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    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, Cross-Appellant, v. ROBERT W. PRINCE, Defendant-Appellant, Cross-Appellee.
    Fifth District
    No. 5—87—0840
    Opinion filed August 2, 1989.

      Daniel M. Kirwan and Janet L. Gandy, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Wayne Morris, State’s Attorney, of McLeansboro (Kenneth R. Boyle, Stephen E. Norris, and Gerry R. Arnold, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE LEWIS

delivered the opinion of the court:

Defendant, Robert Prince, was found guilty by a jury of the offenses of armed violence, aggravated battery, obstruction of justice, and the possession of a firearm without the requisite firearm owner's identification card. (Ill. Rev. Stat. 1987, ch. 38, pars. 33A — 2, 12— 4(b)(1), 31 — 4(a), 83 — 2(a).) The circuit court entered judgment on the convictions of armed violence and the possession of a firearm without a firearm owner’s identification card, but vacated the convictions for aggravated battery and obstruction of justice. In so doing, the court found that the aggravated battery was the underlying offense for the armed violence charge and that the charge of obstruction of justice was not a proper charge. The court declared a mistrial on the remaining charge, attempted murder, as the jury could not arrive at a unanimous decision on this offense. Subsequently, the court sentenced the defendant to 12 years’ imprisonment, to pay a fine of $1,500, and to pay $152 to the Violent Crimes Assistance Fund for the armed violence conviction, and to a concurrent sentence of 364 days’ imprisonment for the possession of a firearm without a firearm owner’s identification card conviction. The defendant filed a motion for a new trial which was denied by the court. From his convictions and sentences, the defendant appeals. Additionally, the State, after a separate written order was entered by the court vacating the obstruction of justice conviction, appeals that order.

On appeal, the defendant raises three issues: first, that the filing of additional charges by the State’s Attorney after the defendant had withdrawn his guilty plea was indicative of prosecutorial vindictiveness; second, that the separate and cumulative effect of evidentiary errors denied the defendant a fair trial; and third, that the defendant’s sentence should be vacated as the circuit court failed to consider in mitigation that the victim had a violent temperament and that the defendant held an unreasonable belief of self-defense and improperly considered as a factor in aggravation that the sentence was necessary to deter others. In addition to these issues, the defendant filed two motions to dismiss the State’s appeal of the vacating of the obstruction of justice conviction, both of which were considered with this case at oral arguments. The first motion to dismiss challenged the State’s right to appeal this decision and the second motion to dismiss claimed that the State did not timely file its brief for its appeal. We first consider the defendant’s appeal.

To address the defendant’s issue of prosecutorial vindictiveness, it is necessary to set forth the procedural history of this case. The defendant was originally charged by information with the offenses of attempted murder and aggravated battery. (Ill. Rev. Stat. 1985, ch. 38, pars. 8 — 4(a), 12 — 4(b)(1).) Prior to the defendant’s trial on these offenses, the State’s Attorney sent a letter to defense counsel in which he indicated that he intended to prosecute only the attempted murder charge. On April 20, 1987, this case proceeded to trial before a jury. Three days into the defendant’s trial, on April 23, 1987, after the State had rested its case in chief and the defendant had presented his case but before the State presented rebuttal evidence, the defendant initiated plea negotiations and entered a plea of guilty to the lesser offense of aggravated battery, which was accepted by the court. In exchange for the defendant’s plea of guilty, the State agreed to dismiss the charge of attempted murder. Shortly thereafter, on May 26, 1987, the defendant filed a petition to withdraw his guilty plea. At the hearing on the petition, the State did not object to the petition but stated that if the defendant believed he had been pressured into his guilty plea, the State would not oppose the withdrawal of his plea. In addition, the State advised the court that at the time of the plea agreement, the prosecutor was unaware of how extensive the defendant’s criminal history was and, on that basis, would concur in the withdrawal of the defendant’s guilty plea. The court allowed the defendant to withdraw his guilty plea.

On September 10, 1987, the State filed a new information in which the defendant was charged with attempted murder, aggravated battery, obstruction of justice, and the possession of a firearm without the requisite firearm owner’s identification card. (Ill. Rev. Stat. 1987, ch. 38, pars. 8 — 4(a), 12 — 4(b)(1), 31 — 4(a), 83 — 2(a).) The defendant filed a motion to dismiss the information, contending that the prosecution of these charges was barred by sections 3 — 3 through 3 — 8 of the Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, pars. 3 — 3 through 3 — 8), that prosecution of the charges of attempted murder and aggravated battery would result in the defendant being subject to double jeopardy for these offenses, and that the instituting of the additional charges of obstruction of justice and of possession of a firearm without a firearm owner’s identification card was a punishment for the defendant’s exercising of his right to withdraw his guilty plea. The circuit court denied the defendant’s motion to dismiss.

On October 5, 1987, the State filed an amended information in which the charge of armed violence was added and the offense of aggravated battery was amended to state “great bodily harm” instead of “bodily harm.” (Ill. Rev. Stat. 1987, ch. 38, par. 33A — 2.) The State’s Attorney also filed an affidavit with the court, stating that he did not file the new information charging the defendant with additional offenses as punishment, but that he instituted the additional charges “on the basis of an evaluation of the defendant’s conduct (which this affiant was better prepared to do after reviewing the transcript of the first trial) and the criminal charges that prohibit such conduct.” The defendant renewed his motion to dismiss the information after the filing of the amended information, which motion was also denied by the court.

This case went to trial before the second jury on October 20, 1987, and at the close of the evidence, the jury found the defendant guilty of the offenses of armed violence, aggravated battery, obstruction of justice, and possession of a firearm without a firearm owner’s identification card. As noted previously, the court entered judgment on the convictions for armed violence and possession of a firearm without a firearm owner’s identification card, vacated the convictions for aggravated battery and obstruction of justice, and declared a mistrial as to the charge of attempted murder.

In addition to the foregoing procedural history, a statement of the facts of this case is needed. It should be noted that the evidence presented at the defendant’s first trial was essentially identical to evidence presented at the second trial, and since only the evidence presented at the second trial is necessary for this appeal, the facts presented at the first trial need not be set forth here. At trial, Linda Maurer testified that on July 27 and July 28, 1986, she attended a party at Gary Woolard’s home. She arrived at the party at about 11 p.m. with her fiance, Joe Dennis. During the party, Maurer drank three drinks but she denied that she had taken any drugs. When Maurer first saw the defendant at the party, the defendant showed Dennis and herself a gun he had bought. The defendant told them that he brought the gun with him in case someone gave him “trouble.”

Shortly after midnight, Maurer saw the defendant and Stanley Walters together arguing. The defendant and Walters were outside between the house and the garage, and were approximately five feet from each other. Although it was night, the area where the defendant and Walters were standing was well lighted. According to Maurer’s testimony, Walters was standing still, and although Maurer saw that Walters had a beer in his hands, she did not see Walters throw beer on the defendant. She then saw the defendant pull out his gun and shoot at Walters three times, one of the shots going into the ground and the other two shots being fired at Walters. After the shooting, the defendant kept the gun aimed at Walters and said to Walters, “Don’t think I won’t shoot you, you m-— f- — .” The defendant then walked away. Maurer left the party and went with Walters to the hospital.

Stanley Walters testified that he arrived at Gary Woolard’s party with Paul Hauschild at about 10 or 11 a.m. on July 27. That day, Walters drank approximately 30 8-ounce cups of beer, four or five margaritas, and did four or five “lines” of cocaine. A little after midnight, Walters got into an argument with the defendant. Walters told the defendant that he should not go into Gary Woolard’s house, but he did not threaten the defendant. He and the defendant exchanged words and Walters turned around towards the defendant. As Walters turned around, the beer he held in his hand went all over Paul Hauschild, but Walters did not think that any of the beer went onto the defendant. After that, the defendant shot Walters twice, once in the chest and once in the neck. Walters stated that he was then taken to the hospital by Joe Dennis.

On cross-examination, Walters testified that he did not use cocaine on a regular basis, and that on the day of the party, he did not do the cocaine in front of anyone. He believed that Paul Hauschild was unaware that Walters had cocaine in his possession, even though Walters had arrived with Hauschild at the party after having travelled together from Chicago, a S^-hour drive. Walters denied that he still used cocaine.

