text:
    TRI-STATE COACH LINES, INC., Plaintiff-Appellant, v. THE ILLINOIS COMMERCE COMMISSION et al., Defendants-Appellees.
    First District (2nd Division)
    No. 1—89—1233
    Opinion filed August 14, 1990.

      Olsen & Olsen, Ltd., of Springfield, and Sims, Walker & Steinfeld, P.C., of Washington, D.C., for appellant.
    Neil E Hartigan, Attorney General, of Springfield, and Paul J. Matón, of Chicago (Myra L. Karegianes, Special Assistant Attorney General, of Chicago, of counsel), for appellees.
   JUSTICE BILANDIC

delivered the opinion of the court:

This is an appeal from an administrative review action in which the circuit court affirmed an Hlinois Commerce Commission (H.C.C. or State authority) cease and desist order issued against plaintiff, Tri-State Coach Lines, Inc. (Tri-State). In the same judgment, the circuit court found Tri-State in criminal contempt of court and assessed a fine of $1,000. Plaintiff appeals the entire judgment of the circuit court.

C.W. Limousine Service, Inc. (C.W.), filed a .complaint against TriState before the Il.C.C., alleging that Tri-State was operating an intrastate bus passenger service between Midway and O’Hare airports without authorization from the Il.C.C., in violation of section 18c — 6103 of the Illinois Commercial Transportation Law (Ill. Rev. Stat. 1985, ch. 951/2, par. 18c—6103). Tri-State responded by filing a motion to dismiss C.W.’s complaint on the basis that its operation was authorized by the Interstate Commerce Commission (ICC or Federal authority) and that the State authority did not have subject matter jurisdiction over the action.

The hearing examiner denied Tri-State’s motion to dismiss and ordered Tri-State to answer the complaint and submit to discovery. TriState opted to stand by its motion to dismiss. After hearing arguments of counsel, the hearing officer issued her recommended decision ordering Tri-State to cease and desist from operating its bus passenger service between Midway and O’Hare airports.

On June 20, 1988, the Il.C.C. adopted the hearing officer’s recommended decision and issued its decision ordering Tri-State to cease and desist. Tri-State petitioned the State authority for reconsideration of its decision, attaching a letter from the Federal authority, dated June 21, 1988, which affirmed Tri-State’s right to tack (join routes at common intersecting points) its interstate authorities for the purpose of operating between O’Hare and Midway airports. Nevertheless, on August 17, 1988, the Il.C.C. denied Tri-State’s petition for reconsideration.

Thereafter, Tri-State filed a complaint for administrative review in the circuit court (Ill. Rev. Stat. 1987, ch. 110, par. 3—103) and sought a stay of the Il.C.C. order. The motion for stay was denied.

On October 12, 1988, the Il.C.C. filed an emergency petition for enforcement of its cease and desist order, attaching affidavits which established that Tri-State was operating the bus passenger service on October 6 and October 7, 1988. The court ordered Tri-State to show cause why it should not be held in contempt for continuing to operate in violation of the Il.C.C. order. The court heard arguments on both Tri-State’s complaint for administrative review of the Il.C.C. order and the Il.C.C.’s emergency enforcement petition.

Tri-State argued that it is authorized to operate the bus route between Midway and O’Hare airports because it holds three Federal certificates issued by the ICC. The three certificates authorize Tri-State to transport passengers in intrastate, interstate and foreign commerce over the following routes:

Docket No. MC — 129038 Sub 1 (Sub 1) authorizes Tri-State to transport passengers between O’Hare International Airport and the Indiana Dunes State Park in Chesterton, IN, with a portion of the route lying over Interstate Highway 294 (IH 294).
Docket No. MC — 129038 Sub 2 (Sub 2) authorizes Tri-State to transport passengers over various regular-routes in and near Chicago. Route 1 travels between Lansing, IL and O’Hare Airport, with travel over IH 294. Route 7 runs between Park Forest, IL and Midway Airport, with travel over IH 294.
Docket No. MC — 129038 Sub 4 (Sub 4) authorizes Tri-State to transport passengers between Midway Airport and Aurora, IL, with travel over IH 294.

It is significant to note that there is no restriction on tacking in any of the Federal certificates issued to Tri-State. Tacking is the act of joining interstate authorities at common intersecting points and operating between those points pursuant to the Federal certificates even though the routes may be intrastate.

On November 23, 1988, the trial court entered its judgment affirming the Il.C.C. cease and desist order, finding Tri-State in criminal contempt of court and assessed a fine of $1,000. It is from this judgment that Tri-State appeals.

I

The principal issue on appeal is whether the Il.C.C. had subject matter jurisdiction to order Tri-State to cease and desist from operating its Midway-O’Hare bus passenger service. Tri-State argues that it was authorized to operate the Midway-O’Hare bus passenger service by virtue of tacking its Subs 1, 2 and 4 ICC certificates at the common point of IH 294. Tri-State contends that the Federal authority that issued its certificates has primary jurisdiction over the interpretation of those certificates. Therefore, the Il.C.C. cease and desist order was issued without subject matter jurisdiction.

The I1.C.C. argues that it had jurisdiction to consider C.W.’s complaint and issue its order against Tri-State because the service at issue was conducted over an intrastate route within the State of fllinois, an area over which the H.C.C. has jurisdiction. The Il.C.C. concedes that Congress authorized the ICC to grant its carriers certain intrastate operating privileges in conjunction with their interstate routes (49 U.S.C. 10922(c)(2)(B) (1988)), but argues that Tri-State’s three Federal certificates do not contain a Midway-O’Hare route. Moreover, the H.C.C. contends that Tri-State may not tack its Federal certificates to establish the requisite authority to operate the route at issue because “[i]n Hlinois, an extension of authority may be applied for but authorities are not ‘tacked’.” (H.C.C. order.)

With the enactment of the Bus Regulatory Reform Act of 1982 (Bus Act), Congress authorized the ICC to grant certificates for intrastate routes that are operated as a part of the interstate operation. (49 U.S.C. §10922(c)(2)(B) (1988).) One of the purposes of Congress in the enactment of the Bus Act was to ease the amount of State regulatory interference with intrastate operations of interstate carriers. The Federal government, through the ICC, has preempted the local governments from regulating these intrastate routes. See, e.g., S. Rep. No. 97 — 411, 97th Cong., 2d Sess. 16, reprinted in 1982 U.S. Code Cong. & Admin. News 2323.

The Il.C.C. erroneously contends that Tri-State’s Subs 1, 2 and 4 certificates do not authorize the Midway-O’Hare intrastate service route. None of these certificates explicitly authorizes a route between Midway and O’Hare airports. However, the ICC allows its certificated carriers to tack their separate authorities at common intersecting points unless there are specific provisions against tacking noted on the certificate itself. (Monumental Motor Tours, Inc. v. Greyhound Corp., 79 M.C.C. 244, 247 (1959).) Tri-State’s Subs 1, 2 and 4 do not contain any tacking restrictions. An examination of these certificates reveals that Tri-State could tack these authorities at their common point of service, IH 294, and come up with the Midway-O’Hare service route. The fact the Il.C.C. does not permit its carriers to tack authorities is irrelevant in this context. At issue is the interpretation of Federal certificates, which do not have any restriction against tacking.

Congress has authorized the ICC to grant intrastate and interstate operating privileges to motor common carriers under certain conditions. The Federal authority is vested with primary jurisdiction to review and interpret the scope of operating authority granted by its certificates. “Thus the possibility of a multitude of interpretations of the same Federal certificate by several States will be avoided and a uniform administration of the [Bus] Act achieved.” Service Storage & Transfer Co. v. Virginia (1959), 359 U.S. 171, 179, 3 L. Ed. 2d 717, 722, 79 S. Ct. 714, 719.

Once Tri-State presented evidence of its Federal certificates which appear to authorize the Midway-O’Hare route, the Il.C.C. should have dismissed C.W.’s petition without prejudice and directed C.W. to pursue its remedy before the Federal authority which issued the certificates to Tri-State. The Federal authority has primary jurisdiction to interpret the scope of operating authority granted by its certificates. Interpretations of Federal operating certificates should be made in the first instance by the authority issuing the certificate and upon whom the Congress has placed the responsibility of action. Service Storage & Transfer Co. v. Virginia (1959), 359 U.S. 171, 177, 3 L. Ed. 2d 717, 721, 79 S. Ct. 714, 718; see also Funbus Systems, Inc. v. California Public Utilities Comm’n (9th Cir. 1986), 801 F.2d 1120, 1129; Holland Industries, Inc. v. Division of Transportation (Mo. 1989), 763 S.W.2d 666, 668.

The Il.C.C. contends, in the alternative, that Tri-State has waived its right to have the ICC interpret the scope of operating authority granted by its ICC certificates. After the circuit court entered its judgment affirming the Il.C.C. order, on June 1, 1989, Tri-State petitioned the Federal agency for a declaratory order determining the scope of its operating authority under its Subs 1, 2 and 4 certificates. In its order, the ICC asserted that it had primary jurisdiction to determine the scope of operating authority granted by its certificates and found that Tri-State was indeed authorized to operate the Midway-0’Hare route under its Federal certificates. The Il.C.C. argues that Tri-State brought this matter to the ICC only after it obtained unfavorable rulings in the Il.C.C., the circuit court and the district court (Tri-State’s petition for declaratory judgment dismissed on principles of comity and full faith and credit). However, the Il.C.C. fails to recognize that the ICC has primary jurisdiction over this subject matter. Jurisdiction to hear proceedings cannot be conferred by the election of the parties. (City of West Frankfort v. Industrial Comm’n (1950), 406 Ill. 452, 457, 94 N.E.2d 413.) Tri-State did not waive the ICC’s jurisdiction.

II

Tri-State contends that the trial court’s finding of indirect criminal contempt and assessment of a $1,000 fine was erroneous. To sustain a finding of indirect criminal contempt for the violation of a court order, two elements must be proved: (1) the existence of a valid court order; and (2) a wilful violation of that order. (People v. Totten (1987), 118 Ill. 2d 124, 138, 514 N.E.2d 959.) Tri-State maintains that there was no valid court order upon which such a finding could be based.

The trial court based its finding of criminal contempt upon TriState’s continued operations in violation of the H.C.C. cease and desist order and the trial court’s own order denying Tri-State’s application for stay.

