text:
    G.M. SLOAN MOSAIC AND TILE COMPANY, Plaintiff-Appellee, v. NEWMAN/LUSTIG AND ASSOCIATES, Defendant-Appellant (Michael Lustig, Appellant).
    First District (3rd Division)
    No. 1—88—3139
    Modified on denial of rehearing July 18,1990.
    Opinion filed May 23, 1990.

      Arvey, Hodes, Costello & Burman, of Chicago (Lawrence C. Rubin and Frank P. Tighe III, of counsel), for appellants.
    Landau, Omahana & Kopka, Ltd., of Chicago (Susan Gunty and Nancy Salomone, of counsel), for appellee.
   PRESIDING JUSTICE CERDA

delivered the opinion of the court:

Plaintiff, G.M. Sloan Mosaic & Tile Co., recovered breach of contract damages after a jury trial against defendant, Newman/Lustig & Associates. Michael Lustig (Lustig) and defendant appeal from the trial court’s award of attorney fees and costs against them, and defendant also appeals from an award against it of prejudgment interest.

Plaintiff’s amended complaint alleged that defendant owed plaintiff $13,100 under a contract for goods and services but refused repeated demands for payment.

Defendant’s answer, which was verified by Lustig as defendant’s president and which was filed on August 18, 1986, denied that plaintiff provided any services and materials to it, that plaintiff demanded payment, that defendant refused to pay, that defendant entered into any agreements with plaintiff, and that defendant was liable for the debt. Defendant alleged that any services were provided to Gardner & North Construction Company (Gardner) and that inadequate materials provided by plaintiff were delivered late and in a disruptive manner that injured defendant.

Plaintiff moved for summary judgment on January 22, 1988. The supporting affidavit of Jerry Janik, an employee of plaintiff, swore that Atul Karkanis signed the contract and that plaintiff performed the resilient tiling work according to the contract. Defendant’s response to the motion filed March 24, 1988, argued that there were disputed issues of fact whether plaintiff had an action against defendant or against Gardner and whether plaintiff was entitled to recover due to its failure to timely perform the contract. Lustig’s supporting affidavit was also filed March 24, 1988, and stated that: (1) Gardner was the general contractor in connection with construction work performed at K&S Photographies, Inc.; (2) defendant was the architect; (3) Gardner orally employed plaintiff to perform the tile subcontract; (4) plaintiff failed to perform the work prior to December 28, 1984; (5) plaintiff requested a written confirmation of the contract that was prepared with a definite completion date of January 4, 1985; (6) plaintiff did not complete the work until March 1, 1985; (7) plaintiff never completed all the required work; and (8) Atul Karkanis was Gardner’s employee and was not authorized to contract on behalf of defendant.

Plaintiff's motion for summary judgment was denied, and on June 23, 1988, a jury returned a verdict in favor of plaintiff for $12,400. The trial transcript does not appear in the record, but filed as a supplemental record by plaintiff was a copy of defendant’s exhibit No. 1, a May 7, 1985, letter in which plaintiff requested payment of $12,400 from Lustig prior to anything being “done about the 2nd or 3rd. [sic] floor.”

Plaintiff filed a motion on July 19, 1988, for attorney fees and expenses pursuant to section 2—611 of the Illinois Code of Civil Procedure (111. Rev. Stat. 1987, ch. 110, par. 2—611) on the basis that defendant’s verified answer denied that plaintiff provided any services and materials to defendant, that defendant owed plaintiff $13,100, that plaintiff demanded payment, and that defendant refused to pay. Plaintiff argued that defendant had no reasonable cause to make these denials and that the jury had found these denials to be untrue. Plaintiff further argued that defendant’s failure to produce any credible evidence to establish its denial of its contractual allegations demonstrated that defendant knew its denials were false. Allegedly as a result of these denials, plaintiff had to proceed to trial to collect the debt at a cost of $7,329.67. Attached as an exhibit to the motion was an itemized statement of plaintiff’s attorney’s services, which included pretrial work.

Plaintiff also filed a motion for an award of prejudgment statutory interest of $2,089.02. Plaintiff argued that the contract was an instrument of writing within the meaning of the Illinois statute governing payment of prejudgment interest (Ill. Rev. Stat. 1987, ch. 17, par. 6402) and that the amount of the debt was ascertainable.

The trial court found that plaintiff was entitled to prejudgment interest because the amount of the debt was easily ascertainable by simple and certain computation, because an exhibit admitted into evidence indicated that this amount was demanded prior to the completion of further work, and because defendant made no effort to settle or to participate meaningfully before pretrial conferences.

After plaintiff’s attorney testified that the total attorney fees would be $7,329.67, the trial court granted the motion for attorney fees. The trial court noted that Lustig had “invited” the lawsuit, found that defendant’s defense was frivolous, and imposed sanctions of fees of $6,920 and disbursements of $380.64 against Lustig personally.

Lustig and defendant argue on appeal that: (1) the trial court erred in imposing sanctions against Lustig because the version of section 2—611 in effect at the time defendant filed its answer subjected only the party pleading the untrue allegations to sanctions (Ill. Rev. Stat. 1985, ch. 110, par. 2—611); (2) the trial court violated Lustig’s due process rights to notice and the opportunity to defend himself because plaintiff had sought fees only against defendant and not against Lustig; (3) plaintiff did not allege or establish that defendant’s denials were untrue; (4) the verdict in plaintiff’s favor was insufficient under section 2—611 to establish an untrue denial; (5) the fact that the verdict was for an amount less than that prayed for demonstrated as a matter of law the reasonableness of defendant’s denial of damages and that defendant’s answer was not sanctionable; (6) the jury’s verdict in a smaller amount demonstrated that even if defendant had admitted liability, defendant was entitled to a trial on damages, and that, therefore, sanctions were improper because plaintiff’s trial expenses could not have been caused by defendant’s pleading; and (7) plaintiff provided a statement of all the fees and costs incurred without designating those expenses it incurred as a result of defendant’s denial of liability.

Procedural due process requires notice, an opportunity to respond, and a hearing before sanctions may be imposed. (See Roadway Express, Inc. v. Piper (1980), 447 U.S. 752, 767, 65 L. Ed. 2d 488, 501-02, 100 S. Ct. 2455, 2464 (attorney fees should not be assessed as a sanction without fair notice and an opportunity for a hearing on the record); Miranda v. Southern Pacific Transportation Co. (9th Cir. 1983), 710 F.2d 516, 522 (sanctions should not be imposed against attorneys without notice, an opportunity to respond, and a hearing).) Sanctions were sought by plaintiff only against defendant so that non-party Lustig did not have fair notice, prior to the trial court’s sua sponte imposition of sanctions against him, of the possibility that he would be sanctioned. Lustig was thereby deprived of a meaningful opportunity to defend his actions. On this basis, the trial court’s imposition of sanctions against Lustig is reversed.

It is also argued that sanctions could not be imposed because the untruth of the denial was not established because the verdict was less than what was prayed for in the complaint. It is argued that the jury verdict in favor of plaintiff is insufficient to establish the untruth of defendant’s denial, but the cases cited do not so hold; instead, they hold that the resolution of issues in favor of the movant for sanctions does not necessarily establish that the respondent acted without reasonable cause or in bad faith. (Tower Oil & Technology Co. v. Buckley, 99 Ill. App. 3d 637, 650, 425 N.E.2d 1060 (reasonable cause); Farnor v. Irmco Corp. (1979), 73 Ill. App. 3d 851, 858-59, 392 N.E.2d 591 (bad faith); Laff v. Chapman Performance Products, Inc. (1978), 63 Ill. App. 3d 297, 314, 379 N.E.2d 773 (without reasonable cause); Theodorou v. Community Builders, Inc. (1972), 6 Ill. App. 3d 277, 280, 285 N.E.2d 474 (bad faith or without reasonable cause).

Review of the issue whether defendant’s answer was untrue is hampered because of the absence from the record of the trial transcript, which would have indicated the reason for the smaller verdict. (Cf. Brandel Realty Co. v. Olson (1987), 159 Ill. App. 3d 230, 234, 512 N.E.2d 85 (record that did not include transcript of all the proceedings on the merits of the original complaint was sufficient for review of sanctions and prejudgment interest issues).) Defendant and Lustig argue that the verdict was less than what was sought because of plaintiff’s untimely performance, but there is nothing in the record to support this argument. It can only be presumed from this record that the jury rejected defendant’s defense because it rendered a verdict in substantially the amount prayed for by plaintiff.

It is also argued that the fact that plaintiff was not awarded the entire amount sought demonstrated that a trial on damages was mandated and that the trial expenses were not the result of defendant’s pleading. Defendant and Lustig cite Farwell Construction Co. v. Ticktin (1980), 84 Ill. App. 3d 791, 810, 405 N.E.2d 1051, in support, but in that case section 2—611 sanctions were not in issue; rather, in the context of the prejudgment interest statute, the court found the significant difference between the amount awarded and the amount demanded was an indication that the owed amount was not readily ascertainable.

If false allegations made without reasonable cause are the “cornerstone of the entire baseless lawsuit,” it can be said that the expenses and fees incurred in defending the suit were incurred by reason of the untrue pleadings, and an “isolated focus on each reimbursable component” is not necessary. (Dayan v. McDonald’s Corp. (1984), 126 Ill. App. 3d 11, 23-24, 466 N.E.2d 945; see also Mari v. Westinghouse Broadcasting Co. (1989), 179 Ill. App. 3d 321, 323, 534 N.E.2d 526 (the false allegations were not the cornerstone of the entire action so that there would have been no dispute about them).) In Dayan, plaintiff’s challenge to certain fees as not directly relating to the untrue allegations in particular paragraphs of the complaint was rejected on this basis.