Greg Dolden testified that he arrived at Gary Woolard’s party on July 27, 1986, at about 4 or 5 p.m. Dolden drank approximately six beers at the party, but he did not do any drugs. Dolden’s testimony was similar to Maurer’s testimony in that shortly after midnight, he saw the defendant and Walters arguing. Dolden stated that he was standing next to the defendant and that Walters was five feet away from the defendant. Dolden did not know what Walters and the defendant were arguing about, but he saw Walters throw a beer which went onto Paul Hauschild. The defendant pulled a silver .25 caliber gun out of his back pocket and fired three shots at Walters. Next, the defendant backed away with the gun still aimed, got into his car, and drove away. After the defendant left, Joe Dennis and Dennis’ girlfriend, Linda Maurer, drove Walters to the hospital.

Dolden admitted that he had a prior conviction for aggravated battery in Saline County. He stated that he had received a sentence of two years’ probation and a $1,000 fine for this offense. Dolden also testified that Walters was his ex-brother-in-law.

Staci Dolden testified that she worked for the Illinois Department of Corrections. On July 27, 1986, she arrived at Gary Woolard’s party at around 4 or 5 p.m. She drank approximately two margaritas and she did not take any drugs at the party. She too witnessed the argument between the defendant and Walters. She heard Walters ask the defendant to leave the party because they didn’t want any trouble. This statement precipitated further words between the defendant and Walters. She also saw Walters throw a beer towards the defendant, but she stated that the beer went onto Paul Hauschild. Defendant then pulled out a gun and shot once at the ground and then two times at Walters. The defendant backed away with his gun still pointed, got into his car, and left.

Prior to the shooting, Staci did not see Walters with a weapon, and Walters appeared to her to be calm. She stated that Walters had never been violent around her and that he had always appeared to be mild mannered. It was Staci’s recollection that Walters went to the hospital after the defendant left.

Joe Dennis, Walters’ cousin, testified that he arrived at Gary Woolard’s party at about 11 p.m. on July 27, 1986. He drank three drinks at the party but did not take any drugs. Dennis corroborated Maurer’s testimony about the defendant showing them a gun and stating that he brought it to prevent anyone from giving him trouble.

Dennis also witnessed the argument between the defendant and Walters. He could not hear what they were saying but, when he moved closer, he could hear them arguing. He too stated that the defendant pulled a gun out from his back pocket and that the gun went off towards the ground, but that the defendant raised the gun up and shot twice. Dennis saw nothing in Walters’ hands. Dennis did not see Walters throw a beer, but he admitted that a beer might have been thrown and that he did not see it. After the shooting, Dennis and Maurer took Walters to the hospital.

Dr. Elliott Partridge testified that he saw Walters at the emergency room at Ferrell Hospital at approximately 2 a.m. on July 28, 1986. The doctor, after examining Walters’ X rays, determined that there were two bullets in Walters. Dr. Partridge stated that Walters advised him that he had done cocaine recently.

Bill Warren, the sheriff of Hamilton County, testified that he was present on July 29, 1986, when Trooper Ceja found a .25 caliber semiautomatic Raven pistol in the North Fork of the Saline River, about one-half mile from Gary Woolard’s home. When the gun was found, there were three live rounds of ammunition in the gun. Sheriff Warren admitted that he knew where to look for the gun as the defendant had told him where it was.

State Trooper Thomas Ceja testified that he was a diver for the State police’s underwater search and discovery team. On July 29, 1986, he dove in the North Fork of the Saline River south of the bridge in search of a gun. He was directed to dive at this site by the sheriff of Hamilton County. After searching the area for about an hour, Trooper Ceja found a .25 caliber automatic Raven Arms weapon which contained three rounds of ammunition. When he found the gun, the safety was off and the gun was ready to fire.

Deputy Sheriff Greg Brenner stated that he investigated the scene of the shooting. He collected evidence, talked to witnesses, and photographed the area. Deputy Brenner found three spent .25 caliber shell casings at Gary Woolard’s residence.

The State’s next witness, Donald Gunnell, testified that he was employed as a forensic scientist in firearm and tool mark identification by the Illinois State Police, Southern Illinois Crime Lab. He had examined and had test fired the weapon found by Trooper Ceja. He stated that this weapon held six bullets in the magazine and one shell in the chamber when fully loaded. He explained that to fire the gun, a person must pull the trigger each time.

Gunnell compared his test-fired bullets to the bullet removed from Walters and found that all of the bullets had been fired from the same weapon. Likewise, when he compared the shell casings found at Gary Woolard’s home with the discharged casings from his test firing of the weapon, he found that the discharged shell casings found at the scene had come from the same gun.

Don Prince, the defendant’s brother, testified on the defendant’s behalf. Don arrived at the defendant’s home on July 28, 1986, at approximately 4 a.m., and, at that time, the defendant’s home was surrounded by the police. Don talked to the defendant from outside the house and asked the defendant to come out, which the defendant did.

Defendant testified that he went to Gary Woolard’s birthday party at about 7 p.m. on July 27, 1986. He explained that he had arranged to meet John Maguire at a bridge at about 2 p.m. that day to show Maguire his .25 caliber semi-automatic Raven pistol, but that he had instead spent the day with his fiancee and her daughter. When the defendant went to the party, he took his gun and six bullets with him. He had loaded the gun and kept it in his right rear pocket, but he denied showing the gun to anyone at the party. The defendant saw Walters at the party and he appeared to the defendant to be getting drunk and “angry looking.”

Around midnight, the defendant stated he needed to use the bathroom and opened the back door of Gary Woolard’s house to go inside. As he did so, Walters told him that he was not to come into the house, and after Walters heard why the defendant needed to come inside, Walters advised him to use the bathroom in the garage. Defendant went to the garage, and when he opened the door of the bathroom, he saw Paul Hauschild taking cocaine. The defendant closed the door and waited for Hauschild to come out of the bathroom, and then went in himself. Upon coming out of the garage, the defendant saw Hauschild and Walters talking together, and Hauschild was pointing towards the defendant. At that time, Walters approached the defendant and told the defendant that he should leave the party. The defendant agreed to do so and as the defendant walked towards his car, Hauschild came up to him and stopped him. Hauschild motioned to Walters to come over. The defendant became frightened as Hauschild said he was going to make sure that the defendant did not tell anyone about what the defendant had seen in the bathroom. As Walter approached, Walters took his beer and threw it at the defendant and said, “I thought I told you to leave you son-of-a-b— and b------.”

The defendant stated that the beer thrown by Walters went partly onto Paul and that the remainder of it hit him in the face. According to the defendant, Walters told the defendant that he was going to kill him. The defendant, still partially blinded by the beer, reached into his back pocket, pulled out his gun, and fired a shot at the ground to warn Walters. Because Walters came towards him, he fired his gun two more times. He explained that he did not intend to hurt or kill Walters and that he did not aim the gun, but that he simply wanted to stop Walters. He did not see Walters with a weapon.

The defendant stated that after he shot Walters, Joe Dennis took Walters to his truck and drove away. The defendant backed towards his car with the gun still pointed at people as he knew that Walters had relatives at the party and the defendant feared they would retaliate for the shooting.

The defendant admitted that he stopped at the bridge at the Saline River and threw his gun into the water. He went to his home and about three or four hours later, the police surrounded his home. He did not come out of his house when the police arrived, but he did so approximately an hour and a half later, when his brother asked him to come out. He stated that until that time, no one had asked him to come out. The defendant also admitted that he did not have a firearm owner’s identification card for the gun.

The defendant explained that he was afraid of Walters as he was aware of Walters’ propensity for violence. The defendant testified to witnessing an incident where Walters, for no apparent reason, struck Jim Thom at a wedding reception, and after the fight, the defendant took Thorn to the hospital. Thorn required 41 to 46 stitches to repair his lip and 13 or 14 stitches were needed on the back of Thorn’s head.

The defendant also testified about an incident between Walters and Rick Price, wherein the defendant saw Walters grab Price and throw him against a counter. The defendant likewise testified to an episode where he witnessed Walters hit Frank Farris in the head with an ashtray when Walters was drank.

On cross-examination, the defendant was asked if he had taken any drags at the party. The defendant’s answer to this question did not appear in the record at this point; however, on redirect, the defendant denied that he had taken drags.

John Maguire testified that on July 27, 1986, he was to meet the defendant at a bridge near Gary Woolard’s home so that he might shoot the defendant’s gun, which he was interested in buying. The defendant did not appear at their designated meeting time of 2 p.m., so Maguire went on to Gary Woolard’s party. Maguire arrived at the party at about 2:15 p.m., and when he arrived, he did not see the defendant. Maguire saw Walters several times during that day. When he saw Walters at about 7 or 8 p.m. that evening, in his opinion, Walters was getting “rowdy” and loud. Maguire left the party at around midnight.

