author: JUSTICE EGAN

text:
    EDWARD KELLAN, Plaintiff-Appellee, v. BOARD OF TRUSTEES OF THE FIREMEN’S PENSION FUND OF THE CITY OF PARK RIDGE, Defendant-Appellant.
    First District (6th Division)
    No. 1—88—3730
    Opinion filed February 9, 1990.

      Paul N. Keller, of Park Ridge, for appellant.
    John C. Broihier, of Di Leonardi & Broihier, Ltd., of Des Plaines, for appellee.
   JUSTICE EGAN

delivered the opinion of the court:

The plaintiff, Edward Kellan, was a civil service firefighter for the City of Park Ridge (City). He filed a claim with the defendant, Board of Trustees of the Firemen’s Pension Fund of the City of Park Ridge (Board), for duty-related disability which would entitle him to a pension of 65% of his salary. After a hearing the Board agreed that he was unable to perform the duties of a firefighter but claimed that his disability was not duty related and that, therefore, he was entitled to a pension of only 50%. The plaintiff filed a complaint for administrative review in the circuit court, which reversed the decision of the Board, holding that the Board’s decision was against the manifest weight of the evidence. The defendant contends in this court that the circuit court erred in finding that the Board’s decision was against the manifest weight of the evidence and that the plaintiff, as a matter of law, is not entitled to a duty-related disability pension because his disability was allegedly not the result of an act of duty.

The plaintiff joined the Park Ridge fire department in November 1967, at which time he was not experiencing any back, muscle, or other pain. A Park Ridge Civil Service Commission Medical Examination Report dated October 6, 1967, indicated that the plaintiff had no disabilities and was in “very good” physical condition.

During the plaintiff’s tenure with the fire department, he suffered several on-the-job injuries:

(1) On August 2, 1974, he lacerated his right hand and pulled muscles in his lower right back while fighting a fire. He received medical treatment.

(2) On March 29, 1975, he lifted a patient into an ambulance and suffered a severe back strain. He received treatment at a hospital and underwent 31 days of physical therapy consisting of diathermy, deep heat, massage, and rest. He lost 41 days from work.

(3) In November 1977, while working as a fireman-paramedic, he injured his right arm and his lower back while removing a patient from an ambulance at a hospital. He received immediate treatment at the hospital and was subsequently examined by a doctor, who took a lower spine X ray and determined that the plaintiff suffered a sprained back in addition to tendonitis in his elbow.

(4) On May 20, 1978, he incurred a muscle strain in his right shoulder while lifting a stretcher; he was treated at a hospital.

(5) On November 12, 1978, while testing fire hydrants, he attempted to loosen the nut on a hydrant with a wrench; the nut shattered, and he fell and injured his shoulder. He received treatment immediately at the hospital and, regularly over the ensuing eight to nine months, for a separated shoulder. He lost 11 months of work as a result of the injury.

(6) On July 2, 1981, he again injured his shoulder while opening a fire hydrant. This injury resulted in an operation to repair a torn biceps tendon. He was off work for a few months, then returned to light duty for approximately 3V2 years. He underwent “many different forms of physical therapy.” After returning to full duty, he resumed firefighting duties but lost his paramedic duties.

(7) On November 23, 1985, he experienced a sharp pain in his lower back after he attempted to stop a stationhouse garage door from coming down on an ambulance in which paramedics were treating a patient. He saw a doctor the following day and received a prescription for muscle relaxants and pain medication; he missed one day of work.

(8) On January 23, 1986, while assigned to a van used for retrieving stray dogs, he shut the door to the van and slipped on a patch of ice, landed on his buttocks and jolted his back. He went to the doctor for lower back pain and received a pain medication and a muscle relaxant.

(9) On June 10, 1986, he was riding in the passenger seat of a fire engine that hit a pothole; he hit his head on the ceiling and was “slammed back down in the seat again.” He was not wearing his helmet since he. did not fit in the cab while wearing one. He saw a doctor for back and neck pains, and he received pain medication and a muscle relaxant and missed one day of work. The driver of the fire engine, James Vogner, testified that hitting the pothole caused “one heck of a bump.” Another fireman who was riding in the fire engine, August Schramel, testified that “[w]e hit a good hole and we both flew up.” He said that they got “a good jolt out of it.”

(10) On September 16, 1986, while working on light duty, the plaintiff was seated at a table in the station house. He testified that the following occurred as he prepared to get up to go check buildings with the fire prevention officer.

“I was sitting there and I grabbed my books and I turned to the right to get out of the chair and there was an extremely sharp pain in my low back. I didn’t get more than an inch or two off the chair, and I guess I yelled or something. I don’t recall exactly what happened.
I sat down and [the fire prevention officer] said, ‘What’s the matter.’ I said, ‘I’ve got a pain in my back. I can’t get up.’ He just sat there for a minute, and I said, ‘I’m going to try it again,’ and I tried. There was just no way I could get out of the chair at that moment.”

The fire-prevention officer, Richard Arthur, testified that as the plaintiff tried to get up from the chair he “just stopped halfway and winced with pain and said that his back was bothering him.” Arthur also said that as the plaintiff was “getting up he had a real sharp pain in his back and he displayed pain in his face.” Ernest Paul, the firefighter who drove the plaintiff to the chiropractor at that time, testified that the plaintiff was sitting in the office complaining of pain. He said that the plaintiff “look[ed] like he was in a good amount of pain.”

The plaintiff was driven to the chiropractor, who applied ice packs and electric current and massaged the plaintiff’s back. He sent the plaintiff home with instructions to apply alternately heat and ice. The next evening the plaintiff saw Dr. Per Freitag, who discovered that the plaintiff had herniated disks in his neck and lower back. The plaintiff never returned to work after September 16,1986.

The plaintiff testified that he had never sustained a back or spine injury while he was off duty. His only back injuries were suffered while at work. His only hobby is fishing. He had very little off-duty employment while working for the fire department.

After the plaintiff filed a claim for disability, he was required by the Board to submit to examinations by Dr. Richard Sturm, Dr. Herbert Loseff and Dr. David Spencer. Dr. Sturm and Dr. Loseff gave the Board reports which were favorable to the plaintiff. Apparently Dr. Spencer gave a report which was not favorable to him. A trustee of the Board, Curt Edelmann, sent a letter to Dr. Sturm and Dr. Loseff which is not part of the record. References to the letter by Dr. Sturm and Dr. Loseff and other matters in the record indicate to us that Edelmann took exception to their reports and made allegations of fact, apparently based on his personal knowledge, which the doctors were to consider. He did not send a similar letter to Dr. Spencer. Both Sturm and Loseff subsequently sent second reports to the Board which we will discuss later. Dr. Freitag, the plaintiffs treating physician, and Dr. Sturm testified for the plaintiff. Dr. Loseff s reports were introduced by the plaintiff.

Dr. Freitag had been the plaintiff’s treating physician since September 17, 1986. It was he who first discovered that the plaintiff had herniated disks in his lower back and one in his neck. It was his opinion, based on the medical history that had been provided by the plaintiff, the physical examination and objective testing, that the plaintiff was unable to carry on the full and normal duties of a firefighter. Freitag said that sitting is very difficult for the plaintiff and is “about the worst position he can be in.” He said that any one or a combination of the plaintiff’s injuries could have resulted in the herniation in the cervical spine, which is in the neck, as well as the herniation in the lumbar spine, which is in the lower back. Freitag also testified that it was his opinion that the injuries to the spine were duty related, “based on the history as of the date the plaintiff was injured and [his] being on the job when these injuries took place.”

Dr. Sturm, who is board certified in internal medicine and occupational medicine, examined the plaintiff for a disability evaluation on October 9, 1987. As a result of the examination he prepared two letters, dated October 12, 1987, and November 30, 1987. He also discovered that the plaintiff had two herniated disks in his back and one in his neck. He testified that the plaintiff had informed him of six incidents in which he suffered injury. He further testified as follows:

“In the nature of scientific proof, we would like to be perhaps 95 percent sure or 99 percent sure that something is true before we assert that it’s a scientific truth.
I believe the kind of truth you’re asking me about is a reasonable degree of medical certainty which in- my understanding is a 51-percent chance or greater that events are causally related.
If this is the case, reviewing [the plaintiff’s] history of these injuries, it did seem to me that there was greater than a 51-percent chance that these injuries as described played some part or even a major part in his herniated disks.
I think it’s more likely than not that these incidents played a major role in causing or in making symptomatic his herniated disks.
The injuries that were cited as on-the-job injuries are the only forceful traumatic injuries that are recounted in [the plaintiff’s] medical history. No other injuries were discovered that would contribute materially to [the plaintiff’s] problem.
But based on the number of injuries presented by him as work-related injuries *** and the medical history, I felt it was more likely than not that these injuries played a major cause in his herniated nucleus pulposus.”

In his first report to the Board, Sturm expressed the opinion that the herniated disks were caused by injuries to the plaintiff while he was on duty. After receiving the letter from Edelmann questioning Sturm’s conclusion, Sturm submitted a second report adhering to his opinion that the plaintiff’s on-duty injuries caused the disk herniations.

Sturm also said that it is not possible to determine the cause of a herniated disk without reference to medical history; that medical history is very important to a diagnosis and that good medical practice requires taking such a history.

In Dr. Loseff’s first letter, dated November 13, 1987, he said that the plaintiff had “several job-related injuries”; that he diagnosed the plaintiff as having herniated disks and that he “believefd] the on-the-job incidents were the cause of this patient’s problems.”

After he received Edelmann’s letter, Loseff changed his opinion. The plaintiff’s lawyer then sent a letter to Loseff in which the attorney sought to answer the allegations of fact Edelmann made in his letter. The plaintiff’s attorney expressed the view that Dr. Loseff had changed his opinion because of the “alleged facts” contained in Edelmann’s letter and expressed disagreement with certain statements of fact made by Edelmann. He included in the letter both of Dr. Sturm’s reports, and he asked that Loseff again reconsider his opinion based on Dr. Sturm’s opinion and the response to Edelmann’s factual allegations.