The trial transcript would probably have been pertinent on the issue of the necessity for a trial on damages. Appellant did not file a complete record on appeal that is required by Supreme Court Rule 321 (107 Ill. 2d R. 321 (the record on appeal shall include the entire original common law trial court record)), and it is the appellant’s duty to present everything necessary to decide the issues on appeal (Brandel Realty Co. v. Olson (1987), 159 Ill. App. 3d 230, 233, 512 N.E.2d 85). The amount of the verdict was close enough to what was sought that it should be presumed that the jury found substantially in favor of plaintiff, and it should be concluded that but for the untrue pleading, plaintiff would not have incurred the trial expenses.

This conclusion also provides the basis for rejecting the other argument that plaintiff was not entitled to an award of fees and expenses because it did not differentiate between those fees incurred as a result of the denial of liability and as a result of the denial of the claimed damages. But the additional argument that the trial court erred in awarding costs and fees incurred by plaintiff prior to receiving the amended answer can be addressed.

The version of section 2—611 that was in effect at the time of defendant’s answer provided that the pleading party was subject to the payment of expenses incurred by reason of the untrue pleading. (Ill. Rev. Stat. 1985, ch. 110, par. 2—611.) The statute did not authorize expenses incurred prior to the untrue pleading. Plaintiff cites Dayan (126 Ill. App. 3d at 23-24), which rejected a claim that legal work not directly related to untrue allegations was not compensable under section 2—611 on the basis that an isolated focus on each reimbursable component part of preparation and trial was unnecessary where the false allegations made without reasonable cause were the cornerstone of the entire baseless lawsuit. But the sanctioned party in Dayan did not challenge prepleading expenses (in fact, plaintiff could not have done so because the false allegations were contained in his complaint which initiated the lawsuit).

We hold that the trial court could award only those expenses incurred by reason of the untrue answer, i. e., those incurred after the filing of defendant’s answer. Defendant suggests that expenses following only the amended answer could be awarded, but the first answer also denied liability and asserted that services and goods had been provided by plaintiff to a third party. More importantly, plaintiff requested sanctions because of defendant’s answer rather than the amended answer.

Defendant next argues that the trial court erred and abused its discretion in awarding prejudgment interest because the amount due was ascertainable only by a jury and that the jury’s refusal to award plaintiff the full amount sought precluded the recovery of prejudgment interest because it demonstrated that the amount due was not liquidated. One of plaintiff’s responsive arguments is that prejudgment interest was proper because defendant withheld money by an unreasonable and vexatious delay of payment.

The statutory prejudgment interest provision states:

“Creditors shall be allowed to receive at the rate of five (5) per centum per annum for all moneys after they become due on any bond, bill, promissory note, or other instrument of writing; on money lent or advanced for the use of another; on money due on the settlement of account from the day of liquidating accounts between the parties and ascertaining the balance[;] on money received to the use of another and retained without the owner’s knowledge; and on money withheld by an unreasonable and vexatious delay of payment.” Ill. Rev. Stat. 1987, ch. 17, par. 6402.

A claimant must either establish the debtor’s fraudulent conduct or show that his opponent threw obstacles in the way of collection or otherwise induced claimant to delay collection proceedings. (Pietka v. Chelco Corp. (1982), 107 Ill. App. 3d 544, 558, 437 N.E.2d 872.) The trial court made the finding that defendant was vexatious by its refusal to pay. Defendant challenges the trial court’s finding as incompatible with the jury’s verdict for less than the amount claimed. Defendant also argues that without a trial it could not determine how much, if anything, it owed to plaintiff.

Without the trial record, it must be presumed that the trial court’s finding of vexatious and unreasonable delay of payment was supported by the evidence. (See Brandel Realty Co. v. Olson (1987), 159 Ill. App. 3d 230, 233, 512 N.E.2d 85 (where the record on appeal does not show or purport to show all the evidence on which the decision of the trial court was based, it will be presumed by the reviewing court that the evidence omitted would support the decision of the lower court).) Such a finding is not necessarily incompatible with a verdict of less than that demanded by the complaint, at least where the difference between the amounts is not significant. The smaller verdict demonstrates defendant’s liability for some amount and does not mean that, as a matter of law, defendant could not have been vexatious and unreasonable in delaying payment. The award of prejudgment interest can therefore be upheld on the basis of defendant’s vexatious and unreasonable conduct.

The order awarding fees and expenses against Lustig personally is reversed, the order awarding prejudgment interest is affirmed, and the cause is remanded in order for the trial court to enter an award of sanctions against only Newman/Lustig & Associates in the amount of expenses incurred by plaintiff after defendant filed its original answer.

Reversed in part; affirmed in part and cause remanded.

RIZZI and WHITE, JJ., concur.


source: Caselaw Access Project

author: JUSTICE FREEMAN

license: Public Domain

text:
    NEELY DOTSON, Adm’r of the Estate of Ida Dotson, Deceased, Plaintiff-Appellant, v. SEARS, ROEBUCK & COMPANY, Defendant-Appellee.
    First District (3rd Division)
    No. 1—88—3157
    Opinion filed May 23, 1990.
    Lane & Munday, of Chicago (John J. Munday, of counsel), for appellant.
    Arnstein & Lehr, of Chicago (Arthur L. Klein, Patrick F. Geary, and Kurt J. Heinz, of counsel), for appellee.
   JUSTICE FREEMAN

delivered the opinion of the court:

Plaintiff, Neely Dotson, appeals from a judgment entered on a jury award of $450,000 for plaintiff as the administrator of the estate of Ida Dotson upon a retrial of his wrongful death action against defendant, Sears, Roebuck & Company. This is the second appeal in this case. In the first (Dotson I), this court, inter alia, vacated a $1.7 million award to the estate of Ida Dotson. (157 Ill. App. 3d 1036, 510 N.E.2d 1208.) The only facts which we need repeat here are that plaintiff and Ida Dotson were husband and wife, that the trial concerned damages only, defendant having admitted liability, and that plaintiff remarried after Ida’s death.

On appeal, plaintiff’s sole contention is that the trial court erred in instructing the jury to limit his damages to the loss sustained from the time of Ida’s death to the time of his remarriage. Plaintiff asserts that the court should have, instead, instructed the jury that his remarriage did not mitigate his damages for the loss of Ida’s material services. We find this appeal to be a totally unsupportable attempt to relitigate an issue litigated in Dotson I and therein clearly and unequivocally decided against plaintiff. Consequently, we affirm the judgment of the trial court.

In bringing this appeal, plaintiff chiefly relies on Watson v. Fischbach (1973), 54 Ill. 2d 498, 301 N.E.2d 303. Watson held that, in Illinois, as in the majority of States that had by then considered the question, a surviving spouse’s remarriage did not affect the damages recoverable for the wrongful death of the deceased spouse. (Watson, 54 Ill. 2d at 500.) Plaintiff asserts that Watson required the trial court to give the instruction he requested.

Plaintiff concedes that this court previously decided that: (1) evidence of the quality of plaintiff’s marriage to Ida was improperly admitted at trial because plaintiff had withdrawn his claim for loss of consortium; and (2) the jury should have been informed of the remarriage and the identity of his new wife. Tacitly attempting to avoid the doctrine of the law of the case, however, plaintiff asserts that the precise issue of whether remarriage mitigates damages for loss of material services was not previously before this court. In so arguing, we believe that plaintiff has disregarded the issues raised by the parties in the first appeal and this court’s decision thereon, as reflected in our prior opinion.

In that appeal, defendant contended that, having withdrawn his claim for loss of consortium, plaintiff was improperly allowed to adduce evidence of the quality of his marriage to Ida. Plaintiff contended that that evidence was properly admitted at trial because the withdrawal of his claim for loss of consortium did not preclude a recovery for the loss of Ida’s material services and that evidence was relevant to those services. Dotson, 157 Ill. App. 3d at 1043.

In rejecting plaintiff’s arguments, this court noted that a spouse’s personal services have traditionally been recoverable in wrongful death actions; that notwithstanding Watson, claims for loss of consortium were not recoverable in such actions until Elliott v. Willis (1982), 92 Ill. 2d 530, 442 N.E.2d 163; that Carter v. Chicago & Illinois Midland Ry. Co. (1985), 130 Ill. App. 3d 431, 474 N.E.2d 458, had held that Elliott had implicitly overruled Watson and that evidence of remarriage was relevant to a claim for loss of consortium because recovery therefor was limited to “actual loss,” i.e., “loss up to the time of remarriage” (Carter, 130 Ill. App. 3d at 436). We further concluded that, although not specifically so held in Elliott or Carter, material services had always been a component of a claim for loss of consortium. We so concluded on the basis that the appellate court decision which Elliott affirmed and Dini v. Naiditch (1960), 20 Ill. 2d 406, 170 N.E.2d 881, which it cited in defining consortium, both defined consortium as including material services. We also concluded that the recovery for loss of material services allowed in wrongful death actions prior to Elliott had been a necessary departure from this general rule. Lastly, we concluded “that Elliott mandates a finding that material services are now recoverable in wrongful death actions only as part of a loss of consortium claim.” Dotson, 157 Ill. App. 3d at 1043-44.