Contempt will not lie for disobeying an order which is void for want of jurisdiction of the parties or subject matter or because the court has no power to decide the particular matter. (Armentrout v. Dondanville (1979), 67 Ill. App. 3d 1021, 1028, 385 N.E.2d 829, appeal denied (1979), 75 Ill. 2d 589.) Because we have found that the Il.C.C. had no jurisdiction to issue its order against Tri-State, that order is void. The trial court’s own order merely denied to stay the operation of this void order. Accordingly, the trial court erred in finding Tri-State in contempt of court and assessing a fine.

For the foregoing reasons, we reverse the judgment of the circuit court and remand for the limited purpose of directing the circuit court to order the Il.C.C. to vacate its cease and desist order and dismiss C.W.’s complaint without prejudice to C.W.’s option to pursue its remedy before the Federal authority.

Reversed and remanded with directions.

HARTMAN and SCARIANO, JJ., concur.


source: Caselaw Access Project

author: JUSTICE RIZZI

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. ROBERT BARRY, Defendant-Appellee.
    First District (3rd Division)
    No. 1—87—3428
    Opinion filed August 15, 1990.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, Linda Woloshin, and Nancy G. Kaplan, Assistant State’s Attorneys, of counsel), for the People.
    Michael J. Pelletier and Marc Davidson, both of State Appellate Defender’s Office, of Chicago, for appellee.
   JUSTICE RIZZI

delivered the opinion of the court:

Following a bench trial, defendant Robert Barry was found guilty of two counts of aggravated battery and sentenced to serve a 30-month probation conditioned upon periodic imprisonment. Following a hearing, the court granted defendant’s post-conviction motion. The State appeals from the order of the circuit court of Cook County which granted defendant’s post-conviction motion for a new trial based on ineffective assistance of counsel. We affirm.

At trial, the State presented the testimony of Patricia Breason, Caroline Ganshir and Kimber Friedrich. On the evening of August 3, 1986, at approximately 10:30 p.m., the three young women went to a party at a friend’s house. While they were waiting in line to get a beer, Patricia heard someone make a comment about all of the hairspray in Kimber’s hair. When Patricia turned around to see who the speaker was, she saw defendant standing with a group of his friends. The young women ignored the comment and walked away. Later, while Patricia, Kimber and Caroline were talking with a group of friends, someone from defendant’s group lunged into Caroline, causing her to spill her drink. Caroline turned around and asked aloud if she was being threatened, and someone from the group raised his hand at her and responded, “[Y]ou damn right, I am threatening you, you f — ing bitch.” Caroline asked her friend’s brother, who was hosting the party, to tell defendant and his friends to leave. Eventually, defendant and his friends left the party.

Patricia, Caroline and Kimber left the party 10 to 15 minutes after defendant departed. As the young women approached Kimber’s car, they heard somebody from defendant’s car yell, “[H]ey, you f — ing whore.” Patricia went up to the car which was parked just ahead of them to see who was calling her names, and she observed defendant in the front passenger seat. Patricia noticed a young woman in the driver’s seat and two young men in the back seat. Patricia went over to defendant, pointed her finger at him and asked him why he was calling her and her friends names. Patricia testified that defendant reached out of the car and slapped her twice. Patricia tried to hit defendant but missed. Defendant opened the car door, knocking Patricia to the ground. Patricia got up and walked toward Caroline and Kimber, who were standing by Kimber’s car. Patricia testified that defendant came up behind her, grabbed her from the back of the neck, turned her around, got on top of her and started punching her in the face.

Caroline tried to get defendant off of Patricia by striking him with her shoe, but was unsuccessful. Patricia got free, and Caroline attempted to get a can of hairspray from her purse, but defendant grabbed her hand and flung her purse across the street. Patricia crossed the street and held her face because she could not move her jaw. Kimber followed defendant to his car to try to prevent him from leaving, but defendant got into the car and started rolling up the window. Kimber put her hand in the window, and defendant rolled the window up on her thumb, cutting it. Defendant exited the car and began to punch Caroline with a closed fist. While defendant was punching Caroline, a van pulled up and two men got out, pulled defendant off of Caroline and started punching him. Defendant returned to his car and the driver drove away. Patricia was later treated in the hospital emergency room for a sprained ankle and broken jaw.

Defendant testified in his own behalf and stated that on the night of the party while he was sitting in a parked car with his friends, a girl walked up to him and started yelling, “[Wjhat’s your problemf?]” Defendant testified that nobody liad yelled at her before she approached the car and that she started slapping and punching him. He further testified that he blocked her with his hands and then pushed her away. Defendant stated that he opened the car door and that as he brought his head out of the doorway, he was sprayed with something. Defendant continued to get out of the car and was sprayed again. The substance entered his eyes, nose and mouth, burning his face, eyes, and skin. Defendant testified that he put his head down, covered his face and started swinging in the direction of the spray. Defendant made contact with something or someone, twisted and fell to the ground. Defendant then got up and swung and hit someone again. Defendant returned to the car and got inside, while still being sprayed with the substance. He rolled up the window and they drove away. Two of the persons in the car with defendant both testified that defendant was sprayed with a substance before he started striking the young women.

Defendant’s girlfriend, the driver of the car, testified that they all went to McDonald’s after the incident to help defendant wash the substance off of his face. She further testified that the yeast-like substance was all over the passenger car window. On May 19, 1987, the court found defendant guilty of two counts of aggravated battery.

On June 17, 1987, defendant’s trial counsel filed a motion to reopen defendant’s case in chief on the grounds of newly discovered evidence and a motion for a new trial. On July 1, 1987, the court denied the two post-trial motions and sentenced defendant to serve a 30-month probation conditioned upon periodic imprisonment. On July 22, 1987, defendant, by newly appointed counsel, filed a motion which was captioned, “Emergency Motion to Vacate Judgment of Convictions and to Take Additional Evidence or in the Alternative to Grant a New Trial Based Upon Ineffective Assistance of Counsel.” On August 7, 1987, the court conducted a hearing on defendant’s motion wherein it heard additional testimony from defendant, Donald DeBat, and defendant’s trial counsel. At the conclusion of the hearing, the court found that defendant’s trial counsel should have investigated and interviewed Mr. DeBat and two McDonald’s employees whose testimony was consistent with defendant’s theory of defense. Based on its findings concerning the availability of these witnesses and their credibility, the trial court concluded that the reliability of the outcome of the trial was undermined. The court entered an order vacating the judgment-of conviction and granting defendant a new trial. From this order the State appeals.

First we will address the defendant’s motion to dismiss the State’s appeal which was taken with the case. Defendant argues that the State’s appeal should be dismissed because it was taken from the court’s order which granted his post-trial motion for a new trial, which is not an appealable order. The State responds that its appeal is taken from the court’s order which granted defendant’s post-conviction petition. Because of the reasons which follow, we deny defendant’s motion to dismiss the State’s appeal.

Section 116 — 1 of the Code of Criminal Procedure of 1963 provides:

“Motion for a new trial, (a) Following a verdict or finding of guilty the court may grant the defendant a new trial.
(b) A written motion for a new trial shall be filed within 30 days following the entry of a finding or the return of a verdict. Reasonable notice of the motion shall be served upon the State.
(c) The motion for a new trial shall specify the grounds therefor.” Ill. Rev. Stat. 1987, ch. 38, par. 116—1.

The above-quoted statute relating to motions for a new trial provides that such motions “shall” be filed within 30 days following the entry of a verdict or finding of guilty. The time limitations are mandatory and not directory. (People v. Dzielski (1970), 130 Ill. App. 3d 581, 586, 264 N.E.2d 426, 429.) In the present case, defendant was found guilty of aggravated battery on May 19, 1987. Therefore, the “Emergency Motion” filed on July 22, 1987, cannot be construed as a timely motion for a new trial since it was filed more than 30 days after entry of the court’s finding of guilty. In addition, since it is clear from the record that the State objected to the timeliness of the motion and its treatment as a motion for a new trial, the motion cannot be considered timely under the revestment doctrine. See People v. Hubbard (1988), 170 Ill. App. 3d 572, 576, 524 N.E.2d 1263,1265-66.

The only logical construction which would preserve the court’s jurisdiction of the defendant’s case following sentencing is to treat the inappropriately captioned motion as a post-conviction petition. The treatment of defendant’s motion as a post-conviction petition is supported by the fact that it raised constitutional issues and was made after sentencing. (See Ill. Rev. Stat. 1987, ch. 38, par. 122—1.) We therefore conclude that the July 22, 1987, “Emergency Motion” was properly considered by the court to be a post-conviction petition. Because appeals from the final judgment of the circuit court in post-conviction proceedings are allowed as of right, defendant’s motion to dismiss the State’s appeal is denied. 107 Ill. 2d R. 651(a).

On appeal, the State argues that the trial court erred in sustaining defendant’s post-conviction motion based on ineffective assistance of counsel because defendant failed to demonstrate either that his trial counsel’s assistance was unreasonable or that he was prejudiced by the alleged deficiencies in his counsel’s performance. We disagree.

The constitutionally guaranteed assistance of counsel has not been provided if the defendant can prove that counsel’s representation fell below an objective standard of reasonableness and that counsel’s shortcomings were so serious as to deprive the defendant of a fair trial with a reliable result. (People v. Albanese (1984), 104 Ill. 2d 504, 525, 473 N.E.2d 1246, 1255.) The defendant must establish that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. (Albanese, 104 Ill. 2d at 525.) Failure to adequately prepare for trial, including failure to conduct an investigation and interview witnesses, has been held to constitute inadequate representation by counsel. (People v. Witherspoon (1973), 55 Ill. 2d 18, 21, 302 N.E.2d 3, 4.) The failure to interview witnesses may indicate actual incompetence, particularly when the witnesses are known to trial counsel and their testimony may be exonerating. People v. Greer (1980), 79 Ill. 2d 103, 123, 402 N.E.2d 203, 212.

In the present case, at the post-conviction hearing, defendant’s trial counsel testified that defendant told him that Mr. DeBat observed him on the evening of the incident and saw red marks on his skin as well as a substance on the car window. However, defendant’s trial counsel did not interview Mr. DeBat before trial. Trial counsel testified that he attempted to telephone DeBat at his office, but was unable to contact him. Defendant’s trial counsel did not contact Mr. DeBat at home or subpoena him for trial. At the hearing on defendant’s motion for a new trial, DeBat testified that when defendant entered his home on the evening of the incident, his face, neck and upper body were red.

Defendant’s trial counsel also testified that he was informed by defendant prior to trial that he and his friends went to a McDonald’s restaurant following the incident to wash a substance from his face and eyes. Defendant also informed his trial attorney that they encountered two McDonald’s employees, one of whom was an off-duty police officer who gave defendant a cloth for his eyes. However, defendant’s attorney did not attempt to ascertain the names of the McDonald’s employees or interview them prior to trial. Following trial, defendant’s trial counsel sent an investigator to McDonald’s who was able to locate and interview two witnesses whose testimony would corroborate defendant’s theory of defense.