Loseff wrote a letter to the plaintiff’s attorney which is, in part, as follows:

“What seems to be an issue here is whether or not his job caused all of his problem. As you know, much of this information was not available to me on the basis of my initial examination. If what you say regarding his injuries can be substantiated, I believe that the patient probably has a problem with his low back and his disabilities which is work-related. However, because there is such a difference of opinion between you and Mr. Edelmann’s statements, I cannot verify which is fact and which is fiction. I will have to state that I only can go upon what the patient told me.
In summary, if what you describe in your letter of December 18th is true, then I would say that this patient has a work-related injury.”

Dr. David Spencer, an associate professor of orthopedic surgery and a practicing orthopedic surgeon, testified for the defendant. Based on his findings, he concluded that the plaintiff had degeneration of the disks in his back and neck, a condition very characteristically seen in 50-year-old individuals, and that the plaintiff should not continue to work as a fireman. At the time he submitted his report to the Board he was aware of only the incident on September 16, 1986, when the plaintiff attempted to arise from his chair.

Since we conclude that Dr. Spencer’s testimony removes any doubt of the propriety of the order of the circuit court, we set out the pertinent portions verbatim:

“A. However, I did not feel that there was any evidence in the history that he had given me that there was any single significant on-the-job accident that could be attributed as the 'primary cause for any of these disk herniations.
Q. The last sentence of your letter indicated that the on-the-job incidents merely aggravated pre-existing or underlying conditions-, is that correct?
A. Right.
Q. Now, doctor, I’d like to ask you to explain that for the Board if you would, please. What is or was the pre-existing condition that you’re referring to?
A. Age-related degeneration of the intervertebral disks.
A. It’s my opinion that in essence, Mr. Kellan’s condition is the result of a lifetime of accumulated effects and that the episodes that I mention, the four specific episodes [of injuries on the job] indeed aggravated that. I’m not contesting that he didn’t have pain after those episodes. I’m sure he did. The fundamental reason he had pain was not because he didn’t have an acute injury at that time but that he aggravated a weak back, for example, if I can use that kind of familiar term and that that weakness or degeneration was the result of a life-long activity of hard work and a little bit of bad luck in the sense that he had disks that had a propensity to deteriorate and bulge like this.” (Emphasis added.)
On cross-examination the following exchange occurred:
“Q. Now, you’re now aware of the fact that there were more incidents involving the spine than you initially were aware of. ***
Now, again, when you talk about a degenerated disk, is it possible that those series of incidents could have caused and started the degeneration of the disks that you noticed?
A. Yes.
Q. Is it also not true that once that process commenced, that any one of those particular incidents may have been the straw that broke the camel’s back; is that correct?
A. Possible.”

Later, the doctor testified that he was convinced that every single one of the injuries to which the plaintiff had testified contributed to his back problem.

On redirect examination he was asked whether the incidents were the “sole cause” of the plaintiff’s present condition. He answered that the plaintiff did not have one specific job-related trauma that could be held responsible. He said he was convinced that the degeneration in the plaintiff’s spine is “more severe than if he had had a different line of work.” In response to a question by a trustee he said that he was convinced that the plaintiff’s “problem is partially a result of his job and partially a result of misfortune, bad luck of having the back that he has.”

It is our judgment that Dr. Spencer’s testimony standing alone would require an award of duty disability to the plaintiff. It is also our judgment that the Board was not aware of the applicable law as evidenced by the remarks during the Board’s deliberation. Trustee Edelmann, who appears to have taken the lead role in questioning the plaintiff’s claim, summed up the evidence at the beginning of the Board’s deliberation. In that summation he said that “[ijt’s probably true that firefighting played a role in the applicant’s disability.” He concluded as follows:

“I think the facts as presented in this hearing point out that the applicant because of both on-the-job injuries and off-the-job activities has worn his body out causing a disk herniation which has developed into debilitating symptoms; that since acts of duty alone cannot be established as the cause of the disability or even a major factor causing the disability, I think that the Board should award a 50-percent disability.” (Emphasis added.)

The statute in issue is section 4 — 110 of the firefighters’ pension fund act (Ill. Rev. Stat. 1987, ch. 1081/2, par. 4 — 110) and provides in part as follows:

“If a firefighter, as the result of sickness, accident or injury incurred in or resulting from the performance of an act of duty or from the cumulative effects of acts of duty, is found *** to be physically or mentally permanently disabled for service in the fire department, so as to render necessary his or her being placed on disability pension, the firefighter shall be entitled to a disability pension of 65% of the monthly salary attached to the rank held by him or her in the fire department at the date he or she is removed from the municipality’s fire department payroll.”

In Mitsuuchi v. City of Chicago (1988), 125 Ill. 2d 489, 532 N.E.2d 830, the supreme court pointed out that the statute governing disability, pension and death benefits for police officers serves purposes equivalent to workers’ compensation and that the system created for the compensation of injured officers under the Illinois Pension Code (Ill. Rev. Stat. 1981, ch. 1081/2, pars. 22 — 306, 22— 307) is analogous to that established by the Workers’ Compensation Act (Ill. Rev. Stat. 1987, ch. 48, pars. 138.1 through 138.30). Because of similarity of language and because the Pension Code was enacted to provide policemen and firemen with benefits similar to those provided employees under the Workers’ Compensation Act, the standards developed under that act are applicable. O’Donnell v. City of Chicago (1984), 126 Ill. App. 3d 548, 467 N.E.2d 971.

In Olson v. City of Wheaton Police Pension Board (1987), 153 Ill. App. 3d 595, 505 N.E.2d 1387, the court held that rules governing police and firemen’s pensions must be liberally construed in favor of the applicant and that the pension statute did not bar an award of a line-of-duty disability pension based upon the aggravation of a preexisting physical condition. In support of that conclusion the court stated as follows:

“We are supported in our decision by cases in which our supreme court determined that evidence of a preexisting physical disability will not bar an award of compensation for a job-related injury caused by the ‘stress of his usual labor.’ [Citations.] Although these cases arose under the Workers’ Compensation Act (Ill. Rev. Stat. 1985, ch. 48, par. 138.1 et seq.), we consider that the principle applies to the facts of the present case.” 153 Ill. App. 3d at 598.

The defendant makes three arguments against a holding that the evidence proves aggravation of a preexisting condition. First, it says that there is no evidence to support such a finding. Dr. Spencer’s testimony clearly refutes that position. Second, the defendant says that the trial judge “gratuitously announced at the conclusion of his oral opinion that he concurred” in the Olson opinion. It is true that the judge had already ruled but then added that he wanted his agreement with the “dicta” of the Olson court made part of the record for the benefit of the appellate court.

The practice of a judge explaining the reason for his ruling is to be encouraged, not criticized. Courts of review have often expressed a wish that the trial judge had, in fact, given the reasons for his rulings. In addition, the judge’s remarks should not have been a surprise to the defendant. It was not the first time that the Olson case was mentioned; the defendant’s attorney had cited Olson in his brief.

Before oral argument began in the circuit court, it was the judge who raised the applicability of the rule concerning aggravation of a preexisting condition. The defendant’s attorney pointed out that that theory had not been presented to the Board. He added that the holding of the Olson case concerning aggravation of a preexisting condition was “dicta,” although “the [Olson opinion] did give some background on that issue.” It is clear to us that the judge had read the defendant’s brief, was aware of the expression of the law in Olson and correctly agreed with it whether that expression was obi-ter dictum or not.

A discussion of the third reason advanced by the defendant to dissuade us from considering the issue — that the plaintiff did not raise the theory at the hearing before the Board — requires a discussion of other arguments made by the plaintiff in the circuit court. He argued first that the attorney for the Board was also the attorney for the City and had been improperly substituted for the Board’s regular counsel. The plaintiff also argued that Edelmann was not an impartial trustee because Edelmann had sent letters to Dr. Sturm and Dr. Loseff questioning their original conclusions and because Edelmann had told the plaintiff’s attorney at the end of the first day of the hearing that Edelmann and the other members of the Board did not feel they could grant the plaintiff a duty disability. (Edelmann admitted that conversation.)

During the argument before the judge, the attorney for the Board sought to dispel any suggestion of impropriety because, he argued, the proceedings were not adversarial:

“I think, Your Honor, that a careful reading of the record in this case would indicate that notwithstanding the fact that the chairman of the Board of Trustees of the Pension Fund acted pursuant to my advice and recommendations, nevertheless, all evidentiary matters, it was the Board itself through its chairman, the president, Mr. Paulson, who made all rulings on all evidentiary objections.
I’d also like to point out to the court that this entire proceeding was not structured and not presented as a prosecution. There was no — no attorney acting against the interest of the applicant, Mr. Kellan. This was — this whole proceeding was carried out as an investigatory process.
Acting at the discretion of the Board, I assisted the Board in questioning the witnesses. I assisted the Board to determine what witnesses ought to be called, and I assisted the Board by taking the lead in questioning some of those witnesses, not all of them. Some of the witnesses were questioned directly by members of the Board.” (Emphasis added.)

Accepting the characterization of the administrative proceeding given in the circuit court by the attorney for the Board (and we concede that the Board participated in the questioning of witnesses to an unusual degree), and recognizing that no pleading at the Board was required other than the bare claim filed by the plaintiff, it would be unfair to say now that the plaintiff had waived the right to argue in the circuit court that the evidence established the aggravation of a preexisting condition.

The rule that matters not raised in the trial court may not be raised for the first time in a court of review is a limitation on the parties and not on the court, which has the responsibility of reaching a just decision. (In re Marriage of Bennett (1985), 131 Ill. App. 3d 1050, 476 N.E.2d 1297.) There is no reason that the same limitation of the rule should not apply in cases before a circuit judge on administrative review.