Maguire testified that Walters had a reputation for being mean and for hurting people “bad” if Walters had a disagreement with them. He corroborated the defendant’s testimony regarding Walters’ fights with Thom, Price and Farris.

Maguire stated that he had received a threat from Walters about testifying for the defendant. Maguire was told by Walters not to worry about the defendant, but that he “had better worry about myself because I had my own family to worry about.” Maguire never filed a complaint against Walters as a result of the threats. Likewise, he never filed a complaint for any of Walters’ violent actions.

The defendant completed his case by introducing a battery conviction of Walters into evidence. According to this evidence, Walters was convicted in May, 1987, for a battery against Debra Walters.

In rebuttal, the State presented the testimony of Paul Hauschild. Hauschild testified that he was at Gary Woolard’s party on July 27 and July 28, 1986. At the party, he drank approximately 10 beers, two or three margaritas, and he did two “lines” of cocaine.

Between 9 and 10 p.m. on July 27, 1986, the defendant asked Hauschild if he had any cocaine, so Hauschild took the defendant into the bathroom and they both did a “line” of cocaine. Hauschild denied that the defendant came in on him when Hauschild was doing cocaine, but stated that he and the defendant shared the cocaine. While they were in the bathroom, the defendant showed Hauschild his .25 caliber automatic pistol. Hauschild said that the defendant told him he always carried the gun and that “nobody messes with me.”

Hauschild was with Walters when Walters and the defendant began arguing. Hauschild had put his arm around Walters and was leading him away when the defendant yelled at Walters. Walters turned around, and as he did so, the beer in Walters’ hand went up in the air and came down on Hauschild. At that point, the defendant pulled out his gun and shot three times in Walters’ direction. Hauschild stated that none of the beer from Walters’ cup went onto the defendant. After the shooting, the defendant told Walters, “I will blow your head off.” Walters then left for the hospital, after which the defendant left.

James Cochran testified that he was present at the wedding reception when Walters hit Thorn. He explained that a Ronnie Page had had an argument and was drunk and that Walters took Page outside to calm him down. While they were outside, Thorn came up to Page and Walters and started arguing with Page. Walters told Thorn to leave them alone. When it appeared that Thorn was going to strike Walters, Walters hit Thom in the face. Joe Roby, the next witness called by the State, corroborated Cochran’s testimony.

In surrebuttal, the defendant called Jack Nolan, an officer with the Illinois State Police, Division of Criminal Investigations, to testify. Nolan stated that he interviewed the defendant on July 28, 1986, at about 7:30 a.m. He found the defendant cooperative and he admitted that the defendant told him where the gun that he used to shoot Walters was to be found. The defendant told Nolan that he had been at a “booze” party and that he had drunk alcohol, but that he had not taken any drugs. The defendant offered to take a breath test or any other test the officer deemed necessary. Nolan did not administer any test to the defendant as he concluded that a time span of six or seven hours had transpired and it would not be beneficial to test the defendant.

After considering this evidence, the jury found the defendant guilty of armed violence, aggravated battery, obstruction of justice and possession of a firearm without a firearm owner’s identification card. The court subsequently entered judgment on the convictions of armed violence and for possession of a firearm without a firearm owner’s identification card.

We now consider the defendant’s issues raised on appeal. Defendant’s first contention is that the prosecutor’s filing of additional and more serious charges against the defendant after the withdrawal of his guilty plea to aggravated battery evidenced prosecutorial vindictiveness and violated his due process rights. The State contends that the defendant has waived this issue as he failed to include it in his post-trial motion. We agree.

In the case sub judice, the defendant filed a post-trial motion, but in his motion he failed to allege the error he now raises on appeal. One paragraph of his motion stated as follows:

“That the Court errored [sic\ in allowing the State to add in new charges, to wit, the charges of Armed Violence, Obstructing Justice and Failure to have a Firearm Permit. That the filing of these new charges was in violation of Section 3 — 3 of the Illinois Criminal Code [sic]. That the Defendant raises each and every objection to the filing of these new charges as found in the similar case of People v. Lewis 112 Ill. App. 3d 626, 445 N.E.2d 916, 68 Ill. Dec. 272, a copy of which citation is attached hereto and made a part hereof.”

A review of Lewis reveals that in that case, the defendant was brought to trial for the offenses of attempted murder, aggravated battery (with a deadly weapon), and armed violence (predicated on the offense of aggravated battery). At trial, the jury found the defendant not guilty of attempted murder but was unable to reach a verdict on the aggravated battery and the armed violence charges, so the court declared a mistrial on those two offenses. Before retrying the defendant, the State amended its information and added additional charges not brought before the first trial. The Lewis court found that only the conviction of the remaining charge on which the mistrial was originally declared could stand and that the new charges, which could have been brought before the original trial, were not proper. The arguments in Lewis centered on sections 3 — 3 and 3 — 4 of the Criminal Code of 1961 and did not raise the contention of prosecutorial vindictiveness, so the reference to Lewis did not preserve this issue. (Ill. Rev. Stat. 1983, ch. 38, pars. 3 — 3, 3 — 4.) Likewise, the defendant’s broad allegations in his post-trial motion, that he did not have a transcript of the trial at the time he prepared his post-trial motion and that “[h]e, therefore, includes in this Motion, all further errors *** of the Defendant’s fair trial, due process, and other constitutional rights” contained in the record, were insufficient to preserve the issue for review. (See People v. Collins (1984), 127 Ill. App. 3d 236, 468 N.E.2d 1343.) Thus, the defendant in this case did not raise this issue in his post-trial motion, and therefore, unless this issue comes within an exception, he has waived it. People v. Friesland (1985), 109 Ill. 2d 369, 488 N.E.2d 261.

The exception to the waiver rule can be found in Supreme Court Rule 615(a). (107 Ill. 2d R. 615(a).) Under this rule, plain errors can be considered even though not preserved; however, this exception is usually applied in those cases where the evidence is closely balanced. (Collins, 127 Ill. App. 3d 236, 468 N.E.2d 1343.) Here, eyewitness testimony and the defendant’s testimony lead inescapably and overwhelmingly to the conclusion that the defendant had committed the offenses of which he was convicted.

Moreover, we do not determine that there was prosecutorial vindictiveness present in this case. Defendant contends that because he pleaded guilty to the aggravated battery charge, this was tantamount to a conviction of that charge. When the prosecutor reinstated the attempted murder charge and added the armed violence charge, the defendant argues that these charges were additional and more serious charges than those of which he was convicted, and that this was evidence of prosecutorial vindictiveness. Defendant argues that his case is similar to Blackledge v. Perry (1974), 417 U.S. 21, 40 L. Ed. 2d 628, 94 S. Ct. 2098, and North Carolina v. Pearce (1969), 395 U.S. 711, 23 L. Ed. 2d 656, 89 S. Ct. 2072, wherein the United States Supreme Court held that there is a presumption of prosecutorial vindictiveness where a prosecutor brings additional and more serious charges against a defendant after he has been convicted of an offense and has overturned his conviction, thereby subjecting a defendant to greater sanctions for pursuing a statutory or constitutional right. We disagree.

We find that the defendant’s case is more analogous to United States v. Goodwin (1982), 457 U.S. 368, 73 L. Ed. 2d 74, 102 S. Ct. 2485. In Goodwin, the prosecutor brought additional charges against the defendant after unsuccessful plea negotiations. The Supreme Court held that there is no presumption of prosecutorial vindictiveness under those circumstances, and stated:

“In declining to apply a presumption of vindictiveness, the Court recognized that ‘additional’ charges obtained by a prosecutor could not necessarily be characterized as an impermissible ‘penalty.’ Since charges brought in an original indictment may be abandoned by the prosecutor in the course of plea negotiation — in often what is clearly a ‘benefit’ to the defendant-changes in the charging decision that occur in the context of plea negotiation are an inaccurate measure of improper prosecutorial ‘vindictiveness.’ *** For just as a prosecutor may forgo legitimate charges already brought in an effort to save the time and expense of trial, a prosecutor may file additional charges if an initial expectation that a defendant would plead guilty to lesser charges proves unfounded.
There is good reason to be cautious before adopting an inflexible presumption of prosecutorial vindictiveness in a pretrial setting. In the course of preparing a case for trial, the prosecutor may uncover additional information that suggests a basis for further prosecution or he simply may come to realize that information possessed by the State has a broader significance.” (Goodwin, 457 U.S. at 378-81, 73 L. Ed. 2d at 84-85, 102 S. Ct. at 2492.)