At the conclusion of the hearing, the trial court found that the testimony of DeBat and the McDonald’s employees was consistent with defendant’s theory of defense. The court further found that the witnesses were readily available and should have been interviewed. The court concluded that the failure to interview the witnesses was not a trial strategy. Based on these findings, the trial court concluded that the reliability of the outcome of the trial was undermined.

We concur in the trial court’s findings. It is clear from the record that central to the court’s determination of defendant’s guilt was that it found “nothing which raises any doubt *** that there was no mace used by any of the three girls.” Because the issue of whether or not defendant was maced either before or after he struck the victims was central to the court’s determination, his trial counsel’s failure to interview and present at trial witnesses whose testimony would corroborate his theory of defense resulted in a failure on counsel’s part to meet the objective standard of reasonable competence. In particular, we find that the disinterested testimony of the McDonald’s employees would have assisted the court in making a determination as to both the victims’ and defendant’s credibility. We therefore conclude that, but for trial counsel’s failure, the outcome of the proceeding may have been different.

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

Affirmed.

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


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. HERBERT GANT, Defendant-Appellant.
    First District (3rd Division)
    Nos. 1—87—2530, 1—87—2546 cons.
    Opinion filed August 15, 1990.

      Randolph N. Stone, Public Defender, of Chicago (Bruce C. Landrum, Assistant Public Defender, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, Gael O’Brien, and Adam D. Grosch, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE RIZZI

delivered the opinion of the court:

After a jury trial, defendant-appellant Herbert Gant (Gant) was found guilty of two counts of murder, two counts of attempted murder and home invasion. The trial court sentenced Gant to a natural life term of imprisonment for the murders of Edis and Eva Knox, to a 30-year term of imprisonment for home invasion and to a 15-year term of imprisonment for the attempted murders of Vernell Crawford and Dwayne Knox, with all of the sentences to be served concurrently.

On appeal, Gant argues that (1) his conviction for the murder of Eva Knox should be reversed where the State failed to prove beyond a reasonable doubt that his acts caused Eva Knox’s death; (2) improper comments by the prosecutor during closing argument and rebuttal deprived him of his constitutional right to a fair trial; (3) imposition of a natural life sentence without any consideration of factors in mitigation violates the eighth and fourteenth amendments to the United States Constitution; and (4) he was improperly sentenced under the mandatory life statute.

The State presented the testimony of Vernell Crawford, Carolyn Knox, Chicago police officers Andrew Jones, Walter Berratta, Garrett Dubin, Thaddeus Melko, Joseph Bonadonna, Henry Freeman and Richard Fournier. The State also presented the testimony of Doctor Yuksel Konacki, a forensic pathologist, and Doctor Hari Rao, Eva Knox’s treating physician. Gant did not present any evidence on his behalf.

The evidence presented at trial revealed that Gant and Edis Knox married in 1978 and divorced in 1983. On July 30, 1985, Eva Knox, 78 years of age, resided at 908 West 71st Street with her daughters, Carolyn Knox and Edis Knox, and her grandchildren, Vernell Crawford, Loquita, DeShawn and Dwayne Knox. Vernell Crawford and Carolyn Knox recounted the events of July 30, 1985.

At approximately 10:15 p.m., Gant telephoned the Knox residence and demanded to speak with Edis Knox. Carolyn Knox informed Gant that Edis did not wish to speak with him. Thereafter, at approximately 10:30 p.m., Gant, armed with a 12-gauge shotgun, a .38 caliber revolver and a .25 caliber revolver, fired the shotgun into the back door of the Knox residence. Gant then went to the front of the house, broke a window and entered the house through the window. Gant proceeded to the bedroom where Carolyn Knox, her children, Eva Knox and Vernell Crawford attempted to hide.

As Carolyn Knox was under the bed, her children crawled under the bed and Vernell Crawford was on the floor near the entrance, Gant entered the bedroom, stating, “I got all you bitches, tonight.” Gant removed a pistol from his belt and shot Vernell Crawford.

Edis Knox came out of hiding and asked Gant, “Herbert what are you doing, why are you bothering them, they are not bothering you.” Gant responded, “You [sic] the one that started all this shit. You [sic] the one that I came for.” As Edis ran to the back of the house, pleading for her life, Gant shot her seven times. After shooting Edis, Gant returned to the bedroom and examined Vernell Crawford as she pretended to be- dead. Gant then fired the pistol behind the bed, striking six-year-old Dwayne Knox.

While Gant chased and shot Edis, her mother, Eva went out the front door of the house. Gant apprehended 78-year-old Eva, and as she prayed and pled for her life, he shot her at least four times. After shooting Eva, Gant reentered the house, stating, “All right Carol, it is your turn now, [sic] it is your turn.” Gant attempted to open the bedroom closet door and said, “I know you are in there, I am going to find you.” Thereafter, Gant heard police sirens and fled.

The police discovered Eva Knox, bleeding but still alive, lying on the threshold of the front door. Inside the home in the bedroom, the police found Vernell Crawford and Dwayne Knox suffering from gunshot wounds. On the enclosed back porch, Edis’ body displayed no signs of life. A July 31, 1985, autopsy performed on Edis revealed that she died as a result of multiple gunshot wounds. Two .38 caliber bullets were recovered from her body. The police determined that the bullets were fired from Gant’s .38 caliber revolver. Vernell Crawford and Dwayne Knox recovered from their injuries.

Eva Knox’s treatment for multiple gunshot wounds included surgery, during which two bullets were recovered. Her left leg was placed in a full leg cast due to a broken tibia. Eva’s tibia was broken by the gunshot. On August 20, 1985, the hospital discharged Eva Knox, and she continued her recuperation at home.

At the time of her discharge, Eva took Diazide and Aldomet for hypertension. Prior to being shot, Eva was in good health, suffering only from high blood pressure. Upon her return home, on August 20, 1985, Eva Knox was sick, unable to eat or walk. Ultimately, on September 7, 1985, Eva was transported by paramedics to the emergency room at Englewood Hospital and died.

On September 8, 1985, Doctor Yuksel Konaki, a forensic pathologist and an assistant Cook County medical examiner, performed an autopsy on Eva Knox. Dr. Konaki opined within a reasonable degree of scientific certainty that Eva Knox died as a result of pulmonary embolism due to thrombophlebitis as a consequence of multiple gunshot wounds. Specifically, Eva Knox’s immobility caused blood to stagnate in the deep veins of her legs. The stagnant blood formed blood clots in the deep veins of her legs. The blood clots dislodged, traveled to her lungs, lodged in the primary blood vessels or pulmonary arteries and caused her death. On cross-examination, Doctor Konaki testified that Eva’s heart was normal in size and the blood vessels of the heart were open; there was no arteriosclerosis. Doctor Konaki recovered two .25 caliber bullets during the autopsy.

As previously stated, the jury found Gant guilty of two counts of murder, two counts of attempted murder and home invasion. The court sentenced Gant to natural life for the murder convictions, 30 years for home invasion and 15 years for each attempted murder conviction, with all sentences to be served concurrently.

Gant’s first argument on appeal is that his conviction for the murder of Eva Knox should be reversed where the State failed to prove beyond a reasonable doubt that his acts caused Eva Knox’s death. We disagree.

The criminal acts of a defendant need not be the sole and immediate cause of death. (People v. Brackett (1987), 117 Ill. 2d 170, 176, 510 N.E.2d 877, 880.) When the criminal acts of the defendant have contributed to a victim’s death, the defendant may be found guilty of murder. (Brackett, 117 Ill. 2d at 176.) Causation is a question of fact for the trier of fact. (People v. Wilks (1988), 175 Ill. App. 3d 68, 74-75, 529 N.E.2d 690, 694.) A reviewing court will not disturb that determination unless the evidence is so unreasonable, improbable, and unsatisfactory as to leave a reasonable doubt as to defendant’s guilt. (Wilks, 175 Ill. App. 3d at 75.) A reasonable doubt does not exist merely because other factors may have contributed to the victim’s death or because a person without the victim’s medical history might not have died from the trauma. Wilks, 175 Ill. App. 3d at 74.

In reviewing defendant’s conviction, when determining whether he has been proven guilty beyond a reasonable doubt, the standard is whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. People v. Young (1989), 128 Ill. 2d 1, 49, 538 N.E.2d 461, 472.

The State established beyond a reasonable doubt that Gant shot Eva Knox at least four times. The evidence demonstrates that as a result of the shooting she suffered gunshot wounds to the right cheek, right neck, right thumb, left forearm and left leg. In addition, she suffered from a fractured jaw, a fractured rib, a fractured left forearm and a fractured left tibia. Doctor Konaki testified that the cause of death was pulmonary embolism due to thrombophlebitis as a consequence of multiple gunshot wounds. The gunshot wounds, surgeries, immobilization and death were the direct consequences of Gant’s acts. Accordingly, we find that the State proved beyond a reasonable doubt that Gant’s acts caused Eva’s death, notwithstanding her high blood pressure and use of prescription medication for the treatment thereof.

Stated differently, Gant’s act contributed to her death. (People v. Wilks (1988), 175 Ill. App. 3d 68, 74-75, 529 N.E.2d 690, 694; People v. Clark (1984), 129 Ill. App. 3d 374, 378, 472 N.E.2d 814, 817-18.) In addition, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

Gant next argues that improper comments by the prosecutor during closing argument and rebuttal deprived him of his constitutional right to a fair trial. Specifically, Gant asserts that in closing argument and during rebuttal, the prosecutor improperly commented on his failure to testify or to present any evidence and improperly inflamed and aroused the passions of the jury. The State responds that the defendant has waived these issues by his failure to object at trial and by failing to raise these issues in the motion for a new trial.

The failure to raise these issues at trial and in the post-trial motion constitutes a waiver of the issues on appeal. (People v. Young (1989), 128 Ill. 2d 1, 46, 538 N.E.2d 461, 471.) Had the issues not been waived, this court would not find that the comments deprived Gant of his constitutional right to a fair trial.

In closing argument, a prosecutor is accorded wide latitude and the scope of permissible argument is within the sound discretion of the trial judge. (People v. Lasley (1987), 158 Ill. App. 3d 614, 625, 511 N.E.2d 661, 670.) Complained-of remarks must be examined in the context of both the State’s and the defense’s arguments; but all remarks made in the closing argument must be based upon the evidence presented or reasonable inferences thereof. People v. Cisewski (1987), 118 Ill. 2d 163, 175-76, 514 N.E.2d 970, 976; Lasley, 158 Ill. App. 3d at 625.

