Newark house to James, the erroneous valuation of those assets resulted in a division of property that was not the 52% to 48% split that could be inferred was the intention of the trial court. We therefore remand so that the trial court may correct the mathematical errors and redistribute the marital property as necessary.

James also challenges the finding that he dissipated $67,700 in marital property. James argues that the finding was erroneous because the expenditures for rent and cash gifts which were found to be dissipation were derived from his “disposable” income, i.e., that which remained to him after taxes, withholdings, and contributions to pension funds. James contends that his income was not a marital asset and could not be characterized as such until it was turned into a tangible asset or added to an existing marital asset. We disagree. While we express no opinion concerning the amount of the dissipation, we hold that the trial court’s finding of dissipation was correct.

According to generally accepted accounting principles, income is not an asset, but is realized in a form that is an asset, such as cash, whose net worth is the amount of the income. Section 503(a) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1987, ch. 40, par. 503(a)) provides: “ ‘marital property’ means all property acquired by either spouse subsequent to the marriage.” Thus, when James’ income was realized, it became marital property, and income used for his sole benefit, for purposes not related to the marriage, was dissipation. See In re Marriage of Partyka (1987), 158 Ill. App. 3d 545, 549, 511 N.E.2d 676; In re Marriage of Kaplan (1986), 149 Ill. App. 3d 23, 500 N.E.2d 612; In re Marriage of Fleming (1980), 80 Ill. App. 3d 1006, 400 N.E.2d 625.

Reversed and remanded.

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


author: JUSTICE RIZZI

text:
    PROVIDENCE WASHINGTON INSURANCE COMPANY, Indiv. and as Subrogee of Inland Construction Company, Plaintiff-Appellant, v. AMERICAN BRIDGE DIVISION OF UNITED STATES STEEL CORPORATION, Defendant-Appellee.
    First District (3rd Division)
    No. 1—87—2813
    Opinion filed June 27, 1990.
    Rehearing denied August 10, 1990.

      Kiesler & Berman, of Chicago (Robert L. Kiesler and David J. Kiesler, of counsel), for appellant.
    Gessler, Flynn, Laswell, Fleischmann, Hughes & Socol, Ltd., of Chicago (John K. Hughes, William P. Jones, and Patricia A. Felch, of counsel), for appellee.
   JUSTICE RIZZI

delivered the opinion of the court:

Plaintiff-appellant, Providence Washington Insurance Company, individually and as subrogee of Inland Construction Company (Providence), appeals from an order of the circuit court of Cook County which dismissed counts I and II of its complaint for declaratory judgment against defendant-appellee, American Bridge Division of United States Steel Corporation (American). On appeal, Providence contends that the trial court erred in dismissing counts I and II of its complaint. We affirm.

This action arose out of an underlying lawsuit filed by Alfonso Velasco (Velasco) against Inland Construction Company et al. (Inland), alleging violations of the Illinois Structural Work Act (Ill. Rev. Stat. 1985, ch. 48, par. 60 et seq.) which resulted in injuries to Velasco while he was employed by Inland on a construction project.

Prior to the accident, Inland, as general contractor, and American, as subcontractor, entered into a construction contract for work on the 333 West Wacker Drive project in Chicago. The contract provided, inter alia, that American’s worker’s compensation self-insurance and casualty fund program would serve to indemnify Inland for liabilities arising from American’s negligence which caused any injuries, property damage or death during work on the project. American also purchased an insurance policy from the Insurance Company of North America (INA), which named Inland as an additional insured. Inland purchased its own insurance policy from Providence to cover its potential liability for any injuries or damages occurring during the construction project.

After Velasco’s lawsuit was filed, Inland tendered its defense in the matter to American. However, neither American nor any insurance company retained by American undertook the defense and/or indemnity of Inland in the Velasco lawsuit. Pursuant to its insurance policy issued to Inland, Providence undertook Inland’s defense.

Thereafter, Providence filed a complaint for declaratory judgment against American, Patent Scaffolding Company (another subcontractor), INA and Velasco. Count I of the complaint alleged that the portion of Inland’s and American’s contract which purported to name American as the insurer of Inland through its self-insurance program was void and that American had therefore failed to provide insurance as required by their agreement. The complaint requested that the court therefore enter a declaratory judgment finding and determining that: (1) American breached that portion of its contract with Inland which required it to obtain insurance coverage on behalf of Inland; (2) American is indebted to Providence for a proportionate share of the cost of Inland’s defense; and (3) in the event indemnity payments are required to satisfy the Velasco lawsuit, American should be required to pay a proportionate share of the payment. Count II of the complaint alleged that the self-insurance clause of the parties’ contract was illusory and requested the same relief as count I.

Providence predicated its claims against American on the theories that: (1) American’s failure to procure insurance for Inland gave rise to Providence’s right to subrogate Inland’s contractual rights for indemnification and defense costs from American and (2) American’s failure to procure insurance for Inland triggered the doctrine of equitable contribution among co-insurers.

American filed a motion to dismiss counts I and II of Providence’s declaratory judgment complaint which alleged that because Providence had not paid a settlement or judgment on behalf of Inland it could not be its subrogee and, thus, was not entitled to equitable contribution from American. Following a hearing, the trial court granted American’s motion to dismiss. This appeal followed.

On appeal, Providence contends that the trial court erred in dismissing counts I and II of its complaint for declaratory judgment. Providence further contends that it has standing as subrogee of its insured to seek a declaration that American is liable for a proportionate share of the defense and indemnity payments Providence has made and will make on behalf of Inland. In addition, Providence contends that it has standing to pursue a cause of action for equitable contribution since American has a concurrent obligation to satisfy defense costs and indemnity payments on behalf of Inland. We disagree.

The basic requirements for bringing an action for declaratory relief are (1) there must be an actual controversy, i.e., a legitimate dispute admitting of an immediate and definitive determination of the parties’ rights which will aid in the termination of the controversy or some part thereof and (2) the party bringing the action must be interested in the controversy. (Ill. Rev. Stat. 1987, ch. 110, par. 2—701; Royal Globe Insurance Co. v. Aetna Insurance Co. (1980), 82 Ill. App. 3d 1003, 1005-06, 403 N.E.2d 680, 682.) In addition, before a potential subrogee may assert a right of subrogation it must satisfy in full the claim or debt for which it seeks reimbursement. Until this condition has been met, the insurer’s right to subrogation is future, contingent and uncertain. (Johnson v. State Farm Fire & Casualty Co. (1987), 151 Ill. App. 3d 672, 674, 503 N.E.2d 602, 604.) The right to contribution does not arise by way of an independent agreement between the parties or subrogation; it arises when one insurer pays money for the benefit of another insurer. (Royal Globe Insurance Co., 82 Ill. App. 3d at 1006.) Further, it is well settled that a declaratory judgment action to determine an insurer’s duty to indemnify its insured, brought prior to a determination of the insured’s liability, is premature since the question to be determined is not then ripe for adjudication. Maryland Casualty Co. v. Chicago & North Western Transportation Co. (1984), 126 Ill. App. 3d 150, 156, 466 N.E.2d 1091, 1095-96.