The Supreme Court went on to add:

“A prosecutor should remain free before trial to exercise the broad discretion entrusted to him to determine the extent of the societal interest in prosecution. An initial decision should not freeze future conduct.” (Goodwin, 457 U.S. at 382, 73 L. Ed. 2d at 86, 102 S. Ct. at 2493.)

In the instant case, the initial trial of the defendant for the offense of attempted murder was never completed and no conviction ensued. The defendant’s plea of guilty to aggravated battery would have constituted a conviction had the defendant not had a change of heart. However, once the defendant withdrew from his bargain, the State was not locked into the aggravated battery charge only, but the slate was wiped clean and the State and the defendant were placed in the same position as before the initial trial and before the guilty plea, for to hold otherwise would not permit the flexibility that is essential to carry out the policy considerations inherent in plea negotiations. (See People v. McCutcheon (1977), 68 Ill. 2d 101, 368 N.E.2d 886.) Further, since a prosecutor is permitted to amend an information at any time prior to trial, providing it does not result in prejudice to the defendant, the prosecutor in this case was within the law in charging the defendant with additional charges prior to trial.

It should also be noted that in this case, the defendant was not charged in the new information with a more serious offense than he was originally charged, and since attempted murder and armed violence are the same class of offenses, they are subject to the same sentence being imposed. In this case a sentence was never imposed against the defendant during any proceeding, and the defendant was never exposed to the possibility of a larger sentence being imposed than was possible under his original charged offense of attempted murder. We find that there is no presumption of prosecutorial vindictiveness raised here or is there evidence of actual vindictiveness, and that the defendant was not deprived of his due process rights. This decision is in accord with the recent United States Supreme Court’s ruling in Alabama v. Smith (1989), 490 U.S._, 104 L. Ed. 2d 865, 109 S. Ct. 2201.

The defendant’s second issue consists of three evidentiary errors which arose at trial and which the defendant contends alone and cumulatively deprived him of a fair trial. The three errors raised by the defendant are: (1) that the circuit court erred when it denied the defendant the opportunity to cross-examine a State’s witness regarding his pending charge of aggravated battery in another county; (2) that the court erred in restricting the defendant’s evidence of the victim’s propensity for violence as this evidence was relevant to the defendant’s claim of self-defense; and (3) that the court improperly allowed the State to impeach the defendant as to his use of cocaine on the night of the offense, as this was evidence of a specific prior bad act which was unrelated to a material issue at trial and which unduly prejudiced the defendant.

With regard to the first evidentiary error raised by the defendant, the defendant argues that he should have been permitted to question Greg Dolden, a State’s witness, about an aggravated battery charge pending in another county as this testimony would have impeached Dolden by showing his possible bias or motive to testify falsely. We do not find that the circuit court’s granting of the State’s motion to restrict questioning on this topic error. Dolden testified that he had one conviction for aggravated battery. The charge on which the defendant desired to question Dolden was not on this conviction but on another pending charge in another county.

Testimony of an arrest is not to be used to impeach generally, but may be used when it reasonably tends to show that the testimony would be influenced by interest, bias or motive to testify falsely. (People v. Triplett (1985), 108 Ill. 2d 463, 485 N.E.2d 9.) However, when an arrest is used in such a manner, the evidence must support the inference that the witness has something to gain or lose by his testimony; therefore, the evidence must not be remote or uncertain. (Triplett, 108 Ill. 2d 463, 485 N.E.2d 9.) Here, Dolden’s testimony was not the only testimony upon which the defendant’s conviction rested and Dolden’s testimony corresponded substantially with the testimony of other eyewitnesses. It is entirely speculative that the evidence of Dolden’s pending aggravated battery charge in another county would have supported the inference that he had anything to gain by testifying falsely at the defendant’s trial. Additionally, the defendant failed to make an offer of proof of this issue. (People v. Washington (1984), 121 Ill. App. 3d 479, 459 N.E.2d 1029.) Further, the evidence against the defendant was overwhelming and any error in this regard was harmless beyond a reasonable doubt. (People v. Johnson (1987), 116 Ill. 2d 13, 506 N.E.2d 563.) We also note that the asserted error was not raised in the defendant’s post-trial motion, and under these circumstances, it was waived. People v. Castiglione (1986), 150 Ill. App. 3d 459, 501 N.E.2d 923.

Defendant’s second contention of evidentiary error, that he was restricted in presenting evidence of the victim’s propensity for violence, is likewise meritless. The defendant, at trial, testified to three instances which he had witnessed where Walters had committed acts of violence. The testimony was corroborated by Maguire. The defendant also presented evidence of a battery conviction of the victim. The evidence not allowed by the court was of two instances of violence by the victim which had not been witnessed by the defendant or by Maguire. We find that the court did not err in excluding this evidence. The evidence at trial was clearly overwhelming that the defendant did not act in self-defense and the jury so found, and the additional testimony of the victim’s propensity for violence would have been unnecessarily cumulative. Likewise, as with the previous evidentiary error raised by the defendant, he failed to include this alleged error in his post-trial motion; therefore, it is waived. Friesland, 109 Ill. 2d 369, 488 N.E.2d 261.

The defendant’s last contention of evidentiary error is that he was improperly impeached by the State’s inquiry into his use of cocaine on the evening of the incident as this constituted evidence of a prior bad act unrelated to a material issue. We disagree. On direct examination, the defendant testified that he had witnessed Hauschild taking cocaine in the bathroom in the garage. The defendant’s theory of self-defense rested partially on his testimony that Hauschild had approached him as he was leaving the party to inform the defendant that he should not speak about what he had seen, and, according to the defendant, to insure this, Hauschild called Walters over to them. This testimony by the defendant entitled the State to inquire into whether he had taken drugs that evening, as the fact that the defendant had taken cocaine with Hauschild, which Hauschild testified to on rebuttal, negated the defendant’s testimony that Walters approached him in order to insure that the defendant did not talk about seeing Hauschild take cocaine. If the defendant had taken cocaine also, then Hauschild would have no reason to be concerned about the defendant telling anyone about Hauschild’s taking of cocaine and the defendant’s credibility was diminished. The State had the right to cross-examine the defendant concerning any matter which would explain, modify or discredit what the defendant said on direct examination. (People v. Strother (1972), 53 Ill. 2d 95, 290 N.E.2d 201.) The fact that the defendant was prejudiced by this testimony did not make it error, for it would be a greater denial of a right of both parties if we were to restrict cross-examination, thereby denying a substantial right and withdrawing one of the safeguards essential to a fair trial. (See People v. Garrett (1976), 44 Ill. App. 3d 429, 358 N.E.2d 364.) Therefore, we find that the State’s inquiry into the use of cocaine by the defendant was not improper impeachment. We also note that as there was no error in any of the separate evidentiary rulings raised by the defendant, that there likewise was no cumulative error depriving him of a fair trial.

The defendant’s last issue raised on appeal is that his sentence of 12 years’ imprisonment was erroneous as the court failed to consider in mitigation that the victim had a violent temperament and that the defendant held the unreasonable belief that self-defense was necessary to protect himself, and that the court improperly considered in aggravation that this sentence was necessary to deter others. Generally, the imposition of a sentence is a matter within the discretion of the circuit court, and, absent an abuse of discretion, a sentence imposed by the court will not be altered upon review. (People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.) At the defendant’s sen-fencing hearing, the trial judge stated that he had considered the presentence report and the evidence presented at trial. The judge also noted that the defendant’s conduct had caused serious harm as the victim was almost dead by the time he reached the hospital and that the victim’s injuries had caused him to remain in the hospital for over a month. The judge stated that the defendant had a history of criminal activity, which showed that the defendant lacked felony convictions; nevertheless, the history revealed that there were battery convictions. Additionally, the judge found that the court’s sentence was necessary to deter others. In considering factors in mitigation, the judge stated he had considered the evidence presented and found that no factors in mitigation applied in this case. Based on these statements by the judge, it is presumed that he properly considered the factors in mitigation and the factors in aggravation presented at the sentence hearing and during trial. (People v. Taylor (1985), 139 Ill. App. 3d 779, 487 N.E.2d 767.) The sentence imposed by the court was for 12 years’ imprisonment, a sentence within the range authorized for the offense of armed violence, a Class X felony. (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8—1(a)(3).) We find that the circuit court did not abuse its discretion when it imposed a 12-year sentence upon the defendant.

Our last consideration is the State’s cross-appeal. The State contends that the circuit court erred in vacating the. defendant’s conviction for obstruction of justice and that if this court would reverse and remand the defendant’s other convictions on appeal, that upon remand, it should have the opportunity to retry the defendant on the obstruction of justice charge. The defendant has filed two motions to dismiss the State’s cross-appeal. Given our disposition of this case, it is unnecessary to consider the State’s cross-appeal. Further, we have reviewed the evidence in this case and find that the circuit court properly vacated the conviction.