Moreover, we are not convinced that the question was not adequately presented before the Board. In his summation, the attorney for the plaintiff discussed the testimony of Dr. Spencer as follows:

“He could not tell you specifically what caused that degeneration. He said it could be caused by genetics. But then he testified that in Mr. Kellan’s case he doesn’t know what caused it. He certainly doesn’t know if it’s genetics. He testified to that. He did testify that the trauma that he sustained in the course of those injuries and those accidents certainly were contributing factors to his current back problem. He wouldn’t testify that they were the sole cause, the only cause, but he did testify that after being aware of the number of incidents that in fact they could significantly contribute to the degenerative situation that his spine was in.” (Emphasis added.)

In substance, the plaintiff’s attorney argued that the plaintiff need not prove that the injuries he received on duty were the sole cause of his back problem; that it was sufficient to show that the injuries contributed to the problem. We see no reasonable distinction between an argument that an act contributed to one’s condition and an argument that the act aggravated a preexisting condition. The argument of the plaintiff’s attorney was a correct statement of the law. (Republic Steel Corp. v. Industrial Comm’n (1962), 26 Ill. 2d 32, 185 N.E.2d 877.) That argument was expressly rejected by Edelmann in the deliberations and improperly so. For these reasons, we judge that the issue was properly before the circuit judge and he properly based his decision on the ground that the evidence established aggravation of a preexisting condition.

Even if we were to assume that the question had not been properly preserved, we would affirm the judge on the additional ground that the decision of the Board was against the manifest weight of the evidence. It would serve no purpose to repeat all the medical testimony. It is enough to say that Dr. Spencer’s testimony did not contradict the testimony of the other doctors to the extent that a material question of fact existed. The defendant’s attorney made the somewhat surprising statement in oral argument in this court that the Board disregarded Dr. Spencer’s cross-examination testimony and relied on his direct examination testimony. We do not agree that they had the right to disregard testimony that supported the plaintiff’s position.

There is one other aspect of the defendant’s argument, however, which should be addressed. Throughout its argument in the circuit court and in this court runs a common theme: The plaintiff lied about his injuries, and the Board did not believe him. The record does not support either aspect of that argument. Over objection by his attorney, the plaintiff was required to give his opinion as to the cause of the herniated disks. (The plaintiff’s attorney correctly argued that the plaintiff was not qualified to give such an opinion.) The plaintiff particularly was required to give his opinion as to whether the incident of September 16, when he rose from the chair, caused the herniated disk. He said that in his opinion it did. The defendant’s attorney now takes the position that the Board’s rejection of the plaintiff’s expressions of opinion shows that the Board concluded that he lied. This is not only an unfair argument, but it is not borne out by the record. There is nothing in the deliberations of the Board from which a conclusion could be drawn that the Board felt that the plaintiff had not told the truth. At one point in the deliberations one of the trustees pointed out that the plaintiff’s lawyer said that the plaintiff “does not know what caused the herniated disks.” Another trustee said that he would like to award the plaintiff the extra money because he was sure “in many other ways [the plaintiff] may have deserved it.” That trustee also said that he had the “greatest admiration of the testimony of everybody involved.” Whether that remark was directed to the testimony of only the doctors, we cannot tell. But it indicates an opportunity was presented to the Board to express an opinion of the credibility of any other witness; it did not do so. A reading of the entire transcript of the deliberations leads to no other conclusion but that the Board decided the case under a misunderstanding of the proper principle of law.

For all these reasons, the judgment of the circuit court is affirmed.

Judgment affirmed.

LaPORTA, P.J., and McNAMARA, J., concur.


source: Caselaw Access Project

author: JUSTICE McNAMARA

license: Public Domain

text:
    TED THEODORAKAKIS, d/b/a Father and Son New and Used Equipment, Plaintiff-Appellant, v. ANTHONY KOGUT, Special Adm’r of the Estate of Pablo Garcia, Deceased, et al., Defendants-Appellees.
    First District (6th Division)
    No. 1—89—0689
    Opinion filed February 9, 1990.

      Marshall D. Segal, of Segal & Segal, of Chicago, for appellant.
    Ansani & Ansani, of Park Ridge (Theodore J. Ansani, of counsel), for appellees.
   JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiff, Ted Theodorakakis, d/b/a Father and Son New and Used Equipment, appeals from the decision of the circuit court of Cook County vacating the default judgment against defendant, Maywood Proviso State Bank u/t/a No. 4289. The court found that the summons served upon the bank was invalid and, accordingly, that judgment was void ab initio. Plaintiff alleges that the trial court erred in finding that the summons served upon the bank was invalid and in vacating the judgment because, although the summons incorrectly stated that the trust number was 44289, the complaint caption and body thereof correctly designated the trust number as 4289. Plaintiff concludes that a misnomer occurred and that judgment was properly entered against the bank.

On March 19, 1987, plaintiff filed a complaint for mechanic’s lien against Anthony Kogut, special administrator of the estate of Pablo Garcia, deceased, and Maywood Proviso State Bank u/t/a No. 4289 and Gisela Malawy, Marshall D. Segal, administrator with the will annexed of the estate of Pablo Garcia, deceased. (This appeal involves only Maywood Proviso State Bank u/t/a No. 4289.) That same day, a summons issued reflecting two defendants to be served. One of the defendants was set forth as “MAYWOOD PROVISO STATE BANK U/T/A #44289, 411 Madison, Maywood, IL.” The summons was served upon trust number 44289 at the bank on March 27, 1987.

On September 17, 1987, plaintiff filed a notice of motion for the entry of a default judgment. The notice was directed and mailed to the bank, trust number 4289. Also on September 17, 1987, plaintiff filed a notice of motion to nonsuit count II of the complaint and mailed the notice to the bank, trust number 4289. The trial court entered a default against the bank on count I and set a prove up date. Count II was nonsuited with leave to reinstate. After several continuances, prove up was made and default judgment entered on April 29, 1988.

On December 6, 1988, the bank filed a notice of motion to vacate the April 1988 judgment. The motion to vacate was brought pursuant to section 2 — 1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1401). On February 10, 1989, the trial court entered an order vacating the judgment. Pursuant to Supreme Court Rule 304(b)(3), plaintiff appeals the entry of that order. 107 Ill. 2d R. 304(b)(3).

Plaintiff contends that the trial court erred in finding that the summons served upon the Maywood Proviso State Bank u/t/a No. 44289 was invalid. He urges that because of this error, the order vacating the judgment was improperly entered.

Illinois Supreme Court rules provide that a summons is to be directed to each defendant (107 Ill. 2d R. 101(a)), and that in all entitling papers except a summons it is sufficient to name the first named plaintiff and the first named defendant with the usual indication of other parties. (107 Ill. 2d R. 131(c).) The rules further provide that the use of the wrong form of summons will not affect the jurisdiction of the court. (107 Ill. 2d R. 101(e).) Nonetheless, a summons which does not name a party on its face and notify that party to appear is no summons at all insofar as the unnamed person is concerned. (Ohio-Millers Mutual Insurance Co. v. Inter-Insurance Exchange of the Illinois Automobile Club (1937), 367 Ill. 44, 10 N.E.2d 393.) When a defendant is not properly served, any order entered against that defendant is void ab initio regardless of whether he had knowledge of the proceedings. Hatcher v. Anders (1983), 117 Ill. App. 3d 236, 453 N.E.2d 74.

Here, the summons named trust number 44289 while the proper trust number was 4289. The trial court found that the summons did not “bear the name of the defendant Trust,” and that, accordingly, the summons was invalid. We agree with that decision. The summons named a non-existent trust account. Thus, the summons did not name a legal entity upon which service could be had. The bank as trustee properly concluded that it need not, and indeed could not, respond.

Plaintiff argues, however, that the fact that the complaint was attached to the summons and designated the correct trust number should militate against a finding of invalidity. Plaintiff points to the fact that the bank was served with the summons and complaint.

It is true that the names by which persons are summoned can be immaterial, the essential question being whether the party in interest was actually served. (Alexander v. State Savings Bank & Trust Co. (1935) 281 Ill. App. 88.) That is, in cases in which the proper party is served but by the wrong name, if the party served failed to appear, or appearing, fails to object, the judgment against it will be binding. Ohio Millers Mutual Insurance Co. v. Inter-Insurance Exchange of the Illinois Automobile Club, 367 Ill. 44, 10 N.E.2d 393; Thielke v. Osman Construction Corp. (1985), 129 Ill. App. 3d 948, 473 N.E.2d 574; Hatcher v. Kentner (1983), 120 Ill. App. 3d 571, 458 N.E.2d 131.

Here, however, defendant, a particular land trust, was not actually served. The summons was delivered to a trust account number which does not exist. A suit brought against a legally nonexistent party is void ab initio, and the summons served upon the nonexistent party does not give the court jurisdiction. (Lewis v. West Side Trust & Savings Bank (1941), 377 Ill. 384, 36 N.E.2d 573.) A proceeding by or against a party by a mere fictitious name is a nullity (Ohio Millers Mutual Insurance Co. v. Inter-Insurance Exchange of the Illinois Automobile Club, 367 Ill. 44, 10 N.E.2d 393), and absent a general appearance by a named party, personal jurisdiction may only be acquired by service of process in the manner directed by statute. (State Bank v. Thill (1986), 113 Ill. 2d 294, 497 N.E.2d 1156; Kappel v. Errera (1987), 164 Ill. App. 3d 673, 518 N.E.2d 226.) Any judgment rendered without service of process in the manner directed by statute is void regardless of whether the defendant had actual knowledge of the proceedings. State Bank v. Thill, 113 Ill. 2d 294, 497 N.E.2d 1156.

In the present case, service of process was not had in the manner directed by statute. Plaintiff named an incorrect trust number and, therefore, failed to properly serve the defendant trust account. The fact that the complaint contained the proper trust account is not relevant when the summons is not directed to the proper party and when the proper party is not in fact served. We find that the trial court properly vacated the default judgment entered against the bank as trustee.

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

Judgment affirmed.

LaPORTA, P.J., and EGAN, J., concur.


author: PRESIDING JUSTICE LaPORTA

text:
    FLOYD D. PERKINS et al., Plaintiffs-Appellants, v. MARIA L. GARCIA et al., Defendants-Appellees.
    First District (6th Division)
    No. 1—89—1767
    Opinion filed February 9, 1990.