In the present case, when the complaint for declaratory judgment was filed, Providence had not satisfied in full either a settlement or judgment on behalf of its insured, Inland. Thus, Providence was not an “interested” party within the meaning of the declaratory action statute. Further, Providence was not entitled to a declaration of its right to subrogation for the same reason, i.e., failure to satisfy in full the claim or debt for which it sought declaration of a right to contribution. In addition, the underlying lawsuit had not yet concluded and neither Inland nor American had been found liable to Velasco. We therefore conclude that because Providence’s right of subrogation was contingent and neither Inland’s nor American’s liability had been determined when its complaint for declaratory judgment was filed, the trial court did not err in dismissing counts I and II of the complaint.

Accordingly, the judgment of the circuit court is affirmed.

Affirmed.

FREEMAN and McNAMARA, JJ„, concur.


text:
    MAX E. MEYER et al., Petitioners, v. CONTINENTAL ILLINOIS NATIONAL BANK AND TRUST COMPANY OF CHICAGO et al., Respondents (Willard Tipsord et al., Petitioners-Appellants; Keene Corporation, Claimant-Appellee; Mary Gerber Oppenheim, Receiver-Appellee).
    First District (3rd Division)
    No. 1—88—2914
    Opinion filed June 27, 1990.

      James Walker, Ltd., of Bloomington, for appellants.
    Drendel, Schanlaber, Horwitz, Tatnall & McCracken, of Aurora (Richard L. Horwitz and Gretta E. Bieber, of counsel), for appellee Keene Corporation.
    Rudnick & Wolfe, of Chicago (David G. Lynch, of counsel), for appellee Mary Gerber Oppenheim.
   JUSTICE RIZZI

delivered the opinion of the court:

Petitioners-appellants Willard and Elaine Tipsord, Randy and Nancy Wolford, Carl and Imogene Chase, Dorothy Robbins, Windell and Judy Kessinger, Delmar and Mary Alsene and Juan and Guadalupe Hernandez (Petitioners), appeal from an order of the circuit court of Cook County which denied their motions to intervene and for change of venue. We affirm.

This matter originated when North American Asbestos Corporation (North American), an importer and seller of asbestos and asbestos products, filed for corporate dissolution and was subsequently dissolved by the Illinois Secretary of State on May 19, 1978. In July 1981, the trustees of the North American Asbestos Corporation liquidating trust filed a petition for direction regarding its assets and for appointment of a liquidating receiver. Appellee Mary G. Oppenheim (Receiver) was appointed liquidating receiver for the trust assets.

Beginning prior to, but primarily after its dissolution, North American was named in over 500 lawsuits filed in various parts of the country brought by various persons claiming asbestos-related injuries, illnesses and deaths. In 1981, Charlotte Hammond (Hammond) obtained a judgment in the circuit court of the Eleventh Judicial Circuit against North American. Hammond filed garnishment proceedings against the trust assets. Thereafter, Hammond and the Receiver litigated various disputes in the Fourth District Appellate Court and the Illinois Supreme Court. The trial court in the receivership action deferred proceeding with liquidation of the receivership estate during the pendency of the Hammond matters. Throughout the proceedings, Hammond was represented by the attorney for petitioners in the present case.

When Hammond and the Receiver concluded their litigation, the court proceeded to liquidate the receivership estate. By an order entered June 13, 1985, the court invited anyone desiring to file a claim against North American’s assets to do so on or before October 18, 1985. Appellee Keene Corporation (Keene), as well as hundreds of other individuals, filed claims on or before the deadline. None of the Petitioners filed claims before the deadline.

Keene and the Receiver moved to dismiss many of the claims, and after the filing of supplemental claims and a hearing, the court dismissed all claims except for Keene’s. During these proceedings, Delora Stewart (Stewart) also obtained a judgment against North American in the circuit court of the Eleventh Judicial Circuit and initiated garnishment proceedings against one of the banks in which the Receiver had deposited estate funds. Stewart was also represented by the same attorney who represents Petitioners in the present case. The Receiver made a motion in the receivership action to enjoin Stewart from prosecuting the garnishment proceeding. Stewart moved for a change of venue. The trial court denied Stewart’s motion and granted the Receiver’s motion. Stewart appealed, and this court reversed the trial court order denying Stewart’s motion for a change of venue.

On May 18, 1988, some of the Petitioners in this appeal filed a motion for a change of venue. They were not parties to the receivership action and had never filed claims, nor did they present a petition to intervene or any other pleading. The trial court denied their motion for change of venue and they appealed. This court dismissed the appeal because denial of a motion for a change of venue is not an appealable order.

On August 30, 1988, the Receiver presented motions for instructions that would conclude the receivership action and Petitioners filed motions for change of venue and petitions to intervene. The trial court denied the motions for change of venue and the petitions to intervene. The court then entered a final order providing for distribution of the assets of North American to Keene, discharge of the Receiver and termination of the receivership action. This appeal followed.

On appeal, the Petitioners contend that the trial court erred in denying their motion for a change of venue. We disagree. A litigant has the right to one change of venue on grounds of bias or prejudice of the judge, and it is an automatic right in the sense that the application for the change is required to be supported only by generalized allegations, which need not be proved. Ill. Rev. Stat. 1987, ch. 110, par. 2—1001(a)(2); Dayan v. McDonald’s Corp. (1985), 138 Ill. App. 3d 367, 371, 485 N.E.2d 1188, 1191.

If, after the trial judge has ruled on a substantive issue, a party has a legitimate reason to believe the judge is prejudiced, he may still petition for a change of venue. The litigant must set forth in his petition specific allegations to support his charge of prejudice, and the petition will be granted only in the sound discretion of the trial court. (Ill. Rev. Stat. 1987, ch. 110, par. 2—1001(c); Dayan, 138 Ill. App. 3d at 371; Harvey v. Brewer (1987), 166 Ill. App. 3d 253, 258, 519 N.E.2d 939, 943.) Grant or denial of a petition for change of venue will not be disturbed on appeal absent an abuse of discretion. Gouker v. Winnebago County Board of Supervisors (1967), 37 Ill. 2d 473, 475, 228 N.E.2d 881, 882.

In the present case, when Petitioners presented their motions for change of venue, the trial court had ruled that all claims not filed prior to October 18, 1985, were barred. This ruling applied to Petitioners because they did not file their claims prior to that date. As a result, the Petitioners were not actual parties to the receivership action since their petitions to intervene were denied. In re Veatch (1981), 93 Ill. App. 3d 413, 415, 417 N.E.2d 201, 203.

However, assuming, arguendo, that the Petitioners were parties to the action, the court’s prior rulings which, inter alia, barred all claims brought after October 18, 1985, were substantive in nature and, thus, Petitioners’ automatic right to change of venue was waived by their late application. Although the Petitioners were still entitled to request a change of venue by setting forth in their petition specific allegations in support of their charge of prejudice, they failed to proffer any evidence in support of their allegations. The Petitioners based their motion upon the conclusory assertion that the trial court was prejudiced against their counsel. In light of the Petitioners’ failure to timely move for change of venue and/or support their petition with specific allegations in support of their charge of prejudice, we find the trial court’s denial of their motion for change of venue to have been proper. We therefore conclude that the trial court did not err in denying Petitioners’ motion for change of venue.