It is improper for the State to comment on the failure of the defendant to call a witness or to present evidence. (People v. Wills (1986), 151 Ill. App. 3d 418, 421, 502 N.E.2d 775, 777-78.) Having reviewed the prosecutor’s comments in context, we do not agree with the defendant that the prosecutor was reminding the jury that the defendant presented no evidence to rebut the testimony of Dr. Konaki. The prosecutor’s comments in context were as follows:

“Now, the defendant, the defense attorney is going to stand up here and say I don’t know why she died. It could have been those pills she was taking or wasn’t taking. Well, we know why she died. She died because this man blasted her six times with a handgun, that is why she died.
Now, she didn’t die on the spot, she didn’t die in the hospital, she died as she was being treated as an out patient, that is why she died.
Now, Dr. Konaki is the only person that testified that looked at that body. He took slides of the blood clots, he looked at some strains that were clotted, the arteries which were clotted. And after examining all that he was of the mind that the death of Eva Knox was due to gunshot wounds. And there is going to be no testimony to rebut or contradict that. The only expert in pathology who has testified has been Dr. Konaki who said her death is a direct result of gunshot wounds.”

In context, the comments do not constitute error. It is permissible to comment on the uncontradieted nature of the evidence for the purpose of demonstrating the absence of any evidentiary basis for defense counsel’s argument. (People v. Dixon (1982), 91 Ill. 2d 346, 350, 438 N.E.2d 180, 183.) Doctor Konaki was the only expert in pathology to testify. Moreover, even if improper remarks are made by the prosecutor, these remarks will be considered harmless error if there is overwhelming evidence of guilt, and a new trial will not be granted unless those remarks are so prejudicial that they materially contributed to defendant’s conviction. People v. Lloyd (1981), 93 Ill. App. 3d 1018,1025, 418 N.E.2d 131,136.

Defense counsel stated, in part, during closing:

“Most certainly the death to Eva Knox, the older woman did not occur that night, did not occur in the hospital, it occurred at home, in September. She was discharged from that hospital, she was placed on a medication that had only to do "with her hypertension. She wasn’t given medication or treatment for wounds, she was told to call the hospital or you can come back in a month and we will look you over. It is apparent that they would have never let that woman out of the hospital if she was in danger of dying.
Now, we had two doctors here to testify regarding the cause of death. And it is a crucial opinion because if she died as a result of the gunshot wounds then it is a murder charge. If she didn’t die as a result of the gunshot wounds it is an attempt murder. And this is not to just pick at little things, it is as important for you as jurors to not be stampeded by the grossness, by the sheer horror of that night into saying well, if he killed this person he wounded this person why should we worry about it, let’s give him this murder too.
* * *
The doctors saying probably caused her death, might have caused her death, I think it caused her death is not the same as a doctor saying this caused her death.
There was one real difference in the testimony of the two doctors. And I am sure that the doctor, I think you would be sure too, that any doctor going through a medical school has a course in pathology.
* * *
And the first doctor who testified said that he found some fibers that indicated clotting and he looked at them under a microscope. But the second. doctor told you that not only should there be fibers there should be these blood platelets, clumps of cells. The first doctor never told you that he saw these things.
The second doctor also told you that a person who has hypertension must take certain medication. And if they take too much of it, it can cause blood clots to form.
So, the issue now becomes did she die from blood clots or did she because she has hypertension simply have a heart attack, which both doctors concede is quite possible, we are talking about a lady 78 years old.”

In rebuttal, the prosecutor stated:

“This is what caused her death, these two bullets here and the two that are in here, that is what caused her death.
The only evidence you have heard about her cause of death and what killed her was from Dr. Konaki. Dr. Konaki is an expert, he’s been with the medical examiner’s office for 14 years. He said she died as a result of a blood clot that formed in her leg and traveled through her heart and lodged in the pulmonary artery, and that is w;hat killed her. The person that caused the blood clot is the defendant because as the doctor said when you immobilize somebody you cause a great likelihood of a blood clot forming. She lived for 78 years without a blood clot killing her, she died within about five weeks of him putting four bullets into her. He immobilized her, he is the one that did that, that is why she couldn’t move. *** He caused her to be immobilized and caused her death.”

We find that these remarks in response to defense counsel’s arguments constitute permissible comments on the evidence presented. It is permissible for the prosecutor to present his theory of the case to the jury so long as the theory is based upon the evidence and reasonable inferences therefrom. People v. Cisewski (1987), 118 Ill. 2d 163, 175-76, 514 N.E.2d 970, 976; People v. Yates (1983), 98 Ill. 2d 502, 532, 456 N.E.2d 1369, 1384.

Gant also argues that additional comments during rebuttal were inflammatory, inaccurate, and designed to mislead the jury and arouse their fears and passions. The comments were as follows:

“It is just like, ladies and gentlemen, if someone goes out and plants a bomb. And he puts a trip wire on it so when someone comes by and trips the wire, the bomb goes off and then some other poor innocent soul coming walking down the street and he trips the wire and the bomb goes off and kills two people. It is not the fault of the man who tripped the wire, it is the guy who planted the bomb, he is the killer. And in this case the bombs were planted, he planted four bombs into her body and caused her to be immobilized and caused her death. And the only medical expert you heard from that examined the body told you that the cause of death was the blood clot as a result of multiple gunshot wounds.”

On review, the trial court’s determination of the propriety of the argument will be followed absent a clear abuse of discretion. (People v. Lasley (1987), 158 Ill. App. 3d 614, 625, 511 N.E.2d 661, 670.) If improper remarks are made by the prosecutor, these remarks will be considered harmless error if there is overwhelming evidence of guilt, and a new trial will not be granted unless those remarks are so prejudicial that they materially contributed to defendant’s conviction. (People v. Lloyd (1981), 93 Ill. App. 3d 1018, 1025, 418 N.E.2d 131, 136.) Improper argument justifies reversal only when the statements result in substantial prejudice or serve no purpose other than to inflame the jury. People v. Terry (1984), 99 Ill. 2d 508, 517, 460 N.E.2d 746, 750.

Had there been no waiver of this issue we would hold that while the bomb analogy was inflammatory, the jury heard overwhelming evidence of his guilt, and the comments were not so prejudicial so as to have materially contributed to Gant’s conviction.

Gant also argues on appeal that his sentence imposed under section 5—8—1(a)(1)(c) of the Unified Code of Corrections (Ill. Rev. Stat. 1985, ch. 38, par. 1005—8—1)(a)(1)(c)) violated the eighth and fourteenth amendments to the United States Constitution because the statute mandates a natural life sentence and precludes consideration of factors in mitigation. The Illinois Supreme Court has implicitly rejected that contention. (People v. Taylor (1984), 102 Ill. 2d 201, 206, 464 N.E.2d 1059, 1062; People ex rel. Daley v. Strayhorn (1988), 119 Ill. 2d 331, 336, 518 N.E.2d 1047, 1050.) Also, this court has rejected that claim. (People v. Rodriguez (1985), 134 Ill. App. 3d 582, 592-93, 480 N.E.2d 1147, 1153-54.) Accordingly, we reject the argument.

Finally, Gant argues that he was improperly sentenced under the mandatory natural life statute. Specifically, he argues that he should have been sentenced under section 5—8—1(a)(1)(b) (Ill. Rev. Stat. 1985, ch. 38, par. 1005—8—1(a)(1)(b)), which allows the court discretion in imposing a natural life sentence, instead of sentencing defendant under section 5—8—1(a)(1)(c) (Ill. Rev. Stat. 1985, ch. 38, par. 1005—8—1(a)(1)(c)), which requires, at a minimum, mandatory life imprisonment.

Gant asserts that this statutory scheme violates the due process and equal protection clauses of the Illinois and United States Constitutions, as well as article I, section 11, of the Illinois Constitution, which provides that all penalties shall be determined both ac-

cording to the seriousness of the offense and with the object of restoring the offender to useful citizenship. The Illinois Supreme Court has rejected the claim that this provision violates article I, section 11. People v. Taylor (1984), 102 Ill. 2d 201, 206, 464 N.E.2d 1059,1062.

Sections 5 — 8—1(a)(1)(b) and (a)(1)(c) provide:

“A sentence of imprisonment for a felony shall be a determinate sentence set by the court under this Section, according to the following limitations:
(1) for murder, *** (b) if the court finds that the murder was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty or that any of the aggravating factors listed in subsection (b) of Section 9 — 1 of the Criminal Code of 1961 are present, the court may sentence the defendant to a term of natural life imprisonment, or (c) if the defendant has previously been convicted of murder under any state or federal law or is found guilty of murdering more than one victim, the court shall sentence the defendant to a term of natural life imprisonment.” Ill. Rev. Stat. 1985, ch. 38, pars. 1005—8—1(a)(1)(b), (a)(1)(c).

One of the aggravating factors in the death penalty statute is that the defendant has been convicted of murdering two or more individuals under subsection (a) of the section or under any law of the United States or of any State which is substantially similar to subsection (a) of this section regardless of whether the death occurred as the result of the same act or of several related or unrelated acts so long as the deaths were the result of either an intent to kill more than one person or separate premeditated acts. Ill. Rev. Stat. 1985, ch. 38, par. 9—1(b)(3).

Section 5—8—1(a)(1)(c) mandates the imposition of a natural life sentence for the murder of two or more persons. (People ex rel. Daley v. Strayhorn (1988), 119 Ill. 2d 331, 336, 518 N.E.2d 1047, 1050.) Even when in apparent conflict, statutes, insofar as is reasonably possible, must be construed in harmony with one another. (People v. Maya (1985), 105 Ill. 2d 281, 287, 473 N.E.2d 1287, 1290.) Where two statutes conflict, the more recent will abrogate the earlier to the extent that they are inconsistent. Johnson v. State Electoral Board (1972), 53 Ill. 2d 256, 259, 290 N.E.2d 886, 888.

Whereas section 5—8—1(a)(1)(b), a general provision as to when a defendant may be sentenced to life imprisonment, was amended July 1974, section 5—8—1(a)(1)(c), effective July 1980, specifically requires a natural life sentence when a defendant has been convicted of two or more murders. A statute must be interpreted so as to achieve a logical result. (Budka v. Board of Public Safety Commissioners (1983), 120 Ill. App. 3d 348, 352-53, 458 N.E.2d 126, 130.) We therefore conclude that Gant was properly sentenced to a natural life sentence pursuant to section 5 —8—1(a)(1)(c) of the Unified Code of Corrections (Ill. Rev. Stat. 1985, ch. 38, par. 1005—8—1(a)(1)(c)).