Defendant next argued that, having improperly allowed plaintiff to separate and pursue a claim for lost services from his withdrawn claim for loss of consortium, the trial court further erred in excluding evidence of plaintiff’s remarriage. Plaintiff responded, inter alia, that Carter held evidence of remarriage relevant only to a claim for loss of consortium which did not include material services. Dotson, 157 Ill. App. 3d at 1044-45.

This court rejected plaintiff’s attempt to distinguish Carter. Specifically, we held evidence of remarriage properly admissible to limit his recovery for lost material services to actual loss, relying upon Carter. That holding was based on our disagreement with plaintiff that the claim for loss of consortium recognized in Elliott, and as to which remarriage was held relevant in Carter, did not include material services. Dotson, 157 Ill. App. 3d at 1045.

Dotson I thus clearly reveals that, contrary to plaintiff’s assertion, the issue whether remarriage mitigates damages for loss of material services was previously before this court. Specifically, it was put in issue by plaintiff’s argument, in defending the exclusion of evidence of his remarriage, that Carter held evidence of remarriage relevant only to a claim for loss of consortium not including material services. Given our conclusion that, after Elliott, material services are recoverable only as part of a loss of consortium claim, it necessarily followed that Carter’s holding had to be applied to claims for lost material services.

This holding, upon a question of law, constituted the law of the case binding both the trial court upon remand and this court upon a subsequent appeal and precluding a relitigation of the issue on the merits. (Gord Industrial Plastics, Inc. v. Aubrey Manufacturing, Inc. (1984), 127 Ill. App. 3d 589, 469 N.E.2d 389.) The only question we can consider in this appeal is whether the trial court followed our mandate. (Yonan v. Oak Park Federal Savings & Loan Association (1975), 27 Ill. App. 3d 967, 326 N.E.2d 773.) It is obvious from the very fact of this appeal that it did.

However, even if we consider plaintiff’s arguments on the merits, we reject them.

Again attempting to distinguish Carter, plaintiff argues that at the time it was decided no court had held that loss of material services was a component of a loss of consortium claim. As such, plaintiff asserts, “Carter did not [i.e., could not] hold that remarriage mitigates damages for loss of services.” Moreover, plaintiff argues that this court’s conclusion that loss of services is a component of consortium cannot change the pronouncements of the supreme court in Watson and Mulvey v. Illinois Bell Telephone Co. (1973), 53 Ill. 2d 591, 294 N.E.2d 689, that remarriage does not mitigate loss of services as an element of damages in a wrongful death action.

Preliminarily, we must disagree with plaintiff that, prior to Carter, it had not been held that lost material services were a component of a loss of consortium claim. The seminal case so holding and oft-cited for that very proposition is Dini v. Naiditch (1960), 20 Ill. 2d 406, 170 N.E.2d 881. (See also Dralle v. Ruder (1988), 124 Ill. 2d 61, 529 N.E.2d 209; Johanek v. Ringsby Truck Lines, Inc. (1987), 157 Ill. App. 3d 140, 509 N.E.2d 1295; Pease v. Ace Hardware Home Center (1986), 147 Ill. App. 3d 546, 498 N.E.2d 343; Countryman v. County of Winnebago (1985), 135 Ill. App. 3d 384, 481 N.E.2d 1255; Brown v. Metzger (1983), 118 Ill. App. 3d 855, 455 N.E.2d 834, aff'd (1984), 104 Ill. 2d 30, 470 N.E.2d 302; Martin v. Kiendl Construction Co. (1982), 108 Ill. App. 3d 468, 438 N.E.2d 1187; Coulter v. Renshaw (1981), 94 Ill. App. 3d 93, 418 N.E.2d 489; Sostock v. Reiss (1980), 92 Ill. App. 3d 200, 415 N.E.2d 1094; Wood v. Mobil Chemical Co. (1977), 50 Ill. App. 3d 465, 365 N.E.2d 1087.) Moreover, Dini noted that the elements of consortium are “welded into a conceptualistic unity.” It also noted that it was “but a theoretician’s boast” that consortium was “capable of dismemberment into material services and sentimental services.” (Dini v. Naiditch (1960), 20 Ill. 2d 406, 427-28, 170 N.E.2d 881.) In addition to Dini, we find most instructive of the fallacy of plaintiff’s position Martin v. Kiendl Construction Co. (1982), 108 Ill. App. 3d 468, 471, 438 N.E.2d 1187, which noted that “[t]he English common law recognized a loss of consortium action in the husband for loss of his *** wife’s services.”

We must also note that plaintiff has misconstrued the holding in Mulvey. Mulvey did not hold that remarriage was irrelevant to damages in a wrongful death case. While Watson did so hold, plaintiff presents no cogent argument for this court to reconsider its prior agreement with Carter that Elliott had implicitly overruled Watson. In fact, plaintiff does not even address that aspect of Carter.

Elliott held that loss of consortium was recoverable in wrongful death cases. (Elliott, 92 Ill. 2d at 541.) While the Elliott court did not include material services in its definitions of consortium (Elliott, 92 Ill. 2d at 535, 541), as we noted in Dotson I, it cited Dini in defining consortium and affirmed an appellate court decision which, like Dini, defined consortium as including such services. More importantly, we find from its discussion of Hall v. Gillins (1958), 13 Ill. 2d 26, 147 N.E.2d 352, Knierim v. Izzo (1961), 22 Ill. 2d 73, 174 N.E.2d 157, and Howlett v. Doglio (1949), 402 Ill. 311, 83 N.E.2d 708, that the inseparability of consortium into its various elements was at the heart of the Elliott court’s decision.

In deciding the issue before it, the Elliott court first noted that it had declined to recognize common law actions in tort for the destruction of the family unit (Hall, 13 Ill. 2d at 27) and for loss of consortium (Knierim, 22 Ill. 2d at 81). The court had done so because the remedies sought in Hall and Knierim were not significantly different from the remedy under the Wrongful Death Act, which allows recovery for “ ‘pecuniary injuries.’ ” The court noted the reasoning in Hall that the term “ ‘ “pecuniary injuries” ’ ” as used in the Wrongful Death Act was broad enough to include most of the items of damage claimed by the plaintiffs therein. (Elliott, 92 Ill. 2d at 535.) Those claims were loss of support, companionship, guidance, advice, love and affection. (Hall v. Gillins (1958), 13 Ill. 2d 26, 31, 147 N.E.2d 352.) The court also noted that Knierim had extensively relied upon Hall. Elliott, 92 Ill. 2d at 536.

The court then rejected the defendants’ reliance upon Howlett v. Doglio (1949), 402 Ill. 311, 83 N.E.2d 708, as supporting the conclusion that “ ‘pecuniary injuries’ ” under the Wrongful Death Act did not include loss of consortium. Howlett held, inter alia, that the term pecuniary loss or damage, as used to denote the types of injuries compensable under the Wrongful Death Act, was intended “ ‘ “to discriminate between a material loss which is susceptible of pecuniary valuation, and that inestimable loss of *** society and companionship *** upon which *** it is not possible to set a pecuniary valuation.” ’ ” The court held, inter alia, that Hall and Knierim had implicitly overruled the Howlett reasoning. Elliott, 92 Ill. 2d at 536-37.

The Elliott court’s discussion of Hall, Knierim and Howlett indisputably evinces an underlying assumption that consortium is indivisible into its various elements. As such, Elliott, together with Dini and its progeny, conclusively reveal the fallacy of plaintiff’s assertion that, prior to Carter, no court had ever held material services to be part of a loss of consortium claim. It unavoidably follows therefrom that, as Carter implies in construing Elliott as overruling Watson, after Elliott remarriage limits a claim for material services as much as it limits any other element of consortium.

In fact, as defendant notes, material services may be the element of consortium to which remarriage is most relevant, such services being more readily replaceable than the intangible elements of consortium such as love, guidance and affection, etc. As such, plaintiff’s position is without merit.

For all the foregoing reasons, we affirm the judgment for plaintiff.

Affirmed.

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


text:
      In re ESTATE OF ANTHONY J. SUTERA, Deceased (Joseph Sutera et al., Petitioners-Appellants, v. Mary Ann Pulizzano et al., Respondents-Appellees).
    First District (3rd Division)
    No. 1—89—1559
    Opinion filed May 23, 1990.

      Melvin A. Brandt, of Chicago, for appellants.
    Keith E. Morehead, of Morehead & Flynn, of Chicago, for appellees.
   JUSTICE FREEMAN

delivered the opinion of the court:

Petitioners, Joseph Sutera, Frank Sutera, Jennie Sutera Simone, Sandra Holtrop, Edward Holtrop, Jr., and Matthew Holtrop, are heirs at law of decedent, Anthony J. Sutera. They filed a petition on January 23, 1986, to contest decedent’s will which appointed respondent Mary Ann Pulizzano as executrix and named respondents Debby and Darlene Pulizzano as residuary legatees. (Ill. Rev. Stat. 1985, ch. 110½, par. 8—1.) The petition was dismissed by the circuit court in November 1986. Following a successful appeal of the dismissal to this court (In re Estate of Sutera (1988), 166 Ill. App. 3d 1147 (unpublished order under Supreme Court Rule 23)), the matter was reinstated on November 28, 1988. Respondents subsequently moved to dismiss the reinstated petition, and their motion was granted January 24, 1989, by the circuit court with an allowance for petitioners to amend. On February 21, 1989, petitioners filed their amended petition which the trial court dismissed on May 23, 1989, without leave to amend, for failure to state a cause of action. Petitioners appeal the dismissal of their amended petition and contend that: (1) the amended petition alleged sufficient facts to state a cause of action for both undue influence and lack of testamentary capacity; and (2) even if the petition was insufficient, petitioners should be allowed leave to amend in the interests of justice.