Because the Petitioners have failed to brief or argue the issue of the trial court’s denial of their motion to intervene, review of that issue is waived. 107 Ill. 2d R. 341(e)(7); Batteast v. Argonaut Insurance Co. (1983), 118 Ill. App. 3d 4, 6, 454 N.E.2d 706, 709.

Accordingly, the judgment of the circuit court is affirmed.

Affirmed.

CERDA, RJ., and FREEMAN, J., concur.


author: JUSTICE FREEMAN

text:
    ALAN P. KURTI et al., Plaintiffs and Counterdefendants-Appellees, v. SILK PLANTS ETC. FRANCHISE SYSTEMS, INC., Defendant and Counterplaintiff-Appellant (Mark Dalen, Defendant).
    First District (3rd Division)
    No. 1—89—2034
    Opinion filed June 27, 1990.

      Kwiatt & Silverman, Ltd., of Chicago (Robert E. Haney, of counsel), for appellant.
    Greenberg, Keele, Lunn & Aronberg, of Chicago (Nathan H. Lichtenstein and Kevin S. Besetzny, of counsel), for appellees.
   JUSTICE FREEMAN

delivered the opinion of the court:

In July 1987, plaintiffs, individual and corporate franchisees of defendant, Silk Plants Etc. Franchise Systems, Inc., filed a six-count complaint for equitable and monetary relief against defendant and its former president, Mark Dalen, predicated on their alleged breach of the parties’ franchise agreements. In July 1989, plaintiffs moved for a temporary restraining order prohibiting defendant’s imminent sale of its assets, totalling $4.1 million, to Foliage Plus, Inc. (FPI). The trial court denied plaintiffs’ motion. However, it did order defendant to deposit into an escrow account the sum of $71,885.04, from the sale, if any, of its assets to FPI “so that plaintiffs will be able to recover money damages if they prevail on their complaint.” Defendant appeals the trial court’s order.

In their complaint, plaintiffs sought, inter alia, rescission of their various franchise agreements with defendant and the restitution of all monies paid defendant, including their initial franchise fees, their “Continuing Services and Royalty” fees, their “Advertising and Development Fund” contribution and interest. The total amount of these payments to defendant by plaintiffs was not stated in the complaint.

In moving for a temporary restraining order, plaintiffs noted their requests in their complaint for restitution of the foregoing monies and for damages in excess of $15,000. Plaintiffs alleged that the sale of defendant’s assets to FPI would involve all or substantially all of its assets and would render defendant a shell corporation unable to satisfy its potential liabilities to plaintiffs. At the hearing on the motion, plaintiffs’ counsel asserted that their initial franchise fees totalled $52,500, their “Continuing Services and Royalty” fees totalled $17,231.17, their “Advertising and Development Fund” contributions totalled $2,152.87 and that interest thereon brought the sum total of these monies to “somewhere around” $71,885.04.

On appeal, defendant essentially asserts that section 4 — 101 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1987, ch. 110, par. 4 — 101), providing for attachment in nine specific cases, is inapplicable to the facts of this case. Therefore, the trial court’s order amounted to an equitable attachment of its property, i.e., the restraining of defendant’s control over property in its possession for the satisfaction of an equitable claim not reduced to judgment (see American Re-Insurance Co. v. MGIC Investment Corp. (1979), 73 Ill. App. 3d 316, 391 N.E.2d 532), in violation of the longstanding rejection of that remedy in Illinois. We agree and reverse.

Section 4 — 101 of the Code allows prejudgment attachment in nine specific cases. Plaintiffs asserted none of those nine specific cases as a basis for the temporary restraining order and the trial court found none of them in entering the contested order. See Ill. Rev. Stat. 1987, ch. 110, par. 4 — 101.

Contesting only defendant’s characterization of the trial court’s order as an equitable attachment, plaintiffs assert that the order falls within the rule that where the funds which are the subject of the injunction are also the subject of the dispute, the use of an injunction restraining control is valid. It is valid, plaintiffs reason, because such a procedure does not amount to an equitable attachment. We disagree. It is clear that, upon analysis, the case law supports defendant’s, rather than plaintiffs’, position.

In American Re-Insurance Co. v. MGIC Investment Corp. (1979), 73 Ill. App. 3d 316, 391 N.E.2d 532, the plaintiff, seeking rescission of a re-insurance agreement with defendants, obtained the court’s leave to deposit into escrow certain funds claimed due and owing by defendants and paid to plaintiff by defendants under the parties’ agreement. Passing upon the defendants’ challenge to the deposit orders as an equitable attachment, the court concluded that the orders did not resemble the injunction reversed in De Beers Consolidated Mines, Ltd. v. United States (1945), 325 U.S. 212, 89 L. Ed. 1566, 65 S. Ct. 1130.

In De Beers, the defendants had been enjoined from withdrawing, selling, transferring, or disposing of any property belonging to them in the United States. The Supreme Court found that the injunction dealt with matters wholly outside the issues in the case, dealt with property which could, under no circumstances, be dealt with in the court’s final order and was, therefore, entered without proper jurisdiction or authority. By contrast, the deposit orders at issue in American Re-Insurance did not deal with funds which were irrelevant to the issues in the case and did not impose a blanket restriction on the defendants’ use of their property. Moreover, the funds covered by the deposit orders were the amounts due from plaintiff to defendants and paid by defendants to plaintiff and were clearly subject to disposition by the court as part of its final order. The American Re-Insurance court also held that the orders at issue therein did not amount to an equitable attachment because the fund at issue was composed of monies whose past and future payment under the parties’ agreement was in dispute and whose disposition would be dealt with in the trial court’s final order.

In Exchange National Bank v. Harris (1984), 126 Ill. App. 3d 382, 466 N.E.2d 1079, the plaintiff bank, which had filed actions at law to recover loans to two general partnerships, also filed a suit in equity to enjoin any distributions from the trust estate of one of the partners of both partnerships. In doing so, the plaintiff alleged that, unless restrained and enjoined pending the entry of final judgments in the law actions, the defendant trustees would be able to jeopardize its ability to enforce payment against the trust estate of the indebtedness owing to it by distributing and depleting the trust corpus. Defendant trustees would thereby undermine the value of any judgment entered in favor of plaintiff in the law actions.

Passing upon the trial court’s dismissal of the equity action on the ground that an injunction would amount to an equitable attachment, the Harris court, after reviewing the case law on the subject, concluded that, in the case before it, the funds in the trust estate “are not designated as the loan funds” involved in the actions at law. (Harris, 126 Ill. App. 3d at 388.) The court further reasoned that the plaintiff was seeking to preserve the decedent’s entire trust fund in order to secure satisfaction of its judgments were it successful against his partnerships. Moreover, the court distinguished Keeshin v. Schultz (1970), 128 Ill. App. 2d 460, 262 N.E.2d 753, wherein property and funds which were the subject of an intrafamily dispute involving the alleged breach of fiduciary duties by testamentary trustees were placed into escrow by the parties’ agreement. Specifically, the Harris court noted that, unlike that case, in the case before it the funds being held in trust were not the funds in controversy in the law actions and would not be the subject of the final adjudication of that litigation. As such, and because the plaintiff had not shown a property interest in the funds whose distribution it sought to enjoin, the court upheld the denial of the injunction as an equitable attachment. Harris, 126 Ill. App. 3d at 388-89.