      Floyd D. Perkins and John F. Eichler, both of Chicago, for appellants.
    Brian M. Collins, of Magee, Collins & Lodge, of Chicago, for appellees.
   PRESIDING JUSTICE LaPORTA

delivered the opinion of the court:

This action was brought by plaintiffs, Floyd D. Perkins and Lawrence Dakof, seeking specific performance and damages under a real estate sales contract between plaintiffs and defendant, Maria L. Garcia. The circuit court granted summary judgment in favor of defendant on count I of the amended complaint, which requested specific performance of the real estate sales contract. Plaintiffs appeal the denial of specific performance of the contract. Only plaintiffs and defendant Garcia are parties to this appeal.

Plaintiffs filed a six-count complaint against defendant, the seller under the real estate sales contract, and codefendants, the real estate brokers with whom the property had been listed. Counts I, II, and III of the complaint were directed against defendant. In count I, plaintiffs requested specific performance of the sales contract. In counts II and III, plaintiffs sought damages for breach of contract and for fraud.

Plaintiffs and defendant filed cross-motions for summary judgment, supported by affidavits and excerpts from the transcript of the deposition of defendant. The affidavits and deposition transcript before the trial court established that the subject property, located at 1540 West Wrightwood in Chicago, Illinois, was owned by defendant and Gaspar Gomez in joint tenancy. On January 14, 1986, defendant listed the subject property with the codefendants real estate brokers. The sale price of the property on the listing was $71,900. Defendant was the only signatory to the listing agreement.

On February 9, 1986, plaintiffs submitted an offer to purchase the property for $66,000. Thereafter, defendant accepted the plaintiffs’ offer by signing her name and that of Gaspar Gomez, without his authority, to the sales contract. Codefendants then advised plaintiffs that defendant had signed the contract and accepted plaintiffs’ $5,000 in earnest money. Plaintiffs subsequently relinquished their apartment lease, sought financing for the purchase of the property, and retained an architect to develop plans for remodeling.

After defendant had signed the contract submitted by plaintiffs, she learned that the property was worth more than the contract price and that comparable properties in the neighborhood were selling for substantially more money. Near the end of February 1986, defendant informed plaintiffs that she did not wish to complete the sale of the property as agreed because the price was too low. Defendant also advised plaintiffs that she had signed Gomez’s name to the contract without his authority or agreement to sell the property. Gomez, who did not reside on the property, had not authorized or agreed with defendant to list the property for sale in January 1986.

Plaintiffs’ motion for summary judgment requested that the court enter an order for specific performance under the real estate sales contract, compelling defendant to convey to them her undivided one-half interest in the property with an abatement in the purchase price of $33,000. Plaintiffs’ motion also sought entry of an order awarding compensatory and punitive damages and attorney fees based upon defendant’s alleged breach of contract and fraud. Defendant’s motion for summary judgment requested that the court enter an order denying specific performance under the contract based upon Gomez’s refusal to agree to the sale and denying damages based upon fraud.

After a hearing on the parties’ motions for summary judgment, the trial court denied plaintiffs’ motion as to counts II and III of the amended complaint, finding that genuine issues of material fact existed as to defendant’s alleged breach of contract and fraud. Although the trial judge did not enter a finding as to whether there was a valid and enforceable contract between plaintiffs and defendant, he denied plaintiffs’ motion and granted defendant’s motion as to count I. The trial court determined that a grant of specific performance would affect the interests of Gomez, who had not signed the contract and had not consented to the sale or listing of the property.

The only issue before this court is whether the trial court erred in granting summary judgment in favor of defendant on count I, which sought specific performance under the real estate contract.

Initially, it must be noted that specific performance may only be granted where there is a valid and enforceable contract. (Chicago Investment Corp. v. Dolins (1981), 93 Ill. App. 3d 971, 418 N.E.2d 59.) Questions of contractual validity or interpretation are matters of law for the court to decide. (Northern Illinois Construction Co. v. Zale (1985), 136 Ill. App. 3d 822, 824, 483 N.E.2d 1013, 1015.) Defendant argues that summary judgment denying specific performance was proper because there was a dispute between the parties as to whether the contract was valid and enforceable. As the trial court indicated, the contract was not binding on Gomez because he never signed it or agreed to its terms. (See Spadoni v. Frigo (1923), 307 Ill. 32, 138 N.E. 226; Wiggins v. Morgan (1977), 55 Ill. App. 3d 198, 371 N.E.2d 127.) Defendant, however, did sign the contract and stated in her affidavit that she did so because she believed that this was the best bargain she could strike. Defendant also signed Gomez’s name, without his authority, to the contract because she wanted to sell the property and because she believed plaintiffs would withdraw their offer if it was not accepted quickly. Plaintiffs assert that defendant cannot now claim that, by virtue of her signing of Gomez’s signature, there was no valid contract. See generally Yale Development Co. v. Oak Park Trust & Savings Bank (1975), 26 Ill. App. 3d 1015, 325 N.E.2d 418.

The adverse effect of specific performance on third persons is an appropriate factor to be considered by the court in determining whether the discretionary relief of specific performance is to be granted. (See generally White v. Lang (1948), 401 Ill. 219, 81 N.E.2d 897; Spadoni, 307 Ill. 32, 138 N.E.2d 226.) The decision of whether to grant specific performance is a matter of sound judicial discretion controlled by established principles of equity, and that determination will not be disturbed absent an abuse of discretion. (Chariot Holdings, Ltd. v. Eastmet Corp. (1987), 153 III. App. 3d 50, 56, 505 N.E.2d 1076, 1081; Thread & Gage Co. v. Kucinski (1983), 116 Ill. App. 3d 178, 185, 451 N.E.2d 1292, 1297.) Thus, although a court of equity-may, at the option of the purchasers, order specific performance of a contract to convey property so far as the vendor is able to perform, with an abatement in the purchase price (Schiro v. W.E. Gould & Co. (1960), 18 Ill. 2d 538, 165 N.E.2d 286; Ennis v. Johnson (1954), 3 Ill. 2d 383, 121 N.E.2d 480; Grill v. Adams (1984), 123 Ill. App. 3d 913, 463 N.E.2d 896), the court must also take into consideration the facts and circumstances of each individual case and must balance the equities between the parties (Giannini v. First National Bank (1985), 136 Ill. App. 3d 971, 483 N.E.2d 924).

Because the trial court had not determined whether the contract was valid and enforceable against defendant, we find that the entry of summary judgment denying specific performance was premature.

Summary judgment is proper only where the pleadings, depositions, admissions, and affidavits demonstrate that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1005.) In the absence of a determination as to whether the contract was valid and .enforceable against her, we find that defendant had not established that she was entitled to judgment as a matter of law, and the entry of summary judgment in her favor was premature.

For the foregoing reasons, the judgment of the circuit court of Cook County is reversed, and the cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

McNAMARA and RAKOWSKI, JJ., concur.


author: JUSTICE O’CONNOR

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MACK LEE, Defendant-Appellant.
    First District (1st Division)
    No. 1—87—1266
    Opinion filed February 13, 1990.

      Randolph N. Stone, Public Defender, of Chicago (Donald S. Honchell, Assistant Public Defender, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, William D. Carroll, and Kathleen T. Kavanagh, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Defendant Mack Lee was charged with attempted armed robbery (Ill. Rev. Stat. 1983, ch. 38, par. 8 — 4(a)) and murder (Ill. Rev. Stat. 1983, ch. 38, par. 9 — 1). A jury found Lee guilty of attempted armed robbery, but could not reach a verdict on the murder charge. A mistrial was declared on the murder charge, and after a second trial, Lee was convicted of murder and sentenced to 80 years’ imprisonment. For the reasons below, we affirm.

In the early morning of April 16, 1984, Gary Stevens was murdered in his apartment at 4755 N. Leavitt Avenue in Chicago, which he shared with Edward Aksomitis. Around midnight, Aksomitis let in Charles Holtz and the defendant, Mack Lee. Aksomitis had known Holtz for about two weeks, but did not know Lee. Lee and Holtz went into Stevens’ bedroom, and Aksomitis went into the living room, where he fell asleep in front of the TV. Aksomitis did not wake up until some time later, when he heard a commotion at the apartment door. He saw Holtz and Lee struggling with two other men.

While Aksomitis had been asleep, Tom Hankes and Michael Fin-neran had arrived. They were met by Holtz, who was upset and said that Stevens was being hurt. Finneran looked into the bedroom and saw Lee and Stevens on the bathroom floor. Lee was on top, holding Stevens by the throat with one hand, wielding a butcher knife in the other hand. There was blood on the floors of the bedroom and bathroom, but Finneran did not see Lee stab Stevens. Finneran ran to the stairwell outside the apartment where Hankes was waiting. The apartment door shut behind them, and Hankes pounded on it.

Moments later, Holtz and Lee bolted from the apartment. Fin-neran and Hankes tried to stop them, but could not. Holtz and Lee ran down the stairs. Finneran and Hankes reentered the apartment and saw Stevens lying on the floor. Finneran told Hankes to call the police, then went after Holtz and Lee.

The first police officer to arrive at the apartment was Jack O’Ha-nion. O’Hanion saw Stevens on the floor, and the blood and butcher knife. O’Hanion called for his supervisor and paramedics. Stevens was taken to Ravenswood Hospital, where he arrived with no blood pressure or pulse. He was given transfusions, but died. An autopsy revealed that Stevens had died from a stab wound to the chest that penetrated the right lung, liver, and pancreas. Forensic tests later revealed that the blood in the apartment and on the butcher knife was type A, the same as Stevens’ blood, and that Lee’s blood was type B. At the time of his arrest, Lee’s clothing had splashes of both types of blood.

After calling the police, Hankes joined Finneran to chase Holtz and Lee. They caught up with Lee on a CTA train platform, where there were two policemen. Finneran, who did not know Lee, identified Lee to the officers by describing his clothing. Lee was arrested by Officer James Clark and taken to the police station. At the police station, Lee talked to Detectives Edward Day and Frederick Stone. After the interview, an assistant State’s Attorney was summoned, and Lee made a formal statement.