Accordingly, we affirm the convictions and sentences.

Affirmed.

WHITE and FREEMAN, JJ., concur.


text:
    LEONARD WASSERMAN, Indiv. and on Behalf of the Shareholders of Autohaus on Edens, Inc., Plaintiff-Appellant, v. AUTOHAUS ON EDENS, INC., et al., Defendants-Appellees.
    First District (3rd Division)
    Nos. 1—88—1471, 1—88—1504 cons.
    Opinion filed August 15, 1990.

      Laser, Schostok, Kolman & Frank, of Chicago (Milton J. Kolman, Bruce M. Friedman, and Melbourne A. Noel, Jr., of counsel), for appellant.
    Sidney Z. Karasik, of Chicago (Mary Ellen Dienes, of counsel), for appellees.
   JUSTICE RIZZI

delivered the opinion of the court:

Leonard Wasserman (Wasserman), plaintiff-appellant, is appealing orders finding that (1) he did not become and is not a stockholder of Autohaus On Edens, Inc. (Autohaus), and (2) awarding him $36,043.84, the return of his investment plus statutory interest. On appeal, Wasserman argues that (1) the trial court’s finding that he is not a shareholder is contrary to the manifest weight of the evidence and (2) the trial court erroneously shifted to him the burden of proving the absence of a condition precedent to the Autohaus shareholder agreement. Alternatively, Wasserman argues that the judgment cannot stand because Autohaus, Joseph Rosengarden and Ralph Rosengarden (defendants), are precluded by the doctrines of waiver and estoppel from asserting the purported unsatisfied condition precedent as a bar to his stock ownérship.

Wasserman’s second amended complaint sought a permanent injunction, damages, reinstatement of employment, dissolution and other relief, based upon a breach of an oral shareholder agreement. The parties and the court stipulated to a bifurcated trial, beginning with the threshold question of whether Wasserman was a shareholder of Autohaus.

In 1971, Wasserman was general sales manager of Hudek Oldsmobile. Joseph Rosengarden (Joseph) and Ralph Rosengarden (Ralph) owned and operated Leslie Oldsmobile in Glen Ellyn, Illinois. Wasserman testified that Joseph asked him if he would like to be a partner in the acquisition of a Pontiac dealership in Highland Park. According to Wasserman, Joseph proposed that Wasserman would invest $20,000 and receive a 20% stock interest and serve as the general manager. All salaries, bonuses and other benefits derived from the operation of the business would be equally divided among Wasserman, Joseph and Ralph. They each would be members of the board of directors. After the efforts to acquire the Pontiac dealership failed, the parties' agreed to undertake the purchase of Autohaus, an import car business.

Wasserman testified that Joseph proposed that Wasserman participate in the acquisition of the Autohaus dealership on the same terms that had been discussed with the other dealership, that is (1) Wasserman would receive a 20% stock interest in return for a $20,000 investment; (2) Wasserman, Joseph and Ralph would each receive one-third of all profits and benefits of the business; and (3) Wasserman would be on the board of directors of the corporation and serve as general manager.

During late 1971 and January 1972, negotiations between the Rosengardens and Oliver Schmidt, the owner of Autohaus, occurred. In January 1972, in anticipation of the acquisition of Autohaus, but prior to the execution of a purchase contract, the Rosengardens began operating and managing Autohaus. The written agreement for the acquisition of Autohaus was executed on January 31, 1972. Autohaus was capitalized at $76,000, with 760 shares of stock at $100 par value issued and outstanding. Joseph and Ralph purchased the 760 shares.

Wasserman gave notice to Hudek Oldsmobile that he would be terminating his employment as of March 1, 1972, and immediately assumed responsibility for the day-to-day operation of Autohaus. Wasserman worked for approximately three weeks without receiving salary or compensation pending consummation of the acquisition.

Wasserman testified that as of March 1972, there was no discussion with Joseph of restrictions on his shares of stock. In April 1972, after the acquisition of Autohaus, Joseph and Wasserman discussed a shareholders’ agreement and Wasserman stated that he would not agree to a repurchase of his shares at a price equal to his original investment. According to Wasserman, the meeting concluded without Wasserman and Joseph in agreement as to the terms of a “buy-sell” agreement because he did not bargain for the guaranteed repayment of his $20,000 investment. Joseph testified, however, that in return for a guaranteed return of Wasserman’s $20,000 his shares were to be restricted stock. According to the defendants, the $20,000 initially was a form of security or earnest money for the faithful performance of Wasserman’s duties and subsequently became a loan to the corporation. The loan was converted to the purchase price of a restricted, nonappreciating 20% sharehold interest in Autohaus.

On May 1, 1972, Joseph requested that Wasserman tender the purchase price for his 20% stock interest in Autohaus. According to Wasserman on May 2, 1972, he delivered to Joseph a personal check for $20,000 payable to Autohaus and Joseph accepted the check without voicing objections or conditions. The legend on the check stated that it was for the purchase price for 20% of Autohaus’ shares of stock. The check was immediately deposited into an Autohaus bank account.

On or about May 9, 1972, Autohaus’ attorney tendered to Wasserman a proposed agreement (May agreement) setting forth terms and conditions on Wasserman’s 20% stock interest. The agreement was prepared based upon information provided by Joseph, and Autohaus’ attorney did not consult with Wasserman prior to drafting the agreement. The May agreement provided that (1) Wasserman would purchase a 20% stock interest (190 shares) in Autohaus at the cost of $20,000; (2) Wasserman would be a member of the board of directors and vice-president of Autohaus; (3) all compensation withdrawn from the business would be equally distributed (one-third each) to Wasserman, Joseph and Ralph; and (4) upon the sale of Wasserman’s stock, his death or termination of employment Wasserman’s shares would be acquired by Autohaus for $20,000. According to Wasserman, because the May agreement’s “buy-sell” provisions were not included in the parties’ prior oral agreement, he informed the attorney that he would not sign the agreement. Defendants acknowledge in their brief Wasserman’s deposition testimony wherein he stated that he wanted a provision in the agreement that “if I ever left the company I would receive my fair share of the corporate value.”

On May 9, 1972, Autohaus’ attorney prepared and Joseph executed Autohaus stock certificate No. 8 evidencing the issuance of 190 shares of Autohaus common stock to Wasserman. According to Wasserman, at the time of execution, the stock certificate did not contain a restrictive legend. On May 15, 1972, after Wasserman refused to sign the agreement, Joseph executed and counsel for Autohaus filed with the Illinois Secretary of State a report of issuance of shares indicating receipt of $20,000 from Wasserman, an increase in Autohaus’ capital and paid-in surplus from $76,000 to $96,000 and the issuance of 190 shares of Autohaus common stock.

In November 1972, Autohaus’ attorney drafted and tendered to Wasserman a second agreement, which stated that an agreement was made and entered into as of May 1, 1972. This November 1972 agreement did not provide for Wasserman’s election to the board of directors, for his vice-presidency or for his right to receive one-third of all distributions of compensation. The formula for determining the purchase price for Wasserman’s shares was modified from the fixed price of $20,000 to a price calculated upon the book value of the corporation. In addition, the agreement granted Autohaus the “option” to purchase Wasserman’s shares if he desired to sell or in the event of his death or termination. According to Wasserman, he again refused to sign the agreement because it was not in accordance with the oral agreement reached prior to March 1, 1972. According to Autohaus’ counsel, Joseph had informed him that the differences had been resolved and that Wasserman would receive the “security” he sought given the 20% book value redemption provision.

Nothing further occurred with respect to the agreement until November 1976. During this period, the Autohaus business prospered, Wasserman managed the day-to-day business affairs of Autohaus as general manager and received an equal distribution of salary and bonuses with the Rosengardens. The notes payable by Autohaus to Schmidt and Northbrook Enterprises were paid out of the income and cash flow of Autohaus thereby decreasing cash availability for distributions of salary or other forms of compensation to Wasserman and the Rosengardens. In November 1976, Wasserman questioned Joseph about year-end bonuses and Joseph proposed that Wasserman sell his Autohaus stock to the corporation at a price equal to its original cost plus accrued interest for five years. Wasserman rejected this offer and a year-end bonus was paid.

Shortly thereafter, in November 1976, Autohaus’ attorney tendered another agreement to Wasserman (the November 1976 agreement). This agreement was identical to the November 1972 agreement and Wasserman refused to sign it. Joseph testified that he directed counsel to “send the agreement again after giving some thought with Ralph that that was the deal that was going to be [sic\. There was no more anteing up. There was no more changing agreements.”

In late 1976, the relationship between Wasserman and Joseph began to deteriorate, and in early March 1977, Joseph became angry when Wasserman unilaterally extended his vacation an additional three days. Wasserman did not like Joseph’s reaction and informed Joseph that if he did not want his presence, Joseph could purchase his stock and he would leave. Thereafter, Joseph announced during a staff meeting that Wasserman would be leaving the company and offered to purchase his shares for $40,000. Wasserman felt the offer was inadequate and rejected it. Joseph removed Wasserman from the Autohaus payroll, from all corporate checking accounts and eventually physically excluded him from the premises by changing the locks, such that as of March 1977, Wasserman no longer functioned as general manager and vice-president.

According to Wasserman, between May 1972 and March 1977, neither of the Rosengardens notified him that he was not a shareholder of Autohaus or that he had failed to satisfy any conditions with respect to his purchase of the shares. His investment in the 20% stock interest was not returned. Beginning in March 1977, the Rosengardens operated Autohaus as their solely owned business to the total exclusion of Wasserman.

Defendants stated as an affirmative defense that Wasserman never became a shareholder of Autohaus because he failed to accept previously agreed conditions and restrictions on the stock ownership. The trial court found that the limitation on Wasserman’s ownership constituted a condition precedent of the shareholders agreement. The court stated the following:

“To prevail, plaintiff has to prove that he was entitled to an absolute 20% ownership in the corporation when, from the beginning, in every recorded negotiation between the parties, a condition precedent of a shareholders agreement has been suggested and insisted upon. There has been no showing by the plaintiff that this condition was not imposed upon him in every instance in which counsel for the Defendants dealt with him regarding his contemplated stock purchase.”