Plaintiffs assert that, unlike the situation in Harris, the sums ordered into escrow here are the “very same funds” paid by plaintiffs to defendant and which plaintiffs seek to recover if their franchise agreements are rescinded and are the “same funds” in controversy between the parties in counts II and III of their complaint.

Plaintiffs’ characterization of the trial court’s order as dealing with the “same” and the “very same” funds at issue between the parties can be interpreted two ways. It can be interpreted as meaning that the order states, in effect, “place the funds which plaintiffs paid as initial franchise fees, continuing services and royalty fees, and advertising and development fund contributions under their franchise agreements with you, defendant, in escrow.” If this is the meaning which plaintiffs intend by their characterization, they are clearly wrong as a matter of fact.

The order at issue states:

“Defendant[ ], Silk Plants Etc. Franchise Systems, Inc. are [sic] ordered to deposit into an interest bearing escrow account the sum of $71,885.04 from the sale, if any, of assets to Foliage Plus, Inc. Said sum is to be escrowed so that plaintiffs will be able to recover money damages if they prevail on their complaint and said sum, therefore, is to remain in escrow until judgment is entered on [pjlaintiff’s complaint.”

Clearly, the order cannot be given the first meaning which plaintiffs might intend. The order does not identify the sum of $71,885.04 as being the total of the various fees and contributions paid defendant under the plaintiffs’ franchise agreements. More importantly, the order does not identify the funds out of which the amount stated is to be paid into escrow. That is, it does not state, for instance, that defendant is to pay the funds paid it by plaintiffs as and for initial franchise fees, continuing services and royalty fees, and advertising and development fund contributions under their franchise agreements into escrow. What the order merely does state is that defendant is required to pay into escrow a certain portion of the funds paid by FPI as the purchase price of defendant’s assets. The order is not reasonably susceptible to the first meaning which plaintiffs might intend by their characterization of it.

The second meaning which plaintiffs might intend by their characterization of the trial court’s order is that it states, in effect, “place the sum of the funds which plaintiffs paid as initial franchise fees, Continuing Services and Royalty fees, and Advertising and Development Fund contributions under their franchise agreements with you, defendant, in escrow.” However, the fact that the amount ordered into escrow equals the amount of the monies of which plaintiffs seek restitution in their complaint, plus interest, is clearly insufficient for the order of deposit into escrow to avoid the “equitable attachment” label. The case law requires that such a court order be, at least, reasonably susceptible to the first meaning to which defendant’s unwarranted characterization of the court order here is susceptible.

This conclusion is made clear by Carriage Way Apartments v. Pojman (1988), 172 Ill. App. 3d 827, 527 N.E.2d 89. Pojman involved a dispute between partners over the proceeds of the sale of real estate owned by their partnership. Pursuant to the defendants’ motion for injunction, the trial court ordered the plaintiffs, who had received the proceeds of the sale, to deposit a certain sum, apparently representing the defendants’ share of the proceeds but not so identified in the order, into an escrow account. In appealing the trial court’s order, the plaintiffs contended that the order amounted to a prejudgment attachment. The defendants, similarly to plaintiffs here, defended the order as relating to “specific funds.”

In deciding the issue, the court first noted, inter alia, the longstanding rule against equitable attachment in Illinois and then, citing American Re-Insurance, stated, “However, where the funds which are the subject of the injunction are also the subject of the dispute, the use of an injunction restraining control is valid.” (Pojman, 172 Ill. App. 3d at 838.) The court then concluded, contrary to the defendants’ argument, that the trial court’s order did not identify specific funds to be deposited in escrow. As such, the court found, it could not be said that the funds ordered to be deposited were related to the case. For those reasons, the court found the trial court’s injunction order to be a de facto attachment which was invalid for its failure to enumerate any of the grounds specified in section 4 — 101 of the Code as a basis for its entry.

To distinguish Pojman and to bring the order at issue within the ambit of American Re-Insurance, plaintiffs assert:

“In the present case, Plaintiffs sought to restrain the distribution of only those sums which were definable, ascertainable and would be the subject of the trial court’s final adjudication. Unlike the injunction considered in [De Beers], the order here requiring a sum certain to be escrowed is not overbroad. The sum ordered deposited *** will be a part of the court’s final adjudication of counts II and III of the complaint. The order did not impose a blanket restriction on [defendant’s] use of its property or prevent it from carrying on normal business activities. The trial court merely earmarked $71,885.04 of the proceeds from the sale of [defendant’s] assets from which the Plaintiffs may recover under the *** complaint.”

Admittedly the trial court’s order here does not impose a blanket restriction on defendant’s use of its property, as the court noted in American Re-Insurance, and restrains the distribution of only such portion of the proceeds of any sale of assets by defendant which, we assume, equals the amount of the various fees and contributions plaintiffs paid under their franchise agreements. However, what plaintiffs nowhere address in their brief is what property right they have to any of the funds which defendant obtains from the sale of its assets to a third party, as opposed to the funds which defendant obtained from plaintiffs under their franchise agreements. Perhaps they do not explicitly address this question because the short answer is that they have no cognizable property right in such funds, as opposed to the funds which they paid defendant. (See Exchange National Bank v. Harris (1984), 126 Ill. App. 3d 382, 466 N.E.2d 1079.) In this regard, we find it unreasonable to presume that FPI will pay liquid assets to defendant for its liquid assets such as cash on hand or in bank accounts of one type or another. As such, it cannot be seriously contended that the proceeds of the sale of defendant’s assets represent the fruits of the funds paid defendant by plaintiffs such as to give plaintiffs a property interest therein.

Moreover, while the trial court’s order ensures that the funds ordered deposited will be a part of the final adjudication of this case, plaintiffs do not address the broader question of why that result is proper. Given that they have no property interest in those funds, plaintiffs cannot legitimately make that argument. The funds ordered deposited in this case are part of the proceeds of the sale of what, we find it reasonable to presume, are defendant’s nonliquid assets and are, thus, not a proper subject of the litigation between the parties. Moreover, notwithstanding that they may have been specifically identified in the order, they have no relationship to this case whatsoever and are not the funds in controversy between the parties.

In the final analysis, the trial court’s order fails to pass all but two of the tests articulated in the case law to determine whether or not an attachment is equitable in nature. In addition to what we have already stated, we find that, as in De Beers, the order at issue deals with matters, i.e., a sale of assets, wholly outside the issues in the case, deals with property which cannot, under any circumstances, be dealt with properly in a final order in this case, and was entered without proper jurisdiction and authority. Moreover, unlike the situation in American Re-Insurance, the fund (which term is not synonymous with the term “sum”) at issue is not composed of monies whose ownership is in dispute.

In view of our conclusions, we need not decide whether plaintiffs otherwise satisfied the general requirements for injunctive relief.

For all of the foregoing reasons, we reverse the order requiring defendant to deposit into escrow $71,885.04 of the proceeds of any sale of its assets to Foliage Plus, Inc.

Reversed.

CERDA, P.J., and RIZZI, J., concur.

       Parenthetically, we also note that the case law also belies plaintiffs’ assertion at oral argument that the rule against equitable attachment applies only to claims for “general, speculative” damages.


author: PRESIDING JUSTICE CERDA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GLEN VERSER, Defendant-Appellant.
    First District (3rd Division)
    No. 1—87—1512
    Opinion filed June 20, 1990.