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

Affirmed.

GOLDENHERSH and HOWERTON, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE BILANDIC JUSTICE SCARIANO,

license: Public Domain

text:
    DAVID ALLEN GREIL, Plaintiff-Appellant, v. TRAVELODGE INTERNATIONAL, INC., et al., Defendants-Appellees.
    First District (2nd Division)
    Nos. 1—87—2372, 1—87—2762 cons.
    Opinion filed June 30, 1989.

      SCARIANO, J., dissenting.
    James M. Dupree, Aron D. Robinson, and Kevin P. Gadbois, all of Holstein, Mack & Dupree, of Chicago, for appellant.
    Robert Marc Chemers and Robert J. Franco, both of Pretzel & Stouffer, Chartered, of Chicago, for appellees.
   PRESIDING JUSTICE BILANDIC

delivered the opinion of the court:

Plaintiff, David Greil, appeals from the circuit court order dismissing, with prejudice, his action against defendant, LaSalle Ohio Enterprises, Inc. (LaSalle), and a subsequent order granting summary judgment in favor of defendant, Travelodge International, Inc. (International). Each appeal was filed immediately after the respective orders were entered. These appeals, Nos. 87 — 2372 and 87 — 2762, have been consolidated.

On January 22, 1983, plaintiff, David Greil, was a paying guest at a motel located at 545 North La Salle Street in Chicago, Illinois. The motel was advertised, designated and operated under the name “Travelodge in the Heart of Chicago.”

Travelodge International, Inc. (International), is a California corporation duly authorized to do business in the State of Illinois. International owns the trademark “Travelodge” under which it operates a national network of motor hotels principally through the grant of a license to others to use its mark. Such a license was granted for use of the trademark “Travelodge” for the motel at 545 North La Salle Street in Chicago, Illinois.

On January 22, 1983, a robber entered plaintiff’s room at the motel. In an attempt to escape, plaintiff jumped from a window in his second-story room to the sidewalk, thereby sustaining personal injuries. On January 16, 1985, approximately one week before the expiration of the statute of limitations, plaintiff filed a multicount complaint against International, the franchisor, and “Travelodge in the Heart of Chicago.”

Summons and a copy of the complaint were served on “Travelodge in the Heart of Chicago” on February 4, 1985, by leaving a copy with Miss Kathleen O’Brien as agent at the motel office in Chicago. “Travelodge in the Heart of Chicago” filed a special and limited appearance and subsequently filed a motion to dismiss on the ground that it was not a legal entity and, therefore, could not be sued. An affidavit executed by Ludovico Bongiovanni revealed that LaSalle Ohio Enterprises, Inc., an Illinois corporation, was the entity that was granted the license to use the “Travelodge” trade and service marks for the operation of the motel at 545 North La Salle Street in Chicago, Illinois.

This caused plaintiff to file an amended complaint on November 20, 1985, naming LaSalle as an additional party defendant. After receipt of process, LaSalle entered its appearance and a motion to dismiss through the same law firm that appeared for codefendant “Travelodge in the Heart of Chicago.” LaSalle’s section 2 — 619 motion to dismiss (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 619) asserted that the action was barred because it was served on December 4, 1985, which was more than 10 months after the expiration of the two-year statute of limitations.

After a hearing on the “Travelodge in the Heart of Chicago” motion to dismiss and a hearing on LaSalle’s motion to dismiss, the trial court, on January 16, 1987, entered an order granting both motions. “Travelodge in the Heart of Chicago” was dismissed because it was not a legal entity. LaSalle was dismissed because the trial judge decided that the misnomer rule did not apply (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 401); that plaintiff did not come within the requirements of relation back under section 2 — 616 (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 616(d)); and that, therefore, the amended complaint was barred by the statute of limitations (Ill. Rev. Stat. 1987, ch. 110, par. 13-202).

First, we will consider plaintiff’s appeal from the order dismissing LaSalle.

I

Plaintiff presents two questions of law regarding the motion to dismiss LaSalle. The first is whether the circumstances of this action present a case of misnomer. (Ill. Rev. Stat. 1985, ch. 110, par. 2— 401.) The second is whether the relation-back theory of section 2— 616(d) applies. (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 616(d).) Because we find that the circumstances of this action present a case of misnomer, it is not necessary to discuss the merits of relation-back.

Plaintiff contends that he sued the real party in interest, the business operating the “Travelodge in the Heart of Chicago” motel, but did so under the wrong name. Section 2 — 401(b) of the Illinois Code of Civil Procedure provides:

“Misnomer of a party is not a ground for dismissal but the name of any party may be corrected at any time, before or after judgment, on motion, upon any terms and proof that the court requires.” Ill. Rev. Stat. 1987, ch. 110, par. 2 — 401(b).

It is well settled that whether a case involves misnomer depends upon whom plaintiff intended to sue (Ashley v. Hill (1981), 101 Ill. App. 3d 292, 427 N.E.2d 1319, appeal denied (1982), 91 Ill. 2d 551), and whether the real party in interest is sued (Leonard v. City of Streator (1983), 113 Ill. App. 3d 404, 447 N.E.2d 489). A determinative factor in deciding whether misnomer applies is whether the party sued actually exists. Thielke v. Osman Construction Corp. (1985), 129 Ill. App. 3d 948, 951, 773 N.E.2d 574 (“It seems clear that plaintiff did not have a mistaken belief as to the identity of defendant. This conclusion is enforced by the fact that there is no corporation in existence named Osmond”); Clinton v. Avello (1982), 105 Ill. App. 3d 336, 338, 434 N.E.2d 355, appeal denied (1982), 91 Ill. 2d 568 (“The most probative evidence of who a plaintiff intended to sue is the party named by the plaintiff in the complaint. If such a party in fact exists, but is not the real party in interest, a court can conclude that the plaintiff has mistakenly sued the wrong party”).

In Ingram v. MFA Insurance Co. (1974), 18 Ill. App. 3d 560, 309 N.E.2d 690, appeal denied (1974), 56 Ill. 2d 587, the court rejected defendant’s argument that a judgment against it was void because suit was brought in a name that was merely a trade name for a group of insurance companies. Plaintiff sued “MFA Insurance Company” and served a purported agent of MFA. The true name of the company, however, was Countryside Casualty Company, a Missouri corporation. “MFA Insurance Company” was nothing more than a name, a nonentity. In correcting the misnomer and .allowing plaintiff to amend the name of the defendant, the court stated:

“[I]n view of the admissions of record which indicate a telephone listing and the doing of business under the name of MFA Insurance Company, we find that plaintiff’s reliance on the name in designating the defendant was reasonable. Further, the amendment required is not a substantive matter but a formal one and in conformity with the record. [Citations.] We note also that counsel for defendant has appeared on behalf of ‘MFA Insurance Company’ throughout, has filed an affidavit stating he is the attorney for the defendant, MFA Insurance Company. *** Accordingly, we have decided to correct the misnomer ***.”18 Ill. App. 3d at 566.

The identical situation presents itself in the instant case. Plaintiff sued “Travelodge in the Heart of Chicago” and served its purported agent. However, the true name was LaSalle Ohio Enterprises, Inc., an Illinois corporation (LaSalle). Although under the wrong name, plaintiff actually served an agent of LaSalle; Miss Kathleen O’Brien. O’Brien’s duties at the motel include opening the mail and also working behind the desk. Legal documents were forwarded by O’Brien to Ludovico Bongiovanni, the president of LaSalle.

The franchise/license agreement between International and LaSalle was executed on behalf of LaSalle by Ludovico Bongiovanni, President. The agreement authorized LaSalle to use the trademark “Travelodge” for the operation of a motor hotel at 545 North La Salle Street, Chicago, Illinois. That motel is listed in the Chicago telephone directory as “Travelodge in the Heart of Chicago.” LaSalle and “Travelodge in the Heart of Chicago” share the same legal counsel. Thus, all of the vital signs that made a case for misnomer in Ingram are also present in this case.

“Names are nothing. The gist of the matter is, were the parties in interest actually served.” (Pond v. Ennis (1873), 69 Ill. 341, 344.) We therefore conclude that this defendant was aware that “Travelodge in the Heart of Chicago” and LaSalle were one and the same. As in Ingram, “we have decided to correct the misnomer.”