The decedent’s will bequeathed his entire estate to two nieces, Debby Pulizzano and Darlene Pulizzano, and appointed their mother, Mary Ann Pulizzano, a sister of the testator, as executrix. The will was admitted to probate on November 15, 1985, and on January 23, 1986, petitioners, who are two brothers, a sister, a niece, three grandnephews and a grandniece of decedent, filed a petition to contest the will. Petitioners alleged that the will was the result of duress (count I) and undue influence (count II) exercised upon decedent by Mary Ann Pulizzano, and that decedent lacked the mental capacity to make a will at the time of the will’s execution (count III).

On March 10, 1986, respondents filed a motion to strike and dismiss the petition arguing that it did not comply with the provisions of section 8 — 1 of the Probate Act, which requires a will contest petition to name all legatees and heirs, their addresses if known, and whether any of the parties are minors. (Ill. Rev. Stat. 1985, ch. 110½, par. 8—1.) On November 5, 1986, petitioners filed a late supplement to the petition containing the names of the eight petitioners and their addresses. Two weeks later, on November 20, 1986, the trial court dismissed the petition with prejudice pursuant to section 2—1301(d) of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2—1301(d)).

On December 22, 1986, petitioners filed a motion to vacate this dismissal, arguing that respondents had previously failed to respond or appear for a noticed deposition and had not appeared in court in response to a notice of motion, and that their counsel had not failed to appear for the November 20, 1986, hearing, but had simply appeared late. The trial court, however, denied petitioners’ motion to vacate, and petitioners appealed the dismissal.

On May 11, 1988, this court set aside the dismissal of the petition, finding that the record did not reveal that petitioners had failed to comply with court orders and that there was at least some lack of diligence by both parties. This court also stated that petitioners had demonstrated the existence of a meritorious claim only for purposes of section 2—1301(e) of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2—1301(e)). On November 28,1988, petitioners’ case was reinstated.

On December 19, 1988, respondents filed a second motion to dismiss, alleging generally that the petition failed to state a cause of action because it contained only conclusional allegations. On January 24, 1989, the trial court dismissed the petition, holding that it was substantially insufficient at law, but allowing petitioners 30 days to file an amended petition.

On February 21, 1989, petitioners filed an amended petition which stated:

“Now comes the petitioners, heirs at law of the deceased Anthony J. Sutera, namely; Joseph Sutera, brother; Frank Sutera, brother; Jennie Simone, sister; Edward Holtrop, Jr., grandnephew; Matthew Holtrop, grand-nephew; and Ricky Holtrop, a minor, grand-nephew ***.”

Count I alleged that the decedent had been declared incompetent on July 31,1985, and had been suffering from

“extreme congestive heart failure for a period prior to the execution of the will *** which caused him to have poor blood circulation; resulting in his being incapable of understanding the nature of his acts or to make any rational decisions of any kind concerning his personal and financial matters; *** severe coronary artery disease causing shortness of breath and chest pains that further impaired his ability to understand what property he had and did not have the mental capacity to make a valid will.”

Court II alleged:

“That the decedent was a homosexual person and was very apprehensive of being placed in any nursing home or similar institution.
That the respondent *** threatened to expose the deceased unless he agreed [sic] to do whatever the respondent *** wished.
The domination and intimidation by said respondent was complete and exclusive resulting in the deceased being totally without any free agency of his own.
The complete domination over the free will of the deceased was enhanced by the declining physical condition *** of the decedent.
The aim and purpose of the *** respondent *** was to compel the deceased to execute a last will and testament in favor of her daughters *** to the exclusion of the other lawful heirs of the deceased.
The resulting will *** was the product of duress exercised upon the deceased by respondent Mary Pulizzano.”

On March 20, 1989, respondents filed a third motion to dismiss which maintained that petitioners’ amended petition was deficient because it failed to join all heirs and legatees as parties, failed to allege the interests of the petitioners so as to establish jurisdiction, and failed to set forth sufficient factual allegations to state a cause of action for lack of testamentary capacity or duress. More specifically, respondents claimed that the petition contained no allegations which recited the manner in which the free will of the testator was impaired at the time the instrument was executed. On May 23, 1989, the trial court dismissed petitioners’ amended petition for failure to state a cause of action and denied petitioners leave to amend because the cause was four years old.

Section 2—603 of the Illinois Code of Civil Procedure provides in pertinent part that “[a]ll pleadings shall contain a plain and concise statement of the pleader’s cause of action.” (Ill. Rev. Stat. 1987, ch. 110, par. 2—603.) The law requires that petitioners state pertinent facts to support their claim, and pleading requirements are not complied with by the use of language which is purely conclusional. Pfendler v. Anshe EmetDay School (1980), 81 Ill. App. 3d 818, 822, 401 N.E.2d 1094.

Undue influence sufficient to invalidate a will is defined as:

“[T]hat influence which prevents the testator from exercising his own free will in the disposition of his estate [citation] or which deprives the testator of free agency and renders the will more that of another than his own. [Citation.] The influence may be exerted at any time [citation] but must be directly connected with the execution of the will and operate at the time the will is made. [Citation.] The influence may be that of a third person, such as the spouse of a beneficiary, as well as that of direct beneficiaries.” (Emphasis added.) (Schmidt v. Schwear (1981), 98 Ill. App. 3d 336, 342, 424 N.E.2d 401.)

Furthermore,

“ ‘[T]he general rule in Illinois [is that] *** the pleading of undue influence in a will contest must contain a specific recital of the manner in which the free will of the testator was impaired at the time the instrument was executed. A mere conclusion that the testator was influenced by the persuasive or dominant nature of one of the beneficiaries is not sufficient.’ ” (Emphasis added.) Merrick v. Continental Illinois National Bank & Trust Co. (1973), 10 Ill. App. 3d 104, 111, 293 N.E.2d 767, quoting Sterling v. Kramer (1957), 15 Ill. App. 2d 230, 234, 145 N.E.2d 757.

In order to establish the lack of testamentary capacity, it must be shown that at the time the will was executed the testator lacked sufficient mental ability to know and remember who were the natural objects of his bounty, to comprehend the kind and character of his property and to make disposition of his property according to some plan formed in his mind. In re Estate of Dossett (1987), 159 Ill. App. 3d 466, 472, 512 N.E.2d 807.

As a preliminary matter, respondents argue that the first amended petition failed to allege the interests of the petitioners and was, therefore, properly subject to dismissal in accordance with the authority of Wheeler v. Wheeler (1890), 134 Ill. 522, 526, 25 N.E. 588. The jurisdiction of the equity court in Wheeler was stated to derive exclusively from the Probate Act of February 10, 1827 (Laws of 1827), and such jurisdiction could only be exercised in the mode and under the limitations therein prescribed. (Wheeler v. Wheeler, 134 Ill. at 525-26.) While the time limitation described in the 1827 Probate Act within which bills might be brought was considered jurisdictional, contrary to respondents’ argument, there is no indication from the opinion that the interests of the parties were necessary to have been alleged for jurisdiction to attach. Wheeler v. Wheeler, 134 Ill. at 526.

The jurisdiction of circuit courts to entertain will contests was discussed at length in In re Estate of Mears (1982), 110 Ill. App. 3d 1133, 1134, 443 N.E.2d 289. Mears concerned the dismissal of a petition contesting the validity of a will on the basis that it lacked jurisdiction because section 8—1(a) of the Probate Act provided that “all heirs and legatees of the testator must be made parties to the proceeding,” and the executor had not been named. (Ill. Rev. Stat. 1979, ch. 110½, par. 8—1(a).) This court held that while the statute mandated the joinder of the representative, the trial court was in error in determining that its jurisdiction flowed from the statute. Rather, since the 1970 Constitution, the jurisdiction of the circuit court is derived directly from the Constitution. While the legislature could still impose substantive conditions precedent to the exercise of jurisdiction after 1964, the only condition precedent to the exercise of jurisdiction in the case of will contests is that the petition be filed within the time limited by the statute after the admission of the will to probate. (Ill. Rev. Stat. 1979, ch. 110½, par. 8—1(a); In re Estate of Mears, 110 Ill. App. 3d at 1138.) Since the petition had been filed within the statutory period, the circuit court had jurisdiction.

Likewise, in the present case, it is uncontroverted that the petition was filed within the statutory period, the only condition precedent to the exercise of jurisdiction by the circuit court. (Ill. Rev. Stat. 1985, ch. 110½, par. 8—1(a).) Accordingly, the amended petition was not subject to dismissal on the basis that the trial court lacked jurisdiction. Thus, we may proceed to petitioners’ first argument.

Petitioners argue that count II of the amended petition alleged sufficient facts to support a cause of action based upon undue influence because it alleged decedent’s deteriorating physical condition and a specific threat by one respondent which was analogous to blackmail. Petitioners argue that the authorities cited by respondents, Merrick v. Continental Illinois National Bank & Trust Co. (1973), 10 Ill. App. 3d 104, 293 N.E.2d 767, and Heavner v. Heavner (1930), 342 Ill. 321, 174 N.E.2d 413, are distinguishable because they concern mere allegations that a testator was dominated and controlled, unlike the present case, where a specific threat against decedent has been alleged. For related support, petitioners cite Sterling v. Kramer (1957), 15 Ill. App. 2d 230, 237, 145 N.E.2d 757, for the proposition that a person exerting undue influence need not be alleged to have actually taken part in the preparation or execution of the will because the requirement that the influence must be operative when the will is executed can be met by proof of some controlling force that operates secretly and which overcomes the free will of the testator at the time of execution. Sterling v. Kramer, 15 Ill. App. 2d at 237.