      Karen Daniel, of State Appellate Defender’s Office, of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, James E. Fitzgerald, and Pradeep Roy-Singh, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE CERDA

delivered the opinion of the court:

Following a bench trial in the circuit court of Cook County, defendant, Glen Verser, was convicted of the murder and attempted armed robbery of Ismael Nunez and the attempted murder, attempted armed robbery and aggravated battery of Silvestre Compos. (Ill. Rev. Stat. 1985, ch. 38, pars. 9-1(a)(1), (a)(2), (a)(3), 8-4, 18-2(a), 12-4(a), 12 — 4(b)(1).) Defendant was concurrently sentenced to an extended term of 60 years for murder, an extended term of 60 years for attempted murder, and two maximum nonextended prison terms of 15 years each for the attempted armed robberies. The aggravated battery convictions merged into the attempted murder conviction.

On appeal, defendant contends that both of the extended-term sentences must be vacated because the trial court erroneously relied upon serious bodily harm and compensation as aggravating factors. Defendant further contends that the extended-term sentence for murder must be vacated because the trial court abused its discretion in finding that his conduct was exceptionally brutal or heinous. Finally, he contends that the extended-term sentence for attempted murder must be vacated pursuant to People v. Jordan (1984), 103 Ill. 2d 192, 469 N.E.2d 569, because attempted murder was not the most serious offense for which he was convicted.

On the evening of November 29, 1985, in the parking lot of the Casa Rita Restaurant at 1141 North Ashland in Chicago, defendant fatally shot Ismael Nunez and shot and wounded Silvestre Compos during a robbery attempt. Earlier in the evening defendant had picked up a gun and had told his friend, Albert Pigram, “Let’s go get some money.” They met Vinada Robinson, and defendant then apparently placed the gun underneath the hood of the car. They then drove around for awhile.

Meanwhile, Nunez and Compos had been driving around in a van. They had stopped at numerous taverns and had purchased 24 cans of beer. At one point, their van passed the car containing defendant, Pi-gram, and Robinson. Compos was drinking in the van, and defendant said, “Those are the ones.”

When the van proceeded to the restaurant parking lot, defendant’s group followed. Defendant exited the car and approached its hood, evidently to retrieve his .357 magnum gun. Defendant or Pi-gram then opened the driver’s door of the van, and they confronted Nunez and Compos. Nunez was sitting in the driver’s seat, and Compos was sitting in the passenger’s seat. Defendant announced a “stick-up” and demanded their money. Pigram went around the van and opened the passenger’s door. Compos, who spoke little English, said that he did not have any money. Either Compos or Nunez also hollered, “No comprende.” When Compos tried to kick Pigram, defendant held the gun in one hand and shot Compos once in the back, lacerating his right kidney and perforating his colon. As Compos slumped out of the van and onto the pavement, Nunez tried to grab the gun away from defendant. Defendant, however, pushed him, took two steps back and, holding the gun in both hands, aimed it at Nunez and fatally shot him once in the left side of the chest. Pigram, who already had returned to the getaway car, noticed that defendant walked back to the car 15 seconds later with the gun dangling down at his side. Defendant suggested to Pigram and Robinson several times that they had not seen anything. Defendant also stated, “Keep this to yourself” and “that’s all in the game.” After they had dropped off Robinson, defendant told Pigram, “Let us go get some more,” and they drove around the Logan Square area. When defendant drove Pi-gram home, he again told Pigram, “Keep this to yourself.” According' to Robinson, when he saw defendant the next day defendant was “bragging about what he had done, as if it was [sic] a joke.” Defendant subsequently warned Robinson not to testify in court.

When the police found Nunez and Compos, Nunez had no wallet, identification or money, and coins were strewn on the ground near Compos. Nunez was found sitting slumped in the driver’s seat of the van.

At the conclusion of the trial, defendant was found guilty of the murder and attempted armed robbery of Nunez and the attempted murder, attempted armed robbery and aggravated battery of Compos. During sentencing proceedings, the trial court found that defendant was eligible for the death penalty. In aggravation, the assistant State’s Attorney introduced certified copies of defendant’s three prior felony convictions (two for theft and one for robbery) and pointed out that defendant was on probation for the prior offenses at the time that he committed the crimes in the case at bar. In árguing that defendant should be sentenced to death, the assistant State’s Attorney observed that defendant had been given an opportunity to rehabilitate himself by being placed on probation for his previous crimes, but that he “spit right in the face of the judicial system” and “went on the prowl” while still on probation for three felonies. The prosecutor argued further that defendant’s conduct was heinous because he had shot Nunez and Compos “point blank, in a cold blooded, ruthless, unmerciful fashion.”

In mitigation, defense counsel argued that the prior felony convictions were six days apart, that defendant had no drug or alcohol problems, that he was capable of rehabilitation, that he had been employed at one job for a year and at another job for four months, that his employer would testify that he was trustworthy and a good worker, that his “very religious” family was present in court, and that he was intelligent, independent, “very well kept,” “neat,” “clean,” and “well dressed.”

Defendant requested the court’s mercy and stated that his “heart [went] out to the victim’s family.”

The trial court made the following remarks in imposing defendant’s sentences:

“THE COURT: In the matter of the People versus Glen verser [sic], the Court having reviewed the facts and circumstances and the evidence heard in this case and the nature of the finding of guilty of Mr. Verser; the Court having reviewed the pre-sentence investigation prepared by the Adult Probation Department; the Court having reviewed the prior criminal history of the Defendant;
The Court considering the statement of the Defendant, also considering the arguments of counsel; the Court has reviewed all of the statutory factors in aggravation, specifically, the Defendant’s conduct, cause [sic] or threatened serious bodily harm;
The Defendant received compensation for committing the offense at that time. There is no question about, number 1, his conduct was of the most serious nature in that he caused the death of Mr. Nunez. And he also caused the injury by virtue of the attempt murder of Mr. Compos.
Number 2, the Defendant received compensation for committing the offense. He was in the process of committing armed robbery upon those individuals.
Number 3, the Defendant does have a prior history of criminal activity, having been placed on probation for 3 prior convictions.
Number 7, the sentence is necessary to deter others from committing the same crime. Those factors I reviewed, the statutory factors; specificly [sic] to the conduct of Mr. Verser. Those are the factors I reviewed that apply to the conduct of Mr. Verser.
I have reviewed all of the factors in mitigation specifically set forth in the statute. I do not find any of those factors in mitigation applicable to the Defendant in this case.
The statute specifically provides that where the conduct of the individual and the results of his conduct are that when a defendant is convicted of any felony and the court finds that the offense is accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty; specifically finding that with regard to the facts and the circumstances of the shooting of Mr. Sylvestry [sic] Compos in the back while in the commission of a forcible felony of attempt armed robbery, are indicative of brutal and heinous behavior and indicative of wanton cruelty.
The Court further finds the facts and circumstances surrounding the murder of Ishmael [sic] Nunez, while in the commission of an armed robbery are also indicative of brutal and heinous behavior and indicative of wanton cruelty.
Considering all these factors, the 4 counts of murder, the sentence of this Court is 60 years in the Illinois Department of Corrections for the murder of Ishmael [sic] Nunez. For the attempt murder of Sylvestry [sic] Compos, attempt murder being a Class X felony, the Doctrine of Extended Term applies. The sentence of the Court will be 60 years in the Illinois Department of Corrections. That to run concurrent with the sentence for the murder of Mr. Nunez. The counts of aggravated battery will merge with the count of attempt murder.
There were 2 counts of attempt armed robbery, for the armed robbery of Ishmael [sic] Nunez and for the attempt armed robbery of Sylvestry [sic] Compos, the sentence of the Court will be 15 years in the Illinois Department of Corrections, as to each count. And that again is to run concurrent with the 60 years sentence for the murder of Ishmael [sic] Nunez, and the 60 years sentence for the attempt murder of Sylvestry [sic] Compos, all sentences to run concurrent.”