The authorities relied upon by the trial court and defendant are not persuasive. In Leonard v. City of Streator (1983), 113 Ill. App. 3d 404, 447 N.E.2d 489, dramshop plaintiffs sued an individual under the belief that the individual was the owner and operator of a tavern. In fact, the real owner and operator was a corporation. There were two separate entities: an individual and a corporation. Plaintiffs did not misname the right party, but named the wrong party. Thus, there was no misnomer.

Similar facts exist in Marsden v. Neisius (1955), 5 Ill. App. 2d 396, 126 N.E.2d 44. In that case, plaintiff brought an action naming a corporation as defendant. The real defendant was an individual. Thus, again there are two separate entities: an individual and a corporation. As in Leonard, the plaintiff did not misname the right party, but named the wrong party. It was a mistake and not a misnomer.

In the case at bar there was only one entity; not two separate entities. Plaintiff intended to sue the company operating as “Travelodge in the Heart of Chicago.” Plaintiff served the registered agent of LaSalle when the true name of the corporation was discovered. This was done despite the fact that O’Brien could have been served as an agent of the corporation. (See A-Z Equipment Co. v. Moody (1980), 88 Ill. App. 3d 187, 410 N.E.2d 438.) Plaintiff served the proper physical party because the agent served for “Travelodge in the Heart of Chicago” is also an agent of LaSalle. The only defect is that the correct name is LaSalle. Same entity, wrong name.

Code pleading was adopted in this State because procedural pitfalls of common law pleading often denied litigants an opportunity to have their differences determined on the merits. (Miller v. Enslen (1978), 60 Ill. App. 3d 865, 868, 377 N.E.2d 282.) The Code of Civil Procedure provides that “[t]his Act shall be liberally construed, to the end that controversies may be speedily and finally determined according to the substantive rights of the parties.” (Emphasis added.) Ill. Rev. Stat. 1985, ch. 110, par. 1 — 106.

One purpose of the misnomer provision of the Code is to avoid dismissal of cases on a purely technical basis and to allow the action to reach its substantive merits. The spirit and letter of the Code make this a case of misnomer which the plaintiff has a right to correct. The trial court erred in depriving the plaintiff the opportunity to correct the misnomer.

II

Plaintiff next argues that the trial court erred in granting summary judgment in favor of International, contending that there is a question of material fact as to the relationship between International and LaSalle.

International is a corporation organized and existing under the laws of the State of California. It is duly qualified to do business in the State of Illinois. On June 1, 1978, it entered into a franchise/license agreement with LaSalle, an Illinois corporation. This agreement gave LaSalle the right to use International’s “Travelodge” trademarks and service marks in the operation of a motel located at 545 North La Salle Street in Chicago, Illinois. LaSalle agreed to pay International a fee and to maintain the high standards of International’s “Travelodge” trade and service marks, by agreeing to operate and maintain the motel “in a clean, safe and orderly manner.” (Emphasis added.) LaSalle agreed to follow the standards and procedures set forth in the operations manual provided by International. Deviation was not permitted without the written consent of International.

International was also granted the right to supervise the motel operations. LaSalle was required to send its personnel responsible for management of the motel to International’s training program. These and other provisions were designed to insure that LaSalle’s operation under the “Travelodge” mark would “maintain the highest standards of hospitality.” Substantial violation of these covenants by LaSalle could result in a cancellation of the license granted by International. LaSalle was also required to indemnify and hold International harmless for personal injuries arising in connection with its operations of the motel and to place public liability insurance “for the benefit” of International as well as LaSalle.

The trial court granted International’s motion for summary judgment because it could find nothing in the pleadings or the franchise/ license agreement that indicated International may have been responsible for the safety provisions alleged to have been breached. The trial court also held that plaintiff’s argument that the agreement at least created an apparent agency was immaterial.

The business franchise system provides an effective means by which to increase sales of trademark goods or services. It begins with a sale by the franchisor to the franchisee of a license to use that particular trademark. Under the Lanham Act, the owner of a trademark may license the mark provided that he adequately controls the licensee. (15 U.S.C. §1127 (1982).) The criterion regarding the control necessary to satisfy the Lanham Act is whether such control guarantees that third parties dealing with the franchisee will receive goods or services of the quality which they have learned to associate with the trademark. (S. Rep. No. 1333, 79th Cong., 2d Sess. (1946).) Depending upon the control expressed in the franchise agreement, either an actual agency or ostensible agency may be found.

In its motion for summary judgment, International referred to provisions of the license agreement and principally cited Illinois authorities. Whether by inadvertence or deliberate design, International did not call the trial court’s attention to significant provisions in the agreement which state that the agreement was “entered into at El Cajon, California” and “shall be governed by and construed in accordance with the laws of the State of California.” While International did not deny that California law applied, it chose not to emphasize that point. The application of California law, as required by the agreement, leads us to the conclusion that the trial court erred in granting summary judgment for International.

California law is clear that a franchisee may be deemed to be the agent of the franchisor and that the question of whether the franchisee is an agent is ordinarily one of fact. (Kuchta v. Allied Builders Corp. (1971), 21 Cal. App. 3d 541, 98 Cal. Rptr. 588.) California courts have found both types of agency to exist in the franchise context. Beck v. Arthur Murray, Inc. (1966), 245 Cal. App. 2d 976, 54 Cal. Rptr. 328 (ostensible agency); Nichols v. Arthur Murray, Inc. (1967), 248 Cal. App. 2d 610, 56 Cal. Rptr. 728 (actual agency).

An actual agency exists if the franchisor has imposed controls beyond that necessary to protect its trademark. (62 Am. Jur. 2d Private Franchise Contracts §16 (1972).) Courts generally look to the extent of the franchisor’s involvement in day-to-day operations, noting that what is important is the extent of control which the franchisor is permitted to exercise, rather than that which it actually exercised. (Nichols v. Arthur Murray, Inc. (1967), 248 Cal. App. 2d 610, 56 Cal. Rptr. 728.) Courts will look at the franchise agreement as well as operating and training manuals for evidence of control.

In the franchise agreement, terms dictating that the facility be built and maintained according to specifications and requiring certain operational procedures are indicia of control as well as the requirement that the franchisee permit regular inspections by franchisor’s inspectors to ensure compliance with procedures. (Wood v. Holiday Inns, Inc. (5th Cir. 1975), 508 F.2d 167.) Also, terms providing that substantial violations of any of the covenants of the franchise agreement give the franchisor the right to cancel the license have been held to be indicative of control. (508 F.2d at 175.) Other examples of control include minimum price fixing (508 F.2d at 174); approval by franchisor of all advertising (508 F.2d at 177); profit sharing (Arthur Murray, Inc. v. Smith (1971), 124 Ga. App. 51, 183 S.E.2d 66); and book auditing (Kuchta v. Allied Builders Corp. (1971), 21 Cal. App. 3d 541, 98 Cal. Rptr. 588).

The plaintiff had a right to expect a “clean, safe and orderly” accommodation at premises bearing the “Travelodge” mark. It is obvious that the agreement between International and LaSalle was designed to provide a guest and invitee with such accommodations by maintaining the “highest standards of hospitality.”

The intrusion of a criminal committing a robbery in plaintiff’s room at the motel and causing the plaintiff to jump from his second-story room to the sidewalk below, at least, creates a disputed question of fact as to whether International, LaSalle, or both failed to provide plaintiff with “clean, safe and orderly” accommodations and failed to maintain the “highest standards of hospitality.”

The license agreement gave International the right to inspect LaSalle’s operation under the “Travelodge” mark. It exercised this right on a frequent and regular basis. Among the many items checked, found deficient, and called to LaSalle’s attention for correction were matters involving the safety of guests. We note from the record that lighting of the parking area, locks on the premises and latches and locks on windows were called to the attention of LaSalle for correction. Whether the intrusion of the criminal into the room of the plaintiff, or other guests, might or could have been prevented creates a question of material fact.

We, therefore, conclude that the pleadings, license agreement and its incorporated operations manual sufficiently involve International in day-to-day operations of the motel to raise a question of fact as to whether an actual agency relationship existed between International and LaSalle.

In addition to actual agency, a franchisor may be held liable as principal for the acts and omissions of a franchisee where the franchisee has ostensible authority to act for the principal. If a third party reasonably believes that the franchisee is authorized to bind the principal, or is acting for the principal, an agency relationship may be held to have been created. See Beck v. Arthur Murray, Inc. (1966), 245 Cal. App. 2d 976, 54 Cal. Rptr. 328.

Courts are influenced by such factors as common advertising, common telephone listings, and common trademark usage in signs, posters, or cards. All these factors are present in the instant case. Further, there is no evidence in the record to indicate that third parties were informed that the motel in question operating in Chicago under the “Travelodge” mark was distinct and independent from International. See Beck, 245 Cal. App. 2d 976, 54 Cal. Rptr. 328 (obvious disclaimer sign may shield franchisor from liability).