However, we believe Sterling also demonstrates that a pleader must do more than allege the existence of a specific, secret controlling force and that the testator’s free will was thereby overcome. The complaint in Sterling contained detailed allegations of a conspiracy by one potential beneficiary and his wife to misrepresent the character of another potential beneficiary in a manner calculated to induce the testator to deny any inheritance to the second potential beneficiary. (Sterling v. Kramer, 15 Ill. App. 2d at 235.) The allegations of the complaint in Sterling, set forth in 17 counts, recite seven basic facts, including a conspiracy to force plaintiff from the testator’s home, a scheme to trick the testator into living with a neighbor to facilitate the conspiracy to force the plaintiff from the home, constant misrepresentations by defendants to the testator about the plaintiff during the months preceding the will’s execution at a time when the testator was in ill health and emotionally distraught, and that the testator executed the will because of the misapprehensions she had concerning the character of the plaintiff which were caused by constant misrepresentations defendants made during the months preceding the will’s execution. Thus, the petition in Sterling alleged in detail the manner in which the controlling force operated at the time the will was executed.

In contrast, in the present case, even though decedent’s deteriorating physical condition and a specific threat of exposure were alleged, petitioners have not alleged how that threat operated to overcome decedent’s free will so that he was induced to execute his will in respondents’ favor. Undue influence is that coercion which destroys the freedom of the testator and renders the instrument obviously more the offspring of the will of another, rather than his own. Ryan v. Deneen (1940), 375 Ill. 452, 455, 31 N.E.2d 582.

Petitioners here have merely alleged that decedent was dominated and intimidated by a specific threat of exposure with the result that he lacked free agency. This domination was alleged to be enhanced by his deteriorating physical condition. Such allegations are merely conclusional as to the operation of the alleged threat at the time the will was executed. To aver undue influence as a conclusion, facts must be stated warranting that conclusion and must go the extent of showing the testator was thereby deprived of his free agency. Ryan v. Deneen, 375 Ill. at 454.

In their brief, petitioners contend that “the testator is alleged to have executed his will under the fear that respondent’s threat would be carried out.” While such an allegation comes closer to those allegations sufficient to state a cause of action for undue influence, unfortunately the petition did not, in fact, contain such a statement. Consequently, we hold that the trial court properly dismissed count II of the petition for failure to state a cause of action predicated upon undue influence.

Petitioners secondarily argue that they have sufficiently alleged a cause of action in count I based upon lack of testamentary capacity. Respondents contend, however, that the allegations are insufficient as a matter of law in light of Dietzel v. Posen (1934), 278 Ill. App. 89. Our review of Dietzel indicates, however, that the petition there was declared insufficient because the allegation was not to the effect that the will was wholly the product of an unsound mind and memory, but was narrowly limited to a charge that the testator’s mind was so impaired that he was incapable of making a just and proper distribution of his estate. Such an allegation was not a charge of mental incapacity to make a will. Dietzel v. Posen, 278 Ill. App. at 95.

In the present case, the allegations are not simply that decedent’s ability to justly and properly distribute his estate was impaired, but that he “did not have the mentql,capacity to make a valid will.” Thus, in terms of the narrow issue of sufficiency posed by Dietzel, what degree of incapacity must be alleged, the allegations appear sufficient. The question remains, however, whether such allegations remain conclusional because they do not make sufficient connection with the execution of the will.

While there is a dearth of cases dealing with the adequacy of pleadings required to state a cause of action for lack of testamentary capacity, our research discloses American Bible Society v. Price (1886), 115 Ill. 623, 635-36, 5 N.E. 126, where the court stated: This view is reiterated in Anlicker v. Brethorst (1928), 329 Ill. 11, 20, 160 N.E. 197, where the supreme court stated that it was not necessary for a bill to name specifically the particular kind of unsoundness of mind nor the cause of mental unsoundness. See also Bailey v. State Bank (1983), 121 Ill. App. 3d 17, 22, 458 N.E.2d 1326.

“The bill, it has been seen, charges that the testator had become, and was at the time of the making of the will, of unsound mind and memory, thus, in effect, simply putting in issue his testamentary capacity, which, by our statute, is defined to be that of being of a prescribed age, and ‘of sound mind and memory.’ The only material question, manifestly, under, this allegation, was whether the writing produced was the product of an unsound mind and memory. The specific name applied to describe that unsoundness, the means whereby the unsoundness was caused, or how it came about that the unsound mind and memory caused this writing to be drawn and signed, were matters of evidence that need not be alleged, and, if alleged, need not be proved.” (Emphasis added.)

While Dietzel specifically delineates the degree and American Bible allows a limited factual description of the unsoundness of mind, we believe these cases also implicitly require an averment of a causal and temporal connection between that mental unsoundness and the execution of the will. In Dietzel, the court held that there was no sufficient allegation that the will was the product of an unsound mind and memory. (Dietzel v. Posen, 278 Ill. App. at 95.) In American Bible, the bill charged that the testator had become, and was at the time of the making of the will, of unsound mind and memory. (American Bible Society v. Price, 115 Ill. at 635-36.) In this regard, we are also mindful that lack of testamentary capacity must exist at the time the will was executed in order to invalidate that will; and further, we note that pleading requirements are not complied with by purely conclusional language.

Thus, we hold that the trial court properly exercised its discretion to dismiss the amended petition on the basis that the allegations were insufficient to state a cause of action for lack of testamentary capacity as well.

In conclusion, petitioners urge that even if dismissal of the amended petition was proper, they should be allowed leave to amend the petition again because the case was not actually four years old as the trial court had reasoned. They assert that this court previously determined that they had demonstrated the existence of a meritorious claim. Accordingly, the trial court should have liberally exercised its discretion to allow the amendment of their pleadings. Beauvoir v. Rush-Presbyterian-St. Luke’s Medical Center (1985), 137 Ill. App. 3d 294, 484 N.E.2d 841.

This court specifically stated that it was not deciding the merits of the case with respect to a motion to dismiss. Our conclusion that the petitioners had demonstrated a meritorious claim was stated to be only for purposes of a motion to set aside a default under section 2—1301(e). Ill. Rev. Stat. 1987, ch. 110, par. 2—1301(e).

Despite Illinois’ liberal policy of permitting amendment of pleadings, parties do not have an absolute right to so amend, but may do so only at the trial court’s discretion. (Ennis v. Illinois State Bank (1969), 111 Ill. App. 2d 71, 75, 248 N.E.2d 534.) The determining factor for superseding a trial court’s disallowance of a motion to amend must be found in a “clear abuse of discretion,” considering the peculiar facts and circumstances of the case and the impact upon all parties in permitting or not permitting the motion. (Ennis v. Illinois State Bank, 111 Ill. App. 2d at 75-76. See also In re Estate of Ariola (1979), 69 Ill. App. 3d 158, 171, 386 N.E.2d 862.) The purpose of the Probate Act is to permit an estate administration to get under way as quickly as possible, and yet to permit those who wish to question the will an adequate opportunity to test the validity of the will. In re Estate of Carr (1970), 126 Ill. App. 2d 461, 471, 262 N.E.2d 54; In re Estate of Ariola, 69 Ill. App. 3d at 171.

The respondents here have a right to have the validity of the will determined without further unnecessary delay. Petitioners filed their first petition to contest the will on January 23, 1986, approximately four years ago. At least 14 months of this four-year period were consumed by the petitioners’ successful appeal of that original petition’s dismissal for want of an appearance. On appeal, this court determined that there was at least some lack of diligence on the part of both parties. Following this court’s decision on February 24, 1988, petitioners did not move to reinstate their petition for at least six months until November 28, 1988. This original petition was subsequently dismissed for failure to state a cause of action on January 24, 1989, and petitioners were allowed 30 days to amend. They did so with allegations which elaborated upon decedent’s physical ailments in more detail. Subsequently, that amended petition was also dismissed on May 23, 1989, and this second appeal has consumed nearly 10 additional months. In view of this chronology and the trial court’s duty under the Probate Act to weigh the parties’ competing interests with respect to this will challenge, we believe the trial court properly exercised its discretion to deny leave to amend. Accordingly, we affirm the judgment of the circuit court.

Affirmed.

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


author: PRESIDING JUSTICE McMORROW

text:
    JOHN R. HIEBER, Plaintiff-Appellant, v. UPTOWN NATIONAL BANK OF CHICAGO, Defendant-Appellee.
    First District (4th Division)
    No. 1—88—2870
    Opinion filed May 24, 1990.
    Thomas A. Else, Jr., of Oak Lawn, for appellant.
    John C. Livensparger, of Eklund & Eklund, of Chicago, for appellee.
   PRESIDING JUSTICE McMORROW

delivered the opinion of the court:

Plaintiff John R. Hieber appeals from the trial court’s entry of summary judgment in favor of defendant Uptown National Bank on plaintiff’s suit to enforce the terms of a trust agreement executed by Alma Evans (Evans) prior to her death. In entering summary judgment, the trial court determined that the trust agreement failed because it was not funded prior to Evans’ death. The trial court also concluded that the defendant properly refused to honor bank instruments executed by Evans to plaintiff in order to fund the trust, because these instruments were presented by plaintiff to defendant for payment after Evans’ death. We affirm.