Wasserman argues that this statement demonstrates that the trial court improperly imposed upon him the burden of proving the absence of the condition precedent. We interpret the court’s ruling to be that Wasserman did not disprove defendants’ evidence that the condition precedent was imposed upon Wasserman in every instance that counsel for defendants met with him. Or stated differently, defendants proved the condition precedent. While we agree with the trial court’s findings of fact that defendants’ counsel presented the alleged condition precedent to Wasserman in various proposed agreements, we disagree with the court’s conclusion that a condition precedent existed.

Under Illinois law, one who asserts an affirmative defense has the burden of proving it. (Capitol Plumbing & Heating Supply, Inc. v. Van’s Plumbing & Heating (1978), 58 Ill. App. 3d 173, 175, 373 N.E.2d 1089, 1091.) A condition precedent is a condition which must be performed before there is a formation of a contract binding on the parties. (Wysocki v. Bedrosian (1984), 124 Ill. App. 3d 158, 163, 463 N.E.2d 1339, 1344.) Where a party claims that his own language creates a condition precedent to his performance, it must be established clearly that the parties intended to create a condition at the time of contracting. South Division Credit Union v. Deluxe Motors, Inc. (1976), 42 Ill. App. 3d 219, 222, 355 N.E.2d 715, 718-19; F.E. Holmes & Son Construction Co. v. Gualdoni Electric Service, Inc. (1982), 105 Ill. App. 3d 1135, 1139, 435 N.E.2d 724, 726.

We find as a matter of law that the evidence does not clearly establish that the parties intended to create a condition precedent at the time of contracting. Rather, the evidence indicates that Wasserman’s shareholder status was contingent upon the payment of $20,000, such that upon defendants’ acceptance of the $20,000, the defendants had the duty to accord Wasserman his rights and privileges as a shareholder.

“A condition precedent is an act or event, other than a lapse of time, which must exist or occur before a duty of immediate performance of a promise arises.” (J. Calamari & J. Perillo, The Law of Contracts ch. 11, §11—3, at 384 (2d ed. 1977).) If the sale of the stock was subject to a condition precedent that a written agreement be executed restricting the shares’ transferability, the agreement should have been prepared and signed before payment was unconditionally accepted. Wasserman and the Rosengardens testified that Wasserman’s status as a stockholder was to be the subject of a written agreement. Wasserman did not, however, characterize the written agreement as a condition precedent. Wasserman stated that when he arrived at Autohaus on March 1, 1972, there was a full and complete understanding between the parties as to the terms of the oral shareholder’s agreement.

Defendants contend that the initial agreement reached in early 1972 was an employment contract wherein Wasserman would work for Autohaus as its general manager and share equally with Joseph and Ralph in all compensations, profits and bonuses. Defendants argue that there would be a contradiction for a 20% shareholder to receive 331/s% of the dividends but not the losses of the corporation. In heir brief, defendants concede that in March and April 1972, the partis agreed orally that Wasserman could purchase stock in the corporation and that the sum of $20,000 for a 20% interest was proposed by Wasserman and agreed to by Joseph. Defendants further concede that in April 1972, they voted to issue to Wasserman 190 shares of Autohaus stock conditioned upon his agreeing to the restriction of his right to dispose of the stock. Likewise, Wasserman acknowledges that he knew based upon his conversation with Joseph in April 1972, that a restriction would be placed upon the disposition of his shares.

On May 2, 1972, Wasserman tendered a $20,000 check which stated on its face that it was payment for 20% of the stock of Autohaus. This check was immediately deposited into an Autohaus bank account. On May 15, 1972, Joseph signed a report of issuance of shares and increases in stated capital and paid-in surplus which was filed by Autohaus’ counsel with the Secretary of State on May 16, 1972. The capitalization of Autohaus as reported in the report of issuance was that the shares issued increased from 760 to 950, the stated capital increased from $76,000 to $95,000 and the paid-in surplus increased from zero to $1,000. Counsel for Autohaus testified that the $20,000 referred to in the report of issuance was the $20,000 received from Wasserman on May 2, 1972, and that 190 shares were issued to Wasserman on May 9, 1972, in consideration for his $20,000 payment. The report of issuance was filed approximately one week after Autohaus’ counsel had tendered the May agreement to Wasserman and he had refused to sign it. As stated by Autohaus’ counsel, the report of issuance was filed because the 190 shares of Autohaus stock were issued and outstanding in Wasserman’s name as of May 9, 1972, and Joseph had informed him that Wasserman had paid the $20,000. The certificate for the 190 shares was not delivered to Wasserman because he failed to sign an agreement. Under these circumstances, we do not find clear evidence of a condition precedent to Wasserman’s status as shareholder.

In accordance with the Business Corporation Act Autohaus filed annual reports with the Illinois Secretary of State. The 1973 annual report, the first annual report filed after Wasserman’s stock purchase, and every annual report filed through the year ending December 31, 1986, Autohaus reported the 950 shares as issued and outstanding. Defendants assert that the 190 shares issued to Wasserman on May 9, 1972, were “redistributed” in 1985. Fifty percent of the shares were reissued to Joseph and his son, and the remaining 50% were issued to Ralph after the Rosengardens concluded that Wasserman would never complete the agreement with Autohaus and that there was no longer going to be a “deal.”

Stuart Boykoff, defendants’ outside auditor, testified that in October 1972, the $20,000 payment made by Wasserman in May 1972 was classified as capital stock in the Autohaus general ledger and that at the time of trial Wasserman’s $20,000 investment remained on Autohaus’ books and records as part of the capital stock. Moreover, Boykoff testified that the entries indicated that Wasserman was the owner of the shares. Boykoff conceded that a ledger entry describing Wasserman’s entry as a loan could have been an error.

In October 1972, approximately five months after Wasserman refused to sign the May agreement, Autohaus classified the $20,000 payment as $19,000 for capital stock and $1,000 paid-in surplus pursuant to Joseph Rosengarden’s direction.

Autohaus’ Federal income tax returns for the fiscal years 1978-81 indicate that the Rosengardens owned 760 shares or 80% of Autohaus’ outstanding stock. The balance sheets reported that Autohaus had $95,000 in common stock and $1,000 in paid-in surplus. Financial statements prepared by Autohaus’ outside auditors for the years 1972 through 1983 reveal that Autohaus had 950 shares of stock issued and outstanding and a total capital of $96,000 ($95,000 in common stock and $1,000 in paid-in capital). These figures are consistent with Wasserman’s ownership of the 190 shares issued in May 1972.

The 1972 financial statement prepared in February 1973, nine months after Wasserman refused to sign the May agreement, and three months after he refused to sign the November 1972 agreement, reflect that Autohaus received $20,000 in additional working capital through the “Sale of Common Stock.” In March 1977, defendants offered to purchase Wasserman’s shares for $40,000, which according to Joseph was 20% of the current book value of Autohaus.

Therefore, the conduct of the parties evidences an attempt to negotiate the terms of a “buy-sell” agreement rather than the existence of a condition precedent. Accordingly, the trial court’s findings that Wasserman did not become and is not a shareholder in the Autohaus corporation are against the manifest weight of the evidence. Laroia v. Reuben (1985), 137 Ill. App. 3d 942, 485 N.E.2d 496.

Alternatively, Wasserman argues that the judgment cannot stand because defendants were precluded by the doctrines of waiver and estoppel from asserting the purported unsatisfied condition precedent as a bar to plaintiff’s stock ownership. The waiver of terms and conditions of a contract may be established or inferred from acts or conduct by the waiving party evidencing his intention to relinquish his known rights. (Beverly Bank v. Alsip Bank (1982), 106 Ill. App. 3d 1012, 1017, 436 N.E.2d 598, 602-03.) Even if the evidence established a shareholder agreement as a condition precedent, defendants waived any condition precedent to the sale of the shares to Wasserman when they accepted his payment, issued the shares, retained his payment and reported the stock issuance.

Wasserman further asserts that he quit his job, obtained a second mortgage on his home in order to invest $20,000 in Autohaus, and worked for five years on behalf of Autohaus at a reduced compensation level in reliance on his shareholder status. A party that accepts the benefits of an agreement is estopped from denying the existence of that agreement or from performing its obligations thereunder. (Cashman v. Shinn (1982), 109 Ill. App. 3d 1112, 1117, 441 N.E.2d 940, 943; Artnell Co. v. National Broadcasting Co. (1972), 4 Ill. App. 3d 970, 974, 282 N.E.2d 493, 495.) Defendants actively solicited Wasserman’s participation in the Autohaus venture based upon his experience and expertise as a retail automobile dealership manager and received the benefits of his five years of management during which time the business became increasingly profitable. In addition, defendants sought and received Wasserman’s financial participation.

Wasserman argues that he contributed his fair share of the capital needed to operate the business. The Rosengardens’ total cash investment to Autohaus was a $54,000 loan, which was paid to Northbrook upon the closing of the acquisition to reduce Northbrooks’ $75,000 note to $21,000. The Rosengardens’ loan to Autohaus was reduced from $54,000 to $32,000 prior to December 31, 1972, reducing their investment in Autohaus by $22,000. Wasserman’s $20,000 investment represented 38% of the actual cash advanced by the shareholders to provide working capital for Autohaus (after reduction of the Rosengardens’ loan from $54,000 to $32,000). The Rosengardens’ $32,000 loan to Autohaus was repaid with interest.

Autohaus secured other working capital needed to operate from loans guaranteed by the Rosengardens. Autohaus’ profits and cash were used to pay all of Autohaus’ obligations. While the Rosengardens assumed more financial risks than Wasserman did, Wasserman was responsible for the full time operation of the business. As of December 31, 1986, Autohaus’ indebtedness of $147,000 and $75,000 had declined to $56,000 and $4,575, respectively. From 1972 to year end 1976, Autohaus’ net worth increased from zero to $200,000. Thus, the Rosengardens and Autohaus received the benefit of their agreement with Wasserman and are estopped from asserting an alleged condition precedent as a bar to their obligations under the oral stock purchase agreement.

A person who presents the performance of an alleged condition to a contract cannot take advantage of his conduct to claim that the resulting failure of the condition relieves him of his obligation under the contract. (Grill v. Adams (1984), 123 Ill. App. 3d 913, 918, 463 N.E.2d 896, 900.) Since defendants failed to draft an agreement conforming to the parties’ oral understanding, and notwithstanding the absence of a written agreement, accepted Wasserman’s payment for the shares and retained it for their benefit without attempting to rescind or nullify the sale, they are estopped, five years thereafter, from asserting a condition as a bar or defense to their performance. Barrows v. Maco, Inc. (1981), 94 Ill. App. 3d 959, 966, 419 N.E.2d 634, 639.