We therefore also conclude that the issue of ostensible agency between International and LaSalle, based on the record before us, presents a disputed question of fact.

The franchise system depends on an effective monopoly, in which a franchisee will pay to participate. (Comment, Liability of a Franchisor for Acts of the Franchisee, 41 S. Cal. L. Rev. 143 (1968).) The franchisor is the primary benefactor; thus, the franchisor is in the better position to distribute losses. (Comment, A Franchisor’s Liability for the Torts of his Franchisee, 5 U.S.F. L. Rev. 118 (1970).) Imposing liability on the franchisor is a strong incentive for franchisors to exercise great care in selecting their franchisees and, in turn, protect the public interest. See Comment, A Franchisor’s Liability for the Torts of his Franchisee, 5 U.S.F. L. Rev. 118, 122 (1970).

Summary judgment should not be granted unless the pleadings, depositions, admissions and affidavits “show that there is no genuine issues as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 1005(c).) The summary judgment tool is not used to try an issue of fact, “but rather to determine whether one exists.” (Weber v. Northern Illinois Gas Co. (1973), 10 Ill. App. 3d 625, 635, 295 N.E.2d 41.) Hence, if all the evidence is viewed most favorably for the nonmovant and facts are present upon which reasonable persons could disagree or if they lead to inferences that can be fairly drawn and present different conclusions, then summary judgment should not be granted. Nolan v. Johns-Manville Asbestos & Magnesia Materials Co. (1979), 74 Ill. App. 3d 778, 794, 392 N.E.2d 1352, aff’d (1981), 85 Ill. 2d 161, 421 N.E.2d 864.

Based on the record in this case, there is a genuine issue of material fact as to the existence of an actual or ostensible agency relationship between International and LaSalle. Therefore, we find that the trial court erred in granting summary judgment in favor of International.

Accordingly, the judgment of the circuit court of Cook County is reversed and this cause is remanded for further proceedings consistent with the view expressed herein.

Reversed and remanded.

PINCHAM, J., concurs.

JUSTICE SCARIANO,

dissenting:

I respectfully dissent.

MISNOMER

The majority relies on Ingram v. MFA Insurance Co. (1974), 18 Ill. App. 3d 560, 209 N.E.2d 690, in support of its determination that this is a case of misnomer rather than mistaken identity. In that case, a default judgment was entered against defendant and the trial court subsequently denied defendant’s motions for entry of an order quashing the summons and to vacate the judgment. On appeal, defendant argued that MFA Insurance Co., a trade name under which four companies, MFA Mutual Insurance Co., Countryside Casualty Co., MFA Security Finance Co., and MFA Life Insurance Co., did business was a nonentity and that, therefore, service on an agent for these companies was not service on an agent for MFA Insurance Co. The court refused to quash the summons, holding that under all the evidence presented, service was obtained on an agent for defendant. The agent, Campbell, testified that MFA Insurance Company was an umbrella organization which “controll[ed] or governed]” Countryside Casualty Company, MFA Mutual Insurance Company and MFA Life Insurance Company. (18 Ill. App. 3d at 564.) An attorney for MFA Mutual Insurance Company testified that Campbell was an agent for the four companies doing business under the trade name of “MFA Insurance Company.” There was also testimony that defendant received and cashed checks made payable to MFA Insurance Company. Based on this evidence, the court held that Campbell was a proper agent for service for defendant.

The court also declined to vacate the judgment, stating that defendant’s argument that MFA Insurance Company was a nonentity was “without merit. Where summons is served upon a party and the circumstances are such as to indicate that he is the person intended to be sued, he is subject to the judgment even though the process and judgment do not refer to him by his correct name.” 18 Ill. App. 3d at 566.

The appellate court then granted plaintiff’s motion to amend the name of the party defendant to Countryside Casualty Co., a Missouri Corporation, d/b/a MFA Insurance Co. The court noted that the amendment was not a substantive one; that a telephone listing and the doing of business were under the name MFA Insurance Co.; that counsel for defendant appeared on behalf of MFA Insurance Co. and filed an affidavit stating that he is the attorney for that concern; that policies were issued under the heading MFA Insurance Co.; and that a request for admission of fact had been answered by an attorney for MFA Insurance Co. 18 Ill. App. 3d at 566.

Ingram does not address the issues in the case at bar because there the court held that MFA Insurance Company was an entity capable of being sued. Here, the trial court relied on Marsden v. Neisius (1955), 5 Ill. App. 2d 396, 126 N.E.2d 444, in holding that the instant case does not involve misnomer.

In Marsden, plaintiff sued to recover damages suffered as a result of being struck by a truck, naming “C. & H. Transfer Company, a Wisconsin Corporation,” as defendant. Summons was served upon Arthur Rodden as agent for the corporation, and Rodden forwarded it to Edward Neisius. An answer was filed, and as a separate defense Neisius alleged that he “engaged in a business conducted as a proprietorship under the name and style £C. & H. Transfer,’ ” that Rodden was his agent to receive process, that he did receive service through Rodden, and that there was no “C. & H. Transfer” corporation. Mars-den subsequently amended his complaint to name Edward Neisius, d/b/a C. & H. Transfer, as defendant. The trial court granted Neisius’ motion to dismiss, in which he contended that he was sued after the applicable status of limitations had run, but the appellate court reversed, stating:

“Undoubtedly, the plaintiff intended to sue a corporation ***. The plaintiff surely alleged the £C. & H. Transfer Company, a Corporation’ was involved, but it is later alleged by an answer that there is no £C. & H. Transfer Company, a Corporation’; there is a ’C. & H. Transfer,’ for Edward J. Neisius informs the plaintiff in his answer that he had notice of the suit, and that he is doing business under the style of £C. & H. Transfer.’
We believe that under these facts and circumstances Edward J. Neisius thereby implies that he is the one intended to be sued, and we believe that by filing this answer, Edward J. Neisius, suggests and concedes that there is a misnomer. [Citation.] Having filed his answer as such we believe that he is estopped from now asserting there is no misnomer. But without the answer of Edward J. Neisius in the form as filed herein, we would agree with appellee that there is a mistake in identity, of the person sued, and we would then *** hold that the cause of action did not accrue until the filing of the amended complaint *** and the suit would consequently *** be barred by the statute of limitations.” Marsden, 5 Ill. App. 2d at 400-01.

Ingram and Marsden are both second district cases; however, MFA neither discussed, distinguished nor overruled Marsden, because the two cases involved different facts and applied separate and distinct principles of law. In Marsden, plaintiff sued a nonentity but the court held that because defendant had filed an answer, he was estopped from asserting that there was no misnomer. As noted previously, and contrary to the majority’s assertion, the court in Ingram rejected defendant’s argument that the named defendant was a nonentity.

The majority seems to suggest that because LaSalle did business under the name “Travelodge in the Heart of Chicago,” it should be prepared to defend a suit under that name. That is not the law. The majority fails to cite any conduct on the part of LaSalle which would estop it from asserting that there is no misnomer; I do not believe the fact that it was listed under “Travelodge” in the Chicago telephone directory is a basis for denying LaSalle its right to be sued in its proper name. In this regard, I note that there is no allegation that LaSalle violated the assumed name statute (Ill. Rev. Stat. 1985, ch. 96, par. 4) or the Business Corporation Act of 1983 (Ill. Rev. Stat. 1985, ch. 32, par. 4.05), or any other law. The fact that the name of the motel was “Travelodge in the Heart of Chicago,” with no “Inc.,” “Corp.,” “Ltd.,” or “Co.” at the end of its name, any of which designations is required to signify that it was a corporation (Ill. Rev. Stat. 1987, ch. 32, par. 4.05), should have alerted plaintiff that the motel was operating under an assumed name, as is quite legal and proper in Illinois. (Ill. Rev. Stat. 1987, ch. 96, par. 4.) Plaintiff could easily have checked the index of assumed names at the office of the Cook County clerk and learned that defendant’s proper name is LaSalle Ohio Corporation, d/b/a Travelodge in the Heart of Chicago. (Ill. Rev. Stat. 1987, ch. 96, par. 6.) This simple step was apparently not taken. To excuse plaintiff’s failure to investigate is to reward indolence; in addition, the court penalizes a defendant which scrupulously followed the law.