The record shows that Evans executed a power of attorney in favor of plaintiff on July 1, 1985. Approximately a month thereafter, Evans executed a trust agreement naming plaintiff as trustee and beneficiary. In order to fund the trust, Evans also executed bank instruments enabling plaintiff to withdraw funds from accounts held by defendant. Two weeks after she executed the trust agreement and the bank instruments, Evans died. Later on the same day of Evans’ death, plaintiff presented the bank instruments to defendant for payment. Defendant refused to honor the instruments because of Evans’ death. Plaintiff filed suit to enforce the trust agreement and its funding by the instruments executed by Evans with respect to her accounts held by defendant. The trial court entered summary judgment in favor of defendant, and plaintiff appeals.

Plaintiff argues that Evans’ trust was valid following her death, notwithstanding plaintiff’s failure to present the bank instruments for payment while Evans was alive. We disagree. In order to be valid, a trust must be funded by an assignment of property from the settlor to the trustee. (See, e.g., Gurnett v. Mutual Life Insurance Co. (1934), 356 Ill. 612, 191 N.E. 250.) “A check or other draft does not of itself operate as an assignment of any funds in the hands, of the drawee available for its payment, and the drawee is not liable on the instrument until he accepts it.” (Ill. Rev. Stat. 1985, ch. 26, par. 3—409(1).) Thus, a check or draft “may effect a gift of money [to the trust] on the honoring of the instrument by the drawee or payor, but until it is accepted or honored no gift is completed and the death of the drawer will destroy its effectiveness.” (G. Bogert, The Law of Trusts and Trustees, ch. 9, §142, at 33-34 (2d rev. ed. 1979).) Because Evans died before the checks she had drafted were accepted for payment by defendant, the trust created by Evans did not survive her death. The power of attorney executed by Evans in favor of plaintiff also did not survive Evans’ death, since the power of attorney was coupled to the trust, and the trust was not effective upon Evans’ death. See, e.g., Wallace v. Foxwell (1911), 250 Ill. 616, 95 N.E. 985.

To support his position that Evans’ execution of bank documents operated as an assignment of the funds prior to her death, plaintiff relies upon First National Bank v. O’Byrne (1913), 177 Ill. App. 473. In that case, the court held that a settlor’s execution of bank instruments prior to the settlor’s death constituted a valid assignment of funds to the settlor’s trust. However, the holding of First National Bank is in direct conflict with the Illinois statutory provision that “[a] check or other draft does not of itself operate as an assignment of any funds in the hands of the drawee available for its payment, and the drawee is not liable on the instrument until he accepts it.” (Ill. Rev. Stat. 1985, ch. 26, par. 3—409(1).) For this reason, subsequent decisions have declined to follow the ruling of First National Bank. (In re Estate of Austin (1927), 243 Ill. App. 386.) On this basis, we also decline to follow First National Bank in the instant cause. The remaining cases cited by plaintiff are inapposite, since in none of the decisions did the settlor die before the bank instruments were presented for payment.

Plaintiff argues that the defendant was liable for the amounts stated in the bank instruments executed by Evans because the defendant failed to give plaintiff timely written notice of dishonor for these instruments. We disagree. Under section 3—508 of the Uniform Commercial Code, the defendant was obligated to give written notice of dishonor of the bank instruments to the payor of these instruments. (See Ill. Rev. Stat. 1985, ch. 26, par. 3—508.) As Evans was the payor, the bank was obligated to give written notice of dishonor to Evans. Plaintiff has cited no authority to support the proposition that, under section 3 — 508, defendant was also obligated to give written notice of dishonor to the payee, i.e., to plaintiff. Cf. Katz v. Belmont National Bank (1986), 112 Ill. 2d 64, 491 N.E.2d 1157 (employees whose payroll checks were returned for insufficient funds could not state a claim against defendant bank, since only possible right to immediate possession of funds was by employer who had account relationship with bank).

In addition, section 4—405 of the Uniform Commercial Code accorded to the defendant bank the discretion to refuse payment once the defendant learned of Evans’ death. (See Ill. Rev. Stat. 1985, ch. 26, par. 4—405.) There is nothing in section 4—405 that required the defendant to give written notice to plaintiff of the defendant’s refusal to honor the bank instruments in light of Evans’ death. Accordingly, we reject plaintiff’s claim that the defendant is liable for the amounts stated in the bank instruments executed by Evans on the theory that defendant should have given plaintiff timely written notice of dishonor.

For the reasons stated, the judgment of the circuit court is affirmed.

Affirmed.

JIGANTI and LINN, JJ., concur.


text:
    TANYA KOSHEL, Plaintiff-Appellant and Cross-Appellee, v. PUBLIC BUILDING COMMISSION OF THE CITY OF CHICAGO et al., Defendants (The County of Cook, Intervening Petitioner-Appellee and Cross-Appellant).
    First District (4th Division)
    Nos. 1—89—0186, 1—89—0562 cons.
    Opinion filed May 24, 1990.

      Corboy & Demetrio, P.C.,'of Chicago (Philip H. Corboy, Thomas A. Demetrio, and Francis P. Murphy, of counsel), for appellant.
    Cecil- A. Partee, State’s Attorney, of Chicago (Joan S. Cherry, Myra J. Brown, and Frank J. Oles, Assistant State’s Attorneys, of counsel), for appellee.
   PRESIDING JUSTICE McMORROW

delivered the opinion of the court:

Tanya Koshel (Koshel) appeals from the trial court’s denial of her motion to strike the workers’ compensation lien filed by the County of Cook (Cook County) in Koshel’s personal injury suit. We affirm.

The record reveals the following pertinent evidence. Koshel filed a personal injury suit against the Public Building Commission of the City of Chicago and others, for injuries she sustained when she slipped and fell on a newly waxed floor at the Daley Center. At the time of her injuries, Koshel was working for the clerk of the circuit court of Cook County (the Clerk). In addition to her personal injury suit, Koshel also sought workers’ compensation benefits from the Clerk. Cook County paid these benefits to Koshel pursuant to her workers’ compensation action against the Clerk. Koshel eventually settled her personal injury, suit and Cook County consented to this settlement. Thereafter Cook County sought a workers’ compensation lien on Koshel’s personal injury settlement, in order to recover the workers’ compensation benefits Cook County had previously paid to Koshel.

Koshel moved to strike Cook County’s request for a workers’ compensation lien on the grounds that at the time of her injuries, she was employed by the Clerk, and that as a result, Cook County was not her employer under the Workers’ Compensation Act (111. Rev. Stat. 1989, ch. 48, par. 138.2). Koshel also claimed that Cook County had no statutory obligation to pay, on behalf of the Clerk, the amounts due Koshel in workers’ compensation. In addition, Koshel argued that Cook County had no right of subrogation with respect to the funds paid by Cook County to her. Koshel renews these arguments on appeal from the trial court’s denial of her motion to strike.

We need not and do not decide whether Cook County was Koshel’s employer at the time of her injuries for purposes of workers’ compensation liability. Assuming arguendo that Cook County was not Koshel’s employer under the Workers’ Compensation Act (Ill. Rev. Stat. 1989, ch. 48, par. 138.2), Cook County nevertheless had a right of subrogation to recover the funds Cook County paid to Koshel in workers’ compensation.

Koshel argues that Cook County is not entitled to subrogation because it had no legal obligation to pay the workers’ compensation claim on behalf of the Clerk of the circuit court. As a general rule, “when one who is not acting as a mere volunteer or intruder pays a debt for which another is primarily liable and which in equity should have been discharged by the latter, the doctrine of subrogation applies.” (King v. King (1978), 57 Ill. App. 3d 423, 427, 373 N.E.2d 666.) Illinois courts have “stressed *** the necessity for a legal liability to exist in order to invoke the subrogation doctrine.” Inland Real Estate Corp. v. Tower Construction Co. (1988), 174 Ill. App. 3d 421, 431, 528 N.E.2d 421.

Cook County asserts that it has a legal obligation to pay the workers’ compensation benefits owed by the Clerk pursuant to section 27.3 of “An Act to revise the law in relation to clerks of courts” (Clerks of Courts Act), which states in pertinent part:

“The county board shall provide the compensation of Clerks of the Circuit Court, and the amount necessary for clerk hire, stationery, fuel and other expenses.” Ill. Rev. Stat. 1989, ch. 25, par. 27.3.

In our view, workers’ compensation benefits fall within the purview of this statutory provision. Cook County is the entity responsible for the payment of salaries and related expenses of the Clerk and the Clerk’s employees. (See Orenic v. Illinois State Labor Relations Board (1989), 127 Ill. 2d 453, 475-76, 537 N.E.2d 784.) In our opinion, the “other expenses” referred to in the Clerks of Courts Act include the payment of workers’ compensation benefits to the Clerk’s employees. Consequently, Cook County had a legal obligation to pay the amounts of workers’ compensation benefits owed by the Clerk to the Clerk’s employees.

Koshel also asserts that Cook County is not entitled to subrogation from Koshel because the payments made by Cook County were intended to benefit the Clerk of the circuit court, and were not intended to benefit Koshel. To support this assertion, Koshel relies upon Estate of Woodring v. Liberty Mutual Fire Insurance Co. (1979), 71 Ill. App. 3d 158, 389 N.E.2d 211, and In re Estate of Hammond (1986), 141 Ill. App. 3d 963, 491 N.E.2d 84. In both of these cases, the courts held that medical insurers of parents had no right of subrogation against proceeds received by the estates of the parents’ children. The courts reasoned that the insurers’ payments had been made to satisfy debts of the parents to third parties and that the minors’ estates received no benefit from the insurers’ payments on behalf of the parents. The instant cause bears no factual resemblance to either of the decisions upon which Koshel relies, and they are inapposite to the case at bar.