Defendant then filed a motion for a new sentencing hearing, contending that the crimes were not exceptionally brutal or heinous and that the court erroneously had relied upon compensation as an aggravating factor. In denying defendant’s motion, the court stated as follows:

“I believe the statement I made was not that the defendant would receive compensation but he was attempting to gain compensation, that being the moneys he was attempting to obtain in robbing the people [sic] that was murdered and the person that was shot.
* * *
Any time you shoot somebody in the back, it is brutal and heinous behavior, and any time you shoot somebody in the heart and kill them is brutal and heinous behavior.”

The first issue on appeal is whether the trial court erroneously relied upon serious bodily harm as an aggravating factor during sentencing by improperly focusing upon the fact that Nunez died. Section 5—5—3.2(a) of the Unified Code of Corrections (Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 5—3.2(a)) provides in part as follows:

“Factors in Aggravation, (a) The following factors shall be accorded weight in favor of imposing a term of imprisonment or may be considered by the court as reasons to impose a more severe sentence under Section 5 — 8—1:
(1) the defendant’s conduct caused or threatened serious harm;
(2) the defendant received compensation for committing the offense;
(3) the defendant has a history of prior delinquency or criminal activity;
* * *
(7) the sentence is necessary to deter others from committing the same crime; [and]
* * *
(10) *** the defendant was convicted of a felony committed while he was serving a period of probation or conditional discharge for a prior felony.”

In a prosecution for murder or manslaughter, it is improper for a sentencing court to consider the victim’s death in applying the statutory aggravating factor that defendant caused serious bodily harm to the victim, because death is implicit in the offenses of murder and manslaughter and the legislature took death into account when it established the range of penalties for the crimes. (See People v. Saldivar (1986), 113 Ill. 2d 256, 272, 497 N.E.2d 1138; People v. Tompkins (1987), 155 Ill. App. 3d 380, 382-83, 508 N.E.2d 481.) However, the trial court’s perfunctory observation that defendant “has murdered a person” or the trial court’s simple acknowledgment that the victim died does not establish that the trial court improperly considered death as an aggravating factor. (People v. Bennett (1987), 159 Ill. App. 3d 172, 185, 511 N.E.2d 1340; People v. McPherson (1985), 136 Ill. App. 3d 313, 317, 483 N.E.2d 592.) In McPherson, the court explained:

“[I]t is unrealistic to suggest that the judge in sentencing the defendant must avoid mentioning the fact that someone has died or risk committing reversible error.” (136 Ill. App. 3d at 317.)

Furthermore, a sentencing court may consider the force employed and the physical manner in which defendant caused the victim’s death (People v. Saldivar, 113 Ill. 2d at 271; People v. Crow (1988), 168 Ill. App. 3d 744, 756-57, 521 N.E.2d 594); and the court may consider the degree of harm even where serious bodily harm is implicit in the offense (People v. Saldivar, 113 Ill. 2d at 269; People v. Floyd (1987), 160 Ill. App. 3d 80, 87-88, 512 N.E.2d 1378; People v. Jones (1986), 140 Ill. App. 3d 660, 674-75, 488 N.E.2d 1363; People v. Lampton (1982), 108 Ill. App. 3d 41, 47, 438 N.E.2d 915). Moreover, even where the trial court improperly focused upon the victim’s death as an aggravating factor in a murder case, remand for resentencing was not required where the trial court also considered other aggravating factors, such as defendant’s prior criminal history, the fact that he was on probation when he committed the murder, and the need to deter others from similar misconduct. (People v. Moore (1988), 178 Ill. App. 3d 531, 544, 533 N.E.2d 463.) Remand for resentencing is not required where the record discloses that the weight accorded to an improper aggravating factor was so insignificant that it did not lead to a greater sentence. People v. Bourke (1983), 96 Ill. 2d 327, 332, 449 N.E.2d 1338.

In the case at bar, the trial court merely acknowledged that Nunez had died, stated that it had considered the circumstances surrounding the murder, and applied the statutory factors to defendant’s conduct. Given these circumstances, we conclude that the trial court did not rely upon the victim’s death in sentencing defendant.

However, even assuming that the trial court focused upon the victim’s death in evaluating the statutory aggravating factor of serious bodily harm, we conclude that the error was harmless. The trial court expressly considered other aggravating factors. The court considered defendant’s prior criminal convictions and the need for deterrence. The court also considered the facts and circumstances of the case and therefore the manner in which defendant caused the victim’s death: defendant held the gun in both hands, took deliberate aim and shot Nunez at close range in the chest. The court further considered the arguments of counsel, in which the assistant State’s Attorney observed that defendant was on probation for several prior felony convictions at the time that he committed the crimes in this case. Thus, despite defendant’s expression of remorse, he previously had been given an opportunity to rehabilitate himself, but he exhibited recidivism and an unwillingness to do so. The court also considered the presentence investigation report (PSI), which disclosed that defendant had several juvenile adjudications (for unlawful use of a weapon, possession of cannabis and aggravated battery). The PSI disclosed further that defendant admitted that he previously had been a member of a street gang and that his reason for leaving his job was that he “just quit.” Finally, the trial court expressly found the statutory factors in mitigation to be inapplicable. (Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 5—3.1.) Given the circumstances, we find that any weight improperly placed upon the death of Nunez as an aggravating factor was insignificant.

The next issue on appeal is whether the trial court erroneously relied upon compensation as an aggravating factor. A defendant’s acquisition of compensation for committing an offense is one of the statutory aggravating factors quoted earlier in this order. (Ill. Rev. Stat. 1985, ch. 38, par. 1005—5—3.2(a)(2).) However, a trial court properly may consider compensation as an aggravating factor only where defendant was paid to commit the crime. (People v. Conover (1981), 84 Ill. 2d 400, 405, 419 N.E.2d 906; People v. Bivens (1987), 156 Ill. App. 3d 222, 233-34, 509 N.E.2d 640.) A trial court’s improper consideration of the proceeds of a robbery as an aggravating factor is harmless error where the trial court considered other factors in aggravation and the weight accorded to the improper factor was insignificant. (People v. McLean (1987), 155 Ill. App. 3d 1066, 1073-74, 508 N.E.2d 1196; People v. DeSimone (1982), 108 Ill. App. 3d 1015, 1019, 439 N.E.2d 1311.) As noted previously, the trial court in the instant case considered other aggravating factors, such as defendant’s criminal history, his probationary status at the time that he committed the crimes in the case at bar, and the need for deterrence. Therefore, we conclude that the trial court’s reliance upon compensation as an aggravating factor does not require that the cause be remanded for resentencing.