SUMMARY JUDGMENT

Although the license agreement does state that it shall be construed in accordance with California law, both plaintiff and Travelodge International argued Illinois law in the trial court and in this court, totally oblivious to the provisions of the agreement as to the applicable law. Moreover, neither party cited any of the cases relied upon by the majority; in fact, they cited no California law at all. The majority opinion places the burden on Travelodge International to bring this choice of law provision to the trial judge’s attention and, while I do not disagree that all parties have a responsibility to bring relevant facts and points of law before the court, I believe it should be pointed out that plaintiff at no time directed the court’s attention to either California law or the provision in the agreement signifying the law applicable to its provisions.

It goes without saying that the parties may frame the issues in litigation as they choose; accordingly, it is not the proper function of this court to become an advocate or to raise matters in which the parties clearly have no interest. Nor is it fair to the circuit court judge to reverse him on an issue not raised before him by any of the parties. The principle is a bit too hoary for us to be toying with it now. Therefore, I do not believe California law is applicable to this issue.

Nor do I believe .that the trial court erred in granting defendant’s motion. In his response to Travelodge International’s motion for summary judgment and in the hearing on that matter, plaintiff relied upon the following provisions in the license agreement to support his allegation that Travelodge International was responsible for the lack of security in the hotel:

“6(a). Licensee agrees to maintain its premises and accommodations in a clean, safe and orderly manner;
6(e). Licensee agrees to repair and paint the exterior and interior of building at reasonable times and to maintain the exterior and interior of buildings in a clean, orderly and sanitary condition;
6(f). Licensee agrees to permit inspection by licensor;
6(k). Licensee agrees to send its management and operation personnel to licensor’s training program;
12(a). Licensor agrees to consult with licensee;
12(e). Licensor agrees to maintain supervision;
13. Licensee agrees to refrain from alteration or construction unless licensor approves plans; and
15. Licensee agrees to hold licensor harmless and to indemnify licensor.”

The majority relies primarily on 6(a) in holding that there is a question of fact as to whether Travelodge International can be held responsible for the safety violations alleged to have been violated here.

In granting Travelodge International’s summary judgment motion, the trial court stated:

“[T]he issues relating to motions for summary judgment are framed by the pleadings. And the pleadings specifically set forth in Paragraph 4A through N, [are] matters dealing with security and criminal attacks by third parties. Specifically, the failure to warn the plaintiff relating to the risk of criminal attacks. Failure to properly provide, failing to provide locking door[s]. Prohibit the entrance by unauthorized persons onto the premises. Failure to provide safety measures. Failure to provide sufficient peepholes, or night chains, or an electronic surveillance or security staffs. Safety devices and measures in 4B. Evaluate security needs in 4C. And several sub-sections alleged in the — in more general terms. But all these sub-paragraphs which are alleged to be the breach of duty by the defendant is [sic] absolutely nowhere indicated as being substantiated by the response of the motion for summary judgment.
The law is clear as far as motions for summary judgment is [sic] concerned that the plaintiff-respondent need not prove his case at the summary judgment stage. *** [MJany other cases indicate that; but they also indicate that the responding plaintiff must at least set forth some facts that arguably indicate a cause of action. *** I don’t see one iota of fact whatsoever as set forth in the license agreement or any other documents or anything else in response to the motion that indicates arguably any facts that Travelodge International, Inc., had anything to do with these items spelled out in Paragraph 4 of the amended complaint.”

The question of the responsibility of the owner of a franchise trademark for the torts of its franchisee was discussed in Coty v. U.S. Slicing Machine Co. (1978), 58 Ill. App. 3d 237, 272 N.E.2d 1371. In that case, an employee of a Yankee Doodle Dandy restaurant, the franchisee, sued the franchisor on a theory of negligence and willful and wanton misconduct, as well as the manufacturer of the machine she had been using when injured. Under the franchise agreement “numerous restrictions were imposed upon the franchisee relating to the general nature of the operation of the restaurant, [with the principal goal of] protecting the Yankee Doodle trademark and the good will associated with it.” (58 Ill. App. 3d at 239.) The franchisee agreed that its managers would be trained by the franchisor, its employees would wear distinctive uniforms, and it would comply with the franchisor’s rules on minimum hours and days of service and on contributions and participation in advertising programs. The franchisee was also required to comply with all Federal, State and local laws. The franchisor did not retain any day-to-day control, and it could not hire or fire anyone, stop work immediately or give orders to the franchisee’s employees. The franchisor was required to give a 10-day written notice demanding cure of any breach of the franchise agreement by the franchisee, and could terminate the agreement if such cure was not forthcoming. (58 Ill. App. 3d at 240.) The appellate court affirmed a directed verdict for the franchisor, holding that the “general right to rescind the contract or ‘call off work’ is insufficient *** to subject the franchisor to liability under either agency or employer-independent contractor theories.” 58 Ill. App. 3d at 242.

In so deciding the court relied on Murphy v. Holiday Inns, Inc. (1975), 216 Va. 490, 219 S.E.2d 874. In that case, plaintiff had slipped and fallen at a Holiday Inn owned by the Betsy-Len Corporation, a franchisee. She sued the franchisor on the theory that it owned and operated the motel and that its agents and employees were negligent. The appellate court affirmed the trial court’s granting of summary judgment in favor of the franchisor, finding that there was no principal-agent or master-servant relationship under the franchise agreement. That agreement provided that the franchisee contribute to advertising campaigns and that its managers be trained by the franchisor, and that the franchisee operate its motel under the “system” which included the trademark, color schemes, furnishings, advertising services and methods of operation. (Coty, 58 Ill. App. 3d at 240.) The court stated:

“ ‘Having carefully considered all of the regulatory provisions in the agreement, we are of the opinion that they gave defendant no “control or right to control the methods or details of doing the work,” *** and, therefore, agree with the trial court that no principal-agent or master-servant relationship was created. *** The regulatory provisions did not give defendant control over the day-to-day operation of Betsy-Len’s motel. While defendant was empowered to regulate the architectural style of the buildings and the type and style of furnishings and equipment, defendant was given no power to control daily maintenance of the premises. Defendant was given no power to control Betsy-Len’s current business expenditures, fix customer rates, or demand a share of the profits. Defendant was given no power to hire or fire Betsy-Len’s employees, determine employee wages or working conditions, set standards for employee skills or productivity, supervise employee work routine, or discipline employees for nonfeasance or misfeasance. All such powers and other management controls and responsibilities customarily exercised by an owner and operator of an on-going business were retained by Betsy-Len.’ ” Coty, 58 Ill. App. 3d at 241, quoting Murphy v. Holiday Inns, Inc. (1975), 216 Va. at 495, 219 S.E.2d at 877-78.

In Yassin v. Certified Grocers of Illinois, Inc. (1987), 150 Ill. App. 3d 1052, 502 N.E.2d 315, plaintiff, a three-year-old child, was injured when she placed her left hand in an operating commercial meat tenderizer. She sued Mizyed-Yassin Corporation, the owner of the grocery store where the accident took place, Certified, a cooperative with which the grocery store was affiliated, the company that manufactured the tenderizer and an independent testing laboratory. The appellate court upheld the circuit court’s directing of a finding for Certified, citing Coty and stating:

“[I]n the present case, Certified had, at most, a franchise relationship with Mizyed-Yassin Corporation, and its franchise agreement dealt only with methods of payment and procedures for delivery of goods the franchisee ordered from it — not safety. Certified’s only remedy for a violation of its rules was to withdraw permission to use its name and terminate the agreement. Plaintiff’s father and her uncle both testified that they exercised day-to-day control over the grocery store and that they alone had the power to hire and fire employees. There was no agent-principal relationship and no evidence that Certified had the authority to compel or prevent Mizyed-Yassin or its employees from operating the tenderizer in a manner that resulted in plaintiff’s injury. We conclude that Certified cannot be held liable in this case under a principal-agent theory.” 150 Ill. App. 3d at 1069.

The franchise agreement in the instant case is similar to those in Coty, Murphy and Yassin. Travelodge International did not have daily control over the upkeep of the premises and was not responsible for safety measures, or lack thereof, at “Travelodge in the Heart of Chicago.” Travelodge International’s only remedy for a violation of its agreement with LaSalle was to terminate the franchise agreement, and “[tjhis general right to rescind the contract *** is insufficient *** to subject the franchisor to liability under either agency or employer-independent contractor theories.” (Coty v. U.S. Slicing Machine Co. (1978), 58 Ill. App. 3d 237, 242, 373 N.E.2d 1371; Yassin, 150 Ill. App. 3d at 1068.) Therefore, Travelodge International cannot be held liable for LaSalle’s alleged safety violations, and the trial court properly granted summary judgment in its favor.