Koshel also appears to argue that Cook County has no right to subrogation because the Workers’ Compensation Act expressly permits only the employer to obtain a lien upon an employee’s recovery from a third party for injuries which formed the basis of the employer’s workers’ compensation payment to the employee. (See Ill. Rev. Stat. 1989, ch. 48, par. 138.5(b).) However, Illinois decisions have permitted third parties, other than the employer, to obtain a workers’ compensation lien based upon principles of subrogation. (See, e.g., Brandt v. John S. Tilley Ladders Co. (1986), 145 Ill. App. 3d 304, 495 N.E.2d 1269; Emberton v. State Farm Mutual Automobile Insurance Co. (1980), 85 Ill. App. 3d 247, 406 N.E.2d 219; Employers Mutual Casualty Co. v. Trimon Elevator Co. (1966), 71 Ill. App. 2d 124, 217 N.E.2d 391.) We can discern no sound reason to deviate from this precedent in the case at bar, and Koshel has offered none.

For these reasons, we affirm the trial court's denial of Koshel’s motion to strike Cook County’s workers’ compensation lien.

In a cross-appeal, Cook County seeks reversal of the trial court’s denial of Cook County’s motion for sanctions under section 2—611 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2—611). Cook County argues that section 2—611 sanctions should have been entered against Koshel because Koshel’s attempt to strike Cook County’s workers’ compensation lien was not “well grounded in *** law.” (Ill. Rev. Stat. 1989, ch. 110, par. 2—611.) Based upon our review of the record, we cannot say that trial court’s denial of Cook County’s sanction motion was an abuse of discretion, since the instant cause involves, in significant part, a question of first impression with respect to Cook County’s legal obligation to pay workers’ compensation benefits on behalf of the Clerk. See generally Chicago Title & Trust Co. v. Anderson (1988), 177 Ill. App. 3d 615, 532 N.E.2d 595.

For the reasons stated, the orders of the circuit court of Cook County are affirmed.

Affirmed.

LINN and JIGANTI, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. HAROLD WILLIAMS, Defendant-Appellant.
    First District (4th Division)
    No. 1—87—0416
    Opinion filed May 24, 1990.

      Paul P. Biebel, Jr., Public Defender, of Chicago (Crystal H. Marchigiani, Assistant Public Defender, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Kevin Sweeney, William B. Schiller, and Inge Fryklund, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE McMORROW

delivered the opinion of the court:

Following a jury trial, defendant was convicted of murder (Ill. Rev. Stat. 1985, ch. 38, par. 9—1(a)(1)) and attempted murder (Ill. Rev. Stat. 1985, ch. 38, pars. 8—4, 9—1(a)). He was sentenced to a term of natural life imprisonment without parole for the murder conviction, to be followed by a consecutive sentence of 30 years for the attempted murder conviction. On appeal, defendant contends that: (1) the trial court erroneously determined defendant had not made a prima facie showing that the State utilized peremptory challenges to exclude blacks from the jury in violation of Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712; (2) the State deprived defendant of a fair trial when it positioned a police “mug book” containing defendant’s photograph so that the photograph and police legend would be in plain view to the jury during trial; (3) the trial court erroneously excluded a photograph taken of defendant after his confession, offered by defendant to show that his confession was coerced by police officers; and (4) the trial court erroneously sentenced defendant to a term of natural life imprisonment because of an improper finding that the murder was brutal and heinous. We remand for further proceedings with respect to the State’s use of peremptory challenges in jury selection, but otherwise affirm the trial court’s judgment.

Defendant’s convictions arose from an incident occurring on July 28, 1985. On that date, J.M. boarded a bus at approximately 2 a.m. intending to return to her home, which she shared with her grandmother. J.M. met defendant on the bus and they talked and exchanged names and addresses. Defendant walked J.M. home, and she invited him into the house. While defendant was still in the home, J.M. fell asleep.

In a signed statement given to police during interrogation following his arrest, defendant admitted that he stabbed J.M.’s grandmother after J.M. had fallen asleep. J.M. testified at trial that she awoke, saw that her grandmother was hurt, and saw defendant holding a pocket knife and standing in front of her grandmother. J.M. also testified that defendant then told J.M. to remove her clothes, took her into a bedroom, and forced upon her acts of criminal sexual assault. J.M. testified that defendant then left the apartment, taking some silver jewelry from a table as he departed. He returned shortly thereafter to retrieve his hat and comb, and left the residence. J.M.’s grandmother later died of a stab wound to her back.

J.M. identified defendant’s photograph among a set shown to her by Chicago police officers on July 31, 1985. Defendant was arrested approximately a week later and gave an oral and written inculpatory statement to officers regarding his involvement in the incident. Based upon this evidence, defendant was convicted and sentenced as previously noted, and now appeals.

Defendant argues first that the trial court erred in its conclusion that defendant had not made a prima facie showing that the State utilized its peremptory challenges to exclude blacks from the venire in violation of Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712, which was decided before defendant’s case came to trial.

The Illinois Supreme Court has set forth the following guidelines with respect to a defendant’s claim of a prima facie case in the State’s use of peremptory challenges:

“To establish a prima facie case of discrimination under Bat-son, a defendant must first show that ‘he is a member of a cognizable racial group’ and that the State has utilized ‘peremptory challenges to remove from the venire members of the defendant’s race.’ The defendant may then ‘rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits “those to discriminate who are of a mind to discriminate.” ’ The defendant must then ‘show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race.’ (Emphasis added.) (Batson, 476 U.S. at 96, 90 L. Ed. 2d at 87-88, 106 S. Ct. at 1723, quoting Avery v. Georgia (1953), 345 U.S. 559, 562, 97 L. Ed. 2d 1244, 1247-48, 73 S. Ct. 891, 892.) In deciding whether the defendant has established a prima facie case, ‘the trial court should consider all relevant circumstances.’ (Emphasis added.) Batson, 476 U.S. at 96-97, 90 L. Ed. 2d at 88, 73 S. Ct. at [1723].
In light of the Supreme Court’s instructions in Batson, this court has repeatedly emphasized that in determining whether a prima facie case of discrimination exists, a 'court must avoid arbitrarily deciding this delicate question solely from the number of blacks peremptorily challenged.’ [Citations.] Instead, a court must consider other relevant circumstances. These circumstances may include, but are not limited to, the following:
‘[A] “pattern” of strikes against black jurors; “the prosecutor’s questions and statements during voir dire examination and in exercising his challenges” [citation]; the disproportionate use of peremptory challenges against blacks [citations]; the level of black representation in the venire as compared to the jury [citations]; whether the excluded blacks were a heterogeneous group sharing race as their only common characteristic [citation]; the race of the defendant and victim [citations]; and the race of the witnesses [citation].’ (People v. Evans (1988), 125 Ill. 2d 50, 63-64.)
Another factor which a judge may consider is the conduct of the prosecutor in previous cases. [Citation.]” Holman, 132 Ill. 2d at 172-73.

See also People v. Harris (1989), 129 Ill. 2d 123, 173-77, 544 N.E.2d 357.

Applying these guidelines to the case at bar, we conclude that the record reveals a prima facie case of racial discrimination in the State’s use of peremptory challenges. Our conclusion is based, first, upon the State’s disproportionate use of peremptory challenges against blacks. Although 13 of the 36 prospective jurors were black, i.e., approximately 33% of the venire, the State exercised eight of its nine peremptory challenges to exclude black jurors, and only one was chosen to serve on the jury (approximately 8%). White prospective jurors, in comparison, number 18 of the venire (i.e., approximately 50%), yet the State used only one peremptory challenge to exclude a white person, and defendant’s jury was composed of seven whites (approximately 59% of the final jury composition). Defendant utilized three peremptory challenges to exclude prospective black jurors. Thus, the disparate racial composition of the jury did not result from a marked difference in the number of black and white prospective jurors, but from the State’s use of almost all of its peremptory challenges to exclude prospective jurors who were black.

Our holding is also based on the circumstance that the black prospective jurors challenged by the State were a heterogeneous group whose only common characteristic was their race. The eight blacks excused by the State were as follows (we note that juror Annie S. was also challenged by defendant):