Accordingly, we reverse the judgments of the trial court, hold that Wasserman was and is a stockholder of Autohaus and remand this cause for proceedings consistent with this opinion.

Reversed and remanded.

McNAMARA and WHITE, JJ, concur.

      Justice McNamara participated in this opinion prior to his assignment to the sixth division.


author: JUSTICE FREEMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. STEVE A. BUFFO, Defendant-Appellee.
    First District (3rd Division)
    No. 1—88—2275
    Opinion filed August 15, 1990.

      Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, Linda Woloshin, Toi Houston, and James E. Fitzgerald, Assistant State’s Attorneys, of counsel), for the People.
    Randolph N. Stone, Public Defender, of Chicago (Karen E. Tietz and Celia Gallagher, Assistant Public Defenders, of counsel), for appellee.
   JUSTICE FREEMAN

delivered the opinion of the court:

Defendant, Steve A. Buffo, was charged by misdemeanor complaint with one count each of unlawful use of a weapon, unlawful possession of a firearm and failure to produce a firearm registration certificate. Defendant filed a pretrial motion to quash arrest and to suppress evidence, which the trial court granted after an evidentiary hearing. The State appeals. 107 Ill. 2d R. 604(a)(1).

At the evidentiary hearing, defendant testified, inter alia, that, on May 24, 1988, at about 9 p.m., he was driving north on Laramie when he was stopped by the police. The police searched his car and confiscated a gun therefrom. Chicago police officer James McDonald testified that he first noticed defendant, who was driving behind him, when defendant’s bright headlight or lights blinded his vision to the rear. After stopping defendant and obtaining his driver’s license, McDonald ran defendant’s name through his mobile computer. The computer informed McDonald that defendant’s license was suspended. Based on that information, McDonald placed defendant under arrest, handcuffed him and placed him in the squad car. Thereafter, McDonald, “went back to secure [defendant’s] *** vehicle and back it up so that it was properly parked.” Asked if the car was illegally parked, McDonald answered, “Yes, it was up by the traffic light.” Upon entering the vehicle and putting his foot by the gas pedal, McDonald observed a “twenty-five automatic” by his foot. After looking “around” the vehicle further, McDonald locked it and returned to the squad car.

In deciding defendant’s motion, the trial court first stated that it had “no problem” with the initial stop of defendant or with the fact that McDonald’s mobile computer indicated that defendant’s license had been suspended. However, the court then held that McDonald had no right to enter defendant’s vehicle without defendant’s request or consent or evidence that no one else could have moved his vehicle for him. It so held notwithstanding that McDonald had used his common sense in entering and moving defendant’s car knowing that the car was illegally parked.

Opinion

On appeal, the State contends the trial court’s grant of defendant’s motion was manifestly erroneous. Specifically, the State asserts that Officer McDonald observed defendant’s gun in plain view from a place where he had a lawful right to be and that, therefore, his entry into defendant’s car did not constitute a “search” in the constitutional sense. Expanding on McDonald’s right to be in defendant’s car, the State asserts that he entered the car on the basis of exigent circumstances, viz., the need to secure defendant’s car and, more importantly, the need to ensure the safety of the public highways by removing defendant’s car from its illegally parked location near a traffic light.

We cannot agree with the State that Officer McDonald’s entry into defendant’s vehicle was justified by exigent circumstances. In so arguing, the State completely ignores that it was McDonald’s failure, in the first place, to ensure that defendant parked his vehicle legally before stopping him that created the allegedly exigent circumstance upon which it now relies to justify McDonald’s subsequent entry into the vehicle. Given that fact, a finding that McDonald was justified by exigent circumstances in entering defendant’s car would provide the police an incentive to create exigent circumstances in order to validate other impermissible searches and seizures in the future. We do not believe that the exigent circumstances exception to the fourth amendment’s search warrant requirement should be so perverted.

In this regard, it may be argued that Officer McDonald did not know that an arrest would result from an otherwise routine traffic stop conducted for the purpose of issuing a citation and that, absent such knowledge, his failure to have required defendant to stop at a legal parking space should not invalidate his entry into the stopped vehicle after an arrest became necessary. However, we believe that the possibility of an arrest resulting from a routine traffic stop is sufficiently high that the police should pull a vehicle over to a legal parking space or, at least, to a point in the road at which the vehicle will not obstruct traffic. Having failed to do so, Officer McDonald could not take advantage of that failure to enter defendant’s car on the pretext of an exigent circumstance. In so holding, we also take note of the fact that, after he discovered defendant’s weapon in the vehicle, Officer McDonald exited and locked the car without, in fact, moving it from where defendant had stopped. That additional failure by Officer McDonald makes the State’s exigent circumstances argument an even more slender and tenuous reed upon which to hang his entry into the vehicle.

The State alternatively argues that, even if the seizure of defendant’s weapon is not justifiable under the plain -view and exigent circumstances exceptions to the fourth amendment’s search warrant requirements, the weapon is admissible against defendant on the basis of the inevitable discovery rule (Nix v. Williams (1984), 467 U.S. 431, 81 L. Ed. 2d 377, 104 S. Ct. 2501) or the good faith of Officer McDonald.

With respect to the former, the State notes the requirement for application of that rule that it be shown, by a preponderance of the evidence, that the evidence at issue would have been discovered by lawful means. (Nix, 467 U.S. at 444, 81 L. Ed. 2d at 387-88, 104 S. Ct. at 2509.) In accordance with that requirement, the State argues that in this case “lawful means included the fact that the officer could have had the car towed subsequently, resulting in a valid inventory search or administrative caretaking procedure,” citing South Dakota v. Opperman (1976), 428 U.S. 364, 49 L. Ed. 2d 1000, 96 S. Ct. 3092. We find this argument unavailing.

Firstly, we believe that the preponderance of the evidence standard applied to the “lawful means” requirement for application of the inevitable discovery rule recognizes that a court, whether of trial or review, must be able to conclude that the evidence at issue would have inevitably been discovered by lawful means from the record before it. That requirement is not met in this case, where it is only on appeal, and without evidentiary support, that the State seeks to justify the admissibility of defendant’s weapon on the basis of an inevitable and lawful inventory search or other caretaking procedure. The fact that we might take judicial notice of the legality of inventory searches as a general rule does nothing to cure the State’s failure to show that such a search of defendant’s car would have been, in fact, conducted after his arrest. Because of that failure and because it did not involve the inevitable discovery rule, Opperman, in which an inventory search of the defendant’s car was conducted after it was legally impounded, provides no support for the State’s argument.

With respect to the State’s “good faith” argument, we must note that Michigan v. Tucker (1974), 417 U.S. 433, 41 L. Ed. 2d 182, 94 S. Ct. 2357, the case upon which it relies therefor, was not a fourth amendment case. Rather, it involved the right established in Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, of an indigent defendant to be advised of the right to have counsel appointed for him. In concluding that the defendant was not entitled to the exclusion of evidence obtained as a result of his interrogation, the court relied, inter alia, upon the fact that the police had acted in good faith in advising the defendant of his rights. Specifically, the court noted that the defendant’s interrogation occurred prior to the pronouncement of the Miranda decision and that he was advised of his rights as they had been pronounced in the earlier decision of Escobedo v. Illinois (1964), 378 U.S. 478, 12 L. Ed. 2d 977, 84 S. Ct. 1758.

Because it did not involve the fourth amendment and, more importantly, because Officer McDonald did not, like the police officers in that case, act in accordance with any good-faith interpretation of law existing at the time of defendant’s arrest, we find Tucker unavailing to the State. On a more fundamental level, we do not believe that there is a good-faith exception to the fourth amendment’s search warrant requirement applicable to warrantless searches, as opposed to searches pursuant to defective warrants. In United States v. Leon (1984), 468 U.S. 897, 82 L. Ed. 2d 677, 104 S. Ct. 3405, the Supreme Court established an exception to the exclusionary rule in cases where the police have acted in good-faith reliance upon search warrants later invalidated. However, Illinois courts have heretofore declined to extend the good-faith exception first recognized in Leon to the context of searches not conducted pursuant either to warrant or statute. (People v. Madison (1988), 121 Ill. 2d 195, 520 N.E.2d 374, cert, denied (1988), 488 U.S. 907, 102 L. Ed. 2d 246, 109 S. Ct. 257; People v. James (1986), 149 Ill. App. 3d 214, 500 N.E.2d 474, rev’d on other grounds (1987), 118 Ill. 2d 214, 514 N.E.2d 998, cert, denied (1988), 484 U.S. 1045, 98 L. Ed. 2d 866, 108 S. Ct. 780; People v. Potter (1986), 140 Ill. App. 3d 693, 489 N.E.2d 334.) We also decline to do so.

For all of the foregoing reasons, we affirm the order of the trial court granting defendant’s motion to suppress evidence and to quash his arrest.

Affirmed.

RIZZI and WHITE, JJ., concur.

      The court thus rejected defendant’s testimony that his bright lights had not been on before being stopped and his attempt to establish lack of probable cause for the stop by showing that his license was not, in fact, suspended at that time.


author: JUSTICE LINN

text:
      In re MARRIAGE OF THOMAS DONALD FAZIOLI, Petitioner-Appellee, and ELIZABETH JEAN FAZIOLI, Respondent-Appellant.
    First District (4th Division)
    No. 1—89—1662
    Opinion filed August 9, 1990.

      Frank E. Mosetick and Michael J. Mosetick, both of LaGrange, for appellant.
    David A. Novoselsky & Associates, of Chicago (David A. Novoselsky and Linda A. Bryceland, of counsel), for appellee.
   JUSTICE LINN

delivered the opinion of the court:

Respondent, Elizabeth Fazioli, appeals from an order of the circuit court of Cook County, which modified the judgment for dissolution of marriage and child support but denied other requests for relief.

On May 10, 1983, petitioner Thomas Donald Fazioli and Elizabeth Jean Fazioli were awarded a judgment for dissolution of marriage. A marital settlement agreement between the parties was approved and incorporated in the judgment for dissolution.

Under the terms of the agreement, Elizabeth retained sole custody of the parties’ two minor children, Joseph Anthony, age 10 at the time, and Ann Marie, age six. Thomas was awarded reasonable visitation. Elizabeth was awarded $2,000 per month as unallocated support and maintenance. However, the first monthly payment was to be in the amount of $5,500. The unallocated support payments were based on Thomas’ 1982 adjusted gross income of $64,500.