Lee told the detectives that he had met Holtz on a bus earlier in the evening, and Holtz had told him of a plan to rob some people who lived on Lawrence Avenue. Lee agreed to go along and “knock off” the people and take whatever was valuable. They then went to the apartment of Aksomitis and Stevens. They went into the bedroom and sat down on the bed. Holtz then left and returned with a butcher knife, which he passed to Lee. Holtz then urged Lee to use the knife on Stevens. Holtz grabbed Stevens, and Lee stabbed him. Lee was in the act of tying up Stevens when two others entered the apartment. Lee and Holtz fled. He was later arrested at the CTA station.

Lee and Holtz were charged with murder, armed violence, and attempted armed robbery. Holtz pleaded guilty and did not face trial. Lee was found competent to stand trial after a hearing and was tried on the charges of attempted armed robbery and murder. Before the trial began, defense counsel moved to quash and suppress evidence resulting from Lee’s arrest, and to suppress his statement to police. Both motions were denied and are not appealed.

The evidence produced at trial established the events above. The jury returned a verdict of guilty on the attempt charge, but could not reach a verdict on the murder charge. A mistrial was declared on the murder charge, and Lee was given a second trial.

Before the second trial, the trial court gave Lee the opportunity to plead guilty and receive a sentence of 42 years, which had been recommended in a presentencing hearing. Lee declined. The second trial produced the same evidence as the first, including two vials of blood samples. The jury requested the blood samples during deliberation, and the trial court granted the request over defense counsel’s objection. The jury returned a guilty verdict, and the trial court sentenced Lee to 80 years’ imprisonment, with a concurrent 10-year sentence for attempted armed robbery. The trial court denied a motion to reduce the sentence to 42 years. Lee appeals.

Lee first argues that the State failed to establish the specific intent necessary to prove attempted armed robbery. Lee contends that his statement to police, in which he stated that he and Holtz went to Stevens’ apartment for the purpose of robbing the occupants, could not, by itself, establish specific intent. But the surrounding circumstances corroborate Lee’s statement. (See People v. Willingham (1982), 89 Ill. 2d 352, 432 N.E.2d 861.) The evidence shows that Lee engaged in a substantial act in furtherance of the robbery plan. Lee stated that he and Holtz planned to rob and kill someone that Holtz knew. Lee and Holtz then went to the apartment and together attacked Stevens. Lee’s statement, corroborated by the surrounding circumstances of the crime, established specific intent.

Lee next argues that the trial court erred by granting, over defense counsel’s objection, the jury’s request to examine the vials of blood during deliberation. Lee contends that giving the vials to the jury over defense counsel’s objection fed the jury’s “ghoulish interest” and raised its passions. The vials contained samples that were tested to show that Lee and Stevens had different blood types. But the blood samples were not admitted to show that a crime had occurred, nor were they critical to identify Lee as Stevens’ killer, or to place Lee at the scene. Moreover, the differences in the samples could not have been discerned by the jury and therefore could not have aided the jury in reaching a verdict. Because the samples could not have aided the jury, the trial court erred in allowing the jury to consider them.

But Lee was not substantially prejudiced by the error, given overwhelming evidence of guilt. Absent the testimony that Lee’s and Stevens’ blood types differed one from the other, both Aksomitis and Finneran placed Lee at the apartment at the time Stevens was killed. Finneran saw Lee struggling with Stevens, one hand on Stevens’ throat, the other holding the butcher knife used to kill Stevens. Further, Lee confessed that he had stabbed Stevens at least once, and the autopsy showed that Stevens had been stabbed once. Given the evidence, it is doubtful that a jury reasonably could have doubted that Lee murdered Stevens. Although the trial court should not have sent the vials of blood to the jury, the error was harmless beyond reasonable doubt. See People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124, cert. denied (1988), 488 U.S. 917, 102 L. Ed. 2d 263, 109 S. Ct. 274.

Lee next argues that the trial court failed properly to educate the jury concerning the presumption of Lee’s innocence and right not to testify, and the State’s burden of proof. Lee concedes that the trial court discussed these principles with the panel from which the jury was selected, but contends that the failure to question each juror as to his or her understanding of the principles was reversible error, citing People v. Zehr (1984), 103 Ill. 2d 472, 469 N.E.2d 1062. It is well settled that instructions by the court during voir dire substantially comply with Zehr. (E.g., People v. Cole (1988), 168 Ill. App. 3d 172, 522 N.E.2d 635, appeal denied (1988), 119 Ill. 2d 562; People v. Williams (1987), 159 Ill. App. 3d 527, 512 N.E.2d 35; People v. Boswell (1985), 132 Ill. App. 3d 52, 476 N.E.2d 1154, rev’d on other grounds (1986), 111 Ill. 2d 571, 488 N.E.2d 273.) To require the court to question each individual juror would therefore be an unwarranted extension of Zehr. The trial court’s remarks during voir dire were further reinforced when the jury was instructed according to Illinois Pattern Jury Instructions, Criminal, Nos. 2.03 and 2.04 (2d ed. 1981), which address the presumption of innocence, the State’s burden to prove quilt beyond reasonable doubt, and the defendant’s right not to testify. Lee further contends that the failure to assure that the jury was questioned amounted to ineffectiveness of counsel, but if the trial court was not required to question the jurors, such failure would not constitute ineffectiveness of counsel. The record shows that the jury was properly educated.

Lee finally argues that his sentence of 80 years was improper, because a sentence of 42 years had been recommended after a presen-tence hearing after his first trial. The trial court imposed a sentence within statutory limits (see Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 8— 1(a)(1)), which will not be disturbed absent an abuse of discretion. (People v. Johnson (1986), 148 Ill. App. 3d 163, 504 N.E.2d 502. See also People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882; People v. Griffin (1988), 175 Ill. App. 3d 111, 529 N.E.2d 727.) The trial court was not constrained to follow the sentencing recommendation and specifically stated that the sentence was imposed based on the premeditation and cold-bloodedness of the killing, observations supported by the record. There was no abuse of discretion.

In summary, all of Lee’s arguments are without merit. First, Lee’s statement to police was corroborated by the surrounding circumstances of the crime and sufficient to prove the specific intent required to establish an attempted armed robbery. Second, although the trial court should not have allowed the jury to examine the vials of blood, any error was harmless, given the independent and overwhelming evidence of guilt. Third, the record shows that the jury was properly educated concerning the presumption of Lee’s innocence and right not to testify, and the State’s burden of proof. Finally, the trial court imposed a sentence within statutory limits, which in the absence of any abuse of discretion, should not be disturbed. Accordingly, Lee’s conviction and sentence are affirmed.

Affirmed.

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


author: JUSTICE CAMPBELL

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHARLES TIGNER, Defendant-Appellant.
    First District (1st Division)
    No. 1—87—3908
    Opinion filed February 13, 1990.

      Randolph N. Stone, Public Defender, of Chicago (Mark H. Kusatzky, Assistant Public Defender, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, Kenneth T. McCurry, and Matthew Mahoney, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE CAMPBELL

delivered the opinion of the court:

After a bench trial in the circuit court of Cook County, defendant was convicted of criminal sexual assault and robbery. (Ill. Rev. Stat. 1985, ch. 38, pars. 12 — 13(a)(1), 18 — 1(a).) He was sentenced to a term of 15 years’ imprisonment for the criminal sexual assault conviction and a consecutive term of four years’ imprisonment for the robbery conviction. Defendant appeals,. contending that he was not proven guilty beyond a reasonable doubt. In the alternative defendant contends that he should be resentenced because his sentencing hearing was unfair and improper in that the trial court heard and considered improper evidence in aggravation and because he was improperly sentenced to extended term and consecutive sentences.

The complaining witness, M.M., age 23, testified that she left her apartment to go shopping about 11 a.m. on January 2, 1986. She took a bus to the intersection of Milwaukee and Division in Chicago, walked to a store where she made a purchase and then walked back to the bus stop to wait for the bus.

As complainant waited for the bus, she was approached by a man later identified as defendant. He asked her name and then asked if she wanted to “get high.” After she responded in the negative, he asked her to go with him. When she again refused, he walked over to her, told her that he had a gun and partially exposed an object from his right jacket pocket which complainant thought was the grip of a gun. Because defendant also threatened to kill her if she did not do as he told her, she accompanied defendant and walked down the street with him arm in arm, as he instructed her to do.

They continued to walk together for about one mile until they arrived at an abandoned building. Defendant then instructed complainant to enter this building and go into the basement. Complainant cried and begged him to let her go, but he told her he would kill her if she refused. She then entered the basement of the building, where she found some old furniture and a bed. Defendant told her to pull down her slacks and panties and remove one leg. He then instructed her to sit on the edge of the bed. Defendant then knelt down on the floor between her legs. He kept his right hand inside the jacket pocket, where he had the gun he had shown her. He then licked her vagina for several minutes. After this he unzipped the front of his pants, removed his penis and placed it inside her vagina. After about five minutes complainant felt “something wet,” and she believed defendant ejaculated. Defendant then got up and zipped up his pants.

When defendant had finished, he instructed complainant to remove her pants and panties and he asked her for money. She told him that she had none, and he responded that she was lying. He then searched her pants pockets and, finding nothing, instructed her to remove her boots and her socks. When he still did not find any money, he told her to empty her coat pockets. These, too, were empty so he told her to unfasten her coat and her blouse. He placed his hand inside her bra in search of money. When the money that was hidden there fell out, he took the money, except for one dollar, which he left for her bus fare. He then hid her clothing and told her to count to 20 before she started searching for her clothes. Defendant then left the building.

Complainant found all of her clothing' except her panties. She dressed, left the building, and went to a nearby store where she called the police to report what had happened. After the police arrived and spoke with her, they returned with her to the abandoned building so that she could identify the building and the basement area where she had been taken. Complainant was then taken to the hospital, where she was examined. In court complainant identified some photographs which were taken by the police depicting the abandoned building and the basement area within.