The next issue is whether the trial court abused its discretion in finding defendant’s conduct to be exceptionally brutal or heinous and in sentencing defendant to an extended term for murder. An extended-term sentence may be imposed when defendant is convicted of a felony and the court finds that the crime was “accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty.” (Ill. Rev. Stat. 1985, ch. 38, par. 1005—5—3.2(b)(2).) “Heinous” means “ ‘hatefully or shockingly evil: grossly bad: enormously and flagrantly criminal’ ”; “brutal” means “ ‘grossly ruthless,’ ” “ ‘devoid of mercy or compassion: cruel and cold-blooded.’ ” (People v. La Pointe (1981), 88 Ill. 2d 482, 501, 431 N.E.2d 344, quoting Webster’s Third New International Dictionary (1971); see also People v. Johnson (1987), 159 Ill. App. 3d 991, 1001, 513 N.E.2d 852.) The trial court has discretion to determine what type of conduct constitutes exceptionally brutal or heinous behavior. (People v. Edens (1988), 174 Ill. App. 3d 1033, 1045, 529 N.E.2d 617.) In a murder prosecution, the presence of exceptionally brutal or heinous behavior increases the permissible sentence from a 20- to 40-year term to a 40- to 80-year term. (See Ill. Rev. Stat. 1985, ch. 38, pars. 1005 — 8—1(a)(1)(a), 1005 — 8—2(a)(1); see also People v. Thomas (1988), 168 Ill. App. 3d 113, 118, 522 N.E.2d 253; People v. Clay (1984), 124 Ill. App. 3d 140, 153, 463 N.E.2d 929.) In an attempted murder prosecution, the presence of exceptionally brutal or heinous behavior increases the permissible sentence from a 6- to 30-year term to a 30- to 60-year term. See Ill. Rev. Stat. 1985, ch. 38, pars. 8 — 4(c)(1), 1005-8-1(a)(3), 1005-8-2(a)(2).

In People v. Cabrera (1987), 116 Ill. 2d 474, 508 N.E.2d 708, a 60-year extended-term sentence for murder was not excessive where the victim died of strangulation and subdural hemorrhage due to blunt trauma. In People v. Moritz (1988), 173 Ill. App. 3d 498, 527 N.E.2d 1102, a 70-year extended term for murder was not excessive where the defendant abducted the victim by forcing her into a car, searched for an isolated location, shot her twice, and then drove off in her car. In People v. Johnson (1987), 159 Ill. App. 3d 991, 513 N.E.2d 852, a 60-year extended-term sentence for murder was not excessive and defendant’s behavior was exceptionally brutal or heinous where the defendant became angry during an armed robbery when the murder victim complied with the request for his money and wallet by throwing them on the floor. The defendant told the victim to walk out the door and then shot him in the back of the head.

On the other hand in People v. Hanna (1989), 185 Ill. App. 3d 1069, 542 N.E.2d 131, the defendant also hunted for an armed robbery victim with a concealed gun. He also shot his victim at close range after the victim resisted. In that case the court stated, “Wiley’s murder, although indeed tragic, was unaccompanied by any circumstances which would justify an extended sentence.” (Hanna, 185 Ill. App. 3d at 1079.) In People v. Andrews (1989), 132 Ill. 2d 451, 548 N.E.2d 1025, the victim and his girlfriend were in a car stopped at a traffic signal. Defendant pointed a gun at the victim. The victim told the two men to “be cool, we’ll give you what you want.” Defendant then shot the victim in the head and hit the woman in the eye with his gun. The supreme court stated:

“Although the victim was defenseless and the defendant could have achieved his goal of robbing the victim and the victim’s girlfriend without killing the victim, every single murder is by nature unnecessary; section 5 — 5—3.2(b)(2), however, requires that the murder be ‘exceptionally’ brutal and heinous. All murders are brutal or heinous to a certain degree. Moreover, many murdered robbery victims are defenseless when killed. Section 5 — 8—2, however, allowing for extended-term sentences, ‘was not intended to convert every offense into an extraordinary offense subject to an extended-term sentence.’ ” Andrews, 132 Ill. 2d at 456-66.

In this case there is no evidence in the record that the defendant indicated prior to the attempted robbery that he intended to kill the victim. The defendant also stated his remorse for the victim’s family at the sentencing hearing. Also, the prior felony convictions of the defendant were six days apart. Therefore, we hold that the trial court abused its discretion in finding defendant’s conduct to be exceptionally brutal or heinous and entering an extended-term sentence.

The final issue is whether defendant’s extended-term sentence for attempted murder must be vacated pursuant to People v. Jordan (1984), 103 Ill. 2d 192, 205-06, 469 N.E.2d 569. Under section 5—8—2(a) of the Unified Code of Corrections (Ill. Rev. Stat. 1985, ch. 38, par. 1005—8—2(a)), a trial court is empowered to impose an extended-term sentence only on those offenses which are within the most serious class of offenses for which defendant was convicted. Section 5—8—2(a) states:

“A judge shall not sentence an offender to a term of imprisonment in excess of the maximum sentence authorized by Section 5—8—1 for the class of the most serious offense of which the offender was convicted unless the factors in aggravation set forth in paragraph (b) of Section 5—5—3.2 were found to be present.” (Emphasis added.) (Ill. Rev. Stat. 1979, ch. 38, par. 1005—8—2(a).)

In Jordan, the court held that a defendant who has been convicted of multiple offenses of different classes may be sentenced to an extended term only for a conviction within the most serious class and then only if the offense was accompanied by exceptionally heinous or brutal behavior. (People v. Jordan, 103 Ill. 2d at 205-06; see also People v. Willis (1989), 184 Ill. App. 3d 1033, 1046-47; People v. Clemons (1989), 179 Ill. App. 3d 667, 674, 534 N.E.2d 676; People v. Bivens (1987), 156 Ill. App. 3d 222, 234, 509 N.E.2d 640.) Murder is a more serious offense than attempted murder, which is treated as a Class X offense for sentencing purposes. (Ill. Rev. Stat. 1985, ch. 38, par. 8—4(c)(1).) Relying on Jordan, defendant contends that he cannot be sentenced to an extended term for attempted murder because he was sentenced to an extended term for the more serious offense of murder.

Jordan, however, does not prohibit multiple extended-term sentences under certain circumstances, such as where a defendant has been sentenced to death for murder and to an extended term for armed robbery (People v. Neal (1985), 111 Ill. 2d 180, 203-05, 489 N.E.2d 845), or where a defendant has been sentenced to life imprisonment for murder and to an extended term for armed robbery (People v. Young (1988), 124 Ill. 2d 147, 166, 529 N.E.2d 497), or where defendant had a joint sentencing hearing after separate trials resulting in separate convictions arising out of distinct factual situations (People v. Berry (1988), 175 Ill. App. 3d 420, 430, 529 N.E.2d 1001; People v. Whitson (1984), 127 Ill. App. 3d 999, 1006, 470 N.E.2d 1054).