From the marriage, Thomas retained a 1978 Jaguar automobile. Elizabeth retained all of the personal property, art work, furniture, furnishings and other belongings then in the marital residence. Each party retained the IRA account at American National Bank & Trust Company which was in his or her name. Thomas also executed a quitclaim deed in favor of Elizabeth to the two-apartment building which housed the parties’ marital residence at 539 North Franklin Street in River Forest, Illinois. Thomas also agreed to pay the balance due for home remodeling costs which had been undertaken prior to the separation of the parties.

Also as part of the agreement, Thomas agreed to maintain his term life insurance policy in the amount of $500,000. Elizabeth was a beneficiary of the policy in the amount of $250,000. Each of the children was a beneficiary in the amount of $125,000. Thomas remained responsible for the children’s medical insurance.

On September 16, 1987, Elizabeth filed a petition to modify the judgment for dissolution of marriage and child support. The petition alleged that Thomas’ income had substantially increased and he was well able to afford an increase in child support. She also alleged that the needs of her children and her own needs had increased.

A hearing was held on the petition. Elizabeth offered testimony as to the alleged increased needs of the children and herself. She testified that she still resided with her children at 539 Franklin in River Forest. She rented the first-floor apartment for $975 per month. In 1983 the apartment rented for $675 per month. The mortgage payments on the home were $730 per month. According to Elizabeth, the house required a lot of maintenance, including washing the walls when new tenants moved in and gardening. The tenants paid their own electric and telephone bills. Elizabeth provided heat, water and garbage pick-up.

Since the date of the judgement for dissolution of marriage, Elizabeth has, according to her testimony, incurred debts totaling $38,458. She testified that she borrowed $12,000 from her parents to side the home and install storm windows. Although she could have had it painted for $4,000, she installed the siding to alleviate the necessity of having to paint every few years. In 1985 a pipe broke in the wall, and Elizabeth had to borrow $875 from her parents for the repairs. In 1988 she borrowed another $375 from them for a new garage door opener.

In 1987, Elizabeth borrowed $30,000 from her parents to reduce her mortgage payments. This $30,000 debt was in addition to the $38,458 debt to which she had testified. At the time of the hearing the market value of the home was $235,000, and there was approximately a $40,000 mortgage.

Elizabeth testified that in 1983 she had to buy a used car for $7,800 because Thomas took the family car in the divorce. An additional $6,000 had to be borrowed from her parents for this car. In 1986 she had to borrow $1,000 from a friend for current expenses. In 1987 Elizabeth had to borrow $2,100 for medical bills for herself. She also had to borrow an additional $4,300 from her parents for another car. In 1988 Elizabeth had to borrow $3,375 from family and friends to meet current expenses.

Elizabeth presented two affidavits to the trial court, one listing monthly expenses in 1983, the other expenses for 1988. She claimed that her monthly expenses had risen to $5,748 and her income was $3,056 per month, leaving a deficit of over $2,000. However, Elizabeth’s affidavit claimed expenses for real estate taxes which, as elicited through cross-examination, were included in the monthly mortgage payment. Rental on her art gallery, which she operated at a substantial loss, was included twice and, although she claimed an increase in house maintenance from 1983 to 1985 from $50 to $500, she produced no bills or receipts explaining this increase.

As part of her monthly budget, Elizabeth listed $250 a month for the children’s educational expenses. However, Elizabeth testified that if she asked Thomas to reimburse her for these expenses, he did.

Elizabeth earned approximately $81 per month as a substitute lunchroom aide. Elizabeth had a bachelor’s degree in education and taught elementary school from 1968 to 1983. Her teacher’s certificate, however, had then expired, and she had not enrolled in courses which would enable her to renew the certificate. Elizabeth testified that she had checked into teaching but there were no jobs. She had not applied for any full-time teacher’s aide positions.

Thomas took no personal property from the marriage other than his automobile. After the divorce he first lived in an apartment. In 1984 or 1985, he purchased a condominium. In 1986 Thomas and his new wife purchased a home in Barrington Hills for $265,000. The house was located on a five-acre lot. Thomas testified that his wife, who was then pregnant, used part of her proceeds from a personal injury settlement to build a horse barn, and they kept four horses on the property. Thomas also had a swimming pool installed which cost approximately $34,500.

In 1986, Thomas, a personal injury attorney, had a gross income of $416,286. In 1987, his gross income was $298,779. For 1988, his estimated income was $212,635 minus about $81,000 for expenses. He explained that his income varied from year to year.

Thomas estimated that the children from his marriage to Elizabeth spent approximately one-third of the year with him, and he paid for all the food and their expenses when they were with him as well as the full $2,000 for maintenance and support to Elizabeth.

Thomas buys clothing for the children, including riding clothes for Ann and suits for his son’s school debates. He also paid his son’s expenses for debating trips and for Ann’s equestrian events. Thomas estimated that he also paid $2,500 a year for his son’s summer program and $500 for his daughter’s summer program.

After the hearing, the trial court ruled that the children’s school, extracurriculars, ordinary medical and camp expenses, which Thomas had voluntarily been paying, were now mandatory payments. Therefore the court refused to increase the unallocated maintenance and support paid to Elizabeth. In making its ruling, the trial court commented:

“It certainly is clear to the Court that the expenses that Mrs. Fazioli is incurring for rent for her studio, for her art supplies, for going to various art fairs should not be the obligation of Mr. Fazioli. It appears that although she’s running a business for her art interests, that it is bringing no income to her. And it does not appear to this Court that Mr. Fazioli should have to defray these costs. And it is clear to the Court that many of the improvements on the home should not be Mr. Fazioli’s obligation, since they are adding to the equity in the asset which Mrs. Fazioli was awarded by the judgment.”

The court further stated:

“But the Court has very closely reviewed the affidavit of Mrs. Fazioli to see if in fact, there has been an increase in the needs of the children, and of the household. It is clear to the Court that there have been some increases for the children’s expenses, but that most of the increases on Mrs. Fazioli’s affidavit are for debts that she has accrued over the past couple of years for improvements in the house, for a car, for her and for art supplies and expenses for a business that she’s apparently, running.”

Elizabeth argues that the trial court erred by denying her petition to modify unallocated maintenance and support. The court did modify the judgment to the extent that Thomas was now required to pay certain expenses which he had been paying voluntarily. However, since the denial of an increase in the monthly payment affected both maintenance and child support, we shall treat both issues because of their interrelationship due to the method that the parties selected in entitling the payments unallocated maintenance and support. We first address the portion of the court’s order as it relates to maintenance.

Elizabeth and Thomas entered into a marital settlement agreement. This agreement was incorporated as part of the judgment dissolving the parties’ marriage. The terms of a settlement agreement, except as they pertain to children, are binding upon the court and will be set aside only if the court is shown that the agreement is unconscionable or procured through fraud, coercion or duress. In re Marriage of Stadheim (1988), 170 Ill. App. 3d 19, 23, 523 N.E.2d 1284.

Furthermore, a court may modify a maintenance award “only upon a showing of a substantial change in circumstances.” (Faris v. Faris (1986), 142 Ill. App. 3d 987, 1000, 492 N.E.2d 645.) A trial court’s decision as to modification will not be disturbed absent an abuse of discretion or unless it is against the manifest weight of the evidence. (In re Marriage of Lasota (1984), 125 Ill. App. 3d 37, 41, 465 N.E.2d 649.) The burden of demonstrating the alleged substantial change in circumstances is on the party seeking relief. In determining whether and to what degree a maintenance award shall be modified, the trial court should consider the same factors which, under the statute, are to be assessed in making the initial award. Lasota, 125 Ill. App. 3d at 41.

In In re Marriage of Mittra (1983), 114 Ill. App. 3d 627, 634-35, 450 N.E.2d 1229, the court held that the party receiving maintenance is under an affirmative obligation to seek appropriate training and skills to become financially independent.

Elizabeth argues that a substantial change in her circumstances justified an increase in maintenance. She notes that Thomas’ income has substantially increased and her expenses have greatly increased. However, many of Elizabeth’s contentions regarding expenditures were refuted. Furthermore, many of her expenses were for improvements to her home, some of which were not necessary.

Elizabeth also testified that she spent $362 to rent space for her art gallery and for supplies yet this business earned her only $450 to $500 in the year before the hearing. Elizabeth has increased her financial difficulties by persisting in a failing business. The fact that her financial transactions have increased her difficulties in meeting her expenses should not cause a disadvantage to her former husband. SeeFaris, 142 Ill. App. 3d at 1000.

The record discloses that Elizabeth has a college degree in education and taught from 1968 to 1983. However, the record does not indicate that Elizabeth has tried to find a job as a full-time teacher’s aide, or that she has returned to school to take courses necessary to regain her teacher’s certificate. Based on the situation of the parties as a whole, Elizabeth has not demonstrated the trial court’s ruling was an abuse of discretion.

Modification of child support is governed by section 510 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1987, ch. 40, par. 510(a)). Upon application for a modification of support, the court’s paramount consideration is whether a substantial and material change in circumstances has occurred since the entry of the judgment which would authorize the court to change the allowance. (Roqueplot v. Roqueplot (1980), 88 Ill. App. 3d 59, 62, 410 N.E.2d 441.) Where a former spouse’s ability to pay is shown, the fact that the children have grown older and the cost of living has risen are proper bases for establishing increased need. (,Schmerold v. Schmerold (1980), 88 Ill. App. 3d 348, 350, 410 N.E.2d 629.) The increase in the children’s needs must be balanced against the relative ability of the parents to provide for them, and where a change has occurred which creates a substantial imbalance between the child’s needs and the parent’s support capabilities, modification is required. Schmerold, 88 Ill. App. 3d at 350-51.

Although various household expenses are expenses that can, in part, be attributable to the children, Elizabeth has not shown any specific increased needs of the children for which Thomas was not already voluntarily paying. To the extent that Elizabeth demonstrated that some of the children’s needs for which Thomas was already providing increased, the trial court modified the judgment and ordered Thomas to now pay these expenses. Although it is clear that the husband’s income and net worth have increased over the years, his responsibilities have also increased. Further, Elizabeth also has an obligation to financially contribute to the support of the family. There was nothing in the record to suggest that she is unable to do so. The modification of child support payments lies within the sound discretion of the trial court and will not be reversed absent an abuse of discretion (In re Marriage of Bussey (1985), 108 Ill. 2d 286, 296, 483 N.E.2d 1229), which is not present here.

The trial court increased the husband’s payments by the amount it felt the children’s needs had increased. On this record we are unable to conclude that the trial court abused its discretion in refusing Elizabeth’s request for additional sums.

Order affirmed.

McMORROW, P.J., and JOHNSON, J., concur.