Complainant further testified that on November 19, 1986, she was shopping with friends on Milwaukee Avenue near Wolcott. As she was walking in this area, she heard a man yell, “Hey slim, want to get high?” Complainant turned and recognized defendant. She then quickly turned her head and immediately entered a store, where she asked to use the telephone. The store clerk refused to allow her to use the telephone but directed her to a nearby public telephone. Complainant left the store after she waited for defendant to pass by the area and walked toward the public telephone. Just then she saw a police car and flagged down the officers. She informed the police that she had been raped in January of that year and then pointed out defendant as the man who had been her attacker. The officers approached defendant and arrested him. When defendant was inside the police car, complainant positively identified defendant as the man who had attacked her in January.

It was later stipulated that complainant was examined at the hospital by Nurse Kathleen Shanahan and Dr. Gonzales and that samples were taken for a Vitullo Kit. It was also stipulated that Christine Anderson of the Chicago police crime lab received these samples through a proper chain of custody and that she would testify that the samples tested positive for the presence of sperm. Finally, Officer Vincent Mancini testified in corroboration of complainant’s testimony that about 2 p.m. on November 19, 1986, he was flagged down while on routine patrol in the area of 1400 North Milwaukee Avenue in Chicago and that as a result of the information provided to him by complainant, defendant was arrested.

Defendant presented the testimony of Ed Matthews, an investigator for the public defender’s office. He testified that on August 3, 1987, he and another investigator, along with defense counsel, went to 630 West Evergreen Street to interview the complainant. After they identified themselves, she agreed to talk with them. She then told them that defendant had approached her as she waited for a bus at the bus stop and that defendant told her that he had a gun but that she only saw what appeared to be the handle of a gun. They then walked arm in arm for several blocks until they reached an abandoned building. Inside this building defendant told her to take down her pants. Matthews testified that complainant then indicated that defendant performed oral sex but did not have intercourse because he could not get an erection. After this defendant told her to count to 20 and then left the building.

After hearing argument the trial court found defendant guilty of criminal sexual assault based on contact between defendant’s mouth and the victim’s vagina. The court found defendant not guilty of all other charges, including the counts alleging aggravated criminal sexual assault, aggravated kidnapping and aggravated unlawful restraint, having found that there was no proof beyond a reasonable doubt that defendant had carried a gun. The trial court also found defendant not guilty of armed robbery for this reason, but found defendant guilty of the lesser-included offense of robbery.

At the subsequent sentencing hearing the trial court ruled admissible, over defendant’s objection, the testimony of six witnesses. Three of these witnesses were Chicago police officers who testified regarding the circumstances surrounding four of defendant’s prior arrests for solicitation. One witness, Stephanie Barnett, was defendant’s ex-girlfriend, who testified concerning the circumstances leading up to defendant’s arrest for indecent liberties with a child, a charge to which defendant later pleaded guilty. Barnett also testified regarding defendant’s violation of the condition of his probation that he not have contact with her or her children. Specifically, she testified that she called the police to have defendant arrested on September 29, 1984, and on December 25, 1984, when he entered her residence without her permission. On both occasions defendant and Barnett engaged in physical altercations which resulted in injury to Barnett.

Finally, two other Chicago police officers testified that when they responded to Barnett’s residence they attempted to arrest defendant, that defendant resisted arrest and tried to escape and that defendant fought with the officers. Furthermore, on December 25, 1984, when defendant resisted arrest, he caused physical injury to several police officers.

Certified copies of defendant’s prior convictions for indecent liberties and battery were admitted along with the presentence investigation report. No evidence in mitigation was offered. The trial court then found defendant eligible for an extended term and consecutive sentences and sentenced defendant to a term of 15 years for the criminal sexual assault conviction and a term of four years for the robbery conviction, to be served consecutively.

The first issue on appeal is whether the complaining witness’ testimony was sufficient to have proven defendant guilty of the offenses for which he was convicted beyond a reasonable doubt. Defendant contends that his acquittal on the counts charging him with aggravated criminal sexual assault, aggravated kidnapping, aggravated unlawful restraint, and criminal sexual assault based on penile penetration indicated that the complaining witness was not credible and, therefore, he should have been acquitted of all charges. We cannot agree.

The trial court explicitly found the complaining witness to be credible. It is the duty of the trier of fact to assess the credibility of the witnesses, weigh the evidence and resolve any conflicts in the testimony. (People v. Akis (1976), 63 Ill. 2d 296, 347 N.E.2d 733.) Having had the opportunity to view the witnesses, the trial court is in a much better position to make the credibility assessment, and the trial court’s decision will not be disturbed unless the evidence is so palpably improbable or unsatisfactory that a reasonable doubt as to defendant’s guilt exists. People v. Ellis (1978), 74 Ill. 2d 489, 384 N.E.2d 331.

In the present case the complaining witness testified clearly and convincingly regarding her encounter with defendant and the subsequent sexual assault. The complaining witness also candidly admitted that she never saw the gun that defendant indicated that he was carrying, but that she saw a handle of what she believed to be a gun. The evidence presented by defendant did not impeach the complaining witness regarding these matters, but rather, corroborated much of her testimony. The testimony admitted by defendant raised a conflict only on the issue of penile penetration. The mere fact that the trial court resolved this conflict in favor of defendant does not, in our mind, diminish the credibility of the complaining witness. Nor does the fact that the trial court chose to give defendant the benefit of the doubt on the issue of the presence of a weapon in any way affect our assessment of the sufficiency of the evidence supporting defendant’s conviction for criminal sexual assault and robbery. Because we agree with the trial court that the complaining witness was credible and that her testimony was clear and convincing, her testimony was sufficient to support defendant’s convictions beyond a reasonable doubt and so we affirm. People v. Johnson (1987), 161 Ill. App. 3d 551, 515 N.E.2d 137.

Having affirméd defendant’s convictions, we must address defendant’s second issue and determine whether his sentencing hearing was conducted properly and whether an extended term and consecutive sentences were properly imposed. The first question is whether defendant received a fair sentencing hearing. Defendant challenges the admission of the testimony of five witnesses because they testified to “mere arrests” as opposed to convictions. Defendant also contends that this testimony was unreliable because it “painted a distorted picture” of him as a sexual pervert.

It has long been held that a sentencing judge will be given wide latitude in his discretionary determination of the types and sources of evidence that may be admitted to assist him in determining the kind and extent of punishment to be imposed within the statutory limits. (People v. Foster (1987), 119 Ill. 2d 69, 96, 518 N.E.2d 82; People v. Adkins (1968), 41 Ill. 2d 297, 300, 242 N.E.2d 258.) The only requirement for admission is that the evidence be reliable and relevant, and this is a decision left to the discretion of the sentencing court. (People v. Lyles (1985), 106 Ill. 2d 373, 414, 478 N.E.2d 291.) Evidence of other crimes with which defendant has been charged but not convicted is admissible, especially when the testimony concerning such criminal activity or misconduct is trustworthy and subject to cross-examination. (People v. Johnson (1989), 128 Ill. 2d 253, 284, 538 N.E.2d 1118; People v. Sanchez (1986), 115 Ill. 2d 238, 503 N.E.2d 277; People v. La Pointe (1981), 88 Ill. 2d 482, 498-99, 431 N.E.2d 344.) The relaxation of the formal rules of evidence at the sentencing stage is intended to provide the sentencing judge with a wide range of information concerning the defendant’s life, character, criminal history and propensity to continue to commit other offenses. (People v. Johnson (1989), 128 Ill. 2d 253, 538 N.E.2d 1118; People v. Sanchez (1986), 115 Ill. 2d 238, 503 N.E.2d 277.) Even hearsay evidence is not per se inadmissible at a sentencing hearing. (People v. Foster (1987), 119 Ill. 2d 69, 98, 518 N.E.2d 82; People v. Hall (1986), 114 Ill. 2d 376, 417, 499 N.E.2d 1335; People v. Perez (1985), 108 Ill. 2d 70, 86-87, 483 N.E.2d 250.) A hearsay objection will go to the weight and not the admissibility. (People v. Foster, 119 Ill. 2d at 98.) Double hearsay, however, should be corroborated, at least in part, by other evidence. People v. Foster, 119 Ill. 2d at 98.

In the present case the evidence of other criminal misconduct which did not result in conviction was properly admitted. The arresting officers testified and were subject to cross-examination. The evidence was trustworthy and provided some insight into defendant’s life, character and criminal propensities. As such it was relevant and reliable and, thus, properly admitted and considered by the sentencing judge.

The testimony of Barnett concerning her daughter’s statements to her about defendant’s sexual misconduct, although hearsay, was corroborated in part by the certified copy of defendant’s conviction for the offense of indecent liberties with a child. There was no error in its admission. In conclusion, defendant received a fair sentencing hearing at which proper evidence in aggravation was received.

We now consider whether defendant was eligible for an extended-term sentence and consecutive sentences as the trial court held. At the time of defendant’s sentencing in December 1987, the statute provided:

“[T]he following factors may be considered by the court as reasons to impose an extended term sentence under Section 5 — 8—2 upon any offender who was at least 17 years old on the date the crime was committed:
(1) When a defendant is convicted of any felony, after having been previously convicted in Illinois of the same or greater class felony, within 10 years, excluding time spent in custody, and such charges are separately brought and tried and arise out of different series of acts.” Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 5—3.2(b).

Defendant was convicted of a Class 1 felony of indecent liberties with a child on August 3, 1983. This conviction was within 10 years of his present conviction for a criminal sexual assault, another Class 1 felony. Accordingly, defendant was eligible for an extended term.

Although defendant apparently does not dispute this conviction or the fact that he was eligible for an extended term within the language of the statute, defendant contends that an extended term was improperly imposed because the sentencing judge relied on improperly admitted evidence. There are two reasons that we reject defendant’s argument. First, although the trial court found that defendant was eligible for an extended-term sentence, it sentenced defendant to a term of 15 years’ imprisonment, which is the maximum normal sentence within the range for sentencing for a Class 1 felony. Thus, although the trial court correctly determined that defendant was eligible for an extended-term sentence, the actual sentence imposed did not exceed the statutory range for the conviction. Thus, technically defendant was not sentenced to an extended-term sentence. Secondly, we found earlier that all the evidence presented at the sentencing hearing was properly admitted and, therefore, the sentence, whether it is considered an extended term or not, could not have been imposed in reliance on improperly admitted evidence.