Tyrone R., a 22-year-old, who lived in a southern suburb, had worked for a year as a child attendant for a public school, for six months as an orderly in a nursing home, and for three years at a department store warehouse. He had never previously served on a jury, knew no one who worked in law enforcement or in law in any capacity, and his only personal exposure to crime had occurred a month and a half earlier when a family member’s purse had been stolen.
Marcia W., who lived on the south side of the City of Chicago and had worked for the last 8V2 years as an associate programmer analyst with a city newspaper. Her husband had been a mail handler for almost 20 years. She knew no one who worked in law enforcement and had never before been on a jury. Her mother’s purse had been taken about 10 years earlier.
Patrick S., who lived on the south side of the City of Chicago, was unemployed but had worked as a clerk typist for a little over a year. He had a cousin who was a security guard, although he did not know the name of the company and never talked to him about his work. This was his first time on a jury, and he knew no one who had ever been a victim of or charged with a crime.
Annie S., who lived in southeast Chicago and worked as an assistant housekeeping supervisor with a company where she had worked for 10 years. Her husband was a factory worker, and no family or close friends were in the field of law or law enforcement. She had five adult children. Neither she, nor any family member or close friend, had ever been the victim of a crime, or charged with a crime.
Robert I., who lived in south Chicago, and although unemployed for the last year, had worked the previous 15 years as a truck driver. He stated that his brother was a security guard at a department store, but that this would not affect his ability to be impartial. He was married, his wife had been employed as a clerical worker, and he had two children. He had never before served on a jury. He stated that his brother had been robbed at gunpoint “one time in the projects” about two years earlier and that the incident would not affect his ability to be impartial.
Janise K., who lived in south Chicago, and although currently unemployed, had worked seasonally as a program coordinator with the city for three years. Prior to this employment, she had worked as a literacy instructor and at the post office and a hospital for seven years. Her husband worked as a collector and more recently in consumer services, and she had two children. She stated that she had two close friends in law enforcement, that her brother worked in corrections at a juvenile court, and that she had not discussed their employment with them. She also said that she had gone to school for criminal justice as an undergraduate major and that she had been given probation about five years ago in a criminal case. She also informed the court that her house had been burglarized earlier in the year and that some family members had been the victims of minor crimes.
Hattie S., from south Chicago, who was not working at present, although had worked almost 30 years at factories. She was married, had two adult children, and said that her husband “does trucking rigs.” She stated that she had a cousin who was a police officer in the suburbs, that she never talked to him about his job, and that she would be able to remain impartial. She had never previously served on a jury. She also informed the court that eight years ago she had been beaten and robbed. She stated some hesitancy about returning a guilty verdict unless the proof of the defendant’s guilt were very clear, but assured the court that she would sign a guilty verdict if the State proved its case beyond a reasonable doubt.
Janette R, who lived on the south side and had been a teacher’s aide for almost 17 years and whose husband worked as a security guard. No member of her family or close friends were employed in the field of law or law enforcement. Two of her children were still at home, and five were adults. No member of her family or close friends had ever been the victim of a crime, nor had any been charged with or convicted of a crime.

As this listing shows, the blacks excused by the State were men and women of varied ages and backgrounds. Some were married, while others were not. Certain of the jurors had been gainfully employed for several years up to the date of trial (Marcia W., Annie S., Janette R), others had only begun their working careers (Tyrone R., Patrick S.), and still others were unemployed at the time of trial (Robert I., Janise K., Hattie S.). Several knew no one who either worked in law or law enforcement, had been the victim of a felony, or had been charged with or convicted of a crime (Tyrone R., Marcia W., Patrick S., Annie S., Janette R). It appears that none had ever previously served on a jury. Thus, the only common denominator among the group was that all of them were black.

In addition, the nonblack prospective jurors chosen to serve at defendant’s trial shared characteristics with the black jurors excluded by the State. For example, one juror at defendant’s trial, Cynthia V., had been working as a mail clerk for the previous six years. Her husband was an unemployed driver. She knew no one who worked in law enforcement or who had been the victim of or charged with a crime, and it was her first time to serve on a jury. Another juror who served at defendant’s trial, Patricia R, had worked for 10 years as a law librarian and was married. She stated that one of her brothers-in-law was a police officer and another was a probation officer, but that she never talked to them about their work. Although Patricia P.’s purse had been taken about a year ago and items had been stolen from her yard as well as the yards of her neighbors, she had no other family members or close friends who had been victims of crimes. In these respects, Cynthia V. and Patricia P. were similar to Marcia W., Annie S., and Janette P., all of whom were excluded by the State.

Also, several of the nonblack persons who served on the jury at defendant’s trial had either been convicted of a crime (Andrew B., who had been arrested for auto theft when he was a teenager; James D., who had been convicted of battery and given one year’s supervision as a teenager; Ramon G., who had been convicted of drunken driving 15 years ago, given one year probation with a three-year license suspension, and informed the court that this occurred because he “had no lawyer. I had no money to do it. They would not appoint me one so they discriminated me otherwise [sic]”). Only one of the black jurors excluded by the State had a criminal conviction (Janise K., probation).

The State asserts that there was no prima facie showing of racial discrimination in' the instant cause, because one of the jurors and one alternate juror were black. However, it has been “repeatedly held that the presence of blacks on the jury does not preclude the court from finding that the defendant has established a prima facie case of discrimination.” (People v. Harris (1989), 182 Ill. App. 3d 114, 119, 537 N.E.2d 977, citing People v. Seals (1987), 153 Ill. App. 3d 417, 505 N.E.2d 1107; People v. Johnson (1986), 148 Ill. App. 3d 163, 498 N.E.2d 816; People v. Kindelan (1986), 150 Ill. App. 3d 818, 502 N.E.2d 422.) The State also notes that the possibility of prejudice to the defendant was less in this case, because the victim and the defendant were both black. Nevertheless, we find the commonality in race between the defendant and victim insufficient basis to destroy the inference of unlawful discrimination presented in the case at bar, given the great disparity in the State’s use of peremptory challenges to exclude black as compared to white jurors, the predominantly white composition of the jury, and the heterogeneity of the excluded black jurors.

We are also not persuaded by the State’s argument that the black jurors were challenged for reasons other than race that related to their lack of employment or possible bias regarding the criminal justice system. These justifications were never given by the prosecutor at defendant’s trial, since the trial court refused to require the prosecutor to give his reasons for the use of peremptory challenges of the black venire. Consequently, we cannot determine on this record that the State had legitimate, nondiscriminatory reasons for its peremptory challenges of the excluded black jurors. As the Illinois Supreme Court emphasized in People v. Harris (1989), 129 Ill. 2d 123, 544 N.E.2d 357, “a court should not presume, or infer from the facts of the case, that an unarticulated neutral explanation exists. [Citation.] Rather, a court must focus its inquiry on the reasons actually articulated by the State.” 129 Ill. 2d at 184; see also Harris, 129 Ill. 2d at 194 (Ryan, J., concurring in part and dissenting in part) (“although the record may disclose an explanation for the exercise of a challenge, that explanation cannot be found to be adequate by either the trial court or a court on review, unless the prosecutor articulated that as a reason for exercising a peremptory challenge”).

We caution that our conclusion is not based exclusively on the number of peremptory challenges used by the State to exclude blacks. Rather, as in People v. Harris (1989), 129 Ill. 2d 123, 544 N.E.2d 357, our determination is also based on other relevant circumstances appearing in the record, including the notably different racial composition of the venire as compared to defendant’s petit jury, and the heterogeneity of the black prospective jurors excluded by the State. Thus, upon a consideration of all the relevant circumstances surrounding voir dire at trial, we conclude that the record discloses a prima facie case that the State exercised its peremptory challenges to exclude blacks from the jury serving at defendant’s trial, in violation of Batson. Accordingly, we remand the instant cause to the circuit court for further proceedings wherein the State will be required to provide race-neutral explanations for its use of peremptory challenges, and wherein the trial court shall make specific factual findings of whether these reasons were a pretext for unlawful discrimination.

Having disposed of defendant’s Batson argument, we turn to defendant’s claims regarding the fairness of his trial. Defendant argues first that the State deprived him of a fair trial when it positioned a police “mug book,” containing defendant’s photograph, on the prosecutor’s table so that the photograph and police legend would be in plain view to the jury during trial. The record shows that the book remained in this position only a few seconds, whereupon defendant objected.. The trial court ordered the State to close the book and denied defendant’s request for a mistrial. Defendant did not renew this objection in his post-trial motion, and the question is therefore waived on appeal. (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.) In light of the overwhelming evidence of defendant’s guilt, we cannot say that the State’s placement of the book amounted to plain error, or that it was so prejudicial to defendant that he should receive a new trial.

Defendant also asserts that the trial court erroneously excluded a photograph taken of defendant after his confession. The defendant offered the photograph to show that his confession had been coerced by police officers. We find no error in the trial court’s ruling. The trial court determined that the injuries depicted in the photograph were superficial abrasions. We accept this assessment since the photograph is not included in the record on appeal. Also, the offer of proof made by defense counsel on this issue indicates that the photograph was taken approximately 30 hours after defendant gave his court-reported statement to police authorities, and there was no evidence at trial to indicate the source of the injuries displayed in the defendant’s photograph. Accordingly, defendant did not lay a proper foundation for the admission of the photograph into evidence. See, e.g., People v. Donaldson (1962), 24 Ill. 2d 315,181 N.E.2d 131.

Defendant’s final argument pertains to the sentence imposed by the trial court. Defendant asserts that the trial court erroneously sentenced defendant to a term of natural life imprisonment because of an improper finding that the murder he committed was brutal and heinous. The record indicates that the trial court did not base the natural life sentence exclusively upon a finding of brutality or heinousness. The trial court imposed natural life imprisonment for the additional reason, justified under Illinois law, that defendant was eligible for the death penalty because he had committed the murder during the course of an aggravated criminal sexual assault. (See Ill. Rev. Stat. 1985, ch. 38, par. 9—1(6) (aggravating factors in murder conviction rendering a defendant eligible for death penalty include committing the murder during aggravated criminal sexual assault).) As a result, the trial court’s selection of natural life imprisonment was an appropriate exercise of the court’s discretion in the instant cause. See generally People v. La Pointe (1982), 88 Ill. 2d 482, 431 N.E.2d 344; People v. Perruquet (1977), 68 Ill. 2d 149, 308 N.E.2d 882.

For the reasons stated, the judgment of the circuit court is remanded with directions to hold a Batson hearing wherein the State will provide the bases for its peremptory challenges of the black prospective jurors excluded by the State during voir dire. If the trial court determines on remand that the State excluded any of the black prospective jurors because of race, the defendant shall receive a new trial. If the trial court finds on remand that the State did not use its peremptory challenges to exclude black prospective jurors because of race, the defendant’s conviction shall stand affirmed..

Remanded with directions.

JOHNSON and LINN, JJ., concur.