In Jordan the defendant was sentenced to concurrent extended terms of imprisonment of 60 years for felony murder by accountability, and 14 years for kidnapping, a Class 2 felony. The supreme court held:

“Accordingly, we hold that the extended term sentence imposed for defendant Jordan’s conviction for kidnaping was improper, as that offense did not belong to the most serious class of offense of which he was convicted.” Jordan, 103 Ill. 2d at 206.

Following the decision in Jordan, the appellate courts have vacated or reduced extended terms for less serious felonies where an extended term was imposed for the more serious offense. In People v. Holiday (1985), 130 Ill. App. 3d 753, the defendant received an extended term for murder and also extended terms for aggravated battery and armed robbery. The extended terms for aggravated battery and armed robbery were vacated. In People v. Akins (1984), 128 Ill. App. 3d 1009, 471 N.E.2d 1003, the defendant received extended terms for automobile theft and armed robbery. The extended term for automobile theft was reduced. In People v. Bivens (1987), 156 Ill. App. 3d 222, 509 N.E.2d 640, the defendant was convicted of 10 armed robberies and given an extended term for escape. The court held it was improper to give an extended term for escape.

In this case, since the defendant was given an extended-term sentence for the most serious offense, murder, he could not be given an extended-term sentence for attempted murder, a less serious class offense. Accordingly, we vacate defendant’s extended-term sentences for murder and attempted murder. The cause is remanded for a new sentencing hearing.

Vacated and remanded.

WHITE and FREEMAN, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LARRY SANDERS, Defendant-Appellant.
    First District (3rd Division)
    No. 1—87—2673
    Opinion filed June 27, 1990.
    Rehearing denied August 9, 1990.
    Michael J. Pelletier and Mitchell Katten, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb and Kevin Sweeney, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE FREEMAN

delivered the opinion of the court:

Defendant, Larry Sanders, was charged in three separate informations with the offense of selling a controlled substance, to wit, cocaine, to an undercover police officer on three separate occasions. After a trial in the circuit court of Cook County, a jury acquitted defendant of the charge of delivery on the last occasion. The trial court thereafter denied defendant’s motion to dismiss the two remaining charges based on the doctrine of collateral estoppel. He appeals.

In view of the facts that defendant asserted an entrapment defense at trial and that he relies upon the assertion of that defense in arguing his appeal, and in view of our disposition of his appeal, the facts of the case which we need to note are few. Specifically, defendant was tried for delivering cocaine to an undercover police officer on June 6, 1986. In the course of that trial, the State introduced evidence of defendant’s delivery of cocaine to the same police officer on two prior occasions, May 15 and 22,1986.

Opinion

On appeal, defendant contends, essentially as he did in the trial court, that the State is collaterally estopped from trying him on the charges of delivering cocaine on May 12 and 22 because any trial of those charges would violate the double jeopardy clause of the United States Constitution. (U.S. Const., amends. V, XIV.) That is so, defendant reasons, because the acquittal in the trial of the June 6 charge had to have been based on a finding that he was entrapped into each delivery of cocaine made to the undercover police officer. That is so, he concludes, because the evidence at trial established a continual pattern of improper inducements, by the undercover police officer and the officer’s paid informant, to commit the offenses with which he was charged. The evidence did not establish separate and independent transactions.

The leading case on the issue presented here is Ashe v. Swenson (1970), 397 U.S. 436, 25 L. Ed. 2d 469, 90 S. Ct. 1189. In Ashe, several men robbed six others playing poker. Ashe was tried for the robbery of one of the six poker players. He was acquitted after the witnesses were unable to identify him. Ashe was then tried and convicted of the robbery of another of the poker players. In reversing the conviction, the United States Supreme Court held that the doctrine of collateral estoppel, which simply meant that an issue of ultimate fact, one decided by a valid final judgment, could not be relitigated by the same parties, was incorporated into the Federal double jeopardy clause. The court further instructed that the doctrine was to be applied, not with the hypertechnical and archaic requirements of a 19th century pleading book but with realism and rationality. Moreover, it instructed that, where a prior trial ended in an acquittal, a court must examine the record and take into account the pleadings, evidence, charge and other relevant matter and determine whether a finder of fact could rationally have based its verdict on an issue other than that which the defendant seeks to bar from consideration in a second trial. In Ashe, for instance, the court found that the only issue the jury therein could have rationally decided was whether Ashe was one of the robbers. Therefore, the court concluded that the jury verdict that he was not estopped the State from relitigating the issue.

Notwithstanding the Illinois progeny of Ashe which both defendant and the State have cited in support of their contrary arguments, we find the case of People v. Elvart (1989), 189 Ill. App. 3d 524, 545 N.E.2d 331, which neither party has cited but which our own research revealed, to be dispositive of the issue in this case. In Elvart, as in this case, the defendant was charged with delivering cocaine on three separate dates. As in this case, the charge relating to the last delivery was tried first and the defendant was acquitted. At trial, the defendant, like defendant here, had raised the defense of entrapment and the State had introduced the two earlier transactions to prove the defendant’s predisposition to commit the later offense. The defendant was subsequently convicted of the earlier offenses.

The defendant in Elvart contended that the prosecution of those offenses was barred by either the double jeopardy clause or collateral estoppel. In rejecting the defendant’s double jeopardy argument, the appellate court relied, inter alia, on the facts that the defendant had not been charged with the earlier offenses at the time of trial of the later offenses and that proof of those offenses was neither at issue nor required for the prosecution of the later offense. In rejecting the defendant’s collateral estoppel argument, the court reasoned that: (1) the earlier offenses were not ultimate issues of fact in the prosecution of the later offense; (2) they were admitted at the earlier trial for the limited purpose of rebutting the defendant’s entrapment defense; (3) proof of the earlier offenses was not required to sustain a conviction for the later offense; (4) defendant’s acquittal of the later offense was not inconsistent with a finding of guilt of the earlier offenses. Elvart, 189 Ill. App. 3d at 531-32.

It is manifest from the foregoing that the Elvart court implicitly adopted the distinction, made in many double jeopardy/collateral estoppel cases, between evidentiary and ultimate facts in finding that the State was not collaterally estopped from prosecuting the defendant for the earlier offenses notwithstanding the admission of evidence of those offenses at the trial of the later offense.

The parties have not discussed the distinction recognized in Elvart (see also People v. Mendoza (1981), 94 Ill. App. 3d 1119, 419 N.E.2d 390) between evidentiary facts and ultimate facts in the collateral estoppel context. We are thus left to address on our own how that distinction affects our decision in this case. So doing, we conclude that, in this case, comparably to Mendoza and Elvart, the earlier offenses were merely evidentiary facts at the trial of the later offense. As in Elvart, the May 15 and 22 deliveries were not ultimate issues of fact in the prosecution of the June 6 offense and were admitted at the trial of that offense for the limited purpose of rebutting the defendant’s entrapment defense. Moreover, proof of the earlier offenses was not required to sustain a conviction for the later offense and defendant’s acquittal of the later offense would not be inconsistent with a finding of guilt of the earlier offenses. As such, we do not believe that the State is collaterally estopped from prosecuting defendant for the earlier offenses.

For all the foregoing reasons, we affirm the order denying defendant’s motion to dismiss the two pending charges of delivering cocaine in May 1986.

Affirmed.

CERDA, P.J., and WHITE, J., concur.