The last issue is whether consecutive sentencing was available and appropriate in this case. Whether consecutive or concurrent sentences should be imposed is a determination left to the sound discretion of the court,' as long as the decision does not conflict with the statutory regulations concerning the imposition of such sentences. Section 5 — 8—4 of the Unified Code of Corrections (Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 8—4) sets forth the applicable authority with regard to consecutive sentencing. It states:

“(a) When multiple sentences of imprisonment are imposed on a defendant at the same time, or when a term of imprisonment is imposed on a defendant who is already subject to sentence in this State or in another state, or for a sentence imposed by any district court of the United States, the sentences shall run concurrently or consecutively as determined by the court. *** The court shall not impose consecutive sentences for offenses which were committed as part of a single course of conduct during which there was no substantial change in the nature of the criminal objective, unless, one of the offenses for which defendant was convicted was a Class X or Class 1 felony and the defendant inflicted severe bodily injury, in which event the court may enter sentences to run consecutively. Sentences shall run concurrently unless otherwise specified by the court.
(b) The court shall not impose a consecutive sentence unless, having regard to the nature and circumstances of the offense and the history and character of the defendant, it is of the opinion that such a term is required to protect the public from further criminal conduct by the defendant, the basis for which the court shall set forth in the record.” Ill. Rev. Stat. 1985, ch. 38, par. 1005-8-4.

Defendant argues that consecutive sentences were improperly imposed in this instance because the criminal sexual assault and robbery were part of the same course of conduct and that there was no substantial change in the nature of the criminal objective. Defendant also contends that his background and character did not warrant a finding that consecutive terms of imprisonment were necessary to protect the public from future criminal conduct. We disagree with defendant’s position and find that the trial court’s imposition of consecutive terms of imprisonment was proper.

When consecutive sentences are imposed pursuant to law and supported by the record, they will not be disturbed on review. (People v. Holland (1987), 121 Ill. 2d 136, 520 N.E.2d 270; People v. Steppan (1985), 105 Ill. 2d 310, 473 N.E.2d 1300.) In the present case the State argued in favor of consecutive sentences at the sentencing hearing, stating that the criminal sexual assault and robbery were two separate and distinct courses of conduct and that society needed to be protected from defendant based upon his criminal background and character. The trial court later stated that it considered all the facts and circumstances of the case at bar and the defendant’s background and found that defendant was eligible to be sentenced to consecutive terms and that this was appropriate in this case. We find ample support in the record for this determination.

The record shows that the criminal sexual assault and subsequent robbery were two separate courses of action. The complaining witness testified that defendant approached her and forced her to accompany him to an abandoned building. His objective at that time was clearly to engage in the criminal sexual assault. It was not until he completed this objective that he demanded money from the victim and caused her to undress so he could search for her hidden cash. Furthermore, the extensive testimony concerning defendant’s prior criminal conduct demonstrated clearly that consecutive sentencing was appropriate in this instance since society would be better protected from defendant’s future criminal conduct. Thus, we find that the imposition of consecutive sentences in this case was proper. See People v. Holland (1987), 121 Ill. 2d 136, 520 N.E.2d 270; People v. Rose (1979), 75 Ill. App. 3d 45, 393 N.E.2d 698.

The judgment of the circuit court of Cook County is affirmed. In addition, pursuant to People v. Nicholls (1978), 71 Ill. 2d 166, 374 N.E.2d 194, we assess defendant $50 as costs for this appeal.

Judgment affirmed.

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


text:
    JOHN FOY, Plaintiff-Appellant, v. THE CITY OF CHICAGO et al., Defendants-Appellees.
    First District (1st Division)
    No. 1—88—0687
    Opinion filed February 13, 1990.

      Anne M. Burke and Adrienne M. Geary, both of Chicago, for appellant.
    Judson H. Miner, Corporation Counsel, of Chicago (Ruth M. Moscovitch and Lynn K. Mitchell, Assistant Corporation Counsel, of counsel), for appel-lees.
   JUSTICE CAMPBELL

delivered .the opinion of the court;

Plaintiff, John Foy, appeals from an order granting summary judgment in favor of defendants, the City of Chicago, John Halpin in his capacity as commissioner of the Department of Streets and Sanitation, and Jesse Hoskins in his capacity as commissioner of personnel (collectively referred to as the City). Plaintiff had filed an action seeking a declaratory judgment that the termination of his employment as a probationary career service business manager for the Department of Streets and Sanitation (the Department) was without legal merit and that he be restored to his probationary career service position. On appeal, plaintiff contends that: (1) the trial court erred in granting summary judgment when there were genuine issues of material fact; and (2) the trial court erred in denying plaintiffs motion for leave to file a second amended complaint and to attach depositions. For the following reasons, the judgment of the trial court is affirmed.

The record indicates that on November 15, 1983, plaintiff was appointed to the position of probationary career service business manager in the Department. Pursuant to section 1 of Rule IX of the Personnel Rules of the City of Chicago (the Personnel Rules), plaintiffs probationary period was for one year. On March 22, 1984, the deputy commissioner of the department completed a written performance evaluation of plaintiff, signed and dated by plaintiff, which indicated that plaintiff had “exceeded] requirements” in all evaluated areas, and included the comment, “This man is an excellent Financial officer. Handles all assignments in a professional manner!” Subsequently, on July 3, 1984, per written notice, the commissioner of personnel discharged plaintiff from his probationary position, effective June 29, 1984. The notice stated “poor performance” as the reason for discharge.

On August 17, 1984, plaintiff filed a complaint seeking declaratory judgment, which he amended on February 26, 1985. Plaintiffs first amended complaint set forth two counts. Count I alleged, inter alia, that: (1) plaintiffs discharge was without any factual basis; and (2) plaintiff’s discharge was retaliatory and that defendants had abused their discretion and had conspired to act arbitrarily and capriciously and without justification toward plaintiff. Count II alleged that: (1) because the Personnel Rules of the City of Chicago were not enacted pursuant to the City’s powers as a home rule municipality, the Personnel Rules must conform to the statutory requirements concerning probationary employees which mandate that a department head notify the Civil Service Commission in writing as to the reasons for the discharge and that the Commission consent to the discharge; and (2) the Personnel Rules do not conform to the statutory requirements.

The City then moved to dismiss plaintiff’s first amended complaint. Following a hearing, the trial court denied the motion. Although, on its face, the written order denied the motion as to both counts, at the hearing, the court had only addressed count I and had not referred to count II. As a result, the City moved for reconsideration as to count I and for a specific ruling as to count II. On January 2, 1986, the trial court entered an agreed order which denied the City’s motion for reconsideration as to count I and granted the City’s motion to dismiss count II.

Thereafter, on November 12, 1987, the City moved for summary judgment as to count I on the ground that probationary career service employees do not possess any protected property or other interest in continued employment with the City and may be terminated without cause. Following arguments on the summary judgment motion, plaintiff moved to amend the pleadings and to attach depositions. The trial court denied plaintiff leave to file his amended complaint on the ground that it alleged only insufficient conclusions of law and fact and granted summary judgment in favor of the City. Plaintiff’s timely notice of appeal followed.

Initially, plaintiff contends that his termination as a probationary employee was invalid because the City failed to follow its own procedures for preparing performance evaluations of probationary employees. The parties agree that Personnel Rules IX and XIV govern the manner in which performance evaluations are to be prepared. Section 2 of Rule IX of the Personnel Rules provides:

“The department head shall report to the Department of Personnel on the performance of the probationer, at the time and on the forms prescribed by the Commissioner of Personnel, making at least one such report prior to the completion of the probationary period.”

Section 4 of Rule XIV of the Personnel Rules provides:

“The supervisor responsible for the rating shall inform the employee of the results of a performance evaluation prior to its submission to the department head. The employee shall sign and date the performance evaluation to indicate that she or he has been informed of the rating.”

Contrary to plaintiffs contention, the City did not fail to follow the aforementioned Personnel Rules. It is undisputed that a written performance evaluation of plaintiff, dated March 22, 1984, was prepared by the deputy commissioner of the Department and signed and dated by plaintiff. This procedure expressly conforms to the requirements of Personnel Rules IX and XIV.

In an attempt to establish that the City had violated the Personnel Rules, plaintiff refers to an unsigned and undated “substantively blank purported evaluation form dated August 14, 1984” that was obtained through discovery. However, the record does not support plaintiff’s characterization of the card as an “evaluation form.” Although the fine print on the bottom of the card identifies it as a “Department of Personnel Performance Rating Card,” the area reserved for ratings is blank, the word “terminated” appears in the space reserved for the employee’s name, and it is signed and dated by two individuals. For filing purposes, plaintiff’s name and other identifying codes are typed across the top of the card. Although the card may have been labeled “Performance Rating Card,” it is clear that its use in the present case was merely to note plaintiff’s terminated status for the Department’s records. Thus, the fact it was not signed and dated by plaintiff is irrelevant.

Further, plaintiff’s reliance on DiFalco v. Board of Trustees of the Firemen’s Pension Fund of the Wood Dale Fire Protection District No. One (1988), 122 Ill. 2d 22, 521 N.E.2d 923, and Farmer v. McClure (1988), 172 Ill. App. 3d 246, 526 N.E.2d 486, as support for his position is misplaced. In DiFalco, the supreme court addressed the issue of whether pursuant to section 4 — 110 of the Illinois Pension Code (Ill. Rev. Stat. 1987, ch. 1081/2, par. 4 — 110), a probationary fire fighter is entitled to a disability pension when the fire fighter first applies for the pension a year after his discharge. We find DiFalco to be factually inapposite and unpersuasive as to the issues in the present case. With respect to Farmer v. McClure, although Farmer addresses the issue of the propriety of the discharge of a probationary employee, its factual distinctions render it unpersuasive. In Farmer, the State agency employer had failed to follow its own procedural rules for termination of probationary employees by neglecting to obtain plaintiff’s signature on his performance evaluation form. The reviewing court affirmed the trial court’s mandamus order and mandatory injunction directing the employer to certify plaintiff, to restore his benefits and to refrain from enforcing the order of discharge on the ground, inter alia, that plaintiff had the right to have administrative rules followed. As discussed, in the present case, the City followed its Personnel Rules when it terminated plaintiff.

Next, plaintiff contends that the City violated its duty of good faith toward him by terminating him for a false reason. As a matter of law, the implied duty of good faith is inherently incongruous with an employment contract which gives the employer the right to terminate employment without cause. (Harrison v. Sears, Roebuck & Co. (1989), 189 Ill. App. 3d 980, 546 N.E.2d 248.) Moreover, we find plaintiff’s suggestion that his excellent evaluation in March evidences that his termination in June was improper to be extremely tenuous. In March, half of plaintiff’s probationary period remained within which his job performance was to be evaluated. A favorable performance for one half of a probationary period does not guarantee the same performance for the second half. Furthermore, even if his performance rating in June had remained the same, that fact would be irrelevant to the propriety of plaintiff’s termination. Nothing in the Personnel Rules requires an unsatisfactory performance rating as a prerequisite to firing a probationary employee. (See Fontano v. City of Chicago (7th Cir. 1987), 820 F.2d 213.) In its memorandum of opinion, the trial court acknowledged this legal principal when it stated, “[W]here the rules do not require that any reason be given much less an accurate reason a discharge for a ‘false reason’ does not violate the Personnel Rules.” In our view, Illinois law supports this conclusion.

Plaintiff next contends that the trial court’s denial of his motion to amend the pleadings and to attach depositions filed after the hearing on the City’s motion for summary judgment was a clear abuse of discretion. In support of his contention, plaintiff relies on section 2 — 1005(c) of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1005(c)) and on Fryison v. McGee (1982), 106 Ill. App. 3d 537, 436 N.E.2d 12. In our view, neither of these authorities supports plaintiff’s position.

Section 2 — 1005(c) provides, in pertinent part:

“The opposite party may prior to or at the time of the hearing on the motion file counteraffidavits.” (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1005(c).)

In the present case, not only did plaintiff wait until one week after the hearing on the summary judgment motion to request leave to amend the pleadings, he attempted to attach depositions, not counter-affidavits, to the amended pleading. In our view, even the most liberal construction of section 2 — 1005(c) would not support plaintiffs attempt to amend the pleadings at that time and in that manner.

Plaintiffs reliance on Fryison v. McGee (1982), 106 Ill. App. 3d 537, 436 N.E.2d 12, is equally unpersuasive. Plaintiff cites to Fryi-son as support for the general legal principle that in determining a summary judgment motion, the court has the duty to review the entire record and to construe the evidence strictly against the moving party and liberally in favor of the nonmoving party. As a general statement of law, plaintiffs statement is correct. However, as support for his argument that the trial court abused its discretion by not allowing him to file his amended pleading, it is inapplicable. The court’s obligation to review the record extends only to timely filed, well-pled pleadings. As discussed, plaintiff’s amended complaint did not satisfy these prerequisites.

For the aforementioned reasons, the judgment of the trial court is affirmed.

Affirmed.

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


text:
    THE DEPARTMENT OF REVENUE, J. Thomas Johnson, Director, Plaintiff-Appellee, v. GEORGE G. SEMENEK et al., d/b/a George G. Semenek and Associates, Inc., Defendants-Appellants.
    First District (1st Division)
    Nos. 1—88—2588, 1—88—2589 cons.
    Opinion filed February 13, 1990.
    Rehearing denied March 14, 1990.

      O’Halloran, Kosoff & Miller, RC., of Northbrook (John O. Demaret and Patricia A. Heeney, of counsel), for appellants.
    Neil F. Hartigan, Attorney General, of Springfield (George W. Foster, Special Assistant Attorney General, of Chicago, of counsel), for appellee.
   JUSTICE O’CONNOR

delivered the opinion of the court:

John Sheehy and George Semenek challenge a judgment against them as individuals for failure to pay retailers’ occupation taxes. For the reasons below, we affirm.

John Sheehy and George Semenek operated a gas station under the name of George G. Semenek and Associates, Inc., a business incorporated on May 18, 1978 (the Corporation). On December 1, 1980, the Illinois Secretary of State dissolved the corporation for failure to file annual reports and pay franchise taxes. On August 28, 1984, the Secretary of State reinstated the corporation. During the period of dissolution, Sheehy and Semenek continued to sell gasoline.

In 1982, the Illinois Department of Revenue issued notices of tax liability pursuant to the Retailers’ Occupation Tax Act (ROTA) (Ill. Rev. Stat. 1981, ch. 120, par. 440 et seq.), for July 1981 through January 1982. The notices were issued to George G. Semenek and Associates, Inc., under the corporation’s ROTA registration number.

On July 25, 1984, the Department of Revenue sued Sheehy and Semenek as individuals for failure to comply with the ROTA. Sheehy and Semenek moved to dismiss the complaint on the grounds that the Department of Revenue had sued the wrong parties, claiming that the ROTA liability belonged to the corporation. The motion was denied. Subsequently, judgment was entered on the pleadings against Sheehy and Semenek in the amount of $114,362.73. Sheehy and Semenek appeal.

Sheehy and Semenek argue that under section 12.45(d) of the Business Corporation Act of 1983 (the BCA) (Ill. Rev. Stat. 1985, ch. 32, par. 12.45(d)), reinstatement of their dissolved corporation related back to the date of dissolution and caused the ROTA liability to rest with the corporation, and not with them personally; therefore, the Department of Revenue sued the wrong parties when it brought action against them as individuals. We disagree.

Section 12.45(d) became effective on July 1, 1984, and provides:

“Upon the issuance of the certifícate of reinstatement, the corporate existence shall be deemed to have continued without interruption from the date of the issuance of the certificate of dissolution, and the corporation shall stand revived with such powers, duties and obligations as if it had not been dissolved; and all acts and proceedings of its officers, directors and shareholders, acting or purporting to act as such, which would have been legal and valid but for such dissolution, shall stand ratified and confirmed.” (Ill. Rev. Stat. 1985, ch. 32, par. 12.45(d).)

Section 12.45(d) codified the doctrine of “relation back” (see Romondo v. Industrial Comm’n (1988), 171 Ill. App. 3d 838, 525 N.E.2d 1005; Regal Package Liquor, Inc. v. J.R.D., Inc. (1984), 125 Ill. App. 3d 689, 466 N.E.2d 409), which permits a reinstated corporation to ratify actions taken on its behalf during a period of dissolution, and gives those actions legal effect from the time they were taken. But relation back does not transform individual liability to corporate liability (In re Estate of Plepel (1983), 115 Ill. App. 3d 803, 450 N.E.2d 1244), nor does it create a legal fiction contrary to the true nature of events, and such was clearly not the legislative intent of section 12.45(d).

Here, the corporation was dissolved in 1980. Sheehy and Se-menek chose, however, to continue selling gasoline without reinstating the corporation, evincing the intent to act as individuals. Thus, when Sheehy and Semenek sold gas during the period of dissolution, they assumed a personal obligation to collect and remit the ROTA taxes. Further, the notices of tax liability sent to “George G. Semenek and Associates, Inc.,” under the corporate registration number, were sufficient to give Sheehy and Semenek notice of the assessment of liability. (People ex rel. Scott v. Pintozzi (1971), 50 Ill. 2d 115, 277 N.E.2d 844.) Section 12.45(d) cannot be invoked to shift individual liability to the corporation, or to impose a legal fiction that belies the real world fact that Sheehy and Semenek sold gasoline, and thus personally assumed the ROTA liability.

Further, Sheehy and Semenek’s interpretation of section 12.45(d) runs contrary to the purpose and policies of the ROTA. ROTA creates “responsibility for the stewardship of the funds collected from the public for the State.” (Department of Revenue v. Heartland Investments, Inc. (1985), 106 Ill. 2d 19, 28, 476 N.E.2d 413.) ROTA levies a tax on the retailer for the privilege of operating a business in the State (People v. Sevilla (1989), 132 Ill. 2d 113, 547 N.E.2d 117; Reif v. Barrett (1933), 355 Ill. 104), and imposes the duty on the retailer to file a retailer’s occupation tax return each month and to remit the tax payment. (Ill. Rev. Stat. 1983, ch. 120, par. 422.) To facilitate compliance and collection, ROTA contains a detailed registration requirement and enforcement scheme (see Ill. Rev. Stat. 1983, ch. 120, pars. 440 through 451), including criminal penalties for the willful failure to file or pay the taxes due. Ill. Rev. Stat. 1983, ch. 120, par. 452; People v. Sevilla (1989), 132 Ill. 2d 113, 547 N.E.2d 117.

Sheehy and Semenek’s interpretation of section 12.45(d) would enable the taxpayer to evade the provisions of ROTA. For example, a taxpayer could shift tax liability to a corporation that did not exist when the liability arose, leaving the Department to proceed against a nonexistent or insolvent corporation, in effect making the tax liability judgment worthless. Another, perhaps more serious, problem might arise where criminal charges were brought against the taxpayer. Sheehy and Semenek were not charged with any criminal acts, but if such charges were made, the reinstated corporation would, by Sheehy and Semenek’s operation of section 12.45(d), be placed in the dubious position of ratifying the criminal acts of its agents. Clearly, the legislature did not intend for section 12.45(d) to function as an instrument to foil the policies of ROTA, and impose needless and excessive complexity in the administration of the tax laws.

In conclusion, we find section 12.45(d) inapplicable here because it does not transform individual liability into corporate liability. Because section 12.45(d) has no effect, it is unnecessary to address the Department of Revenue’s argument that its application here would be retroactive. Accordingly, we hold that the action in debt against Sheehy and Semenek was properly brought, and the judgment of the trial court is affirmed.

Affirmed.

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